Ministers’ Deputies

Annotated order of Business and decisions adopted

CM/Del/Dec(2013)1172 7 June 2013



1172nd Meeting (DH), 4-6 June 2013



CONTENTS

A. General items 5
B. Examination of cases – Proposals from the Chair 6
C. Classification of cases 100
D. Supervision of payment of the just satisfaction 101
E. Action plans 101
F. Adoption of final resolutions – Preliminary list 103
APPENDICES 104

LIST OF PARTICIPANTS

The 1172nd meeting of the Ministers’ Deputies opened on 4 June 2013 at 10.00 a.m. under the chairmanship of Mr Helmut Tichy, Deputy for the Federal Minister for European and international Affairs of Austria (in red, invited experts from the capitals).

PRESENT

ALBANIA

Ms M. Gega

Mr R. Hoxha

Ms L. Mandija

ANDORRA

Ms F. Aleix Lartigue

ARMENIA

Mr S. Kartashyan

Mr A. Khachatryan

AUSTRIA

Mr H. Tichy, President

Mr S. Rutkowski

AZERBAIJAN

Mr E. Eyyubov

Mr J. Mirzayev

BELGIUM

Ms M. Janssens

BOSNIA AND HERZEGOVINA

Mr A. Săhović

Ms L. Ljubic-Lepine

Mr B. Babić

Ms B. Skalonjic

BULGARIA

Mr A. Tehov

Mr A. Ananiev

CROATIA

Ms L. Glavaš Kovačić

CYPRUS

Ms T. Constantinidou

Mr S. Hatziyiannis

Mr T. Pittakis

Lord Lester of Herne Hill QC

Ms S. Joannides

Mr S. Kyriacou

CZECH REPUBLIC

Mr M. Bouček

DENMARK

Ms M. Tzeggai

ESTONIA

Mr P. Pedak

FINLAND

Ms T. Leikas-Botta

FRANCE

Ms M. Bilocq

GEORGIA

Mr L. Meskhoradze

GERMANY

Ms V. Wolf

GREECE

Mr I. Asteriadis

Ms M. Solomou

Mr T. Zafeirakos

Ms I. Petropoulou

Ms C. Karavassili

HUNGARY

Ms A. Tóth-Ferenci

Mr A. Tóth

ICELAND

-

IRELAND

Mr P. Gunning

Mr R. Scannell

Ms R. Hynes

ITALY

Mr M. Jacoangeli

Mr G. Cavagna

Ms P. Accardo

LATVIA

Mr M. Klīve

LIECHTENSTEIN

Mr D. Ospelt

LITHUANIA

Ms U. Matulevičiené

LUXEMBOURG

Ms A. Kayser-Attuil

Mr B. Bollendorff

MALTA

Mr A. Ghigo

REPUBLIC OF MOLDOVA

Ms L. Ilieş

MONACO

-

MONTENEGRO

Mr Z. Pažin

NETHERLANDS

Mr J. Rademaker

NORWAY

Mr J. Høvik

POLAND

Ms K. Bralczyk

PORTUGAL

Mr L.F. Castro Mendes

Mr P. Neves Pocinho

Mr L. Sequeira

ROMANIA

Ms M. Marin

Mr D. Dumitrache

Ms I. Cambrea

RUSSIAN FEDERATION

Mr I. Podolskiy

Ms M. Molodtsova

Ms N. Zyabkina

Mr N. Mikhaylov

Mr G. Matyushkin

Mr S. Kovpak

Mr M. Protsyuk

Ms E. Nikulshina

Mr D. Gurin

SAN MARINO

Ms B. Para

Ms M. Bovi

SERBIA

Ms V. Radonjic-Rakic

Ms J. Backovic

Mr S. Caric

Ms V. Rodic

SLOVAK REPUBLIC

Mr M. Babicz

Ms K. Čahojová

SLOVENIA

Ms B. Sušnik

Mr H. Hartman

Mr G. Virant, Minister of the Interior

Mr L. Bembič

SPAIN

Mr L. Tarin Martin

SWEDEN

Ms S. Finnigan

SWITZERLAND

Mr B. Gubler

“THE FORMER YUGOSLAV

REPUBLIC OF MACEDONIA”

Mr P. Pop-Arsov

Mr T. Pavloski

Mr Z. Barbutov

TURKEY

Mr R.E. Soysal

Ms N. Erdem-Ari

Mr U. Acar

Mr Y. Yeşilada

Ms M.M. Şahin

Ms F.B. Okur

Ms S. Karabacak

Mr S. Dalyan

Mr M. Sahin

Mr N. Bekri

UKRAINE

Mr M. Kononenko

Mr N. Kulchytskyy

Ms D. Pistriak

UNITED KINGDOM

Mr M. Johnson

Ms L. Dauban

Mr S. Kelly

Ms C. Barbaglia

*

* *

EUROPEAN UNION

Ms L. Pavan-Woolfe

Mr G.C. Bruno

A. General items

Item a.

Agenda and approbation of the Order of Business

Decisions

The Deputies

1. agreed to add the cases of R.R. against Hungary and Oleksandr Volkov against Ukraine;

2. approved the order of business revised accordingly.

* * *

Item b.

Preparation of the next Human Rights meeting – 1179th meeting (September 2013)

The preliminary indicative list of cases to be included in the draft order of business of the 1179th meeting will be issued on 27 June 2013. Delegations are invited to indicate whether they wish to add cases for the 1179th meeting.

Decision

The Deputies took note of the fact that an indicative list of cases to be included in the draft order of business of the 1179th meeting, together with the time-table for the preparation of that meeting, will be issued on 27 June 2013.

B. Examination of cases – Proposals from the Chair

The state of execution of the cases which do not appear in the present order of business may be obtained from the Secretariat or on the website of the Department for the execution of the judgments and decisions of the European Court.

No.

Page

Cases

State

Judgment final on

Violation

Action required

Link to the last decision

1

12

MANUSHAQE PUTO AND OTHERS

DRIZA GROUP

ALBANIA

02/06/2008

17/12/2012

These cases concern the non-enforcement of final domestic court and administrative decisions relating to the applicants’ right to restitution or compensation (whether pecuniary or in kind) for property nationalised under the communist regime (violation of articles 6§1, 1, Protocol No.1 and 13).

The European Court in the pilot judgement Manushaqe Puto and others fixed a deadline of 18 months for the authorities to set up an effective compensation mechanism.

Assessment of the status of execution of this group of cases and of the appropriate response to be given in the absence of significant progress, despite repeated calls from the Committee (on the basis of a draft interim resolution).

1164th meeting

March 2013

2

17

MINASYAN AND SEMERJYAN GROUP

ARMENIA

23/09/2009

Violations of the applicants' right to peaceful enjoyment of their possessions due to the expropriation of their flats or the deprivation of their right to use of flats under conditions that are not prescribed by law (Article 1 of Protocol No. 1).

Take note of the action report provided by the Armenian authorities for the execution of this group of cases and instruct the Secretariat to present a detailed assessment of the said action report at the latest at the December 2013 DH meeting.

1100th meeting

(p. 19)

December 2010

No.

Page

Cases

State

Judgment final on

Violation

Action required

Link to the last decision

3

19

MURADOVA GROUP

AZERBAIJAN

02/07/2009

Excessive use of force by the police against the applicants (two of them journalists) during demonstrations and lack of an effective investigation in this respect (violations of Article 3 on substantive and procedural limb). Violation of Article 10 due to excessive use of force imposed on the applicant journalist (Najafli case).

Assessment of the status of execution of this group of cases on the basis also of the recent action plans submitted.

1100th meeting

(p. 31)

December 2010

4

21

MAHMUDOV AND AGAZADE GROUP

AZERBAIJAN

18/03/2009

Violation of right to freedom of expression

Take stock of the state of progress regarding the preparation of the law on defamation

1157th meeting

December 2012

5

24

M.S.

BELGIUM

30/04/2012

Applicant’s forced return to Iraq, following unlawful periods of detention.

Assessment of the progress made in respect of the individual measures.

1164th meeting

March 2013

6

26

SEJDIC AND FINCI

BOSNIA AND HERZEGOVINA

22/12/2009

Violation of right to free elections and discrimination against minorities.

Follow-up to the decisions adopted at the 1170th meeting

1169th meeting

30 April 2013

7

28

KEHAYOV GROUP

BULGARIA

18/04/2005

Conditions of detention in investigative detention facilities and in prisons (overcrowding, poor sanitary and material conditions) and lack of effective remedy in this respect.

Assessment of the state of progress in taking general measures (the authorities submitted a revised action plan on 09/04/2013).

1144th meeting

June 2012

8

31

BEKIR-OUSTA AND OTHERS GROUP

GREECE

11/01/2008

Violation of the right to freedom of association.

Follow-up to the decision adopted at the 1157th meeting regarding individual and general measures

1157th meeting

December 2012

9

34

MICHELIOUDAKIS + DIAMANTIDES No. 2 GROUP

GREECE

03/07/2012

19/08/2005

Excessive length of criminal proceedings and lack of an effective remedy (pilot judgment) (deadline expires on 03/07/2013).

Stress the importance to take promptly the necessary measures in order to introduce, within the time-limit set by the Court (03/07/2013), an effective remedy and take stock of the other measures presented by the authorities in their action plan.

1164th meeting

March 2013

No.

Page

Cases

State

Judgment final on

Violation

Action required

Link to the last decision

10

37

NISIOTIS GROUP

GREECE

20/06/2011

Inhuman and /or degrading conditions of detention

(overcrowding) in particular regarding the Ioannina prison (Article 46)

Assessment of the action plan and additional information submitted in this group of cases

First examination

11

40

KALUCZA

HUNGARY

24/07/2012

Failure of the authorities to protect the applicant from her violent former partner despite her repeated requests (Article 8).

Assessment of the measures taken and identification of those still outstanding, notably as regards the applicant’s current situation.

First examination

12

43

R.R.

HUNGARY

29/04/2013

Violation of four of the five applicants’ right to life on account of their exclusion from the witness protection programme (Article 2).

Information awaited on the urgent individual measures taken to secure adequate protection for these applicants.

New judgment

13

45

A. B. AND C.

IRELAND

16/12/2010

Absence of any legislative or regulatory regime providing access to lawful abortion when the mother's life is at risk.

Preliminary assessment of the the information presented in the updated action plan of 8 May 2013).

1164th meeting

March 2013

14

47

49

50

GROUP OF LENGTH OF JUDICIAL PROCEEDINGS AND PINTO REMEDY

- CETERONI GROUP

- LUORDO GROUP

- MOSTACCIUOLO GROUP

- GAGLIONE AND OTHERS

ITALY

15/11/1996

17/10/2003

29/03/2006

20/06/2011

Excessive length of judicial proceedings; insufficient amount and delay in payment of the awards made in the context of Pinto remedy; excessive length of the Pinto proceedings (violations of Articles 6, §1 and/or 1 of Protocol No. 1)

Follow-up of the reform of the financial system set by the “Pinto” Law announced by the authorities in November 2012. Assessment of the progress in the adoption of the measures aimed at remedying the structural problem of excessive length of judicial proceedings, in the light of the information submitted by the authorities on 10 April 2013 and of the assessment of the status of execution presented by the Execution Department in Memorandum CM/Inf/DH(2013)21

1157th meeting

December 2012

15

54

SULEJMANOVIC

ITALY

06/11/2009

Inhuman or degrading conditions of detention (overcrowding).

Follow-up to the decision adopted at the 1150th meeting, requesting further information and clarifications on the action plan, and to take account of the pilot judgment Torreggiani and others

1150th meeting

September 2012

No.

Page

Cases

State

Judgment final on

Violation

Action required

Link to the last decision

 

16

56

TARABURCA

REPUBLIC OF MOLDOVA

06/03/2012

Ill-treatment by police during post-election events in April 2009 and ineffective investigation (Art. 3)

Taking stock of the information provided by the authorities

First examination

 

17

59

STRĂIN AND OTHERS GROUP

MARIA ATANASIU

ROMANIA

30/11/2005

12/01/2011

Restitution/ compensation for nationalised property, pilot judgment, extended deadline to expire in May 2013.

Assessment of the new law adopted by the authorities with a view to executing the pilot judgment.

1164th meeting

March 2013

 

18

61

GARABAYEV GROUP

RUSSIAN FEDERATION

30/01/2008

Different violations related to extradition (Articles 3, 5 and 13); abduction and illegal transfer to Tajikistan of the applicants despite the official refusal of their extradition (Iskandarov and Abdulkhakov cases) and the indication by the Court of an interim measure (Abdulkhakov case).

Examination of the measures taken by the Russian authorities in response to an allegation that another similar incident took place on 8/03/2013 concerning another applicant in respect of whom the Court delivered its judgment in 2010 (case Yuldashev v. the Russian Federation). No other incidents have been reported since then.

1164th meeting

March 2013

19

64

ALEKSEYEV

RUSSIAN FEDERATION

11/04/2011

Repeated bans on gay marches (violation of Article 11; violation of Article 13 in conjunction with Article 11; violation of Article 14 in conjunction with Article 11).

Follow-up to the decision adopted at the 1150th meeting: assessment of the remaining part of the information provided by the Russian authorities on 25/01/2013 (DH DD(2013)67) in response to the Committee’s invitation to present a comprehensive action plan for the execution of this case (the issue relating to the so-called anti-propaganda laws was examined at the 1164th meeting).

1164th meeting

March 2013

20

68

GRUDIĆ

SERBIA

24/09/2012

Violation of the applicants’ right to peaceful enjoyment of their possession on account of the fact that the payment of their pensions earned in Kosovo* was suspended for more than a decade in breach of the relevant domestic law.

The new deadline set by the Court for taking the necessary measures will expire on 24/09/2013.

Taking stock of the measures adopted so far and identifying the outstanding issues.

1164th meeting

March 2013

* All reference to Kosovo, whether the territory, institutions or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo

No.

Page

Cases

State

Judgment final on

Violation

Action required

Link to the last decision

21

70

KURIĆ AND OTHERS

SLOVENIA

26/06/2012

Violation of right to private and family life of “erased” persons (i.e. “erasure” of resident status of an entire category of former citizens of Socialist Federal Republic of Yugoslavia at the time of Slovenia’s declaration of independence).

The deadline set by the Court to introduce a compensation scheme will expire on 26/06/2013.

Follow-up to the decision taken at the 1164th meeting and assessment of the status of execution, in particular in light of the deadline set by the European Court (26 June 2013).

1164th meeting

March 2013

22

74

78

CYPRUS

VARNAVA

TURKEY

10/05/2001

18/09/2009

14 violations in relation to the situation in the northern part of Cyprus.

Lack of effective investigation on the fate of nine Greek Cypriot who disappeared during the military operations by Turkey in Cyprus in 1974.

Continuation of debate from the 1164th meeting, in accordance with the decision adopted at that meeting (in particular examination of the issue of property rights of enclaved persons on the basis of the information document prepared by the Secretariat).

Examination of the issue of payment of the just satisfaction in the Varnava case.

1164th meeting

March 2013

23

80

DEMIREL GROUP

TURKEY

28/04/2003

Excessive length of detention on remand and lack of sufficient reasons justifying extension of such detention; lack of an effective remedy and lack of right to compensation (Article 5 §§ 3, 4 and 5)

Taking stock of the measures taken and identifying the outstanding issues

1100e réunion

December 2010

(p. 435)

24

84

HULKI GUNES GROUP

TURKEY

19/09/2003

Unfairness of criminal proceedings.

Debate at the request of Turkish authorities

1164th meeting

March 2013

No.

Page

Cases

State

Judgment final on

Violation

Action required

Link to the last decision

25

86

GONGADZE

UKRAINE

08/02/2006

Failure to protect the life of a journalist known to be critical of the authorities; ineffective investigation into his abduction and death; degrading treatment of his widow; lack of an effective remedy (Art. 2, 3 + 13)

Follow-up to the decision adopted in December 2012

1157th meeting

December 2012

26

89

KAVERZIN

AFANASYEV GROUP

UKRAINE

15/08/2012

05/07/2005

Ill-treatment by the police and ineffective investigations into such complaints (Art. 3 + 13)

Assessment of the general measures adopted and identification of the outstanding questions

- First examination

- 1100th meeting

December 2010 (p. 453)

27

93

LUTSENKO

UKRAINE

19/11/2012

Restriction of liberty also for other reasons than those permissible under Article 5 (Art. 18 in conjunction with Art. 5).

Follow-up to the decision adopted in March 2013, in particular as regards the information requested from the Ukrainian authorities on the special execution measures required in view of the violation found under Article 18 in conjunction with Article 5

1164th meeting

March 2013

28

96

OLEKSANDR VOLKOV

UKRAINE

27/05/2013

Unlawful dismissal of the applicant from his post as judge at the Supreme Court (Art. 6 + 8)

First examination : urgent individual measures (reinstatement of the applicant in his previous position as judge at the Supreme Court); urgent complex general measures (serious dysfunctioning of the Ukrainian judiciary)

New judgment

29

98

AL-JEDDA

UNITED KINGDOM

07/07/2011

Internment of an Iraqi civilian from 2004-2007 in a detention centre in Iraq, run by British forces.

Follow up to the decision adopted at the 1144th meeting (June 2012) and evaluation of the updated Action plan.

Examination of the possibility of transferring the case for examination in the standard procedure

1144th meeting

June 2012

ALBANIA

Application: 604/07, 33771/02

Judgment final on: 17/12/2012, 02/06/2008

MANUSHAQE PUTO AND OTHERS v. Albania DRIZA GROUP v. Albania

Enhanced procedure: complex problem/ pilot judgement

Reference texts:

Information document: CM/Inf/DH(2011)36

Action Plan (general measures for the Driza group) (06/05/2011) DH-DD(2011)316

Action Plan (individual measures, Driza case) (23/08/2011) DH-DD(2011)663

Action Plan (individual measures, Gjonbocari case) (23/08/2011) DH-DD(2011)662,
(05/11/2012) DH-DD(2012)1031

Action Plan (individual measures, case of Vrioni and others) (23/08/2011) DH-DD(2011)661

Action Plan (individual measures, Çaush Driza case) (05/11/2012) DH-DD(2012)1004rev

Action Plan (Çaush Driza case) (25/02/2013) DH-DD(2013)232

Updated action Plan (Çaush Driza case) (09/04/2013) DH-DD(2013)449

Action plan (Gjyli case) DH-DD(2012)1090

Communication from Albania (02/08/2012) DH-DD(2012)729 + appendix 1 and appendix 2

Communication from Albania (07/09/2012) DH-DD(2012)785

Communication from Albania (19/11/2012) DH-DD(2012)1091

Communication from Albania (10/04/2013) DH-DD(2013)412

Communication from Albania (Gjonbocari and others) (09/04/2013) DH-DD(2013)443

Communication from Albania (individual measures) (31/05/2013) DH-DD(2013)627

Communication from Albania (general measures) (31/05/2013) DH-DD(2013)628

Communication from Albania (on draft interim resolution) (31/05/2013) DH-DD(2013)629

Communication from Albania (04/06/2013) DH-DD(2013)634

Communication from NGOs and reply of the authorities (May 2013) DH-DD(2013)600

Communication from the applicants' representative (Manushaqe Puto and others) (15/04/2013)
DH-DD(2013)442

Communication from the applicants (Gjonbocari and others) (26/11/2012) DH-DD(2013)444

Communication from the applicant (Driza) (02/04/2013) DH-DD(2013)445

Communication from the applicants' representative (Manushaqe Puto and others) (31/05/2013) DH-DD(2013)630

Letter from the Registry of the European Court (Manushaqe Puto and others) (11/01/2013) DH-DD(2013)29

Memorandum on the individual measures : H/Exec(2013)2)

Decision adopted at the 1164th meeting (March 2013)

Case description: These cases concern the structural problem of failure to enforce final, domestic judicial and administrative decisions relating to the right of the applicants to restitution or compensation (whether pecuniary or in kind) for property nationalised under the communist regime (violations of Article 6§1 and Article 1 of Protocol No. 1) and the lack of an effective remedy in this respect (violations of Article 13). In view of the scale of the problem, the European Court delivered a pilot judgment in the Manushaqe Puto and others case (final on 17/12/2012) in which it requests the setting-up of an effective compensation mechanism within 18 months, namely before the 17 June 2014.

Other violations were also found in this group of cases: bailiffs' failure to secure enforcement of a Supreme Court decision, which recognised the applicants' property claim and ordered the occupiers to cease occupation of the untitled land (violation of Article 6§1, and of Article 1 of Protocol No. 1 in the case of Bushati); lack of legal certainty and lack of impartiality of the Supreme Court (violations of Article 6§1, in the case of Driza); excessive length of civil proceedings and lack of an effective remedy in this respect (violations of Articles 6§1 and 13, case of Gjonbocari and others).

Status of execution: Individual measures: All individual measures have been adopted in the cases of Beshiri and others, Bushati and others, Hamzaraj (No. 1), Nuri, Ramadhi and five others, Vrioni and others and Caush Driza. In the cases of Delvina and Eltari, the Court reserved the question of the application of Article 41. In the cases of Manushaqe Puto, Dani, Ahmatas and others and Muka, the Court awarded a sum in respect of pecuniary and non-pecuniary damages, which has not yet been paid.

To date, several questions still remain open in the cases of Driza and Gjonbocari (for further details see the document H/Exec(2013)2.

General measures: In the framework of the supervision that it has been conducting since 2007 on the execution of this group of cases, the Committee has called on the authorities on many occasions to rapidly take all necessary measures, without further delay, to execute the numerous final domestic decisions concerning the rights over property nationalised during the communist regime. In order to encourage action from the authorities, the Committee identified with them, notably thanks to the support of the Human Rights Trust Fund, a series of general measures to be urgently adopted, to achieve the establishment of an effective compensation mechanism, namely :

- the establishment of a list of final decisions,

- the finalisation of the land valuation map,

- and then, on the basis of these elements, calculate the cost of the execution of the decisions, in order to be able to define the resources needed, adopt the final execution mechanism, and execute – at the initiative of the authorities – the decisions in question, by adopting a step by step approach.

(See, in particular, the decision adopted in June 2012 at the 1144th meeting).

Having regard to the persistent ineffectiveness of the existing compensation mechanism, as well as the need to urgently grant the applicants appropriate and rapid damages at the national level, the European Court considered it necessary to apply the pilot judgment procedure in the case of Manushaqe Puto and others and set an 18 month deadline for the Albanian authorities to put in place an effective compensation mechanism, a deadline which expires on 17 June 2014. This pilot judgment confirms the decisions which have been adopted by the Committee since its 1144th meeting, including the requirement to take rapid measures.

At the last examination of this group of cases (see the decision adopted in March 2013, at the 1164th meeting) the Committee deplored the absence of progress and underlined once again the urgency of taking all the necessary general measures required, inviting the authorities to up-date the action plan for this group of cases and indicate therein binding deadlines for each of the steps which remain outstanding.

The general measures required in the case of Gjonboçari to remedy the excessive length of civil proceedings and the lack of an effective remedy are examined in the context of the Marini case (3738/02).

Application

Case

Judgment of

Final on

604/07+

MANUSHAQE PUTO AND OTHERS

31/07/2012

17/12/2012

DRIZA GROUP

Application

Case

Judgment of

Final on

33771/02

DRIZA

13/11/2007

02/06/2008

7352/03

BESHIRI AND OTHERS

22/08/2006

12/02/2007

6397/04

BUSHATI AND OTHERS

08/12/2009

14/02/2012

08/03/2010

14/05/2012

10810/05

CAUSH DRIZA

15/03/2011

15/06/2011

49106/06

DELVINA

08/03/2011

08/06/2011

16530/06

ELTARI

08/03/2011

15/09/2011

10508/02

GJONBOCARI AND OTHERS

23/10/2007

31/03/2008

45264/04

HAMZARAJ No.1

03/02/2009

06/07/2009

12306/04

NURI

03/02/2009

06/07/2009

38222/02

RAMADHI AND 5 OTHERS

13/11/2007

02/06/2008

35720/04+

VRIONI AND OTHERS1

29/09/2009

07/12/2010

29/12/2009

11/04/2011

1172nd meeting – Notes

To date, no consolidated and updated action plan has been presented by the Albanian authorities. The only information submitted concerns certain measures adopted within the framework of a global strategy relating to property rights for the 2012 to 2020 period (see DH-DD(2013)412). According to this information:

    ·the land valuation map has been finalised, taking into account land development and market fluctuations;

    ·a list of 164 final judicial decisions to be executed has been compiled, together with a list of 33,085 administrative decisions awarding restitution and/or compensation (for which it has not been clarified whether or not they are final decisions);

    ·a National Agency for Standardised Maps has been set up;

    ·a working group has been established with the task of, adopting an action plan by 17/06/2013, aimed at setting up an effective compensation mechanism.

Therefore, to date, only one of the measures identified as essential by the Committee and the European Court has been adopted: the finalisation of the land valuation map. Incomplete lists of decisions have been compiled, but the Committee has not yet received any precise information on the number of final administrative decisions to execute, the cost of the execution of these decisions, the resources required, all such information is indispensable for adopting a final and viable execution mechanism. No action plan has yet been submitted which demonstrates the will and capacity of the Albanian authorities to establish an effective compensation mechanism within the timeframe set by the European Court in its pilot judgment.

In view of the persistent lack of significant progress in this group of cases and an adequate response to the repeated requests from the Committee, and in accordance with the decision taken at the 1164th meeting, the Deputies may wish to examine with a view to its adoption the draft interim resolution appended, to stimulate the national execution process, at the highest level, in order that tangible progress may be achieved in response to the findings of the violations found by the Court over the last seven years and to the pilot judgment of Manushaqe Puto and others.

Decision

The Deputies adopted Interim Resolution CM/ResDH(2013)115 as it appears in document CM/Del/Dec(2013)1172, Volume of Resolutions.

Draft Interim Resolution CM/ResDH(2013)115

Execution of the pilot judgment Manushaqe Puto and 11 other judgments of the European Court of Human Rights concerning the failure to enforce final domestic judicial and administrative decisions relating to the right of the applicants to restitution or compensation (whether pecuniary or in kind) for property nationalised during the communist regime in Albania (see Appendix)

(Adopted by the Committee of Ministers on 6 June 2013

at the 1172nd meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter “the Convention”);

Recalling that this group of cases concerns the longstanding structural problem of the non-enforcement of final domestic judicial and administrative decisions relating to the right of the applicants to restitution or compensation (whether pecuniary or in kind) for property nationalised during the communist regime (violations of Article 6 § 1 and Article 1 of Protocol n° 1), as well as the lack of an effective remedy in that regard (violation of Article 13);

Recalling that in view of the scale and persistent ineffectiveness of the current compensation mechanism, the European Court of Human Rights delivered a pilot judgment in the case of Manushaqe Puto and others, in which it set an 18 month deadline – namely until the 17 June 2014 – for the Albanian Government to establish an effective compensation mechanism;

Underlining the support given by the Committee to the Albanian authorities, since it has been supervising the execution of this group of cases, in the identification of measures to adopt urgently in order to resolve this longstanding structural problem;

Noting with great concern that to date, only one of the measures identified has been finalised, namely the land valuation map, and that no action plan demonstrating the ability of the Albanian authorities to establish an effective compensation mechanism within the deadline set by the Court, has been submitted;

Recalling that the non-enforcement of domestic final decisions represents a grave danger to the rule of law, risks undermining the confidence of citizens in the judicial system, and as such calls into question the credibility of the State;

Underlining the obligation of every State, under the terms of Article 46, paragraph 1, of the Convention to abide by the final judgments of the European Court in any case to which they are a party,

    CALLS ON the Albanian authorities, at the highest level, to give the highest priority to the preparation of an action plan capable of establishing, within the deadline set by the European Court, an effective compensation mechanism, which takes account of the measures already identified with the support of the Committee.

Appendix

List of cases concerned

Application

Case

Judgment of

Final on

604/07+

MANUSHAQE PUTO AND OTHERS

31/07/2012

17/12/2012

DRIZA GROUP

Application

Case

Judgment of

Final on

33771/02

DRIZA

13/11/2007

02/06/2008

7352/03

BESHIRI AND OTHERS

22/08/2006

12/02/2007

6397/04

BUSHATI AND OTHERS

08/12/2009

14/02/2012

08/03/2010

14/05/2012

10810/05

CAUSH DRIZA

15/03/2011

15/06/2011

49106/06

DELVINA

08/03/2011

08/06/2011

16530/06

ELTARI

08/03/2011

15/09/2011

10508/02

GJONBOCARI AND OTHERS

23/10/2007

31/03/2008

45264/04

HAMZARAJ No.1

03/02/2009

06/07/2009

12306/04

NURI

03/02/2009

06/07/2009

38222/02

RAMADHI AND 5 OTHERS

13/11/2007

02/06/2008

35720/04+

VRIONI AND OTHERS2

29/09/2009

07/12/2010

29/12/2009

11/04/2011

ARMENIA

Application: 27651/05

Judgment final on: 23/09/2009

MINASYAN AND SEMERJYAN group v. Armenia

Enhanced procedure: Complex problem

Reference texts:

Action report (21/05/2013) DH-DD(2013)583

Communication from the applicants’ representative DH-DD(2013)631E

Decision adopted at the 1100th meeting (December 2010) (p. 19)

Case description: Violation of the applicants' (24 in total) right to the peaceful enjoyment of their possessions due to the deprivation of their property or of their right of use of accommodation, under conditions that are not prescribed by law, during an expropriation process for the purpose of implementing State construction projects in the center of Yerevan.

In the Minasyan and Semerjyan judgment (§§ 69-72), the Court held that the “entire expropriation process, including the procedure for determination of the amount of compensation, was unlawful”.

With respect to the right of the applicants to use property, which under Armenian law it is a distinct right (the family members of the owner of accommodation and other persons have the right of use of accommodation), the Court noted that the applicants' right of use was terminated with reliance on legal rules which were not applicable to their case (see Hovhannisyan and Shiroyan, § 44).

Status of execution: Individual measures: At its first examination of the Minasyan and Semerjyan cases (1100th DH, December 2010), the Committee of Ministers noted that the question of the application under Article 41 was reserved. The Article 41 judgments in the Minasyan and Semerjyan and Hovhannisyan and Shiroyan cases were delivered respectively on 07/06/2011 and on 15/11/2011. Noting that restitutio in integrum was not possible due to the demolition of the respective flats, the Court considered that the most appropriate and fair solution would be to award the applicants the probable value of their share in the flat at the material time converted to current value to offset the effects of inflation. In the light of the Court’s findings, no other individual measures seem necessary.

The same approach was followed in the recent judgments in the cases of Danielyan and others and Tunyan and others. Information on the payment of just satisfaction is awaited.

General measures: The judgments in the Minasyan and Semerjyan, Hovhannisyan and Shiroyan and Yeranosyan cases were translated and published on the official website of the Ministry of Justice.

Application

Case

Judgment of

Final on

27651/05

MINASYAN AND SEMERJYAN

23/06/2009

07/06/2011

23/09/2009

07/09/2011

5065/06

HOVHANNISYAN AND SHIROYAN

20/07/2010

15/11/2011

20/10/2010

15/02/2012

13916/06

YERANOSYAN AND OTHERS

20/07/2010

20/10/2010

25825/05

DANIELYAN AND OTHERS

09/10/2012

09/01/2013

22812/05

TUNYAN AND OTHERS

09/10/2012

11/02/2013

1172nd meeting – Notes

The Armenian authorities submitted an action report on 21/05/2013 which needs to be thoroughly assessed. The Secretariat will prepare such an assessment for the Committee on the basis of the following findings of the European Court:

- Regarding the violation in respect of deprivation of property, as noted by the Court (see § 71 of the judgment in the Minasyan and Semerjyan case), in accordance with the domestic law (Article 28 of the Constitution and the Constitutional Court’s decision from 27/02/1998), a private property could be expropriated for public needs only through the adoption of a law (in respect of the concrete property) by the National Assembly (Parliament).

- With respect to the violation of the right of use of accommodation, the Court held that a termination of the applicants’ right of use on the basis of rules applicable to owners was bound to result in an unforeseeable or arbitrary outcome and must have deprived them of effective protection of their rights. Consequently, the interference with the applicants' possessions on such a legal basis was arbitrary and unlawful (§ 76 of Minasyan and case, § 31 of Yeranosyan case, § 38 of Danielyan and others case).

Decisions

The Deputies

1. noted that, in this group of cases, the Court considered that the expropriation process for the purpose of implementing State construction projects was not carried out in compliance with “conditions provided for by law” on the grounds that certain applicants were deprived of their property by a number of Government decrees and not by a law as requested by the Constitution and the Constitutional Court, and that certain applicants were deprived of their right of use of accommodation on the basis of rules not applicable to their situation;

2. took note of the action report provided by the Armenian authorities for the execution of this group of cases and instructed the Secretariat to present a detailed assessment of the said action report at the latest at 1186th meeting (December 2013) (DH).

AZERBAIJAN

Application: 22684/05

Judgment final on: 02/07/2009

MURADOVA GROUP v. Azerbaijan

Enhanced procedure: complex problem

Reference texts:

Action plan (08/04/2013) (Rizvanov case) DH-DD(2013)389

Action plan (22/04/2013) (Najafli case) DH-DD(2013)451

National Programme for Action to Raise Effectiveness of the Protection of Human Rights and Freedoms:
DH-DD(2012)260

Statement of the Secretary General of the Council of Europe, (08/02/2013)

PACE, Resolution 1917(2013) “The honouring of obligations and commitments by Azerbaijan”

Observations on the human rights situation in Azerbaijan. Freedom of expression, freedom of association, freedom of peaceful assembly CommDH(2011)33

Information provided by the Azerbaijani authorities concerning the observations of the Commissioner for Human Rights. Freedom of expression, freedom of association, freedom of peaceful assembly CommDH(2011)34

Decision adopted at the 1086th meeting (June 2010)

Decision adopted at the 1100th meeting (December 2010) (p. 31)

Case description: These three cases concern excessive use of force by the police against the applicants during demonstrations by the opposition (demonstration of 16/10/2003 against the presidential election results in Muradova case; authorised demonstration by a group of opposition parties in November 2005 in the Rizvanov case; non-authorised demonstration organised by opposition parties in November 2005 in the Najafli case). In the three cases, the Court held that there was a substantive violation of Article 3 due to excessive use of force by the police (in Muradova case, the applicant lost her sight in one eye; in Najafli case, the Court noted that the applicant’s cranio-cerebral trauma and concussion required long-term medical treatment and the ill-treatment, as well as its consequences, also caused him considerable mental suffering, diminishing his human dignity).

In the three cases, the Court also held that there was a lack of effective investigation following the claims introduced by the applicants (see for the shortcomings highlighted by the Court, §§ 113-134 in the Muradova judgment; §§55-61 in the Rizvanov judgment; §§ 45-56 in the Najafli judgment).

In the Najafli case, the Court found also a violation of Article 10 of the Convention (freedom of expression) noting that irrespective of whether there was an intention to interfere with the applicant’s journalistic activity as such in the present case, what matters is that the applicant (journalist and editor in chief covering a demonstration) was subjected to unnecessary and excessive use of force, amounting to ill-treatment under Article 3 of the Convention, despite having made clear efforts to identify himself as a journalist who was simply doing his work and observing an event. In that respect, the Court recalled that the physical ill-treatment by State agents of journalists while the latter are performing their professional duties seriously hampers their exercise of the right to receive and impart information.

Status of execution: Individual measures: Muradova case: At its 1086th meeting (June 2010), the Committee noted that following the judgment of the European Court, the Office of the Government Agent asked the Prosecutor General’s Office to carry out an investigation on the facts of the case. Since then, no information has been provided to the Committee.

Rizvanov case: according to the action plan presented on 08/04/2013, the judgment of the European Court was sent to the Supreme Court with a view to the re-opening of the investigation. It is expected that the Plenum of that Court will examine this case at one of its following sessions.

Najafli case: on 02/04/2013, the General Prosecutor’s Office quashed the decision of the Sabail District Prosecutor’s Office regarding the suspension of the investigation against the police officers. The investigation was re-opened.

General measures: The judgment in the Muradova case was translated, disseminated to prosecutors and law enforcement officers and published. The other two judgments were translated with a view to their publication. The authorities informed the Committee (1100 meeting, December 2010) about the organisation of training sessions by of the General Prosecutor’s Office on the procedural aspects of effective investigations.

On 23-27 June 2012, a summer school for judges, prosecutors and defense lawyers was held in Baku. The summer school was devoted to the examination of the case law of the European Court regarding Articles 3,5,6,8,9,10 and 11 of the Convention.

Furthermore, “the National Programme for Action to Raise Effectiveness of the Protection of Human Rights and Freedoms” signed by the President of Azerbaijan on 27/12/2011 envisages “the organisation of training for law enforcement officers and media representatives in order to ensure the presumption of innocence.

Application

Case

Judgment of

Final on

22684/05

MURADOVA

02/04/2009

02/07/2009

31805/06

RIZVANOV

17/04/2012

17/07/2012

2594/07

NAJAFLI

02/10/2012

02/01/2013

1172nd meeting - Notes

Individual measures

The reopening of the investigations in the Rizvanov and Najafli cases is an encouraging sign. However, regarding the Muradova case for which the Office of the Government Agent had asked the Prosecutor General’s Office to carry out an investigation on the facts of this case, no information has been provided to the Committee since June 2010. It is important to receive information, as soon as possible, on the progress made regarding the re-opening of investigations in the three cases and to ensure that these investigations fully comply with the Convention requirements and the Court’s case law and rectify the shortcomings critisised by the Court.

General measures

To date the only information at the Committee’s disposal concerns information and awareness raising activities. In light of the specific issues addressed by the Court regarding the violations of Article 3 (both under its substantive and procedural angle), a range of measures appear to be necessary. Those measures need to address the way in which the authorities envisage preventing the practice of excessive use of force by law enforcement officials during demonstrations (see also along those lines, PACE Resolution 1917(2013); Statement of the Secretary General of 08/02/2013). Those general measures should also focus on the way to ensure that effective investigations into allegations of ill treatment are carried out without delay.

Furthermore, given that in the Najafli case, the Court found a violation of Article 10 on the grounds that the applicant was subjected to unnecessary and excessive use of force, contrary to Article 3, despite having made clear efforts to identify himself as a journalist covering a demonstration, it is essential that the specific measures envisaged aiming at not hampering journalistic activity are presented to the Committee.

Decisions

The Deputies

1. noted that in the Muradova group of cases, the Court found violations of Article 3 both under its substantive and procedural limb due to excessive use of force against the applicants by law enforcement officials during demonstrations and to the lack of effective investigations in that respect;

2. while noting the reopening of investigations in the cases Rizvanov and Najafli, recalled that the Committee has been waiting for information on the reopening of the investigation in the Muradova case since June 2010, and urged the authorities to inform the Committee of the developments occurred regarding the re-opening of investigations in the three cases, on measures taken to ensure that these investigations fully comply with the Convention requirements and the Court’s case-law and that the shortcomings criticised by the Court are rectified;

3. also urged the authorities to provide the Committee, as soon as possible, with a consolidated and updated action plan on the measures taken/envisaged to prevent excessive use of force by law enforcement officials during demonstrations and to ensure that effective investigations into allegations of ill treatment are carried out without delay;

4. noting that in the Najafli case, the Court also found a violation of the applicant’s freedom of expression on the grounds that he was subjected to excessive use of force although he had made clear efforts to identify himself as a journalist who was covering a demonstration, invited the authorities to include in their consolidated action plan information on the specific measures envisaged to prevent such impediments to the exercise of journalistic activity.

AZERBAIJAN

Application: 35877/04

Judgment final on: 18/03/2009

MAHMUDOV AND AGAZADE GROUP v. Azerbaijan

Enhanced procedure: complex problem

Reference texts:

Information document CM/Inf/DH(2011)7

Action Plan on the Mahmudov group (28/11/2011) DH-DD(2011)1078

Action plan in the cases of Farhad Aliyev, Salayev and Muradverdiyev (28/11/2011) DH-DD(2011)1081

Communication from Azerbaijan (18/09/2012) DH-DD(2012)837

Communication from Azerbaijan (general measures) (24/10/2012) DH-DD(2012)1002

Communication from Azerbaijan (19/11/2012) DH-DD(2012)1077

Communication from Azerbaijan (03/12/2012) DH-DD(2012)1130

Communication from Azerbaijan (29/05/2013) DH-DD(2013)619E

Joint statement by the Council of Europe Commissioner for Human Rights, the OSCE Representative on Freedom of the Media and the Vice-President of the European Commission “Enhancing freedom of expression in Azerbaijan” (7/11/2012)

Observations on the human rights situation in Azerbaijan. Freedom of expression, freedom of association, freedom of peaceful assembly (29/09/2011) CommDH(2011)33

Information provided by the Azerbaijani authorities concerning the observations of the Commissioner for Human Rights. Freedom of expression, freedom of association, freedom of peaceful assembly (29/09/2011) CommDH(2011)34

Statement of the Secretary General of the Council of Europe, 20/04/2012

National Programme for Action to Raise Effectiveness of the Protection of Human Rights and Freedoms:

DH-DD(2012)260

725/2013 - Draft Law on Protection from Defamation CDL-REF(2013)022 submitted to the Venice Commission

CommDH014(2013) press release

Decision adopted at the 1157th meeting (December 2012)

Case description: Violations of the right to freedom of expression (violations of Article 10) of the applicants, journalists, due in particular to (in both cases) unjustified use of imprisonment as a sanction for defamation (the Court found no special circumstances justifying such a sanction, such as incitement to violence or racial hatred, in any of the cases); (in Fatullayev), insufficient reasons invoked to justify defamation as regards some statements and arbitrary application of anti-terror legislation to sanction other subsequent statements.
The Fatullayev case also concerns violations of the right to an impartial tribunal as the judge in the first defamation case had already found against the applicant in a civil defamation case based on the same statements (violation of Article 6§1); declarations made by the public prosecutor in the case related to the application of the anti-terror legislation disrespected the presumption of innocence of the applicant (violation of Article 6§2).
In the first case, the applicants never served their prison sentences as a result of an amnesty; in the Fatullayev case the applicant was still serving his eight-year prison sentence when the Court's judgment was delivered and the Court accordingly ordered his immediate release.

Status of execution: Individual measures: The individual measures in these two cases were closed at the 1128th meeting (November-December 2011).

General measures: The general measures taken until now (translation and dissemination of the judgments to the competent authorities, various awareness raising activities in the context of seminars) were extensively detailed in the previous summaries of the status of execution (see in particular the Order of business of the 1157th meeting and the decision taken by the Committee, 4-6 December 2012). The Committee noted in particular that the ”National Programme for Action to Raise Effectiveness of the Protection of Human Rights and Freedoms“ (signed by the President of Azerbaijan on 27/12/2011) contained provisions aimed at enhancing the effective execution of the European Court’s judgments in general and of the present judgments in particular.

1) Legislative work on defamation

The Committee has closely followed developments at the national level regarding the preparation of a law on defamation. It has regularly insisted on its adoption also in the light of the indication provided in the abovementioned national programme according to which the Presidential Administration was given the task of elaborating “proposals on improving the legislation in order to decriminalise defamation” within 2012 (see the notes in the Order of business of the 1136th meeting (March 2012) and 1144th meeting (June 2012).

At their 1150th meeting (September 2012), the Deputies welcomed the fact that the Azerbaijani authorities had requested the assistance of the Venice Commission with a view to preparing a law on defamation so that its content is in conformity with the Convention’s requirements and, while encouraging them to pursue this work with the Venice Commission speedily and in close co-operation also with the Secretariat, invited the authorities to keep the Committee regularly informed of all the steps of this process, including the precise calendar to be established in that respect.

Since, the authorities presented regular updates to the Committee (DH-DD(2012)1002; DH-DD(2012)1077; DH-DD(2012)1030) concerning their co-operation with the Venice Commission, in particular regarding the meeting between the Secretariat of the Venice Commission and the contact persons for Azerbaijan (Strasbourg, 29 November 2012) as well as the on the roadmap established in that respect.

On 10 and 11 April 2013, a delegation composed of rapporteurs of the Venice Commission, an expert from the Media Division of the Council of Europe, members from the Secretariat of the Venice Commission and of the Department for the Execution of judgments of the Court paid a visit to Baku to discuss the ongoing legislative progress.

On 30 April 2013, a draft bill providing for criminal penalties for “defamation” and “insult' on the Internet, was proposed to Parliament of Azerbaijan by the Prosecutor General. The Secretary of the Venice Commission wrote to the Presidential Administration recalling that the future opinion will also address the issue of decriminalising defamation. The Secretary of the Commission invited the authorities to send to the Commission as soon as possible the draft bill submitted to the Parliament on 30 April 2013, with the view to a comprehensive analysis of all relevant legislative provisions or proposals.

On 14 May 2013, the Parliament of Azerbaijan adopted amendments to the Criminal Code and the Code of Administrative Offences of Azerbaijan that impose penalties for defamation and insult on the Internet. Subsequently, an unofficial translation of the adopted amendments to the Criminal Code (not yet promulgated) were transmitted to the Commission with a view to their examination.

2) measures envisaged to prevent arbitrary application of provisions of the criminal code addressed by the judgments of the Court and in particular examples of Azerbaijani court decisions demonstrating that the Convention standards on freedom of expression are applied: The Committee had instructed the Secretariat to prepare an assessment of the information presented by the authorities on 18/09/2012. The examination of the two decisions provided neither allowed establishing whether the courts apply the national legislation in accordance with the Convention standards as interpreted by the Court, nor to take a position on the arbitrary application (or not) of national legislation. Thus, the Committee, at its 1157th meeting, invited the authorities to provide a wider sample of domestic decisions in this respect. To date no decision has been presented.

3) measures envisaged to prevent violations of Articles 6§1 and 6§2 similar to those found in the case of Fatullayev: during bilateral consultations in Baku (April 2012), the Office of the General Prosecutor indicated that they had studied the judgment of the European Court and issued relevant instructions accordingly. Mention was also made to the National Programme of Action which envisages the organisation of training for law enforcement officers and media representatives in order to ensure the presumption of innocence (time-limit 2012-2013; item 3.8 of the national programme of action).

Updated information is still awaited.

MAHMUDOV AND AGAZADE GROUP CONCERNING FREEDOM OF EXPRESSION

Application

Case

Judgment of

Final on

35877/04

MAHMUDOV AND AGAZADE

18/12/2008

18/03/2009

40984/07

FATULLAYEV

22/04/2010

4/10/2010

1172nd meeting – Notes:

-

Decisions

The Deputies

1. noted with interest that the co-operation with the Venice Commission, within the framework of request for assistance from the authorities of Azerbaijan with a view to preparing a law on defamation, is being pursued;

2. deeply regretted that, while the co-operation process with the Venice Commission was on-going, on 14 May 2013 the Parliament of Azerbaijan adopted amendments to the Criminal Code and the Code of Administrative Offences of Azerbaijan that impose criminal penalties for defamation and insult on the Internet;

3. therefore urged the Azerbaijani authorities to fully co-operate with the Venice Commission with a view to drafting the law on defamation as the adoption of the said law is essential within the framework of the execution of the judgments under consideration;

4. expressed confidence that the co-operation with the Venice Commission will continue and cover all relevant provisions pertaining to defamation in Azerbaijan;

5. urged the authorities to inform them of the measures taken or envisaged so that, pending the adoption of this law, the current legislation is applied in accordance with the Convention’s requirements;

6. reiterated their call upon the authorities to provide, without further delay, a wider sample of domestic decisions demonstrating that national legislation is not arbitrarily applied by Azerbaijani courts and that these courts apply such legislation in accordance with the Convention standards, by specifying the measures laid down for this purpose;

7. urged the authorities to provide as soon as possible information on the measures taken or envisaged in order to prevent violations of Article 6 §§1 and 2 similar to those found in the case Fatullayev, and in particular the way in which the measures envisaged in the National Programme for Action will guarantee the right to the presumption of innocence.

BELGIUM

Application: 50012/08

Judgment final on: 30/04/2012

M.S. v. Belgium

Enhanced procedure: urgent individual measures + complex problem

Reference texts:

Revised action plan (17/05/2013) DH-DD(2013)585 + DH-DD(2013)585add (appendices – confidential)

Action plan (31/10/2012) DH-DD(2012)1080

Communication from the applicant’s representative (15/05/2012) DH-DD(2012)504

Communication from the Belgian authorities (23/05/2012) DH-DD(2012)519

Decision adopted at the 1164th meeting (March 2013)

Case description: The case concerns the applicant’s return to Iraq from Belgium, in October 2010 without his “free consent” as it was undertaken on the basis of coercion by the authorities aimed at dissuading or at least discouraging him from staying in Belgium, even though they knew that the applicant risked being subjected to inhuman or degrading treatment in Iraq (where he was the subject of an arrest warrant on the basis of anti-terrorism laws).They did not take any steps aimed at obtaining diplomatic assurances that he would not be the victim of such treatment on his return (violation of Article 3).

The case also concerns different violations linked to the applicant’s detention in a closed transit centre with a view to his expulsion, although the authorities had concluded that it was not possible to expel the applicant to Iraq having regard to the risk that he might be subject to inhuman or degrading treatment.

The Court underlined in particular that during the impugned periods of detention, the authorities did not undertake any contacts aimed at finding another destination country, and this in a context where the applicant legitimately feared his unlimited detention in Belgium (violation of Article 5§1). Further, there was no speedy decision on the lawfulness of one of the periods of detention (violation of Article 5§4).

Status of execution: Individual measures: it appears from the Court’s judgment and a communication from the applicant’s lawyer to the Committee of Ministers of May 2012 (DH-DD(2012)504) that the applicant was in Iraq and sought the protection of the Belgian authorities. According to the most recent information available in the judgment, dating from 2010, the applicant was the subject of legal proceedings in Iraq based on anti-terrorism laws but was released on bail. The Belgian authorities indicated for the 1144th meeting (June 2012), that steps aimed at executing the judgment were under way (DH-DD(2012)519). The Deputies took note of this information and “invited the Belgian authorities to provide, as a matter of urgency, concrete information on the individual measures taken or envisaged in response to the finding of a violation of Article 3”. During their examination of this case on the basis of the Belgian authorities’ initial action plan (DH-DD(2012)1080), the Deputies took note of the fact that the authorities were seeking elements to make it possible to determine whether the applicant really faced a risk of inhuman or degrading treatment in Iraq with a view to assessing, as appropriate, the advisability of adopting further measures (1157th meeting, December 2012 and 1164th meeting, March 2013). A revised action plan was provided on 17/05/2013 (DH-DD(2013)585), with appendix DH-DD(2013)585add).

General measures:

- concerning the measures regarding the risk of inhuman or degrading treatment and unlawful periods of detention: the revised action plan indicates that the Belgian authorities continue their reflection (notably having regard to the experiences communicated by other European Union member States). The Deputies had invited the authorities to provide details of the time-frame in which they foresee concluding this reflection (1157th and 1164th meeting), but the revised action plan does not contain information in this respect.

- concerning the general measures relating to the delay in the examination of the detention’s lawfulness: the revised action plan provides new information, the evaluation of which is underway.

Application

Case

Judgment of

Final on

50012/08

M.S.

31/01/2012

30/04/2012

1172nd meeting – Notes

Concerning the individual measures, the revised action plan presents an up-to-date picture of the measures taken by the authorities, aimed at determining whether the applicant really faces a risk of inhuman or degrading treatment in Iraq. The efforts made in this respect by the authorities can be underlined and the Deputies might wish to invite the authorities to continue to keep the Committee of Ministers informed of all developments and of the concrete results.

Concerning the general measures, the Deputies might wish to take note of the information provided in the revised action plan. Concerning more particularly the measures relating to the risk of inhuman or degrading treatment and periods of unlawful detention, the Deputies might wish to encourage the authorities to bring their reflection to an end and to present the concrete conclusions that they will reach.

Decisions

The Deputies

1. concerning the individual measures, took note of the information in the revised action plan and noted the efforts made by the Belgian authorities aimed at determining whether the applicant really faces a risk of inhuman or degrading treatment in Iraq;

2. invited the authorities to continue to keep the Committee of Ministers informed of all developments and of the concrete results obtained;

3. concerning the general measures, took note of the information provided in the revised action plan;

4. concerning, in particular, the measures relating to the risk of inhuman or degrading treatment and periods of unlawful detention, encouraged the authorities to bring their reflection to an end and to present to the Committee the concrete conclusions that they will reach.

BOSNIA AND HERZEGOVINA

Application: 27996/06

Judgment final on: 22/12/2009

SEJDIC AND FINCI v. Bosnia and Herzegovina

Enhanced procedure : complex problem

Reference texts:

Interim Resolutions CM/ResDH(2011)291, CM/ResDH(2012)233

Information document CM/Inf/DH(2011)6

Action plan (18/02/2010) DH-DD(2010)108

Updated Action Plan (26/05/2011) DH-DD(2011)403 and (20/01/2012) DH-DD(2012)64

Revised Action Plan (19/10/2011) DH-DD(2011)915

Updated Action Plan (04/09/2012) DH-DD(2012)774

Communication from Human Rights Watch (26/05/2010) DH-DD(2010)307

Communication from Human Rights Watch and reply of the government (16/11/2011) DH-DD(2011)1065

Communication from NGOs (Cardozo School of Law, Human Rights Watch, and Minority Rights Group International on execution of judgement) (05/12/2012) DH-DD(2013)11

Resolution 1855(2012) of the Parliamentary Assembly

Declaration of the Chairman of the Committee of Ministers (25/04/2012)

Joint statement by Commissioner Füle and Secretary General Jagland on Bosnia and Herzegovina DC088(2012) (04/09/2012)

Statement by the Commissioner Füle after consultation with political parties in Bosnia and Herzegovina (11/04/2013)

Decision adopted at the 1169th meeting (30 April 2013)

Decision adopted at the 1170th meeting (7 May 2013)

Case description: Violation of the right to free elections and discrimination against the applicants (citizens of Bosnia and Herzegovina of Roma and Jewish origin) who were ineligible to stand for election to the House of Peoples of Bosnia and Herzegovina due to their lack of affiliation with a constituent people (Bosniacs, Croats or Serbs) (violation of Article 14 taken in conjunction with Article 3 of Protocol No. 1). General discrimination against the applicants due to their ineligibility to stand for election to the Presidency of Bosnia and Herzegovina due to their lack of affiliation with a constituent people (violation of Article 1 of Protocol No. 12).

Status of execution: The Committee of Ministers has always considered that a number of amendments to the Constitution of Bosnia and Herzegovina and its electoral legislation should be adopted for the execution of this judgment. However, the authorities and political leaders of Bosnia and Herzegovina have not been able to reach a consensus on these amendments despite the Committee’s repeated calls to that effect (see, in particular, Interim Resolution CM/ResDH(2011)291 adopted at the 1128th meeting (December 2011) and the last decision adopted at the 1170th meeting (May 2013).

Following the repeated failure of the authorities and political leaders of Bosnia and Herzegovina to reach a consensus on the required constitutional and legislative amendments by the end of March 2013, the Commissioner Füle and the Secretary General Jagland regretted in their joint statement that “narrow party and ethnic interests continue to prevail over genuine engagement to end the constitutional discrimination of many citizens of Bosnia and Herzegovina” and noted that the “time is running out for the Constitution and Election Law to be brought in compliance with the European Convention on Human Rights in view of the 2014 elections”.

In its decision adopted at its 1170th meeting (7 May 2013), the Committee stressed that failure to reach a consensus and to amend the necessary legislation would not only amount to a manifest breach of obligations under the Convention to execute the Court’s judgment in this case but would also seriously undermine the legitimacy and the credibility of the country’s future elected bodies. The Committee therefore strongly urged the authorities and political leaders of Bosnia and Herzegovina to reach a consensus and to amend the Constitution and the electoral legislation and to bring them in conformity with Convention requirements with no further delay.

No information has been submitted as to whether the political stakeholders have reached a consensus at the time of issuing of the present document.

Application

Case

Judgment of

Final on

27996/06

SEJDIĆ AND FINCI

22/12/2009

Grand Chamber

1172nd meeting – Notes

-

Decisions

The Deputies

1. reiterated that Bosnia and Herzegovina is under a legal obligation to amend the Constitution and the electoral legislation to bring them in compliance with the Convention requirements;

2. deeply deplored that since the last examination of this case at the 1170th meeting (7 May 2013), the authorities and political leaders of Bosnia and Herzegovina have failed to reach a consensus and to fulfil such obligation, despite their repeatedly expressed commitment to do so;

3. reiterated that the continuing failure to reach a consensus on the required amendments is a matter of very serious concern;

4. stressed that time is running out for the Constitution and electoral legislation of Bosnia and Herzegovina to be brought in compliance with the Convention in view of the forthcoming 2014 elections and reiterated that failure to do so would not only amount to a manifest breach of obligations under Article 46, paragraph 1, of the Convention but would also seriously undermine the legitimacy and the credibility of the country´s future elected bodies;

5 therefore firmly urged the authorities and political leaders of Bosnia and Herzegovina to amend the Constitution and the electoral legislation to bring them in conformity with the Convention requirements as a matter of urgency;

6. urged the authorities of Bosnia and Herzegovina to inform the Committee without delay of any steps taken in this direction and decided to resume consideration of this issue at their 1179th meeting (September 2013) (DH);

7. decided that a letter would be sent from the Chair of the Committee of Ministers, inviting the responsible Minister of Bosnia and Herzegovina to the 1179th meeting (September 2013) (DH), for an exchange of views on the implementation of the judgment.

BULGARIA

Application: 41035/98

Judgment final on: 18/04/2005

KEHAYOV Group v. Bulgaria

Enhanced procedure:

Complex problem

Reference texts:

Information document CM/Inf/DH(2011)45

Action plan (09/04/2013) DH-DD(2013)417

Information provided on general measures (16/06/2011) DH-DD(2011)918

Decision adopted at the 1144th meeting (June 2012)

Case description: The cases of this group concern inhuman and degrading treatment of the applicants due to poor conditions of detention in investigative detention facilities and in prisons for various periods between 1996 and 2012, owing in particular to overcrowding, poor sanitary and material conditions, no regular access to running water or to a toilet, limited possibilities for out-of-cell activities, no access to natural light, bad quality of the food provided and prolonged application of a special restrictive penitentiary regime combined with the effects of inadequate material conditions in prison.

The cases of Shishmanov and Gavazov concern in addition the inadequacy of the medical care in prison and the case of Işyar concerns the adaptation difficulties of an imprisoned foreigner (violations of Article 3).

Some of the cases also concern the lack of effective remedies in respect of the poor conditions of detention, in particular due to the formalistic approach taken by the domestic courts when deciding on claims for damages under the State and Municipalities Responsibility for Damages Act and the unavailability of a remedy capable of leading to any improvement of the conditions of detention (violations of Article 13 in conjunction with Article 3).

Moreover, the case of Iordan Petrov concerns the interference with the applicant’s right to fair trial due to the use of his confessions for which there were serious reasons to believe that they had been obtained in breach of Article 3 (violation of Article 6 § 1). The case also concerns ill-treatment of the applicant which occurred under the responsibility of law enforcement agents and lack of effective investigations in this respect (several violations of Article 3).

Finally, some of the cases concern also violations of Articles 5, 6 §§ 1 and 3 e), 8 and 13.

Status of execution: On 09/04/2013, the authorities provided an action plan concerning this group:

Individual measures: in the light of the information provided by the authorities so far, no further individual measures appear necessary in the cases of this group except for the cases of Iordan Petrov and Chervenkov. The questions which remain open in these two cases concern the current conditions of detention of the applicant in the case of Chervenkov and the reopening of the impugned criminal proceedings in the case of Iordan Petrov, as well as the possibility for the authorities to carry out an investigation meeting the requirements of the Convention as concerns the ill-treatment of the applicant in this case.

General measures :

1) Conditions of detention and effective remedies in this respect :

The revised action plan describes the measures taken and envisaged for the execution of these judgments concerning poor conditions of detention, in particular:

- Evolution of the State’s criminal and penitentiary policy to deal with overcrowding: some alternatives to imprisonment have been more widely used in recent years, such as more frequent recourse to probation, early release on parole, amnesties and pardon. Moreover, a ministerial order allowing for more adequate distribution of sentenced persons between the penitentiary facilities has been issued. The Enforcement of Sentences Act has been modified in 2012 in order to allow the transfer of prisoners to another penitentiary facility in cases when the capacity of the prison which has to accommodate them has been exceeded.

- Monitoring mechanism: a national prevention mechanism has been set up in accordance with the Optional Protocol to the United Nations Convention against Torture allowing the Ombudsman to visit and inspect detention facilities and give recommendations on the treatment of detained persons. The Ombudsman has published his first annual report which summarises his recommendations concerning the improvement of the conditions of detention in the facilities visited in 2012. The internal monitoring of conditions of detention is performed by the administration of each detention facility and by the General Directorate for Enforcement of Sentences.

- Conditions of detention: some construction and renovation activities have been performed recently concerning prisons and investigation detention facilities. Moreover, the authorities have the intention to implement several other projects of this kind with the assistance of the Norwegian Financial Mechanism (in particular to combat the overcrowding in the prisons of Burgas and Varna). The authorities have indicated that the problem of overcrowding continues to affect the closed-type penitentiary facilities for men and that only in a minority of the facilities all cells have in-cell toilet facilities. In its first report, the Ombudsman stressed that the living conditions remain very unsatisfactory in many detention facilities. Due to budgetary restraints the Programme for improving living conditions in places of detention adopted by the Council of Ministers in 2010 and the action plan for its implementation (2011-2013) cannot be executed within the time-limits initially foreseen. The authorities have not provided a revised time-table for the implementation of the measures planned. It has been indicated that the prison services are searching actively for alternatives to the funding from the budget of the State.

- Medical care: the authorities indicated that, following a modification of Section 128 of the Enforcement of Sentences and Preliminary Detention Act, as of 01/01/2014, all detainees will have medical insurance.

- Domestic compensatory and preventive remedies: a summary of the European Court’s findings concerning the dysfunction of the domestic compensatory remedy has been sent to the Supreme Court of Cassation and the authorities are planning to send such a summary also to the Supreme Administrative Court, currently competent to examine claims for compensation for poor conditions of detention, in view of unifying the courts’ practice in this area. In addition, the authorities have presented information concerning the domestic provisions governing the transfer of prisoners from one penitentiary facility to another and the possibility for a detainee to complain before the director of the detention facility.

2) Other violations established in these judgments: As concerns the violation of the right to a fair trial in the case of Iordan Petrov, the authorities consider that the dissemination of the conclusions of the Court in this judgment is a relevant measure and they indicated that such dissemination will take place in the near future. As concerns the other violations, either the Committee of Ministers is examining the questions in the context of other groups of cases (e.g. Kitov, Yankov, Velikova, Petrov, Peev), or the violations are similar to those found in cases which had already been closed (Assenov, Shishkov, Hovanesian).

Application

Case

Judgment of

Final on

41035/98

KEHAYOV

18/01/2005

18/04/2005

54578/00

ALEXOV

22/05/2008

22/08/2008

45358/04

CHERVENKOV

27/11/2012

27/02/2013

55389/00

DOBREV

10/08/2006

10/11/2006

54659/00

GAVAZOV

06/03/2008

06/06/2008

61507/00

GEORGIEV ANDREI

26/07/2007

26/10/2007

44082/98

I.I.

09/06/2005

09/09/2005

4473/02+

ILIEV AND OTHERS

10/02/2011

10/05/2011

22926/04

IORDAN PETROV

24/01/2012

24/04/2012

41211/98

IOVCHEV

02/02/2006

02/05/2006

391/03

IŞYAR

20/11/2008

20/02/2009

55712/00

KOSTADINOV

07/02/2008

07/05/2008

28674/03

KOSTOV SLAVCHO

27/11/2008

27/02/2009

57830/00

MALECHKOV

28/06/2007

28/09/2007

18382/05

RADKOV No. 2

10/02/2011

10/05/2011

16391/05

SHAHANOV

10/01/2012

10/04/2012

37449/02

SHISHMANOV

08/01/2009

08/04/2009

49438/99

STAYKOV

12/10/2006

12/01/2007

50765/99

TODOROV TODOR

05/04/2007

05/07/2007

56856/00

YORDANOV

10/08/2006

10/11/2006

1172nd meeting – Notes

The measures taken by the authorities in order to combat the problems of overcrowding and poor conditions of detention should be welcomed, in particular the work accomplished by the Ombudsman acting as national prevention mechanism, the adoption of provisions allowing to transfer prisoners in case of overcrowding of one prison facility and the reconstruction project funded with the assistance of the Norwegian Financial Mechanism. The latter projects should allow to improve the conditions of detention in the Burgas and Varna prisons, considered critical by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) during its May 2012 visit.

That being said, it follows from the information provided that in spite of the efforts made by the Bulgarian authorities, the problem of overcrowding persists, in particular in the closed-type prisons for men. It appears also that problems related to poor material conditions of detention remain in the majority of the detention facilities. This situation is partly due to the fact that it had been impossible to implement the national action plans for improvement of the conditions of detention until the end of 2013 due to budgetary restrictions related to the economic crisis.

In view of the above and taking into account the scope of the problems highlighted by this group of cases, the authorities should be strongly encouraged to give the highest priority to seeking solutions which would allow them to implement their national action plans for improvement of the conditions of detention, if necessary by continuing to explore all sorts of possibilities for support and cooperation in this respect, and by taking into consideration the recommendations made by national and international monitoring bodies, including in particular the CPT.

It would also be helpful to know if the Bulgarian authorities have developed an updated overall strategy to address the problem of prison overcrowding (e.g. further reinforcing measures alternative to detention) based on the relevant recommendations of the Committee of Ministers, as well as other competent bodies of the Council of Europe.

The adoption of the above measures should facilitate the setting up of specific preventive remedy meeting the requirements of the Convention, whose efficiency in practice will depend on the possibility to bring about a real improvement of the situation of a detainee who complains about his conditions of detention. In this respect, it is expected that the Bulgarian authorities will draw full benefit of the project 18 of the Human Rights Trust Fund “Implementing pilot, ‘quasi-pilot’ judgments and judgments revealing systemic and structural problems in the field of detention on remand and remedies to challenge detention conditions”.

Decisions

The Deputies

1. welcomed the efforts of Bulgaria to solve the systematic problem of overcrowding, but noted that additional measures are still necessary in order to overcome it, in particular concerning the current situation in the prisons for men;

2. in this context, encouraged the authorities to develop further the use of alternative measures to imprisonment and preliminary detention and to establish an updated global strategy to address prison overcrowding, taking into consideration the relevant recommendations of the Council of Ministers, as well as other competent bodies of the Council of Europe;

3. noted also with satisfaction the efforts made by Bulgaria to improve the material conditions of detention, namely through the reconstruction projects funded with the assistance of the Norwegian Financial Mechanism ; noted, however, that substantial improvements are still necessary in the majority of the penitentiary facilities and that this situation is due partly to the fact that the national action plans in this field could not be implemented due to budgetary restrictions related to the economic crisis;

4. encouraged the authorities to give the highest priority to seeking solutions which would allow them to achieve their goals to improve the conditions of detention, if necessary by continuing to explore all possibilities of support and cooperation at national and European level; invited the authorities to establish a revised national programme concerning the improvement of conditions of detention for the period after 2013;

5. invited the authorities to take due account, in their efforts to improve the conditions of detention, of the relevant recommendations made by monitoring bodies at national and international level, including the CPT and the Ombudsman;

6. noted that the improvement of the conditions of detention and the reduction of the prison overcrowding should facilitate the setting-up, at the domestic level, of a preventive remedy meeting the requirements of the case-law of the Court and invited the Bulgarian authorities to draw full benefit from project 18 of the Human Rights Trust Fund.

GREECE

Application: 35151/05

Judgment final on: 11/01/2008

BEKIR-OUSTA AND OTHERS GROUP v. Greece

Enhanced procedure: complex problem

Reference texts:

Communication from the chairman of the applicant association (case of Tourkiki Enosi Xanthis and others) DH-DD(2012)554

Communication from Greece (26/04/2012) DH-DD(2012)423

Communication from Greece (24/10/2012) DH-DD(2012)1022

Communication from Greece (08/04/2013) DH-DD(2013)452

Communication from the applicants’ representative (20/11/2012) DH-DD(2012)1085

Communication from the applicants' representative (08/01/2013) DH-DD(2013)63

Communication from the applicants' representative (16/04/2013) DH-DD(2013)453

Communication from the applicants' representative (03/06/2013)DH-DD(2013)632

Communication from a NGO (ABTTF) and reply of the government (03/11/2011) DH-DD(2011)1054

Decision adopted at the 1157th meeting (December 2012)

Case description: Violations of the right to freedom of association (Article 11) due to the refusal to register associations (cases Bekir-Ousta and others and Emin and others; domestic decisions of last instance in 2006 and 2005 respectively) and to the dissolution of an association (case Tourkiki Enosi Xanthis and others; domestic decision of last instance in 2005) on the grounds that their aim was to promote the idea that an ethnic minority existed in Greece as opposed to the religious minority recognised by the Lausanne Treaty in 1923.
Concerning the cases Bekir-Ousta and others and Emin and others, the European Court noted that «the contested measure relied on a mere suspicion about the true intentions of the founders of the association and the actions that it might have led to once it had started functioning». Moreover, the Court considered that «even assuming that the true aim of the association was to promote the idea that an ethnic minority existed in Greece, this cannot be in itself considered as a threat to a democratic society». The Court noted in this respect that «nothing in the association’s statute suggested that its members were advocating the use of violence or of anti-democratic or anti-constitutional means». The Court recalled that Greek legislation (Article 12 of the Constitution and Article 81 of the Civil Code) does not set up a system of preventive control for the establishment of non-profit associations. The Court also noted that the Greek courts could order the dissolution of the associations mentioned above, if they subsequently pursued an aim different to the one stated in their statutes, or if their functioning proved to be contrary to public order. Consequently the Court concluded that the impugned measure was disproportionate to the aim pursued.

In the case Tourkiki Enosi Xanthis and others, the European Court underlined the radical nature of the measure at issue, namely the dissolution of the association and noted in particular that prior to its dissolution the relevant association had continued its activities for about half a century without hindrance and without any indication that its members have ever used violence or rejected democratic principles.

Violation of Article 6§1 in the case of Tourkiki Enosi Xanthis and others due to the excessive length of civil proceedings related to the dissolution of the association.

Status of execution: Individual measures:
1)The issue of payment of just satisfaction in the case Tourkiki Enosi Xanthis in respect of non-pecuniary damage suffered as a result of the violation of Article 6§1 was closed at the 1144th meeting (see detailed notes and decision adopted during that meeting).

2) Applications for revocation of the previous decisions refusing the registration of the associations (cases Bekir-Ousta and others and Emin and others) and of the previous decision of dissolution (case Tourkiki Enosi Xanthis and others)
Since the beginning of its supervision of the execution of these cases, the Committee has closely followed developments at the national level on the applicants’ requests for revocation of the previous decisions refusing registration and ordering dissolution, following the European Court’s judgments.

These developments were extensively detailed in previous summaries of the status of execution (see in particular the Order of business of the 1157th meeting and the decision adopted by the Committee, 4-6 December 2012).

The Committee noted that in its judgment No. 353/2012, the Court of Cassation had dismissed the appeal in cassation lodged by the association Tourkiki Enosi Xanthis concluding that, in the context of a non-contentious procedure, such as the one initiated by the applicant association, the revocation or revision of a final domestic judgment is not possible on the basis of a judgment of the European Court as the latter does not constitute ‘’a change of circumstances’’ under Article 758 § 1 of the Code of Civil Procedure.
In this respect, the Committee recalled the commitment reiterated by the Greek authorities to implementing fully and completely the judgments under consideration, which have been under the supervision of the Committee of Ministers since 2008 and without excluding any avenue in that respect.

Since then, the authorities (DH-DD(2013)452) and the applicants’ representative (DH-DD(2013)453) focused on developments relating to the applicants’ appeals in cassation in the cases of Bekir-Ousta and others and Emin and others, against the decisions of the Court of Appeal of Thrace rejecting their request for revocation of the refusal to register their associations. According to this information, the hearing before the Court of Cassation took place on 22 March 2013 and the decisions are expected the following months.

General measures:
1) Violation of Article 6§1 in the case of Tourkiki Enosi Xanthis and Others: The issue of excessive length of civil proceedings is being examined in the context of the pilot judgment Glykantzi/Konti Arvaniti group of cases (53401/99).

2) Violations of Article 11: The three judgments were disseminated and published in Greek, including to the authorities directly concerned. They were accompanied by a letter from the Ministry of Justice to the President of the Court of Cassation highlighting the European Court’s main conclusions and stressing the State’s obligation, in accordance with Article 46 of the Convention, to abide by the Court's judgments (see the notes in the Order of business of the 1157th meeting).

During its recent examinations of this group of cases (1144th and 1157th meetings), the Committee of Ministers noted with interest judgment No. 24/2012 of the Court of Cassation, delivered in another case «South Evros Cultural and Educational Association of Western Thrace Minority» and which was brought to its attention by the Greek authorities. It noted, in particular, that by overturning the decision of the Court of Appeal of Thrace refusing the registration of the applicant association, the Court of Cassation directly applied the European Convention (Article 11), as interpreted in the Court’s case-law. The Committee also noted the Greek authorities’ position that this judgment could have an impact on the registration of associations in the framework of proceedings complying with the requirements of the Convention and in particular of Article 11. According to the Greek authorities, the lower courts are bound to follow this development in the Court of Cassation’s case-law, given the jurisprudential authority of the High Court.

Regarding more precisely the specific procedure for the case «South Evros Cultural and Educational Association of Western Thrace Minority», following judgment No. 24/2012 of the Court of Cassation, a new hearing date of 24 May 2013 has been set before the Thrace Court of Appeal, following the postponement of the initial hearing, scheduled for 7 December 2012.

As regards, in general, the registration of Muslim minority associations in Thrace, according to recent data provided, between March and December 2012, 8 decisions for registration were rendered, of which 7 were by the First Instance Court of Xanthi and 1 was by the First Instance Court of Rodopi. 6 associations were registered and 2 requests were dismissed. In addition, one of the associations whose registration was rejected, submitted a new registration request which was accepted by a decision of the First Instance Court of Xanthi.

Finally, the authorities noted that in the context of their awareness-raising measures and in particular by the Legal Council of the State, the Government Agent gave a presentation entitled «The Right of Association in the Framework of the European Convention on Human Rights – the Greek cases» at a seminar organised by the National School of Judges (Thessaloniki, 29-30/11/2012) on the «Judicial Protection of Human Rights according to the European Convention on Human Rights at national and European level, from the perspective of civil and criminal proceedings», with a majority of judges from the Court of Cassation and several judges from Courts of Appeal (see this intervention in DH-DD(2013)452).

Application

Case

Judgment of

Final on

35151/05

BEKIR-OUSTA AND OTHERS

11/10/2007

11/01/2008

34144/05

EMIN AND OTHERS

27/03/2008

01/12/2008

26698/05

TOURKIKI ENOSI XANTHIS AND OTHERS

27/03/2008

29/09/2008

1172nd meeting – Notes

-

Decisions

The Deputies

1. recalled that this group of cases has been under the Committee of Ministers’ supervision since January 2008 and that the Committee has since then closely followed developments before the domestic courts as well as the Greek authorities’ efforts to inform and raise awareness to ensure that the applicants in these cases benefit from proceedings compatible with the Convention requirements in order to have their requests for revocation of previous decisions refusing registration and ordering dissolution of their associations, examined on the merits;

2. also recalled the commitment reiterated by the Greek authorities to implementing fully and completely the judgments under consideration and without excluding any avenue in that respect;

3. while noting with concern that, since the judgment of the Court of Cassation (No. 353/2012), published on 24 February 2012, dismissing the appeal in cassation of the Tourkiki Enosi Xanthis association on procedural grounds, to date no precise and concrete information has been presented to the Committee on the measures taken or envisaged regarding the individual measures in this group of cases, noted with interest the information provided during the meeting according to which other avenues are being explored, including an amendment to the non-contentious procedure provided in the code of civil procedure;

4. consequently, and in particular given the time that has elapsed since the Court's judgments became final, urged the authorities to inform the Committee in writing, with an indicative timetable on measures that they are currently exploring so that the associations’ requests for registration could now be subject to an examination on the merits;

5. decided to resume consideration of this question at their 1186th meeting (December 2013) (DH) in order to make a substantive assessment of the developments regarding individual measures, based on the information that the authorities will provide in good time for that meeting.

GREECE

Application: 54447/10, 71563/01

Judgment final on: 03/07/2012, 19/08/2005

MICHELIOUDAKIS v. Greece

DIAMANTIDES No. 2 GROUP v. Greece

Enhanced procedure: pilot judgment, complex structural problem

Reference texts:

Final Resolution ResDH(2005)66 concerning cases relating to excessive length of criminal proceedings in Greece (case of Tarighi Wageh Dashti against Greece and 7 others)

Interim Resolution CM/ResDH(2007)74 on excessively lengthy proceedings in Greek administrative courts and the lack of an effective domestic remedy

Action plan (01/02/2013) DH-DD(2013)96

Communication from Greece (17/12/2012) DH-DD(2012)1186

Communication from Greece (08/04/2013) DH-DD(2013)390

Decision adopted at the 1164th meeting (March 2013)

Case description: Pilot judgment concerning the violation of the right to a fair trial on account of excessive length of criminal proceedings and the absence of an effective remedy in this respect (violations of Articles 6§1 and 13). The European Court noted that in the period subsequent to the adoption by the Committee of Ministers of Interim Resolution CM/ResDH(2007)74, which primarily concerned the excessive length of proceedings before administrative courts, it had delivered over 40 judgments (see Diamantides No. 2 group of cases) finding violations of Article 6§1 in respect of length of proceedings before criminal courts (notably on account of particularly lengthy proceedings before first instance courts and of fixing very late hearing dates in appeal proceedings, with respect to the lodging date).

The Court highlighted that the structural nature of the problem identified was confirmed by the fact that over 250 cases against Greece, completely or partially relating to length of court proceedings, were currently pending before it and that over 50 of those cases concerned exclusively proceedings before criminal courts. The Court therefore concluded that Greece must, within one year from the date on which the present judgment became final (namely by 03/07/2013), put in place an effective domestic remedy, or a set of remedies, capable of affording adequate and sufficient redress in those cases in which a reasonable time limit was exceeded in proceedings in criminal courts, and to do so in accordance with the principles of the Convention as established in the case-law of the Court. Pending the adoption of the said remedy, the Court will adjourn the proceedings in all the similar applications pending before it, subject to the Court having the faculty, at any time, to declare inadmissible a case of this type or to strike it out of the list of cases following a friendly settlement between the parties or a settlement of the dispute by other means, in pursuance of Articles 37 and 39 of the Convention.

Status of execution: Action plan received on 1st February 2013 (see below in Notes).

Application

Case

Judgment of

Final on

54447/10

MICHELIOUDAKIS

03/04/2012

03/07/2012

71563/01

DIAMANTIDES No. 2 (list of cases)

19/05/2005

19/08/2005

1172nd meeting - Notes:

Individual measures

The domestic proceedings in the Michelioudakis case were completed on 5 March 2010. The proceedings in the majority of the cases still pending in the Diamantides No. 2 group (74 out of 76) have been terminated (see table appended to the action plan). The Greek authorities indicated that they shall keep the Committee updated on the acceleration of proceedings in the remaining 2 individual cases (Gemitis and Stefanakos cases).

Assessment: The information regarding the termination of proceedings in the majority of cases (74 out of 76) in the Diamantides No. 2 group is welcome. Information is expected on the measures taken/envisaged in order to accelerate the proceedings in the remaining 2 cases.

General measures

I. Developments regarding the adoption of an effective remedy within the deadline set by the Court

The Ministry of Justice is preparing a draft law in order to conform both with the Michelioudakis and the Glykantzi3 pilot judgments. According to the action plan transmitted by the Greek authorities, an effective domestic remedy concerning at least the length of criminal proceedings is expected to be introduced by 03/07/2013 (time-limit set by the Court in the present pilot judgment).

Assessment: The information contained in the action plan confirming the intention of the Greek authorities to introduce an effective remedy on length of criminal and possibly civil proceedings, within the deadline set by the Court in the Michelioudakis judgment (i.e. by 3 July 2013) has been noted. However, no information was received as of 09/04/2013 as to the concrete steps taken in view of the preparation of the draft law and its submission to the Parliament in time for its enactment within the above mentioned time-limit, as to the calendar envisaged for its entry into force and implementation and as to the content of the draft law, in particular as regards the scope of the remedy envisaged.

II. Measures taken with a view to shortening length of proceedings and improving the efficiency of functioning of courts:

Law No. 4055/2012 («fair trial and reasonable length [of proceedings]»; entry into force on 02/04/2012) introduced a number of measures with a view to simplifying and streamlining the handling of cases. The measures aim in particular at:

(a) avoiding abusive complaints (introduction of court fees; obligation to submit all relevant evidence to the court’s secretary when lodging the complaint)
(b) accelerating the introduction of criminal complaints and preliminary investigations (anonymous complaints are inadmissible; preliminary investigation is mandatory for crimes and optional for offences; the police officer in charge of the relevant investigation is in charge of the collection of all relevant testimonies in a very short period);
(c) simplifying criminal proceedings (e.g. stricter conditions for granting adjournment of hearings are introduced).

A number of additional measures have already been adopted/are underway, aiming at the rapid treatment of criminal cases. These include:

-the establishment of single-judge criminal courts, competent for deciding on specific crimes;
-the discontinuance of criminal proceedings for offences committed before 31/12/2011 which carry a maximum sentence of imprisonment of 1 year and/or a fine.
-the reduction of the salary of judges if they unjustifiably delay the examination of criminal cases, as well as limitation of their judicial vacations;
-the construction of new court premises (already functioning in Corfu and Veria; under construction in Chios, Patras, Heraklion; additional courtrooms in Athens);
-the introduction of computerised judicial management system, in the context of which the implementation of an important project «Comprehensive System for Processing Judicial Affairs of Civil and Criminal jurisdiction» is envisaged: measures such as the electronic submission of remedies, electronic registration of minutes, electronic Criminal Records File shall be introduced and shall be gradually operational throughout the country.

According to the president and the prosecutor of the Court of Cassation positive results have been achieved in the reduction of length of proceedings by the measures introduced by law No. 4055/2012 as well as by the former law No. 3904/2010 referred to in the pilot judgment.

Assessment: the information provided by the Greek authorities on the measures already taken and envisaged with a view to simplifying and streamlining the handling of criminal cases is encouraging. This package of measures goes in the right direction in order to address the root causes of the excessive length of criminal procedures and to improve the functioning of the judiciary. In light also of the Court’s findings (e.g. § 67), it would however be important that the Greek authorities present to the Committee, in view of a future examination by the latter, their assessment regarding the concrete impact of the measure already taken as well as any further development.

Decisions

The Deputies

1. recalled that in the pilot judgment in the case of Michelioudakis, the European Court found a structural problem concerning excessive length of criminal proceedings and invited Greece, within one year from the date on which this judgment became final (i.e. by 03/07/2013), to introduce an effective domestic remedy, or a set of remedies, capable of affording adequate and sufficient redress in the event of the exceeding of the reasonable time requirement, in accordance with the principles of the Convention as established in the case-law of the Court;

2. while regretting not having had information in good time for the meeting on the preparation of the draft law with a view to its adoption within the deadline set by the Court, noted that the Greek authorities have asked the Court for an extension of the said deadline until 30 January 2014 with a view to introducing an effective remedy or a combination of remedies covering both the excessive length of criminal and civil proceedings so as to comply with the two pilot judgments Michelioudakis and Glykantzi;

3. without prejudging the Court’s response, urged the Greek authorities to actively pursue their efforts with a view to introducing an effective remedy concerning the excessive length of criminal proceedings;

4. urged further the Greek authorities to present to the Committee without delay information on:

- the concrete steps taken in view of the preparation of the draft law for its adoption;

- the calendar envisaged for its entry into force and its implementation;

- the content of the draft law, in particular the scope of the remedy envisaged;

5. while noting with interest the other measures taken and envisaged aimed at reducing the length of criminal proceedings and improving the functioning of the courts, invited the authorities to present to the Committee their assessment on the concrete impact of the measures already adopted and any other relevant developments;

6. noting with satisfaction that the domestic proceedings in the majority of the cases (74 out of 76) in the Diamantides No. 2 group have been completed, invited the authorities to expedite the pending proceedings in the remaining two cases of the group;

7. decided to resume consideration of these issues at their 1179th meeting (September 2013) (DH).

GREECE

Application: 34704/08

Judgment final on: 20/06/2011

NISIOTIS GROUP v. Greece

Enhanced procedure: Structural / complex problem

Reference texts:

Updated action plan (04/04/2013) DH-DD(2013)407

Action plan (03/01/2012) DH-DD(2012)187

The Greek Ombudsman Annual Report 2009

CPT public statement concerning Greece (15/03/2011) CPT/Inf(2011)10

CPT report on the visit to Greece carried out from 19 to 27 January 2011 CPT/Inf(2012)1 and Government’s response (CPT/Inf (2012)2)

Communications from the applicants' representative (28/01/13 and 30/07/12) DH-DD(2013)408

Case description: All cases relate to inhuman and/or degrading treatment on account of the applicants' poor conditions of detention in the Ioannina prison (in different periods from 2005 to 2010), especially due to serious overpopulation (violation of Art. 3). The European Court noted that the conditions of detention were manifestly below the norms provided by international texts in this field and in particular the requirements of Article 3 of the Convention (§ 28 of the Taggatidis judgment).

The Court took into consideration CPT and Council of Europe recommendations, as well as the Greek Ombudsman’s report of 2009 where it was noted that the dormitories and cells in the said prison were “absolutely insufficient” for the number of detainees and that the ratio of space to detainees was “absolutely intolerable”, as well as of a letter sent by the Ioannina prison doctor to the prison governor in 2008 informing him of the increased risk that the detainees ran for diseases and psychiatric disorders on account of the overcrowding and the lack of physical exercise. In its findings under Article 46, the Court held that a “drastic and rapid intervention by the authorities is required in order to take the appropriate measures that shall render the conditions of detention in this prison in conformity with the requirements of Article 3 of the Convention and that shall avoid future violations such as the one found in the present cases” (Tzamalis § 51; Samaras § 73).

In a more recent judgment (Nieciecki case) the Court found a violation of Article 3 on account of serious overpopulation while in pre-trial detention in the Korydallos prison (in 2010).

Status of execution: Individual measures: In their letters of 16/11/2011, 21/5/2012 and 4/3/2013 the authorities indicated that all applicants have either been released, granted stay of execution or transferred to other prisons. In their updated action plan of 4/4/2013 the authorities noted that the applicant in the Nieciecki case had been transferred to another prison (in Patras) on 11.2.2013.

The Court awarded just satisfaction in respect of non-pecuniary damage. In his letters of 27/6/2012 and 28/1/2013, the applicants' representative (cases Samaras and Taggatidis) complained about the conditions of payment of just satisfaction to a number of applicants (attachment of sums awarded due to debts to the state, difficulties in payment due to lack of financial data etc.). Consultations between the authorities and the Secretariat are currently under way on this issue.

General measures: In the action plan transmitted on 3/1/2012 and its update (4/4/29013), the Greek authorities presented the following general measures:

I. Measures aimed at improving conditions of detention in the Ioannina prison

With the view to improving conditions of detention the following actions have been taken:

- following specific legislative amendments (see below under II), a number of detainees have already been released;

- detainees had been transferred to other establishments (44 transfers were carried out within the first months of 2013);

- significant efforts took place regarding infrastructure (e.g. maintenance and restoration work; renovation of the prison health centre; tables and chairs in cells; recreation facilities).

II. Measures aimed at improving conditions of detention in prisons in general

In addition to the extension of existing prison establishments (e.g. recently in Nigrita, Nothern Greece, additional 357 places) and despite the financial situation, two additional prisons have recently been built (at Chania with a capacity of 600 detainees and Drama with the same capacity).

Law No. 3904/2010 (Rationalisation and improvement of the administration of criminal justice and other provisions) introduced the following general measures:

(a) limitation of use of remand custody to serious offences;

(b) important reforms on the system of granting stay of execution;

(c) commutation of up to 3 years’ imprisonment to fine, possibility to commute imprisonment to community service;

(d) introduction of possibility of early release of prisoners (partial service of sentence);

(e) beneficial calculation of the term of execution of the sentence for vulnerable groups of detainees

The authorities noted that in application of Law No. 3904/2010, 762 detainees were released throughout the country, 45 of which were detained in Ioannina prison.

In 2012 was introduced the possibility of detention in special facilities (mainly agricultural detention facilities) providing detainees with the ability to work in open air and with a more beneficial calculation in respect of the duration of the time of the sentence; this possibility is now available also to persons serving sentences for drug offences. In addition, the later can further benefit from the possibility to have their sentence reduced in accordance with other legislative provisions: 73 detained for drug offences in the Ioannina prison were accordingly released.

A draft law on electronic surveillance of detainees on conditional release is in the process of adoption (public consultation on the draft completed on 11/03/2013).

Application

Case

Judgment of

Final on

34704/08

NISIOTIS

10/02/2011

20/06/2011

11463/09

SAMARAS AND OTHERS

28/02/2012

28/05/2012

2889/09

TAGGATIDIS AND OTHERS

11/10/2011

08/03/2012

11677/11

NIECIECKI

04/12/2012

04/03/2013

15894/09

TZAMALIS AND OTHERS

04/12/2012

04/03/2013

1172nd meeting - Notes:

As regards individual measures, it appears from the most recent information received and in the absence of any complaints regarding their current conditions of detention from the applicants transferred to other prison establishments that the only outstanding issues relate to the just satisfaction awarded by the Court.

As regards general measures, the information presented by the Greek authorities should be examined in view of:

a) the European Court’s conclusions according to which a situation of overcrowding exists in many prisons in Greece and appears to be a structural phenomenon (Nisiotis case, §§ 42 and 29);

b) the fact that the Court considered that a drastic and rapid intervention by the authorities is required, in order to ensure that conditions of detention in the Ioannina prison are brought in conformity with the requirements of Article 3 and prevent repetitive violations for the future (Samaras judgment, § 73; Tzamalis judgment §51). In this context it could be noted that 16 similar applications related to conditions of detention in different other prison establishments in Greece have been communicated by the European Court;

c) the findings and recommendations made by the CPT during its various visits to Greece (e.g. report on its 2011 visit to Greece, doc. CPT/Inf2012(1); Public statement §§ 9-11) and the 2009 report from the Greek Ombudsman.

I) Concerning the measures aimed at improving the conditions of detention in the Ioannina prison, the Committee could take note with interest of the efforts made so far by the authorities and encourage them, in the light of the Court’s findings and indications in the Samaras and Tzamalis cases, to ensure that conditions of detention in this prison establishment are brought as soon as possible in full conformity with the requirements of Article 3. It would also be useful if the authorities could provide precise information on the concrete impact of the measures already taken as regards the number of prisoners currently held in the Ioannina prison compared to the establishment’s capacity and the living space available per prisoner in cell with an indication of the time spent daily outside the cell.

II) Concerning measures aimed at improving conditions of detention in general, the measures set out in the action plan and its update seem to go in the right direction to address the problem of prison overcrowding. In this respect, the current work in relation to a draft law on the introduction of electronic surveillance should also be noted. It would however be useful to have more precise information on the concrete impact of the legislative and regulatory measures adopted since 2010 and aimed at reducing the prison population. In particular, statistical data on the evolution of the prison population in Greece, since the adoption of these measures, would be welcome as they would enable the Committee to gain a full picture of their impact.

Although investing in the building extension of detention establishments may be required to increase the prison capacity and to ensure detention conditions fully compliant with the requirements of the judgments here at stake and to prevent repetitive applications before the Court, it seems that solving the problem of overcrowding will be key to any other viable measure to improve the general conditions of detention in Greek prisons. This appears all the more true considering the current economic challenges faced by Greece. To this effect, it would be helpful to know if the Greek authorities have devised an overall strategy to address the chronic problem of prison overcrowding (e.g. further reinforcing measures alternative to detention) based on the relevant Committee of Ministers’ Recommendations in this field as well as other recommendations and advice of the Council of Europe’s pertinent expert bodies.

Decisions

The Deputies

1. recalled that the Court found that “the drastic and rapid intervention of the authorities is required to take appropriate measures in order to bring the conditions of detention [at Ioannina prison] in line with the requirements of Article 3 and thus avoid further violations such as the ones found in this case”;

2. also noted that, in the Nisiotis case, the Court observed that prison overcrowding not only gave rise to other problems concerning conditions of detention, but also appeared to be a structural problem, a situation not specific to Ioannina prison, but present in a large number of Greek prisons;

3. in view of the above, took note with interest of the efforts made to date by the Greek authorities to reduce overcrowding at Ioannina prison and improve conditions of detention in that establishment;

4. urged the authorities to continue their efforts to ensure that, as soon as possible, conditions in that prison fully meet the requirements of Article 3 of the Convention, as specified in the case-law of the Court, and invited them to provide the Committee of Ministers with precise information about the practical impact of the measures taken, in respect of the number of prisoners currently held in the prison as compared to its official capacity, the living space available per prisoner in cell and the amount of time that they spend outside their cells;

5. noted with interest the measures taken or envisaged by the Greek authorities to improve conditions of detention in general, which seem to be moving in the right direction to find a solution to the chronic problem of overcrowding;

6. stressing in this respect that the solving of this problem is vital to the improvement of conditions of detention, urged the Greek authorities to continue their efforts to draw up a comprehensive strategy against overcrowding based on the relevant recommendations of the Committee of Ministers and on the advice of the Council of Europe’s specialised bodies, and invited them to inform the Committee thereof.

HUNGARY

Application: 57693/10

Judgment final on: 24/07/2012

KALUCZA v. Hungary

Enhanced procedure: Urgent individual measures

Reference texts:

Revised action plan (03/05/2013) DH-DD(2013)292rev

Case description: This case concerns the violation of the applicant’s right to private life (Article 8) on account of the authorities’ failure, since 2005, to fulfil their positive obligation to protect her from her violent former common-law partner with whom she shared an apartment. The question whether her former partner is the joint owner of that apartment is subject of civil proceedings, which were still pending when the Court delivered its judgment. The applicant also brought criminal proceedings against her former partner (and vice versa). Her two requests for protection, by restraining orders, against the violent conduct of her former partner were rejected by the domestic courts on the ground that both parties were involved in the assaults.

The Court found that the proceedings concerning the applicant’s requests for restraining orders under the Code of Criminal Procedure were unreasonably long and that the decisions given lacked sufficient reasoning. It held that it was not acceptable that restraining orders could not be issued in cases of mutual assaults. In addition, the applicant could not benefit from the protection accorded by the “Act on Restraining Orders due to Violence among Relatives” because common-law partners are excluded from the scope of that legislation. Lastly, the Court considered that the domestic courts failed to comply with their positive obligation to decide the above-mentioned civil proceedings within reasonable time. According to the Court, the root cause of the problem (i.e. the unwanted residence of the applicant’s former partner in the flat) could be eradicated in these proceedings.

Status of execution: The Hungarian authorities provided an action plan on 18/12/2012 (see DH-DD(2013)292) and a revised action plan on 03/05/2013 (see DH-DD(2013)292rev).

Individual measures: The just satisfaction awarded by the Court in respect of non-pecuniary damage was paid within the deadline.

The Hungarian authorities submitted that the applicant has neither reported further assaults nor made any further requests for restraining orders since the lodging of her application with the Court in September 2010. They considered that, in light of the particular circumstances of this case, the lack of criminal complaints by the applicant against her former partner was not due to the applicant deeming such complaints to be futile. They stressed that in the absence of any complaints by the applicant, they had no means at their disposal to actively clarify whether there is still a danger to her physical integrity. However, the authorities assured that they will take all necessary measures to adequately protect her, in case further assaults are reported.

The ownership dispute between the applicant and her former partner was given priority which means that hearings are held at shorter intervals. Hearings were held on 29/10/2012, 14/01/2013, 04/03/2013 and 29/04/2013. The case is expected to be concluded at first instance after the submission of an expert opinion.

General measures: The Court’s judgment was published and disseminated to all relevant authorities. The Hungarian authorities consider these measures adequate to ensure that future judicial decisions on the dismissal of requests for restraining orders are sufficiently reasoned.

In September 2012, a working group was established to elaborate a special criminal law provision on domestic violence with the participation of the relevant public and civil society stakeholders. Furthermore, the drafting of a new Code of Criminal Procedure is underway. The feasibility of setting deadlines for delivering restraining orders by the trial courts in criminal proceedings will be considered within this context.

In 2012 new practical training methods on the handling of domestic violence cases were introduced in the training of police officers.

Application

Case

Judgment of

Final on

57693/10

KALUCZA

24/04/2012

24/07/2012

1172nd meeting – Notes

Individual measures:

The Secretariat has sought clarifications from the Hungarian authorities during bilateral consultations held on 11-12/10/2012 and by correspondence of 30/10/2012 and 08/03/2013 as to whether the threat posed by the applicant’s former partner has in fact ceased to exist. The Hungarian authorities provided an initial action plan on 18/12/2012 and a revised action plan on 03/05/2013. They considered in particular that, in the absence of any complaints by the applicant (since September 2010), they had no means at their disposal to actively clarify whether there was still a danger to her physical integrity. However, the authorities gave assurances that they would take all necessary measures to adequately protect her in case further assaults are reported.

It is recalled that the Court found in this case that the root cause of the problem (i.e. the unwanted residence of the applicant’s former partner in the flat) could be eradicated if the civil proceedings concerning the ownership of the apartment were terminated. It follows from the information provided by the Hungarian authorities that these proceedings are still pending at domestic level. These proceedings should therefore be terminated without further delay. The Hungarian authorities are expected to keep the Committee updated in this respect.

General measures:

The measures taken by the Hungarian authorities (i.e. the training measures, the establishment of a working group and the consideration of introducing deadlines for decisions on requests for restraining orders in the new Code of Criminal Procedure) are welcomed. As far as the two latter measures are concerned, it would be useful if the Hungarian authorities could provide further concrete information on the content of the legislative measures that are being – or will be – prepared.

As regards the problems at the origin of the violation found by the Court concerning the practice of issuing restraining orders, further information appears necessary on the following aspects:

    1) Excessive length of proceedings on the issuing of restraining orders: the Hungarian authorities are expected to continue their efforts to find solutions capable of ensuring that proceedings on restraining orders are shortened (as, for example, consideration of introducing deadlines for decisions on requests for restraining orders in the new Code of Criminal Procedure – see above);
    2) Lack of sufficient reasons given in the dismissals of requests for restraining orders: the Hungarian authorities consider that the publication and dissemination of the judgment will ensure that domestic courts give sufficient and clear reasons in issuing restraining orders; it would be useful if the authorities could provide information demonstrating that these measures have adequately remedied the violation found;
    3) Legislation on restraining orders: information is awaited as to whether it is intended to extend the protection accorded by the “Act on Restraining Orders due to Violence among Relatives” to common-law partners.

Decisions

The Deputies

1. took note of the Hungarian authorities’ submission that the applicant has not made any requests for protection since September 2010, and of the authorities’ assurance to take all necessary measures to adequately protect her should further assaults be reported;

2. invited the Hungarian authorities to take all possible measures to further accelerate the pending civil proceedings concerning ownership of the applicant’s apartment with a view to their rapid termination and to keep the Committee informed on the progress made;

3. welcomed, as regards general measures, the introduction of new practical methods on the handling of domestic violence cases in the training of police officers;

4. encouraged the Hungarian authorities to continue their work as regards the introduction of a criminal law provision on domestic violence and invited them to provide concrete information on the content of the legislation under preparation;

5. encouraged further the Hungarian authorities to continue their efforts to find solutions capable of ensuring that proceedings on restraining orders are shortened and invited them to keep the Committee informed on the progress made;

6. invited the Hungarian authorities to provide information demonstrating that the measures taken will ensure that dismissals of requests for restraining orders are sufficiently reasoned;

7. encouraged the Hungarian authorities to take the necessary measures to ensure that common-law partners enjoy the protection accorded by the “Act on Restraining Order due to Violence among Relatives”.

HUNGARY

Application: 19400/11

Judgment final on: 29/04/2013

R.R. AND OTHERS v. Hungary

Enhanced procedure: Urgent individual measures

Reference texts:

Case description: This case concerns the authorities’ failure to protect the right to life of four of the five applicants on account of the fact that they were excluded from the witness protection programme without the authorities satisfying themselves that the risk for the applicants’ lives had ceased to exist and without taking the necessary measures to protect them (violation of Article 2). The authorities’ actions thus may have potentially exposed them to life-threatening vengeance from criminal circles.

The first applicant was active in drug-trafficking and, after being apprehended in June 2007 by the police in Hungary, entered into a plea bargain with the authorities. The first applicant and his common-law wife and their three minor children (second, third, fourth and fifth applicants), were enrolled in the witness protection programme in August 2007. In February 2009 the first applicant was convicted and sentenced to nine years imprisonment. On 12 April 2012 the entire family was excluded from the witness protection programme because of the first applicant alone having breached its terms (by using unauthorised communication devices and carrying out illicit communications in prison). As a consequence his families’ cover identities were withdrawn and their security protection was reduced to the provision of an emergency phone number and occasional visits by police officers.

Under Article 46, the Court indicated individual measures for the execution of this judgment: It held that “in order to redress the effects of the breach of the rights of the second, third, fourth and fifth applicants, the authorities should secure measures of adequate protection for these applicants, including proper cover identities if necessary, equivalent to those provided in section 16 of the Protection Act 2001 (…) until such time as the threat can be proven to have ceased” (see § 40 of the judgment).

Status of execution: As the judgment became final on 29 April 2013, an action plan is currently awaited and the Committee of Ministers will be examining this case for the first time at its 1172nd meeting (June 2013) (DH).

Individual measures: As the Court indicated under Article 46 that the Hungarian authorities should take specific individual measures to ensure that the first applicant’s common-law wife and their three children benefit from adequate protection, information is urgently awaited on the measures taken in this respect.

General measures: Information is awaited on the general measures envisaged by the Hungarian authorities, in particular whether future agreements on enrolment in the witness protection programme will contain similar clauses on the exclusion of the whole family in case of its breach by the witness.

Application

Case

Judgment of

Final on

19400/11

R.R. AND OTHERS

04/12/2012

29/04/2013

1172nd meeting – Notes

Urgent individual measures:

As regards the urgency, it is pointed out that the Court accepted that there was indeed a “serious threat to the applicants’ lives” when they were enrolled in the witness protection programme. Referring to CM Recommendation Rec(2005)9 on the protection of witnesses and collaborators of justice, the Court considered that the domestic authorities’ actions may have potentially exposed the first applicant’s common-law wife and their three children to life-threatening vengeance from criminal circles. It found that the Government had not shown that these risks had ceased to exist when they were excluded from the programme.

The Court also rejected the Government’s assertion that the security previously guaranteed by the witness protection programme had been substituted for in a satisfactory manner, in particular in view of the fact that the applicants’ cover identities were withdrawn, that the children started to go to school under their real names, and indicated that it was not unreasonable to suppose that their identities and whereabouts had become accessible to any person with the intention of harming them (see §§ 30-32 of the judgment).

When the judgment became final on 29 April 2013, the Secretariat contacted the Hungarian authorities on 2 May 2013 to inquire about the applicants’ situation and the measures taken. On 16 May 2013, the authorities informed the Secretariat that “personal protection” is being provided for the applicants according to section 12(2) a) and c) of Government Decree No. 34/1999 (II.26.), that is “regular patrolling” and “constant information exchange” by the penitentiary institution and the police department having jurisdiction over the place of the family’s residence, respectively. The necessity of maintaining or terminating these personal protection measures is reviewed every six months by the Emergency Police National Investigation Bureau.

In this context, it should be noted that the measures indicated by the authorities do not appear to be adequate. They do not go far beyond the measures (likewise under Government Decree No. 34/1999 (II.26.)) put in place after the applicants’ exclusion from the programme and which the Court considered to be unsatisfactory, namely the “availability of an emergency phone number” and “occasional visits by police officers” (see §§ 18-19 and § 32 of the judgment).

The Court indicated under Article 46 that the authorities should secure measures of adequate protection “equivalent to those provided in section 16 of the Protection Act 2001”. This provision allows for the following measures to be applied: a) placement in a safe place, b) personal protection, c) blocking of data stored in official registers, d) change of name, e) change of identity, f) participation in international cooperation. Moreover, the Court indicated that “proper cover identities if necessary” should be provided.

The Hungarian authorities have neither given any explanation why cover identities are not necessary, nor does it appear that the measures taken can be considered “equivalent” to those provided in section 16 of the Protection Act 2001. Against this background, it appears questionable whether the measures taken by the Hungarian authorities are “measures of adequate protection” in the sense of the Court’s indication under Article 46.

Lastly, it is worth underlining that urgent individual measures are only required for the common-law wife and the three minor children, as the application of the first applicant was declared inadmissible as being manifestly ill-founded (see § 25 of the judgment).

Decisions

The Deputies

1. noted that the Court indicated individual measures under Article 46 for the execution of this judgment, namely that the authorities should secure measures of adequate protection for the first applicant’s common-law wife and their three minor children, “including proper cover identities if necessary, equivalent to those provided in section 16 of the Protection Act 2001 until such time as the threat can be proven to have ceased”;

2. noted the information provided in this respect by the Hungarian authorities during the meeting;

3. recalling that the first applicant’s common-law wife and children might still be exposed to life-threatening circumstances, urged the Hungarian authorities to ensure without delay an up-to-date assessment of the risks faced by these persons and that measures of adequate protection in the sense of the Court’s indications under Article 46 are in place;

4. decided to resume consideration of the issue of the individual measures at their 1179th meeting (September 2013) (DH).

IRELAND

Application 25579/05

Judgment final on: 16/12/2010

A. B. and C. v. Ireland

Enhanced procedure : complex problem

Reference texts:

Action plan (08/05/2013) DH-DD(2013)535

Updated Action plan (08/02/2013) DH-DD(2013)129

Communication from a NGO (National Women's Council of Ireland) (03/08/2012) DH-DD(2012)738

Communication from a NGO (Irish Family Planning Association (IFPA)) (10/08/2012) DH-DD(2012)753

Communication from a NGO (Irish Council for civil liberties) (19/09/2012) DH-DD(2012)882

Communication from a NGO (European Centre for Law and Justice) (18/09/2012) DH-DD(2012)917

Communication from a NGO (Amnesty International) (18/02/2013) DH-DD(2013)197

Communication from a NGO (Irish Family Planning Association - IFPA) (26/02/2013) DH-DD(2013)236

Communication from a NGO (Irish Family Planning Association (IFPA)) (28/05/13) DH-DD(2013)638

Decision adopted at the 1164th meeting (March 2013)

Case description: The European Court considered that the third applicant, who had a rare form of cancer, could not establish - due to a lacuna in the legal framework - whether she met the criteria to access an abortion, which is lawful in Ireland when there is a real and serious risk to the life of the mother (violation of Article 8).

Status of execution: Individual measures: The European Court awarded the third applicant just satisfaction in respect of non-pecuniary damage. Given the circumstances of the case and the just satisfaction awarded by the Court, no other individual measure appears necessary.

General measures: At its last examination of the case, the Committee noted with satisfaction that the authorities had decided to implement the judgment by way of legislation and regulations and invited them to keep it informed of developments, including on the content of the legislation and on the timetable for its adoption.

The authorities submitted an updated action plan on 8 May 2013 which indicates that on 30 April 2013, they approved the drafting of the Protection of Life During Pregnancy Bill and published a document, the General Scheme of the Bill (enclosed with the updated Action plan) which outlines the main provisions that will be included in the legislation and accompanying regulations (see DH-DD(2013)535).

The Joint Oireachtas Committee on Health and Children held public, parliamentary hearings from 17-21 May on the General Scheme of the Bill, including contributions from medical and legal experts. The Committee intends to report on those hearings to the Minister for Health by the end of May. The legislation and regulations will be published after that and the legislation will be enacted by the end of July, having due regard to the prerogatives of Parliament. The regulations will come into force shortly after. The main principles of the new regime on access to lawful abortion will be in the legislation. The regulations will prescribe the form and manner in which these principles are to be applied by doctors and other professionals. Professional guidance will also be developed by the relevant bodies to assist their members in applying the new regime (particularly the Institute of Obstetrics and Gynaecology, the Royal College of Physicians and the Irish College of General Practitioners).

The next update to the Action plan will be submitted on 31 July 2013.

Application

Case

Judgment of

Final on

25579/05

A. B. AND C.

16/12/2010

Grand Chamber

1172nd meeting - Notes

Article 40.3.3. of the Irish Constitution, as interpreted by the Irish Supreme Court, provides that abortion is lawful if it is established that there is a real and substantial risk to the life of the mother, including a risk of self-harm. It is in this context that the European Court criticised the “absence of any implementing legislative or regulatory regime providing an accessible and effective procedure by which the third applicant could have established whether she qualified for a lawful abortion in Ireland in accordance with Article 40.3.3 of the Constitution” (§267).

The General Scheme of a Bill adopted by the authorities outlines the main provisions to be included in the legislation and regulations that will form the regime, identified by the European Court as needed in order for a woman to establish that she qualifies for a lawful abortion. It is therefore an important step in the execution of the judgment.

Under the regime, medical practitioners will certify that there is a risk to a woman’s life and that she qualifies for a lawful abortion. Certification will be required by two doctors except in emergency situations, when certification from only one doctor will be needed. In situations where there is a risk to the woman’s life due to suicidal intent, certification will be needed from three doctors (one obstetrician and two psychiatrists). The regime will also include a review mechanism to resolve any difference of opinion between a woman and her doctors. As stated in the explanatory notes to the General Scheme of the Bill, the review mechanism is intended to include all the procedural safeguards as set out in Tysiac v. Poland (§§ 116-117).

In its judgment A, B and C, the European Court also commented on the general prohibition on abortion set out in sections 58 and 59 of the Offences Against the Person Act 1861 which carries a maximum sentence of life in penal servitude for doctors and pregnant women. It found that against the background of substantial uncertainty caused by the lack of a legislative and regulatory regime, the criminal provisions of the 1861 Act constituted a significant chilling factor for women and doctors.

In this respect, it appears that the chilling factor noted by the Court should be reduced through the introduction of the new legislative and regulatory regime. Further, the new legislation repeals the general prohibition on abortion set out in the 1861 Act and replaces it with new legislation, which whilst reaffirming the general prohibition on abortion and providing for a maximum sentence of imprisonment of 14 years in the event of a failure to respect this prohibition, states expressly that it is not an offence for a doctor to carry out a termination where a woman is entitled to a lawful abortion.

As indicated above, the provisions in the General Scheme of the Bill have been subject to detailed, parliamentary scrutiny and will be codified in the legislation and regulations. In this context, the Committee might wish to preserve the possibility of making a full assessment of the final regime adopted in due course.

Decisions

The Deputies

1. recalled that in this case, the Court concluded that “the authorities failed to comply with their positive obligation to secure to the third applicant effective respect for her private life by reason of the absence of any implementing legislative or regulatory regime providing an accessible and effective procedure by which the third applicant could have established whether she qualified for a lawful abortion in Ireland under Article 40.3.3. of the Constitution” (§267);

2. welcomed the adoption of the General Scheme of the Protection of Life During Pregnancy Bill which sets out the legislative and regulatory framework that the authorities propose to put in place and which constitutes an important step toward executing the judgment;

3. noted further that the legislation and regulations outlined in the General Scheme of the Bill should be enacted by the end of July 2013, having due regard to the prerogative of parliament and the regulations will come into force shortly after;

4. noting with satisfaction the significant progress made, encouraged the authorities to continue their efforts to ensure full compliance with the judgment and invited them to continue to keep the Committee informed of all developments.

ITALY

Application: 22461/93

Judgment final on: 15/11/1996

CETERONI GROUP v. Italy

Enhanced procedure: complex problem

Reference texts:

Action report on administrative proceedings (30/07/2012) DH-DD(2012)718

Action plan (30/03/2012) DH-DD(2012)395

Action plan (length of civil proceedings) (10/11/2011) DH-DD(2011)898

Communication from Italy (16/04/2013) DH-DD(2013)415

Letter from the Registrar of the European Court of Human Rights to the Chair of the Committee of Ministers (14/12/2011) DD(2012)4

Reply from the Secretary of the Committee of Ministers to the Registrar (27/03/2012) DD(2012)4add

Letter from the Registrar of the European Court of Human Rights to the Chair of the Committee of Ministers (22/06/2012) DD(2012)4 add2

Reply from the Chair of the Committee of Ministers to the Registrar (09/10/2012) DD(2012)4add3

Letter from the Registrar of the European Court (13/12/2012) DH-DD(2013)468

Letter from the Secretariat (08/08/2012) DH-DD(2012)806

Reply from the authorities to the Secretariat’s letter (19/10/2012) DH-DD(2012)1001

Communication from Italy (25/10/2012) DH-DD(2012)1043, (16/11/2012) DH-DD(2012)1043add

Information documents: CM/Inf/DH(2005)31, CM/Inf/DH(2005)31add, CM/Inf/DH(2005)31add2, CM/Inf/DH(2005)33, CM/Inf/DH(2005)39, CM/Inf/DH(2008)42, CM/Inf/DH(2013)21

Interim resolutions: CM/ResDH(2010)224; CM/ResDH(2009)42; CM/ResDH(2007)2; ResDH(2005)114; ResDH(2000)135; DH(99)437; DH(99)436; DH(97)336

Decision adopted at the 1157th meeting (December 2012)

Case description: These cases concern the excessive length of judicial proceedings since the 1990s (violations of Article 6§1).

Status of execution: Individual measures: The Italian authorities indicated that they have reported to the domestic courts, with a view to speeding them up, the proceedings which were still pending at the time the judgments of the European Court became final.

General measures: These cases raise a complex structural problem. Several information documents have been prepared and 8 interim resolutions have been adopted by the Committee of Ministers since the end of the 1990s, the latest at its 1100th meeting (December 2010) (DH) (CM/ResDH(2010)224).

In 2011 and 2012, the authorities submitted several communications presenting the general measures adopted or envisaged to remedy this problem (DH-DD(2011)898, DH-DD(2012)395 and DH-DD(2012)718). The Committee of Ministers noted, however, that important issues, namely the monitoring of the impact of the measures already adopted and the calendar for the adoption of the other measures envisaged, remained to be clarified (see, most recently, the decision adopted at the 1157th meeting (December 2012) (DH). It therefore urged the Italian authorities to submit a consolidated action plan and encouraged them to closely cooperate with the Secretariat in drawing it up.

On 10 April 2013, the authorities presented consolidated information mainly on the measures adopted in civil matters since 2009 and on their impact. The submission of this information represents a first step in the preparation of the consolidated action plan requested by the Committee. It provides clarifications on the contents and the implementation of a “multi-strategic plan” drawn up by the Ministry of Justice in 2010 to reduce the length of these proceedings (see DH-DD(2011)898). This plan has two components: improving the efficiency of the judicial system and improving the efficiency of civil proceedings. The measures under the first component include the reorganisation of the judicial districts, the setting-up of new specialised courts, the implementation of a backlog and trials management at the level of each judicial office and each case judge and the wider use of information technology. The second component includes the introduction of mandatory mediation, of judicial fees for applications to review administrative sanctions and of a new filter in appeal proceedings, the simplification of the civil procedure, in particular by introducing a summary procedure in first instance, as well as the appointment of 600 honorary auxiliary judges to clear the backlog.

As at 10 April 2013, most of the measures set forth by the “multi-strategic plan” had already been implemented. This being said, some of them had their effectiveness affected: the mandatory nature of mediation was found unconstitutional and the use of the summary procedure meets in practice a certain resistance from the litigants. Moreover, the dissemination to all Italian courts of the organisational practices that some judicial offices had implemented with good results, envisaged by the authorities, remains yet to be organised.

The authorities also provided (partial) statistical data for 2011 and 2012. They show that the slight downward trend in the backlog of civil proceedings (-4%) begun in 2010 was confirmed in 2011 and 2012, albeit at a markedly less sustained rate. Indeed, while in 2010, the backlog was reduced by approximately 300,000 procedures as compared to 2009, the authorities, while they do not yet have final statistics for 2012, estimate that the decrease as compared to 2011 should only be of approximately 20,000 procedures. Thus, the overall backlog is still close to 5.5 million. The available data moreover indicates a progressive increase, since 2007, of the average length of the ordinary civil proceedings in first instance (from 973 days – that is approximately 2 years and 7 months – in 2007 to 1,139 days – that is approximately 3 years and 1 month, in 2012).

As regards criminal proceedings, the authorities indicated in March 2012 (see DH-DD(2012)395) that a draft law (No. 5019) aiming at improving the efficiency of the criminal proceedings had been presented before the Chamber of Deputies in February 2012. Among the measures this drafts sets forth are the reclassification of a number of minor criminal offences into administrative offences and the possibility for the judge to suspend the trial and place the accused on probation.

As regards administrative proceedings, in July 2012, the authorities indicated that a legislative reform resulted in the adoption in 2010 of a new Code of Administrative Proceedings, which came into force on 16 September 2010. As a consequence of this reform, in 2011, the administrative courts (the Council of State and the regional administrative courts) registered an overall decrease of the backlog of 68,302 cases. According to the Italian authorities, although the results of this reform are “hampered” by the need to process the backlog, the length of administrative proceedings is presently in a better position when compared to that of the civil proceedings. As requested by the Committee at its 1157th meeting (DH) (December 2012), it is necessary for the authorities to supplement this information with updated statistical data on the average length of these proceedings and with details on the manner in which the impact of this reform is monitored and assessed.

For more details see document CM/Inf/DH(2013)21.

CETERONI GROUP

Application

Case

Judgment of

Final on

22461/93

CETERONI (list of cases)

15/11/1996

15/11/1996

1172nd meeting – Notes

(see under Mostacciuolo)

1172nd meeting – Points for consideration

(see under Mostacciuolo)

ITALY

Application: 32190/96

Judgment final on: 17/10/2003

LUORDO GROUP v. Italy

Enhanced procedure: major structural problem

Reference texts

Action plan (16/01/2012) DH-DD(2012)58

Letter from the Registrar of the European Court of Human Rights to the Chair of the Committee of Ministers (14/12/2011) DD(2012)4

Reply from the Secretary of the Committee of Ministers to the Registrar (27/03/2012) DD(2012)4add

Letter from the Registrar of the European Court of Human Rights to the Chair of the Committee of Ministers (22/06/2012) DD(2012)4 add2

Reply from the Chair of the Committee of Ministers to the Registrar (09/10/2012) DD(2012)4add3

Letter from the Registrar of the European Court (13/12/2012) DH-DD(2013)468

Letter from the Secretariat (08/08/2012) DH-DD(2012)806

Reply from the authorities to the Secretariat’s letter (19/10/2012) DH-DD(2012)1001

Communication from Italy (25/10/2012) DH-DD(2012)1043, (16/11/2012) DH-DD(2012)1043add

Information documents CM/Inf/DH(2005)31; CM/Inf/DH(2005)39, CM/Inf/DH(2013)21

Interim resolutions CM/ResDH(2010)224 ; CM/ResDH(2009)42 ; CM/ResDH(2007)27

Decision adopted at the 1157th meeting (December 2012)

Case description: These cases concern the restrictions on the applicants' individual rights following bankruptcy proceedings and, in certain cases, the excessive length of bankruptcy proceedings since the 1990s (violations of Articles 6§1, 8, 13, 1 of Protocol No. 1, 3 of Protocol No. 1, and 2 of Protocol No. 4).

Status of execution: Individual measures: The Italian authorities indicated that they have reported to the domestic courts, with a view to speeding them up, the proceedings which were still pending at the time the judgments of the European Court became final,

General measures: As regards the restrictions of the applicants' individual rights following bankruptcy proceedings, Legislative Decree No. 5/2006 allowed erasing the restrictions of rights and freedoms criticised in the Court's judgments.

The length of such proceedings raises a complex systemic problem. Three interim resolutions have been adopted by the Committee of Ministers, the latest at its 1100th meeting (December 2010) (DH) (CM/ResDH(2010)224).

In an action plan provided on 16 January 2012 (DD-DH(2012)58), the Italian authorities presented the measures taken in this group of cases as well as statistical data showing that, from 2008 to 2010, a decrease in the average length of bankruptcy proceedings was registered (from approximately 9 years in 2008 to approximately 7 years in 2010).

For more details, see document CM/Inf/DH(2013)21.

LUORDO GROUP

Application

Case

Judgment of

Final on

32190/96

LUORDO (list of cases)

17/07/03

17/10/03

1172nd meeting – Notes

(see under Mostacciuolo)

1172nd meeting – Points for consideration

(see under Mostacciuolo)

ITALY

Application: 64705/01, 64705/01

Judgment final on: 29/03/2006, 20/06/2011

MOSTACCIUOLO Giuseppe (I) GROUP v. Italy

GAGLIONE AND OTHERS v. Italy

Enhanced procedure: complex problem

CM reference texts:

Action plan (30/03/2012) : DH-DD(2012)395

Action plan (18/10/2011) DH-DD(2011)899

Communication from Italy (16/04/2013) DH-DD(2013)415

Letter from the Registrar of the European Court of Human Rights to the Chair of the Committee of Ministers (14/12/2011) DD(2012)4

Reply from the Secretary of the Committee of Ministers to the Registrar (27/03/2012) DD(2012)4add

Letter from the Registrar of the European Court of Human Rights to the Chair of the Committee of Ministers (22/06/2012) DD(2012)4 add2

Reply from the Chair of the Committee of Ministers to the Registrar (09/10/2012) DD(2012)4add3

Letter from the Registrar of the European Court (13/12/2012) DH-DD(2013)468

Letter from the Secretariat (08/08/2012) DH-DD(2012)806

Reply from the authorities to the Secretariat’s letter (19/10/2012) DH-DD(2012)1001

Communication from Italy (25/10/2012) DH-DD(2012)1043, (16/11/2012) DH-DD(2012)1043add, (30/11/2011) DH-DD(2012)1125

Information document CM/Inf/DH(2013)21

Interim resolutions CM/ResDH(2010)224 ; CM/ResDH(2009)42 ; CM/ResDH(2007)2

Decision adopted at the 1157th meeting (December 2012)

Cases description: 1) These cases concern the insufficient amount and the delays in payment of awards made in the context of a compensatory remedy available since 2001 to victims of excessively lengthy proceedings, under Act No. 89/2001 (the “Pinto” Law) (violations of Article 6§1 and/or Article 1 of Protocol No. 1).

In its quasi-pilot judgment Gaglione and others (475 applicants), the European Court found that the delay by the Italian authorities in implementing the “Pinto” decisions ranged from 9 to 49 months, reaching 19 months in 65% of the cases. Under Article 46, it underlined the existence of a widespread problem: on 7 December 2010, more than 3,900 applications relating among other things to the delay in paying "Pinto" compensations were pending before the Court. The number of applications has increased from more than 600 lodged in 2007 to more than 1,300 in 2010. On 31 December 2008, more than 81,000,000 EUR had been paid as “Pinto” compensation and approximately 36,500,000 EUR remained payable (§§52 and 53). The Court saw in this failure on the part of the State not only an aggravating factor with regard to its responsibility under the Convention, but also a threat to the future of the system set in place by the Convention: it observed that general measures at national level are undoubtedly required to re-establish the effectiveness of the "Pinto" remedy, including earmarking more funds in the budget for the implementation of “Pinto” decisions (§§55 and 59).

2) Some of these cases also concern the excessive length of the proceedings brought in the context of this compensatory remedy (violations of Article 6§1).

In the case of Belperio and Ciarmoli (judgment of 21/03/2010), the European Court found in particular that the cases pending before it and concerning the length of “Pinto” proceedings may point to a general problem in its functioning (§54).

Status of execution: Individual measures: The Italian authorities indicated that they have reported to the domestic courts, with a view to speeding them up, the proceedings which were still pending at the time the judgments of the European Court became final.

General measures: As regards the determination of compensatory amounts, domestic case-law developments show compliance with the criteria set by the European Court.

1) Problem of delays in paying the compensation awarded by national courts under the “Pinto” procedure

The Committee of Ministers strongly encouraged the authorities to consider amending Act No. 89/2001 with a view to setting up a financial system resolving the problems of delay in the payment of compensation awarded, to simplify the procedure and to extend the scope of the remedy to include injunctions to expedite proceedings (see Interim Resolutions CM/ResDH(2009)42 and CM/ResDH(2010)224).

Amendments were brought to the “Pinto” Law by Legislative Decree No. 83, issued on 22 June 2012, converted by Law No. 134 of 7 August 2012. The new provisions introduced a written procedure for the examination of the compensation claims. Other provisions conditioned the access to the Pinto remedy upon termination of the main proceedings and excluded or limited the compensation in certain cases. At its 1157th meeting (December 2012), the Committee of Ministers noted with concern that some of these amendments may raise issues as to their compatibility with the requirements of the Convention and the Court’s case-law on effectiveness of remedies and compensation criteria. Furthermore, under the new legislation, the purely compensatory nature of the “Pinto” remedy is maintained.

In parallel, the authorities modified the system of payment of the “Pinto” debts which, as of August 2012, is made by the Ministry of Justice (and no longer by the Courts of Appeal). On 30 October 2012, following the allocation of a 30 million euro budget to this purpose, the Ministry of Justice begun paying the arrears of these debts for the period 2005 – 2008.

On 30 November 2012, the authorities indicated that a reform of the financial system provided by the “Pinto” Law aimed essentially at lifting the budgetary limitations on the payments was under consideration and that the solutions envisaged by the Ministry of Justice on this point had been favourably met by the Ministry for Economy and Finance. They also announced:

- the adoption, in the framework of the budget law for 2013, of a provision which would now exempt from seizure the funds allocated for the payments made under the “Pinto” Law;
- the allocation, through the same law, of a 50 million euro budget for the payments to be made under the “Pinto” Law in 2013, foreseen to be available in the beginning of 2013;
- the adoption of an action plan for the friendly settlement of the repetitive cases brought before the European Court and which concern the “Pinto” remedy (it is envisaged to finalise these settlements in 2014).

The authorities have not yet presented a timetable for the adoption of the reform of the financial system set by the “Pinto” Law nor confirmed the allocation of the funds for the payments to be made in 2013. As regards the first measure mentioned above, it was found that the budget law for 2013, adopted on 24 December 2012, indeed exempts from seizure the funds earmarked for the payments to be made under the “Pinto” Law.

2) Problem of excessive length of “Pinto” proceedings

The authorities consider that the recent amendments brought to the “Pinto” Law (see above) simplified the procedure and will allow avoiding similar violations. They indicated that these amendments are applied to the proceedings brought under this Law as of 11 September 2012. Precise data on the number and the length of the “Pinto” proceedings processed under the new provisions will be collected and should be available by the end of May 2013.

For more details, see document CM/Inf/DH(2013)21.

Application

Case

Judgment of

Final on

64705/01

MOSTACCIUOLO GIUSEPPE No. 1 (list of the cases)

29/03/2006

Grand Chamber

45867/07+

GAGLIONE AND OTHERS

21/12/2010

20/06/2011

1172nd meeting – Notes

As was done at the last meetings, it is proposed that the Deputies take together the groups of cases Ceteroni (excessive length of civil, criminal and administrative proceedings), Luordo (excessive length of bankruptcy proceedings) and Mostacciuolo and Gaglione and others (“Pinto” remedy available to victims of excessively lengthy proceedings).

Information document CM/Inf/DH(2013)21 contains a detailed presentation and a preliminary assessment of the information available to date, including that submitted by the authorities on 10 April 2013 mainly as regards the civil proceedings. The salient points of this assessment can be summarised as follows:

It remains urgent to remedy the dysfunctions in the remedy set by the “Pinto” Law and to confirm the earmarking of the funds for the payments to be made in 2013 under this law.

As regards the substantive problem raised by the excessive length of civil proceedings, the present situation, as it results from the information presented by the authorities, shows above all the need to carry out at national level an active and efficient monitoring of the implementation of the strategy developed by the authorities in this field. Considering the negative effect that the backlog of civil proceedings can have on the efficiency of these measures, more extensive information is needed on the implementation of measures directly aimed at clearing this backlog. Moreover, in order to allow a clear view of the situation, the authorities should supplement the information provided with data on the average length of civil proceedings in appeal and cassation.

As regards criminal proceedings, updated information on the adoption of the reform announced in 2012 is awaited. The authorities should also provide their assessment of the impact of the reforms undertaken before 2012 (in particular the 2008 reform of the Code of Criminal Procedure) as well as data on the average length of such proceedings, clearance rate and size of the backlog, in respect of each year of the period 2008 – 2012.

In respect of administrative proceedings, the information requested by the Committee at its 1157th meeting is still awaited.

As regards bankruptcy proceedings, updated statistical data on the average length of these proceedings could allow the Committee to assess whether the reversal of the trend seen between 2008 and 2010 is confirmed.

The outstanding issues as regards all proceedings concerned by these groups of cases should be addressed by the authorities in the consolidated action plan awaited by the Committee.

Decisions

The Deputies

1. noted with satisfaction that the Italian authorities reiterated their determination to adopt the necessary measures to eradicate the structural problem of the excessive length of judicial proceedings in Italy and to put an end in a sustainable manner to the recurring delays in the payment of the compensation awarded under the “Pinto” Law;

2. took note of the current status of implementation of the general measures in these groups of cases, presented in information document CM/Inf/DH(2013)21, and decided to declassify this document;

As concerns the problem of excessive length of judicial proceedings

3. recalled that encouraging trends began to be recorded between 2008 and 2010 for the bankruptcy proceedings and in 2011 as regards the backlog in the administrative proceedings, and noted that most of the reforms announced to the Committee for the civil proceedings have been adopted;

4. took note of the information provided during the meeting and welcomed the efforts made by the Italian authorities, while observing that additional information (in particular as regards criminal proceedings) and precise and updated data are still necessary for a full assessment of the situation; underlined in this respect that the long-term success of the strategy adopted hinges upon the setting-up at domestic level of a monitoring mechanism for the reforms, allowing the authorities to measure their impact and to adopt rapidly the additional and/or corrective measures which might be required;

5. invited the authorities to finalise, in close co-operation with the Execution Department and by taking into account the comments made in information document CM/Inf/DH(2013)21, a consolidated action plan enabling the Committee to assess the progress in the initiated process;

As regards the dysfunctions of the “Pinto” remedy

6. noted with interest that as a result of the new provisions set forth by the budget law for 2013, the funds allocated for the payments to be made under the “Pinto” Law are henceforth exempted from seizure;

7. reiterated however their invitation to the authorities to provide information on the lifting of the budgetary limitations on the payment of the compensation awarded under the “Pinto” Law and on the earmarking of necessary funds for the payment of the arrears in this compensation, announced to the Committee in December 2012;

8. stressing in this connection the urgency to stop the flow of repetitive applications before the European Court caused by the deficiencies in the “Pinto” remedy, called upon the authorities to adopt these measures without further delay and invited them to keep the Committee regularly informed of the progress achieved in this matter.

ITALY

Application: 22635/03

Judgment final on: 06/11/2009

SULEJMANOVIC v. Italy

Enhanced procedure : complex problem

Reference texts:

Updated action plan (29/06/2012) DH-DD(2012)670

Action plan (23/11/2011) DH-DD(2011)1113

Communication from a NGO (Radicali Italiani) (19/09/2012) DH-DD(2013)380

Decision adopted at the 1150th meeting (September 2012)

Case description: Inhuman or degrading treatment suffered by the applicant on account of the conditions of his detention in Rebibbia prison (Rome), due to the excessively confined space at his disposal in a cell resulting from overcrowding (violation of Article 3).

The European Court noted that for more than two and a half months the applicant was obliged to live in a very confined space, much smaller than the minimum surface considered as desirable by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). According to the Court, the evident lack of personal space suffered by the applicant constituted, in itself, inhuman or degrading treatment (§ 43 of the judgment).

Status of execution: Individual measures: Mr Sulejmanovic was released in October 2003 and the European Court awarded him just satisfaction in respect of non-pecuniary damages suffered. Therefore no further individual measure seems necessary.

General measures: On 29/06/2012, the authorities provided an updated action plan, presenting the details of the structural measures taken and planned (so-called “Piano carceri” plan), the domestic remedy available to prisoners as well as certain further measures envisaged. The authorities underlined that the fight against prisons’ overcrowding is a priority of the Minister of Justice. This information was assessed at the last examination of the case when the Committee noted the action plan with interest, and asked the authorities for further information and clarifications, notably on:

    - the exact number of additional places foreseen in prisons, as well as the additional total capacity of the prison estates;

    - the meaning and status of the Ministry of Health standard relating to the minimum living space per detainee and how the total capacity of prison establishments is calculated

    - the monitoring carried out on detention conditions, including up-to-date statistics on the reduction in prison overcrowding, and details on the impact of the different measures adopted so far.

The Committee also strongly encouraged the Italian authorities to redouble their efforts so as to find a lasting solution to the problem of prison overcrowding and stressed the importance of the existence, both in theory and practice, of effective domestic remedies in this context. A response is still awaited to the Committee’s request for information and clarifications.

Since then, the European Court gave a pilot judgment in the case of Torreggiani and others in which it found that the violation of the applicants` right to adequate detention conditions was not an isolated incident, but has its origins in a systemic problem, resulting from the chronic dysfunction of the Italian penitentiary system (§88). It also expressed concern about the fact that around 40% of detainees in Italian prisons are persons detained on remand (§ 94) and encouraged the authorities to reduce to a minimum the use of detention on remand. Moreover, the Court found that lack of personal space suffered by the applicants, was further aggravated by other factors such as the lack of hot water for long periods of time and insufficient lighting and ventilation in cells (§ 77). With reference to the question of a remedy, the judgment stated that the domestic authorities must put in place within one year from the date on which the judgment became final, an effective domestic remedy or a combination of such remedies capable of affording, in accordance with the Convention`s principles, adequate and sufficient redress in cases of overcrowding in prisons (§ 99).

On 12 April 2013, the Italian authorities informed the Secretariat that they had requested a referral of the pilot judgment to the Grand Chamber on 8 April 2013. That request was refused by the Grand Chamber panel on 27 May 2013 and the pilot judgment became final on the same date.

Application

Case

Judgment of

Final on

22635/03

SULEJMANOVIC

16/07/2009

06/11/2009

1172nd meeting - Notes

The questions raised in the case of Sulejmanovic were examined in detail by the Committee at its 1150th meeting (September 2012). The case was proposed for the Order of Business for the June 2013 meeting in order that the Committee could, on the one hand take note of the deadline fixed in the pilot judgment Torreggiani and others for the introduction of a remedy and on the other hand, recall the questions raised and clarifications requested at the last examination of the Sulejmanovic case, to which to no reply has been given so far.

Decisions

The Deputies

1. recalled that at its 1150th meeting (September 2012) (DH), the Committee assessed in detail the Action plan submitted by the authorities in the Sulejmanovic case and invited them to submit further information and clarifications on :

    - the exact number of additional places foreseen in prisons, as well as the additional total capacity of the prison estates;

    - the meaning and status of the Ministry of Health standard relating to the minimum living space per detainee and how the total capacity of prison establishments is calculated

    - the monitoring carried out on detention conditions, including up-to-date statistics on the reduction in prison overcrowding, and details on the impact of the different measures adopted so far;

2. recalled that the Committee also underlined in this context the importance of the existence, both in theory and practice, of effective domestic remedies;

3. noted in this respect that the European Court delivered the pilot judgment Torreggiani and others, which sets a deadline of one year for the authorities to put in place an effective domestic remedy or a combination of such remedies capable of affording adequate and sufficient redress in cases of overcrowding in prisons;

4. noted that this judgment has become final on 27 May 2013 and encouraged the authorities to deploy all the necessary efforts with a view to submitting an action plan, together with a calendar, for the setting up of such a remedy by the deadline set, namely before the 27 May 2014;

5. furthermore strongly encouraged the Italian authorities to submit the further information and clarifications already requested by the Committee without delay.

REPUBLIC OF MOLDOVA

Application: 18919/10

Judgment final on: 06/03/2012

TARABURCA v. Republic of Moldova

Enhanced procedure: complex problem

Reference texts:

Action plan (12/03/2013) DH-DD(2013)450

Case description: Ill-treatment of the applicant by the police in connection with the violent demonstrations in Chişinau in April 2009 following the parliamentary elections and ineffective investigations at all levels in this respect (violation of Article 3 in its substantive and procedural limbs). The Court held that the Government did not give an acceptable explanation for the origin of the applicant’s injuries suffered while he was in detention and that the investigation did not comply with a number of procedural requirements.

The Court further noted that, “unlike previous cases which it has examined in respect of the Republic of Moldova concerning individual cases of alleged ill-treatment, the present case appears to be part of a large number of similar allegations of ill-treatment committed during a relatively short period of time. The situation was considered so serious by the European Committee for the Prevention of Torture as to conclude […] that ‘rather than isolated incidents, there were patterns of alleged ill-treatment’ […] Similar conclusions were reached by the Commissioner for Human Rights of the Council of Europe […] and the parliamentary inquiry commission tasked with the elucidation of the causes and consequences of the events following the general elections” (§48).

The Court also referred to the lack of independence of the authority responsible for the preliminary investigations, the Ministry of Internal Affairs, as this Ministry was also the head of the police officers involved in the incidents (§54). It further expressed concerns in respect of the independence and quality of work of legal-aid lawyers during the relevant events, the summary manner in which judges examined cases inside police stations, as well as the lack of resolute action against ill-treatment by investigating judges and prosecutors during the events (§52).

Status of execution: The authorities of the Republic of Moldova provided a preliminary action plan on 12/03/2013 (see DH-DD(2013)450). The main thrust of the plan is presented below.

Individual measures: The just satisfaction awarded by the Court in respect of non-pecuniary damage and of costs and expenses was paid within the deadline.

As regards the ineffective investigation into the applicant’s complaint of ill-treatment by the police, the Moldovan authorities informed that the prosecution authorities have reopened the criminal investigation in this respect, which is currently pending.

General measures: The information submitted by the authorities of the Republic of Moldova includes a range of different measures.

After the violent post-election events of April 2009, the Government and the Parliament have expressed their regrets with respect to the inappropriate reaction of the national law enforcement bodies and the judiciary, acknowledging that the judiciary system had actually collapsed after these unfortunate events. They also expressed their political will for an urgent reform of the entire judicial sector and reiterated their duty to take concrete measures in fighting torture and ill-treatment and in avoiding arbitrary detention.

In October 2009, the Parliament set up a parliamentary inquiry commission tasked with the elucidation of the causes and consequences of the April events and adopted the report drafted by this commission in June 2010. Another report is currently awaited on the implementation of the recommendations made by the commission on the follow-up action to be taken by various governmental and judicial bodies.

The Government has also established, in February 2012, a special permanent government commission tasked with the identification of “civilians” and “State force employees” who were victims of the April 2009 events. As a result, in April 2012, the Government granted compensation to 73 civilians and 43 state force employees. This compensation is intended solely as a financial aid but does not replace compensation for material or moral damage which might be granted by courts or other competent bodies, nor does it replace domestic investigations and/or proceedings in relation to ill-treatment complaints.

The preliminary action plan provided also includes information on a number of other issues, such as the adoption, in November 2011, of a strategy on the reform of the judicial sector for 2011-2016; the adoption of legislative amendments to judicial procedures relating to arrest and detention pending trial, to the Criminal Code, to the Code of Criminal Procedure and to Law no. 1545 on compensation for unlawful acts of judicial and prosecution authorities; the issuing of internal instructions and explanatory decisions from the General Prosecutor’s Office and the Supreme Court in respect of arrest proceedings; the establishment of a specialised division for the investigation of torture and ill-treatment within the Prosecutor General’s Office (with specialised prosecutors in each territorial subdivision); the on-going reform of the Ministry of the Interior; and the training activities for different state and judicial actors.

Application

Case

Judgment of

Final on

18919/10

TARABURCA

06/12/2011

06/03/2012

1172nd meeting – Notes

Individual measures:

It is noted that the criminal investigation in respect of the applicant’s complaint of ill-treatment was reopened following the Court’s judgment. It is important that the Committee receives further information on how it will be ensured that the reopened investigation will comply with the requirements of the Convention and the Court’s case-law and remedy the shortcomings criticised by the Court.

General measures:

The particular findings of the Court in this case (see §§48-52 of the judgment) include a “background of what appears to have been systematic and large-scale ill-treatment of detainees by the police” during the events at issue (§49). It is further noted that the general issues raised in this case are also at the basis of a further recent judgment (not yet final), where the Court found the same violations with regards to a 15-year old minor.4

It is recalled that the general measures aimed at preventing ill-treatment, notably in the context of arbitrary detention, and the effectiveness of investigations into such acts, are already examined in the context of the Corsacov group of cases. In view hereof, it is proposed to concentrate the examination of the execution of the Taraburca case to the special measures which may be required in order to allow law enforcement officials to tackle important disruptions of law and order.

In the light hereof, it is welcomed that following the April 2009 events, the Moldovan authorities reiterated their duty to take concrete action in the fight against torture and ill-treatment and against arbitrary detention. They have also publicly expressed their regrets about the actions of the police and the judiciary and taken a number of actions to clarify the events and provide explanations and compensation to victims.

In the context of the Taraburca case, it would be useful to develop the preliminary action plan in order to provide further details about the special measures taken or under way in order to tackle the problems encountered in cases of important disruptions of law and order, in particular as regards the prevention of ill-treatment by law enforcement officials when faced with mass riots, the prevention of retaliation by state actors in such situations, and the effectiveness of investigations, notably to ensure that they are carried out without delay by independent authorities.

Decisions

The Deputies

1. recalled the findings of the European Court according to which the Taraburca case appears to belong in the context of a large number of similar allegations of ill-treatment committed during a relatively short period of time marked by the violent demonstrations which occurred after the elections in April 2009;

2. welcomed that after the post-election events in April 2009, the Government and the Parliament expressed their regrets for the inappropriate reaction of the national law enforcement bodies and the judiciary, and that the Moldovan authorities have expressed their firm engagement to take concrete measures to combat torture and ill-treatment and to prevent arbitrary detention;

3. noted, as regards individual measures, the reopening of the domestic investigation into the applicant’s complaint of ill-treatment following the Court’s judgment and invited the Moldovan authorities to inform the Committee on the steps taken to ensure that this investigation fully complies with the Convention requirements and the Court’s case-law and remedies the shortcomings criticised by the Court, as well as on any developments;

4. noted, as regards general measures, the information outlined in the preliminary action plan and agreed to concentrate their examination in the context of this case on the measures taken or envisaged with a view to preventing similar violations as those found by the Court in cases of important disruptions of law and order;

5. invited the Moldovan authorities to provide, in close co-operation with the Secretariat, additional information in this respect to their preliminary action plan and to present a consolidated and updated action plan as soon as possible.

ROMANIA

Application :57001/00, 30767/05

Judgment final on: 30/11/2005, 12/01/2011

STRAIN AND OTHERS GROUP v. Romania

MARIA ATANASIU AND OTHERS v. Romania

Enhanced procedure: pilot judgment

Reference texts:

Information document CM/Inf/DH(2013)24

Revised action plan (21/05/2013) DH-DD(2013)559

Letter from the Registry of the European Court (13/05/2013) DH-DD(2013)536

Memorandum H/Exec(2013)1 + Addendum – Conclusions of the tripartite consultations between high level representatives of the Romanian Government, the Execution Department and the Registry of the European Court on the draft law of March 2013

Communication from NGOs (Association pour la Propriété Privée – APP, Association de Personnes Dépossédées Abusivement et des Anciens Déportés Réfugiés de Roumanie – APDAADR, APPAE, et RESRO) (11/03/2013) DH-DD(2013)316

Communication from NGOs (APP, APDAFDR and APDAS) (20/03/13) and reply from the authorities (03/04/2013) DH-DD(2013)375

Communication from a NGO (Asociaţia pentru Proprietatea Privată - APP, Asociaţia Persoanelor Deposedate Abuziv şi a Foştilor Deportaţi Refugiaţi din Romania - APDAFDR) (02/04/13) and reply from Romania (12/04/2013) DH-DD(2013)419

Communication from a NGO (Interessenvertretung Restitution in Rumänien e.V.)(17/04/13) and reply of the authorities (24/04/2013) DH-DD(2013)478

Communication from NGOs and reply of the government (31/05/2013) DH-DD(2013)625

Decision adopted at the 1164th meeting (March 2013)

Case description: The violations found in these cases originated in an important structural problem connected with the ineffectiveness of the mechanism set up to afford restitution of or compensation for properties nationalised during the communist regime.

The cases in this group mainly concern:

- the sale by the State of nationalised property to the tenants, without securing compensation for the legitimate owners, despite domestic courts' rulings, between 1993 and 2006, declaring unlawful the acts of nationalisation (violations of Article 1 of Protocol No. 1, see the case of Străin and others, judgment of 21/07/2005);

- the delayed enforcement by the administrative authorities or their failure to enforce judicial or administrative decisions delivered between 1991 and 2006, ordering restitution of nationalised property and/or payment of compensation in lieu (violations of Article 1 of Protocol No. 1 and/or of Article 6§1, see the Popescu Sabin case, judgment of 02/03/2004 and the Viasu case, judgment of 09/12/2008).

Considering the scale of the problem, the European Court gave a pilot judgment in the case of Maria Atanasiu and others (judgment of 12/10/2010), in which it requested the adoption of measures capable of affording adequate redress to all the persons affected by the restitution laws within 18 months. This deadline, extended twice by the Court, expired on 12 May 2013. The Court adjourned the consideration of all the applications stemming from the same general problem until the adoption of one or several lead decisions on the action taken by the Government in response to the pilot judgment (see DH-DD(2013)536).

Status of execution: Individual measures: In a number of cases information is still awaited on whether the property has been returned to the applicants or if they have received the just satisfaction awarded by the European Court. In its judgments, the Court has in effect left to the State the choice between these two possibilities.

General measures: With a view to responding to the Court’s judgments, an interministerial group prepared a first draft law (see DH-DD(2012)505) aimed at rendering the restitution and compensation process more effective. Assessed by the Secretariat in the Memorandum CM/Inf/DH(2012)18, this first draft was analysed by the Committee at its 1144th meeting (June 2012).

At its 1164th meeting (March 2013), the Committee invited the authorities to present it with the final version of the draft law and the justifications of the measures it contains before the end of March 2013, as well as to remain in close co-operation with the Execution Department on the questions that the draft law might raise.

In March 2013, the Romanian authorities presented a new draft law (http://www.coe.int/t/dghl/monitoring/execution/News/Strain_projet_loi_fr.pdf). While the first draft, presented to the Committee in 2012, provided, as a sole reparation measure, the award of pecuniary compensation, to be capped and paid in instalments over a period of 10-12 years, the new draft gives priority to the restitution of the nationalised property and compensation in kind; pecuniary compensation is intended as a subsidiary measure.

In depth consultations on this new draft law took place in Strasbourg, on 5 April 2013, between high level representatives of the Romanian government, the Execution Department and the Registry of the European Court. The issues raised, as well as the conclusions of this tripartite meeting are detailed in the Memorandum H/Exec(2013)1, prepared by the Execution Department in close cooperation with the Registry of the European Court.

The draft law, revised following these consultations, was adopted by the Parliament on 22 April 2013. Following the review of its constitutionality the new law entered into force on 20 May 2013. Its text in French, together with an explanatory report and a revised action plan were submitted to the Committee on 21 May 2013.

Application

Case

Judgment of

Final on

30767/05

MARIA ATANASIU AND OTHERS

12/10/2010

12/01/2011

57001/00

STRĂIN AND OTHERS GROUP (list of the cases)

21/07/2005

30/11/2005

1172nd meeting – Notes

On the basis of the documents submitted by the authorities and the information they provided at the tripartite meeting of 5 April 2013, the Secretariat prepared, in close co-operation with the Registry of the European Court, a memorandum of assessment of the new law (CM/Inf/DH(2013)24).

Decisions

The Deputies

1. welcomed the determination demonstrated by the Romanian authorities in the execution of the pilot judgment Maria Atanasiu and others, which has allowed the adoption of the new law reforming the reparation mechanism with a view to ensuring its effectiveness and viability; welcomed in this respect their engagement in close consultations with the Execution Department and the Registry of the European Court, in particular at the tripartite meeting held in Strasbourg on 5 April 2013;

2. took note of the decision of the European Court to maintain the freeze on repetitive cases until it could decide by one or several lead decisions on the action taken by the Romanian authorities in response to the pilot judgment Maria Atanasiu and others;

3. encouraged the Romanian authorities to continue to cooperate with the Execution Department with a view to clarifying the outstanding issues identified in the Memorandum CM/Inf/DH(2013)24 and decided to declassify this document;

4. underlined the importance of a close and constant monitoring of the application of the new law at the domestic level so that the competent authorities can intervene rapidly if necessary, including by legislative measures, with a view to ensuring an effective operation of the newly established mechanism;

5. invited the Romanian authorities to keep the Committee regularly informed of the implementation of the first stages of the application of the new law, with a view to enabling it to assess the progress made at the latest at its December 2014 DH meeting.

RUSSIAN FEDERATION

Application: 38411/02

Judgment final on: 30/01/2008

GARABAYEV GROUP v. the Russian Federation

Enhanced procedure: complex problem

Reference texts:

1. Information from the Russian authorities.

Communication concerning the Yuldashev case (26/03/2013) DH-DD(2013)339

Action plan concerning the Garabayev group (09/02/2012) DH-DD(2012)152

Communication concerning the Garabayev group (14/05/2012) DH-DD(2012)489

Additional action plan concerning the Garabayev group (03/09/2012) DH-DD(2012)755rev

Communication from the Russian authorities (01/02/2013) DH-DD(2013)93

Information submitted on the execution of individual cases which could be found on the web site of the Department for the Execution of Court’s judgments: http://www.coe.int/t/dghl/monitoring/execution/Themes/Add_info/RUS-Garabayev_en.asp

2. Communications from the applicants’ representatives.

Communication from the applicant's representative in the Sultanov case (02/08/2011) DH-DD(2011)624

Communication from the applicant's representative in the Iskandarov case (14/12/2011) DH-DD(2012)24

Communication from the applicant's representative in the Yuldashev case (08/03/2013) DH-DD(2013)259

3. Communication from NGOs

Communication from an NGO (Garabayev group) (15/12/2011) DH-DD(2012)158

Joint communication from NGOs and lawyers(Garabayev group) (17/04/2012) DH-DD(2012)422

Communication from NGOs (Human Rights Institute (Moscow) and the Human Rights Centre "Memorial") (19/02/2013) DH-DD(2013)218

Communication from a NGO (02/05/2013) DH-DD(2013)552

4. Letters from the Registry of the European Court

Letter from the Registry (Latipov case) (18/05/2012) DH-DD(2012)538

Letter from the Registry (Savriddin Dzhurayev case) (26/01/2012) DD(2012)214

Letter from the Registry (Latipov) (09/11/2012) DH-DD(2012)1046

Letter from the Registry (Kasymakhunov No. 2) (24/01/2013) DH-DD(2013)75

Letter from the Registry (Abdulkhakov ) (28/02/2013) DH-DD(2013)228

Letter from the Chair of the Committee of Ministers (05/04/2013) DH-DD(2013)394

Decision adopted at the 1164th meeting (March 2013)

Case description: Most of the cases concern violations of Article 5§1 due to the absence of clear legal provisions establishing the procedure for ordering and extending detention with a view to extradition and of time-limits for such detention. They also concern violations of Article 5§4 due to the lack of the possibility for a person detained pending extradition to initiate judicial review of the lawfulness of his detention.

In a number of cases, the European Court found that there would be a violation of Article 3 if the applicants were extradited to the requesting countries and that the domestic courts failed to scrutinise rigorously the applicants' allegations of risk of ill-treatment (violation of Article 13).

The Iskandarov case concerns a specific issue of the applicant's unreported and arbitrary arrest in 2005, after the request for his extradition had been officially refused, by allegedly unknown persons whom the Court found to be Russian State agents (Article 5§1) and his forcible transfer to Tajikistan in circumstances in which the authorities must have been aware that the applicant faced a real risk of ill-treatment (Article 3).

The Abdulkhakov case also concerns the applicant’s illegal transfer to Tajikistan (while his extradition was sought by Uzbekistan) and notwithstanding an interim measure indicated by the Court under Rule 39 on account of a serious risk of ill-treatment which the applicant would have faced if extradited to Uzbekistan. In addition to violations similar to those found in other cases of this group (violations of Articles 5§1 and 5§4), the Court found that there would be a violation of Article 3 in the event of the applicant’s extradition to Uzbekistan; it found violation of Article 3 of the Convention on account of the applicant’s transfer by the Russian authorities to Tajikistan. Finally, the Court found a violation of Article 34 on account of the Russian authorities’ failure to comply with an interim measure indicated by the Court.

Status of execution: Individual measures: In most of the cases, the applicants do no longer run the immediate risk of being extradited (applicants released, extradition orders quashed and applicants' names removed from the wanted list where necessary), except in three recent cases (Rustamov, Umirov and Makhmudzhan Ergashev). Information is awaited on the applicants’ current situation in a number of cases.

As regards the Abdulkhakov case, it results from the Court’s judgment that the applicant was released by the Tajik authorities on 23 November 2011, following a judicial decision, and that he has been in hiding ever since. As he intends to return to the Russian Federation, he asked the United Nations Refugee Agency to assist him in recovering his passport which had been retained by the Federal Migration Service in Moscow (§ § 63-65 of the judgment). Given the findings in paragraph 151 of the judgment, the Committee should be informed of the measures taken, in case the applicant returns to the Russian Federation, to ensure that he does not run the risk of being extradited to Uzbekistan.

As regards the Muminov and Iskandarov cases, the applicants are in custody in Uzbekistan and Tajikistan respectively. On 3/09/2012 the Russian authorities provided information on the applicants’ current situation and on the efforts made to ensure the payment of the just satisfaction (DH-DD(2012)755). Up-dated information is awaited.

As regards the Iskandarov case, on 3/09/2012 the Russian authorities submitted a detailed report on the domestic investigation (DH-DD(2012)755). Since then, the Committee has expressed on several occasions its regrets in view of the lack of tangible results in this investigation.

General measures: As regards the Iskandarov case, it is recalled that in view of the other incidents similar to the one at issue (see the letters from the Registry of the Court DD(2012)214, DH-DD(2012)1046, and a NGOs’ submission DH-DD(2012)422), the Committee repeatedly expressed its concerns. Allegedly a new incident took place on 14/12/2012 (see the letter from the Registry of the Court DH-DD(2013)75).

On 1/02/2013 the Russian authorities indicated that they adopted a number of measures (regular dissemination of the decisions of the Committee together with the instructions issued by different authorities indicating that any attempt to forcibly remove from the Russian territory persons in favour of whom the court has indicated an interim measure should be prevented. The dissemination of the decision adopted by the Committee in December 2012 was in addition accompanied by the up-dated list of persons in respect of whom the Court has indicated an interim measure (DH-DD(2013)93). The Russian authorities subsequently clarified that this last dissemination took place on 25/12/2012.

The Committee invited the Russian authorities to clarify the relevance of the measures already taken in circumstances similar to those described in the Iskandarov and Abdulkhakov judgments. The Committee reiterated its call upon the Russian authorities to adopt other special protective measures in respect of the applicants and a set of measures to ensure rapid and effective investigations into disappearances and forced transfers. This Committee’s invitation, as well as its concerns about the alleged repeated similar incidents, were transmitted by the Chairman of the Committee of Ministers to the Russian Minister of Foreign Affairs in a letter of 05/04/2013 (DH-DD(2013)394). The Committee will return to these questions on its 1179th meeting (September 2013) (DH).

On 8/03/2013 the applicant’s representative in the Yuldashev case informed the Committee about an alleged attempt to abduct the applicant (DH-DD(2013)259). Shortly after, the Russian authorities provided information on the measures taken in response to these allegations (DH-DD(2013)339).

As regards the other general measures required by this group of cases, the Russian authorities have already provided detailed information on the measures adopted and planned (for more details see DH-DD(2012)152 and DH-DD(2012)755). On 5/04/2013, the Ministry of Justice published on its web site the draft law aimed at amending the Code of Criminal procedure with regard to extradition following the judgments of the European Court. Information on the progress of this draft law is awaited.

Application

Case

Judgment of

Final on

38411/02

GARABAYEV (list of cases)

07/06/2007

30/01/2008

1172nd meeting – Notes

The Committee had previously decided to resume consideration of all questions relating to the execution of this group of cases at its 1179th meeting (September 2013) (DH).

Therefore it is suggested that at this meeting the Committee focuses its attention on the situation of Mr Yuldashev who, according to his representative, was a victim of an attempted abduction by unknown persons on 8 March 2013 in Moscow, and on the information presented by the Russian authorities in response to these allegations.

It is recalled that, in its judgment which became final in November 2010, the Court found that the applicant's extradition to Uzbekistan would breach Article 3 of the Convention. As a result, the extradition decision against him was quashed.

It is important to note that the Russian authorities reacted rapidly to the allegations made by the applicant's representative and have taken a number of measures. The authorities indicated that the applicant had been granted temporary asylum. Although no complaint was filed by the applicant or his representative after this incident, a preliminary enquiry was opened. It would be useful if the authorities could inform the Committee of the developments in this enquiry.

Finally, the authorities have indicated that on 21 March 2013 the applicant and his family were accommodated at their request in one of the reception centres of the Federal Migration Service with a view to ensuring their safety (DH-DD(2013)339). The applicant and / or his representative have made no further communication since.

Decisions

The Deputies

1. noted with satisfaction the authorities’ rapid response to the allegations made by the representative of Mr Yuldashev that he was a victim of an attempted abduction by unknown persons on 8 March 2013 in Moscow, as well as the measures taken to ensure the safety of the applicant and his family;

2. noted in this respect that no other communication has been received from the applicant or his representative since;

3. invited the Russian authorities to keep the Committee informed of the developments with regard to the preliminary enquiry;

4. recalled that the Committee will resume consideration of all the questions relating to the execution of this group of cases at its 1179th meeting (September 2013) (DH) however having agreed, in the event that a new, similar incident is brought to the Committee’s attention, to return to this issue at their first meeting following notification of such an incident.

RUSSIAN FEDERATION

Application: 4916/07

Judgment final on: 11/04/2011

ALEKSEYEV v. the Russian Federation

Enhanced procedure: complex problem

Reference texts:

Communication from the Russian Federation (13/10/2011) DH-DD(2011)842

Communication from the Russian Federation (24/08/2012) DH-DD(2012)754

Communication from the Russian Federation (25/01/2013) DH-DD(2013)67

Communication from NGOs (30/08/2012) DH-DD(2012)790

Communication from a NGO (05/09/2012) DH-DD(2012)835

Communication from NGOs (13/09/2012) DH-DD(2012)852

Communication from a NGO (ICJ) (15/02/2013) DH-DD(2013)193

Communication from a NGO (ILGA-Europe) (15/02/2013) DH-DD(2013)194

Communication from a NGO (NWAC and GayRussia.ru Project) (20/02/2013) DH-DD(2013)229

Communication from a NGO (Family and Demography Foundation LOC) (02/04/13) DH-DD(2013)418

Decision adopted at the 1164th meeting (March 2013)

Case description: Disproportionate interference with the applicant's freedom of assembly due to the repeated bans, over a period of three years (2006, 2007 and 2008), on the holding of gay-rights marches and pickets imposed by Moscow authorities on account of their failure to adequately assess the risk to the safety of the participants and public order and base their decision on an acceptable assessment of relevant facts (violation of Article 11); lack of an effective remedy in this respect on account of the absence of any legally binding time-frame for the authorities to give their final decision before the planned date of the march or the picketing (violation of Article 13 in conjunction with Article 11); discrimination of the applicant and of other participants in the proposed events on the grounds of their sexual orientation since the authorities failed to justify the bans in a way compatible with the Convention requirements (violation of Article 14 in conjunction with Article 11).

The European Court in its judgment also referred to the fact, inter alia, that the gay pride parade organised by the applicant was to call for promotion of the respect of human rights and tolerance towards sexual minorities, and would have not involved any demonstration of obscenity; its participants had not intended to exhibit nudity, engage in sexually provocative behaviour or criticise public morals or religious views.

Status of execution: Individual measures: Since the delivery of the Court’s judgment, no Gay Pride parade or picket could be organised in Moscow by the applicant. According to the authorities, this situation was due to the applicant’s failure to agree with the Moscow authorities on another day and time for the public events planned, his initial proposals in this respect having been rejected by the authorities for reasons relating to the safety of the participants. The Moscow authorities’ decisions were subsequently confirmed by the domestic courts (for more details, see DH-DD(2012)754 and DH-DD(2013)67).

In his submission to the Committee of Ministers, the applicant gave a different version of the reasons underlying the authorities’ refusals (see DH-DD(2013)229).

General measures: In response to the Committee’s invitation to present a comprehensive action plan for the execution of this judgment, the Russian authorities have reiterated their position according to which the Russian legislation contains enough guarantees to ensure effective exercise of the freedom of assembly (see DH-DD(2013)67). No information was provided, in response to the Committee’s questions, on the specific reasons underlying the authorities’ refusals of the events similar to those described in the judgment. As regards the domestic remedy, the authorities provided further examples of the domestic courts’ case-law demonstrating, according to them, the effectiveness of the existing remedy. Finally, they referred to a number of awareness raising and training activities.

In their submissions to the Committee, NGOs presented their analysis as to the reasons underlying the authorities’ refusals (see in particular DH-DD(2013)194).

On 14/02/2013 the Constitutional Court issued its decision relating to the amendments made to the Assemblies Act in 2012. As regards the existing remedy, the Constitutional Court indicated that domestic judges should decide on cases regarding the lawfulness of the authorities’ refusal before the planned date of the public event. The Constitutional Court also indicated that its position on the existing remedy does not dispense the legislator from the obligation to amend the existing time-limits for the consideration of such cases.

Finally, on 25/03/2013 the President of the Russian Federation lodged with the Parliament a draft Code on Administrative Justice containing amendments of the time-limits within which the domestic courts should consider disputes relating to the organisation of public events.

Application

Case

Judgment of

Final on

4916/07

ALEKSEYEV

21/10/2010

11/04/2011

1172nd meeting – Notes

At its last meeting, the Committee decided to focus its examination on the most urgent issues which affected the proper execution of the present judgment, i.e. the regional laws prohibiting the so-called propaganda of homosexuality among minors and a similar draft federal law presently pending before Parliament.

The present notes contain the analysis of other information previously provided by the Russian authorities (DH-DD(2013)67) and in particular of the reasons underlying the authorities’ repetitive refusals of public events similar to those described in the judgment.

As regards individual measures

The situation in Moscow does not seem to have changed considerably since the delivery of the Court’s judgment. The Moscow authorities continue to rely on the security considerations. They claim that the negative reaction of the majority of the population creates a risk of massive counter-demonstrations and public disorder and that consequently they are not in a position to ensure the safety of the participants. All the decisions challenged by the applicant were upheld by the domestic courts at several levels of jurisdiction. The Secretariat’s examination of the relevant decisions and judgments disclose nothing in their reasoning which would allow concluding that they were based on a thorough and objective assessment of the situation, as required by the Court’s judgment.

While refusing the applicant’s notices, the Moscow authorities made no alternative proposals, allegedly on the grounds that the applicant failed to indicate his intention to discuss such proposals. According to the applicant, even when he clearly stated such intention, still no alternatives were offered to him and he was blamed for the authorities’ failure to cooperate (DH-DD(2013)229).

This situation raises a number of important questions which should be addressed under general measures.

As regards general measures

    Summary of the procedure for the organization of a public event

According to the Assemblies Act, as clarified by the Constitutional Court in 2009 and in February 2013, the organiser of a public event should inform the authorities about it not earlier than fifteen and not later than ten days before the event. The authorities cannot prohibit a public event5, they can only offer to the organiser a well-motivated alternative corresponding to the social and political objectives of the event. The organiser should then reach an agreement with the authorities, failing which the event cannot take place. If no agreement is reached, the organiser can appeal to courts which should issue a judgment as soon as possible and in any event before the planned date of the event.

    The implementation of this procedure in practice regarding public events similar to those at issue in the judgment

The analysis of the overall situation demonstrates the important differences in the implementation of the Assemblies Act by the authorities and by the domestic courts in different regions despite the clarifications given by the Constitutional Court. Even though it appears that some public events similar to those described in the judgment could effectively take place6, the number of the refusals to grant authorisation for the similar events remains high.

In some regions, the situation is similar to that existing in Moscow, i.e. the authorities excessively rely on security considerations and on the majority’s negative views, and fail to make alternative proposals to the organisers7. In some regions, the authorities and the domestic courts openly rely on the regional laws prohibiting the so-called propaganda of homosexuality8. There are also examples in which the authorities refuse to allow public events because of the need to preserve the normal and smooth circulation of traffic and people9. Even when the authorities propose another location for the planned event this proposal is withdrawn after it has been accepted by the organisers and shortly before the event planned, thus making meaningless any attempt to challenge this decision10. It should however be noted that in a number of cases, the authorities’ refusals were found to be unlawful by the domestic courts. But these judgments were often issued after the planned date of the event11.

    Analysis by the Venice Commission of the Russian Assemblies Act

An explanation of this situation could be found in the Venice Commission Opinions. In its Opinions, the Venice Commission criticised the authorities’ broad discretion to restrict assemblies and lack of clarity of the notification-agreement procedure. The Venice Commission recommended that the presumption in favour of holding public assemblies and the principles of proportionality and of non-discrimination be expressly reflected in the Assemblies Act12. It further advocated that the power of the executive authorities to alter the format of a public event should be expressly limited to cases where there are compelling reasons to do so and that the grounds for restrictions of assemblies should be narrowed13.

Conclusion

At its 1150th meeting, the Committee already invited the Russian authorities to present a comprehensive action plan for the execution of the present judgment. In view of the above, it appears crucial that such an action plan is drawn up and that it addresses the issues listed below.

As regards the security risk which seems to remain one of the main grounds for the refusals, additional training and awareness raising measures are necessary, in particular for the authorities responsible for the assessment of such a risk.

As regards the grounds of the authorities’ refusals, their analysis raises an issue of the quality of the legal and regulatory framework governing the procedure for the organisation of the public events. The persistent important divergences in the local authorities’ practice, which moreover were often validated by the domestic courts at several levels of jurisdiction, raise the issue of the possible revision of the Assemblies Act. Such a revision could provide an opportunity to expressly reflect the clarifications given by the Constitutional Court in the law. In this context, the Russian authorities’ attention is drawn to the Venice Commission Opinions.

As regards the domestic remedy, it should be noted that this issue is addressed in the draft Code of Administrative Justice. It would be useful to receive more information in this respect. However, in order for the judicial control to be effective, it is important that the domestic courts examine not only the lawfulness of the authorities’ decisions but also their proportionality, which does not seem to be clearly reflected in the law. Pending the adoption of the reform aimed at the clarification of the Assemblies Act, the authorities may envisage other possibilities, through the intervention of the Supreme Court or training seminars, to ensure the coherence of the domestic judicial practice.

Decisions

The Deputies

1. noted with concern the persistent refusals by the competent authorities of Moscow to grant authorisation for the public events planned by the applicant, thus allowing the situation criticised by the Court in its judgment to persist;

2. noted with regard to the general measures that a number of training and awareness-raising activities were organised for the local authorities and that in some regions public events similar to those described in the judgment have taken place;

3. regretted however that despite the training and awareness-raising activities, the number of the refusals to grant authorisation for the similar events remains high, and noted in this respect the significant divergences in the implementation of the Assemblies Act by the competent authorities and the courts, notwithstanding the clarifications given by the Constitutional Court;

4. therefore strongly reiterated their invitation to the Russian authorities to present a comprehensive action plan for the execution of the present judgment, which should, in particular, describe the measures aiming at:

    - ensuring proper assessment of the security risk by the competent authorities, notably through training and awareness raising activities of the competent administrative and judicial authorities;

    - clarifying and harmonising the implementation of the Assemblies Act, notably through legislative action;

    - ensuring coherence of the domestic judicial practice regarding disputes concerning the organisation of public events;

5. strongly encouraged the Russian authorities, in the framework of the adoption of such measures, to take into account the Opinions of the Venice Commission on the Russian Assemblies Act;

6. noted moreover with interest that the draft Code on Administrative Justice pending before the Parliament contains special provisions to ensure that disputes relating to the organisation of public events are resolved by the domestic courts before the date of the planned events and invited the Russian authorities to provide further information in this respect.

SERBIA

Application: 31925/08

Judgment final on: 24/09/2012

GRUDIĆ v. Serbia

Enhanced procedure: Complex problem

Reference texts:

Action plan (10/01/2013) DH-DD(2013)50

Communication from Serbia (11/01/2013) DH-DD(2013)58

Communication from Serbia (08/04/2013) DH-DD(2013)397

Letter from the Registry (20/02/2013) DH-DD(2013)177

Decision adopted at the 1164th meeting (March 2013)

Case description: The case concerns a violation of the applicants’ right to peaceful enjoyment of their possessions on account of the fact that the payment of their pensions earned in Kosovo* was suspended by the Serbian Pensions and Disability Insurance Fund (SPDIF) for more than a decade in breach of the relevant domestic law (violation of Article 1 of Protocol No. 1).

In view of the large number of potential applicants, the European Court indicated under Article 46 that the Serbian authorities had to take all appropriate measures to ensure that the relevant laws were implemented in order to secure payment of the pensions and arrears in question within six months from the date on which the judgment became final (i.e. until 24 March 2013) (§99 and §3(d) of the operative part of the judgment). The European Court also noted that certain reasonable and speedy factual and/or administrative verification procedures might be necessary in this regard.

Status of execution: Individual measures: The European Court awarded the applicants just satisfaction in respect of non-pecuniary damage suffered. It also indicated that the Serbian authorities had to pay to the applicants the pecuniary damage sustained, which included their pensions due as of 9 June 1999 and 15 January 2000, respectively, together with statutory interest (§92). On 9 January 2013, the Serbian authorities indicated that the sums in question were paid to the applicants on 24 December 2012. Consequently, no other measures appear to be necessary in respect of the applicants.

General measures: In their action plan of 10 January 2013 the Serbian authorities indicated that a working group was set up in November 2012 in order to determine the measures to be taken concerning the payment of pensions earned in Kosovo*. As a first measure, the authorities issued a public invitation on 20 February 2013, which was published in a number of newspapers in Serbia and in Kosovo*, as well as on the website of SPDIF (www.pio.rs). Given the large number of individuals concerned, a media campaign was also initiated so that all those concerned are informed of the possibility to request the resumption of their pensions. It was indicated in the public invitation that all individuals eligible for resumption of the payment of their pensions earned in Kosovo* could apply either in person or by mail to SPDIF until 20 April 2013. Application forms and other relevant documents were also published on the above-mentioned website with a view to facilitating the application procedure.

The Serbian authorities envisaged to put in place the following procedure as soon as an application is received: Firstly, each application will be verified in order to determine whether the applicant is eligible for resumption of pension payment. Once the verification procedure is completed, a decision will be taken in each case setting out whether or not the applicant is eligible for the resumption of pension payment. Such decisions should be taken until 20 August 2013 at the latest. If and when a positive decision is taken, the payment of pensions will be resumed immediately.

On 19 February 2013, the European Court decided to extend the deadline set to Serbia until 24 September 2013 following a request made by the Serbian authorities. However, the Court “emphasised the exceptional character of the extension granted in the present case, and invited the Government to inform the Court of their progress every three months.”

At its 1164th meeting (March 2013), the Committee of Ministers noted with satisfaction that the Serbian authorities provided in their action plan dated 10 January 2013 a calendar for the measures to be taken for the execution of this judgment and encouraged them to intensify their efforts with a view to taking all the appropriate measures until 24 September 2013 at the latest.

In their communication dated 8 April 2013, the Serbian authorities provided the following information to the Committee: The authorities have received 1,643 applications since the above-mentioned public invitation was published (823 of these applications concerned retirement pensions, 510 disability pensions and 310 family pensions). The authorities examined these applications and observed that the necessary documents were missing in some of them. Therefore, the Ministry of Labour, Employment and Social Policy instructed SPDIF on 29 March 2013 to send letters to the applicants in order to complete the missing information. In addition, in order to accelerate the verification procedure, the Serbian authorities contacted the United Mission in Kosovo* (UNMIK) on two occasions and requested UNMIK to provide the list of persons who currently receive their pensions in Kosovo*. According to the Serbian authorities, this request was made to UNMIK because these pensions were paid from a fund provided by the UN. In this respect, the Serbian authorities indicated that the persons who currently receive their pensions in Kosovo* will not be eligible for resumption of payment of their pensions from SPDIF.

Application

Case

Judgment of

Final on

31925/08

GRUDIĆ

17/04/2012

24/09/2012

1172nd meeting – Notes

The measures taken so far, in particular those relating to the public awareness campaign can be considered as a first step in the right direction in determining the number of pensioners eligible for resumption of their pensions. Given the large number of applications received so far by SPDIF, it appears that the public awareness campaign has been effective.

As far as the verification procedure is concerned, it would be useful if the Serbian authorities could provide updated information to the Committee of Ministers on the number of applications received, including the number of applications with incomplete documentation. It would also be useful if the Serbian authorities could provide information on the number of the decisions given so far, including the number of applications that were accepted and rejected.

Lastly, it appears from the information submitted by the Serbian authorities that the procedure set up in response to the Court’s judgment in this case concerns the resumption of pensions that had been suspended more than a decade ago. However, the Court noted in the present case that the Serbian authorities should not only take the appropriate measures for the resumption of pension payments but they should also secure the payment of arrears (i.e. the pensions that have not been paid between the time of suspension and resumption). The Serbian authorities have not provided any information on this question which should be clarified in order to ensure the full execution of this pilot judgment.

Decisions

The Deputies

1. welcomed the initial steps taken by the Serbian authorities in determining the number of individuals eligible for resumption of payment of their pensions and arrears, in particular the awareness campaign aimed at informing the eligible individuals on this possibility;

2. invited the Serbian authorities to provide information on the number of applications received, including the number of applications with incomplete documentation, and the number of decisions rendered so far, including the breakdown of positive and negative decisions;

3. invited further the Serbian authorities to provide clarifications on the measures aimed at securing the payment of arrears;

4. encouraged the Serbian authorities to take all the appropriate measures aimed at securing resumption of payment of pensions and arrears at issue within the deadline extended by the European Court (i.e. until 24 September 2013);

5. in view of the expiring of the deadline set by the Court, decided to resume consideration of this item at their 1179th meeting (September 2013) (DH).

SLOVENIA

Application: 26828/06

Judgment final on: 26/06/2012

KURIC AND OTHERS v. Slovenia

Enhanced procedure: pilot judgment

Reference texts:

Communication from Slovenia (14/05/2013) DH-DD(2013)564

Communication from Slovenia (05/04/2013) DH-DD(2013)405

Communication from Slovenia (10/10/2012) DH-DD(2012)957

Revised action plan (09/04/2013) DH-DD(2013)406

Action plan (30/01/2013) DH-DD(2013)83

Letter from the Commissioner for Human Rights (29/1/2013) CommDH002(2013)

Communication from a NGO (Peace Institut) (21/05/2013) DH-DD(2013)620

Communication from a NGO (Peace Institut) (29/05/2013) DH-DD(2013)640

Decision adopted at the 1164th meeting (March 2013)

Case description: The case primarily concerns a violation of the applicants’ right to their private and/or family lives in that they had been deprived, automatically and without prior notification, of their status as permanent residents in Slovenia after its declaration of independence (violation of Article 8). The “erasure” of the resident status concerned an entire category of former citizens of Socialist Federal Republic of Yugoslavia (the “SFRY”) who had permanent residence in Slovenia and the citizenship of one of the other SFRY republics at the time of Slovenia’s declaration of independence.

The case also concerns the lack of an effective remedy on account of the applicants’ complaints under Article 8 (violation of Article 13 in conjunction with Article 8).

Lastly, the case concerns the discrimination against the applicants whose situation was significantly altered after the declaration of independence of Slovenia when compared with that of aliens who did not originate from other SFRY republics (violation of Article 14 in conjunction with Article 8).

In this case, the Court applied the pilot-judgment procedure and requested the respondent State to introduce within one year after the judgment became final (i.e. by 26/06/2013), an ad hoc domestic compensation scheme for the “erased” who are still denied compensation for the infringement of their fundamental rights. At the same time, the Court decided to adjourn for one year the examination of all similar applications pending the adoption of the remedial measures at issue.

Status of execution: Individual measures: On 12 September 2012, the Slovenian authorities paid to the applicants the just satisfaction awarded in respect of non-pecuniary damages. As far as the question of compensation for pecuniary damages is concerned, the Court considered that this question must be reserved having due regard to any agreement which might be reached between the Government and the applicants and in light of the individual or general measures that may be taken by the authorities in the execution of the present judgment. The Court also invited the Government and the applicants to submit, within three months, their written observations on the matter.

Following the delivery of the Court’s judgment, the Slovenian authorities started friendly settlement negotiations with the applicants for the settlement of their pecuniary damages. However, the authorities requested the extension of the deadline set by the Court on two occasions because it was not possible to conclude these negotiations. The last deadline set by the Court on 7 March 2013 will expire on 26 June 2013. It is noted in this respect that the Slovenian Government appointed a mediator in March 2013 who was given the task of facilitating these negotiations.

On 14 May 2013, the Slovenian authorities informed that the applicants had opposed the above-mentioned friendly settlement procedure. The authorities are currently working on a second offer for compensation and are planning to invite the applicants to another round of friendly settlement negotiations. In case these negotiations fail, the authorities will inform the Court of the content of the offers made to the applicants before the above-mentioned deadline (i.e. 26 June 2013).

General measures: In their action plan dated 30 January 2013, the Slovenian authorities indicated that a compensation scheme will be introduced with the aim of awarding compensation to the “erased” on account of the damages sustained as a result of their loss of permanent residence. According to the compensation scheme the “erased” persons will be offered lump sum compensation. However, if the person concerned rejects the lump sum compensation, the authorities will seek to reach a friendly settlement on the basis of the circumstances of each case. If a friendly settlement is not reached, the person concerned will be entitled to claim damages before domestic courts.

In response to the questions raised by the Committee of Ministers in its decision adopted at the 1164th meeting (March 2013), the Slovenian authorities provided the following information in their updated action plan dated 9 April 2013 and additional information dated 14 May 2013:

1) As regards the legal framework that will govern the compensation scheme, a special law (“Act on Restitution of Damage to Persons who were erased from the Register of Permanent Residents”) was prepared and presented to the Minister of Interior on 25 April 2013. The civil society will be invited to make comments on the draft law, which will then be put online (according to the relevant legislation, a draft law should be published on the internet and be made available to the public from 30 to 60 days). The draft law should be approved by the Government following the public debate. The draft law will define the amount of compensation to be awarded as well as the procedures and conditions of payment. The legislative process is expected to be completed until December 2013. However, the Slovenian authorities indicated that the law adopted in Parliament might be subject to a suspension veto or referendum procedure. These procedures might delay the introduction of the compensation scheme beyond December 2013.
2) As regards the issue how the beneficiaries will be determined, the authorities indicated that the beneficiaries of the compensation scheme will be the “erased” persons who, after being erased from the Register of Permanent Residents, have applied and obtained either a permanent residence permit or Slovenian citizenship.
3) As regards the steps taken to determine the amount of lump sum compensation, the authorities indicated that the details of this issue were still under consideration. However, they reiterated that the “erased” persons will be offered a lump sum compensation for both pecuniary and non-pecuniary damages they sustained.
4) As regards the method of calculation of compensation, the authorities did not provide any information. However, the authorities indicated that the duration of the erasure from the Register of Permanent Residents will be taken into consideration in the calculation of compensation (i.e. between the date of erasure and the date of obtaining a permanent residence permit or citizenship).

The authorities indicated that the beneficiaries of the compensation scheme would be in addition entitled to a range of other benefits in medical, social, education and other sectors.

As regards the deadline fixed by the Court for the setting up of the compensation scheme, on 5 April 2013 the Slovenian authorities requested its extension until 26 June 2014. On 9 April 2013, however, the Court indicated that it was not disposed to grant the extension requested. On 22 April 2013, the Slovenian authorities nevertheless requested the Court to reconsider its position in this respect. On 14 May 2013, the Court decided not to grant this request.

Application

Case

Judgment of

Final on

26828/06

KURIC AND OTHERS

26/06/2012

Grand Chamber

1172nd meeting – Notes

Information on the structural nature of the problem: The European Court noted that the number of former SFRY citizens who had lost their permanent residence status in Slovenia on the date of its declaration of independence was 18,305. Approximately 2,400 of these persons had been refused citizenship. These persons therefore became to be known as “erased” (§32). As a result of the “erasure” of their permanent residence status, the “erased” became aliens or stateless persons illegally residing in Slovenia. It appears that, as of June 2011, approximately 13,000 of the “erased” have been still waiting for their residence status to be settled (§322). Given that the “erasure” affected an entire category of persons, the European Court found that “the facts of this case disclosed the existence, within the Slovenian legal order, of a shortcoming as a consequence of which the whole category of the “erased” are still denied compensation for the infringement of their fundamental rights” (§412).

Although only a few similar applications are currently pending before the European Court, it pointed out that the potential for inflow of future cases was substantial (§414).

Information on the Legal Status Act 2010: The amended Legal Status Act, which entered into force on 24 July 2010, provides that the “erased” could request to obtain permanent residence permits. Such requests can be made until 24 July 2013. The Government have set up an intergovernmental commission in order to monitor the implementation of the amended Legal Status Act and to tackle the problem of the “erased” (§§404, 410). The European Court considered that it would be premature at this stage to examine whether this law and other measures taken so far regulate the residence status of the “erased” satisfactorily (§411).

Assessment of the updated action plan: The Slovenian authorities provided clarifications in their updated action plan and additional information to the questions raised by the Committee at the 1164th meeting. However, it appears that two issues still remain outstanding, namely:

    - what steps have been taken to determine the amount of lump sum compensation to be awarded to “erased” persons and

    - what will be the method of calculation of this compensation.

In addition, according to the calendar provided by the Slovenian authorities, the legislative process is expected to be completed until December 2013. Even assuming that the legislative process is completed until this date, there is a possibility that the draft law is subject to a suspension veto or referendum procedure following its adoption by the Slovenian Parliament. This might further delay the introduction of the compensation scheme. On 5 and 22 April 2013, the Slovenian authorities requested the extension of the deadline set in the pilot judgment. However, the Court indicated that it was not disposed to grant the extension requested. Therefore, it is clear that the Slovenian authorities will not be able to meet the deadline set by the Court and to introduce the compensation scheme until 26 June 2013 unless the legislative calendar is changed. The delay in the introduction of the compensation scheme within the deadline is therefore a matter of great concern.

Furthermore, it appears from the information provided that the beneficiaries of the compensation scheme will be the “erased” persons who, after being erased from the Register of Permanent Residents, have applied and obtained either a permanent residence permit or Slovenian citizenship. It is recalled in this respect that the Court required that the “erased” persons manifest in any manner their wish to reside in Slovenia, that is, to take any proper legal steps in order to regularise their residence status (§292). It therefore remains to be clarified whether an “erased” person who applied for a residence permit or Slovenian citizenship but was rejected would be entitled to obtain compensation under the scheme.

Lastly, the Court indicated that approximately 13,000 of the “erased” had been still waiting for their residence status to be settled (§322) and that they would have until 24 July 2013 to apply for permanent residence permits in accordance with the Legal Status Act 2010. In order to assess the scope of the future compensation scheme, information would be helpful on the number of applications for residence permits lodged by the “erased” as well the number of residence permits granted and denied so far. Information would be also helpful on the number of applications for residence permits lodged by the “erased” currently pending before the Slovenian authorities.

As regards the individual measures, it appears that the friendly settlement negotiations are still ongoing. It is not clear however whether these negotiations will be concluded until 26 June 2013 when the new deadline set by the Court will expire. Clarifications are therefore awaited in this respect.

Decisions

The Deputies

1. noted that, in response to the questions raised by the Committee at its 1164th meeting (March 2013) (DH), the Slovenian authorities provided the following information:

    - a special law setting up a compensation scheme for the “erased” should be adopted until December 2013,

    - the beneficiaries of the compensation scheme will be the “erased” persons who obtained a residence permit or Slovenian citizenship,

    - the compensation scheme will cover both pecuniary and non-pecuniary damages sustained by “erased” persons;

2. noted however with concern that the compensation scheme will not be introduced before the deadline set by the Court (i.e. 26 June 2013);

3. urged therefore the Slovenian authorities to intensify their efforts with a view to accelerating the adoption of the special law as a matter of priority and to adopt it without any delay;

4. welcomed the presence of the Minister of the Interior of the Republic of Slovenia and took note with interest of the explanations given during the meeting regarding the complexity of the case and the progress made, and in particular of the information provided on the following issues:

    - steps taken to determine the amount and method of calculation of the compensation to be awarded to “erased” persons,

    - statistical information on the number of applications for residence permits lodged by the “erased”, including the number of residence permit granted and rejected so far as well as the number of such applications that are currently being examined,

    - information on the on-going friendly settlement negotiations with the applicants;

5. instructed the Secretariat to provide the Committee with an assessment of these issues;

6. invited further the Slovenian authorities to provide clarifications on the following issues:

    - whether an “erased” person who applied for a residence permit or Slovenian citizenship but was rejected would be entitled to obtain compensation under the compensation scheme,

    - information on the outcome of the friendly settlement negotiations with the applicants;

7. decided to resume consideration of this case at their 1179th meeting (September 2013) (DH) on the basis of the information to be provided on the legislative process as well as on the outstanding questions.

TURKEY

Application 25781/94

Judgment final on 10/05/2001

Cyprus v. Turkey

Enhanced procedure: interstate case

Reference texts:

Interim resolutions ResDH(2005)44, CM/ResDH(2007)25

Information document prepared by the Secretariat

- on the issue of property rights of displaced persons CM/Inf/DH(2010)21, CM/Inf/DH(2010)36

- on the issue of property rights of persons living in the northern part of Cyprus CM/Inf/DH(2009)39, CM/Inf/DH(2013)23)

- on the follow-up by the Committee and the classification of the cases CM/Inf/DH(2011)32

- Synthesis of the information submitted on the issue of property rights of persons living in the northern part of Cyprus CM/Inf/DH(2012)37

Records from the 1086th meeting (June 2010) (confidential)

Records from the 1128th meeting (December 2011) (confidential)

Records from the 1136th meeting (March 2012) (confidential)

Records of the 1164th meeting (March 2013)

Invitation of the CMP at one of the forthcoming meetings (13/03/2013) DH-DD(2013)324 (restricted)

Time-table for the submission of questions by delegations to the CMP DH-DD(2013)284

Information submitted by the Turkish authorities

Property rights of persons living in the northern part of Cyprus, missing persons (24/05/2012)
DH-DD(2012)523

Property rights of persons living in the northern part of Cyprus(24/10/2012) DH-DD(2012)997

Property rights (04/12/2012) DH-DD(2012)1136

Intervention from Turkey at the 1157th meeting DH-DD(2012)1147

Booklet of information concerning the rights of enclaved persons (27/02/13) DH-DD(2013)222

Property rights of enclaved persons (27/02/2013) DH-DD(2013)220

Property rights of enclaved persons (11/04/2013) DH-DD(2013)426

Property rights of enclaved persons (06/05/2013) DH-DD(2013)530

Property rights of Greek Cypriots (27/05/2013) DH-DD(2013)604

Property rights of enclaved persons) (31/05/2013) DH-DD(2013)626E

Information submitted by the Cypriot authorities

Property rights of persons living in the northern part of Cyprus (25/05/2010) DH-DD(2010)275

Property rights of displaced persons and of persons living in the northern part of Cyprus (25/11/2011)
DH-DD(2011)1075

Property rights of displaced persons (29/11/2011) (confidential) DH-DD(2011)1079

Property rights of displaced persons and of persons living in the northern part of Cyprus (01/03/2012)
DH-DD(2012)259

Property rights of persons living in the northern part of Cyprus DH-DD(2012)905

Enclaved persons (26/11/12) DH-DD(2012)1107

Intervention from Cyprus at the 1157th meeting (The Property Rights Of Enclaved Greek Cypriots And Their Heirs) (restricted )DH-DD(2012)1148

Property and inheritance rights of enclaved Greek Cypriots and their heirs (26/03/2013) DH-DD(2013)326

Property rights of enclaved persons (28/05/2013) DH-DD(2013)617E

List of the questions raised during the discussion of the 1157th meeting DH-DD(2012)1161

Communication from Cyprus (04/02/2013) Additional questions DH-DD(2013)124

Decision adopted at the 1164th meeting (March 2013)

Case description: Fourteen violations in relation to the situation in the northern part of Cyprus since the military intervention by Turkey in July and August 1974 concerning:

- home and immovable property of displaced Greek Cypriots (violation of Article 8 and 13 and Article 1 of Protocol No. 1)

- living conditions of Greek Cypriots in Karpas region of the northern part of Cyprus (violation of Articles 3, 8, 9, 10 and 13 and Articles 1 and 2 of Protocol No. 1)

- Greek-Cypriot missing persons and their relatives (violation of Articles 2, 3 and 5)

- rights of Turkish Cypriots living in northern part of Cyprus (violation of Article 6).

Status of execution: I. Issues currently examined by the Committee of Ministers

1) Home and immovable property of displaced Greek Cypriots

a) Measures taken by the respondent state and findings of the European Court in this respect

Following the judgment of 22/12/2005 in the Xenides-Arestis case, an "Immovable Property Commission" was set up under "Law No. 67/2005 on the compensation, exchange or restitution of immovable property". In its judgment in application of Article 41 in the Xenides-Arestis case, the Court found that "the new compensation and restitution mechanism, in principle, has taken care of the requirements of the decision of the Court on admissibility of 14 March 2005 and the judgment on the merits of 22 December 2005".

However, the Court also pointed out that "the parties failed to reach an agreement on the issue of just satisfaction where, like in the case of Broniowski against Poland (…) it would have been possible for the Court to address all the relevant issues of the effectiveness of this remedy in detail".

In its inadmissibility decision in the Demopoulos and 7 other cases delivered on 5 March 2010, the Grand Chamber found that Law 67/2005, which set up the Immovable Property Commission in the northern part of Cyprus, "provides an accessible and effective framework of redress in respect of complaints about interference with the property owned by Greek Cypriots" (§127 of that decision).

b) Assessment of the Committee of Ministers

At the June and September 2010 meetings, the Committee examined the question of the consequences of the Grand Chamber's inadmissibility decision in the Demopoulos case.

For more details on the positions expressed in that regard, see the Records of the June 2010 meeting (confidential document CM/Del/Act/DH(2010)1086final) and the information document CM/Inf/DH(2011)32. The Secretariat's assessment of this issue is presented in two information documents, namely CM/Inf/DH(2010)21 and CM/Inf/DH(2010)36.

c) Latest examinations by the Committee of Ministers

At the December 2011 meeting, the delegation of Cyprus requested the Committee of Ministers to suspend its examination of this question until the Court has pronounced itself on their recent application under Article 41 of the Convention. The Committee took note of this request and decided to continue their discussion on this question at their March 2012 meeting (DH). During the March 2012 meeting, the Deputies recalled that the Court had been seised of a request under Article 41 of the Convention in this case and decided to resume consideration of this question at their June 2012 meeting (DH). In June, December 2012 and March 2013, they noted that there have been no new developments on this issue.

2) Property rights of Greek Cypriots residing in the northern part of Cyprus

For more details see the notes prepared for the 1157th meeting (December 2012).

Latest examinations by the Committee of Ministers

At the 1157th meeting (December 2012) (DH), the Committee took note of the synthesis of the information received, prepared by the Secretariat (CM/Inf/DH(2012)37), and urged the two delegations concerned to provide, in due time for their 1164th meeting (March 2013), all relevant further information concerning property rights of enclaved persons, including answers in writing to the questions raised during the debate. These questions have been listed in the document DH-DD(2012)1161, circulated to all delegations on 20/12/2012. The Committee also invited the Turkish delegation to provide in particular the information booklet concerning property rights of enclaved persons and their heirs, to which it made reference during the meeting. It decided to resume consideration of these questions at its 1172nd meeting (June 2013) in the light of a synthesis and an updated assessment by the Secretariat. On 27/03/2013, the Turkish authorities provided responses to the questions raised by delegations, including to two additional questions submitted by the delegation of Cyprus (see DH-DD(2013)124, as well as the above mentioned information booklet. On 25/03/2013, the Cypriot authorities submitted comments on the latest information from the Turkish authorities. The synthesis of the information submitted and the updated assessment by the Secretariat are presented in the information document CM/Inf/DH(2013)23.

3) Greek Cypriot missing persons and their relatives

For more details see the notes prepared for the 1164th meeting (March 2013).

Latest examination by the Committee of Ministers

At their March 2013 meeting (DH), the Deputies notably recalled the necessity to adopt a proactive approach as regards effective investigations into the fate of persons who are still missing and called on Turkey to continue providing the Committee on Missing Persons in Cyprus (CMP) with all relevant information and access to all relevant places. In this respect, the Deputies welcomed the permissions granted so far and the assurance of the Turkish authorities that they will continue granting the CMP access to other relevant military zones.

As regards identified persons, while underlining once again the urgency to effectively investigate the deaths of these persons, the Deputies welcomed the additional concrete investigative steps taken by the Turkish authorities and invited them to regularly inform the Committee of the progress made in this respect as well as of any results achieved. On this last point, the Deputies also underlined the crucial importance of investigators having access to forensic data and evidence kept by the CMP and in addition called upon the Turkish authorities to continue granting them access to the relevant Turkish archives and reports. The Deputies agreed in addition to invite the CMP for an exchange of views at one of their forthcoming meetings (DH) and decided to resume consideration of the issue of missing persons at the latest at their 1186th meeting (December 2013) (DH). The members of the CMP have expressed their availability for an exchange of views at that meeting.

II. Issues whose examination has been closed:

Following the measures adopted by the authorities of the respondent state with a view to complying with the present judgment, the Committee of Ministers decided to close the examination of the following issues:

1) living conditions of the Greek Cypriots living in northern Cyprus, as regards secondary education, the censorship of schoolbooks and the freedom of religion,

2) rights of Turkish Cypriots living in northern part of Cyprus (competence of the military courts).

For more details, see Interim resolutions ResDH(2005)44 and CM/ResDH(2007)25.

Application

Case

Judgment of

Final on

25781/94

CYPRUS AGAINST TURKEY

10/05/2001

Grand Chamber

1172nd meeting – Notes:

-

Decisions

The Deputies

Concerning questions regarding the property rights of displaced persons

1. decided to resume consideration of these questions at their DH meeting in March 2014, in the light of all relevant facts;

Concerning questions regarding the property rights of enclaved persons

2. took note of the assessment of these questions presented in Information document CM/Inf/DH(2013)23, prepared by the Secretariat, and decided to declassify this document;

3. invited interested delegations to provide the Secretariat by 30 June 2013 with the precise questions they consider that still need to be clarified in respect of the three violations found by the Court as regards the property rights of the enclaved Greek Cypriots and their heirs;

4. decided to resume consideration of the matter at the latest at their DH meeting in June 2014, in the light of the responses submitted by the Turkish delegation to these questions;

Concerning questions regarding missing persons

5. noted that the the Committee on Missing Persons in Cyprus (CMP) has accepted the invitation for an exchange of views, sent by the Committee and that it has been agreed that this exchange of views would take place at the 1186th meeting (December 2013) (DH);

6. regarding the question of payment of the just satisfaction in the Varnava case, once again underlined the unconditional obligation to pay the just satisfaction awarded by the Court in this case, firmly urged the Turkish authorities to pay the amounts due, including the default interest, without further delay;

7. decided to resume consideration of the question of payment of the just satisfaction in the Varnava case at their 1179th meeting (September 2013) (DH) and instructed the Secretariat in the absence of confirmation of payment of the just satisfaction by that date to prepare a draft interim resolution, which will be circulated in the revised draft order of business.

TURKEY

Application

Judgment final on

VARNAVA AND OTHERS v. Turkey

Enhanced procedure: complex problem

Reference texts:

Last public notes and decision adopted (1086th meeting, page 34)

Communication from the applicants’ representative (25/10/2012) DH-DD(2012)1012

Communication from the applicants’ representative (22/02/2013) DH-DD(2013)201

Communication from the applicants' representatives (Varnava and six other cases) (29/05/2013)
DH-DD(2013)623E

Decision adopted at the 1164th meeting (March 2013)

Case description: Failure to conduct effective investigations into the fate of nine Greek Cypriots who had disappeared during the military operations carried out by Turkey in Cyprus in 1974 (violation of Article 2); inhuman treatment of the relatives of the missing persons due to the authorities' silence in face of their real concerns (violation of Article 3); and failure to conduct effective investigations into the whereabouts of two of the nine missing men, in respect of whom there has been an arguable claim that they had been detained at the time of their disappearance (violation of Article 5).

Status of execution: The individual and general measures required in this case are linked to the measures examined within the framework of the Cyprus against Turkey case.

As regards the question of the payment of the just satisfaction, at their 1164th meeting (March 2013) (DH), the Deputies “underlined the unconditional obligation to pay the just satisfaction awarded by the Court in this case, urged the Turkish authorities to pay it without further delay and decided to resume consideration of [this issue] at their 1172nd meeting (June 2013) (DH)”. At the same meeting, the Deputies also “recalled with insistence their request to the Turkish authorities to provide […] information on the individual measures in the cases at issue in this judgment and, in this context, noted with interest the information submitted with regard to the case of Mr. Hadjipanteli”. They decided to resume consideration of the question of missing persons at the latest at their 1186th meeting (December 2013) (DH).

Application

Case

Judgment of

Final on

16064/90+

VARNAVA AND OTHERS

18/09/2009

Grand Chamber

1172nd meeting – Notes

Decisions

The Deputies

Concerning questions regarding the property rights of displaced persons

1. decided to resume consideration of these questions at their DH meeting in March 2014, in the light of all relevant facts;

Concerning questions regarding the property rights of enclaved persons

2. took note of the assessment of these questions presented in Information document CM/Inf/DH(2013)23, prepared by the Secretariat, and decided to declassify this document;

3. invited interested delegations to provide the Secretariat by 30 June 2013 with the precise questions they consider that still need to be clarified in respect of the three violations found by the Court as regards the property rights of the enclaved Greek Cypriots and their heirs;

4. decided to resume consideration of the matter at the latest at their DH meeting in June 2014, in the light of the responses submitted by the Turkish delegation to these questions;

Concerning questions regarding missing persons

5. noted that the the Committee on Missing Persons in Cyprus (CMP) has accepted the invitation for an exchange of views, sent by the Committee and that it has been agreed that this exchange of views would take place at the 1186th meeting (December 2013) (DH);

6. regarding the question of payment of the just satisfaction in the Varnava case, once again underlined the unconditional obligation to pay the just satisfaction awarded by the Court in this case, firmly urged the Turkish authorities to pay the amounts due, including the default interest, without further delay;

7. decided to resume consideration of the question of payment of the just satisfaction in the Varnava case at their 1179th meeting (September 2013) (DH) and instructed the Secretariat in the absence of confirmation of payment of the just satisfaction by that date to prepare a draft interim resolution, which will be circulated in the revised draft order of business.

TURKEY

Application: 39324/98

Judgment final on: 28/04/2003

DEMIREL GROUP v. Turkey

Enhanced procedure: structural and complex problem

Reference texts:

Action plan (01/07/2011) DH-DD(2011)578

Action plan (09/04/2013) DH-DD(2013)513

Decision adopted at the 1100th meeting (December 2010) (p. 435)

Case description: Case description: These cases primarily concern violations of Article 5 §§ 3, 4 and 5 of the Convention on account of:

1) Excessive length of detention on remand and the absence of sufficient reasons given by domestic courts in their decisions extending such detention: the Court found that the domestic courts’ decisions did not provide sufficient information as to the reasons justifying the applicants’ being kept in detention because domestic courts used identical and stereotyped wording in their reasoning. In a number of cases, the Court also found that domestic courts did not consider to apply preventive measures which are provided by the Code of Criminal Procedure (“CCP”) other than detention on remand, such as prohibition to leave the country or to release on bail (see the case of Duyum, §68);
2) Absence of a domestic remedy whereby the applicants could challenge the lawfulness of their detention on remand: the Court found that Turkish law did not provide a domestic remedy which was genuinely adversarial or which could offer reasonable prospect of success when challenging the lawfulness of detention on remand.
3) Absence of a right to compensation for unlawful detention on remand.

Structural nature of the problem highlighted by the Court: In the case of Cahit Demirel (Application No. 18623/03, judgment final on 7/10/2009), the Court considered that the violations in these cases “originated in widespread and systemic problems arising out of the malfunctioning of the Turkish criminal justice system and the state of the Turkish legislation, respectively” (§46). The Court underlined that “general measures at national level must be taken in order to ensure the effective protection of the right to liberty and security in accordance with the guarantees laid down in Article 5 §§ 3 and 4 of the Convention” (§48).

Other violations: The Court found other violations in certain cases in this group: ill-treatment and lack of an effective remedy (violations of Article 3 and 13), the continued detention of an applicant after a release order (violation of Article 5 § 1), excessive length of proceedings before state security courts and lack of independence and impartiality of these courts (violation of Article 6) and failure to communicate the prosecutors’ opinion to applicants (violation of Article 6).

Status of execution: Individual measures: 183 of 276 applicants in this group of cases have been released. The rest of the applicants have been convicted following the termination of proceedings against them. Consequently, none of the applicants are currently detained on remand.

General measures: It is recalled that at the 1072nd meeting (December 2009) (DH), the Turkish authorities provided information to the Committee on the measures taken with the coming into force of CCP in 2005. These measures aimed at shortening the length of detention on remand and improving reasons given for extension of such detention as well as introducing a right to compensation. The measures can be summarised as follows:

a) Maximum time-limits were set for extending detention on remand: detention on remand can be extended for one year for crimes outside the jurisdiction of assize courts and two years for crimes within the jurisdiction of assize courts. These time-limits can be further extended by six months and three years respectively in exceptional circumstances and if sufficient reasons are given. For certain crimes including terrorism, the latter time limits can be doubled;

b) Review of conditions of detention on remand was introduced. A judge or a court shall review between two consecutive hearings or in any event every 30 days whether conditions for detention exist (article 108 of CCP);

c) Decisions ordering detention on remand or ordering such detention, as well as those denying requests for release must be based on legal and factual grounds (Articles 100 and 101 of CCP);

d) A right to compensation for unlawful detention or unlawful extension of detention on remand was provided under certain conditions (Articles 141 to 144 of CCP).

The Turkish authorities provided the following updated information to the Committee in their action plan of 9 April 2013 (the measures presented below complement the above-mentioned measures):

1) Measures taken with a view to shortening length of detention on remand:

The Turkish authorities indicated that a decrease in the length of detention on remand has been observed since the coming into force of CCP. The Turkish authorities provided statistical information in order to demonstrate this decrease. Accordingly, in 2006 the ratio of prison population was 48.9% detainees to 51.1% convicted persons. As of December 2012, this ratio has decreased significantly in favour of detainees (23.3% detainees and 76.7% convicted persons). Among the detained persons, 91% of them were detained on remand for less than 2 years ago, 5.25% of them between 2-3 years ago and 3.71% of them for more than three years ago.

The scope of application of preventive measures as an alternative to detention on remand was extended with the amendments introduced in CPP in July 2012 when the “Third Reform Package” was adopted by the Turkish Parliament. Accordingly, preventive measures can be applied to all crimes irrespective of any upper limit of sentences foreseen (before the amendments, these measures were applicable to crimes punishable with three years of imprisonment). While 13 310 suspects benefited from preventive measures in the first half of 2012, this number increased to 25,911 (94.6% increase) following the amendments. The Turkish authorities indicated that the increased application of preventive measures as an alternative to detention on remand is expected to result in a drop in the number of persons detained on remand.

2) Measures taken with a view to improving the reasons given in decisions extending detention on remand:

An amendment introduced within the context of the “Third Reform Package” has brought in an additional condition in order to ensure that sufficient reasons are given in decisions extending detention on remand. Accordingly, courts will have to clearly indicate in these decisions the evidence against the suspect which should be based on concrete facts. It is expected that this new legislative amendment will result in a change of practice of giving insufficient or stereotyped reasons.

3) Introduction of an effective remedy to challenge the lawfulness of the detention:

The amendments introduced in CCP within the context of the “Fourth Reform Package” (adopted by the Turkish Parliament on 11 April 2013 and entered into force on 30 April 2013) provide for an adversarial procedure in challenging the lawfulness of detention on remand. According to this new procedure, courts shall decide on extension of detention on remand after hearing the detainee or his/her legal representative and in their presence. In addition, the opinion of the public prosecutor will be transmitted to the detainee or his/her representative in appeal proceedings against a decision rejecting bail. According to the Turkish authorities, this new procedure provides for an adversarial procedure and respect the principle of equality of arms.

4) Additional measures taken for effective exercise of right to compensation

At the outset, the Turkish authorities recalled that in the decision of inadmissibility in the case of Demir against Turkey (Application No. 51770/07) the Court found that the applicant in that case should have made use of the remedy providing for an award of compensation in CCP. It flows from the Court’s decision that the right to compensation can be exercised effectively if a claim for compensation is made after criminal proceedings are terminated and detention on remand is ended either by acquittal or conviction.

The Turkish authorities also noted that the scope of the right to compensation was extended with the amendments introduced within the context of the “Fourth Reform Package”. Firstly, a detainee would be entitled to request compensation if he/she is prevented from exercising his/her right to challenge the lawfulness of detention in adversarial proceedings. Secondly, it will be possible to make a claim for compensation even if the detention period (which might be considered to be excessive) is deducted from the final sentence.

Other violations:

Violations concerning ill-treatment and lack of an effective remedy: The Committee is examining these issues within the context of Batı group of cases (see also Interim Resolution CM/ResDH(2008)69 adopted within the context of Aksoy group of cases).

Violation concerning continued detention after a release order: The Committee is examining this issue within the context of the Hamşioğlu group of cases.

Violations concerning excessive length of proceedings and independence of state security courts: The Committee closed the examination of these issues (see Final Resolutions CM/ResDH(2008)83 in the case of Sertkaya and DH(99)555 in the case of Çıraklar respectively).

Violations concerning failure to communicate the prosecutors’ opinion: The Committee closed the examination of this issue (see Final Resolution CM/ResDH(2011)307 in the case of Göç).

Application

Case

Judgment of

Final on

39324/98

DEMIREL (list of cases)

28/01/03

28/04/2003

1172nd meeting - Notes:

It is noted at the outset that there has been a gradual progress in the execution of these judgments since the coming into force of CCP in 2005, in particular as far as the decrease in the length of detention on remand is concerned (see the statistics provided by the Turkish authorities). The measures adopted within the context of the above-mentioned reform packages are expected to enhance the implementation of the Turkish legislation in compliance with Convention requirements.

Measures taken with a view to shortening length of detention on remand:

The statistics indicate that there is a significant drop in the number of detainees and the length of detention on remand has been shortened in general. This can be noted as a positive development. In addition, the use of preventive measures as an alternative to detention by domestic courts has been increasing, in particular following the adoption of the “Third Reform Package” in July 2012. This is also a positive development in the sense that domestic courts might make use of preventive measures in cases in which detention periods cannot be justified any longer because of passage of time.

However, it appears that Turkish legislation still allows the possibility of extension of time-limits set in CCP up to 10 years in crimes related to terrorism. It is noted that such a period can hardly be considered to be in line with the case-law of the European Court. Given that the majority of violations found by the Court in the present group of cases concern excessive detention periods in proceedings related to terrorism, information is expected as to whether there is also a decrease in the length of detention on remand in such proceedings.

Measures taken with a view to improving the reasons given in decisions extending detention on remand:

The amendment introduced within the context of the “Third Reform Package” aims at preventing domestic courts to give insufficient or stereotyped reasons in their decisions extending detention on remand. It is expected that this new provision will contribute to the alignment of practice of national courts with Convention requirements. However, given that the legislative amendment in question came into force only in July 2012, the impact of this reform, in particular the alignment of the judicial practice with Convention requirements will have to be assessed in the future. It would therefore be useful if the Turkish authorities could provide examples of domestic court practice.

It should be noted in this respect that limiting the detention period by setting strict time limits would not in itself be capable of preventing similar violations. A survey of the recent case-law of the European Court gives the idea that the length of detention on remand exceeding two years is likely to violate Article 5 § 3 of the Convention. However, it has to be underlined that even a short detention period could be considered as a violation if it cannot be convincingly demonstrated that it is justified. Moreover, there are examples of judgments in which very long periods of detention on remand (approximately five years) were not automatically considered as a violation because relevant and sufficient reasons were given (see for example, W. against Switzerland and Chraidi v. Germany). It is therefore extremely important that sufficient and relevant reasons are given for extension of detention on remand irrespective of the time-limits set in the CCP.

Introduction of an effective remedy to challenge lawfulness of the detention:

The reforms adopted within the context of the “Fourth Reform Package” provide a solid legal basis for ensuring that anyone claiming that his/her detention is unlawful will be able to bring his/her claims before a judge or a court in an adversarial procedure in conformity with the principle of equality of arms.

Right to compensation:

As the European Court found in the case of Demir, the right to compensation can effectively be exercised after the termination of criminal proceedings. Therefore, it remains to be clarified whether the right to compensation can also be exercised effectively while detention on remand is continuing and proceedings are pending. Information is awaited in this respect.

Decisions

The Deputies

1. recalled that in the case of Cahit Demirel (Application No.18623/03), the Court considered that the violations in these cases “originated in widespread and systemic problems arising out of the malfunctioning of the Turkish criminal justice system and the state of the Turkish legislation respectively” and underlined that “general measures at national level must be taken […] in order to ensure the effective protection of the right to liberty and security in accordance with the guarantees laid down in Article 5 §§ 3 and 4 of the Convention”;

2. welcomed the recent efforts made by the Turkish authorities, in particular within the context of the “Third and Fourth Reform Packages”, with the aim of aligning Turkish legislation and practice with Convention requirements;

3. noted with satisfaction the statistical information demonstrating that there is a significant decrease in the length of detention on remand and that the use of preventive measures as an alternative to detention has been increasing thanks to the reforms adopted recently;

4. considering that the Turkish legislation still allows for the possibility of extension of detention on remand up to 10 years for certain crimes, including terrorism, invited the authorities to provide specific statistical information on the detention periods of persons detained in proceedings related to such crimes;

5. invited further the Turkish authorities to provide information on the development of the judicial practice in line with Convention requirements following the legislative reform aimed at improving the reasons given in decisions extending detention on remand, including for crimes related to terrorism;

6. welcomed the introduction of a remedy to challenge the lawfulness of detention on remand and the extension of the scope of the right to compensation;

7. invited the Turkish authorities to clarify whether the right to compensation can be exercised while detention on remand is continuing and proceedings are pending.

TURKEY

Application: 28490/95

Judgment final on: 19/09/2003

HULKI GUNES GROUP v. Turkey

Enhanced procedure: urgent individual measures

Reference texts:

Interim Resolutions: ResDH(2005)113; CM/ResDH(2007)26; CM/ResDH(2007)150

Two letters sent by CM Chairmen and the replies provided by Turkey : DD(2005)148; DD(2005)494

Information document CM/Inf/DH(2009)5

Communication from Turkey (04/06/2012) DH-DD(2012)547

Communication from Turkey (24/09/2012) DH-DD(2012)851

Communication from Turkey (29/10/2012) DH-DD(2012)1015

Communication from Turkey (17/01/2013) DH-DD(2013)81

Communication from Turkey (09/04/2013) DH-DD(2013)420

Communication from Turkey (03/05/2013) DH-DD(2013)512

Decision adopted at the 1164th meeting (March 2013)

Case description: Unfair criminal proceedings (the applicants were sentenced to lengthy prison terms on the basis of statements made by gendarmes or other persons who never appeared before court, or on the basis of statements obtained under duress and in the absence of a lawyer); ill-treatment of applicants while in police custody; lack of independence and impartiality of state security courts; excessive length of criminal proceedings; absence of an effective remedy (violations of Article 6§§1 and 3 and of Articles 3 and 13).

Status of execution: From the beginning of its examination of the Hulki Güneş group, the Committee considered that the proceedings in the applicants’ cases required reopening in order to redress the violations found by the European Court. However, the provisions on reopening of proceedings (which entered into force in 2003) are not applicable to the applicants' cases. The applicants’ requests for reopening of proceedings have therefore been rejected at domestic level.

Since 2003, the Committee of Ministers has repeatedly urged the Turkish authorities to take the necessary measures (three interim resolutions have been adopted between 2005 and 2007 and two Chairmen sent letters to their Turkish counterparts in 2005 and 2006 conveying the Committee’s concerns).

In response to the Committee’s demands, the Turkish authorities have prepared a number of draft laws allowing the reopening of proceedings in the applicants’ cases. However, all attempts made for the adoption of these draft laws have failed in the past.

An alternative draft law was prepared within the context of “Third Reform Package” in 2012. However, it was not possible to include this draft in the reform package which was adopted in July 2012.

On 9 April 2013 the Turkish authorities informed the Committee that the above-mentioned draft law was included in the “Fourth Reform Package” and was sent to Parliament on 7 March 2013.

The Turkish Parliament adopted the “Fourth Reform Package” (Law No. 6459) on 11 April 2013.

The provision adopted allows the reopening of proceedings in cases under the supervision of the Committee of Ministers as of 15 June 2012. The requests for reopening of proceedings can be lodged within three months after the entry into force of Law No. 6459.

Application

Case

Judgment of

Final on

28490/95

HULKI GÜNEŞ

19/06/2003

19/09/2003

72000/01

GÖÇMEN

17/10/2006

17/01/2007

46661/99

SÖYLEMEZ

21/09/2006

21/12/2006

25060/02+

ERDAL ASLAN

02/12/2008

02/03/2009

1172nd meeting - Notes:

Assessment of the new provision: A transitional provision was added to the Code of Criminal Procedure with Law No. 6459. According to the provision, it will be possible to request reopening of proceedings in cases under the supervision of the Committee of Ministers as of 15 June 2012. Since the Committee was examining the applicants’ cases on that date, the applicants will be able to request the reopening of proceedings in their cases. These requests can be made within three months after Law No. 6459 enters into force.

Decisions

The Deputies

1. welcomed the adoption of the law allowing the reopening of proceedings in the applicants’ cases on 11 April 2013 by the Turkish Parliament and its entry into force on 30 April 2013;

2. noted with satisfaction that the Turkish authorities have sent official notifications to all applicants in the present group of cases and informed them of their right to a reopening of proceedings following the coming into force of the above-mentioned law;

3. noted that the applicant in the case of Hulki Güneş has lodged a request for reopening of proceedings which was accepted by the competent domestic court and that a retrial has started;

4. invited the Turkish authorities to provide information to the Committee as to whether the applicants in the other cases in this group have also made such requests and, if so, how the procedural shortcomings identified by the Court will be remedied during the reopened proceedings and their outcome;

5. in view of the above developments, decided to continue the supervision of these cases under the standard procedure.

UKRAINE

Application: 34056/02

Judgment final on: 08/02/2006

GONGADZE v. Ukraine

Enhanced procedure: complex problem

Reference texts:

Interim Resolutions CM/ResDH(2008)35, CM/ResDH(2009)74

Communication from Ukraine (13/05/2011) (individual measures) DH-DD(2011)376

Communication from Ukraine (27/01/2012) (individual measures) DH-DD(2012)125

Communication from Ukraine (13/02/2012) (individual measures) DH-DD(2012)172

Communication from Ukraine (31/05/2012) (individual measures) DH-DD(2012)752

Communication from Ukraine (16/08/2012) (individual measures) DH-DD(2012)826

Communication from Ukraine (15/11/2012) (individual measures) DH-DD(2012)1086

Communication from Ukraine (09/04/2013) DH-DD(2013)410

Decision adopted at the 1157th meeting (December 2012)

Case description: The authorities' failure, in 2000, to protect the life of the applicant's husband, a journalist known for his criticism of those in power, threatened by unknown persons, resulting in his abduction and death (violation of Article 2); lack of an effective investigation into his abduction and death due to the fact that the state authorities were more preoccupied with proving the lack of involvement of high state officials in the case than by discovering the truth (violation of Article 2); degrading treatment of the journalist's widow on account of the attitude of the investigating authorities (violation of Article 3); lack of an effective remedy in respect of the inefficient investigation and in order to obtain compensation (violation of Article 13).

Status of execution: The Committee has been examining this case since 2006, adopting two Interim Resolutions so far (at its 1028th meeting (June 2008) (DH) and at its 1065th meeting (September 2009) (DH)).

Individual measures: The criminal investigation into G. Gongadze’s death has continued after the Court’s judgment with a view to remedy the shortcomings identified by the Court. The major developments can be summarised as follows:

    · The criminal proceedings against the suspected perpetrators of the crime were concluded in 2008 and three police officers were convicted for abduction and murder of G. Gongadze.

    · In its Interim Resolution CM/ResDH(2008)35, the Committee noted this fact but expressed regret that the investigations to find the instigators and organisers had not been completed.

    · Subsequently, in a further Interim Resolution CM/ResDH(2009)74, the Committee could, however, note with satisfaction a number of developments, including notably the arrest of the superior of the perpetrators, O. Pukach, and the carrying out of a phonoscopic examination of the so-called “Melnychenko” tapes by a joint group of Ukrainian and foreign experts. In the light of the developments, the Committee strongly encouraged the authorities to enhance their efforts to bring the ongoing investigation to an end.

    · The criminal investigations in both the case against O. Pukach and former President L. Kuchma have eventually led to the institution of criminal proceedings: O. Pukach was charged with a number of crimes, whereas L. Kuchma was charged with abuse of power for having given unlawful order to Y. Kravchenko (then-Minister of the Interior deceased in 2005) to use force against G. Gongadze. In both cases, the applicant and her representatives were granted access to the case-files and allowed to participate actively in the hearings.

    · The criminal proceedings against O. Pukach were concluded in first instance on 29 January 2013: O. Pukach was sentenced to life imprisonment for abuse of authority, excess of official powers and premeditated murder of G. Gongadze. O. Pukach, as well as the applicant, have appealed against the judgment. The proceedings are currently pending before the second instance court.

    · In the context of the above proceedings, the criminal investigation in the case originally brought against the deceased Minister of Interior, Y. Kravchenko, has been dissociated by the court from the proceedings in the Pukach case and sent back to the prosecutor for further investigations.

    · As regards the prosecutor’s decision to institute criminal proceedings against L. Kuchma, this decision was quashed by the courts for lack of sufficient legal grounds, a decision upheld by the High Specialised Court for Civil and Criminal Cases on 26 June 2012. Having examined all the evidence relied upon by the prosecutors, the courts held that the only ground for initiating proceedings had been the “Melnychenko” tapes. Referring to a decision of the Constitutional Court of 20 October 2011 on admissibility of evidence in criminal proceedings (delivered in response to a request lodged by the Security Service), the courts ruled that the tape-recordings could not be admitted as evidence against L. Kuchma as they had been obtained illegally without due authorisation.

In its last decision of December 2012, the Committee noted, in particular, the domestic court’s decision to quash the prosecutor’s decision to institute criminal proceedings against L. Kuchma and recalled the Convention requirements and the Court’s case-law as regards the necessity of balancing the right to an effective investigation against other rights and interests, such as the right not to have illegally obtained evidence used at trial. The Committee invited the Ukrainian authorities to provide information on how Ukrainian law ensures this balancing, including a translation of the Constitutional Court’s decision of 20 October 2011 relied upon by the domestic courts when dismissing the prosecutor’s decision to institute criminal proceedings against L. Kuchma and on the prosecutor’s assessment of the impact of this decision on the investigation relating to L. Kuchma. The Committee also insisted on the Ukrainian authorities’ obligation to continue their efforts to find the instigators and organisers of the killing of G. Gongadze and, considering the time elapsed, to enhance their efforts to ensure that all necessary investigatory measures to this end are taken as a matter of urgency.

The Ukrainian authorities provided the requested text of the decision of the Constitutional Court (see DH-DD(2013)410); so far, however, information on the other issues raised by the Committee is still expected.

The Ukrainian authorities also informed the Committee that “the General Prosecutor’s Office continues its investigative actions in order to thoroughly and objectively establish the circumstances of the case and identify all participants in the crime committed against Mr G. Gongadze”.

General measures: The general measures are examined in the context of the Khaylo group of cases.

Application

Case

Judgment of

Final on

34056/02

GONGADZE

08/11/2005

08/02/2006

1172nd meeting – Notes

As to the outstanding questions concerning the investigations into the instigators and organisers of G. Gongadze’s abduction and murder, it is recalled that the Committee insisted at its 1157th meeting in December 2012 (DH) on the Ukrainian authorities’ obligation to continue and, considering the time elapsed, to enhance their efforts to ensure that all necessary investigatory measures to this end are taken as a matter of urgency.

In response hereto, it is welcomed that the trial against O. Pukach was completed in first instance on 29 January 2013. Proceedings in second instance are currently pending.

As regards the criminal investigations concerning L. Kuchma, information was requested as to the prosecutors’ assessment of the impact of the High Specialised Court’s decision of 26 June 2012 to quash their earlier decision to institute criminal proceedings as the so-called “Melnychenko” tapes relied on by the prosecutors were inadmissible as evidence, having been obtained illegally.

In this context, it is recalled that the Committee in particular requested information on the possibilities offered by Ukrainian law to balance the right to an effective investigation against other rights and interests, such as the right not to have illegally obtained evidence used at trial. An analysis of the decision of the Constitutional Court of 20 October 201115 appears to confirm the questions and doubts raised by the Committee at its last examination of this case: the decision seems to exclude automatically the use at trial of any evidence obtained illegally, without providing for the need, or even the possibility, to undertake a balancing of competing interests flowing from the Convention and the Court’s case-law.

In the light of the above and the fact that the General Prosecutor’s Office continues its investigation into the circumstances of G. Gongadze’s death, it is all the more important that the Committee receives information on the points raised in its last decision. No such information has, however, been received at the time of issuing of the draft order of business.

Decisions

The Deputies

1. recalled their last decision adopted in December 2012 in this case;

2. noted the completion in January 2013 of the trial in first instance against O. Pukach, the superior of the three police officers already convicted, for his involvement in the murder of G. Gongadze;

3. noted that some information requested at the last examination of this case is still awaited, and urged the Ukrainian authorities to provide it as soon as possible;

4. noted in this context that the Prosecutor General’s Office continues its investigation into the circumstances of G. Gongadze’s death.

UKRAINE

Application: 23893/03, 38722/02

Judgment final on: 15/08/2012, 05/07/2005

KAVERZIN v. Ukraine

AFANASYEV GROUP v. Ukraine

Enhanced procedure: structural and complex problem

Reference texts:

Action plan (Kaverzin case) (09/04/2013) DH-DD(2013)411

Action plan (Afanasyev group) (01/08/2012) DH-DD(2012)1182

Action plan (10/11/2011) (Bilyy case) DH-DD(2012)230

Action plan (10/11/2011) (Samardak case) DH-DD(2012)229

Communication from Ukraine (04/04/2013) DH-DD(2013)427

Decision adopted at the 1100th meeting (December 2010) (Afanasyev group) (p. 453)

Case description: Torture and/or ill-treatment by the police (use of physical or psychological force), mostly in order to obtain confessions (substantive violations of Article 3), and lack of effective investigations into such complaints (procedural violations of Article 3); lack of an effective remedy in this respect in the Afanasyev case (violation of Article 13). The facts in question cover the period starting from 1997 until the delivery of the Court’s judgments.

In the Kaverzin judgment (final on 15 August 2012), Under Article 46, the Court indicated that the above issues resulted from “systemic problems at the national level which […] call for the prompt implementation of comprehensive and complex measures” (§180). It “stress[ed] that Ukraine must urgently put in place specific reforms in its legal system in order to ensure that practices of ill-treatment in custody are eradicated, that effective investigation is conducted in accordance with Article 3 in every single case where an arguable complaint of ill-treatment is raised and that any shortcomings in such investigation are effectively remedied at the domestic level” (§182).

The Kaverzin case further concerns inhuman and degrading treatment in prison due to the systematic handcuffing of the (blind) applicant when taken out of his cell (violation of Article 3).

In some cases, the Court also found other violations: inadequate medical assistance in detention; irregularities in detention on remand; excessive length of proceedings and lack of effective remedies; non-enforcement of judicial decisions and lack of effective remedies; unfair trial (Articles 3, 5§1, 5§3, 5§5, 6§1, 6§3, 13, 1 of Protocol No. 1).

Status of execution: The Committee of Ministers has been examining the Afanasyev group of cases since 2005. In response to the “quasi-pilot” judgment of Kaverzin delivered in 2012, the Ukrainian authorities submitted a global action plan on 9 April 2013 (see DH-DD(2013)411).

Individual measures:

a) The just satisfaction awarded in respect of moral and material damage and of costs and expenses was paid within the deadline in all cases, with the exception of the Suptel case, in which information is awaited on the payment of the default interest.
b) Concerning the domestic investigations into the applicants’ allegations of ill-treatment, information is still awaited on the progress achieved in those cases where the investigation was still pending at the time of the delivery of the Court’s judgments (Afanasyev; Kobets; Kovalchuk; Kulish; Oleksiy Mykhaylovych Zakharkin; Samardak; Sylenok and Tekhnoservis-plus; Suptel; Teslenko; Vergelskyy; and Yatsenko cases). In those cases where the domestic investigations had been closed at the time of the delivery of the Court’s judgments (Aleksakhin; Aleksandr Smirnov; Bilyy; Bocharov; Drozd; Dushka; Grigoryev; Ismailov; Kaverzin; Klishyn; Korobov; Kozinets; Lopatin and Medvedskiy; Savin; and Spinov cases), information is awaited on the measures taken to initiate investigations in compliance with the Convention requirements and the Court’s case-law.
c) As regards the systematic use of handcuffs whenever the applicant was taken out of his cell in the Kaverzin case, the Ukrainian authorities confirmed that they have abandoned this practice vis-à-vis the applicant.
d) Concerning other individual measures resulting from the other violations found by the Court in these cases, information is awaited on the current state of criminal proceedings in the Suptel and Vergelskyy cases and on possibilities to accelerate them, if still pending. Lastly, information is also awaited on the possibilities for reopening of the unfair trials in the Korobov and Grigoryev cases.

General measures: The action plan submitted by the Ukrainian authorities includes a range of different measures adopted in response to the Court’s findings.

As regards the prevention of ill-treatment by the police, the measures reported essentially concern:

- the establishment of a National Preventive Mechanism (NPM) as required under the 2002 UN Optional Protocol to the United Nations Convention against Torture and other Cruel, Inhuman or Degrading treatment or Punishment (OPCAT) (the NPM operates since November 2012 under the “Ombudsperson plus civil society organisation” model);
- the in-service training of the authorities concerned (a comprehensive set of training, seminars, round tables and conferences was held in 2012 for judges, prosecutors and police and other law-enforcement officers dedicated mostly to the implementation of the new Code of Criminal Procedure (CCP) in force since 19 November 2012);
- the novelties introduced in the new CCP, notably legal representation of a suspect/accused in a criminal case, issues related to obtaining evidence and its admissibility in criminal proceedings, introduction of the investigating judge; and
- the use of video control devices in detention premises.

As regards the effectiveness of investigations into complaints of ill-treatment by police, the measures reported essentially concern:

- the institution of criminal proceedings (under the new CCP, a full-scale investigation commences as soon as information on an offence is entered into the “Integrated Register of Pre-Trial Investigations”, abolishing the “pre-investigation” enquiry phase which used to exist under the old 1960 Code repeatedly criticised by the Court);
- the victim status (under the new CCP, the status of a victim is formalised and includes a range of procedural rights);
- the State Bureau of Investigation (SBI) (to be created at the latest by 2017; this new body will deal, among others, with the investigation of complaints of ill-treatment).

The authorities also provided statistical data on processing of ill-treatment complaints in 2010-2012.

As regards the systematic handcuffing of the applicant in the Kaverzin case, the authorities indicated that this violation occurred because of incorrect administrative practice and that therefore publication and dissemination of the judgment were sufficient as general measure.

The general measures in response to the other violations found by the Court in these cases are examined in the context of the following groups of cases: access to adequate medical care in detention: Isayev; irregularities in detention on remand: Kharchenko; excessive length of criminal proceedings: Merit; non-enforcement of domestic judicial decisions: Yuriy Nikolayevich Ivanov / Zhovner; equality of arms in cassation appeals: Zhuk; convictions on the basis of confessions given under duress and in the absence of legal assistance: Balitskiy / Yaremenko.

Application

Case

Judgment of

Final on

23893/03

KAVERZIN

15/05/2012

15/08/2012

AFANASYEV GROUP

38722/02

AFANASYEV

05/04/2005

05/07/2005

31939/06

ALEKSAKHIN

19/07/2012

19/10/2012

14475/03

BILYY

21/10/2010

21/01/2011

21037/05

BOCHAROV

17/03/2011

17/06/2011

12174/03

DROZD

30/07/2009

30/10/2009

29175/04

DUSHKA

03/02/2011

03/05/2011

51671/07

GRIGORYEV

15/05/2012

15/08/2012

17323/04

ISMAILOV

27/11/2008

27/02/2009

30671/04

KLISHYN

23/02/2012

23/05/2012

16437/04

KOBETS

14/02/2008

14/05/2008

39598/03

KOROBOV

21/07/2011

21/10/2011

21958/05

KOVALCHUK

04/11/2010

04/02/2011

75520/01

KOZINETS

06/12/2007

06/03/2008

35093/07

KULISH

21/06/2012

21/09/2012

2278/03+

LOPATIN AND MEDVEDSKIY

20/05/2010

04/10/2010

1727/04

OLEKSIY MYKHAYLOVYCH ZAKHARKIN

24/06/2010

24/09/2010

43109/05

SAMARDAK

04/11/2010

04/02/2011

34725/08

SAVIN

16/02/2012

16/05/2012

38683/06

SMIRNOV ALEKSANDR

15/07/2010

15/10/2010

34331/03

SPINOV

27/11/2008

06/07/2009

39188/04

SUPTEL

19/02/2009

19/05/2009

20988/02

SYLENOK AND TEKHNOSERVIS-PLUS

09/12/2010

09/03/2011

Application

Case

Judgment of

Final on

55528/08

TESLENKO

20/12/2011

20/03/2012

19312/06

VERGELSKYY

12/03/2009

12/06/2009

75345/01

YATSENKO

16/02/2012

16/05/2012

1172nd meeting – Notes

Individual measures:

a) Domestic investigations into the applicants’ allegations of ill-treatment: In most cases, information is still awaited on the developments concerning these investigations after the delivery of the Court’s judgments. It is therefore proposed that the Ukrainian authorities identify, in close co-operation with the Secretariat, the outstanding questions in this respect, in order for the Committee to be able to examine these issues in detail in a near future.

b) Systemic use of handcuffs whenever the applicant was taken out of his prison cell in the Kaverzin case: The discontinuation of this practice vis-à-vis the applicant is welcomed.

General measures:

The information provided by the Ukrainian authorities focuses on a number of legislative and practical measures, aimed mainly at the prevention of ill-treatment by the police. The establishment of a National Preventive Mechanism required under the OPCAT is welcomed, as are the changes introduced through the new CCP (adopted following an expert opinion by Council of Europe experts of the draft CCP). It will be important for the Committee to receive updated information on the practical implementation of these measures, together with an impact assessment from the Ukrainian authorities.

As regards the question of effective investigations into ill-treatment allegations, the information provided so far needs a number of clarifications. It is noted that the SBI is to be created at the latest by 2017. However and most notably, it is not clear how it will be ensured that in the meantime, such investigations comply with the Convention requirements and the Court’s case-law, notably as regards the requirement of independence.

It should further be noted that some of the shortcomings found by the Court in these cases have not been addressed in the information provided. It is therefore proposed that the Ukrainian authorities prepare additional information, in close consultation with the Secretariat, so that a detailed memorandum evaluating the various measures adopted and/or envisaged could be drafted for the Committee. Further, the Ukrainian authorities should be encouraged to continue to take advantage of the opportunities offered by the Council of Europe under its various technical assistance programmes, most notably within the framework of the EU/CoE Joint Programme “Reinforcing the fight against ill-treatment and impunity”.

As regards the systematic handcuffing of the applicant in the Kaverzin case, the Ukrainian authorities noted that this violation occurred as a “result of improper administrative practice”, and that therefore dissemination and publication of the judgment will be sufficient to prevent similar violations. However, in the Kaverzin judgment, the Court noted, as regards the systematic handcuffing of prisoners sentenced to life, that domestic regulations required the authorities to use the impugned measure on all life-sentenced men, without giving consideration to their personal situation and the individual risk they might or might not present (§§51, 54 + 162).

In this respect, it should be noted that the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has concluded after its September 2009 visit to Ukraine (see document CPT/Inf(2011)29) that “[t]he security measures applied to lifers remained grossly excessive”16. The CPT called upon the Ukrainian authorities to review the security arrangements for life-sentenced prisoners and, in particular, to ensure that the handcuffing of life-sentenced prisoners when outside their cell is always based on an individual risk assessment.

In their response to this report (see document CPT/Inf(2011)30), also available in Ukrainian, it seems that the authorities limit themselves to recalling the regulatory framework on the basis of these measures, without dealing with the substance of the recommendation made.

Consequently, in the light of the Court’s findings and bearing in mind the CPT’s recommendations, it seems legitimate to ask the Ukrainian authorities to further explore the need for general measures capable of concretely responding to the Court’s findings and preventing further violations of this kind.

Decisions

The Deputies

1. noted the information provided by the Ukrainian authorities over the last months, in particular the most recent action plan of 9 April 2013 (see DH-DD(2013)411);

as regards individual measures:

2. took note of the authorities’ confirmation that the systematic handcuffing of the applicant whenever taken out of his cell in the Kaverzin case has been discontinued;

3. invited the Ukrainian authorities, in close co-operation with the Secretariat, to identify all outstanding questions following the Court’s judgments in respect of the domestic investigations into the applicants’ complaints of ill-treatment by the police;

4. invited also the Ukrainian authorities to provide information on the other outstanding individual measures;

as regards general measures:

5. as regards the prevention of ill-treatment, welcomed the adoption of a number of legislative and practical measures, in particular the establishment of a National Preventive Mechanism under the United Nations Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the changes introduced through the new Code of Criminal Procedure, and invited the Ukrainian authorities to keep the Committee informed on their impact in practice;

6. invited the Ukrainian authorities to provide the necessary additional information, in close consultation with the Secretariat, on the measures adopted and/or envisaged to ensure that investigations into ill-treatment allegations comply with the Convention requirements and the Court’s case-law;

7. noted that the State Bureau of Investigation is to be created at the latest by 2017 and invited the Ukrainian authorities to provide further details in this respect, notably the measures taken with a view to ensuring the independence of investigations;

8. as regards the security arrangements for life-sentenced prisoners, urged the Ukrainian authorities to study the adoption of concrete measures, taking also into account CPT ‘s recommendations in this subject;

9. encouraged the Ukrainian authorities to continue to take advantage of the opportunities offered by the Council of Europe under its various co-operation/technical programmes.

UKRAINE

Application: 6492/11

Judgment final on: 19/11/2012

LUTSENKO v. Ukraine

Enhanced procedure: complex problem

Reference texts:

Action plan (09/04/2013) DH-DD(2013)409

Communication from the authorities (individual measures) (14/05/2013) DH-DD(2013)560

Statement by the Secretary General of the Council of Europe (07/04/2013): Secretary General Jagland welcomes decision of Ukrainian President Yanukovych to pardon former minister Yuri Lutsenko

Joint Statement by EU High Representative Catherine Ashton and Commissioner Štefan Füle on the pardoning of Yuriy Lutsenko (07/04/2013) DD(2013)383

Statement by the President of the Parliamentary Assembly of the Council of Europe (08/04/2013): PACE President welcomes liberation of Yuri Lutsenko in Ukraine

Decision adopted at the 1164th meeting (March 2013)

Case description: 7 violations of the right to liberty and security of the applicant (Articles 5 and 18) on various accounts in the context of several criminal proceedings initiated against him in November and December 2010.

Under Article 18, the Court noted that the prosecuting authorities explicitly indicated the applicant’s communication with the media as one of the grounds for his arrest and accused him of distorting public opinion about crimes committed by him, discrediting the prosecuting authorities and influencing the upcoming trial in order to avoid criminal liability. In the Court’s opinion, such reasoning by the prosecuting authorities clearly demonstrates their attempt to punish the applicant for publicly disagreeing with accusations against him and for asserting his innocence, which he had the right to do. The Court thus found that the applicant’s liberty was restricted also for other reasons than those permissible under Article 5 (violation of Article 18 taken in conjunction with Article 5) (§§108-109).

The other violations found by the Court concern the arbitrary and unlawful arrest and detention on remand of the applicant and the fact that he was not informed about the reasons for his arrest (two violations of Article 5§1, one violation of Article 5§2, two violations of Article 5§3, and one violation of Article 5§4).

Status of execution: The Committee of Ministers examined this case for the first time at its 1164th meeting (March 2013) (DH). An action plan was received on 09/04/2013 (see DH-DD(2013)409) and an additional communication on individual measures on 15/05/2013 (see DH-DD(2013)560).

Individual measures: In its decision of March 2013, the Committee noted, as regards individual measures, that the criminal proceedings following the measures criticised by the Court were still pending and requested the Ukrainian authorities to provide rapidly information on the consequences drawn by domestic courts and authorities from the judgment of the Court.

The response given in the above-mentioned action plan indicates that the applicant’s request to the Supreme Court, through the High Specialised Court for Civil and Criminal Cases, for a review of the impugned decisions on detention on remand (decisions of 27 December 2010 of the Pecherskyy District Court of Kyiv and of 5 January 2011 of the Kyiv City Court of Appeal) was rejected on 19 February 2013. The action plan does not provide further details, nor does it include any information on the criminal proceedings still pending at the time of the Committee’s decision.

A press release issued by the Prosecutor General’s Office on 9 January 2013 indicates that the applicant’s complaint filed with the Prosecutor General’s Office, after the Court’s judgment, against the prosecutors and judges who had authorised his arrest was dismissed for lack of corpus delicti. An appeal against this decision is currently pending at first instance.

As regards the criminal proceedings in the context of which the violations of the Convention took place, it appears that the High Specialised Court rejected the applicant’s cassation appeals against his convictions on 3 April and 10 April 2013, respectively. Further details in this respect have been provided in the additional communication on individual measures of 15 May 2013.

On 7 April 2013, the President of Ukraine pardoned the applicant. The applicant regained his liberty the same day. The Secretary General of the Council of Europe welcomed this decision, stating that “[i]t follows the spirit of the judgment of the European Court of Human Rights”.

General measures: In its decision adopted in March 2013, the Committee invited the Ukrainian authorities also to provide information on the general measures adopted and/or envisaged to ensure compliance with Article 18, taken in conjunction with Article 5, of the Convention in the Ukrainian justice system.

In their action plan, the Ukrainian authorities referred to the Kharchenko group of cases as regards the general measures related to the violations of Article 5§1, 5§3 and 5§4.

As regards the violation of Article 5§2 (failure to duly and promptly inform the applicant about the reasons for his arrest), the Ukrainian authorities consider that this violation was of an isolated nature caused by deficiencies in administrative practice and that dissemination and publication of the judgment would be a sufficient general measure to prevent similar future violations. At the same time, the Ukrainian authorities indicated that the provisions of the new Code of Criminal Procedure (CCP) related to detention on remand and other preventive measures also serve as additional safeguards against similar future violations.

As regards the violation of Article 18 taken in conjunction with Article 5§1, the Ukrainian authorities assume that the measures aimed at remedying the violations of Article 5 are also relevant to the violation of Article 18, “as the new procedure of application of the preventive measure in the form of detention on remand ensures full compliance with the requirements of Article 5 § 1 (c), including those related to reasons for the detention, and, accordingly shall also prevent any possible violations of Article 18 in this respect”.

The Ukrainian authorities also provided information on the publication and dissemination of the Court’s judgment.

The last communication of 15 May 2013 does not contain any additional information on general measures.

Application

Case

Judgment of

Final on

6492/11

LUTSENKO

03/07/2012

19/11/2012

1172nd meeting – Notes

Concerning individual measures:

Notwithstanding the additional information provided in response to the Deputies’ request to obtain rapidly information on the consequences drawn by domestic courts and authorities from the judgment of the Court, a number of questions relating to the issue of individual measures remain open.

As regards the pre-trial detention decisions impugned by the European Court, the action plan of 9 April 2013 indicates that the applications lodged by the applicant for a review of these were rejected by the High Specialised Court on 19 February 2013. No information is, however, given as to any possible conclusions drawn by the said High Court from the Court’s judgment. One of the consequences of the rejection of these applications appears to be that there is still no clear recognition by the domestic courts of the unlawfulness of the applicant’s pre-trial detention so that he is not entitled to claim pecuniary damages, as is in principle his right under Ukrainian law (compensation for moral damages was awarded by the European Court).

As regards the cassation appeals brought by the applicant against the convictions resulting from the pre-trial investigations at issue, it appears from a first reading of the communication received on 15 May 2013 and the appended judgment of 3 April 2013 from the High Specialised Court that the Court rejected the applicant’s arguments challenging the reliability of the pre-trial investigation and to the appropriateness, if nevertheless convicted, of at least a mitigation of sentence (limited to a non-custodial sentence). The relevance of the findings of the European Court appears, in this context, to have been rejected without any substantial examination of their impact on the proceedings. One of the issues requiring further analysis is how the High Specialised Court could base its decision on the premise that the European Court had not examined the prosecutors’ behaviour in the course of the pre-trial investigation. It appears evident that at least the violation of Article 18, taken in conjunction with Article 5, was clearly based precisely on the prosecutors’ behaviour and attitude during the pre-trial investigation.

It is, however, common knowledge that the applicant has recently been set free following a pardon granted by the President of Ukraine (cf SG/Inf(2013)12 of 10 April 2013) . The extent to which this decision may have removed remaining consequences of the different violations found and provided adequate redress needs to be clarified.

In view of the above questions, the Deputies may wish to invite the Ukrainian authorities to provide, in close co-operation with the Secretariat, all relevant details as regards the issue of individual measures so as to allow a complete assessment of this issue.

Concerning general measures:

Concerning the information provided in the action plan of 9 April 2013, the following should be noted:

a) As regards the violations of Article 5§1, 5§3 and 5§4, it is recalled that the general measures in this regard are examined by the Committee in the context of the Kharchenko group of cases.
b) As regards the violation of Article 5§2 (failure to duly and promptly inform the applicant about the reasons for his arrest), it is recalled that this issue is followed in a number of other cases17 which seems to indicate that the violation in the present case might not have been of isolated nature. It is proposed to follow the remedial action taken in the context of the Nechiporuk and Yonkalo case.
c) As regards the violation of Article 18 taken in conjunction with Article 5, the Ukrainian authorities have submitted that the legislative and regulatory measures adopted in response to the Article 5 violations are sufficient. However, it must be stressed that the violation of Article 18 occurred not because of shortcomings in national legislation, but because the prosecutors took action which, in principle amounting to abuse of power, and because these actions were accepted by the courts. It is still not clear in what manner the new provisions improving the legislative framework surrounding detention on remand could prevent such actions, and this all the more so as the justifications for detention on remand have remained in substance the same. Further information on this point thus appears needed, especially as the domestic courts and authorities do not appear to have taken any special action in response to this violation in the context of the applicant’s attempts to obtain individual redress.

The Deputies’ attention is drawn to the recent judgment in the Tymoshenko case against Ukraine of 30 April 2012 (not final) in which the Court found a new violation of Article 18, combined with Article 5, referring largely to the Lutsenko judgment.

No further information on general measures has been received in the additional communication of 15 May 2013.

Decisions

The Deputies

1. noted the information provided with respect to the responses given by the domestic courts to the applicant’s attempts to obtain redress;

2. recalled, with satisfaction, that the applicant was set free on 7 April 2013;

3. invited the Ukrainian authorities to provide, in light of this situation and in close contact with the Secretariat, all the information necessary for a complete assessment of the question of individual measures;

4. noted, as regards general measures, that the responses to the different violations of Article 5 found in this case are examined in the context of other groups of cases (the Kharchenko group of cases with respect to the violations of Article 5§§1, 3 and 4 and the Nechiporuk and Yonkalo case with respect to the violation of Article 5§2);

5. considered, as regards the violation of Article 18, taken in conjunction with Article 5, that over and above the reform of the Code of Criminal Procedure, specific general measures are deemed necessary in order to ensure compliance with this requirement of the Convention in the Ukrainian justice system and strongly encouraged the Ukrainian authorities to make full use of the co-operation programmes, of which they are beneficiaries, with a view to putting rapidly in place these measures;

6. and consequently invited the Ukrainian authorities to keep the Committee regularly informed on developments in this field.

UKRAINE

Application: 21722/11

Judgment final on: 27/05/2013

OLEKSANDR VOLKOV v. Ukraine

Enhanced procedure: urgent individual measures + complex problem

Reference documents:

Case description: The case concerns 4 violations of the applicant’s right to a fair hearing on account of his unlawful dismissal from his post as a judge at the Supreme Court of Ukraine in June 2010 (Article 6§1):

1) Dismissal proceedings not independent and not impartial and lack of effective judicial control;
2) Absence, in domestic legislation, of a limitation period for the proceedings against the applicant;
3) Different irregularities in the voting process before Parliament concerning the applicant’s dismissal (absence of the majority of MPs, and those present deliberately and unlawfully cast multiple votes belonging to their absent peers);
4) Irregularities in the setting-up and composition of the special chamber of the High Administrative Court dealing with the applicant’s case.

The dismissal was also found to amount to a violation of the applicant’s right to respect for private life (Article 8) as the interference was not compatible with domestic law and as, moreover, domestic law did not meet the requirements of foreseeability and did not provide appropriate protection against arbitrariness.

Considering the special circumstances identified in the judgment, the Court made specific indications under Article 46 as regards both individual and general measures to be taken in order to execute this judgment, as follows:

Individual measures: The Court held “that the respondent State shall secure the applicant’s reinstatement in the post of judge of the Supreme Court at the earliest possible date” (§§207-208).

General measures: The Court noted that “the present case discloses serious systemic problems as regards the functioning of the Ukrainian judiciary” (§199). The Court indicated that Ukraine should urgently put in place general reforms in its legal system, notably by taking “a number of general measures aimed at reforming the system of judicial discipline. These measures should include legislative reform involving the restructuring of the institutional basis of the system. Furthermore, these measures should entail the development of appropriate forms and principles of coherent application of domestic law in this field” (§§200 + 202).

Status of execution: As the judgment became final on 27/05/2013, an action plan is currently awaited and the Committee of Ministers will be examining this case for the first time at its 1172nd meeting (June 2013) (DH).

Individual measures: The Court awarded the applicant EUR 6,000 in respect of non-pecuniary damage and EUR 12,000 in respect of costs and expenses. As regards the question of compensation for pecuniary damage, the Court held that it was not ready for decision and accordingly reserved that question.

Further, it is noted that the Court ordered the reinstatement of the applicant in his previous post of Supreme Court judge “at the earliest possible date”. The Ukrainian authorities are therefore expected to rapidly provide information on the measures adopted and/or envisaged in this respect.

General measures: The Court also made specific indications as regards the necessary general measures to be adopted by Ukraine. Information is therefore required on the measures adopted and/or envisaged in this respect so as to prevent future similar violations.

Application

Case

Judgment of

Final on

21722/11

VOLKOV

09/01/2013

27/05/2013

1172nd meeting – Notes

In this case, the Court has ordered “the applicant’s reinstatement in the post of judge of the Supreme Court at the earliest possible date” in the operative part of its judgment. In view of the urgency of the matter, it is proposed to examine this aspect of the case already at the present meeting and invite the Ukrainian authorities to provide information to the Committee in this respect without delay.

It should also be stressed that the Court highlighted in its judgment that complex general measures are urgently needed in the domestic legal system (see §§200-202). Considering the importance of the violations found, it is a matter of utmost priority that the Ukrainian authorities present, as soon as possible, their action plan setting out the general measures adopted and/or envisaged in response to the Court’s findings and indications, together with a concrete timetable for their adoption.

In doing so, the Ukrainian authorities should be strongly encouraged to take full benefit of the various opportunities for assistance offered by the Council of Europe concerning the question of the independence of judiciary, in particular the project “Strengthening the independence, efficiency and professionalism of the judiciary in Ukraine” financed by the Swedish International Development Cooperation Agency (SIDA), as well as the EU/CoE Joint Project on “Enhancing judicial reform in the Eastern Partnership Countries”.

Decisions

The Deputies

1. noted, as regards the obligation to take individual measures, the specific indications made by the Court under Article 46 of the Convention according to which “the respondent State shall secure the applicant’s reinstatement in the post of judge of the Supreme Court at the earliest possible date”;

2. invited the Ukrainian authorities to provide, without delay, information on the measures adopted and/or envisaged to this effect in order to allow the Committee to assess the progress made in this respect at the 1179th meeting (September 2013) (DH);

3. stressed the Court’s findings that “the present case discloses serious systemic problems as regards the functioning of the Ukrainian judiciary”, and that urgent and complex general measures are required in response to this judgment;

4. invited the Ukrainian authorities to provide, as soon as possible, their action plan setting out the general measures adopted and/or envisaged in response to the Court’s findings and indications, together with a concrete timetable for their adoption;

5. strongly encouraged the Ukrainian authorities to take full benefit of the various opportunities for assistance offered by the Council of Europe concerning the question of independence of judiciary.

UNITED KINGDOM

Application: 27021/08

Judgment final on: 07/07/2011

AL-JEDDA v. the United Kingdom

Enhanced procedure: Complex problem

Reference texts:

Updated action plan (18/01/2013) DH-DD(2013)62

Action plan (30/03/2012) DH-DD(2012)437

Communication from a NGO (SIHRG) (19/07/12) DH-DD(2012)712

Decision adopted at the 1144th meeting (June 2012)

Case description: The case concerns the internment of the applicant from 10 October 2004 until 30 December 2007 in a detention centre in Basrah, Iraq, run by British forces within the framework of United Nations Security Council Resolution 1546. However, the European Court found that, in the particular facts of the case, the applicant’s detention was attributable to the United Kingdom rather than the United Nations. It noted, inter alia, that there had been no prior United Nations Security Council Resolution providing for the allocation of roles in Iraq; that the United Kingdom and the United States of America had subsequently become Occupying Powers in Iraq; that the United Nations had not controlled the deployment or conduct of the Multi-National Force in Iraq; and that the United Nations Security Council had had neither effective control nor ultimate authority over the actions and omissions of that force in Iraq (see §§76-84). Therefore, during his detention the applicant fell within the jurisdiction of the United Kingdom for the purposes of Article 1 of the Convention (see §§85-86).

The Court noted that the reason for the applicant’s detention (for imperative reasons of security and with no intention of bringing criminal charges against him) did not fall within the list of grounds for permissible detention in Article 5 § 1. The Court further found that the United Kingdom’s binding obligations under the relevant Security Council Resolution did not contain any obligation to use measures of internment. In the absence of any such conflicting binding obligation, the provisions of Article 5 § 1 applied and the applicant's detention was therefore in violation of that Article.

Status of execution: The authorities submitted an updated action plan on 18/01/2013.

Individual measures: The applicant was released from detention in 2007. The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage which has been paid. No other individual measure appears to be necessary.

General measures: At its last examination of the case, the Committee noted the authorities’ indication in the Action plan that the Court’s findings in this case have no implications for the United Kingdom's operations elsewhere, including detention operations in Afghanistan, and invited the authorities to clarify this question with the Secretariat in the context of bilateral consultations.

Bilateral consultations on this issue were held with the authorities during the visit of the Department for the Execution of Judgments to the United Kingdom in July 2012. Subsequently, the authorities submitted an updated Action plan which reiterates the conclusion that the Court’s findings in this case are set in the factual circumstances of the United Kingdom’s past operations in Iraq and have no implications for its current operations elsewhere. The updated action plan also provides some clarifications, explaining that in Afghanistan, United Kingdom armed forces operate as part of the International Security Assistance Force (ISAF) a United Nations-mandated force which operates with the consent of the Government of Afghanistan and as authorised by the United Nations Security Council. The authorities also indicate that the question of whether the European Convention applies to United Kingdom detention operations in Afghanistan is currently being examined by the domestic courts in the context of claims brought by a number of individuals who are being or were previously detained by the United Kingdom, in Afghanistan.

According to the updated action plan, the settlement negotiations with former detainees, noted with interest by the Committee in its last decision, are making progress. In 2012, 162 claims were settled. Negotiations continue on a further 196 claims. The authorities will continue to provide updates on the progress of the negotiations.

The judgment has been published in a number of sources. It has also been widely disseminated across Government. The Ministry of Justice has led co-ordination activity to ensure its implications are understood across the wide range of Government Departments. In addition, there have been a range of expert and academic seminars on the judgment as well as academic commentary.

Application

Case

Judgment of

Final on

27021/08

AL-JEDDA

07/07/2011

Grand Chamber

1172nd meeting - Notes

As regards the Committee’s request for clarification on the implications of the judgment for the United Kingdom’s operations elsewhere, in light of the specific findings of the European Court in the present case concerning Iraq (see the case description), the Deputies might wish to note with interest the clarifications provided by the authorities on the different framework for United Kingdom operations in Afghanistan. The Deputies might also wish to note that this issue is currently being examined by the domestic courts.

The Deputies may wish to note with satisfaction the significant progress made in the settlement proceedings, the authorities’ intention to continue to keep the Committee informed of developments in this respect and the wide publication and dissemination of the judgment across Government.

In the light of the above, the Deputies might wish to continue their supervision of the execution of this case under the standard procedure.

Decisions

The Deputies

1. recalled as regards individual measures, that the applicant was released from detention in 2007, that the just satisfaction has been paid and that no further individual measure appears necessary;

2. as regards general measures, noted with interest the clarification that the Court’s findings in this case are set in the factual circumstances of United Kingdom’s past operations in Iraq and have no implications for its current operations elsewhere including detention operations in Afghanistan in particular because United Kingdom armed forces operate there as part of a United Nations-mandated force authorised by the United Nations Security Council with the consent of the Government of Afghanistan; noted also that this question is currently being examined by the domestic courts;

3. noted with satisfaction the progress of the settlement negotiations undertaken by the authorities to resolve similar cases and that the judgment has been widely published and disseminated within government;

4. invited the authorities to keep the Committee updated on all relevant developments and decided, in the light of the significant progress made, notably in the settlement proceedings, to transfer this case for supervision under the standard procedure.

C. Classification of cases18

Item 1

Classification of new judgments which became final before 4 April 2013

Decisions

The Deputies

1. noted that the following judgments have become final before 4 April 2013, and decided to examine them under the standard procedure (list of cases);

2. decided to examine the following judgments under the enhanced procedure19: (list of cases).

* * *

Item 2

Change of classification20

(a) from standard to enhanced

(b) from enhanced to standard

See decisions under the case of Al-Jedda against United Kingdom.

See decisions under the group of cases Hulki Guneş against Turkey.

D. Supervision of payment of the just satisfaction

Decisions

The Deputies

1. noted that in the following cases, no information had been supplied to the Committee of Ministers or that the information supplied concerning the payment of the just satisfaction awarded by the European Court is incomplete;

2. invited the states concerned to supply information confirming payment of the sums in questions without delay.

Link to the list

* * *

E. Action plans

List of cases which became final after the entry into force of the new working method

and for which an action plan has been presented to the Committee since the last meeting

Decisions

The Deputies

1. noted that, in the cases below, action plans setting out the measures planned to abide by the judgments of the Court have been presented;

2. invited the authorities of the member states concerned to keep the Committee of Ministers regularly informed of the progress made in the implementation of these action plans.

Application

Requête

Case

Affaire

Judgment of /

Arrêt du

Final on /

Définitif le

Ref. doc

ANDORRA / ANDORRE

16047/10

UTE SAUR VALLNET

29/05/2012

29/08/2012

DH-DD(2013)438E

ARMENIA / ARMENIE

23459/03

BAYATYAN

07/07/2011

Grand Chamber

DH-DD(2013)269E

37819/03

BUKHARATYAN

10/01/2012

10/04/2012

DH-DD(2013)269E

37821/03

TSATURYAN

10/01/2012

10/04/2012

DH-DD(2013)269E

8088/05

GABRIELYAN

10/04/2012

10/07/2012

DH-DD(2013)493E

BOSNIA AND HERZEGOVINA / BOSNIE-HERZEGOVINE

3727/08

AL HUSIN

07/02/2012

09/07/2012

DH-DD(2013)543E

BULGARIA / BULGARIE

36760/06

STANEV

17/01/2012

Grand Chamber

DH-DD(2013)306F

19202/03

ILIYA PETROV

24/04/2012

24/07/2012

DH-DD(2013)488E

30383/03

SIVOVA AND KOLEVA

15/11/2011

04/06/2012

DH-DD(2013)489E

17835/07

LOLOVA-KARADZHOVA

27/03/2012

27/06/2012

DH-DD(2013)502E

38780/02

PUTTER

02/12/2010

02/03/2011

DH-DD(2013)500F

3503/06

FILEVA

03/04/2012

03/07/2012

DH-DD(2013)532E

17854/04

SHESTI MAI ENGINEERING OOD AND OTHERS

20/09/2011

20/12/2011

DH-DD(2013)378F

51776/08

A. AND OTHERS

29/11/2011

29/02/2012

DH-DD(2013)590E

CROATIA / CROATIE

52442/09

DURDEVIC

19/07/2011

19/10/2011

DH-DD(2013)573E

42418/10

D.J.

24/07/2012

24/10/2012

DH-DD(2013)572E

FINLAND / FINLANDE

34806/04

X.

03/07/2012

19/11/2012

DH-DD(2013)537E

FRANCE

15054/07+

RESSIOT AND OTHERS

28/06/2012

28/09/2012

DH-DD(2013)307F

12039/08

CADENE

08/03/2012

08/06/2012

DH-DD(2013)592F

14166/09

CELICE

08/03/2012

08/06/2012

DH-DD(2013)592F

39243/10

JOSSEAUME

08/03/2012

08/06/2012

DH-DD(2013)592F

38447/09

KETREB

19/07/2012

19/10/2012

DH-DD(2013)595F

GERMANY / ALLEMAGNE

9300/07

HERRMANN

26/06/2012

Grand Chamber

DH-DD(2013)558E

GREECE / GRECE

33055/08

VENIOS

05/07/2011

05/10/2011

DH-DD(2013)479F

46372/09

KARAMANOF

26/07/2011

08/03/2012

DH-DD(2013)479F

29747/09

TSITSIRIGGOS

17/01/2012

17/04/2012

DH-DD(2013)481F

59000/08

KONTALEXIS

31/05/2011

28/11/2011

DH-DD(2013)482F

IRELAND / IRLANDE

53743/09

MAGGEE

20/11/2012

Decision with undertakings / Décision avec engagement

DH-DD(2013)576E

ITALY / ITALIE

43549/08+

AGRATI AND OTHERS

07/06/2011

08/11/2012

28/11/2011

08/02/2013

DH-DD(2013)267F

NORWAY / NORVEGE

13221/08+

LINDHEIM AND OTHERS

12/06/2012

22/10/2012

DH-DD(2013)501E

POLAND / POLOGNE

23592/07

MIAŻDŻYK

24/01/2012

24/04/2012

DH-DD(2013)550E

ROMANIA / ROUMANIE

32060/05

PARASCINETI

13/03/2012

13/06/2012

DH-DD(2013)266E

22883/05

CRISTIAN TEODORESCU

19/06/2012

19/09/2012

DH-DD(2013)358E

4238/03

MIHAI MOLDOVEANU

19/06/2012

19/09/2012

DH-DD(2013)359E

3490/03

TĂNĂSOAICA

19/06/2012

19/09/2012

DH-DD(2013)361E

RUSSIAN FEDERATION / FEDERATION DE RUSSIE

14902/04

OAO NEFTYANAYA KOMPANIYA YUKOS

20/09/2011

08/03/2012

DH-DD(2013)565E

17423/05+

KOLYADENKO AND OTHERS

28/02/2012

09/07/2012

DH-DD(2013)567E

SLOVAK REPUBLIC / REPUBLIQUE SLOVAQUE

46092/06

KORMOS

08/11/2011

08/03/2012

DH-DD(2013)356E

DH-DD(2013)475E

33937/06

BRUNCKO

03/11/2011

03/02/2012

DH-DD(2013)356E

DH-DD(2013)475E

50903/06

KOVACIK

29/11/2011

29/02/2012

DH-DD(2013)356E

DH-DD(2013)475E

7711/06

ZUBOR

06/12/2011

03/02/2012

DH-DD(2013)475E

25416/07

WINKLER

17/07/2012

17/10/2012

DH-DD(2013)475E

SWEDEN / SUEDE

36124/06

OLSBY

21/06/2012

21/09/2012

DH-DD(2013)350E

TURKEY / TURQUIE

22459/04

PARLAK

19/07/2011

28/11/2011

DH-DD(2013)538E

12358/06

KUSCUOGLU

03/11/2011

03/02/2012

DH-DD(2013)541E

27520/07

ALTUĞ TANER AKÇAM

25/10/2011

25/01/2012

DH-DD(2013)540E

33294/03

AYANGİL AND OTHERS

06/12/2011

06/03/2012

DH-DD(2013)539E

UNITED KINGDOM / ROYAUME-UNI

40060/08

BUCKLAND

18/08/2012

18/11/2012

DH-DD(2013)346E

F. Adoption of final resolutions – Preliminary list

Decision

The Deputies adopted the final resolutions set out in document CM/Del/Dec(2012)1172 Volume of Resolutions, in respect of the judgments listed below:

Resolution / Résolution

Application / Requête

Case / Affaire

Judgment or decision of / Arrêt ou decision du

Final on / Définitif le

 

AZERBAIJAN / AZERBAIDJAN

CM/ResDH(2013)…

21672/05

SULTANOV

13/12/2011

Decision

 

BULGARIA / BULGARIE

CM/ResDH(2013)…

891/05

KASHAVELOV

20/01/2011

20/04/2011

CM/ResDH(2013)…

31001/02

KAMBUROV

23/04/2009

23/07/2009

8682/02

STANCHEV

01/10/2009

01/01/2010

CM/ResDH(2013)…

46343/99

RIENER

23/05/2006

23/08/2006

CM/ResDH(2013)…

310/04

SEIDOVA AND OTHERS

18/11/2010

18/02/2011

CM/ResDH(2013)…

39084/97

YANKOV

11/12/03

11/03/04

47823/99

GEORGIEV

15/12/2005

03/07/2006

33606/05

KANEVA

13/11/2012

 

58971/00

POPOV RADOSLAV

02/11/2006

02/02/2007

57847/00

NAVUSHTANOV

24/05/2007

24/08/2007

39270/98

BELCHEV

08/04/2004

08/07/2004

44062/98

HAMANOV

08/04/2004

08/07/2004

42987/98

VACHEV

08/07/2004

08/10/2004

29381/04

STOYCHEV

21/12/2010

 

74792/01

RASHID No. 2

05/06/2008

05/09/2008

CM/ResDH(2013)…

19418/07

DIMITAR IVANOV

14/02/2012

 
 

CYPRUS / CHYPRE

CM/ResDH(2013)…

4268/04

PANOVITS

11/12/2008

11/03/2009

CM/ResDH(2013)…

20009/06

PANAYIOTOU

20/01/2011

20/04/2011

 

FRANCE

CM/ResDH(2013)…

38396/97

KARATAS AND SARI

16/05/2002

16/08/2002

 

GEORGIA / GEORGIE

CM/ResDH(2013)…

3486/06

KAKULIA AND BULISKERIA

06/11/2012

3486/06

51767/09

TSKHOIDZE

27/11/2012

51767/09

 

GERMANY / ALLEMAGNE

CM/ResDH(2013)…

49601/07

RUDAT

27/11/2012

Decision

 

LITHUANIA / LITUANIE

CM/ResDH(2013)…

17095/02

BALCIUNAS

20/07/2010

20/10/2010

 

REPUBLIC OF MOLDOVA / REPUBLIQUE DE MOLDOVA

CM/ResDH(2013)…

50425/11

CALANCEA

10/07/2012

Decision

5116/08

LEVINTA

10/07/2012

Decision

2156/08

LAZAR

11/09/2012

Decision

 

POLAND / POLOGNE

CM/ResDH(2013)…

19847/07

SOBOLEWSKI No. 2

09/06/2009

09/09/2009

3818/04

SELIWIAK

21/07/2009

21/10/2009

31509/02

STRZAŁKOWSKI

09/06/2009

09/09/2009

CM/ResDH(2013)…

18176/05

WIECZOREK

08/12/2009

08/03/2010

 

ROMANIA / ROUMANIE

CM/ResDH(2013)…

2162/05

THE ARGES COLLEGE OF LEGAL ADVISERS

08/03/2011

08/06/2011

 

1477/02

SC PILOT SERVICES S.A. CONSTANŢA

03/06/2008

22/09/2009

03/09/2008

22/12/2009

 

UNITED KINGDOM / ROYAUME-UNI

CM/ResDH(2013)…

3455/05

A. AND OTHERS

19/02/2009

Grand Chamber

APPENDICES

Appendix 1: list of all the cases for which an action plan / action report has been has been presented to the Committee since the last meeting

Appendix 2: list of cases paid

1 This application was lodged against Italy and Albania but the European Court found no violation in respect of Italy.

2 This application was lodged against Italy and Albania but the European Court found no violation in respect of Italy.

3 the Glykantzi judgment is the third pilot judgment against Greece, referring to length of proceedings before civil courts and the adoption of an effective remedy by 30/01/2014; see notes and decision adopted at the 1164th DH meeting, March 2013

4 Iurcu against the Republic of Moldova, No. 33759/10, judgment of 9 April 2013 (not yet final).

5 However, new paragraph 3 of Article 12 empowers the executive authorities to refuse to agree to the holding of a public event if the notice has been submitted by an individual who is banned from organising a public event or if the chosen venue is prohibited under the law.

6 DH-DD(2013)194.

7 Khimki: the authorities’ refusal of the Gay Pride planned on 14/10/2012 quashed by the Town Court on 31/11/2012; St Petersburg: the authorities’ refusal of the Gay Pride in 2010 upheld by the Smolninskiy District Court of St Petersburg on 13/07/2010. According to the court, the domestic law did not impose an obligation on the authority to suggest an alternative;

8 Arkhangelsk: the bans of the Gay Pride confirmed by the Arkhangelsk Regional Court on 19/01/2012 and on 26/03/2012.

9 St Petersburg: as regards the 2010 Gay Pride, see above. As regards two Gay Prides planned on 25/06/2011 in the Vasileostrovskiy District and in the Admiralteyskiy District respectively, the authorities’ refusal to allow the first event was quashed by the District Court on 14/11/2011 whereas the authorities’ refusal to allow the second event was upheld by the District Court on 03/10/2011. In the latter judgment, the court found that the domestic law did not impose any obligation on the authorities to submit evidence in support of their findings that the location chosen by the organisers was unsuitable, and that the reasons advanced by the authorities were subjective and therefore not amenable to the judicial review.

10 Syktyvkar: the Gay Pride march planned on 31/03/2013 could not be held because the authorities eventually withdrew their alternative proposal which had been accepted by the organisers (the decision confirmed by the Syktyvkar Town Court on 29/03/2013). St Petersburg: the Gay Pride march planned on 25/06/2011 could not be held for the same reason (the authorities’ refusal was however quashed by the Vasileostrovskiy District Court on 14/11/2011).

11 Kostroma: the Regional Court found unlawful the authorities’ refusal of the 2012 Gay Pride only in March 2013. St Petersburg: the refusal concerning the 2011 Gay Pride planned in the Vasileostrovskiy District on 25/06/2011 was quashed only on 14/11/2011.

12 CDL-AD(2013)003, §43

13 CDL-AD(2012)007, § 49

* All reference to Kosovo, whether the territory, institutions or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.

15 Decision No. 12-rp/2011 concerning official interpretation of the provision of Article 62 § 3 of the Constitution. The latter provision reads: “An accusation shall not be based on illegally obtained evidence or on assumptions. All doubts in regard to the proof of guilt of a person shall be interpreted in his favour” (English translation available on the website of the President of Ukraine).

16 Systematic handcuffing of lifers whenever taken out of their cell with the presence of an un-muzzled dog in the corridor.

17 Kaboulov against Ukraine, No. 41015/04+, judgment of 19/11/2009; Nowak against Ukraine, No. 60846/10, judgment of 31/03/2011; Nechiporuk and Yonkalo against Ukraine, No. 42310/04, judgment of 21/04/2011.

18 As set out in paragraph 10 of document CM/Inf/DH(2010)45 final, as approved by the Deputies at their 1100th meeting (December 2010) (DH) (item e) the Deputies decided that “the indicators for cases to be examined under the enhanced supervision procedure would be as follows:

    - judgments requiring urgent individual measures;
    - pilot judgments;
    - judgments disclosing major structural and/or complex problems as identified by the Court and/or the Committee of Ministers;
    - interstate cases.

In addition, the Committee of Ministers may decide to examine any case under the enhanced procedure following an initiative of a member state or the Secretariat. The request may be made at any stage of the supervision procedure. Both member states and the Secretariat should be mindful of the selected indicators when requesting a case be examined under the enhanced procedure.”

19 For each of the cases listed here, the relevant indicator, as set out in footnote above, is indicated.

20 For each of the cases set out in this section, the reasons for proposing a change of classification are indicated (See paragraphs 24-26 of document CM/Inf/DH(2010)37 as reproduced in paragraph 20 of document CM/Inf/DH(2010)45 final).



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