Ministers’ Deputies

Annotated order of Business and

decisions adopted

CM/Del/Dec(2014)1201 6 June 2014



1201st meeting (DH), 3-5 June 2014



CONTENTS

A. General items 5

B. Examination of cases – Proposals from the Chair 6

C. Classification of cases 94

D. Supervision of payment of the just satisfaction 95

E. Action plans 96

F. Adoption of final resolutions 98

APPENDICES 99

LIST OF PARTICIPANTS

The 1201st meeting of the Ministers’ Deputies opened on 3 June 2014 at 10.00 a.m. under the chairmanship of Mr D. Van Eeckhout, Deputy for the Minister for Foreign Affairs of Belgium (in red, the experts invited from the capitals).

PRESENT

ALBANIA

Ms A. Kasa

Mr R. Hoxha

Ms A. Hicka

ANDORRA

Mr J. Dallerès

Mr J. Forner Rovira

ARMENIA

Mr A. Papikyan

Mr A. Khachatryan

AUSTRIA

Mr R. Lennkh

Mr M. Reichard

Mr S. Rutkowski

AZERBAIJAN

Mr J. Mirzayev

Mr H. Akhundov

Mr C. Askarov

BELGIUM

Mr D. Van Eeckhout

Ms M. Janssens

Mr M. Creffier

Ms A. Ghys

BOSNIA AND HERZEGOVINA

Mr A. Săhović

Ms L. Ljubic-Lépine

Mr B. Babić

BULGARIA

Ms K. Beshkova

Ms K. Nikolova

CROATIA

Mr I. Mintas

CYPRUS

Ms T. Constantinidou

Mr S. Hatziyiannis

Mr T. Pittakis

Lord Lester of Herne Hill QC

Mr N. Kyriacou

CZECH REPUBLIC

Mr T. Boček

Mr M. Bouček

Mr P. Konupka

DENMARK

Mr A. de Fine Skibsted

Ms M. Tzeggai

ESTONIA

Ms K. Juhasoo-Lawrence

FINLAND

Ms H. Kosonen

FRANCE

Ms C. Bobko

GEORGIA

Mr L. Meskhoradze

GERMANY

Ms V. Wolf

GREECE

Mr I. Asteriadis

Ms M. Solomou

Mr T. Zafeirakos

Ms O. Patsopoulou

Ms G. Skiani

Mr N. Marinakis

HUNGARY

Ms A. Tóth-Ferenci

ICELAND

-

IRELAND

Mr F. Power

Ms E. McCarron

ITALY

Mr M. Jacoangeli

Mr G. Cavagna

Ms P. Accardo

LATVIA

Mr M. Klīve

Ms K. Lice

LIECHTENSTEIN

Mr D. Ospelt

LITHUANIA

Ms U. Matulevičiené

LUXEMBOURG

Ms A. Kayser-Attuil

MALTA

-

REPUBLIC OF MOLDOVA

Ms T. Pârvu

Mr S. Mihov

Mr V. Lapusneanu

Ms L. Ilieş

Mr L. Apostol

MONACO

Mr G. Revel

MONTENEGRO

Mr Z. Pazin

Ms D. Popovic

NETHERLANDS

Ms S. de Groot

NORWAY

Ms A. Helle

Mr Y. O. Hvoslef

POLAND

Ms M. Kaczmarska

Ms K. Bralczyk

PORTUGAL

Mr P. Neves Pocinho

ROMANIA

Mr C. Urse

Mr D. Dumitrache

RUSSIAN FEDERATION

Mr A. Alekseev

Mr V. Egorov

Ms M. Molodtsova

Mr S. Kovpak

Mr A. Fedorov

Mr V. Ermakov

Ms N. Zyabkina

Mr P. Ulturgashev

SAN MARINO

Ms B. Para

Ms M. Bovi

SERBIA

Mr R. Milikić

Ms V. Radonjić-Rakić

Ms K. Potic

SLOVAK REPUBLIC

Mr M. Babicz

Mme K. Čahojová

SLOVENIA

Mr H. Hartman

M. L. Bembič

SPAIN

Mr L. Tarin Martin

SWEDEN

Mr C.-H. Ehrenkrona

Ms S. Finnigan

SWITZERLAND

Mr B. Gubler

“THE FORMER YUGOSLAV

REPUBLIC OF MACEDONIA”

Mr T. Pavloski

Mr Z. Barbutov

TURKEY

Mr R.E. Soysal

Ms N. Erdem-Ari

Ms S. Birand Cınar

Ms S. Karabacak

Mr S. Dalyan

Ms N. Yamali

UKRAINE

Mr M. Kononenko

Ms O. Pasheniuk

UNITED KINGDOM

Mr M. Johnson

Ms K. Jones

*

* *

EUROPEAN UNION

Mr G.C. Bruno

*

* *

A. General items

Item a.

Agenda and approbation of the Order of Business

Decisions

The Deputies

1. decided to add the case of Centro Europa 7 s.r.l. and Di Stefano against Italy;

2. approved the order of business accordingly revised.

* * *

Item b.

Preparation of the next Human Rights meetings

The preliminary indicative list of cases to be included in the draft order of business of the 1208th meeting will be issued on 26 June 2014. Delegations are invited to indicate whether they wish to add cases for the 1208th meeting.

Delegations are also referred to the revised Appendix 3 “Cases already listed for detailed examination at future DH meetings by earlier decisions of the Committee”.

Decision

The Deputies took note that an indicative list of cases to be included in the draft order of business of the 1208th meeting, together with the time-table for the preparation of that meeting, will be issued on 26 June 2014.

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

Case

State

Judgment final on

Violation

Action required

Link to the last decision

1

12

MANUSHAQE PUTO AND OTHERS

DRIZA GROUP

ALBANIA

17/12/2012

02/06/2008

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 Court, in the pilot judgment Manushaqe Puto and others, requested the setting-up of an effective compensation mechanism before 17 June 2014.

Follow-up to the decision adopted at the 1193rd meeting and assessment of the progress achieved in the implementation of the action plan presented by the authorities at the last examination of the case.

1193rd meeting

March 2014

2

15

MAHMUDOV AND AGAZADE GROUP

AZERBAIJAN

18/03/2009

Violation of right to freedom of expression, arbitrary application of law.

Follow-up to the

decision adopted at the 1193rd meeting.

1193rd meeting

March 2014

3

20

NAMAT ALIYEV GROUP

AZERBAIJAN

08/07/2010

Various irregularities in the context of the 2005 elections and lack of safeguards against arbitrariness.

Follow-up to the

decision adopted at the 1193rd meeting.

1193rd meeting

March 2014

4

25

M.S.S.

BELGIUM AND GREECE

21/01/2011

Expulsion of an asylum seeker from Belgium to Greece.

Follow-up to the decision adopted at the 1186th meeting

1186th meeting

December 2013

5

30

AL HUSIN

BOSNIA AND HERZEGOVINA

09/07/2012

Potential violation of Article 3 of the Convention in the event of the applicant’s deportation to Syria.

Proposal to transfer this case under the standard procedure.

1150th meeting

September 2012

No.

Page

Case

State

Judgment final on

Violation

Action required

Link to the last decision

6

32

D.H. AND OTHERS

CZECH REPUBLIC

13/11/2007

Discrimination in the enjoyment of the applicants’ right to education due to their assignment to special schools (schools for children with special needs including those suffering from a mental or social handicap) between 1996 and 1999, on account of their Roma origin (violation of Article 14 in conjunction with Article 2 of Protocol No. 1).

Follow-up to the decision of 1186th meeting and assessment of the updated action plan to be submitted.

1186th meeting

December 2013

7

35

M. GROUP

GERMANY

10/05/2010

Unlawful extension or imposition of “preventive detention” on the basis of retroactive legislative changes

In the light of the measures taken, proposal to transfer the group to standard procedure

1136th meeting

March 2012

8

39

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 1186th meeting.

1186th meeting

December 2013

9

42

KALUCZA

HUNGARY

24/07/2012

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

In the light of the developments, proposal to transfer the case to standard procedure

1172nd meeting

June 2013

10

44

TORREGGIANI AND OTHERS

SULEJMANOVIC

ITALY

27/05/2013

06/11/2009

Inhuman and degrading treatment of the applicants due to imprisonment in inadequate conditions, particularly overcrowding. Pilot judgment setting a deadline of 27/05/2014 for the introduction of a remedy or combination of effective remedies.

Follow-up to the decision adopted at the 1193rd meeting (March 2014) and assessment of the progress achieved in the implementation of the pilot judgment.

1193rd meeting

March 2014

11

47

CENTRO EUROPA 7 S.R.L. AND DI STEFANO

ITALY

07/06/2012

Impossibility for the applicant company to operate in the television broadcasting sector between 1999 and 2009, due to deficiencies in the legislative framework adopted to re-allocate frequencies in this sector and to ensure effective media pluralism (violations of Article 10 and Article 1 of Protocol No. 1).

To urge the Italian authorities to provide information on the measures taken or envisaged for the implementation of the judgment, in form of an action plan or report.

First examination

No.

Page

Case

State

Judgment final on

Violation

Action required

Link to the last decision

12

48

GRZELAK

POLAND

22/11/2010

Discrimination against a non-believer pupil, due to the absence of a mark for “religion/ethics” in consequence of the failure to provide alternative ethics classes.

Assessment of the last information submitted and proposal to adopt a final resolution.

1186th meeting

December 2013

13

50

DZWONKOWSKI GROUP

POLAND

12/07/2007

Ill-treatment inflicted by the police - between 1997 and 2002 - and lack of effective investigation in this respect (substantive and procedural violations of Art. 3).

Proposal to transfer this group under the enhanced procedure in the light of the recent judgment in the Przemyk case.

First examination in the context of the new working methods

14

51

ASSOCIATION “21 DECEMBRE 1989” GROUP

ROMANIA

28/11/2011

Ineffectiveness of criminal investigations into the violent crackdown on anti-governmental protests which surrounded the fall of the communist regime in Romania (procedural violations of Article 2); absence of sufficient safeguards in the Romanian legislation applied to secret surveillance measures based on national security grounds (violation of Article 8).

Assessment of the latest measures adopted by the authorities, presented in the revised action plan of 3 April 2014, particularly in the light of the requirement to hold independent investigations resulting from the European Court’s judgments

1157th meeting

December 2012

15

54

ANANYEV AND OTHERS

RUSSIAN FEDERATION

10/04/2012

Structural problem highlighted by the European Court, applying the pilot-judgment procedure: poor conditions of pre-trial detention in the remand centres under the authority of the Ministry of Justice (Article 3) and lack of an effective remedy in this respect (Article 13).

To take stock of the measures envisaged in respect of the setting up of effective domestic remedies with preventive and compensatory effects.

1164th meeting

March 2013

No.

Page

Case

State

Judgment final on

Violation

Action required

Link to the last decision

16

58

MIKHEYEV GROUP

RUSSIAN FEDERATION

26/04/2006

Torture or inhuman/degrading treatment in police custody with a view to extracting confessions and lack of effective investigations (substantial and procedural violations of Article 3); arbitrary and/or unacknowledged detention in police custody (violation of Article 5§1); use in criminal proceedings of confessions obtained in breach of Article 3 (violation of Article 6§1) and lack of an effective remedy to claim compensation for ill-treatment (violation of Article 13).

To take stock of the measures taken so far and identify the outstanding issues.

1100th meeting

December 2010, p. 304

17

64

GARABAYEV GROUP

RUSSIAN FEDERATION

30/01/2008

Different violations related to extradition (Articles 3, 5, 13 and 34).

Indications under Article 46, notably to ensure effective protection against abduction and irregular transfer, as well as effective investigations into such allegations.

Assessment of the situation in the light of a new incident of alleged abduction

1193rd meeting March 2014

18

69

CATAN AND OTHERS

RUSSIAN FEDERATION1

19/10/2012

Violation of the right to education concerning children and parents from Moldovan/Romanian language schools in the Transdniestrian region of the Republic of Moldova (violation of Article 2 of Protocol No. 1 by the Russian Federation).

Follow-up to the decisions adopted at the 1186th and 1193rd meetings.

1186th meeting

December 2013

No.

Page

Case

State

Judgment final on

Violation

Action required

Link to the last decision

19

71

CYPRUS AGAINST TURKEY

TURKEY

10/05/2001

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

- property rights of the displaced persons: 1208th meeting (September 2014), in the light of all relevant facts or, in any event, at the latest at their DH meeting in March 2015

- Property rights of enclaved persons: 1201st meeting (June 2014)

- Missing persons: 1214th meeting (December 2014)

No examination proposed

Continuation of the debate, in accordance with the decision adopted at the 1172nd meeting (June 2013).

No examination proposed

1172nd meeting

June 2013

20

74

76

VARNAVA AND OTHERS

XENIDES-ARESTIS GROUP

TURKEY

18/09/2009

22/03/2006

23/05/2007

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

Continuous denial of access to property in the northern part of Cyprus and consequent loss of control thereof (Art. 1 Prot. 1). Violation of the right to respect for applicants' home in some cases (Art. 8).

Examination of the issue of payment of the just satisfaction.

1193rd meeting

March 2014

21

78

INCAL GROUP

GÖZEL AND ÖZER GROUP

ÜRPER AND OTHERS GROUP

TURKEY

09/06/1998

Violations of the right to freedom of expression

Taking stock of the measures already taken and identifying the outstanding questions

1100th meeting

December 2010, p. 405

No.

Page

Case

State

Judgment final on

Violation

Action required

Link to the last decision

22

83

OLEKSANDR VOLKOV

UKRAINE

27/05/2013

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

To note the progress achieved to comply with the indications given by the Court under Article 46 as regards the urgent individual measures.

1193rd meeting

March 2014

23

85

VYERENTSOV

UKRAINE

11/07/2013

Administrative conviction of the applicant for holding peaceful demonstration despite lack of law regulating the holding of public assemblies (Article 11 + 7); several violations of the right to a fair trial (Article 6§§1 + 3).

Follow-up to the decision adopted in March 2014, in particular concerning general measures.

1193rd meeting

March 2014

24

87

KAVERZIN

AFANASYEV GROUP

UKRAINE

15/08/2012

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

To take stock of the measures taken against ill-treatment and to identify the outstanding questions, in particular on the implementation of these measures in practice.

1172nd meeting

June 2013

25

90

MCKERR GROUP

UNITED KINGDOM

04/08/2001

Group of cases concerning action of the security forces in Northern Ireland in the 1980s and 1990s (Art. 2).

Take stock of the most recent action plans provided, in particular in the light of the indications given by the Court under Article 46 in the McCaughey and others judgment.

1086th meeting

June 2010,

p. 312

ALBANIA

Applications: 604/07, 33771/02

Judgments final on 17/12/2012, 02/06/2008

MANUSHAQE PUTO AND OTHERS

DRIZA GROUP

Enhanced procedure: Pilot judgment, complex problem

Reference texts:

Interim Resolution CM/ResDH(2013)115

Information document CM/Inf/DH(2011)36

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

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

Communications from Albania

Information on the preparation of the action plan (13/01/2014) DH-DD(2014)98;

Presentation of the action plan (10/03/2014) DH-DD(2014)365

Action plan (24/04/2014) DH-DD(2014)539

Updated action plan (20/05/2014) DH-DD(2014)677

Information submitted previously on this group of cases which can 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/ALB-Driza_fr.asp

Decision adopted at the 1193rd meeting (March 2014)

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 requested the setting-up of an effective compensation mechanism within 18 months, namely by 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 case of Eltari, the Court reserved the question of the application of Article 41. On 15/05/2014 the authorities confirmed the payment of sums covering the pecuniary damage awarded by the Court in the cases of Manushaqe Puto and Delvina. To date, several questions still remain open in the cases of Driza and Gjonboçari (for further details see the document H/Exec(2013)2).

General measures: In the framework of the supervision which it has exercised since 2007 of this group of cases, the Committee has called on the Albanian authorities on many occasions to take rapidly all necessary measures, without further delay, to execute the numerous final domestic decisions concerning the rights over property nationalised during the communist regime. A series of general measures have been identified for urgent adoption in order to achieve the establishment of an effective compensation mechanism:

• the establishment of a list of final decisions,

• the finalisation of the land valuation map,

• and then, on the basis of these elements, the calculation of the cost of the execution of the decisions, in order to be able to define the resources needed, to adopt the final execution mechanism, and to 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).

Given the failure to put in place essential measures, in June 2013 the Committee adopted an interim resolution (CM/ResDH(2013)115) and called on the Albanian authorities to attach the highest priority to the preparation of a comprehensive action plan capable of establishing, within the deadline set by the Court, an effective compensation mechanism, which takes account of the measures already identified with the support of the Committee.

In December 2013 (1186th meeting) the Deputy Minister of Justice assured the Committee of the political will and the commitment of the newly elected Government to adopt all necessary measures to set up a compensation mechanism, as required by the Manushaqe Puto pilot judgment.

Following consultations which took place in Tirana on 13-14 February 2014 between the authorities and the Department for the Execution of the judgments of the European Court the authorities submitted their action plan to the Committee on 24 February 2014 (see DH-DD(2014)98 and DH-DD(2014)539). The action plan sets out a comprehensive list of measures aimed at introducing an effective compensation mechanism by June 2015.

At its 1193rd meeting (March 2014) the Committee regretted that the deadline fixed by the pilot judgment would not be met but noted with satisfaction that the new government has set the outstanding issues amongst the priorities to be followed at the highest level. The authorities committed themselves to presenting an update on the progress achieved in the implementation of the action plan in due time for its examination by the Committee at its 1201st meeting (June 2014). The authorities submitted, on 24/04/2014, the action plan as formally adopted by the Albanian Council of Ministers and, on 15/05/2014, the expected update on its implementation.

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

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

21/05/2013

08/06/2011

07/10/2013

16530/06

ELTARI

08/03/2011

15/09/2011

10508/02

GJONBOÇARI 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

1201st meeting - Notes:

The action plan of 24 February 2014 is the first detailed document submitted by the Albanian authorities presenting a clear vision and strategy for setting up an effective compensation mechanism. As the Committee noted at its last examination of this group of cases (1193rd meeting, March 2014), the adoption of measures in this area is a key priority for the newly elected Government, and a monitoring mechanism reporting directly to the Prime Minister has been created to ensure its implementation.

This action plan was formally adopted by the Albanian Council of Ministers with minor changes to some early deadlines. As a result of its adoption it now has binding force. The information provided on its implementation so far is encouraging, as the measures planned for the period March-June 2014 have either been adopted or progress well. However, given the overall deadline foreseen for the implementation of an effective compensation mechanism (June 2015), the authorities should be encouraged to intensify their efforts with a view to reducing this time-frame as much as possible.

The main steps indicated in the action plan correspond to those identified as essential by the Committee and the Court. Accordingly, it is planned to settle the list of final decisions and identify a precise compensation bill; make an inventory of available State resources for compensation in-kind; to undertake institutional reform of the Agency for Restitution and Compensation of Property, which will play a key role in the future restitution and compensation process, in order to enhance its efficiency. Other legislative amendments in the area of property law are also foreseen. The action plan specifies the deadlines for implementation of each measure and the respective institutions in charge of their fulfilment.

The strategy pursued appears promising. However, it is crucial that the measures proposed are put into place as soon as possible3. In this respect, it should be noted that the following measures have been adopted:

    · extension of the operation time of the Agency for Compensation and Restitution of Property,
    · analysis of property legislation (entrusted to a dedicated working group),
    · creation of inter-ministerial working groups to identify State-owned property and land available for compensation in-kind,
    · finalisation of a pilot project to create a digital land registry which the competent agencies can access online;

Financing for the digitalisation of maps listing restitution and compensation decisions should be obtained from the EU in June 2014.

Decisions

The Deputies

1. welcomed the formal adoption by the Albanian Council of Ministers of the action plan for the establishment of an effective compensation mechanism, thereby rendering the action plan binding, and noted with satisfaction that the measures foreseen are being adopted in conformity with the previsions in that plan;

2. in view of the overall deadline foreseen for the implementation of this mechanism, strongly encouraged the authorities to intensify their efforts with a view to reducing this time-frame as much as possible;

3. invited the authorities to continue to keep the Committee regularly informed on the progress achieved in the implementation of the action plan.

AZERBAIJAN

Application: 35877/04

Judgment final on 18/03/2009

MAHMUDOV AND AGAZADE GROUP

Enhanced procedure: Complex problem

Reference texts:

Letter from the Chair of the Committee of Ministers (27/01/2014) DH-DD(2014)149

Interim Resolution CM/ResDH(2013)199

Information document CM/Inf/DH(2011)7

Action plan (26/02/2014) DH-DD(2014)276, (13/01/2014) DD(2014)50

Information previously submitted on this group of cases which can 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/AZE-ai2_en.asp

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

Opinion 692/2012 of the Venice Commission on the Draft Law on Protection from Defamation and other Legislative Provisions Regulating the Protection from Defamation in the Republic of Azerbaijan (14/10/2013)

CDL-AD(2013)024

Communication from the authorities (27/11/2013) DH-DD(2013)1293

Questions raised at the 1186th meeting (12/12/2013) DD(2013)1336

Information provided by the authorities in reply to these questions (27/12/2013) DD(2014)2

Additional information provided by the authorities in reply to these questions (06/01/2014) DD(2014)4

Observations of the Commissioner for Human Rights on Azerbaijan, CommDH(2014)10 (23/04/2014) and comments of the Azerbaijani authorities on the observations of the Commissioner

Decision adopted at the 1193rd meeting (March 2014)

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) and (in the Fatullayev case) to insufficient reasons invoked to justify defamation as regards some statements to the 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 violated 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: Important and targeted individual measures were adopted in these cases, leading to the closure of this question (for more details see the decision adopted at the 1128th meeting (November-December 2011).

General measures: The Committee considered that the execution of these judgments required mainly three main sets of measures to be taken by the Azerbaijani authorities relating to defamation, to prevent the arbitrary application of the legislation and to prevent violations of Article 6 §§1 and 2 similar to those found in the case Fatullayev (see also previous summaries of the status of execution, in particular in the Order of Business of the 1172nd, 1179th and 1186th meetings).

In the absence of any progress in the execution of the present judgments and in the absence of any information in response to the Committee’s repeated calls to receive further information, the Committee adopted Interim Resolution CM/ResDH(2013)199 at its 1179th meeting (September 2013).

The information submitted in response to the interim resolution was examined by the Committee of Ministers at its 1188th meeting on 15/01/2014.

As regards defamation, the Committee noted that necessary legislative work was continuing and welcomed the authorities’ commitment to continue the co-operation with the Venice Commission. However, the Committee expressed its serious concern that no timetable had been provided for the speedy adoption of this long overdue reform and noted further that the information provided did not alleviate the need to urgently adopt measures ensuring that prison sanctions may not be resorted to save in exceptional circumstances. Consequently, the Committee called on the Azerbaijani authorities to rapidly submit a timetable ensuring the swift adoption of all necessary measures.

As regards the complex problem of arbitrary application of other criminal laws to unjustifiably limit freedom of expression raised in the Fatullayev case, the Committee noted with interest that tangible information had now been provided, in particular indicating that new measures had been adopted to ensure the independence of judicial system and the training of both judges and prosecutors on the relevant requirements of the Convention and invited the Secretariat to present a detailed assessment.

The Azerbaijani authorities submitted a further revised action plan on 27 February 2014, just before the 1193rd meeting (March 2014) (DH). The action plan notably referred to a decision of the Plenum of the Supreme Court of 21 February drawing the attention of the lower courts to the Convention requirements in the area of defamation and highlighting, in line with the Committee’s above-mentioned decision, the necessity of ensuring that prison sentences be imposed only in exceptional circumstances. It also contained information on training and measures taken to improve the independence of the judiciary.

At the 1193rd meeting, where the Deputy Minister of Justice of Azerbaijan was also present following an invitation from the Chair, the Committee expressed regret that a more detailed examination of the revised plan was not possible due to its late submission and that no time-table had been presented for the adoption of the necessary legislative amendments of the legislation pertaining to defamation. It thus urged the authorities to submit this time-table in time for its examination at their June meeting (1201st meeting). Nonetheless, the Committee welcomed the above-mentioned decision of the Plenum of the Supreme Court of 21 February 2014 and noted with interest that a legislative proposal had been made by the Plenum on the same day to limit the imposition of prison sentences in defamation cases. The Committee invited the authorities, in co-operation with the Venice Commission, to ensure that the legislative changes necessary were rapidly adopted, sufficiently precise and fully in line with the Convention requirements. At the same time it noted with interest the training and awareness raising measures carried out and stressed the importance of continuing efforts to ensure that the Convention requirements are rapidly and fully integrated in the general practice of prosecutors and courts.

As regards the arbitrary application of other criminal legislation unduly limiting freedom of expression, the Committee instructed the Secretariat to complete, in close co-operation with the authorities, its assessment of the measures presented and detailed in the action plans submitted.

Recent reports and statements, notably by the Human Rights Commissioner and the Secretary General of the Council of Europe, have underlined continuing important problems in the exercise of freedom of expression in Azerbaijan. An important part of the freshly adopted Action Plan developed between the Council of Europe and Azerbaijan, launched in Baku on 20/05/2014, is devoted to the improvement of the protection of freedom of expression, including by preventing arbitrary application of domestic law.

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

1201st meeting - Notes:

Since January 2014 and due to the importance attached to the speedy adoption of the long overdue legislative reform regarding defamation, the Committee’s attention has focused on the different violations of Article 10. The recent developments cited above (see status of execution) suggest a need for heightened scrutiny of the situation as compared to that suggested by the basically positive information provided at the last meeting. Such scrutiny would also seem to be required by a recent (although not yet final) judgment of the European Court of Human Rights (Ilgar Mammadov, judgment of 22 May 2014, in particular, in view of the violations of Article 18 taken in conjunction with Article 5).

Against this background, it is a welcome development that the protection of freedom of expression and the prevention of arbitrary application of domestic law (including the strengthening of the independence of the judiciary) figure among the priorities in above-mentioned new Council of Europe Action Plan for Azerbaijan. These parts of the Action Plan now deserve priority attention.

The examination of the consequences to be drawn from the violations of Articles 6§1 and 6§2 will be resumed in due course.

A. As regards defamation

Even if the measures reported so far are in principle positive are positive (in particular, the training efforts and the recent initiatives of the Plenum of the Supreme Court to ensure that the legislation pertaining to defamation and court practice are fully brought into line with the Convention requirements), the recent developments suggest that major concerns remain:

- First of all, the Plenum’s decision of 21 February drawing the attention of the lower courts to the Convention requirements in the area of defamation needs rapid and visible integration in courts’ and prosecutors’ practice to overcome any “chilling effect” on freedom of expression of the present system. It is thus important to organise rapidly further training activities for judges and prosecutors based on the Plenum’s decision and covering topics such as the scope of the legitimate exercise of freedom of expression and the proportionality of sanctions or other responses to an abusive exercise of this right, whether in the context of civil or criminal proceedings. To facilitate the evaluation of progress made, continued information on court cases involving defamation, in particular cases of criminal convictions (including sanctions imposed) would be of great importance. In addition, and in the light of the Plenum’s reasoning on the importance of the proportionally of sanctions, it would be useful to receive information on awards of damages in civil defamation cases. Information would also appear necessary on possible guidelines of the Prosecutor General to ensure the adaptation of prosecutor practice to Convention requirements.

It is a source of serious concern that no information on the implementation of the Supreme Court’s resolution among judges and prosecutor’s has been received since the draft order of business.

- A further source of serious concern is that, despite the Committee’s repeated calls and the engagements made, no time-table has been presented for the necessary legislative changes required to ensure that the legislation pertaining to defamation is sufficiently precise and fully in line with the Convention requirements. In this context, the proposal of the Plenum of the Supreme Court on 21 February 2014 to Parliament requires special attention as it retains the possibility to impose prison sentences in cases of “defamation for having committed a serious crime” without proposing further detail (Article 147.2). In view of the recent developments and the time elapsed since this problem was first revealed, the adoption of the necessary changes is becoming urgent. Considering the nature of the problems and the extensive case-law of the Court available to guide continued legislative work, it would appear reasonable to expect decisive progress before the end of 2014.

The situation highlights the importance of continued co-operation with the Secretariat and the Venice Commission. It is thus an additional source of serious concern that there has been no information confirming a resumption of this co-operation.

B. As regards the arbitrary application of criminal legislation to unjustifiably limit freedom of expression

The present problem of the arbitrary application of legislation has so far been considered to call for measures in a number of areas (notably, measures to improve the coherence of practices through training and improved guidance from the superior courts, improved judicial independence, better legislative framework, etc.). The recent developments also suggest that, in addition to the other aspects already dealt with and presented below, the judiciary’s relation to the prosecutor service needs to be addressed.

In accordance with the Committee’s instruction at the last DH meeting in March 2014, the Secretariat has completed, in co-operation with the authorities, a more detailed assessment of the measures taken.

It is thus noted that information on training efforts has been contained in the different action plans received and that the Deputy Minister of Justice presented, in March 2014, extensive information on the measures taken and under consideration to improve judicial independence. In addition, the initiative of the Plenum of the Supreme Court, even if not directly addressing the present problem of arbitrary application of other criminal laws, is a welcome initiative to provide guidance and improve the coherence of judicial practice.

The initial and continuing training programs and activities developed for judges are thus noted with interest but their effects are yet difficult to evaluate. It would, however, appear of great importance that these programs continue and are reinforced (cf also the similar problem raised in the Namat Aliyev group of cases and the comments with respect to the implementation of the recent decision of the Plenum of the Supreme Court). In this context, further information on more specific programs aimed at preventing the arbitrary application of the law would be helpful. Information about the possible inclusion of prosecutors in such programs would also be of interest.

Additional guidelines from the Supreme Court in this area could also make a useful contribution to prevent the arbitrary application of law. Such guidance from the Office of the Prosecutor General would also appear necessary.

As regards judicial independence, the measures referred to are identical to those examined in the context of the Namat Aliyev group of cases.

Extensive information has been submitted, notably by the Deputy Minister of Justice at the last DH meeting in March 2014, as regards the efforts made to improve the competence and independence of judges, including through better procedures for the initial appointment of judges, improved in-service training, improved independence of the bodies responsible for the administration of the judicial system and the system of judicial discipline and largely improved working conditions (including high standard court houses, generalised access to modern information technologies, greatly improved salaries etc.).

As regards the two main new bodies referred to as responsible for the functioning of the judicial system and the system of judicial discipline - the Judicial Legal Council and the Judges Selection Committee - it is noted, however, that both were set up in 2004 and that this development did not prevent the violations in the Namat Aliyev group of cases in 2005 or in the Fatullayev case in 2007-2008. It is true that certain amendments were introduced in 2006, but these have not been specified.

It would therefore appear positive that amendments to the original texts of 2004 and 2006 have recently been made in the context of the joint Eastern partnership project on the reform of the judicial systems ensuring that the law today clearly recognises the competence of the Judicial Legal Council to ensure the independence of judges, in parallel to the similar competence of the President under the Constitution.

It appears that the authorities are considering possible further reforms taking into account the Eastern partnership project recommendations. Further recommendations include: a more transparent procedure for the nomination of the members of the Judicial Legal Council; an increased role of this Council as regards the appointment and promotion of judges (including clear criteria for judicial promotion); improved clarity about disciplinary responsibility; and the development of guidelines as regards what may constitute attempts to unduly influence judges and courts and as regards actions to be taken in such situations. In view of the recent developments described above, information is urgently awaited about the outcome of the continued reflection.

Conclusion: Progress appears to have been achieved on a number of points, but several questions of relevance as regards the effective prevention of the arbitrary application of the law, still need to be urgently addressed. Considering the nature of the present problem, it is thus of great importance that the authorities continue and reinforce their efforts and that the Committee keeps developments under close supervision.

In the pursuit of their efforts, the Azerbaijani authorities could be invited to take full advantage of the different co-operation and assistance programs organised or proposed by the Council of Europe notably in the context of the recently adopted Action Plan for Azerbaijan.

Decisions

The Deputies

1. in light of recent developments revealing continuing serious problems in the enjoyment of freedom of expression in Azerbaijan, underlined that this freedom constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress;

2. recalling the important directions given by the Plenum of the Supreme Court of 21 February 2014 regarding the requirements of freedom of expression in defamation cases, stressed the urgent necessity of special training and other measures to ensure that the well-established case-law of the European Court in this field becomes firmly anchored in the practice of judges and prosecutors;

3. stressed in this context, the importance, as also underlined by the Plenum of the Supreme Court, of ensuring that sanctions imposed, whether in the context of criminal or civil defamation proceedings, are not disproportionate and do not have a “chilling effect” on freedom of expression;

4. took note of the commitment of the authorities to bring forward the legislation on criminal defamation in early 2015, expressed concern at this delay, called for confirmation of the legislative time-table in writing and for the immediate resumption of co-operation with the Secretariat and the Venice Commission so that the legislation pertaining to defamation becomes sufficiently precise and fully in line with the Convention requirements;

5. as regards the problem of arbitrary application of other criminal legislation to unjustifiably limit freedom of expression, recalled the extensive information provided at the last Human Rights meeting as to measures adopted to improve the independence of judges and about the continuing reflection on the necessity of further measures;

6. nevertheless, having regard to the above-mentioned recent developments on the state of freedom of expression in Azerbaijan, urged the authorities to rapidly enhance their efforts to overcome this problem through further reforms, including by strengthening judicial independence vis à vis the executive and prosecutors (taking into account the Eastern partnership project recommendations), by further targeted training and by better practical guidance, notably from the Supreme Court and the General Prosecutor’s Office;

7. strongly encouraged the authorities to take full advantage of the different co-operation and assistance programmes organised or proposed by the Council of Europe, notably in the context of the recently adopted Action Plan for Azerbaijan;

8. expressed serious concern with the lack of substantial information from the authorities of Azerbaijan and with the lack of progress in implementing the judgments;

9. instructed the Secretariat to submit outstanding questions to the authorities of Azerbaijan no later than 30 June 2014 for their response no later than 31 July 2014;

10. decided to resume consideration of the case at their 1208th meeting (September 2014) (DH), and in the absence of tangible information, instructed the Secretariat to prepare a draft interim resolution for consideration at that meeting.

AZERBAIJAN

Application: 18705/06

Judgment final on 08/07/2010

NAMAT ALIYEV GROUP

Enhanced procedure: Complex problem

Reference texts:

Communications from Azerbaijan

Consolidated Action Plan (27/02/2014) DH-DD(2014)277rev,

Communication on the Namat Aliyev group (02/12/2013) DH-DD(2013)1306

Action plan (Khanhuseyn Aliyev case) (03/10/2012) DH-DD(2013)821

Action plan (Nadir Orujov case) (04/07/2013) DH-DD(2013)822

National Program for Action to raise effectiveness of the Protection of Human Rights and Freedoms in the Republic of Azerbaijan (27/12/2011) DH-DD(2012)260

Joint opinion on the proposed amendments at the Electoral Code of the Republic of Azerbaijan by the Venice Commission and OSCE/ODIHR, adopted by the Venice Commission at its 75th plenary session (13-14 June 2008), doc CDL-AD(2008)011

Parliamentary Assembly, Resolution 1917(2013) “The honouring of obligations and commitments by Azerbaijan” and report by the Monitoring Committee (Doc. 13084)

Decision adopted at the 1193rd meeting (March 2014)

Case description: These cases concern various violations of the right to free elections (Article 3 of Protocol No. 1) of the applicants (members of the opposition parties or independent candidates) in that the electoral commissions and the domestic courts have in an arbitrary manner and without motivation and / or through procedures that did not afford safeguards against arbitrariness:

- rejected complaints regarding irregularities or breaches of electoral law (case Namat Aliyev);

- cancelled the registration as a candidate (sub-group Orujoc consisting of the cases Orujov, Khanhuseyn Aliyev, Abil and Atakishi cases) or the election (sub-group Kerimova consisting of the cases Kerimova, Mammadov (No. 2), and Hajil) of the applicants;

and that the Constitutional Court annulled the elections in the electoral constituencies of certain applicants without sufficient and relevant reasons, without affording procedural safeguards to the parties (including the inability to participate in the hearing) and without any transparency (case Kerimli and Alibeyli).

All the cases concern the parliamentary elections of November 2005.

With regard to the decisions of the electoral commissions (constituency electoral commissions and central electoral commission (“CEC”), the Court, in particular, found the following irregularities:

- the applicants’ complaints and evidence were dismissed without motivation;

- the statements and witness testimony against the applicants were accepted without a proper examination to determine their truthfulness and credibility (see in particular the Namat Aliyev case and the sub-group Orujov);

- lack of independent examination and reasoning in the decisions cancelling the applicants’ registration as candidates or their election;

- the applicants’ lack of participation in the hearing (see in particular the Orujov sub-group).

With regard to the decisions of the domestic courts (including the Supreme Court), the Court, in particular, found the following shortcomings:

- refusal to examine evidence submitted failure to take steps ex officio to clarify outstanding issues owing to excessive formalism stemming from the civil procedure rules (see in particular Namat Aliyev case);

- the domestic courts merely and simply reiterated the findings made by the electoral commissions;

- the applicants did not have sufficient time to prepare their defence in the expedited procedure;

- erroneous application of the electoral law.

Status of execution: Individual measures: Since the first examination of this group of cases at the 1179th meeting (September 2013), the Committee concluded that it was not possible to eliminate the effects of the violations otherwise than by the just satisfaction awarded by the Court as the elections of November 2005 had been completed and their results confirmed as final (see along the same lines the European Court’s findings in its decision of 09/12/2010 to strike out of the list the applications in the Gambar and others case).

General measures: A detailed assessment of the measures expected to address the Court’s findings was made in the Notes of 1179th meeting.

On the basis of this assessment, the Committee underlined the importance, in every democratic society, of an electoral system containing remedies to prevent arbitrariness and found that the main measures presented by the authorities, namely the training and awareness-raising activities put in place for the members of the electoral commissions, did not alone respond to the findings of the Court in particular to those concluding that the procedures before the electoral commissions and the national courts did not afford safeguards against arbitrariness.

The Committee invited the authorities to provide, as a matter of urgency, a consolidated action plan with the measures taken or underway, including legislative or statutory, to put in place such safeguards.

Just before the meeting of December 2013 (1186th meeting), the authorities submitted a communication containing notably information on the Legal Judicial Council in charge of all questions related to the carrier of the judges and on the Judicial Selection Committee responsible for the appointment of judges as well as on certain changes in the appeal procedure in electoral matters. The Committee instructed the Secretariat to rapidly make a detailed evaluation of this information, in close co-operation with the authorities.

Following the decision of December 2013, a series of bilateral consultations have been held between the Azerbaijani authorities and the Secretariat with a view to the submission of a comprehensive action plan on this group of cases. This action plan was submitted by the Azerbaijani authorities on 27/02/2014 and provided extensive information on the state of the law as regards electoral commissions and further details on measures aimed at improving judicial independence and training. The Committee expressed regret that it was submitted so shortly before the March meeting that no detailed assessment thereof was possible. It instructed the Secretariat to make rapidly a detailed evaluation in co-operation with the authorities in order to allow a thorough examination of the important questions raised by the present group of cases at their 1201st meeting.

Application

Case

Judgment of

Final on

18705/06

NAMAT ALIYEV

08/04/2010

08/07/2010

16511/06

ABIL

21/02/2012

21/05/2012

18469/06

ATAKISHI

28/02/2012

28/05/2012

6984/06

HAJILI

10/01/2012

10/04/2012

18475/06+

KERIMLI AND ALIBEYLI

10/01/2012

04/06/2012

20799/06

KERIMOVA

30/09/2010

30/12/2010

19554/06

KHANHUSEYN ALIYEV

21/02/2012

21/05/2012

4641/06

MAMMADOV No. 2

10/01/2012

10/04/2012

4508/06

ORUJOV

26/07/2011

26/10/2011

1201st meeting - Notes:

The Secretariat has now examined the comprehensive action plan submitted on 27/02/2014. Its assessment is presented below.

It is recalled at the outset that the present problem of arbitrary application of legislation calls for measures in a number of areas (notably measures to improve the coherence of practices through training and improved guidance from the superior courts, improved judicial independence, better legislative framework, etc.).

As regards the functioning of electoral commissions

The information provided regarding the handling of complaints by electoral commissions indicates that a number of new legislative texts and instructions have been adopted since the 2005 violations4.

The changes referred to have aimed at improving the regulatory framework of the functioning of the different electoral commissions and their capacity to rapidly and efficiently handle complaints (notably through the establishment of the new expert groups within the electoral commissions). In addition, reference has been made to extensive training of the members of electoral commissions, including as regards the requirements of the Convention.

The information submitted is extensive. However, even if the general thrust of the reforms and of the extensive training activities referred to appears positive, an assessment is hampered by the frequent absence of indications (with few exceptions)5, as to what has changed, and why, as compared to the situation criticised in the Court’s judgments. It is essential to receive a detailed impact assessment of the changes and how they may prevent new similar violations6.

As regards the functioning of the judiciary

Training of judges

The initial and continuing training programs and activities developed for judges are noted with interest but their effects are yet difficult to evaluate. It would, however, appear of great importance that these programs continue and are reinforced (cf also the similar problem raised in the Mahmudov group of cases). In this context, further information on more specific programmes, aimed at preventing the arbitrary application of the laws would be helpful.

Additional guidance

Additional guidelines from the Supreme Court on this particular subject, as developed in the area of freedom of expression (see the Mahmudov group of cases) could also make a useful contribution to prevent the arbitrary application of the law.

Independence

The measures referred to, in this respect, are identical to those examined in the context of the Mahmudov and Agazade group of cases.

Extensive information has been submitted, notably by the Deputy Minister of Justice at the last DH meeting in March 2014, as regards the efforts to improve the competence and independence of judges, including through better procedures for the initial appointment of judges, improved in-service training, improved independence of the bodies responsible for the administration of the judicial system and the system of judicial discipline as well as largely improved working conditions (including higher standard court houses, generalized access to modern information technologies, greatly improved salaries etc.).

As regards the two main new bodies referred to as responsible for the functioning of the judicial system and the system of judicial discipline - the Judicial Legal Council and the Judges Selection Committee - it is noted, however, that both were set up in 2004 and that this development did not prevent the violations in the Namat Aliyev group of cases in 2005 or in the Fatullayev case in 2007-2008. It is true that certain amendments were introduced in 2006, but these have not been specified.

It would, however, appear positive that amendments to the original texts of 2004 and 2006 have recently been made in the context of the joint Eastern partnership project on the reform of the judicial systems ensuring that the law today clearly recognises the competence of the Judicial Legal Council to ensure the independence of judges, in parallel with the similar competence of the President under the Constitution.

It appears that the authorities are considering possible further reforms taking into account the Eastern partnership project recommendations. Further recommendations include a more transparent procedure for the nomination of the members of the Judicial Legal Council; an increased role of this Council as regards the appointment and promotion of judges (including clear criteria for judicial promotion); improved clarity about disciplinary responsibility; and the development of guidelines as regards what may constitute an attempt to unduly influence judges and courts and as regards actions to be taken in such situations. In light of recent developments casting doubt on judicial independence, similar to the independence issues described in the Mahmudov and Fatullayev judgments, it would appear urgent that further measures are adopted to strengthen judicial independence.

Better legislative framework: Procedural safeguards against arbitrariness

It is recalled that the excessive formalism in the application of the Code of Civil Procedure was also at the origin of the violations found in this group of cases. The fact that disputes in electoral matters are now dealt with under the new, less formalistic, Administrative Code adopted in 2009 is thus noteworthy. It is not clear, however, how the changes presented fully remedy the previous shortcomings.

Constitutional Court

No particular information has been submitted with respect to the violations established in relation to the handling of appeals by the Constitutional Court. Such information is thus expected.

Global assessment

Considering the nature of the problem at issue, it is of great importance that the authorities provide information on the outstanding issues and continue the efforts engaged to ensure that the problem of the arbitrary application of the law by electoral commissions and courts is fully solved and that the Committee continues to keep developments under close supervision.

In the pursuit of their efforts, the Azerbaijani authorities could be invited to take full advantage of the different co-operation and assistance programs organised or proposed by the Council of Europe.

Decisions

The Deputies

1. stressed the need to rapidly overcome the important problem of the arbitrary application of legislation and of the absence of procedures affording adequate safeguards against arbitrariness and that this requires remedial action in a number of areas;

2. recalled the extensive information submitted at the last DH meeting (March 2014) as regards measures adopted to improve the independence of judges and that the necessity of further measures was under consideration;

3. strongly encouraged the authorities to rapidly undertake further reforms, taking into account the recommendations made in the context of the Eastern partnership project;

4. noted with interest that judicial review in electoral matters is, since 2009, no longer governed by the rigid rules of the Code of Civil Procedure, but by the new, less formalistic, Code of Administrative Procedure and invited the authorities to provide a more detailed explanation of the way in which the new Code is meant to resolve the problems revealed by the Court’s judgments;

5. noted the potential of targeted practical guidance from the Supreme Court, in line with the approach of its decision of 21 February 2014 regarding the Convention requirements in the area of defamation, and stressed the importance of continued training efforts to ensure the efficiency of judicial review;

6. regretted that no information has been provided regarding the shortcomings established in the proceedings before the Constitutional Court and urged the authorities to rapidly submit this information;

7. as regards the functioning of the electoral commissions, expressed regret that the information submitted, although extensively describing the present situation, does not allow a comprehensive evaluation of progress made as compared to the situation criticised by the Court and invited the authorities to submit, without delay, a detailed impact assessment of the changes and how they may prevent new similar violations;

8. strongly encouraged the authorities, in the pursuit of their efforts to resolve the problems raised by the present group of cases, to take full advantage of the different co-operation and assistance programmes organised or proposed by the Council of Europe, notably in the context of the recently adopted Action Plan for Azerbaijan;

9. in view of the importance of the outstanding issues, urged the authorities to submit the fullest information as to the progress made in the adoption of the different measures still required, within the time-limit for furnishing information for the next DH meeting, namely 3 July 2014;

10. decided, accordingly, to resume consideration of these questions at the 1208th meeting (September 2014) (DH).

BELGIUM AND GREECE

Application: 30696/09

Judgment final on 21/01/2011

M.S.S.

Enhanced procedure: structural and complex problem

Reference texts:

Memorandum on General measures regarding asylum procedure and conditions of detention for the execution by Greece of the judgments of the European Court H/EXEC(2014)4rev

Information document CM/Inf/DH(2012)19

Information document CM/Inf/DH(2012)26 (measures in response to the violation of Article 13 by Belgium)

Communications from Belgium

Communications which can 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/BEL-ai_fr.asp

(03/06/2014) DH-DD(2014)725

Communications from Greece

(03/04/2014) DH-DD(2014)470; (08/11/2013) DH-DD(2013)1225

Previous communications which can 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/GRC-MSS_fr.asp

Communications by the United Nations Special Rapporteur on the human rights of migrants rights on his visits to Italy and Greece (cases of Hirsi Jamaa v. Italy" and the group of cases of "M.S.S. v. Greece" (12/07/2013)

DH-DD(2013)1289

Communications from NGOs

From HLHR - Hellenic League for Human Rights) (12/11/13) DH-DD(2013)1277

From Open Society Justice Initiative (31/03/2014) DH-DD(2014)488

From Greek Council for Refugees (28/04/2014) DH-DD(2014)591

From ICJ and ECRE (22/05/2014) DH-DD(2014)721

Communication from the UNHCR (21/05/2014) DH-DD(2014)715

Decision adopted at the 1186th meeting (December 2013)

Case description:

Violations found against Greece:

Degrading treatment suffered by the applicant (an Afghan national who entered the European Union through Greece and was fingerprinted there, then arrived in Belgium and applied for asylum, was then transferred back to Greece under the Dublin II Regulation) due to the conditions under which he was detained at the holding centre next to Athens International Airport in 2009 (overcrowding, lack of bed/mattress, insufficient ventilation, no regular access to toilets or sanitary facilities, no outdoor exercise (violation of Article 3).

Regarding the conditions of detention, it is recalled that similar issues as those in question in the M.S.S. judgment were raised in other cases (S.D., Tabesh, A.A., Kaja, Efremidze, Ahmade; Horshill, Chkartishvili, Lin) concerning conditions of detention in different detention facilities; additional issues were raised more recently in the Rahimi, Mahmundi and others and R.U. judgments, the first concerning a foreign unaccompanied minor, the second concerning also a pregnant woman); these are examined within the framework of the M.S.S. case, including violation of Article 13 on account of lack of effective remedy to complain about conditions of detention (R.U., Rahimi, Mahmundi and others judgments). It is recalled that the measures taken with respect to the violations of Article 5 found in those cases are examined separately (group S.D.).

Situation incompatible with Article 3 on account of the applicant's living conditions due to the authorities' inaction regarding the situation in which he had found himself for several months: living on the street, without recourse or access to sanitary facilities and without means of providing for his essential needs (violation of Article 3).

Finally, the case concerns shortcomings in the Greek authorities' examination of the applicant's asylum request and the risk he faced of being returned directly or indirectly to his country of origin without any serious examination of the merits of his asylum application and without having access to an effective remedy (violation of Article 13 taken in conjunction with Article 3).

Violations found against Belgium:

The transfer of the applicant by Belgium to Greece under the Dublin II Regulation exposed him to the risks arising from deficiencies in the asylum procedure in Greece (violation of Article 3).

The applicant's expulsion, knowingly brought about by the Belgian authorities, exposed him to detention and living conditions in Greece that amounted to degrading treatment (violation of Article 3).

The applicant did not have at his disposal a domestic remedy whereby he might obtain both the suspension of the measure at issue and a thorough and rigorous examination of the complaints arising under Article 3 (violation of Article 13 in conjunction with Article 3).

Status of execution: Individual measures: At their 1144th meeting (June 2012), the Deputies noted that as from 9 May 2012 the applicant enjoys in Belgium refugee status and consequently decided to close the examination of the individual measures.

General measures: On 20 July 2011, the Belgian and the Greek authorities provided their respective action plans. At their 1144th meeting, the Deputies endorsed the assessment presented in the memorandum prepared by the Secretariat (CM/Inf/DH(2012)19) containing a detailed assessment of the two action plans.

Concerning Belgium:

Having regard to the fact that Belgium stopped transferring asylum seekers to Greece and with regard, in general, to the measures adopted concerning the application of the sovereignty clause of the “Dublin II” Regulation, the Deputies decided at the 1144th meeting to close the examination of the general measures following the violations of Article 3 found against Belgium.

Concerning the general measures following the violation of Article 13, the Deputies took note (1150th meeting, September 2012) of positive developments observed in the recent case-law of the Aliens’ Appeals Board (CCE) (presented in document DD(2012)553). They also invited the Belgian authorities to answer the outstanding questions identified in document CM/Inf/DH(2012)26 (endorsed by the Deputies). On 20 February 2013, the Belgian authorities provided a revised action plan (DH-DD(2013)175), in which they indicated that they were holding consultations with a view to replying to these questions. At its 1186th meeting (December 2013) (DH), the Committee of Ministers “urged the Belgian authorities to inform now the Committee about the outcome of the consultations they have referred to with a view to replying” to these questions. No new information has been provided since then.

Concerning Greece:

Asylum procedure

At its two last examinations (June and December 2013), the Committee, bearing in mind that the effectiveness of the asylum system in Greece was expected to have a positive impact on conditions of detention and living conditions of asylum seekers, decided to focus on issues concerning the asylum procedure. In June 2013 (1164th meeting), while noting the efforts made to improve the asylum system, the Committee urged the Greek authorities to intensify their efforts with a view to accelerating the delayed reforms (in particular the functioning of the new Asylum Service) and to resolving practical problems regarding access to the asylum procedure and introduction of asylum claims while in detention. Finally, the Committee invited the Greek authorities to provide information on a number of issues (the functioning of the Asylum Service and the Appeals Authority, in particular staffing and training provided; the proportion of asylum requests granted or rejected and the asylum request processing time both in first and second instance; and the implementation of forced returns, including the measures taken to guarantee that the Xenius Zeus programme is carried out with full respect to the principle of non-refoulement).

In December 2013, the Committee noted with satisfaction that the three services established by law No. 3907/20011 (Asylum service, Appeals Authority, First Reception Centres) started operating on 7 June 2013. It instructed the Secretariat to make an assessment of the up-dated information regarding the new asylum procedure, provided by the Greek authorities in November 2013. Reiterating again that the effective functioning of the three new services would affect the conditions of detention and the living conditions of asylum seekers, the Committee decided to continue focusing its examination on the asylum procedure and invited the authorities to continue providing information in response to the issues raised at the 1164th and 1186th meetings.

In addition, the Committee decided to focus its forthcoming examination also on the conditions of detention. To this effect, it urged the Greek authorities to provide updated information on the conditions of detention as identified in memorandum CM/Inf/DH(2012)19 and in the Notes of the 1164th meeting.

Last, the Committee decided to consider the issue of the living conditions of asylum seekers in Greece at the latest at the 1214th meeting (December 2014).

The Greek authorities sent additional data on the operation of the new services on 3/4/2014 (see below in “Notes”). Since the issuing of the draft order of business, a new communication under Rule 9.2 was submitted to the Committee by the Greek Council for Refugees as well as the Greek authorities’ response thereto.

Application

Case

Judgment of

Final on

30696/09

M.S.S.

21/01/2011

Grand Chamber

1201st meeting - Notes:

Concerning Belgium:

Additional information is still awaited from the Belgian authorities on the only aspect of the case that is still under the Committee’s examination as far as Belgium is concerned, i.e. the general measures relating to the violation of Article 13. The outstanding questions concern the effectiveness of the remedy under the extremely urgent procedure before the Aliens’ Appeals Board (CCE) (see the decision adopted at the 1150th meeting (September 2012) (DH) and the memorandum CM/Inf/DH(2012)26, declassified at the same meeting). These questions focus in particular on:

    - the burden of proof of risk of treatment contrary to Article 3: The examples of case-law that the Secretariat was in a position to analyse show that the CCE requires the applicants to demonstrate, on the basis of very substantive elements, that they are at risk of personally sustaining serious damage difficult to redress. In M.S.S. however, the Court adverted to the impossibility for the applicant to demonstrate in concreto the irreparable nature of the damage done by the potential violation of Article 3, and held that excessively weighty demands were placed on the applicant regarding the evidence to prove the existence of the risk;
    - the timing of the assessment of the situation in the destination country: The CCE appears to assess this situation ex tunc (in view of the circumstances of which the State was or should have been aware at the time of the impugned decision) and not ex nunc (in view of all the elements in its possession when it examines the appeal, including in the light of new elements possibly given by the applicant);
    - the suspensive character of the remedy: The suspension appears to be granted only for cases where the claimant is deprived of liberty with a view to his/her deportation.

In this context, the attention of the Committee of Ministers should be drawn to a judgment of the Belgian Constitutional Court of 16 January 2014 (No. 1/2014) in which it held that the remedy under the extremely urgent procedure before the Aliens’ Appeals Board (CCE) is not effective within the meaning of Article 13 of the Convention (point B.8.6. of the judgment). The Constitutional Court held, notably, that the law does not guarantee that, when the CCE assesses the risk of a violation of Article 3 in the destination country, it makes this assessment ex nunc (see the second question above).

Therefore, it appears even more important that the Belgian authorities finally submit to the Committee of Ministers information in response to the questions asked and, in this context, that they present their analysis of the consequences of the Constitutional Court’s judgment on the execution of the M.S.S. judgment.

Finally, note should also be taken of the Josef v. Belgium judgment, delivered by the European Court on 27 February 2014. This judgment is not final on the day of the publication of the present order of business. In this judgment, the Court has, notably, taken into account the fact that, when seized of a remedy under the extremely urgent procedure, the CCE grants a suspension only for cases where the claimant is deprived of liberty (see the third question above).

Concerning Greece:

To date a significant amount of information has been received not only from the Greek authorities but also from NGOs. Furthermore, subsequent judgments belonging to the M.S.S. group of cases added new elements to the execution process. Against this background and in order to assist the Committee in its future assessment, the Greek authorities in the execution of the group of cases as well as all other actors involved, the Secretariat has prepared a document aimed at making a fresh stocktaking of all outstanding issues (doc. H/EXEC(2014)4).

With respect to the asylum procedure:

It is recalled that two asylum regimes co-exist since the establishment on 7/6/2013 of the three new services (Asylum service, Appeals Authority, First Reception Centres). Until the re-absorption of the backlog (i.e. applications lodged before 7/6/2013), such applications are examined by a committee composed of police officers and then by second instance committees. The main features of the asylum system –old and new- are presented in H/EXEC(2014)4.

The first data presented by the authorities, in response to the Committee’s December decision concerning the operation of the new asylum regime, are noteworthy and encouraging (see H/EXEC (2014)4, §§ 12 and 17). However, due to the brevity of the period covered (7/6/2013-28/2//2014), thorough conclusions cannot yet be drawn.

In addition, the reformed asylum procedure has attracted criticism (see the various communications from NGOs) and considerable concerns were voiced as regards the access to the asylum procedures in the entire territory.

Against this background, it appears that the implementation of measures concerning full access to the asylum procedure and thorough examination of applications could be assessed on the basis of the responses needed on the outstanding questions identified in H/EXEC(2014)4, part I.C. These responses could also enable the Committee to draw conclusions about access to the asylum procedure, about the way asylum applications are processed and, as necessary, about any adjustments to the procedure required.

With respect to conditions of detention7:

It is recalled that information had been provided by the Greek authorities regarding refurbishment and extension of certain border guard stations and holding facilities, projects for new detention facilities as well as about staffing.

According to the action plan and subsequent information provided, detention of persons who intend to apply for asylum should not exceed 25 days (time frame set out by law in order to start processing asylum applications upon the reception of the new arrivals). Registered asylum seekers can be detained up to eighteen months on the basis of Article 18 of the Directive 2005/85/EC (Article 13 of Presidential Decree 113/2013). Irregular migrants can be detained up to eighteen months on the basis of Article 76 of L.3386/2005 or on the basis of Article 30 of L. 3907/2011.

The key relevant actors (CPT, UNHCR, European Commission, Greek National Commission for Human Rights, NGOs that submitted communications) concur in that asylum-seekers and irregular migrants are detained for prolonged periods in various establishments (police stations, border guard stations and coast guard facilities), not suitable for long-term detention. The conditions of detention (even in detention centres designed specifically for migration) are described as substandard and falling short of Article 3.

In light of the above, it is now essential to receive from the authorities, without further delay, information on a comprehensive strategy for the improvement of conditions of detention. This strategy could usefully draw inspiration from the recommendations of Council of Europe’s specialised bodies (see the 2011 CPT Public Statement concerning Greece) and other relevant actors.

Information appears further necessary on outstanding issues identified in H/EXEC (2014)4 (§§ 28-35) on conditions of detention with a focus on detention of unaccompanied minors and other vulnerable groups (like pregnant women) and on the question of the remedy to complain about conditions of detention.

As regards the question of complaints made by unaccompanied minors after their release about the conditions in which they were detained, the Court considered recently that the national remedy aiming exclusively at obtaining compensation should be exhausted before lodging an application before it 8.

Decisions

The Deputies

Concerning Belgium

1. took note with satisfaction of the information provided by the Belgian authorities on the Law of 10 April 2014 containing several provisions regarding the procedure before the Aliens’ Appeals Board and the Council of State setting up a remedy which permits the suspension of the execution of a deportation measure as well as a thorough and rigorous examination of the complaints arising under Article 3;

2. instructed the Secretariat to assess this information in the light of the Court’s case law for the 1214th meeting (December 2014) (DH);

Concerning Greece

With respect to the asylum procedure

3. while noting that the data provided on the operation of the three new asylum services (Asylum service, Appeals Authority, First Reception Centres) are encouraging, stressed that, due to the brevity of the period covered (7/6/2013-28/2/2014), it is not yet possible to draw thorough conclusions;

4. strongly encouraged the Greek authorities to pursue their efforts to guarantee, without delay, full and effective access to the asylum procedure throughout the territory;

5. invited the authorities to respond to all outstanding questions noted in document H/EXEC(2014)4rev with a view to enabling the Committee to fully assess access to the asylum procedure and the way asylum applications are processed as well as with a view to facilitating the identification of the necessary adjustments to the asylum procedure;

With respect to the conditions of detention of asylum seekers and irregular migrants

6. noted the information provided by the authorities regarding the measures implemented to improve the conditions of detention in certain places of detention and the declaration by the authorities according to which they are elaborating a global strategy for the improvement of conditions of detention of asylum seekers and irregular migrants;

7. noted, however, the serious concerns expressed in numerous Rule 9.2 communications regarding the conditions in which asylum seekers and irregular migrants continue to be detained;

8. called upon the Greek authorities to submit, as soon as possible, the precise content of their global strategy for the improvement of conditions of detention, taking into account all the outstanding questions identified in document H/EXEC(2014)4rev and the recommendations of the Council of Europe’s specialised bodies and other relevant actors;

9. invited, further, the authorities to respond to the outstanding issues, identified in H/EXEC(2014)4rev, regarding the remedy to complain about conditions of detention;

10. recalling that the question of living conditions of asylum seekers (including unaccompanied minors) will be examined at their 1214th meeting (December 2014) (DH), decided to resume consideration of the issues regarding the asylum procedure and the conditions of detention at the latest at their DH meeting in March 2015.

BOSNIA AND HERZEGOVINA

Application: 3727/08

Judgment final on 09/07/2012

AL HUSIN

Enhanced procedure: Urgent individual measures

Reference texts:

Updated action plan (14/05/2013) DH-DD(2013)543

Action plan (24/08/2012) DH-DD(2012)746

Decision adopted at the 1150th meeting (September 2012)

Case description: The case concerns a potential violation of Article 3 of the Convention in the event of the applicant’s deportation to Syria. The case also concerns a violation of the applicant’s right to liberty and security on account of his detention for a certain period of time on security grounds before a deportation order had been issued against him (violation of Article 5§1). The applicant is a Syrian national and, as a foreign mujahedin who participated in the war in Bosnia and Herzegovina, was perceived as a threat to national security.

    Status of execution: Individual measures: At the time when the Court rendered its judgment in this case, the applicant was detained with the intention of deporting him to Syria on the basis of a deportation order dated 01/02/2011 (§32 of the judgment). As indicated by the European Court, the applicant’s deportation to Syria would violate Article 3 in the circumstances prevailing in that country (§54 of the judgment).

    In their action plan dated 24/08/2012, the authorities of Bosnia and Herzegovina indicated that the above-mentioned deportation order had been annulled and that a new deportation order had been issued on 15/03/2012. This new deportation order did not indicate any country to which the applicant could be deported. In their action plan, the authorities gave assurances that the applicant would not be deported to Syria in accordance with the findings of the Court in this case. It was indicated that the authorities were working on finding a safe third country that would accept the applicant.

In the updated action plan dated 14/05/2013, the authorities indicated that 27 countries in Europe as well as Jordan refused to admit the applicant on their territory. The authorities also indicated that the Aliens Service requested on 11/02/2013 the Ministry of Foreign Affairs to contact the authorities of a number of countries in the Middle East which might accept the applicant. The authorities stated that they were continuing to make efforts to find a safe third country.

    General measures: The provision of the 2008 Aliens Act which is at the origin of the violation was amended in October 2012. According to this amendment, it will only be possible to detain an alien on security grounds after a deportation order is issued.

Application

Case

Judgment of

Final on

3727/08

AL HUSIN

07/02/2012

09/07/2012

1201st meeting - Notes:

Individual measures: It is recalled at the outset that the Committee at its 1150th meeting (September 2012) welcomed the fact that the authorities of Bosnia and Herzegovina had rapidly given assurances that the applicant would not be deported to Syria.

In their updated Action Plan, the authorities set out the steps they have taken with a view to finding a safe third country that would accept the applicant. This is a positive development in view of the Committee’s above-mentioned decision in which it invited to the authorities to keep it regularly informed of such developments.

It is considered, in the light of the foregoing, that, although information is still awaited on any developments regarding the search for a safe third country for the applicant’s possible deportation, the applicant’s situation does not any longer call for the taking of urgent individual measures by the authorities of the respondent State. The Committee might therefore decide to continue its examination of this case under the standard procedure.

General measures: The legislative amendment, which will ensure that the detention of an alien on security grounds will only be possible after a deportation order is issued, is welcomed because this amendment is capable of preventing similar violations in the future.

Decisions

The Deputies

1. recalled the assurances given by the authorities of Bosnia and Herzegovina that the applicant would not be deported to Syria;

2. noted with satisfaction the efforts made by the authorities to find a safe third country to which the applicant could be deported and invited the authorities to keep the Committee informed of any developments in this respect;

3. welcomed the legislative amendment introduced to ensure that the detention of an alien on security grounds would only be possible after a deportation order was issued;

4. given that the applicant’s situation no longer calls for the taking of urgent individual measures by the authorities of the respondent State, decided to continue the examination of this case under the standard procedure.

CZECH REPUBLIC

Application: 57325/00

Judgment final on 13/11/2007

D.H. AND OTHERS

Enhanced procedure: Complex problem

Reference texts:

Information document CM/Inf/DH(2010)47

Communications from the Czech Republic

(17/01/2014) DH-DD(2014)117

Information on the implementation of the action plan (17/10/2013) DH-DD(2013)1133

Updated action plan (18/06/2013) – Information on the implementation DH-DD(2013)718

Communication from the authorities (26/11/2013) DH-DD(2013)1284

Consolidated action plan (16/11/2012) DH-DD(2012)1074

Updated action plan (25/04/2014) DH-DD(2014)541

Communications from NGOs

From Open Society Justice Initiative (27/11/2012) DH-DD(2012)1137

From Open society justice Initiative, COSIV, European Roma Rights Centre, Amnesty international and Liga Lydských Práv (13/11/2012) DH-DD(2012)1089

Communication from National Human Rights Institutions

Public Defender of Rights (14/04/2014) DH-DD(2014)569 and response of the authorities(13/05/2014)
DH-DD(2014)631

Decision adopted at the 1186th meeting (December 2013)

Case description: Discrimination in the enjoyment of the applicants' right to education due to their assignment to special schools (schools for children with special needs including those suffering from a mental or social handicap) between 1996 and 1999 on account of their Roma origin (Violation of Article 14 in conjunction with Article 2 of Protocol No. 1).

Status of execution: Individual measures: education in the Czech Republic is compulsory for all children from six to fifteen. The applicants are all older than fifteen and therefore are no longer in the compulsory schooling system. No further individual measure appears necessary.

General measures: Since 2005, when the judgment became final, the Czech authorities have transmitted several action plans and information documents which have been assessed by the Committee, notably in memorandum CM/Inf/(2010)47, as well as in a number of decisions encouraging an accelerated implementation of this judgment.

At its 1186th meeting (December 2013), the Committee welcomed the presence of the First Deputy Minister of Education, Youth and Sports, demonstrating the commitment and determination of the Czech authorities to execute this judgment and noted the information on the implementation of the consolidated action plan submitted in June, October and November 2013. The Committee underlined, that an increasing number of children with a “slight mental disability” were educated in mainstream classes but that according to surveys carried out by the authorities, the overall percentage of Roma pupils remained disproportionately high in programmes for pupils with a “slight mental disability”. In this respect, it invited the authorities to provide, in due time for the March 2014 meeting, additional information explaining further, inter alia, these statistical developments. While reiterating the importance of rapidly obtaining concrete results, the Committee encouraged the authorities to accelerate the implementation of the outstanding measures, in particular with regard to the revised diagnostic tools and the legislative amendments aimed at removing a possibility for short-term placement of pupils without a disability in classes or groups for pupils with disabilities, and to consider the adoption of interim measures. It also invited the authorities to provide updated information on the implementation of the consolidated action plan in due time for the June 2014 meeting, and decided to resume consideration of the case at that meeting.

In response, the authorities submitted preliminary information on 24/01/14 indicating that amendments to legislative Decrees adopted in September 2011 and the introduction of new diagnostic tests explained the statistical developments, in particular the number of pupils being integrated into mainstream classes. Those amendments (which the Committee noted in December 2011 appeared to be an important step aiming at the inclusion of Roma children in the education system) prevent the long-term placement of a pupil without a mental disability in a school or class designated for pupils with a mental disability. As a result, pupils have been re-diagnosed and transferred into mainstream education.

Representatives from the Department for the Execution of Judgments went to Prague on 20 March 2014 for bilateral consultations with the authorities in order to discuss the status of execution of this case and the information needed to respond to the concerns expressed by the Committee at its last examination of the case. Meetings were held with a Deputy Minister of Education, a Deputy Minister for Human Rights, in the Office of the Government, and with representatives from the Czech Schools Inspectorate, the National Institute for Education and the Agency for Social Inclusion. Following these bilateral consultations, the authorities submitted an updated action plan on 25 April for examination by the Committee at its 1201st DH meeting (June 2014).

Application

Case

Judgment of

Final on

57325/00

D.H. AND OTHERS

13/11/2007

Grand Chamber

1201st meeting – Notes

It appears from the revised action plan submitted by the authorities that progress has been made in the prevention of discriminatory practices against Roma pupils, in the introduction of safeguards against such practices and in the integration of pupils in mainstream education. However, even if the implementation of the action plan seems to continue at present without particular delay, progress is slow and the results on the ground are yet to be observed.

In particular, measures to eliminate the possibility of a short-term placement of "socially disadvantaged" pupils in groups / classes for pupils with "mild mental disability" (amendments to two decrees, point A of the Action Plan), originally scheduled for September 20139, have been delayed. They are presently announced for September 2014 and it is imperative that this deadline is met and that the Committee is immediately informed of any developments in this regard.

The implementation of new diagnostic tools has also taken longer than expected and is not yet finalised. In this respect, the Secretariat notes that the situation on the ground remains very worrying. Although statistical data on the transfer of pupils into mainstream classes does not show what percentage of pupils indicated in the given numbers are Roma, it is worrying to note that, after reassessment using new diagnostic tools implemented by the authorities, 6564 pupils out of 6713 (i.e. 97.8 %) remain enrolled in 2014 in special programs, without any explanation being advanced or any reasons being given for their retention in these programs, and without any measures being taken or envisaged to allow their situation to evolve favourably if possible. As for the 2.2% for whom the transfer to the mainstream education system was recommended in 2014, no information is provided on the follow-up to these recommendations or on the monitoring of the 463 pupils who did not respond to the call for reassessment.

These findings raise questions about the effectiveness of the new diagnostic tools, especially in terms of the overall percentage of Roma pupils in groups/classes for pupils with "mild mental disability" remaining disproportionately high (28.2%)10. In this regard, the Secretariat notes that, in her submission to the Committee of Ministers11, the Public Defender of Rights also expressed concerns about the lack of monitoring of pupils whose transfer to the mainstream educational system had been recommended, as well as of those who did not sit the new test proposed. These shortcomings were regarded by her as a major weakness in the system of legal safeguards put in place by the authorities following the D.H. judgment.

It is therefore essential that the Committee receives from the Czech authorities additional information on these issues as quickly as possible and, in any event, before 1 September 2014.

Moreover, the Secretariat notes that, according to the authorities' action plan, by December 2014, the new diagnostic tests should be fully operational and new statistics should be available on the education of Roma pupils. It is important to underline that these statistics would, for the first time, be fully comparable with previous data, in the sense that as for 2013 they will be obtained on the basis of data collected from all schools which enroll at least 5 pupils with a " mild mental disability" (whereas previous statistics were selective and limited to certain schools12). These elements will allow a thorough assessment of the state of execution of the D.H. judgment and it is therefore crucial that the Committee has them at its disposal as soon as possible and, in any event, before 10 February 2015, for their thorough review at the latest at its meeting DH March 2015.

Decisions

The Deputies

1. noted the developments made in the implementation of the authorities’ action plan and encouraged them to pursue their efforts in this respect and to ensure that the outstanding measures are adopted without delay;

2. welcomed the adoption of the amended decrees, which will enter into force on 1 September 2014, abolishing the possibility of short-term placement of "socially disadvantaged" pupils in groups/classes for children with "mild mental disability"; further encouraged the authorities to pursue their efforts with a view to amending Article 16 of the Education Act;

3. considered that the information available on the implementation of new diagnostic tools and reassessment of pupils raise questions about their effectiveness, particularly in relation to:

    - the low percentage of children diverted to the mainstream education system;

    - the follow-up given to pupils whose transfer to the mainstream education system is recommended; and

    - the fate of children who do not respond to a call for reassessment;

and invited the authorities to provide further explanations in this regard by 15 September 2014;

4. invited further the Czech authorities to provide the Committee, no later than 10 February 2015, with a revised action plan, including in particular an update on the use of diagnostic tools and the most recent statistics concerning the education of Roma pupils in groups/classes for pupils with "mild mental disability";

5. decided to resume consideration of this case, in light of the information expected from the Czech authorities, at the latest at their DH meeting of March 2015.

GERMANY

Application: 19359/04

Judgment final on 10/05/2010

M. GROUP

Enhanced procedure: Complex problem

Reference texts:

Updated action plans (13/03/2013) DH-DD(2013)297 ; (07/03/2012) DH-DD(2012)467

Action report (26/09/2013) DH-DD(2013)1188

Communications concerning the different cases of the group which can 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/GER-M_fr.asp

Decision adopted at the 1136th meeting (March 2012)

Case description: This group of cases concerns the retroactive extension or retroactive ordering of “preventive detention” (“Sicherungsverwahrung”) of perpetrators of serious crimes:

When the applicants’ preventive detention was ordered, the law foresaw a maximum period of ten years. However, on the basis of a subsequent change in legislation, the applicants’ preventive detention was retroactively extended beyond this ten-year limit. The Court concluded that this retroactive extension constituted unlawful detention (violation of Article 5§1), as well as a retroactive imposition of a penalty because no substantial differences existed in the conditions of persons subjected to preventive detention and those of ordinary prisoners (violation of Article 7§1).

The cases of Haidn and B. concern the applicants’ unlawful detention because their placement in preventive detention for an indefinite period was ordered after they had served their full prison sentence (violation of Article 5§1).

In the cases of K., G. and S. the applicants’ preventive detention was ordered with retrospective effect after their placement in a psychiatric hospital had to be terminated because the preconditions for such placement were no longer given. The Court concluded that such order constituted unlawful detention in the case of S. (violation of Article 5§1) and the retroactive imposition of a penalty in the cases of K. and G. (violation of Article 7§1).

Status of execution: Individual measures:

- The applicants M., Schummer and Jendrowiak were released in 2010 and 2009, respectively.
- The applicant Haidn is no longer in preventive detention. He is detained in a psychiatric hospital since 2007 for new offences on a different legal basis.
- The placement in preventive detention of the applicants O.H. and Kronfeldner was terminated and their placement in a psychiatric hospital was ordered in 2011 pursuant to the provisions of the Act on Placement for Therapeutic Treatment (Therapieunterbringungsgesetz – ThUG).
- As regards the applicants Kallweit, Mautes, B., K., G. and S., the domestic courts, in 2011, ordered their continued detention in a new form of “preventive detention”, in accordance with the strict conditions set by the Federal Constitutional Court (hereafter “FCC”) in its leading judgment of 4 May 2011 (see below) according to which the person concerned must suffer from an established “mental disorder” – one of the exceptions allowing detention under Article 5§1(e). Moreover, the FCC stressed that the conditions of this continued “preventive detention” must be clearly distinguishable from a prison sentence – so called “distance requirement” – and adapted to the mental state of the person concerned.
Review proceedings concerning these new orders are currently pending before the domestic courts in the cases of K., G. and S. The applicants Kallweit and Mautes lodged constitutional complaints. The applicants K. and G. also lodged requests for reopening of the proceedings (concerning the retrospective orders for their preventive detention), which were declared inadmissible.
These applicants who are still detained, are detained in separate special prison units under conditions designed to comply with the above mentioned “distance requirement” set by the FCC.

General measures: Not more than one year after the Court’s judgment, on 4 May 2011, the FCC rendered a leading judgment, which settled outstanding issues as regards the lawfulness of “preventive detention” of persons in the applicants’ situation and ensured that new, similar violations could no longer take place. The FCC declared unconstitutional all existing provisions on preventive detention and ordered that new legislation, with specific minimum requirements, had to be enacted by the end of May 2013 at the latest.

In order to avoid a “legal vacuum”, it also fixed strict transitional arrangements until the entry into force of this new legislation. In particular, placement in preventive detention or its continuance could only be imposed if the person suffered from an established mental disorder and if there was a high risk that the person would commit the most serious crimes. The FCC ordered review proceedings to be carried out in all remaining similar cases of preventive detention until the end of 2011 (cf. under individual measures above). The FCC’s judgment was welcomed by the Committee of Ministers when it examined the situation in March 2012.

Since the Committee’s last examination, the German authorities have carried out a comprehensive statutory reform of the system of preventive detention and its implementation in practice. The Act implementing the distance requirement in the law on preventive detention on the federal level (“Gesetz zur bundesrechtlichen Umsetzung des Abstandsgebots im Recht der Sicherungsverwahrung”) and implementing acts of the different Länder entered into force on 1 June 2013. The necessary practical measures to apply the new concept of preventive detention (e.g. renovation and construction of detention facilities, measures ensuring that detainees receive appropriate therapeutic treatment) have been accomplished or, in a few Länder, are currently still underway and will be accomplished in a near future.

Application

Case

Judgment of

Final on

19359/04

M.

17/12/2009

10/05/2010

61272/09

B.

19/04/2012

19/07/2012

65210/09

G.

07/06/2012

07/09/2012

6587/04

HAIDN

13/01/2011

13/04/2011

30060/04

JENDROWIAK

14/04/2011

14/07/2011

61827/09

K.

07/06/2012

07/09/2012

17792/07

KALLWEIT

13/01/2011

13/04/2011

21906/09

KRONFELDNER

19/01/2012

19/04/2012

20008/07

MAUTES

13/01/2011

13/04/2011

4646/08

O.H.

24/11/2011

24/02/2012

5123/07

RANGELOV

22/03/2012

22/06/2012

3300/10

S.

28/06/2012

28/09/2012

48038/06

SCHONBROD

24/11/2011

24/02/2012

27360/04+

SCHUMMER (I and II)

13/01/2011

13/04/2011

1201st meeting - Notes:

I. Individual measures:

1) As required under Article 46, domestic proceedings reviewing the legality, in the light of the above-mentioned FCC judgment of May 2011, of continued preventive detention were swiftly initiated in all cases where applicants were still in such detention at the time of the Court’s judgment. It can be noted that the Court, in several recent judgments, welcomed the FCC’s approach and considered that it had “implemented this court’s findings (…) in the domestic legal order” and “proposed an adequate solution to put an end to ongoing Convention violations” (see, for example, O.H., §118; Kronfeldner, §102; S., §121).

Updated information is awaited on the outcome of the domestic proceedings which were still pending when the last information was received.

2) It is noted that the Court recently found violations of Articles 5§1 and 7§1 due to another applicant’s continued preventive detention as a mental health patient in a separate prison wing (Glien, judgment of 28 November 2013), in particular given the lack of an appropriate medical and therapeutic environment. In the present cases, the authorities indicated that all applicants remaining in preventive detention are provided with an appropriate medical and therapeutic environment. However, in view of the Court’s recent judgment, it seems appropriate to recall the German authorities’ obligation to ensure that persons in preventive detention according to the new pre-conditions by the FCC are detained in a “hospital, clinic or other appropriate institution” – as required for the detention of “persons of unsound mind” under Article 5§1(e).

II. General measures:

1) Remedying the situation of persons concerned by the established retroactive application of the earlier law: The Committee, in its decision adopted in March 2012, “welcomed the measures already taken to ensure that preventive detention of persons in the applicants’ situation is terminated, without excluding continued detention on other grounds in conformity with the Convention’s requirements (e.g. mental illness)”. It follows from the subsequent information provided that the requirements by the FCC (in particular, the institution of review proceedings in all similar cases of preventive detention) were meticulously complied with in practice. Preventive detention, as incriminated by the Court, was thus terminated in all cases. According to available information, the judicial reviews have resulted in “preventive detention” being continued in its new form in a certain number of cases, but the new criteria used appear fully Convention compliant. Consequently, no further general measures appear necessary in this regard.

2) Preventing future violations:

a) Legislative reform: It is noted that the German authorities swiftly carried out a comprehensive legislative reform putting in place a new freedom-oriented and therapy-based concept of preventive detention, in force since 1 June 2013. Under this new concept, preventive detention may only be imposed/continued where, amongst other conditions, the person suffers from an established “mental disorder”. Article 5§1(e) requires that “persons of unsound mind” are detained in a “hospital, clinic or other appropriate institution” (see above). The authorities’ rapid action should be welcomed.

b) Implementation in practice: In accordance with the requirement under Article 5§1(e) that “persons of unsound mind” be detained in a “hospital, clinic or other appropriate institution” (see above), the practical measures taken, or currently being carried out, by the Länder improve the detention conditions and provide for an appropriate medical and therapeutic environment.

It can be concluded that the German authorities have implemented an appropriate response to the Court’s judgments. The Court itself recently noted “the positive and extensive measures which have been taken in the defendant State on judicial, legislative and executive level with a view to adapting the execution of preventive detention to the requirements, in particular, of the fundamental right to liberty in the near future” (see Glien, §99).

As certain implementing practical measures are still under way, updated information on their accomplishment is awaited.

III. Conclusion:

Considering the significant progress achieved in remedying the shortcomings found by the Court, enhanced supervision by the Committee no longer appears necessary for the present group of cases. Taking into account that certain practical measures are still under way, it is proposed to transfer the group of cases under standard supervision.

Decisions

The Deputies

1. welcomed the comprehensive individual and general measures adopted by the German authorities, not least on the basis of the Federal Constitutional Court’s leading judgment of 4 May 2011, to execute this group of cases;

2. welcomed, in particular, the rapid review of the lawfulness of the detention of all persons in the applicants’ situation under new criteria compliant with the Convention based on “mental disorder”, and the rapid completion of the legislative process enacting a new freedom-oriented and therapy-based concept of preventive detention;

3. recalled the German authorities’ obligation to ensure that persons in preventive detention, according to the new pre-conditions of the Federal Constitutional Court, are detained in a “hospital, clinic or other appropriate institution” as required for the detention of “persons of unsound mind” under Article 5§1(e) of the Convention;

4. encouraged the German authorities to swiftly complete any practical measures still under way in this respect, such as a construction and renovation works and other measures to provide for, as appropriate, accommodation as well as a medical and therapeutic environment;

5. noted that no further individual measure is necessary regarding the cases M., Schummer, Jendrowiak, Haidn, O.H. and Kronfeldner, and invited the German authorities to provide information on the outcome of the appeal proceedings about their continued new-form of “preventive detention” still indicated as pending in the cases of K., G. and S. as well as of the constitutional complaints lodged by the applicants Kallweit and Mautes;

6. decided, in view of the important measures taken and implemented, to continue the examination of this group of cases under the standard procedure.

GREECE

Application: 35151/05

Judgment final on 11/01/2008

BEKIR-OUSTA AND OTHERS GROUP

Enhanced procedure: Complex problem

Reference texts:

Communications from Greece

(13/11/2013) DH-DD(2013)1224; (25/10/2013) DH-DD(2013)1177

Communication from the applicants' representative

(26/11/2013) DH-DD(2013)1288

Previous communications which can 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/GRC-Bekir-Ousta_en.asp

Decision adopted at the 1186th meeting (December 2013)

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 the Order of business of the 1157th, 1172nd and 1186th meetings and the relevant decisions adopted by the Committee in December 2012, June and December 2013). Furthermore, the Committee has urged the Greek authorities to consider alternative avenues which would enable the applicants to benefit from proceedings in compliance with the Convention requirements as interpreted by the Court’s case law. At its December 2013 meeting, the Committee noted that the Court of Cassation had definitely rejected all applications without an examination on the merits.

    However, in June 2013, the Committee noted with interest the information provided during the meeting according to which other avenues were being explored, including an amendment to the non-contentious procedure provided in the code of civil procedure. On 23/10/2013, the authorities indicated that they had received a letter by the Ministry of Justice according to which the competent authorities were considering the most appropriate solution to execute the individual measures in the judgments under examination.

At their December 2013 meeting (1186th DH) the Deputies, after noting that the applications lodged by the applicants had definitely been rejected, urged the Greek authorities to provide in due time, in order to enable its examination at their meeting of June 2014, concrete and tangible information on the measures that they were currently exploring in order to implement the individual measures, accompanied by an indicative calendar for their adoption. They instructed the Secretariat to prepare, in the absence of such information, a draft interim resolution to be distributed with the revised draft order of business.

To date, the Greek authorities have provided no information in response to the Committee’s decision.

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 Committee has closely followed the measures of information and awareness raising of to abide by the Court’s judgments in accordance with Article 46 of the Convention (see the Notes of the Order of Business – 1172nd meeting).

The Committee had noted with interest judgment No. 24/2012 of the Court of Cassation, delivered in the case “South Evros Cultural and Educational Association of Western Thrace Minority”. 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. It invited the authorities to keep it informed about the impact of this judgment in the Greek legal order. According to the information provided by the authorities on 25/10/2013, following the above-mentioned judgment of the Court of cassation, the Court of appeal of Thrace (as referring court) accepted the registration of the “South Evros Cultural and Educational Association of Western Thrace Minority” (the judgment in Greek was appended to the communication by the authorities). The authorities also sent three new decisions registering associations that have been delivered by the courts of the Thrace region.

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

Decision

The Deputies adopted Interim Resolution CM/ResDH(2014)84.

Interim Resolution CM/ResDH(2014)84

Execution of the judgments of the European Court of Human Rights
Bekir-Ousta and Others against Greece

Emin and Others against Greece

Tourkiki Enosi Xanthis against Greece

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

(Adopted by the Committee of Ministers on 5 June 2014

at the 1201st 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, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Noting that the present cases concern violations of the applicants’ right to freedom of association (Article 11), in particular on account of the refusal by the authorities to register their associations in the Bekir Ousta and Others and Emin and Others cases, and on account of the dissolution of their association in the Tourkiki Enosi Xanthis case;

Noting further that, following the judgments of the European Court, the applicants have not succeeded in having their cases re-examined in the light of the Court’s findings;

Recalling the commitment reiterated by the Greek authorities to implementing fully and completely these judgments, without excluding any avenue in that respect, so that the applicants benefit from proceedings in compliance with the Convention requirements, in the light of the Court’s case-law;

Recalling further that since June 2013, the Greek authorities have indicated to the Committee that, in response to these judgments, they were considering the most appropriate solution to execute the individual measures;

Strongly regretting that, despite the Committee’s call, the Greek authorities have provided no concrete and tangible information on the measures explored to implement the individual measures, accompanied by an indicative calendar for their adoption;

      CALLS upon the Greek authorities to take, without any further delay, all necessary measures so that the applicants benefit from proceedings in compliance with the Convention requirements, in the light of the Court’s case-law;

      CALLS further upon the authorities to provide the Committee, without any further delay, with tangible information on the measures taken or envisaged, accompanied by an indicative calendar for their adoption, to achieve the aforementioned goals in compliance with the Court’s judgments.

HUNGARY

Application: 57693/10

Judgment final on 24/07/2012

KALUCZA

Enhanced procedure: Urgent individual measures

Proposal to transfer under standard procedure

Reference texts:

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

Updated action plan (30/05/2014) DH-DD(2014)719

Decision adopted at the 1172nd meeting (June 2013)

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: 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, should further assaults be reported.

In December 2013 the applicant’s lawyer submitted copies of several domestic court decisions concerning an action in damages lodged against the applicant by her former partner for alleged loss of property and injuries. It follows from the facts established in these final decisions that the apartment, previously jointly owned by the applicant and her former partner, is currently the property of the applicant and two third parties and that the applicant’s former partner has no entitlement anymore to use it.

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 into the training of police officers.

Application

Case

Judgment of

Final on

57693/10

KALUCZA

24/04/2012

24/07/2012

1201st meeting - Notes:

Individual measures:

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 applicant’s lawyer that, according to a recent decision given by a Hungarian court, the applicant’s former partner has no longer ownership or possession rights on the previously jointly owned apartment. In addition, it is recalled that the Hungarian authorities considered 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. Moreover, the authorities gave assurances that they would take all necessary measures to adequately protect her in case further assaults are reported. It is also noted that since the Committee of Ministers last examination of the case at its 1172nd meeting (June 2013), the applicant has not submitted to the Secretariat any complaints or indications that the threat posed by her former partner still persisted.

Against this background and taking into account that the Hungarian authorities gave assurances that they would take all necessary measures to adequately protect the applicant in case further assaults are reported, the applicant’s situation no longer appears to require any urgent individual measures. Accordingly, enhanced supervision by the Committee no longer appears necessary.

General measures:

It is recalled that, at its 1172nd meeting, the Committee of Ministers welcomed the introduction of new methods on the handling of domestic violence cases in the training of police officers. The Deputies further 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. They encouraged the Hungarian authorities to continue their efforts to find solutions capable of ensuring that proceedings on restraining orders were shortened and invited them to keep the Committee informed on the progress made. They invited the Hungarian authorities to provide information demonstrating that the measures taken would ensure that dismissals of requests for restraining orders were sufficiently reasoned and encouraged them to take the necessary measures to ensure that common-law partners enjoyed the protection accorded by the “Act on Restraining Order due to Violence among Relatives”.

Information on the above-mentioned outstanding issues is still awaited.

Decisions

The Deputies

1. noted that the applicant’s former partner no longer has ownership or possession rights on the previously jointly owned apartment and that no further assault or threat against the applicant has been reported, and recalled in this context that the Hungarian authorities undertook to take all necessary measures to protect the applicant adequately should further assaults be reported;

2. decided, consequently, to continue its examination of the case under the standard procedure;

3. took note of the information provided on 30 May 2014, in particular on the introduction of a criminal law provision on domestic violence and on the inclusion of common-law partners in the scope of the protection accorded by the “Act on Restraining Order due to Violence among Relatives”; and instructed the Secretariat to carry out an assessment of this information and identify any outstanding questions.

ITALY

Applications: 43517/09, 22635/03

Judgments final on 27/05/2013, 06/11/2009

TORREGGIANI AND OTHERS SULEJMANOVIC

Enhanced procedure: Complex problem, pilot judgment

Reference texts:

Communications from Italy

(03/04/2014) Torregianni case DH-DD(2014)471, Torregianni case DH-DD(2013)1119

(22/05/2014) DH-DD(2014)703

Action plan (Torreggiani (29/11/2013) DH-DD(2013)1368

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

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

Communication from a NGO

From Nonviolent Radical Party Transnational and Transparty (10/04/2014) DH-DD(2014)585

Decision adopted at the 1193rd meeting (March 2014)

Case description: These cases concern the inhuman and degrading treatment suffered by the applicants due to the conditions of their detention resulting mainly from a structural problem of overcrowding in Italian prison facilities (violations of Article 3). In view of the scale of the problem, the European Court delivered a pilot judgment in Torreggiani and others v. Italy (final on 27/05/2013), in which it requested Italy to put in place, by 27 May 2014, a remedy or combination of remedies providing redress in respect of violations of the Convention resulting from overcrowding in prison.

Status of execution: Individual measures: the applicants were released or transferred to cells which are not overcrowded. All the applicants were awarded with just satisfaction.

General measures: The Sulejmanovic judgment was final in 2009 and a first set of measures was presented in an action plan of 29/06/2012. These measures included changes to the law and a programme to build new prisons. Following the delivery of the Torreggiani pilot judgment, the authorities submitted a further Action plan on 29/11/2013, which the Committee considered at its last examination of the case in March 2014. Noting that no information was presented on a preventive remedy and that only a compensatory remedy appeared to be under consideration, the Committee strongly urged the Italian authorities to take concrete steps to put in place a remedy or combination of remedies with preventive and compensatory effect by the deadline set of 27 May 2014, and to provide the Committee with information on all developments in this respect. The Committee also underlined that to be fully effective any remedy must be underpinned by substantive measures. It noted with interest the substantive measures presented but needed further information in order to understand the scale of overcrowding in Italian prisons and assess the effectiveness of the measures taken.

On 25/03/2014, the Department for the Execution of Judgments met with senior officials from the Ministry of Justice to discuss the status of execution of these cases and the concerns raised by the Committee. The meeting addressed the introduction of a preventive remedy and work underway to put in place a compensatory remedy. Following the meeting, the authorities rapidly provided information on the implementation of the action plan, aimed at responding to the concerns raised by the Committee. The following key elements are included:

1) Establishment of a remedy

The authorities refer to Law-Decree No. 146/2013 of December 2013 which establishes a new remedy allowing an inmate to complain about any violation of their rights to a supervisory judge. This remedy, according to the authorities, is able to provide redress of a situation of detention in conditions contrary to Article 3; for example the judge has the power to order the transfer of an applicant out of an overcrowded cell. Following a recent judgment of the Italian Constitutional Court (135/2013), legal means are now available to enforce such an order if it is not executed by the penitentiary authorities. The first applications for this remedy have been filed and the authorities are monitoring its effectiveness.

The authorities also reiterate their intention to set up a compensatory remedy, as a matter of urgency for those who suffered from deprivation of liberty in conditions contrary to Article 3 of the Convention. This remedy would cover the whole period of detention in such conditions. Applicants with cases pending before Strasbourg will also be able to access this remedy.

2) Substantive measures

The new information confirms that a certain number of measures foreseen in the Action plan of 29/11/2013 were introduced by the Law-Decree No. 146/2013. These measures notably increased the number of days of imprisonment per semester for a prisoner to become entitled to early release; increased use of electronic tagging as an alternative to imprisonment, as well as house arrest; and introduced more lenient penalties for minor drug-related offences.

3) Statistics on the scale of overcrowding and monitoring

The information includes statistics from December 2009-March 2014. For example, the European Court indicated in its judgment that in April 2012 the occupation rate of Italian prisons was 148% and according to the most recent information, the occupation rate in March 2014 was 124%. However, 1,972 persons are still detained in spaces of less than 3m2. Other statistics show an increased use of measures alternative to detention, a decrease of the overall prison population and a slow but steady decrease in the number of people detained on remand.

In relation to ongoing monitoring of the situation, the Law-Decree establishes the office of National “Garante”, a type of Ombudsman for persons deprived of their liberty. Also, over the last year, the Department of Prison Administration has developed a computerised system for monitoring prison space and population, which guides reallocation of prisoners detained in overpopulated facilities (taking into account other factors such as proximity to family).

Application

Case

Judgment of

Final on

43517/09+

TORREGGIANI AND OTHERS

08/01/2013

27/05/2013

22635/03

SULEJMANOVIC

16/07/2009

06/11/2009

1201st meeting - Notes:

The statistics submitted by the authorities show encouraging, positive trends.

Moreover, the introduction of a preventive remedy ahead of the deadline set in the pilot judgment of 27 May 2014 is a key step. The new remedy presented by the authorities permitting a complaint before a supervisory judge is particularly promising. It has a wide application, covering any violation of the rights guaranteed by Italian penitentiary law, including a situation of overcrowding. Further, in order to respond to the problem of the failure to respect judicial orders by the penitentiary authorities, highlighted by the pilot judgment in the context of previous remedies, the new remedy also provides for an enforcement procedure. It should also be noted that the binding force of an order by a supervisory judge has been reinforced by the decision of the Constitutional Court in case No. 135/2013, which expressly underlines the obligation of the penitentiary authorities to respect such orders. The authorities’ intention to monitor the effectiveness of the remedy should be noted.

Finally, the authorities have announced their intention to introduce a compensatory remedy. During consultations with the Department for the Execution of Judgments on 22 May 2014, senior representatives from the Ministry of Justice highlighted the ongoing work on the introduction of the compensatory remedy and progress made in this respect. They also stressed that as of 19 May 2014 the number of prisoners had decreased to below 60 000 (59 555), and that at present no prisoner enjoys a vital space of less than 3m²".

Decisions

The Deputies

1. welcomed the authorities’ commitment to resolve the problem of prison overcrowding in Italy and the significant results achieved in this area, through the various structural measures adopted in order to comply with the judgments in this group, including an important and continuing drop in the prison population, and an increase in living space to at least 3m2 per detainee;

2. welcomed further the establishment of a preventive remedy within the deadline set by the Torreggiani and others pilot judgment and, in order that it can be fully assessed, invited the authorities to provide further information on its implementation, notably in the light of the monitoring that they will undertake in this context;

3. noted with interest the information provided on the steps taken to establish the compensatory remedy, also required by the pilot judgment, in a Law-Decree which will provide for the possibility of a reduction of sentence for prisoners still serving their penalties and pecuniary compensation for prisoners who have already been released;

4. noted further that the adoption of this Law-Decree is imminent, and invited the authorities to inform the Committee as soon as it is adopted;

5. decided to resume consideration of this group of cases at its DH meeting in June 2015 at the latest, to make a full assessment of the progress made in light of an updated action plan/report to be provided.

ITALY

Application: 38433/09

Judgment final on 07/06/2012

CENTRO EUROPA 7 S.R.L. AND DI STEFANO

Enhanced procedure: Complex problem

Reference texts:

Communication from Italy (preliminary information) (12/02/2013) DH-DD(2013)391

Case description: The case concerns deficiencies in the legal framework introduced in Italy to re-allocate frequencies in the television broadcasting sector. Between 1999 and 2009, that framework deprived of effect a ministerial decree granting a licence for nationwide television broadcasting to the applicant company. More specifically, the transitional arrangements made under this legislative framework allowed operators, already overrepresented on the audio-visual market to continue using the frequencies that were supposed to have been allocated to the applicant company, preventing it thereby from operating in the television broadcasting sector (violations of Article 10 and of Article 1 of Protocol No. 1).

The European Court found that the legal framework did not define with sufficient precision and clarity the scope and the duration of the transitional arrangements and that it did not satisfy the foreseeability requirement under the Convention. This shortcoming resulted, among other things, in reduced competition in the audio-visual sector and it amounted to a failure by the State to comply with its positive obligation to put in place an appropriate legislative and administrative framework to guarantee effective media pluralism (§156 of the judgment).

Status of execution: On 12 February 2013, the authorities indicated that an action plan was under preparation in conjunction with the relevant authority in the field of radiofrequencies. Since then, no new information has been provided, despite several reminders sent by the Secretariat, most recently a letter inviting the authorities to submit an action plan / action report by 21 May 2014 at the latest.

Application

Case

Judgment of

Final on

38433/09

CENTRO EUROPA 7 S.R.L. ET DI STEFANO

07/06/2012

Grand Chamber

1201st meeting - Notes:

The applicant company’s situation

The Court indicated that its examination only concerned the period from 28 July 1999, the date of the ministerial decree granting the licence for broadcasting, to 30 June 2009, the date of the allocation of a frequency to the applicant company and when it was able to begin broadcasting on that single channel (§77 of the judgment).

Lack of information on the measures taken or envisaged by the authorities

Almost two years after the Court’s judgment became final and despite the repeated reminders from the Secretariat, the authorities have not submitted any information on the measures taken or envisaged for the implementation of the judgment in the form of an action plan/report. The Committee might therefore wish to adopt the decisions noted below.

Decisions

The Deputies

1. noted that this case concerns deficiencies in the legislative framework introduced in Italy to re-allocate frequencies in the television broadcasting sector, which prevented the applicant company from operating in this sector between 1999 and 2009;

2. noted with concern that the Italian authorities have so far provided no information to the Committee on the measures taken or envisaged for the execution of this judgment and urged them to provide this information in the form of an action plan or an action report by 1 September 2014 at the latest.

POLAND

Application: 7710/02

Judgment final on 22/11/2010

GRZELAK

Enhanced procedure: Complex problem

Reference texts:

Action report (03/04/2014) DH-DD(2014)483

Revised action plan (13/02/2014) DH-DD(2014)245

Action plan (31/07/2013) DH-DD(2013)957

Initial action report (15/01/2013) DH-DD(2013)309

Decision adopted at the 1186th meeting (December 2013)

Case description: discrimination, during the entire period of his schooling, against a non-believer pupil due to the absence of a mark for “religion/ethics” on his school certificates as a result of the failure to provide alternative ethics classes instead of religious instruction (violation of Article 14 in conjunction with Article 9).

Status of execution: Individual measures: the applicant is no longer in compulsory education. The European Court concluded that the finding of a violation constituted in itself sufficient just satisfaction for non-pecuniary damage.

General measures: In the revised action plan submitted on 31/07/13, the authorities indicated that the main cause of the violation was the provision in the 1992 Ordinance on the organisation of religious instruction in State schools, stipulating that school authorities are only obliged to organise a course of ethics if there are a minimum of three pupils in the municipality interested in following the class. To address this, the authorities initially decided to put in place ethics courses by distance learning (“e-learning”) (see action plan of 31/07/2013). This was welcomed by the Committee of Ministers at its meeting in December 2013, along with the awareness-raising measures undertaken. However, the measures were only planned for the beginning of the 2015 school year. The Committee therefore underlined the importance of following the timetable foreseen and invited clarification from the authorities on actions to be taken prior to 2015 for pupils in a similar situation to the applicant.

Since then the authorities revised their strategy (see action plan of 13/02/2014). Instead of introducing “e-learning” for ethics, they amended the 1992 Ordinance to remove the requirement that a minimum of three pupils must be interested in ethics classes for such classes to be organised. According to the Action report submitted on 03/04/2014, the amendment will be applicable from the beginning of the September 2014 school year. The authorities have committed to monitoring the proper application of the amendment.

Application

Case

Judgment of

Final on

7710/02

GRZELAK

15/06/2010

22/11/2010

1201st meeting - Notes:

By removing the requirement that a minimum of three pupils must request an ethics class before such a class can be organised, the source of the violation found by the Court has been eliminated. The fact that the new legislation is applicable from the beginning of the 2014 school year also addresses concerns raised about the situation of pupils in a similar position to the applicant.

In the light of the above, the Deputies may wish to consider that the measures taken by the government have adequately responded to the European Court’s judgment and to adopt the draft final resolution set out below, closing their supervision of the execution of this case.

Decision

The Deputies adopted Final Resolution CM/ResDH(2014)85.

Resolution CM/ResDH(2014)85

Execution of the judgment of the European Court of Human Rights
Grzelak against Poland

Application No.

Case

Judgment of

Final on

7710/02

GRZELAK

15/06/2010

22/11/2010

(Adopted by the Committee of Ministers on 5 June 2014

at the 1201st 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, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in this case and to the violations established;

Recalling the respondent State’s obligation, under Article 46, paragraph 1, of the Convention, to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

    - of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum; and

    - of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment (see document DH-DD(2014)483), and noting that no award of just satisfaction was made by the Court in the present case;

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

      DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

      DECIDES to close the examination thereof.

POLAND

Application: 46702/99

Judgment final on 12/07/2007

DZWONKOWSKI GROUP

Standard procedure: proposal to transfer this group under the enhanced procedure

Reference texts:

Case description Ill-treatment inflicted by the police - between 1997 and 2002 - and lack of effective investigation in this respect (substantive and procedural violations of Art. 3).

Status of execution A consolidated action plan is expected, completing the information already provided.

Application

Case

Judgment of

Final on

46702/99

DZWONKOWSKI

12/04/2007

12/07/2007

15562/02

LEWANDOWSKI AND LEWANDOWSKA

13/01/2009

13/04/2009

19616/04

PIENIAK

24/02/2009

24/05/2009

9258/04

MROZOWSKI

12/05/2009

12/08/2009

16381/05

POLANOWSKI

27/04/2010

27/07/2010

28975/04

WASILEWSKA AND KAŁUCKA

23/02/2010

23/05/2010

22339/08

KARBOWNICZEK

27/09/2011

27/12/2011

1201st meeting - Notes:

The Court has recently delivered a new judgment in the case of Przemyk v. Poland13 suggesting that the relevant issues were of a structural character.

All relevant previous judgments (Dzwonkowski group) should therefore be re-grouped and transferred under the enhanced procedure. Accordingly, the Secretariat proposes to transfer this group from standard to enhanced procedure.

Decision

The Deputies decided to transfer the Dzwonkowski group from the standard to the enhanced procedure, in the light of the recent similar judgment delivered by the Court in the Przemyk case.

ROMANIA

Application: 33810/07+

Judgment final on 28/11/2011

ASSOCIATION “21 DECEMBRE 1989” GROUP

Enhanced procedure: Complex problem

Reference texts:

Communications from Romania

Revised action plans (03/04/2014) DH-DD(2014)498, (19/10/2012) DH-DD(2012)1000

Individual measures in the cases of Crainiceanu and Frumusanu (06/03/2014) DH-DD(2014)317

General measures (29/04/2013) DH-DD(2013)523, (18/12/2013) DH-DD(2014)41

Decision adopted at the 1157th meeting (December 2012)

Case description :

1. These cases concern the ineffectiveness of the criminal investigations into the violent crackdown on anti-governmental protests connected to the fall of the communist regime in Romania (procedural violations of Article 2).

The investigation in the case of Association “21 December 1989” and others – initiated in the early 1990s – concerns the use of lethal force, the ill-treatment and the deprivations of liberty of thousands of civilian protesters in December 1989, before and in the aftermath of the overthrow of Nicolae Ceauşescu, when the son of the applicants Mr and Mrs Vlase lost his life. The investigation in the case of Crăiniceanu and Frumuşanu – initiated in 1991 – concerns the death of the applicants’ relatives, shot and killed on 25 September 1991, during anti-governmental riots.

The European Court questioned the fact that at various stages, these investigations had been carried out by military prosecutors who, like the majority of the accused, were subject to the principle of subordination within the military hierarchy. These investigations had been also affected by other shortcomings: excessive delays, flaws in the taking of evidence in the initial stages, which could not be remedied during the subsequent investigation, and lack of co-operation from the authorities involved in the crackdown with the investigators, attested in particular by the destruction of evidence and the classification, until 2010, of information which was essential for the investigation, without proper justification. Lastly, the investigation at issue in the case of Association “21 December 1989” and others had failed to adequately ensure public control and the protection of the interest of the victims’ next-of-kin in participating in the investigation.

More than a hundred applications having the same subject-matter as the case of Association “21 December 1989and others are pending before the European Court, which indicated in that judgment, under Article 46 of the Convention, that “it is for the respondent State to put an end to the situation at issue in the present case, found by it to be in breach of the Convention, affecting the right of many persons concerned […] to an effective investigation, not to be terminated by effect of statutory limitation on criminal liability, considering also the importance for Romanian society to know the truth about the events of December 1989” (§194).

2. The case of Association “21 December 1989” and others also concerns the lack of safeguards in Romanian legislation applicable to secret surveillance measures based on national security grounds, in particular as regards the collection and storage of personal data by the Romanian Intelligence Service (violation of Article 8 in respect of Mr Teodor Mărieş).

Status of execution: On 19 October 2012, the Romanian authorities presented a revised action plan in the case of Association “21 December 1989” and others, followed by additional information on 8 April 2013, 18 December 2013 and 6 March 2014. On 3 April 2014, the authorities presented a revised action plan for the two cases. This information can be summarised as follows:

1. Individual measures

a) Procedural violations of Article 2

Case of “Association “21 December 1989” and others: Between 2011 and 2014, the investigation was carried out by the civil branch of the prosecutor’s office attached to the High Court of Cassation and Justice. Two prosecutors and three investigating officers were assigned to carry out the investigation and they collected a certain amount of evidence with the aim of identifying the persons responsible for military or civil decision-making during the crackdown. In February 2014, following an amendment to the rules on competence (see under “General measures” below), the investigation was transferred to the military branch of the same prosecutor’s office. Four military prosecutors are now in charge of the investigation. Mrs Vlase is kept informed of the progress in the investigation and is involved in the procedural steps taken.

Case of Crăiniceanu and Frumuşanu: The prosecutor’s office attached to the Bucharest regional military court is carrying out an investigation to identify the person/s responsible for the death of the applicants’ next-of-kin. Since 2011, upon the prosecutors’ request, several public authorities have handed over to the investigators information and evidentiary material in their possession related to the events at the origin of the case.

Other investigative steps were taken or are under way, including the hearing and cross-questioning of witnesses and obtaining a ballistics report.

Violation of Article 8:

The authorities will assess the need to adopt individual measures, such as the destruction of the personal data collected and stored concerning the applicant Mr Mărieş, once they had clarified the origin of documents the applicant relied upon before the European Court to prove that he was the object of secret surveillance measures.

2. General measures

a) Procedural violations of Article 2

Amendments to the rules on the statute of limitations: The Romanian authorities adopted measures to ensure that these investigations, as well as other investigations into analogous events, can be pursued beyond the expiry of the initial limitation period for the impugned acts. Law No. 27/2012 removed the statutory limitation for intentional offences against life, including those under investigation as of 19 March 2012, when the law entered into force. Decision No. 511 of 12 December 2013 of the Constitutional Court confirmed that these provisions are compatible with the Constitution.

Competence of military prosecutors: Under the former Code of Criminal Procedure, military prosecutors and courts had jurisdiction only for investigations into acts committed by military personnel. The new Code of Criminal Procedure, entered into force on 1 February 2014, extended the competence of military prosecutors to investigations into acts committed jointly by civilians and military personnel (the civilian courts remain competent to try these cases). The Romanian authorities presented information on the status of military magistrates, indicating that it is, in general terms, similar to that of their civilian counterparts. They do not consider it necessary to adopt general measures specifically to respond to the findings of the European Court concerning the lack of independence of military prosecutors from persons under investigation who have military status.

Other shortcomings in the investigations into acts contrary to Article 2 committed by State agents: The authorities refer to the general measures adopted and envisaged for the execution of the group of cases Barbu Anghelescu v. Romania (No. 46430/99) to ensure that such investigations are carried out with the required diligence and speed.

b) Violation of Article 8: The general measures required to remedy this violation are examined in the case of Bucur and Toma v. Romania.

Application

Case

Judgment of

Final on

33810/07+

ASSOCIATION “21 DECEMBRE 1989”

24/05/2011

28/11/2011

12442/04

CRĂINICEANU AND FRUMUŞANU

24/04/2012

24/07/2012

1201st meeting - Notes:

- As regards the individual measures

Procedural violations of Article 2: As the independence of military prosecutors, who currently have competence to carry out the investigations at issue in these cases, was called into question by the European Court, it seems appropriate to examine first the consequences to be drawn from these findings in terms of general measures (see below).

Violation of Article 8: The details presented do not clarify the key question of whether the authorities are currently storing personal data concerning Mr Mărieş, collected through secret surveillance under a legislative framework that did not meet the requirements of Article 8. The authorities should therefore provide the Committee of Ministers with a response to this question and, in the affirmative, indicate the measures they intend to take in respect of such data.

- As regards the general measures:

It should be noted from the outset that in this group of cases the Committee of Ministers is considering only the issue of procedural violations of Article 2.

Regarding the statute of limitations: as a consequence of the measures adopted by the Romanian authorities, statutory limitation is no longer an obstacle to pursuing the investigations in these cases. The Romanian authorities are therefore able to comply with the European Court’s indications under Article 46 in the Association “21 December 1989” and others judgment (see §194 of the judgment).

Regarding the competence of military prosecutors: in these cases as well as in other cases against Romania which concern investigations of acts contrary to Articles 2 or 3 committed by members of the armed forces and other military corps, the European Court questioned the independence of military prosecutors from the persons under investigation. These findings are based on specific provisions of Romanian legislation governing the status of military magistrates. Under these provisions, military magistrates are active duty officers of the armed forces; belong to the military structure based on the principle of subordination within a military hierarchy; have military ranks; enjoy all the relevant privileges, and are liable for breaches of military discipline (see, for instance, §67 of the Barbu Anghelescu judgment for the previous legislation and §§72–73 of the Birgean judgment, for Law No. 303/2004 now in force).

The Romanian authorities do not consider it necessary to adopt specific general measures in response to these findings. They have underlined in particular that the status of military magistrates is, in general terms, similar to that of their civilian counterparts, including as regards disciplinary responsibility, and that the links between these magistrates and the Ministry of Defence only concern matters of financial nature. They have moreover indicated that in certain situations, the investigations carried out by military prosecutors are subject to supervision by the civilian courts, which could provide additional safeguards for their independence (for more details see the revised action plan of 3 April 2014).

The elements highlighted by the authorities do not appear to counter all the particular aspects of the status of military prosecutors which led the European Court to conclude that the investigations they carry out into facts similar to those at issue in the cases under examination, lack independence.

In these circumstances, it is necessary to encourage the Romanian authorities to further reflect upon the response to be given to the European Court’s findings recalled above, including upon the links between the military magistrates and the Ministry of Defence. Such reflection should be conducted rapidly, as the investigations at issue in the cases under examination are pending before the military prosecutors and as general measures that might be needed in response to these findings are therefore also relevant for the individual measures.

Regarding the effectiveness of investigations into acts contrary to Article 2 committed by State agents: with respect to the lack of co-operation of the authorities involved in the events at the origin of these cases, it is expected that the Romanian authorities will provide the Committee of Ministers with their assessment on the general measures that might be necessary to prevent similar shortcomings. As regards the general measures necessary to ensure that such investigations are carried out with the required speed and that the victims or their next-of-kin are involved to the extent required for the protection of their legitimate interests, they can be examined in the framework of the group of cases Barbu Anghelescu, as the authorities propose.

Decisions

The Deputies

1. noted that, in these cases, the European Court found that certain aspects of the national legislation governing the status of the military magistrates cast doubt on the institutional and hierarchical independence of military prosecutors, when the persons under investigation belong to the armed forces or to other military forces;

2. invited the Romanian authorities to carry out rapidly a thorough assessment of the consequences to be drawn from these findings, as regards the general and individual measures in these cases, and to keep the Committee of Ministers informed of the conclusions and of the measures that might be defined and adopted in the light of this assessment;

3. invited, moreover, the authorities to present an assessment of the general measures that might be necessary to ensure that, in the future, bodies holding information on facts that are the subject of such investigations, co-operate fully with the investigators;

4. invited once again the Romanian authorities to clarify, by the end of September 2014, whether they hold personal data concerning Mr Mărieş, that was collected and stored under the national security laws, and, if so, to indicate what measures they intend to take in respect of such data.

RUSSIAN FEDERATION

Application: 42525/07

Judgment final on 10/04/2012

ANANYEV AND OTHERS

Enhanced procedure: pilot judgment

Reference texts:

Letter from the Court DH-DD(2012)415

Interim Resolutions (Kalashnikov group) ResDH(2003)123 and CM/ResDH(2010)35

Communications from the Russian Federation

Action plans (14/08/2013) DH-DD(2013)936, (10/10/2012) DH-DD(2012)1009

(16/11/2012) DH-DD(2012)1072, (13/02/2013) DH-DD(2013)153

Updated action plan (30/04/2014) DH-DD(2014)580

Communication from NGOs

(07/10/2013) DH-DD(2014)44, (27/09/2012) DH-DD(2012)1026, (29/11/2012) DH-DD(2013)92

Decision adopted at the 1164th meeting (March 2013)

Case description: Structural problem highlighted by the European Court by applying the pilot-judgment procedure: poor conditions of detention of the applicants in remand centres (SIZO) under the authority of the Federal Penitentiary Service (Article 3) and lack of an effective remedy in this respect (Article 13).

Under Article 46 of the Convention, the Court recalled that the existence of the structural problems had already been highlighted by the Committee of Ministers and acknowledged by the Russian authorities. The Court underlined that the structural nature of this widespread problem results in a malfunctioning of the Russian penitentiary system and insufficient legal and administrative safeguards against the proscribed kind of treatment. This multifaceted problem owes its existence to a large number of negative factors, both legal and logistical in nature. The Court abstained from indicating specific reforms which should be undertaken by the Russian authorities. At the same time, the Court suggested a number of avenues and underlined that two issues should in particular be addressed by the Russian authorities, namely the problem of excessive length of pre-trial detention and possible additional ways of combating overcrowding through provisional arrangements and safeguards against the admission of prisoners in excess of the prison capacity.

As regards the domestic remedies, the Court held that the Russian authorities must produce, in co-operation with the Committee of Ministers, by 10 October 2012, a binding time frame in which to make available a combination of effective remedies having preventive and compensatory effects and complying with the requirements set out in the Court’s judgment.

As regards other similar cases lodged with the Court, it held that the Russian authorities must grant redress to the applicants in these cases within twelve months from the date on which the present judgment became final (that is before 10 April 2013) or from the date on which the Government knew about their applications.

The pressing need for comprehensive general measures has already been highlighted by the Committee of Ministers in the Kalashnikov group of cases (Interim Resolutions ResDH(2003)123 and CM/ResDH(2010)35).

Status of execution: Individual measures: It is recalled that Mr Bashirov is no longer held in detention on remand, as he is serving his sentence in a correctional colony (see DH-DD(2012)1072).

As regards Mr Ananyev, it is recalled that, following the reopening of proceedings in his criminal case, he was transferred again to the same pre-trial detention centre in respect of which the Court has found a violation of Article 3 on account of the conditions of detention (see DH-DD(2012)1072 + DH-DD(2013)153). At its March 2013 meeting, the Committee examined his situation and noted the assurances given by the Russian authorities concerning his current conditions of detention, in particular with regard to the available living space, access to natural light and fresh air as well as to the equipment of the cell. The Committee also took note that, according to the authorities, these conditions of detentions were not likely to raise an issue under Article 3.

Further improvements are closely linked to the adoption of general measures.

General measures: It is recalled that the Russian Federation is one of the beneficiaries of a specific project of the Human Rights Trust Fund on “implementing pilot, ‘quasi-pilot’ judgments and judgments revealing systemic and structural problems in the field of detention on remand and remedies to challenge conditions of detention” (HRTF project No. 18, covering 6 beneficiary member States).

Consultations with the Russian authorities and international experts were carried out within this project in September 2012 with a view to assisting the authorities in drawing up their action plan in response to this pilot judgment.

The detailed action plan provided in October 2012 included information concerning five main focal points: 1) measures aimed at ensuring a more balanced approach toward the choice of a preventive measure for suspects and the accused; 2) measures aimed at further improvement of material conditions of detention; and 3) measures aimed at setting up new domestic preventive and compensatory remedies and at further improvement of the existing ones; 4) awareness-raising activities; 5) closer co-operation with the civil society institutions.

Examining this action plan at its December 2012 meeting, the Committee welcomed its timely submission and noted with satisfaction that it was based on a comprehensive and long-term strategy for the resolution of the structural problem at issue. The Committee also encouraged the Russian authorities to continue their efforts with a view to resolving similar applications pending before the Court.

An additional action plan was submitted by the Russian authorities in August 2013 (DH-DD(2013)936). The authorities provided updated information concerning the preventive and compensatory remedies, which can be summarised as follows.

A legislative reform has been undertaken with a view to improving the judicial remedy in respect of conditions of detention (in remand centres, police temporary detention facilities and penitentiary establishments). This remedy is provided for in the Draft Code of Administrative Procedure, which was approved by the State Duma at first reading in May 2013. Notably, the Draft Code, which has integrated some of the provisions of the Code of Civil Procedure, provides for:

- a possibility for courts to order specific remedial measures in response to complaints concerning poor conditions of detention;
- a requirement that judgments ordering specific remedial measures clearly identify which decisions, acts or omissions are found to be unlawful, the authority responsible for the violation, for remedying it within a specific time-limit and for reporting back to the court concerning execution of the judgment;
- an active role of the court empowered to undertake certain steps and to consider certain issues ex officio;
- penalties to sanction unjustified failure to co-operate with the court regarding the submission of evidence;
- the redistribution of the burden of proof by imposing on the State body or official involved in the proceedings as the defendant the obligation of proving the lawfulness of particular actions, omissions and decisions and of substantiating the evidentiary basis of their arguments;
- the participation in the proceedings of all competent authorities; the possibility for the court to order interim measures, to accelerate proceedings, to submit a judgment for immediate execution;
- a mechanism for possible reduction of court fees and other costs for the complainants.

The Draft Code also provides for a possibility to examine a civil claim for compensation in the framework of the aforementioned administrative-law proceedings. In this context, the authorities envisage amendments to the 1995 Law “On Detention of Suspects and the Accused” and to the Penitentiary Code, to provide for a possibility to receive compensation for pecuniary and non-pecuniary damage inflicted as resulting from inadequate conditions of detention (in both pre- and post-trial detention facilities) by the State Treasury, irrespective of any fault on the part of the State authorities. Budgetary measures to ensure adequate funds and speedy execution are also foreseen.

On 30 April 2014 the Russian authorities provided an updated action plan (DH-DD(2014)580). Furthermore, in line with the Committee’s decision taken at its 1157th meeting (December 2012), the Russian authorities submitted information regarding progress in the resolution of similar applications pending before the Court. 245 applications have been communicated to them by the Court following the delivery of the pilot judgment: in 201 applications, the authorities have submitted declarations admitting the violations and expressing their readiness to pay compensation.

Application

Case

Judgment of

Final on

42525/07+

ANANYEV AND OTHERS

10/01/2012

10/04/2012

1201st meeting - Notes:

At the outset, it should be noted with satisfaction that the Russian authorities have undertaken significant efforts to ensure the swift resolution of similar applications pending before the Court, in line with the Court’s indication to this effect. It is also noted with interest that information was provided by the Russian authorities in October 2012 in the form of an action plan which concerned the measures taken or planned to implement the pilot judgment. An expert opinion, on the measures set out in the action plan, was provided to the Russian authorities within the context of the above-mentioned HRTF Project.

At the present meeting, it is proposed to focus on the issue of remedies, both preventive and compensatory. In this respect the Committee may note the action plan provided on 14 August 2013 (DH-DD(2013)936) and the updated action plan of 30 April 2014 (DH-DD(2014)580). However, it is at the same time a source of concern that the Draft Code establishing the new remedy has been pending before the State Duma since March 2013 and has been adopted only at first reading since then.

In view of the importance of the problem, the authorities should be urged to accelerate the adoption and entry into force of a system of remedies by the end of 2014 at the latest. Should the adoption of the Draft Code within this time-limit not prove realistic, the authorities should be encouraged to find alternative solutions, for example by rapidly introducing the necessary amendments in Chapter 25 of the Code of Civil Proceedings.

It is noted with interest that the proposals presented address several of the indications made by the European Court. The draft Code of Administrative Procedure will empower the courts to order specific remedial measures, set time-limits for enforcement of the orders and define the authority responsible for enforcement. In addition, the courts will be competent to consider the issue of compensation within the same set of proceedings (see the Court’s indications in §§218-220).

It appears, however, that a number of draft provisions require further consideration in the light of the requirements of the Convention as these appear in the Court’s case-law. Among such provisions figure those related to the distribution of the burden of proof. The Draft Code does not clearly integrate the requirement that it should be sufficient for a complainant to show a prima facie case of inadequate conditions of detention and that he or she should only be compelled to produce such evidence as is readily accessible to him or her (see §§228-229).

In addition, further information is needed in respect of the functioning and applicability of the provisions concerning a possibility for reducing court fees and other costs for the complainants, in order to ensure that they do not have a dissuasive effect. The scope and nature of remedial, including interim, measures which can be ordered by the courts also merit clarification (for example, whether in response to an individual complaint the courts are entitled to order wider remedial measures such as the refurbishment of a certain detention facility (see the Court’s indications in §219)).

As to the compensatory part of the remedy mechanism, it is noted that availability of compensation irrespective of the State authorities’ fault, as provided for in the legislative amendments underway, is in line with the Court’s indications (see §229). It remains to be clarified, however, whether the amended legislation will also operate retroactively, notably to assist in resolving the problem of repetitive cases before the Court (see the Court’s indications in §231). A possibility of mitigation of sentence may additionally be explored by the Russian authorities as a form of compensation, provided that it is in line with the Court’s indications in the present judgment (§§222-226). Furthermore, given the importance of ensuring that adequate amounts of compensation will be granted by the domestic courts (see §230), it may be useful to envisage further accompanying measures to this end (such as a ruling by the Plenum of the Supreme Court or other guidelines).

Due to the late submission of the updated action plan of 30 April 2014, it was not possible to analyse it fully for the present notes. However, upon preliminary examination, it appears that the information contained in it does not influence the above analysis of the remedies issues.

The Secretariat will continue to evaluate the action plans presented so far, in particular the parts concerning conditions of detention, in close co-operation with the Russian authorities.

Finally, the Russian authorities should be strongly encouraged to continue their co-operation within the framework of HRTF project No. 18 in order to find solutions to the outstanding issues and to ensure rapid results.

Decisions

The Deputies

1. recalled the decision adopted at their 1157th meeting (December 2012) (DH) in which they noted with satisfaction that the action plan provided by the Russian authorities in October 2012 was based on a comprehensive and long-term strategy for the resolution of the structural problem identified by the Court;

2. expressed satisfaction that the Russian authorities have undertaken significant efforts to ensure the swift resolution of similar cases pending before the Court, in line with the Court’s indication made in its pilot judgment;

3. noted with interest the information provided with respect to the setting-up of judicial domestic remedies, with preventive and compensatory effects, as required by the pilot judgment;

4. invited the Russian authorities to provide further information on a number of outstanding issues, notably as regards the distribution of the burden of proof, the scope and nature of the remedial measures which can be ordered by the courts and the mechanism for the reduction of court fees and other costs for the complainants;

5. urged the Russian authorities to accelerate the adoption and entry into force of a system of effective remedies before the end of 2014, at the latest;

6. strongly encouraged the Russian authorities to take full advantage of the opportunities provided by the Human Rights Trust Fund (HRTF) project No. 18 in order to find solutions to the outstanding issues and to ensure rapid results.

RUSSIAN FEDERATION

Application: 77617/01

Judgment final on 26/04/2006

MIKHEYEV GROUP

Enhanced procedure: Complex problem

Reference texts:

Communications from the Russian Federation on general measures

Action plan (16/08/2013) DH-DD(2013)933, (23/11/2010) DH-DD(2010)591

Communications from the Russian Federation on individual measures

Bykov case (08/04/2014) DH-DD(2014)484

Tangiyev case (14/03/2014) DH-DD(2014)385

Communications from the applicants’ representatives

Bykov case (04/12/2013) DH-DD(2014)47, (14/11/2012) DH-DD(2014)48

Tangiyev (13/03/2014) DH-DD(2014)537, (16/04/2014) DH-DD(2014)538

Previous communications concerning this group which can 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-Mikheyev_fr.asp

Decision adopted at the 1100th meeting (December 2010, p. 304)

Case description: This group of cases concerns torture or inhuman and degrading treatment inflicted on the applicants while in police custody with a view to extracting confessions and lack of effective investigations in this respect (substantial and procedural violations of Article 3); irregularities related to arrest and detention in police custody, notably arbitrary detention and unacknowledged detention (violation of Article 5§1); use in criminal proceedings of confessions obtained in breach of Article 3 (violation of Article 6§1) and lack of an effective remedy to claim compensation for the ill-treatment inflicted (violation of Article 13). The events at issue cover the period of 1998-2006.

Status of execution: Individual measures: As regards investigations into allegations of ill-treatment, the Russian authorities provided information on the state of the domestic investigations in certain individual cases. It appears that in a number of them, the investigation is either closed or still pending, whereas in others, the prosecution has become time-barred. Information is awaited with respect to the remaining cases.

Complaints have been received in certain cases with respect to the refusal by the domestic authorities to re-open criminal investigations into allegations of ill-treatment.

In the case of Georgiy Bykov (24271/03, final on 21 February 2011) the applicant complained (DH-DD(2014)48) that the investigator had decided on 24 August 2011 not to open criminal proceedings into allegations of ill-treatment for lack of evidence, notwithstanding that the European Court had found ill-treatment established and that the domestic courts on two levels of jurisdiction had found the decision lawful under Article 125 of Code of Criminal Procedure.

The Russian authorities indicated in response (DH-DD(2014)484) that in its decision of 24 August 2011, the investigator had found that the injuries were inflicted on the applicant by his colleague who attempted to stop the applicant from committing suicide. However, the European Court examined this version of the events, which had already at the time been advanced by the investigators, and found that “the investigator’s explanation sits ill with the nature of the applicant’s injuries” (see paragraph 55 of the judgment).

As regards the use of confessions obtained in breach of Article 3 in criminal proceedings against the applicants in some of the cases, it appears that the criminal proceedings in these cases were reopened. Information is awaited on their outcome.

In the case of Tangiyev (27610/05, final on 29 April 2013) the applicant alleged (DH-DD(2014)537, DH-DD(2014)538) that he was subjected to intimidation, including allegedly by the Federal Security Service (FSB), when seeking the reopening of the criminal proceedings in which he was found by the European Court to have been convicted on the basis of evidence obtained under torture. The information submitted by the applicant has been sent to the authorities and their clarifications are still awaited.

General measures: A first comprehensive action plan was submitted in November 2010. It referred to a number of improvements introduced since the violations took place: updating of regulations, improvements to the effectiveness of remedies and, in particular, to the independence of investigation authorities (setting-up of the Investigative Committee of the Russian Federation), greater accountability of officials, improvements in the qualification and training of the officials of the Investigative Committee, of the Ministry of the Interior (responsible for the police) and of the Federal Penitentiary Service as well as of judges and prosecutors.

When examining the action plan in December 2010, the Committee of Ministers noted with interest the changes in the legislation and administrative practices, although concluded that there were still issues requiring further general measures. The Committee noted, in this respect, with satisfaction the ongoing work aimed at reforming the Ministry of the Interior and encouraged the Russian authorities to seize fully the opportunity offered by the ongoing comprehensive reform to ensure that the legal and regulatory framework for police activities contained all necessary safeguards against police arbitrariness and abuses similar to those found by the Court in its judgments.

The above-mentioned reform of the Ministry of the Interior was completed in 2011 and a new police law became operational in March 2011.

An updated action plan was submitted in August 2013.

As regards the prevention of ill-treatment by the police, the Russian authorities indicated notably the following:

- The new Law on the Police prohibits torture and other forms of inhuman or degrading treatment and provides for certain safeguards against ill-treatment, such as: access to a medical doctor; recording of detention; the right to one phone call within 3 hours from the moment of arrest; the police officers’ obligation to inform the detained person about the reasons for arrest; the right to a lawyer and interpretation and to notify one’s detention to a third person of one’s own choice; and the right not to incriminate oneself.
- A number of additional regulatory and administrative acts have been adopted concerning the delivery, placement and registration of detained persons, their access for medical aid and health care, and to equip police premises with the technical means for video surveillance.
- The prosecutors’ supervision over arrest, detention and respect of the rights of detained persons has been improved.
- The monitoring by civil society has been reinforced through the establishment of public counsels within the Ministry of the Interior and the improvement of the activity of public monitoring commissions.

As regards the improvement of the effectiveness of investigations into allegations of ill-treatment, the authorities indicated the following:

- Specialised investigation units have been created in April 2012 within the Investigative Committee which is responsible for the investigation of crimes committed by law enforcement officials.
- Legislative amendments, in force since 15 March 2013 to the Code of Criminal Procedure (CCP), allow, in particular, the investigator to order the carrying out of forensic medical examinations during the preliminary inquiry before the opening of criminal proceedings and to use technical means for recording the conduct of investigative measures.
- The prosecutors’ supervision over criminal investigations has been reinforced by virtue of Orders issued in 2011 by the General Prosecutor.
- The judicial control over investigations under Article 125 of the CCP has been improved by Rulings by the Plenum of the Supreme Court delivered in 2009.

The Russian authorities also referred to the continuation of training and awareness-raising measures, such as the inclusion of the Court’s case-law in the training of members of law enforcement agencies and the holding of seminars and conferences.

Application

Case

Judgment of

Final on

77617/01

MIKHEYEV GROUP (list of cases)

26/01/2006

26/04/2006

1201st meeting - Notes:

General measures

The Committee noted with interest in 2010 the improvement of the legislative and administrative framework. (see status of execution above). Further information has now been provided in the new action plan, including with respect to the new Law on the Police adopted in 2011. A global assessment of progress made is under way. A preliminary assessment of certain key aspects is set out below.

1. As regards the prevention of ill-treatment by the police

      a) Zero tolerance policy

In its latest report, drawn up after its visit to Russia in 2012, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) found, that despite the efforts to reform Internal Affairs structures, the frequency and consistency of the allegations received by the CPT suggest that methods of severe ill-treatment/torture continue to be used on a frequent basis by the police and other law enforcement officials. Accordingly, the authorities should be encouraged to deliver a clear and firm signal of “zero tolerance” both through messages on a high political level to all members of law enforcement agencies and, where necessary, through additional legislative measures.

      b) Safeguards against ill-treatment

Even if the main safeguards against ill-treatment and torture are to different degrees anchored in Russian legislation and practice (notably the scrupulous registration of all arrests and placements in police custody, the right to receive a verbal notification of the main rights immediately upon arrest, the right, as from the outset of placement in custody, to inform relatives about the placement, to have access to a lawyer and to be examined by a medical doctor and the right to be promptly brought before a judge upon arrest) it appears (see also. a) above) that these safeguards need to be improved. The CPT during its 2012 visit found for example that the situation was very much the same as that observed in the course of the 2008 periodic visit. Notably, the right of notification of custody and to a lawyer and a doctor still only became available from the moment of the first official interview by the investigator (i.e. several hours and sometimes much longer) after the de facto apprehension and initial questioning by operational officers. Additional measures are therefore necessary to ensure the efficiency of safeguards. It is noted that the efficiency of safeguards in practice is closely linked with training and instructions (see below).

      c) Training and instructions

Effective respect for the safeguards against ill-treatment depends to a large extent on adequate training and instructions. The authorities referred to a number of recent instructions issued by the Ministry of the Interior concerning, in particular, the respect of the citizens’ rights by the police. As regards training, the authorities have inter alia indicated that members of the local departments of the Ministry of the Interior (police) follow initial and in-service training courses on human rights. More detailed information appears necessary on the integration of the different safeguards mentioned above into professional training courses and instructions for the police.

Information about special training efforts in respect of other groups, such as investigators, officials from special law enforcement agencies (for example the FSB) and prosecutors would also be required.

      d) Monitoring of incidents of ill-treatment

Internal mechanisms for monitoring offences committed by law enforcement agents are important instruments for the implementation of a “zero tolerance” policy. It is noted with interest that the Russian authorities have sought to reinforce monitoring by observers from civil society. However, such monitoring should be regarded as supplementing official monitoring. Accordingly, information is required on the functioning of the official mechanisms responsible for monitoring cases of ill-treatment by the police.

In this context, information is also required as to statistics of torture and ill-treatment complaints, namely:

- number of complaints received;

- number of investigations ordered ;

- length of investigations (cf “statute of limitations” below);

- number of criminal proceedings engaged and their outcome.

2. As regards the improvement of investigations

      a) Special units responsible for investigation of torture and ill-treatment

The creation of special investigation units in 2012 within the Investigative Committee of the Russian Federation, specifically tasked with the investigation of allegations of torture and ill-treatment by the police, is a step forward in order to ensure the independence of investigators from the officials possibly involved in alleged incidents. The importance of the efficiency of these new units is underlined by the fact that no progress under the earlier system appears to have been achieved in the majority of cases in this group.

In order to evaluate the potential of this new organisation of investigations, further information is required, in particular with respect to:

- rules safeguarding the independence and effectiveness of the new investigation units;

- competence (exclusive or not), as well as with respect to the crimes committed by other special law enforcement agencies, including the FSB as it appears that the latter provides operational support to these special investigation units ;

- number of investigation units, financial and human resources;

- number of investigations conducted into allegations of torture and ill-treatment and their outcome.

      b) Improvement of judicial control over investigations into allegations of torture and ill-treatment

Under Article 125 of the CCP, decisions and omissions by investigators and prosecutors in criminal proceedings may be subject to judicial review. While the courts can point out shortcomings in investigations, they have no authority to give instructions to investigators to take specific investigative measures. The Russian authorities have referred to a number of measures, in particular the adoption of Rulings by the Supreme Court in 2009, to improve procedural guarantees under Article 125. However, it is to be recalled that in its Interim Resolution CM/ResDH(2011)292 adopted in the context of Khashiyev group of cases, the Committee of Ministers noted with particular interest the adopted measures to guarantee that this remedy is used in line with the requirements of the Convention and took note of the examples of domestic courts’ practice demonstrating positive developments in the application of this remedy as well as of the statistics showing the increasing use of the remedy, in particular by victims. At the same time, the Committee recalled that the potential effectiveness of this remedy has not yet been fully demonstrated and accordingly has not yet been recognised by the Court and stressed, in this respect, that the successful exercise of this remedy by the victim is not yet sufficient to ascertain its effectiveness.

The analysis of the judgements in this group indeed shows that the remedy is plagued with problems such as: a lack of thorough review by the courts which was rather limited to the formal assessment of the lawfulness of a specific investigator’s decision despite the applicants’ complaints about the ineffectiveness of the investigation process as a whole; and a lack of clear instructions by the courts to the investigators resulting in the latter giving identical decisions over and over again so that the judicial decisions remained without practical effect.

Thus, additional measures appear necessary to improve the effectiveness of this remedy, notably to ensure more comprehensive and thorough judicial review to rectify the shortcomings identified.

      c) Statutes of limitations

It follows from the information provided that, in a number of cases in this group, the prosecution of those responsible has become time-barred. Given the risk of protractions and delays in the investigations, the same scenario appears likely to occur in other cases (cf also individual measures below).

In this regard, it should be recalled that the Court has already held that, where a State agent has been charged with crimes involving torture or ill-treatment, it is of the utmost importance that criminal proceedings and sentencing are not time-barred and that the granting of an amnesty or pardon should not be permissible (see for example Abdülsamet Yaman v. Turkey, No. 32446/96, § 55, 2 November 2004).

Accordingly, the authorities should take urgent measures with a view to ensuring that the prosecution and conviction of those responsible are not time-barred. This is of particular importance in case of the most serious abuses in the form of torture.

3. As regards violations of Article 6 because of the use of confessions obtained under torture or ill-treatment

In accordance with Russian law, a trial court can exclude any evidence from the case-file if it finds that it has been obtained by unlawful means during the criminal investigation. However, the violations established in the present group of cases suggest that the domestic courts refused to exclude confessions claimed to have been obtained under duress, referring to the prosecutors’ decisions not to open criminal investigations in response to the complaints. This was so even where medical evidence was available to the trial court that the applicants sustained injuries while in police custody. Therefore, it appears that the domestic courts in practice rely to a decisive extent on the investigators’ decisions with respect to allegations of ill-treatment.

This problem has, so far, not been addressed by the action plans submitted. Measures must therefore still be taken to ensure that the domestic courts make their own assessments of the question of whether or not evidence allegedly obtained under torture or duress has in fact been so obtained with a view to excluding such evidence from the trial. It is recalled that according to the European Court’s well established case-law, where an individual is harmed during detention, strong presumptions of ill-treatment will arise. It is then for the State to provide a plausible explanation of the situation, failing which a clear issue will arise under Article 3 of the Convention (see, for example, Selmouni v. France [GC], No. 25803/94, § 87; Lipencov v. Moldova, No. 27763/05, § 32 ; Salman c. Turkey [GC], No. 21986/93, § 99 and 100, ECHR 2000-VII).

In the light hereof, it would be useful to receive information that judicial practice in the Russian Federation has now changed to integrate the Convention requirements.

Individual measures

It is noted that in the great majority of cases the criminal inquiries were resumed following the European Court’s judgments, as required by the Convention. Information is awaited with respect to the remaining cases.

It is a source of grave concern that there appears to have been little tangible progress in the majority of the new investigations. It is thus urgent that these be speeded up and information on their progress provided to the Committee of Ministers. The urgency of action is all the more important as many investigations may not lead to tangible results because of the expiration of the prescription periods applicable. The situation also stresses the necessity of ensuring that the investigation committee’s decisions as regards the qualifications of the incriminated acts (abuse of power, extraction of confession, infliction of bodily injury) are subject to close scrutiny, including in the context of judicial proceedings.

It is also a source of concern that, in at least one case (the Georgiy Bykov case), the new inquiry by the investigative committee does not appear to have taken into account the clear findings of the European Court and that these shortcomings do not appear to have been rectified in the context of the judicial review of the lawfulness of the investigators’ decisions. The initiation of a new investigation thus appears necessary.

As regards specifically the Tangiyev case, on 27 March 2014 information has been requested from the authorities with respect to the applicant’s complaints about his intimidation (see under status of execution). Information is still awaited.

Decisions

The Deputies

1. noted the new comprehensive action plan submitted with respect to general measures and the further steps taken by the Russian authorities to improve the legislative and administrative framework for the action of the police, and, in particular, the adoption of the Law on Police and the creation of specialised investigation units within the Investigative Committee of the Russian Federation responsible for investigation of ill-treatment and torture by the police;

2. noted, however, that in order to have a global assessment of the progress made it is necessary to receive statistical data on the impact of the measures taken so far as well as more detailed information with respect to trainings, review of instructions, organisation of official monitoring of incidents of ill-treatment and to the functioning of special units responsible for the investigation of torture and ill-treatment;

3. invited the Russian authorities to adopt additional measures aimed at delivering, at a high political level, a clear and firm message of “zero tolerance” of torture and ill-treatment, at improving safeguards against such acts and at reinforcing judicial control over investigations;

4. in this context, strongly urged the Russian authorities to address, without delay, the problem of the expiration of limitation periods, in particular, in the case of serious crimes such as torture committed by state agents;

5. further urged the Russian authorities to adopt effective measures to ensure that the domestic courts exclude any evidence found to have been obtained in breach of Article 3 of the Convention;

6. as regards the individual measures, noted with grave concern that no tangible progress has been made in the majority of cases in this group and called on the Russian authorities to intensify and accelerate investigation efforts taking into account the Court’s findings with a view to identifying and punishing those responsible and to ensure that the Committee receives information regarding all cases in this group;

7. noted with concern the allegations made by the applicant in case of Tangiyev about intimidation when exercising his right to seek the re-opening of the criminal proceedings in which he was found by the European Court to have been convicted on the basis of evidence obtained through torture and urged the Russian authorities to provide necessary clarifications;

8. decided to resume examination of this group of cases at the latest at their DH meeting in March 2015.

RUSSIAN FEDERATION

Application: 38411/02

Judgment final on 30/01/2008

GARABAYEV GROUP

Enhanced procedure: complex problem

Debate proposed

Reference texts:

Interim Resolution CM/ResDH(2013)200

Letter from the Committee of Ministers' Chairman to the Minister for Foreign Affairs of the Russian Federation (05/04/13) DH-DD(2013)394

Recent communications from the applicants

Yakubov case (30/04/2014) DH-DD(2014)571 and reply of the authorities (30/04/2014) DH-DD(2014)581

Azimov case (05/12/2013) DH-DD(2013)1313

From Human Rights Institute (Mamazhonov case) (18/06/2013) DH-DD(2013)720

Recent communications from the Russian Federation

Communication concerning the Yakubov case (30/04/2014) DH-DD(2014)581, (21/05/2014) DH-DD(2014)685

Communication concerning the Azimov case (14/01/2014) DH-DD(2014)151;

Action plan (10/01/2014) DH-DD(2014)58;

Communication concerning the case of Mamazhanov (08/07/2013) DH-DD(2013)768

Action plan on measures taken to prevent abduction and forcible removal for the Russian Federation of persons in respect of which requests for extradition have been made and interim measures have been indicated by the European Court (02/07/2013) DH-DD(2013)763

Additional action plan / action report (01/02/2013) DH-DD(2013)93

Action plan (09/02/2012) DH-DD(2012)152

Communication from the UNHCR (28/05/2014) DH-DD(2014)717

Information submitted on this group of cases which can 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

Letters from the Registry of the European Court

Kadirzhanov case (13/09/2013) DH(DD(2013)970; Saliyev case (12/07/2013) DH-DD(2013)926,

Mamazhonov case (09/07/2013) DH-DD(2013)783 ; Abdulkhakov case (28/02/2013) DH-DD(2013)228 ;

Kasymakhunov No. 2 case (24/01/2013) DH-DD(2013)75 ;

Savriddin Dzhurayev case (26/01/2012) DD(2012)214

Decision adopted at the 1186th meeting (December 2013) – classification of new cases

Decision adopted at the 1193rd meeting (March 2014)

Case description: The present group of cases concern different violations related to extradition (Articles 3, 5, 13 and 34).

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).

In another number of cases, the Court found that Article 3 had been breached as the applicants had been removed from Russian territory despite the risks of ill-treatment.

In three of these cases (Iskandarov, Abdulkhakov, Savriddin Dzhurayev), the Court established that the applicants had been abducted and forcibly transferred from Russian territory with passive or active involvement of the Russian authorities. In Savriddin Dzhurayev, the Court also found that the authorities had breached Article 3 by failing to take speedily relevant measures to protect the applicant from being forcibly transferred to Tajikistan after they were informed of his abduction and the imminent risk of such a transfer, and also by omitting to hold an effective investigation into the abduction.

Further, in three cases (Abdulkhakov, Savriddin Dzhurayev and Zokhidov),14 the Court considered that by failing to comply with the interim measure indicated under Rule 39 and prohibiting the applicants’ removal from Russian territory in a few cases, the authorities hindered the applicants’ right of individual petition (violation of Article 34).

As regards in particular the problem of disappearances and forcible transfers to Tajikistan and Uzbekistan, the Court noted, under Article 46, in the Savriddin Dzhurayev judgment (final on 9 September 2013), that “alarming complaints about [such] disappearance and forcible transfer of applicants … continue[d] to be regularly lodged with [it], notwithstanding the indication of interim measures and the Government’s assurances that those measures would be complied with” (§243). In this situation, the Court indicated under Article 46 that “the State’s obligations under the [cited] judgment require[d] the resolution of [that] recurrent problem without delay” (§259), and that the “decisive general measures” to be taken included “further improving domestic remedies in extradition and expulsion cases, ensuring the lawfulness of any State action in this area, effective protection of potential victims in line with the interim measures indicated by the Court and effective investigation into every breach of such measures or similar unlawful acts” (§258). Special attention was drawn to the two latter measures, with the Court insisting on 1) the creation of an appropriate practical mechanism capable of effectively protecting applicants against kidnapping (§262), and 2) the close scrutiny of investigations into the applicants’ disappearances at an appropriate official level (§263). The Court also found that in the circumstances of the case, it was incumbent on the respondent State to find out and use in good faith such legal, diplomatic and/or practical means as may be necessary to secure to the maximum possible extent the applicant’s rights under Article 3 (§253). The Court also indicated that it was not impossible for the respondent State to take remedial measures to protect the applicant against the existing risks to his life and health in a foreign jurisdiction (§254).

Status of execution: Individual measures: Concerning the three cases in which the Court found that the applicants had been abducted (whether or not they later re-appeared in the requesting countries) (Iskandarov, Abdulkhakov, Savriddin Dzhurayev), no significant progress in the criminal investigations into their abductions and irregular transfers has been reported.

As regards other measures, of a diplomatic or other character, in respect of these three applicants, the Russian authorities indicated that, in order to obtain information on the current situation of Mr Iskandarov, representatives of the Russian embassy in Tajikistan met with the First Deputy General Prosecutor of Tajikistan who informed them that no complaints had been received from him, enjoying visits by his relatives and the ability to contact media (DH-DD(2014)58). Further, the authorities noted that they have sent a request for information on the current situation of Savriddin Dzhurayev to the authorities of Tajikistan. As regards Mr Abdulkhakov, he would be in hiding after serving a “prison sentence” of a few months in Tajikistan, whereas he was initially wanted by the Uzbek authorities.

A further alleged abduction incident has been reported in a case pending before the Committee, the Azimov case (potential violation of Article 3 in case of his forced removal to Tajikistan – judgment final on 9 September 2013). According to the applicant’s representative, the applicant was abducted from the Centre for temporary accommodation of migrants in the Tver region on 3 December 2013. His whereabouts since then remain unknown (DH-DD(2013)1313). In view of this new allegation, the Committee, at the December 2013 meeting, urged the Russian authorities to promptly provide information on the investigation into this incident with a view to resuming its consideration at the latest at the March 2014 DH meeting (Decision item C1). In response, the Russian authorities indicated in January 2014 that a criminal investigation was opened into the circumstances of his disappearance and that measures were being taken to establish his whereabouts (DH-DD(2014)151).

At the 1193rd meeting (March 2014) the Committee expressed serious concern about the incident and in respect of the fact that the whereabouts of Mr Azimov had not yet been established, urging the Russian authorities to reinforce their investigation efforts and to continue to keep the Committee informed of all developments.

On 29 April 2014 yet another alleged incident of abduction was reported to the Committee of Ministers in the case of Yakubov (in its judgment which became final on 4 June 2012 the Court found a violation of Article 3 in case of the applicant’s forced removal to Uzbekistan). The matter was also reported to the Court which issued an indication under Rule 39 the same day.

In their communication of 30 April 2014, the Russian authorities submitted that they had taken note of the application of the interim measure by the European Court and were “undertaking necessary measures in this respect” (see DH-DD(2014)581).

On 21 May 2014, the Russian authorities informed the Committee that an inquiry had been initiated in order to establish the circumstances of the incident and the whereabouts of Mr Yakubov. This inquiry is still ongoing. The authorities noted that “the preliminary information received indicate[d] that Mr Yakubov was not apprehended by State authorities, including investigative or police authorities, and that no decision was taken on his forced removal from the territory of the Russian Federation. The whereabouts of Mr Yakubov appeared to be impossible to establish yet, and no evidence was obtained that he has crossed the State border of the Russian Federation”. The authorities specify that the applicant’s temporary asylum had expired in March 2014, but that an examination of his request for a new temporary asylum was due to take place on 13 May 2014 and that the applicant had not requested any special protection measures.

No further information has been submitted as regards the progress of investigation in the other similar cases, including that of Mr Azimov.

General measures: Since the Court delivered its judgment in the Iskandarov case in September 2010, the Committee has been confronted with several judgments relating to further disappearances and/or forcible transfers and also repeated allegations of such incidents (see the letters from the Court’s Registry DD(2012)214, DH-DD(2012)1046, DH-DD(2013)75, DH-DD(2013)783 and NGOs’ submissions DH-DD(2012)158, DH-DD(2012)422, DH-DD(2013)218, DH-DD(2013)720).

In response to this situation, the Russian authorities adopted a number of awareness-raising measures and instructions notably stressing the need to comply with the Court’s interim measures and to prevent any attempt of forcible removal of persons whose extradition was refused on account of the risk of torture and ill-treatment they may face in the requesting countries. The Committee however considered that these measures were insufficient and invited the authorities to adopt special protective measures in respect of the applicants who are exposed to such risks and underlined the need for special measures to ensure rapid and effective investigations into such incidents.

The Committee’s position was transmitted by the Chairman of the Committee of Ministers to the Russian Minister of Foreign Affairs in a letter in April 2013 (DH-DD(2013)394). No reply has so far been received.

In parallel, in the face of the continuation of this alarming situation and as incidents of disappearances continued to be reported (see notably the disappearance incident in the Mamazhonov case which occurred in Orenburg on 13 June 2013 – his current whereabouts still remain unknown; DH-DD(2013)720), the Committee adopted in September 2013 an Interim Resolution (CM/ResDH(2013)200). The Committee deeply regretted that the measures undertaken by the Russian Federation did not appear to have been sufficient to address the need for urgent adoption of special preventive and protective measures. Consequently the Committee exhorted the authorities to develop without further delay an appropriate mechanism tasked with both preventive and protective functions to ensure that applicants, in particular in respect of whom the Court has indicated an interim measure, benefit (following their release from detention) from immediate and effective protection against unlawful or irregular removal from the territory of Russia and the jurisdiction of the Russian courts. Despite this Interim Resolution, a new incident was reported on 5 December 2013 (see above under individual measures).

In response to this situation, the Russian authorities provided a new action plan on 10 January 2014 (DH-DD(2014)58). The plan notably refers to the wide dissemination of the Interim Resolution and the holding of an interdepartmental co-ordination meeting in which it was decided to enhance co-operation between State authorities and to adopt a number of measures of organisational and legislative nature aimed at preventing abductions and forcible removals. Further, the Federal Migration Service is currently working on installing additional security equipment in temporary accommodation centres for migrants, including alarms, as well as preparing a new draft law “On Refugees” to provide for additional security guarantees in these centres. The Russian authorities also indicated that the protection measures normally available in the framework of criminal proceedings to victims and witnesses can be extended to persons requested for extradition and benefitting from interim measures indicated by the European Court, following a request for such measures by the relevant person and initiation of criminal proceedings. According to the authorities, “guarantees had been created in Russia ensuring that in the case of a real risk of criminal offence against such person, after assessment of a particular situation the authorities can make a decision to apply special protective measures”. Lastly, updated lists of persons protected by the Court’s interim measures continue to be circulated to the competent bodies, including the Border Guard Service and the Supreme Court. No information was provided on the measures aimed at improving domestic investigations into the incidents.

At its 1193rd meeting, the Committee strongly urged the Russian authorities to promptly provide information on how they would ensure the practical implementation of the required protective and preventive mechanism and to transmit further details concerning the measures aimed at improving the efficiency of the investigations in all similar cases.

Application

Case

Judgment of

Final on

38411/02

GARABAYEV GROUP (list of cases)

07/06/2007

30/01/2008

1201st meeting - Notes:

Notwithstanding the Committee’s previous decision to resume examination of this group of cases in September 2014, it is proposed, in the light of the new alleged abduction incident reported, to examine it at the present meeting.

It is recalled that on 29 April 2014 the representative of Mr Yakubov alleged that the applicant had been abducted in Moscow earlier on the same day, from a car taking him to the local UNHCR office (for further details see DH-DD(2014)571). Considering the violations found by the European Court in the Yakubov case, the Secretariat informed the Russian authorities of the incident by telephone and email. Shortly afterwards, the applicant’s representative provided additional information that the European Court had also been seized and had provided an indication under Rule 39 of the Rules of Court that the applicant should not be removed to Uzbekistan. In his submission the applicant’s representative further specified that he had also immediately informed, by fax and email, all the authorities concerned of the incident.

The information submitted by the Russian authorities on 21 May 2014 indicates that the inquiry into the alleged abduction of Mr Yakubov is still ongoing. There is no indication of either an involvement of the State authorities in his disappearance or of his whereabouts. In view of the seriousness of the situation, it is important that the investigation continues, in particular taking into account the Court’s conclusion in the case of Savriddin Dzhurayev as regards the practice developed by certain State authorities in breach of their obligations under Russian law and under the Convention. Detailed information on further investigatory measures is thus necessary.

As regards the issues related to the protection of Mr Yakubov, it is recalled that in its Interim Resolution of September 2013, the Committee exhorted the authorities “to further develop without further delay an appropriate mechanism tasked with both preventive and protective functions to ensure that applicants, in particular in respect of whom the Court has indicated an interim measure, benefit (following their release from detention) from immediate and effective protection against unlawful or irregular removal from the territory of Russia and the jurisdiction of the Russian courts” (see CM/ResDH(2013)200). In the light of the Interim Resolution, it appears important that individuals concerned are effectively, ex officio, informed of the special protection available. The information submitted in the Yakubov case suggests that protection is only considered upon request. Consequently, the Russian authorities ought to ensure that all persons in situations similar to that of Mr Yakubov are made aware of the protective measures available to them and that such protection is offered unless the right thereto is explicitly waived.

Decisions

The Deputies

1. noted with grave concern that yet another applicant in this group of cases, Mr Yakubov, had allegedly been abducted in Moscow in April 2014 despite the repeated calls by the Committee of Ministers on the Russian authorities to take the necessary measures to prevent such incidents (see, in particular, Interim Resolution CM/ResDH(2013)200);

2. urged the Russian authorities to continue their investigation into Mr Yakubov’s disappearance in order to shed light on the circumstances of this incident, taking into account the findings of the European Court of Human Rights as regards the involvement of the State authorities in other cases, notably in the case of Savriddin Dzhurayev;

3. noted, with concern, that this incident casts doubts on the soundness of the preventive and protective arrangements set up by the Russian authorities in response to the Committee’s call in September 2013, and requested, in this context, the Russian authorities to ensure that relevant individuals are informed of the protective measures available;

4. further noted, with concern, that no information about any progress in the investigations into similar previous incidents in this group of cases has been provided;

5. invited the Russian authorities to provide information on the different issues raised in this group of cases in good time for their 1208th meeting (September 2014) (DH).

RUSSIAN FEDERATION15

Application: 43370/04

Judgment final on 19/10/2012

CATAN AND OTHERS

Enhanced procedure: complex problem

Reference texts:

Records (confidential)

1193rd meeting(March 2014), 1186th meeting (December 2013)

Communication from the Republic of Moldova

(03/03/2014) DH-DD(2014)284, (03/06/2014) DH-DD(2014)723

Communications from the applicants

(04/03/2013) DH-DD(2013)238, (26/02/2014) DH-DD(2014)275, (20/05/2014) DH-DD(2014)683rev

Communication from NGOs

DH-DD(2013)287

Decision adopted at the 1186th meeting (December 2013)

Decision adopted at the 1193rd meeting (March 2014)

Case description: Violation of the right to education concerning 170 children or parents of children from Moldovan/Romanian language schools located in the Transdniestrian region of the Republic of Moldova (violation of Article 2 of Protocol No. 1 by the Russian Federation). Pursuant to the “Moldavian Republic of Transdniestria” (the “MRT”) “law” on languages, they had suffered from the forced closure of these schools between August 2002 and July 2004, as well as from measures of harassment.

The European Court observed that there was no evidence of any direct participation by Russian agents in the measures taken against the applicants, nor of Russian involvement in or approbation for the “MRT”‘s language policy in general. Nonetheless, it held that the Russian Federation exercised effective control over the “MRT” during the period in question and that by virtue of its continued military, economic and political support for the “MRT”, which could not otherwise survive, the Russian Federation incurred responsibility under the Convention for the violation of the applicants’ rights to education.

Status of execution: At the 1186th meeting (December 2013) (DH), the Committee of Ministers “noted with concern that no information has been provided in this case by the authorities of the Russian Federation since the examination of the question of its classification at the 1164th meeting (March 2013) (DH)” and “urged these authorities to provide rapidly relevant information, in the form of an action plan or action report”. Notwithstanding the Committee of Ministers’ decision, no information has been transmitted. At the 1193rd meeting, (March 2014) (DH), the Committee of Ministers agreed “to debate the Catan case at [its] 1201st meeting (June 2014)”.

The applicants’ representatives sent a new communication to the Committee of Ministers (DH-DD(2014)683), in which they complained about the lack of payment of the just satisfaction granted by the Court. They also alleged that the applicants are subject to acts of intimidation and harassment.

Application

Case

Judgment of

Final on

43370/04+

CATAN AND OTHERS

19/10/2012

Grand Chamber

1201st meeting - Notes

To date, no information has been provided by the authorities of the Russian Federation, whether in the form of an action plan or in the form of an action report, despite the Committee’s requests and several letters from the Secretariat. Nor has there been a confirmation of payment of the just satisfaction granted to the applicants.

At the December 2013 DH meeting, the Russian authorities stated that they were in the process “of profound internal consultations, including with experts in international law, on the manner in which the judgment could be implemented (…)”.

Subsequently, the Republic of Moldova has notably informed the Committee of a deterioration of the situation of the latin-script schools in the Transdniestrian region (DH-DD(2014)284).

Decisions

The Deputies

1. underlined that, in its judgment in the case of Catan and Others, now final for more than one and a half years, the Court found that “by virtue of its continued military, economic and political support for the “MRT”, which could not otherwise survive, Russia incurs responsibility under the Convention for the violation of the applicants’ rights to education”;

2. expressed their deep concern in view of the reports of continuous violation of the applicants’ right to education, resulting from acts of intimidation and pressure affecting the functioning of the Latin script schools in the Transdniestrian region of the Republic of Moldova;

3. noted also with great concern that, notwithstanding the indication given by the Russian authorities in December 2013 that they were in the process of profound internal consultations on the manner in which the judgment could be implemented, they have still not provided concrete information on the individual or general measures taken or envisaged to give effect to the Court’s judgment, including on the payment of the just satisfaction awarded by the Court to the applicants;

4. recalled with insistence the unconditional obligation of every respondent State, under Article 46, paragraph 1, of the Convention, to abide by final judgments in cases to which it has been a party;

5. firmly calls upon the Russian authorities to take all possible measures to put an end to the violation of the applicants’ right to education and to transmit:

    - within one month, information on how they intend to guarantee that the Latin script schools continue to function for the school year 2014/2015; and

    - as soon as possible, and at the latest by 1 September 2014, a global action plan or action report responding fully to the Court’s judgment;

6. insisted that the Russian authorities pay the applicants, without further delay, the just satisfaction awarded by the Court;

7. agreed to resume consideration of this case at their 1208th meeting (September 2014) (DH) and, in the absence of information from the Russian authorities, instructed the Secretariat to prepare a draft interim resolution to be distributed with the revised draft order of business of this meeting.

TURKEY

Application: 25781/94

Judgment final 10/05/2001

CYPRUS AGAINST TURKEY

Enhanced procedure: Interstate case

Reference texts:

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

Information documents on the issue of property rights of the persons residing in the northern part of Cyprus:

CM/Inf/DH(2009)39, CM/Inf/DH(2013)23

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

Information provided by the Turkish authorities

(24/10/2012) DH-DD(2012)997, (04/12/2012) DH-DD(2012)1136, (27/02/2013) DH-DD(2013)222,

(27/02/2013) DH-DD(2013)220, (11/04/2013) DH-DD(2013)426 ; (14/05/2013) DH-DD(2013)530,

(31/05/2013) DH-DD(2013)626, (04/04/2014) DH-DD(2014)457

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

Memorandum concerning the cluster regarding property rights of Karpaz residents (02/06/2014)

DH-DD(2014)722

Information provided by the Cypriot authorities on enclaved persons

04/10/2012) DH-DD(2012)905, (26/11/2012) DH-DD(2012)1107, (26/03/2013) DH-DD(2013)326,

(30/05/2013) DH-DD(2013)617

Intervention of Cyprus during the 1157th meeting (restricted) DH-DD(2012)1148

Additional questions on the property rights of enclaved persons (04/02/2013) DH-DD(2013)124,

Additional questions on the property rights of enclaved persons (02/07/2013) DH-DD(2013)741

Memorandum on the property rights of enclaved persons (19/05/2014) DH-DD(2014)697

Decision adopted at the 1172nd meeting (June 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 in the northern part of Cyprus 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".

In its inadmissibility decision in the Demopoulos and 7 other cases delivered on 5 March 2010, the Grand Chamber found that Law No. 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) Request of the Government of Cyprus for a suspension of the examination of this issue

In December 2011 (1128th Deputies’ meeting, DH), the delegation of Cyprus requested the Committee of Ministers to suspend its examination of this question until the Court has pronounced itself on the application filed with the Court by the Government of Cyprus, in November 2011, under Article 41 of the Convention.

d) Latest examination by the Committee of Ministers

In March 2014, the Committee decided to resume consideration of the property rights of the displaced persons at its 1208th meeting (September 2014) (DH), in the light of all relevant facts or, in any event, at the latest at its DH meeting in March 2015.

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

The measures taken by the respondent State are summarised in the Information document CM/Inf/DH(2013)23 prepared by the Secretariat.

Latest examination by the Committee of Ministers

At its 1172nd meeting (June 2013) (DH), the Committee took note of the assessment of these questions presented in the above-mentioned Information document. The Committee invited interested delegations to provide the Secretariat by 30 June 2013 with the precise questions they considered still needed to be clarified and decided to resume the examination of the property rights of enclaved persons at the latest at its 1201st meeting (June 2014), in the light of the responses submitted by the Turkish delegation to these questions. Only the delegation of Cyprus submitted questions within the time limit (see DH-DD(2013)741). The Turkish authorities replied to these questions in a memorandum submitted on 04/04/2014 (see DH-DD(2014)457). The Cypriot authorities submitted a memorandum on this issue by letter dated 19/05/2014 (see DH-DD(2014)697).

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 1186th meeting (December 2013), the Deputies noted with great interest the exchange of views they had on this occasion with the members of the Committee on Missing Persons in Cyprus (CMP), which brought important clarifications on different issues raised in the framework of the implementation of the judgments Cyprus v. Turkey and Varnava v. Turkey. They also recalled the necessity of adopting a proactive approach as regards the search of the persons who are still missing, and called on the Turkish authorities to continue providing the CMP with all relevant information and to continue and intensify their efforts aimed at rapidly giving access to all relevant places. The Deputies noted with satisfaction in this respect the new information and permissions granted to the CMP so far to access military zones, in particular to a second fenced military area. They also noted the assurances of the Turkish authorities that they will continue to grant the CMP access to other military zones.

As regards the identified persons, the Deputies took note of the further information provided by the Turkish authorities on the progress of the investigations conducted into the death of these persons and invited the authorities to keep the Committee informed on the progress achieved in this field. In this context, while underlining once again the importance for investigators to have access to forensic data and to all the evidence kept by the CMP, the Deputies noted with satisfaction that the CMP keeps this data, as well as any material element which might constitute evidence in a criminal investigation, with the aim of transferring them to the investigators.

The Deputies decided to resume consideration of the issue of missing persons at their 1214th meeting (December 2014).

II. Judgment on just satisfaction of 12 May 2014

In this judgment, the Grand Chamber said that Turkey was to pay the Government of Cyprus 30,000,000 Euros in respect of non-pecuniary damage suffered by the relatives of the missing persons and 60,000,000 Euros in respect of non-pecuniary damage suffered by the enclaved Greek Cypriot residents of the Karpas peninsula. The Court indicated that these amounts shall be distributed afterwards by the Government of Cyprus to the individual victims under the supervision of the Committee of Ministers within eighteen months from the date of the payment or within any other period considered appropriate by the Committee of Ministers.

As regards the Cypriot Government’s application for a “declaratory judgment” see §§61-63 of the judgment.

III. 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

Decisions

The Deputies

1. with a view to facilitating their supervision of the execution of this judgment, instructed the Secretariat to present a general stock-taking concerning the different violations established by the Court, as well as an analysis of the impact of the judgment of the 12 May 2014 on just satisfaction, in good time for examination during the 1214th meeting (December 2014) (DH);

2. in the light of this examination, will decide at that meeting in December, on the order and the calendar for the examination of the three clusters of the principal judgment concerning the missing persons, the property rights of enclaved persons and the property rights of displaced persons.

TURKEY

Application: 16064/90

Judgment final on 18/09/2009

VARNAVA AND OTHERS

Enhanced procedure: Complex problem

Reference texts:

Interim Resolution CM/ResDH(2013)201

Letter from the Chair of the Committee of Ministers sent to the Minister of Foreign Affairs of Turkey concerning the cases of Varnava and Xenides-Arestis group (07/04/2014) DH-DD(2014)491

Communication from the applicants' representative (05/05/2014) DH-DD(2014)583

Communication from the applicants' representative (19/05/2014) DH-DD(2014)684

Decision adopted at the 1193rd meeting (March 2014)

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: Individual measures: a) effective investigations: the Turkish authorities have indicated that the Committee of Missing Persons in Cyprus (CMP) continues its work regarding the eight persons who are still missing in this case (see also the measures examined within the framework of the Cyprus against Turkey case). They submitted information on the progress of the investigation opened in relation to the case of Mr Hadjipanteli, whose remains have been found and identified by the CMP in 2007 (see DH-DD(2013)221, DH-DD(2013)1302). At its 1186th meeting (December 2013) (DH), the Committee invited the Turkish authorities to continue keeping it informed on the progress of the investigation in the Hadjipantelli case and insisted on its request to receive updated information on the individual measures taken in respect of the eight other missing persons concerned by this case. The Committee decided to resume consideration of the question of missing persons at its 1214th meeting (December 2014) (DH).

b) Payment of the just satisfaction: at the 1193rd meeting (March 2014) (DH), the Committee deeply regretted that to date the Turkish authorities have not responded to the interim resolutions adopted in the case of Xenides-Arestis in 2008 and 2010 and to that adopted in the Varnava case in 2013. It invited, in consequence, the Chair of the Committee of Ministers to send a letter to his Turkish counterpart in order to convey the Committee’s continuing concern relating to the lack of payment of the just satisfaction awarded in 33 cases of the Xenides-Arestis group and in the Varnava case. The Committee decided to resume consideration of the issue of payment of the just satisfaction in these cases at its 1201st meeting (June 2014) (DH). The Chairman of the Committee sent a letter to his Turkish counterpart on 07/04/2014 (see document DH-DD(2014)491), recalling that a continuing refusal to abide by the unconditional obligation to pay the just satisfaction awarded by the Court would be in flagrant conflict with Turkey’s international obligations, both as a State party to the Convention and as a member State of the Council of Europe.

General measures: see the measures examined within the framework of the Cyprus against Turkey case.

Application

Case

Judgment of

Final on

16064/90+

VARNAVA AND OTHERS

18/09/2009

Grand Chamber

1201st meeting – Notes:

See under Xenides-Arestis group

Decisions

The Deputies

1. recalled that last April the Chairman of the Committee of Ministers sent a letter to his Turkish counterpart informing him of the Committee’s continuing concern relating to the lack of payment of the just satisfaction awarded in the Varnava case and in 33 cases of the Xenides-Arestis group;

2. deplored that this letter remains unanswered to date;

3. decided to resume consideration of this question at their 1208th meeting (September 2014) (DH) and instructed the Secretariat, should the situation remained unchanged, to prepare a draft interim resolution, to be circulated in the draft revised order of business.

TURKEY

Application: 46347/99

Judgments final on 22/03/2006, 23/05/2007

XENIDES-ARESTIS GROUP

Enhanced procedure: Requested by the Secretariat, just satisfaction payment

Reference texts:

Interim Resolutions CM/ResDH(2008)99, CM/Int/ResDH(2010)33

Letter from the Chair of the Committee of Ministers sent to the Minister of Foreign Affairs of Turkey concerning the cases of Varnava and Xenides-Arestis group (07/04/2014) DH-DD(2014)491

Communication from the applicants' representative in 12 cases v. Turkey (05/05/2014) DH-DD(2014)584

Communication from the applicant (Orphanides) (07/05/2014) DH-DD(2014)626

Communication from the applicant (Josephides) (13/05/2014) DH-DD(2014)651

Decision adopted at the 1193rd meeting (March 2014)

Case description: Continuous denial of access to property in the northern part of Cyprus and consequent loss of control thereof (Art. 1 Prot. 1). Violation of the right to respect for applicants' home in some cases (Art. 8).

Status of execution: Individual measures:

a) Payment of the just satisfaction: the Turkish authorities paid the just satisfaction awarded in the Xenides-Arestis judgment of 22/12/2005 for costs and expenses. As regards the Xenides-Arestis judgment of 07/12/2006, the sums awarded for material and moral damages and for cost and expenses are due since 2007. In the Demades case, the sums awarded for just satisfaction are due since 2009 and in the more recent cases – since 2010-2012. In the Xenides-Arestis case the Committee of Ministers adopted two interim resolutions, in 2008 and 2010, strongly urging Turkey to pay the just satisfaction awarded by the European Court in the judgment of 07/12/2006, together with the default interest due. In the majority of these cases, the applicants or their representatives have addressed the Committee of Ministers on several occasions to complain about the lack of payment of the just satisfaction awarded to them.

At the 1193rd meeting (March 2014) (DH), the Committee deeply regretted that to date the Turkish authorities have not responded to the interim resolutions adopted in the case of Xenides-Arestis and to that adopted in the Varnava case in 2013. Consequently, it invited the Chair of the Committee of Ministers to send a letter to his Turkish counterpart in order to convey the Committee’s continuing concern relating to the lack of payment of the just satisfaction awarded in 33 cases of the Xenides-Arestis group and in the Varnava case. The Committee decided to resume consideration of the issue of payment of the just satisfaction in these cases at its 1201st meeting (June 2014) (DH). The Chairman of the Committee sent a letter to his Turkish counterpart on 07/04/2014 (see DH-DD(2014)491), recalling that a continuing refusal to abide by the unconditional obligation to pay the just satisfaction awarded by the Court would be in flagrant conflict with Turkey’s international obligations, both as a State party to the Convention and as a member State of the Council of Europe.

b) Individual measures concerning the applicants’ properties: for more details, see the general measures regarding the property rights of the displaced persons in the case of Cyprus v. Turkey.

General measures: these measures are examined in the framework of the case Cyprus against Turkey.

Application

Case

Judgment of

Final on

46347/99

XENIDES-ARESTIS GROUP

(list of cases)

22/12/2005

07/12/2006

22/03/2006

23/05/2007

1201st meeting - Notes:

At the present meeting, it is proposed that the Deputies focus on the issue of the payment of the just satisfaction awarded to the applicants in these cases and examine it together with that of the payment of the just satisfaction in the Varnava case (see decision adopted at the 1193rd meeting, March 2014 (DH)).

Decisions

The Deputies

1. recalled that last April the Chairman of the Committee of Ministers sent a letter to his Turkish counterpart informing him of the Committee’s continuing concern relating to the lack of payment of the just satisfaction awarded in the Varnava case and in 33 cases of the Xenides-Arestis group;

2. deplored that this letter remains unanswered to date;

3. decided to resume consideration of this question at their 1208th meeting (September 2014) (DH) and instructed the Secretariat, should the situation remained unchanged, to prepare a draft interim resolution, to be circulated in the draft revised order of business.

TURKEY

Applications: 22678/93, 43453/04, 14526/07

Judgments final on 09/06/1998, 06/10/2010, 20/01/2010

INCAL GROUP

GÖZEL AND ÖZER GROUP

ÜRPER AND OTHERS GROUP

Enhanced procedure: Structural and complex problem

Reference texts:

Interim Resolutions ResDH(2001)106 and ResDH(2004)38;

Information documents CM/Inf(2003)43; CM/Inf/DH(2008)26

Action plan (Inçal group) (03/04/2014) DH-DD(2014)502

Action report (Ürper group) (15/11/2012) DH-DD(2012)1098

Action plan (Ölmez and Turgay) (01/02/2012) DH-DD(2012)179

Decision adopted at the 1100th meeting (December 2010, p. 405)

Case description: Violations of the applicants’ right to freedom of expression (Article 10) on account of:

    - their convictions for having disseminated propaganda on behalf of terrorist organisations (under Articles 6 and 7 of Anti-Terrorism Law); published articles or books or prepared messages addressed to a public audience inciting to hatred or hostility or praised a crime or a criminal (under Article 312 of the former Criminal Code (Articles 215 and 216 in the Criminal Code currently in force)); insulted or vilified the Turkish nation, the Turkish Republic, the Grand National Assembly, or the moral personality of the Government, ministries, armed forces (under Article 159 of the former Criminal Code (Article 301 in the Criminal Code currently in force)) (Incal group of cases);

    - automatic convictions by virtue of Article 6 § 2 of Anti-Terrorism Law on account of publication of statements made by a terrorist organisation without taking into account statements’ context or content (Gözel and Özer group of cases);

    - practice of banning future publications of periodicals for periods ranging from 15 days to a month on the basis of Article 6 § 5 of Anti-Terrorism Law (Ürper group of cases).

According to the Court, these statements, articles, books, publications etc. did not incite to hatred or violence and therefore the interferences with the applicants’ freedom of expression were not justified.

Structural nature of the problem:

In its judgments delivered in the cases of Gözel and Özer v. Turkey as well as Ürper and others v. Turkey, the Court held under Article 46 of the Convention that the violations found disclosed a structural problem and that Turkey should revise Article 6 §§ 2 and 5 of Anti-Terrorism Law.

Violations under Article 6:

In certain cases, the Court found violations of Article 6 on account of: lack of independence and impartiality of state security courts, failure to communicate the prosecutors’ opinion to applicants, lack of access to legal aid in police custody and excessive length of proceedings.

Friendly settlements:

The Turkish Government concluded a number of friendly settlements by which they undertook to bring the Turkish law and practice into conformity with Convention requirements.

Status of execution:

Individual measures:

Erasure of the applicant’s convictions from their criminal records with regard to Ürper group of cases: Article 6 § 5 of Anti-Terrorism Law was abrogated in July 2012, following which convictions under this provision were erased ex officio (according to Law on Criminal Records, criminal records are erased automatically when a crime is decriminalised).

Reopening of proceedings: The applicants can request the reopening of proceedings in their cases following the legislative amendments which were adopted in April 2013. The Turkish authorities indicated that a number of applicants requested the reopening of proceedings in their cases and that the convictions against them had been quashed in the reopened proceedings, which resulted in the erasure of their criminal records.

General Measures:It is recalled that at the 1028th meeting (June 2008) (DH), the Committee of Ministers examined the measures taken in this group of cases on the basis of information received until April 2008 (see CM/Inf/DH(2008)26 for the measures adopted and the outstanding questions). The measures taken since then appear, in particular, in document DH-DD(2014)502 and are summarised below:

Legislative measures: Articles 6 § 2 and 7 § 2 of Anti-terrorism Law were amended in April 2013 so as to only criminalise expressions that justify or praise or encourage the use of violence, force or threats. Article 6 § 5 of Anti-terrorism Law was abrogated in July 2012. Article 312 of the former Criminal Code was partially replaced with Article 215 which was also amended in April 2013, the latter amendment adding, as an element of the crime, the requirement of an explicit and imminent danger to the public order. Article 159 of the former Criminal Code was replaced with Article 301 of the Criminal Code which was also amended in April 2008 with the purpose of narrowing its scope of application.

Developments in the domestic case-law: The Turkish authorities provided examples of court decisions delivered by the Court of Cassation and first instance courts between 2012 and 2013, with the aim of demonstrating that Turkish courts have started applying Convention principles at domestic level. The examples provided mainly concern cases in which journalists, prisoners, members of a political party or of NGOs had been prosecuted for: a) making propaganda on behalf of terrorist organisations under Article 7 § 2 of Anti-terrorism law; b) praising a crime or a criminal under Article 215 of the Criminal Code; c) inciting to hatred or hostility under Article 216 of the Criminal Code. In all of these decisions, the domestic courts acquitted the accused, relying on the Convention and the Court’s case-law and finding that the statements or speeches made by the accused did not constitute incitement to hatred or violence and therefore remained within the limits of freedom of expression.

The Turkish authorities further presented statistical information in order to demonstrate that there has been a significant drop in the number of indictments lodged under former Article 312 of the Criminal Code following its amendment (1310 indictments before the amendment in 2005. After the amendment the number of indictments under Article 216 dropped to: 106 in 2006; 412 in 2010 and 248 in 2012).

Project on Freedom of Expression and Media in Turkey: It was carried out between January 2012 and April 2014 by the Department for the Execution of Judgments and was funded by the Human Rights Trust Fund, Norway, the Council of Europe and the High Council of Judges and Prosecutors of Turkey. The project aimed at identifying shortcomings in the Turkish legislation which triggered most of the violations found by the European Court and enhancing the direct application of the Court’s case-law at domestic level.

The following activities were carried out within the context of the project:

- “High Level Conference on Freedom of Expression and Media Freedom in Turkey” (organised in February 2013) to draw the attention of the general public to the problem of freedom of expression as well as to the need for legislative reform. In their opening speeches, Secretary General Thorbjørn Jagland, the former Minister of Justice Sadullah Ergin and the presidents of certain high courts stressed that Turkey needed to make progress in this field with a view to aligning its legislation and practice with Convention standards. The conference was widely reported both by national and international media;

- Six study visits were organised to Germany, Spain and Strasbourg to give the opportunity to Turkish judges and prosecutors to establish contacts with their German and Spanish counterparts and to make a comparison on how anti-terror legislation is implemented in these countries. 95 judges and prosecutors, mostly from certain high courts, attended the study visits.

- Ten round-table meetings were organised in Turkey with the participation of approximately 400 judges and prosecutors mostly from first instance courts. Judges and prosecutors were able to discuss the Court’s case-law on freedom of expression issues and had therefore the opportunity to examine the Convention standards from a broader perspective.

Professional Training and Other Awareness Raising Activities: A number of such activities have been carried out in recent years in co-operation with the Turkish Justice Academy, Turkish Ministry of Justice, High Council of Judges and Prosecutors, Council of Europe and with the Dutch Embassy in Turkey in order to raise awareness amongst members of the judiciary on freedom of expression issues.

National Action Plan on Prevention of violations of Convention rights: This Plan was adopted on 24/02/2014. It was prepared to address the problems identified by the Court in its judgments against Turkey and to ensure their execution. Its section on freedom of expression envisages numerous measures such as the impact analyses of the recent legislative amendments, a review of Article 301 of Criminal Code and further awareness raising activities.

Right of Individual Application: The right of individual application to the Constitutional Court became operational in September 2012. Accordingly, anyone claiming that his/her right has been violated under the Convention and the Turkish Constitution can lodge an application before the Constitutional Court. In its inadmissibility decision of 30 April 2013 in the case of Uzun v. Turkey, the Court held that the procedure before the Constitutional Court afforded, in principle, an appropriate mechanism for the protection of human rights and fundamental freedoms.

Application

Case

Judgment of

Final on

INCAL GROUP

22678/93

INCAL GROUP (list of cases)

09/06/1998

 

GÖZEL AND ÖZER GROUP

43453/04+

GÖZEL AND ÖZER

06/07/2010

06/10/2010

1544/07

BELEK AND ÖZKURT

16/07/2013

16/10/2013

ÜRPER AND OTHERS GROUP

14526/07+

ÜRPER AND OTHERS

20/10/2009

20/01/2010

55036/07+

ÜRPER AND OTHERS

26/01/2010

26/04/2010

2318/09+

ÖLMEZ AND TURGAY

05/10/2010

05/01/2011

8306/08+

TURGAY AND OTHERS

15/06/2010

15/09/2010

13710/08+

TURGAY AND OTHERS No. 2

21/09/2010

21/12/2010

21950/08+

TURGAY AND OTHERS No. 3

21/09/2010

21/12/2010

29572/08+

TURGAY AND OTHERS No. 4

21/09/2010

21/12/2010

32869/08+

TURGAY AND OTHERS No. 5

21/09/2010

21/12/2010

42599/08+

GÜDENOĞLU AND OTHERS

29/01/2013

29/04/2013

1201st meeting - Notes:

Individual measures: The erasure of the applicants’ convictions from their criminal records as a consequence of the abrogation of Article 6 § 5 of Anti-Terrorism Law and of the quashing of convictions in reopened proceedings in certain cases are welcome developments. Information is expected on the erasure of the applicants’ convictions in all cases.

General measures:

Legislative measures: The Turkish authorities have taken important legislative measures in order to align Turkish legislation with Convention standards. In particular:

a) Amendment to Article 6§2 of Anti-Terrorism Law: Before the amendment, this Article contained no obligation to make a contextual examination in deciding whether or not an expression incited hatred or violence. After the amendment, courts will have to examine whether an expression justifies, praises or encourages the use of violence, force or threats. The amendment is therefore in line with the Court’s findings in the Gözel and Özer judgment.

b) Abrogation of Article 6 § 5 of Anti-Terrorism Law satisfies the Court’s request to revise this Article in the Ürper and others judgment. The Committee might therefore consider the closure of the cases examined under the Ürper group.

c) Amendment to Article 7 § 2 of Anti-Terrorism Law: This Article was amended in a similar manner as Article 6 § 2 in that domestic courts will have to examine whether or not propaganda made by terrorist organisations justifies, praises or encourages the use of violence, force or threats. Before the amendment, the term “propaganda” was rather vague and could be interpreted by domestic courts broadly (see for example, the judgments in the cases of Faruk Temel (16853/05) and Gül and others (4870/02)). The amendment provides a more concrete definition of the crime of making propaganda on behalf of terrorist organisations.

d) Amendment to Article 215 (former Article 312) of the Criminal Code: This additional element of crime, the requirement of an explicit and imminent danger to public order, restricts the scope of the crime and is therefore considered to be a positive amendment.

e) Amendment to Article 301 (former Article 159) of the Criminal Code: A number of amendments have been introduced to this Article. These are: 1) the scope of the crime was narrowed by replacing the word “Turkishness” with “Turkish nation”; 2) the prosecution of the crime was subjected to the authorisation of the Minister of Justice; 3) the sentences imposed were reduced; and 4) expressions aimed at criticism shall not constitute a crime. The additional condition brought in this Article restricts its scope and is therefore considered to be a positive amendment. However, as indicated by the Court in its judgment in the case of Altug Taner Akçam v. Turkey, the fact that the prosecution of the crimes under this Article is still subject to the authorisation of the Minister of Justice might lead to arbitrary prosecutions because of possible political changes, so that this amendment does not provide a reliable and continuous guarantee against abusive application of this Article (see, § 94). This provision should therefore be revised in order to meet the “quality of law” required by the Court’s settled case-law.

The changes introduced in the legislation can be considered as a positive step forward for preventing future violations. However, the implementation of this legislation in compliance with Convention standards is of crucial importance to ensure the full execution of these judgments.

Project on Freedom of Expression and Media in Turkey: The project was a successful example of close co-operation between the Council of Europe and the Turkish authorities which yielded tangible results. Firstly, the participation of the Secretary General and the former Turkish Minister of Justice to the High Level Conference played a triggering role in the introduction of legislative amendments. In addition, there has been an increase in the number of high court decisions applying Convention case-law and a decrease in the number of prosecutions on the basis of the provisions that were at the origin of the violations in these cases. The project partners have reported that the project played an important role in this positive trend because it provided a platform for the beneficiaries to interact and to discuss the Court’s case-law and the domestic practice with academics, experts as well as with German and Spanish counterparts.

Case-law developments: The sample of court decisions provided by the Turkish authorities demonstrates that there is a general positive development in judicial practice in respect of freedom of expression. In particular, the decisions delivered by the Court of Cassation are of great importance because they can set the example for the first instance courts and direct the practice at national level in favour of the protection of freedom of expression.

However, it should be noted that this group of cases are under the Committee’s supervision since 1998 when the first judgment in the case of Incal was delivered. The large number of judgments finding violations since then came from a wide range of structural problems that have existed for a long time in Turkish legislation and, most importantly, in judicial practice. The majority of the legislative measures indicated above came into force in 2012 and 2013 and therefore the positive trends in judicial practice are very recent only. It would therefore remain necessary to continue to emphasise that domestic courts should fully apply the case-law of the Court both in their assessments and reasoning. The full execution of this group of cases will also require that the Court’s well-established case-law is fully applied by domestic courts at all levels. In this respect, the Constitutional Court has an important role to play in setting an example following the recognition of the right of individual application.

Decisions

The Deputies

1. noted, with satisfaction, that the recent legislative amendments made to the Anti-Terrorism Law and the Criminal Code restrict the scope of certain crimes to expression containing incitement to hatred and violence, thereby responding to the violations found by the Court;

2. noted also with satisfaction the abrogation of Article 6 § 5 of the Anti-Terrorism Law and therefore decided to close the supervision of the execution of the Ürper group of cases;

3. invited the Turkish authorities to revise Article 301 of the Criminal Code with a view to ensuring that this Article meets the “quality of law” requirement of the Court’s settled case-law;

4. welcomed the positive developments in domestic case-law, although stressed that it still appears necessary for domestic courts to incorporate fully the case-law of the Court into their assessment and reasoning, and therefore strongly encouraged the Turkish authorities to ensure that the Court’s case-law is fully applied by domestic courts at all levels;

5. invited the Turkish authorities to take the necessary measures to ensure that the convictions of all applicants in the Incal and Gözel and Özer groups of cases are erased from their criminal records;

6. decided to review the progress made in these cases at their DH meeting in June 2015, at the latest.

UKRAINE

Application: 21722/11

Judgment final on 27/05/2013

OLEKSANDR VOLKOV

Enhanced procedure: Urgent individual measures + complex problem

Reference texts:

Communications from Ukraine

Action plan (07/04/2014) DH-DD(2014)462, (11/01/2014) DH-DD(2014)89 ;

Action plan (22/07/2013) DH-DD(2013)834; (24/10/2013) DH-DD(2013)1166

Communications from the applicant or his representative

(13/02/2014) DH-DD(2014)241; (15/11/2013) DH-DD(2013)1274, (19/07/2013) DH-DD(2013)836

Communications from NGOs which can 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/UKR-ai4_en.asp

Decision adopted at the 1193rd meeting (March 2014)

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 the domestic law and as, moreover, the 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 in order to execute this judgment, as follows:

On 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).

On 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: Individual measures: The Court awarded the applicant just satisfaction in respect of non-pecuniary damage. As regards the question of compensation for pecuniary damage, the Court held that it was not ready for decision and accordingly reserved that question.

The Ukrainian authorities paid the amount of just satisfaction for non-pecuniary damages together with default interest and a certain amount for costs and expenses. The Ukrainian authorities indicated that the outstanding amount will be paid soon to the applicant.

As regards the applicant’s reinstatement in his previous post, the Committee has been following closely the issue since the judgment became final and, on several occasions, has called upon the Ukrainian authorities to ensure the applicant’s reintegration.

In their communication of April 2014 (DH-DD(2014)462), the Ukrainian authorities indicated that a draft resolution, which will allow the reinstatement of the applicant, is pending before Parliament. On 12 March 2014, this draft resolution was discussed within the parliamentary commission on Justice and Rule of Law. The parliamentary commission proposed to register the draft resolution in the order of business of the current parliamentary session. It also recommended the adoption of this draft resolution.

General measures: During the last examination in March 2014, the Committee encouraged the Ukrainian authorities to pursue in close co-operation with the Secretariat the necessary constitutional and legislative reforms to improve the independence of the Ukrainian judicial system, taking into account fully the requirements of the European Convention.

In their most recent communication, the Ukrainian authorities provided no information about any legislative reforms.

Application

Case

Judgment of

Final on

21722/11

OLEKSANDR VOLKOV

09/01/2013

27/05/2013

1201st meeting - Notes:

Individual measures:

It is noted with interest that a draft resolution, which will allow the reinstatement of the applicant to his post of judge, is currently pending before the Ukrainian Parliament. It is important that this draft resolution is adopted without delay with a view to complying with the Court’s judgment in the present case.

General measures:

It is important that the Ukrainian authorities now provide a detailed and revised action plan on the developments concerning the ongoing constitutional and legislative reforms in order to improve the independence of the Ukrainian judicial system. It is noted, in this context, that certain relevant reforms took place in April 2014: the Ukrainian Parliament adopted Law No. 1188-VII “On Restoring Confidence in the Judicial Power in Ukraine”, which came into force on 11 April.

In consequence, it is important to receive, without delay, clarifications on the possible impact of this law on the general measures required for the execution of this judgment.

Decisions

The Deputies

1. as regards the individual measures, noted with interest the information provided by the Ukrainian authorities that a draft resolution, allowing the reinstatement of the applicant to his post of judge of the Supreme Court, is pending before Parliament and expressed their confidence that this draft resolution will be adopted without delay;

2. as regards the general measures, urged the Ukrainian authorities to provide, without further delay, a detailed and revised action plan regarding the ongoing constitutional and legislative reforms to improve the independence of the Ukrainian judicial system and to clarify any impact of Law No. 1188-VII “On Restoring Confidence in the Judicial Power in Ukraine” on the general measures required for the full execution of the judgment;

3. reiterated their encouragement to the Ukrainian authorities to pursue in close co-operation with the Secretariat, the constitutional and legislative reforms necessary to improve the independence of the Ukrainian judicial system, taking fully into account the requirements of the European Convention.

UKRAINE

Application: 20372/11

Judgment final on 11/07/2013

VYERENTSOV

Enhanced procedure: Structural problem

Reference texts:

Communications from Ukraine

Action plan (07/04/2014) DH-DD(2014)458, Action plan (14/11/2013) DH-DD(2013)1270

Decision adopted at the 1193rd meeting (March 2014)

Case description: The case concerns the violations of the applicant’s right to freedom of assembly and the principle of “no punishment without law” on account of his conviction for having organised, on behalf of a Human Rights NGO, a peaceful demonstration in October 2010 (violations of Articles 11 and 7).

The applicant was convicted and sentenced on the basis of the provisions of the Code on Administrative Offences because he “breached the procedure for organising and holding a demonstration”. The European Court held that the application of this Code provided for the legal basis for the applicant’s conviction. However, given that there was no clear and foreseeable law regulating the procedure for organising and holding demonstrations, the applicant’s conviction for violating a non-existing procedure was incompatible with Article 7.

The Court held that the violations under Articles 11 and 7 “stemm[ed] from a legislative lacuna concerning freedom of assembly which remain[ed] in the Ukrainian legal system for more than two decades”. “Having regard to the structural nature of the problem disclosed in the present case, the Court stress[ed] that specific reforms in Ukraine’s legislation and administrative practice should be urgently implemented in order to bring such legislation and practice into line with the Court’s conclusions in the present judgment and to ensure their compliance with the requirements of Articles 7 and 11 of the Convention”.

The Court also found the following violations of the applicant’s right to a fair trial: a) the applicant was not given adequate time and facilities to prepare his defence; b) his request to be represented by a lawyer was refused by domestic court; c) his request to have witness examined was rejected by domestic courts; d) the domestic courts’ decision sentencing the applicant lacked adequate reasoning (violations of Article 6§§1 + 3(b) + (c) + (d)). These violations are dealt with within the context of the Kornev and Karpenko case and the Nechiporuk and Yonkalo case.

Status of execution: Individual measures: Following the European Court’s judgment, the applicant requested the revision of his case. By judgment of 3 March 2014, the Supreme Court granted his request and quashed his sentence.

General measures: In their action plan of November 2013 (DH-DD(2013)1270), the Ukrainian authorities indicated that two draft laws on the right to freedom of assembly are pending before the Ukrainian Parliament for adoption (these drafts laws are: “On the Freedom of Peaceful Assembly” No. 2508a dated 4 July 2013 and “On the Freedom of Peaceful Assembly” No. 2508a-1 of 17 July 2013). These draft laws also contained legislative amendments to the relevant provisions of other laws, such as, Code of Ukraine of Administrative Offences, Code of Administrative Procedure of Ukraine and Law of Ukraine “on the Police”.

In its decision adopted in March 2014, the Committee called upon the Ukrainian authorities to bring the legislation and practice into line with the Convention’s requirements, taking into account the specific indications given by the Court in the present case. The Committee also highlighted in the meantime the urgency of ensuring that administrative practice is in conformity with the Convention principles and strongly encouraged the Ukrainian authorities to work in close co-operation with the Secretariat in this reform process.

In response to this decision, the authorities clarified in April 2014 that the above-mentioned draft laws were registered in the order of business of Parliament’s plenary session of February – July 2014.

Application

Case

Judgment of

Final on

20372/11

VYERENTSOV

11/04/2013

11/07/2013

1201st meeting - Notes:

Individual measures: The decision of the Supreme Court of 3 March 2014, which quashed the applicant’s administrative sentence, is a welcome development.

General measures: As the Committee stressed in its decision adopted at the 1193rd meeting (March 2014), the right to freedom of assembly as guaranteed by Article 11 is one of the foundations of a democratic society. It is therefore of the utmost importance that the legislative framework on freedom of assembly is rapidly brought into conformity with Convention requirements as set out in the Court’s case-law and that the legislative process is accelerated.

It appears from the information provided by the Ukrainian authorities that the two draft laws that had been previously announced are now registered in the order of business of Parliament’s plenary session of February-July 2014. The website of the Ukrainian Parliament states that the competent parliamentary commission recommended that the legislative work should first be based on the draft law No. 2508a. It is noted in this respect that the Ukrainian authorities and the Secretariat are co-operating on this draft legislation to ensure that the legislative framework is in conformity with Convention requirements, which co-operation should be encouraged.

It is recalled that in its decision adopted at the 1193rd meeting (March 2014) the Committee “highlighted, in the meantime, the urgency of ensuring that administrative practice is in conformity with the Convention principles”16.

Decisions

The Deputies

1. concerning individual measures, welcomed the Supreme Court’s decision of 3 March 2014 which quashed the applicant’s administrative sentence;

2. concerning general measures, stressed that it is of the utmost importance that the legislative framework on freedom of assembly is rapidly brought into conformity with Convention requirements, as set out in the Court’s case-law, and that the legislative process is accelerated;

3. noted with satisfaction that the Ukrainian authorities and the Secretariat are co-operating on the draft legislation on freedom of assembly and encouraged them to make full use of this co-operation to ensure that the legislative framework is in conformity with the above-mentioned requirements;

4. pending the adoption of the legislative framework, highlighted once again the urgency of ensuring that the administrative practice is in conformity with the Convention principles.

UKRAINE

Application: 23893/03

Judgment final on 15/08/2012

KAVERZIN AND

AFANASYEV GROUP

Enhanced procedure: Structural / complex problem

Reference texts:

Communications from Ukraine

Action plan (04/04/2014) DH-DD(2014)463, Action plan (Kaverzin) (09/04/2013) DH-DD(2013)411, Communication (Kharchenko, Kaverzin, Merit, Khaylo and Balitskiy) (16/04/2013) DH-DD(2013)427

Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee

for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)

in October 2013 , published on 29 April 2014 - CPT/Inf (2014) 15

Decision adopted at the 1172nd meeting (June 2013)

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); and 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), the Court indicated, under Article 46, 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 concerns, in addition, 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; and unfair trial (Articles 3, 5§1, 5§3, 5§5, 6§1, 6§3, 13, 1 of Protocol No. 1).

Status of execution: Individual measures: In their Action plan of April 2014 (DH-DD(2014)463), the authorities provided information on the criminal investigation aimed at identifying and/or punishing persons guilty of ill-treatment towards the applicants in the cases of the present group. In the majority of cases, the investigations were terminated without action. In one case, the persons suspected of ill-treatment were identified and sent to the court but were not punished because of limitation periods. In two cases, the investigation is still pending. In a certain number of cases, investigation was not carried out. In one case, the case file was destroyed due to the expiry of the time-limit for its retention.

General measures: The action plan submitted in April 2013 by the Ukrainian authorities was set out in the notes prepared in this group of cases for the 1172nd meeting (DH-DD(2013)411). The developments indicated in this action plan mainly concerned the coming into force of the Code of Criminal Procedure (“CCP”) introducing and/or reinforcing fundamental guarantees against ill-treatment as well as the introduction of an investigative judge who is in charge of supervising the handling of criminal investigations and of examining criminal complaints of ill-treatment against members of security forces. They also concerned a certain number of other measures and, in particular, the introduction of the National Prevention Mechanism.

In their recent communication of April 2014, the authorities also indicated that the Minister of Justice has started a project to create a permanent committee of the rights of detainees comprising the representatives of competent institutions and civil society. This committee will be in charge of carrying out visits to detention premises and of making proposals to ensure respect for the rights of persons deprived of their liberty.

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

33627/06

GRINENKO

15/11/2012

15/02/2013

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

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

30075/06

ZAMFERESKO

15/11/2012

15/02/2013

1201st meeting - Notes:

Individual measures: It is noted with concern that certain investigations do not appear to have been initiated, that others are still pending and that the majority of investigations terminated without action. It is therefore important, in order for the Committee to have a clear idea of the situation that the Ukrainian authorities provide precise information as to the reasons why certain investigations have not been carried out and why the majority ended without further action. The Ukrainian authorities are also invited to accelerate the investigations that are still pending.

General measures: In view of the scope and complexity of the general measures called for in this group of cases, it is proposed, for the current examination, to concentrate on the issues relating to fundamental safeguards enjoyed by persons deprived of their liberty against ill-treatment by law-enforcement officials.

The new CCP constitutes, indeed, a significant development in reinforcing the rights of a person deprived of liberty on the ground of a suspicion of having committed a criminal offence, to have access to a lawyer, to have access to a medical assistance and to effectively inform a next-of-kin or a person of choice about his/her detention.

In this respect, reference can be made to the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its visit to Ukraine in October 2013. It appears, in particular, from the detailed findings in this report that much remains to be done to ensure full and adequate implementation of the new legislation (i.e. the new CCP and the law on free legal aid which entered into force in June 2013). Despite the provisions of the new CCP, access to a lawyer was still often granted only after the initial questioning by operative officers when the protocol of detention was drawn up, or even later. In addition, it appears from this report that the new system of legal aid, which was welcomed by the CPT, requires a number of additional measures and efforts to be fully operational in practice. Moreover, different recommendations concern the issues of the right of a person deprived of his/her liberty to have access to a medical doctor, the right to inform a third person of choice about his/her detention and the issue of being notified of his/her rights from the very outset of his/her deprivation of liberty. It is interesting to note that official interlocutors indicated to the CPT that the practical implementation of the new CCP generated some confusion among staff of Internal Affairs, and that such confusion was reinforced by the limited period during which the staff could be offered training.

It would be useful if the Ukrainian authorities transmit to the Committee of Ministers an updated Action plan containing their evaluation of the concrete impact of the above-mentioned reforms. In view of this evaluation, as well as in the light of the CPT’s recommendations, this action plan should set out the additional measures that the authorities envisage taking (for instance, additional changes to the legal and/or regulatory framework; training activities for the police forces, investigative judges, public prosecutors and/or other professionals involved; and allocation of necessary funds) so that the new legislation is fully implemented in practice.

It would be desirable that such an action plan be submitted to the Committee by October 2014.

The Ukrainian authorities could also be encouraged to ensure that police forces be reminded at regular intervals, by all hierarchical levels, that ill-treatment of persons deprived of their liberty is not tolerated and that abuses will be severely punished.

Finally, it is proposed that the next examinations by the Committee concentrate on the issues related to effectiveness of investigations (including the statute of limitations), the setting-up of National Bureau of Investigations and effective remedies.

It would be useful that the Ukrainian authorities include in their above-mentioned action plan, requested by October 2014, concrete information on the measures taken and/or envisaged in these areas.

Decisions

The Deputies

1. concerning individual measures, noted with concern the information transmitted and invited the Ukrainian authorities to ensure the acceleration of the pending investigations and to provide, by the end of October 2014, further information on the reasons why certain other investigations have not been carried out and why the majority of investigation had been closed without further action;

2. concerning general measures, reiterated their satisfaction with the significant improvements brought about by the new Code of Criminal Procedure and the Law on Free Legal Aid as regards fundamental safeguards against ill-treatment of persons deprived of liberty, and invited the authorities to provide, by end of October 2014, an updated action plan containing their assessment of the practical impact of the reforms introduced and containing the additional measures that they envisage adopting in the light of this assessment and of the relevant recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT);

3. encouraged, in addition, the authorities to ensure that members of police forces are regularly reminded by their respective hierarchy, at all levels, that ill-treatment is not tolerated and that abuses will be severely punished;

4. decided to concentrate their next examination on the issues related to the effectiveness of investigations and on effective remedies, and invited the Ukrainian authorities to include in the above-mentioned updated action plan concrete information on the measures taken and/or envisaged in these respects.

UNITED KINGDOM

Application: 28883/95

Judgment final on 04/08/2001

McKERR GROUP

Enhanced procedure: Structural and/or complex problems

Reference texts:

Interim Resolutions

ResDH(2005)20 CM/ResDH(2007)73 CM/ResDH(2009)44

Most recent information document

CM/Inf/DH(2008)2rev + CM/Inf/DH(2014)16rev

Communications from the United Kingdom

Action plan (12/02/2014) DH-DD(2014)224, (14/10/2013) DH-DD(2013)1127

Action plan (McCaughey and Hemsworth) (15/04/2014) DH-DD(2014)505

Updated action plan (16/05/2014) DH-DD(2014)663

Most recent communication from the applicants’ representatives (concerning individual measures only)

DH-DD(2013)346 (concerning Jordan and McKerr dated 23/11/2012)

Most recent communications from NGOs (concerning both general and individual measures)

Committee on the Administration of Justice (12/05/2014) and response from the authorities DH-DD(2014)698

Pat Finucane Centre (12/05/2014) and response from the authorities DH-DD(2014)699

Committee on the Administration of Justice (11/09/2013) DH-DD(2013)1048 and response from the authorities (14/10/2013) DH-DD(2013)1127;

Committee on the Administration of Justice and response from the authorities (22/11/2012 and 11/12/2012)

DH-DD(2012)1173;

Committee on the Administration of Justice & the Pat Finucane Centre and response from the authorities (16/02/2012 and 29/02/2012) DH-DD(2012)289;

Relatives for Justice (07/02/2012) DH-DD(2012)244

Decision adopted at the 1086th meeting (June 2010, p. 312)

Case description: These cases concern investigations into the deaths of the applicants’ next-of-kin in Northern Ireland in the 1980s and 1990s either during security forces operations, or in circumstances giving rise to suspicion of collusion with those forces.

McKerr group: the European Court found various combinations of the following shortcomings in the subsequent investigation of deaths: lack of independence of investigating police officers; lack of public scrutiny and information to victims' families on reasons for decisions not to prosecute; defects in the police investigations; limitations on the role and scope of the inquest procedure; absence of legal aid for the representation of the victims’ families; and delays in inquest proceedings (procedural violations of Article 2). The McShane case also concerns a failure by the State to comply with its obligations under Article 34.

McCaughey and others and Hemsworth: the European Court found that there had been excessive delay in the inquest proceedings which had concluded in 2012 and 2011 respectively (procedural violation of Article 2). Under Article 46 of the Convention, the Court indicated that the United Kingdom authorities must take as a matter of priority, all necessary and appropriate measures to ensure, in similar cases concerning killings by the security forces in Northern Ireland where inquests are pending, that the procedural requirements of Article 2 are complied with expeditiously.

Status of execution: Individual measures: The individual measures take the form of either one or a combination of three types of investigations: inquests, Police Ombudsman reports and/or Historical Enquiries Team (“HET”) reports. Investigations in five cases in this group are still outstanding due to delays in the inquest procedure, and/or suspension of the work of the Police Ombudsman and HET (see general measures for details).

A summary status of execution is as follows:

McKerr: the inquest resumed in 2007 is still pending. The Police Ombudsman report, also awaited since 2007, has not been provided due to the Ombudsman’s decision to suspend work on particular investigations.

Jordan: the inquest which was pending for 17 years finally completed in 2012. However, following a judicial review, the verdict of the inquest was quashed in January 2014.

The parties have appealed that decision and the appeal has been listed for hearing in October 2014. A separate judgment relating to compensation for delay is pending.

Shanaghan: the Police Ombudsman’s report is expected in 2015. The HET investigation began in 2006 and a report was given to the family in 2010. However, this was subsequently withdrawn in 2013 due to inaccuracies. A new report is being prepared.

Kelly and others: The case has been referred to the Police Ombudsman who is now engaging with the families. However, the investigation is unlikely to commence until 2015/2016. The HET investigation began in 2006 and a report was given to the family in 2012. The family requested that this be withdrawn due to inaccuracies and a new investigative team was subsequently appointed. The HET review has now been suspended.

McCaughey and others: the inquest proceedings concluded in May 2012. Judicial review proceedings relating to the inquest were lodged in June 2012 and are currently pending before the Court of Appeal.

Hemsworth: the inquest proceedings completed in May 2011 with a verdict indicating, inter alia, that it was highly probable that one or more police officer was responsible for the injuries leading to the death of Mr Hemsworth. In January 2012, the coroner referred the case to the Director of Public Prosecutions for a decision on prosecution.

General measures: Many general measures were already adopted in the McKerr group of cases, and the Committee has closed its supervision of the majority of them. However, some questions remained open concerning the functioning of the Police Ombudsman. The investigations that remain outstanding in the context of the individual measures also raise questions about the functioning of by the Police Ombudsman, the HET and the inquest system, as do the two new judgments.

The authorities confirm that the Police Ombudsman is now functioning effectively, following an independent, domestic review which resulted in a suspension of its work from 2011-2013 due to questions over its independence. However, the Ombudsman cannot compel retired police personnel to give evidence and has recently decided that it does not have a mandate to investigate cases where a police investigation has already taken place. Consequently, it has suspended its work on such cases, including McKerr. The authorities indicate that legislative proposals concerning reform of the Ombudsman’s work, and including these two aspects, will be put before the Northern Ireland Assembly in Autumn 2014.

Following an independent, domestic review, the HET has suspended its work on “State involvement cases” due also to questions about, inter alia, independence. This suspension includes work on its investigations in Shanaghan and Kelly and others. The authorities indicate that the HET will recommence its work during 2014.

In respect of inquests, and in response to the new judgments Hemsworth and McCaughey, the authorities propose the following measures:

    - The adoption of a Legal Aid and Coroners Court Bill which will designate the Lord Chief Justice as President of the Coroners Court and introduce more effective judicial case management

    - The establishment of a specialist Legacy Inquest Unit

    - The establishment of a Cross Agency Working Group on Delay to, inter alia, improve disclosure processes and co-ordination between agencies

    - Increased resources for the Police Service of Northern Ireland’s Legacy Support Unit which manages the disclosure process to the coroners court and other institutions such as the Police Ombudsman

A wider reform of coronial law is also announced. However, no timetable or concrete steps are referred to in this respect.

In their action plans, the authorities acknowledge that the current arrangements for dealing with criminal justice aspects of the past are complex and costly and can fail to achieve satisfaction in individual cases and so damage the wider objective of societal healing. They refer to recent, all-party talks under the chairmanship of Dr Richard Haass which resulted in the Haass Proposals in December 2013. Those proposals include the establishment of a single Historical Investigations Unit (“HIU”), to take forward the work of the HET and the Police Ombudsman in conflict related cases.

It is proposed that the HIU have its own independent statutory powers of investigation, the ability to undertake Article 2 compliant investigations and a more coherent, victim-focused response to the past than the current arrangements. These proposals are currently under consideration by the Northern Ireland parties.

Latest information received from NGOs concerning these cases

A number of NGO submissions have been received on these cases since the Committee’s last examination, mainly criticising the capacity of the HET and the Office of the Police Ombudsman to carry out effective investigations and to structural problems in the Northern Ireland inquest proceedings; as well as the ongoing delays in the individual measures (see, in particular, DH-DD(2013)1048, DH-DD(2014)698 and DH-DD(2014)699).

Application

Case

Judgment of

Final on

43098/09

McCAUGHEY AND OTHERS

16/07/2013

16/10/2013

58559/09

COLLETTE AND MICHAEL HEMSWORTH

16/07/2013

16/10/2013

MCKERR GROUP

28883/95

MCKERR

04/05/2001

04/08/2001

37715/97

SHANAGHAN

04/05/2001

04/08/2001

24746/94

HUGH JORDAN

04/05/2001

04/08/2001

30054/96

KELLY AND OTHERS

04/05/2001

04/08/2001

43290/98

MCSHANE

28/05/2002

28/08/2002

29178/95

FINUCANE

01/07/2003

01/10/2003

1201st meeting – Notes

The Department for the Execution of Judgments has worked in close co-operation with the United Kingdom authorities on the recent action plans provided. On 17 April, senior officials from the Department of Justice (Northern Ireland) responsible for legacy cases visited Strasbourg for a meeting with representatives from the Department. The Department subsequently circulated a Memorandum CM/Inf/DH(2014)16 which presents a summary of the individual and general measures taken and an assessment of the outstanding issues upon which the Deputies may wish to debate.

Decisions

The Deputies

Individual measures

1. noted that the inquest proceedings in the case of Hemsworth have concluded, the Coroner has referred the case to the Director of Public Prosecutions for a decision on prosecution, that a decision on prosecution can be judicially reviewed, and considered that no other individual measures appear necessary in this case;

2. recalled, however, that the Committee has repeatedly urged the United Kingdom authorities to take all necessary measures with a view to bringing to an end, without further delay, the investigations in the cases of McKerr, Shanaghan, Jordan and Kelly and Others, expressed serious concern that these investigations, as well as the investigation in McCaughey, are still outstanding and strongly urged the authorities to ensure their conclusion as soon as possible;

General measures

3. noted with interest the Haass process, an all Northern Ireland Party Group to consider issues relating to the Past, and welcomed in particular the proposal to create a single, investigative mechanism (the Historical Investigations Unit); considered that the establishment of such a body would be a significant development with potential to bring meaningful and positive change to the investigation of legacy cases; and strongly encouraged the authorities to use all necessary means to pursue it;

4. noted the efforts being made in the meantime to improve the current system; underlined, in that regard, the importance of the independent domestic review and reform of the Police Ombudsman and the Historical Enquiries Team; and urged the authorities to ensure this work is completed as soon as possible so that these bodies can carry out their work as effectively as possible, including on the investigations pending for the individual applicants in these cases;

5. noted with interest the authorities’ commitment to reduce delay and the measures proposed to improve case management, legal expertise, management of disclosure, and efficiency of inquest proceedings; however, considered that further measures may be needed to address the causes of the excessive delay in inquest proceedings; noted in this respect the announced review of Northern Ireland coronial law; and invited the authorities to provide information on any timetable or concrete steps planned for that review;

6. decided to review the progress made in these cases at their DH meeting in September 2015, at the latest;

7. decided to declassify the Memorandum CM/Inf/DH(2014)16rev.

C. Classification of cases17

Item 1

Classification of new judgments which became final before 08 April 2014

Decisions

The Deputies

1. noted that the following judgments have become final before 08 April 2014, and decided to examine them under the standard procedure (list of cases);

2. decided to examine the following judgments under the enhanced procedure : (list of cases).

* * *

Item 2

Change of classification

(a) from standard to enhanced

See the Notes and draft decisions for the Dzwonkowski group against Poland.

(b) from enhanced to standard

See the Notes and draft decisions for the case of Al Husin against Bosnia and Herzegovina.

See the Notes and draft decisions for the M. group of cases against Germany.

See the Notes and draft decisions for the case of Kalucza against Hungary.

(c) Change of classification of certain cases as a result of re-grouping

Action

The Secretariat recalls that the following cases against Turkey have been classified individually either under enhanced or standard procedure. Having regard to the similarities of these cases and the relevant groups which have emerged, the Secretariat proposes to examine the following cases under the enhanced procedure (complex problems):

Decisions

Having regard to the similarities of these cases and the relevant groups which have emerged, the Deputies decided to examine the following cases under the enhanced procedure (complex problems):

Erdoğan and others group (Actions of security forces in particular during military operations and lack of effective investigation)

19807/92

ERDOĞAN AND OTHERS

25/04/2006

13/09/2006

40073/98

BILGIN IHSAN

27/07/2006

27/10/2006

44125/06

GÜLBAHAR ÖZER AND OTHERS

02/07/2013

02/10/2013

3598/03

MERYEM ÇELİK AND OTHERS

16/04/2013

16/07/2013

24589/04

BOZKIR AND OTHERS

26/02/2013

08/07/2013

24604/04

NİHAYET ARICI AND OTHERS

23/10/2012

23/01/2013

Kasa group (Death as a result of excessive use of force by security forces and lack of effective investigation)

45902/99

KASA

20/05/2008

20/08/2008

23038/07

ULUFER

05/06/2012

05/09/2012

16281/10

AYDAN

12/03/2013

12/06/2013

24827/05

KÜLAH AND KOYUNCU

23/04/2013

23/07/2013

34783/07

ABİK

16/07/2013

16/10/2013

15762/10

CADIROĞLU

03/09/2013

03/12/2013

Oyal group (Medical negligence and lack of effective investigation in this respect)

4864/05

OYAL

23/03/2010

23/06/2010

45721/09

SÜLEYMAN EGE

25/06/2013

04/11/2013

13423/09

MEHMET ŞENTÜRK AND BEKİR ŞENTÜRK

09/04/2013

09/07/2013

* * *

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

ARMENIA / ARMENIE

40094/05

VIRABYAN

02/10/2012

02/01/2013

DH-DD(2014)328

44068/07

POGHOSYAN

20/12/2011

20/03/2011

DH-DD(2014)326

24173/06

ASATRYAN

09/02/2010

09/05/2010

DH-DD(2014)326

12895/06

MURADKHANYAN

05/06/2012

05/09/2012

DH-DD(2014)326

33376/07

PIRUZYAN

26/06/2012

26/09/2012

DH-DD(2014)326

6729/07

MALKHASYAN

26/06/2012

26/09/2012

DH-DD(2014)326

22491/08

SEFILYAN

02/10/2012

02/01/2013

DH-DD(2014)326

AZERBAIJAN / AZERBAIDJAN

16133/08

INSANOV

14/03/2013

14/06/2013

DH-DD(2014)492

BELGIUM / BELGIQUE

4320/11

B.

10/07/2012

19/11/2012

DH-DD(2014)324

BULGARIA / BULGARIE

40908/05

FAZLIYSKI

16/04/2013

16/07/2013

DH-DD(2014)335

48609/06

NENCHEVA AND OTHERS

18/06/2013

18/09/2013

DH-DD(2014)504F

CROATIA / CROATIE

46185/08

KRUSKOVIC

21/06/2011

21/09/2011

DH-DD(2014)423

41108/10

BAJIĆ

13/11/2012

13/02/2013

DH-DD(2014)433

13904/07

KUDRA

18/12/2012

18/03/2013

DH-DD(2014)433

55164/08

A.

14/10/2010

14/01/2011

DH-DD(2014)434

29525/10

REMETIN

11/12/2012

11/03/2013

DH-DD(2014)432

52442/09

ĐURĐEVIĆ

19/07/2011

19/10/2011

DH-DD(2014)456

4429/09

ŠEBALJ

28/06/2011

28/09/2011

DH-DD(2014)454

41526/10

ĐORĐEVIĆ

24/07/2012

24/10/2012

DH-DD(2014)453

37956/11

A.K. AND L.

08/01/2013

08/04/2013

DH-DD(2014)452

36998/09

PERUŠKO

15/01/2013

15/04/2013

DH-DD(2014)451

20883/09

AJDARIC

13/12/2011

04/06/2012

DH-DD(2014)449

56185/07

MADER

21/06/2011

21/09/2011

DH-DD(2014)469

51198/08

ERKAPIĆ

25/04/2013

25/07/2013

DH-DD(2014)465

45190/07

JEANS

13/01/2011

 

DH-DD(2014)475

8855/08

BEČEHELI

02/05/2013

 

DH-DD(2014)475

36337/10

M.S.

25/04/2013

25/07/2013

DH-DD(2014)474

16212/08

SKENDZIC AND KRZNARIC

20/01/2011

20/04/2011

DH-DD(2014)589

20106/06

JULARIC

20/01/2011

20/04/2011

DH-DD(2014)589

FRANCE

19522/09

M.K.

18/04/2013

18/07/2013

DH-DD(2014)310

9152/09

I.M.

02/02/2012

02/05/2012

DH-DD(2014)309

IRELAND / IRLANDE

39474/98

D.G.

16/05/2002

16/08/2002

DH-DD(2014)625

ITALY / ITALIE

54270/10

COSTA AND PAVAN

28/08/2012

11/02/2013

DH-DD(2014)291

30765/08

DI SARNO AND OTHERS

10/01/2012

10/04/2012

DH-DD(2014)630

LITHUANIA / LITUANIE

34932/04

PAKSAS

06/01/2011

06/01/2011

DH-DD(2014)398

MALTA / MALTE

42931/10

CAMILLERI

22/01/2013

27/05/2013

DH-DD(2014)382

REPUBLIC OF MOLDOVA / REPUBLIQUE DE MOLDOVA

17008/07

EDUARD POPA

12/02/2013

12/05/2013

DH-DD(2014)316

16761/09

G.B. AND R.B.

18/12/2012

18/03/2013

DH-DD(2014)447

53519/07

I.G.

15/05/2012

15/08/2012

DH-DD(2014)446

38623/05

PLOTNICOVA

15/05/2012

15/08/2012

DH-DD(2014)445

9106/06

GENDERDOC-M

12/06/2012

12/09/2012

DH-DD(2014)444

3564/11

EREMIA

28/05/2013

28/08/2013

DH-DD(2014)522

61382/09

B.

16/07/2013

16/10/2013

DH-DD(2014)522

74839/10

MUDRIC

16/07/2013

16/10/2013

DH-DD(2014)522

49868/08

BORDEIANU

11/01/2011

11/04/2011

DH-DD(2014)673

PORTUGAL

16153/09

ROLIM COMERCIAL, S.A.

16/04/2013

16/07/2013

DH-DD(2014)487

ROMANIA / ROUMANIE

17520/04

FLUERAŞ

09/04/2013

09/07/2013

DH-DD(2014)319

10890/04

HANU

04/06/2013

04/09/2013

DH-DD(2014)319

36605/04

MANOLACHI

05/03/2013

08/07/2013

DH-DD(2014)319

19946/04

POPA AND TĂNĂSESCU

10/04/2012

10/07/2012

DH-DD(2014)319

26082/05

GĂITĂNARU

26/06/2012

26/09/2012

DH-DD(2014)319

34116/04

STANCA

24/07/2012

24/10/2012

DH-DD(2014)319

37576/05

S.C. RAISA M. SHIPPING S.R.L

08/01/2013

08/07/2013

DH-DD(2014)548F

24999/04

IULIAN POPESCU

04/06/2013

04/09/2013

DH-DD(2014)547

8209/06

VERGU

11/01/2011

09/04/2013

20/06/2011

09/07/2013

DH-DD(2014)546

26246/05

IORGA AND OTHERS

25/01/2011

25/04/2011

DH-DD(2014)594

40238/02

BUCUR AND TOMA

08/01/2013

08/04/2013

DH-DD(2014)636

12036/05

SICĂ

09/07/2013

09/10/2013

DH-DD(2014)633

29752/05

BOBEŞ

09/07/2013

09/10/2013

DH-DD(2014)633

33882/05

ŞANDRU

15/10/2013

15/01/2014

DH-DD(2014)633

35842/05

VARARU

03/12/2013

03/03/2014

DH-DD(2014)633

RUSSIAN FEDERATION / FEDERATION DE RUSSIE

32501/11

SULEYMANOV

22/01/2013

27/05/2013

DH-DD(2014)599

36703/04

OLEYNIKOV

14/03/2013

09/09/2013

DH-DD(2014)657

SLOVAK REPUBLIC / REPUBLIQUE SLOVAQUE

58688/11

HARABIN

20/11/2012

20/02/2013

DH-DD(2014)380

SLOVENIA / SLOVENIE

40245/10

X.

28/06/2012

28/09/2012

DH-DD(2014)390

41293/05

K.

07/07/2011

07/10/2011

DH-DD(2014)411

3127/09

FLISAR

29/09/2011

29/12/2011

DH-DD(2014)406

SWEDEN / SUEDE

36124/06

OLSBY

21/06/2012

21/09/2012

DH-DD(2014)387

TURKEY / TURQUIE

6334/05

SÜZER AND EKSEN HOLDİNG A.Ş.

23/10/2012

09/04/2013

23/01/2013

Decision/Décision

DH-DD(2014)560

28110/08

ÖZMEN

04/12/2012

04/03/2013

DH-DD(2014)600

UNITED KINGDOM / ROYAUME-UNI

55721/07

AL-SKEINI AND OTHERS

07/07/2011

Grand Chamber/ Grande Chambre

DH-DD(2014)479

* * *

F. Adoption of final resolutions

Decision

The Deputies adopted the final resolutions CM/ResDH(2014)77 to 83 in respect of the judgments listed below:

[Draft] Resolution

Application No.

Case

Judgment or decision of

Final on

BULGARIA / BULGARIE

CM/ResDH(2014)77

66535/01

KROUSHEV

03/07/2008

03/10/2008

FRANCE

CM/ResDH(2014)78

3394/03

MEDVEDYEV AND OTHERS

29/03/2010

Grand Chamber

IRELAND / IRLANDE

CM/ResDH(2014)79

53743/09

MAGEE

20/11/2012

Decision

ITALY / ITALIE

CM/ResDH(2014)80

19675/06

VILLA

20/04/2010

04/10/2010

ROMANIA / ROUMANIE

CM/ResDH(2014)81

51930/09

ANTON

01/10/2013

Decision

56449/11

CORFARU

01/10/2013

Decision

24048/05

DRĂGHIA

01/10/2013

Decision

16955/05

GERHARDT-MĂNĂILĂ

01/10/2013

Decision

64319/11

GROSU

01/10/2013

Decision

27587/06

M.

01/10/2013

Decision

26808/07

OPREA

04/06/2013

Decision

SLOVAK REPUBLIC / REPUBLIQUE SLOVAQUE

CM/ResDH(2014)82

40685/08

HERSTEK

17/09/2013

Decision

12799/10

JENDRISKOVÁ

17/09/2013

Decision

12800/13

JUPITER SK s.r.o.

17/09/2013

Decision

916/09

VINCENT KAVALEC

17/09/2013

Decision

3397/09+

ROMAN KAVALEC AND TWO OTHER APPLICATIONS

17/09/2013

Decision

27424/09

MATULA

17/09/2013

Decision

22881/08

MUTŇANSKÝ

17/09/2013

Decision

80277/12

SARKOCY

17/09/2013

Decision

11937/09

ŠIŇÁK

17/09/2013

Decision

70336/10

ZADJOROVÁ

17/09/2013

Decision

TURKEY / TURQUIE

CM/ResDH(2014)83

73602/11

BAYDOĞAN

21/05/2013

73602/11

40679/10

BEKİ

25/06/2013

40679/10

26357/11

ÇAĞRI

07/05/2013

26357/11

42319/11

DEDEOĞLU

15/10/2013

42319/11

77724/11

KORKMAZ

15/10/2013

77724/11

69611/10

KURT AND OTHERS

07/05/2013

69611/10

44475/09

TAMAÇ

07/05/2013

44475/09

47946/11

Hüseyin YORGUN

28/05/2013

47946/11

* * *

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

Appendix 3 Cases already listed for detailed examination at future DH meetings by earlier decisions of the Committee

1 Case against the Republic of Moldova and the Russian Federation. The European Court found no violation in respect of the Republic of Moldova.

2 This application was lodged against Italy and Albania but the European Court found no violation in respect of Italy.

3 In this context, it should be noted that on 8 April 2014, the European Court gave a judgment in 10 similar cases, the examination of which was not frozen awaiting the implementation of the Manushaqe Puto pilot judgment (Karagjozi and others). Without prejudice to possible developments in the future concerning the introduction of an effective, compensation mechanism, the Court “takes note of the Committee of Ministers’ decisions and interim resolution deploring the limited progress” made at the national level up until December 2013.

4 Changes to the law on electoral commissions have thus been adopted in 2008, 2010, 2012 and 2013.

5 See notably the indications in bold in “the Instruction on rules for submission and processing of complaints and appeals of election rights filed to the Central Election Commission and constituency election commissions” in the action plan DH-DD(2014)277.

6 It should be recalled in this respect that a number of cases regarding the 2010 elections have been communicated by the Court to the government.

7 In the framework of the M.S.S. group of cases, conditions of detention of asylum seekers and irregular migrants are jointly examined as they require identical execution measures (for the list of cases, see H/EXEC(2014)4, Appendix).

8 Housein, §§ 57-63.

9 See DH-DD(2012)1074, DH-DD(2013)718 and DH-DD(2013)1133

10 See DD-DH(2013)1284 p. 1

11 See DD-DH(2014)569

12 See DD-DH (2013)1284 for more explanation on statistics obtained in the previous years.

13 See the draft decision regarding the new judgments proposed for classification under the enhanced procedure (item 1.2).

14 See also the recent judgment in the case of Nizomkhon Dzhurayev v. Russian Federation (No. 31890/11), judgment of 03/10/2013, final on 21/01/2014.

15 Case against the Republic of Moldova and the Russian Federation. The European Court found no violation in respect of the Republic of Moldova.

16 In this respect, reference could be made to OSCE/ODIHR – Venice Commission Guidelines on Freedom of Peaceful Assembly, adopted by the Venice Commission at 83rd Plenary Session (Venice, 4 June 2010), which could be useful source of inspiration.

17 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.”
For each of the cases listed here, the relevant indicator, as set out in footnote above, is indicated.
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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