C Explanatory memorandum
by Mr Pierre-Yves Le Borgn’, rapporteur
1 Introduction
1.1 Procedure
1. The Parliamentary Assembly
has taken a keen interest in the issue of implementation of judgments
of the European Court of Human Rights (“the Court”) since 2000.
Note In its last resolution on the
topic –
Resolution 2075
(2015), it resolved to “remain seized of this matter and to
continue to give it priority”.
Note Consequently,
on 2 November 2015, the Committee on Legal Affairs and Human Rights
appointed me as the fourth successive rapporteur on this subject
after Messrs Erik Jurgens (Netherlands, SOC), Christos Pourgourides
(Cyprus, EPP/CD) and Klaas de Vries (Netherlands, SOC). My report
is the ninth one on the subject. At its meeting in Strasbourg on
23 June 2016, the committee held a hearing with the participation
of Mr Giorgio Malinverni, former judge of the Court and honorary
professor at the University of Geneva, Mr Guido Bellatti Ceccoli, Ambassador,
Permanent Representative of San Marino to the Council of Europe,
rapporteur of the Human rights rapporteur group of the Committee
of Ministers, and Ms Betsy Apple, Advocacy Director, Open Society Justice
Initiative, New York. In addition, at its meeting in Paris on 13
December 2016, the committee authorised me to carry out fact-finding
visits to Bosnia and Herzegovina, Hungary and Ukraine, and, at its
meeting in Strasbourg on 24 January 2017, it also authorised me
to visit Poland. Owing to time constraints, I was unfortunately
unable to carry out all these visits. I did however visit Warsaw
(Poland) on 20 and 21 March 2017 and Budapest (Hungary) on 22 and
23 March.
Note
1.2 Recent
work by the Parliamentary Assembly
2. In its
Resolution 2075 (2015), the Assembly expressed its concern over the considerable
number of non-implemented judgments pending before the Committee
of Ministers: nearly 11 000 cases at 31 December 2014, many of which
related to structural problems. It pointed out that between States
Parties to the European Convention on Human Rights (ETS No. 5, “the
Convention”) nine States had the highest number of non-implemented
judgments, including certain particularly important judgments awaiting
implementation for over five years – Bulgaria, Greece, Hungary,
Italy, Poland, Romania, the Russian Federation, Turkey and Ukraine. The
Assembly also noted that, in a number of other States (including
Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Georgia, Republic
of Moldova, Serbia and the United Kingdom), judgments revealing
structural and other complex problems had not been implemented since
the adoption of
Resolution
1787 (2011) in January 2011.
3. In
Resolution 2075
(2015), the Assembly made a number of recommendations to the
member States of the Council of Europe, and specifically to national
parliaments. Furthermore, in its
Recommendation 2079 (2015), it proposed a number of measures to be taken by the
Committee of Ministers to improve the effectiveness of the process
of supervision of implementation of the Court's judgments. In its
recent reply to
Recommendation
2079 (2015), the Committee of Ministers reiterated the importance
of full and prompt execution of Court judgments. In this connection,
it invited its Deputies to explore possibilities to further increase
the efficiency of the supervision process, including the Human Rights
(DH) meetings; this work would be based on the contributions of
the Steering Committee for Human Rights (CDDH). The Committee of Ministers
also decided to reinforce the resources of the Department for the
execution of judgments, as advocated in
Recommendation 2079 (2015). Unfortunately, no reply was forthcoming to the Assembly's proposals
regarding the application of paragraphs 3 to 5 of Article 46 of
the European Convention on Human Rights (and in particular the “infringement
proceedings”), greater transparency of the process of supervision
of implementation of the Court's judgments and greater involvement
of civil society in that process.
1.3 Pending
issues
4. The political context in which
we are considering the issue of implementation of the Court's judgments is
more complex than at the time of my predecessors and I have taken
this into account. Regarding the parameters of the previous reports,
my predecessors, Messrs Jurgens and Pourgourides, emphasised different
criteria such as “judgments (and decisions) raising important implementation
issues”, “judgments and decisions which have not been fully implemented
more than five years after their delivery” and/or “judgments concerning
violations of a particularly serious nature”.
Note My immediate predecessor, Mr Klaas
de Vries, focused on the nine States Parties to the Convention having
the most judgments pending before the Committee of Ministers. In
this report, I will take those criteria into consideration but I
would also like to highlight a few examples of judgments whose implementation
raises complex problems and is not moving forward for political reasons.
That said, I wish to underline that there is more good news than
bad news of States reluctant to fully and promptly execute judgments
of the European Court of Human Rights. As pointed out in the document entitled
“
Impact
of the European Convention on Human Rights in States Parties: selected
examples”, prepared by the Secretariat in 2015 at my request
(with the collaboration of the Human Rights Centre of the University of
Essex, United Kingdom) and published this year by Council of Europe
Publishing, a great many member States do implement the judgments
of the European Court of Human Rights fully and without major delays.
5. In this report, I would like to dwell more on the following
questions: What are the challenges currently facing the Committee
of Ministers and the States Parties in the process of implementing
the Court's judgments? What are the good and bad practices of States
in this sphere? What initiatives are under way within the Council of
Europe in this field? How can we strengthen the interaction between
the Court and the Committee of Ministers and the Council of Europe's
other organs/bodies as well as the role of civil society and national parliaments?
Obviously, I will be referring to the work carried out by my predecessor,
Mr Klaas de Vries, and in particular to the countries with the highest
number of judgments which have not been implemented for over five
years and raise major (structural) issues such as excessive length
of judicial proceedings, the unlawful nature and/or excessive length
of remand detention, non-enforcement of domestic judicial decisions,
deaths and ill-treatment caused by law-enforcement officials and
lack of effective investigation in this connection and poor conditions
of detention. I will begin by looking at the progress achieved in
this area but without going into all the details of the cases in
question, since the document produced by my predecessor (in particular Appendix 1
to his report) already contains exhaustive data on the subject.
I will then look more closely at a selection of cases where there
has been no progress in implementation, for political or other reasons.
I will go on to take stock of the reforms/measures adopted within
the Council of Europe and in some of its member States to speed
up and improve the process of supervision of the Court's judgments
since the adoption of Mr de Vries' report to the present day, after
which I will present my conclusions and proposals.
2 Member States having the most judgments
pending before the Committee of Ministers
6. Following the publication in
April 2017 of the (tenth)
2016
Report of the Committee of Ministers on supervision of the execution
of judgments and decisions of the European Court of Human Rights, (“2016 Annual Report”), I would like to update some
of the data contained in the report prepared by my predecessor Mr de
Vries. According to the former report, at 31 December 2016, 9 941
cases were pending before the Committee of Ministers, compared to
10 652 at 31 December 2015. The following 10 countries had the most cases
pending (in descending order): Italy (2 350), Russian Federation
(1 573), Turkey (1 430), Ukraine (1 147), Romania (588), Hungary
(440), Greece (311), Bulgaria (290), Republic of Moldova (286)
Note and
Poland (225); they were followed by Croatia (180), Serbia (162)
and Azerbaijan (168), while the number of cases concerning the other
Council of Europe member States did not exceed the 100 mark. In
2014, as emphasised by Mr de Vries, the following countries had
the most cases pending before the Committee of Ministers: Italy (2 622
cases), Turkey (1 500 cases), Russian Federation (1 474 cases),
Ukraine (1 009 cases), Romania (639 cases), Greece (558 cases),
Poland (503 cases), Hungary (331 cases), Bulgaria (325 cases) and
Slovenia (302 cases). So there have been a few variations in these
rankings: the number of cases against Italy, Turkey, Ukraine, Romania,
Greece and Bulgaria fell, while the number of cases against the
Russian Federation, Hungary and the Republic of Moldova increased.
In 2016, there were only 49 cases against Slovenia pending before
the Committee of Ministers, following the closure of 264 cases of
the
Lukenda group
, relating to the excessive length
of civil, criminal or administrative proceedings or the excessive
length of implementation, and the lack of an effective remedy in
that regard (violations of Articles 6.1 and 13 of the Convention).
Note It should also be noted
that those cases are at different stages of implementation but have
not been closed by a final resolution of the Committee of Ministers,
meaning that not all the implementation measures – individual and/or
general – have been adopted.
7. Like Mr de Vries, I would also like to refer to the number
of applications pending before the Court, for which the statistics
slightly differ in terms of proportion from those of the Committee
of Ministers. Of the 10 aforementioned States, seven also appear
in the Court's “top ten”: Ukraine, Turkey, Hungary, Russian Federation,
Romania, Italy and Poland. At 31 December 2016, of the 79 750 applications
pending before the Court, nearly half came from the following three
member States: Ukraine (22.8%), Turkey (15.8%) and Hungary (11.2%).
They were followed by the Russian Federation (9.8%), Romania (9.3%),
Italy (7.8%), Georgia (2.6%), Poland (2.3%), Azerbaijan (2.1%) and
Armenia (2.0%).
Note At the end
of 2014, this ranking looked slightly different (of 69 900 pending
applications): Ukraine (19.5%), Italy (14.4%), Russian Federation
(14.3%), Turkey (13.6%), Romania (4.9%), Serbia (3.6%), Georgia
(3.3%), Hungary (2.6%), Poland (2.6%) and Slovenia (2.4%).
Note This shows that since the
end of 2014 the percentage of pending applications against Hungary
has increased from 2.6% to 11.2% and that Serbia and Slovenia have
disappeared from this list, with Azerbaijan and Armenia now appearing
on it. While the number of applications pending before the Court
has increased by over 10 000, the percentage of applications against
Ukraine, the Russian Federation and Italy has fallen whereas that
of applications against Turkey and Romania has increased. The percentage
of applications against Poland remains more or less the same. Even
though these statistics represent a different “reality” than those
of the Committee of Ministers, they often illustrate the scale of
structural problems at domestic level, and therefore of problems
that should have been resolved within the framework of the process
of implementation of Court judgments.
8. The main judgments and problems concerning the 10 member States
mentioned above and having the highest number of judgments pending
before the Committee of Ministers are listed in Appendix 1 to the
present report. This appendix also takes account of the progress
made in the meantime, i.e. in the form of final resolutions of the
Committee of Ministers closing the examination of certain cases,
as well as new problems (already raised in my predecessor's report)
which the Committee of Ministers is currently examining. A brief analysis
of the main cases mentioned yields the following observations.
Note
9. In
Italy, there is
still a chronic problem of excessive length of judicial proceedings
(see the
Ceteroni, Leddone No. 1, Abenavoli and
Luordo groups) but significant progress
has been noted by the Committee of Ministers, which has allowed
for the closure of a certain number of cases involving this problem.
Note There have been real
steps forward with regard to the issue of overcrowding in prisons
and the lack of an effective remedy against poor conditions of detention
(
Torreggiani and others v. Italy),
enabling the Committee of Ministers to close this group of cases.
Note Furthermore,
the Committee of Ministers considered that Italy had taken all necessary
steps to execute the judgments concerning expulsions of foreigners
in violation of Article 3 of the Convention (see,
inter alia, Ben
Khemais v. Italy).Note While
no progress has been observed by the Committee of Ministers since
Mr de Vries' report in the cases of the
Belvedere
Alberghiera S.R.L. group concerning “indirect expropriations”
or the
Cirillo judgment concerning
the lack of appropriate medical care in prisons
, the Italian authorities are making
concrete efforts to implement the judgment in the case of
M.C. and others, concerning the
retrospective invalidation of an annual adjustment of an allowance
for families of victims of accidental contamination by viruses.
10. The
Russian Federation has
taken all the necessary steps to enable the Committee of Ministers
to close the group of cases concerning the non-enforcement of domestic
judicial decisions (
Timofeyev v. Russian Federation)Note as well as the cases concerning
the “supervisory review procedure” (
nadzor)
violating the principle of legal certainty (
Ryabykh
v. Russian Federation).Note Nevertheless, the other
problems remain unresolved and the Committee of Ministers still
awaits implementation measures in the cases concerning poor conditions
of remand detention, particularly in remand prisons (
Kalashnikov group of cases and the
pilot judgment in the case of
Ananyev
and others),Note excessive length of remand
detention and violations of Article 5 of the European Convention
on Human Rights (
Klyakhin group
of cases),
Note acts
of torture and ill-treatment during custody (
Mikheyev group
of cases)
Note and secret extraditions
to the former soviet republics of Central Asia (
Garabayev group of cases).
Note At the same time, there has been
insufficient progress in implementing the judgment in the
Alekseyev case regarding the banning
of parades by lesbian, gay, bisexual and transgender (LGBT) people
Note and in the group of cases concerning
various human rights violations resulting from the actions of security
forces in the North Caucasus (
Khashiyev
and Akayeva group of cases);
Note this latter problem was also raised
by the Assembly in its
Resolution
2157 (2017) and
Recommendation
2099 (2017) “Human rights in the North Caucasus: what follow-up
to
Resolution 1738 (2010)?”, adopted on 25 April 2017.
Note In that resolution, the Assembly
noted that the implementation of the 247 judgments in that group
of cases “remains highly unsatisfactory” and that “the situation
in the North Caucasus region with regard to safeguarding human rights
and upholding the rule of law still remains one of the most serious
in the entire geographical area covered by the Council of Europe”.
In its
Recommendation
2099 (2017), the Assembly urged the Committee of Ministers to “continue
paying the utmost attention to the development of the human rights
situation” in the region and, where the execution of the aforementioned
judgments was concerned, encouraged it to “continue insisting on individual
and general measures to end the climate of impunity, and in particular
to continue resisting the Russian authorities’ attempts to make
use of statutes of limitation and amnesty laws to cement the impunity
of the perpetrators of even the most egregious human rights violations”.
11. As for
Turkey, in November
2016, the Committee of Ministers decided to close the examination
of 196 cases concerning in particular the excessive duration of
remand detention (see
Halise Demirel group).
Note Since my predecessor's last report, in
the Committee of Ministers has not examined the
Hulki Güneş groups of cases (concerning
the unfairness of criminal law procedures and the impossibility
of reopening them) and the
Űlke case
(concerning repeated imprisonment of conscientious objectors). Despite
a degree of progress, the Committee of Ministers is still waiting
for additional information on the measures taken or envisaged in
the groups of cases concerning violations of freedom of expression
following criminal convictions (
Inçal group),
the ineffectiveness of investigations into the actions of security
forces in violation of Articles 2 and 3 of the European Convention
on Human Rights (
Bati group)
and the excessive use of force to disperse peaceful protests (
Oya Ataman group). In addition,
regarding the judgments relating to various human rights violations in
the northern part of Cyprus in the wake of Turkey's military intervention
in Cyprus in 1974, the Committee of Ministers took note in December
2016 of the progress made as regards investigations into the disappearance of
Greek Cypriots and members of their families.
Note Nevertheless, the Turkish authorities
continue to refuse to pay the just satisfaction awarded to the applicants
by the Court in
Varnava and others judgment
and the 33 cases in the
Xenides-Arestis group
, despite several calls by the Committee
of Ministers (see in particular Committee of Ministers Interim Resolution
CM/ResDH(2014)185, in which the Committee of Ministers stated that this
continuing refusal was “in flagrant conflict” with Turkey’s international
obligations). The situation is the same for the case of
Cyprus v. Turkey. At their meeting
from 7 to 10 March 2017, the Committee of Ministers “strongly reiterated
their repeated calls on Turkey to abide by its unconditional obligation
to pay the just satisfaction awarded by the European Court in these
cases without further delay”.
Note Besides
this, there are two other structural and/or complex problems, already
mentioned in my predecessor's report, which are under examination
by the Committee of Ministers (
Söyler and
Opuz judgments).
12. In the case of
Ukraine,
the problem of the failure to execute domestic judicial decisions
or delaying their execution (
Zhovner group)
has persisted for over ten years and, according to the Committee
of Ministers, “no tangible progress has been achieved so far”,
Note despite
the readiness of the Ukrainian authorities to co-operate with the
Council of Europe. The Committee of Ministers is concerned that,
notwithstanding its previous decisions, the Ukrainian authorities
have neither started to implement the “three-step strategy” (already approved
by the authorities) nor formulated a global approach or strategy
for the settlement of cases pending before the Court (the number
of which is constantly growing). According to an expert report,
in order to implement the “three-step strategy”, the authorities
should focus on the following questions: methods of calculating
the total amount of the existing debt; removal of the legal and
institutional obstacles to the execution of domestic judicial decisions,
options for settling the debts arising from those decisions, legislative
measures for resolving the existing problem and the question of
how the amendments recently made to the Constitution regarding courts'
powers of supervision of the executions process could help to resolve
the problem. As for the other judgments of the Court, the Committee
of Ministers noted some progress made in implementing judgments
concerning ill-treatment inflicted by police officials (
Afanasiyev and
Kaverzin groups), the regulations
governing the use of detention on remand (
Kharchenko judgment),
the lack of impartiality and independence of judges (
Salov group of cases and
Volkov judgment) as well as violations
of freedom of assembly
(Vyerentsov group
of cases
).Note Since Mr de Vries' report, cases
concerning excessive length of judicial proceedings (
Svetlana Naumenko and
Merit groups of cases), poor detention
conditions (
Nevmerzhitsky and
Kuznetsov groups of cases) and the
internal investigation in the
Gongadze case (examined
by the Assembly in 2009) have not been examined by the Committee
of Ministers.
Note
13. As regards
Romania,
progress has been observed regarding problems of excessive length
of proceedings and the lack of an effective remedy in that regard
(which has allowed the closure of a certain number of cases concerning
this problem, in particular
Nicolau and
Stoianova and Nedelcu groups of
cases
)Note as well as ill-treatment
inflicted by police officials (
Barbu
Anghelescu group, which has also been closed by the Committee
of Ministers).
Note Nevertheless, there has
been very little progress in the other groups of cases mentioned
in Mr de Vries' report (concerning the overcrowding and poor detention
conditions
Note or
non-implementation of domestic court decisions). Other structural
and/or complex problems already mentioned in my predecessor's report
which are currently being examined by the Committee of Ministers
(
Strain and Maria Atanasiu, Association
‘21 December 1989’ and
Ţicu groups
and
Centre for Legal Resources on behalf
of Valentin Câmpeanu, Bucur and Toma judgments
).
14. The number of cases against
Hungary pending
before the Committee of Ministers has increased since my predecessor's
report. The main judgments against this country relate to excessive
length of judicial proceedings – civil and criminal – (
Timár group of cases) and poor conditions
in prison establishments, in particular caused by overcrowding (
Istvan Gabor Kovacs group of cases
and
Varga and Others pilot
judgment). I discussed these issues at length with the Hungarian
authorities when visiting Budapest. Concerning the first problem,
the Court handed down a pilot judgment in the case of
Gazsó on 16 July 2015,
Note concluding that this was
a structural problem and asking the authorities to introduce an
effective domestic remedy without delay and by 16 October 2016 at
the latest or a combination of such remedies making it possible
to adequately resolve the question of excessive length of judicial
proceedings. In December 2016, the Committee of Ministers noted
with regret that this deadline had not been met and asked the authorities
to provide information, by 1 February 2017, on the content of the
draft legislation introducing a remedy for claiming compensation
for excessively lengthy proceedings before civil, criminal and administrative
courts. The Hungarian authorities submitted an action plan to the
Committee of Ministers on 1 February 2017.
Note During my visit to Budapest, the authorities
confirmed that the government was reflecting on improvements to
remedies against excessively lengthy proceedings. With regard to
poor detention conditions, the authorities confirmed that a new
remedy intended to compensate prisoners for violations of their
rights had been introduced on 1 January 2017 and specified that
they had drawn up an action plan for building new prisons as well
as, in parallel, a system of non-custodial measures. I also raised
the question of the implementation of the
Horváth
and Kiss judgment concerning the discriminatory placement
of children of Roma origin in schools for mentally disabled children during
their primary school education, and the authorities told me that
they were actively working on the issue of integration of these
children into Hungarian society on the basis of a long-term strategy
and had sufficient resources to that end.
15. Having had a problem of excessive length of proceedings for
at least a decade,
Greece has
achieved some progress since Mr de Vries' report, making it possible
to close 206 cases relating to the length of proceedings before
administrative courts,
Note over
80 cases relating to criminal proceedings and over 50 cases relating
to civil proceedings.
Note With regard to cases concerning the use
of lethal force and ill-treatment by members of law-enforcement
agencies (
Makaratzis group
of cases), an action report is being examined by the Committee of
Ministers.
Note However, progress is still awaited
in the groups of cases concerning conditions of retention of foreigners
and asylum procedures (
M.S.S. v. Belgium
and Greece group)
Note as well as violations of the right
to freedom of association resulting from the Greek authorities'
refusal to register associations promoting the idea of the existence
of an ethnic minority as distinct from the religious minorities
recognised by the 1923 Treaty of Lausanne (
Bekir-Ousta group);
in respect of the latter group of judgments dating from 2008, the
Committee of Ministers envisages adopting an interim resolution
at its 1294th meeting in September 2017 if no tangible results are
achieved in the meantime. The Committee of Ministers is also examining
two other groups of cases mentioned in my predecessor's report –
Nisiotis (concerning the poor conditions
in prisons) and
Beka-Koulocheri (concerning
the failure to execute domestic judicial decisions).
16. For
Bulgaria, progress
has been observed in connection with the problem of excessive length
of judicial proceedings and the lack of an effective remedy in that
regard and, in September 2015 and in February 2017, the Committee
of Ministers closed respectively 56 and 34 cases relating to this
problem, following the introduction of effective compensatory remedies
and steps taken to speed up procedures, and in particular to eliminate
the main causes of certain types of delay.
Note The
questions yet to be resolved – namely the excessive length of proceedings
before overburdened courts and the lack of an effective acceleratory
remedy in criminal proceedings – are still under examination by
the Committee of Ministers in the framework of the
Kitov and
Djangozov group
of cases. Regarding the other problems raised in Mr de Vries' report,
some progress has been made in implementing the groups of cases
relating to poor conditions of detention (
Kehayov group
of cases and
Neshkov and others pilot
judgment) and ill-treatment by law-enforcement officials (
Velikova group)
Note but
more general measures are still awaited in these cases as well as
in the cases relating to expulsions of foreigners in violation of
their rights to respect for family life (
C.G.
and others group). Moreover, the Committee of Ministers
is examining execution in other complex problem areas – in the
Stanev, UMO Illinden and others and
Yordanova and others cases – raised
by my predecessor. Finally, the Committee of Ministers is examining the
measures taken to remedy the existence of a systemic problem of
ineffectiveness of criminal investigations in the context of the
S.Z. group.
17. The
Republic of Moldova was
not one of the nine countries analysed in Mr de Vries' report. Nevertheless,
Mr Pourgourides' previous report already detailed the issues faced
by that State in implementing judgments: non-enforcement of domestic
judicial decisions (
Luntre group),
unlawful remand detention (
Sarban group)
as well as ill-treatment inflicted by the police (
Corsacov group) and poor conditions
of detention in remand facilities and prisons (
Sarban group).
Note According to the last annual report
of the Committee of Ministers (2016), these problems are still topical
Note despite
some progress. That annual report also mentions other complex problems
linked to the execution of certain other judgments (see Appendix
1).
18. In cases involving
Poland, progress
has been made in several areas since my predecessor's report and there
are considerably fewer cases pending before the Committee of Ministers,
which has closed its supervision of cases concerning poor conditions
of detention,
Note lack of appropriate
medical care in detention centres,
Note the dangerous prisoner
regime
Note and ill-treatment by law-enforcement
officials,
Note the
Bączkowski case
concerning discriminatory refusal to grant permission for a protest
march
Note as
well as a number of old cases concerning length of judicial proceedings
(criminal and civil)
Note and
administrative proceedings.
Note The problem raised in these
old cases remains a major issue; the Committee of Ministers is still
examining cases of this type (within the framework of the
Majewski, Bąk and
Beller groups
) as
well as the implementation of the pilot judgment in the case of
Rutkowski and others (of 7 July
2015)
, in which the Court
stressed that it was a structural problem and that the domestic
remedy introduced in 2004 was not effective. During my visit to Warsaw,
the authorities informed me that a new law had been passed on 30
November 2016 with a view to bringing the existing remedy into line
with the requirements stemming from the Court's case law. A number
of my talking partners, including at the Supreme Court and the Ministry
of Justice, confirmed that the excessive length of judicial proceedings
(particularly in civil and criminal cases) remained a structural
problem; with some 15 million new cases lodged each year, Poland's
courts struggle to eliminate the backlog and, every year since 2013,
the number of new cases has constantly exceeded the number of cases
completed in the year. The judges of the Supreme Court believe that
certain judicial procedures should be simplified.
3 General
data on the implementation of the Court's judgments between 2015
and 2017
19. Generally speaking, the Committee
of Ministers’ report is optimistic about the implementation of judgments
of the Court and welcomes certain progress made in this area. The
first of these relates to the “record” number of cases closed in
2016 – totalling 2 066 (including 282 leading cases) compared to
1 537 (including 153 leading cases) in 2015 and 1 502 in 2014 (including
208 leading cases); several of these closed cases relate to structural
problems and were pending before the Committee of Ministers for
more than five years (including 30 leading cases under “enhanced
supervision”). The second area of progress is linked to a fresh
reduction in the number of pending cases: 9 944 compared to 10 652
at the end of 2015 and 10 904 at the end of 2014; this figure remains
below the 2011 level of 10 689 and that of the years 2012-2013 when
the workload of the Committee of Ministers peaked above 11 000 cases.
Also noteworthy is a reduction in leading cases: 1 493 at the end
of 2016 compared to 1 555 at the end of 2015 and, in cases under
“enhanced supervision”: down to 5 950 at the end of 2016 from 6 390
at the end of 2015 and 6 718 at the end of 2014; this figure also
remains below those of the years 2011-2013. As noted in the
2015
annual report of the Committee of Ministers, these promising trends may be due to more efficient
domestic execution processes and better management of new cases
within the Committee of Ministers thanks to new working methods.
Note The 2016
report welcomes the reality of the political commitment to the Convention
and respect for the judgments of the Court, confirmed by the
Brussels
Declaration adopted at the high-level conference on 26 and 27 March 2015
on the “Implementation of the European Convention on Human Rights,
our shared responsibility”.
20. It should be noted that the number of new cases in 2016 stood
at 1 352 (compared to 1 285 in 2015), which means that it has been
substantially overtaken by the number of cases closed that year
(2 066) and confirms recent positive trends (since 2012). In 2016,
the number of new leading cases was 206 (compared to 186 in 2015).
21. Nevertheless, the 2016 annual report of the Committee of Ministers
highlights a number of problems. Firstly, there was continued growth
in leading cases pending for more than five years: 549 at the end
of 2016 compared to 514 at the end of 2015. This trend relates above
all to cases under “standard supervision” (237 at the end of 2016
compared to 135 at the end of 2015), but the number of leading cases
under “enhanced supervision” (therefore the most complex and politically
“sensitive”) for more than five years has also increased in recent
years: from 128 in 2013, to 158 in 2014 and to 171 in 2015 and 2016.
The same applies for all leading cases (under “standard” or “enhanced”
supervision): 453 in 2013, 593 in 2014, 685 in 2015 and 720 in 2016.
Note Secondly,
the report also notes a number of problems in the payment of just
satisfaction to applicants, with a rise in payments outside deadline
in 2016 and payments awaiting confirmation for more than six months
(after the payment deadline).
Note Furthermore, the Court's increased use
of the procedure before committees of three judges for repetitive
cases covered by well-established case law (WECL) is proving problematic
for the Committee of Ministers, as the very limited description
of the facts in some cases may make it difficult to identify individual
and general measures.
22. With regard to the main themes under “enhanced supervision”
by the Committee of Ministers (on the basis of the number of leading
cases), at the end of 2016, over half the cases related to five
major problems: actions of security forces (16%), poor conditions
of detention and lack of medical care in penitentiary establishments
(11%), the lawfulness of detention on remand and related issues
(10%), specific situations linked to violations of the right to
life and ill-treatment (9%) and excessive lengths of judicial proceedings
(9%). These are followed by the non-execution of domestic judicial
decisions (6%), other interferences with property rights (5%), violations
of the right to respect for home/private and family life (5%), lawfulness
of expulsion or extradition (4%) and violations of freedom of assembly
and association (3%). Together, these themes cover 78% of the cases
pending before the Committee of Ministers. For 80% of the cases
under “enhanced supervision”, the breakdown by country is as follows:
Russian Federation (17%), Ukraine (16%), Turkey (11%), Bulgaria
(7%), Republic of Moldova (7%), Italy (6%), Romania (5%), Azerbaijan
(4%), Greece (4%) and Hungary (3%).
Note
23. As for the statistics on the average length of execution of
leading cases closed, there has been no improvement. In 2014, the
overall average was 4.1 years (4.1 years for cases under standard
supervision and 4.8 years for cases under enhanced supervision),
compared to 4.5 years in 2015 (4.1 years for cases under standard
supervision and 7.2 years for cases under enhanced supervision)
and in 2016 it was 4.7 (4.2 years for cases under standard supervision
and 7.2 years for cases under enhanced supervision).
Note
4 Specific
challenges for the execution of Court judgments: selected examples
4.1 General
comments
24. Recent Committee of Ministers
statistics show that, despite some progress, there are still problems
in securing the full and rapid implementation of certain judgments
of the European Court of Human Rights. According to its 2015 annual
report, the Committee of Ministers is increasingly confronted with
difficulties related to “pockets of resistance” linked to deeply-rooted
problems of a social nature (for example toward Roma or certain
minorities) or related to political or national security considerations
or to the situation in areas/regions of “frozen conflict”.
Note The
2016 report refers explicitly to four major types of difficulty
facing the execution of Court judgments:
Note 1)
important and complex structural problems; 2) the absence of a common
understanding of the scope of the execution measures required following
developments of the Court’s case law (in particular concerning interpretation
of the concept of “jurisdiction”); 3) slow or blocked execution
as a result of disagreement between national institutions, or amongst
political parties, as regards the substance of the reforms required
and/or the procedure to be followed; 4) refusal either to adopt,
notwithstanding strong insistence from the Committee of Ministers,
the individual measures required or to pay just satisfaction. Concerning
the first type, several structural problems have been discussed
above and appear in Appendix 1, but a good example of the problems
involved, particularly with regard to financial resources, in the
execution of such judgments is provided by the lack of progress
in the execution of the
Zhovner v.Ukraine group.
The
Catan and Others v. Russian Federation judgment
offers a very good illustration of the second type of problem. The
Sejdić and Finci v. Bosnia and Herzegovina and
Paksas v. Lithuania judgments (and
to a certain extent those of the
Hirst
v. United Kingdom No. 2 group
) are
representative of the third group of problems, while the
Ilgar Mammadov v. Azerbaijan and
OAO Neftyanaya Kompaniya YUKOS v. Russian
Federation judgments, as well as those against Turkey
concerning the northern part of Cyprus (see above), are examples
of the fourth group, that of outright refusal to execute. The
Al Nashiri and
Husayn
v. Poland judgments are quite distinct from these four
groups and also merit close attention.
25. Aside from that, I wish to draw attention to another important
issue, namely certain member States’ reluctance to accept the European
Court of Human Rights jurisdiction. Good examples of this problem
are supplied by the failure to execute some of the judgments considered
below. However, the criticisms levelled by certain political leaders
are also worthy of note. Particular examples are provided by Hungary,
in connection with the recent
Ilias and
Ahmed v. Hungary judgment,
Note concerning the
illegal detention of asylum seekers;
Note the United Kingdom, where the Prime Minister,
Theresa May, has made several statements about certain Court judgments,
in particular in the case of
Othman (Abu
Qatada)Note concerning
the deportation of a Jordanian imam suspected of terrorist acts,
or threatening to withdraw from the Convention; and Switzerland
where the UDC (the Swiss People's Party or Democratic Union of the
Centre) has launched a popular initiative entitled “Swiss law instead
of foreign judges”,
Note following the
Tarakhel v. Switzerland judgment
concerning the expulsion of an immigrant family.
Note I am particularly
saddened by the fact that such attacks on the Court’s authority
often take place in my country, France, as was recently the case
during the election campaign. It was the subject of a brainstorming
session that I organised in the French National Assembly on 23 May
2016. French politicians regularly accuse the Court of impeding
effective counter-terrorism measures by preventing the expulsion
of persons suspected of terrorist acts. Another target of attacks
has been the
Mennesson and
Labassé judgments
Note concerning
gestational surrogacy
, for
whose execution France has still not introduced the required general
measures. The criticisms levelled by politicians often confuse the
European Court of Human Rights with the Court of Justice of the
European Union, a confusion that is not always fortuitous and forms
an integral part of the anti-European rhetoric. Those concerned
are deceiving the public and draw the media, which should be informing
the public about the European Court of Human Rights judgments, into
this misleading process.
4.2 Judgments whose execution raises complex
political issues
4.2.1 Ilgar Mammadov v. Azerbaijan
26. The Committee of Ministers
is very concerned about Azerbaijan’s persistent refusal to take
the individual measures it has required in the
Ilgar Mammadov v. Azerbaijan case.
Note In
its judgment, the Court concluded that the detention of the applicant,
a member of the political opposition, had been politically motivated
and was incompatible with Articles 5.1.
c and
18 of the Convention. The applicant had been arrested and remanded
in custody on 4 February 2013 and sentenced to seven years’ imprisonment
by the court of first instance on 17 March 2014. When the Court’s
judgment became final his criminal conviction was not yet final. Mr Mammadov
lodged various appeals as a result of which the case was re-examined
by the Azerbaijani courts. On 18 November 2016, the Supreme Court,
acting as final court of appeal, confirmed his conviction.
27. Since its first examination of the case in December 2014,
the Committee of Ministers has consistently maintained that the
violations found by the Court cast doubts on the well-foundedness
of the criminal proceedings against the applicant and that the authorities
should order his immediate release. Nevertheless, despite three
interim resolutions and several decisions of the Committee of Ministers
calling for Mr Mammadov’s immediate release, the latter, whom Amnesty
International deems to be a “prisoner of conscience”, is still detained
and has served more than four years of his sentence, two and a half
of them after the Court’s final judgment. Since June 2016, the case
has been considered at each ordinary and DH meeting of the Committee
of Ministers. At their 1273rd meeting (DH) in December 2016, the
Committee of Ministers deeply deplored the fact that the Azerbaijani
Supreme Court had not drawn the consequences of the violations found
by the Court and affirmed their determination to ensure the implementation
of the judgment by actively considering using all the means at the
disposal of the Organisation, including under Article 46.4 of the Convention.
Note In January 2017, a
representative of the Council of Europe’s Secretary General visited
Baku as part of an inquiry into human rights compliance in Azerbaijan
initiated by the Secretary General in December 2015, based on Article
52 of the Convention. Following this visit, the Azerbaijani authorities
submitted a new action plan in February 2017,
Note which states that on 10 February
2017 the President of Azerbaijan signed an executive order on the
liberalisation of penal policy. At their 1280th meeting (DH) in
March 2017, the Committee of Ministers “took note with interest
of the Azerbaijani authorities’ commitment to examine all avenues discussed
during the mission of the representative of the Secretary General
to execute the Ilgar Mammadov judgment, as well as of the recent
Presidential Executive Order which foresees promising measures for
the execution of this judgment”, and invited the Azerbaijani authorities
to inform the Committee of Ministers “of the concrete measures adopted
on the basis of this Executive Order and in particular of those
enabling the release of Ilgar Mammadov without further delay”.
Note
28. It should also be noted that the implementation of this judgment
was also considered recently by our Committee at its meeting of
7 March 2017. The context was a discussion on the report of the
committee’s chair and rapporteur, Mr Alain Destexhe (Belgium, ALDE),
on “Azerbaijan’s Chairmanship of the Council of Europe: What follow-up
on respect for human rights?”.
Note Mr Destexhe
had undertaken a fact-finding visit to Baku on 9 and 10 February
2017. Moreover, in its
Resolution
2062 (2015) on the functioning of democratic institutions in Azerbaijan,
in which it referred specifically to this judgment, the Assembly
expressed concern “about the use of pretrial detention as a means
of punishing individuals for criticising the government” and called
on the Azerbaijani authorities to fully implement the judgments
of the European Court of Human Rights, in conformity with the resolutions
of the Committee of Ministers.
4.2.2 The Sejdić and Finci v. Bosnia and
Herzegovina group of cases
29. In
Sejdić
and Finci v. Bosnia and Herzegovina,Note the
Court ruled, amongst others, that the country’s presidential election
procedure was discriminatory, since it prevented the applicants
from standing in these elections due to their refusal to declare
affiliation with a “constituent people” (namely the Bosniaks, Croats
or Serbs) or due to their failure to satisfy a combination of requirements
relating to ethnic origin and place of residence (violations of
Article 1 of Protocol No.12). The Constitution of Bosnia and Herzegovina
made such a declaration of affiliation a condition of eligibility
to stand for election. In 2014 and 2016, the Court found similar violations
in three other cases.
Note In the
Zornić and Šlaku judgments
, it stated, with reference to Article
46 of the Convention, that the violations were the direct result
of failure to introduce measures to ensure compliance with the judgment
in
Sejdić and Finci. The Court
also noted in the
Zornić judgment
that the time had come for every citizen to be entitled to stand
for election to the presidency without discrimination. The special
provisions on the “constituent peoples” had been necessary to maintain
the peace when the constitutional provisions were put in place,
namely at the time of the 1995 Dayton peace agreement, but were
now no longer justified.
Note
30. The Committee of Ministers has been monitoring the case closely
since the Court’s judgment became final, in December 2009, and has
adopted three interim resolutions calling on the country’s authorities
and political leaders to ensure that the Constitution and legislation
meet the requirements of the Convention. Despite the elections of
2010 and 2014, the legislation remains unaltered. The Committee
of Ministers has stated on a number of occasions that implementation
of the judgment is a legal obligation for Bosnia and Herzegovina.
In 2015, the authorities informed the Committee of Ministers of
a written undertaking to devote particular attention to execution
of this group of cases, which had been adopted by the State presidency,
signed by the main political parties and endorsed by parliament,
and which was welcomed by the Committee of Ministers at its 1230th
meeting (DH) in June 2015. In October 2016, the authorities told
the Committee of Ministers that the country’s Council of Ministers
had approved an action plan for the execution of these judgments,
prepared by the Minister of Justice, and that a high-level working
group would be established.
Note However,
no such group has been formed, because the two remaining caucuses
of the House of Peoples have not yet appointed their representatives.
At its 1273rd meeting (DH) in December 2016, the Committee of Ministers
noted with deep concern that no tangible progress had been made
in this case since June 2015, that the Court continued to deliver
judgments finding similar violations and that the constitutional
amendment process had been blocked as a consequence of the lack
of consensus between the leaders of the political parties. Since
the problem of failure to implement judgments was also being taken
into account in the negotiations on Bosnia and Herzegovina’s accession
to the European Union,
Note the Committee
of Ministers invited the member States and the European Union to
raise the issue of the execution of judgments in their contacts
with Bosnia and Herzegovina. It decided to resume consideration
of the matter in June 2017.
31. The subject is also being considered by the Assembly, particularly
under the monitoring procedure. The Assembly has stated on a number
of occasions that implementation of the
Sejdić
and Finci judgment is a legal obligation and has urged
Bosnia and Herzegovina to amend its Constitution (see, in particular,
its R
esolutions 1701
(2010),
1725 (2010) and
1855
(2012) and
Recommendation
2025 (2013)).
4.2.3 Paksas v. Lithuania
32. In the
Paksas
v. Lithuania case
, the
Court found that there had been a violation of the applicant’s right to
free elections due to the permanent and irreversible nature of his
disqualification from standing for election to Parliament as a result
of his removal from presidential office; the applicant’s removal
followed impeachment proceedings against him in accordance with
the Constitutional Court's ruling of 25 May 2004 and the Law on Elections
to the Seimas of 15 July 2004 (violation of Article 3 of Protocol
No. 1). In this judgment, the Court urged the authorities to take
steps to put an end to the violation and make all feasible reparation
for its consequences, in such a way as to restore as far as possible
the situation existing before the breach.
Note The applicant,
who is currently a member of the European Parliament, has been unable
to stand in the Seimas elections since 2004, including those of
October 2012 and October 2016. Despite two attempts to revise the Constitution,
to bring the legal situation into line with the requirements of
Article 3 of Protocol No. 1, the judgment has still not been executed.
In September 2013, a first draft law was laid before parliament,
but the latter did not act on it, on account of a judgment of the
Constitutional Court. A second draft law was presented to the Seimas
in March 2015; it was scheduled for approval in June 2015 but the
vote was postponed at the request of members of the applicant’s
party. In December 2015, the Seimas rejected it on its second reading. At
their 1273rd meeting (DH) in December 2016, the Committee of Ministers
expressed its deep concern over this turn of events, emphasised
that the authorities were under an unconditional obligation to take
steps to comply with the judgment, took note of the authorities’
continuing commitment to undertake all further efforts to ensure
execution and decided to resume consideration of the matter in June
2017.
4.2.4 Al Nashiri and Husayn v. Poland
33. When I visited Warsaw, I raised
the issue of the execution of the
Al
Nashiri and Husayn (Abu Zubaydah) judgments
Note concerning
the CIA’s secret rendition and detention in Poland of the applicants,
who were suspected of terrorist acts (multiple violations of the
Convention, in particular Article 3, from both the procedural and
substantive standpoints, Article 6.1 and, in the case of Mr Al Nashiri,
Article 1 of Protocol No. 6). The Court found that the applicants’
transfer from Poland had exposed them to a real risk of a flagrant
denial of justice due to the possibility they would face trials
before United States military commissions using evidence obtained under
torture. It also found that Mr Al Nashiri, who had been charged
with capital offences before the military commissions, faced a real
risk of being subjected to the death penalty. The applicants are
currently detained in the internment facility at the United States
Guantánamo Bay Naval Base in Cuba. The Committee of Ministers has
examined the issue of urgent individual measures at each of its
human rights meetings since March 2015 and expressed its deep concern
about the applicants’ situation. The Committee of Ministers has called
on the Polish authorities to seek, as a matter of urgency, assurances
from the United States authorities that Mr Al Nashiri will not be
subjected to the death penalty and that the applicants will not
be exposed to flagrant denials of justice. In February 2016, the
Polish authorities indicated that the United States authorities had
informed them that their request for diplomatic assurances could
not be supported, since the Court’s decisions did not reflect the
obligations of the United States under international law. Despite
repeated requests from the Polish authorities, and repeated calls
from the Committee of Ministers and Secretary General of the Council
of Europe to the United States (which has observer status with the
Council of Europe), the position of the American authorities remains
unaltered. At their 1280th meeting (DH) in March 2017, the Committee
of Ministers again expressed its concern about these refusals and
stressed “the urgency for the Polish authorities to continue actively
to use all possible means at the highest levels to seek to remove
the risks faced by the applicants”. They instructed the Secretariat
to prepare a draft interim resolution, in the event of the Polish authorities
offering “no indication of measures taken by [them] at the highest
levels in addition to the letters sent to the United States’ authorities”.
Note In
the discussions I had with senior officials of the Ministry of Foreign
Affairs and of the President’s office (which, following the request
of the Minister of Foreign Affairs, also sent a letter to the United
States authorities, in July 2016), the officials concerned expressed
confusion as to how to secure execution of these judgments. They
maintain that this depends on the goodwill of the United States
authorities. The Polish authorities are unable to force them to
provide the diplomatic assurances required by the Committee of Ministers,
and the Council of Europe should give them more support in their
requests to the United States. Regarding the excessive length of
the investigation launched by the Cracow prosecutor’s office, the
Polish authorities state that the proceedings are still pending
and that a request for mutual judicial assistance has been rejected
by the United States authorities.
4.2.5 Hirst v. United Kingdom (No. 2) group
of cases
34. In the
Hirst
v. United Kingdom (No. 2) case
Note (final since 6 October
2005) and the
Greens and M.T. v. United
Kingdom pilot judgment,
Note the
Court found that the blanket ban on voting of imprisoned convicted offenders
was in violation of the Convention (violation of Article 3 of Protocol
No. 1). Between 2014 and 2016, following failure to implement the
two judgments, the Court handed down three similar judgments
Note and numerous
other applications concerning this problem are pending before it.
In the
Greens and M.T. case
, the Court concluded that the authorities
should introduce legislative proposals to amend the blanket ban
on prisoner voting (provided for by section 3 of the Representation
of the People Act 1983). On 22 November 2012, the United Kingdom
authorities laid before parliament a draft bill to amend the electoral
legislation setting out three options for consideration by a joint
committee of the two houses of parliament.
Note The
committee published its
report on 18 December 2013, and its conclusions were welcomed
by the Committee of Ministers at its 1193rd meeting (DH) in March
2014. However, despite the general election of May 2015 and the upcoming
2017 election there has been no progress on this matter.
35. At its 1243rd meeting (DH) in December 2015, the Committee
of Ministers adopted interim resolution
CM/ResDH(2015)251, expressed its profound concern that the blanket ban
on the right to vote of convicted prisoners in custody remained
in place, reaffirmed the United Kingdom authorities’ legal obligations
under Article 46 of the Convention and invited the Secretary General
to raise the issue of implementation of these judgments in his contacts
with the United Kingdom authorities and inviting the United Kingdom
authorities to continue high-level dialogue on this issue. In 2016,
the authorities provided the Committee of Ministers with updates
on this issue.
Note As part of this dialogue, on 21
April 2016, the United Kingdom Parliament’s Joint Committee on Human
Rights and the Justice Committee of the House of Commons held discussions
with key stakeholders of the Council of Europe, including our committee.
On 25 October 2016,
Note the United Kingdom authorities informed
the Committee of Ministers that the purpose of the dialogue was
to gather ideas and options on how to implement the relevant judgments
without amending section 3 of the Representation of the People Act
1983, and that parliament continued to oppose the passage of new
legislation. In light of the result of the referendum on Brexit
and the government’s work on its consequences, the United Kingdom
authorities were not yet in a position to fix a definitive timescale
for developing the options for implementing the judgments, which
required a further nine to twelve months. At its 1273rd meeting
(DH) in December 2016, the Committee of Ministers discussed the
subject with the Minister of State for Courts and Justice, noted
the information provided on the enhanced dialogue, reiterated the
authorities’ obligations under Article 46 of the Convention and
emphasised that they should submit concrete proposals to comply
with these judgments, together with an approximate timetable for
their implementation, by 1 September 2017 at the latest, before
the next examination of these judgments, which would be no later
than December 2017.
4.2.6 OAO Neftyanaya Kompaniya YUKOS v.
Russian Federation
36. Another, more worrying, example,
comes from Russia, whose authorities have shown themselves reluctant
to implement the judgments handed down by the European Court of
Human Rights in the case of
OAO Neftyanaya
Kompaniya YUKOS v. Russian Federation,Note in which it held that there
had been various violations of the Convention (chiefly of Article
6 and Article 1 of Protocol No. 1). In its judgment on just satisfaction,
the Court awarded a total of over 1.8 billion euros to the shareholders
of the applicant company by way of just satisfaction for pecuniary
damages and said that the authorities must produce, in co-operation with
the Committee of Ministers, a comprehensive plan by 15 June 2015,
including a binding timeframe, for distribution of this award of
just satisfaction. At its 1222nd meeting (DH) in March 2015, the
Committee of Ministers invited the Russian authorities to comply
with this deadline and actively co-operate with the Secretariat.
However, no steps have been taken in this respect.
37. On 14 July 2015, the Russian Constitutional Court published
a statement pointing out that “the participation of the Russian
Federation in any international treaty does not mean giving up national
sovereignty. Neither the European Convention on Human Rights, nor
the legal positions of the European Court of Human Rights based
on it, can cancel the priority of the Constitution. Their practical
implementation in the Russian legal system is only possible through
recognition of the supremacy of the Constitution’s legal force”.
Note An amendment to the
federal constitutional law was subsequently passed by the State
Duma on 4 December 2015 and approved by the Federation Council on
9 December 2015;
Note according
to that text, the Constitutional Court is empowered to declare decisions
of international courts (including the European Court of Human Rights)
as “non-enforceable” on grounds of their incompatibility with the
“fundamentals of the constitutional order of the Russian Federation”
and “with the system of human rights established by the Russian
Federation Constitution”.
38. In an interim opinion adopted at its session on 11 and 12
March 2016 (and issued at the request of our committee), the European
Commission for Democracy through Law (Venice Commission) strongly
criticised that amendment as being contrary to international law,
notably the
Vienna
Convention on the Law of Treaties, and made a number of recommendations concerning changes
to the federal constitutional law.
Note Notwithstanding
this, on 19 April 2016, the Russian Constitutional Court applied
this new law in the context of implementing the
Anchugov and Gladkov v. Russia judgment
Note relating to the general
prohibition on voting for prisoners; it ruled out any constitutional
amendment seeking to remove that prohibition in the wake of the European
Court of Human Rights' judgment but, at the same time, accepted
that a legislative change would be possible to relax existing restrictions
on the right to vote for prisoners serving sentences for less serious crimes.
Note At
its session on 10 and 11 June 2016, the Venice Commission adopted
a
final
opinion on the amendments to the federal constitutional law, confirming its earlier findings.
39. At its 1273rd meeting (DH) in December 2016, the Committee
of Ministers noted with concern that the Minister of Justice had
lodged an application with the Constitutional Court concerning the
possibility of enforcing the judgment on just satisfaction. The
Constitutional Court, in its decision handed down on 19 January
2017,
Note concluded that it was impossible
to enforce the judgment in respect of the compensation for pecuniary
damage but, at the same time, a compromise had to be sought, given
the fundamental importance of the European system of human rights
protection, and that the government should reflect on compensating
the associates of YUKOS in the conditions set forth in paragraph
7 of its decision.
40. At its last – 1280th – meeting (DH) in March 2017, the Committee
of Ministers expressed “serious concern at the non-implementation
of the judgment of 31 July 2014 so far”, firmly reiterated “the
unconditional obligation assumed by the Russian Federation” under
Article 46 of the Convention to abide by the judgments of the European
Court of Human Rights” and urged the authorities to inform the Committee
of Ministers about “all relevant steps towards an appropriate solution”
and also to co-operate with the Committee of Ministers and its Secretariat.
Note The Committee of Ministers
decided to resume consideration of this case in September 2017 at
the latest.
41. On 21 January 2017, in a
declaration made jointly with the Monitoring Committee's co-rapporteurs
for the Russian Federation, I criticised the effects of the decision
of the Constitutional Court on the implementation of the judgment
OAO Neftyanaya Kompaniya YUKOS and
of European Court of Human Rights judgments as a whole. In our opinion,
this decision is an obstacle to the implementation of that judgment,
and the Russian authorities should consider amending the constitutional
provisions blocking implementation of certain European Court of
Human Rights judgments. Selective implementation of European Court
of Human Rights judgments is unacceptable.
4.2.7 Catan and others v. Russian Federation
42. Another judgment against the
Russian Federation – Catan and others –
raises complex problems of implementation. This case concerns the
violation of the right to education (Article 2 of Protocol No. 1)
of the applicants – 170 pupils or parents of pupils using the Latin
alphabet and living in the Transnistrian region of the Republic
of Moldova, following the forced closure of schools pursuant to
a “law” of the “Moldavian Republic of Transnistria” (the "MRT”).
Even though there was no evidence of any direct participation by
Russian agents in the measures taken against the applicants nor
any evidence of Russian involvement in the “MRT’s” language policy
in general, the Court handed down this judgment against the Russian
Federation, considering that it exercised effective control over
the “MRT” at the time of the events. The Committee of Ministers
has been examining this case since December 2013 and has already
adopted three interim resolutions owing to the lack of progress
in implementing this judgment. In June 2016, the Russian Federation
expressed its intention to elaborate on the conclusions of high-level
conferences and other events with a view to seeking an acceptable response
to the Court’s judgment. Recalling that intention on the part of
the Russian authorities, in March 2017, the Committee of Ministers
urged them to complete their reflection as soon as possible, engage
in constructive dialogue and fully co-operate with the Committee
of Ministers and its Secretariat (at the 1280th meeting DH).
5 Assessment of recent reforms and other
measures taken within the Council of Europe and in certain member
States to improve the implementation of European Court of Human
Rights judgments
43. The 2016 annual report of the
Committee of Ministers reports a number of measures taken within
the Council of Europe to improve the execution of judgments process
and the procedure for its supervision by the Committee of Ministers.
Note
44. For a number of cases, progress in implementation has been
made possible by targeted activities (round tables, analysis by
legal experts, exchanges of views or training programmes) of the
Committee of Ministers and the Department for the execution of judgments
and also by the inclusion of issues relating to the implementation
of judgments in the main general programmes of co-operation undertaken
by the Council of Europe with a great many countries (Albania, Armenia,
Azerbaijan, Bosnia and Herzegovina, Georgia, Republic of Moldova
and Ukraine) thanks to funding from certain member States (notably
via the Council's
Human
Rights Trust Fund), the European Union or other organisations.
45. In December 2015, the CDDH submitted its “
Report
on the longer-term future of the system of the European Convention
on Human Rights”, which concluded that the responses to the challenges
faced by the Convention system in the long term could be found within
the framework of the existing structures; in March 2016, the Court
expressed agreement with this observation. I would like to stress
in this connection that the CDDH listed the prolonged non-implementation
of a number of judgments and direct threats to the Court's authority
among those challenges. The CDDH has also set up a Committee of
Experts on the System of the European Convention on Human Rights
(DH-SYSC), which examines the application of
Recommendation
CM/Res(2008)2 on efficient domestic capacity for rapid execution of
judgments of the European Court of Human Rights. The DH-SYSC has
prepared a compilation of good domestic practices in the execution
of judgments and is currently working on a Guide to good practice
with a view to its adoption by the Committee of Ministers; this
group of experts believes it unnecessary to update Recommendation
CM/Res(2008)2.
Note
46. The 2016 annual report of the Committee of Ministers also
emphasises that it has improved the transparency of its supervision.
Since June 2016, the list of cases to undergo detailed examination
at a Committee of Ministers meeting is published as soon as the
meeting is over. Following an amendment to the
Rules
of the Committee of Ministers for the supervision of the execution
of judgments and of the terms of friendly settlements (of 18 January 2017), other intergovernmental international
organisations operating in the sphere of human rights may also submit
communications on the execution of judgments (see Rule 9.3) but,
as of yet, little use has been made of this option. The Secretariat
of the Committee of Ministers and the Department for the Execution
of Judgments have also improved their websites; the Department's
site now features a new search engine,
HUDOC EXEC, as well as “country factsheets”. In addition, the number
of communications from NGOs and national human rights protection
institutions has risen, reaching 90 in 2016, up from around the
80 mark in previous years.
Note Civil society is showing a
growing interest in the issue, and a number of NGOs (including the
Open Society Justice Initiative and Judgment Watch) have established
an umbrella organisation in Strasbourg – the
European
Implementation Network. The question of the transparency
of the activities of the Committee of Ministers was also raised
by our expert, Ms Betsy Apple, at the hearing in June 2016. Ms Apple
thought that the activities of the Committee of Ministers and the Department
for the Execution of Judgments remained opaque and the language
of Committee of Ministers decisions and other documents was incomprehensible
to the general public, despite the steps forward taken with the
publication of annual reports of the Committee of Ministers since
2007. Ms Apple observed that, since 2013, in order to make NGOs'
voices heard and provide the Committee of Ministers with information
from non-governmental sources, her organisation – Open Society Justice
– had been organising briefings for the members of the Committee
of Ministers prior to DH meetings and highlighted that this initiative
had been highly successful. In the expert's view, the briefings
had allowed, on the one hand, the Committee of Ministers texts to
be more demanding and firmer in tone and, on the other hand, to
better reflect the stance of civil society. Even so, this had not
sustainably reinforced the role of NGOs in the process of supervision
of the implementation of judgments, as they still came up against
bureaucratic obstacles.
47. The 2016 annual report of the Committee of Ministers also
notes a reinforcement of the structures set up to co-ordinate national
action, as well as an increased interest on the part of national
parliaments, including through new specific structures they have
developed to follow the execution process (in Georgia in June 2016; a
similar initiative has also been launched in the Republic of Moldova)
and through annual reports from the governments (in Belgium in 2016,
for example, the Minister of Justice published the first report
on Belgian disputes before the European Court of Human Rights).
Note Unfortunately,
such a structure is yet to see the light of day in France, despite
three recent initiatives (one launched by the rapporteur and the
other two – in 2011 and 2014 – by our colleagues Mr Jean-Claude
Mignon and Ms Marietta Karamanli respectively). I also raised these
questions during my visits to Poland and Hungary, where I praised
the efforts of both governments, which present their work to implement
judgments to parliament on an annual basis. In Warsaw, I further
welcomed the work of the inter-ministerial group for the execution
of the Court's judgments but also expressed disappointment that
the Sub-committee on the execution of judgments, set up in February
2014 under the auspices of the Justice and Human Rights Committee
and the Foreign Affairs Committee of the Sejm, had not been reconstituted
after the parliamentary elections of October 2015, a fact that is
all the more regrettable as the sub-committee had worked in close
collaboration with civil society.
48. It should be remembered that, since September 2013, our Assembly's
Parliamentary Projects Support Division has been running awareness-raising
activities in this field, for example by organising seminars on
the Convention for parliamentarians and parliamentary legal advisers.
Note Recently, in
March and April 2017, seminars were run for Georgian and Ukrainian
members of parliament.
49. Very useful recommendations and suggestions addressed to various
Council of Europe organs are to be found in a report by the Directorate
of Internal Oversight, published on 30 January 2017. The report,
entitled “
Evaluation
of the effectiveness of Council of Europe support to the implementation
of the European Convention on Human Rights at national level” recommends
inter alia that
the Secretariat of the Assembly strengthen its “support to national
parliaments in setting up structures supervising the execution of
judgments and ensuring compliance of draft legislation with the
Convention” and strengthen awareness of the Convention at the level
of parliamentarians and officials. According to its recommendations,
it would also be desirable for the Assembly rapporteurs to include
law faculties in the programmes of their fact-finding visits and
participate in public debates on the topic, and hearings with government
agents should be organised. The report also points out two major
difficulties in implementing judgments: it is not always clear (to
the State concerned) what measures are to be taken, and it is not
always possible to provide the Committee of Ministers with proof
of impact of legislative changes made and other documents required
for the closure of cases. It was noted in this connection that the
lack of secondary laws and the related budgetary allocations in
the action plans were the most important factors blocking effective
implementation of the laws required to fully enforce a European
Court of Human Rights judgment.
50. There is one other important question, not examined in sufficient
detail in the 2016 annual report of the Committee of Ministers,
which is yet to be considered in this context: the role of the Court
in the process of implementing judgments. As pointed out in my predecessor's
report, since Protocol No. 14 to the Convention entered into force,
the Court has taken on a more proactive role in this process, by
handing down an increasing number of pilot judgments or “quasi-pilot
judgments”; however, this practice has also been called into question by
some of the Court's judges, the CDDH and certain legal experts.
Note These
judgments give the Committee of Ministers more or less detailed
indications as to the measures (individual and/or general) for implementing
the judgments. According to the former Court judge Mr Giorgio Malinverni,
they have enabled the national authorities to satisfy the requirements
of the Court and the Committee of Ministers, and the pilot judgment procedure
is considerably lightening the Court's workload by reducing the
number of repetitive cases. However, this practice should not encroach
on States' freedom to choose execution measures. It would be useful
to have more frequent exchanges between the Department for the Execution
of Judgments and the judges and/or lawyers of the Court to improve
the quality and targeting of judgments.
51. Concerning the use of Article 46.4 of the Convention (never
deployed by the Committee of Ministers to date) advocated by my
predecessor, opinion remains starkly divided. Mr Malinverni believes
that using this infringement procedure could actually make things
worse. It should be borne in mind that the triggering of such a
procedure would further delay the implementation of a judgment,
as the case would be sent back from the Committee of Ministers to
the Court, which would require at least several years to examine
it. Using this procedure would mean that the Committee of Ministers
had already failed in its role of “supervisor”, as the judgment
had not been executed.
Note It
might be more productive to first “test” the procedure provided
for in Article 46.3 of the Convention, whereby the Committee of
Ministers can refer a judgment to the Court for interpretation.
6 Conclusions
52. Looking at the cases examined
in my predecessor's very comprehensive report and relating above
all to structural problems requiring large-scale general measures,
we can see that progress has been made in a number of areas since
2015, in all the countries concerned, allowing the closure of cases
by the Committee of Ministers, particularly groups of cases concerning
length of judicial proceedings (Bulgaria, Greece, Italy, Poland
and Romania), poor conditions of detention and lack of an effective
remedy in this regard (Italy and Poland), abuses by law-enforcement
officials (Romania), excessive duration or unlawfulness of remand detention
(Russian Federation and Turkey), as well as the non-enforcement
of domestic judicial decisions and the supervisory review (
nadzor) procedure in the Russian
Federation. Substantial progress has been made in several other
cases or groups of cases but not yet enough for those cases to be
closed. As the 2016 annual report of the Committee of Ministers
points out, this progress is more often than not in the shape of
reforms focusing on questions linked to the rule of law. Some of
these call for strong political will, such as in the
Kurić or
Alisić
v. Slovenia cases (which unfortunately I have been unable
to analyse in detail within the framework of the present report),
and represent considerable political and economic challenges.
Note The
2016 report of the Committee of Ministers also stressed the considerable
improvement of the effectiveness of domestic remedies.
53. Even so, a number of highly complex problems persist (particularly
in the Russian Federation, Turkey and Ukraine) and the passage of
time is a further indication of the lack of political will to implement
certain judgments, such as the judgments against Turkey concerning
the northern part of Cyprus, for which the Turkish authorities refuse
to pay just satisfaction, the numerous judgments concerning grave
violations of the Convention in Chechnya or the
Bekir-Ousta v. Greece judgment concerning
freedom of association of ethnic minorities in Greece. In this context,
we should also point to the complex question of the (non-)implementation of
over 400 judgments concerning the non-enforcement of domestic judicial
decisions in Ukraine; since 2005, no reliable and tangible solution
has been introduced to remedy this problem and stem the flow of
new cases into the Court. It must also be observed that the reports
by Mr Pourgourides and Mr de Vries focused on judgments that had
not been implemented for more than five years and several of these
judgments – mentioned in the latter's report – had already been
pending for more than ten years when the Assembly adopted
Resolution 2075 (2015). Two years on from the adoption of that text, a number
of judgments mentioned in the present report have yet to be implemented
after more than 12 years (see
inter alia Hirst No. 2). That said, the lack
of political will to implement certain judgments is sometimes very
clear at a far earlier stage, as in the cases of
Ilgar Mammadov, OAO Neftyanaya Kompaniya YUKOS or
Catan and others. The “pockets of
resistance” examined above relate above all to the question of individual
measures (
Ilgar Mammadov or
Al-Nashiri) or the payment of just
satisfaction (
OAO Neftyanaya Kompaniya
YUKOS); the question of individual measures is often
directly linked to a question of general measures which must be
taken before individual measures can be implemented (
Hirst No. 2, Paksas, Sejdić and Finci or
Catan). Some cases also show that the
implementation of judgments requires a full and clear commitment
from national parliaments and/or political parties and leaders (
Hirst No. 2, Paksas or
Sejdić and Finci), while in cases
such as
Ilgar Mammadov or
OAO Neftyanaya Kompaniya YUKOS the
obstacles to implementing judgments also come from the judicial authorities.
So the executive authorities are not always the only ones responsible
for delays in enforcing judgments or for their non-enforcement.
Hindrances to the smooth running of the process are not always easy to
identify and may sometimes be caused by third States – as in the
cases in the
Al Nashiri group
– or be due to a lack of clarity in the judgment itself (as in the
Catan and others judgment, where
the Court held that the Russian Federation was responsible for the
violations of the Convention while admitting that there was no evidence
of any direct involvement of Russian agents in the violations found).
54. Clearly, the implementation of the Court's judgments remains
a complex process in certain cases and I call on all the authorities
concerned to show strong political commitment in order to resolve
all the problems arising in connection with that process and deploy
all available means to arrive at constructive solutions. That commitment
must be forthcoming not only from the executive authorities but
also from the legislative branch. I reiterate my predecessors' calls
for national parliaments to take a stronger interest in this matter,
create structures to ensure that draft legislation is compatible
with the Convention as interpreted by the Court and encourage the
executive authorities to keep them regularly informed of the progress
achieved in this area. I also urge all the organs of the Council
of Europe – particularly the Committee of Ministers, the Commissioner for
Human Rights, the Secretary General and our Assembly – to more strongly
focus on these questions, apply a transversal approach that would
make it possible to take the issue of implementing the Court's judgments into
account in the projects carried out under the auspices of our Organisation,
improve the transparency of activities in this sphere (particularly
of the Committee of Ministers) and co-operate more with civil society.
The Secretary General has the power to launch investigations on
the basis of Article 52 of the Convention and he could use that
power more often. He could also do more to raise the issue of implementing
judgments when visiting individual countries and in high-level meetings.
Where the Commissioner for Human Rights is concerned, I encourage
him to do likewise in his activities (preparation of periodic or
other reports and country visits). The resources of the Department
for the Execution of Judgments should be further reinforced. In addition,
the Committee of Ministers should continue improving the transparency
of its activities and consider how civil society could be regularly
involved in the process of supervising the execution of judgments.
55. Implementation of the Court's judgments is a legal obligation
arising from Article 46.1 of the Convention, and constant refusal
to fulfil that obligation raises questions from the viewpoint of
Article 3 of the Statute of the Council of Europe (ETS No. 1) regarding
respect for human rights, one of our Organisation's three key values. I
call on the States that are most reluctant to fully and swiftly
implement certain Court judgments to abide by that obligation and
make every possible effort to that end, in co-operation with the
competent organs of the Council of Europe and drawing on the good
examples set by other member States. The implementation of judgments
depends above all on the political will of States. Accordingly,
I urge the States concerned to demonstrate that will and prevent
or put an end to any undermining of the Court's authority.
