ISSN 1608-9618 H/Inf (2008) 3

COUNCIL CONSEIL OF EUROPE DE L’EUROPE

How can legal professionals get human rights training?

The new HELP Programme website – http://www.coe.int/help – was launched in October 2007. It provides legal professionals with the tools and materials necessary for ensuring an appropriate level of training on the European Convention on Human Rights and the case-law of the European Court of Human Rights. (See the article on the HELP Programme inside this issue of the Bulletin) Human rights information bulletin

No. 73, 1 November 2007 – 29 February 2008

Human rights information bulletin

No. 73, November 2007 – February 2008

The Human rights information bulletin is published three times a year This issue published April 2008. Date of next issue: September 2008. by the Directorate General of Human Rights and Legal Affairs, Council ISSN: 1608-9618 (print edition) and 1608-7372 (electronic edition). In- of Europe, F-67075 Strasbourg Cedex. ternet address: http://www.coe.int/human_rights/. Cover photo: © Getty images

Contents Treaties and conventions

Signatures and ratifications ...... 4 Convention on Action against Trafficking in Human Beings . . . . . 4 European Court of Human Rights

Advisory opinion of the Court . . . . 5 Arvanitaki-Roboti and others v. Greece, Rumyana Ivanova v. Bulgaria, 30 Kakamoukas and others v. Greece, 19 Hummatov v. Azerbaijan, 32 Grand Chamber judgments ...... 7 Dickson v. the United Kingdom, 20 Ryakib Biryukov v. Russia, 33 Kafkaris v. Cyprus, 7 Selected Chamber judgments . . . . 22 Liu and Liu v. Russia, 33 D.H. and others v. the Czech Republic, 9 Mocarska v. Poland, 22 Kovach v. Ukraine, 35 Stoll v. Switzerland, 10 Khamidov v. Russia, 22 Chamber decision ...... 35 Saadi v. the United Kingdom, 12 Galstyan v. Armenia, 23 Pfeifer v. Austria, 25 Wolkenberg and others v. Poland, Saadi v. Italy, 13 Witkowska-Tobola v. Poland, 35 Driza v. Albania, E.B. v. France, 15 Ramadhi and others v. Albania, 26 Preparation of the Court’s annual Ramanauskas v. Lithuania, 16 Dybeku v. Albania, 28 report ...... 35 Guja v. Moldova, 17 Riad and Idiab v. Belgium, 29 A short history of the annual report, 35 Execution of the Court’s judgments

First annual report (2007) on 1013th HR meeting – general Interim resolutions (extracts) . . . 49 supervision of execution of information ...... 38 Selection of Final Resolutions judgments ...... 38 Main texts adopted ...... 38 (summaries) ...... 50 Selection of decisions adopted, 38 Committee of Ministers

Protection of children against sexual Rapid execution of judgments of the Slovakian chairmanship of the exploitation and abuse ...... 54 European Court of Human Rights 55 Committee of Ministers ...... 56 Secret detentions involving Council The protection of human rights Co-operation between the Council of of Europe member states ...... 54 defenders and the promotion of Europe and the European Union . 58 their activities ...... 56 Parliamentary Assembly

Evolution of human rights ...... 59 The President of the Parliamentary United Nations Security Council and Developments as regards the future Assembly urges all parties to maintain European Union blacklists, 60 status of Kosovo, 59 peace in Kosovo, 59 Video surveillance of public areas, 60

1 Human rights information bulletin, No. 73 Council of Europe

Situation of human rights in member Japan considers moratorium on the Situation of children living in post- and observer states ...... 61 death penalty, 61 conflict zones in the Balkans, 61 Honouring of obligations and commitments by Georgia, 61 Commissioner for Human Rights

Mandate ...... 62 International colloquy on the prevention Exchange of views with the European of torture in Europe, 64 Committee of Social Rights of the Country visits ...... 62 Council of Europe, 65 Reports presented to the Ministers’ Official visits, 62 Deputies of the Council of Europe . . Declaration by the Council of Europe Contact visits, 63 64 Committee of Ministers , 66

Meetings organised by the Office of Other events ...... 65 Communication and information the Commissioner ...... 64 Conference on Roma women’s rights , 65 activities ...... 66 First meeting of Focal Points of National Conference on support services for Viewpoints, 66 Human Rights Structures , 64 women victims of violence, 65 Speeches and statements, 66 European Social Charter

Signatures and ratifications . . . . . 67 Seminar as part of the action plan of the Collective complaints: latest Council of Europe 3rd Summit, 68 developments ...... 68 About the charter ...... 67 Follow up to collective complaints, 68 Meeting on non-accepted provisions of European Committee of Social the European Social Charter, 68 Rights (ECSR) ...... 67 New collective complaints ...... 69

Significant meetings ...... 68 Major awareness-raising activity 68 Publications ...... 69 Convention for the Prevention of Torture

European Committee for the Periodic visits ...... 70 Reports to governments folllowing Prevention of Torture (CPT) . . . . . 70 visits ...... 72 European Commission against Racism and Intolerance (ECRI)

Country-by-country monitoring . 78 Seminar with national specialised Publications ...... 80 bodies to combat racism and racial Work on general themes ...... 79 discrimination: the relationship General policy recommendations, 79 between integration and the fight against racism and racial Relations with civil society ...... 79 discrimination, 80 Equality between women and men

Standard-setting initiative ...... 81 Council of Europe Campaign to Looking forward, 83 Combat Violence against Women, Financing for gender equality . . . 82 including Domestic Violence . . . . 82 Action against trafficking in human beings

Entry into force of the Convention on Setting up the monitoring Action against Trafficking in Human mechanism of the convention . . . 85 Beings [CETS No. 197] ...... 84 Media and information society

Texts and instruments ...... 86 Wild Web Woods – Play and avoid Armenia, 88 dangers on the Internet ...... 88 Internet Governance Forum (IGF) 87 Georgia, 89 Co-operation and assistance . . . . 88 Ukraine, 89

2 Council of Europe

Serbia,1 9 Recourse for the media against attacks Neighbouring rights of broadcasting Montenegro, 91 on their freedom, 92 organisations, 92

Looking forward ...... 91 Fight against terrorism and freedom of Living together, 91 expression and information, 92 Framework Convention for the Protection of National Minorities

Second monitoring cycle ...... 93 Lithuania, 94 Montenegro, 94 Switzerland, 93 First monitoring cycle ...... 94 Publications ...... 94 Human rights co-operation and awareness

Training and awareness-raising Programme “Fostering a Culture of Training and awareness-raising activities ...... 95 Human Rights for Ukraine and South activities for judges, prosecutors and Programme “Development of a reliable Caucasus”, 96 lawyers ...... 98 and functioning prison system Programme entitled “Enhancing the Training and awareness-raising respecting fundamental rights and capacity of legal professionals and law activities for police officers ...... 99 standards and enhancing of regional co- enforcement officials in Russia to apply operation in the western Balkans”, 95 the ECHR in domestic legal proceedings Awareness-raising activities in the and practices”, 98 field of the media ...... 100 Other activities ...... 101 HELP Programme What is the HELP Programme?, 103 What are the most recent What languages are the materials developments?, 104 available in?, 104 Who is the programme for?, 103 What has been the reaction to the HELP What are the plans for the future Can you tell us more about the Programme so far?, 104 development of the site and the website?, 103 programme?, 104 Legal co-operation

European Committee on Crime Problems ...... 105 Venice Commission

National human rights institutions 106 European human rights institutes

Serbia ...... 107

3 Treaties and conventions

Signatures and ratifications

European Convention on Human Rights Convention on the Protection of Protocol No. 12 was ratified by Spain on 13 Feb- Children against Sexual Exploitation and ruary 2008. Sexual Abuse [Note: This protocol provides for a general pro- The Convention on the Protection of Children hibition on discrimination. It guarantees that against Sexual Exploitation and Sexual Abuse no one shall be discriminated against for any was signed by Italy on 7 November 2007, reason by any public authority.] Ukraine on 14 November 2007, Denmark on 20 December 2007 and Iceland on 4 February 2008.

Convention on Action against Trafficking in Human Beings

The Council of Europe Convention on Action committed against one of its nationals outside against Trafficking in Human Beings entered the territory of the French Republic, only if the into force on 1 February 2008. It was signed by offences are the subject either of a complaint Lithuania on 12 February 2008 and ratified by from the victim or of an official denunciation France on 9 January 2008, Bosnia and Herze- by the authorities of the country where they govina on 11 January 2008, Norway on have been committed.” 17 January 2008, Malta on 30 January 2008 and Malta made the following reservation: Portugal on 27 February 2008. “Regarding Article 31, paragraph 1, of the con- France made the following reservations: vention, Malta declares that it will apply the ju- “In accordance with Article 31, paragraph 2, of risdiction rules set out in sub-paragraph (d) the convention, the French Government de- only when the offence is committed by one of clares that it will establish its jurisdiction on of- its nationals. Malta declares that it will not fences established in accordance with apply the jurisdiction rules set out in sub- Article 20 of this convention and committed by paragraph (e) of this article.” its nationals outside the territory of the French Portugal made the following reservation: Republic, only if the offences are also punisha- “The Portuguese Republic declares that, with ble under the legislation of the state where they regard to the provisions contained in Article 31, have been committed, and if these offences are paragraph 1, sub-paragraphs d) and e), of the also the subject either of a complaint from the convention, it reserves the right not to apply victim or his/her beneficiaries, or of an official the provisions thereof established, considering denunciation from the authorities of the that the Portuguese criminal law establishes country where they have been committed. more rigorous and encompassing jurisdiction In accordance with Article 31, paragraph 2, of rules than the ones established in the said pro- the convention, the French Government de- visions of Article 31.” clares that it will establish its jurisdiction on of- See also the chapter on action against traffick- fences established by this convention and ing in human beings, page 84.

Internet: http://conventions.coe.int/

4 Signatures and ratifications European Court of Human Rights

The judgments summarised below constitute a small selection of those delivered by the Court. More extensive information can be found in the HUDOC database of the case-law of the European Convention on Human Rights.

The summaries of cases presented here are produced for the purposes of the present Bulletin, and do not engage the responsibility of the Court.

The procedure of joint ex- Court’s case-load statistics (provi- • 497 (710) applications declared • 574 (622) applications struck off amination of admissibil- sional) between 1 November 2007 admissible, of which 457 (623) in the list. ity and merits under and 29 February 2008: a judgment on the merits and The figure in parentheses reflects Article 29 §3 of the Con- • 589 (826) judgments delivered 40 (87) in a separate decision the fact that a judgment/decision vention is now used fre- • 9325 (9341) applications de- may concern more than one appli- quently. Separate clared inadmissible cation. admissibility decisions are only adopted in more complex cases. This facili- tates the processing of applications, doing away Internet: HUDOC database: http://hudoc.echr.coe.int/ with one procedural step.

Advisory opinion of the Court

Under Article 47 (advisory opinions) of the European Convention on Human Rights, the Court was asked by the Council of Europe’s executive arm, the Committee of Ministers, to give its opinion on certain legal questions con- cerning gender balance in the composition of the lists of candidates submitted for the election of judges to the Court.

The Court unanimously concluded concluded unanimously that the have to be nationals of the country that it is not compatible with the request did not come within its ad- concerned, but in general they are. European Convention on Human visory competence. Rights for a list of candidates for In its Resolutions 1366 (2004) and 1426 (2005) the Assembly stipulates election to the post of judge at the Background and Court to be rejected on the sole that it will not consider lists which ground that there is no woman in- questions do not include at least one candi- cluded in the proposed list. date of each sex except when the Under Article 22 §1 of the Conven- candidates belong to the sex which It also called for exceptions to the tion, judges to the Court are elected is under-represented in the Court; principle that lists must contain a from the various countries which the sex to which under 40% of the candidate of the under-represented have ratified the European Conven- total number of judges belong. In sex to be defined as soon as possi- tion on Human Rights. They are effect that means that all-male lists ble. elected by the Parliamentary As- are rejected. This is the second time that the sembly of the Council of Europe on Court has received a request from the basis of lists of three candidates As a consequence of this policy the the Committee of Ministers for an put forward by the country con- all-male list of candidates submit- advisory opinion. The first request cerned, under Article 22 §1 of the ted from Malta on 17 July 2006 was concerned the co-existence of the Convention. Under Article 21 §1, rejected by the Assembly. The Convention on Human Rights of “judges shall be of high moral char- Maltese Government objected, in the Commonwealth of Independent acter and must either possess the particular stating that it had ful- States and the European Conven- qualifications required for appoint- filled its obligations under tion on Human Rights. On 2 June ment to high judicial office or be ju- Article 21 §1 and that there was 2004 the Court delivered its deci- risconsults of recognised nothing in the Convention itself sion on that question, in which it competence”. The candidates do not about gender balance. There was

5 Human rights information bulletin, No. 73 Council of Europe considerable debate in the Assem- sion on a particular list or within cluding the judiciary. Although only bly and elsewhere on the subject. the Court. Nevertheless, while con- a minority of countries had adopted Against that background, on 17 July siderations of that kind were legiti- specific rules aimed at ensuring a 2007, the Committee of Ministers mate, they could not release the certain balance between the sexes in asked the Court, under Article 47, to country concerned from its obliga- the courts, a great many of them give an advisory opinion on the fol- tion to present a list of candidates sought to promote such a balance lowing two questions: each of whom fulfilled all the moral through appropriate policies. The qualities and professional qualifica- same trend could be observed in the 1 Can a list of candidates for the tions laid down in Article 21 §1. For international courts and was also post of judge at the European the Court, it was vital to its author- reflected in the European Court of Court of Human Rights, which ity and the quality of its decisions Human Right’s own Rules of Court. satisfies the criteria listed in that it be made up of members of Article 21 of the Convention, be However, it was essential that such a the highest legal and moral stand- refused solely on the basis of policy did not make it more diffi- ing. gender-related issues? cult for the countries which had rat- ified the Convention to put forward 2 Are Resolution 1366 (2004) and Furthermore, while it was clear that candidates who also satisfied all the Resolution 1426 (2005) in the Assembly was required to elect requirements of Article 21 §1, which breach of the Assembly’s re- judges on the basis laid down by were to be given primary considera- sponsibilities under Article 22 of Article 22, it also had a certain lati- tion. The principle of nominating the Convention to consider a tude when it came to establishing candidates of the under- list, or a name on such list, on the procedure for the election of represented sex at the Court was the basis of the criteria listed in judges, although it was bound first generally accepted, but not without Article 21 of the Convention? and foremost by Article 21. provision being made for deroga- It was obvious too that the Assem- tions from the rule. The obligation Procedure bly might take account of additional was therefore one of means, not of criteria which it considered relevant The request for an advisory opinion outcome. for the purposes of choosing was assigned to the Grand Chamber between the candidates put forward Such a situation might arise in par- of the Court. and might, as it had done in a bid to ticular for a country where the Written comments were submitted ensure transparency and foreseea- number of people working in the by the Assembly and the govern- bility, incorporate those criteria in legal profession was small. Those ments of 13 countries (Austria, the its resolutions and recommenda- states had not to be placed in a po- Czech Republic, France, Georgia, tions. Indeed, neither Article 22 nor sition where, in order to fulfil the Malta, Monaco, Portugal, Slovakia, the Convention system set any ex- criterion concerning the sex of can- Slovenia, Spain, Switzerland, Turkey plicit limits on the criteria which didates, they could only nominate and the United Kingdom). Thirty- could be employed by the Assembly candidates who satisfied the crite- seven governments also com- in choosing between the candidates ria of Article 21 §1 if they chose non- mented within the time-limit on put forward. nationals. It would be unacceptable whether their country had rules de- for a state to be forced to nominate signed to ensure the presence of The Court noted that the inclusion non-national candidates solely to women (or, of the under- of a member of the under- satisfy the criterion relating to a represented gender) within their represented sex was not the only candidate’s sex, which was not en- supreme and/or constitutional criterion applied by the Assembly shrined in the Convention. Further- courts. which was not explicitly laid down more, it would be liable to produce in Article 21 §1. The Assembly also a situation where the elected candi- The decision was given by a Grand required candidates to have “suffi- date did not have the same knowl- Chamber of 17 judges. cient knowledge of at least one of edge of the legal system, language the two official languages” of the Summary of the decision or indeed cultural and other tradi- Council of Europe. A sufficient tions of the country concerned as a The Court found that the first ques- knowledge of at least one of the of- candidate from that country. tion concerned the rights and obli- ficial languages was necessary in Indeed, the main reason why one of gations of the Parliamentary order to make a useful contribution the judges hearing a case had to be Assembly in the procedure for elect- to the Court’s work, given that the the “national judge” was precisely to ing judges, as derived from Court worked only in those two lan- ensure that the judges hearing the Article 22 in particular and from the guages. The criterion relating to a case were fully acquainted with the Convention system in general. Ac- candidate’s sex lacked an implicit relevant domestic law of the cordingly, whatever its implications, link with the general criteria con- country concerned and the context it was of a legal character and as cerning judges’ qualifications laid in which it was set. It would there- such fell within the scope of the down in Article 21 §1. fore be incompatible with the Con- Court’s jurisdiction under Article 47 The Court observed that the crite- vention to require a country to §1 of the Convention. The Court rion in question derived from a nominate a candidate of a different then considered that in view of its gender-equality policy which re- nationality solely to achieve gender reply to the first question (below), flected the importance of equality balance. it was not necessary to answer the between the sexes in contemporary Accordingly, although the aim of second question. society and the role played by the ensuring a certain mix in the com- In relation to the first question, the prohibition of discrimination and position of the lists of candidates Court observed that there was by positive discrimination measures was legitimate and generally ac- nothing to prevent contracting in attaining that objective. There cepted, it might not be pursued parties from, for instance, attempt- was far-reaching consensus as to without provision being made for ing to achieve a certain balance the need to promote gender balance some exceptions designed to enable between the sexes or between dif- at national level and in the national each country to choose national ferent branches of the legal profes- and international public service, in- candidates who satisfied all the re-

6 Advisory opinion of the Court Council of Europe European Court of Human Rights

quirements of Article 21 §1. The where the country concerned had involving a call for candidates, the precise nature and scope of such ex- taken all the necessary and appro- Assembly might not reject the list in ceptions still had to be defined. priate steps with a view to ensuring question on the sole ground that no The Court concluded that, in not al- that the list contained a candidate such candidate featured on it. Ac- lowing any exceptions to the rule of the under-represented sex, but cordingly, exceptions to the princi- that the under-represented sex without success, and especially ple that lists must contain a must be represented, the current where it had followed the Assem- candidate of the under-represented practice of the Assembly was not bly’s recommendations advocating sex should be defined as soon as compatible with the Convention: an open and transparent procedure possible.

Grand Chamber judgments

The Grand Chamber (17 judges) deals with cases that raise a serious question of interpretation or application of the Convention, or a serious issue of general importance. A chamber may relinquish jurisdiction in a case to the Grand Chamber at any stage in the procedure before judgment, as long as both parties consent. Where judgment has been delivered in a case, either party may, within a period of three months, request referral of the case to the Grand Chamber. Where a request is granted, the whole case is reheard.

Kafkaris v. Cyprus

Articles 3, 5 §1, 14 (no vio- Judgment of 12 February 2008. Concerns: complaint that changes in prison regulations and domestic lation), Article 7 (viola- tion) law meant that the applicant’s prison sentence was retroactively increased from 20 years to an indef- inite period.

Facts and complaints under section 4 of the Prison Disci- The application was lodged with the pline Law (Cap 286). European Court of Human Rights The applicant is Panayiotis Agapiou on 3 June 2004 and was declared ad- Limassol Assize Court held that the Panayi, alias Kafkaris, a Cypriot na- missable on 11 April 2006. On term “life imprisonment” used in tional, who was born in 1946. He is 31 August 2006 the chamber to the Criminal Code meant imprison- currently serving a mandatory sen- which the case had been allocated ment for the remainder of the life of tence of life imprisonment in relinquished jurisdiction in favour the convicted person. Nicosia Central Prison. of the Grand Chamber, under The case concerns, in particular, the However, the day the applicant was Article 30 fof the Convention. A applicant’s complaint that changes admitted to prison, he was given public hearing took place at the in prison regulations and domestic written notice by the prison author- Human Rights Building, Strasbourg, law meant that his prison sentence ities that the date set for his release on 24 January 2007. was 16 July 2002, subject to his good was retroactively increased from 20 The applicant complained: years to an indefinite period. conduct and industry during deten- tion. After committing a discipli- • that his mandatory life sentence On 9 March 1989 the applicant was nary offence, his release was amounted to an irreducible found guilty by Limassol Assize postponed to 2 November 2002. term of imprisonment; Court on three counts of premedi- The applicant’s appeal against his • that his continuous detention tated murder under the Criminal beyond the date set for his Code (Cap. 154). The next day he conviction was dismissed on 21 May 1990 by the Supreme Court. release by the prison authorities was sentenced to life imprisonment was unlawful; on each count. The applicant had On 9 October 1992 the Supreme • that it had left him in a pro- planted and detonated a bomb in a Court declared the prison regula- longed state of distress and un- car, killing its passengers, a man and tions in question to be unconstitu- certainty over his future; his two young children, aged 11 tional and ultra vires and, on 3 May and 13. 1996, the Prison Law of 1996 was en- • and that he had been subjected acted, repealing and replacing the to an unforeseeable prolonga- During the hearing before Limassol Prison Discipline Law. Section 12 of tion of his term of imprison- Assize Court concerning the sen- Prison Law of 1996 provided for the ment from a definite 20-year tencing of the applicant, the prose- remission of sentences for good sentence to an indeterminate cution invited the court to examine conduct or industry, except for life term for the remainder of his the meaning of the term “life im- prisoners. life. prisonment” in the Criminal Code and, in particular, to clarify whether The applicant was not released on He relied on Articles 3, 5 and 7. it entailed imprisonment of the 2 November 2002. Consequently, on He further complained under convicted person for the rest of his 8 January 2004, he submitted a Article 14 that, while most other life or just for a period of 20 years, as habeas corpus application to the inmates serving life sentences had provided by the Prison (General) Supreme Court challenging the law- been released having served their Regulations of 1981 and the Prison fulness of his detention, which was 20-year sentence, he remained the (General) (Amending) Regulations dismissed. He appealed unsuccess- longest-serving life prisoner and, as of 1987 (the Regulations), adopted fully. a life prisoner, that he was excluded

Kafkaris v. Cyprus 7 Human rights information bulletin, No. 73 Council of Europe from the possibility of any remis- prison life but that was inherent in sentence on the ground of good sion to his sentence under the nature of the sentence imposed conduct and industry. For those Section 12 of the Prison Law of 1996. and, considering the prospects for purposes, Regulation 2 defined life release under the current system, imprisonment as meaning impris- Decision of the Court did not warrant a conclusion of onment for 20 years. As admitted by inhuman and degrading treatment. the government, that was under- Article 3 Accordingly, the Court found no vi- stood at the time by the executive olation of Article 3. and the administrative authorities, The Court observed that the pros- including the prison service, as im- pect of release for prisoners serving Article 5 §1 posing a maximum period of life sentences in Cyprus was limited; 20 years to be served by any person The Court observed that, in impos- any adjustment of a life sentence who had been sentenced to life im- ing the life sentence, the assize being only within the president’s prisonment. court had made it quite plain that discretion subject to the agreement the applicant had been sentenced to of the attorney-general. However, The Court concluded that, at the life imprisonment for the remain- the Court did not find that life sen- time the applicant committed the der of his life as provided by the tences in Cyprus were irreducible offence, Cypriot law taken as a criminal code and not for a period with no possibility of release. Nine whole was not formulated with suf- of 20 years. The Court considered life prisoners were released in 1993 ficient precision, so as to enable the therefore that the fact that the ap- and another two in 1997 and 2005. applicant to discern, even with ap- plicant was subsequently given All of those prisoners, apart from propriate advice, to a degree that notice by the prison authorities of a one, had been serving mandatory was reasonable in the circum- conditional release date could not, life sentences. In addition, a life stances, the scope of the penalty of and did not, affect the sentence of prisoner could benefit from the rel- life imprisonment and the manner life imprisonment passed or render evant provisions at any time of its execution. Accordingly, there his detention beyond 2 November without having to serve a minimum had been a violation of Article 7. 2002 unlawful. Finding that there period of imprisonment. The Court was a clear and sufficient causal concluded that the applicant could Retrospective imposition of a connection between the conviction not claim that he was deprived of heavier penalty and changes in and the applicant’s continuing de- any prospect of release and that his tention, the Court found no viola- prison law continued detention as such, even tion of Article 5 §1. though long, constituted inhuman The Court did not accept the appli- or degrading treatment. However, Article 5 §4 cant’s argument that a heavier the Court was conscious of the penalty was retroactively imposed shortcomings in the procedure cur- The Court held unanimously that on him since, in view of the sub- rently in place and noted the recent the complaint under Article 5 §4 fell stantive provisions of the Criminal steps taken by the government for outside the scope of its examina- Code, it could not be said that at the the introduction of reforms. tion. relevant time the penalty of a life The Court further found that, al- sentence could clearly be taken to though the change in the applicable Article 7 have amounted to 20 years’ impris- legislation and consequent frustra- onment. tion of his expectations of release Quality of the law Concerning the change in prison must have caused the applicant The Court noted that the legal basis law, the Court observed that the ap- some anxiety, it did not consider for the applicant’s conviction and plicant, as a life prisoner, no longer that, in the circumstances, it at- sentence was the criminal law appli- had a right to have his sentence re- tained the level of severity required cable at the material time and that mitted. That matter related to the to fall within the scope of Article 3. his sentence corresponded to that execution of the sentence as It could not be said that the appli- prescribed in the relevant provi- opposed to the “penalty” imposed cant could justifiably harbour sions of the criminal code. It then on him, which remained that of life genuine expectations that he would examined whether domestic law at imprisonment. be released in November 2002. the material time determining what Apart from the clear sentence the “penalty” of life imprisonment Although the changes in prison leg- passed by the assize court in 1989, actually entailed satisfied the re- islation and in the conditions of the relevant changes in domestic quirements of accessibility and release might have rendered the ap- law happened within a period of ap- foreseeability. plicant’s imprisonment effectively proximately four years (1992-1996), Although at the time the applicant harsher, those changes could not be about six years before the release committed the offence it was clearly construed as imposing a heavier date given by the prison authorities provided by the Criminal Code that “penalty” than that imposed by the to the applicant came up. There- the offence of premeditated murder trial court. Issues relating to release fore, any feelings of hope on the carried the penalty of life imprison- policies, the manner of their imple- part of the applicant linked to the ment, it was equally clear that both mentation and the reasoning prospect of early release had to have the executive and the administra- behind them were part of criminal diminished as it became clear, with tive authorities were working on the policy to be determined at national the changes in domestic law, that he premise that that penalty was tanta- level. Accordingly, there had been would be serving the life sentence mount to 20 years’ imprisonment. no violation of Article 7 concerning passed on him by the assize court. The prison authorities were apply- the alleged retrospective imposition It was true that a life sentence such ing the prison regulations, based on of a heavier penalty with regard to as the one imposed on and served the Prison Discipline Law the applicant’s sentence and the by the applicant without a (Cap. 286), under which all prison- changes in prison law exempting minimum term necessarily entailed ers, including life prisoners, were el- life prisoners from the possibility of anxiety and uncertainty related to igible for remission of their remission of their sentence.

8 Grand Chamber judgments Council of Europe European Court of Human Rights

Article 14 for the remainder of the applicant’s to other prisoners who were not life. The Court concluded, particu- serving life sentences, given the Concerning the alleged discrimina- larly bearing in mind the wide nature of a life sentence. tion between the applicant and variety of factors taken into account other life prisoners released since in the exercise of the president’s dis- The Court concluded, therefore, 1993, the Court observed that the cretionary powers, such as the that there had not been a violation life prisoners referred to were all re- nature of the offence and the pub- of Article 14 in conjunction with Ar- leased following the commutation lic’s confidence in the criminal ticles 3, 5 and 7. and remission of their sentences by justice system, it could not be said the president of the republic in the Judge Bratza expressed a concurring that the exercise of that discretion exercise of his wide prerogative and opinion; Judge Tulkens joined by gave rise to an issue under discretionary power under Judges Cabral Barreto, Fura- Article 14. Article 53 (4) of the constitution, Sandström and Spielmann ex- which was applied on a case-to-case Concerning the alleged discrimina- pressed a partly dissenting opinion; basis. Furthermore, in the appli- tion between the applicant, as a life Judge Loucaides joined by Judge cant’s case, Limassol Assize Court prisoner, and other prisoners, the Jočienė expressed a partly dissent- had expressly addressed the proper Court considered that the applicant ing opinion, and Judge Borrego interpretation of a life sentence and could not claim to be in an analo- Borrego expressed a partly dissent- passed a sentence of imprisonment gous or relevantly similar position ing opinion.

D.H. and others v. the Czech Republic

Article 14 (read in con- Judgment of 13 November 2007. Concerns: assignation of applicants to special schools as a result of junction with Article 2 of Protocol No. 1): violation their Roma origin.

Facts and complaints ulation. Their appeal was dismissed (Article 36 §2 of the Convention and on 20 October 1999. Rule 44 §2). The applicants, 18 Czech nationals The application was lodged with the of Roma origin who were born A Grand Chamber hearing took European Court of Human Rights between 1985 and 1991 and live in place in public in the Human Rights on 18 April 2000 and declared partly the Ostrava region (Czech Repub- Building, Strasbourg, on 17 January admissible on 1 March 2005 follow- lic), alleged that, as a result of their 2007. Roma origin, they were assigned to ing a hearing before a Chamber. special schools. The applicants complained that, on Between 1996 and 1999 they were account of their Roma origin, they Decision of the Court placed in special schools (zvláštní had suffered discrimination in the školy) for children with learning enjoyment of their right to educa- tion. Article 14 read in conjunction difficulties who were unable to with Article 2 of follow the ordinary school curricu- On 7 February 2006 the Chamber lum. Under the law, the decision to held by six votes to one that there Protocol No. 1 place a child in a special school was had been no violation of Article 14 taken by the head teacher on the of the Convention, read in conjunc- The chamber had held that there basis of the results of tests to tion with Article 2 of Protocol No. 1. had been no violation of Article 14 of the Convention, read in conjunc- measure the child’s intellectual ca- On 5 May 2006 the applicants re- tion with Article 2 of Protocol No 1. pacity carried out in an educational quested that the case be referred to In its view, the government had es- psychology centre, and required the the Grand Chamber under tablished that the system of special consent of the child’s legal repre- Article 43 (referral to the Grand schools in the Czech Republic had sentative. Chamber) and on 3 July 2006 the not been introduced solely to cater Fourteen of the applicants sought a panel of the Grand Chamber ac- for Roma children and that consid- review of their situation by the cepted that request. erable efforts had been made in Ostrava Education Authority The applicants and the government those schools to help certain cate- (školský úřad) on the grounds that each filed written observations on gories of pupils to acquire a basic the tests were unreliable and their the merits. In addition, third-party education. In that connection, the parents had not been sufficiently comments were received from chamber had observed that the informed of the consequences of various non-governmental organi- rules governing children’s place- giving consent. The authority found sations, namely the International ment in special schools did not refer that the placements had been made Step by Step Association, the Roma to the pupils’ ethnic origin, but in accordance with the statutory Education Fund and the European pursued the legitimate aim of rules. Early Childhood Research Associa- adapting the education system to Tweve of the applicants appealed to tion; Interights and Human Rights the needs, aptitudes and disabilities the constitutional court. They Watch; Minority Rights Group In- of the children. argued that their placement in ternational, the European Network special schools amounted to a Against Racism and the European The Grand Chamber began by general practice that had resulted in Roma Information Office; and the noting that as a result of their tur- segregation and racial discrimina- Fédération internationale des ligues bulent history and constant uproot- tion through the coexistence of two des droits de l’Homme (Interna- ing the Roma had become a specific autonomous educational systems, tional Federation for Human Rights type of disadvantaged and vulnera- namely special schools for the – FIDH), each of which had been ble minority. They therefore re- Roma and “ordinary” primary given leave by the president to in- quired special protection, including schools for the majority of the pop- tervene in the written procedure in the sphere of education.

D.H. and others v. the Czech Republic 9 Human rights information bulletin, No. 73 Council of Europe

Presumption of indirect tion for children with special aspects of the situation and the con- discrimination educational needs. However, it sequences of giving their consent. shared the disquiet of the other In any event, in view of the funda- The applicants maintained that by Council of Europe institutions who mental importance of the prohibi- being placed in special schools they had expressed concerns about the tion of racial discrimination, the had, without objective and reasona- more basic curriculum followed in Grand Chamber considered that no ble justification, been treated less these schools and, in particular, the waiver of the right not to be sub- favourably than non-Roma children segregation the system caused. jected to racial discrimination could in a comparable situation. In As regards the assessments, it was be accepted, as it would be counter support of that claim they had sub- common ground that all the chil- to an important public interest. mitted statistical data based on in- dren examined had sat the same In its conclusion, as was apparent formation provided by head tests, irrespective of their ethnic from the documentation produced teachers that showed that more origin. The Czech authorities had by ECRI and the report of the Com- than half the pupils in special themselves acknowledged in 1999 missioner for Human Rights of the schools in Ostrava were from the that “Romany children with average Council of Europe, the Czech Re- Roma community. or above-average intellect” were public was not alone in having en- The Court noted that in the reports often placed in schools on the basis countered difficulties in providing they had submitted in accordance of the results of psychological tests schooling for Roma children: other with the Framework Convention for and that the tests were conceived European states had had similar dif- the Protection of National Minori- for the majority population and did ficulties. The Court was pleased to ties, the Czech authorities had ac- not take Roma specifics into con- note that, unlike some countries, cepted that in 1999 Roma pupils sideration. the Czech Republic had sought to made up between 80% and 90% of The Court considered that there tackle the problem. However, while the total number of pupils in some was a danger that the tests were recognising the efforts the Czech special schools and that in 2004 biased and that the results were not authorities had made to ensure that “large numbers” of Roma children analysed in the light of the particu- Roma children received schooling were still being placed in special larities and special characteristics of and the difficulties they had been schools. Furthermore, according to the Roma children who sat them. In confronted with, the Court was not a report published by ECRI (Euro- that connection, it observed, satisfied that the difference in treat- pean Commission against Racism amongst other things, that ECRI ment between Roma children and and Intolerance) in 2000, Roma had noted that the channelling of non-Roma children was objectively children were “vastly overrepre- Roma children to special schools for and reasonably justified and that sented” in special schools. those with learning difficulties was there existed a reasonable relation- The Court observed that, even if the reportedly often “quasi-automatic” ship of proportionality between the exact percentage of Roma children and needed to be examined to means used and the aim pursued. In in special schools at the relevant ensure that any testing used was that connection, it noted with inter- time remained difficult to establish, “fair” and that the true abilities of est that new legislation in the Czech their number was disproportion- each child were “properly evalu- Republic had abolished special ately high and Roma pupils formed ated” while the Council of Europe schools and provided for children a majority of the pupils in special Commissioner for Human Rights with special educational needs, in- schools. had reported that Roma children cluding socially disadvantaged chil- The evidence submitted by the ap- were frequently placed in classes for dren, to be educated in ordinary plicants could be regarded as suffi- children with special needs “with- schools. ciently reliable and significant to out an adequate psychological or Since it had been established that give rise to a strong presumption of pedagogical assessment, the real the relevant Czech legislation at the indirect discrimination so that the criteria clearly being their ethnic or- relevant time had had a dispropor- burden of proof shifted to the gov- igin”. In those circumstances, the tionately prejudicial effect on the ernment to show that the difference results of the tests could not serve Roma community, the applicants as in the impact of the legislation was as justification for the impugned members of that community had the result of objective factors unre- difference in treatment. necessarily suffered the same dis- lated to ethnic origin. As for parental consent, which the criminatory treatment. Conse- quently, there had been a violation Objective and reasonable Czech Government had considered to be the decisive factor, the Court of Article 14 of the Convention, read justification was not satisfied that the parents of in conjunction with Article 2 of Pro- The Court accepted that the Czech the Roma children, who were tocol No. 1. Republic’s decision to retain the members of a disadvantaged com- Judges Zupančič, Jungwiert, special-school system had been mo- munity and often poorly educated, Borrego Borrego and Šikuta ex- tivated by the desire to find a solu- were capable of weighing up all the pressed dissenting opinions.

Stoll v. Switzerland

Judgment of 10 December 2007. Concerns: compensation due to Holocaust victims for unclaimed Article 10 (no violation) assets.

Facts and complaints The case concerns the sentencing of lating to the strategy to be adopted the applicant to payment of a fine by the Swiss Government in the ne- Martin Stoll, a Swiss national who for having disclosed in the press a gotiations between, among others, lives in Zurich (Switzerland), is a confidential report by the Swiss the World Jewish Congress and journalist. ambassador to the United States re- Swiss banks on the subject of com-

10 Grand Chamber judgments Council of Europe European Court of Human Rights

pensation due to Holocaust victims The application was lodged with the an interest in publication of the ar- for unclaimed assets deposited in European Court of Human Rights ticles. Swiss bank accounts. on 14 May 2001 and declared admis- As to the interests which the Swiss sible on 3 May 2005. In December 1996 Carlo Jagmetti, authorities sought to protect, the who was then Swiss ambassador to In its Chamber judgment of 25 April Court considered that it was vital to the United States, drew up a “strat- 2006 the Court held, by four votes diplomatic services and the smooth egy paper”, classified as “confiden- to three, that there had been a vio- functioning of international rela- tial”, in the course of negotiations lation of Article 10. At the request of tions for diplomats to be able to ex- between, among others, the World the Swiss Government, the case was change confidential or secret Jewish Congress and Swiss banks referred to the Grand Chamber information. However, the confi- concerning compensation due to under Article 43 (referral to the dentiality of diplomatic reports Holocaust victims for unclaimed Grand Chamber). could not be protected at any price; assets deposited in Swiss bank ac- in that connection, the content of The Court granted the French and counts. the report and the potential threat Slovakian Governments leave to posed by its publication had to be The strategy paper was sent to the take part in the proceedings as taken into account. person in charge of the matter at third-party interveners, in accord- the Federal Department of Foreign ance with Article 36 §2 of the Con- In the applicant’s case the Court Affairs in Berne. Copies were sent to vention (third party intervention) considered that the disclosure at 19 other persons in the Swiss Gov- and Rule 61 §3 of the Rules of Court. that point in time of the extracts ernment and the federal authorities from the ambassador’s report had A public hearing was held on 7 Feb- and to the Swiss diplomatic mis- been liable to have negative reper- ruary 2007. sions in Tel Aviv, New York, London, cussions on the smooth progress of Paris and Bonn. The applicant ob- the negotiations in which Switzer- tained a copy, probably as a result of Decision of the Court land was engaged, on account not a breach of official secrecy by a just of the ambassador’s remarks person whose identity remains un- Article 10 themselves but of the way in which known. they had been presented by the ap- The Court considered that the ap- On 26 January 1997 the Zurich plicant. Hence the disclosure – plicant’s conviction amounted to Sunday newspaper the Sonntags- albeit partial – of the ambassador’s “interference” with the exercise of Zeitung published, among other report had been capable of under- his right to freedom of expression. things, two articles by the applicant mining the climate of discretion The interference was provided for under the headings “Ambassador necessary to the successful conduct by the Swiss Criminal Code and had Jagmetti insults the Jews” and “The of diplomatic relations in general pursued the legitimate aim of pre- ambassador in bathrobe and climb- and of having negative repercus- venting the “disclosure of informa- ing boots puts his foot in it”. The sions on the negotiations being tion received in confidence”. next day the Zurich daily the Tages- conducted by Switzerland in partic- Anzeiger reproduced extensive ex- The main question to be examined ular. The Court therefore concluded tracts from the strategy paper; sub- by the Court, therefore, was that, given that they had been pub- sequently, the newspaper the whether the interference in ques- lished at a particularly delicate Nouveau Quotidien also published tion had been “necessary in a demo- juncture, Mr Stoll’s articles had extracts from the report. cratic society”. In that connection been liable to cause considerable On 22 January 1999 the Zurich Dis- the Court reiterated at the outset damage to the interests of the Swiss trict Court sentenced the applicant that Article 10 was applicable to the authorities. dissemination by journalists of con- to a fine of 800 Swiss francs (ap- As to the applicant’s conduct, the fidential or secret information. proximately 476 euros) for publish- Court took the view that, as a jour- ing “secret official deliberations” The Court noted that the issue of nalist, he could not have been within the meaning of Article 293 of unclaimed assets had not only in- unaware that disclosure of the the Criminal Code. The appeals volved substantial financial inter- report was punishable under the lodged by the applicant were dis- ests, but had also had a significant Criminal Code. It further consid- missed at final instance by the moral dimension which meant that ered that the content of the appli- Federal Court on 5 December 2000. it was of interest even to the wider cant’s articles had been clearly The Swiss Press Council, to which international community. Conse- reductive and truncated and the vo- the case had been referred in the quently, in assessing whether the cabulary used had tended to suggest meantime by the Swiss Federal measure taken by the Swiss author- that the ambassador’s remarks had Council, accepted that publication ities had been necessary, the Court been anti-Semitic. Hence, the appli- had been legitimate given the im- would take account of how the cant had, in capricious fashion, portance of the public debate con- public interests at stake had been started a rumour which had un- cerning the assets of Holocaust weighed up: the interest of readers doubtedly contributed to the am- victims. However, in an opinion in being informed on a topical issue bassador’s resignation and which dated 4 March 1997, it found that by and the interest of the authorities in related directly to one of the very thus shortening the analysis and ensuring a positive and satisfactory phenomena at the root of the un- failing to place the report suffi- outcome to the diplomatic negotia- claimed assets issue, namely the ciently in context, the applicant had tions being conducted. atrocities committed against the Jewish community during the irresponsibly made the ambassa- The Court took the view that the Second World War. The Court reit- dor’s remarks appear sensational applicant’s articles had been erated the need to deal firmly with and shocking. capable of contributing to the allegations and/or insinuations of The applicant submitted that his public debate on the unclaimed that nature. conviction for publishing “secret of- assets, which were the subject of ficial deliberations” had infringed lively discussion in Switzerland at The Court noted that the way in his right to freedom of expression. the time. The public therefore had which the impugned articles had

Stoll v. Switzerland 11 Human rights information bulletin, No. 73 Council of Europe been edited, with sensationalist plicant’s chief intention had not sidered that the fine imposed on headings, seemed hardly fitting for been to inform the public on a topic the applicant had not been dispro- a subject as important and serious of general interest but to make Am- portionate to the aim pursued. as that of the unclaimed funds. It bassador Jagmetti’s report the Accordingly, the Court held that also observed the inaccurate nature subject of needless scandal. The there had been no violation of of the articles, which were liable to Court took the view that the trun- Article 10. mislead readers. cated and reductive form of the ar- Judge Ziemele expressed a concur- In these circumstances, and bearing ticles in question, which was liable ring opinion and Judge Zagrebelsky, in mind that one of the articles had to mislead the reader as to the am- joined by Judges Lorenzen, Fura- been placed on the front page of a bassador’s personality and abilities, Sandström, Jaeger and Popović, ex- Swiss weekly newspaper with a large had considerably detracted from pressed a dissenting opinion. circulation, the Court shared the the importance of their contribu- opinion of the Swiss Government tion to the public debate protected and the Press Council that the ap- by Article 10. Lastly, the Court con-

Saadi v. the United Kingdom

Judgment of 29 January 2008. Concerns: detention in a special facility for asylum seekers Article 5 §1 (no violation); Article 5 §2 (violation) Facts and complaints and was subsequently granted Article 43 (referral to the Grand asylum on 14 January 2003. Chamber) and on 11 December 2006 The applicant, Shayan Baram Saadi, The applicant, together with three the panel of the Grand Chamber ac- is an Iraqi Kurd, born in 1976, who other Kurdish Iraqi detainees who cepted that request. now lives and works as a doctor in had been held at Oakington, Third-party comments were re- London. applied for permission for judicial ceived jointly from the Centre for The case concerned his detention review of their detention claiming Advice on Individual Rights in for seven days in a special facility that it was unlawful under domestic Europe (the AIRE Centre), the Eu- for asylum-seekers. law and under Article 5 (right to ropean Council on Refugees and Mr Saadi, a member of the Iraqi liberty and security) of the Euro- Exiles (ECRE) and Liberty and from Workers’ Communist Party, fled pean Convention on Human Rights. the United Nations High Commis- from Iraq when, in the course of his Both the Court of Appeal and the sioner for Refugees (UNHCR), duties as a hospital doctor, he House of Lords held that the deten- which had been given leave by the treated and facilitated the escape of tion was lawful in domestic law. In President to intervene in the three fellow party members who connection with Article 5 they each written procedure, under Article 36 had been injured in an attack. held that the detention was to §2 of the Convention and Rule 44 §2 decide whether to authorise entry of the Rules of Court. He arrived at London Heathrow and that the detention did not have Airport on 30 December 2000 A public hearing took place in the to be “necessary” to be compatible where he immediately claimed Human Rights Building, Strasbourg, with Article 5. They further main- asylum. The immigration officer on 16 May 2007. tained that the detention was “to contacted Oakington Reception prevent unauthorised entry” and Centre, a new detention facility for Decision of the Court that the measure was not dispro- asylum seekers considered unlikely portionate. The House of Lords also to abscond and to whom a “fast- Article 5 §1 found that, given the high number track” procedure could be applied. of interviews every day (up to 150), The Court noted that, while the As there was no available space at detention was necessary for the general rule set out in Article 5 §1 Oakington, the applicant was ini- speed and efficiency of the system. was that everyone had the right to liberty, Article 5 §1 (f) provided an tially granted “temporary admis- The applicant complained about his exception, permitting states to sion”. He was taken into detention detention at Oakington and about control the liberty of aliens in an at Oakington on 2 January 2001. the fact that he was given no immigration context. States were The applicant was initially given a reasons for it. He relied on Article 5 permitted to detain would-be im- standard form which did not make §§1 and 2 of the Convention. migrants who had applied for per- clear that the reason for his deten- The application was lodged with the mission to enter, whether by way of tion was that the fast-track proce- European Court of Human Rights asylum or not. dure was being applied to his on 18 April 2003 and declared ad- The Grand Chamber considered asylum claim. missible on 27 September 2005. that, until a state had “authorised” On 5 January 2001 the applicant’s In its Chamber judgment of 11 July entry, it was “unauthorised” and the representative telephoned the Chief 2006, the Court held, by four votes detention of a person who wished Immigration Officer and was told to three, that there had been no vi- to enter the country concerned and that the reason for the detention olation of Article 5 §1, and, unani- who needed but did not yet have au- was that the applicant was an Iraqi mously, that there had been a thorisation to do so, could be to who met the criteria to be detained violation of Article 5 §2 and that it “prevent his effecting an unauthor- at Oakington. was not necessary to consider sepa- ised entry”. It did not accept that, as The applicant’s asylum claim was rately the applicant’s complaint soon as an asylum seeker had sur- initially refused on 8 January 2001 under Article 14 (prohibition of dis- rendered himself to the immigra- and he was formally refused leave to crimination). tion authorities, he was seeking to enter the United Kingdom. He was On 10 October 2006 the applicant effect an “authorised” entry, with released the next day. He appealed requested that the case be referred the result that detention could not against the Home Office decision to the Grand Chamber under be justified under the first part of

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Article 5 §1 (f). Article 5 §1 (f) did Court recalled that the purpose of been refused at first instance. That not permit detention only of a the Oakington detention regime period of detention could not be person shown to be trying to evade was to ensure the speedy resolution said to have exceeded that reasona- entry restrictions. Such an interpre- of some 13 000 of the approximately bly required for the purpose pur- tation would be too narrow and was 84 000 asylum applications made in sued. also inconsistent with the United Kingdom per year at that The Court concluded that, given the Conclusion No. 44 of the Executive time. In order to achieve that objec- difficult administrative problems Committee of the United Nations tive it was necessary to schedule up with which the United Kingdom High Commissioner for Refugees’ to 150 interviews a day and even was confronted during the period in Programme, the UNHCR’s Guide- small delays might disrupt the question, with an escalating flow of lines and a recommendation on the entire programme. The applicant huge numbers of asylum-seekers, it subject from the Council of Eu- was selected for detention on the was not incompatible with Article 5 rope’s Committee of Ministers, all of basis that his case was suited for §1(f) to detain the applicant for which envisaged the detention of fast-track processing. seven days in suitable conditions to asylum seekers in certain circum- In those circumstances, the Court enable his claim to asylum to be stances, for example while identity found that the national authorities processed speedily. Moreover, the checks were taking place or when acted in good faith in detaining the provision of a more efficient system elements on which an asylum claim applicant. Indeed the policy behind of determining large numbers of were based had to be determined. the creation of the Oakington asylum claims rendered unneces- However, such detention had to be regime was generally to benefit sary recourse to a broader and more compatible with the overall purpose asylum-seekers, by dealing with extensive use of detention powers. of Article 5, to safeguard the right to their claims expeditiously. Moreo- It followed that there had been no liberty and ensure that no-one ver, since the purpose of the depri- violation of Article 5 §1. should be dispossessed of his or her vation of liberty was to enable the liberty in an arbitrary fashion. authorities quickly and efficiently Article 5 §2 To avoid being branded as arbitrary, to determine the applicant’s claim detention had to be carried out in to asylum, his detention was closely The Grand Chamber noted that the good faith; it had to be closely con- connected to the purpose of pre- first time the applicant was told of nected to the purpose of preventing venting unauthorised entry. the real reason for his detention was unauthorised entry of the person to The Court further noted that the through his representative on the country; the place and condi- Oakington Centre was specifically 5 January 2001, when the applicant tions of detention had to be appro- adapted to hold asylum seekers and had already been in detention for 76 priate, bearing in mind that the that various facilities, for recrea- hours. Assuming that the giving of measure was applicable not to those tion, religious observance, medical oral reasons to a representative met who had committed criminal of- care and, importantly, legal assist- the requirements of Article 5 §2, the fences but to aliens who, often ance, were provided. While there Grand Chamber agreed with the fearing for their lives, had fled from was, undoubtedly, an interference Chamber that a delay of 76 hours in their own country; and the length of with the applicant’s liberty and providing reasons for detention was the detention should not exceed comfort, he made no complaint re- not compatible with the require- that reasonably required for the garding the conditions in which he ment that such reasons be given purpose pursued. was held. “promptly”, in violation of Article 5 §2. The Court observed that the na- Finally, as regards the length of the tional courts at three levels had detention, the Court recalled that Judges Rozakis, Tulkens, Kovler, found that the applicant’s detention the applicant was held for seven Hajiyev, Spielmann and Hirvelä ex- had a basis in national law, and the days at Oakington, and released the pressed a joint partly dissenting applicant did not disagree. The day after his claim to asylum had opinion.

Saadi v. Italy

Article 3 (violation) Judgment of 28 February 2008. Concerns: possible deportation of the applicant to Tunisia

Facts and complaints In October 2002 Mr Saadi, who was tenced him to four years and six suspected, among other things, of months’ imprisonment. It acquitted The applicant, Nassim Saadi, is a international terrorism, was ar- the applicant of aiding and abetting Tunisian national who was born in rested and placed in pretrial deten- clandestine immigration. Both the 1974 and lives in Milan (Italy). He is tion. He was accused of conspiracy prosecution and the applicant ap- the father of an eight-year-old child to commit acts of violence (includ- pealed. On the date of the adoption whose mother is an Italian national. ing attacks with explosive devices) of the Grand Chamber’s judgment The application concerns the possi- in states other than Italy with the the proceedings were pending in ble deportation of the applicant to intention of arousing widespread the Italian courts. Tunisia, where he claims to have terror; he was also accused of falsi- On 11 May 2005 a military court in been sentenced in 2005, in his ab- fying documents and receiving Tunis sentenced the applicant in his sence, to 20 years’ imprisonment for stolen goods. membership of a terrorist organisa- absence to 20 years’ imprisonment for membership of a terrorist organ- tion acting abroad in peacetime and On 9 May 2005 Milan Assize Court isation acting abroad in peacetime for incitement to terrorism. reclassified the offence of interna- and for incitement to terrorism. In December 2001 the applicant was tional terrorism, amending it to issued with an Italian residence criminal conspiracy. It found Mr Mr Saadi was released on 4 August permit, valid until October 2002, Saadi guilty of that offence and of 2006. On 8 August 2006, however, “for family reasons”. forgery and receiving, and sen- the minister of the interior ordered

Saadi v. Italy 13 Human rights information bulletin, No. 73 Council of Europe him to be deported to Tunisia, ap- The application was lodged with the threat to national security, the plying the provisions of the law of European Court of Human Rights Court observed that such an ap- 27 July 2005 on “urgent measures to on 14 September 2006. proach was not compatible with the combat international terrorism”. The applicant alleged that enforce- absolute nature of Article 3. It The minister observed that “it was ment of his deportation to Tunisia amounted to asserting that, in the apparent from the documents in would expose him to the risk of absence of evidence meeting a the file” that the applicant had being subjected to torture or higher standard, protection of na- played an “active role” in an organi- inhuman and degrading treatment tional security justified accepting sation responsible for providing lo- contrary to Article 3 of the Conven- more readily a risk of ill-treatment gistical and financial support to tion (prohibition of torture and for the individual. The Court reaf- persons belonging to fundamental- inhuman or degrading treatment). firmed that for a forcible expulsion ist Islamist cells in Italy and abroad. Relying on Article 6 (right to a fair to be in breach of the Convention it The applicant was therefore placed trial), he further complained of a was necessary – and sufficient – for in the Milan temporary holding flagrant denial of justice he had al- substantial grounds to have been centre pending his deportation. legedly suffered in Tunisia on shown for believing that there was a account of being convicted in his risk that the applicant would be Mr Saadi made a request for politi- absence and by a military court. subjected to ill-treatment in the re- cal asylum, which was rejected on Under Article 8 (right to respect for ceiving country. 14 September 2006. On the same private and family life), he alleged The Court referred to reports by day he lodged an application with that his deportation to Tunisia Amnesty International and Human the European Court of Human would deprive his partner and his Rights Watch which described a Rights. Under Rule 39 of the Rules son of his presence and support. disturbing situation in Tunisia and of Court (interim measures), the Lastly, relying on Article 1 of Proto- which were corroborated by a Court asked the Italian Government col No. 7 (procedural safeguards re- report from the US State Depart- to stay the applicant’s expulsion lating to expulsion of aliens), he ment. These reports mentioned nu- until further notice. complained that his expulsion was merous and regular cases of torture neither necessary to protect public inflicted on persons accused under The maximum time allowed for the order nor grounded on reasons of the 2003 Prevention of Terrorism applicant’s detention with a view to national security. Act. The practices reported – said to expulsion expired on 7 October On 29 March 2007 the Chamber to be often inflicted on persons in 2006 and he was released on that police custody – included hanging date. However, on 6 October 2006 a which the case had been allocated relinquished jurisdiction in favour from the ceiling, threats of rape, ad- new deportation order had been ministration of electric shocks, im- issued against him to France (the of the Grand Chamber, under Article 30 of the Convention. mersion of the head in water, country from which he had arrived beatings and cigarette burns. It was in Italy), with the result that he was The President granted leave to the reported that allegations of torture immediately taken back to the United Kingdom Government to in- and ill-treatment were not investi- Milan temporary holding centre. tervene in the proceedings as a third gated by the competent Tunisian The applicant applied for a resi- party. authorities, that they refused to dence permit and requested refugee A public hearing took place in the follow up complaints and that they status, without success. Human Rights Building, Strasbourg, regularly used confessions obtained on 11 July 2007. under duress to secure convictions. On 3 November 2006 the applicant The Court did not doubt the relia- was released, as fresh information bility of those reports and noted made it clear that it would not be Decision of the Court that the Italian Government had possible to deport him to France. Article 3 not adduced any evidence capable of rebutting such assertions. On 29 May 2007 the Italian embassy The Court observed that it could The Court noted that in Italy in Tunis asked the Tunisian Govern- not underestimate the danger of ment to provide a copy of the Mr Saadi had been accused of inter- terrorism and noted that states were national terrorism and that his con- alleged judgment convicting the ap- facing considerable difficulties in plicant in Tunisia, as well as diplo- viction in Tunisia had been protecting their communities from confirmed by an Amnesty Interna- matic assurances that, if the terrorist violence. However, that applicant were to be deported to tional statement in June 2007. The should not call into question the applicant therefore belonged to the Tunisia, he would not be subjected absolute nature of Article 3. to treatment contrary to Article 3 of group at risk of ill-treatment. That the European Convention on Contrary to the argument of the being so, the Court considered that Human Rights, that he would have United Kingdom as third-party in- there were substantial grounds for the right to have the proceedings re- tervener, supported by the Italian believing that there was a real risk opened and that he would receive a Government, the Court considered that the applicant would be sub- fair trial. In reply, the Tunisian Min- that it was not possible to weigh the jected to treatment contrary to ister of Foreign Affairs twice sent a risk that a person might be sub- Article 3 if he were to be deported to note verbale to the Italian Embassy jected to ill-treatment against his Tunisia. in July 2007 stating that he “ac- dangerousness to the community if The Court further noted that the cepted the transfer to Tunisia of Tu- not sent back. The prospect that he Tunisian authorities had not pro- nisians imprisoned abroad once might pose a serious threat to the vided the diplomatic assurances re- their identity had been confirmed”, community did not diminish in any quested by the Italian Government that Tunisian legislation guaran- way the risk that he might suffer in May 2007. Referring to the notes teed prisoners’ rights and that harm if deported. verbales from the Tunisian Ministry Tunisia had acceded to “the relevant As regards the arguments that such of Foreign Affairs, the Court em- international treaties and conven- a risk had to be established by solid phasised that the existence of do- tions”. evidence where an individual was a mestic laws and accession to

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treaties were not sufficient to cant would be protected against the would comply with its Grand ensure adequate protection against risk of treatment. Chamber judgment, the Court con- the risk of ill-treatment where, as in Consequently, the Court found that sidered that it was not necessary to the applicant’s case, reliable sources the decision to deport Mr Saadi to decide the question whether, in the had reported practices manifestly Tunisia would breach Article 3 if it event of expulsion to Tunisia, there contrary to the principles of the were enforced. would also be violations of Article 6, Convention. Furthermore, even if Article 8 and Article 1 of Protocol the Tunisian authorities had given Article 6, Article 8 and the diplomatic assurances, that No. 7. would not have absolved the Court Article 1 of Protocol No. 7 from the obligation to examine Recalling its finding concerning Judge Zupančič expressed a concur- whether such assurances provided a Article 3 and having no reason to ring opinion, as did Judge Myjer, sufficient guarantee that the appli- doubt that the Italian Government joined by Judge Zagrebelsky.

E.B. v. France

Article 14 (read in con- Judgment of 22 January 2008. Concerns: refusal by the French authorities to grant the applicant’s junction with Article 8): violation request to adopt a child, allegedly on account of her sexual orientation.

Facts and complaints had not been based on her choice of Chamber relinquished jurisdiction lifestyle and had not therefore given in favour of the Grand Chamber. E.B. is a French national aged 45. rise to a breach of Articles 8 (right A public hearing took place in the She is a nursery school teacher and to respect for private and family Human Rights building, Strasbourg, has been living with another life) and 14 (prohibition of discrimi- on 14 March 2007. woman, R., who is a psychologist, nation) of the European Conven- since 1990. tion on Human Rights. Decision of the Court The application concerns the The applicant appealed on points of refusal by the French authorities to law, arguing in particular that her grant the applicant’s request to application to adopt had been re- Admissibility adopt a child, allegedly on account jected on account of her sexual ori- The Court reiterated at the outset of her sexual orientation. entation. In a judgment of 5 June that whilst French law and Article 8 2002, the Conseil d’Etat dismissed In February 1998 the applicant did not guarantee either the right to E.B.’s appeal on the ground, among applied to the Jura Social Services found a family or the right to adopt other things, that the Administra- Department for authorisation to (which neither party contested), the tive Court of Appeal had not based adopt a child. During the adoption concept of “private life” within the its decision on a position of princi- procedure she mentioned her ho- meaning of Article 8 was a broad ple regarding the applicant’s sexual mosexuality and her stable relation- one which encompassed a certain orientation, but had had regard to ship with R. number of rights. the needs and interests of an On the basis of the reports drawn adopted child. With regard to an allegation of dis- up by a social worker and a psychol- crimination on grounds of the ap- ogist, the adoption board made a The application was lodged with the plicant’s homosexuality, the Court recommendation in November 1998 European Court of Human Rights also reiterated that Article 14 (pro- that the application be rejected. on 2 December 2002. hibition of discrimination) had no Shortly afterwards the president of Relying on Article 14 of the Conven- independent existence. The appli- the council for the département of tion, taken in conjunction with cation of Article 14 did not necessar- the Jura gave a decision refusing au- Article 8, the applicant alleged that ily presuppose the violation of thorisation. Following an appeal by at every stage of her application for Article 8. It was sufficient for the the applicant, the president of the authorisation to adopt she had suf- facts of the case to fall “within the council for the département con- fered discriminatory treatment that ambit” of that article. This was the firmed his refusal in March 1999. had been based on her sexual orien- case here since French legislation The reasons given for both deci- tation and had interfered with her expressly granted single persons the sions were the lack of “identifica- right to respect for her private life. right to apply for authorisation to tional points of reference” due to The FIDH (Fédération Internation- adopt and established a procedure the absence of a paternal image or ale des ligues des Droits de to that end. reference and the ambiguous l’Homme), the ILGA-Europe (the nature of the applicant’s partner’s European Region of the Interna- Consequently, the Court considered commitment to the adoption plan. tional Lesbian and Gay Associa- that the state, which had gone beyond its obligations under The applicant lodged an application tion), the APGL (Association des Article 8 in creating such a right, with Besançon Administrative Parents et futurs Parents Gays et could not then take discriminatory Court, which set both decisions of Lesbiens) and the BAAF (British measures when it came to applying the president of the council for the Agencies for Adoption and Foster- it. The applicant alleged that, in the département aside on 24 February ing) were given leave to take part in exercise of her right under the do- 2000. The département of the Jura the proceedings before the mestic law, she had been discrimi- appealed against the judgment. Chamber as third party interveners nated against on the ground of her Nancy Administrative Court of under Article 36 §2 of the Conven- sexual orientation, which was a Appeal set aside the Administrative tion (third party intervention) and concept covered by Article 14. Court’s judgment on 21 December Rule 44 §2 of the Rules of Court. 2000. It held that the refusal to On 19 September 2006, under Article 14 of the Convention, taken grant the applicant authorisation Article 30 of the Convention, the in conjunction with Article 8, was

E.B. v. France 15 Human rights information bulletin, No. 73 Council of Europe therefore applicable in the present that ground at domestic level had cant’s sexual orientation this case. not been leading to discrimination. amounted to discrimination under Regarding the systematic reference the Convention. In any event, par- Article 14 in conjunction with to the lack of a “paternal referent”, ticularly convincing and weighty Article 8 the Court disputed not the desira- reasons had to be made out in order bility of addressing the issue, but to justify such a difference in treat- After drawing a parallel with a pre- the importance attached to it by the ment regarding rights falling within vious case, the Court pointed out domestic authorities in the context the ambit of Article 8. There were that the domestic administrative of adoption by a single person. no such reasons in the present case authorities, and then the courts because French law allowed single that heard the applicant’s appeal, The fact that the applicant’s homo- persons to adopt a child, thereby had based their decision to reject sexuality had featured to such an extent in the reasoning of the do- opening up the possibility of adop- her application for authorisation to tion by a single homosexual. Fur- adopt on two main grounds: the mestic authorities was significant thermore, the Civil Code remained lack of a paternal referent in the ap- despite the fact that the courts had considered that the refusal to grant silent as to the necessity of a refer- plicant’s household, and the atti- ent of the other sex and, moreover, tude of the applicant’s declared her authorisation had not been the applicant presented – in the partner. based on that. Besides their consid- erations regarding the applicant’s terms of the judgment of the The Court found that the attitude of “lifestyle”, they had above all con- Conseil d’Etat – “undoubted per- the applicant’s partner was not firmed the decision of the president sonal qualities and an aptitude for without interest or relevance in as- of the council for the département bringing up children”. sessing the application. In the recommending that the application Court’s view, it was legitimate for for authorisation be refused and The Court noted that the appli- the authorities to ensure that all giving as reasons the two impugned cant’s situation had been assessed safeguards were in place before a grounds: the wording of certain overall by the domestic authorities, child was taken into a family, partic- opinions revealed that the appli- who had not based their decision on ularly where not one but two adults cant’s homosexuality or, at other one ground alone but on “all” the were found to be living in the times, her status as a single person factors, and considered that the two household. In the Court’s opinion, had been a determining factor in re- main grounds had to be examined that ground had nothing to do with fusing her authorisation whereas concurrently. Consequently, the il- any consideration relating to the the law made express provision for legitimacy of one of the grounds applicant’s sexual orientation. the right of single persons to apply (lack of a paternal referent) had the With regard to the ground relied on for authorisation to adopt. effect of contaminating the entire by the domestic authorities relating decision. to the lack of a paternal referent in The Court considered that the refer- the household, the Court consid- ence to the applicant’s homosexual- The Court concluded that the deci- ered that this did not necessarily ity had been, if not explicit, at least sion refusing the applicant authori- raise a problem in itself. However, in implicit; the influence of her homo- sation was incompatible with the the present case it was permissible sexuality on the assessment of her Convention and that there had been to question the merits of such a application had not only been es- a violation of Article 14 of the Con- ground as the application had been tablished but had also been a deci- vention, taken in conjunction with made by a single person and not a sive factor leading to the decision to Article 8. couple. In the Court’s view, that refuse her authorisation to adopt. ground might therefore have led to Accordingly, it considered that the Judges Lorenzen and Jebens ex- an arbitrary refusal and have served applicant had suffered a difference pressed a concurring opinion, and as a pretext for rejecting the appli- in treatment. If the reasons ad- Judges Costa, Türmen, Ugrekhe- cant’s application on grounds of her vanced for such a difference in lidze, Jočienė, as well as Judges homosexuality, and the government treatment were based solely on con- Zupančič, Loucaides and Mularoni, had been unable to prove that use of siderations regarding the appli- expressed dissenting opinions.

Ramanauskas v. Lithuania

Judgment of 5 February 2008. Concerns: unfair conviction following alleged incitement by the state Article 6 §1 (violation) authorities to commit a criminal offence.

Facts and complaints cant a bribe of 3 000 US dollars On an unspecified date AZ in- (USD) in return for a promise to formed the STT that the applicant Kęstas Ramanauskas is a Lithuanian had agreed to accept a bribe and, on national who was born in 1966 and obtain the acquittal of a third 27 January 1999, the deputy prose- lives in Kaišiadorys (Lithuania). He person. The applicant having ini- cutor general authorised VS and AZ worked as a prosecutor in the tially refused, AZ subsequently reit- to simulate criminal acts of bribery. Kaišiadorys region. erated the offer a number of times before the applicant agreed. The applicant submitted that in late On 28 January 1999 the applicant 1998 and early 1999 he had been ap- accepted USD 1 500 from AZ. On The government submitted that VS proached by AZ, a person previ- 11 February 1999 AZ paid the appli- ously unknown to him, through VS, and AZ had approached the appli- cant a further USD 1 000. a private acquaintance. AZ – who, in cant and negotiated the conditions fact, worked for a special anti-cor- for the bribe on their own initiative, The same day, the prosecutor ruption police unit of the Ministry before the authorities were in- general brought a criminal case of Interior (STT) – offered the appli- formed. against the applicant for accepting a

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bribe, under the then Article 282 of simply arguing that, although carry- they should have established in par- the Criminal Code. ing out police duties, the officers ticular the reasons why the opera- On 29 August 2000 the applicant were acting “in a private capacity”. It tion had been mounted, the extent was convicted of accepting a bribe was particularly important that the of the police’s involvement in the of USD 2 500 from AZ and sen- authorities should have assumed re- offence and the nature of any incite- tenced to 19 months and six days’ sponsibility, as the initial phase of ment or pressure to which the ap- imprisonment. VS was not exam- the operation took place in the plicant had been subjected. That ined during the trial. absence of any legal framework or was especially important having The judgment was upheld on judicial authorisation. Further- regard to the fact that VS was never more, by authorising VS and AZ to called as a witness in the case since appeal and the applicant’s cassation simulate acts of bribery and by ex- he could not be traced. The appli- appeal was dismissed by the supreme court which found that the empting AZ from all criminal re- cant should have had the opportu- sponsibility, the authorities nity to state his case on each of evidence corroborated the appli- legitimised the preliminary phase those points. cant’s guilt, which he himself had ex post facto and made use of its re- acknowledged. Once his guilt had However, the domestic authorities sults. been established, the question of denied that there had been any whether there had been any outside Moreover, no satisfactory explana- police incitement and took no steps influence on his intention to tion had been provided as to what at judicial level to carry out a commit the offence had become ir- reasons or personal motives could serious examination of the appli- relevant. have led AZ to approach the appli- cant’s allegations. More specifically, On 31 January 2002 the applicant cant on his own initiative without they did not make any attempt to was released on licence and, in bringing the matter to the attention clarify the role played by the protag- January 2003, his conviction was ex- of his superiors, or why he was not onists in the applicant’s case, punged. prosecuted for his acts during that despite the fact that the applicant’s preliminary phase. On that point, The application was lodged with the conviction was based on the evi- the government simply referred to European Court of Human Rights dence obtained as a result of the the fact that all the relevant docu- on 17 August 2001 and declared ad- police incitement of which he com- ments had been destroyed. missible on 26 April 2005. plained. The actions complained of by the The applicant complained that he applicant were therefore attributa- The Court noted the supreme was incited to commit a criminal ble to the authorities. court’s finding that, once the appli- offence by the state authorities and cant’s guilt had been established, The actions of VS and AZ also went that, as a result, he was unfairly con- the question whether there had beyond the mere passive investiga- victed of bribery. He further alleged been any outside influence on his tion of existing criminal activity: that the principle of equality of intention to commit the offence there was no evidence that the ap- arms and the rights of the defence became irrelevant. However, a con- plicant had committed any offences had been infringed in that, during fession to an offence committed as a beforehand, in particular corrup- the trial, neither the courts nor the result of incitement could not erad- tion-related offences; all the meet- parties had had the opportunity to icate either the incitement or its ef- ings between the applicant and AZ examine VS. He relied on Article 6. fects. took place on the latter’s initiative; On 19 September 2006 the Chamber and, the applicant seemed to have The Court concluded that the to which the case had originally been subjected to blatant prompt- actions of AZ and VS had the effect been assigned relinquished jurisdic- ing on the part of VS and AZ to of inciting the applicant to commit tion in favour of the Grand perform criminal acts, although the offence of which he was con- Chamber under Article 30 of the there was no objective evidence to victed and that there was no indica- Convention. suggest that he had been intending tion that the offence would have A public hearing took place in the to engage in such activity. been committed without their in- Human Rights building, Strasbourg The Court observed that, through- tervention. There had therefore on 28 March 2007. out the proceedings, the applicant been a violation of Article 6 §1. Decision of the Court maintained that he had been incited to commit the offence. Ac- Article 6 §3 (d) cordingly, the domestic authorities Article 6 §1 and courts should at the very least The Court did not consider it neces- The Court considered that the na- have undertaken a thorough exami- sary to carry out a separate exami- tional authorities could not be ex- nation of whether the prosecuting nation under Article 6 §3 (d) of the empted from their responsibility for authorities had incited the commis- applicant’s complaint that the pro- the actions of police officers by sion of a criminal act. To that end, ceedings were unfair.

Guja v. Moldova

Article 10 (violation) Judgment of 12 February 2008. Concerns: the applicant’s dismissal from his job for giving a news- paper two letters received by the prosecutor general’s office.

Facts and complaints ment of the Moldovan Prosecutor received by the prosecutor general’s General’s Office. office. The applicant is Iacob Guja who was The case concerned his dismissal In January 2003 the President of born in 1970 and lives in Chişinău. for giving a newspaper two letters Moldova, Vladimir Voronin, visited He was Head of the Press Depart- the Centre for Fighting Economic

Guja v. Moldova 17 Human rights information bulletin, No. 73 Council of Europe

Crime and Corruption where there On 14 February 2003 the applicant eral’s Office for divulging two docu- was a discussion on the problem of admitted having given the two ments which disclosed interference public officials placing pressure on letters to the newspaper, stating by a high-ranking politician in law-enforcement bodies about that he had acted in line with the pending criminal proceedings. He pending criminal proceedings. The president’s anti-corruption drive, in relied on Article 10. president stressed the need to fight order to create a positive image of corruption and called on law en- the prosecutor’s office, and that the Decision of the Court forcement officers to disregard letters were not confidential. undue pressure from public offi- Prosecutor I.D., who was suspected Article 10 cials. The president’s statement was of having given the applicant the widely reported in the media. letters, was later dismissed. The Court noted that neither A few days later the applicant gave On 17 February 2003 the applicant Moldovan legislation nor the inter- the national newspaper Jurnal de informed the prosecutor general nal regulations of the prosecutor Chişinău two letters received by the that the letters had not been ob- general’s office contained any provi- prosecutor general’s office, neither tained from I.D. He also expressed sion concerning the reporting of ir- of which bore any sign of being con- concern about I.D.’s dismissal. regularities by employees. It appeared, therefore, that there was fidential. On 3 March 2003 the applicant was no authority other than the appli- The first – sent to the prosecutor dismissed on the grounds, among cant’s superiors to which he could eneral by the Deputy Speaker of other things, that the letters had have reported his concerns and no Parliament, Vadim Mişin, on 21 June been secret and that he had failed to prescribed procedure for reporting 2002 – was written on the Parlia- consult the heads of other depart- such matters. It also appeared that ment’s official headed paper. It ments of the prosecutor general’s the disclosure concerned the asked the prosecutor general to “get office before handing over the let- conduct of a Deputy Speaker of Par- personally involved in the case” of ters, in breach of the press depart- liament, who was a high-ranking of- four police officers charged with ment’s internal regulations. ficial, and that, despite having been illegal detention and ill-treatment On 21 March 2003 the applicant aware of the situation for some six of detainees. Mr Mişin stated that brought an unsuccessful civil action months, the prosecutor general had the police officers, who had asked against the Prosecutor General’s shown no sign of having any inten- for protection from prosecution, Office seeking reinstatement, argu- tion to respond, instead giving the were part of one of the “best teams” ing, among other things, that the impression that he had succumbed in the ministry of internal affairs letters were not classified as secret to political pressure. The Court (the ministry) and were being pre- and that he had not been obliged to therefore considered that, in the cir- vented from working normally “as a consult other heads of department. cumstances of the applicant’s case, result of the efforts of the employ- The newspaper unsuccessfully re- external reporting, even to a news- ees of the prosecutor general’s of- quested that a criminal investiga- paper, could be justified. fice”. He also asked in that context tion be brought into the alleged whether the “Vice Prosecutor interference by Mr Mişin with an Having examined the note which General fights crime or the police”. ongoing criminal investigation. Mr Mişin wrote to the Prosecutor General, the Court could not accept The second letter – from a vice- On 14 March 2003 the paper pub- that it was intended to do no more minister in the Ministry, to a deputy lished a follow-up article, entitled than transmit the police officers’ prosecutor general – was written on “Mişin has launched a crackdown letter to a competent body. More- official Ministry headed paper. It re- on prosecutors”. It stated that the over, in view of the context and of vealed that one of the police officers prosecutor general had bowed to the language employed by mentioned in the first letter had pressure from Mr Mişin to identify Mr Mişin, it could not be excluded previously been sentenced only to a and punish those responsible for that the effect of the note was to put fine (which he was exempted from disclosing his note to the press and pressure on the prosecutor general’s paying) and that he had been re- that the prosecutor general’s office office, irrespective of the inclusion employed by the Ministry, despite had been guided by Mr Mişin and of the statement that the case was being convicted, among other advisers to the president concern- to be “examined in strict compli- things, of illegal detention endan- ing who should be employed or dis- ance with the law”. Against that gering life or health or causing missed. In the previous year alone, background, the Court noted that physical suffering and abuse of 30 experienced prosecutors had the President of Moldova had cam- power accompanied by acts of vio- been dismissed from Chişinău Pros- paigned against the practice of in- lence, use of firearm or torture. ecutor’s Office. The article also gave terference by politicians with the an account of the applicant’s dis- On 31 January 2003 the Jurnal de criminal-justice system and that the missal as a result of pressure from Chişinău published an article enti- Moldovan media had widely Mr Mişin, and reported that the tled: “Vadim Mişin intimidates the covered the subject. It also noted prosecuto general’s office had re- prosecutors” describing the presi- the reports of international non- ceived numerous letters from Mr dent’s anti-corruption drive and governmental organisations (the Mişin and other high-ranking noting that abuse of power had International Commission of Ju- public officials in connection with become a widespread problem in rists, Freedom House, and the Open ongoing criminal investigations. Moldova. The paper cited Mr Justice Initiative) which had ex- Mişin’s apparent attempts to The application was lodged with the pressed concern about the break- protect the four police officers as an European Court of Human Rights down of separation of powers and example, printing photographs of on 30 March 2004. On 20 February the lack of judicial independence in the two letters. 2007 the Chamber relinquished ju- Moldova. The Court found that the The applicant was subsequently risdiction in favour of the Grand letters disclosed by the applicant asked by the prosecutor general to Chamber. had a bearing on issues such as the explain how the two letters had The applicant complained about his separation of powers, improper come to be published by the press. dismissal from the Prosecutor Gen- conduct by a high-ranking politi-

18 Grand Chamber judgments Council of Europe European Court of Human Rights

cian and the government’s attitude voicing their opinions on such mat- ing any misconduct. In view of the towards police brutality. There was ters. media coverage of the applicant’s no doubt that those were very im- The Court found no reason to case, the sanction could also have portant matters in a democratic believe that the applicant was moti- had a chilling effect on other civil society which the public had a legit- vated by a desire for personal ad- servants and employees. imate interest in being informed vantage, held any personal about and which fell within the grievance against his employer or Given the importance of the right to scope of political debate. Mr Mişin, or that there was any freedom of expression on matters of The Court further noted that it was other ulterior motive for his ac- general interest, of the right of civil common ground that the letters tions. He had therefore acted in servants and other employees to disclosed by the applicant to the good faith, in accordance with the report illegal conduct and wrongdo- Jurnal de Chişinău were genuine. statements by the president on the ing at their place of work, the duties fight against corruption and The Court considered that the and responsibilities of employees trading in influence, in order to public interest in the provision of towards their employers and the information about undue pressure provide a positive image of the pros- right of employers to manage their and wrongdoing within the Prose- ecutor general’s office. staff, and having weighed up the cutor’s Office was so important in a Finally, the Court noted that the other different interests involved in democratic society that it out- heaviest sanction possible (dis- weighed the interest in maintaining missal) was imposed on the appli- the applicant’s case, the Court con- public confidence in the Prosecutor cant, which not only had negative cluded that the interference with General’s Office. Open discussion of repercussions on the applicant’s the applicant’s right to freedom of topics of public concern was essen- career, but could also have had a expression, in particular his right to tial to democracy and it was of great serious chilling effect on other em- impart information, was not “neces- importance for members of the ployees from the prosecutor’s office sary in a democratic society”, in vio- public not to be discouraged from and discourage them from report- lation of Article 10.

Arvanitaki-Roboti and others v. Greece, Kakamoukas and others v. Greece

Article 6 §1 (violation) Judgment of 15 February 2008. The cases both concern the excessive length of the proceedings to which the applicants had been parties.

Facts and complaints nika (Mikra district), for the encumbrance on the disputed prop- purpose of building an airport. This erties. Arvanitaki-Roboti and others area now falls within the jurisdic- On 30 September 1998 Kalamaria tion of Kalamaria Town Council. An Town Council lodged a third-party The 91 applicants, all Greek nation- expropriation award was fixed, but appeal against the judgments by the als, are members of the National the state refused to pay it. The Supreme Administrative Court, an Health System (Εθνικό Σύστημα airport was ultimately constructed appeal which was declared inadmis- Υγείας) in their capacity as doctors, elsewhere. sible on 28 November 2001. and are employed by the public hos- pital “O Evangelismos”. In 1967 the state went ahead with In 1999 the minister for the environ- expropriation of the disputed plots ment and public works modified In April 1994 they brought proceed- of land, with a view to building the urban development plan of Ka- ings before the administrative housing for workers. As the deci- lamaria municipality in order to courts seeking to have set aside the sion did not fulfil a public-interest designate the land in question as hospital’s refusal to pay them an al- aim, however, it was revoked in the site for a sports and leisure lowance for overtime work, set at 1/ 1972. That same year the land in centre. On 9 September 1999 the 65th of their basic salary. On 16 De- question was designated for the applicants or their ascendants cember 1999 Athens Administrative construction of a sports centre and, applied to the Supreme Administra- Court of Appeal set aside the dis- in 1987, the Salonika prefect modi- tive Court seeking to have the puted administrative decision. fied the development plan above-mentioned decision set Ruling on an appeal by the hospital, (ρυμοτομικό σχέδιο) for the area, aside. Those proceedings are still the Supreme Administrative Court, which he designated as a “green pending before the Supreme Ad- in a judgment of 6 February 2003, area” and “sports and leisure zone”. ministrative Court. overturned the administrative The application in Arvanitaki- The applicants or their descendants court’s decision on the ground that Roboti and others was lodged with brought proceedings before the ad- the ministerial decree on which the the European Court of Human ministrative courts seeking to have applicants based their claim had Rights on 4 August 2003 and the ap- the encumbrance affecting their not been published in due form and plication in Kakamoukas and others land removed. By three judgments, was therefore without foundation. was lodged on 17 October 2002. delivered on 20 October 1997, the Kakamoukas and others Supreme Administrative Court The applicants in both cases com- granted their request, noting in par- plained, in particular, of the exces- The applicants are 58 Greek nation- ticular that, having failed for a long sive length of the proceedings to als. time to proceed with the expropria- which they had been parties. On 7 April 1925 the Greek State ex- tion of the land in question in fur- In a chamber judgment of 18 May propriated an area of land measur- therance of the project provided for 2006, in Arvanitaki-Roboti and ing 534 892 square metres, located in the development plan, the au- others, the Court held, unani- on the outskirts of the town of Salo- thorities were duty bound to lift the mously, that there had been a viola-

Arvanitaki-Roboti and others v. Greece, Kakamoukas and others v. Greece 19 Human rights information bulletin, No. 73 Council of Europe tion of Article 6 §1 on account of the to have considered the appeal On the other hand, the Court noted, length of the proceedings and de- lodged by Kalmaria Town Council in particular, that the 91 applicants clared inadmissible the applicants’ on 30 September 1998. The Court in the case of Arvanitaki-Roboti and complaints of unfairness and of a considered that those proceedings others and the 58 applicants in the breach of their right of property. In could have had a direct impact on case of Kakamoukas and others had respect of non-pecuniary damage, the applicants’ right to freely enjoy acted together in bringing the pro- the Court awarded each applicant their property. ceedings in issue before the admin- EUR 7 000 except for one, to whom Consequently, the Grand Chamber istrative courts in order to challenge it awarded EUR 6 895. found, for the reasons set out by the the lawfulness of administrative de- In a Chamber judgment of 22 June Chamber, that the length of the dis- cisions. In consequence, it consid- 2006, in Kakamoukas and others, puted proceedings has been exces- ered that the shared objective of the the Court held, unanimously, that sive and that there had therefore impugned proceedings in the two there had been a violation of been a violation of Article 6 §1. cases was such as to alleviate the in- Article 6 §1 on account of the length convenience and uncertainty expe- of the proceedings and decided, by Article 41 rienced on account of their delay. five votes to two, to award each ap- The Court considered that where plicant EUR 5 000 or EUR 8 000, as Taking these factors into account, common proceedings had been applicable, in respect of the non- the Court considered that the ex- found to be excessively long, it had pecuniary damage sustained, as this tension of the impugned proceed- to take account of the manner in damage was not sufficiently com- ings beyond a “reasonable time” had which the number of participants in pensated by the finding of a viola- undoubtedly caused the applicants such proceedings could have influ- tion of the Convention. non-pecuniary damage which enced the level of distress, incon- Both cases were referred to the would justify an award. It also took venience and uncertainty affecting Grand Chamber at the Greek Gov- each of them. It noted that, of all the into consideration the number of ernment’s request under Article 43 elements that could be taken into applicants, the nature of the viola- (referral to the Grand Chamber). consideration in assessing the non- tion found and the need to deter- A public hearing took place in the pecuniary damage sustained in the mine the amounts in such a way Human Rights Building, Strasbourg, instant case, some entailed a reduc- that the overall sum was compatible on 7 March 2007. tion, others an increase, in the with its case-law and was reasona- amount to be awarded. ble in the light of what was at stake Decision of the Court in the proceedings in question. On the one hand, the Court ob- served that although the financial Accordingly, in respect of the non- Article 6 §1 stakes for the applicants in the im- pecuniary damage sustained, the pugned proceedings were merely Arvanitaki-Roboti and others Court awarded EUR 3 500 to each implicit, rather than direct, it was The Court noted that the Greek nevertheless the case that the appli- applicant in the case of Arvanitaki- Government’s request that the case cants in Arvanitaki-Roboti and Roboti and others, and EUR 2 500 or be referred to the Grand Chamber others had already brought actions EUR 4 000, as applicable, to the ap- concerned only the Chamber’s con- for damages before the administra- plicants in Kakamoukas and others. clusions as to the application of tive courts, seeking the payment of Article 41 of the Convention. It held, sums varying between EUR 15 000 With regard to the costs and ex- however, that the complaint alleg- and 20 000. The same was true in penses in the case of Arvanitaki- ing a violation of Article 6 §1 of the the case of Kakamoukas and others, Roboti and others, and for the Convention must also be examined. where, according to the applicants’ reasons already indicated by the For the reasons set out by the own evaluation, the value of their Chamber, the Court awarded the Chamber, the Grand Chamber property which remained blocked applicants EUR 1 500 jointly. found that there had been a viola- amounted to about tion of Article 6 §1. EUR 24 000 000. The Court there- In each case, Judge Bratza, joined by fore considered that the protracted Judge Rozakis, expressed a concur- Kakamoukas and others nature of the proceedings was such ring opinion, and Judges Zupančič The Greek Government argued that as to exacerbate the prejudice sus- and Zagrebelsky expressed a partly the Chamber’s judgment ought not tained by them. dissenting opinion.

Dickson v. the United Kingdom

Judgment of 4 December 2007. Concerns: refusal of access to artificial insemination facilities. Article 8 (violation), Article 12 Facts and complaints minimum period to be served) of 15 release date and Mrs Dickson’s age. years. He has no children. In 1999 The secretary of state refused their The applicants, Kirk and Lorraine he met Lorraine via a prison pen-pal application, explaining his general Dickson, are British nationals who network while she was also impris- policy, according to which requests were born in 1972 and 1958 respec- oned. In 2001 they married. Mrs for artificial insemination by pris- tively. Mr Dickson is in Dovergate Dickson already had three children oners could only be granted in “ex- Prison, Uttoxeter (United Kingdom) from other relationships. ceptional circumstances”. The and Mrs Dickson lives in Hull The couple requested artificial in- grounds given for refusal were: that (United Kingdom). semination facilities to enable them the applicants’ relationship had In 1994 Mr Dickson was convicted to have a child together, arguing never been tested in the normal en- of murder and sentenced to life im- that it would not otherwise be pos- vironment of daily life; that insuffi- prisonment with a tariff (the sible, given Mr Dickson’s earliest cient provision had been made for

20 Grand Chamber judgments Council of Europe European Court of Human Rights

the welfare of any child that might couple since 1999 and married since Ms Dickson was at liberty and could be conceived; that mother and child 2001, of having a child together, have taken care of any child con- would have had only a limited given Ms Dickson’s age and ceived until her husband was re- support network; and, that the Mr Dickson’s release date. The leased. child’s father would not be present Grand Chamber considered it The Grand Chamber reiterated that for an important part of her or his evident that the matter was of vital childhood. It was also considered importance to the applicants. 30 of the states which had ratified the European Convention on that there would be legitimate While the inability to beget a child Human Rights allowed for conjugal public concern that the punitive might be a consequence of impris- and deterrent elements of Mr Dick- visits for prisoners (subject to a onment, it was not an inevitable variety of different restrictions), a son’s sentence were being circum- one, it not being suggested that the measure which could be seen as ob- vented if he were allowed to father a grant of artificial insemination fa- child by artificial insemination viating the need for the authorities cilities would have involved any se- to provide additional facilities for while in prison. curity issues or imposed any artificial insemination. However, significant administrative or finan- The applicants appealed unsuccess- while the Court had expressed its fully. cial demands on the state. approval for the evolution in several The application was lodged with the The Grand Chamber then consid- European countries towards conju- Court on 23 November 2004. ered whether public confidence in gal visits, states were not required to the prison system would be under- The applicants complained about make provision for such visits. mined if the punitive and deterrent the refusal of access to artificial in- elements of a sentence would be cir- The Grand Chamber considered semination facilities, relying on cumvented by allowing prisoners that the policy which applied to the Article 8 (right to respect for private guilty of certain serious offences to applicants excluded any real weigh- and family life) and Article 12 (right conceive children. Like the Cham- ing of the competing individual and to marry and found a family) of the ber, it reiterated that there was no public interests, and prevented the Convention. place under the Convention system, required assessment of the propor- In its Chamber judgment of 18 April where tolerance and broad- tionality of a restriction, in any indi- 2006, the Court declared the case mindedness were the acknowledged vidual case. In particular, it placed admissible and held, by four votes hallmarks of a democratic society, an inordinately high “exceptional- to three, that there had been no vi- for automatic forfeiture of rights by ity” burden on the applicants when olation of Articles 8 or 12. prisoners based purely on what requesting artificial insemination On 13 September 2006 the panel of might offend public opinion. How- facilities. In addition, there was no the Grand Chamber granted the ap- ever, it could accept, as did the evidence that, when fixing the plicants’ request to have their case Chamber, that the maintaining of policy, the secretary of state sought referred to the Grand Chamber public confidence in the penal to weigh the relevant competing in- under Article 43 (referral to the system had a role to play in the de- dividual and public interests or Grand Chamber). A hearing before velopment of penal policy. However, assess the proportionality of the re- the Grand Chamber was held on 10 and while accepting that punish- striction. Further, since the policy January 2007. ment remained one of the aims of was not embodied in primary legis- imprisonment, it underlined the ev- lation, the various competing inter- Decision of the Court olution in European penal policy ests were never weighed, nor were towards the increasing relative im- issues of proportionality ever as- Article 8 portance of the rehabilitative aim of sessed, by parliament. imprisonment, particularly towards The Court therefore found that a The Grand Chamber considered the end of a long prison sentence. that Article 8 was applicable to the fair balance had not been struck The Grand Chamber was prepared applicants’ complaints in that the between the competing public and to accept as legitimate, that the au- refusal of artificial insemination fa- private interests involved, in viola- thorities, when developing and ap- cilities concerned their private and tion of Article 8. plying the policy in question, family lives, which included the should concern themselves, as a right to respect for their decision to matter of principle, with the welfare Article 12 become genetic parents. of any child: conception of a child The Grand Chamber considered, as The core issue was whether a fair was the very object of the exercise. did the Chamber, that no separate balance had been struck between Moreover, the state had obligations issue arose under Article 12. the competing public and private to ensure the effective protection of interests involved. children. However, that could not Judge Sir Nicolas Bratza expressed a As to the applicants’ interests, it was go so far as to prevent parents from concurring opinion, and Judges accepted domestically that artificial attempting to conceive a child in Wildhaber, Zupančič, Jungwiert, insemination remained the only circumstances like those in the ap- Gyulumyan and Myjer expressed a realistic hope of the applicants, a plicants’ case, especially as joint dissenting opinion.

Dickson v. the United Kingdom 21 Human rights information bulletin, No. 73 Council of Europe

Selected Chamber judgments

Mocarska v. Poland

Judgment of 6 November 2007. Concerns: alleged unlawful detention in a psychiatric hospital. Article 5 §1 (violation)

Facts and complaints she be placed in a psychiatric hospi- June 2006 admissible and the re- tal. On 25 October 2005 Warsaw mainder of the application inadmis- The applicant, Bożena Mocarska, is District Court discontinued the sible. The Court found that an a Polish national who was born in proceedings against her on the eight-month delay in the admission 1965 and lives in Pruszków (Po- ground that she could not be held of the applicant to a psychiatric land). She shared a flat with her criminally responsible. However, hospital and the resulting delay in sister and her sister’s husband. She she remained in the detention her psychiatric treatment could not suffers from psychiatric problems. centre waiting for a placement in be regarded as acceptable. In the In May 2005, following a knife Pruszków Psychiatric Hospital to be circumstances of the applicant’s attack on her sister, Ms Mocarska recommended by a commission and case, a reasonable balance had not was arrested and charged with do- a place to become available there. been struck between her right to mestic violence and admitted to She was finally transferred on liberty and the risk that she repre- Warsaw Detention Centre. Her pre- 30 June 2006 to that hospital. sented to her family and others. Ac- trial detention was extended on nu- Relying on Article 5 §1 (right to cordingly, the Court held merous occasions on the ground liberty and security), Ms Mocarska unanimously that there had been a that there was a reasonable suspi- complained that she had been un- violation of Article 5 §1 concerning cion that she had committed the lawfully detained in an ordinary her detention between 25 October offence and risked re-offending. In remand centre for eight months 2005 and 30 June 2006. The appli- August 2005 the applicant’s lawyer pending her admission to a psychi- cant made no claim for just satisfac- requested her release on account of atric hospital. tion and her claim for costs and her psychiatric condition and the expenses was dismissed. fact that her prolonged detention had seriously affected her health. In Decision of the Court September 2005, she was diagnosed The Court declared the applicant’s as suffering from a delusional disor- complaint concerning her deten- der and doctors recommended that tion from 25 October 2005 to 30

Khamidov v. Russia

Judgment of 15 November 2007. Concerns: occupation by the police of the applicant’s property; claims Articles 6 §1, 8 and 1 of Protocol No. 1 (viola- for compensation; length of proceedings. tions)

Facts and complaints At the relevant time, the Chechen 24 February 2001. Attempts to courts were inoperative so the ap- enforce that judgment were unsuc- The applicant, Khanbatay Ab- plicant could not bring legal pro- cessful: when the Tula police units ulkhanovich Khamidov, is a Russian ceedings. From November 1999 to moved out, other police units from national who was born in 1954 and December 2000 he did, however, Kaluga moved in and the applicant lives in the village of Bratskoye lodge numerous complaints with was prevented from entering his (Chechnya). state bodies, including the military, property by trenches, check-points Mr Khamidov and his brother, prosecutors and other law- and barbed wire. The police units Dzhabrail Abulkhanovich Khami- enforcement agencies, and admin- finally vacated the applicant’s prop- dov, own land in Bratskoye on istrative authorities, in which he erty on 14 June 2002. which they each have a house and sought eviction of the police units. In the meantime, the applicant on which their family business (a He mainly received replies to brought proceedings against the bakery) is located, including indus- inform him that his complaints had Russian Ministry of the Interior, trial buildings, a mill and storage fa- been forwarded on to other bodies. complaining that police units cilities. No effective measures were taken. refused to comply with the judg- In early October 1999 the Russian On 25 May 2000 a military com- ment of 14 February 2001. He Government launched a counter- mander of the Nadterechny Dis- further sought compensation for terrorist operation in the Chechen trict, at the applicant’s request, the damage caused to his property Republic and, fearing possible at- ordered the police units to ensure and for non-pecuniary damage in tacks, the applicant and his relatives that no damage would be caused to respect of the appalling conditions left the village. On 13 October 1999 the applicant’s property. in which he and his family had had police units from Tambov moved In January 2001, when the courts in to live in the refugee camp. In onto the applicant’s property. Chechnya became operational support of his claims he submitted The applicant and his family spent again, the applicant brought pro- evidence including documents the winter of 1999 to 2000 in tents ceedings in which he sought evic- which certified his title to the estate in a refugee camp in Znamenskoye tion of the police units. The and the value of its industrial equip- (Chechnya), where living condi- Nadterechny District Court of ment, a copy of the judgment of tions were very poor. The appli- Chechnya found in his favour in a 14 February 2001, copies from cant’s 19-month-old nephew died of judgment of 14 February 2001. That various public bodies acknowledg- pneumonia while at that camp. judgment came into force on ing the occupation, evaluation

22 Selected Chamber judgments Council of Europe European Court of Human Rights

reports confirming the damage to respect for his home and peaceful between October 1999 and January his property, bailiffs’ reports and es- enjoyment of his possessions. 2001 when the Chechen courts had timates for the repair work needed. The Court found that that interfer- been out of operation, of an oppor- On 23 January 2002 Zamoskvoret- ence had been unlawful. tunity to seek eviction of the police units. The Court therefore found skiy District Court of Moscow re- Concerning the period between jected the applicant’s claims for 13 October 1999 and 23 February that that had clearly constituted a limitation on the applicant’s right of compensation as groundless. It 2001, the Government had not sub- access to a court and held unani- found, in particular, that the appli- mitted any document which had cant had failed to provide sufficient specifically authorised the police mously that there had been a viola- tion of Article 6 §1. proof that the damage to his prop- units’ temporary occupation of the erty had been the fault of the Minis- applicant’s estate. The Court con- The Court held unanimously that try of the Interior. The applicant’s sidered that sections 13 and 21 of the there had been another violation of subsequent appeal and requests for Law on Suppression of Terrorism, Article 6 §1 on account of the non- supervisory review were also dis- relied on by the government, had enforcement for over 15 months of missed. not been a sufficient legal basis for the judgment of 14 February 2001 in The application was lodged with the such a drastic interference as occu- the applicant’s favour. European Court of Human Rights pation for a prolonged period of The Court also held unanimously on 28 June 2001 and declared partly time of an individual’s housing and that there had been a further two vi- admissible on 23 October 2006. property. In the period between 24 February olations of Article 6 §1 concerning Mr Khamidov complained, in par- the proceedings in 2002. Firstly, the 2001 and 14 June 2002, the interfer- ticular, that his family’s estate was domestic courts had only consid- occupied and damaged by federal ence was manifestly in breach of Russian law, given the judgment of ered the applicant’s compensation police and that he was unable to claim in respect of damage to his 14 February 2001. obtain compensation. He further property and had failed to examine The Court further considered that complained about his inability to his claims in respect of compensa- bring the eviction claim before a the damage caused to the appli- tion for occupation of his property cant’s estate had had no basis in do- court for a prolonged period of and for non-pecuniary damage. The mestic law: the government had not time, the delayed enforcement of courts had referred to the claims as the judgment in his favour, the un- submitted any decision, order or in- “groundless” but had given no ex- struction which had authorised the fairness of the proceedings for com- planation as to how they had come police units to cause any such pensation and the absence of to that conclusion. The applicant effective remedies. He relied on Ar- damage. Indeed, on 25 May 2000 a had therefore been denied access to military commander had issued an ticles 6, 8 and 13, and Article 1 of a court. Secondly, in those same order to preserve the applicant’s Protocol No. 1 (protection of prop- proceedings, the courts had consid- erty). property. ered that it had not been proven Accordingly, the Court held unani- that the applicant’s estate had been Decision of the Court mously that there had been a viola- occupied by police units, despite tion of Article 8 and Article 1 of abundant evidence to the contrary Article 8 and Article 1 of Protocol No. 1 as a result of the tem- and the findings in the judgment of porary occupation of the applicant’s Protocol No. 1 14 February 2001. In the Court’s estate by police units of the Russian view, the unreasonableness of that The Court found that the appli- Ministry of the Interior, and a conclusion was so striking that the cant’s house and that of his brother further violation of the same arti- decisions of the domestic courts in should be considered as his home. cles as a result of the damage caused 2002 could only be described as The applicant had provided the to his estate. grossly arbitrary. The applicant had Court with extensive evidence (cer- therefore been denied a fair hearing tificates and reports) to prove that Article 6 §1 concerning his claim for compensa- his estate had been damaged by The Court noted that it was clear tion in respect of damage caused to police units whereas the govern- under domestic law, notably his estate. ment had only submitted certain Article 119 of the Code of Civil Pro- unofficial written statements by cedure, that the applicant had only Article 13 police officers and a Bratskoye local been allowed to file his eviction councillor. The Court therefore claim in the place where his estate The Court observed that the appli- found that it had sufficient grounds was located, i.e. Chechnya. Further- cant’s complaints under Article 13 to consider it established that the more, the Russian authorities had were essentially the same as those applicant’s estate had been not made any effort to authorise the under Article 6 §1. Therefore, the damaged by police units and that applicant to file a claim in another Court did not consider it necessary there had therefore been an inter- region of Russia. The applicant had to examine the complaints under ference with the applicant’s right to therefore effectively been deprived, Article 13.

Galstyan v. Armenia

Articles 6 §1, 6 §3, 11 and Judgment of 15 November 2007. Concerns: applicant’s sentence to three days’ detention for taking 2 of Protocol No. 7 part in a demonstration held on Mother’s Day in April 2003.

Facts and complaints born in 1958 and lives in Yerevan Following the presidential elections (Armenia). in Armenia in February and March The applicant, Arsham Galstyan, is 2003, Mr Galstyan participated in a an Armenian national who was

Galstyan v. Armenia 23 Human rights information bulletin, No. 73 Council of Europe series of protest rallies in Yerevan ing. In reality there was no clerk and and location of the hearing in organised by the opposition. the hearing was not recorded. The support of his allegation. The case concerned his sentence to hearing lasted only about five There had therefore been no viola- three days’ detention for taking part minutes and was conducted in the tion of Article 6 §1 concerning the in a demonstration held on judge’s office. Only the judge and applicant’s right to a fair and public Mother’s Day in April 2003. This is applicant (with the accompanying hearing before an impartial tribu- the first in a series of cases dealing police officer) were present. nal. with the imposition of administra- On 14 April 2003 the applicant tive sanctions concerning participa- applied to a local human rights Article 6 §3 (b) tion in demonstrations or other NGO, “February 22nd”, complaining The Court considered that the mere minor offences in Armenia. that police officers had prompted fact that the applicant signed a him to sign a document refusing a On 7 April 2003, on his way home paper in which he stated that he did lawyer. The NGO’s request to have from the demonstration, which had not wish to have a lawyer did not criminal proceedings brought apparently been organised to mean that he did not need adequate against the police officers and judge protest against the government and time and facilities to prepare was rejected by the Kentron and the conduct of the elections and in- himself effectively for trial. Nor did Nork-Marash District Prosecutor. volved around 30 000 people the fact that the applicant did not (mostly women), he was arrested The application was lodged with the lodge any specific requests during for “obstructing traffic and behav- European Court of Human Rights the short pretrial period necessarily ing in an anti-social way at a dem- on 1 August 2003. imply that no further time was onstration” and taken to Yerevan Mr Galstyan complained that his needed for him to be able – in ade- Central District Police Station for sentence violated his right to quate conditions – to properly questioning. The applicant argued freedom of assembly and freedom assess the charge against him and that he and most of the other men of expression. He also maintained consider his defence. Nothing sug- present did not participate in the that he did not have a fair and gested that his signing of the record demonstration; they were there to public hearing before an impartial pursued any other purpose than to support and protect the women and tribunal, that he was not given time confirm that he was familiar with it prevent trouble breaking out. to prepare his defence and that he and aware of his rights and the At the police station he was charged was tricked into refusing legal as- charge against him. with “minor hooliganism” under sistance. The parties disagreed as regards the Article 172 of the Code of Adminis- He relied on Article 5 (right to exact length of the pretrial period trative Offences (CAO). The police liberty and security), Article 6 §1 but, in any event, it was evident that record was signed by the applicant. (right to a fair trial), Article 10 (free- that period was not longer than a He also certified that he had been dom of expression), Article 11 (free- few hours. The Court further noted made aware of his rights under dom of association and assembly) that, during that time, the applicant Article 267 of the CAO and added “I and Article 2 of Protocol No. 7 (right was either in transit to the court or do not wish to have a lawyer”. of appeal in criminal matters). was being held at the police station The applicant alleged that he ini- without contact with the outside tially refused to sign that record and Decision of the Court world. Furthermore, during his requested a lawyer, but that he had short stay at the police station, he been kept at the police station for Article 6 §1 was also questioned and searched. five-and-a-half hours, during which The Court doubted that the circum- time police officers pressurised him Concerning the fairness of the ap- stances in which the applicant’s to sign the record and to refuse legal plicant’s trial, the Court considered trial was conducted enabled him to assistance. At 11 p.m. that day he was that the fact that the only evidence familiarise himself properly with taken to a judge at Kentron and in the proceedings was the witness and to assess adequately the charge Nork-Marash District Court of Yer- testimony of an arresting police and evidence against him, and to evan, who examined the case. officer was not in itself contrary to develop a viable legal strategy for According to the government, the Article 6, because the applicant – his defence. The Court therefore applicant was kept at the police even if at a very brief hearing – was concluded that there had been a station for only two hours and taken able to make submissions in violation of Article 6 §3 taken to- to the judge at 7.30 p.m. The police defence of his position. Although gether with Article 6 §1. explained to him his right to have a none of the arresting police officers lawyer and the applicant signed the were called and examined in court, Article 6 §3 (c) record voluntarily, without objec- the applicant had made no such re- The Court noted that all the materi- tions. quest. als before it indicated that the ap- The judge, after a brief hearing, sen- Regarding the applicant’s allegation plicant expressly waived his right to tenced the applicant under that the trial judge was politically be represented by a lawyer both Article 172 of the CAO to three days’ biased, the Court noted that, al- before and during the court hear- administrative detention for “ob- though the period surrounding the ing. There was no evidence to struction of street traffic” and presidential election of 2003 was a support his allegation that he was “making a loud noise”. According to period of increased political sensi- “tricked” into refusing a lawyer. the court records, the hearing was tivity, it was not possible to con- Noting that the applicant was held in public with the participa- clude from that alone that the trial accused of a minor offence and the tion of the judge, a clerk and the ap- judge was personally biased. maximum possible sentence could plicant. The Court also considered that not have exceeded 15 days’ deten- The applicant alleged, and the gov- there was insufficient evidence to tion, mandatory legal representa- ernment did not explicitly dispute, conclude that the hearing in ques- tion was not required in the that the record of the hearing was tion was not held in public; the ap- interests of justice. Having con- drafted at some point after the hear- plicant cited only the alleged time cluded that it was the applicant’s

24 Selected Chamber judgments Council of Europe European Court of Human Rights

own choice not to have a lawyer, the ent from the police report that the tions, especially such severe ones, Court considered that the authori- street where the demonstration on those participating who had ties could not be held responsible took place was packed with people done nothing reprehensible, as in for the fact that he was not legally and the government did not dispute the applicant’s case. represented in the course of the ad- that the traffic had been suspended The Court therefore concluded that ministrative proceedings against by the traffic police prior to the the interference with the applicant’s him. There had therefore been no start of the demonstration. Neither right to freedom of peaceful assem- violation of Article 6 §§1 and 3 (c). did the authorities make any bly was not “necessary in a demo- attempt to disperse the participants cratic society”, in violation of on account of unlawful obstruction Article 11 Article 11. of traffic. It followed that the “ob- The Court observed that the inter- struction of street traffic”, of which ference with the applicant’s right of the applicant was found guilty, Article 2 of Protocol No. 7 freedom of association was pre- amounted to his physical presence scribed by law and pursued a legiti- The Court found that the review at a demonstration held on a street mate aim, the prevention of where traffic had already been sus- procedure prescribed by Article 294 disorder. of the CAO did not provide an indi- pended. As to the “loud noise” he vidual with a clear and accessible Concerning whether it was neces- had made, there was no suggestion right to appeal; it lacked any clearly- sary in a democratic society, the that it involved any obscenity or in- Court recalled that freedom to take citement to violence. The Court, defined procedure or time-limits or consistent application in practice. part in a peaceful assembly was of however, found it hard to imagine a There had therefore been a viola- such importance that a person huge political demonstration, at could not be subjected to a sanction which people expressed their opin- tion of Article 2 of Protocol No. 7. – even one at the lower end of the ion, not generating a certain scale of disciplinary penalties – for amount of noise. The Court con- Other articles participation in a demonstration cluded that the applicant was sanc- which had not been prohibited, so tioned merely for being present and The Court held unanimously that long as that person had not com- proactive at the demonstration in there was no need to examine the mitted a reprehensible act on such question. applicant’s complaint under Article 10 and his complaint under an occasion. The Court observed that the very Article 5 was declared inadmissible. The applicant was subjected to essence of the right to freedom of three days’ deprivation of liberty for peaceful assembly was impaired, Judges Fura-Sandström and “obstruction of street traffic” and where a state, while not prohibiting Zupančič expressed a joint dissent- “making a loud noise”. It was appar- a demonstration, imposed sanc- ing opinion.

Pfeifer v. Austria

Article 8 (violation) Judgment of 15 November 2007. Concerns: the need to strike a fair balance between the protection of freedom of expression and the right of the applicant to have his reputation safeguarded.

Facts and complaints In an article from June 2000, the plicant brought a second set of def- weekly Zur Zeit referred to amation proceedings. His action The applicant, Karl Pfeifer, is an Mr Pfeifer’s commentary, alleging was dismissed in August 2002, as Austrian national who lives in that it had unleashed a manhunt the appellate court held that the Vienna. He is a freelance journalist. which had eventually resulted in principles and considerations set From 1992 to 1995 he was the editor the death of the victim. The appli- out in its previous judgment of of the official magazine of the cant brought unsuccessful defama- October 2001 applied. Vienna Jewish community. tion proceedings against the The application was lodged with the publishing company that owned In February 1995 Mr Pfeifer pub- European Court of Human Rights Zur Zeit. While the first-instance lished a commentary criticising in on 7 April 2003. court had found that the statement harsh terms a professor who had Relying on Article 8 (right to was defamatory, in October 2001 written an article alleging that the respect for private and family life), the appellate court found that it was Jews had declared war on Germany Mr Pfeifer complained that the Aus- a value judgment which was not ex- in 1933, and which trivialised the trian courts failed to protect his rep- cessive. crimes of the Nazi regime. The pro- utation against defamatory fessor brought defamation proceed- Meanwhile, in February 2001 the statements made by the chief editor ings against the applicant, who was chief editor of Zur Zeit had ad- of Zur Zeit. ultimately acquitted in May 1998 dressed a letter to the subscribers when the courts found that his crit- asking them for financial support Decision of the Court icism constituted a value judgment and claiming that a group of anti- which had a sufficient factual basis. fascists was trying to damage the Article 8 weekly by means of disinformation In April 2000, criminal proceedings in the media and by instituting The Court held that a person’s right under the National Socialism Prohi- criminal proceedings and civil ac- to protection of his or her reputa- bition Act were brought against the tions. The letter stated again that tion was encompassed in Article 8 professor by the Public Prosecutor Karl Pfeifer and a number of other as being part of the right to respect on account of his article. He com- people were members of a “hunt- for private life. mitted suicide shortly before his ing” association which had chased The Court reiterated that state- trial. the professor to his death. The ap- ments that shock or offend the

Pfeifer v. Austria 25 Human rights information bulletin, No. 73 Council of Europe public or a particular person were applicant’s article and the profes- after, acted in such a manner or indeed protected by the right to sor’s death. By writing that, the with such an intention. Moreover, it freedom of expression under chief editor’s letter overstepped ac- had to be noted that the commen- Article 10 (freedom of expression). ceptable limits, because it in fact tary written by the applicant, for its However, the statement here at accused Mr Pfeifer of acts tanta- part, had not transgressed the limits issue went beyond that, claiming mount to criminal behaviour. of acceptable criticism. that the applicant had caused the Even if the statement were to be un- professor’s death by ultimately derstood as a value judgment, it The Court was therefore not con- driving him to commit suicide. Al- lacked a sufficient factual basis. The vinced that the reasons advanced by though it was undisputed that the use of the term member of a “hunt- the domestic courts for protecting applicant had written a critical ing” association implied that the ap- freedom of expression outweighed commentary on the professor’s plicant was acting in co-operation the right of the applicant to have his article in 1995 and that, years later, with others with the aim of perse- in 2000, the professor had been cuting and attacking the professor. reputation safeguarded. There had charged under the National Social- There was no indication, however, accordingly been a violation of ism Prohibition Act in relation to that Mr Pfeifer, who had merely Article 8. this article and had committed sui- written one article at the very be- cide, no proof had been offered for ginning of a series of events and had Judges Loucaides and Schäffer ex- the alleged causal link between the not taken any further action there- pressed dissenting opinions.

Driza v. Albania, Ramadhi and others v. Albania

Judgment of 13 November 2007. The cases concerned the non-enforcement of judgments and admin- Articles 6 §1, 13 and 1 of Protocol No. 1 (viola- istrative decisions in restitution of property cases. tions)

Facts and complaints which respectively annulled the ap- The applicants subsequently lodged plicant’s title over both plots of an application with Kavaja Land In both cases the applicants took land. He was also awarded compen- Commission, claiming property legal action to recover possession of sation which, to date, he has not re- rights in respect of a plot of land of property belonging to their fathers ceived. 30 500 square metres. The first which had been taken by the au- three applicants were successful; thorities without payment of com- According to the applicant, flats the claims of the other three were pensation. have been built on the larger plot of rejected on the ground that they did land which have been sold to, and not live in the relevant area. How- Driza are occupied by, the new owners. ever, on 7 April 1999 the Land Com- Temporary buildings have been The applicant, Ramazan Driza, is an mission declared the applicants’ constructed on the smaller plot of Albanian national who was born in titles void. That decision was an- land. 1941 and lives in Tirana. In prewar nulled on 4 February 2000 by Albania, his father owned a bakery Durrës District Court, which in Tirana and a plot of land. In 1960 Ramadhi and others ordered the Commission to re- the Albanian authorities demol- The applicants are six Albanian na- examine the case. On 8 January ished the building and expropriated tionals, Shyqyri Ramadhi, Remzi 2003, the Commission upheld the the land. Kapidani, Rabije Ramadhi, Xhemile validity of the first three applicants’ Following an application by the ap- Ramadhi (now deceased), Dilaver titles. However, the applicants plicant under the Property Act, the Ramadhi and Nakib Ramadhi. They maintained that their plots of land authorities declared that the na- are siblings, born in 1916, 1921, 1927, were nonetheless transferred to tionalisation of his father’s property 1928, 1934 and 1943, who live in third parties by the local authori- had been unlawful and allocated to Kavaja and Durrës (Albania). ties. the applicant, in compensation, two The Driza application was lodged During the communist regime, plots of land measuring 5 000 with the European Court of Human several plots of land and two shops square metres (1 650 square metres Rights on 4 September 2002 and the in the Kavaja region, which were and 3 350 square metres). That deci- Ramadhi and others application was owned by the applicants’ father, sion was upheld on 20 June 1996 by lodged with the Court on 9 October were confiscated by the authorities the Tirana Property Restitution and 2002. Compensation Commission. He without compensation. Mr Driza complained of the unfair- was, however, unable to take posses- Following an application by the ap- ness of supervisory review proceed- sion of that land because it was oc- plicants under the Property Act, the ings and the quashing of a final cupied. On 2 June 1998 Tirana Court Kavaja Property Restitution and judgment in his favour. He relied on of Appeal upheld the validity of the Compensation Commission upheld Article 6 §1, Article 1 of Protocol Commission’s decision. The court of the applicants’ title as joint owners No. 1 and Article 13. appeal’s decision was upheld on of two shops and a plot measuring 17 December 1998 by the supreme 15 500 square metres; 10 000 square The applicants in Ramadhi and court, whose judgment subse- metres was to be returned to them others complained of the authori- quently became final. and it was ruled that they were enti- ties’ failure to enforce decisions in Judgments were later issued in tled to compensation for the rest. their favour; and three of them also supervisory-review proceedings (on The applicants took possession of complained that the domestic 5 July 2001) and in a parallel set of that plot of land. However, they re- courts had discriminated against proceedings (on 7 December 2000), ceived no compensation. them on the ground of their place of

26 Selected Chamber judgments Council of Europe European Court of Human Rights

residence. They relied on Article 6 The Court noted that the state au- at the applicants’ disposal to secure § 1, Article 13, Article 1 of Protocol thorities had also failed to enforce the enforcement of the Commis- No. 1 and Article 14 (prohibition of the District Court’s judgment of sion’s decisions of 7 June 1995 and discrimination). 4 February 2000 as regards the first 20 September 1996. three applicants. Decision of the Court The Court therefore held that there Article 14 had been a violation of Article 6 §1 The Court observed that, in Article 6 §1 concerning the failure to enforce Ramadhi and others, the last three the Commission’s decision of 7 June Driza applicants failed to raise the issue of 1995 and 20 September 1996, and discrimination before the domestic The Court considered that, in grant- the Kavaja District Court judgment courts; their complaint was there- ing leave to have a final judgment of 4 February 2000 (in respect of the fore inadmissible. reviewed and allowing the intro- first three applicants). duction of parallel sets of proceed- Article 46 ings, the Albanian Supreme Court Article 1 of Protocol No. 1 In both cases the Court noted short- had set at naught an entire judicial Driza process which had ended in a final comings in the Albanian legal and enforceable judicial decision. The Court noted that the failure of system, as a consequence of which, The Court also found that the the authorities to enforce the judg- an entire category of individuals supreme court was not impartial ments of 17 December 1998 and had been and still were being de- and, by failing to take the necessary 7 December 2000 amounted to an prived of their right to the peaceful measures to comply with the judg- interference with the applicant’s enjoyment of their property, stem- ments of 17 December 1998 and right to the peaceful enjoyment of ming from the non-enforcement of 7 December 2000, the Albanian au- his possessions. The Court recalled court judgments awarding compen- thorities had deprived the provi- that lack of funds could not justify a sation under the Property Act. sions of Article 6 §1 of all useful failure to enforce a final and Indeed, there were already dozens effect. The Court concluded that binding judgment debt owed by the of identical applications before the there had been a violation of state. Accordingly, there had been a Court. The escalating number of ap- Article 6 §1 in respect of the breach violation of Article 1 of plications was an aggravating factor of the principle of legal certainty, Protocol No. 1. as regards the state’s responsibility the impartiality of the court and the under the Convention and also a Ramadhi and others non-enforcement of a final judg- threat for the future effectiveness of ment. The Court considered that the Alba- the Convention system, given that, nian Government had not produced in the Court’s view, the legal Ramadhi and others any convincing evidence to justify vacuums detected in the applicants’ cases might subsequently give rise Concerning the enforcement of the the failure of the domestic authori- to numerous other, well-founded Commission’s decisions, the Court ties over so many years to deter- applications. observed that, irrespective of mine the final amount of the whether the final decision to be ex- compensation due to the applicants The Court reiterated that, under ecuted took the form of a court or to return to the first three appli- Article 46, Albania had undertaken judgment or a decision by an ad- cants a plot of land belonging to to abide by the final judgments of ministrative authority, domestic them which had since been allo- the Court, whose execution was su- law as well as the Convention pro- cated to third parties. There had pervised by the executive body of vided that it was to be enforced. therefore been a violation of the Council of Europe (the Commit- However, no steps had been taken Article 1 of Protocol No. 1 regarding tee of Ministers). Consequently, to enforce the Commission’s deci- compensation (all the applicants) where the Court found a violation, sions in the applicants’ favour. None and restitution (the first three ap- Albania had a legal obligation not of the property acts or any related plicants). just to pay those concerned the domestic provision governed the sums awarded by way of just satis- enforcement of the Commission’s Article 13 faction under Article 41, but also to decisions. In particular, the various select, subject to supervision by the Driza property acts in Albania did not Committee of Ministers, the general provide either for any statutory The Court considered that the gov- and/or, if appropriate, individual time-limit for appealing against ernment had failed to establish an measures to be adopted regarding such decisions before the domestic adequate procedure in relation to its legal system, to put an end to the courts or for any specific remedy for compensation claims. Moreover, it violation found by the Court and to their enforcement. The Court was unlikely that the government redress so far as possible its effects. further noted that the property acts would put in place such a system Furthermore, once a deficiency in left the determination of the appro- imminently or soon enough to the legal system had been identified priate form and manner of compen- enable the settlement of the dispute by the Court, the national authori- sation to the Albanian Council of related to the determination of the ties had the task, subject to supervi- Ministers, which was to define the applicants’ rights. Consequently sion by the Committee of Ministers, detailed rules and methods for such there had been a violation of of taking within a determined compensation. To date no such Article 13 concerning the complaint period of time – retrospectively if measures had been adopted. The under Article 1 of Protocol No. 1. need be – the necessary measures, decisions in the applicants’ favour so that the Court did not have to had been unenforced for 12 and Ramadhi and others repeat its finding of a violation in a 11 years respectively and the govern- The Court held that there had been long series of comparable cases. ment had not submitted any evi- a violation of Article 13 in conjunc- The Court considered that Albania dence that relevant measures were tion with Article 6 §1 in respect of should, above all, introduce a imminent. the ineffectiveness of the remedies remedy which secured genuinely ef-

Driza v. Albania, Ramadhi and others v. Albania 27 Human rights information bulletin, No. 73 Council of Europe fective redress for the violations statutory, administrative and budg- entitled to receive compensation in identified in Ramadhi and Others as etary measures were taken. Those value, to make it possible for all well as in all similar applications measures should include the adop- claimants awarded compensation pending it. tion of property valuation plans in under the Property Act, to obtain The Court called on Albania to respect of those applicants entitled speedily the sums or the land due to remove all obstacles to the award of to receive compensation in kind them. Such measures should be compensation under the Property and the designation of an adequate made available as a matter of ur- Act by ensuring the appropriate fund in respect of those applicants gency.

Dybeku v. Albania

Judgment of 18 December 2007. Concerns: complaint that detention conditions and medical treat- Article 3 (violation) ment received in prison were not appropriate given the state of the applicant’s health.

Facts and complaints ceived in-patient treatment in prison should be examined under Tirana Prison Hospital only when Article 3. The applicant, Ilir Dybeku, is an Al- his health worsened from 26 May The Court observed that the parties banian national who was born in 2004 to 2 June 2004 and from 1 De- agreed that the applicant was suf- 1971 and is currently in Peqin High cember 2004 to 26 January 2005. fering from a chronic mental disor- Security Prison (Albania). The applicant’s father and lawyer der, which involved psychotic From 1996 onwards the applicant lodged several complaints with the episodes and feelings of paranoia. has been suffering from chronic competent authorities against the His condition had also deteriorated paranoid schizophrenia. For many prison hospital administration and by the time he received in-patient years he has received in-patient the medical unit, alleging that they treatment in Tirana Prison Hospi- treatment in various psychiatric had been negligent in failing to pre- tal. hospitals in Albania. scribe adequate medical treatment The Court also noted that all the On 23 August 2002 two children, and that the applicant’s health had complaints from the applicant’s aged 10 and 13, and another person deteriorated because of the lack of father and lawyer were disregarded. died following an explosion in the medical treatment. Their com- Indeed, the Court observed that the flat of the applicant’s sister’s family; plaints were dismissed. last assessment of the applicant’s others were injured. Given the applicant’s increasingly health dated back to 2002. The ap- On 24 August 2002 criminal pro- disturbed state of mind, on plicant’s medical notes showed that ceedings were brought against the 7 January 2005 his lawyer brought he had repeatedly been prescribed applicant, who, on the same day, proceedings asking for him to be re- the same treatment and that no de- was arrested and charged with leased or transferred to a medical tailed description had been given of murder and illegal possession of ex- facility on the ground that his de- the development of his illness. plosives. He was placed in the pre- tention conditions were inappropri- The Court considered that the trial detention facility of Durrës ate, given his state of health, and feeling of inferiority and powerless- Police Commissariat, where he put his life at risk. Based on recent ness typical of those suffering from shared a cell with an unspecified medical reports, the applicant’s a mental disorder called for in- number of prisoners. counsel also asked for psychiatric creased vigilance in reviewing On 27 May 2003, on the basis of a examinations to be undertaken. whether the Convention had been Those requests were rejected. medical report, which concluded complied with. While it was for the that at the time of the offence the The applicant’s appeals were unsuc- authorities to decide, on the basis of applicant was in remission, Durrës cessful. the recognised rules of medical sci- District Court ruled that he was The application was lodged with the ence, on the therapeutic methods to able to stand trial. The court found European Court of Human Rights be used to preserve the physical and him guilty and sentenced him to life on 25 September 2006. mental health of patients who were incapable of deciding for them- imprisonment. The applicant alleged, in particular, selves, and for whom they were The applicant appealed unsuccess- that his detention conditions and therefore responsible, such patients fully and his requests for new the medical treatment he received nevertheless remained under the medical examinations were rejected in prison were not appropriate protection of Article 3. as unnecessary by the domestic given his state of health. He also courts. complained about the unfairness of The Court accepted that the very the legal proceedings concerning nature of the applicant’s psycholog- Since December 2003 the applicant ical condition made him more vul- has been in three different prisons: his complaints. He relied on Arti- cles 3 (prohibition of inhuman or nerable than the average detainee Tirana Prison no. 302, Tepelene and that his detention might have Prison and Peqin Prison, where he degrading treatment) and 6 (right to a fair trial). exacerbated to a certain extent his has shared cells with inmates who feelings of distress, anguish and were in good health and has been Decision of the Court fear. The fact that the Albanian treated as an ordinary prisoner, Government admitted that the ap- despite his state of health. plicant was treated like the other in- According to the Albanian authori- Article 3 mates, notwithstanding his ties, as it was impossible to provide The Court considered that the ap- particular state of health, showed a the applicant with the medical plicant’s complaints about the inad- failure to comply with the Council treatment he needed, he was equacy of his detention conditions of Europe’s recommendations on treated with drugs similar to those and the inappropriate medical dealing with prisoners with mental prescribed by his doctor. He re- treatment he received while in illnesses.

28 Selected Chamber judgments Council of Europe European Court of Human Rights

The Albanian Government had also means. In any event, a lack of re- particularly with regard to prisoners failed either to submit detailed in- sources could not in principle with mental illnesses, and its own formation about the material con- justify detention conditions so poor case-law. It concluded that the ditions of the applicant’s detention as to reach the threshold of severity nature, duration and severity of the or to show that those conditions for Article 3 to apply. ill-treatment to which the applicant were appropriate for a person with The Court took into account the cu- was subjected and the cumulative his history of mental disorder. Fur- mulative effects of the entirely inap- negative effects on his health were thermore, the Court considered propriate conditions of detention to therefore sufficient to be qualified that the applicant’s regular visits to which the applicant was subjected, as inhuman and degrading, in viola- the prison’s hospital could not be which clearly had a detrimental tion of Article 3. viewed as a solution since the appli- effect on his health and well-being. cant was serving a sentence of life It also took note of the Council of Article 6 imprisonment. Europe’s Committee for the Preven- Many of those shortcomings could tion of Torture’s findings in its The Court held that the applicant’s have been remedied even in the latest reports concerning the deten- complaints under Article 6 were in- absence of considerable financial tion conditions in Albanian prisons, admissible.

Riad and Idiab v. Belgium

Articles 3 and 5 (viola- Judgment of 24 January 2008. Concerns: conditions in which the applicants were detained in the tions) transit zone of Brussels-National Airport following their unlawful entry into Belgian territory.

Facts and complaints transferred on the very same day to leave Belgian territory and were the transit zone of Brussels- taken to the Merksplas Detention The applicants, Mohamad Riad and National airport pending their Centre for Illegal Aliens. Abdelhadi Idiab, are Palestinian na- removal from Belgium. Mr Idiab and Mr Riad were repatri- tionals who were born in 1980 and The applicants complained of the ated under police escort on 5 and 1981 respectively and live in Leba- conditions in which they were de- 8 March 2003 respectively, on non. tained in the transit zone. They as- flights to Beirut via Moscow. They both arrived in Belgium at serted that it did not have bedrooms The applications were lodged with Brussels-National Airport on flights or beds and that they were housed the European Court of Human from Freetown (Sierra Leone), in the mosque which is located Rights on 6 August 2003 and de- Mr Riad on 27 December 2002 and there; that they went several days clared admissible on 21 September Mr Idiab on 24 December of the without being given anything to eat 2006. same year. They declared that they or drink and received food only Relying on Articles 3 (prohibition of had left Lebanon, where their lives from the cleaning staff or the inhuman and degrading treatment) were in danger, had travelled via the company which ran the airport; that and 8 (right to respect for private Ivory Coast and Sierra Leone, and they were not able to wash them- and family life), the applicants com- wished to go on to the United selves or launder their clothes; that plained of the way they were treated Kingdom where they intended to they were repeatedly subjected to in the transit zone and while being seek political asylum. security checks by the airport deported. They further complained, police; that on a number of occa- As neither applicant possessed a under Article 5 (right to liberty and sions they were taken to the cells visa, they were refused entry into security), about their detention in and left there for several hours Belgium and as a result each of the transit zone and at Merksplas. them was placed on the day of without being given anything to eat arrival in “Centre 127”. They submit- or drink, in an attempt to force A public hearing took place in the ted applications for asylum, which them to leave the country voluntar- Human Rights Building, Strasbourg, were refused by the Aliens Office in ily, before being taken back to the on 30 November 2006. decisions which were subsequently transit zone; and, that they were vi- upheld by the Commissioner for olently struck and beaten inside the Decision of the Court Refugees and Stateless Persons. mosque by certain members of the federal police. Following an attempted collective Article 5 break-out from Centre 127, the ap- On 14 February 2003, on an applica- The Court noted at the outset that a plicants were transferred on tion by the applicants, the President situation in which the Aliens Office 22 January 2003 to the Closed De- of the Brussels Court of First In- was able, on two occasions, to main- tention Centre for Illegal Aliens in stance ordered the Belgian State to tain the applicants in detention in Bruges. In the meantime the appli- permit the applicants to leave the spite of the fact that the previous cants’ lawyer had lodged an applica- transit zone freely and without re- detention orders had been over- tion for their release, which the striction, subject to a coercive fine turned and the applicants’ release chambre du conseil of the Brussels of EUR 1 000 per hour of default, clearly ordered by final decisions Court of First Instance allowed on commencing with service of the raised serious concerns about the 20 January 2003. However, the ap- order. On the following day the principle of lawfulness and the plicants’ detention continued Aliens Office received the instruc- proper execution of judicial deci- pending their repatriation. The tion to permit the applicants to sions. In this regard, the Court orders for their release were upheld leave the transit zone. noted that the President of the on appeal, on 30 January 2003 in Mr They accordingly left the transit Brussels Court of First Instance had Riad’s case and on 3 February 2003 zone on 15 February 2003, but, fol- drawn attention to the unlawful- in Mr Idiab’s case. Nevertheless, in lowing an identity check soon after, ness of the placement and contin- both cases the applicants were they were served with an order to ued detention of the applicants in

Riad and Idiab v. Belgium 29 Human rights information bulletin, No. 73 Council of Europe the airport transit zone and had With regard to the placement in zone was to oblige them to leave the noted that this was unacceptable Merksplas, the Court noted that the country of their own accord. and contrary to the rule of law. The orders of 14 February 2003 indicated The Court considered that the Court observed that a similar con- clearly that, until such time as the transit zone was not an appropriate clusion regarding unlawfulness had applicants were repatriated, the place for the period of detention previously been reached by the state was to allow them to move which the applicants had been President of the Nivelles Court of about the territory freely, unless the obliged to spend in it. By its very First Instance and later by the Brus- Ministry decided to require them to nature, it was a place intended to sels Court of Appeal, the United stay in a specific location. Although receive people for extremely short Nations Human Rights Committee the state clearly refused to proceed periods of time. The transit zone, and the Panel of Federal Ombuds- with enforcement of the repatria- the nature of which could arouse in men. tion decisions and hoped, in spite of detainees a feeling of solitude, had previous failed attempts, that the Accordingly, the Court considered no external area for walking or applicants would leave of their own that the transfer and detention in taking physical exercise, no internal accord, it had continued to detain the transit zone had not repre- catering facilities, and no radio or them under other decisions. The sented a good-faith application of television to ensure contact with detention in Merksplas had there- the immigration legislation, since it the outside world; it was in no way fore been imposed in total disregard appeared that those actions had adapted to the requirements of a for the previous orders. The Court been manifestly contrary to the stay of more than ten days. judgments of 30 January and 3 Feb- had pointed out on several occa- ruary 2003 and that the Aliens sions that the implementation of The Court considered that the con- Office had knowingly exceeded its final judicial decisions was essential ditions of detention which the ap- powers. in a state which respected the rule plicants had had to endure for more of law. than ten days had indeed caused The Court also pointed out that, them considerable mental suffer- under its case-law, there had to be In conclusion, the Court considered ing, undermining their human some relationship between, on the that the applicants’ detention after dignity and arousing in them feel- one hand, the ground of permitted 3 February 2003 had not been ings of humiliation and debase- deprivation of liberty relied on and, lawful, in violation of Article 5 §1. ment. In addition, the humiliation on the other, the place and condi- felt by the applicants had been ex- tions of detention. In that respect, it Article 3 acerbated by the fact that, having noted that it was clear from reports The Court noted that when the ap- obtained a decision ordering their by the CPT (European Committee plicants were taken to the transit release, they had been deprived of for the Prevention of Torture and zone, the Aliens Office, which was liberty in other premises. The appli- Inhuman and Degrading Treatment responsible for this transfer, had cants must also have felt humiliated or Punishment) that the transit taken no measures to ensure that by the obligation to live in a public zone was not an appropriate place they would receive appropriate sup- place, without support. of residence. Yet, from 3 February port. 2003, the applicants had been left to The Court expressed surprise at the In those circumstances, the Court their own devices in the transit attitude of the Aliens Office, since it considered that the fact of detain- zone, without any form of humani- ran a centre in which the applicants ing the applicants for more than ten tarian or social assistance. In that could have been housed more ap- days in the premises in question respect, it was also relevant that the propriately on a short-term basis, had amounted to inhuman and de- detention measures in question namely the “INADS” centre. The grading treatment, in violation of applied to foreign nationals who, in Court noted the reports and obser- Article 3. the applicants’ case, had committed vations of the UN Human Rights no offences other than those related Committee, the Federal Ombuds- Article 8 to their residence status. men and the CPT, which showed The Court also noted that the gov- that those were not isolated acts on The Court considered that no sepa- ernment had failed to explain the the part of that Office and substan- rate question arose under Article 8, legal basis on which the transfer tiated the applicants’ allegation that as the events on which this com- and detention in the transit zone the purpose of the Aliens Office in plaint was based had already been had been conducted. abandoning them in the transit examined in the context of Article 3.

Rumyana Ivanova v. Bulgaria

Judgment of 14 February 2008. Concerns: complaint about conviction for defamation. Article 6 §§1 and 3 (d), Article 10 (no violation) Facts and complaints duced in 1997 to reform Bulgarian list were popularly referred to as banking legislation, in particular as “credit millionaires”. The applicant, Rumyana Dencheva concerned non-performing and un- Ivanova, is a Bulgarian national who On 4 August 2001 24 Hours pub- secured loans. The act stipulated lives in Sofia. She is a reporter for 24 lished an article written by that the Bulgarian National Bank Hours, one of Bulgaria’s leading Ms Ivanova which stated that should compile a list, to be pub- daily newspapers. Mr M.D. was on the national bank’s lished in a special bulletin, of all official list of 21 January 1998 on Ms Ivanova complained about her those clients with loans which had account of his ownership of three conviction for defamation of Mr been overdue for more than six companies: Maxcom Holding, FBK M.D., a well-known politician. months. That list was presented to Maxcom and Maxcom OOD. The Following a serious banking crisis in the National Assembly on article suggested that Mr M.D. – a the late 1990s, an act was intro- 21 January 1998. The clients on the candidate at that time for the post

30 Selected Chamber judgments Council of Europe European Court of Human Rights

of deputy minister of finance – The application was lodged with the cian and candidate for public office, being mentioned on the list was European Court of Human Rights Mr M.D. had inevitably and know- cause for concern for the prime on 14 November 2003. ingly laid himself open to public minister. The 24 Hours’ editor, in- Relying on Article 6 §§1 and 3 (d) scrutiny, in particular as regards his formed by Mr M.D. that he was not and Article 10, Ms Ivanova com- financial integrity. a shareholder of the three Maxcom plained that the proceedings However, Article 10 did not guaran- companies, published a rectified against her were unfair and that her tee totally unrestricted freedom of version of the article later the same ensuing conviction for defamation expression. The exercise of that day. On 6 August 24 Hours also ran infringed her right to freedom of freedom carried with it “duties and an additional article in which expression. responsibilities”, particularly when Mr M.D. denied any involvement someone’s reputation was at stake. with Maxcom or any other debtor Decision of the Court When applied to the press, those company. duties and responsibilities involved Article 6 §§1 and 3 (d) acting in good faith to provide accu- On 8 October 2001 Mr M.D. brought rate and reliable information in ac- criminal proceedings against the The Court noted that the appli- cordance with the ethics of applicant for libel, in breach of Arti- cant’s complaint concerning Sofia journalism. cles 147 §1 and 148 §§1 (2) and 2 of District Court’s failure to establish The statement in the applicant’s the Bulgarian Criminal Code. In her whether Mr M.D. had indirectly article about Mr M.D. having been defence, the applicant claimed that been a member of Vitaplant OOD mentioned on an official debtors’ she had simply relayed information had been rectified on appeal and, in list on account of his ownership of from members of parliament who any event, that had not made her three specifically named companies had tipped her off about doubts statement concerning Mr M.D.’s had clearly been an allegation of concerning Mr M.D.’s candidacy. ownership of the Maxcom compa- fact and, as such, susceptible to She had verified that information nies any less defamatory. by contacting the Customs Admin- proof. Indeed, the more serious the Furthermore, the district court istration Press Office, who had re- allegation, as in the case in ques- could not be criticised for failing to ferred her to the full list of credit tion, the more solid the proof had to summon as a witness the member millionaires published on be, especially as those allegations of parliament who had tipped off 22 January 1998 by Trud, another had been published in a popular na- the applicant. The applicant had leading national newspaper. FBK tional daily newspaper with a wide not identified that member of par- Maxcom and Maxcom OOD were circulation. liament and, according to the mentioned in the preface of that The Court saw no reason to ques- Court’s settled case-law, it was the publication and, having checked an tion the findings of the domestic national courts’ responsibility to electronic law database, the appli- courts that the applicant had not assess whether it was appropriate to cant found that Mr M.D. had been a provided sufficient proof that her call a witness. member of Vitaplant OOD, also on statement was not defamatory and, the debtor list. The decisions in the applicant’s case in fact, that she had published facts had not therefore been arbitrary which she had known or ought to On 16 September 2002 Sofia Dis- and, reiterating that it was primarily have known to be dubious. Moreo- trict Court found the applicant for the national authorities, notably ver, the applicant had phrased her guilty of slander and ordered her to the courts, to interpret and apply statement in such a way as to leave pay an administrative fine of 500 domestic law, the Court did not no doubt that it had been her alle- new Bulgarian levs (BGN) (approxi- find that the proceedings against gation, not that of the members of mately 256 euros (EUR)), compen- the applicant had been unfair. Ac- parliament who had tipped her off. sation and costs. That judgment cordingly, there had been no viola- The statement had also implied that was upheld on appeal on 19 May tion of 6 §§1 and 3 (d). the information had been directly 2003. In those two decisions, the based on the official list, not on any courts held that the applicant was Article 10 other publications, such as in Trud. only able to prove that Mr M. D. was The applicant had adopted the alle- Both parties agreed that the appli- on the official bad debtors’ list gations as her own and had there- cant’s conviction for defamation through his connection with the fore been liable for their had amounted to an interference company Vitaplant OOD, not truthfulness. with her right to freedom of expres- through the Maxcom companies sion. That interference, based on There had been no special grounds cited in the article. Alleging that Mr Articles 147 and 148 of the Criminal to exempt the applicant from her M.D. was a “credit millionaire” Code, had been “prescribed by law”. obligation to verify her statements. because of his indirect involvement The Court therefore went on to Clearly Trud’s publication, not an in one company was quite different examine whether that interference official report, and informal state- to stating that he fully owned three had been “necessary in a democratic ments made by two Members of companies on the bad debtors’ list. society” and corresponded to a Parliament in a National Assembly Those decisions also found, in gen- “pressing social need”. lobby could not be relied upon un- eral, that the applicant did not suf- reservedly. ficiently verify her information The Court reiterated the vital role of prior to its publication and that, in the press as “public watchdog” and Although the article had been her desire to publish news quickly its duty in a democratic society to amended and then a response by and against best journalistic prac- provide information on all matters Mr M.D. published, the article’s tice, she failed to consult trustwor- of public interest. The article at original version had by that time thy sources. issue had reported on a question of been widely read and the damage to considerable public interest: the his reputation already done. In the meantime, Mr M. D. with- candidacy of a well known politi- The Court was therefore satisfied drew his candidacy for the post of cian for the post of deputy minister that the reasons given by the Bul- deputy minister of finance. of finance. Furthermore, as a politi- garian courts for convicting the ap-

Rumyana Ivanova v. Bulgaria 31 Human rights information bulletin, No. 73 Council of Europe plicant had been relevant and the other, protection of the reputa- ability having been waived in favour sufficient and that the manner in tion or rights of others. of the minimum administrative which the case had been examined In view of the reasons given by the fine, the Court concluded that there had shown full recognition of a con- Bulgarian courts for convicting the had therefore been no violation of flict between, on the one hand, the applicant and of the relative leni- Article 10. right to impart information and, on ence of her punishment, criminal li-

Hummatov v. Azerbaijan

Judgment of 29 November 2007. Concerns: applicant’s complaints about inadequate medical treat- Articles 3, 6 §1, 13 (viola- tions) ment in prison and unfairness of criminal proceedings.

Facts and complaints March to May 2000, he was hospi- More than 20 hearings took place in talised. Gobustan Prison from January 2002 The applicant, Alakram Alakbar to July 2003. A number of hearings In January 2001 the applicant was oglu Hummatov, is a stateless were postponed. Gobustan is a con- transferred to Gobustan High Secu- person who was born in 1948 in Az- siderable distance from Baku and rity Prison where he continued to erbaijan and currently lives in The not served by public transport or complain of breathlessness, head- Hague (the Netherlands). easily accessible by other forms of aches, coughing and chest pain and transport. The applicant and inde- The case concerned Mr Humma- was prescribed similar medication pendent observers submitted that tov’s complaints about inadequate as before. At his request he was fre- no regular shuttle bus service was medical treatment in prison and the quently examined by doctors who provided and access to hearings was unfairness of criminal proceedings declared his condition to be satis- severely restricted as permission against him. factory. Hospital treatment was not had to be obtained first from the In 1988 the applicant became in- considered necessary. He was pre- presiding judge and then the prison volved in politics and, in June 1993, scribed various treatments, and, on authorities. Observers who were he put forward a proposal, to which one occasion, was advised to go on a granted access were subjected to a central government opposed, for special diet and take warm sitz body search before entering the political autonomy in certain parts baths. prison’s courtroom. of southern Azerbaijan, including The applicant alleged that he was Lenkoran. In August 1993 he and his In July 2003 the Court of Appeal not provided with adequate medical supporters announced the creation upheld the applicant’s conviction care given that he had a number of of “Talysh-Mugan Autonomous Re- and again sentenced him to life im- serious diseases, including tubercu- public” (“Talış-Muğan Muxtar prisonment. Ultimately, the losis, and that he depended on rela- Respublikası”). The applicant was Supreme Court rejected the appli- tives to provide him with elected its “President”. At the same cant’s cassation appeal and dis- medication or to bribe the prison time, he attempted to take charge of missed his complaint about the lack authorities to ensure his treatment. military units located in Lenkoran, of publicity of the appeal proceed- as well as to depose and arrest At the applicant’s request, the ings. certain regional public officials. Medical Commission of the Azer- On 3 September 2004 the applicant Public disorder ensued and people baijani National Committee of the was issued with a presidential were killed. Helsinki Citizens’ Assembly drew pardon. He was released from up an independent medical opinion At the end of 1993 the applicant was prison on 5 September and, after re- (the “HCA Opinion”) based on the arrested and detained on charges of, questing the termination of his Az- applicant’s medical records. The among other things, high treason erbaijani citizenship (according to report concluded that the applicant and use of armed forces against the the applicant, under duress), was had received grossly inadequate state. In February 1996 he was con- immediately taken to the airport medical treatment from 1996 to victed as charged and sentenced to where he boarded a flight to the 2003. death. In February 1998, following Netherlands. the abolition of the death penalty in Between 2001 and 2004 the appli- According to medical examinations Azerbaijan, the applicant’s sentence cant made numerous unsuccessful carried out in 2004 and 2005 in the was commuted to life imprison- attempts, including three lawsuits Netherlands, Mr Hummatov was ment. against the ministry of internal af- still suffering from pains in the fairs, to obtain compensation for chest, shortness of breath, cough- From June 1996 the applicant was the damage caused to his health. ing, headaches, dizziness and lack detained in the 5th Corpus of Bayil of concentration. Prison, the equivalent of “death In the meantime, Mr Hummatov’s row” in Azerbaijan. He was detained case, which received wide media The applications were lodged with in a cell with five other prisoners coverage, was routinely mentioned the European Court of Human who were seriously ill with tubercu- in reports by international organi- Rights on 13 March 2003 and losis and who have all subsequently sations, including the Council of 31 March 2004. On 5 July 2005 the died. In February 1997 he started to Europe, which, in 2000, recognised Court decided to join the applica- complain of chest pain and suffered him as a “political prisoner”. Given tions. They were declared partly ad- from severe weight loss. In April Azerbaijan’s undertaking to the missible on 18 May 2006. 1997 he was diagnosed with pulmo- Council of Europe to either release Relying on Articles 3 and 13, Mr nary tuberculosis. He was pre- or re-try political prisoners, the Hummatov alleged that the Azer- scribed with anti-bacteriological Court of Appeal decided to grant baijani authorities had knowingly medication but his condition se- the applicant’s request for a new in- and willingly contributed to a verely deteriorated and, from vestigation and a public hearing. serious deterioration in his health

32 Selected Chamber judgments Council of Europe European Court of Human Rights

by denying him adequate medical through. For example, it was diffi- recourse to a remedy which had treatment in prison. He also com- cult to see how the sitz bath treat- been available and effective both in plained under Article 6 §1 that, in ment had been possible in a prison law and in practice. It therefore held particular, the appeal proceedings where there had been no hot water that there had been a violation of had not been fair or public. and showers had only been allowed Article 13. once a week. The diet had been Decision of the Court equally difficult to adhere to as it Article 6 §1 had not been indicated what the Article 3 diet should be or for how long. Sec- The Court noted that the govern- ondly, the Court accepted the appli- ment had not provided evidence to The Court found that, given the cant’s claims that he had often had prove that the public and media had facts of the applicant’s case and sta- to rely on his relatives to provide been informed about the time, in- tistics indicating that tuberculosis him with medication. The Council cluding postponements, and place in Azerbaijani prisons was nearly 50 of Europe’s Committee for the Pre- of the hearings before the Court of times higher than the national aver- vention of Torture and Inhuman or Appeal or been given instructions age, it was apparent that the appli- Degrading Treatment or Punish- on how to reach Gobustan Prison. cant had contracted tuberculosis in ment issued a report in 2002 con- Bayil Prison. cerning the Azerbaijani prison Moreover, the Court accepted the claim that there had been no shuttle Accordingly, by the time of the Con- system which corroborated such bus provided. The fact that it had vention’s entry into force in Azerba- claims. Lastly, the Court considered been necessary to arrange costly ijan on 15 April 2002, the applicant the conclusions of the HCA Opin- means of transport and travel to a had already suffered for several ion, the only independent and com- remote destination, as opposed to years from a number of serious ill- prehensive report available, to be attending the Court of Appeal’s nesses, including tuberculosis. The credible. The government had not courtroom in Baku, had clearly fact that he had continued to com- submitted any convincing report to been a disincentive for those plain about those illness until his contradict that opinion. wishing to attend the applicant’s release in September 2004 indicated In conclusion, the Court found that trial. The strict rules concerning that he had still needed regular the medical care provided to the ap- access to the hearings had been medical care after 15 April 2002, plicant in Gobustan Prison in the equally discouraging. which was the period within the period after 15 April 2002 had been Court’s competence. inadequate and must have caused In sum, the court of appeal had The Court found that there was him considerable mental suffering failed to adopt adequate compensa- which had diminished his human convincing evidence to raise serious tory measures to counterbalance dignity and amounted to degrading doubts as to whether that medical the detrimental effect of the closed care had been adequate. Firstly, it treatment. Consequently, the Court area of Gobustan Prison on the held that there had been a violation appeared that the applicant had public character of the applicant’s of Article 3. only been attended to at his specific trial. request and with significant delays. The authorities had given no justifi- The applicant had mainly been Article 13 cation, such as a security risk, for treated for his symptoms; no com- The Court found that the govern- such a lack of publicity. prehensive therapeutic strategy to ment had not shown that, in the cure his illnesses had been pre- particular circumstances of the ap- The Court concluded that the appli- scribed. Certain treatments pre- plicant’s case, the applicant had cant had not had a public hearing, scribed had been difficult to follow been given an opportunity to have in violation of Article 6 §1.

Ryakib Biryukov v. Russia

Article 6 §1 (violation) Judgment of 17 January 2008. Concerns: failure to pronounce judgment publicly.

Facts and complaints proceedings for damages against a Article 6 §1 (right to a fair hearing) hospital for malpractice, had not in that the public had had no access The applicant, Ryakib Biryukov, is a been “pronounced publicly”. Russian national who was born in to the reasoned judgment and that 1977 and lives in Togliatti (Russia). the finding of a violation consti- The case concerned the applicant’s Decision of the Court tuted in itself sufficient just satis- complaint that the reasoned judg- The Court held unanimously that faction for the non-pecuniary ment in his case, which concerned there had been a violation of damage sustained by the applicant.

Liu and Liu v. Russia

Article 5 §1 (no violation); Judgment of 6 December 2007. Concerns: refusal to grant residence permit; allegedly illegal detention Article 8 (violation) and threat of deportation to China.

Facts and complaints was born in 1973. They have been two children have lived in Russia all married since 1994 and have a their lives. The family live in Sovet- The applicants are Liu Jingcai, a daughter and son, born in 1996 and skaya Gavan in the Khabarovsk Chinese national who was born in 1999 respectively, who are both region of Russia. 1968, and his wife, Yulia Aleksan- Russian nationals. Ms Liu and the drovna Liu, a Russian national who

Ryakib Biryukov v. Russia 33 Human rights information bulletin, No. 73 Council of Europe

Mr Jingcai lived legally in Russia centre with a view to deporting him. Internal Affairs to refuse residence from 1994-6 and 2001 to August The deportation order appears not permits and to require a foreign na- 2003 on the basis of renewable work to have been enforced. The appli- tional to leave the country on na- permits. cant is currently living with his tional security grounds without The case concerned the refusal to family in Russia. giving any reasons and without ef- grant him a residence permit. He is The application was lodged with the fective scrutiny by an independent currently living under the threat of European Court of Human Rights authority. being deported from Russia and on 25 November 2005. The decisions ordering Mr Jingcai’s being separated from his family. The applicants complained that Liu detention were taken by the Federal From November 2002 onwards he Jingcai’s detention had been unlaw- Migration Service on the initiative applied for a residence permit, but ful and that his deportation to of a local police department. Both his application was eventually re- China would damage their family agencies were part of the executive jected by the Khabarovsk Depart- life. They relied on Articles 8 and and took such decisions without ment of Internal Affairs under Article 5 §1. hearing the foreign national con- section 7 (1) of the Foreign Nation- cerned. It was not clear whether als Act, without any reasons being Decision of the Court there was a possibility of appealing given. against those decisions to a court or The applicants appealed unsuccess- Article 8 other independent authority offer- fully to the Russian courts. On 4 No- ing guarantees of an adversarial vember 2004 Tsentralniy District The Court found that the appli- procedure and competent to review Court of Khabarovsk found that cants’ relationship amounted to the reasons for the decisions and The Department of Internal Affairs family life and that the refusal to relevant evidence. had received information from the grant him a residence permit and The Court further observed that the Federal Security Service that Mr his deportation order constituted Administrative Offences Code pro- Jingcai posed a national security interference with the applicants’ vided for a different procedure for risk. However, that information was right to respect for their family life removal of foreign nationals unlaw- a state secret and could not be made and that it had a basis in domestic fully residing in Russia, with sub- public. There was no indication in law, namely section 7 (1) of the stantial procedural safeguards, in the district court’s judgment that it Foreign Nationals Act and section particular, the power to order ad- had had access to the classified in- 25.10 of the Entry Procedure Act. ministrative removal belonged ex- formation in question. However, the Court noted that the clusively to a judge and that order On 4 March 2005 a new application domestic courts were not in a posi- was subject to appeal to a higher for a residence permit was rejected tion to assess effectively whether court. It followed that Russian law by The Department of Internal Af- the decisions to reject Mr Jingcai’s establishes two parallel procedures fairs. The applicants’ attempts to application for a residence permit for expulsion of foreign nationals have that decision overturned were justified, because they were whose residence in Russia had failed. based on classified information. become unlawful. In one of those On several occasions in 2003, 2004 The Court recognised that the use procedures deportation of a foreign and 2005 Mr Jingcai was adminis- of confidential material might be national could be ordered by the ex- tratively fined for living in Russia unavoidable where national secu- ecutive without any form of inde- without a valid residence permit. rity was at stake. That did not mean, pendent review or adversarial However, the domestic courts re- however, that the national authori- proceedings, while the other proce- versed most of those decisions, ties could be free from effective dure (administrative removal) pro- finding them procedurally defective control by the domestic courts vided for judicial scrutiny. or time-barred. whenever they choose to assert that Domestic law permitted the execu- On 21 November 2005 Sovetskaya national security and terrorism tive to choose between those proce- Gavan Town Court held that were involved. There were ways to dures at their discretion. The Mr Jingcai had infringed the resi- deal with legitimate security con- enjoyment of procedural safeguards dence regulations and ordered his cerns about the nature and sources by a foreign national was therefore detention pending deportation. On of intelligence information while in the hands of the executive. providing the individual with a sub- the same day he was placed in a de- The Court concluded that Mr Jing- stantial measure of procedural jus- tention centre. He was released cai’s deportation was ordered on the tice. when the decision to detain him basis of legal provisions was quashed, on 13 December 2005, The failure to disclose the relevant (section 25.10 of the Entry Proce- under the Administrative Offences information to the courts deprived dure Act) that did not give an ade- Code, because reasons justifying his them of the power to assess whether quate degree of protection against detention had not been provided. the conclusion that Mr Jingcai con- arbitrary interference. Accordingly, On 3 February 2006 the administra- stituted a danger to national secu- in the event of the deportation tive proceedings against Mr Jingcai rity had a reasonable basis in the order against Mr Jingcai being en- were discontinued as time-barred. facts. It followed that the judicial forced, there would be a violation of On 12 November 2005 the head of scrutiny was limited in scope and Article 8. the Federal Migration Service did not provide sufficient safe- guards against arbitrary exercise of ordered Mr Jingcai’s deportation Article 5 §1 under section 25.10 of the Law on the wide discretion conferred by the Procedure for Entering and domestic law on the Ministry of In- The Court considered whether the Leaving the Russian Federation. No ternal Affairs in cases involving na- detention order of 21 November further reasons were provided. tional security. 2005 had constituted a lawful basis On 25 December 2006 Sovetskaya The Court concluded that the rele- for the first applicant’s detention Gavan Town Court ordered Mr Jin- vant provisions of the Foreign Na- until it was quashed on 13 Decem- gcai’s placement in a detention tionals Act allowed the Ministry of ber 2005.

34 Selected Chamber judgments Council of Europe European Court of Human Rights

The Court noted that the detention court had not acted in bad faith and 21 November to 13 December 2005 order of 21 November 2005 was had attempted to apply the relevant was unlawful, there had been no vi- quashed because the town court legislation correctly. The fact that olation of Article 5 §1. had not given reasons to justify the certain flaws in the procedure were necessity of holding Mr Jingcai in found on appeal did not in itself Other articles custody. The Court considered that mean that the detention was unlaw- that flaw did not amount to a “gross ful. As it had not been established The Court rejected the applicants’ or obvious irregularity”. The town that Mr Jingcai’s detention from other complaints as inadmissible.

Kovach v. Ukraine

Article 3 of Protocol No. 1 Judgment of 7 February 2008. Concerns: allegedly unfair election procedures. (violation) Facts and complaints The case concerned the applicant’s mission to annul the vote in four complaint about the unfairness of electoral divisions had to be consid- The applicant, Mykola Mykolayo- the procedure of counting votes in ered as arbitrary and not propor- vych Kovach, is a Ukrainian na- his constituency. He relied on tional who was born in 1967 and tionate to any legitimate aim Article 3 of Protocol No. 1 (right to lives in Uzhgorod (Ukraine). He pleaded by the government. It free elections). stood as a candidate in the 2002 therefore held unanimously that there had been a violation of parliamentary elections in a constit- Decision of the Court uency in the Zakarpattya region. Article 3 of Protocol No. 1 and The Court held, in particular, that awarded Mr Kovach 8 000 euros for the decision by an electoral com- non-pecuniary damage.

Chamber decision

Wolkenberg and others v. Poland, Witkowska-Tobola v. Poland

Article 1 of Protocol No. 1 Decision of 12 December 2007. Concerns: “Bug River cases”

The Court struck out 40 Polish River compensation scheme meets general were properly compensated cases, finding that Poland had suc- the requirement set out in its Grand as well as finding that there had cessfully put in place an effective Chamber judgment in the pilot case been a violation of Article 1 of Pro- compensation scheme available to Broniowski v. Poland of 22 June tocol No. 1 (protection of property) the nearly 80 000 people forced to 2004. Forty further Bug River cases to the European Convention on abandon their properties between were struck out and consideration Human Rights in the applicant’s 1944 and 1953 in the eastern prov- of the remaining cases (about 230) case. inces of prewar Poland, the so- will continue during 2008. This is called “Bug River” cases (sprawy za- the first time the Court has made bużańskie). use of the “pilot-judgment proce- In July 2005 the Polish Government passed a new law setting the ceiling On 4 December 2007 in its deci- dure”, devised to deal with systemic sions in the cases Wolkenberg and problems. for compensation for Bug River others v. Poland, application In its Grand Chamber Broniowski v. property at 20% of its original value no. 50003/99 and Witkowska- Poland judgment, the Court held and the Court is now satisfied that Tobola v. Poland, no. 11208/02), the that Poland was to take steps to the new law and compensation Court established that the new Bug ensure Bug River claimants in scheme is effective in practice.

Preparation of the Court’s annual report

The annual report of the European Court of Human Rights for 2007 is available online on the website. It will be published in book form by June 2008.

A short history of the annual report

In 2001 the need was felt for a more sponsible for gathering the relevant The Court’s Annual Report 2007 is detailed annual record of the information from the various made up of various chapters: Court’s organisation and activities sectors of the Court, writing certain than the traditional Survey. A more sections and finally publishing the • the history and development of comprehensive report was therefore report. the Convention system; developed, identifying develop- • the composition of the Court ments and trends in the Court’s The report is a genuinely useful and the sections; case-law. The Case-Law Informa- tool, easily and rapidly accessible tion and Publications Division is re- for all those who are interested in • the speech given by the Presi- the Court’s case-law. dent of the Court on the occa-

Kovach v. Ukraine 35 Human rights information bulletin, No. 73 Council of Europe

sion of the opening of the • activities of the Grand Chamber • a selection of judgments and de- judicial year; and sections; cisions delivered during the year; • the speech given by Louise • publication of the Court’s case- • cases accepted for referral to the Arbour, United Nations High law; Grand Chamber and cases in Commissioner for Human which jurisdiction was relin- Rights, on the same occasion; • a short survey of the main judg- quished by a Chamber in favour ments and decisions delivered of the Grand Chamber; • visits; by the Court in 2007; • statistical information.

Internet: http://www.echr.coe.int/

36 Preparation of the Court’s annual report Execution of the Court’s judgments

The Committee of Ministers supervises the execution of the Court’s final judgments by ensuring that all the necessary measures are adopted by the respondent states in order to redress the consequences of the violation of the Convention for the victim and to prevent similar violations in the future.

The Convention (Article 46, paragraph 2) judges or the construction of adequate deten- entrusts the Committee of Ministers (CM) with tion centres for young offenders, etc. the supervision of the execution of the European Court of Human Rights’ (ECtHR) In view of the large number of cases reviewed judgments. The measures to be adopted by the by the CM, only a thematic selection of those respondent state in order to comply with this appearing on the agendas of the 1013th Human Rights (HR) meeting1 (3-5 December 2007) is obligation vary from case to case in accordance presented here. Further information on the with the conclusions contained in the below-mentioned cases as well as on all the judgments. others is available from the Directorate General of Human Rights and Legal Affairs, as well as The applicant’s individual situation on the website of the Department for the Execution of Judgments of the European Court With regard to the applicant’s individual situa- of Human Rights (DG-HL) at the following tion, the measures include the effective address: payment of any just satisfaction awarded by the www.coe.int/Human_Rights/execution. ECtHR (including interest in case of late payment). Where such just satisfaction is not As a general rule, information concerning the sufficient to redress the violation found, the state of progress of the adoption of the execu- CM ensures, in addition, that specific measures tion measures required is published some ten are taken in favour of the applicant. These days after each HR meeting, in the document measures may, for example, consist of the called “annotated agenda and order of granting of a residence permit, the reopening business” available at www.coe.int/CM (see of criminal proceedings and/or the striking out Article 14 of the new Rules for the application of Article 46, §2 of the Convention, adopted in of convictions from criminal records. 2006 ).2

The prevention of new violations Interim and final resolutions are accessible through www.echr.coe.int on the Hudoc The obligation to abide by the judgments of the database: select “Resolutions” on the left of the ECtHR also comprises a duty of preventing new screen and search by application number and/ violations of the same kind as that or those or by the name of the case. For resolutions found in the judgment. General measures referring to grouped cases, they can be more which may be required include constitutional easily found by their serial number: type in the or legislative amendments, changes of the “text” search field, between brackets, the year national courts’ case-law (through the direct followed by NEAR and the number of the effect granted to the ECtHR’s judgments by resolution. Example: (2007 NEAR 75). domestic courts in their interpretation of the 1. Meeting specially devoted to the supervision of the exe- domestic law and of the Convention), as well as cution of judgments. practical measures such as the recruitment of 2. Replacing the Rules adopted in 2001.

37 Human rights information bulletin, No. 73 Council of Europe

First annual report (2007) on supervision of execution of judgments of the European Court of Human Rights

The Committee of Ministers of the Council of Hammarberg) and the Parliamentary Assembly Europe has just presented its first annual (represented on that occasion by its Secretary report on its supervision of the execution of the General, Mateo Sorinas) at a ceremony in Stras- judgments of the European Court of Human bourg on 25 March 2008. Rights, covering the period January-December The 264-page report contains an introduction 2007. by the 2007 Chairs of the Human Rights (HR) This report has been adopted pursuant to the meetings, some remarks by the Director new rules adopted by the Committee in 2006 General of Human Rights and Legal Affairs, an for the supervision of the execution of overview of the procedure before the judgments and of the terms of friendly settle- Committee of Ministers and a thematic ments. overview of the main issues examined by the The Permanent Representative of Slovakia Committee in 2007 (Appendix 1). It also (Ambassador Emil Kuchar) – the country contains a number of statistics (Appendix 2) which presently chairs the 47-member Organi- and information on different kinds of resolu- sation – and the Permanent Representative of tions adopted (final resolutions in Appendix 3 Sweden (Ambassador Per Sjögren) – the and interim resolutions in Appendix 4) as well country presently chairing the Committee of as information on memoranda and other Ministers’ Human Rights meetings, officially relevant public documents prepared handed over the report to the President of the (Appendix 5). European Court of Human Rights (Jean-Paul Costa), the Secretary General (Terry Davis), the The report in pdf format is available on both Human Rights Commissioner (Thomas the websites mentioned above.

1013th HR meeting – general information

During the 1013th meeting (3-5 December general measures to prevent similar violations 2007), the CM supervised payment of just satis- (e.g. constitutional and legislative reforms, faction in some 882 cases. It also monitored, in changes of domestic case-law and adminis- some 275 cases, the adoption of individual trative practice). The CM also started measures to erase the consequences of viola- examining 231 new ECtHR judgments and tions (such as striking out convictions from considered draft final resolutions concluding, criminal records, reopening domestic judicial in 80 cases respectively, that states had proceedings, etc.) and, in some 1189 cases complied with the ECtHR’s judgments. (sometimes grouped together), the adoption of

Main texts adopted

After examination of the cases on the agenda of the 1013th meeting, the Deputies have notably adopted the following texts.

Selection of decisions adopted

During the 1013rd meeting, the CM examined also expressed its assessment of the situation in 3117 cases and adopted a decision for each of detail in the decision. A selection of these them. Whenever the CM concluded that the decisions is presented below, according to the execution obligations had not yet been entirely (English) alphabetical order of the member fulfilled, it decided to resume consideration of state concerned. the case(s) at a later meeting. In some cases, it

38 First annual report (2007) on supervision of execution of judgments Council of Europe Execution of the Court’s judgments

Right of access to a court Jeličič against Bosnia and Herzegovina abrogated through the amendments made to violated because of non- the Old Foreign Currency Savings Act 2006; enforcement of a final do- Decision adopted at the 1013th meeting mestic judgment from 2. encouraged the authorities of Bosnia and 1998 ordering the state to 41183/02, judgment of 31/10/2006, final on release old savings ac- 31/01/2007 Herzegovina to provide further information on counts in foreign cur- The Deputies, other general measures; rency; also violation of property rights (viola- 1. noted with satisfaction that the legal obstacle 3. decided to resume consideration of this item tions of Art. 6 §1 and 1, preventing the enforcement of final domestic at the latest at their 1028th meeting (3-5 June Prot. 1). court decisions concerning “old” savings 2008) (HR), in the light of information to be denominated in foreign currency has now been provided on general measures.

Insufficient efforts Karadžič against Croatia 2. also noted with interest the intention of the seeking to reunite mother Croatian authorities to establish a special and child, abducted by the father, due to delays Decision adopted at the 1013th meeting working group for the elaboration of a draft law in the proceedings on ap- 35030/04, judgment of 15/12/2005, final on on the application of the 1980 Hague Conven- plication of the Hague 15/03/2006 tion; Convention and in the en- 3. invited the Croatian authorities to continue forcement of a decision The Deputies, ordering that the child to keep the Committee informed of the follow should be returned to his 1. noted with satisfaction the general measures up given to this project; mother (violation of Art. 8) already adopted by the Croatian authorities, 4. decided to resume consideration of this item namely the publication and dissemination of at the latest at their 1028th meeting (3-5 June the European Court’s judgment and the organ- 2008) (HR), in the light of further information isation of several seminars on the application of to be provided concerning general measures the 1980 Hague Convention; requested in this case.

Violation of the right to Havelka and others against the Czech concern, that the three minor applicants are respect for private and Republic still in public care, even though the situation is family life on account of regularly reviewed by the District Court of the fact that the appli- Decision adopted at the 1013th meeting cant’s three children had Prague 10; been taken into public 23499/06, judgment of 21/06/2007, final on care on the sole ground 21/09/2007 3. invited the Czech authorities to provide that the family’s eco- The Deputies, additional information in this respect and to nomic and social condi- continue their efforts to ensure full compliance tions were not 1. noted the information provided by the Czech with the judgment of the European Court; satisfactory (amongst authorities, in particular on the current situa- others, because of the tion of the applicants as well as on the general danger of eviction) (viola- 4. decided to resume consideration of this item tion of Art. 8). measures required in this case; at their 1020th meeting (4-6 March 2008) (HR), 2. underlined that the European Court has in the light of further information to be expressly stated in its judgment that the place- provided on payment of just satisfaction, if ment of the children in public care constituted necessary, and on individual and general a disproportionate measure in the particular measures, and to join it with the case of circumstances of the case and noted, with Wallovà and Walla.

Non-respect by a domes- Görgülü against Germany visiting rights in conformity with the European tic court of a father’s right Court’s judgment; to custody of and access to his child born out of Decision adopted at the 1013th meeting 2. noted that, after the interruption of the visits wedlock in 1999 and 74969/01, judgment of 26/02/2004, final on in September and October 2007, it had been placed in a foster home 26/05/2004, rectified on 24/05/2005 possible to resume contact between the appli- (violation of Art. 8). cant and his son and that three visits took place The Deputies, in November 2007; 1. noted with interest that following the last 3. decided to resume consideration of this item examination of this judgment at their 1007th at the latest at their 1028th meeting (3-5 June meeting (15-17 October 2007) (HR), the German 2008) (HR), in the light of further information authorities have undertaken a range of to be provided on the implementation of the measures, judicial and administrative in partic- measures announced to secure the exercise of ular, to ensure that the applicant may enjoy his visiting rights by the applicant.

Main texts adopted 39 Human rights information bulletin, No. 73 Council of Europe

Scozzari and others against Italy the child in the foster family and of the time Placement of the appli- which has elapsed since his initial placement; cant’s children into the Decision adopted at the 1013th meeting “Forteto” community and 39221/98+, judgment of 13/07/2000 - Grand 2. welcomed the co-operation between the failure to preserve family Belgian and Italian delegations and encouraged bonds through visits (vio- Chamber lation of Art. 8). Interim Resolutions ResDH (2001) 65 and them to pursue it in order to evaluate the ResDH (2001) 151 circumstances, making it possible to conclude The Deputies, that a resumption of contact between the applicant and her younger son has been made 1. agreed to close the aspect of the case possible by the Italian authorities; concerning the placement of the minor appli- cant, in view of the efforts accomplished and 3. decided to resume consideration of this item assurances given by the Italian authorities, of at their 1020th meeting (4-6 March 2008) (HR), the circumstances, currently different from in the light of developments between now and those described by the European Court in its then, and, according to them, to consider if judgment of 13 July 2000, of the development of possible a draft final resolution.

Luntre and others against Moldova and information on the programme’s implementa- Non-enforcement of final 19 other cases concerning the failure or tion; judgments delivered by domestic courts (viola- substantial delay by the administration tions of Art. 6 §1 and 1, c) invited the authorities to continue the or state companies in abiding by final Prot. No. 1). domestic judgments reflection on other useful measures in order to rapidly solve the general problem of non- Decision adopted at the 1013th meeting enforcement or delay in execution of domestic 2916/02, judgment of 15/06/2004, final on court decisions and to keep the Committee of 15/09/2004 Ministers informed of the outcome; The Deputies, 2. concerning the individual measures in the 1. concerning the questions related to the case of Popov, noted with satisfaction that the required general measures: Supreme Court upheld the initial final decision a) welcomed the positive responses given by the judgment of 17 January 2007, and invited during the meeting by the authorities the Moldovan authorities to provide the neces- concerned to the questions raised during the sary information on the implementation of this Round Table (Strasbourg, 21-22 June 2007) on judgment; the failure to enforce domestic judicial decisions by the public authorities; 3. decided to resume consideration of these b) took note with interest of the joint cases at their 1020th meeting (4-6 March 2008) programme launched by the European (HR), in the light of information to be provided Commission and the Council of Europe for on the payment of just satisfaction, if neces- Moldova 2006-2009 (on increased independ- sary, and at the latest at their 1028th meeting ence, transparency and efficiency of the justice (3-5 June 2008) (HR) in the light of information system), of which a major part is devoted to the to be provided on individual and general issue of non-enforcement of domestic judicial measures, if appropriate on the basis of a decisions and invited the authorities to provide memorandum prepared by the secretariat.

Reigado Ramos against Portugal 2. invited the authorities of the respondent Failure by the respondent state to intensify their efforts to help the state to take adequate Decision adopted at the 1013th meeting and sufficient action to parties to reach an agreement regarding locate the mother and the 73229/01, judgment of 22/11/2005, final on visiting rights and to provide the Committee child and to enforce the 22/02/2006 with regular information on this subject; applicant’s right of access to his child (violation of The Deputies, 3. decided to resume consideration of this case Art. 8). 1. took note of the positive developments since at their 1020th meeting (4-6 March 2008) (HR), the beginning of 2007 and of the information in the light of further information awaited on provided by the Portuguese authorities on the individual measures; follow up to the meeting of 20 June 2007 4. decided to resume consideration of this case between the parents, in particular concerning at their 1028th meeting (3-5 June 2008) (HR), in the planned psychological examinations of the the light of further information also awaited on mother and the child; general measures.

40 Main texts adopted Council of Europe Execution of the Court’s judgments

Cases concerning the con- Moldovan and others No. 2 against 3. invited the authorities to provide further sequences of racially mo- Romania and 3 other cases information on the progress of implementation tivated violence against of their undertakings and on the measures Roma between 1990 and Decision adopted at the 1013th meeting 1993: improper living taken or envisaged to fulfil the additional 41138/98+, judgment No. 1 of 05/07/2005, conditions following the obligations resulting from the Kalanyos and destruction of the appli- Friendly settlement Gergely judgments; cants’ houses (violation 41138/98+, judgment No. 2 of 12/07/2005, final of Art. 3 and 8); excessive on 30/11/2005 length of judicial pro- 4. decided to resume consideration of these ceedings (violation of The Deputies, items at their 1020th meeting (4-6 March 2008) Art. 6 §1); discrimination 1. recalled the General Action Plan and the (HR), in the light of the information to be based on the applicants’ Community Development Programme adopted Roma ethnicity (violation provided concerning the payment of just satis- of Art. 14, 3, 6 and 8). by the Romanian authorities to fulfil their faction, if necessary; undertakings in the Moldovan and others case, judgment No.1 (friendly settlement) and noted 5. decided to resume consideration of these the information provided during the meeting; cases at the latest at their 1028th meeting 2. observed that those undertakings may also (3-5 June 2008) (HR), in the light of the assess- serve as a basis for the supervision of the execu- ment of the information submitted and further tion of the Moldovan and others case, judgment information to be provided on individual and No. 2 (judgment on merits); general measures.

Non-enforcement by the Pântea Elisabeta against Romania general measures beyond the publication of the administration of a final judgment of the European Court; judicial decision of 2001 Decision adopted at the 1013th meeting ordering the registration 5050/02, judgment of 15/06/2006, final on of the applicant’s owner- 3. decided to resume consideration of this item ship in the land registry 15/09/2006 at their 1020th meeting (4-6 March 2008) (HR), (violation of Art. 6 §1). CM/Inf/DH (2007) 33 in the light of further information to be The Deputies, provided concerning payment of the just satis- 1. noted with concern that more than a year faction, if necessary; after the judgment of the European Court became final, no information has been 4. decided to resume consideration of this item submitted by the Romanian authorities at the latest at their 1028th meeting (3-5 June concerning the state of execution of the final 2008) (HR), in the light of further information domestic decision at issue in this case, namely to be provided concerning the execution of the the removal of a third party’s name from the final domestic decision as well as the analysis land registry; of the Romanian authorities of the reasons of 2. also noted that additional information was the violation and further general measures expected so as to assess the need for additional taken or envisaged, if appropriate.

Non-enforcement by Popescu Sabin against Romania and 16 3. considered, in addition, that an analysis by local authorities of do- other cases concerning the failure to the Romanian authorities of the causes of the mestic courts’ decisions ordering the restitution enforce final judicial decisions ordering refusal to execute is needed in order to deter- of land property national- the restitution of property nationalised mine whether complementary measures are ised or lost during the or lost during the communist period necessary; communist period (viola- tion of Art. 6 §1 and 1, Decision adopted at the 1013th meeting 4. also recalled in this context the conclusions Prot. No. 1). 48102/99, judgment of 02/03/04, final on of the Round Table on the non-enforcement of 02/06/04, rectified on 05/07/2004 final domestic decisions held in June 2007 in CM/Inf/DH (2007) 33 Strasbourg, in which the Romanian authorities The Deputies, took part; 1. noted with interest the information 5. decided to resume consideration of these submitted by the Romanian authorities items at their 1020th meeting (4-6 March 2008) concerning the 2005 reform related to the resti- (HR), in the light of further information to be tution of properties and the control of the local provided on payment of the just satisfaction, if authorities set up for this matter; necessary; 2. considered that clarification was necessary 6. decided to resume consideration of this on how this reform would remedy the problem group of cases at the latest at their 1028th of non-execution of decisions ordering restitu- meeting (3-5 June 2008) (HR), in the light of tion of property raised in these cases; further information to be provided on the

Main texts adopted 41 Human rights information bulletin, No. 73 Council of Europe current situation of some of the applicants and the outstanding issues concerning general measures.

Ruianu against Romania 2. invited the authorities to submit additional Non-enforcement of final Schrepler against Romania information in this respect, in particular the judicial decisions order- ing private persons to de- text of the relevant provisions; molish an illegally Decision adopted at the 1013th meeting 3 also recalled in this context the conclusions of construed building or to 34647/97, judgment of 17/06/2003, final on the Round Table on the non-enforcement of pay sums of money (viola- tion of Art. 6 §1). 17/09/2003 final domestic decisions held in June 2007 in 22626/02, judgment of 15/03/2007, final on Strasbourg, in which the Romanian authorities 15/06/2007 took part; CM/Inf/DH (2007) 33 4. decided to resume consideration of these items at their 1020th meeting (4-6 March 2008) The Deputies, (HR), in the light of further information to be 1. noted with interest the information provided concerning payment of the just satis- submitted by the Romanian authorities faction, if necessary; concerning the amendments introduced in the 5. decided to resume consideration of these Code of Civil Procedure by Law No. 459 items at the latest at their 1028th meeting (entered into force on 01/01/2007) concerning (3-5 June 2008) (HR), in the light of further the obligations and means at the disposal of information to be provided on the situation of bailiffs with respect to the execution of final the applicant in the Schrepler case and on domestic decisions; general measures.

Sacaleanu against Romania these cases and to submit an action plan in this Late execution or non- Orha against Romania respect; execution by public insti- tutions of the obligation 3. decided to resume consideration of these to pay certain sums of Decision adopted at the 1013th meeting items at their 1020th meeting (4-6 March 2008) money as established by 73970/01, judgment of 06/09/2005, final on (HR), in the light of further information to be final court decisions (vio- lation of Art. 6 §1). 06/12/2005 provided on payment of the just satisfaction, if 1486/02, judgment of 12/10/2006, final on necessary; 12/01/2007 4. decided to resume consideration of these CM/Inf/DH (2007) 33 items at the latest at their 1028th meeting The Deputies, (3-5 June 2008) (HR), in the light of further information to be provided concerning the 1. recalled the conclusions of the Round table Romanian authorities’ assessment of the situa- on the non-enforcement of final domestic tion at the national level and on the measures decisions, held in June 2007 in Strasbourg, in taken or envisaged in order to ensure that the which the Romanian authorities took part; public institutions enforce without delay the 2. invited the Romanian authorities to continue final domestic decisions, in particular if those their reflection on measures to be taken to impose on them the obligation of payment of avoid new violations similar to those found in certain sums of money.

Strungariu against Romania public authorities with respect to the enforce- Late enforcement of final Mihaescu against Romania ment of domestic judicial decisions; judicial decisions order- ing that the applicants be Decision adopted at the 1013th meeting 2. decided to resume consideration of these reinstated in their post items at their 1020th meeting (4-6 March 2008) within a public body (vio- 23878/02, judgment of 29/09/2005, final on lation of Art. 6 §1). 29/12/2005 (HR), in the light of further information to be 5060/02, judgment of 02/11/2006, final on provided concerning payment of the just satis- 26/03/2007 faction, if necessary; CM/Inf/DH (2007) 33 3. decided to resume consideration of these The Deputies, items at the latest at their 1028th meeting 1. noted the information submitted by the (3-5 June 2008) (HR), in the light of further Romanian authorities indicating that the information to be provided concerning the National Agency for Public Servants had been authorities’ assessment of the situation at informed of the obligations incumbent upon national level as well as on complementary

42 Main texts adopted Council of Europe Execution of the Court’s judgments

general measures possibly taken or envisaged to prevent new, similar violations.

Excessive length of civil Kormacheva against the Russian that the reform is in accordance with the proceedings (violation of Federation and 31 other cases of length of Convention’s requirements; Art. 6 §1); absence of an effective remedy (viola- civil proceedings and of lack of an 2. recalled, however, the Committee of Minis- tion of Art. 13). effective remedy ters’ constant position that the setting up of Decision adopted at the 1013th meeting domestic remedies does not dispense states 53084/99, judgment of 29/01/2004, final on from their general obligation to solve the struc- 14/06/2004, rectified on 29/04/2004 tural problems underlying violations; The Deputies, having considered the informa- 3. consequently invited the Russian authorities tion provided by the Russian authorities on the to pursue their efforts to ensure reasonable preparation of a draft law by the Supreme length of domestic proceedings and improve Court of the Russian Federation to introduce a material working conditions in Russian courts; domestic remedy in case of excessive length of 4. decided to resume consideration of these proceedings and enforcement proceedings, cases at their 1020th meeting (4-6 March 2008) 1. welcomed the initiative taken by the Russian (HR), in the light of information to be provided authorities and noted the intention of the on payment of just satisfaction, if necessary, on Russian authorities to organise consultations the progress of this draft law as well as on with the secretariat with a view to ensuring individual and general measures.

Poor conditions of pre- Popov against the Russian Federation new trial on the sole ground of the gravity of trial detention facilities charges; and in prison disciplinary Decision adopted at the 1013th meeting cells, combined with lack 26853/04, judgment of 13/07/2006, final on 3. took note of the information provided by the of adequate medical care, authorities on other individual measures amounting to inhuman 11/12/2006 and degrading treatment; The Deputies, required by the judgment, in particular of the restrictions of defence applicant’s refusal to undergo required medical 1. noted the information provided by the rights due to the authori- examinations, as well as on general measures; ties’ refusal to examine Russian authorities on the progress of the defence witnesses (vi- reopened proceedings in the applicant’s case 4. decided to resume consideration of this item olation of Art. 3, 6 §§1 following the judgment of the European Court; at their 1020th meeting (4-6 March 2008) (HR), and 3 (d)); Illicit pressure from the prison adminis- 2. noted however with concern that the appli- in the light of further possible information on tration amounting to cant is still in detention on remand pending his individual and general measures. undue interference with the applicant’s right of in- dividual petition (viola- tion of Art. 34).

Non-respect of final char- Ryabykh against the Russian Federation of judicial practice tend to ensure better acter of judicial decisions; and 31 other cases concerning the respect of the Convention’s requirements; quashing of final deci- sions by means of ex- quashing of final judgments through the 3. noted however that the present reform may traordinary proceedings supervisory review procedure need to be complemented by further steps to instituted by state official ensure full compliance with the Convention’s (violation of Art. 6§1). Decision adopted at the 1013th meeting requirements so as to eliminate the risk of new 52854/99, judgment of 24/07/2003, final on violations of the requirement of legal certainty 03/12/2003 in supervisory-review procedure and to CM/Inf/DH (2005) 20 increase the effectiveness of this procedure to The Deputies, having considered the law to remedy the violations of the Convention in a reform the supervisory-review procedure clear, predictable and timely manner; recently adopted by the parliament: 4. therefore encouraged the authorities to 1. welcomed the authorities’ recent efforts, pursue bilateral consultations with the secre- taken in response to the European Court’s tariat in the near future with a view to identi- judgments and Interim Resolution fying possible outstanding issues and prospects ResDH (2006) 1, to reform the supervisory- for further measures and/or reforms in this review procedure; area; 2. noted with interest that the measures taken 5. decided to resume consideration of these through both legislation and the development items at their 1020th meeting (4-6 March 2008)

Main texts adopted 43 Human rights information bulletin, No. 73 Council of Europe

(HR), in the light of information to be provided light of a draft interim resolution assessing the on the payment of the just satisfaction, if progress made in the adoption of general necessary and at the latest at their 1028th measures and identifying outstanding issues. meeting (3-5 June 2008) (HR), possibly in the

Tomić against Serbia her child as well as her possible request for Excessive length of the reopening of the domestic proceedings; process of execution of a final judgment granting Decision adopted at the 1013th meeting the applicant custody of 25959/06, judgment of 26/06/2007, final on 2. decided to resume consideration of this item her daughter, lack of an 26/09/2007 at their 1020th meeting (4-6 March 2008) (HR), effective remedy in this in the light of further information to be respect (violation of Art. 6 The Deputies, provided on individual measures as well as on §1 and 13). Violation of the applicant’s right to 1. invited the Serbian authorities to further general measures which are being examined in respect of her family life inform the Committee of the situation with the context of the case of V.A.M. (application on account of the non- respect to the applicant’s continued access to No. 39177/05) at this meeting. enforcement of the judg- ment (violation of Art. 8).

V.A.M. against Serbia 3. took note of the information concerning a Excessive length of law adopted with the aim of introducing a divorce and custody pro- Decision adopted at the 1013th meeting ceedings started in 1999 remedy before the Constitutional Court for and still pending and lack 39177/05 judgment of 13/03/2007, final on excessive length of proceedings; of an effective remedy 13/06/2007 (violations of Art. 6 §1, 13 and 8). Further violation The Deputies, 4. decided to resume consideration of this item at their 1020th meeting (4-6 March 2008) (HR), of right to respect of 1. recalled that the European Court expressly family life because of in the light of information to be provided on stated that the Serbian authorities “shall […], by non-enforcement of an individual measures; interim court order grant- appropriate means, enforce the interim access ing applicant access to order of 23 July 1999 and bring to a conclusion, 5. decided to resume consideration of this item her child (violation of with particular diligence, the ongoing civil at their 1028th meeting (3-5 June 2008) (HR), in Art. 8). proceedings”; the light of information to be provided on 2. called upon the Serbian authorities to ensure general measures, in particular on the effective that necessary measures are taken so the above application of the adopted Law on Constitu- request of the European Court is complied with tional Court in compliance with the Conven- rapidly; tion standards.

Bianchi against Switzerland 2. agreed consequently that no further Failure by the respondent individual measure was required in this case; state to take adequate and sufficient action to Decision adopted at the 1013th meeting enforce the applicant’s 7548/04, judgment of 22/06/2006, final on 3. decided to resume consideration of the only right to have his son (born 22/09/2006 remaining general measure, namely in the light in 1999) returned to Italy of the draft law concerning “the implementa- after abduction by the The Deputies, tion of the conventions on the international mother (violation of Art. 8). 1. noted with satisfaction that the action taken abduction of children as well as the adoption to find the applicant’s child had been and implementation of The Hague conventions successful and that the applicant and his child for the protection of children and adults”, at were now reunited; their 1020th meeting (4-6 March 2008) (HR).

A.D. against Turkey 2. decided to resume consideration of this case Detention of a military, at the latest at their 1028th meeting (3-5 June imposed by a superior officer (lieutenant- Decision adopted at the 1013th meeting 2008) (HR), in the light of information to be 29986/96 judgment of 22/12/2005, final on colonel), i.e. not by an provided on the progress achieved in the organ offering judicial 22/03/2006 adoption of this draft law. guarantees, for disobey- The Deputies, ing military orders (viola- tion of Art. 5 §1(a)). 1. took note of the information provided by the Turkish authorities concerning the proposed amendments to the criminal military code;

44 Main texts adopted Council of Europe Execution of the Court’s judgments

Fourteen violations in re- Cyprus against Turkey remedies in this regard need to be clarified and lation to the situation in accordingly invited the Turkish authorities to the northern part of Cyprus since the military Decision adopted at the 1013th meeting provide further information on these issues intervention by Turkey in 25781/94, judgment of 10/05/2001 - Grand and in particular to submit a copy of the July and August 1974 and Chamber relevant provisions and decisions; concerning: Greek- CM/Inf/DH (2007) 10rev4, CM/Inf/ Cypriot missing persons and their relatives; home DH(2007)10/1rev, CM/Inf/DH (2007) 10/3rev, On the issue of property rights of displaced and property of displaced CM/Inf/DH (2007) 10/6 persons: persons; living conditions Interim Resolutions ResDH (2005) 44 and of Greek Cypriots in CM/ResDH (2007) 25 5. noted with interest the additional informa- Karpas region of the tion provided by the Turkish authorities on the northern part of Cyprus; The Deputies, functioning of the Immovable Property rights of Turkish Cypriots Commission, established in the north of living in the northern part On the issue of missing persons: of Cyprus. Cyprus and invited them to continue to keep 1. noted with satisfaction the progress achieved the Committee informed on this subject; by the CMP as part of the Exhumation and 6. also noted the information provided by the Identification Programme and invited the Turkish authorities on the important role Turkish authorities to continue to keep the played by the construction sector in the Committee informed of the developments in economic situation in the north of Cyprus; this context; 2. noted also with great interest the informa- 7. noted, in addition, the information provided tion provided by the Turkish authorities on by the Cypriot authorities which was composed certain data which the families of missing of press clippings from the Turkish Cypriot persons can obtain when the remains of their media concerning in particular the situation of relatives are returned and invited the authori- the immovable properties situated in the ties to provided additional information on this north; issue; 8. observed that the information provided by 3. reiterated however their repeated invitation the Turkish authorities still does not answer to the Turkish authorities to provide informa- the request repeatedly made by the Committee tion on the additional measures required to for detailed and concrete information as ensure the effective investigations needed for regards the changes and transfers of property at the full execution of the Court’s judgment; issue in the judgment and the measures taken to safeguard the property rights of displaced On the issue of the property rights of the persons as these have been recognised in the enclaved persons: judgment of the Court;

4 taking note with interest of the information 9. instructed the secretariat to update the provided by the Turkish authorities following information document CM/Inf/DH (2006) 6/5 their finding contained in the decision adopted revised, so as to clarify the questions relevant at their 1007th meeting (October 2007), for the full execution of the judgment; concerning the property rights of the enclaved persons, noted that several issues relating to 10. decided to resume consideration of this case the regulation of these rights and available at their 1020th meeting (4-6 March 2008) (HR).

Unfairness of proceed- Hulki Günes against Turkey and two 46661/99 Söylemez, judgment of 21/09/2006, ings, ill-treatment of the other cases final on 21/12/2006 applicants while in police custody, (in the cases of The Deputies, Hulki Günes and Göçmen) Decision adopted at the 1013th meeting 1. in the case of Hulki Günes, adopted Interim lack of independence and Resolution CM/ResDH (2007) 150 as it appears impartiality of state secu- 28490/95, judgment of 19/06/2003, final on rity courts; (in the case of 19/09/2003 in the Volume of Resolutions; Göçmen) excessive length Interim Resolutions ResDH (2005) 113 and 2. decided to examine the implementation of of proceedings; (in the CM/ResDH (2007) 26 the present judgments at each Human Rights cases of Göçmen and Söylemez) absence of an 72000/01 Göçmen, judgment of 17/10/2006, meeting until the necessary urgent measures effective remedy (viola- final on 17/01/2007 are adopted. tion of Article 6 §1 and 6 §3, of Article 3 and of Article 13).

Main texts adopted 45 Human rights information bulletin, No. 73 Council of Europe

Institut de Prêtres français and others The Deputies, Judicial decision revoking against Turkey in 1994 the earlier recog- 1. invited the Turkish delegation to carry out nition of the applicants’ bilateral contacts with the secretariat with a property rights to certain Decision adopted at the 1013th meeting view to reaching a common understanding on religious property, the remaining outstanding issues; notably as the property 26308/95 judgment of 14/12/2000 - Friendly was partly used for com- settlement - Interim Resolution ResDH (2003) 2. decided to resume examination of this item mercial purposes; also 173 at their 1020th meeting (4-6 March 2008) (HR). non recognition of the ap- plicant’s legal personality (complaints under Article 9 and 1, Prot. No. 1); undertakings, no- tably, to give the usufruct of the property to the priests in charge of the in- stitution.

Loizidou against Turkey ties in response to the request repeatedly made Continuous denial of by the Committee of Ministers; access by the applicant to her property in the north- Decision adopted at the 1013th meeting ern part of Cyprus and 2. took note with interest of the response by the 15318/89, judgment of 18/12/1996 (merits) consequent loss of applicant on the merits of this offer and invited control thereof (violation Interim Resolutions DH (99) 680, DH (2000) of Art. 1, Prot. No. 1). 105, ResDH (2001) 80 the Turkish authorities to respond without undue delay and to keep the Committee The Deputies, informed on any development in this context;

1. welcomed the fact that an offer has been 3. decided to resume consideration of this case made to the applicant by the Turkish authori- at their 1020th meeting (4-6 March 2008) (HR).

Taskin and others; Öçkan and others; a) on individual measures, namely: In the cases of Taskin and Okyay Ahmet and others against Turkey others and Öçkan and - in the cases of Taskin and others and Öçkan others: violation of the and others: the outcome of the proceedings in applicants’ right to their Decision adopted at the 1013th meeting private and family life due annulment of the new permit and the enforce- to decisions by the execu- 46117/99 Taskin and others, judgment of ment of the decision of the Izmir Administra- tive authorities to allow, 10/11/2004, final on 30/03/2005, rectified on tive Court annulling the urban plan of the in 2001-2002, the re- 01/02/2005 mining area; sumption and continua- tion of a gold-mining 46771/99 Öçkan and others, judgment of 28/ operation likely to cause 03/2006, final on 13/09/2006 - in the case of Ahmet Okyay and others: the harm to the environment 36220/97 Okyay Ahmet and others, judgment installation without further delay of filter (violation of Art. 8) and in of 12/07/2005, final on 12/10/2005 mechanisms in the power plants, as ordered by this context also of their the domestic courts – see also Interim Resolu- right of access to court Interim Resolution CM/ResDH (2007) 4 because of the non- tion CM/ResDH (2007) 4; respect of a domestic The Deputies, court decisions ordering b) on additional general measures, in particular in 1996 the stay of pro- in order to prevent more effectively the non- considering the information submitted so far, duction at the gold mine enforcement of domestic court decisions in the (violation of Art. 6). decided to resume consideration of these cases area of environmental law; In the case of Okyay at their 1020th meeting (4-6 March 2008) (HR) Ahmet and others: gov- in the light of further information to be c) on the payment of just satisfaction in the ernment’s non- compliance with domes- provided: case of Öçkan and others. tic court decisions in 1996-1998 ordering sus- pension of activities of thermal power plants (operating under a joint venture with the govern- ment) polluting the envi- ronment (violation of Art. 6 §1).

46 Main texts adopted Council of Europe Execution of the Court’s judgments

Degrading treatment as a Ülke against Turkey 3. noted with interest that the draft law result of the applicant’s prepared aiming to prevent new violations of repetitive convictions Decision adopted at the 1013th meeting Article 3 similar to that found in the present between 1996 and 1999 39437/98, judgment of 24/01/2006, final on and imprisonment for case has now been transmitted to the prime having refused to 24/04/2006 minister’s office; perform compulsory mili- Interim Resolution CM/Res/DH (2007) 109 tary service on account of The Deputies, 4. called upon the Turkish authorities rapidly his convictions as a paci- to provide the Committee with information fist and conscientious ob- 1. noted that, since the adoption of Interim concerning the adoption of this draft law; jector (substantial Resolution CM/ResDH (2007) 109 in October violation of Art. 3). 2007, the applicant’s situation is unchanged; 5. decided to resume examination of this item 2. expressed concern that the applicant was still at their 1020th meeting (4-6 March 2008) (HR), facing the risk of imprisonment on the basis of in the light of information to be provided on a previous conviction; individual and general measures.

Violation of the right to Xenides-Arestis against Turkey 3. moreover took note of the positions of the respect for the applicant’s applicant and of the respondent state in this home (violation of Art. 8) Decision adopted at the 1013th meeting respect and of their intention not to request due to continuous denial 46347/99, judgments of 22/12/2005, final on the interpretation of this judgment by the of access to her property 22/03/2006 and of 07/12/2006, final on in the northern part of Court; Cyprus and consequent 23/05/2007 CM/Inf/DH (2007) 19 The Deputies, loss of control thereof (vi- 4. stressed, once again, that in any event and olation of Art. 1, Prot. 1. recalled the two divergent interpretations put No. 1) without prejudice to possible further clarifica- forward regarding what precisely was covered tions, the amounts awarded by the Court are by the amount awarded in respect of pecuniary due according to the modalities indicated in damage in the judgment of the European Court this judgment and urged Turkey to pay these of 7 December 2006 on the application of amounts without any delay; Article 41; 2. took note with concern of the reticence of the 5. agreed to resume consideration of the issues Turkish authorities to pay this amount since raised in this case at their 1020th meeting (4-6 they are not certain of what it covers; March 2008) (HR).

Prosecutor’s failure, in Gongadze against Ukraine report of the ad hoc investigating committee 2000, to his obligation to submitted to the Parliament of Ukraine on take adequate measures Decision adopted at the 1013th meeting 20 September 2005 on the murder of to protect the life of a 34056/02, judgment of 08/11/2005, final on journalist threatened by Mr Gongadze in which several state officials unknown persons, possi- 08/02/2006 were specifically designated as having been bly including police offic- The Deputies, having examined the informa- involved in the kidnapping and murder of the ers; inefficient tion provided by the Ukrainian authorities, investigation into the journalist; journalist’s subsequent 1. noted with regret that the criminal proceed- death; degrading treat- ings against three officers who allegedly 4. called upon the Ukrainian authorities to take ment of the journalist’s executed the kidnapping and murder of Mr rapidly necessary measures in order to bring wife on account of the at- Gongadze have been pending before the Kyiv the aforementioned court and investigating titude of the investigating proceedings to a close in line with the Conven- authorities; lack of an ef- City Court of Appeal since January 2006, tion requirements; fective remedy in respect 2. took note of the information provided on the of the inefficient investi- progress of the ongoing investigation aimed at gation and in order to 5. decided to resume consideration of this case obtain compensation (vi- the identification of the persons who had at their 1020th meeting (4-6 March 2008) (HR) olation of Art. 2, 3 ordered the kidnapping and murder of Mr in the light of new information to be provided and 13). Gongadze, in particular of the measures taken on the progress of individual and general to speed up this investigation; measures, if necessary, in the light of a draft 3. in this respect, noted that information is still interim resolution to be prepared by the secre- awaited on the possible follow up given to the tariat.

Main texts adopted 47 Human rights information bulletin, No. 73 Council of Europe

Salov against Ukraine improvement compared to the present situa- Delay in the judicial Savinskiy against Ukraine tion; review of the lawfulness of the applicant’s arrest in 1999 (violation of 2. strongly encouraged the competent Decision adopted at the 1013th meeting Art. 5 §3), numerous vio- Ukrainian authorities to rapidly adopt the draft lations of the applicant’s 65518/01, judgment of 06/09/2005, final on amendments at the second reading, taking into right to a fair trial notably 06/12/2005 due to structural prob- 6965/02, judgment of 28/02/2006, final on account observations and proposals made by lems regarding judicial in- 28/05/2006 the Venice Commission to the mentioned draft dependence and laws; impartiality and non- respect of requirements The Deputies, of legal certainty because 3. called upon the Ukrainian authorities to of the use in 2000 of su- 1. welcomed the adoption, at first reading, of pursue efforts for the adoption of further, pervisory review to set the draft amendments to the Law on the particularly legislative, measures necessary to aside a final procedural decision remitting the Judicial System of Ukraine and to the Law on prevent similar violations; case for additional inves- the Status of Judges aimed at securing the tigation (protest) (viola- independence of the judiciary, and noted in 4. decided to resume consideration of these tion of Art. 6 §1); furthermore, a violation this respect with satisfaction the Venice cases at the latest at their 1028th meeting of freedom of expression Commission’s conclusions that the funda- (3-5 June 2008) (HR), in the light of the infor- in the Salov case because mental provisions of both drafts are in line with mation to be provided on progress in the of a criminal conviction the European standards and are a clear adoption of the measures. for interference with the citizens’ right to vote as a result of the distribution of eight copies of a forged newspaper article in the context of the presiden- tial election campaign in 1999 (violation of Art. 10).

Sovtransavto Holding against Ukraine the European standards and are a clear Non-respect of final char- and other cases concerning the quashing improvement compared to the present situa- acter of judgments, inter- ference by the executive of final judgments through the tion; in pending court proceed- supervisory review procedure (protest) ings, unfairness of pro- 3. strongly encouraged the competent ceedings (violation of Art. Ukrainian authorities to rapidly adopt the draft 6§1), resulting violation Decision adopted at the 1013th meeting of the applicants’ prop- 48553/99, judgment of 25/07/2002, final on amendments at the second reading, taking into erty rights (violation of 06/11/2002 and judgment of 02/10/2003, final account observations and proposals made by Art. 1, Prot. No. 1). on 24/03/2004 (Article 41) the Venice Commission to the mentioned draft Interim Resolution ResDH (2004) 14 laws;

The Deputies, 4. noted that the adoption of other measures complementing this legislative reform, such as 1. encouraged the competent Ukrainian author- training of judges, awareness raising, and other ities to hold bilateral consultations with the legislative measures are being examined under secretariat with a view to clarifying possible the Salov group of cases; outstanding issues related to the reform of the supervisory-review procedure; 5. decided to resume consideration of these cases at their 1020th meeting (4-6 March 2008) 2. welcomed the adoption, at first reading, of the draft amendments to the Law on the (HR), in the light of information to be provided Judicial System of Ukraine and to the Law on on payment of the just satisfaction, if neces- the Status of Judges aimed at securing the sary, and at latest at their 1028 meeting independence of the judiciary, and noted in (3-5 June 2008) (HR), in the light of informa- this respect with satisfaction the Venice tion to be provided on individual and general Commission’s conclusions that the funda- measures and possibly on the basis of a draft mental provisions of both drafts are in line with final resolution.

48 Main texts adopted Council of Europe Execution of the Court’s judgments

Failure or serious delay by Zhovner and 217 other cases against to resolve the indebtedness problem so as to administration in abiding Ukraine concerning the failure or allow the honouring of outstanding debts, thus by final domestic judg- ments; absence of effec- substantial delay by the administration contributing to eliminating the need to lodge tive remedy in relation to or state companies in abiding by final complaints to the European Court, and encour- delays in the enforcement domestic judgments aged the Ukrainian authorities to take similar proceedings; violation of measures also in other sectors concerned; applicants’ right to pro- Decision adopted at the 1013th meeting tection of their property 56848/00 Zhovner, judgment of 29/06/2004, 5. thanked the Ukrainian authorities for infor- violation of Article 6, par- final on 29/09/2004 and other cases agraph 1, of Article 13 mation provided regarding measures taken to and of Article 1, CM/Inf/DH (2007) 30 (revised in English implement the Conclusions of the Round Table Protocol 1) only) and CM/Inf/DH (2007) 33 held in June 2007 in Strasbourg (CM/Inf/DH The Deputies, (2007) 33); 1. recalled that these judgments revealed an important structural problem affecting the 6. noted that further information on other legal system of Ukraine and causing a growing aspects raised in the conclusions as well as on number of applications before the European issues raised in the MemorandumCM/Inf/DH Court; (2007) 30 revised and, in particular, with regard to further developments and the outcome of 2. expressed concern that despite a number of the sector-specific measures would be legislative initiatives repeatedly brought to the welcomed; attention of the Committee of Ministers, no substantial progress had been made so far in 7. decided to resume consideration of these setting up or improving domestic procedures items at their 1020th meeting (4-6 March 2008) or the legislative framework; (HR), in the light of information to be provided 3. therefore urged the Ukrainian authorities on payment of the just satisfaction, if neces- rapidly to adopt the draft laws previously sary, on individual measures as well as on the announced before the Committee of Ministers, progress in the adoption of general measures, in particular the law on “the right to pre-trial possibly on the basis of a draft interim resolu- and trial proceedings as well as enforcement of tion, together with an updated version of the court decisions within a reasonable time”; memorandum mentioned above, taking stock 4. noted however with particular interest the of progress achieved and identifying rapid measures taken in the educational sector outstanding issues.

Action of security forces McKerr against the United Kingdom and The Deputies, in Northern Ireland in the other cases concerning the action of the 1980s and 1990s: short- 1. took note of the information provided by the comings in investigation security forces authorities of the United Kingdom on both of deaths; lack of inde- individual and general measures taken in these Decision adopted at the 1013th meeting pendence of investigating cases since the adoption of Interim Resolution police officers; lack of 28883/95, judgment of 04/05/2001, final on public scrutiny and infor- 04/08/2001 CM/ResDH (2007) 73 in June 2007; mation to victims’ fami- Interim Resolutions ResDH (2005) 20 and 2. decided to resume examination of these lies on reasons for CM/ResDH (2007) 73 cases at their 1020th meeting (4-6 March 2008) decisions not to prose- cute (procedural viola- CM/Inf/DH (2006) 4 revised 2 and CM/Inf/ (HR), in the light of a memorandum to be tions of Art. 2). DH (2006) 4 Addendum revised 3 prepared by the secretariat.

Interim resolutions (extracts)

During the period concerned, the Committee Committee of Ministers’ concern about the of Ministers encouraged, by different means, adequacy of measures undertaken or the the adoption of many reforms and also adopted failure to provide relevant information on an interim resolution. This kind of resolution measures undertaken; they may urge states to may notably provide information on adopted comply with their obligation to respect the interim measures and planned further reforms, Convention and to abide by the judgments of it may encourage the authorities of the state the Court or even conclude that the respondent concerned to make further progress in the state has not complied with the judgment. adoption of relevant execution measures, or An extract from the interim resolution adopted provide indications on the measures to be is presented below. The full text of the resolu- taken. Interim resolutions may also express the tion is available on the website of the Depart-

Interim resolutions (extracts) 49 Human rights information bulletin, No. 73 Council of Europe ment for the Execution of Judgments of the HUDOC database of the European Court of European Court of Human Rights, the Human Rights. Committee of Ministers’ website and the

Interim Resolution CM/ResDH (2007) 150 beyond the payment of just satisfaction, to Unfairness of criminal on the execution of the judgment of the grant the applicant, who is still serving his life proceedings on account of the lack of independ- European Court of Human Rights sentence, adequate redress for the violations ence and impartiality of Hulki Günes against Turkey found; the state security court (violation of Article 6 §1) adopted at the 1013th meeting Noting with grave concern that two similar and of the impossibility 28490/95, Hulki Günes against Turkey, cases, namely the cases of Göçmen and for the applicant to judgment of 19/06/2003, final on 19/09/2003, Söylemez, pending before the Committee also examine or to have exam- Interim Resolutions ResDH (2005) 113 and call for reopening of domestic proceedings ined the witnesses who testified against him (vio- CM/ResDH (2007) 26) because the applicants were deprived of their lation of Article 6 §1 and In this resolution, the Committee of Ministers right to a fair trial and are still serving their 3(d)) and inhuman and notably: (…) prison sentences; degrading treatment of the applicant while in Reiterating that […] the Court’s judgment Stressing that failure to adopt the necessary police custody (violation required the adoption of individual measures measures in the present case prevents the of Article 3) […]; possibility of reopening of proceedings in those Noting however that […] the Code of Criminal cases; Procedure still excludes the reopening of the Reiterating that a continuation of the present criminal proceedings in this case as in situation would amount to a manifest breach of numerous other cases pending before the Turkey’s obligations under Article 46, Committee for supervision of execution […]; paragraph 1, of the Convention; Recalling that the request for the reopening of FIRMLY RECALLED the obligation of the proceedings lodged by the applicant had been Turkish authorities under Article 46, rejected by domestic courts solely on the paragraph 1, of the Convention to redress the ground of this temporal limitation and without violations found in respect of the applicant; any assessment of the need for a new trial to remedy the specific violations found by the STRONGLY URGED the Turkish authorities to Court in the particular circumstances of the remove promptly the legal lacuna preventing case; the reopening of domestic proceedings in the […]; applicant’s case; Deeply deploring that, notwithstanding the DECIDED to examine the implementation of Committee’s two interim resolutions and the the present judgment at each human rights two letters from the Chair, no measures have meeting until the necessary urgent measures yet been taken by the Turkish authorities, are adopted.

Selection of Final Resolutions (summaries)

Once the CM has ascertained that the necessary which 12 took note of the adoption of new measures have been taken by the respondent general measures. Examples of extracts or state, it closes the case by a resolution in which it summaries from the resolutions adopted follow takes note of the overall measures taken to (for their full text, see the website of the Depart- comply with the judgment. During the 1013th ment for the Execution of judgments of the meeting, the CM adopted 23 final resolutions, ECtHR, the Committee of Ministers’ website or (closing the examination of 80 cases), among the HUDOC database).

Final Resolution CM/ResDH (2007) 152 - General measures Excessive length of Treial against Estonia certain civil proceedings Length of judicial proceedings: given that that (divorce and division of there is no systematic problem concerning the property) requiring adopted at the 1013th meeting length of proceedings in Estonia and that the special diligence (viola- 48129/99, judgment of 02/12/2003, final on Estonian courts give direct effect to the case- tion of Art. 6 §1) 02/03/2004 law of the ECtHR, publication and dissemina- tion of the judgment of the ECtHR are suffi- Individual measures cient measures to prevent new, similar viola- The proceedings ended in May 2006. tions. The judgment has been translated into

50 Selection of Final Resolutions (summaries) Council of Europe Execution of the Court’s judgments

Estonian, disseminated to all domestic courts proceedings to demand compensation for and prosecutors and published on the Internet. damage caused by such delays/inaction and the Effective remedy: anyone may file a complaint administrative courts have competence to before the administrative courts against delays order the payment of compensation. in judicial proceedings or inaction by the Moreover, the new code of civil procedure, courts. In doing so, he or she may rely on the which entered into force on 1 January 2006, relevant provisions of the constitution or of the provides a special appeal for parties to cases in ECHR as well as on the provisions of the code which a court adjourns the hearing without the of administrative procedure and the case-law of consent of the parties for more than three the supreme court. It is possible during such months.

Breach of the applicant’s Final Resolution CM/ResDH (2007) 153 - the basis of Article 41 of the ECHR”. The same right of access to a court Khalfaoui against France Law also provided that “As a transitional on account of the forfei- measure, applications for review (…) founded ture of his appeal on adopted at the 1013th meeting points of law, in applica- on a judgment delivered by the ECtHR prior to tion of Art. 583 of the 34791/97, judgment of 14/12/ 1999, final on publication of this law in the Official Gazette of 14/03/2000 code of criminal proce- the French Republic may be made within one dure, because he had not been exempted from sur- Individual measures year following publication.” The applicant did rendering to custody and A new Law of 15/06/2000, strengthening the not avail himself of this possibility. had not surrendered to protection of the presumption of innocence custody before the exam- General measures ination of his appeal on and victims’ rights, provides that “review of a The abovementioned new law strengthening points of law (violation of final criminal court decision may be requested Art. 6 §1). on behalf of any person found guilty of an the protection of the presumption of innocence offence where it emerges from a judgment and victims’ rights abrogated Articles 583 and delivered by the ECtHR that sentence was 583-1 of the code of criminal procedure passed in a manner violating the provisions of concerning the forfeiture of the right to appeal the ECHR or of the protocols thereto, if the on points of law for a person given a custodial nature and the gravity of the violation found sentence of more than six months, for failure to are such as to submit the sentenced person to surrender to custody or in the absence of an prejudicial consequences that could not be exemption from surrendering to custody. remedied by the just satisfaction awarded on This law entered into force on 16 June 2000.

Breach of the applicants’ Final Resolution CM/ResDH (2007) 154 - pertaining to him. The other applicants did not right of access to a court Poitrimol against France avail themselves of this possibility. and thus of their right to a fair trial, on account of and three other cases regarding the right the declaration of inad- to a fair trial General measures missibility ipso jure of their appeals by the court adopted at the 1013th meeting The judgments were published and the case- of cassation because they 14032/88, Poitrimol, judgment of 23/11/1993 law changed, putting the French law in had not complied with an 24767/94, Omar, judgment of 29/07/1998 conformity with the ECHR respectively in 1999 arrest warrant issued 25201/94, Guérin, judgment of 29/07/1998 against them by decision and in 2001. Following clarifications given by 31070/96, Van Pelt, judgment of 23/05/2000, of an appeal court against the ECtHR in the framework of a subsequent which they had lodged an final on 23/08/2000 appeal; the cases of Poit- case (Khalfaoui, judgment of 14/12/1999, final rimol and Van Pelt also Individual measures on 14/03/2000), the law was amended in June concern the applicants’ Following the introduction, in 2000, of a law 2000 and abrogated the provisions according to right to the assistance of a allowing for the review of criminal sentences which the failure to surrender to custody at the lawyer of their choice in appeal proceedings having been found contrary to the ECHR, (Law latest the day before the appeal hearing in the where the applicants No. 2000-516 of 15 June 2000), Mr Van Pelt court of cassation resulted in the right to themselves were not requested a review of the proceedings appeal on points of law being forfeited. present (violation of Art. 6 §1)

Selection of Final Resolutions (summaries) 51 Human rights information bulletin, No. 73 Council of Europe

Final Resolution CM/ResDH (2007) 155 - fied delay in this sort of proceedings requiring Excessive length of pro- Intrieri against Italy special diligence. ceedings brought by the applicant against a judi- The C.S.M also decided to include the subject cial decision declaring her adopted at the 1013th meeting of human rights and the ECtHR’s case-law in son eligible to be adopted 16609/90, Interim Resolution DH (97) 50 of the curricula of all initial training courses for and thereby suspending her parental rights and 28/01/1997 junior judges, in the annual programme of in- her contacts with the Individual measures service training and in that of decentralised child (violation of Art. 8). training courses. The proceedings at issue in this case had Furthermore, in May 2001, it promoted the already ended when the violation of the ECHR organisation of seminars, both at national and was found. They did not lead to a final decision local level, aimed at training persons working on the merits, as the applicant’s son had in the in the field of family law, and in particular the meantime become of age. Subsequently, he judges of the youth courts, on the requirements returned to live with the applicant. of the ECHR, as interpreted in the Strasbourg’s General measures case-law in this field. As regards the more general problem of the Awareness-raising measures have been adopted functioning of judicial system in Italy, the to prevent, as much as possible, new violations government reaffirmed its commitment to similar to that found in the present case. prepare at the latest by 1 November 2008 a new Firstly, the Italian Supreme Judicial Council effective strategy and to keep the CM regularly (C.S.M.) adopted, in July 2000, a resolution informed of the reflections concerning the addressed to judges and managers of judicial strategy to be implemented and the progress bodies underlining the need to take any appro- made in this regard (see Resolutions (97) 336, priate measure in order to prevent any unjusti- (99) 437, (2000) 135, (2005) 114 and (2007) 2).

Final Resolution CM/ResDH (2007) 156 - correctly between facts and value judgments, Civil conviction of jour- Busuioc against Moldova and Savitchi as required by the well-established case-law nalists for defamation of civil servants (violation of against Moldova under Article 10 of the ECHR. Consequently, a Art. 10). change in domestic courts’ practice in this adopted at the 1013th meeting respect appears to be necessary. 61513/00, judgment of 21/12/2004, final on 21/03/2005 To this end, and taking into account the direct 11039/02, judgment of 11/10/2005, final on effect afforded by the Moldovan authorities to 11/01/2006 judgments of the ECtHR, the judgments of the ECtHR have been translated, published and Individual measures disseminated to all relevant authorities. In both cases, the ECtHR awarded just satisfac- tion in respect of pecuniary and non-pecuniary Furthermore, on 15-16 November 2005, the damage, as well as all the costs incurred in Moldovan Ministry of Justice organised, connection with the convictions. together with the Council of Europe, a seminar for Moldovan judges on the application of General measures Article 10 of the ECHR. Moreover, out of the 23 The violations found in the present cases arise civil cases in which the Supreme Court of from the fact that, when deciding on the Justice directly applied the case-law of the allegations of defamation brought before ECtHR in 2005, five cases concerned Article 10 them, the domestic courts did not distinguish of the ECHR.

52 Selection of Final Resolutions (summaries) Council of Europe Execution of the Court’s judgments

Breach of the applicants’ Final Resolution CM/ResDH (2007) 157 - damage sustained as a consequence of the right to a fair hearing and Josan and Macovei and others against annulment. to the peaceful enjoy- ment of possessions as a Moldova In the Macovei case, the European Court result of quashing a final granted the applicants just satisfaction in judgment favourable to the applicant (case Josan) adopted at the 1013th meeting respect of the pecuniary damage (covering the and of the adoption of a 37431/02, judgment of 21/03/2006, final on pension arrears due) and non-pecuniary decision in favor of the 21/06/2006 damage sustained. counterpart rendering in- 19253/03, and 25/04/2006, final on effective a final judgment General measures favourable to the appli- 25/07/2006 cants (case Macovei and These cases present similarities to the Roşca others) (violations of Individual measures case (judgment of 22 March 2005, closed with Article 6 §1 and Article 1 of Protocol No. 1). Resolution CM/ResDH (2007) 56) for which In the Josan case, the Supreme Court of Justice the Moldovan authorities have already adopted ordered the reopening of the case. When the the necessary general measures. The law in European Court of Human Rights pronounced force at the material time has since been its judgment, these proceedings were still repealed by the new Code of Civil Procedure pending. The European Court granted the which entered into force on 12 June 2003. applicant just satisfaction in respect of Under the new code, final judgments may no pecuniary damage (covering the payment of longer be annulled on the basis of an annul- 155 868 MDL plus interest) and non-pecuniary ment lodged by the prosecutor general.

Different violations of de- Final Resolution CM/ResDH (2007) 158 - These reforms have subsequently been incor- tainees’ rights under the Emil Hristov against Bulgaria and eight porated into the new Code of Criminal Proce- system of pre-trial deten- tion in force until the leg- other cases concerning the system of pre- dure, which came into force on 29 April 2006. islative reform of trial detention in force until the 01/01/00 (violations of legislative reform of 1 January 2000 As to the violations not covered by these Art. 5 §1, 5 §3, 5 §4 and reforms, the government considers that the 6 §1). adopted at the 1013th meeting direct effect of the case-law of the ECtHR, 52389/99, judgment of 20/10/2005, final on recognised by the Bulgarian courts, will lead to 20/01/2006 the prevention of similar violations in the Individual measures future. No individual measures over and above the The government in particular expects the payment of the just satisfaction were required courts to ensure henceforth the adversarial in these cases. The applicants have been nature of appeal proceedings concerning appli- released or were no longer in pre-trial deten- cations for release, even if this is not explicitly tion when the ECtHR delivered its judgments. foreseen in the legislation. In addition, the criminal proceedings in the Ilijkov case, which the ECtHR had held to be To ensure that the courts concerned are excessively long, came to an end in 1999. adequately informed of the ECHR require- ments, the Ministry of Justice has sent trans- General measures lated copies of the judgments to the presidents Measures have already been taken in response judges of the regional courts, asking them to to a number of violations were already in the draw the attention of all judges dealing with context of the execution of the case Assenov pre-trial detention matters to its content. and others (see Final Resolution (2000) 109), Bulgarian translations of the judgments are notably the reform of the Code of Criminal also available on the Ministry of Justice Procedure, which took effect on 1 January 2000. website.

Internet: – Website of the Department for the Execution of Judgments: http://www.coe.int/Human_Rights/execution/ – Website of the Committee of Ministers: http://www.coe.int/cm/

Selection of Final Resolutions (summaries) 53 Committee of Ministers

The Council of Europe’s decision-making body comprises the Foreign Affairs Ministers of all the member states, who are represented – outside the annual ministerial sessions – by their Deputies in Strasbourg, the Permanent Representatives to the Council of Europe.

It is both a governmental body, where national approaches to problems facing European society can be discussed on an equal footing, and a collective forum, where Europe-wide responses to such challenges are formulated. In collaboration with the Parliamentary Assembly, it is the guardian of the Council’s fundamental values, and mon- itors member states’ compliance with their undertakings.

Protection of children against sexual exploitation and abuse

Taking action to protect children as part commitment is the launching of the pro- Reply to Parliamentary of the programme Building a Europe for gramme “Building a Europe for and with chil- Assembly Recommenda- tion 1778 (2007) “Child and with children dren” in April 2006. victims: stamping out all The Committee of Ministers wishes to stress The Committee of Ministers supports the call forms of violence, exploi- the importance it attaches to this issue and its of the Parliamentary Assembly to member tation and abuse” commitment to protect children from all forms states to sign and ratify existing international of violence, exploitation and abuse. In the and European legal instruments relating to the Council of Europe member states as a whole, protection of children against all forms of vio- around 155 million individuals are below the lence, exploitation or abuse, as enumerated in age of 18. It is a population that is particularly the recommendation and Resolution 1530 vulnerable, and often defenceless when subject (2007). The Committee of Ministers also recalls to violence. The Council of Europe has long the case-law of the European Court of Human been concerned with the protection of children Rights concerning children’s rights and in par- and the priority to be given to the protection of ticular the right of children to be protected children was duly reflected in the Warsaw against violence, as well as national case-law Action Plan, of which the relevant points are implementing the European Convention on being implemented through diverse and con- Human Rights and other international instru- crete activities. One prime example of this ments.

Secret detentions involving Council of Europe member states

The Committee of Ministers has always under- ments for the protection of human rights and, Reply to Parliamentary lined the need to promote democratic values for the member states in particular, the Con- Assembly Recommenda- tion 1801 (2007) “Secret and the respect of human rights in the fight vention for the Protection of Human Rights detentions and illegal against terrorism. Less than a year after the and Fundamental Freedoms and the case-law transfers of detainees in- events in New York on 11 September 2001, the of the European Court of Human Rights. The volving Council of Europe Committee adopted guidelines for member guidelines have been widely disseminated and member states: second report “ states on human rights and the fight against have served as an inspiration for discussions at terrorism. In these guidelines, it reaffirmed international level. In 2005, the Committee of states’ obligation to respect, in their fight Ministers adopted and opened for signature against terrorism, the international instru- the Council of Europe Convention on the pre-

54 Protection of children against sexual exploitation and abuse Council of Europe Committee of Ministers

vention of terrorism: a landmark treaty in this vant case-law of the European Court of Human area. Rights, the responsibility of a state party for the material breach of the provisions of the Con- The Committee of Ministers has taken due note vention may not only result from direct action of the reports by the Parliamentary Assembly by its authorities, but also from failing to which contain allegations of serious human comply with their positive obligations to rights violations. Moreover, these reports and prevent human rights violations on their terri- those by the Secretary General mention certain tory or to conduct an independent and impar- lacunae in the internal laws of member states, tial investigation into substantial allegations of which do not seem to offer sufficient protec- such human rights violations. tion against such violations. It recalls the exist- ing obligations under the European Convention on Human Rights (ECHR), accord- The Committee of Ministers recalls the Inter- ing to which prompt and effective investiga- national Convention for the Protection of All tions capable of leading to the identification Persons from Enforced Disappearance, opened and punishment of those responsible for any for signature on 6 February 2007, the entry into illegal acts is the most appropriate reaction to force of which would significantly contribute serious allegations of grave human rights viola- to combating the practice of enforced disap- tions. It also recalls that, according to the rele- pearances.

Rapid execution of judgments of the European Court of Human Rights

Recommendation CM/ The need to reinforce domestic capacity • facilitate the adoption of any useful meas- Rec (2008) 2 of the Com- to execute the Court’s judgments ures to develop effective synergies between mittee of Ministers to member states on effi- relevant actors in the execution process at cient domestic capacity The Committee of Ministers, convinced that national level either generally or in response for rapid execution of rapid and effective execution of the Court’s to a specific judgment, and to identify their judgments of the Euro- judgments contributes to enhancing the pro- respective competences; pean Court of Human tection of human rights in member states and Rights to the long-term effectiveness of the European • rapidly prepare, where appropriate, action human rights protection system; recommends plans on the measures envisaged to execute that member states: judgments, if possible including an indica- tive timetable; • designate a co-ordinator – individual or • take the necessary steps to ensure that rele- body – for the execution of judgments at na- vant actors in the execution process are suf- tional level, with reference contacts in the ficiently acquainted with the Court’s case- relevant national authorities involved in the law as well as with the relevant recommen- execution process. dations and practice of the Committee of • ensure, whether through their permanent Ministers; representation or otherwise, the existence • disseminate the vademecum prepared by of appropriate mechanisms for effective dia- the Council of Europe on the execution logue and transmission of relevant informa- process to relevant actors and encourage its tion between the co-ordinator and the use, as well as that of the database of the Committee of Ministers; Council of Europe with information on the state of execution in all cases pending before • take the necessary steps to ensure that all the Committee of Ministers; judgments to be executed, as well as all related decisions and resolutions of the • as appropriate, keep their parliaments in- Committee of Ministers, are duly and formed of the situation concerning execu- rapidly disseminated, where necessary in tion of judgments and the measures being translation, to the relevant actors in the ex- taken in this regard; ecution process; • where required by a significant persistent • identify, as early as possible, the measures problem in the execution process, ensure which may be required in order to ensure that all necessary remedial action be taken rapid execution; at a high, possibly political, level.

Rapid execution of judgments of the European Court of Human Rights 55 Human rights information bulletin, No. 73 Council of Europe

The protection of human rights defenders and the promotion of their activities

The Committee of Ministers of the Council of the work of human rights defenders, enabling Declaration of the Com- Europe deplores the fact that human rights de- individuals, groups and associations to freely mittee of Ministers on Council of Europe action fenders, including journalists, are all too often carry out activities, on a legal basis, consistent to improve the protection victims of violations of their rights, threats and with international standards, to promote and of human rights defend- attacks, despite efforts at both national and in- strive for the protection of human rights and ers and promote their ac- ternational levels. It considers that human fundamental freedoms without any restric- tivities rights defenders merit special attention, as tions other than those authorised by the Euro- such violations may indicate the general situa- pean Convention on Human Rights. tion of human rights in the state concerned or The Committee of Ministers calls on all a deterioration thereof. Council of Europe bodies and institutions to It pays tribute to their invaluable contribution pay special attention to issues concerning for promoting and protecting human rights human rights defenders in their respective and fundamental freedoms and condemns all work. This shall include providing information attacks on and violations of the rights of and documentation, including on relevant human rights defenders in Council of Europe case-law and other European standards, as well member states or elsewhere, whether carried as encouraging co-operation and awareness- out by state agents or non-state actors. raising activities with civil society organisa- The Committee of Ministers calls on member tions and encouraging human rights defenders’ states to create an environment conducive to participation in Council of Europe activities.

Slovakian chairmanship of the Committee of Ministers

Priorities for the chairmanship to develop a set of generic e-democracy tools Priorities for the Slova- and guidelines on the scope and implementa- kian chairmanship of the On 12 November 2007 Slovakia took over the Committee of Ministers chairmanship of the Committee of Ministers, tion of e-democracy; which it will hold until May 2008. Slovakia’s c. the Slovakian Chairmanship will support the priorities for this period will be based around early adoption of a draft convention on access three broad themes: to official documents.

2. A transparent and efficient Council of Europe; a. in order to guarantee complementarity and synergy between the main European organisa- tions, Slovakia will aim to further promote dia- logue, exchange of experiences and good practices and to improve the co-ordination of activities; b. the Slovakian chairmanship will support the ongoing work aimed at strengthening the Mr Ján Kubiš, Chairman-in-office of the Committee of Min- system of human rights protection of the isters Council of Europe, in particular the European Court of Human Rights, the Council of Europe 1. Promoting a citizens’ Europe: Commissioner for Human Rights, the Euro- a. the Slovakian Chairmanship will emphasise pean Committee for the Prevention of Torture the Council of Europe’s need for openness, en- and the European Commission against Racism gagement, responsibility and efficiency as well and Intolerance. as its need for solidarity with non- governmental organisations and civil society in 3. Respect for and promotion of core values: relation to its activities and further develop- human rights, rule of law and democracy. ment; a. the Slovakian Chairmanship will strive to b. it will seek to implement the recommenda- ensure the fulfillment of commitments relat- tions concerning the functioning of the Forum ing to shared values and standards which for the Future of Democracy and support the Council of Europe member states have signed work of the Ad hoc Committee on e-democracy up for;

56 The protection of human rights defenders and the promotion of their activities Council of Europe Committee of Ministers

b. it will lead efforts in the fight against dis- of minorities and the fight against racism and crimination, racism, anti-Semitism, xenopho- intolerance as well as against social exclusion. bia, extreme nationalism and chauvinism, and The Slovakian Chairmanship will end in May will promote the truth about the Holocaust; 2008. Over the next six months, Slovakia will c. Slovakia will pursue the objective of a peace- organise a number of conferences and semi- ful, secure and socially responsible Europe and nars, in Bratislava and elsewhere. Some of the the development of mutually beneficial co- major events to be noted: operation, at European and international level; • 8th Conference of European Health Minis- d. it will support both the strengthening of se- ters: “People on the move: human rights and curity and stability in the western Balkans and challenges to health systems” (22 – 23 No- eastern Europe, and the further deepening of vember, Bratislava) the European integration process; • Conference on crimes committed by chil- e. the Slovakian Chairmanship will support the dren and against children: “Children and full use of all assistance and co-operation pro- antisocial action” (29 November, Bratislava) grammes of the Council of Europe that would change Belarus’ attitude with respect to • International educational seminar: “From meeting the criteria for membership; sport to knowledge” (2 - 3 April, Pieštany) f. it will take advantage of the 10th anniversary • Conference: “Education and training of of the entry into force of the Framework Con- Roma children and youth“ (8 - 9 April, Bra- vention for the Protection of National Minori- tislava) tiesto to support the continuation and • Conference: “Citizens at the centre of the development of the activities for the protection local democracy“ (April, Pieštany)

Statement by Ján Kubiš, International Human Rights Day into force 10 years ago, to maintaining demo- Chairman-in-office of the cratic stability on the European continent. Committee of Ministers “On this solemn day, aiming to promote human on International Human rights protection all over the globe, I would like Europe can be proud of this achievement, but Rights Day, 10 December to underline that human rights and fundamen- must be vigilant that it is not eroded. 2007 tal freedoms form the basis for tolerant and peaceful societies. Their promotion and pro- Groups such as Roma and Travellers, living as tection belong to the core values, upon which minorities in almost all Council of Europe the Council of Europe is built. It is our common member states, continue to face discrimina- responsibility to strive for their effective reali- tion, prejudice and hostile attitudes in many sation because there is no future without full states. Their social and living conditions respect for human rights. (access to housing, education, employment, We will focus our attention on the protection health care, etc.) show that their human rights of the rights of persons belonging to minori- are not always fully secured in practice. The ties, and we must spare no efforts to ensure Council of Europe member states have a duty that these rights are firmly secured. to address this challenge and the Slovakian The Framework Convention for the Protection Chairmanship will pay particular attention to of National Minorities is an important legal measures that could improve the situation of text that has contributed greatly, since its entry Roma and Travellers.”

Statement by Ján Kubiš, International Holocaust Remembrance Ministers, re-affirmed the commitment of his Chairman-in-office of the Day country to continue to combat all forms of Committee of Ministers on International Holo- Meeting in Strasbourg in 2002, the European racial, ethnic, religious and political intoler- caust Remembrance Day Ministers of Education decided to set up a “Day ance and discrimination. Recalling that it was 2008 of Remembrance of the Holocaust and for the the horrors of the Second World War that led prevention of crimes against humanity”. This to the Council of Europe being founded, day has since been celebrated on 27 January Mr Kubiš underlined the Organisation’s funda- every year and the idea has also been taken up mental role in fighting the phenomena that led by the United Nations, which has declared it an to these atrocities. international day of remembrance. For these reasons, the Slovakian Chairmanship On the occasion of the International Holocaust of the Committee of Ministers intends to inten- Remembrance Day 2008, Ján Kubiš, Minister of sify co-operation between the Council of Foreign Affairs of Slovakia and Chairman-in- Europe and the Task Force for International office of the Council of Europe’s Committee of Co-operation on Holocaust Education, Re-

Slovakian chairmanship of the Committee of Ministers 57 Human rights information bulletin, No. 73 Council of Europe membrance and Research (ITF). A ceremony in the Council of Europe on International Holo- honour of the Holocaust victims was held at caust Remembrance Day.

Co-operation between the Council of Europe and the European Union

As part of the dialogue and co-operation “It is clear that the Council of Europe and the Visit by Dimitrij Rupel, between the Council of Europe and the Euro- European Union are good partners. The Slove- the Foreign Minister of Slovenia, to the Council of pean Union, Dimitrij Rupel, the Foreign Minis- nian Presidency will work hard on the en- Europe, 30 January 2008 ter of Slovenia, visited Strasbourg on 30 January hancement of the co-operation between the 2008 to present the main themes of Slovenia’s two institutions, in line with our presidency's EU presidency to the Ministers’ Deputies. slogan ‘Si.nergy for Europe,’” Mr Rupel con- Mr Rupel drew attention to: cluded. - the ratification of the Lisbon Treaty, which will allow the EU to become a signatory to the The Deputies noted with satisfaction the con- European Convention on Human Rights; crete intentions for co-operation with the - the European future for the western Balkans, Council of Europe and specific areas in which for which the Council of Europe has made an it could develop. important contribution, especially in Kosovo; - the dialogue between cultures, religions and A Memorandum of Understanding was agreed in traditions, underlining the major importance Spring 2007 between the Council of Europe and of the White Book on inter-cultural dialogue the European Union, with the aim of promoting currently being prepared by the Council of dialogue and co-operation between the two or- Europe. ganisations.

Internet: http://www.coe.int/cm/

58 Co-operation between the Council of Europe and the European Union Parliamentary Assembly

“The members of our Assembly directly represent 800 million citizens. 800 million people with different cul- tures, different nationalities, a wide range of political views and religious beliefs, but who are united by common values. Values that are embodied in the Council of Europe’s standards and principles. Values that can strengthen social cohesion in our societies and further peace and stability on our continent.

The Council of Europe is a vital international organisation with a remarkably active and concerned Parliamen- tary Assembly. This is our capital, our richness, in which we should invest for the peace and welfare of Europe.”

Lluís Maria de Puig, President of the Assembly

Evolution of human rights

Developments as regards the future status of Kosovo

Resolution 1595 and Rec- The Parliamentary Assembly considers the so- In Resolutions 1453 (2005) and 1533 (2007) on ommendation 1822, lution of the Kosovo status process as a funda- the current situation in Kosovo, the Assembly adopted on 22 January 2008 (Docs 11472 and mental element for ensuring peace and long- affirmed the importance of reaching a 11498) term stability in Europe. Determining the mutually-accepted solution to the status issue. future status of Kosovo is a highly sensitive po- However, the Assembly is keen to stress that the undecided status of Kosovo casts uncer- litical issue, which includes legal and human tainty over the further political stabilisation of rights aspects, with serious regional and wider the entire region, including its perspective of international implications and it is a challenge European integration: it affects its economic for the international community. The Assembly recovery; it has a negative impact on the con- also underlines the pressing need to ensure the solidation of a fully responsible and accounta- full implementation of standards in the field of ble political leadership and hampers the full democracy, rule of law and human rights for all implementation of the “Standards for Kosovo”; people in Kosovo, regardless of their ethnic as well as individual access to the European origin. Court of Human Rights.

The President of the Parliamentary Assembly urges all parties to maintain peace in Kosovo

Response by Lluís Maria In reaction to Kosovo’s unilateral declaration of rights, the rule of law, the rights of national mi- de Puig to Kosovo’s uni- independence, Lluís Maria de Puig, President norities and the treatment of refugees, dis- lateral declaration of in- dependence on of the Council of Europe Parliamentary Assem- placed and stateless persons. 17 February 2008 bly, called on all parties to keep their pledge to preserve peace and dialogue in all circum- “Whatever its status, Kosovo should be an area stances and to refrain from any incitement to which is safe for all those who live in it, regard- violence as well as to fully comply with Council less of their ethnic origin, and in which the of Europe standards with respect to human values of democracy, tolerance and multicul-

Evolution of human rights 59 Human rights information bulletin, No. 73 Council of Europe turalism are shared by its population and insti- as the Assembly has repeatedly called for,” he tutions,” he said. said.

Recalling the texts adopted by PACE on 22 Jan- uary, Mr de Puig stressed the need for Kosovo to be an area where Council of Europe instru- ments such as the European Convention on Human Rights, the European Anti-Torture Convention and the Framework Convention for the Protection of National Minorities are fully applicable and their respective control mecha- nisms fully operational.

On the subject of the EU’s attitude to Kosovo’s Mr Lluís Maria de Puig, President of the Parliamentary As- unilateral declaration of independence, the sembly President invited EU member states, who are “I regret that the two sides have been unable to also members of the Council of Europe, to reach a compromise on the status of Kosovo – agree on a single position.

United Nations Security Council and European Union blacklists

The Parliamentary Assembly reaffirms its posi- At the same time, targeted sanctions (such as Recommendation 1824 tion that terrorism can and must be fought ef- travel restrictions and freezing of assets) have a and Resolution 1597, adopted on 23 January fectively with means that respect and preserve direct impact on individual human rights such 2008 (Doc. 11454) human rights and the rule of law. as personal liberty and the protection of prop- It considers that international bodies such as erty. Whilst it is not at all clear and still being the United Nations and the European Union debated whether such sanctions have a crimi- should set an example for states in this respect, nal, administrative or civil character, their im- given the lofty goals laid down in their found- position must, under the European Convention ing instruments and the credibility they need on Human Rights (ECHR) as well as the Inter- in order to attain those goals. national Covenant on Civil and Political Rights, Targeted sanctions against individuals or spe- respect certain minimum standards of proce- cific groups (“blacklists”) imposed by the dural protection and legal certainty. United Nations Security Council (UNSC) and the Council of the European Union (EU) are, in The Assembly reminds all member states of the principle, preferable to general sanctions Council of Europe that they have signed and imposed on states. General sanctions often ratified the European Convention on Human have dire consequences for vulnerable popula- tion groups in the countries concerned, and Rights and its protocols and have therefore generally not for their leadership, whilst tar- committed themselves to uphold its principles, geted sanctions hurt only those alleged to be and this also applies to the implementation of personally responsible for certain wrongdo- sanctions imposed by the United Nations and ings. the European Union.

Video surveillance of public areas

The Parliamentary Assembly notes that video concerned by the fact that video surveillance Resolution 1604 and Rec- surveillance is an increasingly widespread phe- may impinge on human rights such as the pro- ommendation 1830, adopted on 25 January nomenon in public places. tection of privacy and data protection. In the 2008 (Doc. 11478) Rapidly evolving technology and a growing light of, in particular, Article 8 of the European feeling of insecurity in the general population Convention on Human Rights (the Conven- have gradually increased public acceptance of tion) which guarantees the right to respect for video surveillance as a useful tool in the private life, video surveillance should remain context of crime prevention and detection. an exceptional measure prescribed by law and Whilst welcoming the increasingly efficient only in cases where it is necessary in a demo- use of new technologies to protect public order cratic society to protect the interests of na- and security in Europe, the Assembly remains

60 Evolution of human rights Council of Europe Parliamentary Assembly

tional security or public safety, or for the prevention or detection of disorder or crime.

Situation of human rights in member and observer states

Honouring of obligations and commitments by Georgia

Resolution 1603, adopted Whilst welcoming the broad reform agenda of on 24 January 2008 the authorities, the Assembly considers that (Doc. 11502) specific measures need to be taken in order to accelerate the political reforms that will even- tually transform Georgia into a stable and pros- perous European democracy.

President Saakashvili should now do his utmost to strengthen democratic freedoms in Georgia, institute checks and balances and seek consensus. Georgia should also continue to seek a peaceful and democratic settlement of Mr Mikheil Saakachvili, President of Georgia the conflicts in Abkhazia and South Ossetia.

Japan considers moratorium on the death penalty

Japanese MPs propose a Lluís Maria de Puig, the President of the “In January, our Assembly again called for such moratorium on execu- Council of Europe Parliamentary Assembly a moratorium by Japan, which holds observer tions (PACE), has warmly welcomed the proposal by status with the Council of Europe. Our experi- a cross-party group of Japanese MPs for a four- ence with our member states tells us that par- year moratorium on executions. liamentary pressure can play a major role in “Death is not justice, but the sudden, secretive changing public opinion.” hangings carried out in Japan are particularly No executions are carried out in any of the 47 chilling, and a suspension of this grisly proce- member states of the Council of Europe. dure is long overdue. I urge the Japanese Diet to adopt this proposal,” said the President.

Situation of children living in post-conflict zones in the Balkans

Resolution 1587, adopted The Parliamentary Assembly considers that the children in particular, are victims of trafficking, on 23 November 2007 situation of children living in post-conflict prostitution and forced labour, or are forced (Doc. 11353) zones in the Balkans has to be seen in the light into begging. One consequence of family of: children’s right to survival and develop- poverty is an increase in the number of chil- ment, which is not limited to purely physical dren living in institutions, where again a large and material aspects; the principle of children’s number come from minorities. best interests, on which any action on their behalf must be based; the principle of non- It urges the countries concerned to sign and discrimination; and the principle of children’s ratify the Council of Europe Convention on participation, namely their right to express Action against Trafficking in Human Beings their own opinions freely, and to have those (CETS No. 197), adopted in May 2005, without opinions given due weight, in accordance with further delay. their age and maturity. Finally, the Assembly emphasises that children The Assembly notes that children from minor- are also agents for change and should be given ity or socially-excluded groups, such as Roma, the necessary conditions and tools to help es- Egyptians and Ashkali, as well as displaced tablish democracy and peace.

Situation of human rights in member and observer states 61 Commissioner for Human Rights

The Commissioner for Human Rights is an independent institution within the Council of Europe, created to promote awareness of and true respect for human rights in the 47 member states of the Council of Europe.

Mandate

According to his mandate, the Commissioner’s Parliamentary Assembly. They are published main objective is to raise the standards of and widely circulated in policy-making and human rights protection. non-governmental organisations as well as in the media. For this, he carries out visits to member states for a comprehensive evaluation of their human The Commissioner also provides advice and in- rights situation. During the visits, he meets the formation on specific issues to help enforce highest representatives of government, parlia- human rights standards and promote ment and the judiciary, as well as leading awareness-raising activities through seminars members of human rights protection institu- and events on various themes. tions and civil society. After the visits, a report is released containing both an analysis of He co-operates closely with national and inter- human rights practices and detailed recom- national human rights bodies, such as ombuds- mendations about possible ways of improve- men and national institutions, which are well ment. The reports are presented to the Council placed to bring human rights protection closer of Europe’s Committee of Ministers and the to people.

Country visits

Official visits

During the visit, the Commissioner assessed a dent of the high court, the attorney general, the Ireland, broad range of human rights issues, focusing commissioner of An Garda Síochána and the 26-30 November 2007 mainly on children’s rights, juvenile justice, mi- lord mayors of Dublin and Cork. Mr Ham- grants’ and women’s rights, treatment of marberg’s agenda also included meetings with asylum seekers and the situation of Travellers. the Irish Human Rights Commission, the Om- budsman for Children, the Equality Authority Mr Hammarberg also visited various institu- and representatives from civil society. tions in Dublin and Cork, such as facilities for youth offenders, an accommodation centre for The Commissioner welcomed the plan of a ref- asylum seekers, a women’s shelter, a psychiatric erendum to include the rights of the child on establishment and Travellers’ halting sites. He the constitution. According to him, it is essen- met members of the Irish Government, includ- tial to establish that the principle of the best in- ing the Taoiseach (Head of Government), terests of children must be a primary Bertie Ahern, as well as parliamentarians, the consideration in all decision making affecting chief justice of the supreme court, the presi- children.

62 Mandate Council of Europe Commissioner for Human Rights

On juvenile justice, Thomas Hammarberg ex- pressed his satisfaction about the plans of the Irish government to close Saint Patrick’s prison and encouraged further efforts to develop al- ternatives to imprisonment in the youth justice system. The Commissioner also underlined the impor- tance of adopting a total ban of corporal pun- ishment, encouraging the Irish government to follow the examples of other European coun- tries in this field. Moreover, Thomas Hammarberg stressed the need to find a solution to the excessive length of stay of some asylum seekers, including chil- dren, in reception centres, affirming that the uncertain conditions in which they are kept Thomas Hammarberg and Bertie Ahern, the Irish Taoiseach. “may be a cause of strong distress.”

San Marino, The Commissioner’s visit focused mainly on of justice, the minister of labour, representa- 24-25 January 2008 national human rights structures, issues tives from the judiciary, and the bureau of par- related to citizenship, as well as measures liament. He also met representatives from civil against discrimination. society and visited institutions and sites of The Commissioner for Human Rights was re- human rights relevance such as the San Marino ceived by the captain’s regent (head of state) prison, police stations, the neuro-psychiatric and held meetings with the minister of foreign service of the hospital and an institute for affairs, the minister of the interior, the minister people with disabilities.

“The former Yugoslav Re- Mr Hammarberg’s agenda covered major In his preliminary findings at the press confer- public of Macedonia”, human rights issues, including the functioning ence concluding the visit, the Commissioner 25 - 29 February 2008 of the police and the judiciary, treatment and noted the impressive pace of recent legislative conditions in places of detention, women’s reform and called for increased efforts to rights and the situation of the Roma minority secure effective implementation in practice. in the country. He also visited various institutions – such as places of detention and police stations, educa- tional institutions, psychiatric establishments – and Roma communities in Tetovo, Ku- manovo, Demir Kapija and Demir Hisar. Furthermore, the Commissioner held meetings with the president and prime minister, as well as relevant ministers including the ministers of foreign affairs, justice and the interior. Further talks were held with the speaker of parliament and parliamentary committees, as well as with the prosecutor general and top executives of the judiciary. Mr Hammarberg also met the ombudsman and representatives from civil so- Mr Hammarberg visits “the former Yugoslav Republic of ciety. Macedonia”.

Contact visits

Norway, 16 November The Commissioner carried out a visit to prison conditions, trafficking in human beings, 2007 Norway where he held meetings with national national action plans for human rights and the authorities, in particular the minister of justice execution of judgments of the European Court and state secretaries from the office of the of Human Rights. prime minister and the ministry of foreign af- In addition, Thomas Hammarberg took part in fairs. The Commissioner’s agenda focused on a conference on “Human rights protection for

Country visits 63 Human rights information bulletin, No. 73 Council of Europe vulnerable groups of people” in Oslo organised ties to further strengthen human rights by the Ombudsman of Norway. The Commis- protection in Norway and improve the living sioner’s intervention focused on the possibili- conditions of vulnerable people.

Commissioner Hammarberg discussed the During the visit, the Commissioner met several United Kingdom, 5-8 Feb- human rights situation in the United Kingdom ministers (including the minister for human ruary 2008 with British authorities and non-governmental rights), parliamentarians and ombudsmen as organisations during a four-day visit to well as members of the newly-established London. Discussions focused on counter- Equality and Human Rights Commission. terrorism, immigration and children’s rights.

Over the course of this visit, Mr Hammarberg tion was paid to the following issues: children’s Bulgaria, 14-15 February discussed the human rights situation in Bul- rights, the rights of disabled people, problems 2008 garia with national authorities and non- related to the judiciary, minorities and anti- governmental organisations. Particular atten- discrimination policies.

Meetings organised by the Office of the Commissioner

First meeting of Focal Points of National Human Rights Structures

Commissioner Hammarberg held a meeting Commissioner and NHRS that was agreed Strasbourg, 6-7 Novem- with representatives of National Human Rights upon at the Athens Round Table in April 2007. ber 2007 Structures (NHRS), specifically nominated for the purpose of the co-operation with the Com- missioner’s Office. Participants discussed practical examples con- cerning the role that NHRS may have in helping the execution of judgments of the Eu- ropean Court of Human Rights. In addition, they designed a programme of activities that the network will carry out over the next few years in order to foster the effective implemen- tation of European human rights standards. This meeting was the first step in implement- ing the systematic co-operation between the

International colloquy on the prevention of torture in Europe

Ombudspersons, heads of national human by the Optional Protocol to the Convention Paris, 18 January 2008 rights institutions as well as NGO and IGO rep- against Torture, as well as on the possible na- resentatives gathered to participate in this tional responses and their interaction with the event which was organised jointly by the Com- existing national institutions. missioner and the Ombudsman of the French Republic. Currently, only 17 of the 47 Council of Europe The colloquy focused on European and UN re- member states have ratified the optional proto- quirements concerning the implementation of col, and seven of these countries have set up a national prevention mechanisms, as envisaged national mechanism.

Reports presented to the Ministers’ Deputies of the Council of Europe

In this report, the positive steps undertaken by the need for further improvements was ob- On 12 December 2007 Mr the Austrian authorities to improve the protec- served and a number of recommendations, fo- Hammarberg presented his report on the human tion and promotion of human rights were un- cusing mainly on freedom of expression, rights situation in Austria. derlined and the ongoing constitutional reform protection against discrimination, the treat- process as an opportunity to clearly codify all ment of asylum seekers and the monitoring of fundamental rights was welcomed. However, police behaviour were made.

64 Meetings organised by the Office of the Commissioner Council of Europe Commissioner for Human Rights

In addition, the Commissioner suggested that rights to be included in the codification of fun- Austria should retain the constitutional status damental rights. Moreover, he recommended of the European Convention on Human Rights that the independence of the Human Rights in the constitution and called for children’s Advisory Board should be strengthened.

On 20 February 2008, In this report, whilst underlining that the au- The Commissioner recommended swift action Thomas Hammarberg thorities have ratified key European and inter- to establish the office of the ombudsman at presented his human rights assessment report national human rights treaties and adopted state level. While he noted progress in the judi- on Bosnia and Herze- legislation and action plans in important areas, ciary with regard to independence and profes- govina. Mr Hammarberg highlighted the need for sionalism, Mr Hammarberg expressed concern further efforts to ensure concrete implementa- about the huge backlog of cases in the courts. tion of the reforms. His recommendations According to him, there is an urgent need for focus on internally-displaced persons and mi- an action plan to remedy this problem. nority returnees, Roma, children, poverty and social exclusion.

On 20 February 2008, the In the report, Mr Hammarberg welcomed the Commissioner expressed concerns over the Ministers’ Deputies also progress made since the country’s independ- practice of arbitrary arrests, particularly of op- considered the Commis- sioner’s report on the ence, especially efforts to improve the adminis- position members or journalists. He recom- overall human rights situ- tration of justice and to remedy the difficult mended specific actions such as appropriate ation in Azerbaijan. conditions of internally displaced persons. human rights training for police officers and However, he noted that allegations of torture robust measures to investigate all allegations of during the investigative period still persist. The abuse in order to avoid impunity.

Other events

Conference on Roma women’s rights

Stockholm, 3 December This conference was organised jointly by the women’s participation in social and political 2007 Council of Europe, the Swedish Ministry of In- spheres and he highlighted the example of Ka- tegration and Gender Equality and the Euro- tarina Taikon, whose campaigns have helped to pean Union Agency for Fundamental Rights, at foster better understanding and protection of the request of the Romani Women’s Networks. Roma culture in Sweden. The Commissioner’s speech focused on the need to emphasise the positive impact of Roma

Conference on support services for women victims of violence

Strasbourg, 6 December This conference was organised as part of the Mr Hammarberg said that providing services is 2007 Council of Europe campaign “Stop domestic vi- essential but it cannot eliminate the need to es- olence against women”. In his speech, the Com- tablish an ethical consensus that violence missioner declared that stopping violence against women is unacceptable. It is particu- against women requires clear and enforceable larly important that leading politicians, male legislation, training and information cam- and female, demonstrate that this is a priority paigns. “Most governments have now picked up issue and that there should be zero tolerance the principles, but some are far behind in im- towards domestic violence. plementation”, he stated, adding that support services must respond fully to victims’ needs.

Exchange of views with the European Committee of Social Rights of the Council of Europe

Strasbourg, 4 February Mr Hammarberg underlined that the indivisi- He stressed that recognition of indivisibility of 2008 bility of civil, political and social rights should rights should be translated into the ratification be reaffirmed, in particular during this year, of the revised European Social Charter and the which marks the 60th anniversary of the Uni- acceptance of the collective complaints proce- versal Declaration of Human Rights. dure. A number of issues of common interest were also discussed, namely the justiciability of

Other events 65 Human rights information bulletin, No. 73 Council of Europe social rights and the need to harmonise Euro- pean Union norms with the Council of Europe standards in this field.

Declaration by the Council of Europe Committee of Ministers

Further to this declaration, the Commissioner The declaration foresees, inter alia, a more Strasbourg, 6 February has been designated as the main regional active role of the Commissioner in this field, 2008 mechanism to strengthen the protection of recognising the efforts already made in protect- human rights defenders and to promote their ing human rights defenders across Europe. activities.

Communication and information activities

Viewpoints

A number of viewpoints have been published Earlier viewpoints are now available as a single The Commissioner’s com- on the Commissioner’s website about the pro- publication – Human rights in Europe: Mission munication and informa- tion work mainly tection against torture, human rights viola- Unaccomplished. consisted of interviews, tions during anti-terror campaigns, domestic All of these texts are available at: http://com- public relations activities, violence against children, violence against missioner.coe.int publication and dissemi- women, migrants’ rights, respect of children’s nation of fortnightly viewpoints. opinions, police violence and life sentences.

Speeches and statements

In a speech delivered on 5 November 2007 at amation laws could intimidate journalists and European Day of Action the International Federation of Journalists in cause self-censorship. for Journalists Rights, Brussels, 5 November Brussels on European Day of Action for Jour- The Commissioner emphasised the positive 2007 nalists Rights, Mr Hammarberg stressed that role that self-regulatory mechanisms within even in the Europe of today, freedom of expres- the media could play in ensuring more ethical sion was not fully protected and called for a de- journalism and he underlined that, although criminalisation of defamation. “It is a major media problems are more acute in transition problem that defamation is still criminalised in countries, state and business domination over several parts of Europe” he said. He further de- the media sector is widespread, making it es- clared that the mere existence of criminal def- sential to discuss this issue throughout Europe.

participation.The Commissioner underlined Universal Children’s Day, that children have the right to be heard and Warsaw, 20 November 2007 adults should listen to their views. Child partic- ipation, which is a right recognised by the Con- vention on the Rights of the Child, should take place at every stage of life, in family, in schools as well as in the community. According to him, children’s capacity to freely express their views is a precondition for their development.

The lecture, the first of a cycle of three, was On 20 November 2007, on Universal Children’s dedicated to Janusz Korczak, considered as one Day, Thomas Hammarberg called for “a culture of the fathers of children’s rights, and took of greater receptivity and respect for children’s place in a former orphanage, created by Mr views” during a lecture in Warsaw about child Korczak before the Second World War.

Internet: http://www.coe.int/commissioner/

66 Communication and information activities European Social Charter

The European Social Charter sets out rights and freedoms and establishes a supervisory mechanism guarantee- ing their respect by the states parties. This legal instrument was revised in 1996 and the revised European Social Charter, which came into force in 1999, is gradually replacing the initial 1961 treaty.

Signatures and ratifications

To date, 43 member states of the Council of have ratified either of the two instruments Europe have signed the revised European Social (24 for the revised charter and 15 for the 1961 Charter. The remaining four member states charter). have signed the 1961 charter. Thirty-nine states

About the charter

Guaranteed rights have complied, and if it takes no action on a de- The European Social Charter guarantees rights cision of non-conformity, the Committee of in a variety of areas, such as housing, health, Ministers adopts a recommendation asking it education, employment, legal and social pro- to change the situation. tection, movement of persons, and non- discrimination. Complaints procedure Under a protocol which opened for signature in National reports 1995 and which came into force in 1998, com- The states parties submit a yearly report indi- plaints of violations of the charter may be cating how they implement the charter in law lodged with the European Committee of Social and in practice. Rights by certain organisations. The Commit- On the basis of these reports, the European tee’s decision is forwarded to the parties con- Committee of Social Rights – comprising 15 cerned and to the Committee of Ministers, members elected by the Council of Europe’s which adopts a resolution in which it may rec- Committee of Ministers – decides, in “conclu- ommend that the state concerned takes spe- sions”, whether or not the states have complied cific measures to bring the situation into line with their obligations. If a state is found not to with the charter.

European Committee of Social Rights (ECSR)

Following Mrs Ersiliagrazia Spatafor’s resigna- The Commissioner underlined the importance tion, the Committee of Ministers, at its 1016th he attached to the charter and to the work of session on 30 January 2008, elected Mrs Annal- the committee. He does not miss an opportu- isa Ciampi, from Italy, as a member of the nity to refer to the charter and to the ECSR ECSR, with immediate effect for a term of case-law during his assessment visits to office which will expire on 31 December 2010. Council of Europe member states and in his On 4 February 2008, on its 227th session, the public statements and viewpoints, in particular ECSR invited the Commissioner for Human when discussing the right to housing, corporal Rights of the Council of Europe, Mr Thomas punishment of children, Roma rights and the Hammarberg to an exchange of views. rights of disabled.

Signatures and ratifications 67 Human rights information bulletin, No. 73 Council of Europe

Significant meetings

Seminar as part of the action plan of the Council of Europe 3rd Summit

This meeting aimed to increase the visibility of to the revised charter and in particular to Athens (Greece), 6 No- the European Social Charter and, at political accept articles 5 and 6 (freedom to organise vember 2007 level, to encourage the authorities to move and right to collective bargaining). from the 1961 charter, to which Greece is party,

Bosnia and Herzegovina, Montenegro and in order to promote fundamental social rights Belgrade (Serbia), 20 No- Serbia have signed the revised European Social and to raise awareness of the charter among the vember 2007 Podgorica (Montenegro, Charter, but have not yet ratified it. relevant actors (public authorities, parliament, 22 November 2007 The objective of these seminars was to judges, civil society) with a view to ratification. Sarajevo (Bosnia and strengthen the dialogue with these three states Herzegovina), 28-29 No- vember 2007

This meeting provided the opportunity for in- raise awareness of participants from ministries Bratislava (Slovakia), creasing co-operation with the Slovakian au- and NGOs regarding additional protocol pro- 12 February 2008 thorities, which are preparing the ratification viding for a system of collective complaints of the revised European Social Charter and to which might be ratified by Slovakia.

Meeting on non-accepted provisions of the European Social Charter

Five years after the ratification of the revised On this occasion, the Ministry for Foreign Helsinki (Finland), charter by Finland, representatives of relevant Affairs also organised an exchange of views 15-16 November 2007 ministries took stock of the provisions which with academics and representatives from civil have not yet been accepted by this state, con- society. cerning both existing legislation and practice.

Major awareness-raising activity

A seminar on the implementation of the social rights, the evolution of such rights, cases Lisbon (Portugal), revised European Social Charter in Portugal of non-compliance with the charter and the 8 January 2008 was organised on 8 January 2008 in Lisbon. The new reporting system. debates focused on defending economic and

Collective complaints: latest developments

Follow up to collective complaints

In the collective complaint World Organisation Decisions on the merits against Torture (OMCT) v. Portugal (No. 34/ Two decisions on the merits were published: 2006), it was alleged that Portuguese domestic • the complaint lodged against Finland by the law did not explicitly nor effectively prohibit all Federation of Finnish Enterprises (No. 35/ corporal punishment of children. 2006) alleged that Finnish legislation vio- lated the right to organise since it contained The European Committee of Social Rights had stricter provisions for enterprises not be- concluded that there was a violation of longing to an employers’ organisation than Article 17 (right of children and young persons for those which do belong to such an organ- to social, legal and economic protection) of the isation. revised European Social Charter. • the complaint lodged against Portugal by In September 2007, the Portuguese Govern- the European Council of Police Trade ment amended the Penal Code to prohibit the Unions (CESP) (No. 37/2006) alleged that corporal punishment of children (Article 152 the Portuguese State had not observed the “Domestic violence”) democratic rules of collective bargaining.

68 Significant meetings Council of Europe European Social Charter

The European Committee of Social Rights con- that Bulgarian legislation as from 1 January cluded that there was no violation of the 2008 no longer ensures the right to adequate revised European Social Charter in the afore- social assistance to unemployed persons mentioned two complaints. without adequate resources. This will particu- For more detailed information, see the collec- larly affect Roma and women. tive complaints page of the European Social On 5 February 2008 the collective complaint Charter’s website: European Roma Rights Centre v. Bulgaria http://www.coe.int/t/e/human_rights/esc/ (No. 46/2007) was declared admissible by the 4_collective_complaints/ ECSR. List_of_collective_complaints/de- fault.asp#TopOfPage It relates to Article 11 (right to health) and to Article 13 (right to social and medical assist- Decisions on admissibility ance) of the revised European Social Charter. It On 3 December 2007, the collective complaint is alleged that legislation excludes a large International Helsinki Federation for Human number of Roma persons from health insur- Rights (IHF) v. Bulgaria (No. 44/2007) was de- ance coverage, that government policies do not clared admissible by the ECSR. adequately address the specific risks affecting It relates to Article 13 §1 (right to social and Roma communities, and that there is wide- medical assistance) read alone or in conjunc- spread discriminatory practices on the part of tion with Article E (non-discrimination) of the health care practitioners against Roma in the revised European Social Charter. It is alleged provision of health services.

New collective complaints

One new complaint was registered on 4 Febru- social and medical assistance), 16 (right to ap- ary 2008: propriate social, legal and economic protection Defence for Children International v. the Neth- for the family), 17 (right of children and young erlands (No. 47/2008). persons to appropriate social, legal and eco- It is alleged that Dutch legislation deprives nomic protection) and 30 (right to protection children residing illegally in the Netherlands of against poverty and social exclusion) alone or the right to housing (Article 31) and conse- read in conjunction with Article E (non- quently of a series of additional rights laid discrimination) of the revised European Social down in Articles 11 (right to health), 13 (right to Charter.

Publications

The revised European Social Charter has been The Social Charter at a glance has been pub- published in Slovakian (it also exists in English, lished in Macedonian and Slovakian (it also French, Albanian, Armenian, Azeri, Bosnian, exists in English, French, Albanian, Azeri, Bos- Croatian, Dutch, Estonian German, Italian, nian, Croatian, Dutch, Georgian, German, Hun- Norwegian, Polish, Portuguese, Romanian, garian, Italian, Polish, Romanian, Russian, Russian, Slovenian and Spanish). Slovenian, Spanish and Turkish).

Internet: http://www.coe.int/t/e/human_rights/esc/

New collective complaints 69 Convention for the Prevention of Torture

Article 3 of the European Convention on Human Rights provides that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”. This article inspired the drafting of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

Co-operation with national authorities is at the heart of the convention, given that its aim is to protect persons deprived of their liberty rather than to condemn states for abuses.

European Committee for the Prevention of Torture (CPT)

The CPT was set up under the 1987 European pose, it is entitled to visit any place where such Convention for the Prevention of Torture and persons are held by a public authority. Apart Inhuman or Degrading Treatment or Punish- from periodic visits, the committee also organ- ment. The secretariat of the CPT forms part of ises visits which it considers necessary (ad hoc the Council of Europe’s Directorate General of visits). The number of ad hoc visits is con- Human Rights and Legal Affairs. The CPT’s stantly increasing and now exceeds that of pe- members are elected by the Committee of Min- riodic visits. isters of the Council of Europe from a variety of The CPT may formulate recommendations to backgrounds: lawyers, doctors – including psy- strengthen, if necessary, the protection of chiatrists – prison and police experts, etc. persons deprived of their liberty against torture The CPT’s task is to examine the treatment of and inhuman or degrading treatment or pun- persons deprived of their liberty. For this pur- ishment.

Periodic visits

This visit was the CPT’s second periodic visit to Over the course of the visit, the CPT delegation Serbia Serbia and provided an opportunity to review held consultations with Dušan Petrović, Minis- 19-29 November 2007 the action taken by the Serbian authorities to ter of Justice, Tomica Milosavljević, Minister of improve the treatment of persons detained by Health, Rasim Ljalić, Minister of Labour and the police and the practical operation of the Social Welfare, Ljubinko Nikolić, Assistant to safeguards in place. In addition, the delegation the Minister of Interior, and Gordana Sto- examined in detail the treatment and regime of janović, Deputy Public Prosecutor, as well as prisoners held in the closed, high-security and with senior officials from relevant ministries, remand sections of three prisons in Belgrade, the Agency of Human Rights and Minority Požarevac and Sremska Mitrovica. The delega- Rights, and the Security and Information tion also carried out a follow-up visit to Serbia’s Agency. It also met Saša Janković, the Serbian only prison hospital. Ombudsman, and held discussions with The delegation examined the situation of psy- members of non-governmental and interna- chiatric patients at the Specialised Neuro- tional organisations active in areas of concern Psychiatric Hospital in Kovin. In addition, the to the CPT. delegation visited – for the first time in Serbia – an establishment for persons with learning At the end of the visit, the delegation presented disabilities, the Special Institution for Children its preliminary observations to the Serbian au- and Juveniles in Stamnica. thorities.

70 European Committee for the Prevention of Torture (CPT) Council of Europe Convention for the Prevention of Torture

United Kingdom, The main objective of the visit was to examine police custody; diplomatic assurances and 2-6 December 2007 the treatment and conditions of detention of related memoranda of understanding in the two persons convicted by the International context of deportation procedures; the use of Criminal Tribunal for the former Yugoslavia force and means of restraint during the depor- (ICTY), who are serving their sentences at tation of immigration detainees; the use of Frankland and Shotts Prisons.1 The delegation means of restraint on children in detention; also visited Paddington Green High Security and overcrowding in prisons in England and Police Station in London. Wales. In this context, the delegation met State Over the course of the visit, the CPT delegation Minister of Justice David Hanson, Interim held discussions with the United Kingdom au- Chair of the Youth Justice Board Graham Robb thorities on a number of issues including: the and senior officials from the Foreign and Com- safeguards to be applied and conditions of de- monwealth Office, the Home Office and the tention to be offered in the event of prolonged Ministry of Justice.

1. This specific monitoring activity of the CPT is a result The delegation also met representatives from of an exchange of letters between the ICTY and the the Children’s Rights Alliance for England, Lib- CPT dated 7 and 24 November 2000 and the Agreement between the United Nations and the United Kingdom erty, and the National Society for the Preven- Government of 11 March 2004. tion of Cruelty to Children.

Latvia, This was the CPT’s fourth visit to Latvia. residents and the legal safeguards in the 27 November-7 Decem- context of admission procedures. ber 2007 The CPT delegation reviewed the measures taken by the Latvian authorities following the Over the course of the visit, the delegation held recommendations made by the committee consultations with Gaidis Bērziņš, Minister of after its previous visits. Particular attention was Justice, Iveta Purne, Minister of Welfare, Aivars paid to the fundamental safeguards against ill- Straume, State Secretary of the Ministry of In- treatment offered to persons deprived of their terior, Visvaldis Puķīte, Head of the Latvian liberty by the police and to conditions of deten- Prison Administration, and Juris Bundulis, tion in police “short-term isolators”. The dele- Under Secretary of State of the Ministry of gation also examined in detail various issues Health, as well as with other senior officials of related to prisons, in particular the situation of the ministries concerned. It also met Romāns juvenile and female prisoners as well as the Apsītis, Ombudsman of Latvia, and represent- regime and security measures applied to life- atives of non-governmental organisations sentenced prisoners. In addition, the delega- active in areas of concern to the CPT. tion visited a psychiatric hospital and a social At the end of the visit, the delegation presented welfare institution, where it examined the its preliminary observations to the Latvian au- treatment and living conditions of patients/ thorities.

Ukraine The main purpose of the visit was to examine During the visit, the delegation held consulta- 5-10 December 2007 the situation of foreign nationals detained tions with senior officials of the State Border under aliens legislation, and to review progress Service, the Ministry of Internal Affairs and the made in this area in the light of the recommen- State Department on Enforcement of Sen- dations contained in the CPT’s report on its tences, as well as with representatives of other previous visit to Ukraine in 2005. Over the ministries and agencies. Meetings were also course of the visit, the delegation focused on held with the UNHCR Regional Representation detention facilities under the authority of the in Kyiv and members of non-governmental or- State Border Service. It also visited several es- ganisations. tablishments subordinated to the Ministry of At the end of the visit the delegation presented Internal Affairs and used for holding adminis- its preliminary observations to the national au- trative detainees. thorities.

Portugal This was the CPT’s seventh visit to Portugal. egation also examined in detail various issues 14-25 January 2008 The CPT delegation reviewed the measures concerning prisons, including the treatment of taken by the Portuguese authorities to imple- high-security prisoners and drug-related mat- ment the recommendations made by the com- ters. In addition, the delegation visited two mittee following its previous visits. Particular psychiatric hospitals, where it focused on the attention was paid to the treatment of persons living conditions as well as the legal safeguards deprived of their liberty by the police. The del- afforded to patients in the context of the invol-

Periodic visits 71 Human rights information bulletin, No. 73 Council of Europe untary admission procedure and of consent to tries. It also met Jorge Noronha e Silveira, treatment. Deputy Ombudsman, and representatives of The delegation held consultations with José non-governmental organisations active in areas Conde Rodrigues, Deputy State Secretary of the of concern to the CPT. Ministry of Justice, José Magalhães, Deputy The delegation also interviewed remand pris- State Secretary of the Ministry of Interior, oners at Lisbon Central Prison and the Judicial Maria do Céu Soares Machado, High Commis- Police Prison in Lisbon. sioner for Health, and Rui Sá Gomes, Head of At the end of the visit the delegation presented the Portuguese Prison Service, as well as with its preliminary observations to the Portuguese other senior officials from the relevant minis- authorities.

This was the CPT’s fourth visit to Denmark. The delegation held consultations with Denmark 11-20 February 2008 The CPT delegation reviewed the measures Ms Lene Espersen, Minister of Justice. It also taken by the Danish authorities to implement met Mr Lars Hjortnæs, Deputy Permanent Sec- the recommendations made by the committee retary of State of the Ministry of Justice; following its previous visits. The delegation ex- Mr Mogens Hendriksen and Mr Hans-Viggo amined in detail various issues concerning de- Jensen, Deputy National Commissioners from tention by the police, as well as the detention of the Danish National Police; Mr William Rentz- asylum seekers and other foreigners in the Elle- Mann, Director-General of the Danish Prison bæk Establishment. As regards prisons, partic- and Probation Service, and Ms Annette Gjerris, ular attention was paid to the treatment of Director General of the Psychiatry Department maximum-security prisoners. In the Hersted- vester Establishment, the delegation focused of the Regional Council of the Capital Region of on the treatment of sexual offenders who were Denmark. The delegation also met Mr Hans receiving, or had been offered, anti-hormone Gammeltoft-Hansen, the Parliamentary Om- therapy, as well as on the situation of prisoners budsman. In addition, it held meetings with from Greenland. In addition, the delegation representatives of non-governmental organisa- visited two psychiatric establishments, where it tions active in areas of concern to the CPT. examined in particular the legal safeguards af- forded to patients in the context of the use of At the end of the visit, the delegation presented restraint. The delegation also visited two secure its preliminary observations to the Danish au- institutions for minors and juveniles. thorities.

Reports to governments folllowing visits

After each visit, the CPT draws up a report which sets out its findings and includes recommendations and other advice, on the basis of which a dialogue is developed with the state concerned. The com- mittee’s visit report is, in principle, confidential; however, almost all states choose to allow the report to be published.

Preliminary observations on the fourth Establishment No. 13 in Chişinău in order to Moldova periodic visit in September 2007 examine the manner in which staff had Publication on 7 November 2007 Particular attention was paid to the treatment handled recent mass disobedience by inmates. of persons detained by the police and to the In addition, the delegation visited Chişinău practical operation of safeguards against ill- Clinical Psychiatric Hospital and, for the first treatment. The committee’s delegation stressed time in Moldova, a social care home for persons the need for a more proactive approach from with psychiatric/mental disorders in Cocieri. prosecutors, judges and senior police officers As regards the latter establishment, particular to make sure that no case of ill-treatment goes concerns were expressed with respect to the unnoticed and that the perpetrators of such numerous allegations of ill-treatment of resi- acts are punished. dents by staff and the high number of deaths of The CPT delegation also examined in detail residents in recent years. various issues related to prisons, including the treatment provided to prisoners suffering from The preliminary observations are published tuberculosis and the situation of life-sentenced with the agreement of the Moldovan authori- prisoners. In addition, it visited Penitentiary ties.

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France Report on the visit in September- amined several specific detention regimes, as Publication on October 2006 together with the French well as medical and psychiatric care for detain- 10 December 2007 Government’s response ees (in particular those provided by several re- During the visit, the delegation reviewed the gional medical and psychology departments steps taken by the French authorities following and at Moulins-Yzeure Hospital). It also visited, several recommendations made by the CPT for the first time, a jointly-managed (public- after its previous visits (conditions in police private) remand prison at Seysses, as well as a custody and in aliens’ administrative deten- Closed Educational Centre for Minors at Mont tion, deportation procedures, etc.). The delega- de Marsan. In their response, the French au- tion also examined in detail the thorities provided information on the steps implementation in practice of the most recent being taken to address the issues raised by the procedures and safeguards adopted in the CPT. context of counter-terrorism operations. It ex-

Denmark Response by the Danish authorities to CPT on its visit from 28 January to 4 February Publication on the CPT’s report on its 2002 visit 2002 to Denmark. This report set out in docu- 12 December 2007 The Danish Government has requested the ment CPT/Inf (2002) 18 which is available on publication of this response to the report of the the CPT’s website.

Armenia Report on the periodic visit in April 2006, life-sentenced prisoners. As regards prison Publication on together with the Armenian authorities’ health care, there has been some progress since 13 December 2007 response the 2002 visit, in particular with respect to the In the light of the information gathered during detection and treatment of tuberculosis. the visit, the CPT has maintained its assess- At Sevan Psychiatric Hospital, most of the pa- ment that persons deprived of their liberty by tients interviewed by the delegation spoke pos- the police in Armenia run a significant risk of itively of the attitude of healthcare staff. being ill-treated. The committee has called However, patients were accommodated in upon the Armenian authorities to deliver, from cramped, austere and impersonal dormitories. the highest political level, a strong message to Furthermore, the psychiatric treatment was all police staff that the ill-treatment of detained based almost exclusively on pharmacotherapy; persons is illegal and will be dealt with severely. the range of other therapeutic options was un- Furthermore, the committee has made several derdeveloped. The 2006 visit provided the first recommendations aimed at strengthening the opportunity for the CPT to assess the legal safe- formal safeguards against ill-treatment and at guards applicable to civil hospitalisation under improving screening for injuries and police the new Law on Psychiatric Assistance. It complaints procedures. At the same time, the became clear that these new safeguards were CPT has welcomed the ongoing refurbishment not yet well known or effectively applied by programme concerning police holding areas. staff at Sevan Psychiatric Hospital. No allegations of ill-treatment by staff were re- ceived at Vanadzor Prison. However, several In their response, the Armenian authorities such allegations were received at the Nubar- provide information on the steps being taken ashen Prison’s unit for life-sentenced prisoners, to address the issues raised by the CPT. For ex- as well as at Goris Prison. At Abovyan Prison, ample, recent amendments to the code of crim- the delegation heard a few isolated allegations inal procedure make it clear that the period of of physical ill-treatment. The CPT has recom- police custody runs from the moment a person mended that staff working at the above- is deprived of his/her liberty by the police, and mentioned prisons be given a clear message that the legal safeguards against ill-treatment that the physical ill-treatment of inmates is not apply as from that moment. The response also acceptable and will be dealt with severely. The contains detailed information about legal de- CPT has noted the measures taken to put in velopments within the prison system, as well as place a new legal framework for imprisonment, on the efforts being made to expand and mod- as well as the considerable decrease in the ernise prisons. Regarding psychiatric establish- prison population and the government’s exten- ments, the Armenian authorities provide sive programme of refurbishment of prisons. information on the ongoing refurbishment of However, the committee has expressed concern Sevan Psychiatric Hospital and on the progress about the insufficient progress towards provid- of therapeutic and rehabilitative activities in ing purposeful activities to prisoners, including that establishment.

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Preliminary observations on the visit in tion. With regard to prisons, particular atten- Switzerland September and October 2007 tion was paid to the conditions of detention of Publication on 7 January 2008 During its visit to Switzerland in September persons against whom a compulsory place- and October 2007, the CPT delegation followed ment measure or institutional therapeutic up a number of issues examined during previ- measures had been ordered, as well as to condi- ous visits, in particular the fundamental safe- tions in the security units. The delegation also guards against ill-treatment offered to persons examined the situation of juveniles and young in police custody and the situation of persons adults in education centres. deprived of their liberty under aliens legisla-

Report on the periodic visit in June 2007 For immigration detainees, the CPT has recom- Netherlands mended, among other measures, an improve- Publication on The CPT considers that the boats Kalmar and 5 February 2008 ment in material conditions, regime activities Stockholm, used for detaining irregular mi- and access to medical care for persons detained grants, are unsuitable for prolonged detention at the Centro pa detencion di illegalnan. and should be taken out of service at the earli- est opportunity. By contrast, the conditions in KIA Prison is the subject of numerous recom- the Rotterdam Airport Expulsion Centre were mendations concerning, inter alia, inter- found to be adequate. prisoner violence. Furthermore, an increase in constructive activities for prisoners and an im- The CPT visited the high-security terrorist de- provement in the provision of health care, in partments at De Schie and Vught Prisons. It has particular psychiatric and psychological care, recommended that placement in such depart- are essential requirements. ments be based upon a comprehensive, indi- In the course of the visit to the Netherlands An- vidual risk assessment. Furthermore, every tilles, several allegations of physical ill- placement in a terrorist department should be treatment by the police were received. The CPT regularly reviewed, based upon criteria clearly has recommended the adoption of a vigorous laid down in law. In addition, the CPT has con- policy to combat police ill-treatment. Pro- cerns about the very restrictive regime in these longed detention on police premises is criti- departments, which may, in certain cases, lead cised once again, and the conditions of to de facto isolation of a prisoner. detention in certain police stations, such as With respect to the De Hartelborgt Youth De- Kralendijk, were found to be unacceptable. The tention Centre, the CPT has recommended Netherlands Antilles authorities have under- various improvements concerning care, treat- taken a programme of refurbishment. ment and the disciplinary regime. Amongst As regards the immigration detention centre, other things, an individualised pedagogical or Illegalen Barakken, the committee has made a treatment plan should be drawn up for each number of recommendations with regard to resident, collective sanctions should not be material conditions, the lack of activities and permitted and the use of so-called “time out” the need to provide at least one hour of should be regulated. outdoor exercise every day. The CPT continues to have concerns about Bon Futuro Prison was found to be clearly dan- certain fundamental safeguards during police gerous and unsafe for both prisoners and staff. custody. In particular, criminal suspects are Measures have been identified which aim to still not entitled to access to a lawyer during the eradicate ill-treatment by staff and prevent initial period of detention (of up to six hours) inter-prisoner violence. The CPT has recom- by the police for examination purposes. mended in particular that members of the As regards Aruba, last visited in 1994, the CPT emergency response team should be ade- has recommended that the authorities adopt a quately selected, trained and supervised. In ad- vigorous policy to combat police ill-treatment, dition, a broad range of recommendations have and that periods of detention on police been made concerning staffing levels, material premises be substantially reduced. The CPT has conditions and access to meaningful activities welcomed the action recently taken by the and to health care. Aruban authorities to improve the material As regards the remand prison on the island of conditions in police stations, such as in Bonaire, the CPT has recommended urgent Oranjestad, and recommends that efforts be action to provide inmates with organised made to ensure that minimum standards for health care, an appropriate regime of activities police detention are sustained. and access to outdoor exercise.

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Greece Report on an ad hoc visit in February facilities for illegal migrants in order to evalu- Publication on 2007, together with the authorities’ ate progress made since the CPT’s last visit to 8 February 2008 response Greece, in 2005. The CPT also paid a targeted Over the course of the ad hoc visit, the CPT re- visit to Korydallos Men’s Prison in order to viewed the treatment of persons detained by examine the conditions of detention in the seg- law enforcement officials and examined the regation units and to assess developments in conditions of detention in police and border relation to the prison’s health care service. guard stations, coast guard posts and in special

“The former Yugoslav Re- Report on the sixth visit in May 2006,2 recommend that the Ministry of Justice pro- public of Macedonia” together with the authorities’response duced a comprehensive strategic plan for the Publication on 13 February 2008 A considerable number of persons – including recovery of the prison system, including the juveniles – interviewed during the visit alleged urgent need to re-locate the educational- that they had been ill-treated by law enforce- correctional institution. ment officials; in particular, there were re- The CPT noted the important reforms under peated allegations concerning officers from the way in the area of mental health, in particular Special Mobile Police Units (known as “Alfa”). through the de-institutionalisation of psychia- The findings highlighted, once again, the need try and efforts to support psychiatric care in for the authorities to deliver a clear message the communuity. However, with respect to that the ill-treatment of detained persons is Demir Hisar Psychiatric Hospital, the CPT re- illegal and will be dealt with severely. Further- ceived numerous allegations of ill-treatment of more, the committee made several recommen- patients by staff and recommended that the au- dations aimed at strengthening the safeguards thorities should take appropriate measures to against ill-treatment and improving the effec- put an end to ill-treatment. Furthermore, the tiveness of police complaints procedures. CPT stressed that the chaining of patients to their beds was totally unacceptable, recom- The report states that credible allegations were mending that all chains be removed from the received of ill-treatment by staff at Idrizovo and hospital and that appropriate procedures and Skopje Prisons. The CPT recommended that a safeguards be adopted for patients who have to clear message be delivered to staff in these be physically restrained. It also made recom- prisons that physical ill-treatment of inmates is mendations concerning low staffing levels, not acceptable and will be dealt with severely. It poor material conditions and safeguards for also recommended that concrete measures to the placement of patients in hospital. eradicate such ill-treatment be taken, includ- ing through improved management and super- At Demir Kapija Special Institution for men- visory mechanisms. Furthermore, the CPT tally disabled persons, a number of structural recommended that the authorities put an end improvements since the previous visit in 2002 to the use of chains to restrain vulnerable were noted. However, concerns remain with inmates at Skopje Prison. regard in particular to inter-resident violence and staffing levels. More generally, the CPT’s findings highlight In their response, the national authorities draw poor management and supervision in prisons, attention to instructions submitted to all police inadequate staffing levels and a lack of appro- stations regarding the treatment of detained priate training for staff. The CPT recommended persons and the safeguards they should be that a thorough review of the prison health- granted. Information is also given about the care services be undertaken, including as plans for upgrading and expanding prisons. Re- regards the treatment of prisoners with mental garding psychiatric establishments, the gov- health problems. As regards material condi- ernment refers to the newly adopted mental tions, the CPT found that they were very poor health law and provides detailed information in some accommodation units in Idrizovo on the measures taken to improve material Prison, and the committee recommended that conditions, increase staffing levels and ensure urgent measures be taken to render this prison better supervision at Demir Hisar Psychiatric safe and hygienic. Further recommendations Hospital. Confirmation is provided that chains were made by the committee which were aimed are no longer used in psychiatric hospitals. The at ensuring acceptable material conditions in response also provides information on meas- all prisons. The findings prompted the CPT to ures taken at Demir Kapija institution to 2. A further ad hoc visit to “the former Yugoslav Republic reduce incidents of violence and improve staff- of Macedonia” was carried out in October 2007. ing levels.

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Report on the periodic visit in February prisons. Furthermore, the CPT was concerned Slovenia 2006, together with the Slovenian by the lack of progress as regards remand pris- Publication on 15 February 2008 authorities’ response oners’ conditions of detention. Overcrowding The majority of the persons interviewed during continued to be an issue in the remand section the visit indicated that they had been treated at Ljubljana Prison, and remand prisoners were by the police in a correct manner. Nevertheless, not offered anything which remotely resem- a few allegations of physical ill-treatment by bled a programme of activities. Conditions at Ig police officers were received, which concerned Prison were in general satisfactory, and they mainly the time of apprehension and, less fre- were of a good standard at Koper Prison and quently, subsequent questioning. The CPT has Radece Re-education Centre, an establishment recommended that the Slovenian authorities for young persons. remind police officers, through appropriate No allegations of ill-treatment were received at means and at regular intervals, that the ill- the Fužine Home for Elderly Persons in treatment of detainees (whether of a physical Ljubljana. The CPT was impressed by the com- or verbal nature) is not acceptable and will be mitment of staff to providing the best possible the subject of severe sanctions. The report also care. Further, living conditions were of a high criticises the practice of restraining detained standard. As regards treatment, the CPT has persons in a hyper-extended position with recommended an increase in the range of ther- hand and ankle cuffs linked together behind apeutic, rehabilitative and recreational activi- the back. ties, which will require more qualified staff. As regards prisons, most inmates interviewed by the delegation considered that prison staff In their response, the Slovenian authorities treated them correctly. However, the CPT dele- provide information on the measures being gation received several allegations of physical taken to address the concerns raised in the ill-treatment by staff at Koper and Ljubljana CPT’s report.

Report on the visit in February 2005, thermore, it examined in detail the procedures San Marino together with the San Marino for involuntary hospitalisation and “obligatory Publication on 26 February 2008 Government’s response medical treatment” (TSO) of psychiatric pa- During the visit, the delegation followed up the tients. For the first time in San Marino, the del- recommendations made by the CPT after the egation also visited two homes for the elderly. visits in 1992 and 1999, in particular as regards In their response, the San Marino authorities the conditions of detention at San Marino provided information on the steps being taken Prison and the safeguards offered to persons to address the issues raised by the CPT. detained by law enforcement agencies. Fur-

Report on the periodic visit in them to the competent authorities, as well as Bulgaria September 2006, together with the strengthening the formal safeguards against ill- Publication on 28 February 2008 Bulgarian authorities’responses treatment. The majority of the persons met by the CPT As regards investigation detention facilities delegation who were, or had recently been, de- (IDFs), the CPT delegation noted a positive tained by the police, indicated that they had trend towards reducing the number of persons been correctly treated. However, a significant held for lengthy periods of time. However, the number of the persons interviewed did make situation remained problematic in other re- allegations of physical ill-treatment at the time spects, in particular at the IDF in Plovdiv, of their apprehension and/or subsequent ques- which was seriously overcrowded and contin- tioning by police officers. The Bulgarian au- ued to lack outdoor exercise facilities. Similar thorities have taken steps in recent years to deficiencies were observed at the detention fa- address the problem of ill-treatment by the cilities in Pleven, Sliven and Slivnitsa. In re- police, including the adoption of new legisla- sponse to a recommendation by the CPT that tion and a code of ethics for police staff, and the Plovdiv IDF be transferred without delay to an stepping up of police training and supervision. appropriate facility, the Bulgarian authorities At the same time, it is clear that continued de- have launched a procedure for the construction termined action is needed to combat this phe- of a new IDF. nomenon. The CPT has made The CPT delegation did not hear any allega- recommendations aimed, in particular, at im- tions of deliberate physical ill-treatment of proving screening for injuries and reporting prisoners by staff at either Sofia or Sliven Pris-

76 Reports to governments folllowing visits Council of Europe Convention for the Prevention of Torture

ons. However, there were indications that The follow-up visit to Karlukovo State Psychiat- inter-prisoner violence was on the rise. The ric Hospital revealed that some efforts had overcrowding prevailing in the prison system been made to implement the recommenda- clearly did little to defuse tensions and ren- tions made in the report on the CPT’s 2002 dered staff control more difficult. The commit- visit. As regards Byala State Psychiatric Hospi- tee has called upon the Bulgarian authorities to tal, material conditions displayed a number of redouble their efforts to combat prison over- deficiencies, and the committee has recom- crowding by adopting policies designed to limit mended that a refurbishment should be carried or modulate the number of persons sent to out without delay and that steps should be prison. Furthermore, the CPT has recom- taken to improve the food provided to patients. mended that the authorities strive to increase In their responses, the Bulgarian authorities purposeful activities for prisoners, both sen- provide information on the measures being tenced and on remand. taken to address the concerns raised in the CPT’s report.

Internet : http://www.cpt.coe.int/

Reports to governments folllowing visits 77 European Commission against Racism and Intolerance (ECRI)

The European Commission against Racism and Intolerance (ECRI) is an independent human rights monitoring body specialising in issues related to combating racism and racial discrimination in the 47 member states of the Council of Europe.

ECRI’s statutory activities are: – country-by-country monitoring, – working on general themes, – maintaining links with civil society.

Country-by-country monitoring

As part of this work, ECRI closely examines the situation of racism and intolerance in each of the member states of the Council of Europe. Based on the analysis that it undertakes, ECRI draws up, in the form of country reports, suggestions and proposals addressed to governments on how to over- come the problems of racism and intolerance identified in each country.

At the beginning of 2008, ECRI completed its In Andorra, a new criminal code came into third round of country-by-country monitoring force, providing for the racist motivation of a work and started a new monitoring cycle. criminal offence to be regarded as an aggravat- Fourth round country-by-country reports will ing circumstance and prohibiting incitement focus on the issue of implementation. They will to racial hatred as well as racist organisations. examine how ECRI’s main recommendations However, Andorra has not yet ratified Protocol from previous reports have been followed up No. 12 to the European Convention on Human and implemented. They will also include an Rights and does not have a detailed and com- evaluation of policies as well as the analysis of prehensive body of civil and administrative law new developments since the last report. A prohibiting racial discrimination in all areas. process of interim follow up has also been in- In Latvia, a clear prohibition of racial discrim- troduced, which will take place no later than ination was included in the labour code and two years following the publication of each efforts have been made to increase the number report. of non-citizens being granted Latvian citizen- ECRI’s country-by-country approach concerns ship, either by encouraging or facilitating natu- all Council of Europe member states on an ralisation. Nevertheless, a number of problems equal footing and covers nine to ten countries remain concerning the full integration of the per year. A contact visit takes place in each Russian-speaking population. The number of country prior to the preparation of the relevant racially-motivated attacks targeting visible mi- country report. norities has been increasing and the use of On 12 February 2008 ECRI published four new racist discourse, by some politicians and in the reports on Andorra, Latvia, the Netherlands media, remains a problem. and Ukraine. In these reports, ECRI recognised In the Netherlands, work is under way for the both positive developments and continuing establishment of a network of professional grounds for concern in all four countries. local anti-discrimination bureaux throughout

78 Country-by-country monitoring Council of Europe European Commission against Racism and Intolerance (ECRI)

the country, with the aim of improving the pro- administrative anti-discrimination laws. There tection provided to victims of racism and racial have been very few prosecutions against people discrimination and the monitoring of these who make anti-Semitic statements or publish phenomena. However, the tone of Dutch polit- anti-Semitic literature. Members of the Roma ical and public debate on integration and other community still face many inequalities in areas issues relevant to ethnic minorities has experi- such as education, employment and housing. enced a dramatic deterioration. The criminal The publication of ECRI’s country-by-country justice system, and notably the police, still reports is an important stage in the develop- needs to enhance its role in monitoring and ment of an ongoing, active dialogue between countering racially motivated offences. ECRI and the authorities of member states with In Ukraine, the Committee for Nationalities a view to identifying solutions to the problems and Religion became fully operational with, of racism and intolerance with which the latter among other tasks, combating racism and are confronted. The input of non-governmental racial discrimination. However, criminal legis- organisations and other bodies or individuals lation against racially motivated crimes has not active in this field is a welcome part of this been strengthened and the authorities have not process, and should ensure that ECRI’s contri- yet adopted a comprehensive body of civil and bution is as constructive and useful as possible.

Work on general themes

ECRI’s work on general themes covers impor- itoring work. As part of this work, ECRI adopts tant areas of current concern in the fight general policy recommendations addressed to against racism and intolerance, frequently the governments of member states, intended to identified in the course of ECRI’s country mon- serve as guidelines for policy makers.

General policy recommendations

ECRI has adopted, to date, 11 general policy rec- through school education; and combating ommendations, covering some very important racism and racial discrimination in policing. themes, including key elements of national leg- islation to combat racism and racial discrimi- In March 2007, ECRI decided that General nation; the creation of national specialised Policy Recommendation No. 12 would be bodies to combat racism and racial discrimina- devoted to combating racism and racial dis- tion; combating racism against Roma; combat- crimination in the field of sport, further to ob- ing Islamophobia in Europe; combating racism serving an increase in this phenomenon as part on the Internet; combating racism while fight- of its country monitoring work. It also decided ing terrorism; combating anti-Semitism; com- to issue a declaration on combating racism and bating racism and racial discrimination in and racial discrimination in football for Euro 2008.

Relations with civil society

This aspect of ECRI’s programme aims at idate this aspect of its work which involves, spreading ECRI’s anti-racism message as widely among other things, organising round tables in as possible among the general public and member states and strengthening co-operation making its work known in relevant spheres at with other interested parties such as NGOs, the international, national and local level. In 2002 media, and the youth sector. ECRI adopted a programme of action to consol-

Work on general themes 79 Human rights information bulletin, No. 73 Council of Europe

Seminar with national specialised bodies to combat racism and racial discrimination: the relationship between integration and the fight against racism and racial discrimination

The aim of the seminar was to make national specialised bodies aware of the risks and op- portunities of current integration policies and how they can actively influence them to ensure that non-discrimination is at the heart of these policies. The first part of the seminar was dedicated to the main concepts and challenges related to in- tegration and the existing legal and political framework in this field. The second part of the seminar concentrated on integration in spe- On 28 and 29 February 2008, ECRI held a cific policy areas, namely education, employ- seminar with national specialised bodies to ment and participation in public life, and how combat racism and racial discrimination on the these could be promoted and/or implemented relationship between integration and the fight by national specialised bodies to combat against racism and racial discrimination. racism and racial discrimination.

Publications

• Third Report on Andorra, 12 February 2008 • Third Report on Latvia, 12 February 2008 • Third Report on the Netherlands, 12 February 2008 • Third Report on Ukraine, 12 February 2008

Internet: http://www.coe.int/ecri/

80 Publications Equality between women and men

Since 1979 the Council of Europe has been promoting European co-operation to achieve real gender equality. The Steering Committee for Equality between Women and Men (CDEG) is responsible for co-ordinating these activ- ities.

Standard-setting initiative

Recommendation CM/ In 2003 the results of the Committee of Minis- The recommendation starts by proposing six Rec (2007) 17 of the Com- ters’ monitoring of compliance with commit- general standards which should be adopted in mittee of Ministers on Gender Equality Stand- ments by member states on the theme all legal and political measures: ards and Mechanisms: a “equality between women and men” showed • Gender equality as a principle of human new instrument at the that although de jure gender equality had been rights and as a government responsibility. disposal of member attained, de facto gender equality was far from states for achieving de • Gender equality as a concern and as a re- facto gender equality. being a reality, despite the progress that has sponsibility of society as a whole. been made. In the light of these results, the • Commitment, transparency and accounta- Committee of Ministers requested that a rec- bility in the achievement of gender equality. ommendation on minimum standards of equality between women and men, including • Ratification of relevant treaties and imple- national gender equality mechanisms, should mentation of all relevant international legal be drafted; and in 2004 it instructed the Steer- instruments. ing Committee for Equality between Women • Adoption and effective enforcement of and Men (CDEG) to examine the feasibility of gender equality legislation and integration drafting such a recommendation. The CDEG of a gender perspective into legislation in all subsequently entrusted this task to a group of areas. specialists. • Elimination of sexism from language and At the end of the two-year mandate (2005- promotion of language that reflects the 2006) the work of this group of specialists re- principle of gender equality. sulted in Recommendation CM/Rec (2007) 17 These general standards are followed up by on Gender Equality Standards and Mecha- standards in specific areas relating to women’s nisms, which was adopted by the Committee of and men’s participation in private and family Ministers on 21 November 2007. life, economic life, public and political life and This recommendation is an additional re- the possibility of reconciling these different sponse by the Council of Europe to assist aspects of life. They also cover matters relating member states to continue and to step up their to the exercise of fundamental rights of the efforts to achieve de facto gender equality. It person such as education and culture, social can be considered as a “gender equality consti- protection, health, etc. Obstacles to the tution” because it takes into account all fields achievement of gender equality (such as vio- and all aspects of life as well as existing princi- lence against women, trafficking in human ples and standards. Consequently, govern- beings or the place of women in conflict and ments can monitor if the de jure and de facto post-conflict situations, etc.) which are an measures which they have taken for attaining offence to women’s dignity and a violation of gender equality are sufficient and, if necessary, their human rights are also addressed. take other measures or reinforce existing meas- In order to be efficiently and effectively imple- ures to achieve effective gender equality in all mented, all these measures should be accompa- fields and all aspects of life. nied and supported by mechanisms, strategies

Standard-setting initiative 81 Human rights information bulletin, No. 73 Council of Europe and tools and to this end, the recommendation • drafting studies and instruments for evalu- outlines those which are considered as indis- ating the situation of women and men and pensable. It focuses on: measuring the progress achieved; • establishing or reinforcing gender equality national mechanisms with effective power • establishing co-operation and partnerships and efficient means of action; with a large number of social actors. This is • implementing specific action to remedy sit- seen as an absolute necessity for the success uations of discrimination and inequality of of gender equality policies. which women are victims; • using strategies such as gender mainstream- Thanks to this new instrument, the Council of ing, including gender budgeting, to take Europe can pursue its pioneering role of pro- into account the specific needs of women moting gender equality as an integral part of and men in legislation, policies and meas- human rights and a fundamental criterion of ures; democracy.

Financing for gender equality

At the 52nd session of the Commission on the Europe, Ms Maud de Boer Buquicchio. The fol- 52nd session of the Com- Status of Women (CSW), devoted to the theme lowing panellists participated in the debate: mission on the Status of Women (CSW) (New York, Financing for gender equality and empower- • the General Secretary for Gender Equality 25 February-7 March ment of women, the Gender Equality and Anti- for the Ministry of the Interior of Greece, Ms 2008) Trafficking Division and the Permanent Repre- Eugenia Tsoumani; sentation of Azerbaijan to the United Nations • a member of the Committee on Equal Op- co-organised a side-event entitled Gender portunities for Women and Men of the Par- Equality Standards and Mechanisms in Europe: liamentary Assembly of the Council of Financing and Effective Functioning (27 Febru- Europe, Ms Carina Hägg (Sweden); ary 2008). This side-event was chaired by Ms Hijran Hu- • the Director of the Institute for Gender seynova, Head of the State Committee for Equality of Belgium, Mr Michel Pasteel. Family, Women and Children Affairs of Azer- This side event provided the opportunity to baijan, and was opened by the Permanent Rep- disseminate and publicise the new Recommen- resentative of Azerbaijan to the United dation CM/Rec (2007) 17 of the Committee of Nations, Ambassador Agshin Mehdiyev, and Ministers on Gender Equality Standards and the Deputy Secretary General of the Council of Mechanisms.

Council of Europe Campaign to Combat Violence against Women, including Domestic Violence

In 2007, the Council of Europe launched its the campaign, as laid out in the campaign blue- Campaign to Combat Violence against print: legal and policy measures, support and Women, including Domestic Violence. Many protection of victims, data collection and activities have since been implemented under awareness raising. The main issues presented all three campaign dimensions: governmental, and discussed are available on the campaign parliamentary, and local and regional. As a website. result of the campaign’s three-tier approach, Apart from devoting regional seminars to spe- activities reach out to decision makers at cific aspects of preventing and combating vio- various levels of society and involve many dif- lence against women, the Council of Europe is ferent actors. studying the issue of minimum standards for Intergovernmental activities have mainly support services and initiatives to collect ad- focused on furthering the knowledge base on ministrative data on violence against women in current developments and good practices in more detail. preventing and combating violence against With the help of a carefully designed question- women. To this end, five intergovernmental re- naire and an analysis of replies and other avail- gional seminars have been organised which are able material, a study on minimum standards based on the core objectives and messages of for services for women victims of violence is

82 Financing for gender equality Council of Europe Equality between women and men

currently being developed. The preliminary lines on collecting administrative-based data findings of this study were presented at a on violence against women in order to set up Council of Europe Conference on Support Serv- administrative data systems that go beyond the ices for Women Victims of Violence, held on internal recording needs of statutory agencies 6-7 December 2007 in Strasbourg. Ninety par- such as the police, the judiciary, public health ticipants, including government and non- and social welfare services. This study will be governmental representatives, from 38 Council available in April/May 2008. of Europe member states discussed the bene- fits of defining minimum standards, what they As the body overseeing implementation of the should encompass and how they should be ap- campaign, the Council of Europe Task Force to plied. As a follow up to the conference, partici- Combat Violence against Women, including pants were invited to submit their opinion on Domestic Violence, has held its fifth meeting. the proposed standards during an online con- This meeting was mainly devoted to drafting sultation held in January 2008. The response to the task force’s final activity report, which will this participatory approach led to a significant contain its conclusions and assessment of re-shaping of the standards. A final version of measures and actions taken at national level to the study will be published in April 2008. combat violence against women, including do- Another study that is currently being carried mestic violence, as well as recommendations out concerns the question of possible guide- for future Council of Europe action in this field.

Looking forward

In order to gather all focal points (governmen- Women, including Domestic Violence, the tal representatives responsible for ensuring the focal points are invited to submit final reports campaign’s implementation at national level) on national campaign action. for a third and last time, a Meeting of National Further information on planned activities for Focal Points of the Council of Europe Cam- all three dimensions of the campaign and paign to Combat Violence against Women, in- much more can be found on the website. cluding Domestic Violence will be held on 21 and 22 April 2008 in Strasbourg. It will The campaign will come to an end with a high- provide a forum for presenting final reports on level closing conference held on 10 and 11 June national action carried out within the frame- 2008 in Strasbourg. On this occasion, the work of the Council of Europe campaign. It will Council of Europe Task Force to Combat Vio- also be an opportunity to exchange good prac- lence against Women, including Domestic tices and effective measures at national level to Violence, will present its final activity report. combat violence against women. In prepara- As the final campaign outcome, it will show the tion of the meeting and for consideration by way forward to eliminating violence against the Task Force to Combat Violence against women.

Internet: http://www.coe.int/equality/ http://www.coe.int/stopviolence/

Council of Europe Campaign to Combat Violence against Women, including Domestic Violence 83 Action against trafficking in human beings

Trafficking in human beings constitutes a violation of human rights and is an offence to the dignity and the in- tegrity of the human being. In 2005, to fight this modern form of slavery, the Council of Europe adopted a com- prehensive treaty aimed at preventing trafficking, protecting victims and prosecuting traffickers. The Council of Europe Convention on Action against Trafficking in Human Beings (CETS No. 197) entered into force on 2 February 2008.

Entry into force of the Convention on Action against Trafficking in Human Beings [CETS No. 197]

The convention entered into force on 1 Febru- • Riga, 21-22 September 2006: Prevention, ary 2008 in Albania, Austria, Bulgaria, Protection and Prosecution Croatia, Cyprus, Denmark, Georgia, Moldova, • Rome, 19-20 October 2006: Prevention, Pro- Romania and Slovakia. tection and Prosecution It has since been ratified (situation as at 29 • Oslo, 1-2 November 2006: Prevention, Pro- February 2008) by a further five countries and tection and Prosecution will enter into force in Bosnia and Herze- • Athens, 5-6 December 2006: Prevention, govina, France, Malta and Norway on 1 May Protection and Prosecution 2008 and in Portugal on 1 June 2008. • Nicosia, 15-16 February, 2007: Prevention, Twenty-three other member states have Protection and Prosecution signed but not yet ratified the convention. • Berlin, 19-20 April 2007: Measures to Protect The entry into force marks the end of the and Promote the Rights of Victims Council of Europe Campaign to Combat Traf- • Yerevan, 5-6 September 2007: Measures to ficking in Human Beings, which was launched Prevent, Protect and Prosecute in 2006 under the slogan “Human beings - not • Paris, 27-28 September 2007: Criminal and for sale”. The main aims of this campaign Procedural Measures were: • Belgrade, 18-19 October 2007: Measures to Protect and Promote the Rights of Victims • to raise awareness of the problem of traf- ficking in human beings as well as possible • London, 10-11 December 2007: Measures to solutions to it among governments, parlia- Protect and Promote the Rights of Victims mentarians, local and regional authorities, A total of 41 member states participated in one NGOs and civil society, and or more of these seminars which aimed to high- light the measures which can be taken to • to promote the widest possible signature prevent this new form of slavery, to protect the and ratification of the Council of Europe human rights of victims and to prosecute the Convention on Action against Trafficking in traffickers and their accomplices. The seminars Human Beings. were attended on average by between 100 and At the core of the campaign was a series of re- 150 participants and included representatives gional information and awareness-raising sem- from governments, national parliaments and inars: non-governmental organisations. The proceed- • Bucharest, 4-5 April 2006: Prevention, Pro- ings of the seminars are available on the anti- tection and Prosecution trafficking website: www.coe.int/trafficking.

84 Entry into force of the Convention on Action against Trafficking in Human Beings [CETS No. 197] Council of Europe Action against trafficking in human beings

In addition, the Council of Europe prepared a aration for the entry into force of the study entitled “Trafficking in human beings: convention. Council of Europe member states, Internet recruitment” on the misuse of the In- observer states, international governmental ternet for the recruitment of victims of traffick- and non-governmental organisations were ing in human beings and a seminar on this invited to participate in this event which aimed subject was organised in Strasbourg on 7-8 June to familiarise them with the convention’s mon- 2007. This study and the proceedings of the itoring mechanism: the Group of Experts on seminar are also available on the website. Action against Trafficking in Human Beings One of the last activities to be carried out as (GRETA) and the Committee of the Parties. part of the campaign was a conference on the The proceedings of this conference are availa- convention’s monitoring mechanism (Stras- ble on the website. bourg, 8-9 November 2007), organised in prep-

Setting up the monitoring mechanism of the convention

Experience proves that, in areas where inde- ties. Article 37 (2) stipulates that the Commit- pendent human rights monitoring mecha- tee of the Parties should meet within a period nisms exist, as is the case in the fields of torture of one year following the entry into force of the and minorities for example, they have high convention in order to elect the members of credibility. The independent monitoring mech- GRETA. Activities in 2008 will therefore focus anism of the Convention on Action against on making the necessary preparations for this Trafficking in Human Beings, as foreseen by meeting. the convention, is seen as one of its main strengths. Chapter VII – Monitoring Mecha- For up-to-date information on the convention, nism (articles 36, 37 and 38) lays down the pro- including the chart of signatures and ratifica- visions aimed at ensuring the effective tions, please consult our website: www.coe.int/ implementation of the convention by the par- trafficking

Internet: http://www.coe.int/trafficking/

Setting up the monitoring mechanism of the convention 85 Media and information society

Constant developments in the information society present the Council of Europe with the challenge of defend- ing and maintaining its fundamental principles in new environments. While pursuing its efforts in “traditional” media and their roles in the process of democracy, the Steering Committee on Media and New Communication Services (CDMC) also works on freedom of expression in the complex context of new communications services.

Texts and instruments

As a result of the work of the CDMC and its groups of specialists, a number of texts were prepared and submitted to the Committee of Ministers for adoption.

Media coverage of election campaigns: a Therefore, the Council of Europe recommends Revised Recommenda- challenge for democracy that the governments of member states should tion on measures con- cerning media coverage examine ways of ensuring respect for the prin- of election campaigns, During elections, the editorial independence of ciples of election campaign coverage by the adopted on 7 November the media becomes particularly important if media. This should include non-interference 2007 democracy is to prevail. The coverage of elec- by the authorities, protection against attacks, tions by the media (including written press, intimidation and all kind of pressure on the broadcast media as well as online media) media as well as transparency regarding owner- should be fair, balanced and impartial. Public ship of the media by public authorities, the service media have a particular responsibility right of reply and other remedies, and opinion as they have to provide information as well as polls. Member states should ensure that these broadcast political messages. Regulatory au- principles are applied by all media which thorities have an essential role here. provide coverage of election campaigns.

For an affordable, free, safe, continuous civil society. In particular, it encourages the Recommendation on and diverse access to the Internet private sector to be aware of its changing measures to promote the public service value of the In order to respond to users’ legitimate expec- ethical responsibilities. Policies that are devel- Internet, adopted on tations that Internet services should be accessi- oped should aim at protecting human rights, 7 November 2007 ble, affordable, safe, reliable and continuous, pluralism, cultural diversity and democracy. It the Council of Europe recommends that calls on member states to enable a greater member states should promote the public number of people to have access to the Internet service value of the Internet. The Internet has and to support freedom of expression and in- become an essential tool in daily life, allowing formation online, whilst seeking to ensure that people to exercise their human rights and take its content can be enriched by all different re- part in public life and democratic processes as gions, countries and social groups in order to well as encouraging expression, creativity and achieve real pluralism of content. the exchange of information and ideas. It pro- motes the exercise and enjoyment of certain The document encourages member states to rights but can also put them in danger (for engage in international legal co-operation in example the right to private life, human dignity order to reinforce security and protect interna- and even the right to life). tional law on the Internet. To this end, it en- The adopted text invites governments to define courages governments to sign and ratify the the roles and responsibilities of the main stake- Council of Europe Convention on Cybercrime holders – the public and private sectors and and the Convention on the Protection of Chil-

86 Texts and instruments Council of Europe Media and information society

dren against Sexual Exploitation and Sexual Internet Governance Forum, which took place Abuse. in Rio de Janeiro from 12 to 15 November 2007, The Council of Europe brought the message in- at which it organised a workshop dedicated to cluded in this recommendation to the World the public service value of the Internet.

Declaration on the alloca- The digital dividend is a public asset All efforts must be undertaken to ensure effec- tion and management of tive and fair access for all to new communica- the digital dividend and In a growing number of countries, radio and public interest, adopted tion services, education and knowledge, on 20 February 2008 television programmes are broadcast digitally especially with a view to preventing digital ex- rather than using analogue. A result of this clusion and to narrowing or, ideally, bridging switchover is the “digital dividend”, which is the the digital divide. share of the frequencies no longer used. These Furthermore, the digital dividend is an excel- frequencies can be used for other services and lent opportunity to meet the rapidly growing could provide an important resource with a po- demand for new services and new technologi- tentially high commercial value for govern- cal developments such as broadband applica- ments that may wish to let or sell them to tions or mobile multimedia. telephone networks or use them for the trans- In terms of future decisions, the 47 members mission of other commercial services. states of the Council of Europe have made it clear that they wish to acknowledge the public It is important for democratic societies that a nature of the digital dividend and have stressed wide variety of independent and autonomous the need for it to be managed in the public in- media can exist together, permitting the diver- terest. The Council of Europe underlines the sity of ideas and opinions to be reflected, and aim and fundamental role of public service protecting media pluralism, cultural diversity, media in the new digital environment – pro- social cohesion, democratic participation, con- moting the values of democratic societies – and sumer protection and privacy. wishes it to be duly taken into account.

Declaration on protecting Protecting children on the Internet crimination, bullying, stalking and other forms the dignity, security and of harassment. privacy of children on the More and more children and young people are Internet, adopted on Furthermore, there is an emerging tendency 20 February 2008. making use of the many possibilities offered by for certain types of institutions, such as educa- the Internet for educational and entertainment tional establishments and prospective employ- purposes and are also using it as a means of ers, to seek information about children and communication. However, by offering a free young people when deciding on important and openly accessible space, the Internet has its issues concerning their future. risks. The representatives of the Council of The Council of Europe is already working on Europe who attended the Internet Governance the risks of the Internet for children. Con- Forum in Rio de Janeiro in November 2007 dis- vinced that the well-being and best interests of cussed the worrying issue of the permanence of children are fundamental values shared by all content put on the Internet by users and how member states which must be promoted this content can be used later, often without without discrimination, it invites the member the knowledge of the original users. People are states to explore the feasibility of removing or often unaware that content that they post on deleting certain types of content, including its the Internet will remain there. In that respect, traces, within a reasonably short period of time. children are particularly at risk as their online Media literacy, particularly online media liter- activities can expose them to criminal activities acy, is considered to be particularly important such as solicitation for sexual purposes or oth- by the Council of Europe and work has been erwise illegal or harmful activities such as dis- undertaken in that direction.

Internet Governance Forum (IGF)

Rio de Janeiro (Brazil), Some 2 000 representatives from 100 countries, (Brazil). The Deputy Secretary General of the 12-15 November 2007 drawn from government, the private sector, Council of Europe, Maud de Boer-Buquicchio, expert groups and NGOs, attended the second took part in the Forum together with several Internet Governance Forum (IGF) held other Council of Europe experts and addressed between 12 and 15 November in Rio de Janeiro the participants as part of the opening cere-

Internet Governance Forum (IGF) 87 Human rights information bulletin, No. 73 Council of Europe mony. The IGF focused on the following broad Europe organised and co-organised eight work- themes: access, openness, diversity, security shops on the following themes: and emerging issues. • freedom of expression as a security issue; The Council of Europe contributed substan- • protecting children on the Internet; tially to the substance of the forum by putting • public participation in Internet governance: forward its views on the benefits and chal- challenges, good practices and proposed so- lenges of the Internet for economic growth and lutions; social development. It underlined the public • the Council of Europe Convention on Cy- service value of the Internet and the impor- bercrime; tance of users’ rights, in particular freedom of expression and safety. The Convention on the • “quality” and the Internet: using and trust- Protection of Children against Sexual Exploita- ing Internet content; tion and Sexual Abuse was central to the Or- • legislative responses to cyber-threats; ganisation’s contribution. • content regulation and the duty of states to Besides an important written contribution – protect fundamental rights; Building a free and safe Internet – the Council of • the public service value of the Internet.

Wild Web Woods – Play and avoid dangers on the Internet

The Internet has hugely influenced our society Internet literacy and our lives and it is increasingly important to use it safely, competently and responsibly. As part of its Internet literacy programme and to mark Safer Internet Day 2008, the Council of Europe launched a video game, Through the Wild Web Woods. Presented as a fairytale, the game teaches children (and adults!) how to surf the Internet and avoid dangers. The game is available online in 13 languages.

Co-operation and assistance

As part of a European Union/Council of Europe joint programme for Ukraine and the South Cauca- sus, the Media and Information Society Division organised a series of activities concerning the media in Armenia, Georgia and Ukraine.

Armenia

Conference on “Media and elections, the order to exchange views on whether this role is Yerevan, 14 November democratic responsibility of the media” satisfactorily fulfilled by the media in Armenia, 2007 The conference was the first in a series of activ- to identify possible shortcomings and to con- ities aimed at improving the professionalism of sider steps to be taken to improve the situation. the Armenian media in covering the 2008 pres- As a “kick-off” to the remaining, mainly practi- idential elections. It aimed to give a platform to cal training on media professionalism, the con- representatives from the media, politics and ference aimed to raise awareness on these civil society in Armenia in order to discuss the activities and provide an opportunity to iden- role and responsibilities of the media in a dem- tify potential problems which the Armenian ocratic society, and in particular during elec- media may encounter, so that they could form tions, in the light of the relevant Council of part of future training sessions. Europe standards. The 30 participants met in

88 Wild Web Woods – Play and avoid dangers on the Internet Council of Europe Media and information society

Tsakhkadzor, 16-17 No- Training seminars for managers, senior election time with a focus on the principles vember, Alaverdi, journalists and other media that should guide journalists during the cover- 20-21 November, Jermuk, 23-24 November 2007 professionals on election coverage age of elections and election campaigns. These two-day training sessions aimed at im- proving the work of media professionals The participants were asked to debate the “real (senior journalists, managers and editors) in issues”, which enabled them to highlight key the run-up to the 2008 Armenian Presidential public concerns and the needs of the voters as elections and to raise their awareness of the rel- well as the main legal and ethical dilemmas evant Council of Europe standards. A total of faced by journalists during elections. Follow-up 68 participants, mostly representing print and sessions focused on editorial development and audiovisual media, were first given training on innovative ways of covering election cam- the democratic responsibility of the media at paigns.

Yerevan, 13-14 November Workshop on election coverage by the presidential election. The programme com- 2007 media for the managers and journalists prised various technical modules designed by of the public TV of Armenia the EBU. The 19 participants then had the op- The objective of this two-day workshop was to portunity to discuss audiences’ perceptions of give PTV executives and journalists clear stand- television news, analyse real examples and ards for covering elections, specifically the train with practical exercises.

Yerevan, 20-21 December Training seminar for journalists on ing Corporation, debates and practical assign- 2007 election coverage ments. The participants were active and This seminar focused on improving the stand- committed and very open to new ideas and to ard of election coverage and putting the focus the democratic demands of election reporting more on voters and issues which dominate as formulated by the Council of Europe. their agenda, the consequences of politics and A final assessment seminar on the quality of law making, seeking solutions to society’s main the media coverage during the elections will be problems, engaging the voters in election cov- held after the elections, in March 2008. erage, and seeking interactivity between voters, As a follow up and support to the improve- politicians and politics. Sixteen professionals ments sought, a practical handbook on profes- participated in the programme which com- sional media coverage of elections will be prised short lectures, concrete examples of drafted and published in Armenian in election coverage from the Danish Broadcast- April 2008.

Georgia

Tbilisi, 19-20 December Practical tools for news coverage the 12 participants took an active part in group 2007 The objective of this workshop was to give ex- discussions, practical exercises and report ecutives from Public Broadcasting of Georgia writing and had the opportunity to analyse and clear standards for covering elections, specifi- compare examples drawn from programmes of cally the presidential election scheduled for members of the EBU, the co-organiser of this January 2008. During the two days of training, workshop.

Ukraine

19-21 and 21-23 Novem- Workshop on documentaries for the total of 45 film directors, editors and ber 2007 market for the managers and journalists documentary-makers to learn and compare of the National Television and Radio of modern European documentaries and new Ukraine (NTU) techniques, to meet others and to exchange ex- The workshops were were organised following periences. The training comprised five special- a request by the NTU and were designed to ised modules related to documentaries, and improve participants’ understanding of the their impact will be included in a production various elements that make a well-written and documenting the changes currently taking well-produced documentary. They enabled a place in Ukraine and within its democracy.

Co-operation and assistance 89 Human rights information bulletin, No. 73 Council of Europe

Seminar for the staff of the National bodies with regard to content monitoring and 20 November 2007 Television and Radio Broadcasting were able to discuss to what extent the Ukrain- Council of Ukraine ian regulator conforms to these standards. In the light of practical examples and of principles This seminar was designed for the staff of the applied in France, the Netherlands and Hun- National Television and Radio Broadcasting gary, they discussed the problems and the Council of Ukraine in order to help improve its absence of appropriate legal regulations that capacity and transparency. they face in Ukraine.

The 30 participants were given an overview of the European standards concerning regulatory

Seminar on corruption in the media: Journalists coming from the most prestigious Kyiv, 28 November 2007 Ukraine’s realities and Poland’s Polish media presented the Polish experience experience with regard to overcoming corruption within The aim of this seminar was to discuss prob- the media and fruitful discussions followed lems related to corruption in the media in about mechanisms for overcoming problems of Ukraine and the negative impact that corrup- corruption and its importance for society. tion in the media has on civil society. It was at- tended by 40 representatives from regional The seminar also helped participants to under- media from all over Ukraine, Kyiv-based media stand the importance of journalists’ awareness and NGOs. in the process of fighting corruption.

Seminar on regulating online media in tional Commission on Freedom of Speech and Kyiv, 12 December 2007 Ukraine and Europe Development of the Information Sphere. The experts presented the Council of Europe The objectives of this seminar were to enable standards. They stressed the potential dangers the 30 representatives of online media, NGOs, for freedom of expression if a registration re- Internet business organisations, information quirement for online media (currently under agencies and journalists to discuss the regula- discussion in Ukraine) was introduced and tion of online media in Ukraine, the relevant made reference to Council of Europe standards Council of Europe standards and practical ex- and the case-law of the European Court of periences of regulating online media from Human Rights. This led to an overall consensus other European countries. It was organised to- among participants that a registration require- gether with Internews Ukraine and the Na- ment should not be introduced.

Seminar for judges on media coverage of ists’ access to trials, respect for the principle of Zaporizhia, 18 December judicial proceedings presumption of innocence and protection of 2007 judges’ reputations. They also received assist- The seminar was designed to familiarise the ance for a dialogue between judges and jour- participants with the standards of the Euro- nalists from the region and one of the pean Convention on Human Rights and the outcomes of this was an agreement on the pres- case-law of the European Court of Human ence of the press in courtrooms and on provid- Rights on freedom of expression and informa- ing information concerning judicial tion. The training course was attended by 33 proceedings. judges from appeal courts and district courts in the Zaporizhia region who discussed journal-

Seminar for journalists on media topics with a view to achieving co-operation on Zaporizhia, 19 December coverage of trials a commonly understood basis and on princi- 2007 ples that would be accepted by all parties. It This seminar was the counterpart for of the was attended by 32 chief editors and journalists previous seminar for judges and was for press from both newspapers and radio stations. professionals from the Zaporizhia region. It had the same objectives and covered the same

90 Co-operation and assistance Council of Europe Media and information society

Serbia

As part of a joint programme with the European Union on supporting the promotion of freedom of expression and information and freedom of the media, according to the Council of Europe and Euro- pean Union standards, the Media and Information Society Division organised a series of activities concerning the media.

Belgrade, 8-9 November Seminar on freedom of expression and privacy were all covered in the seminar, along 2007 the right to privacy with an examination and comparison of the ex- The objective of this seminar was to discuss the periences of other European countries. It was general principles of freedom of expression and attended by 30 judges, lawyers and journalists. information and the right to privacy in a dem- ocratic society under the European Convention The journalists’ attention was drawn to their on Human Rights. professional responsibilities, the profession’s The protection of privacy and personal data need to restore the public’s confidence in the and the right to use one’s image and voice, the media and to balance public interest in right of the public to be informed and strate- freedom of expression with the legitimate ex- gies for balancing freedom of expression and pectation of privacy of individuals and respect information in the media and the right to for their human dignity.

Belgrade, 17 December Seminar on ethical standards and self- ethical standards in modern Europe, using ex- 2007 regulation of the media amples from a neighbouring country (Bosnia This seminar aimed to present ethical profes- and Herzegovina)and analysing Serbian prac- sional standards which should be applied to tices. the work of journalists and, as the law does not suffice, the training also emphasised the need to develop mechanisms of self-regulation in the media which, together with a respect for a professional code of conduct, could improve public confidence in the media and provide better quality information. The 20 journalists, editors and media profes- sionals who attended were able to improve their knowledge of the role and importance of

Montenegro

Podgorica, 28 November Seminar on the transformation of public The 50 participants from the Ministry of Cul- 2007 service broadcasting in Montenegro ture, the Media Council, the RTCG (public The objectives of the seminar, which was co- service broadcaster), media professionals, jour- organised with the OSCE, were to present the nalists, representatives from other interna- Council of Europe and European Union stand- tional organisations and NGOs also discussed ards on public service broadcasting, practical major achievements and challenges for the experiences of changeover from state to inde- changeover to public service broadcasting in pendent public service broadcasting and best Montenegro. practices from other European countries.

Looking forward

Living together

At its sixth meeting in November 2007, the media to living peacefully and harmoniously CDMC launched a new project entitled Living together in a democratic society. Topics that Together. The aim of the project is to prepare a will be explored include the role of media in reference tool on the Council of Europe stand- promoting social cohesion, understanding, tol- ards which concern the contribution of the

Looking forward 91 Human rights information bulletin, No. 73 Council of Europe erance, dialogue and democratic participation nities, young people, etc. The text will be in- of individuals. formative, yet easy to read and understand. A The reference tool will target the widest possi- book edition is due to be published in 2009 and ble audience – policy makers, governments, ed- an online version supplemented by other web- ucators, media professionals, non- based sources is also envisaged. governmental organisations, various commu-

Recourse for the media against attacks on their freedom

In June 2007 the Committee of Ministers gave als and groups affected by statements in the the CDMC the mandate of examining and media to obtain redress through these mecha- making recommendations on media com- nisms. On the basis of the study and of an anal- plaints procedures and media complaints ysis of good practices, a recommendation will bodies established in member states, taking be finalised in 2008. into account any difficulties faced by individu-

Fight against terrorism and freedom of expression and information

Since September 2001, in order to fight terror- decided to launch a thematic study examining ism, a number of states have created legal in- developments in national legislations and, if struments which may have a negative impact needed, to engage in further action on the on freedom of expression and information and subject by hearings with and concrete propos- on freedom of the media. Therefore, the CDMC als to the Committee of Ministers.

Neighbouring rights of broadcasting organisations

The work done by of the World Intellectual This subject is not new to the Council of Property Organisation (WIPO) on an interna- Europe given the standard-setting instruments tional treaty on this subject has been dead- it has already prepared, in particular the 1994 locked for a few years now but there is European Convention relating to questions on consensus among European states on the need Copyright Law and Neighbouring Rights in the for such an instrument. Professional organisa- Framework of Transfrontier Broadcasting by tions have asked the Council of Europe to Satellite [CETS No. 153] and the 2001 European explore the possibility of preparing a draft con- Convention on the Legal Protection of Services vention with a view to better protecting the based on, or consisting of, Conditional Access neighbouring rights of broadcasting organisa- [CETS No. 178]. tions, for example when facing the growing The CDMC has consequently resumed working problem of piracy and keeping in mind the on the subject and, if it appears justified, will desire to protect European culture. prepare a draft convention.

Internet: http://www.coe.int/media/

92 Looking forward Framework Convention for the Protection of National Minorities

The Framework Convention for the Protection of National Minorities is the first ever legally binding multilateral instrument devoted to protecting national minorities. It clearly states that protecting national minorities forms an integral part of the international protection of human rights.

Second monitoring cycle

Second cycle state reports were received from lic on 7 December and Romania on 14 Decem- Poland (8 November 2007) and Bulgaria ber. (23 November 2007). Follow-up meetings on the implementation of The Advisory Committee for the Protection of the Framework Convention for the Protection National Minorities adopted second opinions of National Minorities were organised in on Sweden on 8 November and Azerbaijan on Armenia on 13 November, the Slovak Repub- 9 November.

Switzerland

Switzerland submitted its A delegation from the Advisory Committee in Buech near Bern followed by a round-table second state report in visited Switzerland from 19 to 21 November discussion in Fribourg on the same topic. January 2007. Following its visit, the Advisory 2007. It was the second visit to Switzerland, fol- The delegation held meetings in Bern with rep- Committee adopted its lowing that of 2002. The visit facilitated the Ad- resentatives from the ministry of foreign af- own report (which is visory Committee’s monitoring of the fairs, members of parliament and called an opinion) on implementation of the treaty in Switzerland. representatives from various offices from the 29 February 2008. The opinion has been sent to federal administration. The delegation also the Swiss Government for The delegation mainly discussed the legal and met several non-governmental associations comments. The Commit- factual position of the linguistic minorities, in- which represent minorities and/or promote tee of Ministers will then cluding in the trilingual canton of Graubünden their language and culture, as well as human adopt conclusions and recommendations con- and in the bilingual cantons of Bern, Fribourg rights NGOs. A session was devoted to the lin- cerning Switzerland. and Wallis. The situation of the Jewish commu- guistic situation and main issues faced by the nity and of Travellers was also addressed, multilingual cantons, which was attended by bearing in mind that both groups can rely on representatives from the authorities and civil the protection offered by the framework con- society. A decentralised round table was held in vention. The visit focused in particular on the Fribourg to discuss the situation of Travellers in situation of Travellers and the current situation this canton, in the presence of the Prefect of the concerning transit sites and stopping places, Sarine District and representatives from differ- with an on-the-spot visit to the stopping place ent municipalities.

Second monitoring cycle 93 Human rights information bulletin, No. 73 Council of Europe

Lithuania

A delegation from the Advisory Committee on framework pertaining to the protection of na- Lithuania submitted its the Council of Europe’s Framework Convention tional minorities was also considered by the second state report in No- vember 2006. Following for the Protection of National Minorities delegation. In addition, the delegation visited its visit, the Advisory visited Lithuania from 19 to 22 November 2007. localities inhabited by persons belonging to na- Committee adopted its This was the Advisory Committee’s second visit tional minorities – Nemenčinė and Kirtimai. own report (opinion) on 28 February 2008, which to this country and its aim was to facilitate the The delegation held meetings in Vilnius with has been sent to the monitoring of the implementation of this representatives of the relevant ministries, Lithuanian Government treaty in Lithuania. members of parliament and representatives of for their comments. The Issues relating to the effective participation of other bodies and departments, such as the Committee of Ministers will then adopt conclu- persons belonging to national minorities in State Commission for the Lithuanian Lan- sions and recommenda- public affairs and socio-economic life were guage. Meetings with the Office of the Equal tions concerning raised. In this respect, integration of disadvan- Opportunities Ombudsperson and the Parlia- Lithuania. taged groups into society and relevant pro- ment Ombudsperson were organised and the grammes in the field of employment, housing, delegation also met the Council of National health and education were discussed. The dele- Communities, which represents the various na- gation also examined issues relating to educa- tional minorities living in Lithuania. The dele- tion in/of minority languages in schools and gation also held meetings with minority non- the use of minority languages in contacts with governmental associations as well as human administrative authorities. The legislative rights NGOs.

First monitoring cycle

Montenegro

A delegation from the Advisory Committee on work for the protection of national minorities Montenegro submitted the Framework Convention for the Protection together with its effective implementation were its first state report in July 2007. Following its visit, of National Minorities visited Montenegro at the centre of the discussions. the Advisory Committee from 5 to 8 December as part of its monitoring adopted its own report of the implementation of the convention by The delegation had meetings with the repre- (opinion) on 28 February Montenegro. In addition to Podgorica, the del- sentatives of all relevant ministries, as well as 2008, which has been sent to the Montenegrin egation visited Bijelo Polje, Berane, Rozaje and with the constitutional court, the ombuds- Government for com- Tuzi. man’s office and the parliament. In addition to ments. The Committee of This visit took place less than two months after contacts with public officials, the delegation Ministers will then adopt conclusions and recom- the adoption of the new Constitution of also met persons belonging to national minor- mendations concerning Montenegro: the resulting legislative frame- ities and human rights NGOs. Montenegro.

Publications

The Secretariat of the Framework Convention pertaining to the monitoring mechanism in for the Protection of National Minorities pro- general and the Advisory Committee in partic- duced the 4th edition of the Collected Texts ular. It further provides the state of signatures (ISBN 978-92-871-6382-0). and ratifications as well as declarations and The aim of the collection is to provide a user- reservations. It also contains a list of state friendly compilation of the basic texts concern- reports received and opinions of the Advisory ing the framework convention. In addition to Committee adopted under both the first and the framework convention and its explanatory second monitoring cycles. memorandum, the collection contains texts

Internet: http://www.coe.int/minorities/

94 First monitoring cycle Human rights co-operation and awareness

Bilateral and multilateral human rights co-operation and awareness programmes are being implemented by the Directorate General of Human Rights and Legal Affairs of the Council of Europe. They are intended to assist member states to fulfil their commitments in the human rights field.

Training and awareness-raising activities

Since 1993 the Council of Europe and the European Commission have established Joint Programmes for countries in Central and Eastern Europe. They consist of a series of activities agreed between the European Commission and the Council of Europe, in consultation with the governments of the con- cerned countries, designed to facilitate and support legal and institutional reform. Training courses, expert reports and advice to governments, conferences, workshops, seminars and publication dis- semination are all usual working methods.

Programme “Development of a reliable and functioning prison system respecting fundamental rights and standards and enhancing of regional co-operation in the western Balkans”

Cascade seminar on European human Training-of-trainers course on human rights standards for operational and rights in prison managerial prison staff Skopje, “the former Yugoslav Republic of Zagreb, Croatia, 22-23 January 2008 Macedonia”, 29-31 January 2008 This seminar targeted participants from This training seminar aimed to increase the Croatia who were trained by national trainers knowledge of operational and managerial who had themselves been previously trained on prison staff on specific articles of the ECHR, in European human rights standards in a prior particular Articles 2, 3, 5 and 8. training-of-trainers session within the project. Round tables on “Presentation of the The participants were familiarised with the guidelines on inspection and ECHR, ECtHR case-law and CPT standards. monitoring of prisons”

Round table to present the “guidelines Skopje, “the former Yugoslav Republic of on governmental and independent Macedonia”, 28 January 2008, Pristina, inspection mechanisms of prisons” Kosovo-UMNIK, 1 February 2008, Tirana, Albania, 8 February 2008 Zagreb, Croatia, 24 January 2008 The discussions at these round tables focused The participants of this round table were from on the strengthening of the domestic mecha- the ministry of justice, the Helsinki Commit- nisms of inspection and monitoring of prisons tee, prison administration, ombudsmen, the with a view to implementing relevant recom- CPT, the judiciary and prison governors. The mendations of the CPT and take the measures aim was to present the guidelines on inspec- necessary to comply with ECtHR judgments. tions and monitoring of prisons, thereby con- The participants included MPs, the general di- tributing to the development and rectors of the respective prison authorities, rep- consolidation of governmental and independ- resentatives from the judiciary, representatives ent inspection mechanisms. from prison liaison offices in the ministries of

Training and awareness-raising activities 95 Human rights information bulletin, No. 73 Council of Europe justice, representatives of the prosecutor’s joint programme entitled “Development of a office, ombudsmen, government representa- reliable and functioning prison system respect- tives and representatives of local NGOs active ing fundamental rights and standards and en- in programmes with prisons. hancing of regional co-operation in the western Balkans”, in co-operation with the Pen- Training-of-trainers session on itentiary Administration of Montenegro. Rep- substantive European human rights resentatives of the penitentiary administration, standards and methodological aspects the ministry of justice, the courts and the om- for prison management staff budsman’s office attended the round table. Montenegro, February 2008 Pilot cascade training seminars with A training-of-trainers session was organised for prison staff future trainers among the management staff of the Penitentiary Administration of Montene- Vushtri, Kosovo-UNMIK, 4-5 February and gro. The session focused on Articles 2, 3, 5 and Tirana, Albania, 11-12 February 2008 8 of the ECHR. These training seminars for operational and Round table to present governmental managerial prison staff, in particular on Arti- guidelines and independent inspection cles 2, 3, 5 and 8 of the ECHR, aimed at dissem- mechanisms to the participants and inating the knowledge that the local trainers prepare for their implementation had acquired during the training-of-trainers sessions. The trainers were assisted by a Montenegro, February 2008 Council of Europe expert who took part in the A round table was organised on the guidelines seminars and gave them guidance on fulfilling prepared by the main expert in the EC/COE their role as trainers.

Programme “Fostering a Culture of Human Rights for Ukraine and South Caucasus”

Training-of-trainers seminar for domestic application in criminal and civil pro- national ECHR trainers of prosecutors ceedings as well as relevant ECtHR case-law and case-law in the Council of Europe member Yerevan, Armenia, 4-6 December 2007 states. The objective of this seminar was to develop a national pool of qualified ECHR experts. The Seminar on domestic application of the seminar focused on Articles 3, 5 and 6 of the ECHR ECHR but also provided an overall overview of the ECHR’s substantive provisions as well as Baku, Azerbaijan, 4-7 December 2007 relevant ECtHR case-law and case-law in the An in-depth seminar on the domestic applica- Council of Europe member states. Methodo- tion of the ECHR for judge candidates cur- logical aspects for making an effective presen- rently in the selection process. tation to fellow prosecutors were also highlighted. The national trainers for prosecu- Fourth series of four cascade seminars tors will proceed to train their peers in the on the ECHR regions of Armenia via cascade seminars in 2008. The seminar was organised in co- Ukraine, 5-14 December 2007 operation with the office of the prosecutor gen- The fourth series of four cascade seminars on eral. the ECHR for prosecutors from the regions of Seminars for judicial and prosecutorial Ukraine (Lugansk, Mykolayiv, Odessa, Lviv) staff were organised in co-operation with the office of the prosecutor general and the Association Tbilisi, Georgia, 26 November – 19 December of Prosecutors of Ukraine (http:// 2007 www.uap.org.ua) with the assistance of the na- A series of five seminars for judicial and prose- tional pool of qualified experts trained by the cutorial staff on the ECHR were organised in Council of Europe. The seminars highlighted co-operation with the Tinatin Tsereteli Insti- the ECHR’s substantive provisions and their tute of State and Law. The seminars highlighted domestic application in criminal proceedings, the ECHR’s substantive provisions and their as well as relevant ECtHR case-law.

96 Training and awareness-raising activities Council of Europe Human rights co-operation and awareness

Seminar for the staff of the government ity. The participants were representatives from agent’s office on the ECHR the office of the government agent, the supreme court, the court of appeal, the prose- Tbilisi, Georgia, 10-11 December 2007 cutor’s office and ministers.

This seminar was aimed at enhancing the ca- Training seminar for Georgian law pacity of the office to represent Georgia before enforcement officials the ECtHR, to contribute to the execution of the ECtHR judgments and to identify legisla- tion raising matters of ECHR compatibility. Tbilisi, Georgia, 22-24 January 2008

A training seminar for Georgian law enforce- Workshop on the establishment of the ment officials was organised in co-operation national prevention mechanism under with the Police Academy of Georgia. During the the Optional Protocol to the Convention against Torture train-the-trainers course participants were trained on theoretical issues of human rights and ethics in policing, on developing a tailor- Yerevan, Armenia, 11-12 December made strategy to ensure human rights protec- tion during interviews, and on principles of A workshop on the establishment of the na- tional prevention mechanism under the Op- adult learning. tional Protocol to the Convention against Torture (OPCAT) was organised with the co- Fifth series of four cascade seminars for operation of the Human Rights Defender’s prosecutors on the European Office in Armenia. The aim was to discuss draft Convention on Human Rights amendments to national laws in accordance with the OPCAT made by a group of national Ukraine, February 2008 experts. These seminars were organised in co-operation Study visit of lawyers from the offices of with the office of the prosecutor general and the ombudsman institutions of Georgia the Association of Prosecutors of Ukraine and Azerbaijan to the Council of Europe (http://www.uap.org.ua) with the assistance of a national pool of qualified experts trained by Strasbourg, 17-19 December 2007 the Council of Europe. The seminars high- lighted the ECHR’s substantive provisions and The aim of this visit was to allow participants to their domestic application in criminal proceed- familiarise themselves with the Council of Eu- ings as well as relevant ECtHR standard-setting rope’s main human rights treaties and mecha- case-law. nisms which are relevant to the work of non- judicial mechanisms for the protection of human rights ,such as ombudsman institu- Third series of two cascade seminars for tions. It included meetings with staff of the Di- judges on the European Convention on rectorate General of Human Rights and Legal Human Rights Affairs of the Council of Europe and the Regis- try of the ECtHR. Ukraine, February 2008

Training seminar for the staff of the The third series of two cascade seminars for Office of the Government Agent of judges on the ECHR were held in regions of Azerbaijan on the ECHR Ukraine. These seminars were organised in co- operation with the Academy of Judges of Ukraine with the assistance of a national pool Baku, Azerbaijan, 19 December 2007 of qualified experts trained by the Council of This training seminar was aimed at enhancing Europe. The seminars highlighted the ECHR’s the capacity of the office to represent Azerbai- substantive provisions and their domestic ap- jan before the ECtHR, to contribute to the exe- plication in criminal, civil and administrative cution of ECtHR judgments and to identify proceedings as well as relevant standard- legislation raising matters of ECHR compatibil- setting case-law of the ECtHR.

Training and awareness-raising activities 97 Human rights information bulletin, No. 73 Council of Europe

Programme entitled “Enhancing the capacity of legal professionals and law enforcement officials in Russia to apply the ECHR in domestic legal proceedings and practices”

Training of prosecutors’ trainers on the ganised crime) and the right to a fair hearing ECHR were among the topics discussed.

St Petersburg, Russian Federation, Awareness-raising seminar on Council of 21-23 November 2007 Europe human rights standards National prosecutors’ trainers, who will pass knowledge on to their colleagues at subsequent Rostov-on-Don, Russian Federation, cascade training seminars, were trained on the 16-17 November and 14-15 December ECHR. Prohibition of torture, inhuman and de- These two awareness-raising seminars on grading treatment or punishment; the prosecu- Council of Europe human rights standards for tor and the obligation to investigate; the Russian NGOs focused on the right to life, the prosecutor and gathering of evidence (includ- prohibition of torture and the right to liberty ing anonymous witnesses, terrorism and or- and security of person.

Training and awareness-raising activities for judges, prosecutors and lawyers

Cascade training seminars for judges and Training seminar for Chechen police prosecutors officers, judges, prosecutors and human rights NGOs on “Human Rights Ohrid, “the former Yugoslav Republic of protection in pre-trial detention” Macedonia”, 5-6 November and 12-13 November 2007 Golitsyno, Russian Federation, Two cascade training seminars for judges and 21-22 November 2007 prosecutors were organised with the co- This seminar aimed to familiarise participants operation of the Academy for Training of with existing European human rights stand- Judges and Prosecutors. National trainers ards regarding the right to liberty and personal trained their peers on Article 3 and 6 of the security, including the standards of the CPT, ECHR. the prohibition of ill-treatment and the proce- dural obligations in respect of ill-treatment and Training seminar for judges of the disappearances under the ECHR and the CPT. supreme court and the constitutional This activity was part of the 2007 Programme of court on the ECHR Co-operation Activities of the Council of Europe and the Russian Federation in respect Podgorica, Republic of Montenegro, of Chechnya. 8-9 November 2007 This activity, organised for judges of the In-depth seminar for judges and Supreme Court and the Constitutional Court of prosecutors on the ECHR the Republic of Montenegro, focused on the access of the individual to the European Court Chisinau, Moldova, 22-23 November 2007 of Human Rights (ECtHR) and the relationship An in-depth seminar on Article 6 of the ECHR between domestic legislation and the ECHR. for national judges and prosecutors organised in co-operation with the National Institute of Study visit for human rights prosecutors’ Justice. The seminar focused on non- trainers from Azerbaijan enforcement of judgments (Article 6 § 1 of the ECHR and Article 1 of Protocol No. 1) and the Strasbourg, 12-15 November 2007 ECtHR’s case-law on the principle of equality of This visit was organised for 13 prosecutors’ arms, the right to adversarial proceedings and trainers from Azerbaijan in order to familiarise the right to an independent and impartial tri- them with the main Council of Europe human bunal with lectures provided by a lawyer from rights treaties, and in particular the role and the Court’s Registry and a trainer from the In- contribution of prosecutors in ensuring effec- ternational Department of the National School tive protection of human rights. of Magistrates of France.

98 Training and awareness-raising activities for judges, prosecutors and lawyers Council of Europe Human rights co-operation and awareness

Training seminar for future lawyers’ of ECtHR judgments. During the training, pres- trainers on the ECHR entations were made and interactive work- shops organised to strengthen the lawyers’ Tirana, Albania, 26-27 November 2007 professional skills.

This training seminar was organised for a se- lected group of future lawyers’ trainers on Arti- Training seminar for future judges and cles 2, 3 and 5 of the ECHR. The admissibility prosecutors’ trainers on the ECHR criteria of the ECtHR were also presented. Tirana, Albania, 20–21 February 2008 Seminar for judges and prosecutors on Articles 5 and 6 of the ECHR The third training session for future judges and prosecutors’ trainers on the methodology of Strasbourg, 27-28 November 2007 Articles 9, 10 and 11 of the ECHR was organised in Tirana. The judges and prosecutors, selected Follow-up meeting on the situation of persons to be future trainers, had graduated from the in pre-trial detention, as well as of sentenced Albanian School of Magistrates and were in- women and life-prisoners in the Russian Feder- volved as lecturers in public and private law ation. This activity was part of a continued faculties in Albania and in previous training process of dialogue with the Russian authori- sessions with the Council of Europe. ties and was aimed at reviewing Russian legis- lation concerning pre-trial detention, as well as In-depth seminar on the ECHR the detention of prisoners and prisoners serving life sentences, in the light of relevant European standards. Montenegro, January 2008

Train-the-trainers course for Albanian A two-day in-depth seminar was organised for lawyers five judges’ trainers and five prosecutors’ train- ers in co-operation with the Judicial Training Tirana, Albania, 23-24 January 2008 Centre (JTC). The seminar focused on Articles 2, 3 and 6 of the ECHR. This course was This session was the second of a series of two part of a training scheme agreed with the JTC training sessions aimed at improving the to enable the judges’ trainers to pursue cas- knowledge of Albanian lawyers on specific ar- caded training and to assist with the creation of ticles of the ECHR and to teach them about the a pool of prosecutors’ trainers for the first time role and function of the Committee of Minis- since the JTC became responsible for the train- ters, in particular for supervising the execution ing of prosecutors.

Training and awareness-raising activities for police officers

Round table and seminar on police Training session for Albanian law ethics and human rights enforcement officials

Chisinau and Cumrat, Moldova, Tirana, Albania 13-15 November 2007 6-9 November A training session organised in co-operation A round table and seminar on ethics and with the Albanian Police Academy. Police offic- human rights as instruments of preventing ers from all over Albania were trained on torture and inhuman treatment by police offic- human rights with a special focus on domestic ers was organised following a request by the violence. The lecturers from Northern Ireland, ministry of the interior. The aim was to famil- Latvia, the Netherlands and Germany made iarise the authorities with the applicable inter- presentations on the issues and involved the national and national legal instruments and to participants through group work and case give the authorities an opportunity to react to studies. This session was the second in a series the comments of the CPT concerning police of two; the first was held in Durres in Septem- practice. ber 2007.

Training and awareness-raising activities for police officers 99 Human rights information bulletin, No. 73 Council of Europe

Training session for police officers with seminar was organised in co-operation with particular focus on human rights and the Albanian Centre on Human Rights (ACHR) investigative interviewing and the Police Academy of Albania.

Danilovgrad, Montenegro, 5-7 December 2007 Seminar on human rights protection in This third session aimed to raise awareness pre-trial detention among national law enforcement officials on the ECHR. The provisions of the ECHR which Moscow, Russian Federation, 20-21 November are relevant to police activities were examined, 2007 such as the presumption of innocence, the This seminar was organised for Chechen police principle of non-discrimination, and proce- officers and representatives of human rights dural rights during search, detention and inter- NGOs on human rights protection in pre-trial view. detention as part of the programme of co- Training session on human rights with operation activities of the Council of Europe focus on domestic violence and child and the Russian Federation in the Chechen Re- protection public in 2007. International experts made presentations on Article 3 and 5 of the ECtHR, Tirana, Albania, 12- 14 February 2008 procedural obligations for investigating allega- A training session for Albanian police officers tions of torture, disappearances, the work of on human rights with a focus on domestic vio- the CPT, safeguards against ill-treatment, and lence and child protection was organised for the CPT’s public statements about Russia/ police officers from all over Albania. The Chechnya.

Awareness-raising activities in the field of the media

Workshop for the members of the Seminar on media freedoms and self- National Commission on Radio and regulation Television on the monitoring of broadcasters during election campaigns Zlatibor, Serbia, 13-14 February 2008 Yerevan, Armenia, 29 January 2008 The objective of this seminar was to inform This workshop was part of the Council of journalists about European standards in the Europe Action Plan for assisting Armenia in field of self-regulation and media freedoms in the run-up to the February 2008 presidential general, to summarise the ECHR provisions elections. As part of this Action Plan the Council of Europe had already organised a con- and case-law on media freedoms and Serbian ference on “Media and elections: the demo- legislation and practices. The conclusion of the cratic responsibility of the media”, several seminar was that journalists should respect training seminars for journalists on the profes- privacy and integrity and apply professional sional coverage of election campaigns and the standards in their work. Participants agreed publication of a practical handbook on elec- that this kind of training would be useful for tions for journalists in November and Decem- journalists to better understand their rights ber 2007. For the workshop, international and and responsibilities and to improve the quality national experts on broadcasting regulation of their work. The seminar was the second and monitoring exchanged best practices with seminar on the same topics organised within representatives from the Armenian broadcast- the Joint Initiative between the European ing regulator, the National Commission on Agency for Reconstruction and the Council of Radio and Television (NCRT), to assist the Europe to promote freedom of expression and NCRT with improving their monitoring of the information and freedom of the media in Armenian broadcasters’ election coverage. Serbia.

100 Awareness-raising activities in the field of the media Council of Europe Human rights co-operation and awareness

Other activities

Human Rights Moot Court competition Study visit for a delegation from the for lawyers of the Ombudsperson Armenian Prison Administration of Institution in Kosovo (OIK) Justice and Prison Service

Pristina, Kosovo (OIK), 8-9 November 2007 Dresden, Germany, 3-7 December 2007

This competition was organised for the OIK A five-day study visit to examine remand in lawyers. Four participating teams argued a fic- custody and prison management was organised titious case relating to ECHR. All teams were in Dresden, Germany, for a six-member delega- required to argue both for the “applicant’s” and tion from the Ministry of Justice of Armenia “government’s” side. Their performances were and its prison service. The participants visited assessed by a panel of three “judges”. prisons and had meetings with the Central Prison Administration of Saxony and with Study visit to the Swedish ombudsmen prison governors and other staff in all the against discrimination prisons visited.

Stockholm, Sweden, 19-23 November 2007 Training seminar on the European Prison Rules and selection and training Three lawyers from the Ombudsperson Insti- of prison staff tution of Kosovo visited different offices of om- budsmen against discrimination in Sweden. Bila Tserkva, Ukraine, 13-14 December 2007 The lawyers studied the work of the Equal Op- portunities Ombudsman, the Ombudsman A two-day seminar organised in co-operation against Ethnic Discrimination, the Disability with the State Department for the Execution of Ombudsman and the Ombudsman against Sanctions of Ukraine and the Training Centre Discrimination on the Grounds of Sexual Ori- for Prison Staff in Bila Tserkva. The participants entation. familiarised themselves with the standards contained in the European Prison Rules regard- Training seminar on “Overview of ing selection and training of prisons staff and European and international human best practices of the countries represented by rights and democracy standards” the Council of Europe experts.

Vilnius, Lithuania, 24-25 November 2007 Two-day training on monitoring of places of deprivation of liberty for Training seminar for Belarus civil society repre- lawyers of the Human Rights Defender sentatives aimed at increasing participants’ Institution in Armenia and NGOs knowledge of human rights work and improv- ing their capacity to engage actively in human Yerevan, Armenia, 29-30 January 2008 rights standards in Belarus. The participants were provided with general information on A two-day training session was organised on basic principles of human rights, on the UN monitoring of places of deprivation of liberty and Council of Europe systems of human rights for lawyers of the Human Rights Defender In- protection, as well as on the role and function- stitution in Armenia and NGOs. This training ing of human rights NGOs. was part of the Council of Europe’s ongoing efforts to strengthen the capacity of the om- Anti-discrimination training budsman institution of Armenia to act as a na- tional mechanism under the Optional Protocol Pristina, Kosovo, 29-30 November 2007 to the United Nations Convention against Tor- ture. The lawyers of the Human Rights De- A two-day training session for the lawyers of fender Institution in Armenia and civil society the Ombudsperson Institution of Kosovo was representatives were trained on international prepared and provided by three experts from and European standards on prevention of ill- the Slovenian Ombudsman Office. Its aim was treatment, as well as on techniques of inspec- to raise participants’ awareness and sensitivity tion of places of deprivation of liberty. Interna- towards discrimination issues. tional and local experts took part in this event

Other activities 101 Human rights information bulletin, No. 73 Council of Europe

Training seminar for lawyers of the Foreign Affairs and implemented by the Office of Public Defender Council of Europe. Twenty-five lawyers partici- pated in the training, eight of them members of Tbilisi, Georgia, 20-21 February 2008 regional offices of the public defender institu- A training seminar on Articles 1,2,3 of the tion. ECHR training materials were made avail- ECHR was organised for lawyers of the Office able in English and Georgian. This training was of Public Defender as part of the project “En- the first of a series of intensive training ses- hancing the capacity of Public Defender of sions on the ECHR which are envisaged under Georgia”, funded by the Danish Ministry of the project.

Internet: http://www.coe.int/awareness/

102 Other activities HELP Programme

The European Programme for Human Rights Education for Legal Professionals (the HELP Programme) is an ex- citing project run by the Council of Europe which takes an interactive approach to professional human rights training. Here, Hermine Masmeyer, Programme Manager, explains more about how the programme works and what it offers.

What is the HELP Programme?

The HELP Programme provides materials and • Language. A large number of judges and pros- tools for training on the European Convention ecutors cannot read English or French well on Human Rights (ECHR). The materials have enough to understand the Court’s judgments. been developed to be used in the training of the Three working groups were set up to concentrate judiciary and may also be of interest to other on these practical issues for the programme. legal professionals working in the field of human • The first group created a standard curriculum rights. It is not intended that the HELP Pro- which gives an overview of all relevant fields gramme itself will organise training activities, of law and topics that should be included in but it should ensure that appropriate training the initial and/or permanent training of can be fully integrated into the curricula of the judges and prosecutors. training structures for judges and prosecutors. • The second group is developing training ma- terials on the contents of the ECHR and the The programme was created following discus- Court’s case-law. sions with member states about their needs for training of judges and prosecutors on the ECHR • The third group has produced a manual on and the case-law of the European Court of training of trainers, including materials on Human Rights. It emerged that the level of training techniques and learning methods. It human rights training was very different among provides theoretical information on the prin- the member states and that integration of the ciples of educating and training adults and ECHR in professional training was still in its early more practical information about how to stages in some of them. In addition, two main apply the theory and how to organise a train- practical issues were identified during these dis- ing event. Often, it is judges and other legal cussions: professionals who have to train their col- leagues, not professional trainers, and this is • The quantity of judgments produced by the why this manual has been developed. Court means that it is hard to keep up with The programme was launched in March 2006 the large amount of its case-law. and the website went online in October 2007.

Who is the programme for?

The HELP Programme is primarily aimed at evant for all legal professionals, and we encour- judges, prosecutors and trainers of judges and age them to use the various different tools now prosecutors. Practically, all the tools are truly rel- available free of charge on the website.

Can you tell us more about the website?

The materials developed by the working groups the system, as well as add material to what is are available on the website. The website has already available. made the programme much more interactive. Users can build a course, download texts, adapt, The website also has forums, a database of ex- change or translate them and upload them into perts, a calendar of events, and latest news.

103 Human rights information bulletin, No. 73 Council of Europe

The target groups – judges, prosecutors and trainers – have access to all parts of the site. However, all users can access and use the training materials and e-learning programmes.

What are the most recent developments? The first e-learning courses have recently been slightly altered, in order to discuss whether or added to the website. At present, four e-learning not the outcome of the case would change. This courses have been developed, based on Grand means the course is not merely about memoris- Chamber judgments of the European Court of ing and understanding the judgment but also Human Rights. The courses demonstrate about developing the skill of reasoning and being methods of analysing the relevant facts and legal able to apply the underlying principles to other issues in a judgment. The courses have been de- situations. veloped for human rights trainers but would also The courses are interactive and contain quizzes be of interest to legal professionals. They help the and assignments. A trainer can do the courses learner to acquire a deeper understanding of the online on an individual basis or download all el- reasoning of the Court and be aware of other ements of the courses and use them in a tradi- possible ways to reason (for example by analys- tional class room setting. ing concurring and dissenting opinions). Each The content and technology of the courses are cur- course ends with a section called “having fun rently being tested and we expect the results at the with argument”, in which the facts of the case are end of May 2008.

What has been the reaction to the HELP Programme so far? The reaction has been very positive so far and the on the website according to their own needs. For website has received lots of visits. The HELP example, Turkey has already made plans to trans- team has visited member states to present the late all of the materials into Turkish. programme and the website to the target groups, We are also pleased with the positive reaction and this always receives very positive feedback. from other users, such as universities. They are The vast majority of Council of Europe member already used to using online resources so they are states are using and developing the documents very interested in the website.

What languages are the materials available in? All documents are available in French, English, cessible to more people. The English used is German, Serbian and Russian. Users can also common parlance in order to make these docu- translate the materials and upload them back ments easier to read for people whose mother onto the system and in this way they will be ac- tongue is not English.

What are the plans for the future development of the site and the programme? The HELP team will be visiting more member experts will add themselves to the HELP data- states to present the programme and the materi- base so that it will become a truly interactive re- als and give workshops and seminars on how to source that meets the needs of judges, train in order to increase awareness of what the prosecutors and trainers across all the member HELP Programme offers. states. We hope that the users will translate and add new material to the website and that more

Internet: http://www.coe.int/help

104 Legal co-operation

European Committee on Crime Problems

Set up in 1958, the European Committee on Crime Problems (CDPC) is entrusted by the Committee of Ministers with the responsibility for overseeing and co-ordinating the Council of Europe’s activities in the field of crime prevention and crime control. It identifies priorities for intergovernmental legal co-operation, makes proposals to the Committee of Ministers on activities in the fields of criminal law and procedure, criminology and penol- ogy, and implements these activities.

Vienna, 19-21 November The 14th Conference of Directors of Prison Ad- as well as professionals and researchers. Dis- 2007 ministration (CDAP) took place in Vienna cussions covered issues related to: under the authority of the European Commit- • managing prisons in an increasingly tee on Crime Problems. It was organised jointly complex environment; with the Austrian Ministry of Justice. • management of vulnerable groups of pris- oners (women, juveniles, foreigners, the The Conference was attended by about 150 elderly and people suffering from mental ill- Directors General of Prison Administration, ness); representatives of the ministries of justice, in- • management of prisoners detained for of- ternational governmental and non- fences related to terrorism or organised governmental organisations active in the field, crime.

Internet: http://www.coe.int/cdpc/

European Committee on Crime Problems 105 Venice Commission

The European Commission for Democracy through Law, or Venice Commission, is the Council of Europe’s advi- sory body on constitutional matters. Its work aims to uphold the three underlying principles of Europe’s consti- tutional heritage: democracy, human rights and the rule of law – fundamental tenets of the Council of Europe.

National human rights institutions

Together with the North South Centre of the Rights”. In particular, the Venice Commission Lisbon, 16-17 November Council of Europe and the Commissioner for contributed to the debate on the relations 2007 Human Rights, the Venice Commission organ- between these institutions (ombudspersons ised the Lisbon Forum 2007 on “National and national human rights commissions) and Human Rights Institutions – the Cornerstone constitutional and ordinary courts. of the Protection and Promotion of Human

Internet: http://www.venice.coe.int/

106 National human rights institutions European human rights institutes

Through their research and teaching activities, European human rights institutes play an important part in the development of human rights awareness.

The January Human Rights Information Bulletin contains information on a selection of these human rights institutes, which is provided by the institutes themselves and is presented in the language in which it was drafted. The following information could not be included in January’s edition and is an addition to the list.

Serbia

The Belgrade Centre for Human Rights

Beogradska 54, 11000 Beograd, Serbia; Telephone/fax:+381 (0)11 2435 825

Email: [email protected]; Website: http://www.bgcentar.org.yu/

Overview The Belgrade Centre for Human Rights is a dents and entrepreneurs. They support the non-partisan, non-political and non-profit as- mission of the centre with their knowledge, ex- sociation for citizens who are concerned with perience and enthusiasm. the advancement of theory and practice of The Belgrade Centre was established in 1995 human rights. The experts who contribute to and has since then been recognised as one of the work of the centre come from various pro- the most important and most influential non- fessions and backgrounds – jurists, attorneys, governmental organisations in Serbia and sociologists, economists, writers, teachers, stu- Montenegro.

Library The centre offers a virtual library which has a decisions from international organisations number of reports and documents relating to such as the United Nations and the European international and national law and human Court of Human Rights and links to the rele- rights. The site also contains documents and vant treaty databases.

Education The Belgrade Centre’s main area of activity is seminars, lectures, round tables and scientific education for young experts in human rights gatherings. protection. Concerned that the subject of human rights is not adequately covered in the curriculum of the region’s university law school, the Belgrade Centre has established, along with its regional partners, several courses on human rights. The courses take place every year and aim to educate young experts and ex- perienced professionals in this field. The Bel- grade Centre also regularly holds short

Serbia 107 Directorate General of Human Rights and Legal Affairs Council of Europe F-67075 Strasbourg Cedex

http://www.coe.int/human_rights/

ISSN 1608-9618

9771608 961802