Trapped between the ECHR and the UN CRPD: how both the non-implementation and the implementation of ECtHR judgments concerning mental disability risk prolonging an invisible human rights crisis

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by Ioana Iliescu, EIN Law and Advocacy Officer

Introduction

Leading judgments of the European Court of Human Rights (“the Court”) concerning psychiatry and mental health have proven to be one of the most challenging systemic human rights issues to address. Their implementation requires political will, national capacity, a high amount of financial and human resources, as well as overcoming stigma and achieving a paradigm shift at societal level.

Romania has thirteen leading judgments pending implementation before the Committee of Ministers which concern psychiatry and mental health, by far the most of all Council of Europe states on this thematic. In June 2023, the Committee of Ministers will examine six of these cases, which concern issues ranging from, inter alia, the need for an independent and effective system of legal protection for vulnerable adults, overcrowding and poor material conditions in psychiatric hospitals and the lack of safeguards for involuntary placement in psychiatric hospitals. The fact that the Committee of Ministers is taking a strong interest in these cases is highly welcome, especially at a time when the Parliamentary Assembly of the Council of Europe and the Council of Europe Development Bank have also been active in addressing underlying causes of coercive practices in mental health settings.

This blog post mainly addresses the issues pertaining to the Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania, Parascineti v. Romania and Cristian Teodorescu v. Romania judgments, but the approach proposed herein is relevant for alleviating issues in the other disability judgments as well.

Photo by Andy Li on Unsplash

There is a serious humanitarian problem with regard to the respect and protection of the rights of persons with mental disabilities living in institutional settings in Romania. This blog argues that the only effective way to address the problems identified in these judgments is through a human rights-based approach to disability, which includes the creation of proper community-based care services available for persons with disabilities, and de-institutionalization. This is required by the UN Convention on the Rights of Persons with Disabilities (UN CRPD). However, in previous instances concerning similar issues, the Committee of Ministers has encouraged the creation of “medical residential centers” and the direction of a ‘deinstitutionalization’ strategy in Bulgaria which is faulty. The latter has been highly criticized for being contrary to the UN CRPD, as it moves people from large institutions to smaller buildings. This approach is both unnecessary and harmful. The Committee of Ministers should take into account the human-rights based approach prescribed by the UN CRPD in such cases, in order to ensure the development of effective long-term solutions to these systemic problems.

A serious, invisible humanitarian issue: persons with disabilities in mental health institutions

Persons with mental disabilities living in institutional settings in Romania do not have sufficient access to justice to lodge numerous (or even few) applications before the Court, although the human rights violations they face are systematic, wide-ranging, and affect approx. 30 000 people in Romania[i]. They are subjected to ill-treatment, medical neglect, and abuse; they live in overcrowded, poor material conditions of detention. They are placed in institutions by their legal guardians or the state, with whom they are often in a conflict of interest or have never met. When they are voluntarily committed, it is mainly due to a lack of alternative options in the community. Even if they want to leave mental health institutions, they are pressured and manipulated to remain. They are unable or afraid to complain, as they are fully dependent on the staff and management of the institutions where they are placed. Nils Muiznieks, former Council of Europe Commissioner for Human Rights, in his 2014 address to the PACE Committee on Equality and Non-Discrimination explained: „Many who could otherwise function in the community without a great deal of support have become unable or afraid to leave these institutions, because they have known nothing else” and this pattern “cultivates a feeling of helplessness; (…) erodes one’s confidence in one’s ability to make choices; (…) deprive(s) people of life experiences and skills needed to build up autonomy and identity”.

When supervising and implementing these judgments, consideration must be given to this vicious circle which defines life in mental health institutions[ii], and the web of underlying shortcomings which help cause it.

The need for a human-rights based approach to disability: community-based living and treatment alternatives as prerequisites to effective long-term solutions

A major underlying factor causing pressure on the psychiatric and social care system in Romania, leading to these violations, is the lack of alternative community-based mental health and social care services for persons with mental disabilities, including the lack of alternative living options. When such services and alternatives are unavailable, the only resort becomes placement in psychiatric hospitals and social care homes. However, according to the Court’s rulings, the deprivation of liberty of persons with mental disabilities is unlawful when compulsory confinement is not warranted (Stanev v. Bulgaria [GC], 2012, § 145). This is also problematic under other instruments of the Council of Europe and contrary to the standards of the UN Convention on the Rights of Persons with Disabilities. Compulsory psychiatric confinement (both de facto and de jure) cannot be warranted when it is caused by a lack of community services and alternatives. The overabundance of placement measures, due to lack of alternatives, leads to pressure on the mental health system, overloading it and giving way to violations.

Several practices, some of which have already been identified in previous CM-DH notes in the Cristian Teodorescu v. Romania case, contribute to the perpetuation of unlawful deprivation of liberty in psychiatric hospitals and the ‘system overload’: voluntary patients are de facto involuntarily detained, without the necessary legal safeguards; patients who do not require psychiatric treatment but do not have families or suitable accommodation in social care facilities remain under involuntary placements; persons with intellectual disabilities are subjected to involuntary placements in forensic psychiatric confinement (as a security measure), despite the fact there is no case for recovery from intellectual disabilities.  Such practices could be avoided if effective community-based alternatives existed.

Furthermore, the overcrowding caused by excessive unnecessary placements, and insufficient staffing, taken together, diminish the capacity of psychiatric hospitals to abide by the legal provisions and respect legal safeguards concerning placements and periodic, timely reviews.

With regard to the new legal framework suited to the specific needs of people with mental disabilities[iii], which pertains to the implementation of the Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania judgment, alternative, community-based mental health and social care services are essential to ensure the effectiveness of this reform. The Romanian government, in their latest communication, discussed the new legislation on supporting the de-institutionalization process for adults with disabilities; the implementation of this law is key in ensuring the efficiency of the legal framework which is meant to provide a tailor-made responses for the independent representation of persons with disabilities. In addition, the judiciary gives weight to the living situation and independent life skills of persons with mental disabilities when assessing requests to vacate guardianship and determine protection measures.

Addressing the overcrowding and living conditions of detention in psychiatric hospitals, overcoming the deficiencies in the care of persons with mental disabilities in institutions, ensuring the efficiency of the reform on representation for persons with mental disabilities and putting an end to the practice of unlawful involuntary placements: these are all directly dependent on the creation of effective alternative community-based mental health and social care services, including living alternatives. Without these, the same paternalistic approach, the same prejudices, stigma and mentality, and the same human rights violations will continue to occur.

Concerns about the Committee of Ministers’ previous approach in disability cases validating trans-institutionalization

The Committee of Ministers is not legally bound to apply other human rights instruments which grant higher protection than the European Convention of Human Rights. This had led to a discrepancy between the standards of the UN CRPD and the jurisprudence of the Committee of Ministers in two Bulgarian judgments concerning psychiatry and mental health, which are pending implementation. For example, in Nencheva and others v. Bulgaria, the Committee “invited the authorities to finalise without delay the creation of 20 new medical residential centres”, while in Stanev v. Bulgaria, the Committee referred to measures adopted by the authorities, which “go in the right direction”.

This type of approach on the part of the Committee of Ministers may be seen as encouraging measures which help perpetuate institutionalization. The building of 20 new residential centers means that these institutions will be occupied for years by generations of children with mental disabilities, who will remain at-risk in institutional settings, rather than living in family-type settings as is their right.

As regards Bulgaria’s deinstitutionalization strategy, civil society, the UN and the Council of Europe itself have raised continuous concerns about the way Bulgaria is carrying out its’ deinstitutionalization strategy, by investing in the building of small institutions, and essentially moving residents from large buildings to smaller buildings. This tokenistic approach keeps people in institutions, unseen in society, and ensures that the same patterns continue, as the new institutions are built. Despite these concerns, the Committee of Ministers has stated the measures taken by Bulgaria “go in the right direction”, which, in the light of these criticisms, may raise objections from other human rights actors.

Positive developments in the Committee of Ministers’ jurisprudence in disability cases

On the positive side, in the Stanev v. Bulgaria case, in March 2023, the Committee did question the effectiveness of building new family type-homes in remote locations, where qualified staff and services are hard to come by. However, while the importance of location and qualified staff is undeniable, the creation of small new institutions remains a measure that violates the UN CRPD because it perpetuates institutionalization, even when these two key factors are addressed.

Another important positive development in the Stanev case, was that, in March 2023, the Committee also noted the importance of availability of social services when establishing new facilities in communities.

The scope of implementation of the key Romanian leading cases on psychiatry and mental health is not identical with the Bulgarian ones[iv]. This means that it is unlikely that the Committee of Ministers would comment on how Romania is conducting its’ deinstitutionalization strategy, but it should still address the importance of proper deinstitutionalization and alternative community-based treatment and social services. In any case, the lessons learned above remain relevant in both national contexts.

Conclusion

There is a gap between the standards of the UN CRPD and the standards of the European Court of Human Rights, the latter being more lax when it comes to using coercive measures against people with mental disabilities[v]. Neither the right to liberty and security, nor the right to live independently and be included in the community (while not protected by the European Convention of Human Rights and thus not directly relevant for the supervision mandate of the Committee of Ministers), can be respected if persons with mental disabilities are subjected to institutionalization and deprivation of liberty based on their disability.

Clearly, implementation measures concerning psychiatry and mental health must remain within the scope of the judgement. Even when the scope of the case is narrow, these measures should not contravene other relevant international human rights instruments, such as the UN CRPD. At the same time, the scope must be seen and interpreted both in the letter and in the spirit of the law: the validation of formalistic measures which slow down the process of fulfilling other social rights, guaranteed by other human rights instruments, should be avoided.

Furthermore, while the wording of the judgments pending implementation against Romania does not explicitly dictate the need for alternative community-based mental health and social care services in order to address the issues in these judgments, their upcoming examination presents an opportunity for the Committee to develop its’ jurisprudence with a well-rounded approach and understanding of the circularity of human rights violations which defines the lives of many persons with mental disabilities living in psychiatric hospitals and social care homes, who need independent and effective representation, and the real causes behind these systemic issues. In order to ensure the development of effective long-term solutions to these systemic problems, the Committee should align its’ approach with the UN CRPD, rather than take a strictly formalistic approach based only on the wording of the ECtHR judgment. 

Without alternative, community-based mental health and social care services, people with mental disabilities will remain trapped in unescapable patterns of human rights violations.

Footnotes

[i] According to statistics by the National Authorities for the Rights of Persons with Disabilities, on 31.12.2022, 16 418 persons with disabilities were institutionalized. According to the data from the Romanian Ministry of Health there are 16,073 psychiatric beds nationwide, out of which 8841 are in chronic wards.

[ii] This vicious circle is portrayed by the Gorbatyuk v. Ukraine case, which concerned the applicant’s impossibility to secure a review of her legal capacity. Before applying to the Court, she was living independently and working. Following the delivery of the ECtHR judgment, she was institutionalized by her guardian (the same one she had tried to have removed), and her state of health has severely deteriorated. The authorities have not paid just satisfaction to her, and her right to claim compensation has expired. She now remains under a conflict-of-interest legal guardianship, unable to claim compensation, unable to challenge the guardianship, deprived of liberty, living in an institution.

[iii] Relevant in the implementation of the Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania judgment; see the Romanian government’s updated communication on general measures, provided on 22 March 2023 (DH-DD(2023)354-rev).

[iv] For example, the Stanev v. Bulgaria cases concerns (inter alia) the unlawful placement in social care homes and the lack of judicial review, while the Romanian cases concern: the unlawful placement in psychiatric hospitals (Cristian Teodorescu v. Romania), the deficiencies in the legal protection and medical and social care afforded to vulnerable persons and the lack of safeguards and remedies regarding placement in both residential social care facilities and psychiatric hospitals (Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania).

[v] The Council of Europe itself has been criticized for promoting legislation on coercive mental health measures in Europe (through the draft Additional Protocol to the Oviedo Convention) by the Working Group on Arbitrary Detention; the Special Rapporteur on the rights of persons with disabilities; the Chair of the Committee on the Rights of Person with Disabilities and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, UN experts and international civil society: https://rm.coe.int/letter-un-bodies-to-sg/16808e5e28; https://www.hrw.org/news/2020/11/04/what-does-council-europe-have-against-people-disabilities ; https://news.un.org/en/story/2021/05/1092982

EIN saddened by the loss of Jean-Paul Costa

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In the course of a distinguished legal career, Jean-Paul Costa was appointed as a judge at the European Court of Human Rights in 1998. He served as the Court’s President between 2007 and his retirement from the Court in 2011.

After stepping down from his role at the Court, Mr Costa remained active in the human rights field. In particular, he became President of the René-Cassin Foundation, a human rights organisation based next to the European Court of Human Rights in Strasbourg. It was in this capacity that his work crossed paths with EIN. In 2017 Mr Costa was instrumental in arranging for EIN to occupy an office space in the building of the René-Cassin Foundation. EIN had just been created: it was short of funding and had no base. The establishment of the EIN office in a key location, for an affordable rent, was therefore hugely beneficial for us a young network. EIN was extremely grateful to Mr Costa for this gesture, as well as his warm support over the following years.

Jean-Paul Costa died on Thursday 27 April, aged 81. EIN is saddened by the loss of a tireless defender of human rights.

You can read more about the life of Jean-Paul Costa and his contribution to the protection of human rights across Europe here.

EIN Workshop: Implementation of ECtHR Judgments concerning Psychiatry, Mental Health and Disability Rights in Romania

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Last week, EIN held a workshop on the implementation of European Court of Human Rights judgments concerning psychiatry, mental health and disability rights in Romania, which took place on Monday, 27th March 2023.

This workshop focused on the implementation of ECtHR judgments concerning disability and mental health in Romania, specifically for Romanian civil society representatives. Civil society activists, lawyers, self-representatives, psychologists, and parents of children and adults with disabilities joined us for this workshop. 

We provided participants with an overview of the ECtHR implementation process focusing on the scope of implementation of key judgments and on evidencing issues. We discussed the following cases, which are all on the Committee of Minister’s Human Rights Meeting June 2023 agenda:

  • Centre for Legal Resources on behalf of Valentin Campeanu v. România, concerning the authorities’ failure to protect the right to life of Mr Câmpeanu, a young man with a severe intellectual disability.

  • N v. Romania (no. 2), concerning deficiencies in the current system of legal protection for vulnerable adults

  • Parascineti v. Romania, concerning the ill-treatment during involuntary placement in the psychiatric unit of a psychiatric Hospital, due to overcrowding, poor sanitary and hygiene conditions, including the absence of an individual bed, and the impossibility to spend time outdoors due to staff shortages.

  • Cristian Teodorescu v. Romania, concerning unlawful placements in psychiatric hospitals without compliance with the procedure prescribed by the Mental Health Act and without any justification relating to the applicant’s mental health condition.

  • N. v Romania, concerning the unlawful psychiatric confinement as a security measure and deficiencies in the judicial review proceedings regarding the applicant’s continued confinement.

  • R.D. and I.M.D. v. Romania, concerning the non-voluntary confinement of the applicants in a psychiatric hospital, for the purpose of compelling them to undergo medical treatment and about the obligation to undergo that medical treatment.

The workshop concluded with an open discussion with participants about developments at the national level and implementation challenges in these cases.

We thank everyone who joined the workshop, and we hope to see your submissions and engagement with the implementation of ECtHR judgments in the future.

Training Seminar - Strengthening the implementation of Strasbourg court judgments through Rule 9 submissions: What role for NGOs?

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This week we hosted a training seminar titled Strengthening the implementation of Strasbourg court judgments through rule 9 submissions: What role for NGOs? This online training took place with the University of Padova in Italy on the 22nd of March 2023.

In the first session, Agnès Ciccarone, EIN Programme Manager, provided welcoming remarks, introduced the session and invited participants to introduce themselves. Following the introduction, George Stafford, EIN Director discussed why NGOs and civil society should advocate for the implementation of judgments.

Next, Ioana Iliescu, EIN Law and Advocacy Officer, held a presentation regarding the key elements of the implementation process of judgments of the European Court of Human Rights, and the Committee of Ministers’ execution process. Each session was followed by a Q&A session.

The second session focused on drafting Rule 9 Submissions. Agnès Ciccarone, EIN Programme Manager, provided participants with advice for making Rule 9 submissions.

The final training session of the day concluded with an exercise giving participants the opportunity to discuss how they would engage with the implementation of the ECtHR judgments focusing on the following cases:

  • Nedim Şener Group of Cases v. Turkey, which concerns pre-trial detention of individuals, mainly journalists, on serious charges, such as aiding and abetting a criminal organisation or attempting to overthrow the constitutional order;

  • G.L. v Italy, which concerns the inability for an autistic child to receive specialised learning support to which she was entitled by law, in first two years of primary school.

We thank everyone who joined the event, and we hope to see your submissions and engagement with the implementation of ECtHR judgments in the future.

Job Vacancy: Director of EIN

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Since it was established in December 2016, EIN has been at the cutting edge of addressing one of the key challenges to human rights in Europe: the non-implementation of judgments of the European Court of Human Rights (ECtHR).

EIN is a non-governmental, member-based network. Our mission is to build and strengthen the ability of civil society to advocate for better implementation of ECtHR judgments; to act as a platform for civil society advocacy to promote ECtHR implementation; and to support more robust structures that facilitate implementation both nationally and at the Council of Europe (CoE). EIN carries out a range of activities to fulfil this mission, including providing legal guidance to civil society from across Europe, organising capacity-building events, publishing reports, convening advocacy events, and carrying out communications.

EIN has already made a significant impact on the ECtHR implementation issue. Its work with civil society has led to a tripling of the annual level of NGO engagement in the ECtHR implementation monitoring process. Advocacy at the Council of Europe has been followed by significant reforms to the institution’s work on judgment execution; whilst advocacy with the European Union has led the Commission to take into account the non-implementation of ECtHR judgments in its annual rule of law reviews. EIN works on the most important ECtHR cases is Europe, including the cases of Osman Kavala, Selahattin Demirtaş, and rule of law cases concerning Hungary and Poland. It works on cases covering the full range of ECHR rights, from torture, to gender-based violence, and the right to free speech. The network has 39 members across 25 states, as well as a three-person secretariat based in Strasbourg. It is governed by a board which is elected by its members.

The job

  • Contract Period: Indefinite.

  • Location: Strasbourg, France.

  • Salary: Between €4,167 per month gross (€50,000 per annum) and €4,583 per month gross (€55,000 per annum), depending on qualifications and experience.

  • Other Benefits: 25 days of annual leave per year, in addition to annual holiday between 24 December and 1 January, inclusive. Comprehensive health insurance package.

  • Remote working: EIN has a remote working policy of two days per week on an ongoing basis, as well as an allowance of one month per year to work remotely outside of Strasbourg (in periods when this does not affect our ongoing work).

  • Starting date: as soon as possible.

 The Director is responsible for ensuring that EIN is effective in pursuing its mission. In particular, it involves the following:

  • Devising and implementing the strategic direction of the organisation and its workplan.

  • Managing EIN staff.

  • Ensuring the effective financial management of the organisation, including overseeing the drafting of the annual budget.

  • Co-ordinating the organisation’s fundraising, including drafting fundraising applications and reports, and liaising with donors.

  • Representing EIN in public fora, including conferences and chairing quarterly briefings to the Committee of Ministers.Developing collaborative relationships with key stakeholders, including leaders of national civil society organisations from across Europe, permanent representations to the CoE, senior CoE staff, government agents, donors, and EU officials.

  • Monitoring and evaluating the implementation of ECtHR judgments on a national and thematic basis; coordinating the drafting of reports.

  • Coordinating the provision of advice to NGOs and lawyers working to promote the implementation of ECtHR judgments, including written submissions to the CoE monitoring process.

  • Devising and co-ordinating the drafting of resources to be used by lawyers, NGOs and NHRIs.

  • Devising and overseeing the implementation of training events for members of civil society.

  • Overseeing the organisation and preparation of Board meetings and general assemblies.

  • Conducting organisational visits to countries, including public roundtables, meetings with government officials, and capacity-building events.

The position will require modest amounts of international travel.

A transitional period of remote working is possible at the start of the new appointment before relocation to Strasbourg, lasting a maximum of two months.   

Essential Experience

At a minimum, the successful candidate must:

1.      Have a higher education degree or other qualification equivalent to a master’s degree in law.

2.      Have six years of relevant work experience, including four years on litigation at the ECtHR or the implementation of ECtHR judgments as an independent lawyer, in an NGO or National Human Rights Institution, at the Council of Europe or in a national government.

3.      Have experience of working for an NGO or a National Human Rights Institution.

4.      Have experience of carrying out advocacy in public events.

5.      Have a very strong knowledge of written and spoken English, including the ability to draft legal submissions and carry out high-level advocacy.

6.      Have a strong commitment to securing full implementation of ECtHR judgments, an understanding of the essential role that NGOs should play in the implementation process, and the drive to greatly increase the scale and effectiveness of their contribution.

Candidates must also have the right to live and work in France.

Desirable Experience

The following is not essential to the job, but it is desirable:

1.      Experience of project management.

2.      Experience of fundraising, particularly in the NGO sector.

 

Competencies

The competencies for the Director position reflect the full range of functions in the job description. For this recruitment we will work just with those which are most important at this stage of the organisation’s development. We will use these in deciding who to appoint to the post. However, we do not expect applicants to be strong in all of them. We are committed to developing our staff so that they can improve their performance and personal effectiveness.

The competencies for the position are as follows:

1.      Leadership: Demonstrates clear commitment and enthusiasm for organisational values, goals and policies. Motivates others to act in particular ways to achieve specific goals. Provides direction and has the authority or influence to persuade others to follow.

2.      Developing and Implementing Strategy. Translates and develops the vision, mission and values created by the board and membership into effective strategies. Translates strategic aims into practical and achievable plans. Understands the climate and culture in the wider political and social environment in which EIN operates. Understands political processes and how to operate within them.

3.      General Management: Manages operational processes to ensure the organization delivers outputs that meet stakeholder, organisational and legal requirements. Demonstrates good presentational and media skills. Is concise and persuasive orally and in writing. Delivers results on time, to budget and to a high quality.

4.      Project Management: Plans projects effectively. Co-ordinates activities, resources, and plans in order to complete projects to agreed timescale. Keeps key stakeholders informed and effectively communicates project outcomes. Contributes to the evaluation of project planning and implementation.

5.      Financial Management. Ensures: systems and procedures are in place for managing money efficiently; expenditure is continually monitored to ensure best value for money and prompt corrective action is taken where needed; reports of performance against budget are accurate, timely and presented to the Board and other relevant parties as required.

6.      Management of People and Relationships: Communicates effectively with the board and officers. Develops productive relationships with stakeholders. Identifies key partners and strategic partnership opportunities locally, nationally, and internationally; sets up partnerships to maximise mutual benefit. Develops productive relationships with colleagues; incorporates results of assessments into personal development plans. Promotes equality and diversity.

7.      Personal organisation: Manages own resources – own time, energy, knowledge and understanding and physical and mental skills – effectively in order to meet the requirements of the job. Agrees achievable objectives for self and gives a consistent and stable performance. Prioritises objectives and schedules work to make best use of time and resources. Develops self to improve own performance. Insists on openness and communication, motivated by values of inclusiveness and getting on with the job. Demonstrates high standards of honesty, integrity and fairness. Offers objective advice to board and officers without fear or favour. Shows respect for the views and actions of others.

How to Apply

Please complete the application form which can be downloaded below.

The closing date for applications is 5th April at 8 pm CET. Shortlisted candidates will be asked to complete a short written task. Interviews of shortlisted candidates will take place between 3rd and 5th May in Strasbourg.

If you have any questions concerning this application, please contact aciccarone@einnetwork.org.

 

George Stafford to leave EIN

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The following is a message from EIN’s Chair Professor Başak Çalı and EIN’s Vice Chair Professor Philip Leach:

EIN’s Director George Stafford will be leaving the organisation in May 2023.

George has been an important part of EIN’s growth from a small network when he started in October 2018, to a group of 39 members across 25 different European countries today.

During his time at EIN, the issue of the implementation of ECtHR judgments has risen quickly up the agenda for civil society and institutions. The level of NGO engagement in the implementation monitoring process has tripled, following an information-spreading programme which he started in January 2019. Civil society participation has also been strengthened by the EIN capacity building events that he has overseen, which have involved the training of over 450 people from across Europe.

Following EIN’s sustained advocacy highlighting the size of the ECtHR implementation challenge, in May 2021 the Council of Europe identified its top strategic priority as the implementation of the ECHR and ECtHR judgments at the national level. The EU is also now holding states to account for their ECtHR implementation record, following a successful advocacy project George launched to include the levels of Strasbourg Court judgment execution in the EU Commission’s annual rule of law reports.

Turning to work at the national level, George has championed the reform of government implementation mechanisms as fundamental to improving overall levels of ECtHR implementation. This was a central issue of discussion in EIN largest ever conference, held in Strasbourg in June 2023, and has influenced subsequent Council of Europe projects on this issue.

Advocacy for the implementation of particular cases together with NGOs and lawyers is a central part of EIN’s work. During George’s tenure, the organisation was closely involved in the acquittal of Ilgar Mammadov and six other Azerbaijani opposition figures; achieving protections for a victim of domestic violence in Ukraine; and wider reforms on the full range of ECHR rights, including measures to combat hate crimes and protect free speech.

In a message to EIN members, George wrote:

“Over the last four and a half years, I have tried my hardest to promote the implementation of judgments of the European Court of Human Rights. I have been extremely fortunate to work on an issue that I care deeply about, with a large community that cares deeply about it too. My motivation has always been sustained simply by spending time with all of you. There is nothing more inspiring than working with hardworking, passionate human rights defenders from across Europe, who are dedicating their energy to protecting the values that matter most.”

We wish George the very best of luck in his future endeavours.

EIN will seek to appoint a new Director as soon as possible. For information on the recruitment process and how to apply, click here.

Overview of Rule 9 Submissions in view of the Committee of Ministers' Deputies Human Rights Meeting in March 2023

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From 7-9 March 2023, the Committee of Ministers will meet for their quarterly Human Rights Meeting. During this meeting, the Committee of Ministers will examine 35 judgments of the European Court of Human Rights that are pending implementation.

EIN members and partners, other civil society actors, lawyers and applicants have made the 31 Rule 9 submissions for 19 cases under consideration. The list below sets out an overview of these submissions related to cases on the current agenda.

Overview of Submissions

Stanev v. Bulgaria

Violation: Unlawfulness of the placement in social care homes of persons with mental disabilities; lack of judicial review and poor living conditions; impossibility for the applicant, partially incapacitated, to request the restoration of his legal capacity.

 Last Decision: CM/Del/Dec(2022)1436/H46-7 - June 2022

 Latest Submission:

1459th meeting (March 2023) (DH) - Rules 9.2 and 9.6 - Communication from 8 NGOs (23/01/2023) in the case of STANEV v. Bulgaria (Application No. 36760/06) and reply from the authorities (03/02/2023)

X v. Finland 

Violation: Extensions of the applicant’s involuntary confinement in a psychiatric hospital and forcible administration of medication without adequate legal safeguards.

 Last Decision: CM/Del/Dec(2021)1419/H46-12 - December 2021

 Latest Submission:

 1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from an NHRI (Human Rights Centre) (27/01/2023) in the case of X v. Finland (Application No. 34806/04)

 M.A. group v. France

 Violation: Expulsion to Algeria in presence of a real and serious risk of ill-treatment (M.A.) and failure to comply with the Court’s interim measure (M.A. and A.S. cases).

 Last Decision: CM/Del/Dec(2022)1428/H46-9 - March 2022

 Latest Submission:

 1459e réunion (mars 2023) (DH) - Règle 9.2 - Communication d'une ONG (La Cimade) (25/01/2023) dans l’affaire M.A. c. France (requête n° 9373/15)

Baka v. Hungary 

Violation: Lack of access to a court as regards the premature termination of the applicant’s mandate as President of the Supreme Court which also led to a violation of his right to freedom of expression.

 Last Decision: CM/Del/Dec(2022)1428/H46-14 - March 2022

 Latest Submissions:  

1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from NGOs (Amnesty International and Hungarian Helsinki Committee) (26/01/2023) in the case of BAKA v. Hungary (Application No. 20261/12)

1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from an NGO (Association of Hungarian Judges (MABIE)) (27/01/2023) in the case of BAKA v. Hungary (Application No. 20261/12)

1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from an NGO (Res Iudicata - Association of Judges for Social Awareness) (24/01/2023) in the case of BAKA v. Hungary (Application No. 20261/12)

1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from an NGO (European Association of Judges (EAJ)) (18/01/2023) in the case of BAKA v. Hungary (Application No. 20261/12)

 Marcello Viola v. Italy (No. 2)

 Violation: Impossibility under Article 4bis of the Prison Administration Act for whole life prisoners to be eligible for release on parole in the absence of cooperation with the judicial authorities.

 Last Decision: CM/Del/Dec(2021)1406/H46-16 - June 2021

 Latest Submissions:

1459th meeting (March 2023) (DH) - Rule 9.1 - Communication from the applicant (19/01/2023) in the case of Marcello Viola v. Italy (no. 2) (Application No. 77633/16)

 1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from an NGO (Hands Off Cain) (17/01/2023) in the case of Marcello Viola v. Italy (no. 2) (Application No. 77633/16)

 M.K. and Others v. Poland

Violations: Refusal of border guards to receive asylum application and summary removal to a third country with a risk of refoulement to and ill-treatment in the country of origin. Collective expulsion of aliens in a wider state policy of refusing entry to foreigners coming from Belarus. Lack of effective remedy with a suspensive effect. Non-compliance with interim measures under Rule 39 of the Rules of the Court.

 Last Decision: CM/Del/Dec(2022)1436/H46-17 - June 2022

 Latest Submissions:

 1459th meeting (March 2023) (DH) - Rule 9.6 - Reply from the authorities (15/02/2023) following a communication from NGOs (Centre for Fundamental Rights at the Hertie School Berlin and Human Rights Centre of the University of Ghent) (27/01/2023) in the case of M.K. and Others v. Poland (Application No. 40503/17)

1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from NGOs (Centre for Fundamental Rights at the Hertie School Berlin and Human Rights Centre of the University of Ghent) (27/01/2023) in the case of M.K. and Others v. Poland (Application No. 40503/17)

 Săcăleanu group v. Romania 

 Violation: Failure or substantial delay in the enforcement of final domestic judicial decisions against the State and State-owned enterprises.

 Last Decision: CM/Del/Dec(2022)1428/H46-24 - March 2022

 Latest Submission:

 1459th meeting (March 2023) (DH) - Rule 9.1 - Communication from the applicant (15/02/2023) in the case of Omegatech Enterprises Ltd. v. Romania (Application No. 24612/07) (judgment S.C. Polyinvest S.R.L. and Others, No. 20752/07) (Sacaleanu group (73970/01))

Lashmankin and Others group v. Russian Federation

Violation: Different violations mainly related to the right to freedom of peaceful assembly (reactions to notifications of planned assemblies, reactions to peaceful assemblies, unlawful arrests).

 Last Decision: CM/Del/Dec(2022)1428/H46-27 - March 2022

 Latest Submissions:  

1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from an NGO (Crew Against Torture) (06/02/2023) in the case of Lashmankin and Others v. Russia (Application No. 57818/09)

1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from an NGO (Human Rights Watch) (24/01/2023) in the case of Lashmankin and Others v. Russia (Application No. 57818/09)

1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from NGOs (OVD-Info and Memorial Human Rights Defence Centre) (17/01/2023) in the case of Lashmankin and Others v. Russia (Application No. 57818/09)

 Navalnyy and Ofitserov group v. Russian Federation 

 Violation: Criminal convictions based on an unfair trial and an arbitrary application of criminal law (violations of Articles 6 and 7).

 Last Decision: CM/Del/Dec(2022)1451/H46-35 - December 2022

 Latest Submission:

 1459th meeting (March 2023) (DH) - Rule 9.1 - Communication from the applicant (30/01/2023) in the case of NAVALNYY AND OFITSEROV v. Russia (Application No. 46632/13)

Vladimir Kharitonov Group v. Russian Federation

 Violation: Violation of the applicants’ right to freedom of expression on account of different types of blocking of their websites.

 First Examination

 Latest Submission:

 1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from an NGO (Agora International Human Rights Group (Net Freedoms Project)) (20/01/2023) in the case of Vladimir Kharitonov v. Russia (Application No. 10795/14)

R.R. and R.D. group v. Slovak Republic

Violation: Excessive use of force in a police operation carried out on a street that is home to a Roma community (R.R. and R.D.). Ineffective investigations.

Last Decision: CM/Del/Dec(2022)1436/H46-27 - June 2022

 Latest Submission:

 1459th meeting (March 2023) (DH) - Rules 9.2 and 9.6 - Communication from NGOs (European Roma Rights Centre (“the ERRC”), Poradňa pre občianske a ľudské práva (“Poradňa”), Fórum for Human Rights (“FORUM”)) (31/01/2023) in the case of R.R. and R.D. v. Slovakia (Application No. 20649/18) and reply from the authorities (06/02/2023)

Cyprus v. Turkey 

Violation: 14 violations in relation to the situation in the northern part of Cyprus (missing persons)

Last Decision: CM/Del/Dec(2022)1428/H46-34 - March 2022 

Latest Submission:  

1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from an NGO (06/02/2023) in the case of Cyprus v. Turkey (Application No. 25781/94)

Selahattin Demirtaş (No. 2) group v. Turkey

 Violation: Unjustified detention of the applicant (Selahattin Demirtaş (No. 2)) without reasonable suspicion that he had committed an offence, with the ulterior purpose of stifling pluralism and limiting freedom of political debate. Unforeseeable lifting of the parliamentary immunity and subsequent criminal proceedings to penalise the applicants for their political speeches.

 Last Decision: CM/Del/Dec(2022)1451/H46-39 - December 2022

 Latest Submission:

 1459th meeting (March 2023) (DH) - Rule 9.1 - Communication from the applicant (10/01/2023) in the case of Selahattin Demirtas v. Turkey (no. 2) (Application No. 14305/17)

Kavala v. Türkiye

Violation: Unjustified and extended detention of the applicant without reasonable suspicion and with the ulterior purpose of reducing him to silence.

 Last Decision: CM/Del/Dec(2022)1451/H46-40 - December 2022

 Latest Submission:

 1459th meeting (March 2023) (DH) - Rule 9.1 - Communication from the applicant (10/02/2023) in the case of Kavala v. Türkiye (Application No. 28749/18)

 Öner and Türk group, Nedim Şener group, Altuğ Taner Akçam group and Artun and Güvener group, Işıkırık group v. Turkey

Violation: Unjustified interferences with freedom of expression, in particular through criminal proceedings, including defamation, and the consequent chilling effect. Unforeseeable conviction of membership of an illegal organisation for the mere fact of attending a public meeting and expressing views there.

 Last Decision: CM/Del/Dec(2022)1428/H46-36 - March 2022

 Latest Submission:

1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from an NGO (Media and Law Studies Association (MLSA)) (19/01/2023) in the cases of Altug Taner Akcam, Nedim Sener, Isikirik, Oner and Turk & Artun and Guvener v. Turkey (Applications No. 27520/07, 38270/11, 41226/09, 51962/12, 75510/01)

Oya Ataman Group v. Türkiye

 Violation: Violation of the right to freedom of assembly, ill treatment of applicants as a result of excessive force used during demonstrations.

 Last Decision: CM/Del/Dec(2021)/1411/H46-38 - September 2021 

Latest Submissions:  

1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from NGOs (Joint submission by 33 NGOs and Bar associations) (23/01/2023) in the case of OYA ATAMAN v. Turkey (Application No. 74552/01)

1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from an NGO (Media and Law Studies Association) (20/01/2023) in the case of OYA ATAMAN v. Turkey (Application No. 74552/01) [anglais uniquement] [DH-DD(2023)133] 

1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from an NGO (Media and Law Studies Association (MLSA)) (05/01/2023) in the case of OYA ATAMAN v. Turkey (Application No. 74552/01) [anglais uniquement] [DH-DD(2023)73]

Varnava and Others v. Turkey

Violation: Lack of effective investigation into the fate of nine Greek Cypriots who disappeared during the military operations undertaken by Turkey in Cyprus in 1974.

 Last Decision: CM/Del/Dec(2022)1428/H46-38 - March 2022

 Latest Submission:

 1459th meeting (March 2023) (DH) - Rule 9.1 - Communication from the applicant (23/02/2023) in the case of VARNAVA AND OTHERS v. Turkey (Application No. 16064/90)

Petukov group v. Ukraine 

Violation: Irreducibility of life sentence and lack of appropriate medical care in prison, life prisoner ban on communication with other prisoners during out-of-cell activities.

Last Decision: CM/Del/Dec(2021)1411/H46-43 - September 2021 

Latest Submissions:  

1459th meeting (March 2023) (DH) - Rule 9.1 - Communication from the applicant (27/01/2023) in the case of Ivan Karpenko v. Ukraine (Application No. 45397/13) (Petukhov (no. 2) group, 41216/13)

 1459th meeting (March 2023) (DH) - Rules 9.2 and 9.6 - Communication from an NGO (Centre de la protection internationale) (02/02/2023) in the cases of Petukhov (no. 2) group, Borisenko and Others, Dembo and Others and Lopata and Others v. Ukraine (Applications No. 41216/13, 19102/20, 2778/18, 84210/17) and reply from the authorities (08/02/2023)

 1459th meeting (March 2023) (DH) - Rules 9.2 and 9.6 - Communication from NGOs (European Prison Litigation Network; Kharkiv Human Rights Protection Group; Ukrainian Helsinki Human Rights Union; NGO Protection for Prisoners of Ukraine) (02/02/2023) in the case of Petukhov v. Ukraine (no. 2) (Application No. 41216/13) and reply from the authorities (08/02/2023)

McKerr group v. the United Kingdom

Violation: Actions of security forces in Northern Ireland in the 1980s and 1990s; failure to conduct Article 2 - compliant investigations. 

Last Decision: CM/Del/Dec(2022)1451/H46-45 - December 2022

Latest Submissions:

1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from an NGO (Committee on the Administration of Justice) (20/01/2023) in the case of MCKERR v. the United Kingdom (Application No. 28883/95)

1459th meeting (March 2023) (DH) - Rule 9.2 - Communication from an NGO ((Committee on the Administration of Justice (CAJ)) (28/11/2022) in the case of MCKERR v. the United Kingdom (Application No. 28883/95)

Fourth CoE Summit: EIN calls for Reforms to Improve the Implementation of Judgments of the European Court of Human Rights

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The Fourth Summit of the Council of Europe is a crucial opportunity to renew an institution that is central to Europe’s future. 

EIN is deeply concerned about the current outlook for a fundamental aspect of the Council of Europe’s work: the implementation of judgments of the European Court of Human Rights (“the Court” or “ECtHR”). 

The Summit is a vital opportunity to honestly face the challenge of implementation - and to give the Council of Europe the support it needs to ensure that the European Convention of Human Rights system (“the ECHR system”) is both fully functional and protected for future generations.

In this context, last week EIN sent a Briefing Note to the members of the Committee of Ministers, setting out the need for reforms to improve the implementation of judgments of the European Court of Human Rights.

This note sets out the following points: 

  1. The implementation of judgments of the European Court of Human Rights has been invaluable for protecting human rights, democracy and the rule of law in Europe. 

  2. However, there is now a critical problem with the non-implementation of ECtHR judgments. 

  3. The current state of non-implementation has serious negative effects for the protection of fundamental values – threatening the existence of the ECHR system itself. 

  4. An outcome of the Fourth Council of Europe Summit must be well-funded reforms to improve the implementation of ECtHR judgments.

    This should include:

    • A special representative on the implementation of ECtHR judgments; 

    • A significant increase in technical co-operation projects focused on ECtHR implementation; 

    • Increased funding for the Department for the Execution of Judgments; 

    • Increased participation in CM/DH meetings by relevant government ministers; 

    • Increased frequency of CM/DH meetings; 

    • Ensuring that Infringement Proceedings are used more frequently, speedily, and resolutely; 

    • A new sanction by the Committee of Ministers for continued non-implementation; and 

    • Increased transparency of the implementation monitoring process and engagement with NHRIs/NGOs. 

We believe that the proposals set out above should form the core of an effective implementation strategy, following the Fourth Summit.

For more details on these proposals, you can access the full EIN Briefing Note below:

EIN Civil Society Briefing February 2023: Turkey, Hungary, and Bulgaria

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On the 27th February 2023, EIN held the latest civil society briefing for permanent Representations of the Council of Europe, ahead of the 1459th Committee of Ministers Human Rights Meeting on 7th – 9th March 2023. The event was held in person in Strasbourg.

The Briefing focused on the following cases:

  1. The Oya Ataman v Turkey case concerns the violation of the right to freedom of assembly, ill treatment of applicants as a result of excessive force used during demonstrations. This presentation was given by Mümtaz Murat Kök, Project Coordinator and Editor at Media and Law Studies Association and Beril Onder, Project Lawyer at the Turkey Human Rights Litigation Support Project.

  2. Baka v Hungary case concerns lack of access to a court as regards the premature termination of the applicant’s mandate as President of the Supreme Court which also led to a violation of his right to freedom of expression. This presentation was given by Erika Farkas, Legal Officer at the Hungarian Helsinki Committee.

  3. The Stanev v Bulgaria case concerns the applicant’s unlawful placement in a social care home for persons with mental disabilities; lack of judicial review and poor living conditions and the impossibility to request the restoration of his legal capacity. This presentation was given by Simona Florescu, Litigation Manager at Validity, and Aneta Mircheva, Lawyer at the Network of Independent Experts.

  4. The freedom of expression cases (Öner and Türk v Turkey/ Nedim Sener group/Altug Tanar Akcam group/Artun and Guvener group/ Isikirik Group) which specifically concerns the unjustified interferences with freedom of expression, in particular through criminal proceedings, including defamation, and the consequent chilling effect. Unforeseeable conviction of membership of an illegal organisation for the mere fact of attending a public meeting and expressing views there. This presentation was given by Mümtaz Murat Kök, Project Coordinator and Editor at the Media and Law Studies Association.

Oya Ataman v Turkey

The Oya Ataman v Turkey case concerns violations of the right to freedom of peaceful assembly, including the prosecution of participants and/or the use of excessive force to disperse peaceful demonstrations. Certain cases also concern unjustified detention orders against the participants, failure to carry out effective investigations into the applicants’ allegations of ill-treatment or lack of an effective remedy in this respect (violations of Articles 2, 3, 5, 10, 11 and 13 of the Convention).

Media and Law Studies Association and the Turkey Human Rights Litigation Support Project provided participants with an update on legislative developments that they included in their Rule 9 Submissions:

Law No.2911 on Demonstrations and Public Meetings

  • Law No. 2911 allows local authorities to: 

    • impose unwarranted restrictions on the right of peaceful assembly;

    • impose blanket bans on all demonstrations and events; 

    • enforce dispersal and impose criminal and administrative sanctions against those who attempt to exercise their right to peaceful assembly.

  • Lack of any comprehensive legislative measures in fully aligning Law 2911 with Convention standards.

  • The amendments made between 2014-2018 to Law No. 2911 have already been examined by the CM in its previous meetings: they are not Convention-compliant.

    Additional restrictions in the aftermath of state of emergency

  • After the attempted coup d’état of 15 July 2016, under the state of emergency, Article 11 of Law No. 2935 on the state of emergency granted broad powers to governors, restricting the freedom of assembly and movement along with other freedoms, which significantly affected civil society activities.

  • Severe restrictions such as blanket bans on peaceful assemblies were frequently imposed.

  • Although the State of emergency formally ended on 18 July 2018, serious restrictions placed under the emergency regime were incorporated into permanent legislation.

  • On 25 July 2018, Law No. 7145 (an ‘omnibus law’) introduced emergency-type restrictive measures into several ordinary laws.

    • Amendments to Articles 6 and 7 of Law no. 2911

    • An amendment to Article 11 (C) of Law No. 5442 on Provincial Administration allows (allowing provincial governors to ban the entry or exit of individuals to their provinces for fifteen days).

Media and Law Studies Association and the Turkey Human Rights Litigation Support Project gave participants an update on recent developments concerning the authorities application and interpretation of domestic law:

Blanket and specific bans on demonstrations and events

    • Under Law No. 2911 and Law No. 5442, provincial governors have regularly imposed bans on demonstrations and events in many provinces

    • Some governors automatically extended an existing ban by imposing another ban at the end of the previous one, creating an uninterrupted ban for a period much longer than 30 days.

    • In the Eastern city of Van, a general ban on all public gatherings and events was first imposed on November 21, 2016, and with the additional bans introduced by the authorities, all public gatherings and events were banned uninterruptedly until 27 June 2022.

Police interventions with excessive use of force

  • The examination of Turkish law enforcement officials’ practices during assemblies reveals, in particular, the following:

    • The police systematically enforce the dispersal of assemblies despite their peaceful nature.

    • While dispersing the crowd, the police persistently use excessive force on protestors, which could result in ill-treatment or torture, and mass arrest.

    • The authorities have failed to set up a functioning system for an ex post facto review to assess the reasonableness and proportionality of use of force on protestors.

Criminalisation of peaceful protestors

  • The widespread and systematic use of Law no. 2911 and 5442 against peaceful protestors

    • Criminal sanctions under Law no 2911

    • Misdemeanour fines under Law no. 5326.

    • Large number of criminal investigations and prosecutions under Law no. 2911

  • Peaceful protestors may also easily face other charges under criminal law

    • Article 265 § 1  of the Criminal Code for obstructing the security forces in the execution of their duties by way of resistance together with other persons

    • Article 299 of the Criminal Code for insulting the President of the Republic because of the slogans chanted during assemblies

    • Prevention of Terrorism Act (Law no. 3713

Media and Law Studies Association also provided trial monitoring data and information on criminal proceedings in the context of freedom of assembly. Between 1 September 2021 and 20 June 2022, at least 800 people stood trial for “defying the Law no. 2911 on Demonstrations and Assemblies” in 39 different trials, as recorded through trial monitoring by MLSA.

The majority of these people stood trial for “attending illegal demonstrations and marches and failing to disperse despite being warned and despite the use of force (Article 32/1 of the Law no. 2911).”

They set out examples of repressed assemblies in the Istanbul and Eskişehir Pride Marches, as well as the Saturday Mothers protests.

Media and Law Studies Association and the Turkey Human Rights Litigation Support Project provided their recommendations on general measures, asking the Committee of Ministers to:

  • Continue the supervision on the execution of the Oya Ataman group of cases under the enhanced procedure and at more frequent intervals;

  • Urge Türkiye to revise its Action Plan and address in full the structural problems arising from the domestic legislative framework identified by the ECtHR in the Oya Ataman group; 

  • Call on Türkiye to amend Law No. 2911 to ensure that its provisions are fully in line with the principles set  out in the case law of the ECtHR; 

  • Call on Türkiye to amend Law No. 5442 to ensure that its provisions are fully in line with the principles set  out in the case law of the ECtHR; in particular, amend Article 11(C) which grants broad  powers to governors to ban both peaceful public assemblies and indoor human rights  events;

  • Call on Türkiye to review the 2016 Directive on the use of tear gas and other crowd control weapons to  ensure that it complies in all respects with international standards in relation to the use  of crowd control weapons;

  • Call on Türkiye to put in place an effective ex post facto review mechanism to assess the reasonableness and proportionality of any use of excessive force by law enforcement  officials;

  • Call on Türkiye to stop the criminalization of the members of civil society who exercise their right to freedom of peaceful assembly.

Please see the slides for the full Briefing.

Relevant Documents:

The Baka v Hungary case concerns the premature termination of the applicant’s term of office as President of the Supreme Court, which was found to have violated his right of access to a court as guaranteed by Article 6 § 1 because of the absence of judicial review. The Court found that these measures had been prompted by the views and criticisms expressed by the applicant on issues of public interest (planned major reform of the judicial system) and had violated Article 10 as they had not pursued any legitimate aim linked to the judicial reform at issue, nor had the measures been necessary in a democratic society.

Hungarian Helsinki Committee reminded participants of the key violations found by the ECtHR:

  • Violation of Article 6 ~ undue and premature termination of Judge Baka’s mandate as President of the Supreme Court through ad hominem legislative acts of constitutional rank and therefore beyond judicial control.

  • Violation of Article 10 ~ prompted by views and criticisms he expressed on reforms affecting the judiciary.

  • Exerting a ’chilling effect’ on other judges discouraging them from participating in public debate on legislative reforms affecting the judiciary and on issues concerning the independence of the judiciary.

Hungarian Helsinki Committee provided participants with further developments of this pending case by highlighting it’s impacts on authorities’ systemic undermining and the chilling effect of silencing the judiciary. In 2022, two massive smear campaigns were targeted against individual judges as members of the National Judicial Council:

  • Against Judge Vasvári (spokesperson of the NJC), following a public statement in ‘The Guardian’ stating that „we have been witnessing external and internal influence attempts” and that „we just want a transparent and meritocratic system”. Following these statements, a defamatory campaign in the governmental propaganda media ran for one week describing him as „blood judge”; „judge of terror”, and depicting the NJC as „a putty club”.

  • Against Judge Vasvári (spokesperson of the NJC) & judge Matusik (international rep.)

  • massive smear campaign for over a month & more than 450 publications

  • consciously built up and boosted

    • launched in an anonymous blog of the right-wing media

    • joined by pro-government think tanks

    • discrediting members of the NJC as judges

    • questioning their independence 

Hungarian Helsinki Committee provided recommendations to the CM for Hungarian authorities, who should:

  • evaluate domestic legislation with respect to guarantees and safeguards protecting judges from undue interference

  • address the issue of judicial independence holistically and comprehensively

  • refrain from and condemn any public harassment, intimidation or retaliation against judges, and provide effective protection from personal attacks against judges

  • abstain from any public critique, recommendation, suggestion or solicitation regarding court decisions that may constitute direct or indirect influence on pending court proceedings or otherwise undermine the independence of individual judges in their decision-making

Please see the slides for the full Briefing.

Relevant Documents:

The Stanev v Bulgaria case concerns the unlawful placement of the applicant, suffering from a mental health disorder, in a social care home (violation of Article 5 § 1(e)). The Court found that the placement, considered a social assistance measure, did not comply with the requirements of the domestic legislation because the authorities had not requested the consent of the applicant. The placement also did not comply with the conditions set in the case law of the Court regarding the detention of persons suffering from mental health disorders.

Validity outlined the ECtHR judgment and the implementation process of the case to participants, in addition, they highlighted the need for alternatives to residential care.

The NGOs argued that small group homes and family-type homes perpetuate institutionalization, by ensuring the repetition of the same patterns of violence, neglect and deprivation of rights for persons with disabilities, and by maintaining the same features of institutions.

The NGOs provided an example of violence in a family-type home: https://novini.bg/bylgariya/obshtestvo/465247

They argue that the CM is empowered to monitor small group homes (relevant for both Article 3 and Article 5) and that, under the Stanev judgment, the state should provide for viable alternatives to residential care. This is the only path forward for implementing the Stanev judgment in a manner that is human rights compliant, and does not perpetuate institutionalization.

The current situation in Bulgaria

  • Around 9 000 people with disabilities still living in big institutions (159 big institutions still are operating).

  • 271 small group homes

  • Waiting list – 1 580 people with disabilities are in the waiting list for placement in the residential care, because of lack of another possibility to receive care in the community.

  • The group homes are small institutions. The regime there becomes more and more restrictive.

The NGOs argue that it is imperative that the Committee continues to monitor the implementation of the judgment. They set out recommendations to the Committee of Ministers to request the Bulgarian authorities to:

  1. Develop and implement strategies to ensure that persons with disabilities in family-type homes have a path to live in the community; they have access to a complaint procedure and review of their placement;

  2. Provide data on the number of persons with disabilities having left residential care to live in the community;

  3. Make procedural accommodations to ensure that persons with disabilities participate in court proceedings;

  4. Ensure that procedural accommodations and information are provided before and at signing the contracts for placement in family-type homes.

Please see the slides for the full Briefing.

Relevant Documents:

NGO Communications

1459th meeting (March 2023) (DH) - Rules 9.2 and 9.6 - Communication from 8 NGOs (23/01/2023) in the case of STANEV v. Bulgaria (Application No. 36760/06) and reply from the authorities (03/02/2023) [anglais uniquement] [DH-DD(2023)139-rev]

1436th meeting (June 2022) (DH) - Rule 9.2 - Communication from NGOs (Validity Foundation – Mental Disability Advocacy Centre, KERA Foundation, Network of Independent Experts, Bulgarian Helsinki Committee and Bulgarian Lawyers for Human Rights) (10/05/2022) in the case of STANEV v. Bulgaria (Application No. 36760/06) [anglais uniquement] [DH-DD(2022)547]

1436th meeting (June 2022) (DH) - Rules 9.2 and 9.6 - Communication from NGOs (Validity Foundation – Mental Disability Advocacy Centre, KERA Foundation, Network of Independent Experts, Bulgarian Helsinki Committee and Bulgarian Lawyers for Human Rights) (10/05/2022) in the case of STANEV v. Bulgaria (Application No. 36760/06) and reply from the authorities (25/05/2022) [anglais uniquement] [DH-DD(2022)547-rev]

1436th meeting (June 2022) (DH) - Rule 9.2 - Communication from NGOs (Validity Foundation - Mental Disability Advocacy Centre, KERA Foundation, Network of Independent Experts, Bulgarian Helsinki Committee and Bulgarian Lawyers for Human Rights) (02/05/2022) in the case of STANEV v. Bulgaria (Application No. 36760/06) & reply from the authorities (12/05/2022) [anglais uniquement] [DH-DD(2022)531]

1436th meeting (June 2022) (DH) - Rules 9.2 and 9.6 - Communication from NGOs (Validity Foundation Mental Disability Advocacy Centre, KERA Foundation, Network of Independent Experts, Bulgarian Helsinki Committee & Bulgarian Lawyers for Human Rights) (25/04/2022) in the case of STANEV v. Bulgaria (Application No. 36760/06) & reply from the authorities (04/05/2022) [anglais uniquement] [DH-DD(2022)495-rev]

Öner and Türk v Turkey group/ Nedim Sener group/ Altug Tanar Akcam group/ Artun and Guvener group/ Isikirik Group

The freedom of expression groups of cases (Öner and Türk v Turkey group/ Nedim Sener group/ Altug Tanar Akcam group/ Artun and Guvener group/ Isikirik Group) concern unjustified and disproportionate interferences with the applicants’ freedom of expression on account of criminal proceedings for having expressed opinions that did not incite hatred or violence, and the consequent chilling effect on society as a whole (violations of Article 10).

Media and Law Studies Association updated the participants with recent developments of each case within the group of cases:

1.     Öner and Türk Group of Cases

The Öner and Türk group concerns unjustified convictions of the applicants mainly based on Article 6 § 2 (printing of statements made by a terrorist organisation) and Article 7 § 2 (propaganda in favour of an illegal organisation) of the Anti-Terrorism Law; Article 215 (praising an offence or an offender) and Article 216 (provoking the public to hatred, hostility, denigrating a section of the public on grounds of social class, race, religion, sect, gender or regional differences) of the Criminal Code (violations of Article 10).

Article 6/2 of Anti-Terror Law : Printing or publishing declarations or announcements of terrorist organizations:

  • In its entirety, Article 6 of Anti-Terror Law continues to be a source of violations. 

  • Despite the claims of the authorities, the trials based on Article 6/2 of Anti-Terror Law continue and they constituted 1,7% of the charges during the monitoring period.

  • Prolonged trials and violations of the right to fair trial

    Article 6/1 of Anti-Terror Law:  Disclosing or publishing the identity of officials on anti-terrorist duties, or identifying such persons as targets

  • The ambiguous wording of Article 6/1 makes it possible for any public official (even retired ones) to be defined as “an official on anti-terrorist duties.”

    Article 7/2 of Anti- Terror Law: Propaganda in favor of an illegal organization)

  • Amended in 2013 → «the interpretation has been narrowed down the act of making propaganda for a terrorist organization by justifying, praising or inciting its methods, is not recognized as an offense if it does not contain violence, force or threat.»

  • A sentence added in 2019 → «expressions of opinion constituting criticism or not exceeding the limits of reporting, will not constitute a crime.»

  • Article7/2 charges, which were among the charges leveled against individuals in 62 cases, constituted 54% of the terrorism-related charges in this period. In 46 of these trials, journalists were the defendants.

  • Amendments and especially the 2019 addition to the article in no way protect the freedom of criticism or the press.

    Article 215 of the Turkish Penal Code: Praising an offense or an offender

  • The 2013 amendment to the Article 215 of the Turkish Penal Code has not solved the problems with the article and most importantly the problem of “unforeseeability” the Court had found in the case Yasin Özdemir v. Turkey. Individuals can still be charged and sentenced for their expressions which do not pose “an imminent and clear danger to public order.”

  • The lawsuit brought against journalist Cengiz Çandar and activist Kemal Işıktaş proves this point.

  • Indictment filed in 2020 cited social media posts shared in 2017 as evidence for the charges.

Article 216 of the Turkish Penal Code: Provoking the public to hatred, hostility, denigrating a section of the public

  • In their latest action plan, the authorities failed to inform the Committee about the progress or more appropriately the lack of progress regarding Article 216 of the Turkish Penal Code.

  • The article, however, is used more and more to stifle freedom of expression.

  • Examples of popstar Gülşen and journalist Mehmet Güleş demonstrate such tendency.

2.     Nedim Şener Group of Cases

The Nedim Şener group of cases concerns pre-trial detention of journalists on serious charges (offenses against the constitutional order and its functioning and establishing organizations for the purpose of committing crimes) and as per Article 100 of Code of Criminal Procedure.

  • There has been no amendment, no progress

  • Currently at least 61 journalists in prison. 26 out of 61 are in pre-trial detention.

  • Over the past 9 months, 26 journalists have been arrested over the suspicion of «membership in a terrorist organization (Article 314 of TPC and Article 7-1 of ATL)

    • On 16 June 2022, 16 journalists arrested in Diyarbakır

    • On 29 October 2022, 9 journalists arrested in Ankara

    • On 10 January 2023, journalist Sezgin Kartal arrested in Istanbul 

3.     Altuğ Taner Akçam Group of Cases

The Altuğ Taner Akçam group deals with prosecutions under Article 301 of the Criminal Code (publicly denigrating the Turkish nation or the organs and institutions of the state, including the judiciary and the army), which the Court found not to meet the “quality of law” requirement in view of its “unacceptably broad terms” (violations of Article 10).

Article 301 of the Turkish Penal Code

  • Contrary to the claims of the authorities, the 2008 amendment to the Article 301 has not solved the problems and thus the article continues to be a source of further violations.

  • During the monitoring period 25 people, including lawyers, journalists and politicians stood trial on this charge.

  • Continuous legal harassment of the Diyarbakır Bar Association

4.     Artun and Güvener Group of Cases

The Artun and Güvener group concerns unjustified interferences with the applicants’ right to freedom of expression on account of their criminal convictions for insulting public institutions, officials and the President under Articles 125 and 299 of the Criminal Code (the President, the Republic, police officers, tax inspectors etc.) (violations of Article 10). In the case of Vedat Sorli, the Court also indicated under Article 46 that bringing the relevant domestic law into line with the Convention would be an appropriate form of redress that would put an end to the violation found.

a.     Article 125 of the Turkish Penal Code: insulting

  • No amendment

  • 2005 amendment amended two clauses of the article : (4-openly insulting) and (5- insulting public officials working as a committee). Both increase the stipulated prison sentence.

  • There is no “Convention compliant attitude” when it comes to the application of Article 125.

  • 73 people, including journalists, lawyers, activists and politicians stood trial on these charges. The majority of the insult charges were “insulting a public official. (Article 125/3a)”

  • 2 years and 7 months prison sentence imposed upon the Istanbul Mayor Ekrem İmamoğlu for “insulting public officials who work as part of a committee because of their duties. (Article 125/5).”

b.     Article 299 of the Turkish Penal Code: insulting the president

  • No amendment → The authorities claim that the requirement of the Ministry of Justice authorization for prosecution (NOT investigation) («filtering mechanism») has «eliminated the concerns.». However, the 2005 amendment amended the second clause of the article (2- openly) and increased the stipulated prison sentence.

  • Contrary to the claims of the authorities that all the concerns regarding Article 299 have been eliminated through a “filtering measure” and Convention compliant case law, the article is applied in absolute defiance of the Vedat Şorli judgment of the court to punish criticism and stifle freedom of expression.

  • Furthermore, Article 299 of the Turkish Penal Code increasingly gives way to Article 5 violations as it can be seen in the examples of journalist Sedef Kabaş ; a 70 years old man who shared her remarks and Cihan Kolivar, the president of the Turkish Union of Bread Producers.

5.     Işıkırık Group of Cases

The Işıkırık group concerns Article 220 §§ 6 and 7 of the Criminal Code, which provide that anyone who commits a crime on behalf of an illegal organisation or who knowingly and willingly aids and abets an illegal organisation shall be sentenced as a member of that organisation. Based on these provisions, most of the applicants in this group of cases were sentenced to several years of imprisonment for membership of an illegal organisation for having, for example, peacefully participated in a demonstration called for by an illegal organisation, or expressed a positive opinion about such an organisation, without the prosecution having to prove the elements of actual membership. The Court criticised in particular the wording of the provisions and their extensive interpretation by domestic courts which did not provide sufficient protection against arbitrary interferences by the public authorities (§67) and therefore lacked foreseeability and had a chilling effect (violations of Articles 10 and 11).

a.     Article 220/6 of the Turkish Penal Code: Committing an offense on behalf of an organization without being a member

  • The sentence added to the Article 220/6 in 2013 has not narrowed down the interpretation and application of the article.

  • Furthermore, the article continues to be a source violation with regards to Article 11 and also criminalizes both peaceful demonstrations and journalists covering those demonstrations.

b.     Article 220/7 of the Turkish Penal Code: Aiding and abetting an organization willingly and knowingly without belonging to its structure

  •  Contrary to the claims of the authorities, the problems with Article 220/7 have not been eliminated and the article continues to be a source of violations.

  • During the monitoring period, 58 activists, 38 journalists and 13 politicians were tried on Article 220/7 charges.

  • Furthermore, 5 journalists and a media employee were sentenced for “aiding and abetting an organization willingly and knowingly without belonging to its structure.”

Media and Law Studies Association provided recommendations to the Committee of Ministers to:

  • Re-examine these groups of cases more frequently.

  • Request the authorities to revise their action plan so that they address structural problems arising from the legislative frameworks as identified by the ECtHR in these groups of cases.

  • Reiterate demands for amendments to Article 125 and 301 of the Turkish Penal Code and the abolition of Articles 220/6, 220/7 and 299 of the Turkish Penal Code. 

  • Urge the authorities to consider amending Article 6 of Anti-Terror Law so that it cannot be employed to intimidate investigative journalism.

  • Persistently request the authorities to provide up-to-date and detailed statistics on criminal investigations and prosecutions related to freedom of expression and the press, and to provide comments on these statistics.

  • Reiterate calls for strong high-level political messages from the authorities. 

  • Considering the absence of progress in the implementation of these groups of cases, as well as the repeated and extensive use of these legal provisions in order to target journalists, media employees and other persons exercising freedom of speech, the Chair of the Committee should send a letter to the Minister of Justice of Turkey regarding the non-implementation of these groups of cases.

Please see the slides for the full Briefing.

Relevant Documents: