The independence and impartiality of investigative authorities and rights of victims in Georgia

Nino Jomarjidze, Lawyer, Georgian Young Lawyers’ Association

For many years, the lack of transparent, independent and effective investigation of crimes committed by law enforcement agencies has been identified as one of the most serious problems in Georgia.[1] Impunity cultivated by the failure to investigate and punish perpetrators of ill-treatment has led to the systemic abuse of power by law enforcement officials.

This article explores the Georgian Government’s failure to ensure the institutional and practical independence of investigative bodies, in spite of some general measures being undertaken by the Government on the basis of judgments from the European Court of Human Rights (ECtHR) delivered against Georgia in the Gharibashvili group of cases.[2] The article firstly argues that the adopted general measures have been inadequate to ensure the independence and impartiality of investigative authorities nationally. Secondly, this article examines some of the deficiencies in the domestic legislation regarding the requirements of impartiality of investigative bodies, namely the importance of creating an independent investigative mechanism with prosecutorial and investigative powers as an effective tool to execute the general measures undertaken on the basis of the ECtHR judgments. Finally, the article highlights the need to enhance efforts for the meaningful involvement of victims into investigations.

Chief Prosecutor's Office in Georgia

Chief Prosecutor's Office in Georgia

Execution status of the Gharibashvili group of cases

The Committee of Ministers (CM) has supervised Georgia’s implementation of the ECtHR’s Gharibashvili group of judgments since 2008. This group of six judgments concerns the lack of an effective investigation into allegations of violations of the right to life and of ill-treatment (procedural limbs of Articles 2 and 3 of the European Convention on Human Rights (ECHR)). In addition, in two cases the Court found a substantive violation of Article 3 due to the excessive use of force by the police in the course of the applicant’s arrest and/or in custody. Despite differences in factual circumstances, in all of these cases the ECtHR concluded that the official investigations conducted at the material time lacked the requisite independence and impartiality due to the institutional connection, and even hierarchical subordination, between those implicated and the investigators in charge of the cases. This group of judgments include the case of Tsintsabadze v Georgia, in which the Georgian Young Lawyers’ Association (GYLA) and the European Human Rights Advocacy Centre represented the applicant before the ECtHR.[3] This case concerned the death of the applicant’s son at a penitentiary institution, where prison officers discovered him hung in the prison's storeroom. The applicant consistently denied that her son had committed suicide and claimed that he had been killed and then hung to conceal the murder. The ECtHR found a violation of the procedural limb of Article 2 on account of deficiencies and omissions identified in the course of the investigation into the death of Mr. Tsintsabadze.

Additionally, in December 2016, the Committee decided to transfer the 11 friendly settlements from the standard to the enhanced supervision procedure and to join them with the Gharibashvili group. In all of the cases, the Government of Georgia acknowledged allegations of failure to investigate violations of right to life and ill-treatment and has undertaken the obligation to provide effective investigation.[4] 

In December 2016, while examining this group of cases, the CM called upon the Georgian authorities to intensify “their efforts to remedy the deficiencies in domestic legislation regarding the requirements of impartiality of investigative bodies, in investigations to which Articles 2 and 3 of the Convention apply.”[5]

On 6 September 2017, a quarterly civil society briefing was held on cases scheduled for review at the 1294th Human Rights Meeting (DH) of the CM from 19 to 21 September 2017.[6] During the meeting the members of the CM were briefed on the implementation of different cases, including Gharibashvili group v Georgia. GYLA provided an overview of general measures taken by the Georgian authorities and highlighted the need to adopt further measures in order to ensure systematic and meaningful reform of the investigative authorities and to enhance efforts relating to effective involvement of victims into investigations.

As the latest decision adopted on 21 September by the CM reveals, the CM closed the examination of two cases (cases of Gharibashvili and Khaindrava and Dzamashvili v. Georgia) and underlined that the examination of the outstanding questions regarding individual and general measures in the former Gharibashvili group of cases will be pursued within the framework of the new Tsintsabadze group of cases.[7]

Overview of the national legislation

In order to remedy the deficiencies regarding the independence and impartiality of investigative bodies, the Georgian Government has adopted various legislative amendments in the Law on the Prosecutor’s Office and Order 34 of the Minister of Justice of Georgia (7 July 2013) on Determination of Territorial and Investigative Subordination of Criminal Cases (hereafter “the regulations”). However, the amendments (described below) made in these regulations fail to adequately address the primary concerns surrounding the independence, impartiality and politicisation of the Prosecutor’s office.

The amendments to the Law on the Prosecutor’s Office puts in place a new procedure for the appointment of the Chief Prosecutor and rules for the appointment, dismissal, promotion and discipline of city, regional and other prosecutors. Yet the amendments still do not ensure sufficient protection from political interference with the Chief Prosecutor’s selection and appointment and does not fully achieve the stated goal of depoliticising the office of the Chief Prosecutor. This is due to several reasons, including:

·       The law on the Prosecutor’s Office proclaims that the Prosecutorial Council, one of the functions of which is to select the Chief Prosecutor, “shall be established at the Ministry of Justice”. The meaning of this provision is not entirely clear and could be defined as being an integral part of the executive branch. The goal of establishing the Prosecutorial Council was to ensure the depoliticisation and autonomy of the prosecution service from the executive (including the Ministry of Justice) and legislative branches, thus the present norm raises doubts about the independence and impartiality of the Prosecutorial Council.

·       The Minister of Justice, which is part of the Government representing the parliamentary majority, heads the Prosecutorial Council. According to the Law, the position of the Minister of Justice within the Prosecutorial Council is very strong. In particular, he/she has the following powers: 1) to chair the meetings of the Prosecutorial Council ex officio; 2) to nominate a candidate for the position of the Chief Prosecutor; and 3) vote as a member of the Prosecutorial Council for the approval of this person. Even if the Minister is a member of the Prosecutorial Council ex officio, having him/her chair the Council raises doubts as to the independence of this body.

·       The Minister of Justice has the initial power to nominate the candidate. According to the new amendments, the Minister of Justice shall hold formal discussions concerning the candidates for membership and substantiate his/her choice before presenting three candidates to the Prosecutorial Council. Despite the obligation of the Minister to hold discussions/consultations concerning the candidates, it did not make the process transparent as under the Law the Minister is not bound by any rules of selection. Second, the Government and the Parliament, by a simple majority, approve the decision of the Prosecutorial Council on the appointment of the candidate proposed by the Minister of Justice. Thus, the powers of the Minister of Justice with respect to the nomination of candidates for the position of Chief Prosecutor are too strong and should therefore be reconsidered and the influence of the Government/parliamentary majority reduced.

The above-mentioned shortcomings clearly confirms that the reform remains essentially political in nature and attempts to depoliticise the Office of the Chief Prosecutor have not been successful.[8] 

In addition, Order 34 provides that crimes allegedly committed by law enforcement officials fall under the jurisdiction of the Prosecutor’s Office of Georgia (POG). However, the Order retains a discretion for other investigative bodies to investigate crimes allegedly committed by law enforcement officials in particular circumstances. For example, under the Order investigators of the Ministry of Corrections (MOC) are entitled to investigate crimes committed on the territory of the penitentiary institutions of the MOC. The investigative jurisdiction of the MOC covers crimes committed by both its employees and by prisoners. In order to carry out the investigation the MOC has created an Investigative Division (ID). Hence, when the ID investigates a crime allegedly committed on the territory of the penitentiary institution by its employees, legitimate questions arise regarding independence and impartiality of the investigation since the ID is a department within the MOC. Furthermore, the present Order allows crimes allegedly committed by the employees of the Ministry of Internal Affairs (MIA) to be investigated by the investigative authorities of the same Ministry if these crimes are uncovered by the MIA. The same rule applies to the POG, which under the law is authorized to investigate crimes committed by its employees.

Moreover, one of the most significant disadvantages of the legislation is the wide discretion granted to the Prosecutor to transfer a criminal case from one investigative body to another without providing any justification or supporting arguments for the decision. Such wide discretion gives the possibility to the Prosecutor to transfer the criminal case to another investigative body even if under the Order, the case falls under the jurisdiction of the POG.[9]

Proposed draft law to create an effective independent investigative mechanism

The lack of institutional independence while investigating crimes allegedly committed by law enforcement officials therefore remains a challenge in Georgia. Concern about the systemic failure to conduct effective investigations has also been raised by both international and national organisations.[10]  

In order to eradicate such structural and/or systemic deficiencies and guarantee the independence and impartiality of investigations, it is of the utmost importance to establish an independent investigative mechanism with a mandate to ensure the institutional independence of investigations in criminal cases. Georgian NGOs, supported by international actors, have contributed to a draft law on setting up this independent mechanism.[11]

The draft law proposes that the mechanism will be separate from the executive authorities, and will have exclusive jurisdiction to investigate and prosecute crimes that are allegedly committed by law enforcement officials. Moreover, the mechanism has discretionary jurisdiction over any crime if there is a reasonable suspicion that a conflict of interest might arise during the investigation process or prosecution. To ensure the legal and practical independence of the mechanism, it will have a mandate to unilaterally decide whether or not to initiate an investigation or prosecution as well as to undertake relevant investigative measures. Under the draft law, victim participation is secured through mandatory information disclosures, with reasonable frequency. Furthermore, the mechanism will be headed by an independent Commissioner selected with the involvement of all three branches of the Georgian Government and civil society, ensuring the comprehensive institutional independence of the mechanism and its staff. Under the draft law, a further layer of independence and impartiality is ensured as political party members cannot be appointed as Commissioner. The draft law makes the mechanism accountable to Parliament, and the Commissioner is required to submit an activities report twice a year.

Overview of the national legislation regarding the victim’s effective involvement within the pending investigation

In order to address the discrepancies identified by the ECtHR in the above-mentioned cases regarding the victim’s effective involvement within the pending investigation, the Georgian Government amended the Criminal Procedure Code of Georgia (CPC) in 2014. By the amendments, the legislation has improved; however, the existing legislation is not in full compliance with general principles concerning the rights of the victim in the criminal proceedings, thus the condition of the victim still remains a problem.

GYLA report on Victims’ rights under Criminal Procedure Code (practice in Georgia and international approaches)

GYLA report on Victims’ rights under Criminal Procedure Code (practice in Georgia and international approaches)

Under the new amendments, the following procedural rights can be afforded to a victim: a right to appeal the Prosecutor’s resolution on the refusal of the status of a victim, on the annulment of the victim status and on the termination of the investigation/criminal prosecution. According to the amendments, in cases of particularly grave crime, the victims are authorized to appeal the above-mentioned resolutions to the superior prosecutor and afterwards to the domestic court of first instance. While the legislation provides the victims in case of particularly grave crime a two-tier system for appealing, the victims in case of less grave and grave crimes are deprived of such possibility. In particular, under the CPC the latter has the right to appeal the prosecutor’s resolutions on the above-mentioned issues only to the superior prosecutor.

In its action plan of June 2015 the Georgian Government noted that the fact that appeal to the domestic court is only possible in cases of particularly grave crimes reflects the State’s need to prevent the overburdening of the relevant systems by ensuring their effective and expeditious operation.[12] However, the difficulties of general administrative nature, which may occur in case of appeal, may not be the basis for restricting the right to appeal to the court. The victim is more than just a witness, which requires proper and sufficient involvement in the process. Thus, it is not appropriate to link the right of appeal to the gravity of crime as such regulation unreasonably restricts the rights of the victims in case of less grave and grave crime. It is noteworthy to note the judgment of the Constitutional Court of Georgia regarding this issue. In particular, the Court highlighted that for proper protection of the victim’s rights, it is of utmost importance to carry out judicial control on the resolutions of the superior prosecutor. The judicial control is the most powerful and effective way to force the prosecutor to be impartial while exercising discretionary powers. Thus, the Constitutional Court underlined that the victim shall have the opportunity to appeal, including to the domestic court the resolutions on the above-mentioned issues despite the categories of crimes.[13]

Conclusion

Based on the above, the Georgian Government should adopt appropriate legislative amendments and practical measures to the effect of establishing an independent investigative body to conduct investigations and bring charges in cases involving violations of Articles 2 and 3 of the Convention. Creation of an independent investigative mechanism with a mandate and competence that will guarantee the independence and impartiality of the investigative bodies is the only existing solution to counter the culture of impunity and the systemic failure of the State to effectively investigate crimes allegedly committed by law enforcement officials. Furthermore, the Georgian Government should undertake further amendments for ensuring adequate protection of the victim’s interests within the ongoing investigation as well as for the full execution of the general measures communicated by the ECtHR to the Georgian Government in the Gharibashvili group of cases (re-grouped by the CM as the Tsintsabadze group since 17 September 2017).

This is an updated version of the article published in the Summer 2017 Bulletin of the European Human Rights Advocacy Centre.

 

[1] https://goo.gl/KLglP3, https://goo.gl/n1ENAR, https://goo.gl/dvztwX.

[2] https://goo.gl/JAAZ0T

[3] Tsintsabadze v Georgia  (No. 35403/06), 15.2.11, https://goo.gl/xIJ0tu

[4] https://goo.gl/9j89DT

[5] https://goo.gl/JAAZ0T

[6] https://goo.gl/tXQXzd

[7] https://goo.gl/bPbJh5

[8] https://goo.gl/Hlmzxe

[9] https://goo.gl/g6Xk5v

[10] https://goo.gl/KLglP3, https://goo.gl/n1ENAR, https://goo.gl/dvztwX

[11] https://goo.gl/B5A3yD, https://goo.gl/BCq71r

[12] https://goo.gl/5TLxag

[13] https://goo.gl/a39ZTq

Transgender rights in Lithuania – The European Convention as a catalyst for change

By Tomas Vytautas Raskevičius of the Lithuanian Gay League and Nigel Warner of ILGA-Europe

In this article we show how, in recent years, a combination of European Convention cases and advocacy at national and Strasbourg levels[1] is moving forward the debate on the rights of trans persons in Lithuania, a country where political and faith-based opposition is such that any progress for long seemed impossible.

The right of trans persons to legal recognition of their gender identity[2] (‘legal gender recognition’) was finally acknowledged by the European Court of Human Rights (ECtHR) in 2002 in two cases where the UK was required to change the gender of the applicants on their birth certificate, and permit them to marry a person of the gender opposite to their reassigned gender.[3] At that time a requirement for trans persons to undergo gender reassignment (generally taken to include being rendered infertile) as a pre-condition for legal gender recognition was the norm in Council of Europe member states, regardless of whether desired by the individual concerned. Since then such a requirement has come to be seen as a serious human rights violation, condemned at the Council of Europe by the Commissioner for Human Rights in 2009 and by the Parliamentary Assembly in 2013.[4] However, as we shall discuss further below, it is only in recent months that the European Court of Human Rights has had an opportunity to rule on this.

Social campaign #TRANS_LT by the National LGBT* rights organization LGL. Photo credit: LGL

Social campaign #TRANS_LT by the National LGBT* rights organization LGL. Photo credit: LGL

Back in 2000 Lithuania’s Civil Registration Rules permitted “a change of civil status documents”, but only following gender reassignment. In 2001 a new Civil Code supplemented this by confirming that an unmarried adult had the right to gender reassignment. However the subsidiary legislation needed to implement this right was never adopted due to opposition in parliament and by the Catholic Church. Without access to gender reassignment there could be no legal gender recognition. In 2007, in L v. Lithuania, the European Court of Human Rights found this situation to be a violation of the right to respect for private life.

The applicant in L v. Lithuania had taken his case at a time when the capacity of local NGOs to advocate for the introduction of gender reassignment treatment was very limited. In the absence of such advocacy, and relegated to the Committee of Ministers’ “standard” execution of judgments procedure,[5]  the case lay dormant at Strasbourg until 2013 when the Lithuanian authorities finally submitted an Action Plan. Implicitly acknowledging the difficulty of persuading Parliament to adopt the necessary subsidiary legislation, it proposed repealing the requirement for this legislation, and introducing two separate initiatives: a simplified procedure for changing entries in official documents; and a request to the medical profession to develop reassignment treatment procedures. While the former was a welcome proposal, the latter was not. Hostility to trans rights in the medical profession was such that there was no guarantee that the procedures would be forthcoming if merely voluntary. Moreover, the need was not just for written procedures, but for suitable medical facilities. And, just as seriously, the proposals maintained the requirement that legal gender recognition be conditional on gender reassignment.

Even these defective proposals met with strong opposition. In May 2013 the Lithuanian Parliament gave initial approval to a draft bill (supported by the Catholic Church) which proposed banning gender reassignment surgery altogether.[6]

Staff members and European Voluntary Service volunteers of the National LGBT* rights organization LGL. Photo credit: LGL

Staff members and European Voluntary Service volunteers of the National LGBT* rights organization LGL. Photo credit: LGL

Given the slow progress on the case, and the fact that it affected the rights of all trans persons seeking legal gender recognition in Lithuania, the Lithuanian Gay League (LGL) and its partners began advocating that L v. Lithuania be the subject of increased scrutiny by the Committee of Ministers through “promotion” to the enhanced execution of judgments procedure. A joint hearing by the Parliamentary Assembly’s Legal Affairs and Human Rights and Equality and Non-Discrimination Committees in January 2014 provided an opportunity to make the case to a wide audience. In September 2014 L v. Lithuania was moved to the enhanced supervision procedure.

This prompted the Lithuanian authorities to make more serious efforts. In January 2015 a working group led by the Deputy Minister of Health (consisting of professors of medicine, officials of the Ministries of Health and Justice as well as the Government Agent) was set up. It heard independent experts and NGOs, including LGL and  the Human Rights Monitoring Institute (HRMI) . However the proposal then developed by the Ministry of Justice ignored their input, continuing to require gender reassignment as a condition of acquiring legal gender recognition and failing to allow for the provision of healthcare services. Moreover, as a result of divisions within the government the bill was not even presented to Parliament.

In May 2016 the  Lithuanian Government Agent organised a public consultation requesting views on whether gender reassignment should  or should  not be a precondition for legal gender recognition. The majority of replies supported the latter proposition. The following month she organised a roundtable bringing together ministries, the equal opportunities ombudsman, academics, the Catholic bishops, and LGL and HRMI. It was clear from the viewpoints expressed that no compromise meeting the interests of all the stakeholders could be found.

In June 2016 the Committee of Ministers expressed its concern that after more than eight years the judgment still had not been implemented.

Ensuring that any legislation eventually adopted does not require gender reassignment as a precondition for legal gender recognition remained of particular concern for LGL and its partners. The L v. Lithuania judgment had been silent on this question. LGL’s submissions to the Committee of Ministers argued that in view of other Council of Europe policy on the subject (referred to above), such a requirement should be ruled out.  However, there was no indication that the Committee of Ministers would support this position.

Accordingly, in December 2016 LGL opened a new front, initiating cases in the domestic courts on behalf of two trans men challenging the requirement for reassignment surgery. The timing was perfect. Just four months later, in April 2017, the European Court of Human Rights delivered its historic decision in the cases of A.P., Garçon and Nicot v. France, ruling for the first time that such a requirement violated Article 8 of the Convention. In their subsequent judgments, the Lithuanian courts followed the ECtHR’s lead. While their judgments do not of themselves establish binding precedents, they mark the beginning of what is hoped will become a judicial standard. Such a standard, combined with the newly adopted position of the ECtHR should ensure that the requirement for gender reassignment will be dropped in future legislation on legal gender recognition.

In parallel with these developments, the government has instructed the Ministry of Justice and the Ministry of Health to prepare draft legislation on a gender reassignment procedure. While it is too early to predict how this will develop, the authorities appear more receptive to input and involvement by the trans and NGO communities than was the case during the development of the previous legislative proposals in 2015.

 

[1] The NGOs involved in this advocacy work are the Lithuanian Gay League, the Human Rights Monitoring Institute, Transgender-Europe, and ILGA-Europe.

[2] Gender identity refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body and other expressions of gender, including dress, speech and mannerisms.

[3] Christine Goodwin v. UK, I. v. UK

[4]  Commissioner for Human Rights – Issue Paper on Human Rights and Gender Identity (2009); Parliamentary Assembly Resolution 1945 (2013)1 - Putting an end to coerced sterilisations and castrations

[5] Under the execution of judgments process there are two modes of supervision: “standard” and “enhanced” supervision. Resolution of cases under the “standard” procedure is left to a dialogue between the execution of judgments department and the state concerned. For a case to be considered under the “enhanced supervision” procedure, which involves full and regular review by the Committee of Ministers, a case must be deemed to face either “structural” or “complex” problems.

[6] This bill did not proceed further.

Discrimination against Roma in education: waiting for changes on the ground

By Štěpán Drahokoupil, Advocacy Officer, Open Society Fund Prague

In 2007, the European Court of Human Rights rendered judgment in D.H. and others v. the Czech Republic (Application No. 57325/00, November 13, 2007). This landmark case was brought by 18 Roma students from the Ostrava region who complained that they were diagnosed as children with “mild mental disability” and enrolled into special education because of their ethnicity. The ECHR’s Grand Chamber found that the practice of labelling Roma children as children with “mild mental disability” and segregating them in special education violated Article 14 of the European Convention.[1]

Roma children with their teacher in a kindergarten in Ostrava. Photo credit: Open Society Fund Prague 

Roma children with their teacher in a kindergarten in Ostrava. Photo credit: Open Society Fund Prague 

Roma children in the Czech Republic are still disproportionally assessed as individuals with mild mental disability. The data from the 2016/2017 school year collected by the Ministry of Education, Youth and Sports show that 30.9 % of children who are taught as children with “mild mental disability” are Roma[2], yet the share of Roma children in all elementary schools in the Czech Republic is 3.7 %.

But even though the share of Roma children has not significantly changed over the last four school years, there is some hope for the future. After years of political instability, the Czech Republic has approved a number of reforms that lay the groundwork for inclusive education; however, the impact on the ground of these measures is still unclear and needs to be closely monitored.

The implementation of the D.H. judgment has been greatly complicated by the instability of the Czech Governments and Ministers of Education. Since 2006 the average time at the post of the minister was less than 13 months. The Czech Government proceeded with some changes during the first few years after the judgment, but it took until 2015 and 2016 for significant legislative changes in the law. 

The inclusive reforms of 2015 and 2016 consisted of approving two amendments to the Czech Republic’s School Act and the abolishment of its educational program for children with mild mental disability. The Parliament approved a bill in 2015 that guarantees support measures to every child with disabilities and to children with other special educational needs. These support measures are free of charge and are provided to children in mainstream and special schools[3]. Mainstream schools educating children with special educational needs faced more obstacles and received less funds than the special schools. One analysis showed that the state provided 2.2 times more funds, when a child with mild mental disability was educated in a “practical school”.[4] Despite the fact that “practical schools”—where most of the children with mild mental disability were educated in the past—have been abolished in name, these same schools were then transformed into either mainstream or special schools. This transformation—and whether it has led to less segregation and discrimination against Roma children—is still to be assessed.

The second inclusive reform introduced a compulsory year of pre-school to all children from the age of five years. This measure aims at improving enrolment of Roma children into kindergarten. According to data from the EU Agency for Fundamental Rights, only 34 percent of Roma children are enrolled into pre-school education, in comparison with 86 percent of non-Roma[5].

When the bill on compulsory pre-school education was discussed in the Parliament, inclusive education became a politically controversial issue. Even though the Parliament approved the first inclusive reform in February 2015, some MPs—including many who had voted for the 2015 bill—started questioning inclusive education within less than a year. One of the reasons for their decision was a massive campaign by the biggest tabloid in the Czech Republic against inclusive education called “Stop Harmful Inclusion[6].

Several MPs in the Chamber of Deputies (the lower chamber of the Czech Parliament) also tried to misuse the bill on compulsory pre-school by proposing to postpone the date of the effect of the support measures by two years (from September 2016 to September 2018). Even though the main aim of the bill was compulsory pre-school, MPs spent more time debating details of the first inclusive education reform they had passed the previous year. This attempt to postpone the effect of the support measures was not successful in the Parliament; a similar unsuccessful attempt was made in the Senate.

Every bill must be signed also by the President of the Czech Republic, who has a power to veto it. The veto can be overridden by the Chamber of Deputies. The president Miloš Zeman decided to veto the bill on compulsory pre-school and one reason that he gave was that he did not agree with the system of support measures and inclusive education[7] (again, this was the very bill he had signed into law the previous year with no objection.) Vetoing a bill, because of measures that the bill does not contain is a text-book case of what is now being called post-truth politics. The Chamber of Deputies overrode the veto.

In the face of these obstacles, civil society organizations, inclusive schools and parents have played a crucial role in the implementation of the judgment, particularly in the area of providing relevant information to stakeholders at the national and international level. Indeed, at one point NGOs that supported inclusive education reforms became a target of the “Stop Harmful Inclusion” campaign and were portrayed as a group only lobbying for their own financial resources[8]. This accusation turned out to be an “alternative fact”, because almost all targeted NGOs received no funds from the state.                                                            

Roma university students in Prague. Photo credit: Open Society Fund Prague

Roma university students in Prague. Photo credit: Open Society Fund Prague

In the end, all necessary reforms were passed and came into effect or about to come into effect. The first inclusive reform introducing support measures took effect in 2016 and the second, regarding the compulsory year of pre-school, will come into effect in September 2017. The educational program for children with mild mental disability was abolished at the start of the current school year.

The bad news is that after almost a decade after the judgment, Roma children in the Czech Republic still face widespread discrimination and segregation. Not only are they wrongly assessed as children with mild mental disability, but one quarter of all Roma children are educated in the 83 segregated schools that have Roma majorities. Some Roma children also face segregation on the classroom level. There is no data for the whole country, but there are some known cases. One is in the town Krásná Lípa, where a headmaster established two classes according to a “neutral” criteria which was whether or not a child had attended kindergarten. This resulted in there being one all-Roma classroom and one non-Roma classroom[9].

Importantly, discrimination in mainstream education was recently recognized by the Czech judiciary as well, by a District Court in Ostrava[10]. The Court decided that two Roma boys were denied enrolment into mainstream school due to their ethnicity. The decision of the Court is groundbreaking, since it is the first acknowledgment of discrimination in education on the basis of ethnicity at the level of District Court (the first level of courts in the Czech Republic). 

The good news is that the Government passed major reforms from the Action Plan presented to the Committee of Ministers[11]. We can see how crucial political will is for the proper implementation of judgments. Another piece of good news should also be seen in the very fact that this data is now being collected. Since the inclusive reforms are so recent, it is hard yet to evaluate this data. Moreover, having such data will not change anything on its own, but it is and will continue to be a key tool for monitoring and evaluating the inclusive reforms that are being implemented.

 

[1] Most of children with the diagnosis of “mild mental disability” are taught in special education, Roma and non-Roma. According to the data of the Ministry of Education, Youth and Sports, only 15, 25 percent of children with mild mental disability were taught in mainstream school in 2016. Despite this low number, it is an increase from 4 percent in 2007. Vzdělávání dětí s lehkým mentálním postižením (LMP) v datech, www.cosiv.cz, January 17, 2017

[2] DD(2017)217 - Communication from the Czech authorities - Action plan, February 15, 2017

[3] The are two types of elementary schools in the Czech Republic: mainstream and special school. Every child has a right to be enrolled into his, her local mainstream school, including children with disabilities and special educational needs. If the child is diagnosed with disability, it needs an approval of Special Educational Center to be enrolled into special education. Parents also must provide an „informed consent“ with such enrollment.

[4] Klusáček, Jan, Hrstka, Daniel: Nákladnost vzdělávání dětí s lehkým mentálním postižením v základních školách praktických, 2015

[5] Second European Union Minorities and Discrimination Survey (EU-MIDIS II) Roma – Selected findings, November 2016

[6] Czech foundation says tabloid is bolstering media hysteria about school reforms, Romea.cz, February 23, 2016

[7] Czech President says he vetoed education amendment because of inclusion, Romea.cz, May 5, 2016

[8] Analysis: Czech tabloid launches campaign against inclusive education, Romea.cz, March 20, 2016

[9] Czech mayor rejects ombudsperson's proposal on how to end discrimination of Romani children in local school, Romea.cz, June 28, 2016

[10] Justice Served - Romani Boys Denied Enrolment in School Win Case in Czech Republic, ERRC, March 2017

[11] DD(2017)217 - Communication from the Czech authorities - Action plan - 15.02.2017

Steps by the Hungarian Government to reduce prison overcrowding: far from ideal

By Hungarian Helsinki Committee

The average number of detainees in Hungary has been constantly rising until 2014. By 2014, the average overcrowding rate had reached 141% but overcrowding in certain institutions reached 200%, making the Hungarian prison system one of the most crowded in Europe. Overcrowding was (and still is) often accompanied by further unsatisfactory detention conditions: for example, toilets separated from the rest of the cell by only a textile curtain, or the presence of bedbugs.

Prison cell in Hungary. Photo credit: Hungarian Helsinki Committee

Prison cell in Hungary. Photo credit: Hungarian Helsinki Committee

In a pilot judgment delivered on 10 March 2015 in the Varga and Others v. Hungary case, the European Court of Human Rights (ECtHR) concluded not only that the detention conditions of the applicants in the case – including the inadequate moving space per person – amounted to inhuman or degrading treatment, but also that overcrowding of prisons constituted a structural problem in the country. In addition, the ECtHR found a violation of Article 13 of the European Convention on Human Rights, read in conjunction with Article 3, on account of the absence of an effective remedy to complain about the detention conditions. The Court ordered that Hungary should, within six months, produce “a time frame in which to make appropriate arrangements and to put in practice preventive and compensatory remedies in respect of alleged violations of Article 3 of the Convention.” In short, Hungary must develop a plan to reduce prison overcrowding.

The Hungarian Government submitted an action plan for implementing the judgment to the Committee of Ministers (CoM) of the Council of Europe in December 2015. The Hungarian Helsinki Committee (HHC) is of the view, however, that the measures outlined in the action plan are insufficient to comply with the requirements included in the pilot judgment and fail to address systemic deficiencies. For instance, in contrast to recommendations laid out by the Court in the pilot judgment, the Government’s action plan indicates that it intends to solve the problem of overcrowding almost exclusively by building more prisons, rather than reducing the number of existing detainees.

The HCC’s concerns, which were also presented at one of the regular briefings organized by the European Implementation Network (EIN) and the Open Society Justice Initiative (OSJI) to the member states’ representatives to the Council of Europe in February 2016, were reinforced by the CoM’s decision of March 2016. While the Committee welcomed some of the Government’s measures (e.g., the introduction of the “reintegration custody,” which means release in the last six months of imprisonment while monitored with an electronic device, available for certain categories of convicts), it encouraged Hungary to intensify its efforts to promote alternative non-custodial punitive measures and to minimise the recourse to pre-trial detention. It also invited Hungary to submit information on its planned sui generis compensatory remedy. Finally, the CoM noted with regret that it received no information as regards the putting in place of a preventive remedy in respect of alleged violations of Article 3 of the Convention on account of inhuman and degrading conditions of detention, as the pilot judgment had ordered.

The CoM invited Hungary to provide an updated action plan, which the Government did in July 2016, and a related law was adopted in October 2016, introducing a sui generis compensatory remedy and widening the reintegration custody’s scope of applicability. However, the solution introduced remains far from ideal, as the HHC also signalled in the course of the legislative process. Two concerns in particular should be noted:

· The law does not include any preventive remedy, even though the introduction of such a remedy was requested by both the pilot judgment and the CoM.

· The detailed procedural rules for the sui generis compensatory remedy entail the risk that it will not be able to serve as an effective domestic remedy, while putting a huge extra burden on penitentiary staff and penitentiary judges. (For example, detainees are required to submit complaints before they could request compensation, but the complaint must be repeated after every three-month period if the conditions do not improve. Furthermore, the highest possible compensation that may be granted under the new rules is hardly over 50% of the average damages granted by the ECtHR.)

The CoM is yet to deliver a decision on the latest steps of the Hungarian Government concerning the implementation of the pilot judgment. Meanwhile, on 8 November 2016, the ECtHR suspended the examination of the 6,800 applications pending before it concerning conditions of detention in Hungary in light of the new law adopted.

Meanwhile, one year after the ECtHR’s pilot judgment became final, the implementation of Varga, and the issue of prison overcrowding generally, are still not adequately settled in Hungary, with the average overcrowding rate remaining higher than 150% in certain penitentiaries.

The implementation of ECtHR judgments concerning detention conditions in Romania, a political issue

Penitentiary in Romania. Photo credit: APADOR-CH.

Penitentiary in Romania. Photo credit: APADOR-CH.

By APADOR-CH, Romania

There are currently 28.000 inmates detained in Romanian prisons despite the fact that they can only accommodate a maximum of 17.000. In 2015, the European Court of Human Rights (ECtHR) found 27 Article 3 violations against Romania, the second highest number of cases lost in 2015 that year in respect to inhuman and degrading treatment.[1] The same year, the Court decided to join four applications and ask the parties if the cases were suitable for the application of the pilot judgment procedure.[2]

This decision to join the cases followed a semi-pilot judgment in the case of Iacov Stanciu v. Romania (no. 35972/05, 24 July 2012), in which the ECtHR emphasized that “the Court had regularly found violations of Article 3 of the Convention in respect of the conditions of detention that have existed over a number of years in Romanian prisons, in particular overcrowding, inappropriate hygiene and lack of appropriate health care.[3] Concerning the existence of effective domestic remedies, the Court noticed that they were not present in Romanian legislation and urged the state to take all measures to remedy the situation. The ECtHR emphasized that “the remedy—which, under Romanian law, relies mainly on a “delegate judge’s” should allow the delegate judge and the domestic courts to put an end to the situation and to grant compensation where appropriate”.[4]

In 2016, for the first time in 25 years, the Government (a”technocratic” one, following the resignation of Prime Minister Victor Ponta in November 2015) decided to pay attention to the situation of prison conditions. Thus, on 27 April 2016the Romanian Government adopted a memorandum for the approval of a  timetable for measures aimed to improve the detention conditions and the probation system. The document includes the plans for the construction of new prisons, envisaged to be ready by 2023.

On 1 July 2016, the Ministry of Justice and the National Administration of Penitentiaries adopted the Action Plan aimed at improving detention conditions. Its focus is on social reintegration, primarily on activities which will increase professional training that will facilitate access to work after release. The assumption is that on a long term this would lead to a lower reoffending rate and therefore to a decrease of the prison population.

On 23 November 2016, the Government also adopted a draft law amending and supplementing Law no. 254/2013 on the execution of sentences and custodial measures ordered by the court during the trial. [5]The bill has two purposes: (1) to provide compensation to persons serving sentences of imprisonment in conditions of severe overcrowding; and (2) to contribute at the same time to relieving the prison population. Thus, all persons deprived of their liberty shall automatically have the right to benefit from conditional release if they meet the conditions set by the draft law or who have been or are housed in overcrowded conditions (defined as a space smaller than or equal to 3 sqm). The draft law provides that for every 30 days spent by a prisoner in an inadequate space, three days are deducted from his/her original sentence (the 30 days need not be consecutive).

The measures adopted give us hope that in the future, judgments against Romania finding a violation of Article 3 will decrease. But with December’s parliamentary elections, which will lead to a new Government, it will be up to the new Parliament and Government to stick to the adopted plan.

 

[1]According to official statistics of the European Court of Human Rights, available at: http://www.echr.coe.int/Documents/Stats_violation_2015_ENG.pdf  (last visited on the 29h of November 2016)

[2] ECtHR, Rezmives and others v. Romania, http://hudoc.echr.coe.int/eng?i=001-157919 (last visited on the 29thof November 2016)

[3]ECtHR, IacovStanciu v. Romania, Application no. 35972/05, Judgment of 24 July 2012, para. 195

[4] ECtHR, IacovStanciu v. Romania, Application no. 35972/05, Judgment of 24 July 2012, para. 198

[5] This is the law on the enforcement of sentences and of measures involving deprivation of liberty ordered by the judicial bodies during criminal proceeding. 

EIN first newsletter: foreword by its co-founder Dr Başak Çalı

© HERTIE SCHOOL OF GOVERNANCE / DAVID AUSSERHOFER

© HERTIE SCHOOL OF GOVERNANCE / DAVID AUSSERHOFER

Dear readers of the EIN newsletter

It is my great pleasure to write the foreword to the first Newsletter of the European Implementation Network (EIN) as a member of the founding Steering Committee.  

The forging of a European civil society network focused on the implementation of human rights judgments in Europe could not be more timely. In the past two decades the number of human rights violations judgments has steadily increased in Europe. This increase, however, has not been met with full compliance by states.  What is more, the lack of implementation of human rights judgments that concern systemic or structural issues have led to a significant increase in the pending repetitive cases before the European Court of Human Rights. Indeed, the case backlog problem of the Court has always reflected a lack of implementation at the national level.

The role of civil society in facilitating, lobbying for and monitoring the implementation of human rights judgments is undeniable. Human rights judgments are often indicators of much deeper human rights problems. A focus on judgments and their implementation improves human rights protections not only for the victims of violations, but for society at large.

Yet, there are too many judgments, too few civil society resources, and not enough knowledge about judgments as a source for human rights advocacy. The Council of Europe institutions and information about the implementation of human rights judgments are also not adequately accessible or transparent.  

We are, therefore, confident that our pan European network that focuses on the implementation of human rights judgments will not only benefit the sharing of information and experiences amongst the members of the network. It will also improve the institutions and processes at the level of the Council of Europe charged with monitoring the implementation of human rights judgments, and contribute to the health and long-term future of the European Human Rights System.

Sincerely

Dr Başak Çalı

Polish Parliament – failed guardian of the Convention

Dominika Bychawska-Siniarska, Board Member of the Helsinki Foundation for Human Rights and Member of the EIN Steering Committee

 

The European system for the protection of human rights can only function properly if the member states of the Council of Europe (CoE) effectively execute the decisions of the European Court of Human Rights (ECtHR). This is a consequence of the subsidiarity principle, which defines relations between the Strasbourg Court and member states. According to the recommendations issued by the CoE Parliamentary Assembly in November 2011, one of the guarantees for the execution of the ECtHR judgments is parliamentary supervision of the government’s activities in this regard. Such a system exists in other countries, including the United Kingdom, The Netherlands, and Romania.

POLISH SEJM

POLISH SEJM

For a brief while, Poland joined this group of states when, in February 2014, the joint Commission of Justice and Human Rights, together with the Foreign Affairs Commission of the lower chamber of the Polish Parliament (Sejm), created a permanent sub-commission for the execution of judgments of the ECtHR. The appointment of the permanent sub-commission was a step towards making the domestic implementation process more stable and regular, and was the outcome of multiple convenings between the Sejm’s Commission of Justice and Human Rights and the Senate’s Commission of Human Rights, Rule of Law and Petitions. The sub-commission, composed of 11 MPs, was established to control the government’s actions towards the execution of judgments, such as proposals to amend laws, change governmental practices and oversee the dissemination of judgments. They were also analyzing the government’s annual report on the matter.

Unfortunately, this initiative now appears to have been a flash in the pan. Since its establishment, the sub-committee met a few times, concentrating on the election of its President, but without really starting substantive discussion about implementation problems. The lack of strong institutionalization of the sub-commission resulted in the refusal of the current Parliament (elected in October 2015) to restore it. The current Government and the Parliament ignore all international obligations and outside pressure. It disregards the opinions of the Venice Commission and the Rule of Law Procedure opened by the European Commission.

In January 2016 the Ministry of Foreign Affairs addressed the Sejm seeking to re-introduce the sub-commission, an appeal that was repeated by the Helsinki Foundation for Human Rights in February and by the Polish Ombudsman in March. None of these institutions received a reply; the sub-commission has not been established. As a result, Poland has lost the opportunity to be one of the European leaders in the execution of ECtHR judgments.

There are several arguments in favor of such a sub-commission. Firstly, it should be natural to discuss human rights in the parliament. The parliament constitutes, in a democratic state, the best forum for such discussions.

Secondly, the permanent sub-commission can effectively monitor legal and practical problems emerging from ECtHR judgments. Sometimes these issues result from the nature of the Polish judicial system, such as lengthy trials and problems with mass surveillance practiced by secret services. Sometimes they can be less deeply rooted and result from practices, such as the practice of conducting illegal searches and the abuse of force by the police.

Thirdly, parliamentary control increases the transparency of the government’s proposals for the execution of judgments. The sub-commission's meetings could have served to analyze specific problems resulting from the ECtHR’s judgments and to thus increase public awareness on such issues. Finally, the parliamentary involvement increases the legitimacy of the Strasbourg Court itself, which is crucial since the ECtHR has vital influence on the shape of legal standards in each of the Council’s member states. 

Needless to say, the mere appointment of the sub-commission was never going to be sufficient: it has to work and meet regularly, and its members have to show initiative and involvement. Taking the example of the Joint Committee on Human Rights in the British Parliament, one may notice that it deals not only with execution of specific ECtHR judgments, but also with the review of governmental practices and the drafting of laws in compliance with ECtHR rulings, such as the Human Rights Act 1998. However, such work is not performed systematically by existing parliamentary committees dealing with human rights in the Polish Parliament.

In recent years the Polish Parliament has largely succeeded in implementing decisions of the Constitutional Court. For years, numerous Constitutional Court decisions remained unexecuted and there were significant loopholes in the legal system. Coordinated efforts however resulted in positive developments. The higher chamber of the Parliament – the Senate - started to prepare draft laws aiming to implement decisions of the Constitutional Court. With respect to the execution of the ECtHR judgments, the situation is more difficult, since they usually require complex measures. Therefore, the permanent sub-committee could be an important instrument to supervise the Government's activities. 

Unfortunately, the failure of the Sejm Spokesman to respond to calls for reintroducing the sub-committee should be interpreted as lacking political will to take implementation seriously. Furthermore, the readiness of politicians to discuss the eventual establishment of a supervisory body in the Parliament is very weak. For now, the future of the parliamentary engagement in the implementation process in Poland remains uncertain, and all the achievements of the previous parliament have gone in vain.