Implementation of judgments of the European Court of Human Rights

Doc. 15742

11 April 2023

Implementation of judgments of the European Court of Human

Rights

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Constantinos EFSTATHIOU, Cyprus, Socialists, Democrats and Greens Group

Summary

The implementation of judgments of the European Court of Human Rights is a priority for the Parliamentary

Assembly and the Council of Europe. All States must implement, in good faith, and without delay, the final,

binding judgments of the European Court of Human Rights. In order to implement Court judgments in a timely

and effective manner, States must have effective national co-ordination mechanisms, with sufficient hierarchy

and resources.

The Committee of Ministers should address the Assembly annually on the progress achieved in implementing

the Court’s judgments. Projects should be undertaken to support national parliaments and parliamentarians in

driving through legislative reforms necessary to implement the Court’s judgments – and in holding

governments to account for taking timely action to implement such judgments.

The Committee of Ministers should prioritise the implementation of leading and complex cases, including

inter-State cases. It should improve the transparency of the process of implementation – in particular the

reasoning and accessibility of its decisions, interim resolutions and final resolutions, and the accessibility and

ease of navigation of the HUDOC-EXEC website. It is crucial that European citizens can understand and have

confidence in this core part of the European system for the protection of human rights, democracy and the

rule of law.

Reference to committee: Bureau decision, Reference No. 4560 of 19 March 2021.

https://pace.coe.int

Contents Page

A. Draft resolution ........................................................................................................................................ 3

B. Draft recommendation ............................................................................................................................. 6

C. Explanatory memorandum by Mr Constantinos Efstathiou, Rapporteur .................................................. 8

1. Introduction ......................................................................................................................................... 8

2. 10th report of the Assembly ................................................................................................................ 9

3. Further developments ....................................................................................................................... 10

4. Recent statistics and other data ........................................................................................................ 11

5. Interstate cases and other cases linked to post-conflict situations or unresolved conflicts ................13

5.1. Cyprus v. Turkey and cases related to the situation in the part of Cyprus where Türkiye

exercises effective control ................................................................................................................14

5.2. Georgia v. Russia ..................................................................................................................... 16

5.3. The situation in the Transnistrian region of the Republic of Moldova – the Catan and Mozer

cases ............................................................................................................................................... 17

5.4. Cases relating to the situation in Nagorno-Karabakh ................................................................18

6. Article 18 judgments, concerning abusive limitations of rights and freedoms ....................................18

6.1. Article 46(4) and failure to comply with a final judgment of the ECtHR – Arbitrary detention with

the ulterior purpose of silencing Osman Kavala and dissuading other human rights defenders ...... 19

6.2. Arbitrary detention – politically motivated violation of rights – Selahattin Demirtaş ................... 20

6.3. The Mammadli v. Azerbaijan group of Article 18 cases ............................................................ 21

7. Specific challenges, including cases revealing long-standing “systemic and structural problems”

identified by the Court’s judgments ....................................................................................................... 21

8. States having the largest numbers of cases pending implementation before the Committee of

Ministers ................................................................................................................................................24

8.1. Türkiye ......................................................................................................................................24

8.2. Romania ................................................................................................................................... 25

8.3. Ukraine ..................................................................................................................................... 27

8.4. Hungary .................................................................................................................................... 29

8.5. Azerbaijan .................................................................................................................................29

8.6. Russian Federation ...................................................................................................................30

9. Conclusions ...................................................................................................................................... 32

Appendix – Summary of the hearings held during this reporting cycle .......................................................35

Doc. 15742 Report

A. Draft resolution

1. Since its Resolution 1226 (2000), the Parliamentary Assembly has significantly contributed to the

supervision of the implementation of judgments of the European Court of Human Rights (“the Court”) by the

Committee of Ministers, given the priority it attaches to respect for human rights, democracy, and the rule of

law. It recalls that in Recommendation 2245 (2023) “The Reykjavik Summit of the Council of Europe: United

around values in the face of extraordinary challenges” it sought to further strengthen processes for the swift

implementation of Court’s judgments, including respect for interim measures, calling for the introduction of

procedure for enhanced political dialogue in cases of non-compliance and for the promotion of the role of

national parliaments, national human rights institutions and civil society in monitoring compliance with the

European Convention on Human Rights (ETS No. 5, “the Convention”) and the Court’s judgments.

2. The Assembly also recalls its Resolutions 2358(2021) 2178 (2017), 2075 (2015), 1787 (2011), 1516

(2006) and Recommendations 2110 (2017) and 2079 (2015) on the implementation of judgments of the Court,

in which it promoted national parliaments’ engagement in this process. It again underlines that the

implementation of a Court judgment, under Article 46, paragraph 1, of the Convention, may require not only

the payment of the just satisfaction awarded by the Court, but also the adoption of other individual measures

(aimed at the cessation of the violation of the Convention and the restitutio in integrum for applicants) and/or

general measures (aimed at preventing repeated violations of the Convention).

3. Since last examining this question in 2021, the Assembly notes that there has been an increase in the

number of judgments pending before the Committee of Ministers (from 5 231 at the end of 2019 to 6 256 on

1 March 2023). Having seen previous progress on reducing the backlog, it expresses concern at the current

trajectory. The Assembly welcomes any measures taken by the Committee of Ministers to make its

supervision of the implementation of Court’s judgments more efficient within the Council of Europe as well as

with national authorities. It calls upon the Committee of Ministers to undertake further work to analyse why the

number of pending cases has recently been growing and to suggest concrete steps to address this.

4. The Assembly also notes that Ukraine, Romania, Türkiye, Azerbaijan and Hungary have the highest

number of non-implemented Court judgments and still face serious structural or complex problems, some of

which have not been resolved for over ten years. Indeed these five countries, and in addition the Russian

Federation, account for over 70% of the cases pending implementation. The Assembly remains deeply

concerned over the number of cases revealing structural and complex problems pending before the

Committee of Ministers for more than five years. Along with that, the Assembly realises that the situation in

Ukraine is a complex one vis-à-vis other countries due to the Russian war of aggression and the

consequences for the Ukrainian authorities and society as a whole, and that the implementation of judgments

of the European Court of Human Rights faces specific challenges in light of the war.

5. The Assembly expresses concerns at the delays in implementing the Court's judgments and recalls that

the legal obligation for the States Parties to the Convention to implement the Court’s judgments is binding on

all branches of State authority and cannot be avoided through the invocation of technical problems or

obstacles which are due, in particular, to the lack of political will, lack of resources or national legislation,

including the constitution. The Assembly recalls that where a State’s legislation, including its constitution,

gives rise to violations of the Convention, it is incumbent on that State to interpret and, where necessary,

amend its legislation in such a way as to resolve the violations found by the European Court of Human Rights

and avoid any repetition.

6. The Assembly is gravely concerned at the slow progress towards the implementation of the Court’s

judgments delivered in interstates cases or cases showing interstate features. It calls on all States Parties to

the Convention involved in the process of implementation of such judgments to fully co-operate with the

Committee of Ministers. It further calls on member States, as well as instances of the Council of Europe, to

consider employing innovative and creative techniques and measures to seek to make progress in addressing

intractable problems in such cases.

7. The Assembly strongly calls on States Parties to the Convention to:

7.1. implement in good faith and without delay final binding judgments of the European Court of

Human Rights, in line with the clear and unambiguous obligations in Article 46, paragraph 1, of the

Convention, which are of an unconditional nature, and in full respect for the rule of law;

7.2. provide for effective domestic remedies to address violations of the Convention and establish

such remedies without undue delay where they are lacking;

Draft resolution adopted unanimously by the committee on 22 March 2023.

Doc. 15742 Report

7.3. co-operate fully with the Committee of Ministers, the Court and the Department for the Execution

the judgments of the Court as well as with other relevant Council of Europe bodies to swiftly and

effectively enable the full and efficient implementation of the judgments of the Court;

7.4. submit action plans, action reports and information on the payment of just satisfaction to the

Committee of Ministers in a timely manner and to ensure that such action plans and reports contain

sufficiently detailed information to explain the measures being taken, how they will address the issues

raised by the judgment and to set out a clear timeframe for the judgment to be implemented;

7.5. ensure that effective national co-ordination mechanisms are in place and have sufficient

hierarchy and resources to be able to implement judgments and to co-ordinate responses in an efficient

and informative manner, presenting the confirmed common position of various branches of power, and

that such co-ordination bodies have the requisite clout to be able to ensure that priority is given to any

necessary action;

7.6. strengthen the role of civil society, bar associations and national human rights institutions in the

process of implementing the Court's judgments, including through involving them in domestic planning

on how to implement a judgment, as well as through providing replies to submissions made by

applicants, national human rights institutions and non-governmental organisations under Rule 9 of the

Committee of Ministers’ Rules for the supervision of the execution of judgments and the terms of

friendly settlements;

7.7. pay particular attention to cases raising systemic, structural, endemic or complex problems

identified by the Court or the Committee of Ministers, notably those identified in the Court’s pilot

judgments or judgments with indications under Article 46 of the Convention, especially those pending

for over ten years;

7.8. refrain from adopting laws or measures that would hinder the process of implementation of the

Court’s judgments and ensure that domestic legislation strengthens domestic capacity to implement

judgments of the Court;

7.9. take full advantage of the work undertaken as part of the “Support to efficient domestic capacity

for the execution of ECtHR judgments (Phase 1)” project, which could provide good practice to assist

States in improving their domestic processes for implementing the judgments of the European Court of

Human Rights;

7.10. develop more effective structures and mechanisms for the exchange of good practice and

support each other in the execution of the judgments of the European Court of Human Rights, including

by fully supporting the work done by the Council of Europe aimed at establishing a network to this end;

7.11. increase support to Council of Europe co-operation projects to assist member States in

executing the judgments of the Court;

7.12. take into account the relevant opinions of Council of Europe expert bodies, including the

European Commission for Democracy through Law (Venice Commission) and the European Committee

for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, when taking

measures aimed at implementing the Court’s judgments;

7.13. uphold the rule of law, including by condemning statements discrediting the Court’s authority

and legitimacy;

7.14. respect interim measures indicated by the Court, in accordance with the obligations stemming

from Article 34 of the Convention;

7.15. ratify Protocol No. 16 to the Convention (CETS No. 214) as soon as possible, if they have not

already done so;

7.16. take immediate action to implement any judgments of the European Court of Human Rights in

respect of which a violation of Article 46, paragraph 1, has been found by the Court under infringement

proceedings under Article 46, paragraph 4, and in this light calls on Türkiye to immediately release the

philanthropist Osman Kavala.

8. Having regard to Recommendation 2245 (2023) “The Reykjavik Summit of the Council of Europe:

United around values in the face of extraordinary challenges”, and referring to its Resolution 1823 (2011)

“National parliaments: guarantors of human rights in Europe”, the Assembly calls on the national parliaments

of Council of Europe member States to implement the “Basic principles for parliamentary supervision of

international human rights standards”, advocated by the Assembly. Appropriate parliamentary structures are

needed to monitor compliance with international human rights obligations and to ensure that democratically

Doc. 15742 Report

elected representatives are in a position to effectively encourage and facilitate the timely and complete

implementation of the Court’s judgments. The Assembly calls on human rights or constitutional committees of

national parliaments to engage in monitoring the implementation of the Court’s judgments, including through

taking a pro-active role in finding solutions to potential frictions with the Court, by proposing necessary

legislative reforms.

9. In view of the need to speed up implementation of the Court's judgments, the Assembly resolves to

remain seized of this matter and to continue to give it priority.

10. The Assembly’s work could include holding targeted events at the parliamentary level, such as

conferences, colloquies to help bolster domestic institutional capacity and to focus political attention on the

legislative, structural or other reforms needed to implement the Court’s judgments, including specific cases.

Priority should be given to those countries or cases where dialogue at the level of parliamentarians might be

most effective to encourage the timely implementation of the Court’s judgments and in particular to drive

through the necessary legislative reforms.

11. Finally, in order to help resolve the long-standing systemic and structural problems identified in the

implementation of the Court’s judgments, the Assembly resolves to step up its work on thematic reports

focussing on such problems in order to identify tools to resolve specific systemic or structural issues.

Doc. 15742 Report

B. Draft recommendation

1. Referring to its Resolution ... (2023) “Implementation of judgments of the European Court of Human

Rights”, the Parliamentary Assembly welcomes the measures taken by the Committee of Ministers to fulfil its

tasks arising under Article 46, paragraph 2, of the European Convention on Human Rights (ETS No. 5, “the

Convention”) and to improve the efficiency of its supervision of the implementation of the judgments of the

Court.

2. As the implementation of the Court’s judgments still presents many challenges, the Assembly

recommends that the Committee of Ministers:

2.1. continue to use all available means (including interim resolutions) to fulfil its tasks arising under

Article 46, paragraph 2, of the Convention;

2.2. undertake further work to develop a clear toolkit for assisting co-operation as well as for

increasing pressure on States, in order to encourage them to take timely action to implement the

judgments of the European Court of Human Rights; this toolkit should include a range of different

measures and techniques that could be potentially deployed, as required, in different situations

depending on the seriousness and complexity of the issue as well as on the type of barriers that might

exist to timely and effective implementation; such a toolkit should be an evolving document to include

new techniques and best practice as experience develops; a creative approach should be applied in

terms of tools and bodies that might assist in these endeavours;

2.3. increase the focus and priority for implementing leading cases; noting in particular that whilst

significant progress has been made in tackling repetitive cases – which has improved the overall

statistics – this is no substitute for addressing the underlying root causes of a series of violations,

through implementing the leading cases; to this end more of a focus should be given to analysing and

publicising the barriers to implementing leading cases as well as deploying the necessary tools to

implement them successfully;

2.4. ensure that priority is given to tackling pockets of resistance and particularly complex cases,

including by providing guidance and assistance to domestic authorities in the execution process to

address the root causes underlying a violation;

2.5. take action to ensure that all States have adequate, effective national co-ordination

mechanisms, with sufficient hierarchy and resources to be able to implement judgments; this could

include the provision of expertise on the organisation of the workload and any reforms required to

ensure the correct levels of resourcing and hierarchy in order to effectively co-ordinate the

implementation of the judgments of the European Court of Human Rights;

2.6. consider developing new mechanisms to motivate and, if need be, sanction States that fail to

take timely action, including the supply of information, especially where delays or obstacles in execution

were readily avoidable, for example by more effective co-ordination; this could include using financing

options from the Council of Europe Development Bank to help to fund projects relevant to the

implementation of the Convention rights;

2.7. use the procedures provided for in Article 46, paragraphs 3 to 5, of the Convention, in the event

of implementation of a judgment encountering strong resistance from the respondent State; however,

this should continue to be done sparingly and in exceptional circumstances;

2.8. having regard to Recommendation 2245 (2023) “The Reykjavik Summit of the Council of

Europe: United around values in the face of extraordinary challenges”, develop further the options

available to the Committee of Ministers, and indeed the Council of Europe as a whole, following a

judgment of the Court under Article 46, paragraph 4, with the aim of ensuring respect for the rule of law

and the Convention system; such work should include careful consideration of the potential role for the

Assembly within such mechanisms, such as through the complementary joint procedure;

2.9. ensure that thematic debates on the execution of the Court’s judgments, are carefully targeted

with the relevant participation, including carefully selected external experts, where appropriate, in order

to have a meaningful debate on the topic with openness to ideas for resolving difficult issues;

2.10. continue to improve synergies and make best use of all available resources and organs within

the Council of Europe, in particular the Court and its Registry, the Assembly, the Secretary General, the

Commissioner for Human Rights, the Steering Committee for Human Rights, the European

Draft recommendation adopted unanimously by the committee on 22 March 2023.

Doc. 15742 Report

Commission for Democracy through Law (Venice Commission), the European Committee for the

Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the Human Rights

Trust Fund;

2.11. ensure adequate resources for the Department for the Execution of Judgments of the European

Court of Human Rights, in light of the significant workload of cases, the necessity of ensuring its strong

Convention and country-specific expertise in order to provide assistance to the Committee of Ministers

and the member States within its mandate, and the importance of the timely implementation of

judgments for the Organisation;

2.12. further elaborate the modalities of its strategy for ensuring the continued supervision over the

execution of judgments pending implementation in respect of the Russian Federation, as well as those

to be adopted in the future by the Court, within the limits of its jurisdiction;

2.13. develop structured processes to regularly inform the Assembly about judgments of the Court

whose implementation reveals complex or structural problems and requires legislative action;

2.14. engage in a process of dialogue with the Assembly to ensure that the Assembly and the

rapporteur for the implementation of the judgments of the European Court of Human Rights can be in a

position to facilitate, as best possible, the work of the Department for the Execution of Judgments and

the Committee of Ministers, for example by organising conferences and exchanges with national

parliaments, where this could be useful to bolster domestic institutional capacity for implementing

judgments or where political engagement might be helpful, such as where legislative or other significant

reform is needed to address a judgment;

2.15. as part of this process of dialogue with the Assembly, establish a yearly communication of the

Committee of Ministers to the Assembly during a part-session, to set out the progress achieved in the

implementation of leading and other important cases; this could be similar to the addresses of the

Commissioner for Human Rights to the Assembly when presenting the his/her Annual Report;

2.16. to this end, pilot the organisation of country-specific meetings between the Department for the

Execution of Judgments and Assembly members during the Assembly’s part-sessions on how best to

improve the implementation of judgments within a given country; such meetings could be with a view to

an ensuing country visit involving parliamentarians to improve the national mechanisms for the

implementation of judgments as well as democratic engagement in supporting such measures;

2.17. continue to take measures aimed at ensuring greater transparency of the process of supervision

of the implementation of the Court’s judgments and a greater role for the Assembly, the applicants, civil

society and national human rights institutions in this process, including by improving the accessibility of

information on the status of the implementation of judgments on the HUDOC-EXEC website;

2.18. ensure that all interim and final resolutions contain clear, specific reasoning to justify closing the

supervision of a case (or elements of a case), in accordance with transparent criteria, in order to

improve the transparency and accountability of decision making, so that European citizens can

understand and have confidence in this core part of the European system of protecting human rights,

democracy and the rule of law;

2.19. elaborate a process for the supervision of the respect of interim measures indicated by the

Court.

Doc. 15742 Report

C. Explanatory memorandum by Mr Constantinos Efstathiou, Rapporteur

1. Introduction

1. Since 2000, the Parliamentary Assembly has taken a close interest in the implementation of the

judgments of the European Court of Human Rights (hereinafter “the Court” or “ECtHR”).

Whilst supervising

the execution by the Council of Europe member States of ECtHR judgments is primarily the responsibility of

the Committee of Ministers in accordance with Article 46(2) of the European Convention on Human Rights

(ETS No. 5, “the Convention”), the Assembly has shown that the monitoring it carries out in this field and the

political influence it exerts can provide great support for the action of the Committee of Ministers and therefore

present an added value. In particular, the Assembly has systematically called on national parliaments to be

more proactive in the process of implementing the Court’s judgments.

2. In its latest relevant resolution (Resolution 2358 (2021)), the Assembly decided to “remain seized of this

matter and to continue to give it priority”.

Consequently, at its meeting on 19 April 2021, the Committee on

Legal Affairs and Human Rights appointed me again as the sixth rapporteur on this subject, having previously

been appointed for the 10th report following Mr Venizelos’s departure from the Assembly. The previous

rapporteurs were Messrs Erik Jurgens (Netherlands, SOC), Christos Pourgourides (Cyprus, EPP/CD), Klaas

de Vries (Netherlands, SOC), Pierre-Yves Le Borgn’ (France, SOC) and Evangelos Venizelos (Greece, SOC).

This report will be the 11th on this subject.

3. With regard to the parameters of this 11th report, as I set out in my introductory memorandum from

October 2021, I focussed on the implementation of ECtHR judgments in those States having the highest

number of cases pending before the Committee of Ministers; and the implementation of the most problematic

cases, including interstate cases and Article 18 judgments. Given that the Russian Federation remains bound

to respect the final judgments of the ECtHR against it notwithstanding its exclusion from the Council of Europe

in 2022, I continued to include Russian cases in this report which are examined in a separate section.

4. The committee held two hearings with experts. The first one focussed on the implementation of

interstate cases and took place on 7 December 2021 with the participation of Ms Dimitrina Lilovska, Head of

division ad interim, Department for the Execution of Judgments of the European Court of Human Rights,

Council of Europe, and Dr Isabella Risini, Senior research associate at Ruhr-University Bochum, visiting

professor at Augsburg University, Germany. The second hearing focussed on the implementation of Article 18

judgments and was held during the committee meeting on 14 November 2022 with the participation of

Ms Clare Ovey, Head of the Department for the Execution of Judgments of the European Court of Human

Rights, Council of Europe; and Dr Başak Çalı, Professor of International Law, Co-director of the Centre for

Fundamental Rights, Hertie School, Berlin.

5. In November 2022, I undertook two country visits, to Azerbaijan and to Romania. I am very grateful to

the authorities of those two countries for facilitating such useful and interesting visits. The mission reports of

these visits have been declassified and are available to the public.

These visits enabled me to understand

the different types of challenges involved in grappling with the implementation of human rights judgements

raising complex or structural issues, particularly when faced with a significant caseload. In particular, the visits

also enabled a focus on domestic structures that can help to facilitate the timely and efficient execution of the

judgments of the Court.

6. I also followed the approach of the 10th report by holding exchanges of views with chairpersons of

national delegations of three countries with a significant number of cases pending implementation. During its

meeting, on 25 January 2023, the committee held an exchange of views regarding Hungary with the

participation of Mr Barna Zsigmond, Vice-Chairperson of the Hungarian delegation to the Assembly and

Mr Dávid Oravecz, Deputy to the Permanent Representative of Hungary to the Council of Europe. It also held

an exchange of views regarding Türkiye with the participation of Mr Ahmet Yıldız, Chairperson of the Turkish

delegation to the Assembly, and Mr Hacı Ali Açıkgül, Head of the Department of Human Rights in the Turkish

The first report was approved by the Committee on Legal Affairs and Human Rights on 27 June 2000; Doc. 8808,

rapporteur: Mr Erik Jurgens (Netherlands, SOC). On the basis of this report, the Assembly adopted Resolution 1226

(2000). Since 2000, the Assembly has adopted ten resolutions and nine recommendations relating to the implementation

of the judgments of the European Court of Human Rights.

5. Paragraph 12 of the resolution.

6. AS/Jur(2023)02 “The Implementation of judgments of the European Court of Human Rights – 11

report: Information

note following the rapporteurs visit to Romania”, November 2022; AS/Jur(2023)01 “The Implementation of judgments of

the European Court of Human Rights – 11

report: Information note following the rapporteurs visit to Azerbaijan”,

November 2022.

Doc. 15742 Report

Ministry of Justice. It then held an exchange of views relating to Ukraine, with the participation of Ms Mariia

Mezentseva, Chairperson of the Ukrainian delegation to the Assembly, Ms Iryna Mudra, Vice-Minister of

Justice; and Ms Marharyta Sokorenko, Government Agent before the European Court of Human Rights. The

information documents prepared for these exchanges of views have been declassified and are available to the

public.

2. 10th report of the Assembly

7. The Assembly’s 10th report on the implementation of the judgments of the Court

noted the impact of

the reform of the system of the European Convention on Human Rights following the “Interlaken process”,

started in 2010: at the end of 2019, when that report was prepared, the Committee of Ministers was

supervising the implementation of some 5 000 judgments, while at the end of 2016, when Mr Le Borgn’ was

preparing the 9th report, it was supervising nearly 10 000 judgments.

However, current figures have again

increased, with information suggesting 6 256 judgments pending implementation on 1 March 2023.

8. The 10th report used the same working methods as the reports by my predecessors, Messrs Klaas de

Vries, Pierre-Yves Le Borgn’ and Evangelos Venizelos, who focused on the nine or ten States with the largest

number of judgments pending before the Committee of Ministers. Therefore, I analysed in detail the

implementation of the most stubbornly unimplemented judgments against the Russian Federation, Ukraine,

Romania, Türkiye, Azerbaijan, Hungary, Italy, Bulgaria, and the Republic of Moldova. I also examined

judgments whose implementation entailed particular difficulties due to their political or legal complexity, that

one of my predecessors called “pockets of resistance”.

9. In its Resolution 2358 (2021), based on the 10th report, the Assembly welcomed a constant reduction

in the number of ECtHR judgments pending before the Committee of Ministers and the effects of the

Interlaken process. It also welcomed the measures taken by the Committee of Ministers to make its

supervision of the implementation of Court judgments more efficient, and the synergies that had developed

within the Council of Europe as well as between its bodies and national authorities.

Nevertheless, the

Assembly remained deeply concerned over the number of persisting cases revealing structural problems that

had been pending before the Committee of Ministers for more than five years and noted, as regards in

particular the ten countries mentioned in the 10th report, that some of those problems remained unresolved

for over ten years. According to the Assembly, “this might be due to deeply rooted problems such as

persistent prejudice against certain groups in society, inadequate management at national level, a lack of

necessary resources or political will or even open disagreement with the Court’s judgment”.

The Assembly

was also “particularly concerned” by the “increasing legal and political difficulties” relating to the

implementation of the Court’s judgments and noted that “any national legislative or administrative measure

should not add further obstacles to this process and that member States were not entitled to legitimise the

possibility of not implementing the Court’s decisions”.

In particular, “the invocation of technical problems or

obstacles which are due, in particular, to the lack of political will, lack of resources or changes in national

legislation, including the constitution”, should be avoided.

Moreover, the Assembly was concerned about the

difficulties surrounding the implementation of judgments in interstate cases or individual cases displaying

interstate features. Condemning once again the delays in the implementation of the Court’s judgments, it

reiterated its call on Council of Europe member States to implement the Court's judgments swiftly, effectively

and fully and made a number of concrete recommendations in this respect (in particular by co-operating with

the Committee of Ministers and relevant Council of Europe bodies, submitting action plans, providing effective

remedies at national level, providing sufficient resources to relevant national stakeholders, reinforcing the role

of civil society and instituting parliamentary structures to monitor compliance with the Convention).

The

“The Implementation of judgments of the European Court of Human Rights – 11

report: Information notes in

preparation of a hearing in relation to Türkiye (AS/Jur(2023)06), Ukraine (AS/Jur(2023)04), and Hungary (AS/Jur(2023)

03)”.

8. Adopted by the Committee on Legal Affairs and Human Rights at its meeting on 5 June 2020, Doc. 15123 of 15 July

2020. See also Addendum to the report, Doc. 15123 Add. of 26 November 2020.

9. Report on “The implementation of judgments of the European Court of Human Rights”, Committee on Legal Affairs

and Human Rights, rapporteur: M. Pierre-Yves Le Borgn’ (France, SOC), Doc. 14340 of 12 June 2017, paragraph 6.

10. HUDOC EXEC website.

11. 10th report, Section 4.

12. Paragraph 3 of the resolution.

13. Paragraph 4 of the resolution.

14. Paragraph 5 of the resolution.

15. Paragraph 7 of the resolution.

16. Paragraphs 6, 7, 8 and 10 of the resolution.

Doc. 15742 Report

Assembly called on Council of Europe member States which had not yet ratified Protocols Nos. 15 (CETS No.

213) and 16 (CETS No. 214) to the Convention to do so rapidly.

It also called on the Russian Federation to

change the recent amendments to Articles 79 and 125.5.b of the Constitution in light of the Opinion No.

981/2020 of 18 June 2020 of the European Commission for Democracy through Law (Venice Commission)

“on draft amendments to the Constitution of the Russian Federation (as signed by the President of the

Russian Federation on 14 March 2020) related to the execution in the Russian Federation of judgments by the

European Court of Human Rights”.

10. In Recommendation 2193 (2021), also based on the 10th report, the Assembly welcomed the

measures taken by the Committee of Ministers to fulfil its tasks arising under Article 46(2) of the Convention

and improve the efficiency of its supervision of the implementation of judgments of the Court. It made a

number of further recommendations to the Committee of Ministers (such as to adopt interim resolutions, to

use the procedures under Article 46(3) to (5) of the Convention, to give priority to leading cases pending over

five years, to transmit leading cases pending for over ten years to enhanced supervision procedure, to ensure

greater transparency of its supervision process and a greater role for applicants, to organise thematic

debates, and to continue to develop synergies between various Council of Europe stakeholders). In particular,

the Assembly recommended that the Committee of Ministers regularly inform it about those judgments whose

implementation revealed “complex or structural problems” and required legislative action and that the

Committee of Ministers finalise its evaluation of the “Interlaken process”.

3. Further developments

11. In its reply to the Assembly’s Recommendation 2193 (2021),

the Committee of Ministers indicated

that it had finalised its assessment of the “Interlaken process” in its decision on “Securing the long-term

effectiveness of the system of the European Convention on Human Rights”, adopted at its 130th Ministerial

Session in Athens on 4 November 2020. In that decision, the Committee of Ministers had welcomed the work

undertaken by the States Parties to the Convention and the effective measures adopted, in particular by the

Court. It had concluded that “(…) whilst no comprehensive reform of the Convention machinery [was] now

needed, further efforts should be pursued by the Council of Europe as a whole to ensure that the Convention

system can continue to respond effectively to the numerous human rights challenges Europe faces, including

through the efficient response of the Court to pending applications”.

The Committee of Ministers identified a

number of steps to be taken in order to pursue those further efforts: enhancing the efficiency of the process of

supervision of execution of the Court’s judgments, particularly its Human Rights meetings, by further

developing its working methods and the means available to it; encouraging the development of enhanced

synergy with the Court as well as with the other relevant Council of Europe stakeholders (in particular with the

Assembly and the Commissioner for Human Rights); and encouraging States Parties to consider establishing,

where not already done so, or strengthening effective, pluralist and independent national human rights

institutions (NHRIs).

Most of these measures had already been proposed in the 10th report as adopted by

the Committee on Legal Affairs and Human Rights (AS/Jur) on 5 June 2020 and later endorsed by the

Assembly in its Recommendation 2193 (2021).

12. Further, in its decisions adopted at the 130th Ministerial Session in November 2020, the Committee of

Ministers urged all member States to ensure that Recommendation CM/Rec(2008)2 on “efficient domestic

capacity for rapid execution of judgments of the European Court of Human Rights” be given full effect.

stressed in the 14th Annual Report of the Committee of Ministers entitled “Supervision of the Execution of

Judgments and Decisions of the European Court of Human Rights 2020” (“Annual Report 2020”), the

Committee of Ministers’ renewed interest in the issue of the domestic capacity for rapid and efficient execution

of the Court’s judgments is related to two main challenges identified in practice: “the status and resources of

the national co-ordinator” (namely the Government Agent in the majority of Council of Europe member States)

and the co-ordinator’s capacity in identifying execution measures and promptly drawing up action plans and

reports, in synergy with competent national authorities (…).”

This is particularly necessary in cases

revealing long-standing systemic and structural problems.

17.

Paragraph 11 of the resolution.

18. Paragraph 9 of the resolution.

19. Paragraph 2 of the recommendation.

20. Adopted at the 1407th meeting of the Ministers’ Deputies (16 June 2021), Doc. 15324 of 21 June 2021.

21. Ibid., paragraph 3.

22. Ibid., paragraph 4.

23. See paragraphs 1, 2.5 and 2.8 of the recommendation.

24. CM/Del/Dec(2020)130/4, “4. Securing the long-term effectiveness of the system of the European Convention on

Human Rights”, item 8.

Doc. 15742 Report

13. As indicated in its reply to the Assembly Recommendation 2193 (2021), at its 131st Ministerial Session

(21 May 2021), the Committee of Ministers stressed the importance of securing the long-term effectiveness of

the Convention system “in challenging times for the rule of law and human rights in democratic societies” as

well as the importance of an efficient supervision of the execution of judgments “in order to ensure the long-

term sustainability and credibility of the Convention system”. It instructed the Ministers’ Deputies “to examine

whether and how to enhance the tools available to the Committee to supervise cases of non-execution or

persistent refusal to execute the final judgments of the Court” and to examine questions relating to interstate

disputes”.

14. Moreover, the German Chairmanship of the Committee of Ministers (November 2020 – May 2021) held

a series of conferences and seminars devoted to the issue of implementation of the Court’s judgments and

the Court’s interaction with Council of Europe member States’ constitutional courts.

15. Further, Council of Europe co-operation projects have also been useful in contributing to the execution

of ECtHR judgments by supporting member States in improving relevant legislation, finding solutions to

particularly challenging execution issues, and building institutional capacity to develop the institutions

necessary for effective and full implementation of ECtHR judgments. In this context, it is worth highlighting the

ongoing work on a multilateral project entitled “Support to efficient domestic capacity for the execution of

ECtHR judgments (Phase 1)”. This project aims to support member States in reinforcing their capacity for full,

effective and prompt execution of ECtHR judgments. Given the findings from the hearings and country visits

undertaken during this report, I strongly welcome this initiative and urge member States to fully make use of it.

4. Recent statistics and other data

16. According to the Annual Report 2020, as of 31 December 2020, 5 233 cases were pending before the

Committee of Ministers (at different stages of execution), one of the lowest figures since 2006.

The following

ten countries had the largest number of pending cases (from the highest to the lowest number): Russian

Federation (1 789),Türkiye (624), Ukraine (567), Romania (347), Hungary (276), Azerbaijan (235), Italy (184),

Bulgaria (166), the Republic of Moldova (154) and Greece (120); they were followed by Poland (89), Croatia

(73) and Georgia (53). The remaining Council of Europe member States had fewer than fifty cases pending

before the Committee of Ministers.

17. According to the Annual Report 2021, as of 31 December 2021, there was a similarly low number of

cases pending before the Committee of Ministers (at different stages of execution) – 5 533.

However there

had been a significant increase (by 40%) of judgments delivered by the Court. The following ten countries had

the largest number of pending cases (from the highest to the lowest number): Russian Federation (1 942),

Ukraine (638), Türkiye (510), Romania (409), Azerbaijan (271), Hungary (265), Italy (170), the Republic of

Moldova (170), Bulgaria (164), and Poland (97); they were followed by Greece (93), Croatia (79), Serbia (76),

the Slovak Republic (63), Georgia (63), and Armenia (50). The number of States having more than 50

pending judgments therefore increased from 13 in 2020 to 16 in 2021. In this report, I shall focus in particular

on the top six countries, which together have 73% of all judgments pending execution as of 31 December

2021.

18. It is also interesting to note the number of applications pending before the Court, whose statistics give a

slightly different impression than that given by those of the Committee of Ministers. As of 31 December 2020,

more than half of the approximately 62 000 applications pending before the Court came from the three

following States: the Russian Federation (22%), Türkiye (19%) and Ukraine (16.8%). They were followed by

Romania (12.2%), Italy (5.6%), Azerbaijan (3.3%), Serbia (2.8%), Armenia (2.3%), Poland (1.9%) and the

Republic of Moldova (1.7%). As of 31 December 2022, this ranking has only slightly changed with an increase

to 74 650 pending applications: applications against Türkiye increasing to 26.9% of the overall number, those

25.

Annual Report 2020, pp. 26-27. These challenges had been identified by the Steering Committee for Human Rights

“Guide to good practice on the implementation of Recommendation (2008)2 of the Committee of Ministers on efficient

domestic capacity for rapid execution of judgments of the European Court of Human Rights”, 2017.

26. Doc. 15324 of 21 June 2021, paragraph 5.

27. Annual Report 2020, p. 8.

28. Annual Report 2020, pp. 12 and 37. In 2019, this figure was almost the same – 5 231, while in 2006 – 5 523 and in

2005 – 4 322. The report dates from March 2021.

29. Annual Report 2021, pp. 11 and 37.

30. The Annual Report 2022, issued after this explanatory memorandum was drafted, shows 6 081 cases pending

execution and that the following ten countries have the largest number of pending cases: Russian Federation (2 352),

Ukraine (716), Romania (509), Türkiye (480), Azerbaijan (285), Hungary (219), Italy (187), Bulgaria (182), Republic of

Moldova (153) and Poland (125).

Doc. 15742 Report

against the Russian Federation amounting to 22.4%, and those against Ukraine to 13.9%, thus exceeding

60% of the total number of pending applications between them.

They were followed by: Romania (6.4%),

Italy (4.8%), Greece (3.8%), Poland (3.3%), Azerbaijan (2.9%), Serbia (2.6%), and Armenia (1.7%) (the

remaining 37 States represented 11.3% of the overall number of pending applications).

These statistics,

which concern applications on which the Court has not yet ruled, often illustrate the extent of structural

problems at national level – reluctance in implementation and/or lack of political will – problems which should

have been resolved in the context of the execution of previous Court judgments.

Indeed, the majority of

States having the highest number of unimplemented judgments were also amongst those States having the

highest number of applications pending before the Court thereby revealing resistance to the implementation of

Court judgments (currently including Türkiye, the Russian Federation, Ukraine, Romania, Italy, Azerbaijan and

Poland).

19. Out of the 5 533 cases pending before the Committee of Ministers at the end of 2021, 1 300 were

“leading cases”, namely cases identified as revealing new structural and/or systemic problems, identified

either by the Court or the Committee of Ministers

(a very slight increase from previous years). Out of the

1 300 leading cases, 343 were under “enhanced supervision” of the Committee of Ministers, 897 were under

“standard supervision”, and 60 were awaiting classification. As concerns the length of the execution process

for leading cases, 301 had been pending for less than two years, 291 for between two and five years and 648

for more than five years.

20. As regards leading cases under “enhanced supervision”, these concerned mainly actions of security

forces (12%), lawfulness of detention and related issues (10%), specific situations involving the right to life

and prohibition of ill-treatment (8%), conditions of detention and medical care (8%), length of judicial

proceedings (8%), other interferences with property rights (4%), enforcement of domestic judicial decisions

(3%), lawfulness of expulsion or extradition (4%), freedom of assembly and association (4%), and freedom of

expression (5%).

Also, 78% of the leading cases concerned either the Russian Federation (16%), Ukraine

(15%), Türkiye (11%), Romania (10%), Italy (7%), Azerbaijan (6%), Bulgaria (6%), Hungary (4%), or Poland

(3%).

21. In 2021, the Committee of Ministers closed 1 122 cases (including 170 “leading” cases, out of which 11

had been under “enhanced supervision”) following the adoption by respondent States of individual measures

and a wide range of legislative and other general measures.

22. As stressed in the Annual Reports of 2020 and 2021, significant progress has been achieved with the

closure of the issue of individual measures in 2020 in the three cases against Azerbaijan concerning abusive

arrests and detention (in the former group of cases Ilgar Mammadov

) as well as the judgments of the

Supreme Court of Azerbaijan in November 2021 quashing the convictions of a further four applicants in the

Mammadli group of cases.

23. For 2020, the Annual Report welcomed the closure of the case Baralija v. Bosnia and Herzegovina

concerning voting rights in local elections.

For 2021, the Annual Report in particular noted positive

developments where a number of respondent States adopted measures, including legislative measures, in

order to execute the Court’s judgments, such as the amendment of the Judicial Code in Belgium enhancing

31.

Pending applications.

32. Pending applications.

33. Doc. 14340, op. cit., paragraph 7.

34. Annual Report 2021.

35. The Annual Report 2022, issued after this explanatory memorandum was drafted, shows that out of 6 081 cases

pending execution, 1 229 were leading cases, of which 367 under “enhanced supervision”, 904 under “standard

supervision”, and 28 awaiting classification.

36. Annual Report 2021, p. 62.

37. The Annual Report 2022, issued after this explanatory memorandum was drafted, shows 880 cases as having been

closed during 2022, including 200 leading cases, of which 18 had been under the enhanced supervision.

38. Application No.15172/13, judgment of 22 May 2014. By Final Resolution CM/ResDH(2020)178 of 3 September 2020,

the Committee of Ministers decided to close this case as well as that of Rasul Jafarov. In December 2020, it decided to

close the examination of individual measures in the case of Natig Jafarov, see decision CM/Del/Dec(2020)1390/H46-2 of 3

December 2020. The general measures continue to be examined within the framework of the group of cases Mammadli v.

Azerbaijan (Application No. 47145/14, judgment of 19 April 2018).

39. Annual Report 2021, p. 12.

40. Application No. 30100/18, judgment of 29 October 2019. The Committee of Ministers closed the examination of this

case by Resolution CM/ResDH(2020)240 of 1 December 2020.

41. Annual Report 2020, p. 12. For major advances in other cases examined by the Committee of Ministers, see Annual

Report 2020, pp. 24-26.

Doc. 15742 Report

freedom of religion in courtrooms; adoption of a new law in France introducing a judicial preventive remedy

concerning inadequate conditions of detention (J.M.B. and Others v. France); statutory and case law

developments in Italy enhancing safeguards of administrative detention of migrants in initial reception centres

(Khalifa and Others v. Italy); the Italian contaminated blood compensation payments case (M.C. and Others v.

Italy); measures taken by Lithuania to improve investigations into hate crimes and hate speech, notably

against LGBTI persons (Beizaras and Levickas v. Lithuania); steps taken in relation to defamation laws in

Ukraine (Siryk v. Ukraine); and measures taken in relation to medical negligence and healthcare in Türkiye

(Oyal v. Turkey, Şentürk v. Turkey, Asiye Genç v. Turkey and Zafer Öztürk v. Turkey).

24. However, the Annual Report 2021 noted continuing challenges for the execution of judgments, such as

an increasing number of new judgments from the Court, as well as serious delays in the submission of

information by member States that is vital for cases to be closed (for example action plans, action reports and

information on the payment of just satisfaction).

25. The Annual Reports of 2020 and 2021 revealed an increase in co-operation between the Committee of

Ministers on the one hand, and civil society and national human rights institutions (NHRIs) on the other. In

2021, the Committee of Ministers received an unprecedented number of submissions from NGOs/NHRIs: 206

communications concerning 27 Council of Europe member States (compared to 133 in 2019 concerning 24

member States).

Moreover, 2020 saw the first ever submission by the Council of Europe Commissioner for

Human Rights,

swiftly followed by four more in 2020

and a further two in 2022.

This possibility had been

added to Rule 9 of the Ministers’ Deputies’ Rules for the supervision of the execution of judgments and of the

terms of friendly settlements on 18 January 2017.

As the Commissioner for Human Rights conducts regular

monitoring of the human rights situation in Council of Europe member States, these communications are

particularly valuable.

26. As stressed in the Annual Report 2020, three categories of ECtHR judgments pose particular

challenges; taken together, these categories represented approximately 53% of the cases which were

examined by the Committee of Ministers during its Human Rights (DH) meetings in 2020.

Given the

importance of these categories of cases, I have focussed on these during my work. They are:

- Interstate cases and other cases linked to post-conflict situations or unresolved conflicts;

- Article 18 judgments,

concerning abusive limitations of rights and freedoms;

- cases revealing long-standing “systemic and structural problems” identified by the Court’s judgments,

or a lack of will and culture to abide by its judgments.

5. Interstate cases and other cases linked to post-conflict situations or unresolved conflicts

27. Whether cases originate in individual or interstate applications, the implementation of interstate cases

or cases linked to post-conflict situations or unresolved conflicts in general takes time and requires a

“concerted engagement” by the Committee of Ministers and its Secretariat, as well as the member States

concerned. This process can be difficult due to the “prominent political dimensions at national or international

42.

Annual Report 2021, pp. 12-15.

43. The Annual Report 2022, issued after this explanatory memorandum was drafted, shows similar challenges and

records progress in the closure of cases notably relating to: effective investigations into war crimes during the Croatian

Homeland War (1991-1995); lawfulness of judicial appointments to the Icelandic Court of Appeal; and elimination of

discriminatory provisions relating to children’s surnames in Italy.

44. Annual Report 2021, p. 30.

45. In the cases Tysiąc v. Poland, R. R. v. Poland, and P. and S. v. Poland, concerning restrictions in access to lawful

abortion.

46. In the cases: Kavala v. Turkey (concerning the detention of the applicant, a prominent civil activist, in violation of

Articles 5 and 18 of the Convention)

, Bălșan v. Romania (concerning violation of the prohibition of torture and of inhuman

and degrading treatment), Yordanova and others v. Bulgaria (forced eviction of Roma) and D.H. and Others v. the Czech

Republic (discrimination in the enjoyment of Roma children’s right to education). See here for the list of those

communications.

47. In the cases: McKerr and Others v. the United Kingdom (concerning several shortcomings in the investigation of

deaths during the Troubles in Northern Ireland: see the communication) and Ilias and Ahmed v. Hungary (concerning the

expulsion of applicants from Hungary to Serbia without carrying out a thorough examination of the risk of ill-treatment: see

the communication).

48. By a decision adopted at the 1275th meeting, CM/Del/Dec(2017)1275/4.1.

49. Annual Report 2020, p. 12.

50. Article 18 of the Convention: “The restrictions permitted under this Convention to the said rights and freedoms shall

not be applied for any purpose other than those for which they have been prescribed”.

Doc. 15742 Report

level and the fact that they are linked to traumatic armed violence requiring a long period of healing”.

In this

context, the Annual Report 2020 mentions as a “success story” the closure (partial or full) of the Skendžić and

Krznarić v. Croatia

group, concerning ineffective investigations into war crimes, and the Sanader v.

Croatia

case concerning conviction in absentia for war crimes in Croatia. However, a number of challenging

cases remain.

28. It should be noted in this context that the number of interstate applications lodged before the Court has

recently significantly increased and therefore one can anticipate interstate cases posing a challenge for the

implementation of judgments for the years to come.

There are currently 19 interstate applications pending

before the Court, 12 of which have been lodged since 2020.

Many of these involve different cases featuring

the same countries.

To put this in context, the Court and the former Commission only ever completed 25

interstate cases (including those struck off the list).

Whilst pending applications will not necessarily result in

judgments requiring implementation by a State, or supervision by the Committee of Ministers, one can

nevertheless surmise that given the growth in such cases it would be prudent for the Council of Europe to

develop tools for dealing with interstate cases and for facilitating the implementation of the relevant

judgments.

29. In the hearing on 7 December 2021 (see the summary in the Appendix), the challenges posed by

interstate cases were clear, as well as the importance of perseverance and a deeper understanding that as

long as there are unresolved conflicts between member States, interstate cases will remain and their

judgments will remain unimplemented precisely because of a lack of political will. Europe must become a

space of peace and security free from interstate disputes and conflicts and greater thought should perhaps be

given to developing the Council of Europe’s focus on these challenges. Numerous individual applications are

linked to armed conflicts, and it is therefore important to cover such cases as well and not to lose sight of the

individuals affected by a conflict situation. The below cases illustrate the sorts of challenges in dealing with

interstates cases – Cyprus v. Turkey; Georgia v. Russia; Catan and Others v. Moldova and Russia; Mozer v.

Moldova and Russia; and cases relating to the situation in Nagorno-Karabakh.

5.1. Cyprus v. Turkey and cases related to the situation in the part of Cyprus where Türkiye

exercises effective control

30. In the 2001 Cyprus v. Turkey

judgment, the Court found multiple violations of the Convention in

connection with the situation in the part of Cyprus where Türkiye exercises effective control according to the

Court’s findings, since Türkiye’s 1974 military intervention in Cyprus. The Turkish authorities have remedied a

number of violations

but the Committee of Ministers’ supervision focuses mainly on issues concerning

51.

Annual Report 2020, pp. 12 and 13.

52. Application No. 16212/08, judgment of 20 January 2011.

53. Application No. 66408/12, judgment of 12 February 2015. Its examination was closed by the Committee of Ministers’

Resolution CM/ResDH(2020)250 of 3 December 2020.

54. The website of the ECtHR contains a recent list of interstate cases.

55. Liechtenstein v. the Czech Republic (No. 35738/20); Armenia v. Azerbaijan (No. 42521/20); Armenia v. Turkey (No.

43517/20); Azerbaijan v. Armenia (No. 47319/20); Ukraine v. Russian Federation (IX) (No. 10691/21); Russia v. Ukraine

(No. 36958/21); Armenia v. Azerbaijan (II) (No. 33412/21); Armenia v. Azerbaijan (III) (No. 42445/21); Armenia v.

Azerbaijan (IV) (No. 15389/22); Azerbaijan v. Armenia (II) (No. 39912/22); Ukraine v. Russian Federation (X) (No.

11055/22); the Netherlands v. Russia (No. 28525/20).

56. Georgia v. Russian Federation (II) (Just satisfaction) (No. 38263/08); Ukraine v. Russian Federation (re Crimea)

(No. 20958/14); Ukraine v. Russian Federation (VII) (No. 38334/18); Ukraine and the Netherlands v. Russian Federation

(nos. 8019/16, 43800/14, 28525/20 and 11055/22); Georgia v. Russian Federation (IV) (No. 39611/18); Ukraine v.

Russian Federation (VIII) (No. 55855/18); Armenia v. Azerbaijan (No. 42521/20); Armenia v. Turkey (No. 43517/20);

Azerbaijan v. Armenia (No. 47319/20); Ukraine v. Russian Federation (IX) (No. 10691/21); Russia v. Ukraine (No.

36958/21); Armenia v. Azerbaijan (II) (No. 33412/21); Armenia v. Azerbaijan (III) (No. 42445/21); Armenia v. Azerbaijan

(IV) (No. 15389/22); Azerbaijan v. Armenia (II) (No. 39912/22). See

the ECtHR website.

57. Latvia v. Denmark (No. 9717/20); Slovenia v. Croatia (No. 54155/16); Ukraine v. Russian Federation (III) (No.

49537/14); Georgia v. Russian Federation (III) (No. 61186/09); Georgia v. Russia (I) (No. 13255/07); Denmark v. Turkey

(No. 34382/97); Cyprus v. Turkey (IV) (No. 25781/94); Denmark, France, Norway, Sweden & the Netherlands v. Turkey

(nos. 9940/82 to 9944/82); Cyprus v. Turkey (III) (No. 8007/77); Cyprus v. Turkey (I) and (II) (Nos. 6780/74 and 6950/75);

Ireland v. United Kingdom (II) (No. 5451/72); Ireland v. United Kingdom (I) (No. 5310/71); Denmark, Norway, Sweden &

the Netherlands v. Greece (II) (No. 4448/70); Denmark, Norway, Sweden & the Netherlands v. Greece (I) (nos. 3321/67 to

3323/67 and 3344/67); Austria v. Italy (No. 788/60); Greece v. United Kingdom (II) (No. 299/57); Greece v. United

Kingdom (I) (No. 176/56). Of these

25 applications, 17 (68%) involved either Türkiye or Greece as one of the parties to the

proceedings.

58. Application No. 25781/94, Grand Chamber judgments of 10 May 2001 (on the merits) and 12 May 2014 (just

satisfaction). Cyprus v Turkey (merits) – see here for the status of implementation.

Doc. 15742 Report

Greek Cypriot missing persons, and the property rights of displaced Greek Cypriots and of those residing in

the part of Cyprus under the effective control of Türkiye, which have been on its agenda since 2001. The main

issues concerning the implementation of Cyprus v. Turkey have already been presented in an information

document.

The case concerns 14 violations of the Convention in relation to the situation in the part of

Cyprus where Türkiye exercises effective control concerning:

– Greek Cypriot missing persons and their relatives (violation of Articles 2, 3 and 5).

Related to this is

the Varnava v. Turkey

case which concerns the lack of effective investigations into the fate of Greek

Cypriots who disappeared during the Turkish military operations in Cyprus in 1974;

– Property rights of displaced Greek Cypriots (violation of Articles 8 and 13 and of Article 1 of the

Additional Protocol of the Convention (ETS No. 9). Related to this is the Xenides-Arestis case;

– Living conditions of Greek Cypriots in the Karpasia/Karpas peninsula (violation of Articles 3, 8, 9, 10

and 13 and Articles 1 and 2 of the Additional Protocol to the Convention);

– Rights of Turkish Cypriots living in the part of Cyprus under the effective control of Türkiye relating to

the competence of Turkish military courts (violation of Article 6).

31. In the Cyprus v. Turkey (just satisfaction) judgment,

the Grand Chamber ruled that Türkiye was to

pay the Government of Cyprus 30 million euros in respect of non-pecuniary damage suffered by the relatives

of missing persons and 60 million euros in respect of non-pecuniary damage (not concerning property rights)

suffered by the enclaved Greek Cypriot residents of the Karpasia/Karpas peninsula. The Court indicated that

these amounts should be distributed by the Government of Cyprus to the individual victims under the

supervision of the Committee of Ministers. In September 2021, the Committee of Ministers adopted Interim

Resolution CM/ResDH(2021)201 strongly urging the Turkish authorities to abide by their unconditional

59.

Concerning the rights of Greek Cypriots in the part of Cyprus under the effective control of Türkiye to education, and

freedom of religion and their property rights, as well as the competences of military courts, see Interim Resolutions

ResDH(2005)44, CM/Res(2007)25 and CM/ResDH(2020)185.

60. AS/Jur(2023)06 “The Implementation of judgments of the European Court of Human Rights – 11th report Information

note in preparation of a hearing in relation to Türkiye”.

61. As regards missing persons, the Committee on Missing Persons continues its search by exhumation activities and

submitting any new relevant information on possible burial sites. As of 31 January 2022 the CMP had found the remains of

1 185 persons and identified 1 024 persons belonging to both communities (out of 2 002 missing persons from both

communities). Amongst the identified persons, 733 were Greek Cypriots (out of 1 510 missing Greek Cypriots). The

Turkish authorities indicated that in 1997 they provided the CMP with all the information at their disposal about possible

burial sites.

As regards criminal investigations, the Missing Persons Unit was set up in the northern part of Cyprus in 2010 to

conduct investigations into the death of Greek Cypriots whose remains have been located and identified by the CMP. As

of 2020 (

DH-DD(2020)1003), this unit has opened 700 criminal investigations, and received written statements from

605 witnesses. NGOs have criticised the lack of involvement of the victims’ families in the process of investigations and

have instead called for a Truth Commission (DH-DD(2021)150).

62. Varnava v. Turkey.

63. Xenides-Arestis v. Turkey – see here for the status of execution. Following the Xenides-Arestis judgment, Law No.

67/2005 on the Compensation, Exchange or Restitution of Immovable Property (“the IPC Law”) was adopted, setting up a

modified Immovable Property Commission (IPC). This Law enables Greek Cypriot owners to apply to the IPC for

restitution, compensation and/or exchange, as well as for compensation for loss of use, in respect of immovable property

located in the northern part of the island that was registered in their names on 20 July 1974 (or in the name of a person of

whom they are the legal heirs). Concerns have been expressed that property is being affected by property transfers and

construction activities. The Turkish authorities have noted that following a decision by the IPC providing for immediate

restitution of properties or for their restitution after the solution of the Cypriot problem, they cannot be sold or developed

without the consent of their Greek Cypriot owners. The Turkish authorities consider that this part of the judgment should

be closed given the functioning of the IPC, the amount already paid in awards, and the assessments of the ECtHR.

64. Following the measures adopted by Türkiye, the Committee of Ministers has closed supervision relating to living

conditions of Greek Cypriots in the part of Cyprus under the effective control of Türkiye as regards secondary education,

censorship of schoolbooks, freedom of religion and property rights. Further elements of the Cyprus v. Turkey judgment

have yet to be examined, including the breach of the right to respect for private and family life and home of Greek Cypriots

living in the parts of Cyprus under the effective control of Türkiye, in particular arising from the restrictions on family visits

and the surveillance of their contacts and movements (violation of Article 8); and discrimination against Greek Cypriots

living in the Karpas region amounting to degrading treatment due to the restrictions imposed on their community (violation

of Article 3); and a lack of remedies in respect of the authorities’ interference with the rights of Greek Cypriots living in the

part of Cyprus under the effective control of Türkiye (violation of Article 13).

65. Following the measures adopted by Türkiye, the Committee of Ministers has closed supervision relating to the rights

of Turkish Cypriots living in the part of Cyprus under the effective control of Türkiye (competence of military courts).

66. Cyprus v. Turkey (just satisfaction).

Doc. 15742 Report

obligation and pay the just satisfaction awarded by the Court in 2014 in this case, together with the default

interest accrued, without further delay. Notwithstanding further decisions in 2022 and 2023 deploring the

absence of a response to this interim resolution, the just satisfaction remains unpaid.

32. I set out the status of implementation in this case in the information note published to facilitate the

exchange of views of the Committee on Legal Affairs and Human Rights on Türkiye in January 2023.

33. In March 2023, the Committee of Ministers also examined the issue of missing Greek Cypriots and,

whilst acknowledging the progress that had been made since 2001, reiterated its call on the Turkish

authorities to continue to ensure that the Committee on Missing Persons (CMP) has unhindered access to all

areas, and information on any places, where remains might be found and for the continuation of the

investigations conducted by the Missing Persons Unit. The Committee furthermore examined the related

individual case Varnava and Others v. Turkey. In this case, the Committee also insisted again firmly on the

unconditional obligation of Türkiye to pay without further delay the just satisfaction awarded by the Court in

2019.

34. The Xenides-Arestis group of cases v. Turkey

concerns 33 individual cases regarding interference

with property rights relating to properties in the part of Cyprus under the effective control of Türkiye where

payment of just satisfaction is still outstanding. In 2021, the Committee of Ministers decided to close the

supervision of the execution of the judgments in the cases of Alexandrou and Eugenia Michaelidou

Developments Ltd and Michael Tymvios and adopted a final resolution. The general measures required in

response to the shortcomings found by the Court in these cases continue to be examined within the

framework of Cyprus v. Turkey. The Committee of Ministers, when last examining this group in 2022,

instructed the Secretariat, if the situation concerning the payment of just satisfaction remained unchanged, to

prepare a draft interim resolution on the payment of the just satisfaction, for consideration by the Committee at

its next examination.

35. The Committee of Ministers also examined the Kakoulli and Isaak groups of cases concerning Türkiye,

relating to violations of the right to life in respect of individuals killed having crossed the ceasefire line. In the

last examination, as regards individual measures, the Committee requested additional information in respect

of the competent authorities’ conclusion that the security forces acted lawfully and on the possibility for new

investigations in some cases. As regards general measures, the Committee of Ministers welcomed the

message of zero tolerance of police ill-treatment delivered by the competent Attorney General and noted with

interest the introduction of a possibility to remove from office a police officer following a conviction to a prison

sentence for excessive use of force, as well as the introduction of a new criminal offence in the Criminal Code

on excessive use of force.

5.2. Georgia v. Russia

36. Georgia v. Russia (I),

originates in the political tensions between the two countries in the summer of

2006 and concerns the arbitrary arrest, detention and expulsion from the Russian Federation of a large

number of Georgian nationals in 2006 and 2007 (violations of Article 4 of Protocol No. 4 (ETS No. 46) and of

Articles 3, 5(1)(4), 13 and 38 of the Convention). In relation to general measures, in February 2022 the

Russian authorities submitted an action plan (DH-DD(2022)211). According to the action plan, a draft law had

been developed to allow the individual circumstances of foreign nationals to be considered before expulsion

and to establish better conditions of detention for vulnerable categories. The Committee of Ministers

evaluated the changes positively but considered that “those developments alone cannot fully respond to the

root causes of the problem raised in the judgment.”

37. In its just satisfaction judgment, the European Court of Human Rights held that, within three months,

the Russian Federation was to pay the Government of Georgia 10 million euros in respect of non-pecuniary

damage suffered by the group of at least 1 500 Georgian nationals, who were victims of the violations of the

Convention. The Court indicated that these amounts should be distributed by the Government of Georgia to

the individual victims under the supervision of the Committee of Ministers. The deadline for payment expired

67.

AS/Jur(2023)06, op. cit., paragraphs 39-45.

68. Xenides-Arestis v. Turkey (Application No. 46347/99) – in respect of which the payment of just satisfaction has been

due since 2007.

69. There is also a more recent interstate case, Georgia v. Russia (II), which concerns various violations of the

Convention in the context of the armed conflict between Georgia and Russia in August 2008.

70. Application No. 13255/07, Grand Chamber judgments of 3 July 2014 (on the merits) and 31 January 2019 (just

satisfaction).

71. Interim Resolution CM/ResDH(2022)146, 10 June 2022.

Doc. 15742 Report

on 30 April 2019 and Russia has raised various arguments seeming to contest this award of just satisfaction.

There was some hope of a breakthrough in 2021. An innovative approach was proposed, whereby the

Russian Federation would pay the just satisfaction and accrued interest into a Council of Europe bank

account. The sums would be held in a fiduciary capacity until details of the distribution mechanism were

provided to the Committee of Ministers by the Georgian authorities and approved by it in a decision

authorising the sums to be transferred to Georgia. In December 2021, the Committee of Ministers noted with

satisfaction that the Secretary General of the Council of Europe and the Georgian authorities had signed a

memorandum of understanding to this end, and looked forward also to the swift signature of the memorandum

of understanding by the Russian authorities and the payment of the funds to the Council of Europe bank

account held in escrow in the shortest possible time-frame and in any event by the end of the year. On 17

December 2021, the Russian Government agent also signed the memorandum of understanding, which was

transmitted to the Secretary General. Unfortunately, however, the payment, as requested by the Committee of

Ministers and required by the memorandum of understanding, was not made. In its interim resolutions of June

and December 2022, the Committee of Ministers firmly reiterated the unconditional nature of the obligation in

Article 46(1) of the Convention to pay the just satisfaction awarded by the Court and deeply deplored the

continued lack of payment.

5.3. The situation in the Transnistrian region of the Republic of Moldova – the Catan and Mozer

cases

38. Catan and Others v. Moldova and Russia,

concerns the violation of the right to education of children

or parents of children from Latin-script schools located in the Transnistrian region of the Republic of Moldova.

The Court found that the Russian Federation exercised effective control over the Transnistrian region of

Moldova during the period in question and the Russian Federation incurred responsibility under the

Convention for the violation. Again, this is a case where the Russian Federation sought to contest the

judgment and responsibility for implementing the judgment, notwithstanding the final binding judgment of the

ECtHR.

39. Despite interim resolutions, problems remain. The Committee of Ministers considered the case in 2021

and deeply deplored that, some nine years after the judgment became final, the Russian authorities had failed

to provide the Committee with any information on the concrete measures taken or foreseen to execute the

judgments in the group to which this case belongs. The Committee of Ministers took the unusual step of

instructing the Secretariat to prepare an analysis of the measures required, in the light of the ECtHR findings

and the current factual conditions concerning the functioning of the Latin-script schools. Although unusual, the

instructions given to the Secretariat reflect the Committee of Ministers’ recognition that measures are needed

to implement Court judgments. In December 2022, the Committee of Ministers noted that after ten years the

Russian authorities continue to fail to pay the just satisfaction and to provide the Committee with an action

plan or to comply with the final binding judgment of the Court, contrary to Article 46(1).

40. Mozer v. Moldova and Russia,

and 42 other cases, concern various violations of the Convention

which took place in the Transnistrian region of the Republic of the Moldova between 1997 and 2016. The

Court maintained its previous findings that Russia continued to exercise effective control and a decisive

influence over the “MRT (Moldavian Republic of Transnistria) authorities”. Some of the applicants received a

letter dated 4 August 2022 from the Russian authorities stating that these decisions could not be executed

because they contravene the constitutional foundations of the Russian Federation.

In a decision of 8

December 2022, the Committee of Ministers reiterated its grave concern over the absence of any action plan

or report in this group of cases and firmly urged the Russian authorities to provide relevant documents, setting

out concrete measures to execute the judgments.

72.

Interim Resolution CM/ResDH(2022)146, 10 June 2022; Interim Resolution CM/ResDH(2022)354, 8 December 2022.

73. Catan and Others v. Moldova and Russia, Application Nos. 43370/04, 8252/05 and 18454/06, judgment of

19 October 2012. In 2018, the Court issued another judgment – Bobeico and Others v. Russia (Application No. 30003/04,

judgment of 23 October 2018) – finding the same kind of Convention violation for another group of children.

74. Decision CM/Del/Dec(2022)1451/H46-30 – 8 December 2022.

75. Application No. 11138/10, 23 February 2016.

76. Secretariat of the Committee of Ministers – DH-DD(2022)1227, 10 November 2022, submitted on 24 October 2022.

77. Decisions – CM/del/Dec(2022)1451/H46-34, Ministers’ Deputies, 1451st meeting, 8 December 2022.

Doc. 15742 Report

5.4. Cases relating to the situation in Nagorno-Karabakh

41. Since June 2015, the Committee of Ministers has been examining the implementation of two judgments

relating to the military conflict between Armenia and Azerbaijan in Nagorno-Karabakh between 1988 and

1994: Chiragov and Others v. Armenia

and Sargsyan v. Azerbaijan.

The Chiragov and Others judgment

concerns Azerbaijani nationals who were forced to flee from their homes in Lachin at the beginning of the

conflict, and were consequently denied access to their property and homes as well as any redress remedy

(continuing violations of Article 1 of the Additional Protocol to the Convention, Articles 8 and 13 of the

Convention). The Court found that Armenia “exercised effective control over Nagorno-Karabakh and the

surrounding territories”, including the district of Lachin, and that the matters complained of “fell within the

jurisdiction of that State”.

The Sargsyan judgment concerns an Armenian refugee who, because of the

conflict, was forced to leave his home in Gulistan, over which, according to the Court, Azerbaijan had the

“internationally recognised jurisdiction”. The Court accepted the Azerbaijani authorities’ refusal to grant civilian

access to the village because of safety considerations, but criticised the lack of measures aimed at restoring

the applicant’s rights in respect of his property and home and the lack of any compensation mechanism (also

continuing violations of Article 1 of the Additional Protocol to the Convention, Articles 8 and 13 of the

Convention). In both judgments, the Court held that “pending a comprehensive peace agreement it would

appear particularly important to establish a property claims mechanism, which should be easily accessible

and provide procedures operating with flexible evidentiary standards, allowing the applicants and others in

their situation to have their property rights restored and to obtain compensation for the loss of their

enjoyment”.

In the just satisfaction judgments in both cases, the Court awarded each applicant a just

satisfaction of 5 000 euros for pecuniary (loss of income and increased living expenses) and non-pecuniary

damage. The just satisfaction awarded by the Court in 2017 has still not been paid, although the Secretariat

has been working on innovative solutions including a memorandum of understanding to pay the just

satisfaction through a Council of Europe bank account.

42. In addition to the more regular interstate cases, a significant proportion of Azerbaijan’s ECtHR cases

pending implementation relate to the consequences of the conflict. Many of these cases relate to

accommodation for internally displaced persons in Azerbaijan, under the Mirzayev Group.

These cases

concern people who were forced to leave their homes due to the conflict, many of whom moved into

apartments belonging to others (there are over 500 domestic cases that still require execution). These cases

make up around 40% of Azerbaijan’s overall unimplemented cases. However, there are also other cases

relating to the conflict. During my visit to Azerbaijan, I heard of the progress in some areas, but that due to the

sensitivity of such matters, and concerns over reciprocity, progress was not as fast as it might have been for a

less politically sensitive matter. In my information note on the visit, I suggested that it would be useful to

consider how co-operation can be improved with Armenia over human rights issues arising from the conflict. I

would also encourage Azerbaijan to take action to resolve matters relating to internally displaced persons – if

this group of cases were resolved this would reduce the overall statistics for unimplemented Azerbaijani cases

by around 40%. This would enable Azerbaijan to deal with the unimplemented judgments which pertain to

serious domains of democracy and the rule of law.

6. Article 18 judgments, concerning abusive limitations of rights and freedoms

43. According to the Annual Report 2021, the number of Article 18 judgments has been increasing and, as

of end 2021, 13 such cases concerning five States (Azerbaijan, Georgia, Russian Federation, Türkiye and

Ukraine) were pending before the Committee of Ministers.

They concern primarily the arrest, detention and,

in some cases, conviction of government critics, civil society activists, human-rights defenders and politicians,

in many cases involving criminal prosecutions for charges unsupported by evidence and where the ulterior

motive is to silence or punish the applicant and discourage other activists or critics. These are: the Mammadli

v. Azerbaijan group of cases,

Lutsenko v. Ukraine,

and Tymoshenko v. Ukraine,

Merabishvili v.

Georgia,

Kavala v. Turkey,

Selahattin Demirtaş v. Turkey (No. 2),

Navalnyy v. Russia

and Navalnyy

78.

Application No. 13216/05, Grand Chamber judgments of 16 June 2015 (on the merits) and of 12 December 2017 (on

just satisfaction). The case notes contain the latest information on the state of implementation.

79. Application No. 40167/06, Grand Chamber judgments of 16 June 2015 (on the merits) and of 12 December 2017 (on

just satisfaction).

80. Paragraph 186 of the Chiragov and Others judgment.

81. Paragraph 199 of the Chiragov and Others judgment and paragraph 238 of the Sargsyan judgment.

82. Mirzayev v. Azerbaijan (2009).

83. The Annual Report 2022, issued after this explanatory memorandum was drafted, identifies 13 such cases

concerning Azerbaijan, Bulgaria, Georgia, the Russian Federation, Türkiye and Ukraine.

84. Application No. 15172/13, judgment of 22 May 2014. Group of six cases.

Doc. 15742 Report

(No. 2) v. Russia.

The 10th report examined in detail the implementation of the judgment Ilgar Mammadov v.

Azerbaijan, which was subject to an Article 46(4) judgment, and other cases from this (former) group (now

called the Mammadli group).

It is welcome that some of these cases could now be closed. I have set out

some of them in further detail below to illustrate the types of issues and challenges.

44. Violations of Article 18 of the Convention deny par excellence the very gist of democracy and are

regarded as particularly serious given that they relate to the purposive misuse of power. They “require special

attention since, not only are they typically linked to systemic problems at national level but because they also,

by their nature, have a prominent political dimension which may create barriers to swift execution”.

According to the Committee of Ministers’ established practice, the execution of such cases would require that

all the negative consequences of the abusive criminal proceedings for the applicant be erased (the principle of

restitutio in integrum) and that the respondent State take measures to prevent any repetition of abuses of

power, and, if need be, strengthen the independence of the judiciary and the prosecuting authorities.

45. A summary of the hearing held on 14 November 2022 (see the Appendix) explains the specific nature

of Article 18 judgments, which concern human rights violations in pursuit of an unlawful ulterior purpose. The

clear jurisprudence applied by the ECtHR in relation to Article 18 cases relates to (1) a significant time gap

between the sets of events (for example many years between the alleged facts and the acts of the

prosecution); (2) the quality of the totality of evidence (for example if lawful activities were criminalised); (3)

the conduct of the applicant in the criminal process; and (4) temporal inferences between how politicians

approached the framing of a case and the framing of the indictment. This hearing highlighted the significance

of Article 18 judgments in relation to the misuse of power and ulterior motives for human rights abuses; such

judgments are a red flag. I underline that the implementation and full redress of Article 18 violations constitute

the very essence of a democratic society. I noted in particular the different types of Article 18 cases (detention

cases and those to silence through disciplinary proceedings), and the need for close and timely monitoring of

Article 18 cases. National parliaments and parliamentarians need to intervene to support the resolution of

such cases, and more might be done to involve national parliaments and parliamentarians in this work

46. The Committee of Ministers has brought infringement proceedings under Article 46(4) in relation to

unimplemented Article 18 detention cases. This has facilitated the release of Ilgar Mammadov by Azerbaijan.

However the judgment in favour of human rights defender Mr Kavala has yet to secure his release by Türkiye;

he has now spent 5 years in prison. In these infringement proceedings, the ECtHR noted that where an

individual's detention was deemed to be a violation of Article 18, if they were released and then re-detained on

different charges but based on the same facts, then the Article 18 violation continued.

6.1. Article 46(4) and failure to comply with a final judgment of the ECtHR – Arbitrary detention

with the ulterior purpose of silencing Osman Kavala and dissuading other human rights

defenders

47. Osman Kavala, a human right defender in Türkiye, has been involved in setting up numerous NGOs

and civil-society movements which are active in the areas of human rights, culture, social studies, historical

reconciliation and environmental protection. Mr Kavala was arrested on 18 October 2017 and placed in pre-

trial detention, accused of attempting to overthrow the government within the context of the Gezi Park events

of 2013 (Article 312 of the Turkish Criminal Code) and to overthrow the constitutional order within the context

of the attempted coup in July 2016 (Article 309 of the Turkish Criminal Code). He has been deprived of his

liberty since then.

48. In the 2019 Kavala judgment,

the European Court of Human Rights concluded that there had been a

violation of Article 5 and of Article 18 taken together with Article 5, with regard to the suspicions raised against

Mr Kavala in October 2017 concerning the Gezi Park events and the attempted coup of 15 July 2016, and his

subsequent pre-trial detention. The Court found that this arrest and pre-trial detention took place in the

85.

Application No. 6492/11, judgment of 3 July 2012.

86. Application No. 49872/11, judgment of 30 April 2013.

87. Application No. 72508/13 judgment of 28 November 2017.

88. Application No. 28749/18, judgment of 10 December 2019.

89. Application No. 14305/17, judgment of 22 December 2020.

90. Application No. 29580/12, judgment of 15 November 2018 (Grand Chamber).

91. Application No. 43734/14, judgment of 9 April 2019.

92. 10th report, Section 4.1.

93. Annual Report 2020, p. 12.

94. Annual Report 2021, p. 17.

95. Kavala v. Turkey – see here for the status of execution.

Doc. 15742 Report

absence of evidence to support a reasonable suspicion he had committed an offence and also that they

pursued the ulterior purpose of silencing him and dissuading other human rights defenders (violation of Article

18 taken in conjunction with Article 5). The Court indicated that any continuation of the applicant’s pre-trial

detention would entail a prolongation of the violation of Article 5 and of Article 18 in conjunction with Article 5,

as well as a breach of Türkiye’s obligations to abide by the Court’s judgments in accordance with Article 46(1)

of the Convention. It therefore held that the government should secure his immediate release.

49. However, the applicant was not released, and the Committee of Ministers thus referred the matter to

the Court under Article 46(4). In the ensuing 2022 Kavala (Article 46(4)) judgment, issued on 11 July 2022,

the Grand Chamber found that Türkiye had failed to fulfil its obligation to comply with final judgments of the

ECtHR under Article 46(1). It noted that failure to implement a final, binding judicial decision would be likely to

lead to situations incompatible with the principle of the rule of law. The Court considered that the measures

indicated by Türkiye did not permit it to conclude that the State Party had acted in “good faith”, in a manner

compatible with the “conclusions and spirit” of the Kavala judgment, or in a way that would make practical and

effective the protection of the Convention rights. The Court held that its finding in the first Kavala judgment of

a violation of Article 5(1), read separately and in conjunction with Article 18, “vitiated any action resulting from

the charges relating to the Gezi Park events and the attempted coup”.

50. On 25 April 2022, the Assize Court convicted the applicant and sentenced him to aggravated life

imprisonment for attempting to overthrow the government by force (Article 312 of the Turkish Criminal Code).

On 28 December 2022 the Istanbul Regional Appeal Court rejected the applicant’s appeal against the

conviction and sentence. Given the ECtHR’s findings that there was insufficient evidence for any reasonable

suspicion that Mr Kavala had committed these crimes, it is difficult to understand how the Turkish courts have

concluded that there was sufficient evidence for conviction. Further proceedings are pending.

51. The Turkish authorities have sought to dispute the clear findings of the ECtHR rather than seeking to

comply with Türkiye’s obligations under Article 46(1) of the Convention to eliminate all the negative

consequences of the criminal charges brought against Mr Kavala, raising concerns for respect of the

Convention system as a whole.

52. On 11 July 2022, the Chair of the Committee of Ministers, the President of the Parliamentary Assembly,

and the Secretary General made a joint statement, urging Türkiye, as a Party to the Convention, to take all

necessary steps to implement the judgment. In November 2022, the Committee of Ministers appointed a

Liaison Group of Ambassadors to assist its Chair in engaging with the Turkish authorities regarding the

implementation of the judgment in the Kavala case (CM/Del/Dec(2022)1446/H46-1). The Committee of

Ministers regularly examines this issue. In January 2023, the Assembly co-rapporteurs for the monitoring of

Türkiye had a meeting with Mr Osman Kavala.

53. This case displays the procedural barriers that States use to seek to deflect from timely implementation

of ECtHR judgments, especially where political will is the principal obstacle. The Assembly should make clear

that any prevarication with the implementation of a judgment, and especially following an Article 46(4)

judgment is unacceptable and threatens the Convention system as a whole. I strongly urge Türkiye to

implement this judgment with no further delay.

6.2. Arbitrary detention – politically motivated violation of rights – Selahattin Demirtaş

54. The Demirtaş (No. 2)

case concerns the politically motivated arrest and detention of Selahattin

Demirtaş, who was, between 2007 and 2018, one of the leaders of the Peoples’ Democratic Party (HDP), a

pro-Kurdish opposition party, and a member of the Turkish National Assembly. In October 2014, violent

protests took place in 36 provinces in eastern Türkiye, followed by further violence in 2015 in the wake of the

breakdown of negotiations aimed at resolving the “Kurdish question”. On 20 May 2016, the Turkish

Constitution was amended, lifting inviolability from prosecution for certain members of parliament. Mr Demirtaş

was one of the 154 parliamentarians (including 55 HDP members) who lost parliamentary inviolability

following the constitutional amendment.

Mr Demirtaş was arrested on 4 November 2016 and placed in pre-

trial detention, charged with offences under various provisions of the Criminal Code, the Prevention of

Terrorism Act, and the Meetings and Demonstrations Act, including membership of an armed organisation

96.

Selahattin Demirtaş v. Turkey – see here for the status of execution.

97. Other related cases also concern the lifting of parliamentary inviolability of parliamentarians, including the recent case

Yüksekdağ Şenoğlu and Others v. Turkey, (Application No 14332/17), which also concerns a number of violations of

Article 18, 5, 10 of the Convention and Article 3 of the Additional Protocol, following the detention of twelve

parliamentarians.

Doc. 15742 Report

(Article 314 of the Turkish Criminal Code) and public incitement to commit an offence (Article 214 of the

Turkish Criminal Code). At the same time 8 other democratically elected HDP members of parliament, were

also arrested, as was the former HDP co-chair Figen Yüksekdağ.

55. The Court considered, in respect of the applicant’s pre-trial detention between 4 November 2016 and

7 December 2018, that the domestic courts had failed to indicate specific facts or information that could give

rise to a reasonable suspicion that the applicant had committed the offences in question and justify his arrest

and pre-trial detention (violations of Article 5(1) and (3)). It further held that the way in which his parliamentary

inviolability was removed and the reasoning of the courts in imposing pre-trial detention on him violated his

rights to freedom of expression and to sit as a member of parliament (violations of Article 10 of the Convention

and Article 3 of the Additional Protocol to the Convention). Finally, taking into account, among other elements,

the applicant’s return to pre-trial detention on 20 September 2019, the Court found that the applicant’s

detention pursued the ulterior purpose of stifling pluralism and limiting freedom of political debate (violation of

Article 18 in conjunction with Article 5). The Court indicated, under Article 46, that the nature of the violation

under Article 18 left no real choice as to the measures required to remedy it, and that any continuation of the

applicant’s pre-trial detention on grounds pertaining to the same factual context would entail a prolongation of

the violation of his rights as well as a breach of the obligation on the respondent State to abide by the Court’s

judgment in accordance with Article 46(1), of the Convention. It therefore held that Türkiye had to take all

necessary measures to secure the applicant’s immediate release. The applicant is still in detention; therefore

the ECtHR judgment has not been complied with. The Committee of Ministers has strongly urged the Turkish

authorities to ensure his immediate release.

6.3. The Mammadli v. Azerbaijan group of Article 18 cases

56. The Mammadli Group

concerns political-motivated arrests and prosecutions of human rights

defenders, civil society activists and a journalist, all subject to arrest and detention from 2013 to 2016, in

violation of Articles 18 and 5 of the Convention.

As these cases relate to the misuse of the criminal law

intended to punish and silence these individuals contrary to Article 18 of the Convention, they are a priority

both for this report and for the Council of Europe in general. There has been welcome progress here in that all

individuals in this group have now been pardoned and released, but in order to address the individual

measures, and to eliminate all consequences of these violations, their convictions need to be quashed. In this

light, during my visit to Baku, it was positive to hear from the Supreme Court that it was working its way

through the remaining six cases to remove the consequences of these prosecutions and that all of the cases

should be dealt with in 2023, to move towards closing supervision of this group of cases. It is worrying that the

judiciary in Azerbaijan is not completely independent from the executive. Therefore, ensuring respect for the

separation of powers and the independence of the judiciary, including through the independence of the

Judicial Legal Council, is also a core part of the general measures required for this group as well as being a

theme in relation to respect for ECtHR judgments in Azerbaijan.

100

7. Specific challenges, including cases revealing long-standing “systemic and structural problems”

identified by the Court’s judgments

57. The Annual report 2021 pinpoints, in particular, major issues concerning the functioning of the judicial

system (including cases concerning excessive length of judicial proceedings and non-enforcement of

domestic judicial decisions); ill-treatment by State agents and/or ineffective investigations; poor conditions of

detention; or cases linked to democracy and pluralism (right to free elections, freedom of expression, freedom

of assembly and freedom of association). To facilitate progress on these issues, I propose that the Assembly

prepare reports on these themes in order to try to shine a spotlight on them, to consider and promote potential

solutions and to try better to tackle these challenges. In this light, I note that I am currently working on a report

on systemic torture, which should go some way to identifying the challenges of ill-treatment by State agents –

98.

Mammadli v. Azerbaijan – see here for the status of execution.

99. In some cases violations of Articles 3 (freedom from torture and inhuman or degrading treatment or punishment),

Article 6 (right to a fair trial), Article 8 (right to family and private life), Article 10 (freedom of expression) and Article 1 of the

Additional Protocol (right to peaceful enjoyment of possessions) were also found.

100. Improving the independence of the judiciary is a requirement for addressing the general measures in the Mammadli

group, as well as the Namat Aliyev group (Namat Aiyev v. Azerbaijan (2010) – see here for the status of execution), which

relates to violations of the right to free elections (Article 3 of the Additional Protocol), specifically relating to the arbitrary

application of electoral legislation and the absence of adequate safeguards against arbitrariness – in particular relating to

the approach taken by the courts in considering such cases. The fairness of civil and criminal proceedings is also relevant

to a number of groups of cases, including the

Isanov group.

Doc. 15742 Report

some of which could surely be avoided by better deployment of body cameras, for example. I suggest a more

systemic and structured approach for the future with Assembly reports on these systemic and structural

problems as identified through the Annual Reports of the Department for the Execution of Judgments.

58. I should also like to highlight some other cases that raise specific issues requiring increased attention.

These relate to secret detention and rendition by the American Central Intelligence Agency (CIA) in a number

of Council of Europe member States including Lithuania, Poland and Romania (see paragraph 59); the Greek

authorities’ refusal to register associations relating to ethnic minorities (see paragraph 60); concerns relating

to the Polish reform of the judiciary (see paragraph 61); and the inherently discriminatory nature of the

constitution of Bosnia and Herzegovina dividing the population along ethnic lines, affecting elections in that

country (see paragraph 62).

59. The Al Nashiri and Husayn (Abu Zubaydah) v. Poland

101

cases relate to the secret detention of the

applicants, suspected of terrorist acts, in the CIA detention facility in Poland and their subsequent transfer to

Guantanamo Bay, in a situation that may amount to a risk of imposition of the death penalty or to a flagrant

denial of justice.

102

The applicants’ situation is also examined by the Committee of Ministers in the context of

the implementation of two subsequent judgments, Al Nashiri v. Romania

103

concerning the CIA “extraordinary

rendition” operations in Romania (between 2004 and 2005), and Abu Zubaydah v. Lithuania

104

concerning

the CIA “extraordinary rendition” operations in Lithuania (between 2005 and 2006) and finding the same

violations of the Convention as in the two above-mentioned cases against Poland. Despite numerous

repeated calls from the Committee of Ministers, significant concerns relating to individual measures and

challenges in obtaining the requisite diplomatic assurances from the US as to the use of the death penalty and

inhuman treatment remain (although some progress has been made on general measures to prevent

recurrence).

60. The judgments concerning violations of the right to freedom of association resulting from the Greek

authorities' refusal to register associations promoting the idea of the existence of an ethnic minority as distinct

from the religious minorities recognised by the 1923 Treaty of Lausanne (Bekir-Ousta group)

105

remain

unimplemented for almost 15 years. Similar questions have been under the Committee of Ministers’

supervision since 2015 in House of Macedonian Civilization and Others v. Greece.

106

This is the second

judgment, following that of Sidiropoulos and Others v. Greece

107

of 1998, concerning the same association in

which the Court found a violation by Greece of Article 11 of the Convention. Despite the legislative

amendment adopted by Greece in 2017 which allowed the reopening of the impugned proceedings, the

applicant organisations have still not received restitutio in integrum, largely due to the judgments of the Greek

Court of Cassation in 2021 and 2022 which considered that the dissolution of the Tourkiki Enosi Xanthis

association to be lawful on grounds most of which were expressly impugned by the ECtHR and the decision

not to register Emin and Bekir-Ousta to be lawful, also on certain grounds already rejected by the ECtHR

(related to the promotion of the idea of existence of an ethnic minority). The Committee of Ministers

considered this group of cases most recently in December 2022 and expressed their “most profound regret

that the Court of Cassation did not take into consideration an essential element spelled out by the European

Court”, noting that the members of these associations have never advocated the use of violence or

undemocratic or unconstitutional means and that no evidence was presented showing the opposite.

108

In light

101.

Applications Nos. 28761/11 and 7511/13, judgment of 24 July 2014.

102. The cases concern multiple violations of the Convention, and in particular of Article 3, Article 6(1), and, with regard to

Mr Al Nashiri, also of Articles 2 and 3 taken together with Article 1 of Protocol No. 6 (ETS No. 114). These issues were first

examined in the two reports by our former committee colleague Mr Dick Marty (Switzerland, ALDE) “Alleged secret

detentions and unlawful inter-state transfers of detainees involving Council of Europe member States”, Doc. 10957 of

12 June 2006, and “Secret detentions and illegal transfers of detainees involving Council of Europe member states:

second report”,

Doc. 11302 of 11 June 2007. These reports led to the adoption of the Assembly’s Resolutions 1507 (2006)

and 1562 (2007) and Recommendations 1754 (2006) and 1801 (2007).

103. Application No. 33234/12, judgment of 31 May 2018. In line with the Court’s indications, the Romanian authorities

took a number of steps, which are summarised in the notes on the agenda of the Committee of Ministers’ 1411st meeting

(September 2021) (DH) (

CM/Notes/1411/H46-26). These steps included parliament enacting legislation to disapply the

statute of limitations to the crime of torture

104. Application No. 46454/11, judgment of 31 May 2018. In line with the Court’s indications, the Lithuanian authorities

took a number of steps, which are summarised in the notes on the agenda of the Committee of Ministers’ 1348th meeting

(DH) (CM/Notes/1348/H46-14) (June 2019).

105. Bekir-Ousta and Others v. Greece, judgment of 11 October 2007.

106. Application no. 1295/10, judgment of 9 July 2015, examined for the last time at the 1362

meeting (DH), see

CM/Del/Dec(2019)1362/H46-9, 5 December 2019.

107. Application no. 26695/95, judgment of 10 July 1998.

108. Bekir-Ousta, HUDOC EXEC Case Notes.

Doc. 15742 Report

of this, the Chair of the Committee of Ministers sent a letter to the authorities of Greece conveying the

Committee of Ministers’ deep concern about the present situation and urging them to swiftly adopt measures

allowing the full and effective execution of the European Court’s judgments. The successive barriers to full

implementation of these cases are regrettable. Notwithstanding the legislative amendments introduced, it is

frustrating that new barriers to implementation seem to have been imposed. This should finally be resolved.

61. The recent Polish reforms to its judiciary have incited controversy, not least given the apparent refusal

of the Polish authorities – including the newly reformed judiciary – to abide by the final judgments of the

ECtHR on this topic. In Xero Flor v. Poland,

109

the ECtHR found a violation of Article 6 of the Convention

because of the composition of the Polish Constitutional Tribunal and questioned the validity of the election of

several judges.

110

Similarly, in the Reczkowicz group of cases, the ECtHR found violations of the right to a

tribunal established by law, contrary to Article 6 of the Convention, due to the participation in domestic

proceedings of the Polish Supreme Court judges that were appointed in an inherently deficient procedure on

the motion of the National Council of the Judiciary, lacking independence from the legislature and the

executive, noting the wider context of reforms aimed at weakening judicial independence.

111

In its judgment

of 29 September 2021 in Broda and Bojara v. Poland,

112

the ECtHR found a violation of Article 6 of the

Convention (access to court), on account of the premature termination of the applicants’ terms of office as

vice-presidents of a regional court. In response, the Polish Constitutional Tribunal delivered two judgments

113

declaring that Article 6(1) of the Convention was incompatible with the Constitution (i) to the extent that the

term “court” used in that provision referred to it, (ii) in so far as it conferred on the ECtHR the competence to

assess the legality of the election of judges to the Constitutional Tribunal, and (iii) because it considered that

the organisation and jurisdiction of domestic courts and the appointment of judges should be left to the

competence of the State Party. Poland has recently informed the ECtHR Court Registry that it will not comply

with an interim measure under Rule 39 of the Rules of Court issued in cases relating to judicial reform

Leszczyńska-Furtak v. Poland, Gregajtys v. Poland and Piekarska-Drążek v. Poland.

114

Successive decisions

of the Committee of Ministers have recalled the clear unconditional obligation on Poland to comply with

binding final judgments of the ECtHR in line with its obligation under Article 46(1) of the Convention,

115

and

deplored the authorities’ position that the European Court acted beyond its legal authority in adopting the Xero

Flor judgment. It is incumbent on Poland to interpret and, where necessary, amend its laws in such a way as

to avoid any repetition of the violations found by the ECtHR in these cases. Unfortunately, this has not

occurred to date, notwithstanding the exceptional procedure of an inquiry by the Secretary General having

been launched under Article 52 of the Convention.

116

62. The judgments in the Sejdić and Finci v. Bosnia and Herzegovina

117

group concern discrimination

against persons belonging to groups other than the “constituent peoples” of Bosnia and Herzegovina (namely

Bosniaks, Croats and Serbs) as regards their right to stand for election to the House of Peoples and the

109.

Application No. 4907/18, judgment of 7 May 2021.

110. The ECtHR found, in particular, that the election of certain judges to the Constitutional Tribunal was irregular as it

was not in conformity with the Polish constitutional provisions relating to the election of judges to the Constitutional Court.

Judges had already been elected by the previous Sejm (just not approved by the President) therefore it was inappropriate

for the new Sejm to seek to re-elect different judges in their place. These irregularities infringed the applicant company’s

right to a tribunal established by law, in violation of Article 6 of the Convention, given the participation of irregularly

appointed judges in judicial deliberations concerning its constitutional complaint

111. Reczkowicz v. Poland, judgment of 22 July 2021. The cases in this group include Broda and Bojara v. Poland,

Application no. 26691/18, judgment of 29 June 2021; Reczkowicz v. Poland, Application No. 43447/19, judgment of 22

July 2021; Dolińska-Ficek and Ozimek v. Poland, Applications Nos. 49868/19 and 57511/19, judgment of 8 November

2021 and Advance Pharma Sp. z o.o. v. Poland, Application No. 1469/20, judgment of 3 February 2022.

112. Broda and Bojara v. Poland, judgment of 29 June 2021.

113. K 6/21 and K 7/21.

114. Press release from the ECtHR.

115. The most recent Xero Flor and Reczkowicz decisions were adopted at the CM-DH meeting in December 2022.

116. On 7 December 2021, the Secretary General initiated a Procedure in accordance with Article 52 of the Convention

following the judgments of the Polish Constitutional Court in the case K6/21 and subsequently the case K7/21. The report

concluding the procedure (SG/Inf(2022)39) was published on 9 November 2022. It concluded that as a result of the

findings of unconstitutionality in judgment K6/21, the obligation of Poland under the European Convention on Human

Rights to ensure the enjoyment of the right to a fair trial by an independent and impartial tribunal established by law to

everyone under its jurisdiction had not been fulfilled. Action is required by Poland to comply with its international

obligations, which include ensuring that its internal law is interpreted and, where necessary, amended in such a way as to

avoid any repetition of the same violations.

117. Application No. 27996/06, judgment of 22 December 2009 (Grand Chamber), and three other judgments: Zornić v.

Bosnia and Herzegovina, Application No. 3681/06, judgment of 15 July 2014; Šlaku v. Bosnia and Herzegovina,

Application No. 56666/12, judgment of 26 May 2016 and Pilav v. Bosnia and Herzegovina, Application No. 41939/07,

judgment of 9 June 2016.

Doc. 15742 Report

Presidency of Bosnia and Herzegovina (violations of Article 1 of Protocol No. 12 (ETS No. 172)). The

Committee of Ministers has followed this group of cases very closely, calling on the authorities and political

leaders to bring the constitutional and legislative framework into line with Convention requirements.

Notwithstanding the Committee of Minister’s interventions and the extensive support offered to the authorities

by both the Council of Europe and the European Union (addressing the judgment is one of the 14 priorities for

the accession of Bosnia and Herzegovina to the European Union),

118

it is of deep concern that the elections

of 2010, 2014, 2018 and 2022 were based on what has been described as a “discriminatory electoral system

in clear violation of the requirements” of the Convention.

119

After a government was formed at the end of

December 2019 following the 2018 elections, the Minister of Foreign Affairs of Bosnia and Herzegovina took

part in the 1369th meeting (DH) in March 2020 and stated that “the matter would be examined within the

parliamentary framework”. However, the particularities of this case stem from the constitutional arrangements

resulting from the Dayton agreement and the existing political system in Bosnia and Herzegovina. It is not

surprising that despite efforts to reach an agreement on constitutional and electoral amendments, no

consensus among the political leaders could be reached and the 2022 elections also took place following a

discriminatory electoral system in violation of the Convention requirements. The Venice Commission has

produced numerous opinions on the subject, notably calling on the people and politicians of Bosnia and

Herzegovina to gradually replace ethnic representation mechanisms with representation based on the

citizenship system.

120

63. I have a growing concern over the reluctance of certain member States to implement the Court's

judgments. It is more than obvious that domestic politics play a significant role in this context. The adoption by

the Russian Federation’s legislative authorities of constitutional amendments which put a question mark on

the country's obligations to implement the Court's judgments, the political or structural obstacles emanating

from the ethnicity-based political system in Bosnia and Herzegovina, the Turkish and Azerbaijani authorities’

reluctance to implement the Court’s judgments touching upon “political” issues, or the recent stand of the

Polish authorities relating to interim measures of the European Court of Human Rights and to the reform of

the judiciary, are all stark examples.

8. States having the largest numbers of cases pending implementation before the Committee of

Ministers

64. For this report, I have focussed on the five States having the largest number of cases pending

implementation – as well as the Russian Federation – given that these six States together have such a

significant proportion of the overall cases pending implementation. Moreover, considering the cases and

challenges of these States can help to highlight the challenges and potential improvements of benefit to all

States.

8.1. Türkiye

65. In relation to Türkiye, I set out the details of the major cases in an information note.

121

According to the

Annual Report 2021 on the Execution of Judgments, Türkiye has the second largest number of cases pending

execution (510) of Council of Europe member States, with the largest number of leading cases (139) and the

second largest number of repetitive cases (371).

122

Türkiye was also first in relation to the number of cases

closed during 2021 (222). For 2022, the case numbers look to be similar, with 480 cases pending execution

(ranking Türkiye as third), with the largest number of leading cases (126) and the second largest number of

cases closed during 2022 (107).

123

66. It is important to note that the number of Turkish pending cases has drastically diminished in recent

years, in particular as concerns repetitive cases (for example where individual measures have been

addressed or became impossible to perform due to the application of the statute of limitations in Turkish law).

However, the number of leading cases (which indicate systemic issues) remains high, and Türkiye has a large

118.

European Commission, Commission Opinion on Bosnia and Herzegovina’s membership of the European Union,

SWD(2019)222, 29 May 2019.

119. Decision adopted at the 1324 meeting (DH), 20 September 2018, CM/Del/Dec(2018)1324/4, paragraph 1.

120. CDL-AD(2005)004-e, “Opinion on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High

Representative” adopted by the Venice Commission at its 62nd plenary session (Venice, 11-12 March 2005).

121. AS/Jur(2023)06, op. cit.

122. Annual Report 2021.

123. See the Annual Report 2022 issued after this explanatory memorandum was drafted.

Doc. 15742 Report

number of leading cases that have been pending for over 5 years (78). Leading cases often require significant

general measures in order to be resolved, such as legislative change or improvements to the independence of

the judiciary and the functioning of the rule of law.

67. There has been recent progress on cases concerning property rights, domestic violence, and

compensation for medical negligence. However, political will is required to make the changes needed to

address cases relating to freedom of expression, freedom of association and the right to liberty (Articles 5, 10

and 11 of the Convention). Key groups of cases relate to freedom of expression;

124

the independence of the

judiciary

125

and the functioning of the justice system; freedom of thought, conscience and religion;

126

freedom

of assembly;

127

and the consequences of the 1974 Turkish military intervention in Cyprus.

68. The Kavala, Demirtaş and Yüksekdağ Şenoğlu cases are of particular interest given the focus of the

Committee on Legal Affairs and Human Rights for this report on Article 18 cases relating to human rights

violations for politically motivated reasons. Reforms of the composition of the Council of Judges and

Prosecutors, in line with the Venice Commission Opinion, would be key to ensuring the independence of the

judiciary. The continued failure to comply with the Article 46(1) and 46(4) judgments of the ECtHR in the case

of Kavala is of particular concern for respect of the Council of Europe’s human rights system and the rule of

law as a whole.

69. The Bati group of cases,

128

relating to the ineffectiveness of investigations into torture or ill-treatment

by members of security forces could be of special interest to our committee given its ongoing work on the

report on systemic torture. The Cyprus v. Turkey case is also of particular interest given the committee’s focus

for the present report on interstate cases.

70. The Gurban group of cases

129

concerns violations of the prohibition of torture and inhuman or

degrading treatment or punishment on account of the applicants’ sentences to aggravated life imprisonment

without any prospects of release or any adequate review mechanism of these sentences (Article 3 of the

Convention). This requires a review mechanism in light of the standards already set out by the Court. In the

case of Öcalan v. Turkey (No. 2) the Court further found a violation of Article 3 in relation to the applicant’s

conditions of detention prior to 17 November 2009.

71. During the hearing in the committee, Mr Ahmet Yıldız, Chairperson of the Turkish delegation to the

Assembly, underlined that 89% of ECtHR judgments against Türkiye had been implemented, with 107 cases

being closed in 2022. The Kavala case remained a political priority for the authorities. In relation to Cyprus v.

Turkey, he recalled that the question of living conditions for Greek Cypriots in the Karpasia/Karpas region as

well as questions relating to the Loizidou case had been closed and that the Committee on Missing Persons

was continuing its work. Mr Hacı Ali Açikgül, Head of the Human Rights Department in the Ministry of Justice,

underlined the good co-operation between his department and the Department for the Execution of

Judgments of the Court and measures taken to address certain judgments.

8.2. Romania

72. I undertook a fact-finding visit to Romania on 15-16 November 2022 and my information note contains

full details of the visit, the challenges and major cases of interest.

130

The focus of the visit was (1) institutional

capacity in Romania for implementing ECtHR judgments; (2) judgments relating to mental health conditions,

mental capacity and people with learning difficulties;

131

(3) prison conditions;

132

(4) other judgments including

those relating to restitution cases;

133

and enforcement of domestic judgments.

134

I am very grateful to all I

met with for their time and useful insights into the challenges and efforts being made to implement judgments

of the European Court of Human Rights.

124.

Altug Taner Akcam v. Turkey – see here for the status of execution. Öner and Türk v. Turkey – see here for the

status of execution. Nedem Şener v Turkey. Vedat Şorli v. Turkey. Dink v. Turkey – see here for the status of execution.

Ahmet Yıldırım v. Turkey – see here for the status of execution.

125. Alparslan Altan v. Turkey – see here for the status of execution.

126. Izzettin Doğan v. Turkey – see here for the status of execution. Ülke v. Turkey – see here for the status of execution.

Association for Solidarity with Jehovah’s Witnesses and Others v. Turkey – see here for the status of execution.

127. Oya Ataman v. Turkey – see here for the status of execution. Işıkırık v. Turkey – see here for the status of execution.

128. Batı and others v. Turkey – see here for the status of execution.

129. Gurban v. Turkey.

130. AS/Jur(2023)02, “The Implementation of judgments of the European Court of Human Rights – 11

report –

Information note following the rapporteurs visit to Romania”, November 2022.

131. Centre for Legal Resources on behalf of Mr Valentin Campeanu v. Romania – see here for the status of execution;

Parascineti v. Romania – see here for the status of execution. Cristian Teodorescu v. Romania – see here for the status of

execution.

Doc. 15742 Report

73. According to the Annual Report 2021 on the Execution of Judgments, Romania has the third largest

number of cases pending execution (409) of Council of Europe member States, and the second largest

number of leading cases pending execution (106). Romania was seventh in relation to cases closed during

2021 (45). The latest figures for 2022 do not seem to be showing improvements, with 509 cases pending

execution (ranking Romania as second), with the second largest number of leading cases (113) but only the

eighth largest number of cases closed during 2022 (37).

135

Romania has the largest number of

unimplemented ECtHR judgments amongst EU member States.

74. During my visit, I heard about a significant number of legislative and practical reforms being

implemented at national level, especially in the field of justice and social care. I was pleased to hear about the

important progress being made, in particular to deinstitutionalise a number of people in the care system and to

better support living in the community. Many of the sorts of reforms needed to grapple with the challenges

identified by the ECtHR judgments require significant investment. I would therefore encourage maximum use

of funds and expertise available from international organisations, to help to deliver on these challenging but

important reforms.

75. Most interlocutors considered that the government was efficient at paying just satisfaction, but that

there were greater delays in taking action to deal with general measures to address the root causes behind a

human rights violation. During our meetings there was apparent general acceptance and acknowledgement

that Romania had not yet achieved a sufficient focus on implementing ECtHR judgments in terms of

resources, institutional mechanisms, and political weight and priority given to implementation. This was

especially obvious when compared to judgments of the Court of Justice of the European Union which were

given a greater priority due to the financial penalties attached to their non-implementation through

infringement proceedings of the Court of Justice of the European Union.

76. The responsibility for co-ordinating the implementation of ECtHR judgments in Romania lies with the

Agent to the ECtHR, within the Ministry for Foreign Affairs, whose office had, for a number of years, been

sorely understaffed in view of the significant case-load they faced (both in terms of litigating cases before the

ECtHR and in co-ordinating the implementation of judgments). I was very pleased to hear of recent plans to

address these concerns, through recent recruitment exercises. As well as staffing, there was also the

recognition of the need for improved political co-ordination from those within government with the power to

drive through reforms needed to address ECtHR judgments. Recent steps being taken to provide the

necessary co-ordination from central Government are therefore welcome. During my visit, I was informed that

three separate working groups/task forces were very recently established by the Chancellery Office of the

Prime Minister to co-ordinate work in relation to (a) all the mental health/mental capacity cases; (b) the

enforcement of domestic judgments (Sacaleanu) cases; and (c) the restitution cases, with further co-

ordinating working groups for other topics and groups of judgments to be added as this co-ordination work

progressed.

77. Overall, whilst there is a very good knowledge of human rights and the judgments in some areas,

further work is arguably needed to embed more of a human rights culture in other areas. Ideas such as a

"focal point" for human rights within each Ministry could assist in this work.

136

78. These new initiatives seem very positive and, in my opinion, seem to be a very welcome response to

deliver what is needed to enable Romania to best tackle the challenges of implementing some of these

groups of ECtHR judgments. I can only encourage all involved in driving forward this important work and hope

that these changes will facilitate improvements in addressing these complex ECtHR judgments. Ideas for

improving transparency for the implementation of ECtHR judgments, and involving all actors, including civil

society, in the new systems for implementing judgments could further help to improve the understanding of

132.

There is a series of Romanian cases relating to prison conditions, including overcrowding and poor conditions in

prisons and police detention facilities (Bragadireanu v. Romania and Rezmives v. Romania – see here for the status of

execution), as well as deficiencies in the mental health treatment and care in detention (Ticu v. Romania – see here for the

status of execution), poor conditions of detention for life-sentenced prisoners, relating to isolation and systemic

handcuffing, (Enache v. Romania – see here for the status of execution) and release on humanitarian grounds (Dorneanu

v. Romania – and see here for the status of execution).

133. Strain v. Romania and Maria Atanasiu v. Romania – see here for the status of execution.

134. Sacaleanu v. Romania – see here for the status of execution.

135. See the Annual Report 2022 issued after this explanatory memorandum was first drafted.

136. Designating “focal points” or “reference contacts” in the relevant national authorities is recommended in CM

Recommendation CM/Rec(2008)2 to member States on efficient domestic capacity for rapid execution of judgments of the

European Court of Human Rights (at point 1). Article 7 of the recommendation specifically refers to training such actors.

Doc. 15742 Report

the steps being taken to address ECtHR judgments, and to ensure they respond to the needs of society. I

would encourage thought to be given to ensuring the involvement of as many stakeholders as possible,

including the Ombudsman’s Office and civil society, in these new processes.

79. In relation to parliamentary scrutiny of the implementation of ECtHR judgments, this had perhaps

diminished somewhat since the Assembly Resolution 1823 (2011) “National parliaments: guarantors of human

rights in Europe”. Parliamentarians, during our meeting, committed to write a memorandum to their permanent

Bureau to request improvement of the democratic control of parliament over the executive in relation to the

execution of judgments. Ideas were discussed such as a committee specifically focussing on the

implementation of ECtHR judgments and requesting an annual or six-monthly report from the government on

the implementation of ECtHR judgments. I welcome this commitment and strongly encourage our colleagues

in this work.

80. Overall, my impression is that there is a great deal of human rights expertise within both government

and civil society. The Romanian Government is aware of its need to comply with its obligations and to address

the institutional challenges posed by the number of unimplemented ECtHR judgments and is in the process of

developing good initiatives to strengthen the institutional capacity to implement these judgments. All of these

initiatives draw on the Committee of Ministers’ Recommendation CM/Rec(2008)2 to member States on

efficient domestic capacity for rapid execution of judgments of the European Court of Human Rights and

sound like examples of good practices for member States grappling with the implementation of ECtHR

judgments and I encourage the Romanian authorities in this work. I would also encourage creative thinking to

secure the funding, expertise and commitment that are necessary to deliver on some of the reforms needed.

In addition, I would also support a more human rights focussed approach to be embedded within the Ministry

of Health and the provision of mental health care. Restitution cases are a subject of concern; as I was told

during my fact-finding mission, local authorities which are involved in the process of restitution proved to be

reluctant and sometimes unco-operative. Finally, I would urge the authorities to fully draw on Council of

Europe expertise, including in technical cooperation programmes and projects. I look forward to hearing

further about the progress of the implementation of these cases once these new processes start delivering

tangible results.

8.3. Ukraine

81. In relation to Ukraine, I set out the detail of recent statistics and cases in my information note.

137

According to the Annual Report 2021 on the Execution of Judgments, at the end of 2021, Ukraine had the

largest number of cases pending execution (638) of current Council of Europe member States, with the

largest number of repetitive cases (532) and the second largest number of leading cases (106).

138

Ukraine

was second in relation to the number of cases closed during 2021 (126). At the end of 2022, the number of

cases had increased with 716 cases pending execution (99 leading cases and 617 repetitive cases) and 67

cases having been closed during the year, ranking Ukraine as having the largest number of cases pending

execution but only the third largest number of leading cases.

139

82. It goes without saying that the implementation of ECtHR judgments, as for other public functions,

necessarily faces specific challenges in light of Russian’s war of aggression against Ukraine, and I am

conscious of the very difficult context and the huge challenges that Ukraine is currently facing not least in

preparing the way for reconstruction of the country, which will be greatly facilitated by ensuring respect for the

rule of law and protection of human rights. It is therefore encouraging that throughout 2022 the Ukrainian

authorities have continued to collaborate closely with the Department for the Execution of Judgments and to

make regular submissions to the Committee of Ministers on individual cases and groups of cases (over

50 action plans and reports were submitted), thus expressing their commitment to full compliance with the

Convention.

140

I was also positively struck by the detailed information provided by the Ukrainian

representatives during the exchange of views with the Committee on Legal Affairs and Human Rights.

83. Given the number of cases involved, the complex and structural nature of some of the issues raised in

those judgments, and the length of time taken to resolve many of these groups of cases, there is a significant

number of outstanding issues that require additional attention, further measures and political will. It is also

137.

AS/Jur(2023)04, The Implementation of judgments of the European Court of Human Rights – 11

report –

Information note in preparation of a hearing in relation to Ukraine.

138. Annual Report 2021.

139. See the Annual Report 2022 issued after this explanatory memorandum was drafted.

140. See for example: “Examination of the cases concerning Ukraine – Department for the Execution of Judgments of the

European Court of Human Rights” (coe.int).

Doc. 15742 Report

worth noting that many leading cases date from some time ago, before the “revolution of dignity” in February

2014, meaning that the political, legislative and administrative context has often significantly evolved since

then, even if the underlying issues have not yet been entirely resolved.

84. We cannot therefore ignore that there are judgments in certain key groups of cases covering a very

wide range of human rights issues, such as torture, hate crimes,

141

prison conditions,

142

irreducible whole life

sentences,

143

unlawful pre-trail detention,

144

or independence of the judiciary

145

which remain

unimplemented. However the effective functioning of the justice system and respect for the rule of law are

common threads that are prevalent across many of these groups of cases. The Committee of Ministers has

noted that a number of the outstanding groups (non-enforcement or delayed enforcement of domestic

judgments against the State;

146

independence of the judiciary; length of judicial proceedings

147

) reveal major

structural deficiencies adversely affecting the functioning of the justice system and the rule of law in Ukraine,

depriving people of effective access to justice and thus eroding their trust in the judicial system.

148

85. The developments in the Lutsenko and Tymoshenko cases are of particular interest given the focus of

the Committee on Legal Affairs and Human Rights for this report on Article 18 cases relating to the abuse of

power for politically motivated reasons. Three groups could also be of potential interest to the committee for its

current work on systemic torture: the Kaverzin Group

149

which relates to systemic use of torture and ill-

treatment by the Ukrainian police in order to extract confessions; the Yaremenko group concerning the use of

evidence obtained by torture; and the Karabet group

150

on torture of prisoners by special forces either as

punishment or during training exercises in prisons.

86. There seem to be a significant number of instances across different groups of cases where the

Ukrainian authorities have been unable to pay just satisfaction due to an inability to obtain the bank details of

the applicants. It might be useful to reflect on how to improve this situation – and in particular to ensure such

money is available as and when the applicants are eventually located so that supervision of these cases can

eventually be closed.

87. Another recurring theme is the lack of an effective domestic remedy for breaches of human rights

including for structural problems that lead to multiple repetitive violations by the Court. The lack of such

mechanisms and ensuing violations of Article 13 seem to be a regular feature of complex cases in Ukraine

and should be a priority for the Ukrainian authorities to address.

88. Ms Iryna Mudra, Vice-Minister of Justice, noted that 67 cases against Ukraine had been closed during

2022 and the role of the Government Agent had been reinforced. Ms Sokorenko, Government Agent before

the ECtHR, mentioned the laws adopted in 2022 to remedy the problem of ill-treatment by the police, of the

legality and length of pre-trial detention, and indeterminate life imprisonment. Other work had been pursued in

developing plans to deal with prison overcrowding. However, challenges remained, such as the Burmych

cases. She noted that damage caused by the war of aggression complicated matters, for example in relation

to prison movements and the safety of certain prisons, where files were destroyed, and the general pressure

on the justice system. I can only commend the ongoing work to address ECtHR judgments even in such

difficult circumstances and suggest that the Council of Europe provides ample support to Ukraine in dealing

with these challenges.

89. The situation in Ukraine is a complex one vis-à-vis other countries due to the Russian war of

aggression and the consequences for the Ukrainian authorities and society as a whole. The challenge though

is to prove that democracy and the rule of law should always prevail notwithstanding the huge barriers and

challenges.

141.

Fedorchenko and Lozenko v. Ukraine – see here for the status of execution. Such cases included victims of Roma

and Armenian origin, as well as Jehovah’s Witnesses.

142. Nevmerzhitsky v. Ukraine – see here for the status of execution.

143. Petukhov (no 2) v. Ukraine – see here for the status of execution.

144. Ignatov v. Ukraine (ex Kharchenko) – see here for the status of execution.

145. Oleksandr Volkov v. Ukraine – see here for the status of execution.

146. Zhovner v. Ukraine, Yuriy Nikolayevich Ivanov v. Ukraine and Burmych v. Ukraine – see here for the status of

execution.

147. Svetlana Naumenko v. Ukraine and Merit v. Ukraine – see here for the status of execution.

148. See CM/Del/Dec(2021)1411/H46-44, CM/Del/Dec(2021)1411/H46-41, CM/Del/Dec(2021)1411/H46-42.

149. Kaverzin v. Ukraine – see here for the status of execution.

150. Karabet and Others v. Ukraine – see here for the status of execution.

Doc. 15742 Report

8.4. Hungary

90. In relation to Hungary, I set out the detail of the most significant cases in the Information Note.

151

According to the Annual Report 2021 on the Execution of Judgments, Hungary has the fifth largest number of

cases pending execution (265) of Council of Europe member States.

152

Hungary was fourth in relation to

numbers of cases closed during 2021 (66). For 2022, these figures look to be improving with 219 cases

pending execution (ranking Hungary fifth); and 109 cases having been closed during 2022 (of which 4 were

leading cases), meaning that Hungary closed the largest number of cases during 2022.

153

Hungary has the

second largest number of unimplemented ECtHR judgments amongst EU member States.

91. Key groups of cases relate to poor conditions of detention in prisons;

154

inadequate procedures for

processing asylum seekers before returning them to Serbia;

155

excessively lengthy and unlawful pre-trial

detention;

156

excessive length of civil, criminal and administrative proceedings and the lack of an effective

remedy;

157

independence of the judiciary;

158

irreducibility of life sentences;

159

discrimination against Roma

children in education;

160

violations of the right to life and the right to be free from torture and inhuman or

degrading treatment by security forces;

161

and the inadequacy of secret surveillance legislation.

162

92. During the exchange of views with the committee, Mr Barna Zsigmond, Vice-Chairperson of the

Hungarian delegation to the Assembly highlighted the efforts that had been made to implement pilot cases

and in particular recent progress relating to the overcrowding of prisons, including through the introduction of

both preventive and compensatory mechanisms. I was pleased to hear that in the largest group of cases

pending implementation which was related to the excessively lengthy and unlawful pre-trial detention,

significant progress had been accomplished in 2021 thanks to the introduction of an appeal against

excessively lengthy procedures and other legislative changes. Mr Zsigmond also noted recent co-operation

with the Council of Europe, such as through a conference in October 2022 relating to effective investigations

into allegations of mistreatment by the police. He highlighted that the Ministry of Justice regularly submitted

information to parliament on the implementation of ECtHR judgments.

8.5. Azerbaijan

93. As concerns Azerbaijan, I undertook a fact-finding visit to Baku from 20 to 23 November 2022 and my

information note

163

contains full details of the visit, the challenges and major cases pending implementation. I

am very grateful to all I met with for their time and useful insights into the challenges and efforts being made to

implement judgments of the European Court of Human Rights. According to the Annual Report 2021 on the

Execution of Judgments, Azerbaijan has the fourth largest number of cases pending execution (271) of

Council of Europe member States. However, Azerbaijan was only 20th in the number of cases closed in that

year (12).

164

94. Major cases are those related to Article 18 judgments (as set out above) in: the Mammadli group

165

;

the Muradova group

166

relating to excessive use of force and ill-treatment by the police during

demonstrations; the Mammadov (Jalaloglu) group

167

relating to ill-treatment and/or torture during arrest and

police custody and the lack of adequate criminal investigations relating to allegations of torture or

mistreatment; the Ramazanova group,

168

relating to the freedom of association (Article 11 of the Convention),

151.

AS/Jur(2023)03, The Implementation of judgments of the European Court of Human Rights – 11

report –Information

note in preparation of a hearing in relation to Hungary.

152. Annual Report 2021.

153. See the Annual Report 2022 issued after this explanatory memorandum was drafted.

154. István Gábor Kovács v. Hungary and Varga and others v. Hungary – see here for the status of execution.

155. Ilias and Ahmed v. Hungary – see here for the status of execution.

156. XY v. Hungary – see here for the status of execution.

157. Gazsó v. Hungary – see here for the status of execution.

158. Baka v. Hungary – see here for the status of execution.

159. Laszlo Magyar v. Hungary – see here for the status of execution.

160. Horvath and Kiss v. Hungary – see here for the status of execution.

161. Gubacsi v. Hungary – see here for the status of execution.

162. Szabo and Vissy v. Hungary – see here for the status of execution.

163. AS/Jur(2023)01, The Implementation of judgments of the European Court of Human Rights – 11

report –Information

note following the rapporteurs visit to Azerbaijan, November 2022.

164. The Annual Report 2022, issued after this explanatory memorandum was drafted, ranks Azerbaijan as having the

fourth largest number of unimplemented cases (285).

165. Mammadli v. Azerbaijan – see here for the status of execution.

166. Muradova v. Azerbaijan (2009) – see here for the status of execution.

167. Mammadov (Jalaloglu) v. Azerbaijan (2007) – see here for details on the status of execution.

Doc. 15742 Report

and impediments to registering associations that acted as a barrier to an effective civil society; the Mirzayev

group

169

relating to internally displaced persons which make up a significant proportion of Azerbaijan’s

unimplemented cases; the holding of demonstrations and the right to protest, for example as part of the

Gafgaz Mammadov group,

170

freedom of the press, including the Khadija Ismayilova group,

171

and the

Mahmudova and Agazade group,

172

concerning the deterrent effect on free speech of a potential long prison

sentence for defamation. I strongly encourage swift legislative action to remove the possibility of detention in

defamation cases.

95. During my visit I heard about a significant number of legislative and practical reforms adopted at the

national level, especially in the field of justice, as well as the recent co-operation with the Department for the

Execution of Judgments in advancing action to address the implementation of ECtHR judgments. I was also

pleased to hear about recent efforts in 2022 in closing 25 ECtHR cases under the supervision of the

Committee of Ministers and submitting 30 action reports. This is part of a positive trend: Azerbaijan closed 6

cases in 2020, 12 in 2021 and 35 in 2022, and further progress in closing cases can be hoped for in the

coming year.

96. I also heard how the Presidential Administration had established, in early 2022, a working group on the

execution of judgments, including the most relevant agencies for this work. However, there was a significant

caseload and backlog of cases, and perhaps less of an appreciation of the measures needed to address

ECtHR judgments across the government more generally. Interlocutors noted greater delays in taking action

to address general measures or indeed individual measures. Further consideration should perhaps be given

to how to ensure swift action in resolving individual measures following ECtHR judgments and to ensure that

all unnecessary administrative obstacles to enforcing ECtHR judgments are removed.

97. Overall, my impression is that we can expect more progress and that the Azerbaijani authorities seem

to be taking positive steps to better co-ordinate and to accelerate action in addressing outstanding ECtHR

judgments – including through the deployment of a working group on the execution of judgments, as well as

through co-operation programmes and projects run in collaboration with the Council of Europe’s Department

for the Execution of Judgments. I consider that it may, however, be helpful to reflect on what more might be

done to improve the domestic accountability of the government for addressing ECtHR judgments in a timely

manner, perhaps through giving a greater role to civil society, the parliament and ombudsman, whose remit

could perhaps include supervising the implementation of human rights judgments or even to have the right of

legislative initiative to help in resolving human rights issues. Most interlocutors considered that the

government was efficient at paying just satisfaction but that quicker mechanisms are needed for addressing

individual measures, and that there is a need to incentivise timely action to address general measures that are

needed to prevent the recurrence of human rights violations. I encourage the timely action of the Azerbaijani

authorities, including the Supreme Court, in addressing the outstanding cases as swiftly as possible, in

particular to promote the independence of the judiciary and core democratic values such as freedom of

expression and of association. I look forward to hearing about a much more significant number of cases being

closed in the year to come as these new processes should yield some positive results.

8.6. Russian Federation

98. The Russian Federation poses a particular problem, given the exceptionally large number of

unimplemented ECtHR judgments; its resistance to implementing a significant number of judgments even

prior to 2022; its involvement in the majority of current interstate cases – or cases linked to conflict or post-

conflict situations – due to its (often military) interference in countries in the region (for example Georgia v.

Russia, Catan and Others v. Moldova and Russia, Mozer v. Moldova and Russia, as well as a number of

cases pending before the Court relating to the downing of flight MH17, the situation in Georgia, the various

interferences in the sovereignty of Ukraine including the ongoing war of aggression); the persistent rule of law

issues in the country; the intolerance towards democracy and free speech; as well as its recent expulsion from

the Council of Europe following its full-scale military war of aggression against Ukraine.

99. According to the Annual Report 2021, as of 31 December 2021, of the 5 533 cases pending

implementation under the supervision of the Committee of Ministers, by far the largest number of pending

cases related to the Russian Federation (1 942), thus accounting for 35% of all cases.

173

The current figure is

168.

Ramazanova v. Azerbaijan (2007).

169. Mirzayev v. Azerbaijan (2009).

170. Gafgaz Mammadov v. Azerbaijan (2015) – see here for the status of execution.

171. Khadija Ismayilova v. Azerbaijan – see here for the status of execution.

172. Mahmudov and Agazade v. Azerbaijan (2009) and see here for the status of execution.

Doc. 15742 Report

closer to 2 395 cases pending implementation.

174

Moreover, notwithstanding Russia ceasing to be a member

of the Council of Europe, 22.4% of all applications pending before the ECtHR at the end of 2022 were against

the Russian Federation.

175

100. The Russian Federation ceased to be a member of the Council of Europe as from 16 March 2022

(Resolution CM/Res(2022)2), and a Party to the Convention as from 16 September 2022. The Registrar of the

Court issued a Press Release (ECHR 036(2023), 3 February 2023) and confirmed that according to Article 58

of the Convention, the European Court remained competent to deal with applications directed against Russia

in relation to acts and omissions capable of constituting a violation of the Convention provided that they

occurred up until 16 September 2022. In relation to the implementation of judgments of the ECtHR, the

Russian Federation remains bound by its obligations under international law to respect human rights and to

comply with final judgments against it under Article 46(1) of the Convention. Thus the Committee of Ministers

continues to supervise the execution of ECtHR judgments and friendly settlements concerning the Russian

Federation (paragraph 7 of Resolution CM/Res(2022)3). To this end it is important that efforts continue to

ensure that people in Russia, and people in countries affected by the Russian Government’s actions, are able

to obtain redress following a finding of a violation of the Convention, and to have their human rights respected.

101. It is regrettable that, since 3 March 2022, the Russian authorities have ceased all communication with

the Secretariat. Moreover, a new Russian law regarding the execution of judgments, that entered into force on

11 June 2022 further confuses the situation domestically. That law sought to argue that due to the exclusion

of the Russian Federation from the Council of Europe, judgments of the European Court which became final

after 15 March 2022 should not be enforced, nor should they serve as a ground for the reopening of

proceedings domestically. This ignores the clear legal obligation of Russia to comply with binding final

judgments of the ECtHR. In relation to the payment of just satisfaction for judgments prior to this day, the

Russian authorities stated that payment will be made in roubles, only to bank accounts in Russia, and

payment would be made only until the end of 2022.

102. I welcome the carefully thought-through strategy that has been developed on how the Committee of

Ministers and the Department for the Execution of Judgments of the European Court of Human Rights will

approach Russian cases – including continuing to write to the Russian authorities to request information on

cases; closing cases that are implemented (where possible); co-operating closer with civil society as a means

of obtaining up-to-date information on the situation in Russia and in areas under Russian effective control; co-

operating closer with other international organisations where there are useful synergies, for example as

concerns enforced disappearances in Chechnya and the work of the United Nations Working Group on

Enforced or Involuntary Disappearances (the Khashiev group of cases), or relating to protecting women

against domestic violence and the work of the UN Committee on the Elimination of Discrimination against

Women (the Volodina group of cases). I also welcome the initiatives relating to the effective communication of

information to the public in relation to the state of Russian implementation of ECtHR judgments, the register of

outstanding just satisfaction awards,

176

and the stock-taking exercise.

103. Many of the cases continue to be of relevance to free speech and democracy in Russia, for example

the Lashmankin

177

group of cases, which prove that the structural problem is still persisting in Russia on that

issue. Similarly, the blocking of online resources (Vladimir Kharitonov group of cases) is of continuing

relevance given that thousands of websites have been blocked mostly for their opposition against the war in

Ukraine.

178

104. The main cases or groups of cases pending implementation by the Russian Federation include poor

conditions of detention in remand centres (Kalashnikov group of cases); excessive length of remand detention

and other violations of Article 5 of the Convention (Klyakhin group of cases);

179

acts of torture and ill-

treatment during custody (Mikheyev group of cases); repeated bans on gay pride events (the Alekseyev

case); secret, extrajudicial extraditions and expulsions (Garabayev group of cases); continuing human rights

violations in the North Caucasus region of the Russian Federation, mostly relating to the actions of security

173.

Annual Report 2021, pp. 11 and 37.

174. As of 6 March 2023.

175. Pending applications.

176. Register of outstanding just satisfaction in respect of the Russian Federation.

177. Lashmankin group of cases (see the notes and the draft decisions CM/Notes/1459/H46-21).

178. Vladimir Kharitonov group of cases (see the notes and the draft decisions CM/Notes/1459/H46-23).

179. In particular, the issue of individual measures in the cases Pichugin v. Russia (No. 1), Application No. 38623/03,

judgment of 23 October 2012, and Pichugin v. Russia (No. 2), Application No. 38958/07, judgment of 6 June 2017 (release

of the applicant) and in Khodorkovskiy and Lebedev v. Russia, Application No. 11082/06, judgment of 25 July 2013 (the

lifting of an unlawful damage award).

Doc. 15742 Report

forces in the Chechen Republic (Khashiyev and Akayeva groups of cases),

180

Georgia v. Russia, Catan and

Others v. Moldova and Russia and Mozer v. Moldova and Russia (see the section on interstate cases

above).The Navalnyy v. Russia

181

and Navalnyy (No. 2) v. Russia

182

judgments continue to be important.

The Committee of Ministers continues asking for the latter’s release and refers to his harsh detention

conditions and solitary confinements.

105. The case OAO Neftyanaya Kompaniya YUKOS v. Russia

183

illustrates the problems caused by the

amendments to the Constitution of the Russian Federation that add further obstacles to Russian compliance

with its international obligations under the Convention. In YUKOS, the Court held that there had been various

violations of the Convention concerning tax and enforcement proceedings brought against the applicant oil

company (mainly of Article 6 of the Convention and Article 1 of the Additional Protocol of the Convention). The

Court allocated a total amount of nearly 1.9 billion euros to the shareholders of the applicant company (as

they stood at the time of the company’s liquidation) by way of just satisfaction, to be paid within six months

from the date on which that judgment became final.

184

The just satisfaction is still outstanding although the

costs were paid in 2017. Following an application by the Russian Ministry of Justice, on 19 January 2017, the

Russian Constitutional Court delivered a judgment concluding that it was impossible to implement the Court’s

judgment on just satisfaction in this case without contravening the Russian Constitution

185

(which was due to

the amendments to the Federal Law on the Constitutional Court passed in December 2015)

186

. While the

Russian authorities referred to this decision of the Constitutional Court, the Committee of Ministers stressed

that this did not alter the “unconditional obligation assumed by the Russian Federation under Article 46 of the

Convention to abide by the judgments” of the Court. On 20 January 2020 the Russian President introduced a

bill to the State Duma, proposing amendments to 22 provisions of the Constitution, including an amendment

aimed at adding to Article 79 of the Constitution

187

the following sentence: “Decisions of interstate bodies

adopted on the basis of the provisions of international treaties are not enforceable in the Russian Federation if

they contradict the Constitution”. The amendments were passed in parliament on 10-11 March, signed by the

President on 14 March and approved by the Russian Constitutional Court on 16 March 2020. The Committee

of Ministers has consistently recalled the unconditional obligation to abide by the Court’s judgments and that

provisions of national law cannot justify a failure to perform obligations stemming from international treaties.

9. Conclusions

106. The question of the implementation of judgments of the European Court of Human Rights is not purely

a practical or legal matter. Experience has proved that this issue is primordially a political one and this can be

proved flagrantly in the interstate cases, in the cases falling under violations of Article 18 and in cases where

the execution is lacking because of the unwillingness or reluctance of authorities to comply with final binding

judgments of the Court. Although the execution of ECtHR judgments, according to the Convention, is a matter

above all under the responsibility of the Committee of Ministers, the Assembly’s involvement is indispensable,

and the Assembly has shown that the monitoring it carries out in this field and the political pressure it exerts

provide greater support for the action of the Committee of Ministers and therefore present an added value.

107. As stressed in my previous report, recent reforms have enabled the Committee of Ministers to

successfully close some of the pending cases more quickly, and swift action has been taken notably in

relation to repetitive cases. I particularly commend the diligent work of the Department for the Execution of

Judgments of the European Court of Human Rights in this regard, which grapples with an enormous caseload

in assisting States with the often challenging task of implementing ECtHR judgments.

180.

Khashiyev group of cases (see the notes and the last decisions in CM/Del/Dec(2022)1436/H46-24). Issues relating to

cases concerning the North Caucasus have been considered in separate reports by the Assembly including the report by a

former committee member Mr Michael McNamara (Ireland, SOC), Doc. 14083 of 8 June 2016, and Resolution 2157

(2017) and Recommendation 2099 (2017) “Human rights in the North Caucasus: what follow-up to Resolution 1738

(2010)?” of 25 April 2017. See also the more recent work by Mr Frank Schwabe (Germany, SOC) on “The continuing need

to restore human rights and the rule of law in the North Caucasus region”.

181. Application No. 29580/12, judgment of 15 November 2018 (Grand Chamber).

182. Application No. 43734/14, judgment of 9 April 2019.

183. Application No. 14902/04, judgment of 20 September 2011 (on the merits).

184. Application No. 14902/04, judgment of 31 July 2014 (just satisfaction, Article 41).

185. Case Description in HUDOC-EXEC.

186. See the Venice Commission Opinion CDL-AD(2016)016.

187. According to this provision, “[t]he Russian Federation may participate in interstate organisations and transfer to them

part of its powers according to international treaties and agreements, if this does not involve the limitation of the rights and

freedoms of man and citizen and does not contradict the principles of the constitutional system of the Russian Federation”.

Doc. 15742 Report

108. However, a considerable number of leading cases have still not been executed, which is often due to

deeply rooted problems, whether due to a lack of adequate resources or organisation – or more fundamental

political opposition to reforms. In addition to this, a significant number of cases, including repetitive cases,

continue to be brought adding to the overall caseload of both the Court and the Committee of Ministers. The

sheer number of cases therefore seems likely to persist, with the lion’s share implicating only a handful of

countries. Moreover, frequently, cases become more difficult precisely because of political considerations and

can take a long time to resolve and use a lot of resources. Indeed, many of the cases mentioned in previous

reports have now been pending for over ten years or even more (for example, Cyprus v. Turkey since 2001).

109. As shown in this report, there are still persistent difficulties in the execution of certain judgments linked

to the absence of political will or even an open disagreement with a judgment of the Court, especially when it

comes to interstate cases or cases having interstate features. However, whilst the challenges remain huge,

there has been some welcome progress in individual cases, for example Paksas v. Lithuania.

110. In general, the Committee of Ministers should continue to make use of its usual instruments of peer

pressure such as interim resolutions or repeated examination of cases at its human rights (DH) meetings, not

only to express its political disagreement with the relevant State’s insufficient action, but also to give more

visibility to the issues at stake. In particular, I would encourage more systematic co-operation with National

Human Rights Institutions in the execution process. I also recommend that careful, perhaps creative,

reflection is given to improving the tools available to the Committee of Ministers and the Council of Europe as

a whole, to encourage the timely and effective implementation of ECtHR judgments, especially in complex

cases such as interstate cases.

111. ECtHR judgments, and the supervision of their implementation, have an important role to play in

providing European citizens with confidence in the processes for upholding the rule of law, democracy and

human rights across the European continent. The upset and confusion in Cyprus following the closure of the

Loizidou case

188

illustrates the importance of improved explanations and transparency to explain why a case

is being closed and what this means. This is especially important where general measures will continue to be

considered under another leading judgment. I therefore strongly call on the Committee of Ministers to ensure

that they set out in all interim and final resolutions, their clear, specific reasoning to justify closing supervision

of a case, in accordance with clear and transparent criteria. This should help to improve accountability, and

build understanding and trust in the functioning of the system. European citizens need to be able to

understand how decisions are made and to understand the legitimacy of decision making as part of building

confidence and trust in the ability of the system to promote and protect the rule of law, human rights and

democracy.

112. States Parties to the Convention have achieved a certain progress in ensuring compliance with the

Convention by undertaking important reforms following the Court’s judgments. However, more can be done to

improve structure within States to best ensure the timely implementation of ECtHR judgments and to ensure

full co-operation with the Committee of Ministers, the Department for the Execution of Judgments and other

relevant bodies of the Council of Europe. If the execution measures are not adopted or if they do not provide

redress in practice, this will entail more human rights violations and thus will lead to new applications being

lodged at the Court, followed by new judgments finding more violations of the Convention, leading to a more

rigorous supervision of the Committee of Ministers.

113. I have found in this work that a surprisingly significant amount of delay to implementing ECtHR

judgments is at least in part due to ineffective or under-resourced national mechanisms for implementing

reforms and for co-ordinating the response to ECtHR judgments. There are plenty of examples of guidance as

to best practice available, however, such ideas do not always seem to be implemented. I encourage further

efforts to be made so that States ensure that those responsible for implementing ECtHR judgments have the

necessary resources, authority, and incentives to perform this task swiftly – not least given the imperative of

preventing further human rights violations. To this end, I think it could be useful to consider what mechanisms

(including penalties) could incentivise States to submit relevant information on time to avoid unnecessary

delays due to a lack of attention to implementation.

114. The Russian Federation poses a particular problem, given its resistance to implementing a significant

number of judgments even prior to 2022; its involvement in a vast majority of interstate cases due to its, often

military, interference in countries in the region; the persistent rule of law issues in the country; as well as its

recent expulsion from the Council of Europe following its full-scale military war of aggression against Ukraine.

The Russian Federation remains bound by its obligations under international law to respect human rights and

188.

Loizidou v. Turkey.

Doc. 15742 Report

to comply with final judgments against it under Article 46(1) of the Convention. Efforts must continue to ensure

that people in Russia and in countries affected by Russia’s actions can obtain redress and have their human

rights respected. To this end, I welcome the well thought-through strategy on how the Committee of Ministers

and the Department for the Execution of Judgments will approach Russian cases and notably their approach

to co-operation with civil society and NGOs as well as other international organisations, including the UN and

its special procedures and rapporteurs.

115. The rule of law must be coupled with accountability if it is to have any real effect and States must

assume their responsibility. What has become evident in the drafting of this report is that national and political

priorities often render the judgments of the Court ineffective, and thus human rights illusory. I note that a

significant number of interlocutors have suggested that tricky implementation challenges could be facilitated

by introducing incentives, including the possible imposition of penalties as part of the tools for tackling unduly

delayed implementation of ECtHR judgments, as for the judgments of the Court of Justice of the European

Union. Such ideas should not be ruled out for the future. It is alarming, for example, that the Kavala judgment

remains unimplemented notwithstanding the clear obligation on the Turkish authorities following the Article

46(4) judgment. However, I remain hopeful that with the right attitudes and perseverance we will ensure

respect for the rule of law and human rights across the Council of Europe space.

116. Parliaments have a special role in relation to the implementation of ECtHR judgments, as the Annual

Reports and the above overview of cases show – many judgments concerning complex or structural problems

have not been implemented because of a lack of political will and/or legislative measures. Many national

parliaments have still not established special structures to examine the compatibility of draft legislation with

the Convention and to systematically monitor the implementation of the Court’s judgments concerning their

countries and the implementation of the Convention in general, neither have they organised regular

parliamentary debates on this subject. It is important that we, as parliamentarians, have the possibility to

question governments on their actions related to execution measures, including on the elaboration and

content of action plans/reports. A handbook for parliamentarians entitled “National Parliaments as Guarantors

of Human Rights in Europe” was published in 2018. The Assembly’s role in monitoring the implementation of

the Court’s judgments has been emphasised in its Resolution 2277 (2019) “The role and mission of the

Parliamentary Assembly: main challenges for the future”.

189

The Assembly should continue to promote the

idea of establishing parliamentary structures devoted to ensuring compatibility of draft legislation with the

Convention and the Court’s case law, in line with its previous resolutions such as Resolution 2178 (2017) and

Resolution 1823 (2011). Moreover, we, as individual members of the Assembly, have a special responsibility

for promoting these measures and raising awareness of the Convention standards in our parliaments.

117. I consider that the Assembly should seek to do more, in the coming years, to encourage national

parliaments and parliamentarians to develop the structures and capacity to actively monitor and hold

governments to account for the timely and effective implementation of ECtHR judgments and of the

Convention as a whole. I recommend further initiatives to develop parliamentary capacity for performing this

important democratic function, in furtherance of the respect for the rule of law and human rights. As part of this

I propose that the Assembly steps up its engagement with national parliaments, including through the

involvement of the work of the Sub-Committee on the implementation of judgments of the ECtHR and of the

future rapporteurs dealing with this file.

189.

In paragraphs 5 and 11.1.

Doc. 15742 Report

Appendix – Summary of the hearings held during this reporting cycle

1. On 7 December 2021 the Committee on Legal Affairs and Human Rights held a hearing on the topic of

interstate cases and cases with interstate features, with the participation of Ms Dimitrina Lilovska, Head of

division ad interim, Department for the Execution of Judgments of the European Court of Human Rights

(Council of Europe), and Dr Isabella Risini, Senior research associate at Ruhr-University Bochum, visiting

professor at Augsburg University, Germany.

2. Ms Lilovska focused on interstate cases and individual cases related to unresolved conflicts and post-

conflict situations. She noted that some progress had been made on the execution of the Cyprus v. Turkey

case, relating to the Immovable Property Commission mechanism to deal with the property rights of Greek

Cypriots and the work of the Committee on Missing Persons, to identify the remains of missing persons.

However, progress on other cases remained difficult, such as in Catan – or where situations were still tense,

such as concerning the conflict in Nagorno-Karabakh. Such cases required a lot of resources and

consultations with the States concerned. The Assembly could support their execution by helping to increase

awareness in the countries and by supporting the execution measures proposed by the Committee of

Ministers and by the Court. She considered that the Court could also contribute to this process by answering

in the follow-up cases the arguments of the respondent States raised before the Committee of Ministers and

by doing as much fact-finding as possible.

3. Dr Risini noted that about 15% of all individual cases pending before the Court stemmed from an armed

conflict and many of them overlapped with interstate cases, which raised the question of how those cases

should be processed. In 2020, the use of the interstate procedure had reached an all-time high of six

applications within one year. Interstate cases required a lot of fact-finding, whereas the resources of the Court

were limited. There was also scope for further work as to how to identify victims of violations in such cases.

4. This hearing made clear the challenges of interstate cases and the importance of perseverance and

creative thinking in finding solutions. Numerous individual applications are linked to armed conflicts, and it is

therefore important to cover such cases as well and not to lose sight of the individuals affected by a conflict

situation. The below cases illustrate the sorts of challenges in dealing with interstates cases – Cyprus v.

Turkey; Georgia v. Russia; Catan and Others v. Moldova and Russia; Mozer v. Moldova and Russia; and

cases relating to the situation in Nagorno-Karabakh.

5. The Committee on Legal Affairs and Human Rights also held a hearing focussed on the implementation

of Article 18 judgments during its meeting on 14 November 2022 with the participation of Ms Clare Ovey,

Head of the Department for the Execution of Judgments of the European Court of Human Rights, Council of

Europe; and Dr Başak Çalı, Professor of International Law, Co-director of the Centre for Fundamental Rights,

Hertie School, Berlin.

6. Ms Ovey explained the particularity of Article 18 judgments. They were different from other cases as

there was often resistance on the part of States to implement these judgments. This required understanding

and significant support, including from parliamentarians. So far there were few judgments finding a violation of

Article 18 – only eighteen such cases to date. They were rare because in order to find a violation, all State

bodies involved, including the judiciary, needed to have a political motivation in perpetuating the human rights

violation. Such occurrences were thus very worrying and a big red flag; Article 18 judgments indicated a major

dysfunction of the rule of law and justice system in a State. This often suggested that a higher level of

international intervention was required.

7. Execution of Article 18 judgments should put the victim back into the situation they were in before the

violation took place (for example acquit them of politically motivated convictions and remove all the

consequences of a wrongful prosecution and conviction). States must also take general measures to prevent

the repetition of further violations. In this vein, the Committee of Ministers looks for general measures to boost

the independence of the judiciary and of prosecuting bodies, such as considering how judges get appointed

and promoted. One concern with such cases was that if the ECtHR has said that the domestic courts acted

under political influence, it is then hard simply to leave it to those domestic courts to solve; there is then a

need for a higher level of intervention to ensure compliance.

8. Dr Çalı, set out the exceptional importance of Article 18 cases; these were human rights violations in

pursuit of an unlawful ulterior purpose. This ulterior purpose, such as “stifling of democracy and pluralism” was

not present under other Convention articles. As such, an Article 18 violation was a warning sign of risks to

democracy and the rule of law. Parliamentarians thus needed to follow such cases closely as they had

significance for the very foundations of democracy and the rule of law. She explained that the first Article 18

judgment was the relatively recent 2004 case Gusinksy v. Russia. Cases since then have involved the

detention of opposition politicians, human rights defenders, lawyers and journalists in Ukraine, Russia,

Doc. 15742 Report

Azerbaijan and Türkiye. However, as Dr Çali noted, Article 18 was not restricted to detention cases – there

were also travel bans and recent cases relating to politically-motivated disciplinary proceedings of judges in

Poland and Bulgaria.

9. More recently, the Committee of Ministers had brought infringement proceedings under Article 46(4) in

relation to unimplemented Article 18 detention cases. This had facilitated the release of Ilgar Mammadov by

Azerbaijan. However the judgment in favour of human rights defender Mr Kavala had yet to secure his release

by Türkiye; he had now spent 5 years in prison. In these infringement proceedings, the ECtHR noted that

where an individual's detention was deemed to be a violation of Article 18, if they were released and then re-

detained on different charges but based on the same facts, then the Article 18 violation continued.

10. Dr Çalı went on to note best practice in terms of the role taken by parliament (as well as the judiciary

and the executive) to implement the judgments in the Ukrainian cases of Lutsenko and Tymoshenko. She

noted that Article 18 cases did not merely require arbitrary behaviour but manifest irregularity in the

administration of justice, combined with political influence over the judiciary. The Assembly and

parliamentarians were well placed to consider legislative and judicial reforms necessary to protect the judiciary

from undue influence. She considered that the Assembly should monitor Article 18 judgments closely and be

able to start monitoring as soon as these were final and to ensure frequent follow-up. The Assembly had a

useful role to play to dispel misunderstandings about Article 18 cases and their importance – and to recognise

the risks posed by the persecution of individuals for their participation in democratic society or for defending

the rule of law. Such cases were not only about the rights of specific individuals; they concerned the overall

health of democratic systems of government based on the rule of law. The Assembly members could consider

attending the domestic trials of these individuals to encourage respect for the rule of law and for the

implementation of ECtHR judgments. They should also ask for the full restoration of rights of those affected

(not only release from unlawful detention).

11. Dr Çalı noted that the ECtHR was developing a solid jurisprudence in relation to Article 18 cases and its

criteria in those cases, which related to (1) a significant time gap between the sets of events (for example

many years between the alleged facts and the acts of the prosecution); (2) the quality of the totality of

evidence (for example if lawful activities were criminalised); (3) the conduct of the applicant in the criminal

process; and (4) temporal inferences between how politicians approached the framing of a case and the

framing of the indictment. In relation to the Kavala case, Dr Çalı recalled that ECtHR judgments were binding

under the Turkish Constitution so one would hope that the Turkish domestic courts would apply the

Convention and ECtHR judgments properly in this case.

12. This hearing highlighted the significance of Article 18 judgments in relation to the misuse of power and

ulterior motives for human rights abuses; such judgments are a red flag. I noted in particular the different

types of Article 18 cases (detention cases and those to silence through disciplinary proceedings) and the need

for close and timely monitoring. National parliaments and parliamentarians need to intervene to support the

resolution of such cases, and more might be done to involve them in this work.

Doc. 15742 Report