WIDESPREAD AND SYSTEMIC VIOLATIONS: EUROPEAN SYSTEM P R O F E S S O - - PowerPoint PPT Presentation

WIDESPREAD AND SYSTEMIC VIOLATIONS: EUROPEAN SYSTEM

P R O F E S S O R P H I L I P L E A C H E H R A C , M I D D L E S E X U N I V E R S I T Y , L O N D O N

EUROPEAN COURT PILOT JUDGMENTS

Political impetus in early 2000s

• Immense case backlog
• Repetitive violations
• To identify underlying systemic problems
• To identify the source
• To assist the state in finding a solution
• To improve the execution of judgments concerning

systemic issues

EUROPEAN COURT PENDING CASES

BRONIOWSKI V POLAND 2004

CHARACTERISTICS OF A PILOT JUDGMENT

• identification of a systemic violation of the

Convention

• general measures stipulated in the operative part of

the judgment

• Specific time limits may be set down
• Other similar cases may be adjourned

[Rule 61 of the Court’s Rules]

DEVELOPMENT OF THE PILOT JUDGMENT PROCEDURE

2004: Broniowski v Poland 2006: Hutten-Czapska v Poland 2009: Burdov (No. 2) v Russia, Olaru v Moldova, Ivanov v Ukraine, Suljagić v Bosnia and Herzegovina 2010: Rumpf and Germany, Vassilios Athanasiou v Greece, Atanasiu v Romania, Greens and M.T. v UK 2012: Ananyev v Russia, Ümmühan Kaplan v Turkey, Michelioudakis v Greece, Kurić v Slovenia; Glykantzi v Greece, Manushaqe Puto v Albania 2013: Torreggiani v Italy, M. C. v Italy 2014: Gerasimov v Russia, Ališić v Bosnia & Herzegovina, Croatia, Serbia, Slovenia and the FYROM 2015: Neshkov v Bulgaria, Varga v Hungary

ANANYEV V RUSSIA (2012)

Obligation to guarantee a trial within a reasonable time or release pending trial (Art 5(3))

primary cause of overcrowding was excessive use of pre-trial detention

without proper justification and the excessive duration of detention

Very high level of applications for detention granted by Russian courts (over

90%)

domestic courts relied on gravity of the charges and used the same

stereotyped formulae

Committee of Ministers had identified it as a structural problem

The Court considered that the custodial measure should be reserved to the most serious cases involving violent offences and that remand in custody should be an exceptional measure rather than the norm.

ANANYEV V RUSSIA (2012)

Inhuman and degrading treatment in remand centres (Art 3) -

a recurrent structural problem in Russia

improve the material conditions of detention, by shielding the toilets in

cells, removing thick netting from cell windows and increasing the frequency of showers

change the applicable legal framework, as well as practices and

attitudes

ensure that pre-trial detention is only used in absolutely necessary

cases

establish maximum capacity for each remand prison ensure that victims can complain effectively about inadequate

conditions of detention and that they obtain appropriate compensation

a binding time frame for resolving the problems (within 6

months)

Provide redress (within 12 months)

VARGA V HUNGARY (2015)

• Prison conditions- overcrowding
• 450 similar pending cases
• produce a timeframe (within 6 months) for putting

in place an effective remedy or combination of remedies, both preventive and compensatory

GREENS AND M.T. V UK (2010)

• A3P1 violated
• Originated in failure

to execute Hirst v UK (2005)

• State must bring

forward legislative proposals within 6 months

• Enact legislation

within period determined by CoM

AN ‘ARTICLE 46’ JUDGMENT: COMPENSATION FOR VICTIMS OF SOVIET REPRESSION

Kiladze v Georgia (2010)

• K’s father killed and mother

sent into exile during era of repression under Stalin in 1930s. Family’s flat and all their belongings confiscated

• In 1997 Parliament introduced

aw to compensate victims of repression

• European Court found

‘legislative void’ had prevented K from obtaining compensation

• Judgment required Georgia to

rapidly introduce a new law to ensure that compensation is paid

ASSESSING THE PILOT JUDGMENT PROCEDURE

Brighton Declaration (2012): States ‘reaffirm…the right of individual application… as a cornerstone of the Convention…’

• Systemic approach
• More interventionist
• Court’s backlog
• Subsidiarity (effective implementation at

domestic level)

ASSESSING THE PJP

• Clarity of definition and application?
• Which cases are most suitable?
• How are cases selected?
• Effects of adjourning similar applications?

ASSESSING THE PJP

• How effective?

Broniowski

• 80,000 potential applicants
• New compensation law introduced 2005
• Ceiling of 20% of current value
• 4,000 cases processed
• PJP closed in September 2008

ASSESSING THE PJP

But:

• Ivanov – ECtHR resumed examination of

applications concerning non-enforcement of domestic decisions in Ukraine (Feb 2012)

• Atanasiu - Romanian authorities given an

additional 9 months within which to introduce general measures (June 2012)

ASSESSING THE PJP

Prisoner Voting in the UK

• Hirst v UK (2005)
• Greens & M.T. v UK (2010) – Pilot Judgment
• PM David Cameron (Oct 2012): ‘No one should be under any

doubt – prisoners are not getting the vote under this government’

• Draft Bill published (Nov 2012): 3 ‘options’
• 2,354 prisoner voting rights cases adjourned by ECtHR (March

2013)

NORTH CAUCASUS CASES: VIOLATION BY ECHR ARTICLE

167 182 12 135 141 168 15 168 20 40 60 80 100 120 140 160 180 200

ASLAKHANOVA V RUSSIA (2012)

• Systemic dysfunction in investigation of

disappearances in North Caucasus since 1999

• A ‘comprehensive and time-bound strategy’ to

address:

• Duty to account for circumstances of death and location of

grave

• Absence of single, high-level body to solve cases
• Large-scale forensic work
• Financial compensation
• Continuing obligation to carry out effective investigations
• Relatives’ access to case files

EHRAC REDRESS & IMPACT

Volkov v Ukraine (2013)

REDRESS & IMPACT

• McCaughey v UK (2013)
• that the Government take, as a matter of some

priority, all necessary and appropriate measures to ensure, in the present case and in similar cases concerning killings by the security forces in Northern Ireland where inquests are pending, that the procedural requirements of Article 2 are complied with expeditiously.

RUSSIA – THE ‘FOREIGN AGENTS’ LAW

EHRAC

NAGORNO-KARABAKH



South Ossetia conflict (2008)



32 groups of applications lodged in 2010 (with the Georgian Young Lawyers’ Association) on behalf of 134 Georgian citizens

RUSSIA-GEORGIA CONFLICT (2008)

EHRA

TEN WEEKS IN THE HANDS OF UKRAINIAN SEPARATISTS

UKRAINIAN THEATER DIRECTOR PAVEL YUROV (RIGHT) AND ARTIST DENIS GRISHCHUK ARE RECOVERING IN KYIV AFTER BEING HELD HOSTAGE FOR MORE THAN TWO MONTHS BY PRO-RUSSIAN SEPARATISTS. RADIO FREE

EUROPE/RADIO LIBERTY, 30 JULY 2014

EH