Implementation of judgments of the European Court of Human Rights: Republic of Moldova, Poland, and Romania

Transcription

1 Restricted AS/Jur (2012) September 2012 ajdoc Committee on Legal Affairs and Human Rights Implementation of judgments of the European Court of Human Rights: Republic of Moldova, Poland, and Romania Information Memorandum Prepared by the Secretariat upon the instructions of: Mr Klaas de Vries (Netherlands, SOC), rapporteur on the Implementation of judgments of the European Court of Human Rights, 1. Introduction 1. On 26 January 2011 the Parliamentary Assembly adopted Resolution 1787 (2011) 1 and, Recommendation 1955 (2011), 2 on the basis of the report on the Implementation of judgments of the European Court of Human Rights by Mr Christos Pourgourides 3 (Cyprus, EPP/CD). Together they drew attention to the difficult situation of non-implementation of judgments of the European Court of Human Rights ( ECtHR or the Court ) in a number of states in which (major) structural problems have led to repeat violations, namely: Bulgaria, Greece, Italy, Republic of Moldova, Poland, Romania, the Russian Federation, Turkey, and Ukraine, as well as delays in the full implementation of Court judgments by the United Kingdom. Resolution 1787 makes a number of recommendations to each state, emphasising the role national parliaments can and should play in ensuring the effective implementation of judgments of the ECtHR. It also calls upon the chairpersons of national parliamentary delegations together, if need be, with the relevant ministers of states [ ] to present the results achieved in solving substantial problems highlighted in this resolution. 4 Beside the adoption of the above-mentioned texts, an additional number of efforts have been undertaken by the Assembly and its members to demonstrate the seriousness of the situation Implementation of Judgments of the European Court of Human Rights, 7 th Report by Mr Christos Pourgourides (Cyprus, Group of European People s Party), Doc of 20 December 2010, at: 4 Supra note 1, paragraph See in particular the following documents: - States with major structural/systemic problems before the European Court of Human Rights: statistics, AS/Jur/Inf (2011) 05 rev 2, 18 April 2011, at: - Guaranteeing the authority and effectiveness of the European Convention on Human Rights, Report by Ms Marie- Louise Bemelmans-Videc (the Netherlands, Group of the European People s Party), Doc of 3 January 2012, at: - Resolution 1856 (2012) and Recommendation 1991 (2012) of 24 January 2012 (provisional edition), at: and - National parliaments: guarantors of human rights in Europe, Report by Mr Christos Pourgourides (Cyprus, Group of European People s Party), Doc of 6 June 2011, at: - Resolution 1823 (2011) of 23 June 2011, at: F Strasbourg Cedex assembly@coe.int Tel: Fax:

2 2. As foreseen by Resolution 1787 (2011), the previous President of the Assembly, Mr Mevlüt Cavuşoğlu sent letters to national parliamentary delegations of the above-mentioned countries on 5 April 2011; a reminder letter was sent on 7 December In his letters, the President referred to the need for both the Assembly and national parliaments to take a more active role in supervising the execution of the Strasbourg Court s judgments. The President also requested the chairpersons to provide information within six months, by the beginning of October 2011, on the actions taken by their respective national parliaments to implement Resolution 1787 (2011). The request was repeated in the reminder letter sent on 7 December 2011, asking heads of PACE delegations to provide information by January To date, only three delegations, Poland (recently, in September 2012), Romania and Ukraine have replied; replies were received from Bulgaria and Italy after the Committee had held hearings with these two countries. 3. In October 2011, the outgoing Chairperson of this Committee and rapporteur on the Implementation of judgments of the European Court of Human Rights, Mr Pourgourides, in a speech given at a seminar organised by the Netherlands Helsinki Committee, emphasised the importance of the Assembly and national parliaments remaining seized of this matter. 6 In November 2011, he instructed the Secretariat to pursue this issue and prepare an overview so as to permit the Committee to invite the heads of relevant parliamentary delegations and representatives of ministers responsible for these dossiers. During the January 2012 part session, the Committee on Legal Affairs and Human Rights appointed Mr Klaas de Vries (Netherlands, SOC) to succeed Mr Pourgourides as rapporteur on the implementation of the Strasbourg Court s judgments and considered the introductory memorandum on Ensuring the viability of the Strasbourg Court: structural deficiencies in States Parties by Mr Serhii Kivalov (Ukraine, EDG). 7 In the context of these two reports, the Committee also agreed to hold a series of hearings in Strasbourg with the heads of the parliamentary delegations of each of the above-mentioned countries, providing them with an opportunity to present the actions they have taken so far. Hearings were held with the heads of the Italian and PACE Ukrainian delegations during the April 2012 part-session, and with the heads of the Bulgarian, and Russian delegations during the June 2012 part-session. The next set of hearings is scheduled for the October 2012 part-session with the heads of the Moldovan, Polish, and Romanian delegations. 8 During the April 2012 part-session, the AS/Jur also decided to open these hearings to representatives of civil society. 4. This memorandum presents the state of implementation of the Court s judgments with respect to the Republic of Moldova, Poland and Romania. Firstly, it provides an overview of major structural problems that have led to repeat violations and which account for the vast majority of cases brought to the ECtHR. 9 The most common structural issues are the excessive length of judicial proceedings, the non-enforcement of domestic court decisions, unlawful detention, as well as excessive use of detention on remand. Effective measures to tackle the root causes of these violations have the highest priority, not least to stem the flow of such applications to the ECtHR. Secondly, there are particularly worrying violations of non-derogable rights, 10 including Articles 2 and 3 of the European Convention on Human Rights ( ECHR, Convention ), coupled with the subsequent failure to effectively investigate the violations and hold the perpetrators to account. The continuous failure of certain states to comply with the Court s judgments finding such violations is, in the view of the rapporteur, putting at risk the credibility of the Convention system as a whole. 6 Speech by Mr Christos Pourgourides given on 31 October 2011 at the Netherlands Helsinki Committee Seminar on Bridging the Implementation Gap: Enlarging Civil Society s Role in the European Court of Human Rights Implementation Process (text on file with the Secretariat). 7 Document AS/Jur (2012) 02. Mr Kivalov intends to present his report to the AS/Jur in October It is understood that hearings with the heads of other delegations (Greece, Turkey, and the United Kingdom) will be scheduled for the January 2013 PACE part-session. 9 The term structural problem refers to a violation which represents an underlying systemic problem and the source of that problem, in particular when it is likely to give rise to numerous applications, as mentioned in CM Resolution (2004)3 on judgments revealing an underlying systemic problem, available at: olorlogged=f5d Although all rights of the Convention should be afforded the same weight and protection, this overview will limit its examination to systemic violations of non-derogable rights as found in Article 15(2) ECHR, in particular Articles 2 and 3 of the Convention. 2

3 2. State by state overview 2.1. Republic of Moldova Background 5. The number of pending cases before the Committee of Ministers ( CM ) concerning the Republic of Moldova on 31 December 2011 was 202 of which 143 were clone or isolated cases. 11 Mr Pourgourides report summarised the main Moldovan issues as follows: - non-enforcement of domestic judgments; - unlawful pre-trial detention; - ill-treatment by police; - poor conditions of detention on remand and in prison The Republic of Moldova has not responded to the letter of 5 April 2011, addressed to the head of delegation by the President of the Assembly, nor to the reminder of 7 December Non-enforcement of domestic judgments 7. Despite some progress achieved, there are still a number of outstanding questions as regards the non-enforcement of domestic judgments in the Republic of Moldova. 13 The ECtHR highlighted this structural problem by applying the pilot judgment procedure in the case Olaru and others v. Republic of Moldova. 14 In its judgment, the Court demanded the Republic of Moldova set up a domestic remedy for non-enforcement or delayed enforcement of domestic judicial decisions relating to social housing. Of the nearly 210 judgments against the Republic of Moldova currently pending execution, more than 50 concern the non-enforcement of domestic judgments Law no. 87 on state compensation for damaged [sic] caused as a result of the violation of the reasonable deadline concerning the adjudication process of the cases or the execution process of the Court s judgments was adopted on first reading on 24 March 2011, and entered into force on 1 July In the case of Balan v. Republic of Moldova, the Court found it significant that the Moldovan Government ( ) passed the legal reform introducing the new domestic remedy in response to the Olaru pilot judgment under the supervision of the Committee of Ministers, and accepted that Law no. 87 was designed, in principle, to address the issue of delayed enforcement of judgments in an effective and meaningful manner, taking account of the Convention requirements The CM noted the progress made in the Olaru and others group of cases at its 1136th DH meeting (March 2012), encouraged the Republic of Moldova to ensure the new remedy is implemented in compliance with the Convention s requirements, and requested the Moldovan authorities keep the CM informed on the development of Law no. 87 s application by domestic courts. 18 Moreover, the CM encouraged the Moldovan authorities to increase their efforts to settle the remaining applications 11 Supervision of the execution of judgments and decisions of the European Court of Human Rights, 5 th Annual Report 2011 of the Committee of Ministers, available at: 12 Supra note 3, para Updated information from the Moldovan authorities in the case of Olaru and others against Moldova, DH- DD(2011)377 of 25 May 2011, available at: de=1&docid= &usage=2. 14 Application nos. 476/07, 22539/05, 17911/08, and 13136/07, judgment of 28 July For a list of the cases against the Republic of Moldova pending execution before the CM, see in particular the group of cases Luntre v. Republic of Moldova, application No. 2916/02, judgment of 15 June 2004; Pending cases: current state of execution The Republic of Moldova, available at: SectionCode. 16 See supra note 13, and Decisions by the Committee of Ministers concerning the Olaru and others group of cases, 1120th (DH) meeting, September 2011, CM/Del/Dec(2011)1120/5 of 14 September 2011, available at: orinternet=c3c3c3&backcolorintranet=edb021&backcolorlogged=f5d Balan v. Republic of Moldova, application no /08, decision of 24 January 2012, paras. 24, Decisions by the Committee of Ministers concerning the Olaru and others group of cases, 1136th (DH) meeting, 6-8 March 2012, CM/Del/Dec(2012)1136/15 of 8 March 2012, available at: lorinternet=c3c3c3&backcolorintranet=edb021&backcolorlogged=f5d383. 3

4 communicated by the Court under the pilot judgment 19, and decided to thenceforth examine this group of cases under the standard procedure Despite these welcome improvements, it is important to note that there are over 400 persons who had obtained a court decision granting them social housing prior to the cancellation of this privilege in December As the new remedy only provides relief for enforcement delays but does not ensure the actual enforcement of ( ) final judgment[s], a risk of a new influx of repetitive applications to the Court still exists as long as these judgments remain unexecuted Unlawful pre-trial detention 11. In the group of cases examined under Sarban v. Republic of Moldova, 23 the ECtHR found various violations of Article 5 of the Convention related to the applicants arrest and detention on remand. Since the developments outlined in the Pourgourides report 24 and the CM memorandum of 30 November 2009, 25 both of which highlighted a number of legislative changes to the Code of Criminal Procedure, no evidence of tangible progress has been forthcoming. The action plan requested at the round table held in Warsaw from 9 to 10 December 2011 on Detention on remand: General Measures to comply with the European Court s judgments organised by the Department for the execution of judgments of the European Court of Human Rights is still awaited Ill-treatment by police 12. In numerous cases against the Republic of Moldova pending execution, the Court found violations of Article 3 of the Convention on account of ill-treatment inflicted on applicants in police custody and lack of effective investigations into these events. 27 Although the Moldovan authorities have provided information on a number of general measures taken, such as amendments to the Criminal Code, an action plan for the implementation of these cases is still awaited After Mr Pourgourides visit in May 2010, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( CPT ) conducted two visits to the Republic of Moldova, one from 21 to 27 July and the other from 1 to 10 June In its report on its June 2011 visit, the CPT welcomed the Ministry of Internal Affairs anti-torture action plan, which encompassed several important measures, such as the deliverance of a message of zero-tolerance regarding ill-treatment by police and the 19 Around 100 cases out of some 152 have been settled so far. See notes concerning the Olaru and others group of cases, in Ministers Deputies. Annotated order of Business and decisions adopted at 1136th (DH) meeting, 6-8 March 2012, CM/Del/Dec(2012)1136 of 13 March 2012, available at: ColorLogged=F5D383#P2107_ Supra note Supra note Ibid. 23 Application no. 3456/05, judgment of 4 October For a list of the nine cases contained in the group, see Pending cases: current state of execution Application no. 3456/05, available at: ode=mda&sectioncode=enhanced+supervision&hideclones=on. 24 Supra note 3, paras Measures required to comply with the judgments concerning detention on remand in Moldova, CM Secretariat Information Memorandum, CM/Inf/DH(2009)42rev of 30 November 2009, available at: =DBDCF2&BackColorIntranet=FDC864&BackColorLogged=FDC See Conclusions of the Round Table, CM Information Document, CM/Inf/DH(2009)53 of 22 December 2009, available at: 27 See Corsacov v. Republic of Moldova (Application no /02, judgment of 4 April 2006) group of cases. For a list of cases contained in this group, see Pending cases: current state of execution Application no /02, available at: Code=MDA&SectionCode=ENHANCED+SUPERVISION&HideClones=on. See also Taraburca v. Republic of Moldova, application no /10, judgment of 6 December 2011, where the Court found a violation of Article 3 as a result of the applicants ill-treatment under police custody during the April 2009 Moldovan civil unrest. 28 See supra note 3, para See Report to the Moldovan Government on the visit to Moldova carried out by the CPT from 21 to 27 July 2010, published on 3 March 2011 (available in French only), CPT/Inf (2011) 8, available at: 30 See Report to the Moldovan Government on the visit to Moldova carried out by the CPT from 1 to 10 June 2011, published on 12 January 2012 (available in French only), CPT/Inf (2012) 3, available at: 4

5 improvement of training on investigation and interrogation techniques. 31 The CPT, however, noted that a significant proportion of detained persons complained of police ill-treatment during the month preceding the visit, and in a number of cases, the alleged ill-treatment could qualify as torture. 32 Consequently, it urged the Moldovan authorities to continue implementing anti-torture measures and issuing periodic reminders of zero-tolerance at a higher political level if necessary, and to examine the outcome and effectiveness of such measures. Furthermore, the CPT recommended reinforcing investigations into alleged ill-treatment Poor conditions of detention on remand and in prison 14. Three cases concerning poor detention facilities under the Ministry of Internal Affairs authority, 34 eight concerning establishments under the control of the Ministry of Justice, 35 and two concerning poor detention conditions due to inadequate medical care 36 are pending before the CM. Since Mr Pourgourides report, the CM has noted no progress on this issue, and no action plan has been submitted. 15. Following its 2011 visit to the Republic of Moldova, the CPT noted with concern that prisoners were often detained under unacceptable conditions. Although the number of prisoners per establishment had decreased since the CPT s 2007 visit, 37 the living space, including toilets, per detainee in the cells was seldom greater than 3.5m 2 and sometimes as small as 1.5m As such, the material conditions in most of the examined establishments were insufficient and did not provide enough privacy. 39 Furthermore, the hygienic conditions in several establishments left much to be desired, and opportunities for bathing were rare, given the small number of showers available Nevertheless, the CPT welcomed the news that an action plan had been drafted based on the CPT s findings, and included in the Moldovan Department of Penitentiary Institutions work program for the second semester of The action plan aims to combat prison overcrowding and improve detention conditions Special areas of concern 17. Mr Pourgourides report also mentioned several other areas of concern, namely in the cases of Cebotari v. Republic of Moldova, 43 Oferta Plus S.R.L. v. Republic of Moldova, 44 and Colibaba v. Republic of Moldova, 45 regarding violations of the right of individual petition. 46 No apparent progress has been reported by the authorities in the execution of these judgments, and further information on measures adopted or envisaged is still awaited. 31 Ibid. para Ibid. para Ibid. para The Moldovan Government s response the CPT report CPT/Inf (2012)3 was published (in French) on 28 August 2012, see at: 34 Becciev v. Republic of Moldova (Application no. 9190/03, judgment of 4 October 2005), Malai v. Republic of Moldova, (Application no. 7101/06, judgment of 13 November 2008), and Ciorap v. Republic of Moldova (no. 2) (Application no. 7481/06, judgment of 20 July 2010). 35 Ciorap v. Republic of Moldova (Application no /02, judgment of 19 June 2007), Istratii and others v. Republic of Moldova (Application nos. 8721/05, 8705/05, and 8742/05, judgment of 27 March 2007), Ostrovar v. Republic of Moldova (Application no /03, judgment of 13 September 2005), Meriakri v. Republic of Moldova (Application no /99, judgment of 1 March 2005), Holomiov v. Republic of Moldova (Application no /05, judgment of 7 November 2006), I.D. v. Republic of Moldova (Application no /06, judgment of 30 November 2010), Rotaru v. Republic of Moldova (Application no /06, judgment of 15 February 2011) and Haritonov v. Republic of Moldova (Application no /07, judgment of 5 July 2011). 36 Paladi v. Republic of Moldova (Application no /05, judgment of 10 March 2009), and Oprea v. Republic of Moldova (Application no /06, judgment of 21 December 2010). 37 Supra note 29, para Ibid. para Ibid. para For instance, in one detention facility there were only 5 showers for about 500 detainees. See Ibid. para See Moldovan Government s Response to the CPT s Report on its visit to Moldova from 21 to 27 July 2010 (available in French only), CPT/Inf (2011) 9, available at: See also supra note 29, para. 18, 56, and Ibid. 43 Application no /06, judgment of 13 November Application no /04, judgment of 12 February Application no /06, judgment of 23 October For a more thorough description of the concerns noted in the Pourgourides report, see supra note 3, paras

6 2.2. Poland Background 18. The number of pending cases regarding Poland before the CM on 31 December 2011 was 924, of which 852 were clone or isolated cases. Mr Pourgourides report summarised the main Polish issues as follows: - excessive length of proceedings and lack of an effective remedy; - excessive length of detention on remand By a letter of 10 September 2012, the head of the Polish delegation to the Assembly, Mr Andrzej Halicki, provided information on the measures taken by the Polish authorities to implement Resolution 1787 (2011) and tackle the outstanding issues raised in Mr Pourgourides report 48. There is no established procedure within the Polish Parliament to monitor implementation of Court s judgments; however, following the Assembly s Resolution 1787 (2011), on 12 April 2012, the Sejm s Committee on Justice and Human Rights held a meeting on this issue and requested the Council of Ministers to present annually information on the state of execution of ECtHR judgments against Poland Excessive length of proceedings and lack of an effective remedy 20. The Pourgourides report requested that Poland provide statistical data on the effectiveness of the Polish authorities various domestic efforts to eradicate the problem of excessively long proceedings. 50 Since then, further information has been provided as regards progress on reducing the length of criminal 51 (Kudła v. Poland and other cases) and civil proceedings (Podbielski v. Poland and other cases) 52 as well as proceedings before administrative authorities and courts (Fuchs v. Poland and other cases) On 22 November 2011, the Polish authorities submitted an action plan 54 concerning the Kudla v. Poland 55 and Podbielski v. Poland 56 groups of cases, and on 23 November 2011 they submitted a separate action plan concerning the Fuchs v. Poland 57 group of cases. 58 Both action plans contained summaries of legislative and other general measures taken by the Polish authorities to remedy this problem (including computerisation of judicial proceedings and increase in the judiciary s budget and staff) 59, as well as statistical information on the matter of length of proceedings up to It should be noted that, according to these statistics for 2010, the domestic courts backlog had increased by nearly 9% 60. However, as regards pre-trial proceedings - according to the latest information provided in Mr Halicki s letter of 10 September 47 Ibid. para Text in file with the Secretariat. See also Background document AS/Jur (2012) Committee on Justice and Human Rights, Biuletyn nr 430/VII, available at : 50 Supra note 3, para See Kudla group of cases against Poland 66 cases mainly concerning the length of criminal proceedings and the lack of an effective remedy, 1136th (DH) meeting, 6-8 March 2012, CM/Del/OJ/DH(2012)1136list23 of 3 January 2012, available at: Internet=B9BDEE&BackColorIntranet=FFCD4F&BackColorLogged=FFC See Podbielski group against Poland 234 cases of length of civil proceedings before civil and labour courts, 1136th (DH) meeting, 6-8 March 2012, CM/Del/OJ/DH(2012)1136list46 of 3 January 2012, available at: olorinternet=c3c3c3&backcolorintranet=edb021&backcolorlogged=f5d See Fuchs group against Poland 79 cases of length of proceedings concerning civil rights and obligations before administrative bodies and courts, 1136th (DH) meeting, 6-8 March 2012, CM/Del/OJ/DH(2012)1136list15 of 3 January 2012, available at: Internet=B9BDEE&BackColorIntranet=FFCD4F&BackColorLogged=FFC Action plan, DH-DD(2011)1074 of 24 November 2011, available at: de=1&docid= &usage=2. 55 Application no /96, judgment of 26 October Application no /95, judgment of 30 October Application no.33870/96, judgment of 11 May Action plan, DH-DD(2011)1073 of 24 November 2011, available at: de=1&docid= &usage=2. 59 Supra note 52, pp Ibid, p. 7. 6

7 the number of protracted cases lowered by 28% in 2011, following special monitoring measures taken vis-à-vis prosecutors. 22. Concerning the effectiveness of the domestic complaint against excessive length of proceedings, the Polish authorities are of the opinion that courts were taking into account the Court s case law to a greater extent, although, between 2009 and 2010, the number of such complaints increased by nearly 35% 61. In 2010, the percentage of admissible complaints amounted to 19% 62 and, in 91% of these complaints, applicants had been awarded pecuniary compensation Concerning the excessive length of administrative proceedings, the statistical information included in the action plan on the Fuchs group of cases reveals that administrative courts usually completed complaints about the inactivity of administrative authorities within 3-6 months 64 and that the workload of the Supreme Administrative Court remained stable. 65 In 2011, a new law on financial liability of public officials for gross violation of law 66 and new amendments to the Code of Administrative Procedure entered into force These groups of cases were discussed at the CM s 1128th DH meeting (November-December 2011). 68 The CM welcomed the various measures taken to address Poland s systemic problem of excessive length of proceedings, as well as the Polish authorities commitment to monitor their implementation. A substantive examination of the action plans, however, remains to be undertaken by the CM Excessive length of detention on remand 25. The Trzaska v. Poland 69 and Kauczor v. Poland 70 group of nearly 170 cases is primarily concerned with excessive length of detention on remand and deficiencies in the procedure for reviewing the lawfulness of pre-trial detention On 21 November 2011, the Polish authorities submitted an action plan regarding the Trzaska group of cases, which contains information on measures taken to solve this problem, such as closer supervision of the grounds for and the length of detention on remand, intensified oversight of relevant criminal proceedings, and increased training of judges and prosecutors. 72 Furthermore, the action plan presents detailed statistical data on this issue from 2005 to According to the information provided, there has been a significant decline in the number of pre-trial detention orders, a substantial reduction in the length of detention on remand, and a steady increase in the use of alternatives to pre-trial detention since The numbers, however, also show that more time is needed for Poland s new measures to become well-established domestic practice, especially since the trends in the data regarding the length of detention imposed by regional courts were less conclusive than those regarding district courts Ibid, p. 9. In 2010, courts completed 96.3% of the incoming complaints concerning excessive length of proceedings. 62 Ibid. 63 In 926 complaints as compared with 588 in 2009; ibid., p The majority of complaints related to public information and press law, construction issues, expropriation and restitution of real property; in this context, see in particular the problems with the implementation of individual measures concerning property restitution in the case of Beller v. Poland, Application No /99, judgment of 1 Februay 2005 ; communications from the Helsinki Foundation for Human Rights, DH-DD(2011)110 of 16 February 2011 and DH- DD(2012)252 of 19 March Supra note 58, p. 2 and Law of 20 January 2011, ibid. 67 Supra note 58, p. 6. As a result of these amendments, it is now possible not only to complain about the inactivity of administrative authorities, but also about protracted proceedings before the latter. 68 Decisions by the Committee of Ministers concerning the Podbielski, Kudla, and Fuchs groups of cases, 1128th (DH) meeting, 29 November-2 December 2011, CM/Del/Dec(2011)1128/15 of 2 December 2011, available at: lorinternet=c3c3c3&backcolorintranet=edb021&backcolorlogged=f5d Application no /94, judgment of 11 July Application no /06, judgment of 3 February See Trzaska and Kauczor group of cases against Poland 168 cases of length of detention on remand, 1136th (DH) meeting, 6-8 March 2012, CM/Del/OJ/DH(2012)1136list39 of 3 January 2012, available at: olorinternet=dbdcf2&backcolorintranet=fdc864&backcolorlogged=fdc Action plan, DH-DD(2011)1067 of 22 November 2011, available at: de=1&docid= &usage=2. Moreover, Mr Halicki s letter of 10 September 2012 contains updated information on training measures. 73 Ibid., pp. 5, See Notes concerning the Trzaska and Kauczor group of cases, 1136th (DH) meeting, 6-8 March 2012, CM/Del/Dec(2012)1136 of 13 March 2012, available at: 7

8 27. At its 1136th DH meeting (March 2012), the CM welcomed the Polish authorities progress in eradicating this problem and their commitment to further monitor the situation. 75 The CM also invited Poland to continue its efforts, especially with respect to training and awareness-raising measures for the judiciary and prosecutors. 76 Furthermore, it decided at that meeting to transfer this group of cases for supervision under the standard procedure Outstanding issues Poor conditions of detention 28. There are several cases against Poland pending execution before the CM regarding inhuman and degrading treatment due to inadequate conditions of detention caused by overcrowding (Orchowski v. Poland and Sikorski Norbert v. Poland) 78 and the lack of adequate medical care (Kaprykowski v. Poland and other cases), 79 among other things. As the Court recalled in Orchowski v. Poland, inadequate imprisonment conditions constitute a recurrent problem in Poland, and overcrowding in Polish prisons and remand centres reveals a persistent structural problem On 17 March and on 12 September 2011, the Polish authorities submitted action plans concerning the Orchowski and Sikorski Norbert cases. 82 As pointed out in the first action plan, in December 2009, the legislative provision allowing the placement of convicted persons for an indefinite period of time in cells where the surface per inmate was below the statutory 3m 2, was repealed. The second action plan demonstrates a decline in the number of detainees combined with a solid increase in prison and remand centre holding capacity from 2006 to July Moreover, according to the Polish authorities, for the first time in ten years, the number of detainees in prisons and remand centres in 2010 was lower than the overall capacity of those establishments on a nationwide scale, with an occupancy rate of 99.4%. 84 According to information provided in Mr Halicki s letter, as of 28 August 2011, this rate amounted to 96.6% and, moreover, following the introduction of the electronic surveillance system in 2009, the number of convicts serving their sentences outside penitentiary establishments has been gradually rising. It is also important to note that the ECtHR delivered two inadmissibility decisions in 2010, where it found that an effective remedy against detention facility overcrowding was available (civil action compensation), and declared that it may require applicants in future cases to make use of the new complaints system introduced by the Code of Execution of Criminal Sentences A first action report/plan on the Kaprykowski group of cases was submitted to the CM in March and then supplemented on 12 September The authorities stated that a reform of penitentiary hospital orinternet=c3c3c3&backcolorintranet=edb021&backcolorlogged=f5d383#p2206_ Decisions by the Committee of Ministers concerning the Trzaska and Kauczor group of cases, 1136th (DH) meeting, 6-8 March 2012, CM/Del/Dec(2012)1136/16 of 8 March 2012, available at: orinternet=c3c3c3&backcolorintranet=edb021&backcolorlogged=f5d Ibid. 77 Ibid. 78 Orchowski v. Poland, application no /04, judgment of 22 October 2009, and Sikorski Norbert v. Poland, application no /05, judgment of 22 October Kaprykowski v. Poland (Application no /05, judgment of 3 February 2009), Musial Slawomir v. Poland (Application no /06, judgment of 20 January 2009), Wenerski v. Poland (Application no /02, judgment of 20 January 2009), Wierzbicki Andrzej v. Poland (Application no. 48/03, judgment of 19 January 2010), and Rokosz v. Poland (Application no /09, judgment of 27 July 2010). 80 Orchowski v. Poland, para DH-DD(2011)627 of 11 August Action plan, DH-DD(2011)709E of 12 September 2011, available at: de=1&docid= &usage=2. 83 Ibid, p Ibid., p See Łatak v. Poland, application no /08, decision of 12 October 2010, para. 87, and Łomiński v. Poland, application no /09, decision of 12 October 2010, para. 78. Under the new system, detainees may appeal against the prison administration s decisions to reduce their living space. 86 Communication from the Polish authorities of 26 February Action plan, DH-DD(2011)710E of 12 September 2011, available at: de=1&docid= &usage=2 8

9 facilities aimed at improving the quality and consistency of medical treatment for all prisoners was under way 88. Furthermore, in December 2010, the Minister of Justice adopted a decree on the provision of medical services to persons in confinement by health-care establishments for persons deprived of liberty, which defines the scope of medical services offered to detainees At its 1120 th meeting (September 2012), the CM noted with interest the action plans provided, but noted that it still needs to fully assess them. 90 As regards the Orchowski and Sikorski Norbert cases, it observed that information on aggravating factors identified by the Court was still absent and invited the Polish authorities to submit such additional information. 32. Although there has apparently been some progress, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( CPT ) found in its report of July 2011 on its 2009 visit to Poland that overcrowding persisted in detention facilities, and recommended that the Polish authorities revise the legal standards for detainee living space to ensure 4m 2 per inmate. 91 Similarly, in her communication to the CM from November 2011, the Polish Ombudsman pointed out that the issue of overcrowding in Polish detention facilities remained unresolved, although, at the time of her submission, the population density in detention centres amounted to 96,4% at the national level, as measured against overall capacity. 92 The overall figures may hide important regional differences or reflect differences in the methods used to compile statistics Violation of the right to freedom of assembly 34. In the case of Bączkowski and others v. Poland, 93 the Court found a violation of the applicant s right to freedom of assembly, a lack of an effective remedy against this violation, and discriminatory treatment due to the Polish authorities refusal, not prescribed by law, of requests to hold demonstrations in 2005 seeking to raise awareness about discrimination against minorities, women, and persons with disabilities The lack of an effective remedy against local authorities refusal to hold a demonstration still remains an issue. According to Poland s action plan, which was submitted on 17 February , and which is still to be assessed by the CM, interim measures (mainly a broad dissemination of the ECtHR judgment) are in place, whilst awaiting a final legislative solution (two draft laws amending the 1990 Assemblies Act have been issued) Ibid, p Mr Halicki s letter contains an udpate on health care facilitaties in Polish prisons. 89 Ibid, p. 3. The decree entered into force on 3 January See Decisions by the Committee of Ministers concerning the Orchowski and Sikorski and Kaprykowski group of cases, 1120th (DH) meeting, September 2011, CM/Del/Dec(2011)1120/7 of 14 September 2011, available at: ernet=b9bdee&backcolorintranet=ffcd4f&backcolorlogged=ffc See Report to the Polish Government on the visit to Poland carried out by the CPT from 26 November to 8 December 2009, CPT/Inf (2011) 20 of 12 July 2011, para. 83, available at: 92 The Ombudsman has been acting in the capacity of the National Preventive Mechanism (NPM), which carries out preventive visits in all detention facilities in Poland. She expressed concerns regarding the NPM inspectors findings, which demonstrated that the inexistence of the overcrowding problem is reflected only by statistical data that was misrepresented as a result of inadmissible practices, such as the placing together of prisoners with different security classification status. See Communication from the Office of the Human Rights Defender in the cases of Orchowski and Sikorski against Poland (Applications No /04 and 17599/05) and reply of the government, DH-DD(2011)1108 of 9 December 2011, available at: de=1&docid= &usage=2. 93 Application no. 1543/06, judgment of 3 May Ibid., para Action plan, DH-DD(2012)362 of 3 April 2012, available at: de=1&docid= &usage=2. 96 The first was initially published in 2009 and, at the time of the action plan s submission, was pending consideration by the Government Legislation Centre. It established that final decisions on possible assembly bans shall be delivered to the organisers at least 24 hours before the planned date of the event. The second draft law was introduced to Parliament by the Polish President on 24 November 2011, and at its first reading on 21 December 2011, it was noted that the law must be expanded to better address the Court s concerns raised in Bączkowski and others v. Poland, namely the time-limits for examination of the refusal of permission to hold a demonstration. According to Mr Halicki s letter, in July 2012, the Senate adopted its amendments to this draft law. 9

10 Unfairness of lustration proceedings 36. The Matyjek group of cases 97 deals with unfairness of lustration proceedings 98 due, in particular, to the applicants restricted access to case-files classified as secret.. On 4 March 2011, the Polish authorities submitted an action report/plan on this group of cases, providing detailed information on a number of legislative measures taken to address this problem. 99 According to the Polish authorities, these changes have substantially restricted the number of classified materials which can be used in lustration proceedings and no further general measures are required in these cases. 100 The information provided, however, contains no news on progress made in dealing with this issue since the Pourgourides report and remains to be assessed by the CM. According to the information contained in Mr Halicki s letter, a new decree of the Minister of Justice entered into force in March 2013; it broadens the scope of access to classified court materials Romania Background 37. The number of pending cases before the CM at 31 December 2011 was 636, of which 548 were clone or isolated cases. 101 With regard to implementation of Court judgments, the Pourgourides report identified the vast majority of problems in the following areas: - failure to restore or compensate for nationalised property; - excessive length of judicial proceedings and lack of effective remedy; - non-enforcement of domestic judicial decisions; - poor conditions of detention. 38. The Romanian Chamber of Deputies has set up within its Legal Affairs committee a sub-committee specifically mandated to monitor the implementation of Court judgments, a development which was welcomed in the Pourgourides Report. 102 In his reply to the PACE President s letter of 5 April 2011, received by the Secretariat on 23 January 2012, Mr Cezar Florin Preda, Chairperson of the Romanian PACE Delegation, provided further information on the impact of the sub-committee s work on the execution of ECtHR judgments. Moreover, in March 2011, the Romanian Parliament adopted Law No. 29/2011 amending the Law No. 24/2000 on Legislative Technique. According to the new law, any legislative initiative coming from the Government has to be submitted to the Parliament together with a study on the compatibility of the proposed legislation with fundamental rights and freedoms. On the basis of this law, the Government will be obliged to submit to the Parliament, within three months from the date of a ECtHR judgment, the draft law(s) implementing modifications necessitated by the judgment (if need be) Failure to restore or compensate for nationalised property 39. The issue of nationalised property represents a systemic problem linked to the failure of Romania to set up, after 1989, an effective mechanism to restitute or compensate for properties nationalised during the communist period. The ECtHR has, very often, found a violation of Article 1 of Protocol No.1 and Article 6(1) ECHR with respect to this problem, and a total of 267 such cases is currently pending before the CM Matyjek v. Poland (Application no /03, judgment of 24 April 2007), Bobek v. Poland (Application no /01, judgment of 17 July 2007), Jalowiecki v. Poland (Application no /07, judgment of 17 February 2009), Luboch v. Poland (Application no /05, judgment of 15 January 2008), and Rasmussen v. Poland (Application no /05, judgment of 28 April 2009). 98 These are proceedings aimed at exposing persons exercising public functions who worked for or collaborated with the state s security services during the communist period. Pending cases: current state of execution Application no /03, available at: Code=&SectionCode. 99 Action plan, DH-DD(2011)151 of 7 March 2011, available at: de=1&docid= &usage= Ibid., p Supra note Supra note 3, para See list of cases in the Strain Group of cases (Strain and others v. Romania, application no.57001/00, judgment of 21July 2005 (not in this list: pilot judgment Maria Atanasiu and others v Romania, application no /05, judgment of 12 October 2011)), available at: &BackColorInternet=DBDCF2&BackColorIntranet=FDC864&BackColorLogged=FDC

11 40. Due to the continuous flow of such applications and despite the Court s repeated rulings in similar cases, the ECtHR handed down a pilot judgment in the case of Maria Atanasiu and others v Romania. The Court required Romania to put in place simplified and effective procedures to provide redress to victims as a matter of urgency. The time-limit set by the Court for the adoption of appropriate measures was to expire on 12 July Romania submitted to the CM a revised action plan in November 2011, 104 as well as two additional communications in March 105 and April The revised action plan presents preliminary statistical data with regard to restitution and compensation claims, information on the work of the inter-ministerial commission set up in December 2010 to deal with legislative amendments in this respect, as well as a calendar for the implementation of legislative measures. The inter-ministerial commission prepared a draft law aimed at rendering the restitution and compensation process more effective. The draft law envisages, amongst others, the fixing of the amount of compensation at 15% of the property value, and its payment in instalments, due to budgetary restraints. On 11 April 2012 a public debate on this draft law was launched and the Government has now started the text s examination. 107 Noteworthy in this process is the role played by the above mentioned parliamentary sub-committee on monitoring the execution of ECtHR judgments which met repeatedly with the members of the inter-ministerial commission, stressing the need to accelerate the drafting process Despite the progress highlighted by the Romanian authorities in their action reports, as well as in the preliminary data on the progress in the compensation and restitution process, 109 the CM stressed at its 1136 th meeting (March 2012) that the issues raised in this group of cases concerned a large-scale systemic problem and underlined the urgency to make progress in the implementation of ECtHR judgments by deciding to continue their examination of this issue at its 1144 th meeting in June On 15 May 2012, the Romanian authorities submitted to the Committee of Ministers a copy of the draft law on compensation proceedings for former owners of real estate confiscated under the communist rule. 110 At its 1144 th meeting (June 2012), the CM noted with great interest the draft law, but was concerned by the level of compensation, the timetable for its payment in instalments fixed therein and by the absence of justification of these choices based on precise data. 111 Moreover, the CM noted that the Court granted the Romanian government an extension until 12 April 2013 for the implementation of the necessary measures required by the pilot judgment. 112 Consequently, the CM requested additional information regarding, in particular, the justifications for the measures included in the draft law, the present state of the compensation and restitution process, as well as the authorities calendar for completion, adoption, and enforcement of the new law Excessive length of judicial proceedings and lack of an effective remedy 43. The cases of Nicolau v Romania 114 and Stoianova and Nedelcu v Romania 115 concern the excessive length of civil and criminal proceedings and in some cases also the lack of an effective remedy in this 104 See DD(2011)1039F of 16 November 2011, available at: See DD (2012) 212 of 2 March 2012, available at: de=1&docid= &usage= See DD (2012) 424 of 26 April 2012, available at: de=1&docid= &usage= Ibid. 108 See Response of 23 January 2012 to PACE President s letter of 5 April 2011 (Text on file with the Secretariat). 109 DH - DD(2012)212, 2 March 2012, available at: de=1&docid= &usage=2 110 Draft Law Communication from the government of Romania in the Strain and others group of cases against Romania), DH DD(2012)505, 18 May 2012, available at: de=1&docid= &usage= See Decisions concerning this group of cases, Committee of Ministers, 1144th (DH) meeting, 4-6 June 2012, CM/Del/Dec(2012)1144/13, 6 June 2012, items 1-3, available at: orinternet=dbdcf2&backcolorintranet=fdc864&backcolorlogged=fdc Ibid., item 5 of the decisions. 113 Ibid., items 3-4, and 6 of the decisions. See also CM Secretariat s assessment of this draft law in document CM/Inf/DH(2012)18 of 30 May 2012, in which further outstanding issues were identified. 114 Application No. 1295/02, judgment of 3 July Application No /01, judgment of 4 November