European Human Rights Advocacy Centre Bulletinehrac.org.uk/wp-content/uploads/2017/06/EHRAC-Bulletin-27-Winter-… · EHRAC BULLETIN | SUMMER 2017. 3. Mehriban Zeynalova founded Clean

European Human RightsAdvocacy CentreBulletin NO.27/ SUMMER 2017

Welcome to the Summer 2017 edition of the BulletinAt the start of this year, Russia began the process of decriminalising domestic violence, and on 7 February 2017 the decision was signed into law. This deliberate step backwards in the protection from, and prevention of, domestic violence is discussed by Jessica Gavron (EHRAC Legal Director) in our leading article, as she explains why domestic violence should be treated differently from ‘stranger violence’. Jessica also speaks to Mehriban Zeynalova (Founder, Clean World Public Union), who runs a shelter for women in Baku (Azerbaijan), mainly victims of trafficking and domestic violence. Paul Johnston (a domestic homicide review consultant and trainer from the UK) provides expert analysis and advice about how to conduct a domestic homicide review, noting that effective reviews are essential in enabling professionals to learn the lessons of the past and better protect victims in the future.

Reprising the theme of effective investigations, Nino Jomarjidze (Lawyer, Georgian Young Lawyers’ Association) argues that, despite a series of judgments from the European Court of Human Rights, Georgian authorities have failed to ensure institutional and practical independence of investigative bodies. Alice Donald (Senior Lecturer, Middlesex University Law School) explores the roles of national parliaments and other institutions in ensuring human rights protection, and how existing domestic processes can be improved. Turning to human rights protection on the international level, Anne-Katrin Speck (Research Associate, Middlesex University Law School) provides a summary of the European Court’s Annual Report for 2016, highlighting recent trends and some of the challenges facing the Court in coming years.

Two articles tackle the issue of systemic discrimination against ethnic groups. Since Russia’s annexation of Crimea over three years ago, widespread harassment and repression of the Crimean Tatar population has become commonplace, as Ayder Muzhdabaev (Crimean Tatar journalist and activist) describes. Louisa Madsen (LLM student, Middlesex University Law School) reviews Open Society Justice Initiative’s impact report on strategic litigation and related advocacy efforts on desegregation of Roma pupils in schools in the Czech Republic, Hungary and Greece. As the report indicates, strategic litigation before international courts is a means of effecting concrete change to discriminatory and abusive practices – including all of the issues discussed in this edition of the Bulletin – as well as providing redress for victims.

Cover image: Crimean Tatars in Simferopol attend a memorial service marking the 70th anniversary of the deportation of Tatars from Crimea. Photograph: Max Vetrov/AFP/Getty Images

Contents

p3 By decriminalising domestic violenceRussia takes a step backwards

p4 Providing women with protection from human trafficking and domestic violence

p5 Domestic homicide reviews in the UK

p6 Implementing judgments of the European Court

p8 Strasbourg in 2016: Figures and case law trends

p9 The world stays silent on the persecution of Crimean Tatars

p10 The independence and impartiality of investigative authorities in Georgia

p12 The impact of strategic litigation on Roma education

p13 Recent European Court judgments

p16 Information about EHRAC

The views expressed in this publication are the authors’ own, and do not necessarily reflect the views of the European Human Rights Advocacy Centre or Middlesex University.

At a time when the World Health Organization describes violence against women as “a global health problem of epidemic proportions”,2 and it is recognised to be a major cause of death and disability of women aged between 16 and 44 years, Russia has taken a deliberate step backwards in the protection of women.

Previously domestic violence had been an offence under Article 116 of the Criminal Code: battery committed with an aggravating motive. The exhaus-tive list of aggravating motives, from which family violence has now been removed, still includes “hooliganism, political, ideological, racial, ethnic or religious hatred or enmity or hatred or hostility toward a particular social group”. Punishment for this offence includes compulsory labour or imprisonment for up to two years.

The rationale given by MP Yelena Mizulina, who chairs a committee on family and women’s affairs and who proposed the changes, is that a man should not receive a harsher penalty for the violence he metes out on his family than would a stranger.

However, there are good reasons why domestic violence should be treated differently from stranger violence. A number of distinguishing and aggravat-ing features exacerbate the vulnerability of a victim of domestic violence: the perpetrator usually has unrestricted access to the victim in her home; the relationship usually entails a power imbalance or dependency (often economic), generally reinforced by cultural or societal attitudes; the violence is usually repetitive, as part of a pattern of abuse that often escalates and can be fatal; and there is often community acquiescence in the abuse.

The consequences of decriminalising domes-tic violence are not just practical – that an

administrative offence does not go on a criminal record, that the requirements to investigate are limited – the signal it sends is clear: domestic violence is a minor infraction that does not carry the stigma of criminality.

EHRAC is litigating a number of femicide cases from the former Soviet Union before the UN Committee that monitors the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)4 and the European Court of Human Rights,5 in collaboration with regional partners. These cases all tell a similar

story: the victims had experienced years of abuse before making a complaint to the police; the police protocols recording the complaints downgraded the seriousness of the incidents; and the complaints were not investigated, as they revealed ‘no signs of a crime’. In all the cases, the response of the police, if not indifference, was to collude with the perpetrator (‘What did you expect when you got married?’) or to remove the violence from the criminal legal sphere, with its numerous protective requirements, and place it back into the private sphere of the family (‘Why don’t you tell your brothers to beat him up, then he’ll stop?’). In these cases, the failure of the authorities to respond to these women’s complaints with due diligence or at all, resulted in their murder. Clearly, these authorities do not need any additional encouragement to downplay the seriousness of domestic violence.

Domestic violence is deeply rooted in the gender inequality that pervades most societies, and even more so in patriarchal ones. Entrenched traditional values and cultural practices that discriminate against women are not tolerated by CEDAW (Article 5). The decriminalisation of domestic violence flies in the face of this, and will do nothing to counter prevailing attitudes exemplified in the Russian proverb “If he beats you it means he loves you”.

Notes

1. This article was originally published on 20 March 2017 by the London School of Economics Centre for Women Peace and Security blog: https://goo.gl/x13K6q

2. https://goo.gl/aWIQs8

3. https://goo.gl/Fe3k17

4. https://goo.gl/n4zvN3

5. https://goo.gl/YYc31B

ARTICLES

By decriminalising domestic violence Russia takes a step backwardsWhy domestic violence should be treated differently from stranger violence

Jessica Gavron, Legal Director, EHRAC1

In Russia:3

- up to 40% of serious violent crime is committed within the family

- two thirds of homicides are attributable to domestic motives

- 14,000 women die at the hands of their partner or other relatives each year

3EHRAC BULLETIN | SUMMER 2017

Mehriban Zeynalova founded Clean World in 1998 under an umbrella of organisations known as the Alliance on Violence against Women. In 2002 Clean World, led by Zeynalova, went its separate way, and founded the first shelter for women in Baku, Azerbaijan. It was officially registered in 2006 and was accredited by the Ministry of Social Welfare in 2014 (as required by law).

How did you start your shelter?

1996 to 2002 was a difficult period for me. I had nowhere to live with my children and we spent time on the streets, or we would sleep at the Alliance’s office. Eventually in 2002 the market fell and I managed to buy a one-room apartment. The first person I took in was a surrogate mother who came to me. I helped her escape from her home and supported her through the birth, and she stayed with me. In 2002 people were afraid to address issues of violence against women.

Now my shelter has 30 beds in a two-storey building that has been donated to us. We have five bedrooms upstairs with a living room, kitchen and bathroom. On the ground floor there are legal services and psychological assistance.

Who are the women who come to your shelter?

Between 2005 and 2010 the majority of the victims were migrant victims of human traffick-ing.1 They were mostly aged between 16 and 50, and were victims of sexual trafficking. Some had been trafficked from Azerbaijan and had returned. The first victims that came to me were Uzbek – they were brought to me by police from raids on the Baku-Sumgait road. The traffickers were organised criminal groups and most victims were initially sent to the regions outside Baku.

What has the Government done to combat trafficking?

A new state agency on human trafficking was set up under the Ministry of Internal Affairs and offences relating to human trafficking were added to the Azerbaijani Criminal Code

in September 2005.2 In May 2004 there was a Presidential Decree on human trafficking3 and by the end of 2005 a new law was introduced prohibiting human trafficking.4 Azerbaijan had signed the UN Convention for the Suppression of Human Trafficking5 and so the domestic legislative process was monitored by the US State Department.6

Are these legislative provisions implemented in practice?

Yes, implementation of these laws is generally good. There are a few cases of inadequate sen-tences, but prosecutions do take place.

It is a different story with domestic violence.7

Approximately 50-70 women are killed each year by their partners or family members and the Government response is inadequate.8 The Government cites seven deaths a year from domestic violence because it only counts cases that receive media coverage.

At what point do women come to you?

The majority of women in my shelter are escap-ing domestic violence. They come when they have been thrown out or when they feel under serious threat. Currently we have 32 women and children.

Have these women already reported the violence they have been subjected to?

20% have already reported it or report it after coming, but sometimes the police refuse to investigate it. When anyone comes to the shelter and if there are any signs of injury, I immediately report it at the local police station. There are two helpful policemen there, and they make a report if the woman gives permission. Usually women give permission because they know they can change their testimony later. Two sisters in their twenties came to me to escape from their abusive father who had brought them up. They had no official documentation at all and hadn’t been to school. It took a long time for them to tell me their story and they refused to make a complaint.

How proactive do you have to be in the cases you see or hear about?

One father applied to the shelter on behalf of his married daughter. He told me she would either be killed or kill herself. I went to the Deputy Head of the police station and asked him to come with me to her home in a village outside Baku to talk to her. He refused, saying that villagers have traditional values and she would refuse to come with us. He tried to persuade me that there was nothing I could do. It took me two hours to convince him to allow a police officer to accompany me to her house. It was a rural house with tall walls around it. No one opened the door but I could see lights going on and off in different rooms as though someone was running between rooms.

The police officer urged me to go home but I persuaded him to stay an hour and eventually the husband came to the door with his mother.

Providing women with protection from human trafficking and domestic abuse Jessica Gavron (Legal Director, EHRAC) interviews Mehriban Zeynalova, founder of Clean World Public Union, Azerbaijan

Approximately 50-70 women

are killed each year by their

partners or family members but the Government cites only seven deaths a year because it only counts cases

that receive media coverage.


There was a large dog in the yard. The woman we came to see was slim and wearing a hijab, with blue signs of beating under her eyes. Her mother-in-law did the talking. I asked the policeman if I could have a private conversation with the woman. I expected her to refuse, but she accompanied me to a separate room where I explained that this was probably her last chance to leave. She was pregnant and even during her pregnancy she was beaten on her back and on her arms with a hot iron. I didn’t think she would give her testimony at the house, so I told her parents-in-law that she was coming with us. Her family resisted and she finally gave her testimony at 5.30am.

Her husband also came to the police station and was interviewed separately. In front of the Head of Police he declared his love for her and she asked if she could return with him. I told her the decision was hers, but I gave her my phone number. I knew that if I insisted she stay she would later say I made her. It was 40 minutes from the police station to her house. As soon as I got home she called and said “Please – save my life.” The police went and got her and took her to her parents’ home.

A criminal investigation was opened, although later the police downgraded the case. We man-aged to get them to restore the original charges and also discovered that a previous partner of the husband had psychological issues as a result of his abuse. We got the two cases joined and he was convicted and imprisoned for 12 years. This case was publicised and received media coverage, although the husband threatened the media – he had influential supporters.

I would like to take a case to the European Court of Human Rights but you need a strong applicant. This woman was strong – very strong. She would have pursued the case if she hadn’t found justice here.

Thank you for speaking with us, Mehriban.

Notes

1. See also: ‘Human Trafficking in Azerbaijan’, Alexandra Ivakhnik, EHRAC Winter 2015 Bulletin, http://ehrac.org.uk/VaU11

2. Articles 141-1 (trafficking in human beings), 144-2 (forced labour), and 316-1 (disseminating private information about victims of trafficking in human beings)

3. National Action Plan on Combating Trafficking in Human Beings in the Republic of Azerbaijan was endorsed by Presidential Decree on 6 May 2004.

4. Law on Combating Trafficking in Human Beings, adopted 28 June 2005.

5. Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, ratified by Azerbaijan on 16 August 1996.

6. See also: US State Department Report on Traf-ficking 2016, https://goo.gl/ZrSa9a

7. Azerbaijan adopted Law 1058-IIIQ on Domestic Violence on 22 June 2010. However there is no specific provision addressing domestic or family violence in the Criminal Code.

8. See: UN Committee on the Elimination of Violence Against Women Concluding Observations, Fifth Periodic Report on Azerbaijan, 12 March 2015, https://goo.gl/EGEdwm

There are many reasons why a murder commit-ted in a ‘domestic’ setting should be the most predictable form of homicide there is – and arguably, if it could have been predicted, it must have been preventable. There are usually no first-hand witnesses to a domestic homicide, but often someone will know about previous incidents or events that led to it.

Abusers don’t hit, insult, coerce, control or threaten everyone. They do it to the people closest to them and they do it behind closed doors. The systematic exertion of power and control over an intimate partner is wilful and cowardly; abusers choose to abuse, it doesn’t just happen. Domestic abuse affects every com-munity throughout the world. It is happening now among heterosexual couples and in same-sex partnerships, within all age ranges, ethnic backgrounds and economic standing. Victims are usually women, but not always.2

A history of abuse

Domestic violence that results in death will rarely have been a first attack. Almost inevitably there will also be a history of sustained psychological and emotional abuse.3 Organisations and indi-viduals will often have known that something was wrong: neighbours hearing disturbances, doctors treating injuries; the victim being in and out of hospital; social services and housing being involved; and the police attending incidents or knowing about the violent past of a perpetrator. An abuser’s control over a victim includes the ability to decide when and where it will happen. Friends and family may think everything is normal, but things will be very different once the front door closes. The victim may feel fearful, helpless and alone. They may be punched, kicked or strangled, emotionally abused, threatened or demeaned. Through panic or in self-defence, some will retaliate and may even face prosecution themselves. Children who see and hear it suffer abuse just by being there.

When violence leads to homicide, there is a chain reaction of grief that is almost unimaginable. Friends and family blame themselves for not

listening to the victim or for not intervening in their ‘private life’. Many professionals, safeguard-ing volunteers and charity workers feel guilty too, usually for no valid reason. They both want and expect to be held to account when things have gone wrong; the reality is that very little ‘putting the shutters up’ to prevent the true facts from emerging takes place. Overwhelmingly, there exists a genuine desire by professionals to learn lessons and to improve service responses. But

when something terrible has happened, the most unhelpful response is automatically to seek to apportion blame; it is not conducive to openness, honesty, professional reflection and learning.

An effective investigation

Since 2011, Local Authority Community Safety Partnerships (in the UK) have been required by law to review the events that led to a domestic homicide.4 Public bodies such as the police, councils, social services and other community and voluntary-based organisations are expected to participate. An experienced and independ-ent practitioner, who is professionally curious

Looking behind closed doorsDomestic Homicide Reviews in the UK

Paul Johnston, Director, Domestic homicide review consultant and trainer1

The review process should

identify the trail of abuse

and scrutinise contact between

agencies and the victim,

perpetrator and/or their families.


and challenging, should be commissioned to conduct the review. The process should identify the trail of abuse and scrutinise contact between agencies and the victim, perpetrator and/or their families. The review should also assess whether agencies had sufficient and robust procedures and protocols in place, understood and adhered to by their staff – and whether the procedures and protocols were fit for purpose. It should strive to be victim-focussed, to understand what service provision looked like to the victim and/or their family and what choices they were able to make: for example, did the victim know what domestic violence services were available – and/or how to access them? If the answer was ‘No’, the review should examine ways of raising awareness of them. If ‘Yes’ and services were not accessed (or engagement was sporadic), the emphasis should be on establishing what barriers there were to accessing them. Crucial to the process is the contribution of friends and family of the victim and the perpetrator; they are the ones best placed to share their understanding of what happened and why from the victim’s perspective. Other people in the victim’s life, such as work-colleagues and neighbours, can also shed light on what was going on and what, in hindsight, they believe could have prevented the tragedy.

An investigative mind-set and sustained profes-sional curiosity are the key components of an effective review. It should examine the involvement of agencies such as the police, doctors, prosecu-tors, nurses, teachers, probation officers, housing officers and social workers and then challenge them collectively, to determine to what extent they worked individually and together to safeguard the victim. Ultimately, the intention is to strengthen the co-ordinated multi-agency approach to identi-fying and responding to domestic abuse.5

Obstacles to preventing abuse

Recurring themes emanating from domestic homicide reviews have been identified, such

When states appear before the European Court of Human Rights (ECtHR) or the Committee of Min-isters, it is government representatives who take the chair. Yet the executive is not the only arm of the state that has human rights obligations: courts and national parliaments do, too. The parliamentary dimension of human rights protection is being increasingly debated, both at the Council of Europe1 and elsewhere.2

as the effect of the ‘toxic trio’ of alcohol, drugs and mental health issues not being considered appropriately when risk-assessing vulnerabil-ity. Evidence also suggests that where there are mutual allegations of domestic violence (especially where the couple have alcohol problems and chaotic lifestyles) there is a significantly increased risk of extreme violence and potential homicide.6

Manual strangulation is also a recurring theme in domestic abuse and it often indicates either an ongoing pattern of abuse or it foreshadows escalating violence.7 It sends a message to the victim that the perpetrator can take their life, with little effort, in a short period of time and in a manner that may leave little evidence. Separation, pregnancy, the use of knives and a reluctance to engage with agencies are other factors that could make a victim more vulnerable to abuse.

Parliamentarians are uniquely well-placed to press governments to justify their actions or inaction on human rights matters—and where legislative reform is required to remedy a vio-lation, their involvement is indispensable. In addition, greater parliamentary engagement in interpreting and monitoring human rights in the domestic context can help to counter

Conclusion

Professionals need to know what happened in the lead-up to every domestic homicide to be able to learn lessons from it. The learning must be dis-seminated widely and must be accompanied by action plans that are regularly monitored by the Local Authority to ensure required changes are implemented. Missing warning signs of abuse, poor communication, inadequate record-keeping, incomplete risk assessment and inadequate awareness raising about domestic abuse services are all areas that are improving. Reducing the number of victims of abuse isn’t just a pipe-dream. Through the reviews, professionals are becoming truly knowledgeable about domestic abuse, the barriers that exist to reporting it and the way some perpetrators attempt to manipulate the situation, usually by blaming or making false allegations against the victim or by trying to draw the police into colluding with their coercive behaviour. This in-depth knowledge will go a long way to enabling professionals to better protect victims; the next step should be to apply the same level of scrutiny when a possible victim of domestic abuse has committed suicide; no one really knows how many have been driven to such depths of despair at the hands of the very people with whom they should feel safest.

Notes

1. Domestic homicide review consultant and trainer, former advisor to a domestic violence and sexual abuse service for high-risk victims and to a male perpetrator programme and a member of a human rights investigatory body that seeks to bring an end to sexual and gender-based violence in conflict situ-ations. See www.johnstonandblockley.com

2. See, e.g. https://goo.gl/Ke1799

3. https://goo.gl/DNdqeV

4. https://goo.gl/81p8sw

5. Anonymised domestic homicide review reports and summaries are published online in the UK by individual councils.

6. https://goo.gl/USfhEF

7. https://goo.gl/Gjqon2

the perception that human rights bodies con-strain elected politicians undemocratically. In short, a more pro-active role for parlia-mentarians has the potential to increase both the effectiveness and (perceived) legitimacy of the human rights protection system estab-lished by the European Convention on Human Rights (ECHR).

Domestic abuse affects every community throughout

the world. It is happening now

among heterosexual couples and in same-sex

partnerships, within all age-ranges,

ethnic backgrounds and economic

standing.

Implementing judgments of the European CourtThe parliamentary dimension

Dr Alice Donald, Senior Lecturer in the School of Law, Middlesex University


Cross-cutting, specialised and hybrid models

Many parliaments in the Council of Europe have no structures and processes to undertake functions such as vetting of legislation for compatibility with human rights standards and monitoring the executive response to adverse human rights judgments. Others have mecha-nisms which are at best embryonic and at worst ineffective due to a lack of expertise, resources or political will.3

Where some degree of parliamentary oversight of human rights occurs, the institutional arrange-ments adopted vary between three main models. In the ‘cross-cutting’ model, no single committee has a remit covering human rights matters, which are instead dealt with—if at all—by different committees as they arise within their respective mandates. Others have allocated the role to a single human rights committee (the ‘specialised’ model) or to more than one committee, which commonly includes a human rights committee and a legal affairs committee (the ‘hybrid’ model).4

Former Soviet states

In former Soviet states, parliamentary mecha-nisms tend to follow the cross-cutting or hybrid models, and are generally rudimentary. None of the states covered by EHRAC’s work has a mechanism to ensure systematic monitoring of the implementation of ECtHR judgments.

In the Russian State Duma, questions relating to ECHR compliance and ECtHR judgments fall primarily within the remit of the Committee on Constitutional Legislation and State Building and the Committee on Foreign Affairs, yet neither has human rights expressly within its remit.

Several committees of the Verkhovna Rada (Ukrainian parliament) have remits relevant to monitoring implementation—notably the Committee on Legal Policy and Justice and the Committee on Human Rights, National Minori-ties and Interethnic Relations—yet none does so systematically. Ukraine is one of a few Council of Europe member states to have adopted national legislation stipulating the duties of different state actors in implementing ECtHR judgments; how-ever, as Ukraine’s poor implementation record attests,5 the mere existence of such legislation is no guarantee of effectiveness in the absence of genuine political commitment.

The Human Rights and Civil Integration Commit-tee in the Georgian parliament has broad powers to monitor and evaluate human rights.6 The Legal Issues Committee may also become involved when a draft law is required in response to a judgment, usually relating to criminal justice.

Within the National Assembly of Armenia, there is a Standing Committee on State and Legal Affairs and Protection of Human Rights, although legislative vetting is a cross-cutting activity.

The Milli Mejlis (Azerbaijani parliament) has a standing Committee on Human Rights yet there is no evidence of effective activity on its part in relation to monitoring ECHR standards or ECtHR judgments.7

No blueprint

The Parliamentary Assembly of the Council of Europe does not prescribe a single, ideal configuration of parliamentary institutions for ensuring compliance with ECHR standards and ECtHR judgments.8 In states where executive coordination of human rights implementation is weak, there are advantages to having a spe-cialised human rights committee, which can, over time, develop both systematic oversight mechanisms and human rights expertise among its members and staff. At the same time, the specialised model risks creating a ‘silo’ or iso-lated body within parliament, and discouraging the integration of human rights and related rule of law issues into the work of other committees.

The silo effect is exacerbated by the fact that parliamentary human rights committees, where they exist, tend to be viewed by parliamentarians as being of lower status than, for example, com-mittees on justice or legal affairs, as reflected in their size, formal powers and informal standing.

Independent legal advice

One way of mitigating the silo effect is to ensure a cross-cutting approach to the provision of legal advice to parliamentarians. Whatever institu-tional mechanism is chosen, it is crucial that politically-independent advice on human rights law is available to all relevant parliamentary committees. The development of a professional staff provides continuity between parliamentary terms, both in relation to substantive issues and working methods. This is less likely to occur where advisers are political appointees of either individual MPs or party groups.

Executive reporting

Since governments are the gatekeepers of information, regular and timely reporting to parliaments about progress on implementation is another prerequisite of effective parliamentary oversight. Where systematic reporting takes place, this usually consists of an annual report prepared either by the responsible ministry or the Government Agent on adverse ECtHR judgments

and the steps taken by the executive to execute them. Annual reports provide a cumulative public record of a state’s compliance performance which may be used both by parliamentarians and civil society as a basis for strengthening implementa-tion. However, such reports are provided in only around one-third of ECHR signatories: Russia, Ukraine, Georgia, Armenia and Azerbaijan are not among them.

Principles and guidelines

Draft Principles and Guidelines on the Role of Parliaments in the Protection and Realisation of the Rule of Law have been drafted,9 which are akin to the Paris Principles on the status of national human rights institutions.10 These enshrine, among other recommendations, the need for human rights committees to be inde-pendent of the executive, and to have a clear remit and permanent status, transparent working methods and appropriate powers and resources. A further recommendation is for parliaments to

create opportunities for civil society to have direct input into their human rights work. International endorsement of these Principles and Guidelines would be of practical benefit to parliamentarians in devising appropriate mechanisms in order to discharge their human rights obligations.

Notes

1. See, especially, High-Level Conference on Implementation of the European Convention on Human Rights, Our Shared Responsibility, Brussels Declaration, 27 March 2015, paras. B.1.b, B.2.a, B.2.f, B.2.h, and B.2.j, https://goo.gl/cZP6XD; Parliamentary Assembly of the Council of Europe, Committee on Legal Affairs and Human Rights, ‘National parliaments: guarantors of human rights in Europe’, Doc. 12636, 6 June 2011, https://goo.gl/014WDL.

2. Donald, A. & Leach, P., 2016. Parliaments and the European Court of Human Rights. Oxford: Oxford University Press.

3. On Georgia and Ukraine, see Chang, B. & Ramshaw, G., 2016. Strengthening parliamentary capacity for the protection and realisation of human rights: Synthesis report, https://goo.gl/D2p15y .

4. Parliamentary Projects Support Division, Parlia-mentary Assembly of the Council of Europe, The role of parliaments in implementing ECHR standards: overview of existing structures and mechanisms: Background memorandum, PPSD (2016) 19, 2 November 2016, http://goo.gl/hCFB2p

5. http://goo.gl/I75UhY. See p. 10

6. http://goo.gl/g1L0YQ

7. PPSD (2016) 19, p.8.

8. Doc. 12636, para 7.1.1

9. See Chang & Ramshaw, p.4 for a summary.

10. https://goo.gl/jiJEeY

Parliamentarians are uniquely well-placed to press governments to justify their actions or inaction on

human rights matters.


At the end of January 2017, the European Court of Human Rights (ECtHR) released its latest Annual Report,1 alongside its statistics for 2016.2

The statistics appear to mirror, both in terms of figures and thematic case law trends, the politi-cal turbulence that shook Europe last year – one need only think of the attempted coup d’état in Turkey, which led the country to declare a state of emergency and derogate from the European Convention on Human Rights (ECHR).3

Statistics

The report identifies cases brought to Strasbourg from Turkey, as well as Article 3 complaints about detention conditions (especially in Hungary and Romania), as key causes of the increase in the number of incoming applications in 2016, revers-ing the trend from the previous two years.4 This development, together with a decrease in the Court’s overall productivity due to a (welcome) shift in its focus towards processing and adjudicating

more complex and time-consuming applications,5 resulted in a staggering 23% increase in the total number of applications pending before the Court at the end of 2016 (79,750) compared to the year before (64,850).6

Two other figures may give rise to particular concern. First, the statistics show a worrying influx of high-priority applications reaching the Court, the pending number of which totalled nearly 20,000 at the end of last year. Second, the high (and, in fact, increased) volume of repetitive cases – nearly 35,000 – continues to raise doubts about Contracting States’ capac-ity or willingness to effectively implement the ECHR domestically.7 Effective implementation of Convention standards at the national level is, however, a prerequisite for ensuring the principle of subsidiarity upon which the ECHR system is based, and for safeguarding the latter’s effective-ness and authority. The system thus continues to face significant challenges.

The Court’s Annual Report also sheds light on significant case law developments, including in the regional and thematic fields of EHRAC’s litigation. Russia had the dubious honour of topping the chart of countries with the most judg-ments finding at least one Convention violation (222 out of a total of 228 judgments) in 2016.8 The Court found violations in all 16 judgments against Azerbaijan; in 13 out of 15 judgments against Armenia; in all four judgments issued against Georgia; and in 70 out of 73 judgments against Ukraine. Ukraine moreover has the larg-est percentage of pending cases before the Court (22.8%, or 18,171 cases).9

Case law trends

Turning to some noteworthy thematic case law developments of 2016, the Court considered the scope of Article 3 in several cases con-cerning detention and expulsion: the Grand Chamber established specific standards for juvenile detention, especially regarding the protection of the health of minors deprived of their liberty,10 and clarified minimum require-ments regarding personal space per detainee in shared cells.11 It also made significant inroads into clarifying its position on expulsion in three cases concerning, respectively, the distribution of the burden of proof regarding the existence of a ‘real risk’ of treatment contrary to Article 3 upon return;12 the duty of an expelling state to investigate an individual risk factor not invoked by an asylum seeker;13 and the deportation of a seriously ill foreigner.14 In an important freedom of expression case, the ECtHR underscored the importance of the independence and irremov-ability of judges.15 Moreover, the Court explored several distinct themes including, among others, disability rights,16 LGBT rights issues,17 and hate crime. Regarding the latter, the Court elaborated on state authorities’ procedural obligation under Article 8 ECHR to unmask any racist motive in incidents of threats and abuse.18

Strasbourg in 2016: figures and case law trendsThe European Court of Human Rights’ annual report 2016

Anne-Katrin Speck, Research Associate at the School of Law, Middlesex University

A spotlight on EHRAC’s litigation

Finally, two of EHRAC’s cases feature in the Jurisconsult’s Overview19 of the most salient cases of the year:20

Frumkin v Russia (No. 74568/12) 05.01.16 con-cerned the applicant’s arrest and detention during the dispersal of the 2012 Bolotnaya Square demonstration in Moscow, and pro-vided an opportunity for the ECtHR to clarify the State authorities’ positive obligation under Article 11 to communicate openly, clearly and promptly with leaders of a protest in order to

ensure its peaceful conduct.21 It is of note that, in finding a violation inter alia of Article 11, the ECtHR had regard to the overall context in which the rally had been planned.

Rasul Jafarov v Azerbaijan (No. 69981/14) 17.03.16 adds to Strasbourg’s emerging body of case-law under Article 18 ECHR (restrictions of rights for a purpose other than the one pre-scribed in the Convention).22 For the first time, the ECtHR found a violation of that provision on account of the repression of a human rights defender for his professional activities, thereby elaborating on “the factual elements which can lead to a conclusion that a restriction under domestic law was applied for reasons other than those prescribed by the Convention”.23


The Crimean peninsula, annexed by Russia in 2014, has swiftly degenerated into the scene of the greatest repression being conducted anywhere in the entire country.

The targets of the Kremlin’s crackdown are the Crimean Tatars, the ethnic group that originally formed the Crimean nation on the Black Sea peninsula. Between the 13th and 18th centuries, the Tatars enjoyed their own state, and since 2014 they have been campaigning to return their homeland to Ukrainian rule. For this they have become the collective enemy of Russia.

They are now victims of hate and persecution, and not for the first time in their tragic history. In May 1944, Joseph Stalin ordered the mass resettlement of Tatars, after accusing them of collaborating with the Nazis. At the time they made up about a fifth of the total population

of the Crimean peninsula. More than 230,000 people, including almost the entire Crimean Tatar population, were deported, mostly to Uzbekistan. Those who survived the deportation were only allowed to return after perestroika, 45 years later.2 Even then, communist authorities gave them a hostile reception.

After 25 years in independent Ukraine, the Tatars had rebuilt their communities from scratch. They formed the only nation in the former Soviet Union with its own democratic governing body, the Mejlis, with no help from the state. Thanks to this elected body and its long-time head, Mustafa Dzhemilev, a Soviet-era dissident, Crimean Tatars became semi-autonomous within Ukraine, while supporting the country’s pro-European leanings. In 2014, the Tatars boycotted the sham (and illegal) referendum organised by Russia. The Kremlin hailed the

result as a “vote” for Crimea to join the Russian Federation. Their dissent kick-started a new and brutal phase of Tatar oppression.3

Today, there are fewer than 300,000 Tatar people in Crimea – under 15% of the peninsula’s population. In the two years since annexation more than 21,000 Tatars have left because of an intensifying atmosphere of hatred and repres-sion, and the exodus shows no signs of slowing.4 The nature of this repression is highlighted by the fact that more than 90% of those in prison in the region are accused of political crimes. A large majority of those declared missing since the annexation are from the Tatar community. Mejlis leaders such as Dzhemilev and Refat Chubarov, alongside other public figures and journalists of Tatar origin, have been forced to leave Crimea, prohibited from visiting their homeland by Rus-sian authorities.

The first signs of the crackdown started in 2014, when Tatars were forbidden from holding mass gatherings, even on 18 May, the official day for commemorating the 1944 deportations. In spring 2015, the Russian authorities banned Tatar TV channels and press outlets. ATR, the Crimean Tatar TV channel, was closed down, as well as the radio station Meydan FM and even a children’s TV channel, Lale.

Since then, the situation has become increas-ingly dangerous, to the point that parents now accompany their children to school for fear of abduction. Young Tatars are even told not to wear clothes with ethnic elements. Last year, Nariman Jelyalov, the deputy president of the Mejlis, published a personal safety manual, recommending Tatars only move around in groups in well-lit public places. In order to maintain the atmosphere of fear among Tatars, Russian security forces – complete with dogs and armed masked men – have been conducting regular

“Putin’s new ghetto has no barbed-wire fence – just surveillance and harassment”The world stays silent on the persecution of the Crimean Tatars

Ayder Muzhdabaev, a Crimean Tatar journalist and activist

Notes

1. ECtHR Annual Report 2016 (Annual Report), https://goo.gl/Tkorzs.

2. Analysis of statistics: https://goo.gl/XjVcgv; Pie chart of pending cases at the end of 2016, https://goo.gl/wK3bJq; Violations by article and state, https://goo.gl/VNWOY1.

3. Three Council of Europe member States are currently derogated from the ECHR under Article 15: France, Turkey and Ukraine. See Annual Report, p.9

4. In 2016, 53,500 applications were allocated to a judicial formation (an increase of 32% compared to 2015). See Analysis of statistics, p.4

5. After the backlog of clearly inadmissible cases decided by a single-judge formation was virtually eliminated, “the real challenge facing the Court continues to be the Chamber cases, which currently total almost 28,500, including 6,000 priority cases”. Annual Report, p.5

6. Ibid., pp.181, 191

7. This concern is exacerbated by the fact that five states accounted for nearly 70% of applications pending on 31 December 2016: Ukraine (22.8%), Turkey (15.8%), Hungary (11.2%), Russia (9.8%), and Romania (9.3%). Ibid., p.193

8. Violations by Article and by State. Russia was followed by Turkey (77 judgments), Romania (71), Ukraine (70), Greece (41) and Hungary (40)

9. Annual Report, p.192

10. Blokhin v Russia [GC] (No. 47152/06) 23.03.16, https://goo.gl/1q3xQD

11. Muršić v Croatia [GC] (No. 7334/13) 20.10.16, https://goo.gl/0sJSbN

12. J.K. and Others v Sweden [GC] (No. 59166/12) 23.08.16, https://goo.gl/C2T2Nb

13. F.G. v Sweden [GC] (No. 43611/11) 23.03.16, https://goo.gl/sEm4eE

14. Paposhvili v Belgium [GC] (No. 41738/10) 13.12.16, https://goo.gl/OUdIQb

15. Baka v Hungary [GC] (No. 20261/12) 23.06.16, https://goo.gl/yokqU9

16. Annual Report, pp.149, 154-157

17. Ibid., pp.148-152.

18. R.B. v Hungary (No. 64602/12) 12.04.16, https://goo.gl/ziY2ir. See also Sakir v Greece (No. 48475/09) 24.03.16 March 2016, https://goo.gl/JByjKK (concerning the authorities’ failure to respond adequately to a racist attack against an Afghan national in the centre of Athens).

19. Within the ECtHR’s Registry, the Jurisconsult is responsible for ensuring the consistency of the Court’s case law and supplying opinions and information to, in par-ticular, the judicial formations and members of the Court; see Rule 18B of the Rules of Court, https://goo.gl/VfRE6Q. As part of the Court’s Annual report, the Directorate of Jurisconsult each year provides an overview of the main developments in the Court’s case law.

20. The Court in 2016 also accepted the request of the Georgian Government for refer-ral of EHRAC’s case of Merabishvili v Georgia (No. 72508/13) 14.06.16 (concerning the pre-trial detention of the former Georgian Prime Minister) to the Grand Chamber, http://goo.gl/frMjEz. A hearing on this case was held before the Grand Chamber on 8 March 2017, the webcast of which is available at: https://goo.gl/ogsTbV.

21. Annual Report, p.137-139.

22. Ibid., pp.163-165.

23. Ibid., p.163.


raids. People are fined, arrested and put on trial en masse for anything that reminds the Rus-sian authorities that Crimean Tatars exist, from national flags to supposedly banned literature.

On 29 September 2016, the entire system of Crimean Tatar self-rule, comprising more than 2,000 elected delegates, was declared to be an extremist organisation by the Supreme Court of Russia, and participating members are now being threatened with incarceration for taking part in “illegal gatherings”.5

For his support for the territorial integrity of Ukraine, Akhtem Chiygoz, the deputy chair-man of the Mejlis, has been in prison for 18 months, while Ilmi Umerov, a former head of the Bakhchisarai district administration – and the ancient capital of the Crimean Tatars – was put in a psychiatric ward for a humiliating psychiatric examination. He was eventually declared sane.6 There are now more than 20 Crimean Tatars in Russian prisons, and the number is steadily increasing.7 Others have faced kidnap, and even death. The most infamous abduction in Crimea happened in May 2016, when a group of people in military uniforms abducted Ervin Ibragimov, one of the leaders of the World Congress of Crimean Tatars, in front of CCTV cameras. His fate is unknown. Many in the Tatar community presume he is dead.

There are no barbed-wire fences in this new hybrid ghetto of Vladimir Putin’s – yet. Instead of wire there is hate-filled TV propaganda, total surveillance and constant harassment. The Tatars have been picked for the outcast role. Russian authorities in Crimea are busy erecting monu-ments to the persecutors of the Tatars: Stalin and Catherine the Great. Crimean Tatars are afraid to speak to journalists and human rights activists – and to each other. Meanwhile, their neighbours

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

This article explores the Georgian Government’s failure to ensure the institutional and practical independence of investigative bodies, in spite

are busy writing reports to the authorities and want to know when the Tatars will get the hell out of “our Russian Crimea”.

Crimean Tatars are banned from speaking their native language at work. If they use it outside their own areas people insult them. Parents from Russian and other non-Tatar families prefer to limit their and their children’s contact with Crimean Tatars.

There is a tradition in “Russian Crimea”: military helicopters circle low above homes during raids carried out on dates that mark tragic events in Crimean Tatar history. They do it for no apparent reasons – just to make the windows shake.

I do not know how many people in Crimea have to be killed, driven out and deprived of their human dignity before a world that once conquered fas-cism stands up and defends Crimean Tatars. The international community could, for example, invoke special sanctions on Russia for bringing

of some general measures being undertaken by the Government on the basis of judgments from the European Court of Human Rights (ECtHR) delivered against Georgia in the Gharibashvili group of cases.2 The article firstly argues that the adopted general measures have been inadequate to ensure the independence and impartiality of investigative authorities nationally. Secondly, this article examines some of the deficiencies in the domestic legislation regarding the requirements of impartiality of investigative bodies, namely the importance of creating an independent

the practice of systemic persecution on the basis of ethnicity back to Europe. I am certain that until the international community speaks out, the situation will become catastrophically worse. And in years to come, many will feel ashamed for staying silent today.8

EHRAC, Memorial Human Rights Centre (Moscow) and the Ukrainian Helsinki Human Rights Union (Kyiv) are representing the Mejlis and its leaders before the European Court of Human Rights, arguing that its designation as an extremist organisation and the suspension of its activities is a violation of the right to freedom of association (Article 11 ECHR); and that it has been banned – and its members persecuted – to punish them for their political position (Article 18). They also complain that the Russian Courts disregarded their status as a representative body of the indigenous people of Crimea, violating the prohibition of discrimination (Article 14). They further allege that they did not have access to a fair trial (Article 6), and they could not have anticipated that their activities would be in violation of anti-extremist legislation (Article 7).9

Notes

1. This article was originally published by the Guardian New East Network on 12 December 2016, https://goo.gl/zgDjv1

2. A series of political and economic liberalisation reforms in the USSR under Mikhail Gorbachev.

3. See: ‘Crimea’s Tatars’, Graham Donnelly, EHRAC Winter 2014 Bulletin, http://ehrac.org.uk/85l78

4. See: ‘Problems on the Crimean Peninsula’, Graham Donnelly, EHRAC Summer 2016 Bulletin, http://ehrac.org.uk/N2SV0

5. https://goo.gl/aHcp2O

6. https://goo.gl/KuDa4y

7. https://goo.gl/QSbUZt

8. See: ‘Moscow’s approach to the Crimean Tatars’, Graham Donnelly, EHRAC Winter 2015 Bulletin, http://ehrac.org.uk/R9WJo

9. http://ehrac.org.uk/Mv7aF

investigative mechanism with prosecutorial and investigative powers as an effective tool to execute the general measures undertaken on the basis of the ECtHR judgments.

Execution status of the Gharibashvili group of cases

The Committee of Ministers (CM) has super-vised Georgia’s implementation of the ECtHR’s Gharibashvili group of judgments since 2008. This group of six judgments concerns the

The independence and impartiality of investigative authorities A continuing problem in Georgia

Nino Jomarjidze, Lawyer, Georgian Young Lawyers’ Association

People are fined, arrested, put on trial en masse

for anything that reminds the Russian

authorities that Crimean Tatars

exist, from national flags to supposedly banned literature.


lack of an effective investigation into allega-tions of violations of the right to life and of ill-treatment (procedural limbs of Articles 2 and 3 of the European Convention on Human Rights (ECHR)). The judgments include the case of Tsintsabadze v Georgia, in which the Georgian Young Lawyers’ Association and EHRAC represented the applicant before the ECtHR.3 This case concerned the death of the applicant’s son at a penitentiary institution, where prison officers discovered him hanged in the prison’s storeroom. The applicant con-sistently denied that her son had committed suicide and claimed that he had been killed and then hanged to conceal the murder. The ECtHR found a violation of the procedural limb of Article 2 on account of deficiencies and omissions identified in the course of the inves-tigation into the death of Mr. Tsintsabadze. Also part of the Gharibashvili group are the cases of Mikiashvili4 and Dvalishvili v Georgia5 which concern the failure to investigate the excessive use of force by police in the course of the applicants’ arrest and/or their detention at the police department. In both cases the ECtHR found the violation of substantive and procedural limbs of Article 3.

Despite differences in factual circumstances, in all of these cases the ECtHR concluded that the official investigations conducted at the material time lacked the requisite independence and impartiality due to the institutional connection, and even hierarchical subordination, between those implicated and the investigators in charge of the cases.

The CM most recently examined the present cases in December 2016 and called upon the Georgian authorities to intensify “their efforts to remedy the deficiencies in domes-tic legislation regarding the requirements of impartiality of investigative bodies, in investigations to which Articles 2 and 3 of the Convention apply.”6

Overview of the national legislation

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

The amendments to the Law on the Prosecutor’s Office puts in place a new procedure for the appointment of the Chief Prosecutor and rules for the appointment, dismissal, promotion and discipline of city, regional and other prosecutors.

Yet the amendments still do not ensure sufficient protection from political interference with the Chief Prosecutor’s selection and appointment procedure. This is due to candidates being nominated by the Ministry of Justice, and subsequently discussed and approved by the Government. Thus the process remains essentially political in nature and attempts to depoliticise the Office of the Chief Prosecutor have not been successful.7

In addition, Order 34 provides that crimes alleg-edly committed by law enforcement officials fall under the jurisdiction of the Prosecutor’s Office of Georgia (POG). However, the Order retains a discretion for other investigative bodies to investigate crimes allegedly commit-ted by law enforcement officials in particular circumstances. For example, under the Order investigators of the Ministry of Corrections (MOC) are entitled to investigate crimes committed on the territory of the penitentiary institutions of the MOC. The investigative juris-diction of the MOC covers crimes committed by both its employees and prisoners. In order to carry out the investigation the MOC has created an Investigative Division (ID). Hence, when the ID investigates a crime allegedly committed on the territory of the penitentiary institution by its employees, legitimate questions arise regarding independence and impartiality of the investigation since the ID is a department within the MOC. Furthermore, under the legislation, the Prosecutor’s Office has a legislative option to transfer a case from the MOC to the POG. Nevertheless, this option cannot guarantee the institutional independence of the investiga-tion as the power to transfer a case is merely discretionary, not compulsory.8

Furthermore, one of the most significant disad-vantages of the legislation is the wide discretion granted to the Chief Prosecutor to transfer a criminal case from one investigative body to another without providing any justification or supporting arguments for the decision.9

Proposed draft law to create an effective independent investigative mechanism

The lack of institutional independence while investigating crimes allegedly committed by law enforcement officials therefore remains a challenge in Georgia.10 Concern about the sys-temic failure to conduct effective investigations has also been raised by both international and national organisations.11

In order to eradicate such structural and/or systemic deficiencies and guarantee the inde-pendence and impartiality of investigations, it is of the utmost importance to establish an independent investigative mechanism with a mandate to ensure the institutional independ-ence of investigations in criminal cases. Georgian NGOs, supported by international actors, have contributed to a draft law on setting up this independent mechanism.12

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

Conclusion

Based on the above, the draft law proposes a mechanism with a mandate and competence that will guarantee the independence and impartiality of the investigative bodies. Fur-thermore, the draft law is the only existing solution to counter the culture of impunity and the systemic failure of the state to effectively investigate crimes allegedly committed by law enforcement officials as well as for the full exe-cution of the general measures communicated by the ECtHR to the Georgian Government in the Gharibashvili group of cases. Unfortunately, at the time of writing the Georgian Government has not undertaken any steps to create the pro-posed independent mechanism, despite being continually urged to do so by international and regional actors.

Notes

1. See, for example, https://goo.gl/KLglP3 or https://goo.gl/n1ENAR, https://goo.gl/dvztwX.

2. https://goo.gl/JAAZ0T

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

4. Mikiashvili v Georgia (No. 18996/06), 09.10.12, https://goo.gl/2s71Is

5. Dvalishvili v Georgia (No. 19634/07), 18.12.12, https://goo.gl/BQz9UC

6. https://goo.gl/JAAZ0T

7. https://goo.gl/Hlmzxe

8. https://goo.gl/w5yjqU

9. https://goo.gl/g6Xk5v

10. https://goo.gl/KLglP3

11. See, for example: https://goo.gl/n1ENAR, https://goo.gl/dvztwX

12. https://goo.gl/B5A3yD, https://goo.gl/BCq71r


In spring 2016, the Open Society Justice Initia-tive published a series of impact reports on how strategic litigation can be used to effect social change, break down injustice and open new paths of human rights protection. This article summarises one of these reports on Roma School Desegregation, which aims to “assess the varied impacts of strategic litigation and related advocacy efforts [...] in the comparative framework of three European countries (Czech Republic, Hungary, and Greece), all of which fall under the jurisdiction of the European Court of Human Rights”.1

Context

The report carries out an historical analysis of the segregation of Roma students prior to the initiation of strategic litigation initiatives on this issue. In the 1980s, Roma students in the Czech Republic were 28 times more likely to be placed in a segregated school for students with disabilities than non-Roma students. In Greece, Roma were officially stateless until 1955 and it was not until 1978 that all Roma in Greece were formally recognised as citizens.2 Attempts were made to integrate Roma children into the mainstream education system. However, these attempts were only marginally effective, often countered with arguments that there was insuf-ficient space in schools to accommodate Roma students, and that Roma lacked the necessary paperwork for enrolment. The result was that in 2010-2011, over 40% of school-age Roma children in Greece were not attending school.3

In Hungary, Roma students were ten times more likely to be placed in ‘special’ classes or schools for pupils labelled as ‘mentally disabled’ as recently as the early 2000s.

Case studies

The report argues that the most important impact of strategic litigation on the segrega-tion of Roma students stems from the finding that discrimination of Roma in education was unlawful. The judgment in DH and others v the Czech Republic created conditions for change by challenging an entrenched 40-year practice of Roma segregation in the Czech Republic schooling.4 The judgments in DH and Horvath and Kiss v Hungary5 impacted domestic policy: both the Czech Republic and Hungary commit-ted to collecting ethnically disaggregated data about students in special education.6

However, not all domestic policy adopted in the

wake of strategic ligation has been positive. Indeed, the Hungarian ‘re-segregation’ case of Nyiregyhaza has made clear that the current administration is willing to enact policies, under the banner of ‘catch-up’, that result in the segregation of Roma students.7 Nevertheless, such litigation has shone light on systemic and previously hidden discrimination.

The impact of the judgments against Greece is somewhat more limited. Following the Sampanis ruling (2008), the Greek authorities abolished special classes and established a new school to integrate Roma and non-Roma students in edu-cation. Yet the school was merely renamed.8 And “the only students who attended [that school] were Roma.”9 The school was therefore again denounced in the 2012 Sampani10 judgment, which found that the operation of the new school resulted in discrimination.11 Following the 2013 Lavida judgment, the authorities announced that they would take action to integrate Roma and non-Roma students into one school.12

Findings to date

Change on the ground has been slow. In the Czech Republic, the actual proportion of Roma amongst pupils educated in the same category as people with mild mental disabilities is around 26-35%.13 However, there has been a move away from systemic diagnosis of “mild intellectual disability” for all Roma children.14

In Greece, a lack of data makes it is impossible to establish whether any changes can be attrib-uted to strategic litigation. There are reports of students who have been moved to mainstream schools and the closure of a Roma-only school. However, without statistics it is difficult to draw any conclusions as to any wider impact. A similar picture emerges in Hungary. Nevertheless, it should be noted that the judgments ordering the collection of data are relatively new, and thus it may be too early for sufficient data to have emerged to draw any firm conclusions.

Obstacles

It is important to consider the wider picture when looking at the impact of strategic litigation: for instance, few Roma knew about the judgments and the reforms recommended, while there remain systemic issues around resources, inclu-sion and the situation facing Roma students once they leave school. For example, in Greece, the closure of a Roma-only school could lead “not

to an integrated education, but to no education at all.”15 Roma students attending mainstream education would have to take public transport, resulting in a financial burden on families; parents were also concerned about social exclu-sion and discrimination by teachers and other pupils.16 Some parents argued that there was little value in sending their children to main-stream schools given discrimination against Roma is still prevalent in the workplace and when seeking employment.17

Conclusion

The report finds that the judgments have been effective in instigating policy change and efforts to reduce the segregation of Roma children at school.18 Yet, the judgments are of little value if taken in isolation. International interest follow-ing the DH case, and the mobilisation of, and advocacy by, interested groups both domestically and internationally, has been important to effect continued change. In Hungary, for example, there is concern that new policies may attempt to con-tinue segregation of Roma students. Judgments in Greece remain unimplemented. Against this backdrop, the importance of judgments chal-lenging such policies, arising from successful strategic litigation, cannot be understated.

Notes

1. Strategic Litigation Impact report (SLIR), p.9, https://goo.gl/e5T0yn

2. SLIR, p.34.

3. SLIR, p.25

4. D.H and Others v the Czech Republic (No. 57325/00) 13.11.07, https://goo.gl/NrHNBt

5. Horvath and Kiss v Hungary (No. 11146/11) 11.02.11 https://goo.gl/uQRb8Q

6. SLIR, p.36.

7. SLIR, p.45. “Catch-up” education meant placing Roma students in separate classrooms to address their needs until they were ready to be integrated into mainstream classrooms. Schools were provided with extra funding as an incentive to provide catch-up education.

8. Sampanis and Others v Greece (No. 32526/05) 05.06.08, https://goo.gl/AnZSNq

9. SLIR, p.41

10. Sampani and Others v. Greece (No. 59608/09) 11.12.12 https://goo.gl/1cNzuG

11. SLIR, p.41

12. Lavida and Others v Greece (No. 7973/10) 30.05.13, https://goo.gl/uGHU7u

13. SLIR, p.46.

14. SLIR, p.48.

15. SLIR, p. 59

16. SLIR, p. 58

17. SLIR, p.59

18. SLIR, p.80

Strategic litigation impactsRoma school desegregation: A review

Louisa Madsen, LLM student at Middlesex University School of Law


Berdzenishvili and others & Dzidzava v RussiaECHR: Judgment Prohibition of collective expulsion, right to life, prohibition of torture

(Nos. 14594/07 et al., & 16363/07), 20.12.16

Facts

In Berdzenishvili, the applicants were 20 Geor-gian nationals who had resided in Russia for up to fourteen years. Many had valid residency and work permits. Following a serious breakdown in diplomatic relations between Russia and Georgia in 2006, they were subjected to identity checks, arrested, detained in appalling conditions and expelled en masse from Russia. In Dzidzava, the applicant’s husband, Tengiz Togonidze – who had asthma and whose circumstances were similar to the applicants in Berdzenishvili – died immedi-ately following his transportation to Domodedovo airport for deportation. Ms. Dzidzava argued that the Russian authorities were aware of Mr. Togonidze’s health condition, but failed to take the necessary measures to prevent his death.

EHRAC and the Georgian Young Lawyers’ Association represented 11 of the applicants in Berdzenishvili and Ms. Dzidzava.

Judgment

In Berdzenishvili the Court found that the expulsion of the applicants was unlawful, and was not carried out following a “reasonable and objective” assessment of each case. There was consequently a violation of the prohibition of the collective expulsion of aliens (Art. 4, Protocol 4). In addition, the applicants’ arrests and detentions were arbitrary and, practically, they were unable to seek a review of the lawfulness of their detention (Art. 5(1) and (4)). Referring to its 2014 decision in Georgia v Russia (I) (No. 13255/07) 03.07.14, the Court reiterated its finding that: “the conditions of detention caused undeniable suffering to the Georgian nationals” in violation of Art. 3 ECHR. Relying on its pilot judgment in Ananyev and others v Russia (Nos. 42525/07 and 60800/08) 10.04.12, the Court found that the applicants had no access to an effective remedy to challenge their treatment in detention, in breach of Art. 13 ECHR (with Art. 3). The applicants were awarded a total of €775,000 compensation.

In Dzidzava, the Court established a breach of

both the substantive and procedural limbs of Art. 2 ECHR, finding that the circumstances of Mr. Togonidze’s death were “highly inconsist-ent with a methadone overdose” (the Russian Government’s explanation for his death), and that the explanation was “not satisfactory and convincing”; further the investigation into Mr. Togonidze’s death was inefficient and ineffec-tive. With regards to the Art. 3 arguments raised, the Court found that the authorities’ failure to provide Mr. Togonidze with appropriate medical treatment; the general conditions of his deten-tion, and the unventilated transport to the airport were “particularly inhuman and degrading”, and that Ms. Dzidzava had no access to an effective remedy (Art. 13 with Art. 3). Ms. Dzidzava was awarded €40,000 compensation.

Comments

The appalling treatment of Tengiz Togonidze in over-crowded and airless conditions was particularly shocking given his obvious need for urgent medical care, and led directly to his death during the deportation process. The cases have established a plethora of egregious human rights violations arising directly from the Russian authorities’ policy decision to arrest, detain and expel Georgian nationals en masse. The Court’s judgment underscores the point that collective expulsions can never be justified.

Barakhoyev v RussiaECHR: Judgment Prohibition of torture; arbitrary detention

(No. 8516/08), 17.01.17

Facts

In January 2007 Sultan Barakhoyev, the appli-cant, was walking down the street with a friend in Kartsa (North Ossetia) when three cars pulled up and several men in plain clothes approached them. Mr Barakhoyev was immediately pushed into one of the cars, while his friend managed to escape. He was taken to the police department where he was repeatedly beaten, punched and kicked. The policemen also shouted insults and threats against the Ingush population, and put a plastic bag over his head. After the applicant lost consciousness, they poured cold water on him to revive him.

The police planted a grenade on Mr Barakhoyev and later charged him with illegal possession of firearms. A medical examination of the applicant, conducted the day after his release, confirmed multiple bruises on his body. On 19 February

2007, the investigation into Mr Barakhoyev’s allegations of ill-treatment commenced, but was subsequently suspended and re-opened on sev-eral occasions. This investigation is still pending.

Mr Barakhoyev and, after his death, his mother, were represented before the ECtHR by EHRAC and Memorial Human Rights Centre.

Judgment

The ECtHR found that the State had breached Art. 3 ECHR under its substantive limb, regarding the applicant’s torture while in police custody, as well as its procedural obligation to conduct an effective investigation into allegations of ill-treatment. The lack of a proper record of Mr Barakhoyev’s arrest and detention by the authorities also led to a strongly-worded finding of a violation of the right to liberty (Art. 5(1) ECHR): “the absence of such a record must in itself be considered a most serious failing…unrecorded detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention and discloses a most grave violation of that provision. The absence of such a record…must be seen as incompatible with the requirement of lawfulness and the very purpose of Article 5 of the Convention.”

The applicant was awarded €19,500 in compensation.

Comment

In the present case, the authorities failed to con-duct a proper and effective criminal investigation into allegations of severe ill-treatment, despite clear medical evidence of the injuries inflicted. The investigation, so far pending for over ten years, has failed to produce any tangible results. This case is just one example of widespread vio-lence and arbitrary detention of Ingush people in North Ossetia since 2005. The European Court’s findings identify a systemic problem in North Caucasus region: the lack of accountability of the State for gross violations of human rights, including ill-treatment and undocumented deten-tion, and a clear lack of respect for human rights.

Kulykov and others v Ukraine ECHR: Judgment Right to a fair trial

(No. 5114/09 et al.) 19.01.17

Facts

The 18 applicants were all domestic court judges in Ukraine, ranging from Supreme Court to District level. Proceedings were brought against

RECENT EHRAC HUMAN RIGHTS CASES


them for alleged ‘breach of oath’, as established by the High Court of Justice (HCJ), resulting in their dismissal. In each case, the HCJ’s decisions were submitted either to the Verkhovna Rada (Ukrainian Parliament) or to the President of Ukraine (depending on the method of judicial appointment) for a final decision. The applicants all unsuccessfully challenged their dismissals before the Higher Administrative Court (HAC) and other domestic courts.

Eleven of the applicants were represented by EHRAC before the ECtHR.

Judgment

The ECtHR held that there had been a violation of Art. 6(1) ECHR as the domestic bodies dealing with the applicants’ cases lacked independence and impartiality. In its decision, the Court reiterated its finding in Oleksandr Volkov v Ukraine (No. 21722/11) 9.01.13, concluding that the current procedure between the HCJ and Parliament disclosed a number of general

judicial accountability in the domestic system. These amendments were passed by Verkhovna Rada on 2 June 2016. The reforms aim to address the general measures indicated by the ECtHR in Volkov, in line with a Council of Europe project to strengthen judicial accountability in Ukraine. To address the vagueness of the term ‘breach of oath’, the new constitutional provi-sions explicitly outline instances when a judge may be lawfully dismissed, while the new Law on the Judicial System and Status of Judges sets out the penalties to be applied for instances of disciplinary liability. One of the applicants repre-sented by EHRAC, Petro Kozvel, was reinstated to his judicial position in Kyiv in March 2014.

A further case concerning the dismissal of the President and judge of the Kyiv Admin-istrative Court of Appeal, Denisov v Ukraine (No.76639/11), was relinquished to the Grand Chamber of the ECtHR on 25 April 2017. The applicant, Anatoliy Denisov, is represented by EHRAC. The Grand Chamber will hear the case in October 2017.

and structural shortcomings that ultimately compromised the principles of independence and impartiality within the judiciary and, crucially, that subsequent judicial reviews failed to remedy those shortcomings. The Court also held that there was a violation of Art. 8 ECHR. Finding no reason to depart from its judgment in Volkov, the Court held that the dismissals amounted to an interference with the judges’ private and family lives and that the interference did not fulfil the ‘quality of law’ requirement, in breach of the applicants’ right to respect for private life. The applicants were awarded a total of €78,000 in compensation.

Comments

This case continues the ECtHR’s approach, established in Volkov, to judicial dismissals that occurred in Ukraine for alleged ‘breach of oath’. In 2015 and 2016, several legislative and con-stitutional reforms were made in Ukraine with the intention of strengthening the independence and impartiality of the judicial system, and reinforcing

Lashmankin and others v RussiaECHR: Judgment Freedom of assembly

(No. 57818/09 et al.), 07.02.2017

Facts

The 23 applicants in this group of cases are from all over Russia, and had planned public events of various sizes and for varying causes between January 2009 and December 2012. In each case (excepting a single-person picket due to take place on 19 December 2012), the applicants submitted a formal notice to the authorities informing them of the planned action. Their proposals were either refused outright, or the authorities suggested alternatives which did not address the purpose of the event. Due to restrictions imposed upon them, many of the events did not go ahead.

The applicants complained that the restric-tions imposed on their proposed public events had breached their rights to freedom of expression (Art. 10) and peaceful assembly (Art. 11), in several cases, by discriminating against them on the grounds of their political opinions or sexual orientation under Art. 14

In respect of the Russian ban on holding public events in certain public buildings, the Court found that a general ban was disproportionate. This was due to the fact that the ban was “not specifically circumscribed to address a precise risk to public safety or a precise risk of disorder with the minimum impairment of the right of assembly” but was unlimited in time and applied across the country to all types of public events.

The Court therefore found violations of Art. 11 and 13 with respect to all applicants and violations of Art. 5(1) and 6(1) regarding the respective applicants who raised those complaints.

Comment

Lashmankin is the first case in which the ECtHR cites the principle establishing that freedom of assembly entails a right to protest “within sight and sound” of the target audience, reiterating statements by the UN Human Rights Commit-tee, the UN Special Rapporteur on Freedom of Peaceful Assembly and the OSCE/ODIHR Panel of Experts on the Freedom of Assembly: “The practice whereby the authorities allow an assembly to take place, but only at a location which is not within sight and sound of its target audience and where its impact will be muted, is incompatible with the requirements of Article 11 of the Convention.”

A notable feature of Lashmankin is that the Court adopted a ‘project-based approach’: it joined a range of applications involving common issues and decided them together. This is an

ECHR. Relying on Art. 13 in conjunction with Art. 11, the applicants complained that they had no effective remedy, because there was no legal procedure that would have allowed them to obtain an enforceable decision prior to the date of their planned events. Three applicants relied on Art. 5(1) to complain that they were unlawfully and arbitrarily arrested whilst protesting. Three other applicants relied on Art. 6(1) to complain about the quashing of a judgment in their favour by way of supervisory review, and another applicant argued that he had been convicted by a tribunal not estab-lished by law.

Judgment

The Court found that the authorities had placed severe limitations on the applicants’ plans for public events, in breach of Art. 11. The ECtHR held that although states must be allowed a wider margin of appreciation in determining restrictions on the location, time or manner of conduct of an assembly, such restrictions must offer sufficient procedural safeguards to the individual to prevent abuse of the right to assembly. That being the case, the ECtHR held that these safeguards were inadequate in Russia and the restrictions – along with a wide range of other measures – were dispro-portionate and unjustified. Furthermore, the legal provisions upon which they had been based did not protect against an arbitrary and discriminatory use of authorities’ power. There was no legal procedure available to effectively challenge the authorities’ decisions.

OTHER RECENT HUMAN RIGHTS CASES


emerging trend within the ECtHR’s practice and suggests that it is eager to set a template which will assist in deciding future cases where a particular human right is persistently violated by a state. Given that frequent infringements of the right to peaceful assembly in Russia have been documented since this judgment was delivered, it seems this template has been well timed.

Bayram Bayramov and others v Azerbaijan ECHR: Judgment Right to freedom of assembly

(No. 74609/10 et al.), 16.02.17

Facts

This group of cases originated as six different applications, joined by the Court due to their similarities. The six applicants were present at one of the peaceful demonstrations held on 31 July 2010, 2 April 2011 and 17 April 2011, demanding free and fair elections and demo-cratic reform in Azerbaijan, but were arrested when the police dispersed the protesters. Prior notice of the demonstrations had been given by the organisers to the Baku City Executive Authority (BCEA). However the BCEA refused to authorise the demonstrations as the locations chosen by the organisers were areas with heavy traffic, and instead BCEA suggested locations on the outskirts of the city. The organisers neverthe-less held the demonstrations in central Baku as initially planned.

The applicants were arrested for deliberately fail-ing to comply with lawful police orders. During the court proceedings the applicants were not allowed access to a lawyer of their choice, and all received ‘administrative’ detention ranging from seven to fifteen days.

Judgment

In respect of each applicant, the ECtHR unani-mously found a violation of Art. 11 ECHR, due to the disproportionate interference with the applicants’ freedom of assembly. The ECtHR also held that there had been a violation of Art. 6(1) and 6(3) ECHR, since the applicants were not granted pre-trial legal assistance and were not allowed to appoint their own trial lawyer, in breach of their right to a fair trial. The ECtHR also found a violation of Art. 5 with respect to four of the applicants, due to the disproportion-ate interference with their right to liberty.

Comment

The ECtHR in its judgment largely relied on its earlier judgment of Gafgaz Mammadov v

Azerbaijan (No. 60259/11) 15.10.15, since the issues raised in the case were essentially the same. The Court highlighted its serious concern about the foreseeability of the domestic legislation governing public assemblies. The judgment in this case came on the same day as five other cases against Azerbaijan with similar facts and complaints regarding the arrest and detention of peaceful demonstrators (Maham-mad Majidli; Bayramli; Abbasli; Jamil Hajiyev and Babak Hasanov v Azerbaijan, all decided on 16.02.2017). In all five of these cases the ECtHR found violations of Arts. 11, 6(1) and 6(3) ECHR, and of Art. 5 ECHR in all but Majidli. The judgment in Bayram Bayramov, and the other five cases cited, emphasise that the dispersal and arrest of peaceful demonstrators is a breach of the right to freedom of assembly.

Navalnyy v Russia ECHR: Judgment Unlawfulness arrest and pre-trial detention; freedom of assembly

(No. 29580/12 et al.), 02.02.17

Facts

On seven occasions between 5 March 2012 and 24 February 2014, Aleksey Navalnyy (the appli-cant), a political activist and an anti-corruption campaigner, was arrested during unauthorised public gatherings for variously disobeying lawful order of the police or breaching the established procedure for conducting public events. During his arrest on 9 May 2012, he was held in pre-trial detention for more than three hours, before being sentenced to 15 days’ administrative detention. During his second arrest on 24 February 2014, the applicant was kept in pre-trial detention overnight, before being sentenced to seven days’ administrative detention. On the five other occa-sions he was fined between 1,000 and 30,000 Russian roubles (€25-€740 at the time).

Mr. Navalnyy challenged the lawfulness and the arbitrariness of his arrest on seven occasions and his pre-trial detention on two occasions under Art. 5(1) ECHR. He complained under Art. 6(1), (2) and (3d) that on all seven occasions the proceedings failed to satisfy the guarantees of a fair trial. He also complained that his arrest and the following proceedings violated his right to freedom of assembly under Art. 11 ECHR and that he was targeted because of his political opinions, under Arts. 14 and 18.

Judgment

The ECtHR found a violation of Art. 5(1) ECHR regarding the applicant’s arrest on all seven occasions and pre-trial detention on two

occasions. The Court noted that no reasons had been given by the authorities for their failure to draw up the offence reports at the place of the alleged offence, as legally required. Moreover, Mr Navalnyy’s pre-trial detention was arbitrary since no reason had been given for not releasing him, nor had any risk of absconding or obstruct-ing justice been demonstrated.

The Court held that in the proceedings con-cerning the events of 5 March 2012, there was no violation of Art. 6(1) ECHR, since the appeal court had examined a private individual, confirming the police reports, and the video-recording provided by the applicant. However, on the other six occasions the Court found a violation of Art. 6(1) ECHR, because the domestic courts based their judgments exclusively on the reports of police officers, refusing the applicant’s request for additional evidence and presumed bias on the part of all witnesses testifying in applicant’s favour.

The ECtHR also held that there had been a viola-tion of Art. 11 ECHR. Though unauthorised, the applicant’s gatherings and conduct were peace-ful, consequently there was no “pressing social need” to interrupt the gatherings and arrest the applicant. The Court also noted that the meas-ures used to disrupt the applicant’s gatherings “had serious potential to deter other opposition supporters and the public at large from attend-ing demonstrations and, more generally, from participating in open political debate. Their chilling effect was further amplified by the fact that they targeted a well-known public figure, whose deprivation of liberty was bound to attract wide media coverage.”

Both Mr Navalnyy and the Russian Govern-ment requested that the case be referred to the Grand Chamber of the European Court for fresh examination; the request was granted on 29 May 2017. The Grand Chamber will hold an oral hearing in December 2017.

Comment

The ECtHR referred to its findings in other similar Russian cases involving violations of Art. 11, including Malofeyeva v Russia (No. 36673/04) 30.05.13, Kasparov and Others v Russia (No. 21613/07) 3.10.13, Naval-nyy and Yashin v Russia (No. 76204/11) 4.12.14, Novikova and others v Russia (No. 25501/07 et al.) 26.04.16, to describe the existence of a routine practice by police in Russia to stop and arrest protestors for the reason that their demonstration had not been authorised. Judges Lopez Guerra, Keller and Pastor Vilanova disagreed in their joint partly-dissenting opinion with the majority’s decision to not examine the applicant’s complaint under Art. 18 ECHR, taken together with Art. 5 ECHR. Judge Keller, in her partly-dissenting opinion, considered that €50,000, awarded by the majority to the applicant, was insufficient.


About EHRACEHRAC is an independent apolitical organisation that stands alongside victims of human rights abuse in order to secure justice. Working in support of civil society organisations, we bring strategic cases to the European Court and other interna-tional bodies to challenge impunity for human rights violations. We raise aware-ness of violations and means of redress for victims. Each judgment we secure contributes to an objective account of human rights abuse that cannot be refuted.

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ContributionsEHRAC would like to thank the following people for their contributions:

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This Bulletin was produced by EHRAC, designed by Tuttlebee Studio and trans-lated into Russian by Tatiana Hansbury.

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