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Tuesday, November 15, 2011

Parliament needs to address this before Xmas break

Parliament needs to address this before Xmas break

Joint debate in PACE

Wednesday 26 January 2011 at 3.p.m.

THE PRESIDENT – We now come to the joint debate on the implementation of judgments of the European Court of Human Rights, Document 12455, which is presented by Mr Pourgourides on behalf of the Committee on Legal Affairs and Human Rights; and on preventing harm to refugees and migrants in extradition and expulsion cases in respect of Rule 39 indications by the European Court of Human Rights, Document 12435, presented by Mr Darchiashvili on behalf of the Committee on Migration, Refugees and Population, with an opinion presented by Mr Cilevičs on behalf of the Committee on Legal Affairs and Human Rights, Document 12471.

The rapporteurs have 13 minutes in total to present their reports, which they may divide between presentation of the reports and replies to the debate.

I call Mr Pourgourides to present the first report.

Mr POURGOURIDES (Cyprus) – Paragraph 2 of the draft resolution of the Committee on Legal Affairs and Human Rights gives a clear indication of the basic thrust of what this afternoon’s discussions should be about. We know that the Committee of Ministers has the principal task of supervising Strasbourg Court judgments; that is clearly laid down in Article 46, paragraph 2, of the European Convention on Human Rights. But what if, despite the efforts made by our diplomatic colleagues, states are dilatory or simply not willing to comply speedily with Strasbourg Court judgments? Are we, the representatives of the legislative organs of the 47 countries, meant to sit back while the greatest achievement of the Council of Europe collapses under the weight of its own work or of the inability of the Committee of Ministers to force a number of states to comply rapidly and fully with Strasbourg Court judgments?

Of course, we cannot let that happen. I understand that there are more than 9 700 – yes, you heard me right, 9 700 – cases pending before the Committee of Ministers right now. Many of those cases concern grave human rights violations and a substantial number relate to major structural problems that have not been resolved for more than five, 10 or even 20 years.

The countries responsible for that unacceptable situation are Italy, with more than 2 500 unexecuted cases; Turkey, with more than 1 600 cases still pending before the Committee of Ministers; Russia, with nearly 1 000 unexecuted cases; Poland, with more than 760 such cases; Ukraine, with nearly 700 such cases; and Romania, with more than 630 such cases. All that gives one the impression that those countries are dragging their feet in not dealing speedily with the implementation of the Strasbourg Court’s judgments.

The Assembly and national parliaments are therefore duty-bound to play a more proactive role in this respect. I quote from paragraph 2 of the draft resolution: “if this is not done, the key role of the Convention, its supervisory mechanism and the Council of Europe as a whole, in guaranteeing the effective protection of human rights in Europe is likely to be put in jeopardy”. The current state of affairs, Mr President, is simply scandalous.

I was appointed rapporteur in March 2008, to take over the work of my eminent predecessor, Erik Jurgens of the Netherlands, who had, since 2002, produced several reports on this subject. The Committee on Legal Affairs and Human Rights authorised me to undertake fact-finding missions to eight countries – Bulgaria, Greece, Italy, Moldova, Romania, Russia, Turkey and Ukraine. I visited them all, and my last visit, to Turkey, took place only a couple of weeks ago.

The work has been difficult, very intensive and time consuming, but certainly rewarding, both for the people I met in those countries and for me, and I am now able to present the report to you today. In most countries, I was able to meet parliamentarians, prosecutors, judges, ministers and officials directly responsible for human rights files, and, on the margins of those meetings, civil society representatives as well as lawyers who had experience of litigating at the Strasbourg Court.

I assume that it is not necessary for me to go into great detail on the substance of the report, as most of you have had the opportunity to read the report published last year, as well as the short addendum issued a few days ago. It is enough for me to highlight the principal problems encountered in the execution of Strasbourg Court judgments with respect to nine states in particular, as indicated in the draft resolution. The main problems continue to be: excessive length of judicial proceedings, which is endemic, notably in Italy; chronic non-enforcement of domestic judicial decisions, which is widespread in Russia and Ukraine in particular; deaths and ill treatment by law enforcement officials and lack of effective investigations into them, which is particularly apparent in Russia and Moldova; and unlawful or overlong detention on remand, which is a problem notably in Moldova, Poland, Russia, Turkey and Ukraine.

Those problems are a matter of great concern and seriously undermine the rule of law in the states concerned. I find it simply unacceptable, for example, for states belonging to the democratic club that is the Council of Europe not to take immediate and strong measures following deaths or ill treatment suffered at the hands of law enforcement officials. The importance of putting an end to impunity cannot be overstated, and not only in the north Caucasus region, although the problem is most virulent there, as my colleague Dick Marty indicated in his report.

In the draft resolution, there is a series of recommendations to each of the states that I have mentioned, urging them to put their respective houses in order urgently – now – and not in five, seven or 10 years’ time.

Furthermore the Assembly is urged by the Committee on Legal Affairs and Human Rights, which adopted this report unanimously, to ensure that national parliaments that have not yet done so introduce specific mechanisms and procedures for effective and regular parliamentary oversight of the implementation of the Strasbourg Court’s judgment and for states to set up some form of decision-making body, at the highest political level, to take full and direct responsibility for the co-ordination of all aspects of the domestic implementation process.

Paragraph 213 of the report states: “We, the Assembly, as a statutory organ of the Council of Europe (and at the same time national parliamentarians), should not meekly accept the premise that the Committee of Ministers has ‘exclusive jurisdiction’ on this subject. When the Court judgments are not fully and rapidly executed, we – parliamentarians – also have a duty to help supervise the execution of the Court’s judgments. The credibility and viability of our European system of human rights cannot be left solely in the hands of the executive organ of the Council of Europe (in effect, diplomatic representatives of governments). Closely tied to this is the idea which I mooted back in August 2009, to the effect that the Assembly ought to consider – in the future – suspending the voting rights of national delegations when their parliaments do not seriously exercise parliamentary control over the executive in cases of non-implementation of judgments of the European Court of Human Rights”.

Thank you for listening to me.

THE PRESIDENT – Thank you, Mr Pourgourides, for your experience and for your very important presentation. You have three and a half minutes remaining.

I call Mr Darchiashvili, rapporteur, to present the second report.

Mr DARCHIASHVILI (Georgia) – I am very glad to have the opportunity to present and debate my report jointly with Mr Pourgourides’ report for two reasons: first, he belongs to the circle, which is known worldwide, of professional defenders of international law and democratic values – and let me tell you that it is not a very numerous circle as the task of combining such complex subjects is extremely difficult – and, secondly, both reports touch upon the issue of how such a combination is possible and what mechanisms are involved in the task. That relates to the authority of the European Court of Human Rights and the respect that European states pay to it.

Let me state the obvious: as has been proved many times by our joint endeavours – discussions and patterns of voting on different occasions, especially when they are about the behaviour of member states – we live in a world where state interests are no less a continuous determinant of our decisions than are human rights. An adherence to human rights principles, in combination with an inability to forget the so-called Realpolitik, frequently acquires the shape of the dilemmas that we all encounter. But we are not helpless when faced with such difficult choices, and my report, as well as that of Mr Pourgourides, points out particular mechanisms that our Organisation has to hand for combining some concrete aspects of national interests with those of basic individual aspirations.

Today, the Parliamentary Assembly of the Council of Europe once again contributes to the awareness and strengthening of particular modalities of the relationship between member states and the European Court of Human Rights and thus to the mechanism of balancing national interests and universal human rights. The European Convention on Human Rights and the Court’s rules, if properly used and respected, can provide us with explicit remedies to stop possible harm to individuals that may be imposed on them under the banner of national security, while also taking into consideration the legitimate concerns of the state. That is particularly reflected in the title and content of my report.

The Court, which is composed of the appointees of member states and our entire Organisation, its rulings, which determine the interaction between the Court and governmental authorities, and the Convention, which is a basis for the Court’s rulings, are co-ordinates that guide us on the path of our European civilisation, which is about jointly respecting collective national and human security.

Mr Pourgourides has reaffirmed how crucial it is for the Court’s authority and for the entire system of European rule of law that the Court’s judgments are implemented fully and speedily. My report is concerned with the fact that, ahead of delivering its judgment, the Court also has another tool to ensure the effectiveness of such rights in a particular application. That is mysteriously called Rule 39. Indeed, according to its rules, the European Court of Human Rights has the power to order an “interim measure” – a temporary instruction to a state party that is usually aimed at preventing harm in a fast-changing or urgent situation – until the Court can properly consider a complaint and issue a full ruling.

Respecting such indications by the Court is indispensable and, as the report says, legally binding in preventing irreparable damage to the applicants. Rule 39 can be invoked in various circumstances and for diverse applicants. But our report is mainly focused on the importance of such rulings for refugees, migrants and asylum seekers. The protection of human rights in the context of migration is especially topical since its particular aspects, forms and geography became a part of the European security realm – fertile ground for the clash between national interests and human rights.

The reason Court Rule 39 can request state authorities to stop the expulsion or extradition of applicants until further notice is twofold. For different reasons, applicants appear to be deprived of opportunities clearly to present their cases to the authorities of receiving countries. For example, those involved might be in detention and lack access to legal assistance and legal aid, or not knowing the language used in their legal proceedings might be a problem.

Another problem can arise when the Court issues proceedings under Rule 39. Such applicants might face irreparable damage if they return to their countries of origin. Very recently, as the Court’s ruling in the case of MSS v. Belgium and Greece shows, even a third-country national expelled from one EU country to another, based on Dublin II regulations, might end up in democratic European countries that violate the Convention. But what is possibly more alarming is that there are a number of cases in which Council of Europe member states have ignored the interim measures that the Court has declared under Rule 39 to deport or expel applicants, thus clearly violating Article 34 of the Convention, which relates to the right to make individual petitions, and contributing to the possibility that those applicants might face threats to their dignity, health and even lives, as defined in Articles 3 and 2 of the Convention.

The draft resolution and recommendation, which are based on the report, reiterate the importance of Rule 39 in protecting the rights of many individuals in Europe. They develop ways in which national authorities and the structures of the Council of Europe can and should increase their efficiency and intensify their co-operation in respect of the Convention, especially in their application of Rule 39. Those measures range from stressing the binding nature of that ruling on member states to developing mechanisms to raise awareness about the matter, and to increasing the institutional capacity of state authorities when dealing with applicants, as well as with the Court itself.

Last but not least, the draft resolution says that there could be objective impediments preventing states from complying with the Court’s rulings. That could be read as a tribute to state interests. As you know, dear colleagues, the European Convention on Human Rights also envisages the situations and reasons why certain rights of the individual might be curtailed. However – and this reflects the balance between the state and individual rights – state authorities should not abuse the notion of “objective impediments”. They should therefore provide clear evidence that all reasonable steps have been taken to remove such impediments and to keep the Court informed in a full and timely manner.

Dear colleagues, let me remind you that the ultimate aim of this procedure, known as the interim measures under Rule 39, is to prevent vulnerable individuals from coming to harm. The report, its conclusions and its recommendations rest squarely within the mandate and core values of our Assembly.

THE PRESIDENT – Thank you. I call Mr de Vries to present the opinion of the Committee on Legal Affairs and Human Rights on the report.

Mr DE VRIES (Netherlands) – I have the pleasure of presenting this opinion on behalf of the rapporteur, Mr Boris Cilevičs who unfortunately had to leave Strasbourg today because of commitments in his own parliament.

The Committee on Legal Affairs and Human Rights congratulates Mr Darchiashvili on his excellent report, and stresses the importance of the application of the indications given by the European Court of Human Rights, on the basis of Rule 39 of its rules, in cases concerning the expulsion or extradition of aliens. Respect for Rule 39 indications is at the very core of the Convention system. It is indispensable in preventing irreparable damage to applicants in cases in which expulsion or extradition could put them at risk of serious violation of their human rights, such as the rights guaranteed under Articles 2 and 3 of the European Convention on Human Rights.

The Assembly has already partially addressed the issue – in particular in its Resolution 1571, from 2007, and in Recommendation 1809, also from 2007 – of Council of Europe member states’ duty to co-operate with the European Court of Human Rights.

The Committee on Legal Affairs and Human Rights has proposed a number of amendments to the draft resolution and recommendation with a view to strengthening them by putting emphasis on the language of these texts. Most of these amendments are aimed at introducing a more succinct, clear and precise legal terminology, specifically in order to align the draft resolution and recommendation with the wording of the European Convention on Human Rights, the rules of the European Court of Human Rights and its case law, and the terminology of the Committee of Ministers. As this important issue requires a precise legal terminology, I should emphasise that the amendments proposed by the Committee on Legal Affairs and Human Rights aim to enhance the text of the proposed resolution and recommendation. The committee is very much in favour of the conclusions of the report produced by Mr Darchiashvili.

THE PRESIDENT – Thank you. The debate is open. I call first Mrs Bemelmans-Videc, who will speak on behalf of the Group of the European People’s Party.

Mrs BEMELMANS-VIDEC (Netherlands) – The Interlaken Declaration rightly emphasises the subsidiary nature of the supervisory mechanism established by the European Convention on Human Rights, emphasising the fundamental role that national authorities, governments, courts and parliaments play in guaranteeing and protecting human rights at the national level. The credibility of the control mechanism depends on the correct application of the Convention, part of which concerns implementation of the Court’s judgments.

The report before us, on which I warmly congratulate Mr Pourgourides, is part of an important tradition of this Assembly. Reports have shown time and again that a large majority of the cases considered by the Court were brought against a small number of countries, while the backlog in the Court’s work has mainly been caused by structural issues in those countries that have repeatedly been identified and where a well-established case law exists. As Mr Pourgourides has often stated in his speeches as Chairman of the Committee on Legal Affairs and Human Rights, violations of human rights need to be avoided. That is what the principle of subsidiarity means.

That brings me to the role of national parliaments. Some parliaments, such as those in the United Kingdom and in Germany, have effective procedures in place to ensure that they are informed by their governments about implementation of the Court’s judgments – judgments that concern not only their own countries but other states and have repercussions for their national legislation. We parliamentarians therefore have a crucial role to play in cases of non-compliance by national governments, but also where Rule 39 indications by the Court are concerned.

Mr Darchiashvili’s report offers a complete and instructive insight into the background and the practice of Rule 39 indications, rightly concentrating on the need to prevent harm to refugees, asylum seekers and irregular migrants who face the threat of being sent back to their countries of origin.

This is a very timely report given the problems in the execution of the Dublin regulations. It is timely also because it is only to be expected that there will be even greater use of interim measures in future. These problems need to be urgently addressed first by the relevant political bodies, and therefore also by us as parliamentarians.

The Group of the European People’s Party therefore also welcomes the recommendation that the Court, the Committee of Ministers and other Council of Europe bodies work together to respond to the changing practices of Rule 39 measures and to avoid any cases of non-compliance in future.

Both reports present an important political agenda – an agenda for urgent action.

THE PRESIDENT – Thank you. I call Mrs Strik, who will speak on behalf of the Socialist Group.

Mrs STRIK (Netherlands) – Today we are discussing two reports on the work that lies at the heart of the Socialist Group – the European Court of Human Rights. On behalf of the Socialist Group, I congratulate the two rapporteurs on their impressive reports. Both reports deal with the response of member states to the Court’s decisions – or, more accurately, their lack of response.

The rapporteurs have expressed their justified concerns about non-compliance with the judgments. Member states have sometimes even neglected the interim measures that are meant to prevent irreversible harm. If a person claims that he will face death or maltreatment after expulsion, the Court has first to assess the claim before the deportation can be executed. There can be no doubts about that. It is not a matter of national sovereignty but of a right to an effective remedy. Of course it is up to the Court subsequently to deal with the substance of the case as soon as possible in order to avoid unnecessary delay.

Although we need to send a strong signal that non-compliance is unacceptable, that is not enough. The rapporteurs have rightly suggested taking further steps to promote full compliance. I have three suggestions. First, judgments sometimes imply the need for structural changes in the law or practice in the member state. Mr Pourgourides put his finger on specific problems, such as the length of proceedings, non-enforcement of national judgments and ill treatment by police officers and their impunity. Our Assembly and the Committee of Ministers should therefore continue to promote the need for structural reform.

Secondly, we should consider sanctions for member states who systematically and deliberately neglect decisions of the Court. We should not exclude the possibility of fines, or even suspension of their membership of the Council of Europe. As non-compliance does not only concern governments, national parliaments too should take responsibility. If not, sanctions on national delegations could be considered.

Finally, I stress the responsibility of all politicians to foster the authority of our Court. In my country, the Netherlands, I notice increasing dissatisfaction among politicians with the judgments of the Court. They even publicly doubt the justness of those judgments. I consider that a dangerous development, because it undermines the effectiveness of our Court. The Court’s authority determines whether the rule of law prevails in our 47 countries. We can demand respect for the judgments of the Court with credibility and legitimacy only if we do not question its decisions. In the case of the Dublin II regulation, the Court simply holds a mirror to the face of the EU. We should never blame the messenger. We should respect the messenger and find solutions that are in accordance with the rule of law.

THE PRESIDENT – Thank you Mrs Strik. The next speaker is Ms Perry, who will speak on behalf of the European Democrat Group.

Ms PERRY (United Kingdom) – In this important debate, I want to address a specific item covered in the first report considered today, the judgment by the Court that the UK Government, along with other governments, has violated Article 3 of Protocol No. 1 by barring convicted prisoners from voting.

As a member of the cross-party Select Committee on Justice in my parliament, and as a member of parliament with a prison in my constituency, Devizes, I take a keen interest in the matter. Although I believe there is much to welcome in the report presented today, in the case of this specific judgment I believe that the Court’s judgment is wrong. It ignores the great differences between member countries in terms of definitions of crime, sentencing and prison regime. It ignores the fact that those are matters for sovereign parliaments. Crime, sentencing and punishment, including the selective removal of voting rights, are constitutional matters for sovereign parliaments and for courts to decide in our member countries. In my view, the European Court is really riding its luck by unilaterally extending its remit to areas where consent for that has never been granted by our member parliaments.

It is that sort of judgment that creatively – some would say mischievously – extends the reach of the original protocols, while ignoring sovereign law. It is that behaviour that does so much to spoil the appetite in my country, and in other countries, for more European unity and co-operation. It is also the case that by awarding compensation of tens of thousands of euros to convicted murderers, the Court runs the risk of looking unhinged in the international media.

I finish with a quote from Winston Churchill, who in many ways was the founding father of this Assembly. He believed passionately in European co-operation, but from a starting point of sovereign independence. He said: “Courage is what it takes to stand up and speak, but courage is also what it takes to sit down and listen.” I therefore urge the Court, this Assembly and our national governments to sit down and listen and reconsider the specific implantation plans for this judgment, as they are unworkable, unconstitutional and an unacceptable intrusion in the sovereign independence of our member states.

THE PRESIDENT – Thank you Ms Perry. The next speaker is Mrs Taktakishvili, who will speak on behalf of the Alliance of Liberals and Democrats for Europe.

Mrs TAKTAKISHVILI (Georgia) congratulated Mr Pourgourides and Mr Darchiashvili on their work. She highlighted the functioning of the European Court of Human Rights and the problem of the failure to implement certain of its judgments. She mentioned the particular difficulties of bringing into force Protocol No. 14: it had been the hard work of the Committee on Legal Affairs and Human Rights that had resulted in its implementation at all. Despite its best efforts, the Protocol was still not in force in nine member states. It would remain a difficult and onerous task to bring it into force in all member states.

In his address in April the previous year, the Foreign Minister of the Russian Federation had also spoken about the problems associated with non-implementation of judgments, particularly in relation to Chechnya. She did not think that these problems would be quickly or soon resolved.

Rule 39 posed further problems: too many member states were reluctant to conform with the Courts’ judgment on the subject and even interim measures seemed often fragrantly to violate the Court’s intentions.

Mr Darchiashvili had spoken about the need for greater consistency in the use of legal and political tools: she agreed. It would be impossible to guarantee human rights if the judgments of the Court were not fully implemented in all member states. She expressed her full support for the two reports

THE PRESIDENT – Thank you, Mrs Taktakishvili. The next speaker is Mrs Frahm, who will speak on behalf of the Group of the Unified European Left.

Mrs FRAHM (Denmark) – I thank both rapporteurs for two important and thorough reports.

Tomorrow, there will be a commemorative ceremony outside this building to show that we will never forget the Holocaust. The Council of Europe was founded to ensure that it would never happen again. To prevent governments from abusing their power over their citizens, the Council of Europe’s first and most important task was creating the European Convention on Human Rights and the Court here in Strasbourg. All our governments freely signed the Convention and other conventions, and they have contributed to the development of institutions, structures and processes in the Council of Europe.

When governments ignore or criticise decisions or Court rules, they demonstrate their inability to follow up their own decisions. Some say that the Court is political but, strangely, only when the ruling goes against their wishes. How do they think it could be possible to have an international convention connected to a court without giving up some national sovereignty? Why do people in our countries have to wait for their rights until the Court has ruled against their government? For example, the Danish Government closed its eyes to the misery of asylum seekers entering via Greece. Those people perished in a legal no man’s land that ruined many of them. Their only crime was trust in our system. The Danish Government hoped to return them to Greece, not caring in the least about the misery or the danger they could face. Not until the days after the Court ruling in the case against Belgium was it decided to start the asylum procedure.

In 2009, the Court had 2 400 cases from asylum seekers relating to Rule 39 of the Rules of the Court. If our governments had lived up to their commitments, these cases would never have been started. These cases and the two reports we are dealing with today show us a nasty picture of politicians abusing their power against people in great misery and need, and of governments ignoring their commitments and our rights. With these reports, parliamentarians from all over Europe send a clear signal to our own governments that we will not accept the double standard hypocrisy they are practising.

THE PRESIDENT – Thank you. I call Mr Salles.

Mr SALLES (France) paid tribute to the remarkable report by Mr Pourgourides, particularly the work he had done to show how member states could improve their implementation of the judgments of the European Court of Human Rights. He was pleased to note that France was no longer on the list of the most egregious non-compliers. The effective defence of human rights required common acceptance of judgments and complementary laws in and by member states. Failure to implement judgments of the Court paralysed any system based on the mutual recognition of rights. He asked whether Protocol No. 14 should be used more frequently: while that Protocol required caution, he did not consider it a “dead letter”. He also suggested that the Assembly adopt a more activist role in enforcing implementation by member states.

The recent judgment of the ECHR in the case of MSS v. Belgium and Greece highlighted the ambiguities of the current system. By finding against Belgium, the Court had effectively broken the Dublin Convention and deprived community law of any effectiveness. He was interested to note that the Court had ruled that Article 3 had been violated, and therefore the value of community law had been partially maintained, but he was concerned that such rulings be wholly exceptional. He concluded that a legitimate defence of human rights had to rely on a balance of power between all actors: the Court, national governments, the European Union and other supranational bodies

THE PRESIDENT – Thank you. I call Mr Díaz Tejera.

Mr DÍAZ TEJERA (Spain) said that it was a rare session of the Parliamentary Assembly that passed without some discussion of the Court. He had never met anyone who was satisfied with the performance of the Court and that included the judges and lawyers who worked there.

Every time the Assembly discussed the Court, the debate turned to the backlog. He stressed that when members talked of a backlog of 100 000 cases they were wrong: the real figure was 126 000 cases pending. At this rate, 6 000 cases must be processed every year just to keep up. He asked why there was such a problem with the backlog. In his opinion the problem arose because, whereas national courts had oversight of the implementation of their own judgments, the ECHR relied on national parliaments and governments to act on its behalf.

The Assembly had the previous day asked why it had taken 11 years for politicians to act on some horrendous breaches of human rights; the same could be asked of the Court. For the first time in a long time, he had heard the excuse of sovereignty put forward as a reason not to enforce ECHR judgments. The problem was therefore simple: nothing happened if a member state failed to implement a judgment of the Court. So the solution was also simple: there should automatically be further action if a member state failed to implement. The legitimacy of the institution relied on the effective and universal implementation of its judgments. The Council of Europe, he reminded members, existed in part to ensure the enforcement of Court decisions. He again congratulated Mr Pourgourides and confirmed his support for the report.

THE PRESIDENT – Thank you. I call Ms Pourbaix-Lundin.

Ms POURBAIX-LUNDIN (Sweden) – We all joined this Organisation because we believe in the rule of law, democracy and human rights. The Council of Europe institution that is best known to the public is the European Court of Human Rights. The fact that a citizen in any of our member states can hand in a complaint to the Court is an outstanding sign of democracy that most people in the world can only dream of. In order for the Court to maintain its high public status, member states must implement its judgments.

A chain is never stronger than its weakest link. As is stated in the report, several member states have failed to implement the Court’s decisions, and this undermines the authority of the Court. I am particularly concerned by the situation in Russia. The Russians have started compensating successful applicants to the Court, but that is not enough. They must take general measures to ensure that there will not be similar violations in future.

Some states feel that the Court is against them and that it makes political decisions, but that is not true. Over the past decades, my own country, Sweden, has been convicted 25 times. It is certainly not a pleasant experience to have a judgment against you, either as an individual or as a state. Nevertheless, we must accept it. This is what we have agreed to; we have joined this Organisation and we must live up to it. What matters is the human dimension. The right of an individual to complain against a state is something that we should be proud of and work together for.

The Committee of Ministers has a responsibility to put pressure on the government in question to execute the Court’s judgment. We, as parliamentarians, have the ability and the duty to do so, too. If a member state has had many citizens who complained to the Court about almost the same matter, that is a signal to its government that something is really wrong in the country. It lies in the hands of member states to ensure that the Court does not end up with a heart attack – a complete breakdown. If every state does its homework in living up to the principles of human rights, democracy and the rule of law, I am sure that complaints to the Court will go down immensely.

I thank both rapporteurs and fully support both reports.

(Mr Mignon, Vice-President of the Assembly, took the Chair in place of Mr Zingeris).

THE PRESIDENT (Translation) – Thank you. I call Mrs Zohrabyan.

Mrs ZOHRABYAN (Armenia) said that she fully understood the motivation behind the report and noted that its observations on Rule 39 and the rights of migrants, refugees and asylum seekers, was particularly important. It was crucial that these individuals had the right to appeal to the Court to prevent their removal to countries where their life may be in danger. She agreed with the Commissioner for Human Rights when he described Rule 39 as the last way to save lives.

Some 21 years ago, a massacre of resident Armenians in the Azeri capital of Baku had been committed by armed bands co-ordinated by the government. This ethnic cleansing had seen hundreds and thousands of Armenians flee their homes. The date was known in Armenia as “Black January”. So far, the European Court of Human Rights had not provided a judgment on this matter: what was needed was a Nuremberg trial for the Baku massacre.

She described the proposals for Nagorno-Karabakh as hypocritical: the Azeris were keen that Armenians live in Nagorno-Karabakh simply so that the Azeris could hunt them down. The Armenians longed to return to their homes, but could not do so due to the policies of the Azerbaijan state. She hoped that members present would agree with her that the right to peace and security of peoples was inalienable.

THE PRESIDENT (Translation) – Thank you. I call Mr Vyatkin.

Mr VYATKIN (Russian Federation) thanked Mr Pourgourides for his continued interest in the issue and his long concern for the problems identified in the report. He noted that the report identified some of the systemic problems in national legal systems that themselves caused frequent appeals to the Court. It was a very good analysis of some of the systemic problems that existed in some member state legal systems.

Three of the previous speakers had referred to failings in the legal system in the Russian Federation so he wished to set the record straight. Several reforms had recently been made to the Russian legal code, including the separation of the appeals court. A federal law had been passed to grant financial compensation to those found not to have had a fair trial. In addition, the Ministry for Internal Affairs was changing many of its policies. As a result of these measures, he was confident that the number of cases before the Court that originated in Russia would reduce, as would the criticism levelled against the Russian system.

THE PRESIDENT (Translation) – Thank you. I call Mr Panţiru.

Mr PANŢIRU (Romania) – Against a background of grave problems connected with the non-execution of judgments of the European Court of Human Rights, the report is an objective necessity and very timely. I congratulate the rapporteur on this outstanding piece of work. We are also grateful to Mr Pourgourides for his working visit to our country and for his professionalism and spirit of co-operation.

The implementation of the judgments of the European Court is crucial for the preservation of the integrity of the system established by the European Convention on Human Rights. As the Court itself noted in its judgment concerning non-execution of judicial decisions, the implementation of judgments is a cornerstone of justice both at national and European level. While the direct responsibility for the execution of European Court of Human Rights judgments belongs to the governments – individually, and in the form of the Committee of Ministers of the Council of Europe – we, the parliamentarians of this Assembly and of our national parliaments, are obliged to step up parliamentary supervision of the implementation of European Court of Human Rights judgments as well domestic judgments.

In Romania, which, unfortunately, is among the nine states with major problems regarding implementation of the Court’s judgments, we understood that a proactive parliamentary control over the Executive was an absolute necessity. Accordingly, a special parliamentary legal committee for the supervision of the government on the execution of judgments was established. We expect that that measure will contribute to speeding up the finalisation of the execution of those European Court of Human Rights judgments still not executed by Romania and in particular to the elimination of existing systemic problems, a process that has already started.

As a result of the pilot judgment of the ECHR in Atanasiu and others v. Romania, the Government of Romania established a working group to prepare solutions for eliminating systemic problems indicated in the pilot judgment. In that context, I fully support the appeal of the rapporteur addressed to all national parliaments to look into the proper ways of constructive proactive participation in the supervision of the implementation of the judgments.

The report shows that, in many countries, systemic problems occur in relation to the observance of the most basic rights, which is deplorable. Following that, I add my voice to those urging member states, in particular those mentioned in the fifth paragraph of our draft resolution, to take seriously the warnings of the Committee of Ministers regarding the implementation of the Court’s decisions.

It appears that the time has come for us to consider seriously the possibility of modifying the European Convention on Human Rights to enable the Court to sanction member states that violate Article 46 of the Convention by refusing to execute the Court’s judgments. By putting pressure on our own governments in our national parliaments, perhaps we will achieve that.

THE PRESIDENT – Thank you. I call Mrs Marin.

Mrs MARIN (France) thanked the rapporteur, Mr Pourgourides, and said that the non-enforcement of judgments led to the perverse consequence of repeat applications to the Court. Like Mr Salles, she was glad that France was no longer listed as one of the chief transgressors. The European Convention on Human Rights gave protection to fundamental rights and freedoms but, in protecting these, the European Court of Human Rights needed to be wary of creating case law that was too bold. She cited a case that had hinged on the question of whether a public recorder should be present at deliberations as an example of the Court being overly innovative in its judgment. Widespread adoption of Protocol No. 14 to the European Convention on Human Rights was to be welcomed but it was a matter of regret that the Court no longer adjudicated on small cases.

There was a role for national parliaments in scrutinising the enforcement of judgments. She drew attention to recent debates in the French National Assembly on the subject of police custody and reiterated that the Court should not overstep its role.

THE PRESIDENT – Thank you. I call Mrs Keleş.

Mrs KELEŞ (Turkey) – The Committee of Ministers is responsible for supervising the execution of the judgments of the European Court of Human Rights. I think that continuing to have the Committee of Ministers responsible is better, so that work is not duplicated and more objective evaluations are reached.

This report is not objective; it is biased and does not give an overall picture. There is a great difference in how problems are handled, depending on the feelings of the rapporteur in respect of the country in question. If it is Greece, the problems are not important enough to mention. For example, Articles 2 and 3 of the European Convention on Human Rights and the judgments of the European Court of Human Rights about ethnic discrimination are discussed very superficially and only in the explanatory memorandum. Furthermore, there is no reference to the Sampanis judgment about not accepting Roma children in ordinary schools.

When it comes to Turkey, however, the problems are exaggerated. Positive developments are ignored, the facts are distorted and even the terms used by the Court are changed. For example, when the rapporteur refers to the judgment in the Cyprus v. Turkey case, he ignores the fact that the fifth paragraph of the European Court of Human Rights’ judgment mentions “military operations in Northern Cyprus”; the rapporteur prefers to use the term “invasion”.

In the resolutions and recommendations, there is no direct reference to the Greek cases, but in the explanatory memorandum, Greek arguments are written in detail. All positive developments since 1990 concerning the conditions that led to negative judgments about Turkey are ignored. Neither the changes in the constitution and the laws nor the implementation of the judgments are referred to positively. That is because, contrary to his oral declaration, Mr Pourgourides has a conflict of interest in respect of both the subject of the report and the two countries covered by the report.

The problem of Cyprus is the result of the Akritas plan, which was put into practice in December 1963 to realise the enosis of the Greek people. After the massacre of 21 December 1963, there was a 10-year period in which many civil Turkish Cypriots were driven out of their villages and killed by Greek Cypriots and soldiers. Turkish soldiers went to the island in 1974, in accordance with the Zurich and London guarantee agreements, to prevent the further massacre of the Turkish community.

Greek Cypriots do not co-operate with the autonomous missing people committee and they ask only for the investigation of the cases of missing Greek Cypriots. However, the number of missing Turkish Cypriots is above 500. In addition, mainly in Yilmazköy, Muratağa, Sandallar and Atlilar, there were the dead bodies of many Turkish Cypriots.

Even some members of the European Union admit that letting the Greek Cypriot administration of southern Cyprus become a member of the EU before any solution of the Cyprus problem was a mistake, yet Chancellor Merkel, forgetting that Turkish Cypriots voted in favour of the Annan Plan, accuses them now of not wanting a solution for the island. The Cyprus problem is a problem between two communities and it can be resolved only if European Union countries stop backing one side and treat both equally.

THE PRESIDENT called Mrs Keleş to order noting that, as well as exceeding her allotted three-minute limit, she had cast unjustified aspersions on the motivation of Mr Pourgourides. He could see no conflict of interest. He called Mrs Grosskost.

Mrs GROSSKOST (France) said that she wanted to discuss implementation of the judgments of the Court. A lack of implementation did not relieve pressure on the Court, which was in any event subject to structural problems. She, too, was glad that France was no longer a bad offender in this regard but noted that, in the past, a lack of resources had prevented her country from meeting all its obligations in respect of implementing the Court’s decisions.

It was essential for the Council of Europe and the Court to secure the support of national parliamentarians, who would be best placed to put pressure on national governments to take action where it was needed. In addition to their role in parliamentary diplomacy, members of the Assembly had a duty to protect the fundamental rights and freedoms established by the Convention. The current debate in France on police custody had led to the subject being referred to the constitutional court, but France was committed to honouring its obligations in respect of the rule of law and maintaining a leading European standard in that regard.

THE PRESIDENT thanked Mrs Grosskost and called Mr Badré.

Mr BADRÉ (France) said that 2010 had been a very important year for the European Court of Human Rights with the Interlaken conference having taken place in February. He congratulated Mr Pourgourides on his report and said that the Court in Strasbourg was at a crossroads with 140 000 cases still pending. Very important decisions were awaited and the establishment of Protocol No. 14 took Europe closer to the establishment of widespread legal order. He noted that this would not necessarily lighten the load for the Court, which was already struggling with repetitive applications. In addition to the responsibilities and obligations laid upon members of the Assembly, he stressed that they had a duty in their own parliaments to promote the effective work of the Court.

THE PRESIDENT thanked Mr Badré and called Mr Slutsky, as Mr Savvidi was not present.

Mr SLUTSKY (Russian Federation) said that Mr Pourgourides ought to be congratulated on having the courage to call a spade a spade and that he fully supported the report. The timely implementation of the judgments of the Court was a duty under the Convention and the Assembly should not forget it. Paragraph 3 of the draft resolution pointed to major structural problems concerning cases in which delays in implementation had arisen and further analysis had been required. The report was objective in general but was not, in his view, correct in every aspect. He suggested that compensation could be paid to people in cases where the judgment was not received in good time. He concluded by drawing attention to paragraph 125 of the report in which the Russian Federation had been criticised for not having a suitable definition of torture when, in fact, the Russian definition of torture was fully in line with that used in Council of Europe documents.

THE PRESIDENT – Thank you. I call Mrs Türköne.

Mrs TÜRKÖNE (Turkey) – I welcome this opportunity to debate the implementation of Court judgments. The European Court of Human Rights, where more than 800 million European citizens are entitled to lodge their complaints, is a success in itself. This success, however, produces high expectations and complex challenges. Our collective responsibility is to do everything we can to ensure that the Convention system functions effectively. I truly hope that this report will serve that cause.

The success of the European Convention on Human Rights system is linked to the binding nature of the Court’s judgments and to the role of the Committee of Ministers in supervising the full execution of judgments by state parties. Implementation, which is carried out under the supervision of the Committee of Ministers, can also benefit from co-operation between domestic and other institutions, including the Assembly and national parliaments, acting within their remits. Bearing that in mind, for the sake of the system’s good functioning, one should avoid any approach that might lead to a conflict of mandates among the organs of the Council of Europe.

Moreover, I wholly support the rapporteur’s view that there is a strong need to establish national mechanisms to monitor implementation of the Court’s decisions. On the other hand, although I have no reservations or objections to the report’s draft resolution and draft recommendation, I have several reservations about Mr Pourgourides’ appointment as rapporteur for this report. First and foremost, in our view, his appointment is contrary to the spirit of the rule on transparency and the declaration of members’ interests. Considering his political engagement in matters relating to Greek Cypriot cases, we strongly believe that it was impossible for him to be fully impartial and independent in handling this report.

Regrettably, this report has justified our concerns. I do not want to go into the details, but a quick look at the part of the explanatory memorandum on Greek Cypriot cases against Turkey will reveal that his standing as the rapporteur has been severely compromised. For example, in the parts of the report on Greece, the rapporteur has neglected to mention the Court’s judgments in cases concerning the refusal to register associations established by the Turkish minority of Western Thrace. He seems to think that these cases are not worth mentioning. These cases – in which the Court found repeated violations of the right to freedom of association – reveal a serious structural problem concerning the rights and freedoms of all Turkish minority associations in Greece.

Many more examples in the report run against the objectivity required for a balanced presentation of the facts, but I will not cite them now. I hope and believe that PACE committees will in future pay more attention in appointing rapporteurs so that such situations can be avoided.

THE PRESIDENT (Translation) – Mrs Türköne, I have to call you to order, as I did earlier in the case of Mrs Keleş, and point out that it is not acceptable to take up what the rapporteur has said in this way. We have to go with what the rapporteurs have stated.

Mrs TÜRKÖNE (Turkey) – I am entitled to speak; I have three minutes.

THE PRESIDENT (Translation) – Yes, but I am also entitled to remind you.

Mrs TÜRKÖNE (Turkey) – This is a democratic Assembly, and I believe that if I have any thoughts, I should have the right to express them without any kind of intervention.

THE PRESIDENT (Translation) – No one is challenging the fact that everyone can speak freely. I am simply saying that we need to show respect to the rapporteurs and avoid any personal comments. This has been the case twice this afternoon.

The next speaker is Mr Corlăţean.

Mr CORLĂŢEAN (Romania) shared the conclusions of the rapporteurs. There should be an enhanced role for the Assembly. The Court’s judgments had to be enforced and he proposed an increase in follow-up work by the Assembly: such scrutiny was currently weak and needed to be strengthened. The Court needed sanctions at its disposal in cases of non-compliance. The task could not safely be entrusted to the Committee of Ministers because it might conflict with its political agenda. He agreed that the European Court of Human Rights’ remit should be extended on the basis of Protocol No. 14.

The current situation regarding implementation of judgments was not entirely bad: there had been a number of improvements in the implementation of judgments in member states. There had been some very positive instances: the restitution of property in eastern Europe was an example. Both Poland and Romania had legislated as a result of recent judgments; and his own parliament was committed to so acting in the future.

The PRESIDENT thanked Mr Corlăţean and called Mrs Wohlwend.

Mrs WOHLWEND (Liechtenstein) said that the report went to the heart of the role of the Council of Europe and deserved a full response. The Court currently had to deal with a large and potentially overwhelming number of pending cases. Countries had also been particularly slow in implementing its judgments. A handful of countries generated the most applications to the Court. Four countries – Russia, Turkey, Ukraine and Romania – accounted for 60% of the cases pending before the Court. Certain practices in such countries were undoubtedly a violation of the European Convention on Human Rights and the Court should not even be necessary to change the law. Where victims in these countries felt they could not otherwise secure redress, they had turned to the Convention and Court for help. Member states could avoid applications not only if they sooner implemented the judgments of the Court but if they took pre-emptive action to respect human rights. She urged the Assembly to sustain its pressure for political reform in those states.

THE PRESIDENT (Translation) – Thank you, Mrs Wohlwend. I call Mrs Postanjyan.

Mrs POSTANJYAN (Armenia) – My speech today is devoted to the flagrant disregard by the authorities of Armenia, Georgia, Azerbaijan and Turkey of the decisions of the European Court of Human Rights on freedom of speech.

In Turkey, on the basis of the notorious Article 301 of the Turkish criminal code, which is in force to this day, court proceedings were launched – allegedly for insults against Turkish national identity – against the well-known Istanbul-Armenian journalist, Hrant Dink. However, he was murdered in 2007.

“The Turkish authorities did not fulfil their duty to protect Hrant Dink’s life and his freedom of speech.” Such was the conclusion of the European Court of Human Rights on the matter. In fact, the journalist was penalised by state agencies for criticising the failure of the Turkish authorities to acknowledge the events of 1915 as genocide. Article 10 of the European Convention on Human Rights prohibits limitations on freedom of expression, in terms of political dialogue and issues of public concern.

In Azerbaijan, on the basis of several articles of the Azerbaijani criminal code, Eynulla Fatullayev, was sentenced to imprisonment, and he remains in jail to this day, even though the European Court of Human Rights ruled unanimously, on 22 April 2010, that his indictment infringed Article 10 of the European Convention on Human Rights. Fatullayev had strongly criticised the Azerbaijani authorities and formulated his own views on the so-called 1992 Khojaly events, refuting the disinformation and propaganda that the Azerbaijani authorities had disseminated for years.

A Georgian court sentenced Vahagn Chakhalyan to 10 years’ imprisonment, and the case has already been submitted to the European Court of Human Rights. Behind the veil of criminal proceedings, we are yet again witnessing an encroachment on freedom of expression. But the real reason behind the imprisonment of Chakhalyan, a well-known Armenian political personality from Georgia’s predominantly Armenian-populated region of Javakhk, is to forbid any voice speaking against the numerous and serious problems confronting the native Armenian population of Javakhk. In Armenia, despite a decision by the European Court for Human Rights, the A1+ television company is still not on the air. What is more, just a few days ago, the ALM television company was deprived of its right to broadcast, and the same fate now awaits Gala TV.

In closing, I thank Mr Pourgourides for his report and encourage the authorities of the Council’s member states to be guided henceforth by this: freedom of expression, personal freedom and a free country all guarantee democracy and civil society.

THE PRESIDENT (Translation) – Thank you, Mrs Postanjyan. The next speaker is Mr Huseynov.

Mr HUSEYNOV (Azerbaijan) – I agree with and support the report. I want to speak about some of the problems for Azerbaijani refugees. The 600 MPs from the countries represented in the Assembly have a better relationship with their electorates than their Azerbaijani colleagues. I can say that with confidence, because no member state of this Organisation has 1 million refugees and internally displaced persons. There is no doubt that other members of the Assembly are criticised by their electorate from time to time, and even face the most forceful demands and expressions of opinion.

The situation of Azerbaijani MPs is different in this respect. More than 300 000 refugees, deported from their historical homelands, where they have lived for centuries, as well as more than 500 000 people deported from Nagorno-Karabakh and seven adjacent districts never inhabited by Armenians, are scattered all over Azerbaijan. An MP elected from any Azerbaijani region has in their electorate refugees and IDPs.

We have been talking about the sorrows of those people. We have prepared documents and we are fighting to put an end to the great tragedy that people in Azerbaijan experienced. Nevertheless, we see no result. Refugees and IDPs no longer talk to us – their words have run out. They simply look at us. They have lost everything they had, including their land, their homes, wealth built up over years and even the graves of their forefathers. The only thing they have left is their hope. They would cherish help from the Council of Europe and they hope for that help. Let us not allow them to lose the last stronghold that could help support their existence.

Armenian citizens are escaping abroad due to the unbearable conditions created by the authorities in the country. The regime is behaving like the enemy not only of Azerbaijan but of its own people. Consequently, the population resident in Armenia almost equals the number of Azerbaijani refugees and IDPs. The actions perpetrated by Armenia with regard to Azerbaijan and its own Armenian citizens are state terrorism. Due to that terror, thousands of human beings have lost their lives. Nearly 1 million Azerbaijani refugees and IDPs are gradually dying due to that terror.

The protection of human rights has been the supreme objective of the Council of Europe since its foundation. If we do not protect the rights of 1 million people, who can believe in our capacity to protect the rights of separate individuals? We should not expect refugees themselves to protect their rights and to eliminate their problems. Let us liberate them from disaster. Let us stop saying words that have no result and get down to productive activity.

I repeat my support for the reports produced by Mr Pourgourides and Mr Darchiashvili.

THE PRESIDENT (Translation) – Thank you Mr Huseynov. I call Mr Egorov.

Mr EGOROV (Russian Federation) said that it was an honour to address the Assembly for the first time. He was especially pleased to be discussing human rights and the implementation of the judgments of the Court, a subject of particular interest to him. It was vital to protect refugees and migrants, particularly those individuals who were in danger if sent back to countries without appropriate human rights.

He generally supported the report and resolutions, but he thought that Rule 39 interim decisions might be inappropriate to ensure progress, because the European Convention on Human Rights had no provision for such interim decisions. The rule might thus lead to inconsistent standards of implementation in different member states, which would be a bad way forward.

He gave examples of good implementation of the judgments of the Court: a court of the Russian Federation had recently decided that people with different sexual orientations from the norm were vulnerable and so should be offered special protection under the law. He noted that the report suggested that the Russian Federation had not always implemented the judgments of the Court and said that his country would now try to do better and so better protect human rights.

THE PRESIDENT – Thank you, Mr Egorov. I call Mr Mahoux.

Mr MAHOUX (Belgium) said that he too wished to compliment the quality of the report. He suggested that further scrutiny of the Court’s decisions by national parliaments and the Assembly would be welcome. He particularly wanted to discuss the recent ruling by the Court in MSS v Belgium and Greece, which, in his opinion, called into question the principles of Community law. He disagreed with this judgment. He considered the report to be of the highest quality and reminded members that laws were effective only if implemented by governments. The recent ruling by the Court had potentially prevented this from happening

THE PRESIDENT – Thank you. I call Mr Cebeci.

Mr CEBECİ (Turkey) – The implementation report draws our attention to issues of great importance, and it is the seventh report that the Committee on Legal Affairs and Human Rights has produced on them. Notwithstanding the substance of the report, I want to comment on a procedural matter. As the rapporteur mentions his visit to Turkey in the report, I would like to explain that the Turkish authorities have no objections whatever to the monitoring of obligations in connection with the implementation of the judgments of the European Court of Human Rights. That must be understood.

In the past, the Turkish authorities have always co-operated with the Parliamentary Assembly. On the last such occasion, when Mr Erik Jurgens visited Turkey, there was no difficulty and he had extensive contacts with the Turkish authorities. The secretary of the Committee on Legal Affairs and Human Rights can testify to that. This time, however, from the beginning the Turkish authorities had serious concerns about the sending of the rapporteur. Let me make this very clear: Mr Pourgourides is a respected and experienced lawyer, and an active member of this Assembly and the Committee on Legal Affairs and Human Rights. However, he is well known for his political engagement in issues to do with the Greek-Cypriot court cases against Turkey. I strongly argue that such political engagement creates a conflict of interest with his position as rapporteur. For such cases, we have a conflict of interest clause for the post of rapporteur.

Unfortunately, the report shows that our concerns in this respect were right, as do the remarks on Cyprus in the explanatory memorandum. The report’s contents reveal some political engagement, to the detriment of the required objectivity and impartiality. The report distorts the agreed terminology used by the European Court of Human Rights in referring to military intervention in Cyprus, makes subjective and selective comments on missing persons cases, minimises, and even ignores, the significance of the landmark Court decision on the Demopoulos property issues case, and has political value judgments.

To summarise, I hope that we no longer have to confront such issues. With all due respect to you, Mr President, if a parliamentarian feels there is a conflict of interest in respect of a report and rapporteur, that parliamentarian should be able to make their position clear.

THE PRESIDENT – Thank you. I call Mrs Err.

Mrs ERR (Luxembourg) conceded that the report would not be met with great enthusiasm by the general public, but it was important nevertheless as the Court was the jewel in the crown of the Council of Europe. It was also important because the Court was the only Council institution whose decisions were binding. Without the implementation of the Court’s judgments, the Court was a “toothless whale”.

The implementation of judgments depended on national governments rather than on the Council. Unsurprisingly, some states were better than others, but she was interested to note the states mentioned in the report that were particularly bad at implementing judgments. She had not intended to comment on any state but, after Mr Cebeci’s attack on the objectivity of the rapporteur she could not resist pointing out that Turkey was particularly bad at implementing the judgments of the Court and had even introduced legislation in an attempt to bypass the need for compliance. She urged Mr Pourgourides to ignore the attacks against him: his report was fair and balanced.

She had previously been responsible for ensuring that Luxembourg enforced the judgments of the Court and so was personally well aware of the essential role played by national governments and parliaments. She reminded the Assembly that, in 2008, the Committee of Ministers had called for a post to be created that would work closely with parliaments and the Assembly to co-ordinate the implementation of judgments and act as a supervisor in this area. She reiterated this recommendation, so far not taken up.

THE PRESIDENT (Translation) – Thank you, Mrs Err. Mr Marty and Mrs Papadimitriou are not here, so I call Mr Binley.

Mr BINLEY (United Kingdom) – I thank the rapporteur for highlighting a judgment of the European Court of Human Rights that has been received with great resentment in my country. I refer of course to the judgment on prisoner voting rights.

The Council of Europe was founded on principles of upholding democracy and civil liberties, and this Assembly was instrumental in preparing the European Convention on Human Rights, which led to the establishment of the Court. The Court has done much good work over the years and we, as one of its parents, should take pride in that. However, it has delivered a ruling of which last Thursday’s editorial in The Times stated: “Within Britain, virtually nobody believes that prisoners should have the right to vote, aside from prisoners”. The ban on serving prisoners voting has been in place since 1870. However, in a case brought by John Hirst, a man jailed for killing his landlady with an axe, the Court ruled that the UK’s automatic restriction on the right to vote for convicted prisoners was in violation of Article 3 of Protocol 1, and therein lies the problem.

Many constitutional experts have questioned the Court’s right to make such a ruling. The former law lord, Lord Hoffmann, summed up their concerns, arguing that it was not proper for a European supranational court to intervene in matters on which member states of the Council of Europe have not surrendered their sovereign powers. Many in Britain hold that the restriction of the right to vote in the case of those who freely choose to place themselves outside the rule of law for their own personal gratification, gain or ambition is not a denial of human rights but a choice they make themselves. Others would simply argue that the issue is a constitutional one, and not a human rights issue.

This matter touches on a greater problem. Increasingly, the actions of the Court are creating resentment, not only in my country but across the continent. Polls increasingly show a level of dissatisfaction that questions not only the credibility of the Court but of the EU itself, and that needs to be recognised. A political class that ignores the concerns of the people puts itself at great risk. Perhaps this Assembly needs to get round to facing up to these issues before it is too late; perhaps it is time for the good parents to act.

THE PRESIDENT (Translation) – Thank you, Mr Binley.

Lord Anderson, Mr Dendias, Mrs Grozdanova, Mr Hancock and Mr Liddell-Grainger are all absent, so I call Mr Santini.

Mr SANTINI (Italy) joked that, while he had hoped to speak in the debate, he had not thought it likely as his name was last on the speakers’ list. He was pleased that the report defended sacrosanct principles such as Rule 39. The Council of Europe needed to defend such principles, but he was concerned that the rules of the Court had not kept pace with the modern world: some of the rules of court had been overtaken by events and were obsolete.

Migrants and asylum seekers now acted differently and, increasingly, national legislation was more flexible in its response than Community law. He did, however, agree with those who claimed that the removal of asylum seekers from Italy and elsewhere in the Mediterranean was on the increase and that such asylum seekers were not always offered the basic protections required by the Convention. This did not make those states evil: it was merely their practical reaction to the great increase in asylum applications that faced the countries of southern Europe. Those states in northern Europe that criticised the actions of the countries of the Mediterranean were completely unaware of the scale of the problem they faced. He also rejected the criticism by Commissioner Hammarberg, as Italy had deployed significant resources to welcome and support thousands of illegal and legal migrants; it was a country that always wanted to accept asylum seekers if expulsion would endanger their life. He also noted that many of the expelled migrants were wanted by the police in their homelands. He concluded by saying that laws and the practical rights secured by the Convention had to adapt to changes in practical circumstances in society; otherwise, those laws would eventually become merely theoretical.

THE PRESIDENT (Translation) – Thank you, Mr Santini.

I had not seen Mr Hancock, who is in fact present. You have the floor.

Mr HANCOCK (United Kingdom) – I apologise, Mr President. You had just told off Ms Türköne, and I was outside because I had to make a phone call. I looked at the list and did not believe I would be called, so I am pleasantly surprised.

I congratulate all three rapporteurs on the challenge they have taken up on these important issues. Many of us have experienced people’s dissatisfaction either with the operation of the Court – mainly its failure to act quickly enough – or with member states then, disappointingly, not responding to Court decisions. We can criticise the Court for its slowness of action – and my goodness, does not a lot of work need doing to bring it into line with what most people would reasonably suggest is getting justice? However, that does not lift any obligation whatsoever from member states that do not honour the Court’s rulings. When we signed up for the Court, we signed up for it warts and all and in such a way that the obligations on member states were quite clear. If you believe in the rule of law, that starts and finishes at this centre, here. If we cannot honour our obligations to our own Court, what chance do people have of getting justice anywhere? That is a key issue.

The other issue is about how migrants and people who are deemed to be illegal are removed. I do not know whether anybody in this Chamber has visited a detention centre – unfortunately, I have, and fairly recently, in my own country. I assure you that it is not a very good experience. I have also visited Sangatte and other places where migrants are waiting to be removed. It is not nice to see people treated in that way.

I have also been witness to people who have been forcibly deported and I have seen the harm that that can do them. In the United Kingdom, we had a classic case in which a Nigerian woman was forcibly returned to Nigeria in handcuffs. She was gravely ill, and a few weeks after getting back to her own country she died because the proper medical care that the British Government had been assured would be there was not forthcoming.

We do have obligations as member states. We have to give credit to these human beings, who are in desperate situations. We cannot ignore their plight. A member state that in any way harms such individuals, simply through how it tries to control or deport them while they are in detention, is beyond reasonableness in anybody’s book. We should react against such action. That is why this report has my full support and why I commend all three rapporteurs for the effort that they have put in on these issues.

THE PRESIDENT – thanked Mr Hancock and said that he had not meant to remonstrate with Mrs Türköne, merely to remind colleagues of the rules of debate, which had to be adhered to. He could not see Mr Leigh and so called Mr Darchiashvili to respond to the debate.

Mr DARCHIASHVILI (Georgia) – I thank everyone for their very lively and interesting discussions and presentations.

Mr Díaz Tejera and others mentioned how problematic the Court’s work load is. That issue has been extensively addressed. Of course, I did not talk too much about the problem during my presentation because other issues, relating to the political will to implement Court rulings – whether interim measures or final judgments – without any conditions or impediments are more important than technical difficulties.

However, the problem that has been raised is also addressed, and that is why the Committee of Ministers, the member countries and the Court itself are invited by the resolutions and recommendations to work together on technical and procedural improvements in proceeding with so many requests.

On the interim measures, there is the problem of whether Rule 39 is binding. Lawyers are still debating that, but I think that we have the full right to stress that we are on the side of making it binding. Mr Egorov asked why we should especially mention people who are neither elderly nor children, but are still vulnerable – groups with connections to gender and sexual orientation issues, for example. The reason, Mr Egorov, is that these reports are not about what orientation is preferable or forcing orientation, but about protecting those who are really vulnerable. Let me assure you that in certain countries and circumstances, the people in those groups are the most vulnerable if neither Rule 39 nor other mechanisms of international law are applied to them.

THE PRESIDENT (Translation) – Thank you. I call Mr Pourgourides. You have four minutes.

Mr POURGOURIDES (Cyprus) – I thank all colleagues for their support; I thank them even for their criticisms. It seems to me that my colleagues from Turkey, for reasons that everybody can suspect, decided this afternoon to change their position and attack the report, challenging my integrity. I say “this afternoon” because in the committee, in their presence, the report was unanimously approved. In the committee, in their presence, my addendum about Turkey was unanimously approved. My reply to my Turkish colleagues is simply this. When it comes to human rights and the judgments of the Court, I receive instructions from nobody and I never play political games.

Secondly, on the issue of prisoners’ right to vote, I say to my Conservative colleagues from the UK that I recognise that the issue is sensitive in their country. However, I tell them, with all respect, that the rule of law was born in England and the UK’s international legal obligations require the UK to comply with the judgment with all due diligence. It is inappropriate – not to say unacceptable – for the oldest parliamentary country in Europe and a founding member of the Council of Europe to try to find excuses for not implementing a Court judgment.

As regards the proposal to give the Court the right to intervene when there are execution problems that have been outstanding for a long time, for that to be achieved we must change the Convention. For the time being, the Court has no role when it comes to execution, except perhaps the role that it was given recently by Protocol No. 14 – after a reference by the Committee of Ministers when there is some kind of interpretation problem concerning execution.

Finally, let me be clear about one thing. The Court is the greatest success of the Council of Europe. For it to remain the greatest success, it needs the support of all the parliamentarians of the 47 member states of the Council of Europe. That requires us mainly to make sure that the judgments of the Court are duly and diligently executed without excuses of any kind, from any source, including any government. If we do that, we will give the best service to our people all over Europe, because their happiness depends on the respect of their human rights by everybody.

THE PRESIDENT (Translation) – Thank you very much, Mr Pourgourides.

I call Mr Chope. You have two minutes to speak on behalf of the Committee on Migration, Refugees and Population.

Mr CHOPE (United Kingdom) – I should begin by quoting what the Secretary General said on Monday afternoon: “For us, the rule of law means upholding the sovereignty of the people.” That was a very significant statement, made more so by the exchange of views that we have heard during today’s debate. When the European Court of Human Rights’ judgments and procedures reflect the clear words of the Convention and its protocols, there is normally no problem. The problem arises when the judgments and procedures become exercises in judicial activism and are at odds with the views of ordinary citizens, thereby undermining, rather than upholding, the principle enunciated by the Secretary General that the rule of law means upholding the sovereignty of the people.

As parliamentarians, we know above all others that the penalties for keeping in touch with public opinion can lead to a rise in extreme parties taking advantage of democracy. That shows how the rule of law, as defined by the Secretary General, is very relevant to our role in ensuring that we promote principles of democracy, not to mention human rights.

We all want to support the European Court of Human Rights, but that becomes much more difficult if the Court overlooks that aspect of the rule of law that means upholding the sovereignty of the people. We have heard many definitions of the rule of law during this debate, but a lot of our difficulties would be overcome if we told the Court that, if it wants to change the law, the way to change the European Convention is to add protocols to it in the same way that a protocol was added, for example, to outlaw capital punishment. Such protocols are signed by the democratically elected governments and parliaments and the law is changed and that is supported, but where the Court changes the law without resorting to the parliaments of the individual member states, that creates a big tension and we ignore that tension at our peril.

THE PRESIDENT (Translation) – Thank you, Mr Chope.

I call Mr Holovaty. You have two minutes to respond on behalf of the Committee on Legal Affairs and Human Rights.

Mr HOLOVATY (Ukraine) – I consider that it is a must to react to the debate that has taken place today on these two reports, especially to the unprecedented statements that were made in the Chamber by three Turkish members of the Assembly. I have been a member of the Assembly for 15 years, but I do not remember anyone doubting Mr Pourgourides’ integrity and objectivity. The fact that the report and amendments were adopted unanimously today proves that Mr Pourgourides is impartial and objective. I simply suggest to Turkish colleagues that they should carefully read what Mr Pourgourides wrote in the addendum to the committee’s report after his visit to Ankara a few weeks ago. Let me read an extract from that text: “Despite undoubted, and indeed significant, progress made in the amelioration of the human rights situation in Turkey, coined as “the silent legal revolution”, it is nevertheless important for Turkish authorities to maintain and intensify efforts to comply with Strasbourg Court judgments, a substantial number of which have been on the Committee of Ministers docket for many years. “

When it is stated that there has been undoubted and significant progress – indeed, a silent legal revolution – is it not an objective and unbiased approach? So I congratulate Mr Pourgourides and thank him for his contribution and the work that he is doing following his predecessor, Erik Jurgens, in an impartial and objective way, and especially for the great and deep devotion to the issue of protecting human rights in Europe and our European values.

THE PRESIDENT (Translation) – Thank you. The debate is closed.

The Committee on Legal Affairs and Human Rights has presented a draft resolution to which seven amendments and two sub-amendments have been tabled and a draft recommendation to which three amendments have been tabled.

We will deal first with the draft resolution.

I understand that the Committee wishes to propose to the Assembly that the following amendments which were unanimously approved by the Committee should be declared as adopted by the Assembly under Rule 33.10.

Those are Amendments 1 to 3 and 7 and 8 to the draft resolution.

Is that so?

Mr HOLOVATY (Ukraine) – Yes.

THE PRESIDENT (Translation) – Does anyone object?

The following amendments have been adopted:

Amendment 1, tabled by Mr Christos Pourgourides, Mr Klaas de Vries, Mrs Renate Wohlwend, Mr Boriss Cilevičs, Mr Holger Haibach, Lord John E. Tomlinson, Mrs Marie-Louise Bemelmans-Videc, Mr Serhiy Holovaty, Mrs Mirjana Ferić-Vac, Mr Dick Marty, Mr Paata Davitaia and Mr Arcadio Díaz Tejera, which is, in the draft resolution, paragraph 7.8, after the words "problems in Turkey currently concern" insert the following words: ", in addition to the urgent need to ensure the proper functioning of the judicial system,".

Amendment 2, tabled by Mr Christos Pourgourides, Mr Klaas de Vries, Mrs Renate Wohlwend, Mr Boriss Cilevičs, Mr Holger Haibach, Lord John E. Tomlinson, Mrs Marie-Louise Bemelmans-Videc, Mr Serhiy Holovaty, Mrs Mirjana Ferić-Vac, Mr Dick Marty, Mr Paata Davitaia, Mr Arcadio Díaz Tejera, which is, in the draft resolution, paragraph 7.10, after the words "such as prisoners’ voting rights", add the following words: "(see, in this connection, the Court’s judgment in Greens and M.T, of 23 November 2010)".

Amendment 3, tabled by Mr Christos Pourgourides, Mr Klaas de Vries, Mrs Renate Wohlwend, Mr Boriss Cilevičs, Mr Holger Haibach, Lord John E. Tomlinson, Mrs Marie-Louise Bemelmans-Videc, Mr Serhiy Holovaty, Mrs Mirjana Ferić-Vac, Mr Dick Marty, Mr Paata Davitaia, Mr Arcadio Díaz Tejera, which is, in the draft resolution, paragraph 10.4, delete the words "(or envisaged, in the case of Turkey)".

Amendment 7, tabled by Mr Dmitry Vyatkin, Mr Leonid Slutsky, Mr Vyacheslav Timchenko, Mr Oleg Lebedev, Mrs Tatiana Volozhinskaya, Mr Sergey Egorov, Mr Nikolay Fedorov, Mr Valery Parfenov and Mr Alexander Pochinok, which is, in the draft resolution, paragraph 7.7.1, after the first sentence, insert the following sentence:

“The Assembly notes, in this connection, the coming into effect of Federal Law No.68-FZ of 30 April 2010, which provides for compensation for the violation of the right to trial within a reasonable time or the right to the execution of the decision within a reasonable time.”

Amendment 8, tabled by Mr Dmitry Vyatkin, Mr Leonid Slutsky, Mr Vyacheslav Timchenko, Mr Oleg Lebedev, Mr Sergey Egorov, Mr Nikolay Fedorov, Mr Valery Parfenov and Mr Alexander Pochinok, which is, in the draft resolution, paragraph 7.7.2, at the end of the second sentence, insert the following words: “; it is understood that the President of the Russian Federation has recently submitted to the Federal Assembly draft legislation on an integrated reform of the Ministry on the Interior”.

We will now consider the rest of the amendments to the draft Resolution. They will be taken in the order in which they affect the text. I remind you that speeches on amendments are limited to 30 seconds.

We now come to Amendment 10, tabled by Mrs Dzhema Grozdanova, Mr Latchezar Toshev, Mr Stanislav Ivanov, Mrs Elsa Papadimitriou, Mr Egidijus Vareikis, Mr Dariusz Lipiński and Mr Piotr Wach, which is, in the draft resolution, paragraph 7.1, first sentence, replace the word “further” with the following words: “in the future cases similar to these reported in the past as being.”

I call Mr Toshev to support Amendment 10.

Mr TOSHEV (Bulgaria) – This amendment better reflects the rapporteur’s intention. We have discussed this improved wording in committee and achieved support.

THE PRESIDENT (Translation) – I understand Mr Pourgourides wishes to move an oral sub-amendment to replace “as being” with “with respect to”

In my opinion the oral sub-amendment meets the criterion of Rule 33.6 and can be considered unless 10 or more members of the Assembly object. Is there any opposition to the oral sub-amendment being debated? Do 10 or more members object to the oral sub-amendment being debated?

That is not the case.

I therefore call Mr Pourgourides to move the oral sub-amendment. You have 30 seconds.

Mr POURGOURIDES (Cyprus) – This amendment simply improves the drafting of the paragraph.

THE PRESIDENT (Translation) – Thank you. Does anyone wish to speak against the oral sub-amendment? That is not the case.

What is the opinion of the mover of the amendment?

Mr TOSHEV (Bulgaria) – I support this oral sub-amendment. I wish to clarify that the words “as being” were missing from the original text of the amendment tabled by me and my colleagues, because of a misunderstanding – perhaps somebody at the Table Office, while being supportive, did not catch our idea exactly. However, Mr Pourgourides’ oral sub-amendment clarifies the situation, and that is why I support it.

THE PRESIDENT (Translation) – Thank you. I take it that the committee is in favour?

Mr HOLOVATY (Ukraine) – Yes.

The oral sub-amendment is adopted.

THE PRESIDENT (Translation) – Does anyone wish to speak against Amendment 10, as amended? That is not the case.

What is the opinion of the committee?

Mr HOLOVATY (Ukraine) – The committee is in favour.

THE PRESIDENT (Translation) – The vote is open.

Amendment 10, as amended, is adopted.

We come now to Amendment 9, tabled by Mr Holger Haibach, Mrs Renate Wohlwend, Mr Klaas de Vries, Mr Boriss Cilevičs, Lord John E. Tomlinson, Mrs Marie-Louise Bemelmans-Videc, Mr Kimmo Sasi, Mr György Frunda and Mrs Mirjana Ferić-Vac, which is, in the draft resolution, after paragraph 7.7.2, insert the following sub-paragraph:

“related to the numerous judgments of the Court finding grave and repeated violations of human rights in the North Caucasus region: the Assembly reiterates that the Russian Federation must not only pay compensation to successful applicants to the Court but also implement the individual measures required to put an end to the violations found, address their consequences, and take the necessary general measures to effectively prevent similar violations in the future;”

I call Mr Haibach to support Amendment 9.

Mr HAIBACH (Germany) said that the amendment made it clear that the Court was dealing with victims of crime to whom compensation could be paid as well as other measures

THE PRESIDENT (Translation) – Thank you, Mr Haibach.

I call Mr Vyatkin to support oral sub-amendment 1, tabled by Mr Dmitry Vyatkin, Mr Holger Haibach, Mr Sergey Sobko, Mr Igor Chernyshenko, Mr Valeriy Fedorov, Mr Nikolay Shaklein, Mr Ivan Popescu and Mr Davit Harutyunyan, which is, in amendment 9, after the words "Russian Federation must", replace the words "not only pay compensation to successful applicants to the Court but also" with the following words: ", just like the other State Parties to the Convention,".

Mr VYATKIN (Russian Federation) – Our sub-amendment suggests that we delete the words "not only pay compensation to successful applicants to the Court but also", and insert the words "just like the other State Parties to the Convention".

THE PRESIDENT (Translation) – Thank you. Does anyone wish to speak against the oral sub-amendment?

That is not the case.

What is the opinion of the mover of Amendment 9?

Mr HAIBACH (Translation) – In favour.

THE PRESIDENT (Translation) – I am not surprised that you are agreeing with a sub-amendment that you signed.

What is the opinion of the committee?

Mr HOLOVATY (Ukraine) – The committee is in favour of the sub-amendment.

THE PRESIDENT (Translation) – The vote is open.

Oral sub-amendment adopted.

Does anyone wish to speak against Amendment 9, as amended?

That is not the case.

What is the opinion of the committee?

Mr HOLOVATY (Ukraine) – The committee is in favour.

THE PRESIDENT (Translation) – The vote is open.

Amendment 9, as amended, is adopted.

We will now proceed to vote on the whole of the draft resolution contained in Document 12455, as amended.

The vote is open.

The draft resolution in Document 12455, as amended, is adopted, with 77 votes for, 8 against and 3 abstentions.

The Committee on Legal Affairs and Human Rights has also presented a draft recommendation to which three amendments have been tabled. I understand that the committee wishes to propose to the Assembly that all the amendments, Amendments 4, 5 and 6, which were unanimously approved by the committee, should be declared as adopted by the Assembly under Rule 33.10.

Does anyone object?

That is not the case.

As there is no objection, I declare that Amendments 4, 5 and 6 to the draft recommendation have been adopted.

The following amendments have been adopted:

Amendment 4, tabled by Mr Christos Pourgourides, Mr Klaas de Vries, Mrs Renate Wohlwend, Mr Boriss Cilevičs, Mr Holger Haibach, Lord John E. Tomlinson, Mrs Marie-Louise Bemelmans-Videc, Mr Serhiy Holovaty, Mrs Mirjana Ferić-Vac, Mr Dick Marty, Mr Paata Davitaia and Mr Arcadio Díaz Tejera, which is, in the draft recommendation, paragraph 1, after the words "European Court of Human Rights,", insert the word: "strongly".

Amendment 5, tabled by Mr Christos Pourgourides, Mr Klaas de Vries, Mrs Renate Wohlwend, Mr Boriss Cilevičs, Mr Holger Haibach, Lord John E. Tomlinson, Mrs Marie-Louise Bemelmans-Videc, Mr Serhiy Holovaty, Mrs Mirjana Ferić-Vac, Mr Dick Marty, Mr Paata Davitaia and Mr Arcadio Díaz Tejera, which is, in the draft recommendation, paragraph 1.3, replace the words "strongly encourage governments to improve and, where necessary, to" with the following words: "ensure that governments improve and, where necessary,"

Amendment 6, tabled by Mr Christos Pourgourides, Mr Klaas de Vries, Mrs Renate Wohlwend, Mr Boriss Cilevičs, Mr Holger Haibach, Lord John E. Tomlinson, Mrs Marie-Louise Bemelmans-Videc, Mr Serhiy Holovaty, Mrs Mirjana Ferić-Vac, Mr Dick Marty, Mr Paata Davitaia and Mr Arcadio Díaz Tejera, which is, in the draft recommendation, after paragraph 1.4, add the following sub-paragraph:

"ensure, in cases of persistent and flagrant disregard of the Strasbourg Court’s case law, that recourse be made to Article 8 of the Council of Europe’s Statute (suspension/withdrawal from the Organisation) of 1949".

We will now proceed to vote on the whole of the draft recommendation contained in Document 12455, as amended.

The vote is open.

The draft recommendation in Document 12455, as amended, is adopted, with 83 votes for, 10 against and 3 abstentions.

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