Una bicamerale sulla giustizia per riallineare l'Italia all'Europa

All'indomani dell'ennesimo richiamo del Consiglio l'Oua torna a chiedere riforme strutturali e vista l'indifferenza dei governi annuncia la presentazione del terzo controrapporto

Una bicamerale sulla Giustizia per elaborare soluzioni ai problemi contestati all'Italia dalle istituzioni europee. L'Organismo unitario dell'avvocatura, dopo l'ennesimo richiamo dell'assemblea parlamentare del Consiglio d'Europa, è tornata a chiedere riforme strutturali per la giustizia, anticipando la presentazione del III Controrapporto. I primi di ottobre, Strasburgo con la risoluzione 1516 leggibile tra i documenti correlati ha analizzato lo stato di attuazione delle pronunce della Corte dei diritti dell'uomo, fornendo dell'Italia uno spaccato piuttosto critico. Eccessiva durata dei processi, misure inadeguate e scarse iniziative legislative volte a risolvere la situazione, questa in estrema sintesi il succo della relazione svolta da Erik Jurgens in Assemblea il documento è leggibile tra i correlati . Sono quattro anni che l'Italia è sorvegliata speciale e sono altrettanti anni che il Consiglio d'Europa chiede un action plan risolutivo. L'Oua presentò il primo Controrapporto a novembre del 2002 vedi tra gli arretrati del 29 novembre e 5 dicembre 2002 , quindi il secondo arrivò a giugno del 2005. Alla fine di novembre, esattamente a distanza di quattro anni arriverà il terzo Controrapporto sullo stato della giustizia in Italia che l'Oua presenterà direttamente a Strasburgo. Da molto tempo segnaliamo, ad una opinione pubblica distratta, i richiami del Comitato dei ministri del Consiglio d'Europa che denunciano la grave crisi in cui versa la nostra giustizia - ha detto il presidente Oua Michelina Grillo - negli anni scorsi, grazie al nostro Centro studi, abbiamo raccolto i dati disponibili e presentato i sede europea diversi documenti che evidenziano come l'Italia sia agli ultimi posti per la durata dei processi e per la scarsa efficienza del sistema giudiziario. Lo abbiamo fatto in autonomia con i governi di ogni colore, il 29 novembre faremo di più, andremo andremo a Bruxelles e lì terremo una giunta straordinaria dell'Oua su questi temi e successivamente presenteremo il III Controrapporto sulla giustizia italiana . Al governo italiano Grillo ha chiesto interventi immediati, dialogo con gli avvocati, riforme organiche e risorse adeguate. Al Parlamento - ha concluso - rivolgiamo un appello affinchè si costituisca una commissione ad hoc sui problemi della giustizia e si fissi un ordine del giorno urgente per discuterne in Aula . Una commissione composta da deputati, senatori e da tutti i soggetti della giurisdizione per l'elaborazione delle soluzioni dei problemi contestati all'Italia dalle istituzioni europee.

Organismo unitario dell'avvocatura documento approvato dalla giunta esecutiva il 28 ottobre 2006 La Giunta Esecutiva dell'Organismo Unitario dell'Avvocatura Italiana, riunita in Roma nei giorni 27 e 28 ottobre 2006 Preso atto che l'Assemblea Parlamentare del Consiglio d'Europa, riunita in Strasburgo il 2 ottobre scorso, ha rilevato che le deficienze strutturali del sistema giudiziario italiano sono causa di numerose e reiterate violazioni della Convenzione europea dei diritti dell'uomo e costituiscono una grave minaccia per il principio del primato del diritto che l'attenzione dell'Europa verso l'efficienza della nostra giurisdizione data da decenni e che, in ragione del suo persistere e del suo continuo aggravarsi, il fenomeno della eccessiva durata delle procedure giudiziarie, che secondo la Risoluzione interinale Res DH 2005 114 adottata dal Comitato dei Ministri del Consiglio d'Europa il 30 novembre 2005 costituisce un danno reale per il rispetto dello Stato di diritto in Italia , esige un approccio interdisciplinare ed un impegno al più alto livello con la partecipazione degli attori principali che risulta pertanto pacifico e scontato, anche per i superiori Organi garanti della convenzione europea dei Diritti, che le riforme via via approntate abolizione delle Preture, istituzione delle Sezioni stralcio, istituzione della competenza dei Giudici di Pace, interventi sulle procedure dei processi, indennizzo diretto dagli Esecutivi fin qui succedutisi, riforme tutte tempestivamente e motivatamente contestate all'Avvocatura, si sono rivelate inconcludenti e dannose. Ritenuto che il conclamato degrado della giurisdizione, certificato anche dalla incontestabilità dei rilievi formulati dall'Organismo Unitario dell'Avvocatura sin dall'anno 2002 con il I Controrapporto sullo stato della giustizia, poi confermati, alla luce dei nuovi dati forniti dal Ministero, nell'anno 2005, con la pubblicazione del II Controrapporto, compromette alla radice il rispetto dei generali principi di uguaglianza, giustizia sociale e civile convivenza, che uno Stato democratico e di diritto è chiamato a non disattendere mai che la gestione strutturale ed ogni eventuale riforma, in meglio, del sistema giustizia dovrebbero essere, di conseguenza, impegno primario ed ineludibile per qualsivoglia Governo che ambisca definirsi tale che il sistema giustizia, riformato o meno, non può funzionare senza le necessarie risorse finanziarie, il cui mancato reperimento non è, pertanto, in alcun modo giustificabile che, in una nazione democraticamente governata, non può esservi riforma alcuna senza che i principi della stessa vengano compiutamente discussi, ancorché non condivisi, con tutti gli attori principali che l'Avvocatura, anche per i doveri che le derivano dalla Raccomandazione n. R 2000 21 del Comitato dei Ministri agli Stati membri sulla libertà di esercizio della professione di avvocato, è pacificamente soggetto, quindi attore, della giurisdizione, nell'ambito della quale opera sia nell'esercizio dei propri compiti professionali, sia con una continuativa, seppur impropria, azione di surroga indotta delle sopra richiamate deficienze strutturali del sistema, Dà mandato al Presidente di rappresentare la grave e non più tollerabile situazione all'Assemblea parlamentare ed al Comitato dei Ministri del Consiglio d'Europa, sia con l'invio del III Controrapporto, in fase di elaborazione, che nelle altre forme ritenute utili. Invita fermamente - il Governo a non disattendere oltre le aspettative dell'Avvocatura per la immediata ripresa a tutto campo del dialogo fra le parti, in ordine al quale ribadisce la propria immediata disponibilità. - i Parlamentari d'entrambe le Camere a chiedere sia l'immediata fissazione d'un Ordine del Giorno esclusivamente dedicato alla crisi del sistema giustizia, sia la costituzione d'una apposita Commissione composta da Deputati, Senatori e tutti i soggetti della giurisdizione per l'elaborazione delle soluzioni dei problemi contestati all'Italia dalle Istituzioni europee.

Consiglio d'Europa Assemblea parlamentare Implementation of judgments of the European Court of Human Rights Documento 11020 18 Settembre 2006 Report Committee on Legal Affairs and Human Rights Rapporteur Mr. Erik Jurgens, Netherlands, Socialist Group Summary The Parliamentary Assembly stresses that the authority of the European Court of Human Rights depends on the effective execution of its judgments by member states. Although by virtue of Article 46 of the European Convention on Human Rights, the supervision of judgments is the responsibility of the Committee of Ministers, this report confirms that the Assembly and parliaments of member states can, and increasingly do, contribute substantially to the speedy and effective implementation of the Court's judgments. The Assembly's Committee of Legal Affairs and Human Rights has now taken a more proactive approach by giving priority to the examination of cases which concern major structural problems and in which unacceptable delays of implementation have arisen, especially in five states Italy, the Russian Federation, Turkey, Ukraine and the United Kingdom. Special in situ visits were paid by the Committee's rapporteur to these states to examine, with national decision-makers and parliaments, the urgent need to solve outstanding problems. Reasons for non-compliance and difficulties in execution of the Strasbourg Court's judgments in eight other states Bulgaria, France, Germany, Greece, Latvia, Moldova, Poland and Romania were also analysed on the basis of written replies received from parliamentary delegations of these states. Although recognising positive developments in several states, including special domestic mechanisms put into place in Italy, Ukraine and the United Kingdom, the Committee is gravely concerned with the continuing existence of a number of major structural deficiencies and/or a lack of effective domestic mechanisms in several countries. The need to provide effective domestic mechanisms must, in specific instances, be co-ordinated at the highest political level. There is an imperative need for member states to accelerate and fully execute judgments of the Strasbourg Court, and the Committee proposes that it continues to monitor the situation closely, especially in states in which major problems have been identified. If the parliamentary delegations of these states do not show, within six months, concrete results or realistic action plans which have or will solve substantial and often longstanding issues of non-compliance with Strasbourg Court judgments, the Assembly should consider using Rule 8 of its Rules of Procedure suspension of the right of national delegations to be represented in the Assembly . The Committee also proposes that the Assembly recommends to the Committee of Ministers a number of measures to improve the effectiveness and visibility of the supervision of the execution of the Court's judgments. A. Draft resolution 1. The Parliamentary Assembly emphasizes that respect for the European Convention on Human Rights hereinafter ECHR , including the compulsory jurisdiction of the European Court of Human Rights hereinafter the Court and its binding judgments, is the main pillar of European public order which guarantees peace, democracy and good government in Greater Europe. It is therefore essential for the Assembly to maintain a keen interest in different aspects of the ECHR system and not least in the effective implementation of the Court's judgments, on which the authority of the Court depends. 2. It notes that the implementation of the Court's judgments is a complex legal and political process whose aim is to remedy violations found and to prevent new or similar ones. Such implementation, carried out under the supervision of the Committee of Ministers, can benefit from close co-operation between domestic and other institutions, including the Assembly and the parliaments of member states. 3. Although, according to Article 46 of the Convention, it is the Committee of Ministers which supervises the execution of decisions, the Assembly has increasingly contributed to the process of implementation of the Court's judgments. Five reports and Resolutions and four Recommendations concerning specifically the implementation of judgments have been adopted by the Assembly since 2000. In addition, various implementation problems have been regularly raised by other means, notably through oral and written parliamentary questions. A number of complex implementation issues have been solved with the assistance of the Assembly and of the national parliaments and their delegations to the Assembly. 4. In line with the May 2005 Council of Europe Summit decision that all member States accelerate and fully execute the Court's judgments, and the Committee of Ministers Declaration of 19 May 2006 indicating that the Parliamentary Assembly be associated with the drawing up of a recommendation on the efficient domestic capacity for rapid implementation of the Court's judgments, the Assembly feels duty-bound to further its involvement in the need to resolve the most important problems of compliance with the Court's judgments. 5. The Assembly's Committee on Legal Affairs and Human Rights has now adopted a more proactive approach and given priority to the examination of major structural problems concerning cases in which unacceptable delays of implementation have arisen, at this moment in five member states Italy, the Russian Federation, Turkey, Ukraine and the United Kingdom. Special in situ visits were thus paid by the Rapporteur to these states in order to examine with national decision-makers the reasons of non-compliance and to stress the urgent need to find solutions to these problems. The issue of improving domestic mechanisms which can stimulate correct implementation of the Court's judgments was given particular attention. 6. In eight other members states, namely Bulgaria, France, Germany, Greece, Latvia, Moldova, Poland and Romania, reasons of non-compliance and possible solutions to outstanding problems have been considered, making use of written contacts with the delegations of these countries to the Assembly. 7. The Assembly welcomes the serious attitude and the efforts displayed by the majority of the thirteen member states concerned and their national parliamentary delegations in assisting the Committee on Legal Affairs and Human Rights, yet at the same time it regrets the insufficiency of the response of certain parliamentary delegations France, Ukraine to written requests for information. 8. Three member states, in particular, merit praise for attempts to solve specific implementation problems by improving domestic mechanisms 8.1.The 2006 Azzolini Law in Italy creating a legislative basis for a special procedure for supervision of the implementation of judgments by the Government and Parliament 8.2.The 2006 Law in Ukraine providing for a co-ordinated approach, under the supervision of the Government agent before the Court, to ensure the proper implementation of the Court's judgments 8.3.A new practice introduced in March 2006 in the United Kingdom consisting of progress reports on the implementation of Strasbourg judgments presented by the Joint Human Rights Committee of the British Parliament. 9. With regard to specific implementation problems raised by the Assembly, it welcomes in particular decisive progress achieved in 9.1.Slivenko v. Latvia, where the applicants' rights of permanent residence in Latvia has recently been restored, in line with the Committee of Ministers requests. Latvia has thus erased the effects of the applicants' expulsion to Russia found by the Court to be in violation of the ECHR 9.2.Broniowski v. Poland, a first pilot judgment of the Court, in response to which the Polish Parliament passed a new law - in force since 7 October 2005 - which regulates, in accordance with the Court's guidance and an Interim Resolution of the Committee of Ministers hereinafter CM , the issue of the Bug River claimants' entitlements to compensation 9.3.Dogan v. Turkey, a judgment also raising an important systemic problem in response, Turkey adopted and implemented a new Compensation Law, thus providing to all internally displaced persons an effective domestic remedy to obtain compensation for property destroyed without prejudice to their right to return . 10. At the same time, the Assembly notes with grave concern the continuing existence of major structural deficiencies which cause a large numbers of repetitive findings of violations of the ECHR and represent a serious danger to the rule of law in the states concerned. These problems are 10.1. the excessive length of judicial proceedings in Italy CM Interim Resolution DH 2005 114 , which also leads to ineffective protection of a wide range of other substantial rights 10.2. major shortcomings in the judicial organization and procedures in the Russian Federation, most importantly 10.2.1.the deficient judicial review over pre-trial detention, which results in its excessive length and overcrowding of detention facilities CM Interim Resolution DH 2003 123 10.2.2.chronic non-enforcement of domestic judicial decisions delivered against the state CM/Inf 2006 19 10.2.3.violations of the requirement of legal certainty by extensive quashing of binding judicial decisions through the nadzor procedure CM Interim Resolution DH 2006 1 10.3. a number of similar systemic problems in Ukraine, aggravated by serious interferences with judicial independence CM Interim Resolution DH 2004 14 . 11. The Assembly deplores in addition that the following important and overdue implementation problems, stressed by both the Committee of Ministers and the Assembly, still remain without solution, thus prolonging the situation of non-compliance with Strasbourg Court judgments 11.1.in Italy and, to a certain extent in Turkey, the law still does not allow reopening of domestic criminal proceedings impugned by the Court, while these governments have taken no other measures to restore the applicants' right to a fair trial despite repeated demands to that effect by the Committee of Ministers and the Assembly among many other cases, Dorigo v. Italy and Hulki G nes v. Turkey 11.2.no progress has been achieved as regards the release of two applicants still detained in the Moldovan Republic of Transnistria the case of Ilascu et al. v. Moldova and Russian Federation CM last Interim Resolution DH 2006 26 , Russia in this case claiming that it has no influence in Transnistria, a contention which cannot be taken seriously 11.3.no comprehensive plan has been presented to resolve the systemic problem of overcrowding of detention facilities in Greece Dougoz and Peers judgments, CM Interim Resolution DH 2005 21 , which has just been highlighted in yet another judgment Kaja v. Greece of 27 July 2006 11.4.the lack of progress towards the solution of the systemic problem of indirect expropriation in Italy, an abusive practice - which is in fact illegal confiscation - conducted by local authorities to the detriment of applicants' property rights under the ECHR 11.5.no fresh progress reported by Romania concerning the ongoing reform of the law on national security or of other related acts in response to the Rotaru judgment CM Interim Resolution DH 2005 57 . 12. The Assembly reiterates that the initial existence of possible objective difficulties, which may well be understood, does not relieve the states concerned from their obligation to overcome these difficulties and resolve without further delay the aforementioned problems, thus bringing their systems into conformity with the ECHR. The prolongation of such situations of non-compliance puts at stake the effectiveness of the ECHR system and should be seen as a breach of the state's obligations under the Convention and under the Statute of the Council of Europe. 13. The Assembly has paid special attention to the implementation by the Russian Federation, Turkey and the United Kingdom of judgments relating to abuses by security forces and/or the lack of effective investigation into such abuses. It welcomes progress being made by Turkey and the United Kingdom in remedying structural underlying problems as well as the Russian authorities' willingness to do the same, as demonstrated by the first part of their action plan presented to the Committee of Ministers. The Assembly encourages the Russian authorities to fully exploit the experience of other states and to implement as rapidly as possible judgments concerning action of the security forces, notably in relation to the Chechen Republic. 14. The Assembly furthermore stresses the continuing obligation of all respondents in the cases referred to in paragraph 13 to remedy specific shortcomings in domestic investigations impugned by the Court in order to provide effective redress to applicants. Conclusive results in this last mentioned respect remain to be demonstrated by all three respondent States concerned. 15. The issue of Turkey's compliance with the Court's judgments in various fields has in the past called for the Assembly's special attention see Resolutions 1297 2002 and 1381 2004 , Recommendation 1576 2002 and the overall progress achieved to date in this respect is most encouraging. Many problems revealed by the Court have been successfully tackled, while others require further efforts. Additional progress is, however, notably awaited to prevent new violations of the right to freedom of expression in Turkey, as doubts still remain as to whether the authorities interpret the new provisions in conformity with the ECHR. 16. In addition, Turkey has still to fully implement the Court's judgments regarding the long overdue issue of missing persons as well as that relating to a series of violations of the rights of enclaved Greek Cypriots in Cyprus. The issue of displaced persons' property is also a source of concern. The Assembly attaches particular importance to measures adopted or yet to be taken following the Strasbourg Court's judgments, as they should constitute a tangible contribution to a comprehensive solution of the Cyprus issue. 17. The overall assessment of this new exercise by the Assembly indicates that lengthy or negligent compliance with the Court's judgments must be given greater political visibility both within the Council of Europe and in the member states concerned. The Assembly therefore considers that it should remain seized of this matter to ensure regular and rigorous parliamentary oversight of implementation issues both at the European and national levels. The first initiatives taken to this effect by certain national parliaments are encouraging but much still remains to be done. 18. A major reason of deficient compliance with Strasbourg Court judgments is the lack of effective domestic mechanisms and procedures to ensure swift implementation of required measures, often needing co-ordinated action of various national authorities. The responsible decision-makers in member states often ignore implementation requirements, as set out by the Committee of Ministers, or lack the appropriate domestic procedures to permit effective co-ordinated action. 19. The Committee of Ministers' and the member-states' methods and procedures should therefore be changed to ensure immediate transmission of information and involvement of all domestic decision-makers concerned in the implementation process, if necessary, with the assistance of the Council of Europe. 20. The Assembly has noted with interest the recommendation in the 2005 Summit's Action Plan addressed to the Council of Europe's Development Bank to facilitate, through the Bank's own means of action, the implementation of policies in areas covered by the ECHR. The Assembly strongly encourages the Bank and interested states to avail themselves of this possibility when such action can ensure the rapid implementation of judgments revealing important systemic problems. 21. The Assembly also notes with interest the recent development of the pilot procedure before the Court to address systemic problems. It notes, however, with some concern that this procedure has been conducted in respect of certain complex systemic problems on the basis of a single case which may not reveal the different aspects of the systemic problem involved. Under these circumstances, the pilot procedure may not allow a global assessment of the problem and, since all other related cases are frozen , the risk emerges that this procedure delays rather than speeds up the full implementation of the ECHR. The Assembly also notes that the efficacy of the pilot procedure can only be safeguarded if the Committee of Ministers diligently exercises its competence to assess the adequacy and sufficiency of the implementation measures taken by respondent states. 22.In view of the foregoing, the Assembly 22.1. invites all national parliaments to introduce specific mechanisms and procedures for effective parliamentary oversight of the implementation of the Court's judgments on the basis of regular reports by the responsible governmental ministries 22.2.calls upon the member states to set up, either by legislation or otherwise, domestic mechanisms for the rapid implementation of the Court's judgments, and that a decision-making body at the highest political level within the government takes full responsibility for and co-ordinates all aspects of the domestic implementation process 22.3. decides to verify on a regular basis if such mechanisms have indeed been instituted by member states, and if they are effective 22.4.urges the authorities of the 13 states concerned to resolve without delay outstanding implementation problems identified in the report of the Committee on Legal Affairs and Human Rights 22.5. urges in particular the authorities of Greece, Italy, Romania, the Russian Federation, Turkey, the United Kingdom and Ukraine to provide top political priority and to resolve implementation issues of particular importance mentioned in the present Resolution 22.6. invites national parliamentary delegations of states in which in situ visits were undertaken to present to the Assembly via the Committee on Legal Affairs and Human Rights, within six months, the results achieved in solving substantial problems that have been highlighted in the report or to show the existence of realistic action plans for the adoption of the measures required 22.7. reserves the right to take appropriate action, notably by making use of Rule 8 of its Rules of Procedure i.e. challenging the credentials of a national delegation , should the state concerned continuously fail to take all the measures required by a judgment of the Court, or should the national parliament fail to exert the necessary pressure on the government to implement judgments of the Court 22.8. decides to remain seized of the matter and welcomes the Committee of Minister's recent proposals to increase information sharing with the Assembly and to associate the Assembly with the ongoing preparation of a Recommendation to member states on efficient domestic capacity for rapid execution of the Court's judgments 22.9. in view of the imperative need for member states to accelerate and fully execute judgments of the Court, decides to continue the regular monitoring of the situation and invites its Committee on Legal Affairs and Human Rights to report back to the Assembly when it considers appropriate. B.Draft recommendation 1.The Parliamentary Assembly, referring to its Resolution 2006 on the implementation of judgments of the European Court of Human Rights, urges the Committee of Ministers to increase by all available means its effectiveness as the statutory guarantor of the implementation of the Court's judgments and to that effect recommends that it 1.1. reserves special treatment to the most important implementation problems, notably those identified in Resolution 2006 and to report to the Assembly as soon as possible on the results achieved in the resolution of these problems 1.2.improves coordination both between the Council of Europe's bodies and with the European Union and international institutions to ensure that the requirements of the Court's judgments be adequately reflected in - and supported by - their respective activities 1.3.improves its communication policy in order to give important Article 46, ECHR, implementation issues the necessary visibility at the European level and within the member states, at the same time ensuring that its work is more transparent and the resulting texts readily accessible 1.4.induces member states to improve and where necessary to set up domestic mechanisms and procedures - both at the level of governments and of parliaments - to secure timely and effective implementation of the Court's judgments through coordinated action of all national actors concerned and with the necessary support at a highest political level 1.5.intensifies its pressure and to take more robust measures in case of continuous non-compliance with a judgment by a member state due to either refusal, negligence or incapacity to take appropriate measures. C.Explanatory memorandum, by Mr Erik Jurgens, Rapporteur Contents I. Introduction the Assembly involvement in the implementation of judgments II. The 6th report scope and procedure III.Progress in resolving implementation problems summary overview and assessment i.Bulgaria - Al-Nashif v. Bulgaria judgment of 20/06/2002 ii.France - Lemoine Daniel v. France judgment of 17/06/2002 iii.Germany - G rg l v. Germany Judgment of 26/02/2004 iv.Greece - Dougoz and Peers v. Greece judgment of 03/03/2001 and 19/04/2001 v.Italy a.General situation important problems of non-compliance b.Recent measures to improve Italy's capacity to implement the Court's judgments c.Rapporteur's visit to Italy vi.Latvia - Slivenko v. Latvia judgment of 09/10/2003 vii.Moldova and Russian Federation - Ilascu and others v. Moldova and Russia judgment of 08/07/2004 viii.Poland - Broniowski v. Poland judgment - Cases concerning excessive length of proceedings ix.Russian Federation a. General situation important systemic problems revealed b. Rapporteur's visit to the Russian Federation x.Romania -Rotaru v. Romania judgment of 04/05/2000 -Dalban v. Romania judgment of 28/09/1999 xi. Turkey a. General situation b.Rapporteur's visit to Turkey xii.United Kingdom a.General situation b.Progress Report in Parliament on the implementation of judgments c.Rapporteur's visit to the United Kingdom xiii.Ukraine a. General situation important problems revealed b.Recent measures to improve Ukraine's capacity to implement the Court's judgments c.Rapporteur's visit to Ukraine IV.Concluding remarks Appendix I Summary of principal problems encountered in the execution of judgments with respect of 13 Contracting State Parties to the ECHR Appendix II Texts of press releases issued following the Rapporteur's visits to the United Kingdom, Turkey, the Russian Federation, Ukraine & Italy in chronological order Appendix III Background information concerning states visited by the Rapporteur I. Introduction the Assembly's involvement in the implementation of judgments 1.Past experience convincingly shows that the Assembly has contributed, in various ways, to a quicker resolution of often difficult issues of non-compliance with the judgments of the European Court of Human Rights hereinafter the Court . This is essential, as non-compliance by member states undermines the very authority of the Court. 2.This contribution has taken a variety of forms such as the raising the political visibility of outstanding issues, exerting pressure on responsible decision-makers, putting forward constructive proposals for solutions and ensuring adequate parliamentary action at the national level. In so doing the Assembly has adopted a number of reports and issued a series of resolutions notably for the attention of domestic authorities and recommendations to the Committee of Ministers. It has also organized debates and engaged a constructive dialogue with the Committee of Ministers through oral and written questions. The Assembly has also sought to ensure that its national parliamentary delegations involve themselves more actively in the pursuit of solutions to outstanding questions and in enabling, in general, the improvement of member states' domestic capacity to respond to the Court's judgments. Special attention to the implementation of the Court's judgments has also been given in the context of the Assembly's monitoring procedure. 3.Successful examples of such work are plentiful and can be illustrated by the Assembly's contribution to the overcoming of political hostility to execution e.g. Stran v. Greece, Loizidou v. Turkey , where necessary by ensuring the adoption of necessary legislation such as that providing for the reopening of domestic proceedings e.g. Hakkar v. France, Sadak & Zana v. Turkey and the adoption of comprehensive constitutional and legal reforms to prevent new violations similar to those found by the Court e.g. cases concerning the action of security forces and violations of - the still unresolved issue of - the freedom of expression in Turkey . 4.Since 20001, five reports and Resolutions and four Recommendations concerning specifically the implementation of Strasbourg Court judgments have been adopted by the Assembly. The involvement of the Assembly, and in particular of the national delegations of the member states concerned, has been shown to be instrumental in implementing decisions of the Court. 5.In the Rapporteur's opinion, which is widely shared in the Committee on Legal Affairs and Human Rights, the Assembly should continue, and indeed have a more prominent role, in promoting compliance with the Court's judgments. By helping to ensure that member states rapidly comply with judgments, notably judgments requiring parliamentary action, it provides tangible assistance to victims of human rights violations. It also helps the Committee of Ministers to discharge more speedily and effectively its responsibilities in this respect. The Assembly's enhanced action on this matter is totally in line with the 2005 Council of Europe's Warsaw Summit's decision to improve the efficiency and implementation of the European Convention of Human Rights hereinafter ECHR and strengthen its role as the constitutional instrument of European public order which guarantees peace, democracy and good government in a Greater Europe. II. The 6th report scope and procedure 6.The preparation of the 6th report started in June 2005 when a number of judgments of the European Court, and decisions under former Article 32 of the Convention, were selected with respect to 13 States Parties in accordance with the standard criteria applied by the Parliamentary Assembly for this exercise judgments and decisions which have not been fully implemented more than five years after their delivery other judgments and decisions raising important implementation issues, whether individual or general, as highlighted notably in the Committee of Ministers' Interim Resolutions or other documents. 7.The 13 States Parties concerned appear in Appendix I for more details see Introductory Memorandum AS/Jur 2005 35 and the Secretariat's working paper Doc AS/Jur 2005 32 and Addendum thereto . Three States, namely Italy, Turkey and Poland were identified at this stage as raising more substantial concerns. 8.Following the Committee's decisions adopted in June 2005, the President of the Assembly addressed letters to the heads of 13 national delegations namely Belgium, France, Germany, Greece, Italy, Latvia, Moldova, Poland, Romania, Russian Federation, Turkey, United Kingdom and Ukraine requesting information and/or specific action to implement certain judgments and decisions finding violations of the ECHR. 9.In December 2005, the Rapporteur presented to the Committee interim results of the exercise in his Supplementary Introductory Memorandum AS/Jur 2005 55 rev 2. At this stage, a number of new important implementation issues were added to the list in respect of some of the 13 countries concerned, in accordance with the second criterion mentioned above. 10.On 7th November 2005, the Committee endorsed the Rapporteur's suggestion that a number of important outstanding issues might more easily be solved through a more active involvement of the Assembly, notably through in situ visits by the Rapporteur to the countries where the most numerous and/or important implementation issues arise. Such visits were notably expected to increase the Assembly's ability to reach directly decision-makers in parliaments, governments and state administrations to discuss possible solutions to outstanding problems. 11.The five countries selected for these visits were Italy, Turkey, the Russian Federation, Ukraine and the United Kingdom. The detailed reasons of this selection appear in Part III below, which also presents a summary overview and assessment of progress achieved by all 13 countries in resolving implementation problems addressed by the Rapporteur since June 2005 and, where appropriate, outlines prospects for future action required. Omissis Italy a.General situation important problems of non-compliance 30.In November 2004, the Assembly adopted Recommendation 1684 2004 and Resolution 1411 2004 focusing on the implementation problems and called for appropriate action to be taken by Italy and by the Committee of Ministers so as to ensure rapid compliance with the Court's judgments. 31.It appears from the present exercise that the problem of Italy's compliance with the Court's judgments remains a serious concern, both as regards the number of cases pending for a long time before the Committee of Ministers more than a half of all cases are Italian cases and the number and the extent of structural problems that remain to be solved to comply with the judgments some 12% of the structural problems concern Italy . 32.The Committee of Ministers has adopted a number of Interim Resolutions, repeatedly calling for Italy's compliance and suggesting specific measures. However, in spite of these efforts, real, effective progress by Italy has remained insufficient. 33.A number of problematic cases/issues have been selected for this report see AS/Jur 2005 323 It is encouraging that some of them have been solved e.g. case of Grand Oriente v. Italy, where the Region of Marches has amended its legislation impugned by the Court as restricting the freedom of association . Progress in some other areas has been made as showed by the recent public information provided by the Committee of Ministers see Appendix III, Part V . However, the three following problems remain of major concern Structural deficiencies of the judicial system resulting in excessively lengthy proceedings, especially in civil cases, CM Interim Resolution DH 2005 114 , which also leads to ineffective protection of a wide range of other substantial rights this causes large numbers of repetitive violations of the ECHR and represents a serious danger to the Rule of Law and efficient government in Italy Italian law still does not allow reopening of domestic criminal proceedings impugned by the Court Italy has thus not complied up to this day with its obligations in the Dorigo case, where the applicant still suffers from serious consequences of unfair criminal proceedings, more than 6 years after the finding of the violation The systemic problem of indirect expropriation , an abusive practice conducted by local authorities to the detriment of the applicants' property rights under the ECHR. b.Recent measures to improve Italy's capacity to implement the Court's judgments 34.In order to respond to the Assembly's concerns, the Italian Parliament adopted in January 2006 a Bill submitted the then Chairman of the Italian Delegation to the Assembly, Mr. Azzolini. This Law creates a legislative basis for a special procedure for supervision of the implementation of judgments by the Government and Parliament. In addition the Presidents of the Senate and of the Chamber issued circulars insisting on the importance of systematic verification of the compatibility of draft laws with the Convention with a view to anticipating and more effectively preventing violations. 35.Moreover, a draft Law on reopening of domestic proceedings impugned by the Court, would appear to have recently been transmitted to the newly elected Parliament, although the Rapporteur received conflicting information as to this matter. In parallel, Italian courts appear to be developing a case law ensuring that sanctions imposed in violation of the ECHR cannot be executed. Awaiting the entry into force of the legislative reform, this development has to be strongly supported. c.Rapporteur's visit to Italy 36.During his visit to Italy on 5-7 July 2006, the Rapporteur welcomed the new constructive attitude of the Italian authorities, not least of the PACE Delegation Chairman, and their understanding that Italy's record of compliance with judgments should be urgently improved. The Rapporteur also noted the positive approaches demonstrated by the Head of Legal and Legislative Affairs Department of the Council of Ministers, the officials of the Ministry of Justice and the members of the Supreme Council of the Judiciary. 37.The Rapporteur notes with interest that the new Government has held a first meeting of a monitoring/co-ordinating group designated to ensure appropriate implementation of the Azzolini law and strongly encourages its speedy implementation of this law which may play a decisive role in resolving unacceptable systemic problems in Italy. 38.The Rapporteur encourages the Ministry of Justice to complete its work aimed at the improvement of the Pinto law and to permit reopening of judicial proceedings subsequent to an adverse finding by the Strasbourg Court. 39.On a more general level, it is encouraging to hear, from a number of sources within the state apparatus, declarations that the resolution of the problem of the excessive length of the proceedings has at long last been given the top priority. It would appear important to start an in-depth analysis of the root causes of this deeply disturbing phenomenon in Italy, including of the attitudes of the key actors judges, lawyers, citizens . In this respect, the Rapporteur noted with interest the Supreme Council of the Judiciary's awareness of the need to improve judges' and prosecutors' managerial and administrative skills, to change the professional culture and the attitude to their responsibilities. 40.The Rapporteur stresses that the complexity of the underlying problems is such as to require enhanced and concerted efforts of all actors of the Italian legal system. Thorough reform strategies in this respect still remain to be established. The Rapporteur counts on very close involvement of Parliament in this process. Omissis APPENDIX II Texts of press releases issued following the Rapporteur's visits to the United Kingdom, Turkey, the Russian Federation, Ukraine & Italy in chronological order E. Rapporteur's visit to Italy Italy not yet doing enough says Jurgens 7/07/2006 The visit to Italy by Erik Jurgens Netherlands, SOC , Rapporteur of the Parliamentary Assembly's Committee on Legal Affairs on the Implementation of judgments of the European Court of Human Rights, took place this week from the 5 to 7 July. During the visit, the rapporteur met with representatives of the Italian parliament, government, administration and judicial bodies to discuss most important implementation problems such as unacceptable and excessive length of judicial proceedings, so-called indirect expropriations and the need to re-open judicial proceedings to erase the consequences of trials found to have been unfair by the European Human Rights Court. The rapporteur welcomed the recent Azzolini Law , the draft text on re-opening of judicial proceedings, and other reform efforts, stressing the need for swift measures to ensure that the Strasbourg Court and Committee of Ministers are not suffocated by Italian cases . He urged the authorities, and in particular his parliamentary colleagues, to resolve outstanding problems as a matter of top priority. After the United Kingdom, Turkey, the Russian Federation and Ukraine, the Rapporteur's visit in Rome is the last in a series of five visits. The visits are in preparation for the Parliamentary Assembly's 6th Report on the Implementation of judgments of the European Court of Human Rights. In this report priority will be given to 13 Council of Europe member States in which important delays or difficulties in the implementation of the Court's judgments have arisen, in particular in the five countries visited. Note for further information on the rapporteur's work on the implementation of judgments of the European Court of Human Rights Introductory Memorandum Supplementary Introductory Memorandum Working Paper Omissis PART V Rapporteur's visit to Italy 1 Programme of the visit Wednesday 5 July 2006 15 00Meeting with Mr Filippo Patroni Griffi, Head of the Legal and Legislative Affairs Deparment of the Presidency of the Council of Ministers Thursday 6 July 2006 9 00Meeting with the Executive Committee of the High Council of the Judiciary 10 30Meeting with the President of the Council of State 12 00Meeting with members of the Italian Delegation to PACE, followed by a working lunch hosted by Mr Claudio Azzolini, Chairman of the Delegation 15 00Meeting with the Chairpersons and Deputy Chairpersons of the Committees on Constitutional Affairs, Justice, Foreigh Affairs and Environment of the Chamber of Deputies and the Committees on Constitutional Affairs, Justice, Foreign Affairs and Environment and the Land of the Senate. Also present Ms Carla Ciuffetti, of the Italian Parliament's Standing Observatory Friday 7 July 2006 11 00Meeting with the representatives of the Department for Justice Affairs of the Ministry of Justice 2 State of execution of selected Court Judgments16 2183 cases concerning the length of judicial proceedings see also for more detailed information, CM/Inf/DH 2005 31 and addenda 1 and 2, CM/Inf/DH 2005 33, CM/Inf/DH 2005 39, Interim Resolutions DH 97 336, DH 99 436, DH 99 437 and ResDH 2000 135 . In very many judgments against Italy, the European Court has found violations of Article 6 1,ECHR, on account of the excessive length of proceedings in effect 2183 cases, including 1571 civil cases, 364 employment cases, 7 enforcement proceedings, one civil case requiring exceptional diligence, 122 criminal cases and 118 administrative cases. The Committee of Ministers has also examined approximately 180 other cases settled by friendly settlement. Details concerning these and other cases can be found in document AS/Jur 2005 55 rev, at pages 8-11. Individual measures In 707 cases, proceedings are still pending, including 531 civil cases, 109 employment cases, 1 set of enforcement proceedings, 23 criminal and 43 administrative cases. The Italian authorities have reported that the finding of violations due to the excessive length of proceedings have been brought to the attention of the national courts concerned with a view to accelerating these proceedings. The latest list of such cases was sent to the Italian authorities on 27 May 2005 and information is awaited concerning the progress of the proceedings. General measures 1 Requirements of the judgments - Interim Resolution ResDH 2000 135 The special monitoring procedure set up under Interim Resolution ResDH 2000 135 provides that the Committee of Ministers examines this question on the basis of annual reports by the Italian authorities presenting measures taken or envisaged 1 to improve the efficiency of the judicial system 2 to deal with the longest-standing cases and 3 to compensate the victims of excessively long proceedings. 2 The Italian authorities' annual reports The Committee examined the annual reports for 2001 CM/Inf 2001 37 and 2002 CM/Inf 2002 47. Following its examination of the 2003 report CM/Inf 2003 20 , the Committee, noting a dearth of satisfactory results see Press Communique No. 466 2004 and document CM/Inf/DH 2004 23rev. , decided to resume consideration of the cases by April 2005 at the latest on the bass of the 2004 annual report and an additional action plan with a view to ensuring fulfilment of the expected execution objectives. Examination of the fourth report, for 2004 CM/Inf/DH 2005 31 and Addendum , scheduled for April 2005, was postponed until the initial information became available, i.e. the 928th meeting June 2005 - see Press Communique No. 190 2005 of 8/04/2005 and continued at the 933rd meeting July 2005 when the action plan was presented CM/Inf/DH 2005 39 . At that meeting the Deputies i invited the Italian authorities also to submit an action plan for administrative justice ii took note that it was difficult to arrive at a correct evaluation of the progress achieved on account of certain inconsistencies in the statistical data presented, and iii encouraged the Italian authorities, in co-operation with the Council of Europe, to develop reliable means of assessing the efficiency of justice with a view to identifying areas giving rise to structural problems and measures to resolve them. 3 Evaluation of the measures taken The following measures are set out in the 2004 annual report and the plan of action CM/Inf/DH 2005 31 and addenda 1 and 2, CM/Inf/DH 2005 39 a. General measures for civil and criminal justice - a considerable budgetary commitment e.g. 11,439,245 euros just for compensation granted under the Pinto Act to victims of excessively lengthy proceedings - reform of the judicial order with a view to improving the professionalism of judges through more severe selection procedures, merit-based career development, an independent magistrates' school and temporary appointment to directorial posts - increase of appeal court staff by 158 posts - improved management of summonses agreement between the Justice Ministry and the Post Office - promotion of good court practice. b. Measures for civil justice With the Competition Law Law No. 80 of 14/05/2005 , the Italian Parliament intervened in various ways in the judicial system some with immediate effect, some by powers delegated to the government to introduce general reforms by 15 November 2005 - reform of arbitration to encourage the use of this form of conflict resolution - modification of civil procedures governing hearings and the adduction of evidence - modification of enforcement procedures, so that judges may be assisted by professionals during proceedings - increased use of information technology in judicial communications - reform of bankruptcy procedures - reform of procedures before the Court of Cassation. c. Measures for criminal justice Two commissions have been set up to prepare reforms of the Criminal Code and the Code of Criminal Procedure. The Italian authorities expect to be able to evaluate the benefits of these measures in the mid to long term. d. Measures for administrative justice The Italian authorities have submitted no action plan for this area. However, they have indicated that i a new computer system is to be installed by mid-2006 ii the recruitment of 32 legal assistants is under way iii a programme is being considered to permit young people on civic service to be brought in to contribute to reducing the backlog. Measures announced in earlier annual reports have been completed in particular, judicial staff has been reinforced by 77 new judges and 39 administrative posts, and before the abolition of compulsory military service in Italy as of 1 January 2005, conscientious objectors were seconded to administrative tribunals as temporary reinforcements. The administrative tribunals' computer network has been consolidated and an internet site created featuring more than 400 000 documents available to the public. Situation to date. According to the statistical data evaluation problems persist because of the inconsistencies found by the Deputies see recommendations made at the 993rd meeting, July 2005 and clarification is necessary concerning how to calculate the average length of proceedings in a reliable and durable way. Nonetheless, some evaluation is possible on the basis of the information provided by the Italian authorities, particularly with regard to the level of the backlogs - In civil justice, before first-instance courts the general backlog has been reduced between the beginning of 2001 and the end of 2004 by some 18%, largely due to the help of the sezioni stralcio exceptional, specific magistrates responsible for getting rid of the oldest cases. However, this degree of reduction did not apply to ordinary civil proceedings, in respect of which the backlog was reduced only by less than 1%. During the same period, the backlog before justices of the peace, representing 21% of all first-instance proceedings, actually rose by 64%. Even more disturbing is the backlog in appeal courts, which has grown by 122%. The backlog of the Court of Cassation has grown by 33%. - In criminal justice the backlog has grown by 16% for the investigatory stages, by 60% before a judge sitting alone at first instance, 24% at appeal and 4% before the Court of Cassation. - For administrative justice, no figure has been provided for the average length of proceedings. The Italian authorities have underlined that in 40% of cases, interim measures adopted within 35-40 days have made it possible to limit the damage due to excessive duration. Law No. 205 of 2000 helped speed up proceedings and entitled appellants to ask for priority treatment for their cases. The backlog remains extensive, even though a gradual reduction may be discerned before first-instance administrative tribunals from 850,567 in 2002 to 777, 285 in 2004. Evaluation The measures taken, although many and varied, have not up to now brought about a significant improvement in the efficiency of Italian civil or criminal justice. Despite considerable investments, the implementation of structural reforms announced to date has been partial and tardy for example, the programme to recruit new judges has not been completed the Sezioni stralcio which were supposed to mop up the backlog of civil cases by the end of 2004, did not complete their task on schedule. The Pinto Act , which came into force in 2001, has provided the possibility of compensation for excessively long proceedings, and in January 2004 the Italian Court of Cassation aligned certain admissibility criteria with those of the Strasbourg Court. But the Act has not led to the acceleration of pending proceedings which have already lasted too long. Finally, the fourth annual report makes a tangential reference to certain structural causes, i.e., the obligatory character of criminal action, the lack of adequate means of filtering access to civil justice or mechanisms able to prevent or effectively sanction delaying tactics the weight of the backlog already accrued and the failure of extra-judicial conciliation procedures. On 30 November 2005, the Ministers' Deputies adopted a new Interim Resolution ResDH 2005 114, in which it recalled that the important structural problems at the basis of [very many] violations have been examined by the Committee for almost 20 years with a view to ensuring that the Italian judicial system is brought into conformity with the requirements of the Convention [and] that, in the 1990s, the efforts already deployed by the Italian authorities to solve these problems had led the Committee to close its supervision on the assumption that the comprehensive measures adopted would achieve satisfactory results see e.g. as regards civil proceedings, Resolution DH 95 82 in the case of Zanghì . It then went on to note that the problem of the excessive length of judicial proceedings in Italy persisted and that it was necessary to reopen its supervision of the question of the general and individual measures required to remedy the violations found and to prevent similar violation [and] CALL[ED] UPON the competent authorities to set up an effective national policy, coordinated at the highest governmental level, with a view to achieving a comprehensive solution to the problem and to present by the end of 2006 at the latest a new plan of action based on a stocktaking of results achieved so far and embodying an efficient approach to its implementation full text on Committee of Ministers web site . The Rapporteur now strongly urges both the executive and parliamentary bodies directly implicated in the implementation of the Azzolini Law No. 12 of 9 Januarry 2006 to ensure that the issue of excessive length of procedure cases be given priority at the highest political level, as indeed had been promised to him during his visit to Rome on 5-7 July 2006. Dorigo Paolo, judgment of 28/01/1999 Interim Resolutions DH 99 258 of 15/04/99 finding of a violation , ResDH 2002 30, ResDH 2004 13 and ResDH 2005 85 adoption of individual measures CM/Inf/DH 2005 13. The case concerns the unfairness of certain criminal proceedings as a result of which the applicant was sentenced in 1994 to more than thirteen years' imprisonment for, among other things, his alleged involvement in a terrorist bomb attack on a NATO military base in 1993. His conviction was based exclusively on statements made before the trial by three repented co-accused, without the applicant having been allowed to examine these statements or to have them examined, in conformity with the law in force at the relevant time violation of Article 6 1 taken together with Article 6 3d, ECHR . Individual and general measures 1 The applicant's situation The applicant has applied for revision of his conviction before the Bologna Appeal Court. On 13 March 2006, this court raised the question of the constitutional legitimacy of national law in that it does not authorise reopening of proceedings on the basis of the finding of a violation by the European Court. Pending a decision a decision by the Constitutional Court, enforcement of Mr Dorigo's sentence has been suspended and he has been set free. 2 Measures have been required for some time The Committee of Ministers has been insisting on Italy's obligation to take individual measures since 1999. The Committee has in particular taken account of the serious negative consequences of the violation for the applicant, consequences which could not have been erased by the payment of just satisfaction which covered the damage sustained up until 1999. Furthermore the violation found of the defence rights throws serious doubt on the safety of the applicant's conviction. 3 Action by the Committee of Ministers and the Parliamentary Assembly ? The Committee of Ministers has adopted several interim resolutions ResDH 2002 30 of 19 February 2002, ResDH 2004 13 of 10 February 2004 and ResDH 2005 85 of 12 October 2005 . The Committee firmly recalled the obligation of all authorities concerned to ensure the adoption of appropriate measures in the applicant's favour and called for legislation enabling the reopening o the case. ? The Chairman wrote on 18 January 2005 to the Italian Ministry for Foreign Affairs, asking for prompt, concrete measures to be taken in favour of the applicant. ? The Parliamentary Assembly also urged Italy to erase the consequences of the violation see Recommendation 1684 2004 and Resolution 1411 2004 of 23 November 2004 and oral questions No 14 by Mr Jurgens Rapporteur of present Report , of 5 October 2004, No 15 by Ms Bemelmans-Videc of 26 January 2005 and No 13 by Mr Lloyd of 22 June 2005. 4 Solutions considered by the Committee of Ministers The Committee of Ministers has considered the following solutions a Presidential pardon was raised before the Committee in July 2004. The Italian delegation subsequently indicated, however, that there appeared little chance that the applicant might rapidly obtain a pardon. It thus appeared to be a pointless remedy, even if coupled with adequate complementary measures. This option has not been re-considered by the Deputies. b Reopening the unfair proceedings Italian law still does not permit reopening of proceedings to conform with judgments of the Court. Interim resolutions ResDH 2002 30 of 19 February 2002, ResDH 2004 13 of 10 February 2004 and ResDH 2005 85 of 12 October 2005 all stress that reopening the impugned proceedings remains the best means of ensuring restitution in integrum in this case. c More recently, the judicial authorities have tried to reopen the criminal proceedings at issue so as to meet the Convention's requirements both the Bologna Appeal Court see above and the Udine Assize Court have raised the question of constitutional legitimacy. Information is awaited concerning the outcome of these proceedings. 5 The Committee's latest decisions and future action The Deputies have taken the view that the recent attempts by the judicial authorities to reopen the criminal proceedings at issue had not yet produced the expected results and expressed the wish that all these efforts should bring about a situation in conformity with the Convention's requirements. In particular at the 960th meeting March 2006 they encouraged the Italian authorities to find the means, be they jurisprudential or legislative, to erase the consequences of the violations for the applicant and to avoid similar problems in the future. 6 Other general measures Besides the persistent problems caused by the absence of adequate legislation providing for reopening of proceedings see above , the problems raised by the present case appear to have been resolved. Constitutional and legislative amendments were introduced in 1999, 2000 and 2001 to ensure respect of the adversarial principle and thus prevent new violations of the right to fair criminal proceedings similar to that found in this case. See for details Resolution ResDH 2005 28, adopted in the case of Craxi No. 2 against Italy. F.C.B., judgment of 28/08/91. Resolution DH 93 6 and Interim Resolution ResDH 2002 30 This case concerns the unfairness of certain criminal proceedings the applicant was sentenced, in absentia, in 1984, to twenty-four years' imprisonment without the domestic court having ascertained whether he had effectively intended to waive his rights to appear and defend himself violation of Articles 6 1 and 6 3.c, ECHR . In March 1993, the Deputies adopted Resolution DH 93 6, closing the examination of this case on the basis of the information given by the Government of Italy on the general measures adopted. Individual and general measures 1 The question of reopening In 1999, the Committee decided to resume consideration of the case as regards individual measures, when the applicant complained that, contrary to the information available in 1993, the consequences for him of the violation found had not been remedied indeed, the Italian authorities had requested his extradition from Greece in order to enforce the sentence imposed on him as a result of the unfair proceedings. This raises the question of reopening these proceedings. As from September 2000, the Italian authorities dropped their requests for extradition and indicated that a law authorising the reopening of criminal proceedings found to be in violation of the Convention was under consideration. However, despite repeated representations by the Committee of Ministers over many years and a number of unsuccessful attempts to adopt the necessary legislation, Italian law does not yet permit reopening of proceedings following a violation of the Convention, but there have been some recent attempts to bring about such reopening by jurisprudential means see the Dorigo case, cited above . Accordingly, following the applicant's arrest in Italy for other offences, an enforcement order was issued in respect of the conviction which had found to be unfair by the European Court, which means that the applicant still runs the risk of serving a prison sentence to which he was condemned in violation of the Convention. Nonetheless, the Appeal Court has not changed the enforcement order and the matter has been brought before the Court of Cassation. That said, the Committee of Ministers has taken note of the recent initiatives aiming at resolving the problem by jurisprudential means. Information is awaited on the development of these judicial proceedings in order to define the follow-up to be given to this case by the Committee of Ministers. 2 Other general measures dealt with during the adoption of the initial interim resolution. On 4-5 July 2006, at the 970th DH meeting, the Ministers' Deputies adopted a decision regarding the problem of reopening the impugned proceedings. This problem concerns also the Dorigo and F.C.B. cases. The decision' text reads The Deputies, 1.recalling that the judgments of the Court imply, under Article 46 of the Convention, the legal obligation to erase as far as possible the consequences of the violations found for the applicant and to prevent similar further violations 2.noted that in several similar cases submitted to the supervision of the Committee of Ministers the best appropriate way to erase the consequences of the violations of the right to a fair trial is the reopening of the domestic proceedings impugned cases of Dorigo, F.C.B., R.R., Bracci, Sedjovic 3.noted with great interest the recent jurisprudential efforts in the cases of Dorigo and F.C.B. to reopen the proceedings impugned but regretting that despite these efforts the applicants are still suffering the consequences of the violations after many years 4.invited the Italian authorities to complete their efforts with a view to ensuring, either by case-law or legislative reform, that the consequences of proceedings found to be in violation with the Convention in all the cases concerned, may be rapidly erased in accordance with Italy's legal obligations 5.decided to resume consideration of the progress in the implementation of the judgments and decisions concerned at the their 976th meeting 17-18 October 2006 , on the basis of further information to be provided by the authorities regarding the individual and general measures envisaged . Cases relating to the failure to enforce judicial eviction orders against tenants Interim Resolution ResDH 2004 72 These cases mainly concern the sustained impossibility for the applicants to obtain the assistance of the police to enforce judicial decisions ordering their tenants' eviction, principally on account of the implementation of legislation providing for the suspension or staggering of evictions see doc. AS/Jur 2005 32 pp. 10-11 . The European Court concluded that a fair balance had not been struck between the protection of the applicants' right to property and the requirements of the general interest violations of Article 1 of Protocol No. 1, ECHR . In most of these cases, the Court also concluded that, as a result of the legislation at issue, rendering eviction orders nugatory, the applicants had been deprived of their right to have their disputes decided by a court, contrary to the principle of the rule of law violations of Article 6 1 . Individual measures In Interim Resolution DH 2004 72, the Committee deplored the fact that, even in cases where the European Court of Human Rights has found violations, a number of applicants have still not been able to recover their property and that the failure to enforce court orders issued in their favour has persisted for many years. In the majority of cases, the applicants recovered their apartments between 4 and 17 years after the eviction decisions had been issued. Outstanding issues The following applicants have still not recovered possession of their flats since the date indicated Esposito Paola judgment of 19 December 2002, since 1992 , M.P. judgment of 19 December 2002, since 1987 , Marini judgment of 9 January 2003, since 1989 , C.T. II judgment of 9 January 2003, since 1994 , Carbone Anna judgment of 22 May 2003, since 1996 , Indelicato Antonio judgment of 6 November 2003, since 1992 and Antonio Siena judgment of 11 March 2004, since 1986 . Up-to-date information on these individual situations is needed. General measures Evaluation of the situation The problem of the sustained impossibility for these applicants to recuperate their apartments is reducing progressively. Statistical data published by the Ministry of the Interior for 1994 - 2004 show both improved efficiency in enforcement, evictions having increased by 27,53%, and reduced recourse to eviction, with a 35,19% reduction in applications to evict tenants and a 35,93% reduction in eviction orders by courts source . The data for 2005 are awaited. The same positive tendency is revealed with regard to the case-load of the European Court new applications are tailing off and the last of them concern situations having their origin some time ago. Amongst the main causes of the violations found by the European Court, the staggering of evictions is no longer a factor prefects may no longer hold back the assistance of the forces of order. Another case of delay, the legal suspension of evictions, is now applied much less widely. In its judgment No. 155 of 2004, the Constitutional Court held that such legislative suspensions could only be justified if applied for limited duration, and are henceforth applied under the supervision of the Constitutional Court. A recent law of this kind, No 148/2005, seems to have had no practical effect in terms of suspending evictions, while another, No 86/2006, limited suspension to just three cities Milan, Rome and Naples. Its application is moreover further limited by the fact that only a small number of very restricted categories of persons may benefit from suspension of eviction persons over 65, severely handicapped persons and those who do not have the means to pay the rent. It should be noted that the most recent legislation of this kind has also provided economic help for tenants or tax advantages for landlords. As a consequence it may be stated that since 2005 the suspension of evictions has had a negligible effect. Domestic remedies present situation 1 As regards action against tenants Article 1591 of the Civil Code obliges a tenant to compensate for any damage sustained as a result of delays in restoring the property to the landlord. Compensation is limited to a sum equivalent to the amount of the rent paid at the time of expiry of the lease, indexed to the cost of living and increased by 20% for each rental period during which the landlord could not enjoy his property Law No. 61/1989 . The Court of Cassation has established that such a tort may be proved simply by demanding a higher rent, fixed on the basis of the market rate judgment No. 1032/1996 and that the notice to quit remains valid from the date of expiry of the lease at issue, independently of the judge's decision on enforced eviction judgment No. 10560/2002 . Regarding Article 1591 of the Civil Code, the Strasbourg Court noted that see judgment in Lo Tufo, 21 April 2005, 69 national law makes it possible to erase the material consequences of violations and consequently rejected applications for just satisfaction in respect of pecuniary damage. 2 As regards action against the state in respect of violations of Article 1 of Protocol No. 1 According to the case-law of the Court of Cassation, the state's obligation to guarantee the enforcement of judicial decisions must be discharged most rigorously to compensate the citizen is the essential basic value of such redress. In its judgment No. 3873/2004 the Court of Cassation established that it was for the administration, not the landlord, to demonstrate the impossibility of bringing in the forces of order to enforce eviction orders. Such impossibility does not exclude the administration's responsibility in exceptional or unpredictable circumstances. Possible permanent crisis situations, such as those which may affect the judiciary or the administration, do not cancel out their responsibility for prejudice sustained, but on the contrary reinforce its presumption. 3 As regards action against the state in respect of violations of Article 6 1 The state's liability for prejudice sustained as a result of the excessive length of court proceedings is provided by the Pinto Act Law No 89/2001 . The case-law of the Court of Cassation confirms that this Act is applicable to delays or shortcomings in the enforcement of judicial eviction orders. In its inadmissibility decision in Proveddi against Italy, the European Court found that applicants in cases of this kind must have recourse to the Pinto Act to satisfy Article 35 1 of the Convention, in respect not only of Article 6 1 but also of Article 1 of Protocol No. 1. Information is awaited concerning the applicability of this means of redress to cases in which eviction is temporarily barred by legislative suspension. The European Court's judgment in the Immobiliare Saffi case has been published, not least in the academic legal journal Rivista internazionale dei diritti dell'uomo, No 1/2000, pp. 252 - 265. Cases concerning indirect expropriation All these cases concern the de facto expropriation of land belonging to the applicants following their emergency occupation, subsequently prolonged, by the public authorities. The lawfulness of such expropriation could not be tested because there was no formal need of transfer of the property and on account of the slowness of subsequent court proceedings. The European Court found this situation to be incompatible with the exercise of the applicants' right to the peaceful enjoyment of their property violations of Article 1 of Protocol No. 1, ECHR . Since the 1970s, Italian local authorities have been occupying land on an emergency basis without issuing expropriation orders. Courts confronted with this situation have developed the case-law rule of indirect expropriation , according to which public authorities may acquire title to the land at issue without formal expropriation if, following the expropriation and irrespective of the lawfulness of same, public works have been carried out on the property. This jurisprudence was acknowledged and modified by a number of laws of which the most recent was the Compendium on public utility expropriation . In its earliest judgments in 2000 see Belvedere Alberghiera and Carbonara and Ventura the Strasbourg Court found that the doctrine of indirect expropriation failed to offer sufficient legal certainty. In this respect it noted certain contradictory applications of the doctrine in Italian case-law. The Court further noted that indirect expropriation enabled the administration to set aside the ordinary rules of expropriation with the attendant risk of unpredictable or arbitrary results for the citizen. Indirect expropriation makes it possible to occupy land and bring about irreversible changes to it without a deed of transfer. Consequently, the only possible measure of legalisation is a finding of illegality by a court in the absence of a formal declaration by the public authority. Such a finding required proceedings, which must be brought by the victim and which will probably last a very long time. The European Court also found that indirect expropriation made it possible for the public authority to occupy and transform property without paying compensation at the time. Such compensation must be claimed by the victim, within five years. But the right to such compensation may be declared time-barred as the court fixes the starting point for the five-year period retroactively, thus making any hope of compensation pointless see judgment in Carbonara and Ventura, 71 . Individual measures Pending the proceedings on the issue of just satisfaction so far reserved by the European Court in most of these cases , the Italian authorities have been invited urgently to find adequate means to erase the continuing effects of the violations found. Identification of individual measures may be part of the solution of the general problem see below as it requires the setting up of an effective domestic system to secure the return of property expropriated de facto and/or to pay adequate compensation in respect of expropriation or damages. General measures Presidential decree No 327 of 8/06/2001, in force since July 2003, adopted a compendium of measures reforming expropriation practice. In particular, Article 43 provides that, following illegal occupation of land, the administration may issue a deed of expropriation in order to regularise the situation if justified by reasons of public interest. The Court of Cassation, in plenary decisions adopted after the entry into force of the compendium 5902/2003 and 11096/2004 stated that the norms in domestic law concerning indirect expropriation were sufficiently accessible, precise and predictable and excluded any risk of conflict with the Convention. The Council of State plenary decision 2/2005 emphasised that following the adoption of the Compendium, expropriation in Italy could no longer be the simple consequence of a de facto situation but rather the effect of a formal act, motivated by the administration, even if ex post facto. It also underlined that in the absence of such an act, the citizen has a primary right to the return of the property which the administration cannot refute on the sole ground that public works have been carried out. The efficacy of the measures contested by the European Court In its judgment in Prenna v Italy of 9 February 2006 64-65 the Strasbourg Court noted that -the existence of a legal framework as such is not enough to satisfy the principle of legality and that attention needs to be paid to the quality of law -historically, relevant Italian case-law is contradictory -there are also contradictions between case-law and statute law a. constructive expropriation is a means of legitimating illegalities committed by the administration in such a way as it can benefit from its illegal acts. The Court found that, whether it resulted from a case-law doctrine or a statutory text such as Article 43 of the Compendium, indirect expropriation cannot be considered a valid alternative to proper expropriation carried out according to law. Information still required In the light of the Strasbourg Court's recent judgment It would appear that new legislation is the best way of resolving the situations at the origin of the present violations and ensuring that the administration is at least strongly deterred from resorting to this kind of expropriation. Information is awaited in this respect. Information is in particular necessary about the measures envisaged to set up an effective domestic mechanism providing adequate compensation to all persons in the applicants' positions see Individual measures above . On 4 July 2006, 970th DH meeting, the Ministers' Deputies adopted the following decision The Deputies,1. 1.noted with concern the increasing number of cases subject to the supervision of the Committee of Ministers concerning violations of the Convention through constructive expropriations in Italy, and the fact that the complex problem at the origin of the violations is still not resolved, as illustrated by recent judgments of the European Court 2invited the Italian authorities to undertake all necessary efforts for the adoption of the individual and general measures required and to ensure rapidly an efficient redress at national level in respect of the violations already found for the applicants 3.decided to resume consideration of all the necessary measures for the implementation of these judgments at the 976th meeting 17-18 October 2006 on the basis of the draft Interim Resolution distributed by the Secretariat and possible comments from the Italian authorities . Cases mainly concerning various prison issues Labita, judgment of 06/04/00 Indelicato Rosario, judgment of 18/10/01, final on 18/01/02 These cases concern the absence of a thorough and effective investigation into the applicants' allegations of ill-treatment during their detention in the Pianosa prison in 1992 violations of Article 3,ECHR the Labita case also concerns various aspects of the detention on remand and the conditions of release of the applicant. Background information concerning both cases can be found in document AS/Jur 2005 32, at pp 12-13. Additional information The effectiveness of the measures adopted is currently being examined. As concerns the violation of Article 8, ECHR see Resolution ResDH 2005 55 adopted in the Calogero Diana case, detailing the measures taken to prevent new, similar violations. See also Resolution ResDH 2005 90, adopted in the Vaccaro case, detailing measures taken to prevent new, or similar violations with respect to the violation of Article 5 3, ECHR. 41576/98 Ganci, judgment of 30/10/03, final on 30/01/04 56317/00 Argenti, judgment of 10/11/2005, final on 10/02/2006 60915/00 Bifulco, judgment of 08/02/2005, final on 08/05/2005, Interim Resolution ResDH 2005 56 53723/00 Gallico, judgment of 28/06/2005, final on 28/09/2005 25498/94 Messina Antonio No. 2, judgment of 28/09/00, final on 28/12/00, Interim Resolution ResDH 2001 178 42285/98 Salvatore, judgment of 06/12/2005, final on 06/03/2006 The cases concern the failure to take, or delays in taking, judicial decisions on the merits of prisoners' complaints concerning ministerial decisions imposing the special prison regime provided by Article 41bis of the Prisons Act violations of Article 6 1 . The Messina case also concerns the absence of an effective remedy in this respect violation of Article 13 . The Argenti, Salvatore and Messina No. 2 cases also concern the lack of clarity of the Italian law on the monitoring of prisoners' correspondence in force at the material time, Law No. 354/75. This law left too much leeway to the public authorities, particularly in respect of the duration of monitoring and the reasons justifying it violations of Article 8 . Individual measures No individual measure is required as none of the applicants is subject to the special regime any longer. General measures 1 Violations of Article 8 Italy has adopted a series of general measures designed to remedy the structural problems at the origin of these violations see in particular the final Resolution adopted on 5 July 2005 in the Calogero Diana case, Resolution ResDH 2005 55 . 2 Violations of Articles 6 1 and 13 On the same day the Committee of Ministers adopted an Interim Resolution, ResDH 2005 56 concerning the right to an effective remedy against monitoring of prisoners' correspondence and other restrictions imposed on prisoners' rights - general measures, in the cases of Messina No 2, Ganci and Bifulco. In this resolution, the Committee of Ministers took note of a number of legislative and jurisprudential measures which have gone some way to resolving the problems highlighted by the European Court. It noted nonetheless with concern that the problem of slowness of this judicial review remains and that the statutory ten-day time limit is systematically not respected by domestic courts. The problems which remain outstanding - in particular the violations of Article 6 - constitute a specific facet of the persistent and much broader problem of the length of judicial procedures in Italy. 12 cases revealing various problems in bankruptcy proceedings P.G. II case Interim resolutions DH 97 18 of 28/01/97 finding of a violation and ResDH 2002 58 of 16/04/02 questions concerning general measures The case concerns the impossibility in Italian law to rehabilitate a person declared bankrupt before a minimum 5-year term has expired Article 143 of the law on bankruptcy . The applicant was thus refused an earlier rehabilitation, in spite of the fact that he had been declared bankrupt while he was a minor and de facto had no appointed guardian or legal representative. Thus until the lifting of the bankruptcy i.e. from the age of 16 until he was 22 , the applicant was subjected to supervision of his correspondence and could not leave his house without the authorisation of the Commissioner in Bankruptcy. Moreover until his rehabilitation at the age of 27, he was barred from voting or from standing for election, from exercising judicial functions, from acting as a guardian, as manager, administrator, liquidator or auditor of a joint-stock company and from belonging to a professional body violation of Article 8 . Individual measures No measure has been requested in particular as the applicant's bankruptcy has been lifted, the 5-year term having expired before the violation was found. General measures Legislative Decree No. 5/2006 has brought about a fundamental reform of bankruptcy law. The Italian authorities underline that a number of modifications had been made to remedy the violations found in the cases under consideration by the Committee of Ministers. In particular, the Bankruptcy Register and the rehabilitation procedure have been abolished Article 50.143 of the Law on Bankruptcy . There are changes to the administration of bankrupts' correspondence Article 48 the bankrupt or the legal representative of a bankrupt company or organisation is obliged to submit any post addressed to them in the context of the bankruptcy proceedings to the liquidator, whereas beforehand all letters were diverted directly to the liquidator. With regard to freedom of movement Article 49 the obligation of residence has become an obligation for the bankrupt to inform the competent authorities of any change of residence. The judge may authorise a bankrupt to be represented in cases of legitimate inability to appear or on presentation of a motivated request. Finally, remedy against judges' decisions in relation to correspondence, free circulation and disposal of property have been modified to provide better protection for the bankrupt Articles 26 and 36 . Cases concerning violations of the right to a court Nordica Leasing S.p.a S.B.F. S.p.a. Interim Resolution DH 97 599 The Committee of Ministers has decided to close its supervision of the present judgments. These cases concern the violation of the right of access to a court. The applicant companies were unable to recover sums due to them in proceedings they had brought to obtain adjudications of bankruptcy against their debtors. The applicable law Article 10 of Royal Decree No. 267 of 1942 provided that a declaration of bankruptcy could be made within a year of the debtor's ceasing activity. In both these cases, the financial police took so long to check the actual date of the cessation of activity that by the time the courts gave their verdict, the deadline had already expired. To be exact, in the S.B.F. case, the deadline expired on 11/01/93 and the court gave judgment on 12/05/93, and in the Nordica Leasing case the deadline expired on 1/07/98, the court giving judgment on 10/03/99 violations of Article 6 1 . Individual measures None, as the applicant companies could have recovered the sums through other remedies at their disposal, in particular individual enforcement proceedings see 35 of the Nordica Leasing judgment explaining why the European Court granted no compensation for pecuniary damages . General measures The European Court's judgment in the Nordica Leasing case has been translated and sent out with an explanatory note on the violations found to domestic courts including the Court of Cassation. Although the violation was not the result of any shortcoming in the law, the Constitutional Court, in its decision No. 319 of 2000, struck down Article 10 of the abovementioned Decree because it provided that the deadline should run from the date of cessation of activities rather than the date at which the enterprise concerned was struck out of the commercial register. This decision provides a formal starting point which is much more easily verifiable by computer search. Bottaro and others cases concerning bankruptcy proceedings 7503/02Neroni, judgment of 20/04/2004, final on 10/11/2004 52985/99S.C., V.P., F.C. and E.C., judgment of 6/11/03, final on 6/02/04 56298/00Bottaro, judgment of 17/07/03, final on 17/10/03 32190/96Luordo, judgment of 17/07/03, final on 17/10/03 44521/98Peroni, judgment of 06/11/03, final on 06/02/04 47778/99Bassani, judgment of 11/12/03, final on 11/03/04 51703/99Vadalà, judgment of 20/04/2004, final on 20/07/2004 55984/00Goffi, judgment of 24/03/2005, final on 06/07/2005 These cases concern disproportionate restrictions of the applicants' rights in excessively long bankruptcy proceedings. In order to protect the rights of creditors, Royal Decree No. 267 of 16/03/1942 provides that bankrupts are, inter alia, deprived of their right to administer and dispose of their possessions, that their correspondence should be monitored, that they are prohibited from bringing judicial proceedings and prevented from leaving their place of residence without judicial permission. Such restrictions are not open to criticism in themselves. However, when the length of the bankruptcy proceedings is excessive, as in these cases between 12 and 24 years they upset the balance between the general interest in payment of a bankrupt's creditors and the interest of the individual. The European Court accordingly found violations of the applicants' right to the peaceful enjoyment of their possessions violations of Article 1 of Protocol No. 1 , their right of access to a court violation of Article 6 1 , their freedom of movement violation of Article 2 of Protocol No. 4 and their right to respect for their correspondence violations of Article 8 . Furthermore, no effective remedy was available as regards the last of these rights violation of Article 13 in Bottaro and Neroni cases . Individual measures The need to accelerate bankruptcy proceedings and to lift the restrictions still imposed on the applicants has repeatedly been stressed before the Committee of Ministers. The latest reply from the Italian delegation indicates that the proceedings in the case of S.C., V.P., F.C. and E.C. are still pending, having lasted more than 14 years the same applies to the restrictions on the applicants. Information is awaited concerning the Vadalà case. General measures Legislative Decree No. 5/2006 has brought about a fundamental reform of bankruptcy law. The Italian authorities underline that a number of modifications had been made to remedy the violations found in the cases under consideration by the Committee of Ministers. In particular, the Bankruptcy Register and the rehabilitation procedure have been abolished Article 50.143 of the Law on Bankruptcy . There are changes to the administration of bankrupts' correspondence Article 48 the bankrupt or the legal representative of a bankrupt company or organisation is obliged to submit any post addressed to them in the context of the bankruptcy proceedings to the liquidator, whereas beforehand all letters were diverted directly to the liquidator. With regard to freedom of movement Article 49 the obligation of residence has become an obligation for the bankrupt to inform the competent authorities of any change of residence. The judge may authorise a bankrupt to be represented in cases of legitimate inability to appear or on presentation of a motivated request. Finally, remedy against judges' decisions in relation to correspondence, free circulation and disposal of property have been modified to provide better protection for the bankrupt Articles 26 and 36 . The Luordo and Bottaro judgments have been published in Italian in the Ministry of Justice's Bulletin, No. 1 of 15/01/2004 and have been brought to the attention of the competent authorities. Saggio case, judgment of 25/10/01, final on 25/01/02 The Committee of Ministers has decided to close its supervision of the present judgment. The case concerns the lack of an effective remedy to claim against a company under extraordinary administration, specifically in order to obtain payment of salary arrears due to the applicant, a senior employee, and to challenge the acts of the liquidators. A remedy was only possible, according to the applicable legislation which was later amended, after the final liquidation balance sheet and the scheme for distribution had been established violations of Article 13 . Individual measures The applicant was deprived of an effective remedy for a part of the administrative liquidation procedure. According to the information provided by the Italian delegation on 07/02/2005, the applicant had been in a position to make a claim after the deposition of the final liquidation balance sheet and the scheme for distribution, on 13/10/1999, but had not done so. As the applicant lodged no complaint, the final liquidation balance sheet and the scheme for distribution became incontestable as far as he was concerned, in accordance with national law. General measures Law No. 95 of 1979 on extraordinary administration, which was at the basis of the violation, has been amended by legislative decree No. 270, in force since August 1999. This law introduced a new regulation in extraordinary administration proceedings and in particular allows any creditor to challenge the action of a liquidator before domestic courts Article 17 . The Saggio judgment was published in the Bollettino Ufficiale of the Ministry of Justice, No. 13 of 17/07/2002 and brought to the attention of the Italian judicial authorities. F.L., judgment of 20/12/01, final on 20/03/02 The case concerns the lack of effective remedy in administrative proceedings to liquidate a company unable to pay its debts, and in particular the lack of an effective remedy to claim payment of privileged debts or to challenge the acts of the liquidators. Under the applicable legislation Royal Decree No. 267 of 1942 , judicial claims were only possible after the final liquidation balance sheet and the scheme for distribution had been established, which in the present case had been going on for more than 16 years violations of Article 13 . Individual measures The applicant did not have an effective remedy for a part of the administrative liquidation procedure. According to the information provided by the Italian delegation on 7/02/2005, after the final liquidation balance sheet and the scheme for distribution had been lodged in 1991, the applicant had made no claim although he was entitled to do so. As a consequence, the final liquidation balance sheet and the scheme for distribution became incontestable as far as he was concerned, in accordance with national law. General measures The impugned provisions of the Royal Decree No. 267 of 1942 at the origin of the violation have not been amended. The Italian authorities were invited to solve this problem and to prevent new, similar violations. Exchanges of information are currently under way. Grande Oriente d'Italia di Palazzo Giustiniani, judgment of 02/08/01, final on 12/12/01, Interim Resolution ResDH 2004 71 The Committee of Ministers has decided to close its supervision of the present judgment. The case concerns in particular a disproportionate interference with the freedom of association of the applicant, an Italian Masonic association affiliated to the Universal Freemasons, on account of the obligation for candidates to public office in the Marches region to declare that they are not members of the Freemasons. The European Court concluded that this restriction, established by Article 5 of Marches Regional Law No. 34 of 1996, was not necessary in a democratic society nor was it justified by the character of the public office concerned by the law violation of Article 11 . Individual measures The applicant association complained, by letters of 29/01/2003 and 17/05/2004 that it would continue to suffer from the restrictions contrary to the Convention as long as the law at the origin of the violation found was not modified, and accordingly solicited the adoption of the appropriate general measures see below . This problem was resolved with the adoption of the new law on 01/12/2005. General measures The abrogation or modification of Article 5 2, paragraph a of Marches Regional Law No. 34/1996 has been expected since December 2001 and on 8/12/2004 the Committee of Ministers adopted Interim Resolution ResDH 2004 71 urging the competent Italian authorities to take the necessary measures to guarantee the rights enshrined in Article 11 of the Convention concerning appointment to certain posts in the Marches Region . As a result, on 1/12/2005 the Marches Regional Council approved Law No. 27/2005 which abolished, in paragraph a of Article 5 2 the obligation for candidates for public office in the Region to declare that they were not freemasons. The new law excluded from public office in the Region any person belonging to a secret society banned under Article 18 of the Constitution, if such membership was established by a decision having the force of res iudicata. The Italian delegation has furthermore indicated that the pertinent laws of other regions do not seem to raise the same problems found by the Court in this case. Scozzari and others, judgment of 13/07/00 - Grand Chamber Interim Resolutions ResDH 2001 65 and ResDH 2001 151 The case concerns two violations of Article 8, the first concerning the placement of two minor children in a community, Il Forteto, after they had been taken into public care and the second concerning the authorities' failure to maintain opportunities to re-establish family bonds between the children and their mother the first applicant in particular through the organisation of regular visits. Details concerning this case can be found in document AS/Jur 2005 32, at pp.17-18. The children's present situation The elder son attained his majority in 2005 but the younger was only born in 1994 and will thus not reach majority until 2012. He is currently directly entrusted to the same married couple who looked after him at the time of the facts of the case, and continues to live in Il Forteto. The information provided by the authorities concerning the various questions related to the execution of this case see in particular ResDH 2001 65 and ResDH 2001 151 and in reply to the demarches by the Belgian authorities, are summarised below. Individual measures - As regards the child's placement Il Forteto In July 2001, the Florence court, invoking the European Court's judgment, changed its decision regarding the placement of the children so that they were no longer entrusted to Il Forteto as such but directly to the couple who had looked after them, within Il Forteto, at the material time. The absence of a term was also remedied, the placement being ordered for three years. The Florence Appeal Court, seised in 2002, fixed the term for the children's placement at June 2003. The Italian authorities to not agree to proposals to place the children in Belgium the mother has double Italian / Belgian nationality . Recently, in September 2005, the Florence Court, finding the conditions of the younger son's placement to be satisfactory, extended the term until September 2007. In its decision the court emphasised that even though the foster couple live in the community, their custody of the child was exclusive and direct their responsibility was individually linked to the child, over whom the community as such exercised no such custody or guardianship. According to the information available, this decision has been appealed. - As regards the continuing influence of certain personalities at Il Forteto following the European Court's judgment The 2001-2002 reports of the Tuscany regional authorities indicate that the former leading members of Il Forteto who had been found guilty of criminal acts were no longer part of the management of the co-operative and took no further part in bringing up children. This was confirmed by the delegation in September 2002. In addition the Supreme Judicial Council noted that the persons concerned had no further contact with children. - As regards the meetings between mother and children Programmes of psychological assistance were set up to help the applicant restore good relations with her children. Regular visits were organised from December 2001 onwards, initially once a month, then following the Youth Court judgment of October 2002 three times a month and ultimately, following the court judgment of 2004, every week, with the additional possibility of meeting outside Il Forteto. In January 2005 following an alleged kidnapping attempt, visits were suspended pending the outcome of a criminal investigation. In September 2005, the court authorised resumption of meetings between the mother and her younger son in a secure environment and with appropriate psychological support. - As regards supervision of the correct implementation of the court decisions authorising visits Shortly after the European Court's judgment, the social service officials called into question in the case were replaced. In a decision of September 2005, the Florence Court assessed the evolution of relations between the mother and children in relation to Italy's obligation under the judgment. It found that the supervision of the implementation of the decisions concerning visits had been effective. In this context the court highlighted the changes in the social service personnel and the fact that the case was also in the hands of new magistrates. At the 960th meeting March 2006 the Deputies took note of the ongoing efforts of the Italian authorities to resolve this case. The Secretariat was instructed to clarify certain outstanding questions with the Italian authorities and to evaluate the possibility of closing the case. General measures In 2001 a new law, No. 149/2001, changed the rules concerning custody of minors on account of family problems requiring their removal. Whilst it is true that the present case concerns different type of custody, linked to the parents' opposition to placement despite their harmful behaviour towards the children, the principles laid down in the new law may be helpful for a general interpretation. Thus it may be noted that the new law reinforces the principle of the minor's right to have his own family , a right which must be guaranteed without distinction as to sex, ethnic origin, age, language or religion, whilst respecting the minor's cultural identity. Foster-care orders must clearly indicate at what times and in what way the foster-carers are to exercise the powers given them, as well as how members of the nuclear family are to maintain their relationships with the minor. It must also indicate the probable duration of the placement, which must be determined in relation to all measures destined to promote the reunification of the family. The social service responsible for assistance and supervision during placement must inform the judge of any significant events and must also submit half-yearly reports on the evolution of the assistance programme, its probable duration and any progress in resolving the difficulties in the family of origin. The social service facilitates the minors contacts with, and ultimate return to, his or her natural family. A 2003 Opinion by the Supreme Judicial Board CSM noted that the reinforced supervisory system instigated by Law 149/2003 is generally satisfactory. The CSM also requires that where children are placed with carers who have criminal records, youth magistrates must a exercise special attentiveness and vigilance, b duly justify their placement decisions, c examine carefully the advisability of making such placements continuous and d take due account of the legitimate preoccupations of those concerned. The Italian authorities indicate that seminars have been organised to raise the awareness of youth magistrates and social workers of the requirements of the Convention as interpreted by the Strasbourg case-law in respect of family law. C.A.R. srl, Interim resolution DH 98 154 The Committee of Ministers has decided to close its supervision of the present judgment. The case concerns a violation of the applicant company's right of peaceful enjoyment of its possessions, related to the fact that, in order to preserve public order, the Prefect of Latina refused, from 1991 until 1994, to provide police assistance to evict a number of Somali refugees who occupied its buildings without title, in spite of the existence of a judicial eviction order. The European Commission of Human Rights Report of 10 September 1997 noted that the absence of any compensation for the material damage that the applicant company had suffered broke the necessary balance between the protection of the applicant company's right to property and the requirements of public order violation of Article 1 of Protocol No 1, affirmed by the Committee of Ministers' Interim Resolution DH 98 154 . Individual measures The pecuniary and non-pecuniary damage sustained by the applicant company was compensated by the Committee of Ministers' decision to award just satisfaction on the basis of a friendly settlement concluded between the parties through the good offices of the Chairman of the Ministers' Deputies. General measures Since the events at the origin of this case, there have been developments in legislation and case-law making it possible to obtain compensation for the consequences of failures by the forces of order to enforce judicial eviction orders. These include the following a the Court of Cassation, in its judgments Nos. 2478 of 18/03/1988, 5233 of 26/05/1998 and 3873 of 26/02/2004, in application the general rules of the Civil Code Article 2043 progressively established the principle that compensation represents the obligatory minimum guarantee for the protection of any individual right violated pursuant to a public interest protected by the Constitution. Such is the case, among others, for the enforcement of a judicial act Article 24 of the Constitution, concerning resort to justice for the upholding of rights , as the possibility of litigation extends to the implementation of final, binding judicial decisions in line with the case-law of the European Court . Once the principle was accepted in 1988, the Court of Cassation progressively refined and applied it, defining the obligations of the administration with regard to compensation. In particular it reversed the burden of proof, so that it is for the public administration and no longer the appellant land-owner, to demonstrate the impossibility of invoking the forces of order to secure enforcement of judicial decisions. Such impossibility must be evaluated with particular rigour. The Court of Cassation also specified that the administration's liability cannot be set aside unless the circumstances are exceptional or unforeseen. b the Pinto Law Law No. 89 of 2001 provides a right to compensation in cases of unreasonable length of judicial proceedings in violation of Article 6 1 of the Convention. The Court of Cassation underlined in its judgments Nos.11046 and 14885 of 2002, that the Pinto Law is applicable to cases of delays or failures of execution of judicial eviction orders. Lower Italian courts have effectively applied the Pinto Law in cases of failure to enforce judicial eviction orders see e.g. the European Court's decision of inadmissibility in the case of Provvedi vt Italy, 02/12/04 . Reporting committee Committee on Legal Affairs and Human Rights Reference to committee Resolution 1268 2002 and Doc 10327, Reference No 3048 of 24 January 2005 Draft resolution and draft recommendation adopted unanimously by the Committee on 15 September 2006. Members of the Committee Mr Dick Marty Chairperson , Mr Erik Jurgens, Mr Adrien Severin, Mr Gy rgy Frunda Vice-Chairpersons , Mrs Birgitta Ahlqvist, Mr Athanasios Alevras, Mr Rafis Aliti, Mr Alexander Arabadjiev, Mr Miguel Arias, Mr Birgir rmannsson, Mr José Luis Arnaut, Mr Abd lkadir Ates, Mr Jaume Bartumeu Cassany, Mrs Meritxell Batet, Mrs Soledad Becerril, Mrs Marie-Louise Bemelmans-Videc, Mr Giorgi Bokeria, Mrs Olena Bondarenko alternate Mr Vitaliy Shybko , Mr Erol Aslan Cebeci, Mrs Pia Christmas-M ller, Mr Boriss Cilevics, Mr Domenico Contestabile, Mrs Herta D ubler-Gmelin, Mr Marcello Dell'Utri, Mrs Lydie Err, Mr Jan Ertsborn, Mr V clav Exner, Mr Valeriy Fedorov alternate Mr Alexey Alexandrov , Mr Jean-Charles Gardetto, Mr J szef Gedei, Mr Stef Goris, Mr Valery Grebennikov, Mr Holger Haibach, Mrs Gultakin Hajiyeva, Mrs Karin Hakl, Mr Nick Harvey alternate Mr Christopher Chope , Mr Michel Hunault alternate Mr Yves Pozzo di Borgo , Mr Rafael Huseynov, Mrs Fatme Ilyaz, Mr Kastriot Islami, Mr eliko Ivanji, Mr Sergei Ivanov, Mr Tom Jirsa, Mr Antti Kaikkonen, Mr Yuriy Karmazin, Mr Karol Karski, Mr Hans Kaufmann, Mr Andr s Kelemen, Mr Nikolay Kovalev alternate Mr Yuri Sharandin , Mr Jean-Pierre Kucheida, Mrs Darja Lavti ar-Bebler, Mr Andrzej Lepper, Mrs Sabine Leutheusser-Schnarrenberger, Mr Tony Lloyd, Mr Humfrey Malins, Mr Andrea Manzella, Mr Alberto Martins, Mr Tito Masi, Mr Andrew McIntosh, Mr Murat Mercan, Mr Philippe Monfils alternate Mr Luc Van den Brande , Mr Philippe Nachbar, Mr Tomislav Nikolic, Ms Ann Ormonde alternate Mr Paschal Mooney , Mr Rino Piscitello, Mrs Maria Postoico, Mr Christos Pourgourides, Mr Jeffrey Pullicino Orlando, Mr Martin Ragu , Mr Fran ois Rochebloine, Mr Armen Rustamyan, Mr Michael Spindelegger, Mrs Rodica Mihaela Stanoiu, Mr Christoph Strasser alternate Mr Johannes Pflug , Mr Petro Symonenko, Mr Vojtech Tk c, Mr yvind Vaksdal, Mr Egidijus Vareikis, Mr Miltiadis Varvitsiotis, Mrs Renate Wohlwend, Mr Krysztof Zaremba, Mr Vladimir Zhirinovsky, Mr Miomir u ul

Consiglio d'Europa Risoluzione 1516 2006 Implementation of judgments of the European Court of Human Rights Approvata dall'Assemblea parlamentare il 2 ottobre 2006 1. The Parliamentary Assembly emphasises that respect for the European Convention on Human Rights ECHR - ETS No. 5 , including the compulsory jurisdiction of the European Court of Human Rights the Court and its binding judgments, is the main pillar of European public order which guarantees peace, democracy and good government in greater Europe. It is therefore essential for the Assembly to maintain a keen interest in different aspects of the ECHR system and not least in the effective implementation of the Court's judgments, on which the authority of the Court depends. 2. It notes that the implementation of the Court's judgments is a complex legal and political process whose aim is to remedy violations found and to prevent new or similar ones. Such implementation, carried out under the supervision of the Committee of Ministers CM , can benefit from close co-operation between domestic and other institutions, including the Assembly and the parliaments of member states. 3. Although, according to Article 46 Binding force and execution of judgments of the ECHR, it is the Committee of Ministers which supervises the execution of judgments, the Assembly has increasingly contributed to the process of implementation of the Court's judgments. Five reports and resolutions and four recommendations specifically concerning the implementation of judgments have been adopted by the Assembly since 2000. In addition, various implementation problems have been regularly raised by other means, notably through oral and written parliamentary questions. A number of complex implementation issues have been solved with the assistance of the Assembly and of the national parliaments and their delegations to the Assembly. 4. In line with the May 2005 Council of Europe Summit decision that all member states should accelerate the full execution of the Court's judgments, and the Committee of Ministers Declaration of 19 May 2006 indicating that the Parliamentary Assembly will be associated with the drawing up of a recommendation on the efficient domestic capacity for rapid implementation of the Court's judgments, the Assembly feels duty-bound to further its involvement in the need to resolve the most important problems of compliance with the Court's judgments. 5. The Assembly's Committee on Legal Affairs and Human Rights has now adopted a more proactive approach and given priority to the examination of major structural problems concerning cases in which unacceptable delays of implementation have arisen, at this moment in five member states Italy, the Russian Federation, Turkey, Ukraine and the United Kingdom. Special in situ visits were thus paid by the rapporteur to these states in order to examine with national decision makers the reasons for non-compliance and to stress the urgent need to find solutions to these problems. The issue of improving domestic mechanisms which can stimulate correct implementation of the Court's judgments was given particular attention. 6. In eight other members states - namely Bulgaria, France, Germany, Greece, Latvia, Moldova, Poland and Romania - reasons for non-compliance and possible solutions to outstanding problems have been considered, making use of written contacts with these countries' delegations to the Assembly. 7. The Assembly welcomes the serious attitude and the efforts made by the majority of the 13 member states concerned and their national parliamentary delegations in assisting the Committee on Legal Affairs and Human Rights, yet at the same time it regrets the insufficiency of the response of certain parliamentary delegations for example, France and Ukraine to written requests for information. 8. Three member states, in particular, deserve praise for attempts to solve specific implementation problems by improving domestic mechanisms 8.1. Italy adopted the Azzolini law in 2006, which has created a legislative basis for a special procedure for the supervision of the implementation of judgments by the government and parliament 8.2. Ukraine adopted a law in 2006 providing for a co-ordinated approach, under the supervision of the government agent before the Court, to ensure the proper implementation of the Court's judgments 8.3. The United Kingdom introduced a new practice in March 2006 consisting of progress reports on the implementation of Court judgments presented by the Joint Human Rights Committee of the British Parliament. 9. With regard to specific implementation problems raised by the Assembly, it welcomes in particular decisive progress achieved in 9.1. Slivenko v. Latvia, where the applicants' rights of permanent residence in Latvia has recently been restored, in line with the Committee of Ministers requests. Latvia has thus erased the effects of the applicants' expulsion to Russia found by the Court to be in violation of the ECHR 9.2. Broniowski v. Poland, a first pilot judgment of the Court, in response to which the Polish Parliament passed a new law in force since 7 October 2005 regulating the issue of the Bug River claimants' entitlements to compensation, in accordance with the Court's guidance and an interim resolution of the Committee of Ministers 9.3. Dogan v. Turkey, a judgment also raising an important systemic problem in response, Turkey adopted and implemented a new compensation law, thus providing to all internally displaced persons an effective domestic remedy to obtain compensation for property destroyed without prejudice to their right to return . 10. At the same time, the Assembly notes with grave concern the continuing existence of major structural deficiencies which cause large numbers of repetitive findings of violations of the ECHR and represent a serious danger to the rule of law in the states concerned. These problems are 10.1. the excessive length of judicial proceedings in Italy CM Interim Resolution DH 2005 114 , which also leads to ineffective protection of a wide range of other substantial rights 10.2. major shortcomings in the judicial organisation and procedures in the Russian Federation, most importantly 10.2.1. deficient judicial review of pre-trial detention, which results in its excessive length and overcrowding of detention facilities CM Interim Resolution DH 2003 123 10.2.2. chronic non-enforcement of domestic judicial decisions delivered against the state CM/Inf 2006 19 10.2.3. violations of the requirement of legal certainty by extensive quashing of binding judicial decisions through the nadzor2 procedure CM Interim Resolution DH 2006 1 10.3. a number of similar systemic problems in Ukraine, aggravated by serious interferences with judicial independence CM Interim Resolution DH 2004 14 . 11. Furthermore the Assembly deplores that the following important and overdue implementation problems, stressed by both the Committee of Ministers and the Assembly, still remain without solution, thus prolonging the situation of non-compliance with the Strasbourg Court's judgments 11.1. in Italy and, to a certain extent in Turkey, the law still does not allow the reopening of domestic criminal proceedings impugned by the Court, while these governments have taken no other measures to restore the applicants' right to a fair trial despite repeated demands to that effect by the Committee of Ministers and the Assembly among many other cases, Dorigo v. Italy and Hulki G nes v. Turkey 11.2. no progress has been achieved as regards the release of two applicants still detained in the Moldovan Republic of Transnistria the case of Ilascu and Others v. Moldova and Russia CM last Interim Resolution DH 2006 26 , Russia in this case claiming that it has no influence in Transnistria, a contention which cannot be taken seriously 11.3. in Greece, no comprehensive plan has been presented to resolve the systemic problem of overcrowding of detention facilities Dougoz and Peers judgments, CM Interim Resolution DH 2005 2 , which has just been highlighted in yet another judgment Kaja v. Greece of 27 July 2006 11.4. the lack of progress towards the solution to the systemic problem of indirect expropriation in Italy, an abusive practice - which is in fact illegal confiscation - conducted by local authorities to the detriment of applicants' property rights under the ECHR 11.5. Romania has reported no progress concerning the ongoing reform of the law on national security or of other related acts in response to the Rotaru judgment CM Interim Resolution DH 2005 57 . 12. The Assembly reiterates that the initial existence of possible objective difficulties, which may well be understood, does not relieve the states concerned from their obligation to overcome these difficulties and resolve without further delay the aforementioned problems, thus bringing their systems into conformity with the ECHR. The prolongation of such situations of non-compliance puts at stake the effectiveness of the ECHR system and should be seen as a breach of the state's obligations under the ECHR and under the Statute of the Council of Europe ETS No. 1 . 13. The Assembly pays special attention to the implementation by the Russian Federation, Turkey and the United Kingdom of judgments relating to abuses by security forces and/or the lack of effective investigation into such abuses. It welcomes progress being made by Turkey and the United Kingdom in remedying underlying structural problems as well as the Russian authorities' willingness to do the same, as demonstrated by the first part of their action plan presented to the Committee of Ministers. The Assembly encourages the Russian authorities to fully exploit the experience of other states and to implement as rapidly as possible judgments concerning action of the security forces, notably in relation to the Chechen Republic. 14. Furthermore the Assembly stresses the continuing obligation of all respondents in the cases referred to in paragraph 13 to remedy specific shortcomings in domestic investigations impugned by the Court in order to provide effective redress to applicants. Conclusive results in this respect remain to be demonstrated by all three respondent states concerned. 15. The issue of Turkey's compliance with the Court's judgments in various fields has in the past called for the Assembly's special attention see Resolutions 1297 2002 and 1381 2004 , and Recommendation 1576 2002 and the overall progress achieved to date in this respect is most encouraging. Many problems revealed by the Court have been successfully tackled, while others require further efforts. Additional progress is, however, notably awaited to prevent new violations of the right to freedom of expression in Turkey, as doubts still remain as to whether the authorities interpret the new provisions in conformity with the ECHR. 16. In addition, Turkey has still to fully implement the Court's judgments regarding the long overdue issue of missing persons in Cyprus as well as that relating to a series of violations of the rights of enclaved Greek Cypriots. The issue of missing persons' property is also a source of concern. The Assembly attaches particular importance to measures adopted or yet to be taken following the Strasbourg Court's judgments, as they should constitute a tangible contribution to a comprehensive solution of the Cyprus issue. 17. The overall assessment of this new exercise by the Assembly indicates that respondent states' lengthy or negligent implementation of the Court's judgments must be given greater political visibility both within the Council of Europe and in the member states concerned. The Assembly therefore considers that it should remain seized of this matter to ensure regular and rigorous parliamentary oversight of implementation issues both at European and national level. The first initiatives taken to this effect by certain national parliaments are encouraging but much still remains to be done. 18. A major reason for difficulties in the execution of the Strasbourg Court's judgments is the lack of effective domestic mechanisms and procedures to ensure the swift implementation of required measures, often needing co-ordinated action of various national authorities. The responsible decision makers in member states often ignore implementation requirements, as set out by the Committee of Ministers, or lack the appropriate domestic procedures to permit effective co-ordinated action. 19. The Committee of Ministers' and the member states' methods and procedures should therefore be changed to ensure immediate transmission of information and involvement of all domestic decision makers concerned in the implementation process, if necessary with the assistance of the Council of Europe. 20. The Assembly notes with interest the recommendation in the 2005 Summit's Action Plan addressed to the Council of Europe's Development Bank to facilitate, through the bank's own means of action, the implementation of policies in areas covered by the ECHR. The Assembly strongly encourages the bank and interested states to avail themselves of this possibility when such action can ensure the rapid implementation of judgments revealing important systemic problems. 21. The Assembly also notes with interest the recent development of the pilot procedure before the Court to address systemic problems. It notes, however, with some concern that this procedure has been conducted in respect of certain complex systemic problems on the basis of a single case which may not reveal the different aspects of the systemic problem involved. Under these circumstances, the pilot procedure may not allow a global assessment of the problem and, since all other related cases are frozen , the risk emerges that this procedure will delay rather than speed up the full implementation of the ECHR. The Assembly also notes that the efficacy of the pilot procedure can only be safeguarded if the Committee of Ministers diligently exercises its competence to assess the adequacy and sufficiency of the implementation measures taken by respondent states. 22. In view of the foregoing, the Assembly 22.1. invites all national parliaments to introduce specific mechanisms and procedures for effective parliamentary oversight of the implementation of the Court's judgments on the basis of regular reports by the responsible ministries 22.2. calls upon the member states to set up, either through legislation or otherwise, domestic mechanisms for the rapid implementation of the Court's judgments, and that a decision-making body at the highest political level within the government take full responsibility for and co-ordinate all aspects of the domestic implementation process 22.3. decides to verify on a regular basis if such mechanisms have indeed been instituted by member states and if they are effective 22.4. urges the authorities of the 13 states concerned to resolve without delay the outstanding implementation problems identified in the report of the Committee on Legal Affairs and Human Rights 22.5. urges in particular the authorities of Greece, Italy, Romania, the Russian Federation, Turkey, the United Kingdom and Ukraine to resolve implementation issues of particular importance mentioned in the present resolution and to give this top political priority 22.6. invites parliamentary delegations of states in which in situ visits were undertaken to present to the Assembly via the Committee on Legal Affairs and Human Rights, within six months, the results achieved in solving substantial problems that have been highlighted in the report or to show the existence of realistic action plans for the adoption of the measures required 22.7. reserves the right to take appropriate action, notably by making use of Rule 8 of its Rules of Procedure namely, challenging the credentials of a national delegation , should the state concerned continuously fail to take all the measures required by a judgment of the Court, or should the national parliament fail to exert the necessary pressure on the government to implement judgments of the Court 22.8. decides to remain seized of the matter and welcomes the Committee of Minister's recent proposals to increase information sharing with the Assembly and to associate the Assembly with the ongoing preparation of a recommendation to member states on efficient domestic capacity for rapid execution of the Court's judgments 22.9. in view of the imperative need for member states to accelerate the full execution of judgments of the Court, decides to continue the regular monitoring of the situation and invites its Committee on Legal Affairs and Human Rights to report back to the Assembly when it considers appropriate. 1. Assembly debate on 2 October 2006 24th Sitting see Docomma , report of the Committee on Legal Affairs and Human Rights, rapporteur Mr Jurgens . Text adopted by the Assembly on 2 October 2006 24th Sitting . 2. Supervisory review procedure.