30.05.2006
Minutes of Meeting between Court and organisations representing
applicants and/or intervening as third parties
10 April 2006, Strasbourg
Session I
The President of the Court, Mr Wildhaber, opened the meeting and
welcomed the participants. He expressed his satisfaction at the
opportunity for the members of the Court and the Registry to engage in
dialogue with the representatives of the organisations present, whose
experience as advocates or interveners in proceedings made their views
on questions of practice and procedure especially valuable.
Rules of Court
Judge Costa observed that the meeting was intended to allow
participants to express their views on the Rules of Court, as the
Government Agents had done at the meeting of November 2005. The Rules
Committee planned to consider in the coming weeks the comments and
proposals made at both meetings. He briefly presented the most recent
changes to the Rules, such as changes in the composition of the panel
of the Grand Chamber, which now had a greater rotation of judges, and
of the Grand Chamber itself when hearing cases referred under Article
43 (Rule 24), as well as revised procedures for the election of the
president and section presidents, which were more open and transparent
(Rule 8).
He also noted that further changes and additions would be needed to
take account of Protocol No. 14 regarding points such as the
functioning of the single judge and the rapporteurs, the new Committee
competence, the possibility of reducing the size of Chambers, the
selection of ad hoc judges, the role of the Council of Europe's
Commissioner for Human Rights, and the modalities of the new
interpretative and infringement proceedings.
Other matters under consideration by the Rules Committee were data
protection, the procedure for granting legal aid and the electronic
filing of documents.
The representative of the Committee on the Administration of Justice
raised a question concerning excessive delay in the implementation of
a judgment of the Court by a Member State.
Judge Costa replied that the task of the Rules Committee was to draft
the rules that would govern the new procedures. Recourse to these
procedures would be at the discretion of the Committee of Ministers.
Nonetheless, through the pilot judgment procedure and the inclusion of
clearer indications in judgments as to the execution measures needed,
as well as close working contacts with the Department for the
execution of judgments, a positive dialogue had been developed between
the Court and the Committee of Ministers on this matter, and this
would continue. State compliance with judgments of the Court had
improved in recent times.
The representative of Amnesty International asked what the role of the
applicant would be in the new Article 46 proceedings. She referred to
the fact that the Steering Committee on Human Rights (CDDH) had
approved changes in the Committee of Ministers' rules in this respect.
Judge Costa remarked that, under present arrangements, the applicant's
role at the execution stage was essentially passive, although, as
happened in Mehemi^, an applicant could take the initiative by
submitting a new application to the Court. While he could not predict
what role the applicant would acquire in the new proceedings, it could
be assumed that they would be able to participate in some way, and
that their standing might well increase as practice developed.
The representative of the Aire Centre enquired as to the possibility
of the Court issuing a practice direction on just satisfaction.
Lawrence Early replied that information and guidance contained in the
standard letters sent by Registrars during the proceedings were
sufficiently clear and comprehensive in this regard. Nonetheless,
consideration could usefully be given to the preparation of a practice
direction.
A representative of Movimento por la paz observed that in some cases
the mere payment of compensation could not be seen as an adequate
remedy, e.g. where a person's trial had been deemed unfair, the only
satisfactory remedy was a fresh trial. He urged the Court and the
Committee of Ministers to press for the possibility of re-opening
proceedings.
Judge Costa observed that this went beyond the Rules of Court. Even if
states were willing to execute judgments, there had to be some basis
in domestic law for re-opening proceedings. This was more complicated
in civil proceedings as opposing private interests were at stake.
While the Court had stated that the best way to address violations of
property rights was restitutio in integrum, this was difficult if a
third party had acquired the property in good faith. He referred to
the judgment in Brumrescu^, where the Court held that if this was
impossible, full compensation had to be paid.
The representative of Unione forense asked about the possibility of
amending Rule 39 after the Mamatkulov^ and Aoulmi^ cases to take into
account the binding nature of interim measures, and suggested
harmonising the Court's approach with that of other international
systems, i.e. the Inter-American system and the African system^.
Judge Costa recalled that the Court in Mamatkulov had decided as a
matter of case law to revise its original stance on the nature of
interim measures. As the point appeared on the agenda for Session II,
he preferred to leave the question until then.
A representative of the Bulgarian Helsinki Committee suggested that
the Court adopt a general procedure whereby if a violation was found
by the Court, in subsequent similar cases the onus would be on the
state to show that it had brought its legislation and practice into
line. Failure to discharge this onus would suffice to find a violation
of the Convention.
Judge Costa noted that in certain respects the Court already followed
this practice, for example in cases relating to length of proceedings
in Italy and other states to which it had applied the Kuda^ case law.
This had led a number of States to enact specific legislation in this
area so as to be in conformity with Articles 6 1 and 13.
The previous speaker pursued the point by referring to the fact that,
despite the Court's ruling in the Al-Nashif^ case, there was still no
possibility of appeal for persons subject to a deportation order from
Bulgaria.
Judge Costa indicated that the Court would take note of the matter for
further study.
The representative of the Irish Human Rights Commission stated that it
would be helpful if the Court could be as specific as possible
regarding the changes in law and practice necessitated by a finding of
a violation of the Convention.
The President responded to this last remark, observing that the
traditional approach had been to rule first and foremost on the facts
of the case, giving some general guidance at the same time regarding
the broader issues of principle at stake. The Court was increasingly
conscious of the possibility of being more specific regarding the
latter.
Preparing for Protocol 14
Judge Rozakis gave an overview of the work of the Committee on Working
Methods in the light of Protocol No. 14. It was reviewing possible
changes that could take effect straight away, as well as the changes
that would be effected by the Protocol. The Committee was also looking
at possible policy choices for the longer term.
Regarding the single-judge formation, the thinking was to assign 20
judges to this function, supported by rapporteurs, who would be drawn
from among Registry lawyers at A2/3 level, a grade that implied
sufficient knowledge and experience of the Convention system. Some
filtering would still be done by Committees, to which borderline cases
could be referred by the single judge.
New working methods based on the Rapporteur mechanism had already been
introduced in the legal divisions dealing with the highest number of
applications and were proving successful.
The Committee had given consideration to the type of cases to which
the new admissibility criterion (Article 35 3b) might apply, although
it would not be making any specific recommendations on this point,
which would be reserved to the Chambers and Grand Chamber for the
first two years of the operation of the Protocol. Other changes
included delineating repetitive cases for Committees and creating
templates for summary judgments. Finally, the Registry was setting up
a just satisfaction division to advise and assist Chambers on the
application of Article 41.
A representative of Bulgarian Lawyers for Human Rights remarked that
as her organisation chose carefully the cases they brought before the
Court, they were especially interested in the manner in which the
procedural track was chosen for a particular application. She stated
that some cases that appeared to be essentially the same as previous
Chamber cases had nevertheless been dismissed by a Committee and there
was no way of knowing the reason for this. She suggested that it would
be beneficial for applicants and their lawyers if the Registry could
communicate to them the brief statement of facts and law that served
as the basis for the single judge's decision to reject as
inadmissible, and that an indication, however brief, of the reasoning
would provide valuable guidance in the choice of future cases, as well
as maintain the confidence of applicants that their cases had been
duly considered by a judge. Lastly, she sought clarification on the
mechanism for selecting pilot cases.
Judge Rozakis stressed that the system included safeguards on several
levels. The single judge would exercise due caution in every case, and
would not hesitate to refer an application to a Committee or Chamber
for decision. As for the suggestion to communicate to the applicant
the summary report written on their case, the Court would give
consideration to it. He acknowledged that in some Bulgarian cases
there had been very long delays, attributable in part to a lack of
capacity on the Government's part to deal with the volume and
complexity of the work. This had improved recently however.
The representative of the Aire Centre described the possible
mystification caused by the disposal of an apparently meritorious
application by a Committee^. She suggested that there were two
situations in which it could be considered appropriate for a case to
be rejected by a Chamber rather than a Committee: first, if an
application that appeared to be a "clone" case was nonetheless
rejected, the giving of reasons was desirable; second, if superior
courts asked for guidance from Strasbourg on a certain point, it would
be unfortunate to miss the opportunity by directing a case to a
Committee.
Judge Rozakis stated that the Government Agents had made a similar
request for more information on the reasons behind Committee
decisions, but this was simply not feasible given that the number of
cases pending was approaching 100,000. Nevertheless, he took note of
the suggestion of the previous speaker. As for the rejection of cases
that appeared to be "clones", he considered that on closer examination
by the Court the problem of inadmissibility must have been detected.
A representative of the Lawyers Association for Human Rights in
Moldova asked about the follow up to the recommendations made in the
Woolf report.
Judge Rozakis said that some of the recommendations had already been
implemented or were in the process of implementation (e.g. Fifth
Section, Jurisconsult). Others, such as taking a stricter view of what
constitutes an application, were being studied. In particular, the
proposal for satellite offices of the Registry called for very
thorough analysis. He considered that the function of providing
information to the public was more within the competence of the
Council of Europe. Decentralising the case-processing function to
selected capital cities would be difficult. The Court had not yet
finalised its response to this part of the report.
The representative of Interights voiced the concern that an inflexible
attitude to the formal presentation of an application could render the
Court inaccessible to persons in very difficult circumstances. As
regards satellite offices, he cautioned that these would need to be
secure from influence from the host national authorities and their
task should not just be about keeping statistics down. He asked how
these reforms would relate to the work of the Wise Persons and whether
NGOS would have any input into the process.
Judge Rozakis replied that a sub-committee had been set up to look at
Lord Woolf's specific recommendations relating to applications and
that, at this stage, it was too early to draw any conclusion.
Responding to the concern as to inflexibility, he stressed that the
Court, like the Commission before it, made allowance for the difficult
circumstances in which some applicants found themselves, e.g.
prisoners, and that this would not change. He observed generally that
the fundamental dilemma was how to maintain the individual application
system in the face of huge and mounting pressure. Protocol No. 14 did
maintain this feature of the system, although at the price of some
inevitable procedural compromises.
Joint Procedure - Article 29 3
Vincent Berger outlined the development of the joint procedure, its
beginnings in 2003 as a means of dealing more efficiently with simple
cases through to the present situation where the Court used it widely.
By merging two procedural stages into one, it cut the time needed to
process the case by a year. In general, Governments had no objection
to the procedure. In any event, if a case presented a serious issue of
admissibility, the Government could always raise a valid objection to
the use of the joint procedure. One complaint from some Governments
was that there was no second opportunity to make submissions on the
merits. The Court's response was to allow Governments seek leave to
make such submissions. It could be thought that the Court was
anticipating the entry into force of Protocol No. 14, which will amend
Article 29 so as to make joint procedure the rule, but the Court had
adopted the practice well in advance of the adoption on the Protocol.
Although the gains made from using the procedure might appear slight
in the context of the backlog, he recalled that most cases were
rejected at an earlier stage and so were not affected by it anyway.
But for those that progressed to judgment, the majority of which were
clone cases, the joint procedure had an appreciable impact on the time
required to take the file through the system.
A representative of the Bulgarian Helsinki Committee returned to the
question of regionalisation of the Court, signalling her opposition to
it as it could lead to fragmentation and different standards across
Europe.
The President assured the speaker that the Court would not allow any
weakening of the standards of the Convention.
Interim Measures
Sally Doll outlined the operation of Rule 39, which was applied
principally in cases taken under Articles 2, 3, 8 or occasionally
Article 6, as in calan^. Indications under Rule 39 were binding
following Mamatkulov, a development that had been accepted by States.
If a request for the interim measures was denied, the Court could
still notify an application urgently to a State (Rule 40), and/or give
it priority on the docket (Rule 41). Interim measures were in fact
rarely indicated - in just 49 cases in 2005, out of 453 requests.
Typically, Rule 39 was applied to postpone the deportation or
extradition of a person whose removal to their home state would place
them in serious danger. The Court sought to evaluate the political
situation in the country concerned on the basis of UNHCR, Amnesty or
HRW reports. Certain countries were clearly hazardous, such as
Somalia, Eritrea and Iraq, although each individual case was
considered on the basis of all the relevant information available. As
for fitness to travel, the Court considered medical evidence of
suicidal tendencies or whether the person was in the final stages of a
fatal illness and so on. Other risks, such as those posed by third
parties, could be taken into account. Interim measures could be lifted
once the threat of imminent harm had receded, or adequate guarantees
of access to the applicant by lawyers or consular officials had been
received. The efficacy of assurances given by a receiving State was a
delicate subject, of primary importance nevertheless. However, she
referred to the fact that the Russian authorities had not honoured
certain undertakings given to the Court in the Shamayev case, which
might make the Court wary of accepting such assurances in future. The
Court was flexible regarding the form in which Rule 39 applications
were made: faxes, telephone calls, letters etc., and even if they did
not in so many words request interim measures.
She referred to the practical difficulties of responding to desperate,
last-minute applications requiring immediate consideration and urgent
contacts with national authorities. She described the in-house
procedures for dealing with such applications, which could be granted
within half an hour. At the meeting with Government Agents, the Court
had requested that they ensure there were permanent channels of
communication between the Court and the different parts of national
administrations likely to be concerned, such as the immigration
authorities and the police. The nature of the interim measure
indicated depended on the case (a stay of deportation, providing
necessary medical care to the applicant). Interim measures were not
exclusively addressed to the Government - the Court had indicated to
applicants on hunger strike that they should cease their fast.
A representative of Movimento por la paz referred to the problem of
mass illegal immigration in Spain and Italy and the speed with which
immigrants were removed from the territory by national authorities,
with no time to make an application under the Convention. He also
described the problems faced by lawyers in the states of the former
Yugoslavia, whose freedom of movement was often restricted, thus
obstructing their work on behalf of potential applicants.
Ms Doll recalled that States retain full control over immigration
policy. Only in very exceptional cases would the Convention ground a
right to enter a country and reside there. Regarding the problems
faced by lawyers, she considered that while there might possibly be an
Article 34 argument to be made, it was difficult to see how the
Convention could be of assistance. Looking to the future, it was
possible that the Court would take a more robust approach to interim
measures.
The representative of Interights asked whether the scope of the
measures could be expanded to other areas of the Convention, e.g.
destruction of evidence or intimidation of witnesses. He asked
whether, where a State has not complied with an interim measure, the
Court might consider finding it in breach not just of Article 34 but
also of the substantive provision at issue. Finally, he asked whether
in pilot cases there was scope for interim measures when pending cases
were adjourned.
Ms Doll answered that the scope for expanding the application of Rule
39 would depend on applicants themselves bringing such applications.
As for failure to comply with the measures indicated in a case,
whether this would also justify the finding of a substantive breach
would depend on the evidence adduced. Concerning pilot judgments, she
recalled that a key feature of the procedure was the adjournment of
pending cases. Framing an interim measure in such cases would not be
easy, but was not to be excluded.
A representative of the International Protection Centre referred to
the potential importance of the Rule 40 procedure. She added that
certain of her requests for priority under Rule 41 had gone
unanswered. What should she do if this occurred again?
Ms Doll replied the requests should have been answered, and that
lawyers should not hesitate to press for an answer if none is
forthcoming.
The representative of Unione Forense returned to the question of joint
procedure and asked whether applicants could be granted the right to
reply to the Governments' observations on the file, especially if new
arguments had been raised. He also asked about the possibility of
giving reasons for the refusal to indicate interim measures, as well
as of publishing the list of cases where measures had been indicated.
Mr Berger replied that there was a danger that the parties' replies to
each other's submissions could go on for too long. It was appropriate
that the last word in the procedure should be for the Government, it
being the respondent.
Ms Doll stated that giving reasons for the refusal of interim measures
would represent a considerable burden on the Registry. As for a list,
it was in principle possible to identify in HUDOC the cases in which a
request for interim measures had been granted or denied.
A representative of Bulgarian Lawyers for Human Rights asked if Rule
39 could be applied where prisoners were being intentionally placed in
dangerous and deplorable conditions without adequate medical help. She
saw the risk in such cases as being more certain than in deportation
cases.
Ms Doll replied that the Court did look at those kind of cases and has
applied Rule 39 in this context but emphasised it was not the role of
interim measures to bring about general improvements in prison
standards.
Mr O'Boyle spoke of an evolution in the application Rule 39 to areas
such as threats to the life of those in detention. The facts would
need to be substantiated, though, since allegations were easy to make.
He described the Rule 39 procedure as providing space for dialogue and
interaction between the Court and the respondent Government, giving
the example of an application on behalf of a comatose prisoner in
Moldova. The intercession of the Registrar was directed to securing
access for the lawyer to the applicant without formal measures being
indicated. Finally, he emphasised that the purpose of Rule 39 was to
avoid irreparable harm.
Session II
Just satisfaction
Lawrence Early remarked that applicants often claimed disproportionate
sums by way of compensation. As for the procedure to be followed, Rule
60 of the Rules of Court was clear. It was incumbent on the applicant
to claim compensation in the right way at the appropriate time. Since
just satisfaction was not an issue of public policy, the Court would
not examine it of its own motion. He referred to the question asked
earlier by the representative of the AIRE Centre about a Practice
Direction on just satisfaction, which was a suggestion that could be
examined by the Court. He reiterated that the standard letters sent to
the applicant were clear. He commented on the types of award available
under Article 41. With compensation for pecuniary loss, it was vital
to show causation. Some commentators were critical of a certain
opacity in the Court's approach, but the Court was guided more by
equitable considerations than by precedent in this area. Regarding
costs, he recalled that only those costs that were actually and
necessarily occurred and were reasonable as to quantum would be
awarded. The recommendation of Lord Woolf to publish Article 41 tables
and scales was under consideration. The recommendation to have a
dedicated just satisfaction division had already been accepted. He
referred to the recent trend in case law to look further than mere
compensation and indicate particular remedial measures (restitution of
property, retrials). He concluded with a reminder that Article 43
applications that were based only on dissatisfaction with the level of
compensation awarded by a Chamber were never accepted.
A representative of Stichting Russian Justice Initiative asked why her
claim for necessary costs, in particular translation and communication
costs, had been denied.
Mr Early replied said he could not comment on the particulars of a
given case. In principle, though, such costs could be claimed.
The representative of the Aire Centre recalled the former practice of
reserving just satisfaction, which could be take up again to some
extent. She also asked how useful the Grand Chamber judgment in the
recent Scordino^ case could be outside of the immediate context of the
Pinto law.
In his reply, Mr Early stressed the difference between the new Article
41 unit, which would undoubtedly be very useful to the Court, and
reserving the Article 41 portion of judgments, which would, in current
circumstances, quickly lead to bottlenecks. As for Scordino, it
contained general guidance for courts everywhere, although there would
be different scales for different countries.
Judge Bratza added that the former practice of reserving just
satisfaction worked because there were few cases at that time. It was
no longer viable. It was still necessary in some cases, such as the
recent Pye^ case, but these were exceptions.
A representative of the Bulgarian Helsinki Committee for Human Rights
asked that the Court, when awarding costs of representation by NGO
lawyers, bear in mind the scarcity of their resources and the fact
that they have to be selective and strategic in their litigation. NGOs
bear the financial risk of litigation for years until judgments are
given and urged a more liberal approach by the Court.
A representative of Bulgarian Lawyers for Human Rights stated that
NGOs tried to select the most appropriate cases and to make realistic
claims under Article 41. She expressed concern at the practice of
linking the level of award to the respondent State's GDP. A lower
award meant less pressure on the Government to introduce the necessary
reforms, which encouraged repetitive violations. She also expressed
concern that in some cases the Court had not accepted the standard
hourly rates for Bulgarian lawyers.
Mr Early replied that the Court was still reluctant to order
consequential measures in order to promote necessary reforms at
domestic level. There had been some recent developments in this
regard, especially the use of the pilot judgment procedure, but it was
important for the Court not to stray into the domain of the Committee
of Ministers. On the question of the award of costs in particular, he
preferred to take note of the matter.
Judge Bratza stated that it was extremely difficult to adjust for
living standards and the Court seemed to be criticised by governments
and applicants whatever it did. He noted that in the past the Court
had awarded increased compensation in Italian length of proceedings
cases, but this was not a particularly effective means of bringing
about reform. The introduction of the Pinto law meant that lesser
amounts of compensation were permissible. A much more effective means
of influencing change was the pilot judgment procedure, although both
sticks could be used on occasion.
The representative of Amnesty International felt that applicants were
not properly informed of their possible continuing role in the
proceedings once the judgment went before the Committee of Ministers,
and suggested that this could be better explained at the time the
judgment is sent to them. The same applied to the role of NGOs at this
stage in the procedure. She also suggested that the Court include an
interest clause in friendly settlement.
Mr Early replied that it was standard procedure to insert in friendly
settlements a clause that if the sums were not paid within three
months of the decision, interest would accrue. The same was true of
friendly settlements before admissibility. On the other point raised,
he thought that the standard letters send to governments and
applicants were quite clear on what happened next, but if participants
felt they were lacking clarity, the Court would be willing to consider
making them more explicit in this regard. He referred to the new
Article 46 procedures envisaged by Protocol No. 14, in which it would
be natural for the Court to have regard to the applicant's view, at
least in infringement proceedings.
Third party interventions
Michael O'Boyle stated that the Court had a rather liberal practice
towards third party interventions in keeping with the explicit mention
of third parties in Article 36 of the Convention. In most cases where
the procedural requirements as set out in Rule 44 were satisfied, the
Court's Presidents were prepared to grant permission to intervene. He
discussed a number of significant cases where numerous third party
interventions had taken place including the McCann^ case and
Mamatkulov. He referred to four types of intervention: interventions
by the Government of a national who is a part to the proceedings,
Article 36 (1) conferring a right on such States to intervene and file
observations; by a Government when it has an interest in the case
(e.g. the Kleyn^ case); classic cases involving NGOs; and individuals
with an interest in the case (e.g. the T.^ case or Perna^). He also
noted the possibility of a fifth type - the Commissioner for Human
Rights once Protocol No. 14 took effect.
In practice, would-be interveners must make a reasoned request to the
Chamber President, showing how its intervention would be in the
interests of justice. There were no published criteria on this, which
remained at the discretion of the presiding judge. As a 3-week
deadline was applied, along with a limit of 10 pages; interventions
had to be concise and to the point. A reasonable number of appendices
could be added. It was recalled that these are sent to the parties for
comments. It was important that third parties should not seek to widen
the issues in the case. He saw an advantage in grouped submissions by
NGOS to avoid repetition by them. Third parties should not repeat
complaints or deal directly with the admissibility or merits, which
was a matter for the parties in most cases. The value of third party
interventions lay in, for example, providing a comparative law
perspective or an overview of relevant UN instruments (Resolutions and
Declarations) or providing the Court with information drawn from the
NGO's own experience and expertise. In deportation cases, reports on
the country an applicant was being sent to could be helpful.
Finally, as regards the Commissioner, given his enhanced standing, it
could be envisaged that he would take account of the views of civil
society in deciding when and how to intervene once Protocol No. 14 had
come into force. There could be some role for NGOS in suggesting when
it would be appropriate to intervene and providing him with
comparative material.
The representative of the Northern Ireland Human Rights Commission
asked whether there could be special recognition by the Court of the
particular nature and function of national human rights institutions
and ombudsmen.
Mr O'Boyle replied that while there was no special recognition at the
present time, national institutions might consider making a joint
submission to the Court along these lines.
A representative of the Open Society Justice Initiative described
difficulties encountered by NGOs who sought to intervene before the
Court. There seemed to be unclarity and inconsistency between Sections
as to the correct moment to apply. Getting information about
communicated cases in sufficient time to consider intervening was
problematic, as were the time constraints, especially for NGOs based
far from Strasbourg, and the limit to the length of submissions.
Mr O'Boyle responded that some of the communicated cases were in the
case law information notes but more needed to be done. It should be
possible to make a selection available on the Court's website every
week. He did not think the Court could relax either the deadlines or
the page limit, given the huge pressure it was under.
Roderick Liddell stated that one idea was to put a list of
communicated cases on the Court's website which could be updated on a
weekly basis. The list would give the names of the cases and a very
brief indication of their subject-matter.
The representative of the AIRE Centre said that it should be fairly
evident to those familiar with Convention law which cases were of
potential significance. As they were aware of the pressure on the
Court and the Registry, it would be sufficient for the data to be made
public, and NGOs could sift through it regularly.
The representative of Human Rights Watch suggested that where NGOs
made a joint submission, a longer time limit would be appropriate.
Mr O'Boyle agreed that this could be appropriate, but at the same time
he emphasised that only interventions that would really assist the
Court would be permitted. He gave the example of a Polish case
concerning abortion in which many requests to intervene were rejected.
A representative of the Open Society Justice Initiative asked about
access to case files, ideally online, and, especially, access to
government memorials.
Mr Liddell replied that in principle all files were public, but could
only be consulted on the premises of the Court. There were issues of
confidentiality which made it difficult to make available all
documents in the case file via the internet, but a start could be made
by putting parties' written submissions in Grand Chamber cases
on-line.
The representative of the Aire Centre stated that this would be
advantageous not just for potential third parties but for many more
individuals and groups around the world, in particular for those
seeking to inform others in other jurisdictions.
Pilot judgment procedure
Roderick Liddell began by stating that discussion of the Court's
adoption of the pilot judgment procedure reflected the interlinked
nature of the problems facing the Convention system: repetitive cases,
just satisfaction, proper execution of judgments, interim measures
etc.. The procedure could therefore be seen in one sense as a
collateral effect of Protocol No. 14. The Court had previously been
slow to identify structural violations of the Convention, until its
Bottazzi^ judgment in 1999 in which it formally recognised the
structural nature of the problem of excessive length of proceedings in
Italy, although it did not indicate any remedial measures to the
Government.
In the discussions on Protocol No. 14, the Court had proposed the
inclusion of a new Convention provision on pilot judgments, but this
did not win support in the CDDH. The experts considered that the Court
could proceed on the basis of the existing text of the Convention,
which it accordingly did, having regard also to Resolution 2004(3) of
the Committee of Ministers on judgments revealing an underlying
systemic problem.
The first pilot judgment was the Broniowski^ case, in which the Court
identified the nature and scope of the structural problem, pointed to
the need for general measures, which should be retroactive, and
adjourned all similar cases to give the Government the time to take
appropriate general measures along the lines suggested by the Court.
Broniowski was a resounding success in this respect, potentially
resolving a huge category of claims in a single judgment. Central to
this success were the facts that the type of problem lent itself to
the pilot judgment approach, and the willingness of the Government to
try the new approach.
Subsequent pilot judgments, which differed in certain respects from
Broniowski, showed that the procedure was still finding its way. It
was normal that different types of problem (e.g. endemic or systemic)
led to differently-structured judgments (e.g. more or less precision
in the indications to States as to the measures required, adjournment
or not of similar applications). While some saw the procedure as a
move away from individual justice towards a constitutional court
model, he considered that the Court's motive was essentially
pragmatic.
The Court hoped to see an accelerated execution process before the
Committee of Ministers. The possible role for NGOs in this procedure
was to help identify groups of suitable cases. They could seek leave
to intervene on the question whether or not a group of cases was
suitable for the pilot judgment procedure, and could perhaps also have
a role in the execution process.
A representative of Stichting Russian Justice Initiative enquired as
to the possibility of using the pilot judgment procedure for
disappearance cases in Chechnya.
Mr Liddell replied that it should not be ruled out, especially if the
procedure could afford a degree of protection to individual applicants
that other procedures could not.
Mr O'Boyle remarked that the categories for pilot judgments are not
closed. It would usually be in the field of potential problems with
legislation but he would not exclude that the Court could apply it to
administrative practices of torture or disappearances. If such
policies were approved at the highest levels of the state then it
would be conceivable.
The same speaker asked whether, in a situation where many people were
affected, it would be better to file a test case or an individual
application for each person.
Erik Fribergh replied that it would be necessary to identify all such
persons to the Court.
Judge Bratza stated that the better option was to file on behalf of
every individual concerned. If the Court decided to apply the pilot
procedure, it would adjourn the other cases if appropriate.
The representative of the Aire Centre asked about the series of
inadmissibility decisions that began with the Icyer^ case.
Mr Berger recalled the Court's finding in the Doan^ case (which was a
pilot judgment in all but name) that none of the various remedies
available to persons driven from their homes in South-eastern Turkey
was effective for the purpose of Article 35. Following legislative
amendments in Turkey, the Court was able to revise its position in the
Icyer decision, which was a good example of the Court's pragmatic
approach, and the flexibility of the pilot procedure.
The representative of Interights raised two points. The adjournment of
similar cases should not be indefinite, and an applicant with a case
that is materially different from the pilot case should be able to
proceed on an individual basis.
Mr Liddell responded that the Court was following closely developments
in Poland after the Broniowski case. The Polish government had
indicated a willingness to accelerate settlement of pending cases. In
the event of execution difficulties in the pilot judgment procedure,
the Court might issue a second pilot judgment, or move rapidly to
adjudicate the adjourned applications (something which, under Protocol
No. 14, would be done by Committees).
Mr O'Boyle observed that to date there had been a high level of
co-operation from the states concerned, with Poland even suggesting
cases for the procedure. While either party to a case might want it to
proceed in the traditional manner, it was for the Court to decide
whether the pilot judgment procedure was appropriate, in which case
the wish of the individual would yield to the broader interests at
stake.
A representative of Bulgarian Lawyers for Human Rights raised a series
of questions about the procedure and its possible application to
Articles 2 and 3 cases, which she considered would be problematic. She
referred to recent legislative changes in Bulgaria that had actually
made the situation regarding investigation of alleged police brutality
worse. This would be a situation in which certain characteristics of
the procedure would be detrimental to the applicants. She asked about
the criteria that guided the Court's choice of case to be the pilot,
and the stage at which this was made.
Mr Liddell replied by stating that the procedure was still in its
early days. It would not normally apply to Article 2 or 3 cases. There
was as yet no mechanism, so to speak, for identifying possible pilot
cases. The parties could express a view on it, as could the
Commissioner and, perhaps, NGOs that had been granted leave to
intervene. Issues such as these would be gradually resolved as the
procedure developed over time.
Other points raised by participants
The representative of Liberty asked whether the Court could indicate
on its website the cases in which there had been a request to
intervene, whether from an NGO or a Government. For example, if the
British Government were to seek leave to intervene in a case involving
another country, British NGOs would also like to know about this.
Mr O'Boyle replied that it should be possible to follow up this
suggestion.
A representative of Interights raised a point about investigative
measures and evidence before the Court when facts are in dispute but
certain information is in the Government's possession. It can be very
difficult for the applicant to substantiate his case in such
circumstances. The Court might consider expanding investigative
measures beyond Articles 2 and 3 or alternatively adopting a more
flexible approach to evidence, e.g. alleviating the burden of proof.
Also, adverse inferences against Governments currently drawn under
Article 3 in relation to ill-treatment in police custody might be
expanded to other Convention provisions.
Judge Bratza replied that a more flexible approach in certain cases
was desirable. He referred to his partially dissenting opinion in
Mamatkulov, in which he had argued that the Government, having failed
to comply with the interim measure indicated by the Court, should not
have been permitted to then argue that the applicants had failed to
prove to the necessary standard that they risked ill-treatment in the
receiving state. He considered that the Court should be more willing
to afford the applicant the benefit of the doubt than in the past.
Mr O'Boyle stated that investigative measures were exceedingly
onerous. However, where they were ordered, the applicable rules^
allowed for assistance from third parties, which opened up the
possibility of a co-operative role for NGOs.
A representative of the Open Society Justice Initiative asked about
the work of the Committee of Wise Persons: procedure, timetable and
opportunities for NGO input. He further expressed his appreciation for
the meeting, which he described as an extraordinarily useful event,
one that he hoped would be staged again in due course.
Mr Fribergh said that the interim report of the Wise Persons was due
in mid-May, with a final report at the end of the year. Amnesty
International and the Aire Centre had already presented submissions at
the beginning of February. Any other association that wished to make a
submission should go through the Committee's contact person at the
Council of Europe, Mr Patrick Titiun.
The representative of Amnesty International explained that four NGOs
had sent a joint submission to the Committee, which had replied that
while it did not plan to hold a hearing, it would consider written
submissions after the publication of the interim report in May. The
four NGOs would therefore co-ordinate the civil society response,
ensuring that the voice of the applicant was heard in the process.
A representative of the Bulgarian Helsinki Committee reiterated
concerns over the single judge formation.
Mr Fribergh answered that note had been taken of this viewpoint, but
referred to the comments of Judge Rozakis earlier in the day on the
various safeguards in the system.
The other representative of the Bulgarian Helsinki Committee suggested
that greater transparency would offset any perceived risk with the
disposal of cases by a single judge assisted by rapporteurs, with the
publication of a very summary note on each case.
Mr Fribergh stressed that the purpose of the single judge procedure,
which will apply only to clearly inadmissible cases, was to free up
judicial time for more demanding applications.
A representative of FIDH suggested that rapporteur notes be made
public.
Mr Fribergh replied that, given the tenor of such documents, this was
not possible.
Concluding remarks
Mr Fribergh brought the meeting to a close by thanking all
participants for their comments and suggestions during the day. He
envisaged another meeting along similar lines in 2008. A summary
record of the day's discussions would be made available in due course.
^The original case is Mehemi v. France, judgment of 26 September 1997,
Reports of Judgments and Decisions, 1997-VI. The second case is Mehemi
v. France (No. 2), no. 53470/99, ECHR 2003-IV.
^Brumrescu v. Romania (just satisfaction) [GC], no. 28342/95, ECHR
2001-I
^Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99,
2005-...
^Aoulmi v. France, no. 50278/99, 17 January 2006
^A reference to Article 27(2) of the Protocol establishing the African
Court.
^Kuda v. Poland [GC], no. 30210/96, ECHR 2000-XI
^Al-Nashif v. Bulgaria, no. 50963/99, 20 June 2002
^She referred to the House of Lords decision of 8 March 2006 in the
Kay and Leeds City Council cases, part of which concerns the
significance of the rejection by a Committee of an application under
Article 8 by a Mr Qazi against the United Kingdom.
^calan v. Turkey [GC], no. 46221/99, ECHR 2005-...
^Scordino v. Italy (no. 1) [GC], no. 36813/97, ECHR 2006-...
^J.A. PYE (Oxford) Ltd v. the United Kingdom, no. 44302/02, ECHR
2005-...
^McCann and Others v. the United Kingdom, judgment of 27 September
1995, Series A no. 324
^Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98,
43147/98 and 46664/99, ..., ECHR 2003-VI
^T. v. the United Kingdom [GC], no. 24724/94, 16 December 1999
^Perna v. Italy [GC], no. 48898/99, ECHR 2003-V
^Bottazzi v. Italy [GC], no. 34884/97, ECHR 1999-V
^Broniowski . v. Poland [GC], no. 31443/96, ECHR 2004-V
^Icyer v. Turkey, no. 18888/02, decision of 12 January 2006
^Doan and Others v. Turkey, nos. 8803-8811/02, 8813/02 and
8815-8819/02, ECHR 2004-...
^See Annex to Rules of Court concerning investigations, Rule A1.
[#1664975]
2
4
Добавить комментарий: