Course 6

Question 1

Where starts the 6 months delay?

Answer 1

• Starts with the final national decision. Still 6 months now but will go down to 4 months.

Question 2

How strict is the court wrt admissibility issues?

Answer 2

• Court is becoming more and more strict: art. 47 on website of the court: follow the instructions:
• If you fail admissibility requirements = strict liability because you either complied with them or you did not  not an obligation of means.
• If you lose a case on the grounds, on the merits: it won’t be for your professional liability because there is a margin. This margin is not there with non-filing an anonymous application or providing a necessary document.

Question 3

What are interim measures?

Answer 3

• Rule 49: interim measures from the Rules of Court: very technical. Summary, intermediate summary procedure because there is a huge backlog of cases so if you need an immediate solution: cases of expulsion or deportation; torture or ill-treatment.
• Situations where you ask the court for interim measures to give the injunction to the domestic authorities to freeze the procedure. Ask the state not to extradite a person as long as the case is pending at Strasbourg.

Question 4

Where is art. 49 most used with?

Answer 4

• Art. 49 is not limited to a couple of provisions but it is mostly used with:
• Article 2: the right to life.
• Article 3: the right no to be tortured or subject to ill-treatment and degrading treatment.
• Sometimes: art. 6: right to fair trial: it can be until the judgement by the court is delivered.

Question 5

What is states do not respect rule 49?

Answer 5

• Violation of art. 34 = right to file your individual application.
• Boils down to the idea if you are in a certain circumstance, that the merits of your case should not be irremidiately impacted by behaviour of the state that make that the final outcome of a judgement delivered by the Strasbourg court becomes pointless.
  
  • The authorities should not have taken your house, but now it is lost and we can only give you monetary compensation = not an ideal situation.
• These cases depend on the goodwill of states.

Question 6

What is the Trabelsi case?

Answer 6

• Trabelsi v. Belgium: someone who was involved in terrorism: link with the US:
• The US wanted to extradite this person and trial him in the US. According to the applicants: that would have led to violations of human rights. He loses in Belgian Court and he goes to Strasbourg, begging for interim measures as long as the case is pending.
• He obtains the interim measures = injunction by the Strasbourg but at a certain moment: Belgium still extradites him = act of bad faith and disrespect to the court.
• Sanction applied to the Belgian State if you do not respect rule 39: you will have to pay for it.

Question 7

What is the tragic/problematic part of behavior of states when they do not comply with rule 49?

Answer 7

1. First: rule of law.
2. Second: you do not accept authority of court anymore = lack of fair play which goes beyond the individual case = problem of credibility. There is already a de facto unequal relationship: individual against state party so it is important for the states to have a good relationship with the court = good faith relationship.
3. Watch out for the long term detriment by losing your creditability because it can be incredibly hard for a state to prove everything they did: states will need to benefit from the fact that the Court says: if you say so and the applicant is not contesting it, it will be like that.

• Advise: respect the convention, the mechanism = great service to your own credibility.

Question 8

What are the 4 scenarios when it comes to the court of Strasbourg?

Answer 8

• Huge number of cases are found inadmissible: only 5% are found admissible. Backlog of 150.000 cases before, now about 50.000.

1. Single judge acting
2. Committee of 3 judges acting
3. Chamber of 7 judges
4. Grand Chamber of 17 judges

Question 9

What is the single judge acting?

Answer 9

• Your application arrives at Strasbourg: it is dealt with by lawyers of the registry = internal lawyers dealing with the procedure  very important: big difference between law in the books vs. law in action. Very important people but anonymous but do very important work:
  
  • They make the first assessment of the application and prepares a note for the judge-rapporteur.

Question 10

What does the single judge decide?

Answer 10

• That single judge is deciding on the inadmissibility of a case: there are so many cases, he can do it on his own.
• Protection of the application: you can never be the single judge of your own country.
• There is usually hardly reasoning behind it: biggest criticism of the single judge:
  
  • Lawyers complain that they do not know why their case was found inadmissible and the court does not have time to provide that information for everyone: but it is the goal to give some indications why you found this inadmissible.
  • A lot of discussion about.
• If the judge says: well I’m not convinced that this case should be declared inadmissible: there’s always a possibility that it goes to the other tracks.
• Single judge has been an important instrument to tackle with backlog.

Question 11

What is the committee of 3 judges acting?

Answer 11

• The panel of judges can decide that the case is inadmissible.
• Evolution of reforms:
  
  • Cases of 3 judge committees are made for repetitive cases = well-established case law in the court, either violation or no violation. But where basically no proper deliberation is needed, no proper discussion of cases is needed. It can be done in writing but they are not discussing it as if it were a case in the deliberation. Because the underlying issues are very rarely tackled.

Question 12

What is the most classic tracking?

Answer 12

• Chamber of 7 judges =

this is what we understand by a judgement delivered by the Strasbourg court:

• They decide on cases that therefore have a certain importance at first glance they seem to be admissible, although they can still decide that upon closer reflection or on second thought the case is inadmissible.
• They can decide where the merits of the case and there will be a proper delegation and there will be a proper reason and you’ll find lengthy. There is a possibility of concurring opinions, there is a possibility of dissenting opinions, so this is a real discussion, a real debate.

Question 13

What happens with the chamber of 7 judges?

Answer 13

• In the past: register made a summary of the grievances of the parties: party applicant invokes violation art. X and then the court comes up with questions for the parties  that’s where the discussion starts. So, the state party is replying and then the applicant can react and can also ask for a just satisfaction and so in those cases the discussion on the admissibility and the merits are dealt with at the same time.
  
  • And that’s where the lawyers come in and that’s where absolutely applicants also need a lawyer and it’s a written procedure.
• Basically a written procedure, very rarely a hearing. Very rare that the court has more questions after the answers, but it does happen.

Question 14

What is the juge-rapporteur?

Answer 14

• Juge-rapporteur, 1 of the 7 judges comes up with their findings and they present amendments  judgement in the language of the procedure: English or French. Sometimes parties are allowed to use their own language but this means you need translations which makes it more complicated.

Question 15

What is the grand chamber?

Answer 15

• Lawyers love to appeal so there is also a grand chamber with 17 judges. There are 2 ways to get to the Grand Chamber:

1. Relinquishment by the chamber: case is with the 7 judges but it is too sensible or complicated  court’s case law not as clear or the differences between chambers. The 7 judges can decide that the case has to be dealt by the Grand Chamber:
   
   • Example: French Berkabam case.
2. More common option: one of the parties is unsatisfied with the result = kind of appeal, but not called an internal appeal for technical reasons.
   
   • This runs a bit contrary to the idea of speeding up proceedings so there is a different procedure.

Question 16

What is the procedure appeal?

Answer 16

• Procedure appeal: panel of 5 judges and within 3 months parties can ask whether they be granted a leave of appeal: the panel decides whether it allows the case to be brought before the grand chamber: again 5%. Cases that are allowed:
• Cases important for the constitution of a state, particular questions about the interpretation of the convention and its protocols, questions about the case law = novelties in the case law of the court  the appeal allows for a kind of harmonization of the case law:
  
  • Article 8: transsexuals: there was a divide on the case law depending where the case came from (UK-France) so that became quite problematic.
• Also when cases are so fundamental to the constitutional order of a High Contracting party.

Question 17

What was the Lautsi case?

Answer 17

• Lautsi v. Italy: 18 march 2011:
• Case against Italy: Fin family that was atheist and they asked to remove the crucifixes from a public school because of state neutrality: it should not be allowed to have the symbol of 1 religion in a classroom: violation.
• Chamber judgement quite clear: yes, state neutrality when it comes to religion → state should not favor 1 religion over another so you do not need religious symbols here.
  
  • Italians felt this was a deep attack on their constitutional/ cultural order: so they protested. They thought that the European Court was imposing their view on society so they asked the Grand Chamber to overturn the decision.

Question 18

What was the Grand Chamber case against Belgium?

Answer 18

• Belgian tax care case: reason given by court of a jury: in some courts, the judges are mixed. But the most important crimes are dealt with a jury: 12 layman. They would answer a difficult decision with just yes/no, without motivations: this was in a way incompatible to a right to a fair trial because they were not motivated, the reasons of the court are not explained.
  
  • Court stated: this is an ancient tradition with a lot of guarantees in the system.
• But then: tax care case: it changes it opinion and states that now all of a sudden there is a problem. Belgium adapts its legislature and now it has to be motivated. Belgium pointed out the mistakes made by the court in the comparative analysis:
  
  • It said for example: in France there is reason giving and there was no reason giving, there was only an appeal.
• Court corrected itself but the applicant still wins his case before the grand chamber: ratio decidendi: the reasons why the court found that there was a violation is so much more nuanced and there it shows why the grand chamber cases can be important and for it allows the court to readjust its case law because maybe sometimes they come up with cases, with judgements and they may realize afterward that they’ve gone too far.
• It is impossible for the court to see what everyone is doing because of the sheer amount of cases so it is possible that after 2 years you realize that the court has gone off in one direction and the colleagues in the other direction = case law can become incoherent or insufficiently coherent  Grand chamber can bring together.

Question 19

Can the Grand Chamber decide that a case is inadmissible?

Answer 19

• The Grand Chamber can also conclude that a case is inadmissible, very rare but that they have a new understanding. Grand Chamber are the most important and they always have to be in 2 languages so a lot of translation work: judges really come up with a lot of comments, amendments and you will see that there is usually a lot of dissenting and concurring opinions.
  
  • Sometimes really complicated. The more legal issues raised, the more complex it can be.

Question 20

What are friendly settelements?

Answer 20

• There is an alternative: friendly settlement. Cases where the parties should rather settle and find a way out. And that’s when the court encourages the parties to do friendly settlement because then of course if the parties can agree on such a friendly settlement (= minnelijke schikking) then of course the whole machinery should not start to function.

Question 21

What are the obstacles to friendly settlements?

Answer 21

• Sometimes stubborn applicants keep refusing  if that happens: the court can say: the state has offered a satisfactory redress and the case will be struck from the list.
• Sometimes: the state anticipate the friendly settlement so a state can try to keep the process lengthy = excessive length procedure. Sometimes also states take the small chance that there is no violation and go to court either way and refuse friendly settlement.
• Argument of equity and equality: negotiation with a state might be incredibly difficult.

Also: if you settle, you have to pay immediately but if you go to court  next governments problem = also budgetary consideration on why states do not like to settle. Lawyers also do not have the mindset of settling.

• I think the first to accuse in general are lawyers. We don’t have a mindset of settling because you earn way less money = counterintuitive. You want to go up to the Strasbourg Court and the court is paying the price for that

Question 22

What is the difference between decisions by commitment by the Chamber of by the Grand Chamber on admissibility?

Answer 22

• Reasoning taken anonymously or by authority: separate opinions no subject possible, no to re-hearing by the Grand Chamber.
• If we have judgement, admissibility and merits, they reasons, there is an indication of the vote. Also dissenting opinions. If the court finds a violation, it has the possibility to give satisfaction that is not necessarily full compensation. Mostly quite limited amounts of money.
  
  • And then of course there is the re-hearing possible for the Grand Chamber.

Question 23

When does a judgement become final?

Answer 23

• When you have a judgment of a chamber, it becomes final after 3 months. No appeal launched before the Grand Chamber or you have a Grand Chamber judgment it’s final no more appeal after you have a judgement.
• How to execute the judgement: how do you get execution in your domestic legal order.

Question 24

How can we execute a judgement?

Answer 24

• Perhaps weakest part for the court: there should be compensation and sometimes the court says: the finding of a violation is sufficient a compensation.
• Cases against Italy concerning mafia bosses: entitled to a fair trial, but why should the court reward them with compensation so they will say: the finding of the violation is sufficient a compensation. Most times they do this when there is no possibility for restitution, there is no possibility or when something more than just this more satisfaction is needed, they can decide to do other things.
• The execution of judgement is done by states. Under the supervision of the committee of ministers in the council of Europe and here of course you come and see that there is a kind of diplomatic effort.

Question 25

When is execution more problematic?

Answer 25

• Whenever execution is not that difficult = not too many problems, eg. awarding money.
• Sometimes it is more problematic when the violation is of such a nature that you have to compensate the individual but also from a structural point:
  
  • Changes in the legal system, illegal provisions of the civil court, violating the convention  changes in legislation, that is not going to happen overnight.
  • Case in Belgium of a politician in Charleroi about the electoral regime: the politicians themselves are in charge of controlling whether the procedure to the elections were lawful and that is called the ‘onderzoek van de geloofsbrieven’ and the assessments of the credentials. Now there is a problem, defined in the constitution for the Chamber and that I’s defined in the special laws for the regional parliaments.
    
    • Problem is clear: you should not be judge and party at the same time  problem: execution of that judgment means that the constitution has to be changed so that will take some time.
• Another example: people who commit crimes with an unsound mind = helping those people is not something you can do overnight = takes some time.

Question 26

What are the reforms of the court?

Answer 26

• Reforms of the court because of the influx of cases and the backlog -> Interlaken Izmir, Copenhagen & Brussels = high level conferences trying to change a little bit the machinery.
• Result: Everyone told the court: be more performant, efficient but it changes with the Brussels declaration -> maybe it is not only a matter of states that should be more performed or that the court needs to be more performant, yes the court heard the message but it’s also a matter of the states being more aware of their obligations under the convention:
  
  • Both have to work together for the protection of human rights and so the outcome of those discussions and those proposals for reform is basically two protocols: protocol 15 and protocol 16.

Question 27

What is protocol 15?

Answer 27

• The margin of appreciation is going to be inserted in the preamble to the convention and the margin of appreciation is already a creation by the court in itself and it will become part of the preamble to the convention to stress the idea of subsidiarity. It’s in part a way to highlight the importance of the high contracting parties, within the system.
• It’s in part also paying attention to the variety and the diversity in Europe and so in a way accepting the criticism.
  
  • Lautsi v. Italy: the court recognizes that it is not up to them to impose one specific conception of state relations on Europe.

Question 28

What is the Taxquet case?

Answer 28

• (13 January 2009): ECHR finding a violation of art. 6 because the jury does not motivate their decision.
• Court states in one paragraph: it is not for our court to impose one single European concept of criminal low administration we have to assess, we have to make sure that national states respect the minimal minimum that is set forth by the convention. Once that threshold is past one states respect the minimum of the convention, they may opt and they decide to go in various directions and we fully have to recognize that.
• Court is not the European Union where there is a tendency towards more harmonization or even do unification that is not our issue and so the preamble to the convention the idea would be to stress that.
• Also in protocol 15: we’re going to reduce the six month delay, the six month time to file an application to 4.

Question 29

What is protocol 16?

Answer 29

• It’s a protocol that has not been ratified yet by Belgium and many states have not ratified it yet. Yet it entered already into force in states as France. They want to create a kind of preliminary ruling system. You can’t compare it completely to the preliminary ruling system that exists under EU law but somewhat similar.
• It is said that the national states can design highest courts, states can choose which one (would be Cassatie & Grondwettelijk Hof): And they would be able to ask a preliminary to refer a preliminary question to the Strassburg court on the interpretation of the convention or the protocols.

Question 30

What is the goal of protocol 16?

Answer 30

• Avoid cases coming up to Strasbourg Court because then the domestic legal order can already solve some problems.
• There has already been delivered an opinion concerning France, there is another opinion asked. There are already some cases on the database: ‘preliminary ruling’, ‘some advisory opinions’.

Question 31

Is protocol 16 going to work?

Answer 31

• Prof is unsure: tradeoff in the time that it takes the court to give its preliminary opinion and the time to process an application
• So what is possible now is that some in a given domestic case, the court first has to come up with a preliminary opinion and then afterwards maybe the applicant goes back to the court files an application for is not satisfied with the outcome. The court will also have to treat that.
• Hope: court will be able to process case rapidly after already delivering an opinion  unsure how that will work in reality but seems reasonable to assume. Where the advisory jurisdiction is established but that has little to do with the applicants. The advisory jurisdiction on the convention can be given of course to the committee of ministers they can ask; they can file a request to the court whenever they have a question.

Question 32

What is art. 52?

Answer 32

• Inquiries by the Secretary General
• Article 52:There is the possibility for the secretary general to ask any state party information, on the provisions the implementation and the way they implement the European convention on human rights.

Question 33

Is art. 52 EVRM often used?

Answer 33

• Last time in the scandal of Echelon: secret service of some states were wiretapping other states during Cold War. Also secret detention camps in Europe. Where some states were using or paying service to the US not to name them having secret detention camps what afterwards has been confirmed in some of the cases against those states before the Strasbourg court but there is much more possibility for the state for the secretary general to use that possibility.