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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
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