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, , 10 2006, ( )

 

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]

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