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Summary

AN EXAMPLE OF DIALOGUE: THE HEARSAY SAGA

In the early 2000s, Mr Al-Khawaja was convicted of indecent assault and Mr Tahery of wounding with intent to cause grievous bodily harm. They were both sentenced to custodial sentences in the UK. These convicts have in common that they felt that their trials had been unfair because their conviction was principally based on hearsay evidence. At Mr Al-Khawaja's trial, the statement to the police of a woman who made complaints against him was read to the jury. This woman could not testify at trial because she had passed away. A witness statement in Mr Tahery's case was also read to the jury because the witness feared attending trial. The UK courts to which the applicants complained concluded that their right to a fair trial had not been infringed. Consequently, the two men brought an application to the European Court of Human Rights (Court) in Strasbourg, which decided otherwise. Sitting as a chamber of seven, it held unanimously that the admission of the hearsay evidence at trial was in violation of the right to a fair trial, which is protected by Article 6 of the European Convention on Human Rights (Convention). A little less than three years later, the Court's Grand Chamber concluded upon referral that Mr Tahery's Article 6-rights had been violated and that there had been no violation of Article 6 in respect of Mr Al-Khawaja. The latter ruling was supported by a solid majority of fifteen votes to two and amongst the fifteen was Judge Bratza, who also sat in the chamber that had found a violation in the same case. Why did the Grand Chamber reverse the chamber's judgment in Mr Al-Khawaja's case? And why did Judge Bratza vote, first, for a violation and, then, against finding one in that case? Clues to these questions can be found in a judgment of the Supreme Court of the United Kingdom (UK) in the case of R. v. Horncastle and Others.

The UK Supreme Court spoke after the chamber had decided and before the Grand Chamber considered the case of Mr Al-Khawaja and Mr Tahery anew.

Summary

MAIN FINDINGS

Part 1

A Characterisation of the Convention System

The first question which this research set out to answer was the normative question whether and, if so, for what reasons, the notion of dialogue can be of added value to the Convention system. To answer this question, some understanding and a characterisation of the Convention system were required. Chapter II characterised the Convention system in terms of its establishment, functioning, developments and reforms, with a focus on how these matters have influenced the relation and distribution of powers and responsibilities between the interlocutors which take part in the Convention dialogue. Chapter III zoomed in on those characteristics which were particularly important to giving an account of the added value of the notion of dialogue to the Convention system.

The short narrative on establishment explained how both the concept of human rights and that of democracy played an important role in the minds of the drafters of the Convention. The current object and purpose of the Convention system, which are key to understanding its functioning, can still be summarised as maintaining and further realising individual human rights and protecting democracy.

To understand the system's functioning, one must also become acquainted with the institutions, or interlocutors as they were called in this study, which are the system's driving forces. The states parties are to play the most important role, for they should secure to everyone within their jurisdiction the rights and freedoms defined in the Convention. This responsibility carries with it the obligation to execute any adverse judgment adopted by the Court to which a state is a party, which involves ending and remedying the violation found and preventing future violations. Not all states discharge their important role adequately; they sometimes act in bad faith or fail to solve widespread problems, which imply that they fail to fully execute the Court's judgments and to implement the Convention.

The guardian of the Convention is the Court and its task is to ensure that the states observe their engagements undertaken under the Convention. Over the course of its existence, the Court has stepped up and assumed new responsibilities, something which can cause tension between itself and the states.

Summary

Theorie, potentieel en praktijk van procedurele dialoog in het systeem van het Europees Verdrag voor de Rechten van de Mens

Lang voordat het begrip dialoog werd toegepast op het Verdragssysteem, gebruikten academici die andere rechtssystemen bestuderen het al om bijvoorbeeld interactie tussen hoven uit verschillende staten te beschrijven. Anderen gebruikten het begrip al als onderdeel van een normatief kader voor de regulering van relaties tussen hoven. Inmiddels zijn steeds meer rechters, academici en andere Court watchers gaan verwijzen naar ‘dialoog’ wanneer zij de relatie tussen het Europees Hof voor de Rechten van de Mens (Hof) en de lidstaten bij het Europees Verdrag voor de Rechten van de Mens (Verdrag) bespreken. Daarnaast blijkt de notie nog andere functies te kunnen hebben, bijvoorbeeld om de relatie te duiden tussen het Hof en andere instituties van de Raad van Europa, zoals het Comité van Ministers (Comité).

In dit onderzoeksproject is de notie van dialoog bestudeerd in het Verdragssysteem tussen de volgende ‘gesprekspartners’: de verdragsstaten, het Hof, het Comité, de Parlementaire Vergadering van de Raad van Europa (Vergadering) en de Commissaris voor de Rechten van de Mens (Commissaris). Gezocht is naar een antwoord op de vraag waarom een dialoog plaats zou moeten vinden en op de vraag of zo'n dialoog inderdaad om die redenen plaatsvindt. De intuïtie is dat dialoog goed is voor het Verdragssysteem, en deze klinkt door in veel verwijzingen naar het begrip. Doel van dit onderzoeksproject was om die intuïtie juridisch en empirisch nader te onderzoeken. Dit is gedaan door de notie van Europese dialoog zo te conceptualiseren dat deze kan dienen als een normatief raamwerk voor het onderzoeken van de interactie in het Verdragssysteem tussen de zojuist genoemde gesprekspartners.

Meer precies is de eerste vraag die in dit onderzoeksproject centraal staat de normatieve vraag waarom de notie ‘dialoog’ van toegevoegde waarde kan zijn voor het Verdragssysteem. De beantwoording van deze vraag vereist enig begrip van het systeem. Daarom karakteriseert hoofdstuk II het Verdragssysteem in het licht van zijn oprichting, werking en de ontwikkelingen en hervormingen die het heeft meegemaakt. Deze karakterschets concentreert zich op de manier waarop deze context invloed heeft gehad op de verdeling van bevoegdheden en verantwoordelijkheden tussen de gesprekspartners.

Summary

This chapter is, together with the next, a necessary predecessor of chapter IV, which inter alia will describe the added value of dialogue for the Convention system. Clearly, to come to such a description, it is first required that the characteristics of the Convention system itself are introduced. The characterisation in this chapter is made from four angles: the system's establishment, its functioning, the developments it has gone through and past and current reform to the system. To ensure the relevance of this chapter to the central theme of this study – Convention dialogue, the chapter focuses mainly on how the system's establishment, functioning, development and reform have determined and influenced the relation and the distribution of power and responsibilities between the interlocutors taking part in that dialogue.

THE ESTABLISHMENT OF THE CONVENTION SYSTEM

Unity and Human Rights

The establishment of the Convention system can be understood in the light of the development of two ideals that preceded the First and Second World War and that came to bloom directly thereafter: European unity and human rights. The ideal of European unity through either voluntary or forced means can be traced back as far as Charlemagne, Napoleon and Kant; that of human rights as far back as the American Declaration of Independence and the French Declaration of the Rights of Man. Moreover, the ideals of cooperation, peace and security played a role during the Interbellum when the states parties to the League of Nations agreed to the Covenant of the League ‘in order to promote international co-operation and to secure international peace and security’. The ideals of unity and human rights transcended Europe and appealed universally after the end of the Second World War. In June 1945, the UN was established. Its Charter clearly echoes the two ideals. The UN is to be a ‘centre for harmonizing the actions of all nations’, aiming to take collective measures to attain the common ends of maintaining international peace and security, to develop friendly relations among nations and to achieve international co-operation in solving international problems. The UN Charter also refers to human rights at different occasions. Most importantly, one of the UN's purposes is to ‘achieve international co-operation […] in promoting and encouraging respect for human rights and for fundamental freedoms’.

Summary

Long before ‘dialogue’ became a buzzword for the Convention system, it was already being employed by academics researching other legal systems to describe interaction between, such as domestic courts from different states. Others have relied on the notion to construct a normative framework to regulate exchanges between courts. Indeed, the notion of dialogue crops up with increasing frequency in discussions of relationship between the judges of the European Court of Human Rights (Court) and the states parties to the European Convention on Human Rights (Convention). The notion can, however, also be usefully applied in research into, for example, the relationship between the Court and the Committee of Ministers (Committee).

This study examines dialogue in the Convention system between the Court, the states parties, the Committee, the Parliamentary Assembly (Assembly) and the Commissioner for Human Rights (Commissioner). More specifically, the normative question covers the reasons why dialogue should take place, with descriptions of whether and to what extent a procedural dialogue indeed does take place for the reasons given. Thus, the common sense realisation that dialogue can add value to the Convention system, which can be found in many references to dialogue, is dissected. This is done by developing a concept of dialogue that can serve as a normative framework for interaction in the Convention system. The research, although it focuses on the relationship between the Court and the states, also takes account of these other Council of Europe interlocutors: the Committee, the Assembly and the Commissioner.

To avoid repetition, the reader is referred for a further summary to the main findings of this research, presented in section 1 of chapter XIII (Conclusions and Recommendations). This section can be read as a summary of the entire volume.

Summary

Chapter II characterised the Convention system in terms of its establishment and functioning and the developments and reform it went through; chapter III characterised the notion of dialogue by illustrating how it has been employed in different settings as a descriptive and normative tool and by enumerating prerequisites, facilitators and instruments for dialogue. This chapter combines and is based on the foregoing two chapters, thus bringing together the Convention system and the notion of dialogue.

As can be derived from chapter III, the notion of dialogue can be used either in a descriptive or a normative sense. This chapter is geared towards the normative question whether, and if so, why the notion may be usefully applied to the Convention system and what the added value of its application would be. The aim is therefore to give insight into the normative worth, rather than the descriptive value, of dialogue. As is proposed, the normative worth of dialogue can be based on the need to manage two categories of tension that characterise the Convention system and that have been discussed in chapter II: internal and external tension. More positively, another basis for the use of dialogue in the Convention system can be found in the necessity of cooperation between the different interlocutors in order to bolster the effective functioning of the system.

Section IV.1 elaborates on the importance of cooperation, which will be based on two characteristics of the Convention system established in the conclusion to chapter II: the lack of final power and the sharing of responsibilities. Section IV.2 deals with internal tension and IV.3 with external tension. Further, section IV.4 turns to the notion of dialogue as a means to improve cooperation and to handle the problematic aspects of internal and external tension in a way that they do not jeopardise, but stimulate the effective functioning of the Convention system. The last section, IV.5, looks forward and explains how this study proceeds in parts 2 and 3. It formulates the research questions and describes the indicators which facilitate answering these questions.

THE NECESSITY OF COOPERATION

Cooperation between the interlocutors on the national and the Council of Europe level is indispensable or at least instrumental to the effective functioning of the Convention system: the better the cooperation, the more effectively the system functions.

Summary

The pilot judgment-procedure (PJP) was already shortly referred to in chapter II as a manifestation of the effectiveness principle in the execution phase. This procedure is discussed separately from the other procedural steps because it is, as explained hereafter, a unique and uncommonly comprehensive procedure in the Convention system. As was the case in the previous two chapters, which concerned the (pre-)merits and execution phases, the first section of this chapter contains an introduction and the second section assesses the procedure from the perspective of the seven indicators for dialogue. The last section gives a short summary of the findings.

INTRODUCTION TO THE PILOT-JUDGMENT PROCEDURE

The CDDH advanced the PJP in 2003, in the context of a package of reform measures aiming to preserve the Convention system in the prospect of a continuously growing workload. The procedure was presented as a measure for the prevention of violations and the improvement of domestic remedies. The Court picked up the proposal and suggested amending the Convention to include the PJP, but the CDDH considered this unnecessary. In 2004, the Committee issued a resolution inviting the Court to identify in its judgments, where relevant, both the underlying systemic problem and its source. This approach could assist the respondent state in remedying the problem and would help the Committee to exercise its supervisory task. The Court took up the invitation in Broniowski v. Poland, its first pilot judgment, pronounced in 2004.

In the absence of a firm Convention basis, the Court has relied on Article 46 to legally justify its recourse to the procedure. After some years of practice, it inserted a new rule on the PJP into the Rules of Court, which entered into force on 1 April 2011. Since then, a pilot judgment can be defined as a judgment:

Summary

Chapter XII is the last and concluding chapter of part 3 which aimed to establish the dialogicness in practice of Convention-related procedures with some or clear dialogic potential on paper. The chapter brings together the findings made with the help of the seven indicators of dialogue in chapters IX-XI as regards the (pre-)merits phase, the execution phase and the PJP. It thus answers one of the questions posed in chapter IV, namely whether procedures with dialogic potential on paper allow dialogue between the interlocutors to develop in practice. In the last section, an overview is presented of the level of dialogicness of the procedures.

INDICATOR 1: PROCEDURAL OPPORTUNITIES FOR INVOLVEMENT OF ALL INTERLOCUTORS

Based on the findings of the chapters on the practice of various Convention-related procedures, it can be concluded, first of all, that these procedures in practice allow each interlocutor but the Assembly to become involved. Although it was found in chapter VI that there are some opportunities for involvement on paper of the Assembly, they have not materialised in practice: the Assembly has not yet intervened in writing or at hearing and nor can it play a role effectively through Assembly questions/recommendations.

In practice, the states become involved most often as a respondent state, but also sometimes without being a party to a case, for example through third-party interventions. Respondent states use most of the various procedural opportunities for involvement which were also described in part 2. Additionally, it turned out in part 3 that the respondent state can take part through informal exchanges with the Court both prior to and after the communication of a case and can request an extension of the deadline set in a pilot judgment. On a more negative note, their involvement is rather limited in the course of a routine friendly settlement; they cannot request successfully a hearing, do not request debates for DH meetings and have not yet become involved through infringement proceedings. Further, respondent states do not always use the possibility to submit observations fully in response to the communication of a case, nor do they always use the procedural step of action plans/reports to the fullest. Non-respondent states play a role through hearings and third-party interventions in the (pre-)merits phase and by commenting on and asking questions about action plans/reports in the execution phase.

Summary

Part 2 has established the dialogic potential of Convention-related procedures on paper and gave an overview of procedures with limited, some or clear dialogic potential. The question whether these procedures translate their dialogic potential on paper into dialogicness in practice is answered in the part 3, which commences with this chapter.

The way in which the relevant procedures are supposed to function on paper was already described in part 2. This chapter supplements these descriptions by outlining how these procedures function in practice. Subsequently, the functioning in practice of these procedures is assessed in the light of the seven indictors for dialogue so as to make it possible to draw conclusions as to the dialogicness of the procedures in practice.

THE FUNCTIONING OF THE PROCEDURES IN PRACTICE

Communication

Methodology

In this section, not only the questions which the Court poses to the parties in the ‘Statement of Facts and Questions’ when communicating a case are discussed, but also the state's written observations submitted in response to that statement. Prior to this describing this however, other contacts between the respondent state and the Registry are described.

This section is written, in addition to based on sources such as the research interviews, in part based on a selection of communicated cases from the ‘Communicated Cases 2010-2011’ documents collection on HUDOC. The selection was made by performing a search in the collection on 24 January 2014, with language filter ‘English’. The results, in total 3286, were sorted by the newest date, and the first 50 results were selected. All communications referred to in this chapter result from this selection, unless otherwise indicated.

Before and after a case is communicated to the state, contacts can take place between the Court (in the person of case lawyers and other persons working for the Registry) and the respondent state (in the person of agents representing a state before the Court). Whether these contacts take place depends on how well persons know each other and whether they have a friendly working relationship. Such relationships are sometimes maintained by setting up informal meetings whenever an agent is in Strasbourg, but the contacts are also in writing, or by phone or e-mail. As an interviewee noted, the Registry is rather approachable for government agents.

Summary

As was already explained in chapter VI, this study is not limited to formal Committee procedures, but extends to other procedural opportunities for involvement in the execution phase. One of these opportunities, namely Article 46-indications, was not assessed in chapter VI, because the power of the Court to make such indications is not laid down ‘on paper’. Instead, it is a product of the Court's practice, and is therefore exclusively discussed in this chapter, which concerns the dialogicness of Convention-related procedures in practice. Prior to addressing individually the functioning of the procedures in practice (section X.2) and their dialogicness in the light of the indicators for dialogue (section X.3), a more general introduction is given to the practice of execution (section X.1).

INTRODUCTION TO THE PRACTICE OF THE EXECUTION

Before starting to describe the way in which the procedures function in practice, it is useful to briefly describe two assisting bodies which are of great importance to the Committee: its Secretariat and the Execution Department. It is impossible to just refer to the work of the Committee without introducing these bodies when discussing the practice of execution. This holds in particular for the Execution Department, because, as is explained below, the Committee relies heavily on that institution. Additionally, the introduction outlines certain aspects of the supervisory execution process.

The Secretariat

The Secretariat of the Committee of Ministers (Secretariat) is an administrative entity comprising 25 persons, 3 of whom belong to the human rights team. Its task is to ensure that the DH meetings run smoothly, which entails inter alia distributing relevant documents (e.g. the order of business) to the deputies. Further, the Secretariat performs a language check on these documents, which are submitted to it by the Execution Department. Occasionally, it makes a suggestion concerning the content of the documents and it has some influence on the cases selected for the order of business as proposed by the Execution Department. However, when compared to the Execution Department, it does little work with respect to the substance of the execution process. The Secretariat rather functions as an intermediary between the deputies and the Execution Department. Probably for that reason, the deputies refer to the ‘Secretariat’ also when they actually mean to refer to the work of the Execution Department.

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Chapter I - Introduction

Summary

List of Abbreviations

School Of Human Rights Research Series

Chapter XIII - Conclusions and Recommendations

Summary

Part 2

Summary in Dutch

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Chapter II - A Characterisation of the Convention System

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Summary in English

Summary

Frontmatter

Contents

Appendix III - Full Pilot Judgments

Index

Chapter IV - The Convention System and Dialogue

Summary

Chapter VII - The Dialogic Potential of the Pilot-judgment Procedure

Summary

Chapter XII - Conclusions: The Dialogicness of Convention-related Procedures

Summary

Chapter IX - The Dialogicness of Procedures in the (Pre-)Merits Phase

Summary

Chapter X - The Dialogicness of Procedures in the Execution Phase

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Curriculum Vitae

Appendix II - Sample of Questionnaire

Part 3

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