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Home arrow newsitems arrow ECHR Chief Registrar Liddell to EF on Discretionary Power's Decision-Making Process' control

ECHR Chief Registrar Liddell to EF on Discretionary Power's Decision-Making Process' control

Written by ACM
Friday, 04 May 2018
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*Strasbourg/CoE/Angelo Marcopolo/(Partly UPDATED)/- Replying to an "Eurofora" Question on the Judicial Control of Public Administration's Discretionary Powers, and, particularly, if and when, according to ECHR's case-law, this should include, or not, a part of Supervision on the way that they take into account concerned Citizens' relevant arguments, in order to adequately Reply to them, (in a kind of Procedure of Dialogue between Citizens and State, or "Controle du Processus Decisionel" in French), ECHR's Chief Registrar, Roderick Liddell, who has a very Extensive Experience of the PanEuropean Court's work since several Decades, after Studying Law at Oxford University and working as Legal Expert, Assistant to ECHR's President, Chief of Press/Communication, Head of Strasbourg Court's General Services, and Elected on December 2015 as Registrar responsible for about 600 Legal and Administrative Staff at the ECHR, appeared Both Positive and Pedagogically crystal-clear, on the Substance of that matter :

 

+ And, Surprizingly, a Long Series of ECHR's Judgements Published just Yesterday in Strasbourg, seems to consistently Support, with Concrete Evidence, at least the Main Thrust of Roderick Liddell's Replies to "Eurofora"s Questions, concerning Human Rights and the Judicial Supervision of Public Authorities' Discretionary Powers, as we shall see Infra...

 

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 - "I think, that There has Always been this Procedure Element", he surprisingly told us, from the outset, adopting a quite original approach.

 
  - indeed, "for me, Procedure has a Role to Play in almost Every Article of the (PanEuropean Human Rights') Convention !", he stressed.  "It has Always been a Procedure Element. There has always been an important Procedure Dimension".


- "Because, part of the Aim of the Convention is to Create a Situation where Applicants can obtain Redress in their Domestic System".


- "So that involves having the necessary Procedures and Structures in place, to be Able to pursue the Verification of Conventions' complaints at National level".


- "Part of it is to have procedures in place which are Able to Ensure that, when the Convention is examined at National Level, then, the National Authorities go through the Necessary Process of Taking into Account the Competing Interests, in the Light of the Strasbourg's Case-Law".


- "It's a Question of Procedures Affecting the Settlement", he Positively replied to "Eurofora"s secondary Question if this really includes also the Exchange of Arguments (in a kind of Dialogue, or "Procedure Contradictoire" in French) with the concerned Citizens.


- "If you see f.ex. at Article 8 (protecting Private/Family Life), ECHR's case law Requires that when it looks if National Authorities have Examined the Issue of Proportionality, then, the Question of the Existence of that Procedure, and the Course of that Procedure are in there...", he pointed out in conclusion,


(Stressing particularly that Last Point on the "COURSE" of that "Examination Procedure", which seems, indeed, Similar to what we call in French : - "Contrôle du Processus Decisionel", or, alias : "Checking the Decision-Making Process", even in cases of Discrerionary Power detained by Public Authorities).

Liddell spoke to "Eurofora" on the Sidelines of the Official Ceremony, Headed by CoE's Secretary General, Thornbjorn Jagland, for the Award of Prizes won by the Best Teams competing at the Final Round of the European Law Students' Association (ELSA) Annual Moot Court contest, in ECHR's Headquarters, at the 10th Anniversary of its regular Cooperation with the CoE, Hailed this year by the Chairman-in-office of the PanEuropean Organisation's Highest Political Body : that of its Committee of Ministers, Danish Ambassador/Permanent Representative to the CoE, Arnold de Fine Skibsted, after a Strong Competition between a Hundred of Registered Universities from all around Europe, among which, 19 were invited to Strasbourg for the Final Round, won by Spanish IE University (Madrid), facing London's Kings College (which got the 1st Individual Plaidoyerie prize, instead, See : http://www.eurofora.net/newsflashes

 

 Both this CoE-ELSA English Speaking Moot Court Competition, and the Equivalent, French-Speaking Contest at ECHR organized by the International Institute for Human Rights "René Cassin", (very Popular in Strasbourg : See "Eurofora"s NewsReport from its Recent, 2018 Awards, at: http://www.eurofora.net/newsflashes/news/whistleblowersatrenecassinechrcontest.html), are notoriously Focusing mainly on Developing the Capacity of those Representing a respondent State, and/or one or more Applicant Citizens, to Exchange Facts and/or Arguments, in relation with ECHR's case-law Principles.


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+ By a timely Coincidence, this week, ECHR has just Published a Series of various New Judgements, concerning Different States and Different aspects of key Human Rights, (f.ex., unreasonable Delays in Length of Proceedings, InHuman/Degrading Treatments, etc), which all Focus mainly on a Similar Key-Point:


- Always in these Cases, ECHR consistently reiterates, indeed, that: EuroJudges have "Examined all the Material Submitted" to the Court by the Parties, (i.e. the applicant CITIZENS and the respondent STATE), but have "Not found any FACT or ARGUMENT Capable of PERSUADING" them, "to Reach" this or that "Conclusion" on this or that Concrete Human Rights' Legal Issue, "Regard(ing)" ECHR's "Case Law on the subject" concerned there.


=> I.e., ECHR obviously evokes a kind of DIALOGUE, Between Citizen and State, using Facts and Arguments, capable of Persuading, in order to Reach this or that Conclusion, on Human Rights, regarding ECHR's Case-Law principles :


>>> That seems to be Exactly what "Eurofora"s co-Founder has Found, Described, Analysed and Defined (initially Named, at the Original in French : "Contrôle de Légalité du Processus Decisionel d'un Pouvoir Discretionaire"), both in Legal Scientific Research (already made, Basically, since a Long Time Ago at certain University Papers, to which were Added, Meanwhile, also active paticipations to certain Scientific Conferences), as well as in Recent Legal Research and/or Journalistic, Original Press Reports, at least Partly Related, Moreover, to "Eurofora"s main Project about Innovative Social Uses of New Digital/Communication Technologies 1997-2018, in Parallel) !


+ In Certain among this Long Series of Cases, whose Judgements were published this Week, ECHR even goes as far as to clearly Explain, one by one, at least the Main Points on which Citizens and States should Focus in their Dialogue whenever an important Decision affecting Human Rights is to be taken :


 In Concrete terms, it naturally Depends on the Particular Right concerned in one or another Case : F.ex., concerning the "Length of Proceedings" of Public Authorities, ECHR explains anew that "the Reasonableness", or not, of such Delays, "must be Assessed, in the light of the Circumstances of the case and with reference to the following Criteria: the Complexity of the case, the Conduct of the applicants and the relevant authorities, and what was at Stake for the applicants in the dispute".


It's on these Key-Points, that a kind of Dialogue between Citizens and States, whenever relevant Decisions affecting those Human Rights are taken, should Focus, according to the ECHR.


=> In Conclusion, all these Converging, older and recent Facts, clearly appear to Justify ECHR Registrar, Roderick Liddell's above-mentioned, interesting Statements, made (as a matter of General Principle, and on the basis of his particularly Extensive Experience) in Reply to relevant "Eurofora"'s Questions, (Comp. Supra), concerning a Core Legal (and Socio-Political) Issue of Nowadays European Society and well beyond.

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+ For anOther, and also very Interesting, Approach of this Same Issue, from a Different Angle/Point of view, (but, in fact, clearly Complementary), See Also the Extensive Reply that ECHR's President himself, Guido Raimondi, kindly gave to a relevant "Eurofora"s Question during his Annual Press Conference, already as early as since January 2018, at : http://www.eurofora.net/newsflashes/news/echrpresidentondiscretiionarypowercontrol.html).


Obviously, President Raimondi's above-mentioned Reply to "Eurofora"s Question during ECHR's Press Conference, also Points at Both Recent and Forthcoming Judgements adding more or less New Developments, which may unfold also in the foreseeable Future, in a kind of On-Going Evolutionary Trend (as he Observed himself), already set in Motion...

 

 

(../..)
 

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Former "Green-Red" German government's Foreign Minister Joschka Fischer's job at the controversial Turkish pipeline "Nabucco" was denounced as "not proper", "very bad", and "incompatible with Democracy", by the new President of EU Parliament's EuroLeft Group, German Lothar Bisky, replying to an "EuroFora" question.

For once, criticism of Joschka Fischer's doings with Turkey affecting Europe, didn't come only from the Center-Right of the political spectrum, but even from his Left side : The experienced Bisky, who has been chairing all over 1993-2009 the PDS - Die Linke party :  

- "Former Foreign Minister Joschka Fischer got involved in dealings with oil-gaz business in a foreign country, Turkey, and its controversial Nabucco pipeline. This raises questions about Democracy, also because of the well known problems of Human Rights violations in that country. Do you thing that this might be abused in order to cover up and close EU's eyes on Human Rights violations ?", "EuroFora" asked Bisky.

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- "Nabucco pipeline is (only) at the planning stage". And "there are some difficulties",  he observed from the start. But "'I don't want to get into the details of Nabucco pipeline, because I don't think that there is any point for it at the moment".
 
At any case,  "we  (EU Parliament's EuroLeft Group) strongly believe that Politicians should not get involved in the Energy Business, and all these commercial transactions", President Bisky declared on the Joschka Fiischer's affair.

- "We feel that it's something that shouldn't be done. It's not proper !"           

- "We don't think that it's compatible with Democracy either, and it gets politics into a very Bad track", Bisky went on to denounce.
                                                                                                                                                                        
- "EuroLeft  and "Die Linke" always spoke against that, saying that politicians should not get directly into the arms of private enterprises"

- "It is pretty bad if a former Minister takes a job f.ex. in a major Energy producer. So, it's an issue if a Minister who may have seen excellent opportunities, subsequently gets personally grasp of them, in very serious parts of the economy, once he has given up his (Government) job."

- "It doesn't really make politics in general look any better'", Bisky concluded.

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Earlier, this week in Strasbourg, other Journalists had also raised critical questions on former Foreign Minister Joschka Fischer's involvement in the conroversial Turkish Nabucco pipeline to the President of his own EuroParty : Kohn-Bendit of the "Greens", who, contrary to Bisky, tried to find excuses for Fischer, while criticizing his long-time partner, Schroeder for having done a similar move :

- "Shroeder was chancellor", and he "negociated" with "Russians", who gave him a job only "3 Months" after he resigned from the Government. While "Joschka Fischer", on the contrary, got a job with the controversial Turkish Nabucco pipeline only "4 Years after" he left the Government. "He didn't negociate Nabucco", so I have "no objection", Kohn Bendit claimed.

But, many Facts indicate the contrary :

Joschka Fischer was Foreign Minister in Germany from 1999 up to 2005 : I.e. from the year that EU took the controversial decision to give Turkey a "Candidate" status, until he year it started controversial "accession negotiations, (later declared "open-ended" after Sarkozy-Merkel's arrival from 2005-2007).

During that period was prepared the controversial so-called "Annan" Plan (in fact, drafted by others and attributed afterwards to the former UN SG) on Cyprus, which failed after a Popular Referendum said "No" on 2004 with a large Majoriy of 3/4 : 75%. Mainly because it was criticized for making too much concessions to the Turkish side :  Particularly by restricting Greek Cypriot Refugees' Human Right to return to their ancestral Land and/or get restitution of their Familiy Homes and private properties, usurpated by Ankara's Army since the 1974 militay invasion and continuing occupation of the northern part of Cyprus. And by weakening the Central Government, leaving to 2 "constituent States" so much powers and separate interests that more conflicts appeared inevitable, provoking the danger of a break-down in the foreseable future, with more crisis, troubles, perhaps bloodshed, etc., instead of creating an harmoniously integrated, really one federal State.

The controversial Plan was finalized on March-April 2004 at Burgenstock (Switzerland), curiously in the presence of an Envoy by the Ministry of Foreign Affairs of Germany, then governed by Joschka Fischer, but in the absence of a French and not even an European Union's Envoy, contrary to what was usually practiced on similar occasions in Switzerland (fex. in 1997 at Montreux, in 2000 at Geneva, etc).

Turkey notoriously exploited the failure of the "Annan" Plan in order to convince the EU to decide to start accession Negotiations on December 2004. This provoked an unprecedented series of Institutional Crisis inside the EU, shortly afterwards, when French and Dutch People rejected, 2 popular EuroReferenda by a majority "'No" vote to the EU Constitutional Treaty on 2005, aggraveted in 2004 a Majority Abstention to EU Elections, etc., followed by the recent Irish "No", etc.

"Nabucco" Gas pipeline was notoriously planned since ..2002. It follows an even earlier idea, for an Oil pipeline Baku-Ceyhun, which started to be prepared on 1999-2001 and was meanwhile recently completed.  

So, facts indicate that what is now at stake is based on decisions made during Joschka Fischer's term as former Foreign Minister, closely interested in Turkey's controversial EU-bid.

To the point that he now practically ...switched jobs with a poliician from Turkey, (the State which pays today openly Joschka Fischer), Mr. Ozdemir, who came earlier in Germany, got fast the nationality, and became EiuroMP in a few years, continuing now as head of the "Greens" in Germany, i.e. in Joschka's former job !...

Such astonishing facts risk, unfotunately, to give to German politician Lothar Bisky's criticism of  representative Democracy a topical meaning :

 - "We (EuroLeft Group) think that what is really at stake is Democracy. It's not only about Gas Pipelines or Energy sources", President Lothar Bisky went on to add in his reply to "EuroFora"'s question on Joscka Fischer's personal interests in the controversial Turkish "Nabuco" pipeline.

Such facts, "make People get more distance from Politics. ...People had had enough, and they are fed up !".

- "That's why we (EuroParliament's "EuroLeft" Group) want to strengthen Direct Democracy in Europe. Citizens should be involved in the (EU) Decision-making. In the end of the day, it's not going to help anyone if Politicians are always taking decisions, without involving Citizens. We want to give a voice to the People of Europe. They've got to have their say in the decisions that are taken. That's one of our absolutely fixed and steadfast views. We want more Direct Democracy in Europe. That's how it can become more effective and stronger", he concluded.

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