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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
echrs_registrar_roderick_liddell__agg_eurofora_400_01
 

*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...

 

echr__horizon_sunset_eurofora_400


 - "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.


--------------


+ 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.

 -------------

+ 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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ECHR's President to "EuroFora" on Journalists Gongadze and Adali murders : Principles must apply to all States, without discrimination.


+ ECHR's Statistics on Freedom of Expression (See below).


 European Court of Human Rights' President, Jean-Paul Costa, questioned by "EuroFora" on Journalists' murders, as in Gongadze and Adali's cases etc., strongly stressed all CoE Member States' obligation to make efficient Investigations to find and punish those responsible, and underlined that ECHR's case-law's principles must apply to all without any discrimination.

His call was clearly supported by various Top MEPs who denounced a risk of "Double Standards" if some Journalists' murders are investigated, while others don't.

To avoid such risks, CoE's Parliamentary Assembly adopted a Resolution, on the occasion of Ukranian Journalist Gongadze's murder, "stressing", as a matter of general Principle, "the importance it attaches to the safety of Journalists and political activists, especially those linked to opposition groups, in ALL member states of the CoE". All "crimes against journalists and political activists must be investigated ... as a matter of priority, without political interference".

Costa was replying to "EuroFora"s question on the fact that, after CoE's Committee of Ministers, also CoE's Assembly had just adopted a Resolution on Gongadze murder case, based on an ECHR's judgement of 2005, asking a full Investigation from Ukraine, who has found and condemned  in 10 years of jail 2 executants, but not yet the instigators.

While nothing similar was yet done for dissident Turkish Cypriot Kutlu Adali's murder, with 5 bullets shot at his head out of his Family's home in the territories of Cyprus occupied by Ankara's army, despite another ECHR's judgement of the same year 2005, and despite Turkey's claim that nobody was found among those responsible for the murder, and that there was nothing more to do..

In order to be credible and efficient, CoE's mechanisms shouldn't find a way to at least ask for full investigations of all Journalists' murders anywhere they might be committed, without exceptions ?

adali_gongadze


- "On the larger question that you raised, I'd like to say, since we are in a period of stock-taking on ECHR's 50 Years, that the Court's case-law developed certain concepts ....such as the Positive obligations of States, part of which are also the procedural obligations", started to reply ECHR's President.

 - "Whenever Journalists, Lawyers, Defenders of Human Rights, or even simple Citizens are murdered, the States are held responsible, not only if its their own security forces' agents who committed these murders, but also if they didn't make sufficiently substantial and efficient Investigations", he stressed.

- "I want to strongly underline that we (ECHR) have found in many cases numerous violations of Articles 2 and 3 against States, ....(about) murders or torture, ...because they didn't make enough Investigations in order to try to find and punish those responsible".

- "We (ECHR) do that vis-a-vis all 47 (CoE) Member States, without any discrimination".

"Naturally, the circumstances in each particular case may be differend, and we can't ommit to apply the rules of proof, or the rules of criminal procedure".

"But we try, by all means, to apply these principles of our case-law, to all States", he concluded.

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      Costa's call was strongly supported by several Top CoE MEPs, from various Political areas


- "To investigate the murder of one Journalist, and not of another, looks like Double Standards", denounced the President of EuroLeft Group in CoE's Assembly, Dutch MEP Tiny Cox.  

- "What is the reason ? Politics or specificity of a case ? Of course, if Cyprus and Turkey are involved, it's always a Political case"..

- "Murders of Journalists should always be fully investigated, because killing Journalists is not only killing persons, but also killing Free Press".  "We (CoE's Assembly) should do our outmost to help People who are working on Free Press and they are under threat or murdered".

Because for Free Politics, Free Press is a pre-requisitive : Parliamentarians  cannot  function without a Free Press. Not investigating, is not protecting ourselves".

So we should investigate all Journalists' murders : We are talking about Gongadze, about the Cypriot man (Adali), about the Journalist murdered in Moscow one week ago, etc", Cox concluded

- "CoE can' look at these cases differently. CoE can't wear Blinckers  !".
- "If the one is investigated, so has to be also the other. Why there wasn't full investigation ? Why's that ?", wondered British  Socialist MEP, Alan Meale.

- "A good idea" would be to "make a Motion for Resolution", and "join all Journalists' murders. Adali and Gongadze etc", said to "EuroFora" EU Parliament Political affairs Committee's President, Goran Lindbland, ChristianDemocrat MEP from Sweden.


(See also earlier News at "EuroFora" on similar issues).
-------------------------------

ECHR's Statistics on Freedom of Expression :


    Almost Half of condemnations by ECHR for violations of Freedom of Expression in 2008, concern Turkey : 20 out of a total of 48 for all CoE's Member States.

    Russia, Poland, France and Moldova were condemned only 3 times. Romania, Greece, Portugal, 2 times, and the other CoE Member States only 1 time, or none.
--------------------
    During the last Decade : 1998 - 2008, Turkey was condemned for violating Freedom of Expression in ..169 cases, while Austria only in 24.

    France and Moldova in 14 and 13, respectively, closely followed by Russia and Poland with 11 and 10, respectively. The rest of CoE Member States had less than ten condemnations.    
    

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