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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

Автор 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.

 -------------

+ 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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Swedish Foreign Minister, Carl Bildt, speaking  to "EuroFora", denied rumors on Turkey's attempts to avoid an EU check of its obligations on Cyprus on December 2009 by blackmailing Nicosia to either accept any deal with intransigeant Turkish claims contrary to EU values on the island's political issue, or face threats against the territorial integriy of the EU island, semi-occupied by Ankara's army.

On the contrary, the incoming EU President-in-office, speaking exclusively to "EuroFora", promissed that he will act for EU Council's decisions on December 2009 assessment of Turkey's commitments on Cyprus to be kept.


    Bildt was asked to react to Cyprus' President Christofias' denunciation, earlier this week, that some want to exert "pressure" on Cyprus in order for Turkey to escape from its obligations.

    Avoiding to mention any precise Deadline, Bildt, however, warned about "Consequences" in case of "failure" to reunite Cyprus, but without saying whose responsibility an eventual deadlock might be.  

 Asked by "EuroFora" if there is a risk for "Turkey's commitments to "be forgotten or downgraded", "despite crystal-clear EU Council decisions and EU Parliament's latest Resolution on the assessment to make at the end of this year on Turkey's obligations", according to rumours that, instead of pressing Turkey, on the contrary, there might be "pressure on Cyprus", even "blackmail", as Media reported and President Christofias denounced this week, Bildt denied :

- "No ! ", he clearly replied.


- On the contrary, invited by "EuroFora", to "reassure that the Swedish EU Presidency (7-12/2009) will keep a fair stance, based on principles",  Bildt promised that "we (Swedish EU Presidency) will be very clear on all of the decisions taken by the (EU) Council".

He added, however, that "we have very numerous decisions that have been taken" by EU Council, as if he warned, also, on something else.

- "'I am not aware of any sort of statements coming out today''", Bildt started to say, on our reference to Cyprus' President Christofias" denunciation of Turkish lobby's manoeuvers this week, replying earlier to 'another"EuroFora"'s question during a Press Conference at EU Parliament in Strasbourg.


 - '"I know the issues that you' are concerned with'", he added, remembering  the statements he gave us when Sweden was chairing the PanEuropean CoE on 2008.

- "But, obviously, .. I think that Cyprus' Peace negotiations are extremenly important".

- And "'I think that we are at a unique moment in History, in the sens that both (Cyprus') President Christofias and Mr. Talat (the Turkish Cypriot leader), are personally convinced of the need to overcome the division".

 - "It's 20 Years since the fall of Berlin Wal, but we still have a Capital in Europe (Nicosia) that's divided". ,

- 'I don't that we should loose any time in overcoming that"..

 - ''We should be aware of the fact that success will bring great benefits, but failure, will also have major consequences. There will not be Status Quo' " It's a question of seeking a solution, or entering another situation, which is somewhat difficult to see exactly how that could evolve", he warned.

- "That being said, this is a negotiation for Cyprus itself", Bildt admitted.

 - ''We (EU) can support, the (EU) Commission primarily, be technically helpful, and then, of course, there is a specific role for the UN, when it comes to the Cyprus' situation".  

- "At least so far. It might not be for ever'. Certainly not for ever, but for this period of time", Bildt added, skiping now any reference to concrete threats on UNO's Peace keeping force in face of more than 40.000 Ankara's soldiers, contrary to some Press claims, (See previous NewsReports).


     Replying to another "EuroFora"'s Question,  if anyone might attempt to "impose a Deadline for the conclusion" of Cyprus' Talks on December 2009, Bildt avoided to speak of any precise Time-frame, and indirectly evoked the fact that  35 Years of Turkish Invasion/Occupation obviously durated too long :

'- "If I was from Cyprus, I would say that the Deadline was Yesterday ! '",
Bildt concluded.

Cyprus' Government Spokesman, Stephanou, reportedly pointed out that "a settlement is possible on December if Turkey changes its stance", accepting a solution for the reunification of the island based on UNO resolutiona and EU principles.

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Earlier, EU Chair, Swedish Prime Minister Fredrik Reinfeld, highlighted an "historic opportunity" to "re-Unite" Cyprus according to EU's "basic Values"' (i.e. Human Rights) and 'Rules'", in a last-minute change of his draft speech to EU Parliament in Strasbourg.

    The initial Draft spoke only about "healing" the island.

    Significantly, Reinfeldt linked Cyprus' reunification with Turkey's obligations to respect EU's "Values" and "follow" EU's "common Rules" :

    - What is "called Membership Negotiations" should lead, "at- the end of the day", into "sharing a set of common Basic Values (i.e. Human Rights, Democracy, etc), and following common Rules", stressed Reinfeld from the outset.
    
    - "This is something that those on the Outside (of the EU), are now  contemplating", up "to Ankara", for "a solution" on "Cyprus", observed the EU Chairman, immediately afterwards..  

    - "Both sides of Cyprus have been granted a historic opportunity to together reach an agreement on a solution to re-Unite the island, that has been divided for far too long", said Reinfeldt, modifying his draft text.


-  "The Swedish Presidency will act ...in accordance with Commitments EU has made, on the basis of Criteria that apply", "as a Honest Broker", he promised.    

- "To those on the inside (of the EU), allowing the membership process to become an opportunity to solve protracted disputes, can be tempting", he added.


    "In such cases, we must find solutions that can benefit both sides, and open up a way forward. Otherwise, it would jeopardize the progress we have made towards EU integration", Reinfeldt said.

***

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