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Inicio 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

Escrito por ACM
04.05.18
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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...

 

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.


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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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    The recent paradox of freezing EU Talks with front-runner Croatia, while continuing controversial EU - Turkey talks, despite Zagreb's acceptance of Refugees' Human Rights to return, that Ankara refuses fex. in Cyprus, while both have "Good Neighborhood" problems vis a vis Slovenia, or Greece, Cyprus and Armenia respectively, can it be justified by the non-fullfilment of EU criteria, as Slovenia says, or, is it "Double Standards" ?    

The question became unavoidable after statements by Presidents of Slovenia and Croatia, Tuerk and Mesic, respectively, to "EuroFora", exclusively or among Strasbourg's journalists this week at the CoE, on the sidelines of its 2009 Summer University for Political Schools, which topically brought them together as successive key-note speakers.


    Comming only a few Months before EU checks Turkey's compliance to its commitments on Cyprus, etc., scheduled for December 2009, this obviously has a special importance for the coherence of EU Enlargement's principles.

     Suspension of EU Negotiations is a normal consequence in case of a Candidate Country's failure to fullfil EU Conditions, such as "Good Neighborhood relations", stressed at first Slovenian President Danilo Tuerk, current CoE's chair.

    But, regarding EU's Criteria,  there shouldn't be any "Double Standards",  reacted Croatian President Stjepan Mesic, commenting the fact that Turkey's controversial EU negotiations continue, while they were recently "freezed" in the case of Croatia, an "unquestionably European Country", which oficially accepts to respect Refugees Human Rights, contrary to Ankara's notorious refusals or reluctance.                                       

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                                                                                                                                                                                                                                                                                                                                                           - "EU itself has set as a Criterium (for EU Enlargement) the "Good Neighborhood relations",  and their absence justifies the "Suspension" EU Negotiations, (f.ex. with Croatia), because of a Border dispute affecting the territorial integrity of an EU Member Country, stressed Slovenian President, Danilo Tuerk, CoE's Chairman in office (May - November 2009), speaking to Journalists in Strasbourg including "EuroFora".    

Questioned earlier what "consequences on EU's Enlargement policy" can have the "Ban on EU Membership Negotiations", imposed to Croatia, Tuerk replied that "this question comes down to the fulfillement of (EU) Criteria for membership. One has to look at each Candidate Country ., from the point of view whether it fullfils the Criteria that EU has set. One of them are Good Neighborhood Relations, I'd like to remind. And also, there are other factors, such as Justice, Home affairs, Rule of Law, and others".


    - "Now, ..Candidate Countries are at Different Levels of fulfillement of Criteria", he observed.

    - " Croatia is obviously the closest to that. I'm rather optimistic : I think that in the coming Months we'll have an opportunity to look at all these issues constructively and hopefully we'll be able to make progress". "My main concern, at this point, is the situation in Bosnia : We haven't seen enough progres domesticaly. We haven't seen enough during ..political parties within their country.We need a New Energy, a new energetic move towards the Candidature for EU membership. "Other (Western Balkan) Countries (Serbia, Montenegro, FYROM, Albania) have been making soaring Progress, and I think that they should be ready, in a few Years, for the Candidate status".

    - "As far as the Western Balkans are concerned, .. nobody should be left outside" the EU, Slovenian's President concluded, ommitting to mention Turkey's controversial EU bid.

    - "This process may be seen as Slow, but..  Slovenia has also has also been exposed to various "Booms of Slowness" in our accession period. But now we can say that the process was relatively quick, because changes which occur after becoming EU member, are quite large, and they require proper Preparations before the (EU) membership becomes a new factor, an impacting line for a new (EU) member country".
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EU "Solidarity" ?
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Slovenian statements made some participants from certain 3rd Countries as FYROM, etc. claim that "the Principle of EU Solidarity" would "produce a.. rising European Union Nationalism (sic !), against Non-EU Countries", as they said, asking unhappy foreign countries to form a "bloc" to exert pressure on the EU...    

But Croatian President Stjepan Mesic dismissed that, supporting "EU Integration", "after the Economy also in Political" issues, as "the achievement" of our times. In EU there is "diversity, but it's United", he stressed, "EU has to be United so that it can become a central factor of Peace" also at the surrounding areas, he replied.

croatian_president_mesic_ 

Speaking later exclusively to "EuroFora", the experienced twice President of Croatia, former President of the International "Non-Aligned" movement, denounced "Double Standards" in the way EU treats recently Croatia compared to Turkey :   

 - "I think that there shouldn't be Double Standards", stressed the Croatian President, in reply to a Question comparing the freeze of EU - Croatia talks, with the continuation of EU - Turkey talks, despite the fact that Croatia is an "unquestionably European country", while Turkey's EU bid is notoriously controversial.


    Mesic was reacting to the observation that, even if he confirmed his "respect of Refugees' Human Rights to return, etc. (See infra), nevertheless, EU talks are suspended with Croatia.. While for oher, controversial candidates, who refuse to respect Refugees' Rights to return, etc., as fex. Turkey does in occupied Cyprus and elsewhere, EU negotiations continue".

    - "I believe that Croatia's accession will confirm that all European Countries who fulfill all of the Conditions and achieve European Standards, have to join the EU. There shouldn't be any Double Standards", went on to add in reply President Mesic.

    In this relation, Croatia's President found "of paramount importance", CoE's "mechanisms enforcing ECHR's judgements"
    
    - "On Refugees and Displaced persons, the process will be completed only after the last person demanding to return will be allowed to do so !", President Mesic Croatia stressed earlier, setting a general standard of obvious importance also for otherr candidates, as f.ex. Turkey, often accused to exclude or heavily restrict Greek Cypriot Displaced persons' return to their Family Homes and ancestral land, provoke difficulties to Turkish-Kurd IDPs return to their home regions at the South-East, etc.

    Some "2.000 People are still reported Missing" in former Yugoslavia, for some Years, (as in Cyprus, modern Europe's oldest case, for 3 Decades. Nagorno-Karabach, Tcecnya in Russia, etc, more recently), and Investigations "will only be completed after establishing the fate of the last one of them", he added.
    
    Speaking earlier on "War Crimes", President Mesic stressed that "Leaders are responsible for (the) Wars (of the Past), not the People", and called against Impunity :  "Individuals have to be held Responsible for Crimes. International Penal Tribunals have to persecute those individuals", perpetrators of War Crimes, he underlined.

    Such statements naturally made Mesic rather popular at ECHR, whose President, French EuroJudge, Professor Jean-Paul Costa, looked particularly smiling when he welcomed him later on Wednesday afternoon, after Slovenian President Daniko Tuerk earlier this week.
           

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