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COMPLAINTS TRAINING WORKSHOP Geneva, Switzerland 6

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Faces threat of torture in Receiving State. Remedies in Sending State exhausted ' ... Crossing Human Rights Borders A Case of Past Torture. Domestic Asylum ... – PowerPoint PPT presentation

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Title: COMPLAINTS TRAINING WORKSHOP Geneva, Switzerland 6


1
COMPLAINTS TRAINING WORKSHOP Geneva,
Switzerland 6 9 May 2008
  • Choice of Forum
  • Alexander H. E. Morawa, S.J.D.
  • Professor of Law

2
What is Forum Choice?
  • Selection amongst alternative procedures
  • Precondition Several possible remedies and
    parallel or corresponding rights in several
    treaties
  • Concerns parallel and successive international
    procedures, possibly also domestic ones

3
What Choices?
  • Exclusive litigation strategy
  • Alternative strategies
  • successive litigation
  • parallel litigation
  • split litigation

4
Exclusive Litigation
International Petition
One or more victims
Admissibility Review
Decision on the Merits
5
Successive Litigation
International Petition 1
International Petition 1
Admissible
Inadmissible
No Violation
International Petition 2
6
Parallel Litigation
International Petition 1
International Petition 2
Admissibility Review
Admissibility Review
Are parallel proceedings allowed?
Admissible
Inadmissible
Decision on the Merits
7
Split Litigation I Scenario
  • Victim is at risk of being returned from Sending
    State via Transit State to Receiving State
  • Faces threat of torture in Receiving State
  • Remedies in Sending State exhausted

8
Split Litigation I
International Petition 1
Extraditing/ Deporting State
Transit State
Receiving State
International Petition 2
9
Split Litigation I
Victim leaves territorial reach of HR system 1
International Petition 1
Extraditing/ Deporting State
Transit State
Receiving State
International Petition 2
10
Split Litigation I
Aim Preventing or remedying torture
International Petition 1
Extraditing/ Deporting State
Transit State
Receiving State
Aim Preventing deportation or extradition
International Petition 2
11
Split Litigation II Scenario
  • Victim is subjected to inhuman prison conditions
    and is being tortured during interrogation
  • Victims confession is admitted at trial despite
    claim of torture and without investigation of her
    claim
  • Domestic remedies are exhausted
  • State concerned has ratified Inter-American
    Convention on Human Rights and CAT

12
Split Litigation II
One Victim
Claim 1 Prison conditions torture lack of
remedy and investigation
Claim 2 No fair trial due to admission of
confession
Inter-Am. Comm.H.R.
CAT
13
Factors Determining Forum Choices
  • Formal Preconditions not Subject to Choice
  • Jurisdiction (treaty ratification and
    acceptance of procedures, date of entry into
    force)
  • Deadlines (e.g. six months - ECHR)
  • Substance and scope of rights (except in case
    of expansion through litigation strategy)

14
Factors Determining Forum Choices
  • Rights-Related
  • Covered right (precision vs. generality)
  • Substance of case law
  • Volume of case law (legal certainty)

15
Factors Determining Forum Choices
  • Procedure-Related
  • Requirements of form
  • Admissibility criteria
  • Requirements of evidence
  • Option of an oral hearing

16
Factors Determining Forum Choices
  • Outcome-Related
  • Legal value of result (binding effect)
  • Awards of compensation, including punitive
    damages
  • Success rate (overall and case-specific, real or
    perceived)
  • Enforceability and state compliance

17
Factors Determining Forum Choices
  • Factual Circumstances (Examples)
  • Availability of sources (primary and secondary)
  • Accessibility of the international procedure
    (and the petitions team)

18
Factors Determining Forum Choices
  • Strategy and Expectations
  • Clients preferences (if applicable)
  • Sponsors preferences (if applicable)
  • Part of a larger litigation strategy?
  • Side effects of litigation (publicity etc.)

19
Factors Determining Forum Choices
  • External/Cultural Factors
  • Knowledge/outreach
  • Cultural/legal tradition
  • Prior exposure and respect for procedure
  • Compatibility of domestic and international
    procedure

20
What precludes forum shopping?
  • The treaties (CCPR OP 1, art. 5 (2) (a) CAT,
    art. 22 (5) (1), etc.)
  • Reservations
  • Practice

21
Treaties
Reservations
Practice
22
The Treaties
  • The Committee shall not consider any
    communication from an individual unless it has
    ascertained that the same matter is not being
    examined under another procedure of international
    investigation or settlement. (CCPR OP 1, art. 5
    (2) (a))

23
The Committee shall not consider any
communication from an individual under this
article unless it has ascertained that the
same matter has not been, and is not being
examined under another procedure of international
investigation or settlement. (CAT, art. 22 (5)
(1))
24
The Reservations
  • Aim at further restricting forum choices with
    respect to certain European states.
  • Prohibit successive in addition to parallel
    complaints to regional and UN bodies.
  • Have been accepted by the Human Rights Committee.

25
The Practice
  • Interprets the treaty provisions and determines
    options for future applicants.
  • Clarifies matters only partly.
  • Is still developing.

26
What is substantially the same petition?
  • Victims
  • Respondent states
  • Facts
  • Rights
  • Complaints

27
What is substantially the same petition?
  • Submission?
  • Consideration?
  • Decision on the Merits?

28
Creative Litigation Strategies Using Forum Choice
  • Examples

29
Litigation Crossing Human Rights Borders A Case
of Past Torture Case Scenario
  • Victim was tortured in Country of Origin
  • Fled to Country of Residence via Transit Country
  • Country of Origin has accepted CAT procedure
  • No domestic remedies against torture or to
    provide redress for torture victims available in
    Country of Origin
  • Country of Residence has ratified European
    Convention on Human Rights and CCPR

30
Litigation Crossing Human Rights Borders A Case
of Past Torture
Country of Residence
Domestic Asylum Application
Country of Residence
International Petition against Deportation
Transit Country
International Petition against Deportation
Country of Origin
CAT Petition re past torture
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