The Theory, Potential and Practice of Procedural Dialogue in the European Convention on Human Rights System 2016 (School of Human Rights Research Series): 77

Description

Dialogue is the new buzzword for the European Convention on Human Rights (Convention) system. Judges throughout Europe have welcomed and encouraged dialogue, and references to the notion have become commonplace at conferences and in academic writing. Yet although the buzz has intensified, exactly why dialogue can be of added value is not often examined. Nor do those who rely on the notion usually explain how exactly it can be operationalised in a practical sense. This volume dissects the common-sense realisation that dialogue adds value to the Convention system, within which the State Parties, the Court, the Committee of Ministers (Committee), the Parliamentary Assembly (Assembly), and the Commissioner for Human Rights (Commissioner) interact. The question of why dialogue should occur is answered through an account of the way the system is established and how it functions, and of the developments and reform it has experienced. The second aim of the volume is to establish whether Convention dialogue does indeed live up to its potential added value. For this purpose, 26 procedures and 'procedural steps' are investigated in the light of 'indicators of dialogue'. The procedures include third-party interventions, the pilot-judgment procedure, and the Committee's Human Rights meetings. Both the procedures' dialogic potential on paper and their 'dialogicness' in practice are assessed, based in part on interviews with inter alia the Court's judges, agents representing the states before the Court, and persons monitoring the execution of the Court's judgments. This volume will be of use to those who are interested in the notion of (Convention) dialogue and its theoretical underpinnings, and those who would like to know more about Convention-related procedures, the execution of the Court's judgments, and the role that the Assembly and the Commissioner can play in the Convention system. (Series: School of Human Rights Research, volume 77) [Subject: Human Rights Law, European Law] Acknowledgements Contents List of Abbreviations Chapter I Introduction 1 An Example of Dialogue: The Hearsay Saga 2 Dialogue 3 This Research 3.1 Relevance 3.2 Research Questions32F 3.3 Method34F 3.4 Delineation – A Working Definition of ‘Convention Dialogue’ 4 Outline Chapter II A Characterisation of the Convention System 1 The Establishment of the Convention System 1.1 Unity and Human Rights 1.2 Drafting the Convention 2 The Functioning of the Convention System 2.1 The Object and Purpose 2.2 Interlocutors 2.2.1 States Parties 2.2.2 The Court 2.2.3 The Committee 2.2.4 The Assembly 2.2.5 The Commissioner 2.3 The Principle of Subsidiarity 2.3.1 Background 2.3.2 Role of the Court and the States Parties 2.3.3 Manifestations 2.4 The Principle of Effectiveness 2.4.1 Background 2.4.2 Role of the Court and the States Parties 2.4.3 Manifestations 3 The Convention System in Development 3.1 The Achievements of the Convention System 3.2 An Expanded Catalogue of Rights and an Increased Scope of Protection 3.3 The Confirmation of the Right to Individual Petition 3.4 Enlargement: From 13233F to 47 States Parties 3.5 The Increased Workload 3.6 The Changed Subject Matter of the Court’s Judgments 3.6.1 Grave and Widespread Violations 3.6.2 Transitional Violations 3.6.3 Repetitive Violations 3.7 Implementation and Execution Problems 3.8 Legitimacy Questions 3.9 The Essence of the Developments 4 The Convention System under Reform 4.1 Protocol 11 4.2 Protocol 14 4.3 Questioning the Object and Purpose of the Convention System 4.4 Protocols 15 and 16 and Beyond 4.5 The Essence of the Reform 5 A Characterisation of the Convention System 5.1 The Functioning of the Interlocutors 5.1.1 States Parties 5.1.2 The Court 5.1.3 The Committee 5.2 The Characteristics of the Convention System 5.2.1 Internal and External Tension 5.2.2 Sharing Responsibilities 5.2.3 Interconnectedness between National and European level 5.2.4 Diversity 5.2.5 Lack of Final Power Chapter III A Characterisation of Dialogue 1 Dialogue as a Descriptive and Normative Tool 1.1 In National Constitutional Settings 1.1.1 Background 1.1.2 Dialogue as a Descriptive Tool 1.1.3 Dialogue as a Normative Tool 1.1.4 Implications of Dialogue 1.1.5 Dialogue and Deference 1.1.6 Dialogue in a Broader Perspective 1.2 In the EU 1.2.1 Background 1.2.2 Dialogue as a Descriptive Tool 1.2.3 Dialogue as a Normative Tool 1.3 In Transjudicial Communication 1.3.1 Background 1.3.2 Dialogue as a Descriptive Tool 1.3.3 Dialogue as a Normative Tool 1.3.4 Dialogue and Dialectical Review 1.4 Comments 2 Dialogue Prerequisites, Facilitators and Instruments 2.1 Prerequisites 2.1.1 Willingness 2.1.2 Different Viewpoints 2.1.3 Common Ground of Understanding 2.1.4 Time 2.2 Facilitators 2.2.1 Dynamic Distribution of Power 2.2.2 Deference 2.2.3 Comparative Methods of Interpretation 2.2.4 Procedural Approach 2.2.5 Remedial Discretion 2.3 Instruments 2.3.1 Pro-dialogic Rules 2.4 Comments Chapter IV The Convention System and Dialogue 1 The Necessity of Cooperation 1.1 Lack of Coercive Means to Compel Convention Implementation 1.2 Sharing Responsibilities 2 Internal Tension 2.1 Sources 2.1.1 Countermajoritarian Difficulty 2.1.2 Knowledge Gap Difficulty 2.1.3 Unifying Diversity Difficulty 2.2 The Risk of Conflict and Decreased Effectiveness 2.3 The Preventability of Conflict 2.4 Internal Tension as a Positive Good 2.5 The Potential of the Convention System to Channel Internal Tension away from Conflict 2.6 The Ever-present Possibility of Conflict 2.7 The Characteristics of Internal Tension 3 External Tension 3.1 Sources 3.1.1 Need for Long-term Change 3.1.2 Limited Usefulness of Increasing Coercion and Power 3.2 Decreased Effectiveness 3.3 The Eliminability of External Tension 3.4 External Tension Reinforcing Internal Tension 3.5 The Characteristics of External Tension 4 The Added Value of Dialogue in the Convention System 4.1 The Notion of Dialogue 4.1.1 As Used for Other Systems 4.1.2 As Used for the Convention System 4.1.3 Appropriateness of the Notion 4.2 The Added Value 4.2.1 Preliminary Observations 4.2.2 Observations on the Added Value 4.3 The Possible Functioning of Dialogue 4.3.1 Cooperation 4.3.2 Internal Tension 4.3.3 External Tension 4.4 Prerequisites for Convention Dialogue820F 4.4.1 Ability and Willingness822F 4.4.2 Different Viewpoints and a Common Ground of Understanding832F 4.4.3 Time and Clarity 5 Researching Dialogue in the Convention System 5.1 Hypotheses 5.2 The Research Questions of Part 2 and Part 3 5.3 Procedures of Interest 5.3.1 Why Procedures? 5.3.2 What are Procedures? 5.3.3 Which Procedures? 5.4 A Definition of Dialogue 5.5 Indicators of Dialogue 5.5.1 Indicator 1: Procedural Opportunities for Involvement of All Relevant Interlocutors 5.5.2 Indicator 2: Sharing Responsibilities 5.5.3 Indicator 3: Mutual Understanding 5.5.4 Indicator 4: Balanced Decision-making 5.5.5 Indicator 5: Reason-giving 5.5.6 Indicator 6: Room for a Response 5.5.7 Indicator 7: Preventing, Mitigating and Ending Conflict 5.6 Applying the Indicators of Dialogue 5.6.1 Paper: The Dialogic Potential 5.6.2 Practice: The Dialogicness Chapter V The Dialogic Potential of Procedures in the (Pre-)Merits Phase 1 Introduction to the (Pre-)Merits Phase and its Procedures 1.1 Communication 1.2 Interim Measures 1.3 Article 37 Strike-out Procedures Generally 1.3.1 Friendly Settlements 1.3.2 Article 37(1)(b) Strike-out Decisions 1.3.3 Unilateral Declarations 1.3.4 Article 37(1)(c) Strike-out Decisions 1.4 Hearings 1.5 Relinquishment 1.6 Third-party Interventions 1.7 Investigations 1.8 Judgments 1.9 Referral 2 Applying the Indicators of Dialogue 2.1 Indicator 1: Procedural Opportunities for Involvement of All Relevant Interlocutors 2.2 Indicator 2: Sharing Responsibilities 2.3 Indicator 3: Mutual Understanding 2.4 Indicator 4: Balanced Decision-making 2.5 Indicator 5: Reason-giving 2.6 Indicator 6: Room for a Response 2.7 Indicator 7: Preventing, Mitigating and Ending Conflict 3 Conclusion: The Dialogic Potential of Procedures in the (Pre-)Merits Phase Chapter VI The Dialogic Potential of Procedures in the Execution Phase 1 Introduction to the Execution Phase and Its Procedures 1.1 Article 41-awards 1.2 Action Plans/Reports 1.3 DH Meetings 1.4 Bi- and Multilateral Meetings 1.5 Requests for Interpretation 1.6 Infringement Proceedings 1.7 Assembly Questions and Recommendations 1.8 Commissioner Country Visits and Reports 1.9 Decisions and Interim Resolutions 1.10 Final Resolutions 1.11 Individual Follow-up Cases 1.12 General Follow-up Cases 2 Applying the Indicators of Dialogue 2.1 Indicator 1: Procedural Opportunities for Involvement of All Relevant Interlocutors 2.2 Indicator 2: Sharing Responsibilities 2.3 Indicator 3: Mutual Understanding 2.4 Indicator 4: Balanced Decision-making 2.5 Indicator 5: Reason-giving 2.6 Indicator 6: Room for a Response 2.7 Indicator 7: Preventing, Mitigating and Ending Conflict 3 Conclusion: The Dialogic Potential of Procedures in the Execution Phase Chapter VII The Dialogic Potential of the Pilot-judgment Procedure 1 Introduction to the Pilot-judgment Procedure 1.1 Run-up to the Pilot Judgment 1.2 Content of the Pilot Judgment 1.3 After the Pilot Judgment 2 Applying the Indicators of Dialogue 2.1 Indicator 1: Procedural Opportunities for Involvement of All Relevant Interlocutors 2.1.1 The Court 2.1.2 The Respondent State 2.1.3 The Committee 2.2 Indicator 2: Sharing Responsibilities 2.2.1 Court – Respondent State 2.2.2 Court – Committee 2.3 Indicator 3: Mutual Understanding 2.4 Indicator 4: Balanced Decision-making 2.5 Indicator 5: Reason-giving 2.6 Indicator 6: Room for a Response 2.7 Indicator 7: Preventing, Mitigating and Ending Conflict 3 Conclusion: The Dialogic Potential of the Pilot-judgment Procedure Chapter VIII Conclusions: The Dialogic Potential of Convention-related Procedures 1 Indicator 1: Procedural Opportunities for Involvement of All Interlocutors 2 Indicator 2: Sharing Responsibilities 3 Indicator 3: Mutual Understanding 4 Indicator 4: Balanced Decision-making 5 Indicator 5: Reason-giving 6 Indicator 6: Room for a Response 7 Indicator 7: Preventing, Mitigating and Ending Conflict 8 Overview of the Findings per Procedure Chapter IX The Dialogicness of Procedures in the (Pre-)Merits Phase 1 The Functioning of the Procedures in Practice 1.1 Communication 1.1.1 Methodology 1.1.2 Contacts Prior to and After Communication 1.1.3 The Court’s Questions 1.1.4 The Respondent State’s Observations 1.2 Friendly Settlements 1.2.1 Frequency and Areas of Use 1.2.2 Reasons (not) to Settle 1.2.3 The Court Placing Itself at the Disposal of the Parties 1.2.4 Terms of Friendly Settlements 1.2.5 The Human Rights Condition 1.2.6 Restoral of Application 1.3 Article 37(1)(b) Strike-out Decisions 1.3.1 Frequency and Areas of Use 1.3.2 Initiative 1.3.3 The Human Rights Condition and other Criteria 1.3.4 Decision or Judgment; Award of Costs; Restoral of Application 1.4 Unilateral Declarations 1.4.1 Frequency and Areas of Use 1.4.2 Reasons to (not) Issue a Unilateral Declaration 1.4.3 The Human Rights Condition and other Criteria 1.4.4 Extra Message from the Court 1.4.5 Decision or Judgment; Award of Costs; Restoral of Application 1.5 Article 37(1)(c) Strike-out Decisions 1.5.1 Frequency and Areas of Use 1.5.2 The Human Rights Condition 1.5.3 Decision or Judgment; Award of Costs; Restoral of an Application 1.6 Hearings 1.6.1 Methodology 1.6.2 Frequency and Areas of Use 1.6.3 Initiative 1.6.4 Reasons for Holding a Hearing 1.6.5 The Court’s Questions 1.6.6 The Respondent State’s Observations 1.6.7 Third-parties’ Observations 1.7 Third-party Interventions 1.7.1 Methodology 1.7.2 State Article 36(1) Interventions 1.7.3 State Article 36(2) Interventions 1.7.4 The Commissioner’s Interventions 1.7.5 The Assembly’s Interventions 1.8 Judgments 1.8.1 Reliance on Others for the Facts 1.8.2 Reliance on Others for the Merits 1.8.3 Reasoning 1.8.4 Scope 1.8.5 Separate Opinions 1.9 Referral 1.9.1 Frequency and Areas of Use 1.9.2 Reasons for Submitting a Request 1.9.3 Reasons for (not) Accepting a Request 1.9.4 Scope of a Case before the Grand Chamber 1.9.5 Chamber and Grand Chamber Judgments Compared 2 Applying the Indicators of Dialogue 2.1 Indicator 1: Procedural Opportunities for Involvement of All Relevant Interlocutors 2.2 Indicator 2: Sharing Responsibilities 2.3 Indicator 3: Mutual Understanding 2.4 Indicator 4: Balanced Decision-making 2.5 Indicator 5: Reason-giving 2.6 Indicator 6: Room for a Response 2.7 Indicator 7: Preventing, Mitigating and Ending Conflict 3 Conclusion: The Dialogicness of Procedures in the (Pre-) Merits Phase Chapter X The Dialogicness of Procedures in the Execution Phase 1 Introduction to the Practice of the Execution 1.1 The Secretariat 1.2 The Execution Department 1.3 Outline of Certain Aspects of the Supervisory Process 1.3.1 Procedure 1.3.2 Grouping Cases Together 1.3.3 Standards for Evaluation 1.3.4 Sources for Evaluation 2 The Functioning of the Procedures in Practice 2.1 Article 46-indications 2.1.1 Frequency and Areas of Use 2.1.2 Reasons to Make an Article 46-indication 2.1.3 Content 2.1.4 Place of the Indication 2.1.5 Effects of the Indication 2.2 Action Plans/Reports 2.2.1 Methodology 2.2.2 Submissions 2.2.3 Content 2.2.4 Quality 2.3 DH Meetings 2.3.1 Frequency 2.3.2 Preparation 2.3.3 Selection 2.3.4 Attendees 2.3.5 The Meeting 2.4 Bi- and Multilateral Meetings 2.4.1 Frequency 2.4.2 Preparation 2.4.3 Attendees 2.4.4 Bilateral Meetings 2.4.5 Multilateral Meetings 2.5 Requests for Interpretation 2.6 Infringement Proceedings 2.7 Assembly Questions and Recommendations 2.7.1 Methodology 2.7.2 Frequency 2.7.3 Content of the Questions 2.7.4 The Committee’s Reply to Questions 2.7.5 Influence of the Questions 2.7.6 Content of the Recommendations 2.7.7 Content of the Reports 2.7.8 The Committee’s Reply to Recommendations 2.7.9 Influence of the Recommendations 2.8 Commissioner Country Visits and Reports 2.8.1 Frequency and Areas of use 2.8.2 Content 2.9 Decisions and Interim Resolutions 2.9.1 Methodology 2.9.2 Frequency 2.9.3 Preparation 2.9.4 Content 2.10 Individual Follow-up Cases 2.10.1 Frequency and Areas of Use 2.10.2 Conditions 2.10.3 Content 2.10.4 Role of the Interlocutors 2.10.5 The Committee’s Reliance on Individual Follow-up Judgments 2.11 General Follow-up Cases 2.11.1 Frequency and Areas of Use 2.11.2 Content 2.11.3 The Committee’s Reliance on General Follow-up Judgments 3 Applying the Indicators of Dialogue 3.1 Indicator 1: Procedural Opportunities for Involvement of All Relevant Interlocutors 3.2 Indicator 2: Sharing Responsibilities 3.3 Indicator 3: Mutual Understanding 3.4 Indicator 4: Balanced Decision-making 3.5 Indicator 5: Reason-giving 3.6 Indicator 6: Room for a Response 3.7 Indicator 7: Preventing, Mitigating and Ending Conflict 4 Conclusion: The Dialogicness of Procedures in the Execution Phase Chapter XI The Dialogicness of the Pilot-judgment Procedure 1 The Functioning of the Pilot-judgment Procedure in Practice 1.1 Methodology 1.2 Frequency and Areas of Use 1.3 Run-up to the Pilot Judgment 1.3.1 Initiative 1.3.2 Views of the Parties 1.3.3 Conditions for Applying the Pilot-judgment Procedure 1.4 Content of the Pilot Judgment 1.4.1 The Nature of the Problem 1.4.2 Remedial Measures 1.4.3 Ongoing Reform 1.4.4 Time Limit 1.4.5 Just Satisfaction 1.4.6 Similar Applications 1.5 After the Pilot Judgment 1.5.1 The Court’s Involvement 1.5.2 The Committee’s Involvement 2 Applying the Indicators of Dialogue 2.1 Indicator 1: Procedural Opportunities for Involvement of All Relevant Interlocutors 2.1.1 The Court 2.1.2 The Respondent State 2.1.3 The Committee 2.2 Indicator 2: Sharing Responsibilities 2.2.1 Court – Respondent State 2.2.2 Court – Committee 2.3 Indicator 3: Mutual Understanding 2.4 Indicator 4: Balanced Decision-making 2.5 Indicator 5: Reason-giving 2.6 Indicator 6: Room for a Response 2.6.1 The Court 2.6.2 The Respondent State 2.7 Indicator 7: Preventing, Mitigating and Ending Conflict 3 Conclusion: The Dialogicness of the Pilot-judgment Procedure Chapter XII Conclusions: The Dialogicness of Convention-related Procedures 1 Indicator 1: Procedural Opportunities for Involvement of All Interlocutors 2 Indicator 2: Sharing Responsibilities 3 Indicator 3: Mutual Understanding 4 Indicator 4: Balanced Decision-making 5 Indicator 5: Reason-giving 6 Indicator 6: Room for a Response 7 Indicator 7: Preventing, Mitigating and Ending Conflict 8 Overview of the Findings per Procedure Chapter XIII Conclusions and Recommendations 1 Main Findings 1.1 Part 1 1.1.1 A Characterisation of the Convention System 1.1.2 A Characterisation of Dialogue 1.1.3 The Added Value of the Notion of Dialogue to the Convention System 1.2 Part 2 and Part 3 2 Comparison between Dialogic Potential and Dialogicness in Practice 2.1 Findings per Procedure Compared 2.1.1 Procedures in the (Pre-)Merits Phase 2.1.2 Procedures in the Execution Phase 2.1.3 The Pilot-judgment Procedure 2.2 Findings per Indicator Compared 2.2.1 Indicator 1: Procedural Opportunities for Involvement of All Relevant Interlocutors 2.2.2 Indicator 2: Sharing Responsibilities 2.2.3 Indicator 3: Mutual Understanding 2.2.4 Indicator 4: Balanced Decision-making 2.2.5 Indicator 5: Reason-giving 2.2.6 Indicator 6: Room for a Response 2.2.7 Indicator 7: Preventing, Mitigating and Ending Conflict 2.3 General Observations about the Comparison 3 Recommendations 3.1 How to Give the Convention-related Procedures more Dialogic Potential on Paper 3.1.1 Procedures in the (Pre-)Merits Phase 3.1.2 Procedures in the Execution Phase 3.2 How to Make the Convention-related Procedures more Dialogic in Practice 3.2.1 Procedures in the (Pre-)Merits Phase 3.2.2 Procedures in the Execution Phase 3.2.3 The Pilot-judgment Procedure Appendix I Interviewees Research Interviews3141F Appendix II Sample of Questionnaire3142F Appendix III Full Pilot Judgments3143F Summary in English Summary in Dutch Bibliography Index Curriculum Vitae School of Human Rights Research Series