c omplaints training workshop geneva, switzerland 6 – 9 may 2008 choice of forum alexander h. e....
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CCOMPLAINTS TRAINING OMPLAINTS TRAINING WORKSHOPWORKSHOP
Geneva, SwitzerlandGeneva, Switzerland6 – 9 May 20086 – 9 May 2008
Choice of ForumChoice of Forum
Alexander H. E. Morawa, S.J.D.Alexander H. E. Morawa, S.J.D.Professor of LawProfessor of Law
What is Forum Choice? What is Forum Choice?
Selection amongst alternative Selection amongst alternative proceduresprocedures
Precondition: Several possible Precondition: Several possible remedies and parallel or remedies and parallel or corresponding rights in several corresponding rights in several treatiestreaties
Concerns parallel and successive Concerns parallel and successive international procedures, possibly international procedures, possibly also domestic onesalso domestic ones
What Choices?What Choices?
Exclusive litigation Exclusive litigation strategystrategy
Alternative strategiesAlternative strategies successive litigationsuccessive litigation parallel litigationparallel litigation ““split” litigationsplit” litigation
Exclusive LitigationExclusive Litigation
International Petition
Admissibility Review
Decision on the Merits
One or more
victims
Successive LitigationSuccessive Litigation
International Petition 1
InternationalPetition 1
InadmissibleAdmissible
No Violation
InternationalPetition 2
Parallel LitigationParallel Litigation
International Petition 1 International Petition 2
Admissibility Review Admissibility Review
Inadmissible
Admissible
Decision on the Merits
Are parallel
proceedings
allowed?
„„Split“ Litigation ISplit“ Litigation IScenarioScenario
Victim is at risk of being returned from Victim is at risk of being returned from Sending State via Transit State to Sending State via Transit State to Receiving StateReceiving State
Faces threat of torture in Receiving StateFaces threat of torture in Receiving State Remedies in Sending State exhaustedRemedies in Sending State exhausted
„„Split“ Litigation ISplit“ Litigation I
Extraditing/Deporting
State
TransitState
ReceivingState
International Petition 1
International Petition 2
„„Split“ Litigation ISplit“ Litigation I
Extraditing/Deporting
State
TransitState
ReceivingState
International Petition 1
International Petition 2
Victim leaves
territorial reach of HR
system 1
„„Split“ Litigation ISplit“ Litigation I
Extraditing/Deporting
State
TransitState
ReceivingState
International Petition 1
International Petition 2Aim: Preventingdeportation or
extradition
Aim: Preventingor remedying
torture
„„Split“ Litigation IISplit“ Litigation IIScenarioScenario
Victim is subjected to inhuman prison Victim is subjected to inhuman prison conditions and is being tortured during conditions and is being tortured during interrogationinterrogation
Victim’s confession is admitted at trial Victim’s confession is admitted at trial despite claim of torture and without despite claim of torture and without investigation of her claiminvestigation of her claim
Domestic remedies are exhaustedDomestic remedies are exhausted State concerned has ratified Inter-State concerned has ratified Inter-
American Convention on Human Rights American Convention on Human Rights and CATand CAT
„„Split“ Litigation IISplit“ Litigation II
One Victim
Claim 1:Prison conditions;
torture; lack of remedyand investigation
Claim 2:No fair trial
due to admissionof confession
CAT Inter-Am.Comm.H.R.
Factors Determining Factors Determining Forum ChoicesForum Choices
Formal Preconditions not Formal Preconditions not Subject to ChoiceSubject to Choice
Jurisdiction (treaty ratification Jurisdiction (treaty ratification and acceptance of procedures, date and acceptance of procedures, date of entry into force)of entry into force) Deadlines (e.g. six months - Deadlines (e.g. six months - ECHR)ECHR) Substance and scope of rights Substance and scope of rights (except in case of “expansion (except in case of “expansion through litigation” strategy)through litigation” strategy)
Factors Determining Factors Determining Forum ChoicesForum Choices
Rights-RelatedRights-Related
Covered right (precision vs. Covered right (precision vs. generality)generality) Substance of case lawSubstance of case law Volume of case law (legal Volume of case law (legal certainty)certainty)
Factors Determining Factors Determining Forum ChoicesForum Choices
Procedure-RelatedProcedure-Related Requirements of formRequirements of form Admissibility criteriaAdmissibility criteria Requirements of evidenceRequirements of evidence Option of an oral hearingOption of an oral hearing
Factors Determining Factors Determining Forum ChoicesForum ChoicesOutcome-RelatedOutcome-Related
Legal value of result (binding Legal value of result (binding effect)effect) Awards of compensationAwards of compensation, , including punitive damagesincluding punitive damages Success rate (overall and case-Success rate (overall and case-specific, real or perceived)specific, real or perceived) Enforceability and state Enforceability and state compliancecompliance
Factors Determining Factors Determining Forum ChoicesForum Choices
Factual CircumstancesFactual Circumstances (Examples)(Examples)
Availability of sAvailability of sources (primary ources (primary and secondary)and secondary) Accessibility of the international Accessibility of the international procedure (and the petitions team)procedure (and the petitions team)
Factors Determining Factors Determining Forum ChoicesForum Choices
Strategy and ExpectationsStrategy and Expectations Client’s preferences (if Client’s preferences (if applicable)applicable) Sponsor’s preferences (if Sponsor’s preferences (if applicable)applicable) Part of a larger litigation Part of a larger litigation strategy?strategy? Side effects of litigation Side effects of litigation (publicity etc.)(publicity etc.)
Factors Determining Factors Determining Forum ChoicesForum Choices
External/Cultural FactorsExternal/Cultural Factors Knowledge/outreachKnowledge/outreach Cultural/legal traditionCultural/legal tradition Prior exposure and respect for Prior exposure and respect for procedureprocedure Compatibility of domestic and Compatibility of domestic and international procedureinternational procedure
What precludes forum What precludes forum shopping?shopping?
The treatiesThe treaties(CCPR OP 1, art. 5 (2) (a); (CCPR OP 1, art. 5 (2) (a); CAT, art. 22 (5) (1), etc.)CAT, art. 22 (5) (1), etc.)
ReservationsReservations PracticePractice
The TreatiesThe Treaties
The Committee shall not The Committee shall not consider any communication consider any communication from an individual unless it has from an individual unless it has ascertained that … [t]he same ascertained that … [t]he same matter is not being examined matter is not being examined under another procedure of under another procedure of international investigation or international investigation or settlement. (settlement. (CCPR OP 1, art. 5 (2) CCPR OP 1, art. 5 (2) (a)(a)))
The Committee shall not The Committee shall not consider any communication consider any communication from an individual under this from an individual under this article unless it has article unless it has ascertained that … [t]he same ascertained that … [t]he same matter has not been, and is not matter has not been, and is not being examined under another being examined under another procedure of international procedure of international investigation or settlement. investigation or settlement. (CAT, art. 22 (5) (1))(CAT, art. 22 (5) (1))
The ReservationsThe Reservations
Aim at further restricting forum Aim at further restricting forum choices with respect to certain choices with respect to certain European states.European states.
Prohibit “successive” in addition Prohibit “successive” in addition to “parallel” complaints to to “parallel” complaints to regional and UN bodies.regional and UN bodies.
Have been accepted by the Have been accepted by the Human Rights Committee.Human Rights Committee.
The PracticeThe Practice
Interprets the treaty Interprets the treaty provisions and determines provisions and determines options for future applicants.options for future applicants.
Clarifies matters only partly.Clarifies matters only partly. Is still developing.Is still developing.
What is „substantially What is „substantially the same“ petition?the same“ petition?
VictimsVictims Respondent statesRespondent states FactsFacts RightsRights ComplaintsComplaints
What is „substantially What is „substantially the same“ petition?the same“ petition?
Submission?Submission? Consideration?Consideration? Decision on the Merits?Decision on the Merits?
Creative Litigation Creative Litigation Strategies Using Forum Strategies Using Forum
ChoiceChoice
ExamplesExamples
Litigation Crossing Human Litigation Crossing Human Rights Borders – A Case of Rights Borders – A Case of
Past TorturePast TortureCase ScenarioCase Scenario
Victim was tortured in Country of OriginVictim was tortured in Country of Origin Fled to Country of Residence via Transit Fled to Country of Residence via Transit
CountryCountry Country of Origin has accepted CAT procedureCountry of Origin has accepted CAT procedure No domestic remedies against torture or to No domestic remedies against torture or to
provide redress for torture victims available in provide redress for torture victims available in Country of OriginCountry of Origin
Country of Residence has ratified European Country of Residence has ratified European Convention on Human Rights and CCPRConvention on Human Rights and CCPR
Litigation Crossing Human Litigation Crossing Human Rights Borders – A Case of Rights Borders – A Case of
Past TorturePast TortureDomestic Asylum
ApplicationCountry ofResidence
Country ofResidence
International Petitionagainst Deportation
TransitCountry
International Petitionagainst Deportation
Countryof Origin CAT Petition re: past torture
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