COMPLAINTS TRAINING WORKSHOP Geneva, Switzerland 6

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COMPLAINTS TRAINING WORKSHOPGeneva,
Switzerland6 9 May 2008

• Choice of Forum
• Alexander H. E. Morawa, S.J.D.
• Professor of Law

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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

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What Choices?

• Exclusive litigation strategy
• Alternative strategies
• successive litigation
• parallel litigation
• split litigation

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Exclusive Litigation
International Petition
One or more victims
Admissibility Review
Decision on the Merits
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Successive Litigation
International Petition 1
International Petition 1
Admissible
Inadmissible
No Violation
International Petition 2
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Parallel Litigation
International Petition 1
International Petition 2
Admissibility Review
Admissibility Review
Are parallel proceedings allowed?
Admissible
Inadmissible
Decision on the Merits
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Split Litigation IScenario

• 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

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Split Litigation I
International Petition 1
Extraditing/Deporting State
Transit State
Receiving State
International Petition 2
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Split Litigation I
Victim leaves territorial reach of HR system 1
International Petition 1
Extraditing/Deporting State
Transit State
Receiving State
International Petition 2
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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
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Split Litigation IIScenario

• 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

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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
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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)

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Factors Determining Forum Choices

• Rights-Related
• Covered right (precision vs. generality)
• Substance of case law
• Volume of case law (legal certainty)

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Factors Determining Forum Choices

• Procedure-Related
• Requirements of form
• Admissibility criteria
• Requirements of evidence
• Option of an oral hearing

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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

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Factors Determining Forum Choices

• Factual Circumstances (Examples)
• Availability of sources (primary and secondary)
• Accessibility of the international procedure
  (and the petitions team)

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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.)

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Factors Determining Forum Choices

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

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What precludes forum shopping?

• The treaties(CCPR OP 1, art. 5 (2) (a) CAT,
  art. 22 (5) (1), etc.)
• Reservations
• Practice

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Treaties
Reservations
Practice
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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))

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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))
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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.

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The Practice

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

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What is substantially the same petition?

• Victims
• Respondent states
• Facts
• Rights
• Complaints

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What is substantially the same petition?

• Submission?
• Consideration?
• Decision on the Merits?

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Creative Litigation Strategies Using Forum Choice

• Examples

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Litigation Crossing Human Rights Borders A Case
of Past TortureCase 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

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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