Rules of Evidence in Human Rights Adjudication

1
Rules of Evidence inHuman Rights Adjudication

• Nordic Research Training Course on Human Rights
  and Evidence
• Saaremaa 2 June 2008

2
Evidentiary assessment invarious human rights
bodies

• International bodies
• Fact-finding vs. adjudicatory bodies
• ECtHR as the main example
• UN bodies
• Different legal basis
• Different composition/expertise?
• Interaction between various bodies
• Domestic courts/tribunals
• Mere reflection of international evidentiary
  rules?
• Additional domestic rules on presumption etc.
• International review of domestic assessments?

3
Issues of evidence in different types of
situations

• Temporal distinction
• Past facts law of evidence
• Future facts law of information
• (Jonas Christoffersen Fair Balance A study of
  proportionality, subsidiarity and primarity in
  the ECHR, Copenhagen/The Hague 2008)
• Substantive distinction
• Negative obligations
• Absolute prohibitions
• Justification of interference
• Positive obligations
• State duty to carry out examination
• Wider margin of appreciation?
• Type of right / intensity of infringement

4
Evidence of past factsbefore the ECtHR

• Free admission and assessment of evidence
• Burden of proof
• No strict burden of production of evidence
• Obligation to cooperate in establishing facts
• Production of evidence by ECtHRs own motion
• Consequences of insufficient evidence?
• Standard of proof
• Beyond reasonable doubt
• Proof without specific evidence
• Presumptions
• Inferences from other evidence or generally known
  facts

5
Cases under ECHR art. 3 individual mistreatment

• General rule physical force against a person
  deprived of liberty only if strictly necessary
  due to his own conduct
• Mistreatment in police custody/detention
• Presumption of causal connection if
• Good state of health at the time of arrest
• Proven injuries at the time of release
• No indication of self-imposed injury or other
  plausible explanation for the cause of injury
  (Tomasi, Selmouni)
• Extended presumption if special reasons for
  delayed reporting/documentation (Balogh)
• Violence during arrest
• Examination of the lawfulness of police action
  and the conduct of the arrested person
• States burden to prove that use of force was not
  excessive (Barta)
• Mistreatment in the context of generalised
  violations
• Account of the victims vulnerable position if
  plausible allegation (Dikme)
• Proportionality test even in exceptional
  circumstances (Isayeva et al.)

6
Cases under ECHR art. 3 general conditions

• Interaction between fact-finding and adjudicatory
  human rights bodies
• ECtHR references to ECPT visit reports
• Inferences from the general findings
• Detention periods between ECPT visits
• Corroboration of complaint
• Partly corresponding government description
  (Dougoz)
• Violation despite no evidence of intention to
  humiliate or debase prisoners (Peers)

7
Cases under ECHR art. 3 future extraterritorial
events

• Protection against refoulement
• Substantial grounds for believing the individual
  to be in
• Real risk of treatment contrary to art. 3
• Conditions for state responsibility
• Foreseeable risk of mistreatment
• Inferences from the states general experience?
• Assessment of evidence
• Individuals situation against background of
  general information
• No special distinguishing features required
  (Salah Sheekh)
• Relevant point in time
• ECtHR ruling
• Actual deportation (cf. Rule 39)
• Sources of information (N. v. Finland)

8
Justification of interferences assessment of
future facts

• Justification of interferences (para. 2 cases)
• Probability of future impact of the action
• Risk inherent in possible inaction by the state
• Relevant and sufficient reasons?
• Interaction between normative and factual aspects
• Importance of the protected interest
• Intensity of the interference
• Importance of the pursued aim
• Assessment of the situation with/out interference
• Certainty of the result
• Expected degree of realisation of the pursued aim