C OMPLAINTS TRAINING WORKSHOP Geneva, Switzerland 6 – 9 May 2008 Choice of Forum Alexander H. E. Morawa, S.J.D. Professor of Law.

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

Treaties

Reservations

Practice

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