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

What is Forum Choice? Selection amongst alternative procedures Selection amongst alternative procedures Precondition: Several possible remedies and parallel or corresponding rights in several treaties Precondition: Several possible remedies and parallel or corresponding rights in several treaties Concerns parallel and successive international procedures, possibly also domestic ones Concerns parallel and successive international procedures, possibly also domestic ones

What Choices? Exclusive litigation strategy Exclusive litigation strategy Alternative strategies Alternative strategies successive litigation successive litigation parallel litigation parallel litigation “split” litigation “split” litigation

Exclusive Litigation International Petition Admissibility Review Decision on the Merits One or more victims

Successive Litigation International Petition 1 International Petition 1 Inadmissible Admissible No Violation International Petition 2

Parallel Litigation International Petition 1International Petition 2 Admissibility Review Inadmissible Admissible Decision on the Merits Are parallel proceedings allowed?

„Split“ Litigation I Scenario Victim is at risk of being returned from Sending State via Transit State to Receiving State Victim is at risk of being returned from Sending State via Transit State to Receiving State Faces threat of torture in Receiving State Faces threat of torture in Receiving State Remedies in Sending State exhausted Remedies in Sending State exhausted

„Split“ Litigation I Extraditing/ Deporting State Transit State Receiving State International Petition 1 International Petition 2

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

„Split“ Litigation I Extraditing/ Deporting State Transit State Receiving State International Petition 1 International Petition 2 Aim: Preventing deportation or extradition Aim: Preventing or remedying torture

„Split“ Litigation II Scenario Victim is subjected to inhuman prison conditions and is being tortured during interrogation Victim is subjected to inhuman prison conditions and is being tortured during interrogation Victim’s confession is admitted at trial despite claim of torture and without investigation of her claim Victim’s confession is admitted at trial despite claim of torture and without investigation of her claim Domestic remedies are exhausted Domestic remedies are exhausted State concerned has ratified Inter-American Convention on Human Rights and CAT State concerned has ratified Inter-American Convention on Human Rights and CAT

„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 CAT Inter-Am. Comm.H.R.

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)

Factors Determining Forum Choices Rights-Related  Covered right (precision vs. generality)  Substance of case law  Volume of case law (legal certainty)

Factors Determining Forum Choices Procedure-Related Requirements of form Requirements of form Admissibility criteria Admissibility criteria Requirements of evidence Requirements of evidence Option of an oral hearing Option of an oral hearing

Factors Determining Forum Choices Outcome-Related Legal value of result (binding effect) Legal value of result (binding effect) Awards of compensation, including punitive damages Awards of compensation, including punitive damages Success rate (overall and case-specific, real or perceived) Success rate (overall and case-specific, real or perceived) Enforceability and state compliance Enforceability and state compliance

Factors Determining Forum Choices Factual Circumstances (Examples) Availability of s ources (primary and secondary) Availability of s ources (primary and secondary) Accessibility of the international procedure (and the petitions team) Accessibility of the international procedure (and the petitions team)

Factors Determining Forum Choices Strategy and Expectations Client’s preferences (if applicable) Client’s preferences (if applicable) Sponsor’s preferences (if applicable) Sponsor’s preferences (if applicable) Part of a larger litigation strategy? Part of a larger litigation strategy? Side effects of litigation (publicity etc.) Side effects of litigation (publicity etc.)

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

What precludes forum shopping? The treaties (CCPR OP 1, art. 5 (2) (a); CAT, art. 22 (5) (1), etc.) The treaties (CCPR OP 1, art. 5 (2) (a); CAT, art. 22 (5) (1), etc.) Reservations Reservations Practice Practice

TreatiesReservationsPractice

The Treaties The Committee shall not consider any communication from an individual unless it has ascertained that … [t]he same matter is not being examined under another procedure of international investigation or settlement. ( CCPR OP 1, art. 5 (2) (a) )

The Committee shall not consider any communication from an individual under this article unless it has ascertained that … [t]he same matter has not been, and is not being examined under another procedure of international investigation or settlement. (CAT, art. 22 (5) (1))

The Reservations Aim at further restricting forum choices with respect to certain European states. Aim at further restricting forum choices with respect to certain European states. Prohibit “successive” in addition to “parallel” complaints to regional and UN bodies. Prohibit “successive” in addition to “parallel” complaints to regional and UN bodies. Have been accepted by the Human Rights Committee. Have been accepted by the Human Rights Committee.

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

What is „substantially the same“ petition? Victims Victims Respondent states Respondent states Facts Facts Rights Rights Complaints Complaints

What is „substantially the same“ petition? Submission? Submission? Consideration? Consideration? Decision on the Merits? Decision on the Merits?

Creative Litigation Strategies Using Forum Choice Examples

Litigation Crossing Human Rights Borders – A Case of Past Torture Case Scenario Victim was tortured in Country of Origin Victim was tortured in Country of Origin Fled to Country of Residence via Transit Country Fled to Country of Residence via Transit Country Country of Origin has accepted CAT procedure Country of Origin has accepted CAT procedure No domestic remedies against torture or to provide redress for torture victims available in Country of Origin 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 Country of Residence has ratified European Convention on Human Rights and CCPR

Litigation Crossing Human Rights Borders – A Case of Past Torture Domestic Asylum Application Country of Residence Country of Residence International Petition against Deportation Transit Country International Petition against Deportation Country of Origin CAT Petition re: past torture