Human Rights Fact-Finding. The European Court of Human Rights at a Crossroads
| Date | 01 March 2010 |
| Published date | 01 March 2010 |
| Author | Costas Paraskeva,Gordana Uzelac,Philip Leach |
| DOI | 10.1177/016934411002800103 |
| Subject Matter | Part A: Article |
Netherlands Q uarterly of Human R ights, Vol. 28/1, 41-77, 2010.
© Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands. 41
HUMAn RIgHts FACt-FInDIng.
tHe eURoPeAn CoURt oF HUMAn
RIgHts At A CRossRoADs
P L, C P and G U*
Abstract
is articl e seeks to e xamine the eectivene ss of the fact-nding activities underta ken
by the European Court of Human Right s (and the former Commi ssion). It argue s that
while some fact-nding missio ns have revealed certain weaknesse s in the past, the very
conduct of s uch missions remains indispensable – in the interests both of litigants and
the credibility of the Strasbourg system itself. erefore, some greate r thought needs to
be given to practical ways and means to f ully tap the Court’s fact-nding potential.
1. INTRODUCTION
In view of the requirement to exhaust domestic remedies prior to bringing an application
to the European C ourt of Human Rights (reecti ng the principle of subsidiarity),1 in
the vast majority of Strasbour g cases the signi cant facts are no longer in dispute.
e European Cou rt of Human Rights (herei naer ‘the Court’ or ‘European Court’)
* Philip Lea ch is Profe ssor of Huma n Rights and Dire ctor of t he Human Rights a nd Social Justice
Research I nstitute at L ondon Metropolitan University, London, t he UK; Dr C ostas Paraske va was
formerly a researcher at the s ame instit ute and i s now an Advocate at Lellos P. Dem etriades L aw
Oce LLC, Nicosia, Cypr us; and Dr Gord ana Uzelac is S enior Lecturer in Quantitat ive Sociology
at London Metropolitan Univer sity. is article summa rises the ndings of a report resea rched and
written by the authors , entitled: Int ernational Huma n Rights and Fact-Finding: An Analysis of the
Fact-Finding Missions Con ducted by the European Commission and Court of Human Rights, Huma n
Rights a nd Social Just ice Research In stitute, London Met ropolitan Universit y, February 20 09. e
research w as funded by the Nueld Foundation. ei r thanks to Jörn Esch ment (PhD cand idate,
University of Freiburg) who made a signica nt contribution to the writi ng of the repor t, and who
also a ssisted wit h the wr iting of t his art icle. e fu ll report is availab le on the Institute’s website:
www.londonmet .ac.uk. All internet sites were la st accessed in December 2009. A ll the decisions of
the Europ ean Court of Human R ights (and t he former Europ ean Commis sion of Human Rights)
referred to in this article a re available on the Cour t’s HUDOC sit e: www.echr.coe. int/ECHR/EN/
Header/Case-Law/HUDOC/HUDOC+database/.
1 Article 35(1) of the Convention for t he Protection of Human R ights and Fundamental Freedoms,
Council of Europe Treaty Se ries, No. 5.
Philip Leach , Costas Paraske va and Gordana Uzelac
42 Intersentia
has therefore b een able to rely not only on the facts as ‘pre-digested’ by the national
authorities, but a s a general ru le also on their evaluation of those facts.2 If, however,
domestic authorities are u nable – or unwilling – to elucidate the fa cts of the case, the
Court may nd itself obliged to send a judicial delegation on a fact-nding mi ssion to
the respondent State. A fact-nding mission, as a generic term, comprises both fact-
nding hearings3 a nd on-the-spot i nvestigations.4 Some missions may also include
elements of both procedures.
It has been suggested that fact-nding lies ‘at the heart of human rights activities’.5
If that is right, the 1990s c an be described as Strasbourg’s fact-nding golden age, for,
in a series of cases, primarily again st Turkey, the former Commission and, since 1998,
the new Court, conducted a considerable number of fact-nding missions in order to
adjudicate on fundamenta l and signicant factual d ierences between the parties. In
recent years, however, part ly because of its heavy caseload (117,850 pending cases on
31 December 20086), the new Court has conducted fact-nding missions relatively
ra rel y.7 Nevertheless, Str asbourg of course continues to receive particularly serious
applications from Europea n ‘trouble spots’ (such as Russia (Chechnya),8 G eorgia,9
2 Fitzpatrick, Joan, ‘Hu man Rights Fac t-Finding’, in: Bayefsk y, Anne F. (ed.), e UN Human R ights
Treaty System in the 21st Century, Kluwer Law Internationa l, e Hague, 2000, pp. 65 –97, at p. 68 et
seq.
3 is is a formal hearing process duri ng which witnesses give ev idence before the judicial delegat ion
and are subject to a process of examination and cross-exam ination. In practice, fact-nding hearing s
have formed part of t he majority of Court a nd Commission fact-ndi ng missions.
4 Any fact-ndin g mission which does n ot involve a for mal hea ring proc ess is referred to in this
article as a n ‘on-the-spot investigat ion’. ey oen involve inspection s of prisons or other places of
detention. eir us e has been much more limited t han fact-nding hea rings.
5 Franck, omas M. and S cott, Fairley H ., ‘Procedural D ue Process In Hum an Rights Fact-Find ing
By Internat ional Agencies’, American Jou rnal of Int ernational L aw, Vol. 74, 1980, pp. 308–345, at
p. 308.
6 See ‘European Cour t of Human R ights – Pending A pplications Allo cated to a Judicia l Formation’,
Council of Europ e, Strasbourg, 20 09, available at: ww w.echr.coe.int/NR /.
7 is research has e stablished that fact-nding miss ions have been car ried out by the new Court in
only 18 cases.
8 Parliamentary Assembly, Committee on Legal Aairs and Human Rights, Implementation of judgments
of the European C ourt of Human Rights , ‘Introductory Memor andum: Christos Pourgourides’, AS/
Jur (2008) 24 , 26 May 200 8, paras 76–79. Se e also Lea ch, P., ‘e Chechen C onict: Ana lysing the
Oversight of the Europea n Court of Human Right s’, European Human R ights Law Rep orts, No. 6,
2008, pp. 732–761.
9 ECtHR, Sham ayev and Others vs Geo rgia and Russia, 12 April 20 05, Applic ation No. 36378/02,
HUDOC database. Se e also European Cou rt of Hum an Rights , Press Rele ase, ‘2,70 0 applications
received by the Cou rt from South Osset ians against Ge orgia’, 10 October 2008.
Human Rights Fact-Finding. e European Court of Human Rights at a Crossroads
Netherlands Q uarterly of Human R ights, Vol. 28/1 (2010) 43
Tur k ey ,10 Mo ldova,11 and Cyprus12). e nature and gravity of these case s may
well mea n that, in the absence of eec tive prior domest ic proceedings, fact-nding
missions will a gain be required of the Court.
Holding fact-nding mi ssions in such c ontexts, however, poses sig nicant
challenges to the Cour t, not least arising from practic al and logistical dicult ies,
which may impinge on its ability to ensure that its proceedings are fair to all parties.
What is more, the excessive backlog of cases may mean increasing pressures on Court
judges and ocials not to sanct ion fact-nding processes because they are time-
consuming and expensive.13 Perhaps more f undamentally, those who consider that
the European Court of Human Rights is, or should be, acting as a ‘constitutional court
of Europe’ might well argue that any fact-nding role should be limited to an absolute
minimum. is then begs the question as to what are the exceptional circu mstances
which require the Cour t to carry out in-country fact-ndi ng missions.
is is an optimum time, therefore, to critical ly examine the Court ’s previous fact-
nding practice and to look into manageable ways to maximise its eectiveness in this
area. Dur ing the course of t he research on which thi s article is based ,14 we compiled
a databa se of 92 cases in the course of which there has been a fact-nding mission
by t he European Commission or Court of Human Rights. Desk research was then
supplemented by questionnaire s and interviews (involving current and former judges,
former members of the Commission, cur rent and former registrars and lawyers from
the Court Regis try and applicant and State representatives).
2. THE EUROPEAN COURT’S EVALUATION OF EVIDENCE
In order to place ou r evaluation of the Europea n Court’s fac t-nding process in its
appropriate context, this se cond section briey considers the Court’s approach to the
evaluation of evidence.
10 Committee of Minister s, Interim Resolution ResDH(2008)69, ‘E xecutions of t he judgments of the
European Cour t of Human Rights – Actions of the secu rity forces in Turkey, Progress achieved and
outstandin g issues, General me asures to ensure compl iance wit h the jud gments of the Europea n
Court of Huma n Rights in t he cases against Turkey concerning action s of members of the secu rity
forces, Fol low-up to Inter im Resolutions DH(99)434, DH(2002)98 and ResDH(2005)43’, Adopted
by the Committee of Ministers on 18 September 2008 at the 1035th me eting of t he M inisters’
Deputies.
11 ECtHR, Ilaşcu and Others vs Moldova and Russia (GC), 8 July 20 04, Applic ation No. 48787/99,
HUDOC datab ase.
12 ECtHR, Varnava and O thers vs Tu rk ey , 10 Janua ry 2008, Application Nos 160 64/90, 16065/90,
16066/90, 16068/90, 16069/9 0, 16070/90, 16071/90, 16072/90 and 16073/90, HUDO C database.
13 Evaluation Group Cour t (2001), Report of the Evaluation Group to the Commit tee of Ministers on the
European Court of Hu man Rights, 27 September 20 01, para. 63.
14 See the aste risk footnote.
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