Sharing responsibility? The co-respondent mechanism and EU accession to the ECHR

 Posted by: Lock Tobias

The negotiations on accession by the EU to the ECHR have recently entered their final stage. Representatives of the EU and of the forty-seven parties to the ECHR (the so-called Group 47+1, which has published the reports of its first and second meeting) are scheduled to meet twice this autumn to agree on a final accession agreement. It is likely that it will largely be based on the draft agreement on EU accession, which was made publicly available last year. Once final agreement has been reached, it is very likely that the Court of Justice of the EU (CJEU) will be asked for an Opinion on whether the agreement is compatible with the EU Treaties. Should the CJEU give the agreement a green light, the ratification process can begin.

This blog entry asks whether the co-respondent mechanism provided for in the draft agreement leads to a sensible allocation of responsibility between the EU and its Member States for violations of the Convention post-accession.[1] By introducing the co-respondent mechanism, the drafters aimed to resolve the problem that after accession both the EU and its Member States will be parties to the ECHR. Since it is mainly the EU’s Member States which implement obligations laid down in EU primary and secondary law, an applicant will usually hold the implementing Member State responsible in the European Court of Human Rights after having exhausted the domestic remedies in that Member State’s legal order. The problem is that the violation of human rights may not necessarily be the Member State’s fault as it may well have been contained in a provision of EU law. Thus even if the Member State is convicted in Strasbourg, it will be unable to remedy the violation since it lacks the competence under EU law to do so. In such cases it would therefore make sense to involve the EU in proceedings and thus to extend the binding reach of the judgment to it. The same is true in the reverse situation where the EU is held responsible for alleged violations contained in its primary law (mainly the EU’s Treaties). In such a case it would make sense to make the Member States join the proceedings as it is only they which can agree on a Treaty change.

As a solution to this problem, Article 3 of the draft accession agreement introduces the co-respondent mechanism. It provides that where a Member State is taken to the ECtHR and it appears that the alleged violation of the ECHR calls into question the compatibility with Convention rights of a provision of EU law, the EU may become co-respondent. The same is true in the reverse situation. Where the EU is respondent in proceedings before the ECHR and it appears that the allegation calls into question the compatibility with Convention rights of a provision of EU primary law, the Member States may become co-respondents.

The status of co-respondent will be unique in the ECHR legal order. Its main features are that the co-respondent becomes a party to the proceedings so that the judgment is also binding on it. The key difference to the status of an ordinary respondent is that the applicant does not need to exhaust the domestic remedies in the co-respondent’s legal order. Procedurally, it therefore reduces the burden for the applicant and is to be welcomed.

The main flaw of the mechanism, as laid down in the draft agreement, is that the co-respondent cannot be forced to join proceedings. Rather, the status is voluntary. This calls into question the main rationale behind the mechanism, which is the ‘correct’ attribution of responsibility between the EU and its Member States. From the perspective of EU law, this attribution cannot be undertaken by the European Court of Human Rights since it would violate the autonomy of European Union law if a court other than the EU’s Court of Justice made such an assessment (for details see here). The rationale for the voluntariness of the co-respondent status given in the explanatory report is that a party cannot be forced into proceedings where it was not named in the initial application. Yet this argument is based on a mere technicality and is hardly convincing. There is no reason why an applicant should not ask another party to join proceedings at a later stage provided that the procedural rights of that party are respected, especially regarding their right to be heard. In addition, the draft appears to contradict the rationale for the co-respondent mechanism. According to the explanatory report, the main reason for its introduction is to avoid gaps in the participation, accountability and enforceability in the Convention system. But a voluntary mechanism leads to exactly such gaps. The EU or a Member State may well decide to steer clear of proceedings even though they would be responsible for the alleged violation. The fact that the applicant can nominate both from the outset does not remedy this problem since it would force the applicant to exhaust domestic remedies in all legal orders concerned, which is not only costly but also time-consuming. It should especially be borne in mind that an applicant before the ECtHR does not need to be represented by a lawyer so that she may not even be remotely aware of these requirements. It follows that the current draft only achieves sub-optimal results regarding the efficiency of human rights protection for individuals.

This is coupled with the danger that a Member State raises the defence that it was not responsible for the violation as the violation was rooted in its obligations under EU law and it had no discretion. If such a defence were possible, neither the EU nor the Member State would be responsible in the ECtHR[2], which would defeat the whole purpose of EU accession. The draft and the explanatory report are silent regarding this possibility. It is important that the ECtHR would not accept such a defence. Otherwise, the human rights protection as regards EU law would risk being less effective than it is now. It is suggested that the draft presupposes that no such defence should be possible. It is therefore suggested that the responsibility in such situations should generally be joint. Neither the Member State nor the EU should have a possibility to escape it. This seems to have been recognised by the EU as it tabled an amendment to the draft accession agreement during the first meeting of Group 47+1, which states that acts of the EU’s organs remain attributable to the Member States even where they occur when the Member States are implementing their EU law obligations.[3]

It would therefore be welcome if the on-going negotiations on EU accession revisited this issue and came to a more convincing solution. The co-respondent mechanism is generally a good solution to balance the interest of the EU and its Member States in not allowing an external court to decide who was internally responsible with the interest of a potential victim of a human rights violation to get an effective remedy. But the co-respondent mechanism can only work if it leads to truly shared responsibility before the ECtHR. Otherwise, there is a risk of thwarting the overall aim of EU accession to the ECHR, which is the improvement of human rights protection in Europe.

For a more detailed version of the arguments made in this blog post see my forthcoming article “End of an epic? The draft agreement on the EU’s accession to the ECHR” in the Yearbook of European Law 2012. A pre-edited version of that article can be found here.

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[1] This blog post repeats part of the argument I made at my SHARES lecture on 4 October on EU accession to the ECHR and the co-respondent mechanism. It is limited to explaining the main rationale for the co-respondent mechanism and to criticising its voluntary character. Other issues of shared responsibility could not be addressed (e.g. the question of who should have to pay ‘just satisfaction’ where the co-respondent mechanism applies).

[2] This argument assumes that in most cases an applicant would not be able to bring a case against EU legislative acts directly against the EU since it would lack the status of a victim required by Article 34 ECHR.

[3] Meeting report 47+1(2012)R02, page 15.

From Shared Obligations to Individual Obligations: The Hague District Court and Asylum at the ICC

 Posted by: Irving Emma

On 27 September 2012, the District Court of The Hague handed down this important decision in an ongoing situation regarding three detained witnesses of the International Criminal Court (ICC) who have sought asylum in the Netherlands. The decision raises a number of fundamental issues concerning the relationship between ICC jurisdiction as opposed to the Netherlands jurisdiction, as well as important human rights issues.

The defence team in Prosecutor v Katanga sought the transfer of three detained witnesses being held in the Democratic Republic of Congo (DRC). Prior to being brought to the ICC, the three witnesses had been detained in the DRC on suspicion of killing United Nations peacekeepers. The transfer to the ICC was effected pursuant to Article 93(7) of the Rome Statute, which sets out the transfer procedure to be followed for detained witnesses, and involves and obligation on the ICC to return the witnesses to the DRC as soon as their testimony is complete.

Following their testimony before the ICC, the witnesses presented an asylum application to the Dutch immigration authorities on 12 May 2011. They claimed that because their testimony to the ICC implicated the incumbent DRC President, Joseph Kabila, on return to the DRC they would be subjected to persecution, inhumane or degrading treatment, and their fair trial rights would be violated. From the perspective of the SHARES project, this application raises interesting questions. Both the ICC and the Netherlands have human rights obligations towards the individual witnesses, which may include a prohibition on refoulement. However do these obligations have the same content? Does one prevail over the other, and if so how and why? The decision of the Hague District Court unfortunately answers few of these legal questions.

As far as the ICC is concerned, Trial Chamber II held in a decision of 24 August 2011 that assurances provided to it by the DRC, guaranteeing that certain protective measures would be put in place, enabled the witnesses to be safely returned. However, in a previous decision of the 9 June 2011, the Court held that it would not order the return of the witnesses while the asylum applications were pending, as this would compel the Netherlands to act contrary to its obligation to process an application for protection from refoulement. The ICC has sought to consult with the Netherlands in order to transfer the witnesses to the Dutch authorities, but to date these consultations have failed to yield result. The Netherlands maintains that it lacks jurisdiction to take the witnesses because they were transferred to the Dutch territory pursuant to an agreement between the ICC and the DRC.

The witnesses remain therefore, more than one year later, in detention at the ICC’s facility, raising the issue of their right to liberty. Under the Headquarters Agreement the ICC cannot release the witnesses into the Netherlands without the latter’s consent, but the Netherlands claimed it was not within their jurisdiction to take them. This situation of shared responsibility has therefore left the witnesses in a legal limbo.

This legal limbo may now be resolved, at least for practical purposes. On 12 September 2012 a hearing took place before The Hague District Court in which lawyers for the witnesses claimed the ongoing detention violated their right to liberty under Article 5 European Convention on Human Rights. Just over two weeks later a summary judgement was issued by the Hague District Court, which has brought the witnesses closer to being released.

In this decision, handed down on 27 September 2012, the District Court of The Hague ruled that the continued detention of the witnesses was unlawful. This followed from the fact that there was no prospect of release or trial within a reasonable period of time. The Court recognised that asylum applications might interfere with the system envisaged by international law (presumably the obligation on the ICC to return witnesses transferred pursuant to Article 93(7) Rome Statute), but stated that the state was simply bound to examine the request (para 3.7 of decision).

The Dutch Court rejected the Netherlands’ argument as to jurisdiction. It held that irrespective of whether the witnesses are under the jurisdiction of the Netherlands, they cannot be left in a detention situation which has no end in sight. The State was ordered to consult with the ICC and take over the witnesses within a period of four weeks. The Dutch Court stressed the importance of the asylum proceedings, given that the witnesses have access to no other remedy. In this way the Court distinguishes the European Court of Human Rights case of Galic (para 3.6). In that case it was held that human rights violations which might have occurred at the ICTY were not attributable to the Netherlands merely because the ICTY was on Dutch territory. The important distinction is that Galic had access to the procedural safeguards of the ICTY, whereas the witnesses in the current situation do not (para 3.5 and 3.7 of decision). The same distinguishing factor was present in another The Hague District Court decision in Milosevic v The Netherlands, in which the court ruled that matters relating to detention at the ICTY had been transferred to the ICTY and the Netherlands retained no jurisdiction over it.

The Dutch Court appears to be ruling that human rights concerns, in particular the right to a remedy, take precedence over the particularities set out in the Headquarters Agreement dealing with the distribution of jurisdiction between the ICC and the Netherlands. While this is surely a desirable result in many ways, one might wonder what the legal basis is for finding a hierarchy in international law, when such norms of hierarchy are extremely limited (namely, limited to jus cogens norms).

The Dutch Court was barred from reviewing the ICC’s assessment on whether it is safe to return the witnesses by, among others, Article 5 of the Headquarters Agreement. As a result, the Hague District Court has resorted to transforming what was a shared obligations situation, to an individual obligations case in which the Netherlands must perform its human rights obligations as if the ICC had no role. This approach is clear from the Dutch Court’s concern that no other remedy was available to the witnesses. A Dutch Court can, after all, only command the Dutch government. It is concerning however, that the lack of an international mechanism to mediate the issue has led to a single entity approach in a situation which is inherently one of shared obligations and responsibilities.