The protocol only pays perfunctory attention to the course of the further procedure. Thus said, the actual formulation is incumbent upon the Court, which has to govern the procedure within the framework of its rules of procedure.587
a) Principle of public trial
One of the most momentous procedural differences of the judicial procedure for communication procedure before the AfrCHPR – that provides for strict confidentiality during the treatment of communications588
– is laid down in Art. 10 II: “The Court shall
587
Art. 8. 588
conduct its proceedings in public.” The fact that the protocol codifies the principle of public trial and does not place it (like other rules of procedure) up to the Court shows which degree of relative importance was attributed to this regulation. The principle of public trial also applies to the IACtHR and the ECtHR, but is also merely laid down in the standing orders there.589
Art. 10 was provided with the article designation “Hearings and Representation” (notionally “proceedings”); however, not only is the oral hearing recorded by Art. 10 II, but also the written proceedings. Therefore it is also to be assumed that all documents within the scope of a procedure are to be made immediately accessible to the public, and the principle of public trial gain acceptance for all procedural stages.590
The stigma of achieving results – the legality of which is not discernible behind closed doors in obscure proceedings – is supposed to be removed with this regulation from the African legal protection system. The Commission has already attempted to do this, but is strongly truncated by its own procedural guidelines. The entire communication procedure is closed to the public, only completed proceedings are published. The proceedings before the Court seem to be much more promising under this aspect: Not only the rulings must be published, but the procedural approach also has to be understandable so that the administration of justice yields a self-contained human rights concept that offers orientation and establishes legal security. Art. 10 I 2 gives the Court the possibility to exclude the public from proceedings insofar as this is provided in the standing orders. This is a practical regulation that allows the parties involved in the dispute to file an appropriate request, of which the Court decides. For instance, if a complainant or appellee strives for a conciliatory solution, the exclusion of the general public could facilitate an amicable settlement.
b) Representational regulation
Commensurate with Art. 10 II, any party can be represented by a legal adviser of their choice. A special qualification for the representative, for instance special knowledge of the law,591
is not called for. Presumably this takes into account the fact that many representatives would not fulfil such a prerequisite. If one concludes from the experiences of the Commission, NGOs
589
Art. 14 RP IACtHR; Art. 33 RP ECtHR. 590
This is also the modus operandi for the ECtHR. The documents in a complaint matter can be perused by the interested general public at the Court’s seat in Strasbourg; compare: Mark Villinger, Handbuch der Europäischen Menschenrechtskonvention, No.: 197.
591
However, this is demanded for in Art. 36 RP ECtHR concerning advisors and representatives in the proceedings before the ECtHR.
would frequently appear on behalf of an individual before the Court, and only in rare cases do their representatives possess special knowledge of the law.
A legal adviser can perceive all tasks which are incumbent upon the complainant. However, pursuant to Art. 10 II, the utilisation of a legal adviser before the AfrCtHPR is not obligatory.592
It ensues that the complainant retains the capacity to personally plead in every procedural stage.
c) Right to legal aid
In light of the complex formal and substantive issues of potential legal matters before the Court, any procedure entails a fundamental risk that a structural inequality emerges between the individual complainant and the appellee state party, which can appear before the Court with the support of its entire juridical apparatus. This particularly applies if a complainant does not have sufficient financial means to establish a certain equality of “legal weaponry” through professionally qualified legal counsel. Also in light of the fact that a procedure before the Court requires the prior exhaustion of legal recourse and thus entails substantial financial expenditures on the part of the complainant, the legal assertion of convention rights is threatened with failure due to lack of funds.
In contrast to the Banjul Charter, the protocol reacted to this danger and determined in Art. 10 II 2 that “free legal representation may be provided where the interests of justice so require”. The protocol follows the European system with the right to legal aid.593
A right such as in proceedings before the AfrCHPR is not provided for in the Inter-American protection system.594
The protocol pursues a noble – but in terms of its purview, a hard to achieve – objective with
592
Unlike before the ECtHR, where the complainant at least has to be represented at oral hearings (Art. 36 1111 RP ECtHR); compare: Mark Villinger, Handbuch der Europäischen Menschenrechtskonvention, Zurich 1999, p. 134 et seqq.; Harris, O’Boyle, Warbrick, Law of the European Convention on Human Rights, London 1995, p. 664 et seqq.
593
Comp. Chapter X (Art. 91 et seqq.) RP ECtHR. 594
With reference to the Inter-American system, Scott Davidson argues with the fact that “many of the claims are fact driven and do not require precise legal analysis, and so […] applicants do not necessarily suffer greatly from the lack of legal assistance”; cited in Andrew Butler, Legal Aid before Human Rights Treaty Monitoring Bodies, in: ICLQ 49 (2000), p. 362, footnote 7. This is certainly true. However, the lack of a right to legal aid in the Inter-American system nevertheless is a shortcoming in the system. On the one hand, the procedural standards of a human rights monitoring body should serve national legal systems as an orientation which the Inter-American system surely does not in this concern. On the other hand, in contrast to the ECtHR, the IACtHR does not even award successful complainants the incurred procedural costs as compensation; compare: Dinah Shelton, Remedies in International Human Rights Law, Oxford 1999, p. 307. This is remarkable insofar as the IACtHR itself estimated the costs for implementation of a procedure before the Inter-American human rights bodies at $80,000. Compare same, Future Remedies in the Inter- American System, in: ASIL Proceedings 92 (1998) pp 202-206, at p. 204.
this provision: the realisation of rights for the indigent. The difficulty lies in the fact that the Court could not initially make arrangements in its own proceedings, but had to configure the national proceedings so that this provision achieved its objective. Indeed, the Commission does not recognise the non-exhaustion of legal recourse due to financial necessity as an exception to the local remedies rule, because it fears being inundated with complaints otherwise.595
Therefore the legal route to the Commission is blocked for individuals if they have not pursued national means of legal resource due to lack of funds. If impoverishment does not entail lack of rights and the Banjul Charter loses credibility as a result (as Art. 10 II 2 seeks to prevent), the Court has to resort to other selection standards in order to prevent a paralysis through an excess of work. Correspondingly, the AfrCHPR would have to adapt its practice of adjudication in order to ensure a coherency of admissibility criteria.
The greatest significance of the right to legal aid ensuing from Art. 10 II 2 also lies here. Indeed, the financial assistance provided by the Court is surely not enough to be able to “buy” highly-qualified legal advice for the complainants. The payments in the European system have already been measured so low596
that a qualified procedural representative needs another motivation to present a case before the ECtHR. In the literature, the rates are assessed as “not generous”597
, “meagre if not derisory”598
, and “a little more than a nominal payment”599 . Such assessments may be understated for the African Court’s future regulation of costs. This is why the right to legal aid stipulated in Art. 10 II 2 is more than likely due less to the effect that complainants receive legal aid than they otherwise would not have received; on the contrary, the consequence is that the non-exhaustion of legal recourse due to financial necessity cannot be assessed by the Court as a reason for inadmissibility, without this contradicting Art. 10 II 2.
In other respects, the granting of the right to legal aid has a further fundamental advantage; however, this can only be taken into account if the financial configuration allows it: The decision-making on the part of a judiciary body will be made much easier if both sides are competently represented, since a majority of juridical argumentation work is performed by procedural representatives, and the judiciary authority only has to examine their decisional
595
Concerning the local remedies rule comp. above on pp. 134 et seqq. 596
Comp. the overview at Andrew Butler, Legal Aid before Human Rights Treaty Bodies, in. ICLQ 49 (2000), pp. 360-389, at p. 365.
597
Nikolaos Sansonetis, Costs and Expenses, in: Ronald Macdonald, Franz Matscher, Herbert Petzold (Eds.), The European System for the Protection of Human Rights, Dordrecht et al. 1993, pp.755-773, 762.
598
D.J. Harris, M. O’Boyle, C. Warbrick, Law of the European Convention an Human Rights, London 1995, p. 665.
599
relevance.600
But in light of the anticipated extreme shortage of finances, it cannot be expected that juridical competence can be bought with the right to legal aid. Therefore one hopes that the Court acquires a sufficient reputation in order to promise university lecturers, lawyers and other qualified personnel a correspondingly high gain in prestige for their representation that compensates the financial disadvantage.
d) Unhindered implementation of individual complaint procedure
The protocol grants any person, witnesses or representatives who appear before the Court the protection and all facilitations which are necessary for exercise of their function and for fulfilment of their obligation vis-à-vis the Court.601
This obligation is a special characterisation of the cooperative obligation which the contracting states undertake with regard to the judicial proceedings.602
It targets the unhindered implementation of the judicial procedure which the states have already been subject to through ratification of the protocol and, should the occasion arise, through submission of a declaration pursuant to Art. 34 VI with regard to the right of individuals to file a complaint. The deliberate hindrance of the judicial procedure is thus already inadmissible according to general international law, since it represents a treaty infringement.
The protection of Art. 10 III includes any individual who is of relevance in a procedure, i.e. the natural parties, their legal counsel, witnesses and experts. This general reference to provisions of international law may have the advantage vis-à-vis detailed regulatory immunity provisions (such as those also enacted by the Council of Europe in a separate agreement603
) — that there is no ensuing deterrent effect which could further decelerate the ratification.
e) Law of evidence
Naturally the Court has to determine the relevant facts in order to examine whether a conventional infringement exists. At the same time, commensurate with Art. 26 II, it initially takes into account the petitions of the involved parties. But insofar as it deems necessary, it
600
The former President of the European Commission, Humphrey Waldock, has put it like this: “Legal aid is essential not only to from the point of view of fairness to the individual but also from the point of view of the effective discharge of the Commission’s responsibilities under the Convention. For the Commission will be in a much better position to give a correct decision, if both sides of a case have been adequately presented to it by the parties.“, YEC 1963, p. 91.
601
Art. 10 III. 602
Comp. Art. 26 I. 603
Comp. the European Agreement relating to Persons participating in Proceedings of the European Commission and Court of Human Rights (ETS 67) or, upon entry into force of Protocol 11, the European Agreement relating to Persons participating in Proceedings of the European Court of Human Rights (ETS 161), respectively.
can conduct its own ascertainment of facts. Thus said, the principle of judicial investigation applies to the Court in restricted form: It is not bound to the motions for the admission of evidence; insofar as it does not deem the admissions of the parties to be sufficient, it officially investigates the facts.
International law lends international bodies only limited competencies, which can substantially compound an official ascertainment of facts. This is why the taking of evidence essentially depends on the willingness of the involved states to cooperate and to give offers of proof.604
Since these entities take on the role of “defendant” in human rights complaints procedures insofar as they appear as appellees, their unrestricted cooperation cannot always be assumed. On the contrary: The proceedings before the AfrCHPR clearly show that states are frequently not even willing to officially take cognizance of the pendency of a procedure605
, that they submit their admission with substantial delay606
, or otherwise do not respond to enquiries at all.607
However, this phenomenom is not restricted to African Countries but is widely spread in international human rights proceedings.608
Therefore this fact is to be appropriately taken into account for the apportionment of the burden of proof. Otherwise not only particularly renitent parties would be favoured and cooperatively adversely affected, but complainants from corresponding states would also have to fear a procedural discrimination in addition to the already suffered (at least claimed) human rights violation. The AfrCHPR responded to this difficulty by regarding the admissions of the party filing the complaint as given, insofar as they are not contested by the state. This practice may not have particularly influenced the respective states, since the Commission procedure only concludes with nonbinding recommendations. The certain view of risking an incriminating, legally binding ruling – if enquires are not responded to – could contribute towards a willingness to cooperate, however. For instance, the ECtHR also accepts a reversal of the burden of proof in the event of cases – in which only the government has access to essential information – if they belatedly submit (or do not submit at all) the information
604
Unfortunately, the obligations of the states with regard to the hearing of evidence in international judicial proceedings (especially Articles 10 and 11) – which were already provided for in the Harvard Draft on Judicial Assistance (1939) – were never applied. This is why in actuality the proposals sacrificed nothing. Compare: J.G. Rogers, A.H. Feller (Reportesr), Research in International Law under the Auspicies of the aculty of the Harvard Law School, in: AJIL 33 (1939) Supplement, in particular pp. 104 et seqq.
605
Comp. complaint procedures 59/91; 60/91; 87/93; 101/93. 606
Comp. complaint procedures 27/89; 46/91; 49/91; 99/93. 607
Comp. complaint procedures 219/98; 201/97; 74/92; 40/90. 608
without justified reason.609
In order to secure the cooperation of the states, they are obligated in accordance with Art. 26 I 2 to grant all necessary facilitations for implementation of the investigations.
Article 26 II conclusively defines the law of evidence – i.e. the Court makes its decision on the basis of oral and written evidence as well as expert opinions. Thus said, the law of evidence is by no means treated in detail by the protocol. Usually such regulatory objects are also counted amongst the autonomous organisational realm of the international authority610
, so that their detailed formulation is to be undertaken by the Court within the scope of its standing orders.
The remarkable aspects of this provision also seems to be less due to the evidentiary components than the participatory obligation which were imposed on the states through Section I with regard to the implementation of official hearing of evidence. The fact that on- site missions are not accepted or intentionally boycotted is amongst the negative experiences of the Commission’s work. With Art. 26 I 2 the Court is directly provided with a conventionally demandable obligation to cooperate which can positively influence its results.