Reopening of Procedures after Judgements by the European Court of Human Rights

Summary Reopening of Procedures after Judgements by the European Court of Human Rights Redress of violations of the European Convention on Human Rights in closed criminal cases as well as in closed civil and administrative cases 1 The application problem This book deals with the situation that occurs when a judgement of the European Court of Human Rights (ECrtHR) implies that the European Convention on Human Rights (ECHR) has been violated in a Dutch criminal case that has resulted in a final verdict with power of res judicata. Because of res judicata, it will in many cases not be feasible to adequately apply the judgement of the Court within the case in question in order to redress the committed violation. This leads to the central question addressed in this book, which will be referred to as the application problem: 1. Should there be a national provision for the reopening of criminal proceedings in order to redress violations of the ECHR that have become evident through judgements of the ECrtHR? 2. If so, what would be the desired basis, scope, content and form of this application provision, and should it apply only to criminal cases, or should it also extend to civil and administrative law? These questions will first of all be addressed for plaintiffs, meaning those persons concerning whom the ECrtHR, in response to an individual petition submitted by these persons in Strasbourg, has found a violation of the Convention. In addition, the application problem will be reviewed in regard of third parties, meaning those persons for whom the judgement of the Court inevitably leads to the conclusion that their rights under the Convention have also been violated, even though the judgement in itself does not apply directly to them. Although this study as implied in the wording of the central question as stated above primarily focuses on criminal law, civil and administrative law will also be substantially reviewed. Chapter I provides an explanation of this choice, as well as a more detailed embedding of the problem of application, a brief description of all the cases in which the ECrtHR has ruled against the Netherlands, a description of the scope of the study and the structure of this book in general. 2 Essential topics in international law The application problem implies a coming together of international law and national law. For this reason, I will review the background of the ECHR and the Netherlands reasons for ratifying it in Chapter II ( 2 and 3). The conclusion will be that the 539

540 Summary possibility to provide adequate redress in the case of violations of the Convention committed against individuals is in itself in line with this background and these reasons (see also 9). Another issue to emerge is that the Parties to the Convention themselves and therefore not the Strasbourg supervisory organs are primarily responsible for ensuring national compliance with the Convention, and that this obligation to comply also extends to the legislature, the administration and the judiciary in these countries. This principle of subsidiarity is of crucial importance for the application problem. It implies that the High Contracting Parties are also primarily responsible for providing redress in case of violations of the Convention ( 4). According to the ECHR, the aforementioned obligation to comply does not imply that national courts are obliged to apply the Convention ex officio. However, it will be argued that according to Dutch national law the courts are usually bound to do so. Following this review of the Convention, the ECrtHR will be closer examined regarding, inter alia, the jurisdiction of this body in the Dutch legal order ( 5), the right of individual petition and the right of inter-state application ( 6, 7, resp.) and the investigation and judgement by this Court concerning the alleged violation ( 8). When examining the right of individual petition, not only will the admissibility requirements be reviewed ( 6.2), but also the question who can submit such a petition ( 6.1). This review indicates that, in the case of criminal proceedings, the application problem needs to be further elaborated for the convicted party and the victim, as well as for private parties in civil and administrative proceedings. This Chapter provides mainly arguments in favour of an application provision, but none of these is conclusive ( 9). As reopening a closed case because of an ECrtHR judgement will not be the obvious course of action if this judgement is neither legally or morally binding, I will address the binding force and the temporal effect of these judgements in Chapter III. Article 46 1 ECHR is of crucial importance for plaintiffs in whose favour the court has ruled ( 2.1). This Article obliges Parties to the Convention to abide by judgements of the ECrtHR in any case to which they are parties. These judgements thus have binding force and temporal effect regarding plaintiffs cases. For third parties, Article 1 and Article 52 ECHR are especially relevant ( 2.2). I will argue that, because of these Articles, all Parties are obliged to comply with all rules of law and interpretations of law handed down by the ECrtHR in its judgements, in cases that fall within the scope of these rules and interpretations. However, this only applies in as far as these rules and interpretations have been obtained by judicial interpretation as, in my opinion, these Articles do not stipulate binding force in case of judicial legislation. Next, I will explain why the thus presupposed general binding force (erga omnes effect) of the judgements of the Court is not fully retroactive in time, as is often assumed to be the case ( 3). In as far as a judgement of the ECrtHR is retroactively binding, this still does not imply that the Parties are obliged to have provisions that can lead to the reopening of proceedings because of such a judgement. This is why Chapter IV looks into the question whether such an obligation does in any other way follow from public international law, c.q. the ECHR. Here it is important that international law dis-

Summary 541 tinguishes between the obligation for cessation of continuing violations, and the obligation for reparation of committed violations ( 2.2). Different forms of reparation are restitutio in integrum (or restitution in kind), financial compensation, and satisfaction. The study frequently draws on this differentiation, inter alia, to distinguish between so-called substantive violations (which relate to the merits of a decision) and procedural violations (which relate to the form of a decision or the procedure through which the decision was reached) ( 3.1). So far, this does not clarify the question whether there is an obligation for reopening proceedings. Contrary to what is often assumed, this does, to a limited extent, appear to be the case ( 3.3). In addition, it is a relevant fact that the Convention, as well as the ECrtHR and the Committee of Ministers, prioritise restitutio in integrum. In concurrence with international law, particularly Articles 41 and 46 even appear to contain a heavy moral obligation for the Parties to strive for a situation in which they can at all times achieve a maximum of reparation ( 3.3). Furthermore, the Convention s stipulations related to legal protection (Article 5, Article 6 1, Article 13, and Articles 1, 2, and 3 Seventh Protocol) offer a basis for the conclusion that the possibility to obtain redress from Convention violations in general is a human rights. This underlines once more that a provision for the application of ECrtHR judgments in closed cases (an application provision) by its very nature is and should aim to be closely in line with the content and intent of the ECHR. 3 Application within existing national systems of legal protection Proceedings that are closed with a decision having power of res judicata can only be re-opened by taking recourse to special remedies. Therefore, it is necessary to discuss these remedies in order to determine to what extent it is possible to apply judgements of the ECrtHR to closed proceedings according to current law. In Chapter V, this will be done for criminal law, inter alia, by addressing the intent, effect, scope, and procedure of cassation in the interest of the law (cassatie in het belang der wet), revision (herziening), pardon (gratie), and the petitioning of the civil court. Of these, revision has recently with a new revision ground in Article 457 (1) (3) Dutch Code of Criminal Procedure, tailored to the decisions of the Court come to provide the most far-reaching possibilities to redress violations of the ECHR that were committed in closed proceedings. In this Chapter, the regulation concerning this ECHR revision ground and its argumentation by the legislator will be put forward and discussed in a technical, factual, and analytical manner (a fundamental-critical review will follow in Chapters X and XIII). The issue that comes to light is that the primarily instrumental basis on which the aforementioned revision ground rests appears to be essentially alien to the older existing regulation for revision, and that the legislator has made it insufficiently clear why a choice was made to embed the provision for the application of judgements of the Court in this regulation for revision ( 4). It appears that the ECrtHR revision ground cannot lead to redress for a number of different categories of violations committed during the administration of criminal law, that its application to third party cases is extremely limited ( 4.3-c), and that

542 Summary although it cannot de jure have a detrimental effect on the convicted party affected by the violation, it can do so de facto ( 4.4). Finally, I reach the conclusion that the ECrtHR revision ground and the related regulation may in themselves be perfectly defendable in many aspects, but that some questions can be raised concerning the clarity, the validity and the consistency of the argumentation which constitutes its basis, and occasionally also concerning the manner in which these aspects have been given form ( 7). Unlike revision, cassation in the interest of the law can in no way lead to redress of Convention violations. However, it does appear that, if necessary, this instrument can be used to obtain clarity about the meaning of an ECrtHR judgement for Dutch law ( 3). Pardoning and appealing to a civil court are relevant because of their safety net potential, as in certain circumstances the execution of sanctions imposed can be modified ( 5, 6.1, resp.). In addition, the civil courts can on occasion award damages to individuals who have been affected by violations of the Convention. In Chapter VI, the focus is on civil law, in particular on the following remedies: cassation in the interest of the law (cassatie in het belang der wet), third-party proceedings (derdenverzet) and revocation (herroeping; formerly: request-civiel). None of these remedies provides even the most general possibility to reopen an already closed civil case following a judgement of the ECrtHR in order to redress a violation of the Convention. Still, in highly specific and extraordinary circumstances the remedy of revocation could result in the reopening of a civil procedure because of a judgement of the Court ( 5.3). Because of this state of affairs, I will discuss whether it is desirable to create a more general possibility to reopen civil proceedings via judicial construction after judgements of the Court ( 5.4). This leads to the conclusion that proposals to this effect (as made by the District Court of The Hague in the Dombo case) should be rejected at least in principle. In addition to the remedies mentioned above, I will use this Chapter to discuss a number of possibilities that are unconnected to the system of legal remedies: compensation by the opposing party and by the State ( 5.6) and an injunction against execution of a judgement in a civil case ( 6). Administrative law provides somewhat wider opportunities for redressing violations of the Convention in closed cases, as becomes apparent in Chapter VII: unlike the remedies of objection and administrative appeal (bezwaar and administratief beroep) and spontaneous quashing (spontane vernietiging) by a higher administrative authority, administrative revision (bestuurlijke herziening) here offers an important, albeit limited, possibility for the application of ECrtHR judgements ( 5). It will be explained when and why a judgement by the Court could and should induce an administrative body to revoke an earlier order. Still, it is argued that this in no way means that a new order by the administration will in all cases be an adequate means to redress what a judgement of the ECrtHR has established to be a violation of the ECHR. Next, this Chapter will focus on several special legal remedies on the level of the courts: cassation in the interest of the law (cassatie in het belang der wet), revision (herziening) and the extra-legal nullification ex

Summary 543 officio (ambtshalve vervallenverklaring). Within these remedies, no generally applicable application possibility can be found. Otherwise I am of the opinion that, for administrative law, too, it is in principle undesirable to create via judicial construction a more general facility for reopening proceedings after an ECrtHR judgement ( 8.3-e). Finally, administrative law, too, offers some possibility to obtain compensation from an opposing party or from the State through the courts, and to seek an injunction against the execution of a judgement ( 8.5). 4 Reopening provisions in other countries Chapter VIII begins with the observation that the Member States of the ECHR appear to take a positive stance toward the possibility of reopening procedures on the basis of ECrtHR judgements in itself ( 1). Against this background, I explore to what extent and in which manner the different Member States are actually able to provide redress of Convention violations by reopening closed proceedings following judgements of the ECrtHR. In as far as countries do have reopening provisions specifically focussing on the judgements of the Court, the following themes are discussed: the basis of the provision; plaintiffs and third parties; substantive and procedural violations; whether a relation between the Convention violation and the outcome of the original trial is required; who has recourse to the provision; temporal limitations; the competent application authority; financial compensation. The EU countries will be discussed first, several of which have special provisions in the field of criminal law ( 3). Conversely, no country within the EU has a special provision for civil law and/or administrative law. There are also several countries with special application provisions outside the EU ( 4). In all these countries, reopening after a judgement of the Court is possible in the field of criminal law, and sometimes also in civil and administrative cases. Finally, those states that have not yet been discussed will be briefly reviewed ( 5). Next, I will compare the different special provisions, and conclusions will be drawn ( 6). For this, the aforementioned topics constitute the guiding principle, albeit that, within this review, attention will be frequently given to the regulation concerning Article 457 (1) (3) Dutch Code of Criminal Procedure. This will lead to the conclusion that the Dutch regulation differs fundamentally from application provisions in other countries only in relation to its foundations: whereas other states usually emphasise legal protection, the Netherlands also puts forward several more instrumental considerations, which even appear to constitute the primary reason for introducing the provision ( 7). In the preceding and following Chapters, reference is frequently made to regulations in other countries. 5 Arguments used in the deliberations and deliberations in different areas of law Should there be possibilities in Dutch law to reopen proceedings in order to redress violations of the ECHR that have become apparent through judgements of the ECrtHR? To answer this question, which is central to this study, I will first explain the different arguments for and against a possibility to reopen proceedings following

544 Summary judgements of the Court. Next, I will try to resolve the stalemate that is caused by this dichotomy with the help of a framework of different deliberation criteria that relate to the purpose of the process in respect to different subjects of the law, on the one hand, and, on the other, the consideration that the rule of law deserves protection. The explanation of the different arguments can be found in Chapter IX. The issues that will come up for discussion are, inter alia, the principle of subsidiarity, the obligation to cease continuing violations, and the primacy of restitutio in integrum ( 2), the possibility to create clarity concerning judgements of the ECrtHR via an application provision ( 3), the authority of the ECrtHR and national courts ( 4), the workload that an application provision would impose on these authorities ( 5), the internal limits of the closed system of remedies ( 6), the fact that reopening trials results in lengthening of procedures ( 7), the symbolic value of application provisions ( 8), and the impact that future modifications of the Strasbourg enforcement mechanisms could have on the application problem ( 9). None of the arguments which are the outcome of this discussion are a priori conclusive either in favour or against reopening. The same applies to the discussion on justice which follows and which produces equally conflicting arguments ( 10). Concerning the application problem, these come down to the following. Justice strictu sensu requires that the state: (a) guarantees human rights (distributive justice, among other things, according to: the ECHR, the rule of law, human dignity), and (b), where necessary, provides redress in case of a violation of the ECHR by reopening the procedure (corrective justice, among other things, according to: the principle of equality, the sense of justice, the principle of trust, the principle of solidarity, the preventative effect, the neutralisation of denial of human rights). Justice in the sense of legal security requires, in principle, (a) general protection of the procedural systems from the possibility of proceedings continuing ad infinitum, and (b) protection against the reopening of concrete cases and rescission of concrete final judgements with power of res judicata (for the sake of security in realisation and orientation). To provide an answer to the application problem for criminal law, firstly, the purpose of the criminal trial will be explored in Chapter X. Ultimately, this purpose can be described as judicial peace (rechtsvrede) ( 2). In relation to individual criminal trials, I refer to judicial peace if there is a general feeling within society that the criminal act has been dealt with in a sufficiently adequate manner, and if it can be expected both of the suspect and of the possible victim of the crime that they accept at least the judicial process in this criminal case. This judicial peace will have to be achieved in a manner that is acceptable within the rule of law ( 3). In order to weigh the arguments of justice strictu sensu and legal security, I will review both for plaintiffs ( 5.1) and third parties ( 5.2), and in relation to substantive as well as to procedural convention violations, whether the criminal trial in spite of the violation contained therein has led to a judicial peace which is acceptable in a state under the rule of law. This will be done from three perspectives: the individual affected by the violation, society, and the rule of law.

Summary 545 If there is an obstacle from even one of these perspectives, then the criminal trial has not met its primary purpose in an acceptable manner. If such is the case, it may be assumed that the case has to be reopened. Nevertheless, it still will be reviewed whether the interests of the victims should not oppose this. Furthermore, all the other arguments discussed in Chapter IX will be taken into account in the final deliberations. The ECrtHR revision ground from Article 457 (1) (3) Dutch Code of Criminal Procedure will also be drawn into the deliberations. The deliberations will lead to the conclusion that it is desirable for a provision to exist within criminal law, which, in case of Convention violations relating to closed criminal cases, would allow restitutio in integrum in favour of the defendant affected by these violations and therefore not of the victims of offences ( 5.3) and which could end continuing violations. In order to achieve this, the application provision should at least be able to result in nullification of the decision with power of res judicata, and therefore in reopening of the trial if this could contribute to redress (according to point 1 of the central question of this book, stated earlier). The provision should apply to substantive as well as procedural violations. Next to plaintiffs ( 5.1-2), the provision, in my view, should also be available to third parties, who also in substance, have exhausted all the national remedies to point out a violation of human rights to the state ( 5.2-c). However, these third parties only have access to the provision in as far as they refer to judgements of the Court against the Netherlands. Finally, the regulation which I propose will be briefly compared with the legal regulation (Article 457 (1) (3) Dutch Code of Criminal Procedure) and some positions will be put forward as to what extent third parties should retain the possibility to appeal to a (national) civil court in interim injunction proceedings (rechter in kort geding) ( 6). In Chapter XI, the desirability of a possibility to reopen proceedings following judgements of the ECrtHR will be assessed for civil law. I will use a structure similar to the one used for criminal law. Here, it will be reviewed for plaintiffs ( 5.1) and for third parties ( 5.2) whether a civil case, in spite of a violation committed therein, is acceptable, on the one hand, for the party affected by the violation (see 2 on the purpose of civil proceedings), and from the point of view of the rule of law, on the other (see 3). Within this review, the interests of the opposing party are also discussed. This finally results in the conclusion that, for civil law too, it is desirable to have access to an application provision. But this provision has to be essentially different (i.e., more limited) from the provision for criminal law. It should only be open to plaintiffs ( 5.1-d; for third parties, see 5.2-d), and even then only if the violation fundamentally affected the final civil decision and reopening can actually contribute to restitutio in integrum. Because of this, the provision will not be applicable in many cases of procedural violation. Furthermore, the application court should at all times need to have the authority to refrain from reopening, if the interests of the (opposing) parties and other interested parties would be disproportionally damaged. At the end of the Chapter, the application provision that I deem to be desirable will be further fleshed out ( 6).

546 Summary The considerations concerning the desirability of an application provision for administrative law in Chapter XII will also more or less follow the structure that was used for criminal law (and civil law). Again, the acceptability of the proceedings for plaintiffs ( 5.1) and third parties ( 5.2) will be weighed against the background of the violation from the perspective of the purpose of administrative proceedings (see 2) and the rule of law (see 3). Next, among other things, the interests of other parties involved will be brought into the balance. For administrative law too, this leads to the conclusion that it is desirable that procedures can be reopened in the light of ECrtHR judgements. But this would require a regulation that differs marginally and strongly, resp. from the those that, in my opinion, should apply to civil law and to criminal law. In my view, the provision should only be applicable if a violation has been committed against a plaintiff ( 5.1-d; for third parties, see 5.2-d) that has influenced the final ruling of the trial. Unlike the proposed civil provision, this need not be a fundamental influence. However, in this case too, it should apply that reopening is only appropriate in as far as it can actually contribute to restitutio in integrum. Furthermore, the court should always have the authority to turn down an application request if reopening would disproportionally damage the interests of private parties to the proceedings, and/or of citizens who were not parties to the trial. It should not have this authority for the benefit of the administration. Finally, there follows a brief elaboration of the regulation that I think to be desirable ( 6). 6 Elaboration of a application provision in criminal law Finally, Chapter XIII gives an elaboration of the application provision that I feel should be available in criminal law (see point 2 of the central question of this book, stated earlier). In this context the ECHR revision ground from Article 457 (1) (3) Dutch Code of Criminal Procedure is frequently discussed. After explaining why it is not desirable to provide a general regulation for all areas of national law ( 1), I will develop a number of general principles for a regulation in criminal law. Convention violations should thus be primarily dealt with as violations of the rights of individuals, and when achieving redress and/or cessation the application procedure should be primarily focussed on those violations and those individuals ( 2). Furthermore, as a matter of principle, the emphasis should be on restitutio in integrum when providing redress ( 3). And thirdly, the application court should have at its disposal such a wide range of means of restitution and compensation that, taking into consideration the interests at stake, it can in principle always provide reparation in the most adequate manner possible, which is then also its duty ( 4). The provision based on these general principles should provide redress for all possible violations of the ECHR in the field of criminal law, i.e., also for violations which in principle are entirely unconnected to the criminal trial and its outcome. Here it is relevant that it may be necessary to reopen the original criminal case in order to achieve redress, although this certainly will not always be the case ( 5). Next, it is discussed whether violations of the Covenant on Civil and Political Rights and other UN-treaties should also fall under this regulation ( 6). Ultimately,

Summary 547 my answer to this question is affirmative. In the meantime, the application provision can concur with other national remedies in criminal law, with the possibility to appeal to the civil court in interim injunction proceedings and with the Strasbourg Article 41 Procedure. This too is explored ( 7). Furthermore, attention is given to the victim of the criminal act. The position is defended that any damages that may have been awarded to the victim in the course of the original criminal trial should be left unaffected ( 8). To achieve reparation, the court, in my opinion, should be able to decide in favour of the following ( 9.1 9.3): a (partially) new hearing of the case; a bar to the public prosecution; exclusion of evidence when the evidence could only have been unlawfully obtained; adjusting the sentence; financial compensation. Acknowledging the violation as such should not be used by the national court as a means of reparation. As regards cessation of continuing violations, the court should have the following remedies at its disposal: quashing/overturning final verdicts with power of res judicata; amending punishments and penal measures; immediate suspension, restricting or changing of the enforcement of the order or sentence ( 9.4). To determine which form of redress is adequate, some criteria are offered to the court ( 10). In addition, it is important that the application procedure should never result in imposing sanctions that are higher or more severe than those imposed in the quashed verdict. Furthermore, in my view, such a procedure should never lead to a result which is less favourable for the plaintiff or for a third party than the most unfavourable outcome to which the original trial could have led in the then prevailing circumstances if the Convention had been fully taken into consideration ( 11). Additional protection against a de facto unfavourable procedure will also be offered to an individual by denying the state the right to make use of the application remedy ( 12). Application should take place at the Supreme Court (Hoge Raad) ( 15), but within time limits ( 13), and the presentation of a written document should be mandatory ( 14), as I will argue. The closing of the Chapter contains an outline of the application procedure ( 16). Here I will, inter alia, explore the different alternatives that are at the Supreme Court s disposal when upholding the request, and the procedure when referring the case (back) to an Appeal Court (gerechtshof). I will also indicate where the provision proposed by me, which differs considerably from the regulation introduced by the legislator, could be accommodated. Translation: S. Rientjes