Chapter IX - The Dialogicness of Procedures in the (Pre-)Merits Phase

Summary

Part 2 has established the dialogic potential of Convention-related procedures on paper and gave an overview of procedures with limited, some or clear dialogic potential. The question whether these procedures translate their dialogic potential on paper into dialogicness in practice is answered in the part 3, which commences with this chapter.

The way in which the relevant procedures are supposed to function on paper was already described in part 2. This chapter supplements these descriptions by outlining how these procedures function in practice. Subsequently, the functioning in practice of these procedures is assessed in the light of the seven indictors for dialogue so as to make it possible to draw conclusions as to the dialogicness of the procedures in practice.

THE FUNCTIONING OF THE PROCEDURES IN PRACTICE

Communication

Methodology

In this section, not only the questions which the Court poses to the parties in the ‘Statement of Facts and Questions’ when communicating a case are discussed, but also the state's written observations submitted in response to that statement. Prior to this describing this however, other contacts between the respondent state and the Registry are described.

This section is written, in addition to based on sources such as the research interviews, in part based on a selection of communicated cases from the ‘Communicated Cases 2010-2011’ documents collection on HUDOC. The selection was made by performing a search in the collection on 24 January 2014, with language filter ‘English’. The results, in total 3286, were sorted by the newest date, and the first 50 results were selected. All communications referred to in this chapter result from this selection, unless otherwise indicated.

Before and after a case is communicated to the state, contacts can take place between the Court (in the person of case lawyers and other persons working for the Registry) and the respondent state (in the person of agents representing a state before the Court). Whether these contacts take place depends on how well persons know each other and whether they have a friendly working relationship. Such relationships are sometimes maintained by setting up informal meetings whenever an agent is in Strasbourg, but the contacts are also in writing, or by phone or e-mail. As an interviewee noted, the Registry is rather approachable for government agents.