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Legal Aid Before Human Rights Treaty Monitoring Bodies

Published online by Cambridge University Press:  17 January 2008

Andrew S. Butler
Andrew S. Butler
Affiliation:
BCL (NUI, Dub), LLM (York, Canada), Senior Lecturer, Faculty of Law, Victoria University of Wellington, New Zealand; Barrister and Solicitor of the High Court of New Zealand; Solicitor (England & Wales); Researcher, European University Institute, Florence. Most of the research for this paper was conducted in 1997 at the EUI. Sincere thanks to Scott Davidson for help on the Inter-American Convention, to Andrew Drzemczewski for commenting upon a draft of this piece and for assistance on a number of points, to Alexandre Fluckiger for assistance with Swiss materials, to Don MacKay for comments on a draft, to Michael O'Boyle for valuable comments on an earlier draft of the paper, and to various Council of Europe correspondents for information on the availability of domestic legal aid for international proceedings—individual acknowledgements accompany the appropriate jurisdictional entry. Comments both negative and positive are most welcome: Andrew.Butler@vuw.ac.nz.
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The right of individuals to have recourse to international human rights bodies has been regarded as one of the most significant developments in securing respect for and the promotion of universal fundamental rights and freedoms.1 First, it ensures that individuals subjected to human rights violations have an alternative forum should the domestic judicial forums not be persuaded of the existence of rights violations, for whatever reason. Secondly, the availability of an individual's right of recourse affirms the fact that the individual is an actor cognisable by international law, and is not dependent on the intervention of other States for the safeguarding of his or her rights.2 This is particularly important, as many States are slow to engage complaint mechanisms against another State for fear of reprisal (be it in the form of economic or political sanctions, or the instigation of a complaint under the same mechanism by the other state), lack of interest, or otherwise.3 Thirdly, the existence of such fora, and the right of individual complaint from a variety of countries, are useful in developing a common universal standard of human rights observance.4 The combined result of these is that implementation of the goals set out in the international human rights instruments is facilitated because the means for their enforcement are not dependent upon international politics but rather are put in the hands of the rights holders. In turn, such machinery should improve State compliance.5

Type
Articles
Information
International & Comparative Law Quarterly , Volume 49 , Issue 2 , April 2000 , pp. 360 - 389
Copyright
Copyright © British Institute of International and Comparative Law 2000

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References

1. See Tardu, M. E., “Conclusions: Petition Systems and the Future Shock”, in M. E. Tardu, Human Rights: The International Petition Systems (part issued May 1979), p.1Google Scholar. The absence of an individual complaint mechanism has been for many years a major deficiency in the implementation of the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”): see e.g. Cartwright, S., “Rights and Remedies: The Drafting of an Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women” (1998) 9 Otago L Rev 239.Google Scholar

2. See Cassese, A., International Law in a Divided World (1986), pp.99–103Google Scholar and van Dijk, P. & van Hoof, O. J. H., Theory and Practice of the European Convention on Human Rights (2nd edn, 1990), p.38. The complainant is, of course, dependent on State acceptance of the communication jurisdiction.Google Scholar

3. Inter-State complaints have made up a tiny percentage of the work of the European Convention organs. No inter-State complaints have been submitted under the International Covenant. By 1994 the African Commission on Human and Peoples' Rights had received over 140 individual complaints but not one inter-State complaint: Salem, H. B., “The African System for the Protection of Human and Peoples' Rights” (1994)8:3 Interights Bulletin 55, at p.57Google Scholar. As Avery, “The Human Rights Committee after Six Years” cited by Opsahl, T., “The Human Rights Committee”, in ***Alston, P. (Ed.) The United Nations and Human Rights: A Critical Appraisal (1992) at p.420Google Scholar states: “There is something almost naive about a system that assumes that a government will gratuitously come to the help of foreigners at the risk of compromising its relationships with other States.” For similar comments see also Cassese, op cit, supra n.2, p.3O4, van Dijk & van Hoof, op cit, supra n.2, p.36, Humphrey, J. P., “The International Law on Human Rights in the Middle Twentieth Century”, in **Bos, M. (Ed.), The Present State of International Law and Other Essays (1973), p.86Google Scholar, Meron, T., Human Rights Law-Making in the United Nations (1986), pp.81–82Google Scholar, Nowak, M., UN Covenant on Civil and Political Rights: CCPR Commentary (Kehl-am-Rhein: N. P. Engel, 1993), pp.584–585.Google Scholar

4. Drzemraewski, A., European Human Rights Convention in Domestic Law: A Comparative Survey (1983), p.10Google Scholar and Singh, N., Enforcement of Human Rights in Peace and War and the Future of Humanity (1986), p.53.Google Scholar

5. Speaking of the individual petition under the European Convention, Singh, op cit, supra n.4, p.48 observes that “Without this right the Convention would lose most of its efficacy”, while Bossuyt, M., “International Human Rights Systems: Strengths and Weaknesses”, in Mahoney, K. E. and Mahoney, P. (Eds), Human Rights in the Twenty-First Century: A Global Challenge (1993) (hereafter Bossuyt Strengths and Weaknesses), p.49 states that the individual petition system is “the cornerstone of any efficient system of international protection of human rights”.Google Scholar

6. The issue has not attracted significant academic interest. Even the majesterial project on access to justice under the general editorship of Professor Mauro Cappelletti Access to Justice (1978) does not appear to cover it. For a detailed study of the legal aid scheme operated by the European Court of Justice, see Kennedy, T., “Paying the Piper Legal Aid in Proceedings before the Court of Justice” (1988) 25 C.M.L.R. 559.Google Scholar

7. A number of other human rights instruments provide a jurisdiction under which individuals may submit complaints of rights violations against states parties which have accepted that jurisdiction. For example, the Inter-American Convention on Human Rights (1969, entered into force 1978) provides such a complaint mechanism to the Inter-American Commission of Human Rights and the Inter-American Court of Human Rights (see Arts.44 and 62). The African Charter on Human and Peoples' Rights (1981, entered into force 1986) contemplates the possibility of an individual complaint mechanism to the African Commission on Human and Peoples' Rights (see Arts.55 et seq. ). Under Art.14 of the Convention on the Elimination of All Forms of Racial Discrimination, the eponymous Committee (CERD) and under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Committee against Torture (CAT) may accept complaints from individuals where a state party has accepted the Committee(s)'s jurisdiction in such matters. The Convention on the Elimination of All Forms of Discrimination Against Women does not provide for an individual complaint procedure, although an Optional Protocol which would allow for the right of private petition was opened for signature on 10 December 1999: see generally Byrnes, A., “Slow and Steady Wins the Race? The Development of an Optional Protocol to the Women's Convention” (1997) 91 Proceedings A.S.I.L. 383 and Cartwright supra n.1.Google Scholar Apparently, there are no provisions for legal aid in the inter-American system. Arrangements for legal aid, if any, are left to the members states of the OAS or states parties to the IACHR. Significantly, much of the work done for complainants from the United States of America has been undertaken by lawyers working for non-governmental organisations or by private lawyers workingpn? bono. In many of the poorer member states, individuals and groups pursue claims without the input of a lawyer. Many of these claims are fact driven and do not require precise legal analysis, and so, according to Scott Davidson, author of The Inter-American Court of Human Rights (1992), applicants do not necessarily suffer greatly from the lack of legal assistance. I am very grateful to Scott for supplying me with this information.

8. Convention on Human Rights and Fundamental Freedoms (1950) 87 U.N.T.S. 103.Google Scholar

9. Clements, L. J., European Human Rights: Taking a Case under the Convention (1994), pp. 94–99Google Scholar contains a useful summary of the (old) scheme provided in relation to proceedings before the Convention organs, including as Apps.8 and 9 the Commission and Court rules on legal aid.

10. Gomien, D., Harris, D. & Zwaak, L., Law and Practice of the European Convention on Human Rights and the European Social Charter (Council of Europe Publishing, 1996), p.52Google Scholar. Interestingly, in the documentation related to the establishment of the Commission scheme, it is clear that the concerns expressed were not solely related to securing individual access to the Strasbourg organs. In a memorandum accompanying a letter addressed by the President of the Commission (Sir Humphrey Waldock) to the Secretary-General of the Council of Europe dated 24 Mar. 1961 (to be found in CM(63)91, App.1.2) it was stated that legal aid “is essential not only 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 the case have been adequately presented to it by the parties.” See also the extract from a Supplementary Memorandum of the Commission dated 22 Mar. 1962, entitled “On the Question of Granting Free Legal Aid” in COM(63)91, App.1.4.

11. The means test is not governed by the rules of domestic means-tested legal aid schemes. Hence, it can be the case that the Convention organs will allow an applicant legal aid, where that person would not qualify under national schemes. However, national authorities which are involved in the process as an applicant must first approach the relevant national authority for a declaration of lack of means, and the particular High Contracting Party will be asked for its views on the application for legal assistance.

12. The expenses are reimbursed in French Francs. As at the date of writing the French Franc had a value of approximately three and a half francs to one Euro and US dollar respectively. Thanks to Erik Fribergh of the European Commission for providing me with this information.

13. The legal aid rate guidelines distinguish between average amounts and maximum amounts. The average rates are to be offered “in all cases except where the Registrar in charge decides, having regard to special circumstances, that it is justified to offer less (no minimum fixed) or more (up to the maximum amounts).” No offer of legal aid is to be made in cases “which concern exclusively length of procedure.” In cases which involve following clearly established case law the Registrar has a discretion whether or not to offer legal aid. The maximums are in order of listing in the text, FFr 3,000, 2,000, 1200, 1,200, 2,000 and 500.

14. Sincere thanks are due to Incite Boerefijn at the Netherlands Institute of Human Rights, Utrecht for a comprehensive response to queries related to the Dutch legal aid scheme. In turn assistance was given by the Dutch Ministry of Justice (Department of Legal Aid) and the Amsterdam Council of Legal Aid.

15. I am very grateful to Judge Erik Møse of the Borgarting Court of Appeals, Oslo for a very full and thorough response to my queries on the Norwegian system.

16. Act 35 of 13 Jun. 1980 as amended.

17. Norges offentlige utredninger 1976: 38, p.93 and Odelstingsproposisjon No.35 (1979–80) pp.93–94.

18. See Ministry of Justice circular G–73/96, p.111.

19. In the three cases where violations were found and the Court had to address itself to Art JO claims for just satisfaction the judgment explicitly notes that legal aid had been paid by the Norwegian authorities; see Norway, E v. (1990) 17 E.H.R.R. 30Google Scholar, 58 para.68, Botten v. Norway (50/1994/497/579, judgment of 19 Feb. 1996) para.55 and Johansen v. Norway (1997) 23 E.H.R.R. 33,96 para.93. In the one case where no violation was found, Eriksen v. Norway (102/1995/608/696, judgment of 27 May 1997), I understand through Judge Møse that legal aid was granted by the Norwegian authorities.

20. Thanks to Dr Dalibor Jilck of Masarykory University, Brno for assistance on the Czech position on this point.

21. See Loi No. 91–647 relative à l'aide juridique, Arts.10 and 15.

22. My thanks to Professor Jochen A. Frowein for information on this point.

23. Civil Legal Aid Act 1995.

24. My thanks to the Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Lund for assistance on the Swedish position.

25. See Clements, op cit., supra n.9, p.93.

26. Betænkning 1113/1987 om advokatretshjælp, fri proces, retshjælpsforsikring, pp.97–99. The committee in charge of the report noted and appears to concur in the opinion of the Ministry of Justice that there was no legal basis on which legal aid could be made available for international tribunal litigation.

27. Ibid. See also Lorenzen, P., Rehof, L. A. & Trier, T., Den Europttiske Menneskcret-skonvention mtd kommentarer (Jurist-og Økonomforbundets Forlag, 1994), p.348Google Scholar, who are critical of the lack of funding for Convention cases. I am extremely grateful to the Danish Centre for Human Rights, Copenhagen, in particular Jens Vedsted-Hansen, for explaining the Danish position on the issue to me.

28. Op cit, supra n.24.

29. Portugal would appear to be one example: correspondence between the author and José Manuel Santos Pais of the Procuradora Geral da República, Lisbon.

30. Others have commented that the Convention scheme is “not generous” (N.Sansonetis, “Costs and Expenses”, in Macdonald, R., Matscher, F. & Petzold, H. (Eds), The European System for the Protection of Human Rights (1993), p.762)Google Scholar provides “meagre, if not derisory” fees (Harris, D., O'Boyle, M. & Warbrick, C., Law of the European Convention on Human Rights (1995), p.665)Google Scholar which amount to “little more than a nominal payment” (Clements, op cit, supra n.9, p.97). The limited nature of the Strasbourg scheme was noted in a Danish report on legal aid: see Betankning 1113/1987, op cit, supra n.26, p.98 and 99.

31. (1982) 5 E.H.R.R. 183 (Art.50), para.23.

32. Where an applicant is successful in establishing a violation of the Convention before the Court of Human Rights, he or she can claim the full legal costs actually and reasonably billed by his or her lawyer against the State concerned (invoking the Court's “just satisfaction” jurisdiction under Art.50 of the Convention). If the applicant has received any legal aid assistance from the Convention organs that sum will be deducted from the sums billed and the State will be ordered to reimburse the difference. One might query why the losing State is not required to reimburse the Council of Europe the sums for the legal aid given to the successful applicant under the Strasbourg schemes. It seems somewhat of a windfall for the losing State to avoid paying legal costs which it would have had to pay in full, if the successful applicant had not been legally aided. Any alteration in current practice might require a change to the Court rules. Interestingly, under its legal aid scheme, the European Court of Justice can clawback legal aid: see Kennedy op cit., supra n.6, pp.575–578.

33. In Young, James A Webster v. United Kingdom (1982) 5 E.H.R.R. 201 (Art.50) the Court observed (at para.15) that: “high costs of litigation may themselves constitute a serious impediment to the effective protection of human rights. It would be wrong for the Court to give encouragement to such a situation in its decisions awarding costs under Art.50. It is important that applicants should not encounter undue difficulties in bringing complaints under the Convention and the Court considers that it may expect that lawyers in contracting States will co-operate to this end in the fixing of their fees.”

34. Both quotations to be found at (1980) 2 E.H.R.R. 433, para. 15.

35. Adopted by the Committee of Ministers on 2 Mar. 1978 at the 284th meeting of the Ministers' Deputies.

36. Cause X of the Report of Committee IV, International Congress of Jurists, New Delhi, 1959 expressed this point very well: Equal accest to law for the rich and poor alike is essential to the maintenance of the rule of law. It is, therefore, essential to provide adequate legal advice and representation to all those, threatened as to their life, liberty, property or reputation who arc not able to pay for it. This may be carried out in different ways and is on the whole more comprehensively observed in regard to criminal as opposed to civil cases. It is necessary, however, to assert the full implications of the principle, in particular in so far as “adequate” means legal advice or representation by lawyers of the requisite standing and experience. This is a question which cannot be altogether dissociated from the question of adequate remuneration for the services rendered. Hie primary obligation rests on the legal profession to sponsor and use its best effort to ensure that adequate legal advice and representation are provided. An obligation also rests upon the State and the community to assist the legal profession in carrying out this responsibility, (emphasis added.) Appendixed to the Law of Lagos, a resolution passed at a Rule of Law conference organised by the International Commission of Jurists, 7 Jan. 1961, reproduced in Hamalengwa, M. et al. The International Law of Human Rights in Africa: Basic Documents and Annotated Bibliography (1988), p.46.Google Scholar

37. It should be noted that the Resolution only calls on member states to progressively work towards the realisation of its principles.

38. (Strasbourg: Council of Europe, 1992) H(92)2, p.19, para.51. This comment was made after it had been noted that a number of domestic legal aid schemes fix payments at rates unrelated to the actual costs which counsel may incur.

39. (1966) 999 U.N.T.S. 302. For comments on the complaints procedure before the HRC see e.g. de Zayas, A., Möller, J. T. & Opsahl, T., “Application of the International Covenant on Civil and Political Rights under the Optional Protocol by the Human Rights Committee” (1985) 28 G.Y.I.L. 9Google Scholar, Ghandhi, P. R., “The Human Rights Committee and the Right of Individual Communication” (1986) 57 B.Y.I.L. 201Google Scholar, McGoldrick, D., The Human Rights Committee (1991)Google Scholar and Schmidt, M., “Individual Human Rights Complaints Procedures Based on United Nations Treaties and the Need for Reform” (1992) 41 I.C.L.Q. 645.CrossRefGoogle Scholar

40. See McGoldrick, op cit., supra n.39, p.134.

41. See supra n.14.

42. See supra n.15.

43. See the affidavit of D. J. MacKay (Director, Legal Division, Ministry of Foreign Affairs, Wellington, New Zealand) (hereafter “MacKay affidavit”) made in preparation for the Court of Appeal hearing in Tangiora v. Wellington District Legal Services Board. This affidavit sets out the responses received by the Ministry from a number of foreign governments which are parties to the Optional Protocol in relation to questions concerning the availability in those States of legal aid for communications to the HRC.

44. (1996) 3 HRNZ 267 (HC).

45. (1997) 4 HRNZ 136 (CA).

46. Privy Council App No 8 of 1999, 4 October 1999 (“Tangiora (PC)”). The High Court decision was criticised by Robertson, B., “The Human Rights Committee as a ‘Judicial Authority’” (1997) 3 HRLP 5Google Scholar and Editorial, “Courts or Committees?” [1996] N.Z.L.J. 433.Google Scholar

47. See McGoldrick, op cit, supra n.39, p.134. In Gomien et al op cit., supra n.10, p.52 it is noted that “domestic legal aid systems in most Council of Europe countries do not cover costs of pursuing international legal actions”. For example, Denmark does not provide assistance for complainants to the HRC: see the same sources cited supra nn.26–27. In addition, according to the MacKay affidavit, supra n.43, no legal aid is available from Austria, Belgium, Canada, Chile, France, Germany, Ireland, Italy, Korea (South), the Philippines or Sweden.

48. Comm. No. 675/1995 (10 July 1998, decision on admissibility) at para. 6.2

49. In the Tangiora case, op cit., supra n.46 the plaintiffs' application to the defendant legal aid board sought an amount of NZ$89,960 (approx. US$50,000).

50. Shaw, A. & Butler, A. S., “The New Zealand Bill of Rights comes Alive (I)” [1991] N.Z.L.J. 400, p.402 citing to authority.Google Scholar

51. See views adopted by the HRC in (1982) A/37/40, p.94; (1980) A/35/40, p.119. See also Merrills, J. G., The Development of International Law by the European Court of Human Rights (1988)Google Scholar, Chap.5 entitled “The Effectiveness Principle” and Ramcharan, B. G., The Concept and Present Status of the International Protection of Human Rights (1989), p.37Google Scholar. For a discussion of the principle of effectiveness is relation to the work of the International Court of Justice and its importance in that Court's work, see Lauterpacht, H., The Development of International Law by the International Court (1958)Google Scholar, Chaps.14–19.

52. See e.g. Maxwell v. UK (1994) 19 E.H.R.R. 97, paras.41 and 45,Boner v. UK (1994) 19 E.H.R.R. 246, Granger v. UK (1990) 12 E.H.R.R. 469.

53. See e.g. The State (Healy) v. Donoghue [1976] l.R. 325. 350 (Ir.S.C) and Powell v. Alabama, 287 US 455 (1938) (USSC).

54. See e.g. Gormien et al, op cit, supra n.10, p.172.

55. Certainly this would seem to be anecdotally true of the Convention system. A random check of European Convention cases in the author's research file indicated that the number of government counsel and/or advisers appearing before the Strasbourg Court regularly and significantly outnumbered those appearing for the complainant: see e.g. Miailhe v. France (1993) 16 EHRR 332 (5–2 counsel); Murray v. UK (1996) 22 EHRR 29 (3–2 counsel; 3–1 advisers); Malige v. France (1998) 28 EHRR 578 (5–1 counsel).

56. See to similar effect, Davidson, S., “Individual Communications to the United Nations Human Rights Committee: A New Zealand Perspective” [1997] N.Z.L.Rev. 373, at p.390.Google Scholar

57. For a detailed discussion of Art.6.3(c) see Stavros, S., The Guarantees for Accused Persons Under Art.6 of the European Convention on Human Rights (1993), pp.201–221.Google Scholar

58. For the rules operative in Council of Europe member states, see the useful report Implementation of the Right to a Fair Trial Guaranteed by Art.6.1 of the European Convention on Human Rights and of the Provisions Included in Art.6.3 in Particular Procedures (Strasbourg: Council of Europe, 1993) H/SG(93)1 passim. The HRC recently reaffirmed the fact that Art.14.3(d) “does not entitle an accused to choose counsel provided free of charge”: Werenbeck v. Australia Comm.579/1994, para.9.4 (27 Mar. 1997).

59. In relation to Art.6 of the Convention, see e.g. Artico v. Italy (1980) 3 E.H.R.R. 1 (ECtHR), Biondo v. Italy App. No.8821/79 64 D.R. 5 (1983) and Imbroscia v. Switzerland (1993) 17 E.H.R.R. 441, para.38 (ECtHR) (no violation found). See also Stavros, op cit, supra n.52, pp.214–219. In relation to Art. 14.3(d) of the Covenant see e.g. Collins v. Jamaica Comm. No. 356/1989, para. 8.2 (25 Mar. 1993) and Chaplin v. Jamaica Comm. No. 596/1994, para. 8.3 (2 Nov. 1995).

60. Readers may be interested to note that the Statute of the International Criminal Tribunal for the Former Yugoslavia provides the right of an accused to choose his own counsel where (s)he can afford it or to have defence counsel appointed free of charge by the Tribunal itself: Art.21 (4)(d). However, according to Antonio Cassese, “The International Criminal Tribunal for the Former Yugoslavia and Human Rights” [1997] E.H.R.L.R. 329, pp.338–339 the Tribunal in practice allows a defendant to select counsel who will then be paid by the Tribunal registry.

61. Artico, op cit., supra n.54, para.33 (ECtHR).

62. Airey v. Ireland (1979) 2 E.H.R.R. 305 (ECtHR). The Court observed (at para.25 (citations omitted)): … hindrance in fact can contravene the Convention just like a legal impediment. Furthermore, fulfilment of a duty under the Convention on occasion necessitates some positive action on the part of the State; in such circumstances, the State cannot simply remain passive, and “there is … no room to distinguish between acts and omissions”. The obligation to secure the effective right of access to the courts falls into this category of duty. In Airey, it was found that the instant proceedings involved: (a) procedural complexity; (b) the need to present expert evidence; (c) considerable emotional strain; and (d) imbalance in that the other party had secured the services of a lawyer (from private funds) such that personal representation was an inadequate realisation of the Art.6(1) right.

63. Adopted on 12 Apr. 1984 at the 21st session of the HRC, para.1.

64. In relation to Art.14.3(d) the HRC merely noted the lack of supply of information on this matter. The jurisprudence of the HRC on legal aid has arisen entirely in the criminal field. From the cases it seems that whether legal aid should be made available depends on the seriousness of the charge and the potential punishment. See the cases cited by Nowak, op cit, supra n.3, p.260, n.140. As regards civil legal aid some tangential support may be gained from the HRC's views on Morael v. France Comm. No.207/1986 (28 July 1989). Morael involved a bankruptcy hearing. The HRC held that a very important condition for the observance of Art.14's fair hearing requirement was respect for the principle of equality of arms. While the HRC found there to be no violation in the instant case, and did not have to deal with any claim concerned with the provision of legal aid, its holding in a civil setting that equality of arms must be observed provides some hope that legal aid will be seen as appropriate in civil cases. This should be even more so where the opposing party is the State itself.

65. This type of argument was invoked by Gallen J of the High Court in Tanglora, op cit., supra n.46, pp.278 and 283 to justify his ruling that legal aid be granted for complaints under the Protocol. This element of control is of importance. An undiscriminating application of state responsibility for violation of Art.6 before international tribunals could result in states parties being held responsible for delays in Strasbourg proceedings over which they have little effective control, and which they could do little to alter. Only collective action would bring about the changes sought. On the other hand, the doctrine of residual responsibility is designed to ensure that transfer of powers from national to international authorities does not result in the bypassing of human rights norms.

66. Above note 65 at para.6.2.

67. As the Commission explained in one of its early decisions, “if a State contracts treaty obligations and subsequently concludes another international agreement which disables it from performing its obligations under the first treaty it will be answerable for any resulting breach of its obligations under the earlier treaty”: see M & Co. v. FRG App. No.13258/87 (unsuccessful attack on acts of German Federal Justice Ministry which issued a writ of execution of a judgment of the European Court of Justice) citing to App. No.235/56 (1958) 2 Y.B. 256, 300. See also Heinz v. Contracting States also Parties to the European Patent Convention App. No.21090/92, (acts of the European Patent Office unsuccessfully challenged). See e.g. Clapham, A., “A Human Rights Policy for the European Community” (1990) 10 Y.E.L. 309, at pp.332–335Google Scholar, Harris, et al., op cit., supra n.29, pp.27–28, and J. P. Jacqué, “The Convention and the European Communities” in Macdonald, et al., op cit., supra n.30, pp.896–901.

68. M & Co. op cit., supra n.67, p.145.

69. (1999) 6 B.H.R.C. 499, para.67 (employment matters concerning European Space Agency).

70. Note that the Commission held that the Supreme Restitution Court which sat in Germany fell outside the scope of Art.1 on the ground that it was an international tribunal over which Germany had no legislative or supervisory powers: App No.2095/63 X v. Sweden, FRG & Other States (1965) Ybk VIII 272,282 (ECHR)and see also App No.235/56 X v. FRG (1958/9) Ybk II 256, p.3O4 (ECHR).

71. Ibid., p.145.

72. Delcourt v. Belgium (1970) 1 E.H.R.R. 355 (ECtHR) para.25.

73. Accordingly, a governmental inquiry, without any civil or criminal sanctioning powers (apart from powers to compel co-operation) does not fall within Art.6: Fayed v. UK (1994) 18 E.H.R.R. 393 (ECtHR), para.61. On the other hand, it has been held that an application to a Constitutional Court alleging a constitutional violation does involve a determination for the purposes of Art.6 to the extent that the outcome of such proceedings are decisive for an underlying trial related to the determination of civil rights and obligations or criminal charges: see e.g. Ruiz-Mateos v. Spain (1993) 16 E.H.R.R. 505 (ECtHR), para.59.

74. See Committee of Experts, The European Convention on Human Rights: Institution of Review Proceedings at the National Level to Facilitate Compliance with Strasbourg Decisions reproduced in (1992) 13 H.R.L.J. 71, pp.73–74. See also Polakiewicz, J. & Jacob-Foltzer, V., “The European Human Rights Convention in Domestic Law: The Impact of Strasbourg Case Law in States where Direct Effect is given to the Convention” (1991) 12 H.R.L.J. 65Google Scholar, passim. In relation to Switzerland, sec the Loi fédérale sur la procédure pénale Art.229(4) and the Loi fédérale sur le droit pénal administratif Art.89. In Austria, legislation was introduced to allow for the review of proceedings affected by the Court's decision in the Unterpertinger case.

75. Committee of Experts, op cit., supra n.62. p.76. In relation to Switzerland, see the Loi fédérale d'organisation judiciarie. Art.139a (inserted by the Loi fédérale of 4 Oct. 1991, Chap.1).

76. The Court of Human Rights has held that Art.6.1 is triggered by appeal hearings (Delcourt, op cit., supra n.72) and by proceedings before a constitutional court which are decisive for the outcome of the underlying trial (see cases cited op cit., supra n.73). On either of these lines of authority Art.6.1 must be regarded as being triggered in relation to proceedings before the Court of Human Rights in respect of the States referred to in this paragraph.

77. Decisions of the Inter-American Court of Human Rights are also binding: see Art.68(l) of the Inter-American Convention.

78. See e.g. Belilos v. Switzerland (1988) 10 E.H.R.R. 466 (ECtHR), paras.78 and 76 respectively. See also Frowein, J. A., Der Europäische Grundrechtsschutz und die Nationale Gerichtsbarkeit (Walter de Gruyter, 1983), p.24CrossRefGoogle Scholar and Velu, J., Les Effets Directs des Instruments Intemationaux en matère de Droits de l'Homme (Swinnen, 1981), p.141.Google Scholar

79. Ress, G., “The European Convention on Human Rights and States Parties: The Legal Effect of the Judgments of the European Court of Human Rights on the Internal Law and before Domestic Courts of the Contracting States”, in 1. **Maier, (Ed.), Protection of Human Rights in Europe: Limits and Effects (C. F. Müller Juristischer Verlag, 1982), pp.221–222.Google Scholar

80. Against this argument from practice, however, it can be countered that decisions of ombudsmen, mediators and so on are also often in practice decisive for the determination of entitlements, including civil rights and obligations as understood by the Convention Organs, yet this does not suffice to bring them within the ambit of Art.6.

81. FOR a review of the implementation of the Court decisions in states parties see Polakiewicz & Jacob-Foltzer, op cit, supra n.74.

82. See O'Flaherty, M. & Heffernan, L., International Covenant on Civil and Political Rights: International Human Rights Law in Ireland (Brehon Publishing, 1995), p.105Google Scholar, citing to Tomuschat, C., “Evolving Procedural Rules: The United Nations Human Rights Committee's First Two Years of Dealing with Individual Communications” (1980) 1 H.R.L.J. 249, p.255Google Scholar. See also Nowak, op cit., supra n.3, p.710 and Tangiora (PC) supra n.46.

83. Nowak, op cit, supra n.3 p.710. Lewis-Anthony, Sian, “Treaty-based Procedures for Making Human Rights Complaints Within the UN System”, in Hannum, H. (Ed.), Guide to International Human Rights Practice (2nd edn) (1992Google Scholar) takes the contrary view that in the majority of cases, states parties do not take heed of the views adopted by the HRC.

84. See generally Schmidt op cit., supra n.39. The measures adopted to give effect to the role of the Special Rapporteur are reproduced in Nowak, op cit, supra n.3, pp.881–882 (A/45/40, Vol.11, at p.205).

85. Moreover, in a number of jurisdictions the judicial authorities treat the HRC's views with considerable respect, in a manner suggesting that they regard the HRC as the authority on the interpretation of the Covenant. The Netherlands and New Zealand are examples.

86. See e.g. Davidson, op cit., supra n.56, at p.353; Higgins, R., “The Relationship between International and Regional Human Rights Norms and Domestic Law” [1992] Comm.L.B. 1268, at p.1270Google Scholar; Nowak, op cit, supra n.3, at p.vviv, and F. Pocar, “The Legal Value of the Human Rights Committee's Views” (1991–1992) 7 C.H.R.Y.B. 119. See also Tangiora (PC ) supra n.46 where the Privy Council appeased to incline to the view that the HRC does make definitive determinations on compatibility with the Covenant.

87. In Grant v. South-West Trains (C–249/96, 17 Feb. 1998) [1998] 1 C.M.L.R. 993, at para. 46, the European Court of Justice stated that the HRC “is not a judicial institution”. The majority of Court of Appeal in Tangiora (CA ) (Thomas J. agreed with the majority on other grounds and expressed no firm opinion on this point) held that the HRC did not have the attributes of a judicial body, though the Privy Council on appeal was much more circumspect, conceding that the HRC could be a judicial body: Tangiora (PC ) supra n.46. See also the report prepared by Professor Bayefsky, Anne for the 67th International Law Association Conference, Helsinki 1996 (London: ILA, 1996Google Scholar) 337ff which is quite critical of a number of aspects of the HRC's functioning in relation to its communications work, in particular calling for oral hearings, more detailed reasoning and so on. See also the report prepared by Professor Anne, Bayefsky for the 67th International Law Association Conference, Helsinki 1996 (London: ILA, 1996), 337Google Scholarel seq. which is quite critical of a number of aspects of the HRC's functioning in relation to its communications work, in particular calling for oral hearings, more detailed reasoning and so on.

88. See the arguments of defendant counsel in the High Court in Tangiora op cit., supra n.46, pp.281–282.

89. These reports detail (or at least are meant to detail) the state party's compliance with the Covenant and the development of human rights protection mechanisms. While there can be a certain level of confrontation involved in such hearings (facilitated by the comments of domestic or international NGOs on the state party's report) they lack the adversarial and issue-specific elements characteristic of judicial proceedings. Moreover, the comments made by the Committee on state party reports tend to be quite general in nature and lacking the attention to detail characteristic of judicial proceedings. In addition, the suggestions made by Committee members in reaction to state reports generally call for progressive change in domestic legislation and practice so as to ensure compliance with the Covenant. Moreover, they often tend to be uneven as between countries.

90. See the High Court judgment in Tangiora, op cit, supra n.46, p.282.

91. A collection of the opinions of various members of the HRC is gathered in McGoldrick, op cit., supra n.39, p.54. See too Opsahl, op cit., supra n.3, p.396.

92. See Higgins, R., “Ten Years on the United Nations Human Rights Committee: Some Thoughts upon Parting” [1996] E.H.R.L.R. 570, at p.570Google Scholar and Yearbook of the Human Rights Committee 1977/78, vol.1, UN Doc.CCPR/1, at p.20 (6th Meeting) para.73 respectively. See also Ghandhi, op cit, supra n.39, p.205.

93. Opsahl, op cit., supra n.3, pp.426–427. See also Schmidt, M., “Does the United Nations Human Rights Program Make a Difference?” (1997) 91 Proceedings A.S.I.L. 461, at pp.463Google Scholar and 464 referring to the HRC as a “quasi-judicial” international human rights organ.

94. Yearbook of the Human Rights Committee 1977/78, vol.1, at p.21, UN Doc.CCPR/l, (7th meeting) para.1.

95. Ghandhi, op cit., supra n.39, p.249. See also the same author's reference to the HRC's “quasi-judicial attitude” Ibid., p.205.

96. For example, the Supreme Court of Canada is required to give advisory opinions when requested to do so by the Governor-General of Canada. While formally these opinions are non-binding, practice is to follow them, and they are cited as precedents in the normal way. See Hogg, P., Constitutional Law of Canada, 3rd edn, (1992), chap.8. 6Google Scholar. The Privy Council, formally, does not render binding judgments merely tendering its advice to Her Majesty: is it therefore not a court?

97. See Lewis-Anthony, op cit., supra n.83, p.42.

98. It is clear that the Convention cannot apply directly to institutions which are not parties to the Convention. Thus, the EU institutions are not directly caught by the Convention: see e.g. App. No.8030/77 CFDT v. European Communities (1978) 13 D.&R. 231 (ECHR), App. No.13539/88 D. v. European Communities (1989) (ECHR). and M. &. Co., op cit., supra n.67, p.144.

99. See e.g. A. Bayefeky, “Remarks” (1997) Proceedings A.S.I.L. 466, p.469, n.13 (“widespread ignorance”) McGoldrick, op cit., supra n.39, p.500 and Opsahl, op cit., supra n.3, p.437. In the New Zealand context, sec e.g. J. Elkind, “The Optional Protocol and the Covenant on Civil and Political Rights” [1991] N.Z.L.J. 409.

100. Such a perspective does not mean that lawyers are greedy, but they cannot run a practice without income. In Tardu, op cit., supra n.1, Pt.III, s.X, entitled “Access of the Individual to the International Petition System” (issued in May 1979) at p.27 it is recognised that: The truth is that the only effective representation is that afforded by a lawyer. Few practising attorneys, however, are attracted towards human rights lawyering, and still fewer towards acting before international bodies. These occupations cannot exactly be called lucrative pursuits: victims of human rights violations are either bom poor or have become so through confiscation of property, fines and other forms of persecution. The political risk involved in representing them is another deterrent. The establishment of an adequate system of legal aid would contribute to the solution of these problems. Ultimately, this might best be achieved through a legal aid agency of the international community, to be funded through voluntary contributions from governments, national bar associations and other groups concerned.

101. I note that Davidson, op cit., supra n.51, p.389 suggests that the informal nature of the HRC process indicates that “it was not envisaged that the process would have been colonised by lawyers”. Legal aid would result in the capture of the process by the legal profession. Davidson is realistic enough to recognise however that legal aid or not “there is a certain inevitability” of capture “where law and legal interpretation are concerned”.

102. See e.g. Meron, op cit., supra n.3, at p.49.

103. Schachter, O., International Law in Theory and Practice (1991) p.330.Google Scholar

104. As regards the practical challenges which face most of the United Nations-related human rights treaty monitoring bodies see the document. Effective Functioning of Bodies Established Pursuant to United Nations Human Rights Instruments E/CN.4/1997/74 (27 Mar. 1997) prepared for the Commission on Human Rights' 53rd session.

105. Lack of resources for the HRC is discussed by Opsahl, op cit., supra n.3, pp.434–435 and 440–441. See also Bossuyt, op cit., supra n.5, p.51 who notes that, “Another main weakness of the international human rights system is lack of funding. No system for the protection of human rights can function without a minimum of resources.”

106. Ghandhi, op cit., supra n.39, p.248 noted that “a very heavy and rapidly increasing workload that is being thrust upon the Committee”.

107. O'Flaherty & Hefferman, op cit., supra n.82, p.111 note the “supplementary role” of the petition procedure to state reports in the Covenant system. Bayefsky, op cit., supra n.87, pp.346 and 355 has called upon the HRC to spend a greater amount of time on individual communications in preference to its state report work.

108. Certainly, Opsahl, op cit., supra n.3, p.440, has argued that the HRC should not devote a huge amount of time to its communications jurisdiction; it “should not be more than a secondary aim”. It would be better, in his view, for the HRC to concentrate on supervisory and co-ordination roles, leaving complaints to regional procedures such as the European Convention and Inter-American Convention systems. They offer “several advantages in the areas of logistics, local trust, and homogeneity”. See also Meron, op cit., supra n.3, p.123 who describes the HRC's state report work as its central function, because it is the procedure which is binding on all states parties to the Covenant.