Procedual Process

While the material handling of the complaint goes on in front of all courts of human rights relatively uniformly, a noteworthy procedural distinction can be found in the scope of the admissibility requirements which on the one hand serve as a filter for the respective regional court, on the other hand however depending on the legal set-up also complicate the claim to legal help and thus protect the treaty states from legal examination of their acts of state. Refered of here is the admissibility requirement of the obligatory completion of a commission procedure prior to a court procedure.

Before the IACtHR, which anyway can only be accessed by the IACHR and the treaty states, the completion of a preliminary proceeding through the IACHR is an inalienable admission criteria, even if the states involved waive this procedure. Therefore, the complaint without prior commisional procedure will be dismissed as inadmissible. The same is true for the former regulations of the ECHR: Art. 47 ECHR (current version) constituted the completion of the commission process as an indispensable requirement for calling up the ECtHR.

The case is different under the new Banjul system. State claimants have, in contrast to the ACHR and the ECHR (current versions), a direct right to file a complaint to the Court without previous invocation of the AfrCHPR. The protocol however does not leave it with this – in view of the state complaints which are hardly to be expected almost emerging negligence – simplified process. Also individual claimants profit from this functional independence of the two protective procedures. In order to initiate a complaint before the AfrCtHPR as an individual, the appeal to the AfrCHPR is necessary as long as the involved state party has not sumitted it declaration of acceptance according to Art. 34 VI and thus opened the competence ratione personae of the AfrCtHPR for individuals. The completion of this commission process, however, is not listed in the protocol as compulsory and therefore dispensable. That has the advantage that the AfrCHRP can forward a procedure at its own discretion at any time to the AfrCtHRP and thus if necessary can function quasi as an acceptance office for the AfrCtHRP, which merely catalyses the court procedure. Laying a claim before the AfrCHRP is a moot issue for individuals as soon as they have the locus standi before the Court through corresponding declarations of acceptance, since in the protocol also no commissionary preliminary process is fixed as a requirement for admission for an individual complaint as well as for state complaints.

Also this modification of the international standard, the renouncement of a prior commission proceeding thus of an access restriction which is time and cost intensive clarifies the progressiveness of the system change in the African human rights protection.

3. Procedural termination

In the procedural termination phase, the cardinal question arises when terminating by verdict. It concerns both, the content and he method of implementation, in order to ensure that the judgement is being given effect.

The competence to assess a violation of the convention is common to all human rights Courts.726

It is then the spirit of a judiciary control function and a condition precedent for more comprehensive content of the rulings. Besides this declaratory part, all verdcted states can also have obligations to perform imposed upon them that are aimed at the compensation of the complainant for the injustice suffered.727

For judgments passed in action for performance, however, the ECtHR is limited to cases in which the “internal law of the High Contracting Party concerned allows only partial reparation to be made”.728

This limitation affects neither the IACtHR nor the AfrCtHPR. The legal options of ECtHR end with this declaratory ruling and judgement passed in action for performance. The IACtHR, on the other hand, is still entitled to arrange by ruling “that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied”.729

Thus the IACtHR can, beyond the recognition of simple monetary compensation, also arrange the concrete remedy of consequences by the state opposing the claim. The arrangement competence of the AfrCtHPR, on the other hand, exceeds not only that of the ECtHR, but also of the IACtHR. It is under obligation “[to] make appropriate orders to remedy the violation [...]”.730

Thus, the AfrCtHPR is not limited to the aspect of remedy of the consequence as is the IACtHR,731

but rather can issue orders that are aimed at correction of the violation of rights as such. Thus the AfrCtHPR is entitled to largely dictate the domestic implementation of the adjudicated

726

Art. 63 I ACHR; Art. 41 ECHR; Art. 50 ECHR (current version); Art. 27 I. 727

Art. 63 I ACHR; Art. 41 ECHR; Art. 50 ECHR (current version); Art. 27 I. 728

Art. 41 ECHR; Art. 50 ECHR (current version). 729

Art. 63 I ACHR. 730

Art. 27 I. 731

In legal practice, however, the IACtHR exceeds this limitation and, among other things, organizes implementation measures that go beyond pure remedy of consequences. In the case of Alochoetoe vs. Suriname (Series C No. 15), for example, IACtHR has, in addition to the promise of pecuniary compensation, ruled that a school and a hospital be established in order to ensure that families of victims killed by Governmental troops will continue to be provided for in future. It also ordered Suriname to establish a foundation for the compensation amount to ensure the money is used usefully for the families of the victims and distributed as needed.

obligations. Also, in this respect, the AfrCtHPR is superior in competence to its two regional sister institutions.

The competence to pronounce a judgement, however, only describes a partial aspect of the power of a judiciary organ. Equally essential are the mechanisms that ensure that the rulings are actually carried out. The legal force of the rulings732

and the obligations of the concerned member states to carry them out733

, as conventionally anchored in all systems, are not sufficient in light of the international enforcement deficit. All conventions therefore have provisions made for implementation controls, but these appear to be arranged differently: the IACtHR signs with sole responsibility for the supervision of the ruling enforcement. It is bound and at the same time limited to inform the OAS of the cases in which a judged member state has not met its obligation of enforcement in its annual reports from the general assembly.734

The supervision of the ruling of the ECtHR, in contrast, takes place on the political level by the Minister Committee.735

In contrast to the regulations of the ACHR, there is no provision for an individual follow-up system for the ECtHR.

For the rulings of the AfrCtHPR, both approaches are combined: the Minister Council of the AU (EMC) is given the task according to Art. 29 II to ensure the ruling is enforced by the convicted contractual state. At the same time, the AfrCtHPR is obliged to present a report to the annual general assembly of the AU, which must give information as to whether a convicted state has not met its obligations of iplemenation. This is where the special nature of the African system lies. The enforcement of the ruling is not only supervised by a political instance; the Court itself is substantially involved in the enforcement control. This supervision mechanism by the ECM on the one hand and the Court on the other should make it significantly difficult for the ECM to allow breeches of contract to go unmentioned in favour of diplomatic considerations or not be pursued to the full extent. In its supervision, the ECM must constantly expect the Court to submit a different assessment of the state of implementation to the general assembly. The supervision control by the Court should therefore also have an objectifying effect on the work of the ECM and make its supervision more effective if it does not want to see it subject to the reproach of the AfrCtHPR that it is not fulfilling its supervisory duty. Inasmuch, the AfrCtHPR does not only supervise the actual implementation by the verdicted member states, but also the supervisory function of the

732

Art. 44 ECHR; Art. 52 ECHR (current version); Art. 67 ECHR; Art. 28 II. 733

Art. 68 I ACHR; Art. 46 I ECHR; Art. 53 ECHR (current version).; Art. 29. 734

Art. 65 ACHR. 735

ECM. This interlacing of the protection systems sounds convincing at least “on paper”, and is certainly advantageous in comparison to the more restrictive methods of ruling supervision of the IACtHR and the ECtHR. One may hope that even convicted contractual states can be convinced of this, yet it appears in no way assured in light of the so far widespread resistance to implementation relating to recommendations from the commission.