Sir Humphrey Appleby II on ECHR Single-judge decisions and the "epistemological problems of sufficient magnitude" and "the fourth of the epithets"

Judge Potocki unperturbed by
"epistemological problems laid
upon the semantic resources"

Sir Humphrey conveys his reservations about the unfortunate Single-judge decision in Case 51482/18 to Judge Potocki:

"Unfortunately, although the answer decision was indeed clear, simple and straightforward, there is some difficulty in justifiably assigning to it Single-judge decisions the fourth of the epithets you applied to the statement inasmuch as the precise correlation between the information you communicated and the facts insofar as they can be determined and demonstrated is such as to cause epistemological problems of sufficient magnitude as to lay upon the logical and semantic resources of the English language a heavier burden than they can reasonably be expected to bear."

"I wonder if there's anything that might persuade you to consider recasting that sentence that Single-judge decision and transferring the emphasis from the specific instance to the abstract concept without in any way, impairing the conceptual integrity of the theme Court."

Yes Minister (1980) s01e02 Episode

"Well, it was a conversation to the effect that in view of the somewhat nebulous and inexplicit nature of your the ECHR remit Single-judge decisions and the arguably marginal and peripheral nature of your influence on the central deliberations and decisions within the political judicial process, that there could be a case for restructuring their action priorities in such a way as to eliminate your the (decision's) liquidation from their immediate agenda.

And to that end, I recommend that we set up an interdepartmental committee with fairly broad terms of reference so that at the end of the day we'll be in the position to think through the various implications (of Single-judge decisions) and arrive at a decision based on long-term considerations (and margins of appreciation) rather than rush prematurely into precipitate and possibly ill-conceived action which might well have unforeseen repercussions."

"I have been told by lawyers familiar with the ECHR that they have seen applications that did appear to present serious issues but which were, nevertheless, rejected as "manifestly unfounded"."

Here is an excerpt of "The European Court of Human Rights: What It Is, How It Works, and Its Future" by McKaskle, Paul L. (2005).

First, in the United States a judge and the law clerks hired by him or her develop an individual relationship that usually reflects the priorities (and even the biases) of the judge. In the Strasbourg Court, however, the Registrar's staff is answerable to the Registrar, and not to individual judges. The Registrar's staff prepares the initial analysis of all cases, is present in Chamber deliberations, and probably prepares most opinions of the Court. What effect this relationship has on the jurisprudence of the Strasbourg Court is impossible for an outsider to know. For some judges the effect may well be minimal or non-existent. But it is possible that the staff views might have an effect on new judges or judges not entirely comfortable with the English or French language. 168 Extensive use of a central legal staff may also result in greater bureaucratic or institutional decision-making.

Second, in part, the legal staff (serving as the equivalent of an American law clerk) does carry out duties typical of the position, such as an analysis of each application filed with the Court as to whether it should be admissible because the allegations suggest that there has been a violation of the Convention. But the duties go further. Pursuant to Rule 22 of the Rules of Court, the Registrar or his designee is present during deliberations of a Committee, Chamber, or Grand Chamber. (171) The rules provide that "only judges shall take part in the deliberations,"' but it is not hard to imagine that many questions may well be put to the Registrar or other legal staff present, and thus the responses of staff constitute a de facto participation.

171. ECHR Rules, supranote 40, R. 22. Rule 22 also provides that "other officials of the Registry and interpreters whose assistance is deemed necessary" may also be present during deliberations. Id. In the United States Supreme Court, law clerks never participate in conferences, and such a practice is extremely rare in the California Supreme Court.

...

The Strasbourg Court, on the other hand, is presumably obligated to accept and decide any case presented to it that credibly alleges a violation of the Convention. This has led to an explosion in the number of cases considered by the Court. Further, this explosion in case numbers is exacerbated by the inability of the Court to decide cases on a summary basis and by the lack of a mechanism to remand to a national court for reconsideration based on Strasbourg court prior decisions.

Nevertheless, the use of the word "presumably" in the previous paragraph is done advisedly. Though there is nothing in the Convention or the Rules of the Court granting discretion to ignore what, prima facie, appear to be credible claims, some observers of the Court suspect that a substantial amount of discretion is exercised in rejecting cases. The ratio between the number of applications for relief filed with the Court and the number of cases actually taken gives some credence to this suspicion. For example, in 2004 there were decisions on admissibility on over 21,000 applications, but only 830 cases were deemed worthy of further consideration. While undoubtedly a fair number of applications are unfounded, it seems surprising that close to ninety-seven percent of them are unable to even allege a prima facie credible violation. (253) But without further information, questions about the Court's exercise of discretion in choosing which cases to hear are merely a matter of conjecture.

253. The vast majority of applications filed are rejected as being "manifestly ill-founded" (the term used when a case is rejected by a Committee). Convention, supranote 12, art. 35(3); Wildhaber, Oslo Speech, supranote 154, at 6 (noting that manifestly inadmissible cases constitute ninety percent of applications). It may be that some of the applications are made by lay individuals who have no knowledge of the scope of the Court's jurisdiction, but it would seem probable that many of the applications are made with the assistance of a lawyer who is acquainted with the relevant provisions of the Convention and would not file an application that had little or no chance of succeeding. So, it is at least surprising that the ratio of summary rejection is so high. Further, I have been told by lawyers familiar with the Court that they have seen applications that did appear to present serious issues but which were, nevertheless, rejected as "manifestly unfounded." While rejected applications are, in theory, available for public inspection, the procedure to see a file is tedious. A file has to be specifically requested in writing, and a time must be set up to examine it under the supervision of a member of the Registrar's staff and general requests for multiple files cannot be made. See European Court of Human Rights, Press, http:// www.echr.coe.int/ (follow "Press" hyperlink; then follow "Rules on access to case files" hyperlink). Further, applications may be written in any one of the thirty-seven languages used in the member states, and if rejected at an early stage, are not translated. WORKING METHODS REPORT, supra note 97, at 11. So, as a practical matter it is impossible to determine whether this occurs regularly or are isolated events-or are simply mistakes of the observers as to whether the rejected applications are, in fact, meritorious. Thus, at best it is only a suspicion that there currently exists at least some exercise of discretion in deciding whether the Court will consider a case. See also OVEY & WHITE, supra note 25, at 404 (expressing concern that summary rejection of applications by Committees without explanation will "no longer build up an easily consulted body of decisions clarifying the grounds of inadmissibility").

352. In terms of the present caseload, it is possible that the Court is already exercising discretion in deciding whether to take cases which seem to present issues of "minor or secondary importance." The vast majority of applications filed are rejected as being " man- ifestly ill-founded'" (the term used when a case is rejected by a Committee). Id It may be that many of the applications are made by individuals who have no knowledge of the scope of the Court's jurisdiction, but it would seem probable that many of the applications are made with the assistance of a lawyer who is acquainted with the relevant provisions of the Convention and would be unlikely to file an application that had no chance of succeeding. So, it is at least surprising that the ratio of summary rejection is so high. Further, I have been told by lawyers familiar with the Court that they have seen applications that did ap- pear to present serious issues but which were, nevertheless, rejected as "manifestly ill- founded." Since rejected applications are not easily accessible for public inspection, it is impossible to determine whether this is a systematic occurrence or are isolated events-or are simply mistakes of the observers as to whether the rejected applications are, in fact, meritorious. Thus, at best there is only a suspicion that there is at least some exercise of discretion in deciding whether the Court will consider a case.

The problem is, Europe is a hodgepodge of very different participating countries that "do not share a common source of law and have major cultural differences. A substantial number are, at best, emerging democracies". Go figure!

B. The Caseload Problem May Be Far Worse than Officially Recognized 

 ... One cannot overemphasize the potential of future cases resulting from the admission of the newer member states as a major factor in the continuing increases in the caseload of the Court. At present the number of judgments against the recently admitted states is not great, (372) but this number may escalate. Most of the member states are, at best, emerging democracies and several have a recent history of violence and repression. (373)


Here is a further interesting read in the German Law Journal Vol. 19 No. 07

The Motivations of Individual Judges and How They Act as a Group
By Shai Dothan

D. People Who Are Not Judges

I. Legal Staff

It is easy to adopt the misleading view that judges are the only people who really matter in international courts. After all, judges are the ones who sign judgments, and therefore it is natural to assume that it is only judges who make important policy decisions. But this imaginary view is probably mistaken with regards to many international courts.

Scholars have noted that the ECHR has a very influential legal staff, partly because judges who are not proficient in English and French, the two official languages of the court, must rely very closely on staff members.58 In many international courts, especially criminal courts, the staff can number hundreds of experienced professionals.59 It is naïve to think that these experts do not affect judicial policy.

To the extent one believes the legal staff is diverse and unbiased, the substantial impact of this staff may be a blessing. It could mitigate the influence that biased judges have on the practices of the court. But if the legal staff is hierarchically controlled, the people on the top of the pyramid may form a danger of an entirely different magnitude. In the ECHR, for example, all the staff members answer directly to the Registrar. The Registrar, in turn, is under the authority of the court's President. If either the Registrar or the President are biased, this bias could echo throughout the entire legal staff.

If the staff or the people controlling it are biased, they may direct the entire court to suit their preferences. This suggests that empirical research should not stop at investigating the selection of international judges. It should also study the selection and promotion of other legal staff within international courts, and it should put special emphasis on the positions in the court that control the legal staff.

II. Lawyers and NGOs as Repeat Players

Courts do not work in isolation. They constantly interact with lawyers who bring cases to the court, argue before it, and significantly affect the content of its decisions. Research has shown that many of the lawyers who appear before international courts are "repeat players"—they litigate before the same court numerous times.60 These repeat players gain legal expertise and connections that give them a unique influence on the policy made by the court. Just like with the legal staff on the court, this influence may either mitigate or exacerbate the biases of the judges depending on the nature of the legal community surrounding the court.

And read this:

Importantly for the purposes of this paper, international courts are also advised to treat different states differently. States that enjoy a high-reputation for compliance with international law pose a greater threat to the court. Their non-compliance or even their criticism can significantly harm the court's reputation. To counter this threat, international courts treat high-reputation states more leniently than they do low-reputation states. They will reserve their most demanding judgments—especially those that are based on doctrinal novelties—to states that have a low-reputation.

Obviously, this form of behavior is a threat to judicial objectivity. To the extent that individual judges are pressured to serve the court's long-term interest in this way, it may make them far more biased than any personal incentive discussed above. Judges may use ingenious ways to profess evenhandedness even as they pursue the dangerous course that promises their court greater power in the future.

Finally the

F. Conclusion

The reader clearly realized by this point that this paper offers more questions than answers. The power of Judicial Behavior studies—at least for the purpose of this paper—is that it allows scholars of international courts to ask the right questions.

The finding that international judges are biased in favor of their home countries is incredibly robust.
...

Sir Humphrey Appleby II on ECHR Single-judge decisions and the "epistemological problems of sufficient magnitude" and "the fourth of the epithets"

In addition, confiscation of smartphone without court order no concern for "Euro clowns" at ECHR (Case 51482/18)

Great headline, right? Gathered it from Erik Voeten (more below):

"This scrutiny is sometimes targeted at individual judges. For example, the popular British tabloid The Sun individually singled out the “Euro clowns” it held responsible for the decision to stay the extradition of radical Muslim cleric Abu Hamza to the United States.9 (Hamza claimed he faced the prospect of torture in a U.S. prison.)"

Here is a measured post about that SUN headline “Euro Clowns Let Hamza off the Hook,” August 7, 2008. Still, I like the moniker 'Euro Clowns' as the EU totally gets on my balls. Having outed myself again, here is the

Relevant excerpt from our complaint submitted to the ECHR:

Subject Art 8 ECHR

A confiscation of the smartphone was not mentioned in the Judicial Decision of October 8, 2015. Nevertheless, it was confiscated by the police and it can also be assumed, the same was planned with the smartphone of his daughter, as a policewoman was present. Despite this unlawfulness, Judge Birkhofer-Hoffmann showed a keen interest in the results of the evaluation of phone data. For Hartz 4 recipients no rights seem to apply.

In a decision of February 4, 2005 - 2 BvR 308/04, the Federal Constitutional Court stated in paragraph 23 to 25 clear limits for a confiscation. On Nov. 22, 2016, the applicant filed a criminal complaint against police officer Carstens at the Munich Public Prosecutor's Office. Furthermore, he sent two Pdf to the police chief of Munich, which was allegedly handed to the prosecutor by the police according to their letter of April 26, 2017. The complainant has no correspondence with the file # 120 Js 119571/17, as was claimed by senior prosecutor Tilmann in the letter of June 1,2017 and again confirmed on Oct. 19, 2017. Everything was swept under the carpet.

To give that single-judge decision (Case 51482/18) the right twist we at the ECHR simply

"shall not keep the file in its archives for more than one year from the date of this decision."

There is an interesting paragraph in "The European Court of Human Rights: What It Is, How It Works, and Its Future" by McKaskle, Paul L. (2005) that explains the workings inside the ECHR and the national component. The pivot is the Registrar and his/her staff!

In the Strasbourg Court, however, the Registrar's staff is answerable to the Registrar, and not to individual judges. The Registrar's staff prepares the initial analysis of all cases, is present in Chamber deliberations, and probably prepares most opinions of the Court. What effect this relationship has on the jurisprudence of the Strasbourg Court is impossible for an outsider to know. For some judges the effect may well be minimal or non-existent. But it is possible that the staff views might have an effect on new judges or judges not entirely comfortable with the English or French language. 168 Extensive use of a central legal staff may also result in greater bureaucratic or institutional decision-making.

Second, in part, the legal staff (serving as the equivalent of an American law clerk) does carry out duties typical of the position, such as an analysis of each application filed with the Court as to whether it should be admissible because the allegations suggest that there has been a violation of the Convention. But the duties go further. Pursuant to Rule 22 of the Rules of Court, the Registrar or his designee is present during deliberations of a Committee, Chamber, or Grand Chamber. (171) The rules provide that "only judges shall take part in the deliberations,"' but it is not hard to imagine that many questions may well be put to the Registrar or other legal staff present, and thus the responses of staff constitute a de facto participation.

171. ECHR Rules, supranote 40, R. 22. Rule 22 also provides that "other officials of the Registry and interpreters whose assistance is deemed necessary" may also be present during deliberations. Id. In the United States Supreme Court, law clerks never participate in conferences, and such a practice is extremely rare in the California Supreme Court.

Even more embarrassing is this part in a footnote:

 I have been told by lawyers familiar with the Court that they have seen applications that did ap- pear to present serious issues but which were, nevertheless, rejected as "manifestly ill- founded." Since rejected applications are not easily accessible for public inspection, it is impossible to determine whether this is a systematic occurrence or are isolated events-or are simply mistakes of the observers as to whether the rejected applications are, in fact, meritorious. 

The ECHR employs double standards in the form of leniency towards "high-reputation states", or make that EU paymasters.

Importantly for the purposes of this paper, international courts are also advised to treat different states differently. States that enjoy a high-reputation for compliance with international law pose a greater threat to the court. Their non-compliance or even their criticism can significantly harm the court's reputation. To counter this threat, international courts treat high-reputation states more leniently than they do low-reputation states. They will reserve their most demanding judgments—especially those that are based on doctrinal novelties—to states that have a low-reputation.

Here is ERIK VOETEN, Georgetown University, with "The Impartiality of International Judges: Evidence from the European Court of Human Rights"

"About one-third of all applications are dismissed for procedural reasons by the registry. Another 60% of applications are declared inadmissible by unanimous decision of a committee of three judges, most frequently because the applicant had not exhausted domestic judicial remedies. Admissibility decisions are based on the recommendation of a rapporteur, which is usually the national judge of the respondent government, granting that judge considerable leverage over national cases."

The myth of the independent judge.

"Cultural factors could also be responsible for the apparent national bias of international judges. For example, Hensley (1968) attributes national bias on the ICJ to “the more subtle influence of culturally inculcated values” (p. 568), although he does not specify a precise mechanism through which culture has such an effect. One plausible mechanism is that judges who are accustomed to political interference domestically are more likely to defer to the position of their government when serving on an international court."

And let's not forget the fucking stupid criminal civil servant Jürgen Sonneck alias "C. Paucher". Covered by Munich police and the rotten Munich Court. Roland Freisler would admire them blokes.

Hi, my name is Jürgen Sonneck.
I do not always use a false name but when I do, I make sure
I come come across as totally fucking bonkers.

ECHR Single-judge Decisions always lead to an Inadmissibility decision???

Computer of migrant daughter deliberately damaged by the rotten Munich Court. That is of no concern to the ECHR. Just stop blogging critical stuff about German Jobcenters and you are fine (Case 51482/18)

Oh the ECHR and its 'Margin of Appreciation'

Excerpt from complaint:

"The computer of his daughter was returned in a deliberately (!) damaged condition (clear scratches in the lower left quarter of the screen and a broken trackpad) by the Munich Court. Since it was unusable, the complainant sent it to the Federal Ministry f. Work and Social Affairs BMAS in January 2017. The MacBook was confiscated even though the daughter needed it for school. The then attorney of the complainant in a trial before the Munich court on May 6, 2015 which resulted in the ECHR Case 35285/16 warned in the presence of the daughter of the complainant literally that if the blog should be continued, "they will destroy you" (in German "machen die Sie fertig"). He was referring to the Munich Court."

A recent post on an upcoming case on the blog "Verfassungsblog.de" concluded:

"The upcoming decision will show if the ECtHR still deserves its titles as ‘guarantor’ of the Convention and ‘island of hope in stormy times’ or whether this island is drowning under the pressure of some of its Member States."

Indeed and in this particular case, as one of the main funding states Germany has a right that guarantors of its mind-boggling export surplus such as the Jobcenters are not to be criticized. And if so, within our flexible legal bounds it will be stopped. Greetings from Strasbourg!

"Due to its vague nature, opposing the universal nature of human rights, the margin of appreciation doctrine has been subject to extensive criticism, including the denial of its legitimacy while other authors underline that it is a necessary and legitimate principle of interpretation of the Convention."

See: The Principle of Subsidiarity and the Margin of Appreciation Doctrine in the European Court of Human Rights’ Post-2011 Jurisprudence

The Margin of Appreciation; its limits and inconsistencies.

"Deference

The ECtHR gives deference to National courts because there is a possibility that national highest courts have indicated that they will not always comply with the decision of the ECtHR. [38] Deference is used to avoid conflict between national courts and states and is a symbol of unity. [39] By giving deference the ECtHR gives respect to national constitutional traditions and preventing situations of real conflict. Where the court solely relies on correspondence given to it by states’, accurate investigations and findings are prevented threatening its unity and compliance [40] and this is what the court is trying to protect."

He concludes:

"This shows individual state interests are put before those of the court."

In addition, confiscation of smartphone without court order no concern for "Euro clowns” at ECHR (Case 51482/18)

ECHR covers Munich criminal civil servant Jürgen Sonneck operating under false name "C. Paucher" (Case 51482/18)

Criminal, Useful Idiot cum civil servant Jürgen Sonneck

Here is the Useful Idiot cum civil servant Jürgen Sonneck pictured.

Part of the blame has to be levelled at the rotten Munich Court. With their unrelenting refusal to grant any access to court files over years, Jürgen Sonneck felt absolutely cock sure he would stay under the radar undetected. That's why he did not deem it necessary to move his fucking ass. Like driving to a café at the south shore of Lake Starnberg or take a train to Lengries or Tegernsee. No, Jürgen chose his home. In the evening. After work. Everything was planned six months before. What could possibly go wrong?

Once I managed to blow his cover (via IP address, damning conspicuous circumstantial evidence) I went on full attack mode against J.S. with a barrage of PDFs to the President of Munich police and various Federal Government Ministries in Berlin in June/July 2017 (here, here, here, here, here and here - all in German). Oh, in typical German fashion no one responded.

Mid July 2017 the Useful Idiot Jürgen Sonneck was hastily shifted under cover of the night from his former post as deputy CEO at the Jobcenter Munich to the Department for Education and Sport Munich.

. . . . . . . . .

Excerpt from complaint: "At around 8:45 am on October 28, 2015, two plainclothes policemen and a policewoman appeared and demanded admission on presentation of a Judgmental Decree (Annex 3) dated Oct. 8, 2015, which was not signed by the judge. A male police officer immediately rushed to the door to the complainant's daughter's room and threw it open without knocking. The daughter of the complainant, however, was already in school. During the trial, the complainant was physically searched and it was obvious that the female police officer was supposed to body-search his daughter. The apartment was photographed and also the house from the outside. All IT equipment including router was confiscated, because a blogger had to be rendered incapable of any access to the Internet. This was the second computer confiscation after 2013 (then for 25 months without financial compensation!). This as well after a criminal complaint by the Munich labor office. Although the confiscation of the smartphone was not mentioned in the Judgmental Decree, this too was confiscated (Annex 5). The same was undoubtedly planned with his daughter's smartphone."

. . . . . . . . .

None of this interests the ECHR which had already turned heads with its ridiculous blasphemy decision just months earlier. As one commenter on REASON wrote:

"But seriously, the ECtHR is not a national supreme/constitutional court, and so on some issues they play the "margin of appreciation" card rather than getting stuck in thorny political issues."

Computer of migrant daughter deliberately damaged by the rotten Munich Court. That is of no concern to the ECHR. Just stop blogging critical stuff about German Jobcenters and you are fine (Case 51482/18)

ECHR declares, Marissa Mayer meme contravenes German Criminal Code Section 86a "Use of Symbols of Nazi Organizations" (Case 51482/18)

The law perverted! The law—and, in its wake, 
all the collective forces of the nation—the law, 
I say, not only diverted from its proper direction, 
but made to pursue one entirely contrary!

Frédéric Bastiat 

Hear ye, hear ye, hear ye. The European Court of Human Rights sees this Marissa Mayer meme NOT covered by Article 10 ECHR.

ECHR does not like the Marissa Mayer meme

And since we at the ECHR do not want to deal with such crap from low-life bloggers we will shred your shit in a year's time. Capisce! Because that's how Single-Judge-Decisions work.

"The Court shall not keep the file in its archives for more than one year from the date of this decision."

Meanwhile German prosecutors have their very own views.

So coincidentally and related the Hamburg prosecutor declared this Hitler image in BENTO (an online youth magazine of DER SPIEGEL) as NOT contravening Criminal Code Section 86a (File #: 7101 Js 742/17).

This Hitler image is fine because it is from DER SPIEGEL
which is the journalistic gold standard.

Likewise in rotten Munich Court. Munich prosecutor Tilmann finds this Merkel-Nazi image in the Munich fake news gazette 'MERKUR' A-OK.

Merkel-Nazi image works well with Munich Court. Double standards anyone?

Bonus trivia: The European Court of Justice has for the umpteenth time to decide about that piece of cloth worn on a head, aka head scarf. It's been called on from, where else, Germany. Good-golly.

ECHR covers Munich criminal civil servant Jürgen Sonneck operating under false name "C. Paucher" (Case 51482/18)