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The Evidentiary System of the European Court of Human Rights in Critical Perspective

In: European Convention on Human Rights Law Review, The
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Marie-Bénédicte Dembour Professor of Law and Anthropology and principal investigator of the ‘ dissect: Evidence in International Human Rights Adjudication’ Horizon 2020 Research Project ( erc-AdG-2018-834044), Human Rights Centre, Ghent University, Ghent, Belgium

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The way evidence works at the European Court of Human Rights (ECtHR, Strasbourg Court, or Court) is understudied.1 This is in line with academic lawyers’ relative disinterest in evidentiary matters (except in the criminal sphere). Such a neglect is both unwarranted and regrettable. Getting the facts of the case ‘right’ is an essential task for any court, including the ECtHR. Facts concern the where, when, what, and how of the material incidents which underly legal complaints. If judges wrongly consider crucial facts non-established, this may have tremendous implications, including a ‘wrong’ judgment – wrong due to being inappropriate in the (real but unappreciated) circumstances of the case. The opposite is also true: if a court wrongly considers some facts established which are not true, this too can result in an inapposite judgment.2

At Strasbourg, evidence can be expected to play a crucial role whenever the ECtHR accepts, for whatever reason, that the full facts of a case have not been (properly) established by the domestic courts. This includes cases successfully lodged without having first been brought before the domestic courts (thus, with the admissibility condition of the exhaustion of national remedies waived by the Court), as well as cases in which the domestic assessment of the facts is explicitly or implicitly recognised by the Court to have been absent or insufficient. Even though these types of cases constitute but a fraction of the Strasbourg case law, given the latter’s volume, they are in practice relatively common. What is more, they often concern allegations of serious violations of human rights, and thus tend to be fiercely disputed by the respondent state. Trying to understand how the Court approaches evidentiary questions and reflecting on how well (or not so well) it does this, is therefore crucial.

At its most basic, the question with which this Special Issue is concerned can be phrased as follows: when does the Court consider facts proven? In other words, when is evidence ‘good enough’ or ‘sufficient’ in the eyes of the Court? This question suffers no simple answer. In part, this is because it involves at least four sub-questions: (1) who needs to prove what, (2) through which means, (3) assessed in which way, and (4) to which level of certainty. This series of questions corresponds to staple issues of evidence law, respectively related to (1) the burden of proof, (2) the admissibility of evidence, (3) the assessment of evidence, and (4) the standard of proof. A fifth issue, about ‘the permissible scope of evidence’, deserves in my view to be added to this classical set; it goes to what can, but also what cannot, be established. The Court’s basic approach to each of these fundamental issues is introduced below (with these brief words unable to do justice to their complexity, however).

As for the burden of proof, it can be asserted that the burden of producing evidence is envisioned at Strasbourg to be shared between all actors involved in a particular case (including potentially the Court itself).3 By contrast, the burden of having to persuade the Court of the validity of one’s allegations – a burden whose consequence is that the party who fails to satisfactorily discharge it, loses the case – normally rests with the applicant.4 The latter approach should not be assumed to be obvious: it has not been adopted in the same way by the other two world’s human rights regional courts.5 Also, the Strasbourg Court itself has come to recognise exceptions to it, and to accept that the burden of proof is to be shifted onto the respondent state in some circumstances. Despite important jurisprudential evolutions in this respect, the Court nonetheless remains reluctant to reverse the burden of proof, even in circumstances where one would have thought its shifting to be amply called for.6 The Court’s reticence is a feature which each contributor to this Special Issue identifies in relation to the Strasbourg case law they examine, respectively related to torture (Ireland v United Kingdom),7 racial discrimination, the undemocratic silencing of political opponents, and pushbacks of irregular migrants.

Turning now to the admissibility of evidence, this issue is generally assumed to be straightforward at Strasbourg: the Court is said to consider any evidence which is before it, whatever its origin and form.8 The simplicity of this statement belies a more complicated reality, however, such, for example, that the applicant’s original submissions are limited to filling the rather brief application form provided by the Court on its website, to which can be added a maximum of 20 pages.9 This limitation at the onset of the proceedings works to the disadvantage of the applicant, whose case may be declared manifestly ill-founded by the Court, even before the applicant has had the opportunity to fully substantiate their case. What this illustrates is that evidentiary rules are not neutral: they impact the conduct and final outcome of the proceedings.

Like its Inter-American and African counterparts, the Strasbourg Court is said to have complete freedom in the way it assesses the evidence. In other words, no rule interferes with or bounds its assessment: the Court is not expected, let alone legally required, either to give a definite weight to specific forms of evidence, or to privilege some types of evidence over others. This flexibility is implicitly understood to enhance its ability to grapple with the (true) facts of cases. The parentheses around the qualificative ‘true’ in the previous sentence gesture to the lack of expressed recognition in the Strasbourg jurisprudence to the principle that ‘searching for the truth’ would be a core value for the Court in its assessment of evidence.10 Having said this, it goes without saying that the Court is expected to avoid basing its judgment on ‘facts’ that would not be ‘true’. My contribution to the Special Issue nonetheless reaches the disturbing conclusion that in politically sensitive cases, the Court is not always willing to see, acknowledge, and act upon the factual reality that is arguably unequivocally emerging from the evidence before it, according to which the respondent state has violated the European Convention on Human Rights (Convention). This conclusion also transpires, though less explicitly so, from the other three contributions.

Moving on to the standard of proof, one might venture to suggest that ‘beyond reasonable doubt’ (brd) is the Strasbourg default. An exacting standard,11 brd originates from the Common Law legal tradition where it applies in criminal proceedings. The Inter-American and African human rights courts have mostly deemed it inappropriate for application in their own jurisdiction.12 What hold it has in the Strasbourg jurisprudence is far from clear. According to some authors, brd applies in relation to complaints brought under specific Convention provisions, such as Articles 2 and 3, whilst others argue that it applies throughout the Strasbourg case law, but it is also occasionally opined that brd has in effect long been abandoned by the Court (which is presumably still observed to use the label, but in a way thought to sit outside what the concept can conceivably be understood to cover).13 For seasoned observers of the Court to reach such a diverse array of conclusions as to the brd’s ambit is surprising. This denotes an extraordinary lack of clarity within the Strasbourg jurisprudence – as well as, possibly, on the benches of the Court themselves.14

Evidentiarily confusion at Strasbourg is not confined to the brd standard. It affects other standards too, including prima facie (literally, ‘at first sight’). This standard denotes evidentiary weakness. Applying it makes sense in some circumstances, including when the Court considers whether it should shift the burden of persuasion from the applicant, who has proven their allegations prima facie, to the respondent state, who has or can be expected to have stronger evidence in its possession, which would be submittable to the Court. No fewer than three contributors to this Special Issue observe that the Court is using the ‘prima facie’ label wrongly: in studies conducted independently from one another, each of them finds that before accepting to shift the burden of proof onto the respondent state, the Court requires from the applicant far stronger evidence in practice than what can reasonably be understood to fall under the prima facie label. This results in cases where the burden of persuasion is not shifted onto the state but kept on the applicant who, unable to bring a strong proof of their allegations, loses their case – however much the latter seemed prima facie convincing. I note this disturbing phenomenon in respect to the revision request of the no-torture finding in Ireland v the United Kingdom;15 Kristin Henrard does the same in respect to complaints of violent direct racial discrimination; whilst the ‘upscaling’ of the prima facie standard is at the very core of Grażyna Baranowska’s contribution, which criticises the Court for putting victims of pushbacks in the impossible situation of having to prove their undocumented treatment.

As for what I have called above the scope of permissible evidence, the principle according to which domestic courts are primarily responsible for establishing the facts of Strasbourg cases makes it a crucial issue in the Strasbourg jurisprudence. Logically, once a fact has been established by the domestic courts, it no longer requires any evidencing before the Strasbourg Court. It may then be deemed by the ECtHR to no longer lend itself to be ‘reopened’ during the Strasbourg proceedings, even if it has been erroneously established. Any such ‘closure’ tends to advantage the state (who overall won the case before the domestic courts, as otherwise the applicant would not have turned to Strasbourg). Whenever the Strasbourg Court explicitly or implicitly refrains from reopening ‘the facts’, the applicant is prevented from correcting the factual basis upon which the case is being built, however inaccurate this basis.

The Court’s lack of disposition at questioning factual allegations advanced by the state is another common feature of the case law. For example, the Court most often accepts, without backing evidence, state submissions that a measure restricting a right guaranteed under Articles 8–11 of the Convention had been (as per the consecrated legal words) ‘necessary in a democratic society’. sas v France is one amongst many cases in point; here, the Court simply accepted that the ban of the wearing of the burqa in public space was necessary for people in France to be able to ‘live together’.16 Confounding lack of questioning on the part of the Court is not limited to case law related to the second paragraph of Articles 8–11. ph v Slovakia, for example, involved complaints related to Articles 2, 3, and 14 of the Convention.17 The respondent state explained that the applicant, a young Roma woman, had jumped from a 7.7 metres high window in an attempt to escape from a police station (from which she was about to be released). One cannot but wonder what happened for ph to be driven to take such desperate action, which could have cost her life.18 The Court accepted the state’s description of the events, speaking of the escape attempt in the judgment without raising any question about its plausibility.19

In a disturbing development, the Court’s propensity at accepting the respondent state’s version of the facts is now formally inscribed in the way cases are processed under the so-called ‘immediate and simplified communication procedure’ (imsi).20 Under imsi, the state is asked to provide a summary of the facts at a very early stage of the proceedings.21 Would the applicant’s legal representative fail to be quick at disputing the state’s version of the events, the latter is adopted by the Court; it thus becomes the factual, definite, basis of the judgment (with any later contestation of it by the applicant likely to be rejected by the Court).22 imsi is now implemented for most cases that come to Strasbourg.

In the absence of any evidentiary prescription in the Convention, the Court is largely free to adopt the evidentiary rules and practices which it deems suitable. This is a freedom it shares with other (not criminal) international courts. The ECtHR should use this privilege in consideration of the aim for which international human rights adjudication has been created, namely, the protection of the rights of human persons and the upholding of state accountability when these rights are violated. Most human rights cases see a mere individual fighting a state, with huge power differentials characterising the evidentiary capacity of the two parties. The Court can opt for evidentiary principles that weaken these differentials (as when it shifts the burden of proof from the applicant to the state); it can also adopt evidentiary rules and/or practices that reinforce them (as when it accepts the submissions of the respondent state, which it assumes is acting in good faith, even when these submissions are unsubstantiated or even entirely implausible, as in ph). In this context, the question of what ‘evidentiary fairness’ should entail in international human rights adjudication cannot but raise its head. The four contributors to this volume all have something to say about it.

Each author ends up advocating an evidentiary course slightly or utterly different from the one the Court is currently following in their reviewed field. This is done not only for reason of clarity and consistency (however an important consideration this is too), but mostly out of normative concern.

The case studies will now briefly be introduced. This is done in the order in which they appear in the Special Issue, from the oldest and most established case law to the more recent and ‘frontier-like’.

My own contribution examines the foundational case of Ireland v United Kingdom.23 It was originally conceived as a legal examination of brd’s introduction into the Strasbourg jurisprudence.24 My dissection of the case indicated, however, that the Court had strategically used evidence to avoid having to find that the United Kingdom had tortured 14 men in Northern Ireland during ‘the Troubles’. This was the more puzzling since the Court had adapted brd from its original Common-Law setting, specifying that it could be met at Strasbourg through the drawing of inferences. The case was replete with evidence indicating torture. The Court nonetheless drew no inference, producing a startling discrepancy between principled pronouncements and actual practice, which seems to have to be explained by the Court having feared a British backlash if it found torture. This hypothesis is largely confirmed by the Court’s recent reaffirmation of its 1978 no-torture finding. Following the recent discovery of new evidence in declassified British archives, Ireland requested the no-torture finding to be revised. This was rejected in 2018, in a judgment over which ‘disingenuous’ brd hovers: the Court illogically doubts the significance of the newly found documents, and it requires the unwarranted and unattainable certainty that the Court of 1978 would have reached a torture finding if the new documents had been before it. Even though I show how brd can be politically used for what I call raison d’état/raison de Cour, I do not recommend that this standard be abandoned. My view is that, used alongside other standards as appropriate, brd can play a useful role in international human rights adjudication. This depends, however, on the Court confining itself to using it ‘virtuously’, i.e., for the sole purpose of contributing to the protection of human rights. This requires a number of conditions to be fulfilled, including a change of animus on its part, which it regrettably does not look close to be embracing.

The second contribution, by Kristin Henrard, shows that, absent good evidentiary rules and a fair distribution of the burden of proof between applicant and defendant, racial discrimination complaints have little chance to ever be upheld.25 Like the other three studies included in the Special Issue, the analysis presented here evolves with painstaking technical precision. The situations which attain in, and the ECtHR’s evidentiary approaches to, direct and indirect racial discrimination cases, are carefully distinguished. The latter concern seemingly neutral measures which indirectly discriminate against a particular group due to the disproportionate negative effects they entail for members of this group. Henrard praises the evidentiary course adopted by the Court in this case law since the jurisprudentially transformative dh and Others v the Czech Republic case,26 which concerned the overwhelming presence of Roma children in ‘special schools’ for the mentally disabled; the Grand Chamber took account of the statistical evidence submitted to it in order to shift the burden of proof onto the state,27 ultimately producing a violation of Article 14 (combined with Article 2 of Protocol No 1). Whilst the ongoing search for fairness in indirect racial discrimination cases is one of finetuning, Henrard notes that the search for fairness is more complex and has been less satisfactory in direct racial discrimination cases, where the applicant alleges they have been targeted for ill-treatment or abuse due to nothing else but their membership of a disliked group. Notwithstanding the identification of some promising developments, Henrard argues that, in this case law, the Court remains to provide national authorities and courts with proper guidance on the relevant parameters for a prima facie case and its rebuttal. She urges the ECtHR to do so, while nudging the Court to connect any lack of (proper) domestic investigation of the incident at the basis of the complaint to its likely discriminatory intent.

The next contribution, by Joseph Finnerty, tries to make sense of the Court’s successive evidentiary approaches in the fast-developing case law related to Article 18 of the Convention.28 Long dormant, this provision is increasingly relied upon by applicants who allege they are being illegitimately targeted by the state in reprisal for their attempts to ensure the accountability of state authorities. In lay words, Article 18 forbids states from using exceptions to human rights guarantees, theoretically permissible under the Convention, if they do so in pursuit of an undemocratic ‘hidden agenda’. The hidden abusive nature of the motivation behind, say, the imprisonment or criminal prosecution of a political opponent, often makes it difficult for the victim who brings a case to Strasbourg under Article 18 to directly substantiate their allegations. In turn, the resulting uncertainty as to the reality of the state’s hidden agenda long made the Court hesitant to uphold Article 18 complaints. Only in 2004 did the Court find a violation of Article 18 for the first time: a state document was produced which unambiguously revealed the authorities’ hidden agenda.29 The Court subsequently seemed to expect similarly incontrovertible direct evidence to support Article 18 complaints; this approach made Article 18 unactionable except in extraordinary (‘main-dans-le-sac’) circumstances. In 2017, sitting as a Grand Chamber, the Court took the opportunity of the Merabishvili case, decided against Georgia, to revise its evidentiary approach in Article 18 cases.30 It introduced a three-legged test which intends to check, first, whether the Article 18 complaint is a fundamental aspect of the case; second, whether the state has been pursuing an ‘ulterior purpose’; and, third, whether any such purpose was the predominant element in the state’s motivation. Tracing the origins of the test’s various aspects to the Strasbourg and other courts’ jurisprudence, Finnerty systematically identifies the promises and pitfalls of the Court’s present evidentiary regime under Article 18. He shows that clarity, consistency, as well as feasibility and fairness, are lacking, and ultimately calls for the Court to approach evidence holistically, so as to avoid imposing an unattainably high standard of proof, and thus excessive burden, on applicants.

The final contribution, by Grażyna Baranowska, addresses the problem of the Court resisting the reality that, when states ‘push back’ migrants (i.e., when they force them back over a border), multiple violations of human rights occur, of serious gravity, which the Court should see as its mission to denounce as Convention violations.31 Complaints about pushbacks have surfaced in the Strasbourg case law in the last 15 years or so; they rarely have been upheld by the Court. Baranowska compares the legal situation that arises from a pushback operation with that which arises from an enforced disappearance. In both cases, the state acts covertly: it aims at leaving no trace of its action – or, if pushback operations are publicly known, at not making it possible for individual victims to be connected to them, for example by failing to record any detention. In both sets of cases, it is the state which is in possession of virtually all the evidence. This is the legally perfect circumstance, so to speak, for the Court to accept to reverse the burden of proof from the applicant to the respondent state. At surface level, this is what the ECtHR appears to be doing, both in enforced disappearance and in pushback cases. An in-depth examination of the case law reveals, however, that before being convinced to operate the shift, the Court requires stronger evidence in pushback than in disappearance cases. The Court nonetheless labels this stronger evidence prima facie also in the pushback cases. The misnomer has far-reaching consequences: without the burden of proof being reversed, the applicant’s pushback complaint is likely to be rejected. The title of the contribution makes it very clear what Baranowska feels is urgently needed: ‘Exposing Covert Border Enforcement: Why Failing to Shift the Burden of Proof in Pushback Cases is Wrong’.

This Special Issue only scratches the surface of the Strasbourg case law that could have been usefully examined to explore the question at its core.32 Some lessons can nonetheless be drawn from the four case studies that are offered. The first, which is undoubtedly worth stressing in some circles, is that the way the ECtHR chooses to approach evidence is a crucial issue. Any idea that it may not deserve sustained academic consideration must be dismissed out of hand. There is much to gain from studying evidence in both its empirical and normative dimensions (i.e., how the Court actually approaches evidence and how it should best do this).

A second lesson that emerges is that that the more serious a human right allegation, the more likely it is that any case it generates will be politically sensitive as well as evidentiarily complex. Such a case will therefore require from the Court that it navigates the evidentiary dilemmas it encounters with legal flair and clarity, as well as moral integrity.

A third lesson goes to the current characteristics of the evidentiary ‘system’ which the Court has been building ever since its original – very wise but unfortunately unapplied – evidentiary principled pronouncements in Ireland v United Kingdom. The word ‘system’ is purposely put in inverted commas in the last sentence. At one level, it is inconceivable that the Court would not have created an evidentiary system in the last half century: how could the Court otherwise have dealt, year in year out, month in month out, week in week out, with the multiple cases that required it to decide whether it could accept as established facts that were either openly disputed or best considered uncertain? Having said this, the four case studies presented in this Special Issue demonstrate that whatever else can be said about the Court’s evidentiary system, one thing can be asserted: it is not characterised by a high level of systematicity.

What clearly emanates from this Special Issue is that the Court’s ‘evidentiary system’ is highly complicated, often confusing, surprisingly technical, constantly evolving, commonly inconsistent, and repeatedly stacked against the applicant. For the system to be complicated, technical, and evolving is not a criticism: the evidentiary issues which the Court is called to tackle are complex and varied, and the Strasbourg evidentiary system could not possibly be simple and/or settled once and for all. By contrast, there is no (good) excuse for it to be deeply confusing and inconsistent, not to mention regularly leaving the respondent state off the hook.

Judges and Registry lawyers hold very different views as to the place evidentiary issues occupy in their day-to-day practice.33 If this Special Issue shows one thing, surely it is that the Court cannot afford not to be interested in its evidentiary system. It is time the Court realises it must (1) pay close attention to evidentiary concepts, (2) devise technically clear evidentiary rules which are normatively beyond reproach, and (3) keep to these rules in practice (and, if not, identify and explain their exceptions).

Acknowledgements

This Special Issue is an output of the Horizon 2020 research project ‘dissect: Evidence in International Human Rights Adjudication’, generously funded by the European Research Council through an Advanced Grant (erc-AdG-2018-834044). The author warmly thanks the dissect research team and Advisory Board for their continual impulse, the contributors to the Special Issue for having stayed on board a project whose completion took longer than originally envisaged, and the editors of the eclr for their patience. Hanaa Hakiki and Anne-Katrin Speck contributed specific details to this Introduction.

1

No comprehensive study (in English) of the evidentiary system of the ECtHR has been published before, after, or during the 25-year interval that separates Juliane Kotott’s pioneering study (J Kotott, The Burden of Proof in Comparative and International Human Rights Law (Brill 1998)) and Torsten Stirner’s treatise (T Stirner, The Procedural Law Governing Facts and Evidence in International Human Rights Proceedings: Developing a Contextualized Approach to Address Recurring Problems in the Context of Facts and Evidence (Brill 2021)).

2

My phrasing is not meant as an endorsement of the facts-law distinction, which hardly holds in practice: KL Scheppele, ‘“Just the Facts, Ma’am”: Sexualized Violence, Evidentiary Habits, and the Revision of Truth’ (1992) 37 new york law school review 123.

3

The European Commission of Human Rights was originally the Convention-designated fact-finding body, whose findings, however, needed not be accepted by the Court (as illustrated in Ireland v the United Kingdom [Plenary Court] 5310/71 (ECtHR, 18 January 1978), dissected in my contribution to this Special Issue). With the entry into force of Protocol No 11 in 1998, which marked the demise of the Commission, the Court can no longer rely on the Commission’s fact-finding. It will investigate the facts itself, including through instituting a fact-finding mission, if it is so inclined. It rarely acts upon this possibility. See P Leach, ‘Fact-Finding: European Court of Human Rights (ECtHR)’ (2018) in Max Planck Encyclopedia of International Procedural Law [MPEiPro] HR Fabri, R Wolfrum (eds), (online edn).

4

M Kazazi, Burden of Proof and Related Issues: A Study on Evidence Before International Tribunals (Martinus Nijhoff 1995).

5

The African Court on Human and People’s Rights tends to approach the burden of proof as a burden shared between the parties to a case, with each party accordingly being made responsible for proving their own allegations – as per the original sense of the Latin adage actori incumbit probatio. On this notion, see G Niyungeko, La preuve devant les juridictions internationales (Bruylant 2005). The Inter-American Court of Human Rights does not as such dispute the idea that the burden of persuasion would initially rest with the applicant, but it (relatively) easily lets itself be convinced that circumstances are such that the burden of persuasion must be transferred to the respondent state, for example because the latter is (or should be) well-placed to provide evidence of what happened.

6

See C Roberts, ‘Reversing the Burden of Proof Before Human Rights Bodies’ (2021) 25(10) The International Journal of Human Rights 1682.

7

Ireland (n 3); Ireland v the United Kingdom (revision) 5310/71 (ECtHR, 10 September 2018).

8

See, for example, Nachova and Others v Bulgaria [gc] 43577/98 and 43579/98 (ECtHR, 6 July 2005) para 147. One should expect, however, any evidence obtained under torture to be declared inadmissible by the Court.

9

Rule 47 §2(b) of the Rules of the Court and Practice Directions on the Institution of Proceedings, para 5.

10

According to dissect PhD candidate Anne-Katrin Speck, who has conducted research fieldwork at the seat of the Court, ECtHR Judges do not see it as their role to unveil ‘the truth’: work-in-progress dissertation Chapter provisionally entitled ‘A “Common Sense” Approach to Evidence? Perceptions From Strasbourg About the Court’s Role in Fact-Heavy Cases’ (on file with the author).

11

Although not the most exacting standard. Finnerty notes that ‘direct and incontrovertible evidence’ is an even more exacting standard than brd. J Finnerty in this Special Issue.

12

With exceptions. dissect PhD candidate Edward Murimi observes that the African Court of Human and Peoples’ Rights in effect applies something like the brd standard in respect to compensation claims: work-in-progress dissertation Chapter (on file with the author). In the famous Velásquez Rodríguez v Honduras case decided by the Inter-American Court of Human Rights (Velásquez Rodríguez v Honduras, Judgment, Inter-American Court of Human Rights Series C No 4 (29 July 1988)), it can be said that the practice of disappearances was proven brd, but that the way the particular victim was linked to this practice was proven on the preponderance of probabilities. I am grateful to Diego Rodríguez-Pinzón for this insight.

13

C Bicknell, ‘Uncertain Certainty? Making Sense of the European Court of Human Rights’ Standard of Proof’ (2019) International Human Rights Law Review 155, 163, and references cited therein.

14

My contribution to this Special Issue highlights ambiguities in the Court’s evidentiary lexicon due to Judges being drawn from both the Common and the Civil Law traditions.

15

Ireland (n 7).

16

sas v France [gc] 43835/11 (ECtHR, 1 July 2014), commented by E Brems, ‘sas v. France: A Reality Check’ (2016) 25 Nottingham Law Journal 58.

17

ph v Slovakia 37574/19 (ECtHR, 8 September 2022).

18

ph was relatively ‘lucky’: her fall was softened by tree branches and a layer of snow, and when she woke up from a month-long induced coma, she was apparently fine.

19

See my commentary: MB Dembour, ‘The Escape of the State: No Shift in the Burden of Proof and No Anti-Roma Discrimination by the Police in ph v Slovakia’ (dissect Blog, 31 November 2022): <https://dissect.ugent.be/the-escape-of-the-state-no-shift-in-the-burden-of-the-proof-and-no-anti-roma-discrimination-by-the-police-in-p-h-v-slovakia/>.

20

See Steering Committee for Human Rights, ‘Securing the Long-Term Effectiveness of the Supervisory Mechanism of the European Convention on Human Rights: The Court’s Action in 2018–2019’ (14 June 2019) cddh(2019)25.

21

Ibid point 3.

22

As alarmingly explained by former Judge Keller in an intervention entitled ‘Experts and Judges: Not a Dream Team, Rather a Mésalliance’ (Translating Climate Science for the Human Rights Court Room: An Interdisciplinary Encounter Between Science and Law, 2 March 2023): <https://www.youtube.com/watch?v=DBtwVvMNpf0>.

23

MB Dembour in this Special Issue.

24

Ireland (n 3).

25

K Henrard in this Special Issue.

26

dh and Others v the Czech Republic [gc] 57325/00 (ECtHR, 13 November 2007).

27

Ibid paras 187–88.

28

Finnerty (n 11).

29

Gusinskiy v Russia 70276/01 (ECtHR, 19 May 2004).

30

Merabishvili v Georgia [gc] 72508/13 (ECtHR, 28 November 2017).

31

G Baranowska in this Special Issue.

32

The Webinar ‘Evidence and Proof in Proceedings Before the European Court of Human Rights’, held online on 5 July 2021, from which this Special Issue emerged, included contributions by Jasmine Sommardal (discussing case law involving national security issues) and Katarzyna Sekowska-Kozlowska (discussing case law about domestic violence), for example. See J Sommardal, ‘Considerations Which the Court is Not Well Equipped to Challenge? – The Obligation of the Contracting Parties to Produce National Security Evidence Before the European Court of Human Rights’ (Evidence and Proof in Proceedings Before the European Court of Human Rights, 5 July 2021): <https://www.youtube.com/watch?v=orVc9mKF9pU>; K Sekowska-Kozlowska, ‘When is Domestic Violence Discriminatory? From Opuz v Turkey (2009) to Volodina v Russia (2019)’ (Evidence and Proof in Proceedings Before the European Court of Human Rights, 5 July 2021): <https://www.youtube.com/watch?v=qhZcC2v5jEw>.

33

AK Speck (PhD Thesis, Ghent University, forthcoming).

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