Cablegate: Legal Adviser's Discussions with the European Court of Human

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PP RUEHAG RUEHAST RUEHDA RUEHDBU RUEHDF RUEHFL RUEHIK RUEHKW RUEHLA
RUEHLN RUEHLZ RUEHNP RUEHPOD RUEHROV RUEHSK RUEHSL RUEHVK RUEHYG
DE RUEHSR #0020 2581413
ZNR UUUUU ZZH
P 151413Z SEP 09
FM AMCONSUL STRASBOURG
TO RUEHC/SECSTATE WASHDC PRIORITY 0183
INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE
RUEHSR/AMCONSUL STRASBOURG 0194

UNCLAS STRASBOURG 000020

SIPDIS

STATE ALSO FOR DRL, L, EUR/ERA AND EUR/WE

E.O. 12958: N/A
TAGS: PHUM PREL COE FR
SUBJECT: LEGAL ADVISER'S DISCUSSIONS WITH THE EUROPEAN COURT OF HUMAN
RIGHTS PRESIDENT

REF: STRASBOURG 12

Sensitive but Unclassified - Please Protect Accordingly.
1. (SBU) SUMMARY: Legal Adviser Harold Koh and European Court
of Human Rights President Jean-Paul Costa supported increased
contact between the U.S. and the Court during a meeting in
Strasbourg September 11, with Costa noting that both face many
of the same challenges. Koh outlined increased U.S. engagement
with human rights fora, with Costa and his staff describing the
challenges of an ever increasing and often politicized case
load. Incoming Council of Europe Chair Switzerland will host a
conference February 18-19 in Interlaken to discuss the court's
future over the next decade. Representatives from L and
possibly DRL may be invited to attend. Costa was accompanied by
Polish Judge Lech Garlicki, Deputy Registrar Michael O'Boyle,
and Deputy Chief of Staff John Darcy. Koh was accompanied by
Consul General. End summary
2. (SBU) Costa and Koh agreed on the usefulness of increased
contacts, with Koh noting the context of U.S. engagement with
the Human Rights Council and other international human rights
fora. Costa underscored that the U.S. and the Court face many
of the same challenges, including finding a balance between the
fight against terrorism and the protection of freedom. Both
also agreed on the efficacy of the Council of Europe's Committee
of Legal Advisers on Public International Law (CAHDI - whose
September 10-11 sessions Koh attended), with Costa and Darcy
stressing how CAHDI had provided a clear legal opinion
supporting Protocol 14bis (reftel), thereby sidestepping
Russian reluctance to ratify Protocol 14 and streamlining some
of the Court's procedures.
3. (SBU) In Costa's view, the court has had an increased impact
on the legal systems of member states. That said, he
acknowledged the need for greater implementation by member
states of the European Convention on Human Rights. In one
sense, Costa observed, the court is a victim of its own success,
with an ever increasing number of applications leading to the
current backlog of 100,000 cases. The court, Costa and his
colleagues underscored, cannot sustain this trend. Given the
pace of applications, the court would have 300,000 cases by
2020.
4. (SBU) Garlicki said there are potential ways to reduce the
caseload. One would be the transformation of the court into a
constitutional court that could determine which cases it would
accept. Costa cited the example of the European Court of
Justice with its separate Court of First Instance as another way
to filter cases. Assistant Registrar O'Boyle cautioned that the
court should not destroy the perception that it is open to
individual citizens. Perhaps, he added, the court could adopt
an advisory opinion system or require similar cases to be
grouped under a petition system.
5. (SBU) Costa noted another problem - political pressures from
some countries (Russia, Turkey, Ukraine, and others with high
per capita numbers of cases) on the court. In addition, the
court faces pressures on various cases dealing with inter- and
intra-state conflicts. He observed that Georgia has brought two
cases against Russia (the first dating from the expulsion of
1,500 ethnic Georgians from Russia a few years ago, the second
dating from the August 2008 conflict). Costa explained that,
given all these challenges, the upcoming COE Chair, Switzerland,
will sponsor a conference in Interlaken February 18-19 to
discuss how the court will function over the next decade.
6. (SBU) A separate meeting with Court Vice President Nicolas
Bratza (UK) September 11 echoed many of the themes raised in the
Costa meeting. Bratza lamented the increasing criticism of the
court by national judges. According to Bratza, some national
judges perceive an increased willingness by the court to
overrule national court decisions, particularly regarding
Article Eight (right to respect for private and family life) and
Article Ten (freedom of expression) of the European Convention.
Likewise, some perceive an uneven record of the court in
respecting precedent.
7. (U) Legal Adviser Koh has cleared this message.

CARVER

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