The Procedural Law Governing Facts and Evidence in International Human Rights Proceedings

Dr. Torsten Stirner is an attorney at a leading law firm in Germany. He was a Researcher at the Institute of International and European Law at the University of Göttingen. His publications include an edited book, Verhältnismäßigkeit im Völkerrecht (2016), as well as contributions in Law Journals.

Acknowledgments

Abbreviations



1 Introduction

 1.1 Criticism Addressing the Lack of a Principled Approach

 1.2 Legitimacy of the Procedural Outcomes: To Elicit a Pull towards Compliance

 1.3 Developing a Standard: How to Review and Develop Procedural Law Governing Facts and Evidence

 1.4 Structure of This Volume

 1.5 Sources of the Law of Facts and Evidence in International Human Rights Proceedings



2 Definitions and Procedural Concepts

 2.1 Standard of Proof, Evaluation of Evidence and Admission of Evidence

 2.2 The Burden of Proof – The Persuasive Burden

 2.3 Adversary and Investigatory Proceedings in Theory

 2.4 The Evidentiary Burden, the Burden to Come Forward with Evidence and the Tactical Burden

 2.5 A Shift in the Burden of Proof vs. Facilitation of Proof Such as Factual Presumptions/Prima-Facie Evidence

 2.6 Fact-Finding by an International Human Rights Institution



3 Parameters of the Procedural Frameworks of International Human Rights Institutions Framing the Law Relating to Facts and Evidence

 3.1 European Court of Human Rights

 3.2 Inter-American Court of Human Rights

 3.3 UN Human Rights Committee

 3.4 Implications for the Following Analysis of the Evidentiary Process



4 Subsidiarity and the Evidentiary Procedure

 4.1 Deference: The Interrelation between Subsidiarity and the Facts Established in the Domestic Proceedings

 4.2 Subsidiarity: Limits to the ECtHR’s Fact-Finding and Evaluation of Evidence

 4.3 Subsidiarity and Deference in the Two-Entity-System of the Inter-American System

 4.4 Subsidiarity: Limits to the Committee`s Fact-Finding and Evaluation of Evidence

 4.5 Summary and Problems in Need of Addressing



5 Standard of Proof in International Human Rights Proceedings

 5.1 Introduction to the Concept of a Contextualized Standard of Proof

 5.2 Standard of Proof in the Proceedings of the European Court of Human Rights

 5.3 Standard of Proof in the Proceedings of the Inter-American Court of Human Rights

 5.4 Standard of Proof in the Proceedings of the UN Human Rights Committee

 5.5 Summary and Problems in Need of Addressing



6 Allocation of the Persuasive Burden in International Human Rights Proceedings

 6.1 Approaches regarding the Allocation of the Persuasive Burden

 6.2 Allocation of the Persuasive Burden in the Procedure before the European Court of Human Rights

 6.3 Allocation of the Persuasive Burden in the Procedure before the Inter-American Court of Human Rights

 6.4 Allocation of the Persuasive Burden in the Procedure before the Human Rights Committee

 6.5 Summary and Problems in Need of Addressing



7 The Introduction of Facts and Evidence in the Proceedings of International Human Rights Institutions

 7.1 Investigatory or Adversarial Proceedings – The Theoretical Foundation and Procedural Reality

 7.2 The Introduction of Facts and Evidence in the Procedure of the ECtHR

 7.3 The Introduction of Facts and Evidence in the Procedure before the Inter-American Court of Human Rights

 7.4 The Introduction of Facts and Evidence in the Procedure before the U.N. Human Rights Committee

 7.5 Summary and Problems in Need of Addressing



8 The Lack of Cooperation by the Respondent State

 8.1 Non-Cooperation with Respect to the Establishment of the Facts and Why There Must Not Be Default Findings

 8.2 Consequences of Non-Cooperation by the Respondent State – European Court of Human Rights

 8.3 Consequences of Non-Cooperation – Inter-American Court of Human Rights

 8.4 Consequences of Non-Cooperation – Human Rights Committee

 8.5 Summary and Problems in Need of Addressing



9 The Admission of Evidence in Proceedings before Human Rights Institutions

 9.1 Introduction

 9.2 Admission of Evidence before the European Court of Human Rights

 9.3 Admission of Evidence before the Inter-American Court of Human Rights

 9.4 Admission of Evidence before the U.N. Human Rights Committee

 9.5 Summary and Problems in Need of Addressing



10 The Evaluation of Evidence by the Human Rights Institutions

 10.1 Introduction to the Systems of Assessing Evidence

 10.2 The Evaluation of Evidence by European Court of Human Rights

 10.3 The Evaluation of Evidence by the Inter-American Court of Human Rights

 10.4 The Evaluation of Evidence by the UN Human Rights Committee

 10.5 Summary and Problems in Need of Addressing



11 Rationalizing and Advancing the Law Governing Facts and Evidence on the Basis of a Sui-Generis, Contextualized Approach

 11.1 Subsidiarity and the Law Governing Facts and Evidence

 11.2 Proposal for a Contextualized Standard of Proof

 11.3 The Persuasive Burden and Its Link to the Substantive Law

 11.4 Fact-Finding and Facts and Evidence Presented by the Parties, Factual Presumptions and Tactical Burden

 11.5 Consequences of Non-Cooperation

 11.6 Admission and Evaluation of Evidence



Bibliography

Index