Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
The following case scenarios were developed for the trainings organized by project partners during the project "Judging the Charter". We conducted several trainings in project countries for judges but also lawyers and other legal practitioners, like for example staff of ombudsmen institutions and equal treatment bodies. Trainings were devoted to the practical usage of the Charter of Fundamental Rights, including the formulation of preliminary reference questions. Some of the trainings were focused on the field of asylum law. In these training sessions we had a chance to test training materials prepared beforehand.
From experience gained during national trainings we can share information that might be of the assistance for those, who will use this manual in their educational activities.
The application of the Charter in national procedures, including when referring a question to the Court of Justice of the European Union, is not an easy task. It requires detailed knowledge of European law and the jurisprudence of the CJEU.
From our experience we know that, before moving to more detailed and specialised trainings, like on asylum law, one should make sure that participants have a basic understanding of European institutions and EU law. Lawyers, and especially judges, do not rush to reveal gaps in their knowledge, therefore it is important to make sure that they have a basic understanding.
We have developed different materials in order to contribute to an easy understanding of the Charter basics as for instance:
Those materials can be found on the project website: XXXXXXX. If not done in a separate training session, trainings on the Charter and asylum should also refer to these basics and specifically to the Charter and its application (especially Article 51).
All trainings conducted were evaluated. What was valued the most by the participants was their practical character. Working on a real case, discussing different strategies and interpretations in small groups, answering the legal questions, formulating an opinion and delivering the verdict, is what lawyers like to do, have competences to do, and it is how they learn. We heard opinions that despite some previous seminars or courses that were of more traditional lecturing style, participants for the first time really understood and learned the subject matter. In order to achieve this objective we designed case scenarios. Participants were provided with case studies, a selection of relevant legislation, and clear detailed instructions what was expected from them. Only after the presentation of the results of their discussions in small working groups they were told the facts of the real case, the ruling of the CJEU (or a national court), and were provided with the written answers to the scenario. In the following chapter we include all the materials, so in the preparation of the training one should decide what part is to be distributed to participants at the beginning and what part at the end of work.
In the next chapter we included several case scenarios that might be used in trainings or treated as an inspiration for developing ones own materials.
The scenarios are divided into thematic fields mirroring the order of the first part of the manual. Each important subject matter referred to in the Manual has its reflection in the scenarios.
Each scenario has the same structure and is provided in a ready to print format.
1. Facts of the case
In some cases facts reflect closely real situations and cases that were dealt with by the national authorities and courts as well as by the CJEU. In some cases the jurisprudence of the CJEU is just an inspiration, so even if the issue is the same, the case scenario might differ from the real one.
In each scenario we inform, on which case of the CJEU the scenario is based on, and what issues can be addressed by working with this particular scenario.
2. Arguments to be considered
In some cases there is a need to share additional information with trainees in order for them to grasp the key issues they have to concentrate on or because there are some factors they simply need to know in order to be able to solve the case.
3. Legal Framework
It is important that participants are not left with the big volume of law relevant for the case as from the practical point of view that would require dedication of much more time than is available during the training. So, in our scenarios, we include the most important and necessary regulations. That can be both European and national law. Of course participants should also have a text of the Charter available.
4. Questions
Pre-formulated questions indicate the direction of research and ensure focus. Since the cases are interesting and of precedent character, it is probable that the discussions within small groups could last too long. So it is important to focus on the delivery of an answer. This also provides an opportunity for the comparison of answers delivered by different groups.
Information for trainers
Information for trainers is provided on a separate page. This part is obviously not distributed to participants before they deliver their own answers. Once they decide on their answers they may compare both. Also, it is important that answers include selected, most relevant quotations from the rulings of the CJEU. It is up to the trainers, if they want to distribute this information or just refer to it by providing information in their own words.
Follow-Up Questions
Since the scenarios are based on cases stemming from different countries and jurisdictions, it is important for participants to refer also to ones own daily routine and legal reality. This might be done by trainers already when tailoring a scenario to the specific need of the target group (when we adapt both, facts and legal framework sections, to our national situation). If this is not done, it can be interesting to discuss follow up questions that introduce, inter alia, the national context. Participants may elaborate, how they would evaluate and decide on a similar case in their country. But one can also formulate other follow-up questions inspired by the case, for instance regarding the development of the jurisprudence line or legislative developments.
In the preparation of national trainings we put stress on detailed guidance for facilitators. Not all experts on the substance have experience in the application of interactive teaching methods and it is important to deliver them necessary instructions. It might be by providing them detailed sessions scenarios that include subsequent elements of the session with instruction on how to proceed and how much time shall be dedicated to particular steps. It is important that during the training all necessary elements are taken into account, no questions are left unanswered or debrief is not done due to the shortage of time.
But instead of preparing a detailed timetable it might be also enough to provide just a framework for the session. Following is an exemplary framework structure of a training session.
1. Facilitator introduces the subject matter of the session, formulates expectations and outcomes.
2. Facilitator distributes the case study among participants, divided into small groups (not more that 5,6 persons in a group). Depending on the number of groups it might be the same case for all, or different cases. If we have more than three groups, it might be more efficient to distribute different cases (for instance one case for two groups and second case for the other two). In such a situation groups still will be able to compare their results but we will avoid repeating the same issues or arguments four or more times.
3. Participants should read the case scenario and discuss the questions. In the time given their task is also to prepare answers. Facilitators may suggest distribution of roles in a small group to organize the working process well (for instance: introduce moderators of the small group discussions making sure that everybody has a chance to take part; time keepers making sure that all tasks will be completed; note keepers drafting the arguments of the group; rapporteurs, who will presents the results of the group’s work). During the work in small groups training facilitators should monitor the situation, be available for additional instructions, make sure that the tasks are clear for the groups.
4. The results of the working groups are subsequently presented in the plenary. Participants should have a chance to present their findings but also to answer questions from other participants and facilitators. It is important that all groups have a chance to present their opinions. If groups were working on the same scenario, the facilitator may ask different groups to touch upon different issues and compare them with others. This approach ensures the participation of all. If we ask each group, one by one, to present the whole case, it might become boring and frustrating as each subsequent group would have to repeat similar things.
5. After the participants have discussed the questions and provided their opinions and answers, the facilitator should present and discuss with participants the findings of the CJEU, especially underlying the elements that are different from the conclusions of the small groups.
6. Finally there should be some time for follow-up questions (we may also ask participants to think it over and discuss during the break or later on). Also, in the general debrief of the session, the facilitator may formulate some questions regarding participants experience during the session and ask them for the evaluations. There should be also time for any remaining questions.