Recommendation
1671 (2004)1
Ratification
of protocols and withdrawal of reservations and derogations made in respect
of the European Convention on Human Rights
1. The Parliamentary Assembly
underlines the unique and exemplary role played by the European Convention on
Human Rights in protecting and developing human rights in Europe over the last
fifty years. It pays tribute to the Convention’s vitality and dynamism as
demonstrated both by the case-law of the European Court of Human Rights and by
the adoption of thirteen protocols, some of which have adapted the supervisory
machinery while others have added new rights.
2. In order to respond to new needs or
to strengthen certain rights already protected, the Assembly has several times
invited the Committee of Ministers to adopt additional protocols adding new
rights to the Convention. While this policy will be continued for as long as
necessary, it is also important to make sure that the entire body of
Convention law – comprising the Convention and all the additional protocols –
is ratified by all member states and applied throughout all parts of their
territory without exception. The Assembly intends doing everything in its
power to achieve this.
3. With the exception of those
amending the supervisory machinery established under the Convention (Protocols
Nos. 2, 3, 5, 8, 9, 10 and 11), none of the thirteen protocols to the
Convention have been ratified by all member states, even though all, other
than Protocol No. 12, have entered into force.
4. For example, Protocol No. 1
guaranteeing the right to the peaceful enjoyment of possessions, the right to
education and the right to free elections, which was opened for signature in
1952, has still not been ratified by three of the member states; Protocol No.
4 guaranteeing freedom of movement and prohibiting the collective expulsion of
aliens, which was opened for signature in 1963, has still not been ratified by
five member states; Protocol No. 6 abolishing the death penalty, which was
opened for signature in 1983, has still not been ratified by two member
states; Protocol No. 7 introducing in particular certain procedural
guarantees, which was opened for signature in 1984, has still not been
ratified by ten member states; Protocol No. 12 introducing a general
non-discrimination clause, which was opened for signature in November 2000,
has so far been ratified by only five states; while Protocol No. 13 concerning
the abolition of the death penalty in all circumstances, which was opened for
signature in 2002, has already been ratified by twenty member states.
5. Furthermore, the Assembly, whose
constant concern has been to see that all the rights guaranteed by the
European Convention on Human Rights and the decisions of the Court be
implemented in all of the Council of Europe’s member states, has noted that
the reservations and derogations made in respect of the Convention limit the
scope of the Convention.
6. Some member states, when ratifying
the Convention, entered one or more reservations under its Article 57 and some
of these reservations, entered several years ago, have not been withdrawn.
7. Such reservations are permitted to
the extent that legislation in force at the time in the territory of the
contracting party is not in conformity with a particular provision of the
Convention. They should not therefore be of a permanent nature and should be
confined to the period required to bring the legislation in question into
conformity with the Convention.
8. Similarly, derogations entered
under Article 15 should be temporary since they are only possible in the event
of a state of emergency. In this respect, the Assembly takes note of the
procedural provisions underlying the United Kingdom’s derogation and welcomes
the imposition of full parliamentary scrutiny by the Privy Council Review
Committee charged with overseeing implementation of the Anti-terrorism, Crime
and Security Act 2001.
9. It must nevertheless be
acknowledged that numerous states have in fact withdrawn reservations,
declarations or derogations, as is the intended practice. The Assembly
welcomes such conduct and congratulates the states in question for their
commitment to the protection of human rights and their respect for the
principles of international law.
10. The Assembly consequently
recommends that the Committee of Ministers invite the States Parties to the
European Convention on Human Rights to:
i. ratify all the protocols within
three years of the adoption of the present recommendation, without prejudice
to any shorter deadlines which may be set for certain member states;
ii. withdraw any reservations which
they made upon ratifying the European Convention on Human Rights after,
where appropriate, amending the legislation which justified the reservation
in order to bring it into conformity with the Convention, within three years
of the adoption of the present recommendation;
iii. limit recourse to, and the
duration of, derogations under Article 15 to only those exceptional
circumstances provided for in this article, and accompany derogations by
effective parliamentary scrutiny.
11. Finally, the Assembly recommends
that the Committee of Ministers examine carefully any notification of
derogation received under Article 15.
1. Text adopted by the Standing Committee,
acting on behalf of the Assembly, on 7 September 2004 (see Doc. 10136,
report of the Committee on Legal Affairs and Human Rights, rapporteur: Mr
Olteanu).
