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Ratification of protocols and withdrawal of reservations and derogations made in respect of the European Convention on Human Rights
Doc. 10136
13 April 2004
Report
Committee on Legal Affairs and Human Rights
Rapporteur: Mr Ionel Olteanu, Romania, Socialist Group
For debate in the Standing Committee — see Rule 15 of the Rules of Procedure
Summary
The European Convention on Human Rights (ECHR) has played a unique and exemplary role in protecting and developing human rights in Europe over the last fifty years; its vitality and dynamism are demonstrated both by the case-law of the Court and by the adoption of thirteen protocols.
In order to respond to new needs or to strengthen certain rights already protected, additional protocols introducing new rights have been added. At the same time, it remains important to make sure that the entire body of Convention law – comprising the ECHR and all the protocols – is ratified by all member states and applied throughout all parts of their territory without exception. Furthermore, the various reservations, declarations and derogations made in respect of the ECHR limit its scope.
The Assembly therefore recommends inter alia that the Committee of Ministers invite states party to ratify all protocols and withdraw any reservations within a maximum of three years, limit recourse to derogations to the appropriate exceptional circumstances and accompany them by effective parliamentary scrutiny. It should also invite national parliaments, the Secretary General of the Council of Europe and the Ad hoc Committee of Legal Advisers on Public International Law to assist in this process and welcomes the developing jurisprudence of the European Court of Human Rights concerning reservations and derogations.
I. Draft recommendation [Link to the adopted text]
1. The Parliamentary Assembly underlines the unique and exemplary role played by the European Convention on Human Rights (ECHR) 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 Court 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 bring this about.
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 foreigners, 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, 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 implementation of all of the rights guaranteed by the European Convention on Human Rights and the decisions of the Court 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. In the same way, 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 this 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 this recommendation;
iii. limit recourse to, and the duration of, derogations under Article 15 to only those exceptional circumstances provided for in this Article and to 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.
II. Draft resolution [Link to the adopted text]
1. The Parliamentary Assembly, referring to its Recommendation …(2004) on the ratification of protocols and the withdrawal of reservations and derogations made in respect of the European Convention on Human Rights, invites the Parliaments of the member states to:
i. hold a debate on the ratification of the protocols with a view to their ratification within three years;
ii. re-examine one by one, with a view to their withdrawal, the reservations they have made in respect of the European Convention on Human Rights and if necessary to amend their domestic legislation so that it no longer contravenes the provisions of the Convention.
2. The Assembly encourages the Secretary General of the Council of Europe, assisted by the Treaty Office, in his efforts to ensure that reservations are admissible. It also invites the Secretary General to send to it any notification made in virtue of Article 15 of the ECHR and resolves to hold a debate on each derogation of which it is thus informed.
3. The work of the Ad hoc Committee of Legal Advisers on Public International Law (CAHDI), acting as the European Observatory of Reservations to International Treaties, is also encouraged by the Assembly, which urges the CAHDI to take all possible steps to assist member states to withdraw their reservations fully and promptly, including by considering also reservations to the ECHR which are no longer open to objection.
4. The Assembly welcomes the developing jurisprudence of the European Court of Human Rights with respect to its jurisdiction over reservations and derogations and the approach taken in cases involving inadmissible reservations or unlawful derogations.
III. Explanatory memorandum
by Mr Olteanu, Rapporteur
A. Origin of the rapporteur’s terms of reference
1. A motion for a recommendation (Doc 9252 dated 8 October 2001), tabled by Mr Marty (Switzerland, LDR) and sent to the Committee on Legal Affairs and Human Rights on 8 November 2001, proposed reopening the debate on the ratification of the protocols to the European Convention on Human Rights.
2. Approximately one and a half years later, a motion for a resolution (Doc 9669 dated 22 January 2003), tabled by Mr Clerfayt (Belgium, LDR) and sent to the Committee on Legal Affairs and Human Rights on 31 March 2003, proposed launching a debate on reservations to and derogations from the European Convention on Human Rights.
3. Following a proposal by the Committee on Legal Affairs and Human Rights, it was decided to combine the motion for a recommendation and the motion for a resolution.
B. State of ratification of the present thirteen protocols
i. Procedural protocols to amend the supervisory machinery
4. The procedural protocols (Nos 2, 3, 5, 8, 9, 10 and 11) each required ratification by all states party to the Convention itself in order to enter into force. Protocols No 9 and No 10 in fact never came into force prior to being superseded by Protocol No 1, which came into force on 1 November 1998 following ratification by all the then states party.
ii. Protocols adding new rights
5. As we have seen, the procedural protocols currently in force have been ratified by all states. However, several states have not yet ratified the protocols adding further rights. In fact, none of these protocols has as yet been ratified by all member states.
6. The oldest protocols have been ratified by most member states, but it should nevertheless be noted that the Principality of Andorra and Switzerland have not yet ratified Protocol No 1 regarding the right to peaceful enjoyment of possessions, the right to education and the right to free elections, even though it dates from 1952. Protocol No 4, which guarantees new rights such as prohibition of imprisonment for debt, freedom of movement and prohibition of the expulsion of nationals and the collective expulsion of aliens, has not been ratified by Greece, Liechtenstein or, once again, the Principality of Andorra and Switzerland.
7. The two protocols relating to the abolition of the death penalty, Protocols Nos. 6 and 13, still meet with the reticence of some member states; this is particularly true of Protocol No 13. Russia has not yet ratified Protocol No 6, even though the Parliamentary Assembly of the Council of Europe has already indicated its concern on this score in Resolution 1187 (1999). With the exception of Andorra, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Denmark, Georgia, Hungary, Ireland, Liechtenstein, Malta, Portugal, Romania, San Marino, Serbia and Montenegro, Slovenia, Sweden, Switzerland, Ukraine and the United Kingdom, most states have not ratified Protocol No. 13, which entered into force on 1 July 2003.
8. As regards Protocol No 7, which was opened for signature on 22 November 1984, several countries have not yet ratified the text, which provides a number of additional guarantees regarding the expulsion of aliens, fair trial and equality between spouses. Those concerned here are the Principality of Andorra, Belgium, Germany, Liechtenstein, Portugal, Spain, Turkey and the United Kingdom.
9. Protocol No 12, which was opened for signature on 4 November 2000, has been ratified by only a few countries, namely Bosnia and Herzegovina, Croatia, Cyprus, Georgia, San Marino and Serbia and Montenegro. As a result, it has not yet entered into force, as the text stipulates that ten ratifications are needed for it to do so. Furthermore, several countries have not yet signed it.
iii. Creation of a legally unified area
10. The adoption of the thirteen additional protocols to the European Convention on Human Rights was intended to provide solutions to new human rights problems and to strengthen the rights already protected by the Convention itself. Furthermore, their adoption establishes the recognition by the Committee of Ministers of the rights contained therein as fundamental, inalienable human rights.
11. The ratification of the different protocols by all states should make it possible to afford the now indispensable guarantee of certain fundamental rights. It would allow the creation of a Europe where human rights are respected in the same manner by all states, thus guaranteeing the assimilation of the entire body of Convention law throughout the continent. Non-ratification, by contrast, not only hinders the development of the Convention as a living instrument, but prevents pan-European implementation of the additional rights the protocols contain.
C. Withdrawal of reservations, declaration and derogations made in respect of the European Convention on Human Rights
i. Reservations
12. The European Convention on Human Rights is currently the most perfect sophisticated and effective of the instruments guaranteeing human rights, thanks to its judicial supervision of the member states’ compliance with its provisions. It is flexible and evolutionary in form, and this has allowed all member states to accede in different manners and so gradually enabled democracy to spread across the continent of Europe.
13. In acceding to the European Convention on Human Rights, states have voluntarily submitted to certain rules that may affect their sovereignty: the Convention is a binding legal text backed up by supervisory machinery, and states must ensure that they respect the principles which it enshrines. These agreed relinquishments of sovereignty are offset by the possibility of entering reservations, which permit the subsequent progressive adaptation of national law without in the meantime preventing ratification of the treaty. This very purpose, however, means that reservations should only be temporary.
14. However, the use of reservations and declarations must remain limited. Too frequent recourse to them would be at odds with the spirit of the Convention and hinder the transformation of Europe into an area of freedom and democracy. The only states which have currently withdrawn all their reservations to the Convention and its protocols are Belgium, Bosnia-Herzegovina, Iceland, Italy, Norway, Poland and Slovenia.
ii. Nature of the reservations and declarations
15. States’ reservations in respect of the European Convention on Human Rights may concern technical aspects of the Convention or fundamental problems, or they may relate to problems of interpretation.
16. Technical problems mainly concern the territorial application of the Treaty. For example, the Republic of Azerbaijan declared that it is unable “to guarantee the application of the provisions of the Convention in the territories occupied by the Republic of Armenia”. As long as such occupation remains real and effective, the declaration made by the Republic of Azerbaijan seems perfectly legitimate.
17. Reservations concerning fundamental problems have been entered in order to ensure that certain laws which are in force in the territory of a Contracting Party and may be incompatible with the Convention may remain in force for a certain period in order to give the parliament concerned time to carry out the required reforms. These reservations must therefore not continue unduly, and the state must, within a reasonable period, amend its laws to bring them into conformity with the Convention.
18. States may use declarations or reservations to state the manner in which they plan to apply the provisions of the Convention, usually by specifying that they must be applied in conformity with a given law. This type of clarification is generally tantamount to entering a reservation in respect of one of the provisions of the Treaty.
19. Some reservations or declarations have been abandoned by states, with the result that they now apply the Convention without restrictions.
iii. The use of reservations in practice
a. The Convention
20. Article 57 provides that, “Any State may when signing this Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision.” The Convention articles which have been the subject of reservations in accordance with Article 57 are listed below:
21. As regards Article 2 guaranteeingthe right to life, Malta has entered a reservation whereby “the defence of property to the extent required by the provisions of paragraphs a and b of Section 238 of the Criminal Code of Malta[1]” is also an instance in which, in accordance with paragraph 2 of Article 2 of the Convention, “Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary.”
22. Article 5 guaranteeing the right to liberty and security has been the subject of many reservations by states that have acceded to the Convention. Many of them provide that the provisions of this Article shall not call into question the special status of members of the country’s armed forces.
23. Armenia, for example, states that “the provisions of Article 5 shall not affect the operation of the Disciplinary Regulations of the Armed Forces of the Republic of Armenia approved by Decree No 247 of 12 August 1996 of the Government of the Republic of Armenia, under which arrest and isolation as disciplinary penalties may be imposed on soldiers, sergeants, ensigns and officers.”
24. Austria requires that application of Article 5 shall not interfere with deprivation of liberty as prescribed by the laws on administrative procedure.
25. Azerbaijan considers that the provisions of Article 5 “shall not hinder the application of extrajudicial disciplinary penalties involving the deprivation of liberty in accordance with Articles 48, 49, 50, 56-60 of the Disciplinary Regulations of the Armed Forces adopted by the Law of the Republic of Azerbaijan No 885 of 23 September 1994[2]”.
26. The CzechRepublic considers that Article 5 shall not hinder the imposition “of disciplinary penitentiary measures in accordance with Article 17 of the Act No 76/1959[3] on Certain Service Conditions of Soldiers”.
27. For France, there shall be no hindering of “the application of the provisions governing the system of discipline in the armed forces, contained in Section 27 of Act No 72-662 of 13 July 1972 determining the general legal status of military servicemen, nor of the provisions of Article 375 of the Code of Military Justice”.
28. For Lithuania, it shall not affect “the operation of the Disciplinary Statute (Decree No 811, October 28, 1992) adopted by the Government of the Republic of Lithuania, under which arrest as disciplinary sanction may be imposed on soldiers, NCOs and officers of the National Defence Forces”.
29. Moldova considers that Article 5 must not result in the removal of “the possibility of enforcing criminal sentences in the form of non-custodial forced labour, as provided for in Article 27 of the Criminal Code, and also administrative sentences in the form of forced labour, as provided for in Article 30 of the Code of Administrative Offences.”
30. Portugal also specifies that Article 5 “will be applied subject to Articles 27 and 28 of the Military Discipline Regulations[4] which provide for the placing under arrest of members of the armed forces.”
31. Romania specifies that “Article 5 of the Convention does not exclude the application by Romania of the provisions of Article 1 of Decree No 976 of 23 October 1968[5], regulating the system of military discipline”.
32. The Russian Federation also refuses to allow paragraphs 3 and 4 of Article 5 to prevent the application of the second paragraph of point 6 of Section 2 of the Constitution and Articles 51-53 and 62 of the Disciplinary Regulations of the Armed Forces of the Russian Federation.
33. Serbia and Montenegro states that the provisions of paragraphs 1(c) and 3 of Article 5 shall be without prejudice to the application of various articles of the Law on Minor Offences of the Republic of Serbia.
34. Slovakia mentions Section 17 of Act No 76/1959[6], which provides for certain “disciplinary penitentiary measures”.
35. Finally, Ukraine states that the application of Article 5 paragraph 3 shall not contradict certain provisions of the Interim Disciplinary Statute of the Armed Forces of Ukraine.
36. Two other countries have issued reservations in respect of Article 5 for reasons other than those mentioned above. The Principality of Andorra holds that it must be applied “without prejudice to what is laid down in Article 9 paragraph 2 of the Constitution of the Principality of Andorra[7]” and Austria for its part states that it will have to be applied in conformity with the laws on administrative procedure, BGBI No 172/1950.
37. Article 6 guaranteeing the right to a fair trial has also resulted in many reservations by Contracting Parties, since in some cases states cannot respect certain procedural guarantees such as the right to publicity or the right to oral proceedings on account of laws already in force.
38. Austria, for example, states that it will apply Article 6 strictly without prejudice to Article 90 of the Federal Constitution Law.
39. Azerbaijan has also entered a reservation in respect of Article 6 which, like Article 5, must not conflict with Articles 48, 49, 50, and 56-60 of the Disciplinary Regulations of the Armed Forces adopted by the Law of the Republic of Azerbaijan No 885 of 23 September 1994.
40. Croatia states that it will not be in a position to “guarantee the right to a public hearing before the Administrative Court in cases in which it decides on the legality of individual acts of administrative authorities” on account of Article 34 paragraph 1 of the Law on Administrative Disputes.
41. For the CzechRepublic, Article 6 must be applied in the same way as Article 5, i.e. in conformity with Article 17 of Law No 76/1959.
42. Estonia indicates that it “cannot not ensure the right to a public hearing at the appellate court level (Ringkonnakohtus) as provided in Article 6 of the Convention, in so far as cases foreseen by Articles 292 and 298 of the Code on Civil Procedure (published in the Riigi Teataja [State Gazette] I 1993, 31/32, 538; 1994, 1, 5; 1995, 29, 358; 1996, 3, 57) may be decided through written procedure.”[8]
43. Finland does not guarantee the right to an oral hearing in certain proceedings before the Supreme Court, the Insurance Court and the Appellate Board for Social Assistance.
44. France indicates that Article 6, like Article 5, must not “hinder the application of the provisions governing the system of discipline in the armed forces contained in Section 27 of Act No 72-662 of 13 July 1972, determining the general legal status of military servicemen, nor of the provisions of Article 375 of the Code of Military Justice.”
45. Ireland states that it does not interpret Article 6.3.c as “requiring the provision of free legal assistance to any wider extent than is now provided in Ireland.”
46. Liechtenstein limits the application of Article 6 paragraph 1 according to principles deriving from certain national laws.
47. Malta interprets paragraph 2 of Article 6 in the sense that it “does not preclude any particular law from imposing upon any person charged under such law the burden of proving particular facts.”
48. Serbia and Montenegro states that Article 6 paragraphs 1 and 3 shall also be without prejudice to the application of the Law on Minor Offences of the Republic of Serbia; furthermore paragraph 1 shall not affect the general rule that Serbian courts do not hold public hearings in administrative disputes.
49. Slovakia has entered the same reservations for Article 6 as for Article 5.
50. Finally, Ukraine has a reservation defining the terms of application of Article 6 paragraph 3 with respect to certain articles of its Criminal Procedure Code.
51. Portugal is the only state to have issued a reservation in respect of Article 7 entitled “No punishment without law”, specifying that it will be applied “subject to Article 309 of the Constitution of the Portuguese Republic, which provides for the indictment and trial of officers and personnel of the State Police Force (PIDE-DGS).”
52. Liechtenstein is the only state to have entered reservations in respect of Article 8 on the right to respect for private and family life, which in its opinion, shall be exercised, with regard to aliens, “in accordance with the principles at present embodied in the Ordinance of 9 September 1980 (LGBI. 1980 No 66).”
53. Article 10 concerning freedom of expression is the subject of reservations by Azerbaijan and Malta. Azerbaijan states that Article 10 paragraph 1 will be interpreted and applied “in accordance with Article 14 of the Law of the Republic of Azerbaijan “on mass media” of 7 December 1999[9]”, and Malta declares that “the Constitution of Malta allows such restrictions to be imposed upon public officers, with regard to their freedom of expression, as are reasonably justified in a democratic society.”
54. Article 11, proclaiming the freedom of meeting and association, is the subject of other reservations by governments, which hold that these rights must be exercised by citizens in strict compliance with domestic legislation, in particular the country’s Constitution.
55. The Principality of Andorra, for example, states that the provisions of Article 11 “shall be applied to the extent that they are not in conflict with what is laid down in Articles 18 and 19 of the Constitution of the Principality of Andorra[10].”
56. San Marino declares that in pursuance of Articles 2 and 4 of Law No 7 of 17 February 1961 on the protection of employment and employees, “associations or trade unions must register with the law court and that such registration may be obtained provided the association includes at least six categories of employees and a minimum of 500 members”.
57. Spain has issued a reservation regarding Article 11, stating that it must not be incompatible with Articles 28 and 127 of the Spanish Constitution.
58. Finally, Serbia and Montenegro has a reservation stating that Article 13 shall not apply in relation to local remedies within the jurisdiction of the Court of Serbia and Montenegro, until that court becomes operational under the relevant provisions of the state union constitution.
59. Several states have also issued reservations in respect of Article 15, whichconcerns derogation in time of emergency. For the Principality of Andorra, this Article shall be applied “within the limits provided for in Article 42 of the Constitution of the Principality of Andorra”, and for France, it can be applied within the framework laid down by Article 16 of the Constitution.
b. The different protocols
60. Few reservations have been made to the technical, procedural protocols. Some of the protocols containing new rights, however, are the subject of numerous reservations.
61. Concerning Protocol No 1 in particular, many states have included in their instrument of ratification reservations that are still in force. These reservations principally concern Article 1 guaranteeing the protection of property and Article 2 concerning the right to education. The objection most often consists in the state’s refusing to finance religious or philosophical education.
62. In the case of Protocol No 4 reservations relate particularly to Article 3 prohibiting the expulsion of nationals and Article 4 prohibiting the collective expulsion of aliens. Cyprus states, for example, that it refuses to apply the provisions of Article 4 to aliens unlawfully present.
63. In the case of Protocol No 7, the states remain cautious concerning Article 2, which guarantees the right to have convictions in criminal cases reviewed. Denmark, France, Germany and Italy therefore ensure that the provisions of the protocol remain in conformity with their domestic legislation. Furthermore, certain countries are careful to clarify the application of Article 5 on equality between spouses, as concerns the handing down of the patronymic.
v. The damaging effects of prolonging reservations
64. Reservations have the advantage of allowing treaties to be executed with greater flexibility for those states which meet with difficulties over certain clauses. They thus guarantee a wider participation by states.
65. However, the repeated and prolonged use of reservations can be detrimental to the treaty: according to Recommendation 1223 (1993) on reservations made by member states to Council of Europe conventions, “the use of reservations also has major drawbacks” because “the unity and coherence of the convention may be impaired”. The unity of a convention as a coherent entity can be threatened by reservations which alter its logic by dividing up its clauses to suit states.
66. Furthermore, the use of reservations can be synonymous with inequalities between states, as some of them will be obliged to respect the Convention in full, whereas others benefit from derogations.
67. As a result, the Assembly asked in its Recommendation that the validity of a reservation be limited to a maximum period of ten years and that it lapse if not expressly renewed by the state concerned.
68. Increasingly, Council of Europe practice is to limit or simply prohibit the use of reservations. For example, Article 17[11] of the Civil Law Convention on Corruption does not allow states to make reservations. This is also the case for Article 15 of the Convention on the Legal Protection of Services based on, or consisting of, Conditional Access, Article 10 of the Convention on Information and Legal Co-operation concerning “Information Society Services”, Article 24 of the European Convention for the Protection of the Audiovisual Heritage and Article 25 of the Convention on Contact concerning Children. As concerns the European Convention on Human Rights, Protocols Nos 6 and 13 do not allow reservations.
vi. Derogations in accordance with Article 15 of the Convention
69. In accordance with Article 15, “In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law”. This provision allows “No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7”; furthermore, “Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures cease to operate and the provisions of the Convention are again being fully executed.”
70. The only country to have issued a derogation currently in force in respect of Article 15 is the United Kingdom concerning Article 5(1)(f) of the Convention. It states that it has decided “to avail itself of the right of derogation conferred by Article 15(1) of the Convention, and will continue to do so until further notice” so that it can freely apply the Anti-terrorism, Crime and Security Act 2001. Whilst on its face this derogation may appear potentially indefinite, the underlying Act is itself subject to a “sunset clause” limiting its validity to five years. In addition, there is a mechanism for wide-ranging review by a cross-party committee of Privy Councillors drawn from both Houses of Parliament and the judiciary. The committee’s terms of reference stipulate that should it “specify” any provisions of the Act, they subsequently cease to have effect unless parliament, within six months, decides otherwise.
71. The Review Committee’s report of 18 December 2003 recommends replacement of the existing provisions on detention so as inter alia to avoid the need for a derogation. Furthermore it “specifies” the entire act, thus necessitating full parliamentary debate if the act is not to become ineffective. The Rapporteur congratulates the Review Committee for thus having ensured that the continuing necessity of the United Kingdom’s derogation is scrutinised by parliament.
vii. State practice on the withdrawal of reservations and derogations
72. Whilst there may be an undesirable number of reservations and, to a lesser extent, derogations currently in force – some of them of very long standing – nevertheless many states have withdrawn reservations or derogations when domestic circumstances allowed, as is the intended practice.
73. On 10 May 1990, when ratifying the Convention, Finland lodged a reservation with respect to Article 6, stating that it was intended to be “for the time being”. This has been progressively (although so far only partially) withdrawn, by instruments lodged on 20 December 1996, 30 April 1998, 1 April 1999 and 16 May 2001.
74. Germany lodged a reservation to Article 7 when ratifying on 5 December 1952. This reservation was withdrawn on 5 October 2001.
75. On 5 November 1992Hungary lodged a reservation to Article 6, stated as “for the time being”. This reservation was withdrawn on 1 March 2001.
76. Liechtenstein ratified the Convention on 8 September 1982, lodging inter alia a reservation to Articles 2 and two to Article 8. The former and one of the latter were withdrawn on 26 April 1991; the remaining one was withdrawn on 18 February 1999.
77. Norway ratified on 15 January 1952 with a reservation to Article 9, which was withdrawn on 4 December 1956.
78. Portugal ratified on 9 November 1978 with reservations inter alia to Articles 4, 10 and 11: the reservations to these three Articles were withdrawn on 11 May 1987.
79. Spain, when ratifying on 4 October 1979, made reservations to Articles 5 and 6 which were subsequently withdrawn on 28 May 1986.
80. Switzerland lodged reservations to Articles 5 and 6 when ratifying on 28 November 1974. The former was withdrawn on 1 January 1982, the latter on 29 August 2000. (An interpretive declaration to Article 6 was found by the European Court of Human Rights in fact to be a reservation which did not meet the requirements of Article 64 and thus to be invalid.)
81. France made a declaration on the compatibility of domestic law with Article 10 on 3 May 1974. This declaration was withdrawn on 29 March 1988.
82. Albania gave notification of derogations resulting from a state of emergency on 10 March 1997. These were withdrawn on 24 July 1997.
83. Ireland gave notice of derogations necessary due to a state of emergency on 22 July 1957; these were withdrawn on 9 March 1962. Further derogations were made on 21 October 1976, and subsequently withdrawn on 16 October 1977.
84. On 6 August 1990Turkey gave notice of derogations to Articles 5, 6, 8, 10, 11 and 13. On 5 May 1992 these were limited to Article 5, and withdrawn fully on 29 January 2002.
85. The United Kingdom gave notice on 23 March 1989 of a derogation to Article 5, which was withdrawn on 26 February 2001 (although to be replaced by new provisions).
viii. The role of the Secretary General of the Council of Europe as depository of the Convention
86. The Secretary General’s role as depository of the Convention is governed by its Article 59 in conjunction with the provisions of the Vienna Convention on the Law of Treaties. According to Article 59, the Secretary General’s role is essentially passive, receiving ratifications and informing all member States of their receipt. The Vienna Convention indicates that the depository must ensure that relevant provisions on reservations are respected, whilst, however, not being entitled to decide either on the admissibility or on the legal effects of reservations or declarations. Consistent with this was the decision of the Ministers’ Deputies of February 1976, concerning a purported reservation by Turkey to its ratification of various treaties, that the Secretary General should proceed with registration of the ratifications, “it being understood that the registration of reservations has no effect on their validity.”
87. Informally, however, the Secretary General, through the services of the Treaty Office made available during negotiations in particular prior to ratification, has been able to act to ensure that any reservations or declarations intended by states have been brought into conformity with the relevant requirements. As in the Turkish case, if a reservation or declaration is entered despite the concerns of the Treaty Office, it is nevertheless registered.
88. Whilst, of course, the Convention has now been ratified by almost all European states, the Rapporteur congratulates the Secretary General and the Treaty Office on their past achievements in this respect, and encourages them in their future efforts to ensure the propriety of States’ reservations or declarations.
89. The Committee of Legal Advisers on Public International Law (CAHDI), acting as the European Observatory of Reservations to International Treaties, periodically follows outstanding (i.e. within the time-limits for objection by other contracting parties) reservations and declarations to international treaties. (The CAHDI does, however, also consider ‘non-outstanding’ reservations and declarations to counter-terrorism treaties.) On 18-19 September 2003 the CAHDI considered a list of reservations and declarations which did not, however, address the majority of the cases listed above, since they were no longer ‘outstanding’.
90. The Rapporteur welcomes the work of the CAHDI, and in particular its role as Observatory serving to scrutinise outstanding reservations and declarations to the Convention. At the same time, he encourages the CAHDI to take all possible measures to assist their full and prompt withdrawal, including by initiating the practice of considering also non-outstanding reservations and declarations to the Convention.
ix. The role of the European Court of Human Rights
91. The United Nations Human Rights Committee, in its General Comment No 24, has noted that international human rights treaties differ from other treaties in that they are
“not a web of inter-State exchanges of mutual obligations. They concern the endowment of individuals with rights… States have often not seen any legal interest in or need to object to reservations. The absence of protest by States cannot imply that a reservation is either compatible or incompatible with the object and purpose of the [treaty in question].”
92. Consistent with its judicial function in supervising application of the Convention (cf. Article 19), therefore, the Strasbourg Court has developed important jurisprudence dealing with purported reservations, notably in the cases of Belilos v. Switzerland and Loizidou v. Turkey. The Court has stated its fundamental role in assessing the admissibility of reservations and declarations, of which it is not relieved even by the silence of the depository or the other contracting states. Should a reservation or declaration be found by the Court to be inadmissible, it is considered to be severed from the state’s instrument of ratification of the Convention. Ratification then operates as if the inadmissible statement had not been made, with the State’s consent to be bound by the Convention as a whole unaffected.
93. The Court has also established its jurisdiction over derogations, stating that “it is for the Court to determine whether the conditions laid down in Article 15 for the exercise of the exceptional right of derogation have been fulfilled” (Lawless v. Ireland). A state acting in pursuit of a purported derogation which fails to fulfil the conditions of Article 15 may be in breach of its obligations to the extent that the derogation is thus unlawful (Aksoy v. Turkey).
94. The Rapporteur is strongly supportive of the Court’s approach and encourages it to continue to develop these important mechanisms for ensuring full and universal protection of human rights throughout Europe. The Rapporteur also urges those states whose reservations or derogations have in individual cases been found inadmissible by the Court to withdraw them without delay and not to continue to rely upon them in response to subsequent complaints.
APPENDIX
Ratification of protocols and withdrawal of reservations and derogations made in respect of the European Convention on Human Rights
Table of non-ratifications, reservations and
declarations – Convention and additional protocols
|
|
Albania |
Andorra |
Armenia |
Austria |
Azerbaijan |
Belgium |
BiH |
Bulgaria |
Croatia |
Cyprus |
CzechRepublic |
Denmark |
Estonia |
|
ECHR |
|
R (5, 11, 15), D |
R (5) |
R (5, 6) |
R (5, 6, 10), D |
|
|
|
R (6) |
|
R (5, 6) |
|
R (6) |
|
P1 |
R (3) |
X |
|
R (1) |
D |
|
|
R (1), D |
|
|
|
|
R (1), D |
|
P4 |
|
X |
|
R (3) |
D |
|
|
|
|
D |
|
|
|
|
P6 |
|
|
|
|
D |
|
|
|
|
|
|
|
|
|
P7 |
|
X |
|
D |
D |
X |
|
|
|
|
|
R (2), D |
|
|
P12 |
Xs |
X |
X |
Xs |
Xs |
Xs |
|
X |
|
|
Xs |
X |
Xs |
|
P13 |
Xs |
|
X |
|
X |
|
|
|
|
|
Xs |
D |
|
|
|
Finland |
France |
Georgia |
Germany |
Greece |
Hungary |
Iceland |
Ireland |
Italy |
Latvia |
Liechtenstein |
Lithuania |
Luxem-bourg |
|
ECHR |
R (6) |
R (5, 6, 15) , D |
|
|
|
|
|
R (6) |
|
|
R (6, 8) |
R (5) |
|
|
P1 |
|
D |
R (1, 2), D |
D |
|
|
|
D |
|
R (1) |
|
|
R (1) |
|
P4 |
|
D |
|
D |
X |
|
|
D |
|
|
X |
|
|
|
P6 |
|
|
|
D |
|
|
|
|
|
|
|
|
|
|
P7 |
|
R (2, 3, 4, 5, 6), D |
|
Xs, D |
|
|
|
|
D |
|
X |
|
R (5) |
|
P12 |
Xs |
X |
D |
Xs |
Xs |
Xs |
Xs |
Xs |
Xs |
Xs |
Xs |
X |
Xs |
|
P13 |
Xs |
Xs |
D |
Xs |
Xs |
|
Xs |
|
Xs |
Xs |
|
|
Xs |
|
|
Malta |
Moldova |
Netherlands |
Norway |
Poland |
Portugal |
Romania |
Russia |
San Marino |
Serbia and Montenegro |
Slovakia |
|
ECHR |
R (2, 6, 10), D |
R (5) , D |
|
|
|
R (5, 7) |
R (5) |
R (5) |
R (11), D |
R (5, 6, 13) |
R (5, 6) |
|
P1 |
D |
D |
D |
|
|
|
D |
|
R (1) |
|
|
|
P4 |
|
|
D |
|
|
|
|
|
|
|
|
|
P6 |
|
|
D |
|
|
|
|
Xs |
|
|
|
|
P7 |
|
|
Xs, D |
|
|
Xs |
|
|
D |
|
|
|
P12 |
X |
Xs |
Xs |
Xs |
X |
Xs |
Xs |
Xs |
|
|
Xs |
|
P13 |
|
Xs |
Xs |
Xs |
Xs |
|
|
X |
|
|
Xs |
|
|
Slovenia |
Spain |
Sweden |
Switzerland |
“the former Yugoslav Republic of Macedonia” |
Turkey |
Ukraine |
United Kingdom |
Tot. X (treaty) |
Tot. R (all articles) |
Tot. D (treaty) |
Notes |
|
ECHR |
|
R (11), D |
|
|
|
|
R (5, 6) |
|
- |
38 |
7 |
|
|
P1 |
|
R (1) |
|
Xs |
R (2) |
R (2) |
|
R (2), D |
2 |
13 |
12 |
|
|
P4 |
|
Xs |
|
X |
|
Xs |
|
Xs |
7 |
1 |
6 |
|
|
P6 |
|
|
|
D |
|
|
|
|
1 |
- |
4 |
|
|
P7 |
|
Xs |
D |
R (1, 5) |
|
Xs |
|
X |
9 |
9 |
9 |
|
|
P12 |
Xs |
X |
X |
X |
Xs |
Xs |
Xs |
X |
39 |
- |
1 |
Not in force |
|
P13 |
|
Xs |
|
|
Xs |
X |
|
D |
21 |
- |
3 |
|
KEY:
X = not ratified
Xs = signed but not ratified
R = reservations to articles numbered in brackets
D = declaration
Reporting committee: Committee on Legal Affairs and Human Rights
Reference to committee: Doc 9669, Reference No 2800 of 31 March 2003
Draft resolution and draft recommendation
adopted unanimously by the Committee on
15 March 2004
Members of the Committee: Mr Lintner (Chairperson), Mr Marty, Mr Jaskiernia, Mr Jurgens (Vice-Chairpersons), Mrs Ahlqvist, Mr Ak�am, Mr Alibeyli, Mr Arabadjiev, Mrs Arifi, Mr Ates, Mrs Azevedo, Mr Barquero V�zquez, Mr Bartumeu Cassany, Mrs Bemelmans-Videc, Mr Berisha, Mr Bindig, Mr Bruce, Mrs Christmas-M�ller, Mr Cilevics, Mr Coifan (alternate: Mr Chiliman), Mr Contestabile, Mr Davis, Mr Dimas, Mr Engeset, Mrs Err, Mr Fedorov, Mr Fico, Mr Frunda, Mr Galchenko, Mr Gedei (alternate: Mr Tabajdi), Mr Goris, Mr Guardans, Mr G�nd�z, Mrs Hajiyeva, Mrs Hakl, Mr Holovaty, Mr Ionnadis, Mr Ivanov, Mr Jurica (alternate: Mr Letica), Mr Kalezic (alternate: Mr Micunovic), Mr Kaufmann, Mr Kelber, Mr Kelemen, Mr Kroll, Mr Kroupa, Mr Kucheida, Mrs Leutheusser-Schnarrenberger, Mr Manzella, Mr Martins, Mr Masi, Mr Masson, Mr McNamara, Mr Monfils, Mr Nachbar, Mr Olteanu, Mrs Ormonde, Mrs Pasternak, Mr Pehrson, Mr Pellicini, Mr Pentchev, Mrs P�tursd�ttir, Mr Piscitello, Mr Poroshenko, Mrs Postoica, Mr Pourgourides, Mr Prica, Mr Pullicino Orlando, Mr Raguz, Mr Ransdorf, Mr Rochebloine, Mr Rustamyan, Mr Sol� Tura, Mr Spindelegger, Mr Stankevic, Mr Symonenko, Mr Takkula, Mrs Tevdoradze, Mr Wilkinson (alternate: Mr Malins), Mrs Wohlwend, Mr Zavgayev
N.B. The names of those members who were present at the meeting are printed in italics.
Secretaries to the Committee: Ms Coin, Mr Schirmer, Mr Cupina, Mr Milner
[1] Section 238: “Cases of actual necessity of lawful defence shall include the following:
a. where the homicide or bodily harm is committed in the act of repelling, during the night-time, the scaling or breaking of enclosures, walls or the entrance doors of any house or inhabited apartment, or of the appurtenances thereof having a direct or indirect communication with such a house or apartment;
b. where the homicide or bodily harm is committed in the act of defence against any person committing theft or plunder, with violence, or attempting to carry out such theft or plunder.
c. where the homicide or bodily harm is imposed by the actual necessity of the defence of one’s own chastity or of the chastity of another person.”
[2] 48. Soldiers and sailors:
... d. can be arrested up to 10 days in “hauptvakht” (military prison).
49. Temporary service ensigns:
… g. can be arrested up to 10 days in “hauptvakht” (military prison).
50. Outer-limit service ensigns:
… g. can be arrested up to 10 days in “hauptvakht” (military prison).
56. Battalion (4th degree naval) commander has the power:
… g. to arrest soldiers, sailors and ensigns up to 3 days.
57. Company (3rd degree naval) commander has the power:
… g. to arrest soldiers, sailors and ensigns up to 5 days.
58. Regiment (brigade) commander has the power:
… g. to arrest soldiers, sailors and ensigns up to 7 days.
59. Division, special brigade (naval brigade) commanders have the additional powers, other than those given to the Regiment (brigade) commanders:
… g. to arrest soldiers, sailors and ensigns up to 10 days.
60. Corps commanders, commanders of any type of army, of the different types of armed forces, as well as deputies of Defence Minister have the power to wholly impose the disciplinary penalties prescribed in the present Regulations in respect of soldiers, sailors and ensigns under their charge.
[3] Section 17
1. Disciplinary sanctions shall comprise: a reprimand, penalties for petty officers, custodial penalties, demotion by one rank and in the case of non-commissioned officers, reduction to the ranks.
2. Disciplinary custodial penalties shall comprise: confinement after duty, light imprisonment and house arrests.
3. The maximum duration of a disciplinary custodial penalty shall be 21 days.
[4] Article 27
1. Arrests consist of the detention of the offender in a building intended for the purpose, in an appropriate place, barracks or military establishment, in suitable quarters on board ship or, failing these, in a place determined by the competent authority.
2. Between the reveille and sundown, during the period of detention, the members of the armed forces can perform the duties assigned to them.
Article 28
Close arrests consist of the detention of the offender in a building intended for the purpose.
[5] “For breaches of military discipline, provided for in the military regulations, the commanding officers and commanders-in-chief may apply to servicemen the disciplinary sanction of arrest for up to fifteen days”.
[6] Section 17
1. Disciplinary sanctions shall comprise: a reprimand, penalties for petty offences, custodial penalties, demotion by one rank, and in the case of non-commissioned officers, reduction to the ranks.
2. Disciplinary custodial penalties shall comprise: confinement after duty, light imprisonment and house arrest.
3. The maximum duration of a disciplinary custodial penalty shall be 21 days.
[7] Police custody shall take no longer than the time needed to carry out the enquiries in relation to the clarification of the case and in all cases the detained shall be brought before the judge within 48 hours.
[8] Article 292 – Deciding a case based solely on an application
(1)The Court shall decide on an appeal or special application without further proceedings, if it unanimously finds that:
1. the application is manifestly ill-founded or the person who filed the application has no right to appeal. In this case, the court shall refuse the application;
2. while the case was [being] heard in the Court of First Instance, the procedural norms were violated which, in accordance with the law, results in the revocation of the decision or order (Article 318) and which the Court of Appeal cannot leave unaddressed. In that case, the decision or order shall be disaffirmed and the case shall be referred back to the Court of First Instance for a new trial;
3. the copy of the decision of the Court of Appeal shall be sent to the parties involved within five days from the day the decision was signed.
(2) The Court of Appeal does not have the right to decide upon an appeal or a special application against the other party, if the Court of First Instance or the Court of Appeal has not given the other party an opportunity to respond to the application.
Article 298 – Settling a case through written procedure
The Court may settle the case through a written procedure without public hearing:
1. if the respondent to the appeal agrees with it;
2. if the application claims the violation of procedural norms or the incorrect application of a substantive norm in the Court of First Instance;
3. if a special application has been filed, and the Court considers [a] public hearing unnecessary.
[9] Article 14
… The establishment of mass media by legal persons and citizens of foreign states in the territory of the Republic of Azerbaijan shall be regulated by interstate treaties concluded by the Republic of Azerbaijan (“legal person of a foreign state” means a legal person of which the charter fund, or more than 30% of the shares, are owned by legal persons or citizens of foreign states, or a legal person of which one third of founders are legal person or citizens of foreign states).
[10] Article 18 of the Constitution states:
“The right to form and maintain employers’, professional and trade-union associations shall be recognised. Without prejudice to their links with international institutions, these organisations shall operate within the limits of Andorra, have their own autonomy without any organic dependence on foreign bodies and shall function democratically”.
Article 19 of the Constitution states:
“Workers and employers have the right to defend their own economic and social interests. A law shall regulate the conditions to exercise this right in order to guarantee the functioning of the services essential to the community”.
[11] “No reservation may be made in respect of any provision of this Convention.”