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Parliamentary Assembly Assembl�e parlementaire |
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Draft Protocol No 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention[1]
Doc. 10147
23 April 2004
Report
Committee on Legal Affairs and Human Rights
Rapporteur: Mr Kevin McNamara, United Kingdom, Socialist Group
Summary
The Committee of Ministers has invited the Parliamentary Assembly to state its opinion on the Draft Protocol No 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention.
The Assembly should support the proposals which ought to enable the Court to confront the large number of individual applications which it receives.
However, the right of individual petition, which is the raison d'�tre of the Convention, should not be restricted.
The lists of candidates to the Court presented by the governments of member States should contain candidates of both sexes.
The Council of Europe Commissioner for Human Rights should have the possibility of bringing before the Court cases of alleged mass violations of human rights.
I. Draft opinion [Link to the adopted text]
1. The Parliamentary Assembly attaches the utmost importance to the proper functioning of the European Court of Human Rights, which is still the only international tribunal accessible to persons within the territory of the High Contracting Parties to the Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter "the Convention"). It therefore welcomes any changes liable to facilitate or improve such proper functioning, subject to guaranteeing the right of individual petition, which is its raison d’�tre.
2. Over the last few years, moreover, it has adopted a number of recommendations aimed at improving the Convention (Recommendation 1649 (2004) on candidates for the European Court of Human Rights; Recommendation 1535 (2001) on structures, procedures and means of the European Court of Human Rights; Recommendation 1429 (1999) on national procedures for nominating candidates for election to the European Court of Human Rights; Recommendation 1295 (1996) on the procedure for examining candidatures for the election of judges to the ECHR).
3. It would mention in particular its Recommendation 1649 (2004) on candidates to the European Court of Human Rights, which proposed including an explicit provision on gender balance in Article 22 of the Convention and requested that as far as possible none of the candidates put forward should need to be replaced by an ad hoc judge.
4. It would also point to its Recommendation 1606 (2003) on areas where the European Court of Human Rights cannot be implemented, in which it recommended that the Committee of Ministers create the post of public prosecutor at the European Court of Human Rights responsible for bringing cases of mass violations of human rights before the Court and that it entrust this task to the Council of Europe Commissioner for Human Rights.
5. Lastly, in its Recommendation 1477 (2000) on execution of judgments of the European Court of Human Rights it recommended amending the Convention to introduce a system of "astreintes" (fines for a delay in the performance of a legal obligation) to be imposed on states that persistently fail to execute a Court judgment but the Assembly welcomes the proposals to enable the Committee of Ministers to refer back judgments to the Court for further explanation or indication of how the judgment may be executed.
6. The Assembly regrets that none of the aforementioned recommendations have to date been accepted by the Committee of Ministers.
7. In connection with draft Protocol No 14, as regards the possibility of appointing additional judges, it considers that this would create inequalities between countries and questions the expediency of such a measure. Given that the terms of office of such additional judges are not specified, this omission at least should be made good.
8. Where judges’ terms of office are concerned, the Assembly wholeheartedly backs the proposal for a non-renewable nine-year term, which is the duration it had itself proposed.
9. In connection, however, with the age at which judges should leave office, i.e. 70 years, the current wording of Article 3 of draft Protocol No 14 maintains an apparent contradiction between paragraphs 2 and 3 of Article 23 of the Convention, implying that they can remain in office beyond the age of 70 and hear new cases.
10. In connection with the various formations of the Court, the Assembly welcomes the proposals as an improvement on the present practice regarding the category of persons "chosen by the President of the Court from a list submitted in advance" by the High Contracting Party where the judge sitting in respect of this Party is unavoidably detained. But the Assembly still considers such ad hoc judges as lacking legitimacy unless approved by the Assembly.
11. The Assembly cannot accept the proposal to add a new admissibility criterion to Article 35 of the Convention (individual applications) because it is vague, subjective and liable to do the applicant a serious injustice and would exclude only 1.6% of existing cases.
12. However, should the Committee of Ministers insist on adding a new admissibility criterion, then, in keeping with the spirit of the Convention and the Assembly's desire to encourage member states to incorporate the Convention and its Protocols into their domestic legislation, it would recommend that the Court be empowered to declare inadmissible an application if it is satisfied that the application has been duly examined by a domestic tribunal in accordance with the provisions of the Convention and the protocols thereto.
13. Whilst welcoming the third-party intervention provided for in Article 14 of draft Protocol No 14 stipulating that the Council of Europe Commissioner for Human Rights can submit written comments and take part in hearings, the Assembly, however, considers this insufficient to cope with cases of alleged mass violations of human rights and therefore proposes that the Council of Europe Commissioner for Human Rights may bring before the Court cases of alleged mass violations of human rights.
14. Consequently, the Assembly recommends that the Committee of Ministers make the following amendments, which it deems essential, to draft Protocol No 14:
i. in Article 1: add the following words at the end of paragraph 3 of Article 20: "as well as the length of their term of office";
ii. in Article 2: add the following words to paragraph 1 of Article 22: "containing at least one candidature from a person of each gender" after the words "Contracting Party";
iii. in Article 3: merge paragraphs 2 and 3 of Article 23, to read as follows: "The terms of office of judges shall expire when they reach the age of 70. They shall, however, continue to deal with such cases as they already have under consideration.";
iv. in Article 7: in paragraph 5 of Article 26, after the words "by that party", add the words: ", and after having consulted the Parliamentary Assembly,";
v. in Article 13: replace paragraph 3 of Article 35 by the following text:
"The Court shall declare inadmissible any individual application submitted under Article 34
a. if it considers the application to be incompatible with the provisions of the Convention or the Protocols thereto;
b. if it considers that respect for human rights as defined in the Convention and the Protocols thereto does not require the examination of the application;
c. if it considers that the application is manifestly ill-founded or an abuse of the right of application; or
d. if it is satisfied that the application has been duly examined by a domestic tribunal in accordance with the provisions of the Convention and the protocols thereto.";
vi. in Article 14: add a paragraph 4 to Article 36 to read as follows: "The Council of Europe Commissioner for Human Rights may bring before the Court cases of alleged mass violations of human rights.";
vii. in Article 17: add the following sentence to the end of paragraph 4 of Article 46: "The applicant shall have the same possibility.".
15. The Assembly stresses that the proposals for reform of the control system of the Convention will only be effective if the Committee of Ministers provides for the additional budgetary resources required for their implementation.
16. The Assembly is appreciative of the role which it, its Committee on Legal Affairs and Human Rights and individual members have been able to play in the dialogue with the Steering Committee for Human Rights on the reform of the control system of the Convention, but it nevertheless considers that it is hardly compatible with the importance of the proposals to give the Assembly only two weeks to prepare its Opinion on draft Protocol No 14.
17. Lastly, the Assembly urges the Committee of Ministers to submit requests for Opinions on draft treaties to the Parliamentary Assembly at least three months before the meeting of the Committee of Ministers at which the text is to be examined and to take account of this three-month period in the deadlines assigned to the Steering Committees responsible for their preparation.
II. Explanatory memorandum
by Mr McNamara, Rapporteur
Introduction
1. The Assembly has been invited by the Committee of Ministers to state its opinion on draft Protocol No 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") amending the control system of the Convention, adopted by the Steering Committee for Human Rights on 7 April 2004. The Assembly nevertheless regrets that the timetabling was such as to allow it only two weeks to adopt an Opinion on draft Protocol No 14. This is not an acceptable procedure, and indicates rather an off-handed attitude on the Committee of Ministers’ part towards the Assembly.
2. The Assembly attaches the utmost importance to the proper functioning of the European Court of Human Rights, as is confirmed by the Recommendations adopted over the last few years, indeed months, proposing amendments to the Convention. It therefore welcomes proposals intended to enable the Court to discharge its absolutely unique function, but considers that access to the Court for all citizens in the territory of the High Contracting Parties must be kept intact.
3. The recommendations of the last few years or months directed at the Committee of Ministers are Recommendation 1649 (2004) on the election of judges to the European Court of Human Rights calling for the explicit inclusion of a provision on gender balance in Article 22 of the Convention and asking that as far as possible none of the candidates nominated should be replaced by an ad hoc judge, Recommendation 1606 (2003) on areas where the European Convention on Human Rights cannot be implemented, in which the Assembly recommended that the Committee of Ministers "create the post of public prosecutor at the European Court of Human Rights, who would have the task of bringing actions concerning violations of human rights before the Court" and "entrust this task .... to the ... Commissioner for Human Rights", and lastly Recommendation 1477 (2000) on execution of judgments of the European Court of Human Rights recommending amendment of the Convention "to introduce a system of "astreintes" (daily fines for a delay in the performance of a legal obligation) to be imposed on states that persistently fail to execute a Court judgment".
4. Yet the draft Protocol No 14 embodies none of the above recommendations.
5. The Committee on Legal Affairs and Human Rights was moreover prompted to make comments on the draft Protocol No 14 in preparation, and in so doing it drew attention not only to the foregoing recommendations but also to the question of ad hoc judges who according to the Rules of Court are appointed by the High Contracting Parties and are vested with no legitimacy whatsoever by the Parliamentary Assembly.
6. In the matter of conditions of admissibility too, it objected to the addition of a new admissibility criterion. However, if this were really considered necessary, it pledged its support for the Court's proposal.
7. Again, none of the comments was taken on board.
8. The Assembly should prefix all the foregoing reservations to its adoption of the Opinion below.
Article 1
Re Article 20: Number of judges
9. This Article permits the appointment of additional judges by the Committee of Ministers at the Court’s request. They would be elected according to the arrangements specified in Article 22 for the election of judges.
10. The expediency of increasing the number of judges is arguable. The explanatory report itself acknowledges that at the time it was drawn up, the need to increase their number in the foreseeable future was not felt as pressing, but it was considered desirable, should an increase subsequently prove necessary, to avoid the weighty procedure of an amending protocol.
11. This will create an imbalance between countries, some having two or more judges. Nothing is said about the number of additional judges allowable for a State. Nothing either is said about the length of their terms of office. This at least should be addressed in the Convention itself.
12. The Assembly should therefore express its reservations about this proposal.
Article 2
Re Article 22: Election of judges
13. This article proposes the deletion of paragraph 2 which has become redundant as a result of the proposed changes to Article 23.
14. The Assembly refers to its Recommendation 1649 (2004) on candidates to the European Court of Human Rights, particularly the request in the matter of gender balance to include the words "contains candidates of both sexes".
15. The explanatory report says that such a request might have interfered with the primary consideration to be given to the merits of potential candidates.
16. This line of reasoning is completely unacceptable and premises that in certain cases there would be no qualified women candidates.
17. There are women jurists in all Council of Europe member countries, and application of the principle of gender balance cannot be postponed on the pretext of awaiting the day when women hold the highest public offices.
Article 3
Re Article 23: Terms of office and dismissal
18. It is proposed firstly that judges be elected for a term of nine years and barred from re-election, and secondly that the dismissal procedure laid down at present in a separate Article 24 be added as the second paragraph.
19. This meets the wish of the Parliamentary Assembly as expressed in Recommendation 1649 (2004) in which a single term was considered apt to enhance judges’ independence and impartiality.
20. Transitional provisions for extending up to a total of nine years the term of office of judges serving their first term at the time when the Protocol comes into force are contained in Article 22.
21. This is the sole recommendation of the Assembly to have been taken up.
22. There nonetheless remains an obvious contradiction between paragraphs 2 and 3 of Article 23, which ought to be cleared up, for instance, by merging paragraphs 2 and 3.
Article 5
Re Article 25: Registry and rapporteurs
23. This article provides that when sitting as a single-judge formation, the Court shall be assisted by rapporteurs who shall function under the authority of the President of the Court. They shall form part of the Court’s registry.
24. This proposition is tantamount to increasing the number of officials who work for the Court.
Article 6
Re Article 26: Plenary Court
25. This article reflects the new functions assigned to the Plenary Court.
Article 7
Re Article 26: Single-judge formations, committees, Chambers and Grand Chamber
26. This article adds the single-judge category to the various formations of the Court, ruling out the possibility of a single judge’s entertaining an application against the High Contracting Party in respect of which the judge was elected, and of two judges elected in respect of the same High Contracting Party both sitting in one of the formations of the Court.
27. Paragraph 4 of this article provides for a judge’s replacement by a person chosen by the President of the Court from a list submitted in advance by the High Contracting Party.
28. These replacements are actually former ad hoc judges who are no longer designated as judges but are called upon to exercise the functions of a judge.
29. This new provision represents an improvement on the existing procedure and is welcomed by the Assembly on that account. However, it does not mention a procedure under which the person acquires the legitimacy of the Parliamentary Assembly’s approval.
30. In order to cut red tape, this "legitimisation" could be applied by means of a "negative procedure" meaning that when a list of ad hoc judges is submitted by a country to the President of the Court, the list should be transmitted to the Secretary General of the Council of Europe to be put to the Parliamentary Assembly. If no objection to the names on the list is raised within a reasonable time, the names would be automatically presumed acceptable to the Parliamentary Assembly.
Article 8
Re Article 27: Competence of single judges
31. The competence of the single judge is limited to taking decisions of inadmissibility or decisions to strike the case out of the list "where such a decision can be taken without further examination".
32. This amendment should allow the handling of a larger number of cases, and a saving of time.
Article 9
Re Article 28: Competence of committees
33. This article extends the competence of the committees by empowering them to take a joint decision on both admissibility and merits "if the underlying question in the case, concerning the interpretation or the application of the Convention or the protocols thereto, is already the subject of well-established case-law of the Court".
34. This would address the problem of the repetitive cases which make up a high proportion of the Court’s business and would thus allow time to be saved.
35. Queries can be raised about the possibility provided in paragraph 3 of this article to invite the judge elected in respect of the High Contracting Party if "that Party has contested the application of the procedure under paragraph 1.b. " (combined decision on admissibility and merits).
36. This perhaps gives too prominent a place to the High Contracting Party.
Article 10
Re Article 29: Decisions by Chambers on admissibility and merits
37. This article is conducive to combined decision-making on admissibility and merits.
38. It should be acceptable to the Assembly.
Article 11
Re Article 31: Powers of the Grand Chamber
39. This article adds infringement proceedings (prescribed in Article 46 paragraph 4 – see Article 17 below) to the functions vested in the Grand Chamber.
Article 12
Re Article 32: Jurisdiction of the Court
40. This article adds the new remedies prescribed in Article 46 below.
Article 13
Re Article 35: Admissibility criteria
41. The Protocol proposes adding a new admissibility criterion for individual petitions, which will be declared inadmissible "if the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the protocols thereto requires an examination of the application on the merits".
42. The first question to consider relates to the expediency or inexpediency of adding a further admissibility criterion. The NGOs generally, in a Resolution of 29 January 2004, and Amnesty International especially, strongly object to any change in the admissibility criteria. They hold that the reference to "a significant disadvantage" is vague, too subjective, and liable to result in the applicant’s being subjected to a grave injustice. It is thought to impinge on the very essence of the Convention, namely the right of individual petition for every citizen in the territory of a member state.
43. The proposed changes for admissibility criteria if accepted will, the Assembly believes, change the concept of the Court. It will cease being a "Court of a Subjective Right" and become a "Court of Damages".
44. The new criteria might be applied to 1.6% of all cases dealt with by the Court and would therefore have little impact on the workload of the Court whilst dramatically affecting the right of individual petition. If there has to be further inadmissibility criteria it should be firmly based on the Convention and its protocols. Therefore if an additional criterion is necessary it should read "and the Court shall declare inadmissible any individual application … if it is satisfied that the application has been duly examined by a domestic tribunal in accordance with the provisions of the Convention and the protocols thereto ".
45. That should be the Assembly’s opinion.
Article 14
Re Article 36: Third party intervention
46. It is proposed to add a paragraph to Article 36 (third party intervention) stipulating that "In all cases before a Chamber or the Grand Chamber, the Council of Europe Commissioner for Human Rights may submit written comments and take part in hearings".
47. The Assembly has already expressed its view on the empowering of the Commissioner for Human Rights to intervene before the Court in its Recommendation 1606 (2003) on areas where the European Convention on Human Rights cannot be implemented. It recommended that the Committee of Ministers "create the post of public prosecutor at the European Court of Human Rights, who would have the task of bringing actions concerning violations of human rights before the Court, and that this task be entrusted to the Commissioner for Human Rights".
48. The Committee reiterates its proposal. It is not convinced by the argument that granting such a right to the Commissioner for Human Rights might damage his relations with the governments of the States Parties. We repeat that this concerns cases of massive violations of human rights, which, thankfully, are exceptional occurrences. It is not a question of substituting the Commissioner for Human Rights for the States, but of enabling him to remedy the shortcomings observed in the last ten years on the part of the States which no longer use their entitlement to state applications.
Article 15
Re Article 38: Examination of the case
49. This article enables the Court to examine the case by taking argument from both parties and to undertake an investigation at any stage in its inquiry and not merely after the decision on admissibility as formerly.
50. The Assembly should be able to accept this modification, which follows from the amendments made to Articles 28 and 29 permitting a combined decision on admissibility and merits.
Article 16
Re Article 39: Friendly settlements
51. This article confers on the Committee of Ministers a new power of oversight of the execution of decisions endorsing the terms of friendly settlements.
52. The Assembly can support this proposal, as the reaching of friendly settlements is to be encouraged provided it does not operate to the applicant’s disadvantage.
Article 17
Re Article 46: Binding force and execution of judgments
53. This article provides for two new avenues open to the Committee of Ministers, viz. referral for interpretation of a judgment, and infringement proceedings. The Assembly should gives a favourable reception to these new provisions, which to some extent answer Recommendation 1477 (2000) on execution of judgments of the European Court of Human Rights in which it was requested:
"i. amend the Convention so as to give the Committee of Ministers the power to ask the Court for a clarifying interpretation of its judgments in cases where the execution gives rise to reasonable doubts and serious problems regarding the correct mode of implementation;
ii. to amend the Convention to introduce a system of "astreintes" (daily fines for a delay in the performance of a legal obligation) to be imposed on states that persistently fail to execute a Court judgment."
54. While infringement proceedings are doubtlessly not quite what the Assembly had in mind, this is at least a step in the right direction.
55. The Committee believes that, where infringement proceedings are concerned, in order to comply with the principle of equality of arms, the applicant should also be able to lodge infringement proceedings.
Article 18
Re Article 59: Signature, accession and ratification
56. This article provides that the European Union may accede to the Convention.
57. The Assembly should look favourably on this possibility, which it has repeatedly advocated.
Articles 19 and 20
58. These articles stipulate that the Protocol shall be open for signature by the member states of the Council of Europe, and provide for its entry into force three months after all Parties to the Convention have expressed their consent to be bound.
59. This is a lengthy procedure, and possible recourse to a "negative procedure" for the Protocol’s entry into force may be mooted.
Conclusions
60. The Assembly should be able to accept the draft Protocol No 14 while regretting that the opportunity has not been taken to include several of its recent recommendations. It should oppose the addition of a new admissibility criterion which, in its present wording, is vague, subjective and liable to cause the applicant a grave injustice.
61. The following amendments are therefore proposed to the draft Protocol No 14:
i. in Article 1: add the following words at the end of paragraph 3 of Article 20: "as well as the length of their term of office";
ii. in Article 2: add the following words to paragraph 1 of Article 22: "containing at least one candidature from a person of each gender" after the words "Contracting Party";
iii. in Article 3: merge paragraphs 2 and 3 of Article 23, to read as follows: "The terms of office of judges shall expire when they reach the age of 70. They shall, however, continue to deal with such cases as they already have under consideration";
iv. in Article 7: in paragraph 5 of Article 26, after the words "by that party", add the words: ", and after having consulted the Parliamentary Assembly,";
v. in Article 13: replace paragraph 3 of Article 35 by the following text:
"The Court shall declare inadmissible any individual application submitted under Article 34
a. if it considers the application to be incompatible with the provisions of the Convention or the Protocols thereto;
b. if it considers that respect for human rights as defined in the Convention and the Protocols thereto does not require the examination of the application;
c. if it considers that the application is manifestly ill-founded or an abuse of the right of application; or
d. if it is satisfied that the application has been duly examined by a domestic tribunal in accordance with the provisions of the Convention and the protocols thereto.";
vi. in Article 14: add a paragraph 4 to Article 36 to read as follows: "The Council of Europe Commissioner for Human Rights may bring before the Court cases of alleged mass violations of human rights";
vii. in Article 17: add the following sentence to the end of paragraph 4 of Article 46: "The applicant shall have the same possibility".
Reporting committee: Committee on Legal Affairs and Human Rights
Reference to committee: Reference proposed by the Bureau on 6 April 2004
Draft opinion unanimously adopted by the Committee on 21 April 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, Mr Goris, Mr Guardans, Mr G�nd�z, Mrs Hajiyeva, Mrs Hakl, Mr Holovaty (alternate: Mr Shybko), Mr Ionnadis, Mr Ivanov, Mr Jurica, Mr Kalezic, 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 (alternate: Mrs Moldovan), Mrs Ormonde, Mrs Pasternak, Mr Pehrson, Mr Pellicini, Mr Pentchev, Mrs P�tursd�ttir, Mr Piscitello (alternate: Mr Budin), 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, Mrs Wohlwend, Mr Zavgayev (alternate: Mr Sharandin)
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, Ms Clamer, Mr Milner