Access by European non-member states to institutions operating under certain Council of Europe conventions relating to human rights

Access by European non-member states on institutions operating under certainCouncil of Europe conventions relating to human rights

REPORT

Doc. 6585

24 March 1992

Rapporteur: Mrs HALLER, Switzerland, Socialist

Problems and proposed solutions

            Members of the CSCE, not members of the Council of Europe, have requested to be allowed to accede to the machinery for the protection of human rights in order to achieve a level of guarantee comparable to the one offered by Council of Europe member states.

            The three main legal instruments for the protection of human rights, that is, the European Convention on Human Rights, the European Convention for the Prevention of Torture and the European Social Charter, are not open for signature by non member states. While the latter two could be opened, the first one could not.

            Therefore it is proposed to give these countries the opportunity to request opinions from the European Court of Human Rights, the Committee of Independant Experts of the European Social Charter and to allow the Committee for the Prevention of Torture to visit places of detention in these countries.

I. DRAFT RECOMMENDATION [link to adopted text]

1.         The Assembly is gratified by the unanimous recognition today of the role of the Council of Europe in the protection and the promotion of human rights as a major and undisputed achievement.

2.         The Assembly is therefore not surprised that non-member countries should look to the Council of Europe to extend to them its human rights protection mechanisms such as the European Convention for the Protection of Human Rights and Fundamental Freedoms, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the European Social Charter, each a potential guarantor of their young democracies.

3.         The Assembly, which took the initiative for a rapprochement with these countries, should not now disappoint their expectations.

4.         The Assembly believes that CSCE member countries which are not members of the Council of Europe should have access:

i.          to the European Court of Human Rights,

ii.          to the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment,

iii.         to the Committee of Independent Experts of the European Social Charter,

for the purpose of requesting opinions.

5.         Access should be provided for state bodies, with the same right being granted by the state concerned to local and regional authorities, non-governmental organisations and - for federations - to member states. Access by individuals would remain optional.

6.         The Assembly further takes the view that there is no reason why non-member states should not be able to accede to the European Convention for the Prevention of Torture.

7.         The Assembly therefore recommends that the Committee of Ministers

i.          enable European states which are members of the CSCE but not of the Council of Europe

            a.         to request opinions from the European Court of Human Rights,

            b.         to invite the European Committee for the Prevention of Torture to visit places of detention in these countries,

            c.         to obtain opinions from the Committee of Independent Experts of the European Social Charter on questions concerning economic and social rights;

ii.          speed up its work to reform the organs responsible for implementing the European Convention on Human Rights,

iii.         open the European Convention for the Prevention of Torture to accession by European non-member states.

II. EXPLANATORY MEMORANDUM

by Mrs Haller

             This report is a sequel to both the meeting held in Moscow on the occasion of the CSCE Conference on the Human Dimension, and to the "Sager" proposal on the accession of non-member states to the European Convention on Human Rights.

            The Council of Europe can be proud of its achievements in the field of human rights. Indeed, its competence in this field today is unquestioned, and this can only be a source of satisfaction.

            It is therefore hardly surprising that countries which for decades have been urged to respect human rights, as a prerequisite for their admission to the family of democracies, should look to the Council of Europe, at a time when they decide to regain their place in this family, to make its machinery for the protection of human rights available to them.

            This is something which emerged clearly from the meeting held in Moscow on 30 September and 1 October 1991, on the occasion of the CSCE Moscow Conference on the Human Dimension, by the Sub-Committee on Human Rights of the Committee on Legal Affairs and Human Rights and by the Sub-Committees on the CSCE of the Political Affairs Committee and of the Committee on Relations with European Non-Member States, together with an ad hoc sub-committee of the Committee on Culture and Education.

            The Council of Europe cannot remain deaf to the wishes expressed by (as yet) non-member states to become part and parcel of the Europe of human rights and thus protect themselves from the vicissitudes of history.

            It has also the duty to help these countries to reach a comparable level of protection to that offered by member states of the Council of Europe.

            What is the right response to these expectations? First three legal instruments are involved the main one being the European Convention on Human Rights, followed by the European Convention for the Prevention of Torture and the European Social Charter.

            It will be remembered that Mr Sager proposed that non-member states should be able to accede to the first-named convention. The two experts consulted by our committee at that time were of the opinion that such a course was not desirable, partly because such states were not represented in the Commission, the Court or the Committee of Ministers, but mainly because the only penalty available under the convention was the ultimate expulsion from the Council of Europe of a state judged guilty of violating human rights and, by definition.   This could not apply to a non-member state. On the other hand, opening the Convention for the Prevention of Torture as well as the European Social Charter to accession by non-member states could be envisaged, although it would probably take a very long time.

            A fast and effective response to the aspirations of the countries in question would be to authorise certain bodies operating within the framework of the three conventions to place themselves at the disposal of non-member states that so desired.

1.         The states concerned

            The first question is to which states should this possibility be granted. It seems advisable to limit the facility to the CSCE countries, since the applicant countries are members of the CSCE, which does not intend either to establish legal machinery to give effect to human rights or to institutionalise an appeals mechanism - which incidentally would not be desirable from the Council of Europe's point of view.

2.         The three conventions involved

            With regard to the European Convention on Human Rights, the question to be considered is to whom the interested parties should be able to apply. The answer depends on the nature of the decisions that may be expected, viz advisory opinions. In this case only the Court would be required to give such opinions according to procedures to be laid down by itself. This task could probably be entrusted either to a group of the Court's members or even to only one of them, and the addition of an "ad hoc judge" from the state concerned might be envisaged. This latter arrangement would have the additional advantage of playing an educational role.

            The issue when it comes to the European Convention for the Prevention of Torture is that of enabling states to request a visit by a delegation from the European Committee for the Prevention of Torture (CPT). It will also be necessary to point out in no uncertain terms that the CPT is free to choose the establishments it is to visit. While putting forward this proposal, we believe it would be desirable to open the Convention for the Prevention of Torture to ratification by non-member states as soon as possible.

            Where the European Social Charter is concerned, non-member states would be enabled to request opinions from the Committee of Independent Experts of the European Social Charter.

3.         Who could request these advisory opinions?

            The categories provided for in the European Convention on Human Rights should be adapted to the countries which are to be allowed access to the Court. These categories would be as follows:

-           the organs of the central authority

-           the constituent states of a federation

-           local and regional authorities

-           non-governmental organisations

-           individuals

            It is true that recognising the right of individuals to apply to the Court for an advisory opinion would cause difficulties, and it is also to be feared that the state or governmental organs would want to restrict the possibility of applying to the Court to themselves.

            To obviate this problem, a state's access to the Court should be conditional on its recognition of the same facility at least for the following three further categories: the constituent states of a federation, local and regional authorities, and non-governmental organisations. Access for individuals would continue to be optional, as is already the case under the convention.

            Bodies in these three categories would also have the right of access to the European Committee for the Prevention of Torture and the Committee of Independent Experts of the European Social Charter.

4.         Procedure to follow

            The initial step would be a declaration by the state wishing to accede to the three above-mentioned mechanisms by which the state would at the same time automatically grant access to the other categories with the exception of individuals, for whom access would be optional.

            The actual application procedure should be modelled closely on the procedure for applying to the European Commission of Human Rights, that is by addressing a letter to the Secretary General. The application procedure would be the same in the case of the CPT and the Charter's Committee of Independent Experts of the European Social Charter.

5.         Administrative aspects

            The above proposals would not involve any complex procedures; a resolution adopted by the Committee of Ministers would suffice.

            As regards the budgetary implications, it is obvious that applicant states could not be expected to bear the cost of such procedures in their present economic situation. There would have to be a special budget maintained by contributions from member states, which, in agreeing to make this machinery available, would at the same time accept its cost as a contribution to the development of democracy in Europe.

            On the other hand, there would be a real problem regarding the ability of the organs concerned to cope with the additional workload it would involve for them, particularly in the case of the European Court of Human Rights. But this difficulty is surely no excuse for declining to act on the above proposals; indeed, the Committee of Ministers should regard this as a further reason for speeding up the process of reforming the organs responsible for implementing the European Convention on Human Rights, as already called for by the Parliamentary Assembly in its Recommendation 1087 (1988) relating to the improvement of the procedures of the European Convention on Human Rights.

6.         Application of new Council of Europe mechanisms

            A final point to be made is that it would be necessary to secure the agreement of the organs concerned, viz the European Court and Commission of Human Rights, the European Committee for the Prevention of Torture and the Committee of Independent Experts of the European Social Charter. The European Committee for the Prevention of Torture has already declared its readiness to respond to requests for visits which it might receive.

Reporting committee: Committee on Legal Affairs and Human Rights

Budgetary implications for the Assembly: None

Reference: Doc. 6046 and Reference No. 1633 of 12 May 1989

Draft recommendation: unanimously adopted by the committee on 9 March 1992

Members of the committee: Lord Kirkhill (Chairman), Mr Strimitzer (Vice-Chairman), Mrs Ekman (Vice-Chairwoman), MM. Akarçali, Amaral, Arnalds, Bartodziej, Bindig, Brincat, Candal, Chevalier, Collette, Colombo, Columberg (Alternate: Mrs Haller)), Espersen, Fodor (Alternate: Tabjdi), Fuhrmann, Ghalanos, Gundersen, Stig Gustafsson, Hyland (Alternate: Ferris), Jansson, Karcsay, Kempinaire, Mrs Lentz-Cornette (Alternate: Mrs Err), MM. Markiewicz, Meimarakis, Mimaroglu, Negri, Nuñez, Oehry, Petitpierre, Pontillon (Alternate: Lagorce), Posluch, Rodotà, Rokofyllos, Ruiz, von Schmude, Sir Dudley Smith, Mrs Soutendijk-van Appeldoorn, MM. Stoffelen, Vogel, Ward, Worms.

N.B. The names of the members who took part in the vote are underlined.

Secretaries of the committee: Mr Plate and Ms Coin.