The reform of the control mechanism of the European Convention on Human Rights
REPORT
Doc. 6659
15 September 1992
Rapporteur: Mr VOGEL, Germany, CDU/CSU
Problems and solutions
The present two-stage supervisory system of the European Convention on Human Rights worked sufficiently well for many years. It did so notwithstanding its artificial structure, comprising one part‑time institution functioning notably as a filter - the European Commission of Human Rights which rejects without possibility of appeal, more than ninety per cent of the applications addressed to it - and two other separate institutions empowered to determine the merits of cases reaching them - the part-time European Court of Human Rights and the Committee of Ministers of the Council of Europe.
This complex and cumbersome mechanism was the outcome of a political compromise which proved necessary when it became clear that not all the Council of Europe member states were prepared to allow individual access to a Human Rights court. The end result is indisputable and unacceptable, namely on average five years of proceedings from the introduction of the application before the Commission until the final decision on the merits. The situation will no doubt become worse in a few years' time when the convention, which was conceived when the Council of Europe had 10 member states, has been fully accepted by 27, 35 or even 45 states. In addition, the convention community will have to respond tomorrow, if not today, to important new problems relating inter alia to minority social and economic protection, not to mention the possible accession of the European Communities to the Strasbourg convention.
It is obvious therefore that the control system, whatever its merits in the past, has to be simplified and streamlined if the convention is to be kept alive. It is said that the system is a "victim of its own success". Therefore urgent and radical reform is indispensable and it must provide for a strong and efficient judicial supervisory machinery functioning full time.
The report declares itself clearly in favour of the creation of a single full-time European Court of Human Rights.
I. DRAFT RECOMMENDATION [link to adopted text]
1. The Assembly recalls its Recommendation 1087 (1988) on the improvement of the procedures of the European Convention on Human Rights.
2. It notes that the number of Council of Europe member states has risen to 27 and will continue to rise in the next few years and that a considerable increase in the number of applications submitted to the Commission and to the Court is thus to be expected.
3. It expects that the number of individual applications will increase more than proportionally to the population of the new member states as, contrary to older member states, the Council of Europe's system for the protection of human rights constitutes for them an important element for the building-up of fundamental rights, democracy and the rule of law.
4. It maintains that the real test for its system for the protection of human rights is still to come and that the reform of the control mechanism of the convention is therefore of the utmost importance for the Council of Europe.
5. In this respect it may be useful to take into account the Assembly's Recommendation 1183 (1992) on access by European non-member states to institutions operating under certain Council of Europe conventions relating to human rights.
6. The Assembly also takes into account the report of its Committee on Legal Affairs and Human Rights (Doc. 6659) and the results of the Hearing which the Committee organised on 15 June 1992 in Strasbourg.
7. The Assembly now expresses its conviction that the reform of the control mechanism of the European Convention on Human Rights can no longer be postponed.
8. The Assembly therefore recommends that the Committee of Ministers:
i. take the necessary steps to reform the control mechanism of the European Convention on Human Rights without delay;
ii. in doing so, give clear preference to the proposal to create a single court as a full-time body in replacement of the existing Commission and Court of Human Rights;
iii. refrain from opting for a temporary solution that would further retard the necessary reform.
II. EXPLANATORY MEMORANDUM
by Mr Vogel
1. Introduction
1.1. It is now four years ago that the Assembly, in its Recommendation 1087 (1988) on the improvement of the procedures of the European Convention on Human Rights, recommended "that the Committee of Ministers consider the possibility of merging the European Court and Commission of Human Rights, while weighing carefully the arguments for and against, and consult the European Commission and Court of Human Rights and the Assembly on the reform envisaged."
1.2. Perhaps I should stress that the initiative for studying the feasibility of a merger of Commission and Court was taken well before the adoption of the Assembly's recommendation which therefore aimed mainly at supporting and at accelerating the work already undertaken by the Committee of Experts on Procedural Matters (DH-PR) of the Steering Committee on Human Rights (CDDH), under the instructions and the responsibility of the Committee of Ministers.
1.3. Unfortunately this work has not yet led to any concrete results. Different proposals are still pending and no firm conclusions have yet been reached on which the Committee of Ministers - in last resort - must take decisions. In its reply to our recommendation the Committee of Ministers said, inter alia: "As is standard practice, the Court and the Commission will be consulted at a suitable stage on the merger idea and the Committee of Ministers would certainly seek the views of the Assembly before adopting any reform of this kind".
1.4. When, at the beginning of 1992, it appeared that negotiations were protracting and that neither the arguments of those who favoured a single court nor the arguments of those who wanted a two-tier system were convincing enough to turn the balance of the governmental experts in their favour, time seemed ripe for a new parliamentary initiative. It was then, on my proposal, that the Committee on Legal Affairs and Human Rights decided to hold a hearing which took place in Strasbourg on 15 June 1992, at which participated members of the European Commission and Court of Human Rights, including their Presidents, the Secretary General of the Council of Europe, Mr Badinter, President of the French Constitutional Council, judges of the national constitutional courts of Austria, Germany and Italy, a former President of the European Court of Justice in Luxembourg, etc. It was a highly interesting hearing which enabled the committee to obtain a much better picture of the problems involved and their possible solution than it had before.
2. The two-tier (three-stage) structure of the control mechanism of the European Convention on Human Rights
2.1. Many keen Europeans, and in particular many members of the Assembly, in 1950, regretted that the convention did not establish a single European Court, available to all those who wished to complain of any alleged violations of the material provisions of the convention. However, the present situation, which was the result of an elaborate diplomatic and political compromise, has showed its worth for 40 years and most people will now agree that the solutions found were wise and carefully thought out. They enabled member states, many of which were certainly not yet prepared to go too far, to proceed on a step-by-step
basis and gradually accept the optional clauses of the convention (Article 25 on the right of individual application and Article 46 on the compulsory jurisdiction of the Court). Over the years the system has matured into a highly sophisticated human rights supervisory mechanism.
2.2. In accordance with the compromise which had been reached, a European Commission of Human Rights was set up. In the proceedings which are confidential, it acts as a "filter" by considering the admissibility of applications, promotes friendly settlements and, if appropriate, gives an opinion as to whether or not the applications submitted to it reveal a violation of the convention.
2.3. The system envisaged 40 years ago was that applicants would have to submit their cases to the Commission first and that - unless the member state concerned had recognised the jurisdiction of the Court - the final and binding decision would be given by the Committee of Ministers, again in confidential proceedings.
2.4. Under this system (now to be changed in application of Protocol No. 9 to the convention) applicants are not able to submit their cases to the Court. It is only the state concerned or the Commission which may refer (if Article 46 has been accepted) a case to the Court. The latter's proceedings are public and lead to a final and binding legal decision.
3. The present situation: the need for reform
3.1. Twenty-four out of twenty-seven member states of the Council of Europe have ratified the convention and accepted its optional provisions (Articles 25 and 46). Czechoslovakia ratified recently and it is expected that Bulgaria, Hungary and Poland will ratify the convention in the near future. Even excluding the impact that ratification of the convention will have when a number of states from central and eastern Europe accept the optional provisions, it is readily acknowledged that the Strasbourg control system has become a victim of its own success: it now takes on average five to six years for a case to be dealt with from the moment the complaint is lodged with the Commission to a final decision either by the Court or by the Committee of Ministers, not to mention domestic Court proceedings which may have preceded the complaint lodged in Strasbourg and which may also take several years.
3.2. Indeed, the present backlog of cases pending, in particular before the Commission, is unacceptable: at the commencement of the Commission's session in July 1992, the number of pending cases stood at 2 397, more than 1 530 of which had not yet been considered by the Commission. As of July 1992, 363 cases had been referred to the Court, of which 67 were pending. And, whereas up to 1988 there were never more than 25 cases referred to the Court in one year, 31 were referred in 1989, 61 in 1990 and 93 in 1991, and it is probable that the number will increase even more when the full effects are felt of the provisions of Protocol No. 8 regarding the Commission. In addition, the Court's workload is also likely to increase with the entry into force of Protocol No. 9 to the convention, which will enable individual applicants to refer their cases to the Court.
3.3. No doubt, the backlog of cases and the fact that the present system is not able to cope with the ever-increasing number of applications are sufficient to demonstrate the need to reform the control mechanism of the convention. A further argument for such reform is the increase in member states of the Council of Europe. There is a judge for every member state and, once a member state has ratified the convention, an additional member of the Commission has to be appointed. By the year 2000 there may well be 35 to 45 judges and an equal number of members of the Commission.
4. Recent reforms and modifications of the convention already
in force or approved
4.1. It was at the first Ministerial Conference on Human Rights (Vienna, March 1985) that the Protocol No. 8 to the convention was opened for signature. This amending protocol has now been ratified by all Contracting States to the convention and its text is incorporated in the convention. It provides that the Commission may set up chambers, each composed of at least seven members, which may examine such individual applications as can be dealt with on the basis of established case law or which raise no serious question affecting the interpretation or application of the convention. These chambers may exercise all the powers confered on the Commission. The member of the Commission elected in respect of a Contracting Party against which an application has been lodged has the right to sit on a chamber to which that application has been referred. In addition to these chambers, the Commission may set up committees, each composed of at least three members, with the power exercisable by a unanimous vote, to declare inadmissible or strike from its list individual applications when such decisions can be taken without much further examination.
4.2. Protocol No. 9 allows the individual applicant to bring his case before the Court. Although this right as such is not restricted, a panel of the Court will decide whether the case should be considered by the Court. In paragraph 2 of Article 5 of Protocol No. 9 it is stipulated that "[if] the case does not raise a serious question affecting the interpretation or application of the convention and does not for any other reason warrant consideration by the Court, the panel may, by a unanimous vote, decide that it shall not be considered by the Court".
5. The proposals made
5.1. Grosso modo two main proposals are the subject of discussion:
a. the creation of a single court,
b. the creation of a two-tier system through a reform of the Commission and the Court, leaving out the Committee of Ministers in individual applications but maintaining its role in inter-state applications.
a. Creation of a single Court
5.2. The solution proposed is that of creating a single court vested with jurisdiction to decide on both the admissibility and the merits of a case brought before it. Such a reform, it is claimed, would have the advantage of avoiding the delays inherent in the present two-stage system.
5.3. The most common argument advanced in favour of replacing the Commission and Court by a single body is that this would be the most efficient way of enabling the control machinery to cope satisfactorily with its ever increasing workload. There is consensus that the current length of proceedings under the convention is unacceptable: replacing the existing complex and, to a significant extent, overlapping two‑stage procedure by a single - and full-time - body would appear the most logical way to provide a durable solution which will overcome the present difficulties and, at the same time, meet foreseeable future needs.
5.4. In addition to speeding up proceedings under the convention, it has been argued that the creation of a single court would lead to a more homogenous supervisory system. Firstly, to have one body would remove the competitive element which some have on occasion detected in the relations between the Commission and Court. More importantly, with the establishment of a single European Court to which individuals would have access, the convention's control machinery would take on a markedly more judicial character than at present; in particular, with the possible exception of inter-state cases, the Committee of Ministers' functions under Article 32 would cease to exist.
b. The maintenance of a two-tier system through a reform of the
Commission and Court
5.5. Slightly different proposals in this respect were submitted by the Netherlands and Sweden.
5.6. The central idea in both proposals is that the opinions of the Commission under Article 31 of the convention - in so far as applications lodged under Article 25 are concerned - would be transformed into legally binding decisions. In other words, there would be established a two-tier judicial system, that is to say, the Commission would become a Court of first instance from which individual applicants and states would be accorded the right to appeal, subject to leave to appeal being granted by the Court of Appeal.
5.7. The essence of the proposed system is to provide a "filter" with similar prerequisites as in Protocol No. 9, leaving a wide margin of appreciation to the Court of Appeal. Reference to that Court would thus be subject to a decision by (a panel and possibly a Chamber of) the Court when an appeal is lodged by an individual and/or a state concerned. This screening process would, it is suggested, empower the Court of Appeal to confine itself to considering the most important cases.
5.8. If the proposed system leads to a situation where the vast majority of cases would be dealt with by the Court of first instance it would result in a substantial saving of time, as well as of personal resources. However if that Court or a panel of the Court were to grant leave to appeal, the procedure might well take a longer time than it does at present. Indeed, it could amount to the equivalent of two full Court hearings. The Court of Appeal might find it difficult to refuse leave to appeal in many cases. And the leave to appeal - procedure itself would take time as well.
6. Conclusions
6.1. Taking into account the growing number of applications and of member states of the Council of Europe there is a need for fundamental reform. This is also required to enable the convention community to respond to the important new problems relating inter alia to minority protection and social and economic protection, not to mention the possible accession of the European Communities to the Strasbourg convention.
6.2. The reform must streamline the system. The main point that has to be changed is the length of the Strasbourg proceedings. There is need for a system that can work efficiently and at acceptable costs even with 40 and more member states.
6.3. Under the existing two-stage procedure there is undeniably a considerable degree of duplication of work. This concerns the written pleadings, the hearings, and the deliberations in camera, in Commission and Court. It is evident that the creation of a single court would prevent the overlapping of work and also avoid certain delays which are inherent in the present system. The simplification and the streamlining of procedures would shorten the length of proceedings which should not exceed a maximum of two years. There remain doubts whether the "Dutch/Swedish proposal" would not much change the existing situation.
6.4. When elaborating the convention its authors held the view that an international system for the protection and enforcement of human rights should not follow a purely judicial approach. It was necessary to strike a balance between political and legal aspects. States should have the possibility of defending themselves in confidential proceedings and they should be allowed to save their face through friendly settlement procedures. It took many years before all Contracting States accepted the compulsory jurisdiction of the Court and - as long as they had not done so - a political body, that is to say, the Committee of Ministers of the Council of Europe, would take the final decision. Nowadays our member states have lost their fear of a purely legal body and are prepared to submit themselves to the Court's decisions which have proved to be wise and well-balanced.
6.5. No doubt the two-fold examination of the merits of a case offers some advantages, especially for countries which did not incorporate the convention into their domestic law. However, the introduction of a single court system would certainly simplify a lengthy and cumbersome process. A choice has now to be made. When making this choice the Council of Europe should look to the future and base itself on certain likely developments in Europe. Thus, one has to expect an increase of the number of judges in the Court because of an increase in the number of member states of the Council of Europe. There will also be more members of the European Commission of Human Rights because more states are likely to ratify the convention. In addition one may expect more individual applications to the Commission of Human Rights for basically three reasons: when a member state ratifies the convention and accepts the right of individual application, it takes a number of years before the convention is sufficiently well-known and practising lawyers are enough acquainted with it, and thus it is only after a certain period of time that the number of applications from such a country will reach its normal level. An increase in the number of Contracting States and of the states accepting the right of individual application also leads to more applications. Finally one should not forget the additional protocols, which some member states are slow in ratifying. They add new rights to the convention which may be the subject of individual applications.
6.6. The future is always hard to predict but, if one leaves the present situation as it is, one may expect that membership of the Commission will gradually turn from a part-time occupation into a full time one. Some members of the Commission may find it more convenient to live permanently in Strasbourg and will gradually abandon their professional activities in their home countries. Until now the workload of the Court has been considerably less than the Commission's, but the Court's workload is likely to increase sharply once Protocol No. 9 to the convention enters into force. For the judges of the Court there may therefore be a similar development as for the members of the Commission. The result is that the Council of Europe might end up at the beginning of the next century with some 70 or 90 full-time judges and members of the Commission, each of whom will have conditions of service no less advantageous than those of members of the Court of Justice of the European Communities.
6.7. No doubt the present two-stage system worked sufficiently well over many years but it was conceived for a relatively small number of member states and a limited number of individual applications. It must now be replaced by a more efficient and a more professional system which will have to be full-time and, in addition, should not become too expensive.
6.8. It may be recalled that none of the Council of Europe member states, which have set up special judicial machinery to protect human rights, and none of the major international judicial bodies had or have provided for a two-tier system. The European Court of Justice in Luxembourg was also set up as a single court. Some years ago a Court of first instance was added, but this was only done to deal with the large number of staff cases of which it was hoped that they would no longer be submitted to the Court. During the hearing on 15 June last the majority of the speakers expressed themselves in favour of a single court system and it is for the reasons mentioned above that the Committee on Legal Affairs and Human Rights now declares itself in favour of urgent reform leading to the establishment of a single European Court of Human Rights functioning full-time.
6.9. No doubt the procedures before such a court would have to be different from those at present followed by the Commission and Court. A single court would enable procedures to be streamlined without, however, prejudicing the existing procedural guarantees, both to applicants and to the respondent states, should be maintained.
6.10. The Assembly will now no doubt wish to leave it to the Committee of Ministers to consider whether there should be, in the new single court, a judge for every member state (which is the system of the Court of Human Rights at present) or for every Contracting Party to the convention (which is the system of the European Commission of Human Rights). The single court should, however, split up into three or more chambers of seven or nine judges. When constituting these chambers one should try to establish a geographical balance. Cases would be referred to the chamber in which a judge of the respondent state would be sitting. Although normally cases would be dealt with in one of these chambers, the really important, controversial or exceptional cases would have to be dealt with by the "plenary" court. Plenary court sittings should however be the exception rather than the rule.
6.11. Although, in principle, the judges in a single-court system would be full-time judges, one should not a priori exclude judges on a part‑time basis who continue exercising a second profession in their home countries and would only travel to Strasbourg for sittings of their chamber or of the plenary court. All judges should be elected by the Assembly from a list of persons nominated by member governments (Article 39 of the convention).
6.12. It is felt that a single court made up of more than 30 highly qualified judges who have a competent legal staff at their disposal, would not require the assistance of advocates-general. It is my opinion that for every case a judge-rapporteur should be appointed who would advise his chamber or the plenary court, as the case might be. This would require more active investigation by members of the Court than under a system with advocates general where judges might lean back and wait for what the parties and the advocates general might submit. The absence of advocates general would thus stimulate the judges into more active investigations and this would be beneficial for their decision-making. Moreover, if one were to appoint advocates-general and if the chambers and plenary court would have to consult them, this would no doubt be time-consuming and increase the overall cost of the running of the Court.
6.13. In conclusion it may be recalled that the Committee on Legal Affairs and Human Rights is fully in favour of the establishment of a single court system for the protection of human rights in the Council of Europe member states. It is not only in favour of a single court but it also feels that such a court should be set up rapidly. Every year lost may make it more difficult to change the present system which in the end will become even more cumbersone and expensive than the present one. It is true that an amending protocol to the European convention on Human Rights is required but we refuse to accept the arguments of those who maintain that the elaboration of such an amending protocol and its entry into force will be a matter of many years. Of course we know that normally the elaboration and enforcement of a convention of the Council of Europe is a matter of five to ten years but this does not need being so. On the contrary, the Human Rights Convention itself was elaborated in less than 18 months. The "Maastricht" Treaty of the European Communities provides for one year for the ratification procedure to be concluded in each of the twelve member states. No doubt "Maastricht" is much more complicated and difficult than would be the amending of the European Convention on Human Rights which will not require amendments to national constitutions or referenda in member states. If, by any chance, the Steering Committee on Human Rights and its expert committee are not able to cope with the matter, the Committee of Ministers may convene a diplomatic conference. One could think of the following timetable:
- 1993: elaboration of an amending protocol;
- 1994: ratification of the amending protocol by all Contracting States;
- 1995: entry into force of the amending protocol and election of the judges of the new single court;
- 1995-2000: transitional period in which the existing Commission and Court of Human Rights will continue to consider the cases which have been referred to them (or which will be referred to the Court under the existing system) while all new cases will be submitted to the new single court.
Reporting committee: Committee on Legal Affairs and Human Rights.
Reference: Doc. 6635, Reference No. 1793 of 30 June 1992.
Draft recommendation: adopted by the committee on 7 September 1992.
Members of the committee: Lord Kirkhill (Chairman), Mr Strimitzer (Vice-Chairman), Mr Jansson (Vice-Chairman), MM. Akarçali, Amaral, Arnalds, Autain (Alternate: Lagorce), Bartodziej, Bindig, Borg, Candal, Cardelli, Chevalier, Collette, Colombo, Columberg, Espersen, Franck, Fuhrmann (Alternate: Gusenbauer), Galanos, Gémesi, (Alternate: Hadjidemetriou), Guenov, Gundersen, Hagård, Mrs Haller, MM. Karcsay, Kempinaire, Mrs Lentz-Cornette, MM. Loutfi, Markiewicz, Mimaroglu, Negri (Alternate: Mezzapesa), Nolan, Nuñez, Oehry, Rodotà, Rokofyllos, Ruiz, von Schmude, Sir Dudley Smith (Alternate: Sir John Hunt), Mrs Soutendijk-van Appeldoorn (Alternate: Mr Eisma), MM. Stamatis, Stoffelen, Tabajdi, Vogel, Ward (Alternate: Rathbone), Worms.
N.B. The names of the members who took part in the vote are underlined.
Secretaries to the committee: Mr Plate and Ms Coin.