Draft Protocol No. 11 to the European Convention on Human Rights

25 October 1993

Doc. 6965

REQUEST FOR AN OPINION

FROM THE COMMITTEE OF MINISTERS TO THE ASSEMBLY

on Draft Protocol No. 11

to the European Convention on Human Rights

Letter from the Chairman of the Ministers' Deputies

to the President of the Assembly

(dated 22 October 1993)

Dear President,

During their 500th meeting held from 18 to 21 October 1993, the Ministers' Deputies "decided to consult officially the Parliamentary Assembly as well as the European Commission and Court of Human Rights on Draft Protocol No. 11 to the European Convention on Human Rights in its present drafting [...], with a view to seeking their opinion on this text, and agreed to keep these three bodies regularly informed on progress of the work of the experts".

In accordance with this decision, I have the pleasure of forwarding to you the text of Draft Protocol No. 11 to the European Convention on Human Rights in its present drafting. I would be very grateful if you would transmit this text to the Assembly, with a view to seeking its opinion on it.

In keeping with the above-mentioned decision of the Deputies, I will not fail to keep you regularly informed on the progress of the work of the experts on this matter.

Yours sincerely,

signed:

Hans Winkler

Chairman of the Ministers' Deputies

DRAFT PROTOCOL No. 11 TO THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS, RESTRUCTURING THE CONTROL MACHINERY ESTABLISHED THEREBY

The member States of the Council of Europe, signatories to this Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (hereinafter referred to as "the Convention"),

Considering the urgent need to restructure the control machinery established by the Convention in order to maintain and improve the efficiency of its protection of human rights and fundamental freedoms, mainly in view of the increase in the number of applications and the growing membership of the Council of Europe,

Considering that it is therefore desirable to amend certain provisions of the Convention in view, in particular, to replace the existing European Commission and Court of Human Rights with a new permanent Court,

Having regard to Resolution No. 1 adopted at the European Ministerial Conference on Human Rights, held in Vienna on 19 and 20 March 1985,

Having regard to Recommendation 1194 (1992), adopted by the Parliamentary Assembly of the Council of Europe on 6 October 1992,

[Resolution: Vienna Summit]

Have agreed as follows:

Article 1

The existing text of Sections II to IV of the Convention (Articles 19 to 56) and Protocol No 2 conferring upon the European Court of Human Rights competence to give advisory opinions, shall be replaced by the following Section II of the Convention (Articles 19 to 49):

"SECTION II

Article 19

To ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto, there shall be set up a European Court of Human Rights, hereinafter referred to as "the Court". It shall function on a permanent basis.

Article 20

The Court shall consist of a number of judges equal to that of the High Contracting Parties.

Article 21

1. The judges shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence.

2. The judges shall sit on the Court in their individual capacity.

3. During their term of office the judges shall not engage in any activity which is incompatible with their independence and impartiality or with the demands of the full-time character of this office; all questions arising on the application of this paragraph shall be decided by the Court.

Article 22

1. The judges shall be elected by the Parliamentary Assembly with respect to each High Contracting Party by a majority of votes cast from a list of three candidates nominated by the High Contracting Party.

2. The same procedure shall be followed to complete the Court in the event of the accession of new High Contracting Parties and in filling casual vacancies.

Article 23

1. The judges shall be elected for a period of six years. They may be re-elected. However, of the judges elected at the first election, the terms of office of one half of the judges shall expire at the end of three years.

2. The judges whose terms are to expire at the end of the initial period of three years shall be chosen by lot by the Secretary General of the Council of Europe immediately after the first election has been completed.

3. In order to ensure that, as far as possible, the terms of office of one half of the judges shall be renewed every three years, the Parliamentary Assembly may decide, before proceeding to any subsequent election, that the term or terms of office of one or more judges to be elected shall be for a period other than six years but not more than nine and not less than three years.

4. In cases where more than one term of office is involved and where the Parliamentary Assembly applies the preceding paragraph, the allocation of the terms of office shall be effected by the drawing of lots by the Secretary General of the Council of Europe immediately after the election.

5. A judge elected to replace a judge whose term of office has not expired shall hold office for the remainder of his predecessor's term.

6. The terms of office of judges shall expire when they reach the age of 70.

7. The judges shall hold office until replaced. After having been replaced, they shall continue to deal with such cases as they already have under consideration.

Article 24

The judges may be assisted by referendars chosen by them.

Article 25

The Court shall have a registry. The functions and organisation of the registry shall be laid down in the rules of the Court.

Article 26

The plenary Court shall:

(a) elect its President and one or two Vice-Presidents for a period of three years; they may be re-elected;

(b) set up Chambers, constituted for a period of three years;

(d) adopt the rules of the Court;

(e) elect the Registrar and one or more Deputy Registrars.

Article 27

1. For consideration of cases brought before it, the Court shall sit in committees of three judges, in Chambers of seven judges and in a Grand Chamber of seventeen judges. The Court's Chambers shall set up committees for a period of one year.

2. There shall sit as an ex officio member of the Chamber and the Grand Chamber the judge elected in respect of the State Party concerned, or, if there is none, or if he is unable to sit, a person of its choice who shall sit in the capacity of judge.

3. The Grand Chamber shall also include the President of the Court, the Vice-Presidents, the Presidents of the Chambers and other judges chosen in accordance with the rules of the Court. When a case is referred to the Grand Chamber in accordance with Article 41, no judge from the Chamber which rendered the judgment shall sit in the Grand Chamber, with the exception of the President of the Chamber and the judge elected in respect of the State Party concerned.

Article 28

A committee may, by a unanimous vote, declare inadmissible or strike from its list of cases an application submitted under Article 34, when such a decision can be taken without further examination. The decision shall be final.

Article 29

If there is no decision under Article 28, a Chamber shall decide on the admissibility and the merits of applications submitted under Article 34. The decision on admissibility shall be taken separately.

Article 30

Where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or its Protocols or where the resolution of a question before it might have a result inconsistent with a judgment previously delivered by the Court, the Chamber may, at any time before it has rendered its judgment, relinquish jurisdiction in favour of the Grand Chamber, unless one of the parties to the case objects.

Article 31

The Grand Chamber shall:

1. decide:

(a) on applications submitted under Article 33;

(b) on applications submitted under Article 34, when a Chamber has relinquished jurisdiction under Article 30;

(c) on applications submitted under Article 34, when the case has been referred to it under Article 41.

2. consider requests for advisory opinions submitted under Article 45.

Article 32

1. The jurisdiction of the Court shall extend to all cases concerning the interpretation and application of the Convention and the Protocols thereto which are referred to it as provided in Articles 33 and 34.

2. In the event of dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.

Article 33

Any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party.

Article 34

The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention and the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.

Article 35

1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.

2. The Court shall not deal with any application submitted under Article 34 which:

(a) is anonymous;

(b) is substantially the same as a matter which has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and if it contains no relevant new information.

3. The Court shall consider inadmissible any application submitted under Article 34 which it considers incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of application.

4. The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.

Article 36

1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that:

(a) the applicant does not intend to pursue his application;

(b) the matter has been resolved;

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.

2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.

Article 37

1. If the Court accepts the application as admissible, it shall:

(a) undertake, with a view to ascertaining the facts, together with the representatives of the parties, an examination of the application and, if need be, an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities, after an exchange of views with the Court;

(b) place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention and the Protocols thereto.

2. Proceedings undertaken in accordance with paragraph 1(b) shall be confidential.

Article 38

If a friendly settlement is effected, the Court shall strike the case out of its list by means of a decision which shall be confined to a brief statement of the facts and of the solution reached.

Article 39

If the Court finds that there has been a violation of the Convention or its Protocols, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.

Article 40

The judgment of a Chamber shall become final in accordance with the provisions of Article 42, paragraph 2.

Article 41

1. Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber.

2. A panel of three judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance.

3. If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgment.

Article 42

1. The judgment of the Grand Chamber shall be final.

2. The judgment of a Chamber shall become final:

(a) when the parties declare that they will not request the referral of the case to the Grand Chamber;

(b) three months from the date of the judgment, if the referral of the case to the Grand Chamber has not been requested;

3. The final judgment shall be published.

Article 43

1. Reasons shall be given for a judgment as well as for a decision rejecting or declaring an application as admissible.

2. If a judgment does not represent, in whole or in part, the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion.

Article 44

1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

2. The final judgment of the Court shall be transmitted to the Committee of Ministers which shall supervise its execution.

Article 45

1. The Court may, at the request of the Committee of Ministers, give advisory opinions on legal questions concerning the interpretation of the Convention and its Protocols.

2. Such opinions shall not deal with any question relating to the content or scope of the rights or freedoms defined in Section I of the Convention and in its Protocols, or with any other question which the Court or the Committee of Ministers might have to consider in consequence of any such proceedings as could be instituted in accordance with the Convention.

3. Decisions of the Committee of Ministers to request an advisory opinion of the Court shall require a majority vote of the representatives entitled to sit on the Committee.

Article 46

The Court shall decide whether a request for an advisory opinion submitted by the Committee of Ministers is within its consultative competence as defined in Article 45.

Article 47

1. Reasons shall be given for advisory opinions of the Court.

2. If the advisory opinion does not represent in whole or in part the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion.

3. Advisory opinions of the Court shall be communicated to the Committee of Ministers.

Article 48

The costs of the Court shall be borne by the Council of Europe.

Article 49

1. The judges shall be entitled, during the discharge of their functions, to the privileges and immunities provided for in Article 40 of the Statute of the Council of Europe and in the agreements made thereunder.

2. The Fourth Protocol to the General Agreement on Privileges and Immunities of the Council of Europe applies to the judges."

Article 2

1. Section V of the Convention shall become Section III of the Convention; Article 57 of the Convention shall become Article 50 of the Convention; Articles 58 and 59 [and 63, paragraph 4,] of the Convention shall be deleted, and Articles 60 to 66 of the Convention shall become Articles 51 to 57 of the Convention, respectively.

[2. In the fourth paragraph of new Article 54, the words "Commission to receive petitions" and "Article 25 of the present Convention" shall be replaced by the words "Court to receive applications" and "Article 32 of the Convention", respectively.

3. Article 6, paragraph 2, of Protocol No 4 and Article 7, paragraph 2, of Protocol No 7 shall be deleted. Protocol No 9 to the Convention shall be repealed.

Variant of paragraph 3

3. Article 6, paragraph 2, of Protocol No. 4 shall be replaced by the following text:

"2. Nevertheless, the right of individual recourse under Article 34 shall not be effective in relation to this Protocol in respect of a High Contracting Party unless the High Contracting Party concerned has accepted this right in respect of all or any Articles 1 to 4 of this Protocol."

Article 7, paragraph 2, of Protocol No. 7 shall be replaced by the following text:

"2. Nevertheless, the right of individual recourse under Article 34 shall not be effective in relation to this Protocol in repect of a High Contracting Party unless the High Contracting Party concerned has accepted this right in respect of Articles 1 to 5 of this Protocol."

Protocol No. 9 to the Convention shall be repealed.]

Article 3

1. This Protocol shall be open for signature by member States of the Council of Europe signatories to the Convention, which may express their consent to be bound by:

(a) signature without reservation as to ratification, acceptance or approval;

(b) signature subject to ratification, acceptance or approval, followed by ratification, acceptance or approval.

2. The instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.

Article 4

This Protocol shall enter into force on the first day of the month following the expiration of a period of six months after the date on which all Parties to the Convention have expressed their consent to be bound by the Protocol in accordance with the provisions of Article 3. [Articles 19 to 25, 48 and 49 of the new Section II of the Convention shall enter into force immediately on the date on which all Parties to the Convention have expressed their consent to be bound by the Protocol with respect to the election of new judges.]

[Article 5

1. All applications pending before the Commission which have not been declared admissible at the date of the entry into force of this Protocol shall be examined by the Court in accordance with the provisions of this Protocol.

2. Applications which, at the date of the entry into force of this Protocol, have been declared admissible by the Commission shall be examined by the Commission within a period of eighteen months; provisions applicable before the entry into force of this Protocol shall apply to these applications. Applications, the examination of which has not been completed by the Commission within a period of eighteen months from the date of entry into force of this Protocol, shall be transmitted to the Court which shall examine them in accordance with the provisions of the present Protocol.

3. With respect to cases in which the Commission has adopted a report in accordance with former Article 31 of the Convention, the following shall apply: the Commission's report shall be transmitted to the parties which shall not be at liberty to publish it. If a case raises a serious question affecting the interpretation or application of the Convention, any of the parties may refer the case to the Court. Such a referral shall be made within a period of three months from the date of the transmission of the report to the parties. A panel of at least three judges of the Court shall decide as to whether the case fulfills the criteria for examination by the Grand Chamber of the Court. If so, the Grand Chamber shall decide the case in accordance with the provisions in this Protocol. Cases not referred to the Court shall be dealt with by the Committee of Ministers in accordance with the provisions of Article 32 of the Convention, in force before the date of entry into force of this Protocol.

4. All cases pending before the Court which have not been decided at the date of entry into force of this Protocol shall be transmitted to the Grand Chamber of the Court which shall examine them in accordance with the provisions of the present Protocol.

5. All cases pending before the Committee of Ministers, which have not been decided under former Article 32 of the Convention at the date of entry into force of this Protocol, shall be terminated by the Committee of Ministers [as soon as possible].

[5. The Committee of Ministers shall terminate the examination of all applications under former Article 32 [, paragraphs 1 and 2,] of the Convention, including those to be decided by virtue of paragraph 3 of the present Article, within a period of three years from the date of entry into force of this Protocol.]

6. The terms of office of all the judges presently on the Court shall expire at the date of entry into force of this Protocol.

7. The terms of office of all the members of the Commission shall expire eighteen months from the date of entry into force of this Protocol. An election of a new member shall only take place when a member leaves the Commission for any reason other than the normal expiration of his term of office. Article 21 of the Convention, in force before the date of entry into force of this Protocol, shall apply to this election.]

Article 6

The Secretary General of the Council of Europe shall notify the member States of the Council of:

(a) any signature;

(b) the deposit of any instrument of ratification, acceptance or approval;

(d) any other act, notification or communication relating to this Protocol.

* * *

In witness whereof the undersigned, being duly authorised thereto, have signed this Protocol.

Done at [...], in English and French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe.