Draft Protocol No. 11 to the European Convention on Human Rights (revised version)

13 December 1993

Doc. 6974

1403-8/12/93-1-E

REQUEST FOR AN OPINION

FROM THE COMMITTEE OF MINISTERS TO THE ASSEMBLY

on draft Protocol No. 11

to the European Convention on Human Rights

(revised version)

Letter from the Chairman of the Ministers' Deputies

to the President of the Assembly

(dated 6 December 1993)

Sir,

I refer to the letter dated 22 October 1993 in which my predecessor, Ambassador Hans Winkler, sent you the text of draft Protocol No. 11 to the European Convention on Human Rights as worded at the time, with a view to obtaining the Parliamentary Assembly's opinion on it.

In this letter Mr Winkler also informed you that, further to the decision of the Ministers' Deputies of 21 October 1993 to keep the Parliamentary Assembly and the European Commission and Court of Human Rights regularly informed of the progress of the experts' work, the Chairman of the Ministers' Deputies would keep you so informed.

I am therefore pleased to enclose the report of the 36th meeting of the Committee of Experts for the Improvement of Procedures for the Protection of Human Rights (DH-PR), held from 8 to 12 November 1993 (document DH-PR (93) 19), Appendix III to which contains the latest version of draft Protocol No. 11, with a view to its submission to the Assembly for an opinion. I also enclose the relevant excerpt from the report of the 35th meeting of the Steering Committee for Human Rights (CDDH), held from 22 to 25 November 1993 (document CDDH (93) 39).

I note that this matter has already been included on the draft order of business for the first part of the 1994 Ordinary Session of the Parliamentary Assembly. As the DH-PR Committee is to hold its next meeting from 31 January to 4 February 1994, it would be very helpful if the Assembly's opinion could be ready by that date.

Please accept, Sir, the assurance of my highest consideration.

(signed): Hugo FONDER

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,

Having regard to the decision taken on reform of the Convention control machinery by the heads of state and government of the Council of Europe member states in the Vienna Declaration on 9 October 1993,

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 50):

"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 capacities.

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 from 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 are 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 a 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 being replaced, they shall continue to deal with such cases as they already have under consideration.

Article 24

No judge can be dismissed unless, in the unanimous opinion of the other judges, he has ceased to fulfil the required conditions.

Article 25

The judges may be assisted by referendars chosen by them.

Article 26

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

Article 27

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;

c. elect the Presidents of the Chambers of the Court;

d. adopt the rules of the Court;

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

Article 28

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 42, 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 29

A committee may, by a unanimous vote, declare inadmissible or strike out of its list of cases an application submitted under Article 35, when such a decision can be taken without further examination. The decision shall be final.

Article 30

If there is no decision under Article 29, a Chamber shall decide on the admissibility and merits of applications submitted under Article 35. The decision on admissibility shall be taken separately.

Article 31

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 32

The Grand Chamber shall:

1. decide:

a. on applications submitted under Article 34;

b. on applications submitted under Article 35, when a Chamber has relinquished jurisdiction under Article 31;

c. on applications submitted under Article 35, when the case has been referred to it under Article 42.

2. consider requests for advisory opinions submitted under Article 46.

Article 33

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 34 and 35.

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 34

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 35

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 36

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 35 that:

a. is anonymous;

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

3. The Court shall consider inadmissible any application submitted under Article 35 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 37

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 38

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 39

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 40

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 41

The judgment of a Chamber shall become final in accordance with the provisions of Article 43, paragraph 2.

Article 42

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 43

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 that the case be referred to the Grand Chamber;

b. three months from the date of the judgment, if reference of the case to the Grand Chamber has not been requested;

c. when the panel of the Grand Chamber rejects the request to refer under Article 42.

3. The final judgment shall be published.

Article 44

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 45

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 46

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 47

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 46.

Article 48

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 49

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

Article 50

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 shall apply 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 51 of the Convention; Articles 58 and 59 of the Convention shall be deleted, and Articles 60 to 66 of the Convention shall become Articles 52 to 58 of the Convention respectively.

2. In the new Article 55, paragraph 4, 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 35 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 35 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 of Articles 1 to 4 of this Protocol."

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

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. The election of new judges may take place, and any further necessary steps may be taken to establish the new Court, in accordance with the provisions of this Protocol from the date on which all parties to the Convention have expressed their consent to be bound by the Protocol.

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; the provisions applicable before the entry into force of this Protocol shall apply to these applications. Such applications, the examination of which has not been completed by the Commission within that period 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 report of the Commission shall be transmitted to the parties, which shall not be at liberty to publish it. Within a period of three months any party may request that the case be referred to the Court. Such a request shall be examined by the Court in accordance with new Article 42 of the Convention. If the request is accepted, the Grand Chamber shall decide the case. Cases not referred to the Court shall be dealt with by the Committee of Ministers in accordance with the provisions of former Article 32 of the Convention.

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 completed by the Committee of Ministers.

6. The terms of office of the judges, the Registrar and the Deputy Registrar 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 after the date of entry into force of this Protocol. Any vacancies within this period shall be filled in accordance with former Article 21 of the Convention.

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;

c. the date of entry into force of this Protocol or of any of its provisions in accordance with Article 4;

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.

APPENDIX

Excerpt from the report of the 35th meeting

of the Steering Committee for Human Rights (CDDH)

Item 4 of the agenda: Reform of the control system of the European Convention on Human Rights (ECHR)

8. The CDDH took note of the DH-PR Committee's work on draft Protocol No. 11 as well as the draft explanatory report thereto (see doc. DH-PR (93) 19).

9. In the exchange of views which ensued, the following matters were highlighted:

—As concerns draft Article 24, this provision should be re-examined by the DH-PR in the light of the French delegation's proposal which reads as follows:"N

"No judge can be dismissed unless, in the unanimous opinion of the other judges, he has ceased to fulfil the conditions provided for in Article 21."

—Wi th regard to the subject of advisory opinions (draft Articles 46 to 48), a number of proposals, aiming either at a more meaningful provision concerning this particular role of the Court or at the abolition of the possibility of advisory opinions, merited further reflection by the DH-PR: the deletion of paragraph 2 of the draft Article 46, the deletion of the last limb of paragraph 2 of draft Article 46 (that is, as of the words "or with any other question ..." etc.) or the complete withdrawal of reference to advisory opinions in the body of Article 1 of draft Protocol No. 11 on the understanding that appropriate changes to Protocol No. 2 to the Convention could be made in Article 2 of draft Protocol No. 11.—

—Se veral experts considered that it would be appropriate to include in the text of the draft Protocol the proposal put forward by the German expert at the last DH-PR meeting (see draft Article 36.a, doc. DH-PR (93) 9, paragraph 7).—

—Wh en considering matters listed in the DH-PR Committee's meeting report (doc. DH-PR (93) 19 paragraphs 8 to 14), the DH-PR should, in addition, bear in mind certain other matters raised in discussions, such as the need to clarify that members of the present Commission and Court should have an equal opportunity to be elected onto the new Court; the question of the competence of the new Court ratione temporis; that decisions under draft Article 30 may need to be made available to the general public; whether decisions of a panel to accept or reject requests, as provided in draft Article 42, should be reasoned; and whether it would be appropriate to extend the terms of office of the present members of the Court when Protocol No. 11 comes into force, as is proposed for members of the Commission.*

* * *

10. All the above matters should be discussed by the DH-PR Committee at its extraordinary meeting from 31 January to 4 February 1994.

11. The question of the need to consider drafting a statute for the new Court was also discussed.

12. The CDDH also expressed the wish that, in the light of the Committee of Ministers' decision to keep the Parliamentary Assembly, as well as the European Court and Commission of Human Rights, regularly informed of the work being carried out on this subject, it would be appropriate for the said three bodies to receive copies of the latest DH-PR Committee meeting report together with an extract (item 4 on the agenda) of the present CDDH meeting report. It also expressed the wish that these three bodies be asked to transmit their opinions on the latest version of the draft Protocol No. 11 as soon as possible, so that their views be taken into account by the DH-PR Committee when it meets from 31 January to 4 February 1994.

A delegation wished to take up certain aspects of Articles 31 and 42 (2) in the light of observations of these three bodies. Other delegations feared that this might touch upon the compromise reached with regard to the reform.