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10 January 1994
Doc. 6983
1403-6/1/94-1-E
REPORT
on draft Protocol No. 11 to
the European Convention on Human Rights introducing a single court
(Rapporteur: Mr VOGEL,
Germany, Group of the European People's Party)
Summary
A single European Court of Human Rights is now to supersede the existing Commission and Court which have been in existence since the early 1950s. This was one of the main decisions taken at the Summit of Council of Europe Heads of State and Government (Vienna, 8-9 October 1993). The changes to be introduced in the system, through the adoption of an amending Protocol to the Human Rights Convention, should not significantly reduce any of the rights and safeguards of the parties to the cases brought before the new Court.
The present report supports the draft protocol and makes a number of proposals for improving it. The protocol should be ready for adoption by the Committee of Ministers and for signature and ratification by member states in May 1994. It could be ratified by all contracting states to the Convention before the end of 1995 and thus enter into force in 1996.
The following points are among the proposed improvements:
—ju dges should be elected for nine years (instead of six years) but their term of office should not be renewable;—
—th e text of the draft protocol should be easily understandable by lay persons. Certain provisions should therefore be reworded and their order be changed;—
—al l decisions of the Court should be adequately justified;—
—in order to enable the new Court to start with a clean sheet the existing Court and the Commission on Human Rights should be allowed to continue their work for a transitory period;—
—Co urt sessions should be held in public, whenever possible;—
—th e Court should not always be compelled to separate the question of admissibility of a case from the consideration of its merits. I.
I. Draft opinion
1. At the Council of Europe Summit (Vienna, 8-9 October 1993) the heads of state and government decided to establish as an integral part of the Convention, a single European Court of Human Rights to supersede the present controlling bodies. It then mandated the Committee of Ministers of the Council of Europe to finalise a draft protocol amending the European Convention for the Protection of Human Rights and Fundamental Freedoms, with a view to adopting a text and opening it for signature at its ministerial meeting in May 1994.
2. Immediately after the summit the Committee of Ministers decided to consult officially the Parliamentary Assembly as well as the European Commission and the Court of Human Rights on this draft protocol, with a view to seeking their opinion, and agreed to keep these three bodies regularly informed on progress of the work of the experts.
3. At its 93rd Ministerial Session on 4 November 1993, the Committee of Ministers confirmed the above decisions.
4. The Assembly, for its part, whole-heartedly welcomes these decisions which correspond to its often reiterated wish to be consulted on draft legal instruments of the Council of Europe and its proposal, laid down in Recommendation 1194 (1992), to create a single court in place of the existing Commission and Court.
5. The main characteristics of the proposed draft Protocol No. 11 to the European Convention on Human Rights introducing a single court system are the following:
i. establishment of a single court to supersede the existing Commission and Court of Human Rights;
ii. election of the judges (one in respect of each Contracting Party — as against one for each member state at present) for a period of six years (nine years at present) by the Assembly from three candidates proposed by the Contracting Party concerned;
iii. in essence the proceedings and procedural guarantees under the Convention are to be preserved while being adapted to the single court system;
iv. for consideration of the cases brought before it, the Court shall sit in committees of three (for decisions of admissibility), chambers of seven and a grand chamber of seventeen judges;
v. all inter-state applications shall be dealt with by the Grand Chamber;
vi. the right to submit individual applications (until now an optional clause of the Convention) will be made automatic;
vii. the Committee of Ministers will lose its role as a decision-taking body with regard to both individual and state applications (Article 32 of the existing text) but will continue to supervise the execution of the final judgments of the Court.
6. In conclusion, the Assembly fully supports draft Protocol No. 11 subject to the proposals made in paragraph 7. It expects this Protocol to be finalised and opened for signature and ratification, as planned, in May 1994. It hopes that the Protocol will be ratified by all Contracting States before the end of 1995 in order to enter into force in the course of 1996.
7. Although the Assembly, grosso modo, agrees with the text of the draft protocol, it wishes to make the following proposals and recommendations to the Committee of Ministers with a view to strengthening and improving its text:
i. The new Court should be permanent and full-time.
ii. As individual applicants do not need to be assisted by legal counsel the text of the draft protocol should be easily understandable by lay persons. An effort should be made to make the text as easily accessible as possible — provided this does not lead to any delay. For that reason a more logical order of the proposed provisions, the introduction of small headings above the articles, and a rewording (not a change of substance) of certain provisions is desirable.
iii. The new Court should start with a clean sheet and not have to consider cases which have been dealt with half way. The existing Commission and Court should be allowed to finish all cases pending before them. This is also in accordance with Article 40, paragraph 6 of the Convention as it now stands and which reads: "The members of the Court shall hold office until replaced. After having been replaced, they shall continue to deal with such cases as they already have under consideration". The existing Court might be given eighteen months, the Commission two and a half years (instead of eighteen months) to do this. Article 5 of the draft protocol should therefore be amended in this sense.
iv. The term of office of the judges should be maintained as it is under the present system (nine years) but without the possibility of re-election. The Assembly agrees however that "The Court shall consist of a number of judges equal to that of the High Contracting Parties" (Article 20 of the draft protocol) and no longer be "equal to that of the members of the Council of Europe" (Article 38 of the Convention) especially as it is now accepted that new member states should ratify the Convention within a year or so of having adhered to the Organisation.
v. Provision should be made that all decisions of the Court, including the decisions on admissibility (Article 29 of the draft protocol) are to be adequately justified.
vi. The Assembly supports the idea that a chamber of the Court should be able to relinquish jurisdiction in favour of the Grand Chamber. Yet this should be a matter for the Court alone and the words "unless one of the parties to the case objects" at the end of Article 31 of the draft protocol should be deleted.
vii. Whenever possible sessions of the chambers of the Court (including its Grand Chamber) are to be held in public.
viii. The Protocol should provide the framework for the new single Court. There is no need for an elaboration in detail and it must be kept in mind that changing the provisions of the Protocol — once adopted and ratified — will need new negotiations, the drawing-up of another protocol and subsequent signature and ratification by all Contracting States. For these reasons provisions pertaining to the internal functions and organisation of the Court should rather be laid down in the Rules of Procedure of the Court.
ix. It follows from this that it may be left open how the "referendars" who assist the judges are to be appointed. The words "chosen by them" in Article 25 should therefore be deleted.
x. It may not be necessary or desirable in all cases to separate the consideration of the question of admissibility from the consideration of merits. The word "shall" in the second sentence of Article 30 should therefore by replaced by "may".
8. The Assembly expresses the wish that these proposals be considered as a positive contribution to this most important activity and hopes that it will be closely associated with the final stages of the elaboration of the Protocol.
II. Explanatory memorandum
by Mr VOGEL
Contents Page
1. Introduction 6
2. The proposed reform — summary of the draft protocol 8
3. Questions left outstanding 9
4. Discussion of proposals 9
5. Conclusions 12
Chapter 1: Introduction
1.1. It has often been said that the supervisory bodies under the European Convention on Human Rights became the victims of their own success. They were set up in the early 1950s when there were a dozen member states of the Council of Europe and when one could expect a limited number of applications every year. All these applications were to be handled by a Commission, having a number of members equal to that of the Contracting States, and by a Court in which judges in respect of each of the member states were sitting. Both Commission and Court were part-time bodies with most of the members having full-time employments elsewhere as law-professors, advocates, judges, etc.
1.2. In the 1980s it became clear that the present system needed reform. The workload had become too heavy and there was a growing backlog of cases. Some applicants had to wait for more than two years before their first examination.
A solution might have been to turn the Commission and Court into full-time bodies. Yet it could easily be seen that, with the number of member states increasing, these bodies would grow bigger as well and that this would require 2 x 32 = 64 highly qualified and competent lawyers in 1993 and, possibly, eighty of them in the year 2000. In addition they would have to be served by sufficient experienced and qualified legal staff of the Council of Europe and it can easily be seen that all this would be very expensive.
1.3. At the same time it had become clear that the member states of the Council of Europe had come to accept the principle of judicial control of the fulfilment of their obligations under the Convention. Indeed in practice all the Convention states had consented not only to the competence of the Commission in respect of individual applications (Article 25 of the existing text to the Convention), but also the compulsory jurisdiction of the Court (Article 46 of the existing text of the Convention).
1.4. Thus the idea emerged to replace the existing Commission and Court of Human Rights by a new single Court. The idea gained momentum after it had been discussed on the basis of a report by the Swiss delegation at the first European Ministerial Conference on Human Rights held in Vienna in 1985. Subsequently the Committee of Ministers of the Council of Europe instructed the Steering Committee on Human Rights and its Committee of Experts for the Improvement of the Procedures under the European Convention on Human Rights to examine, as a matter of priority the possibility of introducing further improvements to the enforcement system of the Convention.
1.5. As far as the Parliamentary Assembly is concerned, the Committee on Legal Affairs and Human Rights followed the matter ever since the Vienna Conference. Its work led to the adoption of Recommendation 1087 (1988), in which the Assembly 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.
1.6. When, early in 1992, it appeared that the intergovernmental work was at a deadlock, given the fact that there was no clear majority for a single court, nor such majority for keeping the existing system in its present or modified form, the Committee on Legal Affairs and Human Rights, at my proposal, decided to hold a hearing which took place in June of that year. Subsequently, at the proposal of the committee, the Assembly adopted Recommendation 1194 (1992) in which it recommended that the Committee of Ministers take the necessary steps to reform the supervisory mechanism of the European Convention on Human Rights without delay and, in doing so, give clear preference to the proposal to create a single Court as a full-time body in place of the existing Commission and Court. Apparently this recommendation turned the scale and from then on there was a clear majority in favour of the single Court. The Committee of Ministers and its intergovernmental committees worked very hard in the first nine months of 1993 and, as a result of this work, concrete proposals for the reform of the Convention and a draft protocol introducing a single Court system could be put before the Council of Europe summit held in Vienna from 8 to 9 October 1993. In the final declaration of the conference the heads of state and government declared:
"... we have resolved to establish, as an integral part of the Convention, a single European Court of Human Rights to supersede the present controlling bodies.
We mandate the Committee of Ministers of the Council of Europe to finalise a draft protocol amending the European Convention for the Protection of Human Rights and Fundamental Freedoms on which substantial progress has been made, with a view to adopting a text and opening it for signature at its ministerial meeting in May 1994.
We will then ensure that this protocol is submitted for ratification at the earliest possible date."
1.7. Immediately after the summit the Committee of Ministers decided to consult officially the Parliamentary Assembly as well as the European Commission and the Court of Human Rights on this draft protocol, 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.
On 4 November 1993 the Committee of Ministers, at their 93rd session, "noted with satisfaction that their Deputies had already taken the necessary steps to enable the experts to finalise [the draft protocol] in time to be opened for signature at their 94th session in May 1994".
1.8. Informally, the Assembly and the Commission and Court were informed that it would be useful to have their opinions by the end of January 1994. This would enable the Committee of Ministers and its intergovernmental committees to finalise their work in due time for the ministerial meeting of the Committee of Ministers in May.
Chapter 2: The proposed reform — summary of the draft protocol1
The main features of the draft Protocol No. 11, may be summarised as follows:
i. Establishment of a single Court to supersede the existing controlling bodies.
ii. Election of the judges (one in respect of each Contracting Party — as one to each member state at present) for a period of six years (nine years at present) by the Assembly from three candidates proposed by each Contracting State. The term of office of the judges shall expire when they reach the age of seventy. Until now there has not been any age limit.
iii. In essence the proceedings and procedural guarantees under the Convention are preserved while being adapted to the single court system. These include an effective mechanism for the filtering of applications, an effective procedure to enable friendly settlements, and an appropriate structure to ensure the quality and consistency of the Court's case law and to enable a re-hearing in exceptional cases, for example those raising serious questions affecting the interpretation or application of the Convention. There is provision for the presence of the national judge in any such re-hearing.
iv. For consideration of the cases brought before it, the Court shall sit in committees of three (for decisions of admissibility), chambers of seven and a Grand Chamber of seventeen judges.
v. Inter-state applications shall always be dealt with by the Grand Chamber.
vi. The right to submit individual applications (until now an optional clause of the Convention) will be automatic.
vii. The Committee of Ministers will lose its role as a decision-taking body with regard to both individual and state applications (Article 32 of the existing text), but will continue to supervise the execution of the final judgments of the Court.
Chapter 3: Questions left outstanding
There are a number of specific matters on which there is still need for further consideration and final decision in the Steering Committee and the Committee of Ministers. Thus, it is considered that there has not been sufficient time to consider the provisions concerning the transitional period (Articles 2, 4 and 5 of the draft protocol). It appears that a majority of the members of the Steering Committee is in favour of the right of individual petition to be mandatory, yet some of the experts prefer it to remain optional. It is also still a matter for discussion whether there should be a special statute of the Court and which matters should be left entirely to the Court itself for inclusion in its rules of procedure. Although this formed part of the terms of reference of the Steering Committee, it has not yet arrived at final conclusions in respect of Advocates-General. Finally it is still necessary to finalise the explanatory report.
Chapter 4: Discussion of proposals
In the draft opinion which forms a part of this report a number of proposals are made with the aim of strengthening and improving the draft protocol. Not all of these proposals need further explanation, but it may be useful to do so for some of them.
4.1. Transitional period
In our opinion the new Human Rights Court should start with a clean sheet. As soon as the Protocol enters into force and the Court is set up it will have to elaborate its rules of procedure, elect its president and vice-presidents, set up its chambers and elect its registrar. It will have to deal immediately with all new applications and the cases referred to it in accordance with Article 5 paragraph 3 of the Protocol. No doubt this will give the Court plenty of work and there is no reason to overload it from the beginning and to make it start with a considerable backlog. For these reasons we believe that the Court should not take over cases which are half-way pending before any of the existing organs.
In Article 5 paragraph 2 of the draft protocol it is provided that the Commission shall continue to examine the cases which have been declared admissible by it before hand.
In our opinion, it should deal with all the cases pending whether they have been declared admissible or not. The time limit of eighteen months will therefore prove to be too short and should be extended to two and a half years (thirty months) after the entry into force of the protocol.
In Article 5 paragraph 5 of the draft protocol, it is provided that all cases pending before the Committee of Ministers, shall be terminated by the Committee of Ministers. In our opinion, this should also be the case for in cases pending before the existing court which should therefore remain in existence until it has exhausted all cases pending before it. This would be in conformity with the underlying principle of the present Article 40, paragraph 6 of the Convention which provides that judges, after their replacement, continue to deal with such cases as they already have under consideration. Yet it would not be desirable if there are two courts for a longer period of time and it is therefore proposed to grant eighteen months to the existing court to finish its cases.
4.2. Independence of the judges
One of the principles of the rule of law which is sacred to our member states is the independence of the judiciary. One of the safeguards for the independence of the judges is the rule that they cannot be removed. For that reason, in a number of our member states, judges are being appointed for life or until retirement. It is clear, however, that judges who must seek re-election in order to keep their office may be submitted to pressure. The longer their period of office, the less they may be influenced. We therefore think that it would be better to keep the present system in which judges are elected for a period of nine years rather than the proposed period of six years. Their independence would be strengthened even more if there is no possibility for re-election.
4.3. Age-limit
The Assembly welcomes the principle of an age-limit for judges and recalls its Recommendation 809 (1977) in which it called upon the governments not to put forward candidates over the age of seventy and suggested that judges should retire at the age of seventy-five.
However, the rule as laid down in the new Article 23 paragraph 6 appears rather too strict in a context where a degree of flexibility is desirable. It should therefore be formulated along the lines proposed by the Assembly in its above-mentioned recommendation.
4.4. Adequate justification
During the discussions in the Committee on Legal Affairs and Human Rights, Lord Kirkhill, the Chairman of the committee observed that he and, possibly, other members of the committee, from time to time received complaints by applicants to the Commission of Human Rights about the decisions taken. One of the complaints frequently made was that decisions, in particular those on admissibility, were not sufficiently reasoned. The committee feels that it is a fundamental element of justice that all decisions contain the reasons and arguments on which they are based and, for that reason, the Assembly is proposing a provision to this effect.
A great number of applications are, however, entirely unfounded and the arguments involved totally irrelevant. It would lay a heavy burden on the judges and on the Registry of the Court to refute every argument in detail. The committee therefore proposes the words "adequate justification" rather than "adequate reasoning".
4.5. Individual applications
In the present text of the European Convention on Human Rights the right to individual application is optional and made subject to a special declaration made for a specific or unlimited period by the member state concerned. The Committee on Legal Affairs and Human Rights very much welcomes that this provision has now become automatic (Article 35 of the draft protocol).
4.6. "Referendars"
According to the new Article 25 in the draft protocol, the judges may be assisted by referendars (référendaires) chosen by them. The Assembly can understand the basic thinking behind such a clause as it provides the Court with the possibility of recruiting young lawyers from member states of the Council of Europe to assist judges for a limited period of time. They could bring with them their familiarity with national law and after some years at the Court could return to their countries with a detailed knowledge of the case-law of the European Court of Human Rights. At the same time a référendaire system allows for some flexibility regarding individual contracts, which need no longer conform precisely to the existing establishment table of posts and functions for administrators and other staff of the Council of Europe.
It is, however, clear that members of the Secretariat of the Commission and of the Registry of the Court, whose duties currently correspond to those of référendaires, should be given the opportunity to become référendaires notwithstanding the fact that they have permanent contracts.
Finally it should be made clear that the référendaire, like any other staff of the new Court, will be recruited by the Court itself in its capacity as the appointing authority. To avoid any misunderstanding in this regard, it is therefore recommended that the words "chosen by them" should be deleted from Article 25 in the draft protocol.
4.7. Separate decision on admissibility
The requirement of a separate decision on admissibility in all cases (Article 30, second sentence) is not sufficiently flexible. In some cases such a decision may be useful, or even essential. There will however be others where it unnecessarily complicates and prolongs the proceedings. In its present form, Article 30, second sentence, is liable to run counter to the aim pursued by the reform, namely to make it possible for the Court to decide cases within a reasonable time.
4.8. Ratification
Although from the administrative and technical point of view, the establishment of a single court may not be easy, there are not many important political aspects to the draft protocol and it does not require adaptation of national legislation. For these reasons the draft protocol should be signed and ratified rapidly once it has been finalised. According to the timetable set by the Vienna Summit the Protocol will be opened for signature at the ministerial meeting of the Committee of Ministers in May 1994. The Committee on Legal Affairs and Human Rights feels that it is reasonable to expect that all member states will ratify the Protocol before the end of 1995 and that it would thus enter into force in the first half of 1996.
No doubt the Committee on Legal Affairs and Human Rights, the Committee on Parliamentary and Public Relations and the Assembly itself will do all they can to facilitate and promote the speedy ratification of the Protocol once it has been approved by the Committee of Ministers.
Chapter 5: Conclusions
5.1. In conclusion it should be stressed that the Committee on Legal Affairs and Human Rights fully supports draft Protocol No. 11 to the European Convention on Human Rights, notwithstanding the proposals and recommendations it is making in the draft opinion, it is submitting to the Assembly. These proposals and recommendations should be seen as the committee's contribution to strengthening and improving the text of the Protocol. The committee also welcomes the speed with which the draft protocol was elaborated once the green light had been given by the political organs of the Council of Europe. It expects that the draft protocol is to be finalised soon and opened for signature and ratification by member states.
Furthermore the committee expresses the wish that, during the last stages of elaboration, it may be closely associated with the work going on.
Reporting committee: Committee on Legal Affairs and Human Rights.
Budgetary implications for the Assembly: none.
Reference to committee: Doc 6974 and Reference No. 1910 of 4 November 1993.
Draft opinion unanimously adopted by the committee on 13 December 1993.
Members of the committee: Lord Kirkhill (Chairman), MM. Strimitzer, Jansson (Vice-Chairmen), Akarçali, Amaral, Arnalds, Bartodziej, Bindig, Borg, Bučar, Candal, Columberg, Croze, Deasy, Espersen, Fogaš, Franck, Fry, Fuhrmann (Alternate: Schwimmer), Galanos (Alternate: Hadjidemetriou), Guenov, Gundersen, Guzzetti, Hagård, Mrs Haller, Mr Hunault, Mrs Jaani, Mrs Janů, MM. Karcsay, Kempinaire, Mrs Lentz-Cornette (Alternate: Mrs Err), MM. Loutfi, Van der Maelen, Markiewicz, Mimaroǧlu (Alternate: Soysal), Oehry, Polli, Robles Fraga, Rodotà, Rokofyllos, Sakalas, von Schmude, Mrs Soutendijk-Van Appeldoorn, MM. Stamatis, Stoffelen, Tabajdi, Trojan, Vinçon, Vogel, Ward (Alternate: Rathbone), Zapatero, N... (Alternate: Frunda).
N.B. The names of those members took part in the meeting are printed in italics.
Secretaries to the committee: Mr Plate, Ms Coin and Ms Kleinsorge.