Doc. 8226
6 October 1998

Legal problems arising from the coexistence of the Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms and the European Convention on Human Rights

Motion for a resolution

presented by Mr Gross and others

This motion has not been discussed in the Assembly and commits only the members who have signed it

In 1995 seven of the twelve member states of the Commonwealth of Independent States signed a new Convention on Human Rights and Fundamental Freedoms (hereinafter "CIS Convention"). The CIS convention has not yet entered into force; it will do so when ratified by three contracting parties.

Three CIS member states are also members of the Council of Europe, namely Ukraine, Moldova and the Russian Federation, the only State to have ratified the CIS Convention, in November 1995.

The list of civil and political rights guaranteed by the CIS Convention, clearly inspired by the corresponding provisions in the European Convention on Human Rights (ECHR), the United Nations Covenant on Civil and Political Rights and also the American Convention on Human Rights, hardly differs from those listed by the ECHR.

Under the Regulations on the Human Rights Commission of the CIS, which is an integral part of the CIS Convention, the members of the Commission established by the CIS Convention are representatives of the States Parties; they are not elected but appointed by the latter.

The intergovernmental and political nature of the CIS Commission casts major doubts on its quasi-judicial nature. The protection and supervision machinery introduced by the CIS Convention, a priori not very effective and already inadequate as it stands, raises yet another problem: an application alleging a human rights violation, if already lodged with the CIS Commission, must be declared inadmissible by the European Court of Human Rights.

Under Article 27.1.b. of the ECHR, the Court in Strasbourg does not accept any individual application if it is substantially the same as a matter which has already been submitted to another procedure of international investigation or settlement.

In other words, an application brought before the Commission in Minsk excludes any application to the European Court of Human Rights.

The Assembly considers it necessary to avoid at all cost a situation where litigants seeking to have their rights upheld are refused their due simply because they made the wrong choice of international court.

It does believe, however, that the CIS Convention may be of some use to applicants who are nationals of CIS member states not belonging to the Council of Europe and who, owing to their geographical location or for other reasons, will not be able to enjoy the protection of the ECHR.

For these reasons, the Assembly recommends that the CIS States make arrangements to instruct the Commission set up under the CIS Convention to notify applicants, as soon as applications are received, that those applicants in a position to do so are entitled to raise their case with the European Court of Human Rights as long as they withdraw their application to the CIS Commission.

Signed : ¹

Gross, Switzerland, SOC

Antretter, Germany, SOC

Forni, France, SOC

Gjellerod, Denmark, SOC

Gusenbauer, Austria, SOC

Hagard, Sweden, EDG

Jäätteenmäki, Finland, LDR

Kuzmickas, Lithuania, EDG

Lachat, Switzerland, EPP/CD

Lentz-Cornette, Luxembourg, EPP/CD

Magnusson, Sweden, SOC

Marty, Switzerland, LDR

Mitterrand, France, SOC

Solonari, Moldova, SOC

Wohlwend, Liechtenstein, EPP/CD

¹        SOC: Socialist Group

      EPP/CD: Group of the European People’s Party

      EDG: European Democratic Group

      LDR : Liberal, Democratic and Reformers’ Group

      UEL: Group of the Unified European Left

      NR: not registered in a group