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CM(2000)133rev  / 27 October 2000 

Draft additional Protocol to the Framework Convention for the Protection of National Minorities (on the interpretation of the Convention)


Ministers' Deputies
CM Documents

CM(2000)133 (Restricted) 29 September 2000
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724 Meeting, 4 October 2000
4 Human rights

4.2 Draft additional Protocol to the Framework Convention for the Protection of National Minorities
(on the interpretation of the Convention)
Proposal by the Italian Chair

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The Framework Convention, which came into force in 1 February 1998, contains several references to the European Convention on Human Rights (the Rome Convention). In the preamble, the words "having regard to" the Rome Convention are used. Article 19 provides that the High Contracting Parties "undertake to respect and implement the principles enshrined in the present framework Convention making, where necessary, only those limitations ... provided for in international legal instruments, in particular the Convention for the Protection of Human Rights and Fundamental Freedoms". Article 23 provides that "The rights and freedoms flowing from the principles enshrined in the present framework Convention, in so far as they are the subject of a corresponding provision in the Convention for the Protection of Human Rights and Fundamental Freedoms or in the Protocols thereto, shall be understood so as to conform to the latter provisions".

 

Certain rules in the Framework Convention recognise, in respect of members of minorities, rights which replicate or further specify rights secured by the Rome Convention. For instance, Articles 7-9 of the Framework Convention echo the rights to freedom of association, expression, conscience and religion, for which Articles 9-11 of the Rome Convention already provide.

 

Many rules of the Framework Convention, however, provide for rights not referred to in the Rome Convention, for example, Articles 10-11 on the right to use a minority language, Article 13 on the right to set up and manage private training establishments, Article 16 which obliges Contracting Parties to refrain from altering the proportions of the population in areas inhabited by persons belonging to national minorities, etc.

 

The Framework Convention does not provide for a right to petition the European Court of Human Rights. However, acts constituting a violation of the rights secured by the Convention may be the subject of an application to the Court if they also constitute a violation of any of the rights secured by the European Convention on Human Rights.

 

In respect of rights secured by the Framework Convention which do not correspond to those secured by the European Convention on Human Rights, the Framework Convention does not prescribe any remedy before the Court, not even for the purpose of requesting the Court to give the Parties to the Convention an authoritative though not binding interpretation.  This gap is still more embarrassing considering that it has been filled in other more recent Council of Europe-sponsored conventions such as the Convention on Human Rights and Biomedicine.  It is precisely in order to concord with the model furnished by this Convention that the present proposal is made for a Protocol to the Framework Convention prescribing a non-binding advisory function for the European Court of Human Rights.


Since the Framework Convention is a Council of Europe Convention, the consultative competence which it is proposed to give the European Court of Human Rights does not pose any formal problem regarding access to the Court, nor does it require any modification of the Court's statutes as set out in the Rome Convention.  As the Court itself stated in an opinion given in the course of the drafting of the Convention on Biomedicine, it may receive requests for advisory opinions from governments of Parties to the Convention as long as this is not related to specific proceedings pending before a national court or the European Court of Justice – i.e. proceedings which could result in an application under the Rome Convention.

 

The wording of Article 1 of the proposed additional protocol, the text of which is taken directly from Article 29 of the Convention on Biomedicine, takes account of this point of view.

 

It will be for the Court to determine whether it will be appropriate to set up a special Chamber for the purposes foreseen in this proposal, or depending on the circumstances, which of its Chambers should be assigned this task.

 

 


ADDITIONAL PROTOCOL TO THE FRAMEWORK CONVENTION FOR THE PROTECTION OF NATIONAL MINORITIES

 

Interpretation of the Convention

 

Article 1[1]

 

The European Court of Human Rights may give, without direct reference to any specific proceedings pending in a court, advisory opinions on legal questions concerning the interpretation of the present Convention at the request of:

 

-           the Government of a Party, after having informed the other Parties;

 

-           the Committee set up by Article 26, by a decision adopted by a two-thirds majority of votes cast by members entitled to vote.

 

Article 2

 

This Protocol shall be open for signature by the Signatories to the Convention. It shall be subject to ratification, acceptance or approval. A Signatory may not ratify, accept or approve this Protocol unless it has previously or simultaneously ratified, accepted or approved the Convention. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.

 

Article 3

 

1.         This Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date on which five States, including at least four member States of the Council of Europe, have expressed their consent to be bound by the Protocol in accordance with the provisions of Article 2.

 

2.         In respect of any Signatory which subsequently expresses its consent to be bound by it, the Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date of the deposit of the instrument of ratification, acceptance or approval.

 

Article 4

 

1.         After the entry into force of this Protocol, any State which has acceded to the Convention may also accede to this Protocol.

 

2.         Accession shall be effected by the deposit with the Secretary General of the Council of Europe of an instrument of accession which shall take effect on the first day of the month following the expiration of a period of three months after the date of its deposit.

 

Article 5

 

1.         Any Party may at any time denounce this Protocol by means of a notification addressed to the Secretary General of the Council of Europe.

 

2.         Such denunciation shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of the notification by the Secretary General.

 

Article 6

 

The Secretary General of the Council of Europe shall notify the member States of the Council, the European Community, any Signatory, any Party and any other State which has been invited to accede to this Convention of:

 

a.         any signature;

 

b.         the deposit of any instrument of ratification, acceptance, approval or accession;

 

c.         any date of entry into force of this Protocol in accordance with Articles 3 and 4;

 

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

 

 

 

[1]               Text adapted from the Convention on Human Rights and Biomedicine (Article 29).

 



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