CM(2004)65 15 April 2004
881bis Meeting, 21 April 2004
1. General Questions
1.5 Committee of Ministers – Preparation of the 114th Session (Strasbourg, 12-13 May 2004)
Steering Committee for Human Rights (CDDH)
Guaranteeing the long-term effectiveness of the European Court of Human Rights -
Implementation of the Declaration adopted at its 112th Session (14-15 May 2003)
Final Activity Report
1. The European Ministerial Conference on Human Rights held in Rome in November 2000 adopted the Declaration: The European Convention on Human Rights at 50: What future for human rights protection in Europe? In this text, the Ministers reaffirmed in particular the central role of the Convention and its unique system of monitoring the protection of human rights in Europe and underlined its unifying effect.
2. They noted however that, having regard to the ever-increasing number of applications, it was indispensable that “urgent measures be taken to assist the Court in carrying out its functions and that an in-depth reflection be started as soon as possible on the various possibilities and options with a view to ensuring the effectiveness of the Court in the light of this new situation”.1
3. In February 2001, the Ministers' Deputies set up an Evaluation Group to consider ways of guaranteeing the effectiveness of the European Court of Human Rights. Concurrently, the Steering Committee for Human Rights (CDDH) set up a Reflection Group on the Reinforcement of the Human Rights Protection Mechanism. Its Activity Report was sent to the Evaluation Group in June 2001, so that the latter could take it into account in its work.2 For their part, the Deputies also undertook in 2001 a reflection on specific questions relating to the monitoring of the execution of judgments of the Court.
4. In November 2001, at its 109th Ministerial Session, the Committee of Ministers adopted the Declaration on “The Protection of Human Rights in Europe: Guaranteeing the long-term effectiveness of the European Court of Human Rights” 3. In this text, it welcomed the report submitted by the Evaluation Group and, with a view to giving it effect, it instructed the CDDH4 to (i) carry out a feasibility study of the most appropriate way to conduct the preliminary examination of applications5, particularly by reinforcing the filtering of applications, and (ii) to examine and, if appropriate, submit proposals for amendments of the Convention, notably on the basis of the recommendations in the report of the Evaluation Group6. On this occasion, it also invited the CDDH to accelerate the work in progress on measures that could be taken at national level.
5. In October 2002, the CDDH reported on progress in these two areas in an interim report.7
6. In November 2002, at its 111th Ministerial Session, the Committee of Ministers adopted a Declaration on “The Court of Human Rights for Europe”,8 in which it took note of the reflections of the CDDH and wished to be in a position to examine a set of concrete, coherent proposals at its May 2003 Ministerial Session 9 in the three following areas:
- Prevention of violations on a national level and improvement of domestic remedies;
- Optimisation of the efficiency of filtering and dealing with subsequent applications;
- Improvement and acceleration of the execution of judgments of the European Court of Human Rights.
8. In May 2003, at its 112th Ministerial Session, the Committee of Ministers adopted its Declaration “Guaranteeing the long-term effectiveness of the European Court of Human Rights”, in which it welcomed the CDDH's report and instructed the Ministers' Deputies to implement the proposals, taking account of certain issues referred to in the Declaration, so that it could examine the texts for adoption at its 114th session, in 2004. It also asked them to take account of other questions raised in the report, such as the possible accession of the European Union to the Convention, the term of office of judges of the Court, and the need to ensure that future amendments to the Convention were given effect as rapidly as possible.
9. In the light of these instructions, the CDDH continued its work on the following draft legal instruments:
(i) Draft Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention, with an explanatory report;
(ii) Draft Recommendation of the Committee of Ministers to member states on the European Convention on Human Rights in university education and professional training, with an explanatory memorandum;
(iii) Draft Recommendation of the Committee of Ministers to member states on verification of the compatibility of draft laws, existing legislation and administrative practices with the standards laid down in the European Convention on Human Rights, with an explanatory memorandum;
(iv) Draft Recommendation of the Committee of Ministers to member states on the improvement of domestic remedies, with an explanatory memorandum;
(v) Draft Resolution of the Committee of Ministers on judgments revealing an underlying systemic problem.
10. In November 2003 the CDDH submitted an interim activity report on this subject to the Committee of Ministers.16
11. In April 2004 the CDDH adopted this final report and submitted it to the Committee of Ministers. It contains all the above-mentioned draft legal instruments, together with a draft Declaration on “Ensuring the effective implementation of the European Convention on Human Rights at national and European level ”, for examination and adoption by the Committee of Ministers at the 114th Ministerial Session (12-13 May 2004).
12. The draft Declaration prepared by the CDDH for the Ministerial Session is the response to the Declaration of the Ministerial Conference in Rome. It contains a triple political commitment on behalf of the Committee of Ministers of the Council of Europe:
- Firstly, it urges member states to take all necessary steps to sign and ratify Protocol No. 14 as speedily as possible, so as to ensure its entry into force within two years of its opening for signature, and to implement speedily and effectively the above-mentioned recommendations.
- Secondly, it asks the Ministers' Deputies to take specific and effective measures to improve and accelerate the execution of the Court's judgments, notably those revealing an underlying systemic problem ; undertake a review, on a regular and transparent basis, of the implementation of the above-mentioned Recommendations with a view to improving the implementation of the Convention at national level ; take the necessary steps to ensure that adequate resources are directed to the rapid and efficient implementation of Protocol No. 14, in particular for the Court and its registry in the framework of the new mechanism for the filtering of applications.
- Finally, it invites the Secretary General of the Council of Europe and the States concerned to take the necessary steps to disseminate appropriately, in the national language(s), the Declaration and the various instruments mentioned in it.
13. This final activity report summarises the main results of the work done.
14. Concerning the drafting of Protocol No. 14, which was the most delicate and complex part of the process, it should be noted that the CDDH carefully examined the opinions and proposals submitted by the Parliamentary Assembly's Committee on Legal Affairs and Human Rights, the Court, the Commissioner for Human Rights and certain member states, as well as national human rights institutions and non-governmental organisations The CDDH set about its task in a transparent manner. Its reports, those of its reflection and drafting groups and those of its committee of experts were published. These various meetings were attended by representatives of the Parliamentary Assembly, the Court's registry , the Department for the Execution of Judgments and the Office of the Council of Europe Commissioner for Human Rights, who played an active part in their work. The CDDH and its subordinate bodies also made good use of some particularly rewarding exchanges of views, inter alia with non-governmental organisations or national judges. The Ministers' Deputies were closely involved throughout. Protocol No. 14 is thus the fruit of a collective reflection.
Section A – Prevention of violations at national level and improvement of domestic remedies
15. It became clear from the outset that a fundamental element of the effort to guarantee the long-term effectiveness of the control system set up by the Convention had to be an improvement in the prevention of violations of the Convention at national level. It was therefore decided to appeal for increased efforts from the member states to this end. The chosen method was to set up non-binding legal instruments to encourage member states to take effective national steps to ensure proper protection of Convention rights at the domestic level, in full conformity with the principle of subsidiarity and the obligations of member states under Article 1 of the Convention.
16. This work led to the preparation of the five recommendations mentioned in paragraphs 7 and 9 above. They aim in particular at improving the quality of national laws, the efficiency of remedies, including the reopening of domestic procedures to give effect to the Court judgments, and the awareness of the requirements of the Convention, including those ensuing from the judgments of the Court, by measures in the fields of publication, dissemination, education and training. The CDDH expressed the wish that the implementation be reviewed on a regular and transparent manner.
Section B - Optimising the effectiveness of filtering and subsequent processing of applications
17. It is worth noting that, unlike Protocol No. 11, draft Protocol No. 14 prepared by the CDDH does not radically alter the control system set up by the Convention. The changes concern the functioning rather than the nature of the system. They aim above all to improve it in order to give the Court the procedural tools and flexibility it needs to process all applications in a reasonable time, while allowing it to concentrate on the most important cases, which require as thorough a judicial examination as possible. These changes should also enable the Committee of Ministers to ensure swifter execution of the judgments and decisions of the Court (see below, Section C). To achieve this, amendments are made at three main areas:
- reinforcement of the Court's filtering capacity in respect of the numerous applications which are without foundation;
- a new admissibility criterion concerning cases in which the applicant has not suffered a significant disadvantage and which in terms of respect for human rights do not otherwise require an examination on the merits by the Court;
- a considerably simplified procedure for dealing with repetitive cases.
18. The CDDH considered that, together, these aspects of the reform will help to reduce the time the Court devotes to applications which are manifestly not admissible, thereby allowing it to concentrate on well-founded applications, particularly those which raise important human rights issues.
19. Furthermore, it should be noted that the draft protocol prepared by the CDDH provides henceforth for a single nine-year term of office for the judges, for the possibility of increasing the number of judges and a procedure for so doing, and for the possibility for the European Union to accede to the Convention. In response to a wish expressed by the Parliamentary Assembly, the CDDH has also devised a new procedure for selecting ad hoc judges, whereby they are selected by the President of the Court from a list submitted by each state party. The draft Protocol provides a transitional provision concerning the duration of the term of office of judges on the date of entry into force of the Protocol, so as to ensure that the renewal of judges takes place gradually.
20. The explanatory report, particularly paragraphs 34 to 48, gives an overview of the changes made to the control system of the Convention by Protocol No. 14.
21. It should be noted that, in addition to the changes proposed in the draft protocol, the CDDH submitted two other proposals to the Committee of Ministers in its 2003 report, which the Committee of Ministers accepted:
- Encouraging more frequent third party intervention by other states in cases of principle pending before the Court. Both the States Parties themselves and the Court should be more attentive to the possibilities for requesting and allowing such intervention. The Court could also adopt an annual report on trends in its case-law;
- Strengthening the registry of the Court to enable it to deal with the influx of cases whilst maintaining the quality of the judgments. The following measures could be envisaged: (i) recruiting experienced national lawyers for a determined period of time, in addition to the lawyers/international civil servants of the registry; (ii) increasing the research resources and other support staff available to judges in the exercise of their judicial functions; (iii) optimising the internal control functions of the registry in order to maintain the quality of the judgments.
Section C - Improving and accelerating the execution of the Court's judgments
22. The Rome Declaration not only emphasised that it falls in the first place to the member states to ensure that human rights are respected, in full implementation of their international commitments; it also stressed the obligation of member states to execute the Court's judgments.
23. First, it should be noted that the draft protocol prepared by the CDDH gives the Committee of Ministers new powers in its supervision of the execution of judgments (an expansion of the monitoring of the friendly settlements, the possibility of asking the Court to interpret a judgment, and even of referring the matter to the Court if it considers that the contracting party is refusing to comply with a judgment).
24. Furthermore, the CDDH submitted to the Committee of Ministers, in April 2004, a draft Resolution on judgments revealing an underlying systemic problem. And in its 2003 report, the CDDH submitted another three proposals, which the Committee of Ministers accepted:
- developing the Committee of Ministers' procedures and practice under Article 46, paragraph 2 of the Convention to give priority to the rapid execution of judgments revealing systemic problems (without detriment to the priority attention accorded to important other judgments) and to strengthen the Service of the execution of judgments;
- ensuring maximum publicity during the execution process in such cases;
- associating the Parliamentary Assembly more closely with the exercise.
25. It is important to note that the various recommendations that aim at improving the implementation of the Convention at national level also invite the member states to take measures to improve and accelerate the execution of judgments of the Court.
26. Finally, as accompanying measures, the CDDH recommended making optimum use of other existing institutions, mechanisms and activities in promoting the execution of judgments. In particular the CDDH mentioned:
- the Council of Europe Commissioner for Human Rights;
- the Secretary General of the Council of Europe (Article 52 of the Convention);
- the assistance and expertise of the Council of Europe and of the Venice Commission;
- other treaty bodies;
- the Parliamentary Assembly;
- the Committee of Ministers' monitoring system.
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27. With the adoption of this final activity report and the draft texts appended to it, the CDDH considers that it has fulfilled the ad hoc terms of reference given to it by the Ministers' Deputies.
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