CM(2009)58add rev 29 April 20091
1056 Meeting, 6-7 May 2009
4 Human Rights
4.1 Steering Committee for Human Rights (CDDH) –
Guaranteeing the long-term effectiveness of the control system of the European Convention on Human Rights
i. Activity report “Guaranteeing the long-term effectiveness of the control system of the European Convention on Human Rights”
ii. CDDH final opinion on putting into practice certain procedures envisaged to increase the Court’s case-processing capacity
iii. Opinion of the CAHDI (transmitted to the CDDH) on the public international law aspects of the advisability and modalities of inviting the European Court of Human Rights to put into practice certain procedures which are already envisaged to increase the Court’s case-processing capacity, in particular the new single judge and committee procedures
Draft Explanatory Report
to Protocol No. 14 bis to the Convention for the Protection of Human Rights and Fundamental Freedoms
1. The urgent need to adjust the control mechanism of the 1950 European Convention on Human Rights (hereinafter referred to as “the Convention”) was cited as a principal reason for the adoption of Protocol No. 14 to the Convention in 2004. The continuing non-entry into force of Protocol No. 14, however, has made the situation faced by the European Court of Human Rights (hereinafter “the Court”) deteriorate yet further in the face of an ever-accelerating influx of new applications and a constantly growing backlog of cases. This unsustainable situation represents a grave threat to the effectiveness of the Court as the centre-piece of the European human rights protection system.
2. Pending the entry into force of Protocol No. 14, therefore, the
High Contracting Parties have Committee of Ministers has agreed to adopt a Protocol No. 14 bis, limited to those procedural measures contained in Protocol No. 14 that would be most rapidly effective in increasing the Court’s case-processing capacity, as a provisional interim measure.
I. The preparation of Protocol No. 14 bis
3. At the 14 October 2008 meeting of the Committee of Ministers’ Liaison Committee with the European Court of Human Rights (CL-CEDH), the President of the Court drew attention to the extremely serious situation facing the Court, and raised the issue of urgent implementation of certain procedural provisions of Protocol No. 14, particularly the single judge procedure and the three-judge committee for repetitive cases, which could increase the efficiency of the Court by 20-25%. The President noted that such an improvement, though not providing a definitive answer to the Court’s problem, would be an extremely useful contribution.
4. Following this meeting, on 19 November 2008 the Ministers’ Deputies requested the Steering Committee on Human Rights (CDDH) to give, before 1 December 2008, a preliminary opinion on the advisability and modalities of putting into practice certain procedures which are already envisaged to increase the Court’s case-processing capacity, in particular the new single-judge and committee procedures. It also requested the Committee of Legal Advisers on Public International Law (CAHDI) to give, by 21 March 2009, an opinion on the public international law aspects of the matter. Finally, it requested the CDDH to give a final opinion by 31 March 2009.
5. The CDDH and the CAHDI subsequently issued the various opinions as requested2. Both committees concluded that the seriousness of the threat to the control mechanism of the Convention meant that significant steps had to be taken at the earliest opportunity to enable the Court to respond effectively to its caseload. They both also concluded that, whilst the best solution remained entry into force of Protocol No. 14, implementation of the two procedures by means of a Protocol No. 14 bis, pending entry into force of Protocol No. 14, would be fully compatible with the principles of public international law.
6. The Committee of Ministers’ Rapporteur Group on Human Rights (GR-H), having examined the issue on the basis of the CDDH and CAHDI opinions’, elaborated the draft text of this Protocol in April 2009. On 16 April the Ministers’ Deputies decided to transmit a working draft text of the protocol to the Parliamentary Assembly for opinion; [this opinion was subsequently adopted at the Assembly’s April 2009 part-session. On 6 May 2009, the Ministers’ Deputies, having examined the Parliamentary Assembly’s opinion, approved the text of draft Protocol No. 14 bis and agreed to transmit it, accompanied by an Explanatory Report, for adoption to the 119th Ministerial Session of the Committee of Ministers (Madrid, 12 May 2009). The protocol was then formally adopted and it was decided to open it for signature on […].]
II. Procedural measures introduced by Protocol No. 14 bis into the control system of the European Convention on Human Rights
7. Intended only as a provisional, interim measure pending entry into force of Protocol No. 14, Protocol No. 14 bis is deliberately limited to the introduction of two procedural elements taken from Protocol No. 14 that will have the greatest and most immediate effect on the Court’s case-processing capacity: the introduction of the single-judge formation and the extended competence of three-judge committees. Whilst during preparatory work there was some discussion of the possibility of including other measures, the conclusion was soon reached that this would risk delaying adoption of the Protocol No. 14 bis.
8. The content of the following section is based on the Explanatory Report to Protocol No. 14, unless indicated otherwise. Further explanation of the background to Protocol No. 14 can be found in its Explanatory Report.
III. Comments on the provisions of the Protocol
Article 1 of the protocol
9. The text of this article is based on that of Article 1 of Protocol No. 9 to the Convention. As the Explanatory Report on Article 1 of Protocol No. 9 explains, this provision, although not strictly speaking necessary, serves to underline the distinction between this new optional Protocol and other earlier Protocols introducing changes of a procedural nature, the entry into force of which has been subject to ratification by all Parties to the Convention.
Article 2 of the protocol
Article 25 – Registry, legal secretaries and rapporteurs
10. A new paragraph 2 is added to Article 25 so as to introduce the function of rapporteur as a means of assisting the new single-judge formation provided for in Article 27. While it is not strictly necessary from a legal point of view to mention rapporteurs in the Convention text, it was none the less considered important to do so because of the novelty of rapporteur work being carried out by persons other than judges and because it will be indispensable to create these rapporteur functions in order to achieve the significant potential increase in filtering capacity which the institution of single-judge formations aims at. The members of the registry exercising rapporteur functions will assist the new single-judge formations. In principle, the single judge should be assisted by a rapporteur with knowledge of the language and the legal system of the respondent Party. The function of rapporteur will never be carried out by a judge in this context.
11. It will be for the Court to implement the new paragraph 2 by deciding, in particular, the number of rapporteurs needed and the manner and duration of appointment. On this point, it should be stressed that it would be advisable to diversify the recruitment channels for registry lawyers and rapporteurs. Without prejudice to the possibility to entrust existing registry lawyers with the rapporteur function, it would be desirable to reinforce the registry, for fixed periods, with lawyers having an appropriate practical experience in the functioning of their respective domestic legal systems. Since rapporteurs will form part of the Court’s registry, the usual appointment procedures and relevant staff regulations will apply. This would make it possible to increase the work capacity of the registry while allowing it to benefit from the domestic experience of these lawyers. Moreover, it is understood that the new function of rapporteur should be conferred on persons with a solid legal experience, expertise in the Convention and its case-law and a very good knowledge of at least one of the two official languages of the Council of Europe and who, like the other staff of the registry, meet the requirements of independence and impartiality.
Article 3 of the protocol
Article 27 – Single judge formation, committees, Chambers and Grand Chamber
12. The text of Article 27 has been amended in several respects. Firstly, a single-judge formation is introduced in paragraph 1 in the list of judicial formations of the Court and a new rule is inserted in a new paragraph 2 to the effect that a judge shall not sit as a single judge in cases concerning the High Contracting Party in respect of which he or she has been elected. The competence of single judges is defined in the amended Article 28. In the latter respect, reference is made to the explanations in paragraph 15 below.
13. Adequate assistance to single judges requires additional resources. The establishment of this system will thus lead to a significant increase in the Court’s filtering capacity, on the one hand, on account of the reduction, compared to the old committee practice, of the number of actors involved in the preparation and adoption of decisions (one judge instead of three; the new rapporteurs who could combine the functions of case-lawyer and rapporteur), and, on the other hand, because judges will be relieved of their rapporteur role when sitting in a single-judge formation and, finally, as a result of the multiplication of filtering formations operating simultaneously.
Article 4 of the protocol
Article 28 – Competence of single judges and of committees
14. Article 28 contains new provisions defining the competence of the new single-judge formation and extending the powers of three-judge committees.
15. Paragraphs 1-3 of the amended Article 28 set out the competence of the single-judge formations created by the amended Article 27, paragraph 1. It is specified that the competence of the single judge is limited to taking decisions of inadmissibility or decisions to strike the case out of the list “where such a decision can be taken without further examination”. This means that the judge will take such decisions only in clear-cut cases, where the inadmissibility of the application is manifest from the outset. Besides, it is recalled that, as was explained in paragraph 10 above, single-judge formations will be assisted by rapporteurs. The decision itself remains the sole responsibility of the judge. In case of doubt as to the admissibility, the judge will refer the application to a committee or a Chamber.
16. Paragraphs 4 and 5 of the amended Article 28 extend the powers of three-judge committees. Hitherto, these committees could, unanimously, declare applications inadmissible. Under the new paragraph 4.b of Article 28, they may now also, in a joint decision, declare individual applications admissible and decide on their merits, when the questions they raise concerning the interpretation or application of the Convention are covered by well-established case-law of the Court. “Well-established case-law” normally means case-law which has been consistently applied by a Chamber. Exceptionally, however, it is conceivable that a single judgment on a question of principle may constitute “well-established case-law”, particularly when the Grand Chamber has rendered it. This applies, in particular, to repetitive cases, which account for a significant proportion of the Court’s judgments (in 2008, over 70% of the Court’s judgments were identified as having a low importance level; these are essentially repetitive cases). Parties may, of course, contest the “well-established” character of case-law before the committee.
17. The new procedure is both simplified and accelerated, although it preserves the adversarial character of proceedings and the principle of judicial and collegiate decision-making on the merits. Compared to the ordinary adversarial proceedings before a Chamber, it will be a simplified and accelerated procedure in that the Court will simply bring the case (possibly a group of similar cases) to the respondent Party’s attention, pointing out that it concerns an issue which is already the subject of well-established case-law. Should the respondent Party agree with the Court’s position, the latter will be able to give its judgment very rapidly. The respondent Party may contest the application of Article 28, paragraph 4.b, for example, if it considers that domestic remedies have not been exhausted or that the case at issue differs from the applications which have resulted in the well-established case-law. However, it may never veto the use of this procedure which lies within the committee’s sole competence. The committee rules on all aspects of the case (admissibility, merits, just satisfaction) in a single judgment or decision. This procedure requires unanimity on each aspect. Failure to reach a unanimous decision counts as no decision, in which event the Chamber procedure applies (Article 29). It will then fall to the Chamber to decide whether all aspects of the case should be covered in a single judgment. Even when the committee initially intends to apply the procedure provided for in Article 28, paragraph 4.b, it may declare an application inadmissible under Article 28, paragraph 4.a. This may happen, for example, if the respondent Party has persuaded the committee that domestic remedies have not been exhausted.
18. The implementation of the new procedure will increase substantially the Court’s decision-making capacity and effectiveness, since many cases can be decided by three judges, instead of the seven currently required when judgments or decisions are given by a Chamber.
19. Even when a three-judge committee gives a judgment on the merits, the judge elected in respect of the High Contracting Party concerned will not be an ex officio member of the decision-making body, in contrast with the situation with regard to judgments on the merits under the Convention as it stands. The presence of this judge would not appear necessary, since committees will deal with cases on which well-established case-law exists. However, a committee may invite the judge elected in respect of the High Contracting Party concerned to replace one of its members as, in some cases, the presence of this judge may prove useful. For example, it may be felt that this judge, who is familiar with the legal system of the respondent Party, should join in taking the decision, particularly when such questions as exhaustion of domestic remedies need to be clarified. One of the factors which a committee may consider, in deciding whether to invite the judge elected in respect of the respondent Party to join it, is whether that Party has contested the applicability of paragraph 4.b. The reason why this factor has been explicitly mentioned in paragraph 6 is that it was considered important to have at least some reference in the Convention itself to the possibility for respondent Parties to contest the application of the simplified procedure (see paragraph 17 above). For example, a respondent Party may contest the new procedure on the basis that the case in question differs in some material respect from the established case-law cited. It is likely that the expertise of the “national judge” in domestic law and practice will be relevant to this issue and therefore helpful to the committee. Should this judge be absent or unable to sit, the procedure provided for in Article 27, paragraph 2 in fine applies.
20. It is for the Court, in its rules, to settle practical questions relating to the composition of three-judge committees and, more generally, to plan its working methods in a way that optimises the new procedure’s effectiveness.
Final and transitional provisions
Article 5 of the protocol
21. This article is one of the usual final clauses included in treaties prepared within the Council of Europe. This protocol does not contain any provisions on reservations. Like Protocol No. 14, this protocol excludes the making of reservations.
Article 6 of the protocol
22. The text of this article is taken from Article 7 of Protocol No. 9 to the Convention. It is based on the model final clauses approved by the Committee of Ministers and contains the provisions under which a member state of the Council of Europe may become bound by the Protocol. The number of states whose expression of consent to be bound is required for the protocol to enter into force was set very low (at three), in order to allow the protocol to enter into force as quickly as possible.
[Article 7 of the protocol
23. Article 7 of the protocol provides for a mechanism whereby a High Contracting Party may “opt in” to its provisional application pending its entry into force in respect of that High Contracting Party. It is intended to facilitate the earliest possible application of the protocol with respect to the largest possible number of High Contracting Parties, since domestic procedures prior to expression of consent to be bound may be lengthy.
Article 8 of the protocol
24. The first paragraph of this provision confirms that, upon entry into force *
[or provisional application ]* of this protocol, its provisions can be applied immediately to all applications pending with respect to High Contracting Parties for which it is in force * [or being applied on a provisional basis ]*. This is so as not to delay the impact of the system’s increased effectiveness which will result from the protocol.
25. The second paragraph is intended to cover the situation in which an application is brought against two or more High Contracting Parties, in respect of one or more of which the protocol is not in force *
[or being provisionally applied ]* [or in respect of which the relevant corresponding provisions of Protocol No. 14 are not being applied provisionally ]*. Since such an application could not be dealt with under two sets of procedures simultaneously, it was decided that it should be treated under the existing procedures (i.e. excluding the possibility of the single judge procedure or the new competence for three-judge committees).
Article 9 of the protocol
26. This article reflects the fact that the protocol is intended only as a provisional, interim measure pending the entry into force of Protocol No. 14. Since the two procedures introduced by the protocol are taken from Protocol No. 14, entry into force of the latter will in practice make no difference as regards the treatment of applications brought against states in respect of which Protocol No. 14 bis had been in force *
[or provisionally applied ]*.
Article 10 of the protocol
27. This article is one of the usual final clauses included in treaties prepared within the Council of Europe. *
[Its paragraph d. refers to the procedure established under Article 7 of the protocol for “opting in” to its provisional application (see paragraph 23 above) ]*.
Note 1 This document has been classified restricted at the date of issue; it will be declassified in accordance with Resolution Res(2001)6 on access to Council of Europe documents.
Note 2 See documents CDDH(2008)014 Addendum I for the CDDH Preliminary Opinion, CM(2009)56 add for the CAHDI Opinion and CM(2009)51 add for the CDDH Final Opinion. The CDDH’s Reflection Group (DH-S-GDR) also contributed to the analysis in the period between December 2008 and March 2009.
Note 3 ** These square brackets have been removed.