Ministers' Deputies / Rapporteur Groups
Rapporteur Group on human rights
GR-H(2009)7 9 April 20091
Putting into practice of certain procedures which are already envisaged to increase the Court’s case-processing capacity –
Option 3: substance, consequences, way forward
Information note from the Secretariat
1. At the meeting of the GR-H on 2 April 2009, and following requests from several delegations, the Chair invited the Secretariat to draft a document explaining in greater detail what "OPTION 3" would consist of, an option mentioned by the Steering Committee for Human Rights in its final Opinion on the putting into practice of certain procedures which are already envisaged to increase the Court's case-processing capacity [cf .CM(2009)51 add prov of 31 March 2009, § 19]. The present information note is intended to provide the Group with some information about the question raised and, on the same occasion, to facilitate subsequent discussions about the course to follow in order to make a speedy contribution to an increase in the Court's capacity to process the very large numbers of individual applications which are flooding in to, or are already pending at, the European Court of Human Rights.
2. It should be pointed out that, in accordance with the decision taken by the Ministers' Deputies on 18 November 2008, the Committee of Legal Advisers on Public International Law (CAHDI) and the Steering Committee for Human Rights (CDDH) issued their respective opinions in March 2009 on the arrangements for the putting into practice of certain procedures already envisaged in Protocol No. 14, that is, those concerning the single judge formation and the new competences of the three-judge Committee.
3. These two Committees highlighted two hypotheses, both sound from the perspective of public international law:
- Option 1: a Conference of the High Contracting Parties to the European Convention on Human Rights culminating in an agreement on provisional application of the relevant provisions of Protocol No. 14. Once this Agreement adopted by consensus, each State Party will have the right to accept, through a declaration, the provisional application of these provisions in its own respect;
- Option 2: adoption of a new legal instrument (Additional Protocol). The Protocol would be adopted by the Committee of Ministers by the usual majority of two-thirds. It would come into force after its ratification by a limited number of States.
4. However, in its Opinion, the CDDH mentioned a third possibility, which would exclude neither of these two options, and would seek instead the application of both of them in parallel (see the final Opinion of the CDDH, CM(2009)51 add prov, § 19).
5. In the framework of this third option, each Contracting Party to the ECHR would be free to choose the option which seemed to it to be the more appropriate and/or the one which would more rapidly be operational under its own constitutional system.
6. Thus, certain States Parties could use Option 1, while others would take the path of Option 2. Besides, nothing would prevent a Contracting Party from making use firstly of Option 1 and moving on to Option 2 afterwards (in that case Option 2 would replace Option 1 as far as that State is concerned). The two systems would coexist as two paths leading to the same practical result: the putting into practice of certain provisions included in Protocol No. 14, pending the latter’s entry into force.
7. At the meeting of the Liaison Committee with the European Court of Human Rights (CL-CEDH) of 31 March 2009, the President of the Court had, speaking on the latter's behalf, expressed the view that the measures to be taken should not lead to a multiplication of procedures, which would impede, more than it would assist, the functioning of the Court. Consequently, the measures taken to ease the Court's workload should, ultimately, lead at most to a dual arrangement. Firstly, that of the procedure currently applicable in pursuance of Protocol No. 11 to the ECHR, which would continue to be applied to the Contracting Parties which decided to follow neither of the two aforementioned options. Secondly, the arrangement resulting from the application of certain provisions envisaged in Protocol No. 14 to those Contracting Parties having accepted it, and this irrespective of whether they have opted for the path of provisional application or for that of Protocol No. 14bis. The President of the Court has, furthermore, confirmed that the coexistence of these two arrangements would not cause particular difficulty to the Court.
Consequently, whichever option is chosen, the measures taken with a view to the application of certain provisions of Protocol No. 14 will create only one additional procedural arrangement. The States which consent thereto will be bound by the same provisions of Protocol No. 14. The substantive provisions of both options 1 and 2 would indeed be identical.
8. However, by their very nature, options 1 and 2 call for different legal arrangements. This means that the nature of the commitment made by States Parties will necessarily differ, depending on whether they express their consent via one option or the other.
9. Option 3 makes it possible for States, the domestic law of which requires no new treaty, to choose option 1. It also enables the States which face constitutional or domestic-law difficulties in respect of consent to provisional application to them to take advantage of option 2 in order to satisfy the requirements of their respective domestic legal systems. The result would be the same: the Court would find itself in a position to follow the provisions of Protocol No. 14 relating to the single judge formation and the new competence of the three-judge committees when processing applications made against States Parties to Protocol No. 14 bis.
10. In respect of the way of taking forward this Option 3, the Deputies might wish to go through the following stages. The Deputies would first invite the Secretary General to convene a conference or meeting of the representatives of the States Parties to the European Convention on Human Rights, who would have to be endowed with the necessary powers. At the same time, the GR-H would agree on the text of an Agreement providing for the provisional application of the provisions of Protocol No. 14 relating to the single judge and the new competence of the three-judge committees. The Agreement would have to provide that the States which accept this provisional application shall notify this in writing to the Secretary General. Once the text of the Agreement is validated by the Deputies, it would be forwarded to the Conference of States Parties, with an invitation to adopt it in Madrid on 12 May 2009, at its meeting to be held in the margins of the 119th Ministerial Session. The first notifications could thus take place as soon as the Conference closes.
11. At the same time, the Rapporteur Group would negotiate the text of an Additional Protocol reiterating the provisions of Protocol No. 14 relating to the two procedures mentioned. Its content would, in substance, be the same as the agreement on provisional application mentioned in the previous paragraph. It should make provision for its entry into force once it has been ratified by a limited number of States. Once the Deputies will have decided on the definitive text of this Protocol, this item would be included on the agenda of the 119th Ministerial Session. On this occasion, the Committee of Ministers could adopt Protocol No. 14bis and decide to open it for signature at a date in the near future. Once the minimum number of ratifications has been reached, this instrument would make it possible to make use of the procedures concerned vis-à-vis applications introduced against States Parties. For certain States, it might even be possible to sign the Protocol without reservation as to ratification.
12. It would be appropriate to include, in both cases – be it provisional application Agreement or be it Additional Protocol - a "sunset” clause, providing that the entry into force of Protocol No. 14 will result into the repeal of both.
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.