Ministers' Deputies / Working Parties
Ad hoc working party on the follow-up process
to the Interlaken Declaration
GT-SUIVI.Interlaken(2010)CB5 5 July 20101
Meeting of 29 June 2010
1. The Ad hoc working party on the follow-up process to the Interlaken Declaration (GT-SUIVI.Interlaken), chaired by Ambassador Eleanor FULLER, Permanent Representative of the United Kingdom, considered the following items appearing in the convocation (GT-SUIVI.Interlaken(2010)OJ5 rev).
1. Examination of the first report of the CDDH concerning the follow-up to the Interlaken Declaration and Action Plan
2. The Chair informed the working party that she had attended the CDDH meeting during the discussions on the Interlaken follow-up. She noted that the CDDH report (document GT-SUIVI.Interlaken(2010)7) contained a chapter relating to “Specific points requiring further clarification and/or instructions from the Committee of Ministers. This chapter covered four issues, i.e. (a) access to the Court – fees for the applicants; (b) proposals for making it possible to simplify amendment of the Convention’s provisions on organisational issues; (c) election of judges and (d) execution of Court judgments and its supervision by the Committee of Ministers. As agenda items 3 and 4 covered the two latter issues, she suggested that they be considered under the relevant items. Finally, she drew the working party’s attention to the contribution received by a group of NGOs that had been distributed under the reference DD(2010)341.
(a) Access to the Court – fees for the applicants
3. By way of introduction, the Director General for Human Rights and Legal Affairs indicated that this issue had been the subject of long discussions in the CDDH, where opinions were divided. The CDDH would now like to know whether the working party considered it useful that it continue its examination of the issue of fees. If so, the CDDH would also like to be provided with orientations on how to refine its further work on this issue.
4. Some delegations were of the opinion that a political decision should now be taken on this issue. On the other hand, a large number of delegations were in favour of asking the CDDH to continue its work on fees for applicants in order for the Committee of Ministers to take an informed decision. The view was held that any fee to be introduced should not be of such an amount as to deter applicants; the right to individual application must not be curtailed. Other delegations stated, however, that deterring manifestly inadmissible applications was part of the purpose with fees. The very large number of such applications was referred to in this context. It was pointed out that a cost/benefit analysis would be necessary and that the exceptions to the requirement to pay a fee should be identified with an estimate as to how much the administration of the system would cost. It would also have to be clarified whether amendments to the Convention would be needed. A number of delegations underlined that the question of Court fees was closely linked to the issue of comprehensive and objective information to applicants about the Court’s case-law and admissibility criteria. Two delegations also considered that it was linked to the questions of languages for applications and of the representation of applicants. One delegation underlined that in order to consider the issue further, the CDDH would need statistical information on the grounds on which applications were declared inadmissible and on the proportion of applications that were prepared by legal representatives. Finally, it was suggested that the CDDH takes into account the afore-mentioned contribution received from a group of NGOs.
5. In reply to a question, the Registrar of the Court stated that the introduction of fees would have an impact on all applications. It was difficult to assess what the impact would be; this would depend on the level of the fee. The advantage of a study could be to examine a case where a fee had been introduced.
6. The Chair concluded that a vast majority of delegations were in favour of continuing work on the issue of fees. She noted that more information was necessary before any decision could be taken. Clarification as to how fees would affect the right to individual petition was needed. Issues relating to costs and benefits also needed to be clarified.
(b) Proposals for making it possible to simplify amendment of the Convention’s provisions on organisational issues
7. As an introduction, the Director General for Human Rights and Legal Affairs explained that the CDDH was seeking guidance as to whether it could give a somewhat broader interpretation to the request that had been made to it “to elaborate … proposals for making it possible to simplify amendment of the Convention’s provisions on organisational issues.” A number of CDDH experts had expressed the view that issues falling outside the scope of the Convention would also deserve to be addressed, for example certain provisions of the Rules of Court, notably Rule 39, as well as unilateral declarations and the pilot judgment procedure. The CDDH had also invited the Committee of Ministers to approve draft terms of reference for a Committee of experts to work out a simplified procedure for amendment of certain provisions of the Convention (Appendix V of the CDDH report). Should the Committee of Ministers prefer the broader scope for the CDDH’s work on this issue, the square brackets should be deleted in point 4.ii. of the draft terms of reference.
8. In the discussion that followed, a majority of delegations favoured the broader approach. On the other hand, some delegations stated that as the issue of the Court’s efficiency was presently the main concern, the task of the expert committee should rather be limited in accordance with the Interlaken Declaration. The need for a time-limit for the work was emphasised and the deadline of 15 April 2012, as proposed in the draft terms of reference, was approved.
9. The Chair concluded that a majority of delegations favoured a broader approach to the CDDH’s future work on this issue and that the draft terms of reference could therefore be transmitted to the Deputies for adoption without further discussion (in the box) at their 1090th meeting (7 July 2010) while deleting the square brackets and keeping the text in point 4.ii (see document CM/Notes/1090/1.10).
2. Examination of ways of reinforcing the efficiency of the supervision of the execution of the judgments and decisions of the European Court of Human Rights
10. The Chair recalled the deadline of December 2010 that had been given by the Ministers at the May Ministerial Session for dealing with this item. She noted that a very constructive discussion had taken place at the Deputies’ human rights meeting of June 2010. In the light of the debate and of written contributions received from delegations, the Secretariat had updated the relevant working document (CM/Inf(2010)28 rev).
11. Introducing the revised working document, the Head of the Execution Department underlined that during their human rights meeting, the Deputies had emphasised the need for prioritised and ranked supervision. They had supported the principle of continuous supervision operating according to a twin track approach, with simplified supervision and enhanced supervision (paragraphs 7-9 of the document). Bridges between the two supervision methods were furthermore necessary. The Deputies had also raised the idea of a simplified treatment of the supervision of payment of just satisfaction. The Secretariat’s document did not yet contain operational proposals. Depending on the result of the working party’s discussions, such operational proposals would be made for the Deputies’ human rights meeting on 14-15 September. The Secretariat would also like to hear the working party’s comments on paragraphs 19, 21 and 22 of the document. Finally, it asked for declassification of the working document so that it could be noted by the various bodies involved in the Interlaken process.
12. There was broad support among delegations for the continuous supervision and the twin track approach. It was noted that clear criteria for moving a case from one group to another needed to be established. One delegation expressed the view that the idea of action plans did not need to be reflected in the Rules even though they would form part of the procedure, the reason being that the effect of such action plans was unsure. A number of delegations underlined that the responsibility for the execution of judgments should remain with the Committee of Ministers and were therefore reluctant to endorse the suggestions made in paragraph 19. It was however pointed out that the Committee of Ministers could draw the attention of the bodies referred to in this paragraph to systematic problems that occur during the supervision. It should be possible to draw the attention of national parliaments to such issues. One delegation asked that the idea of smaller working groups be reflected in the detailed proposals to be elaborated by the Secretariat and be examined further (paragraph 22). This proposal was met with hesitation by other delegations as the supervision of the execution of Court judgments was the collective responsibility of the whole Committee of Ministers and the publicity created around the human rights meetings was considered to be useful. Generally, delegations did not support changing the frequency of human rights meetings (paragraph 22). It was considered that the need for special arrangements for the execution of unilateral declarations should be reflected in more detail in the working document and be further discussed. Some delegations expressed hesitation as to the CDDH’s proposal to establish a hybrid working group (representatives of the Committee of Ministers, the DH-PR and the Execution Department) (paragraph 23) at this stage, whereas other delegations supported it. The working party supported the declassification of the working document (paragraph 26). A couple of delegations noted that the supervision of payment of just satisfaction should not depend on complaints from the applicants, the key issue is to depart from a detailed control in every case.
13. The Chair concluded that the discussion confirmed the broad support for the twin track approach. The various comments made on specific paragraphs of the working document would be taken into account by the Secretariat in the elaboration of the detailed proposals for the Deputies’ human rights meeting in September. She noted that the Group agreed on declassifying the working document. As for the question of the establishment of a hybrid working group, the Chair considered that this procedural issue could be decided at the next meeting should it become apparent that technical drafting work would be necessary, following the more detailed discussion on substantive issues to be held at the human rights meeting in September.
3. Election of Judges to the European Court of Human Rights
14. The Chair recalled the letter sent by the President of the Court to the Permanent Representatives of member states on 9 June regarding the election of judges to the Court. She drew attention to the memorandum prepared by the Registry of the Court (document GT-SUIVI.Interlaken(2010)8) suggesting that an advisory panel of experts be set up to evaluate candidatures to the post of judge to the Court.
15. The Registrar of the Court recalled that in his letter the President of the Court had proposed that a panel be set up to advise governments on candidatures for the election of judges before they are submitted to the Parliamentary Assembly. He had also indicated that he would raise the issue with the President of the Parliamentary Assembly. The President of the Court had now discussed his proposal with both the President of the Assembly and the Chair of its sub-committee for the election of judges. The former had stated that he supported the initiative. On 25 June, the Bureau of the Assembly had referred the matter to its Committee on Legal Affairs and Human Rights, which would prepare a report for the October session. The Registrar referred to the document prepared by the Registry setting out further details on the creation of such a panel. He explained that inspiration had been drawn from the proposals of the Wise Persons and of the Secretary General, but also, in particular, from the system that was recently introduced for the Luxembourg Court as a result of the Lisbon Treaty. The mandate of the panel and its operation would need to be adapted to the specificities of the Strasbourg system. For example, no need for interviews of the candidates by the panel as they were interviewed by the Assembly. The examination by the panel should be an obligatory step in the procedure and its opinion would be passed on to the Assembly only if states would not follow its conclusions. The President of the Court had indicated that he could make detailed proposals to the Committee of Ministers about the operation of the panel and the appointment of its members. The decisions would be for the Committee of Ministers to take. The Registrar finally explained that the panel set up for the Luxembourg Court had started its work in March 2010 and had so far held 4 meetings and rendered 17 unanimous opinions, 4 of which concerned new appointments. Out of these, 2 had been negative. All opinions had been followed by the governments of the member states concerned. The total cost of the panel (one meeting a year) would be approximately 12 000 euros.
16. A large number of delegations expressed their interest in the proposed panel and in receiving a more elaborated proposal. They noted that it was timely as elections would be held in the coming year. The importance of the independence of the panel was stressed. A couple of delegations asked about the legal framework for the creation of the panel, recalling that for the Luxembourg Court it was the Lisbon Treaty. A couple of other delegations asked for a wider approach to the issue of the election of judges. One delegation questioned whether a panel of experts would be able to convince parliamentarians. It considered that the candidatures should be examined by the Committee of Ministers. On the composition of the panel, one delegation emphasised the need for geographical balance and considered that one panel member should be from the state in respect of which the judge was to be elected. Another delegation explained that it already had a panel at the national level and was concerned about possible contradictory results.
17. With respect to the proposals made in the CDDH report (document GT-SUIVI.Interlaken(2010)7), one delegation considered that there was added value in a Committee of Ministers Recommendation on this issue accompanied by a compilation of best practices at the national level, although another delegation stated that it was not convinced of this. It was noted that a consolidated version of the various recommendations made by the Assembly would be useful.
18. In reply to some of the questions raised, the Registrar of the Court stated that the legal basis for the panel would be a decision of the Committee of Ministers. There was no need for any changes to the Convention. The Interlaken Declaration raised also other issues in relation to the election of judges that should be examined. The proposed panel would improve the situation at a relatively low cost. It was not intended that the panel would make any ranking of the candidates. It may be envisaged that it would interview candidates in exceptional circumstances.
19. The Director General for Human Rights and Legal Affairs confirmed that the legal basis for the panel would be a decision of the Committee of Ministers. There would not be a legal obligation to submit the lists to the panel, but all member states had indicated their support for the Interlaken Declaration and could therefore be expected to submit their lists. He noted that the CDDH’s proposals concerning the election of judges were complementary to the proposal for a panel. He finally explained that the exchanges of views on candidates within the Committee of Ministers that had taken place a few years ago had never been efficient, which was why the Committee had abandoned this system.
20. The Chair concluded that there was general agreement that the issue raised by the President of the Court was important and that action was needed. His initiative had been welcomed, including his consultation of the Assembly to hear its reaction. The urgency of the matter and the need to act rapidly had been stressed. It had also been recognised that this was only one aspect of the issue of the election of judges and that other initiatives could also be looked at later. The working party agreed to invite the Secretariat to elaborate a detailed proposal for consideration at its next meeting. The Chair finally noted that there were some doubts on the elaboration of a recommendation on national selection procedures as opposed to a compilation of best practices at the national level, which had also been proposed by the CDDH. Finally, support had been expressed for a compilation of the texts of the Parliamentary Assembly.
4. Any other business
21. The Polish delegation stated that the Polish authorities wished to invite the members of the working party to the 4th Warsaw seminar which would take place on 9-10 September 2010. The main topics of the seminar would be the concept of the general domestic remedy and the procedure for simplified amendments to the Convention in the post-Interlaken process.
22. One delegation underlined the importance of fixing before the end of the year a roadmap for the work of the group in 2011, so that the latter can prepare in due time the decisions to be adopted at the next Ministerial Session. It noted that the group may have to discuss a global package at some point. The Chair took note of this suggestion and indicated that she would bear it mind for the organisation of the future work of the group.
5. Date of the next meeting
22. The next meeting would be held on Tuesday, 12 October 2010 at 3 pm.
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.