Ministers’ Deputies
CM Documents
CM(2003)149-rev (restricted) 31 October 2003
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113th Session
(Chişinău, 5-6 November 2003)
Guaranteeing the long-term effectiveness of the European Court of Human Rights- Implementation of the Declaration adopted by the Committee of Ministers at its 112th Session (14-15 May 2003)
Progress report submitted by the Chair of the Liaison Committee
with the European Court of Human Rights (CL-CEDH)
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Overview of progress achieved 1. The Steering Committee for Human Rights (CDDH) has allotted the work to two of its subsidiary bodies, the DH-PR and the Drafting Group CDDH-GDR. 2. The DH-PR has prepared three draft recommendations concerning measures to be taken at national level and a draft resolution inviting the European Court of Human Rights to facilitate execution of judgments by identifying systemic problems and their sources. The draft recommendations will be supplemented by appendices containing explanations and examples of good practices. 3. The CDDH-GDR is focusing on measures to be taken concerning the Court requiring amendment of the Convention. 4. So far, it has in particular worked on precise wording of amendments concerning :
5. It has also reached broad agreement that an amendment should be prepared instituting a single, non-renewable term of office of nine years for judges. 6. A sub-group of the CDDH-GDR is examining in greater depth the proposal that the Committee could bring proceedings against a Contracting Party for non-execution. 7. A further sub-group is studying the Court’s proposal relating to more efficient filtering of applications, together with the idea of making it possible to increase the number of judges. 8. The proposal to add a new admissibility requirement will be the subject of in-depth consideration at the CDDH-GDR’s forthcoming meeting (5-7 November 2003). 9. Finally, a third sub-group will be studying how account could be taken, in the amending protocol, of the possibility of a future accession to the Convention by the European Union. |
Introduction
At its 112th Ministerial Session (14-15 May 2003), the Committee of Ministers of the Council of Europe adopted the Declaration "Guaranteeing the long-term effectiveness of the European Court of Human Rights" welcoming the final report (CM(2003)55) of the Steering Committee for Human Rights (CDDH) containing a set of concrete proposals in this regard.
The Ministers endorsed the approach taken by the Steering Committee for Human Rights which had put forward proposals regrouped in three main sections:
- Section A: preventing violations at national level and improving domestic remedies;
- Section B: optimising the effectiveness of the filtering and the subsequent processing of applications before the Court;
- Section C: improving and accelerating execution of judgments of the Court.
The Ministers expressed their wish to be in a position to consider, with a view to its adoption, a draft amending Protocol to the European Convention on Human Rights and other relevant instruments arising from the implementation of their Declaration, at their 114th Session in 2004. At their 842nd meeting (June 2003), the Ministers’ Deputies assigned the Steering Committee of Human Rights terms of reference for this purpose and instructed the Chairman of the Liaison Committee with the European Court of Human Rights (CL-CEDH)to follow progress accomplished and to report back whenever necessary or useful.
Accordingly, I am presenting this progress report in order to provide, in time for the 113th Session of the Committee of Ministers (Chisinau, 5-6 November 2003), some brief information about the work carried out to date in the context of the CDDH since the 112th Session.
Progress so far
With a view to carrying out the various tasks assigned to it, the Steering Committee for Human Rights decided, at its 55th meeting (17-21 June 2003), that:
- work on the various draft instruments should be carried out in parallel by its Drafting Group (CDDH-GDR) and its Committee of experts for the improvement of procedures for the protection of human rights and that, if need be, these bodies could set up small working groups to focus on specific issues;
- tasks would be pragmatically be distributed as follows:
The Committee of experts for the improvement of procedures for the protection of human rights (DH-PR) would focus on the drafting of all the measures to be taken at national level (Section A of the CDDH final report) as well as on one of the measures to be taken concerning the execution of the judgments of the Court (Section C of the CDDH final report, proposal C. 1.);
The Drafting Group would instead concentrate on all the measures to be taken concerning the European Court of Human Rights requiring amendment of the Convention (Section B of the CDDH final report), including some amendments with regard to the execution of the judgments of the Court (Section C of the CDDH final report), as well as the issues mentioned in paragraph 12 of the above mentioned Declaration (i.e. possible accession of the European Union to the Convention; terms of office of judges of the Court; and the need to ensure that the future amendments to the Convention are given effect as soon as possible).
At its 54th meeting (10-12 September 2003), the DH-PR began to implement its tasks by adopting:
With regard to the measures to be taken at the national level:
i) A draft recommendation of the Committee of Ministers to member States on improving domestic remedies;
ii) A draft recommendation of the Committee of Ministers to member States on the verification of the compatibility of draft laws, existing legislation and administrative practices with the standards laid down in the European Convention on Human Rights;
iii) A draft recommendation of the Committee of Ministers to member States on the European Convention on Human Rights in university education and professional training;
With regard to the measures to be taken to accelerate the execution of the judgments of the Court:
iv) A draft resolution of the Committee of Ministers inviting the Court to identify in its judgments what it considers to be an underlying systemic problem and the source of this problem, so as to assist the process of execution of the judgment and the supervision thereof.
The DH-PR also decided that the three draft recommendations mentioned above will include Appendices containing explanations and examples of good practice emerging from the information submitted by the governmental experts to the Secretariat. A Working Group was established in order to prepare these Appendices with a view to submitting them to the DH-PR for adoption at its 55th meeting (18‑21 February 2004).
The Drafting Group at its first meeting on 6-8 October 2003 dealt with a preliminary draft protocol No. 14 to the Convention prepared by the Secretariat, as well as a position paper in which the Court expressed broad agreement with most of the proposals made by the CDDH.
In particular, the Drafting Group held a first in-depth discussion on the two main proposals contained in the position paper of the Court. In response to the Court's proposal to set up a mechanism for the filtering of applications, the Drafting Group agreed that it was necessary to take a closer look at possible ways to increase the efficiency of the filtering of applications. The Group identified a number of questions concerning the Court's proposal and set up a sub-group to examine it further. As concerns the Court's proposal to establish a special pilot judgment procedure (accelerated execution process, including an obligation for the State to create retroactive domestic remedies for repetitive cases, which would allow the Court to decline to examine them), the Drafting Group took the view that it was legally difficult to provide for a general legal obligation of this kind. It recognised the usefulness of such domestic remedies for repetitive cases, which should be retroactive wherever legally possible, but felt that this would be more appropriately be expressed through a Recommendation of the Committee of Ministers to member States (see above under DH-PR, point i). Where such remedies had been made available for repetitive cases, the pilot judgment procedure proposed by the Court could be followed without there being a need to amend the Convention.
In its review of preliminary draft protocol 14, the Drafting Group pursued its examination of the CDDH proposals requiring an amendment of the Convention. This concerns several of the proposals appearing in Sections B and C of the CDDH's Final Activity Report of April 2003. In particular, the Drafting Group:
- worked on the precise wording of the amendment giving new powers to Committees of three judges (CDDH proposal B.1.), the amendment concerning joint decisions on admissibility and merits of applications (CDDH proposal B.2.), and the amendments in respect of friendly settlements (CDDH proposals B.3 and C.3.); it also agreed on certain explanations to be given in the Explanatory Report to the future amending protocol in respect of these various amendments;
- reached broad agreement that an amendment should be prepared so as to provide for a single term of office of nine years for the Court’s judges; the modalities are to be discussed further;
- held a wide-ranging discussion on the proposal to amend the Convention to enable the Committee of Ministers, where a State persistently refuses to comply with a judgment, to institute proceedings before the Court’s Grand Chamber in order to obtain a finding by the Court that the State has infringed its obligation under Article 46 § 1 of the Convention (CDDH proposal C.4.) This is one of the two proposals on which the Declaration adopted at the 112th Session had requested the Ministers’ Deputies to report back (see § 11 of the Declaration). While some members of the Drafting Group expressed certain reservations about this proposal, it was decided to concentrate first on the precise conditions and modalities of such a new procedure. There was general agreement on the need to provide adequate safeguards to ensure that such proceedings would be limited to the highly exceptional situation of deliberate non-compliance with a judgment as well as the need to define the Court’s role in precise terms in order to avoid a possible confusion with the Committee of Ministers’ role of supervising the execution of judgments. Several specific suggestions were made on these points (including that of requiring that such a procedure be instituted by a qualified majority decision of the Committee of Ministers); they will be examined further in a sub-group;
- held an extensive discussion about the merits of the proposal to make it possible in the future to increase by a unanimous decision of the Committee of Ministers the number of judges of the Court (CDDH proposal B.7.), the other proposal on which the Declaration of the 112th Session has requested the Ministers’ Deputies to report back (see § 9 of the Declaration). The Drafting Group focused in particular on the tasks that such extra judges might have: filtering of cases or work in Chambers? It felt that this question was closely linked to the Court’s proposal to set up a separate filtering mechanism. If the latter proposal were to be retained, it would seem appropriate to involve any future extra judges in that filtering work. Nevertheless, reservations were expressed by some members of the Drafting Group, some of which in the view of others could be overcome by procedural safeguards to ensure that any future decision to increase the number of judges be based on purely objective grounds and that such extra judges would be elected by the Parliamentary Assembly. The Drafting Group agreed that its sub-group on filtering should examine this proposal further;
- for lack of time, was unable to work further on the proposal to add a new admissibility requirement to Article 35 of the Convention (CDDH proposal B.4.). It was noted that the Court had not been able to reach a common view on this proposal. The Drafting Group took note with interest of a recent new proposal submitted by the Austrian delegation (inadmissibility if it appears from the file that the object of the application has been duly examined by a domestic tribunal according to the Convention and in the light of the Court’s case-law, unless respect for human rights as defined in the Convention requires a further examination of the application or the case raises a serious question affecting the interpretation or application of the Convention or a serious issue of general importance). It agreed to examine the proposal to add a new admissibility requirement further at its next meeting.
The Drafting Group also agreed to set up at a later stage a sub-group to examine how account could be taken, in the amending protocol to the Convention, of the possibility of a future accession to the Convention by the European Union.
Next stages
The Committee of Legal Affairs and Human Rights of the Parliamentary Assembly plans to adopt a position on the CDDH proposals at its meeting on 3 November 2003. A Representative of that Committee will present it at the next plenary meeting of the CDDH.
The Drafting Group of the CDDH will hold its next meeting on 5-7 November 2003 and pursue its examination of the issues outlined above.
The CDDH itself will adopt an interim report on the reform at its next plenary meeting on 18-21 November 2003 which it will transmit to the Ministers’ Deputies and to the Court, the Parliamentary Assembly and the Commissioner for Human Rights. The interim report will also be circulated to interested non-governmental organisations, with a view to a consultation meeting with NGOs planned for early 2004. The CDDH hopes to receive comments on the interim report by the end of January 2004, so that they can be examined during the preparation of the Final Activity report of the CDDH, which it expects to adopt in April 2004, in accordance with the time-table fixed by Ministers at their 112th Session.