Committee of experts on a simplified procedure for amendment of certain provisions of the European Convention on Human Rights (DH-PS)

Transcription

1 Committee of experts on a simplified procedure for amendment of certain provisions of the European Convention on Human Rights (DH-PS) Comments of the International Commission of Jurists, Amnesty International, Liberty, JUSTICE, the AIRE Centre and Interights 1. Introduction March 2011 The International Commission of Jurists (ICJ), Amnesty International, Liberty, JUSTICE, the AIRE Centre and Interights welcome this opportunity to contribute to the work of the DH-PS which has been given a mandate by the Committee of Ministers to examine proposals for simplified amendment of certain provisions of the Convention, including proposals for a Statute for the European Court of Human Rights. 1 The Committee s mandate follows the recommendation in the Interlaken Declaration and Action Plan on the Future of the Court that the Committee of Ministers examine the possibility of such a simplified procedure. 2 In principle, the organisations support the creation of a Statute or other procedure which would allow for simplified amendment of certain organisational provisions of Part II of the European Convention on Human Rights. The purpose of any such measures must be to maintain a strong Court with enhanced ability to protect the Convention rights, in fulfilment of its role under Article 19 ECHR to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto. Any changes to the founding and regulating documents of the Court should be designed to support the Court in delivering prompt and 1 Terms of reference of the Committee of Experts on a simplified procedure for amendment of certain provisions of the European Convention on Human Rights (DH-PS), Committee of Ministers of the Council of Europe, 1090th meeting 7 July See also 2 High Level Conference on the Future of the European Court of Human Rights Interlaken Declaration and Action Plan, 19 February 2010, para.g. 1

2 effective justice to individual applicants in accordance with the right of individual petition under Article 34 ECHR which, as the Interlaken Declaration has reaffirmed, is a cornerstone of the Convention system. 3 They should be designed to allow the Court to respond to changes in its caseload effectively and promptly. Preserving the independence of the Court must be a paramount consideration in the work of this Committee, as it considers matters that affect the competencies of Council of Europe institutions. The competence of the Court to regulate its day to day business and operating procedures, through the Rules of Court and practice directions, should not be constrained by the re-ordering of the legal framework for the Court. The role of other Council of Europe institutions, in particular the Parliamentary Assembly, will also need to be protected in any new amendment process for either a Statute or for elements of the Convention. Such amendment processes should respect principles of transparency and inclusiveness and the Parliamentary Assembly should be fully involved so as to ensure that there is no democratic deficit if the usual national 4 and international procedures for approval of amendments to the Convention no longer apply to some existing Convention provisions. 2. Scope of a Simplified Amendment procedure General Principles: the Architecture of the Court and its operation Two distinct issues arise in the reforms being considered by this Committee: the nature or type of instrument which is to regulate matters related to the organisation and procedures of the Court; and the means by which provisions on such matters can be amended. As to the different levels of regulation, the work of this Committee could lead either to a three-tier legal basis for the establishment, organisation and operation of the Court (Convention, Statute and Rules) or a two-tier basis (Convention (with some provisions of Part II subject to flexible amendment) and Rules). The essential elements of the Court system would remain within the Convention. These would include the Court s establishment; jurisdiction regarding individual petition, state complaints and advisory opinions; and provisions guaranteeing the independence of the Court. A statute, or section of the Convention subject to flexible amendment, would regulate aspects of the organisation of the Court; and the rules of Court would regulate the detail of the Court s structures and procedures. As to the means of amendment, in a three-tier system, some provisions of the Statute could be subject to a new flexible amendment procedure, while others could be subject to amendment only through the normal treaty amendment process that applies to the Convention itself. Amendment of the Rules of Court is entirely within the competence of the Court. 3 Interlaken Declaration, para.a.1 4 In this regard, as noted by Jakub Wolasiewicz in his paper presented to the 4th Warsaw Seminar, it should be recalled that the Constitutional systems of some member states of the Council of Europe require that any amendments having a material impact on human rights have to be subject to domestic legislative procedures. (see Some Remarks on Concepts of the Statute of the European Court of Human Rights and/or a Simplified Procedure for Amending Certain Provisions of the European Convention, at page 4). 2

3 The ICJ, Amnesty International, Interights, the AIRE Centre, Liberty and JUSTICE consider that, whichever model is adopted, it is essential that the existing treaty amendment process remain applicable to provisions of the Convention that are fundamental to the Court s role in the protection of the Convention rights, to the right of individual petition, and to the independence or autonomy of the Court. We agree with the Group of Wise Persons that provisions defining key institutional, structural and organisational elements of the judicial system of the Convention, namely the establishment of the Court, its jurisdiction and the status of its judges should remain subject to the normal procedures for amendment to the Convention. 5 A Statute could include, or a flexible amendment procedure could apply to, certain organisational provisions currently in Part II of the Convention which do not affect these fundamental principles. However a flexible amendment procedure should only be applied to provisions currently in the Convention where this would be likely to enhance the effectiveness of the Court. The organisations consider that the Rules of Court should retain their current scope, amendment of their provisions remaining within the competence of the Court. At this stage in the development of the Court, transferring large parts of the Court s rules to a statute so that the constitutional structure that regulates the Court mirrors those of other international courts should be resisted. Whilst the Convention or a statute should set the broad framework within which the Court operates, the Court should be left to decide how it gives effect to this through its rules. Transferring significant elements of the Rules of Court to a statute which would be open to amendment by a majority vote of Member States risks eroding the independence of the Court by removing its competence to regulate the detail of its own operating procedures in accordance with Article 25 ECHR. Detailed regulation of matters related to judicial office and functions, the role of the Registry, the composition of formations of the Court and Court procedures, including its deliberations, votes and decisions, should as a matter of principle be regulated by the Court itself. Court regulation of these matters protects the independence and autonomy of the Court, guarding against any interference or the appearance of interference with the day to day business of the Court, and against inappropriate influence on judges. Furthermore, transfer from the Rules of Court to a Statute would not serve the aims of greater flexibility or greater effectiveness in the operation of the Court. Quite the reverse, it would make changes to the Court s procedures more inflexible and difficult to adjust to changing circumstances. Regulation within the Rules of Court, of matters such as the detailed procedure of the Court, the composition of the Court s various formations, the role and appointment of Presidents and Vice-Presidents of the Court and its Chambers, the role and operation of the Registry, allow the Court to respond effectively and flexibly to changes in its workload. It has been suggested that some particularly significant elements of the Rules of Court would benefit from increased status or recognition by upgrading them to a Statute, without making them subject to flexible amendment procedure. Whilst we do not 5 Report of the Group of Wise Persons to the Committee of Ministers, CM (2006) 2-3, 15 November 2006, para.50. 3

4 consider this to be necessary, if elements of the rules are to be upgraded then we consider that their importance would best be reflected by transfer to the Convention itself, without their being made subject to flexible amendment. If this is done, it is essential that the terms of the new Convention provisions do not detract from the substance of the current rules, or the jurisprudence of the Court. Below, we address questions of the particular status of provisions of Part II of the Convention, the Rules of Court and other relevant Council of Europe instruments. The process involved in a flexible amendment procedure is considered in section 3. Part II of the European Convention on Human Rights Articles 19-23: We agree with the provisional views of DH-PS that these articles, which establish the Court, prescribe the number of judges, criteria for office, election of judges and their terms of office and dismissal should remain in the Convention, and should not be subject to flexible amendment. These provisions are fundamental to the Court s establishment and the independence of its judges. Article 24, registry and rapporteurs: We consider that para.1 of this Article on establishment of the Registry should remain in the Convention without being subject to flexible amendment. The Convention itself should establish the Registry, an essential institution of the Court, and should make clear that the Court controls the operation of the Registry, since this is essential to its effective functioning. Para.2, concerning the assistance of registry rapporteurs, is a procedural provision which we agree could be transferred to a Statute. Article 25 Plenary Court (Election of Presidents, Registrars, Establishment of Chambers, Rules of Court) We consider that this provision should remain in the Convention, and should not be subject to flexible amendment. In particular, we consider that the principle of judicial control of appointments of Court and Chamber Presidents and Registrars should be established by the Convention itself, as an important guarantee of judicial independence. It is also essential, as DH-PS recognised at its last meeting, that the Court s power to draw up its own rules should be established in the Convention itself. Article 26, Single-judge formation, committees, chambers and grand chambers. We consider that Article 26 should remain in the Convention. We take the view that it is very important that the Convention make explicit provision for the existence and constitution of the Grand Chamber. The Grand Chamber is an important institution, the Court at its most authoritative, and is crucial to ensuring the consistency of the Court s jurisprudence. We note that the provisional views of DH-PS are that Article 26 (4) (on the presence of a national judge in Chamber cases) should remain in the Convention, while the remainder of the Article could be moved to a Statute. However, Article 26.3, which establishes the principle that a single judge should not sit in a case against his or her own State, is of at least equal if not greater significance to Article 26.4, since it provides a safeguard for judicial independence, and should in our view also remain in the Convention without being subject to flexible amendment. 4

5 Articles 27-29, competence of single judges, committees; decisions by chambers: We favour Articles 27, 28 and 29, remaining in the Convention in order to secure the principle of judicial as opposed to administrative decision-making at admissibility stage. We note that DH-PS has discussed the possibility of retaining this principle in the Convention, while moving the detail of Articles to a Statute; in principle we would not oppose a proposal to this effect, provided that the Convention retains an unequivocal commitment that rulings on both the admissibility and the merits of an application will be made by judges. Article 30-31, relinquishment to and powers of the Grand Chamber. We agree that these provisions could be transferred to a Statute or made subject to flexible amendment. Articles 32-35, Jurisdiction of the Court in inter-state and individual applications, admissibility criteria: As DH-PS has recognised, these are fundamental provisions of the Convention which should not be included in a Statute or subject to flexible amendment. Article 36, Third party intervention: We consider it essential that this provision should remain in the Convention, without being subject to flexible amendment, since third party interventions have become important to the working of the Court. Furthermore, its flexible amendment would not serve the purpose of addressing the workload of the Court. Article 37, Striking out applications: We consider that Article 37 should remain in the Convention without being subject to flexible amendment. The power to strike out cases fundamentally affects the right of individual petition. Inclusion of Article 37 in a Statute could lead to the striking out of applications without the judicial consideration necessary to protect the right of individual petition and respect for the Convention rights. It could also lead to elaboration of the grounds on which applications can be struck out, potentially to the detriment of applicants right of individual petition. In particular, the final sentence of Article 37, The Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires protects a fundamental principle of the Convention system and should remain in the Convention without being subject to flexible amendment. Article 38, Examination of the case and Article 39, Friendly settlements: We agree that these articles could be transferred to a Statute or made subject to flexible amendment. Article 40, Public hearings and access to documents: We consider that this provision should remain in the Convention and without flexible amendment, to reinforce a strong legal basis for the principle of public hearings and access to documents. Article 41, Just satisfaction: This provision should remain in the Convention as necessary to make the right of individual petition effective and to implement the right to a remedy for violations of the Convention rights. Article 42, Judgments of Chambers and Article 43, Referral to the Grand Chamber We agree that these articles could be transferred to a Statute or made subject to flexible amendment. 5

6 Article 44, Final Judgments. We agree with the conclusion of DH-PS at its first meeting that this article should remain in the Convention without being subject to flexible amendment. Article 45, Reasons for judgments and decisions. We consider that this article should remain in the Convention without being subject to flexible amendment, given the importance to applicants of having reasoned decisions in their cases, and the significant contribution which separate and dissenting opinions have made to the jurisprudence of the Court. Modification of the practice of providing reasoned decisions would significantly affect the nature of individual application to the Court, and the capacity of the Court to vindicate the Convention rights and provide satisfaction for their violation. Article 46, Binding force and execution of judgments. Our view is that Article 46 should remain in the Convention. We would be concerned if this article or elements of it (as proposed at the first meeting of the DH-PS) were to be transferred to the Statute or made subject to flexible amendment. This could allow for the removal or weakening of reforms to the execution of judgments system which have only recently been introduced in Protocol 14. These provisions expand the jurisdiction of the Court, and affect the competencies of the Court and Committee of Ministers in the execution of judgements issues fundamental to the effective working of the Convention system which more properly included in the Convention. Article 47, Advisory opinions. We consider that Article 47 should remain in the Convention. Since the jurisdiction of the Court on individual applications and Inter-State applications is established in the Convention, the same should be the case for advisory opinions. Furthermore, flexible amendment of Article 47 is not necessary to reduce the Court s caseload. This was also the view of the Group of Wise Persons, which recommended that Article 47 remain in the Convention. Article 48, Advisory jurisdiction of the Court. We agree that this article could be included in the Statute or made subject to flexible amendment. Article 49, Reasons for advisory opinions. To be consistent with Article 45, which should remain in the Convention, Article 49 should also remain the Convention and should not be subject to flexible amendment. It establishes a point of principle that Court decisions should be reasoned. Furthermore, no interest of efficiency or flexibility would be served by making this provision subject to flexible amendment or having unreasoned advisory opinions. Article 50, Expenditure on the Court and Article 51, Privileges and immunities of judges We agree with the provisional view of DH-PS that these articles should remain in the Convention, without being made subject to flexible amendment. The Rules of Court Rule 29, appointment of ad hoc judges. This rule elaborates on Article 26.4 of the Convention which DH-PS has recommended should remain in the Convention, given the importance of the presence of a national judge to the functioning of the Court. It is our view that provisions on the appointment of judges and criteria for appointment should 6

7 remain in the Convention. Consistent with this principle, Rule 29 should remain in the rules. Rule 39: interim measures. We strongly oppose any move which would make Rule 39 on interim measures of the Court subject to flexible amendment by the Committee of Ministers. We note that the Parliamentary Assembly has recently issued a resolution expressing concern at the possible inclusion of Rule 39 in a Statute subject to such a process of amendment. 6 Rule 39 has been used effectively by the Court in ways essential to ensure the effective protection of Convention rights, and to avoid irreparable harm to the rights of the parties, for example by preventing the removal of an individual from a Member State pending a decision by the Court on respect for the prohibition of torture and other ill-treatment. The Grand Chamber of the Court has recognised the binding nature of interim measures under Rule 39 and their vital role in allowing the Court to secure the effective protection of Convention rights to applications in certain cases. In Mamatkulov v Turkey, it held that a failure to comply with interim measures will undermine the effectiveness of the right of individual application guaranteed by Article 34 and the State s formal undertaking in Article 1 to protect the rights and freedoms set forth in the Convention. 7 In light of this, the adoption of a simplified procedure that would facilitate changes to Rule 39 could be inconsistent with Article 34 and significantly impair the Court s authority and effectiveness in protecting Convention rights. As stated above, we do not consider that the elevation of Rule 39 to either a statute or the Convention is necessary to enhance its status, which is already established by the jurisprudence of the Grand Chamber of the Court. If Rule 39 is to be elevated however, it should be to a provision of the Convention, not subject to flexible amendment, and the text of the Convention provision should not detract from the standards and procedures on interim measures established in Rule 39 and in the Court s jurisprudence. Unilateral Declarations. The organisations do not consider it necessary or appropriate to include within a Statute rules on unilateral declarations, since this is a relatively new procedure on which the Court jurisprudence is still developing, which would be most appropriately addressed in the Rules of Court. The effects of more extensive use of the unilateral declaration procedure on the caseload of the Court are only now beginning to be assessed. Furthermore, we are concerned that inclusion of provision for unilateral declarations in a Statute, subject to flexible amendment, could result in undermining of the principle of individual judicial adjudication, to the detriment of applicants. 6 PACE Resolution 1788 (2011) Preventing harm to refugees and migrants in extradition and expulsion cases: Rule 39 indications by the European Court of Human Rights, adopted on 26 January 2011, para.6: Given the fundamental importance of the Court s power to order binding interim measures, the Assembly is concerned at proposals being discussed in the context of the follow-up to the Interlaken Conference on the future of the Court and the Convention s control mechanism, to include the Court s power to order interim measures in an instrument that could be subject to amendment by states through a simplified amendment procedure. 7 Mamatkulov and Askarov v Turkey, Judgment of the Grand Chamber of the European Court of Human Rights, Applications nos.4682/99 and 46951/99, para.125 7

8 Pilot Judgments. The Court has recently consulted the High Contracting Parties and civil society prior to drafting Rules for the pilot judgement procedure. 8 The Interlaken Declaration recognised the need for the Court to develop the procedure further and to evaluate its effects. 9 We do not consider it necessary or appropriate to include rules on pilot judgements within a Statute, given that they are still at an early stage of development. 10 We consider that at least for the foreseeable future the Court should retain the flexibility to develop Rules on the pilot judgment procedure without the additional constraints that elevation to a Statute would entail. 3. Amendment process The simplified amendment process that applies either to certain provisions of the Convention or to a Statute must involve sufficient checks and balances, by including a real role for the Court, the Parliamentary Assembly, and other institutions of the Council of Europe, in addition to a vote of a least a two-thirds majority of the Committee of Ministers. The process must be transparent, and involve consultation with National Institutions for the Promotion and Protection of Human Rights, NGOs and lawyers who practice regularly before the Court. It is particularly important that the Court as well as Member States should be able to propose amendments; and that, as stipulated by the Group of Wise Persons, 11 any amendment should be subject to the Court s approval. A substantial role should be afforded to the Parliamentary Assembly in the amendment process, with provision for at least consultation with PACE; consideration should also be given a power of veto to amendments. Full involvement of PACE in the process could help to redress the potential democratic deficit arising from the lesser role of national parliaments in a simplified amendment procedure that dispenses with normal national ratification processes. 8 Committee of Experts on Reform of the Court (DH-GDR) Report, 3 rd Meeting, 507 May 2010, DH-GDR (2010) 008 para.5. 9 Interlaken Declaration, para.d.7.c 10 Responding to Systematic Human Rights Violations, An Analysis of Pilot Judgments of the European Court of Human Rights and their Impact at a National Level, by Philip Leach, Helen Hardman, Svetlana Stephenson and Brad K Blitz (2010) 11 Report of the Group of Wise Persons to the Committee of Ministers, para.46 8