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Reform of the Control Machinery under the European Convention on Human Rights: Protocol No. 11

Published online by Cambridge University Press:  27 February 2017

Rudolf Bernhardt
Rudolf Bernhardt*
Affiliation:
European Court of Human Rights
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Type
Current Developments
Information
American Journal of International Law , Volume 89 , Issue 1 , January 1995 , pp. 145 - 154
Copyright
Copyright © American Society of International Law 1995

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References

1 Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Restructuring the Control Machinery Established Thereby, May 11, 1994, reprinted in 33 ILM 943 (1994), 15 Hum. Rts. L.J. 86 (1994). For early descriptions and articles, see Explanatory Report, 33 ILM at 944; Andrew Drzemczewski & Jens Meyer-Ladewig, Principal characteristics of the new ECHR control mechanism, as established by Protocol No. 11, signed on 11 May 1994, 15 Hum. Rts. L.J. at 81; and Henry G. Schermers, The Eleventh Protocol to the European Convention on Human Rights, 19 Eur. L. Rev. 367 (1994).

For the Convention, opened for signature Nov. 4, 1950, see 213 UNTS 221, Council of Europe, European Convention on Human Rights: Collected Texts 3 (1987).

2 Until now interstate applications under Article 24 of the Convention have played a very limited role. Only in special situations are governments prepared to initiate formal proceedings in respect of the human rights situation in other countries. The first interstate application to the European Commission was introduced in 1956 by Greece against the United Kingdom in respect of Cyprus. The last such application was introduced in 1982 by some Scandinavian and Western European states against Turkey; it ended in a friendly settlement in 1985. The annual Survey of Activities and Statistics published by the European Commission of Human Rights contains a list of interstate applications.

Protocol No. 11 retains the option of submitting interstate applications. The existence of such recourse is expected to contribute to respect for human rights in the future.

3 This will be changed by Protocol No. 9 in the near future, but only for states that have ratified the Protocol. See Protocol No. 9 Broadening the Access to the Court for Individuals, Nov. 6, 1990, reprinted in 30 ILM 693 (1991).

4 To give two quite different examples: France accepted the right of individual petitions in 1981, and Turkey made the relevant declarations in 1987 and 1990.

5 The practice of the Commission is to distinguish between provisional files and registered applications. The former category also includes “applications” for which, after informal contacts, no further steps are necessary. In 1993, 9,323 provisional files were opened, but only 2,037 applications were finally registered. European Commission of Human Rights, Survey of Activities and Statistics (1993).

6 Further details can be found in the annual Survey of Activities published by the Registry of the European Court of Human Rights.

7 Protocol No. 8 (see text at note 12 infra) has brought some relief, but the overall situation is still unsatisfactory with respect to the delays. Protocol No. 8 on Procedures to Expedite Proceedings before the European Commission of Human Rights, Mar. 19, 1985, reprinted in 25 ILM 387 (1986).

8 The statistics of the Commission show that, from 1955 to 1993, 23,114 applications were registered, but only 1,445 were declared admissible. One explanation for this result is the fact that, under Article 27(2) of the Convention, an application can be found inadmissible if it is “manifestly ill-founded.”

9 According to the statistics for 1993, supra note 5, more than 100 applications have been registered against former socialist states.

10 Even if, legally, membership in the Council of Europe does not oblige a state also to become a party to the Convention on Human Rights, no state is now admitted to the Council without promising to ratify the Convention and to accept the jurisdiction under Articles 25 and 46. Although such promises are not necessarily binding, they have always been observed in recent practice.

11 Another practice is worth mentioning: before a state is admitted to the Council of Europe, the Parliamentary Assembly asks independent legal experts for an advisory opinion whether the legal order of the state concerned already conforms to European standards. Recent reports of this kind have been made available for Russia (Eur. Pari. Ass. Doc. AS/Bur/Russia (1994) 7), and Moldova (Eur. Pari. Ass. Doc. AS/Bur/Moldova (1994) 2).

12 Art. 20, para. 3 of the Convention, as amended by Protocol No. 8, supra note 7.

13 See Lawless Case, 1 Eur. Ct. H.R. (ser. A) (1960).

14 These and some other changes made by the Court itself in its Rules have occasionally been criticized as being incompatible with the Convention, but all states have eventually acquiesced in them.

15 Supra note 3. Article 44 of the text of the Convention, as amended by Protocol No. 9, provides that “persons, non-governmental organisations or groups of individuals having submitted a petition under Article 25 shall have the right to bring a case before the Court.” In such cases, a panel composed of three members of the Court can decide, by a unanimous vote, that the case shall not be considered by the Court (new Article 48 of the Convention).

16 See note 14 supra. For the Rules of Court, see Council of Europe, European Court of Human Rights, Rules of Court A and B (1994).

17 Rule 51, paragraph 5 provides that in exceptional cases the Grand Chamber may still relinquish jurisdiction in favor of the plenary Court. It is open to doubt whether this will ever happen.

18 See Explanatory Report, supra note 1, and the documents cited therein.

19 This system is still supported by prominent authors. See, e.g., Schermers, supra note 1.

20 Some observers assume that the great majority of states concerned will ratify as early as 1995; opponents of the Protocol hope that it will never come into force.

21 Since the present Court will be dissolved upon the entry into force of the Protocol and thus will not be able to decide cases already under consideration, the new Court will start with a considerable backlog.

22 See para. 115 of the Explanatory Report, supra note 1, 33 ILM at 958.

23 Most of these declarations are made only for a certain period and must be regularly renewed to remain effective. The legal possibility of not renewing a declaration is irrelevant at present for political reasons.

24 Since the new provision is in substance identical to the present Article 50, it can be assumed that the principles and rules developed by the present Court will remain valid.

25 See Meyer-Ladewig, supra note 1.

26 New Articles 28 and 29.

27 See supra note 8.

28 Since all judges should be full members of at least one chamber (appointed for a fixed period), the present number of judges would already require five chambers.

29 See Schermers, supra note 1, at 374.

30 New Article 23, para. 6.

31 The provisions on the election of judges will remain unchanged: Each high contracting party must submit a list with three candidates, and the Parliamentary Assembly of the Council of Europe is to elect one of them (at present Article 30; new Article 22).

32 If one may be permitted to quote a competent author, J. G. Merrills, The Development of International Law by the European Court of Human Rights 253 (2d ed. 1993), states:

It would be remarkable if, after more than a quarter of a century of activity, the Court had not contributed something to international legal culture. In our submission it has done far more and, through an ever-growing jurisprudence, has provided a remarkable demonstration of the role which courts can play in the elucidation and development of international law.