Draft Protocol No. 14 bis to the Convention for the Protection of Human Rights and Fundamental Freedoms
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly debate on 30 April 2009
(16th Sitting) (see Doc.
11864, request for an opinion, and Doc. 11879, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr De Vries). Text
adopted by the Assembly on 30 April 2009 (16th Sitting).
1. The Parliamentary
Assembly attaches the utmost importance to the functioning of the
European Court of Human Rights (the Court), whose effectiveness
is being seriously threatened in the face of, inter
alia, an ever-accelerating influx of new applications
and a constantly growing backlog of cases. It therefore welcomes the
initiative taken by the Committee of Ministers to adopt, as soon
as practicable, draft Protocol No. 14 bis which
will increase the Court’s case-processing capacity pending entry
into force of Protocol No. 14 to the European Convention on Human
Rights (ETS No. 194).
2. The Assembly also notes, in this connection, the parallel
initiative to foresee the provisional application of provisions
in Protocol No. 14 bis by
means of a declaration to be made by a conference of High Contracting Parties
to the European Convention on Human Rights (ETS No. 5) on the margins
of the 119th Ministerial Session in Madrid on 12 May 2009, an initiative
to which it fully subscribes. This would permit the Court to apply these
provisions to certain states parties to the Convention prior to
or independently of the entry into force of Protocol No. 14 bis.
3. The Assembly recalls, in this connection, the Warsaw Declaration
of 17 May 2005, in which all the heads of state and government of
the Council of Europe member states strongly committed themselves
to a long-term strategy to secure the effectiveness of the Convention
system, taking into account the initial effects of Protocol No.
14 and other decisions taken by the Committee of Ministers in May
2004. The non-entry into force of Protocol No. 14 therefore remains
an issue of major concern.
4. In this context, the Assembly strongly deplores the position
taken by the Russian Federation’s State Duma to refuse to provide
its assent, since December 2006, to the ratification of Protocol
No. 14 to the Convention, which is an important amending protocol
that can only enter into force when all states parties to the Convention
have ratified it. By so doing, the Russian State Duma has, in effect,
considerably aggravated the situation in which the Court has found
itself, and has also deprived persons within its jurisdiction of
the benefits of a streamlined case-processing procedure before the
Court. The State Duma is urged, in the strongest possible terms,
to recognise that the changes of the control system envisaged in
Protocol No. 14 (and Protocol No. 14 bis),
will permit the Court to deal with applications in a timely fashion
so that it can concentrate on important cases requiring in-depth
examination.
5. As entry into force of Protocol No. 14 to the Convention would
be the most effective way to improve the difficult situation in
which the Court finds itself, as well as that of applicants before
it, the Assembly again urges the Russian State Duma to reconsider,
without further delay, its refusal to provide assent for Russia
to ratify this protocol.
6. However, the Assembly considers draft Protocol No. 14 bis as a good interim solution to
bring into effect, quickly, the temporary application of two provisions
extracted from Protocol No. 14 to the Convention. It will be an
additional protocol, which does not require ratification by all
states parties to the Convention. It will enable single-judge formations
to deal with plainly inadmissible applications, presently handled
by committees of three judges, and will also extend the competence
of three-judge committees to handle clearly well-founded and repetitive
cases deriving from structural or systemic defects which are presently
handled by Chambers of the Court, composed of seven judges. Protocol
No. 14 bis will cease to exist
once Protocol No. 14 to the Convention enters into force.
7. The Assembly appreciates the Committee of Ministers’ recourse
to the Assembly’s urgent procedure provision, which has permitted
it, at short notice, to take a stand on an important subject which
is still under active consideration at the intergovernmental level.
8. The Assembly recommends to the Committee of Ministers that
the following amendments be made to draft Protocol No. 14
bis:
8.1 in the preamble, insert a new third paragraph that would
read: “3. Having regard to
Opinion
271 (2009), adopted by the Parliamentary Assembly of the Council
of Europe on 30 April 2009;”;
8.2 in Article 1 replace “Parties” by “the High Contracting
Parties”;
8.3 in Article 6, paragraph 1, replace “member states” by
“High Contracting Parties”;
8.4 in Article 6, paragraph 2, replace “member state” by “High
Contracting Party to the Convention”, replace “by it” by “by this
Protocol” and add, after the words “into force”, the words “for
that High Contracting Party”;
8.5 remove the square brackets from Article 7; replace “of
the Protocol” by “of this Protocol” and replace the words “that
it will apply to it” by “that the provisions of this Protocol shall
apply to it”;
8.6 remove all the square brackets from Articles 8 to 10.
9. As concerns the explanatory report, the Assembly recommends
that, when the final version of paragraph 6 is drafted, specific
mention be made to the present opinion of the Parliamentary Assembly
and the date of its adoption.
