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Draft Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms

Doc. 13154: compendium of written amendments | Doc. 13154 | Final version

Compendium index

Amendment 1 Amendment 2

Caption: AdoptedRejectedWithdrawnNo electronic votes

ADraft Opinion

1The Parliamentary Assembly is of the view that draft Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5, “the Convention”), as submitted to it on 17 January 2013,Doc. 13093. can be adopted by the Committee of Ministers and opened for signature and ratification as presently drafted, without amendment.

24 April 2013

Tabled by Mr Boriss CILEVIČS, Mr Klaas de VRIES, Ms Þuriður BACKMAN, Mr Aleksandrs SAKOVSKIS, Lord John E. TOMLINSON

If adopted, amendment 2 falls.

Votes: 14 in favor 29 against 5 abstentions

In the draft opinion, paragraph 1, replace the word "can" by the following word: "should" and replace the word "without" with the following words: "with one".

Explanatory note

In order to ensure that, in the new recital at the end of the preamble to the Convention, it is clearly understood that the Court's doctrine of the margin of appreciation does not apply to all the rights guaranteed by the Convention, such as the prohibition of torture or slavery (as explained in the open letter sent by a number of mainstream human rights NGOs to all member states of the Council of Europe on 15 April 2013).

2The Assembly has been kept fully aware of – and implicated in – the process leading up to the completion of the drafting process of the said draft protocol, and, in the light of the Opinion provided on this text by the European Court of Human Rights (“the Court”), on 6 February 2013, endorses:
2.1the insertion, in the Convention’s Preamble, of a reference to the principle of subsidiarity and the doctrine of the margin of appreciation, as developed in the Court’s case-law;
2.2as concerns the election of judges to the Court, the replacement of the age limit of 70 by that of a requirement that candidates be below the age of 65 on the date by which the list of three candidates is to be received by the Assembly (thereby extending de facto the age limit to the age of 74);
2.3the removal, from Article 30 of the Convention, of the words “unless one of the parties to the case objects”, concerning relinquishment of jurisdiction by a Chamber in favour of the Grand Chamber;
2.4the shortening, from six to four months, of the time limit within which an application can be brought before the Court after all domestic remedies have been exhausted, as stipulated in Article 35, paragraph 1, of the Convention;
2.5the deletion of the present admissibility requirement, in Article 35, paragraph 3.b, of the Convention, which specifies that no case be rejected under this provision if it has not been duly considered by a domestic court.
3As (draft) Protocol No. 15 is an amending protocol, it must be ratified by all the High Contracting Parties to the Convention for it to enter into force. Due to the fact that the proposed changes to the text are principally of a technical and uncontroversial nature, the Assembly urges all the Parties to the Convention, and in particular their legislative bodies, to ensure this instrument’s rapid signature and ratification.

24 April 2013

Tabled by Mr Boriss CILEVIČS, Mr Klaas de VRIES, Ms Þuriður BACKMAN, Mr Aleksandrs SAKOVSKIS, Lord John E. TOMLINSON

Falls if amendment 1 is adopted.

In the draft opinion, before paragraph 3, insert the following paragraph:

"In order to improve the current text contained in Article 1 of draft Protocol No 15, the word "may" should be inserted between the words "doing so" and "enjoy a margin of appreciation".

Explanatory note

In order to ensure that, in the new recital at the end of the preamble to the Convention, it is clearly understood that the Court's doctrine of the margin of appreciation does not apply to all the rights guaranteed by the Convention, such as the prohibition of torture or slavery (as explained in the open letter sent by a number of mainstream human rights NGOs to all member states of the Council of Europe on 15 April 2013).