Council of Europe (CoE) The Council of Europe (CoE) was established on 5 May 1949 in Strasbourg following a widespread post-WWII movement proclaiming the need for European unity. Initially founded by only 10 States, today CoE is a pan-European organisation with 47 member states. The CoE's raison d'être is twofold: to unite its members more closely for the purpose of safeguarding democratic ideals and principles, and; to promote their economic and social development. On the basis of its fundamental values, which are democracy, human rights and the rule of law, CoE constitutes a Europe-wide common legal area which is determined by its standard-setting activities and approximately 200 conventions, a number of which are open to non-member states, including countries outside Europe. The CoE operates on the basis of the 1949 Statute and "statutory" resolutions. The Statute contains provisions for two bodies - the Committee of Ministers, the CoE's supreme intergovernmental body, with sole authority to act and decide on its behalf, and the Parliamentary Assembly, which is a deliberative organ. Another important body of the Council is the Congress of Local and Regional Authorities of Europe. The European Court of Human Rights is not formally a CoE organ as it was established by a separate dedicated convention. Facing new challenges after 60 years of existence CoE is now taking its role forward[1] in order to find solutions to contemporary regional problems such as terrorism, organised crime and corruption, cybercrime, bioethics and cloning, etc. Recent Development: Adoption of Protocol No. 14 bis amending the European Convention on Human Rights The European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) is a Council of Europe treaty opened for signature on November 4, 1950 and entered into force in September 1953.[2] Since its adoption, the Convention has been amended and supplemented several times through fourteen protocols. In particular, the control mechanism established by the Convention was radically reformed by Protocol No. 11 which came into force in 1998. It substituted a full-time single Court[3] for the former system in the original Convention consisting of a European Commission on Human Rights, along with the Court and the Committee of Ministers which 'played a certain "judicial" role'.[4] Protocol No. 11 also made acceptance of the right of individual petition compulsory upon all new member states.[5] In 2004 the Convention system was open to no fewer than 800 million people. As a result of the massive influx of individual applications, the effectiveness of the system, and thus the credibility and authority of the Court were seriously endangered.[6] Previous changes to the Convention's control mechanisms where not enough and an urgent need to adjust the control mechanism of the Convention was cited as a principal reason for the adoption of Protocol No. 14 in 2004. Filtering and subsequent processing of applications by the Court were the main areas in which Protocol No. 14 was supposed to make concrete improvements.[7] Protocol No. 14 also paves the way for the European Union to ratify the ECHR.[8] The Protocol No. 14 still hasn't entered into force as it requires the ratification of all member states for entry into force. Russia has taken action towards ratification of Protocol 14 in January 2010 (see below), but the continuing non-entry into force of Protocol No. 14 has made the situation faced by the Court deteriorate yet further in the face of an ever-accelerating influx of new applications and a constantly growing backlog of cases.[9] Pending the entry into force of Protocol No. 14, therefore, member states have agreed to adopt a Protocol No. 14 bis, limited to those procedural measures contained in Protocol No. 14 that would be most effective in increasing the Court's case-processing capacity, as a provisional interim measure.[10] Protocol No. 14 bis allows the immediate and provisional application of two procedural elements of Protocol No. 14 with respect to those states that express their consent. Firstly, a single judge will be able to reject plainly inadmissible applications, whereas now this requires a decision by a committee of three judges (article 25 of the Convention amended by article 3 Protocol 14). This system will thus lead to a significant increase in the Court's filtering capacity. It is specified that the competence of the single judge is limited to taking decisions of inadmissibility or decisions to strike the case out of the list "where such a decision can be taken without further examination".[11] This means that the judge will take such decisions only in clear-cut cases, where the inadmissibility of the application is manifest from the outset.[12] Secondly, the competence of three-judge committees will be extended to declaring applications admissible and deciding on their merits in well-founded and repetitive cases, where there already is a well-established case law of the Court (currently, these cases are handled by chambers of seven judges) (article 28 of the Convention amended by article 4 of the Protocol). These committees could, unanimously, declare applications inadmissible; they may now also, in a joint decision, declare individual applications admissible and decide on their merits, when the questions they raise concerning the interpretation or application of the Convention are covered by well-established case-law of the Court. Protocol No.14 bis was opened for signature on May 27, 2009 at the 119th session of the Council of Europe Committee of Ministers held in Madrid in May 2009. It needs ratification by three states to enter into force (article 6 of the Protocol). As of December 2009, nine CoE states have ratified it (Denmark, Georgia, Iceland, Ireland, Monaco, Norway, San Marino, Slovenia and Ukraine) and eight others have signed it prior to ratification (Austria, Cyprus, France, Poland, Romania, Slovakia, Spain and Sweden). Protocol 14 bis will only apply to those applications that are pending before the Court against each of the States for which the Protocol No.14 bis has entered into force. Member states may provisionally apply the Protocol No.14 bis before entry into force (article 7 of the Protocol) that has been done by Albania, Belgium, Estonia, Germany, Liechtenstein, Luxembourg, the Netherlands, Spain, Switzerland and the United Kingdom. On 22 December 2009 the Court was notified its first judgments on the merits adopted by a three-judge Committee, in two cases concerning Germany.[13] **** It is often said that the Court is the victim of its own success. It is evident that without entry into force of Protocol No.14 bis the Court's caseload would become quite simply unmanageable. The application of Protocol No.14 bis, though not providing a definitive answer to the Court's problems, is estimated to increase the efficiency of the Court by 20-25%.[14] Protocol No. 14 bis resemble an emergency response to the crisis of the Court's caseload due to the unusually low number of ratifications for entry into force - ratification by three States only. This was done in order to allow it to enter into force as quickly as possible. On the other hand, it is important to underline that Protocol No.14 bis remains a provisional, interim measure pending entry into force of Protocol No. 14 and is deliberately limited to the introduction of two procedural elements taken from Protocol No. 14. On January 15, 2010, the Russia became the last and final state to ratify Protocol 14. The full Protocol will now enter into force on June 1, 2010, in line with article 19 of the Protocol. The terms of Protocol 14 bis will continue in force until this time. Mayya Limonnikova PhD student, MGIMO University (Moscow, Russia) and Pierre Mendes France University (Grenoble, France) January 2010 Footnotes: 1 Declaration of the Committee of Ministers on the occasion of the Organisation's 60th anniversary (May 12, 2009) CM(2009)50 final, available at http://www.coe.int/t/cm/adoptedTexts_en.asp#P100_9566. 2 Convention for the Protection of Human Rights and Fundamental Freedoms, November 4, 1950, Europ. TS No. 5, 213 UNTS 221. 3 The European Court of Human Rights (the Court) consists of a number of judges equal to the number of member States of the Council of Europe that have ratified the Convention, currently forty-seven, ECHR, article 20. 4 Explanatory Report to Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention (October 4 2005) ¶ 3 available at http://www.echr.coe.int/NR/rdonlyres/1EC62EF1-E72F-4B6A-976C-7CBB22CFCAC8/0/Protocol14Explanatory.pdf. 5 In the words of the Court, "individuals now enjoy at the international level a real right of action to assert the rights and freedoms to which they are directly entitled under the Convention". See Mamatkulov and Askarov v. Turkey (Eur. Ct. H.R. February 4, 2005), Applications nos. 46827/99 and 46951/99, para. 122. 6 Explanatory Report to Protocol No. 14, supra note 4, para. 6. 7 Id., para.18. 8 Id., para. 46. 9 Explanatory Report to Protocol No. 14 bis to the Convention for the Protection of Human Rights and Fundamental Freedoms, para. 1 available at http://conventions.coe.int/Treaty/EN/Reports/Html/204.htm. 10 Id., para. 2. 11 ECHR, article 28, as amended by Protocol No. 14 bis. 12 Explanatory Report to Protocol No. 14 bis, supra note 9, para. 15. 13 Press release issued by the Registrar of the European Court of Human Rights, First Judgments adopted by three judges under the Court's new procedures No. 983 (December 21, 2009). 14 Explanatory Report to Protocol No. 14 bis, supra note 9, para. 3. |
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