CDL(1998)017e-restr
Strasbourg, 26 February 1998
OPINION ON THE LEGAL PROBLEMS ARISING FROM THE COEXISTENCE
OF THE CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS OF THE COMMONWEALTH
OF INDEPENDENT STATES AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS
adopted by the Venice Commission at its 34th plenary session
(Venice, 6-7 March 1998)
on the basis of comments by
Mr G. Malinverni (Switzerland)
INTRODUCTION
On 4 July 1997, the President of the
Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of
the Council of Europe, Mr B. Hagård, submitted a request to the Venice
Commission for an opinion on the legal problems arising from the coexistence of
the Convention on Human Rights and Fundamental Freedoms of the Commonwealth of
Independent States and the European Convention on Human Rights.
The Venice Commission invited Mr
Malinverni, Rapporteur, to prepare a preliminary opinion on this question. At
its 33rd plenary session (Venice, 12-13 December 1997) the Commission held an
exchange of views on the basis of this opinion. Following this discussion, the
Rapporteur and the sub-Commission on International Law were charged with
presenting a draft consolidated opinion on the question at the next plenary
session.
The sub-Commission on International
Law met in Venice on 5 March 1998. It decided to submit to the Commission the
revised opinion of the Rapporteur (CDL (98) 17), with which Messrs Helgesen,
Holovaty, Matscher and Suviranta declared themselves to be in agreement.
At its 34th plenary session (Venice,
6-7 March 1998), the Commission adopted the Rapporteur's opinion and decided to
forward it to the Committee on Legal Affairs and Human Rights of Parliamentary
Assembly.
I. THE CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL
FREEDOMS OF THE COMMONWEALTH OF INDEPENDENT STATES
On 26 May 1995, in Minsk, seven of the
twelve member states of the Commonwealth of Independent States (CIS) signed a
new Convention on Human Rights and Fundamental Freedoms (hereinafter referred
to as "the CIS Convention").
The CIS Convention, of which the
Regulations on the Human Rights Commission of the Commonwealth of Independent
States (hereinafter referred to as "the CIS Regulations") are an
integral part, has not yet come into force.
It will do so as soon as the Contracting Parties have deposited the
third instrument of ratification (Article 38 of the CIS Convention).
Three CIS member states are also
members of the Council of Europe: Ukraine, not a party to the CIS Convention,
has been a member since 9 November 1995; Moldova, which has signed the CIS
Convention, since 13 July 1995; and the Russian Federation, which has ratified
the CIS Convention (in November 1995), since 28 February 1996.
Ukraine and Moldova have now ratified
the European Convention on Human Rights (hereafter: ECHR) and some of the
protocols thereto and made declarations under Articles 25 and 46 accepting
individual complaints and the compulsory jurisdiction of the European Court of
Human Rights. The Russian Federation has signed the ECHR and stated its
intention to ratify the convention in the future.
In a 1995 report on the conformity of
the Russian Federation's legal system with Council of Europe standards a group
of experts expressed doubts about the relevance of the CIS Convention, then in
draft form, and its compatibility with the ECHR.
The Parliamentary Assembly of the
Council of Europe shared the experts' concerns and raised the question of the
legal consequences and implications if these states were to ratify both the
ECHR and the CIS Convention. It asked
two eminent human rights experts to prepare a legal opinion on the subject.
Subsequently, in its Opinions on
Moldova, Ukraine and the Russian Federation's accession to the Council of
Europe, the Parliamentary Assembly insisted on a commitment by Moldova that it
would not ratify the CIS Convention until the problems of the convention's
co-existence with the ECHR had been clarified and that it would not do so
without the agreement of the Council of Europe (Opinion No. 188 (1995),
para. 11 (e)). Likewise, the Parliamentary Assembly called on Ukraine to
refrain from signing the CIS Convention in the present circumstances (Opinion
No. 190 (1995), para. 12 i),
and asked the Russian Federation to ensure that the CIS Convention did not in
any way interfere with the guarantees and procedure of the ECHR (Opinion No.
193 (1996), para. 10 xvi).
The essential question is whether the
coexistence of these parallel human rights instruments will improve the
protection of victims of human rights violations. Extreme care must be taken to
ensure that this is indeed the case. The credibility and utility of any new
effort in the human rights domain must meet the test of whether the procedures
created are victim-oriented, whether the framework of the universality of human
rights is enhanced and whether other norms, treaties or regimes in the area are
reinforced rather than undermined. It is in this context that the viability and
utility of the CIS Convention must be judged.
II. COMPARISON OF THE SUBSTANTIVE PROVISIONS OF
THE CIS CONVENTION AND THE ECHR
The civil and political rights
guaranteed by the CIS Convention, which clearly draws on the corresponding
provisions of the ECHR, the United Nations Covenant on Civil and Political
Rights and the American Convention on Human Rights, scarcely diverge from the
rights guaranteed by the ECHR.
Roughly speaking, the main substantive
differences are as follows:
- The
right to life (Article 2 of the CIS Convention; Article 2 of the ECHR; Protocol
6 to the ECHR)
Whereas Article
2, para. 2 of the
ECHR sets out in full the cases of necessity in which deprivation of life shall
not be regarded as a violation of this right, Article 2, para. 4 of the CIS
Convention merely refers to cases of extreme necessity and necessary defence
provided for in the national legislation of the member states. It is thus left
entirely to the discretion of the respective legislatures to fix these cases.
Protection of the right to life may therefore be more extensively curtailed
under such national legislation than pursuant to the ECHR.
As regards capital punishment, it
should be noted that the CIS Convention provides that women shall not as a rule
be sentenced to the death penalty, and it absolutely forbids the imposition or execution
of the death penalty in the case of pregnant women as well as its imposition
for crimes committed before the perpetrator reached the age of 18 (Article 2,
paras. 2 and 3). Protocol 6 to the ECHR abolishes the death penalty entirely.
This Protocol has not yet been ratified by all the states parties to the ECHR.
However, although protection of the right to life afforded under the ECHR may
thus seem lower, at first glance, than that afforded by the CIS Convention, it
must not be forgotten that the intention to ratify Protocol 6 has become one of
the conditions of a state's accession to the Council of Europe.
- Deprivation
of liberty (Article 5 of the CIS Convention; Article 5 of the ECHR)
Whereas Article
5, paras. 1 (a) to
(f) of the ECHR restrictively lists the cases where detention is lawful,
Article 5, para. 1 (b) of the CIS Convention merely requires that a person's
arrest or detention be lawful, a concept referring to the legislation of the
member states, which are apparently free to determine an unlimited number of
cases where detention or arrest is possible. Personal freedom is therefore
afforded far less protection by the CIS Convention than by the ECHR.
Furthermore, it is well established in
the case-law of the European Court of Human Rights that the provisions of
Article 5 para.1 of the ECHR must be interpreted narrowly, and account must
also be taken of the fact that any deprivation of liberty must, as well as
conforming with domestic laws, be in keeping with the purpose of Article 5 of the
ECHR, which is to protect individuals against arbitrary deprivations of
liberty. It is far from certain that such guarantees will exist under the CIS
Convention.
As to an examination of the lawfulness
of pre-trial detention, under Article 5, para. 3 of the CIS Convention such an
examination depends on its being requested by the detained person, whereas
under Article 5, para. 3 of the ECHR it is automatic, immediate and mandatory.
- Fair
trial (Article 6 of the CIS Convention; Article 6 of the ECHR)
Whereas Article
6, para. 1 of the
ECHR includes the interests of "national security in a democratic
society" among the grounds for excluding the press and the public from all
or part of a trial, Article 6, para. 1 of the CIS Convention uses the vaguer
and doubtless far broader term "state secrecy" and leaves its
interpretation to the member states' discretion. The rules governing proceedings in camera are
therefore less strictly defined under the CIS Convention.
Article 6, para. 3 (d) of the ECHR
confers on persons charged with a criminal offence the basic right to call and
question prosecution and defence witnesses.
On the other hand, Article 6, para. 3 (d) of the CIS Convention merely
allows a person charged with an offence to make an application to the court to
that end. Here, too, the guarantees afforded by the CIS Convention are
less extensive than those of the ECHR.
- State
of emergency (Article 35 of the CIS Convention; Article 15 of the ECHR)
Whereas under the ECHR exceptional
measures can be taken only "in time of war or other public emergency
threatening the life of the nation", the CIS Convention permits them
"in time of war or other emergency situation threatening the higher
interests of any Contracting Party", which is obviously a vaguer, far broader
concept. The CIS Convention therefore allows measures derogating from its
guarantees to be taken at what is clearly an earlier stage than is possible
under the ECHR.
In more positive terms, it should be
noted that the CIS Convention enshrines certain economic and social rights (the
right to work, health protection, the right to social security, protection of
disabled persons) or collective rights (protection of persons belonging to
national minorities), which are not to be found in the ECHR.
In general, a comparison of the
substantive provisions of the two conventions shows that the human rights
guaranteed by the CIS Convention are less extensive and more open to
restrictions than under the ECHR.
However, where the victim of an
alleged human rights violation chooses to lodge an application with the
European Commission of Human Rights, the most favourable treatment rule set out
in Article 60 of the ECHR will make it possible to prevent the scope of the
rights conferred by the ECHR from being diminished by the generally lower
standards of protection afforded by the CIS Convention. Moreover, this most
favourable treatment clause also appears in Article 33 of the CIS Convention,
the wording of which is almost identical to that of Article 60 of the ECHR.
Nevertheless, the impact of such
clauses is mainly negative: their effect is not to incorporate the most
favourable provisions of one convention into another, but to preclude the scope
of one instrument from being limited by the provisions of another.
Accordingly, if the alleged victim
applies to the CIS Commission, there is a risk that the latter will examine the
case solely in the light of the lower protection standards of the CIS
Convention.
The most favourable treatment
principle also comes into play in obliging states parties to both conventions
to amend their domestic laws so as to bring them into line with the convention
setting the highest standards of protection. Whether states respect this
obligation under the dual system is however at the discretion of national
legislatures.
III. CONTROL MECHANISMS OF THE CIS CONVENTION
According to the CIS Regulations,
which are an integral part of the CIS Convention (Article 34), the CIS
Commission is composed of representatives of the Parties. These representatives are not elected but
appointed by the parties (Section I, para. 2 of the CIS Regulations).
Their absolute independence and impartiality therefore cannot be guaranteed.
Moreover, no judicial form of
procedure is provided for in the case of applications from individuals. Section III, para. 3 of the CIS Regulations merely states
that the Commission may, if it so wishes, hear applicants whose cases it is
considering.
Inter-state applications concerning
matters not resolved to the Parties' satisfaction may be referred to a special
conciliatory sub-commission composed of representatives of the Contracting
States. The sub-commission is required to submit its conclusions to the
Commission for transmission to the interested Parties (Section II, para. 5 of
the CIS Regulations).
Finally, the Commission's powers are
reduced to a bare minimum. Its decisions "shall take the form of
understandings, conclusions and recommendations". It is not specified
whether such decisions are binding on the Parties; they are of a public nature
"unless decided otherwise by the Parties" (Section I, para. 10 of the
CIS Regulations).
In view of its membership and limited
powers, there seem to be serious grounds for fearing that the CIS Commission
will be unable to fulfil its role as an international supervisory body in the
field of protection of human rights in a completely effective manner.
In conclusion, the intergovernmental
and political nature of the CIS Commission raises serious doubts about its
quasi-judicial status. In this respect it is very different from the European
Commission of Human Rights. The two systems' dissimilarity becomes fully
apparent when one considers that the CIS Convention does not provide for the
setting up of a Court of Human Rights.
The Strasbourg system has greatly
helped to "realise the aims and ideals of the Council of Europe, as
expressed in its Statute, and to establish a common public order of the free
democracies of Europe",
and the European Court of Human Rights has become as it were, the
constitutional court of Western Europe. It seems that such will never be true of the
CIS Convention system in view of the substantially inferior control mechanisms
it provides in respect of the republics of the former Soviet Union.
The contrast between the two systems
will only become greater with the entry into force on 1 November 1998 of
Protocol 11 to the ECHR. As from this date all the supervisory functions of the
European Court and Commission of Human Rights will be assumed by the European
Court of Human Rights. The examination under the ECHR of alleged violations of
human rights will thus be conducted entirely under a judicial form of
procedure.
IV. EXHAUSTION OF DOMESTIC REMEDIES (ARTICLE 26 OF
THE ECHR)
The question has been raised as to
whether the control mechanisms established by the CIS Convention should be
regarded as affording a domestic remedy within the meaning of Article 26 of the
ECHR.
In the context of its examination of
the conformity of the Russian Federation's legal system with Council of Europe
standards, the above-mentioned group of legal experts was told during a meeting
at the Institute of State and Law of the Russian Academy of Science that an
individual complaint concerning a human rights violation should be dealt with
under the CIS Convention system before being brought before the European
Commission of Human Rights.
The group of experts expressed concern
about the draft CIS Convention in so far as its implementation mechanism might in
that event jeopardise the operation of the Strasbourg mechanism, especially if
an approach to the CIS Commission were to be regarded as a prerequisite for the
lodging of an application with the European Commission of Human Rights.
Such a requirement would in effect cause an unacceptable increase in the time
taken to resolve cases of alleged violations of human rights.
However, the experts' fears scarcely
seem founded. The requirement in
Article 26 of the ECHR regarding the exhaustion of domestic remedies, which is
a customary rule of international law, means that a state should not be held
accountable for its actions at international level unless persons considering
themselves prejudiced by one of its actions have unsuccessfully sought redress
by all the means available to them under that state's domestic law. Such persons must therefore submit their
cases to a domestic court, lodge an appeal if necessary, and then apply to the
highest court in the country concerned.
The view has never been taken either
in international practice or by legal writers that recourse to an international
supervisory body is subject to exhaustion of another international remedy, even
in the relationship between a regional system (such as that of the ECHR) and a
universal system (such as that of the Covenants).
This follows, in particular, from the
lack of any hierarchy between the different human rights protection systems,
from their complementary nature and from applicants' freedom to choose
whichever system they consider to provide the most effective protection. Furthermore, the very existence of
provisions such as Article 27, para. 1 (b) of the ECHR and Article 5, para. 2
(a) of the Optional Protocol to Covenant II shows that there is no hierarchy
between the different human rights protection systems.
The rule regarding exhaustion of
remedies has therefore always applied solely to a state's domestic
remedies, not regional remedies. The wording of Article 26 of the ECHR is
perfectly clear in this respect, as it provides that the European Commission of
Human Rights can only deal with a matter after all domestic remedies have been
exhausted.
It is therefore wrong to contend that
an application from an individual must in all cases be lodged with the
Commission of the CIS Convention before it can be examined by the European
Commission of Human Rights.
V. LIS ALIBI PENDENS AND THE NON BIS IN IDEM PRINCIPLE (Article 27, para. 1 (b) of the ECHR)
The protection and control mechanisms established
by the CIS Convention, which seem likely to be fairly ineffective and are
already unsatisfactory in themselves, raise yet another problem: the risk that
a complaint concerning an alleged violation of human rights may be found
inadmissible by the European Commission of Human Rights if it has already been
brought before the CIS Commission.
This is because under Article 27,
para. 1 (b) of the ECHR the Commission may not accept an application that is
"substantially the same as a matter which ¼ has already been submitted to another procedure of
international investigation or settlement¼".
The purpose of this provision is to
rule out duplication of international proceedings. It is not confined to the "non bis in idem" principle
but also covers cases of "lis alibi pendens" since, for the
Commission to declare an application inadmissible, it suffices that the same
application, relating to the same facts constituting an infringement of the
same rights, should previously or simultaneously have been lodged with another
international institution by the same person.
The following have so far been
regarded as institutions affording procedures of international investigation or
settlement within the meaning of Article 27, para. 1 (b):
- the
International Court of Justice, in The Hague,
- the UN
Human Rights Committee established by the Covenant on Civil and Political
Rights,
- the
Committee set up under the United Nations Convention on the Elimination of All
Forms of Racial Discrimination,
- the Committee
set up under the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment,
- the
institutions established within the International Labour Organisation,
- and, last,
at regional level, the Court of Justice of the European Communities, in
Luxembourg.
The concept of "procedure of
international investigation or settlement" therefore encompasses a variety
of procedures functioning in widely differing ways and providing the parties
with very unequal guarantees.
In particular, although the crucial
factor is not whether or not the procedure concerned is judicial in nature, the
institution in question should at least have the means to conduct a thorough,
objective investigation without hindrance, or even to apply a regulated
conciliation procedure without being restricted by political considerations or
hamstrung by irrefutable objections based on respect for sovereignty.
To this extent, given the
non-independence of the members of the CIS Commission, who are mere appointees
of the states parties to the CIS Convention and representatives of those states
(Section I, para. 2 of the CIS Regulations), and the fact that the Commission's
decisions are not binding (Section I, para. 10 of the CIS Regulations), added
to the non-judicial nature of the Commission's procedure, it might be argued
that the CIS Commission does not qualify as an institution operating a
procedure of international investigation or settlement within the meaning of
Article 27, para. 1 (b) of the ECHR.
This possible interpretation of
Article 27, para. 1 (b) of the ECHR would be a means of preventing the CIS
Convention system from constituting an obstacle to applicants wishing to have
their human rights complaints examined by the European Commission of Human Rights.
However, the argument based on the
non-judicial nature of the control procedure set up by the CIS Convention does
not appear decisive if the procedures currently deemed to be covered by the
expression "another procedure" are taken into account.
It is therefore highly probable that
the European Commission of Human Rights will indeed consider that, despite its
inadequacies, the CIS Commission should be regarded as "another procedure
of international investigation or settlement" and will refuse to deal with
applications that have already been or are currently being examined by it.
It should be noted that Section III,
para. 2 (a) of the CIS Regulations contains a provision similar to that of
Article 27, para. 1 (a) of the ECHR. An
application lodged simultaneously with the CIS Commission and the European
Commission of Human Rights will therefore be declared inadmissible by both
these institutions.
VI. THE NEED FOR CO-ORDINATION BETWEEN THE CONTROL
MECHANISMS OF THE CIS CONVENTION AND THE ECHR
Difficulties due to the coexistence of
different international human rights protection systems arose even in the
1970s, with the adoption of the Optional Protocol to the United Nations
Covenant on Civil and Political Rights. The solutions recommended by the Council
of Europe in that connection, imbued with a concern to avoid duplication of
proceedings, may indicate an answer to the problem of the coexistence of the
CIS Convention and the ECHR.
1. With
regard to inter-state applications, Article 62 of the ECHR may be said
to mean that, failing a special agreement, the Contracting Parties are under an
obligation to submit disputes arising from the interpretation or application of
the ECHR solely to the supervisory bodies established under that convention.
This interpretation has, however, been criticised and sometimes deemed
incompatible with the universal nature of human rights.
These uncertainties led the Committee
of Ministers of the Council of Europe to stipulate that any states parties to
the ECHR that have also recognised the right of communication under Article 41
of the United Nations Covenant on Civil and Political Rights should normally
utilise only the procedure established by the European Convention in order to
complain of another state's violation of a right guaranteed by both the
Covenant and the Convention.
It is therefore clear that the Council
of Europe wished to give precedence to the regional system of the ECHR and
emphasise its independence in relation to other international institutions,
thus making the European Court a sovereign tribunal whose judgments are final. This solution is designed to prevent an
applicant state from choosing between the two procedures and obviate the risk
of duplication of proceedings.
The CIS Regulations, for their part,
provide that they shall not "¼ prevent the Parties from resorting to other
procedures for settling disputes on the basis of international agreements
applying to them" (Final Section, para. 1 of the CIS Regulations). In the
case of inter-state applications, therefore, it does not seem that the control
mechanism of the CIS Convention should interfere with the European
Convention's system.
However, given the absence of a
hierarchy of norms as between the two conventions, it would be desirable if any
states parties to the ECHR that consider they should nevertheless ratify the
CIS Convention were to make an interpretative declaration when doing so, giving
absolute priority to the ECHR's tried and tested control mechanisms so as to
avoid weakening them and, above all, prevent duplication of proceedings.
2. As
for applications from individuals, the Committee of Ministers, referring
to the co-existence of the ECHR and the Optional Protocol to the United Nations
Covenant on Civil and Political Rights, took the view that victims of a
violation of a right covered by both instruments should be fully free to submit
the matter to whichever international procedure they chose.
At the same time, the "lis alibi
pendens" and "non bis in idem" principles set forth in Article
27, para. 1 (b) of the ECHR expressly preclude the duplication of proceedings. It follows that an application lodged by the
complainant with the CIS Commission either earlier or simultaneously will be
declared inadmissible by the European Commission.
It would be highly desirable to
prevent the far from perfect CIS Convention system from standing in the way of
an examination by the ECHR institutions violation of a right covered by both
conventions. In a word, the main problem arising from the coexistence of the
two conventions lies in this risk of the ECHR control mechanism being blocked -
and hence weakened - by the lodging of an application with the CIS
Commission. In view of the terms of
Article 27, para. 1 (b) of the ECHR, it is difficult to eradicate this
possibility of the Strasbourg system being excluded.
From a theoretical point of view, it
is doubtless reassuring to assume that the freedom of choice of a procedure
enjoyed by the applicant, who will have to bear the consequences of that
choice, combined with the most favourable treatment principle (Article 60 of
the ECHR; Article 33 of the CIS Convention) will enable the scope for conflicts
of rules between the two systems to be reduced.
However, this thought will seem
somewhat less soothing if one remembers the CIS member states' low level
of legal culture, their under-developed legal institutions, their lack of
competent judges and lawyers, their lack of experience of systematic judicial
protection of human rights and freedoms and, in general, the fact that the very
concept of the rule of law is far from having gained acceptance in their
territories.
There is a genuine risk that parallel institutional mechanisms affording fewer
guarantees than those provided by the ECHR will confuse victims in the
post-Soviet states who barely understand the rights they have acquired, and
will act as a further obstacle to redressing alleged abuses.
In such circumstances it seems
illusory to assume that alleged victims will be sufficiently well informed and
advised to be able to choose to submit their complaints to the international
body offering the best level of protection and effectiveness, ie the European
Commission of Human Rights. As to the
most favourable treatment principle, because of its mainly negative effect it
will not help to raise standards of protection under the CIS Convention.
VII. CONCLUSIONS
The following conclusions can be drawn
from the above analysis:
- The
fundamental rights set forth in the CIS Convention are generally more limited
in scope than the corresponding rights under the ECHR, which affords higher
standards of protection.
- The control
mechanisms established by the CIS Convention appear inadequate for guaranteeing
effective compliance with the human rights obligations entered into by states
parties and are very different from the judicial machinery of the ECHR.
- An
application lodged with the CIS Commission should not be regarded as a domestic
remedy to be exhausted under Article 26 of the ECHR.
- The CIS
Commission should undoubtedly be deemed another procedure of international
investigation or settlement within the meaning of Article 27, para. 1 (b) of
the ECHR; the European Commission will therefore declare inadmissible an
individual application lodged earlier or simultaneously with the CIS Commission
pursuant to that article.
- It would be
desirable if CIS member states were, if they choose to ratify the CIS
Convention, to make an interpretative declaration or reservation giving the
ECHR system clear precedence over that of the CIS Convention in the case of
inter-state applications.
Regional cooperation – a pursuit
generally to be encouraged – has little or no worth unless the result of the
cooperation is to create improvements in the domain which is the subject of
actions taken. As a general rule, in the field of human rights, a regional
convention is meaningful only if it adds something new to the universal human
rights protection system, whether from the point of view of the law (new
substance) or from that of implementation (new procedure).
The above analysis shows that this is not the case with the CIS Convention
which indeed has rather the effect of lowering the existing standards.
For those States which are members of
the Council of Europe or candidates to become members, adherence to the ECHR is
mandatory and the ECHR should have priority over other European systems for
protection of human rights.
For CIS countries which are not and
will not become candidates for Council of Europe membership, the CIS Convention
provides for international protection of human rights at the regional level.
In the light of these comments, it is
desirable that CIS member states which have acceded to the Council of Europe, which
ratify the ECHR and also sign or ratify the CIS Convention, fully inform the
people within their jurisdiction, including those people working in relevant
professional milieus, lawyers and non-governmental organisations, that the
guarantees provided by the ECHR system are more complete than those provided by
the CIS Convention.
