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COUNCIL OF EUROPE
COMMITTEE OF MINISTERS
Recommendation Rec(2004)5
of the Committee of Ministers to member states
on the verification of the compatibility of draft laws,
existing laws and administrative practice with the standards
laid down in the European Convention on Human Rights
(adopted by the Committee
of Ministers on 12 May 2004
at its 114th Session)
The Committee of Ministers,
in accordance with Article 15.b of the Statute of the
Council of Europe,
Considering that the aim of
the Council of Europe is the achievement of greater unity
among its members, and that one of the most important
methods by which that aim is to be pursued is the
maintenance and further realisation of human rights and
fundamental freedoms;
Reiterating its conviction
that the Convention for the Protection of Human Rights and
Fundamental Freedoms (hereinafter referred to as “the
Convention”) must remain the essential reference point for
the protection of human rights in Europe, and recalling its
commitment to take measures in order to guarantee the
long-term effectiveness of the control system instituted by
the Convention;
Recalling the subsidiary
character of the supervision mechanism set up by the
Convention, which implies, in accordance with its Article 1,
that the rights and freedoms guaranteed by the Convention be
protected in the first place at national level and applied
by national authorities;
Welcoming in this context
that the Convention has now become an integral part of the
domestic legal order of all states parties and noting in
this respect the important role played by national courts;
Recalling that, according to
Article 46, paragraph 1, of the Convention, the high
contracting parties undertake to abide by the final
judgments of the European Court of Human Rights (hereinafter
referred to as “the Court”) in any case to which they are
parties;
Considering however, that
further efforts should be made by member states to give full
effect to the Convention, in particular through a continuous
adaptation of national standards in accordance with those of
the Convention, in the light of the case-law of the Court;
Convinced that verifying the
compatibility of draft laws, existing laws and
administrative practice with the Convention is necessary to
contribute towards preventing human rights violations and
limiting the number of applications to the Court;
Stressing the importance of
consulting different competent and independent bodies,
including national institutions for the promotion and
protection of human rights and non-governmental
organisations;
Taking into account the
diversity of practices in member states as regards the
verification of compatibility;
Recommends that member
states, taking into account the examples of good practice
appearing in the appendix:
I. ensure that there are
appropriate and effective mechanisms for systematically
verifying the compatibility of draft laws with the
Convention in the light of the case-law of the Court;
II. ensure that there are
such mechanisms for verifying, whenever necessary, the
compatibility of existing laws and administrative practice,
including as expressed in regulations, orders and circulars;
III. ensure the adaptation,
as quickly as possible, of laws and administrative practice
in order to prevent violations of the Convention;
Instructs the Secretary
General of the Council of Europe to ensure that the
necessary resources are made available for proper assistance
to member states which request help in the implementation of
this recommendation.
Appendix to
Recommendation Rec(2004)5
Introduction
1. Notwithstanding the
reform, resulting from Protocol No. 11, of the control
system established under the European Convention on Human
Rights (hereinafter referred to as “the Convention”), the
number of applications submitted to the European Court of
Human Rights (hereinafter referred to as “the Court”) is
increasing steadily, giving rise to considerable delays in
the processing of cases.
2. This development reflects
a greater ease of access to the European Court, as well as
the constantly improving human rights protection in Europe,
but it should not be forgotten that it is the parties to the
Convention, which, in accordance with the principle of
subsidiarity, remain the prime guarantors of the rights laid
down in the Convention. According to Article 1 of the
Convention, “The High Contracting Parties shall secure to
everyone within their jurisdiction the rights and freedoms
defined in Section I of this Convention”. It is thus at
national level that the most effective and direct protection
of the rights and freedoms guaranteed in the Convention
should be ensured. This requirement concerns all state
authorities, in particular the courts, the administration
and the legislature.
3. The prerequisite for the
Convention to protect human rights in Europe effectively is
that states give effect to the Convention in their legal
order, in the light of the case-law of the Court. This
implies, notably, that they should ensure that laws and
administrative practice conform to it.
4. This recommendation
encourages states to set up mechanisms allowing for the
verification of compatibility with the Convention of both
draft laws and existing legislation, as well as
administrative practice. Examples of good practice are set
out below. The implementation of the recommendation should
thus contribute to the prevention of human rights violations
in member states, and consequently help to contain the
influx of cases reaching the Court.
Verification of the
compatibility of draft laws
5. It is recommended that
member states establish systematic verification of the
compatibility with the Convention of draft laws, especially
those which may affect the rights and freedoms protected by
it. It is a crucial point: by adopting a law verified as
being in conformity with the Convention, the state reduces
the risk that a violation of the Convention has its origin
in that law and that the Court will find such a violation.
Moreover, the state thus imposes on its administration a
framework in line with the Convention for the actions it
undertakes vis-à-vis everyone within its jurisdiction.
6. Council of Europe
assistance in carrying out this verification may be
envisaged in certain cases. Such assistance is already
available, particularly in respect of draft laws on freedom
of religion, conscientious objection, freedom of
information, freedom of association, etc. It is none the
less for each state to decide whether or not to take into
account the conclusions reached within this framework.
Verification of the
compatibility of laws in force
7. Verification of
compatibility should also be carried out, where appropriate,
with respect to laws in force. The evolving case-law of the
Court may indeed have repercussions for a law which was
initially compatible with the Convention or which had not
been the subject of a compatibility check prior to adoption.
8. Such verification proves
particularly important in respect of laws touching upon
areas where experience shows that there is a particular risk
of human rights violations, such as police activities,
criminal proceedings, conditions of detention, rights of
aliens, etc.
Verification of the
compatibility of administrative practice
9. This recommendation also
covers, wherever necessary, the compatibility of
administrative regulations with the Convention, and
therefore aims to ensure that human rights are respected in
daily practice. It is indeed essential that bodies, notably
those with powers enabling them to restrict the exercise of
human rights, have all the necessary resources to ensure
that their activity is compatible with the Convention.
10. It has to be made clear
that the recommendation also covers administrative practice
which is not attached to the text of a regulation. It is of
utmost importance that states ensure verification of their
compatibility with the Convention.
Procedures allowing
follow-up of the verification undertaken
11. In order for
verification to have practical effects and not merely lead
to the statement that the provision concerned is
incompatible with the Convention, it is vital that member
states ensure follow-up to this kind of verification.
12. The recommendation
emphasises the need for member states to act to achieve the
objectives it sets down. Thus, after verification, member
states should, when necessary, promptly take the steps
required to modify their laws and administrative practice in
order to make them compatible with the Convention. In order
to do so, and where this proves necessary, they should
improve or set up
appropriate revision
mechanisms which should systematically and promptly be used
when a national provision is found to be incompatible.
However, it should be pointed out that often it is enough to
proceed to changes in case-law and practice in order to
ensure this compatibility. In certain member states
compatibility may be ensured through the non-application of
the offending legislative measures.
13. This capacity for
adaptation should be facilitated and encouraged,
particularly through the rapid and efficient dissemination
of the judgments of the Court to all the authorities
concerned with the violation in question, and
appropriate training of
the decision makers. The Committee of Ministers has devoted
two specific recommendations to these important aspects: one
on the publication and the dissemination in member states of
text of the Convention and the case-law of the Court (Rec(2002)13)
and the other on the Convention in university education and
professional training (Rec(2004)4).
14. When a court finds that
it does not have the power to ensure the necessary
adaptation because of the wording of the law at stake,
certain states provide for an accelerated legislative
procedure.
15. Within the framework of
the above, the following possibilities could be considered.
Examples of good practice
16. Each member state is
invited to give information as to its practice and its
evolution, notably by informing the General Secretariat of
the Council of Europe. The latter will, in turn,
periodically inform all member states of existing good
practice.
I. Publication,
translation and dissemination of, and training in, the human
rights protection system
17. As a preliminary remark,
one should recall that effective verification first demands
appropriate publication and dissemination at national level
of the Convention and the relevant case-law of the Court, in
particular through electronic means and in the language(s)
of the country concerned, and the development of university
education and professional training programmes in human
rights.
II. Verification of draft
laws
18. Systematic supervision
of draft laws is generally carried out both at the executive
and at the parliamentary level, and independent bodies are
also consulted.
By the executive
19. In general, verification
of conformity with the Convention and its protocols starts
within the ministry which initiated the draft law. In
addition, in some member states, special responsibility is
entrusted to certain ministries or departments, for example,
the Chancellery, the Ministry of Justice and/or the Ministry
of Foreign Affairs, to verify such conformity. Some member
states entrust the agent of the government to the Court in
Strasbourg, among other functions, with seeking to ensure
that national laws are compatible with the provisions of the
Convention. The agent is therefore empowered, on this basis,
to submit proposals for the amendment of existing laws or of
any new legislation which is envisaged.
20. The national law of
numerous member states provides that when a draft text is
forwarded to parliament, it should be accompanied by an
extensive explanatory memorandum, which must also indicate
and set out possible questions under the constitution and/or
the Convention. In some member states, it should be
accompanied by a formal statement of compatibility with the
Convention. In one member state, the minister responsible
for the draft text has to certify that, in his or her view,
the provisions of the bill are compatible with the
Convention, or to state that he or she is not in a position
to make such a statement, but that he or she nevertheless
wishes parliament to proceed with the bill.
By the parliament
21. In addition to
verification by the executive, examination is also
undertaken by the legal services of the parliament and/or
its different parliamentary committees.
Other consultations
22. Other consultations to
ensure compatibility with human rights standards can be
envisaged at various stages of the legislative process. In
some cases, consultation is optional. In others, notably if
the draft law is likely to affect fundamental rights,
consultation of a specific institution, for example the
Conseil d'Etat in some member states, is compulsory as
established by law. If the government has not consulted as
required, the text will be tainted by procedural
irregularity. If, after having consulted, it decides not to
follow the opinion received, it accepts responsibility for
the political and legal consequences that may result from
such a decision.
23. Optional or compulsory
consultation of non-judicial bodies competent in the field
of human rights is also often foreseen. In particular these
may be independent national institutions for the promotion
and protection of human rights, the ombudspersons, or local
or international non-governmental organisations, institutes
or centres for human rights, or the Bar, etc.
24. Council of Europe
experts or bodies, notably the European Commission for
Democracy through Law (“the Venice Commission”), may be
asked to give an opinion on the compatibility with the
Convention of draft laws relating to human rights. This
request for an opinion does not replace an internal
examination of compatibility with the Convention.
III. Verification of
existing laws and administrative practice
25. While member states
cannot be asked to verify systematically all their existing
laws, regulations and administrative practice, it may be
necessary to engage in such an exercise, for example as a
result of national experience in applying a law or
regulation or following a new judgment by the Court against
another member state. In the case of a judgment that
concerns it directly, by virtue of Article 46, the state is
under obligation to take the measures necessary to abide by
it.
By the executive
26. In some member states,
the ministry that initiates legislation is also responsible
for verifying existing regulations and practices, which
implies knowledge of the latest developments in the case-law
of the Court. In other member states, governmental agencies
draw the attention of independent bodies, and particularly
courts, to certain developments in the case-law. This aspect
highlights the importance of initial education and
continuous training with regard to the Convention system.
The competent organs of the state have to ensure that those
responsible in local and central authorities take into
account the Convention and the case-law of the Court in
order to avoid violations.
By the parliament
27. Requests for
verification of compatibility may be made within the
framework of parliamentary debates.
By judicial institutions
28. Verification may also
take place within the framework of court proceedings brought
by individuals with legal standing to act or even by state
organs, persons or bodies not directly affected (for example
before the Constitutional Court).
By independent
non-judicial institutions
29. In addition to their
other roles when seized by the government or the parliament,
independent non-judicial institutions, and particularly
national institutions for the promotion and protection of
human rights, as well as ombudspersons, play an important
role in the verification of how laws are applied and,
notably, the Convention which is part of national law. In
some countries, these institutions may also, under certain
conditions, consider individual complaints and initiate
enquiries on their own initiative. They strive to ensure
that deficiencies in existing legislation are corrected, and
may for this purpose send formal communications to the
parliament or the government.
