Human Rights Brief
A Legal Resource for the International Human Rights CommunityWinter 1995
Drzemczewski Discusses The System in Motion
by Françoise Roth and Claudia Martin
Andrew Drzemczewski is the Council of Europe’s Secretary of the Committee of experts for the improvement of procedures for the protection of human rights. The Committee was in charge of the technical preparation of the draft of Protocol No. 11, the amending protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms. In a telephone interview, Mr. Drzemczewski offered the following views on the European system for the protection of human rights.
Q. What are the requirements for a country to ratify the European Convention?
A. Before ratifying the Convention, a country should make sure that its legal system conforms with the requirements of the Convention. Hungary is a typical example. It joined the Council of Europe on November 6, 1990, but needed almost two years to ratify the Convention, which was done on November 5, 1992. Hungary set up an inter-departmental commission within the Ministry of Justice that scrutinized Hungarian law and practice in relation to the requirements of the European Convention and case-law of the Commission and Court. They notably modified their draft code on criminal procedure to take into account possible incompatibility with the Convention and the case-law thereunder. The work of this inter-departmental commission was then approved by the Parliament. It is only then that the Convention was ratified and the control mechanism fully recognized.
Q. Do the organs of the Council of Europe have a say before a country can ratify the European Convention in determining whether or not it satisfies all of the Convention’s requirements?
A. There are formal procedures and material conditions imposed upon a state before it becomes a member of the Council of Europe. The Committee of Ministers must decide by a two-thirds majority if a country can become a member-state of the Council of Europe. It looks at three conditions: pluralistic democracy, respect for human rights, and the rule of law. Before it takes any decision, it asks the Parliamentary Assembly for an opinion. The Court and Commission certainly do not involve themselves, as such, in this process because they only have jurisdiction once the Convention has been ratified. However, some of the judges and members of the Commission may, in their individual capacity, be asked as "eminent lawyers" to help the Parliamentary Assembly to estimate whether the country satisfies the requirements. Some of them may also be asked in their individual capacity to go to the country concerned and provide advice on an informal basis. Such was recently the case in Lithuania, which will satisfy the Convention requirements in 1995.
Before 1989, every country that joined the Council of Europe had fully accepted the control mechanism of the Convention, i.e., the right to individual application before the Commission and the compulsory jurisdiction of the Court. As a consequence, when the new countries applied, in order to be "democratic," they had to accept the same standard. In practice now, although a country can legally ratify the Convention without making the optional declarations, in fact politically, it is inconceivable for a state not to make a commitment to do so when joining the Organization.
Q. Does the Court use differing standards when deciding violations of human rights in different countries, in Turkey or Northern Ireland, for example?
A. The Court has no double standard. However, the fact that the Commission came out with a friendly settlement concerning allegations of torture with respect to Turkey at a time when the Court’s jurisdiction had not been accepted by Turkey, and the fact that the Committee of Ministers, unsatisfactorily in the eyes of most outside observers, took into account political considerations, may indeed put into disrepute the Convention mechanism. I think that there are defects in our system that one has to accept because intricate, non-judicial, mechanisms exist.
Perhaps a positive aspect needs underlining. In the only case to-date concerning the finding of a violation of Article 3 of the Convention, Ireland v. U.K., the Attorney General of the defendant state promised that the five interrogation techniques will never be used again.
Q. The new control mechanism established by Protocol No. 11 is very jurisdictional and rigid. How do you think the Council of Europe will deal with gross or consistent violations of human rights under such a system?
A. There would be a technical finding of the violation by the Court. This would be objective in terms of political and other considerations not coming into play. There would be a clear situation where, if the court were to find a country in violation of the Convention, it would be for the Committee of Ministers, the political organ, to decide what to do with the country that is not prepared to abide by the Court’s findings (i.e., suspend or exclude it from the Organization). It may also have to take up certain functions, like those of the Inter-American Commission on Human Rights, in relation to matters not discussed in the negotiation process. The juridical system, as such, does prevent major, gross violations from occurring, but the assumption is that you are in a democratic state. But assuming that something very bad occurs, it may or may not be helpful. Time will tell.
Q. How do you see Protocol No. 11 in the evolution of the Organization?
A. I suspect that Protocol No. 11 is the end of a long process rather than something that will take off or again be amended in the near future. We are going into unchartered waters. The Council of Europe is going to go through a difficult period of trying to maintain high, sophisticated human rights standards. Protocol No. 11 will have to be the anchor which holds the Organization down to certain democratically accepted, civilized standards. If it fails, the Organization may well have to change the nature of its existence as we understand it. This is our challenge for the next millennium.
The proper citation for this article in the Human Rights Brief Volume 2, Number 2, beginning at page 7 is: 2 No. 2 Hum. Rts. Brief 7 (1995).
