The individual complaint procedure of the European Court of Human Rights and the United Nations Human Rights Council: A comparison - an exemplification of procedural divergencies and commonalities / eingereicht von Mag. Sarah Katrin Maringele

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Eingereicht von

Mag.a _{Sarah Katrin Maringele} Angefertigt am

Institut für Verwaltungsrecht und Verwaltungslehre Betreuerin und Erstbeurteilerin Univ.-Prof.in_Dr.in_Katharina Pabel

Zweitbeurteilerin

Univ.-Prof.in_Mag.a_Dr.in _Birgit Haslinger LL.M. (LSE) November 2018

Dissertation

zur Erlangung des akademischen Grades

Doktorin der Rechtswissenschaften

im Doktoratsstudium der Rechtswissenschaften an der

rechtswissenschaftlichen Fakultät der Johannes Kepler Universität Linz

The individual

complaint procedure of

the European Court of

Human Rights and the

United Nations Human

Rights Council

A comparison—

an exemplification of procedural

divergencies and commonalities

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EIDESSTATTLICHE ERKLÄRUNG

Ich erkläre an Eides statt, dass ich die vorliegende Dissertation selbstständig und ohne fremde Hilfe verfasst, andere als die angegebenen Quellen und Hilfsmittel nicht benutzt bzw. die wörtlich oder sinngemäß entnommenen Stellen als solche kenntlich gemacht habe.

Die vorliegende Dissertation ist mit dem elektronisch übermittelten Textdokument identisch.

Linz, 30.11.2018

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I would like to express my sincerest gratitude to my advisor, Prof.in _Pabel,

for her guidance, valuable advice and encouragement.

To my loved ones.

To my partner, Michael, who is endlessly loving and supporting. To Conny, my beloved friend, who always truly and deeply cares. To my dear friend Stefan, who shares endless engagement in discussions,

insightful comments and everlasting motivation. And to my grandparents, Reinelde & Andreas, who are always acting with kindness and warmth.

You are all so special and such beautiful minds. Thank you!

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Preface

Almost exactly 70 years after the adoption of one of the most significant works of human rights protection, the Universal Declaration of Human Rights, the United Nations High Commissioner for Human Rights, Zeid Ra'ad Al Hussein, utilised point-blank words to describe the current world situation when stating in the opening speech of the 36th_{Human Rights Council session: “Today,}

perhaps all of us wonder whether a trigger pulled, a steering wheel turned, or a pin tugged by the fingers of some violent extremist will strike down our future prematurely. But the actions of violent extremists cannot totally obliterate our world. Only governments can do that—and this is the greater tragedy of today. Left on their current course, it will be governments who will break humanity […] staging for us, not a century of achievement and pride, but a century that is small, bitter and deprived, for the vast majority of humans.” 1

The High Commissioner’s words leave a bitter taste and give the impression that governments are not engaging in the protection of rights and freedoms of individuals. Thus, it is international human rights law that plays a central role as a guarantor for protecting the minimum standards of human rights and freedoms for individuals worldwide. There exists a multitude of human rights law treaties, mechanisms and institutions and they are all targeting the same purpose: (individual) human rights protection against States’ wrongdoings. And even though these mechanisms are constructed to pursue the exact same goal, they not only appear to have commonalities but also divergencies. In the following work, a comparison of the two most significant mechanisms of human rights protection shall provide an insight into such divergencies and commonalities: in particular, a comparison of the individual complaint procedure of the European Court of Human Rights and the complaint procedure of the United Nations Human Rights Council. The comparison shall provide for a comprehensive illustration of the mechanisms and shed light on the following questions: How did the two mechanisms develop since their establishment? What has been achieved by these two human rights protection mechanisms? What are the procedural commonalities and divergencies—starting from filing a complaint to rendering a decision? And finally, is the situation for individual human rights protection as dark and tragic as the quote above depicts?

Darker and more dangerous: High Commissioner updates the Human Rights Council on human rights

1

issues in 40 countries, Human Rights Council 36th_{session Opening Statement by Zeid Ra'ad Al Hussein,}

United Nations High Commissioner for Human Rights, available at http://www.ohchr.org/EN/NewsEvents/ Pages/DisplayNews.aspx?NewsID=22041.

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List of abbreviations

AC Advisory Committee

acdi Anuario Colombiano de Derecho Internacional AJCL American Journal of Comparative Law

AJIL American Journal of International Law Am. Political Sci. Rev. American Political Science Review APuz Aus Politik und Zeitgeschichte Ariz. St. L.J. Arizona State Law Journal

Art. Article

Arts. Articles

ASEM Asia-Europe Meeting

Austr. Yb. Int’l Law Australian Yearbook of International Law

Bd. Band

BGBl. Bundesgesetzblatt

BJIL Berkeley Journal of International Law B-VG Bundesverfassungsgesetz

c. contre

CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

CERD Convention on the Elimination of All Forms of Racial Discrimination

CDDH Steering Committee for Human Rights

CDDH-GDR Reflection Group on the Reinforcement of the Human Rights Protection Mechanism

CETS Council of Europe Treaty Series

Cf. Compare/Confere

(UN) CHR Commission on Human Rights CM Committee of Ministers

CoE Council of Europe

COLR Cork Online Law Review

COM European Commission of Human Rights

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dec./déc. decision/décision

DARIO Draft Articles on the Responsibility of International Organizations DH-SYSC Committee of Experts on the system of the European Convention

on Human Rights

Duke J. Comp. & Int’l L Duke Journal of Comparative & International Law ECHR European Convention on Human Rights

ECJ European Court of Justice ECOSOC Economic and Social Council ECtHR European Court of Human Rights ed./eds. editor/editors

E.g. Exempli gratia

EGMR Europäischer Gerichtshof für Menschenrechte EGMRKHG EGMR Kostenhilfegesetz

EJIL European Journal of International Law

ELR European Law Review

ELTE LJ. ELTE Law Journal

EMRK Europäische Menschenrechtskonvention

et al. et altera

EU European Union

EuGRZ Europäische GRUNDRECHTE-Zeitschrift

EUR EURO

f./ff. following

FIAN Food First Information and Action Network F.R.D. Federal Rules Decisions

FS Festschrift

GA General Assembly

GC Grand Chamber

SG Secretary-General

Harv. Int'l L. J. Harvard International Law Journal HHRJ Harvard Human Rights Journal

HJIL Heidelberg Journal of International law HRC Human Rights Council

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HRLR Human Rights Law Review

Hrsg. Herausgeber*in

HRQ Human Rights Quarterly

Ibid. Ibidem

ICC International Criminal Court

ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice

ICLQ International & Comparative Law Quarterly

ICSECR International Covenant on Social, Economic and Cultural Rights ICSID (Convention) International Centre for Settlement of Investment Disputes

(Convention)

ICTR International Criminal Tribunal for Rwanda

ICTY International Criminal Tribunal for the former Yugoslavia i.d.R. in der Regel

IJOPAGG International Journal of Politics and Good Governance ILC International Law Commission

ILO International Labour Organization Intl. Rev. of the Red Cross International Review of the Red Cross IO International Organisation

Israel Yb. on Human Rights Israel Yearbook on Human Rights JBl. Juristische Blätter

Jg. Jahrgang

JZ Juristenzeitung

lit. litera

LJIL Leiden Journal of International Law Melb. J. Int’l Law Melbourne Journal of International Law

MRR Menschenrechtsrat

NATO North Atlantic Treaty Organization NGO Non-governmental organisation NHRI National Human Rights Institute No./Nos. Number/numbers

NR./Nr. Nummer

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OECD Organisation for Economic Co-operation and Development OEEC Organisation for European Economic Co-operation

OHCHR Office of the United Nations High Commissioner for Human Rights

p. page

PACE Parliamentary Assembly para./paras. Paragraph/paragraphs

PCIJ Permanent Court of International Justice

PJIEL Pécs Journal of International and European Law PLO Palestinian Liberation Organization

REC Recommendation

Res./RES Resolution

RUDH Revue universelle des droits de l’homme S. Afr. Yb. Int’l L. South African Yearbook of International Law Santa Clara L. Rev. Santa Clara Law Review

SC Security Council

SG Secretary General

Temp. L. Rev. Temple Law Review

TILJ Texas International Law Journal U. Chi. Legal F. University of Chicago Legal Forum UCL University College London

UDHR Universal Declaration of Human Rights

UK United Kingdom

UN United Nations

UNC United Nations Charter

UNESCO United Nations Educational, Scientific and Cultural Organization UNMIK United Nations Interim Administration Mission in Kosovo UNTS United Nations Treaty Series

US/USA United States/United States of America

v./vs. versus

Vand. J. Transnat’L. Vanderbilt Journal of Transnational Law

Vol. Volume

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WGC Working Group on Communications WGS Working Group on Situations

WW World War

ZaöRV Zeitschrift für ausländisches öffentliches Recht und Völkerrecht Zfmr Zeitschrift für Menschenrechte  

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Part I Introduction

A. General remarks and reason for research 1

B. Research objective 2

C. Methods 3

Part II

The Human Rights Law system of the HRC of Europe

Chapter One: The European Convention on Human Rights and Fundamental Freedoms 5 A. The European Dream: Fears, motives and visions 5 B. The establishment of the ECHR: About the desirable maximum and actual acquisitions 7 I. The ‘Teigten Report’ as impetus for the evolution of the ECHR 7

II. Purpose and function 8

III. The original institutional architecture of the Strasbourg machinery 9

1. General remarks 9

2. ‘The Club of the Three’ 11

IV. The growth of the 47 12

V. The first procedural framework in respect of individual complaints 14 C. From ‘the Club of the Three’ to a permanent Court and further 17

I. The 9th Protocol 17

II. The 11th Protocol 17

1. Criticism, (external) developments and (internal) impasses 17

a. General aspects 17

b. System-related criticism 18

c. External developments and internal impasses 19

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a. The idea of a full-time Court 20 b. Committing to the existing system 21

c. A Two-tier system 21

3. ‘The Stockholm compromise’ 22

a. New institutional dimensions: A permanent Court 22 b. Mandatory jurisdiction on a European level 23

c. Procedural attainments 23

d. Approaches and considerations: Ensuing unavoidable negotiations in sight 24

III. The 14th Protocol 25

1. Identifying the problem: The ECtHR as a victim of its own success 26 2. Finding a balance: Individual protection vs. constitutional functions 28 a. First practical steps towards improvement 28 b. The Evaluation Group’s Report as the initial impulse 29

c. Debate and reactions of the CDDH 30

3. Protocol 14: the most significant measures 32

a. The single-judge formation 32

b. Additional competences for the Committee of three judges 32 c. Introducing a new admissibility criterion to the ECHR 33

d. General approaches and reactions 34

IV. Further actions 35

1. The pilot procedure 35

2. To be continued: Protocols yet to come 36

a. General remark 36

b. Protocol No. 15 37

c. Protocol No. 16 38

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A. General commentary 38

B. Strasbourg’s actors 40

C. Procedure to individual complaints 41

I. Lodging of a complaint: The stage of admissibility 41

II. Proceedings before the Court 41

1. The single-judge 41

2. Committees and Chambers 42

3. The Grand Chamber 43

Part III The United Nations

Chapter Three: The evolution of a Human Rights machinery 45 A. Fears and visions on the international level 45 B. The UN-Human Rights Commission: First concrete steps and acquisitions 46 I. The Commission’s position and purpose 46 II. The original institutional architecture 48

1. The original 18 48

2. The world’s new architecture: Continuous expansion of the original 18 49 3. The Sub-Commission on Prevention of Discrimination and Protection of Minorities 50 III. The first procedural attainments: ‘No power to take Action’ but ‘standard-setting’ 51

1. ‘No Power to take Action’ 51

2. The International Bill of Human Rights 53

3. First steps to take Action 54

b. ECOSOC Resolution 728 F (XXVIII) 55

IV. From standard-setting to the protection of human rights: Resolution 8 (XXIII) 56

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I. General remark 57

II. Resolution 1235 (XLII) 57

1. Implementing the public ‘1235-procedure’ 57 2. Procedural and substantive difficulties 58

a. General remarks 58

b. Standing to forward complaints to the UN Commission 59

c. Individual communications 60

d. Targeted situations of human rights violations 61 e. Final and decisive approaches: The separation of procedures 62 III. A complaint procedure: Resolution 1503 (XLVIII) 63

2. The procedural and institutional framework 65 a. Secretariat: The initial screening process 65 b. The Working Group of the Sub-Commission 66

c. The Sub-Commission 66

d. The Working Group of the Commission on Human Rights 67

e. The Commission on Human Rights 68

f. The Commission on Human Rights: Extension of final actions 69

3. Particular critical aspects 70

D. The remise of the Commission and the establishment of the Human Rights Council 72 I. The Commission on Human Rights: A paralysed body 72 II. The establishment of the UN-Human Rights Council 73

2. GA Resolution A/RES/60/251 74

3. Institutional components 75

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Chapter Four: Synopsis of the current United Nations Human Rights Council machinery 76

A. General commentary 76

B. Geneva’s actors 77

C. Procedure to individual complaints 78

I. Filing a complaint: The stage of admissibility 78 II. Proceedings before the Working Groups 80

1. Working Group on Communications 80

2. Working Group on Situations 81

3. The Human Rights Council 81

Part IV Comparison

Chapter Five: The Origins 83

A. The political dimension to the Human Rights Law process: General intentions and positions 83 I. (Human rights) protection needed on the European level 83

1. The political reality 83

2. Accomplishing the initially visualised European idea within the CoE 85 II. The International community seeking for (human rights) protection 86

1. Initial intention and motives 86

2. The UN as an international instrument for peace and collective security 87 B. The political dimension and its initial impact on the human rights protection system 88 I. Europe: Concrete concessions for human rights law protection? 88 II. Embedding human rights law fundaments into the UN system 89

C. Differences and commonalities 90

D. Concluding remarks 91

Chapter Six: The Acquis 92

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B. The decision makers 92

I. Decision-making bodies 92

1. The diversity of procedures and its decision-making bodies 92 2. The ECtHR and the HRC: The legal characteristic and nature of the bodies 93

a. General considerations 93

b. Legitimacy by the establishment according to international law 94

aa. General remark 94

bb. The ECtHR 94

cc. The HRC 95

c. Permanency of existence 95

bb. The ECtHR 95

cc. The HRC 95

d. Resorting to international law 96

bb. The ECtHR 97

cc. The HRC 97

e. Parties to the proceedings 97

f. The actors: Who are the decision-makers? 97

aa. General remarks 97

bb. The ECtHR 98

(1) General remarks 98

(2) Selection process 98

(3) Qualifications and further requirements 99

cc. The HRC 101

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(2) Selection process 102

(a) The Human Rights Council 102

(b) The WGS 102

(c) The WGC 103

(3) Qualifications and further requirements 103

(a) The Human Rights Council 103

(b) The WGS 104

(c) The WGC 104

g. Legal nature of acts 105

bb. The legal acts 106

(1) The ECtHR 106

(2) The HRC 106

h. Interim remarks 106

II. Issues of concern: Politicisation, independence, and impartiality 108 1. Politicisation: The election of adjudicating organs 108

b. The ECtHR 108

c. The HRC machinery 109

2. Impartiality and independence 111

a. General remark 111 b. The ECtHR 111 c. The HRC 112 3. Conflict of interest 114 a. The ECtHR 114 b. The HRC 115

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III. Differences and commonalities 116

IV. Concluding remarks 117

C. Lodging a complaint 117

I. Administration: Formal criteria and content of applications 117

1. The ECHR-procedure 117

2. The 5/1-procedure 119

3. Differences and commonalities 121

4. Concluding remarks 121

II. Language 121

1. Language and International Law 121

2. Language criteria in the external communication 122 a. Official languages of the ECtHR and the HRC 122

aa. The ECHR-procedure 122

bb. The 5/1-procedure 122

b. Lodging a complaint: the use of languages by complainants 122

c. Proceedings before the bodies 123

aa. The application of languages by complainants 123

(1) The ECHR-procedure 123

(2) The 5/1-procedure 124

bb. The utilisation of languages by a government concerned 125

cc. The utilisation of languages by third parties and others 125

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d. Language and decisions 126

3. Differences and Commonalties 126

III. Legal representation 128

1. General remark 128

2. Concepts of legal representation of the ECtHR and the HRC 128 a. The representation of individuals 128

b. The representation of States concerned 129

c. The representation of third parties 130

IV. Financial aspects: Costs, fees and legal aid schemes 132

1. Financial resources and justice 132

2. Costs, expenses and fees 133

a. The Government’s costs 133

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b. The applicant’s costs 134

c. Third party interveners’ costs 135

d. Court fees 135

3. Financial aid schemes 135

a. The ECHR-procedure 135

b. The 5/1-procedure 136

V. Interim legal protection 137

1. The concept of interim measures in human rights law 137 2. The implementation of interim measures 138

D. The stage of admissibility 142

I. General remarks 142

II. Jurisdiction of the ECtHR and the HRC 143

1. Ratione materiae 143

a. The applicable substantive law of the two mechanisms 143 aa. General conceptualisation of the substantive framework 143

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(2) The 5/1-procedure 143 bb. Different scope of substantive law 144 (1) The 5/1-procedure: ‘All human rights’ 144 (a) General considerations: ‘All human rights’ 144 (b) Focal point: The Universal Declaration of Human Rights 145 (c) Other sources of human rights 147

(d) Legally binding force 149

(2) The ECHR-procedure: The ECHR 151 (a) General considerations: The ECHR 151 (b) Other human rights instruments and sources 151 (3) ‘All human rights’ v. ‘ECHR-rights’ 152

cc. Reservations 153

dd. Restrictions: Requirements to the severity and gravity of violations 155

(1) General considerations 155

(2) The application of restrictive elements by the ECtHR 156 (a) Article 35 para. 3 lit. b ECHR: ‘A significant disadvantage’ 156 (b) Elements and definitions of ‘a significant disadvantage’ 156

(aa) The Court’s approach 156

(bb) Restrictive element: Significant financial disadvantage 157

(c) Safety clause 158

(3) The application of restrictive elements by the HRC 159

(a) Resolution 5/1 para. 85 159

(b) Elements of ‘a consistent pattern of gross violations’ 161

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(bb) Quantitative element 163

(cc) Timely element 165

(dd) Intentional element 165

b. Differences and Commonalities 165

c. Concluding remarks 166

2. Ratione personae 167

b. Active legitimation 167

cc. Requirements for complainants 169

(1) Locus standi 169

(a) Individuals 169

(aa) The ECHR-procedure 169

(bb) The 5/1-procedure 169

(b) NGOs, group of individuals and other entities 170

(aa) The ECHR-procedure 170

(bb) The 5/1-procedure 171

(c) Victim status 172

(aa) Direct victim(s) 172

α) The ECHR-procedure 172

β) The 5/1-procedure 173

(bb) Decease of the direct victim 176

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(dd) Indirect victim(s) 180

(ee) Loss of victim status 182

(ff) The 5/1-procedure: Specific requirements 183

(2) Capacity to act in court 185

(a) The ECHR-procedure 185

(b) The 5/1-procedure 185

dd. Third parties 186

c. Passive legitimation 188

(1) General remark 189

(2) All States vs. UN Member States 190 (3) Resistance and aggression: US withdrawal from the HRC 2018 191

cc. Further constellations 192

(1) Private individuals 192

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(aa) General approach 194

(bb) Approach relating to acts of the United Nations 195

α) General consideration 195

β) The ‘Behrami case’ 195

γ) Further development of the ‘UN-jurisprudence’ 197

δ) Exemplification 197

(aa) General remarks 198

(bb) International organisations: applicability of the UDHR 199 (cc) International organisations as addressees 200 α) Compatibility with the 5/1-procedure 200

β) Application of DARIO 202

(3) The Human Rights Council and non-sovereign States 202

d. Differences and commonalities 204

e. Concluding remarks 205

3. Ratione temporis 206

b. The conceptualisation of the ECtHR and the HRC 206

(1) General consideration 207

(2) Aspects referring to elements of ratione temporis 207 (a) Temporal character of violations: ‘ongoing patterns’ 207 (b) Violations taking place before the adoption of Resolution 5/1 208 (c) Transition period: From the CHR to the HRC 209

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c. The ECHR-procedure: ‘continuing violations’ 209

e. Concluding remarks 211 4. Ratione loci 211 a. General considerations 211 b. The ECHR-procedure 212 c. The 5/1-procedure 213 d. Specificum: Extraterritoriality 214

aa. General consideration 214

bb. Extraterritorial actions and the ECHR-procedure 214 cc. Extraterritorial actions and the 5/1-procedure 216

(1) Resolution 5/1 216

(2) Resolution 5/1 in the light of the international tenor 217

e. Differences and commonalities 220

f. Concluding remarks 220

III. Further admissibility criteria 221

1. Exhaustion of domestic remedies 221

bb. Elements of exhaustion of remedies 223 (1) ‘Vertical exhaustion of domestic remedies’ 223 (2) ‘Horizontal exhaustion of domestic remedies’ 224

bb. Definition: Domestic remedies 226

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(a) General considerations 226 (b) Multiplication of remedies and victims 228 (c) Definition: ‘unreasonably prolonged’ 228 (2) National Human Rights Institutions 230

(3) Horizontal exhaustion 231

cc. Practical aspects and critics 232

c. Differences and commonalities 233

d. Concluding remarks 233

2. Time limit for the submission of complaints 233

c. Differences and commonalities 235

3. Specific reasons for procedural incompatibility 236

a. Anonymity 236

bb. The ECHR-procedure 236

cc. The 5/1-procedure 236

b. Manifestly ill-founded and incompatible with the legal framework 237

c. Abuse of the right to petition 239

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4. Non-duplication: Res judicata and Litis pendens 242

bb. Res judicata 242

(1) General remark 242

(2) Identical claimant 243

(3) Identical alleged violation 244

(4) Identical substance 244

cc. Litis pendens 245

dd. Definition: Proceeding of international investigation or settlement 245

bb. Non-duplication of pending cases: ‘already being dealt with’ 248 cc. Non-duplication of settled cases 250 dd. Non-duplication of pending cases: Specific constellations 254 (1) Duplication within the HRC: ‘Identical country, divergent situation’ 254 (2) Duplication within the HRC: ‘Identical country, identical situation’ 255 (a) Parallelism within the confidential procedure 255 (b) Parallelism within the HRC’s public procedures 255 (3) Duplication with other complaint mechanisms 259

(a) UN Treaty Bodies 259

(b) United Nations or similar regional complaint procedure 260

c. Differences and commonalties 261

E. Decision-making 262

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II. ‘Decisions’ taken concerning matters of admissibility 262

a. Initial 'decision' on admissibility 264 b. ‘Decision’ on admissibility in the further course 265 3. Right to appeal the decision of admissibility 265

III. ‘Decisions’ taken after declaring a case admissible 266

a. The Human Rights Council 268

aa. Measures and instruments 268

bb. Further instruments 270

cc. Resolutions: Quality of the HRC’s resolutions 271

b. The Working Group on Situations 272

c. The Working Group on Communications 273

3. Right to appeal 274

IV. Differences and commonalties 275

V. Concluding remarks 275

Part V Final remarks

Chapter Seven: Concluding remarks and prospects 276

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B. Prospects 279 Part VI Table of sources A. Bibliography 281 B. Online resources 298 C. Sources of law 303

I. Decisions, Opinions, Recommendations, Resolutions and Reports 303

II. International Law 310

III. National Law 310

D. Diverse Reports and commentaries 311

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Part I Introduction

A. General remarks and reason for research

International law primarily was made by sovereign States for sovereign States. This consequently reflected the former basic tenor as regards to the absence of individuals as subject to law on the international fora. Thus relying on the principle of sovereignty, the absence of any superior 2

authority within the international community, and hence, a non-interference with municipal concerns, caused human rights abuses often to remain undetected. Most often those abuses were not investigated, or detected and only partially investigated but, nonetheless, unpunished. Eventually, it 3

was the appalling atrocities of World War II that led to a tremendous and continuing restructuring of the traditional concept of international law. In accordance with the Nuremberg judgment 1946, it 4

has been commenced to be clarified that individuals as well as States are eligible subjects to international law, and, therefore, can be held responsible for conduct that results in violations of international law. Moreover, the international community also started to indicate that individual rights need to be protected accurately on the international level. In the further course, this approach ultimately has been promulgated in several international treaties, such as the Universal Declaration of Human Rights and the European Convention of Human Rights and Fundamental Freedoms . 5

Furthermore, in respect to the general conceptualisation of human rights law, it resulted in the disruption of the former underlying and strictly utilised ‘Prinzip der Mediatisierung’. 6

This marked the point in human rights law history whereby a multitude of international human rights law treaties emerged. In respect of international human rights law, individuals gained status within international law and became possessors of specific rights, but the agency to effectively claim these rights still has been denied at the international fora for quite some time. However, law

Cf. Lauterpacht, International Law. Being the collected papers of Hersch Lauterpacht. Volume I. The

2

General Works (1970) 9 ff.; Rehman, International Human Rights Law2 _{(2010) 16-17; Fischer/Köck,}

Völkerrecht. Das Recht der universellen Völkerrechtsgemeinschaft6_{(2004) 31 Rz. 12 ff.; Schermers,}

Acceptance of International Supervision of Human Rights, LJIL, Vol. 12, 1999, 821 (822). Similar Rehman, Law2_{, 4 ff.}

3

Janis/Kay/Bradley, European Human Rights Law. Text and Materials3_{(2008) 4-12; Rehman, Law}2_{, 4.} 4

Zoller, International Criminal Responsibility of Individuals for International Crimes, in Ginsburgs/Kudriavtsev

5

(eds.), The Nuremberg Trial and International Law (1990) 99 (101); Janis/Kay/Bradley, Law3_{11 ff.}

Fischer/Köck, Völkerrecht6_{, 246 Rz. 663; Stadlmeier, Völkerrecht I}5 _{(2009) 11-12.} 6

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needs appropriate enforcement in order to be effective. It therefore was within the power of 7

sovereign States to offer appropriate protection mechanisms. The consciousness in this regard increased and has been followed by a steady and vast expansion of human rights protection mechanisms, which led to a ‘labyrinth’ of complaint procedures, spreading on the international, European and national fora throughout the decades. 8

At this juncture, it is the individual complaint procedure before the European Court of Human Rights and before the United Nations Human Rights Council, and its subsidiary Working Groups, that are probably catching one's attention rather quickly. They are ‘eye catchers’ especially because the prior is well known and of significance due to the fact that it is the ‘one’ model example of a fully judicial (regional) human rights machinery. And the latter is broadly known and relevant based on the fact that it is heavily criticised for not being such a model example of an (international) human rights machinery, but instead being a sole political institution. Thus, the reason for the research is the interest in revealing the procedures’ specifications, commonalities and divergencies with regard to their establishment, development and current functioning.

B. Research objective

The two individual complaint procedures have been thoroughly examined and discussed as such. For instance, comparisons have been made amongst the human rights bodies of the United Nations and respective mechanisms in general. Conversely, comparisons have been made amongst the most relevant regional human rights protection procedures. Thus, it is of interest to perform a direct comparison between the individual complaint procedure of the UN Human Rights Council and the European Court of Human Rights. This interest is primarily based on the fact that, regarding the two respective proceedings, no such detailed and comparative analysis can be found whereby their procedural aspects are unravelled.

At this juncture, it shall be explicitly pointed out that other mechanisms of the UN Human Rights Council, further UN related individual complaint procedures or other proceedings of the ECtHR shall not be part of the comparison. It is of importance to be aware of that fact in order to avoid confusion; especially, in regard to the United Nations’ magnitude of diverse bodies and proceedings. Ultimately, in the following course of the work, when it is referred to the

Cf. Schermers/Blokker, International Institutional Law5 _{(2011) § 556, § 597 ff.} 7

For instance, Romano, The Proliferation of International Judicial Bodies. The Pieces of the Puzzle, NYU.

8

J.Int’l L.&Pol., Vol. 31, No. 4 (1999) 709 (709-711); Mackenzie/Romano/Shany, The Manual on International Courts and Tribunals2_{(2010) IX ff.; Rehman, Law}2_{, 28 ff.}

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competencies and architecture of the UN Human Rights Council, it solely shall be understood in conjunction with the UN Human Rights Council individual complaint procedure. The same applies to the European Court of Human Rights. Therefore, in the following course of the analysis of the proceedings, it only is referred to the European Court of Human Rights’ individual complaint procedure. However, related or similar regional and international instruments are utilised as guidelines and parameters for interpretation; especially, with regard to the UN Human Rights Council machinery since most material is confidential or inexistent. Furthermore, reference that is being made to the ‘5/1 procedure’ concerns the current HRC individual complaint procedure after the abolishment of its predecessor.

When comparing the individual complaint procedures, a diversity of questions and considerations come to one’s mind. On the basis of the assumption that one of the mutual initial cores was, and still is, to protect individuals from abuses of international human rights law, it could be concluded that the protection systems are only of a slightly diversified nature. Nonetheless, a second merit quickly reveals that, although being based on a profound common denominator, the two bodies and respective mechanisms are far more divergent than it is visible at first sight. It could be summarised under the headline: ‘Individual complaint procedure mechanism and individual complaint procedure mechanism are not necessarily the same’.

The research therefore shall provide for the possibility to gain a sensitisation and shed light on the aforementioned headline; specifically, concerning the procedural architecture and handling of individual complaints. The illustration and analysis shall further offer a comprehensive insight into the specific legal regimentations and the background of the proceedings. Therefore, commonalities and divergencies of the two systems are exemplified, whereby the factual impacts for the individual human rights protection and the position of the different parties involved are depicted precisely. Particular focus is laid on the ‘claimant’, ‘the defendant’ and the ‘judicial’ authorities. The comparison shall provide a review in form of a comprehensive illustration of the two protection mechanisms, reaching from the initial conceptualisations to the present functioning and potential future options.

C. Methods

In respect of the circumstance that both of the individual complaint procedures are closely interlinked with the international organisations that have established the mechanisms, a first approach is to discuss the fundamental purpose and targeted aims for the foundation of the organisations. In the further course, the specific direction of impacts that influenced the subsequent

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realisation of human rights and respective protection mechanisms as a tool for the particular target, which continuously caused reciprocative consequences, shall be depicted. Thus, the revelation of the main aim, purpose and established tools shall be exemplified in order to demonstrate the significance of the general initial tenor as regards to the further conceptualisation of the individual complaint procedures.

Part II refers to the European system of Human Rights protection law and procedures. Chapter One examines the circumstances on the European level. It exemplifies the position and role of human rights law by revealing the initial reason and targeted aim. Therefore, a brief discussion of the HRC of Europe is provided. The illustration offers the necessary knowledge as regards the essential ‘cornerstones’ that severely and continuously characterised the individual complaint procedure. The debate comprises further substantial information: in particular, it depicts the realisation of the initial direction of impacts and their subsequent adaption in conjunction with issues, problems and obstacles, respectively; particular focus is laid on the establishment of the ECHR and its Protocols. Moreover, the impact of the mutual interdependence of the CoE and the enforcement-machinery of the ECHR shall be depicted. In its final part, Chapter Two exemplifies the current procedural and institutional architecture.

Part III provides for an insight into the human rights protection system that has been incorporated under the auspices of the former UN Commission on Human Rights and the currently acting UN Human Rights Council. Chapter Three comprises the illustration of backcloths of the United Nations and the following implementation of human rights law as well as respective protection mechanisms. Chapter Four concludes with an illustration of the contemporary individual complaint procedure before the UN Human Rights Council and its two subsidiary Working Groups.

Part IV comprises a detailed comparison of the two mechanisms. Chapter Five compares the previous exemplification of the phase of implementing human rights law and establishing the individual complaint procedures. In this Chapter, the origins of the institutions and systems are compared, whereby the specifications, which led to such diverging systems, are the focal point. Chapter Six comprises a comprehensive discussion in respect of the acquis of both systems. The analysis ranges from a discussion of the administrative requirements of submitting an application to the legal character of the decisions that are eventually rendered by the respective bodies. In context to each specific stage of the proceedings, particular groups of questions are utilised to depict the most relevant, questionable or even unclear points. The analysis thereby starts by discussing the decision-making bodies and offers an answer to the question: Who are the decision-makers? Furthermore, highly controversial matters concerning impartiality, politicisation and independence

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are discussed. This analysis is followed by a comparison of administrative aspects: formal criteria and content of an application, official working language, legal representation, financial aspects and interim legal protection. The discussion continues by examining matters concerning the stage of admissibility. This part of the analysis is comprising an in-depth discussion of the following elements: ratione materiae, ratione personae, ratione temporis and ratione loci. Moreover, further admissibility criteria are discussed and compared profoundly: for instance, exhaustion of domestic remedies, litis pendens and res judicata, procedural incompatibility due to anonymity, abuse of the right to petition, manifestly ill-founded claims and non-compliance with the time-limit to file a complaint. In the final Part of this Chapter, the decisions that are rendered by the two mechanisms are analysed.

Part V concludes with a final remark accompanied by a reflection on the prospects of the two individual complaint mechanisms.  

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Part II

The Human Rights Law system of the HRC of Europe

Chapter One: The European Convention on Human Rights and Fundamental Freedoms A. The European Dream: Fears, motives and visions

The consciousness of the peoples of Europe had experienced a transformation due to the threats to their political, social and ethical values that were incorporated into the European societal and legal structures before the totalitarian regime of the National-socialists acquired absolute power. The faith within Europe had been destroyed, and a confident coexistence of the peoples appeared utterly utopian in consideration of the ruins, misery and trauma that remained after World War II. Nevertheless, while Europe was struggling with the aftermath of World War II, the idea of a European federal solution for the future development of peace and re-unification attracted notice. 9

Carried by unprecedented strength and courage, the aspiration for the desired peace guaranteeing unification and the defence of human dignity against any kind of totalitarian regime revived surprisingly quickly.10 11, _{This particular effort for re-unification has been heavily, but not solely,}

based on the want for lasting peace and security. Thus, the following aspects additionally have been key elements for the entire political and subsequent legal process. Peace and security not only meant the prevention of a second Nazi-Germany, but also the nations’ neutralisation as well as recovery in conjunction with a certain call for new political frameworks. Furthermore, the emergence of separatism from the Allies combined with the resumption of European identity and sovereignty was of significance. In this regard, the aspiration for a completely new world order,

Prior to WW II, several ideas and concrete proposals have been elaborated regarding the establishment of

9

unification related European institutionalisation and correlating peace securing processes, nonetheless, non of the proceedings ever led to a concrete or particular denominator comparable to the HRC of Europe; even so, the League of Nations, although it did not achieve the task of gaining lasting peace or endurance, has to be taken into consideration. Illustration of the historical integration process in Salesny et al., Europa im Werden-Eine Idee wird Wirklichkeit. Dokumentation über die Integration Europas. Ein Beitrag aus Anlaß des 25. Jahrestages der Gründung des Europarates (1974) 18-22, 159 f.; Philip, Le problème de l’Union européenne (1950) 142 ff.; further, specifically, Housden, The League of Nations and the Organisation of Peace (2014) 21 ff.; Heinrich, The Process that Led to the Creation of the HRC of Europe and Its Assembly, in Kleinsorge (ed.), The Council of Europe (2010) 37 ff.

Cf. Carstens, Das Recht des Europarats (1956) 9 f.; further, perspectives and analyses of the European

10

idea are illustrated in Schwimmer, The European Dream (2004) 17 ff., 115 ff.

It shall also be borne in mind that in reference to the general embracement of a re-integration policy, the

11

positive resonance obviously had an opposite perspective as well. The nations have been split into defeated and victorious ones, which meant that it took some strength to abandon the barriers so that the victims of the fascist aggressions could accept the now defeated nations as trustworthy partners. See, Lipgens/Loth, Documents on the History of European Integration: The Struggle for European Union by Political Parties and Pressure Groups in Western European Countries 1945-1950, Volume 3 (1988) 3.

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which would leave classic principles aside partially arose in the form of considering to transfer specific competences to a superior power to guarantee peace. A further decisive element for re-12

unification was the economic aspect. Europe had been struggling with poverty, malnourishment, 13

shortage of resources, lack of economic output, etc. Thus, at the beginning of the reconstruction 14

process in the West, it was declared as an advantageous proceeding to emphasise a unified Pan-European rehabilitation; especially, accelerating on the process of co-operative economic and industrial recovery. 15

Besides federalist approaches for a re-unification, generally, unionist ideas were also considered a possible guarantor for the respect of human dignity and democracy, which were considered preconditions for peace, security and the prevention of a re-occurrence of fascism and totalitarian regimes. Therefore, Europe had to find a solution for its future position in order to re-gain 16

importance in world politics. And eventually, at the time, a Union seemed to offer the best (political) possibility to act as the necessary intermediary between the two superpowers, the US and the Soviets, which severely influenced the independence of Europe. The fewer tensions and disagreements between the East and the West, the more likely that European nations could emerge as independent, cooperating actors. The collision of the systems of the superpowers and the emerging iron curtain required well-considered, but also fast, reactions in respect of the ever intensifying bloc-building process within Europe since the division of Europe had already reached an advanced level. Nevertheless, the idea of unification had still been intensified, especially by the 17

ideal of resistance regarding fascist regimes. It seemed more important to quickly achieve a 18

solution in order to avoid further aggression rather than dragging on the re-unification process because of some ideological disagreements. This eventually led to the ‘West-European’ solution

Cf. Lipgens/Loth, Documents 2; Bates, The Evolution of the European Convention on Human Rights. From

12

its inception to the creation of a permanent Court of Human Rights (2010) 33 ff. Cf. Lipgens/Loth, Documents 1 ff.

13

Cf. Schwimmer, Dream 55 ff.; ibid. 89 ff.

14

For instance, Carstens, Recht 9 f.; Gasteyger, Europa zwischen Spaltung und Einigung. Darstellung und

15

Dokumentation 1945-2005 (2006) 38; cf. Lipgens/Loth, Documents 70 f., 89 ff.

Peace is closely interlinked with certain principles, such as democratic policies, the rule of law, highest

16

ethical maxim, human rights and individual freedoms, so that, as a consequence, a deliberately initiated deprivation of basic rights could not be legitimated —under any circumstances. See, for instance, Robertson, Human Rights in the world (1972) 51; Bates, Evolution 47.

For instance, Lipgens/Loth, Documents 3 ff., 8; Gasteyger, Europa 33 ff., 39, 63 f.; Kleinsorge, The

17

Council of Europe (2010) 54, 58 f.

Cf. Robertson, Human Rights in the world (1972) 51.

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whereby the idea of a West-European family was introduced based on a Unionist concept. In the 19

words of Sir Winston Churchill: “[…] re-create the European family in a regional structure called, it may be, the United States of Europe. And the first step would be to form a Council of Europe.” 20

This marked the basis for the establishment of the HRC of Europe and the European Convention of Human Rights and Fundamental Freedoms.

B. The establishment of the ECHR: About the desirable maximum and actual acquisitions I. The ‘Teigten Report’ as impetus for the evolution of the ECHR

A draft Convention, mainly characterised by the ideas of Teigten, Dehousse and Maxwell-Fyfe, applied as a model during the ongoing discussions and attempts of drafting within the Parliamentary Assembly (PACE) and the Committee on Legal and Administrative Questions. Teigten precisely 21

captured the status quo and the desires in the first session of the PACE, when stating that all States bound themselves to respect fundamental rights. Therefore, they have accepted the principle of a collective guarantee, which they should be asked to implement in general and collective provisions combined with controlling mechanisms. 22

The theoretical desirable maximum would have been the elaboration of a complete European code, including all fundamental rights and freedoms, but the status quo at the time forced the abandonment of that particular extensive desire. It instead became clear that it should be achievable to define a few rights based on corresponding common definitions. In respect of the issue of defining the rights, in terms of the considered extent of specifying the rights and freedoms, the majority concluded that it was sufficient to implement solely an enumerated version of substantive guarantees based on the common heritage of the peoples of Europe. The opponents to the 23

reluctant attitude strongly advised to keep in mind that a proper protection without specific, but

Gasteyger, Europa 39, 63 f.; cf. Bates, Evolution 45 f.

19

Sir Winston Churchill cited in Brummer, Der Europarat. Eine Einführung (2008) 22.

20

Bates, Evolution 51 ff.; Schabas, The European Convention on Human Rights. A commentary (2015) 1999

21

ff.; Janis/Kay/Bradley, Law3 _13.

Preparatory Commission of the HRC of Europe, Committee of Ministers, Consultative Assembly (11 May -

22

8 September 1949), Collected edition of “Travaux préparatoires”, Volume I (1975) 44-48. Teigten speaks of a

collective enforcement system, for example, Teigten, Introduction to the European Convention on Human Rights, in Macdonald/Matscher/Petzold (eds.), The European System for the Protection of Human Rights (1993) 3 (12).

Cf. “[…] more uniform territory of Europe - based as it is on the same culture, and where the political

23

traditions follow the same main lines […].” in Preparatory Commission of the HRC of Europe, Committee of

Ministers, Consultative Assembly (11 May - 8 September 1949), Collected edition of “Travaux préparatoires”,

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instead with vague, laws is inefficient and unpractical. Eventually, the position prevailed that it 24

was better having a Convention than none. 25

II. Purpose and function

Concessions had been made and ideas had been chased. The first steps for a ‘European family’ were taken. The European Convention on Human Rights and Fundamental Freedoms was about to be born. Following the conception of material guarantees of the Universal Declaration of Human 26

Rights, the ECHR and the Protocols thereto not only enshrined substantive law, but also a judicial 27

enforcement machinery and conceptions of diverse procedures. When recalling the primary aim of the CoE, the aspect of re-unification clearly dominated the beginnings. The Member States gathered under a sort of ‘one common roof’ without losing their independence (even though that has been feared). The concept of a ‘common roof’ was of significance: firstly, this was of importance for the process of establishing a Convention, which eventually went beyond being solely a catalogue of rights. Secondly, in order to guarantee compliance with the declared aims of the family, safeguarding the common heritage and the realisation of human rights, it also had been pointed out that a strong and effective justice system in form of a collective enforcement machinery as described in the Preamble of the ECHR is a crucial role. 28

In regard of the initial raison d’être, the ECHR enshrines the common heritage of liberal democracy, the rule of law and human rights. Thereby, the Court considers itself as a guarantor for Bates, Evolution 88 f.; Preparatory Commission of the HRC of Europe, Committee of Ministers,

24

Consultative Assembly (11 May - 8 September 1949), Collected edition of “Travaux préparatoires”, Volume I

(1975) 106 ff. This argument has been brought up more often and precisely reflects the critics at a posterior juncture of the ECHR’s development, see the discussions in respect to Protocol 14 in Part II/Chapter One/C./ III.

Legal Committee, Ad Hoc Joint Committee, Committee of Ministers, Consultative Assembly (23 June - 28

25

August 1950), Collected edition of “Travaux préparatoires” of the European Convention on Human Rights

Volume V (1979) 228. Detailed chart of key issues and opinions in Bates, Evolution 90.

The European Convention on Human Rights and Fundamental Freedoms, 4 November 1950, CETS 5.

26

Entered into force 3 September 1953, after receiving the necessary 10 ratifications. Hereinafter referred to as ‘Convention’ or ‘ECHR’. In the following subsection, it is referred to the original version of the ECHR.

Interlink between the two documents as mentioned in the Preamble of the ECHR; also in Bates, Evolution

27

40 ff., Preparatory Commission of the HRC of Europe, Committee of Ministers, Consultative Assembly (11

May - 8 September 1949), Collected edition of “Travaux préparatoires”, Volume I (1975) 50; Rainey/Wicks/

Ovey, Jacobs, White, and Ovey: The European Convention on Human Rights7 _{(2017) 3.}

Cf. Harman/Wildhaber/Krüger, Report of the Evaluation Group to the Committee of Ministers on the

28

ECtHR, HRLJ, Vol. 22 (2001) 308 (308 f.); Egli, Zur Reform des Rechtsschutzsystems der Europäischen Menschenrechtskonvention, ZaöRV, Vol. 64 (2004) 759 (760); Greer, The European Convention on Human Rights. Achievements, Problems and Prospects (2006) 8 ff., 170 f.; Tomuschat, Individueller Rechtsschutz. Das Herzstück des “ordre public européen” nach der Europäischen Menschenrechtskonvention, EuGRZ (2003) 95 (96).

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the protection of these elements; namely, the so-called ordre public européen. It protects the 29

public order by entrenching a collective enforcement machinery so that a possible threat to the ‘European family’ can more easily be detected within the early warning system by granting individuals and States access to a transnational judicial body. The individual complaint procedure 30

thereby prevailed as an instrument for the protection and development of the European public order. In this context the individual complaint procedure comprises two predominant functions: firstly, on a subjective level, it offers individual justice; and, secondly, on an objective level, it proliferates the guarantee and the correlating development of the Convention rights. 31

III. The original institutional architecture of the Strasbourg machinery32

1. General remarks

The concrete idea of a Court of Justice and a Commission to deal with individual complaints was brought up. The latter would have built a form of practical barrier to avoid mischievous or frivolous individual complaints and, thereupon, it would have had to decide whether or not to refer the complaint to the Court striving for a final and binding judgment or to the CM in case of an intended political solution. It has been discussed controversially due to the presumption that the 33

establishment of a Convention is sufficient. As a consequence, the basic question arose whether 34

For instance, Lawless v. Ireland (No. 1), 14.11.1960, no. 332/57, ECHR. In his dissenting opinion Mr. G.

29

Maridakis refers to the public order that has been established in accordance with Art. 1 lit. b of the Statute of

the CoE when stating that it is the Court's duty to guarantee the European order that was established by the Convention; furthermore, in the Ireland-case the Court clarifies that the Convention creates objective obligations, which benefit from a collective enforcement, Ireland v. the United Kingdom, 18.01.1978, no. 5310/71, ECHR para. 239; In 1995, the ECtHR reiterated its position, when stating that the Convention is a constitutional instrument of European Public order, see also Loizidou v. Turkey (preliminary objections), 23.03.1995, no. 15318/89, ECHR [GC] para. 75.

Greer, Convention, 20, 170.

30

Egli, ZaöRV 2004, 762-764; cf. Harman/Wildhaber/Krüger, HRLJ 2001, 308 f.; Tomuschat, EuGRZ 2003,

31

95 ff.; Greer, Convention 165 ff.; further, Ireland v. the United Kingdom, 18.01.1978, no. 5310/71, ECHR para. 154. In this context, it shall also be mentioned that the Convention’s purpose and function has been left for fundamental discussion in connection with the debates in relation to the framing of Protocol 14.

In the following illustration of the historical development of the ECHR machinery it is referred to Articles of

32

the original version of the ECHR.

Legal Committee, Ad Hoc Joint Committee, Committee of Ministers, Consultative Assembly (23 June - 28

33

August 1950), Collected edition of “Travaux préparatoires” of the European Convention on Human Rights,

Volume V (1979) 44 ff.; draft Convention at 296; detailed Teigten in Macdonald/Matscher/Petzold, System 12 f.

34

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there is a need for a Court in general. Besides, it has been argued that a Commission would be 35

capable of covering any further problematic issues of individuals considering accused Convention breaches and the access to a Court would dangerously encourage destructive judicial activism. 36

Furthermore, by the constitution of a Court, a threat to sovereignty was foreseen allegedly, which successfully had been eradicated by Teigten, when, for instance, Teigten had argued that it is not a question of predominance but a matter of limitation of sovereignty on behalf of the law; further, the guarantees are of such a basic nature that the argument was held exaggerated. Teigten’s report 37

found approval by the majority. As a result, the PACE’s final draftings included a Court in 38

conjunction with the aforementioned Commission as a filter-organ. Thus, after the transmission of 39

the report, the CM’s Committee of government legal experts inaugurated their discussions. The 40

PACE definitely overestimated the readiness of the States to accept the illustrated proposals; not only, but also due to the institutional origin of the founding drafters, since the report was the result of parliamentarians, which went along with several resentments of the governmental opponents. 41

This led to the difficult political task of resolving the matter to what extent, assumed if any, there is a need for the Court; moreover, if a mechanism for individuals granting access to the Court and precision of the enumerated rights had to be evolved. In conclusion, in the early stages of the Strasbourg machinery, the institutional architecture has been conceptualised as a complex system including three organs as the main actors (‘The Club of the Three’). 42

Ibid. 184 f.

35

For instance, Bates, Evolution 66, 70 ff.

36

37

8 September 1949), Collected edition of “Travaux préparatoires”, Volume I (1975) 294; further ibid. at 63.

See ibid. at 220 ff.; reluctant opinions have been stated, ibid. at 294; see also in Bates, Evolution 64, 70.

38

Bates, Evolution 68 ff.

39

40

8 September 1949), Collected edition of “Travaux préparatoires”, Volume I (1975) 302 - 304. Detailed

session reports in Committee of Experts - Committee of Ministers Conference of Senior Officials (30 March - 17 June 1950), Collected edition of “Travaux préparatoires” of the European Convention on Human Rights, Volume IV (1977) 2-82.

Difficulties between the two organs illustrated in Robertson, The Council of Europe. 1949-1953. II, ICLQ,

41

Vol. 3, No. 3 (Jul. 1954) 404 (405, 412).

Schlette, Europäischer Menschenrechtsschutz nach der Reform der EMRK, JZ, Jg. 54, Heft 5 (1999) 219

42

(219 ff.); similar, Frowein, Zur Fortentwicklung des europäischen Menschen- und Grundrechtsschutzes, in

Börner/Jahrreiß/Stern (eds.), Einigkeit und Recht und Freiheit: Festschrift für Karl Carstens zum 70.

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2. ‘The Club of the Three’

The so called ‘Club of the Three’ consisted of the treaty-based European Commission of Human Rights and the European Court of Human Rights as stipulated in Art. 19 ECHR. Furthermore, 43 44

the CM as one of the two original organs of the CoE, functioned as the third member. The CM has 45

not been explicitly mentioned as the third judicial organ in preceded draftings. Nonetheless, it has been granted functions according to Arts. 32, 54 ECHR in order to meet the resentments of some of the members, especially, regarding sovereignty. The Commission had been constituted in 1954, 46

whereas the Court started its work in 1959. 47

In respect to the numerical composition of the COM and the ECtHR the following applied: Arts. 20 and 38 ECHR, respectively, defined that the number of members had to be equal to that of the High Contracting Parties. This led to an ever-increasing body and related difficulties as illustrated in the following paragraph. The organs met on a regular basis. In respect of the qualification of the 48

organs, the ECHR did not contain explicit conditions in regard to the ‘quality’ of the members to the Commission. Art. 39 para. 3 ECHR solely comprised necessary qualifications for the judges of the Court on the basis of which a member had to meet the requirements of a high moral character and appointment to high judicial office or competences of such nature. Further, the organs conducted their examinations according to established rules of procedure and, in the case of the ECtHR, it

Hereinafter referred to as ‘Commission’ or ‘COM’.

43

Hereinafter referred to as ‘Court’ or ‘ECtHR'.

44

As regards the organs detailed discussion in Robertson, Human Rights in Europe2 _{(1977) 140 ff., 197 ff.;} 45

Villinger, Handbuch der Europäischen Menschenrechtskonvention (EMRK) unter besonderer

Berücksichtigung der schweizerischen Rechtslage (1993) § 12, § 13, § 14; Matscher, Betrachtungen über

das Verfahren der Straßburger Konventionsorgane, in Nowak et al. (eds.), Fortschritt im Bewußtsein der

Grund- und Menschenrechte-Progress in the Spirit of Human Rights, Festschrift für Felix Ermacora (1988) 79; Kleinsorge, Council 104.

Leuprecht, The Protection of Human Rights by Political Bodies—The Example of the Committee of

46

Ministers of the HRC of Europe, in Nowak et al. (eds.), Fortschritt im Bewußtsein der Grund- und Menschenrechte—Progress in the Spirit of Human Rights, Festschrift für Felix Ermacora (1988) 95 (99); in general, Ravaud, The Committee of Ministers, in Macdonald/Matscher/Petzold (eds.), The European System for the Protection of Human Rights (1993) 645 (646); Robertson, Human Rights in the world. An Introduction to the study of the international protection of human rights2 _{(1982) 90; cf. furthermore, Matscher in Nowak et}

al., FS Ermacora 92.

In accordance with Article 25 para. 4 ECHR, 6 declarations were necessary for the Commission to

47

exercise the implied powers, and, further, the first election of judges shall be after the 8th _{ratification by virtue}

of Art. 56 ECHR. Also Frowein in Frowein/Peukert (Hrsg.), Europäische Menschenrechtskonvention. EMRK-Kommentar2 _{(1996) 3 Rz. 3.}

Cf. Art. 35 states that the Commission shall meet as the circumstances require; further, Heer-Reißmann,

48

Die Letztentscheidungskompetenz des Europäischen Gerichtshofes für Menschenrechte in Europa. Eine Untersuchung zum Verhältnis von EGMR und EuGH in Menschenrechtsfragen unter besonderer Berücksichtigung des Verhältnisses des BVerfG zum EuGH (2008) 70; Frowein in Börner/Jahrreiß/Stern, FS Carstens 329.

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ultimately rendered final legally binding judgments. The COM was granted a similar status, apart 49

from the fact that it lacked of the competence to render final legally binding judgments besides the decision on the admissibility. 50

With regard to the ECtHR’s characterisation, regardless of the specific theory or method that is utilised to conduct an analysis of the qualifications, the facts are as follows: the CM undoubtably 51

has been conceptualised as a political body, the COM predominantly has been qualified as a semi-judicial institution, whereas solely the Court has met the requirements in order to be qualified as a fully judicially-organised body. 52

IV. The growth of the 47

Since the CoE's formation the emphasis has been laid on the proliferation of Western democracies. This resulted in a certain negative connotation in the sense of a political stagnation and isolation in respect of enforcing collaboration on the other side of the iron curtain. However, the CoE did not remain the same size since its establishment. On the contrary, it grew massively. This was influenced by the slowly evolving idea of European integration as an inherent aspect to the CoE. 53

With regard to the expansion of the organisation to States other than Western European States, the principles and requirements for a State to become a member of the CoE that are stipulated in Articles 3 and 4 of the Statute of the CoE are of high relevance. The (Western) signatories concluded that every State which is willing to fulfil the provisions, aims and purposes constituted by the CoE may be invited to gain membership. When analysing Articles 3 and 4 Statute of the CoE, two categories of conditions need to be taken into account: the geographical and the political component. Firstly, the applying State has to be situated in Europe, at least partially. And secondly, it has to fulfil the concluded statutory requirements: accepting the rule of law, democracy and human rights. Furthermore, if necessary, the State has to be willing to take any appropriate national

Villinger, Handbuch § 15 Rz. 240 ff.

49

Ibid. § 12 Rz. 180.

50

Cf. in comparison Matscher in Nowak et al., FS Ermacora 93; critically, Villinger, Handbuch § 12 Rz. 180.

51

Schlette, JZ 1999, 220; Matscher, FS Ermacora 84, 88 f.; Villinger, Handbuch § 13 Rz. 205; cf. Mahoney/

52

Prebensen, The European Court of Human Rights, in Macdonald/Matscher/Petzold (eds.), The European

System for the Protection of Human Rights (1993) 621 (622).

Similar Winkler, The Council of Europe and the integration of eastern European states into Europe, in

53