Recherches sur les Etats et les Organisations internationales
European Treaty Series - No. 155
Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby *
The member States of the Council of Europe, signatories to this Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (hereinafter referred to as "the Convention"),
Considering the urgent need to restructure the control machinery established by the Convention in order to maintain and improve the efficiency of its protection of human rights and fundamental freedoms, mainly in view of the increase in the number of applications and the growing membership of the Council of Europe;
Considering that it is therefore desirable to amend certain provisions of the Convention with a view, in particular, to replacing the existing European Commission and Court of Human Rights with a new permanent Court;
Having regard to Resolution No. 1 adopted at the European Ministerial Conference on Human Rights, held in Vienna on 19 and 20 March 1985;
Having regard to Recommendation 1194 (1992), adopted by the Parliamentary Assembly of the Council of Europe on 6 October 1992;
Having regard to the decision taken on reform of the Convention control machinery by the Heads of State and Government of the Council of Europe member States in the Vienna Declaration on 9 October 1993,
Have agreed as follows:
The existing text of Sections II to IV of the Convention (Articles 19 to 56) and Protocol No. 2 conferring upon the European Court of Human Rights competence to give advisory opinions shall be replaced by the following Section II of the Convention (Articles 19 to 51):
(*)Since its entry into force on 1 November 1998, this Protocol forms an integral part of the Convention (ETS No. 5).
"Section II – European Court of Human Rights
Article 19 – Establishment of the Court
To ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the protocols thereto, there shall be set up a European Court of Human Rights, hereinafter referred to as "the Court". It shall function on a permanent basis.
Article 20 – Number of judges
The Court shall consist of a number of judges equal to that of the High Contracting Parties.
Article 21 – Criteria for office
1The judges shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence.
2The judges shall sit on the Court in their individual capacity.
3During their term of office the judges shall not engage in any activity which is incompatible with their independence, impartiality or with the demands of a full-time office; all questions arising from the application of this paragraph shall be decided by the Court.
Article 22 – Election of judges
1The judges shall be elected by the Parliamentary Assembly with respect to each High Contracting Party by a majority of votes cast from a list of three candidates nominated by the High Contracting Party.
2The same procedure shall be followed to complete the Court in the event of the accession of new High Contracting Parties and in filling casual vacancies.
Article 23 – Terms of office
1The judges shall be elected for a period of six years. They may be re-elected. However, the terms of office of one-half of the judges elected at the first election shall expire at the end of three years.
2The judges whose terms of office are to expire at the end of the initial period of three years shall be chosen by lot by the Secretary General of the Council of Europe immediately after their election.
3In order to ensure that, as far as possible, the terms of office of one-half of the judges are renewed every three years, the Parliamentary Assembly may decide, before proceeding to any subsequent election, that the term or terms of office of one or more judges to be elected shall be for a period other than six years but not more than nine and not less than three years.
4In cases where more than one term of office is involved and where the Parliamentary Assembly applies the preceding paragraph, the allocation of the terms of office shall be effected by a drawing of lots by the Secretary General of the Council of Europe immediately after the election.
5A judge elected to replace a judge whose term of office has not expired shall hold office for the remainder of his predecessor’s term.
6The terms of office of judges shall expire when they reach the age of 70.
7The judges shall hold office until replaced. They shall, however, continue to deal with such cases as they already have under consideration.
Article 24 – Dismissal
No judge may be dismissed from his office unless the other judges decide by a majority of two-thirds that he has ceased to fulfil the required conditions.
Article 25 – Registry and legal secretaries
The Court shall have a registry, the functions and organisation of which shall be laid down in the rules of the Court. The Court shall be assisted by legal secretaries.
Article 26 – Plenary Court
The plenary Court shall:
aelect its President and one or two Vice-Presidents for a period of three years; they may be re-elected;
bset up Chambers, constituted for a fixed period of time;
celect the Presidents of the Chambers of the Court; they may be re-elected;
dadopt the rules of the Court; and
eelect the Registrar and one or more Deputy Registrars.
Article 27 – Committees, Chambers and Grand Chamber
1To consider cases brought before it, the Court shall sit in committees of three judges, in Chambers of seven judges and in a Grand Chamber of seventeen judges. The Court’s Chambers shall set up committees for a fixed period of time.
2There shall sit as an ex officio member of the Chamber and the Grand Chamber the judge elected in respect of the State Party concerned or, if there is none or if he is unable to sit, a person of its choice who shall sit in the capacity of judge.
3The Grand Chamber shall also include the President of the Court, the Vice-Presidents, the Presidents of the Chambers and other judges chosen in accordance with the rules of the Court. When a case is referred to the Grand Chamber under Article 43, no judge from the Chamber which rendered the judgment shall sit in the Grand Chamber, with the exception of the President of the Chamber and the judge who sat in respect of the State Party concerned.
Article 28 – Declarations of inadmissibility by committees
A committee may, by a unanimous vote, declare inadmissible or strike out of its list of cases an individual application submitted under Article 34 where such a decision can be taken without further examination. The decision shall be final.
Article 29 – Decisions by Chambers on admissibility and merits
1If no decision is taken under Article 28, a Chamber shall decide on the admissibility and merits of individual applications submitted under Article 34.
2A Chamber shall decide on the admissibility and merits of inter-State applications submitted under Article 33.
3The decision on admissibility shall be taken separately unless the Court, in exceptional cases, decides otherwise.
Article 30 – Relinquishment of jurisdiction to the Grand Chamber
Where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court, the Chamber may, at any time before it has rendered its judgment, relinquish jurisdiction in favour of the Grand Chamber, unless one of the parties to the case objects.
Article 31 – Powers of the Grand Chamber
The Grand Chamber shall:
adetermine applications submitted either under Article 33 or Article 34 when a Chamber has relinquished jurisdiction under Article 30 or when the case has been referred to it under Article 43; and
bconsider requests for advisory opinions submitted under Article 47.
Article 32 – Jurisdiction of the Court
1The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the protocols thereto which are referred to it as provided in Articles 33, 34 and 47.
2In the event of dispute as to whether the Court has jurisdiction, the Court shall decide.
Article 33 – Inter-State cases
Any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the protocols thereto by another High Contracting Party.
Article 34 – Individual applications
The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.
Article 35 – Admissibility criteria
1The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.
2The Court shall not deal with any individual application submitted under Article 34 that:
ais anonymous; or
bis substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information.
3The Court shall declare inadmissible any individual application submitted under Article 34 which it considers incompatible with the provisions of the Convention or the protocols thereto, manifestly ill-founded, or an abuse of the right of application.
4The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.
Article 36 – Third-party intervention
1In all cases before a Chamber or the Grand Chamber, a High Contracting Party one of whose nationals is an applicant shall have the right to submit written comments and to take part in hearings.
2The President of the Court may, in the interest of the proper administration of justice, invite any High Contracting Party which is not a party to the proceedings or any person concerned who is not the applicant to submit written comments or take part in hearings.
Article 37 – Striking out applications
1The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that:
athe applicant does not intend to pursue his application; or
bthe matter has been resolved; or
cfor any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the protocols thereto so requires.
2The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.
Article 38 – Examination of the case and friendly settlement proceedings
1If the Court declares the application admissible, it shall:
apursue the examination of the case, together with the representatives of the parties, and if need be, undertake an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities;
bplace itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention and the protocols thereto.
2Proceedings conducted under paragraph 1.b shall be confidential.
Article 39 – Finding of a friendly settlement
If a friendly settlement is effected, the Court shall strike the case out of its list by means of a decision which shall be confined to a brief statement of the facts and of the solution reached.
Article 40 – Public hearings and access to documents
1Hearings shall be public unless the Court in exceptional circumstances decides otherwise.
2Documents deposited with the Registrar shall be accessible to the public unless the President of the Court decides otherwise.
Article 41 – Just satisfaction
If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.
Article 42 – Judgments of Chambers
Judgments of Chambers shall become final in accordance with the provisions of Article 44, paragraph 2.
Article 43 – Referral to the Grand Chamber
1Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber.
2A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the protocols thereto, or a serious issue of general importance.
3If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgment.
Article 44 – Final judgments
1The judgment of the Grand Chamber shall be final.
2The judgment of a Chamber shall become final:
awhen the parties declare that they will not request that the case be referred to the Grand Chamber; or
bthree months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or
cwhen the panel of the Grand Chamber rejects the request to refer under Article 43.
3The final judgment shall be published.
Article 45 – Reasons for judgments and decisions
1Reasons shall be given for judgments as well as for decisions declaring applications admissible or inadmissible.
2If a judgment does not represent, in whole or in part, the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion.
Article 46 – Binding force and execution of judgments
1The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.
Article 47 – Advisory opinions
1The Court may, at the request of the Committee of Ministers, give advisory opinions on legal questions concerning the interpretation of the Convention and the protocols thereto.
2Such opinions shall not deal with any question relating to the content or scope of the rights or freedoms defined in Section I of the Convention and the protocols thereto, or with any other question which the Court or the Committee of Ministers might have to consider in consequence of any such proceedings as could be instituted in accordance with the Convention.
3Decisions of the Committee of Ministers to request an advisory opinion of the Court shall require a majority vote of the representatives entitled to sit on the Committee.
Article 48 – Advisory jurisdiction of the Court
The Court shall decide whether a request for an advisory opinion submitted by the Committee of Ministers is within its competence as defined in Article 47.
Article 49 – Reasons for advisory opinions
1Reasons shall be given for advisory opinions of the Court.
2If the advisory opinion does not represent, in whole or in part, the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion.
3Advisory opinions of the Court shall be communicated to the Committee of Ministers.
Article 50 – Expenditure on the Court
The expenditure on the Court shall be borne by the Council of Europe.
Article 51 – Privileges and immunities of judges
The judges shall be entitled, during the exercise of their functions, to the privileges and immunities provided for in Article 40 of the Statute of the Council of Europe and in the agreements made thereunder."
1Section V of the Convention shall become Section III of the Convention; Article 57 of the Convention shall become Article 52 of the Convention; Articles 58 and 59 of the Convention shall be deleted, and Articles 60 to 66 of the Convention shall become Articles 53 to 59 of the Convention respectively.
2Section I of the Convention shall be entitled "Rights and freedoms" and new Section III of the Convention shall be entitled "Miscellaneous provisions". Articles 1 to 18 and new Articles 52 to 59 of the Convention shall be provided with headings, as listed in the appendix to this Protocol.
3In new Article 56, in paragraph 1, the words ", subject to paragraph 4 of this Article," shall be inserted after the word "shall"; in paragraph 4, the words "Commission to receive petitions" and "in accordance with Article 25 of the present Convention" shall be replaced by the words "Court to receive applications" and "as provided in Article 34 of the Convention" respectively. In new Article 58, paragraph 4, the words "Article 63" shall be replaced by the words "Article 56".
4The Protocol to the Convention shall be amended as follows:
the Articles shall be provided with the headings listed in the appendix to the present Protocol; and
in Article 4, last sentence, the words "of Article 63" shall be replaced by the words "of Article 56".
5Protocol No. 4 shall be amended as follows:
athe Articles shall be provided with the headings listed in the appendix to the present Protocol;
bin Article 5, paragraph 3, the words "of Article 63" shall be replaced by the words "of Article 56"; a new paragraph 5 shall be added, which shall read:
"Any State which has made a declaration in accordance with paragraph 1 or 2 of this Article may at any time thereafter declare on behalf of one or more of the territories to which the declaration relates that it accepts the competence of the Court to receive applications from individuals, non-governmental organisations or groups of individuals as provided in Article 34 of the Convention in respect of all or any of Articles 1 to 4 of this Protocol."; and
cparagraph 2 of Article 6 shall be deleted.
6Protocol No. 6 shall be amended as follows:
athe Articles shall be provided with the headings listed in the appendix to the present Protocol; and
bin Article 4 the words "under Article 64" shall be replaced by the words "under Article 57".
7Protocol No. 7 shall be amended as follows:
athe Articles shall be provided with the headings listed in the appendix to the present Protocol;
bin Article 6, paragraph 4, the words "of Article 63" shall be replaced by the words "of Article 56"; a new paragraph 6 shall be added, which shall read:
"Any State which has made a declaration in accordance with paragraph 1 or 2 of this Article may at any time thereafter declare on behalf of one or more of the territories to which the declaration relates that it accepts the competence of the Court to receive applications from individuals, non-governmental organisations or groups of individuals as provided in Article 34 of the Convention in respect of Articles 1 to 5 of this Protocol."; and
cparagraph 2 of Article 7 shall be deleted.
8Protocol No. 9 shall be repealed.
1This Protocol shall be open for signature by member States of the Council of Europe signatories to the Convention, which may express their consent to be bound by:
asignature without reservation as to ratification, acceptance or approval; or
bsignature subject to ratification, acceptance or approval, followed by ratification, acceptance or approval.
2The instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.
This Protocol shall enter into force on the first day of the month following the expiration of a period of one year after the date on which all Parties to the Convention have expressed their consent to be bound by the Protocol in accordance with the provisions of Article 3. The election of new judges may take place, and any further necessary steps may be taken to establish the new Court, in accordance with the provisions of this Protocol from the date on which all Parties to the Convention have expressed their consent to be bound by the Protocol.
1Without prejudice to the provisions in paragraphs 3 and 4 below, the terms of office of the judges, members of the Commission, Registrar and Deputy Registrar shall expire at the date of entry into force of this Protocol.
2Applications pending before the Commission which have not been declared admissible at the date of the entry into force of this Protocol shall be examined by the Court in accordance with the provisions of this Protocol.
3Applications which have been declared admissible at the date of entry into force of this Protocol shall continue to be dealt with by members of the Commission within a period of one year thereafter. Any applications the examination of which has not been completed within the aforesaid period shall be transmitted to the Court which shall examine them as admissible cases in accordance with the provisions of this Protocol.
4With respect to applications in which the Commission, after the entry into force of this Protocol, has adopted a report in accordance with former Article 31 of the Convention, the report shall be transmitted to the parties, who shall not be at liberty to publish it. In accordance with the provisions applicable prior to the entry into force of this Protocol, a case may be referred to the Court. The panel of the Grand Chamber shall determine whether one of the Chambers or the Grand Chamber shall decide the case. If the case is decided by a Chamber, the decision of the Chamber shall be final. Cases not referred to the Court shall be dealt with by the Committee of Ministers acting in accordance with the provisions of former Article 32 of the Convention.
5Cases pending before the Court which have not been decided at the date of entry into force of this Protocol shall be transmitted to the Grand Chamber of the Court, which shall examine them in accordance with the provisions of this Protocol.
6Cases pending before the Committee of Ministers which have not been decided under former Article 32 of the Convention at the date of entry into force of this Protocol shall be completed by the Committee of Ministers acting in accordance with that Article.
Where a High Contracting Party had made a declaration recognising the competence of the Commission or the jurisdiction of the Court under former Article 25 or 46 of the Convention with respect to matters arising after or based on facts occurring subsequent to any such declaration, this limitation shall remain valid for the jurisdiction of the Court under this Protocol.
1The Secretary General of the Council of Europe shall notify the member States of the Council of:
bthe deposit of any instrument of ratification, acceptance or approval;
cthe date of entry into force of this Protocol or of any of its provisions in accordance with Article 4; and
dany other act, notification or communication relating to this Protocol.
In witness whereof, the undersigned, being duly authorised thereto, have signed this Protocol.
Done at Strasbourg, this 11th day of May 1994, in English and French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe.