Protocol No. 7 to
the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS no. 117)

 

Explanatory Report

 

l.
Protocol No. 7 to the Convention for the Protection of Human Rights and
Fundamental Freedoms, drawn up within the Council of Europe by the Steering
Committee for Human Rights and adopted by the Committee of Ministers, was
opened for signature by the member states of the Council of Europe on 22
November 1984.

 

II. The
text of the explanatory report prepared by the Steering Committee for Human
Rights and submitted to the Committee of Ministers of the Council of Europe
does not constitute an instrument providing an authoritative interpretation of
the text of the Protocol, although it might be of such a nature as to
facilitate the understanding of the provisions contained therein.

 

Introduction

 

1. On 16
December 1966, the General Assembly of the United Nations adopted the
International Covenants on Human Rights. In October 1967, the Committee of
Ministers of the Council of Europe, aware that problems might arise from the
coexistence of the European Convention on Human Rights and the United Nations
Covenants, instructed the Committee of Experts on Human Rights to investigate
these problems. In 1969 the committee of experts submitted a report to the
Committee of Ministers concerning the differences between the rights guaranteed
by the European Convention and those covered by the International Covenant on
Civil and Political Rights (Doc. H (70) 7).

 

2. On 23
October 1972, the Parliamentary Assembly of the Council of Europe adopted
Recommendation 683 (1972) on action to be taken on the conclusions of the
Parliamentary Conference on Human Rights held in Vienna from 18 to 20 October
1971. In this recommendation the Assembly recalled that the objectives of the
Council of Europe entailed "not only the maintenance but also the further
realisation of human rights and fundamental freedoms". After noting
"the work already done for the maintenance of human rights, thanks to the
establishment and day-to-day functioning of the European Convention on Human
Rights and its Protocols", and emphasising that "the growth of Europe
can be soundly based only if it is founded on respect for the human being and
if it endeavours to provide an increasingly wide guarantee of his fundamental
rights", the Assembly made proposals for a short- and medium-term
programme for the Council of Europe in the field of human rights. It
recommended, in particular, the study of the question of extending the rights
guaranteed by the European Convention on Human Rights. Finally, in its
Recommendation 791 (1976) on the protection of human rights in Europe, the
Assembly recommended that the Committee of Ministers endeavour to insert as
many as possible of the substantive provisions of the Covenant on Civil and
Political Rights in the Convention.

 

3. The
aforementioned report of the Committee of Experts on Human Rights (see above,
paragraph 1) served as a basis for work undertaken in 1976 by a sub-committee
of that body, and later by the Committee of experts for the extension of rights
embodied in the European Convention on Human Rights, in the framework of the
objectives of the medium-term plans 1976-1980 and 1981-1986 of the Council of
Europe, entitled respectively: "Extension of human rights-Extending the
human rights set forth in the European Convention on Human Rights and its
Protocols (United Nations Covenant on Civil and Political Rights)" and "Extension
of the list of civil and political rights and freedoms set forth in the
European Convention on Human Rights".

 

In
preparing the new draft protocol to the European Convention on Human Rights,
the committee of experts kept in mind in particular the need to include in the
Convention only such rights as could be stated in sufficiently specific terms
to be guaranteed within the framework of the system of control instituted by
the Convention.

 

4. It was
understood that participation of member states in this Protocol would in no way
affect the interpretation or application of provisions containing obligations,
among themselves, or between them and other States, under any other
international instrument.

 

5. Once
the draft protocol was finalised by the Steering Committee for Human Rights, it
was transmitted to the Committee of Ministers of the Council of Europe which
finally adopted the text at the 374th meeting of the Ministers' Deputies and
opened it for signature by member states of the Council of Europe, on 22
November 1984.

 

Commentary on the provisions of
the Protocol

 

Article 1

 

6. In
line with the general remark made in the introduction (see above, paragraph 4),
it is stressed that an alien lawfully in the territory of a member state of the
Council of Europe already benefits from certain guarantees when a measure of
expulsion is taken against him, notably those which are afforded by Articles 3
(prohibition of inhuman or degrading treatment) and 8 (right to respect for
private and family life), in connection with Article 13 (right to an effective
remedy before a national authority) (1) of the European
Convention on Human Rights, as interpreted by the European Commission and Court
of Human Rights and - in those states which are parties -by the European
Convention on Establishment of 1955 (Article 3), the European Social Charter of
1961 (Article 19, paragraph 8), the Treaty establishing the European Economic
Community of 1957 (Article 48), the Geneva Convention relating to the status of
refugees of 1951 (Articles 32 and 33) and the United Nations Covenant on Civil
and Political Rights of 1966 (Article 13).

_____

(1) In its judgment of 6 September 1978
in the case of Klass and others, the Court stated that this article should be
interpreted "as guaranteeing an 'effective remedy before a national
authority' to everyone who claims that his rights and freedoms under the
Convention have been violated" (Case of Klass and others, Series A, Vol.
28, paragraph 64).

 

7.
Account being taken of the rights which are thus recognised in favour of
aliens, the present article has been added to the European Convention on Human
Rights in order to afford minimum guarantees to such persons in the event of
expulsion from the territory of a Contracting Party. The addition of this
article enables protection to be granted in those cases which are not covered
by other international instruments and allows such protection to be brought
within the purview of the system of control provided for in the European
Convention on Human Rights.

 

8. Whilst
affording "minimum" guarantees, this article contains some important
specifications as compared with the United Nations Covenant. In particular,
unlike Article 13 of the Covenant, paragraph 2 of Article 1 determines the
circumstances in which an alien may be expelled before exercising the rights
laid down in paragraph 1.

 

9. As to
its field of application, this article only concerns an alien lawfully resident
in the territory of the state in question.

 

The word
resident is intended to exclude from the application of the article any alien
who has arrived at a port or other point of entry but has not yet passed
through the immigration control or who has been admitted to the territory for
the purpose only of transit or for a limited period for a non-residential
purpose. This period also covers the period pending a decision on a request for
a residence permit.

 

The word
lawfully refers to the domestic law of the state concerned. It is therefore for
domestic law to determine the conditions which must be fulfilled for a person's
presence in the territory to be considered "lawful" (2).

_____

(2). On this notion of lawful residence", see for example the following
provisions:

 

Article
11 of the European Convention on Social and Medical Assistance (1953):

a. Residence by an alien in the
territory of any of the Contracting Parties shall be considered lawful within
the meaning of this Convention so long as there is in force in his case a
permit or such other permission as is required by the laws and regulations of
the country concerned to reside therein. Failure to renew any such permit, if
due solely to the inadvertence of the person concerned, shall not cause him to
cease to be entitled to assistance;

b. Lawful residence shall become unlawful from the date of any deportation order
made out against the person concerned, unless a stay of execution is
granted."

Section II of the Protocol to the European Convention on Establishment
(1955):

-a. Regulations governing the admission, residence and movement of aliens
and also their right to engage in gainful occupations shall be unaffected by
this Convention insofar as they are not inconsistent with it;

b. Nationals of a Contracting Party shall be considered as lawfully residing in
the territory of another Party if they have conformed to the said
regulations."

 

The
provision applies not only to aliens who have entered lawfully but also to
aliens who have entered unlawfully and whose position has been subsequently
regularised. However, an alien whose admission and stay were subject to certain
conditions, for example a fixed period, and who no longer complies with these
conditions cannot be regarded as being still "lawfully" present.

 

10. The
concept of expulsion is used in a generic sense as meaning any measure
compelling the departure of an alien from the territory but does not include
extradition. Expulsion in this sense is an autonomous concept which is
independent of any definition contained in domestic legislation. Nevertheless,
for the reasons explained in paragraph 9 above, it does not apply to the
refoulement of aliens who have entered the territory unlawfully, unless their
position has been subsequently regularised.

 

11 .
Paragraph 1 of this article provides first that the person concerned may be
expelled only "in pursuance of a decision reached in accordance with
law". No exceptions may be made to this rule. However, again,
"law" refers to the domestic law of the state concerned. The decision
must therefore be taken by the competent authority in accordance with the provisions
of substantive law and with the relevant procedural rules.

 

12.
Sub-paragraphs a, b and c of this same paragraph go on to set out three
guarantees. Unlike the wording of Article 13 of the United Nations Covenant,
the three guarantees have been clearly distinguished in three separate
sub-paragraphs.

 

13.1. The
first guarantee is the right of the person concerned to submit reasons against
his expulsion. The conditions governing the exercise of this right are a matter
for domestic legislation. By including this guarantee in a separate
sub-paragraph, the intention is to indicate clearly that an alien can exercise
it even before being able to have his case reviewed.

 

13.2. The
second guarantee is the right of the person concerned to have his case
reviewed. This does not necessarily require a two-stage procedure before
different authorities, but only that the competent authority should review the
case in the light of the reasons against expulsion submitted by the person
concerned. Subject to this and to sub-paragraph c, the form which the
review should take is left to domestic law. In some states, an alien has the
possibility of introducing an appeal against the decision taken following the
review of his case. The present article does not relate to that stage of
proceedings and does not therefore require that the person concerned should be
permitted to remain in the territory of the state pending the outcome of the
appeal introduced against the decision taken following the review of his case.

 

13.3.
Sub-paragraph c requires that the person concerned shall have the right to have
his case presented on his behalf to the competent authority or a person or
persons designated by that authority. The "competent authority" may
be administrative or judicial. Moreover, the "competent authority"
for the purpose of reviewing the case need not be the authority with whom the
final decision on the question of expulsion rests. Thus, a procedure under
which a court, which had reviewed the case in accordance with sub-paragraph b,
made a recommendation of expulsion to an administrative authority with whom the
final decision lay would satisfy the article. Nor would it be inconsistent with
the requirements of this article or of Article 14 of the Convention for the
domestic law to establish different procedures and designate different
authorities for certain categories of cases, provided that the guarantees
contained in the article are otherwise respected.

 

14. The
article does not imply a right for the person concerned or his representative
to be physically present when his case is considered. The whole procedure may
be a written procedure. There need not be an oral hearing.

 

15. As a
rule, an alien should be entitled to exercise his rights under sub-paragraphs
a, b and c of paragraph 1 before he is expelled. However, paragraph 2 permits
exceptions to be made by providing for cases where the expulsion before the
exercise of these rights is considered necessary in the interest of public
order or when reasons of national security are invoked. These exceptions are to
be applied taking into account the principle of proportionality as defined in
the case-law of the European Court of Human Rights.

 

The state
relying on public order to expel an alien before the exercise of the
aforementioned rights must be able to show that this exceptional measure was
necessary in the particular case or category of cases. On the other hand, if
expulsion is for reasons of national security, this in itself should be
accepted as sufficient justification. In both cases, however, the person
concerned should be entitled to exercise the rights specified in paragraph 1
after his expulsion.

 

16. The
European Commission of Human Rights has held in the case of Application No.
7729/76 that a decision to deport a person does "not involve a determination
of his civil rights and obligations or of any criminal charge against him"(3) within the meaning of Article 6 of the Convention. The present article
does not affect this interpretation of Article 6.

_____

(3) Decision of 17 December 1976, Decisions and Reports (DR), Vol. 7, p. 176. See
also: Application No. 7902/77, decision of 18 May 1977, DR, Vol. 9, p. 225;
Application No. 8244/78, decision of 2 May 1979, DR, Vol. 17, p. 157;
Application No. 9285/81, decision of 6 July 1982, paragraph 4, DR, Vol. 29, p.
211.

 

Article 2

 

17. This
article recognises the right of everyone convicted of a criminal offence by a
tribunal to have his conviction or sentence reviewed by a higher tribunal. It
does not require that in every case he should be entitled to have both his
conviction and sentence so reviewed. Thus, for example, if the person convicted
has pleaded guilty to the offence charged, the right may be restricted to a
review of his sentence. As compared with the wording of the corresponding
provisions of the United Nations Covenant (Article 14, paragraph 5), the word
"tribunal" has been added to show clearly that this provision does
not concern offences which have been tried by bodies which are not tribunals
within the meaning of Article 6 of the Convention.

 

18.
Different rules govern review by a higher tribunal in the various member states
of the Council of Europe. In some countries, such review is in certain cases
limited to questions of law, such as the recours en cassation. In
others, there is a right to appeal against findings of facts as well as on the
questions of law. The article leaves the modalities for the exercise of the
right and the grounds on which it may be exercised to be determined by domestic
law.

 

19. In
some states, a person wishing to appeal to a higher tribunal must in certain
cases apply for leave to appeal. The right to apply to a tribunal or an
administrative authority for leave to appeal is itself to be regarded as a form
of review within the meaning of this article.

 

20.
Paragraph 2 of the article permits exceptions to this right of review by a
higher tribunal:

 

- for offences of a minor
character, as prescribed by law;

 

- in cases in which the
person concerned has been tried in the first instance by the highest tribunal,
for example by virtue of his status as a minister, judge or other holder of
high office, or because of the nature of the offence;

 

- where the person concerned
was convicted following an appeal against acquittal.

 

21. When
deciding whether an offence is of a minor character, an important criterion is
the question of whether the offence is punishable by imprisonment or not (4).

_____

(4)The Committee of Ministers, at the 375th meeting of the Deputies (September
1984), decided to add this paragraph "having regard to the importance of
the explanatory report for the purpose of interpreting the Protocol".

 

Article 3

 

22. This
article provides that compensation shall be paid to a victim of a miscarriage
of justice, on certain conditions.

 

First,
the person concerned has to have been convicted of a criminal offence by a
final decision and to have suffered punishment as a result of such conviction. According
to the definition contained in the explanatory report of the European
Convention on the International Validity of Criminal Judgments, a decision is
final "if, according to the traditional expression, it has acquired the
force of res judicata. This is the case when it is irrevocable, that is
to say when no further ordinary remedies are available or when the parties have
exhausted such remedies or have permitted the time-limit to expire without
availing themselves of them"(5). It follows
therefore that a judgment by default is not considered as final as long as the
domestic law allows the proceedings to be taken up again. Likewise, this
article does not apply in cases where the charge is dismissed or the accused
person is acquitted either by the court of first instance or, on appeal, by a
higher tribunal. If, however, in one of the states in which such a possibility
is provided for (6), the person has been granted
leave to appeal after the normal time of appealing has expired, and his
conviction is then reversed on appeal, then subject to the other conditions of
the article, in particular the conditions described in paragraph 24 below, the
article may apply.

_____

(5) Commentary on Article 1. a: Explanatory report of the European Convention
on the international Validity of Criminal Judgments, publication of the Council
of Europe, 1970, p. 22.

(6) See above, paragraph 19.

 

23. Secondly,
the article applies only where the person's conviction has been reversed or he
has been pardoned, in either case on the ground that a new or newly discovered
fact shows conclusively that there has been a miscarriage of justice - that is,
some serious failure in the judicial process involving grave prejudice to the
convicted person. Therefore, there is no requirement under the article to pay
compensation if the conviction has been reversed or a pardon has been granted
on some other ground. Nor does the article seek to lay down any rules as to the
nature of the procedure to be applied to establish a miscarriage of justice. This
is a matter for the domestic law or practice of the state concerned. The words
or he has been pardoned" have been included because under some systems of
law pardon, rather than legal proceedings leading to the reversal of a
conviction, may in certain cases be the appropriate remedy after there has been
a final decision.

 

24.
Finally, there is no right to compensation under this provision if it can be
shown that the non-disclosure of the unknown fact in time was wholly or partly
attributable to the person convicted.

 

25. In
ail cases in which these preconditions are satisfied, compensation is payable
"according to the law or the practice of the state concerned". This
does not mean that no compensation is payable if the law or practice makes no
provision for such compensation. It means that the law or practice of the state
should provide for the payment of compensation in ail cases to which the
article applies. The intention is that states would be obliged to compensate
persons only in clear cases of miscarriage of justice, in the sense that there
would be acknowledgement that the person concerned was clearly innocent. The
article is not intended to give a right of compensation where ail the
preconditions are not satisfied, for example, where an appellate, court had
quashed a conviction because it had discovered some fact which introduced a
reasonable doubt as to the guilt of the accused and which had been overlooked
by the trial judge.

 

Article 4

 

26. This
article embodies the principle that a person may not be tried or punished again
in criminal proceedings under the jurisdiction of the same state for an offence
for which he has already been finally acquitted or convicted (non bis in
idem).

 

27. The
words "under the jurisdiction of the same state" limit the
application of the article to the national level. Several other Council of
Europe conventions, including the European Convention on Extradition (1957),
the European Convention on the International Validity of Criminal Judgments
(1970) and the European Convention on the Transfer of Proceedings in Criminal
Matters (1972), govern the application of the principle at international level.
 

 

28. It
has not seemed necessary, as in Articles 2 and 3, to qualify the offence as
"criminal". Indeed, Article 4 already contains the terms "in
criminal proceedings" and "penal procedure", which render
unnecessary any further specification in the text of the article itself.

 

29. The
principle established in this provision applies only after the person has been
finally acquitted or convicted in accordance with the law and penal procedure
of the state concerned. This means that there must have been a final decision
as defined above, in paragraph 22.

 

30. A
case may, however, be reopened in accordance with the law of the state
concerned if there is evidence of new or newly discovered facts, or if it
appears that there has been a fundamental defect in the proceedings, which
could affect the outcome of the case either in favour of the person or to his
detriment.

 

31. The
term "new or newly discovered facts" includes new means of proof
relating to previously existing facts. Furthermore, this article does not
prevent a reopening of the proceedings in favour of the convicted person and
any other changing of the judgment to the benefit of the convicted person.

 

32.
Article 4, since it only applies to trial and conviction of a person in
criminal proceedings, does not prevent him from being made subject, for the
same act, to action of a different character (for example, disciplinary action
in the case of an official) as well as to criminal proceedings.

 

33. Under
the terms of paragraph 3, this article may not be subject to derogation under
Article 15 of the Convention in time of war or other public emergency
threatening the life of the nation.

 

Article 5

 

34. Under
this article, spouses shall enjoy equality of rights and responsibilities as to
marriage, during marriage and in the event of its dissolution.

 

35. Under
the terms of this article, equality must be ensured solely in the relations
between the spouses themselves, in regard to their person or their property and
in their relations with their children. The rights and responsibilities are
thus of a private law character; the article does not apply to other fields of
law, such as administrative, fiscal, criminal, social, ecclesiastical or labour
laws.

 

36. The
fact that spouses shall enjoy equality of rights and responsibilities in their
relations with their children shall not prevent states from taking such
measures as are necessary in the interests of the children. In this connection,
the case-law of the organs of control instituted by the Convention should be
noted, relating, in particular, to Articles 8 and 14 of the Convention. As
regards Article 8 (right to respect of family life), the European Commission
and Court of Human Rights have stressed the need to take account of the
interests of the child. As for Article 14 (principle of non-discrimination),
the Court has stated that it is violated "if the distinction has no
objective and reasonable justification" (Case relating to certain aspects
of the laws on the use of languages in Belgium, judgment of 23 July 1968, Series
A, Vol. 6, p. 34, paragraph 10).

 

37. This
article, which is concerned with the case of "spouses", excludes the
period preceding marriage and does not apply to conditions of capacity to enter
into marriage provided by national law (see Article 12 of the Convention). The
words "as to marriage" relate to the legal effects connected with the
conclusion of marriage.

 

38.
Finally, this article should not be understood as preventing the national
authorities from taking due account of all relevant factors when reaching
decisions with regard to the division of property in the event of dissolution
of marriage.

 

39. The
words "in the event of its dissolution" do not imply any obligation
on a state to provide for dissolution of marriage or to provide any special
forms of dissolution.

 

Article 6

 

40. This
article deals with the territorial application of the Protocol and corresponds,
as to the principle it embodies, to Article 63 of the Convention, Article 4 of
Protocol No. 1 and Article 5 of Protocol No. 4, but is formulated in terms
which take account of the relevant provisions in the model final clauses
adopted by the Committee of Ministers in February 1980.

 

41.
Paragraph 5 specifies that a state which has extended the Protocol to certain
territories may treat each of them and the territory to which the Protocol
applies by virtue of its ratification, acceptance or approval by that state as
separate territories for the purpose of Article 1.

 

42. It is
to be noted that this article is not intended to allow a federal State to
exclude acceptance of the Protocol in respect of part of its territory.

 

Article
7

 

43. The
first purpose of this article is to clarify the relationship of this Protocol
to the Convention by indicating that all the provisions of the latter shall
apply in respect of Articles 1 to 6 of the Protocol. Among those provisions,
attention is drawn in particular to Article 60, under the terms of which
"Nothing in this Convention shall be construed as limiting or derogating
from any of the human rights and fundamental freedoms which may be ensured
under the laws of any High Contracting Party or under any other agreement to
which it is a Party". It is clear that this article will apply in the
relations between the present Protocol and the Convention itself. Indeed, as
has already been mentioned above (see paragraphs 4 and 6), the Protocol cannot
be interpreted as prejudicing the rights guaranteed in the Convention and in
Protocols Nos. 1 and 4.

 

44. The
second objective of the article is to stipulate that the recognition of the
right of individual petition (Article 25 of the Convention) or the acceptance
of the compulsory jurisdiction of the Court (Article 46 of the Convention)
shall not be effective in relation to the Protocol unless the state concerned
makes a statement to that effect. This article thus corresponds to Article 6 of
Protocol No. 4, with the difference that states may not choose the rights to
which their acceptance of the competence of the Commission and the jurisdiction
of the Court extends.

 

Articles 8 and 9

 

45. These
articles contain the provisions under which a member state of the Council of
Europe may become bound by the Protocol. They are formulated in terms which
take account of the new model final clauses adopted by the Committee of
Ministers.

 

Article 10

 

46. This
article contains provisions which are now usual regarding the functions of the
Secretary General of the Council of Europe as the depository of the Protocol.