CouncilEurope

Sixth Protocol to the General Agreement on Privileges and Immunities of the Council of Europe

(ETS No. 162)

Franšais


Explanatory Report

Introduction

1. With the adoption by the Committee of Ministers on 20 April 1994, and subsequent signature by all member States of the Council of Europe, of Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to, as "the Convention"), the Committee of Ministers authorised, in January and September 1995, the amendment and subsequently the consolidation into one text of the Fourth and Fifth Protocols to the General Agreement on Privileges and Immunities of the Council of Europe (hereinafter referred to as "Fourth" and "Fifth" Protocols).

2. It was considered more appropriate to prepare a sixth protocol applicable to the new Court as established by Protocol No. 11 to the Convention. The Second, Fourth and Fifth Protocols remain in force with respect to proceedings under the former system.

3. The Sixth Protocol consolidates into one legally-binding document the relevant provisions of the Fourth and Fifth Protocols, supplemented by reference back to the 1949 General Agreement on Privileges and Immunities of the Council of Europe (hereinafter referred to as "the General Agreement").

4. These alterations were necessitated by the fact that Protocol No. 11 to the Convention restructures the Convention's control machinery by replacing the European Commission and Court of Human Rights with a permanent Court in Strasbourg. Hence, this Court functions on a different basis from that of the former system, which was not permanent.

5. This text was prepared between the months of March and September 1995 by the Committee of Experts for the Improvement of Procedures for the Protection of Human Rights (DH-PR), a subordinate body of the Steering Committee for Human Rights (CDDH).

6. The draft text of the present Sixth Protocol to the General Agreement on Privileges and Immunities of the Council of Europe (hereinafter referred to as "Sixth Protocol"), prepared by the DH-PR and subsequently finalised by the CDDH - after due consultation with the Presidents of the European Commission and Court of Human Rights - was submitted to the Committee of Ministers, which adopted the text at the 556th meeting of the Ministers' Deputies on 9 February 1996. It was opened for signature by member States of the Council of Europe on 5 March 1996.

Commentary on the provisions of the Sixth Protocol

Article 1

7. The text of Article 1 is modelled on Article 16 of the General Agreement so as to provide judges, their spouses and minor children the same privileges and immunities as are accorded to the Secretary General and Deputy Secretary General of the Council of Europe, their spouses and minor children.

In addition, by referring to Article 18 of the General Agreement, this provision also accords judges:

- immunity from legal process in respect of words spoken or written and all acts performed by them in their official capacity;

- exemption from taxation on the salaries and emoluments paid to them by the Council of Europe;

- immunity, together with their spouses and relatives dependent on them, from immigration restrictions and aliens' registration;

- the same privileges in respect of exchange facilities as are accorded to officials of comparable rank forming part of diplomatic missions;

- the same repatriation facilities in time of international crisis as diplomatic envoys (together with their spouses and relatives dependent on them); and

- the right to import free of duty their furniture and effects; at the time of first taking up their post and to re-export the same free of duty to their country of domicile.

Exemption from taxation on salaries and emoluments paid to judges includes "allowances", as provided in Article 1 of the Fifth Protocol.

Article 2

8. In Article 2, which is virtually identical to Article 1 of the Fourth Protocol, reference to the former Articles 39 and 43 of the Convention is replaced by reference to Articles 22 and 27, paragraph 2, of the text of the Convention, as amended by Protocol No. 11 to the Convention.

Articles 3 and 4

9. The text of Articles 3 and 4 is virtually identical to those of Articles 5 and 6 of the Fourth Protocol.

Article 5

10. The first three paragraphs of Article 5 are modelled on the text of Article 7 of the Fourth Protocol. As the Convention, as amended by Protocol No. 11, specifies that the plenary Court elects "one or more Deputy Registrars" (Article 26.e), the pertinent sections of the text have been amended accordingly.

11. Paragraph 1 ensures that the Registrar or a person acting as Registrar enjoys the same privileges and immunities as provided to judges in Articles 1, 3 and 4 (see paragraph 1 of Article 7 of the Fourth Protocol). In order to avoid legal uncertainty, the designation of a Deputy Registrar as Acting Registrar requires formal notification to all the States Parties to the Convention. Similarly, immunity from legal process, as provided to judges in Article 3, is extended, by paragraph 2, to a Deputy Registrar, in addition to privileges and immunities accorded in Article 18 of the General Agreement.

12. Paragraph 4 is new. Modelled on the former Court's Rule 13 (Rules of Court "A" and "B"), waiver, by the Secretary General of the Council of Europe, of immunity of the Court's registry officials (other than the Registrar and a Deputy Registrar) is only possible with the agreement of the Court's President. The waiver of immunity of these staff members has to be in accordance with the provisions of Article 19 of the General Agreement and with due regard to considerations set out in paragraph 3, in particular the fact that immunity should only be waived where that can be done without prejudicing the purpose for which it was accorded.

Article 6

13. The text of Article 6 is virtually identical to that of Article 4 of the Fourth Protocol.

Articles 7 to 10: Final clauses

14. The text of Article 7 is virtually identical to Article 2 of the Fifth Protocol.

15. Article 8 is modelled on Article 3 of the Fifth Protocol, except that entry into force is to take place one month after three Parties to the General Agreement have expressed their consent to be bound by the present Protocol or on the date of entry into force of Protocol No. 11 of the Convention, whichever is the later.

As regards paragraph 2 of Article 8, entry into force occurs within one month (see Article 3, paragraph 2, of the Fifth Protocol).

16. Article 9 enables States to extend the Convention (and where relevant its protocols) to territories for whose international relations they are responsible. Paragraphs 1 and 2 are modelled on the text of Article 8 of the Fourth Protocol and paragraph 3 on Article 6, paragraph 3, of Protocol No. 7 to the Convention.

17. The text of Article 10 is virtually identical to that of Article 5 of the Fifth Protocol.