June 24th 2003 ·
Council of Europe
PACE recommends the creation of a public prosecutor at the European Court
of Human Rights
(PACE) June 23, 2003 - In several areas within Council of Europe member states,
the full application of the European Convention on Human Rights (ECHR) is obstructed
as a result of armed conflicts, emergency situations, or even effective loss
of control by a state over a part of its territory.
In order to put an end to the existence of areas where the ECHR cannot be implemented,
as well as to the impunity enjoyed by perpetrators of the most serious crimes,
the Assembly recommends that the Committee of Ministers creates a post of “public
prosecutor , who would have the task of bringing actions concerning violations
of the Convention before the court. It also asks Council of Europe member states
to introduce legislation on universal jurisdiction, which would enable them
to take proceedings against the perpetrators of international crimes.
The following is a provisional edition of Recommendation 1606 adopted by the
Parliamentary Assembly of the Council of Europe on June 23, 2003:
Areas where the European Convention on Human Rights cannot be implemented
Recommendation 1606 (2003) [1]
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1. The Assembly notes that serious violations of human rights are committed
in certain areas on the territory of Council of Europe member states and that
the Council of Europe s potential is insufficiently exploited in ending or
preventing them.
2. From a legal point of view, the High Contracting Parties to the European
Convention on Human Rights (ECHR) secure to everyone within their jurisdiction
the rights and freedoms defined in the Convention.
3. The ECHR is applicable throughout the territory of a member state. It is
also applicable in the event of civil war, and even in the event of derogation
from the ECHR in application of Article 15 (time of emergency) of the Convention.
4. In reality, however, there are areas in which obstacles exist to the application
of the ECHR. These obstacles take various forms. Some are the result of armed
conflict or emergency situations, occupation of part of a state s territory,
or intervention by one state on the territory of another, or even the effective
absence of control by a state over part of its territory.
5. Other obstacles are due to the difficulties – sometimes insurmountable -
to submit individual applications, either through lack of awareness of the ECHR
or for practical reasons.
6. Finally, other obstacles stem from the scale and gravity of violations which
could be regarded as war crimes or crimes against humanity, and to which even
thousands of individual applications would fail to do justice.
7. In such situations, only state applications enable a situation to be addressed
in its entirety. Unfortunately, despite strong recommendations from the Assembly
to this effect as regards massive violations of human rights, the states do
not use this means of obtaining redress.
8. However, it is first and foremost the responsibility of those states on whose
territory violations occur to instigate the necessary investigations and to
bring proceedings against the presumed perpetrators. Should they fail to do
this, third-party states have a responsibility to act. In order to be able to
discharge these
responsibilities, they should have the option of exercising universal jurisdiction
for all international crimes, including terrorist crimes.
9. The Assembly raises particularly its concern about those situations where
member states, as a part of the larger international community, engage in a
process of reconstruction following an armed conflict in European territories
legally not covered by the ECHR. Those territories should be provided with legal
means to ensure that they do not turn into lawless areas in the field of human
rights under member states' control.
10. In order to put an end to the existence of areas where the ECHR cannot be
implemented, as well as to the impunity enjoyed by perpetrators of the most
serious crimes, the Assembly recommends that the Committee of Ministers:
i. take steps to ensure that the ECHR is better known and that training is provided
for all those who could help to prevent human rights abuses - lawyers, judges,
public prosecutors and civil servants - as well as for those whose actions may
give rise to such abuses, particularly members of the armed forces;
ii. envisage an “actio popularis and create the post of Public Prosecutor
at the European Court of Human Rights, who would have the task of bringing actions
concerning violations of human rights before the Court;
iii. entrust this task, if necessary, to the Council of Europe's Commissioner
for Human Rights, assigning him the necessary resources to carry out this new
function;
iv. include in the ECHR an obligation on states to comply with measures imposed
by the Court.
11. The Assembly also recommends that the member states introduce legislation
on universal jurisdiction, which would enable them to take proceedings against
the perpetrators of international crimes.
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[1] Assembly debate on 23 June 2003 (17th Sitting) (see Doc. 9730, report of
the Committee on Legal Affairs and Human Rights, rapporteur: Mr Pourgourides).
Text adopted by the Assembly on 23 June 2003 (17th Sitting)
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