III. The Committee of Ministers of the Council of Europe
The Committee of Ministers, the intergovernmental organ of the Council of Europe, takes part in the operation of the Convention if a case investigated by the Commission is not referred to the Court. But since the compulsory juris- diction of the Court has not yet been accepted by all States, and since those States which have accepted it do not necessarily refer a case to the Court, and the Commission equally is not bound to refer a case to the Court even when it is possible to do so, the Committee of Ministers has in fact had occasion to take decisions on the merits more often than the Court.
When exercising its powers under the Convention, the Committee of Ministers has the same membership as at other times, but takes decisions by a two-thirds majority, whereas, under the Statute of the Council of Europe, the more important decisions of the Committee of Ministers in other matters require unanimity.
If the Committee decides that there has been a violation, it prescribes a period during which the State concerned must take remedial measures. If the latter does not do so, the Committee must then decide "what effect shall be given to its original decision" ; Article 32 of the Convention does not specify the nature of this "effect". The Convention specifies only one form of sanction: the publication of the Commis- sion's report. A State may ordinarily be expected, however, to make a point of conforming to a decision of the Committee of Ministers, and indeed the Contracting Parties undertake in the Convention to do so.
Two examples may be given of the role of the Committee of Ministers under the Convention. The first relates to an inter-state case brought by Austria against Italy which concerned the trial of six young men for the murder of an Italian customs official in the German-speaking region of
26
the Upper Adige. Various allegations were made that their trial had not come up to the standards of justice prescribed in the Convention; but the Commission and the Committee of Ministers concluded in 1963 that there had been no violation. At the same time, the Committee of Ministers transmitted to the Governments concerned the wish expressed by the Commission that clemency should be shown to the prisoners.
The second example is furnished by a group of cases relating to the Austrian Code of Criminal Procedure, which provided, until 1962, that in certain circumstances judgment on criminal appeals should be given by the court of second instance sitting in camera (i.e. without the presence of the appellant or his counsel) and after hearing the Public Prose- cutor. A number of applicants, whose appeals had been heard in this way, complained that this violated Article 6 of the Convention, guaranteeing the right to fair trial. While the cases were being considered by the Commission, the Austrian Government introduced a bill before the Parliament amending the law so as to bring it into conformity with the Convention. This became law on 18th July 1962. A further Act of 26th March 1963 granted a new hearing to all applicants whose appeals had been heard under the old procedure and whose applicants had been declared admiss- ible by the European Commission of Human Rights. In these circumstances, the Commission expressed the view that there had initially been a violation of the Convention but that this had now been remedied; the Committee of Ministers agreed with the reasoning of the Commission, expressed its satis- faction that the Austrian Government had introduced new legislative measures to ensure the full application of the Convention and decided that no further action was required.
22
27
No comments yet.
Private notes are available after approval.