Council of Europe Treaty Series - Explanatory Reports

I. Protocol No. 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms was prepared within the framework of the Council of Europe by the Committee of Experts on Human Rights. It was opened for signature on 16 September 1963.

II. This document contains the text of the explanatory report and of the commentary of the Committee of Experts on Human Rights, which publication was authorised by the Committee of Ministers at the 139th Meeting of the Ministers' Deputies in March, 1965.

1. In its Recommendation 234 (1960) adopted on 22nd January, 1960, the Consultative Assembly recommended to the Committee of Ministers:

2. Acting upon this Recommendation, the Committee of Ministers, by Resolution (60) 6 of 22nd March, 1960, decided to set up a "Committee of Governmental Experts with instructions to study problems relating to the European Convention on Human Rights".

3. The Committee of Experts set up under this Resolution discussed the draft Second Protocol to the Convention at meetings held in Strasbourg:

The Chairmanship of the Committee was taken by Mr. Ugo Caldarera, Italian Governmental Expert. Secretarial services were provided by the Human Rights Directorate.

4. On 5th March, 1962, a Joint Meeting was held at Strasbourg between members of the Committee of Experts and of the Legal Committee of the Assembly, when the question of the Second Protocol was the subject of a lengthy discussion.

5. At its meeting in February, 1963, the Committee of Experts drafted the present report.

The words underlined in the draft text prepared by the Committee of Experts indicate the changes made to the Assembly's draft text.

1. The text of the Committee is more concise than the one of the Assembly. It is based on the wording of the Preamble in the First Protocol.

The Committee agreed that if the second preamble were to differ widely and for no good reason from the first, difficulties might arise in the interpretation of the two Protocols. Doubts were expressed as to the advisability of making any reference in the preamble to the Covenant on Civil and Political Rights which is being prepared by the United Nations when there was no such reference in the Preambles to the Convention and to the First Protocol.

2. The Committee decided to adopt the text of Article 1 of the Assembly's draft with one amendment: the substitution of the expression "deprived of his liberty" for "imprisoned".

The wording "deprived of his liberty" is designed to cover loss of liberty for any length of time, whether by detention or by arrest.

The arguments which led to the adoption of this proposal were as follows:

3. Like the corresponding Articles of the Assembly and United Nations drafts, this article relates to failure to fulfil contractural obligations of any kind and not only money debts. It may refer, accordingly, to nondelivery, non-performance or non-forbearance.

4. Such obligations must, however, arise out of contract. The Article does not apply to obligations arising from legislation in public or private law.

5. The Committee stressed the importance of the words "merely on the ground of inability"

In the experts' view, the Article aimed at prohibiting, as contrary to the concept of human liberty and dignity, any deprivation of liberty for the sole reason that the individual had not the material means to fulfil his contractual obligations.

Deprivation of liberty is not forbidden if any other factor is present in addition to the inability to fulfil a contractual obligation, for example:

6. The Committee thought that the Article could not therefore be construed as prohibiting deprivation of liberty as a penalty for a proved criminal offence or as a necessary preventive measure before trial for such an offence, even if criminal law recognised as an offence an act or omission which was at the same time a failure to fulfil a contractual obligation.

For a law which makes a breach of contract into a criminal offence punishable by imprisonment always provides for one or more elements of criminality other than a simple inability to perform the contractual obligation.

For example, the law of a Contracting Party would thus not be in conflict with this article if it permitted the deprivation of liberty of an individual who:

Paragraph 1 of the Committee's draft

7. There is only one difference between the text of the Committee and that of the Assembly. The word "légalement" was replaced in the French text by "régulièrement", since, in most States, the administrative authorities enjoy considerable discretionary powers enabling them to admit or refuse entry to foreigners and to control their stay. (cf. Article 3, paragraphs 1, 2 and 3 of the Convention on Establishment).

In the English text, "legally" was changed to "lawfully" (cf. Article 12.of the draft Convenant on Civil and Political Rights adopted by the Third Committee of the United Nations General Assembly).

8. The Committee did not accept a proposal to substitute the word "réside" for "se trouve" in the French text, and to insert the term "residing" between the words "lawfully" and "within" in the English text. The purpose of this amendment was to prevent an alien lawfully within the territory of a State from invoking Article 2, paragraph 1, of the draft as a provision conferring on him the right to remain permanently within the territory of that State.

The Committee did not think that Article 2, paragraph 1, was open to such interpretation; an alien passing through the territory of a State, or being there lawfully but for a limited time, would not be entitled, by virtue of this provision, to secure permanent admission to the territory of that State.

The Committee agreed that an alien admitted under certain conditions of entry (not necessarily conditions about residence or movement) which he transgresses or fails to comply with, can no longer be regarded as being "lawfully" in the country.

9. The Committee examined another proposal, to add the words "of a Contracting party" after "territory of a State", since States which are not Contracting Parties are under no such obligation.

This proposal was rejected on the ground that in a Human Rights Convention it was preferable from a psychological point of view to use words in their widest possible sense when laying down regulations equivalent to broad general principles of law.

By virtue of Article 6 of the draft, Article 1 of the Convention is applicable in this matter; thus, there can be no doubt that Contracting Parties alone are bound by the present Article.

Paragraph 2 of the Committee's draft

10. It was agreed to replace "state" in the Assembly draft by "country" which is found in Article 13, paragraph (2), of the Universal Declaration of Human Rights and in Article 12, paragraph (2), of the draft United Nations Covenant.

The Committee meant to give the greatest possible scope to the freedom to leave a region, whether or not it is a State; the Committee considered further that, from a psychological point of view, the notion of "country" was preferable to that of "State", as having deeper emotional implications.

11. The question arose whether the expression "any country" was adequate since the Protocol can create no obligations for countries which are not Parties to it. The provision which secures for persons within the jurisdiction of the Contracting Parties the freedom to leave a country could not produce a legal effect of a binding nature in respect of every State, but only in respect of States Parties to the Protocol.

Believing that a very general principle ought to be stated, the Committee was in favour of keeping this expression. Furthermore, it was not impossible that a court in a Contracting State might have to render a decision, in a case brought before it, regarding the legality of the emigration of a person who had left the territory of a State which was not a Party to this Protocol. In such a case, it might be asked whether the court should not decide that reference to the law of the other State was authorised only insofar as that law did not prejudice the principle of freedom to leave a country.

Paragraph 3 of the Committee's draft

12. The Committee made five changes in the text proposed by the Assembly.

13. In the English version, the first change concerns the expression "in accordance with law" (which corresponded fairly closely to the words "in accordance with the law" in Article 8, paragraph (2) of the Convention) which was considered to be better than the expression "prescribed by law" (used in Article 2 (3) of the Assembly's draft and Articles 3 (2) , 10 (2) and 11 (2) of the Convention) or "provided by the law" (to be found in Article 12 (3) of the United Nations draft Covenant and Article 1 of the First Protocol to the Convention).

It was understood that the expression "in accordance with law" allowed for administrative action, provided it were taken in accordance with internal legislation.

However, the Committee did not accept a proposal to substitute in the French text the expression "conformes à la loi" for "prévues par la loi".

As the words "prévues par la loi" were to be found in various restrictive clauses of the Convention, the Committee thought that to adopt a different wording might create difficulties of interpretation.

14. The Committee made a second amendment to the Assembly text, namely:

15. The third amendment consists in the fact that the Committee's text makes no express provision for restrictions founded on what is necessary for the economic welfare of the country.

At the outset, two different positions were taken in the Committee.

Some experts thought that considerations of economic welfare should not justify any restrictions, even if these were confined to the rights referred to in paragraph 1, except insofar as they arose from the need to safeguard ordre public.

Others considered that the rights defined in paragraph 1 of Article 2 could be subject to restrictions which, when provided for by law, constitute measures necessary in a democratic society for the economic welfare of the country. They agreed, however, that the right to leave a country, provided under paragraph 2, could not be subject to restrictions of this nature.

The following arguments were advanced in support of the first view:

Supporters of the other view argued as follows:

The Committee finally decided to delete all reference in paragraph 3 to considerations of economic welfare and to add a new paragraph relating to this question (see below paragraph 18).

The fourth amendment concerns the English translation of the expression "ordre public".

The Committee decided to replace "law and order" by the French words "ordre public" written within inverted comas (cf. Article 2, paragraph 3 of the draft United Nations Covenant).

Furthermore, the Committee intended, for the purposes of this article, that the notion of "ordre public" should be understood in the broad sense in general use in continental countries.

17. The fifth amendment concerns the French version in which the expression "prévention des infractions pénales" was found preferable to "prévention du crime" (cf. Article 5, paragraph 1(c), Article 6, paragraphs (2), (7) and (8) of the Convention; contra Articles 10 and 11 of the Convention).

In this connection, one expert asked whether provision should not be made for a restriction for the purposes of the punishment of crime (and not merely for its prevention).

The Committee thought that the need to punish crime was covered by the notion of the maintenance of "ordre public".

Paragraph 4 of the Committee's draft

18. The majority of the Committee was against the inclusion of a provision permitting restrictions on the ground of economic welfare. In view, however, of the possibility that in particular areas it might be necessary, for legitimate reasons, and solely in the public interest in a democratic society, to impose restrictions which it might not always be possible to bring within the concept of "ordre public", the Committee decided to insert an additional paragraph providing that the rights set forth in paragraph 1 might also be subject in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.

The term "area", as used in this article, does not refer to any definite geographical or administrative unit. The meaning of this provision is that the restrictions in question must be localised within a well-defined area.

Paragraph 1 of the Committee's draft

19. The Committee made three changes to the text proposed by the Assembly.

20. The first change concerns the addition of the words "by means of either an individual or a collective measure".

The Committee's intention was to specify by this addition that the collective expulsion of nationals was prohibited in the same way as the collective expulsion of aliens referred to in Article 4 of the draft. (So far as measures of collective expulsion taken in the past are concerned, see below at paragraph 33 of this commentary.)

21. The second change relates to the word "exiled", which was replaced by "expelled".

In the opinion of the Committee, the text needed was one which would prohibit any constitutional, legislative or administrative or judicial authority from expelling nationals from their own country.

More often than not the expulsion of nationals, whether individuals or groups, is inspired by political motives.

The maiority thought it preferable not to use the term "exile which is open to various difficulties of interpretation. It was agreed to speak of expulsion, although it was recognised that in normal technical usage this term applies to aliens only.

The word "expulsion" is to be understood here in the generic meaning, in current use (to drive away from a place).

It was understood that extradition was outside the scope of this paragraph.

It was also understood that an individual could not invoke this paragraph in order to avoid certain obligations which are not contrary to the Convention, for example, obligations concerning military service.

22. The third change was made for drafting purposes only, the expression "expelled from the territory of a State" was judged preferable to "expelled from the State".

23. The Committee again referred to the hypothesis of a State expelling one of its nationals after first depriving him of his nationality.

It was proposed to insert in Article 3 a provision to the effect that "a State would be forbidden to deprive a national of his nationality for the purpose of expelling him".

Although the principle which inspired the proposal was approved of by the Committee, the majority of the experts thought it was inadvisable in Article 3 to touch on the delicate question of the legitimacy of measures depriving individuals of nationality. It was also noted that it would be very difficult to prove, when a State deprived a national of his nationality and expelled him immediately afterwards, whether or not the deprivation of nationality had been ordered with the intention of expelling the person concerned.

24. A proposal to replace the words "state of which he is a national" in paragraphs 1 and 2 by "his own country" was not accepted.

Most experts considered that the first expression had a more precise legal meaning than the second.

Paragraph 2 of the Committee's draft

25. The Committee made two amendments to the text proposed by the Assembly.

26. The first amendment concerns the words "Everyone shall be free to" which were replaced by "No-one shall be deprived of the right to".

This phrase was suggested by the wording of Article 12, paragraph 4 of the draft International Covenant adopted by the Third Committee of the United Nations General Assembly.

This wording seemed a better solution than the other to a matter of twofold concern to the Committee:

27. The second change is purely a drafting one. The expression "enter the territory of the State" was found preferable to "enter the State".

28. The Committee considered that this paragraph should not contain the word "arbitrarily", which appears in Article 12, paragraph 4, of the United Nations' draft.

It was understood, however, that an individual's right to enter the territory of the State of which he was a national could not be interpreted as conferring on him an absolute right to remain in that territory . For example, a criminal who, having been extradited by the State of which he was a national, then escaped from prison in the other State, would not have an unconditional right to seek refuge in his own country. Similarly, a soldier serving on the territory of a State other than that of which he is a national, would not have a right to repatriation in order to remain in his own country.

29. The Committee agreed that the terms of paragraph 2 could be invoked only in relation to the State of which the victim of any violation of this provision was a national.

30. The experts of the Federal Republic of Germany declared that the expression "territory of the State of which he is a national" was not to be interpreted in a manner which might be prejudicial to the questions arising from the particular position of Germany as regards its internal relations.

31. The Committee decided that Article 4 should be devoted to the prohihition of collective expulsion of aliens, for which no provision is made in the Assembly's draft .

The Committee thought it desirable to insert in this article a provision by which collective expulsions of aliens of the kind which have already taken place would be formally prohibited.

32. This provision refers to collective expulsion of aliens, including Stateless persons. The collective expulsion of nationals is prohibited under Article 3, paragraph 1.

33. It was agreed that the adoption of this article and paragraph 1 of Article 3 could in no way be interpreted as in any way justifying measures of collective expulsion which may have been taken in the past.

34. The Committee decided not to include any provision i n the Protocol regarding the individual expulsion of aliens.

The Committee found that it would be difficult to include in this Protocol the Article 4 of the Assembly's draft, which is very nearly identical to Article 3 of the Convention on Establishment. Whether one or the other were eventually adopted, a certain number of important amendments would be required. The result would have been a very serious risk of conflict between the rules laid down in the Protocol and those of the European Convention on Establishment.

It might have been able to approve a text stipulating that the "decision of expulsion must be taken in accordance with law", that is, within the reasons and procedure privided by internal law.

But the majority of the Committee maintained that the State concerned should alone be competent, in applying such a provision, to judge of the reasons which, according to its internal law, could motivate expulsion and that such decisions should not be subject to control by the organs envisaged by the Convention.

The Committee felt that it would be undesirable to include in the Protocol an article in which such an express provision would be necessary, since such a limitation of the powers of these bodies was not easily reconcilable with the general organisation of the system of international protection set up by the Convention.

The Committee came to the conclusion that a provision to this effect should not be included. It was also felt that a provision limited to guarantees of a procedural character would be insufficient, and that it would be preferable to have no provision at all.

First of all, these procedural rights would have no application whenever the State "considered" that compelling reasons of national security required otherwise. According to this system it would be for the State concerned alone to judge whether such compelling reasons of national security did exist. This situation would prevent the exercise of the powers vested by the Convention in the bodies which it instituted for the purpose of ensuring that Contracting Parties would respect their commitments.

Furthermore, the "competent authority" before which the alien would have the right to have his case examined could be the same as that which was empowered to take the decision of expulsion; in that case, the alien would have no assurance of the impartiality of the authority.

35. The Committee decided not to include any provision to this effect in the Protocol on the grounds that:

The Committee also rejected a proposal suggesting a combination in one provision of the principles of recognition as a person before the law and equality before the law.

36. The Committee considered that a provision relating to equality before the law should not be included in its draft.

The Committee noted that the notion of equality before the law was subject to a wide variety of judicial interpretations and, for this reason, was not suitable for inclusion in a text which would have the binding legal force of a multilateral convention.

37. The Committee discussed the possibility of restricting the proposed guarantee to the right to equal protection, or to equality in the application of the law.

The majority of the experts thought that, even with this restriction, the provision was unacceptable, for reasons similar to those which prompted them to reject Article 5 of the Assembly's draft.

38. The Committee decided to add a paragraph 4 to Article 5 in order to take account of a problem which may arise in connection with States which are responsible for the international relations of overseas territories.

Thus, for example, insofar as nationality is concerned, there is no distinction between the United Kingdom and most of the territories for whose international relations it is responsible; in relation to these territories and the United Kingdom there is a common citizenship, designated as "citizenship of the United Kingdom and Colonies".

Persons who derive the common nationality from a connection with one such territory do not, however, have the right to admission to, or have immunity from expulsion from, another such territory. Each territory has its own laws relating to admission to and expulsion from its territory. Under these laws admission can be refused to persons who, though they possess the common nationality, do not derive it from connection with the territory in question, and in certain circumstances such persons can be expelled from that territory. Equally, persons who derive the common nationality from a connection with a dependent territory can in certain circumstances be refused admission to the United Kingdom or, if admitted, be expelled from the United Kingdom. What is said above is relevant to Article 3 of this Protocol, but a similar situation would arise as regards the interpretation of "territory" for the purposes of Article 2.

Accordingly, it is desirable that the references in Articles 2 and 3 to the territory of a State should relate to the metropolitan territory and each non-metropolitan territory separately, and not to a single geographical entity comprising the metropolitan and the other territories.

This interpretation would apply only to Article 2, paragraph 1, and to Article 3 of this Protocol.

39. One expert expressed the view that a Member State which is responsible for the international relations of a territory should readmit the nationals of this territory.

The Committee considered that the solution of such a problem was not a matter for the Convention on Human Rights or for its Second Protocol.

It was understood that the provisions of Article 5, paragraph 4 should not and could not have the result of affecting the rights of other Contracting Parties as regards the admission of persons to their territory.

40. The text for paragraph 4 originally proposed to the Committee by one expert included at the end of the paragraph the words: "and the reference in Article 3 to the State of which a person is a national shall be understood accordingly". It was agreed not t o include this phrase because its sense was already covered by the previous sentence of this paragraph.

41. One expert proposed an amendment substituting for the words "is applied" in paragraph 4 the words "can be applied".

The object of this amendment was to ensure that the paragraph could not be interpreted as meaning that persons whose nationality was derived from connection with an overseas territory to which this Protocol had not been applied could be regarded, in view of the terms of Article 3, paragraph 2, as having any right to enter the metropolitan territory. This amendment was not adopted since the Committee considered that the paragraph could not in any event be interpreted in this way.

42. One expert declared that he could not subscribe to the commentary made by the experts on draft Article 5.

43. The majority of the experts decided to adopt Alternative B of the text proposed by the Assembly.

In the Committee's opinion, it would be inappropriate to apply automatically declarations already made by Governments under Articles 25 and 46 of the Convention, to the rights and freedoms provided for in this Protocol, since such rights and freedoms were not envisaged by the Governments at the time of making such declarations.

It was also considered by the majority of the experts that the adoption of Alternative A might have the effect of delaying the signature or ratification of this Protocol.

44. The Committee decided, however, to amend Alternative B of the text proposed by the Assembly in one respect.

The amended text would permit States which make declarations relating to the right of individual recourse and to the compulsory jurisdiction of the Court to limit the application of such declarations to one or more articles only of the Second Protocol. Such a system would admittedly be different from that of the Convention and that of the First Protocol. But if version B of the Assembly's project were adopted as it stood, it could happen that certain States would refuse to recognise the Commission's competence to hear individual applications or the compulsory jurisdiction of the Court in respect of the whole of the Second Protocol, even though they were disposed to recognise that competence or that jurisdiction in respect of certain articles of the Second Protocol.

45. This text is identical to that proposed by the Assembly and requires no comment.