PARTLY DISSENTING OPINION OF JUDGE VALTICOS

(Translation)

In the case of Chorherr v. Austria , one of the questions which arose was that of the validity of the reservation made by the Austrian Government in respect of Article 5 (art. 5) of the European Convention on Human Rights when they ratified that Convention in 1958.

In general, since the adoption of the Convention, sufficient attention would not seem to have been paid to the question of the reservations made in relation thereto and it gives rise to issues which are far from simple.

The Convention itself authorises reservations to the Convention, but subject to specific conditions which do not appear always to have been strictly complied with. It does so in Article 64 (art. 64), which is worded as follows:

"1. Any State may, when signing [the] Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision. Reservations of a general character shall not be permitted under this Article (art. 64).

2. Any reservation made under this Article (art. 64) shall contain a brief statement of the law concerned."

Such reservations are therefore subject to four conditions:

1. They must be made when the Convention is signed or when the instrument of ratification is deposited, and therefore no later.

2. They are authorised only in so far as a law then in force in the territory of the country concerned is not in conformity with the particular Convention provision in question. They cannot therefore extend to laws enacted subsequently or, presumably, to instruments which are not laws.

3. Reservations of a general character are not permitted.

4. Every reservation must contain a brief statement of the law concerned. It follows that the substance of the law to which the reservation relates must be briefly set out so that the parties concerned (States, individuals and supervisory institutions) know what the precise scope of the reservation is. Accordingly, it is not sufficient merely to indicate the law in question mentioning its date, number or even title. Sufficient indication of its substance must be given.

In the light of these general principles, it can only be concluded that the reservation made by the Austrian Government in respect of Article 5 (art. 5) of the Convention does not fully satisfy that last condition. It is worded as follows:

"The provisions of Article 5 (art. 5) of the Convention shall be so applied that there shall be no interference with the measures for the deprivation of liberty prescribed in the laws on administrative procedure, BGBl no. 172/1950, subject to review by the Administrative Court or the Constitutional Court as provided for in the Austrian Federal Constitution."

This provision is precise only with regard to the identification of the laws in question and the subject-matter dealt with (certain deprivations of liberty which are subject only to subsequent review by the Administrative Court or the Constitutional Court), without further specification. It clearly does not contain a "brief statement" of the substance of this law which would make it possible to understand the law ’ s content and its scope, or to determine whether the text amounts to a general reservation which is not permitted under the Convention.

Accordingly, in my view, the reservation cannot be regarded as valid and cannot therefore be taken into account.

In these circumstances, compliance with Article 5 (art. 5) of the Convention must be examined regardless of this "reservation".

Nevertheless, before such an examination is undertaken in this case, it is also necessary to consider more closely a much wider problem concerning reservations, namely when, and above all in what circumstances, their validity can be examined, which gives rise to various questions. The first aspect (the timing) is only partly clear. Practice has helped to render it more obscure. The basic text, which is Article 64 (art. 64), does not permit of any doubt: it is, as has been seen, "when signing [the] Convention or when depositing [the] instrument of ratification" that the reservation must be made, and no later. But it is also necessary that the reservation should relate to a law which was, as has been said, then in force in the country and which was not then in conformity with the provision of the Convention in question.

Thus, under the Convention, certain discrepancies may be maintained, but it is not possible to derogate from that instrument at a later date. Where the law in question is amended, the discrepancy to which the reservation relates could no doubt, if a strict view is not taken, be retained in the new text, but it could not of course be widened.

We now come to an important question: how and when can the institutions responsible for ensuring observance of the Convention satisfy themselves of the conformity of reservations deposited by the States with the conditions laid down by the Convention? This is where a problem arises and a lacuna appears to exist.

In principle, the institutions responsible for review (Court and Commission) examine the question of compliance with the Convention only if an application is submitted by a State, an individual, etc. alleging non-compliance with the Convention. On such an occasion, the question of the validity of a reservation may arise if the application concerns compliance by a respondent State with a provision which has been the subject of a reservation. This was the situation in the Belilos v. Switzerland case (judgment of 29 April 1988 , Series A no. 132) among others.

But what happens if an application is not submitted, or so long as an application is not submitted, in relation to such a provision?

It appears that when a State ratifies the Convention, there is no regular, systematic practice of verifying, or at any rate of judicially reviewing, the validity of reservations (or of interpretative declarations, which are often reservations in disguise).

If I am correctly informed, Council of Europe officials have on occasion conducted more or less unofficial exchanges of views with the national civil servants concerned and, when the reservation (or interpretative declaration) is deposited with the instrument of ratification of the Convention, the Secretariat of the Council of Europe notifies the declaration to the other member States (see, for example, notification reference JJ 2175 C, tr/5-21 of 26 January 1989). It may happen that States submit comments or objections, but this does not affect the validity of the reservation or declaration (unless, presumably, these objections are particularly numerous).

Such a practice - if I have correctly understood it - is of course common where simple multilateral conventions are involved. It corresponds more or less to the provisions (Articles 19 and 20) of the Vienna Convention on the Law of Treaties of 1969, but that Convention "reserves" its position as regards the situation in which reservations are prohibited by the treaty in question and that in which only certain reservations may be made. This is exactly the position with which we are confronted. As regards the European Convention on Human Rights and in view of its nature and its purpose, it cannot be considered that the objection made by a State to a reservation made by another precludes the State which made the reservation from becoming a party to the Convention in relation to the State which has objected. Such a view, which is already disputable as such [*] , cannot apply to the European Convention on Human Rights, which constitutes what Georges Scelle would have called a Law Treaty (as opposed to Contract Treaties) and which is in addition - and this is crucial here - equipped with judicial control machinery.

It is therefore necessary in the present case to take account, for the purpose of considering reservations, of two important special features: first, as has been said, the fact that the Convention specifies in Article 64 (art. 64) which reservations are authorised and secondly, the fact that the Convention has set up an organised control system and that it is therefore the institutions constituted under that system which, as in the Belilos case, are called upon to determine the compatibility of a reservation with the terms of the Convention.

It is therefore this control machinery and it alone, in other words essentially the Court, which can rule on the validity of a reservation. That is moreover what has on occasion happened, but in less than satisfactory conditions because a question of a practical nature arises in addition to the legal issue.

Reference may be made in this regard to the Belilos judgment, in which the Court, examining an application concerning Switzerland, had to consider an "interpretative declaration" deposited when that country ratified the Convention, in 1974, and took the view, in its judgment delivered in 1988, that the declaration in question could not be accepted. It therefore ruled on the substance of the case without taking account of the reservation. But that meant that for fourteen years Switzerland had been under the impression that its declaration was valid. Following the Court ’ s judgment, it made another "interpretative declaration", which was therefore submitted some considerable time after ratification (which gives rise to another problem, which will be examined below).

We must therefore ask ourselves how many reservations already deposited by various States really comply with the conditions laid down in Article 64 (art. 64). It suffices to read the text of such reservations to appreciate that there is some cause for concern. Behind the impressive façade of ratification of the Convention by all the member States of the Council of Europe, reservations sometimes constitute regrettable cracks.

So what should be done? And here a distinction should be drawn between reservations which have already been deposited and those which may be in the future by new member States.

Clearly we have to be realistic. It would be impossible now to call into question what has been done over a period of several decades. That would be a daunting task and would cast doubt upon the legal certainty created by so many years of tacit acceptance. It is only in connection with specific applications relating to compliance with a provision which has been the subject of a reservation that the question should be examined. In such cases, the Commission should systematically transmit the question to the Court so that it may review the position.

On the other hand, for any new ratification of the Convention which contains a reservation or interpretative declaration equivalent to a reservation it would be appropriate for the Council of Europe, before registering the ratification, to submit to the Court the issue of the reservation ’ s conformity with Article 64 (art. 64). This is a question of the observance of the Convention, which the Court was set up to ensure.

There remains one last question, which was referred to above: if, several years after it has been made (when the Convention was ratified), a reservation is found to be contrary to the rules laid down in Article 64 (art. 64) and is therefore held to be null and void, can it be replaced by another reservation which is more consistent with that Article (art. 64)? In principle that should not be possible, because a reservation may be made only at the moment of ratification. That would, however, be unreasonable, because the government concerned have been informed of the non-validity of their reservation only several years after the ratification. The government in question should therefore have the opportunity to rectify the situation and to submit a valid reservation within a reasonable time and on the basis of their former reservation. That is what appears to have happened in regard to the Swiss declaration which the Belilos judgment found to be invalid, but the government concerned ought also - and this does not appear to have been done - to inform the Court of the new wording, so that it can rule on the validity of the declaration, since otherwise the problem may recur.

The matter having been discussed from a general point of view, what happens in the present case (Chorherr) if the Austrian Government ’ s reservation concerning Article 5 (art. 5) of the Convention is not valid? Article 5 (art. 5) should then be fully applicable to the case before the Court. In my view, it may nevertheless be held that there has been no violation of this provision, in view of the fact that the individuals in question were arrested because, as is stated in Article 5 (art. 5), it was reasonably considered necessary to prevent them committing a public-order offence.

The case must therefore be studied in the different context of Article 10 (art. 10), which concerns freedom of expression. In this respect I consider that there has been a violation as the means used by the police were disproportionate to the legitimate aim pursued, regard being had to the importance of freedom of expression in a democratic society.