CRONOGRAMA DE TRABAJO

According to Art. 23 the Court shall examine cases brought before it, if it has a quorum of at least seven judges. Since according to Art. 11 the Court consists of eleven judges it follows that there will be only a single board to consider the complaints.

However, the Cape Town Draft still allowed the Court to constitute two chambers each of which manned by at least five judges „if the necessity arises“.340

Tunisia saw the problem that there was no institution that would reassign the judges to the new chambers and determine each chamber’s competencies.341

Although the conference of ministers discarded this demur and pointed out that these matters should be solved by the Court’s rules of procedure „where it properly belongs“342

the Nouackchott Conference deleted this addendum according to which the Court could be split up into two chambers.343

Envisioning only one chamber the protocol follows its Inter-American counterpart. The IACtHR is quorate with five (from a total of seven) judges.344

The ECHR on the other hand has refined the chamber system after entry into force of the 11th protocol: the Court sits in committees of three judges, in Chambers of seven judges and in a Grand Chamber of seventeen judges, depending on the state of procedure.345

Especially the creation of the Grand Chamber which on the hand is responsible for inter state complaints and such individual complaints that raise serious questions affecting the interpretation of the Convention, or where the resolution of a question before the Chamber might have a result inconsistent with a

340

Art. 20 Cape Town Draft. 341

Observations and Comments of the Government of Tunisia on the Draft Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, Art. 20, CM/1996(LXV)Annex III (e) p. 2.

342

Report of the Secretary General on the Draft Protocol on the Establishment of an African Court on Human and Peoples’ Rights, Council of Ministers 65th Ordinary Session, CM/1996(LXV) para 30.

343

Report of the Second Governmental Legal Expert meeting on the Establishment of an African Court on Human and Peoples’ Rights, OAU/LEG/EXP/AFCHPR/RPT(2), para 40.

344

Art. 23 I Statute of the Inter-American Court of Human Rights. 345

Art. 27-32 ECHR, comp. for an overview on the deliberation procedure and competencies of the Chambers and Committees Mark Villinger, The 11th additional protocol in practice, in: SZIER (1999) pp. 79-95, at p. 81 et seqq.

judgment previously delivered by the Court346

and on the other hand quasi functions as a Chamber of appeal „in exceptional cases“347

is seen as a fundamental novum in the scope of the Court’s reform.348

Such a detailed chamber system surely would not fit the needs of the African Court. However, it must nevertheless be doubted that the provision in force displays the best solution: The Commission underlined in its comments to the Nouackchott Draft that it would not be wise to lay down a fix quorum of seven judges for each stage of the procedure since the record of the Commissions deliberations showed that it faced difficulties every now and then to reach the neccesary quorum.349

Secondly, this stare quorum would foreclose any division of work of the Court however natured, since all present judges would be bound to the single chamber.350

These objections remained unheard, however. The provision of the Cape Town Draft surely was more adaptive; should the caseload of the Court become unbearable for one chamber one day instead of a mere internal decision of the Court the complicated diplomatic process of an amendment of the protocol would have to be started by the member States.

However, the Court might bypass the terminatory character of Art. 23 for certain phases of the complaint procedure. Starting point of such a deliberation is a narrow interpretation of the wording „examine“ in Art. 23: The Court should consider the possibility to exclude at least the handling of apparently inadmissible complaints from the scope of Art. 23. The Chamber would be discharged at least insofar and could spare its time for deliberations on legally comprehensive complaints.351 346 Art. 30, 31 ECHR. 347 Art. 43 ECHR. 348

Comp. Volker Schlette, Das neue Rechtsschutzsystem der europäischen Menschenrechtskonvention in: ZaÖRV 56 (1996) pp. 905-976, at p. 950 et seqq.; Andrew Drzembczewski, The Internal Organisation of the European Court of Human Rights, in: LHRQ 3 (1999) pp. 109-128, at 110 et seq.

349

Art. 43 III AfrCHPR also constitutes the quorum of seven with regard to the Commission. However, at its 16th session only eight Commissioners could take part two of whom became sick during the deliberations. The Commission proceeded with the session nonetheless, Evelyn Ankumah, The African Commission on Human and Peoples’ Rights, The Hague 1996, p. 50. The Commission decided on on the merits of nine communications, declared five as admissable and rejected seven more as inadmissable, comp. Final Communiqué of the 16th Session of the African Commission on Human and Peoples’ Rights, 25 October – 3rd November 1994, para 47. Such a modus operandi is equivocal even for a quasi judicial organ like the Commission. For the Court it would be absolutely intolerable since it would cast doubts on any decision of the chamber.

350

Report of the Secretary General on the Draft Protocol on the Establishment of Human and Peoples’ Rights, Council of Ministers, 66th Ordninary Session, CM/2020(LXVI)1997, para. 18.

351

It was expected in the course of the reformation of the European system that the Committees would declare up to 95 percent of the complaints (terminatory) as inadmissable before they are being considered by the Chamber, Alistair Mowbray, Reform of the Control System of the European Convention of Human Rights, in: Public Law 1994 (p540-552, at 547; same, A New European Court of Human Rights, in Public Law, 1993, pp´. 419-426, at 424. The Committees have fully complied with these expectations: 95,9 percent of the complaints have been declared indamissable in 2006, comp. www.echr.coe.int/