CM(2002)87 11 June 2002
804 Meeting, 11 July 2002
10 Legal questions
10.2 European Committee on legal co-operation (CDCJ) -
a. Abridged report of the 77th meeting (Strasbourg, 27-31 May 2002) 1
b. Draft Recommendation Rec (2002)… of the Committee of Ministers to member States on mediation in civil matters
LIST OF ITEMS DISCUSSED AND DECISIONS TAKEN
1. The European Committee on Legal Co-operation (CDCJ) met in Strasbourg from 27 to 31 May 2002. The agenda appear in Appendix I.
ITEMS SUBMITTED TO THE COMMITTEE OF MINISTERS FOR DECISION
2. The CDCJ invited the Committee of Ministers:
a. to adopt the draft Resolution authorising the setting up of the Enlarged Partial Agreement establishing the European Commission for Efficiency of Justice (CEPEJ) (see item 4 of the agenda and the two draft Resolutions in document CM(2002)88);
b. to adopt the text of the draft Recommendation on mediation in civil matters (see item 6 of the agenda and Appendix IV to this report and to authorise the publication of its draft explanatory memorandum (see Addendum to CM(2002)87);
c. to approve the draft revised specific terms of reference of the CDCJ (see item 14 of the agenda and Appendix II to this report);
d. to approve the draft specific terms of reference of the Group of specialists on identity and terrorism (CJ-S-ID) (see item 16 of the agenda and Appendix III to this report).
ITEMS SUBMITTED TO THE COMMITTEE OF MINISTERS FOR INFORMATION
3. The CDCJ invited the Committee of Ministers to note:
a. the discussions of the CDCJ concerning the improvement of the working methods of the CDCJ and its Bureau (see item 13 of the agenda);
b. the agreement of the CDCJ to admit Europol and Interpol as observers in the Project Group on data protection (CJ-PD) (see item 15 of the agenda);
c. the discussions of the CDCJ and its proposals for future activities (see item 16 of the agenda);
d. the standard setting role of the CDCJ in the field of justice (see item 4 of the agenda) and its proposal to hold a Conference or Colloquy in 2003 on “the state of information technology in court administration and legal information systems: defining standards” (see item 12b of the agenda);
e. the priority nature of the work of the CDCJ in particular in the field of justice which the CDCJ considered was among the core values of the Council of Europe in the field of justice and the Rule of Law (see item 4 of the agenda).
4. The CDCJ considered:
a. the request of the Ministers’ Deputies to give an opinion on Parliamentary Assembly Recommendation 1551 (2002) on Building a 21st century society with and for children: follow up to the European Strategy for children (Recommendation 1286 (1996) and requested its Bureau to forward its opinion to the Ministers’ Deputies before the end of 2002 (see item 9 of the agenda);
b. the contribution to be made by the CDCJ (see paragraph 2d above) and by the CJ-PD to the work of the Council of Europe in the fight against terrorism and in particular to the Multidisciplinary Group on international action against terrorism (GMT) (see item 11 of the agenda) and to the 25th Conference of European Ministers of Justice (see item 12a of the agenda);
c. the work carried out under its authority and took a number of decisions concerning its Bureau and certain committees and conferences (see items 11, 12b, 14, 16, 18 and 20 of the agenda);
d. the preparation of the 25th (Sofia, 4 to 6 June 2003) and 26th (Helsinki, 10 and 11 June 2004) Conferences of European Ministers of Justice (see item 12a of the agenda);
e. the follow up to be given to the Convention on information and legal co-operation concerning “Information Society Services” [ETS No.180] and to the Conventions in the field of family law (see item 17 of the agenda).
5. The CDCJ took note of:
a. the Action Plan on legal assistance schemes (see item 7 of the agenda);
b. the best practice survey on the operation of the European Convention on information on foreign law [ETS No. 62] and its additional Protocol [ETS No. 97] (see item 8 of the agenda and document CDCJ (2002) 15);
c. information concerning the work of the Parliamentary Assembly and other legal work carried out within the Council of Europe (see item 23a of the agenda);
d. information concerning the work carried out by the European Union on matters of interest to the CDCJ (see item 23b of the agenda and document CDCJ (2002) 27).
6. The CDCJ re-elected Mr E. KILBY (United Kingdom) as Chair for one year and re-elected Mr E. DESCH (Germany) as Vice-chair for one year. It elected Mr J. JANSEN (Netherlands) as a member of its Bureau for two years (see item 19 of the agenda).
7. The CDCJ decided to hold its next meeting during the week beginning 12 or 19 May 2003 (see items 21 and 22 of the agenda).
8. Finally the CDCJ invited the Committee of Ministers to take note of this report as a whole.
1. Opening of the meeting
2. Adoption of the agenda
3. Statement by the Secretariat (Information item)
4. Approval of the European Commission for efficiency of justice (CEPEJ): draft Resolution
5. Consideration of electronic signatures
6. Approval of the draft Recommendation on mediation in civil matters and its draft explanatory memorandum
7. Action Plan on legal assistance schemes
8. Best Practice Survey on the operation of the European Convention on information on foreign law [ETS No. 62] and its Additional Protocol [ETS No. 97]
9. Opinions on Parliamentary Assembly Recommendation 1551 (2002) on building a 21st century society with and for children: follow-up to the European strategy for children (Recommendation 1286 (1996))
10. Decisions of the Committee of Ministers concerning the CDCJ (Information item)
11. State of work of Committees of the CDCJ and work of Convention Committees of direct interest to the CDCJ (Information item)
12. Conferences and Colloquies in the legal field
13. Working methods of the CDCJ and its Bureau
14. Adoption of revised terms of reference of the CDCJ and certain subordinate committees
15. Requests for observer status in CDCJ committees
16. Proposals for future activities
17. Conventions or Recommendations
20. Tasks to be given to the Bureau of the CDCJ
21. Agenda of the 78th meeting of the CDCJ (2003)
22. Calendar of future meetings
23. Legal work carried out outside the CDCJ (Information item)
24. Any other business
Revised specific terms of reference
1. Name of Committee:
European Committee on Legal Co-operation (CDCJ)
2. Type of Committee:
3. Source of terms of reference:
Committee of Ministers
4. Terms of reference:
A. The CDCJ has the task to define the policy of legal intergovernmental co-operation and to fix priorities in the fields of public and private law.
B. The CDCJ shall carry out, in particular, the following tasks:
i. the supervision and organisation of the work of its committees, colloquies and conferences,
ii. the adoption of draft Conventions, Agreements, Protocols or Recommendations,
iii. monitoring the functioning and implementation of the international instruments coming within its field of competence and assistance to States for specific problems and co-operation with the appropriate Convention Committees,
iv. preparing, jointly with the European Committee on crime problems (CDPC), Conferences of European Ministers of Justice,
v. adoption, for the Committee of Ministers, of opinions on legal matters coming within the competence of the CDCJ,
vi. adoption, for the Committee of Ministers, of proposals for the programme of activities of the CDCJ,
vii. co-operation with other Council of Europe bodies in particular with the CDPC, the Multidisciplinary Group on international action against terrorism (GMT), the Consultative Council of European Judges (CCJE) and the European Commission for efficiency of justice (CEPEJ).
C. In particular, the CDCJ has the task to promote law reform and co-operation concerning:
i. administrative law
ii. data protection
iii. family law
iv. information technology and law
D. The CDCJ shall assist States:
i. to carry out appropriate reforms:
a. with regard to their domestic laws
b. to implement international instruments, including, where appropriate, reforms to ensure compliance with the provisions of the European Convention on Human Rights,
c. to take account, where appropriate, of:
- "areas of concern" relating to the compliance with commitments accepted by member States of the Council of Europe,
- proposals by the Parliamentary Assembly,
- proposals by the European Ministers of Justice,
- proposals by the Venice Commission,
- case law of the European Court of Human Rights.
ii. to obtain information by means of:
a. publications (in particular publications which present, in a consolidated form, the European achievements in each field of activity),
b. conferences and colloquies,
c. networks of specialists on legal matters coming within the competence of the CDCJ.
iii. to develop co-operation with each other by means of:
a. networks of specialists,
b. specific bodies, such as central authorities, set up under conventions.
5. Membership of the Committee:
a. The governments of all member States are entitled to appoint members with the following desirable qualifications: senior national officials; senior officials in the Ministry of Justice or any other Ministry and/or specialists in the field.
The Council of Europe's budget bears travelling and subsistence expenses for one expert per member State (two for the State assuming the Chair of the Committee).
The Council of Europe's budget also bears travelling and subsistence expenses for one representative of a subordinate committee of the CDCJ to attend a meeting of the CDCJ when the CDCJ has specifically requested the subordinate committee to be represented at its meeting.
b. The Parliamentary Assembly may send up to 3 representatives, without the right to vote, to meetings of the Committee.
c. The European Commission and the Council of the European Union may send representatives, without the right to vote or defrayal of expenses, to meetings of the Committee.
d. The following observers with the Council of Europe may send a representative without the right to vote or to a refund of expenses to meetings of the Committee:
- Holy See
- United States of America.
e. The following observers with the Committee may send representatives, without the right to vote or defrayal of expenses 2 , to meetings of the Committee:
- the Federal Republic of Yugoslavia
- the United Nations International Law Commission
- the United Nations Commission on International Trade Law (UNCITRAL)
- the International Institute for the Unification of Private Law (UNIDROIT)
- the Hague Conference on Private International Law
- the Office for Democratic Institutions and Human Rights (ODIHR)
- the Asian-African Legal Consultative Organization
- the International Commission on Civil Status
- the Council of Bars and Law Societies of the European Community.
6. Working structures and methods:
As from February 1992, the Bureau of the Committee comprises 6 members.
Renewal by tacit agreement (see Resolution (76) 3 paragraph 11).
Specific terms of reference
1. Name of Committee:
Group of Specialists on Identity and Terrorism (CJ-S-ID)
2. Type of Committee:
Committee of experts
3. Source of terms of reference:
European Committee on Legal Co-operation (CDCJ)
4. Terms of reference:
a. Under the authority of the CDCJ and in close co-operation with the Multidisciplinary Group on the International Action against Terrorism (GMT) and the European Committee on crime problems (CDPC), the CJ-S-ID shall, in the context of the fight against terrorism, report to the CDCJ on whether legal or practical problems exist in the field of identity and identity documents, and whether, and if so how, the Council of Europe could make a useful contribution.
b. In carrying out this work the CJ-S-ID shall take into account:
i. the existing methods of facilitating the identification of persons by means of appropriate identity, civil status and other documents as well as by other means, including the possibility of using genetic prints (DNA);
ii. the work being carried out by other relevant bodies in this field.
5. Membership of the Group:
a. The Group shall be composed of five specialists in the field of the establishment of the identity of persons, to be appointed by the Secretary General.
b. The travel and subsistence expenses of the specialists will be borne by the budget of the Council of Europe.
c. The Secretary General of the Council of the European Union and the Commission of the European Communities may send representatives to the meetings of the Group, without the right to vote or defrayal of expenses.
d. The following observers may send representatives, without the right to vote or defrayal of expenses:
- International Commission on Civil Status (CIEC);
6. Working structures and methods:
a. In order to discharge its functions, the Group may seek the advice of external experts and have recourse to studies by consultants;
b. The Group will complete the above terms of reference in not more than two meetings and will report to the CDCJ or its Bureau at the end of each meeting.
These terms of reference will expire on 30 June 2003.
Recommendation Rec (2002)…
of the Committee of Ministers to member States
on mediation in civil matters
(adopted by the Committee of Ministers on …,
at the … meeting of the Ministers’ Deputies)
The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Welcoming the development of means of resolving disputes alternative to judicial decisions and agreeing on the desirability of rules providing guarantees when using such means;
Underlining the need to make continuous efforts to improve the methods of resolving disputes, while taking into account the special features of each jurisdiction;
Convinced of the advantages of providing specific rules for mediation, a process where a “mediator” assists the parties to negotiate over the issues in dispute and reach their own joint agreement;
Recognising the advantages of mediation in civil matters in appropriate cases;
Conscious of the necessity to organise mediation in other branches of the law;
Having in mind Recommendation No. R(98)1 on family mediation, Recommendation No. R(99)19 on mediation in penal matters and Recommendation Rec(2001)9 on alternatives to litigation between administrative authorities and private parties, as well as the results of other activities and research carried out by the Council of Europe and at a national level;
Having regard more particularly to Resolution No. 1 on “Delivering justice in the 21st century” adopted by the European Ministers of Justice at their 23rd Conference in London on 8-9 June 2000 and in particular to the invitation addressed by the European Ministers of Justice to the Committee of Ministers of the Council of Europe to draw up, in co-operation in particular with the European Union, a programme of work aimed at encouraging the use, where appropriate, of extra-judicial dispute resolution procedures;
Aware of the important role of courts in promoting mediation;
Noting that, although mediation may help to reduce conflicts and the workload of courts, it cannot be a substitute for an efficient, fair and easily accessible judicial system;
A. Recommends the governments of member States:
i. to facilitate mediation in civil matters whenever appropriate;
ii. to take or reinforce, as the case may be, all measures which they consider necessary with a view to the progressive implementation of the “Guiding Principles concerning mediation in civil matters” set out below.
Guiding Principles concerning mediation in civil matters
I. Definition of mediation
1. For the purposes of this Recommendation, “mediation” refers to a dispute resolution process whereby parties negotiate over the issues in dispute in order to reach an agreement with the assistance of one or more mediators.
II. Scope of application
2. This Recommendation applies to civil matters. For the purpose of this Recommendation, the term “civil matters” refers to matters involving civil rights and obligations including matters of a commercial, consumer and labour law nature, but excluding administrative or penal matters. This Recommendation is without prejudice to the provisions of Recommendation No. R(98)1 on family mediation.
III. Organisation of mediation
3. States are free to organise and set up mediation in civil matters in the most appropriate way, either through the public or the private sector.
4. Mediation may take place within or outside court procedures.
5. Even if parties make use of mediation, access to the court should be available as it constitutes the ultimate guarantee for the protection of the rights of the parties.
6. When organising mediation, States should strike a balance between the needs for and the effects of limitation periods and the promotion of speedy and easily accessible mediation procedures.
7. When organising mediation, States should pay attention to the need to avoid (i) unnecessary delay and (ii) the use of mediation as a delaying tactic.
8. Mediation may be particularly useful where judicial procedures alone are less appropriate for the parties, especially owing to the costs, the formal nature of judicial procedures, or where there is a need to maintain dialogue or contacts between the parties.
9. States should take into consideration the opportunity of setting up and providing wholly or partly free mediation or providing legal aid for mediation in particular if the interests of one of the parties require special protection.
10. Where mediation gives rise to costs, they should be reasonable and proportionate to the importance of the issue at stake and to the amount of work carried out by the mediator.
IV. Mediation process
11. States should consider the extent, if any, to which agreements to submit a dispute to mediation may restrict the parties’ rights of action.
12. Mediators should act independently and impartially and should ensure that the principle of equality of arms be respected during the mediation process. The mediator has no power to impose a solution on the parties.
13. Information on the mediation process is confidential and may not be used subsequently, unless agreed by the parties or allowed by national law.
14. Mediation processes should ensure that the parties be given sufficient time to consider the issues at stake and any other possible settlement of the dispute.
V. Training and responsibility of mediators
15. States should consider taking measures to promote the adoption of appropriate standards for the selection, responsibilities, training and qualification of mediators, including mediators dealing with international issues.
VI. Agreements reached in mediation
16. In order to define the subject-matter, the scope and the conclusions of the agreement, a written document should usually be drawn up at the end of every mediation procedure, and the parties should be allowed a limited time for reflection, which is agreed by the parties, after the document has been drawn up and before signing it.
17. Mediators should inform the parties of the effect of agreements reached and of the steps which have to be taken if one or both parties wish to enforce their agreement. Such agreements should not run counter to public order.
VII. Information on mediation
18. States should provide the public and the persons with civil disputes with general information on mediation.
19. States should collect and distribute detailed information on mediation in civil matters including, inter alia, the costs and efficiency of mediation.
20. Steps should be taken to set up, in accordance with national law and practice, a network of regional and/or local centres where individuals can obtain impartial advice and information on mediation, including by telephone, correspondence or e-mail.
21. States should provide information on mediation in civil matters to professionals involved in the functioning of justice.
VIII. International aspects
22. States should encourage the setting up of mechanisms to promote the use of mediation to resolve issues with an international element.
23. States should promote co-operation between existing services dealing with mediation in civil matters with a view to facilitating the use of international mediation.
B. Instructs the Secretary General of the Council of Europe to transmit this Recommendation to the competent authorities of the European Union, with a view to:
- promoting co-operation between the Council of Europe and the European Union in any follow-up to this Recommendation and, in particular, to disseminate information on the laws and procedures in States on the matters mentioned in this Recommendation through an Internet web site;
- encouraging the European Union, when preparing rules at the European Community level, to draw up provisions aiming at supplementing or strengthening the provisions of this Recommendation or facilitating the application of the principles embodied in it.