CM(2007)78 18 May 20071
999bis Meeting, 20 June 2007
10 Legal questions
10.3 European Committee on Legal Co-operation (CDCJ) -
Abridged report of the 82nd meeting (Strasbourg, 26 February – 1 March 2007)
Item to be considered by the GR-J at its meting on 12.06.2007
1. The European Committee on Legal Co-operation (CDCJ) met in Strasbourg from 26 February to 1 March 2007. The agenda appears in Appendix 1. The list of participants can be obtained from the Directorate of Legal Affairs.
ITEMS SUBMITTED TO THE COMMITTEE OF MINISTERS FOR DECISION
2. The CDCJ invited the Committee of Ministers:
a. to adopt the draft European Convention on the adoption of children (Revised) and to take note of the draft Explanatory Report thereto (see document CM(2007)44 and Addendum), and to decide to open it for signature;2
b. to adopt the draft Recommendation on good administration (see Appendix 2 to this document);
c. to adopt the draft Recommendation on legal solutions to debt problems and to take note of the draft Explanatory Memorandum thereto (see Appendix 3 to this document and document CM(2007)78 addendum 1);
d. to adopt the draft Recommendation on the legal status of non-governmental organisations in Europe and to take note of the draft Explanatory Memorandum thereto (see Appendix 4 to this document and document CM(2007)78 addendum 2);
e. to take note of its Opinion on Parliamentary Assembly Recommendation 1778 (2007) on “Child victims: stamping out all forms of violence, exploitation and abuse” (see Appendix 5 to this document)3;
f. to take note of its Reply to the Summary of the Joint OSCE-Council of Europe Expert Workshop on “Preventing Terrorism: Fighting Incitement and Related Terrorist Activities” (Vienna, 19-20 October 2006) (see Appendix 6 to this document);
g. to take note of its Reply to the Message of the Committee of Ministers to committees involved in intergovernmental co operation at the Council of Europe (adopted on 27 September 2006) and in particular of the future priorities of the CDCJ contained therein, finalised by the Bureau after the plenary meeting of the CDCJ (see Appendix 7 to this document);
h. to take note of the present report as a whole.
ITEMS SUBMITTED TO THE COMMITTEE OF MINISTERS FOR INFORMATION
3. The CDCJ:
a. decided to entrust the Bureau of the CDCJ to pursue the CDCJ discussions on future priorities taking into account the guidelines of the Committee of Ministers contained in the document CM(2006)101Final “Establishing criteria for projects” and instructed the Secretariat to ensure that any projects proposed as future activities of the CDCJ be prepared in full conformity with the requirements of the Committee of Ministers;
b. decided to entrust the Bureau of the CDCJ with the examination of the new draft terms of reference of its subordinate bodies for 2008 as it will consider it necessary with a view to approving them and forwarding to the Committee of Ministers for adoption; current terms of reference of all subordinate bodies of the CDCJ end on 31 December 2007;
c. expressed the intention to organise the Multilateral Seminar on Medical liability in the same week as the 83rd Plenary meeting of the CDCJ in 2008, with a view to benefiting from the presence of the members of the CDCJ on this occasion.
4. The CDCJ considered:
a. the follow-up to Resolution No. 1 of the 27th Conference of the European Ministers of Justice (Yerevan, 12-13 October 2006) and took note of the support it expressed for the work entrusted to the Group of Specialists on Remedies for Crime Victims (CJ-S-VICT);
b. the preparation of the 28th Conference of the European Ministers of Justice which will take place on 25-26 October 2007 in Lanzarote (Canary Islands, Spain) and defined the main theme of the Conference “Emerging issues of access to justice for vulnerable groups, in particular: migrants and asylum seekers; children, including children perpetrators of crime”.
5. The CDCJ took note of:
a. the confirmation of Luxembourg authorities to accept the Interpretation Agreement authorising Partial Denunciation of the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality (ETS N°43 of 1963) and welcomed the possibility for this agreement to enter into force in the near future;
b. the decisions of the Committee of Ministers concerning the CDCJ (see item 2 on the Agenda) and in particular of the approval by the Committee of Ministers of the terms of reference of its subordinate bodies4 for 2007, including the future tasks of these bodies;
c. the Recommendation 194 (2006) on effective access to social rights for immigrants and the Recommendation 197 (2006) on urban security in Europe, adopted by the Congress of the Local and Regional Authorities of Europe (CLRAE) and decided to bring to the attention of the Congress the draft Recommendation on Good Administration, subject to its approval by the Committee of Ministers;
d. the information concerning work of the other bodies of the Council of Europe, relevant to the CDCJ’s work5;
e. the decision of its Bureau to publish the following reports and expert studies prepared upon the CDCJ’s request: ‘Promoting acquisition of citizenship as a means to reduce statelessness’ by Mr Roland SCHÄRER, (Switzerland), ‘The nationality of the child’ by Mr Zdzislaw GALICKI (Poland), and ‘Nationality issues and denial of residence in the context of the fight against terrorism’ by Mr Andrew WALMSLEY (United Kingdom), ‘Indemnifying victims of terrorism’ by Mr Bernhard A. KOCH (Austria), the Report “On the implementation of the Council of Europe legal instruments in the field of family law” by Professor Nigel LOWE;
6. The CDCJ elected Mr Pekka NURMI (Finland) as Chair and Mr Séamus CARROLL (Ireland) as Vice-Chair for one year. It also re-elected Ms Nichole COCHET (France) and elected Mr Eberhard DESCH (Germany) and Mr Francesco CRISAFULLI (Italy) as members of the Bureau for two years.
7. The CDCJ entrusted its Bureau with making a final decision concerning the dates of its next plenary meeting in 2008.
1. OPENING OF THE MEETING
2. ADOPTION OF THE AGENDA
3. IMPLEMENTATION OF THE ACTION PLAN OF THE WARSAW SUMMIT
4. DRAFT LEGAL INSTRUMENTS TO BE APPROVED BY THE CDCJ
4.1 Approval of the draft European Convention on the Adoption of Children
4.2 Approval of the draft Recommendation on Good Administration
4.3 Approval of the draft Recommendation on legal solutions to debt problems
4.4 Approval of the draft Recommendation on the legal status of non-governmental organisations in Europe
5. OPINIONS, REPLIES AND OTHER INFORMATION
5.1 Adoption of the Opinion of the CDCJ on the Parliamentary Assembly Recommendation 1778 (2007) on “Child victims: stamping out all forms of violence, exploitation and abuse”.
5.2 Adoption of the Reply of the CDCJ to the Joint OSCE-Council of Europe Expert Workshop on Preventing Terrorism (Vienna, 19-20 October 2006) requested by the Committee of Ministers at their 981st meeting
5.3 Recommendations of the Congress of Local and Regional Authorities
6. FUTURE WORK OF THE CDCJ AND ITS SUBORDINATE BODIES
Priorities of the CDCJ for 2008
6.1 Project Group on Administrative law (CJ-DA)
6.2 Committee of Experts on Family law (CJ-FA)
6.3 Group of Specialists on the independence, efficiency and role of judges (CJ-S-JUST)
6.4 Group of Scientific experts on medical liability (CJ-S-MED)
6.5 Group of Specialists on remedies for crime victims (CJ-S-VICT)
6.7 Refugees and asylum seekers
6.8 Cross-border movement of persons
6.9 Access to genetic information for questions not related to health
6.10 Thematic monitoring of legal instruments falling within the competence of the CDCJ
6.10.1 Monitoring legal instruments in the field of family law
6.10.2 Monitoring of other legal instruments falling within the competence of the CDCJ
7. WORK OF OTHER COMMITTEES OF DIRECT INTEREST TO THE CDCJ
7.1 European Commission on the Efficiency of Justice (CEPEJ)
7.2 Consultative Council of European Judges (CCJE)
7.3 Committee of Experts on Terrorism (CODEXTER)
7.4 Consultative Committee on the European Convention for the Protection of Individuals with regard to the Automatic Processing of Personal Data (T-PD)
7.5 T-ED Committee - European Convention on the Exercise of Children's Rights
7.6 T-CC Committee - European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children
7.7 Ad hoc Committee on e-democracy (CAHDE)
7.8 Work of the Steering Committee for Human Rights (CDDH) and its subordinate bodies
7.9 European Committee on Migration (CDMG)
8. CONFERENCES AND COLLOQUIES IN THE LEGAL FIELD
8.1 27th Conference of the European Ministers of Justice, 12-13 October 2006, Yerevan, Armenia
8.2 Preparation of the 28th Conference of European Ministers of Justice, 25 - 26 October 2007, Lanzarote (Canary Islands), Spain
8.3 Preparation of the multilateral seminar on medical liability in Europe, planned in 2008
9. COUNCIL OF EUROPE LEGAL INSTRUMENTS
Interpretation Agreement authorising Partial Denunciation of the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality (ETS N°43 of 1963)
III. ELECTIONS AND APPOINTMENTS
10. APPOINTMENT OF THE REPRESENTATIVES OF THE CDCJ TO OTHER COUNCIL OF EUROPE BODIES
11. ELECTION OF THE CHAIR, VICE-CHAIR AND MEMBERS OF THE BUREAU
IV. FUTURE MEETINGS OF THE CDCJ AND ITS BUREAU
12. CALENDAR OF FUTURE MEETINGS
13. OTHER BUSINESS
DRAFT RECOMMENDATION REC (…) OF THE COMMITTEE OF MINISTERS TO MEMBER STATES ON GOOD ADMINISTRATION
The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Having regard to Recommendation 1615 (2003) of the Parliamentary Assembly, which calls on the Committee of Ministers to draft a model text for a basic individual right to good administration and a single, comprehensive, consolidated model code of good administration, based in particular on Committee of Ministers’ Recommendation No. R (80) 2 and Resolution (77) 31 and the European Code of Good Administrative Behaviour (2001), in order to define the basic right to good administration, and therefore facilitate its effective implementation in practice;
Having regard to Resolution (77) 31 of the Committee of Ministers on the protection of the individual in relation to the acts of administrative authorities;
Having regard to Recommendation No. R (80) 2 of the Committee of Ministers concerning the exercise of discretionary powers by administrative authorities;
Having regard to Recommendation No. R (81) 19 of the Committee of Ministers on the access to information held by public authorities;
Having regard to Recommendation No. R (84) 15 of the Committee of Ministers relating to public liability;
Having regard to Recommendation No. R (87) 16 of the Committee of Ministers on administrative procedures affecting a large number of persons;
Having regard to Recommendation No. R (91) 10 of the Committee of Ministers on the communication to third parties of personal data held by public bodies;
Having regard to Recommendation No. R (2000) 6 of the Committee of Ministers on the status of public officials in Europe;
Having regard to Recommendation No. R (2000) 10 of the Committee of Ministers on codes of conduct for public officials;
Having regard to Recommendation Rec(2002)2 of the Committee of Ministers on access to official documents;
Having regard to Recommendation Rec(2003)16 of the Committee of Ministers on the execution of administrative and judicial decisions in the field of administrative law;
Having regard to Recommendation Rec(2004)20 of the Committee of Ministers on judicial review of administrative acts;
Considering that the aim of the Council of Europe is to achieve a greater unity between its members;
Considering that public authorities play a key role in democratic societies; that they are active in numerous spheres; that their activities affect private persons’ rights and interests; that national legislation and various international instruments, particularly those of the Council of Europe, offer these persons certain rights with regard to the administration; and that the European Court of Human Rights has applied the Convention for the Protection of Human Rights and Fundamental Freedoms to the protection of private persons in their relations with the administration;
Considering that public authorities must provide private persons with a certain number of services and issue certain instructions and rulings, and that when the public authorities are required to take action, they must do so within a reasonable period;
Considering that cases of maladministration, whether as a result of official inaction, delays in taking action or taking action in breach of official obligations, must be subject to sanctions through appropriate procedures, which may include judicial procedures;
Considering that good administration must be ensured by the quality of legislation, which must be appropriate and consistent, clear, easily understood and accessible;
Considering that good administration implies that services must meet the basic needs of society;
Considering that good administration in many situations involves striking an appropriate balance between the rights and interests of those directly affected by state action on the one hand, and the protection of the interests of the community at large, in particular those of the weak or vulnerable, on the other, and recognising that procedures intended to protect the interests of individuals in their relations with the state should in certain circumstances protect the interests of others or the wider community;
Considering that good administration is an aspect of good governance; that it is not just concerned with legal arrangements; that it depends on the quality of organisation and management; that it must meet the requirements of effectiveness, efficiency and relevance to the needs of society; that it must maintain, uphold and safeguard public property and other public interests; that it must comply with budgetary requirements; and that it must preclude all forms of corruption;
Considering that good administration is dependent on adequate human resources available to the public authorities and on the qualities and appropriate training of public officials;
Considering that the administration exercises its prerogative of public power to carry out the tasks required of it; that these powers might however, if used in an inappropriate or excessive manner, infringe the rights of private persons;
Considering that it is desirable to combine the various recognised rights with regard to the public authorities into a right to good administration and to clarify its content, following the example of the Charter of Fundamental Rights of the European Union (2000);
Considering that the requirements of a right to good administration may be reinforced by a general legal instrument; that these requirements stem from the fundamental principles of the rule of law, such as those of lawfulness, equality, impartiality, proportionality, legal certainty, taking action within a reasonable time limit, participation, respect for privacy and transparency; and that they provide for procedures to protect the rights and interests of private persons, inform them and enable them to participate in the adoption of administrative decisions,
Recommends that the governments of member states:
– promote good administration within the framework of the principles of the rule of law and democracy;
– promote good administration through the organisation and functioning of public authorities ensuring efficiency, effectiveness and value for money. These principles require that member states:
- ensure that objectives are set and performance indicators are devised in order to monitor and measure, on a regular basis, the achievement of these objectives by the administration and its public officials;
- compel public authorities to regularly check, within the remit of the law, whether their services are provided at an appropriate cost and whether they shall be replaced or withdrawn;
- compel the administration to seek the best means to obtain the best results;
- conduct appropriate internal and external monitoring of the administration and the action of its public officials;
– promote the right to good administration in the interests of all, by adopting, as appropriate, the standards set out in the model code appended to this recommendation, assuring their effective implementation by the officials of member states and doing whatever may be permissible within the constitutional and legal structure of the state to ensure that regional and local governments adopt the same standards.
Appendix to the recommendation
Code of good administration
Article 1 – Scope
1. This code lays down principles and rules which should be applied by public authorities in their relations with private persons, in order to achieve good administration.
2. For the purposes of this code, “public authorities” shall be taken to mean:
a. any public-law entity of any kind or at any level, including state, local and autonomous authorities, providing a public service or acting in the public interest;
b. any private-law entity exercising the prerogatives of a public authority responsible for providing a public service or acting in the public interest.
3. For the purposes of this code, “private persons” shall be taken to mean individuals and legal persons under private law who are the subject of activities by public authorities.
Principles of good administration
Article 2 – Principle of lawfulness
1. Public authorities shall act in accordance with the law. They shall not take arbitrary measures, even when exercising their discretion.
2. They shall comply with domestic law, international law and the general principles of law governing their organisation, functioning and activities.
3. They shall act in accordance with rules defining their powers and procedures laid down in their governing rules.
4. They shall exercise their powers only if the established facts and the applicable law entitle them to do so and solely for the purpose for which they have been conferred.
Article 3 – Principle of equality
1. Public authorities shall act in accordance with the principle of equality.
2. They shall treat private persons who are in the same situation in the same way. They shall not discriminate between private persons on grounds such as sex, ethnic origin, religious belief or other conviction. Any difference in treatment shall be objectively justified.
Article 4 – Principle of impartiality
1. Public authorities shall act in accordance with the principle of impartiality.
2. They shall act objectively, having regard to relevant matters only.
3. They shall not act in a biased manner.
4. They shall ensure that their public officials carry out their duties in an impartial manner, irrespective of their personal beliefs and interests.
Article 5 – Principle of proportionality
1. Public authorities shall act in accordance with the principle of proportionality.
2. They shall impose measures affecting the rights or interests of private persons only where necessary and to the extent required to achieve the aim pursued.
3. When exercising their discretion, they shall maintain a proper balance between any adverse effects which their decision has on the rights or interests of private persons and the purpose they pursue. Any measures taken by them shall not be excessive.
Article 6 – Principle of legal certainty
1. Public authorities shall act in accordance with the principle of legal certainty.
2. They may not take any retroactive measures except in legally justified circumstances.
3. They shall not interfere with vested rights and final legal situations except where it is imperatively necessary in the public interest.
4. It may be necessary in certain cases, in particular where new obligations are imposed, to provide for transitional provisions or to allow a reasonable time for the entry into force of these obligations.
Article 7 – Principle of taking action within a reasonable time limit
Public authorities shall act and perform their duties within a reasonable time.
Article 8 – Principle of participation
Unless action needs to be taken urgently, public authorities shall provide private persons with the opportunity through appropriate means to participate in the preparation and implementation of administrative decisions which affect their rights or interests.
Article 9 – Principle of respect for privacy
1. Public authorities shall have respect for privacy, particularly when processing personal data.
2. When public authorities are authorised to process personal data or files, particularly by electronic means, they shall take all necessary measures to guarantee privacy.
3. The rules relating to personal data protection, notably as regards the right to have access to personal data and secure the rectification or removal of any data that is inaccurate or shall not have been recorded, shall apply to personal data processed by public authorities.
Article 10 – Principle of transparency
1. Public authorities shall act in accordance with the principle of transparency.
2. They shall ensure that private persons are informed, by appropriate means, of their actions and decisions which may include the publication of official documents.
3. They shall respect the rights of access to official documents according to the rules relating to personal data protection.
4. The principle of transparency does not prejudice secrets protected by law.
Rules governing administrative decisions
Article 11 – Definitions
1. For the purposes of this code, “administrative decisions” shall mean regulatory or non-regulatory decisions taken by public authorities when exercising the prerogatives of public power.
2. Regulatory decisions consist of generally applicable rules.
3. Non-regulatory decisions may be individual or otherwise. Individual decisions are those addressed solely to one or more individuals.
Article 12 – Initiation of administrative decisions
Administrative decisions can be taken by public authorities either on their own initiative or upon request from private persons.
Article 13 – Requests from private persons
1. Private persons have the right to request public authorities to take individual decisions which lie within their competence.
2. Decisions in response to requests to public authorities shall be taken within a reasonable time which can be defined by law. Remedies for cases where no such decision has been taken should be foreseen.
3. When such a request is made to an authority lacking the relevant competence, the recipient shall forward it to the competent authority where possible and advise the applicant that it has done so.
4. All requests for individual decisions made to public authorities shall be acknowledged with an indication of the expected time within which the decision will be taken, and of the legal remedies that exist if the decision is not taken. An acknowledgement in writing may be dispensed with where public authorities respond promptly with a decision.
Article 14 – Right of private persons to be heard with regard to individual decisions
If a public authority intends to take an individual decision that will directly and adversely affect the rights of private persons, and provided that an opportunity to express their views has not been given, such persons shall, unless this is manifestly unnecessary, have an opportunity to express their views within a reasonable time and in the manner provided for by national law, and if necessary with the assistance of a person of their choice.
Article 15 – Right of private persons to be involved in certain non-regulatory decisions
1. If a public authority proposes to take a non-regulatory decision that may affect an indeterminate number of people, it shall set out procedures allowing for their participation in the decision-making process, such as written observations, hearings, representation in an advisory body of the competent authority, consultations and public enquiries.
2. Those concerned in these procedures shall be clearly informed of the proposals in question and given the opportunity to express their views fully. The proceedings shall take place within a reasonable time.
Article 16 – Contribution of private persons to costs for administrative decisions
Costs, if payable by private persons to public authorities in respect of administrative decisions, shall be fair and reasonable.
Article 17 – Form of administrative decisions
1. Administrative decisions shall be phrased in a simple, clear and understandable manner.
2. Appropriate reasons shall be given for any individual decision taken, stating the legal and factual grounds on which the decision was taken, at least in cases where they affect individual rights.
Article 18 – Publication of administrative decisions
1. Administrative decisions shall be published in order to allow those concerned by these decisions to have an exact and comprehensive knowledge of them. Publication may be through personal notification or it may be general in nature.
2. Those concerned by individual decisions shall be personally notified except in exceptional circumstances where only general publication methods are possible. In all cases, appeal procedures including time limits shall be indicated.
Article 19 – Entry into force of administrative decisions
1. Administrative decisions shall not take effect retroactively with regard to a date prior to their adoption or publication, except in legally justified circumstances.
2. Except in urgent cases, administrative decisions shall not be operative until they have been appropriately published.
Article 20 – Execution of administrative decisions
1. Public authorities shall be responsible for the execution of administrative decisions falling within their competence.
2. An appropriate system of administrative or criminal penalties shall, in principle, be established to ensure that private persons comply with the decisions of the public authorities.
3. Public authorities shall allow private persons a reasonable time to perform the obligations imposed on them, except in urgent cases where they shall duly state the reasons for this.
4. Enforced execution by public authorities shall be expressly prescribed by law. Private persons subject to the execution of a decision are informed of the procedure and of the reasons for it. Enforced execution measures shall be proportionate.
Article 21 – Changes to individual administrative decisions
Public authorities can amend or withdraw individual administrative decisions in the public interest if necessary, but, in doing so, they should have regard to the rights and interests of private persons.
Article 22 – Appeals against administrative decisions
1. Private persons shall be entitled to seek, directly or by way of exception, a judicial review of an administrative decision which directly affects their rights and interests.
2. Administrative appeals, prior to a judicial review, shall, in principle, be possible. They may, in certain cases, be compulsory. They may concern an appeal on merits or an appeal on the legality of an administrative decision.
3. Private persons shall not suffer any prejudice from public authorities for appealing against an administrative decision.
Article 23 – Compensation
1. Public authorities shall provide a remedy to private persons who suffer damages through unlawful administrative decisions or negligence on the part of the administration or its officials.
2. Before bringing actions for compensation against public authorities in the courts, private persons may first be required to submit their case to the authorities concerned.
3. Court orders against public authorities to provide compensation for damages suffered shall be executed within a reasonable time.
4. It shall be possible, where appropriate, for public authorities or private persons adversely affected to issue legal proceedings against public officials in their personal capacity.
DRAFT RECOMMENDATION REC (…) OF THE COMMITTEE OF MINISTERS TO MEMBER STATES ON LEGAL SOLUTIONS TO DEBT PROBLEMS
The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Acknowledging that member states have entered an era where the use of credit has become an essential part of their economies;
Taking into account that the development of the consumer credit market can be beneficial both for the economic growth of member states and for the well-being of individuals;
Noting that although in the majority of cases credit contracts operate without difficulty, increased lending leads to increased debt problems and, in some cases, to over-indebtedness;
Bearing in mind that over-indebtedness of individuals and families has become an increasingly widespread problem in most member states, which frequently leads to social and health problems and social exclusion of families and may put children’s basic needs at risk;
Stressing the responsibility of member states for the effects of their economic and social policies;
Agreeing upon the utmost importance of political, legal and practical measures which the governments of member states should adopt in order to prevent and solve debt problems effectively;
Underlining the need to strike a balance between the legitimate interests of creditors and the basic rights of debtors;
Taking into account Resolution No. 1 on seeking legal solutions to debt problems in a credit society, adopted by the European Ministers of Justice at their 26th Conference (2005);
Recalling Recommendation Rec(2003)17 of the Committee of Ministers to member states on enforcement;
Bearing in mind other work carried out at a European level concerning the settlement of disputes between creditors and debtors,
Recommends that the governments of the member states, when formulating their internal legislation and practice and when seeking legal solutions to debt problems and to over-indebtedness:
1. note that for the purposes of this recommendation over-indebtedness means, but is not limited to, the situation where the debt burden of an individual or a family manifestly and/or on a long-term basis exceeds the repayment capacity;
2. aim to prevent over-indebtedness of individuals and families in particular by:
a. collecting information and statistics on debt problems and analysing the situation of over-indebted individuals and families in their countries;
b. introducing and developing financial literacy on the rights of consumers in general, and budget management in particular, as part of the national education system;
c. providing effective access to impartial financial, social and legal advice and counselling to those who have problems with and questions about their debts;
d. providing the necessary measures and regulations to ensure responsible practices during all phases of the credit relationship including marketing of credit as well as the collection and use of credit data and other financial information;
e. safeguarding the rights of the guarantors to information as well as preventing the irresponsible use of guarantees;
3. take appropriate measures to alleviate the effects of the recovery of debt in particular by:
a. ensuring an efficient and unbiased enforcement system as well as appropriate legislation, which defines the powers of enforcement agents;
b. respecting the debtor’s rights and human dignity at all stages of debt collection and debt enforcement procedures without infringing the rights of creditors;
c. introducing enforcement alleviation procedures, including the protection of the essential assets of the debtor and garnishment of part of his/her revenue, which take into account the need to strike a balance between the protection of at least the basic living needs of the debtor and his/her family and the efficiency of debt recovery;
d. ensuring the rights of the guarantors of the debtor at all stages of debt enforcement procedure, including, as far as possible, the right to treatment equal to that accorded to the debtor ;
e. facilitating the recognition and enforcement in member states of payment judgments and repayment plans emanating from the competent authorities in other member states;
4. introduce mechanisms necessary to facilitate rehabilitation of over-indebted individuals and families and their reintegration into society in particular by:
a. ensuring that debtors have effective access to impartial advice and to debt adjustment in accordance with the criteria established by national law;
b. ensuring that payment plans in debt adjustment are reasonable, in accordance with national practices, both in repayment obligations and in duration;
c. ensuring that debt adjustment covers all debts, excluding only those covered by special waivers provided under national law;
d. establishing mechanisms for extra-judicial settlements and encouraging such settlements between the debtor and creditor;
e. effectively limiting the means of creditors to hinder debt settlements unreasonably;
f. encouraging effective financial and social inclusion of over-indebted individuals and families, in particular by promoting their access to the labour market;
g. encouraging the active participation of the debtor in debt settlement and, where necessary, counselling and advice following the debt settlement;
h. allowing partial or total discharge of the debts of individuals and, where applicable, families in cases of over-indebtedness where other measures have proved to be ineffective, with a view to providing them with a new opportunity for engaging in economic and social activities;
5. facilitate the implementation of this recommendation in particular by:
a. setting up policies relating to debt management and to treatment of over-indebted individuals and families and ensuring uniformity of such policies;
b. ensuring effective co-operation between the competent bodies and professionals involved in the prevention of over-indebtedness, the alleviation of the effects of the recovery of debts and the rehabilitation of over-indebted individuals and families;
c. setting up debt advice, counselling and mediation mechanisms, as well as ensuring, or at least encouraging, effective participation of lending institutions and other public and private creditors in implementing national policies for debt management;
d. ensuring appropriate quality standards and impartiality of the services provided by the responsible bodies and professionals as well as effective mechanisms for controlling these standards;
e. providing easy access to information about consumer rights, which should be readily understood by the general public.
DRAFT RECOMMENDATION REC (…) OF THE COMMITTEE OF MINISTERS TO MEMBER STATES ON THE LEGAL STATUS OF NON-GOVERNMENTAL ORGANISATIONS IN EUROPE
The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Considering that the aim of the Council of Europe is to achieve greater unity between its members and that this aim may be pursued through the adoption of common rules;
Aware of the essential contribution made by non-governmental organisations (NGOs) to the development and realisation of democracy and human rights, in particular through the promotion of public awareness, participation in public life and securing the transparency and accountability of public authorities, and of the equally important contribution of NGOs to the cultural life and social well-being of democratic societies;
Taking into consideration the invaluable contribution also made by NGOs to the achievement of the aims and principles of the United Nations Charter and of the Statute of the Council of Europe;
Having regard to the Declaration and Action Plan adopted at the Third Summit of Heads of State and Government of the Council of Europe (Warsaw, 16-17 May 2005);
Noting that the contributions of NGOs are made through an extremely diverse body of activities which can range from acting as a vehicle for communication between different segments of society and public authorities, through the advocacy of changes in law and public policy, the provision of assistance to those in need, the elaboration of technical and professional standards, the monitoring of compliance with existing obligations under national and international law, and on to the provision of a means of personal fulfilment and of pursuing, promoting and defending interests shared with others;
Bearing in mind that the existence of many NGOs is a manifestation of the right of their members to freedom of association under Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms and of their host country’s adherence to principles of democratic pluralism;
Having regard to Article 5 of the European Social Charter (revised) (ETS No. 163), Articles 3, 7 and 8 of the Framework Convention for the Protection of National Minorities (ETS No. 157) and Article 3 of the Convention on the Participation of Foreigners in Public Life at Local Level (ETS No. 144);
Recognising that the operation of NGOs entails responsibilities as well as rights;
Considering that the best means of ensuring ethical, responsible conduct by NGOs is to promote self-regulation;
Taking into consideration the case law of the European Court of Human Rights and the views of United Nations human rights treaty bodies;
Taking into account the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, United Nations General Assembly Resolution A/RES/53/144;
Drawing upon the Fundamental Principles on the Status of Non-governmental Organisations in Europe;
Having regard to the European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations (ETS No. 124) (hereinafter Convention No. 124) and to the desirability of enlarging the number of its contracting parties;
Recommends that the governments of member states
– be guided in their legislation, policies and practice by the minimum standards set out in this recommendation;
– take account of these standards in monitoring the commitments they have made;
– ensure that this recommendation and the accompanying explanatory memorandum are translated and disseminated as widely as possible to NGOs and the public in general, as well as to parliamentarians, relevant public authorities and educational institutions, and used for the training of officials.
I. Basic principles
1. For the purpose of this recommendation, NGOs are voluntary self-governing bodies or organisations established to pursue the essentially non-profit-making objectives of their founders or members. They do not include political parties.
2. NGOs encompass bodies or organisations established both by individual persons (natural or legal) and by groups of such persons. They can be either membership or non-membership based.
3. NGOs can be either informal bodies or organisations or ones which have legal personality.
4. NGOs can be national or international in their composition and sphere of operation.
5. NGOs should enjoy the right to freedom of expression and all other universally and regionally guaranteed rights and freedoms applicable to them.
6. NGOs should not be subject to direction by public authorities.
7. NGOs with legal personality should have the same capacities as are generally enjoyed by other legal persons and should be subject to the administrative, civil and criminal law obligations and sanctions generally applicable to those legal persons.
8. The legal and fiscal framework applicable to NGOs should encourage their establishment and continued operation.
9. NGOs should not distribute any profits which might arise from their activities to their members or founders but can use them for the pursuit of their objectives.
10. Acts or omissions by public authorities affecting an NGO should be subject to administrative review and be open to challenge by the NGO in an independent and impartial court with full jurisdiction.
11. NGOs should be free to pursue their objectives, provided that both the objectives and the means employed are consistent with the requirements of a democratic society.
12. NGOs should be free to undertake research, education and advocacy on issues of public debate, regardless of whether the position taken is in accord with government policy or requires a change in the law.
13. NGOs should be free to support a particular candidate or party in an election or a referendum provided that they are transparent in declaring their motivation. Any such support should also be subject to legislation on the funding of elections and political parties.
14. NGOs should be free to engage in any lawful economic, business or commercial activities in order to support their not-for-profit activities without any special authorisation being required, but subject to any licensing or regulatory requirements generally applicable to the activities concerned.
15. NGOs should be free to pursue their objectives through membership of associations, federations and confederations of NGOs, whether national or international.
III. Formation and membership
16. Any person, be it legal or natural, national or non-national, or group of such persons, should be free to establish an NGO and, in the case of non-membership-based NGOs, should be able to do so by way of gift or bequest.
17. Two or more persons should be able to establish a membership-based NGO but a higher number can be required where legal personality is to be acquired, so long as this number is not set at a level that discourages establishment.
18. NGOs with legal personality should normally have statutes, comprising the constitutive instrument or instrument of incorporation and, where applicable, any other document setting out the conditions under which they operate.
19. The statutes of an NGO with legal personality should generally specify:
a. its name,
b. its objectives,
c. its powers,
d. the highest governing body,
e. the frequency of meetings of this body,
f. the procedure by which such meetings are to be convened,
g. the way in which this body is to approve financial and other reports,
h. the procedure for changing the statutes and dissolving the organisation or merging it with another NGO.
20. The highest governing body of a membership-based NGO should be the membership and its agreement should be required for any change in the statutes. For other NGOs the highest governing body should be the one specified in the statutes.
21. No person should be required by law or otherwise compelled to join an NGO, other than a body or organisation established by law to regulate a profession in those states which treat such an entity as an NGO.
22. The ability of any person, be it natural or legal, national or non-national, to join membership-based NGOs should not be unduly restricted by law and, subject to the prohibition on unjustified discrimination, should be determined primarily by the statutes of the NGOs concerned.
23. Members of NGOs should be protected from expulsion contrary to their statutes.
24. Persons belonging to an NGO should not be subject to any sanction because of their membership. This should not preclude such membership being found incompatible with a particular position or employment.
25. Membership-based NGOs should be free to allow non-members to participate in their activities.
IV. Legal personality
26. The legal personality of NGOs should be clearly distinct from that of their members or founders.
27. An NGO created through the merger of two or more NGOs should succeed to their rights and liabilities.
B. Acquisition of legal personality
28. The rules governing the acquisition of legal personality should, where this is not an automatic consequence of the establishment of an NGO, be objectively framed and should not be subject to the exercise of a free discretion by the relevant authority.
29. The rules for acquiring legal personality should be widely published and the process involved should be easy to understand and satisfy.
30. Persons can be disqualified from forming NGOs with legal personality following a conviction for an offence that has demonstrated that they are unfit to form one. Such a disqualification should be proportionate in scope and duration.
31. Applications in respect of membership-based NGOs should only entail the filing of their statutes, their addresses and the names of their founders, directors, officers and legal representatives. In the case of non-membership-based NGOs there can also be a requirement of proof that the financial means to accomplish their objectives are available.
32. Legal personality for membership-based NGOs should only be sought after a resolution approving this step has been passed by a meeting to which all the members had been invited.
33. Fees can be charged for an application for legal personality but they should not be set at a level that discourages applications.
34. Legal personality should only be refused where there has been a failure to submit all the clearly prescribed documents required, a name has been used that is patently misleading or is not adequately distinguishable from that of an existing natural or legal person in the state concerned or there is an objective in the statutes which is clearly inconsistent with the requirements of a democratic society.
35. Any evaluation of the acceptability of the objectives of NGOs seeking legal personality should be well informed and respectful of the notion of political pluralism. It should not be driven by prejudices.
36. The body responsible for granting legal personality should act independently and impartially in its decision making. Such a body should have sufficient, appropriately qualified staff for the performance of its functions.
37. A reasonable time limit should be prescribed for taking a decision to grant or refuse legal personality.
38. All decisions should be communicated to the applicant and any refusal should include written reasons and be subject to appeal to an independent and impartial court.
39. Decisions on qualification for financial or other benefits to be accorded to an NGO should be taken independently from those concerned with its acquisition of legal personality and preferably by a different body.
40. A record of the grant of legal personality to NGOs, where this is not an automatic consequence of the establishment of an NGO, should be readily accessible to the public.
41. NGOs should not be required to renew their legal personality on a periodic basis.
C. Branches; changes to statutes
42. NGOs should not require any authorisation to establish branches, whether within the country or (subject to paragraph 45 below) abroad.
43. NGOs should not require approval by a public authority for a subsequent change in their statutes, unless this affects their name or objectives. The grant of such approval should be governed by the same process as that for the acquisition of legal personality but such a change should not entail the NGO concerned being required to establish itself as a new entity. There can be a requirement to notify the relevant authority of other amendments to their statutes before these can come into effect.
D. Termination of legal personality
44. The legal personality of NGOs can only be terminated pursuant to the voluntary act of their members – or in the case of non-membership-based NGOs, its governing body – or in the event of bankruptcy, prolonged inactivity or serious misconduct.
E. Foreign NGOs
45. Without prejudice to applicability of the articles laid down in Convention No. 124 for those states that have ratified that convention, foreign NGOs can be required to obtain approval, in a manner consistent with the provisions of paragraphs 28 to 31 and 33 to 39 above, to operate in the host country. They should not have to establish a new and separate entity for this purpose. Approval to operate can only be withdrawn in the event of bankruptcy, prolonged inactivity or serious misconduct.
46. The persons responsible for the management of membership-based NGOs should be elected or designated by the highest governing body or by an organ to which it has delegated this task. The management of non-membership-based NGOs should be appointed in accordance with their statutes.
47. NGOs should ensure that their management and decision-making bodies are in accordance with their statutes but they are otherwise free to determine the arrangements for pursuing their objectives. In particular, NGOs should not need any authorisation from a public authority in order to change their internal structure or rules.
48. The appointment, election or replacement of officers, and, subject to paragraphs 22 and 23 above, the admission or exclusion of members should be a matter for the NGOs concerned. Persons may, however, be disqualified from acting as an officer of an NGO following conviction for an offence that has demonstrated that they are unfit for such responsibilities. Such a disqualification should be proportionate in scope and duration.
49. NGOs should not be subject to any specific limitation on non-nationals being on their management or staff.
VI. Fundraising, property and public support
50. NGOs should be free to solicit and receive funding – cash or in-kind donations – not only from public bodies in their own state but also from institutional or individual donors, another state or multilateral agencies, subject only to the laws generally applicable to customs, foreign exchange and money laundering and those on the funding of elections and political parties.
51. NGOs with legal personality should have access to banking facilities.
52. NGOs with legal personality should be able to sue for the redress of any harm caused to their property.
53. NGOs with legal personality can be required to act on independent advice when selling or acquiring any land, premises or other major assets where they receive any form of public support.
54. NGOs with legal personality should not utilise property acquired on a tax-exempt basis for a non-tax-exempt purpose.
55. NGOs with legal personality can use their property to pay their staff and can also reimburse all staff and volunteers acting on their behalf for reasonable expenses thereby incurred.
56. NGOs with legal personality can designate a successor to receive their property in the event of their termination, but only after their liabilities have been cleared and any rights of donors to repayment have been honoured. However, in the event of no successor being designated or the NGO concerned having recently benefited from public funding or other form of support, it can be required that the property either be transferred to another NGO or legal person that most nearly conforms to its objectives or be applied towards them by the state. Moreover the state can be the successor where either the objectives or the means used by the NGO to achieve those objectives have been found to be inadmissible.
C. Public support
57. NGOs should be assisted in the pursuit of their objectives through public funding and other forms of support, such as exemption from income and other taxes or duties on membership fees, funds and goods received from donors or governmental and international agencies, income from investments, rent, royalties, economic activities and property transactions, as well as incentives for donations through income tax deductions or credits.
58. Any form of public support for NGOs should be governed by clear and objective criteria.
59. The nature and beneficiaries of the activities undertaken by an NGO can be relevant considerations in deciding whether or not to grant it any form of public support.
60. The grant of public support can also be contingent on an NGO falling into a particular category or regime defined by law or having a particular legal form.
61. A material change in the statutes or activities of an NGO can lead to the alteration or termination of any grant of public support.
62. NGOs which have been granted any form of public support can be required each year to submit reports on their accounts and an overview of their activities to a designated supervising body.
63. NGOs which have been granted any form of public support can be required to make known the proportion of their funds used for fundraising and administration.
64. All reporting should be subject to a duty to respect the rights of donors, beneficiaries and staff, as well as the right to protect legitimate business confidentiality.
65. NGOs which have been granted any form of public support can be required to have their accounts audited by an institution or person independent of their management.
66. Foreign NGOs should be subject to the requirements in paragraphs 62 to 65 above only in respect of their activities in the host country.
67. The activities of NGOs should be presumed to be lawful in the absence of contrary evidence.
68. NGOs can be required to submit their books, records and activities to inspection by a supervising agency where there has been a failure to comply with reporting requirements or where there are reasonable grounds to suspect that serious breaches of the law have occurred or are imminent.
69. NGOs should not be subject to search and seizure without objective grounds for taking such measures and appropriate judicial authorisation.
70. No external intervention in the running of NGOs should take place unless a serious breach of the legal requirements applicable to NGOs has been established or is reasonably believed to be imminent.
71. NGOs should generally be able to request suspension of any administrative measure taken in respect of them. Refusal of a request for suspension should be subject to prompt judicial challenge.
72. In most instances, the appropriate sanction against NGOs for breach of the legal requirements applicable to them (including those concerning the acquisition of legal personality) should merely be the requirement to rectify their affairs and/or the imposition of an administrative, civil or criminal penalty on them and/or any individuals directly responsible. Penalties should be based on the law in force and observe the principle of proportionality.
73. Foreign NGOs should be subject to the provisions in paragraphs 68 to 72 above only in respect of their activities in the host country.
74. The termination of an NGO or, in the case of a foreign NGO, the withdrawal of its approval to operate should only be ordered by a court where there is compelling evidence that the grounds specified in paragraphs 44 and 45 above have been met. Such an order should be subject to prompt appeal.
75. The officers, directors and staff of an NGO with legal personality should not be personally liable for its debts, liabilities and obligations. However, they can be made liable to the NGO, third parties or all of them for professional misconduct or neglect of duties.
VIII. Participation in decision making
76. Governmental and quasi-governmental mechanisms at all levels should ensure the effective participation of NGOs without discrimination in dialogue and consultation on public policy objectives and decisions. Such participation should ensure the free expression of the diversity of people’s opinions as to the functioning of society. This participation and co-operation should be facilitated by ensuring appropriate disclosure or access to official information.
77. NGOs should be consulted during the drafting of primary and secondary legislation which affects their status, financing or spheres of operation.
OPINION ON PARLIAMENTARY ASSEMBLY RECOMMENDATION 1778 (2007) CHILD VICTIMS: STAMPING OUT ALL FORMS OF VIOLENCE, EXPLOITATION AND ABUSE
1. Following the adoption by the Parliamentary Assembly of Recommendation 1778 (2007) “Child victims: stamping out all forms of violence, exploitation and abuse”, the Committee of Ministers decided to communicate it to the European Committee on Legal Co-operation (CDCJ), for information and possible comments by 30 April 2007. The CDCJ examined the Recommendation and decided to submit to the Committee of Ministers its comments relating to those provisions, which in its view are of concern to the CDCJ.
2. The CDCJ welcomes the call of the Parliamentary Assembly and of the Committee of Ministers to member states to sign and ratify international and European legal instruments relating to the protection of children and in particular supports doing so in respect of the Council of Europe Convention on Contact concerning Children (ETS No.192) which is currently signed by 13 Council of Europe member states without ratification, and is in force since 1 September 2005 in respect of 4 member states.
3. The CDCJ welcomes the importance attached by the Parliamentary Assembly to the fight against all forms of violence, exploitation or abuse of children and draws the attention of the Committee of Ministers to a number of legal instruments adopted by the Council of Europe, in particular the European Convention on the Exercise of Children's Rights (ETS No.160). This Convention aims at protecting the best interests of children by providing a number of procedural measures to allow children to exercise their rights, and to protect them from cruel or degrading treatment.
4. The latter Convention also facilitates the implementation of the United Nations Convention on the Rights of the Child. At present 11 Council of Europe member states are parties to the European Convention, while another 13 affixed their signatures, not followed by ratifications. The CDCJ would like to stress the need for inviting member states to sign and ratify this Convention as well, if they have not already done so.
5. The CDCJ notes that at their 27th Conference the European Ministers of Justice adopted Resolution No.1 on victims of crime, whereby they “invite the Committee of Ministers to entrust the European Committee on Legal Co-operation (CDCJ), in co-operation with other competent bodies of the Council of Europe, to study the question of civil, administrative and other remedies to be made available to victims of crime with a view to reducing the risk of secondary victimisation and contributing to their rehabilitation from crime suffered and adequate compensation for damage sustained”. In this Resolution, particular attention is paid to the needs of categories of particularly vulnerable victims, including children, when seeking for civil, administrative or other remedies designed to protect their interests, in particular provision of information on procedures, simplified procedures, legal aid and advice before, during and after completion of civil, administrative or other procedures.
6. In compliance with this Resolution the CDCJ, through the Group of specialists on remedies for crime victims (CJ-S-VICT), is planning to analyse legislation and practices of member states concerning civil, administrative and other remedies available to victims of crime and identify good practices inter alia which meet the specific needs of vulnerable victims such as children with a view to making proposals to the Committee of Ministers for possible follow-up action.
7. In the view of the CDCJ, note should also be taken of the ongoing work within the Council of Europe as regards preparation of the Convention on the protection of children against sexual exploitation and sexual abuse. Completion of this work should significantly contribute to the regional and international fight against violence, exploitation and abuse of children.
8. Despite the fact that the CDCJ fully supports the objectives put forward by the Parliamentary Assembly in its Recommendation 1778 (2007), and considering the ongoing work in this field within the Council of Europe, it takes the view that it is premature at this stage to initiate drafting a new, legally binding instrument in this field.
9. However, the feasibility of elaborating an appropriate instrument, containing specific measures to facilitate the implementation of the United Nations Convention on the Right of the Child could be examined.
10. The CDCJ would like to bring to the attention of the Committee of Ministers that the theme of the 28th Conference of the European Ministers of Justice (planned on 25-26 October in Lanzarote, Spain) will cover the issue of access to justice for vulnerable groups, including children, which could lead to future work in this field by the CDCJ and could take into account the proposal in paragraph 9 above.
REPLY OF THE CDCJ TO THE COMMITTEE OF MINISTERS CONCERNING THE JOINT OSCE-COE EXPERT WORKSHOP ON PREVENTING TERRORISM: FIGHTING INCITEMENT AND RELATED TERRORIST ACTIVITIES (VIENNA, 19-20 OCTOBER 2006)
1. At its 981st Meeting (29 November 2006) the Committee of Ministers decided to transmit to the European Committee on Legal Co operation (CDCJ) the summary of the Joint OSCE-Council of Europe Expert Workshop on Preventing Terrorism: Fighting Incitement and related Terrorist Activities (Vienna, 19-20 October 2006, asking the CDCJ to take this report into account in its work and to report back.
2. At its 82nd Plenary Meeting (26 February – 1 March 2007) the CDCJ examined the proposals to make to the Committee of Ministers in respect of the above-mentioned summary and decided to present its views to the Committee of Ministers as requested.
3. The CDCJ offered to the Committee of Ministers to contribute within the areas of its competence.
4. The CDCJ welcomes the organisation of the joint workshop between the two leading standard-setting and operational regional organisations, especially taking into account that is was the first event of its kind in the field of fight against terrorism in Europe.
5. The CDCJ draws the attention of the Committee of Ministers to the completion of the preparation of the draft Recommendation on Good Administration and its Model Code, which will contribute to enhancing the level of mutual trust between communities and public authorities at all levels, including security and law enforcement bodies, thus curbing factors that can lead to radicalisation and violent extremism in society. Therefore the CDCJ invites the Committee of Ministers to promote the standards set forth by this draft Recommendation and the Model Code, once adopted, through its political support, making it a guiding document as regards good administration in Europe.
6. The CDCJ also invites the Committee of Ministers to note that one of its priorities for 2007 is analysing the specific situation of victims of terrorism offences with respect to compensation for damage sustained and identifying good practices as regards the functioning of private and public insurance and compensation mechanisms for victims of terrorism. The CDCJ would like to note that this work forms an integral part of the Council of Europe’s comprehensive fight against terrorism and confirms that it would be able to provide detailed report and specific proposals to the Committee of Ministers upon its completion at the end of 2007.
7. The CDCJ confirms its readiness to continue working in collaboration with the CODEXTER on analysing legislation and practices of member states concerning denial of residence to persons suspected, prosecuted or convicted of terrorist offences taking into account the implications of nationality-related procedures for the residence of such persons with a view to possible preparation of an appropriate instrument setting out guidelines concerning these issues, bearing in mind the need for an effective fight against terrorism and the protection of fundamental human rights.
REPLY OF THE EUROPEAN COMMITTEE ON LEGAL COOPERATION (CDCJ) TO THE MESSAGE OF THE COMMITTEE OF MINISTERS TO COMMITTEES INVOLVED IN INTERGOVERNMENTAL COOPERATION AT THE COUNCIL OF EUROPE
The CDCJ hereby reports to the Committee of Ministers on the implementation it has given to the Warsaw Summit Action Plan adopted by the Heads of State and Government of the Council of Europe in May 2005.
This document presents the main activities implemented to date, giving results achieved, activities underway and lays down the CDCJ’s future priorities.
In 2006, the CDCJ presented its first reply to the Committee of Ministers on the implementation it had given to the Warsaw Action Plan (see Appendix 2 of document CM(2006)60). This message contained a political statement to the Committee of Ministers, which the CDCJ wishes to reiterate:
“A well-functioning and efficient system of justice is fundamental to any democracy, and civil justice is a key component. Increased trust in public institutions and judicial systems helps citizens to have confidence in their daily lives including everyday transactions. It also underpins prosperity by promoting economic activity including inward investment. Private and public law form the essential legal infrastructure in a democratic society and are of particular importance to the civil society. Properly functioning legal and administrative systems are indispensable to peace and stability in Europe.
Standard-setting covering public and private law and the functioning of judicial systems has, particularly since 1989, made a uniquely significant contribution to the development of and adherence to the principles of democracy and the rule of law in the enlarged Council of Europe. Legal instruments in the field of legal co-operation have, among other things, helped improve judicial independence, reduced delays in judicial systems, and promoted fairness and efficiency across the board. Other examples include the work in the family law field which made the interests of children the paramount concern everywhere in Europe. Work in the field of nationality has shown itself able to react appropriately to changing needs, and work in the field of data protection set a pioneering course that has been followed elsewhere.
The high standards embodied in the Council of Europe's Acquis in the area of legal co-operation should not lead to complacency. Problems continue to exist in all parts of Europe and work remains to be done. Moreover, new and changing needs arising from rapid societal changes should be addressed through the elaboration and implementation of new legal instruments and, where appropriate, adjustment of existing instruments, or by other means.”
CHAPTER I - ITEM 3 - PARAGRAPH 5
“Enhance the participation of NGOs in Council of Europe activities as an essential element of civil society's contribution to the transparency and accountability of democratic government.”
Achievements and results
A draft Recommendation on the legal status of Non-Governmental Organisations in Europe was adopted on 1 March 2007 and will be transmitted to the Committee of Ministers for adoption.
Promote new standards on the legal status of the NGOs in member States and monitor the implementation of the Recommendation on the legal status of NGOs in Europe following its expected adoption in 2007. The CDCJ will address member States with a request to provide regular information on the extent of legal and practical measures taken with a view to bringing their legislation and practice closer to the standards set forth in the Recommendation.
CHAPTER I - ITEM 3 - PARAGRAPH 9
“We will make full use of the Council of Europe’s standard-setting potential and promote implementation and further development of the Organisation’s legal instruments and mechanisms of legal co-operation, keeping in mind the conclusions of the 26th Conference of European Ministers of Justice (Helsinki, 7-8 April 2005).”
Achievements and results
In line with Resolution No. 1 of the 26th Conference of European Ministers of Justice, a draft Recommendation on Legal Solutions to Debt Problems was approved by the CDCJ on 1 March 2007 and will be submitted to the Committee of Ministers for adoption.
Follow-up will be given to the 28th Conference of European Ministers of Justice to take place in Lanzarote on 25-26 October 2007. The Conference will be devoted to “Emerging issues of access to justice for vulnerable groups, in particular migrants and asylum seekers, children, including children perpetrators of crime”.
Other standard-setting achievements and activities are presented in the present reply under Chapter I, item 4, paragraph 4.
CHAPTER I - ITEM 3 - PARAGRAPH 10
“We decide to develop the evaluation and assistance functions of the European Commission for the Efficiency of Justice (CEPEJ) and to make proper use of the opinions given by the Consultative Council of European Judges (CCJE) in order to help member states to deliver justice fairly and rapidly and to develop alternative means for the settlement of disputes.”
As a follow-up to the relevant Opinions of the Consultative Council of European Judges (CCJE) and the Action Plan of the European Commission for the Efficiency of Justice (CEPEJ) of 9 December 2005, the CDCJ has embarked on updating Recommendation R(94)12 on the independence, efficiency and role of judges. This Recommendation is at present the only text which supplements the European Convention on Human Rights and the Court’s case-law by covering the status of judges and their role in the functioning of judicial systems. This gives it a commanding position in the Council of Europe’s standard-setting system.
With a view to preparing a multilateral seminar on medical liability to take place in 2008, a group of scientific experts has been entrusted to identify the main issues at stake for Council of Europe members states in the field of medical liability, which include the burden of proof in medical liability claims, the right of patients to informed consent, and how legal disputes in the medical field can be settled more effectively.
The seminar will be organised in 2008 at the close of the plenary meeting of the CDCJ. Its aim is to address issues (as listed above) which have not already dealt with by other international organisations and to brainstorm on alternative legal solutions with respect to medical liability and of identifiying possible future work of the CDCJ in this field.
CHAPTER I - ITEM 3 - PARAGRAPH 11
“Nationality law in all its aspects, including the promotion of acquisition of citizenship, as well as family law, are focus points of the Council of Europe. The Council, as the suitable international organisation, will continue to develop its action in these fields of law.”
It should be remembered that the Council of Europe is the only European organisation dealing with standard-setting in the field of nationality.
Achievements and results
The adoption of legal instruments will be referred to in the present reply under Chapter 1, item 4, paragraph 2 of the Action Plan.
Responding to changes in society in the family law field, an independent expert produced a report for the CDCJ in which he took stock of existing instruments and made concrete proposals as to how these instruments could be updated, improved, supplemented and monitored by the CDCJ.
Furthermore three feasibility studies were conducted in 2006, namely on ‘Promoting acquisition of citizenship as a means to reduce statelessness’, ‘The nationality of the child’ and on ‘Nationality issues and denial of residence in the context of the fight against terrorism’.
A feasibility study is being carried out on improving and clarifying issues of succession and other issues relating to missing persons following events, such as terrorist attacks and natural disasters.
A second feasibility study is being conducted with a view to improving the existing Recommendation Rec(99) 4 on principles concerning the legal protection of incapable adults.
Standard-setting activities are referred to in the present reply under Chapter 1, item 4, paragraph 2.
In 2006, the CDCJ decided that its future efforts should focus on drawing up a new Council of Europe legal instrument in order to strengthen the effect and enlarge the existing rules contained in the European Convention on Nationality and Recommendation Rec(99)18 on the avoidance and reduction of statelessness. This would include reinforcing the legal provisions with respect to: statelessness of children both at and after birth, including in cases of adoption; facilitating the naturalisation of stateless persons, including application of the residence criterion; statelessness resulting from the renunciation or deprivation of nationality; statelessness resulting from the application of other nationality rules; extending the definition of statelessness, including de facto statelessness.
CHAPTER I - ITEM 4 - PARAGRAPH 2
“We will continue our common efforts to ensure strict compliance with the commitments of member states to the common standards to which they have subscribed. Standard-setting in the field of justice and other relevant areas of law as well as non-discriminatory monitoring processes should continue to be used to help member states address the problems and develop their legal systems. Monitoring must, as necessary, be accompanied by Council of Europe assistance and technical support. In this context, we encourage continued co-operation in the training of judges and law enforcement officials.”
The work of the CDCJ and its subordinate bodies covers a wide range of public and private law issues. Work topics are chosen on the basis of their relevance and significance for member states and in co-ordination with other Council of Europe intergovernmental bodies, paying due regard to the work of other European and international organisations.
Various provisions of the 1967 European Convention on Adoption of Children were out of date and in conflict with the case-law of the European Court of Human Rights: a new European Convention on Adoption of Children (revised) was therefore drafted and subsequently approved by the CDCJ on 1 March 2007. It will be submitted to the Committee of Ministers for adoption.
A draft Recommendation on good administration, containing a model code of good administration, was approved by the CDCJ on 1 March 2007 and will be transmitted to the Committee of Ministers for adoption. The model code aims both at raising awareness amongst public officials as to the importance of respecting the interests of individuals and at guiding individuals to enable them to better exercise their rights.
In 2006, the Committee of Ministers adopted the Convention on the Avoidance of Statelessness in relation to State Succession (CETS No. 200) which was opened for signature on 1 May 2006.
Another ongoing standard-setting activity in the field of civil and administrative law addresses remedies for victims of crime. This is a direct follow-up to Resolu tion No. 1 on ‘Victims of Crime’ adopted at the 27th Conference of European Ministers of Justice (Yerevan, Armenia, 12613 October 2006).
The future work of the CDCJ will be two-fold and consist of the drawing up of new legal instruments and the monitoring and updating of existing instruments in the field of family law, namely an instrument on the legal status of incapable adults. Another one on the legal status of missing persons, presumption of death and commorientes in the context of succession following, in particular, terrorist attacks and natural disasters will be prepared.
Good administration and good governance will be promoted through evaluating the implementation of the Recommendation on Good Administration and its Model Code on Good Administration in particular by preparing a Guide of best practices for implementating this new Recommendation. A legal instrument on administrative review as one of the means of protecting human rights and on ways of access to justice, including legal aid will be prepared.
In the field of family law the new European Convention on the Adoption of Children (revised) will be promoted.
The thematic monitoring exercise of the CDCJ could be pursued in fields such as administrative law, nationality, refugees and asylum seekers. The development of the case-law of the European Court of Human Rights has already called for the review of some of the legal instruments in the field of family law, and is reflected in the terms of reference of the CJ-FA.
CHAPTER I - ITEM 4 - PARAGRAPH 4
“To this end, the Council of Europe, in co-operation with the European Union, will continue to promote the exchange of good practices as far as free movement of persons is concerned, with a view to further improving contacts and exchanges between Europeans throughout the continent.”
The CDCJ is aware that the cross-border movement of persons fosters unity amongst Council of Europe member states and facilitates the daily lives of its citizens. Any activity in this field will have to be conducted in close co-operation with the European Union.
In reply to a request by the Committee of Ministers, the CDCJ submitted a Report on Good Practices relating to the movement of persons between the Council of Europe member states in December 2004. The Committee of Ministers took note of this Report and invited member states to disseminate it to their competent authorities in the field of visas, migration and border control. In addition, upon the Committee of Ministers’ instructions, the Secretary General transmitted this document to the European Commission and the Council of the European Union.
To update its Report on "Good Practices relating to the movement of persons between the Council of Europe member states" (2004).
CHAPTER II - ITEM 1 - COMBATING TERRORISM
“We strongly condemn terrorism, which constitutes a threat and major challenge to our societies. It requires a firm, united response from Europe as an integral part of the worldwide anti-terrorist efforts under the leadership of the United Nations. We welcome the new Council of Europe Convention on the Prevention of Terrorism opened for signature during the Summit and draw attention to other instruments and documents that the Council of Europe has drawn up so far to combat terrorism. We call on all member states to respect human rights and to protect victims when combating this scourge, in accordance with the guidelines drawn up by the Council of Europe in 2002 and 2005 respectively.
We will identify other targeted measures to combat terrorism and ensure close co-operation and coordination of common anti-terrorist efforts with other international organisations, in particular the United Nations”.
In 2006, a report was produced giving an overview of existing insurance schemes, public and private, to cover terrorism-related damages with a view to evaluating the need for a new recommendation.
In co-operation with the Committee of Experts on Terrorism (CODEXTER) the CDCJ identified one particular area in which it could contribute to the Council of Europe’s action in the fight against terrorism. This activity consists of an analysis of the specific situation of victims of terrorism offences with respect to compensation for damage sustained and an identification of good practices as regards the functioning of private and public insurance and compensation mechanisms for victims of terrorism. This activity is another follow-up to the Resolution No. 1 of the 27th Conference of European Ministers of Justice.
Note 1 This document has been classified restricted at the date of issue. Unless the Committee of Ministers decides otherwise, it will be declassified according to the rules set out in Resolution Res(2001)6 on access to Council of Europe documents.
2 Secretariat note: the Committee of Ministers decided at its 993rd meeting on 11 April 2007, to transmit to the Parliamentary Assembly of the Council of Europe the draft European Convention on the adoption of children (revised), as it appears in document CM(2007)44, for opinion, and the Explanatory Report to the said Convention, for information (document CM(2007)44 add).
Note 3 Secretariat note: the Committee of Ministers agreed, at its 985th meeting on 31 January 2007, to communicate this Recommendation notably to the European Committee on Legal Co-operation (CDCJ) for information and possible comments by 30 April 2007. On 30 April 2007, the CDCJ sent to the Committee of Ministers the opinion it adopted at its 82nd Plenary Meeting on this Recommendation.
Note 4 Namely, the Committee of Experts on Family Law (CJ-FA), the Project Group on Administrative Law (CJ-DA), the Group of Specialists on the independence, efficiency and role of judges (CJ-S-JUST), the Group of scientific experts on medical liability (CJ-S-MED) and the Group of specialists on remedies for crime victims (CJ-S-VICT).
Note 5 Namely, the European Commission for the Efficiency of Justice (CEPEJ), the Consultative Council of European Judges (CCJE), the Committee of Experts on Terrorism (CODEXTER), the Consultative Committee of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (T-PD), the Standing Committee on the European Convention on the Exercise of Children's Rights (T-ED), the Convention Committee on the Custody Convention (T-CC), the Ad hoc Committee on e-democracy (CAHDE), the Steering Committee for Human Rights (CDDH) and its subordinate bodies and the European Committee on Migration (CDMG).