2008cm128

Ministers’ Deputies
CM Documents

CM(2008)128 2 September 20081
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1037 Meeting, 8 October 2008
10 Legal questions


10.3 European Committee on Crime Problems (CDPC)

a. Abridged Report of the 57th Plenary Meeting (Strasbourg, 2–6 June 2008)

b. Draft Recommendation CM/Rec(2008) … of the Committee of Ministers to member states on the European Rules for Juvenile Offenders subject to Sanctions or Measures
c. Draft revised ad hoc terms of reference of the Council for Penological Co-operation (PC-CP) relating to probation and aftercare services in the European criminal justice systems

d. Draft revised terms of reference of the Committee of Experts on the Operation of European Conventions on Co-Operation in Criminal Matters (PC-OC)
e. Draft revised terms of reference of the Council for Penological Co-operation (PC-CP)
f. Draft revised terms of reference of the Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the financing of terrorism (MONEYVAL)

Item prepared by the GR-J on 23 September 2008

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BRIEF FOREWORD

1. The European Committee on Crime Problems (CDPC) met in Strasbourg from 2 to 6 June 2008. The list of participants can be obtained from the Directorate General of Human Rights and Legal Affairs. The agenda appears in Appendix 1.

ITEMS SUBMITTED TO THE COMMITTEE OF MINISTERS FOR DECISION

2. The CDPC invited the Committee of Ministers:

a. to adopt the draft Recommendation on the European Rules for Juvenile Offenders subject to Sanctions or Measures (see Appendix 2), and to take note of the Commentary on the draft Recommendation (see Addendum 1);

b. to approve the draft revised terms of reference of the Group of Specialists on Counterfeit Pharmaceutical Products (PC-S-CP), which will allow the Group to draft a preliminary draft Convention against counterfeiting of medical products and similar crimes involving threats to public health2;

c. to approve the draft terms of reference of the Ad hoc Committee on counterfeiting of medical products and similar crimes involving threats to public health (PC-ISP), a Committee of Experts with the full participation of all Council of Europe member states, entrusted with the task of negotiating and finalising the draft Convention on the basis of the preliminary draft Convention prepared by the PC-S-CP3;

d. to approve the draft revised ad hoc terms of reference of the PC-CP relating to probation and aftercare services in the European criminal justice systems (see Appendix 3 to this report);

e. to approve the draft revised terms of reference of the PC-OC, PC-CP and MONEYVAL (see Appendices 4, 5 and 6 to this report).

ITEMS SUBMITTED TO THE COMMITTEE OF MINISTERS FOR INFORMATION

3. The CDPC invited the Committee of Ministers to note:

a. that, having examined the results of the three meetings of the PC-S-CP, the CDPC took note of the final report of the PC-S-CP and expressed its satisfaction with the quality of this report;

b. the feasibility study of the CDPC for a convention against domestic violence, and the opinion of the
EG-TFV on this study
4, as well as a document prepared by the Secretariat summarising the results of the discussions on the necessity of drafting a Council of Europe convention in this field (see Addenda 2 and 3 to this report);

c. as regards Resolution No. 1 on access to justice for migrants and asylum seekers adopted by the Ministers of Justice in Lanzarote in October 2007, that the CDPC instructed the PC-OC to continue dealing with this issue and inform the CDPC Bureau on further developments;

d. as regards Resolution No. 2 on child-friendly justice adopted by the Ministers of Justice in Lanzarote in October 2007, that the CDPC took note of a report prepared by Ms Ksenija Turkovic on criminal aspects of the future work on European guidelines for child-friendly justice (see Addendum 4 to this report);

e. that the CDPC had a preliminary discussion on the possible themes of the 29th Conference of the Council of Europe Ministers of Justice, which will be held in Tromsø, Norway on 17-19 June 2009;

f. that the CDPC approved the proposals of the PC-CP concerning its current and future priorities and activities (see Addendum 5 to this report);

g. that the CDPC adopted comments on the Opinion No. 1 of the CCPE entitled “Ways of improving international co-operation in the criminal justice field” and decided to transmit this Opinion to the Committee of Ministers together with these comments.

4. The CDPC took note of:

a. the latest version of the draft 3rd Additional Protocol to the European Convention on Extradition, as elaborated by the PC-OC, which will complement the Convention by simplifying extradition procedures where the person consents to her/his extradition, and congratulated the PC-OC on its work;

b. the decisions taken by the PC-OC in relation to the preparation of normative texts regarding compensation issues, lapse of time and the rule of speciality in extradition procedures;

c. the progress achieved by the PC-OC regarding the implementation of practical measures to improve the operation of relevant conventions (list of points of contact and a database on national procedures relating to extradition and mutual legal assistance in criminal matters) and of the fact that these measures have had no budgetary implications;

d. the fact that the possibility of drafting a Second Additional Protocol to the European Convention on the Transfer of Sentenced Persons will be included on the agenda of one of the future meetings of the
PC-OC;

e. the fact that the Convention on the Transfer of Sentenced Persons had its 25th anniversary in 2008 and highlighted the importance of this convention, also ratified by many non member States of the Council of Europe, as a tool for co-operation.

f. information provided by the Chair concerning a case between Canada and Bulgaria relating to the application of Article 23 of the Convention on the Transfer of Sentenced Persons;

g. a question raised by the Georgian delegation on the application of the Convention on the Transfer of Sentenced Persons between Georgia and the Russian Federation, and held an exchange of views on the legal aspects relating to this question. The two delegations concerned accepted the proposal made by the Chair of the CDPC to continue discussions on this matter with the Chair in co-operation with the Secretariat in the framework of the procedure provided in Article 23 of the Convention;

h. information provided by the Secretariat on recent developments concerning the state of signatures and

    future ratifications of the Council of Europe Convention on the Protection of Children against Sexual Abuse and Sexual Exploitation;

i. a proposal by Romania to host a Conference of Council of Europe Ministries of Justice and of the Interior in Bucharest in 2010, on issues relating to international co-operation in criminal matters. The CDPC welcomed this suggestion and invited the Romanian delegation to pursue its dialogue with the Secretariat and the Bureau with a view to the preparation of this possible Conference;

j. the replies to a Questionnaire on the Implementation of the European Prison Rules and decided to extend the deadline for replies until 18 July 2008. It instructed the Secretariat to prepare a document evaluating these replies and proposing follow-up measures to the Bureau and the plenary of the CDPC;

k. the resumption of SPACE I and SPACE II as of 2008 and welcomed the fact that the Council of Europe was able to restore the financing of these activities;

l. information provided by the Secretariat on the organisation of a Conference on probation and aftercare in Strasbourg in November 2008;

m. information provided by the representative of the CDPC to the T-CY, Mr Branislav Boháčik, on developments in the field of Cybercrime and in particular the results of a Conference organised by the Council of Europe on 1-2 April 2008 and the T-CY meeting which took place on 3 and 4 April 2008;

n. information on the activities of MONEYVAL provided by Mr John Ringguth, Executive Secretary of MONEYVAL, of GRECO provided by Mr Wolfgang Rau, Executive Secretary of GRECO, and of CODEXTER, provided by Mr Tihomir Kralj, representative of the CDPC to CODEXTER.

5. The CDPC appointed Ms Irene Koeck (Austria), Mr Pavel Stern (Czech Republic) and Mr André Vallotton (Switzerland) as members of the PC-CP.

6. The CDPC appointed Mr Nikola Matovski (“the former Yugoslav Republic of Macedonia”) as representative of the CDPC to CEPEJ and to CCJE.

7. The CDPC re-elected Mr Eric Ruelle (France) as Vice-Chair for one year.

8. The CDPC adopted the revised document “Working methods of the CDPC and its Bureau”.

9. The CDPC requested its Bureau to:

a. follow closely the progress made by the PC-S-CP, in particular with a view to authorising the initiation of the work of the PC-ISP;

b. follow closely the preparation of elements for European guidelines for child-friendly justice;

c. prepare elements for resolutions to be adopted by the Ministers of Justice at the 29th Conference of the Council of Europe Ministers of Justice;

d. follow the work within the PC-OC regarding a possible Second Additional Protocol to the European Convention on the Transfer of Sentenced Persons;

e. follow closely the progress made toward the designation of 24/7 contact points under the Convention on Cybercrime.

10. The CDPC decided to hold its next meeting in September 2009. The Bureau decided to hold its next meeting in November 2008.

11. The CDPC invited the Committee of Ministers to take note of this report as a whole.

Appendix 1

Agenda

1.

Opening of the meeting by Mr Philippe Boillat, Director General of Human Rights and Legal Affairs

   

2.

Adoption of the agenda

   

**3.

Approval of the draft European Rules for juvenile offenders 6

   

*4.

Pharmaceutical crime

4a.

Feasibility of future work in the field

4b.

Approval of revised specific terms of reference for the Group of Specialists on counterfeit pharmaceutical products (PC-S-CP) and draft terms of reference of the ad hoc Committee on counterfeiting of medical products and similar crimes involving threats to public health (PC-ISP)

   

*5

Violence against women, including domestic violence

 

Feasibility of drafting a binding instrument to combat domestic violence

   

*6.

International co-operation in the criminal field

6a.

Initiatives to improve the efficiency of international co-operation in criminal matters:

 

Simplified extradition and other normative measures

6b.

Practical measures

6c.

Approval of revised specific terms of reference for the Committee of Experts on the operation of European conventions on co-operation in criminal matters (PC-OC)

6d.

Article 23 of the Convention on the Transfer of Sentenced Persons (CETS N° 112)

   

*7.

Council of Europe Conferences of Ministers of Justice

7a.

Follow-up to the 28th Conference (25-26 October 2007, Lanzarote, Spain)

7b.

Preparation of the 29th Conference (17-19 June 2009, Tromsø, Norway)

   

*8.

Prisons

8a.

Election of three PC-CP members

8b.

Extension of the ad hoc terms of reference of the PC-CP relating to probation and aftercare services

8c.

Current and future activities and priorities of the PC-CP

8d.

Approval of the revised draft terms of reference of the PC-CP

8e.

Conference on probation and aftercare (Strasbourg, 27-28 November 2008)

   

9.

Approval of the revised draft terms of reference of MONEYVAL

   

10.

Working methods of the CDPC and its Bureau

   

11.

Convention on cybercrime

   

12.

Activities of the Council of Europe outside the CDPC

 

- Parliamentary Assembly

 

- Committee of Ministers

 

- Steering Committees (CDCJ, CDDH, CDEG)

 

- Other Committees (CODEXTER, CEPEJ, CCPE)

 

Opinion of the Consultative Council of European Prosecutors (CCPE)

 

- Conferences and other meetings

 

- Congress of Local and Regional Authorities

   

13.

Date of the next meeting of the CDPC

   

14.

Any other business

Appendix 2

Draft Recommendation CM/Rec(2008)…
of the Committee of Ministers to member states
on the European Rules for Juvenile Offenders subject to Sanctions or Measures

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 a greater unity between its members, in particular through harmonising laws on matters of common interest;

Having regard in particular:

- to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5) and to the case law of the European Court of Human Rights;
- to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ETS No. 126) and to the work of the Committee entrusted with its implementation;
- to the United Nations Convention on the Rights of the Child;

Taking into consideration:

- Recommendation Rec(2006)2 on the European Prison Rules;
- Recommendation Rec(2005)5 on the rights of children living in residential institutions;
- Recommendation Rec(2004)10 concerning the protection of the human rights and dignity of persons with mental disorder;
- Recommendation Rec(2003)20 concerning new ways of dealing with juvenile delinquency and the role of juvenile justice;
- Recommendation No. R (97) 12 on staff concerned with the implementation of sanctions or measures;
- Recommendation No. R (92) 16 on the European rules on community sanctions and measures;
- Recommendation No. R (87) 20 on social reactions to juvenile delinquency;

Taking further into consideration:

- the United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines);
- the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules);
- the United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules);
- the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (The Havana Rules);

Having regard to the Final Declaration and Action Plan adopted at the 3rd Summit of Heads of State and Government of the Council of Europe (Warsaw, Poland, 16-17 May 2005), and in particular to Part III.2 of the Action Plan entitled “Building a Europe for children”, as well as having regard to Resolution No. 2 adopted at the 28th Conference of European Ministers of Justice (Lanzarote, Spain, 25-26 October 2007);

Considering therefore that common action at European level is needed in order to better protect the rights and well-being of juveniles who enter in conflict with the law and to develop a child-friendly justice system in its member states;

Considering it important in this respect that Council of Europe member states continue to improve, update and observe common principles regarding their national juvenile justice policies and practices and enhance international co-operation in this field,

Recommends that governments of the member States:

- be guided in their legislation, policies and practice by the rules contained in the appendix to this recommendation;
- ensure that this recommendation and the accompanying commentary are translated and disseminated as widely as possible and more specifically among judicial authorities and the police; services entrusted with the execution of sanctions and measures addressing juvenile offenders; penitentiary, welfare and mental health institutions holding juvenile offenders and their staff as well as the media and the general public.

Appendix to Recommendation CM/Rec(2008)…

European Rules for juvenile offenders subject to sanctions or measures

The aim of the present Rules is to uphold the rights and safety of juvenile offenders subject to sanctions or measures and to promote their physical, mental and social well-being when subjected to community sanctions or measures, or any form of deprivation of liberty.

Nothing in these Rules ought to be interpreted as precluding the application of other relevant international human rights instruments and standards that are more conducive to ensuring the rights, care and protection of juveniles. Furthermore, the provisions of Recommendation Rec(2006)2 on the European Prison Rules and of Recommendation No. R (92) 16 on the European rules on community sanctions and measures shall be applied to the benefit of juvenile offenders in as far as they are not in conflict with these Rules.

Part I – Basic principles, scope and definitions

A. Basic principles

1. Juvenile offenders subject to sanctions or measures shall be treated with respect for their human rights.

2. The sanctions or measures that may be imposed on juveniles, as well as the manner of their implementation, shall be specified by law and based on the principles of social integration and education and of the prevention of re-offending.

3. Sanctions and measures shall be imposed by a court or if imposed by another legally recognised authority they shall be subject to prompt judicial review. They shall be determinate and imposed for the minimum necessary period and only for a legitimate purpose.

4. The minimum age for the imposition of sanctions or measures as a result of the commission of an offence shall not be too low and shall be determined by law.

5. The imposition and implementation of sanctions or measures shall be based on the best interests of the juvenile offenders, limited by the gravity of the offences committed (principle of proportionality) and take account of their age, physical and mental well-being, development, capacities and personal circumstances (principle of individualisation) as ascertained when necessary by psychological, psychiatric or social inquiry reports.

6. In order to adapt the implementation of sanctions and measures to the particular circumstances of each case the authorities responsible for the implementation shall have a sufficient degree of discretion without leading to serious inequality of treatment.

7. Sanctions or measures shall not humiliate or degrade the juveniles subject to them.

8. Sanctions or measures shall not be implemented in a manner that aggravates their afflictive character or poses an undue risk of physical or mental harm.

9. Sanctions or measures shall be implemented without undue delay and only to the extent and for the period strictly necessary (principle of minimum intervention).

10. Deprivation of liberty of a juvenile shall be a measure of last resort and imposed and implemented for the shortest period possible. Special efforts must be undertaken to avoid pre-trial detention.

11. Sanctions or measures shall be imposed and implemented without discrimination on any ground such as sex, race, colour, language, religion, sexual orientation, political or other opinion, national or social origin, association with a national minority, property, birth or other status (principle of non-discrimination).

12. Mediation or other restorative measures shall be encouraged at all stages of dealing with juveniles.

13. Any justice system dealing with juveniles shall ensure their effective participation in the proceedings concerning the imposition as well as the implementation of sanctions or measures. Juveniles shall not have fewer legal rights and safeguards than those provided to adult offenders by the general rules of criminal procedure.

14. Any justice system dealing with juveniles shall take due account of the rights and responsibilities of the parents and legal guardians and shall as far as possible involve them in the proceedings and the execution of sanctions or measures, except if this is not in the best interests of the juvenile. Where the offender is over the age of majority the participation of parents and legal guardians is not compulsory. Members of the juveniles’ extended families and the wider community may also be associated with the proceedings where appropriate.

15. Any justice system dealing with juveniles shall follow a multi-disciplinary and multi-agency approach and be integrated with wider social initiatives for juveniles in order to ensure a holistic approach to and continuity of the care of such juveniles (principles of community involvement and continuous care).

16. The juvenile’s right to privacy shall be fully respected at all stages of the proceedings. The identity of juveniles and confidential information about them and their families shall not be conveyed to anyone who is not authorised by law to receive it.

17. Young adult offenders may, where appropriate, be regarded as juveniles and dealt with accordingly.

18. All staff working with juveniles perform an important public service. Their recruitment, special training and conditions of work shall ensure that they are able to provide the appropriate standard of care to meet the distinctive needs of juveniles and provide positive role models for them.

19. Sufficient resources and staffing shall be provided to ensure that interventions in the lives of juveniles are meaningful. Lack of resources shall never justify the infringement of the human rights of juveniles.

20. The execution of any sanction or measure shall be subjected to regular government inspection and independent monitoring.

B. Scope and definitions

21. For the purpose of these Rules:

21.1. “juvenile offender” means any person below the age of 18 who is alleged to have or who has committed an offence. References to juveniles in these rules shall be regarded as references to juvenile offenders as defined above;

21.2. “young adult offender” means any person between the ages of 18 and 21 who is alleged to have or who has committed an offence and who is subject to these rules because he/she falls under the provisions of Rule 17. References to young adults in these rules shall be regarded as references to young adult offenders as defined above;

21.3. “offence” means any act or omission that infringes criminal law. For the purpose of these rules it includes any such infringement dealt with by a criminal court or any other judicial or administrative authority;

21.4. “community sanctions or measures” means any sanction or measure other than a detention measure which maintains juveniles in the community and involves some restrictions of their liberty through the imposition of conditions and/or obligations, and which is implemented by bodies designated by law for that purpose. The term designates any sanction imposed by a judicial or administrative authority and any measure taken before or instead of a decision on a sanction, as well as ways of enforcing a sentence of imprisonment outside a prison establishment;

21.5. “deprivation of liberty” means any form of placement in an institution by decision of a judicial or administrative authority, from which the juvenile is not permitted to leave at will;

21.6. “institution” means a physical entity under the control of public authorities, where juveniles are living under the supervision of staff according to formal rules.

22. These Rules may also apply to the benefit of other persons held in the same institutions or settings as juvenile offenders.

Part II – Community sanctions and measures

C. Legal framework

23.1. A wide range of community sanctions and measures, adjusted to the different stages of development of juveniles, shall be provided at all stages of the process.

23.2. Priority shall be given to sanctions and measures that may have an educational impact as well as constituting a restorative response to the offences committed by juveniles.

24. National law shall specify the following characteristics of the different community sanctions and measures:

a. the definition and mode of application of all sanctions and measures applicable to juveniles;
b. any condition or obligation that is the consequence of the imposition of such sanction or measure;
c. the cases in which the consent of the juvenile is required before a sanction or measure may be imposed;
d. which authorities are responsible for the imposition, modification and implementation of a sanction or measure and their respective duties and responsibilities;
e. the grounds and procedures applicable for the modification of an imposed sanction or measure; and
f. the procedures for the regular and external scrutiny of the work of the implementing authorities.

25. In order to meet the specific needs of juveniles, national law shall set out:

a. the obligation of any competent authority to explain the content and the aims of the legal provisions governing community sanctions or measures to juvenile offenders and, if necessary, to their parents or legal guardians;
b. the obligation of any competent authority to aim at the best possible co-operation with juvenile offenders and their parents or legal guardians; and
c. the rights of parents and legal guardians of juvenile offenders who may be subject to community sanctions or measures, possible restrictions on their rights and duties in regard to the imposition and implementation of any such sanctions and measures.

26. The decision to impose or revoke a community sanction or measure shall be taken by a judicial authority or, if it is taken by an administrative authority authorised by law, it shall be subject to judicial review.

27. Depending on the progress made by the juvenile, the competent authorities shall, when provided for by national law, be entitled to reduce the duration of any sanction or measure, relax any condition or obligation laid down in such a sanction or measure or terminate it.

28. The rights of juveniles to benefits in respect of education, vocational training, physical and mental health care, safety and social security shall not be limited by the imposition or implementation of community sanctions or measures.

29. Whenever the consent of juveniles or their parents or legal guardians is required for the imposition or implementation of community sanctions or measures, such consent shall be informed and explicit.

30.1. If juveniles do not comply with the conditions and obligations of the community sanctions or measures imposed on them, this shall not lead automatically to deprivation of liberty. Where possible, modified or new community sanctions or measures shall replace the previous ones.

30.2. Failure to comply shall not automatically constitute an offence.

D. Conditions of implementation and consequences of non-compliance

D.1. Conditions of implementation

31.1. Community sanctions and measures shall be implemented in a way that makes them as meaningful as possible to juveniles and that contributes to their educational development and the enhancement of their social skills.

31.2. Juveniles shall be encouraged to discuss matters relating to the implementation of community sanctions and measures and to communicate individually or collectively with the authorities about these matters.

32. The implementation of community sanctions or measures shall respect as far as possible the existing constructive social networks of the juveniles and the relations to their families.

33.1. Juveniles shall be informed, in a manner and language they understand, as to how the community sanction or measure imposed on them will be implemented and about their rights and duties in regard to its implementation.

33.2. Juveniles shall have the right to make oral or written representations prior to any formal decision concerning the implementation of the community sanctions or measures, as well as the right to apply to alter the conditions of implementation.

34.1. Individual case records shall be established and kept up to date by the implementing authorities.

34.2. Case records shall meet the following requirements:

a. information in case records shall only encompass matters relevant to the community sanction or measure imposed and its implementation;
b. juveniles and their parents or legal guardians shall have access to the juvenile’s case records to the extent that it does not infringe the rights to privacy of others; they shall have the right to contest the contents of the case records;
c. information in a case record shall only be disclosed to those with a legal right to receive it and any information disclosed shall be limited to what is relevant for the task of the authority requesting information;
d. after the termination of the community sanction or measure, case records shall be destroyed or kept in archives where access to their contents shall be restricted by rules providing safeguards on revealing their content to third parties.

35. Any information about juveniles given to agencies which provide educational or work placements or personal and social assistance shall be restricted to the purpose of the particular action under consideration.

36.1. The conditions under which juveniles carry out community work or comparable duties shall meet the standards set by general national health and safety legislation.

36.2. The juveniles shall be insured or indemnified against the consequences of accident, injury and public liability arising as a result of implementation of community sanctions or measures.

37. The costs of implementation shall in principle not be borne by the juveniles or their families.

38. The relationship between the staff concerned and the juveniles shall be guided by principles of education and development.

39.1. The implementation of community sanctions and measures shall be based on individualised assessments and methods of intervention that are consistent with proven professional standards.

39.2. These methods shall be developed in the light of research findings and best practices in social work, youth welfare and allied fields of activity.

40. Within the framework of a given community sanction or measure various approaches, such as case-work, group therapy, mentoring and day attendance, and the specialised treatment of various categories of offenders shall be adopted to meet the needs of the juveniles.

41.1 Restrictions of liberty shall be proportionate to the community sanction or measure, limited by its aims and shall be placed on juveniles only to the extent that they are necessary for its proper implementation.

41.2. Practical and precise instructions shall be issued to the staff directly responsible for the implementation of community sanctions or measures.

42. Wherever possible, a continuous and long-term relationship shall be maintained between the staff implementing a community sanction or measure and the juvenile, even when the juvenile’s place of residence, legal status or type of intervention changes.

43.1. Special attention shall be paid to appropriate interventions for linguistic or ethnic minorities and juveniles who are foreign nationals.

43.2 In case there is a provision to transfer the execution of community sanctions or measures applied to juveniles who are foreign nationals they shall be informed of their rights in this respect. Close co-operation with the juvenile welfare and justice agencies shall be established in order to facilitate the necessary assistance for such juveniles immediately upon arrival in their country of origin.

43.3. In exceptional cases where juveniles who are foreign nationals are to be expelled to their countries of origin after the execution of the community sanctions or measures, efforts shall be made to establish contacts with social welfare authorities in their countries of origin, in so far as such contacts are in the best interest of the juveniles concerned.

44. Juveniles shall be encouraged to make reparation to the best of their ability for any damage or negative effects caused by the offence, in so far as such reparation is within the scope of the community sanctions or measures to which they are subject.

45. Community work shall not be undertaken for the sole purpose of making a profit.

D.2. Consequences of non-compliance

46. Juveniles and their parents or legal guardians shall be informed of the consequences of non-compliance with the conditions and obligations of community sanctions or measures and the rules under which allegations of non-compliance will be considered.

47.1. The procedures to be followed by the authorities reporting or deciding on non-compliance with the requirements of the community sanctions or measures shall be defined clearly.

47.2. Minor transgressions shall be noted in the individual case file but need not be reported to the authority deciding on non-compliance, unless national law requires that this be done. Such transgressions may be promptly dealt with by discretionary means.

47.3. Significant failure to comply with the requirements shall be promptly reported in writing to the authority deciding on non-compliance.

47.4. Such reports shall give a detailed account of the manner in which the non-compliance occurred, the circumstances in which it took place and the personal situation of the juvenile.

48.1. The authority responsible for deciding on non-compliance shall only give a ruling on the modification or the partial or total revocation of a community sanction or measure after making a detailed examination of the facts reported to it.

48.2. If necessary, psychological or psychiatric assessments or observations, as well as social inquiry reports shall be requested.

48.3. The authority shall ensure that juveniles and, where appropriate, their parents or legal guardians have the opportunity to examine the evidence of non-compliance on which the request for modification or revocation is based and to present their comments.

48.4. Where the revocation or modification of a community sanction or measure is being considered, due account shall be taken of the extent to which the juvenile has already fulfilled the requirements of the initial sanction or measure in order to ensure that a new or modified sanction or measure is still proportionate to the offence.

48.5. If as a result of non-compliance an authority other than a court revokes or modifies a community sanction or measure, its decision shall be subject to judicial review.

Part III – Deprivation of liberty

E. General part

E.1. Overall approach

49.1. Deprivation of liberty shall be implemented only for the purpose for which it is imposed and in a manner that does not aggravate the suffering inherent to it.

49.2. Deprivation of liberty of juveniles shall provide for the possibility of early release.

50.1. Juveniles deprived of their liberty shall be guaranteed a variety of meaningful activities and interventions according to an individual overall plan that aims at progression through less restrictive regimes and preparation for release and reintegration into society. These activities and interventions shall foster their physical and mental health, self-respect and sense of responsibility and develop attitudes and skills that will prevent them from re-offending.

50.2. Juveniles shall be encouraged to take part in such activities and interventions.

50.3. Juveniles deprived of their liberty shall be encouraged to discuss matters relating to general conditions and regime activities in institutions and to communicate individually or, where applicable, collectively with authorities about these matters.

51. In order to guarantee the continuity of care, juveniles shall be assisted, from the beginning of and throughout any period of deprivation of liberty, by the agencies that may be responsible for them after release.

52.1. As juveniles deprived of their liberty are highly vulnerable, the authorities shall protect their physical and mental integrity and foster their well-being.

52.2. Particular care shall be taken of the needs of juveniles who have experienced physical, mental or sexual abuse.

E.2. Institutional structure

53.1. Institutions or sections of institutions shall provide a range of facilities to meet the individual needs of the juveniles held there and the specific purpose of their committal.

53.2. Such institutions shall provide conditions with the least restrictive security and control arrangements necessary to protect juveniles from harming themselves, staff, others or the wider community.

53.3. Life in an institution shall approximate as closely as possible the positive aspects of life in the community.

53.4. The number of juveniles in an institution shall be small enough to enable individualised care. Institutions shall be organised into small living units.

53.5. Juvenile institutions shall be located in places that are easy to access and facilitate contact between the juveniles and their families. They should be established and integrated into the social, economic and cultural environment of the community.

E.3. Placement

54. The placement of different categories of juveniles in institutions shall be guided in particular by the provision of the type of care best suited to their particular needs and the protection of their physical and mental integrity and well-being.

55. Juveniles shall be placed, as far as possible, in institutions easily accessible from their homes or places of social reintegration.

56. Juveniles deprived of liberty shall be sent to institutions with the least restrictive level of security to hold them safely.

57. Juveniles who are suffering from mental illness and who are to be deprived of their liberty shall be held in mental health institutions.

58. As far as possible, juveniles, and where practicable their parents or legal guardians, shall be consulted about the initial placement and any subsequent transfer from one institution to another.

59.1. Juveniles shall not be held in institutions for adults, but in institutions specially designed for them. If juveniles are nevertheless exceptionally held in an institution for adults they shall be accommodated separately unless in individual cases it is in their best interest not to do so. In all cases these rules shall apply to them.

59.2. Exceptions may have to be made to the requirements for separate detention in terms of sub-paragraph 1 in order to allow juveniles to participate jointly in organised activities with persons in institutions for adults.

59.3. Juveniles who reach the age of majority and young adults dealt with as if they were juveniles shall normally be held in institutions for juvenile offenders or in specialised institutions for young adults unless their social reintegration can be better effected in an institution for adults.

60. Male and female juveniles shall normally be held in separate institutions or units within an institution. Separation between male and female juveniles need not be applied in welfare or mental health institutions. Even where male and female juveniles are held separately they shall be allowed to participate jointly in organised activities.

61. Within institutions there shall be an appropriate assessment system in order to place juveniles according to their educational, developmental and safety needs.

E.4. Admission

62.1. No juvenile shall be admitted to or held in an institution without a valid commitment order.

62.2. At admission, the following details shall be recorded immediately concerning each juvenile:

a. information concerning the identity of the juvenile and his or her parents or legal guardians;
b. the reasons for commitment and the authority responsible for it;
c. the date and time of admission;
d. an inventory of the personal property of the juvenile that is to be held in safekeeping;
e. any visible injuries and allegations of prior ill-treatment;
f. any information and any report about the juvenile’s past and his or her educational and welfare needs; and
g. subject to the requirements of medical confidentiality, any information about the juvenile’s risk of self-harm or a health condition that is relevant to the physical and mental well-being of the juvenile or to that of others.

62.3. At admission, the rules of the institution and the rights and obligations of the juvenile shall be explained in a language and manner that the juvenile understands.

62.4. Notification of the placement of the juvenile, information on the rules governing the institution and any other relevant information shall be given immediately to the juvenile’s parents or legal guardians.

62.5. As soon as possible after admission, the juvenile shall be medically examined, a medical record shall be opened and treatment of any illness or injury shall be initiated.

62.6. As soon as possible after admission:

a. the juvenile shall be interviewed and a first psychological, educational and social report identifying any factors relevant to the specific type and level of care and intervention shall be made;
b. the appropriate level of security for the juvenile shall be established and if necessary alterations shall be made to the initial placement;
c. save in the case of very short periods of deprivation of liberty, an overall plan of educational and training programmes in accordance with the individual characteristics of the juvenile shall be developed and the implementation of such programmes shall begin; and
d. the views of the juveniles shall be taken into account when developing such programmes.

E.5. Accommodation

63.1. The accommodation provided for juveniles, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation. Specific minimum requirements in respect of these matters shall be set in national law.

63.2. Juveniles shall normally be accommodated during the night in individual bedrooms, except where it is preferable for them to share sleeping accommodation. Accommodation shall only be shared if it is appropriate for this purpose and shall be occupied by juveniles suitable to associate with each other. Juveniles shall be consulted before being required to share sleeping accommodation and may indicate with whom they would wish to share.

64. There shall be regular, unobtrusive supervision by staff of all accommodation, particularly during the night in order to ensure the protection of each juvenile. There shall also be an effective alarm system that can be used in case of emergencies.

E.6. Hygiene

65.1. All parts of every institution shall be properly maintained and kept clean at all times.

65.2. Juveniles shall have ready access to sanitary facilities that are hygienic and respect privacy.

65.3. Adequate facilities shall be provided so that juveniles may have a bath or shower daily if possible, at a temperature suitable to the climate.

65.4. Juveniles shall keep their persons, clothing and sleeping accommodation clean and tidy and the authorities shall teach them to do so and provide them with the means for it.

E.7. Clothing and bedding

66.1. Juveniles shall be allowed to wear their own clothing provided that it is suitable.

66.2. Juveniles who do not have sufficient suitable clothing of their own shall be provided with such clothing by the institution.

66.3 Suitable clothing is clothing that is not degrading or humiliating and is adequate for the climate and does not pose a risk to security or safety.

66.4. Juveniles who obtain permission to go outside the institution shall not be required to wear clothing that identifies them as persons deprived of their liberty.

67. Every juvenile shall be provided with a separate bed and separate and appropriate bedding, which shall be kept in good order and changed often enough to ensure its cleanliness.

E.8. Nutrition

68.1. Juveniles shall be provided with a nutritious diet that takes into account their age, health, physical condition, religion, culture and the activities that they undertake in the institution.

68.2. Food shall be prepared and served hygienically in three meals a day with reasonable intervals between them.

68.3. Clean drinking water shall be available to juveniles at all times.

68.4. Where appropriate, juveniles shall be given the opportunity to cater for themselves.

E.9. Health

69.1. The provisions contained in international instruments on medical care for the physical and mental health of adult detainees are applicable also to juveniles deprived of their liberty.

69.2. The health of juveniles deprived of their liberty shall be safeguarded according to recognised medical standards applicable to juveniles in the wider community.

70.1. Particular attention should be paid to dealing with health hazards linked to deprivation of liberty.

70.2. Special policies shall be developed and implemented to prevent suicide and self-harm by juveniles, particularly during their initial detention, segregation and other recognised high risk periods.

71. Juveniles shall be given preventive health care and health education.

72.1. Medical interventions including the use of medication shall be made only on medical grounds and not for purposes of maintaining good order or as a form of punishment. The same ethical principles and principles of consent governing medical interventions in free society shall be applied. A record shall be kept of any medical treatment or any drugs administered.

72.2. Juveniles deprived of their liberty shall never be subject to experimental use of drugs or treatment.

73. Particular attention shall be paid to the needs of:

a. younger juveniles;
b. pregnant girls and mothers with infant children;
c. drug addicts and alcoholics;
d. juveniles with physical and mental health problems;
e. juveniles who exceptionally are deprived of their liberty for long periods;
f. juveniles who have experienced physical, mental or sexual abuse;
g. socially isolated juveniles; and
h. other particularly vulnerable offender groups.

74.1. Health-care services offered to juveniles shall form an integral part of a multidisciplinary programme of care.

74.2. In order to provide a seamless web of support and therapy and without prejudice to professional confidentiality and the role of each profession, the work of doctors and nurses shall be closely co-ordinated with social workers, psychologists, teachers, other professionals and staff, who have regular contact with juvenile offenders.

75. Health care in juvenile institutions shall not be limited to treating sick patients, but shall extend to social and preventive medicine and the supervision of nutrition.

E.10. Regime activities

76.1 All interventions shall be designed to promote the development of juveniles, who shall be actively encouraged to participate in them.

76.2. These interventions shall endeavour to meet the individual needs of juveniles in accordance with their age, gender, social and cultural background, stage of development and type of offence committed. They shall be consistent with proven professional standards based on research findings and best practices in the field.

77. Regime activities shall aim at education, personal and social development, vocational training, rehabilitation and preparation for release. These may include:

a. schooling;
b. vocational training;
c. work and occupational therapy;
d. citizenship training;
e. social skills and competence training;
f. aggression-management;
g. addiction therapy;
h. individual and group therapy;
i. physical education and sport;
j. tertiary or further education;
k. debt regulation;
l. programmes of restorative justice and making reparation for the offence;
m. creative leisure time activities and hobbies;
n. activities outside the institution in the community, day leave and other forms of leave; and
o. preparation for release and aftercare.

78.1. Schooling and vocational training, and where appropriate treatment interventions, shall be given priority over work.

78.2. As far as possible arrangements shall be made for juveniles to attend local schools and training centres and other activities in the community.

78.3. Where it is not possible for juveniles to attend local schools or training centres outside the institution, education and training shall take place within the institution, but under the auspices of external educational and vocational training agencies.

78.4. Juveniles shall be enabled to continue their schooling or vocational training while in detention and those who have not completed their compulsory schooling may be obliged to do so.

78.5. Juveniles in detention shall be integrated into the educational and vocational training system of the country so that after their release they may continue their education and vocational training without difficulty.

79.1. An individual plan shall be drawn up based on the activities in Rule 77 listing those in which the juvenile shall participate.

79.2. The objective of this plan shall be to enable juveniles from the outset of their detention to make the best use of their time and to develop skills and competences that enable them to reintegrate into society.

79.3. The plan shall be oriented towards preparing juveniles to be released as early as possible and give an indication of appropriate post-release measures.

79.4. The plan shall be implemented and updated regularly with the participation of the juveniles, the outside agencies concerned and as far as possible their parents or legal guardians.

80.1. The regime shall allow all juveniles to spend as many hours a day outside their sleeping accommodation as are necessary for an adequate level of social interaction. Such a period shall be preferably at least eight hours a day.

80.2. The institution shall also provide meaningful activities on weekends and holidays.

81. All juveniles deprived of their liberty shall be allowed to exercise regularly for at least two hours every day, of which at least one hour shall be in the open air, if the weather permits.

82.1. The institution shall provide sufficient work for juveniles which is stimulating and of educational value.

82.2. Work shall be adequately rewarded.

82.3. When juveniles participate in regime activities during work time they shall be rewarded in the same way as if they were working.

82.4. Juveniles shall receive adequate social security coverage similar to that provided in free society.

E.11. Contact with the outside world

83. Juveniles shall be allowed to communicate through letters, without restriction as to their number and as often as possible by telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive regular visits from these persons.

84. Arrangements for visits shall be such as to allow juveniles to maintain and develop family relationships in as normal a manner as possible and have opportunities for social reintegration.

85.1. Institutional authorities shall assist juveniles in maintaining adequate contact with the outside world and provide them with the appropriate means to do so.

85.2. Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum level of contact.

85.3. Any information received of the death or serious illness of any near relative shall be promptly communicated to the juvenile.

86.1. As part of the normal regime, juveniles shall be allowed regular periods of leave, either escorted or alone. In addition, juveniles shall be allowed to leave the institution for humanitarian reasons.

86.2. If regular periods of leave are not practicable, provision shall be made for additional or long-term visits by family members or other persons who can make a positive contribution to the development of the juvenile.

E.12. Freedom of thought, conscience and religion

87.1. Juveniles’ freedom of thought, conscience and religion shall be respected.

87.2. The institutional regimen shall be organised so far as is practicable to allow juveniles to practise their religion and follow their beliefs, to attend services or meetings led by approved representatives of such religion or beliefs, to receive visits in private from such representatives of their religion or beliefs and to have in their possession books or literature relating to their religion or beliefs.

87.3. Juveniles may not be compelled to practise a religion, follow a belief, attend religious services or meetings, take part in religious practices or to accept a visit from a representative of any religion or belief.

E.13. Good order

E.13.1. General approach

88.1. Good order shall be maintained by creating a safe and secure environment in which the dignity and physical integrity of the juveniles are respected and their primary developmental goals are met.

88.2. Particular attention shall be paid to protecting vulnerable juveniles and to preventing victimisation.

88.3. Staff shall develop a dynamic approach to safety and security which builds on positive relationships with juveniles in the institutions.

88.4. Juveniles shall be encouraged to commit themselves individually and collectively to the maintenance of good order in the institution.

E.13.2. Searching

89.1. There shall be detailed procedures regarding searching of juveniles, staff, visitors and premises. The situations when such searches are necessary and their nature shall be defined by national law.

89.2. Searches shall respect the dignity of juveniles concerned and as far as possible their privacy. Juveniles shall be searched by staff of the same gender. Related intimate examinations must be justified by reasonable suspicion in an individual case and shall be conducted by a medical practitioner only.

89.3. Visitors shall only be searched if there is a reasonable suspicion that they may have something in their possession that threatens the safety and security of the institution.

89.4. Staff shall be trained to carry out searches effectively, while at the same time respecting the dignity of those being searched and their personal possessions.

E.13.3. Use of force, physical restraint and weapons

90.1. Staff shall not use force against juveniles except, as a last resort, in self-defence or in cases of attempted escape, physical resistance to a lawful order, direct risk of self-harm, harm to others or serious damage to property.

90.2. The amount of force used shall be the minimum necessary and be applied for the shortest time necessary.

90.3. Staff who deal directly with juveniles shall be trained in techniques that enable the minimal use of force in the restraint of aggressive behaviour.

90.4. There shall be detailed procedures concerning the use of force, including stipulations on:

a. the various types of force that may be used;
b. the circumstances in which each type of force may be used;
c. the members of staff who are entitled to use different types of force;
d. the level of authority required before any force is used;
e. the reports that must be completed once force has been used; and
f. the process for reviewing the above reports.

91.1. Handcuffs or restraint jackets shall not be used except when less intensive forms of the use of force have failed. Handcuffs may also be used if essential as a precaution against violent behaviour or escape during a transfer. They shall be removed when a juvenile appears before a judicial or administrative authority unless that authority decides otherwise.

91.2. Instruments of restraint shall not be applied for any longer time than is strictly necessary. The use of chains and irons shall be prohibited.

91.3. The manner of use of instruments of restraint shall be specified in national law.

91.4. Isolation in a calming down cell as a means of temporary restraint shall only be used exceptionally and only for a few hours and in any case shall not exceed twenty-four hours. A medical practitioner shall be informed of such isolation and given immediate access to the juvenile concerned.

92. Staff in institutions in which juveniles are deprived of their liberty shall not be allowed to carry weapons unless an operational emergency so requires. The carrying and use of lethal weapons in welfare and mental health institutions is prohibited.

E.13.4. Separation for security and safety reasons

93.1. If in very exceptional cases a particular juvenile needs to be separated from the others for security or safety reasons this shall be decided by the competent authority on the basis of clear procedures laid down in national law, specifying the nature of the separation, its maximum duration and the grounds on which it may be imposed.

93.2 Such separation shall be subject to regular review. In addition the juvenile may lodge a complaint in terms of Rule 121 about any aspect of such separation. A medical practitioner shall be informed of such separation and given immediate access to the juvenile concerned

E.13.5. Discipline and punishment

94.1. Disciplinary procedures shall be mechanisms of last resort. Restorative conflict resolution and educational interaction with the aim of norm validation shall be given priority over formal disciplinary hearings and punishments.

94.2. Only conduct likely to constitute a threat to good order, safety or security may be defined as a disciplinary offence.

94.3. National law shall determine the acts or omissions that constitute disciplinary offences, the procedures to be followed at disciplinary hearings, the types and duration of punishment that may be imposed, the authority competent to impose such punishment and the appellate process.

94.4. Juveniles charged with disciplinary offences must be informed promptly and in a manner and language they understand of the nature of the accusation against them and be given adequate time and facilities to prepare their defence; be allowed to defend themselves in person or with the assistance of their parents or legal guardians or, when the interests of justice so require, through legal assistance.

95.1. Disciplinary punishments shall be selected, as far as possible, for their educational impact. They shall not be heavier than justified by the seriousness of the offence.

95.2. Collective punishment, corporal punishment, punishment by placing in a dark cell, and all other forms of inhuman and degrading punishment shall be prohibited.

95.3. Solitary confinement in a punishment cell shall not be imposed on juveniles.

95.4. Segregation for disciplinary purposes shall only be imposed in exceptional cases where other sanctions would not be effective. Such segregation shall be for a specified period of time, which shall be as short as possible. The regime during such segregation shall provide appropriate human contact, grant access to reading material and offer at least one hour of outdoor exercise every day if the weather permits.

95.5. A medical practitioner shall be informed of such segregation and given access to the juvenile concerned.

95.6. Disciplinary punishment shall not include a restriction on family contacts or visits unless the disciplinary offence relates to such contacts or visits.

95.7. Exercise under the terms of Rule 81 shall not be restricted as part of a disciplinary punishment.

E.14. Transfer between institutions

96. Juveniles shall be transferred when the initial criteria for placing them or the further promotion of reintegration into society can be met more effectively in another institution or when serious security and safety risks make such a transfer essential.

97. Juveniles shall not be transferred as a disciplinary measure.

98. A juvenile may be transferred from one type of institution to another if prescribed by law and if ordered by a judicial or administrative authority after an appropriate inquiry has been conducted.

99.1. All relevant information and data relating to the juvenile shall be transferred in order to ensure continuity of care.

99.2. The conditions under which juveniles are transported shall meet the requirements of humane detention.

99.3. The anonymity and privacy of the juveniles being transported shall be respected.

E.15. Preparation for release

100.1. All juveniles deprived of their liberty shall be assisted in making the transition to life in the community.

100.2. All juveniles whose guilt has been determined shall be prepared for release by special forms of interventions.

100.3. Such interventions shall be included in the individual plan under the terms of Rule 79.1 and shall be implemented in good time prior to release.

101.1. Steps shall be taken to ensure a gradual return of the juvenile to life in free society.

101.2. Such steps should include additional leave, and partial or conditional release combined with effective social support.

102.1. From the beginning of the deprivation of liberty the institutional authorities and the services and agencies that supervise and assist released juveniles shall work closely together to enable them to re-establish themselves in the community, for example by:

a. assisting in returning to their family or finding a foster family and helping them develop other social relationships;
b. finding accommodation;
c. continuing their education and training;
d. finding employment;
e. referring them to appropriate social and health-care agencies; and
f. providing monetary assistance.

102.2. Representatives of such services and agencies shall be given access to juveniles in institutions to assist them with preparation for release.

102.3. These services and agencies shall be obliged to provide effective and timely pre-release assistance before the envisaged dates of release.

103. Where juveniles are released conditionally, the implementation of such conditional release shall be subject to the same principles that guide the implementation of community sanctions and measures in terms of these Rules.

E.16. Foreign nationals

104.1 Juveniles who are foreign nationals and who are to remain in the country in which they are held shall be treated in the same way as other juveniles.

104.2 As long as a definite decision is not yet taken on whether to transfer foreign juveniles to their country of origin they shall be treated in the same way as other juveniles.

104.3. If it has been decided to transfer them, they shall be prepared for reintegration in their countries of origin. Where possible there should be close co-operation with the juvenile welfare and justice agencies in order to guarantee the necessary assistance for such juveniles immediately upon arrival in their country of origin.

104.4. Juveniles who are foreign nationals shall be informed of the possibilities of requesting that the execution of their deprivation of liberty take place in their country of origin.

104.5. Juveniles who are foreign nationals shall be allowed extended visits or other forms of contacts with the outside world where this is necessary to compensate for their social isolation.

105.1. Juveniles who are foreign nationals and are held in institutions shall be informed, without delay, of their right to request contact and be allowed reasonable facilities to communicate with the diplomatic or consular representative of their state.

105.2. Such juveniles who are nationals of states without diplomatic or consular representation in the country and refugees or stateless persons shall be allowed similar facilities to communicate with the diplomatic representative of the state which takes charge of their interests or the national or international authority whose task it is to serve the interests of such persons.

105.3. Institutional and welfare authorities shall co-operate fully with diplomatic or consular officials representing such juveniles in order to meet their special needs.

105.4. In addition, foreign juveniles facing expulsion shall be provided with legal advice and assistance in this regard.

E.17. Ethnic and linguistic minorities in institutions

106.1. Special arrangements shall be made to meet the needs of juveniles who belong to ethnic or linguistic minorities in institutions.

106.2. As far as practicable, the cultural practices of different groups shall be allowed to continue in the institution.

106.3. Linguistic needs shall be met by using competent interpreters and by providing written material in the range of languages used in a particular institution.

106.4. Special steps shall be taken to offer language courses to juveniles who are not proficient in the official language.

E.18. Juveniles with disabilities

107.1. Juveniles with disabilities should be detained in ordinary institutions in which the accommodation has been adapted to meet their needs.

107.2. Juveniles with disabilities whose needs cannot be accommodated in ordinary institutions shall be transferred to specialised institutions where these needs can be met.

F. Special Part

F.1. Police custody, pre-trial detention, and other forms of deprivation of liberty prior to sentencing

108. All detained juvenile offenders whose guilt has not been determined by a court shall be presumed innocent of an offence and the regime to which they are subject shall not be influenced by the possibility that they may be convicted of an offence in the future.

109. The particular vulnerability of juveniles during the initial period of detention shall be taken into consideration to ensure that they are treated with full respect for their dignity and personal integrity at all times.

110. In order to guarantee the through care for such juveniles, they shall be assisted immediately by the agencies that will be responsible for them after their release or while they are subject to custodial or non-custodial sanctions or measures in the future.

111. The liberty of such juveniles may be restricted only to the extent justified by the purpose of their detention.

112. Such juveniles shall not be compelled to work or take part in any interventions or activities which juveniles in the community cannot be compelled to undertake.

113.1. A range of interventions and activities shall be available to detained juveniles whose guilt has not been determined.

113.2. If such juveniles request to participate in interventions for juveniles whose guilt has been determined, they shall, if possible, be allowed to do so.

F.2. Welfare institutions

114. Welfare institutions are primarily open institutions and shall provide closed accommodation only in exceptional cases and for the shortest period possible.

115. All welfare institutions shall be accredited and registered with the competent public authorities and shall provide care meeting the required national standards.

116. Juvenile offenders who are integrated with other juveniles in welfare institutions shall be treated in the same way as such juveniles.

F.3. Mental health institutions

117. Juvenile offenders in mental health institutions shall receive the same general treatment as other juveniles in such institutions and the same regime activities as other juveniles deprived of their liberty.

118. Treatment for mental health problems in such institutions shall be determined on medical grounds only, shall follow the recognised and accredited national standards prescribed for mental health institutions and shall be governed by the principles contained in the relevant international instruments.

119. In mental health institutions safety and security standards for juvenile offenders shall be determined primarily on medical grounds.

Part IV – Legal advice and assistance

120.1. Juveniles and their parents or legal guardians are entitled to legal advice and assistance in all matters related to the imposition and implementation of sanctions or measures.

120.2. The competent authorities shall provide juveniles with reasonable facilities for gaining effective and confidential access to such advice and assistance, including unrestricted and unsupervised visits by legal advisors.

120.3. The state shall provide free legal aid to juveniles, their parents or legal guardians when the interests of justice so require.

Part V – Complaints procedures. Inspection and monitoring

G. Complaints procedures

121. Juveniles and their parents or guardians shall have ample opportunity to make requests or complaints to the authority responsible for the institution where they are held or for the community sanction or measure to which they are subject.

122.1. Procedures for making requests or complaints shall be simple and effective. Decisions on such requests or complaints shall be taken promptly.

122.2. Mediation and restorative conflict resolution shall be given priority as means of resolving complaints or meeting requests.

122.3. If a request is denied or a complaint is rejected, reasons shall be provided to the juvenile and, where applicable, to the parent or legal guardian who made it. The juvenile or, where applicable, the parent or legal guardian shall have the right to appeal to an independent and impartial authority.

122.4. Such appellate process is to be conducted by this authority:

a. in a way that is sensitive to juveniles and their needs and concerns;

b. by persons who have an understanding of juvenile matters; and
c. at a place as near as possible to the institution where the juvenile is held or where the community sanctions or measures to which the juvenile is subject are being implemented.

122.5. Even where the initial complaint or request or the subsequent appellate process is primarily in writing, there shall be a possibility for the juvenile to be heard in person.

123. Juveniles shall not be punished for having made a request or lodged a complaint.

124. Juveniles and their parents or legal guardians are entitled to seek legal advice about complaints and appeal procedures and to benefit from legal assistance when the interests of justice so require.

H. Inspection and monitoring

125. Institutions in which juveniles are deprived of their liberty and authorities implementing community sanctions and measures shall be inspected regularly by a governmental agency in order to assess whether they are operating in accordance with the requirements of national and international law, and the provisions of these rules.

126.1. The conditions in such institutions and the treatment of juveniles deprived of their liberty or subject to community sanctions or measures shall be monitored by an independent body or bodies, to which the juveniles shall have confidential access, and whose findings shall be made public.

126.2. In such independent monitoring particular attention shall be paid to the use of force, restraints, disciplinary punishments and other particularly restrictive forms of treatment.

126.3. All instances of death or serious injury of juveniles shall be investigated promptly, vigorously and independently.

126.4. Such independent monitoring bodies shall be encouraged to co-operate with those international agencies that are legally entitled to visit institutions in which juveniles are deprived of liberty.

Part VI – Staff

127.1. A comprehensive policy concerning the staff responsible for the implementation of community sanctions and measures and the deprivation of liberty of juveniles shall be laid down in a formal document covering recruitment, selection, training, status, management responsibilities and conditions of work.

127.2. This policy shall also specify the fundamental ethical standards to be adopted by the staff dealing with such juveniles and focus on the juvenile target group to be dealt with. It shall also provide for an effective mechanism to deal with violations of ethical and professional standards.

128.1. There shall be special recruitment and selection procedures for staff dealing with juveniles, taking into consideration the qualities of character and the professional qualifications necessary to work with juveniles and their families.

128.2. Recruitment and selection procedures shall be explicit, clear, fair and non-discriminatory.

128.3. Staff recruitment and selection shall take into account the need to employ men and women with the skills necessary to deal with the language and cultural diversities of the juveniles for whom they are responsible.

129.1. Staff responsible for the implementation of community sanctions and measures and the deprivation of liberty of juveniles shall have adequate initial training, dealing with theoretical and practical aspects of their work, and be given guidance that will enable them to have a realistic understanding of their particular field of activity, their practical duties and the ethical requirements of their work.

129.2. The professional competence of staff shall be regularly reinforced and developed through further in-service training, supervision and performance reviews and appraisals.

129.3. The training shall focus on:

a. ethics and basic values of the profession concerned;
b. national safeguards and international instruments on children’s rights and protection of juveniles against unacceptable treatment;
c. juvenile and family law, psychology of development, social and educational work with juveniles;
d. instruction of staff on how to guide and motivate the juveniles, to gain their respect, and to provide juveniles with a positive role model and perspective;
e. the establishment and maintenance of a professional relationship with the juveniles and their families;
f. proven methods of intervention and good practices;
g. methods of dealing with the diversity of the juveniles concerned; and
h. ways of co-operating in multidisciplinary teams as well as with other institutions involved in the treatment of individual juveniles.

130. The staff concerned with the implementation of community sanctions and measures and the deprivation of liberty of juveniles shall be sufficiently numerous to carry out their various duties effectively and shall include a sufficient range of specialists to meet the needs of the juveniles in their care.

131.1. Staff should normally be employed on a permanent basis.

131.2. Suitable volunteer workers shall be encouraged to contribute to activities with juveniles.

131.3. The authority responsible for implementing sanctions or measures remains accountable for ensuring that the requirements of the present rules are met even where other organisations or individuals are involved in the process of implementation, whether they are paid for their services or not.

132. Staff shall be employed in a way that ensures continuity in the treatment of juveniles.

133. Staff working with juveniles shall have appropriate conditions of work and pay that are commensurate with the nature of their work and comparable to the conditions of others employed in similar professional activities.

134.1. In order to enhance effective co-operation between staff working with juveniles in the community and in custodial settings, the possibility for those two groups to be seconded or to undertake training to work in the other setting shall be encouraged.

134.2. Budgetary constraints shall never lead to the secondment of persons who lack the necessary qualifications.

Part VII – Evaluation, research, work with the media and the public

I. Evaluation and research

135. Sanctions and measures designed for juveniles are to be developed on the basis of research and scientific evaluation.

136.1. For this purpose, comparative data shall be collected that allow the success and failure of both residential and community sanctions and measures to be evaluated. Such evaluation shall pay attention to recidivism rates and their causes.

136.2. Data shall also be collected on the personal and social circumstances of juveniles and on the conditions in institutions where juveniles may be held.

136.3. The authorities shall be responsible for the collection and collation of statistical data in a way that would allow regional and other comparisons.

137. Criminological research on all aspects of the treatment of juveniles by independent bodies shall be fostered by the provision of financial support and access to data and institutions. Research findings shall be published, also when commissioned by national authorities.

138. Research shall respect the privacy of juveniles and meet the standards of national and international data protection law.

J. Work with the media and the public

139.1. The media and the public shall be provided regularly with factual information about conditions in institutions for the deprivation of liberty of juveniles and of the steps taken to implement community sanctions and measures for juveniles.

139.2. The media and the public shall be informed about the purpose of community sanctions and measures and the deprivation of liberty of juveniles, as well of the work of the staff implementing these, in order to encourage a better understanding of the role of such sanctions or measures in society.

140. The responsible authorities shall be encouraged to publish regular reports on developments in institutions for juveniles and of the implementation of community sanctions and measures.

141. The media and members of the public with a professional interest in matters concerning juveniles shall be given access to institutions where juveniles are held, provided that the privacy and other rights of such juveniles are protected.

Part VIII – Updating the Rules

142. These Rules shall be updated regularly.

Appendix 3

Draft revised ad hoc terms of reference of the Council for Penological Co-operation (PC-CP)
relating to probation and aftercare services in the European criminal justice systems

Fact sheet

Name of Committee:

Council for Penological Cooperation (PC-CP)

Compliance with Resolution
Res(2005)47:

YES

Programme of Activities: project(s)

Project 2008/DG-HL/1430 “Criminal law and penal sanctions – prison systems and alternatives to imprisonment”

Project relevance:

Committee of Ministers’ decision (taken at the 925th meeting of the Ministers’ Deputies (CM/Del/Dec(2005)925/10.4, paragraph 5) on 3-4 May 2005) by which the CDPC is instructed to examine the issue of probation and post-prison assistance with a view to addressing the need to develop the role of probation services.

Implementation of Resolution No. 2 (paragraph 19) adopted by the 26th Conference of the European Ministers of Justice (Helsinki, 7-8 April 2005), by which the Committee of Ministers is invited to entrust the CDPC to examine the issue of probation and post prison assistance with a view to addressing the need to develop the role of probation services.

The outcome of the PC-CP’s work will be to elaborate a draft recommendation containing guidelines and standards regarding the functioning of probation and aftercare services in the European criminal justice systems.

The work is very timely as in a number of Council of Europe member states probation and aftercare services have been either recently established or are undergoing or intend to undergo restructuring and revision of their place and responsibilities.

Project added value:

The Council of Europe is the leading European organisation in the field of penitentiary questions and alternatives to imprisonment. So far, two very important texts have been adopted in the latter area, namely Recommendation n° R (92) 16 on the European Rules on community sanctions and measures and Recommendation n° R (97) 12 on staff concerned with the implementation of sanctions and measures. There is also the need to consider the structure and functioning of the services concerned with the implementation of these sanctions and measures and to give guidance to member states in that respect.

Financial information:

5 meetings, 9 members, 2 scientific experts. The ad hoc terms of reference will be carried out under the existing budget for the PC-CP (ref. Annex 4), which has an annual budget of €60 000 of which:
- € 12 000 per meeting for the reimbursement of the travel and per diem costs of 9 members and 3 scientific experts (the third expert assists in collecting and publishing the data included in SPACE I and SPACE II)

A separate budget is provided for:
- € 22 500 for interpretation;
- € 10 000 for translation;
- € 7000 for document production (including SPACE I and SPACE II)

Draft revised ad hoc terms of reference for the Council for Penological Co-operation relating to probation and aftercare services in the European criminal justice systems (PC-CP)

1.

Name of Committee:

Council for Penological Co-operation (PC-CP)

2.

Type of Committee:

Ad hoc Advisory Group

     

3.

Source of terms of reference:

Committee of Ministers, on the suggestion of the European Committee on Crime Problems (CDPC)

4.

Terms of reference:

 

Having regard to:

- the Declaration and Action Plan adopted by the Third Summit of Heads of State and Government of the Council of Europe (Warsaw, 16-17 May 2005), in particular concerning the issue related to the security of citizens;

- Resolution Res(2005)47 on committees and subordinate bodies, their terms of reference and working methods;

and based on the Council of Europe’s and other international standards and having regard to the latest developments in the field of probation and aftercare in Europe;

 

Under the authority of the European Committee on Crime Problems (CDPC), and in relation with the implementation of Project 2008/DG-HL/1430 “Criminal law and penal sanctions – prison systems and alternatives to imprisonment” of the Programme of Activities, the PC-CP is entrusted, in conformity with paragraph v. of its terms of reference:

i.

to address the issue of probation and aftercare services in Europe and the development of their tasks and structures. It should consider more specifically the following aspects:

- legal systems and structure of probation and aftercare services in the Council of Europe member states;

- tasks of the services at the pre-sentencing phase of the criminal procedure;

- tasks of probation services in diverting accused persons from prosecution;

- provision of supervision, help and assistance to the offender at every stage of the criminal proceedings, as well as during his or her deprivation of liberty and after release;

- work with specific groups of offenders (serious, violent or persistent offenders, foreigners, ethnic and linguistic minorities; women; sex offenders, elderly offenders);

- work with victims and with the families of the offenders;

- aftercare and the carrying out of community sanctions and measures;

- selection, recruitment and training of staff;

- relations with the judiciary, social service centres, victim support agencies, police, health services and penitentiary institutions, private companies, volunteers and local communities, religious and charitable organisations in planning and managing probation work (including questions relating to sharing of information and professional secrecy);

- scientific research and evidence based evaluation, multi-agency risk assessment panels;

- work with the media and the general public.

ii.

draft a recommendation on the role and place of probation and aftercare in Europe and its explanatory memorandum.

5.

Composition of the Committee:

 

The ad hoc terms of reference will be implemented by the PC-CP.

6.

Working methods and structures:

a.

In its work, the PC-CP will need the assistance of two scientific experts with specific knowledge of relevant legislation and legal practice, of international norms and conventions relating to probation and aftercare, as well as of recent developments in research and practice on probation in the different member states.

b.

The PC-CP will work in close consultation with the CDPC and its Bureau and will report to the CDPC at its plenary sessions on the state of its work so that full account is taken of possible views expressed by the CDPC delegations on the texts drafted before their approval by the CDPC.

7.

Duration:

 

These terms of reference will expire on 30 September 2009.

Appendix 4

Draft revised terms of reference of the Committee of Experts
on the Operation of European Conventions on Co-operation in Criminal Matters (PC-OC)

Fact sheet

Name of Committee:

Committee of Experts on the Operation of European Conventions on
co-operation in criminal matters (PC-OC)

Compliance with Resolution Res(2005)47:

YES

Programme of Activities: project(s)

Project 2008/DG-HL/1432 “Monitoring the operation of Conventions on
Co-operation in the criminal field”

Project relevance:

Implementation of:
The Declaration and the Action Plan adopted at the Third Summit of the Heads of State and Government of the Council of Europe (16 - 17 May 2005, Warsaw);
The Road Map for the implementation of the Action Plan, adopted by the Committee of Ministers and revised as at 28 September 2005 (document CM(2005)145 revised);

High level Conference of the Ministries of Justice and of the Interior
(9-10 November 2006, Moscow);

Resolution No. 1 on access to justice for migrants and asylum seekers, adopted by the 28th Conference of the European Ministers of Justice
(25-26 October 2007, Lanzarote).

Project added value:

Since 1982, the PC-OC has been monitoring the operation of the Council of Europe Conventions in the criminal field, and in particular the conventions on extradition, mutual legal assistance and transfer of sentenced persons, with a view to facilitating their implementation and keeping them up-to-date. Its activities fall in three categories:
a) Normative measures: Under the authority of the CDPC, the PC-OC elaborates binding and non-binding legal instruments, as well as other tools, such as explanatory notes or guides on national procedures. Currently, the PC-OC is preparing a draft Protocol on simplified extradition and working on the modernisation of the Extradition Convention of 1957.
b) Practical measures: The PC-OC develops practical tools to assist practitioners applying the conventions. In 2008, it launched a database on national procedures relating to extradition, mutual legal assistance and transfer of sentenced persons and a network of single points of contact dealing with the conventions.
c) Solutions to concrete problems: Members of the PC-OC, who apply the conventions on a daily basis, bring practical problems to the attention of the PC-OC plenary with a view to finding solutions, notably by sharing their experience in similar cases. The forum that the PC-OC provides has been instrumental in identifying problems at an early stage and avoiding conflicts between member States.
The added value and “the essential role of the PC-OC in monitoring the application of the Council of Europe conventions on international co-operation in criminal matters in order to find solutions to concrete problems, accelerate procedures and prevent disputes between States” has notably been recognised by the High-level Conference of the Ministries of Justice and the Interior (Moscow, 2006).

Financial information:

Two plenary meetings and two restricted group meetings (9 members) per year. The annual budget for the PC-OC is €118 000, of which:
€ 50 000 per plenary meeting for the reimbursement of travel and subsistence expenses of the 47 members + the Chair
€ 9 000 per restricted group meeting for the reimbursement of travel and subsistence expenses of 9 members

A separate budget is provided for:
€ 23 400 for interpretation
€ 15 000 for translation


Draft revised terms of reference of the Committee of Experts on the operation of European conventions in the penal field (PC-OC)

1.

Name of Committee:

Committee of Experts on the operation of European conventions on
co-operation in criminal matters (PC-OC)

2.

Type of Committee:

Committee of Experts

3.

Source of terms of reference:

Committee of Ministers, on the suggestion of the European Committee of Crime Problems (CDPC)

4.

Terms of reference:

 

Having regard to:

   

-

Resolution Res(2005)47 on committees and subordinate bodies, their terms of reference and working methods;

   

-

the Declaration and Action Plan adopted by the Third Summit of Heads of State and Government of the Council of Europe (Warsaw, 16-17 May 2005), and the High level Conference of the Ministries of Justice and of the Interior (Moscow, 9-10 November 2006).

   

-

Under the authority of the European Committee of Crime Problems (CDPC), and in relation with the implementation of Project 2008/DG-HL/1432 “Monitoring the operation of conventions on co-operation in the criminal field” of the Programme of Activities, the Committee is instructed to:

i.

monitor the operation of the Conventions on international co-operation in criminal matters with a view to facilitating their practical implementation;7

ii.

consider various steps and initiatives to improve the efficiency of international co-operation in criminal matters. This would be carried out in particular through various measures to improve practical
co-operation and, in conformity with instructions given by the CDPC,
8 through the development of normative texts;

iii.

follow developments in other international frameworks (e.g. United Nations, European Union) in the fields covered by these conventions and, where appropriate, propose measures likely to ensure their conformity with such developments;

iv.

follow the application of the European Convention on Human Rights with regard to international co-operation in criminal matters.

5.

Composition of the Committee:

5.A

Members

 

Governments of member states are entitled to appoint representatives in the field of criminal law and with the following qualifications: experience and/or expertise in the field of international co-operation in criminal matters.

The Council of Europe budget will bear the travel and subsistence expenses of one representative from each member state (two in the case of the state whose representative has been elected Chair).

5.B.

Participants

 

The following committees may each send a representative to meetings of the Committee, without the right to vote and at the charge of the corresponding Council of Europe budget sub-heads:

- the Steering Committee for Human Rights (CDDH);
- the Consultative Council of European Prosecutors (CCPE);
- the European Commission for the Efficiency of Justice (CEPEJ).

5.C

Other participants

i.

The European Commission and the Council of the European Union may send representatives to meetings of the Committee, without the right to vote or defrayal of expenses.

ii.

The states with observer status with the Council of Europe (Canada, Holy See, Japan, Mexico, United States of America) may send representatives to meetings of the Committee, without the right to vote or defrayal of expenses.

iii.

The following intergovernmental organisations may send representatives to meetings of the Committee, without the right to vote or defrayal of expenses:

- United Nations Office for Drugs and Crime (UNODC);
- United Nations Interregional Crime and Justice Research Institute (UNICRI);
- Office of the United Nations High Commissioner for Human Rights (OHCHR);
- International Criminal Court (ICC);
- International Criminal Tribunal for the former Yugoslavia (ICTY).

5.D

Observers

 

The following non-member state may send representatives to meetings of the Committee, without the right to vote or defrayal of expenses:

- Israel.

6.

Working methods and structures:

The Committee may, within its available budgetary resources, have recourse to consultants or scientific experts. It can organise hearings or exchanges of views with external experts/personalities.

The Bureau of the Committee is composed of the Chair and the Vice-Chair. The Chair and the Vice-Chair are elected for a term of one year. The terms of the Chair and of the Vice-Chair are renewable once.

In order to expedite the progress of its work, the Committee may entrust a limited number of Committee members with a specific task9.

7.

Duration:

 

These terms of reference will expire on 31 December 2010.

Appendix 5

Draft revised terms of reference of the Council for Penological Co-operation (PC-CP)

Fact sheet

Name of Committee:

Council for Penological Cooperation (PC-CP)

Compliance with Resolution
Res(2005)47:

YES

Programme of Activities: project(s)

Project 2008/DG-HL/1430 “Criminal law and penal sanctions – prison systems and alternatives to imprisonment”

Project relevance:

Implementation of:

The Declaration and the Action Plan adopted at the Third Summit of the Heads of State and Government of the Council of Europe
(16 - 17 May 2005, Warsaw);


The Road Map for the implementation of the Action Plan, adopted by the Committee of Ministers and revised as at 28 September 2005 (document CM(2005)145 revised);

Resolution No. 2 on the social mission of the criminal justice system – restorative justice (paragraph 19) adopted by the 26th Conference of the European Ministers of Justice (7-8 April 2005, Helsinki);

Resolution n° 2 on child-friendly justice (paragraph 6) adopted by the 28th Conference of the European Ministers of Justice (25-26 October 2007, Lanzarote, Spain).

Project added value:

The Council of Europe is the leading European organisation in the field of penitentiary questions and community sanctions and measures. Two very important texts have been adopted in this area, namely Recommendation n° R (92) 16 on the European Rules on community sanctions and measures and Recommendation Rec(2006) 2 on the European Prison Rules (EPR). The PC-CP is entrusted with several on-going tasks, namely to follow the implementation of the EPR and the European Rules on community sanctions and measures; to make proposals to the CDPC for revision of existing legal instruments; to re-examine on a regular basis the EPR; to prepare the Conferences of Directors of Prison Administration (CDAP) and to provide guidance with regard to the collection and publication of the annual penal statistics of the Council of Europe SPACE I and SPACE II. The PC-CP is also currently drafting two new recommendations, namely a recommendation on the European Rules for juvenile offenders and a recommendation on probation and aftercare services in Europe.

Financial information:

5 meetings, 9 members, 3 scientific experts. The PC-CP has an annual budget of €60 000 of which:
- € 12 000 per meeting for the reimbursement of the travel and per diem costs of 9 members and 3 scientific experts

A separate budget is provided for:
- € 22 500 for interpretation;
- € 10 000 for translation;
- € 7000 for document production (including SPACE I and SPACE II)

Draft revised terms of reference of the Council for Penological Co-operation (PC-CP)10;

the relevant case-law of the European Court of Human Rights;

the standards developed by the Committee for the Prevention of Torture and Inhuman and Degrading Treatment and Punishment (CPT);

the work of the Commissioner for Human Rights; and

the relevant recommendations of the Parliamentary Assembly12;

Under the authority of the CDPC and in relation with the implementation of Project 2008/DG-HL/1430 “Criminal law and penal sanctions – prison systems and alternatives to imprisonment” of the Programme of Activities, the PC-CP is instructed to:

i.
follow the development of European prison systems and of the services concerned with the implementation of community sanctions and measures;

ii.

iii.

examine the functioning and implementation of the European Prison Rules and the European Rules on community sanctions and measures as well as of other relevant Committee of Ministers recommendations, and make proposals for improving their practical application;

make proposals to the CDPC for revision of existing legal instruments and other legal acts in the penal field with a view to achieving coherence and comprehensiveness of the standards in the area;

iv.

re-examine on a regular basis the European Prison Rules and to propose to the CDPC their updating if necessary, as detailed in its rules of procedure;

v.

vi.

vii.

viii.

ix.

prepare new draft legal instruments and reports on penological matters on the basis of ad-hoc terms of reference;

formulate opinions on penological matters at the request of the CDPC and of member states;

while taking account of the progress of its on-going work, prepare, under its responsibility and within its field of competence, proposals to the CDPC for the programme of activities for the coming years;

prepare the Conferences of Directors of Prison Administration (CDAP) and choose rapporteurs;

provide guidance with regard to the collection and publication of the annual penal statistics of the Council of Europe SPACE I and SPACE II.

5.

Composition of the Committee:

5.A.

Members

 

The PC-CP shall be composed of 9 members, elected by the CDPC, with the following desirable qualifications: high-level representatives of prison administrations and/or of services entrusted with the implementation of community sanctions and measures; researchers or other experts having a thorough knowledge of penological questions.

The Council of Europe budget will bear their travel and subsistence expenses.

5.B.

Participants

i.

ii.

iii.

The following bodies may each send a representative to meetings of the PC-CP, without the right to vote and at the charge of the corresponding CoE budget sub-heads:

- European Committee on Crime Problems (CDPC);
- European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT).

The Parliamentary Assembly may send a representative/ representatives to meetings of the Committee, without the right to vote and at the charge of its administrative budget.

The Council of Europe Commissioner for Human Rights may send a representative/ representatives to meetings of the Committee, without the right to vote and at the charge of its administrative budget.

5.C

Other participants

i.

The member states of the Council of Europe may send a representative to the meetings of the Group, without the right to vote or defrayal of expenses.

ii.

The European Commission and the Council of the European Union may send representatives to meetings of the PC-CP without the right to vote or defrayal of expenses.

iii.

The following intergovernmental organisations may send representatives to meetings of the PC-CP without the right to vote or defrayal of expenses:

- United Nations Committee against Torture (CAT);
- United Nations Children’s Fund (UNICEF).

5.D.

Observers

 

The following non-governmental organisations may send a representative to meetings of the PC-CP without the right to vote or defrayal of expenses:

- The European Organisation for Probation (CEP);
- International Centre for Prison Studies ;
- International Association of Juvenile and Family Court Magistrates (IAJFCM).

6.

Working Methods and Structures

In its work, the PC-CP shall be assisted by three scientific experts with specific knowledge of relevant legislation and legal practice, of international norms and conventions relating to penitentiary issues and community sanctions and measures, as well as of the European Convention on Human Rights and its case law and of recent developments in research and practice in the different European member states.

The Council of Europe budget will bear the travel and subsistence expenses of the scientific experts.

7.

Duration

 

These terms of reference will expire on 31 December 2010.

Appendix 6

Draft revised terms of reference of the Committee of Experts
on the Evaluation of Anti-Money Laundering Measures and the financing of terrorism (MONEYVAL)

Fact sheet

Name of Committee:

Committee of Experts on the Evaluation of Anti Money Laundering Measures and Financing of Terrorism (MONEYVAL)

Compliance with Resolution Res 2005)47:

YES

Programme of Activities: project(s)

2008/DGHL/1431 Anti-money laundering and financing of terrorism monitoring mechanism (MONEYVAL)

Project relevance:

1. Third Summit Action Plan Chapter II.2.

2. Contribution to core values (Rule of Law and Parliamentary Democracy).

3. CM Decisions – on extensions of mandate.

4. Promotion and implementation of CoE standards. The MONEYVAL peer pressure evaluation mechanism produces comprehensive and detailed reports on the effectiveness of implementation of Council of Europe standards, Financial Action Task Force (FATF) standards, and European Union standards. These reports include ratings tables in respect of 49 international standards, focused recommendations and country-specific action plans covering all the steps which are required to ensure effective implementation of international anti-money laundering and countering the financing of terrorism (AML/CFT) standards. MONEYVAL recommendations are effectively followed up through regular progress reports and the imposition of ‘compliance enhancing procedures’, where necessary, to ensure that they are implemented.

Project added value:

The CoE/MONEYVAL is internationally recognised as the leading evaluation body in this area for 28 COE countries and Israel. As associate members of the Financial Action Task Force (FATF), MONEYVAL is an integral partner in a global network of assessment bodies, with responsibility for ensuring that AML/CFT standards are implemented by 29 important States in a critical region of the world.

MONEYVAL also works in partnership with the IMF and the World Bank, which accept MONEYVAL reports as the AML/CFT components in their own wider financial sector assessments in MONEYVAL countries.

MONEYVAL reports are regularly used as the blueprints for major Council of Europe technical assistance projects.

 

There is no duplication of work internally as MONEYVAL is the only COE monitoring mechanism working in this field.

Financial information:

Annual budget for activities (664.100 €), including:
3 Plenary meetings – 96 participants including chair and scientific experts (travel and subsistence expenses)
2 Bureau meetings – 5 participants (travel and subsistence expenses)
1 Training seminar - 35 participants (travel and subsistence expenses)
1 Typologies experts’ meeting (joint with FATF) – 35 participants (travel and subsistence expenses)
3 Typologies meetings – 4 participants (travel and subsistence expenses)
5 On-site evaluation visits – 4 participants (travel and subsistence expenses)
9 Pre-meetings on the draft evaluation country reports – 6 participants (travel and subsistence expenses)
4 FATF meetings – 2 participants (travel and subsistence expenses).

Separate budget lines cover MONEYVAL
- interpretation (47.200€)
- translation (119.400€)
- documents production (19.800€)

Draft revised terms of reference of the Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism (MONEYVAL)13

1.

Name of Committee:

Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism (MONEYVAL)

2.

Type of Committee:

Committee of Experts

3.

Source of terms of reference:

Committee of Ministers, on the suggestion of the European Committee on Crime Problems (CDPC)

4.

Terms of reference:

 

Having regard to:

- the Declaration and the Action Plan adopted at the Third Summit of Heads of State and Government (Warsaw, 16-17 May 2005), and particularly to the Heading II.2 of the Action Plan;

- Resolution Res(2005)47 on committees and subordinate bodies, their terms of reference and working methods;

 

- the importance of the fight against money laundering and terrorist financing and other forms of serious crime, for the purpose of which the Council of Europe has adopted a variety of instruments, in particular the 1990 Convention on Laundering, Search, Seizure and Confiscation of the proceeds from Crime (ETS No.141), and the 2005 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the proceeds from Crime and on the Financing of Terrorism (CETS No.198);

- the status of the Council of Europe/MONEYVAL since June 2006 as an Associate Member of the Financial Action Task Force on Money Laundering (FATF).

Under the authority of the European Committee on Crime Problems (CDPC), and in relation with the implementation of Project 2004/DG1/78 (which will subsequently become 2008/DG-HL/1431) “Anti-money laundering measure evaluation programme (MONEYVAL)” of the Programme of Activities, and bearing in mind the criteria set out in the document CM(2006)101 final, the Committee is instructed to:

 

Taking into account the procedures and practices used by the FATF, the IMF and the World Bank:

    i. elaborate appropriate documentation, including questionnaires for self- and mutual evaluations;

    ii. evaluate, by means of self- and/or mutual evaluation questionnaires (and/or other documentation agreed between MONEYVAL, the FATF and the IMF/World Bank representing a common AML/CFT methodology) and periodic on-site visits, the performance of those member states of the Council of Europe which are not members of the FATF14 (subject to paragraph 5(A)ii below)15 in complying with the relevant international anti-money laundering and countering terrorist financing standards, as contained in the recommendations of the FATF, including the Special Recommendations on Financing of Terrorism and Terrorist Acts and related Money Laundering, the 1988 United Nations Convention on illicit traffic in narcotic drugs and psychotropic substances, the United Nations Convention against Transnational Organised Crime, the 1999 United Nations International Convention for the Suppression of the Financing of Terrorism, the Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing and the relevant implementing measures and the1990 Convention on laundering, search, seizure and confiscation of the proceeds from crime, concluded within the Council of Europe, and, where necessary, provide assistance, upon request, to enable them to comply with the recommendations;

 

    iii. evaluate, by means of questionnaires (and/or other documentation agreed between MONEYVAL and the FATF and the IMF/World Bank representing a common AML/CFT methodology) and periodic on-site visits, the performance of those applicant states for membership of the Council of Europe which are not members of the FATF in complying with the international anti-money laundering and countering terrorist financing standards enumerated in the paragraph above, provided the following requirements are met: the applicant state must make the request in writing; the request must be accepted by the Committee of Ministers; the applicant state must undertake in its request to participate fully in the evaluation procedure and comply with the results and recommendations formulated by the MONEYVAL; and the applicant state must contribute to the cost of the evaluation procedure;

 

    iv. evaluate, by means of questionnaires (and/or other documentation agreed between MONEYVAL, the FATF and the IMF/World Bank representing a common AML/CFT methodology) and periodic on-site visits, the performance of the state of Israel, a non-member state of the Council of Europe, which has observer status with MONEYVAL and participates in the MONEYVAL mutual evaluation process. The participation of Israel in the mutual evaluation process implies that (a) it participates fully in the evaluation procedure and complies with the results and recommendations formulated by MONEYVAL and (b) it contributes to the cost of the evaluation procedure;

    v. adopt reports on each evaluated country’s situation as to:

      - the features and magnitude of money laundering, including typologies;
      - the efficiency of measures taken to combat money laundering and terrorist financing in the legislative, financial regulatory, law enforcement and judicial sectors;

 
 

    vi. where appropriate, make recommendations to the evaluated countries, with a view to improving the efficiency of their anti-money laundering and countering terrorist financing measures and to furthering international co-operation;

    vii. submit to the CDPC an annual summary of its activities and any recommendations it deems appropriate with a view to furthering the adoption or implementation of anti-money laundering measures.

5.

Composition of the Committee:

5.A

Members

i.

Governments of the following Council of Europe member states, not members of the FATF (subject to paragraph 5.A.ii below): Albania, Andorra, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Georgia, Hungary, Latvia, Liechtenstein, Lithuania, Malta, Moldova, Monaco, Montenegro, Poland, Romania, Russian Federation, San Marino, Serbia, Slovak Republic, Slovenia, “the former Yugoslav Republic of Macedonia” and Ukraine are, each, entitled to appoint three experts in the anti-money laundering and the financing of terrorism field and with the following desirable qualifications: senior officials and experts with responsibility for regulation or supervision of financial institutions, senior members of financial intelligence units, law enforcement or judicial bodies, with particular knowledge of questions related to money laundering, including national and international anti-money laundering instruments, (e.g. FATF recommendations).

ii.

iii.

Government of any Council of Europe member state referred to under 5A. i. above which has become a member of the FATF and thus would, save for this paragraph, cease to be a member of MONEYVAL, but decides to remain a member of the latter as well, is entitled to appoint three experts in the same field and with the same qualifications, as mentioned above in paragraph 5.A.i.. Such a state may also agree to submit to the evaluation process of MONEYVAL.

The Presidency of the Financial Action Task Force (FATF) is entitled to appoint two experts from FATF countries for two-year periods.

 

The Council of Europe’s budget16 bears the travel and subsistence expenses of three experts from each of the member states mentioned under 5.A.i. and 5.A.ii. These member states may send additional experts at their own expense.

5.B.

Participants

   

i.

The European Committee on Crime Problems (CDPC) may send one representative to meetings of the Committee, without the right to vote and at the charge of its administrative budget.

5.C

Other participants

i.

The European Commission and the Secretariat General of the Council of the European Union may send a representative to meetings of the Committee, without the right to vote or defrayal of expenses.

ii.

The following observer states with the Council of Europe may send a representative to meetings of the Committee, without the right to vote or defrayal of expenses:

- Canada;
- Holy See;
- Japan;
- Mexico;
- United States of America.

5.D

Observers

i.

The following intergovernmental organisations may send representatives to meetings of the Committee, without the right to vote or defrayal of expenses:

- Secretariat of the Financial Action Task Force on Money Laundering (FATF);
- ICPO-Interpol;
- Commonwealth Secretariat;
- International Monetary Fund (IMF);
- United Nations Drug Control Programme (UNDCP);
- United Nations Counter-Terrorism Committee (CTC);
- United Nations Crime Prevention and Criminal Justice Division;
- World Bank;
- European Bank of Reconstruction and Development (EBRD);
- Offshore Group of Banking Supervisors (OGBS);
- Organisation for Security and Co-operation in Europe (OSCE)
- Egmont Group;
- Eurasian Group on Combating Money Laundering and Terrorist Financing (EAG);
- Any other Financial Action Task Force Style Regional Body which is, or becomes, an Associate Member of the FATF on the basis of reciprocity.

5.E

Other observers

 

The following observers with the Committee may send representatives to the meetings of the Committee, without the right to vote or defrayal of expenses:

- Members of the FATF other than those referred to in 5.A.ii;
- Israel.

6.

Working methods and structures:

 

The term of office of the Chairman and Vice-Chairman shall be two years. It may be renewed once.17
The Committee may elect a Bureau to facilitate its discussions and adopt internal rules of procedure.
It will work with the assistance of four scientific experts, appointed by the Secretary General.
The Council of Europe’s budget bears their travel and subsistence expenses.

7.

Duration:

 

These terms of reference will expire on 31 December 2010.

1 This document has been classified restricted until examination by the Committee of Ministers.

2 It is recalled that these decisions were taken at the Deputies’ 1031st meeting on 2 July 2008 (item 10.3).

3 It is recalled that these decisions were taken at the Deputies’ 1031st meeting on 2 July 2008 (item 10.3).

4 CM(2008)78.

* Items marked with an asterisk indicate that discussions on this agenda item are likely to last or exceed 1 hour.

6 Room G02 (with interpretation) will also be available for discussions whenever necessary during the meeting of the Plenary.

7 These Conventions include ETS No. 24 (extradition, and Protocols ETS Nos 86 and 98), 30 (mutual legal assistance and Protocols ETS Nos 99 and 182), 51 (supervision of sentence), 52 (road traffic offences), 70 (validity of criminal judgments), 73 (transfer of criminal proceedings), 88 (deprivation of right to drive), 97 (information on foreign law), 101 (possession of firearms), 112 (transfer of sentenced persons and its Protocol ETS No. 167), 116 (compensation of crime victims), 156 (illicit traffic by sea).

8 On the basis of the elements presented, notably, in the following documents: Proposals of the PC-OC concerning normative and practical measures to improve the operation of relevant conventions (PC-OC (2008) 05 and 06), approved by the CDPC at its 56th Plenary Session (CDPC (2007) 23).

9 Article 14b of the Resolution Res(2005)47.

10 Adopted: see CM/Del/Concl(87)410/35(10) and CM(87)167, Addendum V
Revised: see CM(91)118, item I.B.9 and CM/Del/Concl(91)461/20a(9)
see CM/Del/Dec(94)516/10.4 and CM(94)112, item 3
see CM/Del/Dec(94)523, item 11.3
see CM/Del/Dec(95)551, item 11.2 (first part) concl10
see also CM/Del/Dec(96)572, item 10.1 and CM(96)99, Appendix VII

see CM/Del/Dec(97)600, item 10.2a and Appendix 18 (Appendix 19 for the revised rules of procedure)
see CM/Del/Dec(2006)967, item 10.3

1.

Name of committee:

Council for Penological Co-operation (PC-CP)

2.

Type of committee:

Ad hoc Advisory Group

3.

Source of terms of reference:

Committee of Ministers, on the suggestion of the European Committee on Crime Problems (CDPC)

4.

Terms of reference:

-

-

-

-

-

-

-

Having regard to:

Resolution Res(2005)47 on committees and subordinate bodies, their terms of reference and working methods;


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