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CM(2008)129corr  / 22 September 2008 

Ministers’ Deputies
CM Documents

CM(2008)129 2 September 20081
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1037 Meeting, 8 October 2008
10 Legal questions


10.4 European Committee on Legal Co-operation (CDCJ) -

a. Abridged report of the 83rd meeting (Strasbourg 4-6 June 2008)
b. Draft revised terms of reference of the European Committee on Legal Co-operation (CDCJ)
c. Draft terms of reference of the Group of Specialists on the Judiciary (CJ-S-JUD)

Item to be prepared by the GR-J on 23 September 2008

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BRIEF FOREWORD

1. The European Committee on Legal Co-operation (CDCJ) met in Strasbourg from 4 to 6 June 2008. The agenda appears in Appendix I. The list of participants is contained in the full meeting report2.

ITEMS SUBMITTED TO THE COMMITTEE OF MINISTERS FOR DECISION

2. The CDCJ invited the Committee of Ministers:

a. to adopt its draft Terms of Reference, revised in accordance with Resolution CM/Res(2005)47 (see Appendix II);

b. to adopt draft Terms of Reference for the Group of Specialists on the Judiciary (CJ-S-JUD) (see Appendix III);

c. to take note of the Final Report on Non-Criminal Remedies for Crime Victims and to bring it to the attention of the competent national authorities (see CM(2008)129 addendum);

d. to take note of its view that, should a Convention on domestic violence be prepared by the Council of Europe, its scope of application should include all victims of domestic violence, including women, men, children, the elderly and the handicapped;

e. to take note of the present report as a whole.

ITEMS SUBMITTED TO THE COMMITTEE OF MINISTERS FOR INFORMATION

3. the CDCJ invited the Committee of Ministers to take note of the CDCJ Action Plan for 2008-2010, which also shows the manner in which the CDCJ is fulfilling the Action Plan of the Warsaw Summit (See Appendix IV).

4. The CDCJ:

a. welcomed the fruitful exchange of views held with Ambassador Bruno GAIN, Chair of the Rapporteur Group on Legal Co-operation (GR-J) of the Committee of Ministers of the Council of Europe;

b. approved and fully endorsed the Final Report on Non-Criminal Remedies for Crime Victims prepared by the Group of Specialists on remedies for crime victims (CJ-S-VICT) and instructed the Secretariat to raise awareness of the guidelines contained in the Report (CM(2008)129 addendum);

c. decided the time was not yet ripe to propose the setting-up of a committee of experts to evaluate instruments in the field of public and private law, and invited national delegations to submit information on a selected number of conventions, as regards their intentions to ratify the latter and to indicate any obstacles opposing ratification, as well as to provide information on the conventions’ usefulness, and to report back to the Bureau of the CDCJ with written answers by 25 September 2008;

d. decided to entrust the Bureau of the CDCJ with pursuing its discussions on future priorities for the CDCJ and to propose new draft terms of reference of subordinate committees or groups to the Committee of Ministers when considered necessary, taking into account the guidelines of the Committee of Ministers contained in document CM(2006)101Final “Establishing criteria for projects”, and instructed the Secretariat to ensure that any projects proposed as future activities of the CDCJ be prepared in full conformity with the requirements of the Committee of Ministers;

e. welcomed the Conclusions of the Conference on “The ever-growing challenge on medical liability: national and European responses”, held in Strasbourg 2-3 June 2008, and entrusted its Bureau with discussing possible follow-up to be given to the Conclusions (see Appendix V) ;

f. welcomed the proposal of its Bureau to prepare, by the next Plenary meeting, a concept paper on priorities in administrative law, and invited all national delegations to provide to the Secretariat, by 25 September 2008, information and ideas on activities that could be carried out in this field;

g. entrusted its Bureau with the preparation of a Secretariat Memorandum on how best to fulfil its standard setting functions in the field of data protection ;

h. decided to entrust its Bureau with the examination and adoption of any requests for opinions or replies on its part.

5. The CDCJ considered:

a. the follow-up to Resolution No. 1 on Access to Justice for Migrants and Asylum Seekers as well as to Resolution No. 2 on Child Friendly Justice adopted at the 28th Conference of European Ministers of Justice (Spain, 25-26 October 2007) and expressed its thanks to the Spanish authorities for the successful organisation of the Conference;

b. the preparation of the 29th Council of Europe Conference of Ministers of Justice to take place on 17-19 June 2009 in Tromsö (Norway), approved the theme of the conference “Domestic Violence”, and entrusted its Bureau to fine-tune the themes to be addressed in the public and private law field and to prepare draft Resolutions dealing with the topic of domestic violence in a manner most relevant to the mandate and objectives of the CDCJ.

6. The CDCJ took note of:

a. the work achieved by the Group of Specialists on the independence, efficiency and role of judges (CJ-S-JUD) and of the complex constitutional matters that the Group, composed of only five specialists, had to deal with and decided to propose new terms of reference for an enlarged Group of Specialists to finalise the revision of Recommendation (94)12 on the independence, efficiency and role of judges (see Appendix III);

b. the on-going work of the Committee of Experts on Family Law (CJ-FA) and welcomed the progress made by its Working Parties on missing persons and presumption of death and on incapable adults;

c. the intentions of national delegations to sign the European Convention on the Adoption of Children (revised) when it is opened for signature on 27 November 2008;

d. the on-going work of the Group of Specialists on Nationality (CJ-S-NAT) and in particular the progress made in its preparation of a Report containing a draft recommendation on nationality and the child, and its explanatory memorandum, and the identification of themes for the 4th Conference on Nationality expected to be held in 2010;

e. the Memorandum of the Secretary General on Discrimination on Grounds of Sexual Orientation entitled “Possible action by the Committee of Ministers” and expressed its readiness to follow-up any decision that will be taken in this regard;

f. the decisions of the Committee of Ministers concerning the CDCJ and in particular of the approval by the Committee of Ministers of the terms of reference of its subordinate bodies3 for 2008;

g. the preparation of the Conference on Adoption of Children envisaged for 2009 and the postponement of the Conference on “Implementing Legal Solutions to Debt Problems”, Helsinki, 7-8 October 2008;

h. the Secretariat Memorandum on Co-operation with the European Union and suggested that a member of the Bureau accompany the Secretariat for its next meeting with counterparts in the European Commission;

i. the appointments of representatives of the CDCJ to other Committees and groups of experts;

j. Information concerning work of the other bodies of the Council of Europe relevant to the CDCJ’s work, namely the Steering Committee on Human Rights (CDDH), the European Committee on Migration (CDMG), the European Commission for the Efficiency of Justice (CEPEJ), the Consultative Council of European Judges (CCJE), the Committee of Experts on Terrorism (CODEXTER), the Consultative Committee on the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (T-PD), the Standing Committee on the European Convention on the Exercise of Children's Rights (T-ED), the Convention Committee on the Custody Convention (T-CC), the Multilateral Committee on the European Agreement on the Transmission on Applications for Legal Aid (T-TA);

k. the presentation of Ms Seda PUMPYANSKAYA, Director of Communication, on the Council of Europe’s Communication Strategy.

7. The CDCJ re-elected Mr Pekka NURMI (Finland) as Chair and Mr Séamus CARROLL (Ireland) as Vice-Chair for one year. It also elected Mr Milos HATAPKA (Slovak Republic) as a member of the Bureau for two years.

8. The CDCJ entrusted its Bureau to take a final decision concerning the dates of its next plenary meeting expected to take place in autumn 2009.

Appendix I

Agenda

1. OPENING OF THE MEETING

2. ADOPTION OF THE AGENDA

3. DECISIONS OF THE COMMITTEE OF MINISTERS

4. IMPLEMENTATION OF THE ACTION PLAN OF THE WARSAW SUMMIT

5. COMMUNICATION STRATEGY

6. EXCHANGE OF VIEWS WITH INVITED GUESTS

7. DRAFT TEXTS TO BE APPROVED BY THE CDCJ

Approval of the final Report on non-criminal remedies for crime victims

8. OPINIONS, REPLIES AND OTHER INFORMATION

9. FUTURE WORK OF THE CDCJ AND ITS SUBORDINATE BODIES

Priorities of the CDCJ for 2008-2010

9.1 Committee of Experts on Family law (CJ-FA)

9.2 Group of Specialists on Nationality (CJ-S-NAT)

9.3 Draft Recommendation on the independence, efficiency and role of judges

9.4 European Guidelines on Child Friendly Justice

9.5 Access to justice for migrants and asylum seekers

9.6 Defining priorities in the field of Administrative Law

9.7 Activity in the field of medical liability

9.8 Evaluation and operation of instruments of the CDCJ

9.9 Domestic Violence

10. WORK OF OTHER COMMITTEES OF DIRECT INTEREST TO THE CDCJ

11. CONFERENCES AND COLLOQUIES IN THE LEGAL FIELD

12. COOPERATION WITH THE EUROPEAN UNION

13. APPOINTMENT OF THE REPRESENTATIVES OF THE CDCJ TO OTHER COUNCIL OF EUROPE BODIES

14. ELECTION OF THE CHAIR, VICE-CHAIR AND MEMBERS OF THE BUREAU

15. CALENDAR OF FUTURE MEETINGS

16. OTHER BUSINESS

Appendix II

Revised terms of reference of the European Committee on legal co-operation (CDCJ)

Fact sheet

Name of Committee:

European Committee on Legal Co-operation (CDCJ)

Compliance with Resolution Res(2005)47:

Yes

Programme of Activities: project(s)

Line of action II.2 Strengthening Rule of Law Standards
Programme:  II.2.2 - Public and private law and implementation of standards
Project: 2008/DGHL/1427   Public and Private law reform and implementation of standards

Line of action I.3 – Human rights in Public Policy
Programme I.3.5 – Media, information society and data protection
Project 2008/DG-HL/1422 – Protection of individuals with regard to Automatic Processing of Personal Data (ETS n° 108)

Project relevance:

1. The Action Plan of the Third Summit of the Heads of State and Government of the Council of Europe, in particular items 3 and 4 from its Chapter I “Promoting common fundamental values: human rights, rule of law and democracy”.

2. Contribution to core values of the Council of Europe, namely by dealing with legal reforms in the field of public and private law.

3. Document CM(2006)60 of 6 May 2006, containing the CDCJ reply to the Committee of Ministers concerning its contribution to the implementation of the Warsaw Action Plan.

Political framework: the CDCJ is entrusted with the task of preparing, jointly with the European Committee on Crime Problems (CDPC) and the Steering Committee on Human Rights (CDDH), the Council of Europe Conferences of Ministers of Justice and ensure their follow-up in its field of competence.

Consolidation, promotion and implementation of standards:

The CDCJ, as a standard-setting body, has a vast area of responsibility in public and private law and a large number of specialised subordinate bodies entrusted with the task of preparing legal instruments, assessing the implementation and promotion of existing ones.

Project added value:

The Council of Europe, through the CDCJ, is the best placed organisation to address public and private law issues. Over the years it has prepared a considerable number of instruments which for some are unique at the European level and are key tools for the improvement of the laws and practices of the member states.

It is crucial to ensure the implementation and development of the great array of standards developed within the Council of Europe in the fields of competence of the CDCJ, such as family law, civil law and justice and nationality.

 

The CDCJ will be particularly careful to avoid duplication of work with other international organisations and in integrating its activities within the work and activities of other bodies of the Council of Europe thus developing appropriate feedback and links between the traditional standard-setting sector and the monitoring sector of the Council of Europe.

Financial information:

Number of meetings per year (estimated costs):

CDCJ Plenary meeting (all member states – 4 days): 47 member states : participation 48.700€
3 meetings of the Bureau (6 members – 2 days): 3 x 5.500€ a total of 16500€
Participation of Bureau in Ministerial Conference : 2.500€
Participation of CDCJ in other Committee's : 9.300€
Interpretation costs Plenary: 7.800€
Interpretation costs Bureau: 11.700€

Annual budget: approx 75 000 Euros, without recharged services (interpretation, translation and production of documents)

Revised terms of reference of the European Committee on Legal Co-operation (CDCJ)

1.

Name of Committee:

European Committee on Legal Co-operation (CDCJ)

2.

Type of Committee:

Steering Committee

3.

Source of terms of reference:

Committee of Ministers

4.

Terms of reference :

 

Having regard to:

· Resolution Res(2005)47 on committees and subordinate bodies, their terms of reference and working methods (adopted by the Committee of Ministers on 14 December 2005 at the 951st meeting of the Ministers' Deputies);

· The Action Plan of the Third Summit of the Heads of State and Government of the Council of Europe, in particular items 3 and 4 from its Chapter I;

· Resolutions of the conferences of the Council of Europe Conferences of Ministers of Justice in its field of competence;

· Decisions of the Committee of Ministers of the Council of Europe in the field of legal co-operation;

· Council of Europe conventions, resolutions and recommendations in its field of competence.

 

Within the framework of the “Programme of Activities”, under Programmes I.3.5 Media, information society and data protection, and II.2.2 Public and Private law and implementation of standards, the Committee is instructed to:

i.

Define the policy of legal intergovernmental co-operation and fixing priorities in the fields of public and
private law;

ii.

Promote law reform and co-operation in:

    - administrative law;
    - civil law;
    - data protection;
    - family law;
    - information technology and law;
    - justice and the rule of law;
    - nationality;
    - refugees and asylum seekers.

iii.

Carry out these tasks through:

· the supervision and organisation of the work of its committees, groups of experts, colloquies and conferences;

· the adoption of draft conventions, agreements, protocols or recommendations;

· the monitoring of the functioning and implementation of the international instruments coming within its field of competence and assistance to states for specific problems and co-operation with the appropriate convention committees;

· the preparation, jointly with the European Committee on Crime Problems (CDPC) and the Steering Committee for Human Rights (CDDH), of Council of Europe Conferences of Ministers of Justice, and ensure their adequate follow-up;

· the adoption, for the Committee of Ministers, of opinions on legal matters coming within its competence;

· the adoption, for the Committee of Ministers, of proposals for the programme of activities of the CDCJ;

· co-operation with other Council of Europe bodies in particular with the European Committee on Crime Problems (CDPC), the Consultative Council of European Judges (CCJE), the European Commission for the Efficiency of Justice (CEPEJ), the Committee of Experts on Terrorism (CODEXTER), the Steering Committee on Bioethics (CDBI), the European Health Committee (CDSP), the Steering Committee for Human Rights (CDDH) and the European Committee on Migration (CDMG);

· assistance to states to carry out appropriate reforms:

    - with regard to their domestic laws;
    - to implement international instruments, including, where appropriate, reforms to ensure compliance with the provisions of the European Convention on Human Rights;
    - to take account, where appropriate, of “areas of concern” relating to the compliance with commitments accepted by member states of the Council of Europe, proposals by the Parliamentary Assembly, proposals by the European Ministers of Justice, proposals by the Venice Commission, case law of the European Court of Human Rights;

· obtaining information by means of:

    - publications (in particular publications which present, in a consolidated form, the European
    achievements in each field of activity);
    - conferences and colloquies;
    - networks of specialists on legal matters coming within the competence of the CDCJ;

· the development of co-operation between member states by means of:

    - networks of specialists;
    - specific bodies, such as central authorities, set up under conventions;

iv.

While taking account of the progress of this work, prepare, under its responsibility, proposals for the Programme of Activities for the coming years.

5.

Composition of the Committee:

5.A

Members

 

Governments of member states are entitled to appoint representatives of the highest possible rank in the legal field and with the following desirable qualifications: senior national officials, senior officials in the Ministry of Justice or any other Ministry and/or specialists in the field.

The Council of Europe 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

i.

The CDCJ may request one of its subordinate committees to be represented at one of its meetings.

ii.

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 European Committee on Crime Problems (CDPC);
    - the European Commission for the Efficiency of Justice (CEPEJ);
    - the Consultative Council of European Judges (CCJE);
    - the Committee of Experts on Terrorism (CODEXTER);
    - the Steering Committee on Bioethics (CDBI);
    - the European Health Committee (CDSP);
    - the Steering Committee for Human Rights (CDDH);
    - the European Committee on Migration (CDMG).

iii.

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

iv.

The Conference of INGOs of the Council of Europe may send representatives to meetings of the
Committee, without the right to vote and at the charge of the supervisory body.

5.C

Other participants

i.

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

ii.

The non-member 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:

    - the United Nations International Law Commission (ILC);
    - the United Nations Commission on International Trade Law (UNCITRAL);
    - the International Institute for the Unification of Private Law (UNIDROIT);
    - the Hague Conference on Private International Law (HCCH);
    - the Organisation for Economic Co operation and Development (OECD);
    - the Office for Democratic Institutions and Human Rights (OSCE-ODIHR);
    - the Asian African Legal Consultative Organisation (AALCO);

- the International Commission on Civil Status (CIEC);

    - the United Nations High Commissioner for Refugees (UNHCR).

5.D

Observers

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

- Belarus*;

- Council of Bars and Law Societies of Europe (CCBE) (until the consideration of renewal of its observer status to the CDCJ).

6.

Working methods and structures:

The Bureau of the Committee comprises six members.

To obtain and share information the CDCJ may engage, within its budgetary limits, consultants, scientific experts and organise hearings, seminars, conferences and colloquies.

7.

Duration:

The present terms of reference will expire on 31 December 2010.

Appendix III

Draft terms of reference of the Group of specialists on the judiciary (CJ-S-JUD)

Fact sheet

Name of Committee:

Group of Specialists on the Judiciary (CJ-S-JUD)

Compliance with Resolution Res(2005)47:

Yes

Programme of Activities: project(s)

Line of action II.2 Strengthening Rule of Law Standards
Programme:  II.2.2 - Public and private law and implementation of standards
Project: 2008/DGHL/1427   Public and Private law reform and implementation of standards

Project relevance:

1. The Action Plan of the Third Summit of the Heads of State and Government of the Council of Europe, in particular items 3 and 4 from its Chapter I “Promoting common fundamental values: human rights, rule of law and democracy”.

2. Direct follow up to the Action Plan prepared for the CDCJ by the CEPEJ in 2005 which aim was to identify areas where there was a need for new legal standards in the field of justice, and which conclusions were based on the evaluation of CEPEJ of the Opinions prepared by the CCJE.

3. Contributes to promoting common fundamental values, namely the development of the Rule of law.

4. CM Decisions: CM/Del/Dec(2006)967/10.2 item 4 concerning the CDCJ’s contribution to the implementation of the Action Plan of Third Summit, in particular its future priorities.


5. Political justification/framework: the CJ-S-JUD contributes to fulfilling the decision of the Third Summit to make proper use of the opinions given by the Consultative Council of European Judges (CCJE).


6. Consolidation, promotion, implementation of Council of Europe standards: the CJ-S-JUD will pursue the examination of the proposal to amend Recommendation No. R(94)12 on the independence, efficiency and role of judges which was started by the Group of Specialists on the independence, efficiency and role of judges (CJ-S-JUST) and will undertake new challenges identified by the CDCJ.

7. Timeliness of project: A thorough revision of the Recommendation n° R (94)12 on the independence, efficiency and role of judges and its Draft Explanatory Memorandum needs a constructive and open discussion by a larger number of specialists. This will permit the CJ-S-JUD to have an overview of the main legal systems in Europe and to take account of the differences in the member states before proposing important constitutional and legislative changes.

Project added value:

The subjects dealt with in the draft Recommendation touch rule of law issues which lie at the core of the values of the Council of Europe and have constitutional importance. The new draft Recommendation will add significant value to the future work of the Council of Europe in this important field.

Financial information:

3 meetings of the Group in 2009 (17 persons - 3 days): € 16 900 for each meeting which includes travel and subsistence expenses for experts.

In addition, interpretation costs for a three-day meeting Strasbourg amount to:
€ 5 850.

Draft Terms of Reference for a Group of Specialists on the Judiciary (CJ-S-JUD)

1.

Name of Group:

Group of Specialists on the Judiciary (CJ-S-JUD)

2.

Type of Group:

Ad hoc Advisory Group

3.

Source of terms of reference:

Committee of Ministers, upon proposals of the European Committee on Legal Co-operation (CDCJ)

4.

Terms of reference:

 

Having regard to:

- Resolution Res(2005)47 on committees and subordinate bodies, their terms of reference and working methods (adopted by the Committee of Ministers on 14 December 2005 at the 951st meeting of the Ministers' Deputies);

- 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 necessity of pursuing standard-setting in the field of justice;

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

- The Action Plan for follow-up to Opinions of the Consultative Council of European judges (CCJE) adopted by the European Commission for the Efficiency of Justice (CEPEJ) at its 6th Plenary meeting (7-9 December 2005);

- The Memorandum of Understanding between the Council of Europe and the European Union, signed in May 2007;

- The work of the Group of Specialists on the independence, efficiency and role of judges (CJ-S-JUST) prepared in 2007 and the comments received by national delegations and the CCJE to this work;

- the guidance provided by the CDCJ during its 83rd plenary meeting on 4-6 June 2008, on the future work of the CJ-S-JUD.

 

Under the authority of the European Committee on Legal Co-operation (CDCJ), and in relation with the implementation of Project 2008/DG-HL/1427 “Public and Private law reform and implementation of standards” of the Programme of Activities, the Group is instructed to:

draw up a Recommendation with an explanatory memorandum, which would inter alia update “the Recommendation R(94)12 on the independence, efficiency and role of judges”, focusing on national courts, in the light of the developments which have taken place since the adoption of Recommendation n° R (94) 12 and on the other hand would strengthen and enrich the scope of the Recommendation.

Particular attention shall also be paid to:

    - the role of independent authorities in the court administration;
    - the status and responsibilities of judges with respect to the development of modern societies;
    - the balance between the independence and efficiency of the judiciary;
    - the principle of irremovability of judges;
    - the liability of judges from the point of view of the independence of judges;
    - the training of judges and resources allocated to them.

5.

Composition of the Group:

5.A

Members

 

The Group shall be composed of 15 specialists with a thorough knowledge of questions relating to the functioning of judicial systems and chaired by one member of the CDCJ, all appointed by the Secretary General.

The Council of Europe budget will bear the travel and subsistence expenses of the 16 above-mentioned members of the Group.

5.B

Participants

i.

ii.

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

- Consultative Council of European Judges (CCJE);
- European Commission for the efficiency of Justice (CEPEJ);
- The European information exchange network between persons and bodies in charge of the training of judges and public prosecutors (Lisbon network).

The Parliamentary Assembly of the Council of Europe may send representatives to meetings of the Group, without the right to vote and at the charge of its administrative budget.

5.C

Other participants

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.

 

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

States with observer status with the Council of Europe (Canada, Holy See, Japan, Mexico, United States) may send a representative to the Group, without the right to vote or defrayal of expenses.

5.D

Observers

 

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

- European Association of Judges (EAJ);
- Association “European Judges for democracy and freedom” (MEDEL);
- Association of European Administrative Judges.

6.

Working methods and structures:

 

To fulfil its terms of reference and within the budgetary resources available, the Group may use consultants and organise hearings and consultations.

The Group of Specialists shall hold 3 meetings of 3 days (16 members, 1-2 consultant(s)).

7.

Duration:

 

These terms of reference will expire on 31 December 2009.

Appendix IV

CDCJ Action Plan for 2008-2010

Executive summary

The CDCJ, as a standard-setting body, has a wide scope of competence in public and private law and a large number of specialised subordinate bodies. As the Plenary of the CDCJ instructed the Bureau of the CDCJ to set its future priorities, the present document sets out the CDCJ’s Action Plan for 2008-2010.

In identifying its priorities for the next three years, the CDCJ has taken into account the Action Plan adopted by the Heads of State and Government of the Council of Europe at their Third Summit (Warsaw, 16 - 17 May 2005), the conclusions of the 28th Conference of European Ministers of Justice (Lanzarote, 25-26 October 2007) as well as the case-law of the European Court of Human Rights. Following a three-fold approach, the Action Plan presents the planned work of the CDCJ according to the nature of its activities namely: standard-setting (Pillar 1), implementation and monitoring of standards (Pillar 2), and co-operation and campaigns (Pillar 3).

Under Pillar 1, the principal themes to be addressed by the CDCJ in 2008-2010 lie in the areas of family law, rule of law (including administrative law), civil law and access to justice, and nationality.

In the field of family law, the CDCJ and its subordinate body, the CJ-FA, will be dealing with modern challenges such as incapable adults and self-determination, missing persons and the presumption of death, and the rights and legal status of the child being brought up in various family patterns.

Bringing the rule of law, justice and civil law further, the CDCJ will pursue the revision of Recommendation No. R (94)12 on independence, efficiency and role of judges in order to tackle the new challenges faced by national judicial systems and propose alternative means for settling disputes in the technical field of medical liability. European Guidelines on child-friendly justice will be drafted under the leadership of the CDCJ, bringing the child to the forefront of European policy-makers. Migrants and asylum seekers will also be at the heart of the action as the CDCJ aims at defining common standards to enhance access to justice for vulnerable groups. Wishing to combat statelessness of children, the CDCJ intends to make this topic one of its top priorities and, to that end, will prepare a Recommendation aiming at preventing and reducing this phenomenon in member states. New priorities in this field will also be identified.

Under pillar 2, the CDCJ will follow the work of the conventional committees in the fields of data protection, family law and justice, and will promote existing standards elaborated by the CDCJ and its subordinate bodies, where relevant. Particular attention will be paid to the promotion of the recently adopted instruments, in particular the European Convention on the Adoption of Children (revised).

Action Plan of the CDCJ for 2008-2010

List of abbreviations

CCJE: Consultative Council of European Judges
CDBI: Steering Committee on Bioethics
CDCJ: European Committee on Legal Co-operation
CDDH: Steering Committee for Human Rights
CDMG: European Committee on Migration
CDPC: European Committee on Crime Problems
CDSP: European Health Committee
CEPEJ: European Commission for Efficiency of Justice
CJ-FA: Committee of Experts on Family Law
CJ-OI: Committee of Experts on the Operation of instruments in public and private law
CJ-S-JUD: Group of Specialists on the judiciary
CJ-S-JUST: Group of Specialists on the independence, efficiency and role of judges
CJ-S-MED: Group of Scientific Experts on Medical Liability
CJ-S-NAT: Group of Specialists on nationality
CJ-S-VICT: Group of Specialists on remedies for crime victims
CM: Committee of Ministers
CODEXTER: Committee of Experts on Terrorism
CoE: Council of Europe
CPT: European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
DG III: Directorate General of Social Cohesion
EC: European Commission
ECtHR: European Court of Human Rights
EJTN: European Judicial Training Network
EU: European Union
EYC: European Youth Centre
FRA Fundamental Rights Agency
HCCH: Hague Conference on Private International Law
ICCS: International Commission on Civil Status
INGOs: International Non-Governmental Organisations
IOM: International Organisation for Migration
ISS: International Social Service
NGO: Non-Governmental Organisations
PACE: Parliamentary Assembly of the Council of Europe
T-CC: Convention Committee on the Custody Convention
T-ED: Standing Committee of the Convention on the exercise of children’s rights
T-PD: Consultative Committee of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data
UNHCR: Office of the United Nations High Commissioner for Refugees

Introduction

1. The European Committee on Legal Co-operation (CDCJ), being entrusted with the task of fixing its priorities in the field of public and private law, will propose activities for the years 2008-2010.

2. In setting its priorities in accordance with its terms of reference, the CDCJ took primarily into consideration the Action Plan adopted during the Third Summit of Heads of State and Government of the Council of Europe (Warsaw, 16-17 May 2005), thus pursuing the implementation of this Action Plan, as detailed below. An important impetus to the work of the CDCJ is also to prepare the follow-up to be given to the Council of Europe Conferences of Ministers of Justice.

3. At its 1006th meeting on 10 October 2007, the Committee of Ministers took note of the first CDCJ Action Plan for 2007-2008. At the time, several delegations welcomed this initiative of the CDCJ.

As laid down in its specific terms of reference5, the European Committee on Legal Co-operation (CDCJ) has the task of:

“i. Defining the policy of legal intergovernmental co-operation and fixing priorities in the fields of public and private law;

ii. Promoting law reform and co-operation in:

    - administrative law;
    - civil law;
    - data protection;
    - family law;
    - information technology and law;
    - justice and the rule of law;
    - nationality;
    - refugees and asylum seekers;”

4. According to the Warsaw Action Plan, the Council of Europe’s working methods and priorities are being reviewed. The CDCJ has noted that there is an increased demand for momentum in the required output of Committees, in a shorter period of time. It has also noted that with a view to fulfilling the requirements of the Warsaw Action Plan and to improving working methods in a more cost-effective way, the Committee of Ministers is providing Committees with terms of reference that are shorter in duration and which containin less members than previously.

5. The CDCJ, as a standard-setting body, has a vast area of responsibility in public and private law and a large number of specialised subordinate bodies. In the past years, the CDCJ has suspended work of some of these subordinate bodies or limited the participation of delegations to these bodies. The CDCJ has also, with a view to responding to budgetary restraints, set up Groups of Specialists, with a limited number of participants, which enables the CDCJ to target specialised expertise and stimulate reflection on a specific topic without having to bring together subordinate bodies, with the participation of all member states, which for evident reasons is more costly.

6. The CDCJ nevertheless wishes to bring to the attention of the Committee of Ministers the difficulties induced by this current trend, leading to the adoption, in restricted groups, of instruments which do not necessarily reflect common legal standards and are not subject to the consensus of the wider forum composed of all the delegations of the CDCJ. The Plenary of the CDCJ, which is now meeting on one occasion per year, is consequently under pressure to adopt the texts prepared by its Groups of Specialists.

7. An illustration of this can be found in the difficulties faced by the Group of Specialists on the independence, efficiency and role of judges (CJ-S-JUST) in revising Recommendation No. R(94)12 on the independence, efficiency and role of judges. Given the constitutional dimension of the proposed changes, it became necessary for the Bureau of the CDCJ to request further guidance from the Plenary on a number of substantial issues before submitting the draft text for adoption, as well as the setting-up of an enlarged Group of Specialists in order to take into account the wide variety of the European judicial systems.

PRIORITY AREAS OF WORK

8. At its 81st meeting (7-9 April 2008), the Bureau of the CDCJ, having been instructed by the Plenary to finalise the CDCJ priorities for the future, considered that the pursuit of activities given the current situation of the Council of Europe is a challenge and decided to identify future priorities under a three-fold approach, reflecting the various types of work to be carried out:

    Pillar 1 Standard-setting
    Pillar 2 Implementation and monitoring of standards
    Pillar 3 Co-operation and campaigns

9. These three pillars correspond to the tasks entrusted to the CDCJ in its terms of reference, which refer to the adoption of different instruments, to the monitoring of the functioning and implementation of the international instruments coming within its field of competence, and to the assistance to states and the development of co-operation between member states.

10. Under these pillars, several awareness-raising seminars will be organised on various topics, in particular in the field of family law.

11. Within its wide range of competencies, the CDCJ has identified a number of topics of particular political and legal interest which in its view should be given priority for future activities by the Council of Europe in 2008-2010.

12. It should be underlined that the priority activities listed hereafter will be carried out subject to the availability of the necessary financial and human resources. Furthermore, any activity which could not be dealt with in the scheduled period would be re-considered when identifying priorities of the subsequent mandate.

13. To ensure the implementation and development of the great array of standards developed within the Council of Europe in these fields, it is crucial to identify priorities and avoid duplication in co-operation with other bodies of the Council of Europe, as well as European and international organisations. One of the objectives of the CDCJ will be to establish close co-operation with the European Union to identify areas where the two organisations are complementary. The recently signed Memorandum of Understanding between the Council of Europe and the European Union is paving the way for a more constructive and focused approach to this co-operation. In January 2008, the Secretariat of the CDCJ held a meeting with its counterparts in the European Commission (EC) with a view to identifying common issues of concern, which will be taken into account in the CDCJ activities. In particular, the possibility of organising a Joint Conference between the Council of Europe and the EC was raised during the meeting. Continutation of good co-operation with the United Nations High Commissioner for Refugees will move forward the work in the field of refugees and asylum seekers at a pan-European level. The principal themes to be addressed in 2008-2010 in the field of public and private law lie in the areas of civil law, justice and the rule of law, family law, nationality, administrative law, data protection and information technologies, and refugees and asylum seekers.

14. The 28th Conference of the European Ministers of Justice (Lanzarote, 25-26 October 2007) has naturally been taken into consideration in the future priorities of the CDCJ and a number of activities proposed for 2008-2010 are a direct follow-up to this Conference. Any resolutions of future Council of Europe Conferences of Ministers of Justice – such as the 29th Conference to be held in Norway in June 2009 – or the conclusions of the high-level meeting of the Ministries of the Interior envisaged to take place in 2010 will also be taken into consideration.

PILLAR I – STANDARD-SETTING

15. Standard-setting constituted so far one of the main tasks of the CDCJ which has produced over the years a considerable number of instruments for the Committee of Ministers. The creation of new standards is a key aspect of the improvement of the laws and practices of the member states and the CDCJ will continue to provide a broad overall examination and assessment of proposals for new instruments that have been prepared within its field by experts, working parties or other subordinated committees, and where necessary will work on the drafting of new legal instruments.

16. Furthermore, the CDCJ will pay particular attention to the findings and recommendations of the monitoring and evaluation bodies of the Council of Europe, thus identifying topics for which standards have to be set or reinforced. The monitoring of the Committee of Ministers in respect of the case-law of the European Court of Human Rights (ECtHR) will in that respect be of particular importance. Appropriate feedback and links between the traditional standard- setting sector and the monitoring sector will to this end have to be established and synergies developed.

17. In 2008, 2009 and 2010 priority standard-setting work will be carried out in the following areas: family law, civil law, justice and rule of law as well as nationality.

18. Due to the relevance of the case-law of the ECtHR to the fields of competence of the CDCJ, the CDCJ wishes to build on the past and on-going fruitful co-operation between the Directorate General of Human Rights and Legal Affairs (DG-HL) and the Registry of the ECtHR. In its prioritisation exercise, the CDCJ is seeking the constructive input and support of the Court with a view to identifying lacunas in the CoE member states and thereby the CDCJ’s priorities of work, in particular as far as the monitoring of legal instruments is concerned.

19. In the field of administrative law, a constructive reflection on the identification of activities to be carried out will be undertaken in 2008 and early 2009, with a view to proposing a coherent strategy for taking the work in the field of administrative law further.

Family Law

20. The Council of Europe has in the past been the leading organisation in standard setting in the field of family law, and should remain for the future, focusing for the years 2008-2010 on modern challenges such as problems of incapacity, missing persons, the elderly, the legal status of the child and problems of other vulnerable groups.

21. The European Union has produced a number of instruments in the field of family law and links are being established in order to ensure complementarity of the work of the two organisations.

22. It is planned that a plenary meeting of the Committee of Experts on Family Law (CJ-FA) will take place in the first half of 2009 with a view to adopting the work achieved in 2008, and to identify future work for 2009-2010. In connection with the plenary meeting, a European Conference on Family Law will be prepared to discuss inter alia family law matters related to child-friendly justice and the legal status of children in today’s families.

INCAPABLE ADULTS

Background information: In 2008, the CJ-FA is entrusted with the task of preparing a draft recommendation with an explanatory memorandum on incapable adults and self-determination.

Expected outcome

Year 1 (2008)

Year 2 (2009)

Year 3 (2010)

Legal instrument on incapable adults and self-determination.

Preparation of a draft recommendation by a Group of Specialists, based on the study approved by the CJ-FA in 2007.

Adoption of the draft recommendation during a Plenary meeting of the CJ-FA in the first half of 2009.

Follow-up on the recommendation encouraging its implementation.

Internal partners: CDDH, CDPC

External partners: HCCH, EC

Relevance: The increasing aging of the population and the particular situation of elderly persons who are more and more in need of legal assistance underlines the urgent need to address the issue of incapable adults. The possibility for the Council of Europe to participate in a conference to be organised in Lille on 17 September 2008, on incapable adults, under the French presidency of the EU could be the first step for a future collaboration between the EU and the Council of Europe in this field.

MISSING PERSONS AND PRESUMPTION OF DEATH

Background information: In 2008, the CJ-FA is entrusted with the task of preparing a draft recommendation with an explanatory memorandum on the topic of missing persons and the presumption of death following, in particular, terrorist attacks and natural disasters.

Expected outcome

Year 1 (2008)

Year 2 (2009)

Year 3 (2010)

Legal instrument on missing persons and the presumption of death.

Preparation of a draft recommendation by a Group of Specialists, based on the report to be finalised by the CJ-FA in 2008.

Adoption of the draft recommendation during a Plenary meeting of the CJ-FA in the first half of 2009.

Follow-up on the recommendation encouraging its implementation.

Internal partners: CDDH, CDPC, CODEXTER

External partners: ICCS

Relevance: In Europe, there is currently no instrument on missing persons. The preparation of a new legal instrument on missing persons and the presumption of death is inter alia linked to the fight against terrorism. The consequences for the spouse and relatives of a missing person can be catastrophic since, in some countries, a death certificate is only delivered 20 years after the person has disappeared. The CDCJ considers that it would be of an utmost importance to clarify this legal uncertainty.

RIGHTS OF CHILDREN IN VARIOUS FORMS OF MARITAL AND NON-MARITAL PARTNERSHIPS AND CO-HABITATION

Background information: The European Convention on the Legal Status of Children born out of Wedlock (1975, ETS No. 85) aimed at assimilating the legal status of children born out of marriage with that of children born in marriage but considerable changes have occurred since then and the overall situation of the rights of children in various forms of marital and non-marital partnerships and co-habitation should be examined.

Expected outcome

Year 1 (2008)

Year 2 (2009)

Year 3 (2010)

Legal instrument proposing solutions with the view to improving the legal status of children being brought up in various forms of marital and non-marital partnerships and cohabitation.

Preparation of a feasibility study concerning the drafting of a legal instrument on the rights and legal status of children being brought up in various forms of marital or non-marital partnerships and co-habitation and putting forward proposals concerning the possible follow-up to be given to the study.

Depending on the outcome of the feasibility study, possible drafting work of an instrument by a Group of Specialists.

 

Internal partners: DG III, Programme “Building a Europe for and with Children”, CDDH, CDPC

External partners: EC, ICCS

Relevance: The growing number of children born outside of marriage throughout Europe underlines the urgent need to address this issue in order to ensure a uniform recognition and protection of children’s rights.

FORMS OF MARITAL AND NON-MARITAL PARTNERSHIPS AND COHABITATION AND DISCRIMINATION ON GROUNDS OF SEXUAL ORIENTATION OR GENDER IDENTITY

Background information: Following a memorandum prepared by the Secretary General on Discrimination on grounds of sexual orientation: “Possible action by the Committee of Ministers”, the Committee of Ministers entrusted the CDCJ with examining the topic of various forms of marital and non-marital partnerships and cohabitation with a view to identifying possible measures to avoid discrimination on grounds of sexual orientation or gender identity.

Expected outcome

Year 1 (2008)

Year 2 (2009)

Year 3 (2010)

Measures to avoid discrimination on grounds of sexual orientation or gender identity

Examination by a consultant of the topic of various forms of marital and non-marital partnerships and cohabitation with a view to identifying possible measures to avoid discrimination on grounds of sexual orientation or gender identity

   

Internal partners: Office of the Commissioner for Human Rights

External partners: FRA

Relevance: There is a notable lack of intergovernmental work on the issue of discrimination on grounds of sexual orientation, which stands in stark contrast to the activities of the Court, the Assembly, the Congress, the Commissioner and the Secretary General. The matter is a topical issue of growing concern in Europe and there are expectations on the Council of Europe, as it is the leading human rights organization in Europe, and on the Committee of Ministers, being the central decision-making body of the Council of Europe, to address this issue.

The rule of law, access to justice and civil law

23. The rule of law, access to justice and civil law being of the utmost importance for the Council of Europe, and the need for further progress in the development of the legislations and practices of the member states being highlighted by the competent bodies, the CDCJ will, in 2008-2010, pursue its standard-setting activities in these areas. The CDCJ will in particular provide concrete follow-up to the 28th Conference of European Ministers of Justice (Lanzarote, 25-26 October 2007) by preparing European Guidelines on Child-friendly justice and identifying the need for new standards, enhancing access to justice for migrants and asylum seekers. The need for more alternative dispute resolution systems will also be examined.

24. A concept paper on future priorities in the field of administrative law will be prepared by the Secretariat in co-operation with the Chair of the CDCJ. An important first step could be to review the handbook “The Administration and you”, which was published at the end of the 1990s.

25. Following the Conference entitled “The ever-growing challenge of medical liability: national and European responses” which was organised in Strasbourg in June 2008, the CDCJ decided to instruct its Bureau to assess the needs for new standards in this field.

ENHANCING THE INDEPENDENCE OF THE JUDICIARY

Background information: The Bureau of the CDCJ, pursuing examination of the Action Plan adopted by the CEPEJ in 2005, decided to work on the enhancement of the efficient functioning of the judiciary while respecting the independence of judges, thus focusing on reviewing the rules on funding and management of judicial system budgets and, at the same time, framing basic rules on the training of judges [This priority task will be based on the work of the CJ-S-JUST carried out in 2007].

Expected outcome

Year 1 (2008)

Year 2 (2009)

Year 3 (2010)

Legal instrument proposing solutions with a view to enhancing the efficient functioning of the judiciary and promoting the independence of judges.

Continuation of the revision work on Recommendation No. R(94)12 on the independence, efficiency and role of judges by a new enlarged Group of Specialists.

Adoption and promotion of the Recommendation No. R(94)12 (revised) on the independence, efficiency and role of judges.

 

Internal partners: CEPEJ, CCJE

External partners: EC, EJTN

Relevance: This increasingly important issue is the direct follow up to the Action Plan prepared for the CDCJ by the CEPEJ in 2005 which aimed to identify areas where there was a need for new legal standards in the field of justice. The conclusions proposed in the Action Plan were based on the evaluation of CEPEJ of the Opinions prepared by the CCJE.

ACCESS TO JUSTICE FOR MIGRANTS AND ASYLUM SEEKERS

Background information : The Bureau of the CDCJ, considering the wide variety of matters encompassed by migration flows and taking due account of the transversal nature of issues linked to migrants and asylum seekers decided to focus its work solely on the question of access to justice for this vulnerable group of persons, including children.

Expected outcome

Year 1 (2008)

Year 2 (2009)

Year 3 (2010)

Legal instrument proposing solutions with a view to enhancing access to justice to migrants and asylum seekers.

Preparation of a feasibility study concerning the drafting of a legal instrument on access to justice for migrants and asylum seekers.

Due to staff and budgetary constraints no activity is foreseen in the 2009 budget for the time being. Follow-up to be given in 2010.

Depending on the outcome of the feasibility study, possible drafting work on an instrument or tool by a Group of Specialists.

Internal partners: CDDH, CDPC, CDMG, DG III, ECtHR, CEPEJ

External partners: EC, UNCHR

Relevance: The CDCJ believes that issues related to migrants and asylum seekers are becoming increasingly important, and will, as a direct follow up to the 28th Conference of European Ministers of Justice, examine the current concerns of these vulnerable groups which prevent them from accessing the justice system including the provision of legal aid and assistance.

EUROPEAN GUIDELINES ON CHILD-FRIENDLY JUSTICE

Background information: Although rights of children are protected by a number of international instruments they should be promoted and their exercise facilitated. Practical obstacles often prevent access to justice or increase children’s vulnerability as judicial mechanisms are not adapted to their specific needs. Provisions of the European Convention on the Exercise of Children’s Rights (ETS No. 160) should serve as basis and be taken further.

Expected outcome

Year 1 (2008)

Year 2 (2009)

Year 3 (2010)

Legal instrument proposing solutions with a view to assisting member states in setting up child-friendly judicial systems, thus enhancing access to justice for children.

Preparation by a consultant of a report paving the way to the elaboration of a legal instrument aiming at enhancing access to justice for children.

Participation in the conference “Protection, provision and participation for children in Europe”, Stockholm, 8-10 September 2008.

Drafting work of an instrument by a Group of Specialists.

Organisation of a conference on child-friendly justice in co-operation with the European Youth Centre and financed under the “Building a Europe for and with Children” Programme.

Organisation of a European Conference on Family Law.

Adoption of the instrument by the Committee of Ministers and promotion of its implementation.

Internal partners: CDDH, CEPEJ, DG III, Programme “Building a Europe for and with Children”, ECtHR

External partners: EC, UNCHR

Relevance: The drafting of European Guidelines on Child-friendly Justice will be a direct follow-up to the 28th Conference of European Ministers of Justice (Lanzarote, 25-26 October 2007) and the adoption of their Resolution No. 2 on child-friendly justice. This project will be implemented in co-operation with the transversal programme “Building a Europe for and with children” of the Council of Europe which was launched under the Action Plan which was adopted at the Warsaw Summit of the Council of Europe (2005).

The ultimate objective is to produce comprehensive ground breaking Guidelines on child-friendly justice, which assist member states in ensuring that children have child-friendly access to justice. The Guidelines will serve as a practical tool for member states assisting them in adapting their judicial system to the specific needs of children. The Guidelines will use existing international and regional instruments as a base and will indicate how their provisions can be best implemented. New standards will be developed in areas where there are legal gaps and existing best practices will be presented. Important references to the relevant case-law of the European Court of Human Rights will also be given. The Guidelines will serve as a practical guide for the national legislator, policy makers and users in paving the way for children who for whatever reason have to have access to justice.

MEDICAL LIABILITY

Background information: A Group of Scientific Experts (CJ-S-MED) was entrusted with the task of identifying the core issues at stake for Council of Europe member states in the field of medical liability and of assessing whether there is a possibility and a need for European standards in this field.

Expected outcome

Year 1 (2008)

Year 2 (2009)

Year 3 (2010)

Identification of legal lacunae in the field of medical liability at a pan-European level.

Organisation of a Conference covering different aspects of burden of proof in medical liability claims, the right of patients to informed consent and alternative ways for settling disputes emerging from medical care prior to the judicial system and compensation schemes for these claims and to encourage reporting systems.

 

On the basis of the conclusions adopted at the 2008 Conference, the decision on follow-up of the CDCJ and the identification of legal lacunae, preparation of an instrument or tool which would contribute to resolving issues related to medical liability.

Drafting a recommendation on alternative dispute resolutions, insurance schemes and compensation funds in medical liability.

Internal partners: CDBI, CEPEJ, CDSP, CDPC

External partners: EC

Relevance: Issues mentioned above, which have not already been dealt with by other international organisations, are increasingly important. There is a need to reflect on the functioning of existing national mechanisms which avoid judicial procedures in medical liability cases, while at the same time respecting the rights of the patients.

Nationality

26. The exclusive competence of the Council of Europe, at international level, in the field of nationality should be underlined and work sustained. Furthermore, focus will be put on the issue of statelessness in particular in order to reinforce the legal provisions with respect to statelessness of children.

27. It should be noted that according to the United Nations Convention on the Rights of the Child (Article 7) “the child […] shall have the right to acquire a nationality […]”.

28. The Group of Specialists on Nationality (CJ-S-NAT) will also identify themes for the 4th European Conference on Nationality which will pave the way for future work in this important field.

CHILDREN’S RIGHTS TO NATIONALITY

Background information: Reports prepared by external experts in the field of nationality underlined the need to reinforce and strengthen the existing provisions. The reports are the following:
- “Promoting acquisition of citizenship as a means to reduce statelessness” – Mr Roland
Schärer, (Switzerland);
- “The nationality of the child” – Mr Zdzislaw Galicki (Poland).

Expected outcome

Year 1 (2008)

Year 2 (2009)

Year 3 (2010)

Draft legal instrument on rights of children to nationality and identification of themes for a 4th European Conference on Nationality.

A Group of Specialists (CJ-S-NAT) will prepare a report, indicating the need and the possibility of drafting a supplementary legal instrument in this field.

Presentation of the CJ-S-NAT report at the CDCJ plenary meeting.

4th European Conference on Nationality.
Plenary meeting of CJ-NA.

Internal partners: CDDH, CDMG

External partners: EC, UNHCR, HCCH, ICCS, IOM

Relevance: Gaps exist in relation to the nationality of children who are born in a particular situation bearing in mind the European Convention on Nationality [CETS No. 166].

PILLAR 2 – IMPLEMENTATION AND MONITORING OF STANDARDS

Work under the responsibility of conventional committees

29. The CDCJ decided to invite all conventional committees to carry out an evaluation on where there may be a need to elaborate new legal standards.

DATA PROTECTION AND INFORMATION TECHNOLOGIES

Background information: In its Recommendation 1830 (2008) on video surveillance of public areas, the Parliamentary Assembly recommends that the Committee of Ministers organise a conference on the subject of video surveillance.

Expected outcome

Year 1 (2008)

Year 2 (2009)

Year 3 (2010)

Promotion of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108).

 

Participation in the organisation of a conference on videosurveillance in co-operation with the Consultative Committee of the Convention for the Protection of Individuals with regard to automatic processing of personal data (T-PD).

 

Internal partners: PACE, T-PD

EXERCISE OF CHILDREN’S RIGHTS

Background information: The Standing Committee of the Convention on the exercise of children’s rights (T-ED) was set up under Article 16 of the European Convention on the exercise of children’s rights (ETS No. 160).

Expected outcome

Year 1 (2008)

Year 2 (2009)

Year 3 (2010)

Evaluation and review of the Convention with the view to assessing a possible need to modernise and, where necessary, examination of possible ways of updating and modifying the Convention.

 

Meeting of the Conventional Committee T-ED.

 

Internal partners: DG III, Programme “Building a Europe for and with Children”, CDDH, CDPC

External partners: EC, ICCS

Relevance: The Convention, which entered into force in July 2000, at present has been signed and ratified by only 13 States.

CONTACT CONVENTION

Background information: The Convention Committee on the Custody Convention (T-CC), set up in accordance with Article 28 of the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on the Restoration of Custody of Children (ETS No. 105) held its 10th meeting on 6 and 7 June 2006.

Expected outcome

Year 1 (2008)

Year 2 (2009)

Year 3 (2010)

Evaluation and review of the Convention with the view to considering relevant questions concerning the interpretation or implementation of the Convention; proposing and examining possible amendments to the Convention and examining as well as providing advice and assistance to the relevant national bodies and promoting international co-operation between them.

 

Meeting of the Convention Committee T-CC.

 

Internal partners: DG III , “Building a Europe for and with Children”, CDDH, CDPC

External partners: EC, ICCS

Relevance: The Convention entered into force in September 1983.

Promotion of legal instruments

30. The CDCJ will continue to assess and monitor the operation of existing conventions and recommendations in all areas of legal co-operation and promote their implementation.

31. As the other steering committees, the CDCJ has an important role to play in examining the operation of the existing Council of Europe legal instruments in the fields of its competence, promoting the process of signature and/or ratification of the Council of Europe conventions by member states and, where necessary, their implementation in member states, as well as disseminating good practices.

32. The Committee of Ministers has mandated the CDCJ to monitor both the functioning and the implementation of the instruments in its field of competence. At its meeting on 13-14 December 2007, the Bureau of the CDCJ instructed the Secretariat to prepare a concept paper proposing a possible structure for the evaluation and the monitoring of its legal instruments, bearing in mind the work presented to the CDCJ by the CJ-FA. This concept paper also gives information on other similar mechanisms in the Council of Europe and the monitoring of conventions in other international fora. During its 83rd plenary meeting on 4-6 June 2008, the CDCJ decided that time was not yet ripe to propose the setting-up of a committee of experts to evaluate instruments in the field of public and private law.

ADOPTION OF CHILDREN

Background information: The draft European Convention on the adoption of children (revised) and its Explanatory report were adopted by the Committee of Ministers in May 2008 and the Convention will be opened for signature in November 2008.

Expected outcome

Year 1 (2008)

Year 2 (2009)

Year 3 (2010)

Opening for signature, the rapid entry into force and large number of signatures/ratifications of the European Convention on the Adoption of Children (revised).

Ensuring the opening for signature of the revised convention and encouraging its signature and ratification.

Organisation of a Conference on adoption with a view to encouraging the signature and ratification of the revised Convention.

 

Internal partners: Programme “Building a Europe for and with Children”, DG III, CDDH, CDPC

External partners: HCCH, ICCS, UNIDROIT, ISS, EC

33. No further activity regarding freedom of movement can be prepared if funding is not obtained from the European Union (Chapter I - item 4 - paragraph 4 of the Warsaw Action Plan).

PILLAR 3 – CO-OPERATION AND CAMPAIGNS

34. Transversal issues to be promoted through Council of Europe’s campaigns should be identified in co-operation with other instances of the Organisation in order to ensure the widest possible scope of action and dissemination.

35. The CDCJ will continue contributing to the fight against terrorism and will in particular fulfil the United Nations Global Counter-Terrorism Strategy, as endorsed by the Committee of Ministers which took note of the Council of Europe “road map” (document CM(2007)94 add2, Appendix 3) for the implementation of this Strategy during its 999bis meeting of 20 June 2007.

36. Refugees and asylum seekers are identified in the terms of reference of the CDCJ. The CDCJ, in its prioritisation exercise has focused its future standard-setting work in the field to access to justice, nationality and family law. Furthermore, the overall situation of this vulnerable group cannot and should not be dealt with solely by the CDCJ. For instance, human rights issues, health and social issues and last but not least migration issues for this group should be dealt with by the respective steering committees or other appropriate bodies. Special consideration will be given to the specific needs of children. This topic being in the mandate of the CDCJ indicates a clear shift from judicial to internal matters, since related issues are usually dealt with by Ministries of Interior rather than Ministries of Justice. This calls for an active inter-ministerial consultation on the part of national delegations of the CDCJ at a national level.

37. The rights of victims were identified as a transversal issue by the Bureau of the CDCJ in 2007. Prior to pursuing further work in that particular field the Committee has suggested that a coherent approach be taken to tackle issues related to victims within the Council of Europe and a coordinator on victims has been appointed. The latter has been done with the appointment of Mr Jan Kleijssen, Director of Standard-Setting at the Directorate General of Human Rights and Legal Affairs.

Appendix V

Conclusions of the Conference on “the ever-growing challenge on medical liability: national and European responses”, Strasbourg 2-3 June 2008

1. GENERAL REMARKS

1. Under the aegis of the Council of Europe, eminent scientific and academic experts, distinguished professionals from the medical, legal and insurance services, senior civil servants and representatives from civil society met in Strasbourg, from 2 to 3 June 2008, to discuss the ever-growing challenge of medical liability.

2. The Programme of the Conference and the list of participants are available in separate documents. The Proceedings of the Conference will be published in due course.

3. Medical liability is an issue of increasing importance in Europe. Nowadays, in a large number of Council of Europe member states, the number of complaints and cases related to medical liability is increasing. The issues raised in such cases can be complex, but clearly it is essential that the rights of patients should be properly defended.

4. This Conference has provided a fascinating, and perhaps unique, overview of medical liability within Europe, and an opportunity to compare the variety of ways in which Council of Europe member states have approached the problem.

2. FINDINGS OF THE CONFERENCE

Overview of medical liability in Council of Europe member states

5. It was clear that medical liability presents a serious concern in many parts of Europe. A significant increase in the number of cases had been widely noted in recent times, although it seemed possible that one of the causes was greater knowledge among citizens of the possibility of seeking redress rather than a proliferation in the number of incidents.

6. It was noted, based on statistical data, that there was a relationship among public perceptions and expectations of the system in dealing with complaints, the costs of claims, and the extent of trust in the health care system and the medical profession.

7. The Conference heard about the challenges faced by the medical professions in giving effect to a duty to inform and a more general duty of care.

8. It also considered the difficulties of evaluating the level of compensation, particularly where, for example, harm to the patient was psychological rather than physical.

9. The Conference noted that financial compensation is only one aspect of the redress sought by complainants: an explanation, apology, or an assurance that lessons will be learned so that similar damage can be avoided in future, may be just as important.

10. The need to take steps to strengthen trust between health care professionals and patients was stressed. Such steps might include, among other things:

    · implementing new patient-safety policies (including putting into place appropriate guidelines and good practices)

    · enhanced training for those concerned in health care

    · appropriate ethical rules for all interested and responsible stakeholders.

Legal approach to medical liability issues

11. The Conference considered traditional legal approaches to medical liability and current legal trends. Among questions examined were the concepts of causation and burden of proof, the requirement of informed consent and the means of establishing the extent of liability in different legal systems, bearing in mind the risks inherent in medical activity.

12. It recognised the role of public authorities in providing an appropriate system of regulation aimed at ensuring appropriate skills among medical practitioners, such skills consisting not only of technical expertise, but also of skills in dealing with patients.

13. The responsibility of the State to protect the lives, health and well-being of citizens, was acknowledged. The relevance of the State’s obligations to respect the European Convention on Human Rights and, where applicable, the European Convention on Human Rights and Biomedicine was also noted.

14. The Conference welcomed the role that medical bodies or associations can play, both in managing risk by reinforcing the prevention of medical negligence by professionals and in adopting preventative measures.

15. The Conference considered cases in which patients are asked to sign an indemnity form or other document purporting to waive the liability of the health care provider. The Conference considered that such clauses could not be justified, and in many countries would have no legal effect.

Existing remedies in Council of Europe member states

16. The Conference considered the variety of existing practices in Council of Europe member states in resolving medical liability complaints. It took note of the extent to which barriers and obstacles to obtaining remedies could be mitigated by offering mediation, conciliation and administrative procedures as alternatives to a procedure through a court. It recalled the existing Council of Europe recommendations on mediation (Recommendation Rec (2002)10 on mediation in civil matters), and patient safety (Recommendation Rec(2006)7 on management of patient safety and prevention of adverse events in health care).

17. The Conference considered an administrative system that is in place in some countries, characterised by availability of compensation for avoidable injuries, regardless of negligence, error or omission. Such systems are typically built on legislation concerning patients’ rights, and liability attaches to enterprises, such as hospitals, rather than individual practitioners. They avoid attributing blame to particular practitioners.

18. The Conference also noted the benefits of setting up special tribunals, with the mission of resolving disputes and compensating patients for damage.
19. The importance of effective systems of reporting of adverse incidents was stressed. These systems can contribute to the avoidance of similar difficulties in future. Systems which penalise practitioners or expose them to a high degree of personal risk tend to provide incentives to cover up such incidents.

The role and responsibility of the private and public sectors for financing medical liability claims

20. The Conference considered the different market-led and government provisions in the member states aimed at financing medical liability claims.

21. It was clear that countries had different priorities as regards the financing framework for these claims, linked to their specific cultural, historical, social economic and political circumstances.

22. The Conference took note of the need for adequate measures for managing risk, including by means of appropriate incentives and early warning systems, while at the same time ensuring an appropriate level of accountability of health-care providers.

23. To fulfil these goals, different options involving various possibilities of partnership among the main players in the field of medical liability compensation were examined. The Conference took into account the needs, particularities and preferences of concerned jurisdictions (notably the nature of health care systems, the size of the insurance markets, the litigation culture, patient expectations and the overall scope of state intervention and regulation).

24. The Conference considered the different compensation and indemnification mechanisms in member states and the complex relationship amongst patients, health care professionals, health care institutions and the main parties involved in the financing of the system, including insurers and private indemnity funds. It took note of the difficulties experienced in the insurance market in recent years and the high level of premiums.

25. It seemed clear that further research was necessary in this area.

3. FURTHER STEPS

26. The Conference stressed the need to develop the existing good practices and mechanisms in this area. An appropriate balance needs to be struck between, on the one hand, the need fully to protect the interests of patients, and, on the other hand, the importance of allowing health care practitioners to do their job in a professional manner.

27. The Conference considered that a more comprehensive assessment of different approaches to medical liability at a European level might prove valuable.

28. In particular, the Conference highlighted the benefits, both to patients and practitioners, in the member states where medical liability cases had been channelled away from traditional court-based resolution.

29. Consideration should be given by the Council of Europe to whether a specific recommendation to member states would benefit the citizens of Europe, bearing in mind that enhancing access to justice and the rule of law is one of the core missions of the Council of Europe.

30. Such a recommendation could encourage member states to provide alternatives to court procedures in medical liability cases, and to ensure that information and advice as to these options was readily available to citizens. It would build on existing standards concerning, among other things, patient safety and reporting systems, and concerning mediation in civil and administrative matters. It could also deal with systems of risk management, and cover appropriate compensation, indemnity and guarantee mechanisms aimed at ensuring funding is available for meeting claims.

31. A recommendation could note that the various alternatives to court have the very considerable advantage of speed and cost-effectiveness, and therefore might prove attractive to all parties to a case. None of them should preclude the possibility of going to court. However, there was no single solution that might be capable of application in every member state. The optimum approach for any particular country will be that which fits best with that country’s culture, and its legal, social and welfare systems.

32. The various solutions adopted across Europe were considered worthy of wider dissemination, perhaps by means of a report or guide on existing practice and mechanisms. That would enable member states more readily to consider the pros and cons of particular schemes and take a view on the extent to which elements of the systems might be applied within their own territories.

33. The number of participants and the eminence of the speakers at the Conference strongly suggest that future exchanges on this subject are highly desirable. Consideration should be given to the creation of a more permanent platform within the Council of Europe framework, providing for participation of both the legal and medical professions.

34. Closer institutional co-operation should be established at European and international level.

4. GENERAL

35. The participants expressed their thanks and congratulations to the rapporteurs and speakers and to the organisers of the Conference.

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

2 The full meeting report can be obtained from the Secretariat.

3 Namely, the Committee of Experts on Family Law (CJ-FA) and the Group of Specialists on Nationality (CJ-S-NAT).

* Subject to specific rules applicable to states marked *

5 Reference is made to the proposed Draft Terms of Reference of the CDCJ submitted for approval by the Committee of Ministers for 2008-2010


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