Ministers’ Deputies
CM Documents

CM(2009)163 29 October 20091
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1073 Meeting, 9 December 2009
10 Legal questions


10.3 European Committee on Legal Co-operation (CDCJ)
2
a. Abridged Report of the 84th Plenary Meeting (Strasbourg, 6 – 9 October 2009)
b. Draft Recommendation CM/Rec(…) … of the Committee of Ministers to member States on principles concerning continuing powers of attorney and advance directives for incapacity and its Explanatory Memorandum
c. Draft Recommendation CM/Rec(…) … of the Committee of Ministers to member States on principles concerning missing persons and the presumption of death and its Explanatory Memorandum
d. Draft Recommendation CM/Rec(…) … of the Committee of Ministers to member States on the Nationality of Children and its Explanatory Memorandum
e. Group of Specialists on child-friendly justice (CJ-S-CH) - draft terms of reference for 2010
f. Group of Specialists on access to justice for migrants and asylum seekers (CJ-S-MG) - draft terms of reference for 2010

Item to be prepared by the GR-J at its meeting on 19 November 2009
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BRIEF FOREWORD

1. The European Committee on Legal Co-operation (CDCJ), chaired by Mr Pekka NURMI (Finland), met in Strasbourg on 6-9 October 2009. The agenda, as adopted by the Plenary, appears in Appendix I and the list of participants can be obtained from the Secretariat.

ITEMS SUBMITTED TO THE COMMITTEE OF MINISTERS FOR DECISION

2. The CDCJ invited the Committee of Ministers to:

a. adopt the Draft Recommendation on Principles concerning Continuing Powers of Attorney and Advance Directives for Incapacity and take note of its Explanatory Memorandum (see Appendix II);

b. adopt the Draft Recommendation on Principles concerning Missing Persons and the Presumption of Death and take note of its Explanatory Memorandum (see Appendix III);

c. adopt the Draft Recommendation on the Nationality of Children and take note of its Explanatory Memorandum (see Appendix IV);

d. adopt the draft terms of reference of the Group of Specialists on Child-friendly Justice (CJ-S-CH) for 2010 (see Appendix V);

e. adopt the draft terms of reference of the Group of Specialists on Access to Justice for Migrants and Asylum seekers (CJ-S-MG) (see Appendix VI).

ITEMS SUBMITTED TO THE COMMITTEE OF MINISTERS FOR INFORMATION

3. The CDCJ invited the Committee of Ministers to examine and take note of:

a. its questionnaire on the evaluation of the implementation of the Recommendation CM/Rec(2007)14 on the legal status of non-governmental organisations in Europe (see Appendix VII);

b. its Opinion on Recommendation 1877 (2009) concerning “Europe’s forgotten people: protecting the human rights of long-term displaced persons” of the Parliamentary Assembly of the Council of Europe (see Appendix VIII);

c. its reply to the Committee of Ministers on discrimination on grounds of sexual orientation or gender identity (see Appendix IX);

d. its Action Plan for 2010 (see Appendix X);

e. its proposals concerning a follow-up to Opinion No. 3 of the Consultative Council of European Prosecutors (CCPE) on “the role of prosecution services outside the criminal law field” (see paragraph 31 below);

f. the present report as a whole.

LIST OF DECISIONS

At its 84th Plenary meeting, the CDCJ:

Relations with the Committee of Ministers

4. took note of the decisions taken by the Committee of Ministers since its last Plenary meeting (4-6 June 2008) and which are of direct concern for the CDCJ, as well as of the compilation of Opinions of the CDCJ given since then;

Exchange of views with invited guests

5. welcomed the presentation made by its invited guest, Mr Cyril RITCHIE, President of the Expert Council on NGO Law representing the Conference of International Non Governmental Organisations of the Council of Europe, and noted in particular the importance of Recommendation CM/Rec(2007)14 on the legal status of non-governmental organisations in Europe and of the preparation of the second thematic report of the Expert Council on NGO Law on the internal governance of NGOs;

Draft legal instruments

6. examined and approved with a unanimous vote3 the Draft Recommendation on Principles concerning Continuing Powers of Attorney and Advance Directives for Incapacity and took note of its Explanatory Memorandum (see Appendix II);

7. examined and approved4 the Draft Recommendation on Principles concerning Missing Persons and Presumption of Death and took note of its Explanatory Memorandum (see Appendix III);

8. examined and approved5 the Draft Recommendation on the Nationality of Children and took note of its Explanatory Memorandum (see Appendix IV);

9. instructed the Secretariat of the CDCJ to send the three draft recommendations to the Secretariat of the Committee of Ministers within the best deadline possible;

Draft Opinions

10. approved its Opinion on Recommendation 1877 (2009) concerning “Europe’s forgotten people: protecting the human rights of long-term displaced persons” of the Parliamentary Assembly of the Council of Europe (see Appendix VIII), and instructed the Secretariat of the CDCJ to send it to the Secretariat of the Committee of Ministers within the set deadline (31 October 2009);

Future work of the CDCJ and its subordinate bodies

Priorities of the CDCJ

11. endorsed its Action Plan for 2010 (see Appendix X) and decided to entrust its Bureau with the task of pursuing discussions on the future priorities for the CDCJ and of preparing for its consideration - where necessary - new draft terms of reference for subordinate bodies;

Family law

12. took note of the work carried out by the Committee of Experts on Family Law (CJ-FA) and in particular:

- the content of the report of its 38th Plenary meeting;

- the terms of reference of the CJ-FA for 2010;

- the composition of the Working Party that will be entrusted, in 2010, with the task of providing follow-up to the Study on the rights and legal status of children being brought up in various forms of marital and non-marital partnerships and cohabitation;

- the conclusions of the 7th European Conference on Family Law on “International Family Mediation” (Strasbourg, 16 March 2009);

- the preparation of the joint Conference of the Council of Europe and European Commission on the adoption of children: “Challenges in adoption procedures in Europe: ensuring the best interests of the child” (Strasbourg, 30 November - 1 December 2009);

Discrimination on grounds of sexual orientation or gender identity

13. approved its reply to the Committee of Ministers concerning 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 (See Appendix IX), and instructed the Secretariat of the CDCJ to send it to the Secretariat of the Committee of Ministers within the best deadline possible;

Nationality

14. took note of the work carried out by the Group of Specialists on Nationality (CJ-S-NAT) as set out in its final report and welcomed the steps made in preparation of the 4th Council of Europe Conference on Nationality, planned for 2010, which will focus on the “changing concepts of nationality in today’s and tomorrow’s globalised world”. Topics considered of interest to be addressed during this Conference are the questions of multiple nationality, statelessness, citizenship and integration/migration, ethnic citizenship and new notions of nationality, as well as consequences of European citizenship for nationality laws of the Council of Europe member states;

Independence of the judiciary

15. took note of the work of the Group of Specialists on the Judiciary (CJ-S-JUD);

Child-friendly justice

16. took note of the work of the Group of Specialists on child-friendly justice (CJ-S-CH), approved the draft terms of reference for this Group for 2010 (see Appendix V) and instructed the Secretariat of the CDCJ to send them to the European Committee on Crime Problems (CDPC) and to the Steering Committee on Human Rights (CDDH) for information and possible comments before sending them to the Secretariat of the Committee of Ministers within the best deadline possible;

Administrative law

17. took note of Resolution No. 3 on Council of Europe action to promote the rule of law adopted at the 29th Council of Europe Conference of Ministers of Justice (see paragraph 34 below) and took note of the forthcoming revision of the Handbook entitled “The administration and you” published by the Council of Europe in 1997;

18. underlined the necessity to examine the relevant instruments existing in this field, in particular the European Convention on the Service Abroad of Documents relating to Administrative Matters (CETS No. 94) and the European Convention on the Obtaining Abroad of Information and Evidence in Administrative Matters (CETS No. 100), in view of their possible revision and/or drafting of a new legal instrument in the field of administrative law;

Revision of the Convention on Mutual Administrative Assistance in Tax Matters

19. welcomed the initiative of the Organisation for Economic Co-operation and Development (OECD) to revise the Convention on Mutual Administrative Assistance in Tax Matters (CETS No. 127) and took note of the invitation made to the CDCJ delegations to comment on the draft text provided by the OECD by 15 October 2009;

Medical liability

20. welcomed the proposal of its Bureau for a feasibility study to be prepared by a consultant on a possible guide to alternative dispute resolution in the area of medical liability, as a follow-up to the Conference on the “Ever-growing challenge of medical liability: national and European responses” (Strasbourg, 2-3 June 2008), while building on the work carried out on this topic by the CDCJ in the past;

Access to justice for migrants and asylum seekers

21. examined and approved the draft terms of reference of the Group of Specialists on Access to Justice for Migrants and Asylum-seekers (CJ-S-MG) (see Appendix VI) and instructed the Secretariat of the CDCJ to forward them to the Secretariat of the Committee of Ministers within the best deadline possible;

Non-governmental Organisations

22. endorsed the proposal of its Bureau, further to the Committee of Ministers’ request (Ministers’ Deputies’ 1061st meeting of 17 June 2009), to send a questionnaire on the evaluation of the implementation of Recommendation CM/Rec(2007)14 on the legal status of non-governmental organisations in Europe to all its national delegations, in order to transmit its findings and an analysis of the replies to this questionnaire to the Committee of Ministers before 30 June 2010, and to this end approved the draft questionnaire (see Appendix VII);

23. welcomed the proposal of the Conference of International Non Governmental Organisations to provide additional input in this regard;

Debt problems

24. welcomed the proposal of its Bureau to start preparatory work, in 2010, on the possible drafting of a European model code of conduct for credit institutions, and authorised the publication on its website of information and examples of good practice concerning the implementation in the member states of Recommendation CM/Rec(2007)8 on legal solutions to debt problems, underlining that such information and examples of good practice are still welcome;

Information technology and Data protection

25. took note of the invitation made to the national delegations of the CDCJ to provide comments on the draft Recommendation on the protection of individuals with regard to the automatic processing of personal data in the framework of profiling, prepared by the Consultative Committee on the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (TP-D), to be formally sent to the CDCJ for approval in 2010;

26. endorsed the activities concerning the revision and drafting of recommendations in the field of data protection proposed in the work programme of the T-PD for 2009 and beyond;

Operation and evaluation of instruments of the CDCJ

27. took note of the report on “The specificity and added value of the acquis of the Council of Europe treaty law” prepared under the aegis of the Parliamentary Assembly of the Council of Europe;

28. decided to proceed in 2010, subject to budgetary restrictions, with a pilot study on targeted conventions, such as conventions relating to issues of intellectual property and patent, liability, as well as administrative law;

Work of other committees

29. took note of the fact that, due to budgetary constraints and heavy workload, the Convention Committee on the Exercise of Children’s Rights (T-ED) and the Convention Committee on the Custody Convention (T-CC) did not meet in 2009 and that the need was not felt at the present time to convene the Multilateral Committee on the European Agreement on the transmission of Applications for Legal Aid (T-TA); the CDCJ further noted that the work of the Group of Specialists on child-friendly justice (CJ-S-CH) should be of interest for the T-ED;

30. took note of the information provided on the work of other bodies of the Council of Europe relevant to the CDCJ’s work, namely the Steering Committee on Human Rights (CDDH), the Steering Committee on the Media and New Communication Services (CDMC), the European Committee on Migration (CDMG), the European Commission for the Efficiency of Justice (CEPEJ), the Consultative Council of European Judges (CCJE), the Consultative Council of European Prosecutors (CCPE), the Committee of Experts on Terrorism (CODEXTER), the Ad hoc Committee on preventing and combating violence against women and domestic violence (CAHVIO) and the Steering Committee on Bioethics (CDBI);

31. considered, further to the Committee of Ministers' request (Ministers' Deputies' 1061st meeting of 17 June 2009) concerning Opinion No. 3 of the CCPE regarding the role of the public prosecutor outside the criminal law field, that it needed further information in order to clearly establish the need and added-value of standard-setting work on this topic. The CDCJ thus instructed its Bureau to gather further information on this topic in close co-operation with the CCPE in view of its re-examination at a later stage;

Ministerial Conferences

32. expressed its sincere gratitude to the Norwegian authorities for having organised the 29th Council of Europe Conference of Ministers of Justice (17-19 June 2009, Tromsø) and took note of Resolution No. 1 on preventing and responding to domestic violence and Resolution No. 3 on Council of Europe action to promote the rule of law;

33. instructed its Bureau, as a follow-up to Resolution No. 1, to start preparatory work on the prevention and response to domestic violence relating to children and the elderly in close co-operation with the Ad hoc Committee on preventing and combating violence against women and domestic violence (CAHVIO);

34. instructed its Bureau, as a follow-up to Resolution No. 3, to support the work in the field of administrative law and in particular the evaluation of existing instruments in that field (see paragraph 18 above) and identify possible areas of future work in this field;

35. welcomed the invitation of the Turkish authorities to host the 30th Council of Europe Conference of Ministers of Justice in Istanbul in 2011 and instructed its Bureau to follow the identification of possible transversal themes;

Elections and appointments

36. appointed its representatives to other Council of Europe bodies as it appears in document CDCJ (2009) 10 bil rev 2;

37. elected Mr Séamus CARROLL (Ireland) as Chair for one year and Ms Nicole COCHET (France) as Vice-Chair for one year;

38. re-elected Mr Eberhard DESCH (Germany) and Mr Francesco CRISAFULLI (Italy), and elected Ms Diana SCOBIOALĂ (Moldova) as Bureau members for two years6;

Future meetings of the CDCJ and its Bureau

39. entrusted its Bureau with taking a final decision concerning the dates of its next plenary meeting expected to take place in autumn 2010;

40. approved the revised version of the document related to the working methods of the CDCJ and its Bureau.

Appendix I

Agenda

1. OPENING OF THE MEETING

2. ADOPTION OF THE AGENDA

3. RELATIONS WITH THE COMMITTEE OF MINISTERS

4. EXCHANGE OF VIEWS WITH INVITED GUESTS

I. TEXTS FOR ADOPTION AND APPROVAL BY THE CDCJ

5. DRAFT LEGAL INSTRUMENTS

6. DRAFT OPINIONS

II. ACTIVITIES

7. FUTURE WORK OF THE CDCJ AND ITS SUBORDINATE BODIES

8. WORK OF OTHER COMMITTEES

9. CONFERENCES AND COLLOQUIES IN THE LEGAL FIELD

10. COOPERATION WITH THE EUROPEAN UNION

III. ELECTIONS AND APPOINTMENTS

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

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

IV. FUTURE MEETINGS OF THE CDCJ AND ITS BUREAU

13. CALENDAR OF FUTURE MEETINGS

14. OTHER BUSINESS

Appendix II

Draft recommendation on principles concerning continuing powers of attorney and advance directives for incapacity and its Explanatory memorandum

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 the member states, in particular by promoting adoption of common rules in legal matters;

Noting that demographic changes have resulted in an increasing number of elderly people who have become incapable of protecting their interests by reason of an impairment or insufficiency of their personal faculties;

Noting that there continue to be other circumstances in which adults become incapacitated;

Having regard to relevant instruments of the Council of Europe, including the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5, 1950), the Convention on Human Rights and Biomedicine (Oviedo Convention, ETS No. 164, 1997) and Recommendation Rec(2006)5 of the Committee of Ministers to member states on the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society: improving the quality of life of people with disabilities in Europe 2006-2015;

Having regard to the Hague Convention on the International Protection of Adults (2000) and the United Nations Convention on the Rights of Persons with Disabilities (2006);

Bearing in mind the relevant case law of the European Court of Human Rights;

Agreeing that Recommendation No. R (99) 4 of the Committee of Ministers to member states on principles concerning the legal protection of incapable adults is a valuable and up-to-date international instrument containing detailed guidance and general advice on legal rules dealing with measures of protection of such adults;

Noting that the above recommendation and the legislation of the member states concerning adults with incapacity strongly promotes self-determination and autonomy;

Considering that self-determination is essential in respecting the human rights and dignity of each human being;

Noting that in some member states continuing powers of attorney are a preferred alternative to court decisions on representation;

Noting that legislation on continuing powers of attorney and advance directives has recently been passed or proposed in some member states;

Noting that in legal systems where continuing powers of attorney and advance directives are available, adults of all ages increasingly make use of them;

Recognising that there are considerable disparities between the legislation of member states as regards these issues;

Building upon the principles of subsidiarity and necessity contained in Recommendation No. R (99) 4 and supplementing it with principles on self-determination,

Recommends that governments of member states promote self-determination for capable adults by introducing legislation on continuing powers of attorney and advance directives or by amending existing legislation with a view to implementing the principles contained in the appendix to this recommendation.

Appendix to Recommendation CM/Rec(2009)..

Part I - Scope of application

Principle 1− Promotion of self-determination

1. States should promote self-determination for capable adults in the event of their future incapacity, by means of continuing powers of attorney and advance directives.

2. In accordance with the principles of self-determination and subsidiarity, states should consider giving those methods priority over other measures of protection.

Principle 2 – Definition of terms used in the present recommendation

1. A “continuing power of attorney” is a mandate given by a capable adult with the purpose that it shall remain in force, or enter into force, in the event of the granter’s incapacity.

2. The “granter” is the person giving the continuing power of attorney. The person mandated to act on behalf of the granter is referred to as the “attorney”.

3. “Advance directives” are instructions given or wishes made by a capable adult concerning issues that may arise in the event of his or her incapacity.

Part II - Continuing powers of attorney

Principle 3− Content

States should consider whether it should be possible for a continuing power of attorney to cover economic and financial matters, as well as health, welfare and other personal matters, and whether some particular matters should be excluded.

Principle 4 − Appointment of attorney

1. The granter may appoint as attorney any person whom he or she considers to be appropriate.

2. The granter may appoint more than one attorney and may appoint them to act jointly, concurrently, separately, or as substitutes.

3. States may consider such restrictions as are deemed necessary for the protection of the granter.

Principle 5 – Form

1. A continuing power of attorney shall be in writing.

2. Except in states where such is the general rule, the document shall explicitly state that it shall enter into force or remain in force in the event of the granter’s incapacity.

3. States should consider what other provisions and mechanisms may be required to ensure the validity of the document.

Principle 6 − Revocation

A capable granter shall have the possibility to revoke the continuing power of attorney at any time. Principle 5, paragraph 3, is applicable.

Principle 7− Entry into force

1. States should regulate the manner of entry into force of the continuing power of attorney in the event of the granter’s incapacity.

2. States should consider how incapacity should be determined and what evidence should be required.

Principle 8 − Certification, registration and notification

States should consider introducing systems of certification, registration and/or notification when the continuing power of attorney is granted, revoked, enters into force or terminates.

Principle 9 − Preservation of capacity

The entry into force of a continuing power of attorney shall not as such affect the legal capacity of the granter.

Principle 10 – Role of the attorney

1. The attorney acts in accordance with the continuing power of attorney and in the interests of the granter.

2. The attorney, as far as possible, informs and consults the granter on an ongoing basis. The attorney, as far as possible, ascertains and takes account of the past and present wishes and feelings of the granter and gives them due respect.

3. The granter’s economic and financial matters are, as far as possible, kept separate from the attorney’s own.

4. The attorney keeps sufficient records in order to demonstrate the proper exercise of his or her mandate.

Principle 11 – Conflict of interest

States should consider regulating conflicts of the granter’s and the attorney’s interests.

Principle 12 − Supervision

1. The granter may appoint a third party to supervise the attorney.

2. States should consider introducing a system of supervision under which a competent authority is empowered to investigate. When an attorney is not acting in accordance with the continuing power of attorney or in the interests of the granter, the competent authority should have the power to intervene. Such intervention might include terminating the continuing power of attorney in part or in whole. The competent authority should be able to act on request or on its own motion.

Principle 13 – Termination

1. States should consider under which circumstances a continuing power of attorney ceases to have effect.

2. When a continuing power of attorney ceases to have effect in part or in whole, the competent authority should consider which measures of protection might be taken.

Part III - Advance directives

Principle 14 – Content

Advance directives may apply to health, welfare and other personal matters, to economic and financial matters, and to the choice of a guardian, should one be appointed.

Principle 15 – Effect

1. States should decide to what extent advance directives should have binding effect. Advance directives which do not have binding effect should be treated as statements of wishes to be given due respect.

2. States should address the issue of situations that arise in the event of a substantial change in circumstances.

Principle 16 – Form

1. States should consider whether advance directives or certain types of advance directives should be made or recorded in writing if intended to have binding effect.

2. States should consider what other provisions and mechanisms may be required to ensure the validity and effectiveness of those advance directives.

Principle 17 – Revocation

An advance directive shall be revocable at any time and without any formalities.

***

Explanatory memorandum

1. GENERAL COMMENTS

1.1. Moving forward from Recommendation No R (99) 4

1. The Council of Europe commenced addressing the issue of protection of incapable adults when the Third European Conference on Family Law, held in Cadiz, Spain, in April 1995, entitled “Family Law in the Future”, discussed this question. The Conference requested the Council of Europe to invite a group of specialists in this field to examine the desirability of drafting a European legal instrument. The aim was to guarantee the integrity and rights of incapable adults and, wherever possible, their independence. Following this proposal, the Committee of Ministers of the Council of Europe set up the Group of Specialists on Incapable and Other Vulnerable Adults (CJ-S-MI) in 1995, later re-named the Group of Specialists on Incapable Adults.

2. The result of the Group’s work was Recommendation No. R (99) 4 on Principles concerning the legal protection of incapable adults. It contains quite detailed principles and is accompanied by an extensive explanatory memorandum. According to the recommendation’s scope of application, its principles “apply to the protection of adults who, by reason of an impairment or insufficiency of their personal faculties, are incapable of making, in an autonomous way, decisions concerning any or all of their personal or economic affairs, or understanding, expressing or acting upon such decisions, and who consequently cannot protect their own interests. The incapacity may be due to a mental disability, a disease or a similar reason”. The principles address measures of protection or other legal arrangements enabling such adults to benefit from representation or assistance in relation to those affairs. The recommendation contains governing principles as well as parts on “procedural principles” and on “the role of representatives”.

3. Principle 2, entitled “Flexibility in legal response”, stipulates that the measures of protection and other legal arrangements “should be sufficient, in scope or flexibility, to enable a suitable legal response to be made to different degrees of incapacity and various situations”. Principle 5, “Necessity and subsidiarity”, indicates that “no measure of protection should be established for an incapable adult unless the measure is necessary, taking into account the individual circumstances and the needs of the person concerned. In deciding whether a measure of protection is necessary, account should be taken of any less formal arrangements which might be made and of any assistance which might be provided by family members or by others”. Principle 6 on “Proportionality” underlines that a measure of protection “should be proportional to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned”. Principle 3 concerns “maximum preservation of capacity”. It provides that “the legislative framework should, as far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. However, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned”. It is supplemented by Principle 2, paragraph 4 according to which, “the range of measures of protection should include, in appropriate cases, those which do not restrict the legal capacity of the person concerned”. The recommendation strongly promotes self-determination and autonomy, which are essential in respecting the human rights and dignity of each person. Principle 2, paragraph 7 states that “consideration should be given to the need to provide for,

and regulate, legal arrangements which a person who is still capable can take to provide for any subsequent incapacity”. Such a possibility clearly facilitates flexibility and proportionality of the legal response, as mentioned in Principles 2 and 6, as well as respecting the principles of necessity and subsidiarity in accordance with Principle 5. Finally, Principle 9, paragraph 1 states that “in establishing or implementing a measure of protection for an incapable adult, the past and present wishes and feelings of the adult should be ascertained so far as possible, and should be taken into account and given due respect”.

4. Since incapacitated persons are amongst the most vulnerable in society, the Committee of Experts on Family Law (CJ-FA), at its 36th meeting on 15-17 November 2006, decided, in the light of the increased number of elderly people in Europe, to set up a Working Party on Incapable Adults (CJ-FA-GT2) to examine the usefulness of upgrading the Recommendation No. R (99) 4 on principles concerning the legal protection of incapable adults to a convention.

5. During the first meeting of the Working Party on 17-19 September 2007, it was assessed that little value would be added by preparing new binding rules, as they would have almost the same content as the existing recommendation. The Working Party considered that the Recommendation No. R (99) 4 continues to be of great relevance, and that it remains entirely up-to-date. Its strength is that it is addressed to all member states and provides detailed guidance on how to reform national legislation. Indeed, it has guided several member states in the preparation of recent legislative reforms. Further reference to this recommendation has been made in three judgments of the European Court of Human Rights, namely H.F. v. Slovakia of 8 November 2005 (Application No. 54797/00), Shtukaturov v. Russia of 27 March 2008 (Application No. 44009/05) and X v. Croatia of 17 July 2008 (Application No. 11223/04). In the Shtukaturov case, the Court concluded in paragraph 95: “Although these principles [of the Recommendation No. R (99) 4] have no force of law for this Court, they may define a common European standard in this area”. The Working Party proposed therefore to build on that recommendation and to elaborate new principles focusing upon self-determination, in particular upon continuing powers of attorney and advance directives.

6. On the basis of the conclusions of the Working Party, which were supported by the CJ-FA at its 37th meeting held on 28-30 November 2007, and by the Bureau of the European Committee on Legal Co-operation (CDCJ) at its 80th meeting on 13-14 December 2007, the Committee of Ministers of the Council of Europe adopted new terms of reference for the CJ-FA for the period January 2008-June 2009, which included, inter alia, the task of drawing up a new recommendation dealing with planning for future incapacity, by means of continuing powers of attorney and advance directives.

7. Because of the revised mandate of the Working Party, its composition was changed and new members selected, in consultation with the Chair of the CJ-FA. It met four times in 2008, under the chairmanship of Mr Kees BLANKMAN (the Netherlands) and with Mr Svend DANIELSEN (Denmark) as consultant.

8. After its second meeting on 14-16 May 2008, the Working Party sent its preliminary draft recommendation and a preliminary explanatory memorandum to the members of the CJ-FA for information and possible comments. Other relevant bodies and institutions were also invited to comment. The replies received were discussed and taken into account at the third meeting of the Working Party on 3-5 September 2008.

9. The draft recommendation and its explanatory memorandum, as prepared by the Working Party, were examined by the CJ-FA at its 38th plenary meeting on 17-20 March 2009 and submitted to the CDCJ for approval at its 84th plenary meeting on 6-9 October 2009 before their transmission to the Committee of Ministers for adoption on 19 November 2009.

1.2. The need for a new recommendation

10. Experience on both a national and international level during the last decades shows that the issue of adults with incapacity is arguably the most topical issue of family law at present; this may also prove to be true in years to come. Despite the overall improvement in the protection of human rights, this area of law was underdeveloped or even completely neglected in a number of member states.

11. It should be borne in mind that the numbers of elderly people are rising steadily in Europe, due to an overall improvement of living conditions, demographic and social changes and medical advances. However, the mental faculties of the elderly often decline with age and the number of persons suffering from diseases such as senile dementia or Alzheimer’s disease is increasing throughout Europe. In addition, groups other than the elderly may also experience impairments of capacity.

12. Measures to address incapacity may be put into two broad categories, responsive and anticipatory. Responsive measures are initiated after impairment of capacity, responding to that incapacity, and generally require judicial or other public intervention. Anticipatory measures, on the other hand, are put in place by a capable person, prior to any impairment of capacity.

13. In several member states, attention has recently been focussed on persons’ self-determination as opposed to judicial or other public intervention. However, at present there is no instrument at the European level which provides guidance for member states to reform laws to allow planning for future incapacity. A new international instrument might therefore be relevant and timely. It could benefit the lives of many citizens who might wish to plan for their own possible future incapacity with the help of an instrument of legal nature, which might provide added value.

14. Continuing powers of attorney and advance directives constitute two methods of self-determination for capable adults for periods when they are not capable of making decisions. They are both anticipatory measures, which subsequently have a direct impact on granters’ lives during periods when their capacity to make decisions is impaired. They are both defined in Principle 2 of the new recommendation. The terminology of the recommendation is explained in section 1.5 “Terminology”.

15. Where continuing powers of attorney have been available for some years, they are increasingly viewed as something which everyone should consider having, in the same manner that it is generally recommended to make a will. Increasingly, continuing powers of attorney are granted by people of all ages on the basis that incapacity can arise suddenly. Further, medical trends towards early diagnosis of progressive conditions likely to result in incapacity, and the availability of treatments which slow the progress of such conditions, mean that there are many people who are aware that they are in the early stages of a progressive deterioration of capacity, but who still have sufficient capacity to appoint someone to represent them. Therefore, certain people with some degree of incapacity, including those with lifelong incapacities, may be able to grant a valid continuing power of attorney to appoint someone of their choice to deal with matters which they themselves would find very difficult, if not beyond their capacity. Some legislation recognises that people may have adequate legal capacity to select an attorney and grant a continuing power of attorney even though they might not have adequate capacity to do themselves everything which the attorney is appointed to do on their behalf.

1.3. Other international instruments

16. Many recent international instruments deal with persons with disabilities, other vulnerable persons, incapacity issues and methods of self-determination. The following are particularly relevant.

17. The United Nations’ Convention of 13 December 2006 on the Rights of Persons with Disabilities stipulates in its preamble and in Article 4 that states who are parties to the convention reaffirm the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms, and also reaffirm the need for persons with disabilities to be guaranteed full enjoyment of such rights without discrimination. This convention entered into force on 3 May 2008 after being ratified by the required number of 20 states. By that time, over 100 other states had signed the convention. The convention recognises the capacity of persons with disabilities to make their own decisions, and its Optional Protocol further allows those persons to petition an international expert body. Lastly, the convention foresees national mechanisms of implementation and monitoring (Article 33).

18. This United Nations’ Convention addresses all disabilities, including physical, sensory and intellectual disabilities. Article 12.1 re-affirms the right of all persons with disabilities to recognition everywhere as persons before the law. On the one hand, across the great range of intellectual disabilities, human rights can be put at risk on the one hand by ascribing incapacity to those who have capacity, but may still require support in exercising their legal capacity. On the other hand, they can be put at risk by suggesting that only support – rather than enforceable legal safeguards – is required by those lacking capacity, and whose apparent compliance with the guidance and decisions of others is not a valid exercise of legal capacity.

19. The first situation is addressed in Article 12.3, which gives new authoritative force to existing best practice principles that, where there is capacity but difficulty in exercising it, all necessary support should be given to facilitate, encourage and develop the exercise of capacity. Therefore, where needed, such support should be given to enable a continuing power of attorney to be granted. Article 12.4 briefly re-states the main guiding principles applicable where there is impairment of capacity and “measures that relate to the exercise of legal capacity” are required. This article, however, does not contain principles explicitly addressing such incapacity. Recommendation No. R (99) 4 therefore remains an important starting-point for the continued development of legislation in Europe to ensure the protection of the human rights and fundamental freedoms of those with impaired capacity to make valid decisions, and effectively to exercise and assert their rights. The present recommendation includes principles necessary to provide such protection for granters who no longer have capacity when the attorney is acting.

20. Furthermore, the Hague Convention of 13 January 2000 on the International Protection of Adults regulates jurisdiction, applicable law, recognition, enforcement and co-operation. The convention entered into force on 1 January 2009 upon ratification by the required number of three states. Of special interest is the fact that Articles 15, 16 and 38 of the convention deal with international private law issues as regards continuing powers of attorney. As the new recommendation does not deal with those issues, those articles are of relevance as a supplement. Article 15, paragraph 2, regulates which law is applicable, and prescribes that “the existence, extent, modification and extinction of powers of representation granted by an adult, either under an agreement or by a unilateral act, to be exercised when such an adult is not in a position to protect his or her interests, are governed by the law of the State of the adult’s habitual residence at the time of the agreement or act, unless one of the laws mentioned in paragraph 2 has been designated expressly in writing”. According to paragraph 3, “the manner of exercise of powers of representation is governed by the law of the State in which they are exercised”. Article 16 deals with withdrawal and modification of continuing powers of attorney if they “are not exercised in a manner sufficient to guarantee the protection of the person or property of the adult”. A decision to that effect may be “taken by an authority having jurisdiction under the convention. Where such powers of representation are withdrawn or modified, the law referred to in Article 15 should be taken into consideration to the extent possible.” Article 38 deals with an international certificate: “the authorities of the contracting State where a power of representation [has been] confirmed may deliver to the person entrusted with protection of the adult’s person or property, on request, a certificate indicating the capacity in which that person is entitled to act and the powers conferred”.

21. On a European level, mention should first be made to the Convention for the Protection of Human Rights and Fundamental Freedoms. Another important instrument is the 1997 Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (Oviedo Convention). Its various provisions are relevant in this context, but particular attention should be paid to Article 9 which stipulates: “the previously expressed wishes relating to a medical intervention by a patient who is not, at the time of the intervention, in a state to express his or her wishes shall be taken into account.” The explanatory report indicates on this point: “nevertheless, taking previously expressed wishes into account does not mean that they should necessarily be followed. For example, when the wishes were expressed a long time before the intervention and science has since progressed, there may be grounds for not heeding the patient’s opinion.”

22. Finally, Recommendation Rec(2006)5 of the Committee of Ministers to member states on the ”Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society: improving the quality of life of people with disabilities in Europe 2006-2015”, deserves also to be mentioned.

1.4. Relevant developments in certain member states

23. The legal concept “continuing powers of attorney” was first introduced in English-speaking countries, and it is found throughout Australia, Canada and the United States of America. The first legislation based upon Recommendation No. R (99) 4 was the Adults with Incapacity (Scotland) Act 2000 which has been improved in light of experience by an Act of 2007. It is a code with unifying principles and provisions, which includes continuing powers of attorney. In England and Wales, the 1985 legislation was replaced by the Mental Capacity Act 2005 supplemented by Statutory Instrument 2007 No. 253 on lasting powers of attorney, enduring powers of attorney and public guardian regulations. In Ireland, a bill to change the 1996 Power of Attorney Act was presented to Parliament at the beginning of 2007 (Mental Capacity and Guardianship Bill 2007, No. 12).

24. In states such as Belgium, Denmark, Finland, Germany and the Netherlands, powers of attorney have for some years been in use after the granter’s incapacity without specific regulations other than the general legislation on powers of attorney. In Germany, the situation changed when the 2nd Guardianship Modification Act of 21 April 2005 (Law Gazette 2005, part I, 1073) entered into force in July 2005 with the purpose of strengthening self-determination for persons unable to take care of their interests. Continuing powers of attorney, called Vorsorgevollmacht, constitute its main tool.

25. Legislation on continuing powers of attorney has recently been introduced in other states as well. In Spain, Ley 41/2003 de 18 de noviembre de protección patrimonial de las personas con discapacidad introduced a new provision in Article 1732 whereby the mandate terminates upon supervening incapacity of the granter, unless the mandate provides that it should continue in that event or unless the mandate has been given for the purpose of exercise in the event of the granter’s incapacity as assessed according to the granter’s instructions. In Austria, the Guardianship Act of 1984 was revised by Sachwalterrechts - Änderungsgesetz 2006 which came into force on 1 July 2007 (Law Gazette 2006, part I No. 92, Art. 284 f, 284 g and 284 h of the Civil Code). The new law introduces continuing powers of attorney, called Vorsorgevollmacht. In Finland, in April 2007 the Parliament passed Lag om interessevakningsfullmakt (Law No. 648/2007) concerning representation powers of attorney, which entered into force on 1 November 2007. In France, Law No. 2007-308 of 5 March 2007 (JORF No. 56) on the reform of the legal protection of adults entitled Mandat de protection future and Articles 477 – 494 of the Civil Code introduced a new form of legal protection for adults, including continuing powers of attorney. It entered into force on 1 January 2009. In Switzerland, the modification of 19 December 2008 of the Swiss Civil Code (Protection de l’adulte, droit des personnes et droit de la filiation) foresees new legal instruments aimed at self-determination in case of incapacity. Firstly, this would allow a natural or legal person to be responsible for providing the granter with personal assistance or for representing him or her in the event that he or she becomes incapable of proper judgment. Secondly, this law regulates the ways of deciding, in advance directives, which medical treatment the granter would consent to in the event that he or she becomes incapable of proper judgment.

26. Work is in progress in some other states. In Norway, a Law Reform Committee published its report “Guardianship“ (Vergemål) in 2004 (NOU 2004:16). In accordance with this report, the Government proposed a bill to the Parliament in September 2009 (Ot.prp.nr. 110 (2008-2009) Om lov om vergemål (vergemålsloven). Chapter 10 (Fremtidsfuldmagter mv) deals with future powers of attorney. That same year, in Sweden, a Law Reform Committee published a report on the “Questions concerning guardians and substitutes for adults’’ (Frågor om Förmyndare och ställföreträdare för vuxna, SOU 2004:112) containing a proposal for the Law on future powers of attorney (Lag om Fremtidsfuldmagter mv).

27. The experience of states where continuing powers of attorney have been in place for some time indicates that adults of all ages increasingly make use of them.

28. In England and Wales, under the old system the registration of enduring powers of attorney took place at the onset of the granter’s incapacity. The registration of the new lasting powers of attorney must take place before the attorney can use them, irrespectively of whether or not the granter has lost capacity. Once registered, the attorney may use the power and many powers come into force immediately after signing. In the first 13 months after the new system came into force (1 October 2007), the number of registrations of enduring and lasting powers of attorney was 69,377.

29. In Scotland, the present regime of continuing powers of attorney was introduced in 2001. Since then, the registrations have continued to grow. Documents are most commonly registered at the time of granting, rather than later at the time of loss of capacity. 5,592 powers of attorney were registered in the year to 31 March 2002. The number rose to 18,113 in the year to 31 March 2005, and to 32,066 in the year to 31 March 2008. The figure for 2007/2008 could usefully be compared with the number of guardianships in that year (only 876). In 2007/2008, 791 of the registered powers conferred only personal welfare powers, 1,850 only financial powers, and 14,451 both welfare and financial powers. In 2001/2002, 29% of powers of attorney registered concerned personal matters, in 2003/2004 the number had risen to 48%, and now it is 82%. 80% of granters were 60 years old or more.

30. In Germany, it was estimated that more than 1.5 million continuing powers of attorney had been set up by autumn 2008, and the proportion of adults whose affairs were not managed by a publicly appointed legal representative, but instead by an attorney, was constantly increasing. According to a recent study, the proportion of the total number of residents in German care homes for the elderly who were represented by an attorney amounted to 30%.

31. Furthermore, in Austria, 5,155 registrations were made from the entry into force of the new legislation on 1 July 2007 to October 2008.

32. Advance directives are recognised in a number of member states. They are found either in legislation concerning measures of protection of incapacitated adults, or in legislation on continuing powers of attorney, or in health legislation. All these rules permit capable persons to make statements about certain aspects of their lives in the event of incapacity. Some may be legally binding, others may be wishes which must be taken into consideration and given due respect. As they may deal with health issues, they are often called “living wills” or Patientenverfügung.

33. In Austria, instructions may be given to a medical doctor orally or in writing (Beachtliche Patientenverfügung), about objections to future medical treatment. They are not legally binding, but should be used as guidelines. The Verbindliche Patientenverfügung is a binding instruction made in writing with a lawyer or a public notary following the receipt of detailed and extensive information from the person concerned. Such instructions have effect for a five-year period and can be renewed. If requested, such a binding instruction may be registered in a centralised register, Patientenverfügungsregister, of the Austrian Chamber of Notaries.

34. In Denmark, where the Health Law, Sundhedslov nr 546 of 24 June 2005, provides for “living wills” (livstestamenter), the patient may express wishes as regards treatment in case he or she is no longer able to make decisions him/herself.

35. The same holds true in Finland, where the Act on the Status and Rights of Patients No. 785 of 1992 imposes an obligation on the health care professionals and the patient’s representatives to respect the previously expressed will of the patient.

36. In the Mental Capacity Act 2005 of England and Wales, there are also some principles on advance decisions limited to decisions to refuse treatment.

37. In Belgium, France and the Netherlands, it exists the possibility to state wishes regarding care, and eventual refusal of a treatment in the event of incapacity.

38. Another possibility relates to statements by the person concerned about who should be guardian, if a decision of guardianship is to be made (Betreuungsverfügung or Sachwalterverfügung in German-speaking countries). This is the case in Austrian, Belgian, French, German and Italian law.

1.5. Terminology

39. The present recommendation, and this explanatory memorandum distinguish between “capacity” and “legal capacity”. Here the terms “capacity” and “capable” are the counterparts of “incapacity” and “incapable”. “Incapacity” is limited to what might be termed “factual incapacity”, or in some states “mental incapacity”, although the latter term is outdated and unpopular. Such incapacity may impair the ability of an adult to make decisions, assert and exercise rights, and so forth. An extreme form is the incapacity of a person in a coma or in persistent vegetative state. Although severe dementia or a profound learning disability (formerly “mental handicap”) can cause substantial incapacity, many other conditions can cause various lesser degrees of incapacity. It is, however, fundamental that such factual or mental incapacity, here termed “incapacity”, never detracts from the adult’s rights and status in law.

40. While in the past “capacity” and “legal capacity” have often been used synonymously, a trend has emerged of sometimes using “legal capacity” to encompass the adult’s rights and status themselves, rather than the ability to exercise and assert them. Under that usage, “legal incapacity” refers to the diminution by law of an adult’s rights and status, similar to that which might be imposed upon some criminal offenders, or upon bankrupted persons. Persons with disabilities should never have such legal incapacity imposed upon them by reason of their disabilities. This point is stressed by Recommendation No. R (99) 4, Principle 3 “maximum preservation of capacity” and by the 2006 United Nations Convention on the Rights of Persons with Disabilities, which uses “legal capacity” in that sense. Article 12.2 of that convention provides: “States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life." The present recommendation uses “legal incapacity” in that same sense, but requires to do so only once, in Principle 9, to emphasise in accordance with Article 12.2 that the granter of a continuing power of attorney loses no legal capacity when the power continues in force, or enters into force, upon the granter’s incapacity.

41. This recommendation uses “enter into force” in relation to a continuing power of attorney which is not operable before the granter’s incapacity. The term refers to the point in time when the continuing power of attorney becomes operable and the attorney becomes entitled to act.

1.6. Characteristics and perspective of the new recommendation

42. The new recommendation differs from Recommendation No. R (99) 4, which deals with public measures of protection, procedural rules and the role of the representative appointed by a competent authority. The present complementary instrument primarily deals with decisions made privately by the persons concerned. Self-determination implies that the granters, to a large extent, are free to make decisions on their future life. National legislation may contain specific limitations on this freedom.

43. There might be a unilateral document describing who shall be the attorney, what he or she has the power to do, and under what conditions, though this model requires the acceptance of the appointee before it becomes effective, and will often be treated as a species of contract following such acceptance. The acceptance, and the establishment of the contract, may be delayed until after loss of capacity. Where there is a substitute appointment, there may be a later acceptance, and subsequent contract, if and when the substitution is triggered. Another possibility is a contract from the outset between the granter and the appointed attorney.

44. The drafting of the new recommendation was influenced by the fact that only a minority of member states already have legislation or draft proposals on continuing powers of attorney and advance directives. The intention has been to draw the attention of member states that are in the process of adopting, or that are considering drafting, legislation concerning persons with incapacity, to the possibility of introducing or refining these methods of self-determination, and to a number of issues and principles which may be addressed in this respect. Member states are recommended to consider most of them. However, some principles regarding continuing power of attorney contain more specific advice. This explanatory memorandum describes the issues in more detail, with examples illustrating how the problems have been addressed in states that have already introduced new legislation.

45. The recommendation also deals with advance directives as defined in Principle 2, paragraph 3. The principles in Part III are broadly formulated and address general questions to be taken into account. In the future, they might be built upon in the light of developing experience on a national and international level. Advance directives, in practice, vary considerably in the matters which they cover. The more detailed the regulations are, the more they may depend on specific national legislation, especially in the health field.

46. In accordance with the revised terms of reference of the Committee of Experts on Family Law (CJ-FA) from January 2008 to June 2009, the recommendation does not deal with methods of facilitating self-determination other than continuing powers of attorney and advance directives, such as supported decision-making. This recommendation concerns anticipatory measures which address possible future loss of capacity, as opposed to the very different situation of people who are capable, but require support to exercise that capacity. These areas overlap where a person requires support in order to grant a valid continuing power of attorney or issue a valid advance directive. Therefore, the recommendation’s perspective differs from that of the 2006 United Nations Convention on the Rights of Persons with Disabilities, although the two instruments shall be considered as complementary.

1.7. Continuing powers of attorney

1.7.1. General remarks

47. There is a clear need to introduce the possibility of establishing continuing powers of attorney as an alternative to public representation, as that possibility is less restrictive of the person’s rights. It permits adults, and even encourages them, to prepare for what shall happen if and when they are no longer able to take care of their own interests. Such powers of attorney may also be created by younger people as a precaution against unexpected illnesses or accidents. This step might be considered at the same time as making a will or buying property.

48. It might be reassuring for the granters to be able to decide who, in the event of their incapacity, shall make decisions on their behalf and take care of their interests; this is often going to be someone they know and trust. They may appoint one or more persons from among their family members or friends, or a professional such as a lawyer, notary or accountant. This might be felt as preferable to a competent authority deciding who should be the person appointed and what powers should be conferred. A valid continuing power of attorney may prevent the courts or other public authorities from intervening and interfering in the granter’s affairs. To a large extent, public supervision can be avoided to a large extent and the sometimes strict rules on administration and investing capital do not have to be followed. The granters will thus be able to maintain confidentiality in respect of their economic and financial affairs. They may decide when the document may be used and what decisions it shall cover. Where a power of attorney has been designed to remain in force during incapacity, the mandate continues without interruption after the granter loses capacity.

49. In using one of these options, the granter can be more certain that he or she will not be dragged into time-consuming and sometimes costly, sensitive and burdensome judicial or administrative proceedings to establish public representation. The relatives would not have to take the potentially unpleasant initiative of instituting such proceedings, a task they are often reluctant to undertake.

50. Another important aspect might be a need to reduce the demands on public resources in this area. The growing number of people who cannot make decisions themselves, and therefore need to be represented, has put pressure on judicial and administrative authorities which are facing an increasing number of cases in which an application for a public measure of protection has to be dealt with and measures of control have to be applied to the publicly-appointed representatives.

51. Public resources thus have to be taken into consideration. Where continuing powers of attorney to become a real alternative to public representation, there can well be considerable savings for public authorities. Some states that have recently introduced the system have identified a further benefit in reducing the workload of the judicial and administrative authorities concerning measures of protection, having regard to the time required, the rising public costs and the risk that the public representation might be ineffective. Therefore, in some states continuing powers of attorney have been given priority over public measures of representation, which should be used as a last resort, restricted to serious and contested cases, when they are necessary and unavoidable in order to protect the adult concerned. The goal is to minimise the administrative and financial obstacles to making a continuing power of attorney whilst retaining appropriate protection of rights. A balance has to be found when considering rules on involvement of public authorities as regards the creation, certification, registration, notification and control of continuing powers of attorney. It is generally considered an advantage of continuing powers of attorney that they are relatively simple, flexible and effective compared to public representation.

52. There can of course be disadvantages and risks with continuing powers of attorney. One is that the granter, when the document is created, already lacks sufficient capacity or is weak and/or under undue pressure, or misled, e.g. by the person who wishes to be appointed as attorney. The satisfactory use of powers of attorney depends to a large extent on the attorney’s integrity and honesty. In most states, it is felt necessary to regulate the creation of the document, although requirements should not be too formalistic or burdensome. It is important that the granter is informed, so that he or she is able fully to understand the nature and scope of the document and the effects of the power. It is equally important that the attorney accepts the appointment. He or she must be aware that they differ from a publicly-established representation, as, depending on the national legislation, the same rules of protection may not be applicable: there might not be the same public supervision, no requirement to have important decisions approved, and few or no formalities for record-keeping. An important safeguard against misuse is the liability of the attorney. The granter therefore has to be warned in advance about possible conflicts of interests and risks of misuse. Circumstances may change in ways not foreseen at the time of signing, while at the same time the granter may have become unable to guide the attorney or to change or withdraw the document.

53. As provisions regarding the granting of powers of attorney are intended to replace public representation, the use of the power of attorney is thereafter regulated only to a limited extent, and public authorities are rarely involved in monitoring and supervision to protect the interests of the incapacitated adult. The attorney may act contrary to the intention and the interests of the granter and operate in a way which the latter, if capable, would not have accepted. Relatives may consider that if the granter were capable, he or she would have preferred their assistance. Financial abuse can occur where attorneys act in ignorance of their obligations or otherwise negligently. Unfortunately, a liability case against the attorney may be of no value if there is nobody to take the initiative or if the attorney has already spent the granter’s funds. On the other hand, a person who wishes to abuse the granter’s trust might find an easier way than having a power created. By way of example, the weaker person may be persuaded to transfer funds. Similarly, his or her signature may be faked.

54. Any measures addressing incapacity, whether anticipatory or responsive, face particular challenges where there is a history of family conflict and/or mistrust. Such measures require recognising such issues, but are unlikely to resolve the underlying causes. Depending upon the granter and the circumstances, a continuing power of attorney may be the best way of addressing such issues; or it may be fraught with difficulties, or even unworkable. Legislation on continuing powers of attorney should provide a relatively straightforward and uncomplicated framework for the principal target-group of well-functioning, co-operative families. However, it should also allow for the more sophisticated provisions and controls which may be required by a granter aware of such difficult issues and seeking realistically to establish arrangements which will be workable despite them. In some such cases, granters may be unwilling or unable to address likely problems in advance, and may be better advised not to attempt anticipatory measures, leaving incapacity – should it arise – to be addressed under responsive measures. For cases where powers of attorney have been granted but are misused, or have encountered serious conflict, or have become unworkable, it is necessary for legislators to provide for resolution of such situations, if necessary by public intervention.

55. Before making a continuing power of attorney, the granter and the attorney must, with reasonable certainty, be convinced that the document will have the intended effect after the granter has become incapacitated. They must find it to be the right solution. The situation of the granter and his or her relationship with his or her family must be taken into account. In individual cases, there might be reasons to consider the likely reaction of relatives to deterioration in the granter’s health. Furthermore, the most suitable attorney has to be identified.

56. To sum up, the wish to have an informal, simple, flexible, effective and inexpensive arrangement should be weighed against the necessity to protect persons with impairment of capacity against abuse and the consequences of unresolved family conflicts.

1.7.2. Types: in force before or upon incapacity?

57. According to the definition in Principle 2, paragraph 1, a continuing power of attorney is a mandate given by a capable adult with the purpose that it shall remain in force, or enter into force, in the event of the granter’s incapacity. This is the case, as stated in Principle 5, paragraph 2, regardless of whether it is according to a legal rule or to an individual decision by the granter. This wording of Principle 2 reflects the fact that there are different types of continuing powers of attorney concerning economic and financial matters. A continuing power of attorney concerning issues of health, welfare and other personal matters should not enter into force and be used before the granter has become incapable of making decisions in this regard.

58. The first type is a power of attorney that the attorney may use immediately after the signing and may continue to use after the granter has become incapacitated. In a number of states, the general rules on powers of attorney state or imply that the document remains in force after the granter’s incapacity. Legislation may contain an explicit rule whereby a power of attorney remains in force unless the granter expressly provides that it is terminated by his incapacity. Another possibility is a rule indicating whether the specific legislation on continuing powers of attorney covers this type of power of attorney, or not.

59. The second type is a power of attorney which enters into force only if and when the granter has become incapacitated. The phrase “enter into force” refers to the point in time when the continuing power of attorney becomes operable and the attorney becomes entitled to act. In some states, this is the only type possible, covered by the special legislation on continuing powers of attorney.

60. A third possibility the granter may choose is a power of attorney that enters into force at a later, fixed date, or when the granter informs the attorney that he or she wishes the document to be used.

61. A power of attorney concerning economic and financial matters that remain in force after the granter’s incapacity is governed by the general legislation on powers of attorney as long as the granter is able to make his or her own decisions. After that, the principles of the recommendation apply fully unless otherwise indicated. As mentioned in the commentary to this principle, the need to consider Principle 5, paragraph 3, as regards “provisions and mechanisms … required to ensure the validity of the document” is less necessary when the legislation of powers of attorney implies that they remain in force after the granter’s incapacity. Principle 7 deals mainly with powers of attorney that enter “into force … in the event of the granter’s incapacity”. It is important that Principle 10 on “Role of the attorney”, Principle 12 on “Oversight” and Principle 13 on “Termination” are also applicable after the granter’s incapacity as regards powers that have been in force before that time.

62. There might be certain advantages with continuing powers of attorney that remain in force after the granter’s incapacity. They require more contact between the granter and the attorney as they have to agree whether, and, if so, when the document should be used while the granter is still capable of deciding relevant matters. If the attorney acts while the granter is still capable, the latter can monitor whether the power of attorney is being used as intended. A further important advantage is that it is not necessary to follow the procedures described under Principle 7 when the granter has become incapacitated. This may also make it easier for third parties to accept the attorney’s decisions.

1.8. Advance directives

63. Advance directives enable a capable adult to give instructions or make wishes about issues that may arise in the event of the author’s incapacity. According to Principle 9 of Recommendation No. R (99) 4, legal representatives shall have “respect for wishes and feelings of the person concerned”. Principle 10, paragraph 2 of the present recommendation similarly states that “the attorney, as far as possible, ascertains and takes account of the past and present wishes and feelings of the granter and gives them due respect”.

64. National law may contain rules enabling a capable adult to anticipate and address in a more formalised way problems and issues which may arise after he or she has become incapacitated. The directives are addressed to the persons who may be required to make decisions on behalf of or affecting the incapacitated author. Such a person may be a publicly-appointed representative if a measure of protection is established, or an attorney acting under a continuing power of attorney. It may also be medical staff who may operate or who may make decisions concerning life-saving, life-maintaining or life-prolonging treatment, social workers or any other person who may make decisions affecting the author.

65. The most important type of legally-regulated advance directives concerns health issues. Most rules in this regard are found in special health legislation, and often in the same laws as measures of protection. The term living will” is often used, even if the directions are meant to be taken into consideration before the adult has died and therefore are not, stricto sensu, wills. They might concern life-saving, maintaining or prolonging treatment. The author may not wish to be subjected to relentless pursuit of treatment where there is no hope of improvement, recovery or cure. In the same context, the author may wish to refuse any harsh and painful treatment, or treatment which would merely serve to prolong the process of dying and suffering. The directive may deal with a wish to receive palliative care to ease suffering, a wish to receive sufficient medication to keep the adult free from pain even if this entails a risk of shortening life, and a wish to be given the possibility to die with dignity and in peace. A further possibility is a wish not to be resuscitated in a state of unconsciousness. On the contrary, the directive may be to keep the author alive for as long as possible, using whatever forms of medical treatment available.

66. The legislation in some states gives further examples of the subject matter of advance directives. For instance, the directives may contain a wish to be placed into residential care, if the author can no longer live independently at home, to be allowed to stay at home for as long as possible, or to go to an appropriate day-care centre, should circumstances necessitate and permit this. In the above cases, the advance directive may be addressed to close relatives.

67. A third type of directive concerns the choice of a representative if a court order about legal representation should be proposed.

68. In general, some advance directives are incorporated within, or linked to, continuing powers of attorney.

2. COMMENTS ON THE PRINCIPLES

Part I – Scope of application

Principle 1 – Promotion of self-determination

69. Principle 1 introduces promotion of self-determination. It encourages states to enable capable adults to make decisions about their lives for periods when they are not capable of making decisions. The requirement that the decision has to be taken by an adult implicitly excludes persons who have not reached the age of majority.

70. In paragraph 2, there is a reference to the notion of subsidiarity, which is also the topic of Principle 5 of Recommendation No. R (99) 4 (“Necessity and subsidiarity”). It reflects the trend in legislation towards giving priority to the establishment of private continuing powers of attorney and binding advance directives over public measures of protection.

71. These anticipatory measures, put in place by the adult, will accordingly have priority over all responsive measures. For example, it will not usually be appropriate to appoint a guardian with powers which are contained in a continuing power of attorney which is in operation and working well or can be brought into operation. Such appointment would be unnecessary, because of the existing appointment of an attorney. It would thus contravene Principle 5 of Recommendation No(99)4, which includes the provision that “no measure of protection should be established for an incapable adult unless the measure is necessary”. It would also contravene Principle 9 of the same recommendation, because the fact that the granter has appointed an attorney is a clear expression of the granter’s wishes and feelings. Principle 9, paragraph 1 requires that, in relation to the establishment of any measure of protection, the adult’s wishes and feelings should be ascertained as far as possible, taken into account, and given due respect. Principle 9, paragraph 2 requires that the wishes of the adult as to the choice of any person to represent or assist him or her should particularly be taken into account and, as far as possible, and given due respect.

72. Even in relation to a proposed measure of protection to address some issue not covered by a continuing power of attorney or advance directive, the fact that the adult has granted a continuing power of attorney or issued an advance directive, and the terms of such documents, represent a clear statement of the adult’s wishes and feelings which should be taken into account and given due respect.

73. In accordance with Principle 13 of this recommendation, measures of protection might become necessary upon termination of a continuing power of attorney, including termination by a competent authority under Principle 12. These are the only situations in which a measure of protection might replace a continuing power of attorney.

Principle 2 – Definitions of terms used in this recommendation

74. In paragraphs 1 and 2 the term “continuing powers of attorney” is defined as a mandate given by a capable person with the purpose that it shall enter into force, or remain in force, in the event of the granter’s incapacity.

75. The terminology varies from one state to another. In England and Wales, the term “enduring power of attorney” has been replaced by “lasting power of attorney”. In Scotland, the term “continuing powers of attorney” is used to cover economic and financial matters. In Austria and Germany, the term is “Vorsorgevollmacht”, in Switzerland, “Vorsorgeauftrag”, in France, it is “mandat de protection future”. The terminology in the Norwegian and Swedish proposals may be translated by “future powers of attorney”, and in the Finnish law by “representation powers of attorney”.

76. It is unusual to have a special name for powers of attorney as regards health, welfare and other personal matters, but in England and Wales, and Scotland, such powers are called “welfare powers of attorney”. It is equally unusual to have special terminology for powers that enter into force only in the event of the granter’s incapacity, although the terms “springing powers of attorney” and “trigger mechanism” are sometimes used.

77. The person issuing the power of attorney may be called the granter, the principal, the donor or the appointer. The person who is appointed to act on behalf of the granter may be called the attorney, the agent, the donee, or the appointee. As stated in paragraph 2, the words “granter” and “attorney” are used for the purpose of this recommendation. The word “attorney” reflects the use of the term “continuing power of attorney”, and it therefore does not imply that an attorney needs to be a lawyer.

78. Paragraph 1 uses “enter into force” in relation to a continuing power of attorney which is not operable before the granter’s incapacity. The phrase refers to the point in time when the continuing power of attorney becomes operable and the attorney becomes entitled to act.

79. Paragraph 3 contains a definition of “advance directives”, the second form of self-determination covered by the recommendation. Like continuing powers of attorney, advance directives are issued by a capable adult with the purpose of giving instructions, or making wishes concerning issues that may arise in the event of the author’s incapacity. The term “living wills” is commonly used in national legislation, even if it covers two different types of decisions, the binding instructions, as well as wishes to be given due consideration (and therefore often called “advance statements”). Paragraph 3 uses only the term “advance directives” but, as described in the definition and expanded in Principle 15, paragraph 1, the term covers both instructions with binding effects and wishes. Advance directives are addressed to persons who may take decisions during the granter’s incapacity. They might in particular be addressed to medical staff, social workers, legal representatives, or attorneys appointed under continuing powers of attorney. If the directive takes the form of a wish, it shall, as mentioned in Principle 15, paragraph 1, be given due respect.

80. In the definitions contained in paragraphs 1 and 3, the term “capable” is used without defining it. It is necessary that the granter has capacity relevant for this particular document. English case law has established that the granter must know who the attorney will be, what his or her task will be when the granter has become unable to act, and that the document can be withdrawn without the intervention of a court. If the power is of a general nature, the granter must have understood that the attorney may make decisions in all areas and dispose of all of his or her assets.

81. The title of the Recommendation No. R (99) 4 is “Principles concerning the legal protection of incapable adults”. The term “incapable adults” is not used in the present recommendation, as it is replaced by the more modern “adults with incapacity”, but the terms cover the same reality. It was not felt necessary to define it, as reference can be made to Part I of Recommendation No. R (99) 4 and the definition provided there.

82. Further explanations are found in the explanatory memorandum to the Recommendation No. R (99) 4 (paragraphs 15-20). The incapacity may only be temporary as the granter may recover. It may also be partial, in which case it is necessary to decide if it is of such nature that it prevents the person from making decisions about issues covered by the continuing power of attorney. Indeed, there is no place in modern incapacity law for the outmoded and factually inaccurate concept that people are either completely capable or completely incapable. All of the recommendation’s references to capacity, incapacity and impairment of capacity should be taken as meaning “relevant capacity”. This is particularly important in relation to powers about health, welfare and other personal matters, where legislative practice is to permit the attorney to make only decisions of which the granter is incapable so that in some cases the attorney may exercise only some of the powers conferred by the document. As already indicated, relevant incapacity is obviously independent of an adult’s age.

Part II - Continuing powers of attorney

Principle 3 – Content

83. Principle 3 deals with the content of the power of attorney and requires states to consider whether it should be possible to cover economic and financial matters, as well as health, welfare and other personal matters.

84. The main rule is that the granter is free to decide on the content of the document. It is important that such content is clearly described. Because of its special nature and due to the fact that it will be used when the granter may no longer be able to influence it, certain legal requirements about its content may be needed. In most states, a continuing power of attorney is unilateral at the time of granting and becomes a contract upon subsequent acceptance by the attorney. In others, it takes the form of a contract between the granter and the attorney from the outset.

85. As stated in Principle 5, paragraph 2, the document, except in states where such is the general rule, shall explicitly state that it shall enter into force or remain in force in the event of the granter’s incapacity. These two types of powers of attorney are described above in Part I, 1.7.2.

86. Traditionally, powers of attorney refer to “economic and financial matters” or use the terminology “property and financial matters”. This has also been the case with continuing powers of attorney. Economic and financial matters may, inter alia, include:

- buying or selling property,
- dealing with the granter’s mortgages, rent and household expenses,
- insuring, maintaining and repairing the granter’s property,
- repaying interest or capital on any loan taken out by the granter,
- opening, closing or operating bank accounts,
- obtaining and giving access to the granter’s financial information,
- claiming, receiving and using all benefits, pensions, allowances and rebates,
- receiving any income and other entitlements on behalf of the granter,
- accepting or renouncing an inheritance or legacy,
- investing the granter’s savings,
- making and accepting gifts,
- paying for medical care and residential care or nursing home fees,
- applying for any entitlements to funding for care and social care,
- representing the granter in certain court proceedings.

87. In recent years, it has become more common to widen continuing powers to health, welfare and other personal matters. In accordance with the principle of self-determination, the person concerned makes decisions in such matters when he or she is still capable of doing so. When he or she becomes incapacitated, and if the power of attorney so provides, the attorney can make decisions for him or her. The powers might include a whole range of primarily non-economic decisions, for instance:

- where the person lives and with whom, for example the place of provisional or permanent residence,
- assessments for and provision of community services,
- whether the granter works and, if so, the kind and place of work and the employer,
- education and training,
- in which social or leisure activities the granter should take part,
- right of access to personal information about the granter,
- arrangements needed for the granter to be given medical, including dental or ophthalmologic, treatment,
- consenting to or refusing medical examination and treatment,
- consenting to social care,
- complaints about the granter’s care and treatment.

88. There are differences between economic powers on the one hand and personal powers on the other. The latter should not be used as long as the granter is capable of making such decisions him/herself. Therefore, a power of attorney about personal matters should be operable only during the granter’s incapacity. The competent authority which, according to Principle 12, paragraph 2, may intervene, may be different from the one dealing with economic matters. Furthermore, as mentioned in Principle 3, some particular matters may be excluded. Finally, in most jurisdictions, the bankruptcy of the granter or a sole attorney will end economic powers, but not welfare powers.

89. The power of attorney is often of a general nature, covering all economic and financial, as well as health, welfare and other personal matters. However, it might be preferable to provide in the document or in legislation examples of more important decisions the attorney is authorised to make, as it reinforces the awareness of the granter as to the step he or she is taking in signing the document.

90. There may be reasons for creating two continuing powers of attorney, one about economic and financial matters, and another about health, welfare and other personal matters, as the granter may not wish his or her business associates to learn, through the document, about the latter matters.

91. It is possible to limit the power of attorney to certain specific areas, either by listing the areas covered, or by excluding some of them. The power may also be limited in time. The risk with such limitations is that a need for decisions may arise concerning matters which the attorney is not authorised and the granter is unable to deal with. It might then be necessary to obtain a court order of legal representation covering such decisions.

92. The granter may insert binding conditions, restrictions and instructions to the attorney in advance directives, for example, for a house to be bought or sold, or funds invested. Due to the importance of such decisions, they have to be considered carefully, and sometimes it is recommended to grant the continuing power of attorney unconditionally. It is preferable to issue a special document about such directives, as it might not be advisable that a third party - who wishes to consult the power of attorney document - becomes aware of such conditions. Such advance directives should comply with Principle 16.

93. It is essential to the principles of self-determination that legislation should be widely framed, enabling individual granters each to select what is best for them in relation to the matters discussed above, to confer wider or narrower powers as they may choose and to decide what limitations or conditions should be imposed.

94. As mentioned in Principle 3, states should consider whether some particular matters should be excluded. Any such exclusions should be kept to a minimum. Certain legislation contains a rule that some questions are of such a character that the attorney is not permitted to deal with them and that they are therefore excluded. Examples are agreeing to marriage or a registered partnership, adoption, acknowledgement of paternity or maternity, or making or revoking a will. Some health issues may also be excluded, as they may pose various problems, such as may be the case as regards the representative appointed by a competent authority. If there is a possibility to exclude or include health and social welfare issues, this might necessitate a change of the relevant health and social welfare legislation.

Principle 4 – Appointment of attorney

95. Principle 4 deals with the appointment of the person who has a mandate to act after the granter’s incapacity. The word “attorney” is, as mentioned under Principle 2, paragraph 2, closely linked to the term “continuing power of attorney”, and this does not mean that the attorney must be a legal professional or a person with other formal qualifications.

96. The granter’s choice of attorney is crucial to the success of the power of attorney. It is important that the granter considers the person or persons whom he or she wishes to appoint as appropriate, as stated in paragraph 1. The granter should have confidence in the appointed person(s), as he or she will be unable to control the attorney’s decisions, to appoint a new attorney, or to revoke the power of attorney when he or she becomes incapacitated. The appointed person(s) must be relied upon to take care of the interests of the granter. An attorney must have the necessary integrity and ability to resist a wish from family members to use money outside the limits of the power. If these conditions are not fulfilled, there is a risk that the power of attorney will not function properly. A family member may often be preferred by the granter, but he or she may also wish to appoint his or her lawyer, notary, accountant, or simply a friend.

97. According to paragraph 2, the granter may appoint more than one attorney and may appoint them to act jointly, concurrently or separately, or as substitutes. Clearly, if the granter makes such a choice, it must be specified in the document.

98. Two or more attorneys acting jointly may be the solution in cases where there are several children involved, as a reasonable assurance against misuse or undue concentration of power, or to reduce the risk of family dispute. If one of the attorneys cannot or will not take on the task, or if one subsequently resigns or dies, it should be made clear either in the document or in the law whether the other(s) may continue to act. It might be prescribed, either in the document or by law, that if three or more attorneys are appointed to act jointly, a decision by the majority might be deemed to be a decision of all.

99. The appointment may be concurrent, as there may be different attorneys each dealing with some matters, for example one acting as regards the economic and financial matters, and another dealing with health, welfare and other personal matters. The reason might be a wish to ensure that someone who has a special competence in the relevant field makes adequate decisions.

100. If the attorneys may act separately, any risk of conflict should be addressed in the continuing power of attorney document. Otherwise, a solution may exist in the law relating to all powers of attorney, or it may be considered necessary to provide a solution.

101. Obviously, a variety of combinations is possible. It may be prescribed that a decision by one of the attorneys is sufficient in most cases, but that two or three attorneys have to agree on major decisions, for example, the sale of a house. Legislation may also prescribe that if the granter has not decided otherwise, each attorney may exercise his or her authority individually, but in consultation with the others.

102. A final possibility is to appoint one or more substitute attorneys to act in case the first-mentioned attorney is not able or willing to take on the task, has resigned or has died. If more attorneys are appointed, it may be prescribed that they shall act successively in the order in which they are named.

103. According to paragraph 3, states may consider such restrictions as are deemed necessary for the protection of the granter. In some legislation, there are requirements as regards the choice of the attorney. Usually the attorney has to be an individual, natural person, but it might also be a legal person, for example an organisation or an association, sometimes even in cases where the mandate concerns health, welfare and other personal matters. The appointed natural person must be an adult and capable. If the power of attorney covers economic and financial matters, the attorney must not be a bankrupt. One jurisdiction prescribes that the attorney may not be employed by, or closely associated with, a hospital or another institution where the granter is living. Other requirements may be included in a certification or registration procedure as described under principle 8.

104. The formal arrangements between the granter and the attorney may vary. The continuing power of attorney may take the form of an agreement between them, but it may also be unilateral. It is preferable that the attorney is informed about the creation of the power, and has at the time of creation accepted the role or prospective role. The two persons are thereby able to discuss what shall happen if and when the power is used. It may be advisable that the attorney signs the document, as is sometimes prescribed. Some granters may not wish to disclose their intentions to the attorney and therefore may instruct a third person to hand over the power once they have become incapacitated. In this case, it is up to the attorney to accept or refuse the mandate. Even when the power of attorney is granted unilaterally, there should be a requirement for acceptance by the attorney (and by each successive substitute attorney where substitutes are appointed) before the attorney may commence to act. A contract is concluded by such acceptance.

105. A further question is whether the attorney must act personally or may delegate powers to a third person without a legal basis in the document. This question is not addressed in this recommendation.

Principle 5 – Form

106. The form of the continuing power of attorney is dealt with in Principle 5. It is supplemented by Principle 8, which concerns certification, registration and notification.

107. Paragraph 1 requires a written document. It shall be signed or confirmed by the granter. It is preferable that the document is dated, as required by some legislation.

108. Paragraph 2 deals with the requirement for the granter to state in the document when the continuing power may be used, if this is not regulated by the legislation. As described above in Part I, 1.7.2, in some legislation powers of attorney normally remain in force after the granter’s incapacity. If under such a rule the granter wishes for the power of attorney to be brought to an end in the event of his or her incapacity, this must be stated explicitly in the document. In other legislation, it is the general rule, that a continuing power of attorney enters into force only in the event of the granter’s incapacity, and then it is not necessary for the granter to state that fact. In states where powers of attorney are presumed to terminate in the event of the granter’s incapacity, and the legislation about continuing powers of attorney covers both possibilities, it is necessary for the granter to state explicitly in the document if it is the intention that the power of attorney shall remain in force or that the power should enter into force only in the event of the granter’s incapacity.

109. A further question not addressed in the recommendation is whether a type of form should be offered. It might be a form issued by an official body. In states where forms are found, they offer a number of choices as regards particular questions. Various forms might be accessible via the internet. It may be an advantage that it is simple and cheap to produce the document, perhaps seeking advice on the internet or by using a “do it yourself kit”. The risk is that the granter might not consider carefully enough the steps to be taken, which may facilitate abuse. The option of an individualised document prepared with professional advice should always be available. The purpose of using a more detailed form is to ensure that the granter understands all of the powers which are granted, and can delete any specific powers which he or she does not wish to confer.

110. It should be considered whether professional assistance should be recommended or even made compulsory. In some legislation, there is a requirement that a professional, such as a lawyer, a notary, or a court official assists, at least if the decision covers more important matters, for example major medical treatment, a change of the place of the granter’s habitual residence, and important economic and financial matters. This implies that the granter has been duly informed about the consequences of the document and the possibility of revocation.

111. Since continuing powers of attorney will be effective at a time when the granter is no longer able to intervene or to revoke the power, it is important, as stated in paragraph 3, that states consider what provisions and mechanisms may be required to ensure the validity of the document. Safeguards and procedures may be considered necessary at the time when the document is signed or confirmed. They are probably more necessary when there is specific legislation covering both types of continuing powers of attorney, those that remain in force and those that enter into force in the event of the granter’s incapacity, and less necessary if the use after incapacity is a consequence of general rules on powers of attorney. The purpose of regulation is to confirm that the granter, when the document is created, is capable of doing so and not subject to undue influence, and perhaps also that he or she knows the content of the document and that he or she is informed about or confirms that he or she is aware of its consequences. The reason for such considerations is that the granter, at the time of the signing, may be frail and somebody may have an interest in obtaining a mandate to act when the granter is no longer able to do so. A parallel can be drawn with procedures for making wills, and in some legislation they are followed as models. The requirements must be weighed against the consideration that it should not be too difficult and bureaucratic to create the document.

112. In some legislation, it is possible to handwrite the document from beginning to end and if this is not the case, the granters have to sign or confirm their signatures in the presence of one or more witnesses. In other legislation, the use of witnesses is the only possibility. These witnesses are required to be independent and unbiased and, for this reason, neither the attorney nor persons connected to the granter or the attorney may act as witnesses. There might be a requirement that the witnesses must have known the granter for a specified time.

113. Other alternatives require professional involvement. It may be required that the document be established or certified by a notary, a court official or a person with other specific qualifications.

114. Depending on the national system, the primary purpose of a certifier or witnesses is to confirm, if necessary by taking professional advice, that the granter has capacity to grant the continuing power of attorney, as implied by the document. They may be asked to certify that the granter signed voluntarily, that there are no reasons to believe that the granter acted under undue influence, that there is no fraud, and that the document is not, for other reasons, invalid. In some legislation, the certifier or witnesses are required to confirm that they are convinced that the granter, at the time of signature, has knowledge of the character and the effects of the document or to confirm that the granter has an awareness of them. The certifier or witnesses may be required to read the document aloud if the granter has not confirmed his or her knowledge of the document.

115. The role of the appointed attorney at the time of signature is generally not described. In some legislation, a continuing power may take the form of a contract, in which case the attorney is a party. In other legislation, where the power is granted unilaterally, the attorney may be obliged to sign the document, thus confirming his or her willingness to take on the task, or to provide signed acceptance separately, for example in a registration application. The attorney may have to confirm a readiness to take the necessary steps to have the document certified and registered when the time comes. If the signature of the attorney is not required, the granter runs the risk that, when it is time to act, the appointed person may not become aware of the document, or may not be willing to act as attorney.

Principle 6 – Revocation

116. Principle 6 deals with the granter’s ability to revoke a continuing power of attorney while he or she is still capable of doing so. A continuing power of attorney, because of its nature, and particularly since it will have effect after the incapacity of the granter, should not be irrevocable. It is also one way of rectifying undue pressure at the time of the signing. This principle applies when the continuing power of attorney is made in the form of a contract, as well as when it is granted unilaterally. The principle does not prevent states from regulating the possibility of changing or amending the mandate.

117. The reference to Principle 5, paragraph 3, indicates that states should consider what provisions and mechanisms should be in place to ensure the validity of the revocation, for example to establish that the granter has the necessary capacity to make the decision to revoke. Revoking the power potentially raises the same issues and concerns as the granting of the power.

118. An attorney who has knowledge of the power of attorney must be informed about a revocation, as must third parties appointed to monitor the attorney. If the document is already entered into a register, it is necessary to register the revocation.

119. Termination of the continuing power of attorney during the granter’s incapacity is dealt with in Principle 13.

Principle 7 – Entry into force

120. As mentioned above under 1.5 Terminology, this recommendation uses “enter into force” in relation to a continuing power of attorney which is not operable before the granter’s incapacity. The term refers to the point in time when the continuing power of attorney becomes operable and the attorney becomes entitled to act.

121. According to Principle 7, paragraph 1, states should regulate the manner of entry into force of the continuing power of attorney in the event of the granter’s incapacity. Where, according to legislation or the terms of the document, a power of attorney already in force remains in force in the event of incapacity, there is no need for special provisions about the continued use, unless some form of registration or notification is required to trigger enhanced monitoring.

122. In situations covered by this principle, it is necessary to establish the incapacity of the granter.

123. Other considerations have to be taken into account. It is important that the granter, if he or she is able to understand the information, is made aware that the attorney intends to use the document. Close family members may also have an interest in being informed that a continuing power has been granted as well as of its content, and that it is now going to be used by the attorney. Furthermore, the attorney may need certification to act as regards third parties, for example banks, which may require proof from an independent source of the existence and validity of the mandate, and that it has entered into force.

124. Various procedures are used to establish the existence of the requirements for the entry into force of the document. As stated in paragraph 2, states should consider what evidence should be required to determine the granter’s incapacity. Those procedures must protect the confidentiality of the detailed medical information upon which incapacity is certified, if such certification is required.

125. The decision about the entering into force of the power may be made in different ways and Principles 7 and 8 do not give examples or express preferences, although Principle 8 lists some possible mechanisms.

126. Application of the principle of self-determination might allow the granter to decide him/herself what kind of evidence about his or her health situation shall be produced, whether or not it is the intent of the legislator that there should be any public involvement. The granter might choose to make it the duty of the attorney to take action and decide to use the power. In those countries where it exists, a medical certificate about the condition of the granter normally will be necessary and sufficient. There might be a provision, in the legislation or in the document, that the attorney has a right to obtain such a certificate regardless of the rules on professional confidentiality. The attorney may, as described below under Principle 8, be required to notify close relatives, as specified in legislation or by the granter. According to the general rules on powers of attorney, the attorney may be held responsible to third parties for ensuring that the power is valid. The attorney has perhaps not been informed in advance of the existence of the document, but that is a risk taken by the granter.

127. Another possibility is that the granter establishes a procedure in the document whereby a third person has to make a written declaration that the granter has become incapacitated, perhaps requiring that a medical certificate about the incapacity be attached or referred to. In some states, such arrangements are imposed by law. A third party holding the document, while the appointed attorney has no knowledge of it, will have the same duty to decide that it is time to use the power and to hand over the document to the attorney. Such a procedure reduces the risk of the power being used before intended.

128. Legislation may require that a court or the appropriate administrative authority be involved to certify that the document is effective. This often implies a registration procedure. Both procedures are mentioned in Principle 8 and described below.

129. The choice between the possibilities described depends on the extent to which legislators wish public authorities to be involved. Public involvement usually means a delay in the use of the power of attorney and more work for public authorities. It is important that the power of attorney is accepted by third parties, who might be less inclined to do so if the attorney makes the decision him/herself, rather than if the attorney is able to produce a public certificate. Where evidence of medical certification of medical incapacity is requested by third parties, the certificate produced should contain only certification of the fact of incapacity, and not any detailed medical information on which that conclusion is based.

Principle 8 – Certification, registration and notification

130. Principle 8 lists three different systems which states should consider introducing: certification, registration and notification. They apply in different situations as they may refer to the time of the creation of the power or to the time when it enters into force. Their purposes may vary. They may constitute alternative solutions, or may supplement each other. Once again, it is necessary to find the right balance between the self-determination of the granter and the need for some degree of public involvement.

131. Certification may be required or available at any time and may serve various purposes.

132. Certification may be carried out by a public authority for various purposes. Such a certificate may be issued as part of a registration procedure connected with the creation as described below, and it is then considered to be a certificate of registration, but it might also be independent of such procedure.

133. As already indicated above under 1.3, states which have ratified the Hague Convention of 2000 may, according to Article 38, deliver, on request, a certificate to the person entrusted with protection of the adult’s person and property, indicating the capacity in which the person is entitled to act and the powers conferred. A model form is recommended for use. According to the form, the validity of the power of representation is confirmed.

134. Another possibility is certification when a continuing power of attorney enters into force, to confirm that the granter has now become incapacitated, and that other possible procedures, mentioned under Principle 7, paragraph 1, have been duly followed. The purpose may then be to supply the attorney with a certificate stating that he or she has authority to act.

135. As regards continuing powers of attorney that remain in force as well as those that enter into force, the certificate may be sent to the attorney or, where combined with a registration procedure, to whoever initiated the registration. Such a certificate, perhaps annexed to an authenticated copy of the document, may be required for submission to third parties (for instance banks where the granter has accounts or deposits) in order to prove the appointment of the attorney and that he or she has authority to carry out certain transactions on behalf of the granter.

136. In countries where a notarial system exists, a notary could be given the task of issuing a certificate to the effect that the power of attorney is to enter into force. This may follow submission of the power of attorney and, where it is required, a medical certificate about the granter’s incapacity to the notary. The notary would confirm the powers conferred upon the attorney in a certificate and issue it to the attorney. Any third person may rely on such a certificate.

137. Rules about registration of continuing powers of attorney exist in a number of states and registration may be voluntary or compulsory. Rules vary as regards the time of the registration and the procedure followed by the registration authorities. The purpose of the registration may vary and is to a large extent dependent on whether there is a certification procedure attached to the registration as well on the rules about access to the register. The registration may be carried out with the competent authority, in a central register of notaries, or in a central data bank.

138. Registration most often takes place following upon creation of a continuing power of attorney and may be a part of the mechanism to ensure the validity of the document, mentioned in Principle 5, paragraph 3. If registration is compulsory, the power may not be used by the attorney before it is registered. This may be the case both as regards powers of attorney that remain in force after the incapacity of the granter and powers that only enter into force in the event of impairment of capacity. If a lawyer or a notary has taken part in the creation of the document, the application for registration may be one of the lawyer’s tasks. Another possibility may be that the application may be lodged by the granter as long as he or she is still capable, or by the attorney on an application form which includes acceptance of appointment by the attorney and provides other relevant information.

139. The registration authority may have different tasks to perform. It may check the validity of the document as described above under Principle 5, paragraph 3, for instance whether witnesses were present, and confirm that the required statements form part of the document. There may be a duty to notify the granter and the attorney about the application for registration, and possibly close relatives, as described below. This may result in an intervention from the granter and perhaps another person having the right to do so. The authority may then be required to investigate. It may be helpful to include registration of the attorney’s acceptance of the mandate, of any resignation or revocation, of any event causing a substitute attorney to take over, or any other event relevant to the effectiveness or continuation of the power of attorney.

140. Registration may also take place when a power of attorney is to enter into force in the event of the granter’s incapacity. The granter may also want registration to be postponed until a specific event has occurred. Then, the application may form part of the procedure and manner described above under Principle 7, paragraph 1. Usually, the attorney applies to the authority for registration if he or she finds that there are good reasons to believe that the granter has become incapacitated. The attorney, before applying, often has to provide a medical certificate and occasionally, as described below, documentation attesting that the granter (and sometimes others, such as family members) have been notified accordingly. If the authority receives protests from interested persons on the grounds that there is a real and actual risk of misuse of the power, or that there are good reasons to believe that the person appointed is not suitable for the task, this has to be taken into consideration by the authority.

140. In other legislation, registration is dependent on the wishes of the granter and therefore is voluntary. It requires that the document be created with the assistance of a lawyer or a notary, who attends to registration. The granter may be informed about the registration.

142. If registration of a continuing power of attorney is a possibility, the question arises concerning who may have access to the information contained in the register. In some legislation, courts and other authorities may obtain information from the register, in particular if the registration is carried out by a notary. The relevant court may wish to ascertain whether the adult concerned has granted a continuing power of attorney. Health and social welfare authorities may also wish to learn about the existence of a document, its content and who the decision-maker is. In other legislation, the register may be consulted by the granter, relatives and third parties should the need arise, but also by courts or other authorities, such as social welfare authorities. When the register is accessible to the public, then banks and other third parties, when approached by the attorney, may wish to verify whether a power of attorney is registered. Access to the register may depend on legislation, in particular concerning data protection.

143. In Principle 8, notification is also mentioned. It is particularly important that the granter be notified of events such as certification, registration, revocation, entry into force, or termination, whether or not the granter is believed to have become incapable, except where there is compelling reason not to do so. It may be a requirement that the attorney notify, or it may be part of a registration procedure. It is important that a granter should be made aware that the continuing power of attorney is about to enter into force and that the attorney intends to begin to act. The granter may then intervene on the grounds that he or she is still capable of revoking the power of attorney.

144. There may be other persons or bodies who should be notified, under the terms of the power of attorney, for example the granter’s spouse, partner and/or close relatives. Such persons may also have an interest in being informed that a continuing power has been granted, as well as of its content, either when the document is created or once it enters into force. Notification gives the persons informed a possibility, within a fixed period of time, to intervene or protest by contacting the competent authority. They may be of the opinion that the granter is still capable of making decisions; they may claim that the document is invalid because the signing procedure has not been followed, that the granter was under undue pressure at the time of signing, or that the mandate has been revoked. Furthermore, they may find that the appointed attorney is unsuitable for the task, perhaps because of conflicts of interest or because of a risk of misuse.

Principle 9 – Preservation of capacity

145. As stated in Principle 9, the entry into force of a continuing power of attorney shall not as such affect the legal capacity of the granter. The legal situation then accords with Recommendation No. R (99) 4 under which appointment of a legal representative does not decrease or completely remove the adult’s legal capacity. The granting or entry into force of a continuing power of attorney can never disqualify or prevent the granter from doing or deciding anything of which he or she is capable.

146. A continuing power of attorney that can only be exercised in the event of the granter’s incapacity may not be operated during periods when the granter has regained capacity.

Principle 10 – Role of the attorney

147. Principle 10 deals with the role of the attorney when the mandate is exercised during the granter’s incapacity.

148. As a general rule, the attorney is bound by the scope, content and limitations of the powers conferred upon him or her. As stated in paragraph 1, the attorney shall act in accordance with the power of attorney and in the interests of the granter. Decisions should be in accordance with what the granter, if capable, would have decided, in so far as this can reasonably be ascertained. Possible supervision of whether the attorney is doing so is described below under Principle 12.

149. Circumstances may arise in which the attorney becomes aware of a need to do something not authorised by the continuing power of attorney. Some states have procedures under which the attorney may seek specific authority, but not an amendment to the continuing power of attorney.

150. According to paragraph 2, the attorney, as far as possible, informs and consults the granter on an ongoing basis to the extent that this will be meaningful, which depends upon the granter’s condition. It is essential that there is a good relationship between the attorney and the granter. Informing and consulting the granter about decisions which the attorney intends to make and about the state of the granter’s economic and financial matters is necessary, so that the granter has the opportunity to express an opinion or, to the extent capable, give instructions. Paragraph 2 has a parallel in the Recommendation No. R (99) 4, Principle 9, about “respect for the wishes and feelings of the person concerned” when implementing a measure of protection, in that it provides that the attorney shall take the granter’s past and present wishes and feelings into account and give them due respect. Such past wishes are especially mentioned because advance directives, as mentioned above under Principle 3, may be addressed to an attorney to whom a continuing power of attorney is granted.

151. Paragraph 3 states, that the granter’s economic and financial matters, as far as possible, should be kept separate from the attorney’s own. The two persons’ assets and incomes should, in principle, not be intermingled. The attorney shall therefore ensure that share certificates, bank accounts and other documents are kept separately and in the name of the granter.

152. In paragraph 4, it is stated that the attorney keeps sufficient records about dealings and transactions made under the power. The extent of the duty to keep a file of the paperwork depends on the nature of the mandate, and must be proportionate. If there is significant capital, it is necessary to keep records on major decisions and transactions. It might normally be expected to preserve bank records, receipts of larger payments, as well as documentation about major decisions. In the case of a power of attorney about health, welfare and other personal matters, major decisions must be recorded. It may be useful to make notes on a regular basis.

153. One reason for the requirement to keep records is - as mentioned in Principle 10 - that the attorney must be able to demonstrate the proper exercise of his or her mandate. Such records shall be presented when the mandate comes to an end, for example if the granter recovers and becomes capable again, in the event of the granter’s death, or when a public measure of representation has been decided. Furthermore, the attorney must, as mentioned in the present principle, be able to produce at least on request documentation or accounts to a third person mentioned in the continuing power, for example a person appointed to supervise the attorney, as stated in Principle 12, paragraph 1. This may be the granter’s lawyer or accountant. A competent authority may, as an important element of the supervision mentioned in Principle 12, paragraph 2, in individual cases require the attorney to present accounts, and it may be necessary that they cover the whole period of the mandate.

154. As regards the role of the attorney, it is questionable if and to what extent, the general rules of national legislation about powers of attorney shall apply as a supplement to or a modification of these special powers. Such legislation may regulate the protection of third parties, the attorney’s liability and the extent of his or her obligations, and the conditions under which the document can be deemed invalid. Certain legislation on continuing powers of attorney refers to these rules. In other legislation, some or many of the general rules on powers of attorney are repeated in the special legislation.

Principle 11 – Conflict of interest

155. States should, as stated in Principle 11, consider regulating conflicts of the granter’s and the attorney’s interests. It could be presumed that a conflict of interest arises in the case of any transactions between the attorney, acting for him/herself, and the attorney, acting on behalf of the granter. Rules may be required to specify or regulate situations in which such transactions may be permitted.

156. A very important and - for continuing powers of attorney - a particularly relevant issue is the requirement that the attorney acts impartially. The attorney may be a member of the family of a granter, who previously has made donations to the attorney, as well as to relatives, and the attorney may feel that such practice should continue. In other situations, the attorney may consider it appropriate to buy the granter’s house for him/herself. The attorney may also request an exceptional remuneration.

157. Other typical examples of conflicts of interest are when attorneys wish to give gifts to themselves, their spouses or children, or other persons. In legislation there may be very detailed rules to prevent conflicts of interest, often inspired by what is prescribed as regards representatives appointed by competent authority. One example is that the attorney has no right to represent the granter if there is a possibility of a contract between the granter on the one hand, and the attorney, his or her spouse or partner or somebody else being represented by the attorney, on the other. Another, even more specific rule, is that the attorney’s child, grandchild, siblings, parents or grandparents or such person’s spouse or partner may not be such contracting parties.

158. On this topic, as with others, a balance between protection and self-determination can be achieved by having clear rules as to conflict of interest, but allowing the granter to permit – by express provision in the power of attorney – what would otherwise be a prohibited conflict. It can be particularly relevant in this situation to have a system of certification that the granter fully understands the meaning and effect of the document, has capacity, and is not subject to undue influence (cf. commentary above on Principles 5 and 8). The granter should thus be free to specify in the document that the attorney may make individual decisions that he or she otherwise could not have made. There may be detailed instructions about who may receive gifts, the maximum value of gifts, the continuation of previous practices, or measures taken for tax-planning purposes. To a certain extent, legislative rules have been designed to overcome some specific conflicts of interest. The attorney may be allowed to make usual gifts on customary occasions to persons, including him/herself, who are related to or connected with the granter, or gifts to a charity to which the granter may have made or might have wished to make gifts.

159. The granter is free to decide that the attorney may be reimbursed for expenses incurred in connection with the task. The granter may decide that the attorney should be entitled to specified remuneration if the assistance is substantial, or when a professional, for example the granter’s lawyer, notary or accountant, is appointed as attorney (except in states where a professional attorney is automatically entitled to remuneration). If nothing is prescribed in the document, the attorney may expect to have his or her out-of-pocket expenses in connection with the task reimbursed.

Principle 12 – Supervision

160. A basic concern is that continuing powers of attorney be used in accordance with the granter’s intention and in his or her interests, as mentioned in Principle 10, paragraph 1. The starting point is that the decision to appoint a trusted attorney and to confer upon him or her power to act is a calculated risk taken by a capable granter, with the result that the attorney is allowed, as a rule, to do whatever he or she decides within the scope of the powers conferred with the granter’s capital, income and property once the latter becomes incapacitated. The granter should, at time of signing, be informed and aware of the fact that the attorney will act without automatic supervision. He or she might well see it as an advantage that public authorities are not involved. On the other hand, it can be pointed out that the risk of misuse may be overestimated, and that the same risk might exist without a document. An essential feature of a continuing power of attorney is therefore that public authorities are not automatically and routinely involved in supervising all actions of the attorneys.

161. According to Principle 12, paragraph 1, the granter may establish a private supervision system. A third person may be appointed in the document to supervise the attorney during the granter’s incapacity. He or she may be called a supervising attorney. The attorney may be required to produce annual accounts with documentation or regular reports to the appointed third person, who may be given power to veto certain specified decisions, such as larger gifts or sale of the granter’s house. The granter may have prescribed that any request for remuneration from the attorney should require authorisation by this third person. The legislation may impose an obligation that, if no supervising attorney is appointed, an annual accounting shall be provided to the closest relative (other than the attorney him/herself) of the granter. The purpose of privately-organised supervision is to ensure that the attorney takes proper care of the interests of the granter, that he or she does not act in situations where there is a potential conflict of interest, and that there is no misuse.

162. Paragraph 2 deals with involvement of public authorities if a person with an interest in the economic and financial matters or the health, welfare or other personal matters of the granter requests it, or if the authority in the individual case finds that there are reasons to investigate the attorney’s exercise of the mandate. One example is that requests for supervision may be made by the granter, the attorney, the closest relative of the granter and a recipient of an accounting, the granter’s spouse, partner, parents, siblings or descendants.

163. The point at which a need for public supervision arises depends on the nature of the problem. Supervision is probably necessary in case of risk of misuse of the power, for example if the attorney wishes to use the money for his or her own benefit or to give relatives large gifts. The attorney may also have shown him/herself to be unable to perform the task. A particular problem is whether the power should be terminated in case of conflicts between the attorney and close family members about what is in the granter’s interest. It is probably not sufficient that the relatives are simply dissatisfied with the attorney or his or her performance, as long as he or she takes care of the interests of the granter, according to the provisions of the document.

164. If the competent authority has reason to believe that the interests or the welfare of the granter may be at risk, such an authority should have appropriate powers and duties to investigate. These may include requiring the attorney to produce accounts and documentation concerning the use of capital and income as well as reporting about decisions and failures to do something. Furthermore, the authority might examine the living conditions of the granter to find out if his or her interests are being taken care of satisfactorily by the attorney.

165. If the competent authority finds that there are clear and specific reasons for intervention, the available forms of intervention vary greatly between different jurisdictions. The attorney may be required to file accounts yearly or for a certain period, to report on decisions as regards personal matters and to produce documentation. He or she may be given instructions as to the exercise of the functions, for example concerning gifts. In some legislation, the scope of the power may be reduced. It should not be possible to extend the powers contained within the continuing power of attorney (cf. commentary on Principle 10). The attorney may be replaced by another one, and the power may be declared invalid or terminated. In some legislation, the only decision available is to establish a representation whereby the continuing power of attorney becomes null and void. The only method of intervention singled out in Principle 12, paragraph 2, is the termination of the continuing power of the attorney in part or in whole.

166. Occasionally, there is deviation from the above pattern. In such cases, when the power enters into force, the attorney has always to make a statement to the relevant public authority about the economic and financial matters of the granter, the assets and income, as well as the debts and expenses. The granter may have prescribed in the document that the attorney must file accounts and other information with the authority and that the attorney cannot make certain important decisions without permission, for example under the same conditions which apply to a representative appointed by a competent authority.

167. Further possibilities for supervision, not addressed in the principles, may exist in general law relating to all powers of attorney, or may be considered necessary. While the principle of self-determination would normally minimize the provision for judicial or other intervention in the operation of continuing powers of attorney, circumstances can arise where it may be better that there be such intervention in relation to a particular issue, rather than that the continuing power of attorney should become unworkable, or the attorney should resign because of unresolved difficulties. In some states, there are procedures under which a court or other competent authority may give authorisation or directions to an attorney.

168. A wide range of possible circumstances could be addressed in this way. In some states, when an attorney is unsure about whether a particular matter is within his or her competence, or about how he or she should decide a difficult and important matter, a decision in the matter by a court or other competent authority may provide clarity to all concerned, and reassurance to the attorney. In other states, certain specified matters must be referred to a court or other competent authority for authorisation.

169. Joint attorneys may disagree with each other, a close family member may disagree with an attorney, or a third party – because of genuine doubt or for no good reason – may be reluctant to accept an instruction or decision from the attorney. There may be questions about whether, in a particular case, formalities for creation, certification or registration have been properly followed.

Principle 13 – Termination

170. Paragraph 1 deals with termination of a continuing power of attorney when the granter is no longer capable. When the granter is still capable, he or she, according to Principle 6, is free to revoke the power of attorney.

171. It is left to states to determine the circumstances under which the power of attorney should be terminated. One example of termination in part or in whole is mentioned in Principle 12, paragraph 2. An intervention by a public authority where the attorney is not acting in accordance with the continuing power of attorney may take the form of a termination.

172. The death of the granter may be another reason for termination, but in certain legislation there is a possibility for the attorney, after the granter’s death, to continue to act temporarily or as regards certain decisions. This needs to be carefully co-ordinated with the role of the executors or other personal representatives.

173. The power of attorney also terminates if a sole attorney dies, resigns, or becomes incapacitated, and no alternative or substitute attorney is mentioned in the document. In some states, there is a rule stating that, if the attorney is the spouse or partner of the granter, the power is terminated if the couple gets separated or divorced, or the partnership is dissolved. A continuing power of attorney as regards economic and financial matters is terminated in the event of bankruptcy of the granter or a sole attorney. States may wish to specify what should happen in the event of the bankruptcy of one joint attorney, and following discharge from bankruptcy.

174. The attorney is free to resign at any time, including after the incapacity of the granter. If the attorney has not accepted the task in advance, he or she may also refuse to take it on. It goes without saying that the granter has to be dully informed of the intended refusal or resignation, if this is meaningful, and that the attorney should be required to give advance notice. In one state, the competent authority has to consent. If only one attorney is appointed in the continuing power of attorney and he or she resigns, then the power is terminated.

175. The consequence of the termination is that the competent authority, as stated in paragraph 2, should consider whether appropriate measures of protection are required. Appointment of a legal representative would in many cases constitute such a measure. Where there is a system for registering the termination of a continuing power of attorney, notification to the competent authority can be part of the registration procedure.

Part III - Advance directives

Principle 14 – Content

176. This principle contains examples of areas where advance directives may be of use. Health issues are mentioned first. In general, there is a need for careful regulation in this area. Directives may address welfare and other personal matters, such as the place of care and residence of the author. They may also address economic and financial matters. Another example concerns who should be guardian, if a decision about legal representation is to be made.

177. Such directives may or may not be addressed to particular persons such as representatives appointed by a competent authority, attorneys, medical staff or other persons who make decisions on behalf of or affecting the author during incapacity. They are always unilateral documents which do not establish a contract with any such person.

Principle 15 – Effect

178. As described in the definition in Principle 2, paragraph 3, there are two types of advance directives. Some are binding instructions. In others, wishes for the future are made. The question of the nature of the advance directives should, as mentioned in Principle 15, paragraph 1, be addressed in legislation as regards each individual type.

179. Issues may arise as to whether the advance directive was intended to address the situation which has in fact occurred. That is a question of interpretation of the document.

180. As described in paragraph 2, it is also important to regulate through legislation situations that arise in the event of a substantial change in circumstances. Examples might include cases where, since the advance directive was issued, a medical procedure prohibited by the advance directive has been much improved so that it is less hazardous, or less intrusive, or there has been a substantial change in family circumstances. This is especially necessary if the advance directive is binding. In this context, reference could usefully be made to the 1997 Oviedo Convention (cf. paragraph 21 above).

181. An advance directive may not be applicable in certain instances. There may be reasonable grounds for believing that circumstances have arisen which the author did not anticipate at the time when the advance directive was issued, and which would have affected the directive had they been anticipated.

Principle 16 – Form

182. As described above, advance directives may be made in writing or may be expressed orally to family members, medical staff or others. States should consider whether all or certain types of advance directives shall be made or recorded in writing if intended to have binding effect. In some national legislation, a written document is required in relation to more serious health issues.

183. It is important that the principle of self-determination is not impaired by doubts about validity of an advance directive. States should therefore, as stated in paragraph 2, consider what other provisions and mechanisms may be required to ensure the validity and effectiveness of those advance directives, mentioned in paragraph 1. If a directive is about health issues, in some states it is deemed advisable that the adult receives guidance from a lawyer, a notary or a medical doctor in order to ensure that the directive is clear and that the adult is aware of the consequences of the choice.

184. An advance directive is of no value if it is not known by or accessible to persons who need to make decisions on behalf of or in relation to the incapacitated adult. A general consideration is whether there should be an obligation to enter some, or all, advance directives into a public register, or whether this should be done on a voluntary basis. It might consequently be necessary to establish who should have access to such a register, especially bearing in mind data protection legislation.

Principle 17 – Revocation

185. It is well established that when persons express views, including strong ones, about a possible future situation, their views may change when they actually find themselves in that situation.

186. This principle states that it should be possible to revoke an advance directive at any time and without any formalities, even if the directive is binding. This can be done as long as the adult is still capable of making the decision on revocation. A capable person with severe physical disability may be able to revoke orally or by an unequivocal gesture only.

Appendix III

Draft recommendation on principles concerning missing persons and the presumption of death and its Explanatory memorandum

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 the member states, in particular by promoting the adoption of common rules in legal matters;

Noting that due to unprecedented mobility caused by the development of travel and prolongation of stays in foreign countries, as well the increased risk and occurrence of terrorist attacks and man-made or natural disasters, due among other things to climate change, there is a need to supplement and, where legislation already exists, to further harmonise the legislation in member states on the presumption of death of missing persons;

Noting that there continue to be other circumstances in which people go missing in the Council of Europe member states, such as armed conflicts and situations of generalised violence;

Having regard to the Final Declaration and Action Plan adopted at the Third Summit of Heads of State and Government of the Council of Europe (Warsaw, 16-17 May 2005), in particular concerning the need to continue to develop family law as a focus point of the Council of Europe;

Having regard to the United Nations International Covenant on Civil and Political Rights (1966);

Having regard to the United Nations Convention on the Rights of the Child (1989);

Having regard to the United Nations International Convention on the Protection of All Persons from Enforced Disappearance (2006);

Having regard to the importance that should be attached to the international obligations of member states concerning missing persons, in particular under international criminal and international humanitarian law;

Appreciating the work of the International Committee of the Red Cross (ICRC) in this area;

Taking into account the relevant case law of the European Court of Human Rights;

Building on the Council of Europe’s past experience in this field, namely Recommendation No. 646 (1971) of the Consultative Assembly of the Council of Europe on action to be taken in tracing missing persons and Recommendation No. R (79) 6 of the Committee of Ministers of the Council of Europe to member states concerning the search for missing persons;

Having regard to the Convention relating to the establishment of death in certain cases prepared by the International Commission on Civil Status (ICCS Convention No. 10) and signed in Athens on 14 September 1966, at present the only international legal instrument dealing with civil law aspects of the question of missing persons;

Noting that this convention deals only with cases where death can be regarded as certain, and consequently does not cover cases of missing persons whose death can be regarded as likely or as uncertain;

Acknowledging that legislation in this area has recently been adopted or proposed in some member states;

Considering nevertheless that a great number of member states remain devoid of legislation on this subject;

Recognising that there are considerable disparities between the legislation of member states, it being often unsuited to the situation of persons with a legitimate interest in the declaration of presumed death, by imposing numerous constraints upon them and consequently placing them in a vulnerable position before the declaration of presumed death has been made;

Considering the length of waiting periods before the certificate of presumed death can be issued;

Considering that the harmonisation of the rules and practices in force is therefore of great importance, from a legal point of view, to everyone concerned;

Taking into consideration that a fair balance must be struck between the interests of missing persons and of those with a legitimate interest, particularly as regards property and inheritance rights, pension and life insurance rights, the right to enter into a new union (remarriage, registered partnership or similar union existing in certain member states), legal affiliation and parental rights;

Considering that the introduction of the notion of disappearance and of presumption of death or, as the case may be, the improvement of the existing legislation on this topic would be of great benefit, in particular to family members who have a legitimate interest, as well as to the missing person, as it would clarify their respective legal position and status;

Recommends that governments of the member states take or reinforce all measures they consider necessary with a view to the implementation of the principles contained in the appendix to this recommendation.

Appendix to Recommendation CM/Rec(2009)..

Part I - Definition

In this recommendation, a “missing person” is a natural person whose existence has become uncertain, because he or she has disappeared without trace and there are no signs that he or she is alive.

Part II - Governing principles

Principle 1 − Cases where a declaration of presumed death in respect of a missing person may be issued

A declaration of presumed death of the missing person may be issued if, in the light of all the circumstances of his or her disappearance:

a. death can be taken as certain; or
b. it is reasonable to conclude that the death of the missing person is likely; or
c. although the missing person’s death is uncertain, his or her disappearance cannot be reasonably attributed to any cause other than death.

Principle 2 − Competent authority

An authority competent to issue a declaration of presumed death with regard to a missing person (“competent authority”) may be designated:

a. where the missing person was a national of the state to which the competent authority belongs, or was domiciled or had his or her habitual residence in its territory;
b. where the person concerned was reported missing in the territory of that state;
c. where the person concerned was reported missing during a voyage of a vessel or aircraft registered in that state.

Principle 3 – Requesting person, body or authority

A request for a declaration of presumed death may be lodged by any person or body demonstrating a legitimate interest or by an authority designated by the state for this purpose.

Principle 4 – Waiting period for lodging the request

1. Where, in the light of all the circumstances, the death of the missing person can be taken as certain, the lodging of the request mentioned under Principle 3 should preferably be possible without a waiting period.

2. Where the circumstances of disappearance of the missing person are such that it is reasonable to conclude that his or her death is likely, the time which must have elapsed from the disappearance, or from the receipt of the last news that the person was alive, for lodging the request should preferably be one year at the most.

3. Where the death of the missing person is uncertain, the time which must have elapsed from the disappearance, or from the receipt of the last news that the person was alive, for lodging the request should preferably be seven years at the most.

Principle 5 – Date and hour of presumed death

The date and, if possible, the hour of presumed death of the missing person should be determined by referring to any evidence or indication relating to the circumstances of the case.

Principle 6 − Effects

1. By operation of law, the declaration of presumed death should have all the legal effects of death.

2. Nevertheless, member states may make such exceptions to this provision as they consider strictly necessary. These exceptions should be limited but may cover matters such as marriage, registered partnerships, legal affiliation, property rights and inheritance rights and should aim at maintaining a fair balance between the interests of those concerned, including the person whose presumed death is declared.

Principle 7 – Return of the person whose presumed death has been declared

1. Should the person, in respect of whom the declaration of presumed death has been issued, return, or where there is information establishing that he or she is still alive, member states should prescribe measures aiming at annulling the decision declaring this person’s death.

2. A request for annulment of a declaration of presumed death may be lodged by the person whose presumed death has been declared or by any person or body demonstrating a legitimate interest, as well as by an authority designated by the state for this purpose.

3. Member states may make provision for the protection of persons who may be adversely affected by the annulment of the decision.

Principle 8 –Transcription of decisions

A decision declaring the presumed death of the missing person or a decision on annulment, referred to in Principles 2 and 7 respectively, should be transcribed in the relevant registers of the state where such a decision was pronounced.

Principle 9 – Procedural aspects

1. Access to proceedings and their duration should balance the concerns and needs of all those having a legitimate interest in the declaration of presumed death, as well as of the missing person. This should also apply to proceedings concerning annulment.

2. When publicity concerning the search for a missing person is deemed necessary during the course of proceedings regarding a declaration of presumed death, this should be carried out by any appropriate means, including new technologies, and taking into account the financial situation of the requesting person.

***

Explanatory memorandum

A. Relevance of the topic

1. The terrible tsunami disaster of Boxing Day 2004, the terrorist attacks of 11 September 2001, as well as armed conflicts, have made it clear that the legislation of Council of Europe member states deals with the subject of missing persons and the presumption of death in a wide variety of ways, which are often inadequate and unnecessarily onerous for the persons with a legitimate interest, in particular the husband or wife, the partner and the children of the missing person.

2. The recommendation defines the “missing persons” in Part I as those whose existence has become uncertain, and in respect of whom a declaration of presumed death may be made. The recommendation does not therefore deal with persons who just decided to leave their place of residence, even if for a considerable period of time.

3. There is a convention on the subject of missing persons and presumption of death, namely the Athens Convention of 14 September 1966, adopted by the International Commission on Civil Status (ICCS Convention No. 10, hereinafter “the Athens Convention”). This convention governs situations in which, in view of all the circumstances, the death of a missing person can be regarded as certain. In cases where the death of a missing person whose corpse cannot be located can be definitely inferred from the circumstances, this instrument provides an appropriate means of ensuring that the next-of-kin is issued with a document establishing the death without delay. Many member states of the Council of Europe which are not Parties to the Athens Convention are equipped with such a provision within their laws; however, waiting periods envisaged by legislation often serve no valuable purpose. There are also member states whose legislation does not include such a provision.

4. There are no international provisions on the civil law aspects of missing persons whose death cannot be considered as certain. Criteria governing cases in which a declaration of presumed death can be applied for, the length of waiting periods related to proceedings and the legal consequences of such declarations vary considerably from one state to another. Therefore, taking into account, among other things, the constant increase in travel and residence in foreign countries, as well as the genuine risk of the disasters and incidents described above and the disparities in the existing legislation between member states, it would be extremely useful to provide them with an international legal instrument allowing them to adapt or adopt legislation that deals adequately with the consequences of situations in which the death of a missing person cannot be regarded as certain.

5. An individual’s actual existence must be legally established before numerous legal consequences attached to his or her personality can come into play. This is the function of the birth certificate. The possibility to establish and prove a person’s death is equally important. This is often the only way to ensure the enforcement of the legal consequences of death. The death certificate serves this purpose by proving to all that the person in question died at the place, on the day and at the hour recorded in the certificate. Death is the precondition for the implementation of the law of succession, for the existence of an inheritance, a testator and an heir, and also for the payment of a survivor’s pension or an insurance policy. It also automatically terminates marriage (and also registered partnerships or similar unions in some member states), and the corresponding system of marital/partnership property, enabling the survivor to enter into a new relationship without any risk of bigamy. A major problem therefore arises if no evidence can be provided of death because the person is missing and therefore his or her existence has become uncertain.

6. The Athens Convention provides adequately for situations in which a missing person’s corpse cannot be found, but in which, all circumstances considered, his or her death can be regarded as certain. This does not mean that death is certain, although this certainty can now be provided by means of the identification techniques used in anthropology, dactylography, odontology, pathology, serology as well as DNA analysis. Thanks to advances in these fields, the numbers of missing persons following the tsunami disaster were reduced from an initial estimate of many dozens in the Netherlands and Belgium to zero in the former country and to one in the latter. This meant that the authorities were spared the trouble of issuing pointless declarations of presumed death, and finally only had to issue standard death certificates.

7. The Athens Convention does deal properly with such situations as the 1977 collision between two planes on the ground in Tenerife (Canary Islands), when nothing was left of the passengers and crew other than some charred remains, which meant that the techniques of the 1970s were powerless to identify the bodies. The Convention is also useful in cases like those of the many persons in the “Twin Towers” in New York City who were never found, but who were known to have been on the premises when the aeroplanes hit.

8. However, the Athens Convention does not apply solely to the cases of accidents and disasters mentioned above. For instance, the Court of Appeal of The Hague (The Netherlands) has applied this convention to the case of a passenger on board a ship out at sea who was seen shortly before his or her disappearance and who proves to have been suffering from psychological problems. The ship is thoroughly searched, in vain, and only the missing person’s bathrobe is found on a chair on deck. As the stretch of sea in question is shark-infested and the coastguard has failed to find a corpse, the Court concluded that the person went overboard and held his or her death as certain. Another example would be someone who cannot be reached because of the inaccessibility or other natural conditions of a given area (and who might well only be found millennia later, like Ötzi).

9. In cases where death can be taken as certain, there is no need for any waiting period before initiating a procedure with a view to obtaining the declaration of presumed death. In such cases, only a document which is fully equivalent to a death certificate is required. This latter requirement is also important because it exempts heirs from having to stand surety with a view to the return of assets or respecting other rules and regulations concerning disposal of assets in case the missing person reappears.

B. More suitable provisions are also required in other situations of missing persons

10. In practice, there are many more specific situations of disappearance, which all have the common denominator that the missing person’s death cannot be regarded as certain (i.e. those which do not fall within the “Athens criterion”). There may be situations where death is likely or the disappearance of the person can not be attributed to any reason other than his or her death: cases vary from persons just popping out for some cigarettes or the girl heading off to the disco and never coming back, the mountain hiker who suddenly gives his or her companions the slip despite the fair weather conditions, the person in an office building or a factory which is completely destroyed by an explosion or a terrorist attack, whereas it is uncertain whether the person actually went into the building (though he or she did have an appointment there) or whether he or she left it in time (cf. unavailability of an entry-exit registration systems in such cases), a person who dives into the water before his or her friends’ very eyes and never re-emerges, and a man or woman who, when a residential area is destroyed by an explosion, has made an identified phone call from a house in the area not a few minutes, but a whole hour previously. Or a person who has gone out of circulation, but was very probably in an area affected by the tsunami on Boxing Day 2004: no one can be sure because no one can confirm it, although there is reliable evidence that he or she did travel in that area at the time.

11. The preamble of this recommendation has already indicated that one of the situations where people may go missing is during armed conflict (either international or internal). These might be both civilians and military persons. Both categories are covered by this recommendation, although uniquely from a civil law perspective.

12. The recommendation therefore does not deal with the criminal law aspects of persons missing in armed conflicts, for instance accountability and/or impunity for the most flagrant crimes, including war crimes and crimes against humanity, such as forced disappearances. Similarly, the recommendation does not deal with search, tracing, medico-legal issues, compensation, etc. Such issues are dealt with by international criminal law and international humanitarian law, by international tribunals and international bodies, such as the International Committee of the Red Cross (ICRC), as well as by national legislation. The recommendation should therefore be regarded as complementary to those standards.

13. The recommendation aims at providing governments of member states with assistance in dealing with such cases of missing persons. Its principles could be of particular use in a post-conflict setting. However, its text is without prejudice to legal obligations of member states under international humanitarian law or international human rights law and should not be construed as a pretext for easily declaring someone as presumed dead. Consequently, the fact that the missing person has been declared as presumed dead is not in itself a justification for not continuing the search of the missing person or his/her remains.

14. It is clear that the situations of disappearance in which death cannot be regarded as certain vary widely, much more so than the specific categories of situation covered by the (often ad hoc) legislation of many countries. Appropriate provision is needed for all possible situations, striking an appropriate balance between the interests of the missing persons and their families. It is not enough for the missing person’s assets to be properly managed by an administrator or any other system of supervision: the next-of-kin needs to be sure of ongoing provisions in terms of individual, family and property rights.

15. It is not unusual for the declaration of presumed death substantiating the presumed death of the person in question to be reserved in legislation for situations in which a person has gone missing. The circumstances under which the said declaration can be requested are mostly confined to those defined specifically in the relevant legislation.

16. In much legislation, a waiting period must be observed before applying to the judicial or administrative authorities for the said declaration. This is justified particularly because there is always a risk of fraud (examples of people pocketing insurance payments or the case of moonlight flitting, sometimes leaving large debts behind). However, the length of these waiting periods may seem unjustified and unreasonable, and in general, with regard to the legitimate interests of the surviving next-of-kin, they may appear to be too long or else may fail to take full account of the actual situation. Furthermore, it is usually unnecessary for legislation to impose mandatory investigations prior to the issuing of the declaration, in situations where death is virtually certain or likely. Nor do the courts have to be empowered to postpone the issuing of the declaration of presumed death for years to come. It is striking that in some national legislation, the waiting time for the declaration of presumed death is linked to the missing person’s age, so that the latter must have reached a certain age in order for the declaration of presumed death to be issued at all. There is every reason for the new international legal instrument to cover not only adults, but also children.

17. The legal consequences of the declaration vary enormously. Marriage is not universally dissolved by the declaration of presumed death. According to some legislation, the surviving spouse must also initiate divorce proceedings before he or she can enter into a new union (marriage, registered partnership or similar union). It should also be noted that there are often very long guarantee periods as regards the restoration of assets in case the missing person reappears, and that the missing person’s spouse is often also required to stand surety for this potential restitution.

18. In general, this recommendation seeks to strengthen legal certainty for persons whose fate and whereabouts are unknown, as well as for the persons with a legitimate interest.

19. It is, however, without prejudice to the concept of absence which appears in the legislation of several member states.

C. Towards further European harmonisation

20. The Athens Convention is available for cases of missing persons whose corpses cannot be found, but whose death can be regarded as certain. All other conceivable situations of disappearance where death cannot be regarded as certain vary so widely that a simpler, broader approach, leaving more leeway for the judge’s or administrative authorities’ appraisal of the individual case, would seem necessary. In practical terms, the following are the main categories of situations of missing persons, the second and third categories being in need of a solution:

a. where death can be regarded as certain (Athens Convention);
b. where it is reasonable to conclude that death is likely;
c. where, although death is uncertain, the fact that the person concerned is missing cannot reasonably be attributed to any cause other than his or her death.

21. As far as situations other than those where “death can be taken as certain” are concerned, states should adopt legal provisions that cover property and inheritance rights in addition to family law considerations. Where assets are concerned, there should be provisions enabling them to be returned if the person in question comes back, without unnecessary long periods for which the persons with a legitimate interest are required to stand surety.

22. The present recommendation provides guidance to states in all three situations, where “death can be taken as certain”, as well as where “it is reasonable to conclude that the death of the missing person is likely” and where, “although the death of the missing person is uncertain, the disappearance of the person concerned cannot be reasonably attributed to any cause other than his or her death”. By doing so, the recommendation seeks to be complementary to the Athens Convention.

23. The present recommendation does not preclude states from applying provisions that make it easier to issue a declaration of presumed death. In this respect particular attention should be paid to paragraph 13 above.

24. Nevertheless, states should bear in mind the need for appropriate measures to be considered for the protection of those concerned, including the person presumed dead, those family members who have a legitimate interest or any other person affected by the effects of the decision.

Comments on the principles

Part I. Definition

25. Part I of the recommendation contains the definition of a missing person, as understood in the context of the recommendation.

26. A definition of “missing person” for the purpose of this recommendation has been included as there are many different situations in which persons go missing. The recommendation does not deal with persons who have decided just to leave their place of habitual residence, be it for a considerable period of time, or, for example, patients who did not re-enter the psychiatric hospital where they were long-term residents. It should be emphasised that many people go missing, but only some of them do not, at any moment, come back. The recommendation therefore deals with persons in respect of whom a declaration of presumed death can be made because there are no signs that they are still alive. The definition refers to natural persons, adults but also children, since they can also be missing persons (cf. paragraph 16 above).

Part II. Governing principles

Principle 1 − Cases where a declaration of presumed death in respect of a missing person may be issued

27. The circumstances in which a person’s continued existence has become uncertain, and which could be construed as signifying disappearance, vary greatly in practice. Sometimes little more information is available other than the fact that the person concerned has gone missing and no further news of him or her has been received, whether directly or through other persons or sources.

28. Legal presumption of death should not, therefore, be restricted to cases of natural and man-made disasters, terrorism, armed conflicts, or any other circumstances that would imperil the life of the missing person (and where the death of the missing person, if it is not already taken as certain, can be regarded as likely). Such a presumption should also cover situations in which, although his or her death is uncertain, the fact that the person concerned is still missing, after a certain period of time has elapsed, cannot be reasonably attributed to any other cause than his or her death.

29. Where a state comprises several territorial units, each of which has its own legislation, different arrangements may be made in respect of presumptions of death and their operation in each territorial unit.

Principle 2 − Competent authority

30. The competent authority might in some states be a judicial body, and in others, an administrative body.

31. Competence to decide on the declaration of legal presumption of death in respect of persons who are not nationals of the state, but who are domiciled or have their habitual residence in its territory, is patent and already embodied in the legislation (under private international law) of many states. The provision under b covers persons reported missing while on holiday or those persons who are, for other reasons, staying in another state than that of which they are a national or where they have their habitual residence. The text of Principle 2 derives from Article 1 of the Athens Convention relating to the establishment of death in certain cases.

Principle 3 − Requesting person, body or authority

32. As a rule, under the legislation of many countries, the request for a declaration of presumed death may be lodged by persons demonstrating a legitimate interest. This may be an interest in the sphere of family law, that is an interest of persons closely connected with the missing person, such as the spouse or registered partner, but also that of persons with an inheritance-related interest (who are not necessarily family members), or another financial interest in the declaration of presumed death, such as creditors, the employer or employees of the missing person.

33. The request for a declaration of presumed death may also be made by an authority designated by the state for this purpose. As a rule, such competence is attributed to the public prosecutor. The competence of the authority designated by the state is founded, and already established in member states on the fact that the remaining family members are not always emotionally capable of lodging the request themselves, as they would be compelled to acknowledge that a person very dear to them is declared dead.

34. Principle 3 does not prevent the competent authorities of member states from taking decisions by right of office, i.e. without a formal request for a declaration of presumed death being made.

35. Given that any person demonstrating a legitimate interest may make a request for the declaration of presumed death, it is important that family members and others who have close personal links with the missing person are not left unaware of any proceedings underway and that they can be involved.

Principle 4 − Waiting period for lodging the request

36. In line with Article 1 of the Athens Convention, paragraph 1 states that where, in the light of all the circumstances, the death of the missing person can be taken as certain, there should preferably be no waiting period before a request for a declaration of presumed death is made.

37. According to the second paragraph, the waiting period to be applied by states should preferably be reduced to one year or less where the missing person’s death cannot be taken as certain, but can reasonably be considered to be likely in the circumstances of the case. This shorter time is in accordance with the legitimate interests of “the beneficiaries”, who are required to state the facts and circumstances establishing the probability of the missing person’s death. Situations of disappearance such as sea, air, man-made or natural disasters and, situations of armed conflict and generalised violence, may, if not already belonging to the category of “certain”, as a rule, be deemed to belong to the category indicated in the second paragraph. While in these cases death is not certain, it may justifiably be considered likely. For examples of situations where death can be considered as likely, reference should be made to paragraph 10 above.

38. The third paragraph lays down a maximum waiting period which states should preferably apply in all cases involving a person’s disappearance where there is no certainty as to that person’s death, but where the fact that the person is missing cannot be reasonably attributed to any other cause than his or her death. The suggested maximum waiting period of seven years constitutes an attempt to determine a period of elapsed time that should reasonably be acceptable for all member states.

39. Leaving the waiting period to be determined by the competent authority in the absence of a maximum waiting period fixed by the legislator is not the best solution for “the beneficiaries”: this would still have the consequence of imposing an unnecessary uncertainty upon such persons.

Principle 5 − Date and hour of presumed death

40. Similarly to Article 3 of the Athens Convention, the competent authority should determine the date (i.e. the day) and, if possible, the hour of presumed death by referring to any evidence or indication as to the circumstances or time of death. In doing so, member states and the designated competent authorities should refrain from imposing mandatory investigations, in particular in situations where death is to be regarded as certain or likely. In situations where death is uncertain, it is sufficient for those who made the request for the declaration of presumed death to prove that there is no reasonable explanation for the fact that the person concerned is missing other than his or her death.

41. The date and, if possible, the hour of presumed death is transcribed in the registers mentioned in Principle 8 below. The provision of Principle 5 forms a minimum requirement; it does not exclude other data to be determined by the competent authority (and subsequently to be transcribed according to Principle 8).

Principle 6 − Effects

42. The provision in paragraph 1 refers mainly, though not exclusively, to civil law and/or family law. It covers all three cases where a declaration of presumed death in respect of a missing person may be made, as mentioned in Principle 1.

43. In most member states the declaration of presumed death has similar legal effects to those of death on marriage or, where it exists, on registered partnership or similar union. The termination of marriage/partnership also enables the survivor to enter into a new relationship without any risk of bigamy. In the same way, it leads to the opening of the succession, the payment of a survivor’s pension or an insurance policy and the termination of the corresponding system of marital/partnership property.

44. Paragraph 2 provides member states the possibility of making exceptions to the above principles. However the present recommendation limits these exceptions, on one hand, to cases where death is likely or uncertain and, on the other hand, to the four following themes: marriage, registered partnership or similar union, legal affiliation, property rights and inheritance rights. It ensures that these exceptions maintain a fair balance between the interests at hand. By way of example, member states could decide that the bond of the person in respect of whom the presumed death has been declared ends upon remarriage of the surviving spouse and not on the day on which the declaration of presumed death is made. It is plain, in this case, that for the purpose of determining the status of children born after the disappearance, there should be special regulations ensuring the best interests of the child.

45. This recommendation does not prevent states from prescribing measures to facilitate the restoration of the missing person’s assets (and, where applicable, of whatever has replaced those assets, or its yield) in anticipation of his or her possible return. The measures should be adapted to the category of cases as defined in Principle 1.

Principle 7 − Return of the person whose presumed death has been declared

46. In case of annulment of the declaration of presumed death, member states should ensure that its effects are regulated. For example, should the person return, member states are free to prescribe measures for ensuring the restoration of assets to the person in respect of whom the presumed death has been declared, taking into account the circumstances of the person’s disappearance in order to strike a fair balance between the interests of all persons concerned.

47. Member states are also free to prescribe measures for the protection of persons who may be adversely affected by the annulment of the decision. An example of this could be a situation where the spouse of the person who has been declared presumed dead has remarried.

48. Where parental authority is not reactivated ipso jure on the missing person’s return, there should be a possibility of bringing about its reactivation taking into consideration in particular the best interests of the child.

Principle 8 − Transcription of decisions

49. The text is taken from Article 4 of the Athens Convention. Transcription takes place in the relevant registers of the state where the decision of presumed death was pronounced. As a rule, the transcription will be made in the civil status registers. This principle takes into account that transcription in other registers such a civil population registers is also possible. Transcription aims at establishing legal certainty and at facilitating the proof of the presumed death or of the decision of its annulment.

50. Furthermore, in practice, there is the possibility that the decision on the declaration of presumed death and the decision on its annulment are made in different states. It would therefore be in the interests of all parties concerned, as well as legal certainty, that the decision of annulment be sent to the state in which the death had been declared in order to be transcribed.

51. This recommendation does not aim to settle questions of conflict of laws and transfrontier recognition of decisions taken. These matters are covered by the private international law of member states or international instruments.

Principle 9 − Procedural aspects

52. Although proceedings should be carried out expeditiously, they should also be thorough and should, in any case, take into account the concerns and needs of those having a legitimate interest in the declaration of presumed death, as well as the interests of the missing person. This also applies to proceedings concerning annulment.

53. Publicity will normally be needed, notably in situations where death is uncertain. When publicity concerning the search for a missing person is deemed necessary, it should be carried out by any appropriate means. The competent authority should therefore in particular make use of new technologies such as the internet, and not automatically use the written press for publicity, particularly in view of the fact that such publicity is normally rather expensive.

Appendix IV

Draft recommendation on the nationality of children and its Explanatory memorandum

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;

Reaffirming its keen interest in issues of nationality and their adequate solution in member states;

Stressing the key activities of the Council of Europe in the field of nationality law, including activities for avoiding and reducing statelessness, and its competence in these matters;

Recalling the 1948 Universal Declaration of Human Rights according to which every individual has the right to a nationality, and emphasising the importance of an effective nationality for the individual’s protection and for the exercise of his or her personal rights and freedoms;

Recalling also the 1989 United Nations Convention on the Rights of the Child according to which children have the right to acquire a nationality, which is a firm element of their identity;

Welcoming the amendments which member states have made to their laws on nationality in recent years, in particular those aimed at reducing statelessness and those granting children better access to the nationality of their parents and of their state of birth and residence;

Noting that children of parents of foreign origin born or growing up in their state of residence are in the particular situation of becoming increasingly familiar with the language(s), habits, customs and culture(s) of their state of residence, which contributes to their integration into that society;

Noting that foreign children adopted by nationals are in a particular situation leading to their integration into the culture of the country of their adoptive parents;

Recalling its Recommendation No. R (99) 18 on the avoidance and reduction of statelessness;

Taking account of the work carried out in the area of nationality by the United Nations and other international institutions;

Having regard to the other relevant international instruments, in particular the 1930 Hague Convention on Certain Questions relating to Conflict of Nationality Laws and its Protocol on Statelessness; the 1954 United Nations Convention Relating to the Status of Stateless Persons; the 1961 United Nations Convention on the Reduction of Statelessness; the 1966 International Covenant on Civil and Political Rights; the 1965 International Convention on the Elimination of All Forms of Racial Discrimination; the 1973 Convention to reduce the Number of Cases of Statelessness of the International Commission on Civil Status; the 1979 United Nations Convention on the Elimination of All Forms of Discrimination against Women and the 1990 United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families;

Taking into account in particular the importance of the principles and rules of the 1997 European Convention on Nationality (ETS No. 166), the 2006 Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession (CETS No. 200) and the 2008 European Convention on the Adoption of Children (revised) (CETS No. 202);

Expressing the hope that all member states will sign, ratify and fully implement these conventions as soon as possible;

Realising the need for further measures, at national and international levels, in order to avoid and reduce cases of statelessness, in particular of children, and to improve the access of children to the nationality of their parents and of their state of birth and residence;

Recalling the usefulness of co-operation and, where appropriate, the obligation to exchange information on the nationality of children among member states in order to ensure that a child has access to a nationality;

Emphasising the definition of child as a person below the age of 18 years unless, under the law applicable to the child, majority is attained earlier;

Taking into account the importance of birth registration to ensure the right to a nationality and avoid statelessness,

Recommends that governments of the member states be guided in their legislation, policies and practice by the principles contained in the appendix to this recommendation.

Appendix to Recommendation CM/Rec(2009)....

Principles concerning the nationality of children

With a view to reducing statelessness of children, facilitating their access to a nationality and ensuring their right to a nationality, member states should:

I. Reducing statelessness of children

1. provide for the acquisition of nationality by right of blood (jure sanguinis) by children without any restriction which would result in statelessness;

2. provide that children born on their territory who otherwise would be stateless acquire their nationality subject to no other condition than the lawful and habitual residence of a parent;

3. provide that children on their territory who are stateless despite the provisions contained in principles 1 and 2 above, and who have the right to acquire the nationality of another state, be provided with any necessary assistance to exercise that right;

4. provide that children who, at birth, have the right to acquire the nationality of another state, but who could not reasonably be expected to acquire that nationality, are not excluded from the scope of principles 1 and 2 above;

5. provide that stateless children have the right to apply for their nationality after lawful and habitual residence on their territory for a period not exceeding five years immediately preceding the lodging of the application;

6. co-operate closely on issues of statelessness of children, including exchanging information on nationality legislation and public policies, as well as on nationality details in individual cases, subject to applicable laws on personal data protection;

7. treat children who are factually (de facto) stateless, as far as possible, as legally stateless (de jure) with respect to the acquisition of nationality;

8. register children as being of unknown or undetermined nationality, or classify children’s nationality as being ”under investigation” only for as short a period as possible;

9. treat children found abandoned on their territory with no known parentage, as far as possible, as foundlings with respect to the acquisition of nationality;

10. provide that the revocation or annulment of an adoption will not cause the loss of the nationality acquired by this adoption, if statelessness would be the consequence;

II. Nationality as a consequence of a child-parent family relationship

11. provide that children whose parentage is established by recognition, by court order or similar procedures acquire the nationality of the parent concerned, subject only to a procedure determined by their internal law;

12. apply to children their provisions on acquisition of nationality by right of blood if, as a result of a birth conceived through medically assisted reproductive techniques, a child-parent family relationship is established or recognised by law;

13. subject the granting of their nationality to children adopted by a national to no other exceptions than those generally applicable to the acquisition of their nationality by right of blood, if as a consequence of the adoption the family relationship between the child and the parent(s) of origin is completely replaced by the family relationship between the child and the adopter(s);

14. facilitate the acquisition of their nationality by children adopted by a national in the case of an adoption in which the family relationship between the child and the parent(s) of origin is not completely replaced by the family relationship between the child and the adopter(s);

15. provide that revocation or annulment of an adoption will not cause the permanent loss of the nationality acquired by the adoption, if the child is lawfully and habitually resident on their territory for a period of more than five years;

16. provide that foreign children lawfully residing on their territory with a view to adoption have the right to file applications for the acquisition of their nationality if the adoption is not finalised. States should not in this case require a period of more than five years of habitual residence on their territory;

III. Children born on the territory of a state to a foreign parent

17. facilitate the acquisition of nationality, before the age of majority, by children born on their territory to a foreign parent lawfully and habitually residing there. Enhanced facilitation should be offered in cases where that parent is also born on their territory;

IV. Position of children treated as nationals

18. provide that children who were treated in good faith as their nationals for a specific period of time should not be declared as not having acquired their nationality;

V. Rights of children in proceedings affecting their nationality

19. ensure that, as far as possible, in proceedings affecting their nationality, children are consulted and their views and wishes are taken into account, having regard to their degree of maturity. Applications for nationality made on behalf of children should include the opinion of children considered by law as having sufficient understanding. A child should be considered as having sufficient understanding upon attaining an age, prescribed by law, which should not be more than 14 years;

20. give children the right to file applications for the acquisition or loss of nationality if they are considered by law as having sufficient understanding and are, where necessary, legally represented as required by domestic law;

21. grant children, where necessary, legally represented as required by domestic law, the right to challenge decisions regarding their nationality;

22. provide that children who have lost their nationality have the right to apply for recovery of it before the age of majority, or within at least three years after reaching the age of majority, and that they shall be, where necessary, legally represented as required by domestic law;

VI. Registration of birth

23. register the birth of all children born on their territory, even if they are born to a foreign parent with an irregular immigration status or if the parents are unknown, in order to safeguard their right to a nationality. The registration of birth should be free of charge and be performed without delay, even if the period within which the birth should have been declared has already expired.

Explanatory Memorandum

Introduction

1. The 1997 European Convention on Nationality (ETS No. 166, hereinafter the ECN) was the first international legal instrument to develop important standards on general principles of nationality law as well as on the acquisition of nationality. In addition, an exhaustive list of acceptable grounds for loss of nationality was set out alongside principles regarding procedural issues with respect to nationality. Moreover the CEN includes provisions on multiple nationality in general, on military obligations in case of multiple nationality, on nationality issues related to state succession and on co-operation between states in nationality matters. The increasing number of member states having ratified this important Convention is to be welcomed and member states not having yet done so are invited to accede to the ECN in the near future.

2. Nevertheless, several rules of the ECN need further development and to this end, the principles of the ECN regarding state succession and nationality were built upon in 2006 within a new international convention: the Convention on the Avoidance of Statelessness in Relation to State Succession (CETS No. 200).

3. High priority has been given to continuing to reduce the number of cases of statelessness, on the one hand, and, on the other hand, developing more precise and detailed rules on the position of children in nationality law. The present recommendation thus develops principles aiming at the reduction of statelessness of children and formulates others, aimed at improving the access of children to the nationality of their parents and their country of birth and residence.

I. Reducing statelessness of children

Principle 1

4. The acquisition of a nationality by right of blood is prescribed by Article 6 of the ECN. Acquisition of a nationality by right of blood is hereafter called: acquisition jure sanguinis, and includes jure sanguinis a matre - by descent from the mother - as well as a patre - from the father -. According to paragraph 1 of Article 6 of the CEN, each State Party shall provide in its internal law for its nationality to be acquired automatically (ex lege) by a child, one of whose parents possesses at the time of the child’s birth the nationality of that State Party. However, states are allowed to make exceptions for children born abroad and to provide for special procedural rules for the acquisition of nationality jure sanguinis for children whose parenthood is either established by recognition, by court order or by similar procedures.

Children born abroad

5. Several member states of the Council of Europe use the possibility to make an exception to the principle of the acquisition of their nationality jure sanguinis for children of nationals who were born abroad. The reason for this is the presumption that the child born abroad is unlikely to develop ties with the state of the nationality of the parent, which are strong enough to justify the possession of that nationality. This exception reflects that a nationality should be a manifestation of a genuine and effective connection between a person and the state concerned. Nevertheless, with regard to children born abroad such an exception should never lead to situations of statelessness. In all cases where a legal child-parent family relationship exists, jus sanguinis provisions should be applied, if otherwise the child would be stateless. If the child born abroad otherwise would be stateless, the acquisition of the nationality of the parent jure sanguinis should take place by operation of the law without any necessity of registration. This is already underlined in Recommendation No. R (99) 18 on the avoidance and the reduction of statelessness in rule II.A.a., and is repeated in this recommendation. Principle 1 only applies in cases where a parent already is a national of the state concerned and therefore not if the parent only has the right to register as a national, but has not yet used this right.

Children born to parents of different nationalities

6. In the vast majority of member states of the Council of Europe children acquire the nationality of a parent jure sanguinis if one parent possesses this nationality, independent of whether the child was born in the state involved. However, some states provide that children born to parents of different nationalities do not always acquire the nationality of a parent jure sanguinis. These states require, for example, the parents to lodge a declaration wherein the nationality of the child is chosen from one of their nationalities. States opt for this approach in order to avoid multiple nationality. However, this approach can lead to difficulties if both states involved oblige the parents to make a choice between their nationalities and no such declaration is made, for example because of the inability of the parents to reach an agreement on this issue. The above-mentioned limitation of the acquisition of the nationality jure sanguinis should never lead to statelessness. It should be borne in mind that the reduction of cases of multiple nationality is less important than the avoidance of statelessness. Consequently, if both states involved require a declaration from the parent, the child should acquire both nationalities ex lege in order to conform with the right of the child to a nationality.

Children whose parenthood is established by recognition, court order or similar procedures

7. The clear majority of member states of the Council of Europe provide for the acquisition of nationality jure sanguinis independently from the way in which the family relationship between child and parent is established. A child whose parenthood is established either by recognition, by establishment of parenthood or by similar procedures is treated in the same way as a child whose parenthood is, for instance, based on the presumption that the husband of the mother is the father of the child (pater est quem matrimonium demonstrat).

8. However, a considerable number of states do not provide in all cases for an ex lege acquisition of nationality by a child whose parenthood is established by recognition, court order or similar procedures. In most of these countries the nationality can be acquired via a special procedure. Nevertheless, no procedural restriction on the acquisition of nationality jure sanguinis by recognised children should apply if this would result in statelessness. If the child would otherwise be stateless, the nationality of the parent has to be acquired ex lege without any procedure or requirement of registration. The same statelessness avoiding rule should apply if the parenthood has been established by court order or similar procedures.

9. The rule contained in principle 1 has priority over a default rule based on birth on the territory (jure soli), which would only apply if the child would otherwise be stateless (see principle 2). A state has a responsibility towards its nationals as to the nationality status of their children in respect to avoidance of statelessness. The responsibility which the state concerned has in regard of the parent national of that state, must also have consequences for the nationality status of the children of that national, if statelessness would otherwise be the result. This responsibility is stronger than the obligation of a state to grant nationality to children born on its territory in order to avoid the statelessness of those children. However, this principle does not have priority over a general jus soli rule, a double jus soli principle or a general jus soli approach in which the residence of a parent in the state is a condition.

Principle 2

Avoiding statelessness of children at birth

10. According to the ECN, states are obliged to grant their nationality to children born on their territory who would otherwise be stateless, either ex lege at birth or subsequently, to children who remained stateless upon application. The grant of nationality by application may be made subject to the requirement for a child to have lawful and habitual residence in the state for a period not exceeding five years immediately preceding the lodging of the application (Article 6, paragraph 2 of the ECN). The desirability of avoiding statelessness of children is also a major concern of Recommendation No. R (99) 18, which indicates (under point II.A.b.) that each state should provide in its legislation for the acquisition of its nationality by children born on its territory, who would otherwise be stateless. A clear majority of member states of the Council of Europe simply grant nationality in order to protect children born on their territory, thereby countervailing the danger of statelessness: they grant their nationality to otherwise stateless children with no other condition than birth on their territory, or with the only additional condition that the parents have lawful and habitual residence in the state at the time of birth of the child. Most other states provide for a right of registration as a national or acquisition of nationality via lodging a declaration of option after a certain period of lawful and habitual residence. However, it is evident that the above-mentioned regulation of Article 6, paragraph 2 of the ECN allows that a child born on the territory remains stateless for a maximum period of five years. It is therefore necessary to develop additional rules.

11. Statelessness up to the age of five years for children born on the territory of a state where their parents have lived should not be allowed. This statelessness is particularly striking because states have the possibility to provide for the loss of their nationality acquired by birth on the territory (jure soli) in order to avoid statelessness if it is discovered that the child acquired another nationality (see Article 7, paragraph 1 (f) of the ECN). It is therefore preferable to provide for children born on the territory of a state, who otherwise would be stateless, to acquire the nationality of that state. Ideally, the acquisition of nationality should occur at birth or shortly after birth with retroactivity. However the principle allows for the acquisition of nationality without retroactive effect. In that latter case, it should be ensured that the child concerned enjoys the same rights as children born as nationals. A decision on such an application should be given as soon as possible in order to terminate the statelessness of the child ( see principle 8).

12. In order to avoid the situation where the mere accidental birth on the territory also would give the right to acquire the nationality of the state of birth and to avoid abuses, a state may make the acquisition of its nationality by potentially stateless children conditional on the lawful and habitual residence of a parent on its territory. States which do so, will – in order to meet the standards of Article 6, paragraph 2 of the ECN - also have to provide for the grant of nationality by application for those children who do not acquire the nationality of the country of birth, due to the fact that their parent did not reside lawfully and habitually in that country.

It should be noted that the interpretation of the “lawful residence” as mentioned in this Principle is in the United-Kingdom referring to the concept of being “settled” as used in the British Nationality Act.

Principle 3

Assistance

13. In cases where it can be expected that the child should exercise his or her right to acquire the nationality of a parent either by registration or by using of a right of option, states should provide the child with any necessary assistance to exercise their right to acquire the nationality involved. This obligation can be exercised by agencies, under the final responsibility of the state. It may, for instance, be necessary to appoint a special guardian ad litem, who represents the child for nationality procedure purposes and who can inter alia apply for registration on behalf of the child or lodge a declaration of option as representative of the child. Furthermore, in some cases it may be necessary to present an official document confirming that the person involved did not acquire the nationality of the country of birth.

Principle 4

Children who cannot reasonably be expected to exercise their right of option

14. Article 1 of the United Nations Convention on the Status of Stateless Persons (1954) defines a stateless person as a person ‘who is not considered as a national by any State under the operation of its law.’ This definition of a legally (de jure) stateless person is frequently followed in domestic nationality laws. According to this definition a person not considered as a national by any state under the operation of its law is stateless even if he or she could acquire the nationality of a state by simple registration. For example, several states provide that the child of a national born abroad does not acquire the nationality of the parent jure sanguinis by operation of the law, but only after registration of that child in, for example, the registers of the competent consulate of the state involved, without any discretion of the authorities of that state. If a parent does not register such a child, the nationality will not be acquired. The consequence is that the child will be stateless if he or she does not acquire the nationality of the other parent or of the state of birth. If the state of birth provides for the acquisition of nationality at birth jure soli for children who otherwise would be stateless, the question has to be asked, whether under Article 6, paragraph 2 (a) of the ECN the child will ex lege acquire the nationality of that state. A similar question arises if the state of birth of a stateless child provides for a right to opt for its nationality under Article 6, paragraph 2 (b) of the ECN only after a certain period of residence subsequent to birth: may the parent claim that right for the child?

15. In order to avoid the acquisition of nationality jure soli or any other preferential access to the nationality of their state of birth by children who could easily acquire the nationality of one of their parents, some states restrict their rules for avoiding statelessness to children of stateless persons or by expressly excluding children who could acquire the nationality of a parent by registration. This is in line with the object and purpose of rules for avoiding statelessness in international instruments, like the 1961 United Nations Convention on the reduction of Statelessness and the ECN. The rules of these conventions can clearly not lead to an obligation for the contracting states to grant their nationality to a person who decided for strict personal convenience not to exercise a right to acquire the nationality of another state. It may be expected from children and their legal representatives that they use, as far as possible, all means to acquire a nationality by declaration of option or registration.

16. However, where serious obstacles prevent a person from exercising such a right, it is not correct to speak of a relevant omission to exercise that right. For instance, in cases where a parent whose nationality could be acquired by registration only by this parent has disappeared or is, for any other serious reason, in no position to register, it would not be reasonable to exclude a child from the benefits of the rules formulated in principles 1 and 2. Moreover, under certain circumstances a parent may have good reasons that his or her child will not be registered (not even through a representative) as a national of this parent’s state of origin. This is e.g. the case if the parent left that state as a refugee. Consequently, in those cases the child should be able to enjoy the advantages of principles 1 and 2.

Principle 5

Facilitation of naturalisation of stateless children

17. Despite rules aimed at avoiding statelessness, some children do not possess any nationality. This happens in cases where, for instance, a condition for the application of those rules was not fulfilled or where a child was born stateless abroad. The ECN contains no provision on the individual naturalisation of children. Thus, states are free to determine that only persons having reached the age of majority can apply for naturalisation. Many member states of the Council of Europe do not permit children to acquire their nationality individually. Consequently, children, who either were already stateless at birth and did not acquire the nationality of the state of birth or children who became stateless after birth, often have to wait until reaching the age of majority before they can apply for naturalisation in the state of residence. Such a long period of statelessness is contrary to the best interests of the children concerned. Stateless children should be able to apply individually for naturalisation – in principle represented by their legal representative - before reaching the age of majority. Furthermore, preferential treatment of these children in regard to the conditions of naturalisation is appropriate. The situation of these children differs from that of other children of foreign origin because of their increasing familiarity with the language(s), habits, customs and culture of their state of residence, and, to that extent they are already, or will become, integrated into society. Moreover, states have a strong obligation to remedy the statelessness of such children. Consequently, their naturalisation should be possible after a period of habitual residence, which is not too long, determined by principle 5 as a period not exceeding five years. This principle is also in accordance with Article 32 of the 1954 UN Convention on the Status of Stateless Persons, which prescribes the facilitation of the naturalisation of stateless persons, in particular by expediting naturalisation procedures.

Principle 6

Co-operation

18. In nationality law co-operation between states is very important. This is already underlined in Article 23 of the ECN in respect to information on national legislation on nationality law and general developments in this field. But not only is the exchange of information on legislation of importance, but also the exchange of information on concrete cases if one wants to avoid statelessness effectively. In order to render principles 1 and 2 operational, it is often necessary that detailed and concrete information be exchanged, in particular on the acquisition or non-acquisition of a certain foreign nationality. Not providing the relevant information in such a case could cause de jure or de facto statelessness of the child. The balance between the need to access to a nationality for the child concerned and the protection of his or her personal data according to national and international laws should follow the best interests of the child.

Principle 7

De facto statelessness

19. The application of any rules avoiding statelessness depends on the definition of statelessness itself. As already mentioned above a person is regarded to be legally (de jure) stateless, ‘who is not considered as a national by any State under the operation of its law.’ In addition to cases of de jure statelessness, states also may be confronted with cases where persons do possess a certain nationality, but where either the state involved refuses to give the rights related to it, or the persons involved cannot be reasonably asked to make use of that nationality. In both cases the persons involved do not benefit of an effective nationality and are in fact stateless.

20. According to Resolution I, accepted by the General Assembly of the United Nations on 30 August 1961 at the occasion of the Final Act of the 1961 Statelessness Convention, persons, who are stateless de facto, should as far as possible be treated as stateless de jure to enable them to acquire an effective nationality. This is repeated in this principle.

21. Factual or ‘de facto’ statelessness implies that a person theoretically possesses a certain nationality, but no relevant tie exists (anymore) between the person and the state concerned and consequently the person involved will not enjoy the protection of this state. De facto statelessness is closely related to the definition of statelessness and to proof of statelessness. E.g., a person could be considered as de facto stateless if he or she possesses solely the nationality of the state, which he or she has left as a refugee, while he or she is recognised by his or her country of habitual residence as a de jure refugee. The state of habitual residence should apply its rules on avoiding statelessness on the children born to such persons, in particular principles 1 and 2. That could also happen if a state continues to hesitate about whether a child is de jure or de facto stateless. However, it has to be underlined, that it is up to the states to determine what de facto statelessness is and thus which persons are to be covered by this principle.

Principle 8

Unknown or undetermined nationality

22. A case on the borderline of de jure and de facto statelessness exists if authorities register a person as being of unknown or undetermined nationality or classify the nationality of a person as being ‘under investigation’. Such classification is only reasonable as a transitory measure during a brief period of time. This is in line with the spirit, for example, of Article 8 of the Convention on the avoidance of statelessness in relation to state succession, requesting states to lower the burden of proof. It urges states to implement their obligations under international law by not indefinitely leaving the nationality status of an individual as undetermined.

Principle 9

Children found abandoned

23. Article 6, paragraph 1 (b) of the ECN prescribes the obligation of a state to grant nationality to a foundling found on its territory if he or she would otherwise be stateless. The wording ‘foundling(s) found in its territory’ is taken from Article 2 of the 1961 United Nations Convention on the Reduction of Statelessness. If at any date still during his or her minority, the child’s parents are discovered, and the child is deemed to have the nationality of e.g. (one of) these parents or has acquired the nationality of the place of his or her birth, the nationality acquired as a foundling may be lost. This is allowed by Article 7, paragraph 1 (f) of the ECN. The nationality legislation of many member states of the Council of Europe is in conformity with Article 6, paragraph 1 (b) of the ECN. However, in a number of countries a foundling also loses his or her nationality if his or her descent is discovered after majority. Such loss is contrary to the provisions of the ECN.

24. National regulations differ considerably on the scope of application of their provisions on foundlings. In some member states these provisions can be applied on all children below 18 years found abandoned with no known parentage. In some other member states the corresponding provisions only apply on new born babies found abandoned. This last mentioned restrictive interpretation is in line with the obligation of Article 6, paragraph 1 (b) of the ECN (see the explanatory report on that provision). However, this restriction leaves a gap with regard to the avoidance of statelessness of children found abandoned with no known parentage if it is obvious that the child concerned is not a new born baby, although they are in a similar situation as abandoned new born babies. Therefore, principle 9 underpins that these children should be treated, as far as possible, as foundlings.

25. It is up to member states to determine which children qualify as being in a similar situation as foundlings. Of course, a state could decide to extend the treatment of foundlings to all minors found abandoned on their territory with no known parentage, as some member states do. However, a state also could determine an age limit and e.g. provide that children found abandoned on their territory with no known parentage are treated similar as foundlings, if they obviously did not yet reach the age of three years.

Principle 10

Revocation or annulment of adoption

26. In some countries, a revocation or annulment of an adoption has an ex tunc (retroactive) effect. Consequently, a loss of nationality will – in principle – be covered by Article 7, paragraph 1 (f) of the ECN: loss of nationality may be the consequence of such revocation or annulment, but no statelessness may be caused. The situation is different in the case of a revocation or annulment of the adoption without retroactivity (ex nunc). Due to the fact that no retroactive effect exists, loss of nationality is not accepted under Article 7 of the ECN. Principle 10 repeats a principle already enshrined in Article 7, paragraph 1 (f) of the ECN. This proves to be necessary given the fact that some member states have a different interpretation of this provision. However, it has to be stressed that principle 10 has a declaratory, not a constitutive character.

27. On the loss of nationality in case of a revocation or annulment of an adoption see also principle 15, which prescribes that the nationality acquired by the adoption should not be lost, if the child has already been lawfully and habitually resident in that state for a period of more than five years. See also principle 18.

II. Nationality as a consequence of a child-parent family relationship

Principle 11

Parentage by recognition, etc.

28. Principle 11 repeats the provision of Article 6 paragraph 1 (a) of the ECN. This repetition of an existing provision proves to be necessary because several member states, including member states which ratified the ECN, do not completely implement the rules enshrined in that provision of the Convention. As already indicated in the explanatory remarks on principle 1, several states provide that a child whose parentage is established by recognition, court order or similar procedures does not acquire ex lege the nationality of his or her parent, but only if a certain procedure is followed. During that procedure it can e.g. be established whether a valid recognition took place or whether a foreign decision on parentage can be recognised. However, some states require additional conditions to be fulfilled. These additional conditions, e.g. based on the assumption that a child whose family relationship with the father is not based on marriage will be less likely to develop genuine and effective ties with the state of nationality of this father or based on the desire to avoid sham recognitions, are not in line with the ECN. For instance, requiring that the child concerned has his or her habitual residence in the state before he or she can be registered as a national or requiring evidence on the biological truth of the recognition is not conform to the provisions the ECN.

29. In some countries the acquisition of nationality by recognition, court order or similar procedures by an older minor is conditional on the consent of the minor involved. It should be underlined that this condition is not discriminatory but even desirable in order to respect the opinion of the minor involved (see principle 19).

30. Principle 11 also applies in cases where a state provides that under certain circumstances a mother has to recognise the child to which she gave birth; in this respect, it provides for the possibility to establish the legal maternity by court order or similar procedures.

Principle 12

Children conceived through medically assisted reproductive techniques

31. Most births of children conceived through medically assisted reproductive techniques do not cause special problems in the field of nationality law. Births resulting from medically assisted reproductive techniques between both biological parents are covered by the other provisions of the Recommendation. However, special nationality problems may arise if a third person is involved, in particular in the growing number cases of children being born of surrogate mothers. Consequently, there is a risk of statelessness for a child, if the state of the surrogate mother’s nationality does not attribute that nationality to the child and the state of the commissioning mother does not attribute its nationality because the commissioning mother did not give birth to the child. In some cases the child may be able to acquire the nationality of the husband or partner of the commissioning mother following the recognition by the partner of the paternity, but this is not always the case. Such risk of statelessness particularly exists if the state of the surrogate mother’s nationality makes it possible to mention the commissioning mother and her husband or partner as parents on the birth certificate of the child instead of the surrogate mother, who gave birth to the child, and the biological father.

32. In order to avoid cases of statelessness, the following rules should be observed. If the child-parent family relationship is recognised in the state of nationality of the commissioning mother or father the provisions of that state on the acquisition of nationality jure sanguinis have to be applicable. The child will be fully integrated into the family of the commissioning parents, which justifies – as in the case of adopted children – the acquisition of the nationality of the parents. Moreover, in many cases the authorities of the state of the commissioning parents will not be informed about the fact that the woman mentioned as the mother on the birth certificate did not give birth to the child. If this fact is discovered by these authorities after a considerable period of time, it should not lead to loss of nationality.

33. It should be stressed, however, that principle 12 does not oblige the recognition of the child-parent relationship as an automatic consequence of the use of surrogacy. Whether such recognition takes place depends on the private international law and – if applicable – the domestic law of the country of the commissioning parents. The principle simply underlines that if recognition takes place this should also have consequences in nationality law.

Adopted children

Principle 13

34. The ECN provides that states shall facilitate the acquisition of their nationality for children adopted by one of their nationals (Article 6, paragraph 4 (d)) as well as that the adoption of a child should not lead to statelessness (Article 7, paragraph 1 (g) juncto paragraph 2). The same rules are also included in Article 12 of the 2008 European Convention on the Adoption of Children (revised). However, neither conventions prescribe concrete ways for this to take place. Therefore, more concrete rules concerning the nationality of adopted children are needed.

35. In the case of adoption, a family relationship is created between the adopted child and his or her adopter(s). As a consequence of this newly created legal parentage, the adopted child’s legal position should, in respect of nationality law, be, as far as possible, identical to the position of a biological child of the parent(s). This is inter alia prescribed by the Hague Convention on protection of children and co-operation in respect of intercountry adoption of 29 May 1993 as well as by Article 11, paragraph 1 of the European Convention on the Adoption of Children (revised). This provision states that: “Upon adoption a child shall become a full member of the family of the adopter(s) and shall have in regard to the adopter(s) and his, her or their family the same rights and obligations as a child of the adopter(s) whose parentage is legally established.”

36. As a result, the following principles should be respected in nationality law:

Because of the adoption, an adopted child should acquire ex lege the nationality of the adoptive parents without any additional conditions or procedures. However, domestic nationality law may provide for restrictions similar to those applicable to biological children in cases of birth abroad, if these restrictions do not lead to statelessness (see principle 1). It should be irrelevant whether the adoption decree was issued in the state involved or abroad. In the latter case, the mere fact of the recognition of the foreign adoption in the state of the nationality of the adoptive parents should have nationality consequences.

37. This principle should apply to all full adoptions, i.e. where the legal relationship between the child and his or her father, mother and family of origin is terminated and replaced by the legal relationship with the adopter(s) (see Article 11 of the European Convention on the Adoption of Children (revised)). It should be applicable on adoptions by spouses, but also – if legally possible – by a non married couple or a single person. If a state provides for other forms of adoption having more limited effects (for instance simple adoption), a state may also provide for the acquisition of its nationality ex lege, but should at least facilitate the acquisition of its nationality (see principle 15). The latter rule should also apply, if a foreign simple adoption is recognised as a simple adoption, e.g. based on the rules of the 1993 Hague Adoption Convention. However, the state concerned may attach nationality consequences to the conversion of a recognised simple adoption to a full adoption.

Principle 14

38. The rule set out in principle 13 should always apply to ‘full adoption’ (which terminates the legal relationship between the child and his or her family of origin), in addition, access to the nationality of (one of) the adoptive parents by the adopted child should also be facilitated in cases of ‘simple adoption’, which has more limited effects. As children adopted by a simple adoption procedure will also integrate into the family of their adoptive parents, acquisition of the adoptive parents’ nationality is justified. Only a minority of member states provides for the possibility of a simple adoption. However, due to the 1993 Hague Adoption Convention many member states can be confronted with the obligation to recognise a simple adoption. In that case, they should facilitate the access of the adopted children concerned to their nationality.

Principle 15

Revocation or annulment of adoption

39. A special situation arises, if revocation or annulment of an adoption takes place. According to Article 7, paragraph 1 (f) of the ECN this may not cause loss of nationality, if the adopted child has already reached the age of majority. Furthermore, revocation or annulment shall never result in loss of nationality, if statelessness would be the consequence. In line with principle 14, principle 15 provides that revocation or annulment of the adoption should not lead to a loss of nationality of a state acquired by the adoption, if the child is already lawfully and habitually resident in that state for a period of more than five years. In order to fulfil principle 15 a state could provide that after a certain period of residence no loss occurs as a consequence of the revocation or annulment. However, it also would be in line with the principle if the annulment or revocation as such causes the loss of nationality, but that the state concerned avoids a permanent loss of this nationality by providing for the immediate recovery of that nationality at the moment of loss, e.g. by a naturalisation already prepared beforehand.

Principle 16

40. If a child was residing in a state with a view to an adoption and the adoption was not finalised (i.e. not granted or not completed), the child should be entitled to apply for the acquisition of the nationality of the state of residence. In this exceptional case, the state shall not require a period exceeding five years of habitual residence on its territory counted from the arrival of the child on the territory of that state. As a result of the child’s residence on this territory he or she acquires a genuine link with the state involved, whereas insufficient ties are developed with his or her country of origin. Furthermore, due to the residence of the child on its territory the state has a special responsibility for the future of this particularly vulnerable child. These facts have to be recognised and consequently, the child should have the possibility to apply for the nationality of the state of residence. Of course, in cases where the adoption was not granted or the procedure is not completed, the highest priority should be to find another (adoption) family for the child.

III. Children born on the territory of a state to a foreign parent

Principle 17

Children born on the territory

41. If a parent has been residing lawfully and habitually in a state, the child born on the territory of that state should have facilitated access to its nationality. In that case it is extremely likely that the child will be integrated into that state and this fact alone justifies facilitation. The facilitated access to nationality for persons born on the territory of a state and residing there is already prescribed by Article 6, paragraph 4 (e) of the ECN. This principle implies that a state should not delay the facilitated access to its nationality until the child reaches the age of majority. States are free to determine how they want to facilitate the access to their nationality for the children concerned. They may e.g. provide that a child acquires ex lege their nationality if the parent has resided lawfully and habitually in the state in question for an uninterrupted period of ten years, immediately preceding the birth of the child, and is in possession of a permanent residence permit. But it would also be in line with this principle to require that the parents may apply for naturalisation of their child as soon as the parent fulfils certain conditions or, e.g., when the child has resided habitually and lawfully in the state of birth for a specified period and has reached a certain age.

42. An enhanced facilitation of the acquisition of the nationality of the country of birth and residence should be provided in the case that a child is born in a country to foreign parents, one of whom was also born in that country. If a child is born to a second generation parent on the territory while his or her parents and grandparents have spent a considerable part of their life residing in this country, the child will usually be integrated. Consequently, an enhanced facilitation of the acquisition of the nationality of the state of birth is justified. A state could decide to attribute under these circumstances its nationality ex lege at birth. However, another possibility is to grant the right to register the child as a national on application by the parents or to reduce the conditions for the acquisition of the nationality of the state of birth in other manners. States enjoy a wide margin of appreciation concerning means to provide this enhanced facilitation, and may, for instance, where facilitating the acquisition of their nationality require the renunciation of the other nationality or nationalities acquired by birth.

IV. Position of children treated as nationals

Principle 18

43. Article 7, paragraph 1 (f) of the ECN provides for the loss of nationality in cases of non-fulfilment of the preconditions, which led to the acquisition of the nationality ex lege, during the minority of the person involved. Several different situations are covered by this provision: firstly, the provision applies to situations where a child has acquired a nationality as a foundling and later, after discovery of his or her parent(s), appears to have the nationality of the parent(s) jure sanguinis. Secondly, the rule also applies in the event that a child has acquired the nationality of his or her state of birth because he or she would have otherwise been stateless, but further evidence shows that he or she had also acquired another nationality jure sanguinis. In both cases, the loss involved is a correction of a default jus soli acquisition.

44. But the loss can also be the consequence of a retroactive (ex tunc) loss of the family relationship on which the acquisition of nationality jure sanguinis was based, for example because of a successful denial of paternity, annulment of a recognition of paternity or an ex tunc annulment of an adoption.

45. It has to be stressed that Article 7, paragraph 1 (f) of the ECN also applies if it is established that, for instance, the family relationship which constituted the basis of the acquisition of the nationality of the child, was registered by mistake. The latter may be the case if for example the identity of the parent, which is relevant for the jure sanguinis acquisition of nationality, is discovered to be wrong, or in situations where it is discovered, after acquisition of the nationality by an ex lege extension of naturalisation, that no family relationship ever existed between the parent and the child.

46. Article 7 of the ECN limits this type of loss of nationality in two ways. Firstly, no loss should take place on this ground after the person involved has reached the age of majority. Secondly, statelessness should not be the consequence.

47. In the past few years serious doubts have arisen in several states regarding the age limit mentioned in Article 7, paragraph 1 (f) of the ECN. It is doubtful that the loss of nationality can still be justified when the child involved has been, in a completely legal way, in possession of a nationality for a considerable number of years. This is in particular the case if the child was treated as a national for a period exceeding the period of residence required for naturalisation, which according to Article 6, paragraph 3 of the ECN should not exceed ten years. Furthermore, the desirable preferential treatment of children could even justify a much shorter limit. This principle does not prescribe a certain maximum period after which the non (or no longer) fulfilment of the preconditions for the acquisition should not have consequences. Domestic law has to specify the required period of time. However, it is obvious that this period should be shorter than 18 years (see Article 7, paragraph 4 (f) of the ECN).

48. This principle does not apply if treating the child as a national is based on fraudulent behaviour or fraudulent information provided about the child. Such is, for instance, the case if the full identity of the child including existing family relationships is not disclosed by his or her legal representative.

V. Rights of children in proceedings affecting their nationality

Principle 19

49. Respect for the independent personality of the child and taking account of his views and wishes could imply restrictions on the parents’ rights to speak for their children in nationality matters. In particular, rules have to be designed in order to increase the relative weight assigned to the will of the child in the form of the right to be heard and the right to give her or his opinion. The non-observation of the right of the child to be heard in cases of acquisition and loss of nationality can – under certain circumstances – violate Articles 8 and 12 of the United Nations Convention on the Rights of the Child. If a child is considered by law as having sufficient understanding, her or his nationality should not be decided without taking into account her or his opinion. Domestic law has to determine the age at which a child is deemed to have sufficient understanding. However, this age should not be more than 14 years (compare Article 5, paragraph 1 (b) of the 2008 European Convention on the Adoption of Children (revised)). An exception on this rule is reasonable, if the child has mental disability.

50. The right to be heard is of particular importance in cases of application for naturalisation on behalf of the child and in cases where a request for extension of the naturalisation of a parent to the child is being made. In order to give the nationality authorities involved a good overview of the situation and allow them to take a decision in the best interests of the child, it can also be useful to hear the other parent of the child, in particular if the child would lose the nationality of this other parent by the naturalisation or the extension. Furthermore, the right to be heard is of importance in case of an application for loss of nationality made on behalf of the child or a request for extension of the loss of nationality by a parent to the child.

51. This principle only applies in case of nationality procedures and not in cases where a child acquires or loses a nationality ex lege.

Principle 20

52. Legislators should also make it possible for children considered by law as having sufficient understanding to file independent applications requesting the granting of nationality. Moreover, these children should also be allowed to apply for loss of a nationality, within the boundaries of Article 8 of the ECN. These children should be represented – as required by domestic law – by their legal representative or by a guardian ad litem (see paragraph 13). States may prescribe that parents with joint parental responsibility have to represent their children together. States may also provide that a child having attained a certain age determined by domestic law may file applications for the acquisition or loss of nationality independently without being represented.

53. Domestic law has to determine the age at which a child is deemed to have sufficient understanding. However, this age should not be more than 14 years (compare Article 5, paragraph 1 (b) of the 2008 European Convention on the Adoption of Children (revised)).

Principle 21

Access to a court by children in nationality matters

54. A child should have access to a court - when necessary according to domestic law represented by their legal representative or by a special guardian ad litem (see paragraph 13) - in order to remedy decisions of authorities regarding her or his nationality. This is particularly important if the acquisition of nationality is denied and in cases of loss of nationality. In cases of deprivation of nationality, the decision on the nationality status of the child should always be made independently from the decision regarding the nationality of a parent and special weight should be given to the vulnerability of the person concerned who is a child. Access to a court should also be possible in cases where the competent authorities conclude that the child involved never acquired the nationality.

55. This principle is complementary to Article 12 of the ECN. The aim of this principle is to give children in this respect the same rights than adults.

Principle 22

Right to apply for recovery of nationality

56. A child may have lost his or her nationality during his or her minority due to the acts of his or her legal representative or due to an extension of the loss of this nationality by a parent. In those cases, the child should be given a right to apply for the recovery of the nationality concerned within a certain period of time - which should not be shorter than three years - after having reached the age of majority, or before having reached that age when represented by a legal representative or a guardian ad litem (see paragraph 13). States can set additional conditions which have to be fulfilled, e.g. the habitual residence of the person concerned on the territory of the state at the moment of application for recovery.

VI. Registration of birth

Principle 23

57. States should register the birth of every child born on their territory, even in cases of illegal presence of foreign or stateless parents or when the parents of the child are unknown. States should not refuse the registration because of the foreign nationality of the child. The registration should be free of any charge and happen without delay if the period within which the birth of the child should have been registered has already expired. The registration of birth should take place in accordance with the domestic legislation of the state concerned in all cases where a child is discovered on the territory of the state and no evidence exists that the child was born abroad. It should be stressed, that the term ‘child’ applies – as is the case in the ECN – to every person who has not yet reached the age of majority. The birth certificate can be subject to later adjustments in accordance with the law. This registration of birth is crucial for the implementation of the rules on avoidance of statelessness and is essential for giving the child access to the rights guaranteed in the United Nations Convention on the Rights of the Child. The mere registration of birth does not necessarily mean that the state of birth must grant its nationality to such a child, but it is an essential step necessary to give the child access to the protection of a state with which a legal bond in terms of nationality exists.

Annex: Glossary

De facto

factually; in fact

De jure

legally

Ex lege

by operation of the law, automatically

Ex nunc

without retroactivity

Ex officio

by virtue of office or position

Ex tunc

with retroactivity

Guardian ad litem

representative appointed by a court in order to represent a minor in certain legal proceedings

Jure sanguinis

by jus sanguinis

Jure soli

by jus soli

Jus sanguinis

Lit.: right of the blood: a person acquires the nationality of a parent at birth or by the establishment of a child-parent family relationship

Jus sanguinis a matre

Lit.: right of the blood from the mother: a person acquires the nationality of the mother at birth or by the establishment of a child-mother family relationship

Jus sanguinis a patre

Lit.: right of the blood from the father: a person acquires the nationality of the father at birth or by the establishment of a child-father family relationship

Jus soli

Lit.: right of the soil: a person acquires the nationality of his country of birth

Pater est quem matrimonium demonstrat

The husband of the mother is the legal father of the child

Praesumptio juris sanguinis

presumption of an acquisition of a nationality jure sanguinis

Appendix V

Draft terms of reference of the Group of specialists on child-friendly justice (CJ-S-CH) for 2010

Fact sheet

Name of Committee:

Group of Specialists on child-friendly justice (CJ-S-CH)

Compliance with Resolution
Res(2005)47:

Yes

Programme of Activities: projects

Project 2008/DGHL/1427 “Public and private law reform and implementation of standards”

Project 2008/DGHL/1432 “Monitoring the operation of Conventions on co-operation in the criminal field”

Project 2008/DGHL/1409 “Substantive legal analysis of HR issues and input in the development of CoE policies on such issues”

Project relevance :

1. The Declaration and the Action Plan adopted by the Third Summit of the Heads of State and Government of the Council of Europe (Warsaw, 16-17 May 2005), in particular chapters on “Strengthening democracy, good governance and the rule of law in member states” (Chapter I.3), “Ensuring compliance of the commitments made by member states and promoting political dialogue” (Chapter I.4), and “Building a Europe for children” (Chapter III.2);

2. Resolution No. 2 on child-friendly justice of the 28th Conference of European Ministers of Justice (Lanzarote, Spain, 2007).

3. Contribution to core values of the Council of Europe, namely by dealing with legal reforms in the field of public and private law. The development of the rule of law in public and private law will strengthen national legal frameworks and the rules applicable in the relationship between the individual and the state and between individuals. The Council of Europe guidelines on child-friendly justice will contribute to enhancing the rights of children in all areas of justice: civil, administrative and criminal as well as to ensuring their basic human rights.

4. Decision CM/Del/Dec(2008)1037 of 8 October 2008, whereby the Committee of Ministers took note of the priorities of the CDCJ for 2008-2010 explaining the manner in which the CDCJ intends to proceed to the drafting of the Council of Europe guidelines on child-friendly justice.

5. A high-level Council of Europe Conference organised in co-operation with the Swedish Chairmanship of the Committee of Ministers on the future of the programme “Building a Europe for and with children” (8-10 September 2008) which led to the Council of Europe’s strategy for 2009-2011.

6. The high-level Council of Europe Conference organised in co-operation with the Spanish Chairmanship of the Committee of Ministers on “The protection of children in European justice systems” which was held in Toledo (Spain) on 12 and 13 March 2009.

The abovementioned conferences were opportunities for all stakeholders to identify the areas that need to be addressed in the guidelines.

Project added value:

1. Council of Europe guidelines on child-friendly justice will serve as a practical tool for member states assisting them in adapting their judicial system to the specific needs of children.

2. The guidelines will be based on existing international and regional instruments and will present examples of best practices.

3. The project will cover not only the criminal law aspect, but also civil and administrative law aspects as well as basic human rights.

4. The guidelines will address the place and voice of the child at all stages of judicial and extrajudicial proceedings and will ensure that the rights of the child to information, representation and participation are fully respected.

5. Important references to the relevant case law of the European Court of Human Rights will also be given.

6. The guidelines will facilitate and improve the access to justice of children that for whichever reason and in whichever capacity are likely to be brought into contact with justice.

Financial information:

Number of meetings in 2010:
2 meetings of 3 days each – 16 members and a consultant/scientific expert.

Travel and subsistence expenses shall be borne by 3 Steering Committees:
CDCJ will cover the costs of 7 specialists
CDPC will cover the costs of 7 specialists
CDDH will cover the costs of 2 specialists

Budget information for 2010:
2 meetings of 3 days, 16 experts: € 34 400 (€ 17 200  /  meeting)
namely:
- CDCJ, 7 specialists: € 15 000  (€ 7,500 / meeting)
- CDPC, 7 specialists: € 15 000 (€ 7,500 / meeting)
- CDDH, 2 specialists: € 4 400 (€ 2,200 / meeting)

- Interpretation: € 12 000 (at the charge of the CDCJ)
- Travel and subsistence expenses and fees for consultant/ scientific expert (for 2 meetings + CDCJ): € 4 800 (at the charge of the CDCJ)

Total annual budget at charge of the CDCJ: € 31 800

Draft terms of reference of the Group of specialists on child-friendly justice (CJ-S-CH) for 2010

1.

Name of Committee:

Group of Specialists on child-friendly justice (CJ-S-CH)

2.

Type of Committee:

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 the Action Plan adopted by the Third Summit of the Heads of State and Government of the Council of Europe (Warsaw, 16-17 May 2005), in particular chapters on “Strengthening democracy, good governance and the rule of law in member states” (Chapter I.3), “Ensuring compliance of the commitments made by member states and promoting political dialogue” (Chapter I.4), and “Building a Europe for children” (Chapter III.2);

Resolution No. 2 on child-friendly justice, adopted at the 28th Conference of European Ministers of Justice (Lanzarote, October 2007);

the United Nations Convention on the Rights of the Child;

the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules);

the European Convention on Human rights and the case law of the European Court of Human Rights;

the European Convention on the Exercise of Children’s Rights (1996, ETS No. 160);

the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (2007, CETS No. 201);

the Council of Europe programme “Building a Europe for and with children” and the Council of Europe Strategy on the rights of the child 2009-2011;

the conclusions of the Conference “Building a Europe for and with children: Towards a strategy for 2009-2011”, and in particular the conclusions of its Seminar 3: “Towards European guidelines on child-friendly justice: identifying core principles and sharing examples of good practice” (Stockholm, September 2008);

the conclusions of the Council of Europe Conference on “The protection of children in European justice systems” (Toledo, 12-13 March 2009);

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

 

Under the authority of the European Committee on Legal Co-operation (CDCJ), in co-operation with the European Committee on Crime Problems (CDPC), the Steering Committee on Human Rights (CDDH) and the European Commission for the Efficiency of Justice (CEPEJ) and in relation with the implementation of Project 2008/DGHL/1427 “Public and private law reform and implementation of standards”, Project 2008/DGHL/1432 “Monitoring the operation of Conventions on co-operation in the criminal field” and Project 2008/DGHL/1409 “Substantive legal analysis of HR issues and input in the development of CoE policies on such issues” of the Programme of Activities, the Group is instructed to:

i.

Finalise the drafting of the Council of Europe guidelines on child-friendly justice started in 2009;

Such guidelines, based on existing international, European and national instruments, should:

- serve as a practical tool for member states in adapting their judicial system to specific needs of children in criminal, civil or administrative justice;

ii.

- apply to all ways in which children are likely to be, for whichever reason and in whichever capacity, brought into contact with criminal, civil or administrative justice;

- consider the issue of the place and the voice of the child in judicial proceedings as well as extrajudicial proceedings (in particular alternative dispute resolution means), before the proceedings (for instance the procedural right to initiate proceedings and its implementation), during the proceedings and after the judicial decision (enforcement procedures) or sentence;

- ensure that, in the above-mentioned proceedings, the rights of children to information, to representation and to participation are fully respected;

- present examples of best practices, in particular in respect of the implementation of existing legal standards;

Pursue the identification of possible lacunae in law and in practice, and propose remedial solutions.

5.

Composition of the committee:

5.A

Members

 

The Group shall be composed of 16 members: a Chairman appointed by the CDCJ, a Vice-Chairman appointed by the CDPC and 14 specialists appointed by the Secretary General in consultation with the Chairpersons of the CDCJ (six specialists), of the CDPC (six specialists) and of the CDDH (two specialists).

The composition of the Group should reflect a multidisciplinary approach concerning all fields to be covered by the guidelines.

Participation costs of members to meetings of the Group will be borne by the Council of Europe budget sub-heads of the concerned committees.

5.B

Participants

i.

ii.

The Parliamentary Assembly may send a representative to meetings of the Group, without the right to vote and at the expense of its administrative budget.

The following committees and organs may send representatives to meetings of the Group, without the right to vote and at the expense of their respective administrative budgets:

- European Commission for the Efficiency of Justice (CEPEJ);
- Consultative Council of European Judges (CCJE);
- Consultative Council of European Prosecutors (CCPE);
- European Steering Committee for Youth (CDEJ);
- European Committee for Social Cohesion (CDCS).

5.C

Other participants

i.

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.

ii.

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

iii.

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

- Hague Conference on Private International Law (HCCH);
- Interagency Panel on Juvenile Justice (IPJJ);
- International Commission on Civil Status (ICCS);
- United Nations Children’s Fund (UNICEF);
- Office of the United Nations High Commissioner for Human Rights (OHCHR).

5.D

Observers

 

The European Network of Ombudspeople for Children (ENOC) may send a representative to meetings of the Group, without the right to vote or defrayal of expenses.

6.

Working methods and structures:

i.

The Group should ensure, as far as possible and within the budgetary resources available, the meaningful participation of children and should take children’s views into consideration in the preparation of the guidelines.

ii.

iii.

To fulfill its terms of reference and within the budgetary resources available, the Group may use consultants or scientific experts and can organise hearings and consultations.

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

7.

Duration:

 

These terms of reference will expire on 31 December 2010.


Appendix VI

Draft terms of reference of the Group of specialists on access to justice for migrants and asylum seekers (CJ-S-MG)

Factsheet

Name of Committee:

Group of Specialists on access to justice for migrants and asylum seekers (CJ-S-MG)

Compliance with Resolution Res 2005)47:

YES

Programme of Activities: project(s)

Project 2008/DGHL/1427 “Public and Private law reform and implementation of standards”

Project relevance:

- 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);

- Declaration and Action Plan adopted by the Third Summit of Heads of State and Government (Warsaw, 16-17 May 2005), in particular chapters on strengthening democracy, good governance and the rule of law in member states on one hand (Chapter I.3), and on managing migration on the other (Chapter III.8);

- European Convention on Human Rights and other relevant information and standards emanating from the Council of Europe and other international mechanisms, such as relevant recommendations of the Committee of Ministers, the case law of the European Court of Human rights and documents developed within the framework of the Office of the United Nations High Commissioner for Refugees (UNHCR);

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

- Report presented by the Secretary General of the Council of Europe on the follow-up to Resolutions adopted at previous conferences of European Ministers of Justice (document MJU-29(2009)02);

- Study on access to justice for migrants and asylum seekers in Europe (document CDCJ(2009)2);

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

Project added value:

The work carried out by the Group of Specialists shall permit to:

- draft a comprehensive recommendation on the matter which, taking into account the confusion and the normative gaps at international and national level, will clarify the current measures aiming at protecting and ensuring access to justice for migrants and asylum seekers, and will develop new ones;

- pay a particular attention to the issue of minors unaccompanied or separated from their family, in order to consolidate the acquired standards in a consistent and understandable format, as well as to study an aspect of the broader project on child-friendly justice (work of the CJ-S-CH);

- pay a particular attention to the issue of refugees and internally displaced persons (IDPs);

 

- bring out the relevant case law of the European Court of Human Rights applicable to migrants and asylum seekers with a view to consolidating the acquired standards and preventing future applications before the Court;

- promote the ratification and the signature of the Council of Europe Conventions in this field by member States in order to establish a common basis of minimum binding standards for migrants and asylum seekers;

- take into consideration the situation of LGBT persons migrating and seeking asylum, in the framework of actions by the Committee of Experts on discrimination on grounds of sexual orientation and gender equality (DH–LGBT, whose Steering Committee may be represented at meetings of the Group), as well as the issue of the discrimination of LGBT persons and families in this field;

- implement, modernise and harmonise the relevant standards and legal or structural good practices with a view to ensuring access to justice;

- develop, through the recommendation and its explanatory memorandum, innovative structures in order to facilitate and ensure the access to justice in practice.

Financial information:

9 days of meetings, over 3 meetings x 9 members [travel and subsistence expenses for 8 specialists and 1 Chairperson] = 28,800 €

Interpretation: 18,000 € for 3 meetings

Translation: 9,000 €

Consultant: 4,000 € (travel and subsistence expenses for 3 meetings + CDCJ)

Total annual budget of the Group = 59,800 €

Draft terms of reference of the Group of specialists on access to justice for migrants and asylum seekers (CJ-S-MG)

1.

Name of Committee:

Group of Specialists on access to justice for migrants and asylum seekers (CJ-S-MG)

2.

Type of committee:

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 the Action Plan adopted by the Third Summit of Heads of State and Government (Warsaw, 16-17 May 2005), in particular chapters on strengthening democracy, good governance and the rule of law in member states on one hand (Chapter I.3), and on managing migration on the other (Chapter III.8);

 

- The European Convention on Human Rights and other relevant information and standards emanating from the Council of Europe and other international mechanisms, such as relevant recommendations of the Committee of Ministers, the case law of the European Court of Human rights and documents developed within the framework of the Office of the United Nations High Commissioner for Refugees (UNHCR);

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

- The report presented by the Secretary General of the Council of Europe on the follow-up to Resolutions adopted at previous conferences of European Ministers of Justice (document MJU-29(2009)02);

- The study on access to justice for migrants and asylum seekers in Europe (document CDCJ(2009)2);

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

 

Under the authority of the European Committee on Legal Co-operation (CDCJ), and in relation with the implementation of Project 2008/DGHL/1427 “Public and private law reform and implementation of standards” of the Programme of Activities, the Group is instructed to draw up a draft recommendation on access to justice for migrants and asylum seekers, with its explanatory memorandum.

The Group shall pay a particular attention to the following elements:

- The identification of means and measures with a view to ensuring and facilitating an effective access to justice, including through information and the provision of legal aid and assistance;

- The modernisation and harmonisation of relevant standards, their implementation and the identification of legal or structural good practices with a view to ensuring access to justice;

- The situation of minors unaccompanied or separated from their family as a particularly vulnerable group;

- The situation of refugees and internally displaced persons (IDPs).

5.

Composition of the Committee:

5.A.

Members

 

The Group shall be composed of 9 members: a Chairperson to be appointed by the CDCJ and 8 specialists to be appointed by the Secretary General, with a thorough knowledge of the issues relating to the systems of access to justice for migrants and asylum seekers, including minors unaccompanied or separated from their family, as well as the international standards in this field.

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

5.B.

Participants

i.

The following bodies 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-head:

- European Committee on Crime Problems (CDPC);
- Steering Committee for Human Rights (CDDH);
- European Committee on Migration (CDMG);
- European Committee of Social Rights (ECSR);
- Consultative Council of European Judges (CCJE);
- European Commission for the efficiency of Justice (CEPEJ).

ii.

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

iii.

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

iv.

The Conference of International Non-governmental Organisations (INGOs) of the Council of Europe may send a representative to meetings of the Group, without the right to vote and at the charge of its budget.

5.C

Other participants

May also send a representative to the meetings of the Group, without the right to vote or defrayal of expenses:

i.

The European Commission and the Council of the European Union;

ii.

The states with observer status with the Council of Europe (Canada, Holy See, Japan, Mexico, United States of America);

iii.

The following intergovernmental organisations:

- United Nations Children’s Fund (UNICEF);
- Office of the United Nations High Commissioner for Refugees (UNHCR);
- Office of the United Nations High Commissioner for Human Rights (OHCHR);
- International Organization for Migration (IOM);
- Organization for Security and Co-operation in Europe (OSCE).

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:

- Amnesty International;
- Human Rights Watch;
- European Legal Network on Asylum (ELENA);
- Human Rights First ;
- European Federation for Street Children.

6.

Working Methods and Structures

To fulfill its terms of reference and within the budgetary resources available, the Group may have recourse to one consultant and organise consultations.

The CJ-S-MG is authorised to invite other participants and/or observers to meetings of the Group, without the right to vote or defrayal of their expenses.

The CJ-S-MG will have to request the necessary authorisation from the CDCJ for the admission of observers (other than those already identified in the Terms of Reference).

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

The Group of Specialists shall hold 9 days of meetings, over 3 meetings in total.

7.

Duration

These terms of reference will expire on 31 December 2010.

Appendix VII

Questionnaire on the evaluation of the implementation of the recommendation (2007)14 on the legal status of non-governmental organisations in Europe

Recommendation CM/Rec(2007)14 concerning the legal status of non-governmental organisations in Europe was adopted by the Committee of Ministers of the Council of Europe on 10 October 2007.

Further to a request of the Committee of Ministers7, the European Committee on Legal Co-operation (CDCJ) is entrusted with the task of assessing the implementation of this Recommendation by member states.

You are thus kindly requested to answer the questions below.

Please send your replies to the following e-mail address: cdcj@coe.int no later than 1 December 2009.

1. Was Recommendation CM/Rec(2007)14 concerning the legal status of non-governmental organisations in Europe translated into official language(s) of your country?

2. Have any dissemination and awareness raising means been used and which were the recipients?

3. What measures have possibly been taken for training of officials?

4. What means were set up to facilitate the access by NGOs to rules and procedures applicable to them?

5. Were measures taken to decrease the cost of establishment of NGOs? Are specific categories of NGOs benefiting from public support? If so, on what conditions?

6. What other measures were taken by your authorities since the adoption of the Recommendation to ensure its implementation?

7. For member states not party to the European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations (ETS n° 124), is accession to this convention being considered?

8. What measures were taken to facilitate the access of children to the establishment of NGOs?

9. Have any changes been brought to the relevant legislation since the adoption of the Recommendation, for instance with a view to enabling NGOs to undertake research, education and advocacy on issues of public debate?

10. Is the decision concerning the acquisition of legal personality submitted to a time-limit? Which one?

11. How can a NGO responsibility be engaged in case of negligence or in case of fault? What is the situation in respect of NGO board members and officers (civil and criminal responsibilities)?

12. Can a NGO function without being required to obtain legal personality?

13. In what case can a NGO have its legal personality terminated?

14. Are there measures obliging NGOs to be accountable on their activities? Accountable to members, donors and/or the government?

15. What measures are taken to protect third parties’ rights?

16. Do co-ordination bodies facilitating the dialogue among NGOs exist?

Appendix VIII

Opinion of the CDCJ on Recommendation 1877 (2009) concerning “Europe’s forgotten people: protecting the human rights of long-term displaced persons” of the Parliamentary Assembly of the Council of Europe

1. Following the adoption, by the Parliamentary Assembly of the Council of Europe, of Recommendation 1877 (2009) on “Europe’s forgotten people: protecting the human rights of long-term displaced persons” (hereafter “the Recommendation”), the Committee of Ministers decided to transmit it to the European Committee on legal co-operation (CDCJ) for information and possible comments, before 31 October 2009.

2. The CDCJ has taken note of the Recommendation – which makes reference to Recommendation Rec (2006)6 of the Committee of Ministers to member states on internally displaced persons and to the United Nations guidelines on internally displaced persons - and has decided to underline the points below.

3. Firstly, the CDCJ wishes to underline that one of the fundamental principles of the Council of Europe is to preserve and promote human rights, that is to say the rights of every man, woman and child. This aim concerns every person living on European territory and internally displaced persons (hereafter IDPs) – of which there is still a very high number within member states8 - are nationals of the Council of Europe’s member states whose the rights must be respected.

4. The CDCJ echoes the appeal made by the Parliamentary Assembly for co-operation and intensification of the efforts made by international actors in order to improve the legal and normative frameworks concerned.

5. The mandate of the CDCJ gives it competence to promote reforms and legal co-operation concerning refugees and asylum seekers but the question of the relevance and the opportunity of setting up a “a new permanent committee within the Council of Europe with a mandate to examine asylum and displacement issues to replace the ad hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR)” (paragraph 15.2.2) must be examined not only in light of its topicality, importance and credence but also in light of the transversal and multidisciplinary nature of the subject.

6. In fact, the CDCJ is only competent for dealing with the question of IDPs in regard to a limited number of aspects mentioned in the Recommendation, such as compensation (paragraph 15.3.6) and access to rights, legal documentation and free legal assistance (paragraph 15.3.7).

7. The question of access to justice is at the centre of a task that the CDCJ plans to give to a Group of Specialists in 2010, following Resolution No.1 on access to justice for migrants and asylum seekers, adopted during the 28th Conference of European Ministers of Justice (25-26 October 2007, Lanzarote, Spain).

8. In this respect, it should be underlined that the IDPs, although they have not crossed any borders and are nationals of the countries concerned, will also be dealt with by this Group, as they too meet with obstacles of a practical nature regarding accessing justice.

9. The Group of Specialists will have the task of preparing a draft recommendation, after having identified the means and measures with a view to ensuring and facilitating an effective access to justice, including through information and the provision of legal aid and assistance. The work of the Group will focus on the modernisation and harmonisation of the relevant standards, their implementation as well as the identification of legal or structural good practices with a view to ensuring access to justice for the categories of persons concerned.

10. Finally the CDCJ underlines its desire to be associated with any future work to be carried out in the field.

Appendix IX

Reply by the CDCJ to the Committee of Ministers on the discrimination on grounds of sexual orientation or gender identity

1. At its 1031st meeting on 2 July 2008, the Committee of Ministers instructed the European Committee on Legal Co-operation (CDCJ) to “examine 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 and to report back.” (Appendix - item 4.3. c)

2. Pursuant to this decision of the Committee of Ministers, the CDCJ through its Secretariat commissioned the Danish Institute for Human Rights (DIHR) to carry out a study providing a detailed overview of situations where people joined in partnerships or living in cohabitation do not enjoy equal legal protection on grounds of their sexual orientation or gender identity, and identifying in law and in practice of the Council of Europe member states possible measures to combat such discrimination.

3. At its 84th meeting (Strasbourg, 12-13 March 2009), the Bureau of the CDCJ took note of the comparative study completed by the DIHR in early March 2009 (CDCJ (2009) 9), and decided to forward it for presentation to its subordinate Committee of Experts on Family Law (CJ-FA) on the occasion of its 38th plenary meeting (17-20 March 2009). Following this meeting, the study was sent to all 47 delegations to the CJ-FA as well as to other Council of Europe bodies, namely the Committee of Experts on Discrimination on Grounds of Sexual Orientation or Gender Identity (DH-LGBT), the Committee for Human Rights and Legal Affairs of the Parliamentary Assembly, and the Commissioner for Human Rights, for information and possible comments by 15 April 2009.

4. Comments were submitted by the delegations of Belgium, Ireland, Italy and the Holy See to the CJ-FA as well as by the Committee of experts on Discrimination on Grounds of Sexual Orientation and Gender Identity (DH-LGBT) and the Commissioner for Human Rights. They are enclosed in document CDCJ (2009) 16 Mos.

5. The present document sets out the reply of the CDCJ based on the DIHR’s study and related submitted comments with a view to reporting back to the Committee of Ministers as instructed.

6. The CDCJ notes that the major findings of the DIHR study are that:

· Under international human rights law, the decision to recognise same-sex marriage and/or registered partnerships as well as the rights deriving from such unions is left to the state’s margin of appreciation.

· The resulting differences in member states generally influence the equal access for lesbian, gay, bisexual and transgender (LGBT) persons to exercise and enjoy their rights within the areas of family law covered by the study, i.e. adoption and assisted reproduction, family reunification, health, housing and property.

· The examples given in the study reveal a mosaic of rules, perceptions and practices that embrace quite opposite positions: from full recognition of LGBT persons as holding equal rights as couples of different sex in connection with adoption, assisted reproduction, family reunification, health, housing and property to rejection of any status in these areas.

· The Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity have taken the same approach as the human rights monitoring bodies, and affirm that it is left to the discretion of states to decide whether or not to recognise same-sex marriages or partnerships. With respect to states already recognising such partnerships, the Yogyakarta Principles stress that married or registered same-sex partners should enjoy the same rights as married or registered different-sex partners. In addition the Principles recognise that unmarried or non-registered same-sex couples should enjoy the same rights as unmarried or non-registered different-sex couples. The Yogyakarta Principles suggest a level of protection for LGBT persons and their equal access to rights that is much higher than that generally experienced in the member states.

7. The CDCJ recognises that this topic is complicated by the “mosaic” of different attitudes outlined in the Danish institute report. It looks forward to the development of measures to address the issues that have been identified and considers that the Council of Europe has an essential role in bringing this about.

8. The CDCJ takes note of the consistent references made to the study conducted by the EU Fundamental Rights Agency on “Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity in the EU Member States”. The CDCJ equally notes the relevant references made in the DIHR study to the Yogyakarta Principles. The Commissioner for Human Rights considers this text as “an important tool in identifying the obligations of States to respect, protect and fulfill the human rights of all persons, regardless of their sexual orientation or gender identity”, which the Commissioner recommends all governments of the Council of Europe member states to study and whose principles he recommends to build on through concrete action.9 These principles were drafted by a group of 29 independent international human rights experts, many being former members of United Nations treaty bodies, including the former High Commissioner for Human Rights, Ms Mary Robinson. They reaffirm existing binding international legal standards in relation to sexual orientation and gender identity, shedding light on the obligations of states to respect, protect and fulfill the human rights of all persons, regardless of their sexual orientation or gender identity.

9. Recalling the current drafting by the DH-LGBT of a recommendation of the Committee of Ministers on measures to combat discrimination based on sexual orientation or gender identity, the CDCJ notes with satisfaction that several topics identified in the list of issues and practical measures for possible inclusion in the draft recommendation interest the work of the CDCJ and of the CJ-FA in particular issues relating to the respect for private life, freedom of movement, health-related matters, and asylum seekers and refugees. The CDCJ therefore invites the DH-LGBT to make full use of the DIHR’s study and of the CDCJ/CJ-FA’s expertise in these specific areas.

10. As a result of the examination of this topic, the CDCJ, depending on the outcome of the work of the DH-LGBT and in line with the message from the Committee of Ministers to steering committees and other committees involved in intergovernmental co-operation at the Council of Europe on equal rights and dignity of LGBT persons(Appendix– item 4.3. b), will examine the feasibility of preparing an instrument in civil and administrative law with a view to improving the protection of the rights of LGBT persons. Additionally the CDCJ would welcome the organisation of a round table gathering key international actors in the field with a view to identifying possible standard-setting needs, relevance and feasibility of drafting such standards.

Appendix

Decisions adopted by the Committee of Ministers at its 1031st meeting on 2 July 2008 (CM/Del/Dec(2008)1031)

    Appendix 5
    (Item 4.3b)

    Message from the Committee of Ministers to steering committees and other committees involved in intergovernmental co-operation at the Council of Europe on equal rights and dignity of lesbian, gay, bisexual and transgender persons

    (Adopted by the Committee of Ministers on 2 July 2008
    at the 1031st meeting of the Ministers’ Deputies)

    The Committee of Ministers recalls that it is strongly attached to the principle of equal rights and dignity of all human beings, including lesbian, gay, bisexual and transgender person.10 The Council of Europe’s message of tolerance and non-discrimination applies to all European societies, and discrimination on grounds of sexual orientation or gender identity is not compatible with this message.

    It notes that instances of discrimination on grounds of sexual orientation or gender identity as well as homophobia and intolerance towards transgender persons are regrettably still widespread in Europe.

    Therefore, it invites all steering committees and other committees involved in intergovernmental co-operation at the Council of Europe to give, within their respective terms of reference, due attention in their current and future activities to the need for member states to avoid and remedy any discrimination on grounds of sexual orientation or gender identity and to make proposals for specific intergovernmental and other activities designed to strengthen, in law and in practice, the equal rights and dignity of lesbian, gay, bisexual and transgender persons and to combat discriminatory attitudes against them in society.

Item 4.3c

Discrimination on grounds of sexual orientation: Possible action by the Committee of Ministers –
Draft instructions to the European Committee on Legal Co-operation (CDCJ)

(
SG/Inf(2008)4, GR-H(2008)19, DD(2008)398)

Decision

The Deputies instructed the European Committee on Legal Co-operation (CDCJ) to examine 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 and to report back.

Appendix X

Action plan of the CDCJ for 2010

Foreword

The European Committee on Legal Co-operation (CDCJ) has a wide scope of competence in public and private law. A core challenge for it, as a standard-setting body, is to efficiently mainstream the large variety of its activities and it is thus supported in this wide mandate by several specialised subordinate bodies.

With a view to rationalising and clarifying its work, the CDCJ has decided to regularly set out its priorities in an Action Plan.

Aligning itself with the budgetary functioning of the Council of Europe which is set on a yearly basis, the present document sets out the CDCJ’s Action Plan for one year (i.e. 2010), while enclosing proposals likely to pave the way for its future work in 2011 and 2012.

As a general principle, the CDCJ, which traditionally follows a three-fold approach and distinguishes between its activities of standard-setting, implementation and monitoring of standards, and co-operation and campaign, has decided to re-focus its activities on its core mission: standard-setting.

Priorities

In identifying its priorities in standard-setting for 2010, the CDCJ thus suggests the following priorities:

1. family law: drafting of one or more legal instrument(s) on the legal status of children and on parental responsibilities with a view to remedying the obsolescence of the 1975 European Convention on the Legal Status of Children born out of Wedlock (ETS No 85);

2. civil law, rule of law and administrative law: ensuring follow-up to resolutions of the 29th Council of Europe Conference of Ministers of Justice (Tromsø, 18-19 June 2009);

3. nationality: organising the 4th Council of Europe conference on nationality on “the changing concepts of nationality in today’s and tomorrow’s globalised world” aimed at identifying new areas of work and paving the way for the setting-up of a group of specialists in 2010 and/or 2011;

4. access to justice:

- pursuing the work of the Group of Specialists on child-friendly justice (CJ-S-CH) concerning the preparation of Council of Europe guidelines on this topic;

- preparing a new recommendation on access to justice for migrants and asylum seekers based on the “report on access to justice for migrants and asylum seekers in Europe” (CDCJ(2009)2), following Resolution No. 1 of the 28th Conference of European Ministers of Justice (Lanzarote, 25-26 October 2007);

5. data protection and new technologies: finalising the draft recommendation on the protection of individuals with regard to automatic processing of personal data in the framework of profiling, and assessing the need and feasibility of drafting new standards.

Furthermore, subsidiary priorities include:

6. in the field of medical responsibility: examining the feasibility of drafting a recommendation on alternative dispute resolution mechanisms in this specific area, in line with the conclusions of the Conference “The ever-growing challenge of medical liability: national and European responses” (Strasbourg, June 2008) while building on the work carried out on this topic by the CDCJ in the past;

7. In the field of overindebtedness: starting preparatory work, in 2010, on the possible drafting of a model European code of conduct for lending institutions to combat predatory lending techniques in co-operation with the Congress of Local and Regional Authorities and the private sector, with the overall aim to contribute to the effective implementation of Council of Europe Recommendation CM/Rec(2007)8 on legal solutions to debt problems.

In the field of implementation and monitoring of standards, 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 recommendations on the nationality of children, on principles concerning missing persons and the presumption of death, and on principles concerning continuing powers of attorney and advance directives for incapacity.

In co-operation and campaign activities, the CDCJ will contribute to raise awareness of its legal instruments through the available human and financial resources.

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

2 CDCJ website: www.coe.int/cdcj, CDCJ e-mail: cdcj@coe.int

3 0 votes against, 0 abstention, 33 votes in favour

    § Delegations which voted in favour of the draft Recommendation are: Albania, Armenia, Austria, Azerbaijan, Belgium, Bulgaria, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Malta, Moldova, Netherlands, Norway, Portugal, Romania, Russian Federation, Slovakia, Slovenia, Sweden, Turkey, Ukraine, United Kingdom.

4 0 votes against, 5 abstentions, 27 votes in favour

    § Abstentions: France, Georgia, Italy, Portugal, Russian Federation.
    § Delegations which voted in favour of the draft Recommendation are: Albania, Austria, Azerbaijan, Belgium, Bulgaria, Croatia, Czech Republic, Denmark, Estonia, Finland, Germany, Greece, Hungary, Ireland, Latvia, Malta, Moldova, Netherlands, Norway, Romania, Slovakia, Slovenia, Sweden, “The former Yugoslav Republic of Macedonia”, Turkey, Ukraine, United Kingdom.

5 0 votes against, 5 abstentions, 28 votes in favour

    § Abstentions: Denmark, Italy, Malta, Netherlands, Portugal.
    § Delegations which voted in favour of the draft Recommendation are: Albania, Armenia, Austria, Azerbaijan, Belgium, Bulgaria, Croatia, Czech Republic, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Latvia, Lithuania, Moldova, Norway, Romania, Russian Federation, Slovenia, Sweden, “The former Yugoslav Republic of Macedonia”, Turkey, Ukraine, United Kingdom.

6 Mr Milos HATAPKA (Slovakia) was elected as a Bureau member for two years in 2008.

7 1061st meeting of the Ministers’ Deputies (17 June 2009)

8 Paragraph 3 of the Recommendation states there are between 2.5 and 2.8 million IDPs in Council of Europe member states.

9 Written contribution by the Office of the Commissioner for Human Rights, document CommDH(2009)7, paragraph 7.

10 See replies adopted by the Committee of Ministers regarding the rights of lesbian, gay, bisexual and transgender (LGBT) persons: reply to Written Question No. 524 by Mrs Acketoft: “Ban on a Chişinau demonstration by homosexuals” (adopted on 7 November 2007 at the 1010th meeting of the Ministers’ Deputies), reply to Recommendation 211 (2007) of the Congress of Local and Regional Authorities of the Council of Europe on “Freedom of assembly and expression for lesbians, gays, bisexuals and transgender persons” (adopted on 16 January 2008 at the 1015th meeting of the Ministers’ Deputies), reply to Written Question No. 527 by Mr Huss: “Ban on a Moscow demonstration by lesbian, gay, bisexual and transgender persons in 2007” (adopted on 6 February 2008 at the 1017th meeting of the Ministers’ Deputies), reply to Written Question No. 540 by Mr Huss: “Denial of freedom of assembly and expression to lesbian, gay, bisexual and transgender persons in Lithuania” (adopted on 2 April 2008 at the 1023rd meeting of the Ministers' Deputies), and reply to Written Question No. 539 by Mr Hancock: “Laws discriminating against gay men in Gibraltar” (adopted on 23 April 2008 at the 1024th meeting of the Ministers' Deputies).


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