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CM(2009)37 13 March 20091
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1054 Meeting, 15 April 2009
4 Human Rights


4.2 Framework Convention for the Protection of National Minorities –

Proposal to modify Resolution (97) 10 with a view to allowing the publication of the Advisory Committee’s opinions 4 months after transmission of the opinion to the state concerned

Document prepared by the Secretariat of the Framework Convention for the Protection of National Minorities

Item prepared by the GR-H at its meeting on 10 March 2009

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1. The Secretariat recalls that the philosophy behind the proposed amendments of Resolution (97) 10 is to introduce a general rule according to which, in principle, the Advisory Committee's opinion and the state Party's comments on it would be made public simultaneously, 4 months after transmission of the opinion to the state Party concerned. The Secretariat wishes to recall that the modifications suggested only aim at improving this very particular aspect of the monitoring procedure and that it is by no means a question of re-examining the general operation of the mechanism, which has very largely given satisfaction up to now.

2. Publishing the results of the Advisory Committee's monitoring work more quickly would indeed do much to improve the transparency of the monitoring system and make for greater involvement of all the parties concerned, including civil society. This would be an answer to regular requests by representatives of civil society in the context of follow-up visits or other activities linked to the implementation of the Framework Convention.

3. The modification suggested would also consolidate the evolution noted in practice since several years as regards early publication. The secretariat indeed would remind the GR-H that a significant number of states Parties opt to publish the Advisory Committee's opinion early (in the second cycle of monitoring, no less than 18 states Parties have agreed to do so), either when they submit their comments on the opinion – as a rule four months after receiving it – or immediately on receipt of the opinion. This practice is very much welcomed by the Advisory Committee.

4. It should be noted that the proposal that Advisory Committee opinions should be made public four months after they are forwarded was mooted by the Chair of the Advisory Committee when he presented the Advisory Committee's 6th Activity Report to the Deputies on 9 July 2008. It was favourably received by the Deputies, who stressed the importance of having an effective monitoring system, while allowing a state Party to delay publication in exceptional circumstances. The proposal was also received with interest at the Conference held on 11 March 2008 to mark the 10th anniversary of the entry into force of the Framework Convention and the European Charter for Regional or Minority Languages as well as during the Conference on the impact of the Framework Convention held on 9-10 October in Strasbourg.

5. It is important to recall that the modifications suggested would, however, not prevent states which so wish from postponing the publication, thanks to a sufficiently flexible formulation. Indeed, the proposed modification implies that the state Party concerned could object to the publication of the opinion after 4 months provided it submits a formal and reasoned objection to the Secretariat. A state Party would thus preserve the right to plead special circumstances warranting a delay in the publication of the Advisory Committee's opinion. The Committee of Ministers would, in such a case, be informed of the reasoned objection but would not discuss it.

6. A second amendment to the initial draft text proposes that, in case a state Party has objected to the publication of the opinion after 4 months, the latter becomes public 12 months after transmission to the state Party concerned, irrespective of the adoption by the Committee of Ministers of its resolution on this state Party. The aim of this proposal is, again, to avoid that the Advisory Committee’s opinion becomes public too long after the beginning of the monitoring process. Nonetheless, according to the proposed revised text, should such a case arise, the Committee of Ministers would still have the possibility to postpone the publication of the opinion beyond 12 months. Thus, in any event, the final decision regarding publication remains with the Committee of Ministers.

7. Concern had been expressed that the publication of the opinion after 4 months would imply that the states Parties receive two sets of recommendations at a different time (from the Advisory Committee and from the Committee of Ministers), which might slightly differ in their content. The Secretariat wishes to recall that this is already the case under the current system in respect of states Parties which have agreed to early publication of the Advisory Committee’s opinion. It has not created specific difficulties in the countries concerned, all the more as the Committee of Ministers’ Resolutions have so far been consistent with the Advisory Committee’s recommendations. Moreover, the views of both the Advisory Committee and of the state Party concerned will be available at the same time as they are made public together.

8. Consequently, the revised paragraphs 26 and 27 of Resolution (97) 10 would read as follows:

    26. States Parties are entitled to submit written comments on the opinion of the Advisory Committee concerning them within 4 months of transmission of the opinion to the state Party.

    26bis The opinion of the Advisory Committee concerning the report of a state Party shall be made public:

        (a) on the authorisation of the state Party concerned (which authorisation may be given immediately upon transmission of the opinion to the state Party or at any time thereafter);
        (b) 4 months after transmission of the opinion to the state Party concerned, unless that state Party submits a reasoned objection in writing to the Secretariat;
        (c) at the same time as the conclusions and recommendations of the Committee of Ministers concerning the opinion, unless the Committee of Ministers decides otherwise; or
        (d) at the latest, 12 months after transmission of the opinion to the state Party concerned, unless the Committee of Ministers decides otherwise.

    27. The opinion of the Advisory Committee shall be made public together with any comments of the state Party concerned in relation to the opinion, unless the state Party concerned informs the Secretariat in writing that it does not wish the comments to be made public.

9. The revised procedure will only apply to opinions adopted after the entry into force of the revision to Resolution (97) 10.

Note: a decision of the Committee of Ministers or Ministers’ Deputies not to make public an opinion under para. 26(c) or (d) would require a two-thirds majority of the representatives/Deputies casting a vote and a majority of the representatives/Deputies entitled to vote, unless the Committee/the Deputies decided by the same majority it was necessary to take the decision unanimously on account of its importance (see Article 20, Statute of the Council of Europe; and Articles 9 and 10(3) of the Rules of Procedure of Ministers’ Deputies).

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Comparative table

Stages of the monitoring system under Resolution (97) 10 and Resolution (97) 10 as amended

Main stages of the monitoring
of the Framework Convention
as it stands now

Main stages of the monitoring
of the Framework Convention
following the proposed modification
of Resolution (97) 10

Presentation of the state Report

Presentation of the state Report

Preparation and adoption of the Advisory Committee’s opinion based on the state Report

Preparation and adoption of the Advisory Committee’s opinion based on the state Report

Transmission of the Advisory Committee’s opinion to the state Party concerned

Transmission of the Advisory Committee’s opinion to the state Party concerned

Presentation of the state Party’s comments as a rule 4 months after transmission of the opinion.

Presentation of the state Party’s comments as a rule 4 months after transmission of the opinion.

 

4 months after transmission of the opinion: deadline for the transmission of the state Party’s comments.
Publication of the opinion, unless formal and reasoned objection is provided
Publication of the state Party’s comments (if available) , unless formal and reasoned objection is provided

Discussion by the GR-H of the opinion and the state Party’s comments

Discussion by the GR-H of the opinion and the state Party’s comments

Adoption by the Committee of Ministers of a Resolution :

Publication of the opinion, the state Party’s comments and the Committee of Ministers’ Resolution on the day of the adoption of the Resolution, unless the Committee of Ministers decides otherwise

Adoption by the Committee of Ministers of a Resolution:

Publication of the opinion, the state Party’s comments and the Committee of Ministers’ Resolution on the day of the adoption of the Resolution, unless published after 4 months and unless the Committee of Ministers decides otherwise

 

12 months after transmission of the opinion (in case the Committee of Ministers Resolution is not adopted):
Publication of the Opinion and of the state Party’s comments, unless the Committee of Ministers decides otherwise

Appendix

Draft Resolution CM/Res(2009)…
amending Resolution (97)10
on the monitoring arrangements under Articles 24-26
of the Framework Convention for the protection of National Minorities

(Adopted by the Committee of Ministers on … 2009,
at the … meeting of the Ministers’ Deputies)

The Committee of Ministers,

Having regard to the Framework Convention for the Protection of National Minorities (CETS No. 157, which entered into force on 1 February 1998;

Having regard also to Resolution (97) 10 of the Committee of Ministers on the monitoring arrangements under Articles 24-26 of the Framework Convention for the Protection of National Minorities;

Considering that, after more than 10 years of operation of the Framework Convention and the Resolution, certain procedural modifications are needed, to accord with developments in practice and to promote a more transparent monitoring process following the adoption of the Opinions of the Advisory Committee;

Recalling in this respect the decision adopted in June 2001 (756th meeting of the Ministers’ Deputies), interpreting Resolution (97) 10 so as to allow states Parties to make opinions and state comments public earlier, without prejudice to the adoption of the Committee of Ministers’ resolution,

Decides as follows:

to modify paragraphs 26 and 27 to the text of Resolution(97)10 and to include a new paragraph 26bis, as follows:

    “26. States Parties are entitled to submit written comments on the opinion of the Advisory Committee concerning them within 4 months of transmission of the opinion to the state Party.

    26bis The opinion of the Advisory Committee concerning the report of a state Party shall be made public:

      (a) on the authorisation of the state Party concerned (which authorisation may be given immediately upon transmission of the opinion to the state Party or at any time thereafter);
      (b) 4 months after transmission of the opinion to the state Party concerned, unless that state Party submits a reasoned objection in writing to the Secretariat;
      (c) at the same time as the conclusions and recommendations of the Committee of Ministers concerning the opinion, unless the Committee of Ministers decides otherwise; or
      (d) at the latest, 12 months after transmission of the opinion to the state Party concerned, unless the Committee of Ministers decides otherwise.

    27. The opinion of the Advisory Committee shall be made public together with any comments of the state Party concerned in relation to the opinion, unless the state Party concerned informs the Secretariat in writing that it does not wish the comments to be made public.”

Note 1 This document has been classified restricted at the date of issue; it will be declassified in accordance with Resolution Res(2001)6 on access to Council of Europe documents..


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