Ministers’ Deputies

CM Documents

CM(2009)51 27 May 20091

_________________________

1062 Meeting, 1 July 2009

4 Human rights

4.5 Steering Committee for Human Rights (CDDH)

a. Abridged report of the 68th meeting (Strasbourg, 24-27 March 2009)

b. Guaranteeing the long-term effectiveness of the control system of the European Convention on Human Rights2

    i. CDDH final opinion on putting into practice certain procedures envisaged to increase the Court’s case-processing capacity

    ii. Activity report “Guaranteeing the long-term effectiveness of the control system of the European Convention on Human Rights”

c. Request for creation of terms of reference for two bodies answerable to the CDDH3

d. Draft Committee of Ministers’ Declaration on human rights in culturally diverse societies

e. Draft Guidelines on human rights protection in the context of accelerated asylum procedures

Item to be prepared by the GR-H at its meeting of 18 June 2009

_________________________

BRIEF FOREWORD

1. The Steering Committee for Human Rights (CDDH) held its 68th meeting in Strasbourg from 24 to 27 March 2009. The agenda appears at Appendix 1.

2. The Committee of Ministers is invited:

a. to take note of the CDDH’s opinion on Parliamentary Assembly Recommendation 1809 (2007) and Resolution 1571 (2007) – Member states’ duty to cooperate with the European Court of Human Rights (Appendix 2);

b. to take note of the CDDH’s Final Opinion on the question of putting into practice certain procedures envisaged to increase the Court’s case-processing capacity and of its Activity Report on “guaranteeing the long-term effectiveness of the control system of the ECHR” (CM(2009)51 add final);2

c. to take note of the illustrative texts, as prepared by the Secretariat and appended by the CDDH to its meeting report, for a possible agreement on provisional application of certain provisions of Protocol No. 14 ECHR and a possible Protocol No. 14 bis ECHR (DD(2009)156);2

d. to authorise the creation of the Committee of Experts on reform of the Court (DH-GDR) and the Committee of Experts on effective remedies for excessive length of proceedings (DH-RE),3 it being understood that its previous proposal for the possible creation of a committee on a Statute for the Court would then be postponed (CM(2009)51 add2 rev);

e. to examine, with a view to its adoption, the draft Committee of Ministers’ Declaration on human rights in culturally diverse societies (Appendix 3);

f. to examine, with a view to their adoption, the draft Guidelines on human rights protection in the context of accelerated asylum procedures (Appendix 4), and to take note of the Explanatory Memorandum thereto (CM(2009)51 add3).

Appendix 1

Agenda

1. Opening of the meeting, adoption of the agenda and order of business

2. Exchange of views with invited key figures

3. Current activities

    3.1 Final Opinion of the CDDH on putting into practice certain procedures envisaged to increase the case-processing capacity of the Court

    3.2 Activity Report on “Guaranteeing the long-term effectiveness of the control system of the ECHR”

    3.3 Improvement of procedures (DH-PR)

    3.4 Development of human rights (DH-DEV)

    3.5 Armed forces (DH-DEV-FA)

    3.6 Discrimination on the grounds of sexual orientation and gender identity (DH-LGBT)

    3.7 Impunity (DH-I)

    3.8 National minorities (DH-MIN)

    3.9 Accelerated asylum procedures (GT-DH-AS)

4. Future activities

    4.1 29th Conference of Council of Europe Ministers of Justice (Tromsø, Norway, 17-19 June 2009)

    4.2 Possible accession of the European Communities/ European Union to the ECHR

    4.3 Possible preparation of a European Ministerial Conference on Human Rights (4 November 2010)

    4.4 Child-friendly Justice

5. Developments in the area of social rights

6. Experts representing the CDDH in other bodies

7. Guests to be invited to future meetings

8. Calendar of meetings

9. Other business

Appendix 2

CDDH opinion on Parliamentary Assembly Recommendation 1809 (2007) and Resolution 1571 (2007) – Council of Europe member states’ duty to co-operate with the European Court of Human Rights

(adopted by the CDDH at its 68th meeting, 24-27 March 2009)

1. The Steering Committee for Human Rights (CDDH) concurs entirely with the Assembly that whilst states generally co-operate well with the Court, it is a matter of grave concern that isolated cases persist of interference with applicants, their families and their lawyers and other representatives.

2. The CDDH agrees fully with the Assembly’s conclusion that “the right of individuals to apply to the Court is a central element of the human rights protection mechanism in Europe and must be protected from interference at all levels.” It strongly supports the philosophy running through the Assembly’s report and adopted texts and shares the Ministers Deputies’ conclusion that the issues raised are of great importance for the effectiveness of the European system of human rights protection.4

3. All states parties to the Convention have undertaken not to hinder in any way the effective exercise of this right (Article 34 of the Convention). Furthermore, the Court’s case-law has now clearly established that all states parties are obliged to comply with an order of interim measures made under Rule 39 of the Rules of Court and that non-compliance may imply a violation of Article 34.5

4. In particular, the CDDH would underline the Assembly’s recommendations to member states made in paragraphs 17.2 and 17.3 of Resolution 1571 (2007). These duties to protect and to investigate reflect states’ basic positive obligations that are an essential characteristic of the Convention system as a whole.

5. As regards the question posed by the Ministers’ Deputies concerning the advisability of drawing up a recommendation to member states along the lines proposed by the Assembly, the CDDH is of the opinion that such a course of action would not be appropriate at present. It suggests that the Deputies, by means of a Resolution, echo the worries expressed by the Assembly in particular in paras. 17.2 and 17.3 of the aforementioned Resolution. Finally, it considers that the issue of Rule 39 of the Rules of Court, including the question of its status, should be examined in detail in the context of future work on a Statute for the Court.

Appendix 3

Draft Declaration by the Committee of Ministers

on Human rights in culturally diverse societies

(adopted by the Committee of Ministers on … 2009

at the … meeting of the Ministers’ Deputies)

The Committee of Ministers of the Council of Europe,

Noting the existence of culturally diverse societies in Europe and underlining that diversity is a source of enrichment;

Recalling the principle of equal dignity of all human beings from which derives the principle of equal enjoyment of human rights by all members of society;

Reaffirming that all human rights are universal, indivisible, interdependent and interrelated;

Being convinced that the existing international human rights standards provide a solid common basis for social cohesion and the peaceful and harmonious development of societies;

Recalling that pluralism and social cohesion are essential elements for our democratic societies; they are built on the genuine recognition of and respect for diversity and fair treatment for everybody;

Recalling that diversity calls for tolerance and non discrimination, and that it cannot be invoked to justify human rights infringements;

Recognising the importance of intercultural dialogue and taking into account the Council of Europe’s White Paper on Intercultural Dialogue (May 2008);

Underlining that human rights are an essential basis for policies and action of public authorities as well as a common value basis for relations between individuals and between groups in socially inclusive societies;

Underlining that living in a democratic society entails rights and duties for all its members;

Stresses the obligation for member States, as the ultimate guarantors of the principle of pluralism, to secure everyone’s effective enjoyment of human rights, especially those enshrined in the European Convention on Human Rights, and that the respect of this obligation is of particular importance towards those who are more vulnerable to discrimination;

Emphasises that, in order to reconcile respect for different identities with social cohesion and avoid isolation and alienation of certain groups, it is indispensable to regard respect for human rights and fundamental freedoms as a common basis for all: no cultural, religious or other practices or traditions can be invoked to prevent any individual from exercising his or her basic rights or from participating actively in the society, nor shall anyone’s rights be unduly restricted on account of their religious or cultural practices;

Calls on opinion leaders, including political leaders, to speak and act resolutely in such a way as to foster a climate of respect through dialogue based on a common understanding of universally recognised human rights, and calls on member States to adopt practical measures to that effect, such as promoting education as a key to dialogue and mutual understanding, and supporting social inclusion, notably with respect to participation in the decision-making process;

Emphasises that the preservation and promotion of a democratic society based on respect for diversity requires resolute action against all forms of discrimination. Racial and xenophobic violence is a particular affront to human dignity, and requires special vigilance and a vigorous reaction from public authorities;

Recalls that the prohibition of discrimination may be accompanied by appropriate measures, such as through action plans, support programmes or any other government action, to ensure the realisation of the human rights of all;

Recalls that freedom of expression, freedom of assembly and association, and freedom of thought, conscience and religion are among the foundations of democratic societies and are instrumental for the pluralism which characterises them. These rights are closely interrelated and equally fundamental in a democratic society;

Draws particular attention to the fact that freedom of expression constitutes one of the essential conditions for the progress of society and for the development of every human being, including in the context of culturally diverse societies. Freedom of expression applies not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the state or any sector of the population. At the same time, the exercise of freedom of expression is not without any duties and responsibilities, and if it involves in particular incitement to hatred and violence, it will not be protected;

Underlines that when freedom of expression, freedom of assembly and association, and freedom of thought, conscience and religion are at stake, States must strive to strike a fair balance between them, while ensuring that any restriction be prescribed by law, necessary in a democratic society and proportionate to a legitimate aim.

Appendix 4

Draft guidelines on human rights protection

in the context of accelerated asylum procedures

(adopted by the Committee of Ministers on … 2009

at the … meeting of the Ministers’ Deputies)

The Committee of Ministers,

Reaffirming that asylum seekers enjoy the guarantees set out in the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5) in the same way as any other person within the jurisdiction of states parties, in accordance with Article 1 of the Convention;

Bearing in mind notably Article 14 of the 1948 Universal Declaration of Human Rights and reaffirming the obligation of states, whatever asylum procedure they use, to comply with the international and European standards in this field, such as the right to seek and enjoy asylum;

Recalling the relevant case law of the European Court of Human Rights and the relevant decisions of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and the United Nations Committee Against Torture (CAT);

Recalling the importance of full and effective implementation of the 1951 Geneva Convention relating to the Status of Refugees (“Geneva Convention”) and the 1967 New York Protocol to this convention, and the obligations of states under these instruments, in particular Article 33.1 regarding the prohibition of refoulement, according to which “no Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”;

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

Recalling recommendations adopted by the Committee of Ministers and the Parliamentary Assembly of the Council of Europe in the field of asylum procedures, notably:

– Recommendation No. R (97) 22 of the Committee of Ministers containing guidelines on the application of the safe third country concept;

– Recommendation No. R (98) 13 of the Committee of Ministers on the right of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of Article 3 of the European Convention on Human Rights;

– Recommendation Rec(2003)5 of the Committee of Ministers on measures of detention of asylum seekers; and

– Recommendation 1327 (1997) of the Parliamentary Assembly on the protection and reinforcement of the human rights of refugees and asylum seekers in Europe;

Referring specifically to:

– Resolution 1471 (2005) of the Parliamentary Assembly on accelerated asylum procedures in Council of Europe member states;

– Recommendation 1727 (2005) on accelerated asylum procedures in Council of Europe member states; and the related report by the Committee on Migration, Refugees and Population of the Parliamentary Assembly of the Council of Europe (Doc. 10655);

Recalling European Union legislation, particularly:

– Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers;

– Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in member states for granting and withdrawing refugee status;

– Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted; and

– Council Regulation No. 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the member state responsible for examining an asylum application lodged in one of the member states by a third country national (“Dublin Regulation”).

1. Adopts the attached guidelines and invites member states to ensure that they are widely disseminated amongst all national authorities involved in the implementation of the various stages of accelerated procedures, including those responsible for the return of aliens;

2. Notes that none of the guidelines imply any new obligations for Council of Europe member states.6

I. Definition and scope

1. An accelerated asylum procedure is one that derogates from normally applicable procedural time scales and/or procedural guarantees with a view to expediting decision making.

2. Procedures whereby a state may declare an application inadmissible without considering the merits of the claim also fall mutatis mutandis within the scope of the guidelines.

II. Principles

1. States should only apply accelerated asylum procedures in clearly defined circumstances and in compliance with national law and their international obligations.

2. Asylum seekers have the right to an individual and fair examination of their applications by the competent authorities.

3. When procedures as defined in Guideline I are applied, the state concerned is required to ensure that the principle of non-refoulement is effectively respected.

III. Vulnerable persons and complex cases

1. The vulnerability of certain categories of persons such as unaccompanied and/or separated minors/children, victims of torture, sexual violence or human trafficking and persons with mental and/or physical disabilities should be duly taken into account when deciding whether to apply accelerated asylum procedures. In the case of children, their best interests are paramount.

2. International human rights obligations as regards the rights of specific vulnerable groups shall be duly taken into account when applying accelerated asylum procedures and in the manner of application.

3. When it becomes apparent that a case is particularly complex and that this complexity falls to be addressed by the state where the application was lodged, it should be excluded from the accelerated procedure.

IV. Procedural guarantees

1. When accelerated asylum procedures are applied, asylum seekers should enjoy the following minimum procedural guarantees:

a. the right to lodge an asylum application with state authorities, including but not limited to, at borders or in detention;

b. the right to be registered as asylum seekers in any location within the territory of the state designated for this purpose by the competent authorities;

c. the right to be informed explicitly and without delay, in a language which he/she understands, of the different stages of the procedure being applied to him/her, of his/her rights and duties as well as remedies available to him/her;

d. the right, as a rule, to an individual interview in a language which he/she understands where the merits of the claim are being considered and, in cases referred to in Guideline I.2, the right to be heard on the grounds of admissibility;

e. the right to submit documents and other evidence in support of the claim and to provide an explanation for absence of documentation, if applicable;

f. the right to access legal advice and assistance, it being understood that legal aid should be provided according to national law;

g. the right to receive a reasoned decision in writing on the outcome of the proceedings.

2. Authorities shall take action to ensure that a representative of the interests of a separated or unaccompanied minor is appointed throughout the whole proceedings.

3. Authorities shall respect the confidentiality of all aspects of an asylum application, including the fact that the asylum seeker has made such an application, in as much as it may jeopardise protection of the asylum seeker or the liberty and security of his/her family members still living in the country of origin. Information on the asylum application as such which may thus jeopardise protection shall not be disclosed to the country of origin.

V. The safe country of origin concept

1. The examination of the merits of the asylum application shall be based on the asylum seeker’s individual situation and not solely on general analysis and evaluation of a given country.

2. The fact that the asylum seeker comes from a safe country of origin shall be only one element among others to be taken into account in reaching a decision on the merits of the claim.

3. The safe country of origin concept shall be used with due diligence, in accordance with sufficiently specific criteria for considering a country of origin as safe. Up-to-date information is needed from a variety of reliable and objective sources, which should be analysed.

4. All asylum seekers shall be given an effective opportunity to rebut the presumption of safety of their country of origin.

VI. The safe third country concept

1. The following criteria must be satisfied when applying the safe third country concept:

a. the third country has ratified and implemented the Geneva Convention and the 1967 Protocol relating to the Status of Refugees or equivalent legal standards and other relevant international treaties in the human rights field;

b. the principle of non-refoulement is effectively respected;

c. the asylum seeker concerned has access, in law and in practice, to a full and fair asylum procedure in the third country with a view to determining his/her need for international protection; and

d. the third country will admit the asylum seeker.

2. All asylum seekers shall be given an effective opportunity to rebut the presumption of safety of the third country.

3. Application of the safe third country concept does not relieve a state of its obligations under Article 3 of the European Convention on Human Rights prohibiting torture and inhuman or degrading treatment or punishment.

VII. Non-refoulement and return

1. The state receiving an asylum application is required to ensure that return of the asylum seeker to his/her country of origin or any other country will not expose him/her to a real risk of the death penalty, torture or inhuman or degrading treatment or punishment, persecution, or serious violation of other fundamental rights which would, under international or national law, justify granting protection.

2. In all cases, the return must be enforced with respect for the integrity and human dignity of the person concerned, excluding any torture or inhuman or degrading treatment or punishment.

3. Collective expulsion of aliens is prohibited.

VIII. Quality of the decision-making process

1. Throughout the proceedings, decisions should be taken with due diligence.

2. Officials responsible for examining and taking decisions on asylum applications should receive appropriate training, including on applicable international standards. They should also have access to the requisite information and research sources to carry out their task, taking into account the cultural background, ethnicity, gender and age of the persons concerned and the situation of vulnerable persons.

3. Where the assistance of an interpreter is necessary, states should ensure that interpretation is provided to the standards necessary to guarantee the quality of the decision making.

IX. Time for submitting and considering asylum applications

1. Asylum seekers shall have a reasonable time to lodge their application.

2. The time taken for considering an application shall be sufficient to allow a full and fair examination, with due respect to the minimum procedural guarantees to be afforded to the applicant.

3. The time should not however be so lengthy as to undermine the expediency of the accelerated procedure, in particular when an asylum seeker is detained.

X. Right to effective and suspensive remedies

1. Asylum seekers whose applications are rejected shall have the right to have the decision reviewed by a means constituting an effective remedy.

2. Where asylum seekers submit an arguable claim that the execution of a removal decision could lead to a real risk of persecution or the death penalty, torture or inhuman or degrading treatment or punishment, the remedy against the removal decision shall have suspensive effect.

XI. Detention

1. Detention of asylum seekers should be the exception.

2. Children, including unaccompanied minors, should, as a rule, not be placed in detention. In those exceptional cases where children are detained, they should be provided with special supervision and assistance.

3. In those cases where other vulnerable persons are detained they should be provided with adequate assistance and support.

4. Asylum seekers may only be deprived of their liberty if this is in accordance with a procedure prescribed by law and if, after a careful examination of the necessity of deprivation of liberty in each individual case, the authorities of the state in which the asylum application is lodged have concluded that the presence of the asylum seekers for the purpose of carrying out the accelerated procedure cannot be ensured as effectively by another, less coercive measure.

5. Detained asylum seekers shall be informed promptly, in a language which they understand, of the legal and factual reasons for their detention, and the available remedies. They should be given the immediate possibility of contacting a person of their own choice to inform him/her about their situation, as well as availing themselves of the services of a lawyer and a doctor.

6. Detained asylum seekers shall have ready access to an effective remedy against the decision to detain them, including legal assistance.

7. Detained asylum seekers should normally be accommodated within the shortest possible time in facilities specifically designated for that purpose, offering material conditions and a regime appropriate to their legal and factual situation and staffed by suitably qualified personnel. Detained families should be provided with separate accommodation guaranteeing adequate privacy.

XII. Social and medical assistance

Asylum seekers shall be provided with necessary social and medical assistance, including emergency treatment.

XIII. Protection of private and family life

Asylum seekers and their family members within the state’s jurisdiction are entitled to respect for their private and family life at all stages of the accelerated asylum procedure in accordance with Article 8 of the European Convention on Human Rights. Whenever possible, family unity should be guaranteed.

XIV. Role of the United Nations High Commissioner for Refugees (UNHCR)

Even when accelerated asylum procedures are applied, member states shall allow the UNHCR to:

a. have access to asylum seekers, including those in detention and border zones such as airport or port transit zones;

b. have access to information on individual applications for asylum, on the course of the procedure and on the decisions taken, as well as to person-specific information, provided that the asylum seeker agrees thereto;

c. present its views, in the exercise of its supervisory responsibilities under Article 35 of the Geneva Convention, to any competent authorities regarding individual applications for asylum at any stage of the procedure.

XV. Increased protection

Nothing in these guidelines should restrain the states from adopting more favourable measures and treatment than described in these guidelines.

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

2 This item was examined at the 1056th meeting of the Ministers’ Deputies (6-7 May 2009) (see decision CM/Del/Dec(2009)1056/4.1a).

3 The terms of reference of DH-RE were adopted at the 1055th meeting of the Ministers’ Deputies (22-23 April 2009) (see decision CM/Del/Dec(2009)1055/4.4c). The terms of reference of DH-GDR were adopted at the 1056th meeting of the Ministers’ Deputies (6-7 May 2009) (see decision CM/Del/Dec(2009)1056/4.1b).

4 See doc. CM/Del/Dec(2007)1009/3.1a para. 4, 24 October 2007.

5 See e.g. Mamatkoulov & Askarov v. Turkey, applications Nos 46827/99 & 49651/99, judgment of 4 February 2005, para. 129 ; Paladi v. Moldova, application No. 39806/05, judgment of 10 July 2007, para. 96.

6 When the guidelines make use of the verb “shall” this indicates only that the obligatory character of the norms corresponds to already existing obligations of member states. In certain cases however, the guidelines go beyond the simple reiteration of existing binding norms. This is indicated by the use of the verb “should” to indicate where the guidelines constitute recommendations addressed to the member states.



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