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CM(2010)147add3finalE  / 25 November 2010 

Ministers’ Deputies
CM Documents

CM(2010)147       21 October 20101

1098 Meeting, 17 November 2010
10 Legal questions

10.2 European Committee on Legal Co-operation (CDCJ)2
a. Abridged report of the 85th plenary meeting (Strasbourg, 11-14 October 2010)
b. Draft Recommendation CM/Rec(2010)… of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, and its Explanatory Memorandum
c. Draft Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice, and their Explanatory Memorandum
d. Draft Recommendation CM/Rec(2010)… of the Committee of Ministers to member states on the protection of individuals with regard to automatic processing of personal data in the context of profiling, and its Explanatory Memorandum

Item to be prepared by the GR-J at its meeting of 16 November 2010

BRIEF FOREWORD

1. The European Committee on Legal Co-operation (CDCJ), chaired by Mr Seamus Carroll (Ireland), met in Strasbourg on 11-14 October 2010. The agenda, as adopted by the Committee, appears in Appendix I and the list of participants3 can be obtained from the Secretariat.

ITEMS SUBMITTED TO THE COMMITTEE OF MINISTERS FOR DECISION

2. The CDCJ invited the Committee of Ministers to adopt:

a. the draft Recommendation on judges: independence, efficiency and responsibilities (see Appendix II) and take note of its Explanatory Memorandum (see document CM(2010)147 add1);

b. the draft Guidelines on child friendly justice (see Appendix III) and take note of their Explanatory Memorandum (see document CM(2010)147 add2);

c. the draft Recommendation on the protection of individuals with regard to automatic processing of personal data in the context of profiling (see Appendix IV) and take note of its Explanatory Memorandum (see document CM(2010)147 add3);

d. the draft terms of reference of the European Committee on Legal Co-operation (CDCJ) for 2011 (see Appendix V);4

e. the draft terms of reference of the Committee of Experts on Family law (CJ-FA) for 2011 (see Appendix VI);4

f. the draft terms of reference of the Group of Specialists on the role of Public Prosecutors outside the Criminal Field (CJ-S-PR) for 2011 (see Appendix VII);4

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 Action Plan for 2011 (see Appendix VIII) while regretting that due to budgetary restrictions it will not be possible to continue some important work in 2011, for example further work on nationality and rule of law issues, and expressing the hope that it will be able to return to these topics on which the Council of Europe, through the CDCJ, can continue to play a unique and important role in the future;

b. the present report as a whole.

LIST OF DECISIONS

At its 85th 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 (6-9 October 2009) and which are of direct concern for the CDCJ, as well as of the compilation of Opinions of the CDCJ given since (respectively documents CDCJ (2010) 2 and CDCJ (2010) 3);

5. took note of the overview of the survey of Intergovernmental Committees whose terms of reference expire in 2010 among which is the CDCJ;

Draft legal instruments

6. examined and approved5, taking note of the comments received, the draft Recommendation on judges: independence, efficiency and responsibilities and took note of its Explanatory Memorandum;

7. examined and approved6, taking note of the comments received, the draft Guidelines on Child-friendly Justice, after having taken a final decision concerning the legal nature of the draft text, and took note of their Explanatory Memorandum;

8. examined and approved7, taking note of the comments received, in particular those of the Steering Committee on the Media and New Communication Services (CDMC) as well as those of the private sector and civil society, the draft Recommendation on the protection of individuals with regard to automatic processing of personal data in the context of profiling and took note of its Explanatory Memorandum;

9. instructed the Secretariat of the CDCJ to send the three draft texts to the Secretariat of the Committee of Ministers with a view to their examination and possible adoption by the Committee of Ministers at the 1098th meeting of the Ministers’ Deputies (17 November 2010);

Draft Opinions

10. approved its Opinions on Parliamentary Assembly Recommendations 1920 (2010) – “Reinforcing the effectiveness of Council of Europe treaty law” and 1925 (2010) – “Readmission agreements: a mechanism for returning irregular migrants” and 1926 (2010) – “Voluntary return programmes: an effective, humane and cost-effective mechanism for returning irregular migrants” (see Appendices IX and X) and instructed the Secretariat of the CDCJ to send them to the Secretariat of the Committee of Ministers within the set deadlines (respectively 15 October and 31 October 2010);

Future work of the CDCJ and its subordinate bodies

Priorities of the CDCJ

11. approved its Draft Terms of Reference for 2011 (see Appendix V) which include a reference to activities in the fields of administrative law and nationality, although they are suspended for 2011, in order to highlight the importance of continuing work in these fields;

12. adopted its Action Plan for 2011 (see Appendix VIII) and decided to entrust its Bureau with the task of following the implementation of the corresponding work;

Working methods

13. postponed the examination of the item on working methods (linked to the overview of the survey of Intergovernmental Committees whose terms of reference expire in 2010, among which is the CDCJ);

Family law

14. took note of:

- the progress in the work in the field of family law as carried out by the Working Group of the Committee of Experts on Family law (CJ-FA) dealing with the drafting of a recommendation on the rights and legal status of children and parental responsibilities (CJ-FA-GT3) and approved the draft terms of reference of the CJ-FA for 2011 (see Appendix VI), regretting the limited composition of this Committee of Experts in 2011;

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

15. urged its delegations to follow carefully the work carried out by the CJ-FA as they will be involved in a transparent process of consultation on the draft recommendation and its explanatory memorandum and therefore not to wait until their finalisation foreseen next year before submitting comments, in order to avoid fundamental difficulties during the next Plenary meeting, and took note of the intention of the Steering Committee on Bioethics (CDBI) to present comments on the draft recommendation;

Child-friendly justice

16. welcomed the presentation made by the Thematic Co-ordinator on Children (TC-ENF), Ms Irma Ertman, Ambassador, Permanent Representative of Finland to the Council of Europe;

17. took note of the work carried out by the Group of Specialists on child-friendly justice (CJ-S-CH) in 2009 and 2010 (document CJ-S-CH (2010) 16);

18. welcomed the child-friendly version of the report on the consultation of children and young people, carried out in the framework of the elaboration of the draft Guidelines, entitled “Children and the justice system: what you told us” (document CJ-S-CH(2010)15) which has been made available;

Discrimination on grounds of sexual orientation or gender identity

19. took note of recent and significant Council of Europe developments in this field, in particular the adoption of Recommendation CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity, and of the reflection carried out by the CDCJ Bureau on this issue, in particular on possible future activities of the CDCJ in this field, including possible participation in three round tables to be organised in 2011 by the Office of the Human Rights Commissioner in co-operation with the European Union Fundamental Rights Agency (FRA) as well as the updating of the publication on “Transsexualism in Europe” issued in 2000 in co-operation with the International Commission on the Civil Status (ICCS);

Independence of the judiciary

20. took note of the work carried out by the Group of Specialists on the Judiciary (CJ-S-JUD) in 2009 (document CJ-S-JUD (2009) 16);

21. took note of paragraph 7 of the Opinion of the Bureau of the CDCJ on Parliamentary Assembly Recommendation 1896 (2010) on “Judicial corruption” referring to the elaboration of a code of judicial ethics;

Administrative law

22. expressed concern about the suspension in 2011 of activities in the field of administrative law;

23. endorsed the report prepared by Mr Erik Wennerström, entitled “The Council of Europe and the Rule of Law: Implementation of the Recommendation CM/Rec(2007)7 on good administration, in the field of civil registration” (document CDCJ (2010) 28 – in English only) and authorised its publication;

24. endorsed the report prepared by the Istituto Di Ricerche Sulla Pubblica Amministrazione (IRPA), entitled “Council of Europe’s instruments on mutual assistance in administrative matters: techniques, shortcomings and possible improvements”, which evaluates the Council of Europe’s existing instruments in that field, in particular the European Convention on the Service Abroad of Documents relating to Administrative Matters (ETS No. 94) and the European Convention on the Obtaining Abroad of Information and Evidence in Administrative Matters (ETS No. 100) (document CDCJ (2010) 29 – in English only) and authorised its publication;

25. took note of the progress made on the revision work of the Handbook: “The Administration and you”, entrusted to the Folke Bernadotte Academy (Sweden);

Role of Prosecutors outside the Criminal Law Field

26. took note of the Joint Opinion of the Consultative Council of European Judges (CCJE) and the Consultative Council of European Prosecutors (CCPE) on the relationships between judges and prosecutors, as well as of the related Opinion of the European Committee on Crime Problems (CDPC);

27. discussed the follow-up to be given to Opinion No. 3 (2008) of the CCPE on “the role of prosecution services outside the criminal law field” (document CDCJ (2010) 16) and, agreeing on the need for standard-setting on this point, approved the draft terms of reference of the Group of Specialists on the role of Public Prosecutors outside the Criminal Field (CJ-S-PR) for 2011 (see Appendix VII);

Access to justice for migrants and asylum seekers

28. took note of the information provided by the Secretariat on developments on this issue, and in particular of the postponement of the examination of the terms of reference of the Group of Specialists on access to justice for migrants and asylum-seekers (CJ-S-MG) by the Committee of Ministers’ Rapporteur Group on Legal Co-operation (GR-J), and underlined the importance of providing follow-up to Resolution No. 1 on access to justice for migrants and asylum seekers adopted by the Council of Europe Ministers of Justice at their 28th Conference held in Lanzarote (Spain) on 25-26 October 2007;

Non-governmental Organisations

29. took note of the document concerning the case law of the European Court of Human Rights (document CDCJ (2010) 12) as well as the transmission to the Committee of Ministers of the reply of the CDCJ on the evaluation of the implementation of Recommendation CM/Rec(2007)14 on the legal status of non governmental organisations in Europe (document CDCJ (2010) 5 Mos) and welcomed the participation of Mr Cyril Ritchie, President of the Expert Council on NGO law, as the representative of the Conference of INGOs, who in his speech underlined the need to broaden the implementation of the above recommendation in the coming years and in due course further evaluate this implementation;

Other developments of concern for the CDCJ

30. took note of the reports presented by the representative of the CDCJ to EuroDIG (European Dialogue on internet governance) – (Madrid, Spain, 29-30 April 2010) and to IGF (Internet Governance Forum) – (Vilnius, Lithuania, 14-17 September 2010), and underlined the importance of the issues raised during those events as well as the role of the Council of Europe in that respect;

Information technology and Data protection

31. took note of the work foreseen in 2011 on the modernisation of Convention CETS No. 108 and stressed the necessity for the CDCJ to be involved in that work;

Operation and evaluation of instruments of the CDCJ

32. 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;

33. took note of the Memoranda on targeted conventions (intellectual property and patent, liability; and commercial and financial law) (respectively documents CDCJ(2010)8 rev and CDCJ(2010)18);

34. took note of the chart of signatures of the Protocol amending the Convention on Mutual Administrative Assistance in Tax Matters (CETS No. 208), that the Council of Europe’s Ad hoc Committee for the revision of the Convention on Mutual Assistance in Tax Matters (CAHTAX) prepared jointly with the Organisation for Economic Co-operation and Development (OECD)8;

35. decided to wait for the outcome of the work entrusted by the Secretary General, as one of his priorities for 2011, to the Treaty Office of the Council of Europe;

Conventional committees

36. took note of the fact that, due to budgetary constraints and heavy workload, the Standing Committee of the Convention on the exercise of children's rights (T-ED) and the Convention Committee on the Custody Convention (T-CC) did not meet in 2010 and that no request has been formulated to convene the Multilateral Committee on the European Agreement on the transmission of Applications for Legal Aid (T-TA);

37. took note of the abridged Report of the 26th Plenary meeting of the Consultative Committee of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (T-PD) (1-4 June 2010) and of the 20th meeting of the Bureau of the T-PD (2-4 March 2010);

Other committees

38. took note of the reports presented by the Representatives of the CDCJ to other Council of Europe bodies which are of direct concern for the CDCJ, namely the Consultative Council of European Judges (CCJE), the European Commission for the Efficiency of Justice (CEPEJ), the Committee of Experts on Terrorism (CODEXTER), the Steering Committee on Bioethics (CDBI), the Consultative Council of European Prosecutors (CCPE) and the Ad hoc Committee on preventing and combating violence against women and domestic violence (CAHVIO) (cf. document CDCJ(2010)9);

39. underlined the importance for the CDCJ to continue to make known its views on certain remaining legal issues of the draft convention being prepared by the CAHVIO and to examine the draft explanatory report once available;

40. dealt with the reply to be given to the Committee of Ministers (in accordance with its decision of 7 July 2010 - 1090th meeting) concerning the synoptic and analytical report on the questionnaire on “false identity information as a challenge to immigration authorities” prepared by the CODEXTER and instructed the Secretariat to prepare a reply underlining the importance of dealing with data protection with regard to the issue of processing identity data, which will be submitted to the CDCJ delegations for approval by a written procedure, with a view to transmitting it to the Committee of Ministers within the set deadline (31 December 2010);

Ministerial Conferences

30th Council of Europe Conference of Ministers of Justice, 24-26 November 2010, Istanbul, Turkey

41. took note of the progress made in the preparation of the Ministerial Conference;

42. finalised, on the basis of the elements provided, the draft Resolutions: Resolution No. 1 on “a modern, transparent and efficient justice” and Resolution No. 3 on “data protection and privacy in the third millennium”;

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

43. took note of the information provided by the Secretariat on the follow-up given so far to Resolution No. 1 on “preventing and responding to domestic violence” and to 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 (Tromsø, Norway, 17-19 June 2009);

Co-operation with the European Union

44. took note of the information provided by the Secretariat regarding its contribution to the organisation of the following European Union events: the 5th European Forum on the Rights of the Child (Brussels, 14 October 2010) and the Conference of the European Union Agency for Fundamental Rights (FRA) on "Ensuring justice and protection for all children - Challenges and strategies to protect particularly vulnerable children and deliver child-friendly justice in the European Union” (Brussels, 7-8 December 2010);

Elections and appointments

45. took note of the revised list of representatives of the CDCJ to other Council of Europe bodies (document CDCJ (2010) 6 Rev 2 Bil);

46. elected Mr Séamus Carroll (Ireland) as Chair and Ms Nicole Cochet (France) as Vice-Chair;

47. re-elected Mr Milos Hatapka (Slovak Republic) as a Bureau member;

Other business

Follow-up to be given to the Committee of Ministers’ Declaration on "making gender equality a reality"

48. examined the proposals for the follow-up to the Declaration on "making gender equality a reality" adopted by the Committee of Ministers at its 119th Session (Madrid, 12 May 2009), as set out in document CDCJ-BU(2010)13, gave its Bureau the task of following the matter and welcomed the participation of Ms Elfa Yr Gylfadottir, CDMC Rapporteur on gender equality;

4th Council of Europe Conference on Nationality

49. took note of the organisation of the 4th Council of Europe Conference on Nationality taking place on 17 December 2010 with a focus on the “Concepts of nationality in a globalised world” and expressed hope for future work to be carried out by the Council of Europe as a follow-up to that Conference;

Medical liability

50. took note that the work foreseen on the feasibility study concerning the drafting of a guide on alternative dispute resolution in the medical liability field has been cancelled for budgetary reasons;

Debt problems

51. took note of the publication on the CDCJ website of an analytical foreword and a synthesis of the replies received from CDCJ delegations (17 replies) concerning the implementation of Recommendation CM/Rec(2007)8 on legal solutions to debt problems, containing information and examples of good practice concerning this implementation in member states;

52. took note that work on the possible drafting of a European model code of conduct for lending institutions has not yet begun due to the current budgetary situation;

53. adopted the report of its meeting;

Future meetings of the CDCJ and its Bureau

54. agreed in principle to hold its next plenary meeting from 11 or 12 October to 14 October 2011, depending on the items of the draft agenda.

Appendix I

Agenda

1. Opening of the meeting

2. Adoption of the agenda

3. Relations with the Committee of Ministers

I. Texts for adoption and approval by the CDCJ

4. Draft legal instruments

4.1 Draft Recommendation on judges: independence, efficiency and responsibilities

4.2 Draft Recommendation containing Guidelines on Child-friendly Justice

4.3 Draft Recommendation on the protection of individuals with regard to automatic processing of
personal data in the context of profiling

5. Draft opinions

II. Activities

6. Future work of the CDCJ and its subordinate bodies

      · Priorities of the CDCJ for 2011
      · Working methods

Family law

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

6.2 Working Group of the CJ-FA on the legal status of children and parental responsibilities
(CJ-FA-GT3)

6.3 Discrimination on grounds of sexual orientation or gender identity

Rule of law (civil law and justice, administrative law)

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

6.5 Group of Specialists on Child-friendly Justice (CJ-S-CH)

6.6 Access to justice for migrants and asylum seekers

6.7 Administrative law

6.8 The role of prosecutors outside the criminal law field

6.9 Non-governmental organisations (NGOs)

Operation and evaluation of instruments of the CDCJ

6.10 Legal instruments

7. Awareness raising, conferences and seminars

7.1 30th Council of Europe Conference of Ministers of Justice, 24-26 November 2010, Istanbul, Turkey

7.2 29th Council of Europe Conference of Ministers of Justice, 17-19 June 2009, Tromsø, Norway

7.3 EuroDIG (European Dialogue on internet governance) - (Madrid, Spain, 29-30 April 2010) and
IGF (Internet Governance Forum) – (Vilnius, Lithuania, 14-17 September 2010)

7.4 Conference on the Adoption of Children, 30 November-1st December 2009, Strasbourg

8. Work of other Council of Europe bodies

8.1 Consultative Committee of Convention No. 108 (T-PD)

8.2 European Commission for the Efficiency of Justice (CEPEJ)

8.3 Consultative Council of European Judges (CCJE)

8.4 Consultative Council of European Prosecutors (CCPE)

8.5 Committee of Experts on Terrorism (CODEXTER)

8.6 Ad hoc Committee on preventing and combating violence against women and domestic violence (CAHVIO)

8.7 Steering Committee on Bioethics (CDBI)

8.8 Council of Europe Ad hoc Committee for the revision of the Convention on Mutual Assistance
in Tax Matters (CAHTAX)

9. Co-operation with the European Union

III. Elections and appointments

10. Appointment of the representatives of the CDCJ to other Council of Europe bodies

11. Election of the chair, vice-chair and members of the bureau

IV. Future meetings of the CDCJ and its Bureau

12. Calendar of future meetings

13. Other business

Appendix II

Draft Recommendation CM/Rec(2010)…
of the Committee of Ministers to member states
on judges: independence, efficiency and responsibilities

(Adopted by the Committee of Ministers on … 2010
at the … meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,

Having regard to Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention", ETS No. 5), which provides that "everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law", and to the relevant case law of the European Court of Human Rights;

Having regard to the United Nations Basic Principles on the Independence of the Judiciary, endorsed by the United Nations General Assembly in November 1985;

Having regard to the opinions of the Consultative Council of European Judges (CCJE), to the work of the European Commission for the Efficiency of Justice (CEPEJ) and to the European Charter on the Statute for Judges prepared within the framework of multilateral meetings of the Council of Europe;

Noting that in the exercise of their judicial functions, the judges’ role is essential in ensuring the protection of human rights and fundamental freedoms;

Wishing to promote the independence of judges, which is an inherent element of the rule of law, and indispensable to judges’ impartiality and to the functioning of the judicial system;

Underlining that the independence of the judiciary secures for every person the right to a fair trial and therefore is not a privilege for judges, but a guarantee of respect for human rights and fundamental freedoms, allowing every person to have confidence in the justice system;

Aware of the need to guarantee the position and powers of judges in order to achieve an efficient and fair legal system and encourage them to commit themselves actively to the functioning of the judicial system;

Conscious of the need to ensure the proper exercise of judicial responsibilities, duties and powers aimed at protecting the interests of all persons;

Wishing to learn from the diverse experiences in member states with regard to the organisation of judicial institutions in accordance with the rule of law;

Having regard to the diversity of legal systems, constitutional positions and approaches to the separation of powers;

Noting that nothing in this recommendation is intended to lessen guarantees of independence conferred on judges by the constitutions or legal systems of member states;

Noting that the constitutions or legal systems of some member states have established a council, to be referred to in this recommendation as a “council for the judiciary”;

Wishing to promote relations among judicial authorities and individual judges of different member states in order to foster the development of a common judicial culture;

Considering that Recommendation No. R (94) 12 of the Committee of Ministers on the independence, efficiency and role of judges needs to be substantially updated in order to reinforce all measures necessary to promote judges’ independence and efficiency, guarantee and make more effective their responsibility and strengthen the role of individual judges and the judiciary generally,

Recommends that governments of member states take measures to ensure that the provisions contained in the appendix to the present recommendation, which replaces the above-mentioned Recommendation No. R (94) 12, are applied in their legislation, policies and practices and that judges are enabled to perform their functions in accordance with these provisions.

Appendix to Recommendation CM/Rec(2010)…

Chapter I – General aspects

Scope of the recommendation

1. This recommendation is applicable to all persons exercising judicial functions, including those dealing with constitutional matters.

2. The provisions laid down in this recommendation also apply to non-professional judges, except where it is clear from the context that they only apply to professional judges.

Judicial independence and the level at which it should be safeguarded

3. The purpose of independence, as laid down in Article 6 of the Convention, is to guarantee every person the fundamental right to have their case decided in a fair trial, on legal grounds only and without any improper influence.

4. The independence of individual judges is safeguarded by the independence of the judiciary as a whole. As such, it is a fundamental aspect of the rule of law.

5. Judges should have unfettered freedom to decide cases impartially, in accordance with the law and their interpretation of the facts.

6. Judges should have sufficient powers and be able to exercise them in order to carry out their duties and maintain their authority and the dignity of the court. All persons connected with a case, including public bodies or their representatives, should be subject to the authority of the judge.

7. The independence of the judge and of the judiciary should be enshrined in the constitution or at the highest possible legal level in member states, with more specific rules provided at the legislative level.

8. Where judges consider that their independence is threatened, they should be able to have recourse to a council for the judiciary or another independent authority, or they should have effective means of remedy.

9. A case should not be withdrawn from a particular judge without valid reasons. A decision to withdraw a case from a judge should be taken on the basis of objective, pre-established criteria and following a transparent procedure by an authority within the judiciary.

10. Only judges themselves should decide on their own competence in individual cases as defined by law.

Chapter II − External independence

11. The external independence of judges is not a prerogative or privilege granted in judges’ own interest but in the interest of the rule of law and of persons seeking and expecting impartial justice. The independence of judges should be regarded as a guarantee of freedom, respect for human rights and impartial application of the law. Judges’ impartiality and independence are essential to guarantee the equality of parties before the courts.

12. Without prejudice to their independence, judges and the judiciary should maintain constructive working relations with institutions and public authorities involved in the management and administration of the courts, as well as professionals whose tasks are related to the work of judges in order to facilitate an effective and efficient administration of justice.

13. All necessary measures should be taken to respect, protect and promote the independence and impartiality of judges.

14. The law should provide for sanctions against persons seeking to influence judges in an improper manner.

15. Judgments should be reasoned and pronounced publicly. Judges should not otherwise be obliged to justify the reasons for their judgments.

16. Decisions of judges should not be subject to any revision other than appellate or re-opening proceedings, as provided for by law.

17. With the exception of decisions on amnesty, pardon or similar measures, the executive and legislative powers should not take decisions which invalidate judicial decisions.

18. If commenting on judges’ decisions, the executive and legislative powers should avoid criticism that would undermine the independence of or public confidence in the judiciary. They should also avoid actions which may call into question their willingness to abide by judges’ decisions, other than stating their intention to appeal.

19. Judicial proceedings and matters concerning the administration of justice are of public interest. The right to information about judicial matters should, however, be exercised having regard to the limits imposed by judicial independence. The establishment of courts’ spokespersons or press and communication services under the responsibility of the courts or under councils for the judiciary or other independent authorities is encouraged. Judges should exercise restraint in their relations with the media.

20. Judges, who are part of the society they serve, cannot effectively administer justice without public confidence. They should inform themselves of society’s expectations of the judicial system and of complaints about its functioning. Permanent mechanisms to obtain such feedback set up by councils for the judiciary or other independent authorities would contribute to this.

21. Judges may engage in activities outside their official functions. To avoid actual or perceived conflicts of interest, their participation should be restricted to activities compatible with their impartiality and independence.

Chapter III − Internal independence

22. The principle of judicial independence means the independence of each individual judge in the exercise of adjudicating functions. In their decision making judges should be independent and impartial and able to act without any restriction, improper influence, pressure, threat or interference, direct or indirect, from any authority, including authorities internal to the judiciary. Hierarchical judicial organisation should not undermine individual independence.

23. Superior courts should not address instructions to judges about the way they should decide individual cases, except in preliminary rulings or when deciding on legal remedies according to the law.

24. The allocation of cases within a court should follow objective pre-established criteria in order to safeguard the right to an independent and impartial judge. It should not be influenced by the wishes of a party to the case or anyone otherwise interested in the outcome of the case.

25. Judges should be free to form and join professional organisations whose objectives are to safeguard their independence, protect their interests and promote the rule of law.

Chapter IV − Councils for the judiciary

26. Councils for the judiciary are independent bodies, established by law or under the constitution, that seek to safeguard the independence of the judiciary and of individual judges and thereby to promote the efficient functioning of the judicial system.

27. Not less than half the members of such councils should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary.

28. Councils for the judiciary should demonstrate the highest degree of transparency towards judges and society by developing pre-established procedures and reasoned decisions.

29. In exercising their functions, councils for the judiciary should not interfere with the independence of individual judges.

Chapter V − Independence, efficiency and resources

30. The efficiency of judges and of judicial systems is a necessary condition for the protection of every person’s rights, compliance with the requirements of Article 6 of the Convention, legal certainty and public confidence in the rule of law.

31. Efficiency is the delivery of quality decisions within a reasonable time following fair consideration of the issues. Individual judges are obliged to ensure the efficient management of cases for which they are responsible, including the enforcement of decisions the execution of which falls within their jurisdiction.

32. The authorities responsible for the organisation and functioning of the judicial system are obliged to provide judges with conditions enabling them to fulfil their mission and should achieve efficiency while protecting and respecting judges’ independence and impartiality.

Resources

33. Each state should allocate adequate resources, facilities and equipment to the courts to enable them to function in accordance with the standards laid down in Article 6 of the Convention and to enable judges to work efficiently.

34. Judges should be provided with the information they require to enable them to take pertinent procedural decisions where such decisions have financial implications. The power of a judge to make a decision in a particular case should not be solely limited by a requirement to make the most efficient use of resources.

35. A sufficient number of judges and appropriately qualified support staff should be allocated to the courts.

36. To prevent and reduce excessive workload in the courts, measures consistent with judicial independence should be taken to assign non-judicial tasks to other suitably qualified persons.

37. The use of electronic case management systems and information communication technologies should be promoted by both authorities and judges, and their generalised use in courts should be similarly encouraged.

38. All necessary measures should be taken to ensure the safety of judges. These measures may involve protection of the courts and of judges who may become, or are victims of, threats or acts of violence.

Alternative dispute resolution

39. Alternative dispute resolution mechanisms should be promoted.

Courts’ administration

40. Councils for the judiciary, where existing, or other independent authorities with responsibility for the administration of courts, the courts themselves and/or judges’ professional organisations may be consulted when the judicial system’s budget is being prepared.

41. Judges should be encouraged to be involved in courts’ administration.

Assessment

42. With a view to contributing to the efficiency of the administration of justice and continuing improvement of its quality, member states may introduce systems for the assessment of judges by judicial authorities, in accordance with paragraph 58.

International dimension

43. States should provide courts with the appropriate means to enable judges to fulfil their functions efficiently in cases involving foreign or international elements and to support international co-operation and relations between judges.

Chapter VI - Status of the judge

Selection and career

44. Decisions concerning the selection and career of judges should be based on objective criteria pre-established by law or by the competent authorities. Such decisions should be based on merit, having regard to the qualifications, skills and capacity required to adjudicate cases by applying the law while respecting human dignity.

45. There should be no discrimination against judges or candidates for judicial office on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, disability, birth, sexual orientation or other status. A requirement that a judge or a candidate for judicial office must be a national of the state concerned should not be considered discriminatory.

46. The authority taking decisions on the selection and career of judges should be independent of the executive and legislative powers. With a view to guaranteeing its independence, at least half of the members of the authority should be judges chosen by their peers.

47. However, where the constitutional or other legal provisions prescribe that the head of state, the government or the legislative power take decisions concerning the selection and career of judges, an independent and competent authority drawn in substantial part from the judiciary (without prejudice to the rules applicable to councils for the judiciary contained in Chapter IV) should be authorised to make recommendations or express opinions which the relevant appointing authority follows in practice.

48. The membership of the independent authorities referred to in Paragraphs 46 and 47 should ensure the widest possible representation. Their procedures should be transparent with reasons for decisions being made available to applicants on request. An unsuccessful candidate should have the right to challenge the decision, or at least the procedure under which the decision was made.

Tenure and irremovability

49. Security of tenure and irremovability are key elements of the independence of judges. Accordingly, judges should have guaranteed tenure until a mandatory retirement age, where such exists.

50. The terms of office of judges should be established by law. A permanent appointment should only be terminated in cases of serious breaches of disciplinary or criminal provisions established by law, or where the judge can no longer perform judicial functions. Early retirement should be possible only at the request of the judge concerned or on medical grounds.

51. Where recruitment is made for a probationary period or fixed term, the decision on whether to confirm or renew such an appointment should only be taken in accordance with Paragraph 44 so as to ensure that the independence of the judiciary is fully respected.

52. A judge should not receive a new appointment or be moved to another judicial office without consenting to it, except in cases of disciplinary sanctions or reform of the organisation of the judicial system.

Remuneration

53. The principal rules of the system of remuneration for professional judges should be laid down by law.

54. Judges’ remuneration should be commensurate with their profession and responsibilities, and be sufficient to shield them from inducements aimed at influencing their decisions. Guarantees should exist for maintaining a reasonable remuneration in case of illness, maternity or paternity leave, as well as for the payment of a retirement pension, which should be in a reasonable relationship to their level of remuneration when working. Specific legal provisions should be introduced as a safeguard against a reduction in remuneration aimed specifically at judges.

55. Systems making judges’ core remuneration dependent on performance should be avoided as they could create difficulties for the independence of judges.

Training

56. Judges should be provided with theoretical and practical initial and in-service training, entirely funded by the state. This should include economic, social and cultural issues related to the exercise of judicial functions. The intensity and duration of such training should be determined in the light of previous professional experience.

57. An independent authority should ensure, in full compliance with educational autonomy, that initial and in-service training programmes meet the requirements of openness, competence and impartiality inherent in judicial office.

Assessment

58. Where judicial authorities establish systems for the assessment of judges, such systems should be based on objective criteria. These should be published by the competent judicial authority. The procedure should enable judges to express their view on their own activities and on the assessment of these activities, as well as to challenge assessments before an independent authority or a court.

Chapter VII − Duties and responsibilities

Duties

59. Judges should protect the rights and freedoms of all persons equally, respecting their dignity in the conduct of court proceedings.

60. Judges should act independently and impartially in all cases, ensuring that a fair hearing is given to all parties and, where necessary, explaining procedural matters. Judges should act and be seen to act without any improper external influence on the judicial proceedings.

61. Judges should adjudicate on cases which are referred to them. They should withdraw from a case or decline to act where there are valid reasons defined by law, and not otherwise.

62. Judges should manage each case with due diligence and within a reasonable time.

63. Judges should give clear reasons for their judgments in language which is clear and comprehensible.

64. Judges should, in appropriate cases, encourage parties to reach amicable settlements.

65. Judges should regularly update and develop their proficiency.

Liability and disciplinary proceedings

66. The interpretation of the law, assessment of facts or weighing of evidence carried out by judges to determine cases should not give rise to civil or disciplinary liability, except in cases of malice and gross negligence.

67. Only the state may seek to establish the civil liability of a judge through court action in the event that it has had to award compensation.

68. The interpretation of the law, assessment of facts or weighing of evidence carried out by judges to determine cases should not give rise to criminal liability, except in cases of malice.

69. Disciplinary proceedings may follow where judges fail to carry out their duties in an efficient and proper manner. Such proceedings should be conducted by an independent authority or a court with all the guarantees of a fair trial and provide the judge with the right to challenge the decision and sanction. Disciplinary sanctions should be proportionate.

70. Judges should not be personally accountable where their decision is overruled or modified on appeal.

71. When not exercising judicial functions, judges are liable under civil, criminal and administrative law in the same way as any other citizen.

Chapter VIII − Ethics of judges

72. Judges should be guided in their activities by ethical principles of professional conduct. These principles not only include duties that may be sanctioned by disciplinary measures, but offer guidance to judges on how to conduct themselves.

73. These principles should be laid down in codes of judicial ethics which should inspire public confidence in judges and the judiciary. Judges should play a leading role in the development of such codes.

74. Judges should be able to seek advice on ethics from a body within the judiciary.

Appendix III

Draft Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice

(Adopted by the Committee of Ministers on … 2010
at the … meeting of the Ministers’ Deputies)

Preamble

The Committee of Ministers,

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;

Considering the necessity of ensuring the effective implementation of existing binding universal and European standards protecting and promoting children’s rights, including in particular:

- the 1951 United Nations Convention Relating to the Status of Refugees;
- the 1966 International Covenant on Civil and Political Rights;
- the 1966 International Covenant on Economic, Social and Cultural Rights;
- the 1989 United Nations Convention on the Rights of the Child;
- the 2006 United Nations Convention on the Rights of Persons with Disabilities;
- the Convention for the Protection of Human Rights and Fundamental Freedoms (1950, ETS No. 5) (hereafter the ECHR);
- the European Convention on the Exercise of Children’s Rights (1996, ETS No. 160);
- the revised European Social Charter (1996, ETS No. 163);
- the Council of Europe Convention on Contact concerning Children (2003, ETS No. 192);
- the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (2007, CETS No. 201);
- the European Convention on the Adoption of Children (Revised) (2008, CETS No. 202),

Considering that, as guaranteed under the ECHR and in line with the case law of the European Court of Human Rights, the right of any person to have access to justice and to a fair trial – in all its components (including in particular the right to be informed, the right to be heard, the right to a legal defence, and the right to be represented) - is necessary in a democratic society and equally applies to children, taking however into account their capacity to form their own views;

Recalling relevant case law of the European Court of Human Rights, decisions, reports or other documents of other Council of Europe institutions and bodies including recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) as well as statements and opinions of the Council of Europe Commissioner for Human Rights, and various recommendations of the Parliamentary Assembly of the Council of Europe;

Noting various recommendations of the Committee of Ministers to member states in the area of children’s rights, including Recommendation Rec(2003)5 on measures of detention of asylum seekers, Recommendation Rec(2003)20 concerning new ways of dealing with juvenile delinquency and the role of juvenile justice, Recommendation Rec(2005)5 on the rights of children living in residential institutions, Recommendation Rec(2006)2 on the European Prison Rules, Recommendation CM/Rec(2008)11 on the European Rules for Juvenile Offenders subject to sanctions or measures, and Recommendation CM/Rec(2009)10 on Policy Guidelines on integrated national strategies for the protection of children from violence;

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

Considering the importance of safeguarding children's rights by United Nations instruments such as:

- the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”, 1985);
- the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (“The Havana Rules”, 1990);
- the United Nations Guidelines for the Prevention of Juvenile Delinquency (“The Riyadh guidelines”, 1990);
- the United Nations Guidelines on Justice in matters involving Child Victims and Witnesses of Crime (ECOSOC Res 2005/20, 2005);
- Guidance note of the United Nations Secretary General: UN approach to justice for children (2008);
- the United Nations Guidelines for the Appropriate Use and Conditions of Alternative Care for Children (2009);
- Principles relating to the Status and Functioning of National Institutions for Protection and Promotion of Human Rights (“The Paris Principles”);

Recalling the need to guarantee the effective implementation of existing binding norms concerning children's rights, without preventing member states from introducing or applying higher standards or more favourable measures;

Referring to the Council of Europe Programme “Building a Europe for and with children”;

Acknowledging the progress made in member states towards implementing child-friendly justice;

Noting, nonetheless, existing obstacles for children within the justice system such as, among others, the non-existing, partial or conditional legal right to access to justice, the diversity in and complexity of procedures, possible discrimination on various grounds;

Recalling the need to prevent possible secondary victimisation of children by the judicial system in procedures involving or affecting them;

Inviting member states to investigate existing lacunae and problems and identify areas where child-friendly justice principles and practices could be introduced;

Acknowledging the views and opinions of consulted children throughout the member states of the Council of Europe;

Noting that the guidelines aim to contribute to the identification of practical remedies to existing shortcomings in law and in practice;

Adopts the following guidelines to serve as a practical tool for member states in adapting their judicial and non-judicial systems to the specific rights, interests and needs of children and invites member states to ensure that they are widely disseminated among all authorities responsible for or otherwise involved with children’s rights in justice.

I. Scope and purpose

1. The guidelines deal with the issue of the place and role, as well as the views, rights and needs of the child in judicial proceedings as well as in alternatives to such proceedings.

2. The guidelines should apply to all ways in which children are likely to be, for whatever reason and in whatever capacity, brought into contact with all competent bodies and services involved in implementing criminal, civil or administrative law.

3. The guidelines aim to ensure that, in any such proceedings, all rights of children, among which the right to information, to representation, to participation and to protection, are fully respected with due consideration to the child’s level of maturity and understanding as well as to the circumstances of the case. Respecting children’s rights should not jeopardise the rights of other parties involved.

II. Definitions

For the purposes of these Guidelines on child friendly justice (hereafter “the guidelines”):

a. A ‘child’ means any person under the age of 18 years;

    b. A ‘parent’ refers to the person(s) with parental responsibility, according to national law. In case the parent(s) is/are absent or no longer holding parental responsibility, this can be a guardian or an appointed legal representative;

c. ‘Child-friendly justice’ refers to justice systems which guarantee the respect and the effective implementation of all children's rights at the highest attainable level, bearing in mind the principles listed below and giving due consideration to the child’s level of maturity and understanding and the circumstances of the case. It is, in particular, justice that is accessible, age appropriate, speedy, diligent, adapted to and focused on the needs and rights of the child, respecting the rights of the child including the rights to due process, to participate in and to understand the proceedings, to respect for private and family life and to integrity and dignity.

III. Fundamental principles

1. The guidelines build on the existing principles enshrined in the instruments referred to in the Preamble as well as the case law of the European Court of Human Rights.

2. These principles are further developed in the following sections and should apply to all chapters of these guidelines.

A. Participation

1. The right of all children to be informed about their rights, to be given appropriate ways to access justice and to be consulted and heard in proceedings involving or affecting them should be respected. This includes giving due weight to the children’s views bearing in mind their maturity and any communication difficulties they may have in order to make this participation meaningful.

2. Children should be considered and treated as full bearers of rights and should be entitled to exercise all their rights in a manner that takes into account their capacity to form their own views as well as the circumstances of the case.

B. Best interests of the child

1. Member states should guarantee the effective implementation of the right of children to have their best interests be a primary consideration in all matters involving or affecting them.

2. In assessing the best interests of the involved or affected children:

    a. their views and opinions should be given due weight;

    b. all other rights of the child, such as the right to dignity, liberty and equal treatment should be respected at all times;

    c. a comprehensive approach should be adopted by all relevant authorities so as to take due account of all interests at stake, including psychological and physical well-being and legal, social and economic interests of the child.

3. The best interests of all children involved in the same procedure or case should be separately assessed and balanced with a view to reconciling possible conflicting interests of the children.

4. While the judicial authorities have the ultimate competence and responsibility for making the final decisions, member states should make, where necessary, concerted efforts to establish multidisciplinary approaches with the objective of assessing the best interests of children in procedures involving them.

C. Dignity

1. Children should be treated with care, sensitivity, fairness and respect throughout any procedure or case, with special attention for their personal situation, well-being and specific needs, and with full respect for their physical and psychological integrity. This treatment should be given to them, in whichever way they have come into contact with judicial or non-judicial proceedings or other interventions, and regardless of their legal status and capacity in any procedure or case.

2. Children shall not be subjected to torture or inhuman or degrading treatment or punishment.

D. Protection from discrimination

1. The rights of children shall be secured without discrimination on any grounds such as sex, race, colour or ethnic background, age, language, religion, political or other opinion, national or social origin, socio-economic background, status of their parent(s), association with a national minority, property, birth, sexual orientation, gender identity or other status.

2. Specific protection and assistance may need to be granted to more vulnerable children, such as migrant children, refugee and asylum seeking children, unaccompanied children, children with disabilities, homeless and street children, Roma children, and children in residential institutions.

E. Rule of law

1. The rule of law principle should apply fully to children as it does to adults.

2. Elements of due process such as the principles of legality and proportionality, the presumption of innocence, the right to a fair trial, the right to legal advice, the right to access to courts and the right to appeal, should be guaranteed for children as they are for adults and should not be minimised or denied under the pretext of the child’s best interests. This applies to all judicial and non-judicial and administrative proceedings.

3. Children should have the right to access appropriate independent and effective complaints mechanisms.

IV. Child-friendly justice before, during and after judicial proceedings

A. General elements of child-friendly justice

1. Information and advice

1. From their first involvement with the justice system or other competent authorities (such as the police, immigration, educational, social or health care services) and throughout that process, children and their parents should be promptly and adequately informed of inter alia:

    a. their rights in particular the specific rights children have with regard to judicial or non-judicial proceedings in which they are or might be involved, as well as the instruments available to remedy possible violations of their rights including the opportunity to have recourse to either a judicial or non-judicial proceeding or other interventions. This may include information on the likely duration of proceedings, possible access to appeals and independent complaints mechanisms;

    b. the system and procedures- involved taking into consideration the particular place the child will have and the role he/she may play in it and the different procedural steps;

    c. the existing support mechanisms for the child when participating in the judicial or non-judicial procedures;

    d. the appropriateness and possible consequences of a given in-court or out-of-court proceedings;

    e. where applicable, the charges or the follow-up given to their complaint;

    f. the time and place of court proceedings and other relevant events, such as hearings, if the child is personally affected;

    g. the general progress and outcome of the proceedings or intervention;

    h. the availability of protective measures;

    i. the existing mechanisms for review of decisions affecting the child;

    j. the existing opportunities to obtain reparation from the offender or from the state through the justice process, through alternative civil proceedings or through other processes;

    k. the availability of the services (health, psychological, social, interpretation and translation, and other) or organisations which can provide support as well as the means of accessing such services along with emergency financial support, where applicable;

    l. any special arrangements available in order to protect as far as possible their best interests if they are resident in another state.

2. The information and advice should be provided to children in a manner adapted to their age and maturity, in a language which they can understand and which is gender- and culture-sensitive.

3. As a rule, both the child and parents or legal representatives should directly receive the information. Provision of the information to the parents should not be an alternative to communicating the information to the child.

4. Child-friendly materials containing relevant legal information should be made available and widely distributed, and special information services for children such as specialised websites and helplines established.

5. Information on any charges against the child must be given promptly and directly after the charges are brought. This information should be given to both the child and the parents in such a way that they understand the exact charge as well as the possible consequences.

2. Protection of private and family life

6. The privacy and personal data of children who are or have been involved in judicial or non-judicial proceedings and other interventions should be protected in accordance with national law. This generally implies that no information or personal data may be made available or published, particularly in the media, which could reveal or indirectly enable the disclosure of the child’s identity, including image, detailed descriptions of the child or the child’s family, names or addresses, audio and video records, etc.

7. Member states should prevent violations of the privacy rights as mentioned under Guideline (6) above by the media through legislative measures or monitoring self-regulation by the media.

8. Member states should stipulate limited access to all records or documents containing personal and sensitive data of children, in particular in proceedings involving them. If the transfer of personal and sensitive data is necessary, while taking into account the best interests of the child, member states should regulate this transfer in line with relevant data protection legislation.

9. Whenever children are being heard or giving evidence in judicial or non-judicial proceedings or other interventions, where appropriate, this should preferably take place in camera. As a rule, only those directly involved should be present, provided that they do not obstruct children in giving evidence.

10. Professionals working with and for children should abide by the strict rules of confidentiality, except where there is a risk of harm to the child.

3. Safety (special preventive measures)

11. In all judicial and non-judicial proceedings or other interventions, children should be protected from harm, including intimidation, reprisals and secondary victimisation.

12. Professionals working with and for children should, where necessary, be subject to regular vetting, according to national law and without prejudice to the independence of the judiciary, to ensure their suitability to work with children.

13. Special precautionary measures should apply to children when the alleged perpetrator is a parent, a member of the family or a primary caregiver.

4. Training of professionals

14. All professionals working with and for children should receive necessary interdisciplinary training on the rights and needs of children of different age groups, as well as on proceedings that are adapted to them.

15. Professionals having direct contact with children should also be trained in communicating with them at all ages and stages of development as well as with children in situations of particular vulnerability.

5. Multidisciplinary approach

16. With full respect of the child’s right to private and family life, close co-operation between different professionals should be encouraged in order to obtain a comprehensive understanding of the child as well as an assessment of his/her legal, psychological, social, emotional, physical and cognitive situation.

17. A common assessment framework should be established for professionals working with or for children (such as lawyers, psychologists, physicians, police, immigration officials, social workers and mediators) in proceedings or interventions that involve or affect children to provide any necessary support to those taking decisions, enabling them to best serve children’s interests in a given case.

18. While implementing a multidisciplinary approach, professional rules on confidentiality should be respected.

6. Deprivation of liberty

19. Any form of deprivation of liberty of children should be a measure of last resort and be for the shortest appropriate period of time.

20. When deprivation of liberty is imposed, children should, as a rule, be held separately from adults. When children are detained with adults, this should be for exceptional reasons and based solely on the best interests of the child. In all circumstances, children should be detained in premises suited to their needs.

21. Given the vulnerability of children deprived of liberty, the importance of family ties and promoting the reintegration into society, competent authorities should ensure respect and actively support the fulfilment of the rights of the child as set out in universal and European instruments. In addition to other rights, children in particular should have the right to:

    a. maintain regular and meaningful contact with parents, family and friends through visits and correspondence, except when restrictions are required in the interests of justice and the interests of the child. Restrictions on this right should never be used as a punishment;

    b. receive appropriate education, vocational guidance and training, medical care, and enjoy freedom of thought, conscience and religion and access to leisure, including physical education and sport;

    c. access programmes that prepare children in advance for their return to their communities, with full attention given to them in respect of their emotional and physical needs, their family relationships, housing, schooling and employment possibilities and socio-economic status.

22. The deprivation of liberty of unaccompanied minors, including those seeking asylum, and separated children should never be motivated or based solely on the absence of residence status.

B. Child-friendly justice before judicial proceedings

23. The minimum age of criminal responsibility should not be too low and should be determined by law.

24. Alternatives to judicial proceedings such as mediation, diversion (of judicial mechanisms) and alternative dispute resolution should be encouraged whenever these may best serve the child’s best interests. The preliminary use of such alternatives should not be used as an obstacle to the child’s access to justice.

25. Children should be thoroughly informed and consulted on the opportunity to have recourse to either a court proceeding or alternatives outside court settings. This information should also explain the possible consequences of each option. Based on adequate information, both legal and otherwise, a choice should be available to use either court procedures or alternatives for these proceedings whenever they exist. Children must be given the opportunity to obtain legal advice and other assistance in determining the appropriateness and desirability of the proposed alternatives. In making this decision, the views of the child should be taken into account.

26. Alternatives to court proceedings should guarantee an equivalent level of legal safeguards. Respect for children's rights as described in these guidelines and in all relevant legal instruments on the rights of the child should be guaranteed to the same extent in both in-court and out-of-court proceedings.

C. Children and the police

27. Police should respect the personal rights and dignity of all children and have regard to their vulnerability, i.e. take account of their age and maturity and any special needs of those who may be under a physical or mental disability or have communication difficulties.

28. Whenever a child is apprehended by the police, the child should be informed in a manner and in language that is appropriate to his or her age and level of understanding of the reason for which he or she has been taken into custody. Children should be provided with access to a lawyer and be given the opportunity to contact their parents or a person whom they trust.

29. Save in exceptional circumstances, the parent(s) should be informed of the child’s presence in the police station, given details of the reason why the child has been taken into custody and be asked to come to the station.

30. A child who has been taken into custody should not be questioned in respect of criminal behaviour, or asked to make or sign a statement concerning such involvement, except in the presence of a lawyer or one of the child’s parents or, if no parent is available, another person whom the child trusts. The parent or this person may be excluded if suspected of involvement in the criminal behaviour or if engaging in conduct which amounts to an obstruction of justice.

31. Police should ensure that as far as possible no child in their custody is detained together with adults.

32. Authorities should ensure that children in police custody are kept in conditions that are safe and appropriate to their needs.

33. In member states where this falls under their mandate, prosecutors should ensure that child-friendly approaches are used throughout the investigation process.

D. Child-friendly justice during judicial proceedings

1. Access to court and to the judicial process

34. As bearers of rights, children should have recourse to remedies to effectively exercise their rights or act upon violations of their rights. The domestic law should facilitate where appropriate the possibility of access to court for children who have sufficient understanding of their rights as well as of the use of remedies to protect these rights, based on adequately given legal advice.

35. Any obstacles to access to court, such as the cost of the proceedings or the lack of legal counsel, should be removed.

36. In cases of certain specific crimes committed against children, or certain aspects of civil or family law, access to court should be granted for a period of time after the child has reached the age of majority where necessary. Member states are encouraged to review their statutes of limitation.

2. Legal counsel and representation

37. Children should have the right to their own legal counsel and representation, in their own name, in proceedings where there is, or could be, a conflict of interest between the child and the parents or other involved parties.

38. Children should have access to free legal aid, under the same or more lenient conditions as adults.

39. Lawyers representing children should be trained in and knowledgeable on children's rights and related issues, receive ongoing and in-depth training and be capable of communicating with children at their level of understanding.

40. Children should be considered as fully-fledged clients with their own rights and lawyers representing children should bring forward the opinion of the child.

41. Lawyers should provide the child with all necessary information and explanations concerning the possible consequences of the child’s views and/or opinions.

42. In cases where there are conflicting interests between parents and children, the competent authority should appoint either a guardian ad litem or another independent representative to represent the views and interests of the child.

43. Adequate representation and the right to be represented independently from the parents should be guaranteed, especially in proceedings where the parents, members of the family or caregivers are the alleged offenders.

3. Right to be heard and to express views

44. Judges should respect the right of children to be heard in all matters that affect them or at least to be heard when they are deemed to have a sufficient understanding of the matters in question. Means used for this purpose should be adapted to the child’s level of understanding and ability to communicate and take into account the circumstances of the case. Children should be consulted on the manner in which they wish to be heard.

45. Due weight should be given to the child’s views and opinion in accordance with his or her age and maturity.

46. The right to be heard is a right of the child, not a duty on the child.

47. A child should not be precluded from being heard solely on the basis of age. Whenever a child takes the initiative to be heard in a case that affects him or her, the judge should not, unless it is in the child’s best interests, refuse to hear the child and should listen to his or her views and opinion on matters concerning him or her in the case.

48. Children should be provided with all necessary information on how effectively to use the right to be heard. However, it should be explained to them that their right to be heard and to have their views taken into consideration may not necessarily determine the final decision.

49. Judgments and court rulings affecting children should be duly reasoned and explained to them in language that children can understand, particularly those decisions in which the child’s views and opinions have not been followed.

4. Avoiding undue delay

50. In all proceedings involving children, the urgency principle should be applied to provide a speedy response and protect the best interests of the child, while respecting the rule of law.

51. In family law cases (for example parentage, custody, parental abduction), courts should exercise exceptional diligence to avoid any risk of adverse consequences on the family relations.

52. When necessary, judicial authorities should consider the possibility of taking provisional decisions or making preliminary judgments to be monitored for a certain period of time in order to be reviewed later.

53. In accordance with the law, judicial authorities should have the possibility to take decisions which are immediately enforceable in cases where this would be in the best interests of the child.

5. Organisation of the proceedings, child-friendly environment and child-friendly language

54. In all proceedings, children should be treated with respect for their age, their special needs, their maturity and level of understanding and bearing in mind any communication difficulties they may have. Cases involving children should be dealt with in non-intimidating and child-sensitive settings.

55. Before proceedings begin, children should be familiarised with the layout of the court or other facilities and the roles and identities of the officials involved.

56. Language appropriate to children’s age and level of understanding should be used.

57. When children are heard or interviewed in judicial and non-judicial proceedings and during other interventions, judges and other professionals should interact with them with respect and sensitivity.

58. Children should be allowed to be accompanied by their parents, or, where appropriate, an adult of their choice, unless a reasoned decision has been made to the contrary in respect of that person.

59. Interview methods, such as video or audio-recording or pre-trial hearings in camera, should be used and considered as admissible evidence.

60. Children should be protected, as far as possible, against images or information that could be harmful to their welfare. In deciding on disclosure of possibly harmful images or information to the child, the judge should seek advice from other professionals, such as psychologists and social workers.

61. Court sessions involving children should be adapted to the child’s pace and attention span: regular breaks should be planned and hearings should not last too long. To facilitate the participation of children to their full cognitive capacity and to support their emotional stability, disruption and distractions during court sessions should be kept to a minimum.

62. As far as appropriate and possible, interviewing and waiting rooms should be arranged for children in a child-friendly environment.

63. As far as possible, specialist courts (or court chambers), procedures and institutions should be established for children in conflict with the law. This could include the establishment of specialised units within the police, the judiciary, the court system and the prosecutor’s office.

6. Evidence / statements by children

64. Interviews of and the gathering of statements from children should, as far as possible, be carried out by trained professionals. Every effort should be made for children to give evidence in the most favourable settings and under the most suitable conditions, having regard to their age, maturity and level of understanding and any communication difficulties they may have.

65. Audiovisual statements from children who are victims or witnesses should be encouraged, while respecting the right of other parties to contest the content of such statements.

66. When more than one interview is necessary, they should preferably be carried out by the same person, in order to ensure coherence of approach in the best interests of the child.

67. The number of interviews should be as limited as possible and their length should be adapted to the child’s age and attention span.

68. Direct contact, confrontation or interaction between a child victim or witness with alleged perpetrators should, as far as possible, be avoided unless at the request of the child victim.

69. Children should have the opportunity to give evidence in criminal cases without the presence of the alleged perpetrator.

70. The existence of less strict rules on giving evidence such as absence of the requirement for oath or other similar declarations, or other child-friendly procedural measures, should not in itself diminish the value given to a child’s testimony or evidence.

71. Interview protocols that take into account different stages of the child’s development should be designed and implemented to underpin the validity of children’s evidence. These should avoid leading questions and thereby enhance reliability.

72. With regard to the best interests and well-being of children, it should be possible for a judge to allow a child not to testify.

73. A child’s statements and evidence should never be presumed invalid or untrustworthy by reason only of the child’s age.

74. The possibility of taking statements of child victims and witnesses in specially designed child-friendly facilities and child-friendly environment should be examined.

E. Child-friendly justice after judicial proceedings

75. The child’s lawyer, guardian ad litem or legal representative should communicate and explain the given decision or judgment to the child in a language adapted to the child’s level of understanding and should give the necessary information on possible measures that could be taken, such as appeal or independent complaint mechanisms.

76. National authorities should take all necessary steps to facilitate the execution of judicial decisions/rulings involving and affecting children without delay.

77. When decision has not been enforced, children should be informed, possibly through their lawyer, guardian ad litem or legal representative, of available remedies either through non-judicial mechanisms or access to justice.

78. Implementation of judgments by force should be a measure of last resort in family cases when children are involved.

79. After judgments in highly conflictual proceedings, guidance and support should be offered, ideally free of charge, to children and their families by specialised services.

80. Particular health care and appropriate social and therapeutic intervention programmes or measures for victims of neglect, violence, abuse or other crimes should be provided, ideally free of charge, and children and their caregivers should be promptly and adequately informed of the availability of such services.

81. The child’s lawyer, guardian ad litem or legal representative should have a mandate to take all necessary steps to claim for damages during or after criminal proceedings in which the child was a victim. Where appropriate, the costs could be covered by the state and recovered from the perpetrator.

82. Measures and sanctions for children in conflict with the law should always be constructive and individualised responses to the committed acts, bearing in mind the principle of proportionality, the child’s age, physical and mental well-being and development and the circumstances of the case. The right to education, vocational training, employment, rehabilitation and reintegration should be guaranteed.

83. In order to promote the reintegration within society, and in accordance with the national law, criminal records of children should be non-disclosable outside the justice system on reaching the age of majority. Exceptions for the disclosure of such information can be permitted in cases of serious offences, inter alia for reasons of public safety or when employment with children is concerned.

V. Promoting other child-friendly actions

Member states are encouraged to:

    a. promote research into all aspects of child-friendly justice, including child-sensitive interviewing techniques and dissemination of information and training on such techniques;

    b. exchange practice and promote co-operation in the field of child-friendly justice internationally;

    c. promote the publication and widest possible dissemination of child-friendly versions of relevant legal instruments;

    d. set up, or maintain and reinforce where necessary, information offices for children's rights, possibly linked to bar associations, welfare services, (children’s) ombudsmen, NGOs etc.;

    e. facilitate children’s access to courts and complaint mechanisms and further recognise and facilitate the role of NGOs and other independent bodies or institutions such as children’s ombudsmen in supporting children’s effective access to courts and independent complaint mechanisms, both on a national and international level;

    f. consider the establishment of a system of specialised judges and lawyers for children and further develop courts in which both legal and social measures can be taken in favour of children and their families;

    g. develop and facilitate the use by children and others acting on their behalf of universal and European human and children's rights protection mechanisms for the pursuit of justice and protection of rights when domestic remedies do not exist or have been exhausted;

    h. make human rights, including children's rights, a mandatory component in the school curricula and for professionals working with children;

    i. develop and support systems aimed at raising the awareness of parents on children’s rights;

    j. set up child-friendly, multi-agency and interdisciplinary centres for child victims and witnesses where children could be interviewed and medically examined for forensic purposes, comprehensively assessed and receive all relevant therapeutic services from appropriate professionals;

    k. set up specialised and accessible support and information services, such as online consultation, help lines and local community services free of charge;

    l. ensure that all concerned professionals working in contact with children in justice systems receive appropriate support and training as well as practical guidance in order to guarantee and implement adequately the rights of children, in particular while assessing children’s best interests in all types of procedures involving or affecting them.

VI. Monitoring and assessment

Member states are also encouraged to:

    a. review domestic legislation, policies and practices to ensure the necessary reforms to implement these guidelines;

    b. to speedily ratify, if not yet done so, relevant Council of Europe conventions concerning children’s rights;

    c. periodically review and evaluate their working methods within the child-friendly justice setting;

    d. maintain or establish a framework, including one or more independent mechanisms, as appropriate, to promote and monitor implementation of the present guidelines, in accordance with their judicial and administrative systems;

    e. ensure that civil society, in particular organisations, institutions and bodies which aim to promote and to protect the rights of the child, participate fully in the monitoring process.

Appendix IV

Draft Recommendation CM/Rec(2010)…of the Committee of Ministers to member states
on the protection of individuals with regard to automatic processing of personal data in the context of profiling

(Adopted by the Committee of Ministers on … 2010
at the … meeting of the Ministers’ Deputies)

The Committee of Ministers,

1. Considering that the aim of the Council of Europe is to achieve ever closer union among its members;

2. Noting that information and communication technologies (ICTs) allow the collection and processing on a large scale of data, including personal data, in both the private and public sectors; noting that ICTs are used for a wide range of purposes including uses for services widely accepted and valued by society, consumers and the economy; noting at the same time that continuous development of convergent technologies poses new challenges as regards collection and further processing of data;

3. Noting that this collection and processing may occur in different situations for different purposes and concern different types of data, such as traffic data and user queries on the Internet, consumer buying habits, activities, lifestyle and behaviour data concerning users of telecommunication devices including geo-location data, as well as data stemming in particular from social networks, video surveillance systems, biometric systems and radio frequency identification (RFID) systems foreshadowing the "Internet of things"; noting that it is desirable to assess the different situations and purposes in a differentiated manner;

4. Noting that data thus collected are processed namely by calculation, comparison and statistical correlation software, with the aim of producing profiles that could be used in many ways for different purposes and uses by matching the data of several individuals; noting that the development of ICTs enables these operations to be performed at a relatively low cost;

5. Considering that, through this linking of a large number of individual, even anonymous, observations, the profiling technique is capable of having an impact on the people concerned by placing them in predetermined categories, very often without their knowledge;

6. Considering that profiles, when they are attributed to a data subject, make it possible to generate new personal data which are not those which the data subject has communicated to the controller or which she or he can reasonably presume to be known to the controller;

7. Considering that the lack of transparency, or even “invisibility”, of profiling and the lack of accuracy that may derive from the automatic application of pre-established rules of inference can pose significant risks for the individual’s rights and freedoms;

8. Considering in particular that the protection of fundamental rights, in particular the right to privacy and protection of personal data, entails the existence of different and independent spheres of life where each individual can control the use she or he makes of her or his identity;

9. Considering that profiling may be in the legitimate interests of both the person who uses it and the person to whom it is applied, such as by leading to better market segmentation, permitting an analysis of risks and fraud, or adapting offers to meet demand by the provision of better services; and considering that profiling may thus provide benefits for users, the economy and society at large;

10. Considering, however, that profiling an individual may result in unjustifiably depriving her or him from accessing certain goods or services, and thereby violate the principle of non-discrimination;

11. Considering furthermore that profiling techniques, highlighting correlations between sensitive data in the sense of Article 6 of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108, hereafter “Convention No. 108”) and other data, can enable the generation of new sensitive data concerning an identified or identifiable person; further considering that such profiling can expose individuals to particularly high risks of discrimination and attacks on their personal rights and dignity;

12. Considering that the profiling of children may have serious consequences for them throughout their life, and given that they are unable, on their own behalf, to give their free, specific and informed consent when personal data are collected for profiling purposes, specific and appropriate measures for the protection of children are necessary to take account of the best interests of the child and the development of their personality in accordance with the United Nations Convention on the Rights of the Child;

13. Considering that the use of profiles, even legitimately, without precautions and specific safeguards, could severely damage human dignity, as well as other fundamental rights and freedoms, including economic and social rights;

14. Convinced that it is therefore necessary to regulate profiling as regards the protection of personal data in order to safeguard the fundamental rights and freedoms of individuals, in particular the right to privacy, and to prevent discrimination on the basis of sex, racial and ethnic origin, religion or belief, disability, age or sexual orientation;

15. Recalling in this regard the general principles on data protection in Convention No. 108;

16. Recalling that every person shall have the right of access to data relating to him or her and considering that every person should know the logic involved in profiling; whereas this right  should not affect the rights and freedoms of others, and in particular not adversely affect trade secrets or intellectual property or the copyright protecting the software;

17. Recalling the necessity to comply with the already existing principles set out by other relevant recommendations of the Council of Europe, in particular Recommendation Rec(2002)9 on the protection of personal data collected and processed for insurance purposes and Recommendation No. R (97) 18 concerning the protection of personal data collected and processed for statistical purposes;

18. Taking into account the Council of Europe Convention on Cybercrime (ETS No. 185 – Budapest Convention) which contains regulations for the preservation, collection and exchange of data, subject to conditions and safeguards providing for the adequate protection of human rights and liberties;

19. Taking into account both Article 8 of the European Convention on Human Rights (ETS No. 5), as interpreted by the European Court of Human Rights, and new risks created by the use of information and communication technologies;

20. Considering that the protection of human dignity and other fundamental rights and freedoms in the context of profiling can be effective if, and only if, all the stakeholders contribute together to a fair and lawful profiling of individuals;

21. Taking into account that the mobility of individuals, the globalisation of markets and the use of new technologies necessitate transborder exchanges of information, including in the context of profiling, and require comparable data protection in all the member states of the Council of Europe,

Recommends that the governments of member states:

1. apply the appendix of the present recommendation to the collection and processing of personal data used in the context of profiling notably by taking measures to ensure that the principles set out in the appendix to this recommendation are reflected in their law and practice;

2. ensure the broad dissemination of the principles set out in the appendix to this recommendation among persons, public authorities and public or private bodies, particularly those which participate in and use profiling, such as designers and suppliers of software, profile designers, electronic communications service providers and information society service providers, as well as among the bodies responsible for data protection and the standardisation bodies;

3. encourage such persons, public authorities and public or private bodies to introduce and promote self-regulation mechanisms, such as codes of conduct, ensuring respect for privacy and data protection, and put in place the technologies found in the appendix to this recommendation.

Appendix to Recommendation CM/Rec(2010)…..

1. Definitions

For the purposes of this recommendation:

a. "Personal data" means any information relating to an identified or identifiable individual ("data subject"). An individual is not considered “identifiable” if identification requires unreasonable time or effort.

b. “Sensitive data” means personal data revealing the racial origin, political opinions or religious or other beliefs, as well as personal data on health, sex life or criminal convictions, as well as other data defined as sensitive by domestic law.

c. “Processing” means any operation or set of operations carried out partly or completely with the help of automated processes and applied to personal data, such as storage, conservation, adaptation or alteration, extraction, consultation, utilisation, communication, matching or interconnection, as well as erasure or destruction.

d. “Profile” refers to a set of data characterising a category of individuals that is intended to be applied to an individual.

e. “Profiling” means an automatic data processing technique that consists of applying a “profile” to an individual, particularly in order to take decisions concerning her or him or for analysing or predicting her or his personal preferences, behaviours and attitudes.

f. “Information society service” refers to any service, normally provided for remuneration, at a distance, by electronic means.

g. “Controller” means the natural or legal person, public authority, agency or any other body which alone, or in collaboration with others, determines the purposes of and means used in the collection and processing of personal data.

h. “Processor” means the natural or legal person, public authority, agency or any other body which processes personal data on behalf of the controller.

2. General principles

2.1. The respect for fundamental rights and freedoms, notably the right to privacy and the principle of non-discrimination, shall be guaranteed during the collection and processing of personal data subject to this recommendation.

2.2. Member states should encourage the design and implementation of procedures and systems in accordance with privacy and data protection, already at their planning stage, notably through the use of privacy-enhancing technologies. They should also take appropriate measures against the development and use of technologies which are aimed, wholly or partly, at the illicit circumvention of technological measures protecting privacy.

3. Conditions for the collection and processing of personal data in the context of profiling

A. Lawfulness

3.1. The collection and processing of personal data in the context of profiling should be fair, lawful and proportionate, and for specified and legitimate purposes.

3.2. Personal data used in the context of profiling should be adequate, relevant and not excessive in relation to the purposes for which they are collected or for which they will be processed.

3.3. Personal data used in the context of profiling should be stored in a form that allows the identification of the data subjects for a period no longer than is necessary for the purposes for which they are collected and processed.

3.4. Collection and processing of personal data in the context of profiling may only be performed:

a. if it is provided for by law; or
b. if it is permitted by law and:

- the data subject or her or his legal representative has given her or his free, specific and informed consent;

- is necessary for the performance of a contract to which the data subject is a party or for the implementation of pre-contractual measures taken at the request of the data subject;

- is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the personal data are disclosed;

- is necessary for the purposes of the legitimate interests of the controller or the third party or parties to whom the profiles or data are disclosed, except where such interests are overridden by the fundamental rights and freedoms of the data subjects;

- is necessary in the vital interests of the data subject.

3.5. The collection and processing of personal data in the context of profiling of persons who cannot express on their own behalf their free, specific and informed consent should be forbidden except when this is in the legitimate interest of the data subject or if there is an overriding public interest, on the condition that appropriate safeguards are provided for by law.

3.6. When consent is required it is incumbent on the controller to prove that the data subject has agreed to profiling on an informed basis, as set out in Section 4.

3.7. As much as possible, and unless the service required necessitates knowledge of the data subject’s identity, everyone should have access to information about goods or services or access to these goods or services themselves without having to communicate personal data to the goods or services provider. In order to ensure free, specific and informed consent to profiling, providers of information society services should ensure, by default, non-profiled access to information about their services.

3.8. The distribution and use, without the data subject’s knowledge, of software aimed at the observation or the monitoring in the context of profiling of the use being made of a given terminal or electronic communication network should be permitted only if they are expressly provided for by domestic law and accompanied by appropriate safeguards.

B. Data quality

3.9. Appropriate measures should be taken by the controller to correct data inaccuracy factors and limit the risks of errors inherent in profiling.

3.10. The controller should periodically and within a reasonable time re-evaluate the quality of the data and of the statistical inferences used.

C. Sensitive data

3.11. The collection and processing of sensitive data in the context of profiling is prohibited except if these data are necessary for the lawful and specific purposes of processing and as long as domestic law provides appropriate safeguards. When consent is required it shall be explicit where the processing concerns sensitive data.

4. Information

4.1. Where personal data are collected in the context of profiling, the controller should provide the data subjects with the following information:

a. that their data will be used in the context of profiling;

b. the purposes for which the profiling is carried out;

c. the categories of personal data used;

d. the identity of the controller and, if necessary, her or his representative;

e. the existence of appropriate safeguards;

f. all information that is necessary for guaranteeing the fairness of recourse to profiling, such as:

- the categories of persons or bodies to whom or to which the personal data may be communicated, and the purposes for doing so;

- the possibility, where appropriate, for the data subjects to refuse or withdraw consent, and the consequences of withdrawal;

- the conditions of exercise of the right of access, objection or correction, as well as the right to bring a complaint before the competent authorities;

- the persons from whom or bodies from which the personal data are or will be collected;

- the compulsory or optional nature of the reply to the questions used for personal data collection and the consequences for the data subjects of not replying;

- the duration of storage;

- the envisaged effects of the attribution of the profile to the data subject.

4.2. Where the personal data are collected from the data subject, the controller should provide the data subject with the information listed in Principle 4.1 at the latest at the time of collection.

4.3. Where personal data are not collected from data subjects, the controller should provide the data subjects with the information listed in Principle 4.1 as soon as the personal data are recorded or, if it is planned to communicate the personal data to a third party, at the latest when the personal data are first communicated.

4.4. Where the personal data are collected without the intent of applying profiling methods and are processed further in the context of profiling, the controller should have to provide the same information as that foreseen under Principle 4.1.

4.5. The provisions under 4.2, 4.3 and 4.4 to inform the data subjects do not apply if:

a. the data subject has already been informed;

b. it proves impossible to provide the information or it would involve disproportionate effort;

c. the processing or communication of personal data for profiling is expressly provided for by domestic law.

In the cases set out in b and c, appropriate safeguards should be provided for.

4.6. Information provided to the data subject should be appropriate and adapted to the circumstances.

5. Rights of data subjects

5.1. The data subject who is being or has been profiled should be entitled to obtain from the controller, at her or his request, within a reasonable time and in an understandable form, information concerning:

a. her or his personal data;

b. the logic underpinning the processing of her or his personal data and that was used to attribute a profile to her or him, at least in the case of an automated decision;

c. the purposes for which the profiling was carried out and the categories of persons to whom or bodies to which the personal data may be communicated.

5.2. Data subjects should be entitled to secure correction, deletion or blocking of their personal data, as the case may be, where profiling in the course of personal data processing is performed contrary to the provisions of domestic law which enforce the principles set out in this recommendation.

5.3. Unless the law provides for profiling in the context of personal data processing, the data subject should be entitled to object, on compelling legitimate grounds relating to her or his situation, to the use of her or his personal data for profiling. Where there is justified objection, the profiling should no longer involve the use of the personal data of the data subject. Where the purpose of the processing is direct marketing, the data subject does not have to present any justification.

5.4. If there are any grounds for restricting the rights set out in this section in accordance with
Section 6, this decision should be communicated to the data subject by any means that allows it to be put on record, with a mention of the legal and factual reasons for such a restriction.

This mention may be omitted when a reason exists which endangers the aim of the restriction. In such cases, information should be given to the data subject on how to challenge this decision before the competent national supervisory authority, a judicial authority or a court.

5.5. Where a person is subject to a decision having legal effects concerning her or him, or significantly affecting her or him, taken on the sole basis of profiling, she or he should be able to object to the decision unless:

a. this is provided for by law, which lays down measures to safeguard data subjects’ legitimate interests, particularly by allowing them to put forward their point of view;

b. the decision was taken in the course of the performance of a contract to which the data subject is party or for the implementation of pre-contractual measures taken at the request of the data subject and that measures for safeguarding the legitimate interests of the data subject are in place.

6. Exceptions and restrictions

Where it is necessary in a democratic society for reasons of state security, public safety, the monetary interests of the state or the prevention and suppression of criminal offences, or protecting the data subject or the rights and freedoms of others, member states need not apply the provisions set out in Sections 3, 4 and 5 of the present recommendation, where this is provided for in law.

7. Remedies

Domestic law should provide appropriate sanctions and remedies in cases of breach of the provisions of domestic law giving effect to the principles laid down in this recommendation.

8. Data security

8.1. Appropriate technical and organisational measures should be taken to ensure the protection of personal data processed in accordance with the provisions of domestic law enforcing the principles set out in this recommendation, to guard against accidental or unlawful destruction and accidental loss, as well as unauthorised access, alteration, communication or any other form of unlawful processing.

These measures should ensure a proper standard of data security having regard to the technical state of the art and also to the sensitive nature of the personal data collected and processed in the context of profiling, and evaluating the potential risks. They should be reviewed periodically and within a reasonable time.

8.2. The controllers should, in accordance with domestic law, lay down appropriate internal regulations with due regard to the relevant principles of this recommendation.

8.3. If necessary, the controllers should appoint an independent person responsible for the security of information systems and data protection, and qualified to give advice on these matters.

8.4. Controllers should choose processors who offer adequate safeguards regarding the technical and organisational aspects of the processing to be carried out, and should ensure that these safeguards are observed and that, in particular, the processing is in accordance with their instructions.

8.5. Suitable measures should be introduced to guard against any possibility that the anonymous and aggregated statistical results used in profiling may result in the re-identification of the data subjects.

9. Supervisory authorities

9.1. Member states should mandate one or more independent authorities to ensure compliance with the domestic law implementing the principles set out in this recommendation and having, in this respect, the necessary powers of investigation and intervention, in particular the power to hear claims lodged by any individual person.

9.2. Furthermore, in cases of processing that use profiling and entail special risks with regard to the protection of privacy and personal data, member states may foresee either:

a. that controllers have to notify the supervisory authority in advance of the processing; or

b. that this processing is subject to prior checking by the supervisory authority.

9.3. The above authorities should inform the public of the application of the legislation implementing the principles set out in this recommendation.

Appendix V

Draft Terms of Reference of the European Committee on Legal Co-operation (CDCJ) for 2011

Name of Committee

European Committee on Legal Co-operation (CDCJ)

Compliance with Resolution Res(2005)47

YES

Programme

Development of Common Standards and Policies (Rule of Law / Strengthening the Rule of Law and Developing Common Standards)

Relevance

1. The Action Plan of the Third Summit of the Heads of State and Government of the Council of Europe, in particular items 3 and 4 from its Chapter I “Promoting common fundamental values: Human Rights, Rule of Law and Democracy”.
2. Contribution to core values of the Council of Europe, namely by dealing with legal reforms in the field of public and private law.
3. Document CM(2006)60 of 6 May 2006, containing the CDCJ reply to the Committee of Ministers concerning its contribution to the implementation of the Warsaw Action Plan.
Political framework: the CDCJ is entrusted with the task of preparing, jointly with the European Committee on Crime Problems (CDPC) and the Steering Committee on Human Rights (CDDH), the Council of Europe Conferences of Ministers of Justice and ensure their follow-up in its field of competence.
Consolidation, promotion and implementation of standards:
The CDCJ has a vast area of responsibility in public and private law and is entrusted with the task of preparing legal instruments, assessing their implementation and promoting them.

Added Value

The Council of Europe, through the CDCJ, is the best placed organisation to address public and private law issues. Over the years it has prepared a considerable number of instruments which for some are unique at the European level and are key tools for the improvement of the laws and practices of the member states.
It is crucial to ensure the implementation and development of the great array of standards developed within the Council of Europe in the fields of competence of the CDCJ, such as justice and the rule of law, family law and children’s rights, information technology and law, data protection, nationality law, civil law and finally administrative law.
The CDCJ enables member states and professionals to follow international developments on legal standards which they strive to take into account for developing, modernising and harmonising their national legislation.
The CDCJ will be particularly careful to avoid duplication of work with other international organisations and in integrating its activities within the work and activities of other bodies of the Council of Europe thus developing appropriate feedback and links between the traditional standard-setting sector and the monitoring sector of the Council of Europe.
The CoE carries out the pioneering work: elaboration of European standards in the field of nationality, justice, Rule of Law and family law makes possible legal coherence in Europe and benefits other international organisations, especially the European Union. The CDCJ remains a useful forum, insofar as it continues to raise emergent issues which are not addressed by other organisations.

Financial Information

Number of meetings per year and estimated costs:
1 CDCJ plenary meeting (4 days- 47 member states): €53 500
2 meetings of the Bureau (6 members – 5 days in total): €11 100
Participation of CDCJ in other committees: €13100
Total Interpretation costs: €17 175
Annual budget: approx. €94 875 (without recharged services’ costs).

Draft Terms of Reference of the European Committee on Legal Co-operation (CDCJ)

1.

Name of Committee:

European Committee on Legal Co-operation (CDCJ)

2.

Type of Committee:

Steering Committee

3.

Source of terms of reference:

Committee of Ministers

4.

Terms of reference :

-

-

Having regard to:

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

the Action Plan of the Third Summit of the Heads of State and Government of the Council of Europe (Warsaw, 16-17 May 2005), in particular items 3 and 4 from its Chapter I ““Promoting common fundamental values: Human Rights, Rule of Law and Democracy”.

 

Within the framework of the [Draft] Council of Europe Programme and Budget 2011, under programme Development of Common Standards and Policies (Rule of Law / Strengthening the Rule of Law and Developing Common Standards), the Committee is instructed to:

i.

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

ii.

Promote law reform and legal co-operation in the following areas:

- family law and children’s rights;
- data protection;
- justice and the rule of law;
- information technology and law;
- civil law;
- administrative law (suspended);
- nationality (suspended).

iii.

-

-

-

-

-

-

-

Carry out the following tasks

the supervision and organisation of the work of its subordinate bodies, colloquies and conferences;

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

the monitoring of the functioning and implementation of the international instruments coming within its field of competence and assistance to states for specific problems and co-operation with the appropriate convention committees with a view to strengthening or to modernisign them;

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

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

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

co-operation with other Council of Europe bodies in particular with the European Committee on Crime Problems (CDPC), the Consultative Council of European Judges (CCJE), the European Commission for the Efficiency of Justice (CEPEJ), the Consultative Council of European Prosecutors (CCPE); the Committee of Experts on Terrorism (CODEXTER), the Steering Committee on Bioethics (CDBI), the Steering Committee for Human Rights (CDDH), the Steering Committee for Equality between Women and Men (CDEG), the Steering Committee on the Media and New Communication Services (CDMC), and the Consultative Committee of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (T-PD);

-

-

-

assistance to states to carry out appropriate reforms:

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

obtaining information by means of:

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

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

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

iv.

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

5.

Composition of the Committee:

5.A.

Members

 

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

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

5.B.

Participants

i.

The CDCJ may request one of its subordinate bodies to be represented at one of its meetings, without the right to vote. The Council of Europe budget will bear the travel and subsistence expenses of the representative of the subordinate body.

ii.

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

- the European Committee on Crime Problems (CDPC);
- the European Commission for the Efficiency of Justice (CEPEJ);
- the Consultative Council of European Judges (CCJE);
- the Consultative Council of European Prosecutors (CCPE);
- the Committee of Experts on Terrorism (CODEXTER);
- the Steering Committee on Bioethics (CDBI);
- the Steering Committee for Human Rights (CDDH);
- the Steering Committee for Equality between Women and Men (CDEG);
- the Steering Committee on the Media and New Communication Services (CDMC);
- the Consultative Committee of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (T-PD).

iii.

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

iv.

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

5.C.

Other participants

i.

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

ii.

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

iii.

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

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

5.D.

Observers

The following non-member state and non-governmental organisation may send representatives to meetings of the Committee, without the right to vote or defrayal of expenses9:

- Belarus[**];

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

6.

Working Methods and Structures

The Bureau of the Committee comprises six members.

To obtain and share information the CDCJ may engage, where necessary, within its budgetary limits, have recourse to the services of consultants or scientific experts and organise hearings, seminars, conferences and colloquies.

7.

Duration

The present terms of reference will expire on 31 December 2011.

Appendix VI

Draft Terms of Reference of the Committee of Experts on Family law (CJ-FA) for 2011

Name of Committee

Committee of Experts on Family Law (CJ-FA)

Compliance with Resolution Res(2005)47

YES

Programme

Development of Common Standards and Policies (Rule of Law / Strengthening the Rule of Law and Developing Common Standards)

Relevance

Third Summit Action Plan Chapters:
Chapter I.3 - “Strengthening democracy, good governance and the rule of law in member states”, concerning the need to continue to develop family law as a focus point of the Council of Europe;
Chapter III.2 - “Building a Europe for children”.

Contribution to core values:
The Council of Europe has contributed through its Committee of Experts on Family Law (CJ-FA) to the development of family law and children’s rights and standard-setting activities in this area, as well as the enhancement of the rule of law;
Any future work in this area will build on the provisions of the European Convention on Human Rights, and in particular its Articles 6, 8, 12 and 14;
Enhancing the rights and legal status of children being brought up in various forms of marital and non-marital partnerships.

Political justification/framework:
The Council of Europe in the specific field of family law has produced a number of legal instruments, which are a force in themselves. In addition, reference to these instruments is made in an increasing number of judgments of the European Court of Human Rights.
Programme “Building a Europe for and with children 2009-2011”, including the Stockholm Strategy adopted by the Committee of Ministers on 27 November 2008.

Consolidation, promotion, implementation of Council of Europe standards:
The CJ-FA will complete the drafting of one or more new legal instrument(s) on the rights and legal status of children and parental responsibilities, based on the Study on Rights and legal status of children being brought up in various forms of marital and non-marital partnerships, and many existing Council of Europe’s standards. It may also reveal needs to fill other legal lacunae in this field.

Added Value

The CJ-FA is entrusted with drafting new legal standards in the field of children’s rights and parental responsibilities. The Council of Europe is the only pan-European organisation with a mandate for preparing legal standards in family law. The CJ-FA’s work is therefore of particular importance in respect of children and families.

The CJ-FA works in close co-operation particularly with the European Union, International Commission on Civil Status (ICCS) and the Hague Conference on Private International Law (HCCH), and it is careful to avoid any duplication of work.

Financial Information

In 2011:
- Two meetings of three days on rights and legal status of children and parental responsibilities:
Travel and subsistence expenses for 9 members: 18600 €
Travel and subsistence expenses for 1 consultant/scientific expert: 2200 €
covered by the budget of the Committee, ie in total: 20 800€
- Interpretation: 12 134€
- Translation: 6 000€
Total estimated budget for 2011: 38 934€

Draft terms of reference of the Committee of Experts on Family Law (CJ-FA)

1.

Name of Committee:

Committee of Experts on Family Law (CJ-FA)

2.

Type of Committee:

Committee of Experts

3.

Source of terms of reference:

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

4.

Terms of reference:

-

-

-

-

-

Having regard to:

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

the Declaration and Action Plan of the Third Summit of the Heads of State and Government of the Council of Europe (Warsaw, 16-17 May 2005), in particular Chapter I.3 - “Strengthening democracy, good governance and the rule of law in member states”, concerning the need to continue to develop family law as a focus point of the Council of Europe, and Chapter III.2 - “Building a Europe for children”;

The Action Plan of the CDCJ for 2011 (CDCJ (2010)15rev);

Council of Europe texts and legal instruments in the field of family law, in particular:
· European Convention on the Adoption of Children (revised) – ETS No. 202;
· Convention on Contact Concerning Children – ETS No. 192;
· European Convention on the Exercise of Children’s Rights – ETS No. 160;
· European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children – ETS No. 105;
· European Convention on the on the Legal Status of Children born out of Wedlock – ETS No. 85;
· Recommendation No. R (84) 4 on parental responsibilities;
· White paper on principles concerning the establishment and legal consequences of parentage (CJ-FA (2006)4);

the United Nations 1989 Convention on the Rights of the Child.

 

Under the authority of the European Committee on Legal Co-operation (CDCJ), and in relation with the implementation of the programme Development of Common Standards and Policies (Rule of Law / Strengthening the Rule of Law and Developing Common Standards) of the [Draft] Council of Europe Programme and Budget 2011, the Committee is instructed to:

i.

pursue the drafting of one or more legal instrument(s) on the rights and legal status of children and parental responsibilities;

ii.

identify priority areas for new standards and co-operation activities in the area of family law, if necessary with the preparation of feasibility studies.

5.

Composition of the Committee:

5.A.

Members

 

Governments of member states are entitled to appoint representatives of the highest possible rank in the field of family law.

 

The Council of Europe budget will bear the travel and subsistence expenses for nine members designated by the following member states: Austria, France, Georgia, Germany, Greece, Italy, The Netherlands, Norway and the Slovak Republic.

 

Representatives appointed by other member states may participate in the meetings of the Committee at the expense of these states.

5.B.

Participants

i.

The Steering Committee on Bioethics (CDBI) may send a representative to meetings of the Committee, without the right to vote and at the charge of the corresponding Council of Europe budget sub-head.

ii.

The following committees and ad hoc groups may each send a representative to meetings of the Committee, without the right to vote and at the charge of the corresponding Council of Europe budget sub-head: the European Committee for Social Cohesion (CDCS) and the Ad hoc Advisory Group on children’s rights and social services (CS-S-CRS).

iii.

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

iv.

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

5.C.

Other participants

i.

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

ii.

The following states with observer status with the Council of Europe may send a representative to meetings of the Committee, without the right to vote or defrayal of expenses:
- Canada
- Holy See
- Japan
- Mexico
- United States of America.

iii.

The following intergovernmental organisations may send a representative to meetings of the Committee, without the right to vote or defrayal of expenses:
- Hague Conference on Private International Law (HCCH);
- International Commission on Civil Status (ICCS);
- International Institute for the Unification of Private Law (UNIDROIT);
- United Nations Children’s Fund (UNICEF);
- UN Office of the High Commissioner for Human Rights (OHCHR).

5.D.

Observers

 

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

- Belarus;
- International Social Service (ISS);
- The European Network of Ombudspersons for Children (ENOC);
- The International Association of Youth and Family Judges and Magistrates (IAYFJM).

6.

Working Methods and Structures

 

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

Where necessary, in order to expedite the progress of its work, the Committee may entrust a limited number of its members with a specific task to be fulfilled by its next meeting.

Relevant work could be carried out in consultation with other appropriate bodies, committees and entities of the Council of Europe, within budgetary appropriations.

7.

Duration

 

These terms of reference will expire on 31 December 2011.

Appendix VII

Draft Terms of Reference of the Group of Specialists on the role of Public Prosecutors outside the Criminal Field (CJ-S-PR) for 2011

Name of Committee

Group of Specialists on the role of Public Prosecutors outside the Criminal Field (CJ-S-PR)

Compliance with Resolution Res(2005)47

YES.

Programme

Development of Common Standards and Policies (Rule of Law / Strengthening the Rule of Law and Developing Common Standards)

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 Chapter I.3 concerning the “Strengthening democracy, good governance and the rule of law in member states”;
2. Opinion No. 3 of the Consultative Council of European Prosecutors (CCPE) on the "Role of prosecution services outside the criminal field";
3. The Decision of the Committee of Ministers (on 17 June 2009 at the 1061st meeting - item 10.3) to transmit the Opinion to the European Committee on Legal Co-operation (CDCJ) and to request the CDCJ to provide it with proposals for its consideration concerning a follow-up to the Opinion, in particular with respect to the proposal to draft common European principles on, notably, the status, powers and practice of public prosecutors outside the criminal law field;
4. Resolution No. 3 of the 29th Council of Europe Conference of Ministers of Justice (17-19 June 2009, Tromsø, Norway) on Council of Europe action to promote the rule of law;
5. The European Convention on Human Rights and the relevant case-law of the European Court of Human Rights;
6. Recommendation CM/Rec. (2000)19 on the role of the public prosecution in the criminal justice system and Conclusions of the Conference of Prosecutors General of Europe;
7. Recommendation 1604 (2003) of the Parliamentary Assembly about the role of the public prosecutor’s office in a democratic society governed by the rule of law;
8. Memorandum of Understanding between the Council of Europe and the European Union signed in May 2007.

Added Value

The work carried out by the Group of Specialists shall permit to:
- fill in a normative gap and address an issue which has never been specifically targeted by Council of Europe standards so far, while quite common in a large number of member states: the status, powers and practice of public prosecutors outside the criminal law field;
- integrate the relevant case-law of the European Court of Human Rights with a view to ensuring full compliance of such activities with human rights and the rule of law.

Financial Information

9 days of meetings, over 3 meetings x 9 members
Travel and subsistence expenses for 8 specialists and 1 Chairperson: 27 300 € 
Interpretation: 17 175 € for 3 meetings
Consultant: 4 000 € (travel and subsistence expenses for the 3 meetings of the Group and for his/her participation in 1 day of the CDCJ Plenary)
Estimated total annual budget (without recharged services) = 48 475 €

Draft Terms of Reference of the Group of Specialists on the role of Public Prosecutors outside the Criminal Field (CJ-S-PR)

1.

Name of Committee:

Group of Specialists on the role of Public Prosecutors outside the Criminal Field (CJ-S-PR)

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 Action plan adopted by the Third Summit of Heads of State and Government of the Council of Europe (Warsaw, 16-17 May 2005), in particular in Chapter I.3 concerning the “Strengthening democracy, good governance and the rule of law in member states” ;

the Decision of the Committee of Ministers (on 17 June 2009 at the 1061st meeting - item 10.3) to transmit the Opinion to the European Committee on Legal Co-operation (CDCJ) and to request the CDCJ to provide it with proposals for its consideration concerning a follow-up to the Opinion, in particular with respect to the proposal to draft common European principles on, notably, the status, powers, and practice of public prosecutors outside the criminal law field;

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

Opinion no. 3 of the Consultative Council of European Prosecutors (CCPE) on the "Role of prosecution services outside the criminal field";

Resolution No. 3 of the 29th Council of Europe Conference of Ministers of Justice (17-19 June 2009, Tromsø, Norway) on Council of Europe action to promote the rule of law;

Recommendation CM/Rec(2000)19 on the role of the public prosecution in the criminal justice system and Conclusions of the Conference of Prosecutors General of Europe;

Recommendation 1604 (2003) of the Parliamentary Assembly about the role of the public prosecutor’s office in a democratic society governed by the rule of law;

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 the programme Development of Common Standards and Policies (Rule of Law / Strengthening the Rule of Law and Developing Common Standards) of the [Draft] Council of Europe Programme and Budget 2011, the Group is instructed to :

prepare a draft Recommendation on, in particular, the status, powers and practice of public prosecutors outside the criminal law field, considered in the light of the importance of the protection of human rights, fundamental freedoms, the democratic principle of separation of powers and equality of arms.

In so doing, the Group will work in close co-operation with the Steering Committee for Human Rights (CDDH), the Consultative Council of European Prosecutors (CCPE), the European Commission for the efficiency of Justice (CEPEJ) and the European Commission for Democracy through Law (known as the Venice Commission).

5.

Composition of the committee:

5.A

Members

 

The Group shall be composed of 8 specialists with a thorough knowledge of questions
relating to the functioning of judicial systems and public prosecution services, designated by the Secretary General, and be chaired by one member of the CDCJ.

The Council of Europe budget will bear the travel and subsistence expenses of the 9 above-mentioned members of the Group.

5.B

Participants

i.

ii.

iii.

iv.

v.

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:

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

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.

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.

The Venice Commission can send a representative to the meetings of the Group, without the right to vote and at the expense of its administrative budget.

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 the sending body.

5.C

Other participants

i.

The European Union and in particular EUROJUST and the European Judicial Network 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, and 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 a representative to meetings of the Group, without the right to vote or defrayal of expenses:
- Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for Security and Co-operation in Europe (OSCE) ;
- Office of the United Nations High Commissioner for Human Rights (OHCHR).

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:

- International Association of Prosecutors;
- Association «European Judges for Democracy and Liberty» (MEDEL);

- Amnesty International;
- Human Rights Watch.

6.

Structures and working methods

 

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

The CJ-S-PR is entitled 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-PR will have to request the necessary authorisation from the CDCJ for the admission of other participants and/or observers.

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

7.

Duration

 

These terms of reference will expire on 31 December 2011.

Appendix VIII

Action Plan of the European Committee on Legal Co-operation (CDCJ) for 2011

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.

In its work, the CDCJ not only guides but brings a political focus to the work carried out by the specialist groups, making it possible for governments to commit to the proposed legal instruments that have been elaborated. In this way, it plays an essential and unique role.

The CDCJ regrets that due to budgetary restrictions it will not be possible to continue some important work in 2011, for example further work on nationality and rule of law issues. The CDCJ expressed the hope that it will be able to return to these topics on which the CDCJ can play an unique and important role in the future.

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 and taking into account the limited available resources in 2011, the present document sets out the CDCJ’s Action Plan for one year (i.e. 2011), while enclosing proposals likely to pave the way for its future work.

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 2011, the CDCJ thus suggests the following priorities:

1. family law: pursue the drafting of a Recommendation on the rights and legal status of children and 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. justice and rule of law: draft a recommendation on the role of prosecutors outside the criminal sphere, on the basis of the conclusions of Opinion No. 3 (2008) of the Consultative Council of European Prosecutors (CCPE) which advised “the Committee of Ministers to consider elaborating common European principles on, in particular, the status, powers, and practice of public prosecutors outside the criminal law field. The issue should be considered in the light of the importance of the protection of human rights, fundamental freedoms, the democratic principle of the separation of powers and equality of arms.”

3. continue to examine issues and challenges arising in the field of data protection and give effect ot the work of the T-PD.

4. 30th Council of Europe Conference of Ministers of Justice (Istanbul, 24-26 November 2010) : ensure the appropriate follow-up of the relevant Resolutions.

5. reflect and take note of the results of the 4th Council of Europe Conference on Nationality, to be taken in consideration for future work.

In the field of implementation and monitoring of standards, particular attention will be paid to the promotion of the recently adopted instruments, i.e. the Guidelines on child-friendly justice and Recommendation on judges : independence, efficiency and responsibilities.

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

Appendix IX

Opinion of the European Committee on Legal Co-operation (CDCJ) on Parliamentary Assembly Recommendation 1920 (2010) – “Reinforcing the effectiveness of Council of Europe treaty law”

1. Following the adoption by the Parliamentary Assembly, on the occasion of its Session of 21 May 2010, of Recommendation 1920 (2010) – “Reinforcing the effectiveness of Council of Europe treaty law’” (Appendix I), the Committee of Ministers10 decided to send this recommendation to the European Committee on Legal Co-operation (CDCJ), for information and possible comments by 15 October 2010.

2. The CDCJ took note of this recommendation of the Parliamentary Assembly and decided to make the following comments.

3. The CDCJ welcomes the reference made by the Parliamentary Assembly to “one of the Council of Europe’s main functions[, which] is to draw up standards on human rights and the rule of law that together form a coherent body of European conventions”. The CDCJ has been working for many years to enhance and promote the rule of law and has drawn up many conventions on the subject.

4. The CDCJ takes note of the reference in the list of “core” Council of Europe treaties (appended to Resolution 1732 (2010) – “Reinforcing the effectiveness of Council of Europe treaty law”) to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108) and the Civil Law Convention on Corruption (ETS No. 174), while regretting the absence of other important Council of Europe conventions (particularly the European Convention on the Exercise of Children's Rights (ETS No. 160) and the European Convention on Nationality (ETS No. 166), to name but two). The CDCJ wishes to underline that the existence of this list does not in any way affect the legal status of the Council of Europe conventions.

5. The CDCJ takes note of the request to the Committee of Ministers in paragraph 1.4 of the Recommendation to “instruct […] the European Committee on Legal Co-operation (CDCJ) […] in close co-operation with the Council of Europe’s Legal Advice Department and the Treaty Office, to examine the binding legal instruments” within its area of authority to identify treaties that are still relevant but require updating, treaties that are obsolete and should be abrogated and treaties which have lost their relevance and have not come into force within a certain number of years of their adoption and should be withdrawn. Under its terms of reference, the CDCJ is responsible for monitoring “the functioning and implementation of the international instruments coming within its field of competence”. This exercise has already been underway for some time.

6. In this connection the CDCJ would emphasise that at its 84th plenary meeting (6-9 October 2009), it decided to review several targeted conventions within its field of competence such as those relating to intellectual property and patent, liability and administrative law. The Bureau of the CDCJ extended this process to the conventions on commercial and financial law. The reports prepared on the subject11 were presented at the plenary meeting on 11 to 14 October 2010, as the relevance of some of the conventions concerned has been questioned.

Lastly, it should be noted that the Secretary General’s proposals on Council of Europe priorities for 2011,12 included a “review of the relevance of Council of Europe conventions”, which “will provide the basis for decisions on follow-up including measures to increase the visibility and the number of parties to relevant conventions”. The CDCJ suggests that it would be wise to await the outcome of this review.

Appendix X

Opinion of the European Committee on Legal Co-operation (CDCJ) on Parliamentary Assembly Recommendations 1925 (2010) – “Readmission agreements: a mechanism for returning irregular migrants” and 1926 (2010) – “Voluntary return programmes: an effective, humane and cost-effective mechanism for returning irregular migrants”

1. Following the adoption by the Parliamentary Assembly, on the occasion of its Session of 22 June 2010, of Recommendation 1925 (2010) – “Readmission agreements: a mechanism for returning irregular migrants” (Appendix I) and Recommendation 1926 (2010) – “Voluntary return programmes: an effective, humane and cost-effective mechanism for returning irregular migrants” (Appendix II), the Committee of Ministers13 decided to send these Recommendations to the European Committee on Legal Co-operation (CDCJ), for information and possible comments by 31 October 2010.

2. The CDCJ took note of these recommendations of the Parliamentary Assembly and decided to make the following comments.

3. The CDCJ shares the Parliamentary Assembly’s concerns about the considerable number of irregular migrants in the member states of the Council of Europe and the need to adopt efficient return mechanisms which strike the right balance between the member states’ needs and the irregular migrants’ human rights. The CDCJ points out that the twenty guidelines on forced return adopted by the Committee of Ministers in May 2005 invite the member states to promote voluntary return.

4. As to readmission agreements, the CDCJ considers that human rights should guide the return decision-making process and persons should only be returned if this is consistent with international obligations.

5. The CDCJ also emphasises the need to provide irregular migrants with access to justice, particularly during the return procedure. Human rights must always be protected during this process, whether it consists of readmission or voluntary return. Return arrangements should never undermine the right to ask for asylum or protection.

6. In this connection, the CDCJ refers14 to the follow-up to Resolution No. 1 on access to justice for migrants and asylum seekers, adopted at the 28th Conference of the European Ministers of Justice in Lanzarote (25 and 26 October 2007). A report on this subject was drawn up in 2009 by Jeremy McBride15, and the CDCJ has submitted draft terms of reference to the Committee of Ministers for a Group of Specialists on access to justice for migrants and asylum seekers to be appointed to prepare a draft recommendation on the issue.

7. The CDCJ also points out16 that particular protection must be afforded to children in this connection to ensure that appropriate legal safeguards are both in place and implemented, as mentioned in Resolutions 1741 (2010) and 1742 (2010). The guidelines currently being drawn up on child-friendly justice recommend special protection and assistance for the most vulnerable children including refugee, migrant, asylum seeking and unaccompanied children.

8. The CDCJ furthermore underlines that in the current state of budgetary restrictions which affects its activities, it will not be in a position to follow-up on issues which exceed the priorities set out in its action plan.

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.

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

3 35 participants: 16 women, 19 men.

4 The draft terms of reference will be examined by the Rapporteur Group on Programme, Budget and Administration (GR-PBA) at its meeting on 4 November 2010.

5 0 vote against, 3 abstentions, 25 votes in favour

    § Abstentions: Norway, Slovak Republic, Switzerland.
    § Delegations which voted in favour of the draft Recommendation are: Albania, Armenia, Belgium, Bulgaria, Croatia, Czech Republic, Denmark, Finland, France, Georgia, Germany, Greece, Ireland, Latvia, Lithuania, Moldova, Netherlands, Portugal, Romania, Russian Federation, Serbia, Slovenia, Sweden, Ukraine, United Kingdom.
    § Finland underlined that a Declaration related to the application of Para. 66 to 68 of the Recommendation would be presented before the Committee of Ministers.
    § Norway considered making a reservation to the application of Para. 68 in the Committee of Ministers.
    § Sweden underlined that a Declaration related to the application of Para. 66 to 70 of the Recommendation would be presented before the Committee of Ministers.

6 0 vote against, 2 abstentions, 22 votes in favour

    § Abstentions: Azerbaijan, Russian Federation.
    § Delegations which voted in favour of the draft Recommendation are: Armenia, Belgium, Bulgaria, Croatia, Czech Republic, Finland, France, Germany, Greece, Ireland, Latvia, Lithuania, Moldova, Netherlands, Norway, Portugal, Romania, Serbia, Slovenia, Sweden, Ukraine, United Kingdom.

7 0 vote against, 2 abstentions, 22 votes in favour

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

8 On 14 October 2010, signed by 16 states, 13 of them being Council of Europe member states.

9 Subject to specific rules applicable to state marked **.

10 1087th meeting, 9 June 2010.

11 Memorandum on targeted conventions: CDCJ(2010)8 rev. (intellectual property and patent, liability) and CDCJ(2010)18 (commercial and financial law).

12 Document CM(2010)42 rev.

13 1090th meeting, 7 July2010.

14 CDCJ-BU(2010)20 – Opinion on Assembly Resolution 1917 (2010) “Migrants and refugees: a continuing challenge for the Council of Europe”.

15 J. McBride, Access to justice for migrants and asylum seekers in Europe, Council of Europe Publishing, 2009.

16 CDCJ-BU(2010)20 – Opinion on Assembly Resolution 1917 (2010) “Migrants and refugees: a continuing challenge for the Council of Europe”.


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