Ministers’ Deputies
CM Documents

CM(2011)13       13 January 20111

1106 Meeting, 16 February 2011
4 Human rights

4.1 Steering Committee for Human Rights (CDDH)
a. Abridged report of the 71st meeting (Strasbourg, 2-5 November 2010)
b. Draft Guidelines of the Committee of Ministers on eradicating impunity for serious human rights violations

Item to be prepared by the GR-H at its meeting of 3 February 2011

BRIEF FOREWORD

1. The Steering Committee for Human Rights (CDDH) held its 71st meeting in Strasbourg from 2 to 5 November 2010. The agenda appears in Appendix 1. At this meeting, the gender balance among participants was as follows: 49% men and 51% women.

2. The CDDH invited the Committee of Ministers:

a. to take note of the work undertaken on follow-up to the Interlaken Declaration and of the CDDH Final Report on measures that result from the Interlaken Declaration that do not require amendment of the European Convention on Human Rights;2

b. to take note of the progress of the work on the accession of the European Union to the European Convention on Human Rights (see Appendix 2);

c. to adopt the draft Guidelines of the Committee of Ministers on eradicating impunity for serious human rights violations (see Appendix 3);

d. to take note of its opinions on Parliamentary Assembly Recommendations (see Appendix 4);

e. to take note of the CDDH’s exchange of views with the President of the European Court of Human Rights at the occasion of the 60th anniversary of the European Convention on Human Rights (see Appendix 5);

f. to take note of the calendar of CDDH meetings and of those of the bodies answerable to it for 2011 (see Appendix 6);

g. in the light of decisions a.-f. above, to take note of the abridged report of the 71st meeting of the CDDH as a whole, as it appears in document CM(2011)13.

Appendix 1

Agenda

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

2. Recommendations of the Parliamentary Assembly and other texts communicated to the CDDH by the Committee of Ministers

    2.1 Recommendations of the Parliamentary Assembly
    2.2 Draft Committee of Ministers’ Resolution on member states’ duty to respect and protect the right of individual application to the European Court of Human Rights

3. Exchange of views with invited key figures

4. Current activities

    4.1 Interlaken follow-up

      4.1.1 Reform of the Court (DH-GDR)
      4.1.2 Improvement of Procedures (DH-PR)
      4.1.3 Simplified Amendment Procedure (DH-PS)

    4.2 Accession of the European Union to the European Convention on Human Rights (CDDH-UE)
    4.3 Development of Human Rights (DH-DEV)
    4.4 Impunity (DH-I)
    4.5 National minorities (DH-MIN)

5. Terms of reference of bodies answerable to the CDDH

6. Experts representing the CDDH in other bodies

7. Guest speakers to be invited to future meetings

8. Future activities

    8.1 Council of Europe Convention on Access to Official Documents
    8.2 30th Council of Europe Conference of Ministers of Justice (Istanbul, Turkey,
    24-26 November 2010)

    8.3 60th anniversary of the ECHR (4 November 2010)
    8.4 Possible Additional Protocol to the Convention on Human Rights and Biomedicine
    8.5 Possible involvement of the CDDH in follow-up work to the Joint CoE / UN study on trafficking in organs, tissues and cells and trafficking in human beings for the purpose of the removal of organs

9. Elections

10. Calendar of meetings

11. Publications

12. Other business

Appendix 2

Extract from the meeting report of the CDDH

“4.2 Accession of the European Union to the European Convention on Human Rights (CDDH-UE)

[…]

32. The CDDH had an exchange of views with Ms Tonje MEINICH (Norway), Chairperson of the Informal Working Group on the Accession of the European Union to the European Convention on Human Rights (CDDH-UE), with a view to discuss and provide guidance on ongoing and future work of the Group. The Chairperson of the CDDH-UE presented the conclusions of the first three working meetings with the European Commission, underlining the very constructive spirit of these meetings on all sides.

33. As regards the general principles that should guide this work, the CDDH referred to its previous remarks and recalled in particular the principle of equality of all High Contracting Parties which should be preserved, the central role of the applicant in the system and the need that, as a result of the accession of the EU to the Convention, the rights of the applicant – particularly in the situations in which a co-respondent mechanism would apply – be preserved. It also recalled that the purpose of this work would not be to modify radically the system of the Convention, but to adapt the existing system so as to integrate the EU in it, keeping the changes to a minimum and preserving equality in the position of all participants.

34. As to the questions mentioned under Chapters A and B of the provisional list of issues to be discussed regarding the accession (General issues and Technical Adaptations to provisions of the ECHR and other instruments with respect to the EU as a contracting party), it was noted that these issues were rather technical, that consensus had emerged in the working meetings on most of them, and that they did not give rise to particular problems. The same comments were made with respect to some of the questions discussed under Chapter C of the provisional list of issues (Procedure before the European Court of Human Rights), such as the interpretation of some aspects of Articles 35 and 36 and of Article 55, and the question of inter-party cases. It was therefore agreed that the CDDH members wishing to do so provide their comments on these issues in writing to the Secretariat (nicola-daniel.cangemi@coe.int), with a view to their consideration by the Working Group at one of its next meetings with the European Commission.

35. With regard to the introduction of a co-respondent mechanism, discussion in the CDDH focused on the characteristics of such mechanism, and in particular on those issues on which specific guidance by the CDDH had been sought during the last working meeting of the CDDH-UE with the European Commission. Concerning the possibility for the European Court of Human Rights to invite a party to join the proceedings as a co-respondent or even to compel it to do so, those delegations which expressed their opinion on this issue took the view that the Court should be able, in the interest of proper administration of justice, to suggest a party to join the proceedings as co-respondent, but that imposing a party to do so against its own will would give the Court a power that it does not currently have. With respect to the issue of the Court judgments in cases involving co-respondents, the CDDH discussed the various alternatives presented in paragraphs 21 and 22 of document CDDH-UE(2010)14. Several delegations noted that the Court should remain, in principle, free to develop its practice as regards the allocation of responsibility between respondents and co-respondents in this respect. Some delegations noted in this respect the possible use of joint submissions to the Court by the respondent and the co-respondent on their opinion about the allocation of responsibility. It was recalled that in some cases a joint allocation of responsibility may indeed be the most appropriate solution in order to avoid entering into the question of the distribution of competences between the EU and its member states, but also that judgments should always seek to identify the act which is at the origin of a violation. The CDDH noted that on these issues, as well as on a number of other aspects of the functioning of the co-respondent mechanism, further discussion would be needed in order to clarify them and to reach consensus.

36. The CDDH noted that the next working meeting of the CDDH-UE with the European Commission would focus on the co-respondent mechanism and on issues under chapter D of the provisional list (institutional and financial issues), that the 5th meeting, to be held on 25-28 January 2011, would be dedicated to the remaining issues (including the possible procedural means guaranteeing the prior involvement of the Court of Justice of the European Union in cases in which it has not had the opportunity to pronounce on compatibility of an EU act with fundamental rights), and that at the 6th meeting, to be held on 15-18 March 2011, a first complete draft of the accession instrument could be discussed. The CDDH agreed that at its 72nd meeting it will dedicate one entire day to the discussion of the draft accession agreement, and that on the basis of the outcome of this discussion it will decide whether additional meetings of the CDDH-EU with the Commission and an extraordinary meeting of the CDDH would be necessary to finalise this work within the deadline set by the Committee of Ministers (30 June 2011).

37. The Chair of the CDDH summed up the discussion welcoming the work done so far by the CDDH-EU and noting that the work on this issue seems to be on the right track, taking into account its complexity. Recalling the need to ensure a continuous flow of information between the CDDH and the CDDH-UE, all members and observers were invited to submit their possible comments or contributions in writing, via the Secretariat (nicola-daniel.cangemi@coe.int), to the Working Group for consideration. As to the possibility of a specific exchange of views with representatives of civil society, it was agreed that the CDDH-UE will discuss this issue at its next meeting.

38. The CDDH also proceeded to the election of one new member of the group to replace one outgoing member (see item 9 below).

[…]

58. The CDDH also elected Ms Ivana JELIC (Montenegro) as a new member of the Informal Working Group on the Accession of the European Union to the European Convention on Human Rights (CDDH-UE), i.e. to a post which became vacant after one expert had announced that he would not be able to participate in the work of the informal group any more. The CDDH thanked the outgoing member of the group.”

Appendix 3

Draft Guidelines of the Committee of Ministers of the Council of Europe on eradicating impunity for serious human rights violations

(Adopted by the Committee of Ministers on … 2011
at the … meeting of the Ministers’ Deputies)

Preamble

The Committee of Ministers,

Recalling that those responsible for acts amounting to serious human rights violations must be held to account for their actions;

Considering that a lack of accountability encourages repetition of crimes, as perpetrators and others feel free to commit further offences without fear of punishment;

Recalling that impunity for those responsible for acts amounting to serious human rights violations inflicts additional suffering on victims;

Considering that impunity must be fought as a matter of justice for the victims, as a deterrent to prevent new violations, and to uphold the rule of law and public trust in the justice system, including where there is a legacy of serious human rights violations;

Considering the need for states to co-operate at the international level in order to put an end to impunity;

Reaffirming that it is an important goal of the Council of Europe to eradicate impunity throughout the continent, as the Parliamentary Assembly recalled in its Recommendation 1876 (2009) on the state of human rights in Europe: the need to eradicate impunity, and that its action may contribute to worldwide efforts against impunity;

Bearing in mind the European Convention on Human Rights (ETS No. 5, hereinafter “the Convention”), in the light of the relevant case law of the European Court of Human Rights (the Court), as well as the standards of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and other relevant standards established within the framework of the Council of Europe;

Stressing that the full and speedy execution of the judgments of the Court is a key factor in combating impunity;

Bearing in mind the Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity of the United Nations Commission on Human Rights;

Recalling the importance of the right to an effective remedy for victims of human rights violations, as contained in numerous international instruments – notably in Article 13 of the Convention, Article 2 of the United Nations International Covenant on Civil and Political Rights and Article 8 of the Universal Declaration on Human Rights – and as reflected in the United Nations General Assembly’s Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law;

Having regard to the Council of Europe Committee of Ministers Recommendation Rec(2006)8 to member states on assistance to crime victims of 14 June 2006, and the United Nations General Assembly’s Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power;

Bearing in mind the need to ensure that, when fighting impunity, the fundamental rights of persons accused of serious human rights violations, as well as the rule of law, are respected,

Adopts the following guidelines and invites member states to implement them effectively and ensure that they are widely disseminated, and where necessary translated, in particular among all authorities responsible for the fight against impunity.

I. The need to combat impunity

1. These guidelines address the problem of impunity in respect of serious human rights violations. Impunity arises where those responsible for acts that amount to serious human rights violations are not brought to account.

2. When it occurs, impunity is caused or facilitated notably by the lack of diligent reaction of institutions or state agents to serious human rights violations. In these circumstances, faults might be observed within state institutions, as well as at each stage of the judicial or administrative proceedings.

3. States are to combat impunity as a matter of justice for the victims, as a deterrent with respect to future human rights violations and in order to uphold the rule of law and public trust in the justice system.

II. Scope of the guidelines

1. These guidelines deal with impunity for acts or omissions that amount to serious human rights violations and which occur within the jurisdiction of the state concerned.

2. They are addressed to states, and cover the acts or omissions of states, including those carried out through their agents. They also cover states’ obligations under the Convention to take positive action in respect of non-state actors.

3. For the purposes of these guidelines, “serious human rights violations” concern those acts in respect of which states have an obligation under the Convention, and in the light of the Court’s case law, to enact criminal law provisions. Such obligations arise in the context of the right to life (Article 2 of the Convention), the prohibition of torture and inhuman or degrading treatment or punishment (Article 3 of the Convention), the prohibition of forced labour and slavery (Article 4 of the Convention) and with regard to certain aspects of the right to liberty and security (Article 5, paragraph 1, of the Convention) and of the right to respect for private and family life (Article 8 of the Convention). Not all violations of these articles will necessarily reach this threshold.

4. In the guidelines, the term “perpetrators” refers to those responsible for acts or omissions amounting to serious human rights violations.

5. In the guidelines, the term “victim” refers to a natural person who has suffered harm, including physical or mental injury, emotional suffering or economic loss, caused by a serious human rights violation. The term “victim” may also include, where appropriate, the immediate family or dependants of the direct victim. A person shall be considered a victim regardless of whether the perpetrator of the violation is identified, apprehended, prosecuted or convicted, and regardless of the familial relationship between the perpetrator and the victim.

6. These guidelines complement and do not replace other standards relating to impunity. In particular, they neither replicate nor qualify the obligations and responsibilities of states under international law, including international humanitarian law and international criminal law, nor are they intended to resolve questions as to the relationship between international human rights law and other rules of international law. Nothing in these guidelines prevents states from establishing or maintaining stronger or broader measures to fight impunity.

III. General measures for the prevention of impunity

1. In order to avoid loopholes or legal gaps contributing to impunity:

- States should take all necessary measures to comply with their obligations under the Convention to adopt criminal law provisions to effectively punish serious human rights violations through adequate penalties. These provisions should be applied by the appropriate executive and judicial authorities in a coherent and non-discriminatory manner.

- States should provide for the possibility of disciplinary proceedings against state officials.

- In the same manner, states should provide a mechanism involving criminal and disciplinary measures in order to sanction behaviour and practice within state authorities which lead to impunity for serious human rights violations.

2. States – including their officials and representatives – should publicly condemn serious human rights’ violations.

3. States should elaborate policies and take practical measures to prevent and combat an institutional culture within their authorities which promotes impunity. Such measures should include:

- promoting a culture of respect for human rights and systematic work for the implementation of human rights at the national level;
- establishing or reinforcing appropriate training and control mechanisms;
- introducing anti-corruption policies;
- making the relevant authorities aware of their obligations, including taking necessary measures, with regard to preventing impunity, and establishing appropriate sanctions for the failure to uphold those obligations;
- conducting a policy of zero-tolerance of serious human rights violations;
- providing information to the public concerning violations and the authorities’ response to these violations;
- preserving archives and facilitating appropriate access to them through applicable mechanisms.

4. States should establish and publicise clear procedures for reporting allegations of serious human rights violations, both within their authorities and for the general public. States should ensure that such reports are received and effectively dealt with by the competent authorities.

5. States should take measures to encourage reporting by those who are aware of serious human rights violations. They should, where appropriate, take measures to ensure that those who report such violations are protected from any harassment and reprisals.

6. States should establish plans and policies to counter discrimination that may lead to serious human rights violations and to impunity for such acts and their recurrence.

7. States should also establish mechanisms to ensure the integrity and accountability of their agents. States should remove from office individuals who have been found, by a competent authority, to be responsible for serious human rights violations or for furthering or tolerating impunity. States should notably develop and institutionalise codes of conduct.

IV. Safeguards to protect persons deprived of their liberty from serious human rights violations

1. States must provide adequate guarantees to persons deprived of their liberty by a public authority, in order to prevent any unlawful detention or ill-treatment, and ensure that any unlawful detention or ill-treatment does not go unpunished. In particular, persons deprived of their liberty should be provided with the following guarantees:

- the right to inform, or to have informed, a third party of his or her choice of their deprivation of liberty, their location and of any transfers;
- the right to have access to a lawyer;
- the right to have access to a medical doctor.

Persons deprived of their liberty should be expressly informed without delay about all their rights, including those listed above. Any possibility for the authorities to delay the exercise of one of these rights, in order to protect the interests of justice or public order, should be clearly defined by law, and its application should be strictly limited in time and subject to appropriate procedural safeguards.

2. In addition to the rights listed above, persons deprived of their liberty are entitled to take court proceedings through which the lawfulness of their detention shall be speedily decided and release ordered if that detention is not lawful. Persons arrested or detained in relation to the commission of an offence must be brought promptly before a judge, and they have the right to receive a trial within a reasonable time or to be released pending trial, in accordance with the Court’s case law.

3. States should take effective measures to safeguard against the risk of serious human rights violations by the keeping of records concerning the date, time and location of persons deprived of their liberty, as well as other relevant information concerning the deprivation of liberty.

4. States must ensure that officials carrying out arrests or interrogations or using force can be identified in any subsequent criminal or disciplinary investigations or proceedings.

V. The duty to investigate

1. Combating impunity requires that there be an effective investigation in cases of serious human rights violations. This duty has an absolute character.

The right to life (Article 2 of the Convention)
The obligation to protect the right to life requires, inter alia, that there should be an effective investigation when individuals have been killed, whether by state agents or private persons, and in all cases of suspicious death. This duty also arises in situations in which it is uncertain whether or not the victim has died, and there is reason to believe the circumstances are suspicious, such as in the case of enforced disappearances.

The prohibition of torture and inhuman or degrading treatment or punishment (Article 3 of the Convention)
States are under a procedural obligation arising under Article 3 of the Convention to carry out an effective investigation into credible claims that a person has been seriously ill-treated, or when the authorities have reasonable grounds to suspect that such treatment has occurred.

The prohibition of slavery and forced labour (Article 4 of the Convention)
The prohibition of slavery and forced labour entails a procedural obligation to carry out an effective investigation into situations of potential trafficking in human beings.

The right to liberty and security (Article 5 of the Convention)
Procedural safeguards derived, inter alia, from the right to liberty and security require that states conduct effective investigations into credible claims that a person has been deprived of his or her liberty and has not been seen since.

The right to respect for private and family life (Article 8 of the Convention)
States have a duty to effectively investigate credible claims of serious violations of the rights enshrined in Article 8 of the Convention where the nature and gravity of the alleged violation so requires, in accordance with the case law of the Court.

2. Where an arguable claim is made, or the authorities have reasonable grounds to suspect that a serious human rights violation has occurred, the authorities must commence an investigation on their own initiative.

3. The fact that the victim wishes not to lodge an official complaint, later withdraws such a complaint or decides to discontinue the proceedings does not absolve the authorities from their obligation to carry out an effective investigation, if there are reasons to believe that a serious human rights violation has occurred.

4. A decision either to refuse to initiate or to terminate investigations may be taken only by an independent and competent authority in accordance with the criteria of an effective investigation as set out in Guideline VI. It should be duly reasoned.

5. Such decisions must be subject to appropriate scrutiny and be generally challengeable by means of a judicial process.

VI. Criteria for an effective investigation

In order for an investigation to be effective, it should respect the following essential requirements:

Adequacy
The investigation must be capable of leading to the identification and punishment of those responsible. This does not create an obligation on states to ensure that the investigation leads to a particular result, but the authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident.

Thoroughness
The investigation should be comprehensive in scope and address all of the relevant background circumstances, including any racist or other discriminatory motivation. It should be capable of identifying any systematic failures that led to the violation. This requires the taking of all reasonable steps to secure relevant evidence, such as identifying and interviewing the alleged victims, suspects and eyewitnesses; examination of the scene of the alleged violation for material evidence; and the gathering of forensic and medical evidence by competent specialists. The evidence should be assessed in a thorough, consistent and objective manner.

Impartiality and independence
Persons responsible for carrying out the investigation must be impartial and independent from those implicated in the events. This requires that the authorities who are implicated in the events can neither lead the taking of evidence nor the preliminary investigation; in particular, the investigators cannot be part of the same unit as the officials who are the subject of the investigation.

Promptness
The investigation must be commenced with sufficient promptness in order to obtain the best possible amount and quality of evidence available. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities may generally be regarded as essential in maintaining public confidence in the maintenance of the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. The investigation must be completed within a reasonable time and, in all cases, be conducted with all necessary diligence.

Public scrutiny
There should be a sufficient element of public scrutiny of the investigation or its results to secure accountability, to maintain public confidence in the authorities’ adherence to the rule of law and to prevent any appearance of collusion in or tolerance of unlawful acts. Public scrutiny should not endanger the aims of the investigation and the fundamental rights of the parties.

VII. Involvement of victims in the investigation

1. States should ensure that victims may participate in the investigation and the proceedings to the extent necessary to safeguard their legitimate interests through relevant procedures under national law.

2. States have to ensure that victims may, to the extent necessary to safeguard their legitimate interests, receive information regarding the progress, follow-up and outcome of their complaints, the progress of the investigation and the prosecution, the execution of judicial decisions and all measures taken concerning reparation for damage caused to the victims.

3. In cases of suspicious death or enforced disappearances, states must, to the extent possible, provide information regarding the fate of the person concerned to his or her family.

4. Victims may be given the opportunity to indicate that they do not wish to receive such information.

5. Where participation in proceedings as parties is provided for in domestic law, states should ensure that appropriate public legal assistance and advice be provided to victims, as far as necessary for their participation in the proceedings.

6. States should ensure that, at all stages of the proceedings when necessary, protection measures are put in place for the physical and psychological integrity of victims and witnesses. States should ensure that victims and witnesses are not intimidated, subject to reprisals or dissuaded by other means from complaining or pursuing their complaints or participating in the proceedings. These measures may include particular means of investigation, protection and assistance before, during or after the investigation process, in order to guarantee the security and dignity of the persons concerned.

VIII. Prosecutions

1. States have a duty to prosecute where the outcome of an investigation warrants this. Although there is no right guaranteeing the prosecution or conviction of a particular person, prosecuting authorities must, where the facts warrant this, take the necessary steps to bring those who have committed serious human rights violations to justice.

2. The essential requirements for an effective investigation as set out in Guidelines V and VI also apply at the prosecution stage.

IX. Court proceedings

1. States should ensure the independence and impartiality of the judiciary in accordance with the principle of separation of powers.

2. Safeguards should be put in place to ensure that lawyers, prosecutors and judges do not fear reprisals for exercising their functions.

3. Proceedings should be concluded within a reasonable time. States should ensure that the necessary means are at the disposal of the judicial and investigative authorities to this end.

4. Persons accused of having committed serious human rights violations have the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

X. Sentences

While respecting the independence of the courts, when serious human rights violations have been proven, the imposition of a suitable penalty should follow. The sentences which are handed out should be effective, proportionate and appropriate to the offence committed.

XI. Implementation of domestic court judgments

Domestic court judgments should be fully and speedily executed by the competent authorities.

XII. International co-operation

International co-operation plays a significant role in combating impunity. In order to prevent and eradicate impunity, states must fulfil their obligations, notably with regard to mutual legal assistance, prosecutions and extraditions, in a manner consistent with respect for human rights, including the principle of “non-refoulement”, and in good faith. To that end, states are encouraged to intensify their co-operation beyond their existing obligations.

XIII. Accountability of subordinates

While the following of orders or instructions from a superior may have a bearing on punishment, it may not serve as a circumstance precluding accountability for serious human rights violations.

XIV. Restrictions and limitations

States should support, by all possible means, the investigation of serious human rights violations and the prosecution of alleged perpetrators. Legitimate restrictions and limitations on investigations and prosecutions should be restricted to the minimum necessary to achieve their aim.

XV. Non-judicial mechanisms

States should also consider establishing non-judicial mechanisms, such as parliamentary or other public inquiries, ombudspersons, independent commissions and mediation, as useful complementary procedures to the domestic judicial remedies guaranteed under the Convention.

XVI. Reparation

States should take all appropriate measures to establish accessible and effective mechanisms which ensure that victims of serious human rights violations receive prompt and adequate reparation for the harm suffered. This may include measures of rehabilitation, compensation, satisfaction, restitution and guarantees of non-repetition.

Appendix 4

Comments of the CDDH on recommendations of the Parliamentary Assembly

I. Recommendation 1920 (2010) – “Reinforcing the effectiveness of Council of Europe treaty law”

1. The Steering Committee for Human Rights (CDDH) takes notes of Recommendation 1920 (2010) of the Parliamentary Assembly on “Reinforcing the effectiveness of Council of Europe treaty law” in which the Parliamentary Assembly suggests that, notably, certain binding legal instruments be examined with a view to identifying those that are relevant but require updating, and urges the European Union to accede in particular to the European Convention on Human Rights, as provided for in the Lisbon Treaty. The Parliamentary Assembly also underlines the importance of ratification, by all member states, of certain Council of Europe treaties.

2. The CDDH draws attention to the fact that at present, the reform of the European Court of Human Rights and the accession of the European Union to the European Convention on Human Rights represent two principal activities of the CDDH and its subordinate bodies. It is expected that as a result of each, it will be necessary to amend the European Convention on Human Rights.

3. Within the framework of the ongoing work on the reform of the European Court of Human Rights and as a follow-up to the Interlaken Declaration, the CDDH has been tasked by the Committee of Ministers, inter alia, “to elaborate specific proposals for measures requiring amendment of the Convention, including proposals, with different options, for a filtering mechanism within the European Court of Human Rights and proposals for making it possible to simplify amendment of the Convention’s provisions on organisational issues”. As requested, the CDDH will submit to the Committee of Ministers an interim activity report by 15 April 2011 and a final report by 15 April 2012.

4. Concerning the accession of the European Union to the Convention, the CDDH has been tasked by the Committee of Ministers “to elaborate, in co-operation with representative(s) of the European Union to be appointed by the latter, a legal instrument, or instruments, setting out the modalities of accession of the European Union to the European Convention on Human Rights, including its participation in the Convention system; and, in this context, to examine any related issue.” To facilitate the work, the CDDH has established an informal working group on the accession of the European Union to the European Convention on Human Rights (CDDH-UE).

* * *

II. Recommendation 1925 (2010) – “Readmission agreements: a mechanism for returning irregular migrants”

1. The Steering Committee for Human Rights (CDDH) notes Recommendation 1925 (2010) of the Parliamentary Assembly on “Readmission agreements: a mechanism for returning irregular migrants” and the underlying call expressed therein that human rights of irregular migrants and asylum seekers be respected and protected in connection with negotiation and implementation of readmission agreements.

2. The CDDH wishes to draw attention to the Guidelines on human rights protection in the context of accelerated asylum procedures, prepared by it and adopted by the Committee of Ministers on 1 July 2009 at their 1062nd meeting. Although the Guidelines focus on the accelerated asylum procedure, they also contain several principles that are generally relevant to the situation of irregular migrants and asylum seekers. In particular, guideline V. deals with the safe country of origin concept, guideline VI. with the safe third country concept and guideline VII. elaborates on the principle of non-refoulement and return.

3. The CDDH also wishes to draw attention to the general principle according to which an individual can only be returned if such action is consistent with the obligations of a state arising under the Convention or other relevant international treaties, notably the Convention relating to the Status of Refugees, even if there exists a readmission agreement between the states concerned.

* * *

III. Recommendation 1932 (2010) – “Decent pensions for women”

1. The Steering Committee for Human Rights (CDDH) notes with interest Recommendation 1932 (2010) of the Parliamentary Assembly on “Decent pensions for women”, in which the Parliamentary Assembly refers to the principle of equality between men and women in the implementation of social policies and asks the Committee of Ministers to instruct its competent committee to take certain concrete steps while dealing with this issue.

2. The CDDH considers that the gap between women’s and men’s pension represents only one specific part of the broader issue of the rights of the elderly people which comprises, but is not limited to, the question of decent pensions and its gender aspect. In this connection, the CDDH draws attention to the fact that in 2002, the Second World Assembly on Ageing adopted a Second International Plan of Action on Ageing. This plan includes a number of central themes setting out goals, objectives and commitments, including gender equality among older persons.3

3. The CDDH also considers that, apart from the above-mentioned perspective of the rights of the elderly, the gap between women’s and men’s pensions should also be seen from the perspective of the general principle of equality between women and men.

4. The elderly are often victims of discrimination and abuse, being particularly threatened by poverty and loss of dignity and often deprived of the right to participate in decision-making processes and society at large. At the same time, the elderly are a group in society which is expanding, not just in number, but also in longevity. Because of increased dependency, it is the group of very old people (80 years or more) who are most vulnerable and in need of specific protection.

5. Being aware of this situation, coupled with a lack of any specific legal instrument that would set standards in this field, the CDDH has identified the promotion and protection of the rights of the elderly as one of possible priorities for its future work, subject to available funding. This work could include the gender perspective, including the issue of pensions and its gender aspect. In this connection, the CDDH notes that at the Council of Europe level, the Revised European Social Charter recognizes the right to social protection for the elderly in Article 23. However, the fact that not all Council of Europe member states are Parties to this instrument will have to be taken into account.4

* * *

IV. Recommendation 1930 (2010) – “Prohibiting the marketing and use of the “Mosquito” youth dispersal device”

1. The Steering Committee for Human Rights (CDDH) notes with interest Recommendation 1930 (2010) of the Parliamentary Assembly on “Prohibiting the marketing and use of the “Mosquito” youth dispersal device” and the information contained therein.

2. The CDDH considers that further detailed exploration of this issue is needed before any concrete conclusions can be drawn. It also considers that, as it was suggested by the Parliamentary Assembly, it is in the first place for national authorities to undertake this exploration and regulate marketing, installation and use of the device.

* * *

V. Recommendation 1933 (2010) – “Fight against extremism: achievements, deficiencies and failures”

1. The Steering Committee for Human Rights (CDDH) has examined with interest Recommendation 1933 (2010) of the Parliamentary Assembly on the “Fight against extremism: achievements, deficiencies and failures”. It takes note of the reference in the Recommendation to the Handbook on “hate speech” which was prepared within the framework of its work on the protection of human rights in multicultural societies. The aim of this work has been to provide guidance to member states on how to strike a fair balance between different rights which may be competing in a multicultural context such as freedom of expression, freedom of assembly and association, and freedom of thought, conscience and religion.

2. The Handbook on “hate speech” is based on an in-depth examination by the Committee of Experts for the Development of Human Rights (DH-DEV) of information received from member states on good practices in this field as well as the relevant case-law of the European Court of Human Rights. The Handbook was launched on the occasion of the international conference, organised in 2008 in The Hague, on “Human Rights in culturally diverse societies: challenges and perspectives”.

3. As a follow-up to The Hague Conference the Committee of Ministers adopted a “Declaration on human rights in culturally diverse societies” on 1 July 2009, elaborated under the aegis of the CDDH. The Declaration emphasises the need for resolute action against all forms of discrimination in the preservation and promotion of a democratic society based on respect for diversity, and it calls on opinion leaders, including political leaders, to speak and act resolutely in such a way as to foster a climate of respect through dialogue based on a common understanding of universally recognised human rights.

4. Bearing in mind the decision taken as to the need to give priority in its work to the follow-up to the Interlaken Ministerial Conference on the reform of the European Court of Human Rights as well as the accession of the European Union to the European Convention on Human Rights, the CDDH will consider possible further follow-up to the conclusions of the Hague Conference on the protection of human rights in multicultural societies at a later stage.

* * *

VI. Recommendation 1936 (2010) – “Human Rights and business”

1. The Steering Committee for Human Rights (CDDH) welcomes the adoption by the Parliamentary Assembly of Recommendation 1936  (2010) on “Human rights and business”.

2. In this Recommendation the Parliamentary Assembly draws attention to the need to explore ways and means to enhance the role of businesses in respecting and promoting human rights. In the CDDH’s view the proposal of the Parliamentary Assembly to elaborate a convention or an additional protocol to the European Convention on Human Rights on the topic, which would be addressed to states, would not be the most appropriate solution to the problem. On the other hand, the CDDH considers with interest other initiatives proposed, such as preparing a study, drafting a recommendation or guidelines to member states on the human rights responsibilities of businesses, or establishing a “labelling” mechanism. In fact, some of these ideas had already been discussed by the Committee of Experts on the Development of Human Rights (DH-DEV) at its last meeting in April 2010, and submitted to the CDDH when discussing its future activities and priorities at its 70th meeting in June 2010.

3. Bearing in mind the decision taken as to the need to give priority in its work to the follow-up to the Interlaken Ministerial Conference on the reform of the European Court of Human Rights as well as the accession of the European Union to the European Convention on Human Rights, the CDDH could further consider possible follow-up to the proposals made by the DH-DEV and by the PACE Recommendation on human rights and business at a later stage.

4. The CDDH notes however that there already exist several international texts in the field of corporate human rights responsibilities elaborated by other bodies such as:

- the Organisation for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises adopted in 1976, updated in 2000 and currently under revision;
- the International Labour Organisation (ILO) Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, adopted in 1977 and amended in 2000;
- the United Nations 2000 Global Compact;
- the United Nations Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights, adopted in 2003 by the United Nations Sub-Commission on Human Rights.

In this respect, it notes that possible action by the Council of Europe would need to take account of the existing standards and provide added value in respect thereof.

5. Since the human rights responsibilities of businesses also comprise responsibilities towards the environment, the CDDH also refers to the decision taken at its 70th meeting in June to update its manual of 2006 on human rights and the environment.

* * *

VII. The CDDH took note of the following recommendations:

- 1927 (2010) – “Islam, Islamism and Islamophobia in Europe”;
- 1934 (2010) – “Child abuse in institutions: ensure full protection of the victims”;
- 1939 (2010) – “Children without parental care: urgent need to action”;
- 1940 (2010) – “Gender-related claims for asylum”.

Appendix 5

Extract from the meeting report of the CDDH

ITEM 3: EXCHANGE OF VIEWS WITH INVITED KEY FIGURES

[…]

9. The President of the European Court of Human Rights, Mr Jean-Paul COSTA, made a presentation to the Committee. The text of this presentation can be found at Appendix IV [to the report of the 71st meeting of the CDDH, doc. CDDH(2010)013].

10. In the course of the ensuing exchange of views, President Costa responded as indicated below to the following issues raised by the Committee:

    - subsidiarity, including the limits of the Court’s dynamic interpretation of its jurisdiction, its role with respect to superior national courts and fuller reasoning in judgments over-ruling those of national Constitutional Courts: the Convention gave to the Court the role of final arbiter at European level on harmonised interpretation and application of the Convention, such that it could not simply approve judgments of superior domestic courts. This role, however, implied a delicate balance between too much control and too little;

    - the shared responsibility of states and the Court to ensure effective functioning of the Convention control mechanism: the Court was taking many initiatives in response to the Interlaken Declaration. It had developed and would continue to develop a range of measures, for example (in relation to repetitive applications) the pilot judgment procedure and judgments of principle and the practice of visiting concerned states to assist with the identification and implementation of appropriate responses;

    - addressing the problem of the number of new applications: many were due to applicants’ and their legal representatives’ ignorance of the admissibility criteria and the true role of the Court. The Court was developing means to provide better relevant information, including the imminent publication of a manual on admissibility. Other responses, such as fees for applicants, needed very careful assessment if they were not to undermine the right of individual petition;

    - access to the Court, in particular the question of introducing fees for applicants: opinion amongst the judges was deeply divided but in the first place, this was a matter for the States parties to decide;

    - the new “significant disadvantage” admissibility criterion introduced by Protocol No. 14: the Court had not yet had many opportunities to rule applications inadmissible on the basis of the new criterion but expected to use it increasingly in future;

    - application by the Court of the maxim de minimis non curat praetor: President Costa saw potential in greater use of the “abusive application” admissibility criterion in art. 35(3)(a);

    - publication of the Court’s tables for calculating just satisfaction: this was being considered by the Court, which was aware of the advantages and disadvantages;

    - decreasing the size of Chambers from 7 to 5 judges following a request by the Court to the Committee of Ministers: the possible consequences of such a request, including for ensuring consistency of case-law and for the Court’s overall structure, were being studied by the Court’s Interlaken follow-up committee;

    - relations between Government Agents and the Court, including institution of a regular forum for discussions, notably in relation to changes to the Rules of Court: the Court’s Rules Committee sought to consult States parties when revising the rules, but undoubtedly more could be done. There was also the issue of the Court’s relations with civil society, applicants’ representatives and Council of Europe monitoring bodies. On this point, Mr Erik FRIBERGH, Registrar of the Court, welcomed the idea of more regular meetings, which could take the form of meetings between Section Registrars and himself on the one hand and a select group of Government Agents on the other, and promised to discuss the matter further with the CDDH Chairperson;

    - the Court’s priorities amongst the possible measures set out in the Interlaken Declaration: one priority for the Court was quick introduction of a simplified procedure for amendment of certain provisions of the Convention, which should not be unnecessarily delayed;

    - whether “upgrading” provisions/ procedures such as Rule 39 on interim measures, the pilot judgment procedure and unilateral declarations should be part of work on a simplified Convention-amendment procedure: the experience of Protocol No. 11 had shown that placing too many rules in the Convention created inflexibility. The Court was of course in favour of transparency but moving, for example, Rule 39 or the pilot judgment procedure to the Convention would risk creating complication and inflexibility;

    - EU accession to the Convention, including possible provision by the Court of potential solutions to certain technical problems, the question of the respective status and role of the Strasbourg Court and the CJEU and the position of the judge elected in respect to the EU: the Court was represented in the working group and had established its own committee to follow the issue but it would be premature for it to make proposals at this stage, although it would certainly express its position before work was concluded. As to relations between the two courts, the former would remain competent to interpret the Convention and adjudicate on its application and the latter to interpret the EU treaties. The EU should be treated as much as possible as any State party, a principle which should apply also to the “EU judge”;

11. The CDDH thanked President Costa for the fruitful exchange of views.”

Appendix 6

Calendar of meetings of the CDDH and the bodies answerable to it for 2011
(As modified on 15 December 2010)

2011

 

5th meeting of the Informal Group on Accession of the EU to the Convention (CDDH-UE)

25-28 January

Opening of the Judicial Year – European Court of Human Rights

28 January

6th meeting of the Committee of experts on the Reform of the Court (DH-GDR)

9-11 February

2nd meeting of the Committee of Experts on Simplified Amendment Procedure (DH-PS)

9-11 March

6th meeting of the Informal Group on Accession of the EU to the Convention (CDDH-UE)

15-18 March

82nd meeting of the Bureau of the Steering Committee for Human Rights (CDDH-BU)

Paris, 21-22 March

72nd meeting of the Steering Committee for Human Rights (CDDH)

29 March – 1 April

Conference on the Interlaken follow-up, Izmir (Turkey)

26-27 April

121st Session of the Committee of Ministers

11 May

7th meeting of the Committee of experts on the Reform of the Court
(DH-GDR)

30 May – 1 June

8th meeting of the Committee of experts on the Reform of the Court
(DH-GDR)

7-9 September

66th meeting of the Committee of Experts for the Improvement
of Procedures for the Protection of Human Rights (DH-PR)

5-7 October

83rd meeting of the Bureau of the Steering Committee for Human Rights (CDDH-BU)

Paris, 3-4 November

73rd meeting of the Steering Committee for Human Rights (CDDH)

22-25 November

3rd meeting of the Committee of Experts on Simplified Amendment Procedure (DH-PS)

7-9 December

12th meeting of the Committee of Experts on Questions related
to the Protection of National Minorities (DH-MIN)

[…]

Meeting of the DH-DEV Group on updating the manual on human rights and the environment

[…]

Note 1 This document has been classified restricted until examination by the Committee of Ministers.
Note 2 It is recalled that the GT-SUIVI.Interlaken started its examination of the Final Report at its meeting of 15 December 2010.
Note 3 In the framework of the United Nations Programme of Ageing, the United Nations General Assembly resolved to hold the Second World Assembly in 2002 in order to assess the progress made by member states since 1982 in implementing the Vienna International Action Plan on Ageing, endorsed by the United Nations General Assembly in 1982 (resolution 37/51), this document having been adopted earlier the same year at the World Assembly on Ageing at Vienna, Austria.
Note 4 As of 24 September 2010, the Revised European Social Charter (ETS No. 163) had been signed and ratified by 30 member states.


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