Ministers’ Deputies

CM Documents

CM(2014)34      11 March 20141



1198 Meeting, 30 April 2014

10 Legal questions

10.1 European Committee on Legal Co-operation (CDCJ) –

a. Abridged report of the 88th meeting (Strasbourg, 16-18 December 2013)

b. Draft Recommendation CM/Rec(2014)… of the Committee of Ministers to member States on the protection of whistleblowers

Item to be prepared by the GR-J at its meeting on 1 April 2014



Introduction

The European Committee on Legal Co-operation (CDCJ) held its 88th meeting in Strasbourg on 16-18 December 2013. The meeting was chaired by Mr Eberhard Desch (Germany), chairperson of CDCJ. The agenda, as adopted by the Committee, appears in Appendix I. The list of participants is available from the Secretariat.2

Items submitted to the Committee of Ministers for action

(i) The Committee of Ministers is invited to examine and adopt the draft recommendation on the protection of whistleblowers and take note of its explanatory memorandum (paragraphs 1-4 and Appendix II).

(ii) The CDCJ submits its comments to Parliamentary Assembly Recommendation 2023 (2013) on “Children’s right to physical integrity”, as requested by the Committee of Ministers at the 1181st meeting of the Ministers’ Deputies (paragraph 23).

Items submitted to the Committee of Ministers for information

Decisions and items discussed

A. Completed activities

Protection of whistleblowers

1. The CDCJ took note of the reports of the meetings of the enlarged Bureau responsible for preparing the draft recommendation held during the course of 2012 and 2013 and of the consultation meeting with representatives of civil society and other actors, that was held on 30-31 May 2013.

2. The CDCJ examined and approved the draft recommendation on protecting whistleblowers as it appears in Appendix II. It instructed the Secretariat to transmit the text to the Committee of Ministers, after revision by the legal and editorial services of the Secretariat, with a view to its adoption at the 1198th meeting of the Ministers’ Deputies (30 April 2014).3

3. In the light of its examination of the draft recommendation on protecting whistleblowers, the CDCJ examined and modified the explanatory memorandum to the draft recommendation. The Committee adopted the text as it appears in the addendum to this meeting report (document CDCJ(2013)31 add) and authorised its publication subject to adoption of the recommendation by the Committee of Ministers and any consequent changes that might be required.

4. Finally, the CDCJ took note of the publication of the final version of the feasibility study prepared by the consultants, Mr Paul Stephenson and Professor Michael Levi (United Kingdom).

B. On-going activities

Parental dispute resolution

5. The CDCJ took note of the progress made in the preparation of a draft recommendation on preventing and resolving parental disputes on child relocation, since the decision of the Committee of Ministers on 21 November 2012 instructing it to undertake the work. In particular, the Committee took note of the reports of the preparatory meeting (December 2012) and of the drafting group (September and November 2013), as well as of the comparative study on the law and practice relating to the relocation of children that had been prepared by the consultant, Ms Lieke Coenraad (The Netherlands).

6. The CDCJ noted that the work of the drafting group had raised complex issues, particularly as a result of the diversity of approaches to child relocation in the member States, and that as a result the drafting group had been unable to complete its work as planned. In the light of this, and in order to afford the drafting group an opportunity for proper consideration of the explanatory memorandum and to agree on any necessary final changes to the draft recommendation, the CDCJ agreed to authorise a third and final meeting of the drafting group, to take place in the first quarter of 2014.4

7. Once finalised by the drafting group after its third meeting, and in accordance with its practice, the CDCJ instructed the Secretariat to submit the draft recommendation and its explanatory memorandum to the CDCJ delegations for consultation with a view to their examination at the next plenary meeting of the Committee. Furthermore, and in preparation for the plenary meeting, the Bureau was instructed to review the texts in the light of such comments as may be made and make such proposals for revision as may be necessary.

Administrative law handbook ‘The Administration and You’

8. The CDCJ confirmed the importance of continuing the work on revising the handbook and, for this purpose, instructed the Bureau to collaborate with a drafting group comprised of three members of the committee, assisted by one or two independent experts if necessary.

C. Future activities

9. The CDCJ took note of its terms of reference for 2014-2015.

Legal regulation of lobbying activities

10. The CDCJ agreed the terms of reference for a study on the feasibility of preparing a Council of Europe instrument on the legal regulation of lobbying activities as they appear in Appendix III.

Pre-natal sex selection

11. The CDCJ took note of the information provided by the Secretariat to the Committee on Bioethics (DH-BIO) on the work to be undertaken in relation to prenatal sex selection and confirmed its readiness to support the activity. To this end, it instructed the Bureau to appoint a representative once DH-BIO had decided on the modalities for its future work.

Impact of Internet and new technologies on rules of evidence and modes of proof

12. The CDCJ agreed the terms of reference for a comparative study on the impact of the Internet and new technologies on rules of evidence and modes of proof, as they appear in Appendix IV.

Gender identity and civil registration

13. The CDCJ noted that there was no agreement on undertaking the proposed inventory and description of practical solutions, approaches and best practice in the member States in relation to gender identity and civil registration, and agreed to postpone further consideration of the proposal to a future date.

Supporting implementation of civil, private and public law standards

14. The CDCJ instructed the Bureau to consider means of how the Committee might contribute to promoting and supporting implementation of the Child-friendly justice guidelines, and take appropriate action, including participation in the Conference on the implementation of the Council of Europe Strategy for the Rights of the Child 2012-1015 entitled “Growing with Children’s Rights” (Dubrovnik, Croatia, 27-28 March 2014).

15. Subject to the adoption of the draft recommendation on protecting whistleblowers by the Committee of Ministers, the CDCJ agreed to instruct the Secretariat to commission a publication to promote awareness of the recommendation, share information on law, practice and policy in member States, and offer a greater understanding of the issues involved.

Pilot rule of law reviews

16. The CDCJ instructed the Bureau to prepare proposals, along the lines outlined in document CDCJ(2013)27, for a discussion at its next plenary meeting on the follow-up to be given by the Committee to such decisions as may be made by the Committee of Ministers on the report to be submitted by the Secretary General to the 124th Session of the Committee of Ministers (6 May 2014) on an overview of human rights, democracy and the rule of law in the member states.

Review of conventions within the competence of the CDCJ

17. The CDCJ instructed the Bureau to make proposals on how the Committee might best keep under review the Council of Europe conventions within its area of competence, as indicated in its terms of reference for 2014-15.

Preparation of the work programme for 2016-2017

18. The CDCJ instructed its Bureau to draw-up preliminary proposals for the Council of Europe Programme and Budget for 2016-2017 for consideration at the plenary meeting of the Committee in 2014. For this purpose CDCJ delegations were invited to submit possible proposals to the Secretariat before 30 March 2014.

Modern, transparent and efficient justice

19. The CDCJ recalled that, in accordance with Resolution No. 1 of the 30th Conference of Ministers of Justice (Istanbul, 24-26 November 2010), it had been invited by the Committee of Ministers to revise a number of Committee of Ministers recommendations relating, in particular, to the use of ICTs in court procedure and case management, and that as a preparatory step, the CDCJ had invited the European Commission for the Efficiency of Justice (CEPEJ) to provide it with a technical advice.

20. The CDCJ took note of the technical advice that CEPEJ had adopted at its 21st meeting (20-21 June 2013) and expressed its appreciation to the Commission for its work.

21. In view of the limited scope of the various proposals for possible revision of the recommendations cited in Resolution No. 1 of the 30th Conference of Ministers of Justice, the CDCJ decided to consider further the proposals for revision within the context of the comparative study on the Impact of the Internet and new technologies on rules of evidence and modes of proof (see paragraph 12 above).

Working methods

22. The CDCJ instructed the Bureau to review the revised descriptive document on the Committee’s working methods (document CDCJ(2013)24) in light of the exchange of views during the meeting and submit its proposals for approval at the next plenary meeting.

D. Other items discussed

Children’s right to physical integrity

23. The CDCJ adopted an opinion on Parliamentary Assembly Recommendation 2023 (2013) on ‘Children’s right to physical integrity’ and instructed the Secretariat to submit it to the Committee of Ministers.

Legislative developments in member States in the areas of public and private law

24. The CDCJ took note of the written information provided on legislative developments, including legislative proposals, in the areas of public and private law provided by Bulgaria, Germany, the Netherlands, Romania, the Slovak Republic, Turkey and the United Kingdom. The Committee thanked the respective delegations for the information and agreed on its usefulness for individual members of the Committee and relevance in identifying future activities. It instructed the Secretariat to include the information in a consolidated document and post it on the Committee’s website for easy access. It agreed that a similar process should be followed at subsequent plenary meetings.

Work of other Council of Europe bodies

25. The Secretariat presented the work of the Children’s Rights Programme and, in particular, in relation to the promotion of the Child-Friendly Justice Guidelines. The CDCJ also took note of the reports of its representatives in the work and meetings of the various bodies of the Council of Europe as posted on its website and referred to in the annotated draft agenda (document CDCJ(2013)25).

External co-operation

26. The Secretariat informed the CDCJ of its participation in the work leading to the joint publication, in October 2013, by OSCE-ODIHR and the Folke Bernadotte Academy (Sweden) of a handbook on monitoring administrative justice.

Elections and appointments

27. Mr Francesco Crisafulli (Italy) was elected as chairperson for a first term of one year.

28. Ms Zusana Fišerová (Czech Republic) was elected as vice-chairperson for a first term of one year.

29. Mr Lennart Houmann (Danemark) and Mr João Arsénio de Oliveira (Portugal) were each elected to the Bureau for second terms of two years.

30. Ms Marie-Caroline Celeyron-Bouillot (France) and Mr Mikhail Vinogradov (Russian Federation) were each elected to the Bureau for a first term of two years.

31. M. Francisco J. Forcada Miranda (Espagne) was elected to the Bureau for a first term of one year (rule Article 13.c).

32. As a result of the above-mentioned elections5, the Bureau of CDCJ is composed as follows:

Chairperson: Mr Francesco Crisafulli (Italy)

Vice-chairperson: Ms Zusana Fišerová (Czech Republic)

    Bureau members: Mr Lennart Houmann (Danemark), Ms Marie-Caroline Celeyron-Bouillot (France), Mr João Arsénio de Oliveira (Portugal), Mr Mikhail Vinogradov (Russian Federation) and Mr Francisco J. Forcada Miranda (Spain).

33. The CDCJ confirmed the appointment of Ms Zusana Fišerová (Czech Republic) as the Committee’s gender equality rapporteur.

34. The CDCJ instructed the Bureau to confirm or make such new appointments as necessary for the representatives of the Committee in the work and meetings of other Council of Europe bodies.

Date and place of next meeting

35. The CDCJ agreed to hold its next plenary meeting in Strasbourg on 29-31 October 2014.

36. Appendix I

Agenda

I. Opening of the meeting

II. Adoption of the agenda

III. Statement of the Chair and Secretariat

IV. Protection of whistleblowers (approval of draft recommendation and explanatory memorandum)

V. On-going work of the committee

VI. CDCJ opinions

VII. 2014-15 programme of activities

VIII. Work of other Council of Europe bodies

IX. Legislative developments in member states in the areas of public and private law

X. External co-operation

XI. Elections and appointments

XII. Any other business

XIII. Date and place of next meeting

Appendix II

Draft Recommendation CM/Rec(2014)… of the Committee of Ministers to member States on

the protection of whistleblowers

(adopted by the Committee of Ministers on … ,

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,

Recalling that the aim of the Council of Europe is to achieve a greater unity between its members, inter alia, for the purpose of safeguarding and realising the ideals and principles which are their common heritage;

Considering that promoting the adoption of common rules in legal matters can contribute to the achievement of the aforementioned aim;

Reaffirming that freedom of expression and the right to seek and receive information are fundamental for the functioning of a genuine democracy;

Recognising that individuals who report or disclose information on threats or harm to the public interest (“whistleblowers”) can contribute to strengthening transparency and democratic accountability;

Considering that appropriate treatment by employers and the public authorities of public interest disclosures will facilitate the taking of action to remedy the exposed threats or harm;

Bearing in mind the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5) and the relevant case law of the European Court of Human Rights, in particular in relation to Article 8 (respect for private life) and Article 10 (freedom of expression);

Bearing in mind the Council of Europe’s Programme of Action Against Corruption, the Council of Europe Criminal Law Convention on Corruption (ETS No. 173) and the Council of Europe Civil Law Convention on Corruption (ETS No. 174) and, in particular, respectively Articles 22 and 9 thereof, as well as the work carried out by the Group of States against Corruption (GRECO);

Taking note of Resolution 1729 (2010) of the Parliamentary Assembly in which the Assembly invites member States to review their legislation concerning the protection of whistleblowers bearing in mind a series of guiding principles;

Taking note of the compendium of best practices and guiding principles for legislation on the protection of whistleblowers prepared by the OECD at the request of the G20 Leaders at their Seoul Summit in November 2010;

Considering that there is a need to encourage the adoption of national frameworks in the member States for the protection of whistleblowers based on a set of common principles,

Recommends that member States have in place a normative, institutional and judicial framework to protect individuals who, in the context of their work-based relationship, report or disclose information on threats or harm to the public interest. To this end, the appendix to this recommendation sets out a series of principles to guide member States when reviewing their national laws or when introducing legislation and regulations or making amendments as may be necessary and appropriate in the context of their legal systems.

To the extent that employment relations are regulated by collective labour agreements, member States may give effect to this recommendation and the principles contained in the appendix in the framework of such agreements.

Appendix to Recommendation CM/Rec(2014)…

PRINCIPLES

Definitions

For the purposes of this recommendation and its principles:

a. “whistleblower” means any person who reports or discloses information on a threat or harm to the public interest in the context of their work-based relationship, whether it be in public or private sector;

b. “public interest report or disclosure” means the reporting or disclosing of information on acts and omissions that represent a threat or harm to the public interest;

c. “report” means reporting, either internally within an organisation or enterprise, or to an outside authority;

d. “disclosure” means making information public.

I. Material scope

1. The national normative, institutional and judicial framework, including, as appropriate, collective labour agreements, should be designed and developed to facilitate public interest reports and disclosures by establishing rules to protect the rights and interests of whistleblowers.

2. Whilst it is for member States to determine what lies in the public interest for the purposes of implementing these principles, member States should explicitly specify the scope of the national framework, which should, at least, include violations of law and human rights, as well as risks to public health and safety and to the environment.

II. Personal scope

3. The personal scope of the national framework should cover all individuals working in either the public or private sectors, irrespective of the nature of their working relationship and whether they are paid or not.

4. The national framework should also include individuals whose work-based relationship has ended and, possibly, where it is yet to begin in cases where information concerning a threat or harm to the public interest has been acquired during the recruitment process or other pre-contractual negotiation stage.

5. A special scheme or rules, including modified rights and obligations, may apply to information relating to national security, defence, intelligence, public order or international relations of the state.

6. These principles are without prejudice to the well-established and recognised rules for the protection of legal and other professional privilege.

III. Normative framework

7. The normative framework should reflect a comprehensive and coherent approach to facilitating public interest reporting and disclosures.

8. Restrictions and exceptions to the rights and obligations of any person in relation to public interest reports and disclosures should be no more than necessary and, in any event, not be such as to defeat the objectives of the principles set out in this recommendation.

9. Member States should ensure that there is in place an effective mechanism or mechanisms for acting on public interest reports and disclosures.

10. Any person who is prejudiced, whether directly or indirectly, by the reporting or disclosure of inaccurate or misleading information should retain the protection and the remedies available to him or her under the rules of general law.

11. An employer should not be able to rely on a person’s legal or contractual obligations in order to prevent that person from making a public interest report or disclosure or to penalise him or her for having done so.

IV. Channels for reporting and disclosures

12. The national framework should foster an environment that encourages reporting or disclosure in an open manner. Individuals should feel safe to freely raise public interest concerns.

13. Clear channels should be put in place for public interest reporting and disclosures and recourse to them should be facilitated through appropriate measures.

14. The channels for reporting and disclosures comprise:

- reports within an organisation or enterprise (including to persons designated to receive reports in confidence);

- reports to relevant public regulatory bodies, law enforcement agencies and supervisory bodies;

- disclosures to the public, for example to a journalist or a member of parliament.

The individual circumstances of each case will determine the most appropriate channel.

15. Employers should be encouraged to put in place internal reporting procedures.

16. Workers and their representatives should be consulted on proposals to set up internal reporting procedures, if appropriate.

17. As a general rule, internal reporting and reporting to relevant public regulatory bodies, law enforcement agencies and supervisory bodies should be encouraged.

V. Confidentiality

18. Whistleblowers should be entitled to have the confidentiality of their identity maintained, subject to fair trial guarantees.

VI. Acting on reporting and disclosure

19. Public interest reports and disclosures by whistleblowers should be investigated promptly and, where necessary, the results acted on by the employer and the appropriate public regulatory body, law enforcement agency or supervisory body in an efficient and effective manner.

20. A whistleblower who makes an internal report should, as a general rule, be informed, by the person to whom the report was made, of the action taken in response to the report.

VII. Protection against retaliation

21. Whistleblowers should be protected against retaliation of any form, whether directly or indirectly, by their employer and by persons working for or acting on behalf of the employer. Forms of such retaliation might include dismissal, suspension, demotion, loss of promotion opportunities, punitive transfers and reductions in or deductions of wages, harassment or other punitive or discriminatory treatment.

22. Protection should not be lost solely on the basis that the individual making the report or disclosure was mistaken as to its import or that the perceived threat to the public interest has not materialised, provided he or she had reasonable grounds to believe in its accuracy.

23. A whistleblower should be entitled to raise, in appropriate civil, criminal or administrative proceedings, the fact that the report or disclosure was made in accordance with the national framework.

24. Where an employer has put in place an internal reporting system, and the whistleblower has made a disclosure to the public without resorting to the system, this may be taken into consideration when deciding on the remedies or level of protection to afford to the whistleblower.

25. In legal proceedings relating to a detriment suffered by a whistleblower, and subject to him or her providing reasonable grounds to believe that the detriment was in retaliation for having made the report or disclosure, it should be for the employer to establish that the detriment was not so motivated.

26. Interim relief pending the outcome of civil proceedings should be available for persons who have been the victim of retaliation for having made a public interest report or disclosure, particularly in cases of loss of employment.

VIII. Advice, awareness and assessment

27. The national framework should be promoted widely in order to develop positive attitudes amongst the public and professions and to facilitate the disclosure of information in cases where the public interest is at stake.

28. Consideration should be given to making access to information and confidential advice free of charge for individuals contemplating making a public interest report or disclosure. Existing structures able to provide such information and advice should be identified and their details made available to the general public. If necessary, and where possible, other appropriate structures might be equipped in order to fulfil this role or new structures created.

29. Periodic assessments of the effectiveness of the national framework should be undertaken by the national authorities.

Appendix III

Feasibility study for a legal instrument on the legal regulation of lobbying activities

Terms of reference

The consultant shall:

    · Explore the feasibility for a Council of Europe legal instrument on the legal regulation of lobbying activities.

The feasibility study shall take into account information supplied by members of the European Committee on Legal Co-operation (CDCJ) on the basis of a questionnaire to be prepared by the consultant.

The consultant shall also take into account relevant documents of the Council of Europe including Parliamentary Assembly recommendations, resolutions and rapporteurs’ reports on a European code of good conduct on lobbying, on corruption as a threat to the rule of law, and on extra-institutional actors in the democratic system (as well as the report of the Venice Commission on the same subject).

The structure of the feasibility study shall be as follows:

    - Executive summary

    - Introduction

    - Sources of information

    - Comparative assessment of relevant law, policy and practice in Council of Europe member states

    - Gap analysis

    - Preliminary proposals on the principal content of a legal instrument

    - Conclusions.

Appendix IV

Comparative study on the impact of the internet and new technologies on rules of evidence and modes of proof

Terms of reference

The consultant shall:

    · Undertake a comparative study and analysis of existing national legal provisions that have been adopted or adapted to the impact of the internet and new technologies on rules of evidence and modes of proof.

    · Identify the problems that the different legal systems in the member States are faced with in this field and in respect of which they are in need of remedies or in respect of which they have found solutions.

    · Draw up proposals for solutions on the basis of approaches and best practice already adopted in member and other States with the objective of solving or at least reducing the workload of courts in dealing with electronic evidence in civil and administrative law proceedings.

The study should deal with, but not exclusively, issues relating to the admissibility of electronic evidence, the weight given to electronic evidence, the role of the judge, pre-trial search for evidence, and the role of independent or court experts.

The comparative study shall take into account information supplied by members of the European Committee on Legal Co-operation (CDCJ) on the basis of a questionnaire to be prepared by the consultant.

In the light of the above-mentioned analysis, the consultant shall also consider to what extent the Committee of Ministers recommendations relevant to the use of information and communication technologies by courts require revision.

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

2 At this plenary meeting of the CDCJ, the member States were represented by 22 women and 22 men.

3 In favour: 36 – Albania, Armenia, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Italy, Luxembourg, Malta, Republic of Moldova, Montenegro, Netherlands, Norway, Poland, Portugal, Russian Federation, Serbia, Slovak Republic, Slovenia, Sweden, Switzerland, “The former Yugoslav Republic of Macedonia”, Turkey, Ukraine, United Kingdom. Against: 0. Abstentions: 1 – Austria.

4 The third meeting of the drafting group will be held in Strasbourg from 24 to 26 March 2014.

5 The respective terms of reference will take effect from 1st January 2014.



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