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Ministers' Deputies
CM Documents

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679 Meeting, 15[-16] September 1999
10 Legal Questions

10.4 European Committee on Crime Problems (CDPC)
d. Draft Recommendation No. R(99) … concerning the friendly settlement of any difficulty that may arise out of the application of the Council of Europe Conventions in the penal field

 

CM(99)118 Addendum 3 2 August 1999



 

Summary

 

Part 1. Draft Recommendation No. R (99) .. of the Committee of Ministers to Member States concerning the friendly settlement

of any difficulty that may arise out of the application of the council of Europe Conventions in the penal field

Part 2. Final Report

 

 

PART 1

DRAFT

RECOMMENDATION NO. R (99) ..

OF THE COMMITTEE OF MINISTERS TO MEMBER STATES

CONCERNING THE FRIENDLY SETTLEMENT OF ANY DIFFICULTY THAT MAY ARISE OUT OF THE APPLICATION OF THE COUNCIL OF EUROPE CONVENTIONS IN THE PENAL FIELD

(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,

Having regard to the Council of Europe Conventions in the penal field;

Recognising that through such Conventions it pursues the goals notably of:

- upholding the rule of law;

- promoting human rights;

- fighting for democratic stability in Europe;

- strengthening European legal co-operation in criminal matters

- supporting victims and redressing their rights;

- pursuing the ends of justice by bringing before a court of law those who are accused of having committed a crime;

- promoting the social rehabilitation of offenders.

Desirous of strengthening its ability to pursue such goals in a comprehensive and harmonious fashion;

Convinced that to that effect it is proper to facilitate, in accordance with the guidelines appended, the friendly settlement of any difficulty arising out of the application of any one or more of the Council of Europe Conventions in the penal field;

1. Recommends the governments of member States:

(a) To continue to keep the European Committee on Crime Problems (CDPC) informed through the PC-OC about the application of all the Conventions in the Penal Field and of any difficulty that may arise thereof;

(b) Pending the entry into force of provisions formally extending the CDPC’s role in this area to the European Convention on Extradition and the European Convention on Mutual Assistance in Criminal Matters, to accept that the CDPC be called upon to do whatever is necessary to facilitate a friendly settlement of difficulties arising out of the application of those Conventions;

(c) when experiencing difficulties that may be seen as concerning two or more Conventions simultaneously, to assign them jointly to the CDPC;

2. Instructs the Secretary General of the Council of Europe to transmit this Recommendation to the governments of the non-member States which are a Party to any of the above-mentioned Conventions and to the governments of States invited to accede to any such Convention.

 

Appendix to Recommendation No. R(99) …

 

Procedural guidelines for the friendly settlement of difficulties

arising out of the application of conventions in the penal field

1. Any request for a friendly settlement should be forwarded in writing to the Secretariat.

2. The Secretariat shall transmit the requests to the Bureau for consideration at the earliest meeting, whether a Bureau meeting or a CDPC plenary session.

3. Where the request is urgent, the Secretariat, in consultation with the Bureau of the CDPC, shall put into motion an urgent procedure.

4. Whenever friendly settlements coincide in time with plenary sessions of the CDPC, they shall be sought within an open-ended working party of the CDPC.

5. Whenever they do not coincide in time with plenary sessions of the CDPC, friendly settlements shall be sought within an ad hoc working party of the CDPC set up and convened to that effect.

6. The members of such an ad hoc working party shall then be:

a) persons appointed by the States involved in the difficulties or disputes under review;

b) persons designated by the Bureau of the CDPC, amongst:

- the Heads of Delegation to the CDPC, or their substitutes designated to that effect;

- persons appointed to that effect by States not members of the Council of Europe yet a Party to one or more of the Conventions in respect of which the difficulties or disputes have arisen;

7. All Heads of Delegation shall be informed of the request and the procedure followed; they shall be allowed to submit written comments;

8. The Chair of the CDPC, or a member of the Bureau, should assume responsibility for and preside over any meetings that might be held in the context of friendly settlements;

9. The number of persons appointed by the States involved, as well as the number of persons appointed by the Bureau of the CDPC, shall be measured against the nature of the difficulties involved and the need to proceed both effectively and efficiently.

10. The State that sets the procedure in motion should put into writing the facts of the case, the difficulties that it is faced with, whether or not it considers the request to be urgent, as well as the aim that it seeks to achieve.

11. The respondent State should likewise put into writing its point of view or any comments that it deems fit.

12. At the end of the procedure, a paper must emerge, stating the facts, the difficulties encountered, as well as suggestions that the CDPC, or in urgent situations the ad hoc working party, wishes to submit to the States involved.

13. Finally, States involved in friendly settlements may be invited to feed back information on what happened as a consequence of the procedures, or following the procedures, in particular where such information might be of relevance to the interests of other States.

 

PART 2

Final Report

 

TERMS OF REFERENCE

At the 653rd meeting of the Ministers' Deputies (16-17 December 1998), the Committee of Ministers adopted the following terms of reference addressed to the CDPC:

(a) to develop a fast and effective mechanism designed to facilitate the friendly settlement of any difficulty, including conflicts of jurisdiction, which may arise out of the application of any Council of Europe Convention in criminal matters, in particular the European Convention on Extradition and the European Convention on the Suppression of Terrorism, and to examine the efficiency of mechanisms for the settlement of disputes already contained in those Conventions;

(b) to examine, in close co-operation with the Parties to the European Convention on the Transfer of Proceedings in Criminal Matters, the possibility of effectively using that Convention, with reference in particular to its Article 44;

(c) in the light of what is mentioned above, to examine the possibility of resuming consideration of the draft Comprehensive Convention on International Co-operation in Criminal Matters (suspended in 1994 on the occasion of the 43rd plenary session of the CDPC), as well as the review mechanism it provides.

Duration of terms of reference: 30 June 1999

On the same occasion, the Deputies instructed the Bureau of the CDPC as follows:

(a) to prepare the work of the CDPC relating to the [above] terms of reference, and

(b) to instruct as appropriate the Committee of Experts on the Operation of European Conventions in the Penal Field (PC-OC) to follow and activate that work.

 

PROCEDURE

Following those instructions, the Bureau of the CDPC held two extraordinary meetings. The first (Paris, 21 and 22 December 1998) was open to all member States. The report of that meeting appears in document CDPC-BU (98) 7.

At the 657th meeting of the Ministers’ Deputies (20-21 January 1999, item 10.2), the Committee of Ministers examined the summary report of the enlarged Bureau’s meeting, and in that respect decided as follows:

"The Deputies

1. took note of the lines of thinking put forward by the enlarged Bureau of the CDPC, at its Paris meeting, which the Bureau intends to follow in order to find answers to certain difficulties it has identified in relation to European co-operation in criminal matters, details of which appear in document CM (99) 17;

2. took note that the Bureau of the CDPC, in its normal composition, would be holding a meeting on 23-24 January 1999, in Vienna in order to pursue further the reflection on this matter begun at the Paris meeting with a view to implementing the terms of reference given by the Committee of Ministers to the CDPC within the scheduled time-frame (June 1999);

3. took note with great satisfaction of the report of the Bureau of the CDPC, as a whole."

The 2nd meeting of the Bureau of the CDPC which was devoted to these matters was held in Vienna during the week-end of 23 and 24 January 1999. The report of that meeting appears in document CDPC-BU (99) 2.

In that context, the Bureau assigned the following tasks to the PC-OC:

(a) to reflect, and report back to it by 31 March 1999, on ways to improve its communications with the CDPC on the results of its exchanges of views on practical difficulties that arise out of the application of the penal Conventions;

(b) to study point (b) of the terms of reference and the question of whether the Convention on the Transfer of Proceedings in Criminal Matters (ETS 73) could not be used in cases where extradition was not possible (e.g. because of death penalty or life imprisonment), by involving a third State to which both the proceedings and the person sought would be transferred;

(c) to prepare an opinion for the CDPC on the issue of whether or not to resume consideration of the draft Comprehensive Convention (this issue should be included in the agenda for the CDPC plenary session in 1999);

(d) to include in the draft 2nd Additional Protocol to the Mutual Assistance Convention a friendly settlement clause applicable both to the Protocol and the Convention;

(e) to proceed likewise if and when a new Protocol to the European Convention on Extradition is prepared.

The PC-OC carried out those tasks at its 38th meeting (22-25 February 1999). The report of that meeting appears in document PC-OC (99) 6.

At its regular meeting on 21-22 April 1999, the Bureau of the CDPC prepared this report.

At its 48th plenary session (7-11 June 1999), the CDPC examined and adopted this report for it to be submitted to the Committee of Ministers.

* * * * *

The CDPC considers the terms of reference given to it by the Committee of Ministers as an opportunity to highlight both the existence of different procedures for coping with difficulties arising out of the application of Conventions or preventing them and the CDPC’s continuous role in developing the means and legal instruments for an effective and smooth international co-operation in criminal matters.

The terms of reference were given consideration under different items, as follows:

1. Possible ways to solve difficulties arising out of the application of Conventions in the Penal Field:

a. the role of the PC-OC

b. friendly settlement

c. arbitration

2. Application of the European Convention on the Transfer of Proceedings in Criminal Matters;

3. Whether or not to resume consideration of the draft Comprehensive Convention.

 

POSSIBLE WAYS TO SOLVE DIFFICULTIES ARISING OUT OF THE APPLICATION OF CONVENTIONS IN THE PENAL FIELD

(a) The role of the PC-OC

The Committee of Experts on the Operation of Conventions in the Penal Field (PC-OC) is a permanent committee of the CDPC, open to all member States as well as observers footnote 1.

The PC-OC has a double task, namely (a) to examine difficulties that arise out of the application of the Council of Europe Conventions in the penal field, and (b) to develop new instruments if and when necessary.

The PC-OC usually meets twice each year. At each meeting it devotes part of its time to exchanging views on difficulties voiced by the experts.

The importance of the PC-OC's work in this respect must be recognised, in particular as a means of intervening upon difficulties arising out of the application of Conventions in the penal field, at an early stage before they eventually grow into disputes. Moreover, in most instances the interest of overcoming the difficulties discussed is shared by most if not all member States, not only by those directly involved.

The PC-OC discusses difficulties thoroughly with a view to facilitating co-operation, either on the specific subject or in general. The result may take the form of either operational solutions acceptable to all, or a description of the different solutions followed in the different countries.

Conclusions coming out of the exchanges may lead the PC-OC to drafting recommendations.

However, such exchanges usually give rise to brief reports drafted by the Secretariat which are included in the meeting report of the PC-OC. On one occasion, the reports were informally published by way of "notes" concerning the Extradition Convention. Such notes are considered to be very helpful.

This practice can be improved to the effect that the Secretariat henceforth will prepare a separate document outlining the practical difficulties discussed and the views of the PC-OC on possible solutions. That document will then be submitted to the CDPC (a) for it to exercise, if appropriate, its policy role and (b) for its information, again if appropriate, in the framework of its role in facilitating friendly settlements in the future. Moreover, the Secretariat shall make such documents available to practitioners in Member States.

(b) Friendly settlement

Scope of application

At present the following Conventions provide a role for the CDPC in facilitating the friendly settlement of difficulties:

a. European Convention on the Punishment of Road Traffic Offences (ETS No. 52), Article 28;

b. European Convention on the International Validity of Criminal Judgments (ETS No. 70), Article 65;

c. European Convention on the Repatriation of Minors (ETS No. 71), Article 28;

d. European Convention on the Transfer of Proceedings in Criminal Matters (ETS No. 73), Article 44;

e. European Convention on the Suppression of Terrorism (ETS No. 90), Article 9;

f. European Convention on the Control of the Acquisition and Possession of Firearms by Individuals (ETS No. 101), Article 17;

g. Convention on the Transfer of Sentenced Persons (ETS No. 112), Article 23;

h. European Convention on the Compensation of Victims of Violent Crimes (ETS No. 116), Article 13;

i. European Convention on offences relating to cultural property (ETS No.119), Article 31;

j. Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime (ETS No. 141), Article 42;

k. Additional Protocol to the European Convention on Extradition (ETS No.86), Article 7;

l. Second Additional Protocol to the European Convention on Extradition (ETS No. 98), Article 10;

m. Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters (ETS No. 99), Article 10;

n. Agreement on Illicit Traffic by Sea, implementing Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (ETS No. 156), Article 34.

The texts of the above-mentioned provisions appear in Appendix I to this report.

It is noted that the European Convention on Extradition, as well as the European Convention on Mutual Assistance in Criminal Matters are not mentioned in the above list. That is due to circumstances described in the explanatory reports to those Conventions.

Reservations

Only in respect of one of the above-mentioned fourteen Conventions a single member State made a reservation applicable to the provisions on friendly settlement. The authorities of that State are studying the possibility of withdrawing that reservation.

Practical application

The above-mentioned provisions concerning the friendly settlement of difficulties have seldom been the basis for formal requests by States. In practical terms, it may be said that only once the CDPC assumed its role to facilitate friendly settlement. This happened parallel to its 1998 annual meeting. All those concerned considered that the exercise had been successfully carried out and the final paper was approved by the CDPC plenary.

Recommendations

The CDPC considered it appropriate to request the Committee of Ministers to invite member States:

(a) To continue to keep the European Committee on Crime Problems (CDPC) informed through the PC-OC about the application of all the Conventions in the Penal Field and of any difficulty that may arise thereof;

(b) Pending the entry into force of provisions formally extending the CDPC’s role in this area to the European Convention on Extradition and the European Convention on Mutual Assistance in Criminal Matters, to accept that the CDPC be called upon to do whatever is necessary to facilitate a friendly settlement of difficulties arising out of the application of those Conventions;

(c) when experiencing difficulties that may be seen as concerning two or more Conventions simultaneously, to assign them jointly to the CDPC.

For that purpose, the CDPC approved the draft Recommendation on Friendly Settlement, that appears in Part I of this document.

Subsequent measures

The CDPC instructed the PC-OC :

- to include a friendly settlement clause in the draft 2nd Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters;

- to proceed likewise if and when a new Protocol to the European Convention on Extradition is prepared.

-Guidelines for the improvement of friendly settlement

The CDPC considers that friendly settlement can be improved by establishing guidelines. While doing so, it underlines that the purpose of the intervention of the CDPC is to facilitate a friendly settlement and therefore its aim is:

- neither to give an authentic interpretation of any legal instrument,

- nor to make any kind of judgement on the parties concerned.

It follows from the Conventions themselves that only States Party to a Convention – either Members or non-Members of the Council of Europe – are entitled to trigger the friendly settlements with respect to any difficulty arising out of the application of that Convention. Should a State have an interest in discussing difficulties related to a Convention to which it is not a Party, that State should of course be free to raise the matter either at the PC-OC or at the Committee of Ministers, or both.

It is recalled in this respect that non-member States, Party to one or more of the above-mentioned Conventions, are: Australia (ETS 141), Bahamas (ETS 112) Canada (ETS 112), Chile (ETS 112), Costa Rica (ETS 112), Israel (ETS 24, 30, 112), Trinidad and Tobago (ETS 112), United States (ETS 112).

Although, as has been stated before, the CDPC was called upon parallel to its annual meeting to assume its role, the CDPC has considered also the question of how to proceed in between its yearly sessions, especially in cases of urgency.

To that effect, the CDPC approved the following procedural guidelines that are appended to the draft Recommendation on Friendly Settlement reproduced in Part I of this document:

1. Any request for a friendly settlement should be forwarded in writing to the Secretariat.

2. The Secretariat shall transmit the requests to the Bureau for consideration at the earliest meeting, whether a Bureau meeting or a CDPC plenary session.

3. Where the request is urgent, the Secretariat, in consultation with the Bureau of the CDPC, shall put into motion an urgent procedure.

4. Whenever friendly settlements coincide in time with plenary sessions of the CDPC, they shall be sought within an open-ended working party of the CDPC.

5. Whenever they do not coincide in time with plenary sessions of the CDPC, friendly settlements shall be sought within an ad hoc working party of the CDPC set up and convened to that effect.

6 . The members of such an ad hoc working party shall then be:

(a) persons appointed by the States involved in the difficulties or disputes under review;

(b) persons designated by the Bureau of the CDPC, amongst:

- the Heads of Delegation to the CDPC, or their substitutes designated to that effect;

- persons appointed to that effect by States not members of the Council of Europe yet a Party to one or more of the Conventions in respect of which the difficulties or disputes have arisen;

7. All Heads of Delegation shall be informed of the request and the procedure followed; they shall be allowed to submit written comments;

8. The Chair of the CDPC, or a member of the Bureau, should assume responsibility for and preside over any meetings that might be held in the context of friendly settlements;

9. The number of persons appointed by the States involved, as well as the number of persons appointed by the Bureau of the CDPC, shall be measured against the nature of the difficulties involved and the need to proceed both effectively and efficiently.

10. The State that sets the procedure in motion should put into writing the facts of the case, the difficulties that it is faced with, whether or not it considers the request to be urgent, as well as the aim that it seeks to achieve.

11. The other State concerned should likewise put into writing its point of view or any comments that it deems fit.

12. At the end of the procedure, a paper should be established, stating the facts, the difficulties encountered, as well as suggestions that the CDPC, or in urgent situations the ad hoc working party, wishes to submit to the States involved.

13. Finally, States involved in friendly settlements may be invited to feed back information on what happened as a consequence of the procedures, or following the procedures, in particular where such information might be of relevance to the interests of other States.

(c) Arbitration

The question has been raised as to whether (a) the scope of arbitration, as a means of settling disputes arising out of the application of one or more penal conventions should be expanded or (b) whether arbitration is at all needed in this context.

Arbitration is a contentious litigation procedure whereby legal arguments are weighed against their respective merits and measured against facts. It leads to a final decision that is binding upon the parties to the litigation. The arbitration proceedings are taken before a tribunal, often called "arbitral tribunal", established under terms contractually agreed upon by the parties.

It was mentioned above that fourteen penal conventions of the Council of Europe (plus the draft Comprehensive Convention) provide for friendly settlement. Three conventions only (namely, Terrorism, Money Laundering and Illicit Traffic by Sea), as well as the draft Comprehensive Convention, contain provisions on arbitration (cf. Appendix II to this report).

It should be added that the provisions on arbitration that are included in the Laundering Convention are supplemented by the provisions of Recommendation R (91) 12 on Arbitral Tribunals under the Laundering Convention.

Relevant in this respect is also the European Convention for the Peaceful Settlement of Disputes (ETS 23) of 29.04.57 entered into force on 30.04.58. Thirteen States (all member States) are a Party to that Convention. The latest ratification dates back to 1980 and the one before to 1970. Parties to the Convention undertake to settle by peaceful means any disputes that may arise between them. The Convention makes provision for three such means, namely judicial settlement, conciliation and arbitration.

Under the above-mentioned three penal Conventions, Parties are given the choice between different ways of settling disputes. Thus arbitration is not compulsory in the sense that there are no circumstances under which a Party is under the duty to resort to arbitration. However, once a Party takes such an initiative, the other Party concerned (the respondent Party), depending on the convention applicable, may either be compelled to accept arbitration or has the choice to refuse it. In fact, each of the above Conventions provides a different answer to this. In this sense, it can be said that arbitration may either be compulsory or not compulsory for the respondent Party.

Thus arbitration is compulsory for the respondent Party, under the terms of Article 10 of the Terrorism Convention .("If any Party has not nominated its arbitrator within the three months following the request for arbitration, he shall be nominated at the request of the other Party by the President of the European Court of Human Rights. … The same procedure shall be observed if the arbitrators cannot agree on the choice of referee. … The arbitration tribunal shall lay down its own procedure. Its decisions shall be taken by majority vote. Its award shall be final.")

However, arbitration is not compulsory for the respondent Party under the Laundering Convention. Indeed nothing to that effect is written into the Convention proper, whilst Rule 2 of Recommendation (91) 12 clearly makes reference to acceptance of arbitration by the respondent Party ("Upon acceptance of the request for arbitration the two Parties concerned shall establish an arbitral tribunal").

A third case is embodied in the Agreement on the Illicit Traffic by Sea where, under Article 34.3, any Party may "declare that, in respect of any dispute concerning the interpretation or application of this Agreement, it recognises as compulsory, without prior agreement … the submission of the dispute to arbitration …". The same is written into paragraph 3 of Article VI.8.bis of the draft Comprehensive Convention.

Arbitral tribunals are otherwise comparable with courts of law.

Expanding the use of arbitration does not appear to have real advantages. It can be said that in case of disputes over, for example, money laundering or damages for negligence in boarding a vessel, it is advantageous to resort to a procedure the issue of which is final and binding, thus clear and certain, because these difficulties are likely to consist of financial claims. Conversely, difficulties concerning co-operation in criminal matters in general are more often solved on the basis of values such as good will, the sense of sharing common problems, the recognition that crime cannot be controlled solely within national borders, the practical need to ensure continued co-operation, etc., which cannot be brought about by binding decisions.

It might be added that experience shows that it is rare for States to accept to submit their disputes to international tribunals of any kind.

 

Application of the Convention on the Transfer of Proceedings in Criminal Matters – ETS 73

Concerning the European Convention on the Transfer of Proceedings in Criminal Matters, the CDPC was instructed by the Committee of Ministers to "examine, in close co-operation with the Parties to [it], the possibility of effectively using that Convention, with reference in particular to its Article 44.

The text of Article 44 is reproduced in Appendix I to this document. It deals with the friendly settlement of disputes. The considerations above on friendly settlement apply to that Convention as much as they apply to the other relevant Conventions.

The CDPC notes that the following States only are a Party to the European Convention on the Transfer of Proceedings in Criminal Matters: Austria, Czech Republic, Denmark, Estonia, Latvia, Netherlands, Norway, Slovakia, Spain, Sweden, Turkey and Ukraine.

Effectively using that Convention, as suggested by the Committee of Ministers, implies inter alia that States become a Party to it.

At the above-mentioned enlarged Bureau meeting in Paris, one Delegation suggested that the Convention on the Transfer of Proceedings in Criminal Matters could be used in cases where extradition was not possible (e.g. because of death penalty or life imprisonment), by involving a third State to which both the proceedings and the person sought would be transferred.

This matter was subsequently discussed at the 38th meeting of the PC-OC (22-25 February 1999). The views expressed on that occasion are reflected in document PC-OC (99) 6.

The CDPC took note that the Parties to that Convention are of the opinion that non-Parties are not entitled to request its application. They are also of the opinion that, in ratifying the Convention, their undertakings had not been to the effect suggested, as above.

This does not exclude a Party to the Convention to use it for the purpose suggested if it so wishes. However, when agreeing to that, the transfer of proceedings can only be done in combination with extradition and then there could be legal obstacles resulting from the European Convention on Extradition.

 

Whether or not to resume consideration of the draft Comprehensive Convention

The Draft European Comprehensive Convention on International Co-operation in Criminal Matters was prepared by the PC-OC between 1986 and 1994. Its purpose was to bring together in a single instrument the provisions presently contained in different European conventions in the field of legal co-operation in criminal matters, while at the same time adapting these provisions to the present-day needs of international co-operation.

At its 43rd plenary session (20-24 June 1994), the CDPC decided to suspend work on the Comprehensive Convention, considering that, under the circumstances of the day, it was not realistic to pursue the finalisation of the draft text. It further considered that the important work accomplished until then was not be in vain because it contributed to better understanding and improving the operation of the existing conventions.

To that end and at the request of the CDPC, the Committee of Ministers, at the 577th meeting of their Deputies (November 1996), decided to declassify the text of the draft Comprehensive Convention, so that it may be made available to interested institutions and persons involved in the practical application of the European conventions in the penal field.

At its 43rd plenary session, the CDPC also decided to review its decisions on the draft Comprehensive Convention at a future plenary session, but not later than 1998, in particular in the light of developments in the field of international legal co-operation in criminal matters and any advice received from the PC-OC.

Having now, on the basis of an opinion of the PC-OC, re-examined its decisions of 1994, the CDPC agreed on the following.

The circumstances that led the CDPC to take its decisions on this matter in 1994 have not changed since then. Such circumstances may be described as follows: Firstly, should the Comprehensive Convention be opened for signature, it would probably take many decades before it entered into force in respect of all the many States that presently are a Party to one or another of the Conventions that the Comprehensive Convention is designed to replace. Consequently, for a very long period of time, international co-operation in Europe would be hampered by a confusing situation characterised by the co-existence of the Comprehensive Convention with the Conventions that it is designed to replace.

Secondly, the Comprehensive Convention allows for States that become a Party to it to choose either to take all or only one or more of its chapters. Because each chapter deals with a specific form of co-operation, this means that the Comprehensive Convention alone does not ensure the "comprehensive" effect with respect to all States that would become a Party to it.

Adding to this, developments in the field of international legal co-operation in criminal matters since 1994 include the entry into scene of a number of new "sectoral" Conventions (e.g. Money Laundering, Environment, Corruption, Cyberspace, …). Thus the "comprehensive" effect of the Comprehensive Convention also could not be achieved with respect to these sectors of co-operation.

The CDPC is therefore of the opinion that it is not appropriate to resume consideration of the draft Comprehensive Convention. However, the draft should remain as a reference and a source of inspiration for the PC-OC when discharging its task of drafting new instruments, as appropriate.

The CDPC also took note of the Italian position, supported by certain Delegations. Although taking the view that it is no longer appropriate to pursue the examination of the draft Comprehensive Convention, they think that it is nevertheless necessary to examine the feasibility of preparing a legal instrument that could both contribute to taking better advantage of the existing Conventions – in a spirit of complementarity – and set the course for the development of an even more effective system of international judicial co-operation.

 

FINALLY

When discussing the terms of reference given to it another point arose. Given the situation that in recent years it has been decided several times to establish legally binding instruments on specific forms of crime outside the structure of the CDPC, it is considered very important, with a view to preventing future difficulties, that the Committee of Ministers adopts any terms of reference involving the development of instruments in the penal field only after having sought the opinion of the CDPC.

 

 

APPENDIX I

Provisions for friendly settlement

 

Article 28 of the European Convention

on the Punishment of Road Traffic Offences (ETS 52)

The European Committee on Crime Problems of the Council of Europe shall be kept informed regarding the application of this Convention and shall do whatever is needful to facilitate a friendly settlement of any difficulty which may arise out of its execution.

Article 65 of the European Convention

on the International Validity of Criminal Judgments (ETS 70)

The European Committee on Crime Problems of the Council of Europe shall be kept informed regarding the application of this Convention and shall do whatever is needful to facilitate a friendly settlement of any difficulty which may arise out of its execution.

Article 28 of the European Convention

on the Repatriation of Minors (ETS 71)

The Council of Europe shall keep itself informed concerning the application of this Convention and shall do whatever is needful to facilitate a friendly settlement of any difficulty which may arise out of its execution.

Article 44 of the European Convention

on the Transfer of Proceedings in Criminal Matters (ETS 73)

The European Committee on Crime Problems of the Council of Europe shall be kept informed regarding the application of this Convention and shall do whatever is needful to facilitate a friendly settlement of any difficulty which may arise out of its execution.

Article 7 of the Additional Protocol

to the European Convention on Extradition (ETS 86)

The European Committee on Crime Problems of the Council of Europe shall be kept informed regarding the application of this Protocol and shall do whatever is needful to facilitate a friendly settlement of any difficulty which may arise out of its execution.

Article 9 of the European Convention

on the Suppression of Terrorism (ETS 90)

1. The European Committee on Crime Problems of the Council of Europe shall be kept informed regarding the application of this Convention.

2. It shall do whatever is needful to facilitate a friendly settlement of any difficulty which may arise out of its execution.

Article 10 of the Second Additional Protocol

to the European Convention on Extradition (ETS 98)

The European Committee on Crime Problems of the Council of Europe shall be kept informed regarding the application of this Protocol and shall do whatever is needful to facilitate a friendly settlement of any difficulty which may arise out of its execution.

Article 10 of the Additional Protocol

to the European Convention on Mutual Assistance in Criminal Matters (ETS 99)

The European Committee on Crime Problems of the Council of Europe shall be kept informed regarding the application of this Protocol and shall do whatever is needful to facilitate a friendly settlement of any difficulty which may arise out of its execution.

Article 17 of the European Convention on the Control

of the Acquisition and Possession of Firearms by Individuals (ETS 101)

1. The European Committee on Crime Problems of the Council of Europe shall be kept informed regarding the application of this Convention and shall do whatever is needful to facilitate a friendly settlement of any difficulty which may arise out of its execution.

2. The European Committee on Crime Problems may, in the light of future technical, social and economic developments, formulate and submit to the Committee of Ministers of the Council of Europe proposals designed to amend or supplement the provisions of this Convention and in particular to alter the contents of Appendix I.

Article 23 of the Convention

on the Transfer of Sentenced Persons (ETS 112)

Friendly settlement

The European Committee on Crime Problems of the Council of Europe shall be kept informed regarding the application of this Convention and shall do whatever is necessary to facilitate a friendly settlement of any difficulty which may arise out of its application.

Article 13 of the European Convention

on the Compensation of Victims of Violent Crimes (ETS 116)

1. The European Committee on Crime Problems (CDPC) of the Council of Europe shall be kept informed regarding the application of the Convention.

2. To this end, each Party shall transmit to the Secretary General of the Council of Europe any relevant information about its legislative or regulatory provisions concerning the matters covered by the Convention.

Article 31 of the European Convention

on Offences relating to Cultural Property (ETS 119)

The European Committee on Crime Problems of the Council of Europe shall follow the application of this Convention and shall do whatever is needed to facilitate a friendly settlement of any difficulty which may arise out of its execution.

Article 42 of the European Convention

on Laundering, Search, Seizure and

Confiscation of the Proceeds from Crime (ETS 141)

1. The European Committee on Crime Problems of the Council of Europe shall be kept informed regarding the interpretation and application of this Convention.

2. In case of a dispute between Parties as to the interpretation or application of this Convention, they shall seek a settlement of the dispute through negotiation or any other peaceful means of their choice, including submission of the dispute to the European Committee on Crime Problems, to an Arbitral Tribunal whose decisions shall be binding upon the Parties or to the International Court of Justice, as agreed upon by the Parties concerned.

Article 34 (Settlement of disputes)

of the Agreement on Illicit Traffic by Sea,

implementing Article 17 of the United Nations Convention

against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (ETS 156)

1. The European Committee on Crime Problems of the Council of Europe shall be kept informed of the interpretation and application of this Agreement.

In case of a dispute between Parties as to the interpretation or application of this Agreement, the Parties shall seek a settlement of the dispute through negotiation or any other peaceful means of their choice, including submission of the dispute to the European Committee on Crime Problems, to an arbitral tribunal whose decisions shall be binding upon the Parties, mediation, conciliation or judicial process, as agreed upon by the Parties concerned.

Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, or on any later date, by a declaration addressed to the Secretary General of the Council of Europe, declare that, in respect of any dispute concerning the interpretation or application of this Agreement, it recognises as compulsory, without prior agreement, and subject to reciprocity, the submission of the dispute to arbitration in accordance with the procedure set out in the appendix to this Agreement

4. Any dispute which has not been settled in accordance with paragraphs 2 or 3 of this article shall be referred, at the request of any one of the parties to the dispute, to the International Court of Justice for decision.

5. Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that it does not consider itself bound by paragraph 4 of this article.

6. Any Party having made a declaration in accordance with paragraphs 3 or 5 of this article may at any time withdraw the declaration by notification to the Secretary General of the Council of Europe.

APPENDIX II

 

Provisions for arbitration procedures

 

Article 10 of the European Convention

on the Suppression of Terrorism (ETS 90)

1. Any dispute between Contracting States concerning the interpretation or application of this Convention, which has not been settled in the framework of Article 9, paragraph 2, shall, at the request of any Party to the dispute, be referred to arbitration. Each Party shall nominate an arbitrator and the two arbitrators shall nominate a referee. If any Party has not nominated its arbitrator within the three months following the request for arbitration, he shall be nominated at the request of the other Party by the President of the European Court of Human Rights. If the latter should be a national of one of the Parties to the dispute, this duty shall be carried out by the Vice-President of the Court or if the Vice-President is a national of one of the Parties to the dispute, by the most senior judge of the Court not being a national of one of the Parties to the dispute. The same procedure shall be observed if the arbitrators cannot agree on the choice of referee.

2. The arbitration tribunal shall lay down its own procedure. Its decisions shall be taken by majority vote. Its award shall be final.

Article 42 of the European Convention

on Laundering, Search, Seizure and

Confiscation of the Proceeds from Crime (ETS 141)

1. The European Committee on Crime Problems of the Council of Europe shall be kept informed regarding the interpretation and application of this Convention.

2. In case of a dispute between Parties as to the interpretation or application of this Convention, they shall seek a settlement of the dispute through negotiation or any other peaceful means of their choice, including submission of the dispute to the European Committee on Crime Problems, to an Arbitral Tribunal whose decisions shall be binding upon the Parties or to the International Court of Justice, as agreed upon by the Parties concerned.

 

Article 34 (Settlement of disputes)

of the Agreement on Illicit Traffic by Sea,

implementing Article 17 of the United Nations Convention

against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (ETS 156)

1. The European Committee on Crime Problems of the Council of Europe shall be kept informed of the interpretation and application of this Agreement.

In case of a dispute between Parties as to the interpretation or application of this Agreement, the Parties shall seek a settlement of the dispute through negotiation or any other peaceful means of their choice, including submission of the dispute to the European Committee on Crime Problems, to an arbitral tribunal whose decisions shall be binding upon the Parties, mediation, conciliation or judicial process, as agreed upon by the Parties concerned.

3. Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, or on any later date, by a declaration addressed to the Secretary General of the Council of Europe, declare that, in respect of any dispute concerning the interpretation or application of this Agreement, it recognises as compulsory, without prior agreement, and subject to reciprocity, the submission of the dispute to arbitration in accordance with the procedure set out in the appendix to this Agreement.

4. Any dispute which has not been settled in accordance with paragraphs 2 or 3 of this article shall be referred, at the request of any one of the parties to the dispute, to the International Court of Justice for decision.

5. Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that it does not consider itself bound by paragraph 4 of this article.

6. Any Party having made a declaration in accordance with paragraphs 3 or 5 of this article may at any time withdraw the declaration by notification to the Secretary General of the Council of Europe.


1. Canada, Israel and the United States.



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