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CM(99)173...(694/4.2)...Steering Committee for Human Rights (CDDH) .- Report of the 47th meeting (Strasbourg, 30 November -3 December 1999)

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694 Meeting, 19 January 2000
4 Human Rights

4.2 Steering Committee for Human Rights (CDDH)
Report of the 47th meeting (Strasbourg, 30 November - 3 December 1999)

CM(99)173 21 December 1999



 

STEERING COMMITTEE FOR HUMAN RIGHTS

(CDDH)

_____

47th Meeting,

30 November – 3 December 1999

Strasbourg, Human Rights Building

Directorate Room

_____

 

REPORT

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* * *

Introduction

1. The Steering Committee for Human Rights (CDDH) held its 47th meeting in the Human Rights Building in Strasbourg from 30 November to 3 December 1999, with Mr Guido RAIMONDI (Italy) in the Chair. The participants are listed in Appendix I. The agenda, as adopted, is reproduced in Appendix II and mentions the working documents.

2. At this meeting, the CDDH, in particular:

i. concerning the elaboration of a draft Protocol N° 12 to the European Convention on Human Rights broadening, in a general fashion, the field of application of Article 14 and containing a non-exhaustive list of discrimination grounds, and its draft Explanatory Report :

- adopted, for the attention of the Committee of Ministers, a short final activity report (Appendix III to the present report);

- requested the Committee of Ministers to authorise an extraordinary meeting on 9-10 March 2000, in order to: (i) examine the opinions which will have been submitted by the Court and the Parliamentary Assembly on the subject, (ii) examine the draft Protocol and draft Explanatory Memorandum with a view to their adoption and (iii) transmit these draft texts to the Committee of Ministers;

- requested the Committee of Ministers to extend its ad hoc terms of refernce on the subject until 31 March 2000;

ii. undertook preparatory work on both the substantive issues and organisational aspects of the European Ministerial Conference on Human Rights (Rome, 3-4 November 2000) (Appendix IV);

iii. adopted, for the attention of the Committee of Ministers, a draft Recommendation and draft Explanatory Memorandum concerning the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights (Appendix V);

iv. adopted, for the attention of the Committee of Ministers, a draft Recommendation and draft Explanatory Memorandum on the right to the satisfaction of basic material needs of persons in situations of extreme hardship (Appendix VI);

v. adopted, for the attention of the Committee of Ministers, a text on the the Declaration and Programme on Education for Democratic Citizenship, based on the Rights and Responsibilities of Citizens (Appendix VII);

vi. adopted, for the attention of the Committee of Ministers, an opinion on Recommendation 1402 (1999) of the Parliamentary Assembly on control of internal security services in Council of Europe member States (Appendix VIII);

vii. adopted, for the attention of the European Committee on Legal Co-operation (CDCJ), an opinion on the draft Recommendation being prepared by the Committee of Experts on the Efficiency of Justice (CJ-EJ) on the freedom of exercise of the profession of lawyer (Appendix IX);

viii. took note of the Final Activity Report on dispersed ethnic minorities (Addendum to the present report), prepared by its Committee of Experts on Issues relating to the Protection of National Minorities (DH-MIN) and forwarded this report to the Committee of Ministers, in accordance with the terms of reference which the DH-MIN had received directly from the latter;

ix. examined the situation of its Secretariat and asked the Committee of Ministers for an immediate reinforcement of its human resources, (see paragraphs 95 and 96 of this report). Such a reinforcement is all that more urgent as the Steering Committee must now prepare for the above-mentioned Ministerial Conference;

x. adopted this report as a whole.

Items 1 and 2 of the Agenda:Opening of the Meeting, adoption of agenda and of the Order of Business

3. See introduction.

Item 3 of the Agenda: Developments in the international protection of human rights

I. General exchange of views

a. Charter of Fundamental Rights of the European Union

4. The CDDH took note of the document (CDDH (99) 27 prov) which gives elements of reflection on the drafting of a Charter of Fundamental Rights of the European Union. The experts from Finland and Germany provided further details on how their authorities viewed this issue, given the fact that Finland currently has the Presidency of the European Union and it was during the German presidency that this project was initiated. The CDDH was informed that an ad hoc committee had met twice in 1999, the main issue of discussion being the composition of the Body which will elaborate the Charter and by whom it should be chaired. The composition of the Body was finally agreed upon at the Tampere meeting in October 1999 when it was also decided that the Body itself would select a Chairperson at its first meeting which will take place on 17 December. Six plenary meetings of the Body are planned for 2000 with drafting group meetings taking place in between.

5. In this connection, the CDDH welcomed the fact that two Council of Europe representatives were members of the Body responsible for the elaboration of the Charter, Mr Hans-Christian KRUGER, Deputy Secretary General, and Judge Marc FISCHBACH of the European Court of Human Rights. Considering that it would be useful to have a direct feedback on the work being undertaken by the Body on the Charter for Fundamental Rights of the European Union, the CDDH decided to invite Mr Krüger and Mr Fischbach to an exchange of views at its next ordinary meeting (June 2000).

b. Stability Pact for South East Europe

6. The CDDH was informed on the current situation regarding the Council of Europe’s contribution to the Stability Pact for South East Europe, a European Union led initiative. The Working Table I (Democratisation and Human Rights) had endorsed several of the Council of Europe’s suggestions, mainly concerning good governance and "human rights and minorities", these ideas were now being implemented. Current items of interest which are underway include, inter alia:

- a seminar of National Human Rights Institutions, including Ombudsmen Institutions which will take place in December 1999 in Budapest. The aim of this seminar will be to discuss the usefulness of setting up such institutions in South-East Europe or improving their effectiveness where they already exist. The possibility of setting up a network which could provide a forum for the exchange of information and ideas will also be addressed;

- a Conference on minorities, inter-ethnic relations and the multi-ethnic society, planned in Ljubljana (Slovenia) in March next year with government representatives, NGOS and representatives of minority groups. This should provide a starting point for addressing minority issues in the region.

7. The next meeting of the Working Table I will take place on 24 January 2000.

II. Exchange of views with invited guests

a. Council of Europe Commissioner for Human Rights

8. As the Council of Europe Commissioner for Human Rights, Mr Alvaro GIL-ROBLES had been unable to participate in the present meeting, the CDDH decided to invite him to their meeting in June 2000 for an exchange of views. For his part, the Director of Human Rights, Mr Pierre-Henri IMBERT, informed the CDDH of the spirit of co-operation between the Directorate of Human Rights and the Commissioner, and in particular at the present stage when that office is being set up. The CDDH, however, shared the concern expressed by the Director, over a reduction in human and budgetary resources, already limited, which may result from the creation of such a body.

b. Chairperson of the European Committee of Social Rights (EC-SR)

9. Mr Matti MIKKOLA, Chairman of the European Committee of Social Rights, spoke about recent developments and future perspectives of the EC-SR. In particular, he mentioned the entry into force of the Additional Protocol providing for a system of collective complaints on 1 July 1998 and of the Revised Social Charter on 1 July 1999. He also expressed the opinion that the future Charter of Fundamental Rights of the European Union should also include social rights, inter alia as a consequence of the well-established principle of the indivisibility of human rights.

c. Guests to be invited to the next meeting

10. The CDDH agreed to the Bureau’s proposal to invite the Ukrainian Ombudsperson, Mrs Nina Ivanovna KARPACHOVA, to an exchange of views on the situation of persons sentenced to the death penalty at its 48th meeting (June 2000).

III. Monitoring exercise on member States’ compliance with commitments:

a. "Monitoring" freedom of expression and information

11. The CDDH, at its last meeting (22-25 June 1999, CDDH (99) 10, paragraph 48) agreed with the view of its Bureau that its Group of Specialists on Access to Official Information (DH-S-AC) should now be given the necessary time to fulfil its specific terms of reference, the preparation of a non-binding legal instrument on access to official information, relieving it for the time being of the work concerning the « monitoring » of freedom of expression and information (evaluation of existing rules and practices in the member States concerning secrecy of and access to official information). For this reason this item will be examined at the 49th meeting of the CDDH (3-6 October 2000) in the light of the work carried out by the DH-S-AC.

b. "Monitoring" the functioning of the judicial system

12. See GT-DH-MAT below.

IV. Other information

a. Follow-up concerning the draft Additional Protocol to the Convention on Human Rights and Biomedicine

13. The CDDH took note of the information provided by Mr Emmanuel ROUCOUNAS (Greece) on the work of the group responsible for examining the human rights aspects of the draft additional protocol on transplantation of organs and tissues of human origin to the Convention for the protection of human rights and dignity of the human being with regard to the application of biology and medicine (1997, ETS No 164), currently being prepared by the Steering Committee on Bioethics (CDBI). He explained that at the last meeting of the CDBI, various observations and comments from member States, Observers, etc. had been examined leading to some minor amendments to the draft Protocol and some major additions to the Explanatory Report. The text consequently finalised by the CDBI (5-7 October 1999) was made available to CDDH experts during the meeting.

b. Reservations made by member States to the ECHR

14. The CDDH took note of the situation concerning the reservations and declarations to the ECHR and its protocols. The basis for discussion was provided by document CDDH (99) 22 revised which contains three parts: (I) reservations and declarations still valid; (II) replies of experts on their position and (III) reservations and declarations having been withdrawn.

15. During a tour de table on the state of affairs, different national situations were mentioned (no reservations or declarations at all; parts of the reservations or declarations already withdrawn; declarations of a mainly territorial nature). Other experts reported that this question was under consideration within their authorities.

16. The CDDH decided that experts could send in any comments to the Secretariat before 29 February 2000 on the information set out in document CDDH (99) 22 revised. The CDDH will repeat this useful exercise once a year, the aim being to encourage Contracting Parties to reconsider their position on some of their reservations and to restrict their scope, or lift those which have become obsolete or have never been applied in practice.

c. ECRI and the preparation of the Conference against racism

17. Mrs Isobelle JACQUES, of the Secretariat of the European Commission against Racism and Intolerance (ECRI) informed the CDDH on the preparations for the above mentioned Conference which will take place in mid-October 2000. She pointed out that four broad topics had been adopted for in-depth discussion by the working groups of the Conference: "Legal Protection against racism and related discrimination at sub-national, national, regional and international levels" ; "Policies and practices to combat racism and related discrimination at sub-national and national level";" Education and awareness-raising to combat racism, related discrimination and extremism at sub-national, national , regional and international levels" and lastly "Information, communication and the media". Rapporteurs or Chairpersons for the working groups have not yet been appointed.

18. In addition, she pointed out that ECRI was now into the second stage of country by country reports. Finally she mentioned that racism on the internet was also a subject that was currently being addressed within ECRI, the study of which should be finalised in Spring 2000. This issue may form part of the European contribution to the World Conference on Racism next year.

d. Information on the Declaration and the Programme of action on Education to Democratic Citizenship

19. The wording proposed by the expert of the Netherlands at the last meeting of the CDDH had been received favourably by the experts. It appears in Appendix VII to this report. The Secretariat was therefore instructed to include it in the meeting report and consequently draw the Committee of Ministers’ attention to the text. The CDDH expressed its wish to be kept informed on this matter and its readiness to give its opinion, if necessary, on any work which may be carried out in this context. Finally, the CDDH requested the Drafting Group for the Ministerial Conference to take this topic into consideration in its deliberations.

Item 4 of the Agenda : Organisation of the European Ministerial Conference on Human Rights (Rome, 3 - 4 November 2000)

20. The basis for discussion was provided in the document CDDH(99)24 rev. The results of the work carried out by the CDDH during the present meeting appear in Appendix IV.

Substantative issues

Other than the proposals which appear in the aforementioned document CDDH (99) 24 rev. , the CDDH examined, in particular, a proposal put forward by the Dutch expert. This expert considered that the Conference could, on the basis of a report, examine the link between humanitarian law and human rights and, more generally, the question of safeguarding human rights in conflict situations (in particular, the application of Article 15 of the ECHR). In this regard, the connection between this topic and the abolition of the death penalty in war time was brought up. Other experts also thought this a worthwhile subject; which had also been suggested by the DH-DEV for its future work. This being said, one expert wondered in what way this subject could be linked to the theme of the Conference and another expert wondered whether the CDDH would have time to examine this complex issue and produce texts that could be submitted at the conference. It was however proposed, that this topic could find an appropriate place in the framework of the Declaration which will be drawn up on the general theme of the Conference.

22. Some experts emphasised the fact that that the Conference should concentrate on the ECHR, in particular the achievements over the first 50 years of existence of this instrument. It was pointed out in this connection that, in addition to the Conference, a commemorative ceremony was planned: it would provide an opportunity to take stock of the key contributions the ECHR had made to the protection of human rights in Europe. In addition, it was felt that the Conference could underline the role of the Council of Europe as the reference framework for human rights in Europe. Any initiative in this field concerned it, as it was necessary to ensure the compatibility of the rules applicable and give the Organisation a high profile in a field in which it played a leading role.

23. After this discussion, the CDDH retained the following theme and two sub-themes for the Conference:

Theme: «The European Convention on Human Rights at 50 : What future for the Protection of Human Rights in Europe ? »

Sub-Theme 1 : «Institutional and Functional Arrangements for the Protection of Human Rights at European Level»

Sub-Theme 2 : «Respect for Human Rights as a Key Factor for Democratic Stability and Cohesion in Europe : Current Issues»

24. The various elements that the CDDH identified within each of these topics appear in the aforementioned Appendix IV.

Organisational aspects

25. The calendar for preparatory work adopted by the CDDH appears in Appendix IV.

26. For the preparation of the relevant texts to submit to the Conference (a draft declaration on the theme of the Conference and a draft resolution on each of the sub-themes), the CDDH decided on the following working methods:

- Two member States should each take responsibility for drafting a report on one or the other of the sub-themes. These reports should not be confined to a description of national situations, but should rather contain a general analysis of the issue, the exact content of the report being the sole responsibility of the rapporteur country. The CDDH invited those member States interested to let the Secretariat know, before 29 February 2000. The various candidatures will be examined by the CDDH at its extraordinary meeting on 9-10 March 2000, in order to select the two countries which would most aptly represent the geopolitical diversity of the Council of Europe;

- Any other member State which so wishes may submit documents, which will be laid out in the conference room, and in which they may tackle any aspect of the sub-themes. At its meeting in Rome on 21-23 February 2000, the drafting Group will propose the manner in which these documents should be prepared. They should be submitted to the Secretariat in good time for the 49th meeting of the CDDH (3-6 October 2000), so that the latter can take note of them and that the Secretariat can then go ahead with their translation and printing as documents for the Conference (see calendar which appears in Appendix IV);

- The Drafting Group should embark without delay on the preparation of the draft texts for submission to the Conference. In due course it would take account of the reports prepared under the responsibility of the rapporteur States and any other documents submitted by the member States for the Conference.

Drafting Group (CDDH-GR)

27. With regard to the composition of the Group, the Steering Committee decided to include the Netherlands expert in the Group, which would therefore comprise experts from the following 11 countries: Austria, Belgium, Finland, France, Italy (Chair of the Group), the Netherlands, Poland, Romania, Sweden, Switzerland and the United Kingdom. The representative of the Holy See would also participate, at his authority's expense. Other experts could take part at their authorities' expense, but it would be preferable that the Group should not become too large as this would make it difficult to draft effectively.

28. With regard to the places and dates of the CDDH-GR meeting, the Steering Committee decided on the following:

- a meeting in Rome from 21 to 23 February 2000 on the occasion of the Forum of NGOs during which the latter will prepare proposals concerning the texts to be submitted to the Conference. In answer to a question from an expert, it was specified that steps would be taken to avoid any expense over and above that entailed by a meeting to be held at the Council of Europe headquarters;

- a meeting on 4 and 5 September 2000 and meetings on the occasion of the CDDH's plenary meetings ([9 - 10 March 2000]; 20-23 June 2000; 3-6 October 2000).

Forum of NGOs

29. In connection with the co-ordination of its own work with that of the NGOs taking part in the Forum, the CDDH decided that on 21 February 2000 the CDDH-GR and the NGOs meet separately to allow the latter to co-ordinate their approaches and come up with joint proposals. On 22 February 2000, the Drafting Group would meet the NGOs, who would finish their meeting in Rome on that day. On 23 February 2000 the Drafting Group would consider means of taking account of the various proposals.

30. With regard to which NGOs should be invited, the CDDH decided that a wide range be invited, but that account be taken of two criteria: the representativeness of the NGOs (which should be sufficiently representative internationally or at least in Europe) and the link between their main activities and one of the subjects to be dealt with at the Ministerial Conference.

31. The CDDH considered that the letter of invitation should be sent out as soon as possible, along with the preliminary draft programme of the Conference. The letter should state that the purpose of the Forum was to allow these NGOs to make suggestions that would contribute to work on texts concerning subjects selected by the CDDH, without opening up debates on other subjects. The NGOs would be invited not only to attend the Forum but also, if they so wished, to submit written observations for examination by the CDDH-GR in due course.

Item 5 of the Agenda : Awareness-raising activities that may be conducted to mark the 50th anniversary of the ECHR (4 November 2000)

32. The CDDH took note with satisfaction of the initiatives originating in the various Council of Europe departments in respect of activities to be carried out in 2000 to mark the 50th anniversary of the ECHR (document CDDH(99)25).

33. It noted that a special account would be opened on that occasion for any voluntary contributions member States might make to allow activities which could not be carried out with the zero growth budget envisaged for 2000 to go ahead.

The CDDH noted that voluntary contributions intended for the Directorate General of Human Rights would, in particular, make it possible to have the ECHR translated into all the languages of the member States and have the various language versions widely disseminated. In addition, the possibility of producing a video-cassette for the general public, explaining the ECHR and how it worked, could be envisaged. The member States concerned could produce the different language versions of the video-cassette as a contribution to the 50th anniversary, for example by calling on their public television corporation's dubbing services.

Item 6 of the Agenda: State of work of the committees and groups answerable to the CDDH

a. DH-DEV

35. The CDDH took note of the report of the 26th meeting of the Committee of Experts for the Development of Human Rights (DH-DEV) which had taken place from 15-18 November 1999 (DH-DEV (99) 5) and of the draft final activity report which the DH-DEV had elaborated on the drafting of an additional Protocol to the European Convention on Human Rights (ECHR) broadening, in a general fashion, the field of application of Article 14 (non-discrimination) (document DH-DEV (99) 5 addendum).

36. The CDDH noted that the DH-DEV had prepared this draft final activity report without having had the possibility to study the opinions which the European Court of Human Rights and the Parliamentary Assembly had been requested to provide on the draft Protocol. As neither of these two opinions had become available to the CDDH in the meantime, the CDDH held a brief discussion of a procedural nature on the next steps to be taken.

37. The Secretariat informed the committee that it expected that the Court's opinion would be forwarded to the CDDH by mid-December, whereas the adoption of the opinion of the Parliamentary Assembly was expected by the end of January 2000.

38. The discussion revealed a general agreement that it would be inappropriate for the CDDH at this meeting to adopt the final activity report as proposed by the DH-DEV but that an extraordinary meeting of the CDDH could be envisaged in February or March 2000 in order to examine the opinions of the Court and the Parliamentary Assembly, with a view to transmitting the final text of the draft Protocol and the draft explanatory report to the Committee of Ministers.

39. Some delegations also mentioned certain substantive issues in the margin of this procedural debate.

40. One expert proposed that the following text be added to paragraph 19 of the draft explanatory report:

"It follows from the jurisprudence of the Convention organs that in the field of social, economic and other policies it is for the national authorities to make the initial assessment of the aims and the means by which they are pursued. Their margin of appreciation must be wider in such areas than it is in others (Commission decision in Case No. 12947/87, General Practitioners v. Denmark of 12 July 1989)."

41. Another expert asked for a reconsideration of the question of distinctions between nationals and aliens stating that equality in the area of social affairs might entail very serious financial consequences for the State. Yet another delegation felt that it would be inappropriate to reopen the question of a possible restriction clause on this point, a matter which had already been discussed, and rejected, during the earlier stages of the drafting work. This delegation however reiterated that it had serious doubts as to the adequacy of a draft protocol to the ECHR as an instrument for combating racism.

42. The Turkish expert requested that the following statement be included in the final activity report to be submitted to the Committee of Ministers:

"The Turkish authorities consider that draft Protocol No.12 to the ECHR is not an appropriate instrument, given the initial purpose of the exercise, which was to combat racism and establish equality between women and men, since the text of the draft covers only one aspect, that of discrimination."

43. Finally one expert wished to stress that he was in favour of adoption of the current draft protocol but that he could accept awaiting the opinions of the Court and the Parliamentary Assembly.

44. At the end of the discussions on this activity the CDDH agreed to adopt a short final activity report for the attention of the Committee of Ministers (this report is reproduced in Appendix III to the present report), decided to ask the Committee of Ministers' authorisation for holding an extraordinary meeting of the CDDH of two days in February/March 2000 and at the same time asked the Committee for an extension of its ad hoc terms of reference for this activity until 31 March 2000.

45. The CDDH noted that the necessary financial resources for holding this extraordinary meeting of the CDDH could be made available by a cancellation of the spring meeting of the DH-DEV next year. Therefore it would not place an additional burden on the budget of the Organisation.

46. Finally, the CDDH took note of the DH-DEV's proposals for future work (contained in document DH-DEV (99) 5, in particular Appendix V) and agreed to provide orientations for this future work at its next regular meeting in June 2000.

b. DH-PR

47. The Chair of the Committee of Experts for the Improvement of Procedures for the Protection of Human Rights, Mr Carl Henrik EHRENKRONA (Sweden), reported on the proceedings of the Committee's 46th meeting (7-10 September 1999, DH-PR(99)18).

48. He gave a detailed account of the work that had led to the preparation of the draft Recommendation and Explanatory Memorandum concerning the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights (DH-PR(99)18, Appendix III). These texts were being submitted to the CDDH for possible adoption and subsequent transmission to the Committee of Ministers.

Examination of the draft Recommendation and Explanatory Memorandum

- General comments

49. Most of the experts were wholeheartedly in favour of the adoption of the text submitted by the DH-PR. Several of them commended the text for its quality and stressed the desirability of such a recommendation, which met the need to encourage all the Contracting Parties to the ECHR to ensure that their legal systems made appropriate provision, as far as possible, for restitutio in integrum, in particular by providing, in certain exceptional situations, for the possibility of reopening legal proceedings.

50. These experts stressed that the draft recommendation struck the right balance between the need to defend the interests of the injured party - restitutio in integrum of the situation existing before the violation - and respect for the latitude allowed to Parties in the choice of appropriate means of remedying the consequences of the violation. The draft recommendation did not seek to force Parties to re-open particular proceedings; it merely encouraged them to make provision for such a possibility in their legal systems in exceptional cases in which it emerged from the Court's judgment that the applicant was continuing to suffer very serious consequences on account of the decision in question, and where the violation originated either in a domestic decision that contrary to the Convention on substantive grounds, or in procedural errors or shortcomings of such seriousness that they cast serious doubt on the outcome of the domestic proceedings in dispute

51. While sharing a keen concern to ensure that the rights of individual applicants could be restored, especially in criminal cases, several experts had misgivings about what they saw as the unduly large scope of the prospective recommendation, which invited member States to provide for the reopening not only of criminal cases but also of civil and administrative cases. These experts considered that the draft recommendation concerned only extremely rare cases, where the reopening of the case was in fact the only solution but, in seeking to achieve this aim, it opened the way to interpretations that could distort its purpose: it was likely that lawyers would call for the reopening of all sorts of cases, thereby unjustifiably overburdening the courts, with the risk that the Court of Human Rights would become the fourth level of jurisdiction, which was not its role. Moreover, some experts were afraid that the possibility of reopening proceedings would unacceptably prolong the already lengthy proceedings, including in Strasbourg. One expert felt that the draft recommendation should concentrate on cases where substantive rights rather than procedural rights had been infringed. Some experts even had misgivings about the desirability of the prospective recommendation.

52. Other experts countered these concerns with the argument that the risk of abuse was averted by the latitude which the draft recommendation gave to states to assess the scope of any specific legislation on the reopening or re-examination of cases. More generally, it was also argued that the Committee of Ministers' experience made clear the desirability of a recommendation in this field and, indeed, that the Committee of Ministers had already settled the issue in adopting the terms of reference it had given to the CDDH.

- Specific comments

53. One expert referred to the problems which the first two paragraphs of the preamble continued to pose for her authorities, in that they could be interpreted as establishing a direct link between Article 46 and measures other than those stated in Article 41 of the ECHR. Nevertheless, as a compromise measure, the expert felt able to accept the texts. He would prefer that the reference to "general measures" in the second paragraph be deleted to avoid confusion, or that the phrase "to remedy the situation caused by the violation of the Convention" be deleted, again for the sake of clarity. The CDDH endorsed the latter proposal.

54. Some experts said they would prefer that the expression "certain circumstances" in the second paragraph of the preamble be replaced by "exceptional circumstances", to make it quite clear that cases could be reopened only exceptionally. Other experts made the point that this idea was already put across in paragraph d) of the preamble, whereas the purpose of paragraph b) was to stress that there were circumstances in which restitutio in integrum could be achieved only by measures other than just satisfaction. It was necessary at all costs to ensure that the text did not suggest that it was restitutio in integrum that should be exceptional. The CDDH therefore decided to keep the text suggested by the DH-PR.

55. Certain experts stressed the need to take account of the interests of third parties acting in good faith if cases were reopened, as it could sometimes be a long time before they were reopened, and in the intervening period other legitimate third-party interests could have arisen. The point was made that the matter was referred to in paragraph 15 of the explanatory memorandum.

56. The Turkish expert, referring to paragraph 12 of the draft explanatory memorandum, said she wished it to be recorded in this report that her authorities had suggested the following alternative wording:

"Sub-paragraph (ii) is intended to indicate, in cases where the above-mentioned conditions are met, the kind of violations in which re-examination of the case or reopening of the proceedings will be of particular importance footnote 1 ."

In addition, the same expert expressed the wish for her proposal of an alternative text for the second paragraph of the preamble to be recorded in the present report, as it appears in the meeting report of the DH-PR (DH-PR (99) 18, paragraph 11):

"Bearing in mind that certain circumstances may entail the adoption of measures, other than just satisfaction awarded by the Court in accordance with Article 41 of the Convention to remedy the situation caused by the violation of the Convention, so that the injured party is put, as far as possible, in the same situation as he/she enjoyed prior to the violation (restitutio in integrum)."

58. Following this discussion, the CDDH adopted the draft Recommendation and Explanatory Memorandum, as set out in Appendix V to this report. It decided to submit the draft Recommendation to the Committee of Ministers for possible adoption and ask it to authorise publication of the Explanatory Memorandum.

Future work of the DH-PR

59. The Chair of the DH-PR reported on the progress of the committee's work on the possible content of the revision of the Committee of Ministers' Rules of Procedure following the entry into force of Protocol No.11 to the ECHR and the procedure to be followed. With a view to this revision, the DH-PR had asked the CDDH to authorise it to set up a working party to continue preparing the draft Rules of Procedure of the Committee of Ministers, revised in respect of the application of Court judgments. Endorsing its Bureau's suggestion and bearing in mind the fact that the relevant terms of reference issued by the Committee of Ministers expired on 31 December 2000, the CDDH authorised the DH-PR to set up such a working party. It noted that the composition of the group (a maximum of 11 members, including the group chair) would be decided on by the DH-PR in April 2000 and that the group would meet on 8 and 9 June 2000.

c. DH-MIN

60. Finally, the CDDH took note of the final activity report on dispersed ethnic minorities (document DH-MIN (99) 7) and instructed the Secretariat to forward it to the Committee of Ministers before 31 December 1999, in accordance with the terms of reference received by the DH-MIN from the Committee of Ministers.

61. On this topic, the issue was raised over the exact role the CDDH has to play in the work of the DH-MIN. The DH-MIN, according to its terms of reference, is a subsidiary body of the Steering Committee. However, its ad hoc terms of reference were received directly from the Committee of Ministers which has led to some misunderstanding over the responsibility of the CDDH with regard to the execution of the DH-MIN’s ad hoc terms of reference. To facilitate the monitoring and management of its activities, the CDDH feels that the DH-MIN needs to be regarded as a similar entity to the other Committees of Experts answerable to the CDDH, like the DH-DEV and DH-PR.

d. DH-S-CO

62. Publications prepared by the former CDDH Group of Specialists on conscientious objection to compulsory military service (DH-S-CO). The CDDH was informed that the final version of the comparative study on conscientious objection to compulsory military service in member States prepared by the Swiss Institute of Comparative Law had now been completed (CDDH (99) 2 def.). It agreed to the study being published so that it could be used as an source of information for various activities on conscientious objection to compulsory military service, and in particular local and regional seminars. The brochure (CDDH (99) 12 def.) and the leaflet on conscientious objection to military service are also in their final stages and should be completed in time for the next meeting of the CDDH.

e. DH-S-AC

63. The Chair of the Group of Specialists on Access to Official Information, Ms H. JADERBLOM (Sweden), reported on the proceedings of the group's 4th meeting (5-8 October 1999, DH-S-AC(99)8). The member States were showing growing interest - as had been apparent at a round table held during the group's meeting - in making provision in domestic law for measures to ensure open government and public access to official information. These issues were also being examined by the European Union. There therefore seemed to be a fairly favourable context in Europe for the activities covered by the DH-S-AC's terms of reference. The instrument being drawn up should therefore influence the efforts currently being made in several member States in this field.

Work on the drafting of the instrument

64. The CDDH was pleased with the progress made by the group and the quality of the text being prepared. It was aware of the sensitive nature of the subject and the need for the DH-S-AC to hold further meetings on it. It noted that the group wanted to make as much progress as possible in 2000, with a view in particular to the Ministerial Conference. Nevertheless, the CDDH preferred to allow the DH-S-AC to continue its work beyond its current terms of reference rather than forcing it to complete the draft instrument in haste. While acknowledging the advantage of achieving results, if at all possible, in time for the Ministerial Conference, the CDDH indicated that the drafting work should be carried out independently of the timing of the conference.

65. As for the legal nature of the prospective instrument, the CDDH noted that it was currently in the form of a recommendation but that a decision on the matter still had to be taken.

Possible contribution to the Rome Conference

66. The CDDH agreed with the DH-S-AC that the subject of its terms of reference should be included among those to be discussed at the Ministerial Conference. It therefore asked its Drafting Group (CDDH-GR) to examine the "reflections" from the group's last meeting (DH-S-AC(99)8, Appendix IV).

Future work of the DH-S-AC

67. The CDDH acceded to the DH-S-AC's request regarding its 5th meeting, which would therefore be held, exceptionally, over four days, from 22 to 25 February 2000, so that the sectors concerned could be given a hearing on the first day of the meeting. The CDDH considered that such a hearing could do much to help the group's work progress. On the other hand, the CDDH did not consider it essential, or indeed possible, given financial constraints, the heavy schedule and the limited human resources of the Secretariat, to arrange an additional meeting for the group. As it had already indicated, the CDDH envisaged, instead, renewing the terms of reference for 2001 if this proved necessary.

Request for observer status

68. With regard to the request for observer status with the DH-S-AC from the non-governmental organisation Article XIX, the CDDH observed that there was no consensus in the group as to the desirability of granting such status since, for practical reasons, a slight majority of experts considered it preferable not to enlarge the group as this might undermine its effectiveness. Other experts, on the other hand, thought it paradoxical that a group working on access to information should advise against the participation of an NGO which was particularly active in the specific field it covered.

69. It was pointed out that observers attending meetings of committees or groups had a constructive role to play and could make a worthwhile contribution provided they kept to their role as observers and not that of a committee or group member. Once this condition had been made clear, the CDDH decided to suggest to the Committee of Ministers that, when it adopted this report, it grant Article XIX observer status with the DH-S-AC.

f. GT-DH-MAT

Draft Recommendation on the Right to the Satisfaction of Basic Material Needs of Persons in Situations of Extreme Hardship

The CDDH resumed examination of the draft Recommendation and draft Explanatory Memorandum on the right to the satisfaction of basic material needs of persons in situations of extreme hardship (CDDH (99) 10, Appendix IX), with a view to their possible adoption and subsequent forwarding to the Committee of Ministers.

71. With reference to the draft Recommendation, one expert explained the difficulties faced by his authorities with regard to the very principle of a recommendation which advocates the recognition of an individual and enforceable right to the satisfaction of basic material needs, because of the considerable financial implications that the recognition of such a right may have. It was pointed out however that the draft text only covers persons in extreme hardship, a situation which by its nature, would only imply minimum benefits to be paid and for a short period of time. In addition, the CDDH decided to include a reference to stateless persons among the various categories of persons mentioned as examples in the draft Explanatory Memorandum.

72. A discussion took place over clarifications to be made in the draft Explanatory Memorandum concerning basic medical care. It was decided that these are understood as being of an urgent nature, and to include urgent surgical operations.

73. Following this examination, the CDDH adopted the draft Recommendation and draft Explanatory Memorandum on the right to the satisfaction of basic material needs of persons in situations of extreme hardship as it appears in Appendix VI.

74. Mr. John MURRAY, Secretary to the European Committee on Social Cohesion (ECSC), informed the CDDH of his Committee’s interest in the work of the CDDH, and in particular in the draft recommendation the right to the satisfaction of basic material needs of persons in situations of extreme hardship. It considered that such a text could contribute to strengthening the work of the Council of Europe in the social field . In addition, he pointed out that this instrument was a concrete result of the Conference on Human Dignity and Social Exclusion (Helsinki, 18-20 May 1998).

Exercise on monitoring of the functioning of the judicial system

75. Document CDDH (99) 15 contains the replies to the questionnaire concerning the implementation by member States of Recommendation No. R (93) 1 on effective access to the law and to justice for the very poor. The CDDH took note that, so far, seventeen replies were received by the Secretariat. In order to have a fuller picture about the implementation of this Recommendation, experts who have not yet done so, were invited to send any comments to the Secretariat before 29 February 2000. The CDDH decided to entrust to the non-governmental organisation INTERIGHTS, which was particularly active in the area of access to justice (see CDDH-BU (99) 2, paragraph 15) the task of analysing the replies to the questionnaire in aforementioned document CDDH (99) 15 . The Secretariat, in consultation with the Chairman should the need arise, was instructed to go ahead with the necessary arrangements.

Next meeting of the GT-DH-MAT (17-19 May 2000)

76. The CDDH asked its Working Group to examine the replies provided by experts concerning national situations in the field covered by the draft Recommendation mentioned above (paragraph 73). The basis for this work will be provided by the information which is set out in document CDDH (99) 26, which contains the replies submitted by eighteen experts (Austria, Belgium, Denmark, France, Germany, Hungary, Iceland, Italy, Latvia, Liechtenstein, Malta, Netherlands, Russian Federation, San Marino, Sweden, Switzerland, Ukraine and United Kingdom). To this end, other experts are invited to send their possible contributions to the Secretariat before 29 February 2000.

g. DH-S-DEM

77. The CDDH instructed the Secretariat to take the necessary measures with a view to publishing document CDDH (99) 16, which contains a declassified version of the Final Activity Report of the former Group of Specialists of the CDDH on Democratic Strategies for dealing with Movements threatening Human Rights.

Item 7: Draft opinions of the CDDH

78. As a preliminary remark, the CDDH indicated that it had not received the texts submitted by the Secretariat until the start of the current meeting, this being the case as the Secretariat itself had only received the requests for opinions at a late date. On a procedural point, the CDDH agreed with the Bureau (CDDH-BU (99) 2, paragraph 17) that, in future, it would be preferable if the CDDH were only called upon to give its opinion once a draft Recommendation had been submitted by a Steering Committee to the Committee of Ministers, and the latter has requested an opinion from the CDDH, and not during the preliminary stage when a draft was being drawn up within a committee of experts. In any case, any request for an opinion should allow the CDDH a reasonable period of time for action, so that experts can at least study it and send in their observations to the Secretariat.

a. Draft opinion on Recommendation 1402 (1999) of the Parliamentary Assembly on control of internal security services in Council of Europe member States

79. The CDDH pointed out that the text submitted by the Secretariat was only received at the beginning of the meeting. There was, nevertheless, a consensus in the committee that it should not recommend the drafting of a binding legal instrument in this field. The CDDH pointed out that there was already a substantial amount of case-law on the subject from the European Court of Human Rights. In its opinion, the possibility of drafting a recommendation could be considered but, if the idea was adopted, the appropriate CDPC and CDCJ bodies should be responsible for this. The CDDH could, if necessary, then make a contribution from its own perspective, i.e. that of human rights.

80. The CDDH therefore adopted its opinion, as set out in Appendix VIII to this report.

b. Draft opinion on the draft Recommendation of the CJ-EJ (CDCJ) on the freedom of exercise of the profession of lawyer

 

81. The CDDH examined the draft opinion prepared by the Secretariat on the draft Recommendation prepared by the Committee of Experts on the Efficiency of Justice (CJ-EJ), a subordinate body of the European Committee on Legal Co-operation (CDCJ), on the freedom of exercise of the profession of lawyer (document CDDH (99) 21 rev). In this connection, one of its experts underlined the problems which arise for an individual, in terms of equality in access to justice, when the lawyer appointed to defend him or her does not have sufficient knowledge of the language used in the Court where he or she is to be tried. This expert felt that it would be appropriate if public authorities were able to impose obligations in this field. The CDDH considers that the explanatory memorandum could mention this issue. In addition, the Steering Committee would prefer that the draft recommendation adopt a non-exhaustive list of motives for discrimination as close as possible as that which appears in Article 14 of the ECHR, in order to ensure coherence between the wording of the two texts.

82. Following this discussion , the CDDH adopted the draft opinion as it appears in Appendix IX.

Item 8: Representatives of the CDDH in other committees and meetings

83. Mrs Carmen PODGOREAN (Romania) gave a comprehensive report on her participation at the Conference "Gender Mainstreaming : a Step into the 21st Century" (Athens, 16-18 September 1999). She pointed out that a full report of the Conference was available for those experts interested.

84. The CDDH also designated Mr Lipot HÖLTZL (Hungary) to represent the Committee at the "Regional Meeting on Independent National Human Rights Institutions (including ombudsman institutions)" which is being organised by the Council of Europe, in co-operation with the Office of the Parliamentary Commissioner for Human Rights of the Republic of Hungary, as part of the Stability Pact for South-Eastern Europe. The meeting will take place from 13-14 December 1999 in Budapest. (also see paragraph 6 above)

85. Mr. John MURRAY, Secretary to the European Committee on Social Cohesion (ECSC) informed the CDDH that his Committee had granted the request by the CDDH to be invited to its meetings from now on. The CDDH expressed its satisfaction at this information and decided that its representative on this Committee Mr Teimuraz RAMISHVILI (Russian Federation), should take part in the whole of the meeting of this Committee in the future and not just one day.

Item 9: Elections

a. Bureau of the CDDH

86. In accordance with the relevant clauses of Articles 17 and 18 to Appendix 2 to Resolution (76) 3 on Committee Structures, Terms of Reference and Working Methods, the CDDH held elections at the end of its present meeting.

87. These elections concerned the posts of Chair, Vice-Chair and one member of the Bureau. It was decided unanimously to:

* re-elect its present Chairman, Mr Guido RAIMONDI (Italy), for a period of one year to 31 December 2000. This term of office may not be renewed;

* re-elect its present Vice-Chairman, Mr Krzysztof DREWICKI (Poland), for a period of one year to 31 December 2000. This term of office may not be renewed;

* re-elect Mr Jan LATHOUWERS (Belgium), member of the Bureau, for a period of two years to 31 December 2001. This term of office may not be renewed.

b. Chairpersons of Committees DH-DEV and DH-PR

88. In accordance with article 17, paragraph a of Appendix 2 to the Resolution (76) 3, the CDDH held elections for the Chairpersons of the DH-DEV and the DH-PR. It decided unanimously to:

* elect Mr Silvio CAMILLERI (Malta) as Chairman of the DH-DEV for a period of one year to 31 December 2000. This term of office may be renewed once for a period of one year.

* re-elect the present Chairman of the DH-PR, Mr Carl Henrik EHRENKRONA (Sweden) for a period of one year to 31 December 2000. This term of office may not be renewed.

89. The CDDH shares the gratitude expressed by the DH-DEV to its outgoing Chairman, Mr Herman VON HEBEL (Netherlands), for the excellent manner with which he has led the work of the Committee of Experts.

Item 10: Dates of the next meetings

90. The Secretariat proposes the following dates:

 

CDDH-GR (Rome) 21-23 February 2000
NGO Forum (Rome) 21-22 February 2000
5th DH-S-AC 22-25 February 2000
[Extraordinary meeting of the CDDH] [9 – 10 March 2000]
47th DH-PR 12-14 April 2000
3rd GT-DH-MAT 17-19 May 2000
55th Bureau of the CDDH (Paris) 26 May 2000
2nd DH-PR-GT 8-9 June 2000
48th CDDH 20-23 June 2000
CDDH-GR 4-5 September 2000
48th DH-PR 6-8 September 2000
56th CDDH-BU (Paris) 22 September 2000
6th DH-S-AC 27-29 September 2000
49th CDDH 3-6 October 2000
CDDH (Rome) 2 November 2000
Ministerial Conference (Rome) 3-4 November 2000
27th DH-DEV 22-24 November 2000
[DH-MIN dates to be fixed]

Item 11: Questions which could be placed on the Agenda of the next meeting

91. During the meeting, several experts commented on the very full agenda with which they are faced during meetings of the CDDH, as well as the problems which arise from practical difficulties (delays in receiving documents, etc.). It was felt that the Committee should perhaps try to be more selective on the issues it is asked to deal with, and perhaps use different methods of addressing certain topics (eg. where possible, use written contributions, limit "tour de table" to essential items, etc.). It was therefore decided that a review of working methods of the CDDH would be included on the Agenda for the next meeting. To prepare for such a "brain-storming" session, experts are requested to submit their ideas and suggestions on the subject, as well as any practical problems they encounter, so that the Secretariat can prepare a paper which can be used as a basis for discussion on this item. Experts’ contributions should reach the Secretariat before 29 February 2000.

92. Despite what has been mentioned above, the CDDH nevertheless expressed the wish to go ahead with the exchanges of views planned for the next meeting of the CDDH, i.e. with Mr Hans-Christian KRÜGER or Judge Marc FISCHBACH (see paragraph 5), with the Council of Europe Commissioner for Human Rights, Mr Alvaro GIL-ROBLES (see paragraph 8), and with Mrs Nina Ivanovna KARPACHOVA, Ombudswoman of Ukraine (see paragraph 10).

93. Following this discussion, the Secretariat proposes to the CDDH to retain, in principle, the following items for its next meetings:

[Extraordinary meeting (9-10 March 2000), subject to approval by the Committee of Ministers]

Items 1 and 2 : Opening of the meeting, adoption of the agenda and the order of business

Item 3: Draft Protocol N° 12 to the European Convention on Human Rights and draft Explanatory Report

Item 4: Organisation of the European Ministerial Conference on Human Rights (Rome, 3-4 November 2000): examination of the results of the NGO Forum and the meeting of the CDDH-GR (Rome, 21-23 February 2000)

48th Meeting (20 – 23 June 2000)

Items 1 and 2: Opening of the meeting, adoption of the agenda and order of business

Item 3: Developments in the international protection of human rights

I. General exchange of views

a. Information on the Charter of Fundamental Rights of the European Union

b. Information on the Stability Pact for South East Europe

II. Exchange of views with invited guests

III. "Monitoring" the functioning of the judicial system

Item 4: Organisation of the European Ministerial Conference (Rome, 3-4 November 2000)

a. Substantive issues

b. Organisational aspects

Item 5: State of work of the committees answerable to the CDDH

a. DH-PR

b. DH-MIN

c. DH-S-AC

d. GT-DH-MAT

Item 6: Other business

a. Working methods of the CDDH

b. Representatives of the CDDH in other committees and meetings

c. Dates of the next meetings

d. Questions which could be placed on the Agenda of the next meeting

94. A recapitulation of the various contributions experts are invited to send in to the Secretariat before 29 February 2000 appears in Appendix X.

Item 12: Other business

* Situation of the Secretariat of the CDDH

95. Mr Pierre-Henri IMBERT, Director of Human Rights, explained the present situation of the Secretariat. One principal administrator, helped by a part-time temporary member of staff, by an administrative assistant part-time and by a secretary, has the responsibility of all CDDH meetings and all its subordinate bodies (committees of experts and groups of specialists). This reflects the very difficult conditions in which the Directorate of Human Rights must carry out the tasks entrusted to it, which are more and more numerous but without benefiting from any increase in human resources.

96. Whilst appreciating the quality of the work being carried out by its Secretariat, the CDDH considers it essential that the latter be granted further human resources. This reinforcement of human resources is all that more urgent as the Steering Committee must now prepare for the Ministerial Conference. In addition to the personnel mentioned in the previous paragraph, the CDDH considers that, as a minimum, a second full-time administrator should be appointed to the Secretariat of the Steering Committee. It therefore asks the Committee of Ministers that the Secretary General take the necessary steps for:

(i) an additional A2/A3 Administrator to be appointed permanently to the Secretariat of the CDDH;

(ii) temporary reinforcement to be granted to the Secretariat of the CDDH with a view to preparing the European Ministerial Conference on Human Rights (Rome, 3-4 November 2000).

* Recommendation 1380 (1998) of the Parliamentary Assembly on human rights of conscripts

97. For CDDH experts’ information, document CDDH (99) 19 contains the texts of the recommendation and of the resolution as well as the reply from the Committee of Ministers.

* Information on public access to Council of Europe documents issued with a security classification

98. The CDDH took note of the recent Secretary General’s Instruction N° 39 on public access to documents issued with a security classification. It also noted that Mr Patrick TITIUN, Administrator in the Directorate of Legal Affairs, will comment on this text at the next ordinary meeting of the CDDH (20-23 June 2000).

Appendix I

 

LISTE DES PARTICIPANTS / LIST OF PARTICIPANTS

 

ALBANIA / ALBANIE

Ms Tefta ZAKKA, Judge, SupremeCourt , Gjykara e Kasadonit Rr.

ANDORRA/ANDORRE

Mlle Maria UBACH, Représentante Permanente adjointe d'Andorre, STRASBOURG

AUSTRIA/AUTRICHE

Ms Ingrid SIESS-SCHERZ, Head of Division for International Affairs and General Administrative Affairs, WIEN

BELGIUM / BELGIQUE

M. Jan LATHOUWERS, Chef de Service, Ministère de la Justice , Direction générale de la législation pénale et des droits de l'homme, Service des Droits de l’Homme, BRUXELLES

BULGARIA / BULGARIE

Mr Ventzislav IVANOV, Director General of International Organizations and Human Rights, Ministry of Foreign Affairs, SOFIA

CROATIA / CROATIE

Mr Branko SOCANAC, Head of Human Rights Department, Ministry of Foreign Affairs, ZAGREB

CYPRUS / CHYPRE

Ms Mako Clerides TSIAPPAS, Senior Council for the Republic, Office of the Attorney General of the Republic of Cyprus, Law Office of the Republic of Cyprus, NICOSIA

CZECH REPUBLIC/REPUBLIQUE TCHEQUE

Mr Petr HRUBEC, Legal Adviser, Human Rights Department, Ministry of Foreign Affairs, PRAGUE

DENMARK/DANEMARK

Mr Arne BELLING, Permanent Representative of Denmark to the Council of Europe, STRASBOURG

ESTONIA/ESTONIE

Ms Gea RENNEL, 1st Secretary, Ministry of Foreign Affairs, TALLINN

FINLAND / FINLANDE

Mr Arto KOSONEN, Director, Co-Agent for the Government, Legal Department, Ministry for Foreign Affairs, HELSINKI

FRANCE/FRANCE

Mme Michèle DUBROCARD, Sous-Directrice des Droits de l'Homme, Direction des affaires juridiques, Ministère des affaires étrangères, PARIS

M. Régis DE GOUTTES, Avocat Général à la Cour de Cassation, PARIS

Mme Frédérique DOUBLET, Chef du Bureau du droit international, Ministère de l'Intérieur, Direction des Libertés publiques et des affaires juridiques, Sous-direction du contentieux, Bureau du droit international, PARIS

GEORGIA/GEORGIE

Mr Mamuka JGENTI, Head, Council of Europe and Human Rights Division, Ministry of Foreign Affairs, TBILISI

GERMANY / ALLEMAGNE

Mr Karlheinz STÖHR, Ministerialrat, Head of Division, Permanent Deputy of the Agent for Human Rights, Bundesministerium der Justiz, BONN

GREECE / GRECE

Mr Emmanuel ROUCOUNAS, Professor, Athens University, ATHENS

HUNGARY/HONGRIE

Mr Lipot HÖLTZL, Deputy Secretary of State, Ministry of Justice, BUDAPEST

ICELAND/ISLANDE

Apologised/Excusé

IRELAND/IRLANDE

Mr James GAWLEY, Legal Adviser to the Council of Europe and Human Rights sections, Department of Foreign Affairs, DUBLIN

ITALY / ITALIE

M. Guido RAIMONDI, Parquet général , Cour de Cassation, Palais de Justice, ROME

M. Pietro MARTELLO, Juge de Cour d'Appel, MILANO

LATVIA / LETTONIE

Ms Kristine MALINOVSKA ; Director of Legal Department, Ministry of Foreign Affairs, RIGA

LIECHTENSTEIN

Mr Walter OEHRY, Legal Advisor, Ministry of Foreign Affairs, BENDERN

LITHUANIA / LITUANIE

Mr Andrius NAMAVICIUS, Head of Sub-Division, Legal International Law Department, Ministry of Foreign Affairs, VILNIUS

LUXEMBOURG

Mme Brigitte KONZ, Vice-présidente du tribunal d'arrondissement de Luxembourg, LUXEMBOURG

MALTA / MALTE

Mr Geoffrey VALENZIA, Judge, Law Courts, VALLETTA

REPUBLIC OF MOLDOVA / REPUBLIQUE DE MOLDAVIE

Mr Oleg UNGUREANU, Director of the General Department for European Integration of the Ministry of Foreign Affairs, KICHINÁU

NETHERLANDS / PAYS-BAS

Mr Roeland A.A. BÖCKER, Ministry of Foreign Affairs, International Law Division, THE HAGUE

NORWAY/NORVEGE

Ms Tonje MEINICH, Legal Adviser, Legislation Department, Royal Norwegian Ministry of Justice, OSLO

POLAND/POLOGNE

Mr Miroslaw LUCZKA, Deputy Permanent Representative of Poland to the Council of Europe, STRASBOURG

Mr Krzysztof DRZEWICKI, Minister Councellor, Government Agent before the European Court of Human Rights, Deputy Permanent of the Representative of Poland to the Council of Europe, STRASBOURG

Mr Andrzey KALINSKI, Legal Adviser, Ministry of Foreign Affairs, WARSAW

PORTUGAL

M. Antonio HENRIQUES GASPAR, Procureur Général adjoint, Procuradoria Geral da Republica, LISBOA

ROMANIA / ROUMANIE

Mme Carmen PODGOREAN, Directrice, Direction pour les Droits de l'Homme et le Conseil de l'Europe, 14, rue Modrogan, Ministère des affaires étrangères, BUCHAREST

RUSSIAN FEDERATION / FEDERATION DE RUSSIE

Mr Youri BOYCHENKO, Head of Division, Department of International Humanitarian Cooperation and Human Rights, Ministry of Foreign Affairs, MOSCOU

SAN MARINO / SAINT-MARIN

Apologised/Excusé

SLOVAK REPUBLIC/REPUBLIQUE SLOVAQUE

Mme Barbara ILLKOVÁ, Directrice, Département des Droits de l'Homme, BRATISLAVA

SLOVENIA/SLOVENIE

/

SPAIN/ESPAGNE

M. Francisco Javier BORREGO BORREGO, Avocat d’Etat, Sous-Directeur Général, Chef du service juridique des Droits de l’Homme, Ministère de la Justice, MADRID

SWEDEN/SUEDE

Ms Eva JAGANDER, Director, Ministry for Foreign Affairs (FMR), STOCKHOLM

Ms Inger KALMERBORN, Deputy Director, Ministry for Foreign Affairs, STOCKHOLM

SWITZERLAND/SUISSE

M. Alain-Denis HENCHOZ, Chef de la Section des droits de l’homme et du droit humanitaire, Direction du droit international public, Département fédéral des affaires étrangères, BERNE

"The Former Yugoslav Republic of Macedonia"/"L'ex-République yougoslave de Macédoine"

Ms Elizabeta GORGIEVA, Senior Officer at the Human Rights and Minority Department, Ministry of Foreign Affairs, SKOPJE

TURKEY/TURQUIE

Mme Deniz AKÇAY, Adjoint au Représentant permanent de la Turquie auprès du Conseil de l'Europe, STRASBOURG

UKRAINE

Ms Larysa MYRONENKO, Head of the OSCE and Council of Europe Division, Ministry of Foreign Affairs, KYIV

UNITED KINGDOM/ROYAUME-UNI

Mr Martin EATON, Deputy Legal Adviser, Foreign and Commonwealth Office, LONDON

 

* * *

 

PARLIAMENTARY ASSEMBLY / ASSEMBLEE PARLEMENTAIRE

/

EUROPEAN COMMISSION / COMMISSION EUROPEENNE

/

* * *

 

OBSERVERS/OBSERVATEURS

HOLY SEE/SAINT-SIEGE

M. Giorgio FILIBECK, Conseil Pontifical "Justice et Paix", CITE DU VATICAN

UNITED STATES OF AMERICA/ETATS-UNIS D'AMERIQUE

/

CANADA

/

 

JAPAN/JAPON

Mr Pierre DREYFUS, Assistant, General Consulate of Japan, STRASBOURG

 

* * *

 

REPUBLIC OF ARMENIA/REPUBLIQUE D'ARMENIE

Ms Noune ZASTOUKHOVA, Second Secretary of the Ministry of Foreign Affairs, Department of International Organizations, Human Rights Desk, YEREVAN

REPUBLIC OF AZERBAIJAN

Mr Emin EYOUBOV, Third Secretary, Treaty and Legal Department, Ministry of Foreign Affairs, BAKU

REPUBLIC OF BELARUS/REPUBLIQUE DE BELARUS

Mr Stanislav OGURTSOV, Head, Department of Humanitarian Cooperation and Human Rights, Ministry of Foreign Affairs, MINSK

FEDERATION OF BOSNIA AND HERZEGOVINA/FEDERATION DE BOSNIE-HERZEGOVINE

/

Office for Democratic Institutions and Human Rights (ODIHR-OSCE)/Bureau des institutions démocratiques et des droits de l'homme (BIDDH-OSCE)

Apologised/Excusé

Amnesty International

Mme Sylvie KLEINBERG, Représentante locale d'Amnesty International auprès du Conseil de l'Europe, STRASBOURG

International Commission of Jurists / Commission Internationale deJuristes

Ms Nathalie PROUVEZ, Legal Officer for Europe, CHATELAINE/GENEVE

International Federation of Human Rights / Fédération Internationale des Droits de l’Homme

Mme Catherine FRANCOIS, Assistante de coordination des programmes, PARIS

M. Pierre BOULAY , Représentant auprès de la Fédération Internationale des Droits de l'Homme, SCHILTIGHEIM

 

INVITED GUESTS\PERSONNALITES INVITEES

Mr Matti MIKKOLA, Professor of Labour Law, Department of Private Law, University of Helsinki, HELSINKI

 

* * *

Chair of the Committee of Experts for the improvement of procedures for the protection of human rights (DH-PR)/

Président du Comité d'experts pour l'amélioration des procédures de protection des droits de l'homme (DH-PR)

Mr Carl Henrik EHRENKRONA, High Court Judge, Vice-Chairman of Chamber, Svea Court of Appeal, Svea Court of Appeal, STOCKHOLM

Chair of the Group of Specialists on Access to Official Information/Présidente du Groupe de Spécialistes sur l’accès aux informations officielles (DH-S-AC)

Ms Helena JÄDERBLOM, Legal Adviser , Ministry of Justice, STOCKHOLM

 

SECRETARIAT

Directorate General of Human Rights - DG II / Direction Générale des Droits de l'Homme –

DG II, Council of Europe/Conseil de l'Europe, F-67075 STRASBOURG CEDEX

M. Pierre-Henri IMBERT, Director of Human Rights/Directeur des Droits de l'Homme

Mr Jeroen SCHOKKENBROEK, Head of the Human Rights Section/Chef de la Section Droits de l'Homme

M. Alfonso DE SALAS, Principal Administrator/Administrateur Principal, Secretary of the Committee/Secrétaire du Comité

Mr Philipp MITTELBERGER, Programme Adviser/Conseiller de Programme

Mrs Katherine ANDERSON-SCHOLL, Administrative Assistant/Assistante administrative

Mme Michèle COGNARD, Administrative Assistant of the CDDH/Assistante administrative du CDDH

 

* * *

 

Interpreters/interprètes

Mme Angela BREWER

Mme Danielle HEYSCH

Mme Shéhérazade HOYER-BARTHEL

Mme Marianne HUMMEL

Mr Philippe QUAINE

 

Appendix II

 

AGENDA

Items 1 and 2:Opening of the meeting, adoption of the agenda and order of business

Item 3: Developments in the international protection of human rights

I. General exchange of views

a. Information on the Charter of Fundamental Rights of the European Union

b. Information on the Stability Pact for South East Europe

II. Exchange of views with invited guests

a. Council of Europe Commissioner for Human Rights

b. Chairperson of the European Committee of Social Rights (EC-SR)

c. Guests to be invited to the next meeting

III. Monitoring exercise on member States’ compliance with commitments

c. "Monitoring" freedom of expression and information

b. "Monitoring" the functioning of the judicial system

IV. Other information

a. Follow-up concerning the draft Additional Protocol to the Convention on Human Rights and Biomedicine

b. Reservations made by member States to the ECHR

c. Information on ECRI and on the preparation of the Conference against racism

d. Information on the Declaration and the Programme of action on Education to Democratic Citizenship

Item 4: Organisation of the European Ministerial Conference (Rome, 3-4 November 2000) on the occasion of the 50th anniversary of the European Convention on Human Rights

a. Substantive issues

b. Organisational aspects

Item 5: Activities that may be conducted to mark the 50th anniversary of the ECHR (4 November 2000)

Item 6: State of work of the committees answerable to the CDDH

a. DH-DEV

b. DH-PR

c. DH-MIN

d. DH-S-CO

e. DH-S-AC

f. GT-DH-MAT

g. DH-S-DEM

Item 7: Draft opinions of the CDDH

a. Draft opinion on Recommendation 1402 (1999) of the Parliamentary Assembly on control of internal security services in Council of Europe member States

b. Draft opinion on the draft Recommendation of the CJ-EJ (DCCJ) on the freedom of exercise of the profession of lawyer

Item 8: Representatives of the CDDH in other committees and meetings

Item 9: Elections

Item 10: Dates of the next meetings

Item 11: Questions which could be placed on the Agenda of the next meeting

Item 12: Other business

Information on public access to Council of Europe documents issued with a security classification

Recommendation 1380 (1998) of the Parliamentary Assembly on human rights of conscripts

 

Appendix III

 

FINAL ACTIVITY REPORT

OF THE CDDH TO THE COMMITTEE OF MINISTERS

(adopted by the CDDH at its 47th meeting (30 November – 3 December 1999))

 

Drafting of an additional protocol to the European Convention on Human Rights (ECHR) broadening, in a general fashion, the field of application of Article 14 (non-discrimination)

 

1. At the 622nd meeting of the Ministers’ Deputies (10-11 March 1998 ; decision No. CM/2/110398), the Committee of Ministers adopted ad hoc terms of reference for the Steering Committee for Human Rights (CDDH) to draft an additional protocol to the ECHR broadening, in a general fashion, the field of application of Article 14, which would contain a non-exhaustive list of discrimination grounds and to clarify, through the preparation of a draft explanatory report, the precise nature and scope of the undertakings of the Parties to such a protocol. The completion date for this activity was set at 31 December 1999.

2. The terms of reference further specify that the drafting of the additional protocol should be based on the Final Activity Report which the CDDH had submitted to the Committee of Ministers under earlier terms of reference concerning standard-setting solutions regarding equality between women and men/a legal instrument against racism and intolerance (document CDDH (97) 41 Addendum of 28 October 1997). In that Report, the CDDH had reached the conclusion that an additional protocol to the ECHR was advisable and feasible, both as a standard-setting solution regarding equality between women and men and as a legal instrument against racism and intolerance, and had requested fresh terms of reference to draw up such a protocol.

3. The DH-DEV considered this matter at its 23rd (27-30 April 1998), 24th (24-27 November 1998), 25th (18-21 May 1999) and 26th (15-18 November 1999) meetings. In carrying out this work, it regularly reported to, and received guidance from, the CDDH and its Bureau. The CDDH examined the progress of work at its 44th (8-12 June 1998), 45th (3-6 November 1998), 46th (22-25 June 1999) and 47th (30 November-3 December 1999) meetings.

4. In the course of this activity, the CDDH, inter alia :

- decided that the DH-DEV should draw up a single instrument which would broaden the field of application of Article 14 of the ECHR and which would cover the subject of racism and intolerance as well as that of equality between women and men ;

- examined a text which the DH-DEV had produced as a possible compromise between two variants for the main operative provision of the draft protocol which it had discussed and decided to retain, on the basis of that compromise, a single text of the draft protocol and the draft explanatory report thereto ;

- transmitted, at its 46th meeting in June 1999, this single text to the Committee of Ministers with a view to requesting the opinions of the European Court of Human Rights and of the Parliamentary Assembly and decided, at the same meeting, to seek the opinions from the CDCJ, the CDPC, the CDEG and the ECRI (the Committee of Ministers subsequently decided, at the 677bis’ meeting of the Ministers Deputies on 27-28 July 1999, to transmit the draft protocol to the Court and the Parliamentary Assembly for opinion) ;

- took note of the draft Final Activity Report which the DH-DEV had prepared at its 26th meeting after consideration of the opinions received and which that Committee had forwarded to it for adoption;

5. At its 47th meeting (30 November - 3 December 1999), the CDDH noted that it had not yet received the opinions of the European Court of Human Rights and of the Parliamentary Assembly on the draft protocol. It agreed that it would be inappropriate at this meeting to adopt the final activity report as proposed by the DH-DEV in the absence of the said opinions. It has been informed that the Court's opinion is expected by mid-December 1999, whereas the Parliamentary Assembly's opinion is expected to be adopted at the next session of the Assembly (24-28 January 2000).

6. The CDDH wishes to inform the Committee of Ministers of its willingness to hold an extraordinary meeting of the CDDH in February or March 2000. It proposes that this meeting could be held in lieu of DH-DEV's spring meeting next year; so that the extraordinary meeting would not place an additional burden on the budget of the Council of Europe.

7. The CDDH therefore requests the Committee of Ministers:

- to authorise a 2-day extraordinary meeting of the CDDH in February or March 2000 with a view to: (i) examining the opinions which will have been submitted by the Court and the Parliamentary Assembly on the subject, (ii) examining the draft Protocol and draft Explanatory Memorandum with a view to their adoption (iii) transmitting these draft texts to the Committee of Ministers for final adoption;

- to extend the deadline for the execution of the ad hoc terms of reference for this activity until 31 March 2000;

- to note that the DH-DEV would hold only one meeting in 2000, in the autumn of that year.

8. The Turkish expert requested that the following statement, concerning item 6.a., be included in the final activity report to be submitted to the Committee of Ministers:

"The Turkish authorities consider that draft Protocol No.12 to the ECHR is not an appropriate instrument, given the initial purpose of the exercise, which was to combat racism and establish equality between women and men, since the text of the draft covers only one aspect, that of discrimination."

 

Appendix IV

 

Organisation of the European Ministerial Conference

on Human Rights (Rome, 3-4 November 2000)

on the occasion of the 50th anniversary of the

European Convention of Human Rights

Preliminary Note: This appendix contains preparatory elements for the Conference after discussion at the 47th meeting of the CDDH (30 November – 3 December 1999)

 

Introduction

In November 1999, the Italian authorities, represented by Ambassador Claudio Moreno, confirmed their invitation to host in Rome the next European Ministerial Conference on Human Rights (3-4 November 2000) to celebrate the 50th anniversary of the ECHR. During its 47th meeting (30 November – 3 December) the CDDH took the following decisions, both on the substantive issues and the organisational aspects of the Conference:

I. Substantive Issues

The CDDH feels that the Ministerial Conference should, in particular, allow the Council of Europe to reaffirm its central role in the protection and promotion of human rights in Europe. It will be particularly necessary to ensure that the texts that will be proposed to Ministers for adoption have the required political impact, and are not limited to a list of past or present activities.

One general theme and two sub-themes are proposed for the Conference.

Theme: "The European Convention on Human Rights at 50 : What future for the Protection of Human Rights in Europe ? "

Sub-Theme 1 : "Institutional and Functional Arrangements for the Protection of Human Rights at European Level"

Sub-Theme 2 : "Respect for Human Rights as a Key Factor for Democratic Stability and Cohesion in Europe : Current Issues"

Contents of the Theme

The general theme suggested is sufficiently broad to meet the wish expressed by the CDDH in June 1999 that the Ministerial Conference should, by means of the political/legal texts adopted, give the Council of Europe political impetus and guidelines for its work across the entire human rights sector (ECHR, European Social Charter, CPT, Framework Convention for the Protection of National Minorities, Human Rights Commissioner, monitoring procedures, intergovernmental work, co-operation and awareness activities, etc.).

This general theme will address the following issues :

- The progress achieved in the protection of human rights during the ECHR’s fifty years of existence

- the role of the Council of Europe for the re-establishment of peace and reconciliation in Europe

- the present and future role of the Council of Europe in the field of human rights: complementarity and synergy with other international organisations

- the link between the protection of human rights and humanitarian law.

The various ideas covered by the theme will be reflected in the draft Declaration to be submitted to the Conference.

Contents of sub-themes 1 and 2

The suggested Subthemes 1 and 2 broadly correspond to the first ideas expressed by the CDDH in June 1999, according to which the Conference should address, on the one hand, political and legal procedures for human rights protection in the framework of the Council of Europe and, on the other hand, substantive questions of protection and promotion of human rights.

Under sub-theme 1, [« Institutional and Functional Arrangements for the Protection of Human Rights at European Level »] three items of an institutional and functional nature could be addressed, for example :

a. Reinforcement of the Convention system. On this subject, the following aspects could be dealt with :

- The national level of protection of human rights:

- Improvement of the level of application of the ECHR in member states;

- Questions of training to the ECHR system

- The verification procedure for draft laws in order to ensure their coherence with the ECHR

- The proper balance to be found between the efficiency of justice and the guarantees of individual rights

- The problem of the efficiency of the European Court of Human Rights, in view of its excessive workload and the fact that many cases referred to it are of a general minor importance (reference to the Postdam Conference, 1997).

- The functioning of the system of individual applications in the framework of the ECHR;

- The execution of judgments of the Court.

b. The ability of the human rights and monitoring mechanisms to respond in an effective, coherent and rapid manner to serious or large-scale human rights violations including in situations of tension and conflict.

This topic would also allow for discussion on whether a wider range of available measures for cases of non-compliance with Council of Europe human rights standards should be developed and how best to use those measures already existing.

c. How to improve the protection of social and economic rights in the framework of existing mechanisms ?

Under sub-theme 2 (« Respect for Human Rights as a Key Factor for Democratic Stability and Cohesion in Europe : Current Issues »), several substantive items could be addressed, such as :

a. [Threats to the principles of equality and non-discrimination .

This topic could cover, in particular, the issue of human rights of persons belonging to minorities, including Roma. (N.B. see the results of the preparatory European Conference in October 2000 for the World Conference on Racism).]

b. Respect for human rights, good governance and civil society.

This topic could cover, for example, transparency of the administration, human rights and the police, human rights education and awareness as an investment in Europe’s future, the role of the media.

c. Abolition of the death penalty in war time.

II. Organisational Aspects

Working Methods

1. Two member States should each take responsibility for drafting a report on one or other of the sub-themes. These reports, the content of which would depend entirely on the rapporteur country, should not necessarily be confined to a description of the national situation, but should rather contain a general analysis of the issue, from a national perspective. The following two member states agreed in principle to take responsibility for drafting one or other report:

Sub-theme I: …

Sub-theme II: …

2. Any other member State which so wishes may submit documents, which will be laid out in the conference room, and in which they may tackle any aspect of the sub-themes.

3. The Drafting Group will embark without delay on the preparation of the draft texts for submission to the Conference. In due course it would take account of the reports prepared under the responsibility of the rapporteur States and any other documents submitted by the member States for the Conference.

Material issues

The organisational arrangements for a NGO Forum to prepare the Conference (Rome, February 2000, see paragraph 23 below) and for the Conference itself, including the Commemorative Ceremony for the 50th anniversary of the ECHR, are a matter for the Italian authorities in co-operation with the CDDH Secretariat and the relevant sectors of the Council of Europe. The coordinator for organisational issues appointed by the Italian authorities is Mr Giulio Cesare Vinci GIGLIUCCI, Plenipotentiary Minister in the Italian Ministry of Foreign Affairs. A list of material issues appears at the end of this Appendix.

Calendar for the preparation of the Conference 

19 November 1999: Meeting of the Bureau of the CDDH – Preliminary discussion on the substance of the Conference and on possible rapporteur countries.

30 November –

3 December 1999: 47th meeting of the CDDH. Adoption of the theme and sub-themes. Designation of participants. Designation of rapporteur countries for one or several specific subjects among those mentioned in the framework of sub-themes 1 or 2. Each of these countries should prepare a written report [which will be presented orally by their respective ministers during the Conference]. The Drafting Group CDDH-GR could meet alongside the meeting of the CDDH.

21-23 February 2000 : Meeting of the Drafting Group CDDH-GR (Rome). – Drafting of preliminary draft political texts to submit to the Conference.  Finalise instructions for those rapporteur countries preparing reports.

21-22 February 2000 : NGO Forum (Rome). - Possible adoption of a text which will be forwarded to the CDDH / CDDH-GR. See paragraph 17 below.

[9-10 March 2000] [Extraordinary meeting of the CDDH. The Drafting Group CDDH-GR could meet alongside the CDDH.]

15 May 2000 : Deadline for national reports to be submitted to the Secretariat, if the CDDH wishes to take note of them at its meeting on 20-23 June 2000

[26 May 2000] Bureau of the CDDH (Paris).

20-23 June 2000 : 48th meeting of the CDDH which will take note of the national reports. The Drafting Group CDDH-GR could meet alongside the CDDH. It could take note of the national reports.

4-5 September 2000: Drafting Group CDDH-GR.

22 September 2000: Bureau of the CDDH (Paris).

3-6 October 2000: 49th meeting of the CDDH. Acknowledgement of the national reports [and other documents for the Conference (documents submitted by the NGO Forum, etc.)]. Adoption of the draft political texts which will be submitted to the Conference, including a text relating to topical political issues of concern at the time of the Conference.

2 November 2000: Special meeting of the CDDH [3.00 – 7.00 p.m. ] in Rome, at La Farnesina (head office of the Ministry of Foreign Affairs). [For practical reasons (avoiding double cost of installing equipment: photocopiers, interpretation cabins, etc.) this meeting has to be held in the same place as the Conference will be held the next day]. Finalisation of the definitive text on current political issues which will be submitted to the Conference.

3-4 November 2000 : Ministerial Conference.

Friday, 3 November 2000 [10.00 a.m. – 6.00 p.m.]: First day of the Conference , Rome , La Farnesina (head office of the Ministry of Foreign Affairs).

- morning [10.00 a.m.-1.00 p.m.]: Sub-theme 1

- afternoon [3.00 p.m.- 6.00 p.m.]: Sub-theme 2

Saturday, 4 November 2000 morning [10.00 a.m.-1.00 p.m.] Second day of the Conference, Rome, La Farnesina (head office of the Ministry of Foreign Affairs):

- Adoption of the political texts (Resolutions and Declaration) on each of the sub-themes, and on a current political issue. Closing of the Conference.

- Transfer to Palais Barberini where the ECHR was opened for signature on 4 November 1950

* * *

- Commemorative ceremony for the 50th anniversary of the ECHR.

- Rome, Palais Barberini (at about 12.00 p.m.)

- Opening ceremony for the signature/ratification of legal instruments.

- Rome, Palais Barberini (at about 12.45 p.m.)

Participants

1. The CDDH will decide on the various sectors which should be invited to the Ministerial Conference and those which should be invited solely to the Commemorative Ceremony for the 50th anniversary of the ECHR. In principle, the following division has been retained :

2. Participants for the actual Ministerial Conference

- Representatives of the governments of the 41 member States [and those States having observer status] at a ministerial level: Ministers of Foreign Affairs and/or Justice, etc.

- Representatives of the European Court of Human Rights: number to be determined.

- Council of Europe Human Rights Commissioner.

- Chairpersons of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (CPT), the Social Charter Committees (intergovernmental and independent experts), the Advisory Committee of the Framework Convention for the Protection of National Minorities, the European Commission against Racism and Intolerance (ECRI).

- Representatives of the Parliamentary Assembly. Number to be determined.

- Representatives of the organs of the European Union and the OSCE. Number to be determined.

- Representatives of the three NGOs holding observer status with the CDDH.

3. Participants for the Commemorative Ceremony for the 50th anniversary of the ECHR

Before deciding on the various sectors to be invited to the Ceremony, exact details on the capacity of the venue of the Ceremony will have to be obtained. If it is the Palais Barberini, where the ECHR was signed in 1950, the guest list will have to be relatively limited. Subject to the above comments, the following sectors will be invited:

All participants at the Ministerial Conference

All the Judges of the European Court of Human Rights

All members of the Sub-Committee on Human Rights of the Parliamentary Assembly

United Nations High Commissioner for Human Rights.

Chairpersons of international organisations which have been set up through a treaty on human rights

Presidents of pertinent international courts

The NGO representatives who will have taken part in the Forum in February 2000.

4. At a later date, the Secretariat will provide an estimate of the number of persons to be invited from each of these sectors.

Media

1. The Conference, as such, should be held without journalists present. The Ceremony for the 50th Anniversary should be open to the media, as long as the capacity of the venue chosen for the Ceremony is wide enough. Suggestions on this subject will be made by the competent services of the Council of Europe, together with the authorities of the host country. However, it seems that, apart from the photographers, the minimum to be envisaged, would be the setting up on the premises of a radio and television broadcaster from a public network (for example, the RAI) which could transmit the signal to other broadcasters interested by the event.

2. A press conference should take place (details to be confirmed), for example with the Chair of the Conference / of the Ceremony and / or the Secretary General of the Council of Europe.

* * *

Drafting Group CDDH-GR

It is recalled that the Drafting Group (CDDH-GR) was set up at the 46th meeting (22 – 25 June 1999, CDDH (99) 10, paragraph 9), to prepare the preliminary draft texts to be submitted to the Conference. The Group is made up of eleven members: Austria, Belgium, Finland, France, Italy (Chair), Netherlands, Poland, Romania, Sweden, Switzerland, and the United Kingdom. A representative from the Holy See will also take part, at his authorities’ expense. It is understood that other experts may take part at their authorities' expense, but that the Group should not be too large as this would make it difficult to draft effectively.

* * *

NGO Forum (Rome, 21-22 February 2000)

1. Aim of the Forum : Possible adoption of a text which will be forwarded to the CDDH / CDDH-GR.

2. Venue and date : Rome, Monday, 21 and Tuesday 22, February 2000.

3. The Drafting Group CDDH-GR will be in Rome from Monday, 21 February to Wednesday, 23 February 2000, which will allow it to participate in the NGO meeting.

4. Organisations to be invited : the 3 NGOs holding observer status with the CDDH and other interested NGOs, a list of which will be drawn up by the Bureau of the CDDH through a written procedure (maximum number of NGOs to be invited having a financial contribution from the Council of Europe : 20).

5. The details of financial arrangements by the Council of Europe for NGO representatives, as well as the practical arrangements for the Forum itself (order of business, speaking time, etc.) will be included in the letter of invitation which will be sent to the NGOs concerned. The Secretariat, in co-operation with the Italian authorities, will prepare the invitation letter, which will be sent by the Italian authorities by mid-December at the latest.

6. The letter of invitation should be sent out as soon as possible, along with the preliminary draft programme of the Conference. The letter should state that the purpose of the Forum was to allow these NGOs to make suggestions that would contribute to work on texts concerning subjects selected by the CDDH, without opening up debates on other subjects. The NGOs would be invited not only to attend the Forum but also, if they so wished, to submit written observations for examination by the CDDH-GR in due course.

* * *

Special meeting of the CDDH (Rome, 2 November 2000)

1. In accordance with the practice already established for ministerial conferences organised by the Council of Europe, the Organisation will not bear travel or subsistence expenses for experts, but only the subsistence expenses for the special meeting the day before the Conference.

2. In other words, experts of the CDDH will come to Rome at the expense of their authorities. They will receive a sum of 996 FF, corresponding to the per diem for the day of 2 November 2000 (special meeting of the CDDH). These details will be confirmed in the invitation letter that they will receive.

Practical arrangements concerning

the organisation of the Ministerial Conference

This list is drawn up from standard list which has been used in the past for the organisation of Ministerial Conferences by the Council of Europe. Further details will gradually need to be given, after consultation with the authorities of the host country, as preparations for the Ministerial Conference in Rome get underway.

Meeting Rooms

1. One large meeting room - capacity ± 150-200 persons equipped with round table capable of seating ± 45 persons. Equipment for simultaneous interpretation in at least 5 languages and sufficient number of headphones, microphones and loudspeakers.

2. One or two small rooms for informal or working group meetings, capacity ± 20 seats.

3. Press room equipped with desks, typewriters, telephone booths, fax and telex facilities and large notice board.

4. Lounges or closed off areas for private conversations.

Offices

5. At least eight offices will be necessary:

i. Office for the Secretary General.

ii. Office for the Chairman.

iii. Two large offices for the secretaries.

iv. Office for A grade staff (administrators).

v. Meeting room/large office for assembling documents, etc.

vi. Office or closed off area in Press Room for Press Officer and secretary.

vii. Office for the interpreters/translators.

Cafeteria

6. Cafeteria or restaurant facilities on the spot.

Registration areas

7. Large area for registration, equipped with large tables and telephones near the entrance. This should not be in the same vicinity as the cloakroom because of bottlenecks. Large boards behind registration tables for pinning-up badges of delegations.

8. Separate area for general information for delegations (about the town, the Conference, air schedules, etc).

Telephones / Fax / Internet

9. Telephone connected to international network in the Secretary General's and Chairman's offices.

10. Idem offices of "A" grade staff and Press Officer.

11. Other offices equipped with internal lines.

12. Idem main meeting room and other meeting rooms.

13. Fax machine installed in the secretaries' office together with access to Internet.

14. Separate fax and telephone (on a paying basis) facilities and access to Internet in Press Room.

15. Preferably, reserved area for members of Delegations, equipped with telephones (on a paying basis), fax and access to internet, or, free access to facilities in the Press Room.

Photocopying machines

16. Access by Secretariat (very near their offices) to a minimum of two high performing photocopying machines with automatic sorter, automatic stapling and a large stock of paper.

17. Preferably a person detached by host delegation to operate and repair machines.

18. One smaller photocopying machine for Press Officer.

Computing equipment

19. Either installation of Secretariat offices with PCs (IBM PC compatible with 3½ inch Disk Drives) English and French keyboards, and postscript printers using the same system as the Council of Europe (Word 97) or provision of laser printers compatible with Council of Europe's portables. Similar installation for the secretary of the Press Officer.

20. Installation of a minimum number of electric typewriters in English and French (in case of computer crash).

Miscellaneous equipment

21. Electric staplers, pencils, rubbers, glue, paper and other basic office equipment.

Staff placed at disposal of meeting by host authorities

22. Team for operation and maintenance of interpretation facilities.

23. Operator/technician for photocopying machines. Person to look after the fax in Press Room.

24. Technician for computers and printers.

25. Electrician.

26. 4 or 5 hostesses.

Flags

27. Flags of participating States (the Council of Europe supplies its own).

Medical Service

28. First aid equipment on the premises. Host authorities make necessary arrangements in case of emergency.

Security

29 Arrangements are the responsibility of the host authorities. Badges may be supplied by host authorities or the Council of Europe, depending on agreement.

Vehicles

30. Car placed at the disposal of the Secretary General throughout stay.

 

Appendix V

Draft Recommendation and draft explanatory memorandum

concerning the re-examination or reopening of certain cases at domestic level

following judgments of the European Court of Human Rights footnote 2

(adopted by the CDDH at its 47th meeting (30 November – 3 December 1999))

 

Preamble

Noting that under Article 46 of the Convention on Human Rights and
Fundamental Freedoms ("the Convention") the Contracting Parties have accepted the obligation to abide by the final judgment of the European Court of Human Rights ("the Court") in any case to which they are parties and that the Committee of Ministers shall supervise its execution;

Bearing in mind that in certain circumstances the above-mentioned obligation may entail the adoption of measures, other than just satisfaction awarded by the Court in accordance with Article 41 of the Convention and/or general measures, which ensure that the injured party is put, as far as possible, in the same situation as he or she enjoyed prior to the violation of the Convention (restitutio in integrum);

Noting that it is for the competent authorities of the respondent State to decide what measures are most appropriate to achieve restitutio in integrum, taking into account the means available under the national legal system;

Bearing in mind, however, that the practice of the Committee of Ministers in supervising the execution of the Court's judgments shows that in exceptional circumstances the re-examination of a case or a reopening of proceedings has proved the most efficient, if not the only, means of achieving restitutio in integrum;

Operative part

1. In the light of these considerations the Contracting Parties are invited to ensure that there exist at national level adequate possibilities to achieve, as far as possible, restitutio in integrum;

2. The Contracting Parties are, in particular, encouraged to examine their national legal systems with a view to ensuring that there exist adequate possibilities of re-examination of the case, including reopening of proceedings, in instances where the Court has found a violation of the Convention, especially where:

(i) the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue, which are not adequately remedied by the just satisfaction and cannot be rectified except by re-examination or reopening, and

(ii) the judgment of the Court leads to the conclusion that

(a) the impugned domestic decision is on the merits contrary to the Convention, or

(b) the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of.

 

DRAFT EXPLANATORY MEMORANDUM

 

Introduction

 

1. The Contracting Parties to the Convention enjoy a discretion, subject to the supervision of the Committee of Ministers, as to how they comply with the obligation in Article 46 of the Convention "to abide by the final judgment of the Court in any case to which they are parties."

2. The Court has held: "a judgment in which the Court finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach" (see inter alia the Court’s judgment in the Papamichalopoulos case against Greece of 31 October 1995, paragraph 34, Series A 330-B). The Court was here expressing the well-known international law principle of restitutio in integrum, which has also frequently been applied by the Committee of Ministers in its resolutions. In this context, the need to improve the possibilities under national legal systems to ensure restitutio in integrum for the injured party has become increasingly apparent.

3. Although the Convention contains no provision imposing an obligation on Contracting Parties to provide in their national law for the re-examination or reopening of proceedings, the existence of such possibilities have, in special circumstances, proven to be important, and indeed in some cases the only, means to achieve restitutio in integrum. An increasing number of States have adopted special legislation providing for the possibility of such re-examination or reopening. In other States this possibility has been developed by the courts and national authorities under existing law.

4. The present recommendation is a consequence of these developments. It invites all Contracting Parties to ensure that their legal systems contain the necessary possibilities to achieve, as far as possible, restitutio in integrum, and, in particular, provide adequate possibilities for re-examining cases, including reopening proceedings.

5. As regards the terms, the recommendation uses "re-examination" as the generic term. The term "reopening of proceedings" denotes the reopening of court proceedings, as a specific means of re-examination. Violations of the Convention may be remedied by different measures ranging from administrative re-examination of a case (e.g. granting a residence permit previously refused) to the full reopening of judicial proceedings (e.g. in cases of criminal convictions).

6. The recommendation applies primarily to judicial proceedings where existing law may pose the greatest obstacles to new proceedings. The recommendation is, however, also applicable to administrative or other measures or proceedings, although such legal obstacles will usually be less important in these areas.

7. There follow, first, specific comments relating to the two operative paragraphs of the recommendation and, secondly, more general comments on questions not explicitly dealt with in the recommendation.

Comments on the operative provisions

8. Paragraph 1 sets out the basic principle behind the recommendation that all victims of violations of the Convention should be entitled, as far as possible, to an effective restitutio in integrum. The Contracting Parties should, accordingly, review their legal systems with a view to ensuring that the necessary possibilities exist.

9. Paragraph 2 encourages States which have not already done so, to provide for the possibility of re-examining cases, including reopening of domestic proceedings, in order to give full effect to the judgments of the Court. The paragraph also sets out those circumstances in which re-examination or reopening is of special importance, in some instances perhaps the only means, to achieve restitutio in integrum.

10. The practice of the Convention organs has demonstrated that it is primarily in the field of criminal law that the re-examination of a case, including the reopening of proceedings, is of the greatest importance. The recommendation is, however, not limited to criminal law, but covers any category of cases, in particular those satisfying the criteria enumerated in sub-paragraphs (i) and (ii). The purpose of these additional criteria is to identify those exceptional situations in which the objectives of securing the rights of the individual and the effective implementation of the Court’s judgments prevail over the principles underlying the doctrine of res judicata, in particular that of legal certainty, notwithstanding the undoubted importance of these principles.

Sub-paragraph (i) is intended to cover the situation in which the injured party continues to suffer very serious negative consequences, not capable of being remedied by just satisfaction, because of the outcome of domestic proceedings. It applies in particular to persons who have been sentenced to lengthy prison sentences and who are still in prison when the Convention organs examine the "case". It applies, however, also in other areas, for example, when a person is unjustifiably denied certain civil or political rights (in particular in case of loss of, or non-recognition of legal capacity or personality, bankruptcy declarations or prohibitions of political activity), if a person is expelled in violation of his or her right to family life or if a child has been unjustifiedly forbidden contacts with his or her parents. It is understood that there must exist a direct causal link between the violation found and the continuing suffering of the injured party.

12. Sub-paragraph (ii) is intended to indicate, in the cases where the above-mentioned conditions are met, the kind of violations in which re-examination of the case or reopening of the proceedings will be of particular importance. Examples of situations aimed at under item (a) are criminal convictions violating Article 10 because the statements characterised as criminal by the national authorities constitute legitimate exercise of the injured party's freedom of expression or violating Article 9 because the behaviour characterised as criminal is a legitimate exercise of freedom of religion. Examples of situations aimed at under item (b) are where the injured party did not have the time and facilities to prepare his or her defence in criminal proceedings, where the conviction was based on statements extracted under torture or on material which the injured party had no possibility of verifying, or where in civil proceedings the parties were not treated with due respect for the principle of equality of arms. Any such shortcomings must, as appears from the text of the recommendation itself, be of such a gravity that serious doubt is cast on the outcome of the domestic proceedings.

Other considerations

13. The recommendation does not deal with the problem of who ought to be empowered to ask for reopening or re-examination. Considering that the basic aim of the recommendation is to ensure an adequate protection of the victims of certain grave violations of the Convention found by the Court, the logic of the system implies that the individuals concerned should have the right to submit the necessary requests to the competent court or other domestic organ. Considering the different traditions of the Contracting Parties, no provision to this effect has, however, been included in the recommendation.

14. The recommendation does not address the special problem of "mass cases", i.e. cases in which a certain structural deficiency leads to a great number of violations of the Convention. In such cases it is in principle best left to the State concerned to decide whether or not reopening or re-examination are realistic solutions or, whether other measures are appropriate.

15. When drafting the recommendation it was recognised that reopening or re-examination could pose problems for third parties, in particular when these have acquired rights in good faith. This problem exists, however, already in the application of the ordinary domestic rules for re-examination of cases or reopening of the proceedings. The solutions applied in these cases ought to be applicable, at least mutatis mutandis, also to cases where re-examination or reopening was ordered in order to give effect to judgments of the Court.

In cases of re-examination or reopening, in which the Court has awarded some just satisfaction, the question of whether, and if so, how it should be taken into account will be within the discretion to the competent domestic courts or authorities taking into account the specific circumstances of each case.

 

* * *

Appendix VI

Draft Recommendation and Draft Explanatory Memorandum

on the Right to the Satisfaction of Basic Material Needs

of Persons in Situations of Extreme Hardship

(adopted by the CDDH at its 47th meeting (30 November – 3 December 1999))

 

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

Considering that the aim of the Council of Europe is the achievement of greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage ;

Bearing in mind the European Convention for the Protection of Human Rights and Fundamental Freedoms ;

Concerned by the individual situations of extreme hardship which exist, sometimes on a very large scale, in all the member States ;

Aware that the satisfaction of basic human material needs (as a minimum: food, clothing, shelter and basic medical care) is a requirement intrinsic to the dignity of every human being and constitutes the condition for the existence of all human beings and their well-being ;

Further aware that the satisfaction of these needs corresponds to a duty of society in terms of humanity;

Further considering that the recognition of an individual, universal and enforceable right, for persons in situations of extreme hardship, to the satisfaction of those needs is a condition for the exercise of other fundamental rights and an indispensable element in a democratic state based on the rule of law;

Referring to the conclusions of the Conference on Human Dignity and Social Exclusion (Helsinki, 18-20 May 1998), to Resolution 1999/26 of the United Nations’ Commission on Human Rights on human rights and extreme poverty, to Recommendation 1196 (1992) of the Parliamentary Assembly of the Council of Europe on severe poverty and social exclusion: towards guaranteed minimum levels of resources, as well as to the Committee of Ministers' Recommendation No R (93) 1 to member States on effective access to the law and to justice for the very poor ;

Noting that certain member States already recognise, in their internal law and practice, the existence of an individual, universal and enforceable right to the satisfaction of basic human material needs;

Considering that the law and practice of all member States should recognise such a right ;

RECOMMENDS the governments of the member States to put into practice the principles in the Annex to this Recommendation in order to recognise, at national level, an individual universal and enforceable right to the satisfaction of basic material needs (as a minimum : food, clothing, shelter and basic medical care) for persons in situations of extreme hardship.

 

Appendix

Principle 1

Member States should recognise, in their law and practice, a right to the satisfaction of basic material needs of any person in a situation of extreme hardship.

Principle 2

The right to the satisfaction of basic human material needs should contain as a minimum the right to food, clothing, shelter and basic medical care.

Principle 3

The right to the satisfaction of basic human material needs should be enforceable, every person in a situation of extreme hardship being able to invoke it directly before the authorities and, if need be, before the courts.

Principle 4

The exercise of this right should be open to all citizens and foreigners, whatever the latters’ position under national rules on the status of foreigners, and in the manner determined by national authorities.

Principle 5

The member States should ensure that the information available on the existence of this right is sufficient.

 

DRAFT EXPLANATORY MEMORANDUM

 

I. In general

Persons in a situation of extreme hardship

1. In all the member States there are regrettably individual situations of extreme hardship, which, in certain cases, can even lead to death; these situations call for immediate action by society, for reasons both of humanity and justice, considering the dignity which is intrinsic to every human being.

Framework provided by International Law

2. Apart from the political texts mentioned in the Preamble of this Recommendation, it is worth referring to Articles 2 and 3 of the European Convention on Human Rights (ECHR), concerning the right to life and the prohibition of, inter alia, inhuman and degrading treatment.

Framework provided by domestic law

The answers provided to a questionnaire elaborated by the CDDH in 1999 reflect the increasing awareness in several member States concerning the problem of extreme hardship :

- certain member States have already been moving towards the recognition (including at a constitutional level) of a fundamental right to minimum conditions of subsistence as a universal and enforceable right;

- other countries also are beginning to recognise such a right, while still discussing what conditions should be met for this right to be enforceable in their domestic law.

The aim of the Recommendation

4. The present Recommendation does not limit itself to encouraging member States to formally recognise a minimum right: it also recalls conditions which allow this right to be effective.

5. The right advocated in this Recommendation could be a corollary in particular of Articles 2 and 3 of the ECHR. It is not excluded that the case-law of the European Court on Human Rights will, sooner or later, confirm this. The aim of this Recommendation is, therefore, not to encroach on the interpretation which the Court could give to these articles, neither to draft rights which could find their place in the European Social Charter. Each of these two major legal instruments has its own dynamic.

6. Despite of the legal protection of the ECHR and the Social Charter, the Recommendation, for its part, highlights that it is not acceptable that human beings can die because of cold weather or hunger in member States, In this regard, there is a duty of society which involves responsibilities of the public authorities.

Historical background

7. Considering, in particular, the conclusions of the Conference on Human Dignity and Social Exclusion (Helsinki, 18-20 May 1998), the Steering Committee for Human Rights (CDDH) decided in June 1998 to set up a Working Group on the right to the satisfaction of basic material human needs (GT-DH-MAT). This Group met in September 1998 and June 1999.

* * *

II. Comments on the Principles

Principle 1

The present Recommendation underlines the obligation incumbent upon the public authorities to guarantee to all persons in extreme hardship under their jurisdiction and on their territory the satisfaction of basic material needs. This obligation must be seen not only as a duty in terms of humanity, but also as an inherent duty of a democratic state under the rule of law which respects human rights. It has to be recognised that there is a contradiction between the existence of situations of extreme hardship which can lead to death on the one hand and the duty to guarantee the full enjoyment of human rights to all human beings on the other.

Principle 2

9. Principle 2 deals with the minimum content of the right. It consists of the right to be given assistance in kind (food, warm clothing, shelter for the night, basic medical care), not an entitlement to sums of money or a minimum income. Clearly every state can and should consider introducing a minimum income to assist social integration but that is a further step that lies outside the scope of the Recommendation. The Recommendation confines itself to urgent on-the-spot help to the individual in extreme hardship.

10. In view of the structural (social, economic and cultural) and also, for instance,

climatic differences between member States, it was not necessary to give a uniform definition of concepts such as "extreme hardship", "clothing", "shelter", etc. The public authorities in each member State are best placed to determine the scope of these concepts in any given circumstances. If need be, the national courts could define such concepts case by case.

11. Except for the satisfaction of urgent needs like food, clothing and shelter, the question arises whether to include, in the right at stake, basic medical care. But where are the limits of this term ? Does this mean only urgent care, « first aid » or do subsequent medical interventions also have to be included ? Where are the limits ? The Recommendation confines itself to advocating that the right to the satisfaction of basic human material needs include basic medical care. The recipient may well need subsequent medical treatment such as non-urgent surgery; but the legal basis for meeting that need will not be found in the right advocated in the present recommendation.

The same reasoning applies for the satisfaction of other rights, certainly necessary to a life worthy of a human being, such as the right to appropriate shelter, to social security, to a minimum income or the elimination of illiteracy, but the non-satisfaction of which does not entail such serious consequences, at least not immediately.

Principle 3

So that the right to the satisfaction of basic human material needs can be invoked before the authorities and if need be, before the courts, it is necessary that this right be limited to the strict minimum as specified in Principle 2 above and that it includes, on a national level, a normative content sufficiently clear to take concrete form and be implemented in the framework of existing judicial methods and procedures.

The courts will be able, if need be, to define the scope of this right case by case. It is however important to ensure that this right is not distorted by disproportionate interpretations.

Principle 4

By its very nature the right to the satisfaction of basic human material needs applies to everyone in extreme hardship. Even though it is lawful for the national legal system to treat differently people who differ in status (nationals, resident foreigners, refugees, asylum seekers, temporary residents, illegal immigrants, stateless persons, and so on), the public authorities plainly have a duty to give urgent assistance to anyone whose hardship is life-endangering and not to refuse it or discriminate on the ground of, in particular, nationality. Principle 4 accordingly places a clear requirement on domestic law and practice to observe the universality of the right to the satisfaction of basic human material needs.

It is up to the national authorities to determine the manner in which this right can be exercised for each category of person having a different status (see previous paragraph). In addition, these authorities have a margin of appreciation at their disposal when deciding which authority (local, regional, etc.) has to intervene and ensure urgent aid. It is obvious that it is the result which matters (saving human lives) more than the means which are more or less appropriately applied. Even if it is clear that the nature of the aid which has to be applied is more easily identified at local level, that level being the closer to the person in a situation of extreme hardship, and that in numerous cases it will be up to the local authorities to organise this help, it is necessary that every member State has a global and coordinated approach of the problem in order to avoid unjustified differences of treatment.

Principle 5

It is not rare to find persons in a situation of extreme hardship who are at the same time socially excluded : persons living on the fringe of a society from whom they no longer expect anything and who no longer have any idea of their rights. In these cases, as in others (illegal immigrants in extreme hardship, etc.) it is necessary to inform such persons of their right to immediate assistance.

 

* * *

 

Appendix VII

Text of the CDDH concerning the

Declaration and Programme on Education for Democratic Citizenship,

based on the Rights and Responsibilities of Citizens,

adopted by the Committee of Ministers

Human rights framework of the

on 7 May 1999 in Budapest

(adopted by the CDDH at its 47th meeting (30 November – 3 December 1999))

 

1. Through adoption of the Declaration and Programme the member states of the Council of Europe have underlined the importance of education in democratic citizenship and human rights education. Education is one of the most effective ways of preventing negative attitudes towards others and of promoting a culture of peace among all groups in society.

2. On the basis of the Universal Declaration of Human Rights and of successive international instruments, it is the duty of states, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms. International guarantees are designed to protect the individual against the abuse of power and to help ensure a life of dignity for all. Responsibilities and duties of the individual may never become prerequisite for the enjoyment of human rights and fundamental freedoms.

3. Although citizens do not have the responsibility for human rights protection they have responsibilities towards the community and each other. In a democratic state most of these responsibilities are embedded in the legal structure of the state, but they may also be based on religious practice, customary values in the community, or on ethical conviction. Through education, awareness of the responsibility of each individual to respect the human rights and dignity of all persons can be raised.

4. As fundamental human rights are universal and inalienable and should be enjoyed by all people, codification of citizens responsibilities in relation to human rights should be avoided. The same applies to the regulation of individual responsibilities as a counter balance to individual rights, arguing that individuals might forfeit their rights for not having fulfilled their responsibilities. Where the Declaration and Programme are speaking of "citizens’ responsibilities", these responsibilities can never lead to the detriment of or restrict the enjoyment of the human rights and fundamental freedoms of the individual".

 

Appendix VIII

Opinion of the CDDH

concerning Recommendation 1402 (1999) of the Parliamentary Assembly

on control of internal security services

in Council of Europe member States

(adopted by the CDDH at its 47th meeting (30 November – 3 December 1999))

 

 

1. "The Steering Committee for Human Rights (CDDH) takes note of the concern expressed by the Parliamentary Assembly in the Recommendation. There are indeed risks, in terms of abuse of power and violations of human rights which may occur within internal security services in cases where these services are not in a regulated framework within the national legal system. The CDDH notes that there is already a substantial case-law of the European Court of Human Rights in this field.

The Parliamentary Assembly recommends the control of these services and in particular to safeguard individual rights. The CDDH feels that it is premature to aim towards a framework convention at this stage of the debate. The CDDH suggests it is preferable to consider drawing up a recommendation of the Committee of Ministers.

3. . The CDDH feels that any future drafting work should be entrusted mainly to the European Committee on Legal Co-operation (CDCJ) and the European Committee on Crime Problems (CDPC), or their sub-committees. The CDDH could possibly contribute, from the perspective of human rights which is its primary concern, to any future work on this topic."

* * *

Appendix IX

Opinion of the CDDH

concerning draft Recommendation n° R (9..)…

on the freedom of exercise of the profession of lawyer

(adopted by the CDDH at its 47th meeting (30 November – 3 December 1999))

 

1. "The Steering Committee for Human Rights (CDDH) welcomes the work being done within the European Committee on legal co-operation (CDCJ) with a view to promote the freedom of exercise of the profession of lawyer. The promotion of this freedom clearly contributes to the strengthening of the Rule of Law, in which lawyers take part, in particular in the role of defending individual freedoms. The free and independent exercise of the profession of lawyer, combined with respect for rules made by the profession itself, contributes in a large way to safeguarding human rights.

2. The CDDH considers that, overall, the approach and the wording of the draft Recommandation which is submitted to it for opinion, are excellent. The suggestions included in the appendix to this opinion are made from the perspective of human rights which is the primary concern of the CDDH."

 

* * *

Appendix

Principle I  (General principles on the freedom of exercise of the profession of lawyer)

Principle I.1 - The CDDH recalls that, amongst others, Articles 6, 8, 10, 11 and 14 of the European Convention on Human Rights (ECHR) are relevant in this context.

Principle 1.3 – The CDDH feels that the reference to freedom of movement of lawyers should be deleted, this right only being contained in an additional protocol and not in the ECHR itself. In addition, the explanatory memorandum does not refer to it either.

Principle 1.5 – The CDDH considers that the point concerning the limitation of access of lawyers to their clients in deprived of their liberty, mentioned in paragraph 27 of the explanatory memorandum should also appear in the body of the Recommendation.

Principle.I.6 - The CDDH recalls that the question of confidentiality between the lawyer and the client is linked to the right to a fair trial in general (Article, 6 paragraph 1, ECHR), to the facilities for the preparation of the defence (Article 6, paragraph 3, ECHR) and to the right to defence (Article 6, paragraph 3 c., ECHR), as well as to Article 8 of the ECHR (the right to respect for private and family life, home and correspondence). Any exceptions must be in line with paragraph 2 of Article 8 of the ECHR, the CDDH feels that the wording on exceptions in the text of Principle I.6 of the draft Recommendation is too restrictive. Reference should be made, in particular, to paragraph 2 of Article 8 of the ECHR and the case-law thereon.

Principle II (Legal education, training and entry into the legal profession):

Principle II.1 (non discrimination in training, entry into the legal profession and its exercise). The CDDH notes that the list foreseen in principle II.1 of the draft recommendation is exhaustive and differs from that of Article 14 ECHR. The CDDH would prefer a non-exhaustive list which would ensure coherence between the wording of the recommendation and that of the ECHR. In addition the CDDH considers it would be useful if the problems which arise when lawyers do not have sufficient knowledge of the language or languages used in the Courts could be mentioned in the explanatory memorandum.

Principles II.2 and II.3 The CDDH is entirely in favour of their contents. Human Rights training material aimed at jurists has been developed within the Council of Europe and it would be appropriate to widely use this at the different stages of the training of lawyers.

Principle IV (Access for all persons to lawyers) - The CDDH considers that this Principle is very appropriate as it is closely linked to the ongoing work monitoring the implementation by member States of Recommendation No. R (93) 1 of the Committee of Ministers to member States on effective access to the law and to justice of the very poor.

Principle IV.3 – The CDDH proposes to delete the reference to persons deprived of their liberty, these persons not necessarily being in an economically weak situation.

Principle V (Associations) - The CDDH recalls the link with Article 11, paragraph 1 of the ECHR, which states that everyone has the right to, inter alia, freedom of association with others.

 

* * *

Appendix X

 

Summary of the information to be sent in by experts to the Secretariat

before 29 February 2000

 

Reservations of member States to the ECHR – Experts are invited to send in to the Secretariat any observations on the information contained in document CDDH (99) 22 Revised. It is recalled that, by this exercise, the CDDH invites Contracting Parties to reconsider their position on some of their reservations and to restrict their scope, or lift those which have become obsolete or have never been applied in practice.

European Ministerial Conference on Human Rights – Experts are invited to send in to the Secretariat their country’s possible candidature to take on the task of drafting one or other of the reports on one or other of the sub-themes. The various candidatures will be examined by the CDDH at its extraordinary meeting on 9-10 March 2000, in order to select two countries which represent most aptly the geopolitical diversity of the Council of Europe (see paragraph 26 of the present report).

Implementation by member States of Recommendation No. R (93) 1 on effective access to the law and to justice for the very poor (questionnaire and replies received appear in document CDDH (99) 15). Those experts not yet having done so are invited to send in to the Secretariat, if possible, their replies (see paragraph 75 of the present report).

National situations in the field covered by the draft Recommendation on the right to the satisfaction of of basic material needs of persons in situations of extreme hardship (questionnaire and replies received appear in document CDDH (99) 26). Experts, not yet having done so, are invited to send in their replies, if possible, to the Secretariat.

Working methods of the CDDH – Those experts who wish to do so are invited to submit to the Secretariat their ideas and proposals on this subject, and in particular on any practical problems they encounter (very full agendas for meetings of the CDDH, practical difficulties and the problems that result (delays in the receipt of documents, etc.); methods for addressing certain topics (for example, by written contributions). In the light of the comments received, the Secretariat will prepare a document for a brainstorming session planned for the 48th meeting (20-23 June 2000, see paragraph 91 of the present report).

 

* * *


1.Translator's note: While the French version proposed by the Turkish expert differs slightly from the version in doc.DH-PR(99)18, Appendix III, the changes do not affect the English translation.

2. Considering that the quasi-judicial functions of the Committee of Ministers under the former Article 32 of the Convention will cease in the near future, no mention of the Committee of Ministers’ decisions is made. It is understood, however, that should certain cases still be under examination when the recommendation is adopted, the principles of this recommendation will also apply to such cases.



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