Ministers' Deputies
    Decisions

    CM/Del/Dec(2003)851 11 September 2003
    ———————————————

    851st meeting, 9 September 2003

    Decisions adopted

    ———————————————

    CONTENTS

    Page

    List of those present 6

    1. General questions

    1.1 Adoption of the Agenda 9

    1.2 Preparation of forthcoming meetings - (

    1.3 Communication from the Secretary General 10

    1.4 Report of the Bureau 10

    1.5 Election of the Secretary General - Procedure 10

    2. Political questions

    2.1 Current political questions - *
    . Statement by the Representative of Armenia

    2.2 Situation in Cyprus - *

    3. Parliamentary Assembly

    3.1 Communication by the Secretary General on the 4th Part of the 2003 Ordinary Session
    (Strasbourg, 25 September – 2 October 2003) and on other Assembly activities (cf item 1.1)

    3.2 Written question by members of the Parliamentary Assembly to the Chair of the
    Committee of Ministers

    a. Written question No. 427 by Mr Jurgens: “Property rights of displaced persons in Cyprus” 11

    4. Human Rights

    4.1 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or
    Punishment (CPT) – Election of members of the CPT in respect of Cyprus and Romania 11

    4.2 Supervision of execution of the judgments of the European Court of Human Rights –
    Responses in the event of slow or negligent execution (cf item 1.1)

    6. Social cohesion

    6.1 European Committee for Social Cohesion (CDCS) (cf item 1.1)

    a. Abridged report of the 10th meeting (Strasbourg, 20-22 May 2003)

    b. Draft Recommendation Rec(2003)… of the Committee of Ministers to member states
    enhancement of the access to social rights

    Page

    6.2 European Population Committee (CAHP) –
    Abridged report of the 5th meeting (Strasbourg, 4-6 June 2003) 11

    7. Education and Culture

    7.1 Eurimages – Evaluation of the Financial Regulations 12

    9. Sustainable development

    9.1 Sustainable spatial development of the Tisza/Tisa river basin – Draft initiative 12

    10. Legal questions

    10.1 European Committee on legal co-operation (CDCJ)

    a. Abridged report of the 78th meeting (Strasbourg, 20 to 23 May 2003) 12

    b. Draft Recommendation Rec(2003)… of the Committee of Ministers to member states
    on interoperability of information systems in the justice sector and its
    Explanatory Memorandum 13

    c. Draft Recommendation Rec(2003)… of the Committee of Ministers to member states
    on archiving electronic documents in the legal sector and its Explanatory Memorandum 13

    d. Draft Recommendation Rec(2003)… of the Committee of Ministers to member states on the execution of administrative and judicial decisions in the field of administrative law
    and its Explanatory Memorandum 14

    e. Draft Recommendation Rec(2003)… of the Committee of Ministers to member states
    on enforcement and its Explanatory Memorandum 14

    f. Draft Recommendation Rec(2003)… of the Committee of Ministers to member states
    containing a transmission form for legal aid abroad for use under the European Agreement
    on the transmission of applications for legal aid (ETS no. 092) and
    its Additional Protocol (ETS no. 179) 15

    10.2 Ad hoc Committee of experts on the legal aspects of territorial asylum, refugees and stateless persons (CAHAR)

    a. Abridged report of the 54th meeting (Strasbourg, 26-28 March 2003) 15

    b. Draft Recommendation Rec(2003)… of the Committee of Ministers to member states on the concept of “membership of a particular social group” (MPSG) in the context of the 1951
    Convention relating to the Status of Refugees and its Explanatory Memorandum 15

    c. Draft ad hoc terms of reference for the elaboration of guidelines of good conduct for expulsion procedures prepared by the Bureau of CAHAR in accordance with the finding of the 54th meeting of CAHAR

    10.3 Convention on the Transfer of Sentenced Persons (ETS No. 112) –
    Request by Bolivia to be invited to accede 16

    Page

    APPENDICES

    APPENDIX 1 851st Meeting of the Ministers' Deputies
    (item 1.1) (Strasbourg, 9 (10am) September 2003)
    Agenda 17

    APPENDIX 2 Resolution ResCPT(2003)6
    (Item 4.1) Election of members of the European Committee for the Prevention of Torture
    and Inhuman or Degrading Treatment or Punishment (CPT)

    in respect of Cyprus and Romania 20

    APPENDIX 3 Recommendation Rec(2003)14
    (Item 10.1b) of the Committee of Ministers to member states
    on the interoperability of information systems in the justice sector 21

    APPENDIX 4 Recommendation Rec(2003)15
    (Item 10.1c) of the Committee of Ministers to member states
    on archiving of electronic documents in the legal sector 26

    APPENDIX 5 Recommendation Rec(2003)16
    (Item 10.1d) of the Committee of Ministers to member states on the execution
    of administrative and judicial decisions in the field of administrative law 30

    APPENDIX 6 Recommendation Rec(2003)17
    (Item 10.1e) of the Committee of Ministers to member states
    on enforcement 33

    APPENDIX 7 Recommendation Rec(2003)18
    (Item 10.1f) of the Committee of Ministers to member states
    containing a transmission form for legal aid abroad for use under
    the European Agreement on the transmission of applications for
    legal aid (ETS No. 092) and its Additional Protocol (ETS No. 179) 37

    APPENDIX 8 Decision No. CM/859/09092003
    (Item 10.2c) Ad hoc terms of reference
    Ad hoc Committee of Experts on Legal Aspects of Territorial Asylum,
    Refugees and Stateless Persons (CAHAR) 42

    The 851st meeting of the Ministers' Deputies opened on 9 September 2003 at 10.00 a.m. under the chairmanship of Mr Alexei Tulbure, Deputy for the Minister for Foreign Affairs of Moldova.

    PRESENT

    ALBANIA
    Ms A. Kasa
    Ms I. Varfi

    ANDORRA
    Ms G. Cano

    ARMENIA
    Mr C. Ter Stepanian
    Ms S. Abgaryan
    Ms N. Nikolian

    AUSTRIA
    Mr A. Saupe
    Mr G. Locher

    AZERBAIJAN
    Mr E. Sultanov
    Mr F. Ismayilov
    Mr F. Guliyev

    BELGIUM
    Mr C. Ghislain
    Mr M. Peetermans

    BOSNIA AND HERZEGOVINA
    Mr I. Gaon

    BULGARIA
    Mr Y. Sterk
    Mr P. Baev
    Mr O. Champoev
    Ms S. Alexova-Borissova

    CROATIA
    Mr N. Madey
    Ms D. Plejić-Marković
    Ms J. Dervis
    Mr D. Sabljak

    CYPRUS
    Mr N. Emiliou
    Mr P. Kombos

    CZECH REPUBLIC
    Ms V. Štěpovă
    Mr M. Bouček
    Ms V. Stromsikova

    DENMARK
    Mr N.-J. Nehring

    ESTONIA
    Mr A. Straymann
    Ms E. Loman
    Mr E. Harremoes

    FINLAND
    Ms A.M. Nyroos
    Mr P. Voutilainen
    Ms A.E. Viljanen

    FRANCE
    Mr G. Chouraqui
    Mr J.F. Charpentier
    Mr P. Merlin
    Mr M. Adam

    GEORGIA
    Mr Z. Katchkatchishvili

    GERMANY
    Ms C. Gläser
    Ms E. Müller

    GREECE
    Mr A. Theodoracopoulos
    Mr C. Manessis
    Mr N. Tsamados

    HUNGARY
    Mr Z. Taubner
    Mr P. Göndör

    ICELAND
    Mr H. Bjarnason

    IRELAND
    Ms O. McBreen

    ITALY
    Mr N. Tassoni Estense di Castelvecchio

    LATVIA
    Mr G. Andrejevs
    Mr J. Mazeiks

    LIECHTENSTEIN
    -

    LITHUANIA
    Mr D. Arbačiauskas
    Ms G. Skripkaité

    LUXEMBOURG
    Mr R. Mayer
    Ms A. Kayser

    MALTA
    Mr J. Licari

    MOLDOVA
    Mr A. Tulbure, Chairman
    Ms E. Radvan
    Mr S. Mihov
    Mr M. Garaz

    NETHERLANDS
    Mr J. C. Landman, Vice-Chairman
    Ms M. Jongman
    Ms L. Van Schaik

    NORWAY
    Mr T. Aalbu
    Mr O. Reinertsen
    Mr H. Andreassen

    POLAND
    Mr K. Kocel
    Mr J. Kasprzyk
    Mrs S. Jaczewska

    PORTUGAL
    Mr P. Castilho
    Mr P.M. Santos Pessoa e Costa
    Mr A. Figueira

    ROMANIA
    Mr G. Magheru
    Mr D. Tanase
    Ms C. Jelescu
    Mr R. Rotundu
    Mr A. Pacuretu
    Ms M. Manailescu

    RUSSIAN FEDERATION
    Mr A. K. Orlov
    Ms T. Smirnova
    Mr O. Terentiev
    Ms M. Molodtsova

    SAN MARINO
    Mr D. Beleffi

    SERBIA AND MONTENEGRO
    Mr M. Papazoglu

    SLOVAK REPUBLIC
    Ms A. Lamperova
    Mr M. Estok
    Ms M. Slováková

    SLOVENIA
    Ms D. Lavtižar Bebler
    Mr A. Biber
    Ms M. Mrak Thorne

    SPAIN
    Mr E. Pérez de Agreda
    Mr M. Alonso

    SWEDEN
    Mr M. Ǻberg
    Mr B. Häggmark
    Mr U. Sör

    SWITZERLAND
    Mr J.C. Joseph
    Mr A.D. Henchoz
    Mr S. Winkler

    "THE FORMER
    YUGOSLAV REPUBLIC
    OF MACEDONIA"
    Ms O. Graovska
    Ms S. Zografska-Krsteska

    TURKEY
    Mr N. Hazar
    Mr Y. Belet
    Ms K. Kiliç
    Ms N. Bayraktar
    Mr E. Ozan
    Mr U. Umar
    Ms İ. Atak-Vallières

    UKRAINE
    Ms S. Stanik
    Mr O. Aleksandrovych
    Ms N. Shakuro

    UNITED KINGDOM
    Mr S. Howarth
    Ms P. Mitchison
    Mr T. Robins
    Ms F. Horine
    Ms L. Lassman

    *

    * *

    EUROPEAN COMMISSION
    -

    *

    * *

    Item 1.1

    Adoption of the Agenda

    Decisions

    The Deputies

    1. agreed to postpone the following items on the draft agenda of their 851st meeting:

    3.1 Communication by the Secretary General on the 4th Part of the 2003 Ordinary Session (Strasbourg, 25 September – 2 October 2003) and on other Assembly activities

    to their 852nd meeting (17 September 2003),

    6.1 European Committee for Social Cohesion (CDCS)

    a. Abridged report of the 10th meeting (Strasbourg, 20-22 May 2003)

    b. Draft Recommendation Rec(2003)… of the Committee of Ministers to member states on the enhancement of the access to social rights

    to their 853rd meeting (24 September 2003),

    and
    4.2 Supervision of execution of the judgments of the European Court of Human Rights – Responses in the event of slow or negligent execution

    to their 856th meeting (15 October 2003);

    2. agreed to add the following item on the agenda of their 851st meeting:

    10.3 Convention on the Transfer of Sentenced Persons (ETS No. 112) – Request by Bolivia to be invited to accede

and the following sub-item under :

    2.1 Current political questions
    . Statement by the Representative of Armenia

    3. taking into account decisions 1 and 2 above, adopted the agenda of their 851st meeting as it appears at Appendix 1 to the present volume of Decisions.

    Item 1.3

    Communication from the Secretary General -
    Staff matters

    (SG/Com(2003)851)

    Decisions

    The Deputies

    1. took note of the Secretary General's intention to confirm Mr Bendik Rugaas on the post of Director General, DGIV (Grade A7) and his re-appointment for a further year in accordance with article 25.5b of the Regulations on Appointments (Appendix 2 of the Staff Regulations);
    2. took note of the Secretary General's intention to confirm Mr Alexander Vladychenko on the post of Director, Directorate II, DGII, (Grade A6) and his reappointment for a further three years in accordance with article 25.5b of the Regulations on Appointments (Appendix 2 of the Staff Regulations);
    3. took note of the communication by the Secretary General and the Deputy Secretary General, as it appears in document SG/Com(2003)851.

    Item 1.4

    Report of the Bureau
    (CM/Bur/Del(2003)18)

    Decisions

    The Deputies

    1. decided to appoint Ambassador Anna Lamperova, Permanent Representative of Slovakia as Rapporteur on the Programme of Activities (RAP-PROG);

    2. took note of the report of the meeting of the Bureau of 8 September 2003 (CM/Bur/Del(2003)18) and approved the recommendations contained therein.

    Item 1.5

    Election of the Secretary General - Procedure

    Decision

    The Deputies agreed to examine, at their 855th meeting (9 October 2003), the timetable leading to the election of the Secretary General in the light of the outcome of the Joint Committee on 30 September 2003.

    Item 3.2a

    Written question No. 427 by Mr Jurgens: “Property rights of displaced persons in Cyprus” to the Chair of the Committee of Ministers
    (CM/Del/Dec(2003)844/1.1, CM/Del/Dec(2003)850/3.1, CM/AS(2003)Quest 427 final)

    Decision

    The Deputies noted that the Chairman's reply to Written question No. 427 by Mr Jurgens would be contained in document CM/AS(2003)Quest 427 final.

    Item 4.1

    European Committee for the Prevention of Torture and Inhuman or
    Degrading Treatment or Punishment (CPT) -
    Election of members of the CPT in respect of Cyprus and Romania

    (CM(2003)107)

    Decisions

    The Deputies, having voted in accordance with Article 5, paragraph 1, of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, and having also regard to the decision taken at their 784th meeting concerning the application of the procedure provided for in Article 5, paragraph 4, of the Convention,

    1. declared the following candidate re-elected as member of the CPT, with effect from
    1 December 2003 for a term of office which will expire on 19 December 2007:

    - Mr Petros MICHAELIDES (in respect of Cyprus);

    2. declared the following candidate re-elected as member of the CPT, with effect from
    9 September 2003 for a term of office which will expire on 19 December 2007:

    - Mr Florin Alexandru STANESCU (in respect of Romania);

    3. adopted accordingly Resolution ResCPT(2003)6, as it appears at Appendix 2 to the present volume of Decisions.

    Item 6.2

    European Population Committee (CAHP) –
    Abridged report of the 5th meeting (Strasbourg, 4-6 June 2003)
    (CM(2003)92)

    Decision

    The Deputies took note of the abridged report of the 5th meeting of the European Population Committee (CAHP) as it appears in document CM(2003)92.

    Item 7.1

    Eurimages - Evaluation of the Financial Regulations
    (CM(2003)100, CM/Del/Dec(2000)717/11.4 and 715/11.2)

    Decision

    The Deputies, in their composition limited to the member states of the Eurimages Partial Agreement1, agreed to resume consideration of this item at their next meeting (852nd meeting, 17 September 2003).

    Item 9.1

    Sustainable spatial development of the region of the Tisza/Tisa river basin –
    Draft initiative

    (CM/Inf(2003)38)

    Decisions

    The Deputies

    1. took note of the activities carried out following the mandate of the Ministers' Deputies, which have led to a draft Initiative on the Sustainable Spatial Development of the Tisza/Tisa River Basin;

    2. took note that a draft Declaration will be presented for examination at the 13th Session of the CEMAT in Ljubljana on 16 September 2003 with a view to the possible signature of the Initiative by the Ministers of the states concerned, as it appears in document CM/Inf(2003)38.

    Item 10.1a

    European Committee on legal co-operation (CDCJ)

    a. Abridged report of the 78th meeting (Strasbourg, 20 to 23 May 2003)
    (CM(2003)98)

    Decisions

    The Deputies

    1. approved the specific terms of reference of the Group of specialists on identity and terrorism
    (CJ-S-IT), as it appears at Appendix III to CM(2003)98;

    2. approved the specific terms of reference of the Group of specialists on judicial standards
    (CJ-S-JU), as it appears at Appendix IV to CM(2003)98;

    3. agreed to resume consideration of the draft specific terms of reference of the Project Group on administrative law (CJ-DA), as it appears at Appendix II to CM(2003)98 at their 852nd meeting (17 September 2003);

    4. in the light of decisions 1 to 3 above, took note of the abridged report of the European Committee on legal co-operation (CDCJ) (CM (2003)98), as a whole.

    Item 10.1b

    European Committee on legal co-operation (CDCJ)

    b. Draft Recommendation Rec(2003)… of the Committee of Ministers to member states on interoperability of information systems in the justice sector
    (CM(2003)98 and Addendum 1)

    Decisions

    The Deputies

    1. adopted Recommendation Rec(2003)14 of the Committee of Ministers to member states on interoperability of information systems in the justice sector, as it appears at Appendix 3 to the present volume of Decisions;

    2. took note of the explanatory memorandum thereto, as set out in document CM(2003)98 Addendum 1.

    Item 10.1c

    European Committee on legal co-operation (CDCJ)

    c. Draft Recommendation Rec(2003)… of the Committee of Ministers to member states on archiving electronic documents in the legal sector
    (CM(2003)98 and Addendum 2 revised)

    Decisions

    The Deputies

    1. adopted Recommendation Rec(2003)15 of the Committee of Ministers to member states on archiving electronic documents in the legal sector, as it appears at Appendix 4 to the present volume of Decisions;

    2. took note of the explanatory memorandum thereto, as set out in document CM(2003)98,
    Addendum 2 revised.

    Item 10.1d

    European Committee on legal co-operation (CDCJ)

    d. Draft Recommendation Rec(2003)… of the Committee of Ministers to member states on the execution of administrative and judicial decisions in the field of administrative law
    (CM(2003)98 and Addendum 3)

    Decisions

    The Deputies

    1. adopted Recommendation Rec(2003)16 of the Committee of Ministers to member states on the execution of administrative and judicial decisions in the field of administrative law, as it appears at Appendix 5 to the present volume of Decisions;

    2. took note of the explanatory memorandum thereto, as set out in document CM(2003)98 Addendum 3.

    Item 10.1e

    European Committee on legal co-operation (CDCJ)

    e. Draft Recommendation Rec(2003)… of the Committee of Ministers to member states on enforcement
    (CM(2003)98 and Addendum 4)

    Decision

    The Deputies

    1. adopted Recommendation Rec(2003)17 of the Committee of Ministers to member states on enforcement, as it appears at Appendix 6 to the present volume of Decisions;

    2. took note of the explanatory memorandum thereto, as set out in document CM(2003)98 Addendum 4.

    Item 10.1f

    European Committee on legal co-operation (CDCJ)

    f. Draft Recommendation Rec(2003)… of the Committee of Ministers to member states containing a transmission form for legal aid abroad for use under the European Agreement on the transmission of applications for legal aid (ETS No. 092) and its Additional Protocol (ETS No. 197)
    (CM(2003)98 and Addendum 5)

    Decisions

    The Deputies

    1. adopted Recommendation Rec(2003)18 of the Committee of Ministers to member states containing a transmission form for legal aid abroad for use under the European Agreement on the transmission of applications for legal aid (ETS No. 092) and its Additional Protocol (ETS No. 197), as they appear at Appendix 7 to the present volume of Decisions;

    2. took note of the explanatory memorandum thereto, as set out in document CM(2003)98 Addendum 5.

    Item 10.2a

    Ad hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR)

    a. Abridged report of the 54th meeting (Strasbourg, 26-28 March 2003)
    (CM(2003)104)

    Decision

    The Deputies took note of the abridged report of the 54th meeting of the ad hoc Committee of experts on the legal aspects of territorial asylum, refugees and stateless persons (CAHAR), as it appears in document
    CM(2003)104 as a whole.

    Item 10.2b

    Ad hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR)

    b. Draft Recommendation Rec(2003)… of the Committee of Ministers to member states on the concept of “membership of a particular social group” (MPSG) in the context of the 1951 Convention relating to the status of refugees and the explanatory memorandum
    (CM(2003)104 and Addendum)

    Decision

    The Deputies agreed to refer this item to the Rapporteur Group on Legal Co-operation (GR-J) for further consideration.

    Item 10.2c

    Ad hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR)

    c. Draft ad hoc terms of reference for the elaboration of guidelines of good conduct for expulsion procedures prepared by the Bureau of CAHAR in accordance with the finding of the 54th meeting of CAHAR

    Decision

    The Deputies adopted Decision No. CM/859/09092003, giving ad hoc terms of reference to the CAHAR as it appears at Appendix 8 to the volume of Decisions.

    Item 10.3

    Council of Europe's Convention on the Transfer of Sentenced Persons (ETS No. 112) –
    Request by Bolivia to be invited to accede

    Decisions

    The Deputies

    1. took note of Bolivia's request to be invited to accede to the Convention on the Transfer of Sentenced Persons (ETS No. 112) and noted that the Committee of Ministers agreed in principle to granting this request;

    2. instructed the Secretariat to consult the non-member states which are Contracting States to the Convention on the Transfer of Sentenced Persons (ETS No. 112), i.e. Australia, the Bahamas, Canada, Chile, Costa Rica, Israel, Japan, Panama, Tonga, Trinidad and Tobago, the United States of America and Venezuela, and set 31 October 2003 as the deadline for a reply;

    3. agreed that if there was no objection from the non-member states consulted, the decision to invite Bolivia to accede to the Convention on the Transfer of Sentenced Persons (ETS No. 112) would be regarded as adopted on 12 November 2003 (860th meeting of the Deputies);

    4. agreed to resume consideration of this item if the non-member states consulted raised an objection concerning Bolivia's accession.

    Appendix 1
    (Item 1.1)

    851 Meeting of the Ministers' Deputies
    Strasbourg, 9 September 2003 (10:00)

    Agenda

 

1. General questions

 

1.1

Adoption of the Agenda

 

1.2

Preparation of forthcoming meetings

 

1.3

Communication from the Secretary General

 

1.4

Report of the Bureau

 

1.5

Election of the Secretary General - Procedure

(CM/Notes/851/1.5 of 14.8.2003)

 

2. Political questions

 

2.1

Current political questions
. Statement by the Representative of Armenia

 

2.2

Situation in Cyprus

 

3. Parliamentary Assembly

 

3.1

Communication by the Secretary General on the 4th Part of the 2003 Ordinary Session (Strasbourg, 25 September – 2 October 2003) and on other Assembly activities

 

(Item postponed)

 

3.2

Written question by members of the Parliamentary Assembly to the Chair of the Committee of Ministers

a. Written question No. 427 by Mr Jurgens: “Property rights of displaced persons in Cyprus”


(CM/Del/Dec(2003)844/1.1 and 850/3.1b, CM/AS(2003)Quest427 prov.)
(CM/Notes/851/3.2a of 05.09.2003)

 

4. Human Rights

 

4.1

European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) – Election of members of the CPT in respect of Cyprus and Romania
(Item prepared by the GR-H)


(CM(2003)107)
(CM/Notes/851/4.1 of 12.8.2003)

 

4.2

Supervision of execution of the judgments of the European Court of Human Rights – Responses in the event of slow or negligent execution

(CM/Del/OJ/OT(2003)847/point d and CM(2003)37 revised 2 of …)
(CM/Notes/850/4.6 revised (English only) of …)

 

(Item postponed)

 

6. Social cohesion

 

6.1

European Committee for Social Cohesion (CDCS)

a. Abridged report of the 10th meeting (Strasbourg, 20-22 May 2003)

b. Draft Recommendation Rec(2003)… of the Committee of Ministers to member states on the enhancement of the access to social rights


(CM(2003)86 and Addendum)
(CM/Notes/851/6.1 of 15.7.2003)

 

(Item postponed)

 

6.2

European Population Committee (CAHP) – Abridged report of the 5th meeting (Strasbourg, 4-6 June 2003)

(CM(2003)92)
(CM/Notes/851/6.2 of 11.7.2003)

 

7. Education and Culture

 

7.1

Eurimages – Evaluation of the Financial Regulations

(CM/Del/Dec(2000)715/11.2 et 717/11.4,
CM(2003)100)
(CM/Notes/851/7.1 of 21.8.2003)

 

9. Sustainable development

 

9.1

Sustainable spatial development of the region of the Tisza/Tisa river basin – Draft initiative

(CM/Notes/851/9.1 of 26.8.2003 and Addendum of 3.9.2003)

 

10. Legal questions

 

10.1

European Committee on legal co-operation (CDCJ)

a. Abridged report of the 78th meeting (Strasbourg, 20 to 23 May 2003)


(CM(2003)98)


b. Draft Recommendation Rec(2003)… of the Committee of Ministers to member states on interoperability of information systems in the justice sector and its Explanatory Memorandum


(Addendum 1 to CM(2003)98)

   

c. Draft Recommendation Rec(2003)… of the Committee of Ministers to member states on archiving electronic documents in the legal sector and its Explanatory Memorandum

(Addendum 2 to CM(2003)98)


d. Draft Recommendation Rec(2003)… of the Committee of Ministers to member states on the execution of administrative and judicial decisions in the field of administrative law and its Explanatory Memorandum


(Addendum 3 to CM(2003)98)

e.
Draft Recommendation Rec(2003)… of the Committee of Ministers to member states on enforcement and its Explanatory Memorandum

(Addendum 4 to CM(2003)98)


f. Draft Recommendation Rec(2003)… of the Committee of Ministers to member states containing a transmission form for legal aid abroad for use under the European Agreement on the transmission of applications for legal aid (ETS no. 092) and its Additional Protocol (ETS no. 179)


(Addendum 5 to CM(2003)98)
(CM/Notes/851/10.1 of 29.8.2003)

 

10.2

Ad hoc Committee of experts on the legal aspects of territorial asylum, refugees and stateless persons (CAHAR)

a. Abridged report of the 54th meeting (Strasbourg, 26-28 March 2003)

b. Draft Recommendation Rec(2003)… of the Committee of Ministers to member states on the concept of “membership of a particular social group” (MPSG) in the context of the 1951 Convention relating to the Status of Refugees and its Explanatory Memorandum


(CM(2003)104 and Addendum)
(CM/Notes/851/10.2 of 19.8.2003)


c. Draft ad hoc terms of reference for the elaboration of guidelines of good conduct for expulsion procedures prepared by the Bureau of CAHAR in accordance with the finding of the 54th meeting of CAHAR

 

10.3

Convention on the Transfer of Sentenced Persons (ETS No. 112) – Request by Bolivia to be invited to accede

(CM/Notes/851/10.3 of 29.8.2003)

 

13. Any other business

    Appendix 2
    (Item 4.1)

    Resolution ResCPT(2003)6
    Election of members of the European Committee for the Prevention of Torture
    and Inhuman or Degrading Treatment or Punishment (CPT)

    in respect of Cyprus and Romania

    (Adopted by the Committee of Ministers on 9 September 2003
    at the 851st meeting of the Ministers' Deputies)

    The Committee of Ministers, under the terms of Article 5 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereafter referred to as “the Convention”),

    Having regard to Articles 1 and 4 of the Convention;

    Considering that the seat of the member of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereafter referred to as “the Committee”) elected in respect of Cyprus will become vacant on 30 November 2003;

    Considering that the seat of the member of the Committee elected in respect of Romania has been vacant since 21 March 2003;

    Considering that, in the light of the foregoing, it is necessary to elect members of the Committee in respect of Cyprus and Romania;

    Having regard to the lists of names drawn up by the Bureau of the Parliamentary Assembly, in accordance with the provisions of Article 5, paragraph 1, of the Convention, on the basis of proposals from the Representatives to the Parliamentary Assembly of Cyprus and Romania and forwarded to the Chairman of the Committee of Ministers by the Secretary General of the Parliamentary Assembly;

    Having regard to the provisions of Article 5, paragraphs 3 and 4, of the Convention;

    Having voted by secret ballot,

    Declares the following candidate re-elected as member of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, with effect from 1 December 2003 for a term of office which will expire on 19 December 2007:

    - Mr Petros MICHAELIDES (in respect of Cyprus);

    Declares the following candidate re-elected as member of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, with effect from 9 September 2003 for a term of office which will expire on 19 December 2007:

    - Mr Florin Alexandru STANESCU (in respect of Romania).

    Appendix 3
    (Item 10.1b)

    Recommendation Rec(2003)14
    of the Committee of Ministers to member states
    on the interoperability of information systems in the justice sector

    (adopted by the Committee of Ministers on 9 September 2003
    at the 851st meeting of the Ministers' Deputies)

    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 to achieve greater unity among its members; 

    Determined to improve the quality of public service to citizens and businesses in the justice sector;

    Affirming that an efficient justice system is essential to consolidate democracy and strengthen the rule of law, as it will increase public trust and confidence in the state authority, in particular its ability to fight against crime and solve legal conflicts;

    Recognising that information technology has become indispensable for efficient functioning of the justice system, especially in the light of the increasing workload of the courts and other justice sector organisations;

    Recognising that efficient functioning of the justice sector in the information age requires legal recognition and wide use of electronic data exchanges between different organisations;

    Bearing in mind that constitutional, legal and administrative requirements and traditions entail the existence of a large diversity of information systems in the justice sectors of member states;

    Aware of the growing complexity of information systems in the justice sector;

    Realising that efficient and secure electronic data exchanges among different justice sector organisations in these conditions require interoperability of their information systems;

    Recognising the potential of interoperability for facilitating transborder legal co-operation to meet the increasing practical need for closer co-operation between countries in the justice sector;

    Aware of the various interoperability problems of information systems in the justice sector resulting from administrative, management and technical deficiencies;

    Recognising the need to improve the interoperability of information systems in the justice sector by applying interoperable document and communication standards and integrated approaches to information technology projects;

    Recognising that the introduction of interoperability in the justice sector requires also appropriate changes to the relevant law and work processes and adequate training of personnel;

    Bearing in mind that interoperability solutions for the justice sector should be adapted to the specific requirements of member states;

    Recognising the existence of varying interoperability needs of member states resulting from their differences regarding the development of information technology in the justice sector;

    Recalling that changes in the work processes of justice sector organisations introduced by the interoperability should in no way affect the constitutional guarantees of the independence of the judiciary in the process of the administration of justice;

    Aware that data processing in the conditions of interoperability presents both advantages and risks with regard to information security and protection of privacy in the justice sector;

    Having regard to Recommendation Rec(2001)2 concerning the design and redesign of court systems and legal information systems in a cost-effective manner, Recommendation Rec(2001)3 on the delivery of court and other legal services to the citizen through the use of new technologies and Recommendation Rec(2002)2 on access to official documents,

    Recommends that governments of member states: 

    1. implement the principles and guidelines set out in this recommendation in their domestic law and practice;  

    2. bring these principles and guidelines to the attention of persons and institutions responsible for information technology and interoperability in the justice sector.

    I. General provisions

    1. Definitions

    For the purposes of this recommendation:

    – “justice sector organisations” shall comprise the courts, prosecution and other public and private institutions, such as the police, penitentiary systems, public registers, civil status authorities, lawyers, notaries as well as other public and private stakeholders that exchange data and information in the process of the administration of justice;

    – “information systems” shall mean information technology systems used by justice sector organisations for electronic data processing, storage and exchange, such as case (workflow) management systems and databases;

    – “interoperability” shall mean efficient and secure data and information exchanges among the information systems of justice sector organisations.

    2. Objective

    The objective of this recommendation is to facilitate the interoperability of information systems by laying down principles and guidelines for member states concerning steps and measures to be taken at the level of information technology policy, process design and technical architecture of data and information in the justice sector.

    II. Policy issues

    3. Interoperability strategy

    3.1. Member states should ensure that information technology projects launched in the justice sector take into account the need to ensure interoperability of information systems among various justice sector organisations.

    3.2. An information technology strategy for the justice sector should take into account inter alia the following:

    – stage-by-stage computerisation of the justice system;
    – the establishment of communications infrastructure, including e-mail facilities;

    – the development of an integration strategy to allow for system-to-system communication;
    – the harmonisation of information to the extent needed;
    – the establishment of an integrated system for data collection and statistical analysis;
    – the introduction of a common management information system;
    – the establishment of common internal information registers;
    – the development of standard software for databases.

    3.3. Information technology projects in the justice sector should, therefore, be implemented in the framework of co-ordinated programmes allowing for consistent actions to be taken in various interconnected fields and among different stakeholders, thus assuring the appropriate co-ordination and financing.

    3.4. The introduction of interoperability in the justice sector should be based on cost-efficiency considerations. The required level of interoperability in each particular case should be determined with due regard to the costs involved and expected benefits.

    4. Non-technical security and personal data protection

    4.1. Member states should implement interoperability of information systems in the justice sector, taking full account of the need to ensure the security of information and personal data protection as required by applicable international standards and national law.

    4.2. Member states should take measures to determine the roles and responsibilities of personnel of justice sector organisations regarding the use of information technology applications. Justice sector organisations should ensure, in particular, that they inform their personnel of the relevant legislation and regulations which apply to the way information and data are handled within the justice sector.

    4.3. Member states should provide for the establishment of audit or control points at relevant positions in the automated information and document flows inside and among the justice sector organisations.

    5. Human resources

    5.1. In the introduction of information technology, justice sector organisations should deploy the necessary human resources to make sound judgements on the proposed systems and services.

    5.2. Justice sector organisations should be provided with qualified personnel in charge of their information systems to ensure the respect of integrity, availability, storage and identification of electronic documents and data processed by the organisation concerned.

    5.3. Member states should take measures to promote the training of lawyers and other personnel of justice sector organisations in matters related to the application of information technology. Incentives for the personnel of justice sector organisations should be created to encourage them to use information technology applications in their daily work.

    6. Interoperability between the public and the private sectors

    6.1. Member states should promote methods of electronic exchanges between public justice sector information systems and those of private justice sector organisations such as lawyers and other stakeholders. Such data exchanges may only be carried out in accordance with international and national law.

    6.2. Member states should, at the same time, consider and implement appropriate precautions to ensure information security and personal data protection. Systems of accountability should be established in order to be able to control how information subject to special protection is handled.

    III. Redefining the process design

    7. Changes to work processes

    7.1. To obtain maximum benefits from the introduction of information technology, member states should link the introduction of modern information technology in the justice sector to organisational changes to work processes of justice sector organisations.

    7.2. Member states should have an open-minded approach to modernising laws and regulations where they constrain the use of opportunities made available by the new information technologies and, in particular, interoperability.

    7.3. Introduction of interoperability in the justice sector should, however, be a controlled process. Member states should ensure that justice sector organisations identify, document and describe their work processes and monitor and control the changes introduced by interoperability.

    8. Interorganisational process chains

    8.1. Member states should apply interoperability solutions to all relevant fields where the interinstitutional co-operation of individual justice sector organisations is vital, such as criminal and civil justice systems.

    8.2. Case management systems of justice sector organisations should, in particular, be prepared for delivering and receiving information from other external case management systems and providing support in the decision-making process by enabling access to a complete range of relevant databases.

    8.3. Member states should facilitate the interoperability of various databases by introducing such unifying measures as unique identification codes and uniform data definitions.

    IV. Technical and information architecture

    9. Document and communication standards

    9.1. Member states should adopt an integrated approach to the introduction of document and communications standards in the justice sector to enable data to be assembled in an agreed and structured way.

    9.2. Interoperability can nevertheless be achieved by using more than one data standard since the adoption of a single standard may not be always possible. In this respect, member states should follow the development of the leading market de facto standards rather than attempt to create distinct standards for the justice sector.

    9.3. In particular, member states should pay attention to the development of mark-up languages as promising emerging document and communication standards in the justice sector.

    10. Technical security

    10.1. Justice sector organisations should establish procedures to monitor and control potential exposure to risks arising from the misuse or failure of their information systems. These procedures should include security guidelines ensuring control of access to the various levels of their information systems.

    10.2. Member states should, where appropriate, promote the application of cryptography in the justice sector to address some of the risks inherent in the digital media to secure electronic communications between various justice sector organisations.

    10.3. Member states should also widely implement Public Key Infrastructure with respect to the justice sector organisations to ensure message integrity and non-repudiation as well as confidentiality through the ability to authenticate the recipient or sender of the message and verify electronic signatures with electronic certificates issued by trusted intermediaries.

    Appendix 4
    (Item 10.1c)

    Recommendation Rec(2003)15
    of the Committee of Ministers to member states
    on archiving of electronic documents in the legal sector

    (adopted by the Committee of Ministers on 9 September 2003
    at the 851st meeting of the Ministers' Deputies)

    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 to achieve greater unity among its members; 

    Considering that archiving is an essential part of case processing in the legal sector;

    Bearing in mind that various legal documents are required by law to be preserved for very long periods of time or even permanently;

    Aware that the growing number of computer users and electronic communications, the digitising of sound and video recording, and the introduction of more powerful information technology systems is bound to increase the use of electronic documents in the legal sector;

    Bearing in mind that an increasing number of legal documents will be produced in electronic form in accordance with the legislation on electronic signatures;

    Considering that adequate procedures for the archiving of electronic documents are essential to promote the legal recognition and wide use of electronic documents, electronic signatures and electronic data processing in the legal sector;

    Recognising that electronic documents offer numerous advantages and extensive functionality such as vast access, display and communication possibilities;

    Realising, at the same time, that the preservation of electronic documents faces the problem of the limited longevity of the conservation media, the diversity of document formats and standards, and the rapid obsolescence of the hardware and software required for their readability;

    Aware also of the organisational problems, high costs and security-related risks in the preservation of electronic documents;

    Resolved to find appropriate solutions for the archiving of electronic documents in the legal sector;

    Recognising at the same time that the constant evolution of technology does not permit the setting of definitive technical standards for the archiving of electronic documents;

    Considering, nevertheless, that when drawing the attention of member states, legal sector organisations and archiving services to the risks and problems related to the archiving of electronic documents, it is essential to promote continuous research in this field;

    Having regard to Recommendation No. R (95) 11 concerning the selection, processing, presentation and archiving of court decisions in legal information retrieval systems, Recommendation No. R (2000) 13 on a European policy on access to archives, Recommendation Rec(2001)2 concerning the design and re-design of court systems and legal information systems in a cost-effective manner, Recommendation Rec(2002)2 on access to official documents and Recommendation Rec(2003)14 on the interoperability of information systems in the justice sector,

    Recommends that governments of member states: 

    1. implement the principles and guidelines set out in this recommendation in their domestic law and practice;  

    2. bring these principles and guidelines to the attention of persons and institutions responsible for the archiving of electronic documents in the legal sector.

    1. Definitions

    For the purposes of this recommendation:

    – “archiving” shall mean the preservation of documents for periods prescribed by the applicable law and regulations of member states, consisting of the following two stages:

    i. “initial preservation”: preservation related to the primary purposes for which the documents have been produced in view of their evidential value;
    ii. “subsequent archiving”: preservation related to the heritage value of the documents beyond their primary purposes;

    – “archiving services” shall mean bodies responsible for archiving, including:

    i. “archivists”: persons or departments within the organisations that have produced or received the documents in question as well as specialised archiving services responsible for initial preservation of documents;
    ii. “Archives”: public national institutions or public institutions of local communities responsible for subsequent archiving, in accordance with the applicable law and regulations of member states;

    – “electronic documents” shall refer to documents, including texts as well as images, audio and video in digital form, which have the capacity to create rights or have evidential value and may be submitted to a public repository;

    – “legal sector” shall comprise all public and private stakeholders that act as producers or recipients of electronic documents within the meaning of the previous definition.

    2. General provisions

    2.1. Member states should ensure that the legal norms regulating archiving are applied also to electronic documents.

    2.2. Electronic documents should be archived in a way that preserves their integrity, authenticity, reliability, and, where appropriate, their confidentiality.

    2.3. The readability and accessibility of archived electronic documents should be guaranteed over time, taking into account the evolution of information technology.

    2.4. As in the case of the archiving of paper-based documents, the period of preservation of electronic documents and the time at which they may be made available to the public should be determined in collaboration with the archivists.

    2.5. Archived electronic documents should be associated with standardised metadata describing the context of their creation as well as the existing links with other electronic, paper-based or analogue documents.

    2.6. Encrypted electronic documents should be archived in a decrypted form.

    2.7. Digitisation of paper-based or analogue documents can be justified for their more efficient use and processing but should not aim necessarily at replacing archiving of documents in their original form.

    3. Organisational measures

    3.1. Initial preservation of electronic documents should be carried out either by the responsible staff within the organisations that have produced or received the electronic documents in question, or by specialised archiving services, in co-ordination with Archives.

    3.2. Member states should encourage the reduction, after the closure of the files concerned, of the legal delays for the transfer of electronic documents to Archives for subsequent archiving.

    3.3. Electronic documents submitted to archiving services should be accompanied by their metadata.

    3.4. Member states should endeavour to provide the Archives and organisations in the legal sector entrusted by law with the duty of archiving, with the necessary resources for the archiving of electronic documents.

    3.5. Archives should implement electronic document archiving programmes in order to accumulate the necessary know-how and thus be in a position to provide the necessary recommendations on the archiving of electronic documents to archivists and other organisations concerned.

    4. Security measures

    4.1. All operations concerning the archiving of electronic documents should be subject to procedures ensuring their traceability.

    4.2. Archiving services should verify, possibly through the use of electronic signatures or other electronic procedures, that electronic documents are submitted to them by competent persons or organisations and that they have not been altered during their transmission.

    4.3. The entry, modification or deletion of electronic documents in electronic document archiving systems should be executed by specialists authorised and trained to carry out such operations.

    4.4. Member states should facilitate the use of modern security techniques to preserve the integrity of archived electronic documents, such as an electronic signature for storage media or the use of non-rewriteable storage media.

    4.5. Copies of the archived electronic document should be preserved by the archiving services, if possible on several different storage media.

    4.6. Procedures should be put in place to ensure the physical protection of premises where the electronic document archiving systems are situated, including adequate storage conditions and access control. The electronic document archiving systems should be subject to periodic assessment.

    5. Conservation measures

    5.1. Electronic documents should be archived by periodically applying migration techniques – periodic transfer of data from one storage medium to another or from one format to another. Migration should also apply to metadata concerning the archived electronic documents.

    5.2. Migration to new storage media should take place regularly, taking account of degradation and wear in the medium in question. Storage media should be renewed when they become obsolete because of the technological development of media and hardware.

    5.3. Migration to new formats should be carried out, when appropriate, in view of the technological evolution.

    5.4. Member states should also encourage research and experimentation in emulation as an alternative method for the preservation of electronic documents.

    6. Document formats

    6.1. Member states should encourage uniformity in the document formats used in the legal sector.

    6.2. Member states should ensure that these formats are open, international and standard, and that they permit subsequent migration of data and allow processing in different languages.

    6.3. Archiving services should be consulted on and involved in the selection of formats and the definition of metadata to ensure that the subsequent requirements for the archiving of electronic documents are properly taken into account.

    7. Electronic signatures

    7.1. As it is the responsibility of the creating authority to verify the authenticity of the electronic document by verifying its electronic signature at the moment when this electronic document is under its control and before its transmission to archiving, the archiving services should not be obliged to verify electronic signatures used initially by those who have contributed to the preparation of the electronic document that has been certified with an electronic signature.

    7.2. An archived electronic document should be considered reliable and valid, in the absence of proof to the contrary, regardless of the possibility of continuous verification of its initial electronic signature, provided that it has been transmitted to and preserved by archiving services in accordance with the security requirements as specified in Principle 4.

    Appendix 5
    (Item 10.1d)

    Recommendation Rec(2003)16
    of the Committee of Ministers to member states
    on the execution of administrative and judicial decisions in the field of administrative law

    (adopted by the Committee of Ministers on 9 September 2003
    at the 851st meeting of the Ministers' Deputies)

    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 to achieve greater unity among its members;

    Considering that it is necessary to maintain the trust of private persons in the administrative and judicial system and that, for this reason, both decisions by administrative authorities entailing obligations for private persons and judicial decisions in the field of administrative law recognising rights for private persons should be executed;

    Considering that the action of the administrative authorities presumes that their decisions are efficiently implemented by private persons;

    Considering that the execution of administrative decisions should have regard to the rights and interests of private persons;

    Recalling in this respect the general principles governing the protection of the individual in relation to the acts of administrative authorities as set out in Resolution (77) 31 and the principles concerning the exercise of discretionary powers by administrative authorities set out in Recommendation No. R (80) 2;

    Recalling also Recommendation No. R (89) 8 on provisional court protection in administrative matters, requiring the competent judicial authority, if the execution of an administrative decision may cause severe damage to the private persons to whom it is addressed, to take appropriate measures of provisional protection;

    Considering that the efficiency of justice requires that judicial decisions in the field of administrative law be executed, in particular when they are addressed to administrative authorities;

    Recalling in this respect the rights protected by the European Convention on Human Rights, of which the execution of court decisions within a reasonable time must be regarded as an integral part;

    Recalling also Recommendation No. R (84) 15 relating to public liability, recommending that member states set up appropriate machinery to ensure that a lack of funds does not prevent obligations of public authorities in the field of public liability from being satisfied;

    Recalling, finally, Resolution No. 3 of the 24th Conference of European Ministers of Justice, held in Moscow from 4 to 5 October 2001 on a “general approach and means of achieving effective enforcement of judicial decisions”, inviting the Council of Europe to “identify common standards and principles at a European level for the enforcement of court decisions”,

    Recommends that the governments of member states ensure the effective execution of administrative and judicial decisions in the field of administrative law by following, in their legislation and their practice, the principles of good practice contained in the appendix to this recommendation.

    Appendix to Recommendation Rec(2003)16

    I. Execution of administrative decisions regarding private persons

    Scope of application: the principles contained in this part apply to any individual measure or decision which is taken in the exercise of public authority and which is of such nature as directly to affect the rights, liberties or interests of persons, either physically or legally.

    1. Implementation

    a. Member states should provide an appropriate legal framework to ensure that private persons comply with administrative decisions that have been brought to their knowledge in accordance with the law, notwithstanding the protection by judicial authorities of their rights and interests.

    b. Where it is not provided for by law that the introduction of an appeal against a decision entails automatic suspension, private persons should be able to request an administrative or judicial authority to suspend the implementation of the contested decision in order to ensure the protection of their rights and interests.

    c. This possibility should be exercised within reasonable time limits in order to avoid unnecessarily blocking the action of the administrative authorities and to ensure legal certainty.

    d. In deciding on the request for suspension, the public interest and the rights and interests of third persons should be taken into account by the administrative authority and, unless it is excluded by law, by the judicial authority.

    2. Enforcement

    a. The use of enforcement by administrative authorities should be subject to the following guarantees:

    i. enforcement is to be expressly provided for by law;

    ii. private persons against whom the decision is to be enforced are to be given the possibility to comply with the administrative decision within reasonable time except in urgent duly justified cases;

    iii. the use of and the justification for enforcement are to be brought to the attention of the private persons against whom the decision is to be enforced;

    iv. the enforcement measures used including any accompanying monetary sanctions are to respect the principle of proportionality.

    b. In urgent cases, the extent of the enforcement procedure should be proportionate to the urgency of the case.

    c. Private persons should be able to lodge an appeal before a judicial authority against the enforcement procedure in order to ensure the protection of their rights and interests.

    d. If the administrative authority does not use an enforcement procedure, those whose rights and interests are protected by the non-implemented decision should be able to apply to a judicial authority.

    II. Execution of judicial decisions regarding administrative authorities

    1. General provisions

    a. Member states should ensure that administrative authorities implement judicial decisions within a reasonable period of time. In order to give full effect to these decisions, they should take all necessary measures in accordance with the law.

    b. In cases of non-implementation by an administrative authority of a judicial decision, an appropriate procedure should be provided to seek execution of that decision, in particular through an injunction or a coercive fine.

    c. Member states should ensure that administrative authorities will be held liable where they refuse or neglect to implement judicial decisions. Public officials in charge of the implementation of judicial decisions may also be held individually liable in disciplinary, civil or criminal proceedings if they fail to implement them.

    2. Execution of judicial decisions entailing an obligation to pay a sum of money

    a. Member states should ensure that where administrative authorities are obliged to pay a sum of money, they comply with this obligation within a reasonable period of time.

    b. Interest payable by an administrative authority, due to non-implementation of judicial decisions entailing an obligation to pay a sum of money, should be no less than interest payable by a private person to an administrative authority in a similar situation.

    c. It should be ensured that the administrative authority has appropriate provision to avoid a situation whereby a lack of funds would prevent it meeting its obligation to pay a sum of money.

    d. In the case of non-implementation by administrative authorities of judicial decisions entailing an obligation to pay a sum of money, member states should also consider opening up the possibility to seize the property of the administrative authorities within the limits prescribed by law.

    Appendix 6
    (Item 10.1e)

    Recommendation Rec(2003)17
    of the Committee of Ministers to member states
    on enforcement

    (adopted by the Committee of Ministers on 9 September 2003
    at the 851st meeting of the Ministers' Deputies)

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

    Recognising that the rule of law on which European democracies are based is dependent on the support of fair, efficient and accessible judicial systems;

    Considering that the enforcement of a court judgment is an integral part of the fundamental human right to a fair trial within a reasonable time, in accordance with Article 6 of the European Convention on Human Rights (hereinafter referred to as “the ECHR”);

    Acknowledging also that the rule of law principle can only be a reality if citizens can, in practice, assert their legal rights and challenge unlawful acts;

    Considering that member states have a duty to ensure that all persons who receive a final and binding court judgment have the right to its enforcement. The non-enforcement of such a judgment, or a delay in it taking effect, could render this right inoperative and illusory to the detriment of one party;

    Convinced of the need to promote greater efficiency and fairness in the enforcement of judgments in civil cases and to strike a positive balance between the rights and interests of the parties to the enforcement process;

    Aware of the risk that without an effective system of enforcement, other forms of “private justice” may flourish and have adverse consequences on the public's confidence in the legal system and its credibility;

    Recalling Resolution No. 3 of the 24th Conference of European Ministers of Justice on a “General approach and means of achieving effective enforcement of judicial decisions”, held in Moscow on 4 and 5 October 2001, in which it was agreed that the “proper, effective and efficient enforcement of court decisions is of capital importance for States in order to create, reinforce and develop a strong and respected judicial system”;

    Bearing in mind Resolution Res(2002)12 establishing the European Commission for the Efficiency of Justice (CEPEJ), adopted by the Committee of Ministers on 18 September 2002;

    Having regard to the importance of information technology in improving the efficiency of the enforcement process and the relevant Council of Europe legal instruments in this field, including Recommendation Rec(2003)14 on the interoperability of information systems in the justice sector and Recommendation Rec(2003)15 on the archiving of electronic documents in the legal sector,

    Recommends that governments of member states:

    – facilitate the efficient and cost-effective enforcement of judicial decisions, as well as of other judicial or non-judicial enforceable titles, as appropriate;

    – take or reinforce, as the case may be, all measures which they consider necessary with a view to the progressive implementation of the “Guiding principles concerning enforcement” set out below.

    Guiding principles concerning enforcement

    I. Definitions

    For the purpose of this recommendation,

    a. “Enforcement” means the putting into effect of judicial decisions, and also other judicial or non-judicial enforceable titles in compliance with the law which compels the defendant to do, to refrain from doing or to pay what has been adjudged;

    b. “Enforcement agent” means a person authorised by the state to carry out the enforcement process irrespective of whether that person is employed by the state or not;

    c. “Claimant” means a party seeking enforcement;

    d. “Defendant” means a party against whom enforcement is sought.

    II. Scope of application

    1. This recommendation applies to civil matters, including commercial, consumer, labour and family law. It does not apply to administrative matters. This recommendation may also apply to criminal matters which are not concerned with the deprivation of liberty.

    2. Moreover, this recommendation applies to the enforcement of judicial decisions, as well as of other judicial or non-judicial enforceable titles.

    III. Enforcement procedures

    1. In order for enforcement procedures to be as effective and efficient as possible,

    a. enforcement should be defined and underpinned by a clear legal framework, setting out the powers, rights and responsibilities of the parties and third parties;

    b. enforcement should be carried out in compliance with the relevant law and judicial decisions. Any legislation should be sufficiently detailed to provide legal certainty and transparency to the process, as well as to provide for this process to be as foreseeable and efficient as possible;

    c. the parties should have a duty to co-operate appropriately in the enforcement process; in addition, and, in particular, in family law matters, the relevant authorities should facilitate this co-operation;

    d. defendants should provide up-to-date information on their income, assets and on other relevant matters;

    e. states should set up a mechanism to prevent misuse of the enforcement process by either party which should not be considered as a re-adjudication of the case;

    f. there should be no postponement of the enforcement process unless there are reasons prescribed by law. Postponement may be subject to review by the court;

    g. during the enforcement process, a proper balance should be struck between claimants' and defendants' interests, bearing in mind, in particular, the provisions of both Articles 6 and 8 of the ECHR. Where appropriate, the interests of third parties should also be taken into account. When the enforcement process concerns family law matters, the interests of the members of the family should be taken into account; in addition, when the enforcement process concerns, in particular, the rights of children, the best interests of the child should be a primary consideration, in accordance with international and national law;

    h. certain essential assets and income of the defendant should be protected, such as basic household goods, basic social allowances, monies for essential medical needs and necessary working tools.

    2. Enforcement procedures should:

    a. be clearly defined and easy for enforcement agents to administer;

    b. prescribe an exhaustive definition and listing of enforceable titles and how they become effective;

    c. clearly define the rights and duties of defendants, claimants and third parties, including, in the two latter cases, their rankings and entitlements to monies recovered and distributed amongst claimants;

    d. provide for the most effective and appropriate means of serving documents (for example, personal service by enforcement agents, electronic means, post);

    e. provide for measures to deter or prevent procedural abuses;

    f. prescribe a right for parties to request the suspension of the enforcement in order to ensure the protection of their rights and interests;

    g. prescribe, where appropriate, a right of review of judicial and non-judicial decisions made during the enforcement process.

    3. Enforcement fees should be reasonable, prescribed by law and made known in advance to the parties.

    4. The attempts to carry out the enforcement process should be proportionate to the claim, the anticipated proceeds to be recovered, as well as the interests of the defendant.

    5. The necessary costs of enforcement should be generally borne by the defendant, notwithstanding the possibility that costs may be borne by other parties if they abuse the process.

    6. The search and seizure of defendants' assets should be made as effective as possible taking into account relevant human rights and data protection provisions. There should be fast and efficient collection of necessary information on defendants' assets through access to relevant information contained in registers and other sources, as well as the option for defendants to make a declaration of their assets.

    7. Assets should be sold promptly while still seeking to obtain the highest market value and avoiding any costly and unnecessary depreciation.

    IV. Enforcement agents

    1. Where states make use of enforcement agents to carry out the enforcement process, they should comply with the principles contained in this recommendation.

    2. Enforcement agents' status, role, responsibilities and powers should be prescribed by law in order to bring as much certainty and transparency to the enforcement process as possible. States should be free to determine the professional status of enforcement agents.

    3. In recruiting enforcement agents, consideration should be given to the moral standards of candidates and their legal knowledge and training in relevant law and procedure. To this end, they should be required to take examinations to assess their theoretical and practical knowledge.

    4. Enforcement agents should be honourable and competent in the performance of their duties and should act, at all times, according to recognised high professional and ethical standards. They should be unbiased in their dealings with the parties and be subject to professional scrutiny and monitoring which may include judicial control.

    5. The powers and responsibilities of enforcement agents should be clearly defined and delineated in relation to those of the judge.

    6. Enforcement agents alleged to have abused their position should be subject to disciplinary, civil and/or criminal proceedings, providing appropriate sanctions where abuse has taken place.

    7. State-employed enforcement agents should have proper working conditions, adequate physical resources and support staff. They should also be adequately remunerated.

    8. Enforcement agents should undergo initial and ongoing training according to clearly defined and well-structured aims and objectives.

    Appendix 7
    (Item 10.1f)

    Recommendation Rec(2003)18
    of the Committee of Ministers to member states
    containing a transmission form for legal aid abroad for use under the European Agreement on the transmission of applications for legal aid (ETS No. 092) and its Additional Protocol (ETS No. 179)

    (adopted by the Committee of Ministers on 9 September 2003
    at the 851st meeting of the Ministers' Deputies)

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

    Having regard to the European Agreement on the Transmission of Applications for Legal Aid (ETS No. 92), done at Strasbourg on 27 January 1977 (hereinafter referred to as “the Agreement”);

    Conscious of the importance of ensuring effective co-operation between the Council of Europe and the European Union, in order to permit persons in an economically weak position to exercise their rights more easily throughout Europe;

    Having regard to Recommendation No. R (99) 6 on the improvement of the practical application of the European Agreement on the Transmission of Applications for Legal Aid;

    Having regard to the conclusions of the Tampere European Council of 1999;

    Having regard to Resolution No. 1 adopted by the European Ministers of Justice at their 20th conference held in Budapest in 1996, on measures to ensure the fairness and efficiency of justice and, in particular, to reduce undue delays;

    Having regard to the Council Directive 2002/8/EC of 27 January 2003 and the practical benefit for the central authorities operating under the directive and the Agreement to use the same forms,

    Recommends that governments of member states:

    a. sign and ratify the Agreement and its Additional Protocol (ETS No. 179) as soon as possible, if they have not already done so;

    b. use the form contained in Appendix I to this recommendation, together with the form contained in Appendix I of Recommendation No. R (99) 6, when transmitting an application for legal aid to a Party to the Agreement and, wherever possible, accept these forms when it receives them from another Party;

    c. complete and send the acknowledgment form contained in Appendix I to this recommendation (which replaces the acknowledgment form contained in Appendix II to Recommendation No. R (99) 6) to the transmitting authority immediately upon acknowledgment of receipt of an application;

    d. send a copy of the translation of the form contained in Appendix I to the Secretary General of the Council of Europe who will ensure that a copy is sent to all central authorities designated under the Agreement;

    Decide that this recommendation will complement Recommendation No. R (99) 6 aimed at improving the practical application of the European Agreement on the Transmission of Applications for Legal Aid.

    Appendix I to Recommendation Rec(2003)18

    FORM FOR THE TRANSMISSION OF A REQUEST FOR LEGAL AID

 

    Special reasons, if any, for requesting urgent action on this application:

    Dossier reference:

    Dossier transmitted by: Date of transmission:

    Details of the transmitting authority:

    Name of the transmitting authority:

    Member State:

    Person responsible for the dossier:

    Address:

    Telephone:

    Fax:

    Email:

    To:

    Details of the receiving authority:

    Name:

    Member State:

    Address:

    Telephone:

    Fax:

    Email:

    Details of the person or company requesting legal aid:

    Full name of person or company name:

    Name of the representative if the applicant is a minor or incapable adult:

    Name of any other representative, if the applicant is an adult and has full legal capacity (e.g. lawyer, legal representative etc)

    Address:

    Telephone:

    Fax:

    Email:

    Languages:

    Details of the procedure:

    1. Is the requester of legal aid the plaintiff or defendant?

    2. Does the requester of legal aid want this aid in order to obtain:

    a) pre-litigation advice

    b) assistance (advice and/or representation) within the framework of
    extrajudicial procedures
    c) assistance (advice and/or representation) within the framework of envisaged legal
    proceedings

    d) assistance (advice and/or representation) within the framework of ongoing legal proceedings

    If yes:

    - Registration number:

    - Dates of hearings:

    - Name of the court:

    - Address of the court:

    e) obtain advice and/or representation within the framework of legal proceedings relating to
    a decision which has already been taken by a judicial authority?

    If yes:

    - Name and address of the judicial authority:

    - Date of the decision:

    - Nature of the case:

    - Appeal against the decision
    - Enforcement of the decision

    3. Opposing party:

    4. Brief description of the nature of the case, including, as regards the circumstances mentioned in sub-paragraphs a), b) and c) of the paragraph 2, any information, which may help identifying the likely jurisdiction:

    ACKNOWLEDGEMENT OF RECEIPT

    the receiving authority:

    Name:

    Member State:

    Dossier reference:

    Date of receipt:

    Person responsible for the dossier:

    Address:

    Telephone:

    Fax:

    Email:

    If applicable, dossier transmitted to:

    Name:

    Person responsible for the dossier:

    Address:

    Telephone:

    Fax:

    Email:

    Acknowledgement of receipt of dossier transmitted by

    the transmitting authority:

    Name:

    Member State: 

    Dossier reference:

    Person responsible for the dossier:

    Date:

    Signature:

    Appendix 8
    (Item 10.2c)

    Decision No. CM/859/09092003

    Ad hoc terms of reference

    1. Name of Committee:

    Ad hoc Committee of Experts on Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR)

    2. Type of Committee:

    Ad hoc committee

    3. Source of the terms of reference:

    Committee of Ministers

    4. Terms of reference:

    Draft guidelines of good conduct for expulsion procedures in the light of Parliamentary Assembly Recommendation 1547 (2002) on expulsion procedures in conformity with human rights and enforced with respect for safety and dignity and of the Committee of Minister's reply to this Recommendation adopted at the 852nd meeting of the Ministers' Deputies.

    The draft code should in particular:

    - bring together the Council of Europe's standards and guiding principles that are applicable in the context of expulsion procedures;

    - set out a number of non-binding guidelines and identify the best possible practices in this field;

    - serve as a practical tool for use both by governments in the drafting of national laws and regulations on the subject and by all those directly or indirectly concerned with expulsion procedures.

    5. Membership of the Committee:

    The CAHAR will be assisted in the preparation of the draft code by a working party (“Working party on expulsion procedures”), composed of 10 experts as follows:

    - 6 experts appointed by the CAHAR,
    - 2 experts appointed by the CDMG,
    - 2 experts appointed by the CDDH.

    The drafting of the code will be assured in consultation with the CPT, the Commissioner for Human Rights and the Parliamentary Assembly. The working party is open to the European Commission, to observers to the CAHAR and to external experts that the Working Party may wish to associate with its work.

    6. Working structures and methods:

    Meetings of the working party (3 or 4) and work by a consultant as identified by the Secretariat.

    7. Financing:
    The expenses for participation in the meetings of the working party will be undertaken by the relevant committees. With regard to the CAHAR, the financing of the activities of the working party for 2003 require the reallocation of resources originally earmarked for other activities, which will consequently be delayed. Subject to the adoption of the budget for 2004, the financing of the activities of the working party in 2004 is assured.

    8. Duration:

    31 December 2004.

    9. Committee(s) to be notified of the terms of reference for information

    CDDH, CDMG, CPT.

Note ( There was no decision under this item.

    1 Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Luxembourg, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland, “the former Yugoslav Republic of Macedonia”, Turkey.



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