Ministers’ Deputies
Decisions

CM/Del/Dec(2010)1081 6 April 2010
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1081st meeting, 31 March 2010

Decisions adopted

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Page

CONTENTS

List of those present 6

Introduction 9

1. General questions

1.1 Adoption of the agenda 9

1.2 Preparation of forthcoming meetings+

1.3 Dialogue with the Secretary General and the Deputy Secretary General +

1.4 Report of the Bureau 9

1.5 120th Session of the Committee of Ministers (Strasbourg, 11 May 2010) – Preparation 9

1.6 Secretary General of the Parliamentary Assembly – Procedure for election 10

2. Democracy and political questions

2.1 The Council of Europe and the conflict in Georgia +

2.1bis Current political questions
a. Activities for the development and consolidation of democratic stability 10
b. Other questions +

2.2 Situation in Cyprus +

3. Parliamentary Assembly

3.1 Written Questions by members of the Parliamentary Assembly to the Committee of Ministers
a. Written Question No. 584 by Mr McIntosh: “Implementation of the European Convention on Transfrontier Television” 10

4. Human rights

4.1 European Social Charter
a. Collective complaint No. 41/2007 by the Mental Disability Advocacy Centre (MDAC)
against Bulgaria 11
b. Collective complaint No. 46/2007 by the European Roma Rights Centre (ERRC)
against Bulgaria 11
c. Collective complaint No. 48/2008 by the European Roma Rights Centre (ERRC)
against Bulgaria 11

4.2 “The protection of human rights in emergency situations” –
Parliamentary Assembly Recommendation 1865 (2009) 12

4.3 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) – Election of members of the CPT in respect of Croatia and France 12

4.4 “The situation of human rights defenders in Council of Europe member states” –
Parliamentary Assembly Recommendation 1866 (2009) 12

Page

4.5 European Social Charter – Governmental Committee of the European Social Charter
a. Abridged report concerning Conclusions XIX-1 (2008) of the European Social Charter 13
b. Abridged report concerning Conclusions 2008 of the European Social Charter (revised) 13

4.6 “Action to combat gender-based human rights violations, including abduction of women and
girls” – Parliamentary Assembly Recommendation 1868 (2009), and “The urgent need to combat so-called “honour crimes”” – Parliamentary Assembly Recommendation 1881 (2009) 14

4.7 Steering Committee for Human Rights (CDDH) –
Draft Recommendation CM/Rec(2010)… of the Committee of Ministers to member states on measures to combat discrimination on grounds of sexual orientation or gender identity and its
draft Explanatory Memorandum 14

5. Media

5.1 “The regulation of audiovisual media services” –
Parliamentary Assembly Recommendation 1855 (2009) 14

6. Social cohesion

6.1 “Europe’s “boat-people”: mixed migration flows by sea into southern Europe” –
Parliamentary Assembly Recommendation 1850 (2008) 15

6.2 European Health Committee (CDSP) –
Draft Recommendation CM/Rec(2010)… of the Committee of Ministers to member states on
good governance in health care systems and its draft Explanatory Report 15

11. Administration and logistics

11.1 Co-ordinating Committee on Remuneration (CCR) –
Co-ordination: 2009 activity report (Report by the Chairman, Mr Hans Stefan Kruse) 15

11.2 Measures for early termination of service 16

12. Congress of Local and Regional Authorities of the Council of Europe

12.1 Congress of Local and Regional Authorities of the Council of Europe
a. Communication by the Secretary General ad interim of the Congress on the results of the
18th Plenary Session (Strasbourg, 17-19 March 2010)+
b. 18th Plenary Session of the Congress (Strasbourg, 17-19 March 2010) – Adopted texts 16

APPENDICES

APPENDIX 1 1081st meeting of the Ministers' Deputies
(item 1.1) (Strasbourg, 31 (10 a.m.) March 2010)
Agenda 19

APPENDIX 2 Resolution CM/ResChS(2010)1
(item 4.1b) Collective complaint No. 46/2007
by the European Roma Rights Centre (ERRC) against Bulgaria 23

Page

APPENDIX 3 Resolution CM/ResChS(2010)2
(item 4.1c) Collective complaint No. 48/2008
by the European Roma Rights Centre (ERRC) against Bulgaria 25

APPENDIX 4 Reply to Parliamentary Assembly Recommendation 1865 (2009) on
(item 4.2) “The protection of human rights in emergency situations” 27

APPENDIX 5 Resolution CM/ResCPT(2010)1
(item 4.3) Election of members of the European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment (CPT)
in respect of Croatia and France 30

APPENDIX 6 Reply to Parliamentary Assembly Recommendation 1866 (2009) on
(item 4.4) “The situation of human rights defenders in Council of Europe member states” 31

APPENDIX 7 Resolution CM/ResChS(2010)3
(item 4.5a) on the implementation of the European Social Charter during the period
2005-2006 (Conclusions XIX-1 (2008), provisions related to employment,
training and equal opportunities) 34

APPENDIX 8 Resolution CM/ResChS(2010)4
(item 4.5b) on the implementation of the European Social Charter (revised) during
the period 2005-2006 (Conclusions 2008, provisions related to employment,
training and equal opportunities) 35

APPENDIX 9 Joint reply to Parliamentary Assembly Recommendation 1868 (2009) on
(item 4.6) “Action to combat gender-based human rights violations, including abduction
of women and girls”
and to Parliamentary Assembly Recommendation 1881 (2009) on
“The urgent need to combat so-called “honour crimes”” 36

APPENDIX 10 Recommendation CM/Rec(2010)5
(item 4.7) of the Committee of Ministers to member states
on measures to combat discrimination on grounds of sexual orientation or
gender identity 42

APPENDIX 11 Reply to Parliamentary Assembly Recommendation 1855 (2009) on
(item 5.1) “The regulation of audiovisual media services” 49

APPENDIX 12 Reply to Parliamentary Assembly Recommendation 1850 (2008) on
(item 6.1) “Europe’s “boat-people”: mixed migration flows by sea into southern Europe” 55

APPENDIX 13 Recommendation CM/Rec(2010)6
(item 6.2) of the Committee of Ministers to member states
on good governance in health systems 58

The 1081st meeting of the Ministers’ Deputies opened on 31 March 2010 at 10.00 a.m. under the chairmanship of Mr P. Widmer, Deputy for the Minister for Foreign Affairs of Switzerland.

PRESENT

ALBANIA
Ms M. Gega
Mr F. Peni
Ms A. Doko

ANDORRA
Ms F. Aleix

ARMENIA
Mr Z. Mnatsakanian
Mr S. Kartashyan
Mr A. Hovhannisyan
Ms I. Beglaryan

AUSTRIA
Mr T. Hajnoczi

AZERBAIJAN
Mr A. Mammadov
Mr M. Kangarlinski
Mr J. Musayev

BELGIUM
Ms M. Janssens

BOSNIA AND HERZEGOVINA
Mr Z. Martinović
Ms M. Muharemagić

BULGARIA
Mr A. Tehov
Mr A. Ananiev
Mr A. Krestev
Ms Y. Parparova
Mr M. Bozhkov

CROATIA
Ms A. Djamić
Ms L. Glavaš Kovačić
Mrs P. Leppee Fraize

CYPRUS
Mr E. Evriviades
Mr Y. Michaelides
Mr S. Hatziyiannis

CZECH REPUBLIC
Mr M. Bouček
Ms K. Markovová

DENMARK
Mr H. Svoldgaard

ESTONIA
Mr S. Kannike
Ms K. Tikenberg
Mr E. Harremoes

FINLAND
Ms I. Ertman
Ms A.-C. Krank
Mr P. Kotilainen

FRANCE
Mr P. Ray
Ms M. Bilocq
Ms C. Larene

GEORGIA
Mr Z. Tchiaberashvili
Mr M. Jgenti
Ms I. Mamuchishvili

GERMANY
Mr H.-D. Heumann
Mr H. Haupt
Ms C. Althauser
Mr J. Holzenberger

GREECE
Mr D. Karabalis
Mr G. Daskalopoulos
Ms I. Petropoulou

HUNGARY
Ms J. József
Mr V. Garai
Mr B. Horváth

ICELAND
Ms P.M. Rúnarsdóttir
Mr J.L. Logason

IRELAND
Ms M. Connery
Ms B. Walshe
Ms C. Donnellan

ITALY
Mr S. Busetto
Ms D. D'Orlandi

LATVIA
Ms A. Liepina

LIECHTENSTEIN
Mr D. Ospelt

LITHUANIA
Mr D. Simaitis

LUXEMBOURG
Mr R. Mayer
Ms A. Kayser-Attuil

MALTA
Mr M. Pace

MOLDOVA
Ms V. Agrici
Mr D. Vataman
Mr A. Paladuta

MONACO
Mrs C. Gastaud

MONTENEGRO
Mr Z. Janković

NETHERLANDS
Mr J. van der Velden
Mr M. van der Kolk
Mr J. Rademaker

NORWAY
Ms E. Widsteen

POLAND
Mr P. Świtalski
Ms A. Wyżnikiewicz
Ms E. Suchożebrska

PORTUGAL
Mr L. Sequeira

ROMANIA
Mr S. Stoian
Ms O. Rogoveanu
Mr L. Flueraru

RUSSIAN FEDERATION
Mr A. Alekseev
Mr I. Kapyrin
Mr V. Egorov
Mr I. Podolskiy
Mr V. Ermakov
Mr V. Kashin-Padun
Mr I. Maltsev
Mr I. Subbotin
Mr I. Zakharov
Ms M. Kostyanaya
Mr K. Kosorukov

SAN MARINO
-
SERBIA
Ms D. Filipovic
Ms V. Radonjic-Rakic
Mr A. Tomic

SLOVAK REPUBLIC
Mr E. Kuchár
Mr J. Kubla
Ms S. Danová

SLOVENIA
Mr J. Brenčič
Ms N. Hojnik

SPAIN
Mr P. Jiménez Nacher
Mr P. Desportes

SWEDEN
Mr P. Sjögren
Ms A. Lundkvist
Ms F. Tamas-Hermelin

SWITZERLAND
Mr P. Widmer, Chairman
Mr M. Wey
Ms B. Schaer
Ms S. Trautweiler-Heizmann

“THE FORMER
YUGOSLAV REPUBLIC
OF MACEDONIA”
Mr V. Ristovski, Vice-Chairman
Ms E. Ilieva

TURKEY
Mr H. Ulusoy
Mr B. Ulusoy
Mr U. Acar
Mr T. Oba
Mr Ü. Öktem
Ms B. Kabakçi
Mr T. Ok
Mr Y. Yeşilada

UKRAINE
Ms N. Shakuro

UNITED KINGDOM
Ms E. Fuller
Ms A. Sharif
Ms P. Gordon

*

* *

EUROPEAN UNION
Ms L. Pavan-Woolfe

*

* *

CANADA
-

JAPAN
Mr H. Karube

MEXICO
Ms L. Madero

UNITED STATES OF AMERICA
Mr V. Carver

HOLY SEE
Mgr A. Giordano

Introduction

At the start of the meeting, the Chairman welcomed Ms Barbara SUŠNIK, Deputy Permanent Representative of Slovenia, and Mr Jóhann Levi LOGASON, Deputy to the Permanent Representative of Iceland. He wished them a successful mission within the Committee. He then bade farewell to Mr Redjep SALIU, Deputy Permanent Representative of “the former Yugoslav Republic of Macedonia”, Ms Pálína RÚNARSDÓTTIR, Deputy to the Permanent Representative of Iceland, and Mr Jakob BRENČIČ, Deputy to the Permanent Representative of Slovenia, and thanked them for their contribution to the work of the Committee.

Item 1.1

Adoption of the agenda

Decisions

The Deputies

1. agreed to add the following sub-items to the agenda of their 1081st meeting:

 

2.1bis

Current political questions
b. Other questions
- Statement by the Representative of Croatia
- Statement by the Representative of Serbia
- Statement by the Representative of the Russian Federation

2. taking into account the decision above, adopted the agenda of their 1081st meeting, as it appears at Appendix 1 to the present volume of Decisions.

Item 1.4

Report of the Bureau
(CM/Bur/Del(2010)9)

Decision

The Deputies took note of the report of the meeting of the Bureau of 29 March 2010 (document CM/Bur/Del(2010)9) and approved the other recommendations contained therein.

Item 1.5

120th Session of the Committee of Ministers (Strasbourg, 11 May 2010) – Preparation
(CM(2008)34, CM/Del/Dec(2010)1080/1.5)

Decisions

The Deputies

1. decided that the following current political topic will be included on the draft agenda of the Session:

- The strategic role and responsibility of the Council of Europe: Bosnia and Herzegovina;

2. agreed to resume consideration of the preparation of the 120th Session at their next meeting.

Item 1.6

Secretary General of the Parliamentary Assembly –
Procedure for election
(Regulations relating to the appointment of the Secretary General, Deputy Secretary General and Secretary General of the Assembly having the rank of Deputy Secretary General, DD(2010)78)

Decision

The Deputies approved the following timetable concerning the procedure for the election of the Secretary General of the Parliamentary Assembly:

21 May 2010: closing date for the submission of candidates;

9 June 2010 (1087th meeting of the Ministers’ Deputies): preliminary examination of candidatures by the Deputies;

24 June 2010: consultation with the Parliamentary Assembly in the Joint Committee;3

7 July 2010 (1090th meeting of the Ministers’ Deputies): adoption of a resolution containing the list of the names of the candidates or name of one candidate;4

4-8 October 2010 (4th part-session of the Parliamentary Assembly): election.

Item 2.1bis

Current political questions

a. Activities for the development and consolidation of democratic stability
(GR-DEM(2010)CB4)

Decision

The Deputies took note of the synopsis of the GR-DEM meeting held on 25 March 2010 (document GR-DEM(2010)CB4).

Item 3.1a

Written Questions by members of the Parliamentary Assembly to the Committee of Ministers

a. Written Question No. 584 by Mr McIntosh: “Implementation of the European Convention on Transfrontier Television”
(CM/AS(2010)Quest584)

Decisions

The Deputies

1. instructed the Secretariat to prepare a draft reply to Written Question No. 584 in light of the views expressed at the present meeting;

2. agreed to resume consideration of this question at one of their forthcoming meetings.

Item 4.1a

European Social Charter

a. Collective complaint No. 41/2007 by the Mental Disability Advocacy Centre (MDAC) against Bulgaria

This item was postponed.

Item 4.1b

European Social Charter

b. Collective complaint No. 46/2007 by the European Roma Rights Centre (ERRC) against Bulgaria
(CM/Del/Dec(2009)1068/4.1a and Report from the European Committee of Social Rights to the Committee of Ministers)

Decision

In conformity with Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints, the Deputies, in their composition restricted to the representatives of the Contracting Parties to the European Social Charter or to the Revised European Social Charter in the Committee of Ministers,5 adopted Resolution CM/ResChS(2010)1, as it appears at Appendix 2 to the present volume of Decisions.

Item 4.1c

European Social Charter

c. Collective complaint No. 48/2008 by the European Roma Rights Centre (ERRC) against Bulgaria
(CM/Del/Dec(2009)1068/4.1b and Report from the European Committee of Social Rights to the Committee of Ministers)

Decision

In conformity with Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints, the Deputies, in their composition restricted to the representatives of the Contracting Parties to the European Social Charter or to the Revised European Social Charter in the Committee of Ministers,1 adopted Resolution CM/ResChS(2010)2, as it appears at Appendix 3 to the present volume of Decisions.

Item 4.2

“The protection of human rights in emergency situations” –
Parliamentary Assembly Recommendation 1865 (2009)
(Parliamentary Assembly REC_1865 (2009) and CM/AS(2010)Rec1865 prov)

Decision

The Deputies adopted the reply to Parliamentary Assembly Recommendation 1865 (2009) on “The protection of human rights in emergency situations”, as it appears at Appendix 4 to the present volume of Decisions.6

Item 4.3

European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) –
Election of members of the CPT in respect of Croatia and France
(CM(2010)20, AS/Bur(2009)99, AS/Bur(2009)92)

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 decisions taken at their 784th, 874th, 888th, 930th, 969th and 998th meetings 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 31 March 2010, for a term of office which will expire on 19 December 2013:

- Ms Marija DEFINIS-GOJANOVIĆ (in respect of Croatia);

2. declared the following candidate re-elected as member of the CPT, with effect from 31 March 2010, for a term of office which will expire on 19 December 2013:

- Mr Xavier RONSIN (in respect of France);

3. adopted accordingly Resolution CM/ResCPT(2010)1, as it appears at Appendix 5 to the present volume of Decisions.

Item 4.4

“The situation of human rights defenders in Council of Europe member states” –
Parliamentary Assembly Recommendation 1866 (2009)
(Parliamentary Assembly REC_1866 (2009), CM/AS(2010)Rec1866 prov2)

Decision

The Deputies adopted the reply to Parliamentary Assembly Recommendation 1866 (2009) on “The situation of human rights defenders in Council of Europe member states”, as it appears at Appendix 6 to the present volume of Decisions.7

Item 4.5a

European Social Charter – Governmental Committee of the European Social Charter

a. Abridged report concerning Conclusions XIX-1 (2008) of the European Social Charter
(CM(2010)23)

Decision

In accordance with Article 29 of the European Social Charter and the decision adopted by the Committee of Ministers at the 541st meeting of the Ministers’ Deputies (June 1995, item 4.6), the Deputies, in their composition restricted to the representatives of the Contracting Parties to the European Social Charter or to the Revised Charter in the Committee of Ministers,8 on the basis of the abridged report of the Governmental Committee of the European Social Charter concerning Conclusions XIX-1 (2008) (CM(2010)23), adopted Resolution CM/ResChS(2010)3 on the application of the European Social Charter during the period 2005-2006 (Conclusions XIX-1 (2008), provisions related to employment, training and equal opportunities), as it appears at Appendix 7 to the present volume of Decisions.

Item 4.5b

European Social Charter – Governmental Committee of the European Social Charter

b. Abridged report concerning Conclusions 2008 of the European Social Charter (revised)
(CM(2010)24)

Decision

In accordance with Article 29 of the European Social Charter and the decision adopted by the Committee of Ministers at the 541st meeting of the Ministers’ Deputies (June 1995, item 4.6), the Deputies, in their composition restricted to the representatives of the Contracting Parties to the European Social Charter or to the Revised Charter in the Committee of Ministers,1 on the basis of the abridged report of the Governmental Committee concerning Conclusions 2008 of the European Social Charter (revised) (CM(2010)24), adopted Resolution CM/ResChS(2010)4 on the application of the European Social Charter (revised) during the period 2005-2006 (Conclusions 2008, provisions related to employment, training and equal opportunities), as it appears at Appendix 8 to the present volume of Decisions.

Item 4.6

“Action to combat gender-based human rights violations, including abduction of women and girls” –
Parliamentary Assembly Recommendation 1868 (2009) and
“The urgent need to combat so-called “honour crimes”” – Parliamentary Assembly Recommendation 1881 (2009)
(Parliamentary Assembly REC_1868 (2009) and REC_1881 (2009), CM/AS(2010)Rec1868-1881 prov2)

Decision

The Deputies adopted the joint reply to Parliamentary Assembly Recommendations 1868 (2009) and 1881 (2009) on “Action to combat gender-based human rights violations, including abduction of women and girls” and “The urgent need to combat so-called “honour crimes””, as it appears at Appendix 9 to the present volume of Decisions.9

Item 4.7

Committee for Human Rights (CDDH) –
Draft Recommendation CM/Rec(2010)… of the Committee of Ministers to member states on measures to combat discrimination on grounds of sexual orientation or gender identity and its draft Explanatory Memorandum
(DD(2010)160 and CM(2010)4 add3rev2)

Decision

The Deputies adopted Recommendation CM/Rec(2010)5 of the Committee of Ministers to member states on measures to combat discrimination on grounds of sexual orientation or gender identity, as it appears at Appendix 10 to the present volume of Decisions, took note of its Explanatory Memorandum (document CM(2010)4 add3rev2) and agreed to examine the implementation of the recommendation three years after its adoption.

Item 5.1

“The regulation of audiovisual media services” –
Parliamentary Assembly Recommendation 1855 (2009)
(Parliamentary Assembly REC_1855 (2009) and CM/AS(2010)Rec1855 prov2)

Decision

The Deputies adopted the reply to Parliamentary Assembly Recommendation 1855 (2009) on “The regulation of audiovisual media services”, as it appears at Appendix 11 to the present volume of Decisions.10

Item 6.1

“Europe’s “boat-people”: mixed migration flows by sea into southern Europe” –
Parliamentary Assembly Recommendation 1850 (2008)
(Parliamentary Assembly REC_1850 (2008), CM/AS(2010)Rec1850 prov4, GR-SOC(2010)CB2 and GR-H(2010)CB3)

Decision

The Deputies adopted the reply to Parliamentary Assembly Recommendation 1850 (2008) on “Europe’s “boat-people”: mixed migration flows by sea into southern Europe”, as it appears at Appendix 12 to the present volume of Decisions.11

Item 6.2

European Health Committee (CDSP) –
Draft Recommendation CM/Rec(2010)… of the Committee of Ministers to member states on good governance in health care systems and its draft Explanatory Report
(CM(2010)14, CM(2010)14 add, DD(2010)121 and DD(2010)122)

Decision

The Deputies adopted Recommendation CM/Rec(2010)6 of the Committee of Ministers to member states on good governance in health care systems, as it appears at Appendix 13 to the present volume of Decisions, and took note of its Explanatory Report, as it appears in document CM(2010)14 add.

Item 11.1

Co-ordinating Committee on Remuneration (CCR) –
Co-ordination: 2009 activity report (Report by the Chairman, Mr Hans Stefan Kruse)

(CM(2010)6)

Decisions

The Deputies

1. took note of the 2009 activity report of the Co-ordinating Committee on Remuneration (CCR), as it appears in document CM(2010)6;

2. asked the CCR to complete the reform of the remuneration adjustment method as soon as possible with the aim of applying it from 1 January 2012 at the latest;

3. encouraged the CCR to simplify the method considering the proposals on its table;

4. invited the CCR to elaborate an affordability clause, common to all the co-ordinated organisations, specifying that the governing body of each organisation may decide not to apply the CCR’s recommendations if the organisation’s budgetary situation or economic difficulties experienced by the member states so justify;

5. invited the Secretary General of the Council of Europe to defend the above position, as expressed by member states, in the Committee of Representatives of the Secretaries/Directors-General.

Item 11.2

Measures for early termination of service
(DD(2010)171, DD(2010)183)

Decisions

The Deputies

1. authorised the Secretary General to finance measures for early termination of service of permanent staff by way of an internal loan of a maximum of €2 424 000 funded from cash surpluses, to be reimbursed over a five-year period from 2011 to 2015 in instalments not exceeding €484 800 each;

2. invited the Secretary General to consider ways and means of increasing the appropriations available for this purpose.

Item 12.1b

Congress of Local and Regional Authorities of the Council of Europe

b. 18th Plenary Session of the Congress (Strasbourg, 17-19 March 2010) – Texts adopted
(Compendium of adopted texts)

Decisions

The Deputies

Concerning Recommendation 280 (2010) – “The role of local and regional authorities in the implementation of human rights”

1. took note of Recommendation 280 (2010);

2. agreed to bring it to the attention of their governments;

3. agreed to forward it to the European Committee on Local and Regional Democracy (CDLR), the Steering Committee for Education (CDED) and the Steering Committee for Human Rights (CDDH) for information and possible comments before 30 June 2010;

4. invited their Rapporteur Group on Human Rights (GR-H) to prepare a draft reply for adoption at one of their forthcoming meetings;

Concerning Recommendation 281 (2010) – “After Copenhagen, cities and regions take up the challenge”

5. took note of Recommendation 281 (2010);

6. agreed to bring it to the attention of their governments;

7. agreed to forward it to the European Union and the Parliamentary Assembly for information;

8. agreed to forward it to the European Committee on Local and Regional Democracy (CDLR) for information and possible comments before 30 June 2010;

9. invited their Rapporteur Group on Education, Culture, Sport, Youth and Environment (GR-C) to prepare a draft reply for adoption at one of their forthcoming meetings;

Concerning Recommendation 282 (2010) – “Follow-up by the Congress of the Conference of Ministers
responsible for Local and Regional Government (Utrecht, Netherlands, 16-17 November 2009)”

10. took note of Recommendation 282 (2010);

11. agreed to bring it to the attention of their governments;

12. agreed to forward it to the European Committee on Local and Regional Democracy (CDLR) for information and possible comments before 30 June 2010;

13. invited their Rapporteur Group on Democracy (GR-DEM) to prepare a draft reply for adoption at one of their forthcoming meetings;

Concerning Recommendation 283 (2010) – “Local democracy in Iceland”

14. took note of Recommendation 283 (2010);

15. agreed to bring it to the attention of their governments and in particular of the authorities of Iceland;

Concerning Recommendation 284 (2010) – “Municipal elections in Azerbaijan (23 December 2009)”

16. took note of Recommendation 284 (2010);

17. took note of the statement of the delegation of Azerbaijan thereon;

18. agreed to bring it to the attention of their governments and in particular of the authorities of Azerbaijan;

Concerning Recommendation 285 (2010) – “Regional democracy in Switzerland”

19. took note of Recommendation 285 (2010);

20. agreed to bring it to the attention of their governments and in particular of the authorities of Switzerland;

Concerning Recommendation 286 (2010) – “Minority languages – an asset for regional development”

21. took note of Recommendation 286 (2010);

22. agreed to bring it to the attention of their governments;

23. agreed to forward it to agreed to forward it to the European Committee on Local and Regional Democracy (CDLR), the Advisory Committee of the Framework Convention for the Protection of National Minorities and the Committee of Experts of the European Charter for Regional or Minority Languages for information and possible comments before 30 June 2010;

24. invited their Rapporteur Group on Legal Co-operation (GR-J) to prepare a draft reply for adoption at one of their forthcoming meetings;

Concerning Recommendation 287 (2010) – “Intra-regional transport: a challenge for sustainable development and regional cohesion”

25. took note of Recommendation 287 (2010);

26. agreed to bring it to the attention of their governments;

27. agreed to forward it to the European Union and the Parliamentary Assembly for information;

28. agreed to forward it to the European Committee on Local and Regional Democracy (CDLR) and the Council of Europe Conference of Ministers responsible for Spatial/Regional Planning (CEMAT) for information and possible comments before 30 June 2010;

29. invited their Rapporteur Group on Education, Culture, Sport, Youth and Environment (GR-C) to prepare a draft reply for adoption at one of their forthcoming meetings;

Concerning Recommendation 288 (2010) – “Achieving sustainable gender equality in local and regional political life”

30. took note of Recommendation 288 (2010);

31. agreed to bring it to the attention of their governments;

32. agreed to forward it to Council of Europe Development Bank for information;

33. agreed to forward it to the European Committee on Local and Regional Democracy (CDLR) and the Steering Committee for Equality between Women and Men (CDEG) for information and possible comments before 30 June 2010;

34. invited their Thematic Co-ordinator on Equality between Women and Men (TC-ET), in co-operation with their Rapporteur Group on Legal Co-operation (GR-J), to prepare a draft reply for adoption at one of their forthcoming meetings;

Concerning Resolutions 295 to 303 (2010)

35. took note of Resolutions 295 to 303 (2010);

36. adopted the following reply to the texts adopted by the Congress of Local and Regional Authorities of the Council of Europe at its 18th Plenary Session (Strasbourg, 17-19 March 2010):

    “The Committee of Ministers has taken note of Recommendations 280 to 288 (2010) and Resolutions 295 to 303 (2010) adopted by the Congress of Local and Regional Authorities of the Council of Europe at its 18th Plenary Session (Strasbourg, 17-19 March 2010) and has brought Recommendations 280 to 288 (2010) to the attention of the governments of member states.

    The Committee of Ministers has forwarded the recommendations to the competent intergovernmental committees and Council of Europe bodies for information and comments, as appropriate.

    The Committee of Ministers has forwarded Recommendations 281 and 287 (2010) to the European Union for information.

    Finally, the Committee of Ministers has entrusted Recommendations 280, 281, 282, 286, 287 and 288 (2010) to its relevant Rapporteur Groups and Thematic Co-ordinator to prepare draft replies for adoption at one of its forthcoming meetings.”

Appendix 1
(Item 1.1)

1081 Meeting of the Ministers' Deputies
(Strasbourg, 31 (10 a.m.) March 2010)


Agenda

1. General questions

1.1 Adoption of the agenda

      (CM/Del/OJ(2010)1081)

1.2 Preparation of forthcoming meetings

1.3 Dialogue with the Secretary General and the Deputy Secretary General

1.4 Report of the Bureau

      (CM/Bur/Del(2010)9)

1.5 120th Session of the Committee of Ministers (Strasbourg, 11 May 2010) – Preparation

      (CM/Del/Dec(2010)1080/1.5 and CM(2008)34)
      (CM/Notes/1081/1.5 of 30.3.2010)

1.6 Secretary General of the Parliamentary Assembly – Procedure for election

      (DD(2010)78)
      (CM/Notes/1081/1.6 of 22.2.2010)

2. Democracy and political questions

2.1 The Council of Europe and the conflict in Georgia

      (CM(2008)150 rev, CM(2008)162, SG/Inf(2008)19, DD(2008)631, SG/Inf(2009)5, SG/Inf(2009)7, CM(2009)PV prov, CM(2009)PV add1, CM(2009)PV add2, SG/Inf(2009)10, SG/Inf(2009)5 add, SG/Inf(2009)9, CM/AS(2009)Quest572, DD(2009)447, SG/Inf(2009)15 fin, SG/Inf(2009)5 add2, Parliamentary Assembly REC_1846 (2008) and CM/AS(2009)Rec1846 fin, Parliamentary Assembly REC_1857 (2009) and CM/AS(2009)Rec1857 fin, CM(2009)164, Parliamentary Assembly
      REC_1869 (2009) and CM/AS(2010)Rec1869 fin, DD(2010)71, DD(2010)95 and SG/Inf(2010)7)

2.1bis Current political questions

a. Activities for the development and consolidation of democratic stability
(Item prepared by the GR-DEM on 25.3.2010)

      (GR-DEM(2010)CB4)
      (CM/Notes/1081/2.1bis of 26.3.2010)

b. Other questions
- Statement by the Representative of Croatia
- Statement by the Representative of Serbia
- Statement by the Representative of the Russian Federation

2.2 Situation in Cyprus

3. Parliamentary Assembly

3.1 Written Questions by members of the Parliamentary Assembly to the Committee of Ministers

a. Written Question No. 584 by Mr McIntosh: “Implementation of the European Convention on Transfrontier Television”

      (CM/AS(2010)Quest584)
      (CM/Notes/1081/3.1a of 12.3.2010)

4. Human rights

4.1 European Social Charter

a. Collective complaint No. 41/2007 by the Mental Disability Advocacy Centre (MDAC) against Bulgaria

(Sub-item postponed)

b. Collective complaint No. 46/2007 by the European Roma Rights Centre (ERRC) against Bulgaria

      (CM/Del/Dec(2009)1068/4.1a and Report from the European Committee of Social Rights to the Committee of Ministers)
      (CM/Notes/1081/4.1b of 19.3.2010)

c. Collective complaint No. 48/2008 by the European Roma Rights Centre (ERRC) against Bulgaria

      (CM/Del/Dec(2009)1068/4.1b and Report from the European Committee of Social Rights to the Committee of Ministers)
      (CM/Notes/1081/4.1c of 19.3.2010 and CM/Notes/1081/4.1c add of 26.3.2010)

4.2 “The protection of human rights in emergency situations” –
Parliamentary Assembly Recommendation 1865 (2009)
(Item prepared by the GR-H on 23.3.2010)

      (Parliamentary Assembly REC_1865 (2009) and CM/AS(2010)Rec1865 prov)
      (CM/Notes/1081/4.2 of 24.3.2010)

4.3 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) – Election of members of the CPT in respect of Croatia and France
(Item prepared by the GR-H on 23.3.2010)

      (CM(2010)20, AS/Bur(2009)99 and AS/Bur(2009)92)
      (CM/Notes/1081/4.3 of 24.3.2010)

4.4 “The situation of human rights defenders in Council of Europe member states” –
Parliamentary Assembly Recommendation 1866 (2009)
(Item prepared by the GR-H on 23.3.2010)

      (Parliamentary Assembly REC_1866 (2009) and CM/AS(2010)Rec1866 prov2)
      (CM/Notes/1081/4.4 of 24.3.2010)

4.5 European Social Charter – Governmental Committee of the European Social Charter

a. Abridged report concerning Conclusions XIX-1 (2008) of the European Social Charter

      (CM(2010)23)

b. Abridged report concerning Conclusions 2008 of the European Social Charter (revised)

      (CM(2010)24)

(Item prepared by the GR-H on 23.3.2010)

      (CM/Notes/1081/4.5 of 23.3.2010)

4.6 “Action to combat gender-based human rights violations, including abduction of women and girls” –
Parliamentary Assembly Recommendation 1868 (2009), and
“The urgent need to combat so-called “honour crimes”” –
Parliamentary Assembly Recommendation 1881 (2009)
(Item prepared by the TC-ET, in co-operation with the GR-H on 23.3.2010)

      (Parliamentary Assembly Recommendation REC_1868 (2009), Parliamentary Assembly
      REC_1881 (2009) and CM/AS(2010)Rec1868-1881 prov2)
      (CM/Notes/1081/4.6 of 24.3.2010)

4.7 Steering Committee for Human Rights (CDDH) –
Draft Recommendation CM/Rec(2010)… of the Committee of Ministers to member states on measures to combat discrimination on grounds of sexual orientation or gender identity and its
draft Explanatory Memorandum
(Item prepared by the GR-H on 23.3.2010)

      (CM/Del/Dec(2010)1080/1.1, CM(2010)4 add3rev2 and DD(2010)160)
      (CM/Notes/1081/4.7 of 30.3.2010)

5. Media

5.1 “The regulation of audiovisual media services” –
Parliamentary Assembly Recommendation 1855 (2009)
(Item prepared by the GR-H on 23.3.2010)

      (Parliamentary Assembly REC_1855 (2009) and CM/AS(2010)Rec1855 prov2)
      (CM/Notes/1081/5.1 of 24.3.2010)

6. Social cohesion

6.1 “Europe’s “boat-people”: mixed migration flows by sea into southern Europe” –
Parliamentary Assembly Recommendation 1850 (2008)
(Item prepared by the GR-SOC on 23.2.2010 and by the GR-H on 23.3.2010)

      (Parliamentary Assembly REC_1850 (2008) and CM/AS(2010)Rec1850 prov4)
      (CM/Notes/1081/6.1 of 25.3.2010)

6.2 European Health Committee (CDSP) –
Draft Recommendation CM/Rec(2010)… of the Committee of Ministers to member states on good governance in health care systems and its draft Explanatory Report
(Item prepared by the GR-SOC on 23.2.2010)

      (CM(2010)14, CM(2010)14 add, DD(2010)121 and DD(2010)122)
      (CM/Notes/1081/6.2 of 19.3.2010)

11. Administration and logistics

11.1 Co-ordinating Committee on Remuneration (CCR) –
Co-ordination: 2009 activity report (Report by the Chairman, Mr Hans Stefan Kruse)
(Item prepared by the GR-PBA on 9.3.2010 and 25-26.3.2010)

      (CM(2010)6)
      (CM/Notes/1081/11.1 of 29.3.2010)

11.2 Measures for early termination of service
(Item prepared by the GR-PBA on 26.3.2010)

      (DD(2010)171 and DD(2010)183)
      (CM/Notes/1081/11.2 of 29.3.2010)

12. Congress of Local and Regional Authorities of the Council of Europe

12.1 Congress of Local and Regional Authorities of the Council of Europe

a. Communication by the Secretary General ad interim of the Congress on the results of the 18th Plenary Session (Strasbourg, 17-19 March 2010)

b. 18th Plenary Session of the Congress (Strasbourg, 17-19 March 2010) – Adopted texts

      (Compendium of adopted texts)
      (CM/Notes/1081/12.1 of 26.3.2010)

13. Any other business

Appendix 2
(Item 4.1b)

Resolution CM/ResChS(2010)1
Collective complaint No. 46/2007
by the European Roma Rights Centre (ERRC) against Bulgaria

(Adopted by the Committee of Ministers on 31 March 2010
at the 1081st meeting of the Ministers’ Deputies)

The Committee of Ministers,12

Having regard to Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints;

Taking into consideration the complaint lodged on 23 October 2007 by the European Roma Rights Centre against Bulgaria;

Having regard to the report transmitted by the European Committee of Social Rights, in which the situation in Bulgaria as regards access to health care by Roma, as well as medical assistance in general for poor or socially vulnerable persons, is found to constitute a violation of Article 11§§1-3 and Article 13§1 of the Revised Charter for the following reasons:

“With respect to Article 11 of the Revised Charter, the Committee recalls that it imposes a range of positive obligations to ensure an effective exercise of the right to health. Assessment of compliance with this provision is carried out paying particular attention to the situation of disadvantaged and vulnerable groups. There is sufficient evidence showing that Roma communities are faced with disproportionate health risks and that they do not live in healthy environments. This situation can in part be attributed to the failure of prevention policies by the state – for instance the lack of protective measures to guarantee clean water in Romani neighbourhoods – as well as the inadequacy of measures to ensure public health standards in housing in such neighbourhoods. As regards health education, despite recent initiatives such as the establishment of health mediators, there has been a lack of systematic, long-term government measures to promote health awareness among the Roma population. The health status of Roma being inferior to that of the general population, the authorities have also failed to take reasonable steps to address the specific problems faced by Roma communities stemming from their often unhealthy living conditions and difficult access to health services. In sum, the failure of the authorities to take appropriate measures to address the exclusion, marginalisation and environmental hazards which Romani communities are exposed to in Bulgaria, as well as the problems encountered by many Roma in accessing health care services, constitute a breach of Article 11 in conjunction with Article E (Non-discrimination).

Pursuant to Article 13§1 of the Revised Charter, persons without adequate resources, in the event of sickness, should be granted financial assistance for the purpose of obtaining medical care or provided with such care free of charge. The situation in Bulgaria partly complies with this requirement because the Health Insurance Act establishes that persons receiving social assistance are entitled to free of charge health insurance. However, persons who do not qualify for social assistance or who have temporarily lost the right to social assistance are left without health coverage during the period that their social assistance is interrupted. The medical services available for persons in such circumstances are mainly limited to emergency medical care (under the Health Act) or the reimbursement of the costs of hospital treatment (under Decree No. 17 of 31 January 2007). They will be unable to obtain treatment for a sickness not considered an emergency or primary or specialised outpatient medical care. Therefore, the insufficient medical services available for poor or socially vulnerable persons amounts to a breach of the aforementioned provision.”

1. Welcomes the measures already taken by the Bulgarian authorities (see appendix to this resolution);

2. Looks forward to Bulgaria reporting that, at the time of the submission of the next report concerning the relevant provisions of the European Social Charter, the situation has been brought into full conformity.

Appendix to Resolution CM/ResChS(2010)1

Information provided by the Permanent Representative of Bulgaria during consideration by the Committee of Ministers of the report transmitted by the European Committee of Social Rights concerning Collective complaint No. 46/2007

“In its decision on the merits of Collective complaint No. 46/2007, the European Committee of Social Right stated that the State Health Insurance system in Bulgaria ‘meets the requirements of the Revised Charter’. The Committee further noted that the system ensures also that some of the most disadvantaged segments of the community have access to health care.

The Committee, however, considered that those relatively few persons who had lost social insurance were left partly without health coverage, because they fully qualified for emergency care, but would not, according to the Committee, be able to obtain the necessary care in case of sickness which did not necessarily require emergency care.

In respect of this, I would like to inform you that by Decree No. 27 of 9 February 2009 on the implementation of the state budget, the mechanism established for the payment of costs of hospital treatment for persons without resources was made permanent, thereby effectively providing the required long-term solution to the issue.

With regard to the other conclusion of the Committee – namely that the state has failed to take reasonable steps to address the specific problems faced by the Roma communities stemming from their often unhealthy living conditions – reference is made to the Framework Programme for Equal Integration of Roma in Bulgarian Society adopted in 1999 and the National Action Plan for Roma Integration 2005-2015 adopted in April 2005 by the Committee of Ministers. There are four main priorities in the Framework Programme and the National Action Plan, namely, education, healthcare, employment and improving housing conditions.

More concretely, in implementation of the Health Strategy concerning persons in disadvantaged position belonging to ethnic minorities, 80 000 medical examinations were carried out in the period 2006-2009. Also, 750 000 leva were allocated from the state budget in 2009 specifically for this purpose.

These facts indicate that the Bulgarian authorities have been taking appropriate measures to bring the situation into conformity with the standards of the Charter regarding the provision of healthcare to all persons who may need it, irrespective of their origin or social condition.”

Appendix 3
(Item 4.1c)

Resolution CM/ResChS(2010)2
Collective complaint No. 48/2008
by the European Roma Rights Centre (ERRC) against Bulgaria

(Adopted by the Committee of Ministers on 31 March 2010
at the 1081st meeting of the Ministers’ Deputies)

The Committee of Ministers,13

Having regard to Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints;

Taking into consideration the complaint lodged on 28 March 2008 by the European Roma Rights Centre against Bulgaria;

Having regard to the report transmitted by the European Committee of Social Rights, in which it found that Article 12 (c) of the Social Assistance Act, following amendments introduced in 2006 and 2008, breached the right to social assistance of unemployed persons with insufficient resources within the meaning of Article 13§1 of the Revised Charter, for the following reasons:

“Pursuant to Article 13§1 of the Revised Charter, states are required to guarantee minimum income and social assistance for persons without adequate resources. The right to social assistance takes the form of an individual right in circumstances where a basic condition of eligibility is satisfied, which occurs when no other means of reaching a minimum income level consistent with human dignity are available to that person. Reducing or suspending social assistance benefits may only be in conformity with the Charter if they do not deprive persons in need of their means of subsistence.

The Committee considers that the contested amendments to the Social Assistance Act, which establish the interruption of social assistance for unemployed persons in active age after 18, 12 or 6 months, cannot be considered to be a permissible restriction on the right to receive social assistance under the provisions of Article 13§1.

The Committee notes that the government has taken measures to improve the education and training of unemployed persons, as well as measures to encourage the reintegration into the labour market of persons that will be losing social assistance as a result of the contested legislative amendments. Nevertheless, despite these measures, it remains probable that only a limited number of persons affected by the social assistance cuts will actually obtain employment.

Taking into account the serious risk that persons affected by the denial of continued social assistance will be deprived of adequate resources, and that social assistance must be provided as long as need persists to enable the person concerned to continue to live in a manner compatible with their human dignity, the Committee holds that the amendments to the Social Assistance Act interrupting minimum income for persons in need after 18, 12 or 6 months are in breach of Article 13§1 of the Revised Charter.

With respect to the complainant’s allegations that the amendments to the Social Assistance Act also violate Article E of the Revised Charter because they will have a disparate and unjustified impact on Roma, the Committee finds that they can be regarded as subsumed in the circumstances of this complaint within the wider question of whether Article13§1 has been breached by the impugned amendments. Therefore, having regard to the finding of a violation of the right to social assistance of all those persons affected by the amendments to the Social Assistance Act, the Committee does not consider it necessary to examine the allegations of a breach of Article E of the Revised Charter read in conjunction with Article 13§1.”

1. Welcomes the abrogation of Article 12 (c) of the Social Assistance Act, which will enter into force on 1 January 2011 (see appendix to this resolution);

2. Looks forward to Bulgaria reporting, at the time of the submission of the next report concerning the relevant provisions of the European Social Charter, that the new legislation is implemented in practice.

Appendix to Resolution CM/ResChS(2010)2

Information provided by the Permanent Representative of Bulgaria on 19 March 2010 concerning Collective complaint No. 48/2008

“With reference to Collective complaint No. 48/2008 of the European Roma Rights Centre against Bulgaria, where the European Committee of Social Rights found that the interruption of social assistance for unemployed persons in active age after 18 or 12 months, as foreseen by Article 12(c) of the Social Assistance Act of the Republic of Bulgaria, could not be considered to be a permissible restriction on the right to receive social assistance under the provisions of Article 13, paragraph 1 of the European Social Charter (revised), please be informed of the following:

The impugned provision 12 (c) was abolished by an amendment of the Social Assistance Act, adopted by the National Assembly of the Republic of Bulgaria on 10 February 2010 (promulgated in issue 15 of the State Gazette, 23 February 2010). The amendment will enter into force on 1 January 2011.

The said amendment provides an effective long-term solution to the issue raised by the European Committee of Social Rights in the conclusion of its report on Collective complaint No. 48/2008.

It should also be noted that the adoption of the said amendment also completely resolves the one partly remaining issue concerning Collective complaint No. 46/2007 of the European Roma Rights Centre against Bulgaria.”

Appendix 4
(Item 4.2)

Reply to Parliamentary Assembly Recommendation 1865 (2009) on
“The protection of human rights in emergency situations”

(Adopted by the Committee of Ministers on 31 March 2010
at the 1081st meeting of the Ministers’ Deputies)

1. The Committee of Ministers notes with interest Parliamentary Assembly Recommendation 1865 (2009) on “The protection of human rights in emergency situations”, which it has brought to the attention of the members states’ governments. It has also communicated it to the Steering Committee for Human Rights (CDDH) and to the Committee of Legal Advisers on Public International Law (CAHDI) for comments. The comments received are appended to this reply.

2. The Committee of Ministers agrees with the Parliamentary Assembly that as the declaration of a state of emergency entails restrictions on the rights and freedoms of individuals, it must be used with utmost care and as a means of last resort only. It must never become a pretext to restrict the exercise of fundamental human rights unduly.

3. The Committee of Ministers observes that under Article 15, paragraph 3 of the European Convention on Human Rights (ETS No. 5), a High Contracting Party derogating from its obligations under the Convention shall keep the Secretary General fully informed of the measures it has taken and the reasons therefore. He/she shall also be informed when the measures cease to operate. The Secretary General has the possibility to request supplementary information from the High Contracting Party concerned during and after the state of emergency and has made use of this possibility on several occasions in the past. The Secretary General can transmit the information received to other member states and to the relevant bodies within the Organisation.

4. As to the Assembly’s recommendation to add more rights to the list of those that are currently non-derogable under Article 15 of the Convention, especially rights whose suspension is not essential even in a state of emergency, the Committee of Ministers agrees with the CDDH, that in the light of the Court’s role in assessing the national margin of appreciation, it is not necessary to take such a step. It recalls that although it is not for the Court to say what measures are best adapted to situations of emergency because this comes under the direct responsibility of governments, the Court has nevertheless confirmed that “Contracting Parties do not enjoy an unlimited power of appreciation. It is for the Court to rule on whether, inter alia, the states have gone beyond the “extent strictly required by the exigencies” of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision. At the same time, in exercising its supervision the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of, the emergency situation”.14

5. Recalling the subsidiary nature of the Convention’s control mechanism, the Committee of Ministers agrees with the Assembly about the usefulness of a possibility for judicial scrutiny at national level of the validity of a state of emergency and its implementation. It also agrees that the legislature could have an important role to play in scrutinising the decision-making process.

Appendix 1 to the reply

Comments by the Steering Committee for Human Rights (CDDH)

1. The Steering Committee for Human Rights (CDDH) notes with interest Recommendation 1865 (2009) of the Parliamentary Assembly on “The protection of human rights in emergency situations”, which deals with a crucial problem. At the moment of a declaration of a state of emergency, the level of surveillance at the national and at the European level must be effective in order to respect human rights, with the relevant Council of Europe control mechanisms fully playing their role.

2. The Committee has already looked into situations where fundamental rights are at risk of being violated, under the pretext of protecting them, particularly within the framework of drafting the Guidelines of the Committee of Ministers on Human Rights and the Fight against Terrorism, adopted on 11 July 2002. Following from Article 15 of the European Convention on Human Rights and the Court’s jurisprudence, it is intended that when the fight against terrorism intervenes in a state of war or public danger which threatens the life of the nation, it is possible to unilaterally adopt measures temporarily derogating from certain obligations which follow from international human rights instruments, but only to the extent strictly required by the exigencies of the situation, as well as within the limits and under the conditions fixed by international law. It is emphasised that states may never, whatever the acts of the person suspected of terrorist activities, or convicted of such activities, derogate from the right to life as guaranteed by these international instruments, from the prohibition of torture or inhuman or degrading treatment or punishment, from the principle of legality of sentences and of measures, nor from the ban on the retrospective effect of criminal law (Guideline XV).

3. The CDDH takes note of the suggestion of the Parliamentary Assembly to grant to the Secretary General, upon the receipt of a declaration of derogation in accordance with Article 15 of the Convention, the possibility to request additional information during and after the state of emergency, in order to pass this information on to other member states and affected bodies within the Organisation. It recalls that the legal framework for the exercise of this competence by the Secretary General already exists in paragraph 3 of Article 15 of the Convention.

4. The CDDH nevertheless recalls that the Court affirmed its competence for exercising control over the existence of a public danger threatening the life of the nation: “it is for the Court to determine whether the conditions laid down in Article 15 for the exercise of the exceptional right of derogation have been fulfilled in the present case”.15 The Court does not exercise this competence in abstracto, but only in the event of a concrete situation which has been brought to its attention following an individual or state application.

5. In addition, if it is not for the Court to say what measures are best adapted to situations of emergency because this comes under the direct responsibility of governments, the Court has nevertheless confirmed that “Contracting Parties do not enjoy an unlimited power of appreciation. It is for the Court to rule on whether, inter alia, the states have gone beyond the “extent strictly required by the exigencies” of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision. At the same time, in exercising its supervision the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of, the emergency situation”.16

6. Rather than extending the list of rights in relation to which no derogations can be made under Article 15 of the Convention, the CDDH wants to underline the crucial role of the Court in assessing the national margin of appreciation.

Appendix 2 to the reply

Communication by the Chair of the Committee of Legal Advisers on Public International Law (CAHDI)

In this recommendation, the Assembly invites the Committee of Ministers to look into ways to elevate the level of scrutiny applied to declarations of a state of emergency, in particular by considering the opportunity of granting the Secretary General, upon receipt of a declaration of a derogation under Article 15 of the European Convention on Human Rights (ETS No. 5), the possibility to request supplementary information during and after the state of emergency, and to transmit this information to all Contracting Parties, the Chairperson of the Committee of Ministers, the President of the European Court of Human Rights, the Council of Europe Commissioner for Human Rights, as well as the Presidents of the Parliamentary Assembly and of the Congress of Local and Regional Authorities of the Council of Europe.

Besides, the Assembly proposes considering of a possibility of adding more rights to the list of those that are currently non-derogable under Article 15 of the European Convention on Human Rights, especially with respect to rights whose suspension is not essential even in a state of emergency, as is the case in Article 27 of the American Convention on Human Rights.

The CAHDI received the text of this recommendation and the invitation for presenting its comments after its September meeting (Strasbourg, 10-11 September 2009). Since the next meeting of CAHDI is planned for 18 and 19 March 2010 the Committee will not be able to consider this request of comments before the deadline, namely 15 December 2009.

However, the President of CAHDI considers it important to underline that the questions raised by the Recommendation 1865 (2009) would in any case require an amendment of the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5).

Appendix 5
(Item 4.3)

Resolution CM/ResCPT(2010)1
Election of members of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)
in respect of Croatia and France

(Adopted by the Committee of Ministers on 31 March 2010
at the 1081st 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 seats in the CPT in respect of Croatia and France are vacant since 20 December 2009;

Considering that, in the light of the foregoing, it is necessary to elect members of the Committee in respect of these two countries;

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 of Croatia and France to the Parliamentary Assembly 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 31 March 2010, for a term of office which will expire on 19 December 2013:

- Ms Marija DEFINIS-GOJANOVIĆ (in respect of Croatia);

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 31 March 2010, for a term of office which will expire on 19 December 2013:

- Mr Xavier RONSIN (in respect of France).

Appendix 6
(Item 4.4)

Reply to Parliamentary Assembly Recommendation 1866 (2009) on
“The situation of human rights defenders in Council of Europe member states”

(Adopted by the Committee of Ministers on 31 March 2010
at the 1081st meeting of the Ministers’ Deputies)

1. The Committee of Ministers has taken note of Parliamentary Assembly Recommendation 1866 (2009) on “The situation of human rights defenders in Council of Europe member states”, which it has brought to the attention of the member states’ governments and communicated to the Steering Committee for Human Rights (CDDH) for comments. It recalls the commitment made by Heads of State and Government meeting at their Third Summit in Warsaw 2005 that the Council of Europe “shall – through its various mechanisms and institutions – play a dynamic role in protecting the right of individuals and promoting the invaluable engagement of non-governmental organisations, to actively defend human rights”.

2. The Committee of Ministers considers that human rights defenders play an important role at national and international levels in ensuring the effective protection of individual rights and freedoms. It deeply regrets that they are often victims of violations of their rights, threats and attacks, despite efforts at both national and international levels. The Committee of Ministers condemns all attacks on human rights defenders.

3. In February 2008, the Committee of Ministers adopted a Declaration on Council of Europe action to improve the protection of human rights defenders and promote their activities. This declaration presents a set of provisions for states to observe for the protection of human rights defenders and promotion of their work. Whereas it acknowledges that primary responsibility and duty to promote and protect human rights defenders lies with the state, the Committee of Ministers underlines that the Council of Europe shall also contribute to creating an enabling environment for human rights defenders and to protecting them and their work in defending human rights. The declaration calls on member states to take a certain number of measures, including to “provide measures for swift assistance and protection to human rights defenders in danger in third countries, such as, where appropriate, attendance at and observation of trials and/or, if feasible, the issuing of emergency visas”.

4. In the context of the follow-up to the 118th Ministerial Session (Strasbourg, May 2008), the Ministers’ Deputies instructed the Steering Committee for Human Rights, in consultation with the Commissioner for Human Rights, to undertake a first review of the follow-up given to the Committee of Ministers’ declaration and to report back. At the handover meeting of the Chairmanship of the Committee of Ministers between Slovenia and Switzerland on 18 November 2009, the Committee of Ministers took note of a report on the follow-up given to its declaration. On the same occasion, the Committee of Ministers reaffirmed its condemnation of all attacks on and violations of the rights of human rights defenders in Council of Europe member states or elsewhere, whether carried out by state agents or non-state actors. It also welcomed the work undertaken in this field by all Council of Europe bodies and institutions and reiterated its call to these bodies to pay special attention to issues concerning human rights defenders in their respective work.

5. The Committee of Ministers has on several occasions highlighted the important role played by the Council of Europe Commissioner for Human Rights in protecting and supporting human rights defenders. It welcomes the useful information contained in the Commissioner’s 2008 annual activity report as well as the report he published in March 2009 on the Round Table on the situation of human rights defenders in Europe.17 The Committee of Ministers recalls that the Commissioner’s competences are particularly suitable for effective contribution to the protection of human rights defenders. The Committee also welcomes the Assembly’s statement that it will actively co-operate with and help the Commissioner with this task when the need arises. It notes that the Commissioner works in close co-operation with other intergovernmental organisations and institutions.

6. Regarding efforts seeking to put an end to impunity for human rights violations, the Committee of Ministers refers, inter alia, to ongoing work in the CDDH, which is currently elaborating a set of guidelines against impunity for human rights violations. These guidelines will be completed towards the end of 2010.

7. The Committee of Ministers supports the Assembly’s call for increased focus on human rights defenders within the Council of Europe’s human rights awareness-raising and training activities, notably those concerning law-enforcement bodies and the media. As regards media freedom, it wishes to draw the Assembly’s attention to its Declaration on measures to promote respect for Article 10 of the European Convention on Human Rights adopted on 13 January 2010 and to its invitation to the Secretary General to make arrangements for improved collection and sharing of information and enhanced co-ordination in the field of freedom of expression and information, including freedom of the media. In this context, the Committee of Ministers has also made a call on all member states to co-operate with the relevant bodies and institutions of the Council of Europe in ensuring compliance of national law and practice with the relevant standards of the Council of Europe, guided by a spirit of dialogue and co-operation.

8. Finally, the Committee of Ministers welcomes the work of the Council of Europe Conference of International Non-Governmental Organisations and its Expert Council on NGO Law. It recalls the work under way to follow-up the implementation of its Recommendation CM/Rec(2007)14 on the legal status of non-governmental organisations in Europe, which stipulates that NGOs should enjoy the right to freedom of expression and all other universally and regionally guaranteed rights and freedoms applicable to them.

Appendix to the reply

Comments by the Steering Committee for Human Rights (CDDH)

1. Considering particularly the recent assassinations of human rights defenders,18 the Steering Committee for Human Rights (CDDH) can only join in on the concerns expressed by the Parliamentary Assembly in its Recommendation 1866 (2009) on “The situation of human rights defenders in Council of Europe member states”. The CDDH remains convinced of the essential importance of the protection of human rights defenders, who play a fundamental role in the promotion and protection of human rights and who contribute in a crucial way to the efforts put in place within the framework of international human rights, as it was underlined in the Declaration of the Committee of Ministers on Council of Europe action to improve the protection of human rights defenders and promote their activities, adopted on 6 February 2008.

2. In the first place, the CDDH refers to its activity report from 200819 and recalls that the aforementioned declaration is a common minimum norm which the states must observe for the protection of human rights defenders and promotion of their work. The primary responsibility and duty to promote and protect human rights defenders lies with the state. In this regard, the declaration orders member states to take a certain number of measures, namely “provide measures for swift assistance and protection to human rights defenders in danger in third countries, such as, where appropriate, attendance at and observation of trials and/or, if feasible, the issuing of emergency visas”.

3. In its activity report, the CDDH underlined that the Council of Europe has an important role to play by contributing to the creation of an environment favourable to human rights defenders and that the Commissioner should reinforce his key role. Similarly, the CDDH has invited the Council of Europe to carry out its activities concerning human rights defenders in direct co-operation and in complementarity with other intergovernmental organisations, mainly the OSCE, the European Union and the United Nations.

4. In this sense, the CDDH thus welcomes the terms of the Recommendation 1866 (2009). Regarding the efforts seeking to eradicate violations of the rights of human rights defenders and to put an end to impunity for these violations, the CDDH wishes to remind of the work that it is currently carrying out in relation to the feasibility of guidelines against impunity for human rights violations. This work should be accomplished in 2010.

5. Furthermore, the CDDH welcomes the report prepared by the Commissioner for Human Rights in 2009 and recalls that this body has competences particularly suitable for effective contribution to the protection of human rights defenders.

Appendix 7
(Item 4.5a)

Resolution CM/ResChS(2010)3
on the implementation of the European Social Charter during the period 2005-2006
(Conclusions XIX-1 (2008), provisions related to employment, training and equal opportunities)

(Adopted by the Committee of Ministers on 31 March 2010
at the 1081st meeting of the Ministers’ Deputies)

The Committee of Ministers,20

Referring to the European Social Charter, in particular to the provisions of Part IV thereof;

Having regard to Article 29 of the Charter;

Considering the reports on the European Social Charter submitted by the Governments of Austria, Croatia, Czech Republic, Denmark, Germany, Greece, Hungary, Iceland, Latvia, Luxembourg, Netherlands (Netherlands Antilles, Aruba), Poland, Slovak Republic, Spain, “the former Yugoslav Republic of Macedonia”, Turkey and the United Kingdom (concerning the reference period 2005-2006);

Considering Conclusions XIX-1 (2008) of the European Committee of Social Rights appointed under Article 25 of the Charter;

Following the proposal made by the Governmental Committee established under Article 27 of the Charter,

Recommends that governments take account, in an appropriate manner, of all the various observations made in Conclusions XIX-1 (2008) of the European Committee of Social Rights and in the report of the Governmental Committee.

Appendix 8
(Item 4.5b)

Resolution CM/ResChS(2010)4
on the implementation of the European Social Charter (revised) during the period 2005-2006
(Conclusions 2008, provisions related to employment, training and equal opportunities)

(Adopted by the Committee of Ministers on 31 March 2010
at the 1081st meeting of the Ministers’ Deputies)

The Committee of Ministers,21

Referring to the European Social Charter (revised), in particular to the provisions of Part IV thereof;

Having regard to Article 29 of the Charter;

Considering the reports on the European Social Charter (revised) submitted by the Governments of Albania, Andorra, Armenia, Azerbaijan, Belgium, Bulgaria, Cyprus, Estonia, Finland, France, Georgia, Italy, Lithuania, Malta, Moldova, Netherlands (Kingdom in Europe), Norway, Portugal, Romania, Slovenia and Sweden (concerning the reference period 2005-2006); with the exception of Ireland, which did not submit a report;

Considering the Conclusions 2008 of the European Committee of Social Rights appointed under Article 25 of the Charter;

Following the proposal made by the Governmental Committee established under Article 27 of the Charter,

Recommends that governments take account, in an appropriate manner, of all the various observations made in the Conclusions 2008 of the European Committee of Social Rights and in the report of the Governmental Committee.

Appendix 9
(Item 4.6)

Joint reply to Parliamentary Assembly Recommendation 1868 (2009) on
“Action to combat gender-based human rights violations, including abduction of women and girls”
and to Parliamentary Assembly Recommendation 1881 (2009) on
“The urgent need to combat so-called “honour crimes””

(Adopted by the Committee of Ministers on 31 March 2010
at the 1081st meeting of the Ministers’ Deputies)

1. The Committee of Ministers has carefully examined Parliamentary Assembly Recommendations 1868 (2009) on “Action to combat gender-based human rights violations, including abduction of women and girls”, and 1881 (2009) on “The urgent need to combat so-called “honour crimes””. It has brought both recommendations to the attention of the governments of member states and has forwarded them to a number of intergovernmental bodies.22

2. The Committee of Ministers agrees with the Assembly about the need to take action to combat gender-based human rights violations, including abduction of women and girls and so-called “honour crimes”. Recommendation 1881 (2009) refers to a strategy based on the elimination of every form of legislative justification for diminishing or removing the criminal responsibility of the perpetrators of “honour crimes”. The Committee of Ministers fully supports this approach. There can be no justification based on custom, religion, tradition or honour for acts of violence against women.

3. The Committee of Ministers is furthermore of the opinion that member states should adopt, according to their national legal systems, the necessary legislative or other measures to ensure that any form of violence committed in the name of honour is criminalised and punishable by effective, proportionate and dissuasive sanctions, taking into account its seriousness.

4. The Council of Europe’s standard-setting work in this field is going ahead according to schedule. The Committee refers to its reply to Assembly Recommendation 1872 (2009) on “The rights of today’s girls: the rights of tomorrow’s women”, and recalls that, according to the interim report of the Ad hoc Committee on preventing and combating violence against women and domestic violence (CAHVIO), considered by the Ministers’ Deputies on 1 July 2009, the focus of the future Council of Europe convention on domestic violence should be on the elimination of violence against women and should deal with domestic violence which affects women disproportionally. The convention should cover all forms of violence perpetrated against women, whether physical, psychological, sexual or economic in nature. It should cover any act of gender-based violence, which results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion, or arbitrary deprivation of liberty, whether occurring in the public or private sphere. This would include, but not be limited to, physical and psychological violence, including stalking; sexual violence, including sexual assault, rape and sexual harassment; as well as other forms of violence against women, including forced marriage, deprivation of liberty, female genital mutilation and crimes committed in the name of honour.

5. According to the interim report, the draft convention will contain a chapter on protection and support of victims, including the establishment of support services such as telephone helplines, shelters and emergency centres. Moreover, as a follow-up to Resolution No. 1 adopted at the 29th Council of Europe Conference of Ministers of Justice (18-19 June 2009, Tromsø, Norway) on preventing and responding to domestic violence, which includes crimes committed in the name of honour, the Committee of Ministers has asked the European Committee on Crime Problems (CDPC) to initiate work on the status and rights of victims in criminal proceedings with a view to granting them status in criminal cases.

6. The Committee of Ministers notes that the Assembly considers that a unified statistical data collection system for gender-based human rights violations could be a useful tool for decision makers when laying down policies to combat these phenomena. The Committee is not sure, however, that the benefits would be such as to justify the establishment of such a system in the present budgetary context. The introduction of a unified statistical collection system is currently being studied by the Ad hoc Committee on preventing and combating violence against women and domestic violence (CAHVIO).

7. As pointed out by the Assembly, the European Centre for Global Interdependence and Solidarity (North-South Centre) has an important role to play in maintaining a dialogue on gender equality and combating gender-based violence with countries of emigration and countries of immigration on gender equality issues. The Committee of Ministers refers to the appended comments made by the Executive Council of the North-South Centre and underlines that the latter reiterates its will to develop its role as a catalyst in the reinforcement of synergies among players working for the promotion of women’s rights in the world, particularly in the Euro-Mediterranean and Euro-African regions.

8. The Committee of Ministers will consider how the fight against the most severe and most widespread forms of violence against women can best be included in the Council of Europe’s assistance and co-operation programmes. It recalls its Declaration “Making gender equality a reality”, adopted at the 119th Ministerial Session in Madrid in May 2009, in which member states are urged to “renew their commitment to achieve equality in fact and in law between women and men as an integral part of human rights and a fundamental criterion of democracy in conformity with the values defended by the Council of Europe and to provide the Council of Europe the necessary human and financial resources”.

9. Finally, the Committee of Ministers refers to its reply to Parliamentary Assembly Recommendation 1798 (2007) on “Respect for the principle of gender equality in civil law”, in which it stated that it does not see the need for drafting a new protocol to the European Convention on Human Rights. In this context, it draws the Assembly’s attention in particular to the comments made by the Steering Committee for Human Rights (CDDH).

Appendix to the reply

Comments received from committees on Parliamentary Assembly Recommendation 1868 (2009) on “Action to combat gender-based human rights violations, including abduction of women and girls”

Comments by the Steering Committee for Equality between Women and Men (CDEG)

As regards the stepping up of the programmes of the North-South Centre on gender equality, the CDEG recalled that following the thematic debate of the Committee of Ministers on gender equality in October 2008, the latter requested the CDEG to continue and extend its action for integrating a gender perspective in Council of Europe activities. It already had the opportunity to contribute actively to the activities organised by the North-South Centre, in particular in the framework of the preparation of the White Book on Intercultural Dialogue, and on women’s participation in political and public life. It therefore supports the proposal of the Parliamentary Assembly to contribute actively to the programmes of the North-South Centre by sharing its experience and its extensive knowledge in the field of equality between women and men.

As regards the drafting of a new protocol to the European Convention on Human Rights on gender equality, it recalls its comments on Recommendation 1798 (2007) of the Parliamentary Assembly – “Respect for the principle of gender equality in civil law” in which it underlined the existing instruments of the Council of Europe which already provide a legal framework to combat any form of discrimination against women.

The CDEG also added in its comments that the drawing up of a new protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, could in due time be considered by the Committee of Ministers. It has also considered that the CDEG could examine further this proposal in co-operation with the other relevant Council of Europe steering committees, in particular the European Committee on Legal Co-operation (CDCJ) and the Steering Committee for Human Rights (CDDH).

Comments by the Executive Council of the North-South Centre

1. The Executive Council of the North-South Centre welcomes the interest shown by the Parliamentary Assembly of the Council of Europe in taking action to combat gender-based human rights violations, including the abduction of women and girls.

2. The North-South Centre feels that equality between women and men is a crucial question in developing societies, as confirmed by the Euro-Mediterranean Ministerial Conference in Istanbul. Respect for women’s fundamental rights endows intercultural dialogue with an eminently positive dimension and constitutes a substantial basis for all debates on cultural diversity, as pointed out by the White Paper on Intercultural Dialogue, “Living Together in Equal Dignity”.

3. In line with its mission of creating platforms for North-South dialogue in order to promote respect for human rights and democratic governance as the foundation of sustainable development, the North-South Centre has been working for women’s fundamental rights for many years. In particular, the issue of the role and rights of women in the Mediterranean region has been at the heart of the Trans-Mediterranean programme since its launch in 1994. The process of promoting and protecting women’s rights in the Euro-Mediterranean region was started and reinforced by the North-South Centre in the conviction that women’s rights are a sine qua non condition for true democratic governance and the reinforcement of citizenship and participation. In fact, a democratic society is judged by the way it treats its women. And women’s place in Mediterranean societies is not dissociable from the challenge of reinforcing democracy and the demand for political, social and cultural reforms.

4. Like the Parliamentary Assembly, the Executive Council considers that the time has come to go a step further and endeavour to reinforce programmes on equality between the sexes and the fight against gender-based violence and pursue dialogue with countries of emigration and immigration on the goals equality between the sexes and civil law in particular and the fight against serious violations of human rights.

5. The conference entitled “Political status and participation: women as actors of change in Euro-Mediterranean society” organised by the North-South Centre, in partnership with the Sub-Committee on equal participation of women and men in decision making of the Parliamentary Assembly of the Council of Europe in Lisbon on 2 and 3 April 2009 fits in with this perspective. The aim of the series of conferences on women as agents of change in Euro-Mediterranean societies, that have been held since 2006, is to take stock of women’s rights in certain Mediterranean countries by looking at developments in family codes or personal status. It is a question of analysing both developments and obstacles and of defining approaches and tools for fighting these obstacles.

6. Moreover, the new Chair of the Executive Council, Deborah Bergamini, has been deeply involved as representative of the Parliamentary Assembly in the Council of Europe’s campaign against violence against women. In this spirit, an awareness-raising operation was organised on her initiative during the Venice Film Festival in September 2009, based on clips filmed by the national television stations of the Council of Europe as part of the campaign.

7. In light of the above, the Executive Council reiterates its will to develop the North-South Centre’s role as a catalyst in the reinforcement of synergies among players working for the promotion of women’s rights in the world, particularly in the Euro-Mediterranean and Euro-African regions.

Comments received from committees on Parliamentary Assembly Recommendations 1868 (2009) on “Action to combat gender-based human rights violations, including abduction of women and girls”, and 1881 (2009) on “The urgent need to combat so-called “honour crimes””

Comments by the Steering Committee for Human Rights (CDDH)

1. The Steering Committee for Human Rights (CDDH) welcomes Recommendation 1868 (2009) of the Parliamentary Assembly on “Action to combat gender-based human rights violations, including abduction of women and girls”, and Recommendation 1881 (2009) on “The urgent need to combat so-called ‘honour crimes’”, which touch upon serious problems present in all member states of the Council of Europe and of which the number of victims tends to increase. The CDDH notes that in these texts, the Assembly notably repeats its request for the drafting of a new protocol the European Convention on Human Rights devoted to equality between women and men.

2. While understanding the reasons underlying this proposition, the CDDH refers to the comments it had already formulated regarding Recommendation 1798 (2007) on “Respect for the principle of gender equality in civil law”, referred to in the aforementioned texts. It reaffirms that implementing the existing legal framework, meaning Article 14 of the Convention, Article 5 of Protocol No. 7 and Protocol No. 12 to the Convention, can solve the issues which have been raised without requiring a new binding legal instrument (convention, protocol or treaty). In this regards, it reminds that on the basis of existing dispositions, the European Court of Human Rights recently found a violation of Article 14 of the Convention, jointly with Articles 2 and 3, in a case that dealt with the authorities’ failure to protect the applicant and her mother against acts of domestic violence. The Court judged that the physical abuse inflicted on the applicant and her mother was related to their sex and that it must thus be seen as a form of discrimination against women.23

3. The CDDH draws attention to the significant drafting work of the Ad hoc committee on preventing and combating violence against women and domestic violence (CAHVIO), of a draft Convention on the prevention of violence against women and domestic violence. That said, the CDDH is convinced that legal responses, whilst essential in this field, are nevertheless not sufficient; they must be combined with educational and cultural measures likely to deter, in a long-term perspective, the phenomenon of violence against women and domestic violence. Consequently, the CDDH suggests that within the Council of Europe, a particular emphasis be put on actions in the field of human rights education and culture.

Comments received from committees on Parliamentary Assembly 1881 (2009) on “The urgent need to combat so-called “honour crimes””

Comments of the European Committee on Crime Problems (CDPC)

1. Following the adoption by the Parliamentary Assembly of Recommendation 1881 (2009) on “The urgent need to combat so-called “honour crimes””, the Committee of Ministers decided to communicate it to the European Committee on Crime Problems (CDPC) for information and/or possible comments. The CDPC examined the above recommendation and decided to contribute to the response of the Committee of Ministers by providing the following comments concerning matters within its fields of competence.

2. The CDPC welcomed the initiative of the Parliamentary Assembly for the Committee of Ministers to devise a comprehensive strategy to put a stop to so-called “honour crimes”, based on the fundamental principles of gender equality and respect for human rights, and supported the Assembly’s invitation to the Committee of Ministers to include the fight against the most severe and most widespread forms of violence against women in its assistance and co-operation programmes.

3. As regards the specific criminal law aspects, the CDPC noted that Recommendation 1881 (2009) referred to a strategy based on the elimination of every form of legislative justification for diminishing or removing the criminal responsibility of the perpetrators of “honour crimes”. The CDPC fully supported this approach, and believed that custom, religion, tradition or honour may not be considered to justify acts of violence against women.

4. Furthermore, Parliamentary Assembly Resolution 1681 (2009), to which its Recommendation 1881 (2009) refers, asked national parliaments of Council of Europe member states to pass legislation to make so-called “honour crimes” offences either by creating a specific offence or by making provision for penalties to be aggravated. The CDPC was of the opinion that member states should adopt, according to their national legal systems, the necessary legislative or other measures to ensure that any form of violence committed in the name of honour is criminalised and punishable by effective, proportionate and dissuasive sanctions, taking into account its seriousness.

5. In this respect, the CDPC wished to recall the on-going work of the Ad hoc committee on preventing and combating violence against women and domestic violence (CAHVIO), which is drafting a convention on the subject. According to CAHVIO’s interim report adopted by the Committee of Ministers on 1 July 2009, “crimes committed in the name of honour” form part of the conduct that should be covered by the draft convention.

6. In its Resolution 1681 (2009), the Parliamentary Assembly also requested member states to protect and support victims and potential victims of “honour crimes”. The CDPC recalled that the above-mentioned interim report stated that the draft convention being drawn up by CAHVIO would contain a chapter on protection and support of victims, including the establishment of support services such as telephone helplines, shelters, and emergency centres.

7. Moreover, as a follow-up to Resolution No. 1 adopted at the 29th Council of Europe Conference of Ministers of Justice (18-19 June 2009, Tromsø, Norway) on preventing and responding to domestic violence, which includes crimes committed in the name of honour, the CDPC wished to inform the Assembly that it will initiate work on the status and rights of victims in criminal proceedings with a view to granting them status in criminal cases. At its 2009 plenary meeting (12-16 October), the CDPC approved a proposal for an expert to carry out a preliminary report/study on this subject.

8. In view of the above, the CDPC was of the opinion that the standard-setting work already in progress on the subject will sufficiently address the criminal law and criminal procedural law questions within its competence which arise in relation to so-called “honour crimes”.

Comments by the Steering Committee for Equality between Women and Men (CDEG)

The CDEG has noted with interest recommendations 1881 (2009) and 1887 (2009) of the Parliamentary Assembly on, respectively, “The urgent need to combat so-called “honour crimes”” and “Rape of women, including marital rape”.

The CDEG fully supports the spirit of these recommendations and refers to its action since the 1970s and right up to the present day to combat all forms of violence against women. It welcomes the fact that its efforts, combined with those of the Parliamentary Assembly, will lead to the first European human rights treaty in this area, in the form of a Council of Europe convention on preventing and combating violence against women and domestic violence.

The Ad hoc committee on preventing and combating violence against women and domestic violence (CAHVIO) has decided that the convention should cover all forms of violence against women, whether this be physical, psychological, sexual or economic. The convention should cover all forms of sexist violence that results or could result in physical, sexual or psychological suffering or harm, including the threat of such acts, coercion, or arbitrary deprivation of liberty, whether occurring in public or private life.

This includes the following non-exhaustive aspects:

● physical and mental aggression, including criminal harassment;
● sexual violence, including sexual assaults, rape and sexual harassment;
● other forms of violence against women, including forced marriages, deprivation of liberty, female genital mutilation and honour crimes.

Concerning more particularly paragraph 2.3 of Recommendation 1887 (2009) requesting member states to “establish marital rape as a separate offence under their domestic law if they have not already done so, in order to avoid any hindrance of legal proceedings”, some CDEG members considered that establishing marital rape as a separate offence was not necessary, rape being considered as a crime in their legislation, independently of the existing relationship between the perpetrator and the victim.

In connection with the drafting of a new protocol on equality to the European Convention on Human Rights, as advocated in Recommendation 1881 (2009) on “The urgent need to combat so-called “honour crimes””, it repeats its comments on Parliamentary Assembly Recommendation 1798 (2007) on “Respect for the principle of gender equality in civil law”. In these comments, the CDEG referred to the existing Council of Europe instruments that already offered a legal basis for combating all forms of discrimination against women and asked member states that had not already done so to sign and ratify them, particularly Protocol No. 12 of the European Convention on Human Rights, and to fully apply the provisions of these instruments.

The CDEG also notes that Recommendation CM/Rec(2007)17 on gender equality standards and mechanisms invites member states to ratify and implement the “international legal instruments on human rights in general and on women’s and girls’ full enjoyment of human rights in particular” because “they are a fundamental and authoritative basis and a framework for national policies to eliminate discrimination on the grounds of sex and promote gender equality. Their ratification is a first decisive step towards these objectives and their full implementation must be ensured and constantly monitored and evaluated.”

The CDEG added in its comments that the Committee of Ministers might envisage a new protocol to the European Convention on Human Rights in due course. It also thought that it could give this proposal more detailed consideration in conjunction with other relevant Council of Europe steering committees, in particular the European Committee on Legal Co-operation (CDCJ) and the Steering Committee for Human Rights (CDDH).

As to the proposed launch of a Council of Europe campaign against rape, including marital rape, possibly in connection with the promotion of the future Council of Europe convention, as proposed in Recommendation 1887 (2009) on the “Rape of women, including marital rape”, the CDEG would support such an idea provided that the necessary human and financial resources were made available. This point was made by the Committee of Ministers itself in its recent Declaration “Making gender equality a reality”, in which member states are urged to “renew their commitment to achieve equality in fact and in law between women and men as an integral part of human rights and a fundamental criterion of democracy in conformity with the values defended by the Council of Europe and to provide the Council of Europe the necessary human and financial resources”.

Appendix 10
(Item 4.7)

Recommendation CM/Rec(2010)5
of the Committee of Ministers to member states
on measures to combat discrimination on grounds of sexual orientation or gender identity

(Adopted by the Committee of Ministers on 31 March 2010
at the 1081st 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 a greater unity between its members, and that this aim may be pursued, in particular, through common action in the field of human rights;

Recalling that human rights are universal and shall apply to all individuals, and stressing therefore its commitment to guarantee the equal dignity of all human beings and the enjoyment of rights and freedoms of all individuals without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status, in accordance with the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5) (hereinafter referred to as “the Convention”) and its protocols;

Recognising that non-discriminatory treatment by state actors, as well as, where appropriate, positive state measures for protection against discriminatory treatment, including by non-state actors, are fundamental components of the international system protecting human rights and fundamental freedoms;

Recognising that lesbian, gay, bisexual and transgender persons have been for centuries and are still subjected to homophobia, transphobia and other forms of intolerance and discrimination even within their family – including criminalisation, marginalisation, social exclusion and violence – on grounds of sexual orientation or gender identity, and that specific action is required in order to ensure the full enjoyment of the human rights of these persons;

Considering the case law of the European Court of Human Rights (“hereinafter referred to as “the Court”) and of other international jurisdictions, which consider sexual orientation a prohibited ground for discrimination and have contributed to the advancement of the protection of the rights of transgender persons;

Recalling that, in accordance with the case law of the Court, any difference in treatment, in order not to be discriminatory, must have an objective and reasonable justification, that is, pursue a legitimate aim and employ means which are reasonably proportionate to the aim pursued;

Bearing in mind the principle that neither cultural, traditional nor religious values, nor the rules of a “dominant culture” can be invoked to justify hate speech or any other form of discrimination, including on grounds of sexual orientation or gender identity;

Having regard to the message from the Committee of Ministers to steering committees and other committees involved in intergovernmental co-operation at the Council of Europe on equal rights and dignity of all human beings, including lesbian, gay, bisexual and transgender persons, adopted on 2 July 2008, and its relevant recommendations;

Bearing in mind the recommendations adopted since 1981 by the Parliamentary Assembly of the Council of Europe regarding discrimination on grounds of sexual orientation or gender identity, as well as Recommendation 211 (2007) of the Congress of Local and Regional Authorities of the Council of Europe on “Freedom of assembly and expression for lesbians, gays, bisexuals and transgendered persons”;

Appreciating the role of the Commissioner for Human Rights in monitoring the situation of lesbian, gay, bisexual and transgender persons in the member states with respect to discrimination on grounds of sexual orientation or gender identity;

Taking note of the joint statement, made on 18 December 2008 by 66 states at the United Nations General Assembly, which condemned human rights violations based on sexual orientation and gender identity, such as killings, torture, arbitrary arrests and “deprivation of economic, social and cultural rights, including the right to health”;

Stressing that discrimination and social exclusion on account of sexual orientation or gender identity may best be overcome by measures targeted both at those who experience such discrimination or exclusion, and the population at large,

Recommends that member states:

1. examine existing legislative and other measures, keep them under review, and collect and analyse relevant data, in order to monitor and redress any direct or indirect discrimination on grounds of sexual orientation or gender identity;

2. ensure that legislative and other measures are adopted and effectively implemented to combat discrimination on grounds of sexual orientation or gender identity, to ensure respect for the human rights of lesbian, gay, bisexual and transgender persons and to promote tolerance towards them;

3. ensure that victims of discrimination are aware of and have access to effective legal remedies before a national authority, and that measures to combat discrimination include, where appropriate, sanctions for infringements and the provision of adequate reparation for victims of discrimination;

4. be guided in their legislation, policies and practices by the principles and measures contained in the appendix to this recommendation;

5. ensure by appropriate means and action that this recommendation, including its appendix, is translated and disseminated as widely as possible.

Appendix to Recommendation CM/Rec(2010)5

I. Right to life, security and protection from violence

A. “Hate crimes” and other hate-motivated incidents

1. Member states should ensure effective, prompt and impartial investigations into alleged cases of crimes and other incidents, where the sexual orientation or gender identity of the victim is reasonably suspected to have constituted a motive for the perpetrator; they should further ensure that particular attention is paid to the investigation of such crimes and incidents when allegedly committed by law enforcement officials or by other persons acting in an official capacity, and that those responsible for such acts are effectively brought to justice and, where appropriate, punished in order to avoid impunity.

2. Member states should ensure that when determining sanctions, a bias motive related to sexual orientation or gender identity may be taken into account as an aggravating circumstance.

3. Member states should take appropriate measures to ensure that victims and witnesses of sexual orientation or gender identity related “hate crimes” and other hate-motivated incidents are encouraged to report these crimes and incidents; for this purpose, member states should take all necessary steps to ensure that law enforcement structures, including the judiciary, have the necessary knowledge and skills to identify such crimes and incidents and provide adequate assistance and support to victims and witnesses.

4. Member states should take appropriate measures to ensure the safety and dignity of all persons in prison or in other ways deprived of their liberty, including lesbian, gay, bisexual and transgender persons, and in particular take protective measures against physical assault, rape and other forms of sexual abuse, whether committed by other inmates or staff; measures should be taken so as to adequately protect and respect the gender identity of transgender persons.

5. Member states should ensure that relevant data are gathered and analysed on the prevalence and nature of discrimination and intolerance on grounds of sexual orientation or gender identity, and in particular on “hate crimes” and hate-motivated incidents related to sexual orientation or gender identity.

B. “Hate speech”

6. Member states should take appropriate measures to combat all forms of expression, including in the media and on the Internet, which may be reasonably understood as likely to produce the effect of inciting, spreading or promoting hatred or other forms of discrimination against lesbian, gay, bisexual and transgender persons. Such “hate speech” should be prohibited and publicly disavowed whenever it occurs. All measures should respect the fundamental right to freedom of expression in accordance with Article 10 of the Convention and the case law of the Court.

7. Member states should raise awareness among public authorities and public institutions at all levels of their responsibility to refrain from statements, in particular to the media, which may reasonably be understood as legitimising such hatred or discrimination.

8. Public officials and other state representatives should be encouraged to promote tolerance and respect for the human rights of lesbian, gay, bisexual and transgender persons whenever they engage in a dialogue with key representatives of the civil society, including media and sports organisations, political organisations and religious communities.

II. Freedom of association

9. Member states should take appropriate measures to ensure, in accordance with Article 11 of the Convention, that the right to freedom of association can be effectively enjoyed without discrimination on grounds of sexual orientation or gender identity; in particular, discriminatory administrative procedures, including excessive formalities for the registration and practical functioning of associations, should be prevented and removed; measures should also be taken to prevent the abuse of legal and administrative provisions, such as those related to restrictions based on public health, public morality and public order.

10. Access to public funding available for non-governmental organisations should be secured without discrimination on grounds of sexual orientation or gender identity.

11. Member states should take appropriate measures to effectively protect defenders of human rights of lesbian, gay, bisexual and transgender persons against hostility and aggression to which they may be exposed, including when allegedly committed by state agents, in order to enable them to freely carry out their activities in accordance with the Declaration of the Committee of Ministers on Council of Europe action to improve the protection of human rights defenders and promote their activities.

12. Member states should ensure that non-governmental organisations defending the human rights of lesbian, gay, bisexual and transgender persons are appropriately consulted on the adoption and implementation of measures that may have an impact on the human rights of these persons.

III. Freedom of expression and peaceful assembly

13. Member states should take appropriate measures to ensure, in accordance with Article 10 of the Convention, that the right to freedom of expression can be effectively enjoyed, without discrimination on grounds of sexual orientation or gender identity, including with respect to the freedom to receive and impart information on subjects dealing with sexual orientation or gender identity.

14. Member states should take appropriate measures at national, regional and local levels to ensure that the right to freedom of peaceful assembly, as enshrined in Article 11 of the Convention, can be effectively enjoyed, without discrimination on grounds of sexual orientation or gender identity.

15. Member states should ensure that law enforcement authorities take appropriate measures to protect participants in peaceful demonstrations in favour of the human rights of lesbian, gay, bisexual and transgender persons from any attempts to unlawfully disrupt or inhibit the effective enjoyment of their right to freedom of expression and peaceful assembly.

16. Member states should take appropriate measures to prevent restrictions on the effective enjoyment of the rights to freedom of expression and peaceful assembly resulting from the abuse of legal or administrative provisions, for example on grounds of public health, public morality and public order.

17. Public authorities at all levels should be encouraged to publicly condemn, notably in the media, any unlawful interferences with the right of individuals and groups of individuals to exercise their freedom of expression and peaceful assembly, notably when related to the human rights of lesbian, gay, bisexual and transgender persons.

IV. Right to respect for private and family life

18. Member states should ensure that any discriminatory legislation criminalising same-sex sexual acts between consenting adults, including any differences with respect to the age of consent for same-sex sexual acts and heterosexual acts, are repealed; they should also take appropriate measures to ensure that criminal law provisions which, because of their wording, may lead to a discriminatory application are either repealed, amended or applied in a manner which is compatible with the principle of non-discrimination.

19. Member states should ensure that personal data referring to a person’s sexual orientation or gender identity are not collected, stored or otherwise used by public institutions including in particular within law enforcement structures, except where this is necessary for the performance of specific, lawful and legitimate purposes; existing records which do not comply with these principles should be destroyed.

20. Prior requirements, including changes of a physical nature, for legal recognition of a gender reassignment, should be regularly reviewed in order to remove abusive requirements.

21. Member states should take appropriate measures to guarantee the full legal recognition of a person’s gender reassignment in all areas of life, in particular by making possible the change of name and gender in official documents in a quick, transparent and accessible way; member states should also ensure, where appropriate, the corresponding recognition and changes by non-state actors with respect to key documents, such as educational or work certificates.

22. Member states should take all necessary measures to ensure that, once gender reassignment has been completed and legally recognised in accordance with paragraphs 20 and 21 above, the right of transgender persons to marry a person of the sex opposite to their reassigned sex is effectively guaranteed.

23. Where national legislation confers rights and obligations on unmarried couples, member states should ensure that it applies in a non-discriminatory way to both same-sex and different-sex couples, including with respect to survivor’s pension benefits and tenancy rights.

24. Where national legislation recognises registered same-sex partnerships, member states should seek to ensure that their legal status and their rights and obligations are equivalent to those of heterosexual couples in a comparable situation.

25. Where national legislation does not recognise nor confer rights or obligations on registered same-sex partnerships and unmarried couples, member states are invited to consider the possibility of providing, without discrimination of any kind, including against different sex couples, same-sex couples with legal or other means to address the practical problems related to the social reality in which they live.

26. Taking into account that the child’s best interests should be the primary consideration in decisions regarding the parental responsibility for, or guardianship of a child, member states should ensure that such decisions are taken without discrimination based on sexual orientation or gender identity.

27. Taking into account that the child’s best interests should be the primary consideration in decisions regarding adoption of a child, member states whose national legislation permits single individuals to adopt children should ensure that the law is applied without discrimination based on sexual orientation or gender identity.

28. Where national law permits assisted reproductive treatment for single women, member states should seek to ensure access to such treatment without discrimination on grounds of sexual orientation.

V. Employment

29. Member states should ensure the establishment and implementation of appropriate measures which provide effective protection against discrimination on grounds of sexual orientation or gender identity in employment and occupation in the public as well as in the private sector. These measures should cover conditions for access to employment and promotion, dismissals, pay and other working conditions, including the prevention, combating and punishment of harassment and other forms of victimisation.

30. Particular attention should be paid to providing effective protection of the right to privacy of transgender individuals in the context of employment, in particular regarding employment applications, to avoid any irrelevant disclosure of their gender history or their former name to the employer and other employees.

VI. Education

31. Taking into due account the over-riding interests of the child, member states should take appropriate legislative and other measures, addressed to educational staff and pupils, to ensure that the right to education can be effectively enjoyed without discrimination on grounds of sexual orientation or gender identity; this includes, in particular, safeguarding the right of children and youth to education in a safe environment, free from violence, bullying, social exclusion or other forms of discriminatory and degrading treatment related to sexual orientation or gender identity.

32. Taking into due account the over-riding interests of the child, appropriate measures should be taken to this effect at all levels to promote mutual tolerance and respect in schools, regardless of sexual orientation or gender identity. This should include providing objective information with respect to sexual orientation and gender identity, for instance in school curricula and educational materials, and providing pupils and students with the necessary information, protection and support to enable them to live in accordance with their sexual orientation and gender identity. Furthermore, member states may design and implement school equality and safety policies and action plans and may ensure access to adequate anti-discrimination training or support and teaching aids. Such measures should take into account the rights of parents regarding education of their children.

VII. Health

33. Member states should take appropriate legislative and other measures to ensure that the highest attainable standard of health can be effectively enjoyed without discrimination on grounds of sexual orientation or gender identity; in particular, they should take into account the specific needs of lesbian, gay, bisexual and transgender persons in the development of national health plans including suicide prevention measures, health surveys, medical curricula, training courses and materials, and when monitoring and evaluating the quality of health-care services.

34. Appropriate measures should be taken in order to avoid the classification of homosexuality as an illness, in accordance with the standards of the World Health Organisation.

35. Member states should take appropriate measures to ensure that transgender persons have effective access to appropriate gender reassignment services, including psychological, endocrinological and surgical expertise in the field of transgender health care, without being subject to unreasonable requirements; no person should be subjected to gender reassignment procedures without his or her consent.

36. Member states should take appropriate legislative and other measures to ensure that any decisions limiting the costs covered by health insurance for gender reassignment procedures should be lawful, objective and proportionate.

VIII. Housing

37. Measures should be taken to ensure that access to adequate housing can be effectively and equally enjoyed by all persons, without discrimination on grounds of sexual orientation or gender identity; such measures should in particular seek to provide protection against discriminatory evictions, and to guarantee equal rights to acquire and retain ownership of land and other property.

38. Appropriate attention should be paid to the risks of homelessness faced by lesbian, gay, bisexual and transgender persons, including young persons and children who may be particularly vulnerable to social exclusion, including from their own families; in this respect, the relevant social services should be provided on the basis of an objective assessment of the needs of every individual, without discrimination.

IX. Sports

39. Homophobia, transphobia and discrimination on grounds of sexual orientation or gender identity in sports are, like racism and other forms of discrimination, unacceptable and should be combated.

40. Sport activities and facilities should be open to all without discrimination on grounds of sexual orientation or gender identity; in particular, effective measures should be taken to prevent, counteract and punish the use of discriminatory insults with reference to sexual orientation or gender identity during and in connection with sports events.

41. Member states should encourage dialogue with and support sports associations and fan clubs in developing awareness-raising activities regarding discrimination against lesbian, gay, bisexual and transgender persons in sport and in condemning manifestations of intolerance towards them.

X. Right to seek asylum

42. In cases where member states have international obligations in this respect, they should recognise that a well-founded fear of persecution based on sexual orientation or gender identity may be a valid ground for the granting of refugee status and asylum under national law.

43. Member states should ensure particularly that asylum seekers are not sent to a country where their life or freedom would be threatened or they face the risk of torture, inhuman or degrading treatment or punishment, on grounds of sexual orientation or gender identity.

44. Asylum seekers should be protected from any discriminatory policies or practices on grounds of sexual orientation or gender identity; in particular, appropriate measures should be taken to prevent risks of physical violence, including sexual abuse, verbal aggression or other forms of harassment against asylum seekers deprived of their liberty, and to ensure their access to information relevant to their particular situation.

XI. National human rights structures

45. Member states should ensure that national human rights structures are clearly mandated to address discrimination on grounds of sexual orientation or gender identity; in particular, they should be able to make recommendations on legislation and policies, raise awareness amongst the general public, as well as – as far as national law so provides – examine individual complaints regarding both the private and public sector and initiate or participate in court proceedings.

XII. Discrimination on multiple grounds

46. Member states are encouraged to take measures to ensure that legal provisions in national law prohibiting or preventing discrimination also protect against discrimination on multiple grounds, including on grounds of sexual orientation or gender identity; national human rights structures should have a broad mandate to enable them to tackle such issues.

Appendix 11
(Item 5.1)

Reply to Parliamentary Assembly Recommendation 1855 (2009) on
“The regulation of audiovisual media services”

(Adopted by the Committee of Ministers on 31 March 2010
at the 1081st meeting of the Ministers’ Deputies)

1. The Committee of Ministers has examined Parliamentary Assembly Recommendation 1855 (2009) on “The regulation of audiovisual media services”. It has drawn the attention of its member states to the recommendation and has forwarded it to its Steering Committee on the Media and New Communication Services (CDMC) and to the Committee of the Convention on Cybercrime (T-CY) for information and possible comments. The CDMC’s opinion is appended to this reply (Appendix 1).

2. In addition, at their 1048th meeting (11 February 2009), the Ministers’ Deputies agreed to bring Recommendation 1855 (2009) to the attention of the Standing Committee on Transfrontier Television (T-TT), asking the T-TT to supply information about the action taken on the recommendation at the time of transmission of a draft amending Protocol to the European Convention on Transfrontier Television. In October 2009, the draft Protocol was submitted to the Deputies for adoption; the T-TT’s comments which are contained in Appendix 2 were also submitted to the Deputies on that occasion. Following a request for postponement, the decision to transmit the draft Protocol to the Parliamentary Assembly for an opinion is still pending.

3. The Committee of Ministers wishes to recall the many and varied activities which have been undertaken – and will continue to be undertaken – under its authority in the media field. Concerning the future work of the Council of Europe, the Committee of Ministers recalls that on 8 July 2009, it adopted terms of reference for several bodies answerable to the CDMC which could permit the future adoption of major policy instruments (for example recommendations or declarations of the Committee of Ministers). It refers in particular to the terms of reference of a Committee of Experts on New Media (MC-NM) responsible for preparing in 2010 a policy document redefining the concept of media in order to include the new media and mass communication services akin to media and the service suppliers concerned.

4. The Committee of Ministers also wishes to draw attention to the texts adopted at the 1st Council of Europe Conference of Ministers responsible for Media and New Communication Services (Reykjavik, 28-29 May 2009), texts which the Committee has transmitted to the Parliamentary Assembly for information at its 1068th meeting (21 October 2009). The Committee has since then made the necessary arrangements to implement the actions envisaged in these texts. In particular, it has invited the CDMC to ensure multi-stakeholder participation in carrying out the relevant parts of its terms of reference and, in the framework of its activity, to give priority attention to the preparation of legal instruments designed (i) to maintain or strengthen protection of the transfrontier flow of Internet traffic and (ii) to protect the resources which are essential to the Internet’s continuous functioning, transfrontier character and integrity (that is, crucial Internet resources).

5. The Committee welcomes the Assembly’s interest in increasing international co-operation to combat illegal content. It recalls nonetheless that the Convention on Cybercrime (ETS No. 185) already covers an offence relating to the production or distribution of child pornography (Article 9) and makes provision for establishing as criminal offences infringements of intellectual property and related rights (Article 10). Besides, the additional Protocol to the Convention, adopted in 2003, extends the scope of the Convention, including that of international co-operation, so that offences concerning racist and xenophobic propaganda are also covered. In these circumstances, it appears that the preparation of a new protocol to the Convention is not called for.

Appendix 1 to the reply

Comments of the Steering Committee on the Media and New Communication Services (CDMC)

1. The CDMC warmly welcomes Parliamentary Assembly Recommendation 1855 (2009) on “The regulation of audiovisual media services”. It broadly agrees with the Assembly’s position as regards the revision of the European Convention on Transfrontier Television. Moreover, the CDMC especially appreciates the Assembly’s foresight in respect of certain emerging issues which, while broadly related to audiovisual media services, may well exceed the current understanding of what those services are.

In line with the CDMC’s own thinking, the recommendation also signals new areas for Council of Europe work linked to the freedom of expression and information regardless of frontiers guaranteed by Article 10 of the European Convention on Human Rights.

The CDMC believes that the Parliamentary Assembly recommendations merit favourable consideration from various bodies concerned, having also regard to the observations set out below.

2. The CDMC notes that the Parliamentary Assembly considers that Internet radio or Web television should not be subject to licensing. The CDMC has not had the opportunity to gather information on the situation across Europe on this subject or to hold an in-depth discussion on the subject. It notes that Article 10 of the European Convention on Human Rights permits states to require the licensing of broadcasting, television or cinema enterprises. The CDMC understands from the relevant case law of the European Court of Human Rights that licensing may be used as an instrument to manage limited resources (e.g. in terms of radio-frequency spectrum) in the common interest (i.e. so as to ensure media pluralism and diversity). However, all such measures must meet the tests of legality, necessity in a democratic society and proportionality. It goes without saying that regulation concerning Internet radio and Web television must meet these general requirements. The CDMC will have to come back to this issue in the future.

3. The CDMC notes the Parliamentary Assembly’s support for the Committee of Ministers’ Declaration on the allocation and management of the digital dividend and the public interest, adopted on 20 February 2008 (cf. paragraph 7 of the recommendation). Council of Europe member states should indeed be encouraged to have regard to this important declaration when participating in the activities of relevant international bodies (e.g. those referred to in paragraph 14 of the recommendation, as well as the European Conference of Postal and Telecommunications Administrations – CEPT).

4. The CDMC fully endorses the remarks made in paragraph 9 of the recommendation. It would add that there should be broad alignment between the provisions of the European Union Directive on Audiovisual Media Services and the European Convention on Transfrontier Television; it would be undesirable and unworkable for member states to be bound by two conflicting regulatory frameworks.

Against this background, it should be borne in mind that Council of Europe member states which are party to the European Convention on Transfrontier Television and that are also bound by European Union law must apply the latter in full compliance with the provisions of the European Convention on Human Rights and the relevant case law of the European Court of Human Rights. The Standing Committee on Transfrontier Television (T-TT) must be especially attentive to these requirements during its subsequent interpretative work (including in respect of various recommendations made in paragraph 10 of the Parliamentary Assembly recommendation).

5. It is important that the T-TT should be allocated sufficient resources (cf. paragraph 12.2 of the recommendation) to respond to its real needs and its level of activity.

As already suggested by the Parliamentary Assembly itself (cf. paragraph 10.6 of the recommendation), decisions that may have a bearing on the exercise of the right to freedom of expression and information regardless of frontiers require significant procedural safeguards. In the CDMC’s view, this requirement applies mutatis mutandis to the use by the T-TT of the proposed reinforced powers (cf. paragraph 10, in particular sub-paragraphs 1, 3 and 6, of the recommendation).

6. Due attention has to be paid to Article 10 of the European Convention on Human Rights also in respect of on-demand services and issues relating to circumvention (cf. paragraph 10, sub-paragraphs 4 and 5, of the recommendation). A restriction to the exercise of Article 10 freedoms on the basis of the provisions in the revised European Convention on Transfrontier television and those in the European Union Audiovisual Media Services Directive must, nevertheless, satisfy the Article 10 tests. The T-TT might be invited to provide in due course further guidance on this matter.

7. In line with its own views expressed on past occasions, the CDMC agrees that non-member states should be invited to accede to the revised Convention with a view to extending the scope of this Convention to other countries. Efforts might usefully be made to this end through awareness raising and technical assistance to countries which are at the source of audiovisual media services received within member states or the recipients of equivalent services emanating from Europe. Given common interests in this respect, European Union institutions would be an excellent partner. In the first instance, efforts could focus on selected southern Mediterranean countries, especially those that have already expressed interest in the European Convention on Transfrontier Television. Moreover, the CDMC would underline the importance of encouraging the fourteen Council of Europe member states that have not yet ratified the Convention to do so.

8. In so far as it concerns the CDMC, the recommendation to the Committee of Ministers contained in paragraph 12.4 of the Parliamentary Assembly’s recommendation is very timely. The CDMC is currently finalising the preparation of the 1st Council of Europe Conference of Ministers responsible for Media and New Communication Services that will take place in Reykjavik, Iceland, on 28 and 29 May 2009. It will be the occasion to map out future Council of Europe work on media and new media or comparable media-like mass-communication services. The objective should be to reinforce their protection from undue interference, including in a cross-border context, in compliance with Article 10 of the European Convention on Human Rights and, on the other hand, to ensure that the providers of those services are adequately informed of their duties and responsibilities which also stem from Article 10.

Furthermore, a people-centred approach also requires that individuals are allowed to exercise their right to free expression and information and use new communication services to participate in social, political, cultural and economic life without undue restriction. Enabling them to exercise their rights without infringing the rights of others requires, as proposed by the Parliamentary Assembly, paying attention, inter alia, to media literacy.

9. The Parliamentary Assembly recommendation “to analyse the feasibility of elaborating common standards among Council of Europe member states for both commercial audiovisual content which are falling outside the revised Convention on Transfrontier Television and for publicly shared user generated audiovisual content” merits particular attention. The CDMC trusts that the Ministers who will participate in the above-mentioned Reykjavik Conference will consider this matter and, if appropriate, offer the necessary political backing for this standard-setting activity.

10. Finally, it is expected that issues referred to in paragraph 13 of the Parliamentary Assembly recommendation, in particular in sub-paragraph 3 thereof, will feature among the topics to be addressed during the above-mentioned Ministerial Conference and its outcomes.

11. The CDMC looks forward to further discussions on at least some of the above matters at the Reykjavik Conference. In view of this, it feels that it would be desirable that representatives of the Parliamentary Assembly – who will be present in Reykjavik for a Sub-Committee on the Media meeting just before the Ministerial Conference – also attend and take part in the 1st Council of Europe Conference of Ministers responsible for Media and New Communication Services.

Appendix 2 to the reply

Comments of the Standing Committee on Transfrontier Television (T-TT)

10.1 The possibilities for guiding the interpretation and supervising the application of this new convention should be reinforced

The Standing Committee supports the view of the Assembly that the new Council of Europe convention, revising the European Convention on Transfrontier Television (draft revised convention, consolidated text in CM(2009)144 add3), should provide sufficient guidance to its Parties in interpreting and applying its provisions, and in particular in determining what is and what is not included within its scope. The Standing Committee is of the opinion that the explanations contained in the explanatory report to the draft revised convention (CM(2009)144 add4) fulfil this role in a satisfactory manner. Reference is made in particular to paragraphs 88 to 149 of this report. It is furthermore recalled that one of the principal functions of the Standing Committee is to make recommendations to the Parties concerning the application of the convention. It is also possible that questions concerning its interpretation will arise, all the more so since the convention deals with an area which is subject to rapid changes. Article 25 of the draft revised convention empowers the Standing Committee to examine any such question raised by a Party.

10.2 The “public service mission” for audiovisual media services should be defined and explained

The Standing Committee recalls that the purpose of the convention is not to regulate the provision and activities of audiovisual media services as a whole, nor is it designed to harmonise the Parties’ rules on this issue. It aims to lay down basic standards by which audiovisual media services may enjoy unhindered transfrontier circulation. The Standing Committee concludes that this convention is not the appropriate legal instrument to give an answer to the questions surrounding the definition of “public service mission” of media services. It furthermore underlines that there is no common European definition of public service media and/or mission. The Standing Committee notes that the explanatory report to Article 12, paragraph 3, of the draft revised convention (paragraph 272) refers to the contents of Recommendation Rec(2007)3 of the Committee of Ministers on the remit of public service media in the information society which contains guidance on the key elements of the public service remit. Paragraph 273 of the explanatory report explains that “broadcasters who have a public service mission may include privately-owned broadcasters whose licences or other conditions of operation require them to transmit programming which is of benefit to cultural, educational, or other public objectives”.

10.3 The role of the Standing Committee should be re-examined with regard to its supervisory function over the compliance of conventional obligations

It is recalled that the convention confers the Standing Committee functions related to the interpretation and application of the convention. They are listed in Article 25 of the draft revised convention and include the possibility to make recommendations to the Parties on the application of the convention, examine questions concerning the interpretation of the convention and secure friendly settlement of any difficulty referred to it in the context of the conciliation procedure foreseen under Article 30 of the draft. It is acknowledged that, with regard to alleged violation of the convention, the Standing Committee has until now had a purely advisory role, including in the conciliation procedure. This role of the Standing Committee seems still adequate in most cases, including in the case of alleged violations of the draft revised convention by broadcasting services (Article 28 of the draft). The Standing Committee shares however the viewpoint that it should be given an increased supervisory role with regard to possible measures against programmes in on-demand services (Article 29 of the draft) or against broadcasters who established themselves in the jurisdiction of another Party in order to circumvent the stricter rules, in the field covered by the convention, of the Party to the territory of which their television broadcast is wholly or mostly directed (Article 33 of the draft). The Standing Committee notes that measures in the context of Articles 29 and 33 leave a wider margin of interpretation to Parties, as compared to television broadcast (Article 28 of the draft). It underlines that the draft convention now foresees to introduce a procedure whereby Parties will notify any measures they

envisage to take on the basis of Articles 29 or 33 to the Standing Committee in view of an opinion and that they will refrain from taking them if the Standing Committee comes to the conclusion that the measures are incompatible with the convention. In case of provisional and urgent measures foreseen under Article 29, paragraph 2, Parties will notify these measures to the Standing Committee in the shortest time possible and will urgently put an end to them if the Standing Committee concludes that they are incompatible with the convention.

10.4 The transmission of on-demand audiovisual media services should be treated in a comparable way to television broadcast and should not be subjected to the more restrictive provisions taken from the AVMS Directive of the European Union24

The Standing Committee notes that, in the draft revised convention (as in the corresponding European Union Directive), regulation of transfrontier aspects of on-demand services is less strict, offering more flexibility to the Parties with regard to the duties of service providers and protection of the viewer. The reason for this distinction (as explained in paragraphs 72 and 414 of the explanatory report to the draft convention) is the fact that the viewer has more control over on-demand programmes since the viewer chooses what to see and at which moment. On-demand television is also less invasive, it does not operate at a schedule decided by the media provider and lacks the immediacy and suggestive power of (live) broadcasts. The provisions of draft Article 29 have partly been aligned with the corresponding AVMS Directive (Article 2a.4) and allow Parties to take measures not only in case of violation of the convention but also of stricter national law. The measures referred to have to be notified to the Standing Committee with a view to a previous opinion and may not be taken or pursued (in the case of emergency procedures) if the Standing Committee comes to the conclusion that the measure is incompatible with the convention.

The general objective of this convention, as defined in its draft Article 3, is to ensure freedom of expression and information via the free circulation of audiovisual media services which comply with the terms of the convention. Although draft Article 29 gives receiving Parties a wide margin of appreciation with regard to the restriction of on-demand audiovisual services from other state Parties, its paragraph 4 makes it clear that any measures which might be taken by the Parties under this Article must nevertheless comply with Article 10 of the European Convention on Human Rights, as interpreted by the European Court of Human Rights. This implies that such measures respect the requirements laid down by the European Court of Human Rights to accept a restriction to freedom of expression and information. In this context, the proportionality requirement is particularly important and subject to careful examination. The explanatory report to the draft convention gives further guidance on this issue (paragraph 438).

For European Union member states and for transfrontier media providers, compatibility of the convention with the Audiovisual Media Services Directive is of paramount importance. In order to ensure the necessary coherence and to avoid inconsistency between these instruments, the terms employed (draft Article 2) and provisions on issues of common concern have been aligned with the AVMS Directive. This is also the case of this provision. Alignment has been realised to the extent possible taking into account the difference in nature between both instruments as well as the common interest of all the Parties to the convention, whether they are member states of the European Union or not.

10.5 Guidance should be provided regarding the requirement of programme services of broadcasters being “wholly or mostly” directed towards the territory of a Party with the intention of circumventing the national laws of that Party

The Standing Committee is of the opinion that the guidance provided in the explanatory report to the draft convention meets the needs of the Parties on this question (see in particular paragraphs 458 as well as 347 to 357). The report states that “The assessment of whether a television broadcast is wholly or mostly directed at the territory of another Party should be made on a case-by-case basis. Significant indicators might include the main language of the service, the origin of the television advertising or subscription revenues, and the existence of programmes or commercial communications targeted specifically at the public in the other Party.”

10.6 Procedural safeguards, such as a prior opinion from the Standing Committee or arbitration, should be required before a Party can take measures directed against a broadcaster established abroad for having allegedly circumvented the receiving Party’s national laws, as far as such measures restrict the right to freedom of information through audiovisual media services

The Standing Committee supports this recommendation and observes that the draft convention now foresees to introduce in its draft Article 33 a procedure whereby Parties will refrain from taking such measures without a previous opinion by the Standing Committee. Reference is furthermore made to the comments on Recommendation 10.3 above.

Appendix 12
(Item 6.1)

Reply to Parliamentary Assembly Recommendation 1850 (2008) on
“Europe’s “boat-people”: mixed migration flows by sea into southern Europe”

(Adopted by the Committee of Ministers on 31 March 2010
at the 1081st meeting of the Ministers’ Deputies)

1 The Committee of Ministers has given careful consideration to Parliamentary Assembly Recommendation 1850 (2008) on “Europe’s “boat-people”: mixed migration flows by sea into southern Europe”, together with Resolution 1637 (2008). It has brought the recommendation to the attention of the governments of member states and has transmitted it to the relevant steering committees,25 whose comments have been taken into account in this reply. The response of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) is appended to this reply.

2. The Committee of Ministers shares the concerns of the Assembly regarding the situation of rising numbers of irregular migrants, refugees and asylum seekers arriving in southern Europe. It is also concerned at the related causes and implications, particularly for the most affected countries. In this respect, it recognises that the involvement of organised crime in international trafficking constitutes an aggravating factor.

3. The Committee of Ministers reaffirms the position outlined in the Action Plan adopted by the Third Summit of Heads of State and Government of the Council of Europe (Warsaw, May 2005) in this sector. The Council of Europe continues its efforts in developing and implementing policies on migration and the integration of regular migrants, particularly from and to member states but also from non-member states, that are founded on the principles of human rights, democracy and the rule of law, with a view to ensuring orderly migration, social cohesion and the respect of the individual.

4. The Committee of Ministers is aware that irregular migrants arriving by boat in certain member states, but also by land or by air, may be vulnerable, and that member states must ensure that holding centres function properly.

5. The Committee of Ministers has taken note of the proposal that guidelines be prepared for minimum standards to be applied to the detention of irregular migrants and asylum seekers. However, the Committee of Ministers has not, at the present time, reached a common position with regard to examining possibilities for Council of Europe action in this area. The Committee of Ministers underlines the importance of the relevant instruments of the Council of Europe, such as the European Convention on Human Rights and the recommendations adopted by the Committee of Ministers in this field (see paragraph 9 below), as well as those emerging from the work of the CPT and the Commissioner for Human Rights. It notes the ongoing work in the European Union in this field, including the revision under way of the 2003 directive laying down minimum standards for the reception of asylum seekers.

The Committee of Ministers will bear in mind the proposals outlined by the Assembly relating to co-operation and assistance programmes (paragraph 5.3), training (paragraph 5.4) and with regard to a round table to be organised with directors and high-ranking officials of such reception and holding centres (paragraph 5.2).

6. Particularly significant instruments in this field, also to be borne in mind in the framework of any possible activity in this area, include Committee of Ministers’ Recommendation No. R (98) 13 of 18 September 1998 on the right of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of Article 3 of the European Convention on Human Rights, Recommendation No. R (98) 15 on the training of officials who first come into contact with asylum seekers, in particular at border points and Recommendation Rec(2003)5 on measures of detention of asylum seekers. The Committee of Ministers would also signal the “Twenty guidelines on forced return”26 adopted on 20 May 2005 and the Guidelines on human rights protection in the context of accelerated asylum procedures adopted on 1 July 2009.

7. The Committee of Ministers would also refer to other texts relevant in this area, such as its reply to Parliamentary Assembly Recommendation 1755 (2006) on “Human rights of irregular migrants” in which it draws attention to the minimum safeguards provided for in the European Convention on Human Rights that can be applied to irregular migrants. It also recalls its Recommendation No. R (2000) 3 to member states on the right to satisfaction of basic material needs of persons in situations of extreme hardship, which provides a minimum threshold of rights which should be recognised regardless of their status.

8. The Committee of Ministers would also inform the Assembly that, following the adoption of “Resolution No. 1 on access to justice for migrants and asylum seekers” by the European Ministers of Justice during their 28th Ministerial Conference (Lanzarote, Spain, 25-26 October 2007), it entrusted the relevant intergovernmental bodies to examine, inter alia, access to justice for migrants and asylum seekers by identifying means and measures with a view to facilitating and ensuring this access, including the provision of legal aid and assistance. In this context, a study on access to justice for migrants and asylum seekers has been prepared which identifies existing gaps, both in law and in practice, in the legal protection of this group of vulnerable people. The follow-up to be given to this study is currently under examination.

9. Furthermore, the Committee of Ministers draws the Assembly’s attention to a report produced by the CDCJ on non-criminal remedies for victims of crime which considers the most vulnerable victims such as those found under point 9.6 of Resolution 1637 (2008) of the Parliamentary Assembly and proposes civil law measures that could be presented in the framework of standard-setting, information and awareness-raising activities.

10. The Committee of Ministers would also draw attention to the extensive work of the Commissioner for Human Rights in this field and to his recommendations to member states and his appeals for solidarity within Europe with those countries that are on the frontline and facing a very difficult situation. It also refers to the regular exchanges of views that it holds with the Commissioner during the year. These exchanges are both of a general nature but also concern specific country reports in which he addresses, inter alia, the protection of human rights of immigrants and asylum seekers, including, where relevant, those arriving by sea. Migratory flows present major challenges to many European countries which must be met in a spirit of mutual responsibility and solidarity. In this context, the Committee of Ministers welcomes bilateral projects, such as the present community pilot project for reallocation of beneficiaries of international protection from Malta, aiming at concrete action to be taken in order to put mutual responsibility and solidarity into practice.

11. Finally, with a view to promoting the use of the tools already available on the international level to further protect the growing numbers of migrant populations, and curb the influx of irregular migrants, the Committee of Ministers invites those member states who have not yet done so to consider ratifying the Council of Europe Convention on Action against Trafficking in Human Beings and the United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organised Crime, as well as the European Convention on the Legal Status of Migrant Workers.

Appendix to the reply

Comments from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)

1. The CPT is grateful to the Ministers’ Deputies for having communicated to it for information and possible comments Recommendation 1850 (2008) of the Council of Europe Parliamentary Assembly on “Europe’s “boat-people”: mixed migration flows by sea into southern Europe”.

2. The CPT first wishes to point out that, from its inception, it has devoted continuous attention to the situation of persons deprived of their liberty under laws relating to the admission and residence of foreigners in the states party to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. These efforts were further stepped up in the early years of this decade when the first large influxes of irregular migrants arriving by boat on the coasts of southern Europe were reported, and repeated visits have been made to holding centres for irregular migrants and asylum-seekers, notably in Greece, Italy, Malta, Spain and Turkey.

3. With regard to the recommendation in paragraph 5.1, the CPT is willing to support any initiative taken by the Committee of Ministers to prepare guidelines for minimum standards to be applied to the detention of irregular migrants and asylum-seekers. In this connection, it draws attention to the standards which it disseminated as far back as 1997 in its 7th general activity report and more recently in its 19th general activity report.

4. With regard to the recommendation in paragraph 5.5, the CPT reiterates its intention of continuing to monitor very closely the situation in holding centres for irregular migrants and asylum-seekers in southern Europe. In this context, particular attention will be focused on large-scale arrivals of irregular migrants and asylum-seekers and their consequences, and on facilities not yet visited by the CPT.

Appendix 13
(Item 6.2)

Recommendation CM/Rec(2010)6
of the Committee of Ministers to member states
on good governance in health systems

(Adopted by the Committee of Ministers on 31 March 2010
at the 1081st meeting of the Ministers’ Deputies)

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

Recalling the Warsaw Declaration (2005) wherein it is stated that: “effective democracy and good governance at all levels are essential for preventing conflicts, promoting stability, facilitating economic and social progress”;

Having regard to its Recommendation CM/Rec(2007)7 to member states on good administration, its Recommendation No. R (2000) 10 on codes of conduct for public officials, and its Recommendation No. R (97) 17 on the development and implementation of quality improvement systems (QIS) in health care, wherein member states are encouraged to create, where appropriate, policies and structures that support the development and implementation of such systems;

Building on the achievements of the Council of Europe in fighting corruption, notably by the Group of States against Corruption (GRECO), and promoting good administration;

Bearing in mind the contributions brought to the field of good governance in health systems by, in particular, the European Healthcare Fraud and Corruption Network (EHFCN) and Transparency International;

Noting the relevance of the World Health Organisation’s resolutions and decisions, in particular the Ljubljana Charter on reforming health care (1996), the Health for All Policy Framework (2005) and the Tallinn Charter: Health Systems for Health and Wealth (2008);

Recognising that good governance should be driven by the fundamental values of human rights, the rule of law and democracy;

Recalling Part I of the (Revised) European Social Charter (revised) (ETS No. 163) which provides that the Parties thereto accept as the aim of their policy, to be pursued by all appropriate means both national and international in character, the attainment of conditions in which the right of everyone to benefit from any measures enabling him to enjoy the highest possible standard of health attainable may be effectively realised;

Recalling the Convention on the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (ETS No. 164), in particular:

- Article 1 on the protection of the dignity and identity of all human beings and on guaranteeing everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms;
- Article 2 on the primacy of the interests and welfare of the human being over the sole interest of society;
- Article 3 on the equitable access to health care of appropriate quality;
- Article 4 stating that any intervention in the health field must be carried out in accordance with relevant professional obligations and standards;
- Article 28 stipulating that the fundamental questions raised by the developments of biology and medicine are the subject of appropriate public discussion and that their possible application is made the subject of appropriate consultation; and
- Chapter V on scientific research;

Considering that there are values of good governance which are particularly important in the context of health systems, namely universality, solidarity and equity;

Recognising that the key principles of good governance in public services have a special relevance for health systems, in particular transparency, participation, accountability, effectiveness, efficiency and quality;

Recognising that good governance in health systems cannot be achieved without a long-term strategy and a commitment to achieving political legitimacy, social cohesion and sustainability;

Bearing in mind that decision-making processes should be participatory and transparent to all stakeholders, in particular for citizens;

Recognising the importance of promoting a culture of good governance, as well as developing capacities for policy analysis, advocacy and intersectorial action for health;

Considering that policy making and planning should be informed by the best knowledge available on the issues at hand, including contributions from all relevant disciplines and experiences;

Recognising that a good governance system should contain built-in mechanisms for monitoring and evaluation, as well as performance assessment of the health system based on clear objectives;

Considering that policy making for health systems, like other public governance, should incorporate health impact assessments applied both within health services and in relation to the determinants of health in other policies which can influence health;

Considering that ethical aspects play a particularly important role in achieving good governance in health systems by fostering a culture of integrity and finding appropriate ways of framing codes of conduct, monitoring good governance, managing conflicts of interest and taking measures to prevent and counter fraud and corruption;

Considering that the good governance principles mentioned above apply to the public and private sectors of the health system and to all levels of governance (national, regional and local) following the principle of subsidiarity by focusing on an optimal division of tasks between the relevant levels,

A. Recommends that governments of member states, having due regard to their specific national, regional or local structures and respective responsibilities:

i. take appropriate steps to ensure good governance of health systems that is based on:

- fundamental values of human rights, the rule of law and democracy;
- principles underpinning health systems such as universality, solidarity and equity;
- good governance principles for public services: transparency, accountability, effectiveness, efficiency, and quality;
- ensuring that these values and principles should guide practical action taken at all levels and dimensions of the health system including education, training and monitoring;

ii. respond rapidly and effectively to the changing medical, economic and social environment by ensuring the planning and development of institutional and human good governance capacities;

iii. develop and adopt a set of ethical principles for health system governance, with special emphasis on the structural determinants, legislative guidelines and codes of conduct in health systems, which aim to prevent and counter corruption, manage conflicts of interest and monitor good governance;

iv. support an active dissemination of this recommendation and its explanatory report, targeting in particular policy makers, public administration staff and organisations involved in decision making within the health system;

v. take necessary steps to implement the guidelines contained in the appendix to this recommendation.

B. Entrusts the European Health Committee (CDSP) to monitor and evaluate the implementation of the recommendation in member states.

Appendix to Recommendation CM/Rec(2010)6

GUIDELINES

These guidelines contain:

- a general framework for codes of conduct in the health sector (attachment I);
- a general framework for monitoring governance in the health sector (attachment II); and
- an example of a good governance assessment matrix.

I. Laws and regulations for the good governance of a health system based on fundamental values and principles

1. In all member states, the legislative framework of any given health system should be based on the three fundamental values of the Council of Europe: human rights and human dignity, the rule of law and democracy. To this should be added the right to health protection built on the principles of universality, equity and solidarity.

2. Each member state, taking into account the recommendations of the Council of Europe’s High-Level Task Force on Social Cohesion in the 21st century, should develop a value-based good governance framework for its health system, which should:

- be based on the key principles of accountability, transparency, sustainability and respect for patients’ rights;
- target the prevention of corruption and foster a culture of countering it;
- concentrate efforts on improving the management of conflicts of interest;
- appeal to the shared responsibility of all stakeholders in society.

3. Member states are encouraged to put into place a monitoring system to systematically assess the contribution and adequacy of governance mechanisms, such as legislation, policies and regulatory activities aimed at achieving the goals of good governance.

II. Promoting codes of conduct for good governance of a health system

4. Considering the complexity and the professional nature of health services, health legislation in all member states should be complemented by clear and explicit codes of conduct and other self-regulatory tools.

5. Codes of conduct should be developed for different stakeholders in the health sector, such as administrators, managers, policy makers, professionals and their organisations, as well as for all health-related industries, including the media.

6. Codes of conduct should include effective mechanisms for their implementation, monitoring and enforcement.

7. Codes of conduct for health professionals should include specific clauses on conflicts of interest.

8. Governments of member states should promote, subject to national law and the principles of good public policy, the adoption of codes of conduct for good governance in health systems based on the framework presented in attachment I to this appendix.

III. Monitoring good governance of a health systems

9. Explicit values and principles of good governance should become an integral part of a health system, and a shared vision for all stakeholders should be developed in order to enable their implementation and assessment.

10. Member states are encouraged to develop assessment tools to monitor good governance in health systems. The overall objectives for monitoring good governance should be threefold:

i. to measure governance in health systems at a national as well as organisational level;
ii. to monitor the impact of governance from the perspectives of all stakeholders;
iii. to raise awareness and promote a common understanding of governance in health systems.

11. Assessment frameworks should be based on the premise that improved governance influences all other health system functions, which in turn results in improved performance of the health system and ultimately leads to better health outcomes. Therefore the framework could consist of the following components:

- values: human rights, rule of law and democracy;
- principles: universality, equity and solidarity;
- governance mechanisms: planning, decision making, regulation, control and evaluation;
- outcomes: transparency, accountability, access, participation, effectiveness and efficiency.

An example for a possible general framework for monitoring governance in the health sector is presented in attachment II to this appendix.

IV. Managing conflicts of interest in health systems

12. Member states should proactively attempt to identify areas where conflicts of interest in relation to the health system may arise, and to prevent and counter such conflicts, whether caused by public officials or by non-public agents (private sector), by ensuring that private interests do not interfere with the performance of public or private health-related duties.

13. Special attention should be paid to conflicts of interest of those holding public responsibilities. Appropriate legislation should therefore be developed and a culture in public administration fostered requiring public officials to be accountable and personally responsible. Public officials should:

- be alert to any actual or potential conflict of interest, including nepotism;
- take steps to avoid such conflict;
- disclose any conflict of interests as soon as he or she becomes aware of its existence;
- comply with any final decisions to withdraw from the situation or to divest him/or herself of the advantage causing the conflict;
- declare whether or not he or she has a conflict of interest.

14. All candidates applying for employment in the public service sector should be required to declare any possible conflict of interest, and provision should be made to resolve any such conflict in due time before the appointment is decided.

15. At all levels of the health system there should be adequate regulatory and specific organisational measures making it possible to detect conflicts of interest and to take legal or other actions. This should be managed at individual, institutional and national levels.

16. Any potential conflict of interests related to clinical research activities should be registered and monitored by an independent authority. Information should include all relevant financial and non-financial benefits. Clinical research should be monitored by research ethics committees.

17. Scientific and vocational activities, including continuous medical education intended for health professionals should be organised in such a way as to guarantee their integrity and avoid influence from commercial interests.

18. There should be legal provisions for compulsory financial disclosure of expenditures made by commercial healthcare insurers, healthcare providers or health-related industries for marketing their products and services. Such data should be publicly available with the same level of detail as that requested for research and development.

V. A good governance framework against fraud and corruption

19. Fraud and corruption should be explicitly defined and tackled in all relevant regulatory frameworks at every level of the health system, making it an integral part of all health regulations.

20. Member states should consider establishing an independent anti-corruption body, covering all sectors of activities, at national level. Such a body should be able to take legal and other actions should the need arise.

21. To foster a culture of integrity and thus to prevent corruption, fraud and nepotism, a comprehensive and systemic strategy should be in place. This strategy should include:

- specific guidelines for transparency and enforcing mechanisms at every level of the health system, from national to individual institutional level;

- a high level of political priority and public visibility for the fight against corruption and fraud;

- provisions for professional investigation and public reporting of all cases of detected or alleged health system fraud and corruption;

- arrangements for the possible enforcement of multiple sanctions, such as civil, criminal and/or disciplinary processes, should health system fraud and corruption be proved;

- a system of compensation for the resources lost to fraud and corruption, and the return of the recovered losses;

- a national reporting system with periodic reports on the progress made against fraud and corruption.

VI. Preparing health-related professionals for good governance: the education and training of health professionals, administrators, managers and policy makers in value-based good governance in health systems

22. Governments of member states should promote the idea of establishing a framework for the education and training of health-related professionals to include the acquisition of adequate competences for good governance and efficient management of health institutions and programmes.

23. Member states should ensure that a competent post-graduate training institution is available at national level, as well as in large regions, with links to both academic and health administrations. Such an institution should contribute to the dissemination of developments in public health and health-service research, as well as serving as a resource for the development, reform and evaluation of health systems.

* * *

ATTACHMENT I TO THE GUIDELINES

General framework for codes of conduct in the health sector
(as referred to in paragraph 8 of the Guidelines)

1. Introduction

2. Values and ethical references

3. Legal framework of reference

4. Example of areas to be regulated by a code of conduct in the health sector

NB. Not all areas are applicable to all situations. The order of the items does not reflect priority ranking. The list is non-exhaustive and the items are for illustrative purposes only.

a. Good professional practice

    i. Respect for the dignity of people (employees, patients, customers)
    ii. Honesty and confidentiality
    iii. Keeping up-to-date professional competence
    iv. Use of the best scientific evidence
    v. Compliance with accepted standards
    vi. Compliance with regulations and legislation
    vii. Awareness of the needs, demands and expectations of the population, patients and customers
    viii. Co-operation with colleagues
    ix. Spirit of moderation, reconciliation, tolerance and appeasement

b. Use of resources of the service/system

    i. Cost-effectiveness practice in the use of resources
    ii. Avoiding using public resources for private gain
    iii. Prevention of fraud and corruption

c. Handling of conflict of interests in the best interest of patients and population, whether

    i. Economic, or
    ii. Non-economic

d. Proper access, sharing and use of information

    i. Research of any information necessary for decision making
    ii. Duty to disclose all relevant information to the public and authorities
    iii. Duty to provide information to patients with respect to their needs and preferences

e. Handling of gifts and benefits

    i. Existence of an explicit policy concerning gifts
    ii. Transparency regarding gifts received from interested parties

f. Research-related topics

    i. Clinical trials (Helsinki Declaration)
    ii. Truthful claims of research potential
    iii. Patient consent with full disclosure of risks

g. Relationships with other actors in the health sector

    i. Colleagues and other health professionals
    ii. Patients and their families
    iii. Insurers, third-party payers
    iv. Health-related industries (pharmaceutical, food, advertisement, cosmetic, medical devices, etc.), and other interest groups
    v. Government officers of health and other sectors (police)
    vi. Patients and self-help organisations, NGOs, etc.
    vii. Media

h. Good corporate governance of health institutions/services/centres

i. Issues of multiculturalism, tolerance and respect

5. Enforcement of the code of conduct

a. Recognition of violations
b. Composition of the body responsible for dealing with enforcement
c. Transparency of procedures and public scrutiny
d. Complaints system

6. Updating, monitoring and development of the code of conduct

a. Process of development of codes of conducts: initiative, ownership, legitimacy
b. Comprehensiveness
c. Limitations of codes of conduct
d. Codes of conduct and legislation

* * *

ATTACHMENT II TO THE GUIDELINES

General framework for monitoring governance in the health sector
(as referred to in paragraph 12 of the Guidelines)

1. Introduction: a conceptual framework to define, promote and monitor accountability in the field of health policy as both a means of ensuring good governance and as a preventive measure against corruption and other negative issues.

2. Values and principles underpinning the framework: human dignity, equity, solidarity and professional ethics as articulated in the Ljubljana Charter on Reforming Health Care (World Health Organisation, 1996) and the World Bank governance indicators.

3. Scope of the conceptual framework: organisational, regional, national and international monitoring.

4. Objectives of monitoring:

- to serve as a reference framework that can become a common instrument for measuring governance in health systems at international, national and organisational level;
- to observe the impact of governance from the perspectives of all stakeholders;
- to raise awareness, build public confidence, facilitate learning and promote a common understanding of good governance in health systems.

5. Governance mechanisms: recent work carried out, for example, by the WHO and in Canada (Cirano project), demonstrates that a number of mechanisms can be used in exercising political, economic and administrative authority in the management of health systems. This includes mechanisms for planning, resource management, decision making, providing incentives, control, monitoring and evaluation.

6. Examples of areas to be covered by the assessment matrix (see table below):

    a. control of corruption – measuring the ability of state institutions and agencies to tackle fraud and prevent corruption;
    b. transparent and participatory decision making processes – measuring the level and quality of the equal involvement of all stakeholders in decision-making processes;
    c. accountability – measuring the impact of existing arrangements established to achieve accountability for performance;
    d. rule of law – measuring the effective compliance with rules and laws;
    e. open reporting – measuring the openness and willingness of governing bodies to present and share information publicly.

7. Assessment process:

    a. establish an expert group/observatory for governance monitoring;
    b. data collection, using a variety of sources, including existing databases and information such as the World Bank governance indicators and the European Observatory on Health Systems and Policies, or WHO Regional Office for Europe;
    c. self-assessment, including performance indicators and surveying key stakeholders using questionnaires;
    d. reporting and dissemination of findings, through interactive web portals.

8. Enforcement of the framework:

- composition of a body responsible for dealing with enforcement;
- transparency of process; and
- public reporting.

Principle
Governance mechanism
Key outcomes
Outcome indicators
Questions

Transparency
Decision making
Transparent decisions are decisions in which the decision maker clearly presents to others the motivation behind the decisions and explains the reasoning leading to the conclusion (i.e. the actual decision)

Privileged access for industry interests undermines public trust

Central register for lobbyists

National guidelines for consultation process

Complaint and redress mechanism to address concerns
Does a central register for lobbyists exist in this member state?

Has the member state produced a national set of guidelines to ensure transparency in consultative processes?

Does a complaint and redress mechanism exist?

Are inspection reports available to the public?

Participation
Decision making
Participatory decision making implies that each actor has a say in decisions directly proportional to the degree to which the particular decision affects him or her

Patients’ representation at board level of state agencies, for example the national institute for health and welfare

Are patients’ views represented at board level of the member states’ health agencies or institutions?

Accountability
Regulatory interventions – monitoring
Accountability for performance is relevant at all levels, from policy making to clinical practice

Systematic approach to assure quality and safety

Code of conduct to govern the behaviour of health administrators and clinical practitioners

Do national standards exist which aim to assure quality and safety in health services?

Does the member state have a national code of conduct for administrators and clinical practitioners?

Efficiency
Regulatory interventions – monitoring
Achieving greater efficiency and better value for money is a key governance objective
Member states’ activities to detect and counteract fraud and corruption

Capacity for independent technology assessment

Have particular institutions or agencies been established to tackle fraud and corruption?

Do member states’ agencies or institutions participate in the European Healthcare Fraud and Corruption Network (EHFCN)?

Do these institutions have a capacity for independent assessment?

An example of a good governance assessment matrix

+ There were no decisions under this item.

+ There were no decisions under this item.

3 Article 4 of the Regulations stipulates that “this consultation shall take place, unless otherwise agreed to by the Joint Committee, not less than thirty days before the date of the opening of the Session during which the Assembly will be called upon to make the appointment.”

4 Article 5.a of the Regulations stipulates that “unless it has been otherwise agreed after discussion in the Joint Committee, the Committee of Ministers shall draw up a list containing at least two names, which shall be submitted to the Assembly.”

5 Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, Serbia, Slovak Republic, Slovenia, Spain, Sweden, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and United Kingdom.

6 See also document CM/AS(2010)Rec1865 final.

7 See also document CM/AS(2010)Rec1866 final.

8 Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, Serbia, Slovak Republic, Slovenia, Spain, Sweden, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and United Kingdom.

9 See also document CM/AS(2010)Rec1868-1881 final.

10 See also document CM/AS(2010)Rec1855 final.

11 See also document CM/AS(2010)Rec1850 final.

12 In accordance with Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints, the following Contracting Parties to the European Social Charter or the revised European Social Charter have participated in the vote: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, Serbia, Slovak Republic, Slovenia, Spain, Sweden, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and United Kingdom.

13 In accordance with Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints, the following Contracting Parties to the European Social Charter or the revised European Social Charter have participated in the vote: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, Serbia, Slovak Republic, Slovenia, Spain, Sweden, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and United Kingdom.

14 Brannigan and McBride v. United Kingdom, 26 May 1993, para. 43, series A No. 258; A. and others v. United Kingdom, 19 February 2009, application No. 3455/05, para. 173.

15 Lawless v. Ireland, 1 July 1961, series A No. 3, para. 22.

16 Brannigan and McBride v. the United Kingdom, 26 May 1993, para. 43, series A No. 258; A. and others v. the United Kingdom, 19 February 2009, application No. 3455/05, para. 173.

17 CommDH(2009)15 – Strasbourg, 20 March 2009 – Report of the Round Table on the situation of human rights defenders in the member states of the Council of Europe, organised by the Office of the Commissioner for Human Rights
(Strasbourg, 3-4 November 2008)

https://wcd.coe.int/ViewDoc.jsp?id=1427087&Site=CM&BackColorInternet=C3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383
Comm DH(2009)12 – Strasbourg, 22 April 2009 – Annual activity report 2008 by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe presented to the Committee of Ministers and the Parliamentary Assembly
https://wcd.coe.int/ViewDoc.jsp?id=1435141&Site=COE&BackColorInternet=DBDCF2&BackColorIntranet=FDC864&BackColorLogged=FDC864

18 See the statements of the Parliamentary Assembly of the Council of Europe from 16 July and 11 August 2009.

19 CDDH activity report on Council of Europe action to improve the protection of human rights defenders and promote their activities, adopted on 6 February 2008.

20 At the 492nd meeting of the Ministers' Deputies in April 1993, the Deputies “agreed unanimously to the introduction of the rule whereby only representatives of those states which have ratified the Charter vote in the Committee of Ministers when the latter acts as a control organ of the application of the Charter”. The states having ratified the European Social Charter or the European Social Charter (revised) are: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, Serbia, Slovak Republic, Slovenia, Spain, Sweden, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and United Kingdom.

21 At the 492nd meeting of the Ministers' Deputies in April 1993, the Deputies “agreed unanimously to the introduction of the rule whereby only representatives of those states which have ratified the Charter vote in the Committee of Ministers when the latter acts as a control organ of the application of the Charter”. The states having ratified the European Social Charter or the European Social Charter (revised) are: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, Serbia, Slovak Republic, Slovenia, Spain, Sweden, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and United Kingdom.

22 Recommendation 1868 (2009): Steering committee for Equality between Women and Men (CDEG), Steering Committee for Human Rights (CDDH), Ad hoc Committee on preventing and combating violence against women and domestic violence (CAHVIO) and Executive Council of the North South Centre, for information and possible comments..
Recommendation 1881 (2009): European Committee on Crime Problems (CDPC), Steering Committee for Equality between Women and Men (CDEG) and Steering Committee for Human Rights (CDDH), for information and possible comments, and Ad hoc Committee on preventing and combating violence against women and domestic violence (CAHVIO), for information.

23 Opuz v. Turkey, application No. 33401/02, judgment of chamber of 9 June 2009; Abdulaziz, Cabales and Balkandali v. United Kingdom, application No’s. 9214/80, 9473/81 and 9474/81, judgment of 28 May 1985.

24 Audiovisual Media Services Directive (AVMS). Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007, amending Council Directive 89/552/EEC, on the co-ordination of certain provisions laid down by law, regulation or administrative action in member states concerning the provision of audiovisual media services.

25 The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), the European Committee on Migration (CDMG), the Steering Committee for Human Rights (CDDH) and the European Committee on Legal Co-operation (CDCJ).

26 CM(2005)40 final.


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