Ministers' Deputies / Rapporteur Groups
Rapporteur Group on Legal Co-operation
GR-J(2009)CB2 26 February 20091
Meeting of 17 February 2009
The Rapporteur Group on Legal Co-operation (GR-J) met on 17 February 2009 with Ambassador Emil Kuchar, Permanent Representative of the Slovak Republic, in the chair. The agenda (GR-J(2009)OJ2) was adopted.
03/09 Evaluation of the implementation of Recommendation CM/Rec(2007)14 on the legal status of non-governmental organisations in Europe
GR-J(2008)10, Conference of INGO: Expert Council on NGO Law - First annual report CONF/PLE(2009)REC1*, OING Conf/Exp (2009)1*
The Chair invited Mr Jean-Marie Heydt, President of the Conference of INGOs of the Council of Europe, and Mr Jeremy McBride, coordinator of the Expert Council on NGO Law, to present the Recommendation of the Conference of INGOs on the Expert Council’s first report.
Mr Heydt's statement is reproduced in appendix 1 to the present synopsis. Several delegations expressed satisfaction with the report and the Group held an exchange of views with MM Heydt and McBride. After that exchange, the Chair invited the Group to resume discussion of this item at its next meeting in particular in the light of the comments to be sent to it by the European Committee on Legal Co-operation (CDCJ).
04/09 European Committee on Legal Co-operation (CDCJ)
a. Draft terms of reference for a Group of Specialists on child-friendly justice (CJ-S-CH)
The Chair invited the Secretariat to present the draft terms of reference as set out in document CM(2009)17 rev.
After examination of the document, the Group agreed to transmit the draft decisions to the Deputies for adoption of the relevant decision while noting that one delegation had asked to have more time to consult with its authorities.
b. Instructions to the CDCJ on a new Committee of Ministers’ recommendation on profiling
Following discussion, the Group agreed to transmit the draft decision to the Deputies for adoption of the relevant decision, without further debate, at their 1050th meeting (11 March 2009).
05/09 Consultative Council of European Judges (CCJE)
a. Hearing of the Chair of the CCJE
The Chair welcomed the Chair of the Consultative Council of European Judges, Mrs Julia Laffranque. Mrs Laffranque's statement is reproduced in appendix 2 to the present synopsis. Numerous delegations expressed their support for the activities of the CCJE and the Group held an exchange of views with Mrs Laffranque.
b. Abridged report of the 9th plenary meeting (Strasbourg, 12 – 14 November 2008)
c. Opinion no. 11 (2008) of the Consultative Council of European Judges (CCJE) for the attention of the Committee of Ministers of the Council of Europe on the quality of judicial decisions
Following discussion, the Group agreed to transmit the draft decisions, as amended (see appendix to Notes on the agenda CM/Notes/1050/10.1), to the Deputies for adoption of the relevant decisions, without further debate, at their 1050th meeting (11 March 2009).
06/09 European Charter for Regional or Minority Languages
a. Election of a member of the Committee of Experts in respect of Armenia
The Group examined the candidatures presented by Armenia (document CM(2009)18) on the basis of document GR-J(2004)2 rev, in which it had laid down its criteria for examining candidatures to the Committee of Experts of the European Charter for Regional or Minority Languages. It noted that the Armenian delegation had expressed a preference for Mr Zolyan Suren.
The Group agreed to transmit the list to the Deputies (1050th meeting, 11 March 2009) so that they could hold the election.
b. First report of the Committee of Experts in respect of Serbia
The Group examined the first report of the Committee of Experts on the situation of regional or minority languages in Serbia and the draft recommendation set out in document CM(2009)16. Several delegations welcomed the Committee of Experts’ report and the positive approach adopted by the national authorities concerned. They gave further indications with respect to a number of data included in the report, language teaching, education, access to court, displaced persons, promotion of regional or minority languages and collection of information with respect to national minorities.
The Chair drew the Group's attention to a proposal for amendment of the draft recommendation set out in document DD(2009)56. The delegation of Serbia proposed a sub-amendment to the proposal for amendment in question. The delegation of Romania said that it wished to have more time to decide on its final position. The delegation of Ukraine informed the Group that it wished to submit a proposal for amendment of the draft recommendation for examination by the Group at its next meeting.
In conclusion, the Chair said that the item would be placed on the agenda of the Group's next meeting (7 April 2009) and invited the delegations concerned to submit written proposals for amendment of the draft recommendation.
c. Second report of the Committee of Experts in respect of Austria
The Group examined the second report of the Committee of Experts of the situation of regional or minority languages in respect of Austria and the draft recommendation set out in document CM(2009)19.
The delegation of Slovenia made a statement which is reproduced in appendix 3 to the present synopsis. Another delegation drew attention to the situation of a specific school.
The Group decided to transmit the report to the Deputies for adoption of the draft decisions, without further debate, at their 1050th meeting (11 March 2009).
07/09 Steering Committee on Bioethics (CDBI) - Abridged report of the 35th meeting (Strasbourg, 2-5 December 2008)
Following discussion, the Group agreed to transmit the draft decisions, as amended (see appendix to Notes on the agenda CM/Notes/1050/10.3), to the Deputies for adoption of the relevant decisions, without further debate, at their 1050th meeting (11 March 2009).
08/09 European Commission for the Efficiency of Justice (CEPEJ)
a. 12th plenary meeting (Strasbourg, 10 – 11 December 2008)
b. 2009 Activity Programme
c. CEPEJ guidelines on judicial statistics (GOJUST)
d. SATURN guidelines for judicial time management
Following discussion, the Group agreed to transmit the draft decisions, as amended (see appendix to Notes on the agenda CM/Notes/1050/10.4), to the Deputies for adoption of the relevant decisions, without further debate, at their 1050th meeting (11 March 2009).
Answering a question with respect to the late reimbursement of fees to a CEPEJ expert, the Secretariat (Director of standard setting) indicated that the problem is a general issue that does not concern the CEPEJ only. He added that the competent departments of the Organisation will reimburse the expert as soon as possible and will do their utmost to avoid such delay in the future.
09/09 Council of Europe Convention on Access to Official Documents: opening for signature
CM/Del/Dec(2008)1042bis/1.2d and CM/Del/Dec(2008)1042bis/1.2d/appendix2
The Group agreed to transmit the draft decision setting 18 June 2009 as the date of the opening for signature of the Convention (see appendix to Notes on the agenda CM/Notes/1050/10.5) to the Deputies for adoption of the relevant decision, without further debate, at their 1050th meeting (11 March 2009).
Any other business
- Request from the Kyrgyz Republic to be invited to accede to the European Convention on Mutual Assistance in Criminal Matters (ETS No. 30)
The Secretariat (Director of Legal Advice and Public International Law) informed the Group that the Treaty Office had carried out informal consultations with member States to ascertain their position regarding the possible official request from the Kyrgyz Republic to be invited to accede to this Convention. The informal consultation showed that four States would oppose this request were it to be formally submitted to the Committee of Ministers while the Convention requires the unanimity of all states parties to invite a non-member State to become party.
Therefore, on 3 February 2009, the Treaty Office had informed the Kyrgyz Republic of the outcome of the informal consultations and invited that country to inform it of any developments that might prompt the member States to reconsider their position.
- Treaties event – Toledo Conference on the protection of children in European judicial systems (12-13 March 2009)
The Secretariat (Director of Legal Advice and Public International Law) invited the States which intended to sign or ratify in the near future the European Convention on the exercise of children's rights (ETS No. 160), the Convention on cybercrime (ETS No. 185), the Council of Europe Convention on action against trafficking in human beings (CETS No. 197), the Council of Europe Convention on the protection of children against sexual exploitation and sexual abuse (CETS No. 201) or the European Convention on the adoption of children (revised) (CETS No. 202), to take the opportunity to do so in the course of the "treaties event" which will be organised on 12 March at 9.30 am in the margin of the Toledo Conference on the protection of children in European justice systems (12-13 March 2009). The Director invited delegations to contact the Treaty Office for further information.
- Ad hoc Committee for preventing and combating violence against women and domestic violence
The Chair informed the Delegations of the state of preparation of the Committee's first meeting (6-8 April).
- Consideration of how to make full use of the potential offered by the Council of Europe for promoting the Rule of law
The Chair reminded the participants that this item would be on the agenda of the next meeting of the GR-J and informed the delegations that the documents relating to this item would not be distributed to the Delegations before 31 March 2009.
- Monitoring bodies of the Council of Europe
The Chair recalled that the Deputies had decided to hold a discussion on the report of the Chair on his meeting with the presidents of monitoring bodies at one of their forthcoming meetings "in the light of proposals to be made by their Rapporteur Group on Legal Affairs (GR-J) and their Rapporteur Group on Human Rights (GR-H)" (see CM/Del/Dec(2008)1044/1.7). He informed the delegations that, by agreement with the Chair of the GR-H, it had been agreed to place this item on the agenda of the GR-H meeting on 18 June 2009.
- Group of Specialists on counterfeit pharmaceutical products (PC-S-CP)
Answering a request from a delegation, the Secretariat (Director of standard setting) indicated that the Group of Specialists held a series of six meetings and agreed on a draft text. This draft will be submitted to the Bureau of the CDPC (19-20 February) with a view to obtaining the green light for launching negotiations in a plenary committee within the Ad hoc Committee on counterfeiting of medical products and similar crimes involving threats to public health (PC-ISP). It is foreseen that the PC-ISP will submit a draft convention at the plenary session of the CDPC in October 2009.
Date of the next meeting
Tuesday 7 April 2009 at 10 am.
Speech by Mr Jean-Marie Heydt, Chairman of the Conference of INGO of the Council of Europe
Ladies and Gentlemen,
It is both an honour and a pleasure for me to address you this morning in my capacity as the newly elected President of the Council of Europe Conference of INGOs.
This meeting is also an opportunity to inform you of the conclusions of the first annual report of the Expert Council on NGO Law, which we recently presented to the Conference of INGOs at our winter plenary session.
I would first like to provide some background in order to give you a better idea of the context in which this report was produced, and more specifically, the context in which the Expert Council on NGO Law came into being.
Two key events led to the setting up of the Expert Council:
· the positive declaration on the role of civil society made at the Summit of Heads of State and Government of the Council of Europe in Warsaw in 2005, and,
· the ambitious and highly gratifying Recommendation(2007)14 adopted by the Committee of Ministers of the Council of Europe, which sets out a framework for the legal status of NGOs in Europe.
These two key events were given a further boost by both national and international NGOs through practical action in the field. It was as a natural consequence of this that the initiative was taken, at the first Regional NGO Congress organised by our Conference, held in Warsaw in 2006, to request the setting up of an Expert Council. And of course, at the second Regional Conference, the one held in Kyiv in 2007, this request was confirmed and took shape.
The Conference of INGOs very quickly realised the importance of putting this into practice, at both national and international level.
Indeed, once recognition had been given, at the highest European level, to the “essential contribution made by NGOs […] in the development and realisation of democracy”, it was our duty to see to the consolidation and improvement of the legal, political and administrative conditions enabling NGOs to carry out their tasks.
The decision setting up the Expert Council on NGO Law was accordingly adopted at the January 2008 plenary session of the Conference of INGOs.
The Expert Council’s aim is to contribute to the creation of an enabling environment for NGOs throughout Europe by examining national NGO law and its implementation and promoting its compatibility with Council of Europe standards and European good practice.
The Expert Council’s term of office is three years. It has five members (including Jeremy McBride, present here) and its tasks include monitoring the legislative and regulatory framework for NGOs in European countries, as well as the administrative and judicial practices in those countries which affect the status and operation of NGOs.
The Expert Council, which started work in 2008, essentially pursues a thematic approach and its first report dealt with the “conditions of establishment of NGOs”, a subject touched on in 34 articles of the previously mentioned Committee of Ministers Recommendation. Six case studies on individual countries were included in the report as examples. I would like to make it clear from the outset, to remove any possible ambiguity, that the choice of these studies was in no way based on geographical criteria, and still less on political criteria. It was a genuinely thematic choice whose sole purpose was to illustrate the types of development to be encouraged.
This first annual report will thus be the basis for our exchange of views.
In 2009 the Expert Council will be undertaking a new study, this time on the theme of “internal governance of NGOs”. The study will focus on the following themes: self-governance, supervision and intervention by authorities, accountability and transparency, management, and decision-making processes. These points are mentioned in 15 articles of Recommendation CM/Rec(2007)14 and the report will be published next October.
But let us return to the first report and highlight certain aspects to which the Expert Council draws our attention.
First of all, it is gratifying to note that “in many countries in Europe international standards regarding the establishment of NGOs are being observed, either fully or to a very large extent”.
Nevertheless, the Expert Council feels obliged to point out that a number of problems emerge and urges states to be particularly vigilant, particularly with regard to the following points:
· Legislative restrictions on the establishment of informal groupings;
· In terms of simplifying the procedures for securing registration or acquiring legal personality, international standards should be brought into line;
· Formal time-limits for decision-making (whether it is a refusal or a positive decision) should be no more than two or three weeks and should be free from all political influence;
· Grounds for refusal should be reformulated where they are insufficiently precise to ensure their relevance and compatibility with international standards;
· Decisions concerning registration and the grant of legal personality should be subject to judicial control, with judges and lawyers being trained in the relevant international standards and relying on them when scrutinising refusals of registration or the grant of legal personality.
To conclude my statement and allow the discussion to begin, I would like to say that the Expert Council and its President, Cyril Ritchie, who is on mission in Africa for his NGO and apologises for his absence today, have worked really hard to contribute to the creation of an enabling environment for NGOs throughout Europe, by examining national NGO law and its implementation, and promoting its compatibility with Council of Europe standards and European good practice, the major concern and objective being to provide assistance and support and foster healthy co-operation.
Lastly, neither the Expert Council nor the Conference of INGOs has the aim of implementing Recommendation (2007)14. Rather, their aim is to be guided by it and to rely on it in order to promote the proper application of the law in the interests of all the member states’ citizens.
Thank you for your attention.
Intervention by Dr Julia Laffranque, Chair of the Consultative Council of European Judges (CCJE)
Please accept my gratitude for offering me an opportunity to introduce the most important recent and envisaged activities of the Consultative Council of European Judges (CCJE) with particular reference to Opinion number 11 of the CCJE entitled: "The quality of judicial decisions.”
Aims and roles of the CCJE
Dear members of the GR-J, as you are well aware, the Consultative Council of European Judges, to be composed exclusively of sitting judges as professional individuals who are not accountable to their governments, serves as a guarantor of judicial independence. It gives advice on issues such as the impartiality and competence of judges, and strengthens the role of the judiciary in Europe.
One of the main means of fulfilling the aims of the CCJE is to prepare advisory opinions. Since its creation, the CCJE has adopted eleven opinions on various areas identified in the Framework Global Action Plan for Judges in Europe, approved by the Committee of Ministers on 7 February 2001.
The significance of the CCJE's role is supported by the fact that the Heads of State and Government of member states outlined, in their Action Plan adopted in Warsaw on 17 May 2005, among the principal tasks of the Council of Europe, the necessity to make proper use of the opinions given by the CCJE.
Document CM(2008)170 of 21 November 2008 concerning the concept of the rule of law as understood within the Council of Europe, refers on many occasion to the different tasks carried out by the CCJE in order to strengthen, uphold and promote the rule of law.
According to its terms of reference, the CCJE can provide practical assistance to enable member states to comply with Council of Europe standards concerning judges. In 2008, the CCJE made active use of this role by setting up a special pool of experts and by responding to the requests of several members (Bulgaria, Poland, Serbia). The above mentioned requests concerned mostly judicial appointments, code of ethics and responsibility of judges.
In addition to member states, opinions of the CCJE have been taken into account by the European Association of Judges, European Judicial Training Network, European Network of Councils for the Judiciary and other bodies of similar competence.
Besides, the CCJE co-operates effectively with other committees of the Council of Europe, such as the European Commission for the Efficiency of Justice (CEPEJ), the Consultative Council of European Prosecutors (CPPE), the European Committee on Legal Cooperation (CDCJ) (the CCJE finds the revision of Recommendation Rec(94)12 on the independence, efficiency and role of judges, of paramount importance and is continuously interested in participating in the alteration), the Venice Commission (e.g. in 2008 concerning the European standards on the independence of the judiciary) and with the United Nations concerning the Commentary on the Bangalore principles of judicial conduct.
Another example of how to encourage partnerships in the judicial field involving courts, judges and judges’ associations, is the organisation of Conferences of European judges and meetings with judges of member states in the framework of preparing new opinions.
In 2008 the working group of the CCJE met for the first time in Lisbon, Portugal and the second time in Tartu, Estonia. On both occasions, meetings with representatives of local judicial authorities took place. In Tartu, at a conference on quality of judicial decisions, co-organised with the Estonian Supreme Court, an audience of more than 130 delegates of Estonian judicial community gathered. This is why the opinion of the CCJE adopted in 2008 can, as an anecdote, also be called “the Opinion of Tartu.”
Please allow me now to elaborate on the topic of quality of judicial decisions in a more detailed manner.
“The Opinion of Tartu”: Quality of judicial decisions in Europe and assessment thereof as seen by the CCJE
The quality of justice is a constant and long-standing concern of the Council of Europe. One major component of the quality of justice is the quality of judicial decisions.
Opinion no.11 (2008) of the CCJE submitted to you today concentrates on the quality factors of judicial decisions (part I) and on the evaluation of the quality of judicial decisions (part II). The quality factors of judicial decisions represent both external factors (the quality of legislation, the adequacy of the resources provided to the judicial system, the quality of legal training) and internal environment (judges’ professionalism, conduct of procedure, case management, hearings and elements inherent to the decision). The judge’s professionalism is important and involves ethics as well as awareness of non-legal concepts. The Procedure must be fairly conducted, clear, transparent, predictable and include a hearing whenever the case law of the European Court of Human Rights so prescribes. The decision must be given in a reasonable time. However, the speediness of the procedure is not the only factor to be taken into account, since judicial decisions must safeguard the right to a fair trial, social harmony and legal certainty.
- A judicial decision of high quality:
· Correctly applies legal principles and evaluates the factual background;
· Is intelligible and drafted in clear and simple language;
· Is in principle reasoned;
· Involves in it’s reasoning the interpretation of legal principles;
· Ensures legal certainty and consistency;
· Mentions it clearly, when a court decides to depart from previous case law;
· Is readily enforceable.
- Evaluation of the quality of the judicial decision must:
· In case of the merits of an individual judicial decision be done by the appeal or review procedures available in national courts and by the right of access to the European Court of Human Rights;
· Examine the judicial system as a whole;
· Be done on the basis of fundamental principles of the European Convention on Human Rights;
· Aim at identifying the need, if any, for amending of legislation, for changing or improving judicial procedures and/or for further training of judges and court staff;
· Use different methods of evaluation combined and define them according to transparent means;
· Be done also in the form of peer review and self evaluation by judges and with the participation of “external” persons, provided that the independence of the judiciary is fully respected;
· Take into account the annual reports of superior courts and their examination of judicial practices of lower courts, provided that the case law of superior courts is clear, consistent and constant;
· Lie in the power of the Council for the judiciary, where it exists, or of an independent body with the same guarantees for the independence of judges.
The CCJE had set for itself the objective, in accordance with its terms of reference, to examine the constitutive elements of the quality of a judicial decision. Hopefully this text will meet your expectations and the Committee of Ministers will be able to fully play its role in ensuring a wide dissemination of this Opinion with Ministries of Justice, councils for the judiciary and judicial professions in your countries, including organising in your capitals the translation of this Opinion, so that it may be accessible to the largest possible public.
Plans for the future
The work of the CCJE has been evaluated very positively by experts of member states. The Working Party on Institutional Reforms (GT-REF.INST) prepared at the end of November 2008 a questionnaire on the relevance and added value of the work of individual steering and ad hoc committees of the Council of Europe. According to the synthesis of the responses, an impressively large majority: 90% of all replies, confirm that the work of the CCJE has been useful for the elaboration of the national legislation and regulations, as well as to organise public debates on relevant themes.
Furthermore, the International Association of Judges has awarded the prize of "Justice in the World" 2008 to the CCJE.
These achievements place high expectations and challenges for our future work.
The next Opinion of the CCJE (Opinion no. 12, 2009) will cover the relationship between judges and prosecution services in co-operation with the CPPE.
The fourth Conference of European Judges on the same topic will take place from 30 June to 1 July 2009 in Bordeaux, France. The tradition of these conferences should continue also in the future.
This November marks an important event for the CCJE as it will be our 10th plenary meeting. It will be, among others, a good occasion to strengthen the visibility of the work of the CCJE.
Moreover, the CCJE needs to reinforce its relations with its partners, among them the European Court of Human Rights, the different bodies of the European Union, including the latter’s courts. Active involvement of the CCJE in the discussion of topics related to the judiciary in Europe is to be expected. An example for a possible forum where the participation of the CCJE could be envisaged is a study on accessing efficient and independent justice as stated in the annual work programme for 2009 of the European Agency for Fundamental Rights.
The CCJE will continue to give practical assistance to member states concerning issues of the judiciary and thereby help to implement its opinions in practice. This activity may also provide an impetus to codify existing opinions, if necessary.
A list of possible topics for the Opinions of 2010 and 2011 are currently being discussed in the bureau of the CCJE.
As President of the CCJE, I am strongly committed to the CCJE reaching these goals and to reaping a good harvest in the interest of Europeans.
Thank you for your attention.
Intervention by the delegation of Slovenia on the second report of the Committee of Experts of the European Charter for Regional or Minority Languages in respect of Austria
“Slovenia welcomes the Second report of the Committee of Experts in respect of Austria (European Charter of the Regional or Minority Languages) and believes that it tackles all for the Slovenian minority in Austria important issues. Nevertheless, Slovenia needs to point out the following observations:
- In line with the findings of the Committee of Experts in the second monitoring round (Item D) Slovenia would encourage Austria, its federal authorities, to remain engaged in depoliticizing language issues in Carinthia and to put stronger efforts in creating positive atmosphere among majority population.
- Slovenia would like to point out the lack of implementation of the Constitutional Court Rulings regarding the use of Slovenian language before the authorities and regarding bilingual topographical signs in Carinthia. Slovenia would recommend this to be reflected also in the Chapter 3 of the report (Findings (Item D) and proposals for recommendations (number 2)) as the Committee of Experts itself underlined in Item 33 that “more resolute action needs to be taken in order to implement Constitutional Court rulings”.
- In regard to Item 218 we would like to make it clear that the Working Party of Private Bilingual and Multilingual Nursery Schools and the Pedagogical Association are not public institutions.
- Regarding the Item 220 Slovenia would appreciate that the reference to Rosegg/Rožek would be added. According to the Austrian Centre for Ethnic Groups, Slovenian should also be admitted before the district courts of Volkermarkt/Velikovec, or at least the area of jurisdiction of the former district courts of Eberndorf/Dobrla vas, Arnoldstein/Podklošter, Volkermarkt/Velikovec and Rosegg/Rožek.
- Regarding the Item 222 Slovenia would like to inform that the three district courts (Borovlje/Ferlach, Železna Kapla/Eisenkappel, Pliberk/Bleiburg) and Klagenfurt Regional Court do not have bilingual signage on/before the building.
We would like this statement to be included into the record of the meeting.”
Note 1 This document has been classified restricted at the date of issue. Unless the Committee of Ministers decides otherwise, it will be declassified according to the rules set out in Resolution Res(2001)6 on access to Council of Europe documents.