Ministers’ Deputies / Rapporteur Groups
Rapporteur Group on Legal Co-operation
GR-J(2010)CB1 20 January 20101
Meeting of 14 January 2010
1. The Rapporteur Group on Legal Co-operation (GR-J) met on 14 January 2010 with Ambassador Emil Kuchar, Permanent Representative of the Slovak Republic, in the chair. The agenda (GR-J(2010)OJ1rev) was adopted with the postponement of items: 31/09 - Consultative Committee of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108) (T-PD) -
Abridged report of the 25th meeting (Strasbourg, 2-4 September 2009) and 07/10 - European Charter for Regional or Minority Languages – Fourth report of the Committee of Experts in respect of Hungary.
01/10 Trafficking in organs – request for an opinion on the recommendations made in the joint Council of Europe – United Nations study on trafficking in organs, tissues and cells (OTC) and trafficking in human beings for the purpose of the removal of organs
2. The Deputy Secretary General, Mrs Maud de Boer Buquicchio, informed the Group about the Council of Europe – United Nations study on trafficking in organs, tissues and cells (OTC) and trafficking in human beings for the purpose of the removal of organs, which had been distributed to delegations on 13 October 2009. She underlined that the text, which had been referred to in the Resolution on cooperation between the United Nations and the Council of Europe adopted by the UN General Assembly in December 2008, had met with a lot of interest in professional circles. She noted that the study made a distinction between trafficking in human beings for the purpose of the removal of organs and trafficking in organs, tissues and cells (OTC). Whereas the former was defined in and covered by the UN Palermo Protocol and the Council of Europe Convention on Action against Trafficking in Human Beings, the study had shown that there was a need for an internationally agreed definition of trafficking in OTC. Such trafficking was prohibited by the Additional Protocol to the Convention on Human Rights and Biomedicine concerning Transplantation of Organs and Tissues of Human Origin (CETS No: 186). This instrument did not, however, contain a definition. The Deputy Secretary General therefore proposed that the Group recommend to the Deputies to invite the relevant steering and expert committees to give an opinion on the recommendations made in the above-mentioned study, in particular on the need to elaborate a convention to combat trafficking in organs containing such a definition. This new convention could also contain provisions on prevention of trafficking in OTC, on protection of victims of trafficking as well as the criminal law provisions necessary to investigate such crimes and bring the perpetrators to justice. In addition, it could contain provisions on international co-operation in this field.
3. The Deputy Secretary General’s proposal was welcomed by delegations. One delegation stressed the need to try to obtain reliable data in order to measure the extent and scope of trafficking in OTC. A couple of other delegations underlined the need to avoid duplication with the work of other regional or international organisations.
4. The Group agreed to propose that the Deputies adopt the decisions contained in document CM/Notes/1075/10.6, at their 1075th meeting (20 January 2010), without further debate (item placed in the box).
02/10 Steering Committee on Bioethics (CDBI) –
Abridged report of the 37th meeting (Strasbourg, 4-6 November 2009)
5. The GR-J examined the abridged report of the 37th meeting of the Steering Committee on Bioethics (CDBI), as contained in document CM(2009)186. It agreed to forward the document to the Deputies for adoption of the relevant decision, as it appears in document CM/Notes/1075/10.5, at their 1075th meeting (20 January 2010), without further debate (item placed in the box).
28/09 Council of Europe ad hoc Committee for the Revision of the Convention on Mutual Assistance in Tax Matters (CAHTAX) – draft amending Protocol to the Convention on Mutual Assistance in Tax Matters (CETS No. 127)
6. The Chairman recalled that the Deputies had agreed at their 1073rd meeting (9-14 December 2009) to transmit the draft amending Protocol together with a cover note to the Assembly. As agreed at that time, the GR-J would continue to seek a consensus on the outstanding substantive issues pending the Assembly’s opinion.
7. The Director of Standard-Setting informed the Group about the latest developments in the negotiations with the OECD. He recalled the letter addressed by the Chair of the CB/CAHTAX Committee to the Chairman of the Deputies explaining that the Committee had not been able to agree to the compromise version of the provision on data protection (DD(2020)1). As delegations had also been informed (document DD(2010)9), the Rapporteur of the Parliamentary Assembly had in the meanwhile organised a meeting in The Hague, to which he had invited the OECD, members of the Consultative Committee of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (T-PD) and Council of Europe Secretariat. His purpose was to try and reach a compromise on this issue. Delegations would be informed about the results of this meeting as soon as possible.
8. Some delegations indicated that they maintained their positions. A couple of delegations expressed hesitation as to the fact that important issues were now negotiated elsewhere and underlined the importance of the position of the T-PD.
9. On the issue of retroactivity, the Belgian delegation made the proposal contained in Appendix 1. Some delegations agreed with Belgium that the issue of retroactivity needed to be clarified. The Belgian proposal should also be brought to the attention of the Assembly Rapporteur’s meeting in The Hague.
10. The representative of the European Union stated that the reservations made previously by that delegation, concerning possible problems of compatibility between the draft amending Protocol and EU competencies or EU legislation, could be lifted as a close examination by the competent services of the European Commission had shown that there were no problems in this respect.
11. The Chair concluded that the Belgian text would be transmitted to The Hague together with the information concerning the EU position. He encouraged delegations to continue the informal discussions on the issues that were still open and instructed the Secretariat to provide information of the results of the meeting in The Hague as soon as possible.
03/10 European Committee on Crime Problems (CDPC)
a. Abridged Report of the 58th Plenary Meeting (Strasbourg, 12-16 October 2009)
b. Draft third Additional Protocol to the European Convention on Extradition (CETS No. 24) and its Explanatory Report
c. Draft Council of Europe Convention on the Counterfeiting of Medical Products and Similar Crimes involving Threats to Public Health and its Explanatory Report
d. Draft Recommendation CM/Rec(2010)… of the Committee of Ministers to member states on the Council of Europe Probation Rules and its Commentary
12. The Group examined the various texts submitted by the European Committee on Crime Problems (CDPC) (document CM(2009)187 and addenda 1-3). As regards the draft Council of Europe Convention on the Counterfeiting of Medical Products and Similar Crimes involving Threats to Public Health, it discussed a number of outstanding issues, including: (1) the financing of the monitoring mechanism; (2) a proposal made by one delegation to change the wording of Article 29 to facilitate accession to the Convention by non-member states of the Council of Europe; and (3) the Secretariat’s proposal to replace the references made to the CDPC and to the European Directorate for the Quality of Medicines and HealthCare (EDQM) in the draft Convention with a more generic term which does not make reference to a named committee or sector of the Secretariat (“the appropriate subordinate body dealing with criminal matters”).
13. On the first issue, the Director of Standard-Setting indicated that the CDPC had brought the issue of the financing to the attention of the Committee of Ministers as steering committees had been asked to do so following problems in the recent past with financing newly established monitoring mechanisms. There were two alternatives: (a) financing through the ordinary budget of the Organisation or (b) financing by the parties to the Convention. If the latter alternative would be chosen some amendments would be necessary in the draft instrument.
14. In relation to the second issue, the representative of the Head of the Legal Advice Department explained that Article 29 of the draft Convention was a standard clause used in treaties that were open for accession to non-member states. It was a flexible provision, which also had the advantage of being complete and precise. The procedure foreseen was rather rapid and not difficult from a formal point of view. Still the Committee of Ministers was the body taking the final decision in each individual case, which meant that it kept control. The situation was different in the UN where all states have a right to ratify, but then they are all (or practically all) members. There was no support among delegations for amending Article 29.
15. As regards the third issue, the Director of Standard-Setting and the Head of the Legal Advice Department explained that the proposal was made to avoid a situation where a name-change for the CDPC or the EDQM would make the Convention text outdated. This new precaution arose from the decision of the Committee of Ministers to re-examine the terms of reference of all subordinate bodies, including Steering Committees, every few years. A direct reference to the CDPC could instead be made in the Explanatory Report. Whereas some delegations supported the Secretariat’s proposal, other delegations preferred keeping the references to the CDPC and the EDQM in the text in accordance with established practice.
16. The Group agreed to transmit the CDPC documents to the Deputies for adoption of the relevant decisions as they appear in document CM/Notes/1075/10.3, at their 1075th meeting (20 January 2010), without further debate (item placed in the box). It would come back to the three outstanding issues relating to the draft Council of Europe Convention on the Counterfeiting of Medical Products once the opinion of the Parliamentary Assembly had been received.
30/09 European Committee on Legal Co-operation (CDCJ)
Group of Specialists on access to justice for migrants and asylum seekers (CJ-S-MG) –
draft terms of reference for 2010
17. Several delegations reiterated the position they had held at the Groups’ meeting of 19 November 2009. They stressed in particular that as work on asylum seekers was underway and quite advanced in the European Union, this proposed CDCJ activity should either exclude asylum seekers and deal only with migrants or await the outcome of the work undertaken within the European Union. There was a clear risk of duplication and/or of contradiction.
18. Several other delegations stated that they supported the proposed terms of reference and recalled Resolution No. 1 on access to justice for migrants and asylum seekers adopted at the 28th Conference of European Ministers of Justice (Lanzarote, October 2007). A couple of delegations stressed in particular that the terms of reference had an interest also for non-EU member states.
19. The Chair noted that no delegation had challenged the importance of the issues covered by the draft terms of reference, nor the Council of Europe’s competence in this field. The Group was much divided as regards the draft presented to it. Before its next meeting, the Chair of the GR-J would organise informal consultation with interested delegations to try to move forward on this item.
04/10 Consultative Council of European Judges (CCJE) and the
05/10 Consultative Council of European Prosecutors (CCPE)
a. Abridged report of the 10th plenary meeting of the CCJE (Ljubljana, 18-20 November 2009)
b. Abridged report of the 4th plenary meeting of the CCPE (Ljubljana, 18-20 November 2009)
c. Joint Opinion by the CCJE and the CCPE on the relationships between judges and prosecutors
20. The Group examined the abridged reports of the CCJE and the CCPE (documents CM (2009)190 and 191) and their Joint Opinion (document CM(2009)192) as well as the Opinion by the European Committee on Crime Problems (CDPC) (document CM(2009)201). After some discussion, during which the Belgian delegation made the statement contained in document DD(2010)8, the Group agreed to transmit these texts to the Deputies for adoption of the relevant decisions, as they appear in document CM/Notes/1075/10.1, at their 1075th meeting (20 January 2010). Delegations were informed that the Deputies will have a joint exchange of views with the chairs of the CCJE and the CCPE at their 1075th meeting.
13/09 European Charter for Regional or Minority Languages – First report of the Committee of Experts in respect of Ukraine
21. The Chairman informed the Group that there had been no progress in the negotiations since the Group’s last meeting (19 November 2009). He would now intensify the informal consultations and had good hope that a solution would be found in the coming weeks.
06/10 European Charter for Regional or Minority Languages – First report of the Committee of Experts in respect of Montenegro
22. The Group examined the first report in respect of Montenegro, as it appears in document CM(2009)197. It agreed to transmit it to the Deputies for adoption of the relevant decisions, as they appear in document CM/Notes/1075/10.4, at their 1075th meeting (20 January 2010), without further debate (item placed in the box). The Croatian delegation made the statement contained in Appendix 2.
08/10 Committee of Experts on Terrorism (CODEXTER) –
Abridged report of the 17th meeting (Strasbourg, 17-18 November 2009)
23. The Group examined the abridged report of the 17th meeting of the Committee of Experts on Terrorism (CODEXTER), as set out in document CM(2009)188. It agreed to forward it to the Deputies for adoption of the relevant decision, as it appears in document CM/Notes/1076/10.2, at their 1076th meeting (3 February 2010), without further debate (item placed in the box).
25. The next meeting will be held on Tuesday, 23 February 2010 at 10 a.m.
Proposal made by the Belgian delegation
I. The question of retroactivity and the date on which the Convention will take effect
Principle of retroactivity: maintaining that this principle is incompatible with law is not a valid argument. Indeed, the retroactivity concerns only the exchange of information on cases of tax fraud liable to criminal prosecution. Criminal legislation in itself is not modified, as tax fraud has been a criminal offence under criminal law for many years. The exchange of information merely facilitates the investigation into cases of intentional fraud.
II. The need to clarify the working of paragraphs 6 and 7 of Article VIII
At present, the unclear wording of paragraphs 6 and 7 of Article VIII modifying Article 28 of the Convention is clearly confusing and results in differing legal interpretations. (see Mr Lezertua’s legal opinion based on a textual reading v. Ms Torill Wettre’s explanations concerning the substance of the negotiations in CB/CAHTAX).
It is therefore absolutely necessary to clarify this provision, which does not, for the time being, reflect the position agreed on and endorsed by a large majority of the CB/CAHTAX.
Two principles have received the support of a vast majority of the members of CB/CAHTAX:
– Non–retroactivity in cases of administrative assistance (general), unless two or more Parties agree that the Convention applies to previous periods of taxation.
– Retroactivity with regard to assistance concerning cases of fraud liable to criminal prosecution, with the possibility of limiting the retroactivity to 3 years (rolling date” – “flexible” retroactivity with regard to the date of entry into force in respect of one party).
With regard to criminal law tax issues, the Convention admittedly takes effect on the date on which it comes into force in respect of a Party, but the assistance covers previous taxable periods.
Paragraph 7 currently makes no reference to taxable periods (neither future, nor past) covered by the exchange of information concerning acts liable to criminal prosecution. Belgium wishes to make a new proposal concerning the wording of this paragraph to redress this omission.
Current Version of paragraph 7 of Article VIII modifying Article 28 of the Convention: “Notwithstanding paragraph 6, for tax matters involving intentional conduct which is liable to prosecution under the criminal laws of the applicant Party, the provisions of this Convention, as amended by the 2010 Protocol, shall have effect from the date of entry into force in respect of a Party.”
Proposed alternative wording:
“Notwithstanding paragraph 6, for tax matters involving intentional conduct which is liable to prosecution under the criminal laws of the applicant Party, the amended Convention shall have effect from the date of entry into force in respect of a Party but will cover taxable periods prior to this date. The Parties may, however, limit the retroactivity by means of a declaration stipulating that Article 28 para. 7 shall apply to taxable periods beginning on the 1 January, or after 1 January of the third year preceding the year in which the Convention came into force in respect of a party.”
Statement made by the Croatian delegation
In the context of examination of the First report of the European Charter for Regional or Minority Languages for Montenegro, we would in particular like to thank the Committee of experts for having raised the issue and for having shown the interest in clarifying the status of the Croatian language in Montenegro in the context of the Charter.
While appreciating the degree of recognition and the status of the Croatian minority under the new Montenegrin constitution, we strongly believe that one way of materializing the protection of fundamental human rights, and more specifically national minority rights, is through applying formal principles and standards of minority languages protection.
We, therefore, appreciate the expressed readiness of Montenegro to reconsider extending the ratification of the Charter to cover also the Croatian language and thus enable its inclusion under the Charter.
According to the information we have received from the four main representative associations of the Croatian minority community in Montenegro – which is not reflected in the report – they were not aware of the possibility neither to participate at a meeting in Podgorica during the on-the-spot visit nor to provide written comments.
Upon their specific request, we would like to use this opportunity to confirm that they have expressed strong interest in protecting the Croatian language under the Charter and that they are willing to actively contribute to clarifying its status to this end.
We, therefore, encourage experts to return to this issue in the next monitoring cycle and to continue a consultation process with Montenegrin authorities and minority speakers.
1 This document has been classified restricted at the date of issue; it will be declassified in accordance with Resolution Res(2001)6 on access to Council of Europe documents.