Ministers' Deputies / Rapporteur Groups
GR-J
Rapporteur Group on Legal Co-operation

GR-J(2010)CB7 7July 20101
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Synopsis
Meeting of 1 July 2010
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1. The Rapporteur Group on Legal Co-operation (GR-J) met on 1 July 2010 with Ambassador Emil Kuchar, Permanent Representative of the Slovak Republic, in the chair. The agenda (GR-J(2010)OJ7) was adopted.

03/10 European Committee on Crime Problems (CDPC)

a. Draft Council of Europe Convention on Counterfeiting of medical products and similar crimes involving threats to public health
PA Opinion No. 276 (2010), CM(2010)30 prov3, CM(2010)30 addprov3, GR-J(2010)6, GR-J(2010)8, DD(2010)269

2. The Chair recalled that some progress had been made on this item in the informal consultation he had organised on 27 May 2010 and that only the financing issue (Article 23 para. 5) remained open. He had since been informed that there was a feeling that the discussions should continue on Article 28 of the draft Convention and that one delegation had a compromise proposal to make concerning that provision.

3. The delegation concerned stated that the proposal concerning Article 28 was offered by the Secretariat. The delegation could support it and had drawn up a list of countries that could be invited to sign the Convention immediately upon its opening for signature. A decision on the invitation of a first group of States could be adopted by the Committee of Ministers when adopting the Convention. The text provided for a new system of entry to the Convention as those countries which would not be entitled to sign the Convention (according to the revised Article 28), would have the possibility to sign it provided they had been invited by the Committee of Ministers. On the Chair’s instruction, the Secretariat distributed the revised Article 28 together with the proposed list of countries (document DD(2010)347).

4. A number of countries questioned whether it was a normal practice to invite countries to sign a convention before they had actually manifested an interest in signing.

5. The Director of Legal Advice stated that there was no tradition of inviting states that had not expressed their interest to sign a Convention. The proposed text was thus innovative and there was therefore no established practice. The Committee of Ministers has previously considered that states which have participated in the elaboration of a legal instrument have shown their interest in the text. If the proposed solution would be chosen, the Committee of Ministers would be going a step further in that states that have not participated in the elaboration and that are not observers at the Council of Europe could be invited to sign. There were no legal obstacles to this way of proceeding, which was simply different to the traditional approach adopted by the Council of Europe.

6. The representative of the European Union pointed out that Article 29 of the draft Convention did not mention accession of the European Union as a possibility. The Director of Legal Advice explained that the modalities of the European Union participation to the Convention are already governed by paragraphs 1 and 2 of Article 28. The representative of the European Union also stated that the EU would welcome provisions giving easy access to the Convention to non-member states of the Council of Europe and to the European Union.

7. Some delegations expressed their interest in the proposed wording for Article 28. Concern was expressed as to how a decision could be reached on the proposed list of countries and on which criteria should be used for deciding which countries should be on that list. Other questions raised by delegations related to the situation that non-member states would sign and ratify the Convention, before member states do so.

8. One delegation made the statement contained in the Appendix.

9. The Head of the Law Reform Department underlined that it may be necessary, if the compromise proposal concerning Article 28 were to be adopted, to add a provision to Article 21 of the Convention, providing that requests for extradition and mutual legal assistance should be denied, when meeting such requests would entail a breach of international human rights obligations, for example extraditing persons to countries where they face the death penalty. He also stated that Article 29 of the Convention may not be necessary if the revised wording of Article 28 were adopted and non-member states would sign and ratify the Convention instead of acceding.

10. In conclusion, the Chair asked the Secretariat to prepare a revised consolidated version of the draft Convention and of its explanatory report for the Group’s next meeting. He also asked it to prepare a “Chairman’s note” to be sent to delegations as soon as possible answering some of the questions asked during the meeting in particular in relation to the criteria for selecting the countries to be put on the list. Finally, he asked delegations to indicate to the Secretariat not later than on 5 September 2010 whether they could accept the countries on the proposed list or not and whether they would like to add other countries to the list.

b. Draft Third Additional Protocol to the European Convention on Extradition (CETS No. 24) and its Explanatory Report
CM(2009)187, CM(2009)187 add1, PA Opinion No. 278 (2010)

11. The Group examined the draft Third Additional Protocol to the European Convention on Extradition (CETS No. 24) and its Explanatory Report (documents CM(2009)187 and CM(2009)187 add1) in the light of the Assembly’s opinion (document PA Opinion No. 278 (2010).

12. The French delegation indicated that considering the domestic extradition proceedings in France which had a judicial and an administrative phase, France had reservations as to the possibility to apply the simplified extradition procedure provided for in the draft Third Protocol. There was no intention to block the adoption of the text, but France would make a declaration at the Deputies’ meeting when the text would be adopted and ask for it to be included in the Records of the meeting.

13. The Secretariat informed the Group that different options were still being considered for the date and place of the opening for signature of the draft Protocol.

14. The Group agreed to transmit the documents to the Ministers’ Deputies for the adoption of the relevant decisions as they appear in document CM/Notes/1090/10.4 at their 1090th meeting on 7 July 2010, without any further debate (item placed in the box).

13/10 “Ban on cluster munitions” – Parliamentary Assembly Recommendation 1871 (2009) - Draft reply
PA Recommendation 1871 (2009), CM/AS(2010)Rec1871 prov2, DD(2010)84, DD(2010)189 rev, DD(2010)268

15. The Chairman recalled that at the Group’s meeting on 20 May, a compromise proposal concerning paragraph 2 had been distributed (document DD(2010)268) which all delegations except one could accept. That delegation had stated that it would examine the proposal and had reserved its position to the next meeting of the Group.

16. The delegation in question stated that it could not accept the compromise proposal. It considered that military matters fell outside the scope of the mandate of the Council of Europe and referred to an ongoing process under UN auspices aimed specifically at solving the issue of cluster munitions.

17. Another delegation stated that its authorities would have preferred a slightly different wording, but bearing in mind that there was a Parliamentary Assembly Recommendation to the Russian Federation and Georgia on the ban on cluster munitions, it could accept the compromise proposal.

18. The Chair noted that the Group had examined this item at several consecutive meetings. As all delegations except one could accept the last compromise proposal, the draft would be transmitted to the Deputies for adoption as contained in document CM/AS(2010)Rec1871 prov3. The delegation that had not been able to accept the compromise text for paragraph 2 informed the Group that it would ask for a footnote to be added to the draft reply indicating that it had been adopted by a majority as provided by Article 20 (d) of the Statute.2

22/10 Committee of Experts on Terrorism (CODEXTER)

a. Exchange of views with Mr. Andrea Candrian, Chair of the CODEXTER (11 a.m.)

b. Abridged report of the 18th meeting of the CODEXTER

c. Follow-up mechanism for the effective use and implementation of the Council of Europe Convention on the Prevention of Terrorism (CETS No. 196)

d. Draft terms of reference for 2011-2012
CM(2010)78

e. Synoptic and analytical report on the questionnaire on “false identity information as a challenge to immigration authorities”
CM(2010)78 add1

f. Updated Progress Report on future priority areas for the work of the Council of Europe against terrorism
CM(2010)78 add2

19. The Group held an exchange of views with the Chair of the Committee of Experts on Terrorism (CODEXTER), Mr Andrea Candrian (Switzerland). Mr Candrian’s statement is contained in document DD(2010)348.

20. A large number of delegations indicated their support for CODEXTER and its activities. Support was also expressed for the proposed follow-up mechanism for the effective use and implementation of the Council of Europe Convention on the Prevention of Terrorism (CETS No. 196). One delegation stated that it did not consider that CODEXTER should take on additional activities.

21. In reply to questions asked by delegations, the Chair of CODEXTER stated that the Group of Parties - to be instituted in the framework of the mechanism proposed to follow up the Convention - would be a rather secluded body, a forum for exchanges between the parties. The results of its discussions would be transmitted to the CODEXTER, which would proceed further with a broader discussion in Plenary with contributions of signatories, other States and observers in the Committee. In this context, the President underlined that the Convention was open also to non-member states. The Group of Parties would decide on its structures and adopt its rules of procedure. The Chair agreed that the main task of CODEXTER in the future would be the follow-up of the Convention on the Prevention of terrorism and that as a consequence the order of the sub-items in paragraph 4 of the terms of reference could be reversed, as suggested by one delegation.

22. The Turkish delegation informed the Group that during the Turkish Chairmanship of the Committee of Ministers, Turkey would be hosting the 19th plenary meeting of CODEXTER in Istanbul on 15-16 December 2010. Following the plenary meeting, an international counter-terrorism conference would be organised on 16-17 December 2010, with the theme: “Prevention of terrorism: prevention tools, legal instruments and their implementation”.

23. The Group examined the abridged report of the CODEXTER’s 18th meeting (Strasbourg, 7-8 April 2010) and its addenda, as they appear in documents CM(2010)78, CM(2010)78 add1 and CM(2010)78 add2. The Group agreed on all texts, except the draft terms of reference, and decided to transmit these documents to the Deputies for adoption of the relevant decisions at their 1090th meeting on 7 July 2010 without further debate (item placed in the box).

24. During the discussions on the draft terms of reference, one delegation proposed that they be amended in such a way as to expressly indicate that CODEXTER’s priority work would be to follow-up to the Council of Europe instruments in the field of terrorism. It was thus proposed that paragraph 4 of the draft terms of reference (document CM(2010)78; Appendix III) be amended in order to put sub-paragraph (d) before sub-paragraph (a) and add the words “as a priority” at the beginning of sub-paragraph (d). A couple of delegations stated that they shared the view that CODEXTER should give priority to the follow-up to conventions, but trusted that CODEXTER would deal with its agenda and would consider other issues only to extent that there was time for it. Other delegations stated that they could not accept the amendment proposal, which substantially changed the nature of CODEXTER’s terms of reference.

25. Following the discussion, a compromise version of the draft terms of reference was agreed ad referendum with a deadline expiring on Monday, 5 July 2010 at noon (see document DD(2010)349).

13/09 European Charter for Regional or Minority Languages – First report of the Committee of Experts in respect of Ukraine
CM(2009)43, DD(2009)208, DD(2009)211, DD(2009)424, DD(2009)589

26. The Chair explained that following informal consultations with interested delegations, he had submitted the compromise proposal concerning the draft recommendation to be addressed to Ukraine that had been distributed in document DD(2010)340. The Group examined the compromise proposal and agreed to transmit it together with the first report in respect of Ukraine (document CM(2009)43) to the Deputies for adoption of the relevant decisions at their 1090th meeting (7 July 2010).

23/10 European Charter for Regional or Minority Languages

b. Election of a member of the Committee of Experts in respect of Finland
CM(2010)76
c. Election of a member of the Committee of Experts in respect of the Netherlands
CM(2010)77

27. The GR-J examined the candidatures presented by Finland (document CM(2010)76) and the Netherlands (document CM(2010)77) in the light of document GR-J(2004)2 rev, containing its criteria for the examination of candidatures for the Committee of Experts of the European Charter for Regional or Minority Languages.

28. The Group agreed to transmit the lists to the Deputies (1090th meeting, 7 July 2010) in order for the elections to be held.

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
Appendix VI to CM(2009)163, GR-J(2009)CB7, GR-J(2010)CB1 and GR-J(2010)CB2

29. The Chair recalled that this item has been on the Group’s agenda on three previous occasions and that it had agreed at its meeting on 23 February to postpone the item for some months, i.e. to the Group’s last meeting before the summer (1 July 2010). The purpose had been to come closer to the time when the European Union would be concluding its work on these issues.

30. A few delegations asked that the item be postponed to a future meeting of the Group, as the work within the European Union had not been finalised. This was agreed by the Group.

25/10 Council of Europe's Convention on Cybercrime (ETS No. 185) - Request by Australia to be invited to accede
GR-J(2010)11

31. The Group examined the request by Australia to be invited to accede to the Council of Europe's Convention on Cybercrime (ETS No. 185) and agreed to transmit it to the Deputies for adoption of the relevant decisions at their 1090th meeting (7 July 2010) without further debate (item placed in the box).

26/10 Council of Europe's Convention on Cybercrime (ETS No. 185) - Request by Argentina to be invited to accede
GR-J(2010)12

32. The Group examined the request by Argentina to be invited to accede to the Council of Europe's Convention on Cybercrime (ETS No. 185) and agreed to transmit it to the Deputies for adoption of the relevant decisions at their 1090th meeting (7 July 2010) without further debate (item placed in the box).

27/10 “Towards a new ocean governance” – Parliamentary Assembly Recommendation 1888 (2009) – Draft reply
PA Recommendation 1888 (2009), CM/AS(2010)Rec1888 prov

33. The Group examined the draft reply contained in document CM/AS(2010)Rec1858 prov and agreed to transmit it to the Deputies for adoption at their 1090th meeting (7 July 2010) without further debate.

28/10 “Improving the quality and consistency of asylum decisions in the Council of Europe member states” – Parliamentary Assembly Recommendation 1889 (2009) – Draft reply
PA Recommendation 1889 (2009), CM/AS(2010)Rec1889 prov

34. The Chair recalled that written comments on the draft reply to Recommendation 1889 (2009) had been distributed in document DD(2010)334. One delegation took the floor asking that the word “can” be added to the first sentence of paragraph 3 of the draft reply so that the sentence would read: “The Committee of Ministers is aware that the shortcomings in the implementation of current regulations referred to in the report of the Parliamentary Assembly can raise serious human rights issues which need to be addressed.” The same delegation also underlined that paragraph 5 needed to be updated as the EU decision regarding the European Asylum Support Office would come into force on 1 July 2010.

35. Due to a lack of time, the Group agreed to resume consideration of this item at its next meeting.

Any other business

36. There was no other business.

Date of the next meeting

37. The next meeting will be held on Thursday, 30 September 2010 at 3 pm.

***

Appendix

The Georgian delegation expressed its position of principle, without breaking the compromise, according to which only those non Council of Europe member states, which are interested in becoming a party to the Council of Europe Convention should be invited and that any list that could be included in the Committee of Ministers decisions in question should not be understood as creating any political, legal, moral or any other obligation for states to be mentioned in these list of invited countries.

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.

2 This is in line with a decision taken by the Deputies at their 519bis meeting where they “agreed to adopt replies to the Parliamentary Assembly henceforth by the majority provided for in Article 20 (d) of the Statute, considering that every effort will be made to reach a consensus within a reasonable period of time;
3. the Deputies agreed to specify, at the beginning of the text of an answer of the Committee of Ministers to the Parliamentary Assembly, if a delegation should request it, that this answer was adopted by a majority as provided by Article 20 (d) of the Statute.”


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