CM(2011)158 8 November 20111
1132 Meeting, 1 February 2012
10 Legal questions
10.1 European Committee on Legal Co-operation (CDCJ)2
Abridged report of the 86th plenary meeting (Strasbourg, 12-14 October 2011)
Item to be prepared by the GR-J at its first meeting of January 2012
The European Committee on Legal Co-operation (CDCJ) held its 86th meeting in Strasbourg on 12-14 October 2011. The meeting was chaired by Mr Séamus Carroll (Ireland), Chair of CDCJ. The agenda as adopted by the Committee appears in Appendix I. The list of participants can be obtained from the Secretariat.
ITEMS SUBMITTED TO THE COMMITTEE OF MINISTERS
(i) The Committee of Ministers is invited to examine and adopt the draft recommendation on the rights and legal status of children and parental responsibilities and take note of its explanatory memorandum (see paragraph 2 below).
(ii) CDCJ advises the Committee of Ministers that, in its opinion, the setting-up of a digital legal information library and a platform for the exchange of information on ICT projects, as proposed in Resolution No. 1 of the 30th Conference of Ministers of Justice (a modern, transparent and efficient justice), would be too ambitious for the Council of Europe in the current circumstances (see paragraph 20).
(iii) The Committee of Ministers is invited to take note in particular of the following:
- the concerns of the CDCJ over the change in the procedure for preparing the terms of reference of steering committees and the subsequent lack of adequate consultation in preparing the draft terms of reference and activities for 2012-13 and its wish that it be fully consulted on the next occasion (see paragraphs 10-13 and the letter to the Chairperson of the Committee of Ministers in Appendix IV);
- the proposals of the Austrian authorities concerning the theme for the 31st Council of Europe Conference of Ministers of Justice (Vienna, September 2012) (see paragraph 23);
- the conclusions of the 4th Council of Europe Conference on Nationality (Strasbourg, 17 December 2010) (see paragraph 7 and Appendix III).
DECISIONS AND ITEMS DISCUSSED
A. Completed activities
Rights and legal status of children and parental responsibilities
1. CDCJ took note of the reports of the final meetings of the Committee of Experts on Family Law (CJ-FA) responsible for preparing the draft recommendation and thanked it for its work.
2. CDCJ examined the draft recommendation on the rights and legal status of children and parental responsibilities. After a detailed exchange of views and taking account of the various comments received, CDCJ approved the text3 as it appears in document CM(2011)158 add (to be issued). It instructed the Secretariat to transmit the text to the Committee of Ministers for adoption.
3. In the light of its examination of the draft recommendation on the rights and legal status of children and parental responsibilities, CDCJ examined and modified the draft explanatory memorandum to the draft recommendation. The Committee adopted the text as it appears in document CM(2011)158 add2 (to be issued), and authorised its publication subject to adoption of the recommendation by the Committee of Ministers and any consequent changes that may be required.
4. The delegations of Belgium, the Netherlands, Norway, Poland and Sweden made statements concerning their vote as they appear in Appendix II which they requested to be recorded in the report of the meeting.
5. The Maltese delegation did not participate in the vote. It wished to have recorded its request for more time to consider the draft texts.
B. On-going activities
Role of prosecutors outside the criminal law field
6. CDCJ took note of the reports of the 1st and 2nd meetings of the Group of Specialists responsible for preparing a draft recommendation on the role of prosecutors outside the criminal law field (CJ-S-PR) and approved the Group’s approach to its work. The Committee also took note of the fact that its Bureau had already had an opportunity to comment on the preliminary work of the Group and made some of its own suggestions.
7. CDCJ took note of the conclusions of the 4th Council of Europe Conference on Nationality (Strasbourg, 17 December 2010) as they appear in Appendix III and agreed to draw them to the attention of the Committee of Ministers.
8. CDCJ took note of the analysis of the treatment of administrative law proceedings within the scope of Article 6 of the European Convention on Human Rights prepared by the Registry of the Court at the request of Bureau of the Committee.
C. Future activities
Reform of the intergovernmental structures
9. CDCJ took note of the proposals to reform the intergovernmental structures and, in particular, the current progress in preparing new terms of reference for the Committee. It also took note of the recent changes in the organisation of the Secretariat that had been introduced to accompany the reform, including changes within the Secretariat responsible for the Committee.
10. The Committee took note of the change in procedure for preparing the terms of reference of steering committees and expressed its concern at the lack of adequate consultation of it in the procedure. It expressed the wish that it would be fully consulted in similar exercises in future.
11. Moreover, CDCJ expressed its concern at the limited scope of the draft terms of reference, in particular the absence of a reference to nationality law, to justice and the rule of law, and to data protection. With respect to data protection, the Committee highlighted the importance of its participation in any standard-setting activities in this area (including the revision of existing standards).
12. The Committee instructed its current and incoming chair to address a letter to the Chairperson of the Committee of Ministers expressing the Committee’s concerns and wishes regarding its terms of reference and future activities. The letter is reproduced in Appendix IV.
Standard-setting activities (2012-13)
13. CDCJ took note and approved the two new standard-setting activities selected by its Bureau, whilst expressing its misgivings at the precipitous manner in which they had had to be selected, namely :
(i) standards on dispute resolution in the exercise of parental responsibilities, in particular as concerns decisions on the relocation of children (factors to be taken into account and procedures to be followed),
(ii) protecting public and private sector employees who make disclosures in the public interest (“whistleblowers”).
14. The Committee held a preliminary exchange of views on how these activities might be implemented. It instructed its Bureau to prepare a detailed work plan for each activity, including preparation of draft terms of reference for any expert groups that might be necessary, and taking account of the views expressed by its members.
15. Furthermore, CDCJ expressed the wish to be able to undertake an additional standard-setting activity during 2012-13 in the field of nationality, subject to the necessary resources being made available.
16. Moreover, CDCJ recalled that work on preparing a draft recommendation on the role of public prosecutors outside the criminal law field would be completed in 2012.
Updating existing standards
17. CDCJ took note of the oral information provided by the Secretariat that the Bureau of the European Commission for the Efficiency of Justice (CEPEJ) was favourable to the request made by the Bureau of CDCJ to give technical guidelines to CDCJ on the necessary revisions to be made to the recommendations indicated in Resolution No. 1 on a modern, transparent and efficient justice of the 30th Conference of Ministers of Justice and also on Recommendation No. R (86) 12 concerning measures to prevent and reduce the excessive workload in the courts.
18. The Committee noted that a working group of its members would need to be established to prepare the revised recommendations so soon as CEPEJ had provided the requested technical guidelines.
19. CDCJ confirmed its wish to be actively involved in the modernisation of the Convention for the Protection of Individuals with regard to Automated Processing of Personnal Data (ETS No. 108). It stressed the importance of ensuring the correct profile of technical and political expertise in the composition of the body that will be responsible for this work and of its task being clearly defined.
Proposal to establish a digital legal information library
20. In respect of the proposal to establish a digital legal information library and a platform for the exchange of information on ICT projects as proposed in Resolution No. 1 of the 30th Conference of Ministers of Justice (a modern, transparent and efficient justice), CDCJ agreed to advise the Committee of Ministers that such a project would be too ambitious for the Council of Europe in the current circumstances, notably in terms of the limited human and financial resources.
Identifying future standard-setting activities
21. CDCJ agreed to undertake comparative studies with a view to identifying possible future standard-setting activities on the topics set out below and instructed the Secretariat to take the necessary steps to commission them:
(i) identification of lacunae in matters of nationality law (with reference to the conclusions of the 4th Council of Europe Conference on Nationality),
(ii) privatisation and its impact on public and private law,
(iii) problems encountered in the service/enforcement of administrative law decisions/documents abroad,
(iv) challenges to the rule of law, with particular reference to the fields of civil and administrative law.
22. Furthermore, the Committee agreed to invite CEPEJ to make proposals for the future work of CDCJ in the form of an action plan which would include the means to improve the training of judges and of other court staff.
31st Council of Europe Conference of Ministers of Justice
23. CDCJ took note of the proposals of the Austrian authorities in respect of the possible themes for the 31st Council of Europe Conference of Ministers of Justice (Vienna, September 2012), namely, a principal theme on the response of justice to urban violence and a possible sub-theme on corruption, in particular the seizure of assets.
24. CDCJ welcomed the proposals and thanked the Austrian authorities for them. The seizure of assets in the context of corruption appeared to some members of the Committee of particular interest.
25. The Committee took note of the new rules governing the holding of specialised ministerial conferences and, subject to the Committee of Ministers giving its approval, instructed its Bureau to proceed with the preparation of the conference in co-operation with the Austrian authorities, the Bureaux of CDPC and CDDH as well as with the Secretariat, with particular reference to the future activities to be undertaken as a follow-up to the conference.
26. CDCJ instructed the Bureau to review the Committee’s working methods in light of its new terms of reference with a view to improving the efficiency of its work: for example, conduct and organisation of debates (including deadlines for the submission of comments on draft texts), number and length of documents, transmission of documents, consultations, decisions by written procedure.
27. The Committee took note of the decision of the Secretariat to replace a number of items previously presented in paper format (Committee of Ministers decisions, adopted opinions and reports of its representatives on other Council of Europe meetings and external events) with special pages on its website. Moreover, the Committee instructed the Secretariat to include additional pages on its website covering, for example, its origins, terms of reference, Committee rules and procedures, profile of members, activities (past and present).
D. Other items discussed
Review of Council of Europe conventions
28. CDCJ took note of the assessment undertaken by its Bureau of the Council of Europe conventions within its field of competence for the purposes of the Secretary General’s review. It also noted that the Secretary General would shortly make available his draft report for comment.
29. CDCJ took note of the various opinions adopted since the last meeting of the Committee, either by written procedure or by the Bureau on its behalf.
Work of other Council of Europe bodies
30. CDCJ welcomed the report and recommendation on “Sanctions and liabilities in respect of NGOs” prepared by the Expert Council on NGO Law of the Conference of INGOs. The Committee noted the importance of NGOs for democracy and the rule of law and the need to support their work.
31. CDCJ took note of the preliminary draft revision of Recommendation No. R (89) 2 on the protection of personal data used for employment purposes prepared by the Bureau of the Data Protection Committee (T-PD) and of the comments submitted by its own members. It also took note of the work being undertaken to modernise Convention ETS No.108.
32. CDCJ took note of the progress in preparing the Council of Europe strategy on internet governance and of the reports of its members on the work of the various Council of Europe bodies in which the Committee is represented.
33. CDCJ took note of the reports of its representatives.
Follow-up to the child-friendly justice guidelines
34. CDCJ took note of and welcomed the activities undertaken by other bodies of the Council of Europe to implement the child-friendly justice guidelines, adopted by the Committee of Ministers on 17 November 2010 (set out in the annotated draft agenda, document CDCJ (2011) 5). It also welcomed their promotion by the EU Agenda for children’s rights and its call for them to be taken into account in future legal instruments in the field of civil and criminal justice.
Elections and appointments
35. Mr Eberhard Desch (Germany) was elected chair for a first term of one year.
36. Mr Francesco Crisafulli (Italy) was elected vice-chair for a first term of one year.
37. Ms Diana Scobiólă (Moldova) was elected to the Bureau for a second term of two years and Mr João Arsénio de Oliveira (Portugal) was elected to the Bureau for a first term of two years.
38. Ms Zuzana Fišerova (Czech Republic) was elected to the Bureau for a first term of one year (rule Article 13 c).
39. Mr Isaac Jansen (the Netherlands) was elected to the Bureau for a first term of two years (effective from 1 January 2012 and subject to the addition of a seat in the Committee’s new terms of reference).
40. As a result of the above elections, the Bureau of CDCJ is composed as follows :
Chair : Mr Eberhard Desch (Germany)
Vice-chair : Mr Francesco Crisafulli (Italy)
Bureau members : Mr Miloš Hatapka (Slovak Republic)
Mr João Arsénio de Oliveira (Portugal)
Ms Zuzana Fišerova (Czeck Republic)
Mr Isaac Jansen (Netherlands), as of 1 January 2012.
41. CDCJ agreed that at its next meeting the Bureau should appoint one of its members as the CDCJ gender equality rapporteur (effective from 1 January 2012 and subject to provision being included for this appointment in the Committee’s new terms of reference).
42. CDCJ instructed its Bureau to appoint the Committee’s representatives to other bodies of the Council of Europe and external events at its next meeting, and invited its members to indicate their interest to the Secretariat.
Date and place of next meeting
43. CDCJ agreed to hold its next plenary meeting in Strasbourg on 18-20 June 2012.
II. Adoption of the agenda
III. Statement of the Chair and Secretariat
IV. Rights and legal status of children and parental responsibilities
- Draft recommendation (examination and approval)
- Draft explanatory memorandum (examination and adoption)
V. Ongoing Activities
- Role of Prosecutors outside the criminal law field (CJ-S-PR)
VI. Council of Europe Reform
- New intergovernmental structures
- CDCJ terms of reference, working methods and activities (2012-13)
VII. Review of Council of Europe conventions
IX. Work of other Council of Europe bodies
X. NGOs – legal status, sanctions and liabilities
XI. External Co-operation
XII. Elections and appointments
XIII. Any other business
XIV. Date and place of next meeting
Statements of Delegations concerning the vote on the Draft Recommendation on rights and legal status of children and parental responsibilities
Belgium has abstained in light of the current political situation and the wish not to commit the newly-formed government.
Netherlands supports the statement of the Norwegian delegation
Norway would like to have the following recorded in the minutes of the meeting:
Norway has voted in favour of the recommendation as a whole. However, Norway regrets the weakening of the draft recommendation on points that are intended to set standards, in the best interest of the child, restricted to those countries that permit same sex marriage or same sex partnerships, in particular Principle 17, paragraph 3, concerning maternal affiliation (from the version modified and approved by the Bureau of CDCJ at its 89th meeting, 6-7 July 2011).
The Delegation of Poland takes note of the draft Recommendation on the rights and legal status of children and parental responsibilities, and welcomes the progress which has been made during the 86th Plenary meeting of the CDCJ.
Nevertheless, Poland would like to underline that the draft Recommendation still deals with some sensitive and controversial issues that require further reflection.
In this regard, the draft will be subject to the consultation by competent national authorities.
Poland reserves its right to express its final position on the draft only after the finalisation of the abovementioned internal consultations.
Sweden supports a recommendation on the rights and legal status of children and parental responsibilities. The reason for Sweden to vote against the recommendation is that we cannot accept the deletion of the Principle 17, paragraph 3 (from the version modified and approved by the Bureau of CDCJ at its 89th meeting, 6-7 July 2011).
For Sweden, it is evident that the recommendation states which rights should apply also to children in member states that offer medically-assisted procreation to same sex couples. We cannot support that the recommendation does not cover the issue of which rights these children have.
4th Council of Europe Conference on Nationality on “Concepts of Nationality in a Globalised World” (Strasbourg, 17 December 2010)
The participants at the 4th Council of Europe Conference on Nationality on the theme “concepts of nationality in a globalised world”, having discussed the various topics introduced and the problems identified by the speakers, recalled that the Council of Europe is uniquely placed by being the only European international organisation competent on issues of nationality. They called upon the Council of Europe to take account of the discussions at this Conference, and for this purpose to both continue and reinforce its work on nationality as one of its core concerns and, in particular, to take the actions set out below.
1) Consider possible new standards, principles and rules with regard to (in no particular order):
- access to nationality as a fundamental human right;
- preventing and avoiding statelessness, and protecting the rights of stateless persons in accordance with international standards ;
- preventing the misuse of nationality laws (e.g. change of identity);
- the concepts of residence and their relevance in the context of naturalisation;
- the substantive grounds and procedural safeguards for loss, in particular deprivation, of nationality;
- the desirability of an additional protocol to the European Convention on Human Rights on a right to a nationality or, otherwise, of an effective monitoring mechanism for such a right;
- facilitating naturalisation for refugees and stateless persons;
- the consequences of multiple nationality for private international law;
- facilitating the recovery of previous nationality for persons who lose or are deprived of a nationality.
2) Pay particular attention in its future work to (in no particular order):
- an assessment of the level of ratification and implementation of the European Convention on Nationality and of the appropriateness of updating the Convention ;
- promoting further accessions to the Council of Europe nationality Conventions CETS No. 166 and No. 200;
- the implementation of standards aiming at preventing and avoiding statelessness, and of safeguards protecting the rights of stateless persons as well as the drawing up of guidelines on this matter, taking into account the findings of the relevant Council of Europe bodies;
- the consequences of European Union Citizenship and general principles of law on nationality laws and policy of Council of Europe member states, in cooperation with the European Union;
- the implementation of safeguards in respect of voluntary renunciation of nationality and changes of nationality;
- information exchange (including data gathering on nationality and nationality details in individual cases) and examples of best practices, including outside Europe’s borders;
- proof of nationality and the 1999 Convention No. 28 of the International Commission on Civil Status (ICCS) on the issuance of a certificate of nationality;
- the drafting of a model agreement on multiple nationality, in full respect of data protection principles;
- the links between nationality and migration management, with attention to the extraterritorial elements of nationality;
- the relationship between integration and nationality; and
- more generally, the role and place of nationality for both states and individuals in a globalised world.
3) Ensure regular meetings of a Council of Europe expert forum on nationality (such as previously the Committee of Experts on Nationality) and continuous information exchange between its members as a key tool in shaping and advancing the work of the Council of Europe on nationality issues.
Letter to the Chairperson of the Committee of Ministers
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 CDCJ website: www.coe.int/cdcj, CDCJ e-mail: firstname.lastname@example.org
3 The vote was as follows : 23 votes for – Austria, Croatia, Czech Republic, Denmark, Finland, France, Georgia, Germany, Greece, Ireland, Latvia, Liechtenstein, Moldova, Netherlands, Norway, Portugal, Romania, Russian Federation, Slovak Republic, Slovenia, Spain, Switzerland, « the former Yugoslav Republic of Macedonia » ; 2 votes against – Italy, Sweden ; 8 abstentions – Azerbaijan, Belgium, Hungary, Monaco, Poland, Turkey, Ukraine, United Kingdom.