2002cm4






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    Ministers’ Deputies
    CM Documents

    CM(2002)4 17 January 2002

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    784 Meeting, 21 February 2002
    10 Legal questions


    10.1 European Committee on Legal Co-operation (CDCJ)

    Abridged Report of the 76th meeting

    Strasbourg, 4-7 December 2001 1

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    LIST OF ITEMS DISCUSSED AND DECISIONS TAKEN

    1. The European Committee on Legal Co-operation (CDCJ) met in Strasbourg from 4 to 7 December 2001. The agenda appears in Appendix I.

    ITEMS SUBMITTED TO THE COMMITTEE OF MINISTERS FOR DECISION

    2. The CDCJ invited the Committee of Ministers:

    a. to adopt the text of the draft Convention on contact concerning children, to decide on the date and place of the opening to signature and to authorise the publication of the text of its explanatory report (see item 4 of the agenda and the Addendum to this report);

    b. to approve the revised terms of reference of the following Committees:

    i. the Project Group on administrative law (CJ-DA)
    (see item 12.a of the agenda and Appendix V to this report);

    ii. the Committee of experts on nationality (CJ-NA)
    (see item 12.b of the agenda and Appendix VI to this report).

    ITEMS SUBMITTED TO THE COMMITTEE OF MINISTERS FOR INFORMATION

    3. The CDCJ forwarded for the attention of the Committee of Ministers Opinions on:

    a. Parliamentary Assembly Recommendation 1500 (2001) on participation of immigrants and foreign residents in political life in the Council of Europe member States (see item 8.a of the agenda and Appendix IV to this report);

    b. Parliamentary Assembly Recommendation 1443 (2000) on international adoption : respecting children’s rights (see item 8.b of the agenda and Appendix V to this report);

    4. The CDCJ forwarded for the attention of the Secretary General its report on the measures taken to implement Resolution Res(2001)6 (on access to Council of Europe documents) and on any problems encountered (see item 7 of the agenda and Appendix III to this report).

    5. The CDCJ invited the Committee of Ministers to note:

    a. the discussions of the CDCJ concerning the Multidisciplinary Group on international action against terrorism (GMT) (see items 10.e and 15 of the agenda);

    b. the discussions of the CDCJ concerning its future activities, the priority nature of its work and the need to ensure the availability of sufficient resources to enable it to carry out as rapidly as possible its programme of activities (see item 13.b of the agenda). The CDCJ noted that it would only have one meeting in 2002 and that the CJ-IT would no longer meet. The CDCJ underlined the importance of information technology in the efficiency and modernisation of justice;

    c. that the CDCJ had authorised the publication of the White Paper prepared by the Committee of experts on family law (CJ-FA) on principles concerning the establishment and legal consequences of parentage (see item 10.a of the agenda);

    d. that the CDCJ had, following a proposal from the Committee of experts on nationality
    (CJ-NA), requested the opinion of the Committee of Legal Advisers on public international law (CAHDI) concerning the possibility of a partial renunciation of the Convention on the reduction of cases of multiple nationality and military obligations in cases of multiple nationality [ETS No 63] (see item 10.a of the agenda).

    6. The CDCJ considered:

    a. the question of electronic signatures (see item 5 of the agenda);

    b. the work carried out under its authority and took a number of decisions concerning the activities of certain committees and conferences (see items 10 and 11.c of the agenda);

    c. the follow-up to the 24th Conference of European Ministers of Justice (Moscow, 4 and 5 October 2001) (see item 11.a.i of the agenda);

    d. the preparation of the 25th (Sofia, Spring 2003) and 26th (Finland, 2004) Conferences of European Ministers of Justice (see item 11.a.ii of the agenda);

    e. the Conclusions of the 2nd European Conference on nationality (Strasbourg, 8 to
    10 October 2001) (see item 11.b of the agenda);

    f. the follow-up to the Convention on information and legal co-operation concerning “Information Society Services” (see item 14.a of the agenda).

    7. The CDCJ took note of:

    a. the opinion for the attention of the Multidisciplinary Group on corruption (GMC) adopted by the Bureau of the CDCJ on the draft Recommendation on common rules against corruption in the funding of political parties and electoral campaigns (see item 6 of the agenda);

    b. information concerning other legal work carried out within the Council of Europe (see item 21.a of the agenda);

    c. information concerning the work carried out by the European Union on matters of interest to the CDCJ (see item 21.b of the agenda).

    8. The CDCJ elected Mr E. KILBY (United Kingdom) as Chair for one year and Mr E. DESCH (Germany) as Vice-Chair for one year. It re-elected Mr I. BACKER (Norway) and Mrs C. LUZESCU (Romania) as members of its Bureau for two years. It elected Mrs R. DEMOUSTIER (Belgium) as a member of its Bureau for two years and Mr J. JANSEN (the Netherlands) as a member of its Bureau for one year (see item 16 of the agenda).

    9. The CDCJ decided to hold its next meeting during the week beginning 27 May 2002 (see items 19 and 20 of the agenda).

    10. Finally the CDCJ invited the Committee of Ministers to take note of this report as a whole.

    Appendix I

    Agenda

    1. Opening of the meeting

    2. Adoption of the agenda

    3. Statement by the Secretariat

    4. Adoption of the draft Convention on contact concerning children and its draft explanatory report

    5. Examination of the question of electronic signatures in European States

    6. Opinion adopted by the Bureau of the CDCJ on the draft Recommendation on common rules against corruption in the funding of political parties and electoral campaigns

    7. Adoption of a report on the measures taken to implement Resolution Res(2001)6 (on access to Council of Europe documents) and on any problems encountered

    8. Approval and transmission to the Committee of Ministers of Opinions

    9. Decisions of the Committee of Ministers concerning the CDCJ

    10. State of work of committees of the CDCJ and work of Convention and other Committees of direct interest to the CDCJ

    11. Conferences and Colloquies in the legal field

    12. Adoption of revised terms of reference of Committees of experts

    13. Proposals for future activities

    14. Conventions or Recommendations

    15. Appointments

    16. Elections

    17. Tasks to be given to the Bureau of the CDCJ

    18. Adoption of the report of the CDCJ

    19. Agenda of the 77th meeting of the CDCJ

    20. Calendar of future meetings

    21. Legal work carried out outside the CDCJ

    22. Any other business

    Appendix II

    Report to the Secretary General on the measures taken
    to implement Resolution Res(2001)6 (on access to Council
    of Europe documents) and on any problems encountered

    1. The CDCJ took note of Resolution Res (2001) 6 on access to Council of Europe documents and the letter of the Secretary General to the Chairpersons of Steering Committees requesting, during the first half of 2002, a detailed report on the measures taken to implement the Resolution and on any problems encountered. The CDCJ also took note of the decisions taken by the Committee of Ministers at the Deputies’ 756th meeting (12 to 14 June 2001, item 1.5.a) and the report presented at the meeting by Ambassador Warin, the Ministers’ Deputies’ Rapporteur on information policy.

    2. The CDCJ recalled the rules governing access to documents, namely :

    i. documents not subject to any particular classification are public;

    ii. documents classified “restricted” are declassified a year after being issued;

    iii. document classified “confidential” are declassified 10 years after being issued;

    iv. documents classified “secret” are declassified 30 years after being issued.

    3. During the last four years the question of access to documents has been discussed on numerous occasions by the CDCJ and its Bureau. Delegations fully supported the action taken by the Committee of Ministers to make the Council of Europe’s work more transparent and open, and so increase the interest it inspired in specialised circles.

    4. The CDCJ invited the Secretariat General to note that it had taken the following measures to implement the decisions of the Committee of Ministers:

    a. meeting reports of the CDCJ : all reports are public;

    b. documents of the CDCJ: all documents are public;

    c. meeting reports on activities for which the CDCJ is responsible : all reports are public;

    d. documents on activities for which the CDCJ is responsible: all documents are public subject to very few exceptions (see paragraph 6 below).

    5. The CDCJ agreed that the policy on public access included texts under negotiation (eg draft Recommendations or draft Conventions). The CDCJ favoured transparency and noted that meeting reports and other CDCJ documents including documents of its subordinate committees are already available on the CDCJ website and therefore can be consulted not only by delegations but also the general public. The CDCJ noted that in any event there is little to be gained by classifying documents as “restricted”, as they would be declassified a year after being issued. The CDCJ did not favour giving the public out-of-date versions of texts which were being negotiated and agreed that all texts which were being negotiated should indicate that they reflected the work in progress on a given date and that they were subject to amendment. In this way the public would have the latest texts and would be aware that they were not final texts.

    6. The CDCJ considered, however, that in very exceptional cases, for example where texts concern real issues of security, it may be necessary, especially in the light of any future work on terrorism, for a very limited number of documents to be classified.

    Appendix III

    Opinion of the Committee of experts on nationality (CJ-NA)
    on Parliamentary Assembly
    Recommendation 1500 (2001) on participation of immigrants
    and foreign residents in political life
    in Council of Europe member states

    1. Following the adoption by the Parliamentary Assembly of Recommendation 1500 (2001) on the participation of immigrants and foreign residents on the political life of Council of Europe Member States, the Committee of Ministers, in its decision no. CM/778/15022001 of 15 February 2001, adopted ad hoc terms of reference for the CJ-NA, in which the CJ-NA was requested to give its opinion on this Recommendation.

    2. The CJ-NA noted the valuable contributions made by immigrants and foreign residents to society and every-day life of the European States and agreed with the Parliamentary Assembly on the importance of the possession of the nationality of the host country for the full participation in the life of the community.

    3. The CJ-NA welcomed the recommendation by the Parliamentary Assembly to the governments of Member States to ratify, if they have not already done so, the European Convention on Nationality.

    4. The CJ-NA recalled the importance of distinguishing between the issue of granting political rights to foreign residents, on the one hand, and the question of facilitating the acquisition of the nationality of the host State, on the other hand.

    5. As regards the acquisition of the nationality of the host State, the CJ-NA emphasised that one of the aims of the European Convention on Nationality is to identify certain minimum standards for the right to apply for naturalisation. In this respect, the Committee recalled in particular paragraph 3 of Article 6 of this Convention, which provides that: ”Each State Party shall provide in its internal law for the possibility of naturalisation of persons lawfully and habitually resident on its territory. In establishing the conditions for naturalisation, it shall not provide for a period of residence exceeding ten years before the lodging of an application”.

    6. The CJ-NA recalled that the issues of integration and nationality and conditions for the acquisition of nationality were two of the subjects of the 2nd European Conference on Nationality on the theme "Challenges to national and international law on nationality at the beginning of the new millennium" (Strasbourg 8 and 9 October 2001) and drew the attention to the conclusions of this Conference. In accordance with these conclusions, the CJ-NA will pay particular attention in its future work to the relationship between integration and acquisition of nationality.

    7. The CJ-NA emphasised that it is currently preparing a report on conditions for acquisition and loss of nationality, with a view to, inter alia, consider whether current standards concerning acquisition of nationality are sufficient. The CJ-NA will take particular account of Recommendation 1500(2001) when finalising the report.

    Appendix IV

    Opinion of the European Committee on Legal Co-operation (CDCJ) on
    Parliamentary Assembly Recommendation 1443 (2000) on international adoption:
    respecting children’s rights

    1. The CDCJ noted that, following the adoption by the Parliamentary Assembly of Recommendation 1443 (2000) on international adoption: respecting children’s rights, the Committee of Ministers had requested the Committee of Experts on Family Law (CJ-FA) to prepare an Opinion on this Recommendation.

    2. The Opinion of the CJ-FA was submitted to the Committee of Ministers through the intermediary of the CDCJ (see CDCJ(2000)41 item 14 of the agenda and Appendix IX). When submitting this Opinion, the CDCJ invited the Committee of Ministers to note that it had decided, taking into account the suggestion made in the Opinion prepared by the CJ-FA, to forward this Recommendation to the Committee of experts on nationality (CJ-NA) and to request the CJ-NA to give its opinion on the possibility of extending the European Convention on Nationality in order to facilitate the acquisition of the nationality of the receiving country for foreign children who, owing to a failed adoption, would otherwise become stateless.

    3. The CDCJ, on the basis of the opinion of the CJ-NA, adopted the present Opinion for the attention of the Committee of Ministers.

    4. The CDCJ welcomed the initiative of the Parliamentary Assembly to study questions of nationality of children in cases of failed adoption.

    5. The CDCJ recalled that statelessness should not arise if the States concerned applied Article 7, paragraph 1, subparagraph g of the European Convention on Nationality, according to which a State Party may only provide in its internal law for the loss of its nationality ex lege or at the initiative of the State Party in the case of adoption of the child if the child acquires or possesses the foreign nationality of one or both of the adopting parents. The CDCJ also supported the Parliamentary Assembly in encouraging a wider ratification of the Hague Convention of 1993 on the Protection of Children and Co-operation in respect of Inter-Country Adoption.

    6. The CDCJ emphasised that international adoption always involves the legal order of two or more States and that the adoption should have legal effect both in the State of origin of the child and in the State of nationality or residence of the adoptive parents.

    7. The CDCJ expressed its concern over cases where a child is brought from his or her State of origin to another State in view of adoption, but is unable to acquire the nationality of the receiving country although the child remains in this country.

    8. The CDCJ further noted that there are problems other than those of statelessness that may arise from international adoption in the field of nationality. In many States, the adopted child has to reside in the receiving State for a number of years and to fulfil certain other conditions before he or she is eligible for the nationality of this State. The CDCJ noted that the acquisition of the nationality of the receiving State may be further complicated if the adopting family breaks up.

    9. The CDCJ emphasised that the child has the right to a nationality and is of the opinion that this nationality, in case the child would otherwise be stateless, should follow that of the adoptive parents or other persons having parental responsibilities and/or the State where the child has his or her permanent residence.

    10. The CDCJ considered that these problems deserve further attention and that the possible introduction of new rules in this regard, supplementing the European Convention on Nationality, should be deliberated in the context of the current work of the CJ-NA on the conditions for acquisition and loss of nationality.

    Appendix V

    Specific terms of reference

    1. Name of committee:

    Project group on administrative law (CJ-DA)

    2. Type of committee:

    Committee of experts

    3. Source of terms:

    European Committee on Legal Co-operation (CDCJ)

    4. Terms of reference:

    Under the authority of the European Committee on Legal Co-operation (CDCJ), the CJ-DA is instructed:

    1. In the framework of an activity regarding the execution of decisions in the administrative field, including decisions by administrative authorities as well as decisions by courts in the administrative field,

    a. to identify key issues by conducting a survey regarding the situation in member States of the Council of Europe,

    b. to prepare a summary report on the basis of the information gathered,

    c. to consider the feasibility and usefulness of preparing an international instrument in this field, namely a draft recommendation of the Committee of Ministers.

    2. In the framework of an activity regarding the possibility and scope of judicial review of administrative decisions in the member States,

    a. to undertake preparatory work with a view to examining the situation in the Council of Europe member States, in the light of the case-law of the European Court of Human Rights,

    b. to make recommendations to the Committee of Ministers on the basis of the undertaken activities.

    5. Membership of the committee:

    The governments of all member States are entitled to appoint members with the following desirable qualifications: senior officials having responsibilities as regards administrative law and administrative justice.

    The Council of Europe's budget bears travelling and subsistence expenses for one expert per member State.

    The European Community may send a representative, without the right to vote or defrayal of expenses, to meetings of the Committee.

    The Observers with the Council of Europe may send representatives, without the right to vote or defrayal of expenses, to meetings of the Committee: Canada, Holy See, Japan, Mexico, United States of America.

    The following States and/or Organisations may send representatives to the meetings of the
    CJ-DA, without the right to vote or defrayal of expenses: Bosnia-and-Herzegovina, Federal Republic of Yugoslavia, OECD, UN and its specialised organs, the International Commission on Civil Status, the European Public Law Centre and the European Federation of Administrative Judges.

    6. Working structures and methods:

    The CJ-DA may set up working parties and make use of expert-consultants.

    7. Duration:

    These terms of reference shall be reviewed before 31 December 2003.

    Appendix VI

    Specific terms of reference

    1. Name of committee:

    Committee of experts on Nationality (CJ-NA)

    2. Type of committee:

    Committee of experts

    3. Source of terms:

    European Committee on Legal Co-operation (CDCJ)

    4. Terms of reference:

    In the light of the provisions of the European Convention on Nationality and following the conclusions and proposals of the 2nd European Conference on Nationality (Strasbourg, October 2001), the Committee is instructed, under the authority of the CDCJ:

    a. Conditions for the acquisition and loss of nationality

    - to finalise a report on the conditions for acquisition and loss of nationality. This work is to be carried out by the CJ-NA on the basis of a document prepared by its Working Party and is to be submitted to the CDCJ in 2002 with any proposals for action in this field, including the preparation of one or more international instruments.

    b. Statelessness in relation to State succession

    - to prepare principles and rules concerning the avoidance of statelessness in relation to State succession having regard to the feasibility study on this issue adopted by the CJ-NA in 2001. This work is to be carried out by the CJ-NA and its Working Party in 2002/2003 and is to be submitted to the CDCJ with proposals for the preparation of one or more international instruments in this field.

    c. Implementation of the European Convention on Nationality

    - to encourage States, where necessary by providing them with appropriate assistance, to implement the principles and rules of the European Convention on Nationality in their internal legislation and practices and to implement other relevant international instruments in this field. The CJ-NA will also follow up the steps taken by States to implement the European Convention on Nationality.

    d. Preparation of the 3rd European Conference on Nationality

    Having taken note of the success of the 1st and the 2nd European Conferences on Nationality and considering the variety of problems in the field of nationality, to prepare the 3rd European Conference.

    5. Membership of the Committee:

    a. All member States may designate representatives to the Committee. These representatives should be specialists in the subject matter.

    The Council of Europe's budget bears travelling and subsistence expenses for one representative per member State.

    b. The European Commission and the General Secretariat of the Council of the European Union may send representatives, without the right to vote or defrayal of expenses, to meetings of the Committee.

    c. The following may attend the meeting of the Committee, without the right to vote or the defrayal of expenses 2 :

    - Canada,
    - Holy See,
    - Japan,
    - Mexico,
    - United States of America,

    *Belarus,
    *Bosnia and Herzegovina,
    * Federal Republic of Yugoslavia,
    *Kyrgyzstan,

    - The Hague Conference on Private International Law,
    - The International Commission on Civil Status,
    - United Nations High Commissioner for Refugees (UNHCR),
    - International Organisation for Migration (IOM).

    6. Working structures and methods:

    Working Parties. Conferences. Management of the European Documentation Centre on Nationality (EURODOC).

    7. Duration:

    These terms of reference shall be reviewed before 31 December 2003.

Note 1 The list of participants can be obtained from the Directorate General of Legal Affairs (DG I). The detailed report of the meeting (document CDCJ(2001)33) may be obtained from the Directorate General of Legal Affairs or consulted on the Web site of the CDCJ ( http://www.legal.coe.int/cdcj ).
Note 2 Subject to specific rules applicable to States marked *.


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