Ministers' Deputies
CM Documents

CM(2005)78 13 May 20051
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930 Meeting, 15 June 2005
10 Legal questions


10.1 European Committee on Legal Co-operation (CDCJ) –

a. Abridged report of the 80th plenary meeting (Strasbourg, 20-22 April 2005)
b. Draft protocol on the avoidance of statelessness in relation to state succession

c. Draft Recommendation Rec(2005)… of the Committee of Ministers to member states
containing an application form for legal aid abroad for use under the European Agreement on the transmission of applications for legal aid (CETS No. 092) and its Additional Protocol (CETS No. 179)
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BRIEF FOREWORD

1. The European Committee on Legal Co-operation (CDCJ) met in Strasbourg from 20-22 April 2005. The agenda appears in Appendix I and the list of participants can be obtained from the DG I.

ITEMS SUBMITTED TO THE COMMITTEE OF MINISTERS FOR DECISION

2. The CDCJ invites the Committee of Ministers:

a. to adopt the draft Protocol on avoidance of statelessness in relation to state succession and to take note of the draft explanatory report thereto (see item 3 of the agenda and Appendix IV to this document);

b. to adopt the draft Recommendation containing an application form for legal aid abroad for use under the European Agreement on the transmission of applications for legal aid (CETS 092) and its Additional Protocol (CETS 179) (see item 10 of the agenda and Appendix V to this document);

c. to take note of the Opinion on the Parliamentary Assembly Recommendation 1648 “Consequences of European Union enlargement for freedom of movement between Council of Europe member states”, (see item 4 of the agenda and Appendix VI to this document);

d. to approve the draft specific terms of reference of the Committee of Experts on nationality (CJ-NA) (see item 5.1.a of the agenda and Appendix VII to this document);

e. to approve the draft specific terms of reference of the Project Group on administrative law (CJ-DA) (see item 5.2.a of the agenda and Appendix VIII to this document);

f. to take note of the present report as a whole.
ITEMS SUBMITTED TO THE COMMITTEE OF MINISTERS FOR INFORMATION

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

a. its decision to adopt a note on "Priorities of the European Committee on Legal Co-operation (CDCJ)" to be transmitted to the Chair of the Committee of Ministers (see item 5.9 of the agenda and Appendix II to this document);

b. that, subject to any decision to be taken by the Committee of Ministers as a follow-up to Resolution No. 1 on Seeking Legal Solutions to Debt Problems in a Credit Society, adopted at the 26th Conference of European Ministers of Justice, the CDCJ instructed the Secretariat to engage an expert to prepare a report on this issue on the basis of materials of the Ministerial Conference, and entrusted the Bureau of the CDCJ to initiate this activity as it considers appropriate (see item 5.5 of the agenda);

c. its decision to instruct the Secretariat to commission an expert to prepare a report analysing the replies to the questionnaire on access to genetic information for questions not related to health with a view to its publication and also to indicate possible future action in this field (see item 5.7 of the agenda);

d. its understanding of the functions of the Consultative Committee of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (T-PD), as a Conventional Committee, as being exhaustively described in Article 19 of Convention 108. Therefore the CDCJ is of the opinion that future legal instruments of a general nature which could be prepared by the T-PD should be examined by the CDCJ in accordance with its competence in this field as provided by its terms of reference before such an instrument is submitted to the Committee of Ministers (see item 6.1 of the agenda);

e. its decision to address the European Commission on the Efficiency of Justice (CEPEJ) with the request to examine the Opinions of the Consultative Council of European Judges (CCJE) with the view to prepare an action plan to be considered by the CDCJ with regards to its possible future activity in the field of judicial standards (see item 5.4 of the agenda);

4. The CDCJ considered:

a. the preparation of the 27th Conference of European Ministers of Justice (Yerevan, Armenia in Autumn 2006) (see item 7.3 of the agenda);

b. the methods of its future work concerning adequacy of legal instruments in the field of the CDCJ's competence to present and future needs of the Council of Europe, and entrusted the Bureau to continue this consideration and to prepare a proposal for the next CDCJ Plenary meeting in 2006 (see item 8.1 of the agenda);

c. a possible follow-up to the Report on “Medical Liability in Council of Europe member states” prepared by a scientific expert and instructed the Secretariat to transmit the Report to the Steering Committee on Bioethics (CDBI) and the European Health Committee (CDSP) for their views, and entrusted the CDCJ Bureau to follow the developments in this area with a view to enable the CDCJ to take a stand on this matter at its next Plenary meeting in 2006 (see item 5.8 of the agenda);

d. the report on the Legal Framework for the Setting-up and Functioning of Non-governmental Organisations in Europe / Analysis of the Answers to the Questionnaire, prepared by a scientific expert, and, highlighting the importance of NGOs in a democratic society, decided to entrust the Bureau of the CDCJ to follow the future work in this field within the Council of Europe, in the light of the results of the Third Summit of the Council of Europe and those of the Monitoring exercise on “Freedom of Association” of the Committee of Ministers (see item 5.6 of the agenda);

5. The CDCJ took note of:

a. the information provided by the Secretariat concerning the preparations of the 3rd Summit of the Council of Europe;

b. the conclusions of 3rd European Nationality Conference – Nationality and the Child, and decided to make reference to these conclusions in the new draft terms of reference of CJ-NA (see item 7.2 of the agenda);

c. the work of its subordinate committees – the Committee of Experts on Nationality (CJ-NA) and the Project Group on Administrative Law (CJ-DA) (see items 5.1 and 5.2 of the agenda);

d. the work of the European Commission on the Efficiency of Justice (CEPEJ) and the Consultative Council of European Judges (CCJE) (see items 6.2.a and 6.2.b on the agenda);

e. the work of the Committee of Experts on Terrorism (CODEXTER) (see item 6.3 on the agenda);

f. the work of the Multidisciplinary Ad hoc Committee of Experts on the Information Society (CAHSI) (see item 6.4 on the agenda);

g. the work of the Council of Europe related to Children, and in particular that of the Committee of Experts on Children and Families (CS-EF) and the Task Force of the Programme of Action on “Children and Violence”, (see item 6.5 on the agenda);

h. the information of the Secretariat concerning the replies from the CDCJ delegations on the invitation of the CDCJ to inform the Committee of the intention of their states to sign and ratify the European Convention on Information and Legal Co-operation concerning “Information Society Services” (CETS 180), and invited the member states non-member of the European Union to consider the possibility of signing and ratifying this Convention, and inform the Secretariat about this (see item 8.2 on the agenda);

i. the decisions of direct interest to the CDCJ taken by the Committee of Ministers;

6. The CDCJ elected Mr Sjaak JANSEN (Netherlands) as Chair and Mr Pekka NURMI (Finland) as a Vice-chair. It also re-elected Ms Xeni SKORINI-PAPARRIGOPOULOS (Greece) and elected Ms. Nicole COCHET (France) and Mr Séamus CARROLL (Ireland) as members of its Bureau for two years (see item 10 on the agenda);

7. The CDCJ decided to entrust the Bureau with making a final decision concerning the dates of its next Plenary meeting in 2006 (see item 11 on the agenda).

Appendix I

Agenda

1. OPENING OF THE MEETING

2. ADOPTION OF THE AGENDA

I. TEXTS

3. APPROVAL OF THE DRAFT PROTOCOL ON THE AVOIDANCE OF STATELESSNESS IN RELATION TO STATE SUCCESSION

4. APPROVAL OF OPINION ON THE PARLIAMENTARY ASSEMBLY RECOMMENDATION 1648 “CONSEQUENCES OF EUROPEAN UNION ENLARGEMENT FOR FREEDOM OF MOVEMENT BETWEEN COUNCIL OF EUROPE MEMBER STATES

II. ACTIVITIES CONCERNING THE CDCJ

5. FUTURE PRIORITIES AND WORK OF THE CDCJ

5.1 Committee of Experts on Nationality (CJ-NA)

5.1.a Adoption of Terms of Reference

5.2 Project Group on Administrative Law (CJ-DA)

5.2.a Adoption of Terms of Reference

5.3 Committee of Experts on Family Law (CJ-FA)

5.4 Group of Specialists on Judicial Standards (CJ-S-JU)

5.5 Social aspects of justice - seeking legal solutions to debt problems in a credit society

5.6 Legal Status of NGOs

5.7. Questionnaire on access to genetic information for questions not related to health - Responses of the member States

5.8 Medical liability

5.9. SETTING PRIORITIES OF THE CDCJ

6. STATE OF WORK OF OTHER COMMITTEES OF DIRECT INTEREST TO THE CDCJ

6.1 Consultative Committee on the European Convention for the protection of individuals with regard to the automatic processing of personal data (T-PD)

6.2 Work in the field of justice

6.2.a European Commission on the Efficiency of Justice (CEPEJ)

6.2.b Consultative Council of European Judges (CCJE)

6.3 Committee of Experts on Terrorism (CODEXTER) and Group of Specialists on Terrorism and Identity Documents (TER-S-IT)

6.4 Multidisciplinary Ad-hoc Committee of Experts on the Information Society (CAHSI)

6.5 Work of the Council of Europe related to Children

6.5.a Task Force of the Programme of Action on “Children and Violence”

6.5.b Committee of Experts on Children and Families (CS-EF)

7. CONFERENCES AND COLLOQUIES IN THE LEGAL FIELD

7.1 Follow up to the 26th Conference of European Ministers of Justice - Helsinki, Finland, 7-8 April 2005

7.2 3rd European Nationality Conference - Nationality and the Child

7.3 Preparations for the 27th Conference of European Ministers of Justice - Armenia, Autumn 2006

8. COUNCIL OF EUROPE LEGAL INSTRUMENTS

8.1 Council of Europe Instruments in the area of the competence of the CDCJ - Review of their adequacy to present and future needs

8.2 European Convention on Information and Legal Co-operation concerning “Information Society Services” (CETS 180)

9. TASKS TO BE GIVEN TO THE BUREAU OF THE CDCJ

10. ELECTION OF THE CHAIR, VICE-CHAIR AND MEMBERS OF THE BUREAU

11. CALENDAR OF FUTURE MEETINGS

12. OTHER BUSINESS

Appendix II

Priorities of the European Committee on legal co-operation (CDCJ)

The CDCJ believes that steering committees have a crucial role in the intergovernmental cooperation that lies at the heart of the Council of Europe. The CDCJ, in particular through its standard setting work, can contribute significantly to ensuring democratic stability in Europe. A steering committee is in a unique position to take an overview of the areas falling within its particular competence and thus to identify priorities, having regard in particular to questions where the Council of Europe can make unique and excellent contributions for the benefit of the citizens of Europe. Furthermore, by monitoring the progress of work in accordance with the priorities identified, steering committees can also contribute to efficient working methods.

A steering committee should provide a broad overall examination and assessment of proposals for new instruments that have been prepared within its field by experts, working parties or other subordinated committees, where frequently only a limited number of states have participated. The consideration by a steering committee will then allow all member states to participate in the assessment of the proposed instrument with a view to obtaining as broad consensus as possible. Failing this, problems which have not been discussed may surface only during the final consideration by the Committee of Ministers or be overlooked altogether with the result that states might neither sign nor implement the instrument adopted.

In addition, the steering committee has an important role to play in examining the operation of the Council of Europe conventions in force in the area of its competence and thus disseminating good practices and promoting the process of adherence of other member states to those instruments.

***

Private and public law form the essential legal infrastructure in a democratic society and are of particular importance to the civil society. Properly functioning legal and administrative systems are indispensable to peace and stability in Europe.

Within its wide range of competence, the CDCJ has identified topics of political and legal interest which in its view should be given priority for future activity by the Council of Europe. They provide added value for member states and Europe's citizens, they have particular regard to the core values of the Council of Europe: democracy, the rule of law and human rights, and they constitute work in which the Council of Europe can provide a unique contribution.

The CDCJ therefore proposes to the Committee of Ministers that high priority and necessary resources should be given to the following activities:

· To support the fight against terrorism, nationality issues that hamper this fight, such as the abuse of the procedure of naturalisation or nationality laws, should be examined with a view to developing adequate remedies.
· To improve and clarify the legal position of individuals after disasters, whether caused by acts of terrorism, natural catastrophes or other events, a report concerning missing persons, presumption of death and commorientes should be carried out.
· To promote good administration throughout Europe, as an essential element of good governance and for the benefit of the relationship between the administration and citizens, a recommendation, accompanied with a model code of good administration, should be prepared.
· To support the legal position and well-being of children, including children in distress

    - a new Convention on adoption should be prepared, as a matter of priority in the area of family law, as the existing convention appears to fall short of the case law of the European Court on Human Rights and has also been subject of denunciation;
    - the need for an additional instrument on the conditions for the acquisition and loss of nationality of children should be examined in a feasibility study.

· To prevent or help solving debt problems in a credit society by assisting member states to draw upon the experience of other states, an analysis of existing legislation and good practices in member states should be carried out, with a view also to further activities on this topic.

The CDCJ moreover considers it important:

· To assist member states in bringing the laws on matrimonial property regimes and inheritance in keeping with actual family patterns and situations and promote the well-being of the family, a report on these issues initiated some time ago should be completed.

The CDCJ will also consider the following items with a view to possible further activity on:

· The legal status of NGOs, which may perform essential roles in the civil society;
· The desirability of standard-setting in the field of justice, on the basis of an assessment by the CEPEJ in the form of an action plan if appropriate, as requested by the CDCJ, with respect to the issues of opinions given by the CCJE and the work already performed by the CEPEJ.

Appendix III

Dates of the meetings foreseen after 22 april 2005

2005

No meetings foreseen in 2005 concerning the Committee of Experts on Family Law (CJ-FA)

25-26 April 2005

2nd European Conference of Judges, Cracow/Poland

27-29 April 2005

1st meeting of the Working Party of the Consultative Council of European Judges (CCJE-GT), Katowice/Poland

29 June – 1st July

2nd meeting of the Working Party of the Consultative Council of European Judges (CCJE-GT)

14-16 September 2005

1st meeting of the Working Party of the Project Group on Administrative Law (CJ-DA-GT)

19-20 September 2005

30th Plenary meeting of the Committee of Legal Advisers on Public International Law (CAHDI)

12-14 October 2005

22nd plenary meeting of the Committee of experts on Nationality (CJ-NA)

October 2005 (dates to be fixed)

9th Plenary meeting of the Committee of experts on Terrorism (CODEXTER)

23-25 November 2005

6th plenary meeting of the Consultative Council of European Judges (CCJE)

2-3 May 2005

Conference of the European commission for the efficiency of justice (CEPEJ) on evaluating European judicial systems (The Hague - organised in co-operation with the Ministry of Justice of the Netherlands)

23-25 May 2005

3rd meeting of the Working Group of CEPEJ on the evaluation of judicial systems (CEPEJ-GT-EVAL)

14-17 June 2005

Meeting of the CDPC Bureau

15-17 June 2005

5th Plenary meeting of the European Commission for the Efficiency of Justice (CEPEJ)

11-13 July 2005

6th meeting of the Bureau of the Consultative Committee of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (T-PD-Bur)

7-9 December 2005

2nd meeting of the Working Party of the Project Group on Administrative Law (CJ-DA-GT)

Week of the 27 March 2006
or
Week of the 3 April 2006
(dates to be fixed)

55th plenary meeting of the European Committee on Crime Problems (CDPC)

Appendix IV

Draft protocol on the avoidance of statelessness in relation to state succession

Preamble

The member States of the Council of Europe and the other States signatory to this Protocol,

Considering that the avoidance of statelessness is one of the main concerns of the international community in the field of nationality;

Noting that State succession remains a major source of cases of statelessness;

Recognising that the European Convention on Nationality (ETS No. 166), opened for signature in Strasbourg on 6 November 1997, contains only general principles and not specific rules on nationality in case of State succession;

Bearing in mind that, with regard to statelessness in relation to State succession, other international instruments either do not have a binding character or do not address some important issues;

Convinced that for the reasons above there is a need for a comprehensive international instrument on State succession and the avoidance of statelessness which should be interpreted and applied, bearing in mind the principles of the European Convention on Nationality;

Taking into account Recommendation No. R (99) 18 of the Committee of Ministers on the Avoidance and Reduction of Statelessness, as well as the practical experience gained in recent years with regard to State succession and statelessness;

Having regard to other binding international instruments, namely the United Nations Conventions relating to the Status of Stateless Persons and on the Reduction of Statelessness, and the Vienna Conventions on Succession of States in respect of Treaties and on Succession of States in respect of State Property, Archives and Debts;

Having also regard to the draft articles on nationality of natural persons in relation to the succession of States, prepared by the United Nations International Law Commission, contained in the Annex to the United Nations General Assembly Resolution 55/153 of 2001 as well as the Declaration of the European Commission for Democracy through Law (Venice Commission) on the Consequences of State Succession for the Nationality of Natural Persons;

Building upon, but without prejudice to, the general principles established in the international instruments and documents mentioned above, by adding specific rules applicable to the particular situation of statelessness in relation to State succession;

In order to give effect to the principles established in the European Convention on Nationality that everyone has the right to a nationality and that the rule of law and human rights, including the prohibition of arbitrary deprivation of nationality and the principle of non-discrimination, must be respected in order to avoid statelessness,

Have agreed as follows:

Article 1 – Definitions

For the purposes of this Protocol:

a. “State succession” means the replacement of one State by another in the responsibility for the international relations of territory;

b. “State concerned” means the predecessor State or the successor State, as the case may be;

c. “Statelessness” means the situation where a person is not considered as a national by any State under the operation of its internal law;

d. “Habitual residence” means a stable factual residence;

e. “Person concerned” means every individual who, at the time of the State succession, had the nationality of the predecessor State and who has or would become stateless as a result of the State succession.

Article 2 – Right to a nationality

Everyone who, at the time of the State succession, had the nationality of the predecessor State and who has or would become stateless as a result of the State succession has the right to the nationality of a State concerned, in accordance with the following articles.

Article 3 – Prevention of statelessness

The State concerned shall take all appropriate measures to prevent persons who, at the time of the State succession, had the nationality of the predecessor State, from becoming stateless as a result of the succession.

Article 4 – Non-discrimination

When applying this Protocol, States concerned shall not discriminate against any person concerned on any ground.

Article 5 – Responsibility of the successor State

1. A successor State shall grant its nationality to persons who, at the time of the State succession had the nationality of the predecessor State, and who have or would become stateless as a result of the State succession if at that time:

a. they were habitually resident in the territory which has become territory of the successor State, or

b. they were not habitually resident in any State concerned but had an appropriate connection with the successor State.

2. For the purpose of paragraph 1, sub-paragraph b, an appropriate connection includes inter alia:

a. a legal bond to a territorial unit of a predecessor State which has become territory of the successor State;

b. birth on the territory which has become territory of the successor State;

c. last habitual residence on the territory of the predecessor State which has become territory of the successor State.

Article 6 – Responsibility of the predecessor State

A predecessor State shall not withdraw its nationality from its nationals who have not acquired the nationality of a successor State and who would otherwise become stateless as a result of the State succession.

Article 7 – Respect for the expressed will of the person concerned

A successor State shall not refuse to grant its nationality under Article 5 paragraph 1, sub-paragraph b, where such nationality reflects the expressed will of the person concerned, on the grounds that such a person can acquire the nationality of another State concerned on the basis of an appropriate connection with that State.

Article 8 – Rules of proof

1. A successor State shall not insist on its standard requirements of proof necessary for the granting of its nationality in the case of persons who have or would become stateless as a result of State succession and where it is not reasonable for such persons to meet the standard requirements.

2. A successor State shall not require proof of non-acquisition of another nationality before granting its nationality to persons who were habitually resident on its territory at the time of the State succession and who have or would become stateless as a result of the State succession.

Article 9 – Facilitating the acquisition of nationality by stateless persons

A State concerned shall facilitate the acquisition of its nationality by persons lawfully and habitually residing on its territory who, despite Articles 5 and 6, are stateless as a result of the State succession.

Article 10 – Avoiding statelessness at birth

A State concerned shall grant its nationality at birth to a child born following State succession on its territory to a parent who, at the time of State succession, had the nationality of the predecessor State if that child would otherwise be stateless.

Article 11 – Information to persons concerned

States concerned shall take all necessary steps to ensure that persons concerned have sufficient information about rules and procedures with regard to the acquisition of their nationality.

Article 12 – Settlement by international agreement

States concerned shall endeavour to regulate matters relating to nationality, especially with a view to avoiding statelessness, where appropriate by international agreement.

Article 13 – International co-operation

1. In order to adopt appropriate measures to avoid statelessness arising from State succession, States concerned shall co-operate among themselves, including by providing information with regard to the operation of their relevant internal law.

2. For the same purpose as that mentioned in paragraph 1, States concerned shall also co-operate:

a. with the Secretary General of the Council of Europe and the United Nations High Commissioner for Refugees (UNHCR) and,

b. where appropriate, with other States and international organisations.

Article 14 - Application of this Protocol

1. This Protocol applies in respect of a State succession which has occurred after its entry into force.

2. A State concerned may, however, declare by notification addressed to the Secretary General of the Council of Europe at the time of expressing its consent, to be bound by this Protocol, or, at any time thereafter, that it will also apply the provisions of this Protocol to a State succession occurring before the entry into force of this Protocol.

3. If several States concerned make a declaration, as set out in paragraph 2, in respect of the same State succession, this Protocol will apply between the States making such declaration.

Article 15 – Effects of this Protocol

1. The provisions of this Protocol shall not prejudice the provisions of internal law and binding international instruments which are already in force or may come into force, under which more favourable rights are or would be accorded to individuals on the avoidance of statelessness.

2. This Protocol does not prejudice the application of:

a. the European Convention on Nationality, in particular its Chapter VI relating to State succession and nationality;

b. other binding international instruments in so far as such instruments are compatible with this Protocol,

in the relationship between the States Parties bound by these instruments.

Article 16 – Settlement of disputes

Any dispute concerning the interpretation or application of this Protocol shall primarily be settled through negotiation.

Article 17 – Signature and entry into force

1. This Protocol shall be open for signature by the member States of the Council of Europe and the non-member States which have participated in its elaboration. Such States may express their consent to be bound by:

a. signature without reservation as to ratification, acceptance or approval; or

b. signature subject to ratification, acceptance or approval, followed by ratification, acceptance or approval.

Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.

2. This Protocol shall enter into force, for all States having expressed their consent to be bound by the Protocol, on the first day of the month following the expiration of a period of three months after the date on which three member States of the Council of Europe have expressed their consent to be bound by this Protocol in accordance with the provisions of the preceding paragraph.

3. In respect of any State which subsequently expresses its consent to be bound by it, the Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date of signature or of the deposit of its instrument of ratification, acceptance or approval.

Article 18 – Accession

1. After the entry into force of this Protocol, the Committee of Ministers of the Council of Europe may invite any non-member State of the Council of Europe which has not participated in its elaboration to accede to this Protocol.

2. In respect of any acceding State, this Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date of deposit of the instrument of accession with the Secretary General of the Council of Europe.

Article 19 - Reservations

1. No reservations may be made to this Protocol except in respect of the provisions of Article 7, Article 8, paragraph 2 and Article 13, paragraph 2, sub-paragraph b.

2. Any reservation made a State in pursuance of paragraph 1 shall be formulated at the time of signature or upon the deposit of its instrument of ratification, acceptance, approval or accession.

3. Any State may wholly or partly withdraw a reservation it has made in accordance with paragraph 1 by means of a declaration addressed to the Secretary General of the Council of Europe which shall become effective as from the date of its receipt.

Article 20 – Denunciation

1. Any State Party may at any time denounce this Protocol by means of a notification addressed to the Secretary General of the Council of Europe.

2. Such denunciation shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of notification by the Secretary General.

Article 21 – Notifications

The Secretary General of the Council of Europe shall notify the member States of the Council of Europe, any Signatory, any Party and any other State which has acceded to this Protocol of:

a. any signature;

b. the deposit of any instrument of ratification, acceptance, approval or accession;

c. any date of entry into force of this Protocol in accordance with Articles 17 or 18 of this Protocol;

d. any reservation and withdrawal of reservations made in pursuance of the provisions of Article 19 of this Protocol;

e. any notification or declaration made under the provisions of Articles 14 and 20 of this Protocol;

f. any other act, notification or communication relating to this Protocol.

In witness whereof the undersigned, being duly authorised thereto, have signed this Protocol.

Done at ……, the ………, in English and in French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe, to each non-member State having participated in the elaboration of this Protocol and to any State invited to accede to this Protocol.

Appendix V

Draft2 Recommendation Rec(2005)…
of the Committee of Ministers to member states
containing an application form for legal aid abroad for use under the European Agreement on the transmission of applications for legal aid (CETS No. 092) and its Additional Protocol (CETS No. 179)

(adopted by the Committee of Ministers on…
at the… meeting of the Ministers' Deputies)

The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,

Having regard to the European Agreement on the Transmission of Applications for Legal Aid (CETS No. 092), done at Strasbourg on 27 January 1977 (hereinafter referred to as “the Agreement”);

Conscious of the importance of ensuring effective co-operation between the Council of Europe and the European Union, in order to permit persons in an economically weak position to exercise their rights more easily throughout Europe;

Having regard to Recommendation No. R (99) 6 on the improvement of the practical application of the Agreement;

Having regard to the conclusions of the Tampere European Council of 1999;

Having regard to Resolution No. 1 adopted by the European Ministers of Justice at their 20th Conference held in Budapest in 1996, on measures to ensure the fairness and efficiency of justice and, in particular, to reduce undue delays;

Having regard to the Council Directive 2002/8/EC of 27 January 2003 and the practical benefit for the central authorities operating under the Directive and the Agreement to use the same forms,

Recommends that governments of member states:

a. sign and ratify the Agreement and its Additional Protocol (CETS No. 179) as soon as possible, if they have not already done so;

b. use the form contained in Appendix I to this recommendation, together with the form contained in Appendix I of Recommendation Rec(2003)18, when transmitting an application for legal aid to a Party to the Agreement and, wherever possible, accept these forms when it receives them from another Party;

c. complete and send the acknowledgment form contained in Appendix I to the Recommendation Rec(2003)18 to the transmitting authority immediately upon acknowledgment of receipt of an application;

d. send a copy of the translation of the form contained in Appendix I to the Secretary General of the Council of Europe who will ensure that a copy is sent to all central authorities designated under the Agreement;

Decide that Appendix I to this recommendation will substitute Appendix I of Recommendation No. R (99) 6 aimed at improving the practical application of the European Agreement on the Transmission of Applications for Legal Aid.

Appendix I to Recommendation Rec(2005)…

APPLICATION FORM FOR REQUEST OF LEGAL AID ABROAD

INSTRUCTIONS

    1. Before filling in the application form, please read carefully these instructions

    2. All information requested in this form must be provided

    3. Any imprecise, inaccurate or incomplete information may delay the processing of your application

    4. Including Providing false or incomplete information in this application may result in negative consequences in law, e.g. this application for legal aid may be rejected or you may face criminal charges

    5. Please attach all supporting documentation

    6. Please note that this application does not affect the time limits to be observed for commencing judicial proceedings or lodging an appeal

    7. Please date and sign and send the completed form to the competent authority as follows:

O 7.a. You may choose to send your application to the competent transmitting authority of the member state in which you reside. It will then transmit it to the competent authority of the relevant member state. If you decide to proceed in this way, please indicate:

Name of the competent authority in your member state of residence:

Address:

Telephone/Fax/E-mail:

O 7.b. You may choose to send this application directly to the competent authority of another member state, if you know which authority is competent. If you decide to proceed in this way, please indicate:

Name of the authority:

Address:

Telephone/Fax/E-mail: ./..
Are you able to understand the official language or one of the official languages of this country?
O YES Please, indicate which: O NO
Otherwise, in what languages is it possible to communicate with you for legal aid purposes?

A. Details of the person applying for legal aid:

A.1. Gender: O Male O Female
Name and forename (or business name, if applicable):

Date and place of birth:

Nationality:

Identity document type and number:

Address:

Telephone:

Fax:

E-mail:

A.2. If applicable, details of the person representing the applicant if the applicant is a minor or incapable:

Name and forename:

Address:

Telephone:

Fax:

E-mail:

A.3. If applicable, details of the applicant's legal representative (solicitor, agent…):

O in the member state of residence of the applicant:

Name and forename:

Address:

Telephone:

Fax:

E-mail:

O in the member state where the legal aid is to be granted:

Name and forename:

Address:

Telephone:

Fax:

E-mail:

B. Information concerning the dispute for which legal aid is requested:

Please attach copies of any supporting documentation.

B.1. Nature of the dispute (e.g. divorce, child custody, employment, business, consumer, etc.):

B.2. Value of the dispute if the subject of the dispute can be expressed in financial terms (please specify the currency):

B.3. Description of the circumstances of the dispute, including the location and date of the facts of the case, and any evidence (e.g. witnesses):

C. Details of the procedure:

Please attach copies of any supporting documentation.

C.1. Are you the plaintiff or defendant?
Describe your claim or the claim against you:

Name and contact details of the opponent:

C.2. Special reasons, if any, for requesting urgent action on this application, e.g. time limits to be observed for commencing proceedings:

C.3. Do you apply for the full amount or for part of legal aid?
In case you only apply for partial legal aid, please specify what it should cover:

C.4. Please specify whether legal aid is required for obtaining:

      O pre-litigation advice

      O assistance (advice and/or representation) within the framework of extrajudicial procedures

      O assistance (advice and/or representation) within the framework of envisaged legal proceedings

      O assistance (advice and/or representation) within the framework of on-going legal proceedings. If so:

      - Registration number:

      - Dates of hearings:

      - Name of the court:

      - Address of the court:

      O advice and/or representation within the framework of legal proceedings relating to a decision which has already been taken by a judicial authority. If so:

        - Name and address of the judicial authority:

      - Date of the decision:

      - Nature of the case: O Appeal against the decision
      O Enforcement of the decision

C.5. Please specify what additional costs you foresee because of the cross-border nature of the case (e.g. translations or travel):

C.6. Do you have any form of insurance or other rights and facilities which may cover legal expenses in full or in part? If so, please give details:

D. Family situation:

How many people live in your household?

Please, specify their relationship to you (the applicant):

Name and forename

Relationship to the applicant

date of birth
(if children)

Is this person financially dependent on the applicant?

Is the applicant financially dependent on this person?

     

Yes/No

Yes/No

     

Yes/No

Yes/No

     

Yes/No

Yes/No

     

Yes/No

Yes/No

     

Yes/No

Yes/No

     

Yes/No

Yes/No

     

Yes/No

Yes/No

Is there any person who is financially dependent on you who does not live in your household? If yes, specify:

Name and forename

Relationship to the applicant

date of birth (if children)

     
     
     

Is there any person on whom you are financially dependent who does not live in your household? If yes, specify:

Name and forename

Relationship to the applicant

   
   
   

E. Financial information:

Please provide all information about yourself (I), your spouse or partner (II), any person who is financially dependent on you and resides with you (III) or any person you are financially dependent on and with whom you reside (IV).

If you receive other financial contributions than maintenance from a person on whom you financially depend and with whom you do not reside, specify such benefits under “other income” in E.1.

If you provide other financial contributions than maintenance to a person financially dependant on you who does not reside with you, specify such benefits under “other expense” in E.3.

Documentary evidence shall be produced, e.g. income tax return, certificate of entitlement to state benefits, etc.

When providing the information in the tables below, please specify the currency in which the amounts are expressed.

E.1. Average monthly income details

I. Applicant

II. Spouse or partner

III.Dependent persons

IV. Persons supporting the applicant

- earned:
- profit from business:
- pensions:
- maintenance support:
- state benefits
please identify:
1. family and housing allowances:
2. unemployment and social security benefits:
- income from capital (moveable assets, real estate):
- other income:
Total:

       

E.2. Property value

I. Applicant

II. Spouse or partner

III.Dependent persons

IV. Persons supporting the applicant

- real estate used as permanent residence:
- other real estate:
- land:
- savings:
- shares:
- motor vehicles:
- other assets:
Total:

       

E.3. Monthly expenditure

I. Applicant

II. Spouse or partner

III.Dependent persons

IV. Persons supporting the applicant

- income tax:
- social security contributions:
- local government taxes:
- mortgage payments:
- rent and housing costs:
- school fees:
- childcare costs:
- payment of debts:
- repayment of loans:
- maintenance paid to another under a legal obligation:
- other expense:
Total:

       

I declare that the information provided herein is true and complete and I undertake to declare without delay to the authority processing the application any changes in my financial situation.

Date (place and time): Signature:

Appendix VI

Opinion on Parliamentary Assembly Recommendation 1648 (2004) on the Consequences of European Union enlargement for freedom of movement between Council of Europe Member states

Introduction

The CDCJ prepared the present Opinion in accordance with Decision No. CM/863/05052004 of the Committee of Ministers adopted at the 883rd meeting of the Ministers' Deputies on 5 May 2004. The Opinion benefited from the contribution of the Working Party CDCJ-GT-MOV, set up by the CDCJ to prepare the draft Report on “Good practices relating to the movement of persons between the Council of Europe member States” (hereinafter referred to as the “Report”). This Report and its accompanying CDCJ Bureau “message” to the Committee of Ministers provided important background information for the present Opinion. The Committee of Ministers took note of the Report at the 911th meeting of the Ministers' Deputies on 12 January 2005 and authorised its publication at the 920th meeting of the Ministers' Deputies on 23 March 2005.

In addition, the Secretariats of the Ad hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR), the Consultative Committee of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data [ETS 108] (T-PD) and the Group of Specialists on Identity Documents and terrorism (TER-S-IT) were consulted with respect to the provisions of the Recommendation falling within their respective scope of competence.

It should be noted that the present document only deals with recommendations addressed to the Member States (point 8 of the Recommendation), the States Parties to the 1990 Schengen Convention (point 9 of the Recommendation) and to the Committee of Ministers (point 11 of the Recommendation) that fall within the CDCJ mandate3.

Comments4

      8. The Assembly recommends that member states:

      iii. introduce, on the basis of reciprocity, provisions enabling the nationals of Council of Europe member states who hold diplomatic or service passports to make official journeys without a visa;

The CDCJ takes note of the findings of the Report regarding the frequent practice of member states to exempt the holders of diplomatic and other official passports of certain other Council of Europe member states from short-stay visa requirements. The CDCJ also notes that Schengen states5 are under an obligation not to conclude, without prior agreement with the other Schengen states, new agreements in the area of removing visa requirements for holders of diplomatic, official or service passports.

      iv. in relation to those member states which are also members of the European Union (including those which may accede in May 2004), adopt liberal measures with respect to citizens of other Council of Europe member states in those areas of immigration policy not subject to European Union jurisdiction, particularly so as to simplify formalities for obtaining visas and facilitate border-crossing;

      v. in relation to those member states which are not members of the European Union, ensure that they take action to facilitate positive developments in areas of reciprocity, such as the adoption of minimal visa fees and the conclusion of bilateral and multilateral readmission agreements;

The CDCJ takes note of the findings of the Report concerning various simplifications of procedures for obtaining visa and border crossing and short term stay applied by the member states. The CDCJ takes note, in particular, of the recent bilateral agreements concluded between several EU member states adhering to the Schengen Acquis and several non-EU member states that simplify the above-mentioned procedures. These simplifications include reciprocal issue of multiple entry visas valid for one year or more, reduced or abolished visa fees, accelerated visa application processing procedures as well as simplified requirements with respect to supporting documents. Such simplified procedures apply to several categories of persons who travel frequently, such as officials, drivers, business people etc., as well as to persons in need of more favourable treatment for humanitarian reasons, such as senior people.

      vi. facilitate the crossing of borders by setting up at border checkpoints special corridors reserved for the nationals of Council of Europe member states;

The CDCJ notes that the existing border crossing checkpoints reserved for EU nationals have been introduced with the view to reduce border crossing delays for EU nationals who are generally subject only to identity checks while these checks can be more extensive and time consuming in the case of non-EU nationals6. The existence of these separate checkpoints has therefore a practical explanation as a consequence of the freedom of movement achieved within the EU, which does not at present exist among all the Council of Europe member states. Establishing special checkpoints reserved for the nationals of Council of Europe member states is not therefore, in practical terms, feasible in the current situation.

      viii. make good use of their authority to issue long-term national visas for citizens of Council of Europe member states;

The CDCJ notes that “long-stay” visas7 were not dealt with in the Report that focused on the abolition or simplification of procedures concerning “short-stay” visas. The CDCJ considered that short-stay visas were the most important with respect to cross-border contacts between persons and private and business travel. As far as validity of short-stay visas is concerned, the CDCJ notes the findings of the Report concerning, in particular, the provisions of the above-mentioned agreements on simplification of visa procedures. These agreements provide for issue of multiple entry short-stay visas valid for one year or more to such categories of persons as researchers, teachers, students, participants in youth exchange activities, artists, businessmen, officials, persons having family ties in the other country concerned etc. The CDCJ considers the issuing, to such frequent travellers, of multiple entry short-stay visas with an extended validity period as a “good practice”.

      9. The Assembly also recommends that states party to the 1990 Schengen Convention:

      i. expand their consular services in other Council of Europe member states so as to ensure that visas are issued quickly, efficiently and conveniently and in keeping with human dignity.  In this respect, an administrative procedure for control of the processing of visa applications should be instituted and systematised in all consulates;

The CDCJ takes note of the findings of the Report concerning existence in several member states of express rules facilitating transparency – access to legal acts regulating the issue of visas and to information about the practical procedures followed by consular establishments. The CDCJ is of the opinion that such rules should be considered as a “good practice” for all Council of Europe member states and that everyone should have access to such information as a matter of right.

      ii. introduce a presumption regarding visas whereby anyone who makes an application for a visa should benefit from the presumption that it will be issued.  Any refusal should be based on substantiated reasons meeting specific criteria which would withstand a transparency test; 

The CDCJ takes note of the findings of the Report concerning the practices of many member states, which have introduced in their visa rules the notion of “persons considered to be acting in bona fide” and applying to such persons a more favourable treatment. It also notes that certain member states apply the principle of “proportionality” concerning the supporting documents that can be required from visa applicants. Finally, the CDCJ draws attention to the fact that many, albeit not all, Council of Europe member states have express provisions on authorities' obligations to provide reasons for visa refusals as well as information on the appeal mechanisms available.

      iii. increase the number of, and improve the facilities at, border crossings with non-European Union member neighbouring states, in particular through the use of advanced electronic technology;

Even though the issues of border crossing facilities were not directly tackled in the above-mentioned Report, the CDCJ notes that the European Commission's recent Proposal for Regulation8 concerning “local border traffic” envisages, inter alia, the possibility of increasing the number of border crossing points for the benefit of border area residents by way of bilateral agreements between the neighbouring countries concerned. The CDCJ welcomes such an initiative considering that an increased number of border crossing points are especially important in the case of local border traffic. As to new information technology, the CDCJ notes that its application is an important means to accelerate processing of visa applications and border crossing checks.

      iv. take steps to make more widely known to the general public the procedure enabling individuals to acquaint themselves with the information held concerning them in the Schengen Information System (SIS) and, if necessary, to have any inaccurate information rectified.

The CDCJ notes that the right to access and rectification of personal data is a fundamental right of any data subject according to the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108). The right of access to data held in information systems such as the Schengen Information System has been discussed in the Report on the Impact of Data Protection Principles on Judicial Data in Criminal Matters including in the framework of Judicial Co-operation in Criminal Matters , (paragraphs 45 – 47 on the “Right of Access”) prepared by the Project Group on Data Protection (CJ-PD) and adopted by the CDCJ in 2002. This Report takes note of the provisions of Article 109 of the Schengen Convention9 concerning the right of persons to have access to data entered in the Schengen Information System. The conclusion of the Report on this issue is the following: “If a data subject requests access with regard to data about him/her that have been communicated by judicial authorities of another country, the authorities of the originating country should be given the opportunity to state their point of view before the request is granted.”. It corresponds to the provisions of the above-mentioned Article of the Schengen Convention.

      11. Finally, the Assembly recommends that the Committee of Ministers:

      i. undertake a comprehensive study – involving the committees established under relevant Council of Europe treaties, representatives of the European Union and the Assembly – into how existing Council of Europe treaties concerning free movement of persons, criminal justice and public order may be more widely ratified, implemented, co-ordinated and (if necessary) amended or completed, including through the preparation, signature and implementation of a new European convention, so as to establish a comprehensive legal framework within which the greatest possible degree of freedom of movement of persons may be established throughout Europe;

The CDCJ notes that the Recommendation lists the following Council of Europe treaties as pertaining to movement of persons:

- 1955 European Convention on Establishment (ETS No. 19);
- 1957 European Agreement on Regulations Governing the Movement of Persons between Member States of the Council of Europe (ETS No. 25);
- 1977 European Convention on the Legal Status of Migrant Workers (ETS No. 93);
- 1985 European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities (ETS No. 106).

In this regard, the CDCJ notes that Conventions ETS No. 19 and ETS No. 93 deal with a broad spectrum of issues related to residence of non-nationals after they have been granted entry to the territory of the contracting State concerned (such as access to employment, right to exercise a liberal profession, family reunion etc.). As to the Convention ETS No. 106, it proposes to the contracting States a set of model inter-state agreements and agreements between the local authorities from different contracting States on various issues of economic and social co-operation without explicitly touching upon the issue of movement of persons in border areas.

Accordingly, the CDCJ considers that the 1957 European Agreement on Regulations Governing the Movement of Persons between Member States of the Council of Europe (ETS No. 25) is the most relevant Council of Europe treaty from the point of view of entry and short term stay. This treaty aims at exempting the nationals of member states from short-stay visa requirements when travelling to other member states. The applicability of this Agreement has been extensively discussed in the above-mentioned CDCJ Report on “Good Practices”. On the basis of this Report, the CDCJ acknowledges that the Agreement is outdated and that its revision is not feasible in the present circumstances.

As to other possible Council of Europe activities in the area of movement of persons, the CDCJ notes that the Report on “Good Practices”, prepared by the Working party CDCJ-GT-MOV in consultation with all the CDCJ delegations in 2004, provides a comprehensive comparative overview of various multilateral, bilateral and unilateral measures of the member States facilitating the movement of persons. According to the Committee of Ministers' decision adopted at the 920th meeting of the Ministers' Deputies on 23 March 2005, this Report has been published on the Internet and will be transmitted for information to the European Union institutions. In addition, the member States have been invited to disseminate it to their competent authorities. At the same time, the Committee of Ministers noted that the idea of regularly updating the Report, which was one of the follow-up options proposed by the CDCJ, had received widespread support among the member States. However, it decided to return to the question of the follow-up activity after the Third Summit of Heads of State and Government of the Council of Europe on 16-17 May 2005. Should the Committee of Ministers so decide, the CDCJ is ready to continue the work in the area of movement of persons.

      ii. establish principles for the standardisation of travel documents of Council of Europe member states, so as to provide safeguards against forgery and fraudulent use, and thus facilitate the liberalisation of visa regimes and immigration policies;

The CDCJ notes that standardisation of travel documents is already undertaken by other international organisations and the European Union. In this situation, the CDCJ considers that the Council of Europe should rather contribute to the development of identity documents at the European level in its traditional areas of competence. These areas are, firstly, personal data protection concerning “smart cards” and in the collection of biometric data that are being progressively introduced in identity documents, and, secondly, issues concerning identity documents that are relevant for the fight against terrorism.

Concerning personal data protection, the CDCJ wishes to draw attention to the Guiding principles for the Protection of Personal Data with regard to smart cards , which it adopted at its 79th plenary meeting in 2004. This text deals with the principles of data protection which should be taken into account when using smart cards, including fair and legal processing of the data, security of the system and data of a sensitive nature.

As to biometric data, a progress report on the application of the principles of the data protection Convention to the collection and processing of biometric data was adopted by the T-PD in February 2005. The International Civil Aviation Organisation (ICAO) and the OECD have recently set up a working group to establish guidelines for the inclusion of biometric data in travel documents. The T-PD will be participating in this work as an observer.

As to the work underway concerning identity documents and terrorism, the CDCJ draws attention to the Recommendation Rec(2005)7 on identity and travel documents and the fight against terrorism, prepared by the Group of Specialists on Identity Documents and terrorism (TER-S-IT) and adopted by the Committee of Ministers on 30 March 2005. It contains provisions concerning the security of identity and travel documents, proof of identity, birth certificates and international co-operation in this context. It underlines, in particular, the usefulness of standardisation of the contents and format of travel documents according to the standards adopted by the ICAO, as well as the usefulness of a common format and minimum security standards concerning passports that have been adopted by the European Union.

      iii. begin efforts to harmonise, under the auspices of the Council of Europe, and in accordance with the guidelines laid down in Parliamentary Assembly Recommendation 1624 (2003) on a common policy on migration and asylum, Council of Europe member states' legislation and practice relating to this subject. 

The CDCJ notes that Recommendation 1648 was adopted by the Parliamentary Assembly prior to the adoption of the reply of the Committee of Ministers with respect to Parliamentary Assembly Recommendation 1624 (2003) on a common policy on migration and asylum. In this reply, adopted at the 888th meeting of the Ministers' Deputies on 16 June 2004, the Committee of Ministers considered the drawing up of a model for a Council of Europe common policy on migration and asylum to be inadvisable, in view of the very specific situation of refugees.

In its reply the Committee of Ministers stated that:

…The core rights and procedural safeguards for both asylum seekers and migrants are already reflected in the European Convention on Human Rights and its relevant case law. Many guarantees mentioned in the Recommendation have already been thoroughly dealt with and will continue to be assured by the European Court of Human Rights.

4. There is a distinction between refugees and migrants. Having regard to the very specific situation of the refugees, a common model as proposed might lower the standards for their protection. In order to provide them with better protection, the Committee of Ministers has adopted two European agreements and a number of recommendations that provide member states with common standards in the field of refugee protection. The Ad Hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR) has taken the initiative to reinforce the follow up to these recommendations. The European Commission against Racism and Intolerance (ECRI) continues to follow up the fair procedures mentioned in paragraph 9 of the Recommendation in its country-specific reports. The Council of Europe Commissioner for Human Rights also pays much attention to these problems.

5. Asylum policy is a humanitarian policy and should not be confused with an orderly migration management.

6. However, the harmonisation of the policies in the field of migration will contribute to the achievement of greater unity among member states of the Council of Europe. It should also be recalled that the Council of Europe recommendations in the field of migration are traditionally taken into consideration by the European Commission in its process of drafting directives on similar subjects. The Migration Management Strategy adopted by the European Committee on Migration (CDMG) provides a framework for a coordinated action, from a human rights and human dignity perspective. The recently established Political Platform constitutes a solid basis for harmonising national approaches to migration and the development of synergies with the EU policies under the Common Asylum and Migration Policy.”

Appendix VII

Draft Specific Terms of Reference of the Committee of Experts on Nationality (CJ-NA) for 2006-2007

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 European Conferences on Nationality in 1999, 2001 and 2004, the Committee is instructed, under the authority of the CDCJ:

a. Nationality issues in connection with the fight against terrorism

- as a priority to draw up a report to be submitted to the CDCJ at the beginning of 2006 for the consideration of preparing one or more international instruments on nationality issues in connection with the fight against terrorism. The report should examine the links between matters regarding nationality and problems connected with anti-terrorism activities, in particular the problems related to the establishment of the identity of the individual, such as in connection with the naturalisation procedure. The work should take into account the 1999 report on misuse of nationality laws which proposes the further development of co-operation between states in this field by, inter alia, exchanging information on misuse of multiple nationality within the framework of Article 24 of the European Convention on Nationality, as well as the possible opinion of the Committee of Experts on Terrorism (CODEXTER) on relevant matters.

b. Conditions for the acquisition and loss of nationality of the child

- with a view to improving the situation of children in Europe to draw up a feasibility study on the necessity of an additional instrument on conditions for the acquisition and loss of nationality of the child to complement the European Convention on Nationality, in the light of an examination of the problems in this field. This work will be based on the 2002 report on conditions for the acquisition and loss of nationality and the conclusions and proposals for follow-up to the 3rd European Conference on Nationality held in 2004 on the theme “Nationality and the Child”. The feasibility study is to be submitted to the CDCJ at the end of 2006.

c. Preparation of a 4th European Conference on Nationality

- to prepare, in connection with the work under a. above, a 4th European Conference on Nationality in 2007 on the theme “Nationality, human rights and the fight against terrorism”. The Conference will deal, inter alia, with such issues as the right to a nationality as a human right, loss of nationality, naturalisation, balance between the legitimate interests of the state and those of the individual, and multiple nationality.

d. 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, the Protocol on the avoidance of statelessness in relation to state succession and other relevant international instruments in this field in their internal legislation and practice, and to prepare for accession to the European Convention on Nationality. This work will be complemented by activities carried out within the framework of the programme of co-operation with states at the bilateral level. The CJ-NA will also follow up the steps taken by states to implement the European Convention on Nationality and will monitor the process of making and withdrawing reservations in accordance with Article 29 of the Convention.

e. Provision of expertise within its field of competence

- to carry out any other activity with which the CDCJ might entrust it in the execution of its own terms of reference or in implementing the priorities identified by the Committee of Ministers.

5. Membership of the Committee:

a. The governments of all member states are entitled to appoint members with the following desirable qualifications: 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 to meetings of the Committee without the right to vote or defrayal of expenses.

c. The following observers with the Council of Europe may send representatives to meetings of the Committee without the right to vote or defrayal of expenses:

      - Canada;
      - Holy See;
      - Japan;
      - Mexico;
      - United States of America.

d. The following observers with the Committee may send representatives to meetings of the Committee without the right to vote or defrayal of expenses*:

      - Belarus*;
      - Kyrgyzstan*;

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

6. Working structures and methods:

The CJ-NA may set up working parties and use consultants.

7. Duration:

These terms of reference shall be reviewed before 31 December 2007.

Subject to specific rules applicable to states marked *.

Appendix VIII

Draft Specific Terms of Reference of the Project Group on Administrative Law (CJ-DA) for 2005-2006

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), taking into account its revised specific terms of reference for 2005 and having regard to Parliamentary Assembly Recommendation 1615 (2003) on the institution of ombudsman, the CJ-DA is instructed:

a. with a view to promoting an area of common legal standards throughout Europe, to prepare a recommendation, accompanied with a consolidated model code of good administration, in order to strengthen the legal framework of good administration as an essential element of good governance and improve the functioning of public administration and relations between the administration and individuals;

b. to carry out any other activity with which the CDCJ might entrust it in execution of its own terms of reference or in implementing the priorities identified by the Committee of Ministers.

5. Membership of the Committee:

a. 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.

b. The Commissioner for Human Rights, the European Commission for Democracy through Law (Venice Commission), the Steering Committee for Human Rights (CDDH) and the Congress of Local and Regional Authorities of the Council of Europe may send one representative to meetings of the Group.

c. The European Commission and the General Secretariat of the Council of the European Union may send one representative to the meetings of the Group without the right to vote or defrayal of expenses.

d. The following observers with the Council of Europe may send representatives to meetings of the Group without the right to vote or defrayal of expenses:

      - Canada;
      - HolySee;
      - Japan;
      - Mexico;
      - United States of America.

e. The following observers with the Group may send representatives to meetings of the Group, without the right to vote or defrayal of expenses:

      - OECD,
      - UN and its specialised organs;
      - the International Commission on Civil Status (CIEC);
      - the European Public Law Centre;
      - the European Federation of Administrative Judges.

6. Working structures and methods:

The CJ-DA may set up working parties, use consultants and organise hearings and consultations.

7. Duration:

These terms of reference shall be reviewed before 31 December 2006.

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 up in Resolution Res(2001)6 on access to Council of Europe documents.

2 As approved by the CDCJ Bureau at its 71st meeting on 22-23 November 2004 after a written consultation procedure with all delegations.

3 It should be noted that CDPC has also been invited to comment on the present Recommendation according to the Committee of Ministers' Decision of 30 June 2004.

4 The original text of the Parliamentary Assembly's Recommendation is reproduced in the present document in bold italics.

5 Annex 2 to the Common Consular Instructions on Visas for the Diplomatic Missions and Consular Posts, Official Journal of 16.12.2002 C 313.

6 See, for example, Executive Committee Decision of 22 December 1994 introducing and applying the Schengen arrangements in airports and aerodromes, Official Journal L 239, 22/09/2000.

7 Article 18 of the Convention implementing the Schengen Agreement of 14 June 1985 concerning “Long-stay visas” stipulates that “Visas for stays exceeding three months shall be national visas issued by one of the Contracting Parties in accordance with its national law”.

8 Proposal for a Council Regulation on the establishment of a regime of local border traffic at the external land borders of the Member States COM (2003) 502 final. This proposal is, however, at present being reconsidered because of the change in the legal basis and procedures for its adoption (end of the transitional period foreseen in Article 67 of the Treaty establishing the European Community) and in the light of the discussions that have already taken place on this proposal within the Council of the European Union.

9 Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders of 19 June 1990.



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