Ministers’ Deputies
CM Documents

CM(2006)60 4 May 20061
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967 Meeting, 14 June 2006
10 Legal questions


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

Abridged report of the 81st meeting (Strasbourg, 22-24 March 2006)

Item to be prepared by the GR-J of 1.06.2006
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BRIEF FOREWORD

1. The European Committee on Legal Co-operation (CDCJ) met in Strasbourg from 22-24 March 2006. The agenda appears in Appendix 1. The list of participants can be obtained to the Directorate of Legal Affairs.

ITEMS SUBMITTED TO THE COMMITTEE OF MINISTERS FOR DECISION

2. The CDCJ invited the Committee of Ministers:

a. to adopt its new Draft Specific Terms of Reference, revised in accordance with Resolution (2005) 47, and the CDCJ’s recently acquired responsibilities for intergovernmental work in the field of refugees and asylum seekers (see item 5.9 of the agenda and Appendix 3 to this document);

b. to take note of the Opinion on Parliamentary Assembly Recommendation 1729 (2005) on “Activities of the United Nations High Commissioner for Refugees (UNHCR)”, as adopted by the CDCJ (see item 4.2 of the agenda and Appendix 4 to this document);

c. to take note of the Opinion on Parliamentary Assembly Recommendation 1732 (2006) on the integration of immigrant women in Europe (see item 4.3 of the agenda and Appendix 5 to this document);

d. to take note of the Reply to the Committee of Ministers concerning its contribution to the implementation of the Action Plan of the 3rd Summit of the Heads of State and Government of the Council of Europe (Warsaw, 16-17 May 2005) and, in particular, its future priorities, prepared by the CDCJ in accordance with the message from the Committee of Ministers (CM(2005)145 rev) to all committees involved in intergovernmental co-operation (see items 3 and 5.11 of the agenda and Appendix 2 to this document);

e. to take note of its reply, requested by the Committee of Ministers, to the Progress Report of the CODEXTER, underlining the activities the CDCJ is willing to carry out in the context of supporting the fight against terrorism (see Item 5.10 of the agenda and Appendix 6 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 intention to update the Committee of Ministers Recommendation (94) 12 on the independence, efficiency and role of judges, in the light of new ideas and practices concerning judicial services and their functioning in Europe, which have emerged since the recommendation was adopted. This activity is a follow up to the Action Plan, prepared and adopted by the European Commission for the Efficiency of Justice (CEPEJ) on the basis of the examination of the Opinions of the Consultative Council of European Judges (CCJE) and has been identified by the CDCJ as a priority (see item 5.1 of the agenda and Appendix 2 to this document);

b. its decision to entrust the Bureau of the CDCJ with the examination of the new draft terms of reference of the Project Group on Administrative Law (CJ-DA) for 2007 at its second meeting in 2006, with a view to approving them and forwarding them to the Committee of Ministers for adoption, as the current terms of reference for the CJ-DA will end in December 2006 (see item 5.2 of the agenda and Appendix 2 to this document);

c. its decision to entrust the Bureau of the CDCJ with the examination of the new draft terms of reference of the Committee of Experts on Family Law (CJ-FA) for 2007 at its second meeting in 2006 with a view to approving them and forwarding them to the Committee of Ministers for adoption, as the current terms of reference for the CJ-FA will end in December 2006. The work in 2006 consists of examining the adequacy of instruments in the field of family law with respect to present and future needs, as well as their implementation by the Council of Europe. This work should be carried out by an independent expert or institution and then presented to the CJ-FA for examination. The work should also include an evaluation of the case law of the European Court of Human Rights. The CJ-FA should communicate specific proposals to the CDCJ at its next Plenary meeting in 2007 as to if and how a monitoring procedure could be put in place for the instruments under examination (see item 5.3 of the agenda and Appendix 2 to this document);

d. its intention to organise a seminar on medical liability in 2008, in co-operation with the Steering Committee on Bioethics (CDBI) and the European Health Committee (CDSP) and its examination of possible topics (see item 5.8 of the agenda and Appendix 2 to this document);

e. its decision to engage an expert to prepare a survey of systems and practice by insurance schemes covering damages relating to victims of terrorism and to present its conclusions as ongoing work in this field at the 27th Conference of European Ministers of Justice in Yerevan (Armenia) on 12-13 October 2006 (see item 5.10 on the agenda and Appendix 2 to this document);

f. its intention to set up a restricted committee of experts on denial of residence to foreign terrorists for 2007, which could also deal with the eventual follow-up to the feasibility study on nationality questions in the context of terrorism (see items 5.10 and 5.4 on the agenda and Appendix 2 to this document);

g. that little progress has been made in new signatures and ratifications of the Convention on Information and Legal Co-operation concerning "Information Society Services" (ETS 180) (see item 8 of the agenda).

4. The CDCJ considered:

a. possible follow up to the Report on access to genetic information for questions not related to health and suggested maintaining this topic on its agenda (see item 5.7 of the agenda);

b. the preparations for the 27th Conference of European Ministers of Justice, which will take place on 12-13 October 2006 in Yerevan (Armenia) and took note of the views of its delegations concerning the notion of vulnerable victims and identified sub-topics (see item 7.1 of the agenda);

c. the preparation in the field of nationality of three feasibility studies dealing with: promoting acquisition of citizenship as a mean to reduce statelessness, nationality issues in the context of terrorism and nationality of the child, and supported the proposal of the Secretariat concerning the preparation of these three separate feasibility studies by independent experts (see item 5.4 of the agenda and Appendix 2 to this document).

5. The CDCJ took note of:

a. the adoption by its Bureau, after written consultation procedure with national delegations, of the Opinion on Parliamentary Assembly Recommendation 1723 (2005) on Forced marriages and child marriages, at its last meeting on 9-10 February 2006 (see item 4.1 of the agenda);

b. the date of the next meeting of the Working Group on Adoption of the Committee of Experts on Family Law (CJ-FA-GT1), planned on 5-7 April 2006 and welcomed that this group will now complete the drafting of the new European Convention on Adoption of Children (see item 5.3.1 of the agenda);

c. the adoption by the Committee of Ministers on 11 January 2006 of the terms of reference of the Group of Specialists on Seeking Legal Solutions to Debt Problems (CJ-S-DEBT) and the progress made in the setting up of the CJ-S-DEBT (see item 5.5 of the agenda) ;

d. the adoption by the Committee of Ministers on 14 December 2005 of the terms of reference of the Group of Specialists on the Legal Status of Non-Governmental Organisations (CJ-S-ONG) and the progress made in the setting up of the CJ-S-ONG (see item 5.6 of the agenda);

e. the information concerning the work of the Committee of Experts on Terrorism (CODEXTER), the Consultative Council of European Judges (CCJE), the European Commission for the Efficiency of Justice (CEPEJ), the Lisbon Network, the Convention Committee on the Custody Convention (T-CC), the Standing Committee of the European Convention on the Exercise of Children’s Rights (T-ED), the Programme “Building a Europe for and with children” and the Consultative Committee of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (T-PD) ( see item 6 of the agenda);

f. the invitation of the Spanish Ministry of Justice to host the 28th Conference of European Ministers of Justice in 2008 in Lanzarote. The CDCJ instructed the Secretariat to keep it and its Bureau informed concerning all stages of preparation of this Conference (see item 7.2 on the agenda).

6. The CDCJ re-elected Mr. Sjaak Jansen (Netherlands) as Chair and Mr. Pekka Nurmi (Finland) as Vice-chair. It also re-elected Mr. Petar Rashkov (Bulgaria) as a member of its Bureau for two years (see item 10 of the agenda).

7. The CDCJ decided to entrust its Bureau with making a final decision concerning the dates of its next Plenary meeting in 2007, keeping in mind the advice of the Secretariat to the CDCJ to hold this meeting early in 2007 (see item 11 of the agenda).

Appendix 1

AGENDA

1. OPENING OF THE MEETING

2. ADOPTION OF THE AGENDA

3. FOLLOW UP TO THE ACTION PLAN OF THE WARSAW SUMMIT

I. TEXTS

4. OPINIONS

    4.1. Opinion of the Bureau of the CDCJ on Parliamentary Assembly Recommendation 1723 (2005) on Forced marriages and child marriages

    4.2. Draft Opinion on Parliamentary Assembly Recommendation1729 (2005) on Activities of the United Nations High Commissioner for Refugees (UNHCR)

    4.3. Draft Opinion on Parliamentary Assembly Recommendation 1732 (2006) on Integration of immigrant women in Europe

II. ACTIVITIES CONCERNING THE CDCJ

5. FUTURE PRIORITIES AND WORK OF THE CDCJ

    5.1 Action Plan for follow-up to Opinions of the Consultative Council of European Judges (CCJE) presented to the CDCJ

    5.2 Future Work of the Project Group on Administrative Law (CJ-DA)

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

      5.3.1 Working Group on Adoption (CJ-FA-GT1)

      5.3.2 Application and evaluation of instruments in the field of family law

    5.4 Activities in the field of nationality

    5.5 Group of Specialists on seeking Legal Solutions to Debt Problems (CJ-S-DEBT)

    5.6 Group of Specialists on the Legal Status of Non-governmental organisations (CJ-S-ONG)

    5.7 Use of genetic information not related to health

    5.8 Medical liability

    5.9 Refugees and Asylum-seekers – new responsibility of the CDCJ

    5.10 Suggested priority activities in the fight against terrorism

    5.11 Revised Mandate of the CDCJ and future priorities

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

    6.1 Work in the field of justice

      6.1.1. European Commission for the Efficiency of Justice (CEPEJ)

      6.1.2 Consultative Council of European Judges (CCJE)

      6.1.3. Lisbon Network

    6.2 Work of the Council of Europe related to Children

      6.2.1 Standing Committee of the European Convention on the Exercise of Children’s Rights (T-ED)

      6.2.2 Convention Committee on the Custody Convention (T-CC)

      6.2.3 Programme “Building a Europe for and with children”

    6.3 Work of the Council of Europe in the fight against terrorism (CODEXTER)

    6.4 Consultative Committee on the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (T-PD)

7. CONFERENCES AND COLLOQUIES IN THE LEGAL FIELD

    7.1 Information concerning the preparations for the 27th Conference of European Ministers of Justice, Armenia, Autumn 2006

    7.2 Information concerning the organisation of the 28th Conference of Ministers of Justice, Spain, 2008

8. COUNCIL OF EUROPE LEGAL INSTRUMENTS

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 2

Reply to the Committee of Ministers
as regards the contribution of the European Committee on Legal Co-operation (CDCJ)
in the implementation of the Warsaw Action Plan and its future priorities

INTRODUCTION

1. A well-functioning and efficient system of justice is fundamental to any democracy, and civil justice is a key component. Increased trust in public institutions and judicial systems helps citizens to have confidence in their daily lives including everyday transactions. It also underpins prosperity by promoting economic activity including inward investment. 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.

2. Standard-setting covering public and private law and the functioning of judicial systems has, particularly since 1989, made a uniquely significant contribution to the development of and adherence to the principles of democracy and the rule of law in the enlarged Council of Europe. Legal instruments in the field of legal co-operation have, among other things, helped improve judicial independence, reduced delays in judicial systems, and promoted fairness and efficiency across the board. Other examples include the work in the family law field which made the interests of children the paramount concern everywhere in Europe. Work in the field of nationality has shown itself able to react appropriately to changing needs, and work in the field of data protection set a pioneering course that has been followed elsewhere.

3. The high standards embodied in the Council of Europe's Acquis in the area of legal co-operation should not lead to complacency. Problems continue to exist in all parts of Europe and work remains to be done. Moreover, new and changing needs arising from rapid societal changes should be addressed through the elaboration and implementation of new legal instruments and, where appropriate, adjustment of existing instruments, or by other means.

4. The work of the European Committee on Legal Co-operation (CDCJ) has been and remains at the core of the Council of Europe's work in standard-setting.

5. In this document, the CDCJ presents the activities that are underway or will be implemented in 2006 and which contribute to the implementation of the Warsaw Action Plan adopted by the Heads of State and Government of the Council of Europe. It also lists the priorities it has identified for its future work.

6. The CDCJ has used the road map provided by the Committee of Ministers in document CM (2005) 145 rev. as the basis for its presentation. It seizes this occasion to outline the relevance of its work in certain areas which have not been specifically identified for the CDCJ in the road map.

Key priorities

7. For its work in 2006 the CDCJ has identified the following equally important key priorities, details of which are set out in the annex of this Reply.

8. Standard-setting in public and private law

    · Promoting good governance, including the role of NGOs, and code of good administration
    · Updating family law to accommodate changes in society, including the European Convention on the Adoption of Children
    · Developing nationality laws
    · Seeking legal solutions to debt problems

9. Assisting member states to develop their legal systems by setting standards in the field of justice

    · Revision of the Recommendation R(94) 12 on independence, efficiency and role of judges
    · Making optimal use of the Opinions of the Consultative Council of European Judges

10. Combating terrorism and dealing with its consequences

    · Issues concerning denial of residence to foreign terrorists
    · Survey of insurance schemes for victims of terrorism
    · Issues relating to missing persons following, in particular, terrorist attacks and natural disasters

11. Refugees and asylum seekers

    · Legal status of foreign unaccompanied minors
    · Accelerated procedures in the process of obtaining asylum

Items of the Action Plan

PART I - IMPLEMENTATION OF THE WARSAW ACTION PLAN BY THE CDCJ

CHAPTER I - ITEM 3 - PARAGRAPH 9

We will make full use of the Council of Europe’s standard-setting potential and promote implementation and further development of the Organisation’s legal instruments and mechanisms of legal co-operation, keeping in mind the conclusions of the 26th Conference of European Ministers of Justice (Helsinki, 7-8 April 2005).

Updating the Committee of Ministers Recommendation R(94) 12 on independence, impartiality and role of judges in the light of new ideas and practices concerning judicial services and their functioning in Europe which have emerged since the Recommendation was adopted.

Elaborating a new Convention on Adoption in 2006, as various provisions of the 1969 Convention on Adoption are now out of date and in conflict with the case-law of the European Court of Human Rights as well as modern values.

Responding to changes in society in the family law field, it is timely to review the continued adequacy and necessity of existing instruments, and to update these where necessary.

Proposing solutions to issues relating to legal status of foreign unaccompanied minors and assisting member states in introducing accelerated procedures in the process of obtaining asylum.

Assisting member states in bringing their laws on matrimonial property regimes and inheritance in keeping with actual family patterns of today’s society. A report on these issues initiated some time ago should be completed.

Improving and clarifying issues of succession and other issues relating to missing persons following, in particular, terrorist attacks and natural disasters.

Seeking legal solutions to increasingly widespread debt problems throughout Europe, according to the Resolution No. 1 of the 26th Conference of European Ministers of Justice (Helsinki, 7-8 April 2005).

CHAPTER I - ITEM 3 - PARAGRAPH 5

Enhance the participation of NGOs in Council of Europe activities as an essential element of civil society's contribution to the transparency and accountability of democratic government.

Promoting standards for the proper functioning and involvement of NGOs in public life.

CHAPTER I - ITEM 3 - PARAGRAPH 10

We decide to develop the evaluation and assistance functions of the European Commission for the Efficiency of Justice (CEPEJ) and to make proper use of the opinions given by the Consultative Council of European Judges (CCJE) in order to help member states to deliver justice fairly and rapidly and to develop alternative means for the settlement of disputes.

Making optimal use of the Opinions of the Consultative Council of European Judges by promoting their widespread dissemination and implementation by the member states.

Examining the possibility of developing alternative means for the settlement of disputes relating to medical liability.

CHAPTER I - ITEM 3 – PARAGRAPH 11

Nationality law in all its aspects, including the promotion of acquisition of citizenship, as well as family law, are focus points of the Council of Europe. The Council, as the suitable international organisation, will continue to develop its action in these fields of law.

Developing rules on the conditions of acquisition of citizenship in order to reduce statelessness and to strengthen the legal position of children with regard to nationality.
For ongoing and future work in the family law field reference is made to Chapter I, Item 3, paragraph 9.

CHAPTER I - ITEM 3

We will strive for our common goal of promoting democracy and good governance of the highest quality, nationally, regionally and locally for all our citizens and pursue our ongoing fight against all forms of totalitarianism.

Strengthening 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 by developing a consolidated model code of good administration.

Ensuring good administration throughout Europe by seeking legal solutions to the protection of victims through administrative law.

CHAPTER I - ITEM 4 – PARAGRAPH 2

We will continue our common efforts to ensure strict compliance with the commitments of member states to the common standards to which they have subscribed. Standard-setting in the field of justice and other relevant areas of law as well as non-discriminatory monitoring processes should continue to be used to help member states address the problems and develop their legal systems. Monitoring must, as necessary, be accompanied by Council of Europe assistance and technical support. In this context, we encourage continued co-operation in the training of judges and law enforcement officials.

Setting standards in the field of justice, private and administrative law to assist member states develop their legal systems.

Keeping the functioning of the instruments in the field of legal co-operation under review.

Reference is also made to Chapter I, Item 3, Paragraph 9.

CHAPTER I - ITEM 4 – PARAGRAPH 4

To this end, the Council of Europe, in co-operation with the European Union, will continue to promote the exchange of good practices as far as free movement of persons is concerned, with a view to further improving contacts and exchanges between Europeans throughout the continent.

Promoting the exchange of good practices as regards freedom of movement through legal co-operation, or as the Committee of Ministers may decide.

CHAPTER II - ITEM 1 – COMBATING TERRORISM

We strongly condemn terrorism, which constitutes a threat and major challenge to our societies. It requires a firm, united response from Europe as an integral part of the worldwide anti-terrorist efforts under the leadership of the United Nations. We welcome the new Council of Europe Convention on the Prevention of Terrorism opened for signature during the Summit and draw attention to other instruments and documents that the Council of Europe has drawn up so far to combat terrorism. We call on all member states to respect human rights and to protect victims when combating this scourge, in accordance with the guidelines drawn up by the Council of Europe in 2002 and 2005 respectively.

We will identify other targeted measures to combat terrorism and ensure close co-operation and coordination of common anti-terrorist efforts with other international organisations, in particular the United Nations.

Examining legal consequences and solutions regarding denial of residence to foreign terrorists.

Obtaining an overview of existing insurance schemes, public and private, to cover terrorism related damages with a view to reflection on a possible recommendation.

Examining nationality issues in the context of terrorism with a view to developing adequate remedies, including analysis of the criteria for naturalisation and revocation of nationality and nationality issues hampering the effective fight against terrorism.

Other activities/topics of concern to the CDCJ

The right to access information regarding one’s origins.

The legal consequences arising out of various forms of partnerships (civil partnerships or other forms of co-habitation, including same sex couples), in particular where they involve children.

The Follow-up to the 27th Conference of European Ministers of Justice “Victims: place, rights and assistance”.

Appendix 3

Draft Specific Terms of reference of the European Committee on Legal Co-operation (CDCJ)

1. Name of committee: European Committee on Legal Co-operation (CDCJ)

2. Type of committee: Steering Committee

3. Source of terms of reference: Committee of Ministers

4. Terms of reference:

Having regard to:

Action Plan of the Third Summit of the Heads of State and Government of the Council of Europe, in particular items 3 and 4 from its Chapter I,

Resolutions of the Conferences of the European Ministers of Justice in its field of competence,

Decisions of the Committee of Ministers of the Council of Europe in the field of legal co-operation,

Council of Europe Conventions, Resolutions and Recommendations in its field of competence,

Within the framework of implementation of the annual Programme of Activities under programmes “Functioning of Justice”, “Public Law” and “Private Law and Protection of Children”, the CDCJ has the task of:

i. Defining the policy of legal intergovernmental co-operation and fixing priorities in the fields of public and private law;

ii. Promoting law reform and co-operation in:

- administrative law;
- data protection;
- family law;
- information technology and law;
- justice;
- nationality;
- refugees and asylum seekers;

iii. The CDCJ shall carry out these tasks through:

a) the supervision and organisation of the work of its committees, groups of experts, colloquies and conferences;

b) the adoption of draft Conventions, Agreements, Protocols or Recommendations;

c) the monitoring of the functioning and implementation of the international instruments coming within its field of competence and assistance to states for specific problems and co-operation with the appropriate Convention Committees;

d) the preparation, jointly with the European Committee on crime problems (CDPC), of Conferences of European Ministers of Justice;

e) the adoption, for the Committee of Ministers, of opinions on legal matters coming within its competence;

f) the adoption, for the Committee of Ministers, of proposals for the programme of activities of the CDCJ;

g) the co-operation with other Council of Europe bodies in particular with the European Committee on Crime Problems (CDPC), the Consultative Council of European Judges (CCJE), the European Commission for the Efficiency of Justice (CEPEJ), the Committee of Experts on Terrorism (CODEXTER), the Steering Committee on Bioethics (CDBI) and the European Health Committee (CDSP);

h) the assistance to states to carry out appropriate reforms:

- with regard to their domestic laws;

- to implement international instruments, including, where appropriate, reforms to ensure compliance with the provisions of the European Convention on Human Rights;

- to take account, where appropriate, of "areas of concern" relating to the compliance with commitments accepted by member states of the Council of Europe, proposals by the Parliamentary Assembly, proposals by the European Ministers of Justice, proposals by the Venice Commission, case-law of the European Court of Human Rights;

i) the obtaining of information by means of:

- publications (in particular publications which present, in a consolidated form, the European achievements in each field of activity),

- conferences and colloquies,

- networks of specialists on legal matters coming within the competence of the CDCJ;

j) the development of co-operation between member states by means of:

- networks of specialists,
- specific bodies, such as central authorities, set up under conventions.

5. Composition of the Committee:

5.A Members

    The governments of member states are entitled to appoint members of the highest possible rank in the legal field with the following desirable qualifications: senior national officials; senior officials in the Ministry of Justice or any other Ministry and/or specialists in the field.

    The Council of Europe's budget bears travelling and subsistence expenses of one representative from each member state (two in the case of the state whose representative has been elected Chair).

5.B Participants

i. The CDCJ may request one of its subordinate committees to be represented at one of its meetings.

ii. The Parliamentary Assembly may send up to 3 representatives to meetings of the Committee, without the right to vote and at the charge of its administrative budget.

iii. The Conference of INGOs of the Council of Europe may send representatives to meetings of the Committee, without the right to vote and at the charge of the sending body.

5.C Other participants

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

ii. The states with observer status with the Council of Europe (Canada, Holy See, Japan, Mexico, United States of America) may send representatives to meetings of the Committee, without the right to vote or defrayal of expenses.

iii. The following intergovernmental organisations may send representatives to meetings of the Committee, without the right to vote or defrayal of expenses:

      - the United Nations International Law Commission (ILC),
      - the United Nations Commission on International Trade Law (UNCITRAL),
      - the International Institute for the Unification of Private Law (UNIDROIT),
      - the Hague Conference on Private International Law (HCCH),
      - the Organisation for Economic Co-operation and Development (OECD),
      - the Office for Democratic Institutions and Human Rights (OSCE-ODIHR),
      - the Asian-African Legal Consultative Organization (AALCO),
      - the International Commission on Civil Status (CIEC),
      - the United Nations High Commissioner for Refugees (UNHCR).

5.D Observers

The following non-member state and non-governmental organisation may send representatives to the meetings of the Committee, without the right to vote or defrayal of expenses:

- Belarus2,

- Council of Bars and Law Societies of Europe (CCBE) (until the consideration of renewal of its observer status to the CDCJ by 31 December 2007).

6. Working Methods and Structures

As from February 1992, the Bureau of the Committee comprises 6 members.

To obtain and share information the CDCJ may engage consultants, scientific experts and organise hearings, seminars, conferences and colloquies.

7. Duration

The present terms of reference will expire on 31 December 2009.

Appendix 4

Opinion on Parliamentary Assembly Recommendation 1729 (2005)
on Activities of the United Nations High Commissioner for Refugees (UNHCR)

1. Following the adoption by the Parliamentary Assembly of Recommendation 1729 (2005) on Activities of the Office of the United Nations High Commissioner for Refugees (UNHCR), the Committee of Ministers decided to communicate it to the European Committee on Legal Co-operation (CDCJ), for information and possible comments by 31 March 2006.

2. The CDCJ took note of the Recommendation of the Parliamentary Assembly and, in relation to it, wishes to make the following comments.

3. The CDCJ would first like to pay tribute to the UNHCR for assisting Council of Europe member States in providing adequate protection to those victims of persecution and violence who were forced to leave their place of origin. It is well aware that the UNHCR’s task is made all the more difficult in today’s climate of perceived threats related notably to terrorism, transnational crime and migration flows. The CDCJ supports the efforts of the UNHCR to fulfill its mandate in this difficult environment and to develop new tools and agreements to enhance the refugee protection regime.

4. In this respect, the CDCJ believes that UNHCR’s “Convention Plus” process (para. 3.1) constitutes a promising tool to improve refugee protection worldwide and to facilitate the resolution of refugee problems through multilateral special agreements. It encourages member states, when appropriate, to take part in the process with a view to address current and future refugee challenges more effectively.

5. With regard to para. 3.2 of the Recommendation that calls upon the Committee of Ministers to “further develop co-operation with the UNHCR on the legal interpretation of the status of refugees and asylum seekers”, the CDCJ notes that the UNHCR has always been closely associated with the Council of Europe’s standard setting work in this field as it enjoyed observer status, and actively participated in all the meetings of the Ad Hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR). The CDCJ also notes that - following the suspension of the activities of CAHAR - its own terms of reference are to be amended with a view to enabling it, at the request of the Committee of Ministers, to make proposals aimed at providing legal solutions, to problems which member states face in the field of asylum, refugees and stateless persons. In this light, the CDCJ stresses that it would welcome the UNHCR’s participation in any standard setting work which it might be invited to undertake.

6. The CDCJ also notes with satisfaction that in the framework of the Council of Europe’s assistance programmes, the UNHCR and the Council of Europe are conducting national workshops on those European standards that are relevant for the protection of refugees, displaced persons and asylum-seekers. The CDCJ is of the opinion that the Council of Europe should remain in close co-operation with the UNHCR in the protection of asylum seekers, refugees and stateless persons in Europe.

Appendix 5

Opinion on Parliamentary Assembly Recommendation 1732 (2006)
on Integration of Migrant Women in Europe

1. Following the adoption by the Parliamentary Assembly of Recommendation 1732 (2006) Integration of Migrant Women in Europe, the Committee of Ministers decided to communicate it to the European Committee on Legal Co-operation (CDCJ), for information and possible comments by 31 March 2006. The Plenary of the CDCJ examined the Recommendation and decided to submit to the Committee of Ministers its comments relating to those provisions, which in its view are of concern to the CDCJ.

2. The CDCJ draws the attention of the Committee of Ministers to the fact that the topic of the 27th Conference of the Ministers of Justice, to be organised in Yerevan on 12-13 October 2006, is “Victims: place, rights and assistance”. At this Conference the Ministers shall be invited to examine the question of victims of violence – including that of women – taking into account both the penal and civil aspects of this question.

3. Paragraph 5.2.3. concerns the identification and non-application, renegotiation, rejection or denunciation of those international and bilateral legal instruments that contradict the provisions of the European Convention on Human Rights or its Protocol No. 7, and which violate the fundamental principles of human rights, in particular with regard to personal status. The CDCJ considers that responsibility in this matter lays primarily within member states. Furthermore, it is the responsibility of the European Court of Human Rights to evaluate whether there has been a violation of the Convention.

4. Paragraph 5.2.4. concerns the recognition and enforcement of judgments in matters relating to marriage, divorce and custody. The CDCJ underlined the importance of this subject and noted that the Council of Europe has already elaborated several legal instruments relevant to this question, namely the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children (ETS 105), as well as Recommendations No. R (95) 6 and R (99) 7 on the Application of the ETS 105. The ETS 105 has been widely ratified and at present is in force for 34 Council of Europe member states.

5. As regards recognition and enforcement of administrative and judicial decisions concerning marriage and divorce, the Committee of Experts on Family Law (CJ-FA) is planning to carry out an activity with a view to establishing whether the existing Council of Europe legal instruments in the field of family law adequately correspond to the current needs of member states and today’s society. This activity might reveal, inter alia, if there is any specific need to address this area in particular.

Appendix 6

Reply to the Committee of Ministers
concerning the Progress Report on future priority areas for the work of the Council of Europe in the fight against terrorism, adopted by the CODEXTER

1. At its 953rd meeting (18 January 2006) the Committee of Ministers decided to transmit to the European Committee on Legal Co-operation (CDCJ) the Progress report on future priority areas for the work of the Council of Europe in the fight against terrorism, which was prepared and adopted by the Committee of Experts on Terrorism (CODEXTER), asking the CDCJ to take this report into account in its work and to report back.

2. At its 75th meeting (9-10 February 2006) the Bureau of the CDCJ examined it and made suggestions to the CDCJ on action to take and proposals to make to the Committee of Ministers in respect of the priority areas identified by the CODEXTER. At its 81st Plenary meeting (22-24 March 2006) the CDCJ examined these proposals, which can be found in the meeting report of the Bureau, and decided to present its views to the Committee of Ministers as requested.

3. In the past the CDCJ has actively been supporting the fight against terrorism, in particular by preparing Recommendation Rec (2005) 7 concerning identity and travel documents and the fight against terrorism.

4. The report of the CODEXTER proposes two activities in which, in the view of this Committee, the CDCJ should be involved and/or consulted.

5. The first suggestions brought to the attention of the CDCJ are “insurance schemes to cover terrorism related damages, by means of a discussion within the CDCJ and a possible study in the form of a survey of systems and practice by public or private insurance schemes with a view to reflection on possible recommendations of a general nature”. The issue at stake here concerns the operation of insurance schemes when there is a terrorist attack and where there are victims. Certain insurance schemes, for example, exclude radioactive incidents or terrorism related damages.

6. The CDCJ considers that the first step would be to engage an independent expert to prepare a survey of systems and practice for its attention on the above mentioned topic. Depending on the conclusions of such a study and taking into account the CDCJ could consider following this up with the drafting of a recommendation on insurance schemes to cover terrorism related damages by a restricted group of experts.

7. The second topic proposed by CODEXTER of concern to the CDCJ is “denial of residence to foreign terrorists”. This topic is multidisciplinary in nature, for instance it raises issues relating to human rights and the fight against terrorism as well as issues related to nationality, status of foreigners, visa regulations and possibly asylum seekers, refugees and expulsion.

8. With regard to the first activity it should be underlined that, at their 27th Conference planned in Yerevan (Armenia) on 12-13 October 2006, the European Ministers of Justice will examine the problems of victims of violence, including issues of liability and responsibility towards victims. Bearing this in mind, the CDCJ expresses its interest in collaborating with the CODEXTER as regards specific issues relating to victims of terrorism, contained in the item 6 of CM(2005)172 Addendum.

9. The CDCJ considers that, due to the sensitive issues at stake, it would need to draw up adequate legal standards by means of a restricted committee of experts.

Note 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 Subject to specific rules applicable to the state marked *.



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