DH-SYSC(2018)01

17/01/2019

STEERING COMMITTEE FOR HUMAN RIGHTS 

(CDDH)

_________

Extract of the terms of reference given by the Committee of Ministers to the CDDH regarding the work of the DH-SYSC during the 2018-2019 biennium

(as adopted by the Committee of Ministers at its 1300^th meeting, 21-23 November 2017)

and relevant extracts of the CDDH meeting reports

Extract of the terms of reference given by the Committee of Ministers to the CDDH regarding the work of the DH-SYSC during the 2018-2019 biennium

(as adopted by the Committee of Ministers at its 1300^th meeting, 21-23 November 2017)

Set up by the Committee of Ministers under Article 17 of the Statute of the Council of Europe and in accordance with Resolution CM/Res(2011)24 on intergovernmental committees and subordinate bodies, their terms of reference and working methods

Type of committee: Subordinate body

Terms of reference valid from: 1 January 2018 until 31 December 2019

Extract of the report of the 87th CDDH meeting

(6-9 June 2017, document CDDH(2017)R87)

 ITEM 3:          SYSTEM OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS
(DH-SYSC)

3.         The Chair of the Committee of experts on the system of the European Convention on Human Rights (DH-SYSC), Ms Isabelle NIEDLISPACHER (Belgium), presented the outcome of its 3^rd meeting (10-12 May 2017, document DH-SYSC(2017)R3). She recalled that, on this occasion, the DH-SYSC gave guidance on:

(i) the on-going work aimed to follow-up to the CDDH report on the longer-term future of the system of the Convention;

(ii) the work on Recommendation CM/Rec(2008)2 on efficient domestic capacity measures taken for rapid execution of judgments of the European Court of Human Rights;

(iii) the other on-going work, especially on Recommendation Rec(2004)4 on the European Convention on Human Rights in university education and professional training; the exchange of information regarding the implementation of the Convention and the execution of judgments of the Court ; State of signatures and ratifications of Protocols Nos. 15 and 16 to the Convention ; the Analysis of national reports on the implementation of the Brussels’ Declaration by the member States.

4.         The CDDH thanked the Chair of the DH-SYSC for this presentation and in particular for the draft terms of reference of the DH-SYSC for the next biennium, prepared by the Committee of experts at its 3^rd meeting in May (see item 7 hereafter).

3.1 Follow-up to the CDDH report on the longer-term future of the system of the Convention

5.         The follow-up work is focused on the process of selection and election of judges of the European Court of Human Rights (Drafting Group I, DH-SYSC I) and on the place of the European Convention on Human Rights within the European and international legal systems (Drafting Group II, DH-SYSC II).

3.1.1 Drafting Group I (DH-SYSC-I)

6.         The Chair of the Drafting Group I on the follow-up to the CDDH Report on the longer-term future of the system of the Convention (DH-SYSC-I), Mr Vít A. SCHORM (Czech Republic), presented the work of the 3^rd meeting of the Group (27 February - 1^st March 2017, document DH-SYSC-I(2017)R3) regarding the process of selection and election of judges of Court and recalled that this work is conducted in close-cooperation with all actors concerned, such as the Court and its Registry, the Secretary General of the Parliamentary Assembly and the Secretary of the Advisory Panel.

7.         It is recalled that the mandate of the Group is as follows:     

-           At their 1252^nd meeting, the Ministers’ Deputiesagreed on the following:“deemed it essential that the judges of the Court enjoy the highest authority in national and international law and to this end instructed the CDDH to examine, while securing the participation of the Court and all other relevant actors concerned, the whole selection and election process, including all factors that might discourage possible candidates from applying, in the light of conclusion § 203 i) and the relevant paragraphs of the report (document CDDH(2015)R84 Addendum I); ”

8.         The Chair of the Drafting Group pointed out that, given the particular importance of this activity for the system of the Convention, it matters that the States who wishes to participate, designate an experienced representative in view of the 4^th and last meeting (18-20 October 2017), during which the draft report on the process of selection and election of judges of European Court of Human Rights (DH-SYSC-I(2017)014) will be finalised with a view to its approval by the DH-SYSC in November and subsequently by the CDDH in December.

9.         The CDDH thanked the Chair of the drafting Group for this presentation and endorsed the guidance given by the DH-SYSC (see document DH-SYSC-I(2017)R3 §§3-14). It noted that a revised version of the draft report will be prepared under the responsibility of the Chair and the Secretariat, in view of the 4^th meeting of the drafting Group. This revised draft report:

(i) will follow the approach endorsed by the CDDH[2]:”examine the possible measures to respond to the identified challenges in an inclusive approach (namely without excluding answers that would require an amendment of the Convention), while focussing on practical solutions to improve the current system; this work should involve a feasibility study”;

(ii) will contain an exhaustive analysis of the four themes identified by the DH-SYSC-I[3] while also considering alternative models;

(iii) will specify which responses would need an amendment of the Convention;

(iv) will present its current Appendixes I and II, such as they appear in the document DH-SYSC-I(2017)014 in two distinct reference documents in order to serve as basis for possible follow-up work;

(v) will take into account the comments made during the DH-SYSC meeting in May and at the present meeting, as well as contributions received from all the actors concerned and new contributions awaited from experts. To this aim, the CDDH invited the members, participants and observers to send any new contribution by the 23 June 2017, 18:00 [email protected]; see the table of deadlines, Error! Reference source not found. hereafter.)

            3.1.2    Drafting Group II (DH-SYSC-II)

10.       The Chair of the Drafting Group II on the follow-up to the CDDH Report on the longer-term future of the European Convention on Human Rights (DH-SYSC-II), Ms Florence MERLOZ (France), presented the results of the 1^st meeting of the Group (30-31 March 2017, document DH-SYSC-II(2017)R1) on the place of the European Convention on Human Rights in the European and international legal order.

11.       It is recalled that the mandate of the Group is as follows:

- At their 1252^nd meeting, the Ministers’ Deputiesagreed on the following: “instructed the CDDH to carry out a detailed analysis of all questions relating to the place of the Convention in the European and international legal order and on the medium-term and longer-term prospects, in the light of the relevant paragraphs of the report (conclusion § 203 iii of document CDDH(2015)R84 Addendum I).”

12.       Firstly, she presented the results of the Seminar on the same subject, which took place in Strasbourg on 29 and 30 March 2017 at the initiative of the Norwegian authorities with the participation of the PluriCourts academic network.

-        This event, which brought together judges of the International Court of Justice and the European Court of Human Rights, Government Agents, leading international legal scholars and practitioners, very usefully preceded the launching of the work of the Drafting Group.

-         The publication of the proceedings will be an important basis for the forthcoming work within the DH-SYSC-II during the next biennium.

-       

13.       The CDDH thanked the Norwegian authorities and especially Mr Morten RUUD (Norway) for his personal commitment in the preparation of the Seminar.

14.  Regarding the work of the DH-SYSC-II, the CDDH endorsed the list of the three priority themes that need to be examined[4] in the light of the CDDH report on the longer-term future of the Convention system, namely:

- the challenge of the interaction between the Convention and other branches of international law, including international customary law;

- the interaction between the Convention and other international human rights instruments to which the Council of Europe member States are parties;

- the interaction between the Convention and the EU legal order, and other regional organisations.

15.       The CDDH also endorsed the working methods foreseen by the drafting Group.[5] It is recalled that, with a view to its next meeting, the Secretariat is instructed to prepare a draft outline to facilitate the analyses that will be carried out.

16.       The CDDH thanked the Chair of the Group for this presentation and noted that it will consecutively address the three above-mentioned themes, while taking care of planning the future themes whereas working on the present one.

17.       Finally, the CDDH invited the experts to express their interest in becoming rapporteurs on one of these three themes, in view of the nomination of the rapporteurs at the 2^nd meeting of the DH-SYSC-II (20-22 September 2017) (deadline for the applications by Friday, 1 September 2017 at 18:00 addressed to [email protected]; see table of deadlines, Error! Reference source not found. hereafter).

3.2 Work on Recommendation CM/Rec(2008)2 on efficient domestic capacity measures taken for rapid execution of judgments of the European Court of Human Rights

18.       The Chair of the Drafting Group of DH-SYSC on the Recommendation CM/REC(2008)2 ( DH-SYSC-REC), Ms Emanuela TOMOVA (Bulgaria), presented the results of the Group’s work (6-8 March 2017, document DH-SYSC-REC(2017)R2), which resulted in the elaboration of a draft Guide to good practices on the implementation of the Recommendation CM/Rec(2008)2 on efficient domestic capacity for rapid execution of judgments of the European Court of Human Rights.

19.       It is recalled that the mandate of the Group is as follows:

-  “to take stock of its implementation, and make an inventory of good practices relating to it and, if appropriate, provide for updating the recommendation in the light of practices developed by the States Parties (deadline: 30 June 2017)” (specific task iv)).

20.       The CDDH thanked the Chair for her presentation and welcomed the drafting Group for the quality of the work accomplished. It adopted the text as it appears in the document CDDH(2017)R87 Addendum I and decided to transmit it to the Committee of Ministers for information.

3.3 Other work within the DH-SYSC

21.       Regarding Recommendation CM/Rec(2004)4 on the European Convention on Human Rights in university education and professional training, the CDDH approved the DH-SYSC decision to proceed to its update.

22.       The CDDH noted that a summary of the exchange of views that will take place within the DH-SYSC on the mechanisms to guarantee the compatibility of legislation with the Convention will be put online soon.

23.       Finally, regarding the analysis of national reports on the implementation of the Brussels’ Declaration by the member States, the CDDH asked the Committee of Ministers for an extension of the deadline until 30 June 2018, to analyse the national reports on the implementation of the Brussels’ Declaration by the member States and invited the States that had not yet transmitted their national report to the Secretariat of the Committee of Ministers ([email protected]) to do so as soon as possible.

3.4 Exchange of views on the procedure of simplified communication of applications

24.       Upon request of several delegations this point had been added to the order of business. Mr John DARCY and Ms Paola TONARELLY-LACORE, representatives of the Registry of the European Court of Human Rights, presented the new simplified communication procedure of applications (IMSI), put in place by the Registry since March 2016 in respect of twelve State Parties to the Convention[6]. They stated that, having regard to the continuingly increasing number of Chamber judgments, this procedure is important as soon as it involves the Parties to a greater extent than previously in the preparation of cases in view of their judicial examination.

25.       After the presentation, an exchange of views took place during which numerous participants expressed their concern with respect to the extension of this procedure after 31 December 2016 to other State Parties, yet without prior consultation with those States, although involving additional work for the capitals. The participants argued that the Registry extended this procedure even before having evaluated it together with the States, as initially foreseen. Accordingly, additional dialogue and consultation between the Registry of the Court and the Government Agents appear necessary before going any further in implementing this procedure.

26.       Certain experts had also reservations as to the systematic use of Article 47 of the Rules of the Court, which in view of the excessive formalities it causes, thus entailing a risk of violation of Articles 6 and 34 of the Convention.

27.       Mr John DARCY and Ms Paola TONARELLY-LACORE provided clarifications regarding the functioning of the IMSI procedure and confirmed that they will submit to the CDDH, by 30^th June 2017 at 18:00, an assessment of the results mode of operating of this procedure. The Document of the Registry will be transmitted to the CDDH experts and DH-SYSC, inviting them to send their possible comments to the Secretariat by Friday, 1 September 2017 at 18:00, addressed to [email protected] (see table of deadlines, Error! Reference source not found. hereafter)[7].

28.       Finally, the CDDH noted that the document of the Registry and the possible comments received from the experts could be object of an exchange of views during the informal meeting of Government Agents foreseen in Prague on 13 October 2017.

3.5 Envisaged Conference by the future Danish Presidency of the Committee of Ministers

29.       The Representative of Denmark informed the CDDH of the intention of his authorities to organise, during the future Danish Presidency of the Committee of Ministers of the Council of Europe (November 2017 – May 2018) a Conference which would allow an assessment of the Convention system and which would cover also the issue of dialogue between the European Court of Human Rights and the State Parties to the Convention. A preparatory experts meeting is foreseen in Copenhagen on 22-24 November 2017. The Conference will take place during spring 2018. Detailed information will be communicated in due time. The CDDH noted that its Bureau will hold its next meeting in Copenhagen at the dates combined with the preparatory meeting. 

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Extract of the report of the 88th CDDH meeting

(5-7 December 2017, document CDDH(2017)R87)

ITEM 3:           SYSTEM OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS

3.         The Chair of the Committee of experts on the system of the European Convention on Human Rights (DH-SYSC), Ms Isabelle NIEDLISPACHER (Belgium), presented the outcome of its 4^th meeting (9-10 November 2017, document DH-SYSC(2017)R4). She recalled that the DH-SYSC considered in depth the on-going work aimed to follow-up the CDDH report on the longer-term future of the system of the Convention. In this context, the DH-SYSC:

(i)    approved the draft Report prepared by its drafting Group I on the process of selection and election of judges of the European Court of Human Rights and decided to transmit it to the CDDH for adoption at its present meeting (see item 3.1 below);

(ii)   endorsed the working methods and the draft Outline elaborated by its drafting Group II on the place of the Convention in the European and international legal order (see item 3.2 below).

4.         The Chair of the DH-SYSC also informed that the Committee prepared extensive draft comments on Recommendation 2110 (2017) of the Parliamentary Assembly on the implementation of judgments of the European Court of Human Rights which it submitted to the CDDH for adoption at its present meeting (see item 2 above and Appendix III below).

5.         Finally, she indicated that the DH-SYSC (i) gave guidance on the on-going work concerning on the update of Recommendation CM/Rec(2004)4 of the Committee of Ministers to member States on the European Convention on Human Rights in university education and professional training; (ii) decided on a new theme in the framework of the exchange of information on the implementation of the Convention and the execution of the Court’s judgments, namely third-party interventions; (iii) exchanged information on the prospects of signatures and ratifications namely of Protocols Nos 15 and 16 and transmitted it to the CDDH.

3.1 Selection and election of judges of the Court (DH-SYSC-I)

6.         The Chair of the Drafting Group I on the selection and election of judges of the Court (DH-SYSC-I), Mr Vít A. SCHORM (Czech Republic), presented the results of the Group’s work, which led to the elaboration of a draft Report on the process of selection and election of judges of the European Court of Human Rights (document DH-SYSC(2017)R4Add).

7.         The CDDH reviewed the contents of the document and commended the quality of the work accomplished. Further to its review, it adopted its Report as it appears in document CDDH(2017)R88addI and decided to transmit it to the Committee of Ministers for information and possible follow-up.

3.2 Place of the Convention in the European and international legal order (DH-SYSC-II)

8.         The Chair of the Drafting Group on the place of the European Convention on Human Rights in the European and international legal order (DH-SYSC-II), Ms Florence MERLOZ (France), presented the results of the 2^nd meeting of the Group (20-22 September 2017, document DH-SYSC-II(2017)R2).

9.         The CDDH exchanged views on the working methods proposed by the Group. In endorsing them, it took note of the draft outline and the planning that the Group envisaged for its work as well as the election of Rapporteurs and Contributors. The CDDH underlined the importance of following the planning set due to the large scope of the work and the number of actors involved in the drafting process.[8] Concerning these aspects, the CDDH:

(i)    noted the high number of member States which participated at their own expense in the 2^nd meeting of the Group and welcomed the interest that they show for this work. The CDDH hopes that, in the future, the costs of representatives from these States could also be covered by the budget of the Council of Europe, subject to the availability of budgetary resources and following a rotation system (see Appendix XI below);[9]

(ii)   authorized the Group to hold an additional 7^th meeting of the Group in 2019 (see the calendar in Appendix XII below);

(iii)  welcomed the appointment of Mr Petr VÁLEK (Czech Republic) as a representative from Committee of Legal Advisors on Public International Law (CAHDI) to participate in the meetings of the Group;

(iv)     invited the participants to send to the Secretariat by the 20 December 2017 at 18:00 ([email protected])[10] suggestions of names of ad hoc experts to invite to meetings of the DH-SYSC-II.

3.3 Other work within the DH-SYSC

10.       The CDDH endorsed the decision of the DH-SYSC to set up a new Drafting Group DH-SYSC-III to update Recommendation CM/Rec(2004)4 of the Committee of Ministers to member States on the European Convention on Human Rights in university education and professional training. It noted that the Group will organise its work in 2018 through video conferences with the help of written contributions which will be made available by electronic means.

11.       The CDDH took note of: (i) the upcoming work on the update of the Guide to good practice accompanying Recommendation CM/Rec(2010)3 of the Committee of Ministers to member States on effective remedies for excessive length of proceedings; (ii) the decision of the DH-SYSC to work on third-party interventions[11] in the framework of its exchange of information on the implementation of the Convention and the execution of the Court’s judgments.

3.4 High-level Expert Conference “2019 and Beyond – Taking stock and moving forward from the Interlaken Process” (Kokkedal, Denmark, 22-24 November 2017)

12.       The Danish delegation informed about the outcome of the High-level Expert Conference “2019 and Beyond – Taking stock and Moving Forward from the Interlaken Process” (Kokkedal, Denmark, 22-24 November 2017) under the aegis of the Danish Presidency of the Committee of Ministers (November 2017 – May 2018). The CDDH commended the Danish authorities for the quality of this event, which gathered over 80 participants, out of which several members of the CDDH, including its Chair and vice-Chair, and which focused on the issue of dialogue between the Court and the States parties. It noted that a roundtable with actors from civil society will take place in Copenhagen in January 2018. This work is a part of the preparation of the High-level Conference which will take place in Copenhagen from 11 to 13 April 2018.

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