Ministers’ Deputies

Records

CM/Del/Act(2010)1081-final (Confidential)  5 May 2010

 

1081st meeting, 31 March 2010

Records

Addendum to CM/Del/Dec(2010)1081

 

CONTENTS[1]

Page

2.1bis   Current political questions
b. Other questions....................................................................................................................... 2

4.7        Committee for Human Rights (CDDH) –
Draft Recommendation CM/Rec(2010)… of the Committee of Ministers to member states on
measures to combat discrimination on grounds of sexual orientation or gender identity and its
draft Explanatory Memorandum................................................................................................... 4

11.2      Measures for early termination of service...................................................................................... 8

12.1      Congress of Local and Regional Authorities of the Council of Europe
b. 18th Plenary Session of the Congress (Strasbourg, 17-19 March 2010) – Texts adopted............. 8

Item 2.1bis

Current political questions

b.         Other questions

 

The Representative of Croatia made the following statement:

“On 25 March an International Conference on Durable solutions for refugees and internally displaced persons – Co-operation between countries of the region took place in Belgrade, bringing together Ministers of Foreign Affairs of Croatia, Bosnia and Herzegovina, Montenegro and Serbia, as well as representatives of the UNHCR, OSCE, EU and the Council of Europe.

This conference offered yet another opportunity to reaffirm the dedication of countries in South-East Europe to regional co-operation and their preparedness to find a just and durable solution for remaining issues regarding refugees and internally displaced persons in the region.

We say “yet another” because, five years ago, the so-called Sarajevo Process established a framework for finding a permanent solution, by defining return or local integration as two equal possibilities between which people can voluntarily decide. Croatia, having faced considerable war damages, took its obligations stemming from the Sarajevo Declaration very seriously and it is the only state in the region which introduced and implemented specific and measurable programmes for their fulfillment. In addition – although under no obligation in terms of international law – guided by humanitarian principles, we also introduced a mechanism for housing care for former tenancy rights holders, under a single condition, which lies at the heart of international refugee law, i.e. a demonstrated willingness to return. The question of fulfilling these self-imposed benchmarks remains at the top of the government's priorities, despite the financial crisis which, evidently, has not spared us either.

During the preparatory process, Croatia underlined the need to establish an accurate number of refugees, in order to counter an unrealistically high number of registered refugees in some countries and to enable a more precise estimate of additional financial assistance needed. We also advocated a transparent, efficient and measurable approach, guided by mutual confidence and based on developing concrete projects to meet real individual needs.

Simultaneously, more focus should be placed on the other dimension of the refugee problem, often unjustifiably neglected – that of the local integration of persons who voluntarily opt to stay in the receiving state. New realities should be taken into account in which a certain number of people, after over fifteen years of refugee status, for various reasons can no longer be considered as refugees in terms of international law.

Before concluding, let me briefly thank the international community, whose active assistance in resolving the refugee issue in the region to date has been essential. We were encouraged by the very positive remarks expressed at the conference by representatives of the OSCE, UNHCR and the European Commission, with regard to the direction which the final stage of this process is taking, as well as their expressed readiness to assist the agreement of the countries in the region. The international community has underlined that this process should be depoliticised and regionally owned, and we are pleased that the Council of Europe joined the OSCE statement in this respect. We also hope that this approach will be reflected in further Council of Europe actions in this respect, at all levels.

In conclusion, Croatia believes that the process of return is approaching its end and we firmly support a pragmatic, individual, humanitarian and depoliticised approach to its full completion, based on a firm application of international law standards. This, we believe, would benefit the remaining individuals who are still in need of protection – thus giving a real, practical meaning to the UNHCR motto “Real people, real needs” – and allow for the closure of the refugee chapter in the region.”

The Representative of Serbia made the following statement:

“May I take this opportunity to inform the Deputies about the International Conference on Durable solutions for refugees and internally displaced persons – Co-operation between countries of the region, which was held in Belgrade on 25 March 2010. The conference was initiated by the Government of the Republic of Serbia with the support of the UNHCR, the European Commission, the OSCE and the Council of Europe. The event brought together Ministers of Foreign Affairs of Bosnia and Herzegovina, Croatia, Montenegro and Serbia, and representatives of the said international organisations.

The conference joint statement reaffirmed the principles of the Sarajevo Declaration from 2005 and the continuation of the Sarajevo Process.

Coming from a joint stand that the problem of refugees and internally displaced persons has not yet been fully resolved in any of these states, the declaration concluded that regional co-operation needed to be intensified in order to achieve a comprehensive solution, primarily for the most vulnerable ones, with the awareness that this would contribute to the further promotion of good neighbourly relations and stability in the region, including mutual support in the European integration process.

On the concrete steps to be taken, the Ministers agreed to intensify mutual co-operation through regular national experts’ meetings aiming to determine the relevant data concerning all categories of refugees for whom it is necessary to ensure durable solutions, which is a prerequisite for defining the necessary measures to develop projects whose implementation would be internationally supported. Solving the problem of accommodation and assistance to refugees and IDPs still living in collective centres, including persons who are in a particularly difficult social position, was identified by the conference as a matter of priority.

It was agreed that consultations with the international community will be continued within a framework of ongoing co-operation, for the purpose of organising, within a period of nine months, an international donor conference to discuss the setting up of a multi-donor fund to assist in the process of return or local integration of refugees and internally displaced persons, closing of collective centres and providing assistance to the neediest. A regional review conference will be convened at the beginning of 2011 to assess the achieved results.

The Republic of Serbia highly values that the Ministers of Foreign Affairs of Bosnia and Herzegovina, Croatia and Montenegro accepted the invitation and recognised the common interest for participating at this conference. We do believe that joint efforts of the countries and international partners from the EC, UNHCR, OSCE and the Council of Europe should help in overcoming the existing problems in this respect, which also should be seen as a significant improvement in our regional relations. Serbia's position is that no open issue should be put to one side, in the knowledge that any concealment or delay could have a negative impact.

Within the strategic documents preparing for EU accession, all the countries of our region committed themselves to solving the refugee problems. We hope that we will obtain progress in the coming period on a definitive resolution of the outstanding issues.

The conference has shown that we are all in agreement that all sides should make additional efforts within the agreed timeframe to accelerate achieving just, comprehensive and durable solutions on the principles of Sarajevo Declaration. In this line, we hope that the conference was a step forward in returning the rights to all displaced persons, as a precondition for the establishment of full co-operation and reconciliation between the peoples in the region.

We emphasise the importance of setting up the bilateral and regional mechanisms for further co-operation in solving the open issues and finding lasting solutions. On this occasion, I would like to inform you that co‑operation began between the relevant national authorities of Serbia and Croatia, together with the

UNHCR, with the aim of determining the relevant data on the number of refugees and the rights they have accomplished so far. This information will serve as a starting point for initiating the concrete assistance projects for lasting solutions.

The Republic of Serbia considers that the development of an action plan for resolving specific issues with a clearly defined timeframe, budgetary resources and methodologies is of utmost importance.  In this regard, we underline the importance of the assistance and co-operation with the Council of Europe and the OSCE, as well as our expectation that their active role will be continued and intensified in the forthcoming period.”

 

 

Item 4.7

Committee for Human Rights (CDDH) –

Draft Recommendation CM/Rec(2010)… of the Committee of Ministers to member states on measures to combat discrimination on grounds of sexual orientation or gender identity and its draft Explanatory Memorandum

 

The Representative of the Russian Federation made the following statement:

“The Russian Federation supports combating discrimination of any kind in accordance with Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which ensures respect for human rights of all human beings without discrimination on any ground. As a multinational,
multi-confessional, and pluralistic country, Russia is particularly committed to fighting hate crimes and xenophobia. In so far as the recommendation shares the same goals, we do not oppose it.

However, an important element of an impartial approach, aimed at preserving stability and reducing social tension, is respecting the opinion of the majority and the cultural and moral values prevalent in society. It is also vital to avoid any kind of double standards, any “positive discrimination” which promotes rights and interests of one specific social group without giving due regard to the rights and interests of other groups.

And, of course, for all of us working in the Council of Europe, it is important to keep track of our legal obligations and very carefully approach the wording of our recommendations, which, although not legally binding, have a tangible effect on the development of European standards.

For these reasons, we are opposed to elaborating a special instrument aimed at increasing protection of LGBT persons. Their rights are already sufficiently protected by the general anti-discrimination provisions in the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as other Council of Europe instruments. We were apprehensive of the possibility that the new instrument will be used as a vehicle for controversy and forceful imposition of values which are by far not universal in Europe. Unfortunately, these apprehensions to a large extent came true. The draft recommendation was prepared in great haste, with only three meetings of a small working group, and was approved by the CDDH through a voting procedure despite the obvious lack of consensual support, with 11 delegations abstaining and one firmly against out of 32 participants voting.

We discovered that here, in the Council of Europe, fundamental rights of the most vulnerable persons – children, as well as the rights of parents, the rights to freedom of thought, conscience, religion and expression, and other rights and legitimate interests were subverted, cut short, and openly disregarded in favour of promoting the interests of a small minority of people. Selective quoting and double standards were, sadly, the dominant method during the first stage of elaboration of this recommendation and its explanatory memorandum. Instruments of the Council of Europe, decisions of the ECHR and other relevant documents were referred to only in so far as they supported the LGBT agenda; everything to the contrary was omitted and attempts to include it were, in the vast majority of cases, voted down.

At a later stage of the negotiations, within the Rapporteur Group on Human Rights, it was possible to introduce important amendments which improved the draft recommendation. As a result, the recommendation is now more objective and cognisant of both the legal and political reality in Europe.

Nonetheless, for the reasons outlined above, the Russian Federation cannot support the provisions of this recommendation without the following interpretative statement. Any other interpretation of this recommendation will be opposed by the Russian side.

1.         The Russian Federation considers that the provisions of the Recommendation of the Committee of Ministers to member states on measures to combat discrimination on grounds of sexual orientation or gender identity should be interpreted in the light of the international obligations of member states in the field of prohibition of discrimination, and should not create more favourable conditions for LGBT persons in comparison with other social groups.

2.         Any reference to judgments of the European Court of Human Rights should be understood as applying to the particular circumstances of the relevant cases.

3.         The Russian Federation interprets paragraphs 6 and 13 of the recommendation in the light of Articles 9 and 10 of the European Convention on Human Rights and Fundamental Freedoms. The right to freedom of thought, conscience and religion includes freedom to manifest religions and beliefs in teaching and practice; the right to freedom of expression includes freedom to hold opinions, receive and impart information and ideas. This may include critical attitude towards certain acts or practices. Interpreting statements as “hate speech” is subject to decision by national courts in accordance with national legislation.

4.         Paragraphs 9 and 16 of the recommendation should not be interpreted as preventing legitimate use of restrictions allowed by the European Convention on Human Rights. “Abuse” of provisions should be understood as referring to cases where the use of such restrictions is unfounded, i.e. contrary to law, not necessary in a democratic society, or not based on the relevant concerns of health, morals etc.

5.         The Russian Federation interprets paragraph 11 in accordance with the Declaration of the Committee of Ministers on Council of Europe action to improve the protection of human rights defenders and promotion of their activities, adopted on 6 February 2008, together with the interpretative statement made by the representative of the Russian Federation when it was adopted.

6.         All provisions of Part IV “Right to respect for private and family life” are interpreted by the Russian Federation on the basis of Article 12 of the European Convention on Human Rights, which provides that the exercise of the right to marry and to found a family is governed by national law, and on the unequivocal position of the European Court of Human Rights that the right to marry only refers to a union between a man and a woman, which cannot be construed as inhibiting the rights of LGBT persons and consequently does not constitute discrimination and call for an increase of these rights.

7          In connection with paragraphs 26 and 27, the Russian Federation will proceed from the universal principle of the best interests of the child, as enshrined in the United Nations Convention on the Rights of the Child. The best interests of the child should be the primary consideration in all decisions concerning the parental responsibility for, guardianship of or adoption of a child.

8.         The Russian Federation does not share the opinion that a single judgment of the European Court of Human Rights or decisions only in relation to one country must serve as a standard for all member states. It is indisputable that judgments of the Court are binding only for the states involved, according to Article 46 of the Convention. The Court itself has repeatedly declared that it is not bound by its own prior decisions, and that its decisions are only applicable to the specific circumstances of the respective cases. Moreover, LGBT

issues have been approached with much controversy by the Court, with recent judgments upholding diametrically opposing views on the subject. With this in mind, the Russian Federation considers itself to be bound by the provisions of the European Convention on Human Rights and not by the decisions of the European Court of Human Rights in respect of other member states.

9.         The explanatory memorandum to the recommendation may only be understood in light of the interpretations above.”

 

The Representative of Bulgaria made the following statement:

“In principle, Bulgaria supports the adoption of a Recommendation by the Committee of Ministers on measures to combat discrimination on grounds of sexual orientation or gender identity.

It shall be noted in this regard that national legislation in Bulgaria provides for full protection against discrimination, both direct and indirect, including (explicitly) on grounds of sexual orientation. Therefore, we fully support the operative part of this recommendation.

However, Bulgaria will consider the principles and measures contained in the appendix to the recommendation only in so far as these principles and measures are in conformity with her international legal obligations and relevant domestic legislation.

It is also solely on that basis that Bulgaria may participate in any future examination of the implementation of this recommendation.”

 

The Representative of Italy made the following declaration:

“I would like to express my government’s satisfaction with the final text of the recommendation, which, following the amendments, is now more balanced and complete.

Italy has one of the most up-to-date sets of anti-discrimination laws, including laws to combat discrimination on the basis of sexual orientation and gender identity and, over the last few years, it has introduced a series of special measures to prevent and combat the problem.

We would, however, like to point out that the basic principle of not discriminating against people on the basis of their sexual orientation or gender identity does not mean that they are treated equally in different personal or family situations, which are governed by quite separate national legislation, as indicated in Council Directive EU 2000/78/EC and by the European Court of Human Rights.

In this connection, it is necessary to underline the limits imposed by our legislation, which can only be modified by parliament in accordance with the decisions taken by the Constitutional Court in this field.”

 

The Representative of Latvia made the following statement:

“Latvia welcomes the adoption by the Committee of Ministers of the Recommendation on measures to combat discrimination on grounds of sexual orientation or gender identity. The recommendation addresses an important issue and its operative part is based on international standards of non-discrimination policy. Latvia adheres to these standards.

Nevertheless, we find the explanatory memorandum to this recommendation on some issues to be too ambitious. Therefore Latvia has some reservations with regard to the timeframe for implementation of this recommendation envisaged in the Committee of Ministers’ decision.

However, given Latvia's support to the international standards in non-discrimination policy and taking into consideration the reservations expressed above, Latvia joins the consensus on adoption of this recommendation.”

 

The Representative of Lithuania made the following statement:

“I would like to reiterate that the Republic of Lithuania is fully committed to upholding and protecting all human rights and considers this matter of the highest importance.

The principle of non-discrimination is enshrined in Lithuania’s legislation and Lithuania fully abides by this principle while implementing national laws and international agreements.

In relation to the Recommendation on measures to combat discrimination on the grounds of sexual orientation or gender identity, I would like to draw your attention to the following.

The level of understanding of the issue at hand and its sensitivity vary among member states of the Council of Europe.  The recommendations, which are self-explanatory and taken for granted in some countries, can elicit conflicting responses from the broad public and even resistance in others.

In this light, we would like to share our concern that the recommendation, especially having regard to the explanatory memorandum, in some respects goes beyond the case law of the European Court of Human Rights.

Recommendations of the Council of Europe are not binding on member states.  My delegation, while welcoming the exclusion from the body of the recommendation of the term that was set for the control of the implementation of this recommendation, and bearing in mind the short term set by the Committee of Ministers for its implementation, must indicate its reservation related to the fact that some of the provisions of the draft recommendation go beyond our legislative capacities and may create difficulties in its execution.

With these considerations in mind, I would like to conclude by expressing our assurance of support for the general aim sought by this recommendation.”

 

The Representative of Poland made the following statement:

“The Government of Poland supports the adoption of the Recommendation on measures to combat discrimination on grounds of sexual orientation or gender identity.

The Government of Poland would like to underline that we interpret paragraph 29 of this recommendation in the light of paragraph 29 of the Explanatory Memorandum.

Concerning equal treatment in employment, we would like to state that in some cases the difference of treatment in employment in regard of sex and sexual orientation may be justified. Therefore, bearing in mind the principle of non-discrimination described in paragraph 29, we would like to underline that a difference of treatment which is based on characteristics related to sex shall not constitute discrimination where such characteristics constitute a genuine and determining occupational requirement, provided that its objective is legitimate and the requirement is proportionate. Such interpretation is in compliance with the provisions of Polish Labour Law and the Directive of the European Parliament and of the Council of 5 July 2006 on the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.”

The Representative of Armenia made the following statement:

“The delegation of Armenia, while supporting the present recommendation on the grounds of promoting elimination of all kinds of discrimination, including on the grounds of sexual orientation, at the same time aligns itself with those previous statements, which concern the legal status of recommendations adopted by the Committee of Ministers and the role of national legislative bodies in defining the legal frameworks of their countries.”

 

 

Item 11.2

Measures for early termination of service

 

The Representative of Belgium made the following statement:

“This delegation would like to thank the Secretary General for the interesting documents that have been submitted to the Committee of Ministers and wishes to express its appreciation for his numerous efforts to launch reforms in the Organisation.

Belgium very much welcomes the general discussion on the human resources policy and particularly welcomes the intention to reduce staff so as to exercise closer control over staff expenditure, which now amounts to almost two-thirds of the Organisation’s budget.

I would also like to point out that, in the past, Belgium has often stressed the need to draw up a comprehensive staffing plan to replace the wide range of sometimes arbitrary decisions concerning staff. In our opinion, such a staffing plan should lay down precise rules concerning qualifications, grades, appraisal and the promotions policy. Clear guidelines in these matters would doubtlessly help to ensure healthy and sustainable management.

With regard to the measure proposed in the context of the early termination of service of permanent staff, this delegation has no intention to object to the adoption of the decision. Belgium is nevertheless surprised at the procedure used and regrets the somewhat artificial urgency with which this proposal has been dealt. Indeed, the draft decision was submitted at the last Committee of Ministers’ meeting in the form of a simple statement of the amount concerned (a fairly significant sum, equivalent to 1% of the budget), whereas the proposal is a very technical one requiring detailed explanations to enable the Deputies to take a transparent and fully informed decision.  Belgium therefore welcomes the Memorandum that was sent round yesterday and reiterates its full support for measures designed to reduce staff expenditure and create room for manoeuvre in the budget for the Council of Europe’s operational activities. This delegation is therefore impatient to learn of the Secretary General’s proposals with regard to priorities for 2011.”

 

 

Item 12.1b

Congress of Local and Regional Authorities of the Council of Europe

b.         18th Plenary Session of the Congress (Strasbourg, 17-19 March 2010) – Texts adopted

 

The Representative of Azerbaijan made the following statement:

“Allow me first to thank Mr Sawicki for his interesting and detailed presentation. I thank him also for the work he has carried out as the Secretary General ad interim of the Congress.

You know that the Congress’s delegation observed the municipal elections in Azerbaijan last December. We appreciated its work, especially the constructive spirit of co-operation shown by the Rapporteur Mr Francis Lec. However, I would like to express our concern and frustration about the way in which the adoption of recommendations and resolutions takes place in the Congress. My representatives participated in the last session of the Chamber of Local Authorities.  I should say that the procedure of voting and counting for numerous amendments by raising hands in the room where there are more than hundreds of participants is ineffective and non-transparent. Taking decisions on important matters should be taken in a more incontestable manner, that is to say, at least, by means of electronic voting.  The Congress is an organ which itself conducts election observation in member states. Therefore, we believe that the rules of procedure of the Congress should be adjusted. 

For instance, during the adoption of amendment No. 2 to Resolution 300 (2010) regarding the municipal elections in Azerbaijan, the voting was carried out four times and the results were different and controversial. As a result, the atmosphere was nervous and noisy. In amendment No. 16 to Recommendation 284 (2010), the voting was carried out with a procedural violation. All this was recorded by webcams. My delegation believes that such cases should not happen within the walls of this Organisation. It can only damage the relationship between the Congress and the state concerned.

As was underlined on many occasions, the institute of municipalities is relatively new in Azerbaijan. We try to do our best to make progress in the development of local self-government in Azerbaijan, and this was the case during the last elections, though we understand and accept, of course, that there is still room for improvement. Azerbaijan has always been open to co-operation with international partners and keen to develop good relations and partnership, especially with the Congress of Local and Regional Authorities of the Council of Europe. But, we would like this to be a mutual co-operation. We wish also that the Congress would show a more balanced, patient and objective approach in dealing with important issues. Last but not least, the principles of impartiality, transparency and accountability should be secured within the scope of the responsibility of the Congress.

As regards the draft decision concerning Recommendation 284 (2010) on municipal elections in Azerbaijan, I would like to suggest adding after item 16 the following sentence: “also took note of the statement given by the Azerbaijani delegation during the meeting”.”