Committee of Ministers

Comité des Ministres

EUROPEAN COMMITTEE ON CRIME PROBLEMS

(CDPC)

Bureau (CDPC-BU)

(enlarged)

Summary report of the

extraordinary meeting

(Paris, 21-22 December 1998)

Secretariat memorandum

prepared by the

Directorate of Legal Affairs

Introduction

The Bureau of the CDPC, enlarged to all member States wishing to participate, met in Paris, on 21 and 22 December 1998.

Ms Marjorie BONN (Netherlands) was in the chair.

The list of participants appears in Appendix I.

The meeting was exclusively devoted to carrying out the instructions addressed to it by the Committee of Ministers (653rd meeting of the Ministers' Deputies, 16-17 December 1998), as follows:

a. to prepare the work of the CDPC relating to the terms of reference (that appear in Appendix II), and

b. to instruct as appropriate the Committee of Experts on the Operation of European Conventions in the Penal Field (PC-OC) to follow and activate that work.

The Bureau was further required to keep the Deputies informed.

The meeting followed, item by item, the terms of reference (Appendix II).

Item (a) of the terms of reference

How to develop a fast and effective mechanism designed to facilitate the friendly settlement of any difficulty

The meeting reviewed the mechanisms already available for coping with difficulties.

1. The PC-OC

The Committee of Experts on the Operation of European Conventions in the Penal Field (PC-OC) has a double task, namely (a) to examine difficulties that arise out of the application of the Council of Europe Conventions in the penal field, and (b) to develop new instruments if and when necessary.

The PC-OC usually meets twice each year. At each meeting it devotes part of its time to exchanging views on difficulties voiced by the experts. Such exchanges of views may lead to it drafting recommendations. Usually they give rise to brief reports drafted by the Secretariat which are then informally published by way of "notes" on the text of the respective Convention.

The meeting recognised the importance of the PC-OC's work in this respect, in particular as a means of intervening upon difficulties at an early stage before they eventually grow into disputes.

The meeting decided to ask the PC-OC to reflect on ways to improve its communications with the CDPC on the results of such exercises.

2. Friendly settlement procedures

At present the terms of reference of the CDPC already provide that it should, inter alia, perform the tasks derived from the following Conventions: ETS 52, 70, 71, 73, 90, 101, 112, 116, 119, 141 and 156.

Such tasks are described, for example, in Article 23 of the Convention on the Transfer of Sentenced Persons, as follows:

"The European Committee on Crime Problems of the Council of Europe shall be kept informed regarding the application of this Convention and shall do whatever is necessary to facilitate a friendly settlement of any difficulty which may arise out of its application".

In practice, the CDPC only once was requested formally to perform such a task. It happened in June 1998, at the request of Italy, in a case involving the application of the Convention on the Transfer of Sentenced Persons.

Although many Conventions assign a problem-solving task to the CDPC, important Conventions, such as the Extradition and the Mutual Assistance Convention, do not. The Bureau agreed that it would be helpful if difficulties concerning several Conventions at the same time, could be assigned to the CDPC in the manner presently provided in respect of only some of those Conventions.

The Bureau identified the following areas which could be further reflected upon:

- Reservations: The impact of reservations on the effectiveness of the mechanisms under consideration should be considered;

- Urgency: Because the CDPC only meets once every year, the question of how to use the existing mechanisms in between CDPC sessions, especially in cases of urgency, must be considered. It was thought that probably the Bureau of the CDPC should take care of urgent requests. However, it should be assisted by persons who are experts, experienced and representative of the CDPC in general. The process of choosing those persons must be considered;

- Non-member States: The participation of non-member States, Party to a Convention, in such mechanism must be considered;

- Triggering mechanism: The question of whom might be empowered to trigger the mechanism must be considered;

- Procedural guidance: The question of whether the mechanism should work entirely on an informal basis (like it did in June 1998) or upon some kind of procedural guidance should also be considered;

- Recommendation: The question of whether the results of the procedure should be expressed in terms of recommendations, legally not binding, but carrying political weight must be considered;

- Non-Parties: The role of States non-Parties to one or more of the Conventions and the scrutiny must also be considered.

The Bureau (in its normal composition) will further pursue the reflection on this matter and for that purpose it will meet in Vienna during the week-end of 23 and 24 January 1999, when most of its members will be attending the two weeks' long United Nations Conference on the preparation of a Convention on organised crime.

3. Arbitration

The meeting recognised that while some Conventions (for example, the Terrorism and the Money Laundering Conventions), as well as the draft Comprehensive Convention, contain provisions on arbitration, other Conventions do not.

Some participants mentioned the possibility of expanding the scope of arbitration to all penal Conventions, while others wondered whether arbitration was at all needed in this context.

It was decided that the Bureau (in its normal composition) will clarify legal questions relating to the use of arbitration as well as the circumstances in which it presently can be applied, before reflecting on the need and the feasibility of improving present mechanisms in this respect.

Item (b) of the terms of reference

Convention on the Transfer of Proceedings in Criminal Matters

The question was raised of whether this Convention could not be used in cases where extradition was not possible (e.g. because of death penalty or life imprisonment), by involving a third State to which both the proceedings and the person sought would be transferred.

The experts from the States Party to this Convention, present at the meeting, expressed the opinion that their own countries would not agree to using the Convention to that effect. They also noted that effective use of this Convention can only be achieved by States that become a Party to it.

The meeting considered that the question of the application of Article 44 of this Convention, that deals with friendly settlement of disputes, does not arise at present because there is no known dispute involving this Convention.

The meeting decided to entrust the PC-OC with studying the question above.

The question was also raised of whether cases in which no State can, or wishes to, try a person accused of serious crimes, should not be internationalised. Indeed, in such cases it may be said that there is a common European interest in that justice be done, whilst no individual State is able or willing to assume such a duty. In this respect, the possibility of setting up a European Criminal Court was raised, but not discussed by the meeting.

Item (c) of the terms of reference

Draft Comprehensive Convention

The meeting agreed that the issue of whether or not to resume consideration of the draft Comprehensive Convention should be included in the agenda for the CDPC plenary session in 1999. Furthermore, it instructed the PC-OC to prepare an opinion on this issue for the CDPC.

It took note of the wish expressed by an expert to have the matters covered by the Terrorism Convention included in future work relating to the draft Comprehensive Convention.

Information for the Committee of Ministers

The Bureau instructed the Secretariat to transmit the minutes of this meeting to the Committee of Ministers for information.

APPENDIX I

LIST OF PARTICIPANTS / LISTE DES PARTICIPANTS

AUSTRIA / AUTRICHE

Mr Roland MIKLAU, Director of Criminal Legislation, Bundesministerium für Justiz

Member of the CDPC Bureau / Membre du Bureau du CDPC

BELGIUM / BELGIQUE

M. Xavier STEVENAERT, Conseiller Adjoint, Direction Générale de la Législation Pénale et des Droits de l'Homme, Ministère de la Justice

CYPRUS / CHYPRE

Mr George ANASTASSIADES, Former Permanent Secretary, Ministry of Justice and Public Order

Member of the CDPC Bureau / Membre du Bureau du CDPC

CZECH REPUBLIC / REPUBLIQUE TCHEQUE

Ms Irena STATNIKOVA, Deputy Director, International and Legal Department, Ministry of Justice

Member of the CDPC Bureau / Membre du Bureau du CDPC

FRANCE

M. Daniel FONTANAUD, Chef du Bureau du Droit Pénal Européen et International, Service des Affaires Européennes et Internationales (S.A.E.I.), Ministère de la Justice

GERMANY / ALLEMAGNE

Mr Michael GROTZ, Ministerialrat, Bundesministerium der Justiz

Member of the CDPC Bureau / Membre du Bureau du CDPC

GREECE / GRECE

Mrs Maria TELALIAN, Deputy Legal Adviser, Ministry of Foreign Affairs

ITALY / ITALIE

M. Vitaliano ESPOSITO, Attaché Juridique, Co-Agent du Gouvernement devant la Cour européenne des Droits de l'Homme, Représentation Permanente de l'Italie auprès du Conseil de l'Europe

Mr Giorgio LATTANZI, Director General of Criminal Affairs, Ministry of Justice

Mr Eugenio SELVAGGI, Director, Ufficio II, D.G.A.P., Ministero di Grazia e Giustizia

LUXEMBOURG

M. Gérard PHILIPPS, Représentant Permanent du Luxembourg auprès du Conseil de l'Europe

MALTA / MALTE

Mr Joseph FILLETTI, Judge, Superior Courts

MOLDOVA

M. Vitalie NAGACEVSCHI, Directeur, Direction Agent Gouvernemental et Relations Internationales, Ministère de la Justice

NETHERLANDS / PAYS-BAS

Mrs Marjorie BONN, Senior Legal Adviser, Ministry of Justice

Chair of the CDPC / Présidente du CDPC

Mrs Désirée PARIDAENS, Policy Adviser, Ministry of Justice

ROMANIA / ROUMANIE

Mme Cristina LUZESCU, Directeur, Direction des Relations Internationales et de l'Intégration Européenne, Ministère de la Justice89

RUSSIA / RUSSIE

Mr Sergy KAREV, Ministry of Foreign Affairs

SWEDEN / SUEDE

Mr Örjan LANDELIUS, Minister-Counsellor, Ministry for Foreign Affairs

Member of the CDPC Bureau / Membre du Bureau du CDPC

SWITZERLAND / SUISSE

M. Jean-Pierre KURETH, Adjoint Scientifique, Office Fédéral de la Justice

M. Peter MÜLLER, Vice-Directeur, Office Fédéral de la Justice

"THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

"L'EX-REPUBLIQUE YOUGOSLAVE DE MACEDOINE"

M. Gordan KALAJDZIEV, Faculté de Droit, Université St-Cyrille et Méthode

TURKEY / TURQUIE

M. Bahadir KALELI, Représentant Permanent Adjoint de la Turquie auprès du Conseil de l'Europe

Mr Seref ÜNAL, Director General, International Law and Foreign Relations, Ministry of Justice

SECRETARIAT

Mr Guy DE VEL, Director of Legal Affairs / Directeur des Affaires Juridiques

Mr Candido Cunha, Principal Administrative Officer / Administrateur Principal

Division of Crime Problems / Division des Problèmes Criminels

Secretary of the meeting / Secrétaire de la réunion

Mme Marie-Louise FORNES, Administrative Assistant / Assistante Administrative

Division of Crime Problems / Division des Problèmes Criminels

APPENDIX II

Ad-hoc Terms of Reference

1. Name of Committee: European Committee on Crime Problems (CDPC)

2. Type of Committee: Steering Committee

3. Source of terms of reference: Committee of Ministers

4. Terms of reference:

(a) to develop a fast and effective mechanism designed to facilitate the friendly settlement of any difficulty, including conflicts of jurisdiction, which may arise out of the application of any Council of Europe Convention in criminal matters, in particular the European Convention on Extradition and the European Convention on the Suppression of Terrorism, and to examine the efficiency of mechanisms for the settlement of disputes already contained in those Conventions;

(b) to examine, in close co-operation with the Parties to the European Convention on the Transfer of Proceedings in Criminal Matters, the possibility of effectively using that Convention, with reference in particular to its Article 44;

(c) in the light of what is mentioned above, to examine the possibility of resuming consideration of the draft Comprehensive Convention on International Co-operation in Criminal Matters (suspended in 1994 on the occasion of the 43rd plenary session of the CDPC), as well as the review mechanism it provides.

5. Duration of terms of reference: 30 June 1999