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Strasbourg, 29 April 2004 |
Monitor/Inf (2004)3 Addendum* |
COMPLIANCE WITH MEMBER STATES' COMMITMENTS:
THE COMMITTEE OF MINISTERS’
MONITORING PROCEDURES
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Compilation of texts prepared by the Monitoring Department of the Directorate of Strategic Planning |
CONTENTS
Page
I. Monitoring in application of the 1994 Declaration on compliance with commitments accepted by member states of the Council of Europe............................................................................... 4
A. Text of the 1994 Declaration ........................................................................................ 4
B. Text of the 1995 Procedure for implementing the 1994 Declaration............................. 5
C. Outline of the Committee of Ministers’ monitoring procedure by virtue of the 1994 Declaration 6
D. Use of paragraph 1 of the 1994 Declaration: seizure of the Committee of Ministers .... 7
1. Introductory note....................................................................................................................................... 7
2. At the initiative of the Secretary General............................................................................................... 7
(i) Text of letter, dated 26 June 2000, sent by the Secretary General to the Chairman of the Ministers' Deputies with respect to the situation in the Chechen Republic, Russian Federation .................. 7
(ii) Follow-up decided by the Ministers’ Deputies............................................................................... 8
(iii) Relevant extract from Ministers’ Deputies reply, of 9th January 2002, to Parliamentary Assembly Recommendation 1536 (2001)............................................................................................................... 8
3. On the basis of a recommendation from the Parliamentary Assembly .......................................... 9
(i) Relevant extracts from Parliamentary Assembly Recommendation 1600 (2003) on the human rights situation in the Chechen Republic, 2 April 2003.................................................................................. 9
(ii) Relevant extract from Ministers’ Deputies reply, of 28 May 2003, to Parliamentary Assembly Recommendation 1600 (2003)............................................................................................................... 9
E. Use of paragraph 4 of the 1994 Declaration: specific action ...................................... 10
1. Communication transmitted to the Parliamentary Assembly with respect to the theme democratic institutions (January 2000) ................................................................................................................... 10
(i) Text of the Communication .................................................................................................... 10
(ii) Measures taken by the Parliamentary Assembly.................................................................. 11
2. Contacts made, information collected and/or advice furnished by the Secretary General ...... 11
(i) Introductory note ....................................................................................................................... 11
(ii) With respect to the theme on Freedom of expression and information............................ 11
(iii) With respect to Ukraine ............................................................................................................. 19
(iv) With respect to Georgia ............................................................................................................. 22
(v) With respect to Moldova .......................................................................................................... 24
F. Use of paragraphs 5 and 6 of the 1995 Procedure for implementing the 1994 Declaration
on compliance with commitments .............................................................................. 25
II. Thematic monitoring ............................................................................................................. 25
A. General remarks ......................................................................................................... 25
B. Outline of the Committee of Ministers' thematic monitoring procedure ...................... 26
C. Overview of themes adopted by the Committee of Ministers ..................................... 27
1. Theme No. 1: Freedom of expression and information.................................................. 27
2. Theme No. 2: Functioning and protection of democratic institutions, including matters relating to political parties and free elections ....................................................................................................................... 29
3. Theme No. 3: Functioning of the judicial system ............................................................................. 30
4. Theme No. 4: Local democracy .......................................................................................................... 31
5. Theme No. 5: Capital punishment ...................................................................................................... 33
6. Theme No. 6: Police and security forces ............................................................................................ 35
7. Theme No. 7: Effectiveness of judicial remedies ............................................................................. 36
8. Theme No. 8: Non-discrimination, with emphasis on the fight against intolerance
and racism ................................................................................................................................................ 43
9. Theme No. 9: Freedom of conscience and religion .......................................................................... 43
10. Theme for which examination has been closed: Equality between women and men ............... 44
11. Re-adjustment of monitoring themes and proposals for new themes .......................................... 46
D. Reform of the Committee of Ministers’ thematic monitoring procedure...................... 46
1. Introductory note..................................................................................................................................... 46
2. The ad hoc Working Group on the reform of the thematic monitoring process (GT-MON)...... 47
III. Specific post-accession monitoring ....................................................................................... 48
A. Ad hoc monitoring with respect to Armenia and Azerbaijan ....................................... 48
1. Secretariat information missions to examine priority issues in view of post-accession
monitoring (2000).................................................................................................................................... 48
2. The Committee of Ministers’ ad hoc Monitoring Group GT-SUIVI.AGO ................................... 48
(i) Extract from Appendix 2 to the Committee of Ministers Resolutions Res(2000)13 and Res(2000)14, 09/11/2000............................................................................................................................................... 48
(ii) Relevant decisions 49
3. Study of cases of alleged political prisoners ...................................................................................... 52
(i) Introductory note and outline of the procedure............................................................................ 52
(ii) Relevant decisions............................................................................................................................. 53
B. Regular monitoring procedures on the basis of, inter alia, Secretariat’s reports .......... 55
1. Introductory note .................................................................................................................................... 55
2. With respect to Bosnia and Herzegovina (quarterly monitoring procedure)................................ 55
(i) Relevant decisions.............................................................................................................................. 55
(ii) State of work ...................................................................................................................................... 56
3. With respect to Georgia (six-monthly monitoring procedure).......................................................... 57
(i) Relevant decisions................................................................................................................................... 57
(ii) State of work.......................................................................................................................................... 58
5. With respect to Serbia and Montenegro (quarterly monitoring procedure)................................... 58
(i) Relevant decisions.............................................................................................................................. 58
(ii) State of work....................................................................................................................................... 59
Select bibliography ..................................................................................................................................................................... 59
I. MONITORING IN APPLICATION OF THE 1994 DECLARATION oN compliance with commitments accepted by member states of the Council of Europe
A. Text of the 1994 Declaration
COUNCIL OF EUROPE
COMMITTEE OF MINISTERS
DECLARATION
ON COMPLIANCE WITH COMMITMENTS
ACCEPTED BY MEMBER STATES OF THE COUNCIL OF EUROPE
(Adopted by the Committee of Ministers on 10 November 1994
at its 95th Session)
The Committee of Ministers,
Bearing in mind:
– the vocation of the Council of Europe to promote the reinforcement of democratic security in Europe, as stressed by the Vienna Summit (October 1993), where heads of state and government also resolved to ensure full compliance with the commitments accepted by all member states within the Council of Europe;
– the commitments to democracy, human rights and the rule of law accepted by the member states under the Council's Statute, the European Convention on Human Rights and other legal instruments;
– the importance of the strict compliance with these commitments by every member State;
– the statutory responsibility incumbent upon itself for ensuring full respect of these commitments in all member states, without prejudice to other existing procedures, including the activities of the Parliamentary Assembly and conventional control bodies;
– the need to facilitate the fulfilment of these commitments, through political follow-up, carried out constructively, on the basis of dialogue, co-operation and mutual assistance,
Decides as follows:
1. The Committee of Ministers will consider the questions of implementation of commitments concerning the situation of democracy, human rights and the rule of law in any member State which will be referred to it either:
– by member states,
– by the Secretary General, or
– on the basis of a recommendation from the Parliamentary Assembly.
When considering such issues the Committee of Ministers will take account of all relevant information available from different sources such as the Parliamentary Assembly and the CSCE.
2. The Secretary General will forward to the Committee of Ministers to this end information deriving from contacts and co-operation with member states that are liable to call for the attention of the Committee of Ministers.
3. The Committee of Ministers will consider in a constructive manner matters brought to its attention, encouraging member states, through dialogue and co-operation, to take all appropriate steps to conform with the principles of the Statute in the cases under discussion.
4. The Committee of Ministers, in cases requiring specific action, may decide to:
– request the Secretary General to make contacts, collect information or furnish advice;
– issue an opinion or recommendation;
– forward a communication to the Parliamentary Assembly;
– take any other decision within its statutory powers.
5. The Committee of Ministers will continue to seek greater efficacity in its procedures with a view to ensuring compliance with commitments, in the framework of a constructive dialogue.
B. Text of the 1995 Procedure for implementing the 1994 Declaration
COUNCIL OF EUROPE
COMMITTEE OF MINISTERS
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PROCEDURE FOR IMPLEMENTING THE
DECLARATION OF 10 NOVEMBER 1994
ON COMPLIANCE WITH COMMITMENTS ACCEPTED
BY MEMBER STATES OF THE COUNCIL OF EUROPE
(Adopted by the Committee of Ministers on 20 April 1995
at the 535th meeting of the Ministers' Deputies)
In the Declaration adopted on 10 November 1994 on compliance with commitments accepted by member States of the Council of Europe, the Committee of Ministers decided to seek greater efficacity in its procedures with a view to ensuring compliance with commitments, in the framework of a constructive dialogue. It has agreed on the following:
1. The dialogue will be based on the principles of non-discrimination and co-operation. It will not affect existing procedures arising from statutory or conventional control mechanisms.
2. At least three meetings of the Ministers' Deputies at A level, fixed in advance, shall be devoted every year to this question.
3. At the first meeting and subsequently every second year, unless otherwise decided, the Secretary General shall present a factual overview of the compliance with the commitments accepted by member States. The overview should be based on information from member States and all relevant information as set out in paragraph 1 of the Declaration.
4. If, during the deliberations, a need to continue the discussion on the situation in a member State is voiced, the matter will be put on the agenda of the next meeting, referred to in paragraph 2 above.
5. By request made a month before each of these meetings, any Delegation or the Secretary General may ask to put the situation in any member State on the agenda of that meeting, on the basis of its own concerns or with reference to a discussion in the Parliamentary Assembly.
6. The request should be accompanied by specific questions, to enable the Delegations concerned to obtain relevant information.
7. In accordance with Article 21 of the Statute, the discussions should be confidential and held in camera, to encourage a constructive dialogue with the member States concerned. The presence of senior officials from the capitals should be encouraged.
8. Conclusions of the meeting may be followed up in accordance with paragraph 3 of the Declaration. If needed, appropriate assistance may be provided to the member States concerned. Progress may be reviewed at subsequent meetings.
9. The Clerk of the Parliamentary Assembly may be invited to be present to provide information on any discussions in Assembly bodies on the States concerned.
10. Nothing in the preceding paragraphs precludes the Ministers' Deputies from taking decisions in accordance with paragraph 4 of the Declaration of 10 November 1994, after a question has been on the agenda for a reasonable number of meetings.
C. Outline of the Committee of Ministers' monitoring procedure by virtue of the 1994 Declaration
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PARAGRAPH 1 OF THE 1994 DECLARATION: questions of implementation of commitments concerning the situation of democracy, human rights and the rule of law in any member State (one, several or all member State(s)) |
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COMMITTEE OF MINISTERS |
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First stage: circulation of relevant information (member States, Secretary General, Parliamentary Assembly on the basis of a recommendation) - transmission of all relevant information available from different sources such as the Parliamentary Assembly and the OSCE, and/or - use of paragraphs 5 and 6 of the 1995 procedure for implementing the 1994 Declaration: any Delegation in the Committee of Ministers or the Secretary General may ask to put the situation in any member state on the agenda of a Committee of Ministers’ (in camera) monitoring meeting, on the basis of its own concerns or with reference to a discussion in the Parliamentary Assembly. This request should be accompanied by specific questions. |
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Second stage: debate (Committee of Ministers) - debate at one or more sessions, encouraging member states to take all appropriate steps to conform with the principles of the Statute in the matters under discussion, though dialogue and co-operation (paragraph 3 of the Declaration).
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COMMITTEE OF MINISTERS |
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Possible third stage · specific action, when so required, as set out in paragraph 4 of the 1994 Declaration: - to request the Secretary General to make contacts, collect information or furnish advice; - to issue an opinion or recommendation; - to forward a communication to the Parliamentary Assembly; - to take any other decision within its statutory powers. · re-adjustment of co-operation programmes, and/or · re-adjustment of intergovernmental work. |
D. Use of paragraph 1 of the 1994 Declaration: seizure of the Committee of Ministers
1. Introductory note
According to paragraph 1 of the Declaration, member States, the Secretary General or the Parliamentary Assembly can seize the Committee of Ministers with respect to questions of implementation of commitments concerning the situation of democracy, human rights and the rule of law in any member State. More specifically, this procedure may be activated so that the Committee of Ministers consider the situation in several or all member states or in the context of specific situations in one member State. To date, the Committee of Ministers has been seized twice on the basis of paragraph 1with respect to the situation in the Chechen Republic of the Russian Federation: once by the Secretary General, in June 2000, and a second time by the Parliamentary Assembly, in April 2003, in its Recommendation 1600 (2003).
2. At the initiative of the Secretary General
(i) Text of letter, dated 26 June 2000, sent by the Secretary General to the Chairman of the Ministers' Deputies with respect to the situation in the Chechen Republic, Russian Federation
Dear Chairman,
I have the honour of forwarding to you an analysis[1] of a team of international human rights law experts following the exchange of correspondence I have had with Mr Ivanov, Minister of Foreign Affairs of the Russian Federation, on the manner in which the Russian Federation’s internal law ensures the effective implementation of the European Convention of Human Rights. I refer you, in this connection, to Information Document SG/Inf(2000)21 of 10 May 2000.
As you are aware, I did not consider the replies I received from the Russian authorities as satisfactory “explanations” for the purposes of Article 52 of the European Convention of Human Rights. The findings of the team of independent experts have confirmed my views on this subject. In their opinion, the “replies given were not adequate and [...] the Russian Federation has failed in its legal obligations as a Contracting State under Article 52 of the Convention”.
Consequently, I consider it my duty, in particular in the light of the findings of the experts, to seize the Committee of Ministers of this matter by virtue of paragraph 1, second indent, of the 1994 Declaration on compliance with commitments accepted by member States of the Council of Europe.
A copy of the present letter, together with the analysis of the team of experts, have been forwarded to the Parliamentary Assembly and, for information, to the European Court of Human Rights and the Council of Europe Commissioner for Human Rights as well as other relevant international institutions.
Yours sincerely,
Walter SCHWIMMER
Mr Pietro Ercole AGO
Ambassador
Chairman-in-Office of the Ministers’ Deputies
Permanent Representative of Italy
to the Council of Europe
(ii) Follow-up decided by the Ministers’ Deputies
At their 725th meeting of 10th October 2000, the Ministers' Deputies, "without prejudice to the continued validity of the 1994 Declaration on compliance with commitments accepted by member states", recalled their decision at their previous meeting (5-6 October 2000) “to resume consideration of the contribution of the Council of Europe towards restoration of the rule of law, respect for human rights and democracy in Chechnya on the basis of a periodic report by the Secretary General” and noted that, in the context of such discussions, the Secretary General would provide them with “additional relevant information” (CM/Del/Dec(2000)725, item 1.7).
Further to the Ministers’ Deputies’ decision, the Secretary General instructed the Monitoring Department of the DSP to collect information regarding the situation of democracy, human rights and the rule of law in the Chechen Republic as indicated in paragraph 1 of the 1994 Declaration. Since then, the Secretary General has presented this information to the Ministers’ Deputies on a regular basis in the context of their discussions on the contribution of the Council of Europe towards restoration of the rule of law, respect for human rights and democracy in Chechnya. From November 2000 to May 2003, this information was issuedin the form of addenda to his Interim Reports “on the presence of Council of Europe’s experts in the Office of the Special Representative of the President of the Russian Federation for ensuring Human Rights and Civil Rights and Freedoms in the Chechen Republic”. Since January 2004, it appears in the second part of his reports on “Russian Federation: Council of Europe’s response to the situation in the Chechen Republic”. These documents are also forwarded to the Parliamentary Assembly for information (see in particular document SG/Inf(2004)3, Part II, which presents an overview of the situation since June 2000; for more detailed information, see also the following websites: www.coe.int/sg or http://dsp.coe.int/monitoring).
(iii) Relevant extract from Ministers’ Deputies reply, of 9th January 2002, to Parliamentary Assembly Recommendation 1536(2001) on Progress of the Assembly’s monitoring procedure (2000-2001) doc. CM/Del/Dec(2002)779, item 2.6
“Decisions
[…]
11. On 26 June 2000, by letter addressed to the Chairman of the Ministers’ Deputies, the Secretary General considered it his duty in respect of the situation in the Chechen Republic of the Russian Federation, “in particular in the light of the findings of the experts, to seize the Committee of Ministers of this matter by virtue of paragraph 1, second indent, of the 1994 Declaration on compliance with commitments accepted by member states of the Council of Europe”. This question was discussed by the Ministers’ Deputies.
12. In conformity with the Ministers’ Deputies’ decision (725th meeting, 10 October 2000, item 1.7), the Secretary General regularly submits to the Committee of Ministers, in addition to his monthly reports on the work of the Council of Europe experts in Mr Kalamanov’s Office, additional information regarding the situation of democracy, human rights and the rule of law in the Chechen Republic of the Russian Federation. These reports are transmitted to the Assembly for information.”
3. On the basis of a recommendation from the Parliamentary Assembly
(i) Relevant extracts from Parliamentary Assembly Recommendation 1600 (2003) on the human rights situation in the Chechen Republic, 2 April 2003
“1. The Parliamentary Assembly refers to its Resolution 1323 (2003) on the human rights situation in the Chechen Republic. It reiterates its belief that there will be no peace without justice in Chechnya.
2. The Assembly considers that urgent action is necessary to counteract the climate of impunity which has developed in the Chechen Republic over the last decade. Those guilty of past human rights abuses – whichever side of the conflict they belong to – must be brought to justice without further delay, and further human rights violations must be actively prevented.
3. Considering that the efforts undertaken so far by all actors involved, starting with the Russian Federation Government, administration and judicial system, but also including the Council of Europe and its member states, have failed dismally to improve the human rights situation and to ensure that past human rights violations, and particularly war crimes, are adequately prosecuted […].
4. […] the Assembly [also] decides to petition the Committee of Ministers by virtue of paragraph 1 of its 1994 Declaration on compliance with commitments accepted by member states of the Council of Europe, and recommends that the Committee of Ministers instruct the Secretary General to make contacts, collect information and furnish advice on the human rights situation in the Chechen Republic, in accordance with paragraph 4 of the said declaration.”
(ii) Relevant extract from Ministers’ Deputies reply, of 28 May 2003, to Parliamentary Assembly Recommendation 1600 (2003)
“2. Since June 2000, a monthly discussion takes place in the Deputies on interim reports by the Secretary General on the work of the Council of Europe experts present in Chechnya under the item “Contribution of the Council of Europe towards restoration of the rule of law, respect of human rights and democracy in Chechnya”. Relevant Parliamentary Assembly Recommendations are being taken into account during these discussions.
3. These discussions also take into account additional information regarding the situation in the Chechen Republic of the Russian Federation provided by the Secretary General. Both the monthly interim reports and the addenda thereto are transmitted to the Assembly.”
E. Use of paragraph 4 of the 1994 Declaration: specific action
1. Communication transmitted to the Parliamentary Assembly with respect to democratic institutions (January 2000)
(i) Text of the Communication [extract from document CM/Monitor(2000)2 - AS/Inf(2000)01, Parts I, II, III; see also document CM/Monitor(99)16]
(ii) Measures taken by the Parliamentary Assembly
Since this “communication” had been forwarded to the Parliamentary Assembly in January 2000, a number of texts have been adopted by the Assembly, in particular Resolution 1308 (2002) on restrictions on political parties in the Council of Europe member states (see Assembly’s Internet Site: assembly.coe.int).
2. Contacts made, information collected and/or advice furnished by the Secretary General
(i) Introductory note
Since June 2000, the Committee of Ministers has instructed the Secretary General to make contacts, collect information or furnish advice several times. Two forms of action have been undertaken in this context: either independent experts have been appointed by the Secretary General to assist him in his task or a Secretariat delegation has visited the member state concerned. As concerns the latter, these reports are discussed by the Committee of Ministers and co-operation programmes re-adjusted if and when deemed necessary; in some cases, targeted action programmes have been implemented and/or a regular monitoring procedure with regard to a country set up.
(ii) With respect to the theme on freedom of expression and information[2]
(a) Relevant decisions adopted by the Ministers’ Deputies (2000-2003)
Extracts from Ministers' Deputies 712th meeting, doc. CM/Del/Dec(2000)712, item 2.1, of 5 and 6 June 2000
“Decisions
The Deputies, in the light of the discussion on freedom of expression and information at the present meeting, and in accordance with Paragraph 4, first indent, of the Declaration on compliance with commitments adopted by the Committee of Ministers on 10 November 1994,
1. requested the Secretary General to make contacts and collect information on this theme;
2. invited the Secretary General to provide the Deputies with the results by the end of the year [extended until 28 February 2001: see CM/Del/Dec(2000)723, item 2.5, 2 October 2000];
3. decided to resume consideration of this item at their [second] in camera meeting in 2001.”
Extracts from Ministers' Deputies 761st meeting, doc. CM/Del/Dec(2001)761, item 2.3, of 18 July 2001
“Decisions
In the light of the results of their 755th meeting (in camera, 7th June 2001), and in particular the Chairman’s summing-up in which proposals had been made on the theme “freedom of expression” (CM/Monitor (2001)10), the Deputies,
[…]
3. took note that the Secretary General, in accordance with the Deputies’ previous decisions taken at their 712th meeting (CM/Del/Dec(2000)712, item 2.1, dated 5 & 6 June 2000), will further pursue his contacts and collect information on the theme freedom of expression and information in all member states and will provide the Deputies with the results by the end of 2002;
[…]”
Extracts from Ministers' Deputies 846th meeting, doc. CM/Del/Dec(2003)846, item 2.4, of 3 July 2003
“Decisions
The Deputies
in the light of the results of their 836th (in camera) meeting (15 April 2003) on the subject of “freedom of expression and information”
1. invited Delegations to provide the Secretariat (Monitoring Department, DSP), not later than 15June 2004, with information indicating the extent to which the Committee of Ministers monitoring on this subject has led to concrete results, as well as relevant proposals;
2. invited the Secretary General to
a. present, by mid-September 2004, a background paper consisting of information provided by member states, as well as any additional data from different sources such as the Parliamentary Assembly and the OSCE[3], on the understanding that emphasis be placed on progress achieved;
b. furnish the Deputies with advice in conformity with the requirements set out in the 1994 Declaration on Compliance with Commitments accepted by member States of the Council of Europe, based on best practices in the field of freedom of expression in the member States; and
c. transmit for information, on a confidential basis, documents CM/Monitor(2002)25 and its addenda, CM/Monitor(2003)2, as well as relevant extracts from CM/Del/Act(2003)836 to the Steering Committee on the Mass Media (CDMM), the Steering Committee for Human Rights (CDDH) and the Commissioner for Human Rights;
3. decided to resume consideration of this theme at its third monitoring (in camera) meeting in 2004 with a view to formulating conclusions and follow-up action; [to be held on 21 October 2004]”.
(b) Relevant extracts from Ministers’ Deputies reply, of 9th January 2002, to Parliamentary Assembly Recommendation 1536(2001) on Progress of the Assembly’s monitoring procedure (2000-2001), doc.CM/Del/Dec(2002)779, item 2.6
“Decision
[…]
4. A new impetus has been given to the Committee of Ministers’ thematic monitoring procedure as, in respect of the theme of freedom of expression and information, the Committee of Ministers has undertaken specific action: experts appointed by the Secretary General visited four member states (Albania, Russia, Turkey and Ukraine) and, at the request of the Committee of Ministers, the Secretary General will pursue his contacts to collect information on this theme in all member states, including through additional expert missions. In this respect, the Committee of Ministers will pursue co-operation with the Assembly, since freedom of expression and information in the media is also a subject dealt with by the Assembly, for which a General Rapporteur on the Media has been appointed. It furthermore recalls that following a proposal by the Assembly in its Recommendation 1506 (2001) on the freedom of the media in Europe (paragraph 16. viii.), an exchange of views with the OSCE Representative on Freedom of the Media on the theme freedom of expression and information took place on 28 September 2001.”
(c) Extracts from document CM/Inf(2002)40, Conference “The media in a democratic society: reconciling freedom of expression with the protection of human rights” organised by the Luxembourg Chairmanship of the Committee of Ministers (Luxembourg, 30 September – 1 October 2002): Summing-up and conclusions
Extracts from the Opening address by Mrs Maud De Boer-Buquicchio,
Deputy Secretary General of the Council of Europe
“[…]
The first most worrying question is that there are still cases in Europe of media professionals being harassed, and sometimes even beaten or killed, when reporting on matters of public interest, for example corruption or wrongdoings by public authorities. Although we all agree that this is unacceptable, we must ask ourselves whether the initiatives which we have taken so far to prevent such cases should be reconsidered in order to create more effective, concerted action. Should, for example, the establishment of an emergency response mechanism between the three international institutions [the Council of Europe, the European Union, the OSCE] be considered?
Another political question concerns the alignment of the legal framework governing freedom of expression and the operation of the media in member States with the relevant international standards, and in particular those of the Council of Europe. Substantial progress has been made in this respect thanks, in particular, to the legislative assistance which the Organisation has provided to its new member States since the fall of the Berlin Wall. The monitoring procedures, established by the Committee of Ministers and the Parliamentary Assembly, which give priority to the question of freedom of expression and freedom of the media, have also been instrumental in the incorporation of the Council of Europe "acquis" in member States' domestic law and practice.
However, it has been noted in the context of these monitoring procedures and by institutions such as the OSCE Representative on Freedom of the Media, that there are still cases, sometimes quite serious, where these standards are not yet fully reflected in domestic law and practice throughout the continent. The independence of public radio and television vis-à-vis public authorities and the right of journalists to have access to official documents or to protect their sources of information are precisely areas in which domestic law is not always up to these standards.
I would like to use this platform to appeal to the governments of all member States to pay particular attention to this issue and to consider what concrete measures they could take in order to promote the full implementation of Council of Europe standards in Europe.
[…]
This being said, applicant countries to the European Union and other countries from central and eastern Europe are not the only ones which should come under scrutiny.
There is also room for improvement by the long-standing member States of the Council of Europe. A number of these countries have obsolete laws, for example concerning the press, which include repressive provisions no longer suitable for a modern democracy's media requirements. Although some of these provisions are no longer applied, others still are, in contradiction with Article 10 of the European Convention on Human Rights.
The long-standing member States of the Council of Europe ought to review their media legislation and practice in order to remove any such old-fashioned restrictions and align them fully with the requirements of Article 10 of the European Convention on Human Rights, as interpreted by the Strasbourg Court. May I, in this context, congratulate the Luxembourg authorities for having taken such an initiative by preparing a new Law on freedom of expression in the media. […]”
Extracts from report of the General Rapporteur, Mr Aidan White, Secretary General of the International Federation of Journalists
“[…]
Media and the right to a fair trial
There is a continual argument about whether press campaigns may interfere with the right to a fair trial. Sometimes the public interest in a topic is so overwhelming that traditional standards of presumption of innocence are challenged, as in the Dutroux case in Belgium where for five or six years a paedophile scandal has been in the headlines, but the trail is not due for some time yet.
In Italy, there has for many years been concern about media coverage of people subject to investigation by magistrates. In the UK, though, contempt laws try to ring fence defendants from public scrutiny, often to the irritation of media. Different national legal traditions make it difficult to design a one-size-fits all model for Europe.
As we heard, presumption of innocence and freedom of information are competitive rights, but no satisfactory balance has yet been found. Should there be one? Inevitably, media, if they are doing their job, will push the limits of secrecy in this area, particularly when the public interest demands it.
Pluralism and Diversity: the Challenge of media concentration:
Quality means well-informed and empowered citizens, but the market makes it harder for news to be presented in a way that makes it useful to them.
Both Council of Europe and European Union have made emphatic statements that media products are not like other economic products because they have a social, cultural and democratic value. The treatment of news and information as a commodity must not override or interfere with the duty of journalists to inform their audience.
While most large countries jealously guard their national media treasurers from undue concentration, many small countries - particularly in the transformation states - have seen their major newspapers and private electronic media bought up by a handful of major foreign media companies.
Does this undermine the scope of media pluralism? Many journalists are convinced that it does. The failure of European legislators to confront this challenge raises a serious question about the power of the modern corporate media lobby and political will. More than ten years ago the European Commission promised action in this field, but nothing has happened; yet the situation is getting worse. The problem is that existing competition law is built upon European-wide markets and thresholds that are too high to catch media in the net.
But I remain baffled as to why political institutions remain silent over the situation in Italy where one of the world's leading media owners, who happens to be country's prime minister, has almost 90 per cent of the country's audiovisual media under his influence. This sets a standard that if followed in transformation states would render them ineligible for admission to the European Union.
Ethics and Self-regulation
Can we rely on journalists themselves and media organisations to set editorial standards and to create credible structures to protect the interests of citizens and consumers? It's a tough question that needs to be answered by media professionals if we are to avoid the growing pressure for stronger forms of regulation.
[…]
Protection of Sources:
Everyone wants to know who journalists are talking to -- the police, governments, corporations, and special interest groups. But journalism is only ever as good as the sources of information that journalists have and if there is no adequate protection of the right of confidentiality the quality of journalism will suffer dramatically.
European Court in Goodwin case (1996) established that protection of sources is an "integral part of freedom of expression" as set out in Article 10.
But there are new problems:
a) Demands for media to hand over film or pictures as evidence of serious crimes and
b) Subpoenas on reporters to give testimony of what they have seen while in the exercise of journalism
The controversies over giving evidence to the Hague War Crimes tribunal recently will grow as the International Criminal Court becomes an established part of the international legal landscape. What does this mean for the status of journalists as independent neutral observers? These new developments must be investigated by the Council of Europe.
The conclusion that media enjoy protection of sources not in their own, but in the public's interest is increasingly tested, certainly in many transformation countries as we have heard, but the Council of Europe recommendation in this area helps to clarify the position.
However, the challenge of introducing wider protection for journalists is being addressed here in Luxembourg with the new draft law. It is a creative attempt to define legal conditions that will provide more protection for journalists. But can this be done without imposing a legal definition of who is a journalist? The dangers of authoritarianism are never far away when we start to do this. […]”
Extracts from statement by Mrs Lydie Polfer, Deputy Prime Minister, Minister for Foreign Affairs and Foreign Trade of Luxembourg and Chairman of the Committee of Ministers [May-November 2002] at the closing sitting of the Conference
“[…] As part of its "monitoring" activities, the Committee of Ministers has already devoted much effort to study of media freedom and the extremely serious problems that can arise in this context. Its findings have been transposed into the work of steering committees and intergovernmental committees of experts and have led to the adoption, inter alia, of important guides to practice for member states such as Recommendation N° 7 of 2000 on journalists' right not to disclose their sources, and Recommendation N° 2 of 2002 on access to public documents.
Moreover, the thematic "monitoring" by the Committee of Ministers has prompted far-reaching action in the area of freedom of expression and information, namely the appointment by the Secretary General of experts who are at work gathering objective information in all member states[4]. This work, currently in full swing, will be reviewed by the Ministers' Deputies in early 2003. In addition, several of these experts have taken part in the proceedings of the present conference, for which I sincerely thank them.
The Parliamentary Assembly and the Congress of Local and Regional Authorities of Europe, which conduct a country-by-country scrutiny of national situations, looking for shortcomings of democracy that may occur, also emphatically draw the attention of the public authorities to the breaches found and make proposals for correcting unsatisfactory situations.
That was the case just last week at the autumn parliamentary session, concerning issues that included freedom of expression and media freedom in Armenia and Azerbaijan, as well as in Moldova. In the last few years, moreover, the Assembly has also adopted a number of resolutions of general scope dealing with various aspects linked to freedom of expression and information in the member states.
Such being the case, it would be mistaken to saddle the new member states alone with all the responsibilities and the blame for all wrongs. […]
What strikes me in this regard is that the new democracies very often possess far more modern legislative frameworks than their elders, introduced thanks to the assistance and expertise of institutions such as the Council of Europe, but that their implementation - associated with the necessary evolution of attitudes and emancipation from the legacy of an undemocratic past - is being achieved only very gradually. Some older member states, on the other hand, should take to heart the criticisms levelled at them regarding the existence of outmoded legislative frameworks and inadequacy of reform in that respect.
Where media freedom is concerned, it is imperative that those who govern understand and accept that the ruling power cannot and must not dictate to the press the type of information that would suit it best. The media have the right, even the duty, to raise queries and to challenge those wielding the power vested in them by the people. Journalists may irritate; their critical pronouncements are often a nuisance but have the advantage of fuelling genuine public debate, founded on interplay of opinions, on a foundation of information freely obtained and made available to the public. We ought not to forget that information is not a stake fought over by politicians and media. It belongs primarily to our peoples.
[…]
A drastic case which, alas, seems to me symptomatic of the grave threats that may overshadow the exercise of freedom of expression concerns Mr Georghi Gongadze, a Ukrainian journalist who went missing two years ago and was found murdered. The investigation is dragging; the information available to the international community is contradictory. The new State Prosecutor General was on a visit to the Council of Europe at the beginning of September. During his high-level contacts he undertook - as he had already done on taking office in July 2002 - to fully elucidate this case which has gone on for too long and whose uncertainties have become very weighty. The Committee of Ministers is encouraging him to do so at the domestic level, meanwhile suggesting the best possible use of international expertise to carry through the inquiry which is in progress.
Disappearance of journalists in our countries in this day and age is disturbing in the extreme. Their persecution or harassment is serious enough in itself. It is outrageous and reprehensible to silence people who cause embarrassment, or to attempt to limit their activities and expression. The ambition of the Council of Europe must be to carry on its efforts to assist in the transformation of the legislative frameworks, but also of normal human attitudes to freedom of expression and information. This is a protracted task which must be undertaken without faltering.
Yesterday during the opening session, the Deputy Secretary General of the Council of Europe put forward an idea that deserves our close examination. Its substance is to say that blatant violations of freedom of expression and information that place journalists' physical integrity at risk, for instance, cannot be adequately countered by means of the conventional monitoring procedures, but rather by thinking in innovative terms that respond to the urgency of the situation. Ms De Boer-Buquicchio, in the event of an unacceptable situation, thus stated the case for a rapid reaction mechanism which would be perfectly conceivable for several partner organisations to develop among themselves, namely the Council of Europe, the OSCE and the European Union. I am in favour of having the officials of the institutions concerned study the feasibility of such an emergency mechanism.
Regarding journalists' physical integrity, I should also like to mention two important texts, a declaration and a recommendation adopted by the Committee of Ministers in the spring of 1996 and dealing with the protection of journalists in situations of conflict and tension. This grave matter unfortunately retains its immediacy. I have noted that in March 2002 the international non-governmental organisation "Reporters sans Frontières" (RSF) published a Charter on the same subject. It would be worthwhile to compare the elements selected at the time by the governments of the Council of Europe member states with those identified by the journalists themselves, in order to see how far they complement each other and could coincide, and the extent to which they might diverge or even be contradictory. […]”
(d) The situation of the media in Ukraine: extracts from the Ministers’ Deputies 825th meeting, doc. CM/Del/Dec(2003)825, item 2.3., 22 January 2003
“Decisions
The Deputies
1. asked the Ukrainian authorities to implement the Secretary General’s experts’ recommendations on the situation in Ukraine (see p. 8-9 of document CM/Monitor(2002)24) and in this context underlined the necessity of giving an effective follow-up to the action plan on the media in Ukraine, in particular concerning the alignment of the legislative framework with the recommendations made by the Council of Europe experts;
2. invited the Chairman of the Committee of Ministers to address a letter to the Ukrainian authorities drawing their attention to the problems identified in the experts’ report and on the recommendations made in this regard;
3. took note with interest of the information provided by the Ukrainian authorities and instructed their Rapporteur Group for Democratic Stability (GR-EDS) to follow the practical consequences for the action plan and to report back in due course without prejudice to the on-going monitoring procedure on the theme of freedom of expression.”
(e) Committee of Ministers’ Reply to Recommendation 1589 (2003) on freedom of expression and information in the media in Europe, adopted on 17 September 2003, at the 852nd meeting of the Ministers' Deputies
“1. The Committee of Ministers has considered the Parliamentary Assembly's Recommendation 1589 (2003) on freedom of expression and information in the media in Europe and has brought it to the attention of member Governments. It also forwarded the recommendation, for information, to the Steering Committee on the Mass Media (CDMM) and the Council of Europe Commissioner for Human Rights.
2. The Committee of Ministers shares the concerns expressed by the Assembly with respect to the persistence of problems and the occurrence of new violations relating to freedom of expression and information.
3. Freedom of expression and information in the media, as protected by Article 10 of the European Convention of Human Rights, indeed remains a high priority for the Committee of Ministers, as illustrated by its 1982 Declaration on the freedom of expression and information or, more recently, by the Conference on “The media in a democratic society: reconciling freedom of expression with the protection of human rights” held under the Luxembourg Chairmanship from 30 September to 1 October 2002, to which the President and members of the Parliamentary Assembly actively contributed[5].
4. On the basis of close interaction of its intergovernmental programme of activities with assistance and co-operation programmes, as referred to in its reply to the Assembly Recommendation 1506 (2001), the Committee of Ministers has continued to monitor closely the state of freedom of expression and media pluralism in all Council of Europe member states within the framework of all its monitoring functions and procedures so as to bring member states' legislation and practice closer to European standards, where necessary. Particular emphasis in this context has been made on the case-law of the European Court of Human Rights, relevant Committee of Ministers legal and policy instruments and the findings of the Parliamentary Assembly. Here, the Committee of Ministers expresses its satisfaction as to the complementarity of work undertaken by both of the Organisation's Statutory organs on this subject, thereby facilitating the achievement of better results. It congratulates the Assembly for its sustained monitoring of the situation of the media in Europe and for its first attempt of thematic monitoring.
5. In mid-April 2003, the Committee of Ministers held a special in camera monitoring meeting and examined the results brought before it by the Secretary General further to his contacts and collection of information in all member states, including countries where an in situ visit was carried out in 2002 and 2003, i.e. Albania, Azerbaijan, Georgia, Moldova, Romania, the Russian Federation, “the former Yugoslav Republic of Macedonia”, Turkey and Ukraine. Three states (Georgia, Moldova and Ukraine) have already agreed to declassify and make public the reports on the media situation in their respective countries which had been undertaken by the Secretary General's team of independent experts. In the context of their discussion at the special in camera meeting, the Ministers' Deputies drew particular attention to the measures to be implemented, where appropriate, by member states, as recommended by the Assembly in paragraph 17 of its recommendation. In this connection, the Committee of Ministers carefully examined the request made by the Assembly as concerns the results of its monitoring on freedom of expression.
6. In the light of the above, and in reply to paragraphs 16 and 17 of the Parliamentary Assembly Recommendation 1589 (2003), the Committee of Ministers:
a. encourages all member states who so wish to make public findings in the context of its monitoring exercise on freedom of expression and information with respect to their respective countries;
b. invites the Secretary General,
- in the light of the conclusions of this monitoring exercise, to ensure proper follow-up in the
co-operation and assistance programmes;
- present, by mid-September 2004, a background paper consisting of information provided by member states, as well as any additional data from different sources such as the Parliamentary Assembly and the OSCE[6], on the understanding that emphasis be placed on progress achieved;
- furnish the Deputies with advice in conformity with the requirements set out in the 1994 Declaration on Compliance with Commitments accepted by member States of the Council of Europe, based on best practices in the field of freedom of expression in the member states;
c. in urgent cases, expects the Secretary General to continue to bring to the attention of the Committee of Ministers any serious breaches of freedom of expression in member states;
d. encourages all member states to request Council of Europe assistance when reviewing their relevant legislation and practice and to duly take into account recommendations provided in this context;
e. calls on all member states to incorporate the case-law of the European Court of Human Rights in the field of freedom of expression and information into their domestic legislation and practice and to ensure appropriate training of judges, prosecutors and other public officials in this respect. In this connection, it wishes to inform the Assembly that, in the context of its monitoring exercise, a short overview of the Strasbourg Court's case-law has recently been issued and translated into several European languages[7].”
Secretariat Note: reports by the Secretary General’s independent experts, following their visits to Georgia, Moldova and Ukraine (documents CM/Monitor(2002)7, CM/Monitor(2002)17 and CM/Monitor(2002)24), can be found on the Committee of Ministers’ website: www.coe.int/cm and http://dsp.coe.int/monitoring. Until now, Albania, Azerbaijan, Romania, the Russian Federation, “the former Yugoslav Republic of Macedonia” and Turkey have not authorised the declassification of reports subsequent to in loco visits by the Secretary General’s independent experts.
(iii) With respect to Ukraine
(a) Extracts from the Ministers' Deputies 754th meeting, doc. CM/Del/Dec(2001)754, item 2.7, of 6, 7-8 June 2001: Chairman’s summing-up and relevant decisions
“Chairman’s summing up
The Chair concluded that the decisions under this item on the Secretary General’s proposals concerning Ukraine following the Ministers’ informal meeting on 10 May 2001 had been taken within the framework of the 1994 Declaration on compliance with commitments accepted by member states of the Council of Europe”.
“Decisions
The Deputies
in the light of the Secretary General’s proposals concerning Ukraine following the Ministers’ informal meeting on 10 May 2001 and Parliamentary Assembly’s Recommendation 1513 (2001) and consequently requesting the Secretary General to make contacts, collect information and furnish advice;
taking into account the letter of the Foreign Minister of Ukraine to the Secretary General of 28 May 2001 […],
2. decided to ask the Secretary General to send, at the earliest opportunity, a Secretariat mission with a view to assisting the Ukrainian authorities to fulfil their remaining commitments and to providing relevant information to the Committee of Ministers;
[…]
5. decided to resume examination of this issue following receipt of the report of the mission to Ukraine at their 762nd meeting (5 September 2001)”.
(b) Extracts from Ministers' Deputies 765th meeting, doc. CM/Del/Dec(2001)765, item 2.5, of 19 September 2001, Reply of the Committee of Ministers to Parliamentary Assembly Recommendation 1513 (2001) on the honouring of obligations and commitments by Ukraine
“Decisions
The Deputies adopted the following reply to Parliamentary Assembly Recommendation 1513 (2001):
“1. The Committee of Ministers recalls its Interim Reply to Recommendation 1513 (2001) on the honouring of obligations and commitments by Ukraine (adopted at its 758th meeting, 21-25 June 2001, item 2.6) and wishes to inform the Assembly that the Secretariat assistance and information mission to Ukraine, referred to therein, took place from 26 to 29 August 2001. The Secretariat mission report (doc. SG/Inf(2001)27, available on the Council of Europe Internet site : www.coe.int/sg) contains a general evaluation of the honouring of every commitments undertaken by Ukraine when joining the Council of Europe, as well as specific proposals for future action in the framework of Council of Europe co-operation programmes. The Committee of Ministers took note in particular of the general conclusions and specific proposals for future action listed in paragraph 15 of the Secretariat Report in which the significant progress made by Ukraine in fulfilling its formal commitments is acknowledged. It also stressed the necessity to secure proper implementation at all levels of the new democratic regulations and institutions.
2. The Committee of Ministers instructed the Secretariat to take into account the various recommendations in the preparation of future co-operation programmes of the Council of Europe with Ukraine (in particular the proposed European Commission/Council of Europe Joint Programme).
3. As regards, more specifically, sub-paragraph 10 (iii) of Assembly Recommendation 1513 (2001), information on the state of progress regarding implementation of the Action Plan on the Media – proposed by the Secretariat in reply to Assembly Recommendation 1497 (2001) on freedom of expression and functioning of parliamentary democracy in Ukraine – is also included in the report of the Secretariat’s assistance and information mission to Ukraine (SG/Inf (2001) 27, see in particular Appendix IV). […]
4. The Committee of Ministers will continue to follow the situation in Ukraine as regards honouring of its commitments and implementation of on-going and proposed co-operation activities with the Council of Europe.”
(c) Extracts from Ministers' Deputies 864th meeting, doc. CM/Del/Dec(2003)864, item 2.1.a, of 4 December 2003, Activities for the development and consolidation of democratic stability
“Decisions
The Deputies
[…]
4. in the context of monitoring of obligations and commitments by Ukraine and in order to prepare a full, substantial reply to Parliamentary Assembly Recommendation 1622 (2003), instructed the Secretariat to:
(a) prepare an assessment of the results of co-operation to date, including progress achieved and shortcomings;
(b) work with the Ukrainian authorities to propose a new targeted programme, drawing on the lessons of previous programmes, emphasising desired objectives, benchmarks for progress, time-table to be respected and expected results;
(c) build on and finalise existing proposals for the new European Commission / Council of Europe Joint Initiative for Ukraine, through a new Secretariat information and assistance mission to Ukraine; […]”
(d) Interim Reply of the Committee of Ministers to Parliamentary Assembly Recommendation 1622 (2003) on the honouring of obligations and commitments by Ukraine, adopted on 4 December 2003 at the 864th meeting of the Ministers' Deputies
“1. The Committee of Ministers takes note of Recommendation 1622 (2003) whereby the Parliamentary Assembly informs the Committee of Ministers of its decision to pursue the monitoring procedure in respect of Ukraine, in close co-operation with the Ukrainian delegation, as Ukraine, although it has made notable progress, has not yet honoured all obligations and commitments as a member state of the Council of Europe.
2. With respect to the execution of the Strasbourg Court judgments, referred to in paragraph 3(i) of the recommendation, the Committee of Ministers wishes to inform the Assembly that it is currently supervising execution in a number of cases raising issues relating to the independence of the judiciary and to conditions of detention. In this context, it further notes the on-going discussions between the Ukrainian authorities and Council of Europe experts with respect to a national instrument regarding the execution of the judgments of the European Court of Human Rights.
3. The Committee of Ministers notes that all the other issues raised in Parliamentary Assembly Recommendation 1622 (2003) are addressed by the Action Plan for the Media and/or the European Commission/Council of Europe Joint Programme to Strengthening Democratic Stability in Ukraine, which covers human rights standards (training of judges and police on the European Convention on Human Rights, freedom of expression, the European Social Charter, the Framework Convention on National Minorities and gender equality), the Rule of Law (reform of the judicial system, criminal policies and practices and fight against corruption), local democracy and education for democratic citizenship.
4. It recalls that all these activities have been agreed following a Secretariat Assistance and Information mission sent to Ukraine in August 2001 with a view to addressing concerns raised by the Parliamentary Assembly in its Recommendation 1513 (2001).
5. As regards the Action Plan for the Media, important draft laws on the electronic media in Ukraine have recently been analysed by a Council of Europe expert. Following an exchange of views on 17 October 2003 on the results of this expertise, the Rapporteur Group for Democratic Stability (GR-EDS) recommended that the Ukrainian authorities transmit the expert report to all parties involved, including Ukrainian parliamentarians. Upon the GR-EDS' recommendation, the Committee of Ministers further “asked the Ukrainian authorities to refrain from presenting to parliament for adoption the draft laws on the media which have been submitted for an expertise at the Council of Europe, before the results of this expertise can be discussed and taken into account”. Since then, the Ukrainian authorities have indicated that the Committee for freedom of expression and information of the Ukrainian Parliament has taken into account a large part of the Council of Europe expert's recommendations. A meeting involving representatives of the Ukrainian Parliament and other Ukrainian authorities and the Council of Europe expert was held in Kiev on 1 December 2003 in order to discuss the above-mentioned draft laws and the follow up to be given to the expert's recommendations.
6. As regards co-operation within the Action Plan for the reform of the prosecution system in Ukraine (as part of the European Commission/Council of Europe Joint Programme), the Council of Europe has already provided an expertise of the Framework Act on the Reform of the Prosecution, which was submitted to an ad hoc working group with the President of Ukraine and to respective Committees of the Verkhovna Rada. In this context, a meeting was held in Kyiv on 23 June 2003 between Council of Europe experts, Ukrainian parliamentarians, representatives from the Prosecutor's Office and from Ministries to discuss the reform of the prosecution system in compliance with Council of Europe standards related to democracy and the rule of law.
7. Finally, as regards the overall EC/CoE Joint Programme to Strengthening Democratic Stability in Ukraine, an evaluation of its implementation to date is envisaged in the near future. At the same time, a possible new EC/CoE Joint Initiative for Ukraine is under discussion to provide assistance on many of the issues raised by the Parliamentary Assembly in its Recommendation 1622 (2003).
8. In the light of the above considerations and in order to prepare a full, substantial reply to Parliamentary Assembly Recommendation 1622 (2003), the Committee of Ministers instructs the
Secretariat to:
(a) prepare an assessment of the results of co-operation to date, including progress achieved and shortcomings;
(b) work with the Ukrainian authorities to propose a new targeted programme, drawing on the lessons of previous programmes, emphasising desired objectives, benchmarks for progress, time-table to be respected and expected results;
(c) build on and finalise existing proposals for the new EC/CoE Joint Initiative for Ukraine, through a new Secretariat information and assistance mission to Ukraine.
9. The Committee of Ministers intends to adopt its final reply to Recommendation 1622 (2003), if possible, before the April 2004 part-session of the Assembly, on the basis inter alia of the results of the Secretariat Information and Assistance Mission to Ukraine.”
Secretariat Note: The Ministers’ Deputies are presently preparing their (definitive) reply to Parliamentary Assembly Recommendation 1622 (2003). See, in this connection, documents SG/Inf(2004)12 and Addendum (Secretariat information and assistance mission), on the Secretary General’s Website http://www.coe.int and in http://dsp.coe.int/monitoring.
(e) Extracts from the Ministers' Deputies 881bis meeting, doc. CM/Del/Dec(2004)881bis, item 2.1.a, of 21 April 2004:
“Decisions
The Deputies
1. took note of the oral report of the Chairman of GR-EDS on the Group’s meeting of 20 April 2004;
[With regard to Ukraine,]
2. agreed to come back to the document distributed at their 882nd meeting (in camera, 15 April 2004) of the Ministers’ Deputies, at their 883rd meeting (5 May 2004);
3. invited their Rapporteur Group on Democratic Stability (GR-EDS) to pursue consideration of the follow-up given to the recommendations included in the report of the Secretariat Information and Assistance Mission (SG/Inf(2004)12 [and Addendum]) and to report back in due course.
(iv) With respect to Georgia[8]
(a) 2001
Extract from Ministers’ Deputies 769th meeting, doc. CM/Del/Dec(2001)769, item 2.1a, of 17 October 2001
“Decisions
The Deputies
[…]
2. in the light of Assembly’s Recommendation 1533 (2001) on the honouring of obligations and commitments by Georgia and upon the Secretary General’s proposal, decided to ask the Secretary General to send, at the earliest opportunity, a Secretariat mission, the dates of which would be communicated to the Parliamentary Assembly in good time, to Georgia, by virtue of paragraph 4 of the 1994 Declaration on compliance with commitments accepted by member States, with a view to assisting the Georgian authorities to fulfil their remaining commitments and to providing relevant information to the Committee of Ministers;
[…]
4. decided to resume consideration of this issue following receipt of the report of the Secretariat mission to Georgia;
[…]”
Extracts from Ministers’ Deputies 780th meeting, doc .CM/Del/Dec(2002)769, item 2.5b, of 16 January 2002
“Decision
The Deputies adopted the following reply to Parliamentary Assembly Recommendation 1533 on Honouring of obligations and commitments by Georgia:
“1. The Committee of Ministers recalls its interim reply to Recommendation 1533 (2001) on honouring of obligations and commitments by Georgia (adopted at the 769th meeting, 17 October 2001) and wishes to inform the Assembly that the Secretariat Information and Assistance Mission to Georgia, referred therein, took place from 3 to 5 December 2001. The Secretariat mission report (doc. SG/Inf (2001)45, available on Council of Europe Internet Site: www.coe.int/sg) contains up-dated information on the political context in which the visit took place and on progress in the honouring of commitments undertaken by Georgia when joining the Council of Europe, as well as specific proposals for further action in the framework of Council of Europe co-operation programmes, including innovative working methods.
2. Whilst recognising the progress achieved in important issues, the Committee of Ministers is conscious that much remains to be done by the Georgian authorities, with the assistance of the Council of Europe and other international institutions/organisations, to secure full and sustainable implementation of all the commitments and obligations subscribed by Georgia when joining the Council of Europe.
3. In this context, the Committee of Ministers took note of the main conclusions and proposals for further action drawn up in the Secretariat’s report (pages 4 and 5 of the report) regarding in particular the issues raised in Parliamentary Assembly Recommendation 1533 (2001). Whereas the highest Georgian authorities confirmed once more to the Secretariat Mission, their firm commitment to fulfil all the obligations entered into when joining the Organisation, the Committee of Ministers understands that a substantial additional effort of co-operation should be made by both the competent Georgian authorities and the Council of Europe – as well as other European partner- to ensure that the required reforms will be in line with European norms and standards, in particular the European Convention of Human Rights and the case-law of the Strasbourg Court. For this purpose, it is inter alia indispensable that the various laws or draft laws mentioned in the Secretariat’s report (in particular the Electoral Code and the Code of criminal procedure) be transmitted to the Council of Europe within the indicated time-table for expert appraisal. This law-drafting effort should be accompanied by specific measures, including various forms of training for different staff categories, to secure the proper implementation of the new laws and regulations in everyday life.
4. The Committee of Ministers instructed the Secretariat to take into account the various proposals contained in the Secretariat’s report in the preparation of future Council of Europe bilateral programmes of co-operation with Georgia as well as in the preparation of the relevant part of the European Commission/Council of Europe Joint Programme for South Caucasus to be concluded in a very near future (as well as a possible additional specific EC/CoE Joint Programme for Georgia).
5. Bearing in mind the importance of the reforms to be undertaken or completed, the Committee of Ministers will consider, on the basis of detailed proposals with financial indications to be submitted by the Secretary General, the proposal to increase co-ordination and implementation capacities in the field through the placement of Council of Europe experts on a medium/long term basis in relevant Georgian Ministries and/or by reinforcing the staff of the Council of Europe Information Office in Tbilisi to allow it to provide regular support to the implementation of Council of Europe co-operation programmes.
6. The Committee of Ministers will continue to follow the situation in Georgia as regards honouring of its commitments and implementation of on-going and proposed co-operation activities with the Council of Europe.”
(b) 2002
Extract from Ministers’ Deputies 806th meeting, doc. CM/Del/Dec(2002)806, item 2.1a, of 4 September 2002
“Decisions
The Deputies
1. took note of the report on the visit by the Chair of the Committee of Ministers to the Caucasus
(15-18 July 2002), as it appears in document CM/Inf(2002)36-final; […]
4. concerning Georgia, invited the Secretary General, on the basis of paragraph 4 of 1994 Committee of Ministers Declaration on compliance with commitments,
a. to make contacts and gather information on the situation in Georgia,
b. to review follow-up given to the report of the Chair of the Committee of Ministers [CM/Inf(2002)36-final] and to the recommendations contained in the report of the Secretariat Information and Assistance Mission to Georgia of December 2001 (doc. SG/Inf(2001)45),
c. to report back to the Committee of Ministers”.
(c) 2003
Extract from the Ministers’ Deputies 825th meeting, doc. CM/Del/Dec(2003)825, item 1.3, of 22 January 2003
“Decisions
The Deputies
1. took note of the communication by the Secretary General, as it appears in document SG/Com(2003)825;
2. in this context, took note of the document “Compliance with commitments and obligations: the situation in Georgia” (SG/Inf (2003) 1 and Addendum) and of the proposals made by the Secretary General in this respect;
3. instructed their Rapporteur Group on Democratic Stability (GR-EDS) to examine this question and to report back.”
Secretariat Note: see Section III, B, 4, for more details on specific post-accession monitoring procedures set-up with respect to Georgia.
(v) With respect to Moldova
(a) 2002-2003
Extract from Ministers' Deputies 789th meeting, doc. CM/Del/Dec(2002)789, item 2.5 of 20 March 2002
“Decision
The Deputies, in the light of the proposals contained in document CM(2002)39,decided to invite the Secretary General to send, at the earliest opportunity, a Secretariat Information and Assistance mission, the dates of which would be communicated to the Parliamentary Assembly in good time, to Moldova, by virtue of paragraph 4 of the 1994 Declaration on compliance with commitments accepted by member states, with a view to assisting the Moldovan authorities to fulfil their commitments and to providing relevant information to the Committee of Ministers, as well as identifying possibilities for additional targeted cooperation activities to be implemented with the full support of the Moldovan authorities.”
Secretariat Note: The text of the Secretariat mission report can be found in document SG/Inf(2002)18. See also, in this connection, Parliamentary Assembly Recommendation 1554(2002) and the Secretariat’s analysis of the Moldovan reply to the Secretary General’s request under Article, 52 ECHR (document SG/Inf(2002)20).
(b) Relevant extract from the Ministers’ Deputies reply to Parliamentary Assembly Recommendation 1554 (2002) on the functioning of democratic institutions in Moldova (doc. CM/Del/Dec(2002)808, item 2.4,18 September 2002)
“[…]
5. Notwithstanding some progress in certain areas, the implementation of Moldova’s obligations and commitments vis-à-vis the Council of Europe still gives cause for concern and should continue to be followed closely. This issue was addressed in an exchange of correspondence between the Chairman of the Committee of Ministers and President Voronin in particular as concerns the case of the Metropolitan Church of Bessarabia and the transformation of Teleradio Moldova into an independent public service corporation […]”.
Secretariat Note : further to the Secretariat’s information and assistance mission, a targeted co-operation programme was implemented. An overview of this programme in 2002-2003 can be found in document CM/Inf(2003)29 rev of 10 July 2003. As regards developments between July and December 2003, in the context of co-operation between the Council of Europe and Moldova, see document SG/Inf(2004)46 of 12 January 2004.
(c) 2004
Extract from the Ministers’ Deputies 872nd meeting, doc. CM/Del/Dec(2004)872, item 2.1a, of 12 February 2004
“Decisions
The Deputies
[…]
3. instructed the Secretariat, in consultation with the Moldovan authorities, on the occasion of the tripartite meeting of the Steering Committee for the Joint Programme Council of Europe / European Commission, to take stock of outstanding issues and to consider future forms of co-operation with the Council of Europe”.
F. Use of paragraphs 5 and 6 of the 1995 Procedure for implementing the 1994 Declaration on Compliance with Commitments
Paragraph 5 and 6 of the Declaration were used only once by the Secretary General in early 2002. Recourse to this procedure was made with regard to, in particular, the situation of the freedom of expression and information in Moldova. The Ministers’ Deputies held urgent discussions on this subject in April 2002 (see doc. CM/Monitor(2002)7).
II. THEMATIC MONITORING
A. General Remarks
Thematic monitoring has evolved considerably since it commenced in 1996. It consists of a four-stage sequence procedure (overview, debate, conclusions, follow-up) based on the 1995 Procedure for implementing the Declaration of 10 November 1994 on compliance with commitments accepted by member States of the Council of Europe (The text can be found on page 5, above; I, B). It was streamlined in 2002: see Vade-mecum of the thematic monitoring procedure, document Monitor/Inf(2003)2. In early 2004, the Ministers’ Deputies set up an ad hoc working group (GT-MON) to elaborate proposals to obtain greater efficiency with respect to thematic monitoring.
B. Outline of the Committee of Ministers' thematic monitoring procedure (see doc. Monitor/Inf(2003)2)
Selection of theme(Committee of Ministers) |
PREPARATORY PHASE |
|
First stage: factual overview (Monitoring Department of the Directorate of Strategic Planning) |
|
- circulation of short questionnaire - replies to questions (maximum of 1,000 words)[9] - "comments” by the Secretariat[10] - circulation of the overview |
|
Second stage: debate (Committee of Ministers) - debate at one or more sessions - summing-up by the Chairman of the Ministers' Deputies |
|
|
OPERATIONAL PHASE |
|
Third stage: conclusions (Committee of Ministers) - conclusions of the Committee of Ministers |
|
Fourth stage: follow-up (Committee of Ministers) |
|
- adjustments to intergovernmental work and/or - review of Council of Europe co-operation programmes, plus where appropriate, - implementation of one or more provisions of paragraph 4 of the Declaration of 10 November 1994 - evaluation and possible termination of the procedure |
C. Overview of themes adopted by the Committee of Ministers
1. Theme No. 1: Freedom of expression and information
(i) Introductory note
The overview drawn up by the Secretary General’s Monitoring Unit (now Monitoring Department, DSP) was submitted to the Committee of Ministers in September 1996 and debate took place in 1997. Conclusions and follow-up action were agreed upon by the Ministers' Deputies at the end of December 1997. In June 2000 and 2001, the Committee of Ministers considered that “specific action” was required and requested the Secretary General to make contacts and collect information on this theme. In camera discussion on this theme took place on 15 April 2003. The Ministers’ Deputies are to resume consideration of this subject at their 3rd in camera meeting on 21 October 2004 (see Part I, E, 2 (a) for more details on this subject).
(ii) Decisions
(a) 1997
Extract from Ministers' Deputies 609th bis meeting, doc. CM/Del/Dec(97)609bis,
item 1.5a, of 26-27 November 1997*
“1. Before summing-up the discussion on 20-21 November 1997, the Chairman wishes to recall two important premises upon which the Committee of Ministers monitoring procedure is based:
(i) As was recently emphasised by the Heads of State and Government at the Second Summit held in Strasbourg on 10-11 October 1997, member States are resolved to ensure that commitments accepted are effectively honoured, on the basis of a confidential, constructive, non-discriminatory dialogue, taking into account the monitoring procedures of the Parliamentary Assembly.
(ii) That this Committee of Ministers monitoring exercise must lead to concrete results within the readjusted four-stage sequence procedure adopted in April 1997: overview, debate, conclusions and follow-up.
I - FREEDOM OF EXPRESSION AND INFORMATION
2. Progress has been made on this subject. Designated back in April 1996, as an "area of concern", this theme has been analysed thoroughly on the basis of two overviews (in March 1996 and again in September 1996), a debate in October 1996 and during the present meeting, supplemented by two seminars held in Budapest, on 1-2 September 1997 and Strasbourg on 13-14 October 1997, on the topic of "freedom of expression and restrictions included in the Penal Code and other texts" (see doc. Monitor/Inf(97)3 for more details).
3. Conclusions and follow-up action with regard to the "area of concern" were identified at our present meeting (see paras 5 and 6 below).
4. At this meeting note was taken of an interim report which a team of independent experts had presented to the Secretary General subsequent to the Budapest and Strasbourg seminars referred to above; the Deputies also held a hearing on 20 November 1997 with the Chairman of the said team of independent experts, whose report provided an opportunity for a frank discussion on a number of issues.
The final report of the team of independent experts is to be forwarded to the Ministers' Deputies, for information, in December 1997. In this respect, several Delegations expressed their disagreement with certain points of the report as well as their readiness to transmit to the experts corrections and/or supplementary information which the independent experts may wish to take into account prior to the issue of the final version of their report. It was agreed that transmission of this supplementary material would be made before the end of November 1997, via the Secretary General's Monitoring Unit, so that account be taken of it.
It was also stressed, at the meeting, that the report to be presented by the team of independent experts would be considered as conclusions reached and proposals made by the experts acting under their own responsibility; their views will not necessarily reflect those held by certain Delegations or by the Minister's Deputies as such.
5. The Ministers' Deputies concluded discussions on this subject and agreed that follow-up action would consist of:
- transmission of the proceedings of the two seminars (doc. Monitor/Inf(97)3), together with the final version of the independent experts report and written comments provided by delegations, to the CDMM and CDDH, on the understanding that subjects considered therein as "areas of concern" would be duly taken into account in inter-governmental work undertaken by both these steering committees (and bodies working under their authority);
- requesting the Secretariat to make proposals to the GREL [now GR-EDS] concerning these "areas of concern", as reflected during the discussion, so that co-operation and assistance programmes are appropriately re-adjusted in order to fully reflect the findings. In this connection, specific proposals should be made concerning the training of, inter alia, civil servants, journalists and the legal profession (lawyers, judges, prosecutors);
- inviting delegations to provide, at forthcoming monitoring meetings in 1998, appropriate information and/or clarification on questions having been addressed in the discussions, with a view to keeping them under review.
6. The above conclusions and follow-up action must be seen in the context of an on-going process, with the Steering Committees and GREL [now GR-EDS] reporting back to the Ministers' Deputies at regular intervals on action taken and progress achieved.
Also, the above monitoring procedure does not preclude other possible action which could be taken, as envisaged, for example, in paragraph 4 of the Committee of Ministers' Declaration of 10 November 1994 on compliance with commitments accepted by member States of the Council of Europe, or the possibility for the Secretary General to make use of powers vested in him by virtue of Article 57 [now Article 52] of the European Convention on Human Rights or as stipulated in paragraph 7 of the Committee of Ministers Declaration on the Protection of Journalists in Situations of Conflict and Tension (3 May 1996).”
(b) 1999
Extract from Ministers' Deputies 674th meeting, doc. CM/Del/Dec(99)674, item 2.5b, of 8-9 June 1999
“Decisions
In the light of the results of their 673rd (in camera) meeting (1 June 1999), and in particular of the provisional Chairman's summing-up, the Deputies:
1. concerning the theme "Freedom of expression and information":
a. requested the Secretariat to assess the way in which intergovernmental and ADACS programmes had been re-adjusted fully to reflect priorities, as highlighted in the Committee of Ministers monitoring procedure;
b. invited Delegations, if they so wished, to provide to the Secretary General's Monitoring Unit, not later than February 2000, information indicating the extent to which the monitoring procedure had led to concrete results;
c. instructed the Secretariat to prepare, by mid-2000, a background paper so as to permit the Deputies to carry out stocktaking of progress made on the theme of "freedom of expression and information";
d. decided to carry out a stock-taking on the theme "freedom of expression and information" at one of its monitoring meetings in 2000.”
(c) 2000-2004
Since 2000, the Ministers’ Deputies considered that a “specific action” by virtue of paragraph 4 of the 1994 Declaration was required with respect to “freedom of expression and information”: see, in this connection, Part I, E, 2 (i). This subject will again be discussed by the Deputies at their 3rd in camera meeting on 21 October 2004.
2. Theme No. 2: Functioning and protection of democratic institutions, including matters relating to political parties and free elections
(i) Introductory note
The overview drawn up by the Secretary General’s Monitoring Unit (now Monitoring Department, DSP) was submitted to the Committee of Ministers in February 1997. The second stage, consisting of debate, took place between February 1997 and March 1999. Conclusions and follow-up action were agreed upon by the Ministers' Deputies in November 1999. In the meantime, the Deputies decided to forward a communication to the Parliamentary Assembly, in application of paragraph 4 of the 1994 Declaration, inviting it to undertake an examination of issues surrounding the functioning (and banning) of political parties, including strategies for enhancing the democratic functioning of parliament. As concerns texts then adopted by the Assembly on this theme, notably Resolution 1308 (2002) on restrictions on political parties in the Council of Europe member states, see Part I, E of the present document.
(ii) Decisions
Extract from Ministers' Deputies 683rd meeting, doc. CM/Del/Dec(99)683, item 2.2, of 15 and 17 November 1999
“Decisions
The Deputies, in the light of the information contained in document CM/Monitor(99)16,
1. decided:
a. to instruct the Secretariat to prepare the text of a draft communication to be forwarded to the Parliamentary Assembly in accordance with paragraph 4 of the 1994 Declaration on compliance with commitments accepted by member States of the Council of Europe, inviting the Parliamentary Assembly to undertake an examination of issues surrounding the functioning (and banning) of political parties, including strategies for enhancing the democratic functioning of parliament;
b. to invite its Rapporteur Group on Human Rights (GR-H) to consider the advisability of preparing a text on the functioning of democratic institutions and to report back;
c. to invite its Rapporteur on Equality to consider the advisability of instructing the Steering Committee for Equality between Women and Men (CDEG) to prepare a text on balanced representation of men and women in political and public life and to report back;
d. to invite its Rapporteur on Non-Governmental Organisations to consider the advisability of preparing a text to provide for an appropriate legal framework for the operation of non-governmental organisations and to report back;
e. to urge member States, which had not already done so, to sign and ratify the European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations (Convention 124) […].”
3. Theme No. 3: Functioning of the judicial system
(i) Introductory note
The overview drawn up by the Secretary General’s Monitoring Unit (now Monitoring Department, DSP) was submitted to the Committee of Ministers in February 1998. Debate on this theme, in the light of the overview, was completed in April 1998 and conclusions and follow-up action were agreed upon by the Ministers’ Deputies in September 1998 and in January 2000. Upon the proposal of the Chairman of the Ministers’ Deputies, documents on this theme (CM/Monitor(2001)8, Parts I, II, III and IV) were made available to the Steering Committee for Human Rights (CDDH), the European Committee on Legal Co-operation (CDCJ) and the European Committee on Crime Problems (CDPC).
In 2000, the Committee of Ministers set up an advisory body, the Consultative Council of European Judges (CCJE), to provide opinions on general questions concerning the independence, impartiality and competence of judges. Subsequently, on 18 September 2002, the Committee of Ministers decided to set up a European Commission for the Efficiency of Justice (CEPEJ): see Resolution Res(2002)12.
(ii) Decisions
Extract from Ministers' Deputies 693rd meeting, doc. CM/Del/Dec(2000)693, item 2.3a,
of 12 January 2000
“Decisions
In the light of the information contained in document CM/Monitor(99)15 [now document CM/Monitor(99)15 revised, available on Internet Site: www.coe.int/cm and http://dsp.coe.int/monitoring], the Deputies decided to:
1. instruct the European Committee on Legal Co-operation (CDCJ) and, in particular, its Committee of Experts on Efficiency of Justice (CJ-EJ) in co-operation with the European Committee on Crime Problems (CDPC), to examine, within their respective terms of reference, particularly in the light of the case-law of the European Court of Human Rights, the situation in member states with respect to the following issues:
i. access to a judge within four days of detention and regular subsequent control by a judge of the lawfulness of detention;
ii. access to a judge by persons detained in psychiatric institutions;
iii. adequacy of judicial control with respect to deprivation of liberty;
iv. the possibility and scope of judicial review of administrative decisions in member states, and
to make recommendations to the Committee of Ministers on these four issues on a non-discriminatory basis;
2. instruct the Steering Committee for Human Rights (CDDH) to examine, within its terms of reference, particularly in the light of the case-law of the European Court of Human Rights, the situation in member states with respect to the following issues:
i. fairness of prosecution proceedings in member states;
ii. court proceedings before military courts in member states, and
to make recommendations to the Committee of Ministers on these two issues on a non-discriminatory basis;
3. further reinforce and give priority to programmes aimed at training judges and prosecutors with respect to Council of Europe standards pertaining to human rights and the functioning of the judicial system.”
Secretariat Note: For information concerning follow-up action taken by the CDCJ, CDPC and CDDH, consult “progress reports” which can be consulted on: http://dsp.coe.int/monitoring (Main Monitoring Documents).
4. Theme No. 4: Local democracy
(i) Introductory note
The overview was drawn up by the Secretary General’s Monitoring Unit (now Monitoring Department, DSP) in June 1998. The Committee of Ministers' debate took place in October 1998; conclusions and follow-up action were agreed upon by the Ministers’ Deputies in November 1998. A stocktaking on this theme took place in early 2001. The country-by-country survey on progress achieved within the monitoring procedure on local democracy, which was undertaken by Mr Gérard Marcou, Professor of Public Law and Director of the Groupement de Recherche sur l'Administration publique en Europe, was communicated to the participants of the International Conference on the theme “Local and regional democracy at the dawn of the 21st century” organised by the Latvian Chairmanship of the Committee of Ministers in Riga on 3 and 4 May 2001 (see document CM/Monitor(2001)3-rev. 2 and Addendum rev. 2, available on the Committee of Ministers’ Internet Site: www.coe.int/cm and on http://dsp.coe.int/monitoring (Main Monitoring Documents). Examination of this theme is scheduled for the Ministers’ Deputies 2nd in camera meeting in 2004, on 29 June 2004.
(ii) Decisions
Extract from Ministers' Deputies 750th meeting, doc. CM/Del/Dec(2001)750, item 2.9, of 18 April 2001
“Decisions
The Deputies
1. adopted the following decision:
“1. The Committee of Ministers, convinced that local democracy is a vital component of political democracy as a whole:
a. acknowledges the importance of action to develop and to strengthen local and regional democracy, which will call for a prolonged effort, and does not underestimate the complexity of this work;
b. reminds those member states which have ratified the European Charter of Local Self-Government of their commitment fully to comply with its principles, reminds all member states of their commitment to act upon the recommendations adopted by the Committee of Ministers in this field[11], and encourages them to take into consideration the relevant recommendations of the CLRAE[12];
c. invites governments to take account of the comments and recommendations mentioned in the Chairman's summing-up when deciding on their legislative and political priorities, and to base any requests for assistance on these;
d. instructs the Secretariat:
- to draw up, in the light of these requests, specific proposals for action to be implemented in 2002 and 2003 within the framework of the inter-governmental work programme in order to help the member states where problems have been identified to resolve the difficulties encountered, and
- to give thought to multilateral initiatives on specific matters of mutual interest to several states, which could be included in the annual programme;
- to prepare a detailed comparative study of the extent and nature of local authorities’ responsibilities in Council of Europe member states;
e. instructs the Steering Committee for Local and Regional Democracy (CDLR):
- to prepare a detailed comparative study of the extent and nature of local authorities’ responsibilities in Council of Europe member states;
- to verify whether it would be helpful, in respect of certain specific problems and in the light of precise decentralisation targets to be achieved, to draw up standard solutions comprising several options, each solution consisting of a coherent package of practical measures and being in conformity with both the European Charter of Local Self-Government and the recommendations of the Committee of Ministers in this sphere;
- to undertake other activities which might help to solve the problems encountered, and particularly a targeted updating of its previous work in fields such as the status of local elected representatives and local authority staff recruitment and service conditions;
f. encourages the Congress of Local and Regional Authorities of Europe (CLRAE):
- to continue its efforts to implement Statutory Resolution (2001) 1, especially in respect of the preparation of the reports on the situation of local and regional democracy in member states (monitoring reports) and the activities relating to the political supervision of application of the European Charter of Local Self-Government;
- to continue to regularly convey to the Committee of Ministers the results of the aforementioned activities.
2. The Committee of Ministers is aware that, in order for it to be effective and to have a more significant impact on the development of the situation in member states, Council of Europe activity in the local democracy sphere requires adequate budgetary and human resources. In addition to the extra resources which member states might make available to the Council for this purpose, the Secretariat could seek financing from the European Union within the framework of current joint programmes or future ones to be negotiated.
3. The Committee of Ministers welcomes the Latvian Chairmanship’s initiative of holding an international conference in Riga on 3 and 4 May 2001 on the theme of “Local and regional democracy at the dawn of the 21st century”, and invites it to grasp this opportunity to fuel the debate on this important subject and to put forward proposals for action which the Committee of Ministers could examine at a forthcoming meeting before the end of the year 2001.
4. The Committee of Ministers decides to suspend consideration of this theme for two or three years.”
2. agreed to communicate document CM/Monitor(2001)3-rev and CM/Monitor(2001)3-Add to the participants of the International Conference on the theme “Local and regional democracy at the dawn of the 21st century” which the Latvian Chairmanship of the Committee of Ministers is organising in Riga on 3 and 4 May 2001, on the understanding that the views expressed therein are those of the expert commissioned for the said survey and that they do not necessarily represent the views of the Committee of Ministers.”
Extract from Ministers' Deputies 882nd meeting, doc. CM/Del/Dec(2004)882, item 1.3, of 15 April 2004
“Decisions
The Deputies, pending the outcome of the work on the reform of thematic monitoring,
1. decided to postpone to their 889th meeting (in camera, 29 June 2004):
i. discussions on proposals to close / suspend monitoring themes dealt with by the Committee of Ministers;
[…]
2. consequently agreed to deal at their 889th meeting (in camera, 29 June 2004), with the theme “local democracy” (see CM/Del/Dec(2001)750, item 2.9);
[…]”
5. Theme No. 5: Capital punishment
(i) Introductory note
An overview was drawn up by the Secretary General's Monitoring Unit (now Monitoring Department, DSP) in April 1999. The Committee of Ministers' debate took place in June 1999, in November 1999, in February, June and October 2000. In November 2000, the Committee of Ministers adopted a Declaration “For a European Death Penalty-Free Area”. This subject is now considered by the Ministers’ Deputies at 6-month intervals and will remain on the Deputies agenda until the death penalty has been abolished de jure in all member States.
Except the Russian Federation, all Council of Europe member states have abolished capital punishment in peacetime and ratified Protocol No. 6 to the European Convention on Human Rights. 24 member states also decided to abolish death penalty in all circumstances and have ratified Protocol No. 13 to the European Convention on Human Rights.
(ii) Decisions
(a) Extract from Ministers' Deputies 699th meeting, doc. CM/Del/Dec(2000)699, item 2.4e, of 16 and 24 February 2000
“Decision
The Deputies decided to declassify documents on the theme of capital punishment which have not yet been declassified, for the information of the Parliamentary Assembly[13], and decided to resume consideration of this item at their 712th meeting (in camera, 5‑6 June 2000).”
(b) Extract from texts adopted at 107th session of the Committee of Ministers, Strasbourg, 9 November 2000
“DECLARATION
‘FOR A EUROPEAN DEATH PENALTY-FREE AREA’
[…]
WE, THE FOREIGN MINISTERS OF THE COUNCIL OF EUROPE’S MEMBER STATES, ASSEMBLED IN STRASBOURG FOR OUR 107TH SESSION,
[…]
7. Welcoming the fact that 39 member states, i.e. 11 more than at the time of the Second Summit [of 1997], have abolished the death penalty and noting that two member states have been observing for a long time a moratorium on executions,
DECLARE AS FOLLOWS:
The territory of the 41 member states of the Council of Europe thus constitutes an area in which the death penalty is not carried out;
This is a step towards our common goal of a death penalty-free area to be achieved by the abolition of the death penalty in all member states as called for in […] Resolution No. 2 of the Rome European Ministerial Conference on Human Rights [held in November 2000].”
(c) Extract from Ministers’ Deputies 769th meeting, doc. CM/Del/Dec(2001)769,
item 4.4, of 17th October 2001
“Decisions
The Deputies
1. took note with interest of the information provided by the delegations of the three member states which have not yet abolished the death penalty, as well as the reactions of other delegations;
2. called on the member states concerned to accelerate the process towards abolition of the death penalty allowing a speedy ratification of Protocol No. 6 to the European Convention on Human Rights, whilst respecting strictly the moratoria on executions in the meantime;
3. decided to resume consideration of this item at their next monitoring meeting (10 and 11 December 2001) based on written information to be provided by 1 December 2001 by the member states concerned;
4. decided to resume consideration of the item thereafter at intervals of 6 months until Europe has become a de jure death penalty-free zone.”
(d) Extract from Ministers’ Deputies 767th meeting, doc. CM/Del/Dec(2001)767, item 2.1, of 11 December 2001
[...]
Decisions
The Deputies
[…]
2. agreed to revert to iv, “capital punishment”, in the light of information provided by the three member states which have not yet abolished the death penalty.”
Secretariat Note: since 2001, the Committee of Ministers has continued its periodic discussions on the abolition of the death penalty: see in particular documents CM/Del/Dec(2002)806/2.1b, of 4th September 2001, CM/Del/Dec(2003)839/4.3 of 7th May 2003 and CM/Del/Dec(2002)850 of 3rd September 2003.
6. Theme No. 6: Police and security forces
(i) Introductory note
The overview was drawn up in August/September 1999. Debate within the Committee of Ministers took place in November 1999 and in February 2000. Conclusions were agreed upon by the Ministers' Deputies in February and in June 2000.
In September 2001, the Committee of Ministers adopted a European Code of Police Ethics (Recommendation Rec(2001)10) and decided to set up an advisory body (a “Council for Police Matters”) to assist the Steering Committee on Crime Problems (CDPC) in reviewing the implementation of the said Code and other relevant Council of Europe instruments.
(ii) Decisions
Extract from Ministers' Deputies 712th meeting, doc. CM/Del/Dec(2000)712, item 2.3, of 5 and 6 June 2000
“Decisions
The Deputies, in the light of information contained in document CM/Monitor(2000)11,
1. requested the Secretariat to transmit document CM/Monitor(2000)11 to the European Committee on Crime Problems (CDPC), for its information;
2. invited the CDPC to present proposals to the Committee of Ministers on this theme, in particular relating to the proposals made by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), as indicated in document CM/Monitor(2000)11;
3. agreed to resume consideration of this item at their 723rd meeting (in camera) (2‑3 October 2000).”
Extract from Ministers' Deputies 765th meeting, doc. CM/Del/Dec(2001)765, item 10.3h of 10 September 2001
“Decisions
The Deputies
1. took note of the proposed follow-up to the Committee of Ministers’ monitoring of the functioning of police and security forces [see doc. CM (2001)131 Addendum VI];
2. instructed the Secretariat, in conjunction with the CDPC, to provide them with detailed, accurate information with a view to implementation of these proposals under the Organisation’s Programme of activities.”
Secretariat Note: For information concerning follow-up action taken by the CDCJ, CDPC and CDDH, consult “progress reports” which can be consulted on: http://dsp.coe.int/monitoring (Main Monitoring Documents).
7. Theme No. 7: Effectiveness of judicial remedies
(i) Introductory note
An overview was drawn-up by the Monitoring Department, DSP, in October/November 2001. Debate within the Committee of Ministers took place in December 2001. Conclusions were agreed upon by the Ministers’ Deputies in December 2001 and March 2002. Consideration of this theme was thereupon suspended for a period of at least two years.
In September 2002, the Committee of Ministers decided to set up a European Commission for the Efficiency of Justice (CEPEJ): Resolution Res(2002)12 (see also, in this connection, theme 3 “functioning of the judicial system”, above).
(ii) Decisions
(a) Extract from the Ministers’ Deputies 767th meeting, doc. CM/Del/Dec(2001)767, item 2.2, 11 December 2001
“Decisions
The Deputies
1. took note that any comment or amendment by delegations to CM/Monitor(2001)14-Part II should be submitted to the Secretariat by 19 December 2001;
2. agreed to declassify Part I of CM/Monitor(2001)14 [available on the Internet Site: www.coe.int/cm];
3. decided to return to this matter at one of their forthcoming meetings in the light of the Chairman’s summing up to be issued in January 2002.”
(b) Extract from the Ministers’ Deputies 789th meeting, doc. CM/Del/Dec(2002)789, item 2.3a, 20 March 2002
“Decisions
1. As regards the theme of “effectiveness of judicial remedies”, in the light of the information contained in documents CM/Monitor(2001)13 (national contributions), CM/Monitor(2001)14, Part I (general comments) and Part II rev. 2 (country-by-country comments), as well as in other related CM/Monitor documents, the results of their 767th meeting (in camera) (11 December 2001) and the Chairman’s summing-up (CM/Monitor(2002)1-rev.), the Deputies adopted the following decisions:
i. as regards police custody and detention on remand,
a. instructed the European Committee on Crime Problems (CDPC) to set up a select committee of experts to prepare, as from 2003, in close co-operation with the Conference of Prosecutors General of Europe, recommendations with a view to updating Recommendation R(80)11 on custody pending trial;
b. invited the Steering Committee for Human Rights (CDDH) to take into account the information contained in the above-mentioned documents in the framework of its on-going work on the preparation of the guidelines on terrorism;
ii. as regards detention of foreigners, including asylum seekers, invited the Ad Hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR) to take into account the information contained in the above-mentioned documents in the framework of its on-going work on the detention of asylum seekers, including length and judicial control of such detention;
iii. as regards placement of persons of unsound mind in psychiatric institutions, invited the Working Party of the Steering Committee on Bioethics (CDBI) and the European Committee on Legal Co-operation (CDCJ), through its Committee of Experts on Efficiency of Justice (CJ-EJ), to take into account the information contained in the above-mentioned documents in the framework of the preparation, by the CDBI, of guidelines on the “protection of the human rights and dignity of people suffering from mental disorder, especially those placed as involuntary patients in a psychiatric establishment” and, by the CJ-EJ, of a report and recommendations on the situation in member states concerning access to a judge by persons placed in psychiatric institutions;
iv. as regards length of proceedings and the existence of an effective remedy at national level, invited the CDDH, through its Committee of Experts for the Improvement of Procedures for the Protection of Human Rights (DH-PR), to take into account the information contained in the above-mentioned documents in the framework of its on-going work on examining “ways and means of assisting member states with a view to a better implementation of the Convention in their domestic law and practice, including the provision of effective remedies”, as a follow-up to the 2000 Rome Ministerial Conference on Human Rights;
v. as regards length of proceedings and execution of judicial decisions, invited the CDCJ, and in particular its Committee of Experts on Efficiency of Justice (CJ-EJ), to take into account the information contained in the above-mentioned documents in the framework of the on-going negotiations for the creation of an Agreement for the Efficiency of Justice (CEPEJ), as a follow-up to the 23d Conference of European Ministers of Justice (London, June 2000);
vi. for the purpose of implementing decisions i. to v. (above), requested the Secretariat to transmit documents CM/Monitor(2001)13, CM/Monitor(2001)14, Part I and Part II rev.2, as well as other related CM/Monitor documents (containing national contributions or supplementary information provided by member states) to the CDCJ, CDDH, CDPC, CDBI and the CAHAR, as well as, for information, to the European Court of Human Rights, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the Human Rights Commissioner;[14]
vii. encouraged the Secretariat to help develop and/or readjust various Council of Europe co-operation activities in order to assist member states to resolve difficulties encountered and implement measures taken or envisaged in this regard (see Appendices I & II);
viii. agreed to suspend consideration of this theme for at least two years.
2. took note of the Secretariat’s progress reports (CM/Monitor(2001)15) concerning other monitoring themes under consideration.”
Appendix I: Chart summarising the main issues with respect to the theme of “effectiveness of judicial remedies”
|
Council of Europe member States |
Police custody |
Detention on remand |
Detention under special legislation |
Detention of foreigners |
Other forms of deprivation of liberty |
Length of proceedings |
Execution of Judicial decisions |
||||||||||||||
|
Length |
Absence of prompt/ automatic judicial control |
Length |
Judicial control |
Isolation |
Lack of or failure to use bail |
Asylum seekers |
Immigrants |
“Administrative” detention or custody |
Persons of unsound mind |
Alcoholics, drug addicts, vagabonds and others |
Civil |
Penal |
Admin. |
Civil |
Penal |
Admin. |
|||||
|
Albania |
X |
X |
X |
x |
|||||||||||||||||
|
Andorra |
X |
x(foreign) |
|||||||||||||||||||
|
Armenia |
X |
X |
X |
X |
X |
X |
|||||||||||||||
|
Austria |
X |
x |
|||||||||||||||||||
|
Azerbaijan |
X |
x |
|||||||||||||||||||
|
Belgium |
X |
X |
X |
X |
|||||||||||||||||
|
Bulgaria |
X |
X |
X |
X |
x |
||||||||||||||||
|
Croatia |
X |
X |
X |
||||||||||||||||||
|
Cyprus |
x |
x |
X |
||||||||||||||||||
|
Czech Rep. |
X |
X |
X |
X |
x |
||||||||||||||||
|
Denmark |
X |
X |
|||||||||||||||||||
|
Estonia |
X |
x |
|||||||||||||||||||
|
Finland |
X |
X |
X |
||||||||||||||||||
|
France |
x |
x |
|||||||||||||||||||
|
Georgia |
X |
X |
X |
X |
X |
||||||||||||||||
|
Germany |
X |
X |
x |
x |
|||||||||||||||||
|
Greece |
X |
X |
X |
X |
X |
||||||||||||||||
|
Hungary |
X |
X |
X |
x |
|||||||||||||||||
|
Iceland |
|||||||||||||||||||||
|
Ireland |
X[15] |
X |
X |
||||||||||||||||||
|
Italy |
X[16] |
X |
X |
||||||||||||||||||
|
Latvia |
X |
x |
x |
||||||||||||||||||
|
Liechtenstein |
|||||||||||||||||||||
|
Lithuania |
X |
X |
|||||||||||||||||||
|
Luxembourg |
X |
x |
|||||||||||||||||||
|
Malta |
X |
||||||||||||||||||||
|
Moldova |
X |
X |
X |
X |
X |
X |
X |
||||||||||||||
|
The Netherlands |
X |
X |
|||||||||||||||||||
|
Norway |
X |
X |
|||||||||||||||||||
|
Poland |
X |
X |
X[17] |
X |
x |
||||||||||||||||
|
Portugal |
X |
||||||||||||||||||||
|
Romania |
X |
X |
X |
X |
x |
||||||||||||||||
|
Russian Federation |
X |
X[18] |
X |
X |
X |
X |
X |
||||||||||||||
|
San Marino |
|||||||||||||||||||||
|
Slovak Rep. |
X |
X |
|||||||||||||||||||
|
Slovenia |
X |
X |
|||||||||||||||||||
|
Spain |
X[19] |
x[20] |
|||||||||||||||||||
|
Sweden |
|||||||||||||||||||||
|
Switzerland |
X |
X |
X |
||||||||||||||||||
|
‘The former Yugoslav Republic of Macedonia’ |
X |
x |
x |
||||||||||||||||||
|
Turkey |
X |
X |
x6 |
||||||||||||||||||
|
Ukraine |
X |
X |
X |
X |
x |
||||||||||||||||
|
United Kingdom |
X[21] |
X |
X |
X |
|||||||||||||||||
Appendix II: Chart summarising principal positive developments with respect to the theme of “effectiveness of judicial remedies”
|
CoE member States |
Principal positive developments |
|
Albania |
Establishment of the Court Execution Office; adoption of a Code of Ethics for Judges; amendments to the Execution chapter of the Code of Civil Procedure; preparatory work on a Code of Ethics for the Bailiff’s Office; draft amendments to the 1993 law on property restitution |
|
Andorra |
Proposals for reviewing the judicial system |
|
Armenia |
Entry into force of a new Code of Criminal Procedure |
|
Austria |
Programme providing for the creation of Regional Administrative Courts |
|
Azerbaijan |
Entry into force of a new Code of Criminal Procedure; entry into force of a new Code of Execution of Punishment; draft Law on Execution of Decisions of Courts and Other Bodies |
|
Belgium |
Structural measures planned so as to reduce backlog in civil cases, including a motion (tabled on 14.9.2000) recommending i.a. the creation of a trial-preparation judge’s post (“juge de la mise en état”) and generalisation of the use of written proceedings; elaboration by the Government of a draft law re-examining the role of judges, lawyers and parties in order to accelerate and simplify proceedings; introduction of the immediate appearance procedure before misdemeanours courts |
|
Bulgaria |
Amendments to the Code of Criminal Procedure following ECourtHR’s judgments; elaboration of a new draft Public Health Act; amendments to the Aliens Act introduction of the remedy of “complaint for delay” in civil proceedings |
|
Croatia |
Constitutional amendments (November 2000, March 2001); new Constitutional Law on the Constitutional Court (September 1999); entry into force of a New Code of Criminal Procedure (1.1.1998); reform of the Law on Court (December 2000); draft amendments aimed at accelerating court proceedings |
|
Cyprus |
Decision of the Council of Ministers of 22.3.2001 (following the Egmez judgment and in the light of the CPT report) simplifying the Attorney-General’s power to commence investigation of alleged ill-treatment by the police; a range of measures adopted with a view to reducing delays in civil and administrative matters; changes introduced to the Civil Procedure Rules and other measures taken with a view to improving and expediting execution of judgments |
|
Czech Republic |
Amendments to the Code of Criminal Procedure setting maximum time-limits for detention on remand; measures likely to shorten the length of extradition custody; amendments to the Code of Civil Procedure to reduce length of trials; measures taken to improve the enforcement of civil judgments, including establishment of the Court Executors’ Office |
|
Denmark |
Measures taken and measures proposed for expediting civil court proceedings and enforcement of judgments |
|
Estonia |
Measures taken to accelerate court proceedings; draft amendments to the Code of Criminal Procedure |
|
Finland |
Ongoing reform of the Execution Act; introduction of a national electronic information system at the beginning of 2003; Amendment to the Act on the Enforcement of Sentences, with effect as of 1.8.2001, granting prisoners the right to appeal against any decision on disciplinary measures to a district court; preparation of a Government Bill on issues regarding imprisonment and detention, to be submitted to Parliament in May 2002; discussion in Parliament of a Government Bill concerning the treatment of detained foreigners and specific places of detention for foreigners as well as amendments to the Aliens Act (scheduled to enter into force in early 2002); submission to Parliament of two Government Bills aimed at improving civil law proceedings and proceedings before the Court of Appeal |
|
France |
The law of 16.6.2000 strengthening protection of the presumption of innocence and detainees’ rights concerning police custody and investigations by the judicial police; action plan for justice, intended to increase the number of judges; laws of 28.12.1998 and of 29.6.1999 on criminal cases (criminal mediation), decree N°98-1231 of 28.12.1998 on civil cases (on deadlines for expert reports) and decree N° 2001-512 of 14 .6.2001 (on legal aid); law N° 2000-597 of 30.6.2000 and its implementing decree of 22.11.2000, on urgent applications (“référé”) before the administrative courts |
|
Georgia |
Judicial reform; measures taken to improve execution of judicial decisions |
|
Germany |
Reform of the civil procedure to enter into force on 1.1.2002; improvement of the Federal Constitutional Court’s caseload |
|
Greece |
New legislation on the entry and residence of foreigners and subsequent release of illegal immigrants on humanitarian grounds; entry into service of new detention centres for aliens; constitutional and legislative amendments regarding the right to compensation to persons detained (on remand or after conviction) following their final acquittal and providing for the re-opening of criminal proceedings following a judgment by the ECourtHR finding a violation of the ECHR; constitutional amendments and new legislation on the acceleration of proceedings before the civil courts; constitutional amendments and preparation of legislation aimed at improving execution of judicial decisions i.a. by providing the possibility of compulsory execution against the state, local authorities and public-law corporations |
|
Hungary |
New Law on Criminal Procedure; elaboration of a long-term policy for the improvement of the prison system; legislative measures to speed-up civil and administrative proceedings; elaboration of new judicial remedies in case of excessive length of civil proceedings; amendments to the Law on Execution |
|
Iceland |
Shortening of the duration of proceedings in civil and criminal matters |
|
Ireland |
Setting-up of a Human Rights Commission; decision to incorporate the European Convention of Human Rights; setting-up of a Committee to review the Offences Against the State legislation; strategic plan launched by the Courts Service at the end of 2000 |
|
Italy |
Measures adopted or envisaged in the context of the reform process of the judiciary and commitment made by the Italian authorities to remedy the situation regarding the length of judicial proceedings |
|
Latvia |
Adoption of the Law on Civil Procedure; draft Law on Criminal Procedure; draft Law on Sworn Court Bailiffs under preparation |
|
Liechtenstein |
New law on judicial co-operation, which entered into force on 6.11.2000; increase in staff numbers in all areas of the judicial system |
|
Lithuania |
Measures adopted and to be adopted in order to avoid excessive pre-trial detention; measures adopted before October 1999 to tackle excessive length of court proceedings |
|
Luxembourg |
Creation of a trial-preparation procedure (“procédure de la mise en état»); increase in staff at the Luxembourg District Court and creation of two judges’ posts at the Administrative Tribunal; introduction of criminal mediation, urgent administrative procedure with suspensive effects, and extinctive time-limits; creation of a Consultative Commission of Human Rights (in 1999); draft law on the introduction of the institution of Ombudsman (tabled in 2001) |
|
Malta |
Measures taken to improve judicial supervision of deprivation of liberty; measures adopted to reduce the length of judicial proceedings |
|
Moldova |
|
|
The Netherlands |
Measures taken to accelerate civil proceedings; reinforcement of the judicial control of deprivation of liberty in the Netherlands Antilles |
|
Norway |
Proposals to strengthen judicial control of isolation of remand prisoners; proposals to reduce the length of detention on remand |
|
Poland |
Amendments to the 1982 Act on the Protection of Sobriety introducing ex post facto judicial review; measures taken with a view to shortening proceedings for release from a mental hospital; measures taken with a view to improving the administration of justice and avoiding delays; preparation of a draft law introducing a domestic remedy against excessive length of proceedings; amendments to the Law on Court Bailiffs regarding their remuneration |
|
Portugal |
Series of measures adopted to reduce the backlog of cases before the courts; draft law aimed at ensuring a better execution of civil judgments |
|
Romania |
Measures taken to accelerate court procedures; measures taken to improve execution of judicial decisions in civil cases |
|
Russian Federation |
Draft legal reform aimed at modernising the judicial system, inter alia by limiting the Public Prosecutor’s powers and improving the execution of judicial decisions, namely: adoption of a new Code of Criminal Procedure (to enter into force partly on 1.7.2002 and partly on 1.1.2004); draft Code of Civil Procedure being debated by the State Duma; adoption of Federal Law on the Status of Judges of the Federation and introduction of amendments to Federal Constitutional Law on the Judicial System of the Federation;introduction of a special procedure for revision of national criminal judgments following judgments by the ECourtHR; a similar procedure is to be provided for civil and administrative cases; intensive training CoE activity for Russian judges |
|
San Marino |
|
|
Slovak Republic |
Legislative measures aimed at reducing delays, mainly in civil cases: creation of the institution of Court Register (Rechtspfleger); law increasing the remuneration of judges; adopted and envisaged amendments to the Codes of Civil and Criminal Procedure and to the Rules of Procedure of the regional and district courts |
|
Slovenia |
Measures taken to reduce backlog of pending cases; measures taken to improve execution of judgments |
|
Spain |
Accountability of police officers responsible for past illegal detention of suspects related to terrorist activities |
|
Sweden |
Measures taken to prevent delays in proceedings before the administrative courts |
|
Switzerland |
New Federal Constitution, which entered into force on 1.1.2000; referendum of 12.3.2000, approving the principle of reform of the judicial system, including the re-organisation of the Federal Court and unification of the criminal and civil procedures; “effectiveness” programme for criminal proceedings |
|
‘The former Yugoslav Republic of Macedonia’ |
Setting up of an interministerial committee to engage in a comprehensive reform of the criminal judicial system; adoption of the Law on Amendments and Supplements to the Law on the Enforcement Procedure and the Law on Contractual Mortgage |
|
Turkey |
A set of legal reforms scheduled within the context of the EU accession (National Programme); a package of constitutional amendments, aimed at strengthening protection of human rights, entered into force in October 2001; the envisaged setting-up of a “Judicial Academy” |
|
Ukraine |
Adoption of a series of laws concerning the judiciary and the police in June 2001; entry into force of the new Code of Criminal Procedure on 1.9.2001 |
|
United Kingdom |
Adoption of the 2000 Terrorism Act limiting police custody prior to judicial authorisation to 48 hours and withdrawal of the relevant derogation under Article 15 ECHR; entry into force in April 1999 of a revised Statutory Code of Practice of the Mental Health Act of 1983; measures taken to reduce delays in criminal and civil cases; an Enforcement Review of civil court judgments in England and Wales aimed at making the enforcement system more straightforward |
8. Theme No. 8: Non-discrimination, with emphasis on the fight against intolerance and racism
(i) Introductory note
An overview was drawn-up by the Monitoring Department, DSP, in April/May 2002. Debate within the Committee of Ministers took place in July 2002. Conclusions were agreed upon by the Ministers’ Deputies in October 2002. Consideration of this theme was thereupon suspended for a period of at least two years.
In December 2002, in the context of its thematic work, the European Commission against Racism and Intolerance (ECRI) adopted a general policy recommendation on national legislation to combat racism and racial discrimination (Recommendation No. 7). A new statute of ECRI was also adopted by the Committee of Ministers on 13th June 2002 (Resolution Res(2002)8).
(ii) Decisions
Extract from the Ministers’ Deputies 814th meeting, doc. CM/Del/Dec (2002)814, item 2.1, 28 October 2002
“Decisions
The Deputies
1. as regards the theme “non-discrimination, with emphasis on the fight against intolerance and racism”, requested the Secretariat to transmit documents CM/Monitor(2002)11 and Addendum, CM/Monitor(2002)12 and Addenda, as well as relevant extracts from CM/Del/Act(2002)801, to the European Commission against Racism and Intolerance (ECRI), the Advisory Committee on the Framework Convention for the Protection of National Minorities and the Commissioner for Human Rights;[22]
2. Agreed to suspend consideration of this theme for at least two years.”
9. Theme No. 9: Freedom of conscience and religion
(i) Introductory note
This theme was examined under a streamlined thematic monitoring procedure (see doc. Monitor/Inf(2003)2). The overview, which was prepared by the Monitoring Department, DSP, was issued in June 2003. Discussions within the Committee of Ministers were held in July 2003. Follow-up proposals are still under discussion.
(ii) Decisions
Extract from the Ministers’ Deputies 815th meeting, doc. CM/Del/Dec(2002)815, item 2.5, 30 October 2002
“Decisions
The Deputies
[…]
3. adopted [the following theme] for the monitoring procedure of compliance of commitments:
[…]
Question:
“How is the freedom of conscience and religion ensured in your country?”
Please provide one or two recent examples of progress made in this respect (e.g. recognition of religions, respect of their autonomy, legal status, including property questions, issues relating to co-existence of various beliefs and creeds, non-discrimination).
Explanation:
This subject deserves greater attention within the framework of the Council of Europe’s intergovernmental and co-operation activities. Reference can, in this connection, be made to the case-law of the European Court of Human Rights in interpreting the notions of the “freedom of conscience and religion” (http://www.echr.coe.int).”
Extract from the Ministers’ Deputies 846th meeting, doc. CM/Del/Dec(2003)846, item 2.1, of 3 July 2003.
“Decisions
The Deputies
1. took note of the replies to the questionnaire provided by member states (CM/Monitor(2003)9 and Addenda 1 and 2 and supplementary information provided), and of the Secretariat comments (CM/Monitor(2003)10);
2. noted that certain replies to the questionnaire were not submitted by the deadline;
3. noted that Delegations were requested to submit follow-up proposals to the discussion on the theme “freedom of conscience and religion” to the Chairman by the end of July 2003;
4. decided to come back to the issue dealt with under this item at one of their forthcoming regular meetings, in the light of the Chairman's summing-up.”
10. Themes for which examination has been closed: Equality between women and men
(a) Introductory note
This theme was examined under a streamlined thematic monitoring procedure (see doc. Monitor/Inf(2003)2). The overview was issued in September 2003 by the Monitoring Department, DSP. Discussions within the Committee of Ministers took place in October 2003 on the basis of document CM/Monitor(2003)15 (available on the Committee of Ministers’ Internet Site: www.coe.int/cm). Conclusions and follow-up measures were adopted in December 2003. The Ministers’ Deputies also decided to close the examination of this theme.
The Steering Committee on Equality between Women and Men (CDEG) has been mandated to examine the feasibility of, inter alia, a recommendation of the Committee of Ministers on minimum standards on equality between women and men, including national equality mechanisms. Member states are also encouraged to request specific Council of Europe assistance in the implementation of their legislative framework and policy in the field of equality between women and men.
(b) Decisions
- Extract from the Ministers’ Deputies 815th meeting, doc. CM/Del/Dec(2002)815, item 2.5, 30 October 2002
“The Deputies
[…]
3. adopted [the following theme] for the monitoring procedure of compliance of commitments:
[…]
Question:
‘”What mechanisms exist at national level to secure equal rights between women and men in compliance with the relevant Council of Europe instruments? In providing this information, please indicate concrete results achieved.”
- Extract from the Ministers’ Deputies 858th meeting, doc. CM/Del/Dec(2003)858, item 2.1, of 27-28 October 2003
“Decisions
The Deputies
1. took note of the replies to the questionnaire provided by member states (CM/Monitor(2003)14 and Addenda I and II and supplementary information provided), and of the Secretariat comments (CM/Monitor(2003)15);
2. noted that certain replies to the questionnaire were not submitted by the deadline;
3. decided to come back to the issue dealt with under this item at one of their forthcoming regular meetings, in the light of the Chairman's summing-up.”
- Extract from the Ministers’ Deputies 864th meeting, doc. CM/Del/Dec(2003)864, item 2.4, 4 December 2003
“Decisions
In the light of the results of their 858th meeting (in camera, 27-28 October 2003) and of the Chairman's summing-up (CM/Monitor(2003)20) as concerns the theme “Equality between women and men”, the Ministers' Deputies
1. decided to declassify document CM/Monitor(2003)15;
2. decided to transmit to the Steering Committee on Equality between Women and Men (CDEG) documents CM/Monitor(2003)14 and its addenda, CM/Monitor(2003)15 and relevant extracts from document CM/Del/Act(2003)858, and in this context, instructed the CDEG to examine the feasibility of :
(i) a stock-taking of the effective functioning of existing national equality mechanisms in the light of information provided at their 858th (in camera) monitoring meeting on this theme;
(ii) a recommendation of the Committee of Ministers on minimum standards on equality between women and men, including national equality mechanisms;
3. encouraged member states to set-up or strengthen national equality mechanisms in the fields of employment, balanced participation of women and men in political and public decision-making process, protection of women against violence and action against trafficking of women for the purpose of sexual exploitation;
4. encouraged member states to request specific Council of Europe assistance in the implementation of their legislative framework and policy in the field of equality between women and men;
5. decided to close the examination of this theme.”
11. Re-adjustment of monitoring themes and proposals for new themes
(a) Introductory note
In the light of developments in the context of Council of Europe’s intergovernmental work and other monitoring procedures, the Committee of Ministers has undertaken discussions on the re-adjustment of thematic monitoring (see below).
At their 882nd (in camera) meeting of 15 April 2004, the Deputies decided to postpone consideration of proposals to close/suspend existing themes or to start dealing with new themes pending the outcome of the work on the reform of the monitoring procedure.
(b) Decisions
Extract from the Ministers’ Deputies 882nd meeting, doc. CM/Del/Dec(2004)882, item 1.3, of 15 April 2004
“Decisions
The Deputies, pending the outcome of the work on the reform of thematic monitoring,
1. decided to postpone to their 889th meeting (in camera, 29 June 2004):
i. discussions on proposals to close / suspend monitoring themes dealt with by the Committee of Ministers;
ii. discussions on proposals for new monitoring themes, initially foreseen for the 883rd meeting of the Deputies (5 May 2004) (see CM/Del/Dec(2004)868, item 2.3); [… ].”
D. Reform of the Committee of Ministers’ thematic monitoring procedure
1. Introductory note
Further to an informal meeting of 2 October 2003, at their 858th (in camera) monitoring meeting of 27-28 October 2003 the Ministers’ Deputies examined the proposals made by the Secretary General to enhance the thematic monitoring procedure. The reform of the procedure was also subject to discussion on 4th and 7th December 2003 and on 14-15 January 2004. In this context, the Ministers’ Deputies decided to put into place an ad hoc Working Group on the reform of the thematic monitoring process (GT-MON) with the specific task of preparing proposals with a view to the 114th Session of the Committee of Ministers. At their 870th meeting, the Deputies decided to entrust the Chairmanship of the GT-MON to Ambassador Niels-Jorgen Nehring, Permanent Representative of Denmark.
In accordance with its terms of reference, the GT-MON prepared a “progress report” on the reform of the Committee of Ministers thematic monitoring procedure, which was approved by the Deputies at their 882nd in camera monitoring meeting on 15 April 2004. This report has been submitted to the 114th Session of the Ministers, to be held on 12-13 May 2004.
2. The Ad hoc Working Group on the reform of the thematic monitoring process (GT-MON)
Extract from the Ministers’ Deputies 868th meeting, doc. CM/Del/Dec(2004)868, item 2.3, Appendix 5, 15-15/01/2004
“Ad hoc Working Group on the reform of the thematic monitoring process (GT-MON)
Terms of reference
1. Name of Working Group
Ad hoc Working Group on the reform of the thematic monitoring process (open-ended) – (GT-MON)
2. Type of Working Group
Committee of Ministers' ad hoc working group
3. Source of terms of reference
Decision of the Committee of Ministers (14 January 2004, CM/Del/Dec(2004)868/2.3)
4. Terms of reference
Elaborate proposals, for adoption at the 114th Ministerial Session, to obtain greater efficiency with respect to thematic monitoring as envisaged in the 1995 procedure for implementing the 1994 Committee of Ministers' Declaration on compliance with commitments accepted by member states. This work will take into consideration the Secretary General's proposal, as well as proposals made or to be made by Delegations.
5. Membership of the Working Group
Open-ended ad hoc working group, meeting in camera.
6. Duration
The Working Group should report to the Ministers' Deputies by 14 April 2004.”
Extract from the Ministers’ Deputies 882nd meeting, doc. CM/Del/Dec(2004)882, item 1.2, of 15 April 2004
“Decisions
The Deputies
1. approved the Progress Report of the Ad Hoc Working Party on the reform of the thematic monitoring process (GT-MON), as set out in document GT-MON(2004)11-rev 2;
2. bearing in mind their decision to put on the agenda of the 114th session of the Committee of Ministers an item “prospects for a reform of the Committee of Ministers' monitoring procedure”, decided to transmit the above-mentioned Progress Report to the Ministers.”
III. SPECIFIC POST-ACCESSION MONITORING
A. Ad hoc monitoring with respect to Armenia and Azerbaijan
1. Secretariat information missions to examine priority issues in view of post-accession monitoring (2000)
The Committee of Ministers, at its 107th Session held in Strasbourg on 9th November 2000, decided to simultaneously invite Armenia and Azerbaijan to become member States of the Council of Europe, to be confirmed when the date of the accession ceremony is to be fixed. When so doing, the Committee of Ministers decided to monitor on a regular basis the democratic development of both countries and instructed the Ministers’ Deputies to take appropriate follow-up action.
In the light of the above decisions, the Secretary General took the initiative to send, at the same time, two separate Information Missions of the Secretariat to Armenia and Azerbaijan. The results of these Secretariat Information Missions can be found in documents SG/Inf(2000)46 revised and SG/Inf(2000)47 revised (available on the Council of Europe Internet Site: ww.coe.int/sg/e and http://dsp.coe.int/monitoring).
2. The Committee of Ministers ad hoc Monitoring Group GT-SUIVI.AGO
(i) Extract from Appendix 2 to the Committee of Ministers Resolutions Res(2000)13 and Res(2000)14, 9th November 2000
“The Ministers
[…]
2. with regard to Armenia:
i. decided to monitor on a regular basis the democratic development of the country, in the light of the exchange of letters between the Chairman of the Committee of Ministers and the Minister for Foreign Affairs of Armenia in October 2000, if necessary with the help of working groups to be set up for that purpose;
[…]
3. with regard to Azerbaijan:
i. decided to monitor on a regular basis the democratic development of the country, in the light of the exchange of letters between the Chairman of the Committee of Ministers and the Minister for Foreign Affairs of Azerbaijan in October 2000, if necessary with the help of working groups to be set up for that purpose; […]
iii. decided to create in this context a monitoring group which will report before the 737th meeting of the Deputies (17 January 2001) preceding the next part-session of the Parliamentary Assembly […]”
(ii) Relevant decisions
(a) Extract from the Ministers’ Deputies 730th meeting, doc. CM/Del/Dec(2000)730, item 2.1a, 22nd November 2000
“Decisions
The Deputies
1. took note of the report of the Chairman of their Rapporteur Group, GR-EDS, in the light of the synopsis of the meeting of 17 November 2000 (GR-EDS(2000)67);
regarding the follow-up to be given to the decisions taken by the Ministers at their 107th Session on Armenia and Azerbaijan
2. taking into account the decision of the Ministers to monitor on a regular basis the democratic development of Armenia and Azerbaijan, in the light of the exchange of letters of October 2000 between the Chairman of the Committee of Ministers and the Ministers for Foreign Affairs of the two countries, if necessary with the help of working groups to be set up for that purpose, invited their Rapporteur Group GR-EDS to place an item “Monitoring of the democratic development of Armenia and Azerbaijan” on the agenda of all its meetings until the next part-Session of the Parliamentary Assembly in January 2001, and to report back to them on a regular basis;
3. taking into account decision 2 above and the decision of the Ministers to create a monitoring group which will report before the 737th meeting of the Deputies (17 January 2001), decided that this group will be composed of the Permanent Representatives of the following member states: Austria, France, Georgia, Greece, Italy, Latvia, Netherlands, Romania, Russian Federation, Sweden, Switzerland, Turkey and Germany (in his capacity as Chairman of the GR-EDS), under the chairmanship of the Permanent Representative of Italy
[… ]”
(b) Extract from the Ministers’ Deputies 737th meeting, doc. CM/Del/Dec(2001)737, item 1.5, 17th January 2001
“Decisions
The Deputies
[…]
2. agreed on the need for a specific monitoring procedure for Armenia and Azerbaijan following accession and to mandate the GT-SUIVI.AGO with this task within the wider context of the activities of GR-EDS.”
(c) Extract from the Ministers’ Deputies 861st meeting, doc. CM/Del/Dec(2001)761, item 2.6, 18th July 2001
“Decisions
The Deputies
1. whilst recognising the significant progress achieved, invited Armenia and Azerbaijan to continue their efforts to comply with the timetable and commitments accepted at the time of their accession;
2. noted that GT-SUIVI AGO would continue its work in the context of the specific monitoring procedure for Armenia and Azerbaijan;
3. invited Armenia and Azerbaijan to consult the Secretariat of the Council of Europe at all stages in the preparation of draft legislation and within a reasonable time, including consultation on the final version of texts to be put to a vote in parliament;
4. invited Armenia and Azerbaijan to organise, with the help of the Council of Europe and with an eye to the effective application of laws, training seminars for civil servants, police officers, judges and lawyers;
5. urged the authorities of both countries to take active steps to find a peaceful solution to the Nagorno-Karabakh conflict;
6. instructed the Secretariat to forward this report to the Parliamentary Assembly as part of the dialogue between the Committee of Ministers and the Parliamentary Assembly on monitoring.
7. agreed to resume consideration of this item in the light of proposals made at their 762nd meeting (5 September 2001).”
(d) Extract from the Ministers’ Deputies 781st meeting, doc. CM/Del/Dec(2002)781, item 2.1, 30th January 2001
“Decision
The Deputies took note of the oral report by the Chair of the Monitoring Group
(GT-SUIVI.AGO).”
(e) Extract from the Ministers’ Deputies 799th meeting, doc. CM/Del/Dec(2002)799, item 2.3, 13th June 2002
“Decisions
The Deputies
1. took note of the progress report of the GT-SUIVI.AGO as it appears in document CM(2002)79-rev.
2. asked the authorities of Armenia and Azerbaijan to redouble their endeavours to honour all the commitments undertaken on accession and involve political forces and the public in the reforms, and in this context to:
- press on with the legislative reforms, taking care to consult the Council of Europe and the Venice Commission on the final versions of the laws which they submit to Parliament for enactment;
- step up co-operation with the Council of Europe in organising seminars and training programmes for the people implementing the legislation. Similarly there need to be awareness-raising drives more particularly on implementation of the European Convention on Human Rights. In this connection the Deputies suggested that the two countries draw up a list of their most immediate needs in order to determine what co-operation is possible;
- as regards the Nagorno-Karabakh conflict, honour their commitments and actively seek a peaceful solution to the conflict;
3. asked the GT-SUIVI.AGO to continue its monitoring work on the honouring of Armenia’s and Azerbaijan’s commitments;
4. decided to forward the present report to the Parliamentary Assembly as part of dialogue between the Committee of Ministers and the Parliamentary Assembly on monitoring the honouring of commitments.”
(f) Extract from the Ministers’ Deputies 873rd meeting, doc. CM/Del/Dec(2002)822, item 2.1b, 18th December 2002
“Decisions
The Deputies
1. took note of the oral progress report by the Chair of the GT-SUIVI.AGO;
2. took note of the Group’s proposal regarding trial observation in Azerbaijan.”
(g) Extract from the Ministers’ Deputies 850th meeting, doc. CM/Del/Dec(2002)850, item 2.4, 3rd September 2003
“Decisions
The Deputies, having taken note of the statements by the Representatives of Armenia and Azerbaijan,
1. took note of the Progress Report of the Monitoring Group (GT-SUIVI.AGO), following the visit which a delegation from the group made to Armenia and Azerbaijan from 7 to 12 July 2003 (document CM(2003)101-rev.);
2. asked the authorities of Armenia and Azerbaijan to speed up democratic reform and make significant progress in order to fully honour all the commitments undertaken nearly three years ago on accession to the Council of Europe;
3. asked the authorities of Armenia and Azerbaijan to take rapid measures to solve all the problems mentioned in the 3rd progress report on the GT-SUIVI.AGO's work and underlined the particular urgency of unconditionally abolishing the death penalty in Armenia and of resolving the question of all political prisoners in Azerbaijan, in accordance with Council of Europe standards;
4. asked GT-SUIVI.AGO to continue its monitoring work on the honouring of Armenia's and Azerbaijan's commitments and to present a new progress report in early 2004;
5. agreed to forward the present report to the Parliamentary Assembly as part of the dialogue between the Committee of Ministers and the Parliamentary Assembly on monitoring the honouring of commitments.”
(h) Extract from the Ministers’ Deputies 873rd meeting, doc. CM/Del/Dec(2004)873, item 2.3, 17-18th February 2004
“Decisions
The Deputies
1. took note of the 4th progress report of the GT-SUVI.AGO as it appears in document CM(2004)22 and of progress made as described in the report;
2. With regard to Armenia
a. asked the authorities to pursue democratic reforms and continue to make significant progress towards fully honouring all the commitments entered into three years ago on Armenia's accession to the Council of Europe;
b. asked the authorities to implement the measures recommended in Resolution 1361 (2004) of the Parliamentary Assembly of the Council of Europe within the time-limits provided for and to submit a new roadmap (work programme and schedule for the implementation of the recommended measures) before the end of February 2004;
c. underlined the importance of adopting the constitutional reform within the time-limits agreed on with the Venice Commission, after consulting the political forces and conducting a genuine campaign to inform citizens, as well as the need to reform the electoral code and electoral practices in accordance with the recommendations of the International Election Observation Mission;
3. With regard to Azerbaijan
a. asked the authorities to pursue democratic reforms and continue to make significant progress towards fully honouring all the commitments entered into three years ago on Azerbaijan's accession to the Council of Europe;
b. asked the authorities to implement the measures recommended in Resolutions 1358 and 1359 (2004) of the Parliamentary Assembly of the Council of Europe within the time-limits provided for and to submit a roadmap (work programme and schedule for the implementation of the recommended measures) before the end of February 2004;
c. underlined the need to settle the problem of political prisoners, reform the electoral code and electoral practices in accordance with the recommendations of the International Election Observation Mission and to take effective steps to promote judicial reform, the independence of the judiciary and the media as well as local democracy;
4. With regard to both Armenia and Azerbaijan
a. asked both countries to honour their joint undertaking to find a peaceful solution to the Nagorno-Karabakh conflict, made on accession to the Council of Europe in conformity with the commitments undertaken both with the Committee of Ministers and with the Parliamentary Assembly. In this context reference is made to Opinions 221 (2000) and 222 (2000) and also to Resolutions 1358 and 1361 (2004) of the Parliamentary Assembly;
5. instructed the GT-SUIVI-AGO to continue its monitoring activities on the honouring of Armenia's and Azerbaijan's commitments and present a new progress report in autumn 2004;
6. instructed the Secretariat to forward this report to the Parliamentary Assembly as part of dialogue between the Committee of Ministers and the Parliamentary Assembly on monitoring the honouring of commitments.”
3. Study of cases of alleged political prisoners
(i) Introductory note and outline of the procedure
After Armenia and Azerbaijan became member States of the Council of Europe on 25th January 2001, the Ministers’ Deputies decided to look into cases of alleged political prisoners in both countries. In this context, they approved the Secretary General’s proposal to instruct (at that time) three Independent Experts[23] to inquire into cases referred to them. On 18 July 2001, the Secretary General informed the Committee of Ministers that he had received the experts’ report and, in the light of developments in Azerbaijan, decided to make the experts' report public on 24 October 2001 (see SG/Inf (2001) 34, SG/Inf (2001) 34 Addendum I and SG/Inf (2001) 34 Addendum II, also available on the Council of Europe’s Internet Site). Political follow-up to the independent experts' report was entrusted to the Parliamentary Assembly and the Ministers’ Deputies, in particular though the GT-SUIVI.AGO (see above).
In April 2002, two of the three experts, Professor Stefan Trechsel and Professor Evert Alkema, accepted the Secretary General's proposal to resume their task as Independent Experts and to provide opinions on whether or not the remaining group of prisoners, out of the list of 716 initially submitted to them, may be regarded as political prisoners, on the basis of the objective criteria adopted in their first report (communication of the Secretary General to the Committee of Ministers on 18 April 2002).
In co-operation with the Azerbaijani authorities, the Independent Experts insituted the following procedure with respect to their 2nd mandate:
|
Informal confidential procedure (possible settlement/release) |
Formal confidential procedure |
|
|
Independent Experts’ Provisional opinion: informal transmission, to the Azerbaijani authorities, of summary provisional opinions, for observations with a view to settlement/release of persons concerned |
èIndependent Experts’ Draft opinion: formal transmission of draft opinions to the Azerbaijani authorities for observations |
èIndependent Experts’Opinion:
Transmission of definitive opinions to the Secretary General |
Following several Presidential Pardons – the last one dated 17th March 2004 - all prisoners considered to be political prisoners by the Secretary General’s Independent Experts have been released or have been/will be re-tried (see also document SG/Inf(2004)1 and Addendum; see also Press Release of the Secretary General, dated 19th March 2004, http://www.coe.int/sg).
(ii) Relevant decisions
(a) Extract from the Ministers’ Deputies 738th meeting, doc. CM/Del/Dec(2001)738, item 2.1b, of 31st January 2001
“Proposal by the Secretary General on a possible expert study of cases of alleged political prisoners in Armenia and Azerbaijan
[…]
Decisions
The Deputies
1. decided that, in the context of the specific monitoring procedure for Armenia and Azerbaijan, cases of alleged political prisoners in these countries be transmitted to the Secretary General by Delegations to the Committee of Ministers before 28 February 2001;
2. approved, in this context, the Secretary General’s initiative to refer these cases to a group of independent experts whose terms of reference appear at Appendix 7 to the present volume of Decisions[24];
3. requested that the Secretary General submit on a confidential basis the experts’ opinion on the referred cases, as soon as available, to the monitoring group GT-SUIVI.AGO.”
(b) Extract from the Ministers’ Deputies 765th bis meeting, doc.CM/Del/Dec(2001)765bis, item 2.4, of 21st September 2001
“Report of the Secretary General’s independent experts on cases of alleged political prisoners in Armenia and Azerbaijan
[…]
Decisions
The Deputies
1. welcomed the Secretary General’s independent experts’ report on alleged political prisoners and Armenia and Azerbaijan as it appears in document [SG/Inf(2001)34 and Addendum I and Addendum II, available on Internet Sites: www.coe.int/sg/e and http://dsp.coe.int/monitoring], and Azerbaijan’s swift first reaction to it;
2. adopted the following declaration on this matter:
“The Committee of Ministers of the Council of Europe welcomes the news that the President of the Republic of Azerbaijan has issued on 17 August 2001 a decree pardoning 89 political prisoners, 66 of whom have been released and 23 of whom have had their sentences reduced. This is a significant step forward in the development of democracy in Azerbaijan, as a result of the independent experts’ report to the Secretary General, the Committee of Ministers’ efforts through its Monitoring Group GT-SUIVI.AGO and the Parliamentary Assembly’s monitoring procedure.
The Committee of Ministers nevertheless points out that on joining the Council of Europe Azerbaijan undertook to release or grant a new trial to all political prisoners, identified as such by the experts, some of whom are still in prison, in particular Mr. Iskander Gamidov, Mr. Alikram Gumbatov and Mr Raqim Gaziyev, expressly mentioned in Parliamentary Assembly Opinion No. 222 (2000). The Committee of Ministers however welcomes the decision of the government of Azerbaijan to grant a new trial to Mr. Gamidov. It renews its request to the Azerbaijan Government to persevere in its efforts to honour its obligations to the full. It hopes that the 10th anniversary of the independence of Azerbaijan on 18 October 2001 will afford the opportunity for a further gesture of reconciliation and will provide a solution to a problem which should not exist in a Council of Europe member state.”;
3. asked the Group to continue the dialogue with the Azerbaijan authorities on this question in order to give full implementation to this commitment undertaken by Azerbaijan and to aim for the settlement of this question in the near future.
4. asked the Group to continue the dialogue with the Armenian authorities on the questions about alleged “political prisoners” presented by the opposition representatives during the visit of the Group in July 2001.”
(c) Extract from the Ministers’ Deputies 877th meeting, doc.CM/Del/Dec(2004)877, item 2.1, of 24th March 2004
“Decision
The Deputies adopted the following Declarations:
a. Declaration on the decree of the President of Aerbaijan on “Pardoning of a number of persons sentenced to imprisonment”, as it appears in Appendix 2 to the Present volume of decisions;
[…]
DECLARATION BY THE COUNCIL OF EUROPE’S COMMITTEE OF MINISTERS
ON THE DECREE OF THE PRESIDENT OF AZERBAIJAN
ON "PARDONING OF A NUMBER OF PERSONS SENTENCED TO IMPRISONMENT"
Strasbourg, 24.03.2004 - The Committee of Ministers welcomes the recent Decree of the President of Azerbaijan on "Pardoning of a number of persons sentenced to imprisonment" by which 129 prisoners were given their freedom, 28 of whom appeared on the list of 716 cases examined by the Secretary General's Independent Experts on alleged political prisoners, Messrs S. Trechsel and E. Alkema.
The Committee appreciates the fact that this is the second extensive pardon by the new President of Azerbaijan who, since his election in October 2003, has freed more than 80 people whose names appear on the Council of Europe list.
The Committee particularly welcomes the setting free of two more pilot cases and encourages the President of Azerbaijan to continue in this vein of reconciliation and democratic reform. This is in line with the intentions he communicated during his discussions with the delegation of the Committee of Ministers’ Monitoring Group, the GT-SUIVI.AGO which visited Baku in February of this year.
The Committee of Ministers trusts that this file will be closed once and for all before September of this year as requested by the Parliamentary Assembly of the Council of Europe as well as by the Committee of Ministers after its consideration of the latest report of the GT-SUIVI.AGO.
B. Regular monitoring on the basis of, inter alia, Secretariat’s reports
1. Introductory note
Secretariat quarterly reports on compliance with commitments and the development of co-operation programmes are prepared in the context of the monitoring procedure set up subsequent to Bosnia and Herzegovina’s and Serbia and Montenegro’s accession (respectively, on 24 April 2002 and on 3 April 2003). These reports are examined during meetings of the Ministers’ Deputies Rapporteur Group on Democratic Stability (GR-EDS), which in turn reports to the Committee of Ministers. The reports are made public after the GR-EDS meeting. As concerns Georgia, the principle of regular monitoring on the basis of six-monthly reports on the honouring of obligations and commitments by this country was accepted in early 2003 (see in particular doc. SG/Inf(2003)1 and Addendum; also available on the Internet Site: www.coe.int/sg and http://dsp.coe.int/monitoring).
2. With respect to Bosnia and Herzegovina (quarterly monitoring procedure)
(i) Relevant decisions
Extract from the Ministers’ Deputies 797th meeting, doc. CM/Del/Dec(2002)797, item 2.1a, 29 May 2002
“Decisions
The Deputies
1. took note of the synopsis of the GR-EDS meeting held on 24 May 2002 (document GR-EDS(2002)CB7);
Bosnia and Herzegovina:
2. agreed with the Secretary General’s proposals concerning the arrangements for implementing the procedure for the monitoring of commitments by Bosnia and Herzegovina as set out in document GR-EDS(2002)24-rev, and took note of the first Secretariat information and assistance visit scheduled for July 2002 […]”
Extract from the Ministers’ Deputies 861st meeting, doc. CM/Del/Dec(2003)861, item 2.1a, 19 November 2003
“Decisions
The Deputies
1. took note of the synopsis of the GR-EDS meeting held on 14 November 2003 (document GR-EDS(2003)CB17);
2. in the context of the post-accession monitoring procedure for Bosnia and Herzegovina and on the basis of the report of a visit by a GR-EDS delegation to the area on 20-23 October 2003 (CM/Inf(2003)50):
a. asked the authorities of Bosnia and Herzegovina at State and Entities level to implement the recommendations which appear in paragraph 39 of the report;
b. asked the member states of the Council of Europe to consider assistance by way of human, material and financial resources such as to enable the Constitutional Court of Bosnia and Herzegovina to assume its responsibilities in terms of human rights protection (paragraph 40 of the report);
3. decided to declassify the report with a view to transmitting it to the Parliamentary Assembly.”
(ii) State of work
|
Secretariat’s Quarterly Reports (available on the Secretary General’s website : www.coe.int/sg and http://dsp.coe.int/monitoring) |
Discussions of Secretariat’s Reports in GR-EDS |
GR-EDS conclusions (restricted documents) |
Committee of Ministers (plenary meetings) |
|
|
1. |
SG/Inf(2002)27 and DSP(2002)14 |
06/09/2002 |
807th meeting of 11/09/2002 |
|
|
2. |
31/10/2002 |
816th meeting of 13/11/2002 |
||
|
3. |
21/03/2003 |
833th meeting of 26/03/2003 |
||
|
4. |
27/06/2003 |
845th meeting of 04/07/2003 |
||
|
5. |
19/09/2003 - 06/10/2003 |
855th meeting of 13/10/2003 |
||
|
6. |
SG/Inf(2004)10 and Addendum |
12/03/2004 26/03/2004 |
876th meeting of 17/03/2004 878th meeting of 31/03/2004 |
|
|
GR-EDS Report |
Discussions in GR-EDS |
GR-EDS conclusions |
Committee of Ministers (plenary meetings) |
|
14/11/2003 |
861st meeting of 19/11/2003 |
3. With respect to Georgia (six-monthly monitoring procedure)[25]
(i) Relevant decisions
Extract from the Ministers’ Deputies 825th meeting, doc. CM/Del/Dec(2003)825, item 1.3, of 22 January 2003
“Decisions
The Deputies
1. took note of the communication by the Secretary General, as it appears in document SG/Com(2003)825;
2. in this context, took note of the document “Compliance with commitments and obligations: the situation in Georgia” (SG/Inf (2003) 1 and Addendum) and of the proposals made by the Secretary General in this respect;
3. instructed their Rapporteur Group on Democratic Stability (GR-EDS) to examine this question and to report back.”
Extract from the Ministers’ Deputies 826th meeting, doc. CM/Del/Dec(2003)826, item 2.1a, 5 February 2003
“Decisions
The Deputies
[…]
4. noted that there was agreement on ensuring regular monitoring of Georgia’s respect of its obligations and commitments on the basis of proposals from the Secretary General, and instructed the GR-EDS to finalise the arrangements for implementing this procedure”
Extract from the Ministers’ Deputies 853rd meeting, doc. CM/Del/Dec(2003)853, item 2.1a, 26 September 2003
“Decisions
The Deputies
1. took note of the synopsis of the GR-EDS meeting held on 19 September 2003 (document GR-EDS(2003)CB14);
2. instructed the GR-EDS to pursue its regular monitoring of Georgia's compliance with its commitments and obligations, on the basis of arrangements made and of priority areas of action identified at their previous meetings (826th meeting, 5 February 2003, item 2.1a and 831st meeting, 12 March 2003, item 2.1a), namely: preparation of parliamentary elections scheduled for 2 November 2003 and formulation of the legislative and institutional framework for these elections, the functioning of the judicial system and law enforcement agencies, and combating corruption.”
(ii) State of work
|
Secretariat’s Six-monthly Reports (available on the Secretary General’s website : www.coe.int/sg and http://dsp.coe.int/monitoring) Reference document: |
Discussions of Secretariat’s Reports in GR-EDS |
GR-EDS conclusions (restricted documents) |
Committee of Ministers (plenary meetings) |
|
|
1 |
01/07/2003 |
845th meeting of 02/07/2003 |
||
|
2 |
09/02/2004 |
872nd meeting of 12 February 2004 |
||
|
GR-EDS Report |
Discussions in GR-EDS |
GR-EDS conclusions |
Committee of Ministers |
|
19/09/2003 |
853rd meeting of 24/09/2003 |
4. With respect to Serbia and Montenegro (quarterly monitoring procedure)
(i) Relevant decisions
Extracts from the Ministers’ Deputies 833rd meeting, doc. CM/Del/Dec(2003)833, item 2.4b, 26 March 2003 and Resolution (2003) 3 inviting Serbia and Montenegro to become a member State
“[…]
The Deputies
1. adopted Resolution Res(2003)3 inviting Serbia and Montenegro to become a member of the Council of Europe as it appears at Appendix 2 to the present volume of Decisions;
2. confirmed in principle decisions concerning the monitoring of the commitments of Serbia and Montenegro, to be undertaken under the auspices of the GR-EDS, once Serbia and Montenegro had joined the Council of Europe:
‘i. entrusted the Rapporteur Group on Democratic Stability (GR-EDS) with the task of regularly reviewing (on a quarterly basis) the honouring of obligations and commitments as undertaken by Serbia and Montenegro in the context of its accession to the Council of Europe. This should be done on the basis of relevant information provided by the Secretariat on the progress achieved (and/or difficulties encountered) in the implementation of the co-operation programmes, as well as all other relevant information provided by Serbia and Montenegro authorities and international institutions active in the country;
ii. on the basis of the conclusions of this regular review (and at any other moment, in case of urgency), targeted visits to Serbia and Montenegro, by representatives (or a group of representatives) of the Committee of Ministers at Deputies level could be carried out; these visits would be complemented by information and assistance missions of the Secretariat;’
3. invited the Secretariat to contact the authorities of Serbia and Montenegro to finalise the draft post‑accession co-operation programme;
4. agreed to fix the date for the ceremony for the accession of Serbia and Montenegro at 3 April 2003, subject to the fulfilment of the internal procedures by the country’s competent authorities.”
[…]
[Resolution (2003) 3]
[…]
[The Committee of Ministers] [r]eaffirm[s] both the commitment by the Committee of Ministers to provide Council of Europe support and assistance to the state union of Serbia and Montenegro and its determination to ensure through an appropriate monitoring procedure that the obligations and commitments linked to the accession of the state union of Serbia and Montenegro are honoured”
(ii) State of work
|
Secretariat’s Quarterly Reports (available on the Secretary General’s website : www.coe.int/sg and http://dsp.coe.int/monitoring) |
Discussions of Secretariat’s Reports in GR-EDS |
GR-EDS conclusions (restricted documents) |
Committee of Ministers |
|
|
1. |
15/07/2003 |
850th meeting of 03/09/2003 |
||
|
2. |
18/11/2003 |
861st meeting of 19/11/2003 |
||
|
3. |
20/02/2004 |
874th meeting of 03/03/2004 |
||
See also Report by the Chairman of the Committee of Ministers, document CM/Inf(2003)41.
* * *
SELECT BIBLIOGRAPHY
Council of Europe: “Compliance with commitments entered into by member States : development of the Committee of Ministers’ monitoring procedure” (doc. Monitor/Inf(98)2 available on Internet : www.coe.int/cm and http://dsp.coe.int/monitoring). Also published in French in Revue universelle des droits de l’homme, 1998, vol. 10, No. 7-10, pp. 371-382.
Council of Europe: “ Council of Europe monitoring procedures: an overview” (doc. Monitor/Inf(2004)2 available on Internet : www.coe.int/cm and http://dsp.coe.int/monitoring).
DRZEMCZEWSKI Andrew, “Monitoring by the Committee of Ministers of the Council of Europe : A Useful ‘Human Rights’ Mechanism ? “, Baltic Yearbook of International Law, 2002, vol. 2, pp. 83-103.
HALLER Bruno, KRÜGER Hans-Christian, PETZOLD Herbert (eds.), Law in a Greater Europe. Towards a Common Legal Area. Studies in Honour of Heinrich Klebes, Kluwer Law International, The Hague-London, 2000.
LEUPRECHT Peter, “Innovations in the European System of Human Rights Protection: Is Enlargement Compatible with Reinforcement?”, Transnational Law and Contemporary Problems (Journal of the University of Iowa College of Law), 1998, vol. 8, No. 2, pp. 313-336.
SICILIANOS Linos-Alexandre, “Les mécanismes de suivi au sein du Conseil de l’Europe”, L’effectivité des Organisations internationales : Mécanismes de suivi et de contrôle, (sous la direction de H. RUIZ-FABRI, L.-A. SICILIANOS et J.-M. SOREL), Sakoulas-Pedone, Athènes-Paris, 2000, pp. 247-272.
TRECHSEL Stefan, «The Notion of ‘Political Prisoner’ as Defined for the Purpose of Identifying Political Prisoners in Armenia and Azerbaijan”, Human Rights Law Journal, 2002, Vol. 23, Nos. 8-10, p. 293.
WINKLER Hans, «Democracy and Human Rights in Europe. A Survey of the Admission Practice of the Council of Europe”, Austrian Journal of Public and International Law, 1995, vol. 47, Nos. 2-3, pp. 147-172.
* This document replaces Monitor/Inf(2003)1-Add of 6 February 2003. It is also available on the following Internet Sites: http://dsp.coe.int/monitoring and http://www.coe.int/cm.
[1] Document SG/Inf(2000)24 and Addendum.
[2] See also below, under Part II, C.1 (thematic monitoring)
[3] See paragraph 1, last sentence, of the 1994 Declaration on compliance with commitments accepted by member States of the Council of Europe.
[4]The experts are: Mr David Anderson Q.C., a barrister specialising in human rights law, London ; Mr D. Barrelet, President of the Swiss Autorité indépendante d’examen des plaintes en matière de radio-télévision, Bern; Professor Jochen Abr. Frowein, former Director of Max-Planck Institute for Comparative Public Law and International Law and former Professor at the University of Heidelberg ; Mr Karol Jakubowicz, former Head of Strategic Planning and Development, Polish Television, Warsaw and Vice-President of the Council of Europe’s Steering Committee on the Mass Media; Mrs Marie McGonagle, Lecturer in Law at the National University of Ireland, Galway, a specialist in Media Law; Ms Monica Macovei, human rights lawyer/consultant, former state prosecuting official, Bucharest; presently working in Bosnia and Herzegovina and Professor Andrzej Rzepliński, criminal law expert, Chairman of the Advisory Board of the Press Freedom Monitoring Centre in Warsaw. More detailed biographies of the experts can be found on the Conference Internet Site: www.coe.int/cm/MediaLuxembourgE, “Committee of Ministers monitoring procedures - Background information”.
[5] More detailed information in this regard can be found on the internet site: http://www.coe.int/MediaLuxembourgE .
[6] See paragraph 1, last sentence, of the 1994 Declaration on compliance with commitments accepted by member states of the Council of Europe.
[7] See document Monitor/Inf(2003)3.
[8] See also Part III of the document (post-accession monitoring).
[9] Since 1999, the member States’ replies to questions (previously called “national contributions”) are public.
[10] “Comments” made by the Secretariat remain confidential unless otherwise decided by the Committee of Ministers.
* At this meeting there were no conclusions (taken in the form of "decisions") as such. Instead, note was taken of this summing-up provided by the Chairman.
[11] No. R(96)2 on referendums and popular initiatives at local levels
No. R(96)3 on local authorities’ budgetary deficits and excessive indebtedness
No. R(96)12 on the distribution of powers and responsibilities between central authorities and local and regional authorities with regard to the environment
No. R(98)12 on supervision of local authorities’ action
No. R(99)8 on the financial liability of local elected representatives for acts or omissions in the course of their duties
Rec(2000)14 on local taxation, financial equalisation and grants to local authorities.
[12] List of recommendations adopted by the Congress made at its 6th and 7th plenary sessions (1999 and 2000) concerning reports on the situation of local and/or regional democracy in certain countries:
Czech Republic: 77 (2000)
Estonia: Recommendation 81 (2000)
Finland: Recommendation 66 (1999)
France: Recommendation 78 (2000)
Germany: Recommendation 64 (1999)
Moldova: Recommendation 84 (2000)
Netherlands: Recommendation 55 (1999)
San Marino: Recommendation 63 (1999)
“the former Yugoslav Republic of Macedonia”: Recommendation 82 (2000)
Recommendation on the financial resources of local authorities in relation to their responsibilities: a litmus test for subsidiarity: Recommendation 79 (2000)
[13] See "Monitoring procedure of the Committee of Ministers on the theme capital punishment: collection of materials declassified in February 2000", doc. CM/Monitor(2000)3 (also issued as doc. AS/Inf(2000)2).
[14] All the documents referred to were transmitted in early April 2002.
9 Detention under various sections of the Offences Against the State Legislation and detention without charges under the Criminal Justice (Drug Trafficking) Act of 1996
[16] 5-day police custody in exceptional circumstances, usually in cases of organised crime
[17] 48-hour custody of “persons posing a threat to human life and health” under Article 15 § 1.3 of the Law on Police
[18] Pending the entry into force of the relevant provisions of the new Code of Criminal Procedure on 1.1.2004 (other provisions of the Code will enter into force on 1.7.2002)
[19]5-day (possibly incommunicado) police custody of persons suspected of having committed terrorist acts or collaborated with an armed group (Article 520 bis of the Code of Criminal Procedure)
[20] In cases where police officers or members of security forces are charged with or convicted for human rights violations
[21]Extended power to arrest and detain a foreign national under the Ani-terrorism, Crime and Security Act 2001(see United Kingdom’s derogation under Article 15ECHR); detention “during her Majesty’s pleasure” or in case of discretionary life prisoners
[22] All documents referred to were transmitted in November 2002.
[23] Mr Stefan Trechsel, Professor of Criminal Law and Procedure at the University of Zurich, Switzerland, and a former member and President of the European Commission of Human Rights; Professor Evert Alkema, member of the Dutch Council of State, and Alexander Arabadjiev, at the time member of the Bulgarian Constitutional Court, both also former members of the European Commission of Human Rights.
[24] “Terms of reference given to a group of independent experts to inquire into cases of alleged political prisoners in Armenia and Azerbaijan
[…]
1. The Secretary General, in the context of the specific monitoring procedure for Armenia and Azerbaijan, instructs three independent experts to inquire into the cases of alleged political prisoners in Armenia and Azerbaijan referred to them.
2. The experts shall prepare a confidential opinion on the said cases indicating whether the persons in question may be defined as political prisoners on the basis of objective criteria in the light of the case-law of the European Court of Human Rights and Council of Europe standards.
The experts shall transmit their opinion to the Secretary General by the 30 June 2001 [extended until 16 July 2001: see SG/Com(2001)754 of 6 June 2001].”
[25] See also Part I of the document.