Ministers’ Deputies

CM Documents

CM(2003)165 (restricted) 9December 2003

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867 Meeting, 8 January 2004
4 Human Rights

4.1 Steering Committee for Human Rights (CDDH)
a. Abridged report of the 56th meeting (Strasbourg, 18-21 November 2003)
b. Interim Activity Report “Guaranteeing the long-term effectiveness of the European Court of Human Rights – Implementation of the Declaration adopted by the Committee of Ministers at its 112th Session (14-15 May 2003)”

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Introduction

1.         The Steering Committee for Human Rights (CDDH) held its 56th meeting in Strasbourg on
18-21 November 2003, in the Palais de l’Europe, at Strasbourg, with Mr Martin EATON (United Kingdom) in the Chair.

The full meeting report (CDDH(2003)026, and Addenda I and II) can be obtained from the Directorate General II – Human Rights.

2.         At the meeting, the CDDH, in particular:

i.          adopted its Interim Activity Report: “Guaranteeing the long-term effectiveness of the European Court of Human Rights, Implementation of the Declaration adopted by the Committee of Ministers at its 112^th Session (14-15 May 2003)“ (CM(2003)…Addendum I);

ii.          adopted its Final Activity Report on Protection of Human Rights during armed conflicts, internal disturbances and tensions (CM(2003)…Addendum II) and within this framework, also adopted the draft declaration which is intended for the Committee of Ministers (Appendix I);

iii.         noted the ad hoc terms of reference with a view to the elaboration of a draft legally binding instrument on access to official documents and, within this framework, elaborated a questionnaire on the application of Recommendation Rec (2002)2 on access to official documents and adopted a Guide aiming at raising the awareness of national authorities and the public at large;

iv.         adopted three opinions on Parliamentary Assembly Recommendations 1606(2003) “Areas where the European Convention on Human Rights cannot be implemented”, 1614(2003) “Environment and human rights”, 1615(2003) “The institution of ombudsman” respectively (Appendix II);

v.         proceeded to an exchange of views with Mr Kevin McNAMARA, Rapporteur on the Reform of the European Court of Human Rights of the Committee of Legal Affairs and Human Rights of the Parliamentary Assembly and with Mr Alvaro GIL-ROBLES, Commissioner for Human Rights of the Council of Europe;

vi.         held a tour de table on the state of signatures and ratifications of Protocols No. 12 and No. 13 of the Convention.

Appendix I

DRAFT DECLARATION OF THE COMMITTEE OF MINISTERS

on the Protection of human rights during armed conflict,
internal disturbances and tensions

The Committee of Ministers of the Council of Europe:

1.         Recalls Resolution No. II adopted by the European Ministerial Conference on Human Rights (Rome, 3-4 November 2000) on the theme “Respect for Human Rights, a Key factor for Democratic Stability and Cohesion in Europe: Current issues”;

2.         Shares the concern expressed in that Resolution about situations of conflict or crisis in Europe, which pose fundamental questions of respect for human rights;

3.         Underlines the importance of appropriate preventive measures of a political and educational nature in order to promote respect for human rights during armed conflict as well as internal disturbances and tensions;

4.         Firmly condemns all situations of serious and massive violations of human rights;

5.         Welcomes the various activities that have been and are being undertaken as a follow up to the said Resolution as well as the strong interest shown by the Parliamentary Assembly in furthering the effective protection of human rights, as expressed most recently in its Recommendation 1606 (2003) on “Areas where the European Convention on Human Rights cannot be implemented”;

6.         Notes that the main problem of human rights protection in such situations is not one of lack of norms but rather of lack of implementation of, and compliance with, applicable human rights standards;

7.         Urges therefore all member states to take measures to ensure compliance in all circumstances with applicable human rights standards and in particular during armed conflict, as well as in situations of internal disturbances and tensions;

8.         Reiterates its call to member states to ratify the Rome Statute of the International Criminal Court and urges them to take measures to combat impunity generally;

9.         Invites all Council of Europe bodies and institutions active in the field of human rights – each within its own sphere of responsibility and limits of its competence – to pay special attention to human rights concerns in the context of all existing and newly emerging situations of tension or conflict;

10.        Commends the activities already undertaken in this respect, notably by the Council of Europe Commissioner for Human Rights, with a view to the prevention of human rights violations;

11.        Encourages the Commissioner to continue to pay particular attention to situations where there is a threat or where there are allegations of serious and massive violations of human rights, notably by further developing fact-finding and the formulation of targeted recommendations to which appropriate follow-up should be given;

12.        Agrees to contribute, through the elaboration of appropriate information and training materials, to efforts to ensure better awareness of human rights standards as laid down in relevant Council of Europe instruments:

-          among all relevant civil and military authorities of the member states;

-          among persons protected by such standards,

so as to promote compliance with those standards also in situations of armed conflict or internal disturbances and tensions,

13.        Agrees to keep under review the question of further Council of Europe action in this area.

Appendix II

Opinion of the CDDH on Recommendation of the Parliamentary Assembly 1606 (2003)

“Areas where the European Convention on Human Rights cannot be implemented”

1.         The Steering Committee for Human Rights (“the CDDH”) shares the concern of the Parliamentary Assembly (“the Assembly”) as regards the existence in member states of the Council of Europe of areas where the European Convention on Human Rights (“the Convention”) cannot be implemented. The CDDH notes that notwithstanding the fact that the Convention applies to all States Parties, there are in practice areas where obstacles to its implementation exist, mainly due to ongoing armed conflicts, internal disturbances and tensions. As the Assembly is aware, cases concerning certain aspects of this problem have been brought before the European Court of Human Rights (“the Court”). In addition, the CDDH recalls the existence of the various other human rights mechanisms of the Council of Europe, such as the European Committee for the Prevention of Torture, the European Committee of Social Rights, the Advisory Committee on the Framework Convention for the Protection of National Minorities, the European Commission against Racism and Intolerance or the Commissioner for Human Rights (“the Commissioner”), and notes that the situations covered by the Assembly Recommendation would not necessarily pose obstacles to their operation.

2.         In response to the Assembly’s recommendation that the Committee of Ministers takes steps to ensure that the Convention is better known and that training is widely provided in order to prevent human right violations (paragraph 10 (i)), the CDDH draws attention to the Committee of Ministers’ Recommendation on publication and dissemination in the member states of the text of the European Convention on Human Rights and of the case-law of the European Court of Human Rights of 18 December 2002[1]. The CDDH further notes that it is presently drafting a Committee of Ministers’ Recommendation to member states on the European Convention on Human Rights in university education and professional training[2]. The CDDH would also like to refer to the Final Activity Report of the Committee of Experts for the Development of Human Rights (“the DH-DEV”) on the Protection of Human Rights during Armed Conflict as well as during Internal Disturbances and Tensions and the draft declaration of the Committee of Ministers subsequently adopted by the CDDH, which underlines the importance of compliance with applicable human rights standards in these situations, the existence of ongoing activities, the fact-finding role which the Commissioner can play and the need to elaborate practical information and training materials in this field.

3.         As to the Assembly’s recommendation to envisage an actio popularis and create the post of public prosecutor at the Court, entrusting this task to the Commissioner (paragraphs 10 (ii-iii)), the CDDH notes that in the context of its ongoing work on the reform of the Convention mechanism, it has received a proposal from the Commissioner to amend the Convention so as to authorise the Commissioner to lodge applications with the Court. The CDDH and the Commissioner have exchanged views on this proposal, which the CDDH will consider further.

4.         Regarding the Assembly’s recommendation to include in the Convention an obligation on states to comply with measures imposed by the Court (paragraph 10 (iv)), the CDDH notes that the case-law of the Court as to whether its interim measures are binding is not yet fully established; a relevant case is presently pending before it[3]. The CDDH also recalls that Article 46 § 1 of the Convention already provides that “the High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties”. The CDDH therefore considers it unnecessary to amend the Convention as proposed by the Assembly. The CDDH however acknowledges that the present situation as regards the execution of judgments of the Court could be improved and, in this context, refers to its Final Report on “Guaranteeing the long-term effectiveness of the European Court of Human Rights”[4], which contains, inter alia, proposals to

improve and accelerate the execution of judgments of the Court. The CDDH is currently looking into how

these proposals could be incorporated in an amending Protocol to the Convention, as part of the ongoing reform of the system. The CDDH also recalls that the Committee of Ministers is currently examining how to deal with slow or inadequate execution of judgments of the Court[5].

5.         Therefore, the CDDH concludes that the abovementioned issues raised in the Assembly’s Recommendation are currently being addressed in various ongoing activities of the Council of Europe.

Opinion of the CDDH on Recommendation of the Parliamentary Assembly 1614 (2003)

“Environment and human rights”

1.         The Steering Committee for Human Rights (“the CDDH”) shares the belief of the Parliamentary Assembly (“the Assembly”), expressed in Recommendation 1614 (2003) on “Environment and human rights”, that a healthy, viable and decent environment is of paramount importance and that, accordingly, human rights which may be relevant to the protection of the environment need to be effectively protected.

2.         The CDDH notes that the Assembly recommends that the Committee of Ministers: (i) draw up an additional protocol to the European Convention on Human Rights (“the Convention”) (paragraphs 8 and 10 (i)) and (ii) draw up as an interim measure a recommendation of the Committee of Ministers in this area (paragraph 10 (ii)). The Assembly also recommends that it be represented in any committee entrusted by the Committee of Ministers with responsibility for drafting these texts.

3.         The CDDH acknowledges that neither the Convention nor its additional protocols expressly recognise a right to the protection of the environment. However, it notes that several member states have already included in their Constitutions provisions on the protection of the environment, formulated as a right and/or as a State objective. A programmatic provision on environmental protection has also been included in the Charter of Fundamental Rights of the European Union in Article 37, which provides that “a high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development”.

4.         The CDDH recalls that the Convention system already indirectly contributes to the protection of the environment through existing Convention rights and their interpretation in the case-law of the European Court of Human Rights (“the Court”). The Court has, for instance, interpreted Article 2 as protecting the rights of victims of fatal accidents caused by government negligence in the environmental field. Moreover, it has held that the State’s positive obligation which derives from Article 2 is also applicable to public activities in the environmental field, notably those liable to give rise to a serious risk for life[6]. Furthermore, Article 8 has become a central provision in the sphere of environment protection: the Court has found that “severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely”[7]. It is also worth recalling that Article 10 naturally covers the right to information in environmental matters, the right to hold opinions[8] as well as to receive and impart information and ideas[9]. As to the right to the peaceful enjoyment of possessions, guaranteed by Article 1 of Protocol No. 1, the Court has also held that it was applicable in environmental matters, for instance where (i) pollution causes loss or degradation of one’s property[10], or (ii) a victim does not receive the full compensation awarded by a domestic court for health deterioration resulting from grave environmental problems[11]. Several judgments of the Court on Articles 6 and 13, notably concerning the protection against water pollution[12], or noise disturbance[13] and air pollution[14] caused by aircrafts, show that these provisions offer procedural protection to individuals in this area.

5.         The CDDH considers that the Court’s case-law shows that the Convention already offers a certain degree of protection in relation to environmental issues. Furthermore, it is likely that the Court’s case-law will continue to evolve in this area. Therefore, the CDDH is of the opinion that it would not be advisable to draft an additional protocol to the Convention along the lines set out in the Assembly’s Recommendation[15]. Moreover, the CDDH considers that a recommendation of the Committee of Ministers to member states would not appear to be an appropriate measure either, notably in view of the case-law of the Court in this field which is already binding on States Parties. On the other hand, the CDDH does see merit in the idea of drafting an appropriate instrument, such as guidelines or a manual, recapitulating the rights as interpreted in the Court’s case-law and also emphasising the need to strengthen environmental protection at national level, notably as concerns access to information, participation in decision-making processes and access to justice in environmental matters. The CDDH believes that such an instrument, by making more explicit the protection indirectly afforded by the Convention to the environment, would also be a useful way of promoting greater awareness in member states of the implications of their existing obligations under the Convention in environmental matters.

6.         Following the Parliamentary Assembly proposals, the CDDH considers that such an instrument could rely on the principles recognised in the Court’s case-law and set out the ways in which the Convention provides indirect individual protection against environmental degradation, including the right to an effective remedy (Article 13 of the Convention) where there is an arguable complaint that a Convention right has been breached. Such an instrument could also address measures that could be taken at national level in order to give effect to those principles.

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7.         In the light of the above observations, the CDDH proposes that the Committee of Ministers gives it terms of reference to draft such an instrument. The CDDH would welcome participation of a representative of the Parliamentary Assembly in such an activity.

Opinion of the CDDH on Recommendation of the Parliamentary Assembly 1615 (2003)

“The Institution of Ombudsman”

1.         The Steering Committee for Human Rights (CDDH) welcomes the adoption by the Parliamentary Assembly on 8 September 2003 of Recommendation 1615 (2003), which emphasises the importance of the institution of Ombudsman within national systems and aims at further enhancing the right to good administration. The CDDH notes with interest that this document encourages member states to establish, preferably at constitutional level, the individual fundamental right to good administration and the institution of Parliamentary Ombudsman.

Individual fundamental right to good administration

2.         The CDDH notes that the Committee of Ministers is invited to elaborate a model text in order to give a definition to this right, which is already included in the Charter of Fundamental Rights of the European Union, as well as to draft a “Model Code of Good Administration” with a view to enabling the effective exercise of this right.

3.         The Assembly proposes that this model code be based on two texts already adopted by the Committee of Ministers, namely Recommendation no R (80) 2 concerning the exercise of discretionary powers by administrative authorities and Resolution (77) 31 on the protection of the individual in relation to the acts of administrative authorities, as well as on the European Ombudsman’s European Code of Good Administrative Behavior (The European Ombudsman’s Code) elaborated by the European Parliament[16].

4.         Conscious that multiplying texts on the same issue is not desirable, the CDDH shares the view of the Assembly that one consolidated text should be elaborated, which could replace the previous ones and allow the Committee of Ministers to encourage more effectively its implementation (paragraph 11 (iii)). It can therefore support this idea for the purpose of effectiveness.

5.         Moreover, the CDDH notes that the elaboration of such a text would be carried out with the participation of institutions such as the Council of Europe Commissioner for Human Rights, the European Commission for Democracy through Law or the European Ombudsman, which did not exist when some of the aforementioned texts were drafted, as well as with the participation of many states, which were not yet members of the Council of Europe. The new code would therefore reflect the current situation in Europe. Its implementation would be all the more facilitated that all present member states would have been able to contribute to its elaboration and would therefore feel more directly involved.  

6.         The CDDH finally notes that the Committee of Ministers is invited to encourage in due time Governments of member states to adopt and establish the abovementioned right and code at national level and to provide them with technical assistance in this field.

The Parliamentary Ombudsman

7.         The CDDH shares the Assembly’s interest for the establishment in the different national systems of institutions similar to that of « Parliamentary Ombudsman». Ombudsmen have an important role to play in protecting human rights and ensuring proper public administration practice at all levels. The CDDH agrees that most of the characteristics referred to by the Assembly in §7 of its Recommendation are necessary for any institution of Ombudsman to operate effectively. In any case, the CDDH recalls that the Ombudsmen with functions in the field of human rights should comply with the Paris Principles, which govern the status of national institutions for the promotion and protection of human rights[17]. It however considers that some of these characteristics might vary from one State to another, depending on the different national situations.

8.         The Assembly emphasises the interest in giving mandate to the Ombudsman to act in the field of human rights as it appears “fundamental to the concept of good administration” in order to implement duly this concept. The CDDH expresses its willingness to support further the idea of promoting the right to good administration from a human rights perspective, notably through the Ombudsmen’s action.

9.         The Assembly proposes to give the Ombudsman a wider role in the field of human rights, where, in the absence of specific complementary alternative mechanisms, national circumstances so require (§10 (iii)). The CDDH agrees with this idea.

10.        The CDDH notes that the Committee of Ministers is invited to encourage member states to implement its Recommendation no R (85) 13 related to the institution of Ombudsman, whilst also giving effect to the more detailed provisions of the present Recommendation of the Assembly and to support the Commissioner in his work of coordination of the activities of Ombudsmen of the member states. As to the last point, the CDDH recalls that the Committee of Ministers, in its Resolution (99) 50 on the Council of Europe Commissioner for Human Rights, pointed out that the Commissioner “shall facilitate the activities of national ombudsmen or similar institutions in the field of human rights” (article 3(d)) ^[18].

11.        The CDDH considers that these considerations could also be appropriately incorporated in the above-mentioned revised code.

12.        The CDDH remains at the disposal of the Committee of Ministers should it wish to involve it in any work carried out in this field, insofar as human rights are at issue.