Ministers’ Deputies
CM Documents
CM(2002)8 (restricted) 22 January 2002
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784 Meeting, 21 February 2002
4 Human Rights
Steering Committee for Human Rights (CDDH)
a. Abridged report of the 52nd meeting (Strasbourg, 6-9 November 2001)
b. Draft Recommendation Rec(2002)… of the Committee of Ministers to member states on the access to official information
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Introduction
1. The Steering Committee for Human Rights (CDDH) held its 52nd meeting on 6‑9 November 2001, in the Palais de l’Europe, with Mr Krzystof DRZEWICKI (Poland) in the Chair.
The full meeting report (CDDH (2001) 35 and Addendum) can be obtained from the Directorate General II - Human Rights.
2. At the meeting the CDDH, in particular:
i. examined its contribution to the fight against international terrorism in the light of the terms of reference received from the Ministers’ Deputies and decided, for this purpose, to set up a group of Specialists on human rights and the fight against terrorism (DH-S-TER);
ii. continued the examination of the follow-up to the European Ministerial Conference on Human Rights (Rome, 3-4 November 2000) and in this context,
- adopted draft Protocol No. 13 to the European Convention on Human Rights concerning the abolition of the death penalty in all circumstances, and the explanatory report thereto (see CM/Notes/773/4.4 and Appendix);
- examined the progress made by its subordinate bodies in the implementation of the follow-up decisions, concerning, inter alia, the reinforcement of the human rights protection mechanism;
- decided to set up a working group on legal and technical issues of a possible EU/EC accession to the European Convention on Human Rights (GT-DH-EU);
iii. adopted the draft Recommendation on access to official documents, and the draft explanatory memorandum thereto (see Appendix I);
iv. formulated opinions on:
- Parliamentary Assembly Recommendation 1418 (1999) on the protection of the human rights and dignity of the terminally ill and dying (see Appendix II, CM/Notes/780/6.1);
- Parliamentary Assembly Recommendation 1477 (2000) on the execution of judgments of the European Court of Human Rights (see Appendix III, CM/Notes/779/4.2);
- Parliamentary Assembly Recommendation 1492 (2001) on the rights of national minorities (see Appendix IV);
v. adopted an activity report on additional rights for persons deprived of their liberty (see Appendix V);
vi. adopted this report as a whole.
Appendices
I. Draft Recommendation Rec(…) of the Committee of Ministers to member states on access to official documents and draft explanatory memorandum.
II. Opinion of the CDDH concerning Parliamentary Assembly Recommendation 1418 (1999) on the protection of the human rights and dignity of the terminally ill and the dying.
III. Opinion of the CDDH concerning Parliamentary Assembly Recommendation 1477 (2000) on the execution of judgments of the European Court of Human Rights.
IV. Opinion of the CDDH concerning Parliamentary Assembly Recommendation 1492 (2001) on the rights of national minorities.
V. Additional rights for persons deprived of their liberty: activity report.
Appendix I
Draft Recommendation Rec(…)…of the Committee of Ministers to member states
on access to official documents
(Adopted by the CDDH during its 52nd meeting (6-9 November 2001))
The Committee of Ministers, under the terms of Article 15.bof the Statute of the Council of Europe,
Considering that the aim of the Council of Europe is the achievement of greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage;
Bearing in mind, in particular, Article 19 of the Universal Declaration of Human Rights, Articles 6, 8 and 10 of the European Convention on Human Rights and Fundamental Freedoms, the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters[1], and the Convention on the protection of individuals with regard to automatic processing of personal data of 28 January 1981 (ETS No. 108); the Declaration on the freedom of expression and information adopted on the 29 April 1982; as well as Recommendation N° R (81) 19 on the access to information held by public authorities; Recommendation N° R (91) 10 on the communication to third parties of personal data held by public bodies; Recommendation N° R (97) 18 concerning the protection of personal data collected and processed for statistical purposes and Recommendation N° R (2000) 13 on a European policy on access to archives;
Considering the importance in a pluralistic, democratic society of transparency of public administration and of the ready availability of information on issues of public interest;
Considering that wide access to official documents, on a basis of equality and in accordance with clear rules:
- allows the public to have an adequate view of, and to form a critical opinion on, the state of the society in which they live and on the authorities that govern them, whilst encouraging informed participation by the public in matters of public interest;
- fosters the efficiency and effectiveness of administrations and helps maintain their integrity by avoiding the risk of corruption;
- contributes to affirming the legitimacy of administrations as public services and to strengthening the public’s confidence in public authorities;
Considering therefore that the utmost endeavour should be made by member states to ensure availability to the public of information contained in official documents, subject to the protection of other rights and legitimate interests;
Stressing that the principles set out hereafter constitute a minimum standard, and that they should be understood without prejudice to domestic laws and regulations which already recognise a wider right of access to official documents;
Considering that, whereas this instrument concentrates on requests by individuals for access to official documents, public authorities should commit themselves to conducting an active communication policy, with the aim of making available to the public any information which is deemed useful in a transparent democratic society,
Recommends the governments of member states to be guided in their law and practice by the principles set out in this recommendation.
I
Definitions
For the purposes of this recommendation:
- “public authorities” shall mean:
i. government and administration at national, regional or local level;
ii. natural or legal persons insofar as they perform public functions or exercise administrative authority and as provided for by national law.
- “Official documents” shall mean:
all information recorded in any form, drawn up or received and held by public authorities and linked to any public or administrative function, with the exception of documents under preparation.
II
Scope
1. This recommendation concerns only official documents held by public authorities. However, member states should examine, in the light of their domestic law and practice, to what extent the principles of this recommendation could be applied to information held by legislative bodies and judicial authorities.
2. This recommendation does not affect the right of access or the limitations to access provided for in the Convention on the protection of individuals with regard to automatic processing of personal data (ETS No. 108).
III
General principle on access to official documents
Member states should guarantee the right of everyone to have access, on request, to official documents held by public authorities. This principle should apply without discrimination on any ground, including national origin.
IV
Possible limitations to access to official documents
1. Member states may limit the right of access to official documents. Limitations should be set down precisely in law, be necessary in a democratic society and be proportionate to the aim of providing protection on:
i. national security, defence and international relations;
ii. public safety;
iii. prevention, investigation and prosecution of criminal activities;
iv. privacy and other legitimate private interests;
v. commercial and other economic interests, be they private or public;
vi. equality of parties concerning court proceedings;
vii. nature;
viii. inspection, control and supervision by public authorities;
ix. economic, monetary and exchange rate policies of the state;
x. confidentiality of deliberations within or between public authorities for an authority’s internal preparation of a matter.
2. Access to a document may be refused if the disclosure of the information contained in the official document would or would be likely to harm any of the interests mentioned in paragraph 1, unless there is an overriding public interest in disclosure.
3. Member states should consider setting time limits beyond which the limitations mentioned in paragraph 1 no longer would apply.
V
Requests for access to official documents
1. An applicant for an official document should not be obliged to specify any reason for having access to the official document.
2. Formalities for requests should be kept to a minimum.
VI
Treatment of requests for access to official documents
1. A request for access to an official document should be dealt with by any public authority holding such a document.
2. Requests for access to official documents should be dealt with on an equal basis.
3. A request for access to an official document should be dealt with promptly. The decision should be reached, communicated and executed within any time limit which may have been specified beforehand.
4. If the public authority does not hold the requested official document it should, wherever possible, refer the applicant to the competent public authority.
5. The public authority should help the applicant, as far as possible, to identify the requested official document, but the public authority is not under a duty to comply with the request if it is a document which cannot be identified.
6. A request for access to an official document may be refused if the request is manifestly unreasonable.
7. A public authority refusing access to an official document wholly or in part should give the reasons for the refusal.
VII
Forms of access to official documents
1. When access is to be granted to an official document the public authority should allow the inspection of the original or provide a copy of it, while taking into account, within reasonable limits, the preference expressed by the applicant.
2. If a limitation applies to some of the information in an official document, the public authority should grant access to the remainder of the information contained in the document. Any deletions should be clearly indicated. However, if the remainder of the document is misleading or meaningless such access may be refused.
3. The public authority may give access to an official document by referring the applicant to easily accessible alternative sources.
VIII
Charges for access to official documents
1. Access to original official documents on the premises of the public authority should, in principle, be free of charge.
2. When a copy of the official document is supplied, a fee may be charged to the applicant. The fee should be reasonable and not exceed the actual costs incurred by the public authority.
IX
Review procedure
1. An applicant whose request for an official document has been refused, whether in part or in full, or dismissed, or has not been dealt with within the time limit mentioned in principle VI.3 should have access to a review procedure before a court of law or another independent and impartial body established by law.
2. An applicant should always have access to an expeditious and inexpensive procedure, whether that be reconsideration by a public authority or review in accordance with paragraph 1.
X
Complementary measures
1. Member states should take the necessary measures to:
a. inform the public about its rights of access to official documents and the way in which that right may be exercised;
b. ensure that public officials are trained in their duties and obligations in this right;
c. ensure that applicants can exercise their right.
2. To this end, public authorities should in particular:
a. manage their documents efficiently so that documents are easily accessible;
b. apply clear and established rules for preservation and destruction of their documents;
c. as far as possible, make available information on the matters or activities for which they are responsible, for example by setting up lists or registers of the documents they hold.
XI
Information made public
at the initiative of the public authorities
A public authority should, at its own initiative and where appropriate, take the necessary measures to make public information which it holds when the provision of such information is in the interest of promoting transparency of public administration and efficiency within administrations or will encourage informed participation by the public in matters of public interest.
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Appendix
Draft Explanatory Memorandum of the draft Recommendation Rec(…)…
of the Committee of Ministers to member states on access to official documents
(Adopted by the CDDH during its 52nd meeting (6-9 November 2001))
Background
1. Within the Council of Europe, the principle of public access to official information began to be developed in Recommendation N° R (81) 19 on access to information held by public authorities. A recent example of European co-operation in the field of access to official information is the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters[2]. Another recent example from the EU is the adoption of the Regulation (EC) N° 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents. In the course of the last years, there has been growing interest among the member states in making provision in domestic law for measures to ensure open government and public access to official information. Work was accordingly started in the Council of Europe in order to further elaborate basic principles on the right of access to official information held by public authorities.
2. This work was entrusted in the first instance to the Steering Committee on the Mass Media (CDMM). Then, in 1997[3], the Ministers' Deputies approved specific terms of reference given by the Steering Committee for Human Rights (CDDH) to the Group of Specialists on access to official information (DH-S-AC).
3. According to these terms of reference, the DH-S-AC was to examine options for preparing a binding legal instrument or other measures embodying basic principles on the right of access of the public to information held by public authorities. In so doing, the DH‑S‑AC was to have due regard to the aforementioned Recommendation N° R (81) 19 and to legislative developments in the field of access to information both in the member states of the Council of Europe and at European level as well as of relevant work being carried out within the Council of Europe and in other fora.
4. It should be noted that Article 19 of the Universal Declaration on Human Rights and Article 19 of the International Covenant on Civil and Political Rights appear to grant a wider right of access to official information than the European Convention on Human Rights as these provisions also contain a right to seek information.
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I
Definitions
Public authorities
5. It should be noted that there is no definition of “public authorities” in other legal instruments of the Council of Europe[4]. For the purposes of this recommendation, the expression “public authorities” shall cover the government and all bodies at national, regional or local administration, the term “government” covering both political bodies and administrative bodies.
6. The term “public authorities” also includes natural or legal persons in so far as they perform public functions or exercise administrative authority as provided for by national law. In some member states this notion also includes natural or legal persons performing services of public interest, or private entities financed by public funds.
Official documents
7. The term “official documents” covers, for the purpose of this recommendation, any information fixed on any physical medium in a retrievable form (written texts, tape-recordings - sound or audio-visual, photographs, e-mails, information stored in electronic data bases, etc.) Both documents produced by a public authority and documents emanating from third parties which have been received by a public authority are covered by the definition.
8. While it is usually easy to define the notion concerning paper documents, it is more difficult to define what is a document when the information is stored electronically in data bases. Member states must have a margin of appreciation in deciding how this notion can be defined. In some member states access will be given to specific information as specified by the applicant if this information is easily retrievable by existing means.
9. In member states, there are different traditions and practices concerning the qualification of documents as “official documents”. In principle, unfinished documents are not covered by this notion. Furthermore, in some member states, documents which contribute to the decision-making process (for instance, opinions, memoranda, etc.) are not considered as official until the decision to which they refer is taken. However, in other member states, documents can be made available before the decision for which the document is being prepared is taken, in particular to enable participation in the decision-making process.
10. In addition, it is important to distinguish clearly between documents received by public authorities which relate to their functions and those received by the officials as private individuals and not having any link to their functions, for example letters received in the officials’ capacity as politicians, or as holders of external posts. The latter category of documents is not covered in the definition adopted for the present instrument.
II
Scope
11. The scope of this recommendation is closely linked to the definitions above, and covers official documents held by public authorities. The member states should, however, also examine to what extent these principles could be applied to information held by legislative bodies and judicial authorities.
12. Information is also “held” by a public authority when it is physically held by a legal or natural person on behalf of a public authority under arrangements made between the public authority and that person.
13. This recommendation also covers official documents stored in Archives, without prejudice to the application of more specific rules set down in Recommendation 2000 (13) of the Committee of Ministers to member states on a European policy on access to archives.
14. Documents containing personal data are also within the scope of the recommendation. In this context, it should be noted that the Convention for the protection of individuals with regard to automatic processing of personal data of 28 January 1981 (ETS No. 108)[5] does not preclude granting third party access to official documents containing personal data. However, when giving access to such documents, this must be done in accordance with the rules laid down in Convention N° 108.
III
General principle on access to official documents
15. The right of access to official documents guaranteed in this instrument is limited to existing documents. A public authority is not under the obligation to produce new documents in order to reply to the request.
16. This right of access should apply to any person, i.e. natural persons and legal entities, without any discrimination on any ground including national origin. No limitations in this respect are set out in Recommendation N° R (81) 19 on access to information held by public authorities.
17. This recommendation applies to a general right of access to official documents which may be exercised by anyone. A person might also have a specific right to access official documents deriving from other legal instruments. For example, a person has the right of access to personal data relating to him/her, in accordance with the aforementioned Convention N°108. In the same vein, some member states provide a wider right to access to official documents to parties in administrative proceedings. In this context it should also be mentioned that Article 8 of the European Convention on Human Rights enshrines a right to access to information that relates to a person’s private or family life in certain circumstances (see, in particular, the judgments of the European Court of Human Rights of 7 July 1989 in the case of Gaskin v. the United Kingdom, of 26 March 1987 in the case of Leander v. Sweden, and of 19 February 1998 in the case of Guerra and others v. Italy).
18. This recommendation, whilst allowing disclosure to any person, does not affect any intellectual property right attached to the information disclosed.
IV
Possible limitations to access to official documents
19. Access to documents should be the rule and confidentiality the exception, in cases where other legitimate interests take precedence. Limitations should be set down precisely in law, be necessary in a democratic society and be proportionate to the aim of protecting the other legitimate interest(s).
20. It follows from the general right in Principle III above that individuals will need to be told whether the public authority holds a particular document. Where the protection of other legitimate interests takes precedence over disclosure, in limited circumstances it may be necessary to keep secret the fact that information exists. This would apply in circumstances where to admit or deny that the information existed in itself would amount to disclosure of the information.
21. Limitations to the right of access to official documents should be possible only for the reasons listed exhaustively in Principle IV, paragraph 1. A specific limitation foreseen by national law may fall under several limitations contained in this Principle. The criteria for the application of limitations have been drawn up keeping in mind Articles 6, 8 and 10 of the European Convention on Human Rights, as well as the relevant provisions which appear in the instruments relating to data protection, in particular in the aforementioned Convention for the protection of individuals with regard to automatic processing of personal data of 28 January 1981 (ETS No. 108), and in Recommendation N° R (81) 19 on access to information held by public authorities.
22. Paragraph 1.i foresees that member states could limit access to official documents in order to protect national security, defence and international relations. In some member states, limitations related to these fields have a constitutional dimension. For example, some states having regions with a large degree of autonomy, may also have interest in protecting correspondence between such regional authorities, or in federal states, between the federal government and regional authorities. Some member states also limit access to documents concerning the Head of state; this is the case in particular in some constitutional monarchies.
23. Paragraph 1. iv. foresees that member states could limit access to protect privacy and other legitimate private interests. Information relating to such interests may be covered by the aforementioned Convention N° 108, but the limitation foreseen by paragraph 1. iv. may also be applied to information not covered by that Convention.
24. The concept of “commercial and other economic interests”, as used in paragraph 1.v, may cover for example business matters which need to be kept secret for competition reasons, such as the confidential nature of business negotiations. This paragraph may also be extended to those documents which public authorities use to prepare collective bargaining, in which they take part.
25. In order to develop good statistical data, most states have confidentiality clauses protecting information gathered from private persons or entities for statistical purposes. Such data will usually either be personal data or data concerning economic or commercial interests. The access to documents containing such information, may therefore be limited in accordance with paragraph 1, items iv. and v. Similar considerations may apply to data collected in the course of taxation of private persons and entities.
26. Some states protect information given in confidence. This recommendation does not preclude this as long as the protected information is covered by one of the limitations in Principle IV, for example paragraph 1, items iv. or v.
27. The limitation concerning the protection of “equality of parties concerning court proceedings”, as set out in paragraph 1.vi, derives from Article 6 of the European Convention on Human Rights on the right to a fair trial. It aims, inter alia, at allowing a public authority to refuse access to its own documents with the view not to weakening its position during proceedings to which it is a party.
28. Limitations for the protection of “nature”, which are mentioned at paragraph 1.vii, are designed for example to prevent disclosure of the whereabouts of endangered fauna or flora in order to protect them. This limitation is in line with article 4, paragraph 4 (h) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters[6].
29. Paragraph 1. viii may, for example, protect the ability of a public authority to effectively regulate, investigate and audit, possibly through formal proceedings, other organisations or individuals, as well as their own internal rules and procedures. A possible example is an on‑going tax investigation or audit.
30. Paragraph 1. x. indicates the possibility to limit access in order to protect deliberations within or between public authorities for an authority’s internal preparation of a matter. This limitation would e.g. allow for documents from deliberations in the Cabinet to be exempted. The term “matter” is broad enough to cover all types of cases which are handled by the public authority, i.e. both individual cases and policy-making procedures.
31. Paragraph 2 expresses two important principles, the “harm-test” principle and the principle of balancing the interest of public access to documents against the interest protected by the limitation. If public access to an official document does not cause any harm to one of the interests listed in paragraph 1, there should be no limitations on access to that document. If public access to a document might cause harm to one of these interests, the document should still be released if the public interest in having access to the document overrides the protected interest.
32. The “harm test” and the “balancing of interests” may be carried out for each individual case, or by the legislator through the way in which the limitations are formulated. Legislation could for example set down varying requirements for carrying out harm tests. These requirements could take the form of a presumption for or against secrecy or unconditional secrecy for extremely sensitive information. When such requirements are set down in legislation, the public authority should make sure whether the requirements in the secrecy clause are fulfilled when they receive a request for access to such an official document. The level of sensitivity may vary with time and it should be avoided that the classification of a document would automatically prevent access to the same document in the future.
33. In some member states, documents will be released unless the protected interest overrides the public interest attached to disclosure. This approach is not incompatible with this recommendation.
34. Paragraph 3 evokes that member states should lay down maximum time limits for limitations on access. Accordingly, the documents should be made accessible after a certain period of time. In addition, time limits should be proportionate to what it is hoped to achieve, i.e. the protection of other rights and legitimate interests.
35. As regards documents classified as confidential, secret or top secret, the authorities should ensure that they are made accessible as soon as circumstances permit, or, if the law sets a time limit on confidentiality, as soon as that limit is reached. In some countries, the law provides for regular review of the confidential nature of an item of information. In others, review is carried out as necessary when a request is made for access.
V
Requests for access to official documents
36. An applicant for an official document should not be obliged to specify any reason for having access to the official document. This idea was already included in Recommendation N° R (81) 19 on access to information held by public authorities.
37. In paragraph 2, member states are encouraged to keep formalities to a minimum. In some member states, requests must be in written form. In others, they may be made orally. The right for an applicant to present an anonymous request exists in some member states. However, this recommendation does not oblige member states to grant applicants such a right.
VI
Treatment of requests for access to official documents
38. Paragraph 1 recommends that any authority holding an official document should deal, as soon as possible, with the request for access to that document. Before the decision is taken, the public authority may contact the source of the requested document. The public authority holding the official document should not oblige the applicant to present a new request to the public authority which is the source of the requested document.
39. Service and efficiency towards any applicant, without discrimination, which is expected from any public authority, will be reflected, in particular, in speedy treatment of requests and willingness to co-operate with the applicant, where the handling of the request is complicated. From this point of view, the text of the present recommendation goes further than Recommendation N° (81) 19 on access to information held by public authorities, which merely states that any request must be dealt with within a reasonable time.
40. Paragraph 2 refers to non-discriminatory treatment of requests as already provided for in Recommendation N° R (81)19. Discrimination should be avoided, as must the preferential treatment of requests, which should be dealt with on an equal basis and in accordance with objective criteria. The authorities holding the document should bear in mind the requirements of the additional Protocol No. 12 to the European Convention on Human Rights (prohibition of discrimination) open to signature by member states on 4 November 2000. This protocol broadens, in a general fashion, the field of application of Article 14 (non-discrimination) of the European Convention. As a rule, requests should be dealt with in order of receipt.
41. All requests should be dealt with as speedily as possible. The authorities should always tell the applicant whether or not they have decided to release a document. Moreover, where the decision is positive, member states should ensure that the document is made available without delay. The requirement to keep formalities to a minimum and the promptness of treatment should be followed by an execution of the decision without unnecessary delay. The authorities should inform the applicant if a delay is inevitable nonetheless.
42. Paragraphs 4 and 5 recommend to co-operate with the applicant and are particularly important if the applicant is disabled, illiterate, homeless, etc. The extent of the willingness to co-operate depends on the situation of the specific case. Therefore, the public authority enjoys a certain margin of appreciation, but should be as helpful as possible. Furthermore, in special cases, (disabled or illiterate people, the elderly or marginalised, foreigners with little or no knowledge of the language, etc), where applicants are unable without help to obtain a basic understanding of the document concerned, the authorities might envisage, as far as is possible and reasonable, helping them to secure such an understanding. Moreover, in some situations such help would correspond to the wishes expressed by the Committee of Ministers in Recommendation N° R (93) 1 on effective access to the law and to justice for the very poor. Help with comprehension of the information does not include an obligation to translate documents. Neither does it entail the giving of complicated technical (eg. legal) advice.
43. Paragraph 6 recommends that member states should deal with all requests for access on the merits unless they are manifestly unreasonable (e.g. where requests are excessively vague, or require a disproportionate amount of searching or cover too broad an area or too great a volume of documents). Where a request is plainly abusive (one of many regular requests designed to hinder a department’s normal work, or uncalled-for repetition of an identical request by the same applicant), it may be refused.
44. Paragraph 7 is based on Recommendation N° R (81) 19 on access to information held by public authorities and recommends that the public authority gives reasons for refusing access except in exceptional cases where the reasons would reveal information that may be exempted according to principle IV.
VII
Forms of access to official documents
45. There are different means of access to a document: inspecting the original or receiving a copy of it, or both. It should be up to the applicant to express his/her preference on the form of access. The public authority should take into account, within reasonable limits, such a preference. However, this may be impractical or impossible in some cases. For instance, it may be appropriate to refuse giving a copy of the document if the technical facilities are not available (for example, for audio, video or electronic copies), if it would entail unreasonable costs, if intellectual property rights might be infringed, or if unlawful use of the document might be rendered possible. It may be appropriate to refuse direct access to a document, if the original is physically fragile. Furthermore, there may be obstacles arising from “on-the-spot” consultations such as opening hours, several persons wanting the same document at the same time. Again, also in this context it is important that public authorities have an open attitude in allowing the general public into their offices.
46. If a limitation only applies to some of the information in a document, the rest of the document should normally be released. It should be clearly indicated where and how much information has been deleted. If the document is a paper document, deletions could be made on the copy by blanking out the parts to which the limitation applies. If the document is electronic, there should be a clear indication on the copy of which parts of the documents have been deleted, e.g., by leaving this space blank. Moreover, the release of part of the document should not be done in such a way that it would reveal information covered by the limitation.
47. Paragraph 3 indicates that access may be given by referring the applicant to easily accessible alternative sources. For example if a document is published on the Internet, the public authorities may refer the applicant to this, if the Internet is easily accessible to the applicant. Whether a document is “easily accessible” should be assessed on a case-by-case basis; what may be easily accessible for one person will not necessarily be so for another. Important factors may be the individual situation of the applicant (for example where he/she is
disabled, illiterate, homeless, or his/her geographical distance from the public authority which holds the requested official document). The situation of the country as far as accessibility of the public to information (for example, via the Internet) is concerned might also be a factor to be considered.
48. Where access to a document is refused, the public authorities may provide a summary of the document.
49. In some cases a person is merely interested in a certain type of information, and prefers this information to be given orally or in a written summary. States are encouraged to give this type of service, but this is not covered by this recommendation.
VIII
Charges for access to official documents
50. In order to facilitate access to public information, access to original documents on the spot should in principle be free of charge. However the public authority might charge the applicant for the cost of finding the actual documents, especially in cases where the request is voluminous or otherwise creates a large amount of work for the public authority. The fee should not exceed the actual costs incurred by the public authority.
51. Concerning copies, according to paragraph 2, costs of access may be charged to the applicant, but the authorities should not make any profit; the fees should be reasonable and kept to a minimum, and should not exceed the actual costs incurred by the public authority. The limitations on the fees that public authorities are allowed to charge relating to legislation on access to official documents, do not preclude public authorities from producing documents for commercial purposes and selling them at competitive rates.
IX
Review procedure
52. This article contains two principles. Firstly, the applicant should have a right to a review procedure before a court or another independent or impartial body established by law. In addition, the applicant should have access to an expeditious and inexpensive review procedure. This might be a review by a public authority or an independent authority. On this issue, it is important to note that in certain national systems an internal review procedure is seen as an obligatory intermediary step before a court of appeal or other independent complaints procedure. In some member states it is also possible to complain about refusals or malpractice in this field to a ombudsman, a mediator or a mediation body.
X
Complementary measures
53. The aforementioned Recommendation N° R (81) 19 on access to information held by public authorities stated that effective and appropriate means should be provided to ensure access to such information. Principle X of the present recommendation is an expression of the idea contained in paragraph vi. of the preamble, whereby public authorities should commit themselves to conducting an active communication policy, and, as a consequence, establish support systems.
54. In order to use their rights of access it is necessary for the applicants to know about their rights. Paragraph 1 in principle X therefore recommends that member states should take the necessary steps to inform the public about its rights. Such information could inter alia be given in folders to the public, information could be published electronically, or documentation centres could be set up.
55. Furthermore, in order to allow easy access to official documents, the public authorities should provide the necessary consultation facilities (appropriate technical equipment, including that making use of new information and communication technology; well-adapted premises). In any event, the public authorities should ensure preservation and secure storage of originals. They could also set up and indicate a contact point within the given department, in order to facilitate access to that department’s documents.
56. Paragraph 2. b. refers to issues related to the preservation and the destruction of official documents. The preservation generally implies the transfer to Archives services. There is a strong need for clear rules on these matters.
57. In order for the public to know what documents the public authority holds, paragraph 2. c. recommends that the public authority should make available information on the matters or activities for which they are responsible. One way of doing this is setting up lists or registers of the documents they hold, and making these accessible to the public. This will also facilitate the search for the requested documents. The public authority should also take account of the need to protect legitimate interests when deciding which type of information to include in these lists or registers.
XI
Information made public at the initiative of the public authorities
58. The final principle differs from the others in that it concerns an initiative to be taken by the national administration (making information public), whereas the other principles involve individual initiatives (applying for information). It certainly does not seek to prevail on public authorities to make public all the information in their possession, but rather to encourage them to make public such information (e.g. on administrative files concerning public works) as might foster “enlightened” citizen participation in general-interest debates. Such participation is an important factor for democracy and efficient administration. Moreover, the publication of information before it is requested is advantageous for the authorities in that they will not need to handle requests for that information, the information being henceforth available.
59. The public authorities are free to choose the most appropriate means of publishing information (billboards, official publications, websites or any other medium easily accessible to the public).
* * *
Appendix II
Opinion concerning Recommendation 1418 (1999) of the Parliamentary Assembly
on the protection of the human rights and dignity of the terminally ill and the dying
(Adopted by the CDDH during its 52nd meeting (6-9 November 2001))
1. The Steering Committee for Human Rights (CDDH) welcomes the work carried out by the Parliamentary Assembly, leading to Recommendation 1418 (1999), the subject of this opinion, which addresses the particularly sensitive issues of the protection of human rights and the dignity of the terminally ill and the dying. The CDDH has taken note of the interim reply adopted by the Ministers’ Deputies on 30 October 2000.
2. As a preliminary remark, it notes that member states have diverging approaches to the issues dealt with in the Recommendation. Although it is aware that there are many aspects to these issues - particularly ethical, psychological and sociological aspects - the CDDH intends to restrict its contribution to its specific area, i.e. human rights protection in the light of the European Convention on Human Rights and the case law of the European Court of Human Rights.
3. The CDDH felt that certain issues raised by the Recommendation are at the heart of the Convention, in particular with regard to Article 2 (Right to life), 3 (Prohibition of torture and inhuman or degrading treatment or punishment), and 8 (Right to respect for private and family life). It noted however, that as yet, there is no case-law of the Court, which could provide precise answers. That is why the CDDH prefers not to express its views at this stage on all the questions raised in the Recommendation.
4. First of all, the CDDH draws attention to Article 1 of the Convention, whereby the High Contracting Parties undertake to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention. This is a binding obligation for all Parties, irrespective of any expression of will by the person concerned in this respect. Therefore, in the case of patients who are entirely incapable of self-determination, the Court has pointed out that they nevertheless remain under the protection of the Convention[7]. This must be borne in mind when considering the “right of the terminally ill or the dying to self-determination”, to which reference is notably made in paragraph 9 (b) of the Recommendation. It is not possible, in view of the Court’s current case law, to claim that an expression of will by the patient in the form of an advance directive or living will (see paragraph 9(b)(iv)(vi) of the Recommendation) can override the Parties’ obligations under the Convention, particularly where the protection of the right to life is concerned (Article 2 of the Convention)[8] [9].
5. There can be no derogations to the right to life other than those mentioned under Article 2 of the Convention. Apart from these cases, no one may be intentionally deprived of life[10], as the Assembly notes in paragraph 9 (c)(i). The Court has not, however, yet had occasion to rule on the relevance of Article 2 to the proposals set out in paragraph 9 c (ii) and (iii)[11].
6. As regards the protection of human dignity afforded by Article 3 (“no one shall be subjected to torture or to inhuman or degrading treatment or punishment”), its requirements permit of no derogation[12]. It is true that the Court stated that “as a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading”[13], but it also noted that the assessment of an act as ill-treatment falling within the scope of Article 3 “depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc.”[14]. Moreover, Article 3 includes a number of obligations for the State: “Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity”[15].
7. There could also be instances where the right to respect for private and family life as guaranteed by Article 8, would become relevant in this context. At this stage, however, there are only very rare examples of case-law from the Strasbourg organs that could have a link to questions relating to the dignity of those who are ill within the scope of such a provision.[16]
8. The dual objective of avoiding such violations and alleviating suffering may give rise to a wide range of national measures, and the CDDH subscribes to it. The Recommendation draws attention to those concerning palliative care (see notably paragraph 9 (a)). Although definitions of palliative care do exist[17], the Recommendation does not define these terms any more than it gives a definition of the concept of “pain management” mentioned in paragraph 7 (i). The Assembly’s approach is appropriate in that it does not seem possible to give a uniform definition of these very broad concepts at European level. The CDDH refers to the current work being carried out by the European Health Committee on palliative care[18].
9. The CDDH notes, by way of conclusion, that several of the proposals made by the Parliamentary Assembly to member States, in particular a greater commitment on their part to relieve human suffering, can help protect human rights and the dignity of the terminally ill and the dying, provided that the Articles of the European Convention on Human Rights mentioned in this opinion are respected. However, in the absence of precise case law, the question of “human rights of the terminally ill and the dying”, seen from the angle of the Convention, gives rise to a series of other very complex questions of interpretation, such as:
- the question of interplay and possible conflict between the different relevant rights and freedoms and that of the margin of appreciation of the States Parties in finding solutions aiming to reconcile these rights and freedoms;
- the question of the nature and the scope of positive obligations incumbent upon States Parties and which are linked to the effective protection of rights and freedoms provided for by the Convention;
- the question of whether the relevant provisions in the Convention must be interpreted as also guaranteeing “negative rights”, as the Court has ruled for certain Articles of the Convention[19], as well as the question of whether an individual can renounce from exercising certain rights and freedoms in this context (and, if that is the case, in to what extent and under which conditions).
10. The CDDH will follow the development of these issues attentively, in the light of the Court’s case-law.
* * *
Appendix III
Opinion concerning Recommendation 1477 (2000) of the Parliamentary Assembly
on the execution of judgments of the European Court of Human Rights[20]
(Adopted by the CDDH during its 52nd meeting (6-9 November 2001))
1. The Steering Committee for Human Rights (CDDH) welcomes the adoption by the Assembly of Recommendation 1477 (2000), the subject of the present opinion. This document which is particularly opportune in the present context, stresses the importance of the execution of judgments of the European Court of Human Rights as the touchstone for the credibility of the protection system for human rights in Europe and also reflects the will of the Assembly to be more involved in this field.
2. The CDDH notes that the Assembly's assessment of the importance of the Convention, notably for the maintenance of democratic security and the rule of law on the European continent has been shared by the Governments of the Member States on numerous occasions, most recently by the European Ministerial Conference on Human Rights in Rome on 3‑4 November 2000. It notes in particular that the Conference calls upon all member States to ensure constantly that their law and practice conform to the Convention and to execute the judgments of the Court. It also expresses its clear conviction of the need to exercise optimum supervision of the execution of Court judgments, which would help to avoid new violations, and to render such supervision more transparent.
3. The CDDH further recalls the subsidiary nature of the control mechanism of the Convention, which presupposes that the rights guaranteed by the Convention should, first and foremost, be fully protected at national level and implemented by national authorities, in particular the courts.
4. This subsidiary nature is also reflected in the “declaratory” nature of the Court’s judgments which leaves Governments a wide discretion in respect of the choice of the method in implementing the judgment. Accordingly, in its judgment in the case of Scozzari and Giunta against Italy of 13 July 2000, paragraph 249, the Court pointed out:
“[…] subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment.”
5. The CDDH also points out, like the President of the Court[21], that the responsibility within the Convention control mechanism is clear: the task of establishing the existence of a violation falls to the Court, the judicial branch of the Council of Europe, while supervision of the execution of judgments finding such a violation is the responsibility of the Committee of Ministers, the executive branch (Article 46, paragraph 2, of the Convention). The CDDH agrees with the President that this is a system which on the whole has worked well. In the great majority of cases, States have acted in good faith and have endeavoured to fulfil their obligation to abide by the Court’s judgments (Article 46, paragraph 1, of the Convention). In this respect due credit should be given to the part played by the Committee of Ministers, assisted in particular by the Directorate General of Human Rights.
6. The CDDH is convinced that the question of the execution of judgments is one of the priorities for its future work. In this context, it is recalled that, at their 736th meeting (10‑11 January 2001, item 4.3), during which they examined the follow up to be given to the Conference, the Ministers’ Deputies instructed the CDDH to examine ways and means of assisting member States with a view to a better implementation of the Convention in their domestic law and practice. This mandate included, amongst others, the examination of questions linked to the execution of judgments.
* * *
7. The CDDH finds the proposals contained in the Assembly's Recommendation interesting while raising a number of questions. In the present opinion, the CDDH offers the following comments:
The Assembly, referring to its Resolution 1226 (2000) on the execution of judgments of the European Court of Human Rights, recommends that the Committee of Ministers:
i. amend the Convention so as to give the Committee of Ministers the power to ask the Court for a clarifying interpretation of its judgments in cases where the execution gives rise to reasonable doubts and serious problems regarding the correct mode of implementation;
8. As to the suggestion made in paragraph i of the Recommendation to give the Committee of Ministers the power to ask the Court for a clarifying interpretation of its judgments in cases where the execution gives rise to reasonable doubts and serious problems regarding the correct mode of implementation, the CDDH considers that this suggestion should be examined in the context of a global reflection on the reform of the current system of human rights protection and in the light of the reservations expressed notably by the President of the Court[22], as well as by the Committee of Experts for the Improvement of Procedures for the Protection of Human Rights (DH-PR)[23].
ii. amend the Convention to introduce a system of “astreintes” (daily fines for a delay in the performance of a legal obligation) to be imposed on states that persistently fail to execute a Court judgment;
9. The idea of a system of financial penalties (“astreintes”) (paragraph ii of the Recommendation) and, in particular, the practicalities of such a proposal, merit very thorough examination. The CDDH notes that the European Union has already introduced a system of this kind, with the safeguard that a financial penalty can only be imposed after a second judicial decision (Article 228, paragraph 2, of the Treaty on European Union). Also the Human Rights Chamber for Bosnia-Herzegovina has ordered financial penalties in certain cases where it had known from previous experience that execution might be difficult. The introduction of such a system into the control mechanisms instituted by the Convention raises a number of questions. In particular, would such a system be efficient, would it be so outside certain exceptional situations (such as when a government is persistently refusing to fulfil its obligation to abide by a judgment)? Would, furthermore such a system be at all appropriate when the execution of the judgment requires the adoption of general measures, notably legislative ones, which may require lengthy procedures at the national level? In any event, persistent failure to execute judgments already carries financial consequences: the risk of being obliged to award just satisfaction to other persons affected by a persistent violation of the Convention may already bring with it a considerable economic pressure on the respondent state.
In the light of these considerations the CDDH is not convinced that the introduction of a system of monetary fines would bring about any important improvement.
iii. ask the governments of High Contracting Parties to make more use of their right to intervene in cases before the Court, so as to promote the erga omnes significance of the decisions of the Court;
10. The CDDH recalls that intervening third party states are not for this reason considered as parties to the procedure before the Court. They are therefore not more bound by the judgment of a case in which they have intervened than other states that have not intervened. Whether they intervene or not is consequently without relevance with respect to Article 46 of the Convention.
11. The CDDH accepts, however, that such interventions could encourage the Court to deliver judgments of principle, allowing therefore an improvement of the significance erga omnes of the judgments of the Court for the Parties to the Convention.
12. The recommendation to High Contracting Parties to make more frequent use of their right to intervene in cases before the Court (paragraph iii of the Recommendation), should be further clarified. In this respect, two different situations merit consideration. The first concerns the right of a third party intervention (Article 36, paragraph 1, of the Convention), in the strictest sense, according to which a Contracting state may intervene as a third party in a case brought by one of its nationals against another state. The second concerns the possibility for the President of the Court to invite any High Contracting Party to intervene in pending proceedings (Article 36, paragraph 2, of the Convention). The states have, accordingly, no general right themselves to intervene in pending proceedings against another state.
13. That being said, the introduction of such a right might well be examined in the context of a global reflection on the reform of the current system of human rights protection. The CDDH can see some advantages to several States intervening; but it should not be overlooked that such interventions could risk a lengthening of procedures, which would go against the objective of reducing the excessive length of procedures.
14. Finally, the CDDH would like to recall in this context the authority of the Court’s judgments: it is inherent in the control system set up by the Convention that any contracting State – independently of any possible participation in proceedings pending against another State – should examine and apply each judgment, in order to ensure constantly that its law and practice correspond to the Convention.
15. As to the other points evoked in the Recommendation which aim to improve the manner in which the Committee of Ministers exercises its powers under Article 46, paragraph 2, of the Convention, the CDDH recalls that during its 736th meeting (10-11 January 2001, item 4.3), the Ministers’ Deputies agreed to consider measures to follow up, as appropriate, the recommendations made by the Ministerial Conference with respect to the supervision of the execution of judgments of the Court. The CDDH notes, moreover, that the Deputies adopted at this same meeting (item 4.2) revised Rules for the application of article 46, paragraph 2, of the Convention. These rules, drawn up by the CDDH, mainly codify the existing practice of the Committee of Ministers in the application of this article, but also add new rules on transparency.
iv. when exercising its function under Article 46 paragraph 2 of the European Convention on Human Rights,
a. be more strict towards member states which fail in their obligation to execute judgments of the Court;
16. The CDDH certainly shares the objective of the Parliamentary Assembly, ie to guarantee the execution of the Court’s judgment by the respondent State. If this is not done, (in other words, if judgments are not executed or are executed in a too slow or unsatisfactory manner), the credibility of the system for the protection of human rights provided for by the Convention is at risk.
17. The CDDH recalls that from an overall perspective, the cases of unsatisfactory execution are rare and those of non-execution exceptional to the point that it is possible to assert that generally the respondent States execute judgments effectively and in good faith. When, exceptionally, they do not proceed with the execution as diligently as expected, this is usually due to objective difficulties with satisfying the requirements of the judgment (for example, the length of time needed to implement certain general measures, for example of a legislative or constitutional nature) or to a lack of clarity as to the requirements of a certain judgment (a lack of clarity, which in order to be overcome may require some input from other later judgments of the Court, possibly concerning other States).
18. Of course, manifest refusal to execute the Court’s judgments cannot be ruled out. However, rather than to provide for more “strictness” in the execution control, the CDDH invites the Committee of Ministers to develop a series of responses in case of slowness or negligence in the execution of the judgments (as was indicated by the Rome Conference) as well as objective criteria for the identification of these cases in order to apply the responses in a coherent manner. Furthermore, the CDDH is of the opinion that the judgments of the Court must be formulated with a constant concern for clarity.
19. The CDDH notes that the more general issue regarding the responses which should be at the disposal of the Committee of Ministers to ensure the execution of judgments is evoked also by the Ministers' Deputies in their decision at their 736th meeting (10-11 January 2001, item 4.3) on the follow-up to the aforementioned Ministerial Conference.
20. In this decision the Deputies agreed to consider measures to follow up, as appropriate, the recommendations made in Resolution I with respect to the supervision of the execution of judgments of the Court and to consider the general question of the effectiveness of the Council of Europe’s response to cases of failure of member States to abide by the human rights standards of the Council of Europe. The CDDH expresses its satisfaction with this. It suggests that the Ministers’ Deputies give priority to the examination of this item, which corresponds to the wishes expressed by the Parliamentary Assembly in the Recommendation which is the subject of the present opinion.
21. This being said, it is noted that the Committee of Ministers already appears to have developed a certain number of measures in order to ensure execution besides the regular examination of the cases at its meetings; in particular:
- Direct contacts (letters, meetings in person) at different levels with the national authorities concerned by the case, including contacts at the highest level between the Chairman of the Committee and the Minister of Foreign affairs of the respondent State;
- Different types of interim resolutions aimed at (i) informing; (ii) encouraging; and/or, if necessary, (iii) establishing the non-execution and where necessary, declaring its [the Committee of Ministers] resolve to ensure, with all means available to the Organisation, the respondent State's compliance with its obligations under the judgment, and calling upon the authorities of the member States to take such action as they deem appropriate to this end. [24]
b. ensure that measures taken constitute effective means to prevent further violations being committed;
22. The CDDH shares this concern. In this context, it would also be appropriate to give to the Secretariat of the Department for the execution of the Court’s judgments the means necessary, within the overall budget of the Council of Europe, to assist the Committee in the realisation of this important task.
c. keep the Assembly informed of progress in the execution of judgments, in particular by the more systematic use of interim resolutions setting a timetable for carrying out the reforms planned;
23. The CDDH notes with satisfaction the Parliamentary Assembly’s increasing interest in respect of the execution of the Court’s judgments. It understands the Assembly’s concern in being informed notably of the time-tables set for the adoption of general measures. However, it does not consider that the interim resolutions are conceived, generally, to serve this purpose.
24. The CDDH recalls that the Committee of Ministers decided in April 2001 to make public its annotated agenda for its human rights meetings. This document contains notably information on the state of progress of the execution of the cases. The CDDH would suggest that the Committee of Ministers ensure that this general and regular document, which is now available on the Committee of Ministers public web-site, also contains information with regard to the time-tables announced. The CDDH also suggests that the Committee of Ministers develop the information contained in this document into a data-base equally available on the internet and accompanied by an adequate search engine.
d. instruct the Secretary General to reinforce and improve its technical assistance programmes;
25. The CDDH cannot but share the political objective of reinforcing and improving the assistance programmes of the Council of Europe towards States Parties to the Convention. These programmes can contribute to improve the degree of respect for the Convention at a national level and, further to this, to lighten the workload of the organs of Strasbourg.
26. The CDDH considers, however, that this general policy objective does not, in principle, concern the activities of the Committee of Ministers under Article 46, paragraph 2 of the Convention, which relates to a specific problem with regard to a State. This being said, several assistance programmes have contributed in a significant way to resolving problems linked to execution. This possibility should therefore be taken into consideration and developed in the context of the examination of the various cases referred to the Committee for controlling the execution.
e. ask member states to assist persons or organisations who contribute to the diffusion of information and to the training of judges and lawyers.
27. According to the CDDH, the same considerations as under d., above, are valid, mutatis mutandis, towards this last request from the Assembly.
* * *
Appendix IV
Opinion concerning Recommendation 1492 (2001) of the Parliamentary Assembly
on the rights of national minorities
(Adopted by the CDDH during its 52nd meeting (6-9 November 2001))
1. The Steering Committee for Human Rights (CDDH) notes with interest Recommendation 1492 (2001) of the Parliamentary Assembly on the rights of national minorities, which is the subject of the present opinion. This opinion focuses on aspects of the recommendation which concern the CDDH’s particular area of interest.
2. The CDDH agrees with the Assembly that the effective protection of the rights of minorities in Europe is essential to the implementation of fundamental human rights, stability, democratic security and peace on the continent. Together with the Assembly, it emphasises that this protection is an integral part of the protection of human rights. It also agrees that member states should show a more generous attitude in the implementation of Council of Europe instruments in the field of minorities, as these instruments set minimum standards only.
3. The CDDH refers to the opinion it gave on Recommendation 1345 (1997) of the Parliamentary Assembly on the protection of national minorities, the Final Declaration and the Action Plan of the Second Summit of Heads of State and Government of the Council of Europe (Strasbourg, 10-11 October 1997), the “Political Declaration adopted by Ministers of Council of Europe member states on Friday 13 October 2000 at the concluding session of the European Conference against Racism” and Resolution II “Respect for Human Rights, a Key Factor for Democratic Stability and Cohesion in Europe: Current Issues”, adopted at the European Ministerial Conference on Human Rights (Rome, 3-4 November 2000) on the occasion of the 50th anniversary of the European Convention on Human Rights (4 November 2000).
* * *
Stepping up international co-operation
(see §12 (ii) of Recommendation 1492 (2001)
4. The CDDH agrees with the Assembly that it is necessary to further develop international co-operation in minority rights protection, both in their bilateral relations and at the level of European international organisations. It recalls that the Action Plan of the Second Summit of Heads of State and Government of the Council of Europe (Strasbourg, 10‑11 October 1997) stated that “the Heads of State and Government, taking into account the imminent entry into force of the Framework Convention for the Protection of National Minorities, resolve to complement the Council of Europe’s standard-setting achievements in this field through practical initiatives, such as confidence-building measures and enhanced co‑operation, involving both governments and civil society”.
5. It believes that intergovernmental co-operation activities are essential in this field. The CDDH therefore greatly regrets that the work of its Committee of Experts on Issues Relating to the Protection of National Minorities (DH-MIN) has been suspended since 2000 as the human and budgetary resources of the Secretariat had to be used urgently to reinforce those of the Advisory Committee on the Framework Convention. The DH-MIN had become an excellent forum for exchanging views, experiences and good practices, in order to favour the effective implementation of the international standards in this field. In addition, it always associated representatives of the civil society to its work. Consequently, the CDDH expresses the wish that financial and human resources be quickly made available to enable DH-MIN to resume its work.
6. The CDDH also takes note of the projects devised by the Council of Europe under the Stability Pact for South-Eastern Europe, and in particular three projects concerning national minorities (review of non-discrimination policies, acceptance and implementation of existing norms and bilateral co-operation agreements), and the awareness-raising campaign, “Link Diversity”. These initiatives offer a new framework for the implementation of international co‑operation. The CDDH also stresses that other co-operation activities are in progress (round tables, study visits and expert appraisals, especially on draft legislation concerning minorities). These activities are designed to raise awareness of the standards laid down in the Framework Convention for the Protection of National Minorities and to ensure that they are applied.
Increase in the number of states parties
to the Framework Convention for the Protection of National Minorities, withdrawal of reservations and declarations
(see §12 (iii) (iv) of the Recommendation)
7. The aforementioned Ministerial Conference in Rome invited those member states which had not already done so to “consider or reconsider the possibility of becoming a Party to the Framework Convention for the Protection of National Minorities (1995) and the States Parties to co-operate fully with the monitoring mechanism set up by this Convention” (see paragraph 25 of Resolution II adopted by the Conference). The CDDH, which was instructed by the Ministers’ Deputies on 10-11 January 2001 to implement several of the decisions taken at the Conference, intends to hold regular exchanges of views on the state of signatures and ratifications of the Framework Convention in order to encourage the states concerned to sign and/or ratify this convention as quickly as possible. In the absence of a definition of the notion national minority in the Framework Convention, the CDDH considered it useful to maintain the possibility for the Parties to this instrument to make reservations or declarations relating to the personal scope of the Framework Convention. Nevertheless, the CDDH shares the opinion of the Advisory Committee according to which, as regards reservations/declarations, the Parties to the Framework Convention should “exercise great restraint” (see § 6 of the opinion of the Advisory Committee on Recommendation 1492 (2001); document ACFC (2001) 3).
Increase in human and financial resources
(see §12 (vi) of the Recommendation)
8. Although this issue does not fall within its competence, the CDDH fully endorses the Parliamentary Assembly’s proposal that human and financial resources should be increased to facilitate the implementation of the Framework Convention for the Protection of National Minorities.
Entry into force of Protocol No. 12
to the European Convention on Human Rights
(see §12 (vii) of the Recommendation)
9. When in force Protocol 12 should be such as to extend protection against all forms of discrimination and therefore, in the light of the interpretation given to it by the Court, help to improve certain aspects of protection of persons belonging to national minorities. The CDDH is keeping under close review the state of signatures and ratifications of the Protocol and regularly asks its members for an update.
Publication and dissemination of the work
of the monitoring machinery set up within the Council of Europe
(see §12 (viii) of the Recommendation)
10. The CDDH is very interested to note that the Committee of Ministers has already started discussing the initial opinions of the Advisory Committee on the Framework Convention for the Protection of National Minorities. In this context, it warmly welcomes the steps taken by the Finnish, Hungarian, Liechtenstein and Slovak Governments to make these opinions public before the Committee of Ministers has even adopted its own conclusions and recommendations concerning them. The CDDH believes that this practice helps to encourage useful debate at national level on issues raised in these opinions, and that this example will be followed by the other states parties to the Framework Convention, it being understood that states will first have had opportunity to address any inaccuracies. It also hopes that the period between the opinion of the Advisory Committee on the Framework Convention and the adoption of conclusions and recommendations by the Committee of Ministers will be as short as possible.
11. The CDDH endorses the Parliamentary Assembly’s proposal that there should be speedy publication and general dissemination of the results of the opinions and reports of the Advisory Committee on the Framework Convention for the Protection of National Minorities and of the Committee of Experts of the European Charter for Regional or Minority Languages. Public access to information in this field is a requirement of a pluralist, democratic society, as pointed out at the Ministerial Conference in Rome, and may be a force for democratic stability and cohesion in Europe.
12. The CDDH also points out that questions concerning national minorities are raised in the Council of Europe’s human rights co-operation and awareness-raising programmes (information available on the Internet, information meetings in the countries concerned, etc).
Strengthening these mechanisms
(see §12 (ix) of the Recommendation)
13. The CDDH notes that the monitoring machinery initially set up by the Framework Convention for the Protection of National Minorities (Articles 24 to 26) has sometimes been thought too limited. It notes, however, that both the monitoring machinery and practice have expanded considerably since the adoption of the Framework Convention and are continuing to expand. It refers to Resolution (97) 10 (“Rules adopted by the Committee of Ministers on the Monitoring Arrangements under Articles 24 to 26 of the Framework Convention for the Protection of National Minorities”), adopted on 17 September 1997, to the Advisory Committee’s Rules of Procedure, and to subsequent developments such as the practice of visits to countries and the authorisations adopted by the Committee of Ministers enabling the Advisory Committee to obtain information from other sources than governmental and to held meetings with such sources in the context of the visits, as well as the constructive dialogue that developed between the Advisory Committee and the governments of Contracting Parties.
Possible drafting of an additional protocol
to the Framework Convention
(see §12 (x) of the Recommendation)
14. The CDDH notes the recommendation concerning the possible drafting, of an additional protocol to the Framework Convention which would empower the European Court of Human Rights, or a general Council of Europe judicial authority, to give advisory opinions on the interpretation of this Framework Convention.
15. The CDDH recognises the existence of similarities between some of the rights safeguarded by the Framework Convention and other rights protected by the European Convention on Human Rights[25], but the nature of their respective provisions are different: most of those contained in the Framework Convention are programmatic provisions defining certain objectives that the Parties undertake to pursue and that, in principle at least, are not directly justiciable, as they imply that the legislator, the government or the regional or local authorities take action. The Court recognises quite openly this problem in paragraph 4 of the opinion it gave on 2 April 2001 on Recommendation 1492 (2001), when questioning “whether the interpretation of such provisions sits well with the judicial function of the Court”.[26]
16. The CDDH notes that the Court declares that it would in principle be willing to undertake an interpretative role in this field (see § 9 in the opinion of the Court). It underlines that this role would be optional and that it could refrain from giving its opinion, on a particular occasion, not only when an issue could be considered non-justiciable but also “for other reasons” (id., § 6), which may possibly be linked to its judicial function under the ECHR.[27]
17. For these reasons, the CDDH does not consider it advisable to envisage additional competences for the Court to be laid down in an additional protocol. However, it considers it necessary to consolidate the mechanism of the Framework Convention and the role of the Advisory Committee, including as regards the legal interpretation of the provisions of the Framework Convention.
Possible drafting of an additional protocol
to the European Convention on Human Rights
(see §12 (xi) of the Recommendation)
18. The CDDH notes that the Parliamentary Assembly reiterates the proposals it made in Recommendation 1201 (1993) concerning an additional protocol on the rights of minorities to the European Convention on Human Rights. These proposals concerned, inter alia, the drafting of an additional protocol which would include the definition of national minority set out in Recommendation 1201 (1993).
19. The CDDH recalls that, at the First Summit of Heads of State and Government of the Council of Europe (Vienna, 8-9 October 1193), the Committee of Ministers was instructed “to begin work on drafting a protocol complementing the European Convention on Human Rights in the cultural field by provisions guaranteeing individual rights, in particular for persons belonging to national minorities”. In January 1996, the Committee of Ministers decided to suspend the work on the elaboration of such an additional protocol, position which was reiterated in 1999, when it considered that the “approach to an additional protocol recommended by the Parliamentary Assembly, notably in Recommendation 1201, had proved not to be feasible for several reasons, inter alia because it contains certain elements (the definition of a national minority, the nature and scope of certain rights, etc) which do not muster the general support of all member states”[28]. The Committee of Ministers added that its decision to suspend the work does not “imply a final decision on an additional protocol, but indeed leaves open the possibility of re-examining the question in the light of subsequent experience with the implementation of existing standards”.
20. The CDDH believes that the reasons for this decision are still valid. It considers it somewhat premature to re-open discussions on the draft additional protocol proposed by the Parliamentary Assembly.
21. Finally, the CDDH points out that Article 1 of the aforementioned Protocol No. 12 to the European Convention on Human Rights stipulates that “the enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. Consequently, once this additional protocol comes into force[29], any discrimination against a person belonging to a national minority, including discrimination based on the fact that they belong to such a minority, would be covered by the general ban on discrimination.
* * *
Appendix V
Additional rights of persons deprived of their liberty - Activity report
(Adopted by the CDDH during its 52nd meeting (6-9 November 2001))
1. Following a proposal made by the Italian Presidency (contained in Appendix I), the Ministers’ Deputies decided during their 720th meeting (13 September 2000, item 4.8; Decision No. CM/760/13092000) to assign ad hoc terms of reference to the CDDH to “study the advisability and feasibility of preparing a draft Protocol to the European Convention on Human Rights securing certain additional rights for persons deprived of their liberty and, if appropriate, to draw up such a Protocol.”
2. It appears from the terms of reference, which are contained in Appendix II, that the CDDH is to submit an interim report of activities on this matter prior to 31 December 2001 and, if appropriate, to draw up such a Protocol by the end of the year 2002.
3. The CDDH held a first discussion on the feasibility of drafting a Protocol to the Convention on this issue during its 51st meeting ( 28 February - 2 March 2001). As indicated in the above-mentioned terms of reference, it based its work on the text prepared by the Committee of Experts for the Development of Human Rights (DH-DEV) in 1994, which is contained in Appendix III.
4. The discussion continued during the 52nd meeting of the CDDH (6-9 November 2001) during which the Committee adopted the present activity report for transmission to the Ministers’ Deputies.
5. The CDDH considered a number of recent judgments and decisions of the European Court of Human Rights relating to the treatment of persons deprived of their liberty. Moreover, it had at its disposal a submission made by Amnesty International on a draft protocol to the Convention containing additional rights for persons deprived of their liberty dated 27 February 2001. It was also informed that the European Committee on Crime Problems (CDPC) has approved the proposal made by the Council for Penological Co‑operation (PC-CP) to update the European Prison Rules[30] and that draft terms of reference to that end would be considered by the Committee of Ministers within the coming months.
6. The CDDH furthermore studied some recent case law developed by the European Committee of Social Rights under Article 17 of the European Social Charter, which guarantees the right of mothers and children to social and economic protection. It has taken note of the general observations[31] made on this Article as regards the placement of children and young persons in institutions and as regards the protection of young offenders.
7. As a starting point, the CDDH agrees with the importance of providing far-reaching human rights protection for persons deprived of their liberty. It has had the opportunity to consider this issue in depth on several occasions in the past.[32]
8. In the opinion of the CDDH, the text prepared by DH-DEV in 1994 was ambitious and covered a number of precise and fundamental rights for persons deprived of their liberty. However having studied the development of the case-law of the Court, including the very recent case-law, the CDDH has observed that the various provisions of the Convention that are of relevance as regards persons deprived of their liberty, have been given such an interpretation of the Court as to cover to a large extent the draft provisions contained in the DH-DEV draft protocol. An additional protocol based on that text would therefore largely amount to codification of case-law.
9. The CDDH recognises the usefulness of an instrument containing clear and precise provisions, which can be relied upon by the directly interested parties before the European Court of Human Rights and which can also be of use to legislative bodies, prison administrations and other bodies responsible for the treatment of persons deprived of their liberty. It is nevertheless concerned that a protocol based on the evolving case-law of the Court would risk fixing it for the future, which would not be the sought-after aim and which may, in fact, have the effect of weakening the protection.
10. To identify a number of other precise and justiciable rights to include in a protocol to the Convention does not appear to the CDDH to be a good solution either as these will in such case almost certainly be less significant than the rights identified by the DH-DEV. The elaboration of a protocol to the Convention with a catalogue of perhaps detailed, but less important rights might, in the view of the CDDH, confuse those who were to be guided by the text and might also, again, risk fixing the Court’s position to the detriment of the development of human rights protection in this field.
11. In this context, the CDDH observes that during an exchange of views that it held at its 44th meeting in June 1998, with a number of NGOs (Amnesty International, the Association for the prevention of torture, Penal Reform International and the International Commission of Catholic Prison Pastoral Care), the Secretariat of the United Nations Committee against Torture and the Secretariat of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), those present agreed that it was necessary to strengthen international rules governing the rights of persons deprived of their liberty. In the opinion of some experts the problems linked to the drafting of an instrument originated in the fact that the CDDH had tried to identify justiciable rights to be included in an additional protocol to the Convention and that a different type of instrument may be preferable.[33]
12. With this in mind, the CDDH supports the plans to revise the Council of Europe Recommendation on the European Prison Rules, which contains guidelines to Governments for the handling of prisoners, while underlining the importance of such an activity being undertaken in close cooperation with the CPT and with due consideration being given to developments in the Court’s case-law. The CDDH considers that the draft protocol elaborated by the DH-DEV should be used in that context. It would moreover like to be able to contribute to this work at one stage or another. The CDDH furthermore notes the recent adoption of another Council of Europe Recommendation, the European Code of Police Ethics, which deals, inter alia, with the treatment by the police of persons deprived of their liberty, largely following the principles developed by the CPT. Finally, it notes that the Steering Committee on Bioethics (CDBI) is elaborating a draft recommendation on psychiatry and human rights, which will deal inter alia with the treatment of persons deprived of their liberty because of mental illness.
13. Moreover, the CDDH has studied the possibility to include a general provision similar to Article 10 of the United Nations Covenant on Civil and Political Rights[34] in a protocol, requiring that persons deprived of their liberty be treated with humanity and with respect for their dignity. This idea was raised by the Court in February 1997 in its opinion on the draft protocol elaborated by a working group of the CDDH[35], taking the CDDH’s discussions and the draft protocol prepared by the DH-DEV as a basis, and was also referred to by Amnesty International.
14. The CDDH observes, however, that the Court’s case-law under Article 3 has developed very far in that direction (see the Ribitsch v. Austria judgment of 4 December 1995, para.38, the Tekin v. Turkey judgment of 9 June 1998, para. 53, the Keenan v. the United Kingdom judgment of 3 April 2001, para.112 and the Peers v. Greece judgment of 19 April 2001, para. 75). It therefore has doubts as to whether such a general provision would add anything substantial to the protection already afforded by the Convention.
15. Consequently, the CDDH considers that in the light, in particular, of the rapid and continuing developments in the Court’s case-law, there is no need at this stage for a protocol containing additional rights for persons deprived of their liberty. In reaching this conclusion, the CDDH underlines the importance of the work carried out also within the framework of other Council of Europe human rights protection instruments and mechanisms to secure an efficient and adequate protection of persons deprived of their liberty. The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment plays the most significant role in this respect as a non-judicial and mainly preventive body and contributes greatly to the establishment of general guidelines for conditions of persons deprived of their liberty not least through the Annual General Reports adopted by the CPT. The foreseen updating of the European Prison Rules, which provide guidance to governments and prison administrations, is another initiative with a similar purpose.
* * *
Appendices
I. Proposal made by the Italian Presidency (13 September 2000)
II. Ad hoc terms of reference given to the CDDH (13 September 2000)
III. Draft Protocol prepared by the DH-DEV in 1994
Additional rights of persons deprived of their liberty - Activity report (continued)
(appendix I)
Draft Protocol to the European Convention on Human Rights securing certain additional rights to persons deprived of their liberty
Proposal made by the Italian Presidency (13 September 2000)
One of the priority items on the programme of the Italian chairmanship of the Council of Europe's Committee of Ministers is to devote particular attention to human rights. In this context it proposes the drafting of an additional Protocol to the European Convention on Human Rights securing certain additional rights to persons deprived of their liberty.
This is not a new theme. Such a theme was indeed, advanced in 1988 and in the following years, but political conditions in the middle of the 90s did not allow to draft a satisfactory text.
In our view, the time is ripe for starting again the consideration of the draft. Penal matters have received considerable attention from the international community and international standards for the treatment of prisoners have been adopted both at global and at Council of Europe level. The texts concerned are undoubtedly of high legal and moral quality. Credit must also be given to the effective action taken by the Committee for the Prevention of Torture in the field of prevention. It is our belief, however, that the time is ripe for the preparation of a binding instrument which can be relied upon by the directly interested parties before the European Court of Human Rights. The drafting of such a binding text would complete and strengthen the work already accomplished in this matter.
A resumption of this activity would constitute a sign of vitality on the part of the Council of Europe and would raise its profile with the public at large. Such an initiative would be particularly well received by the world of the NGOs. It should not be forgotten that one of these NGOs, Amnesty International, has ceased to participate in the activities of the Council of Europe since work on the protocol in question was suspended.
Past experience, however, enjoins us to be prudent. That is why we propose to the Committee of Ministers that the CDDH be issued with a remit which will not demand an immediate drafting of a Protocol but will also include an assessment of its feasibility. The duration of the remit issued to the CDDH could be two years. The CDDH should receive its remit in time to enable it to start to implement it at its next plenary meeting from 3 to 6 October 2000.
It would not be appropriate to start work on the basis of the draft which has been submitted to the Court. We consider that the CDDH's discussions should start with the text drawn up by the Committee for the Development of Rights under the Convention (DH-DEV) and contained, together with a draft explanatory report, in document DH-DEV (94) 7. The document of the DH-DEV is appended to the present document.
* * *
Additional rights of persons deprived of their liberty - Activity report (continued)
(appendix II)
Ad hoc terms of reference given to the CDDH concerning the Draft Protocol to the European Protocol to the European Convention on Human Rights securing certain additional rights to persons deprived of their liberty
Decision No. CM/760/13092000
Ad hoc terms of reference
1. Name of relevant committee:
Steering Committee for Human Rights (CDDH)
2. Source of terms of reference:
Committee of Ministers
3. Completion date:
31 December 2002
4. Terms of reference:
On the basis of the text prepared by the Committee of Experts for the Development of Human Rights (DH-DEV) in 1994 (see Appendix to CM(2000)129), to prepare a study of the advisability and feasibility of drafting a Protocol to the European Convention on Human Rights securing certain additional rights to persons deprived of their liberty; to submit an interim report of activities on this matter prior to 31 December 2001 and, if appropriate, to draw up such a Protocol by the end of the year 2002.
5. Other committee(s) to be informed of terms of reference:
-
Additional rights of persons deprived of their liberty – Activity report (continued)
(appendix III)
Draft Protocol to the European Convention of Human Rights guaranteeing certain additional rights to persons deprived of their liberty
The member States of the Council of Europe signatory hereto,
Being resolved to take further steps to ensure the collective enforcement of certain rights and freedoms by means of the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter referred to as “the Convention”).
Have agreed as follows:
Article 1 – Right to be informed
A person deprived of his liberty shall be informed promptly, in a language he understands, of the reasons for the deprivation of his liberty, of his rights relating thereto and how to avail himself of such rights.
Article 2 – Right to inform others of deprivation of liberty
1. A person deprived of his liberty shall have the right to promptly inform a lawyer, or to have him promptly informed, of the fact and place of his deprivation of liberty and every change thereof.
2. A person deprived of his liberty shall have, in addition, the right to promptly inform a member of his family or another person of his choice, or to have that person promptly informed, of the fact and place of his deprivation of liberty and every change thereof.
3. A person deprived of his liberty abroad shall have the right to promptly inform diplomatic or consular representatives of his own country, or, where appropriate, a national or international organisation whose aim is to serve the interests of refugees or stateless persons, or to have them promptly informed, of the fact and place of his deprivation of liberty and every change thereof.
4. The exercise of the right laid down in paragraph 2 may be restricted as prescribed by law and when it is necessary in a democratic society in the interests of a preliminary investigation or for the prevention of crime.[36]
Article 3 (former Article 5) – Right to instruct a lawyer
1. Without prejudice to the rules concerning granting of legal aid, a person deprived of his liberty shall have the right to instruct, at his own expense, a lawyer of his choice and to communicate with him on a confidential basis.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of a preliminary investigation of for the prevention of crime. Such restrictions shall be subject to judicial review.
Article 4 (former Article 6) - Right to the assistance of an interpreter
A person deprived of his liberty shall be entitled to the free assistance of an interpreter in a language he understands, for the exercise of rights in relation to the deprivation of his liberty and when the interests of justice so require.
Article 5 (former Article 7) – Right to medical care
A person deprived of his liberty shall have the right to adequate medical care on the same conditions as are in general available to any citizen, subject to reasonable restrictions imposed by the conditions of the deprivation of liberty.
Article 6 (former Article 4) – Medical research or experimentation
A person deprived of his liberty shall not be subjected to medical research or experimentation. He may receive experimental medical treatment provided that he has given his free and informed consent and provided that the treatment is reasonably expected to benefit his health.
Article 7 (former Article 3) – Disciplinary punishment
1. A person deprived of his liberty shall not be submitted to a disciplinary punishment unless the conduct for which he is held responsible constitutes a disciplinary offence and unless such conduct, the punishment and its duration as well as the authority competent to impose such punishment are specified by law.
2. The person concerned shall have the right to have the decision reviewed by another competent authority without undue delay.
3. In the case of solitary confinement or of another disciplinary punishment of comparable gravity, the person concerned shall have the right to have the decision reviewed by an independent and impartial authority without undue delay.[37]
Article 8 – Right to submit a complaint
A person deprived of his liberty shall have the right to confidentially submit a complaint to the competent authority concerning the manner in which he is treated, and to receive a reply within a reasonable period of time.
Article 9 – Territorial application
1. Any State may at the time of signature or when depositing its instrument of ratification, acceptance or approval, specify the territory or territories to which this Protocol shall apply and state the extent to which it undertakes that the provisions of this Protocol shall apply to such territory or territories.
2. Any State may at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this Protocol to any other territory specified in the declaration. In respect of such territory the Protocol shall enter into force on the first day of the month following the expiration of a period of two months after the date of receipt by the Secretary General of such declaration.
3. Any declaration made under the two preceding paragraphs may, in respect of any territory specified in such declaration, be withdrawn or modified by a notification addressed to the Secretary General. The withdrawal or modification shall become effective on the first day of the month following the expiration of a period of two months after the date of receipt of such notification by the Secretary General.
4. A declaration made in accordance with this Article shall be deemed to have been made in accordance with paragraph 1 of Article 63 of the Convention.
Article 10 – Relationship to the Convention
As between the State Parties, the provisions of Articles 1 to 9 of this Protocol shall be regarded as additional Articles to the Convention and all the provisions of the Convention shall apply accordingly.
Article 11 – Signature and ratification
This Protocol shall be open for signature by member States of the Council of Europe which have signed the Convention. It is subject to ratification, acceptance or approval. A member State of the Council of Europe may not ratify, accept or approve this Protocol without previously or simultaneous ratifying the Convention. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.
Article 12 – Entry into force
1. This Protocol shall enter into force on the first day of the month following the expiration of a period of two months after the date on which … member States of the Council of Europe have expressed their consent to be bound by the Protocol in accordance with the provisions of Article 11.
2. In respect of any member States which subsequently expresses its consent to be bound by it, the Protocol shall enter into force on the first day of the month following the expiration of a period of two months after the date of the deposit of the instrument of ratification, acceptance or approval.
Article 13 – Depositary functions
The Secretary General of the Council of Europe shall notify all the member States of the Council of Europe of:
a. any signature;
b. the deposit of any instrument of ratification, acceptance or approval;
c. any date of entry into force of this Protocol in accordance with Articles 9 and 12;
d. any other act. Notification or declaration relating to this Protocol.
In witness whereof the undersigned, being duly authorised thereto, have signed this Protocol.
Done at Strasbourg, this … day of …., in English and in French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe.
[1] Adopted in Aarhus, Denmark, on 25 June 1998.
[2] Adopted at Aarhus, Denmark, on 25 June 1998.
[3] At the 613rd meeting (18-19 and 23 December 1997) of the Ministers' Deputies.
[4] It might be noted that a handbook published in 1997 under the auspices of the Council of Europe states that “administrative authority” means “any entity or person in so far as these are entitled to take decisions or measures which constitute an administrative act.” (see “The Administration and you - A handbook”, Council of Europe Publishing 1997, p. 11).
[5]ETS: European Treaty Series
[6] Adopted at Aarhus, Denmark, on 25 June 1998. Article 4 paragraph 4 reads: “A request for environmental information may be refused if the disclosure would adversely affect: … (h) The environment to which the information relates, such as the breeding site of rare species”.
[7]European Court of Human Rights, Herczegfalvy v. Austria, 24 September 1992, Series A No. 244, §82.
[8] “The right to life is an inalienable attribute of human beings and forms the supreme value in the hierarchy of human rights”, European Court of Human Rights, Streletz, Kessler and Krentz v. Germany, 22 March 2001, §94; see also K.-H W v. Germany, 22 March 2001, §96.
[9] See the decision of the European Commission of Human Rights in the case of Widmer v. Switzerland, No. 20527/92.
[10] “(Article 2) not only safeguards the right to life but sets out the circumstances when the deprivation of life may be justified; Article 2 ranks as one of the most fundamental provisions in the Convention - indeed one which, in peacetime, admits of no derogation under Article 15. Together with Article 3 of the Convention, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. As such, its provisions must be strictly construed”, European Court of Human Rights, McCann and others v. the United Kingdom, 27 September 1995, §147.
[11] Paragraph 9 (c) of the Recommendation reads as follows: The Assembly therefore recommends that the Committee of Ministers encourage the member states of the Council of Europe to respect and protect the dignity of terminally ill or dying persons in all respects: (…)(c.) by upholding the prohibition against intentionally taking the life of terminally ill or dying persons, while: (i.) recognising that the right to life, especially with regard to a terminally ill or dying person, is guaranteed by the member states, in accordance with Article 2 of the European Convention on Human Rights which states that "no one shall be deprived of his life intentionally"; (ii.) recognising that a terminally ill or dying person’s wish to die never constitutes any legal claim to die at the hand of another person; (iii.) recognising that a terminally ill or dying person’s wish to die cannot of itself constitute a legal justification to carry out actions intended to bring about death.
[12] Herczegfalvy v. Austria, §82.
[13] Ibid. The Court pointed out that it had to satisfy itself that this necessity had been convincingly shown to exist.
[14] European Court of Human Rights, Ireland v. the United Kingdom, 18 January 1978, Series A No. 25, §162.
[15] European Court of Human Rights, A. v. the United Kingdom, 23 September 1998, § 22. States must consequently take legislative or other measures to ensure that individuals within their jurisdiction, especially the most vulnerable - which includes the terminally ill and the dying - are not subjected to inhuman or degrading treatments. Moreover, in a case involving very exceptional circumstances, the Court pointed out that the expulsion of a patient in the terminal phase of AIDS to a country where health conditions were unfavourable would constitute inhuman treatment, given that his expulsion would expose him to a real risk of dying in particularly painful circumstances; see European Court of Human Rights, D. v. the United Kingdom, 2 May 1997, Reports 1997/III, No. 37, §53-54.
[16] European Court of Human Rights, Herczegfalvy v. Austria, §86; European Commission of Human Rights , X v. Austria No. 8278, 18 DR 154 at 156 (1979) (bloodtest), Peters v. Netherlands No. 21132/93, 77-A DR 75 (1994) (urine test).
[17] The World Health Organisation defines palliative care as “the active total care of patients whose disease is not responsive to curative treatment. Control of pain, of other symptoms and of psychological, social and spiritual problems is paramount. The goal of the palliative care is achievement of the best possible quality of life for patients and their families" (quoted in the Parliamentary Assembly of the Council of Europe, Report on the Protection of the human rights and dignity of the terminally ill and the dying, Doc. 8421, 21 May 1999, by Ms Edeltraud GATTERER).
[18] This work is mentioned in the interim reply adopted by the Ministers’ Deputies on 30 October 2000.
[19] For example, for Articles 9 and 11 of the Convention (respectively, the freedom not to have a religion and freedom not to associate with others). (See, for example, the European Court of Human Rights, Buscarini and others v San Marino, 18 February 1999, § 34, and European Court of Human Rights Sigurdur Sigurjonsson v. Iceland, 30 June 1993, § 35)
[20] The ad hoc terms of reference given to the CDDH specify that it is asked to give its opinion notably in the light of the opinion of the European Court of Human Rights. To this effect the CDDH has noted that the President of the Court, Mr Luzius Wildhaber, replied, on 28 March 2000, to a letter from the Chairman of the Committee on Legal Affairs and Human Rights, Mr Gunnar Jansson, asking for comments on a memorandum prepared by the rapporteur of the above-mentioned committee (M. Erik Jurgens). Moreover, the President of the Court gave a speech on the execution of judgments of the Court to the Parliamentary Assembly (28 September 2000). The CDDH has taken into account the above-mentioned letter and the speech when elaborating the present opinion.
[23] Report of the 50th meeting (26-28 September 2001), document DH-PR (2001) 10, Appendix III, § 3.
[24] See Interim Resolution Res DH (2001) 80 concerning the judgment of the Court of 28 July 1998 in the case of Loizidou against Turkey.
[25] The CDDH recalls in this respect Article 23 of the Framework Convention according to which “the rights and freedoms flowing from the principles enshrined in the present framework Convention, in so far as they are subject of a corresponding provision in the Convention for the Protection of Human Rights and Fundamental Freedoms, or in the Protocols thereto, shall be understood so as to conform to the latter provisions”.
[26] See the Opinion of the European Court of Human Rights on the Draft Additional Protocol to the Framework Convention for the Protection of National Minorities (on the interpretation of the Convention) adopted during the plenary administrative session held on 2 April 2001, § 4.
[27] In this respect the CDDH the proposal for an amendment made by the Italian authorities on 13 September 2001 aiming at specifying in the text of the draft additional protocol to the Framework Convention that the Court's role of interpreting should apply “in so far as this does not prejudice the exercise of its judicial function.”
[28] See the decision adopted by the Ministers’ Deputies at their 656th meeting on 19 January 1999, item 4.1.
[29]Opened for signature by Council of Europe member states on 4 November 2000 (at 24 July 2001, one state had ratified the additional protocol and 26 had signed it).
[30] Contained in Recommendation No. R (87)3.
[31] Conclusions XV-2, pp. 30-32.
[32] See document CDDH (2001) 11.
[33] Document CDDH (98) 15, para.61.
[34] Article 10 reads as follows:
“All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”
[35] DH-PPL-GT (95)3.
[36] It is left to the CDDH to decide whether to extend the application of paragraph 4 to the whole article as proposed by some experts.
[37] It is left for the CDDH to decide whether to include this paragraph to which some experts were opposed.