Doc. 10024

18 December 2003

3rd Annual Report on the Activities of the Council of Europe Commissioner for Human Rights (1 January – 31 December 2002)1

 

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Rudolf Bindig, Germany, Socialist Group

 

Summary

In June 2003 the Council of Europe Commissioner for Human Rights, Mr Alvaro Gil-Robles, presented his third annual report, for the year 2002, to the Assembly. The Assembly, well aware of the great importance of the Commissioner’s office to the human rights protection system of the Council of Europe, is grateful for this report. It congratulates him for having developed the range of activities of his office in a way which encompasses all elements of his mandate in a varied and flexible manner and encourages him in his activities during the remainder of his mandate.

Taking note of the difficulties facing the Commissioner and his office in their work, notably the variable extent to which member States implement his recommendations and the inadequate level of funding made available to his office, the Assembly determines to take specific action and proposes concrete measures intended to provide political support to the Commissioner’s work and to enhance his office’s capacities. These include recommending that all member States implement the Commissioner’s recommendations fully and expeditiously, subject to supervision by the Committee of Ministers’ monitoring activities. The Assembly also resolves to continue its existing forms of engagement and co-operation with the Commissioner, including participation in activities organised by his office.

In addition, the Assembly repeats certain proposals it has made with respect to the Commissioner in the past, suggesting a possible role before the European Court of Human Rights and revision of the terms of reference so as to enhance the independence and effectiveness of the institution.

I.        Draft recommendation

 

1.       The Assembly takes note of the 3rd Annual Report of the Commissioner for Human Rights (“the Commissioner”) on his activities in 2002 and congratulates him for having developed the range of activities of his office in a way which encompasses all elements of his mandate in a varied and flexible manner. It appreciates the dynamic interpretation of the Commissioner’s terms of reference, notably that of Article 8 paragraph 1 as allowing the Commissioner to issue opinions, including at his own initiative.

2.       The Commissioner’s proposition that the Assembly could add its political weight to the former’s recommendations deserves careful consideration. Where the Commissioner has determined that a State has not made proper efforts to implement a recommendation, therefore, the Assembly invites the Commissioner to inform it accordingly so that it may then take appropriate action.

3.       The biannual round-tables involving Ombudsmen and other human rights institutions, organised by the Commissioner, are encouraged by the Assembly, which welcomes the Commissioner’s practice of inviting the Assembly to participate to such events.

4.       The Commissioner’s annual reports are greatly appreciated by the Assembly, which encourages its Committees – notably the Committee on Legal Affairs and Human Rights and the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe – to refer to and make full use of them. In particular the Assembly resolves to take appropriate follow-up action to those of the Commissioner’s reports which are addressed to it, and especially to acknowledge and, where relevant, to respond to those reports which have been specifically requested from the Commissioner.

5.       The Assembly invites the Commissioner to play a more active role, in co-operation with its own relevant Committees and with the Committee of Ministers, in promoting those legislative changes in member countries that appear necessary following judgments of the Court, thereby helping to stem at source the flow of repetitive cases.

 

6.       The Assembly therefore calls on the Council of Europe member States to implement fully and expeditiously the recommendations addressed to them by the Commissioner; this recommendation being addressed especially to Georgia and Moldova, which were singled out for particular criticism in this respect by the Commissioner’s annual report of 2002.

7.       Moreover, the Assembly calls on the Committee of Ministers:

a.       to review the terms of reference of the Commissioner and to amend the European Convention on Human Rights so as to enable the Commissioner, when appropriate, to bring cases before the Court (actio popularis), as already proposed in Assembly Recommendation 1606 (2003),

b.       alternatively, as an interim measure, to review the terms of reference of the Commissioner and to amend the European Convention on Human Rights so as to allow the Commissioner to intervene before the Court in pending cases when appropriate;

c.       to incorporate the following amendments during revision of the terms of reference of the Commissioner, as previously suggested in Assembly Opinion 210 (1999):

d.       to include in its monitoring activities the follow-up of the recommendations addressed to member States by the Commissioner;

e.       to endow the Commissioner with such additional resources as are necessary to enable his office to cope with the heavy work programme which arises from the existing terms of reference alone (including for example the enhanced role in crisis situations, as well as from additional tasks already assumed, such as the bi-annual round-tables of national ombudsmen institutions) and which will be increased by any additional responsibilities that may arise. Whilst welcoming any voluntary contributions made by member States – provided that there are no conditions attached that could jeopardise the independence of the institution – the Assembly draws particular attention to the special need for predictability and stability in the resources made available of the office of the Commissioner.

II.       Explanatory memorandum

by Mr Bindig, Rapporteur

A.       Introduction

1.       Purpose of this “report on a report”

1.       The current Council of Europe Commissioner for Human Rights, Mr Alvaro Gil-Robles (“the Commissioner”), reached the half-way stage of his six-year mandate in 2002, and earlier this year produced his third annual report covering the period January – December 2002.

 

2.       This is a good opportunity to draw renewed political attention to the important work of the Commissioner; to evaluate the results obtained so far, as set against the expectations at the time of the creation of this office; and to draw some lessons for the future development of the Commissioner’s activities. For these reasons, the Bureau of the Assembly on 29 September 2003 invited the Committee of Legal Affairs and Human Rights to prepare a report on the Commissioner’s 2002 annual report, to be debated during the Assembly’s January 2004 plenary part-session. The Rapporteur was particularly pleased to be given charge of this report, since he had also been Rapporteur when the Assembly gave its Opinion on the Committee of Ministers’ draft terms of reference for the Commissioner2.

 

3.       This is the first occasion on which the Assembly has responded, in the form of a written text, to an annual report of the Commissioner. In view of its purpose, the present report will be divided into two main parts: a summary of the Commissioner’s activities during 2002, as set against the terms of the mandate; and the assessment of the results achieved so far, with an outlook on possible future developments.

 

4.       It should be stated at the outset, however, that out of respect for the Commissioner’s independence, this report will not engage in criticism of his substantive findings, conclusions or recommendations.

 

2.        Reminder of the Commissioner’s duties and mandate

5.       The Office of the Council of Europe Commissioner for Human Rights (“the Commissioner”) owes its existence to Committee of Ministers Resolution (99) 50. According to Article 1 of this Resolution, the Commissioner “shall be a non-judicial institution to promote education in, awareness of and respect for human rights, as embodied in the human rights instruments of the Council of Europe.” Article 1 also requires the Commissioner to function independently and impartially.

6.       Article 3 of Resolution (99) 50 elaborates on the functions to be discharged by the Commissioner. In addition to the elements mentioned above, the Commissioner shall inter alia:

-       provide advice and information on protection of human rights and prevention of violations. When dealing with the public, the Commissioner shall whenever possible make use of and cooperate with the human rights structures of member States: if such structures do not exist, the Commissioner shall encourage their establishment;

-       facilitate the activities of national ombudsmen or similar human rights institutions;

-       identify possible shortcomings in the law and practice of member States concerning compliance with the standards set out in the instruments of the Council of Europe, promote effective implementation of these standards, and assist member States, with their agreement, in their efforts to remedy such shortcomings;

-       co-operate with other international institutions for the promotion and protection of human rights, whilst avoiding unnecessary duplication of activities.

7.       It must also be noted that the Commissioner is required to respect the competence of, and perform functions other than those fulfilled by the European Court of Human Rights and mechanisms established under other Council of Europe human rights instruments.

8.       Articles 3 and 4 of Resolution (99) 50 prescribe inter alia relations between the Commissioner and the Assembly.

- the Commissioner shall address, whenever he deems it appropriate, a report concerning a specific matter to the Assembly and the Committee of Ministers;

- the Commissioner shall respond, in the manner he deems appropriate, to requests made by the Assembly regarding compliance with the human rights standards of the Council of Europe;

- the Commissioner shall submit an annual report to the Assembly;

- the Commissioner shall take into account views expressed by the Assembly concerning the Commissioner’s activities.

B.       The Commissioner’s activities set against the elements of his mandate – summary of the 2002 Annual Report

9.       The Commissioner emphasises three elements to his mandate: promotion and education of human rights, ensuring respect for human rights, and identifying relevant shortcomings in national law and practice.

1.       The various categories of activity

10.       On a practical level, this has translated into activities which are categorised as follows:

i. reports and recommendations;

ii. opinions;

iii. seminars;

iv. contact visits;

v. relations with national Ombudsmen and Human Rights Institutions;

vi. relations with NGOs;

vii. co-operation with international organisations;

viii. co-operation with other Council of Europe bodies;

ix. crisis situations.

a.       Reports and recommendations

11.       The Commissioner presented five reports during 2002 as a result of official visits to Bulgaria (in relation to a visit in December 2001), Greece, Hungary, Romania and Poland. These reports aimed at a more comprehensive overview of the human rights situations in the countries visited, or an analysis of, in the Commissioner’s opinion, the most salient issues. They also contain recommendations to the domestic authorities of the countries concerned. In addition, on the request of the Parliamentary Assembly, the Commissioner made a fact-finding mission to Kosovo, following which he presented a special report on the human rights situation and the fate of persons displaced from their homes. A further report was drafted containing the Recommendation of the Commissioner concerning certain rights that must be guaranteed during the arrest and detention of persons following “cleansing” operations in the Chechen Republic of the Russian Federation.

12.       Short summaries of these reports and recommendation, which provide interesting insights into similarities and differences between the problems addressed by the Commissioner in these countries, are to be found in Appendix I.

b.       Opinions

13.       Based on a dynamic interpretation of his mandate, the Commissioner has accepted requests to furnish opinions on several specific matters presented to him. During 2002 the Commissioner issued two such opinions: the first, at the request of the UK House of Commons Joint Committee on Human Rights, on certain aspects of the UK’s 2001 derogation from Article 5 of the ECHR; and the second, at the request of the Chief Commissioner of the Northern Ireland Human Rights Commission, on certain aspects of the review of the Commission’s powers.

14.       The first opinion looked in particular at the adequacy of the UK’s parliamentary procedures with respect to derogations; the review and renewal of derogations; and considerations relating to justification of the UK’s 2001 derogation. Each of these aspects was subjected to detailed analysis, and various specific criticisms and suggestions were made.

15.       The second, after reviewing international instruments on national human rights institutions, considered the issues of financial independence, investigative powers, the referral of draft laws and policies, and the Commission’s power to bring proceedings in its own name.

c.       Seminars

16.       The Commissioner’s promotional activities continue to concentrate on the organisation of seminars, either on thematic issues or in cooperation with partners playing important social roles whose activities and influence raise human rights related questions. During 2002, the Commissioner was involved in the organisation of four seminars, whose conclusions are to be found amongst the appendices of the annual report.

17.       On 6-7 May a seminar was held in Ankara concerning the role of civil society in the consolidation of modern democracy. On 5-6 December a seminar was held in Moscow on human rights and the armed forces, co-organised with the Commission of the Council of Federation on International Affairs of the Federal Assembly of the Russian Federation. Finally, on 9-10 December, a seminar involving representatives of the monotheistic religions was held in Louvain-la-Neuve, entitled “Human rights, culture and religion: convergences or conflicts? Beliefs, values and education.”

d.       Contact visits

18.       The Commissioner considers that direct cooperation with both domestic authorities, including national Ombudsmen and human rights institutions, and NGOs is particularly important. In addition to the visits which led to the reports mentioned at i. above, therefore, the Commissioner also visited Armenia, Azerbaijan and Albania during 2002. As a result of these contact visits the Commissioner issued a series of written statements.

19.       The Commissioner visited Azerbaijan in September, with the intention of making contact with the Azerbaijani authorities and of helping to set up the new ombudsman’s office. During the visit the Commissioner co-hosted a seminar on the newly-created office of ombudsman. The Commissioner also met representatives of the main NGOs involved in human rights protection, with whom, along with ministers and other government officials, he discussed the current human rights situation in Azerbaijan. In particular, discussions concentrated on the issues of political prisoners and refugees and internally displaced persons. The Commissioner’s resulting statement contained both description of the conditions he found and of the talks in which he was involved, as well as an indication of measures needed to improve the situation.

20.       In October the Commissioner visited Armenia. Again, contact was made with the authorities and with representatives of civil society. Once more, an important issue concerned the importance of establishment of an ombudsman institution. The resulting statement also described the Commissioner’s discussions regarding the death penalty and conscientious objectors. Again, the statement contained certain ideas for improving the situation.

21.       Later that month the Commissioner visited Albania at the invitation of the “People’s Advocate” (ombudsman). The subsequent statement noted that four particularly acute problems presented themselves during the visit: the conditions of pre-trial detention; Albania’s reputation as a place where trafficking in human beings was rife; women’s and children’s rights (in Albania itself); and problems posed by the residual tradition of blood vengeance. Whilst criticising the shortcomings concerning these issues, the statement shows that the Commissioner’s visit resulted in various positive developments.

e.       Relations with national ombudsmen and human rights institutions

22.       In the annual report, the Commissioner notes the structural similarities between his position and that of national ombudsmen and human rights institutions, and refers to the various ways – including official visits and the organisation of meetings and conferences – in which his office’s ties with such other bodies have been established and developed. The Commissioner, jointly with the Lithuanian Ombudsman, organised a European Ombudsmen Conference held in Vilnius in April, the conclusions of which are at Appendix VI of the annual report. The report announces that the principal means of cooperation will, as of 2003, be bi-annual round-tables, responsibility for the organisation of which was transferred from the Committee of Ministers to the Commissioner in 2002 (the 8th Round Table of European Ombudsmen did in fact take place in Oslo in November 2003 and was attended by Mrs Nabholz-Haidegger of the Committee on Legal Affairs and Human Rights on behalf of the Assembly). In Recommendation 1615 (2003) on the institution of ombudsman, the Assembly encouraged and supported the Commissioner in his work of co-ordinating the activities of member States’ ombudsmen.

23.       The Commissioner had been particularly active in promoting the creation of ombudsman institutions where they did not yet exist. In pursuit of this goal, seminars were held in Armenia and Azerbaijan. The Commissioner was also concerned to establish regional ombudsman institutions, with a two year programme for regional ombudsmen in the Russian Federation intended to commence in 2003.

24.       The mandate also calls on the Commissioner to facilitate the activities of “similar institutions”, taken to mean national human rights institutions. Whilst these were recognised as having come to play an increasingly important role in recent years, the Commissioner’s links with them remained as yet relatively underdeveloped. At the same time as being given responsibility for organising round-tables of ombudsmen, however, the Commissioner had been given responsibility for organising similar events involving national human rights institutions; prior to this, the Commissioner participated in the 2nd Round Table of National Human Rights Institutions, held in Dublin in November 2002.

25.       It has already been noted that the Commissioner gave an opinion concerning the Northern Ireland Human Rights Commission. The annual report specifically notes the importance of such support, particularly when aimed at coordinating responses to threats to such institutions’ independence. The Commissioner’s independent expertise is also offered in circumstances where the creation of new institutions requires careful integration and coordination with existing bodies. In particular, the Commissioner could facilitate improved cooperation between national ombudsmen and other national human rights institutions, in countries where both exist. Finally, the Commissioner proposes being more systematic in involving national institutions when planning and undertaking country visits.

f.       Non-governmental organisations (NGOs)

26.       The annual report stresses the recognition given in the mandate to the important role played by civil society in protecting human rights, and thus emphasises the need for the Commissioner to co-operate with NGOs. The Commissioner always seeks to meet representatives of such groups during official visits, and acknowledges the assistance given in providing information and analysis, in identifying issues of concern, and in organising numerous seminars. In return, the Commissioner seeks to promote the role of NGOs in his dialogue with national authorities, and if necessary takes concrete steps to facilitate and improve relations between the two. The report continues by describing the significance of the role played by NGOs, particularly in new democracies and in countries in transition, and defines the domestic conditions necessary for their development and effectiveness. At the same time, however, the report recognises the risk that NGO lobbying activities may influence national policy in such a way as to circumvent democratic processes. On balance, however, the Commissioner is encouraged by and encouraging of the developing situation as regards NGO activity in Europe.

g.       Co-operation with international organisations

27.       Two factors determine the importance of this element of the mandate: first, that there are overlapping, shared concerns; and second, that the Commissioner’s own resources are limited. Accordingly, the prompt establishment of good working relations and of coordinated and cooperative activity have been priorities. The report notes promising developments with respect to the European Union, the UN High Commissioner for Human Rights and the OSCE.

28.       Particular mention is reserved, however, for the UNHCR, particularly as regards provision of information in connection with the Commissioner’s concerns over refugees and internally displaced persons (IDPs) in conflict and post-conflict zones he has visited (including Chechnya, Kosovo, Georgia and Azerbaijan), and for the International Committee of the Red Cross, whose cooperation had also proved invaluable to preparation of visits and reports notably concerning Yugoslavia and Kosovo.

h.       Co-operation with Council of Europe bodies

29.       The Commissioner stresses the importance of his relations with the Assembly, observing that, in addition to the provisions of the mandate, the Assembly “provides an important forum for the voicing of the Commissioner’s concerns.” Noting the suggestion that he pay greater attention to the Assembly’s texts, the Commissioner stresses his independence, but points out that he has, in fact, on several occasions in 2002 referred to and drawn upon various Assembly recommendations. Equally, the Assembly has called on the expertise of the Commissioner, for example to conduct country visits (e.g. to Yugoslavia, as described in the report mentioned above) and to address ad-hoc meetings, colloquies and seminars. The possibility of greater cooperation is envisaged with respect to monitoring member States’ responses to the Commissioner’s concerns and recommendations, for instance through the Monitoring Committee.

30.       The Maltese Chairmanship of the Committee of Ministers (7 November 2002 – 15 May 2003) noted the importance of the Commissioner’s work and proposed that further cooperation be developed between the two bodies, in particular with respect to follow-up to the Commissioner’s reports and recommendations. The Commissioner does indeed regularly present reports on country visits to the Ministers’ Deputies, often containing recommendations intended as constructive proposals rather than criticism or accusation. This line of communication – one might also describe it as trilateral communication – is important to the effectiveness of the Commissioner’s work. In addition, some of the Commissioner’s recommendations require specific measures or programmes to be instigated for their implementation, and the Ministers’ Deputies could play an important role in encouraging and facilitating member States to undertake these activities.

31.       The Commissioner naturally takes note of the work and decisions of the European Court of Human Rights, and feels that it is often particularly important that he take action as regards certain problems identified by the Court in its judgments, as well as promoting effective implementation of those judgments. For instance, delays in taking general measures or the inadequacy of responses made to generally problematic situations may lead to repetitive applications to the Court and thus increase its workload. The Commissioner accordingly addresses structural problems identified by the Court as causing human rights violations, and envisages a possible role for his office in disseminating information on judgments and pending cases, perhaps in cooperation with the Committee of Ministers and the Parliamentary Assembly. The Rapporteur considers that there may be potential for valuable coordination of the roles of the Assembly and the Commissioner in encouraging and assisting implementation and execution of Court judgments by member States.

i.       Crisis situations

32.       The report notes the November 2002 statement of the European Ministerial Conference on Human Rights, which noted that the Council of Europe’s potential to respond to or prevent serious and massive human rights violations was insufficiently exploited: in particular, the Committee of Ministers should look at ways of protecting human rights during armed conflicts, internal disturbances and tensions, and following terrorist acts, notably from a legal perspective. In response the Committee of Ministers instructed its Committee of Experts for the development of Human Rights (DH-DEV) to consider the matter. The DH-DEV Committee concluded that the Commissioner was the body best suited to undertaking fact-finding missions in such situations, and ways and means should be found of facilitating his recourse to external experts when doing so. The Committee of Ministers subsequently considered this proposal. The Commissioner himself in the annual report specifically stated his willingness to continue to address the problem of crisis situations in the future.

2.       The Commissioner’s analysis of particular human rights problems in Europe

33.       Topics of this part of the annual report include the fight against terrorism and the rights of immigrants and foreigners; human rights and the armed forces; human rights and religions; missing persons in Chechnya and Kosovo; internally displaced persons; the rights of Roma; the rights of children; domestic violence; trafficking in human beings; and the rights of persons with mental disabilities. The country visit reports mentioned above show that many of these themes have surfaced in several countries visited by the Commissioner.

34.       The report analyses the general situation in Europe concerning these topics, set alongside illustrative examples taken from the situations in specific member States, along with details of the Commissioner’s activities and commentaries regarding these issues and his recommendations on practice, policy and legislation. They represent a thematic overview of the Commissioner’s perceptions and responses, rather than the country- and activity-based presentations given previously. These thematic analyses are a valuable feature of the report, notably in terms of the Commissioner’s educational and promotional responsibilities.

3.       Implementation of the Commissioner’s recommendations

35.       The annual report next contains five follow-up reports relating to implementation of recommendations made with respect to Moldova, Georgia, Andorra, Russia (concerning Chechnya) and Spain (concerning the Basque Country). Short summaries of these documents are to be found in Appendix II.

C.       Conclusions and proposals

1.       Assessment of 2002 activities in light of the terms of the mandate and available resources

36.       In the Rapporteur’s opinion, the Commissioner has developed the range of activities of his office in a way which encompasses all elements of his mandate in a varied and flexible manner. Drawing on a range of instruments and texts (including, as noted above, recommendations of the Assembly), the Commissioner has engaged in activities which address a wide range of current European human rights issues and has managed to involve national, regional and local authorities, national ombudsman and human rights institutions, NGOs, religious organisations, and individuals, along with organs of the Council of Europe including the Assembly and its committees. Obviously a single annual report is only broadly representative of the Commissioner’s ongoing fulfilment of his mandate, but a summary overview of the two previous annual reports reveals that from the very outset the Commissioner has implemented his mandate in an imaginative and appropriately differentiated manner.

37.       The Rapporteur would therefore like to lend his explicit support to the dynamic interpretation of the terms of reference, including that of Article 8 (1) as allowing the Commissioner to issue opinions, even at his own initiative. The Rapporteur congratulates the incumbent on the energy, enthusiasm and creativity with which he has approached his role. He also wishes him the best of luck in fulfilling his extremely ambitious programme of activity for the second half of his mandate; in particular as regards the remaining country visits, given that it is the Commissioner’s declared intention to visit all the Council of Europe’s member States during his mandate.3

38.       Without wishing in any way to question the Commissioner’s independence in setting his own priorities, the Rapporteur notes that the topics broached in the country reports include “social and economic rights” (status positivus or second-generation). The Rapporteur realises that the actual realisation of such rights, in particular in countries whose financial resources are still very limited, is frustratingly difficult to achieve. The Commissioner has quite correctly approached these issues from the perspective of the prohibition of discrimination, to which, of course, resources are of course not relevant. Furthermore whilst progress in provision of social and economic rights may depend on the means available, such considerations can never apply to respect for and protection of the classic civil and political “status negativus” and “status activus” rights (which include the prohibition of discrimination). Whilst the Rapporteur is not suggesting that the Commissioner has concentrated on social and economic rights in circumstances where there were other, more serious problems, it is important that arguments relating to national authorities’ means are not allowed to detract attention from genuine human rights concerns.

39.       During 2002 the Office of the Commissioner spent a total of € 881,216, roughly three-quarters of which related to personnel costs. An unspecified part of the office’s expenditure was financed by voluntary contributions made by the governments of Belgium, Finland, Luxembourg, Poland, Switzerland and the UK. Apart from the Commissioner himself, the office consisted of a director (Mr Giakoumopoulos took over these responsibilities in April 2002), a Deputy (Mr Jaeger assumed this office in June), a legal officer, a documentalist and two personal assistants, one of whom left in September. There were also four seconded staff, one of whom joined in April and another in September. Two short-term temporary assistants were employed towards the end of the year, and the office took a total of nine trainees.

40.       When one considers the volume and standard of work undertaken by the Commissioner during 2002, it is remarkable that his office operates on such a small budget. Of course, to the sum mentioned in the annual report must be added the salaries of those staff seconded from national administrations, but nevertheless the office of the Commissioner clearly represents ‘good value for money’.

2.       Prospects

41.       In light of the results achieved by the Commissioner to date, the Rapporteur would like to address certain issues relating to the Commissioner’s relations with the Court and the Assembly.

a.       Possible role as representative of the public interest before the European Court of Human Rights

42.       On 23 June 2003 the Assembly adopted Recommendation 1606 on areas where the European Convention on Human Rights cannot be implemented. It was noted that certain obstacles to application of the ECHR existed for a variety of reasons in a number of areas of Europe. Furthermore, individual applicants have been deterred by fear of reprisals: indeed there have been reported cases in which not only actual or potential applicants, but also their family members (who might subsequently have continued their cases), have disappeared or been murdered. The Recommendation proposed, therefore, inter alia that the possibility of actio popularis be envisaged, along with appointing a “public prosecutor” at the Court responsible for bringing actions concerning violations of human rights before the Court, and suggested that this task be entrusted to the Commissioner. (The Rapporteur feels that use of the term “prosecutor” could give a false impression of criminal jurisdiction, and certainly does not mirror the role played either by individuals or by other States party when bringing cases before the Court. Preferable alternatives could be “advocate general”, as used by the European Court of Justice, or “attorney general”, as used in many common law jurisdictions.)

43.       Since the Assembly’s adoption of this Recommendation, the Commissioner has himself promoted the Assembly’s initiative. The Committee of Ministers, however, has yet to reply to the Assembly’s Recommendation. Accordingly the Rapporteur feels that it is important to maintain momentum behind this important proposal and to strive to ensure that it does not become a dead letter. As a first step in this direction, it could be envisaged that the Commissioner become involved in proceedings as a “third party”, when so requested by the Court in appropriate cases. In this way it would be possible to put to the test the usefulness of having the Commissioner intervene before the Court.

b.       Institutionalisation of relations between the Commissioner and the Assembly

44.       The Assembly was instrumental in creation of the office of Commissioner and played an important role in elaboration of the mandate. Since then some operational links have been established between the Commissioner and the Assembly, on both Assembly and committee level, as noted in the annual report. Nevertheless the Rapporteur agrees with the Commissioner that the potential exists for regular and enhanced cooperation in the future, This could relate particularly to the implementation by member States of the Commissioner’s recommendations, or the investigation by the Assembly of issues brought to the Commissioner’s attention in the course of his contacts with relevant actors in member States. In addition, it should go without saying that the Assembly should make full use in its own subsequent activities of work which it has requested from the Commissioner.

45.       One complication, arising from the mandate itself, is noted in the annual report: “The Commissioner’s mandate specifically instructs him to avoid unnecessary duplication and nowhere would this be more evident than where the monitoring procedures of … the Assembly are already active.” If the Rapporteur understands it correctly, he considers that this interpretation is perhaps unnecessarily restrictive: Resolution (99) 50 requires the Commissioner to “respect the competence of, and perform functions other than those fulfilled by, the supervisory bodies set up under the European Convention on Human Rights or under other human rights instruments of the Council of Europe” (Article 1) and to “co-operate with other international institutions for the promotion and protection of human rights while avoiding unnecessary duplication of activities” (Article 3.i.) (emphasis added). In other words, the Commissioner must avoid repeating activities which are within the domain of supervisory mechanisms established under Council of Europe human rights instruments or which are undertaken by “other” international institutions. Since the Assembly was not set up by a human rights instrument, the Commissioner is only precluded from duplicating its activities if it is considered as another international institution. To the Rapporteur’s mind, this evokes more non-Council of Europe bodies such as the EU or OSCE than organs of the Council of Europe itself, such as the Assembly.4

46.       Certainly it can be said that the Commissioner, being independent, supranational and apolitical, is able to approach issues and draw conclusions from a different perspective to those available to the Committee of Ministers and the Assembly. So long as this distinction is maintained and apparent in the Commissioner’s work, therefore, duplication of activities (as opposed to engagement on the same issues in co-operation with other Council of Europe bodies) should be easily avoidable.

47.       Generally speaking, these distinguishing characteristics of the Commissioner are fundamental to the potential for more synergistic relations to be developed with the Assembly. Where the Assembly requires absolute impartiality, untouched by political involvement (in the sense of serving any party or constituency), the Commissioner can play an important investigatory and advisory role, as for example was done in the case of Kosovo. Where the Commissioner requires political backing and added momentum to promote his recommendations, the Assembly can provide its support; a possibility which is explicitly considered in the annual report, with the Assembly’s monitoring committee suggested as an appropriate focus for such activity. One might recall in this respect the Assembly’s on-going monitoring of implementation by member States of judgments of the Court5.

48.       The Rapporteur also believes that it would be valuable for both parties if the Assembly were each year to respond to the Commissioner’s annual report, so as to ensure that consideration is given to its contents and to any relevant specific proposals. Consideration might also be given to including in the Assembly’s response an analysis of the various specific activities in which there has been co-operation with the Commissioner.

c.       Budget and staff

49.       At this stage, over half way through the mandate of the first incumbent, the scope of the Commissioner’s activities and responsibilities continues to be defined and to develop, and it must be said that under current budgetary restraints it is hard to see how the full potential of the institution can be exploited. The annual report indicates that in 2002 the Commissioner was asked to take on significant new responsibilities, including organisation of biannual round-tables of ombudsmen and of human rights institutions; other suggested tasks included creating an institute for developing a methodology for integrating human rights into religious education. Additional functions, such as representing an actio popularis before the European Court of Human Rights, would likely prove extremely difficult to discharge. The Rapporteur therefore considers it essential for the Committee of Ministers to ensure that resources sufficient for fulfilment of all his responsibilities are made available to the Commissioner.

50.       Resolution (99) 50 states that “the expenditure on the Commissioner and the Office of the Commissioner shall be borne by the Council of Europe”, but in practice a considerable contribution is made voluntarily by a few member states (Belgium, Finland, Luxembourg, Poland, Switzerland and the United Kingdom), either financially or by means of seconded staff.6 The Rapporteur welcomes with appreciation these gestures, which in the circumstances are clearly vital, but nevertheless feels a certain discomfort.

51.       Whilst one should state categorically that there has to date been not the slightest hint of any untoward activity, the fact that half of the Commissioner’s professional staff are seconded from certain national governments raises the potential for concern over the independence of the office. Seconded staff understandably look beyond the period of their secondment to their continuing careers back in national administrations. It must be remembered that the independence and impartiality of an institution implies not only the fact, but also the appearance of these attributes. If the Council of Europe wishes to maintain the office of the Commissioner in the high esteem it currently enjoys and capable of undertaking a meaningful workload, the current fact of its reliance on seconded staff is an issue requiring attention and possible remedy by way of budgetary enhancement so as to allow the gradual replacement of seconded staff by ‘European’ staff, free of any connection to national administrations.

52.       Similar considerations apply to voluntary financial contributions. Whilst the work of the Commissioner counts amongst the most important of the Council of Europe’s activities in the field of human rights, the fact of member States providing finance not to the organisation as a whole but to specific activities in particular risks undermining the independence of the organs in question. Certainly this funding relationship must never be allowed to influence the operational decisions taken by the Commissioner, and direct contributions should in no circumstances be in any way conditional. The Rapporteur believes that it would be preferable for those member States wishing to go beyond their mandatory budgetary contributions to do so via the general budget for the office, rather than influencing nolens volens the Commissioner’s own assessment of priorities by donating to specific activities. The office’s reliance on voluntary contributions adds to the uncertainty surrounding its future budgetary provisions. Whilst of course the budget of every organ and activity of the Council of Europe is subject to annual review, voluntary contributions must be more susceptible to fluctuation or withdrawal, and thus represent an additional element of uncertainty.

d.       Evolution of the terms of reference

53.       Having now reached the half-way point of the first Commissioner’s (non-renewable) mandate, the Rapporteur considers this to be an opportune moment for review of the current terms of reference. In this respect, it is important to reconsider the Assembly’s contribution to the drafting process. On 11 September 1998 the Committee of Ministers transmitted their draft terms of reference for the Commissioner, along with the comments of the CDDH, to the Assembly for opinion (Doc. 8196). The Assembly adopted Opinion No. 210 (1999) on 29 January 1999, to which the Committee of Ministers replied on 21 May 1999 (Doc. 8439) giving reasons why not all the Assembly’s proposed amendments were incorporated and presenting the mandate as adopted in Resolution (99) 50. Having analysed this process, the Rapporteur has discerned which of the Assembly’s proposed amendments were adopted and which were not. It is also significant to consider the CDDH’s comments on its interpretation of the draft terms of reference.

54.       The Committee of Ministers’ reply to the Assembly’s opinion did not in fact address explicitly all of the amendments proposed, but the fate of the remainder is of course apparent from the text finally adopted. (Article numbering below follows that established in the adopted resolution.) What follows is an analysis of those amendments which were rejected.

i.       The Assembly proposed revising Article 1 paragraph 1 so as to read “The Commissioner shall be a non-judicial institution to promote effective observance and full enjoyment of human rights in the member States.” The Rapporteur for Opinion had hoped to give more substance to the terms of reference by emphasising a more concrete aspect. The reason given by the Committee of Ministers for rejecting the proposal was that it would have upset the balance within the Committee of Ministers between those in favour of a more interventionist role for the Commissioner and those against.

ii.       The Assembly’s proposal to amend Article 1 paragraph 2 to read “In exceptional cases the Commissioner may, if he or she deems it appropriate, deal with individual cases, provided that they are not already before the European Court of Human Rights or are likely to be the object of an application to the Court. Nor will the Commissioner consider individual petitions which have already been considered by the Court” was suggested by the Rapporteur for Opinion as a useful possibility to be used in exceptional cases, the absolute interdiction on taking up individual complaints being excessive. The Committee of Ministers rejected the amendment, arguing that non-interference with the jurisdiction of the Court was an absolute priority and that the proposed amendment raised (unspecified) problems of interpretation.

iii.       The Assembly proposed amending Article 3.e. so as to empower the Commissioner to assist member States “in remedying” shortcomings in their law and practice, rather than “with their agreement, in their efforts to remedy” such shortcomings, on the basis that the Commissioner would otherwise be totally dependent on governments’ goodwill. The Committee of Ministers rejected this proposal, referring to the question of ‘interventionism’ mentioned above.

iv.       The Assembly proposed amending Article 3.f. such that the Commissioner would address reports on specific matters to the Committee of Ministers and to itself, rather than allowing for such reports to be addressed only to the former. The justification given by the Rapporteur for Opinion was that there may be occasions on which the Commissioner would wish to address such a report only to the Assembly. The Committee of Ministers rejected this amendment, noting that there could be occasions when it would be appropriate for the Commissioner to address the Committee of Ministers alone.

v.       The Assembly proposed amending Article 8 so as to give the Commissioner sole power to decide on whether recommendations, opinions and reports be published or not, removing the Committee of Ministers’ role in authorising the publication of such documents addressed to it. The Committee of Ministers rejected this proposal, preferring to retain control over such documents.

vi.       The Assembly proposed an amendment to Article 9 allowing for lists of between three and six candidates, taking into account the number of member States and of potential candidates and the need for geographical diversity. The Committee of Ministers preferred to remain in conformity with the practice established for Secretaries General and Judges of the Court.

vii.       The Assembly proposed amending Article 10 to provide that the Commissioner’s term of office would end once the incumbent reached the age of 70 (this proposal was not contained in the Committee report and so is not mentioned by the Rapporteur for Opinion, but would be in line with the Assembly’s practice as regards candidates for judge of the Court). The Committee of Ministers rejected the proposal, referring to the Rapporteur Group’s view that this question was more appropriately considered at the stage of examination of candidates.

viii.       The Committee of Ministers also failed to adopt the Assembly’s proposal for Article 5 paragraph 1, that the Commissioner be able to “request relevant information”, which would have enhanced the Commissioner’s active role. One might speculate that the Committee of Ministers had the same ‘anti-interventionist’ objections to this proposal as to those mentioned above.

ix.       Other proposals not taken up by the Committee of Ministers related to the inversion of paragraphs a. and b. in Article 3 (rejected again because of the ‘interventionist’ issue), and addition of explanatory notes on “other human rights instruments of the Council of Europe” (Article 1) and examples of human rights structures (Article 3.c.) which were ‘implicitly’ rejected.

x.       Finally, compromise solutions were adopted which more or less embodied the spirit of the Assembly’s proposals to replace “other international organisations” (Article 3.i.) with “other national or international institutions, including non-governmental organisations” (Resolution (99) 50 reads “other international institutions”) and to add to Article 10 a requirement that “candidates should be capable of meeting the demands of a full-time office” (the Resolution states “During his or her term of office, the Commissioner shall not engage in any activity which is incompatible with the demands of a full-time office”).

55.       Amongst the observations contained in the CDDH’s opinion, the following are particularly interesting.

i.       The CDDH interpreted “human rights structures” in Article 3.c. in a wide sense, encompassing not only the “national ombudsmen and similar institutions” of Article 3.d. but also the Council of Europe’s Information and Documentation Centres, NGOs, human rights institutes (note that the Commissioner considers these to be included in the term “similar institutions”), legal advice bureaux etc. Furthermore, this provision was sufficiently flexible to allow the Commissioner to establish direct contact with the public.

ii.       The CDDH considered that Article 3.e. empowered the Commissioner to carry out his or her own monitoring work, distinct from that of the Assembly of the Committee of Ministers, which would be undertaken not systematically but pragmatically and flexibly in relation to specific problems. The Commissioner could also play an early-warning role, if need be, and could enter into dialogue with member States based on co-operation.

56.       It must be recognised that the current proposal that the Commissioner act as special prosecutor/ advocate general before the Court would resurrect the question of ‘interventionism’ which so exercised the Committee of Ministers prior to adoption of Resolution (99) 50. This being the case, one might also ask whether it is therefore appropriate to reopen certain issues on which the Committee of Ministers declined to adopt amendments proposed by the Assembly. Certainly there are considerations in common between the advocate general idea and the Assembly’s proposed amendment to Article 1 paragraph 1 (see paragraph 54.ii. above); and one could thus also reconsider the terms of reference as regards remedying shortcomings and requesting relevant information (see paragraphs 54.iii. and viii. above), since both of these also raised the question of ‘interventionism’.

57.       Whilst on this subject, the Rapporteur would like to raise several further matters. Firstly, the connected issues of whether the Commissioner can address reports on specific matters to the Assembly or the Committee of Ministers alone, or to both (the Assembly’s proposed amendment suggested both), and the power of the Committee of Ministers to withhold documents addressed to it. (The connection lies in the fact that should certain documents be addressed to the Committee of Ministers alone, they may never subsequently be made available to the Assembly.)

58.       The Rapporteur for Opinion (who was, in fact, myself) referred in the Explanatory Memorandum to the possibility of addressing specific reports to the Assembly alone: the Committee of Ministers responded that the Commissioner should be able to address such reports to it alone, or to both bodies. Regardless of the argument put forward in the previous Explanatory Memorandum, I would now suggest that all documents of the type mentioned should be addressed to both bodies (consistent with the wording of the earlier proposal for amendment), so that publication of all of the Commissioner’s work would be at his or her (informed but independent) discretion. This may lead, however, to the Assembly receiving reports which had been requested by the Committee of Ministers but which did not relate to work concurrently being undertaken by the Assembly. It is important, therefore, that some mechanism be established whereby the Assembly gives its consideration and, where appropriate, a response to such reports.

59.       Furthermore, the Rapporteur considers that there is still good reason for the Commissioner alone to decide, as appropriate, which of his recommendations, opinions and reports are to be published. The Commissioner, even under the more cautious terms of reference adopted by the Committee of Ministers, is a “European resource” for the promotion of education in, awareness of and respect for human rights, rather than a “private resource” for providing advice and assistance to the Committee of Ministers. As noted above, the appearance of independence and impartiality, reliant on transparency, are in this context as important as the reality, and the Committee of Ministers has numerous other resources available to it for the provision of confidential advice and assistance. The esteem in which the Commissioner’s office is held risks being undermined if it appears that his more critical reports may be concealed from outside scrutiny on the basis of political decisions taken by bodies on which the very subjects of those reports are influential.

60.       The Commissioner’s independence and effectiveness would also be enhanced by allowing him the authority to request, on an ad hoc basis as and when necessary for the completion of work in progress, particular information from national authorities. It must be recalled that the Committee of Ministers gave no reason for failing to incorporate this amendment when originally proposed by the Assembly. The Rapporteur considers that it is in no way a radical proposition and would not amount to any fundamental change in the Commissioner’s relationship with member States, nor should it place any politically or administratively onerous burden upon them; rather it would facilitate for the Commissioner the proper discharge of his responsibilities.

61.       In addition, if the terms of reference are to be reconsidered, the Rapporteur believes that the Assembly should once again insist on the term of office coming to an end once the incumbent reaches the age of 70. This is now clearly established as being the case for Judges of the Court,7 and there is no reason why it should not also be so for Commissioners. If the Assembly is to be consistent with this principle yet submit to the Committee of Ministers’ argument that the issue can be resolved during interviews, this may result at best in potentially embarrassing situations for the interviewing panel, and at worst the rejection of candidates (and potentially of entire lists) for reasons which could have been avoided.

APPENDIX I

Summaries of the Commissioner’s Country Reports of 2002

1.       The Commissioner’s visit to and report on Bulgaria focussed on (i) the continuing need to reform the judicial system, (ii) reorganisation of the police, (iii) protection of minorities (in particular the Roma), (iv) freedom of religion, (v) the rights of the mentally ill and (vi) the situation of refugees. Various other issues were touched upon without detailed study or conclusion. Recommendations were made concerning reform of the justice system and police, implementation of a Framework Programme for Equal Integration of Roma and of a coordinated policy for minorities, adoption of laws on the Ombudsman institution, racial discrimination and equal opportunities, improvement of living conditions for the mentally ill and of educational facilities, especially those in areas populated by Roma, reform of criminal law to limit the powers of prosecutors and penalise trafficking in human beings, the award of media licences to minority groups and improvement of the processes for administering claims to refugee status.

2.       The report on Greece concentrated on four issues: justice and the prison system; freedom of thought, conscience and religion; minority groups in Greece; and the situation of foreigners, notably refugees, asylum-seekers and immigrants. Recommendations were made that efforts continue to implement in full a prison building scheme, so as to alleviate overpopulation; to repeal existing provisions on proselytism; to amend existing laws concerning permission for establishment of places of worship and to hasten the procedure relating to construction of a mosque and creation of a cemetery for Athens’ Muslim community; to amend legislation on alternative civilian service so as to ensure its proportionality to the terms of military service and to transfer responsibility for administering claims to conscientious objector status from the defence ministry to a civilian department; to continue implementation of the programme for Roma, along with ensuring that conditions in Roma settlements respect human dignity and that relocation of Roma families is properly conducted; to ratify the Framework Convention for the Protection of National Minorities and sign and ratify the European Charter for Regional or Minority Languages; to implement the anticipated programme on reception and integration of immigrants, and legislate so that racist or xenophobic motivation is seen as an aggravating circumstances in criminal offences; and to take certain measures with respect to detention in police premises and various proposals made concerning the reception and rejection of asylum-seekers. The report concluded by observing that all necessary measures for construction of the mosque had been taken, that the authorities would consider the proposal for a Muslim cemetery and was considering the question of the term of alternative military service, that all steps were being taken to ensure the standards of the new Roma settlement, and that special provisions were being implemented with respect to relocation of Roma families due to construction of facilities for the 2004 Olympic Games. The Commissioner noted these developments with satisfaction.

3.       The report on Hungary addressed the issues of protection of vulnerable groups, the rights of detained persons, and those of foreigners and asylum-seekers, and certain questions relating to the freedom of association. The Commissioner recommended that legislation be adopted for representation of minorities in Parliament; to pursue existing employment programmes and provide an assistance plan for the Roma, with a view to combating discrimination; to improve educational and vocational training programmes for the Roma; to address the issue of intra-family violence; to establish care programmes, including the expanding provision of suitable establishments, for the elderly and mentally ill; to improve training for police officers; to implement the revised criminal law provisions on pre-trial detention; to ensure that legislation and practice guarantee effective ongoing supervision of decisions to commit individuals to psychiatric establishments; to consider co-operation with specialised NGOs in the reception process for foreigners and asylum-seekers; and to ensure scrupulous respect for freedom of association. Finally, the report noted the following additional points: that measures were being taken with respect to administrative responsibility for Roma affairs, including with respect to employment and education; that related steps were being taken concerning discrimination against women and the disabled; that legislation was being introduced aimed at improving the housing conditions of low income, disadvantaged families; that a comprehensive anti-discrimination act was foreseen for the following year; that a process had been initiated for introduction of criminalisation of hate speech; that pilot schemes were foreseen on facilitating the social integration of refugees; that reforms relating to detention on remand were impending; and that the minimum wage had become exempt from taxation. The Commissioner noted these developments with satisfaction.

4.       The report on Romania concentrated on the judiciary and the police, the situation of certain vulnerable groups, the problems of minorities and the Roma community, certain questions relating to the Ombudsman, freedom of expression, work and social solidarity and co-operation with civil society. The report recommended certain reforms concerning the powers of the General Prosecutor; certain measures intended to reduce overcrowding of prisons; to improve training and disciplinary procedures for the police force; to improve provisions for abandoned children and for preventing such abandonment; to assist victims of trafficking in human beings; to develop further programmes for adults suffering from mental disorders; to enhance protection of and assistance to victims of domestic violence; to allocate the necessary resources for the national strategy to improve the situation of the Roma; to reduce or eliminate charges for birth certificates; to remedy the public health problem in the Ferentari area; to assist the People’s Advocate by facilitating the relocation of its premises; to continue legislative reforms concerning libel and defamation laws; to encourage self-regulation of journalists; to consider establishing labour courts on a constitutional basis; to ratify the European Charter for Regional or Minority Languages and examine the possibility of ratifying Protocol No. 12 of the ECHR; and to accept the European Social Charter’s collective complaints procedure. The Commissioner added that, following his visit, the Romanian authorities had proposed publishing the reports of CPT visits; the President had sent back to Parliament the bill amending articles 205 and 206 of the criminal code, concerning libel and defamation (the significance of this is not made clear in the report); and various steps were being taken to improve the situation of the Roma.

5.       The report on Poland focussed on the issues of the judicial system, police and army; non-discrimination and the situation of minorities; women and children; trafficking in human beings; refugees and asylum-seekers; labour and social rights; and freedom of expression and freedom of the media. The Commissioner recommended that various measures be taken to reduce the length of court proceedings, in particular by non-judicial settlements (including of cases before the Strasbourg Court); improve police training with respect to eradicating brutality and problems concerning trafficking in human beings and domestic violence; develop the system of alternative penalties and ensure sufficient funding for prison construction, so as to tackle over-population; examine and take action over the situation regarding the frequency of contacts between state appointed lawyers and their clients; intensify the struggle against racism, including by ratification of the European Charter for Regional or Minority Languages and examining the possibility of ratifying Protocol No. 12; reinforce programmes for improving the situation of the Roma community; provide quality education for children in rural areas; ensure greater protection and assistance to victims of domestic violence and of trafficking in human beings; enhance provisions concerning reproductive health and termination of pregnancies; continue measures aimed at protecting separated refugee children and ensure full respect for the principle of non-refoulement of asylum-seekers; strengthen protection of labour rights’ sign and ratify the Revised European Social Charter and accept its collective complaints procedure; and continue legislative reform of the offence of insult. The Polish authorities submitted very lengthy responses to these recommendations, which were appended to the Commissioner’s report.

6.       Paragraph 16 of Assembly Recommendation 1569 (2002) asked the Commissioner to visit the Federal Republic of Yugoslavia (as then was) and Kosovo on a fact-finding mission to examine the human rights and refugees situation in Kosovo and to elaborate appropriate recommendations. This proposal was accepted and two visits undertaken, in August and September 2002. This report considered an extensive list of human rights issues, paying considerable attention to issues involving the international presence. Under the heading “The fate of persons displaced from their homes in Kosovo” the report then addressed a variety of concerns relating to the situation of displaced persons. Specific recommendations were made on the human rights standards applicable in Kosovo and accountability for their respect, on a lengthy list of specific human rights issues, and on the fate of displaced persons.

7.       The remaining report presented by the Commissioner in 2002 concerned certain rights that must be guaranteed during the arrest and detention of persons following “cleansing” operations in Chechnya. The issue of human rights violations in Chechnya has been of great concern to the Commissioner since the very beginning of his mandate, and his 2002 report considered the issues of the rights of persons arrested and transferred to the territory of military bases, competence for ensuring respect for the constitutional rights of persons arrested, and the measures that could be introduced to improve respect for the rights of those arrested. It concluded by recommending that certain decrees and orders are effectively applied during “cleansing” operations, with severe sanctions for breaches thereof; that the Prosecutor General take action to ensure effective access by civilian prosecutors to all places where civilian detainees may be held, so as to ensure full enjoyment of constitutional rights; that the Prosecutor General consider establishing specific mechanisms for cooperation and coordination between civilian and military prosecutors in Chechnya; that the material and human resources available to the civilian prosecutor’s office be duly reinforced; and that the necessary steps be taken to inform families and, where applicable, NGOs of the fate of those arrested during “cleansing” operations.

APPENDIX II

Summaries of the Commissioner’s Follow-up Reports of 2002

1.       The follow-up report concerning Moldova relates to recommendations published in December 2000 on a visit which took place in October of that year. The visit report had concentrated on the deterioration of social and economic rights, linguistic rights, the situation in Transnistria, police conduct, the administration of justice, and prison conditions. The issues of Transnistria and human rights problems relating to poverty were addressed in the general part of the report; the others were given specific attention. As regards the administration of justice, the Commissioner noted that steps had been taken to reduce the length of court proceedings; that encouraging results had been obtained in executing court judgments; that the President’s powers with respect to judicial appointments retained the possibility of arbitrariness, providing insufficient guarantees for the rule of law. As for the police, various measures had been implemented to reduce incentives to corruption; new legislation had been introduced to resolve problems relating to police custody and detention on remand (although concerns remained as to its effective implementation) – but nevertheless, the Commissioner felt the need to urge further efforts to protect the human rights of those in police custody; and the police, along with public prosecutors, had since the entry into force of new legislation in July 2001 become particularly active in the fight against trafficking in human beings. The Commissioner noted that, despite the recommendations he made on the matter in his visit report, subsequent reports of the Parliamentary Assembly, the Committee for the Prevention of Torture and the Directorate General of Legal Affairs had all indicated a deterioration in prison conditions. He urged the Moldovan authorities to address this situation as a matter of the highest priority.

2.       The follow-up report concerning Georgia related to a report published in July 2000 relating to a visit which occurred the previous month. The earlier report had focussed on the issues of the penitentiary system, the police, the administration of justice and the situation of IDPs. As to prison conditions, the Commissioner noted a number of initiatives taken by the Georgian authorities which had led to perceptible improvements, but nevertheless called on other Council of Europe member States to assist Georgia in its efforts and suggested that some redirection of resources might prove more productive. Specific mention was made of the cases of Mr Tengiz Asanidze, pardoned by the President of Georgia but not yet released by the authorities of the de facto autonomous province of Adjaria, and of Mr Djologoua, sentenced to death by the regime in Abkhazia. The earlier report had noted widespread allegations of ill-treatment of persons in police custody. Subsequent efforts at legislative reform had become fraught with complications. The situation with respect to disciplining and prosecuting police officers for human rights abuses was also ambiguous, with policy improvements apparently undermined by developments in practice. As to the administration of justice, the Commissioner’s concerns as regards the execution of judgments appeared to have been partly addressed and the situation had begun to improve; movement towards establishment of an independent bar association, however, had been less propitious. The situations of refugees and IDPs centred on four groups: Chechens, particularly those in the Pankisi Gorge which had been the subject of security operations by Georgian troops and amongst whom feelings of insecurity had increased; Meskhetians, whose return to Georgia had been a commitment of the country on its accession to the Council of Europe, but for whom Georgia had yet to propose satisfactory legal arrangements; those displaced by the Ossetian conflict, with the humanitarian situation in South Ossetia remaining precarious and international aid having decreased, and progress towards an agreed programme for returns being stalled; and those affected by the Abkhaz conflict, for which no political solution appeared forthcoming – there was a need for clarification and subsequent effective protection of the status and rights of those affected. The fact that improvements in most of the areas dealt with in the earlier report were limited led the Commissioner to issue a further series of recommendations on issues that either remained outstanding or had arisen since the earlier visit.

3.       The follow-up report on Andorra addressed issues raised in the report published in March 2001 as a result of his visit in January of that year. The later report looked at the rights of foreigners, including electoral rights and economic rights and the situation of irregular immigrants awaiting work permits; access to lawyers as from the outset of police custody; prison conditions; judicial reforms; the social security system; labour law; and domestic violence. The Commissioner’s earlier observations regarding electoral rights and economic rights (other than for French and Spanish nationals) for foreigners had not resulted in any reform. The Commissioner’s concerns, shared by the CPT, on detainees’ access to lawyers, had not been addressed. As to prison conditions, judicial restructuring and the social security system, positive developments had occurred, although on the whole it was too early to be certain of satisfactory results. Reform of labour legislation had also begun but was still far from conclusion, and further reforms were encouraged. The overall situation as regards policy on domestic violence had improved, although the Andorran authorities had yet to establish the dedicated centre or shelter for which there had been numerous calls.

4.       The Commissioner has, during his period in office, made several recommendations following visits to Chechnya, including that mentioned above, along with holding a seminar in November 2001, and in 2002 released a follow-up report to these activities. This report was considered necessary in the light of persistent reports of continuing human rights violations, notably during “cleansing” operations. Whilst earlier in 2002 the Commissioner had made specific recommendations relating to these, in particular concerning the establishment of joint teams of civilian and military prosecutors, no appropriate reply was received from the Russian authorities, and thus he considered it necessary to return to the Russian Federation and the Chechen Republic. During this visit the Russian authorities assured the Commissioner that a decree had in fact been issued containing the decision to establish such teams. The Commissioner welcomed this development and reminded the Russian authorities that the only way genuinely to improve the situation was to ensure an end to disappearances.

5.       In March 2001, following visits during February, the Commissioner reported on human rights violations occurring as a result of terrorist activity in the Basque Autonomous Community of northern Spain, and in 2002 produced a follow-up report to his earlier recommendations based on information specifically requested from the domestic authorities. The Spanish government indicated that it had introduced various measures against ‘urban terrorism’ which had been remarkably dissuasive, but that further action remained necessary. The Department of the Interior of the Basque Government supplied similar information. In addition, both authorities described judicial measures taken to annul electoral platforms and to declare illegal and dissolve various Basque political parties for having promoted, encouraged or justified violence, considered terrorist acts to be political or been involved in honouring those committing acts of violence.

*

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Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Doc 9916, Reference No 2878 of 29 September 2003

Draft resolution adopted unanimously by the Committee on 15 December 2003

Members of the Committee: Mr Lintner (Chairperson), Mr Marty, Mr Jaskiernia, Mr Jurgens (Vice-Chairpersons), Mrs Ahlqvist, Mr Akçam, Mr Alibeyli, Mrs Arifi, Mr Arzilli, Mrs Azevedo, Mr Barquero Vázquez, Mr Bartumeu Cassany, Mrs Bemelmans-Videc, Mr Berisha, Mr Bindig, Mr Brecj, Mr Bruce, Mr Chaklein (alternate: Mr Shishlov), Mrs Christmas-Møller, Mr Cilevics, Mr Contestabile, Mr Daly, Mr Davis (alternate: Mr Lloyd), Mr Dimas, Mr Engeset, Mrs Err, Mr Fedorov, Mr Fico, Mr Frunda, Mr Galchenko, Mr Gedei, Mr Goris, Mr Guardans, Mr Gündüz, Mrs Hajiyeva, Mrs Hakl, Mr Ionnadis, Mr Holovaty (alternate: Mr Shybko), Mr Ivanov, Mr Kalezić, Mr Kelber, Mr Kelemen, Mr S. Kovalev, Mr Kroll, Mr Kroupa, Mr Kucheida, Mrs Leutheusser-Schnarrenberger, Mr Livaneli (alternate: Mr Ateş), Mr Manzella, Mr Martins, Mr Masson (alternate: Mr Hunault), Mr McNamara, Mr Monfils, Mrs Nabholz-Haidegger, Mr Nachbar, Mr Olteanu, Mrs Pasternak, Mr Pehrson, Mr Pellicini, Mr Pentchev, Mrs Pétursdóttir, Mr Piscitello, Mr Poroshenko, Mrs Postoica, Mr Pourgourides, Mr Prica, Mr Pullicino Orlando, Mr Raguz, Mr Ransdorf, Mr Rochebloine, Mr Rustamyan, Mr Skrabalo, Mr Solé Tura (alternate: Mrs Lopez Gonzalez), Mr Spindelegger, Mr Stankevic, Mr Stoica, Mr Symonenko, Mr Takkula, Mrs Tevdoradze, Mr Toshev, Mr Wilkinson, Mrs Wohlwend

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the Committee: Ms Coin, Mr Schirmer, Mr Ćupina, Mr Milner

1 See Doc. 9916.

2 Opinion No. 210 (1999) on the Council of Europe Commissioner for Human Rights: draft terms of reference.

3 In 2003 the Commissioner visited the Czech Republic, Slovenia, Turkey, Cyprus, Malta, Latvia, Estonia and Lithuania.

4 Everywhere else in Article 3, the Assembly and the Committee of Ministers are mentioned individually and by name (paragraphs f, g and h); to read “international institutions” as meaning “the Committee of Ministers and the Parliamentary Assembly” would be inconsistent with this style of drafting. (See further the opinion of the CDDH at paragraph 54.ii. below.)

5 E.g. Recommendations 1576 and 1546 (2002) and Resolutions 1297 and 1268 (2002).

6 In 2003 the Netherlands also made a voluntary contribution.

7 Assembly Resolution 1232 (2000).