Doc. 10391

5 January 2005

The Third Summit

Opinion¹

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Malcolm Bruce, United Kingdom, Liberal, Democratic and Reformers' Group

I.       Conclusions of the Committee

1.       The Committee on Legal Affairs and Human Rights shares many of the conclusions of the Political Affairs Committee’s provisional report and believes that it contains several valuable proposals for the Declaration and Plan of Action to be adopted at the Third Summit. This concerns, in particular, the proposal to create a "codex" of key Council of Europe Conventions to be signed and ratified by all member states, the setting up of an independent body of experts with the task of evaluating regularly the state of democracy in the member states and the translation of the results of the various monitoring mechanisms into intergovernmental and assistance activities of the Council of Europe.

2.       The Committee would, however, like to propose some amendments to the draft recommendation. Most of these - even if they are, for technical reasons, presented as amendments to the existing provisional text of the draft recommendation - contain supplementary proposals which seek to contribute important elements concerning the key role and priorities of the Council of Europe for the years ahead.

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II.        Proposed amendments to the provisional draft recommendation

The Committee proposes the following amendments:

Amendment A:

In the draft recommendation, replace paragraph 6 by the following text:

"These common values concern, first and foremost, human rights, democracy and the rule of law. Promoting and ensuring respect of these values in Europe is the core statutory mission of the Council of Europe which remains as relevant today as it was in 1949. The Summit should reaffirm the commitment of all member states to these common values and recognise that they are the areas of excellence of the Organisation, as reflected in the unique role it plays on the Continent in the fields of standard-setting, monitoring, awareness-raising and assistance to member states. In view of continuing challenges to these values - of which terrorism is a prominent example - this role needs to be strengthened further and more resources need to be made available for it. The core mission of the Council of Europe cannot be dissociated from important areas such as social cohesion, culture and education. Work carried out in such areas should be reviewed with a view to concentrating it on the contribution it makes to the fulfilment of the core mission."

Amendment B:

In the draft recommendation, sub-paragraph 18.i.a., replace the words "include common standards" by "find expression".

Amendment C:

In the draft recommendation, after sub-paragraph 18.i.a., insert a new sub-paragraph with the following wording:

"express the desire to preserve and reinforce the unique position of the Council of Europe in the European institutional architecture on account of its excellence and unparalleled mechanisms in the area of the promotion and protection of human rights, first and foremost the European Court of Human Rights;".

Amendment D:

In the draft recommendation, in sub-paragraph 18.i.c.F., after the word “powers”, add the following text: “, including through independent courts.”

Amendment E:

In the draft recommendation, in sub-paragraph 18.i.d., replace the text after "member states" by the following:

"to strengthen human rights protection and the fight against all forms of racism, xenophobia and discrimination; in this context, welcome the imminent entry into force, on 1 April 2005, of Protocol No. 12 to the European Convention on Human Rights containing a general prohibition of discrimination and call on all member states who have not yet done so to sign and ratify this Protocol;".

Amendment F:

In the draft recommendation, after sub-paragraph 18.i.e., insert the following new sub-paragraph:

"include a strong commitment to the effect that the Committee of Ministers must fully assume its political responsibility for contributing proactively to the solution of human rights problems in member States, alongside the Parliamentary Assembly's efforts in this field, and for ensuring political support and follow-up to the work of the independent human rights mechanisms;"

Amendment G:

In the draft recommendation, replace sub-paragraph 18.ii.a. by the following text:

"confirm the Council of Europe's unique mission to achieve greater unity between European states through the promotion and protection of common values, first and foremost those of human rights, democracy and the rule of law, in a collective framework where all the democratic countries of Europe are united, co-operate on an equal footing and are equally accountable; to this end, commit the member states to:

A.       strengthening the role and capabilities of the Council of Europe in general in its core areas of excellence, notably the promotion and protection of human rights, whilst recognising that the further realisation of a common democratic and legal space where these shared values flourish also depends on the targeted contribution of Council of Europe activities in the areas of social cohesion, culture and education;

B.       more specifically, through budgetary and other measures, firstly,        strengthening further, and enhancing the synergies between, the Council of Europe's unique mechanisms for the protection and monitoring of human rights, including social rights and minority rights, as well as the fight against racism and intolerance, with the European Convention on Human Rights (ECHR) and the European Court of Human Rights as the Organisation's paramount achievement; secondly, initiating a Europe-wide programme to promote professional training so as to improve further the implementation of European human rights standards at the national level and thereby, in particular, relieve the excessive workload of the Court; and thirdly implementing fully and without delay the broad package of ECHR reform measures adopted in May 2004 and ratifying Protocol No. 14 as a matter of urgency;

C.       using more fully the Organisation's potential as a framework for developing collective responses to new challenges, including action against terrorism and responses to challenges resulting from the growing cultural diversity of European societies which require a strong affirmation of the values of the Council of Europe and co-operation to promote their concrete translation into national policies. On the first point, the Assembly expects the Summit to charge the Council of Europe with preparing a comprehensive anti-terrorism convention and other measures designed to counter the terrorist threat. To this end, the Summit could adopt a special statement, supplementing the Political Declaration and the Plan of Action;".

Amendment H:

In the draft recommendation, in sub-paragraph 18.ii.b., after the term "sub-regional mechanisms", insert the following text:

", including by a commitment to strive to ensure that the action of partner organisations is complementary to, and avoids unnecessary duplication with, that which forms part of the core mission of the Council of Europe".

Amendment I:

In the draft recommendation, replace sub-paragraph 18.ii.e. by the following text:

“set up an independent body with the task of evaluating the state of democracy in the member states, publishing reports on a regular basis containing its findings and recommendations;”.

Amendment J:

In the draft recommendation, after sub-paragraph 18.ii.i. , insert the following sub-paragraph:

"welcoming the significant progress in complying with Council of Europe standards made since the Second Summit, while at the same time recognising that there still remains a need, notably but not exclusively for the benefit of newer member states, for country-specific assistance programmes and activities, take the decision to evaluate more systematically the effective use made by beneficiary countries of the assistance provided and to ensure, more generally, that assistance is provided in the light of objective needs, notably those identified in the framework of the monitoring mechanisms of the Council of Europe, including the human rights mechanisms; in this context, the importance of multilateral, intergovernmental co-operation as a tool for promoting Europe-wide implementation of existing and developing standards should also be underlined;"

Amendment K:

In the draft recommendation, delete sub-paragraph 18.ii.j. (if amendment G above is adopted).

Amendment L:

In the draft recommendation, replace the text of sub-paragraph 18.ii.k. by the following text:

"welcome, therefore, the recent adoption of, on the one hand, the Constitutional Treaty by the European Union and, on the other, Protocol No. 14 to the ECHR by the Council of Europe as the strongest expression to date of the political commitment on both sides towards EU accession to the ECHR and, accordingly, call on the EU to prepare, together with the Council of Europe, the necessary legal measures with the aim of ensuring that the EU's accession can take place immediately after entry into force of the Constitutional Treaty, whilst ensuring that the essential features of the ECHR control system will also apply to the EU once it is a Contracting Party;",

and insert it after sub-paragraph 18.ii.l.

Amendment M:

In the draft recommendation, in sub-paragraph 18.ii.l., delete the text after the words "across Europe" (if amendment L above is adopted).

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III.       Explanatory memorandum

by Mr Malcolm Bruce, Rapporteur for opinion

1.       I share many of the conclusions of the Political Affairs Committee’s report, and believe that it contains several valuable proposals for the Declaration and Plan of Action to be adopted at the Third Summit. This concerns, in particular, the proposal to create a "codex" of key Council of Europe Conventions to be signed and ratified by all member States, the setting up of an independent body of experts with the task of evaluating regularly the state of democracy in the member States, and the translation of the results of the various monitoring mechanisms into intergovernmental and assistance activities of the Council of Europe.

2.       I would, however, like to propose some amendments to the draft recommendation. Most of these – even if they are, for technical reasons, presented as amendments to existing text of the draft recommendation - contain supplementary proposals which seek to contribute important elements concerning the key role and priorities of the Council of Europe for the years ahead.

3.       In my view, most of the proposed amendments are self-explanatory and/or rather technical. I will, therefore, confine myself to stating one or two general considerations here which have inspired some of them.

4.       First of all, I believe that it is important, as a contribution to the Third Summit, which is expected to highlight the importance and the specificity of the role of the Council of Europe on this Continent, also vis-à-vis other organisations such as the European Union and the OSCE, for the Assembly to make a clear statement about what is, and should remain, the core mission of the Organisation. In my opinion, there can be no doubt that the essential work for the promotion and protection of human rights, democracy and the rule of law lies at the heart of the Council of Europe's mission. The Organisation's Statute says so in terms which remain as valid today as they were back in 1949, and the Organisation’s most formidable achievements up to this day concern precisely these core areas of excellence, in the form of standard-setting, the effective work of high-quality independent human rights monitoring mechanisms, and other activities such as assistance programmes, all served by a professional and independent international civil service - a precious asset which should be preserved. Among the human rights mechanisms, the European Court of Human Rights, and the broad reform package adopted in May 2004 to preserve its effectiveness in the face of an ever-increasing workload, surely merit a prominent place in the Assembly's recommendations for the Third Summit. I fully agree with the statements made by the Assembly's President on 10 December 2004, on the occasion of International Human Rights Day: "On the European Continent, the protection of human rights – founded on common legal standards, functioning democratic institutions and the rule of law – is the core responsibility of the 46-nation Council of Europe", and: "The Parliamentary Assembly is determined to give its continuing strong support for the key role of the Council of Europe as the defender of human rights in Europe."

5.       This general consideration has led me to propose some amendments, notably the above-mentioned amendments A, C, F and G.

6.       A second main consideration concerns the issue of monitoring and its relation to the assistance activities carried out by the Council of Europe. I am convinced that the issue of "discrimination" and so-called "double standards" being applied to member States is frequently grossly exaggerated. Yes, of course, there are things to be improved: we should not be satisfied until all member States will have accepted all obligations belonging to the core legal acquis of the Council of Europe (including the Framework Convention for the Protection of National Minorities, the revised European Social Charter and the additional protocols to the European Convention on Human Rights) – in fact, the Assembly is vigilant on this point and frequently addresses recommendations to the Committee of Ministers calling for more ratifications of these instruments. But the fact remains that the independent monitoring mechanisms are totally objective in the performance of their duties. Monitoring work is not some sort of game of comparing the performance of countries in living up to the European standards. The findings of such monitoring are country-specific. As the judgments of the European Court of Human Rights show, no country is perfect when it comes to complying fully with European human rights requirements. What matters is that all countries consider such findings not as a nuisance but as a strong impetus for remedying shortcomings at the national level. That is what respect for common European standards is all about. The same holds true for the political monitoring performed by the Assembly itself and by the Committee of Ministers. The fact that assessments may vary from country to country is not a matter of discrimination, but a mere reflection of the fact that some countries face more challenges than others. It is only normal that countries where the (re-)establishment of democracy and the rule of law is still recent usually face more problems than others with a longer democratic tradition. Again, even older member States have been found to fall short of Council of Europe standards. The Council of Europe should call to order anyone who steps out of line, and if a member State happens to do so frequently, the Organisation should call that State to order more frequently or more emphatically. This is not discrimination, on the contrary: it would be discriminatory and render monitoring meaningless if the Organisation was, out of an ill-conceived concern to treat all States "equally mildly", to turn a blind eye to a State's recurrent or serious failures to respect standards. The situation of every State is different and treating them all alike, ignoring such differences, would be truly discriminatory. For the same reason, the fact that some countries are offered specific Council of Europe assistance programmes in order to help them in complying with Council of Europe standards is not at all discriminatory. Such assistance should be provided as long as, and, whenever, necessary in order to meet objective needs.

7.       This consideration has led me to propose the above-mentioned amendment J.

8.       In conclusion, I recommend that the Committee on Legal Affairs and Human Rights support the draft report presented by Mr Kosachev behalf of the Political Affairs Committee, while at the same time proposing some amendments to the draft recommendation.

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Reporting committee: Political Affairs Committee

Committee for opinion: Committee on Legal Affairs and Human Rights

Reference to committee: Doc 10272, Reference No 3001 of 8 October 2004

Opinion approved by the Committee on 16 December 2004

Secretaries to the committee: Mr Schokkenbroek, Mr Schirmer, Ms Clamer, Mr Milner

¹ See Doc 10381 prov, report by the Political Affairs Committee (draft recommendation provisionally adopted on 14 December 2004).