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A. Draft
recommendation
(open)
4.1. Ukraine
4.2. Spain
4.3. The
Russian Federation
4.4. The
European Union
5.1. Specific
monitoring mechanisms
Report | Doc. 14406 | 27 September 2017
Defending the acquis of the Council of Europe: preserving 65 years of successful intergovernmental co-operation
Committee on Rules of Procedure, Immunities and Institutional Affairs
Summary
For over 65 years, the Council of Europe conventions have substantially helped to improve the functioning of democratic institutions in Europe, develop the rule of law and protect and promote the rights of all European citizens. Today, democracy, the rule of law and human rights are under pressure and in dire need of revitalisation. The prospect of a Fourth Summit of Council of Europe Heads of State and Government should be a unique opportunity for reaffirming the need to strengthen the intergovernmental co-operation of the Council of Europe and its convention-based system.
A. Draft
recommendation 
(open)1. The raison d’être of the Council
of Europe is “to achieve a greater unity between its members for
the purpose of safeguarding and realising the ideals and principles
which are their common heritage and facilitating their economic
and social progress” (Article 1 of the 1949 Statute of the Council
of Europe (ETS No. 1)), focussing on the three major pillars of
human rights, the rule of law and democracy.
2. To that end, the Statute established the principle of intergovernmental
co-operation, which has since then been central to the Council of
Europe’s operations. This co-operation between member States focuses on
the development of common standards in conventions and their effective
implementation in member States in order to ensure continuity in
the achievement of the objective set out in the Statute.
3. For almost 70 years, the convention-based system has substantially
helped to improve the functioning of democratic institutions in
Europe, to develop the rule of law throughout Europe and to protect
and promote the rights of all European citizens and inhabitants.
These conventions are the main source of the Council of Europe acquis. They have a direct impact
on the lives of European citizens and the legal framework of member States.
4. This unique common heritage must be recognised, asserted,
defended and, as necessary, further developed, to the benefit of
all European citizens and inhabitants – and others to whom these
conventions are or could be applied.
5. Any initiative to draft a new treaty has to be formally approved
by the Committee of Ministers, the Council of Europe’s executive
organ. The Committee of Ministers may ask the Parliamentary Assembly
for an opinion on any draft treaty (Article 23.a). Since 1998, it does consult
the Assembly on all draft treaties. Article 15.a of the Statute states that conventions
and agreements shall be considered by the Committee of Ministers
on recommendation of the Assembly, or on the Committee’s own initiative.
A large number of these treaties have been drawn up at the instigation
of the Assembly, often referred to as the Council of Europe’s political
engine.
6. The Assembly and the Committee of Ministers therefore bear
– together with the member States – the responsibility for the creation,
protection, implementation and further development of the convention-based system
in Europe.
7. At the Third Summit of Heads of State and Government of the
Council of Europe member States, in 2005 in Warsaw, the need to
strengthen the effectiveness of the convention-based system was
underlined and measures to achieve this goal were stipulated. Many
steps have been taken since then and improvements have been made,
such as a radical reform of the Organisation’s activities, as well
as a substantial reform of the functioning of the European Court
of Human Rights and a review of conventions.
8. Despite these reforms, big gaps remain between what the member
States and the Organisation want and what is performed by them.
Ratification of conventions is too often delayed, preventing their
entry into force; implementation of conventions into domestic law
is often slow and inaccurate and domestic legal frameworks too often
dysfunctional.
9. Throughout Europe, democracy, the rule of law and human rights
are under pressure and in dire need of revitalisation. In order
to help to counter these developments and to continue to do what
is agreed in Article 1 of the Statute of the Council of Europe,
the instruments and institutions of the Organisation need to be modernised
and made more effective. The upcoming Summit of Heads of State and
Government, which is now under preparation, should therefore, on
the basis of a thorough evaluation, discuss – amongst other issues
– how to improve and reinforce the convention-based system of the
Council of Europe.
10. The Assembly therefore calls on the Committee of Ministers
and the Secretary General of the Council of Europe to:
10.1. add the Council of Europe convention-based
system and its future to the agenda of the upcoming Summit of Heads
of State and Government;
10.2. adequately prepare, in due time before the Summit:
10.2.1. an in-depth evaluation of the
effectiveness of the existing conventions and their monitoring mechanisms,
and proposals to substantially strengthen the convention-based system, in
the light of what is stated in Article 1 of the Statute of the Council
of Europe;
10.2.2. an evaluation of the effectiveness of the assistance programmes
for the implementation of the standards set out in the conventions
and an assessment of improvements needed;
10.2.3. proposals on how to strengthen the effectiveness of the
European Court of Human Rights, by improving domestic judicial procedures
to give justice to citizens, promoting effective implementation
in all member States of judgments of the Court, and appropriate
funding of the Court, in line with the decisions taken at the Third
Summit in Warsaw;
10.2.4. proposals on how to broaden the scope of application of
the European Social Charter (revised) (ETS No. 163) to all member
States by having them ratify the Charter as soon as possible, how
to expand its strong built-in monitoring mechanism (collective complaints
system) to all member States, how to make the European Social Charter
the main reference and common social rights benchmark for the European
Union’s Pillar of Social Rights and open it for signature by third
Parties which are not member States of the Council of Europe;
10.2.5. a general evaluation of relations between the Council
of Europe and the other main European organisations (European Union,
Eurasian Economic Union, Nordic Council, Organization for Security
and Co-operation in Europe (OSCE), Organisation for Economic Co-operation
and Development (OECD)) with regard to the convention-based system;
10.2.6. a consideration of the desirability of a European Union–Council
of Europe memorandum of understanding on the participation of the
European Union in Council of Europe conventions which could provide
for general operating rules (such as voting rights, speaking rights,
reporting, and financial arrangements);
10.2.7. a road map for European Union accession to the European
Convention on Human Rights (ETS No. 5), in line with the obligation
formulated in the Lisbon Treaty;
10.2.8. proposals on how to reach out to citizens and let them
participate more in the decision-making process of the Council of
Europe;
10.3. ensure that sufficient financial and human resources be
allocated to convention-based and intergovernmental activities in
which all member States should be able to participate on an equal
footing;
10.4. involve the Assembly in the preparatory activities of
these evaluations and (re)considerations, in the light of Article
15.a of the Statute;
10.5. involve the Assembly in an appropriate way in the upcoming
Summit of Heads of State and Government;
10.6. invite the Heads of State and Government, when participating
in their upcoming Summit, to recognise, assert, defend and, as necessary,
further develop and properly fund the Council of Europe’s convention-based
system, to the benefit of all European citizens and inhabitants
– and all others to whom these conventions are or could be applied.
11. The prospect of a Fourth Summit of Council of Europe Heads
of State and Government should be an opportunity for the Committee
of Ministers to undertake proper reflection on our Organisation’s
future, bearing in mind that defending the Council of Europe’s acquis depends on preserving its
unique system of co-operation which enables all member States to
agree on common positions and co-operate on an equal footing for
the benefit of all. In this context, the Assembly calls on all Council
of Europe member States to abstain from any voluntary actions which
would result in the weakening of the intergovernmental co-operation
which has contributed so much during the past decades to effectively
uniting the European continent.
B. Explanatory memorandum by Mr Tiny Kox, rapporteur
(open)1. Introduction
1. The raison d’être of the Council
of Europe is “to achieve a greater unity between its members for
the purpose of safeguarding and realising the ideals and principles
which are their common heritage and facilitating their economic
and social progress” (Article 1 of the 1949 Statute of the Council
of Europe (ETS No. 1)). To that end, the Statute established the
principle of intergovernmental co-operation, which has been central
to the Council of Europe’s operations since then. This co-operation
between member States focuses on the development of common standards
via conventions, and their effective implementation in member States
in order to ensure continuity in the achievement of the objective
set out in the Statute.
2. For almost 70 years, these conventions have helped substantially
to improve the functioning of democratic institutions, to develop
the rule of law and to protect the rights of European citizens living
in Council of Europe member States. Together, these conventions,
which are multilateral treaties, are the main source of the Council
of Europe acquis, and have
substantially contributed to the current legal framework of all 47 member
States. In Resolution
1732 (2010) on reinforcing the effectiveness of Council of Europe
treaty law, the Parliamentary Assembly welcomed the fact that the
Council of Europe has laid the foundations of an innovative and
coherent body of European law, particularly in its special fields
of expertise of human rights protection, democracy and the rule
of law. It noted that this body of conventions, covering the entire
continent, forms the basis for a Europe without dividing lines.
In its reply to Assembly Recommendation
1920 (2010), the Committee of Ministers noted that the Council of
Europe conventions constitute a unique integrated system of legal
standards collectively defined within the Organisation and agreed
upon by the member States.
3. In preparing this report on the need to defend this acquis of the Council of Europe’s
intergovernmental co-operation, the rapporteur had exchanges of
information about the past and the future of the convention-based
system with several legal experts. He made fact-finding visits to
Ukraine and Spain, countries which got access to the Council of
Europe’s acquis after they
succeeded in replacing authoritarian rule by pluralist democracy.
Furthermore, two specific hearings, in Strasbourg and Paris, were
organised on the issue of the convention-based system of the Council
of Europe. The rapporteur wishes to thank all those who helped him to
bring together the following information and proposals on the subject
of the Council of Europe’s unique convention-based system.
4. The Parliamentary Assembly and the Committee of Ministers
play a most relevant role in the development and the monitoring
of the convention-based system of the Organisation.
5. Article 15.a of the
1949 Statute states that conventions and agreements could be considered
by the Committee of Ministers on recommendation of the Assembly,
or on the Committee’s own initiative. A large number of these treaties
have been drawn up at the instigation of the Assembly, often referred
to as the Council of Europe’s political engine.
6. Any initiative to draft a new treaty has to be formally approved
by the Committee of Ministers, the Council of Europe’s executive
organ. The Committee of Ministers may ask the Assembly for an opinion
on any draft treaty (Article 23.a of
the Statute). Since 1998 it does consult the Assembly on all draft
treaties.
7. The Assembly and the Committee of Ministers therefore bear
– together with the member States – the responsibility for the creation,
protection and further development of the convention-based system
in Europe.
8. Among the first Council of Europe conventions were the European
Convention on Human Rights (ETS No. 5) and the European Social Charter
(ETS No. 35), as well as, amongst others, the European Code of Social Security
(ETS No. 48), the European Convention on Social and Medical Assistance
(ETS No. 14), the European Cultural Convention (ETS No. 18), the
European Convention on Extradition (ETS No. 24) and the European
Convention on Mutual Assistance in Criminal Matters (ETS No. 30).
9. Due to the post-war division of Europe, for almost four decades
conventions could only be applicable to the citizens of part of
Europe. central and eastern European States were outside the Council
of Europe. In southern Europe, Greece, Portugal and Spain only became
participants in the convention-based system after the fall of fascism
in the mid-seventies.
10. Although most of the Council of Europe conventions were created
between 1949 and 1989, since the fall of the Berlin Wall in 1989
the Council of Europe convention system has seen its importance
expand enormously. The Council of Europe was the first international
organisation to bring together all European countries in one body. Since
1989, its member States have more than doubled in number, to 47,
and its citizens to over 835 million. Since then, the European Convention
on Human Rights has entered into force in all 47 member States and
many other Council of Europe conventions have been signed and ratified
by member States, and entered into force, which has contributed
to a large extent to an effective pan-European standardisation of
norms based on common values.
in one body. Since
1989, its member States have more than doubled in number, to 47,
and its citizens to over 835 million. Since then, the European Convention
on Human Rights has entered into force in all 47 member States and
many other Council of Europe conventions have been signed and ratified
by member States, and entered into force, which has contributed
to a large extent to an effective pan-European standardisation of
norms based on common values.2. Evaluations of the convention-based system
11. On three occasions, in 1993,
1997 and 2005, the Heads of State and Government of the member States of
the Council of Europe have evaluated the goals, achievements and
future needs of the Organisation, including its convention-based
system.
12. The First Summit of Heads of State and Government of the Council
of Europe, held in Vienna in 1993, declared that the end of the
division of Europe would offer a historic opportunity to consolidate
peace and stability on the continent and to develop Europe as a
vast area of democratic security. Accession of new democracies,
created after the fall of communism, to the Council of Europe was
considered to be a central factor in the process of European construction
based on the Organisation's values. The Heads of State and Government
decided to create a single European Court of Human Rights. The Summit
also identified the need to address, amongst others, questions related
to national minorities, which have become ever more relevant since
the implosion of multi-national States such as the Soviet Union
and Yugoslavia. Part of this was done by the European Charter for
Regional or Minority Languages (ETS No.148), the Framework Convention
for the Protection of National Minorities (ETS No.157) and the European
Convention on Nationality (ETS No. 166). To tackle the other pressing
challenges of the emerging new Europe at that time, the First Summit
set up the European Commission against Racism and Intolerance (ECRI).
13. The Second Summit of Heads of State and Government of the
Council of Europe, held in Strasbourg in 1997, and launched at the
initiative of the President of the Parliamentary Assembly, underlined
the essential standard-setting role of the Council of Europe in
the field of human rights and its contribution to the development
of international law through European conventions. The Summit welcomed
the ratification of Protocol No. 11 to the European Convention on
Human Rights (ETS No. 155) by all member States, making it possible
to establish the new single Court of Human Rights, from 1998. The
Summit also welcomed the proposal to create a Council of Europe
Commissioner for Human Rights, as a dynamic link between the Committee
of Ministers and the Assembly, and the various institutions at both
national and international levels. The Summit reiterated the importance
of the principle of honouring the commitments entered into by the member
States, laid down by the Assembly in 1993 upon the accession of
the countries of central and eastern Europe. The Summit underlined
the need to promote social standards as embodied in the Social Charter
and in other Council of Europe instruments and called for the widest
possible adherence to these instruments. Furthermore, the Summit
called for further measures to prevent and combat terrorism, corruption
and organised crime. It called for the rapid completion of international
legal instruments pursuant to the Council of Europe's Programme
of action against corruption and decided to establish an appropriate
and effective mechanism for monitoring observance of the guiding
principles and implementation of the said international instruments.
14. At the Third Summit, in 2005 in Warsaw, it was agreed by the
Heads of State and Government that all member States would ensure
the long-term effectiveness of the European Convention on Human
Rights by all appropriate means. To this end, the European Court
of Human rights would be provided with the necessary support and
adopted reform measures would be implemented.
15. At national level, it would be ensured that there would be
appropriate and effective mechanisms in all member States for verifying
the compatibility of legislation and administrative practice with
the Convention; effective domestic remedies would exist for anyone
with an arguable complaint of a Convention violation; and adequate
training in Convention standards would be fully integrated into
university education and professional training.
16. At the Summit in Warsaw, it was underlined that all member
States should accelerate and fully execute the judgments of the
Court; the Committee of Ministers was instructed to elaborate and
implement all the necessary measures to achieve this, notably with
regard to judgments revealing structural problems including those
of a repetitive nature.
17. It was also underlined that as the primary forum for the protection
and promotion of human rights in Europe, the Council of Europe should
– through its various mechanisms and institutions – play a dynamic
role in protecting the right of individuals and promoting the invaluable
engagement of non-governmental organisations, to actively defend
human rights. The institution of the Commissioner for Human Rights
would be strengthened, support for the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment
(CPT) would be continued. The Council of Europe was encouraged by
the Heads of State and Government to continue its activities to
protect national minorities, particularly through the Framework
Convention for the Protection of National Minorities and to protect
regional languages through the European Charter for Regional or
Minority Languages. The Council of Europe should also step up its
work in the social policy field on the basis of the European Social
Charter and other relevant instruments. The Committee of Ministers
was instructed to review the Council of Europe strategy to promote
social cohesion in the 21st century. The importance of the effective
operation of the Anti-Doping Convention (ETS No. 135) and the European
Convention on Spectator Violence and Misbehaviour at Sports Events
and in particular at Football Matches (ETS No. 120) was emphasised.
Lastly, in co-operation with the European Union, the Council of
Europe would have to contribute to a more balanced management of
migration Europe-wide.
18. Through the Council of Europe, member States should strive
for the common goal of promoting democracy and good governance of
the highest quality, nationally, regionally and locally for all
citizens. Member States were called upon to make full use of the
advice and assistance of the European Commission for Democracy through
Law (Venice Commission) for further development of European standards.
Member States should all fully use the Council of Europe’s standard-setting
potential and should promote implementation and further development
of the Organisation’s legal instruments and mechanisms for legal
co-operation. The Summit’s participants urged member States to continue
common efforts to ensure strict compliance with the commitments
of member States to the common standards to which they had subscribed. Standard-setting
in the field of justice and other relevant areas of law as well
as non-discriminatory monitoring processes should continue to be
used to help member States address the problems and develop their
legal systems. Monitoring should be, when necessary, accompanied
by Council of Europe assistance and technical support.
19. Amongst the conventions created since then are the Council
of Europe Convention on Laundering, Search, Seizure and Confiscation
of the Proceeds from Crime and on the Financing of Terrorism (CETS No. 198);
the Additional Protocol to the Council of Europe Convention on the
Prevention of Terrorism (CETS No. 217); the Council of Europe Convention
on the Protection of Children against Sexual Exploitation and Sexual
Abuse (CETS No. 201); the European Convention on the Adoption of
Children (revised) (CETS No. 202); the Protocol amending the Convention
on Mutual Administrative Assistance in Tax Matters (CETS No. 208);
the Third and Fourth Additional Protocols to the European Convention
on Extradition (CETS Nos. 209 and 212); the Council of Europe Convention
on Preventing and Combating Violence against Women and Domestic
Violence (CETS No. 210); the Council of Europe Convention on the
Counterfeiting of Medical Products and Similar Crimes involving
Threats to Public Health (CETS No. 211). Several protocols to the European
Convention on Human Rights were added. Amongst new conventions already
open for accession but not yet entered into force, are the Council
of Europe Convention on the Manipulation of Sports Competitions (CETS
No. 215), the Council of Europe Convention against Trafficking in
Human Organs (CETS No. 216) and the Council of Europe Convention
on an Integrated Safety, Security and Service Approach at Football
Matches and Other Sports Events (CETS No. 218).
20. In 2012, the Council of Europe’s Secretary General presented
a review of Council of Europe conventions, in
which he drew up a list of key conventions which could provide a
common legal platform for all member States in the fields of human
rights, the rule of law and democracy. He
also identified the conventions which are obsolete, not in force,
or with a limited application, as well as those conventions which needed
updating to retain or increase their relevance. Furthermore, the
Secretary General identified ways of promoting accession to the
relevant conventions by non-member States in order to consolidate
the leading role of the Council of Europe in its priority fields
of action, as well as ways of facilitating the European Union’s accession
to existing and future Council of Europe conventions in order to
avoid, as far as possible, duplication in the fields of human rights,
the rule of law and democracy.
in
which he drew up a list of key conventions which could provide a
common legal platform for all member States in the fields of human
rights, the rule of law and democracy. He
also identified the conventions which are obsolete, not in force,
or with a limited application, as well as those conventions which needed
updating to retain or increase their relevance. Furthermore, the
Secretary General identified ways of promoting accession to the
relevant conventions by non-member States in order to consolidate
the leading role of the Council of Europe in its priority fields
of action, as well as ways of facilitating the European Union’s accession
to existing and future Council of Europe conventions in order to
avoid, as far as possible, duplication in the fields of human rights,
the rule of law and democracy.21. As the Fourth Summit of Heads of State and Government is now
under preparation, the
Assembly should propose that the Committee of Ministers place on
the agenda again a thorough evaluation of the convention-based system
of the Council of Europe, related to the 2012 evaluation of the
Secretary General and his proposals to promote the conventions at
international, national, European Union and non-member States level.
When discussing the future of the Council of Europe, the unique
common heritage of the convention-based system should be recognised,
asserted, defended and, as necessary, further developed, to the
benefit of all European citizens and inhabitants – and others to
whom these conventions are or could be applied.
the
Assembly should propose that the Committee of Ministers place on
the agenda again a thorough evaluation of the convention-based system
of the Council of Europe, related to the 2012 evaluation of the
Secretary General and his proposals to promote the conventions at
international, national, European Union and non-member States level.
When discussing the future of the Council of Europe, the unique
common heritage of the convention-based system should be recognised,
asserted, defended and, as necessary, further developed, to the
benefit of all European citizens and inhabitants – and others to
whom these conventions are or could be applied.3. Range and impact of conventions
22. Article 3 of the Statute recognises
“the principles of the rule of law and of the enjoyment by all persons within
its jurisdiction of human rights and fundamental freedoms” and establishes
the principle of intergovernmental co-operation, which lies at the heart of the Council of
Europe’s operations.
which lies at the heart of the Council of
Europe’s operations.23. Ever since the Council of Europe was founded, it has been
clear, given the intergovernmental nature of the Organisation, that
the best way of achieving and consolidating the objective of greater
unity between member States was to promote international law instruments,
such as conventions and agreements, based on the principle that
States should be free to become Parties or not. The treaties of
the Council of Europe are not legal instruments of the Organisation
as such, but owe their existence to the consent of those States
and international organisations that sign and ratify them.
24. The drawing up of conventions and agreements has been one
of the central activities of the Council of Europe. The strength
of these treaties lies in their formality and the fact that they
are legally binding on those States which have accepted them. A
potential weakness of the Council of Europe treaties – as of all international
treaties – is the slowness of the ratification process and the absence
of an obligation to ratify after having voted in the Committee of
Ministers in favour of it. However, compared with other international
treaties, the record of ratifications of Council of Europe treaties
is more favourable.
25. These treaties – 221 to date – cover a wide range of subjects.
The Statute names in particular human rights and fundamental freedoms,
and economic, social, cultural, scientific, legal and administrative
matters (Article 1.b). Many
of these treaties have an immediate impact on the life of European
citizens. This is most obvious for the European Convention on Human
Rights and its protocols. Together, they set out inalienable rights
and freedoms for each individual in all member States and commit
all member States to guaranteeing these rights and freedoms to everyone
within their jurisdiction.
26. The protection of human rights and fundamental freedoms has
been extended by numerous other conventions, such as the European
Social Charter, which protects fundamental social rights, and the Framework
Convention for the Protection of National Minorities. Other important
conventions are helping member States in the fight against crime
(including cybercrime), and promote co-operation between judicial authorities
all over Europe. They regulate in particular extradition and mutual
assistance in criminal matters as well as money laundering and confiscation
of the proceeds of crime. Important conventions have been created and
updated with respect to combating terrorism, protecting women and
children, countering human trafficking, as well as co-ordinating
social security and eliminating discrimination in the field of social
and medical assistance.
27. As treaties concluded under the rules of international law,
Council of Europe conventions are, at least from the point of view
of international law, superior to any national enactment. Few of
the treaties of the Council of Europe contain explicit provisions
on the application of their provisions in domestic law. In some
member States a
treaty acquires the status of domestic law upon its ratification.
In other member States a ratified treaty
does not ipso facto enjoy
the status of domestic law. There a separate legislative act is
needed. There are also States which have a “mixed” system. However, in all ratifying
States, the provisions of the Council of Europe conventions, become
part of the national legal framework and therewith play an important
role in the lives of European citizens.
a
treaty acquires the status of domestic law upon its ratification.
In other member States a ratified treaty
does not ipso facto enjoy
the status of domestic law. There a separate legislative act is
needed. There are also States which have a “mixed” system. However, in all ratifying
States, the provisions of the Council of Europe conventions, become
part of the national legal framework and therewith play an important
role in the lives of European citizens.28. Today, the Council of Europe remains one of the very few multilateral
forums able to quickly draft traditional international instruments
(such as conventions) on a broad range of issues. For example, the Council
of Europe Convention on Preventing and Combating Violence against
Women and Domestic Violence was drafted as an urgent response to
the problem of domestic violence. It was drawn up within a year
with the active participation of representatives from the member
States, opened for ratification in 2011 and entered into force in
2014. In 2010, as part of the drive to combat tax evasion, the Organisation
for Economic Co-operation and Development (OECD) turned to the Council
of Europe to update and render more workable the Convention on Mutual
Administrative Assistance in Tax Matters, the only instrument reconciling
tax measures and respect for human rights. And an Additional Protocol
to the Council of Europe Convention on the Prevention of Terrorism
was opened for ratification in 2015 and entered into force in July
2017.
4. Impact of the access to the Council of Europe’s acquis. Four case studies: Ukraine, Spain, Russia and the European Union
29. To assess the effects on national
legal frameworks of accession of countries to the Council of Europe and
therewith to the acquis of
intergovernmental co-operation, the rapporteur carried out fact-finding
visits to Ukraine and Spain. Both countries acceded to the convention-based
system after a long period under authoritarian rule: communism in
Ukraine and fascism in Spain. The impact of joining the Council
of Europe for the Russian Federation, the biggest member State of
the Organisation, after 70 years of communist rule, was also given
special attention by the rapporteur. Furthermore, the rapporteur
focused on the relation between the Council of Europe and its conventions
and the European Union, of which all members are also members of
the Council of Europe.
4.1. Ukraine
30. According to the interlocutors
the rapporteur met in Kyiv from 10 to 12 January 2017, after the emergence
of the Ukrainian State in 1991, the country was faced with the challenge
of constructing a new system of governance and reforming the legal
system. The Soviet structure was only partially replaced, with a considerable
number of dogmas in jurisprudence inherited from the former U.S.S.R.
still being intact. A clear example given by the Ukrainian interlocutors
was the absence in the Criminal Code of violations and offences related
to corruption or the trafficking of human beings. In violation of
the principle of the rule of law, the judicial system was characterised
by a procedure of “supervisory review” – the possibility of cancelling
court decisions which had acquired the force of res judicata. These
institutional gaps persisted in Ukraine following its accession
to the Council of Europe in 1995.
31. Co-operation in the area of criminal and civil matters, once
built on agreements concluded within the framework of the Commonwealth
of Independent States, has been gradually replaced by co-operation
based on the Council of Europe conventions. In this way, the 2006
investigations into an airplane crash nearby Donetsk of a flight
belonging to a Russian company “Pulkovo” were made possible thanks
to the European Convention on Mutual Assistance in Criminal Matters.
32. To date, Ukraine has ratified 87 conventions and signed –
but not yet ratified – 24 conventions. Some of them will never be
ratified as they have become obsolete or replaced by new conventions.
Several conventions need more time before ratification, either to
identify which type of domestic activities these conventions regulate or
to organise the necessary financial means to realise their implementation.
The European Convention on Human Rights was and still remains the
main legal instrument for institutional and legal changes in all
areas of public life in Ukraine. Important domestic reforms have
been also triggered by the European Convention for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment and
the CPT’s conclusions which can be considered as a second irrefutable
and appreciated set of standards. Opinions of the Venice Commission
on draft laws are also seen as an indispensable tool in constitutional
and legal matters. Even though these opinions are not binding, they
give credibility to new legal acts in the eyes of the public and
serve as a reference for the Committee of Ministers when assessment
is made whether new legislation is in conformity with the criteria
set out by the judgments of the European Court of Human Rights.
33. For the public authorities, the Council of Europe serves as
a facilitator to fulfil the country’s needs. However, in many cases
the Council of Europe continues to be seen as a “standard setter”,
showing that there is a need to have Ukrainian representatives fully
and continuously involved in the standard-setting process in Strasbourg.
The presence of national representatives ensures that potential
conflicts with national standards are avoided and increases the
ownership with regard to future treaties by being a part of their
creation. This assumes that the Council of Europe can guarantee
continuity of the presence of Ukrainian representatives in steering
committees and the allocation of resources necessary to enable them
to attend meetings in Strasbourg. A treaty negotiation process in
Strasbourg has to be accompanied by a national awareness-raising campaign
to pave the way for a forthcoming ratification or the implementation
of the instrument which could also facilitate its acceptance by
society.
34. National authorities have difficulties in following up on
the obligations undertaken by different government entities, primarily
due to continuous changes in staff members of these bodies. Other
countries of central and eastern Europe reportedly face similar
problems. However, as certain structural shortcomings are being
improved, the Council of Europe could also look into the possibility
of creating programmes or working practices where Council of Europe
experts could be sent to national ministries to facilitate the execution
of Court judgments or to answer spontaneous requests regarding the
execution and implementation of commitments and obligations which
member States have taken up on them.
35. The Council of Europe has helped to conceptualise a reform
programme and to identify the implementation stages for Ukraine.
Concerning the current situation, according to many interlocutors
in a number of areas, reforms should be refocused more on the implementation
of standards than on the introduction of new ones. Effective implementation
and monitoring of conventions to which Ukraine has acceded are considered
as the most vulnerable part of the process.
36. Some interlocutors pointed out certain obstacles to efficient
legal co-operation, which principally consist of insufficient resources
being allocated from the Council of Europe’s budget for the participation
of national experts in working groups and steering committees. For
instance, the European Committee on Crime Problems (CDPC) deals
with matters and elaborates standards falling within the scope of
two different Ukrainian authorities: the Ministry of Justice and
the Prosecutor General. Given that the participation of only one
expert is covered by the Council of Europe budget, national experts
representing these institutions participate in the work of the Committee
on a rotation basis, which undermines the continuity of the follow-up.
Participation in the Monitoring Group of the Anti-Doping Convention
(T-DO) and the Standing Committee of the European Convention on
Spectator Violence and Misbehaviour at Sports Events and in particular
at Football Matches (T-RV), both important forums for exchanges
of best practices, are not covered by the Council of Europe budget at
all, thus preventing the Ukrainian representatives from attending
meetings of these committees. During the drafting of the recently
adopted criminal law convention to combat the illicit trafficking
of cultural property by the Committee on Offences relating to Cultural
Property (PC-IBC), the participation of only one expert per country was
covered by the Council of Europe’s budget while, at the same time,
observations by two relevant Ukrainian authorities, the Ministry
of Justice and the Ministry of Culture, were required to avoid potential
future conflicts with national standards and to increase the feeling
of ownership regarding the future treaty being prepared at that
time.
37. Action plans elaborated by the Committee of Ministers on implementation
of fundamental rights, execution of judgments and decisions and
commitments to the Council of Europe help to foster ratifications
of conventions and identify the needs for new conventions. However,
the 5% of gross domestic product (GDP) spent on military expenses
has seriously impacted the implementation of reforms concerning
the social agenda which, moreover, often are not considered as the
priority of the Action Plan. In this regard, some interlocutors pointed
to the need for more efficient and adjustable Council of Europe
mechanisms to deal with new challenges. Conventions are a solid
and long-lasting basis for legal unity among member States. However,
the Committee of Ministers also has to be active in elaborating
recommendations to adapt common standards to the constantly changing
societal context.
38. Finally, ratification and implementation of a number of Council
of Europe treaties has been a direct consequence of various agreements
between Ukraine and the European Union. For instance, the 2014 EU–Ukraine
Association Agreement explicitly mentions the adoption of Council
of Europe treaties and recommendations or ensuring the implementation
of already adopted standards in areas of national minority rights,
police reforms, the judiciary, the fight against corruption, judicial
co-operation in criminal matters, tackling illicit drugs and money
laundering. The influence of the European Union, especially in the
context of visa liberalisation talks, and important funds deployed
to support EU programmes (€11 billion from 2014 to 2020) have accelerated
the adoption and implementation of Council of Europe standards which
have been identified by the European Union as part of its acquis.
4.2. Spain
39. According to the rapporteur’s
interlocutors in Spain on 8 March 2017, Spain's celebration of the
40th anniversary of its membership in the Council of Europe has
provided an opportunity to reiterate the country's full commitment
to the system of human rights protection established by the Organisation.
The country's rapid accession to the Council of Europe, emerging
from almost 40 years of dictatorship under Franco, is an interesting
“model” of swift democratic transition.
40. In August 1950, the Assembly became the first European institution
to explicitly make Spain's democratisation a precondition of membership
when it expressed the hope that “in the near future the Spanish people
may be able to hold free elections and set up a constitutional regime,
whose members will be eligible to serve as representatives in this
Assembly”. In 1974, an Assembly resolution “On the situation in
Spain” observed that Spain was still “a long way from meeting the
conditions necessary for full membership of the Council of Europe,
as it has no democratic and representative democracy”. The rapporteur,
Mr Reale, after having visited Spain, highlighted the lack of individual
liberties, censorship, harsh repression of political opponents and
absence of democratic elections. He also reported that the majority
of Spaniards were convinced that any change in institutional structures
should be brought about without recourse to revolution. Spain's
possible future membership of European institutions would provide
guarantees and reassurances to those who faced a post-authoritarian
future with apprehension, in particular those who feared that Franco's death
might lead to a violent overthrowing of the established socio-economic
order.
41. In 1977, Spain did indeed become a member of the Council of
Europe, even before it had adopted the new Constitution of 1978.
This enabled fundamental rights, as referred to in the European
Convention on Human Rights, to be included in the new Constitution.
Article 10.2 states henceforth that “provisions relating to the
fundamental rights and liberties recognised by the Constitution
shall be construed in conformity with … international treaties and
agreements thereon ratified by Spain”.
42. Since the demise of the Franco regime, Spain has undertaken
the challenging task of creating a new legal order respectful of
human rights. A new judicial procedure was created which led to
the interpretation of fundamental rights, as enriched in the Constitution
and interpreted by the European Court of Human Rights, being rapidly
transposed into the case law of Spanish courts. The old institutional
system melted into the new one whose culture was respectful of human
rights. Fundamental rights became binding for public authorities and
were subject to a remedy “amparo”, with the Constitutional Tribunal
being the last remedy in reviewing human rights disputes, including
on merits. Such a system sent a strong signal about the importance
of human rights. The Spanish Parliament took on the task of translating
judgments of the European Court of Human Rights against Spain and
made them available to judges in a legal data base. Translation
of the Court's case law has been included in the university curriculum
of the last year of studies in law and linguistics. It allows young
professionals to be trained and the Court’s case law to be fed into
the Spanish interface of the legal data base. Examples were discussed
showing that the implementation of the Court's decisions sometimes
require time in order to adjust national legislation, solve technical
problems or communicate the case to the government.
43. Thirty years after the system was established, the main body
of rights granted by the European Convention on Human Rights, as
interpreted by the Court of Strasbourg, has been incorporated into
the Spanish judicial system and is rooted in the legal mentality.
This progressive construction of a new legal culture has been done
in full respect of the principle of subsidiarity. It has also allowed
issues which are sensitive from a human rights perspective, such
as the fight against terrorism in the framework of ordinary legislation,
to be addressed. That being said, the latest case law of the Court
on new issues, such as surrogacy, has to be more consistent and
based on commons standards.
44. If the European Convention on Human Rights and the related
case law were vital while addressing current pitfalls, numerous
Council of Europe Conventions and resolutions of the Assembly have
guided the Spanish authorities in elaborating new legislation. The
Convention for the Protection of Individuals with regard to Automatic
Processing of Personal Data (ETS No. 108) was an important source
of inspiration in building the system of data protection. The Convention
on Access to Official Documents (CETS No. 205) inspired the new law
on a related topic even though Spain has not yet ratified that convention.
Council of Europe standards continue to serve as a “clearing house”
for new draft laws. Any new draft prepared by the government has
to pass through the Council of State which assesses the compatibility
of drafts with Council of Europe standards. The Spanish interlocutors
praised the convention on organ trafficking which was quickly adopted
when there was a need and thanks to which Spain is – according to
the interlocutors – currently the most advanced country in the world
in the domain of organ transplantation.
45. Furthermore, my interlocutors noted that numerous steering
committees of the Council of Europe work to both identify new practices
and new possible challenges related to human rights. They also help
to keep human rights on the agenda, which can easily be neglected
in times of economic crises. In particular, the Steering Committee
on Human Rights addresses issues of human rights and economic crises,
human rights and business, the mutilation of women and the paid
transplantation of organs.
46. According to the interlocutors in Madrid, the standard-setting
activities of the Council of Europe have to continue targeting issues
in need of regulation at international level. However, developing
conventions is complex and is constrained by budgets. That is why
resources must also be allocated to identifying best practices in
the implementation of already existing standards in order to take
full advantage of existing conventions. The technical assistance
which the Council of Europe provides is extremely useful, the Spanish interlocutors
stated.
4.3. The
Russian Federation
47. On 6 July 1989, Mikhail Gorbachev,
then first Secretary of the Communist Party of the Soviet Union, addressed
the Assembly in Strasbourg with his famous plea for “a common European
home”, therewith opening the prospect,
after decades of divide and confrontation, of European unification
and the possibility of creating a pan-European legal space. To show
his readiness to overcome the European divide, by using the convention-based
system of the Council of Europe, Gorbachev proposed that the Soviet
Union accede to some of the Council of Europe’s conventions that
were open to other States.
therewith opening the prospect,
after decades of divide and confrontation, of European unification
and the possibility of creating a pan-European legal space. To show
his readiness to overcome the European divide, by using the convention-based
system of the Council of Europe, Gorbachev proposed that the Soviet
Union accede to some of the Council of Europe’s conventions that
were open to other States.48. Four months later, the Berlin Wall came down, and two years
later the Soviet Union dissolved into independent States. Five years
after this dissolution, the Russian Federation acceded to the Council
of Europe, preceded and followed by the other former parts of the
Soviet Union, and the idea of a pan-European legal space, as proposed
by Gorbachev in 1989 when addressing the Assembly, was starting
to materialise.
49. Two years after its accession, the Russian Federation ratified
the European Convention on Human Rights, which brought all Russian
citizens under the Convention’s protection. Two decades after accession, the
Russian Federation has ratified a large number of major conventions.
The Russian Constitution states that the European Convention is
part of the Russian legal system and has supremacy over national
legislation. The Federal Law on ratification of the Convention and
its Protocols recognises as binding the jurisdiction of the European
Court of Human Rights in interpretation and application of the Convention.
Particularly since the early years of the 21st century, Russia’s
membership has, according to Professor Entin at the round table
on 2 December 2016, given rise to fundamental institutional and
legal changes, especially in terms of judicial reform and amendments
to the main legal codes.
50. Today, the impact of Council of Europe standards can be found
in all areas of national law be it constitutional, criminal or other.
For instance, the Russian Federation ratified the European Charter
of Local Self-Governance (ETS No. 122) in April 1998. The Charter
is still one of the most important international documents that
define the fundamental principles of the formation and functioning
of local governance institutions in Russia. Virtually all the key
provisions of the Preamble of the Charter have been transposed into articles
of the Constitution and the Federal Law on general principles on
the organisation of self-governance. Following the ratification
of a number of Council of Europe conventions, new principles or
offences have been introduced into national criminal law. In this
regard, one could mention the Convention on the Protection of Children
against Sexual Exploitation and Sexual Abuse and the Criminal Law
Convention on Corruption (ETS No. 173). The generally recognised
principles and norms of international law and international treaties
are a part of Russia’s criminal legal proceedings which include
various instruments on mutual international co-operation. The Convention
on Mutual Assistance in Criminal Matters, the Convention on the
Transfer of Sentenced Persons (ETS No. 112) and the European Convention
on the Transfer of Proceedings in Criminal Matters (ETS No. 73)
have been widely used by national authorities. Concerning civil
proceedings, several reforms of the code have been carried out having
regard to the case law of the Court and the standards of the Council
of Europe. Implementation of Council of Europe standards is done
either directly by transposing treaties principles into national
legislation or through decisions of the Constitutional Court of
Russia inspired by Council of Europe standards, in particular the
case law of the European Court of Human Rights. According to statistics
in 2005, the Constitutional Court of Russia made reference to the
European Convention on Human Rights in 90 cases and this number
has increased since.
51. At the end of 2016, Russian President Putin, when meeting
the Secretary General of the Council of Europe, Thorbjørn Jagland,
in Moscow, recalled that his country had already been a member of
the Council of Europe for 20 years and had already joined 60 treaties
and protocols. According to the Ministry of Foreign Affairs, Russia
has covered, during its two decades of membership, a long path towards
a State ruled by law with a pluralist democracy and respect for
human rights. It has implemented large-scale reforms in all social spheres.
Russia is a signatory of the Council of Europe conventions and treaties
and is also involved in the drafting of new Council of Europe conventions
as an equal member contributing to the creation of a common European
legal space. Russia has ratified 61 of the Council of Europe’s 221
legally binding conventions, including the Council of Europe Statute
and the European Convention on Human Rights and has signed but not
yet ratified 19 conventions. Some of the not (yet) ratified conventions,
such as the Convention on the Counterfeiting of Medical Products
and Similar Crimes involving Threats to Public Health (Medicrime Convention),
opened for negotiation during the 2006 Russian Chairmanship of the
Council of Europe and opened for signature in Moscow in 2011, have
already led to substantive changes in national legislation. Russia became
one of the first States to sign the Convention on the Manipulation
of Sports Competitions in September 2014, and it signed the Convention
against Trafficking in Human Organs in September 2015, the Convention on
the Abolition of Legalisation of Documents executed by Diplomatic
Agents or Consular Officers (ETS No. 63) in January 2016 and the
Convention on an integrated Safety, Security and Service Approach
at Football Matches and other Sports Events in July 2016.
52. During his visit to Russia in December 2016, Secretary General
Jagland called Russia an important, even essential member of the
Council of Europe. He recalled the important effects of Russia joining
the Council of Europe and its conventions, and the fact that the
Organisation had supported important reforms in Russian legislation,
including the civil and penal codes. It assisted in establishing
the Russian Federation’s Courts of Appeal, and the building up of
the important institution of Federal and Regional Ombudspersons.
Much had been done to translate European standards into Russian
law, through the ratification of the European Convention on Human
Rights and 60 other treaties.
53. In 2016, the European Court of Human Rights dealt with 7 010
applications concerning the Russian Federation, of which 6 365 were
declared inadmissible or struck out. The Court delivered 228 judgments, concerning
645 applications, 222 of which found at least one violation of the
European Convention on Human Rights.
54. Recently, Russia adopted a law on the priority of national
law over international court rulings, although the Russian Constitution
and laws repeatedly acknowledge the binding nature of international
law and treaty organisations. This development causes great concern
and has been the subject of several efforts by the Secretary General
of the Council of Europe to reverse this development. The same goes
for the “Foreign Agents” law, which targets NGOs in receipt of foreign
funding and who conduct so-called “political activities”. According
to the Secretary General, this is discriminatory, regressive and
has a chilling effect on civil society at large – and is damaging
Russia’s international reputation.
55. Although the country is still a fully fledged member of the
Committee of Ministers, it did not send a parliamentary delegation
to the Assembly in 2017, so Russian parliamentarians are not able
to participate in important decisions of the Assembly, such as the
election of judges to the Court. If this absence continues, the Russian
Parliament will have no say in the election of the new Commissioner
for Human Rights and a new Secretary General and Deputy Secretary
General of the Council of Europe. This would certainly undermine
the relevance of Court judgments in Russia and the willingness of
the country to work with the different monitoring mechanisms of
the Council of Europe, first and foremost the instruments created
by the Assembly. A recent unilateral decision of the Russian Government
to suspend the payment of a substantial part of its annual contribution
to the budget of the Council of Europe because of the current absence
of a Russian delegation in the Assembly is not in line with its
obligations to the Organisation and therefore very much to be deplored.
It is to be hoped that the Russian Parliament will present a new
delegation to the Assembly at the January 2018 part-session.
4.4. The
European Union
56. Participation in most Council
of Europe treaties is not exclusively limited to the member States
of the Council of Europe or only relevant to European citizens.
Non-member States, also outside Europe, can accede to “open” treaties,
provided that they have been formally invited to accede by the Committee
of Ministers. Today, over 160 conventions are open to non-member
States and some have acceded to a number of these conventions. However,
actual participation of States which are not Council of Europe members
to these open conventions is rather low.
57. Nevertheless, several of these conventions have the potential
to become worldwide conventions. The Convention for the Protection
of Individuals with Regard to Automatic Processing of Personal Data,
which entered into force three decades ago, still remains the only
binding international legal instrument in the field, with a potential
worldwide scope of application. And the Convention on Cybercrime
(ETS No. 185), whose purpose is to protect societies against cybercrime
at global level, is the first international treaty on crimes committed
via the internet and other computer networks, dealing particularly
with infringements of copyright, computer-related fraud, child pornography
and violations of network security. Several non-European States such
as Australia, the Dominican Republic, Israel, Japan, Mauritius,
Panama, Sri Lanka and the United States have signed and ratified
it.
58. In the past years, the United Nations have not shown adequate
capabilities to create, implement and monitor international treaties,
whereas the Council of Europe has shown that it is – through its
open conventions and open mechanisms (such as the Venice Commission)
– able to act more effectively in international standard-setting.
Broader ratification of existing conventions, which deal with today’s
needs, should therefore be encouraged, both in member States and
in other parts of the world. To name but a few areas where Council
of Europe conventions are operative and could become standard-setting
worldwide: data protection, cybercrime, money laundering, terrorism,
doping, match-fixing. New, open conventions to counter new challenges,
like for example in the broad field of emerging technologies, could
be developed by the Council of Europe, and the Assembly could again
be the driving force, as it has been in the past. However, according
to the Secretary General of the Council of Europe, this will need
a review of the conditions for accession to these conventions .
.59. One of the international organisations which could accede
to the Council of Europe’s open conventions is the European Union.
Out of the 47 member States which are involved in the convention-based
system of the Council of Europe, 28 are also members of the European
Union. Both the Council of Europe and the European Union are international
organisations by birth, but the European Union has become highly
constitutionalised and combines features of both an international
organisation and a State.
60. There has been long-standing political co-operation between
these two institutions. An initial arrangement was signed in 1959,
followed in 1974 by the establishment of a Council of Europe liaison
office in Brussels, tasked
with facilitating contacts and exchange of information between the
Council of Europe and the Communities. The 1959 arrangement was
replaced in 1987 by an Arrangement between the two institutions,
supplemented in 1996 by an exchange of letters between the Secretary
General of the Council of Europe and the President of the European
Commission, then, in 2001, by a joint declaration on co-operation and
partnership between the two institutions and, in 2007, by a Memorandum
of Understanding. Lastly, on 1 April 2014, the Commission and the
Council of Europe signed a “Statement of Intent” putting in place
a new framework for co-operation in the EU Enlargement and Neighbourhood
Regions for the period 2014-2020.
in Brussels, tasked
with facilitating contacts and exchange of information between the
Council of Europe and the Communities. The 1959 arrangement was
replaced in 1987 by an Arrangement between the two institutions,
supplemented in 1996 by an exchange of letters between the Secretary
General of the Council of Europe and the President of the European
Commission, then, in 2001, by a joint declaration on co-operation and
partnership between the two institutions and, in 2007, by a Memorandum
of Understanding. Lastly, on 1 April 2014, the Commission and the
Council of Europe signed a “Statement of Intent” putting in place
a new framework for co-operation in the EU Enlargement and Neighbourhood
Regions for the period 2014-2020.61. Already in 1985, the Committee of Ministers expressed its
determination to foster European solidarity by strengthening and
consolidating institutional ties between the Council of Europe and
the European Community, while fully respecting the differences in
the respective nature and procedures of each organisation. According to
the Committee of Ministers, the Council of Europe and the European
Community were essential organs of European construction and emphasised
the desirability of establishing a flexible framework for co-operation between
the organisations. Both European treaty organisations aim to create
greater unity between its members.
62. Ten years later, the European Union’s Council recognised that
“the Council of Europe has a crucial role to play in upholding human
rights standards and supporting pluralist democracy”. With regard
to accession of new countries to the European Union, it is widely
acknowledged that membership in the Council of Europe and ratification
of the European Convention on Human Rights is of significant relevance
for accession. Since the coming into effect of the Treaty on European
Union, co-operation between the European Union and the Council of
Europe has intensified, notably in the fields of justice and home
affairs. The European Union acknowledges that reports drawn up within
the Council of Europe on the implementation of Council of Europe
conventions and recommendations have to be taken into account when
evaluating the enactment, application and effective implementation
by the applicant countries of the acquis of
the European Union in the field of justice and home affairs.
63. At the Third Summit in 2005 in Warsaw, the Council of Europe
Heads of State and Government agreed that its co-operation with
the European Union was to be strengthened so that the Council of
Europe’s and the European Union’s achievements and future standard-setting
work were to be taken into account, as appropriate, in each other’s
activities, especially in the field of human rights and fundamental
freedoms, the promotion of pluralistic democracy and the rule of
law. A Memorandum of Understanding would be drafted between the Council
of Europe and the European Union to create a new framework of enhanced
co-operation and political dialogue. Particular focus was to be
put on how the European Union and its member States could make better
use of available Council of Europe instruments and institutions,
and how all Council of Europe members could benefit from closer
links with the European Union. In the Memorandum, it was stipulated
that “the Council of Europe will remain the benchmark for human
rights, the rule of law and democracy in Europe”.
would be drafted between the Council
of Europe and the European Union to create a new framework of enhanced
co-operation and political dialogue. Particular focus was to be
put on how the European Union and its member States could make better
use of available Council of Europe instruments and institutions,
and how all Council of Europe members could benefit from closer
links with the European Union. In the Memorandum, it was stipulated
that “the Council of Europe will remain the benchmark for human
rights, the rule of law and democracy in Europe”.64. The European Union is entitled to accede to several open Council
of Europe conventions. However, overall participation of
the European Union in these conventions is rather low. Among the
54 conventions open to the European Union, 11 have been ratified,
almost all before 2005. Six other conventions have been signed but
not yet ratified. The European Union ratified in particular the
Convention on the Elaboration of a European Pharmacopoeia (ETS No.
50) and several animal-related conventions. Amongst others, it signed
the European Convention on the Prevention of Terrorism and its additional
protocol and, in 2017, the European Convention on Preventing and
Combating Violence against Women and Domestic Violence. It could
accede to the Data Protection Convention of the Council of Europe
but negotiations appear to be rather difficult.
However, overall participation of
the European Union in these conventions is rather low. Among the
54 conventions open to the European Union, 11 have been ratified,
almost all before 2005. Six other conventions have been signed but
not yet ratified. The European Union ratified in particular the
Convention on the Elaboration of a European Pharmacopoeia (ETS No.
50) and several animal-related conventions. Amongst others, it signed
the European Convention on the Prevention of Terrorism and its additional
protocol and, in 2017, the European Convention on Preventing and
Combating Violence against Women and Domestic Violence. It could
accede to the Data Protection Convention of the Council of Europe
but negotiations appear to be rather difficult.65. The Lisbon Treaty obliges the European Union to accede to
the European Convention on Human rights. Accession would be a major
step forward towards a stronger and more coherent system of fundamental
rights protection. Accession of the European Union to the Convention
will enhance consistency in the application of human rights, fostering
a harmonious development of the relevant case law of the European
Court of Human Rights and the European Court of Justice (ECJ). However,
while the EU Charter could deploy its legal effects immediately
upon entry into force of the Lisbon Treaty (1 December 2009), the
European Union’s accession has still not been realised. A draft
accession agreement was presented on 5 April 2013, introducing a
co-respondent mechanism including the ECJ’s prior involvement, which
is needed because the legal systems of the European Union and its
member States not only overlap, but are intrinsically intertwined.
The European Union constitutes a legal order of its own that applies
to a certain territory, with comprehensive legislative and treaty-making
powers, deriving from transfer of competence from the member States
to the Union. Following a
ruling of the ECJ of 18 December 2014 (Opinion 2/13) holding the Accession Agreement to be incompatible with
EU law, there is now no clear indication if and when the European
Union’s accession to the Convention will take place.
Following a
ruling of the ECJ of 18 December 2014 (Opinion 2/13) holding the Accession Agreement to be incompatible with
EU law, there is now no clear indication if and when the European
Union’s accession to the Convention will take place. 66. The European Union uses the Council of Europe conventions
as the basis for establishing its own standards. For instance, the
2007 Council of Europe Convention on the Protection of Children
against Sexual Exploitation and Sexual Abuse directly inspired the
adoption of EC Directive 2011/95. Similarly, some EC directives have influenced certain
Council of Europe conventions; for instance, the 2001 Additional
Protocol to the Convention for the Protection of Individuals with
regard to Automatic Processing of Personal Data was influenced by
Directive 94/46/EC. In some instances, however, the European Union
advises EU member States not to ratify certain Council of Europe
conventions which have been signed by many Parties. For instance,
the 2001 European Convention on the Legal Protection of Services,
based on, or consisting of, Conditional Access (ETS No. 178), which
has been ratified by seven EU member States, has been denounced by
four of them as the European Union had recommended that its member
States stop the process of accession to this convention. This “duty
of abstention” has come into play in cases where the European Union has
substantial authority to enact regulations in the same field – for
example the Additional Protocol to the Council of Europe Convention
for the Prevention of Terrorism, which had been signed by a number
of EU States and by the European Union itself, until the European
Commission decided to draw up a specific directive in this field.
This counterproductive measure was all the more regrettable as the
Council of Europe had a unique position in this field on account
of the number of member States concerned by the problems of foreign terrorist
fighters. Another example of the counterproductive approach of the
European Union is the 2014 Macolin Convention (Council of Europe
Convention on the Manipulation of Sports Competitions), which has until
now been signed by 19 EU member States but ratified by only one,
thereby blocking its implementation not only in European Union member
States but also in the rest of Europe.
67. Taking into consideration the attractiveness of the Council
of Europe conventions to non-member States of the Council of Europe
and some challenges in regard to co-operation with the European
Union, the Assembly should also propose that the Committee of Ministers
clarify the rules covering the entire process of drawing up or revising
conventions to take greater account for example of the needs of
non-member States and of the European Union’s executive powers so
as to avoid any blocking of the process of preparing and ratifying
conventions.
68. Some structures set up by the European Union, such as the
Agency for Fundamental Rights and the EU Social Pillar, run the
risk of duplicating specific convention-based activities of the
Council of Europe. This should
urge both treaty organisations to closely co-operate in order to
avoid duplication and to foster synergy of activities, as was already
agreed in the Memorandum of Understanding in 2007: “The co-operation
will take due account of the comparative advantages, the respective
competences and expertise of the Council of Europe and the European
Union – avoiding duplication and fostering synergy –, search for
added value and make better use of existing resources. The Council
of Europe and the European Union will acknowledge each other’s experience
and standard-setting work, as appropriate, in their respective activities.”
This should
urge both treaty organisations to closely co-operate in order to
avoid duplication and to foster synergy of activities, as was already
agreed in the Memorandum of Understanding in 2007: “The co-operation
will take due account of the comparative advantages, the respective
competences and expertise of the Council of Europe and the European
Union – avoiding duplication and fostering synergy –, search for
added value and make better use of existing resources. The Council
of Europe and the European Union will acknowledge each other’s experience
and standard-setting work, as appropriate, in their respective activities.” 5. Standard setting, monitoring and assistance
69. The effectiveness of the convention-based
system of the Council of Europe depends on a close link between
the setting of standards by conventions, the monitoring mechanisms,
aimed at ensuring compliance with the commitments made by the member
States when acceding to the conventions, and technical co-operation
and assistance, conducted in the field to help member States to
integrate and introduce in practice the standards set by the Council
of Europe.
70. Although the Statute of the Council of Europe does not contain
a provision of a general nature conferring upon the Committee of
Ministers or any other organs a task of monitoring the implementation
of treaties, it was realised that having common standards was not
in itself sufficient to achieve unity in practice. Norms need active
supervision of compliance with these norms.
71. Both the Committee of Ministers and the Assembly have established
procedures to monitor member States' compliance with commitments,
including conventions. The Assembly has a general monitoring procedure
for all member States which are not subject to monitoring stricto sensu and specified monitoring
and post-monitoring procedures for some of the member States which
it carries out in co-operation with the parliamentary delegations
of the States concerned. While the Committee of Ministers procedures
are confidential, based principally on persuasion, peer pressure
and diplomatic negotiation, the work of the Assembly consisting
of parliamentary debate and the adoption of reports following fact-finding
visits by majority vote, significantly complements the system of
verification and assessment of the fulfilment of obligations and specific
commitments assumed and undertaken by member States.
72. Promoting the effective and efficient application of the Council
of Europe standards also required the setting up of intergovernmental
co-operation bodies in order to ensure continuity in the achievement
of the objective set out in the statute – drawing up standards,
ensuring their incorporation into domestic legislation and, if the
mechanism in question so required, carrying out monitoring.
73. Monitoring of European standards is carried out by several
specialised mechanisms which make it possible for the Council of
Europe to supervise the implementation of its standards, discern
cases of non-compliance, and propose solutions or address recommendations
to each of its member States.
74. The application of many European treaties is also followed
by several intergovernmental committees. These steering committees
(governed by Article 17 of the Statute) may be entrusted with the
task of examining the functioning and implementation of European
treaties. These committees bring
together representatives from member States and possibly from organisations
or non-member and observer States, which operate according to specific
rules and whose terms of reference are set out by the Committee
of Ministers. In certain cases, these activities can be conducted
by independent mechanisms which States have set up with the task of
supervising the functioning, application and implementation of international
instruments or by the Partial Agreements which are a particular
type of intergovernmental co-operation within the Organisation that
enable some member States not to take part in certain activities
which other States wish to maintain. Several other committees have
been set up directly under a treaty and are thereby not governed
by Article 17 of the Statute.
bring
together representatives from member States and possibly from organisations
or non-member and observer States, which operate according to specific
rules and whose terms of reference are set out by the Committee
of Ministers. In certain cases, these activities can be conducted
by independent mechanisms which States have set up with the task of
supervising the functioning, application and implementation of international
instruments or by the Partial Agreements which are a particular
type of intergovernmental co-operation within the Organisation that
enable some member States not to take part in certain activities
which other States wish to maintain. Several other committees have
been set up directly under a treaty and are thereby not governed
by Article 17 of the Statute. 75. In the past, the Assembly made several attempts to establish
a judicial organ which would generally be competent for the interpretation
of Council of Europe treaties. Although none of these proposals
were taken up by the Committee of Ministers, the Committee of Wise
Persons, set up after the Second Summit in 1997, considered that
it would be useful if future Council of Europe conventions would
include specific provisions concerning their interpretation. It
referred to the possibility of asking the Venice Commission, a consultative body
within the Council of Europe, to give non-binding opinions on the
interpretation of existing treaties for which interpretation mechanisms
are not available.
5.1. Specific
monitoring mechanisms
5.1.1. European Court of Human Rights
76. In the European Convention
on Human Rights, the Organisation’s main treaty, an international enforcement
machinery was established. To ensure the observance of the engagements
undertaken by member States, the European Court of Human Rights
was set up in Strasbourg. The Court, which is considered the most
effective international human rights control mechanism in existence
today, deals with individual and inter-State petitions. At the request
of the Committee of Ministers, the Court may also give advisory
opinions concerning the interpretation of the Convention and its
protocols. The Committee of Ministers has also the power to ask
the Court for an interpretation of a judgment. The parties to a
case must abide by the judgments of the Court and take all necessary
measures to comply with them. The Committee of Ministers supervises
the execution of judgments which are binding on States Parties.
The Secretary General of the Council of Europe may request parties
to provide explanations regarding the manner in which their domestic
law ensures the effective implementation of the Convention.
77. States enjoy certain discretion as to how to give effect to
the Court’s judgments by means of corrective measures, which may
include constitutional and legislative amendments, organisational
and administrative reforms, as well as adjustments reflected in
the case law of the highest judicial organs. Convention standards, enriched
by the Court’s case law, create a dynamic and continuously evolving
body of law which reflects the “common European standards”.
78. The general acceptance of the Convention by all member States
and its compulsory supervision mechanism in the 1990s has made an
essential contribution to the development of confidence in European relations
through the development of a real common standard of governance
in to the whole of Europe, based on democracy, the rule of law and
respect for human rights. The
evolving interpretation of the Convention by the Court and the effective
supervision of the execution of its judgments ensure a constant
improvement of the legal systems of member States. However,
several countries – i.e. Azerbaijan, Italy and the United Kingdom –
were or are challenging the Court's authority, in relation to judgments
of their national constitutional courts. Recently, Russia adopted
a law on the priority of national law over international court rulings,
although the Russian Constitution and laws repeatedly acknowledge
the binding nature of international law and treaty organisations.
Overcoming these conflicting opinions on the binding nature of judgments
of the Court should be one of the priorities of the Council of Europe.
The
evolving interpretation of the Convention by the Court and the effective
supervision of the execution of its judgments ensure a constant
improvement of the legal systems of member States. However,
several countries – i.e. Azerbaijan, Italy and the United Kingdom –
were or are challenging the Court's authority, in relation to judgments
of their national constitutional courts. Recently, Russia adopted
a law on the priority of national law over international court rulings,
although the Russian Constitution and laws repeatedly acknowledge
the binding nature of international law and treaty organisations.
Overcoming these conflicting opinions on the binding nature of judgments
of the Court should be one of the priorities of the Council of Europe.5.1.2. Council of Europe Commissioner for Human Rights
79. The Commissioner for Human
Rights is an independent and impartial non-judicial institution
within the Council of Europe, mandated to promote awareness of and
respect for human rights in the 47 member States. The Commissioner’s
activities focus on three major, closely-related areas: on a system
of country visits and dialogue with national authorities and civil
society; thematic reporting and advising on the systematic implementation
of human rights; and awareness-raising activities. The
Commissioner carries out visits to member States to monitor and
evaluate the human rights situation. He meets not only with the
highest representatives of government and parliament and the judiciary,
but also with ordinary people, in prisons, centres for asylum seekers,
schools, orphanages and settlements populated by vulnerable groups.
The Commissioner has the right to intervene ex
officio as a third party in the proceedings of the European
Court of Human Rights.
The
Commissioner carries out visits to member States to monitor and
evaluate the human rights situation. He meets not only with the
highest representatives of government and parliament and the judiciary,
but also with ordinary people, in prisons, centres for asylum seekers,
schools, orphanages and settlements populated by vulnerable groups.
The Commissioner has the right to intervene ex
officio as a third party in the proceedings of the European
Court of Human Rights.5.1.3. European Committee on Social Rights
80. The European Social Charter,
the counterpart of the European Convention on Human Rights in the sphere
of economic and social rights, has set up an international system
of supervision of its application by the Parties based on national
reports. Every year the Parties submit a report on some of the accepted
provisions of the Charter indicating how they implement the Charter
in law and in practice. The European Committee on Social Rights,
an independent quasi-judicial body, examines the reports and decides
whether or not the situations in the countries concerned are in
conformity with the Charter by adopting conclusions. The ECSR adopts
also decisions regarding collective complaints of violations. If
a Party takes no action on a decision of non-conformity of the European
Committee on Social Rights, the Committee of Ministers may address
a recommendation to that member State, asking that the situation
be changed in law and in practice. In 2014, the Secretary General
launched the Turin Process which aims at strengthening the normative
system of the Charter within the Organisation and in its relationship
with EU law. In order to reach its objective, namely that of improving
the implementation of social rights at national level, the European
Social Charter should become the central column of the newly adopted
European Pillar of Social Rights with the collective complaints procedure
provided for in the Additional Protocol to the Charter crowning
the whole.
5.1.4. CPT
81. The Convention for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment provides
for the setting up of an international committee empowered to visit
all places where persons are deprived of their liberty by a public
authority. This committee of independent experts may make recommendations
and suggest improvements in order to strengthen, if necessary, the
protection of persons visited from torture and from inhuman or degrading
treatment or punishment. This preventive, non-judicial mechanism
is an important addition to the system of protection already existing
under the European Convention on Human Rights.
5.1.5. Other monitoring mechanisms
82. ECRI, the European Commission
on Combating Racism and Intolerance, is the Council of Europe's monitoring
body which specialises in questions relating to the fight against
racism, discrimination, xenophobia, anti-Semitism and intolerance.
It carries out country monitoring activities, in five-year cycles,
nine or ten countries being covered every year. Before publication
of a country report, the commission engages in a confidential dialogue
with the national authorities.
83. GRECO, the Group of States against Corruption, was established
by the Council of Europe to monitor member States' compliance with
the organisation's anti-corruption standards. Currently it comprises 49 member
States (48 European countries and the United States). Its objective
is to improve the capacity of its members to fight corruption by
monitoring their compliance with the Council of Europe anti-corruption instruments,
such as the Criminal and Civil Law Conventions on Corruption.
84. GRETA, the Group of Experts on Action against Trafficking
in Human Beings is responsible for monitoring the implementations
of the Council of Europe's Convention on Action against Trafficking
in Human Beings. Member States which do not fully respect the measures
contained in the Convention will be required to step up their action.
85. MONEYVAL, the Committee of Experts on the Evaluation of Anti-Money
Laundering Measures, is a Council of Europe anti-money laundering
evaluation and peer pressure mechanism. Its objective is to improve the
capacities of its States to defend themselves, the international
community and the global financial system against the threats from
money laundering and terrorist financing, to be achieved through
rigorous cycles of mutual evaluations and regular country-by-country
follow-up processes for deficiencies identified by MONEYVAL reports.
86. GREVIO, the Group of Experts on Action against Violence against
Women and Domestic Violence, is the independent expert body which
together with the Committee of the Parties – a political body which
is composed of representatives of the Parties to the Istanbul Convention
and is also responsible for the election of GREVIO members – monitors
the implementation of this Convention. The Istanbul Convention provides
for two types of monitoring procedures: a country-by-country evaluation
procedure and a special inquiry procedure.
87. The Advisory Committee of the Framework Convention for the
Protection of National Minorities is the dynamic monitoring mechanism
for that Convention. It involves country visits and country-specific
opinions by the Committee, which consists of independent experts.
88. The Committee of Experts of the Charter of Regional and Minority
Languages monitors the application of the Charter. The Charter provides
for a monitoring mechanism to evaluate at three-year intervals how
the treaty is applied in a member State. Until now the Charter has
been ratified by 25 States, and signed by eight; six States have
committed themselves to ratifying it but have not yet done so.
5.2. Programmes and action plans
89. Over the years, the Council
of Europe has gradually set up a large number of intergovernmental programmes
and action plans covering fields as varied as the
functioning of democratic institutions, the efficiency and independence
of judicial systems, social rights and health, culture, education,
youth and sport. These programmes should support the implementation
of conventions, ratified by the countries involved, as well as enhance
the capacities of national institutions to establish practices in
line with Council of Europe standards. These action plans try to
reflect the priorities defined jointly by a member State and the
Council of Europe’s Secretariat, as is the case for example in the
Action Plan for Ukraine 2015-2017 and the Action Plan for Azerbaijan
2014-2016.
covering fields as varied as the
functioning of democratic institutions, the efficiency and independence
of judicial systems, social rights and health, culture, education,
youth and sport. These programmes should support the implementation
of conventions, ratified by the countries involved, as well as enhance
the capacities of national institutions to establish practices in
line with Council of Europe standards. These action plans try to
reflect the priorities defined jointly by a member State and the
Council of Europe’s Secretariat, as is the case for example in the
Action Plan for Ukraine 2015-2017 and the Action Plan for Azerbaijan
2014-2016.90. National action plans should be drawn up to address shortcomings
identified in the member States concerned by the various Council
of Europe monitoring mechanisms and its political organs: the Assembly
and the Committee of Ministers. To ameliorate this process, there
should be greater consultation between departments in the Secretariat
over the drawing up of targeted co-operation programmes in order
to identify the key problems to be solved, also taking into consideration
the information provided by parliament (and its national delegations
to the Assembly) and civil society. Overall, the results of concrete
national actions plans should contribute more to general strategic
action plans for all member States.
91. Bearing in mind the endemic problems in many member States,
in particular corruption, joint action plans could be developed,
open to all member States which are engaged in the fight against
corruption as an absolute need to build a sustainable rule of law-based
society. The development of such joint action plans also has the
potential to show that many problems are not limited to only one
or a few member States and therefore require attention in all member
States. Action plans should not therefore be limited to a small
number of countries but become widespread.
92. Effective action plans need effective and sufficient funding.
Therefore, it is necessary to find innovative ways to attract enough
interested partners to provide the necessary funding while avoiding
that particular interests lead to a imbalance in action plans.
93. Since the 1990s, the Council of Europe receives support from
the European Commission for these programmes. Since the 2005 Warsaw
Summit, and the Memorandum of Understanding between the two organisations,
the European Union contributes to a large number of specific programmes
of the Council of Europe. However, sometimes contradictions appear
between the ideas of the Council of Europe how to help best member
States in implementing their convention-based obligations and the
priorities of the European Union, or more precisely: the European
Commission, with regard to these countries. Thanks to the European Commission,
substantial funds are available for programmes and action plans
in member States which are subject to the EU neighbourhood policy or
other EU priorities. For other member States which are in this respect not a priority
for the European Commission, funding for programmes and action plans
is not as easy to obtain.
or
other EU priorities. For other member States which are in this respect not a priority
for the European Commission, funding for programmes and action plans
is not as easy to obtain.6. Conclusions and proposals
94. The Council of Europe’s convention-based
system of collective guarantees has substantially helped to improve
the functioning of democratic institutions, to develop the rule
of law and to protect and promote human rights as required by the
Council of Europe Statute. As a result, common solutions to many
common problems and challenges have been found. The Council of Europe
has thus been a key player in the efforts to maintain and develop
democratic security and stability on our continent. However, there
are still huge gaps between the texts adopted and the reality of
our societies, notably as regards the human rights formulated in
key Council of Europe conventions and their realisation in practice.
95. Because of these gaps, notably caused by the non-effective
implementation of these rights at the national level, thousands
of those placed under the jurisdiction of State Parties to the Convention
apply each year to the European Court of Human Rights, a procedure
frequently requiring considerable time before justice is effectively
achieved. Additional means and powers could also significantly benefit
other monitoring bodies such as the European Committee for Social
Rights, the CPT, and the different steering committees. Therefore, additional
support from member States would be much welcomed to foster the
recent reform by the Secretary General of the Council of Europe
which aims at distributing resources where they are the most needed.
96. Several reforms of the Court have been agreed to by the member
States, but without sufficient improvements of procedures at all
levels, including in the member States themselves to ensure speedy compliance
with the Court’s judgments and reinforcement of the Committee of
Ministers’ supervision so that States really abide by them, these
gaps between formulating and guaranteeing rights will remain. This
will inevitably undermine the fundamental guarantees provided by
the Council of Europe’s convention-based system in Europe. More
resources should be provided for concrete co-operation programmes
to support member States in implementing the Court’s judgments at
national level, such as the European Programme for Human Rights
Education for Legal Professionals (HELP), large-scale tailor-made
projects agreed with specific countries, or specific activities
aimed directly at facilitating the implementation of complex judgments.
Co-operation projects have proved to be an efficient platform to
exchange good practices on the implementation of Council of Europe
standards and this should be further encouraged. Also the Committee
of Ministers must improve the effectiveness of its support through
supervision. Recent efforts in this regard, notably improved co-ordination
with other Council of Europe bodies, better visibility of positive
results obtained and better exchanges of good practices (thematic
debates), are developments to be welcomed.
97. Attempts to increase the powers of other bodies set up to
secure respect for human rights such as the European Committee on
Social Rights and the CPT have not materialised to date. Because
of financial and organisational restraints, intergovernmental steering
committees, which have to follow up the consequences of shortcomings
identified by monitoring mechanisms, are less active and effective
as would be needed to optimise the convention-based system.
98. The Council of Europe acquis after
seven decades of intergovernmental co-operation via the convention-based
system is not entirely a success story. Indeed, many important conventions
have been developed, but formulating rights without guaranteeing
them effectively creates cynical citizens and encourages a lack
of trust towards national authorities, and in the value of the collective
guarantees set up by the Council of Europe and by other international
organisations.
99. To ensure in the future the effective continuation and the
strengthening of the convention-based system, member States will
have to provide the Council of Europe with additional resources.
In exchange, member States are entitled to demand clear results
from the Council of Europe, including its instruments and its mechanisms.
This said, a basic fact remains. The main responsibility for guaranteeing
that rights are protected rests on national authorities. A reinforcement
of Council of Europe resources in no way obviates the need for providing
domestically the resources required for an effective implementation
of these rights.
100. The Assembly and the Committee of Ministers, bear – together
with the member States – the responsibility for the convention-based
system in Europe, as stated in Article 15.a of
the 1949 Statute. These two statutory organs of the Council of Europe
should therefore advocate that the upcoming Summit of Heads of State
and Government, which is now under preparation, should
discuss the future of the convention-based system of the Council
of Europe, on the basis of a thorough evaluation.
should
discuss the future of the convention-based system of the Council
of Europe, on the basis of a thorough evaluation.101. Meanwhile, the Assembly should reinforce its role as the political
engine of the Council of Europe in the examination of the need for
new conventions to address new challengers, like the ones in the
field of emerging technologies and their convergence, as well as
a facilitator of ratification and implementation processes. It should
foster its relations with the Committee of Ministers, the other
statutory body of the Organisation, to achieve more synergy in ideas
and activities (like in the “One in five” campaign to stop sexual
violence against children for the Lanzarote Convention). The Assembly
should review its working methods and monitoring mechanisms in order
to increase its effectiveness, as well as its credibility and visibility,
as the pan-European platform for parliamentary dialogue.
102. The Assembly should therefore call on the Committee of Ministers
and the Secretary General of the Council of Europe to:
- add the future of the Council of Europe convention-based system to the agenda of the upcoming Summit of Heads of State and Government;
- adequately prepare, in due time before the Summit:
a. an in-depth evaluation of the effectiveness of the existing conventions and their monitoring mechanisms, and proposals to substantially strengthen the convention-based system, in the light of what is stated in Article 1 of the Statute of the Council of Europe;b. an evaluation of the effectiveness of the assistance programmes for the implementation of the standards set out in the conventions and an assessment of improvements needed;c. proposals on how to strengthen the effectiveness of the European Court of Human Rights, by improving domestic judicial procedures to give justice to citizens, promoting effective implementation in all member States of judgments of the Court, and appropriate funding of the Court, in line with decisions taken at the Third Summit in Warsaw;d. proposals on how to broaden the scope of application of the European Social Charter to all member States by having them ratify the Charter as soon as possible, how to expand its strong built-in monitoring mechanism (collective complaints system) to all member States and how to make the revised European Social Charter the main reference and common social rights benchmark for the European Pillar of Social Rights;e. a general evaluation of relations between the Council of Europe and the other main European organisations (European Union, Eurasian Economic Union, Nordic Council, Organization for Security and Co-operation in Europe (OSCE), Organisation for Economic Co-operation and Development (OECD)) with regard to the convention-based system;f. a consideration of the desirability of a European–Council of Europe Memorandum of Understanding on the participation of the European Union in Council of Europe conventions which could provide general operating rules (such as voting rights, speaking rights, reporting, and financial arrangements);g. a road map for EU accession to the European Convention on Human Rights, in line with the obligation formulated in the Lisbon Treaty;
- ensure that sufficient financial and human resources be allocated to convention-based and intergovernmental activities in which all member States should be able to participate on an equal footing;
- involve the Parliamentary Assembly in the preparatory activities of these evaluations and (re)considerations, in line with Article 15.a of the Statute;
- involve the Parliamentary Assembly in an appropriate way in the upcoming Summit of Heads of State or Government;
- invite the Heads of State and Government, when participating in their upcoming Summit, to recognise, assert, defend and, as necessary, further develop and properly fund the convention-based system, to the benefit of all European citizens and inhabitants – and all others to whom these conventions are or could be applied.
Appendix – Conventions with numerous ratifications and considered as key (source SG/Inf(2012)12)
(open)|
No. |
Title, year |
Comments |
Parties |
||
|
Subject matter 1: Human Rights |
|||||
|
005 |
Convention for the Protection of Human Rights and Fundamental Freedoms – ECHR (1950) |
Referred to in the Appendix to PACE Resolution 1732 (2010). |
47 |
||
|
009 |
Protocol to the ECHR (1954) |
Referred to in the Appendix to PACE Resolution 1732 (2010). |
45 |
||
|
046 |
Protocol No. 4 to the ECHR, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto (1963) |
Referred to in the Appendix to PACE Resolution 1732 (2010). |
43 |
||
|
108 |
Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (1981) |
Referred to in the Appendix to PACE Resolution 1732 (2010). |
44 |
||
|
114 |
Protocol No. 6 to the ECHR concerning the Abolition of the Death Penalty (1983) |
Referred to in the Appendix to PACE Resolution 1732 (2010). |
46 |
||
|
117 |
Protocol No. 7 to the ECHR (1984) |
Referred to in the Appendix to PACE Resolution 1732 (2010). |
43 |
||
|
126 |
European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1987) |
Referred to in the Appendix to PACE Resolution 1732 (2010). |
47 |
||
|
181 |
Additional Protocol to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, regarding supervisory authorities and transborder data flows (2001) |
Considered as key by the Bureau of the CDCJ in its comments on the draft classification of conventions (6-7 July 2011). |
32 |
||
|
177 |
Protocol No. 12 to the ECHR (2000) |
Referred to in the Appendix to PACE Resolution 1732 (2010). |
18 |
||
|
187 |
Protocol No. 13 to the ECHR, concerning the abolition of the death penalty in all circumstances (2002) |
Referred to in the Appendix to PACE Resolution 1732 (2010). |
43 |
||
|
Subject matter 2: Rule of Law and Judicial Co-operation |
|||||
|
024 |
European Convention on Extradition (1957) |
Referred to in the Appendix to PACE Resolution 1732 (2010). |
50 |
||
|
030 |
European Convention on Mutual Assistance in Criminal Matters (1959) |
Referred to in the Appendix to PACE Resolution 1732 (2010). |
50 |
||
|
062 |
European Convention on Information on Foreign Law (1968) |
Considered as key by the Bureau of the CDCJ in its comments on the draft classification of conventions (6-7 July 2011). |
43 |
||
|
086 |
Additional Protocol to the European Convention on Extradition (1975) |
Referred to in the Appendix to PACE Resolution 1732 (2010). |
39 |
||
|
090 |
European Convention on the Suppression of Terrorism (1977) |
Referred to in the Appendix to PACE Resolution 1732 (2010). |
46 |
||
|
098 |
Second Additional Protocol to the European Convention on Extradition (1978) |
Referred to in the Appendix to PACE Resolution 1732 (2010). |
42 |
||
|
099 |
Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters (1978) |
Referred to in the Appendix to PACE Resolution 1732 (2010). |
43 |
||
|
112 |
Convention on the Transfer of Sentenced Persons (1983) |
Considered as key by the CDCP in its comments on the draft classification of conventions (CDPC(2011)13 of 7 July 2011). |
64 |
||
|
141 |
Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (1990) |
Considered as key by the CDCP in its comments on the draft classification of conventions (CDPC(2011)13 of 7 July 2011). |
48 |
||
|
173 |
Criminal Law Convention on Corruption (1999) |
Referred to in the Appendix to PACE Resolution 1732 (2010). |
43 |
||
|
182 |
Second additional protocol to the European Convention on Mutual Assistance in Criminal Matters (2001) |
Referred to in the Appendix to PACE Resolution 1732 (2010). |
27 |
|||
|
190 |
Protocol amending the European Convention on the Suppression of Terrorism (2003) |
Referred to in the Appendix to PACE Resolution 1732 (2010). |
31 |
|||
|
191 |
Additional Protocol to the Criminal Law Convention on Corruption (2003) |
Referred to in the Appendix to PACE Resolution 1732 (2010). |
28 |
|||
|
Subject matter 3: Democracy- 1: Local democracy |
||||||
|
122 |
European Charter of Local Self-Government (1985) |
Considered as key by the Bureau of the Congress in its comments on the draft classification of conventions (16 June 2011). |
45 |
|||
|
Subject matter 3: Democracy – 2: Environmental and Social affairs |
||||||
|
104 |
Convention on the Conservation of European Wildlife and Natural Habitats (1979) |
Considered as key by the Bureau of the CDCULT in its comments on the draft classification of conventions (8 July 2011). |
50 |
|||
|
Subject matter 3: Democracy – 3: Education, culture, media and sport |
||||||
|
018 |
European Cultural Convention (1954) |
Considered as key by the Bureau of the CDCULT in its comments on the draft classification of conventions (8 July 2011). |
50 |
|||
|
147 |
European Convention on Cinematographic Co-Production (1992) |
Considered as key by the Bureau of the CDCULT in its comments on the draft classification of conventions (8 July 2011). |
43 |
|||
|
165 |
Convention on the Recognition of Qualifications concerning Higher Education in the European Region (1997) |
Considered as key by the Lisbon Convention Bureau (21 June 2011) and the Bureau of the CDESR in their comments on the draft classification of conventions (July 2011). |
53 |
|||
|
Subject matter 3: Democracy – 4: Quality of the living environment of citizens |
||||||
|
143 |
European Convention on the Protection of the Archaeological Heritage (Revised) (1992) |
Considered as key by the Bureau of the CDPATEP in its comments on the draft classification of conventions (22-23 June 2011). |
42 |
|||