10 April 1995

Doc. 7277

REPORT on the honouring of obligations and commitments by member states of the Council of Europe

(Rapporteur: Mr COLUMBERG, Switzerland, Group of the European People's Party)


Summary

      The Assembly, in its Order No. 488 (1993), established a monitoring procedure of commitments entered into by the authorities of new member states.

      The report seeks to strengthen this monitoring procedure. In future, the procedure is to apply to the obligations and commitments of all member states of the Council of Europe. The monitoring procedure itself shall be made more effective by submitting the reports direct to the Assembly.

I. Draft order

1.       The Assembly, in Order No. 488 (1993), instructed its Political Affairs Committee and Committee on Legal Affairs and Human Rights "to monitor closely the honouring of commitments entered into by the authorities of new member states and to report to the Bureau at regular six-monthly intervals until all undertakings have been honoured".

2.       In Order No. 485 (1993) the Assembly instructed its Committee on Legal Affairs and Human Rights "to report to it when problems arise on the situation of human rights in member states, including their compliance with judgments by the European Court of Human Rights".

3.       In Resolution 1031 (1994) the Assembly observed "that all member states of the Council of Europe are required to respect their obligations under the Statute, the European Convention on Human Rights and all other conventions to which they are parties. In addition to these obligations, the authorities of certain states which have become members since the adoption in May 1989 of Resolution 917 (1989) on a special guest status with the Parliamentary Assembly freely entered into specific commitments on issues related to the basic principles of the Council of Europe during the examination of their request for membership by the Assembly. The main commitments concerned are explicitly referred to in the relevant opinions adopted by the Assembly."

4.       The Assembly considered in the same resolution that "persistent failure to honour commitments freely entered into will have consequences (...). For this purpose, the Assembly could use the relevant provisions of the Council of Europe's Statute and of its own Rules of Procedure ..."

5.       Taking also into account the declaration on compliance with commitments accepted by member states of the Council of Europe, adopted by the Committee of Ministers on 10 November 1994, the Assembly seeks to strengthen its own monitoring procedure, established in 1993.

6.       The Assembly therefore instructs its Committee on Legal Affairs and Human Rights (for report) and its Political Affairs Committee (for opinion) to continue monitoring closely the honouring of obligations and commitments in all member states concerned. To start the procedure, the Committee on Legal Affairs and Human Rights must take such a decision, in accordance with normal committee procedure.

7.       The two committees should work in close co-operation. They may report direct to the Assembly. Their reports should concern one single country and include a draft resolution in which clear proposals are made for the improvement of the situation in the country under consideration.

8.       The Assembly may sanction persistent failure to honour commitments, and lack of co-operation in its monitoring process, by the non-ratification of the credentials of a national parliamentary delegation, in accordance with Rule 6 of the Rules of Procedure.

9.       Should the country continue not to respect its commitments, the Assembly may address a recommendation to the Committee of Ministers requesting it to take the appropriate action provided for in Article 8 of the Statute of the Council of Europe.

10.       This order supersedes Order No. 488 (1993) and Resolution 1031 (1994).

II. Explanatory memorandum

by Mr COLUMBERG

1.       Mrs Halonen, who took the initiative which led to the adoption of Order No. 488 (1993) on commitments entered into by new member states, tabled a motion for a new order during the January 1995 part-session of the Assembly, on the honouring of commitments accepted by member states of the Council of Europe on their accession (Doc. 7225). This motion was referred by the Bureau to the Committee on Legal Affairs and Human Rights, for report, and to the Political Affairs Committee, the Committee on Relations with European Non-Member countries and the Committee on Rules of Procedure, for opinion (Ref. No. 1994).

2.       One of the reasons which motivated Mrs Halonen's wish to strengthen the monitoring procedure of the Assembly was the declaration on compliance with commitments accepted by member states of the Council of Europe, adopted by the Committee of Ministers on 10 November 1994.1 Since then, the Secretary General has elaborated on this idea.2

3.       The Assembly already discussed its monitoring procedure in depth during the April 1994 part-session, on the basis of a report drawn up by Mr Masseret.3 For this reason, I do not want to elaborate on the Assembly's current monitoring procedure in too great detail; nor do I want to change Mrs Halonen's draft order except in one point, to which I will come later. But I do want to give a short explanation of why I agree with Mrs Halonen that the Assembly's current monitoring procedure must be strengthened.

4.       Since the introduction of Order No. 488, both competent committees, the Committee on Legal Affairs and Human Rights and the Political Affairs Committee, have prepared reports on the honouring of commitments in Estonia, Slovakia, Bulgaria and Romania and have transmitted them to the Bureau. Reports on Lithuania and the Czech Republic may be forthcoming, as are new reports on Estonia and Slovakia (on behalf of the Committee on Legal Affairs and Human Rights alone), and on Romania and Bulgaria.

5.       The procedure described above has several shortcomings. The first one is that, since both competent committees operate on an equal footing, there is often a lack of co-ordination and timing between them. In the case of Estonia, for example, the report of the Committee on Legal Affairs and Human Rights was transmitted to the Bureau already on 25 January 1994, while the Political Affairs Committee transmitted its report only on 12 April 1994. Additionally, the rapporteurs came to different conclusions, so that monitoring of Estonia's commitments will only be continued by the Committee on Legal Affairs and Human Rights. In the case of Slovakia, the time lag between the two committees in transmitting their reports to the Bureau was far more than six months. In consequence the first report transmitted to the Bureau is often already out of date by the time the second one has been transmitted. Only in the case of Romania and Bulgaria was the co-ordination between the two committees good: the rapporteurs went on a joint visit to these countries and in each case prepared a joint memorandum.

6.       The second problem is that the two committees concerned report only to the Bureau, not to the Assembly. There are several disadvantages to this practice: the reports of the committees stay confidential until the Bureau declassifies them (which it has done so far only with the reports on Estonia, Slovakia and Romania). This means that even members of the Assembly often stay uninformed about the current developments, not to speak of member governments, the academic community, the media and the general public. What is worse, none of these reports, into which the rapporteurs and the committees concerned have invested a considerable amount of time and work, have ever been transmitted to the Assembly for debate (except as an addendum to the progress report in the case of Estonia alone4), so that, in effect, the Assembly is deprived of the opportunity to make a judgment on the honouring of the commitments member countries entered into vis-ŕ-vis the Assembly, that is vis-ŕ-vis itself.

7.       As a result, the current procedure is very weak. Member states who are not honouring their commitments do not risk being accused of this in public, having their case debated in the Assembly, or having the Assembly take any actions to make them honour their commitments. The worst consequence the authorities of these states need to fear is perhaps a mild rebuke "behind closed doors" — not something that will make many member states who fail to honour their commitments change their minds. Indeed, the Assembly needs to strengthen its monitoring procedure, if it hopes to exert any worthwhile influence on recalcitrant member states at all.

8.       The draft order proposed seeks to remedy these shortcomings. Most importantly, it gives the competent committees the right to take their reports direct to the Assembly. But I also propose to give a leading role to one of the committees in the new set-up. These two proposals work in tandem: in Assembly debates, it is normal for one committee to be seized for report, while the others are seized for opinion. This enables the leading committee to set a timetable by proposing a debate in the Plenary Assembly; a timetable the other committees have to adhere to. By setting the Assembly's monitoring procedure in the framework of a normal Assembly debate, one kills two birds with one stone: one avoids the muddle and confusion emanating from two committees submitting reports on an equal footing, with little or no co-ordination and timing between them, and one ensures that the Assembly's monitoring procedure becomes transparent and influential by allowing for a public debate.

9.       I mentioned above that I changed Mrs Halonen's proposal for an order in one point. This is, that I propose to seize the Committee on Legal Affairs and Human Rights for report, and the Political Affairs Committee, for opinion. There are two reasons for this change: firstly, I think it is clear that the Committee on Legal Affairs and Human Rights should be the leading committee, since most of the commitments entered into by member states on their accession are of a legal nature (for example, the commitment to sign and ratify the European Convention on Human Rights and a number of its protocols) or concern human rights (for example, the commitment to conduct policy concerning the rights of minorities according to Assembly Recommendation 1201). In addition, the Assembly, in Order No. 485 (1993), already instructed the Committee on Legal Affairs and Human Rights to report to it when problems arise on the situation of human rights in member states, so there should be no doubt that the committee is competent in these matters. However, I think it is also clear that the Political Affairs Committee should give an opinion, since the consequences of non-honouring of commitments could be political.

10.       The last point I would like to make concerns the title of this draft order. As will have been noticed, there is no more reference to "new" member states. This is because, while those states who became members of the Council of Europe only recently did enter into more specific commitments than those who became members a long time ago, all member states accepted obligations on their accession: to abide by the Statute of the Council of Europe, for example. The Assembly should not lay itself open to accusations of making an unfair and arbitrary distinction between "old" and "new" member states, especially since it might wish to monitor this kind of commitment in regard of certain "old" member states, as well. I think the proposed draft order thus strengthens the monitoring procedure of the Assembly in every way.

11.       Taking into account the comments of my colleagues on the draft order during the meeting of the Committee on Legal Affairs and Human Rights in Paris on 13 March 1995, I have made the order more precise on one point: to start the monitoring procedure, the Committee on Legal Affairs and Human Rights must take such a decision according to normal committee procedure. This has, actually, been the de facto situation ever since the Assembly started its monitoring procedure: the committees concerned decide to start the procedure concerning a particular country, appoint a rapporteur (preferably the rapporteur on accession, if applicable), and then the rapporteur draws up a report, possibly after a visit to the country concerned. I propose to retain this procedure.

APPENDIX I

Declaration

on compliance with commitments

accepted by member states of the Council of Europe

(Adopted by the Committee of Ministers on 10 November 1994

at its 95th Session)

      The Committee of Ministers,

      Bearing in mind:

      —th       e vocation of the Council of Europe to promote the reinforcement of democratic security in Europe, as stressed by the Vienna Summit (October 1993), where heads of state and government also resolved to ensure full compliance with the commitments accepted by all member states within the Council of Europe;—

      —th       e commitments to democracy, human rights and the rule of law accepted by the member states under the Council's Statute, the European Convention on Human Rights and other legal instruments;—

      —th       e importance of the strict compliance with these commitments by every member state;—

      —th       e statutory responsibility incumbent upon itself for ensuring full respect of these commitments in all member states, without prejudice to other existing procedures, including the activities of the Parliamentary Assembly and conventional control bodies;—

      —th       e need to facilitate the fulfilment of these commitments, through political follow-up, carried out constructively, on the basis of dialogue, co-operation and mutual assistance, De

      Decides as follows:

1.       The Committee of Ministers will consider the questions of implementation of commitments concerning the situation of democracy, human rights and the rule of law in any member state which will be referred to it either:

      —by       member states,—

      —by       the Secretary General, or—

      —on       the basis of a recommendation from the Parliamentary Assembly.Wh

      When considering such issues the Committee of Ministers will take account of all relevant information available from different sources such as the Parliamentary Assembly and the CSCE.

2.       The Secretary General will forward to the Committee of Ministers to this end information deriving from contacts and co-operation with member states that are liable to call for the attention of the Committee of Ministers.

3.       The Committee of Ministers will consider in a constructive manner matters brought to its attention, encouraging member states, through dialogue and co-operation, to take all appropriate steps to conform with the principles of the Statute in the cases under discussion.

4.       The Committee of Ministers, in cases requiring specific action, may decide to:

      —re       quest the Secretary General to make contacts, collect information or furnish advice;—

      —is       sue an opinion or recommendation;—

      —fo       rward a communication to the Parliamentary Assembly;—

      —ta       ke any other decision within its statutory powers.5.

5.       The Committee of Ministers will continue to seek greater efficacity in its procedures with a view to ensuring compliance with commitments, in the framework of a constructive dialogue.

APPENDIX II

Extract from:

Further enlargement of the Council of Europe,

political conditions and implications:

Reflections by the Secretary General

      "...

11.       The considerable effort required of the seven countries in question, both before and after their possible future accession, must be matched by greater efforts by the Organisation in two directions:

      1.       monitoring of compliance with the undertakings given by the member states;

      2.       support for continued reform and for the reinforcement of democracy.

12.       Whether political or judicial, monitoring — through, inter alia, the Committee of Ministers, the Assembly, the organs of the Human Rights Convention and of the Convention for the Prevention of Torture — already holds an important place in the Organisation and one which is destined to expand further.

      It is vital for the Organisation's credibility that the monitoring process can be extended to all states, no matter how long-standing their membership. Any risk of inequitable treatment or relativisation of standards will thereby be avoided. The decision by the Committee of Ministers at its session on 10 November 1994 marks a step in this direction. It should shortly be supplemented by procedural proposals by an ad hoc group of the Deputies for its effective implementation.

13.       In this context the question is beginning to be asked whether our standards could be interpreted and applied differently, in a more or in a less exacting and punctilious manner, depending on the level of legal and institutional development of the state concerned.

      At bottom, the Secretary General does not think they can. The principles and obligations to which all member states are required to subscribe cannot be applied on an ŕ la carte basis. It is nonetheless probable that some types of problem will arise in some societies and not in others. This question merits careful examination, and the Secretariat has taken the initiative in assessing the impact which the participation of a large number of new parties could have on the functioning of our conventions.

      ..."

      Reporting committee: Committee on Legal Affairs and Human Rights.

      Budgetary implications for the Assembly: none.

      Reference to committee: Doc. 7225 and Reference No. 1994 of 30 January 1995.

      Draft order adopted by the committee on 10 April 1995 with 23 votes in favour, 0 votes against and 4 abstentions.

      Members of the committee: Mrs Err (Chairperson), MM. Schwimmer, Jansson, (Vice-Chairpersons), Amaral, Arnalds, Bartumeu Cassany, Bentkowski (Alternate: Bartodziej), Berti, Bindig, Borg, Bučar, Candal, Cioni, Columberg, Croze, Endziņš (Alternate: Mrs Birzniece), Fogaš, Frunda, Sir Peter Fry (Alternate: Sir Dudley Smith), MM. Fuhrmann, Galanos (Alternate: Christodoulides), Mrs Gelderblom-Lankhout, MM. Guenov, Hagĺrd, Mrs Holand, MM. Hunault, Inönü (Alternate: Mimaroğlu), Mrs Jaani, MM. Jaskiernia, Kairys, Karas, Kastanidis, Kempinaire, Kirca, Lord Kirkhill, MM. Koschyk, Loutfi, van der Maelen (Alternate: Seeuws), Maginas, McDowell (Alternate: Wallace), Mészáros, Moeller, Németh, Poppe, Rathbone, Rhinow, Rodeghiero, Robles Fraga (Alternate: Lopez Henares), Mrs Scopelliti, MM. Severin, Solé Tura, Mrs Soutendijk-van Appeldoorn (Alternate: Mr Woltjer), Mrs Theorin, MM. Trojan, Vinçon, Mrs Wohlwend.

      N.B.       The names of those members who took part in the vote are printed in italics.

      Secretaries to the committee: Mr Plate, Ms Bakardjieva and Ms Kleinsorge.


1 1See Appendix I.

2 2See Appendix II: extract from "Further enlargement of the Council of Europe, political conditions and implications: Reflections by the Secretary General" (GREL (95) 7).

3 3Resolution 1031 (1994), Doc. 7037.

4 1Doc. 7080, Addendum IV.