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Doc. 8439
15 June 1999
Council of Europe Commissioner for Human Rights
Communication
Committee of Ministers
Letter from the Chairman of the Ministers' Deputies to the President of the Assembly, dated 21 May 1999
Mr President,
I have the honour to refer to Opinion No. 210 (1999) of the Parliamentary Assembly concerning the terms of reference of the Council of Europe Commissioner for Human Rights, and to recall that my colleague, the Permanent Representative of Austria and Chairman of the Ministers' Deputies' Rapporteur Group on Human Rights, announced on the occasion of the Joint Committee meeting on 29 April last that the Chairman of the Ministers' Deputies would be writing to you to provide a detailed explanation of the Deputies' decisions concerning this Opinion.
I should first like to express our appreciation of the speed and diligence with which this Opinion was produced, and for the Assembly's evident commitment to the project, evinced in particular by Mr Bindig's excellent report.
The Rapporteur Group on Human Rights, which has been responsible for preparing the draft which was transmitted to the Parliamentary Assembly for opinion, has held several meetings devoted to the analysis of the Assembly's proposals. During these discussions, there was much sympathy for these proposals, even if some of them were not agreed to. I should like to point out the reasons for these conclusions.
To begin with the recommendations in the Opinion of which the Rapporteur Group recommended acceptance:
There was much discussion concerning the Commissioner's co-operation with other international institutions, and the Rapporteur Group has tried, by modifying the text, to satisfy the spirit if not the letter of the proposed amendment to Article 4.i.
With regard to Article 6, the Rapporteur Group accepted the addition of the words "national parliaments" as a constructive addition to the text, and also agreed to the Assembly's suggestion not to include the proposal to forbid the Commissioner to have contact with terrorist organisations.
The Group also accepted, subject to the advice of the Legal Advisor, the proposal to add a second paragraph to Article 7 concerning the privileges and immunities of the Commissioner.
In addition, the Rapporteur Group initially accepted the need to provide in the Explanatory Note, clarification of the references to "other human rights instruments of the Council of Europe" and to "human rights structures". However, the Deputies subsequently decided that it was inadvisable to seek further to define the "Human rights instruments of the Council of Europe" in the interest of the Commissioner's freedom and flexibility of action.
In Article 11, the Rapporteur Group added wording to convey the sense of the Assembly's amendment "The candidates should be capable of meeting the demands of a full-time office".
Finally, the Rapporteur Group accepted the proposal to add the term "non-renewable" to Article 12: this is a question which had already been the subject of some debate in the Rapporteur Group, which appreciated the Assembly's help in resolving an outstanding question.
I now come to those recommendations which, after much debate, the Rapporteur Group did not proposed to accept:
The existing wording of Article 2, paragraph 1, is a closely negotiated formula aimed at establishing a compromise between those governments who favour an interventionist role for the Commissioner and those who do not. In the drafters' opinion, the existing wording, read in conjunction with the whole of the text, provides a balanced picture of the Commissioner's task, while the more interventionist wording proposed by the Assembly would have upset that balance. The same applies to the proposal to invert sub-paragraphs a and b of Article 4.
With regard to Article 2, paragraph 2, the doctrine according to which the Commissioner should not interfere in the jurisdiction of the European Court of Human Rights has been an absolute priority for the drafters. It was also firmly insisted upon by the Court itself when consulted. In addition, the proposed amendment raises questions of definition, which could give rise to problems of interpretation.
The proposed amendment to sub-paragraph 4.e was not agreed to for reasons linked with the "interventionist" question mentioned above in relation to Article 2.1. As for the proposed amendment to Article 4.f, the drafters took the view that there could be occasions when it would be appropriate for the Commissioner to address communications to the Committee of Ministers alone, for example, when providing information at the Committee's request.
With regard to the proposed amendment to Article 9, the Group preferred not to accept it, since it considers that the Committee of Ministers should retain control of the publication of documents submitted to it. As for the question of the number of candidates to be submitted to the Assembly for election, the Group preferred to maintain the number of three, in conformity with the procedures already established in relation to Secretaries General and Judges of the Court.
In Paragraph 11, the Group included wording inspired by the proposal contained in the Opinion, but decided not to accept the amendment, introduced during the Assembly's debate concerning the age-limit of the Commissioner. In the Group's view, this is a question more appropriately considered at the stage of examining candidatures.
As you know, the Resolution based on the final text was formally adopted by the Committee of Ministers at their 104th Session in Budapest, under the commemorative number Resolution (99) 50, of which I enclose copies in English and French. I draw your attention to the fact that, as a result of the addition of an introductory passage, the numbering of the paragraphs has been modified as compared with the version which was submitted to the Assembly for consideration.
Immediately following the Session, the Secretary General sent a letter to all member States requesting the submission of candidatures, and the Committee of Ministers has approved a timetable for the electoral procedure which is consistent with the aim of electing the Commissioner on the occasion of the September part-Session of the Assembly.
Please accept my renewed thanks for the Assembly's exemplary collaboration in this matter.
....
Signed: Justin HARMAN
Acting Chairman of the Ministers' Deputies
RESOLUTION (99)50
ON THE COUNCIL OF EUROPE
COMMISSIONER FOR HUMAN RIGHTS
(Adopted by the Committee of Ministers on 7 May 1999
at its 104th Session, Budapest)
The Committee of Ministers,
Considering that the aim of the Council of Europe is the achievement of greater unity between its Members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of human rights and fundamental freedoms;
Having regard to the decisions taken by the Heads of State and Government of the Member States of the Council of Europe at their Second Summit (Strasbourg, 10-11 October 1997);
Considering also that the 50th Anniversary of the Council of Europe provides an occasion to enhance further the work undertaken since its creation,
Decides to institute the office of Council of Europe Commissioner for Human Rights ("the Commissioner") with the following terms of reference:
Article 1
1. The Commissioner shall be a non-judicial institution to promote education in, awareness of and respect for human rights, as embodied in the human rights instruments of the Council of Europe.
2. The Commissioner shall respect the competence of, and perform functions other than those fulfilled by, the supervisory bodies set up under the European Convention of Human Rights or under other human rights instruments of the Council of Europe. The Commissioner shall not take up individual complaints.
Article 2
The Commissioner shall function independently and impartially.
Article 3
The Commissioner shall:
a. promote education in and awareness of human rights in the member States;
b. contribute to the promotion of the effective observance and full enjoyment of human rights in the member States;
c. provide advice and information on the protection of human rights and prevention of human rights violations. When dealing with the public, the Commissioner shall, wherever possible, make use of and co-operate with human rights structures in the member States. Where such structures do not exist, the Commissioner will encourage their establishment;
d. facilitate the activities of national ombudsmen or similar institutions in the field of human rights;
e. identify possible shortcomings in the law and practice of member States concerning the compliance with human rights as embodied in the instruments of the Council of Europe, promote the effective implementation of these standards by member States and assist them, with their agreement, in their efforts to remedy such shortcomings;
f. address, whenever the Commissioner deems it appropriate, a report concerning a specific matter to the Committee of Ministers or to the Parliamentary Assembly and the Committee of Ministers;
g. respond, in the manner the Commissioner deems appropriate, to requests made by the Committee of Ministers or the Parliamentary Assembly, in the context of their task of ensuring compliance with the human rights standards of the Council of Europe;
h. submit an annual report to the Committee of Ministers and the Parliamentary Assembly;
i. co-operate with other international institutions for the promotion and protection of human rights while avoiding unnecessary duplication of activities.
Article 4
The Commissioner shall take into account views expressed by the Committee of Ministers and the Parliamentary Assembly of the Council of Europe concerning the Commissioner's activities.
Article 5
1. The Commissioner may act on any information relevant to the Commissioner's functions. This will notably include information addressed to the Commissioner by governments, national parliaments, national ombudsmen or similar institutions in the field of human rights, individuals and organisations.
2. The gathering of information relevant to the Commissioner's functions shall not give rise to any general reporting system for member States.
Article 6
1. Member States shall facilitate the independent and effective performance by the Commissioner of his or her functions. In particular, they shall facilitate the Commissioner's contacts, including travel, in the context of the mission of the Commissioner and provide in good time information requested by the Commissioner.
2. The Commissioner shall be entitled, during the exercise of his or her functions, to the privileges and immunities provided for in Article 40 of the Statute of the Council of Europe and in the agreements made thereunder.
Article 7
The Commissioner may directly contact governments of member States of the Council of Europe.
Article 8
1. The Commissioner may issue recommendations, opinions and reports.
2. The Committee of Ministers may authorise the publication of any recommendation, opinion or report addressed to it.
Article 9
1. The Commissioner shall be elected by the Parliamentary Assembly by a majority of votes cast from a list of three candidates drawn up by the Committee of Ministers.
2. Member States may submit candidatures by letter addressed to the Secretary General. Candidates must be nationals of a member State of the Council of Europe.
Article 10
The candidates shall be eminent personalities of a high moral character having recognised expertise in the field of human rights, a public record of attachment to the values of the Council of Europe and the personal authority necessary to discharge the mission of the Commissioner effectively. During his or her term of office, the Commissioner shall not engage in any activity which is incompatible with the demands of a full-time office.
Article 11
The Commissioner shall be elected for a non-renewable term of office of six years.
Article 12
1. An Office of the Commissioner for Human Rights shall be established within the General Secretariat of the Council of Europe.
2. The expenditure on the Commissioner and the Office of the Commissioner shall be borne by the Council of Europe.