Doc. 8295

12 January 1999

Council of Europe Commissioner for Human Rights: draft terms of reference1

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Rudolf Bindig, Germany, Socialist Group

Summary

In 1999 the 50th Anniversary of the European Convention on Human Rights will be celebrated. In the course of these fifty years Europe has become the continent where human rights are legally guaranteed to all citizens and may be invoked before the European Court of Human Rights. However, some concrete measures still have to be taken to ensure that citizens are informed of their rights and that these rights are effectively guaranteed by the member states and their institutions. It is with this aim that it is foreseen to create a Human Rights Commissioner of the Council of Europe, whose terms of reference should be to promote the effective observance and full enjoyment of human rights in member states and human rights education and awareness.

I. Draft opinion

1.        Just as the newly elected, full-time European Court of Human Rights takes up its duties, the Committee of Ministers has transmitted the text of the draft terms of reference for a Council of Europe Commissioner for Human Rights to the Assembly for an opinion.

2.        For while the new full-time Court is expected to bring major procedural improvements, it is important to bear in mind that with the enlargement of the Council of Europe, the number of potential applicants has also grown considerably and is now around 900 million people.

3.        It is more important than ever, therefore, that the European Court of Human Rights should become what it was always meant to be, namely a subsidiary judicial body, intervening only when national legal systems fail.

4.        Instituting a Commissioner for Human Rights is likely to assist this process if he or she succeeds in the — essentially preventive — task which it is proposed to assign him or her.

5.        The Assembly considers that it is important to institute a Commissioner for Human Rights and that this should be done without delay, and at least in 1999.

6.        With regard to the draft terms of reference submitted to the Assembly, together with the opinion of the Steering Committee for Human Rights (CDDH), it notes that all of the Committee’s proposals have been incorporated in this draft. Overall, the proposals made by the CDDH represent improvements, not least because they provide some welcome clarification.

7.        The Assembly also agrees with the comments made by the CDDH concerning the use of non-sexist language in Council of Europe texts. The draft terms of reference should be amended to take account of this and when it comes to inviting nominations, the invitation should obviously be couched in non-sexist terms.

8.        The Assembly believes that the draft terms of reference of the Council of Europe Commissioner for Human Rights are to be welcomed. It recommends that the Committee of Ministers adopt them as swiftly as possible and by the 50th anniversary of the Council of Europe at any rate. This would enable the Commissioner to be elected by the Assembly in time to take up office by the 50th anniversary of the European Convention on Human Rights.

9.        It is therefore in a positive spirit that the Assembly recommends that the Committee of Ministers of the Council of Europe introduce the following amendments in the draft terms of reference of the Council of Europe Commissioner for Human Rights:

Article 2

An explanatory note should clarify the reference to “other human rights instruments of the Council of Europe”.

Article 2, paragraph 1

Modify paragraph 1 as follows:

Article 2, paragraph 2

Replace the last sentence by the following text:

Article 4

Invert the order of sub-paragraphs a and b.

Article 4.c

Add an explanatory note giving some examples of “human rights structures”, but not an exhaustive list.

Article 4.e

Replace the words “with their agreement, in their efforts to remedy” by “in remedying”.

Article 4.f

Replace this sub-paragraph by the following text:

Article 6

Delete the footnote.

In the last sentence of paragraph 1, after the word "governments", add the words "national parliaments".

Add the following sentence at the end of paragraph 1:

      “The Commissioner may request relevant information.”Ar

Article 7

Add a second sub-paragraph which would read as follows:

Article 9

Add the following words at the end of the first sentence:

      “which may be published if he or she deems it appropriate.”De

Delete paragraph 2.

Article 10, paragraph 1

Replace "three" by "between three and six".

Article 11

Add a second sentence as follows:

      "The candidates should be capable of meeting the demands of a full-time office."

Article 12

Delete the footnote.

Insert the following word before “term of office of six years”:

      “non-renewable”.II

II. Explanatory memorandum by Mr Bindig

1.        Just as the newly elected, full-time European Court of Human Rights takes up its duties, the Committee of Ministers has transmitted the text of the draft terms of reference for a Council of Europe Commissioner for Human Rights to the Assembly for an opinion.

2.        Some people are no doubt asking themselves whether the creation of such a post is timely, perhaps seeing the Commissioner as a potential rival to the Court. Is it, they wonder, a question of the latter not being up to the task? In my view, it is nothing of the kind, quite the reverse in fact.

3.        For while the new full-time Court is expected to bring major procedural improvements, it is important to bear in mind that with the enlargement of the Council of Europe, the number of potential applicants has also grown considerably and is now around 900 million people.

4.        It is more important than ever, therefore, that the European Court of Human Rights should become what it was always meant to be, namely a subsidiary judicial body, intervening only when national legal systems fail.

5.        Instituting a Commissioner for Human Rights is likely to assist this process if he or she succeeds in the — essentially preventive — task which it is proposed to assign him or her.

6.        My first conclusion, therefore, is that it is important to institute a Commissioner for Human Rights and that this should be done without delay, and at least in 1999.

7.        With regard to the draft terms of reference submitted to us, together with the opinion of the Steering Committee for Human Rights (CDDH), I note that all of the Committee’s proposals have been incorporated in this draft. Overall, the proposals made by the CDDH represent improvements, not least because they provide some welcome clarification.

Article 2

- Paragraph 1

8.        The human rights education and awareness-raising task which is assigned to the Commissioner fits in perfectly with the preventive role which I mentioned earlier.

9.        However, in order to give more substance to the terms of reference, it would be a good idea to emphasise a more concrete aspect, that is to say the enforcement of the respect of human rights in member states.

10.        I therefore propose to modify paragraph 1 of Article 2 as follows:

- Paragraph 2

11.        Article 2, paragraph 2 expressly states that the Commissioner shall not deal with individual complaints, which is in keeping with the non-judicial nature of the institution and the need to avoid any interference with the Court. However, to entirely exclude the possibility for the Commissioner to deal with individual cases might appear excessive. Indeed it could prove useful, in exceptional circumstances, to envisage such a possibility. Consequently I propose to foresee such a possibility in exceptional cases, to be left to the discretion of the Commissioner. The last sentence of Article 2, paragraph 2 should thus be replaced by the following text:

12.        Article 2, paragraph 2 contains no reference, however, to intergovernmental matters and the CDDH makes no comment on this subject. How are we to interpret this? The Commissioner, obviously, is not meant to deal with government complaints. Article 8, however, provides that “The Commissioner may directly contact governments of member states of the Council of Europe”, from which it may be inferred that the Commissioner could act as “honest broker” in any inter-state disputes.

13.        Finally, the reference to “other human rights instruments of the Council of Europe” ought to be clarified in an explanatory note. There is no need, of course, to list each and every instrument, but some mention should at least be made of the Framework Convention for the Protection of National Minorities.

Article 3

14.        This article establishes an extremely important principle in affirming that “The Commissioner shall function independently and impartially”. The Assembly which, under Article 10, is responsible for electing the Commissioner, will have to ensure that this requirement is observed. I will come back to this in my comments concerning Article 10.

Article 4

15.        In order to take into account the proposed modification of Article 2 paragraph 1, I suggest inverting the order of sub-paragraphs a and b.

- Paragraph 4.c

16.        Paragraph 4.c reads:

In its opinion, the CDDH gave an interpretation of these “human rights structures”, holding them to include national ombudsmen and similar institutions in the field of human rights, Council of Europe information and documentation centres, NGOs, human rights institutes, legal advice bureaux, etc. The list is non-exhaustive and rightly so. The CDDH proposes that this interpretation be reflected in an explanatory note accompanying the terms of reference or in a footnote.

17.        I propose to second this proposal, which serves to clarify the text without restricting the Commissioner’s freedom of action.

- Paragraph 4.e

18.        In its current wording, the article makes the Commissioner totally dependent on governments’ goodwill.

19.        In order to remedy this, I propose that the words “with their agreement, in their efforts to remedy” be replaced by “in remedying”.

- Paragraph 4.f.

20.        This paragraph originally read: “… address, whenever the Commissioner deems it appropriate […], a report concerning a specific matter to the Committee of Ministers [, the Parliamentary Assembly, or both]” The brackets have been deleted and the words “the Parliamentary Assembly, or both” have been replaced by “or the Parliamentary Assembly and the Committee of Ministers”.

21.        This drafting implies that the Commissioner can address a report to the Assembly only if he or she also addresses it to the Committee of Ministers. There may be occasions, however, when the Commissioner deems it appropriate to address a report to the Assembly, not because he or she wishes to withhold information from the Committee of Ministers, but because the Assembly has a special role to play.

22.        I thus propose to word this sub-paragraph as follows:

Article 6

23.        The Commissioner should not have a passive role and should not merely receive information, but should also be able to request it.

24.        I therefore propose that the following sentence be added at the end of paragraph 1:

“The Commissioner may request relevant information.”

25.        Among the Commissioner's sources of information, the national parliaments seem to have been forgotten. I therefore propose to add the words "national parliaments", in the second sentence of paragraph 1, after the word "governments".

26.        The footnote proposed by the Turkish delegation, furthermore, strikes me as being incompatible with Article 3 of the terms of reference. It is for the Commissioner alone to decide which individuals or organisations he or she shall communicate with. To leave the footnote as proposed by the Turkish delegation would effectively be to cast doubt on the qualities required of the Commissioner in Articles 3, 10 and 11.

27.        I therefore propose that this footnote be deleted.

Article 7

28.        The Commissioner should benefit from the facilities provided for in the General Agreement on Privileges and Immunities of the Council of Europe and the protocols to it.

29.        I therefore propose that a new sub-paragraph 7.2 be added which would mirror the wording of Article 51 of the European Convention on Human Rights and which would read as follows:

Article 9

30.        The Commissioner must have the power to decide whether his or her recommendations, opinions and reports should be published or not.

31.        I therefore propose that paragraph 2 of this article be deleted and that the following words be added at the end of the first sentence: “which may be published if he or she deems it appropriate.”

Article 10, paragraph 1

32.        The list of three candidates which it is proposed to submit to the vote of the Assembly appears to be a little limited in view of the number of member states of the Organisation and of potential candidates. In order to offer a larger choice taking this into account as well as the need for geographical diversity, I suggest increasing to between three and six the number of candidatures that the Committee of Ministers will transmit to the Assembly.

Article 10 and Article 11

33.        Article 10 provides for the Commissioner to be elected by the Parliamentary Assembly on a proposal from the Committee of Ministers. This is a similar procedure to the one used to elect judges to the European Court of Human Rights.

34.        Article 11 lists the qualities which candidates require in order to perform effectively the tasks attached to the post of Commissioner. I fully endorse the standards set, which must ensure that the Commissioner is truly independent and respected. There is, however, no mention of any requirement as to availability.

35.        I propose that a second sentence be added to this article which would read as follows:

      “The candidates should be capable of meeting the demands of a full-time office.” 36

36.        The requirements laid down in Article 11 are more rigorous than those applicable to judges under Article 21 of the European Convention on Human Rights. This article talks of “moral character” and “competence” in the legal field.

37.        Article 11 requires candidates to display “a high moral character” and have “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.”

38.        In its Resolution 1082 (1996) on the procedure for examining candidatures for the election of judges to the European Court of Human Rights, the Parliamentary Assembly devised a model curriculum vitae to be sent to candidates and undertook to call upon candidates to attend a personal interview in the form of a hearing organised by an ad hoc sub-committee of the Committee on Legal Affairs and Human Rights.

39.        This procedure was successfully employed for the first time to elect 39 judges (so far, no judge has been elected for Russia because following the death of one of the candidates, Russia has not yet submitted new candidatures).

40.        I propose that the same procedure be used to elect the Commissioner. It would be relatively inexpensive, as a maximum of six candidates would be heard. The hearing could take place in Strasbourg or Paris, to coincide with a meeting of the Committee on Legal Affairs and Human Rights.

Article 12

41.        The draft terms of reference provide that “The Commissioner will be elected for a term of office of six years”.

42.        A footnote refers to the Danish delegation’s proposal, which reads as follows:

43.        As the CDDH pointed out in its opinion, fixing the Commissioner’s term of office is a political decision. The CDDH goes on to say, however, that it is essential to ensure the independence and impartiality of the Commissioner. I can only concur with this view, which leads me to draw the following conclusion: it is better that the Commissioner should not be eligible for re-election.

44.        I therefore propose that this be made clear in Article 12, by inserting the word “non-renewable” before “term of office of six years.”

Article 14

45.        The Assembly must ensure that the Commissioner receives the necessary budgetary means to run his or her Office and that they are not deducted from those of the Court or Directorate of Human Rights.

Conclusions

46.        I wholly agree with the comments made by the CDDH concerning the use of non-sexist language in Council of Europe texts. The draft terms of reference should be amended to take account of this and when it comes to inviting nominations, the invitation should obviously be couched in non-sexist terms.

47.        In short, I believe that the draft terms of reference of the Council of Europe Commissioner for Human Rights are to be welcomed. I recommend that the Committee of Ministers adopt them as swiftly as possible and by the 50th anniversary of the Council of Europe at any rate. This would enable the Commissioner to be elected by the Assembly in time to take up office by the 50th anniversary of the European Convention on Human Rights.

Reporting committee: Committee on Legal Affairs and Human Rights

Budgetary implications for the Assembly: none

Reference to committee: Doc 8196 and Reference No. 2320 of 21 September 1998

Draft opinion adopted by the committee on 8 January 1999 with 18 votes in favour, 4 votes against and 1 abstention

Members of the committee: MM Hagård (Chairperson), MM Schwimmer, Bindig, Jansson (Vice-Chairpersons), Mrs Aguiar, MM Akçali, Arzilli, Bartumeu Cassany, Besostri, Bulic, Clerfayt, Columberg, Contestabile, Demetriou, Mrs Dumont (alternate: M. Le Guen), MM Enright, Eörsi, Forni (alternate: Bordas), Mrs Frimannsdóttir, MM Frunda, Fyodorov, Mrs Gelderblom-Lankhout, Mr Holovaty, Ms Jäätteenmäki, MM Jaskiernia, Jeambrun (alternate: Dreyfus-Schmidt), Jurgens, Mrs Karlsson, MM Kelam, Kelemen, Lord Kirkhill, Mrs Krzyzanowska, MM Loutfi, Magnusson, de Marco, Martins, Marty, McNamara, Micheloyiannis, Moeller, Mozetic, Nastase, Pantelejevs (alternate: Mrs Libane), Pavlov, Mrs Plechatá (alternate: Mr Svoboda), Mrs Pobedinskaya, MM Pollo, Polydoras, Poppe, Rippinger Robles Fraga (alternate: Lopez Henares), Rodeghiero (alternate: Speroni), Simonsen, Solé Tura (alternate: Mrs Calleja), Solonari, Staciokas, Lord Steel, MM Sungur, Symonenko (alternate: Khunov), Tahiri, Vishnyakov, Vyvadil, Weyts, Wittmann, Mrs Wohlwend, N... (alternate: Fico).

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

Secretaries to the committee: Mr Plate, Ms Coin and Ms Kleinsorge

1 See Doc 8196.