Doc. 8196

16 September 1998

Draft terms of reference of the Council of Europe

Commissioner for Human Rights

Request for an opinion

Committee of Ministers

Letter from the Chairman of the Ministers' Deputies to the President of the Assembly dated 11 September 1998

Dear Madam President,

      I have the honour to inform you that, at their 639th meeting (7-9 September 1998), the Ministers' Deputies decided to transmit the text of the draft terms of reference of the proposed Council of Europe Commissioner for Human Rights to the Parliamentary Assembly for an opinion.

      I therefore have the pleasure of including the draft text referred to above together with, for your information, the opinion of the Steering Committee for Human Rights.

      Please accept, Madame President, the assurance of my highest consideration.

      ...

Signed: Dimitri Constas

COUNCIL OF EUROPE COMMISSIONER FOR HUMAN RIGHTS

- DRAFT TERMS OF REFERENCE -

Article 1

There shall be a Council of Europe Commissioner for Human Rights (“the Commissioner”).

Article 2

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 3

The Commissioner shall function independently and impartially.

Article 4

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 make use, wherever possible, of 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.

Article 5

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 61

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 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 a general reporting system for member States.

Article 7

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 the information requested by the Commissioner.

Article 8

The Commissioner may directly contact governments of member States of the Council of Europe.

Article 9

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 10

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 11

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.

Article 122

The Commissioner will be elected for a term of office of six years.

Article 13

An Office of the Commissioner for Human Rights shall be established within the General Secretariat of the Council of Europe.

Article 14

The costs of the Commissioner and the Office of the Commissioner will be borne by the general budget of the Council of Europe.

Opinion of the CDDH on the draft terms of reference concerning the Council of Europe

Commissioner for Human Rights

[opinion adopted by the CDDH during its 44th meeting (8-12 June 1998)]

Introduction

Following the ad hoc terms of reference received from the Committee of Ministers on 29 April 1998, the Steering Committee for Human Rights (CDDH) held an extensive exchange of views on the draft terms of reference for the Council of Europe Commissioner for Human Rights (cf. Document GR-H(98)13 revised 2, dated 27 May 1998), with a view to drafting an opinion on this subject.

Within the framework of its 44th meeting (8-12 June 1998), the CDDH devoted the days of 9 and 11 June 1998 to the examination of this text. This text was presented by Ambassador HACK, Chairman of the informal drafting group of the Rapporteur Group on Human Rights. At the end of the discussion, the CDDH adopted the opinion set out below. It contains a series of observations on the different articles of the draft terms of reference (part A below), as well as certain general comments (part B). However, some general points are taken up in part A in order to facilitate the reading of this document.

The CDDH wishes to stress at the outset the quality of the text received from the Rapporteur Group on Human Rights; in fact the comments made below have led the Committee to suggest only a limited number of changes to the document. Some of the observations in this opinion merely reflect the view which the CDDH has taken on certain proposals made in the course of its discussions; they did not give rise to any drafting proposals of the Committee.

The CDDH would suggest to the Committee of Ministers that this opinion be transmitted for information to the Committee of Wise Persons. In this respect, particular attention is drawn to some of the observations in Section B of the opinion concerning the financial and other operational aspects of the creation of the Office of the Commissioner for Human Rights.

The CDDH would also suggest to the Committee of Ministers to authorise that the draft terms of reference and the present opinion be transmitted to participants at the 6th Round Table with European Ombudsmen which the Council of Europe organises in co-operation with the Ombudsman of Malta (Malta, 7-9 October 1998).

For ease of reference, the text of the draft terms of reference of the Commissioner, incorporating the drafting proposals of the CDDH, has been appended to this opinion. The CDDH stresses that the Appendix serves only to illustrate what consequences these proposals would have, if followed, for the wording of those terms of reference. Except where stated otherwise, references to Articles and paragraphs of the draft terms of reference for the Commissioner are to the draft contained in the above-mentioned document GR-H (98) 13 revised 2 of 27 May 1998, not to the version contained in the Appendix to the present document.

A.       Article-by-Article comments

Article 1

1.       The CDDH proposes to replace the word « créé » by « institué » in the French text. Even if this provision might not appear as such in the final version of the Resolution to be adopted by the Committee of Ministers but be included in the preamble, the verb « instituer » should be used instead of « créer ». The CDDH also proposes to use the term « Commissioner » instead of the acronym « CHR », both in this provision and in the remainder of the text.

Article 2 § 1

2. The CDDH proposes to replace the words « destinée à » by « chargée de » in the French text.

3. The CDDH proposes to replace the text following the word « promote » by : « education in, awareness of and respect for human rights, as embodied in the instruments of the Council of Europe », adding the footnote which is currently placed in Article 4 (a). This proposal rests on the following considerations :

4. The CDDH considers that it is not necessary to specify any further what is meant by « human rights », e.g. by an explicit reference to « civil, political, economic, social and cultural rights ». This was already implied by the general reference to « human rights, as embodied in the instruments of the Council of Europe ». Moreover, any enumeration might give rise to an a contrario interpretation excluding certain instruments.

Article 3

5. No comment.

Article 4 (in general)

6.       The CDDH is of the opinion that the terms of the various provisions of this Article leave sufficient flexibility to the Commissioner; in particular, it considers that it is not advisable to make the list (a. – i.) non-exhaustive, for example by commencing this Article with : « The Commissioner shall, inter alia, … ». Such wording would give rise to an extremely broad competence, going beyond what is currently envisaged in Article 4.

Article 4 (a)

7.       The CDDH proposes, in line with its comment on Article 2 § 1 (see paragraph 3 above), to insert the words « education in and » after the word « promote », and to delete the phrase « ,as embodied in the instruments of the Council of Europe, », it being understood that this expression would be taken up in Article 2 § 1 (see paragraph 3 above).

Article 4 (b)

8.       The CDDH, after considering whether it would be appropriate to make reference, in this provision, to the possible contribution of the Commissioner to the monitoring work undertaken by the Committee of Ministers and the Parliamentary Assembly, is of the view that it is sufficiently clear from Article 4 (e) that there could be a role for Commissioner in this work.

Article 4 (c)

9. The CDDH fully recognises that, for practical reasons (languages, costs, etc.) the Commissioner will normally deal with the public through existing « human rights structures » in the member States. It interprets this expression in a wide sense : it encompasses (but is broader than) the expression used in Article 4 (f) (« national ombudsmen or similar institutions in the field of human rights ») and it covers also the Information and Documentation Centres of the Council of Europe that exist in a number of member States, non-governmental organisations (NGOs), human rights institutes, legal advice bureaux, etc. The CDDH proposes that this understanding be reflected in an explanatory note accompanying the terms of reference or in a footnote which could be inserted in the text of the terms of reference for the Commissioner. As concerns the overlap between the last sentence of Article 4 (c) and Article 4 (f) in fine, see the comment on the latter provision below.

10. Notwithstanding the first comment made in the previous paragraph, the CDDH considers that the Commissioner should not be prevented from having direct contact with the public. The wording of Article 4 (c) leaves the Commissioner sufficient flexibility in this regard.

11. The CDDH proposes the deletion of the expression « well-established » in the second sentence of this provision, since it could give rise to problems of interpretation and considerably hamper the work of the Commissioner.

12. The CDDH considers that it is not necessary to specify in this provision the addressees of « information and advice » (« Governments and the public »), because this could be taken as excluding other authorities (for example: parliaments), which would unnecessarily restrict the important information functions of the Commissioner under this provision. This could be explained in an explanatory note or in a footnote in the text itself.

Article 4 (d)

13. The CDDH makes the following comments as to its understanding of this provision :

14. On the basis of this understanding of this provision, the CDDH has one further drafting suggestion to make : to replace, after the words « human rights», the word « standards » by the terms « as embodied in the instruments ». This would avoid confusion as a result of the word « normes » in the French text and ensure overall coherence of the draft mandate (see the comment in paragraph 3 above). As a consequence, the word « those » before « standards » should be replaced by « these ».

Article 4 (e)

15. Whatever the wording ultimately retained for this provision (ie. whether or not the text between square brackets is included), an overburdening of the Commissioner with requests under this provision should be avoided. However, the CDDH considers that the clause « in the manner the Commissioner deems appropriate » leaves the Commissioner sufficient room for adopting a prudent approach, with due regard to the Commissioner’s workload.

Article 4 (f)

16. The CDDH proposes that this paragraph be moved up and inserted after paragraph (c) because of the link between paragraphs (f) and (c) and as a consequence of the proposal to change the place of Article 4(h) (see below). The CDDH considers that the last part of this provision (« and encourage … ») could be deleted, not because it lacks merit (on the contrary, see Recommendations No. R (85) 13 and No. R (97) 14 of the Committee of Ministers) but simply because it would already be covered under the broader clause in the last sentence of Article 4 (c).

Article 4 (h)

17.       The CDDH considers that this provision would be more appropriately placed after Article 4 (d) in view of the links between these two provisions. In addition, it should be adapted in the light of text to be retained for Article 4(e). The CDDH proposes to place the verb (« address ») at the beginning of this paragraph, in order to bring it into line with the other paragraphs of Article 4.

Article 5

18.       The CDDH, having considered whether there might be a certain contradiction between Article 5 and Article 3, expresses the opinion that Article 5 requires that the Commissioner should not ignore the views expressed by the Committee of Ministers or the Parliamentary Assembly. On the other hand, this provision in no way obliges the Commissioner to follow or subscribe to those views. A different reading would contradict Article 3.

Article 6

19.       The CDDH proposes that the word « activities » in the first sentence be replaced by « functions » as the latter term appears to express more precisely what is meant here.

20.       The CDDH is of the opinion that, as far as information submitted by individuals is concerned, there is no contradiction between the second sentence of this provision and the last sentence of Article 2 § 2 (« The Commissioner shall not take up individual complaints »). For example, information submitted by individuals might well relate or point to the existence of a general situation or problem.

21. The CDDH proposes to replace in the second sentence the words « her or him » by « the Commissioner » and to insert the words « or similar institutions in the field of human rights » immediately after the word « ombudsmen » (cf. the wording of Article 4 (g)).

22. The CDDH takes note of the proposal made by the Turkish delegation, as reflected in the footnote to this provision. It does not express a view on the question of whether this restriction should be included in the text, since it is essentially of a political nature.

Article 7

23.       The CDDH proposes the following wording for the first sentence in order to express more clearly the specificity of this provision vis-à-vis Article 3 : « Member States will facilitate the independent and effective performance by the Commissioner of his or her functions ».

Article 8

24.       No comment.

Article 9

25.       The CDDH draws attention to the fact that Article 9 § 2 in its current wording also applies to annual reports addressed to the Committee of Ministers under Article 4 (g). The CDDH nevertheless assumes that the Commissioner’s annual reports will always be public.

26. The CDDH stresses the importance of allowing, as is the case in the current draft, the Commissioner the freedom to make public recommendations, opinions or reports other than those addressed to the Committee of Ministers. For the CDDH, it is self-evident that the Commissioner’s recommendations, opinions or reports will not be legally binding.

27.       The CDDH proposes to improve the text by replacing, at the end of paragraph 2, the words « the Committee » by « it ».

Article 10

28.       The CDDH proposes to simplify this provision by deleting paragraph 3 and inserting in paragraph 1 the number of candidates on the list after the words « list of ». It proposes that this number be fixed at three.

Article 11

29.       The CDDH considers it important to stress that candidates should also possess recognised expertise in the field of human rights. It proposes to delete the words « human rights and », and to insert, after the word « with » the following phrase : « recognised expertise in the field of human rights and ».

30. The CDDH also believes that candidates should be available to perform the functions attached to this post effectively and efficiently.

Article 12

31. The CDDH takes the view that fixing the term of office is a political decision. That being said, three different solutions could be envisaged :

32.       The CDDH believes that it is essential to ensure the independence and the impartiality of the Commissioner and that this is a factor which should be borne in mind here.

Article 13

33.       The CDDH proposes to replace the word « sera » by « est » in the French text.

Article 14

34.       No specific comment.

B.       General comments

35.       The CDDH stresses the need to keep the Commissioner clearly separate from other human rights organs and institutions of the Council of Europe and to avoid duplication. Of course, this does not exclude informal contacts between the Commissioner and those organs, which could certainly be useful.

36.       As concerns budgetary matters, the CDDH expresses the unanimous view that the creation of the Office of the Commissioner should go hand in hand with an overall reinforcement of the resources available for the Council of Europe’s work in the human rights field. The creation of this office should certainly not, directly or indirectly, result in a decrease of the resources available for the work of the Directorate of Human Rights; nor should it compromise the fulfilment of the Directorate’s future needs.

37.       The CDDH draws attention to the need to clarify at some stage, the relations between the Commissioner, his or her office and the Directorate of Human Rights (many activities of the Directorate are similar to those envisaged for the Commissioner, such as human rights information and awareness, assistance and co-operation programmes in the field of human rights). It is important to avoid competition or rivalry between the Commissioner and the Directorate. On the contrary, the necessary synergies should be mobilised to ensure that there is mutual reinforcement between the work of the two.

38.       The CDDH is of the opinion that the Office of the Commissioner should be relatively small, but effective and flexible.

39.       The CDDH considers that it might be very useful to elaborate an explanatory note accompanying the terms of reference.

40.       The CDDH draws attention to the fact that the French text of the draft terms of reference submitted to it does not correspond to the official policy of the Committee of Ministers on the use of non-sexist language in Council of Europe texts. The CDDH suggests that this question be looked into.

1        The Turkish Delegation proposes that this Article should specify that the Commissioner will not communicate with or accept information from any person or organisation which practises or publicly condones terrorism or violence.

2        The Danish Delegation proposed the following text: "The CHR will be elected for a term of office of three years, which may be renewed. The Committee of Ministers may review the terms of reference of the CHR after three years dating from the CHR's taking up office."