C Explanatory
memorandum by Mr Cilevičs, rapporteur
1 Introduction
1.1 Procedure to date
1. On 27 May 2011, the Parliamentary
Assembly decided to refer to the Committee on Legal Affairs and Human
Rights, for report, the motion for a resolution on reinforcing the
selection processes for experts of the monitoring mechanisms of
the Council of Europe (
Doc.
12586). At its meeting on 23 June 2011, the committee appointed
me as rapporteur. In order to gain an overview of some practical
aspects of the topic, on 26 April 2012, a hearing was held jointly
with the Committee on Equality and Non-Discrimination, with the
participation of:
- Mr Jenö Kaltenbach,
Chairperson of the European Commission against Racism and Intolerance;
- Mr Trevor Stevens, Executive Secretary of the European
Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (CPT);
- Ms Marieke Sanders, member of the Advisory Committee of
the Framework Convention on National Minorities and of the Committee
of Experts of the European Charter for Regional or Minority Languages.
1.2 Scope of this report
2. The purpose of this report
is to carry out a stocktaking exercise on the selection procedures
for members of the Council of Europe’s human rights monitoring mechanisms
and to explore means to reinforce these procedures in line with
the transparency and quality requirements that must govern them.
3. The preparatory work on this report
Note has demonstrated the multifaceted context
of Council of Europe monitoring activities. A large number of monitoring
mechanisms have been set up under the auspices of the Organisation
with significant disparities, in particular as to the nature and
the extent of their mandate, as well as to the issues covered by
their monitoring, namely human rights, democracy and the rule of
law.
4. For the sake of clarity and coherence, the scope of this report
will be limited to only some of these mechanisms. Having regard
to the fundamental importance of the protection of human rights,
which lies at the heart of the Council of Europe’s mission, this
report will focus on monitoring mechanisms directly involved in this
field. It will cover four of these key monitoring mechanisms: the
European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT), the European Commission
against Racism and Intolerance (ECRI), the European Committee of
Social Rights (ECSR) and the Advisory Committee of the Framework
Convention on National Minorities (ACFC).
5. Hence, certain other important monitoring (and related verification)
mechanisms, such as the Group of Experts of Action against Trafficking
in Human Beings (monitoring the Convention on Action against Trafficking in
Human Beings (CETS No. 197)), the Conference of the Parties under
the Convention on Laundering, Search, Seizure and Confiscation of
the Proceeds from Crime and on the Financing of Terrorism (ETS No. 141);
the Group of States against Corruption (GRECO), the Committee of
Experts on the Evaluation of Anti-Money Laundering Measures and
the Financing of Terrorism (MONEYVAL) and monitoring undertaken
with respect to the European Charter for Regional or Minority Languages
(ETS No. 148), are not dealt with in this report. See, in this connection,
the recently published study by Renate Kicker and Markus Möstl,
Note which contains
a comprehensive overview and analysis of these mechanisms.
6. The above clarification of the scope of the report implies
changing the title accordingly. It was therefore decided to replace
the initial title “Reinforcing the selection processes for experts
of the monitoring mechanisms of the Council of Europe” by “Reinforcing
the selection processes for experts of key Council of Europe human rights
monitoring mechanisms”.
2 Context
2.1 Definition of monitoring
in the global human rights context
7. Although the term “monitoring”
is used extensively by the international community, there is no
single definition of human rights monitoring that distinguishes
it from related terminology such as verification, fact-finding,
assessment and observation of human rights. Frequently the terms
are used inter-changeably.
8. Monitoring is a broad term used to describe a wide range of
activities, including the active collection, verification and use
of information to address human rights problems. It encompasses,
inter alia, gathering information
about incidents, observing events, visiting sites and holding discussions
with government authorities to obtain information and to pursue
remedies and other immediate follow-up.
Note
9. Monitoring is a method of improving the protection of human
rights. The principal objective of human rights monitoring is to
reinforce State responsibility to protect human rights.
NoteNote
10. Various groups or organisations might be involved in forms
of monitoring, including intergovernmental organisations and civil
society actors.
2.2 Monitoring in the context
of the Council of Europe
2.2.1 Definition
11. The term “monitoring” is not
defined, either in the Statute of the Council of Europe of 1949
(ETS No. 1) or in any of the principal legal instruments which have
set up monitoring mechanisms. As understood by the Council of Europe,
monitoring includes verifying member States’ compliance with human
rights standards and addressing policy recommendations to individual
countries.
Note Monitoring mechanisms thereby constitute mechanisms
of warning and censure regarding the situation in specific fields
related to democracy and human rights in Europe. They enable the
Council of Europe to supervise the implementation of its standards,
to discern cases of non-compliance, and to propose solutions or
address recommendations to its member States.
Note
2.2.2 Council of Europe mandate
with respect to monitoring
12. All member States of the Council
of Europe are required to respect their obligations under the Statute, the
European Convention on Human Rights (ETS No. 5) and other conventions
to which they are Parties, as well as to observe a series of principles
and standards which have been elaborated within the Organisation with
regard to democratic pluralism, human rights and the rule of law.
13. In addition to the obligations incumbent on all member States,
a number of States which have become members since 1989 have also
freely entered into specific commitments. The main accession commitments first
undertaken vis-à-vis the Parliamentary Assembly, and then with the
Committee of Ministers, are explicitly referred to in the relevant
opinions adopted by the Assembly and/or in resolutions adopted by
the Committee of Ministers when it invites States to become members
of the Council of Europe.
14. The Council of Europe member States are individually and collectively
responsible for ensuring proper compliance with their commitments.
Compliance with commitments has always been a key principle of the Organisation
and received further political impetus when the Heads of State and
Government of the Council of Europe, gathered in Vienna in 1993
for their 1st Summit, resolved “to ensure full compliance with the commitments
accepted by all member States within the Council”.
Note This commitment has been constantly renewed
by member States on the occasion of each Summit of the Organisation's
Heads of State and Government, first in Strasbourg
NoteNote in 1997 and then in Warsaw
Note in 2005, where they expressly reaffirmed
their “firm support” to monitoring.
2.2.3 Council of Europe monitoring
procedures
15. The setting-up of monitoring
procedures has various origins. In the first place, the Council
of Europe’s statutory organs have established their own monitoring
procedures to reflect their particular statutory responsibilities.
Similarly, certain treaties
Note lay down a procedure or require the establishment
of machinery for monitoring their application and/or fostering closer
co-operation between Parties. Other monitoring bodies were the final
product of reflection initiated when defining a common policy, such
as ECRI. Finally, as part of the Organisation's intergovernmental
activities, steering (or other) committees, composed of experts designated
by member States and answerable to the Committee of Ministers, may
also be required, in their field of competence, to review the application
of conventions and/or Committee of Ministers recommendations, on
the basis of information supplied by their members.
Note
16. A distinction can be drawn between monitoring procedures that
are more general in scope, namely those of the statutory organs
(the Committee of Ministers and the Parliamentary Assembly), and
the specialised monitoring procedures dealing with specific issues
relating to different aspects of human rights, democracy and the
rule of law.
17. As to the first category of monitoring procedures, a brief
overview should be given of the mechanisms set up by the Committee
of Ministers and by the Parliamentary Assembly.
18. Since the adoption of its 1994 Declaration on compliance with
commitments,
Note the Committee of Ministers has developed
a range of procedures for ensuring strict compliance with the undertakings
entered into by each member State.
Note Two
forms of monitoring by the Committee of Ministers are based on the
1994 Declaration: a country specific procedure and a thematic monitoring.
The scope of the latter has been however significantly reduced under
new modalities
NoteNote adopted in 2007 which provide that
thematic monitoring exercises take place only on an ad hoc basis
and on a theme chosen by the Committee of Ministers. In addition
to these two procedures, the Committee of Ministers has set up a
post-accession monitoring mechanism for the member States which
last joined the Organisation. As outlined above, the Committee of
Ministers has also mandated a number of intergovernmental committees
Note to conduct activities
connected to monitoring.
19. This report does not cover the European Court of Human Rights,
although some monitoring procedures do, of course, deal with the
implementation of its judgments. The election of judges to the Court,
by the Parliamentary Assembly, stands apart and is particularly
well developed.
Note
20. The Parliamentary Assembly has established a Committee on
the Honouring of Obligations and Commitments by Member States of
the Council of Europe, known as the “Monitoring Committee”. This committee
is responsible for verifying the fulfilment of obligations assumed
by member States under the terms of the Organisation's Statute,
the European Convention on Human Rights and all other Council of
Europe conventions, as well as the honouring of commitments entered
into by the authorities of member States upon accession to the Council
of Europe. The Monitoring Committee submits regular reports to the
Assembly both on the general progress of monitoring procedures (progress
reports) and on each country being monitored or subject to a post-monitoring
dialogue (country reports).
21. It should be highlighted that the approach taken by the Committee
of Ministers and the Parliamentary Assembly in their respective
monitoring differs fundamentally. Unlike the Parliamentary Assembly’s
work (reports, parliamentary debate and adoption of texts by majority
votes), which is eventually made public, the Committee of Ministers’
procedures are confidential, based principally on persuasion, peer
pressure and diplomatic negotiation.
3 Key Council of Europe specialised
monitoring mechanisms
3.1 Issues at stake
22. Specialised monitoring mechanisms are complementary to the monitoring
mechanisms of a general and political
nature put into place principally, but not exclusively, by the Parliamentary
Assembly and the Committee of Ministers.
23. The key monitoring mechanisms studied in this report are expert
bodies whose powers comprise conducting country-by-country fact-finding
and assessment, notably through country visits and examination of periodic
reports by States Parties, as well as making policy recommendations
to improve compliance with relevant Council of Europe standards.
They issue decisions and reports, usually forwarded to the Committee of
Ministers for information and, in principle, made public, with the
exception of the CPT reports on its visits, which are published
at the request of the country concerned. While the CPT, the ESCR
and the ACFC have been set up by treaties adopted within the framework
of the Council of Europe and signed and ratified by States Parties,
ECRI is based on a resolution of the Committee of Ministers.
24. These mechanisms are intended to assist member States in upholding
the Organisation’s principles and standards and to prevent human
rights violations. The qualification, the experience and independence
of their members is crucial in discharging their mandates. To maintain
the efficiency and authority of these mechanisms, the procedures
for the selection of their members should include safeguards to
ensure the competence and independence of the experts.
3.2 Existing selection procedures
25. As highlighted in the tables
in the appendices, the current system is characterised by a great
disparity in selection procedures for members of the key human rights
monitoring mechanisms. Such a disparity may be observed in the number
of experts and mandate features, and, more significantly, in the
eligibility criteria and modalities of the selection process.
26. The length of service for members
of the Council of Europe’s key specialised monitoring mechanisms
is usually limited to a period of time comprised between eight and
twelve years, with the exception of ECRI, which allows indefinite
renewals.
27. The lack of any limitation raises the issue of the independence
of the experts as well as of the need to ensure the renewal, diversity
and complementarity of expertise in the membership of monitoring
mechanisms (as is the case of the CPT where a balance is sought
between “lawyers” – prison experts, criminologists, etc. – and “medical
doctors” – psychologists, experts in hygiene, etc.). These concerns
are reflected in the recent discussions held in the context of the
United Nations Treaty Body Strengthening Process.
NoteNote They are also in line with the stipulations
of the most recent treaties allowing a maximum of two terms.
Note
3.2.1 Eligibility criteria
3.2.1.1 Individual requirements
28. Impartiality and independence
as well as recognised expertise in the areas related to the mandate
of the mechanisms should be considered as the most important criteria
for the selection of experts. “Moral values” or similarly-phrased
criteria should be interpreted narrowly, as requiring the absence
of a criminal record or of professional disqualifications.
29. Whereas candidates seeking election to the European Court
of Human Rights are required to possess an active knowledge of one
of the official languages of the Council of Europe and a passive
knowledge of the other, no similar language requirements have been
introduced in the selection process of the specialised monitoring
mechanisms, with the notable exception of the CPT (to a certain
extent). This shortcoming should be remedied, bearing in mind that
the linguistic ability of the experts directly affects the practical
work of the mechanism and the quality and credibility of its results.
Note
3.2.1.2 Objective requirements
30. It is commonly accepted that
particular attention should also be paid to objective criteria when considering
candidates for human rights monitoring mechanisms.
Note Such requirements, which may include professional
background, gender and age, aim to ensure a balanced composition
of the body and therefore to reinforce the effectiveness of its
work.
31. Although it appears from the hearing held in the context of
this report that monitoring bodies generally agree on the importance
of such requirements – in particular with respect to professional
background –, the selection process for CPT members is the only
one with formal criteria in that regard.
32. However, even having a position that is not formally subordinated
to a government may not necessarily safeguard the actual independence
of a member of a monitoring body. In reality, an expert’s independence
can be “affected” by a government in other ways. Note can be taken,
for example, of the case of a member of the Committee of Experts
of the European Charter for Regional or Minority Languages who,
in March 2012, had been denied permission to attend the meeting
of the Committee, and after having actually attended that meeting,
was dismissed from a high university position. Discussing the incident,
the Committee admitted that there might be valid reasons for a member
not to attend a meeting, for example pressing duties of his or her ordinary
work. However, valid reasons should be given in each instance. The
rapporteur is of the view that in this case diligent implementation
of commitments undertaken by the State concerned – upon ratification
of the relevant international instrument – is at stake, rather than
infringement of the independence of an expert. Nevertheless, this
incident may add an essential dimension to the interpretation of
the concept of independence of experts and their capability to fulfil
their duties.
3.2.1.3 Requirements related to
the performance of duties
33. Shortcomings in independence
and impartiality may affect the credibility of the monitoring body
and its effectiveness. These eligibility criteria have been clarified
by the Parliamentary Assembly
Note for
CPT candidates, who should not be “persons who are, at central government
level, in charge of the definition of national policies in the sector
concerned and who could be held politically responsible for any
shortcomings”. In the absence of any similar definition in the Statute
or in relevant texts applying to the ECRI, the ESCR and the ACFC,
these criteria may however raise some issues when applied to the
selection process of the latter mechanisms. If the independence
of candidates shall not be put into question by the mere fact that
they are civil servants or otherwise employed in the public sector,
such a situation may be in contradiction with the European Court
of Human Rights’ standards regarding membership of tribunals adjudicating
legal disputes
Note as well
as with Addis Ababa Guidelines.
Note
3.2.2 Selection procedures
34. The table in Appendix 3 shows
that the current situation is characterised by a great disparity
in selection procedures. In the ECRI selection process, the power
of appointment lies with the national governments, while the Council
of Europe is given a power of control and rectification via the
Committee of Ministers. In the three other selection processes (CPT,
ESCR, ACFC), the power of appointment lies with the Committee of
Ministers. It should however be outlined that the CPT procedure
provides for a much more elaborate system of checks and balances
at both national and international selection level. First, it requires
an open and transparent national selection process, which includes,
in principle, public calls for candidatures, the involvement of relevant
State and non-governmental bodies, the use of a common format for
curriculum vitae and, ideally, interviews of shortlisted candidates.
Then, it involves both statutory organs of the Organisation – the Parliamentary
Assembly and the Committee of Ministers – as well as the bureau
of the monitoring mechanism which, in practice, is informally consulted.
This selection process is in part inspired by the nomination of candidates
and election of judges to the European Court of Human Rights, which
aim to reflect the principles of democratic procedure, transparency
and non-discrimination.
35. The unique selection procedure has proved to be efficient.
Statistical data on the impact of the recommendations made by the
Sub-Committee on Human Rights of the Committee on Legal Affairs
and Human Rights show that of the 120 recommendations drawn up by
the sub-committee since 2002, 100 were followed by the Committee
of Ministers. Also, in the same period of time, the sub-committee
made 16 proposals for lists to be rejected, all of which were followed
by both the plenary Legal Affairs Committee and the Bureau of the
Assembly. In seven more instances, additional information was provided
after a postponement and one postponement led to the voluntary replacement
of a list by a new and more satisfactory one.
4 Conclusion
and proposals
36. The underlying objective of
the monitoring mechanisms is to ensure effective implementation
of the various international human rights standards set by the Council
of Europe. Expert bodies, through, among others, peer review and
recommendations, assist member States in respecting their treaty
obligations and/or implementing recommendations made by the monitoring
mechanisms. The results of such monitoring should inform domestic
policy makers and trigger appropriate adjustment and remedial measures.
The quality, integrity, and independence of experts are crucial
for these mechanisms to function as they were meant to when they
were established.
37. However, the above developments show that there is currently
a great disparity among selection processes of key Council of Europe
monitoring mechanisms. Some of the procedures may be perceived as lacking
transparency and/or objective criteria for ensuring the necessary
quality, integrity and independence of experts. This can have adverse
effects on the functioning of the monitoring mechanisms. In order
to ensure the efficiency and credibility of monitoring mechanisms,
it is expedient to reinforce further the procedures of selection
of their members. Another, related matter which merits further reflection
is the appropriateness or otherwise of governments nominating three
candidates for each body, so as to ensure a real choice of the most appropriate
candidate (as is done in respect of the CPT).
38. I therefore suggest that the following general principles
apply, in the light of the CPT selection procedure:
- As regards the length of service
for members of monitoring mechanisms, indefinite renewals should
be avoided, bearing in mind that the possibility of one or two renewals
should enable a balance to be found between a change in membership
and preserving the institutional memory of the mechanism;
- Eligibility criteria should include individual requirements,
notably with respect to recognised expertise in relevant areas and
language skills, as well as objective requirements, such as availability
to carry out the required functions;
- In order to fulfil the independence and impartiality criteria,
nomination or election of experts should be avoided while they are
holding positions in the government or any other positions that
might lead to a real or perceived conflict of interest situation;
- At the national level, open and transparent selection
processes should be established, including public calls for candidatures,
involvement of relevant State and non-governmental bodies – among
which national parliaments – use of a model curriculum vitae, considerations
of gender balance, where appropriate, and interviews of shortlisted
candidates;
- At the Council of Europe level, both statutory organs
of the Organisation, namely the Committee of Ministers and the Parliamentary
Assembly, should be involved in selection procedures. The role of
the Parliamentary Assembly is crucial in this respect and its relevant
committees should be involved in the verification process;Note
- Furthermore, the monitoring body itself should be informally
consulted (for example through its bureau).
39. Finally, I wish to reconfirm the Assembly’s recommendations
concerning the CPT based on a report by Mr Jean-Charles Gardetto.
Note I consider that the Assembly should
have the possibility to reject lists of candidates who do not meet
the criteria of competence, integrity, independence and professionalism.
An enhanced role for the Assembly would increase the democratic
legitimacy of the selection procedure and thereby the authority
of the monitoring bodies.
