26th Conference of European Ministers of Justice, 7-8 April 2005, Helsinki (Finland)

(To be checked against delivered speech)

Speech by Serhiy Holovaty, Chairperson of the PACE’s Committee on Legal Affairs

Helsinki, 7 April 2005

Dear Mrs President of the Republic of Finland,
Mrs Deputy Secretary General,
Your Excellencies,
Ladies and Gentlemen,

I would like first of all to thank you for inviting me to participate in this Conference and to address you this morning on behalf of the Parliamentary Assembly of the Council of Europe. Before sharing with you some reflections on the subjects of today’s conference, let me first express my sincere thanks to the Finnish government for its kind hospitality. It is also a privilege for me to wholeheartedly greet the President of Finland, Tarja Halonen, our former colleague who has left her mark on the Assembly’s work and deserves special praise in this regard.

Ladies and Gentlemen,

Looking over your agenda there are two issues of particularly topical interest to the Parliamentary Assembly in the light of its current work. Firstly, the proposal to draw up a European prisons charter. It is an Assembly initiative, based upon a report on the situation of European prisons and pre-trial detention centres which the Committee on Legal Affairs and Human Rights, of which I am Chairman, issued just one year ago, in April 2004. Secondly, the issue of the social goals of the criminal justice system, which, as I’m pleased to announce, will be addressed by the Assembly´s Committee on Social, Health and Family Affairs, currently preparing a report on social reintegration of prisoners. In this respect, I would like to pay tribute to the excellent introductory report presented by the Minister of Justice of Finland. You may be sure, of course, that the discussions and the results of the Conference on these two key items will be closely examined by the Parliamentary Assembly committees concerned.

Allow me first to present the Parliamentary Assembly’s position as regards the proposal for a European Prisons Charter. I would feel disappointed indeed if this issue were to be put on the back burner.

The situation in the prisons of a number of our Member States is really worrying, not to say highly critical. Living conditions in many prisons and pre-trial detention centres are totally incompatible with respect for human dignity: overcrowding, illness, lack of health care, malnutrition and deplorable sanitary conditions are the common lot of hundreds of thousands of prisoners throughout Europe.

Reacting to this situation, the Assembly adopted in April 2004 Recommendation 1656 in which it urges the Committee of Ministers firstly to complete speedily revision of Recommendation No. R (87) 3 on the European Prison Rules, and secondly to draw up a European prisons charter.

The question is whether the existing Council of Europe instruments provide satisfactory solutions. The European Prison Rules are a very comprehensive set of recommendations. Unfortunately these recommendations have no binding effect on the member states. The situation in the prisons of many European countries clearly shows that the member states have failed to apply the standards and principles set forth therein.

It is therefore essential to take things further and to study all proposals for strengthening the Council of Europe’s standard-setting instruments in this area. There is obviously a need to draw up an ambitious, comprehensive, detailed and – what is most important - binding instrument intended to secure respect for the rights and dignity of persons deprived of their liberty, applying to all those subject to the criminal justice system, from the moment of their arrest onwards, during police custody, pre- and post-trial detention and beyond, after release from prison, and dealing with the social rehabilitation of prisoners. This is the purpose of a European prisons charter.

We cannot afford to disregard human rights in this area. This Conference should not forget this key issue and should give a clear signal in this direction. Only fully binding standards and common criteria for our member states, established under a convention, would bring about significant improvement.

However, reiterating the Assembly’s proposal to draw up a new convention brings me to the delicate question of the future of conventions within our Organisation: an issue which has recently come to the forefront.

As you may know, in the course of 2004-2005 the Parliamentary Assembly was invited to give its opinion on three draft conventions – namely the draft Council of Europe convention on action against trafficking in human beings, the draft convention on laundering, the financing of terrorism, search, seizure and confiscation of the proceeds from crime and the draft convention on the prevention of terrorism.

As regards these three core instruments to be opened for signature at the Council of Europe Third Summit of Heads of State and Government of the Council of Europe in May 2005, the Assembly voiced serious concern when it gave its opinions thereon, focusing in particular on the need to strengthen the binding nature of the draft conventions’ provisions. On 18 March 2005, the Standing Committee of the Parliamentary Assembly alarmed by the position taken by the European Commission on behalf of 22 member Sates of the European Community on the draft convention on the trafficking in human being, decided to raise the question regarding the competences and procedures of Council of Europe treaty-making.

The position of the European Commission is seen by many as potentially undermining the Council of Europe´s acquis. Here I refer, in particular, to the so-called “disconnection clauses”, which, if applied, could result in these conventions not being applicable to the European Community’s “constitutional context”. If the Council of Europe does not pay sufficient attention to the question, it may then in the near future permit the EU member states to apply – potentially – lower standards than those negotiated within the Council of Europe. Thereby introducing different standards for different groups of European countries. A line is drawn between EU member states and those not members of the EU. One group of states may in the future not be subject to the same obligations as the other group. This would be the end of effective treaty-making in the Council of Europe. This would be the beginning of double-standards setting within the common legal area in Europe. It is our deep conviction in the Assembly that for the sake of the greater and united Europe, this must not happen.

Any disconnection clause, if deemed appropriate must be understood clearly to mean that no parallel system of protection can be allowed which is less favourable to that negotiated under the auspices of the Council of Europe.

Our task, according to the Statute of the Council of Europe, is to defend and promote three core values: human rights, democracy and the rule of law, drawing the now 46 member States closer together in the process.

As an initiator of ideas, a standards watchdog, and Europe’s human rights conscience, it is the duty of the Parliamentary Assembly to ensure that this ambitious goal, which is the strength and the raison d’être of our Organisation, shall not be undermined or abandoned.

Today it is my duty as representative of the Assembly to sound the alarm. The Council of Europe has been set up to – I quote the Statute - “achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage”.

If future conventions are to ensure the harmonisation of national measures and improve co-operation between Council of Europe member states, any provision enabling the European Union member states to waive provisions of these conventions must be seem as being contrary to the statutory purpose of the Council of Europe.

The Parliamentary Assembly has been at the origin of the Council of Europe’s best-known and most important achievements in the field of treaty-making. It is the Assembly that continues to give impulse to the drawing up of new conventions and to harmonisation of European law and practices in Member States. The Council of Europe must continue to provide for new key binding legal instruments, such as a European prisons charter.

I count on the Ministers of Justice to support the Parliamentary Assembly in its initiative and in all its efforts to provide for a new binding instrument in the form of a European prisons Charter. The Assembly also counts on you, the Ministers of Justice of the 46 Members states of the Council of Europe, and the Ministers of Justice of the “25”, to ensure that all parties to the Council of Europe conventions do not allow lowering standards of our acquis.

To put it in a more simple way, Ladies and Gentlemen, let’s try to answer three simple questions:

Are we, in the European Family, intended to draw a line between the countries?

Is our aim to lower the achieved high standards in human rights protection area?

Do we pursue the goal to have double standards in this area?

We, in the Parliamentary Assembly, are convinced that most of you present here, if not all of you, will say NO in response. Having this threefold NO in our hands and in our minds, aren’t we in a position to exert an optimism in regard the common policy?

To conclude, Ladies and Gentlemen, allow me to express my best wishes for a productive conference, hoping that it will soon lead to tangible and fruitful results.

Thank you for your attention.