Back 53rd meeting of the Committee of Legal Advisers on Public International Law (CAHDI)

Strasbourg , 

Speaking points


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Madame Chair,

Ladies and Gentlemen,


  • It is my great pleasure to welcome you at this beautiful spring morning once again here in the Palais of the Council of Europe – this time for the 53rd meeting of the CAHDI.
  • It is a pleasure for me to welcome Päivi Kaukoranta in the chair and Petr Valek as Vice-Chair.
  • Important developments within the Council of Europe have again taken place since we last met in Brussels in September 2016. Allow me to briefly present you a selection of issues which I imagine to be of interest for the CAHDI.
  • I would like to focus on two issues, the European Convention on Human Rights and developments regarding other treaties.


European Convention on Human Rights


  • As regards declarations of derogation under Article 15 ECHR, I would like to point out that, since your last meeting, France, Ukraine and Turkey have extended the declarations of state of emergency in their respective countries allowing them to derogate, in a temporary, limited and supervised manner, from their obligation to secure rights and freedoms under the Convention.
  • The Secretary General and other representatives of the Council of Europe have repeatedly reminded member states that the ECHR continues to apply despite the declaration of a state of emergency. Measures derogating from obligations under the Convention are only allowed to the extent strictly required by the exigencies of the situation.
  • With regard to Turkey, the first cases concerning measures taken under the state of emergency have reached the ECtHR. So far, the applications in three cases, Mercan v. Turkey (application no. 56511/16, decision of 17 November 2016), Zihni v. Turkey (application no. 59061/16, decision of 8 December 2016) and Çatal v. Turkey (application no. 2873/17, decision of 10 March 2017) have been declared inadmissible for lack of exhaustion of local remedies and the Court did not examine the complaints on the merits. There are already approximately 11,000 applications pending before the Court involving cases that emanate to facts in the aftermath of the failed coup attempt of July 2016.
  • A concrete result of our cooperation with the Turkish authorities is the recent setting up of the national commission which will examine the cases for persons who have been dismissed, organisations that have been closed, schools and news outlets that have been closed, private property that has been confiscated. On the occasion of the visit of Mr Bekir Bozdağ, Minister of Justice of Turkey, in Strasbourg on 1 March 2017, the Secretary General of the Council of Europe welcomed the setting up of this commission as a positive sign for allowing judicial oversight of decisions relating to the state of emergency provided that the commission will function independently and on the basis of the ECHR.
  • Other Council of Europe organs and institutions have already scrutinised measures adopted by Turkey during the state of emergency. I would like to refer you in particular to Venice Commission’s “Opinion of 9-10 December 2016 on Emergency Decree Laws N°s 667-676 following the failed coup of 15 July 2016” (CDL-AD(2016)037) and “Opinion of 13 March 2017 on the measures provided in the recent emergency decree laws with respect to freedom of the media in Turkey (CDL-AD(2017)007). The Venice Commission acknowledges the right of a democratically elected government to defend itself including by resorting to extraordinary measures. But the Commission also emphasises that measures such as mass liquidations of media outlets on the basis of the emergency decree laws, without individualised decisions, and without the possibility of timely judicial review are unacceptable under international human rights law.
  • With regard to the supervision of the execution of ECHR judgments by the Committee of Ministers, I would like to mention the cases of Ilgar Mammadov and Yukos because they transcend the individual cases of the applicants and raise issues of fundamental importance for the credibility of the Convention system.
  • The situation concerning the persistent non-execution of the ECtHR’s judgment in the Ilgar Mammadov case (application no. 15172/13) remains unchanged so far. The applicant is still detained despite the fact that the ECtHR found - in a binding judgment almost three years ago (judgment of 22 May 2014) - that Mr. Mammadov’s deprivation of liberty not only violated Article 5 ECHR, but also amounted to a violation of Article 18 ECHR prohibiting the restriction of a Convention right for any reason other than the ones prescribed under the Convention.
  • A Secretariat mission under the Secretary General’s Article 52 ECHR inquiry has eventually taken place in January 2017 and Azerbaijan submitted an action plan to the Committee of Ministers. However, as the Committee of Ministers underlined in December 2016, the continuing arbitrary detention of Ilgar Mammadov constitutes a flagrant breach of the obligations under Article 46 (1) ECHR and may justify starting proceedings under article 46 (4) ECHR.
  • The execution of the judgment in the case of Yukos v. the Russian Federation (application no. 14902/04) raises issues regarding the relationship between the Convention and national constitutions.
  • In its Chamber judgment on the merits of 20 September 2011, the Court had found several Convention violations concerning the tax assessment proceedings against Yukos. In the subsequent judgment on just satisfaction, the Court awarded a total of € 1,866,104,634, the highest amount ever awarded by the ECtHR, 21 times higher than in the case of Cyprus v Turkey.
  • In a recent judgment the Russian Constitutional Court  found that it impossible to execute the ECHR judgment as regards the payment by of compensation to shareholders of the Yukos company. At the same time, the Constitutional Court underlined the necessity to look for a lawful and legitimate compromise given “the fundamental importance of the European system of protection of human rights and freedoms, part of which is constituted by European Court of Human Rights judgments.”
  • Supervising the execution of the ECHR judgment, the Committee of Ministers adopted a decision by consensus on 10 March. The Committee of Ministers expressed serious concern at the non-implementation of the judgment in question by the Russian Federation, firmly reiterated the unconditional obligation under Article 46 ECHR to abide by the judgments of the ECtHR and urged the authorities to inform the Committee of Ministers about all relevant steps towards an appropriate solution. For the first time, this decision contains a footnote which refers to the findings of the Constitutional Court.
  • Finally, I would like to draw your attention to the new HUDOC-database of the Department for the Execution of Judgments which is now functional. The same tried and tested system that has been in place for the judgments of the Court for decades can now also be used to search documents at the execution stage.


Developments regarding other treaties

  • Le 30 janvier 2017, la Convention européenne sur la coproduction cinématographique (révisée) (STE n° 220) a été ouverte à la signature. La Convention révisée apporte une nouvelle souplesse dans la mise en place des coproductions. Elle met également à jour les procédures d’obtention de la reconnaissance d'un film coproduit par les autorités nationales. De plus, en accord avec des modes de travail de plus en plus mondialisés, la Convention révisée est dorénavant ouverte à l’adhésion des pays non-européens. Cela reflète l'ouverture récente du Fonds culturel Eurimages du Conseil de l'Europe à des pays extérieurs à l'Europe. Le 16 mars 2017, le Canada est devenu le premier Etat non européen membre associé de l’Eurimages.
  • Le Comité européen pour les problèmes criminels et de son groupe spécialisé sur les infractions visant des biens culturels (PC-IBC) a préparé un projet de convention sur les infractions visant des biens culturels, qui se substituera à la Convention « Delphi » de 1985. Ce travail est mené en étroite collaboration avec diverses organisations internationales, parmi lesquelles se trouvent UNIDROIT, l’UNESCO, l’ONUDC et l’Union européenne. Après avoir été approuvée par les organes pertinents du Conseil de l’Europe, il est prévu d’adopter la nouvelle convention à la session ministérielle du Comité des Ministres qui se tiendra le 19 mai à Nicosie.
  • Les dispositions pénales figurant dans le projet de convention visent le vol et d’autres formes d’appropriation illégale, excavation et prélèvements illégaux, exportation illégale et importation illégale, acquisition, mise sur le marché, falsification de documents et destruction et dégradation. Cette nouvelle convention définira des mesures préventives de grande ampleur aux niveaux national et international. En outre, elle visera à la mise en place d’une coopération transnationale pour enrayer le commerce de ce qu’il convient d’appeler les « antiquités du sang ».
  • The negotiations regarding the revision of Data Protection Convention 108 were finalised at expert level in June 2016. The draft protocol has now been discussed for almost a year in the competent rapporteur group GR-J but we still have no solutions for the outstanding issues (EU voting rights; national security exceptions; transborder data flows; entry into force).
  • As the Chair of GR-J, the Slovenian ambassador Eva Tomic recalled at last week’s meeting, a lot is at stake for the Council of Europe and its member states. The treaty’s object and purpose is highly relevant in our modern world where data is constantly being exchanged across borders. Convention 108 remains the best treaty-based possibility for the adoption of truly international data protection standards. The Convention currently counts 50 parties. Its scope of application extends rapidly beyond Europe and covers already roughly half of the countries worldwide which possess a comprehensive data protection legislation. Most recently Senegal has become a party and only yesterday Burkina Faso was invited to accede.
  • It is essential that a treaty of this significance, on a subject falling to a large extent under EU competence, and with potentially global reach, can still be successfully negotiated at the Council of Europe. We are setting an important precedent and it is essential to get it right. But we must also get it done. By May 2018, 28 of our member states will apply the new EU data protection regime which is incompatible with the old standards of the original 1981 Convention and its Protocol.
  • Let us not miss this historic opportunity to establish a modernised legal framework on data protection that Privacy Commissioners, the business community and NGOs worldwide have called for. The final outcome can only be a compromise package which may not satisfy everybody on all issues.
  • What is required is an effective regime which ensures a free flow of data while protecting fundamental privacy rights of individuals.
  • The Budapest Convention on Cybercrime, which celebrated its 15 years of existence last November, will be supplemented by an Additional Protocol on Electronic Evidence. Draft terms of reference have been sent to the 57 parties and signatories for consideration/decision at the T-CY’s plenary in June.
  • It is an open secret that law enforcement authorities of many states are already engaged in transborder access to data beyond the scope of the Budapest Convention, often on an uncertain legal basis, with obvious risks to the procedural and privacy rights of individuals. I am convinced that only internationally agreed standards can provide legal certainty and predictability to state conduct.
  • Both the Budapest Convention and Convention 108 are examples for treaties that have attracted worldwide interest. The role the Council of Europe plays when it comes to international standard setting was discussed during a meeting in Geneva on 27/28 February last between Secretary General Thorbjørn Jagland and UN Secretary-General António Guterres. Mr Guterres, an old friend of the Council of Europe, declared that the UN will continue to use our standards as a point of reference as it is more and more difficult to agree on standards on a global level.




  • Finally, I would like to highlight that this year marks the 10th anniversary of the Memorandum of Understanding between the European Union and the Council of Europe. The EU is our strategic partner, politically and financially. Cooperation through joint programmes, worth some € 322 Mio. for the period 2007-2016, is one of the expressions of our successful partnership.
  • On 17-18 March, I participated in the conference ‘The Inter-Relationship between the European Convention on Human Rights and European Union Law’ which was organised under the auspices of the Cypriot Chairmanship of the Committee of Ministers. My presentation “Looking for Ariadne’s thread in the opinion 2/13” is available at DLAPIL’s website.




  • This finishes my tour through the highlights of recent developments and activities in the Council of Europe.
  • I wish you a very pleasant and successful meeting. The Secretariat rests at your disposal for all questions and concerns you may have.

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Directorate of
Legal Advice and
Public International Law
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