DIRECTORATE OF DEMOCRATIC INSTITUTIONS
Project “Forum for the Future of Democracy”
Strasbourg, 18 October 2010
Forum for the Future of Democracy 2010
Prepared by the
The Committee of Ministers, the Parliamentary Assembly, the Congress of Local and Regional Authorities and other bodies of the Council of Europe have created a broad acquis on the issues of democracy that stands to demonstrate the Council of Europe’s commitment to the fundamental principles of democracy. To a large extent, this acquis is reflected in legally binding documents, such as treaties, conventions or charters.
However, not all of what the Council of Europe believes should form the framework in which democracy is implemented in its member states, has been translated into such texts. This document offers an analysis of the Council of Europe’s achievements and perspectives in developing democracy, by assessing how far-reaching the legal consequences of its acquis are. In other words, the question is asked in how far the Council of Europe has gone in implementing its core values and principles on the subject of democracy.
The analysis in this paper builds upon the classification of the Council of Europe’s acquis in ‘Developing Democracy in Europe - An Analytical Summary of the Council of Europe’s acquis’1. In their publication the authors point out that while the Council of Europe “offers a complex array of documents which contribute to its acquis in the field democratic institutions”, some of them are further-reaching than others.
In particular, while Council of Europe conventions, treaties and charters have full legal status and are legally binding on such members that have ratified or fully implemented them, the recommendations, resolutions, opinions and orders of the Committee of Ministers, the Parliamentary Assembly and the Congress of Local and Regional Authorities, as well as the reports of other Council of Europe bodies such as GRECO or the Venice Commission “are more discursive in their nature and have only an informal influence on democratic practices.”2
In assessing the Council of Europe’s acquis, then, there are two elements: first, to establish its set of principles and values on the topic of democracy. This can be done by summarising the key points in relevant documents stemming from all of the Organisation’s bodies, i.e. defining a broad definition of the acquis. Second, to distill those documents which have binding legal consequences for member states by drawing on relevant Council of Europe conventions, treaties and charters.
The Council of Europe’s understanding of democracy
The Council of Europe’s understanding of democracy is one of adherence to a set of clear democratic principles, including the protection of human rights, promoting participatory democracy, fair representation and regular, free and fair elections. The following is a brief summary of the key principles the Council promotes, and the type of acquis that supports or enforces them.
Human rights form the foundation of the Council of Europe’s understanding of democracy. The European Convention on Human Rights and Fundamental Freedoms and its Protocols (in particular the First Protocol) set out a number of fundamental rights and freedoms. The most relevant to the issues under discussion in this document are: the right to freedom of thought, conscience and religion; the right to freedom of expression, the right to freedom of assembly and association and the right to free elections.3
The European Court of Human Rights, its judiciary powers and its case history illustrate not only the Council of Europe’s commitment to human rights, but also its achievements in securing and continuously working towards the protection of these fundamental rights and freedoms. The Organisation’s commitment to the principles enshrined in these texts is clear; indeed, they reflect the requirements made of member states in the Council of Europe’s Statute4. They also reflect the concerns of a vast number of court cases and legal documents. The Convention on the Participation of Foreigners in Public Life at the Local Level5 seeks to extend these rights to foreign nationals.
The Council of Europe is committed to “representative democracy as the defining principle from which all other democratic characteristics follow.”6 That such power rests to a large extent with elected representatives based within fairly elected parliaments, is a key concern of the Council of Europe. This principle has been stated and reaffirmed on numerous occasions, such as in the Parliamentary Assembly’s 1983 resolution on the Principles of Democracy or the 1992 Resolution on Citizens’ Participation in Politics.7 Similarly, parliaments should function as forums for deliberation in which “the harmonisation of mostly contradictory and conflicting needs of citizens or groups of citizens, dictated by the general interest, can be achieved.”8
Within the framework of parliamentary democracy, the Council of Europe is committed to free and secret elections to Parliament, universal suffrage, separation of power in the institutions of government, a plurality of political parties and representatives, and the rule of law.
It is implicitly understood that free and secret elections are a necessary, but not a sufficient, characteristic of democracy. How far does the Council of Europe go in committing its members to additional principles of parliamentary democracy that form a part of its core values? Whilst it has issued recommendations and resolutions, guidelines and opinions on this topic, the Council of Europe’s bodies have not gone as far as making its member states agree on a convention on the broad principles of democracy.
Elections and representation
A key concern of the Council of Europe is that elections must be carried out not only on a regular basis, but also that they follow a code of conduct that ensures that they display universal, equal, free, secret and direct suffrage, prohibit favouring certain election candidates or political parties, and produce a plurality of political parties.
In its effort to ensure that these principles are met by its member states, the Organisation has advanced a Code of good practice in electoral matters through the Venice Commission9 in response to a request from the Parliamentary Assembly. Here, the Council of Europe establishes the criteria for universal, equal, free, secret and direct suffrage, thereby making explicit to its member states which concrete steps they should adhere to, as well as providing measurable targets that can be used to evaluate elections by election monitors. The principles include one person one vote, freedom of voters to form an opinion, the secrecy of the individual ballot, and the direct election of representatives at national and local levels.
The Council of Europe regularly monitors elections at national, regional and local level, sending delegates both from the Parliamentary Assembly and the Congress of Local and Regional Authorities. However, while the Council of Europe has both measurable criteria for acceptable elections and a mechanism for observing elections in its member states, its acquis still falls short of legally binding its member states to comply with them.
In line with its goals and adopted principles on elections, the Council of Europe seeks to enhance election practices by making use of information and communication technologies. The Committee of Ministers’ recommendation on e-governance recommends strategies and suggests ways to streamline criteria for the best use of new technologies to improve participation and effective suffrage in elections.
With a view to ensuring a plurality of political parties represented in parliaments, the Council of Europe has an interest in ensuring adequate state funding for political parties, and reducing corruption in party funding. A Committee of Ministers Recommendation10 establishes a number of rules on this subject, in particular that: public-private financing of parties is acceptable as long conflicts of interest are avoided; all donations are transparent and political parties remain independent; there should be state rules governing the financing of parties; election campaign financing should be limited, and, finally, states should provide independent monitoring in respect of these principles.11 While this Recommendation and other documents12 display the Council of Europe’s commitment to supporting political parties and the prohibition of wrongful party financing13, it has yet to establish further-reaching legal implications. None of the Council of Europe’s conventions or otherwise legally binding adopted texts address this part of the democracy acquis.
Freedom of expression
Article 10 of the European Convention on Human Rights and Fundamental Freedoms14 marks a milestone in the promotion and protection of freedom of expression. It states that “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” In view of continuing infringements of this right in many member states, the Committee of Ministers has developed measures to promote respect of Article 10, affirming that “Freedom of expression and information, including freedom of the media, are indispensable for genuine democracy and democratic processes”.15 In response to growing challenges to the fulfillment of the freedom of expression, a Group of Specialists on Media Diversity16 has been established and recommendations and declarations have been adopted by the Committee of Ministers and the Parliamentary Assembly on a range of issues including freedom of expression in the information society and media and democratic culture.17
Transparency, responsiveness and accountability
A further major democratic concern of the Council of Europe is assuring the transparency, responsiveness and accountability of governmental institutions, administrations and individual representatives. An active media is considered to be a key element in ensuring accountability of political office. Freedom of the press is deemed to be a “fundamental component of freedom of expression” and a “prerequisite for a democratic political system.”18
As such, freedom of expression forms part of the domain of the European Court of Human Rights and is a legally binding principle the Council of Europe’s member states have to implement. Thus, the protection of the media, and the fostering of a national press that holds politicians and political institutions accountable, is not only a principle whose importance to the Council of Europe could not be overstated, but is also enshrined in, and protected by, the European Convention for the Protection of Human Rights and Fundamental Freedoms.
With the aim of prohibiting corruption in the public service, the Committee of Ministers adopted a recommendation19 on the conduct of public officials in which it is specified that conflicts of interest should be avoided, in the sense that public servants should act in the public interest, not in their personal interest, and misuse of public office is not acceptable.
The Council of Europe believes in the value of local self-government as a catalyst for democratic engagement, civil participation and as a forum for finding the best local solutions. The European Charter of Local Self-Government20 states that “local authorities are one of the main foundations of any democratic regime” and confirms “the right of citizens to participate in the conduct of public affairs” while “it is at the local level that this right can be most directly exercised.” The Charter commits the Parties to guaranteeing the political, administrative and financial independence of local authorities. It introduces the principle of subsidiarity, stating that public responsibilities should be exercised by the authorities closest to the citizens.
Similarly, the Council of Europe has developed a number of other charters and conventions that focus on aspects of sub-central government. The European Charter for Regional Minority Languages and the Convention on the Participation of Foreigners in Public Life at the Local Level, “both emphasize an important complementary role for sub-central government”, recognising that “regional and local government may provide a much better focus for protecting minority rights and cultures than nation-states.”21
The Council of Europe’s acquis on sub-national democracy reflects both the importance it attaches to this subject, as well as its achievements in incorporating key principles of sub-national democracy into legally binding charters and conventions.
Participation and civil society
One the Council of Europe’s major aims is to work towards stronger participation in public life and a flourishing civil society. It views both as central to the functioning of democracies, as is demonstrated by its acquis on the matter.
The European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations22 establishes criteria for the definition and thus legal recognition of international non-governmental organisations (INGOs). As part of its recognition of the centrality of civil society to democracy, the Council of Europe has granted participatory status to a range of INGOs23.
With a view to working towards increasing citizen participation in public life, the Committee of Ministers has adopted a Recommendation on balanced participation between men and women in political and public decision-making and a Recommendation on youth participation24. Both these texts aim to foster greater equality within public participation.
Following the 2007 session of the Council of Europe Forum for the Future of Democracy, the Conference of INGOs of the Council of Europe established a Code of Good Practice for Civil Participation in the Decision-Making Process25, aimed at contributing to “the creation of an enabling environment for NGOs in Council of Europe member States and Belarus by defining at European level a set of general principles, guidelines, tools and mechanisms for civil participation in the political decision-making process”26.
The Council of Europe is active in the field of education with a view to fostering democratic citizenship. The Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education states that “…education for democratic citizenship and human rights means education, training, dissemination, information, practices and activities which aim, by equipping learners with knowledge, skills and understanding and molding their attitudes and behaviour, to empower them to exercise and defend their democratic rights and responsibilities in society, to value diversity and to play an active part in democratic life, with a view to the promotion and protection of democracy and the rule of law.”27 Education is thus a crucial tool to give people the knowledge, understanding, skills and attitudes that will help them to play an effective role in their community – be it on the local, national or international level.
The Charter encourages member states to include education for democratic citizenship and human rights education in the curricula for formal education at pre-primary, primary and secondary school level as well as in general and vocational education and training.28 It acknowledges that the promotion of social cohesion and intercultural dialogue and the valuing of diversity and equality is an essential element of all education for democratic citizenship and human rights education.29 Whilst the Charter is non-binding, it provides an important reference point for all of Europe and will be used as a basis for the Council of Europe’s future work in this field in the coming years.
The Council of Europe acquis in the field of democracy education is testimony to the importance attached to learning and teaching of history30, the value of cultural heritage for society31 and intercultural dialogue as fundament for stable democracy32.
The Council of Europe contributes to the promotion of cultural diversity by enhancing intercultural dialogue, education and integration with a view to strengthening tolerance and furthering democratic development through culture. To further this aim, 2008 was declared “European Year of Intercultural Dialogue” and the White Paper “Living together as equals and in dignity”33 was presented to the Committee of Ministers. This text acknowledges the need to manage Europe’s increasing cultural diversity – rooted in the history of the continent and enhanced by globalisation – in a democratic manner; it suggests that the promotion of mutual understanding as a precondition for democratic development.
In the same vein, the Council of Europe seeks to empower children and youth with the long-term aim of strengthening democratic understanding, essential to the continuity of a democratic society. The European Convention on the Exercise of Children’s Rights34 offers a milestone text in this regard. It provides for measures to promote the rights of the children, in particular in family proceedings before judicial authorities; the judicial authority, or person appointed to act before a judicial authority on behalf of a child, has a number of duties designed to facilitate the exercise of rights by children. It indicates that children should be allowed to exercise their rights either directly themselves or through other persons or bodies who will represent their interests.
A Recommendation to strengthen the integration of children of migrants and of immigrant background35 has been adopted by the Committee of Ministers with a view to strengthening cultural diversity. It requests member states to facilitate the integration of children of immigrant background through adapted policies in the fields of language learning, staff recruitment at schools, human rights education and democratic citizenship.36
Social cohesion and sustainable development
Social cohesion and sustainable development are preconditions to furthering European integration and a democratic society. The Parliamentary Assembly Recommendation on “Fighting social exclusion and strengthening social cohesion in Europe”37 sets a benchmark for member States and other regional organisations to actively pursue such goals. The Council of Europe’s Social Cohesion Development Division monitors developments in this area.38
Protection of minorities
The Framework Convention for the Protection of National Minorities39 was the first legally binding multilateral instrument concerned with the protection of national minorities in Council of Europe member states. It seeks to promote the full and effective equality of national minorities by creating appropriate conditions enabling them to preserve and develop their culture and to retain their identity.
In 2010 the Parliamentary Assembly reviewed best practices and deficiencies in the implementation of common standards regarding the protection of minorities40 and passed a Resolution recalling its Recommendations 1492 (2001), 1623 (2003) and 1766 (2006), concerning the rights of national minorities. It also payed tribute to the fundamental role which the Framework Convention for the Protection of National Minorities (ETS No. 157) and the European Charter for Regional or Minority Languages (ETS No. 148) have played over the past years in improving the protection of national minorities in Europe and promoting their rights.
The quality and quantity of the Council of Europe’s acquis in the field of the protection of minorities is underscored in the legally binding character of most Council of Europe documents on this matter. The Council of Europe plays a vocal role in the protection and integration of minorities and has set several benchmarks addressing in particular the legal status and the fulfillment of human rights of migrants and Roma.41
The Council of Europe has created two consultative bodies that focus on the rule of law and the monitoring of corruption. These are the European Commission for Democracy through Law (Venice Commission) and the Group of States against Corruption (GRECO).
The Criminal Law Convention on Corruption42 deals with a broad number of acts of corruption, including the bribery of public officials, parliamentarians and judges. It provides for increased cooperation between member states on the criminalisation and prevention of corruption. The Civil Law Convention on Corruption43 complements the former convention, by defining common international rules in the field of civil law and corruption.44
The Council of Europe is aware of the rise in transnational threats such as cybercrime and terrorism that may challenge and undermine efforts to further democracy development. With the internet emerging as an indispensable element of citizens’ lives and institutional processes in the information society, cybercrime and misuse of data pose a growing threat to democratic societies, endangering democratic principles. It is in this vein that Council of Europe member states have taken steps to design a strong legal framework countering these threats by adopting appropriate legislation and fostering international co-operation45. The Council of Europe Convention on Cybercrime is the first international treaty on crimes committed via the internet and other computer networks, dealing particularly with infringements of copyright, computer-related fraud, child pornography and violations of network security. The legally-binding character of the agreements in the field of cybercrime46 is proof of member states’ concern and the need to actively protect democratic principles.
Perspectives in developing democracy
The Council of Europe’s achievements in developing democracy are notable. The legally binding parts of its acquis on democracy cover many areas, including human rights, the right to free elections, the freedom of the press, prohibition of corruption, the promotion of sub-central democracy and the recognition of INGOs.
Yet many perspectives in developing democracy in Europe remain to be addressed in legally binding texts and may form part of the future work of the Council of Europe. The development of democracy has always been, first and foremost, a national domain and this has possibly restricted the Council of Europe’s work in this field. With member states in different phases of democracy development and with diverging opinions on the implications of certain, agreed-upon principles of democracy, agreement on conventions, charters and treaties continues to be a challenge.
In this context, possible areas of further development of the democracy acquis into legally binding agreements texts might include: setting binding and measurable election standards (where considerable work has been done and where election monitoring already is in place); setting standards on e-governance (such as further work in the direction of certification methods for e-voting systems); agreeing on a common strategy to ensure adequate and legal party financing; and streamlining strategies to increase citizen participation.
1 Lawrence Pratchett and Vivien Lowndes, Developing Democracy in Europe - An Analytical Summary of the Council of Europe’s acquis, Council of Europe Publishing, 2004.
2 Ibid. p. 11.
3 Convention for the Protection of Human Rights and Fundamental Freedoms (1950) ETS No. 005; and First Protocol to the Convention (1952) ETS No. 009.
4 Statute of the Council of Europe (1949), ETS No. 001.
5 Convention on the Participation of Foreigners in Public Life at Local Level (1992) ETS No. 144.
6 Ibid. p. 49.
7 Parliamentary Assembly Resolution 800 (1983) on the Principles of Democracy, section 6Bi; Parliamentary Assembly Resolution 980 (1992) on Citizens’ Participation in Politics.
8 Parliamentary Assembly Resolution 1121 (1997) on Instruments of Citizen Participation in Representative Democracy, paragraph 6.
9 Venice Commission, Opinion No. 190/2002.
10 Committee of Ministers Recommendation Rec (2003) 4 on Common Rules against Corruption in the Funding of Political Parties and Electoral Campaigns.
11 Ibid., p. 60.
12 See Code of good practice in the field of political parties, Parliamentary Assembly, Report No. 12246 (2010).
13 See Financing political parties and election campaigns – guidelines – Making Democratic Institutions Work, ISBN 978-92-871-5356-2 (2004).
14 European Convention of Human Rights and Fundamental Freedoms, Art.10.
15 Declaration of the Committee of Ministers (2010) on Measures to promote the respect of Article 10 of the European Convention on Human Rights.
16 Member states’ current practice regarding the democratic and social contribution of digital broadcasting, Group of Specialists on Media Diversity (MC-S-MD) H/Inf (2009)10.
17 Parliamentary Assembly Recommendation 1407 (1999) on media and democratic culture; Freedom of communication on the Internet Declaration adopted by the Committee of Ministers (2003); Freedom of expression in Europe - Case-law concerning Article 10 of the European Convention on Human Rights, Human Rights files No. 18 (2007).
18 Parliamentary Assembly Recommendations 834 (1978) on Threats to the Freedom of the Press and Television.
19 Committee of Ministers Recommendation No. 2 (2000) 10 on Codes of Conducts for Public Officials.
20 European Charter of Local Self-Government, ETS N° 122.
21 European Charter for Regional or Minority Languages (1992) ETS No. 148, and Convention on the Participation of Foreigners in Public Life at the Local Level (1992) ETS No. 144.
22 European Convention on the Recognition of the Legal Personality of Non-Governmental Organisations, ETS No. 124.
23 Parliamentary Assembly Recommendation 1820 (2007) and Resolution 1589 (2007) on Co-operation between the Parliamentary Assembly and the Conference of INGOs, and Committee of Ministers Resolution (2003) 8 on the Participatory Status for International non-governmental organisations with the Council of Europe, and Committee of Ministers Resolution (1993) 38 on Relations between the Council of Europe and international non-governmental organisations.
24 Committee of Ministers Recommendation Rec (2003) 3 on balanced Participation of Women and Men in Political and Public Decision Making, Committee of Ministers Recommendation No. R (1997) 3 on Youth Participation and the Future of Civil Society.
25 Code of Good Practice for Civil Participation in the Decision-Making Process, Adopted by the Conference of INGOs of the Council of Europe (2009).
26 Ibid, p.4.
27 Council of Europe Charter on Education for Democratic Citizenship and Human Rights Education, adopted in the framework of Recommendation CM/Rec(2010)7 of the Committee of Ministers, Section 2a.
28 Ibid, Art. 6.
29 Ibid., Art. 5f.
30 See Teaching Democracy: a Collection of Models for Democratic Citizenship and Human Rights Education, Education for Democratic Citizenship and Human Rights (2008-2010) EDC/HRE Volume IV ISBN 928-92-871-6332-5 (2008); Learning History to understand and experience cultural diversity today (2007), The Image of the Other in History Teaching (2006 – 2009); History Education in Europe. Ten Years of Co-operation between the Russian Federation and the Council of Europe Directorate of Education, Culture and Heritage, Youth and Sport (2006).
31 Council of Europe Framework Convention on the Value of Cultural Heritage for Society, ETS No.199 (2005).
32 See White Paper on Intercultural Dialogue “Living together as equals and in dignity”, Launched by the Council of Europe Ministers of Foreign Affairs (2008); the Baku Declaration for the Promotion of Intercultural Dialogue Conference of Ministers responsible for Culture (2008); Kyiv Initiative for Democratic Development through Culture Ministerial Conference to launch the Kyiv Initiative Regional Programme (2006).
33 White Paper on Intercultural Dialogue “Living together as equals and in dignity”, launched by the Council of Europe Ministers of Foreign Affairs (2008).
34 European Convention on the Exercise of Children’s Rights European Treaty Series No. 160 (1996).
35 Strengthening the integration of children of migrants and of immigrant background, Committee of Ministers Recommendation (2008)4.
36 Ibid., Appendix to Recommendation CM/Rec(2008)4 on strengthening the integration of children of migrants and of immigrant background.
37 Fighting social exclusion and strengthening social cohesion in Europe, Parliamentary Assembly Recommendation 1355 (1998).
38 See A new strategy for Social Cohesion, Revised strategy for Social Cohesion (2004); Contribution of public service media in promoting social cohesion and integrating all communities and generations, Group of Specialists on Public Service Media in the Information Society (MC-S-PSM) H/Inf (2009) 5; Demographic challenges for social cohesion, Parliamentary Assembly Recommendation 1749 (2006) and Resolution 1502 (2006).
39 Framework Convention for the Protection of National Minorities (1995) ETS No. 157.
40 Minority protection in Europe: best practices and deficiencies in implementation of common standards, Parliamentary Assembly Recommendation 1904 (2010) and Resolution 1713 (2010).
41 Human rights of irregular migrants, Parliamentary Assembly Recommendation 1509 (2006); State of democracy in Europe: Specific challenges facing European democracies: the case of diversity and migration, Parliamentary Assembly Recommendation 1839 (2008)1 and Resolution 1617 (2008).
42 Criminal Law Convention on Corruption, ETS No. 173 (2009).
43 Civil Law Convention on Corruption, ETS No. 174 (2009).
44 Ibid, p.70.
45 Convention on Cybercrime, ETS No. 185, 2001.
46 Additional Protocol to the Convention on Cybercrime, concerning the Criminalisation of Acts of a Racist and Xenophobic Nature Committed Through Computer Systems, ETS No.189 (2003); Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, ETS No. 198, 2005.