Human rights: protection, promotion and prevention
The daily search for better ways to protect human rights is one of the Council of Europe’s basic goals, to be achieved in four main areas:
- effective supervision and protection of fundamental rights and freedoms;
- identifying new threats to human rights and human dignity;
- developing public awareness of the importance of human rights;
- promoting human rights education and professional training.
Among the most significant treaties in this area are the European Convention on Human Rights, the Revised European Social Charter, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the Framework Convention for the Protection of National Minorities.
The European Convention on Human Rights
A decisive step forward
The Council’s most significant achievement is the European Convention on Human Rights, an international treaty of unprecedented scope which was adopted in 1950 and came into force in 1953. It sets out a list of rights and freedoms which states are under an obligation to guarantee to everyone within their jurisdiction. It has also established international enforcement machinery whereby states and individuals, regardless of nationality, may refer alleged violations by contracting states of the rights guaranteed in the Convention to the judicial institutions in Strasbourg established by the Convention.
The Convention enshrines, among other things, the rights to life, to protection against torture and inhuman treatment, to freedom and safety, to a fair trial, to respect for one’s private and family life and correspondence, to freedom of expression (including freedom of the press), thought, conscience and religion and to freedom of peaceful assembly and association. Protocols have added other rights to those set out in the Convention, such as the abolition of the death penalty (Protocol No. 6).
Enforcing the Convention
The original enforcement machinery consisted of two institutions, the European Commission of Human Rights (1954), which essentially performed a filter function, and the European Court of Human Rights (1959), which passed judgment on cases referred to it by the Commission or by governments. The Committee of Ministers of the Council of Europe (government representatives from the Council’s member states) supervised execution of the Court’s judgments and adjudicated in cases which had not been referred to the Court where the Commission had found a violation.
From the early 1980s, the number of applications rose steadily, overburdening the system and increasing the length of proceedings, which could take up to five years from the introduction of an application to a final decision on the merits.
A constantly developing system
Reform of the procedure was necessitated by the increasing number of applications, their growing complexity and the widening of the Council of Europe’s membership from 23 in 1989 to 40 in 1996. To this end, a new protocol to the European Convention on Human Rights, Protocol No. 11, entered into force on 1 November 1998, setting up a single permanent Court in place of the Convention’s two existing institutions.
A single Court of Human Rights
The European Court of Human Rights is now directly accessible to the individual and its jurisdiction is compulsory for all contracting parties. It sits on a permanent basis and deals with all the preliminary stages of a case, as well as giving judgment on the merits.
The Court consists of a number of judges equal to the number of contracting states to the Convention. Judges are elected by the Parliamentary Assembly of the Council of Europe from a list of three candidates proposed by the Government concerned. Judges enjoy complete independence in the performance of their duties and do not represent the states which proposed them.
The current President of the Court is Jean-Paul Costa (France).
Any cases that clearly fail to satisfy one of the conditions to be admitted (for example the obligation to use all relevant legal remedies at national level first) or are plainly unfounded are sifted out of the system at an early stage by a unanimous decision of the Court, sitting as a three-judge Committee. Otherwise the Court sits mainly as a seven-judge Chamber. If applications are judged admissible, the Chamber may attempt to reach a friendly settlement between the parties. If this is impossible, the Chamber delivers its judgment.
Exceptionally, for example in cases raising a serious issue concerning the interpretation or application of the Convention, a case may be referred to a Grand Chamber of seventeen judges either by a Chamber before judgment or by one of the parties within three months of a Chamber judgment. Chamber judgments become final after three months and Grand Chamber judgments are final. The Court’s final judgments are binding on the state concerned.
Monitoring the execution of the Court’s judgments in which a violation is found is the task of the Committee of Ministers, which ensure that States take any general measures needed to prevent further violations (changing legislation, case-law, rules or practice). It also makes sure that compensation awarded by the Court is paid to the applicant and, in certain cases, that other concrete measures are taken to make sure full redress is granted (such as reopening procedures, lifting a banning or confiscation order, striking off a police record or granting a residence permit).
...covering a wide range of issues
Individual complaints concern an ever-broadening range of issues:
- disappearances and unlawful killings;
- torture and ill-treatment of detainees;
- arbitrary loss of liberty;
- lack of access to a court;
- lack of a fair trial within a reasonable time;
- telephone tapping;
- deportation and extradition;
- discrimination against homosexuals;
- freedom of the press;
- rights of parents of children taken into care;
- interference with property rights;
- dissolution of political parties.
Protocol 14bis, entered into force on 1 October, 2009, introduces two procedures aimed to increase the capacity of the Court to process applications filed against those states that ratify it:
- A single judge is able to reject plainly inadmissible applications. Previously, this required a decision by a committee of three judges.
- A three judge committee may declare applications admissible and decide on their merits in clearly well-founded cases and those in which there is a well-established case law, which are called repetitive cases. Previously, these cases were handled by chambers of seven judges or the Grand Chamber (17 judges).
These procedures are also contained in Protocol 14, which has not yet entered into force because it needs ratification by all Council of Europe member states. All member states but the Russian Federation have ratified it.
The European Social Charter
Fundamental social rights
The Revised European Social Charter sets out rights and freedoms and the supervisory procedures guaranteeing their respect by the States Parties. The 1996 revised European Social Charter came into force in 1999 and is gradually replacing the 1961 treaty.
All Europeans share these rights under the Charter and they affect every aspect of daily life, including housing, health, education, employment, social protection, personal travel and non-discrimination.
European Committee of Social Rights
The European Committee of Social Rights (ECSR) checks whether member states have honoured their undertakings under the Charter. The Council of Europe’s Committee of Ministers elects its fifteen independent, impartial members for a six-year term, renewable once. The ECSR determines whether law and practice in the States Parties comply with the Charter.
A monitoring procedure based on national reports
The States Parties report every year on their implementation of the Charter in law and in practice. The ECSR examines the reports, decides whether these procedures comply with the Charter and publishes its conclusions annually. If a state takes no action on a ECSR decision the Committee of Ministers addresses a recommendation to the state to change its laws or practices.
A collective complaints procedure
Complaints of violations of the Charter may be lodged with the European Committee of Social Rights under a protocol opened for signature in 1995, which came into force in 1998.
Organisations entitled to lodge complaints with the ECSR
- In the case of all states that have accepted the procedure:
- The European Trade Union Confederation (ETUC), BisnessEurope, former Union of Industrial and Employers’ Confederations of Europe (UNICE) and International Organisation of Employers (IOE);
- Non-governmental organisations (NGOs) with consultative status with the Council of Europe listed for this purpose by the Governmental Committee;
- Employers’ organisations and trade unions in the country concerned;
- In the case of states which have agreed:
- National NGOs.
The ECSR examines the complaint and declares it admissible if it meets the formal requirements. A written procedure follows admission; this involves an exchange of memoires, and the ECSR may order a public hearing. The ECSR then decides the case on its merits and reports its findings to the Committee of Ministers and the parties concerned; the report is published within four months of the decision. Finally, the Committee of Ministers adopts a resolution. If appropriate, it may recommend specific measures to bring the State’s laws and practices into line with the Charter.
Effects of the Charter in the various states
Member states make many changes to their legislation or practice to comply with the Charter as a result of the monitoring system. Details and current developments relative to the respective countries are published on the web site.
The Convention for the Prevention of Torture
Preventing torture and inhuman or degrading treatment or punishment
Little is seen of what goes on behind the closed doors of prisons, police stations, mental health institutions and the like. It is for this reason that the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment was adopted in 1987 and came into force in 1989. The Convention supplements the protection available under the European Convention on Human Rights by establishing a European Committee for the Prevention of Torture (CPT).
The CPT's members are independent and impartial experts from a variety of backgrounds; for example lawyers, medical doctors and specialists in prison or police matters.
The CPT visits places of detention (e.g. prisons and juvenile detention centres, police stations, holding centres for immigration detainees and psychiatric hospitals), to see how persons deprived of their liberty are treated. The committee has unlimited access to places of detention and may interview detainees in private. It may also communicate freely with any other person who can provide relevant information, including non-governmental organisations (NGOs) concerned with human rights.
The aim of the committee’s work is to strengthen the protection of detainees against torture and inhuman or degrading treatment or punishment, rather than to condemn states for abuses. After each visit, the CPT draws up a report setting out its findings and the recommendations which it considers necessary to improve the situation of persons deprived of their liberty. This confidential report is sent to the State concerned. The report includes a request for a written response from the State, setting out measures taken to implement the recommendations, reactions to comments and replies to requests for information.
The CPT’s reports and the replies from the states concerned are confidential, but it has become common practice for states to agree to make them public.
Exceptionally the CPT may decide to make a public statement if a state fails to co-operate.
The Framework Convention for National Minorities
Protecting persons belonging to national minorities
Following the 1993 Vienna Summit the Council of Europe adopted the Framework Convention for the Protection of National Minorities in 1994, the first legally binding multilateral instrument to protect national minorities in general. Contracting parties undertake to pursue the Convention’s objectives through national legislation and policies. These include ensuring equality before the law, preserving and developing cultures, safeguarding identities, religions, minority languages and traditions, guaranteeing access to the media and establishing free and peaceful contact across borders.
The Convention entered into force on 1 February 1998. Contracting states must report on the measures they have taken within one year of entry into force and once every five years thereafter. The Committee of Ministers and the Advisory Committee of 18 independent experts are both involved in monitoring the Framework Convention. The Advisory Committee evaluates these reports, determines whether the obligations have been met and adopts an opinion. This goes to the Committee of Ministers, which adopts a resolution containing its conclusions and recommendations. The rules governing this monitoring procedure also allow non-governmental organisations and minority associations to submit alternative information and/or shadow reports.
National minorities in Europe
The Council of Europe has devised a range of activities to protect national minorities as part of its co-operation and assistance programme: it organises meetings to give detailed information on the Framework Convention for the Protection of National Minorities (and other legal European instruments) and encourages non-party states to sign and ratify. Party states attend these meetings to discuss domestic developments and the implementation of the Convention in detail. Delegates include parliamentarians, government officials and representatives of national minorities. The Council’s experts give opinions on legislation for the protection of national minorities and it also organizes training seminars on drafting state reports in order to make the supervisory procedure more effective.
The decision to re-activate the Committee of Experts on Issues relating to the Protection of National Minorities (DH-MIN) was taken by the Ministers’ Deputies on 3 November 2004. The DH-MIN mandate foresees co-operation with and participation by other international organisations.
European Commission against Racism and Intolerance (ECRI)
Combating racism and intolerance
The ECRI was established at the 1993 Vienna Summit. It is an independent monitoring mechanism, whose task is to combat racism, xenophobia, antisemitism and intolerance in all Council of Europe member States from the perspective of the protection of human rights. ECRI’s action covers all necessary measures to combat violence, discrimination and prejudice faced by persons or groups of persons, on grounds of race, colour, language, religion, nationality and national or ethnic origin.
ECRI’s programme of activities comprises three aspects: country-by-country approach; work on general themes; relations with civil society.
In the framework of its country-by-country approach ECRI draws up reports which contain an in-depth analysis of the situation in each Council of Europe member State concerning instances of racism and racial discrimination, and practical proposals to help governments tackle any problems identified.
ECRI has adopted 12 general policy recommendations addressed to the governments of all Council of Europe member States as part of its work on general themes. These cover the main areas of current concern in the fight against racism and intolerance and provide basic guidelines for the development of comprehensive national policies.
ECRI’s programme of action on relations with civil society works to involve civil society fully in the fight against racism and intolerance and to promote intercultural dialogue based on mutual respect between the various sectors of society.
Promoting equality between women and men
From a general perspective of protecting and promoting human rights, the Council of Europe seeks to combat any interference with women’s liberty and dignity. These include violence against women, trafficking in human beings for sexual, or any other form of exploitation, to eliminate discrimination based on sex, to promote a balanced participation of women and men in political and public life and to encourage the integration of a gender perspective into all programmes and policies.
The Steering Committee for Equality between Women and Men (CDEG) prepares ministerial conferences, organises seminars and publishes studies on these questions.
Human rights awareness co-operation programmes
The Council of Europe provides support and assistance to member states and NGOs in their efforts to promote respect for human rights. Through its co-operation programmes, the Council of Europe organises training for professional groups such as judges, prosecutors, law enforcement officials and lawyers on the European Convention on Human Rights.
It also provides expert opinions on the compatibility of new legislation with European human rights standards, translation and publishing of human rights documentation in the local languages, seminars and round tables with and about national human rights institutions and training for the staff of government agents to the European Court of Human Rights.
The Human Rights programmes are complemented by a broader range of related awareness, training and information activities aimed at the general public and focusing on fostering public awareness of human rights issues through information campaigns, publications, audiovisual and on-line materials.
Convention on action against trafficking in human beings
Human being not for sale
Every year, thousands of women, children and men fall victim to trafficking for the purposes of sexual or other exploitation, both within and over borders. This phenomenon has reached such unprecedented levels that it can truly be called a new form of slavery.
The Council of Europe is an organisation whose primary concern is to safeguard and protect human rights. Its 47 member states include countries of origin, transit and destination of the victims of trafficking. This is why the Organisation is well placed to ensure that its member states adopt measures to fight trafficking in human beings.
The Council of Europe adopted the European Convention on action against trafficking in human beings in May 2005, and it is opened for signature by Council of Europe member states.
The aim of this Convention is to prevent and combat the trafficking in human beings in all its forms, national or international, whether or not it is linked with organised crime.
A first fundamental principle outlined in detail in the new convention is that the protection and promotion of the rights of the victims shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
The main added value of this convention is its human rights perspective, its focus on victim protection and its independent monitoring mechanism guaranteeing parties’ compliance with its provisions.
Police and human rights
Those responsible for maintaining law and order have themselves always constituted an important target group in the eyes of the Council of Europe. A wide-ranging programme entitled “Police and human rights 1997-2000” paved the way for the current programme “Police and human rights – beyond 2000”. The programme serves as a catalyst and aims to promote the respect and protection of human rights by members of the police forces. The programme involves long-tem co-operation with member states, the assessment of needs, the development and implementation of action plans and project evaluations.
Human Rights Commissioner
A Commissioner for human rights
The post of Commissioner for Human Rights was created in 1999.
The Commissioner is an independent institution responsible for promoting education, awareness and respect for human rights in member states and ensuring the full and effective compliance with the Council of Europe’s normative instruments.
The Commissioner plays an essentially preventive role, performing different functions from those of the European Court of Human Rights and other treaty-based organs. The Commissioner does not have executive powers but provides advice, analysis and recommendations to member States to remedy legislative shortcomings and prevent human rights violations in practice.
The Commissioner’s terms of reference also provide for the promotion of national human rights institutions and co-operation with other international organisations.
The Commissioner may act on any relevant information from governments, national parliaments, national ombudsmen or similar institutions, individuals and organisations.
The Commissioner can submit a report, recommendation or opinion on a specific matter to the Committee of Ministers and to the Parliamentary Assembly. The first holder of the post was Alvaro Gil-Robles (Spain) who was elected by the Parliamentary Assembly in September 1999. Thomas Hammarberg (Sweden) was elected to the post on 5 October 2005 and took up office in April 2006.