Training as a sine qua non to human rights protection
Training is one of the key elements in the human rights protection system, as it ensures that the actors involved play their role as they should and according to the standards set. It has become so important that numerous international bodies have required it in order to secure a harmonious knowledge of the principles to follow. The Council of Europe’s bodies frequently highlight the need of training and its importance in the human rights protection system and the present article aims at giving a brief overview of these expressions.
Firstly, the Committee of Ministers, in its Recommendation to the member states, stressed “the particular importance of appropriate university education and professional training programmes in order to ensure that the Convention is effectively applied, in the light of the case-law of the Court, by public bodies including all sectors responsible for law enforcement and the administration of justice”. It further recommended that human rights training is integrated “as a component of the preparation programmes of national or local examinations for access to the various legal professions and of the initial and continuous training provided to judges, prosecutors and lawyers”, as well as in “the initial and continuous professional training offered to personnel in other sectors responsible for law enforcement and/or to personnel dealing with persons deprived of their liberty (for example, members of the police and the security forces, the personnel of penitentiary institutions and that of hospitals), as well as to personnel of immigration services, in a manner that takes account of their specific needs”.
The Parliamentary Assembly’s Committee on Legal Affairs and Human Rights underlined that “in order to improve the application of the European Convention on Human Rights as interpreted by the European Court of Human Rights, law professionals must receive better training in this area”, inviting the Member States “to improve the training provided to law professionals on the Convention by… ensuring that the Convention and the Court’s case law form an integral part of the basic and further training they receive”. In the explanatory report preceding the Resolution, the Rapporteur found that “the training of law professionals is of paramount importance to ensure that Convention standards are firmly entrenched in the national law of member States. The perceived means of achieving this is often standardised training of judges, prosecutors and lawyers on the Convention's standards, as interpreted by the Court, taking into account the specific needs of each State. Often, a lack of appropriate training of the aforementioned law professionals leaves States ill-equipped and unable to correctly apply and integrate Convention standards. Proper implementation of the Convention at national level is essential to reducing the amount of applications brought before the Court, as well as the backlog of cases currently facing it, not to mention the need to improve the speed and efficiency of justice within States.”
Over time, the Court itself included training as one of the elements which count in the assessment of the adequate implementation of the Convention standards. In some cases, the Court considered the training as one of the elements in its assessment; in others, the Court looked into the training aspect from a more direct perspective, finding a direct link between the lack of it and the breach of the Convention articles and going as far as establishing an obligation to train in some specific cases. An overview of some relevant examples is presented below.
In the case of Kaçiu and Kotorri v Albania in which the Court had to examine whether the tribunal invested with the applicants’ criminal trial could be considered as being “established by law” and in compliance with the requirements of Article 6 of the Convention, the fact that the military judges “undergo the same educational and professional training which gives them the status of career members of the judiciary” played in favour of finding the respective court as “established by law”.
In the case of G.C.P. v. Romania the Court found that the professional training of judges made them “less likely than a jury to be influenced by the press campaign against the applicant on account of their professional training and experience, which allows them to disregard any external influence”.
In the cases in which structural problems are addressed in the context of repetitive cases highlighting systemic issues, the aspect of training is also brought up in terms of the improvement measures the State has undertaken in order to tackle the issue, once a pilot or a leading procedure has been instituted by the Court. As an example, in the case of Finger v. Bulgaria (concerning length of proceedings) the Government listed the “improved continuing legal training provided to judges” among the measures taken in order to achieve a functional judicial system.
On the matter of assessing whether the police agents involved in complex operations received adequate training, the case of Giuliani and Gaggio v. Italy, concerning the fatal shooting of a demonstrator by a member of the security forces at a G8 summit, brought forward the argument of the Italian Government, according to which they « had deployed considerable numbers of personnel to police the event (18,000 officers …) and that all the personnel either belonged to specialised units or had received ad hoc training in maintaining order during mass gatherings. M.P., in particular, had taken part in training courses in Velletri... ». This element, together with others considered by the Court, lead to the conclusion that Article 2 was not breached in this case.
In the case of Saadi v. Italy, concerning the risk of ill treatment to which the applicant could be exposed to if deported to Tunisia, where he was tried in absentia, the issue of training emerged with relation to the quality of training of legal professionals in the receiving country, based on the conclusions of reports and statements of Amnesty International and the representatives of the European Commission, the latter having « publicly criticised the slow pace of political reform and called for better training for judges and lawyers to consolidate the independence of the judiciary ». The Court found that deportation would constitute a violation of Article 3, in light of the assessment it made on the situation in the receiving country, based on the findings of international stakeholders active on the ground.
However, the case of Makaratzis v. Greece (concerning the failure to provide the required safeguards during a hot-pursuit operation, leading to the exposure of the applicant to a life-risking situation) underlined that the provision of adequate training alone does not excuse state agents from liability in case the operations impact on the protected rights of the citizens, but play a role in the assessment of whether the respective operation benefitted from a proper regulation and organisation so as to minimise to the greatest extent possible the loss of life. Thus, efforts to establish adequate training of police forces « with the stated objective of complying with the international standards for human rights policing » were seen by the Court as a welcome subsequent advancement, but could not preclude the finding of a violation in the case, because at the time of the events no such measures were yet in place.
The Strasbourg Court went even further in the case of Nachova v. Bulgaria, establishing an obligation to train with regard to law enforcement agents in the context of the use of firearms, stating that “law enforcement agents must be trained to assess whether or not there is an absolute necessity to use firearms, not only on the basis of the letter of the relevant regulations, but also with due regard to the pre-eminence of respect for human life as a fundamental value (see the Court's criticism of the “shoot to kill” instructions given to soldiers in McCann and Others, cited above, pp. 61-62, §§ 211-14).”
If the Court didn’t go as far as directly recommending training of a specific professional category for a better implementation of the Convention standards, this going further than its mandate, which is to control the application of the Convention at national level and not to tell states how to remedy issues or to prevent such situations, the Committee of Ministers is the one taking up this task. Thus, it is at the stage of the execution of the Court’s judgments that explicit measures are identified in order for a breach to be remedied (by way of individual measures mainly), but also means of preventing future similar breaches (by way of general measures). In order to demonstrate their commitment to the implementation of the Court’s findings, states identify and undertake several measures, brought to the attention of the Committee of Ministers through an action plan.
For instance, in the case of Opuz v. Turkey (concerning failure to prevent and adequately punish domestic violence, in breach of Articles 2, 3 and 14), one of the general measures taken by the Turkish state related to training and awareness raising, « in order to ensure that the judiciary and law-enforcement bodies respond appropriately to the cases of domestic violence they might face. In this respect, the Ministry in charge of women and family affairs carried out a number of joint projects with several other ministries in 2009 and 2010. These projects aimed at training and raising awareness of Family Court judges and prosecutors, religious officials, medical staff and managers of district level education centers on violence against women and “honour killings”. The subject on gender-equality and prevention of violence against women was introduced in the curriculum of the Turkish Academy of Justice in 2010. A number of country-wide campaigns against violence, such as “National Campaign to End Violence against Women”, aimed at raising awareness on this issue in society have been carried out.”
In the same line, the recent action plan concerning the execution of the judgment in Oya Ataman v. Turkey contains a detailed section on training and awareness raising initiatives, in the framework of the general measures taken to tackle the issue of disproportionate use of force during public manifestations, both for law enforcement agents and for the judiciary.
In the framework of the execution of a case concerning the applicant's right to respect for his private and family life in connection with his inability to have contacts with his minor daughter in breach of Article 8 of the Convention, the Ukrainian Government undertook to include the case (of Mamchur v. Ukraine) in the national training curricula for judges, informing the Committee of Ministers that « the courts were asked to consider the Court's judgment in the present case when preparing the summary of domestic case-law on cases concerning tutelage and guardianship over children, and National School of Judges - to include this judgment into educational and training programs for judges. »
Such examples are numerous and this approach, of integrating training activities in the general measures considered for the implementation of the Court’s judgments proves the crucial role of capacity building in the strive to achieve international standards.
The examples could go on with numerous reports of the Council of Europe’s monitoring bodies, such as the CPT, in which states are urged to provide adequate training for penitentiary staff, ECRI’s similar approach concerning training on anti-discrimination framework, or statements of the Commissioner for Human Rights. All converge towards the placement of capacity building and human rights training on the map for securing adequate protection at national level of the rights and freedoms guaranteed.
Regardless of whether training is mentioned as an assessment factor, in the form of a recommendation or as a duty, all stem from the presumed need to train as a landmark paving the road towards full implementation of the human rights standards. With the subsidiary principle to be soon introduced in the Preamble of the Convention, the primary role of national authorities and especially the courts will be fully defined, implying increased responsibility in securing the implementation of the Convention standards and eventually leading to easing the burden currently placed on the Court in Strasbourg.
In this context, capacity building reveals its true potential in improving the national systems of human rights protection and no better proof can be found than the joint efforts undertaken by member states with the considerable support of the Council of Europe and many other international organisations in training legal professionals and other stakeholders playing an important role in the human rights protection system. The increased importance of the Council of Europe’s HELP Programme is the expression of this underlying need and proves its utility and efficiency in tackling the issue of training in a harmonised way with the aim of contributing to the implementation of human rights standards across Europe.
As seen, the importance of training has been established, its need stated where the case, and the means provided, eventually leaving less and less room for tolerance where disregarded at national level in the strive to comply with international engagements concerning the protection of human rights.
European Human Rights Association
Member of the Editorial Board of the HELP Programme
 However, see the approach of the ECtHR in pilot cases, in which it does identify measures to be taken ; the procedure is framed for exceptional situations revealing systemic or structural problems ; for more information please see the ECtHR Registrar’s Note on the Pilot-Judgment Procedure.
 Current state of execution and overview of general measures available here : https://www.coe.int/t/dghl/monitoring/execution/Reports/pendingCases_en.asp?CaseTitleOrNumber=opuz&StateCode=&SectionCode=
 Amendment brought by Protocol No. 15, stating as follows : “Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention,”