The European system for the protection of human rights was established by the Council of Europe (CoE), a regional intergovernmental organisation. The CoE was founded in London on 5 May 1949 by 10 countries: Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden and the United Kingdom. Greece, Turkey, West Germany and Iceland joined in 1950. It has its seat in Strasbourg, France.
The CoE was established to defend human rights, parliamentary democracy and the rule of law; develop continent-wide agreements to standardise member countries’ social and legal practices and to promote awareness of a European identity based on shared values. According to Article 3 of the Statute of the CoE, any European state wishing to become a member of the organisation must ‘accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council.’
For this reason, the CoE consisted for many years solely of Western parliamentarian democracies. After the political changes in Central and Eastern Europe, however, most countries in that part of the world expressed their interest in joining the CoE. Of these, for instance, Hungary became a member in 1990 and Bulgaria in 1992. As of March 2009, 47 European countries are members of the CoE, with a total population of 800 million. Canada, the Holy See, Japan, Mexico and the USA have observer status. The CoE is distinct from the European Union, which is composed of 27 countries (see Part VI), but no country has ever joined the EU without first belonging to the Council of Europe. When Romania joined the CoE in 1993, a debate started as to whether the CoE is strict enough in applying its membership criteria. In later years, this debate has continued in relation to, among other countries, the Ukraine (member of the CoE since 1995) and the Russian Federation (1996). Negotiations about membership of Belarus (application submitted in 1993) have been suspended because of reported human rights abuses and a determined lack of democratic principles in the country’s constitution.
The founding members of the CoE were convinced that new divisions and conflicts in Europe could only be avoided by guaranteeing respect for the dignity of all human beings, and by sustained efforts towards mutual understanding and reconciliation of the European peoples. Therefore, in 1949, the Parliamentary Assembly gave its political blessing to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which was signed on 4 November 1950 and entered into force on 3 September 1953. All CoE member states are parties to the ECHR.
The acceptance of the ECHR and its mechanisms is a central part of the acquis of the Council. In the European context, notably in the European Union and in the Council of Europe, the term acquis implies that any country that accedes to such international organisation must accept the body of law that has been accepted or acquired by that organisation. This applies to those conventions to which all member states are parties and all the case-law.
Reflecting the Council’s human rights foundations, other significant treaties are the European Social Charter, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the Framework Convention for the Protection of National Minorities, the Convention on Human Rights and Biomedicine and the Convention on Action against Trafficking in Human Beings.
A. Principal organs and human rights bodies
The Statute of the CoE established the Committee of Ministers, the Parliamentary Assembly and the Secretariat under the authority of a Secretary General. A number of human rights bodies have been established by various CoE conventions and decisions, the most prominent of which is the European Court of Human Rights. Other human rights bodies include: a) the European Committee of Social Rights and the Governmental Committee under the European Social Charter; b) the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; c) the Advisory Committee on the Framework Convention for the Protection of National Minorities; d) the European Commission against Racism and Intolerance (ECRI); e) the Group of Experts on Action against Trafficking in Human Beings (GRETA); and f) the Commissioner for Human Rights.
1. The Committee of Ministers
The Committee of Ministers (CM) is composed by the Foreign Minister of each Council of Europe member state. The Committee is the CoE’s executive body, which meets once a year in Strasbourg. The Foreign Ministers’ Deputies (Permanent Representatives) meet about once a week, depending on the agenda. The CM is the Council’s policy-making body; it decides on the intergovernmental co-operation and working programme as well as on the organisation’s budget.
Until 1 November 1998, the Committee, under specific circumstances, was entitled to decide whether a violation of human rights under the ECHR had taken place. After Protocol No. 11 of the ECHR (see below) came into force, it no longer plays this role; but in accordance with Article 46 ECHR, the Committee retains the important function of supervising the execution of judgements of the Court. The Committee receives all cases from the Court. It is common to bring to the special attention of the CM cases where member states do not comply with a judgement. Although the CM cannot enforce judgements, ‘peer pressure’ plays an important role in the mobilisation of shame in relation to violating members.
In addition to policy making, the CM has since 1993 convened the Council of Europe Summits, which bring together Heads of State or Government of the member states to discuss major issues relating to the work and future of the CoE.
2. The Parliamentary Assembly
The Parliamentary Assembly brings together 318 representatives who are elected from national parliaments of the CoE member states and meet four times a year. All OSCE participating states that are not members of the CoE may attend the Assembly’s meetings as special guest delegations and are invited to any special meeting, provided they adhere to the OSCE human rights standards and principles. Because of concerns in this regard, the special guest status of Belarus was suspended in 1997 after a referendum, which extended the President’s powers, was deemed undemocratic. Mexico, Canada and Israel currently enjoy observer status in the Assembly.
The Assembly works in ten specialised committees where it debates international affairs and prepares reports, focusing on European issues. Although it has no legislative power, the Assembly may make recommendations to the 47 governments via the Committee of Ministers on any aspect of the Council’s work. The Assembly played an important role in the drafting of the ECHR.
3. The Secretary General and the Secretariat
The highest official of the CoE is the Secretary General (SG), who is elected for five years by the Parliamentary Assembly. The list of candidates is drawn up by the Committee of Ministers. The Secretary General acts as the depository for ratifications of and accessions to the ECHR as well as all other instruments (more than 190) concluded by the CoE.
Article 52 of the European Convention entrusts the Secretary General with the task of monitoring the effective implementation of the provisions of the Convention in national law. The Convention also allows the Secretary General to request states to report to him/her on a specific subject. The SG has asked for such reports only three times. Most recently, a request was sent to the 47 member states in November 2005, asking for clarification related to alleged violations of the ECHR. The allegations referred to secret detention centres in CoE member countries and rendition flights in cooperation with the CIA. A special rapporteur, Dick Marty, was appointed to investigate these allegations. In 2007 he established with a high degree of probability that secret detention centres operated by the CIA existed for some years in Poland and Romania resulting in the Parliamentary Assembly adopting stern recommendations on the issue.
The Secretary General also plays a role in various other supervisory mechanisms under the CoE. She/he is the head of the CoE Secretariat with a staff of approximately 1800, which serves the Council of Ministers, the Parliamentary Assembly and the Court.
4. The Commissioner for Human Rights
In 1999, the CoE established the position of the Commissioner for Human Rights of the Council of Europe. The Commissioner is elected by the Parliamentary Assembly for a period of six years. In 2006, Thomas Hammarberg took over the post from Alvaro Gil-Robles. His role is to promote the effective observance and full enjoyment of human rights, to identify possible shortcomings in the law and practice of member states and to assist them, with their agreement, in their efforts to remedy such shortcomings. Currently, the Commissioner’s published viewpoints address a variety of pressing issues, including discrimination against minorities, the protection of migrants and safeguarding human rights in the light of rising security concerns. Furthermore, the Commissioner undertakes regular visits to member states and focuses, inter alia, on the situation of vulnerable persons; such as, women in prisons, mentally ill children, refugees and ethnic minorities. The Commissioner also organises seminars on thematic issues such as the rights of the elderly and the rights of aliens arriving at the border of member states. Moreover, she/he maintains close contact with NGOs and professional groups involved in monitoring situations that lead or may lead to human rights violations, such as ombudsmen, judges and journalists. The Commissioner publishes an annual report summarising his activities and reports on the human rights situation in countries she/he has visited.
5. The European Court of Human Rights
The permanent European Court of Human Rights was established by Protocol No. 11 to the European Convention. The aim of this Protocol was to simplify the structure, shorten the length of proceedings and strengthen the judicial character of the system by making it fully compulsory. Pro- Umbrotið FYRIR GUÐRÚNU - Nota_Layout 1 8.4.2010 11:20 Page 129 col No. 11, which came into force on 1 November 1998, replaced the existing, part-time Court and Commission by a single, full-time Court. For a transitional period of one year (until 31 October 1999), the Commission continued to deal with the cases that it had previously declared admissible. Moreover, the Committee of Ministers’ adjudicative role was abolished. Despite these reforms the Court had become a ‘victim of its own success’ with more than 120.000 cases pending in early 2010. As a result, to make the Court more efficient and help reduce the backlog of applications, Protocol No. 14 was adopted in 2004. The Protocol was ratified by all member states early on, except for Russia, which finally ratified it in February 2010.
The Protocol will enter into force on 1 June 2010. The Court is composed of a number of judges equal to that of the contracting states (47 in March 2010). There is no restriction on the number of judges of the same nationality. Protocol 14 stipulates that judges shall be elected by the Parliamentary Assembly of the Council of Europe for a single term of nine years. The members of the Court are to be of high moral character and sit in their individual capacity (Article 21 ECHR).
Under its advisory jurisdiction, the Court may give advisory opinions at the request of the Committee of Ministers, on legal questions concerning the interpretation of the European Convention and its Protocols (Articles 47, 48 and 49). The Court has only delivered two advisory opinions, both concerning certain legal questions concerning the lists of candidates submitted with a view to the election of judges to the Court. Advisory opinions are given by the Grand Chamber.
Under its contentious jurisdiction, the European Court deals with both individual and inter-state complaints. The individual complaint procedure enables the Court to ‘receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto’ (Article 34 ECHR). The Court can also accept cases brought by states parties against other states parties who are alleged to be violating provisions in the Convention (Article 33). (For a detailed description of both procedures, see below).
The number of cases brought before the European system is rising rapidly. In 1988, for instance, 4,200 petitions were received; 18,200 were received in 1998; 50,500 were lodged in 2006. Only 5 % to 15 % of the received case applications are actually admissible. More than half the judgements delivered by the Court between 1998 and 2008 concerned four of the Council of Europe’s 47 member states: Turkey (1857 judgements), Italy (1789 judgements), France (613 judgements) and Poland (601 judgements). In the first decade after 1961, the former, non-permanent Court decided only 10 individual cases. In the period between 1960 and 1998, however, approximately 900 cases were decided while in 2002 alone 844 cases were adjudicated, compared to 1205 in 2008 (1 November). The system has become, to some extent, a victim of its own success. Of the approximately 120.00 cases pending before the Court, more than one fifth concern Russia. Because of the great number of cases, proceedings can take up to six years before the decision of the Court. It is hoped that the entry into force of Protocol 14 in June 2010 will bring increased efficiency of the Court by ‘filtering’ out cases that have less chance of succeeding as well as those that are broadly similar to cases brought previously against the same member state. The Protocol also introduces a new mechanism to assist enforcement of judgements by the Committee of Ministers. The Committee will be able to ask the Court for an interpretation of a judgement and refer to the Court the question whether a state has failed to fulfil its obligation to execute a judgement. Protocol 14 will also allow for the European Union accession to the ECHR. Furthermore, in all cases before a Chamber or the Grand Chamber, the Council of Europe Commissioner for Human Rights may submit written comments and take part in hearings.
Because of the reluctance of the Russian Federation to ratify Protocol 14, a provisional Protocol 14bis was opened for signature in 2009; it entered into force in October that same year. The Protocol was devised to allow the European Court of Human Rights to implement the revised procedures set out in Protocol 14 in respect of the states which have ratified it. Now that Russia has ratified Protocol 14, Protocol 14bis has become redundant and will, according to its own terms cease to have effect when Protocol 14 comes into force on 1 June 2010.
A complaint may be brought to the European Court of Human Rights by means of a letter written in any of the official languages of states that have ratified the Convention. The letter must include a summary of the alleged human rights violation(s) with a specification of the relevant articles under the Convention or one of the Protocols thereto. Furthermore, details on the legal steps taken at the national level and their outcome (preferably through copies of the court rulings) must be provided. A special form can be downloaded from the website of the CoE: www.coe.int.
6. The European Committee of Social Rights and the Governmental Committee
The European Committee of Social Rights (formerly the Committee of Independent Experts) and the Governmental Committee are the two human rights bodies set up under the European Social Charter to supervise state compliance with the Charter (see below).
The European Committee of Social Rights is composed of 15 experts who are appointed for six years. Its main function is to review the national reports of states parties to assess whether their national laws and practices are in accordance with the European Social Charter. After assessing the reports, the Committee adopts conclusions which it submits to the Governmental Committee.
The Governmental Committee is composed of representatives of the states parties and the international employers’ and employees’ organisations. Its main role is to advise the Committee of Ministers on situations of non-compliance with the European Social Charter, which should form the subject of recommendations to individual states parties.
Whoever feels that a state party to the ECHR has violated one or more of his/ her rights under the Convention can write a letter of complaint to the European Court of Human Rights, given that domestic remedies have been exhausted. The petition should be sent to the following address:
The European Court of Human Rights
Council of Europe
Tel.: 33 (0)3 88 41 20 18
Fax: 33 (0)3 88 41 27 30
7. The European Committee for the Prevention of Torture
The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT) is established by the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The Committee’s task is to examine the treatment of persons deprived of their liberty and for this purpose it is entitled to unlimited access to any place where people are being detained by a public authority. The Committee may then formulate recommendations to strengthen the protection from torture and inhuman or degrading treatment or punishment. In principle, these visits take place periodically, but if the Committee deems it necessary ad hoc visits on very short notice may be organised (Article 7(1)). As of March 2010, the Committee states a record of 282 visits (including 111 ad hoc) and 230 reports.
NGOs are important sources of information for the Committee. The information gathered during visits, the ensuing report and the consultations with the state concerned are confidential. However, if the state expressly requests it, the report is made public. The Committee can also decide, by a two-thirds majority, to make a public statement on the situation, in case the state is not willing to co-operate (Article 10(2)).
Each state party has an expert on the Committee, acting in a personal capacity and elected for a four-year term by the Committee of Ministers. The Committee is composed of persons from a variety of backgrounds, including lawyers, doctors, prison experts and persons with parliamentary experience, who enjoy privileges and immunities during the exercise of their functions (Article 16 Part II. and Annex). The Committee meets three times a year. While the European Court aims at a solution in legal terms, the Committee aims at prevention of violations in practical terms. The Committee is non-judicial, also in the sense that it cannot adjudge individual complaints or award compensation. This is the task of the Court, which deals with cases in the field of torture and inhuman or degrading treatment or punishment under Article 3 ECHR. At the heart of the work of the Committee are the principles of co-operation and confidentiality since the objective is assistance to states and not condemnation (see II??2.C).
THE EUROPEAN CONVENTION OF HUMAN RIGHTS AND PROTOCOLS
Articles 2 to 14 of Section I of the Convention set out the following rights and freedoms: right to life (Article 2); prohibition of torture (Article 3); prohibition of slavery and forced labour (Article 4); right to liberty and security (Article 5); right to a fair trial (Article 6); no punishment without law (Article 7); right to respect for private and family life (Article 8); freedom of thought, conscience and religion (Article 9); freedom of expression (Article 10); freedom of assembly and association (Article 11); right to marry (Article 12); right to an effective remedy (Article 13); prohibition of discrimination (Article 14).
Articles 15 to 18 deal, respectively, with derogation in time of emergency, restrictions on political activity of aliens, prohibition of abuse of rights and limitations on use of restrictions on rights.
Section II (Articles 19 to 51) regulates the supervision by the European Court.
Some of the 14 Protocols added to date (March 2009) to the ECHR added specific rights to the Convention, others amended the supervisory mechanisms. They are summarised below.
The First Protocol (1952): deals with protection of property (Article 1); right to education (Article 2); and right to free elections (Article 3) (ETS No. 9).
The Second Protocol (1963):gives the Committee of Ministers of the CoE the right to ask the European Court of Human Rights for advisory opinions concerning the interpretation of the ECHR and its Protocols (ETS No.044).
The Third Protocol (1963):amends a few articles of the Convention (incorporated in the ECHR itself) (ETS No.045).
The Fourth Protocol (1963):deals with: prohibition of imprisonment for debt (Article 1); freedom of movement (Article 2); prohibition of expulsion of nationals (Article 3); and prohibition of collective expulsion of aliens (Article 4) (ETS No.046).
The Fifth Protocol (1966): stipulates procedural amendments to a few articles of the Convention (incorporated in the ECHR itself) (ETS No.055).
The Sixth Protocol (1983): abolishes the death penalty in peacetime (ETS No.114).
The Seventh Protocol (1984):deals with procedural safeguards relating to expulsion of aliens (Article 1); right of appeal in criminal matters (Article 2); compensation for wrongful conviction (Article 3); right not to be tried or punished twice (Article 4); and equality between spouses (Article 5) (ETS No. 117).
The Eighth Protocol (1985): was designed to improve and speed up the petition procedure (incorporated in the ECHR itself) (ETS No. 118).
The Ninth Protocol (1992): deals with the petition procedure; it extends to individuals the right to refer a case to the European Court (repealed after the coming into force of the Eleventh Protocol) (ETS No. 140).
The Tenth Protocol (1992): amended the decision-making process of the Committee of Ministers (the Protocol is obsolete as a result of the Eleventh Protocol) (ETS No. 146).
The Eleventh Protocol (1994): changes the supervisory mechanism of the ECHR (ETS No. 155) (see the following section).
The Twelfth Protocol (2000):introduces a general prohibition of discrimination. The Convention contains an article prohibiting discrimination but only with regard to rights and freedoms set forth in the Convention (ETS No.177).
The Thirteenth Protocol (2002):abolishes the death penalty under all circumstances (ETS No. 187).
The Fourteenth Protocol (2004): amends the control system of the Convention (ETS No.194). This Protocol will enter into force in June 2010.
B. Other relevant human rights organs
The Advisory Committee on the Framework Convention for the Protection of National Minorities is responsible for evaluating the implementation of the Convention and advising the Committee of Ministers (see II??2.C). The Committee’s 18 members, elected and appointed for four years, meet ‘as required for the exercise of their function’ (Rule 13 of the Committee’s Rules of Procedure). The Committee reviews state reports but can also appoint special rapporteurs for independent investigation. The results of this evaluation consist in detailed country-specific opinions adopted following a monitoring procedure. This procedure involves the examination of state reports and other sources of information as well as meetings with governmental interlocutors, national minority representatives and other relevant actors. In 2006, the Committee published its ‘Commentary on Education’, which launches its three-fold thematic work. In 2008, the ‘Commentary on Participation’ was published.
Another human rights body is the European Commission against Racism and Intolerance (ECRI). This Commission was set up following a decision by the 1st Summit of Heads of State and Government of the member states of the Council of Europe in October 1993. The decision was taken in reaction to the ethnically and racially motivated human rights violations in the Balkans. In addition, various serious incidents of racially motivated violence in several Western European cities called for decisive action at the international level. The Commission’s task is to combat racism, xenophobia, anti-Semitism and intolerance in the greater European area with the protection of human rights at the forefront. The Commission is a typical non-treaty based supervisory mechanism. It monitors the situation in each CoE country and drafts reports and country-specific recommendations in approximately four-year cycles. The reports are meant to contribute to a dialogue with the state concerned and to long term improvement with regard to combating racism and intolerance. In addition, the ECRI has produced numerous General Policy Recommendations, whereby general comments and conclusions are drawn up on specific subjects related to combating racism.
Mention should be made of the Steering Committee for Equality between Women and Men (CDEG), which comprises appointees from CoE member states, observers from other countries (e.g., Japan, Canada, Belarus, USA), and a representative of the Holy See. The intergovernmental body is responsible for defending, stimulating and conducting the CoE’s action to promote equality between women and men. It reports directly to the Committee of Ministers, from which it receives its instructions and to which it addresses its reports and proposals.
Finally, the Group of Experts on Action against Trafficking in Human Beings (GRETA), a technical body composed of independent experts, is established by the Convention on Action against Trafficking in Human Beings which entered into force in February 2008. GRETA shall have a minimum of ten and a maximum of 15 members, chosen with geographical and gender balance in mind, as well as need for multidisciplinary expertise. GRETA is to regularly draw up reports evaluating the measures taken by the states parties. Those states which do not fully respect the measures stipulated in the Convention will be required to step up their action.
C. Standards and supervisory mechanisms
1. The European Convention for the Protection of Human Rights and Fundamental Freedoms, its Protocols and The European Court of Human Rights
On 4 November 1950, ministers of 15 European countries gathered in Rome and signed the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). All CoE member states are parties to the Convention. Over the years, a total of 14 Protocols to the ECHR have been adopted. Some have amended the original text of the Convention or Convention procedures; others have extended the human rights catalogue of the Convention itself.
Article 1 ECHR stipulates that all states parties must ‘secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’. The ECHR applies to all persons under the jurisdiction of the contracting states; thus the Convention protects not only the nationals and citizens of the state, but all persons under its jurisdiction affected by a measure taken by its authorities.
In addition to the establishment of a catalogue of civil and political rights and freedoms, the ECHR established the procedural mechanisms to be followed by the European Court and the Committee of Ministers to ensure the enforcement of the European Convention by states parties. In the case of an individual complaint, after the receipt of a complaint, the Court needs to decide whether the complaint is admissible. The admissibility criteria include: a) all domestic remedies must have been exhausted, according to ‘the generally recognised rules of international law’(Article 35(1)); b) the case must have been taken to the Court within a period of six months from the date on which the final decision was taken (Article 35(1)); c) the alleged human rights violations must be covered by the ECHR or one of the Protocols ratified by the state concerned (Articles 34 and 35(3)); d) the complaint must not be anonymous (Article 35(2.a)), nor ‘substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information’ (Article 35(2.b)); and e) the complaint must not be incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of application (Article 35(3)). Protocol No. 14 sets out a new criterion: the applicant must have suffered ‘significant disadvantage’ (Article 12 Protocol No. 14) attributable to their case or during the process of exhausting domestic remedies. This ground can only be used where the subject-matter has already been considered by a national court and respect for human rights as defined in the Convention and the Protocols thereto does not require an examination of the application on the merits (Article 35(3.b). It should be noted that human rights activists have expressed concern about the vagueness of this criterion.
Most petitions are deemed inadmissible on the basis of the written information provided by the plaintiff; for instance, complaints which are not directed against a state but against an individual are in principle not admissible.
A vast majority of cases –about 85% to 95 % –submitted to the European Court are declared inadmissible. When protocol 14 enters into force, a single judge may declare an application inadmissible or strike it out of the Court’s list of cases, where such a decision can be taken without further examination. If the single judge does not declare an application inadmissible or strike it out, that judge shall forward it to a committee or to a Chamber for further examination. A committee may declare a case inadmissible or strike it out of its list of cases or declare it admissible and render at the same time a judgment on the merits, if the underlying question in the case, concerning the interpretation or the application of the Convention, is already the subject of well-established case-law of the Court. (Articles 27, 28 and 29, as amended by Protocol 14). Where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court, the Chamber may relinquish jurisdiction in favour of the Grand Chamber (17 judges), unless one of the parties to the case objects. Furthermore, within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber. A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the protocols thereto, or a serious issue of general importance. If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgement (Article 43), where separate opinions are allowed (Article 45(2)). The Court may afford just satisfaction to the injured party (Article 41).
At any stage of the proceedings, the Court may place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention and the Protocols thereto. This procedure is confidential. If a friendly settlement is reached, the Court ‘shall strike the case out of its list by means of a decision which shall be confined to a brief statement of the facts and of the solution reached’. The decision is then Council of Europe transmitted to the Committee of Ministers, which supervises the execution of the terms of the friendly settlement (Article 39).
If a friendly settlement is not reached, the Chamber proceeds by organising a public hearing (Article 40(1)), leading to a decision on the merits of the case. The Court shall examine the case together with the representatives of the parties and, if need be, undertake an investigation. The state shall furnish the Court with all necessary facilities for such an investigation (Article 38).
When a case is decided, the judgement shall be transmitted to the Committee of Ministers ‘which shall supervise its execution. If the Committee considers that the supervision of the execution of a final judgment is hindered by a problem of interpretation of the judgment, it may refer the matter to the Court for a ruling on the question of interpretation. A referral decision requires a majority vote of two thirds of the Committee. If the Committee of Ministers considers that a state refuses to abide by a final judgment it may refer to the Court the question whether that state has failed to fulfil its obligation to abide by a judgement. If the Court finds that this is the case it shall refer the case to the Committee of Ministers for consideration of the measures to be taken. If the Court finds no violation, it shall refer the case to the Committee of Ministers, which shall close its examination of the case (Article 46).
The Committee of Ministers examines the violation(s) found in each case and decides on measures to be taken by the state in order to comply with the judgement. In addition to compensation, where appropriate, the state may be obliged to take measures to remedy the consequences of the violation(s) for the applicant (e.g., re-opening of domestic proceedings). General measures may also be required, if necessary, to avoid continued violations (e.g., amendment of legislation).
Inter-state complaints are governed by Article 33 ECHR, which enables any state party to refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another state party. It is not imperative that there be any relationship between the rights and interests of the referring state and the alleged breaches of the Convention. Furthermore, the ECHR allows a state to submit a complaint regarding violations committed against persons who are not nationals of a CoE member state, stateless persons and even persons who possess the nationality of the violating state. The subject of the complaint may also be the national legislation or government practices. The mechanism has been instituted several times although the Court has only delivered judgements in three cases: Ireland v. the United Kingdom (1978), Denmark v. Turkey (2000) and Cyprus v. Turkey (2001). In March 2007 Georgia lodged a case against Russia concerning the treatment of Georgian nationals by Russian authorities, namely unlawful arrests, detention and collective expulsion. The application was declared admissible in June 2009.
Evolving principles in the interpretation of the European Court
The dynamic nature of the interpretation of the human rights instruments has led to the emergence of certain principles that have been applied in the work of the regional human rights courts. Some find their roots in age-old principles used in national courts, while others emerged only in recent decades. Emphasis here is placed on the principles of proportionality, the margin of appreciation and subsidiarity which hold an important place in the interpretation of the European Convention.
When a state interferes with an individual right, the principle of proportionality requires the consideration of a fair balance between the general interests of the community and the requirements for the protection of the individual’s fundamental rights. In James v. The United Kingdom, the European Court held that ‘there must also be a reasonable relationship of proportionality between the means employed and the aim sought to be realised’; this notion of a fair balance is not respected if the person concerned has had to bear an individual and excessive or disproportionate burden as a result of the state’s interference. The ‘test of proportionality’ has been applied in numerous cases before the European Court and it can be argued that the principle has acquired the status of a general principle under the European Convention. The Court’s examination is generally of a marginal nature, reviewing only whether a measure is disproportionate or not. Where the Court considers the individual’s burden excessive or disproportionate, it finds that the state has violated the Convention. The Court applies the proportionality test first and foremost when interpreting the restriction clauses under Articles 8 to 11, Article 14 and Article 1 Protocol 1. The test is not uniformly applied; the Court is stricter, for instance, in the interpretation of Articles 8 to 11 than in the interpretation of Article 1 Protocol 1 (property). Proportionality is also a central principle in the case-law of the Court of Justice of the European Union.
The subsidiarity principle, a keystone in the interpretation of the European Convention, was formulated by the European Court more than 30 years ago in Handyside v. The United Kingdom. The principle reflects the division of responsibility for human rights protection between the national and international levels. The Court points out that there are areas where national authorities must be given genuine discretionary powers — powers which, up to a certain point, the Court is obliged to respect. In light of the complexity and sensitivity of the issues involved in policies balancing the interests of the general population the Court can only take on a strictly supervisory role. As the Court has reaffirmed, it is the state which is primarily responsible for guaranteeing enjoyment of the rights and freedoms enshrined in the Convention. The Strasbourg supervisory system will never provide an adequate substitute for effective human rights protection at the national level; it is to be complementary to such protection. The Court is not a European court of appeal. It intervenes where national protection breaks down but it cannot replace it. The Convention is concerned with individuals, but it can only rule on the complaints of those few individuals who bring their cases to Strasbourg. Given also the administrative and procedural limitations of the Court, national human rights protection is of prime importance.
Margin of appreciation
Closely related to the principle of subsidiarity is the doctrine of the margin of appreciation, which entails that a state’s legislative or judicial authority is allowed a certain margin in the interpretation of human rights law in the discharge of its responsibilities. In a democratic society, state authorities are generally considered to be in a better position than the international judge when appreciating complex factors and balancing conflicting considerations of public and private interests. Again, as in the case of proportionality, the application of the margin of appreciation by the Court varies. The scope of the margin of appreciation will differ according to the circumstances, the subject-matter and background. This may appear complex, but a clear logic can be discerned when one studies the European case-law. In cases regarding issues such as freedom of expression where a common European view on acceptable restrictions can be identified, a narrower margin of appreciation is applicable. In the case of the protection of morals, a concept that may differ more from one country to another, the Court allows a much wider margin of appreciation. Similarly, there will be a difference in the margin of appreciation between the strict interpretation of the freedom of religion on the one hand and of the right to property on the other. Property rights may be subject to a wide margin, in view of substantial differences in interpretation between countries, given political priorities and, for instance, tax policies. One sees the interplay between various factors determining the margin of appreciation. In itself this creates a degree of variety. At the same time, the margin of appreciation assists in defining the respective roles of the national courts and authorities on the one hand and the supervisory mechanism on the other.
THE ESC AND PROTOCOLS
Articles 1–4: labour rights
Articles 5–6: trade union rights
Articles 7–8: rights to protect employees and other groups of persons (children, young people and women)
Articles 9–10: rights in connection with vocational and professional training
Articles 11–17: rights to social security, social and medical assistance
Articles 18–19: rights connected with labour mobility (migrant workers)
New articles in the revised European Social Charter
Article 20: non-discrimination based on sex
Articles 21–22: right to participation in decision-making at the workplace Article 23: rights of the elderly
Articles 24–25: protection related to the termination of employment
Article 26: right to dignity
Articles 27: protection of workers with family responsibility
Articles 28–29: rights of worker representatives
Articles 30–31: protection against social exclusion and poverty; right to housing
The First Protocol (1988): contains, inter alia, an article on the right to equal opportunities and equal treatment in matters of employment and occupation regardless of sex (ETS No. 128).
The Second Protocol (1991): contains changes in the supervisory procedure (see below) (ETS No. 142).
The Third Protocol (1995): provides for a system of collective complaints. This implies that contracting states recognise the right of national and international organisations of employers and trade unions and of certain nongovernmental organisations to submit complaints to the Committee of Experts alleging unsatisfactory application of the ESC (ETS No. 158).
The Preamble of the ESC provides a general description of the objectives of the Charter. Parts I and II list, in 19 articles (31 in the revised version), the substantive rights protected by the Charter (see above). Part III (Article 20) indicates minimum requirements that states parties have to fulfil. Part IV contains articles pertaining to supervision and implementation of the Charter, while Part V, besides several final articles, indicates the conditions under which states parties may depart from their obligations under the Charter. An appendix to the ESC includes, inter alia, explanations of interpretations of various articles.
2. European Social Charter and The European Committee of Social Rights
On 18 October 1961, the European Social Charter (ESC) (ETS No. 163) was opened for signature in Turin. It entered into force in February 1965. As of February 2009, it had been ratified by 15 states. The European Social Charter was revised in 1996. The European Social Charter (revised) (ETS No.163) had, by February 2009, been ratified by 25 states. Over the years, several Protocols have been annexed to the Charter.
The ESC is a so-called ‘à la carte’ convention; states parties do not have to accept all articles, but rather can choose the articles by which they consent to be bound. Article 20 does, however, oblige every state party to consider Part I of the ESC as a declaration of the aims that it will pursue by all appropriate means, both national and international. Moreover, states parties have to consider themselves bound by at least five of the seven listed articles of Part II (Articles 1, 5, 6, 12, 13, 16 and 19) and they have to make a choice among the other articles in Part II so that a ‘package’ is formed of at least 10 articles (or 45 numbered paragraphs of Part II, into which the articles are subdivided). States parties have to accept this package before ratifying the Charter. At a later stage, states parties may declare themselves bound by any of the other articles or paragraphs as well.
The Charter contains a supervisory mechanism, which is comparable to the mechanisms of the ILO (see II§1.D). Every state party must report on a regular basis (every second year for hard core articles and every four years for non-hard core articles) to the Secretary General of the CoE on the implementation of the obligations accepted. The European Committee of Social Rights examines this report and submits its findings, together with the country reports, to the Governmental Committee. This Committee is composed of representatives of the states parties and the international employers’ and employees’ organisations. The Governmental Committee selects, on the basis of social, economic and other policy considerations, the situations that call for recommendations to the states parties. The Committee of Ministers issues recommendations to states that fail to comply with the Charter’s requirements in concert with the Parliamentary Assembly. The conclusions of the European Committee of Social Rights are used as a basis for the periodical organisation of social policy debates.
3. European Convention for the Prevention of Torture and The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
To strengthen the European system of human rights supervision, the CoE adopted the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT) on 26 November 1987 (ETS No. 126). As of March 2010, the Convention had been ratified by all CoE states.
The ECPT established a European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The Committee’s task is to examine the treatment of persons deprived of their liberty and for this purpose it is entitled to unlimited access to any place where people are being detained by a public authority. The Committee may then formulate recommendations to strengthen protection against torture and inhuman or degrading treatment or punishment. In principle, these visits take place periodically but, if the Committee deems it necessary, ad hoc visits on very short notice may be organised (Article 7(1)). NGOs are important sources of information for the Committee. The information gathered during visits, the ensuing report and the consultations with the state concerned are confidential. However, if the state expressly requests it, the report is made public. The Committee can also decide, by a two-thirds majority, to make a public statement on the situation, in case the state is not willing to cooperate (Article 10(2)).
Each state party has an expert on the Committee, acting in a personal capacity and elected for a four-year term by the Committee of Ministers. The Committee is composed of persons from a variety of backgrounds, including lawyers, doctors, prison experts and persons with parliamentary Council of Europe experience, who enjoy privileges and immunities during the exercise of their functions (Article 16 and Annex). The Committee meets three times a year. While the European Court aims at a solution in legal terms, the Committee aims at prevention of violations in practical terms. The Committee is non-judicial, also in the sense that it cannot adjudge individual complaints or award compensation. This is the task of the Court, which deals with cases in the field of torture and inhuman or degrading treatment or punishment under Article 3 ECHR. At the heart of the work of the Committee is the principle of co-operation; the Committee’s aim is to co-operate with the competent authorities, focusing on assistance to states and not condemnation.
The ECPT is unique because it does not contain any articles defining the material scope of the Convention. Unlike the CAT, it does not contain any substantive provisions concerning torture and inhuman or degrading treatment or punishment, nor does it include a definition of torture. The Convention leaves these aspects as well as the consideration of individual complaints to the ECHR and the European Court. The aim of the Convention is to strengthen the protection of persons deprived of their liberty by establishing non-judicial machinery for the prevention of torture. The Convention therefore only creates a supervisory mechanism.
According to Article 8(2) ECPT, a party shall provide the Committee with a number of facilities to carry out its task, including a) access to its territory and the right to travel without restriction; b) full information on the places where persons deprived of their liberty are being held; c) unlimited access to any place where persons are deprived of their liberty, including the right to move without restriction in prisons, police cells, mental hospitals and military barracks and interview detainees in private; and d) other information available to the party which is necessary for the Committee to carry out its task. In seeking such information, the Committee shall have regard to applicable rules of national law and professional ethics.
4. The Framework Convention for the Protection of National Minorities and its Monitoring Mechanisms
With the fall of the Berlin Wall and the re-emergence of ethnic conflict in Europe, the issue of national minorities has become increasingly important. In the course of the 1990s, several initiatives and co-operation programmes were undertaken to protect minorities through the CoE and two Conventions have been concluded.
The Framework Convention for the Protection of National Minorities entered into force on 1 February 1998 (ETS No. 157). It is the first legally binding multilateral instrument on the general protection of national minorities. The aim of the Convention is to set out the principles that states undertake to respect to ensure the protection of national minorities and the title indicates the mostly programmatic and discretionary nature of the Convention.
The obligations are state obligations, not individual or collective rights, leaving the states a measure of discretion in the implementation of the principles. As of March 2010, there were 39 states parties to the Convention. The monitoring of the Convention is based on the examination of state reports. The main monitoring body of the Convention is the Committee of Ministers, which is assisted in this work by an Advisory Committee of Independent Experts. The Advisory Committee adopts opinions on the implementation of the Convention and on the basis of the reports; the Committee of Ministers adopts its conclusions, normally in the form of a resolution. The Committee of Ministers may also make specific recommendations to the states.
Another Convention addressing minorities is the European Charter for Regional or Minority Languages adopted in 1992 (ETS No. 148). As of March 2010, the Charter had been ratified by 24 states. The Charter sets out various measures that states may undertake to promote regional or minority languages. The Charter is supervised by the Secretary General of the CoE, with assistance from the Committee of Experts.
PROCEDURE UNDER THE ECPT
Committee: members elected; one member from each state party; elected for a four-year term; members can only stand for re-election once (Articles 4, 5)
Visits: periodic and country visits, in principle unannounced follow-up visits (periodically); as a rule visits involve at least two Committee members (in practice usually three to five members); under special circumstances, the entire Committee or just one member; as a rule visits to larger institutions are announced a few days in advance; visits to police stations are unannounced.
Report (Article 10): contains facts and recommendations; must be submitted to state concerned within six months of the visit; confidential (may be published only at the request of the state concerned).
Official reaction of state concerned: Committee expects plan of action regarding improvements; interim report must be published within six months of plan of action; follow-up report must be published within 12 months.
Follow-up: consultations with state concerned aimed at improving the situation; public statement made by Committee after follow-up report if state concerned fails to co-operate or refuses to improve the situation along the lines set out in the recommendations.
5. Convention on Human Rights and biomedicine and the CDBI
The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (ETS No. 164) is the first legally-binding international instrument designed to preserve human dignity, rights and freedoms, through a series of principles and prohibitions against the misuse of biological and medical advances. The Convention was opened for signature in 1997 and entered into force in 1999. As of March 2010, the Convention has 25 states parties.
The Convention is founded on the principle that the interests and welfare of the human being shall prevail over the sole interest of society or science. It establishes a series of principles and prohibitions concerning, inter alia, bioethics, medical research, consent, rights to private life and information, organ transplantation and public debate. All forms of discrimination based on a person’s genetic make-up are prohibited and predictive genetic tests are only permitted for medical purposes. Genetic engineering may only be used for preventive, diagnostic or therapeutic reasons; it may not aim to change the genetic make-up of a person’s descendants. The Convention prohibits the use of techniques of medically assisted procreation to help choose the sex of a child, except where it would avoid a serious hereditary condition. Detailed rules related to medical research and consent are set out and the creation of human embryos for research purposes is prohibited. The Convention stipulates that all patients have a right to be informed about their health, including the results of predictive genetic tests. It also recognises the patient’s right not to know. Removal of organs and other tissues which cannot be regenerated from people not able to give consent is prohibited except, under certain conditions, regenerative tissue (especially bone marrow) between siblings. Finally, the Convention recognises the importance of promoting a public debate and consultation on the issues it addresses.
The Steering Committee on Bioethics (CDBI) is responsible for the intergovernmental activities of the CoE in the field of bioethics and works, inter alia, with a view to facilitating implementation of the principles of the Convention. The CDBI or any other committee designated by the Committee of Ministers or the states parties may request the European Court of Human Rights to give advisory opinions on legal questions concerning the interpretation of the Convention. Four Additional Protocols have been adopted to the Convention: on the Prohibition of Cloning Human Beings (1998), on Transplantation of Organs and Tissues of Human Origin (2002), concerning Biomedical Research (2004) and on Genetic Testing for Health Purposes (2008, not in force in March 2010).
Besides being the forum under whose aegis many effectual human rights supervisory mechanisms have been established, the CoE is actively engaged in the implementation of human rights. The human rights dimension is part of many other areas of activities in the social field, the media field (media and freedom of information), and the legal field (legal co-operation). A programme worth mentioning is the Demosthenes Programme that provides assistance to countries in Central and Eastern Europe, with the objective of strengthening institutions that promote democratic principles based on the rule of law and respect for human rights. In addition, two other programmes have been established — the Themis plan, aiming especially at training in the legal profession, and the Lode plan for the development of local democracy. Furthermore, since 1993 the CoE and the European Commission have established Joint Programmes for the benefit of several countries in Central and Eastern Europe.
The co-operation with Central and Eastern Europe has resulted in emphasis on more resources being channelled to the most recent CoE member states from these regions. This initiative aims at strengthening the democratic process in the Commonwealth of Independent States (CIS), particularly in the Russian Federation and Ukraine. The programme allows for expansion to cover other European CIS countries, such as Moldova, Belarus (candidate member state) and the Transcaucasian Republics (Armenia, Azerbaijan and Georgia). Consequently, the assistance programmes are attaining a fully pan-European dimension. To handle the everincreasing need for information to and from the organisation, the CoE has established Information and Documentation Centres (CID) in 14 capitals of Central and Eastern European countries.
The CoE undertakes numerous other activities in the field of democratisation and human rights. The Council is involved in the introduction of human rights protection mechanisms and legal system reforms aimed at adapting the legislation of the new member states to the standards of the ECHR. Other areas in which the Council is actively involved are, inter alia, the field of minority issues, gender equality, the protection of human rights in relation to rising security concerns and the battle against racism and intolerance.
6. Convention on Action against Trafficking in Human Beings and greta
The Convention on Action against Trafficking in Human Beings (ETS No. 197) was adopted by the CM in 2005 and entered into force in February 2008. The Convention is a comprehensive treaty focussing mainly on the protection of victims of trafficking and the safeguard of their rights. It also aims to prevent trafficking and to prosecute traffickers. The Convention is based on recognition of the principle that trafficking in human beings constitutes a violation of human rights and an offence to the dignity and integrity of the human being. The Convention applies to all forms of trafficking: whether national or transnational; whether or not related to organised crime; whoever the victim — women, men or children; and whatever the form of exploitation: sexual exploitation — forced labour or services, etc. The Convention is not restricted to CoE members; non-member states and the European Community may become parties.
The Convention establishes an independent monitoring mechanism, the Group of Experts on Action against Trafficking in Human Beings (GRETA), a technical body composed of independent experts empowered to control the implementation of the obligations contained in the Convention. GRETA shall have a minimum of ten and a maximum of 15 members, chosen with geographical and gender balance in mind, as well as need for multidisciplinary expertise. GRETA is to regularly draw up reports evaluating the measures taken by the states parties. Those states which do not fully respect the measures stipulated in the Convention will be required to step up their action.