CM(2008)5 add 8 January 20081
1017 Meeting, 6 February 2008
4. Human Rights
4.1 Steering Committee for Human Rights (CDDH) –
Activity report on Council of Europe action to improve the protection of human rights defenders and promote their activities
Item to be prepared by the GR-H on 29 January 2008
I. OVERVIEW OF THE ACTIVITY
1. Terms of reference
The following terms of reference were adopted by the Committee of Ministers at its 984th meeting in January 2007 for this activity:
“Under the authority of the Steering Committee for Human Rights (CDDH) and within the framework of Programme of Activities, under chapter I (Human Rights) Line of Action I.2, the Group is responsible for the implementation of Project 2004/DG2/28 ‘Substantive legal analysis of HR issues and input in the development of CoE policies on such issues’.
To this end, the Group is instructed to:
(i) explore what intergovernmental action of the Council of Europe could be envisaged to improve the protection of human rights defenders and promote their activities, in the light of the conclusions of the Colloquy ‘Protecting and Supporting Human Rights Defenders in Europe’ (13-14 November 2006);
(ii) prepare a report to be transmitted to the CDDH including, where appropriate, concrete proposals.”
The Group of Specialists on Human Rights Defenders (DH-S-DDH) devoted three meetings (14-15 November 2006, 26-27 February 2007 and 10-11 September 2007 respectively) to this question with Mr Petter WILLE (Norway) in the Chair.
The Group was composed of eleven representatives from Belgium, Croatia, Czech Republic, France, Greece, Ireland, Lithuania, Moldova, Norway, the Russian Federation and Spain.
Members of the Parliamentary Assembly, the Office of the Commissioner for Human Rights and the Conference of INGOs of the Council of Europe, the Office for Democratic Institutions and Human Rights (ODIHR), Amnesty International, the International Commission of Jurists (ICJ) and the International Federation of Human Rights (FIDH), as well as the representative of the Holy See, actively participated in the meetings.
At its 3rd meeting, an exchange of views took place with Mr Thomas HAMMARBERG, Commissioner for Human Rights of the Council of Europe and the Group discussed their draft report and a draft Committee of Ministers’ declaration. The discussions were carried out in a spirit of co-operation with a view to presenting a generally agreed text to the CDDH at their meeting in November. Concessions were made in order to be able to finalise the Group’s work and thus make a positive contribution to the state of human rights in Europe.
The adopted report and draft declaration can be found hereafter.
In transferring these texts to the Committee of Ministers, the CDDH considers the terms of reference have been fulfilled.
II. REPORT ON COUNCIL OF EUROPE ACTION TO IMPROVE THE PROTECTION OF HUMAN RIGHTS DEFENDERS AND PROMOTE THEIR ACTIVITIES
1. Human rights defenders are people who, individually or in association with others, act to promote and strive for the protection and realisation of human rights and fundamental freedoms at the national and international levels. They are defined above all by their activities, either professional or on a voluntary basis. Human rights defenders fulfil a fundamental role in the promotion and protection of human rights and fundamental freedoms. They play a vital role in efforts to implement the overall international human rights framework. They act within the domestic legal context consistent with international obligations of the states. In recognition of this, as well as the difficulties that human rights defenders face, the UN General Assembly adopted in 1998 the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (hereinafter “Declaration on Human Rights Defenders”).
2. The consensus of the UN member states in adopting the Declaration represented a clear commitment to acknowledge, promote and protect the work and rights of human rights defenders around the world. At their third summit (Warsaw, 16-17 May 2005), the heads of state and government committed the Council of Europe to “play a dynamic role in protecting the right of individuals and promoting the invaluable engagement of non-governmental organisations to actively defend human rights.”
2. Difficulties and obstacles faced by human rights defenders
3. Given the recognition by the international community of the important work of human rights defenders, the continuous reports of frequent violations committed against human rights defenders around the world are matters of serious concern. Some defenders face particular difficulties because of their identity and/or the issues they are working on.
4. The most serious violations and difficulties faced by human rights defenders are arbitrary arrests, arbitrary detention, unfair trials, arbitrary prosecution, violations of physical integrity, threats and harassment, unlawful killings and enforced disappearances. Such violations of the rights of human rights defenders also occur in member states of the Council of Europe. The factors that allow violations to occur include weaknesses in the law and legal processes, limited independence of the judiciary, lack of awareness or accountability among national and local authorities for the respect of international human rights standards and weaknesses in civil society. Special attention should be paid to human rights defenders at particular risk.
5. Freedom of expression and freedom of association are at the heart of an active civil society and are of fundamental importance for the work of human rights defenders. These rights are, however, frequently restricted in multiple ways which seriously hamper their ability to work effectively.
6. Many difficulties relate to insufficient protection of human rights defenders and regulations having a restrictive impact on the work of human rights defenders. Measures that often pose problems for defenders are, inter alia:
- difficulties in the creation and registration of human rights associations;
- burdensome and lengthy registration procedures;
- arbitrary grounds for denial of registration;
- restrictions on the registration of international NGOs;
- limits on the creation of networks;
- Iiterferences with the independence of the judiciary;
- restrictions on funding;
- restrictions on access to the media and to the Internet;
- restrictions on trade union rights;
- slow and ineffective functioning of justice;
- travel restrictions;
- other administrative obstacles.
7. In this regard, it is emphasised that no restrictions shall be placed on the exercise of the right to freedom of association other than those provided for in Article 11 para. 2 of the European Convention on Human Rights (“ECHR”). It is equally important to ensure that freedom of assembly is respected in conformity with Article 11, as well as with the Declaration on Human Rights Defenders. The importance of both freedom of association and freedom of assembly is, inter alia, to be found in the fact that they must be seen as a platform for the exercise of other rights. These are, inter alia, the right to freedom of expression, including freedom to receive and impart information and ideas, cultural rights, and the right to participate, on a non-discriminatory basis, in the conduct of public affairs, in appropriate legal forms, consistent with international human rights standards. These rights are therefore crucial for human rights defenders.
3. Measures that should be undertaken by member states
8. States have the primary obligation and responsibility to protect human rights defenders as well as to promote respect for their work. This includes creating an environment conducive to the work of human rights defenders, enabling them to establish networks with each other, with independent national human rights institutions and ombudspersons, with the media, with human rights defenders abroad and with international organisations. To this end, states should facilitate the participation of human rights defenders in training, international conferences or other activities in defence of human rights. In particular, swift measures for assistance and protection should be provided to human rights defenders in danger. This should include measures for the protection of human rights defenders in other countries, such as, where appropriate, attending and observing trials and/or, if feasible, the issuing of emergency visas. The Declaration on Human Rights Defenders is a common minimum standard that states must observe for the protection and promotion of their work.
9. Member states should endeavour to strengthen their judicial systems and ensure access to remedies for all. Member states should develop strategies and measures to protect and support human rights defenders and their work. The state shall conduct a prompt and impartial investigation or ensure that an inquiry takes place whenever there is reasonable ground to believe that a violation of human rights and fundamental freedoms affecting human rights defenders has occurred in any territory under its jurisdiction, in accordance with the European Convention on Human Rights and the Declaration on Human Rights Defenders. Perpetrators of attacks against human rights defenders should be held accountable through administrative measures and/or independent criminal proceedings.
10. Further, member states should consider giving competence and capacity to independent commissions, ombudspersons, or national human rights institutions to receive, consider and make recommendations for the resolution of complaints by human rights defenders about violations of their rights.
11. Member states should also ensure that national legislation potentially affecting human rights defenders and their activities is brought into conformity with internationally recognised human rights standards.
12. Individuals, groups and organs of society should be allowed to freely carry out activities in defence of human rights and fundamental freedoms, in accordance with international human rights standards, without having to register. If there is a requirement for registration to obtain legal personality, this should be done swiftly and without discrimination. Member states should ensure that foreign associations carrying out activities for the promotion and protection of human rights are allowed to register and function without discrimination. Where appropriate, the law should set short maximum time limits for state authorities to respond to registration applications. Decisions to deny registration must be fully reasoned and cannot be politically motivated. Criteria and procedures for registration must be clear and publicly accessible and any resulting restrictions must be confined to measures that are necessary in a democratic society.
13. Member states should be encouraged to consider signing and ratifying the European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations (ETS No. 124). Under this Convention, states parties agree to recognise the legal personality and capacity of an international non-governmental organisation as acquired in the state party where that organisation has its statutory offices.
14. Member states should give priority to human rights education and awareness-raising. To this end, member states are encouraged to translate and disseminate international human rights standards, including the Declaration on Human Rights Defenders. The wider public, especially young people, should be informed about the importance of human rights and the work of human rights defenders. In conformity with Article 15 of the Declaration on Human Rights Defenders, the state has “the responsibility to promote and facilitate the teaching of human rights and fundamental freedoms at all levels of education and to ensure that all those responsible for training lawyers, law enforcement officers, the personnel of the armed forces and public officials include appropriate elements of human rights teaching in their training programme”.
15. Member states should cooperate with all Council of Europe human rights mechanisms. They should in particular cooperate with the European Court of Human Rights in accordance with the ECHR. They should also provide adequate responses and enter into dialogue about the situation of human rights defenders when so requested by the Commissioner for Human Rights.
16. Member states should support and cooperate with the Special Representative on Human Rights Defenders as well as other relevant UN Special Procedures of the UN Human Rights Council, which are also of vital importance to international efforts to protect human rights defenders. Such cooperation should include, inter alia, consider issuing standing invitations to these procedures and the acceptance of requests for country visits as a matter of principle.
17. Member states should encourage and promote a culture of dialogue with civil society. They should in particular develop a system for consultations with civil society and national human rights institutions in their reporting to the Council of Europe monitoring bodies, as well as to the United Nations treaty monitoring bodies, and follow-up to their conclusions. Comments from civil society and national human rights institutions often contain valuable information for the consideration of reports by the treaty monitoring bodies.
18. Attacks on human rights defenders should be condemned at the highest level of the state, by other member states of the Council of Europe as well as by the relevant institutions and monitoring bodies of the Council of Europe and other international organisations.
4. Measures to be undertaken by the Council of Europe
19. The Council of Europe has an important role to play in protecting and supporting human rights defenders. It can contribute to creating an enabling environment for human rights defenders by continuing to provide information and documentation, including on relevant case law and other European standards as well as by encouraging cooperation and awareness activities between governments and civil society. The Parliamentary Assembly and the Secretary General should continue to pay special attention to the situation and work of human rights defenders.
20. As regards the role of the media in support of human rights defenders, the Council of Europe’s Steering Committee on the Media and New Communication Services (CDMC) should be invited to examine, with input from civil society and media organisations, how to promote such a role in concrete terms. The Council of Europe’s independent human rights institutions and mechanisms, such as the European Committee of Social Rights, European Committee for the Prevention of Torture, European Commission against Racism and Intolerance and the Advisory Committee of the Framework Convention for the Protection of National Minorities should be encouraged to address the issue of human rights defenders in their respective activities. The European Court of Human Rights should also be encouraged to take the specific situation of human rights defenders into account. In cases of threats to applicants (persons, non governmental organisations or groups of individuals), it is important that interim measures are applied and fully respected by the state concerned. The same applies to the need to execute fully and rapidly the judgments of the Court.
21. The Commissioner should strengthen his/her key role in protecting human rights defenders and promoting their activities. The Commissioner should continue to meet with human rights defenders and national institutions on human rights during country visits and to raise concerns with the authorities about any problems the human rights defenders may face. The Commissioner should continue to act upon information received in order to protect human rights defenders, including in situations where there is a need for urgent action by intervening with the competent authorities. The Commissioner should further develop the role and capacity of his or her Office in order to establish an effective mechanism in this regard. The Commissioner should respond in the manner he or she deems appropriate, inter alia, through discreet diplomacy and/or public statements.
22. Such strengthening of the Commissioner’s role in protecting and supporting human rights defenders would be in conformity with the Commissioner’s mandate, as defined in Resolution (99) 50. It would constitute a consolidation of the Commissioner’s actual functions of promotion and protection of human rights and fundamental freedoms. The Committee of Ministers should formally endorse this aspect of his/her activities through the adoption of a declaration on human rights defenders and their vital work (see text hereafter), in line with the commitment made by heads of state and government at the third Council of Europe summit. Such an endorsement would be particularly important in respect of the Commissioner’s role to intervene in urgent cases.
23. The Commissioner’s annual and, where appropriate, country visit reports should include developments related to human rights defenders. These reports could also, when appropriate, highlight thematic issues of relevance for human rights defenders.
5. Cooperation with other international actors
24. The Council of Europe should carry out its work on human rights defenders in close cooperation and in complementarity with other intergovernmental organisations, most importantly the OSCE, the European Union and the United Nations.
25. The cooperation with the UN should in particular aim at supporting the work of the Special Representative on Human Rights Defenders, i.a. in order to assist in implementing the mandate at the regional level. Cooperation with the OSCE/ODIHR focal point for human rights defenders and national human rights institutions should be developed, including as regards collection and analysis of information, creation of networks and capacity-building among human rights defenders. The EU Guidelines on human rights defenders and the new EU Instrument for the Promotion of Democracy and Human Rights could provide useful inspiration and support for joint initiatives on human rights defenders.
26. The Council of Europe should also establish contact and build a constructive relationship with other regional mechanisms on human rights defenders such as the existing mechanisms within the African Commission and the Inter-American Commission.
27. The Council of Europe should support the national human rights institutions network as an important tool in protecting human rights defenders and promoting their activities.
III. DRAFT DECLARATION OF THE COMMITTEE OF MINISTERS ON THE PROTECTION OF HUMAN RIGHTS DEFENDERS AND PROMOTION OF THEIR ACTIVITIES
1. The Committee of Ministers of the Council of Europe,
2. Noting the commitment made by Heads of State and Government meeting at their Third Summit in Warsaw 2005 that the Council of Europe “shall - through its various mechanisms and institutions - play a dynamic role in protecting the right of individuals and promoting the invaluable engagement of non-governmental organisations, to actively defend human rights”;
3. Recalling the United Nations Declaration on the right and responsibility of individuals, groups and organs of society to promote and protect universally recognized human rights and fundamental freedoms of 9 December 1998, and reiterating the importance of the declaration for individuals, groups and associations to promote and strive for the protection and realisation of human rights and fundamental freedoms at the national and international level;
4. Taking account of the European Union Guidelines on Human Rights Defenders of 2004 and the first review of their implementation in 2006, which contain suggestions for practical measures by EU member states and other states willing to implement them to support and protect human rights defenders;
5. Deploring that human rights defenders, including journalists, are all too often victims of violations of their rights, threats and attacks, despite efforts at both national and international levels, and considering that human rights defenders merit special attention, as such violations may indicate the general situation of human rights in the state concerned or a deterioration thereof;
6. Paying tribute to their invaluable contribution in promoting and protecting human rights and fundamental freedoms;
7. Mindful that restrictions placed on the exercise of the freedom of expression, assembly and association, which affect the work of human rights defenders in Europe, must not extend beyond those authorised by paragraphs 2 of Articles 10 and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“European Convention on Human Rights” or “ECHR”);
8. Taking account of the report of the Steering Committee for Human Rights (CDDH) on Council of Europe action to improve the protection of human rights defenders and promote their activities [document CM(2008)5 add];
9. Recalling Recommendation Rec(2007)14 on the legal status of non-governmental organisations in Europe which stipulates that NGOs should enjoy the right to freedom of expression and all other universally and regionally guaranteed rights and freedoms applicable to them;
10. Acknowledging that whereas the prime responsibility and duty to promote and protect human rights defenders lie with the state, the Council of Europe shall also contribute to creating an enabling environment for human rights defenders and protect them and their work in defending human rights;
11. Welcoming the activities that the Council of Europe Commissioner for Human Rights has already undertaken in support of human rights defenders, in particular during his country visits, and mindful that protection of human rights defenders as well as the development of an enabling environment for their activities fall within the scope of his mandate, as defined in Committee of Ministers’ Resolution (99) 50 of 7 May 1999,
1. Condemns all attacks on and violations of the rights of human rights defenders in Council of Europe member states or elsewhere, whether carried out by state agents or non-state actors.
2. Calls on member states to:
i) create an environment conducive to the work of human rights defenders, enabling individuals, groups and associations to freely carry out activities, on a legal basis, consistent with international standards, to promote and strive for the protection of human rights and fundamental freedoms without any restrictions other than those authorised by the European Convention on Human Rights;
ii) take effective measures to protect, promote and respect human rights defenders and ensure respect for their activities;
iii) strengthen their judicial systems and ensure the existence of effective remedies for those whose rights and freedoms are violated;
iv) take effective measures to prevent attacks on or harassment of human rights defenders, ensure independent and effective investigation of such acts and to hold those responsible accountable through administrative measures and/or criminal proceedings;
v) consider giving or, where appropriate, strengthening competence and capacity to independent commissions, ombudspersons, or national human rights institutions to receive, consider and make recommendations for the resolution of complaints by human rights defenders about violations of their rights;
vi) ensure that their legislation, in particular on freedom of association, peaceful assembly and expression, is in conformity with internationally recognised human rights standards and, where appropriate, seek advice from the Council of Europe in this respect;
vii) ensure the effective access of human rights defenders to the European Court of Human Rights, the European Committee of Social Rights and other human rights protection mechanisms in accordance with applicable procedures;
viii) co-operate with the Council of Europe human rights mechanisms and in particular with the European Court of Human Rights in accordance with the ECHR, as well as with the Commissioner for Human Rights by facilitating his/her visits, providing adequate responses and entering into dialogue with him/her about the situation of human rights defenders when so requested;
ix) consider signing and ratifying the European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations (ETS No. 124);
x) consider signing and ratifying the 1995 Additional Protocol to the European Social Charter and to consider recognising the right of national NGOs fulfilling the criteria mentioned therein to lodge collective complaints before the European Committee of Social Rights;
xi) provide measures for swift assistance and protection to human rights defenders in danger in third countries, such as, where appropriate, attendance at and observation of trials and/or, if feasible, the issuing of emergency visas.
3. Calls on all Council of Europe bodies and institutions, to pay special attention to issues concerning human rights defenders in their respective work. This shall include providing information and documentation, including on relevant case-law and other European standards, as well as encouraging co-operation and awareness-raising activities with civil society organisations and encouraging human rights defenders’ participation in Council of Europe activities;
4. Invites the Commissioner for Human Rights to strengthen the role and capacity of his office in order to provide strong and effective protection for human rights defenders by:
i) continuing to act upon information received from human rights defenders and other relevant sources, including ombudsmen or national human rights institutions;
ii) continuing to meet with a broad range of defenders during his country visits and to report publicly on the situation of human rights defenders;
iii) intervening, in the manner the Commissioner deems appropriate, with the competent authorities, in order to assist them in looking for solutions, in accordance with their obligations, to the problems which human rights defenders may face, especially in serious situations where there is a need for urgent action;
iv) working in close co-operation with other intergovernmental organisations and institutions, in particular the OSCE/ODHIR focal point for human rights defenders, the European Union, the UN Secretary-General’s Special Representative on Human Rights Defenders and other existing mechanisms.
5. Agrees to keep under review the question of further Council of Europe action in this field.
Note 1 This document has been classified restricted at the date of issue; it will be declassified in accordance with Resolution Res(2001)6 on access to Council of Europe documents.