7 May 2013
SG/Inf (2013) 15
DEMOCRACY, HUMAN RIGHTS AND THE RULE OF LAW IN EUROPE: STRENGTHENING THE IMPACT OF THE COUNCIL OF EUROPE’S ACTIVITIES
OVERVIEW BY THE SECRETARY GENERAL
I. The European model for the protection of human rights, democracy and the rule of law
Over the past six and a half decades, Europe has built a unique and unprecedented mechanism for the protection, enforcement and promotion of human rights, democracy and the rule of law.
The distinctive character of the European model lies, in particular, in the legally binding character of its standards, in its institutional set-up and in its continent-wide geographical scope.
Over the decades, this approach has been instrumental in building and maintaining peace, democratic stability and prosperity on the European continent, creating the conditions and providing the platform for reconciliation and co-operation among all European countries.
The Council of Europe, as the guardian of the European Convention on Human Rights, is the principal operator and ultimate guarantor of the effectiveness, authority and sustainability of the European model.
The European Court of Human Rights, as the unique international court allowing individual petitions against states and issuing legally binding judgments, is the key part of an overall, mutually-reinforcing system, composed of all Council of Europe conventions, bodies and programmes, including its monitoring mechanisms. The purpose of the monitoring is to identify any shortcomings, but also good practices in the compliance with the Council of Europe standards. The monitoring also serves to indicate appropriate remedies and possible need for Council of Europe assistance in their implementation.
II. Threats to the European political, social and institutional model
The European model as we know it is under considerable strain.
Europe faces not only an economic crisis but also a crisis of institutions due to several challenges. Some of the most worrying challenges concern corruption, the rise of hate speech, discrimination against vulnerable groups, such as the Roma, the erosion of social rights and growing social exclusion.
The crisis of institutions breeds the third crisis, the crisis of confidence.
The cumulated effect of these three crises is the fourth one – the crisis of values. We have perhaps not lost our belief in them, but there are signs that some may have lost the motivation or the stamina to live up to them. This is reflected in new nationalism and regression in human rights and democratic conduct.
Europe is at the crossroads. It cannot afford to underestimate the cumulative effect of the serious threats it faces today. The notion of deep security – resulting from the continent-wide compliance with European human rights, democratic and rule of law standards – has its antipode – namely deep insecurity. This is the choice European governments are facing today.
III. The response
In order to be able to live up to the Council of Europe’s responsibilities and face new challenges, a comprehensive reform was launched in January 2010. The aim is to get a better use of resources, sharpen the focus on the most important issues and improve the impact of our various instruments through more effective assistance to member States.
The reform has been carried out in a number of steps, starting with measures to contain staff costs and the establishment of an integrated and better-structured budget and programme.
The second step involved the decentralisation of assistance programmes. To that end it was necessary to establish a stronger external presence. Having a more visible presence on the ground was also a precondition for developing a stronger partnership with other European institutions, in particular the European Union. As a result, we have witnessed a considerable increase of extra-budgetary resources.
A reform of the monitoring is a natural and indispensable next step of the reform process. The aim is to strengthen the monitoring activities, not broaden them or create new mechanisms. The objective is to better identify shortcomings in individual as well as member States’ general trends in Europe. By taking this approach, the Committee of Ministers will create a stronger, non-politicised platform for discussing follow-up and assistance programmes in member States.
The integrated reform package which includes the reform of the monitoring and a more effective follow-up must also be seen in the light of on-going efforts to ensure the European Court of Human Rights is able to deal with applications in due time. This is imperative for the credibility of the right to individual petition. The still-significant backlog of the Court reflects the shortcomings in member States. From this perspective, it is clear that the comprehensive reform of the working methods which is currently underway in the Court, coupled with the integrated reform package of the entire Organisation with an emphasis on assisting member States to undertake necessary reforms, is the key to securing a well-functioning Court.
IV. Proposals for follow-up
The Ministers’ Deputies have already held a very rich thematic debate on the subject of monitoring and its follow-up. The discussion centred on two sets of issues, namely ways to improve and better co-ordinate the work of the monitoring mechanisms, while respecting their independence and, secondly, possible modalities for improved follow-up and assistance through a better processing and use of the monitoring and evaluation data.
Two parallel lines of action need to be set in motion:
Efforts to better co-ordinate the work of different monitoring and evaluation mechanisms are already well underway. While it is important not to interfere with the independence of these bodies, a number of concrete measures have already been identified. These include the creation of a shared monitoring visits calendar for a better co-ordination of visits, including the possibility of joint visits. Other measures currently envisaged include the possibility of joint follow-up activities and the creation of larger secretarial structures serving several monitoring bodies.
We are fully aware of the fact that situations where different monitoring mechanisms are carrying out their activities and especially their country visits without any effective co-ordination and communication between them, may be putting undue pressure on the authorities of the receiving countries, causing a so-called “monitoring fatigue”. Visits and activities which are overlapping in time and sometimes even in substance are also very demanding in terms of staff and material resources. A series of pragmatic measures aimed at rationalising the functioning of these bodies without amending the legal instruments that establish them and in full respect of their autonomy is a win-win situation, bringing concrete benefits to member States, the monitoring bodies and the Council of Europe as a whole.
I shall present a comprehensive list of measures to this effect to the Ministers’ Deputies before the summer break.
Analysis of the data produced by our monitoring and evaluation mechanisms, clearly illustrates its potential to reinforce our capacity to detect and react, effectively and in time, to human rights and democracy problems in Europe.
The key objective is now to improve the relevance and the effectiveness of our activities, especially our assistance programmes, through a better processing of monitoring and evaluation data.
Where the processing of these data will indicate that problems are common to all member States, or at least to a large number of them, action should be taken in the context of the intergovernmental programme of activities of the Organisation.
Where the processing of the data will reveal problems specific to one or the other country, targeted assistance activities to address these problems will have to be put in place. For this purpose, I propose a 3-step method for processing monitoring and evaluation data:
- identification of key challenges in each member State,
- a dialogue on appropriate remedies with the member States concerned,
- and identification of possible assistance from the Council of Europe.
The objective is not to shame and blame any country for any shortcomings, but rather to establish a constructive dialogue on the basis of the findings by various monitoring and evaluation bodies.
The starting point is that none of our member States is immune to occasional difficulties in meeting the Council of Europe standards and that none of our member States would be opposed to acknowledge and respond to such difficulties.
The method is based on the following principles:
- equality of treatment and non-discrimination,
- impartiality, quality of data and reliability of sources,
- no finger-pointing of member States’ performance,
- dialogue and confidence.
I have already started a test run for an integrated processing of the monitoring and evaluation data, which you can find in the Appendix.
While this is still a very preliminary exercise, the findings nevertheless largely correspond to my proposal for priorities for the next biennial.
By offering tailor-made advice and possibly assistance to every member State, we can substantially increase not only the effectiveness but also the credibility and authority of our work. Everybody is treated equally, on the basis of merit. Willingness to be monitored and carry out concrete action to improve human rights and democratic conduct is a sign of democratic maturity and responsibility.
Against this background, I would consider of utmost importance that every upcoming Chairmanship includes in its programme for the Chairmanship also activities aimed at remedying the main challenges in its own country. This should be obligatory for every member State which wants to take the helm of the Organisation as the Chair of the Committee of Ministers.
In addition to the concrete positive impact on the situation of democracy and human rights, this would also have a highly-significant political effect. The fact that this would apply to all countries in turn, treating everyone on an equal footing, is particularly significant.
The country-by-country analysis should remain a working tool of the Secretary General and be considered, as a general rule, part of the Council of Europe internal process. The integrated analysis showing the trends at the level of all 47 member States would be extremely valuable in the process of setting and adjusting the Organisation’s priorities to the most topical and urgent problems on our continent, with clear gains in efficiency and the use of resources.
This integrated analysis could and should be made public in the form of an annual report on the state of human rights, democracy and the rule of law, which I would present to the Ministerial Session of the Committee of Ministers. Such a report would have a clear positive impact on the visibility of the Council of Europe and its action, but most of all, on the prominence of democratic and human rights values in Europe. The first such annual report could be presented to the 124th Session of the Committee of Ministers in May 2014.
V. Concluding remarks
The proposals described above have to be seen also against the background of the EU accession to the European Convention on Human Rights. Before this happens, the Council of Europe must optimise its efficiency and impact and thereby safeguard its role as the guardian of one single legal space for the whole of Europe.
In so doing, the excellent partnership with the EU can be further expanded based on respect for the integrity of the two organisations and without introducing new parallel mechanisms.
For the future peace and stability in Europe, I believe it is important to safeguard the unique added-value of the Council of Europe:
- the pan-European scope of the Organisation,
- the legally-binding character of obligations for all member States,
- the non-political nature of our monitoring and of its follow-up.
It is also important to keep in mind that protection of human rights and the rule of law require the building of a democratic culture and democratic institutions. All three pillars have to be kept on an equal footing in terms of budgetary and political priorities. What counts is the relevance of our activities and actions.
Building on these principles and continuing the reform process, the Council of Europe can continue to carry out its mandate and to contribute to greater unity in Europe.
Strong support for better follow-up to monitoring will strengthen the compliance with Council of Europe standards across the continent. A collective act of European governments against the weakening of resolve to uphold and promote the fundamental principles of post-war Europe would send a strong political signal. It would provide a concrete safeguard against further erosion of democracy, human rights and the rule of law in Europe. This, in return, is a precondition for success in contributing to bringing an end to the current crises in Europe. An investment in the values underpinned by Council of Europe standards is an investment in stability and security on our continent.
The preliminary overview of the main challenges concerning the compliance with key Council of Europe standards reflects the following main challenges.
Lack of effective supervisory mechanism regarding the funding of political parties and election campaigns; ineffective application of legislation due to lack of detection, prosecution and punishment of corruption; limited criminalisation of bribery of parliamentarians and other members of domestic assemblies, excessive immunities, money laundering not recognised as a criminal offence; too narrow definition of bribery offences excluding corrupt behaviour without an agreement, corruption in penitentiary establishments.
Discrimination against vulnerable groups, especially Roma
Absence of comprehensive anti-discrimination legislation/effective enforcement thereof, lack of reliable statistics, lack of effective participation in public affairs at local level; lack of media access, lack of access to education, segregation in education and housing, ethnically divisive or stigmatising political discourse, racism in sport and workplace, poverty and marginalisation, social exclusion compounded by prejudice and discrimination, ethnic profiling.
Ill-treatment by law enforcement officers
Unlawful detentions and lack of effective investigations of alleged ill-treatment; lack of measures to prevent inhuman and degrading treatment and to ensure accountability; severe physical ill-treatment by the police (kicks, punches to the body, blows with batons, handcuffing in stress positions, placing of plastic bags over the heads, infliction of electric shocks), ill-treatment of juveniles.
Poor or even appalling conditions of detention, including lack of adequate medical care, sometimes even for seriously ill detainees, evidence of poor or even appalling prison conditions and severe overcrowding; lack of programmes of activities for prisoners; limited access to natural light and outdoor exercise, absence of professional management of the penitentiary system.
Asylum procedures / expulsions
Detention of immigrants in poor conditions and without basic legal safeguards; shortcomings in the examination of asylum requests, including of the risks involved in case of direct or indirect return to the country of origin; excessive requirements for granting family reunion breaching rights to protection and assistance.
Freedom of expression/media
Serious dysfunctions of the domestic judicial system affecting freedom of expression; lack of proportionality in the interpretation and application of the existing statutory provisions by courts and prosecutors and judges in civil defamation proceedings; intimidation and attacks (including murder) against journalists and human rights defenders; lack of protection of journalists and conduct of effective investigations; censorship of the Internet and the blocking of websites beyond what is necessary in a democratic society.
Effective functioning of the judicial system
Excessive length of procedures; non-implementation of domestic judgments, lack of sufficient guarantees for the independence of judges, lack of efficient access to courts.