Rule No. 1292 of 3 September 2010 on the protection of human dignity at the Council of Europe
The Secretary General of the Council of Europe,
CONSIDERING that the fight against harassment is one of the priority internal-policies of the Organisation;
CONSIDERING that certain aspects of Instruction No. 44 of 7 March 2002 on the protection of human dignity at the Council of Europe need revising;
CONSIDERING that the above Instruction should be replaced by a Rule;
HAVING REGARD to Articles 40, 54 and 62 of the Staff Regulations;
HAVING CONSULTED the Staff Committee, in accordance with Article 5, paragraph 3, of the Regulations on staff participation (Appendix I to the Staff Regulations);
D E C I D E S :
PART I: PROHIBITION OF HARASSMENT
Article 1 - Prohibited Conduct
1. Any form of sexual and psychological harassment in the workplace and/or in connection with work at the Council of Europe shall be prohibited as conduct infringing the dignity of men and women.
2. For the purposes of this Rule, sexual harassment is any physical or verbal conduct of a sexual nature infringing the dignity of women and men at work which is unwanted by or offensive to the recipient(s) subjected to it and which creates a humiliating or intimidating working environment for that/these person(s). The essential characteristic of sexual harassment is that it is unwanted by the recipient(s). A single incident may constitute sexual harassment if it is sufficiently serious.
3. For the purposes of this Rule, psychological harassment is any sustained, repetitive and/or systematic abusive conduct in the workplace or in connection with work in the form of behaviour, actions, gestures, spoken or written words, threats or working organisation methods which, intentionally or unintentionally, is prejudicial to a person’s personality, dignity or physical or psychological integrity or causes a deterioration in the working environment or endangers that person’s employment or creates a hostile, intimidating, degrading, humiliating or offensive environment. Psychological harassment may be the result of the behaviour of one or several persons.
4. The fact that the victim of sexual or psychological harassment is a subordinate of the perpetrator(s) is an aggravating circumstance. So is the fact that harassment continued after the perpetrator was informed that the victim had had recourse to the procedures of this Rule.
Article 2 - Field of Application
1. Everyone working at the Council of Europe, regardless of status or employment contract, has the right to effective protection by application of the provisions of this Rule against sexual and psychological harassment, irrespective of the person perpetrating such conduct.
2. The provisions of this Rule shall apply to all members of the Council of Europe Secretariat1 whether or not carrying out their functions, and wherever they are called upon to work.
3. They shall also apply to persons who are not Council of Europe Secretariat members who participate in the Organisation’s activities, wherever they may be held. These include, but are not limited to, judges of the European Court of Human Rights, the Commissioner for Human Rights, members of the Parliamentary Assembly and the Congress of Local and Regional Authorities of the Council of Europe, members of Permanent Representations, experts, consultants, and employees of outside companies.
4. They shall also apply to the Secretary General of the Council of Europe the Deputy Secretary General of the Council of Europe and the Secretary General of the Parliamentary Assembly of the Council of Europe under the special conditions of Article 10, paragraph 9.
PART II: NON-CONTENTIOUS PROCEDURE
Article 3 - Direct Discussion
Persons who consider themselves victims of sexual or psychological harassment are advised to discuss the matter directly with the other party to ensure that the situation is not the result of a misunderstanding and, should this be the case, to put an end to it. However, there is no obligation upon them to avail themselves of this possibility.
Article 4 - Recourse to the hierarchical superior(s)
A Secretariat member who considers him/herself a victim of sexual or psychological harassment may report the matter to his/her hierarchical superior(s) for assistance and advice. If the alleged perpetrator is subordinate to the above-mentioned hierarchical superior and if the alleged victim so requests, the hierarchical superior shall summon the alleged perpetrator, shall inform him/her of the matters complained of and, after listening to him/her, shall take all the necessary steps to find ways of solving the problem. These steps may require the intervention of the Head of the Major Administrative Entity, within the powers attributed to him/her.
Article 5 - Other Sources of Assistance and Advice for Secretariat Members
Secretariat members who consider themselves victims of sexual or psychological harassment may also seek the assistance and advice of:
- within their Major Administrative Entity: the human resources correspondent;
- a member of the Organisation’s medical service (doctor and nursing staff);
- within the Directorate of Human Resources of the Directorate General of Administration and Logistics: the social worker, the equality officer, the human resources advisors or the Director;
- a member of the Staff Committee.
Article 6 - Confidential Counsellors
1. Any person who considers him/herself to be a victim of sexual or psychological harassment may seek the assistance and advice of a Confidential Counsellor.
2. The Confidential Counsellors shall be appointed from within the Secretariat by the Secretary General, for a renewable term of two years, on a proposal by a panel composed of a representative of the Director of Human Resources, a representative of the Staff Committee, a representative of the network of existing Confidential Counsellors and the medical officer who sits in an advisory capacity.
3. The Confidential Counsellors shall be volunteers chosen by reason of their motivation and competencies, in particular interpersonal skills. Procedures, including an interview by the panel mentioned in paragraph 2 above, shall be put in place to assess candidates’ suitability. An effort shall be made, when proposing and appointing Confidential Counsellors, to ensure an equitable representation of both sexes and all grades and Major Administrative Entities as well as to ensure, as far as possible, that there are Confidential Counsellors in all geographical locations where the Organisation has premises. Confidential Counsellors shall receive specialised training immediately after their appointment and then at least at yearly intervals. The list of Confidential Counsellors shall be provided to Secretariat members.
4. The role of the Confidential Counsellors shall be to provide support to the persons who seek their assistance and advice, to inform them about the procedures of this Rule and, if necessary, to help them in the steps they take. Confidential Counsellors may also accompany them when they appear before the officials of Articles 4 and 5 under conditions to be agreed by all those involved. Whether it is possible for a Confidential Counsellor to appear - and under what conditions - before another official or body dealing with harassment allegations shall be determined by the applicable rules.2
5. All information given by the alleged victim to a Confidential Counsellor in that capacity shall be considered as confidential and may not be used for any purpose whatsoever without the alleged victim’s consent.
6. The Confidential Counsellors may also be contacted by anyone who has witnessed sexual or psychological harassment and who wishes to discuss it in order to understand more readily how to deal with the situation without, at this stage, necessarily wishing to reveal the names of the people concerned.
7. The Confidential Counsellors shall form a network. The network shall meet, at least once a year, to exchange information on the discharge of Confidential Counsellors’ duties under this Rule and select those who shall represent them on the panel provided for in paragraph 2 above and at the meeting provided for in Article 17. The network shall also address a general annual report on the discharge of Confidential Counsellors’ duties to the Secretary General.
Article 7 - Mediation
Persons who consider themselves victims of sexual or psychological harassment may have recourse to one of the Mediators under the conditions of the Rule on Mediation. However, recourse to the Commission against Harassment shall suspend the procedure before the Mediators.
PART III: PROCEDURE
BEFORE THE COMMISSION AGAINST HARASSMENT
Article 8 - Commission against Harassment
1. A Commission against Harassment (hereafter “Commission”) shall be established, comprising four persons and their substitutes. Two of the Commission members - and their substitutes - shall be appointed by the Secretary General and the remaining two - and their substitutes - by the Staff Committee. At least one of the persons appointed by the Secretary General, and his/her substitute, shall hold a University degree in law. The members of the Commission and their substitutes shall be appointed for a renewable term of two years. They shall receive specialised training immediately after their appointment and then at yearly intervals. The substitute members shall act when their titular members are prevented from doing so.
2. The members of the Commission shall remain in place until their successors have been appointed. Members who have been replaced shall continue to deal with such cases as they already have under consideration.
3. Members of the Commmission shall be fully independent in discharging their duties. They shall not receive any instruction. They shall not be liable to disciplinary measures as a result of any opinions expressed or advice given in the course of their duties.
4. The Secretary General shall also appoint a Secretary and his/her deputy for a renewable two-year term, who shall not be deemed to be members of the Commission.
5. The Commission shall elect one of its members as its Chairperson and draw up its rules of procedure. The rules of procedure shall conform to the terms of this Rule and to the other internal regulations of the Organisation.
6. The Commission, via its Secretary, shall produce an annual report to the Secretary General on its work, which shall be made public.
Article 9 - Complaint
1. A person who considers him/herself to be a victim of sexual or psychological harassment may submit a written complaint to the Commission where efforts to find a solution under the non-contentious procedure have failed, or where he/she deems recourse to this procedure to be inappropriate in view of the seriousness of the facts or the stage which the harassment has reached.
2. Where the non-contentious procedure has not been followed, the Commission shall decide whether this was appropriate. If the Commission considers that the non-contentious procedure should have been followed, it shall refer the case to mediation (Article 7) or ask the alleged victim to address him/herself to one of the persons under Articles 4-6. Such a referral shall only occur when it would be reasonable for the alleged victim to follow the non-contentious procedure and it shall not preclude him/her from complaining to the Commission again if the non-contentious procedure does not produce results.
Article 10 - Proceedings before the Commission
1. The proceedings before the Commission shall be adversarial, in the sense that the parties shall have full access to the material before the Commission, subject to any reasoned ruling, in writing, to the contrary by the Commission, and shall be able to comment on them and on each other’s submissions – the alleged perpetrator having the right of last reply.
2. The proceedings shall be concluded within two months from receipt of the complaint. In exceptional circumstances, the Commission may decide to extend this period by a further month, in which case it shall inform both parties – the alleged victim and the alleged perpetrator – of its reasons for having done so and the new deadline it has set itself.
3. The Secretary of the Commission shall acknowledge, within five days, receipt of the complaint and inform the alleged perpetrator and the Director of Human Resources in writing.
4. Each party shall be entitled to object to a member of the Commission. The first objection shall be automatically accepted. As regards subsequent objections, the Commission shall decide whether or not to accept them on the basis of all information available to it. Members who have to step down under this provision are replaced by their substitutes. Each party shall also be entitled to request that a member of the Organisation’s medical service and/or the social worker sit with the Commission as observers.
5. The Commission and its rapporteur(s) shall enjoy the same powers as the staff members conducting an internal inquiry under the relevant Instruction3. As regards hearing both parties and witnesses proposed by them, the Commission, or one or several of its members it has appointed as rapporteur(s) shall hear them all separately. The Commission, when hearing witnesses, shall make any arrangements that may be necessary to protect them from undue pressure, such as ensuring anonymity.
6. At any stage of the proceedings, the Commission may place itself at the disposal of the parties with a view to securing a friendly settlement. The friendly-settlement procedure shall ensure that both parties are dealt with on an equal footing and with due regard to their statutory rights and guarantees.
7. When a friendly settlement is reached, the Commission shall decide to discontinue the proceedings before it. If not, the Commission shall resume its examination of the complaint.
8. At the end of the procedure, the Commission shall express its opinion on the facts of the case, with final conclusions, which it shall transmit to the Secretary General. The Commission shall also make recommendations to the Secretary General on any measures that may be needed to ensure respect of this Rule. Depending on the seriousness of the case, the Commission may recommend that disciplinary proceedings be initiated against the staff member at fault in accordance with Articles 54 to 58 of the Staff Regulations or the temporary staff member at fault in accordance with the applicable rules. The Commission shall inform both parties and the Director of Human Resources of its final conclusions and recommendations in writing.
9. Where the Secretary General, the Deputy Secretary General or the Secretary General of the Parliamentary Assembly is the alleged perpetrator, the Commission on Harassment shall transmit the documents mentioned in the previous paragraph, to the Chair of the Committee of Ministers and the President of the Parliamentary Assembly of the Council of Europe.
10. The Commission shall render its opinions in complete independence.
PART IV: MEASURES
Article 11 - Measures ordered by the Secretary General
1. Within six weeks of the transmission of the Commission’s report, the Secretary General shall issue his/her decision on the case in writing. The decision shall contain full reasons and shall designate the authority that shall implement any measures the Secretary General orders. The Secretary General’s decision shall be communicated to both parties, the Chairperson of the Commission and the Director of Human Resources.
2. The measures that may be ordered by the Secretary General after completion of any disciplinary proceedings are those provided for in Article 54, paragraph 2 of the Staff Regulations and the applicable provisions for temporary staff members.
3. Where the sexual or psychological harassment is carried out by a person who is not a Secretariat member, the measures taken by the Secretary General to ensure the effective protection of the victim may include denying the perpetrator access to Council of Europe premises, ceasing collaboration between the Council of Europe and him/her and informing his/her employer or supervisory authority as the case may be.
4. The implementing authority shall inform the Chairperson of the Commission and the Director of Human Resources of the measures taken further to the Secretary General’s decision.
Article 12 - Interference with the Procedures
1. Disciplinary proceedings, as provided for in Articles 54 to 58 of the Staff Regulations and the applicable provisions for temporary staff members, may be initiated against a staff member or a temporary staff member who hinders the procedures provided for in this Rule with regard either to a person who, considering that s/he is a victim of sexual or psychological harassment, has used the procedures of this Rule, or with regard to any person who agrees to give evidence on behalf of the alleged victim or the alleged perpetrator.
2. Equally, disciplinary proceedings may be initiated against a staff member or a temporary staff member who, for the same purpose, proffers threats or exercises hostile behaviour.
3. Pending the taking of disciplinary measures, the Secretary General may, after hearing the Chairperson of the Commission, order any provisional measures that may be called for to protect the alleged victim or the person who agrees to give evidence. These must be suitable and strictly proportionate.
4. This article also provides protection after the closure of the procedures of this Rule.
Article 13 - Unfounded accusation
Disciplinary proceedings, as provided for in Articles 54 to 58 of the Staff Regulations and the applicable provisions for temporary staff members, may also be initiated against a staff member or a temporary staff member who knowingly makes false allegations concerning the facts underlying a complaint of sexual or psychological harassment against another person.
Article 14 - Lack of Effective Protection
Persons who complain of being victims of sexual or psychological harassment and who consider that they did not receive effective protection may lodge an administrative complaint with the Secretary General under Article 59 of the Staff Regulations.
PART V: OTHER PROVISIONS
Article 15 - Confidentiality of the procedure
All persons involved in a case of alleged sexual or psychological harassment, including the parties themselves, shall be required to respect the strictest confidentiality concerning the non-contentious procedure and the procedure before the Commission, which may have been followed for its examination.
Article 16 - Appraisal
1. When the complaint submitted to the Commission is against the alleged victim’s appraiser, the Commission’s Chairperson shall invite the alleged perpetrator’s hierarchical superior to designate - for the period until the Secretary General communicates to the parties his/her decision on the complaint - another appraiser. The alleged perpetrator’s hierarchical superior shall designate either him/herself or another Secretariat member having direct knowledge of the work of the alleged victim.
2. If the Commission’s Chairperson considers that the solution in paragraph 1 above is not appropriate, s/he shall request the Secretary General to adopt another measure. The Commission’s Chairperson must provide reasons for his/her request and propose concrete measures.
Article 17 - Exchange of Information
At least once a year, the Director of Human Resources shall convene a meeting of all officials mentioned in this Rule, as well as the Mediators, representatives of the Confidential Counsellors and the Chairperson and Secretary of the Commission, with a view to exchanging information on the application of this Rule.
Article 18 - Awareness-Raising
The Directorate of Human Resources shall ensure that all Secretariat members and those participating in the Organisation’s activities are aware of the importance attached by the Council of Europe to a working environment which is free of sexual and psychological harassment. The role of management in developing and maintaining such an environment shall be particularly stressed.
PART VI: ENTRY INTO FORCE AND TRANSITIONAL PROVISIONS
Article 19 - Entry into force
1. This Rule repeals Instruction No. 44. It shall enter into force on the first day of the month following its signature by the Secretary General.
2. All references to Instruction No. 44 contained in other instruments shall be read as making reference to this Rule.
Article 20 - Transitional Provisions
1. This Rule does not require the appointment of a new Commission and new Confidential Counsellors. Those appointed under Instruction No. 44 shall remain in place and continue exercising their duties until such time as their mandate would have expired under the relevant provisions of Instruction No. 44.
2. The term of office of one of the existing members of the Commission appointed by the Secretary General and one appointed by the Staff Committee shall be extended by a year. The members whose terms are extended shall be chosen by lot immediately after the entry into force of this Rule.
3. When the members’ substitutes are first appointed, two - one by the Secretary General and one by the Staff Committee - shall be appointed for three years. All subsequent appointments shall be for two years.
Strasbourg, 3 September 2010
The Secretary General
1 The term designates staff members under Article 1 of the Staff Regulations, temporary staff members under the relevant Rules and seconded officials under Article 1a of the Regulations on secondment of international or national, regional or local officials to the Council of Europe.
2 See e.g. the Rule on the conditions in which staff members can represent or assist other staff members before the Administrative Tribunal or accompany them in the proceedings before the Commission against Harassment or in the course of an internal enquiry and the Rule on Mediation.