Strasbourg, 3 June 2008
Colloquy Towards stronger implementation of the European Convention on
Human Rights (ECHR) at national level
Stockholm, 9-10 June 2008, organised under the Swedish Chairmanship of the Committee
of Ministers of the Council of Europe
Theme 3 Assisting member States in implementing the Convention
The Commissioner’s role, by Thomas Hammarberg, Council of Europe Commissioner
for Human Rights
Effective work for human rights must start at home. The diplomatic exchanges
between countries as well as the international treaties and their monitoring mechanisms
are important and do encourage further efforts at national level. However, genuine
progress must be based on domestic decisions. This perspective should not be forgotten
and is a key dimension of the mandate of the Commissioner.
This mandate is spelled out in Article 3 of my terms of reference:
The Commissioner shall:
a. promote education in and awareness of human rights in the member States;
b. contribute to the promotion of the effective observance and full enjoyment
of human rights in the member States;
e. identify possible shortcomings in the law and practice of member States
concerning the compliance with human rights as embodied in the instruments of the
Council of Europe, promote the effective implementation of these standards by member
States and assist them, with their agreement, in their efforts to remedy such
shortcomings”; (emphasis added).
This mandate means that the Commissioner, beyond, the mere indication
of shortcomings, is expected to enter into dialogue with the governments of the
member states. This non-judicial institution, is not to deliver legally binding
judgments on whether or not human rights obligations have been breached. Rather,
I am asked to be a bridge between the Council of Europe and its member States. To
assist the various authorities of the member states in construing national solutions
for the implementation of the ECHR and also of the other Council of Europe human
Let me in this context mention specifically three important activities under my
I. Assistance to member states in preventing ECHR violations
Permanent contact with the various human rights actors in the member states allows
the Commissioner to screen developments on an ongoing basis. When he detects
activities or omissions that might lead to non-abidance by the ECHR, he alerts the
authorities of the member state concerned. This may encourage the national authorities
to address the issue before it becomes a breach of the Convention and is brought
before the Court (or the other monitoring mechanisms).
Aware of the Court’s case law with respect to the wide range of situations found
in our member States, I am in position to recognize shortcomings which may be problematic
vis a vis the Convention. For example, during my special mission to Armenia following
the State of Emergency in March this year, the lack of an effective and independent
investigation on the events crystallized as an obvious problem. Based on the Court’s
requirements, I highlighted the absolute need for such kind of investigation. This
analysis was welcomed by the Armenian Government and we are now discussing possible
ways of setting such independent investigation into motion.
Indeed the Commissioner can, respectfully, take the pragmatic approach of indicating,
by way of “recommendation” possible measures which he has found to work well
in other countries that had to face similar difficulties. Thus, the sort of constitutional
principles set out by the Court can be adjusted by the Commissioner in the form
of concrete suggestions. Recently, the Polish Government, following my report of
2007, has put into place a special Committee on the implementation of my recommendations
and consults me and my Office regularly to make sure my recommendations are well
understood. This is one of the most promising examples.
II. Assistance to member states in correcting situations of non compliance
with the ECHR
When the national authorities, the Court, one of the various specific monitoring
bodies or the Commissioner detect situations that have already created violations
of human rights in a country, the Commissioner can assist the authorities in correcting
While the Court cannot go beyond the object of the application before it, the
Commissioner can look at all aspects of a phenomenon. For instance, in its judgment
in the case of Hummatov v. Azerbaijan of 29 November 20071,
the Court found that the medical care provided to the applicant in the Gobustan
Prison had been inadequate and must have caused him considerable mental suffering
which had diminished his human dignity and amounted to degrading treatment. Consequently,
the Court held that there had been a violation of Article 3. During my recent visit
to Azerbaijan, I visited the Gobustan Prison and I was able to consider a number
of issues related to prisoners sentenced to life sentences, their conditions of
detention and their legal regime. In light of the Court’s principles and also of
the CPT recommendations, I tried to suggest measures to the authorities that went
beyond the issue which was considered by the Court.
From his country visits and thematic work, the Commissioner has knowledge of
the ways in which the various countries address difficulties which, after all, often
resemble one another. This allows him to bring possible avenues of solution to the
attention of the national authorities who face the need to react. Good practices
of other member States are shared via the Commissioner.
In reality the difference between prevention and corrective measures is not easy
to make. Corrective measures are part of prevention. Let me give you an example.
The Court has found quite a number of cases where it concluded to a lack of an independent
investigation into police misconduct. Having encountered this issue in many countries,
I decided to organise an expert workshop on police complaints in the end of May
in Strasbourg to find out together what can be done. Participants included representatives
of complaints mechanisms, police, prosecutors, government authorities, inter-governmental
and non-governmental organizations as well as academic experts.
Currently, there is a variety of different mechanisms for investigating police
complaints in the member states of the Council of Europe. A few countries have set
up bodies operating separately from the police. Many countries entrust public prosecutors
to lead and supervise investigations carried out by the police. Another model is
to have teams with specialized prosecutors and police officers. Several European
states are also in the process of reforming their current procedures. The purpose
of this workshop was to share experiences from the Council of Europe's member states
models and procedures, to assess their independence, effectiveness and transparency
and to discuss good practices and challenges regarding these different models.
III. Assistance to National Human Rights Structures (NHRSs) in implementing
Resolution (99) 50 expressly tasks the Commissioner to cooperate with the NHRSs
and help them perform their own duties in the best possible way2.
NHRSs are independent national bodies set up under the laws of their countries to
advise their government and other national authorities on how to best abide by human
rights standards. They have a longstanding experience of constructive dialogue with
the authorities at all levels. In line with proposals made by the Group of Wise
Persons, I have engaged in an enhanced co-operation with the NHRSs in order to foster
their awareness of the Council of Europe standards, which they may help their authorities
to implement. Also, we have set up a network between the NHRSs that allows for mutual
inspiration between these national non-judicial human rights protectors in the member
States. This is an asset when it comes, for instance, to preparing a national human
rights action plan.
Three concrete results should be mentioned in this respect:
The involvement of NHRSs in the implementation of the 2004 Recommendations
Our contact persons in the NHRSs were involved in the review of the implementation
of the 2004 Committee of Ministers Recommendations undertaken by the Steering Committee
for Human Rights (CDDH). Taking into account their workload, the Office of the Commissioner
decided to consult the NHRSs only on two of the five Recommendations, namely Recommendation
(2004)5 on the verification of the compatibility of draft laws, existing laws and
administrative practice with the standards laid down in the European Convention
on Human Rights and Recommendation (2004)6 on the improvement of domestic remedies.
These recommendations appeared to have the closest links with the mandates of most
The reaction of NHRSs was very positive. The Commissioner received 36 replies
from the Contact Persons and made a compilation of them which was transmitted to
the Committee of Experts for the Improvement of Procedures for the Protection of
Human Rights (DH-PR). This experience has proved that the Commissioner’s Office
can serve as an effective channel to inform, stimulate and collect contributions
from the NHRSs, in particular by using the new tool now put in place in the form
of the network of Contact Persons. The second positive outcome of this consultation
was that it contributed to the awareness raising of the role of NHRSs for the implementation
of the Court’s judgments.
The execution of the Court’s judgments
Some NHRSs have expressed the wish to enhance their capacity to act in the execution
of ECtHR judgments. They have asked my Office to help them fully understand their
role under Rule 93 of 2006
Rules of the Committee of Ministers for the supervision of the execution of judgments
and of the terms of friendly settlements4.
Working with them on the public documents of the CM website and on the First Annual
Report on execution, we have provided the NHRSs with information they had sought.
As a result, under the aegis of my Office experts from a number of NHRSs have discussed
good practices that might allow for the execution of certain sorts of judgments.
This, in turn, would ensure the non repetition of violations at national level
Training of NHRSs
Co-financed by the Council of Europe and the European Union the Project (referred
to as “The Peer-to-Peer Project”) consists of a work programme to be implemented
by the Office of the Commissioner for Human Rights in 2008 and 2009. It aims at
setting up an active network of independent non-judicial National Human Rights Structures
(NHRSs) compliant with the Paris Principles, with special focus on non EU-member
States. The Peer-to-Peer Project seeks to enable national structures to improve
their performances in terms of:
· raising human rights awareness in their countries;
· detecting potential or existing human rights problems;
· proceeding to efficient investigations were this is in their mandate;
· engaging in constructive dialogue with the authorities to avert or solve problems
of human rights protection;
· triggering rapid mobilisation of international partners if necessary.
The main tool of the programme will be the organisation of workshops for small
groups of practitioners from the NHRSs to convey select information on the legal
norms governing priority areas of NHRSs action and to proceed to a peer review of
relevant practices used or envisaged throughout Europe. A manual in several languages
will be prepared after each workshop for dissemination amongst NHRSs and other relevant
actors. The choice of the themes for the workshops takes due account of priorities
indicated by the NHRSs. The feedback from the first two workshops was very positive.
I do believe that when NHRSs become increasingly aware of their own means and responsibilities
as well as of good practices of colleagues abroad, they will play a more and more
proactive role in advising their authorities on how to better protect human rights
in our member States.
We are moving towards more emphasis of the principle of subsidiarity with the
Commissioner in the role of a facilitator. For this progress to be successful, State
authorities must be open minded and receptive to ideas and suggestions. So far,
I can report encouraging signals.
1 Applications nos.
9852/03 and 13413/04.
2 Article 3 c: “[T]he Commissioner
shall, wherever possible, make use of and co-operate with human rights structures
in the member States. Where such structures do not exist, the Commissioner will
encourage their establishment.” Article 3 d: “The Commissioner shall […] facilitate
the activities of national ombudsmen or similar institutions in the field of human
3 Rule 9 Communications
to the Committee of Ministers
1. The Committee of Ministers shall consider any communication from the injured
party with regard to payment of the just satisfaction or the taking of individual
2. The Committee of Ministers shall be entitled to consider any communication from
non-governmental organisations, as well as national institutions for the promotion
and protection of human rights, with regard to the execution of judgments under
Article 46, paragraph 2, of the Convention.
3. The Secretariat shall bring, in an appropriate way, any communication received
in reference to paragraph 1 of this Rule, to the attention of the Committee of Ministers.
It shall do so in respect of any communication received in reference to paragraph
2 of this Rule, together with any observations of the delegation(s) concerned provided
that the latter are transmitted to the Secretariat within five working days of having
been notified of such communication.
4 Adopted by the Committee
of Ministers on 10 May 2006 at the 964th meeting of the Ministers’ Deputies.