27 A Regional Mechanisms. 1. European System: Council of Europe and its Institutions; European Convention for the Protection of Human Rights and Fundamental Freedoms

Thibault Weigelt

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Introduction

This chapter deals with the Council of Europe and its institutions. As a Pan-European international organization, the Council is best known for its European Convention on Human Rights and the European Court of Human Rights. However, the activities of the Council as an intergovernmental organization go beyond those of the Court and include the promotion of other values tied to liberal democracies.

This module will introduce the reader to the history of the Council of Europe before dealing with its principal institutions and bodies, namely the Parliamentary Assembly, the Secretariat of the Council, the Committee of Ministers and the Commission for Democracy through Law (Venice Commission). The European Court of Human Rights as well as the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) are the object of another module, which deals with them in detail.

Learning outcomes:

On completion of this chapter, the reader will understand:

  • The history of the Council of Europe
  • The institutional setup of the Council
  • The function of its main bodies
  • The role of specialized bodies in realizing the values and objectives of the Council

The Council of Europe

The European system for the protection of human rights is largely the result of the work of the Council of Europe (Coe or the Council hereinafter), an international organization with its headquarters in Strasbourg. Founded on 5 May 1949 in London by 10 countries initially, it has since grown to have 47 Member States as of today.

The mission of the Council of Europe is to protect human rights, uphold the rule of law and democracy and promote cooperation among Member States based on shared values. The commitment to these values is reflected in article 3 of the Statute of the Coe, which mandates that any State wishing to join the CoE must accept these values, uphold human rights and cooperate loyally with the Council. The result of article 3 is that, for many years, the members of the CoE were exclusively Western European liberal democracies.

The Council is distinct from the European Union, another European international organization composed of 27 Member States with its seat in Brussels. Although historically no country has acceded to the EU without first being a member of the CoE, the differences between both organizations are marked. The CoE, unlike the EU, retains a more intergovernmental character through its institutions and does not involve a transfer of competencies from the Member States to the CoE. Further, the CoE has faced criticism regarding the application of its membership criteria after Romania joined the Council in 1993 and has, moreover, been accused of tolerating transgressions of its existing members.

The Council of Europe was founded with a view by the founding members that future conflict in Europe could only be avoided by ensuring respect for the dignity of all human beings and sustained efforts towards fostering a mutual understanding and reconciliation in Europe. The result of this effort was the adoption by the Parliamentary Assembly of the ECHR in 1949 which came into force in later in 1953. The ECHR and its case-law have since been considered the acquis of the Council of Europe. By acquis we mean the body of law that has been ‘acquired’ over time by an international organization and which a new State, wishing to join the international organization, has to accept en bloc.

The aim to prevent conflict and foster mutual understanding is also reflected in the other significant treaties of the Council of Europe such as 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. These are dealt with in a separate module.

Principal organs and bodies of the Council

The Statute of the Council lists three statutory organs: the Parliamentary Assembly, the Committee of Ministers and the Secretariat. The Council, through dedicated Conventions and treaties, has established numerous human rights and rule of law related bodies, the most prominent of which is the European Court of Human Rights. Other treaty bodies include: the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; the Advisory Committee on the Framework Convention for the Protection of National Minorities; and the Group of Experts on Action against Trafficking in Human Beings (GRETA). These bodies are dealt with in the separate module dealing with the Conventions that established them. Finally, in 1990 the Council established the Commission for Democracy through Law (Venice Commission) with a mission to assist the transition towards democracy and the rule of law of former Soviet countries.

Parliamentary Assembly of the Council of Europe (PACE)

The Parliamentary Assembly is the deliberative body of the Council with its seat in Strasbourg and is composed of 324 representatives who are elected by the Member States’ national parliaments. The number of representatives each Member State of the Council sends to Strasbourg is predetermined by article 26 of the Statute; however, national representations should reflect the balance of political parties at the national level. Members of the Organization for Security and Cooperation in Europe (OSCE) may send delegations to Assembly debates and are invited to special meetings, provided they adhere to the OSCE’s human rights standards. Currently Canada, Mexico and Israel are observers.

Although the Assembly does not have any formal legislative power, the Statute provides for recommendations that the Assembly can address to Member States. Further, the Assembly works in nine specialized committees where it debates international affairs and prepares reports focusing on Europe. A report starts with a motion submitted by a group of representatives that, if approved, appoints a rapporteur who, then, prepares the report.

Committee of Ministers

The Committee of Ministers (the Committee) is composed by the Foreign Ministers of each Member State and is the decision-making body of the Council. It is both a governmental body, discussing national approaches to European problems, and the guardian of the fundamental values of the CoE.

This guardian function was, until the adoption of Protocol 11 to the ECHR, reflected by its competence to establish whether a Member State of the Council had violated a human right enshrined in the ECHR. Since 1998 and the entry into force of Protocol 11, the Committee is charged with supervising the execution of and compliance with judgements of the ECHR. The compliance with judgments is generally achieved through peer-pressure at the Committee’s meetings.

In addition to this supervisory mission, the Committee works in Rapporteur Groups focusing on areas such as Education, Culture, Sport, Youth and Environment; Democracy; External Relations; Human Rights; Legal Co-operation; and Social and Health Questions. Further, the Committee convenes the Council of Europe summits.

The Secretariat and Secretary-General

The activities of the Council and its organs are coordinated by the Secretariat and the Secretary-General (SG) is the highest-ranking official of the CoE. The SG is elected for five-year terms by the Member States of the CoE, with each Member State proposing one candidate. In addition to overseeing the day-to-day operations of the Council, the SG acts as the depository of all treaties of the CoE (more than 160 treaties) and monitors the implementation of the ECHR into national law.

The monitoring role of the SG is enshrined in article 52 of the ECHR. In recent years, following an increase in cases at the ECHR, the national implementation of the ECHR and the case-law of the Court has been identified during the so-called Interlaken Process as one of the causes for continued high case-loads at the ECHR and the SG’s role in this regard has been emphasized time and again. The Interlaken Process aims to reduce the case load at the ECHR by preventing human rights violations through the effective implementation of the ECHR at the national level. The role of the SG in this regard is primordial as he is charged with monitoring the implementation of the ECHR at the national level.

Moreover, the ECHR vests the SG with the power to demand an inquiry by a Member State into a specific subject. The SG uses this power rarely. The most high-profile inquiry under article 52 pertains to illegal detention center and rendition flights by the CIA on the territory of members of the CoE and violations of the ECHR. The request for clarification sent by the SG to the Member States was followed by a special rapporteur, Dick Marty, who in 2007 established with a high degree of probability that such detention centers existed in Poland and Romania for some years. The report of the special rapporteur prompted the Parliamentary Assembly to adopt a number of harshly worded resolutions. In 2017, the SG closed the inquiry into illegal CIA detention centers.

Most recently, the SG has launched an inquiry into the freedom of speech in Azerbaijan after it was noted that ‘judgments from the European Court of Human Rights have highlighted an arbitrary application of the law in Azerbaijan, notably in order to silence critical voices and limit freedom of speech’. The inquiry of the SG refers, amongst other, to the case of Ilgar Mammadov of the ECHR where it was held that the deprivation of his liberty served no other purpose than to silence him.

The Commission for Democracy through Law

The Commission for Democracy through Law, or Venice Commission, is an advisory body of the CoE established with the aim to promote democracy, the rule of law and a common constitutional heritage. The Commission was established after the demise of the Soviet Union in 1990 with an aim to provide legal advice to the new Member States of the CoE. The Commission has a broader membership than the CoE with 61 Member States, including Algeria, Brazil, Chile, Costa Rica, Israel, Kazakhstan, the Republic of Korea, Kosovo, Kyrgyzstan, Morocco, Mexico, Peru, Tunisia and the USA, in addition to the 47 CoE Member States. The individual members of the Commission are designated for four years by the Member States of the Commission and serve in their individual capacity.

The Commission works in three different areas:

  • Democratic institutions and fundamental rights
  • Justice systems
  • Elections and political representation

In these areas, the work of the Commission can be divided into different categories of assistance and advice: normative, advisory, mediation and education and standard-setting.

An example of the normative activity of the Commission is the Framework Convention for the Protection of National Minorities from 1995. The Convention is the result of a report of the Commission. The report contained a comparative analysis of international and constitutional law after the Commission noted that the problem was shared by a number of Member States of the CoE.

The advisory activity of the Commission has always been of special importance and the Commission has advised and commented regularly on constitutional amendments and developments of its members. One example is the recent Constitution of Hungary of 2011. The opinion was drafted on a request to assistance by Hungary and the Commission follows a balanced approach in giving recommendations. Here, while welcoming the efforts of Hungary to incorporate common European constitutional standards, the Commission, however, also regretted the “lack of transparency, shortcomings in the dialogue between the majority and the opposition, the insufficient opportunities for an adequate public debate, and a very tight timeframe”. The advisory function of the Commission is not limited to constitutional developments and the Commission also assist States in drafting laws of a wider constitutional importance. In this capacity, an opinion on the Draft Electoral Code of Macedonia was presented, which, amongst other, recommended “reviewing the Code to ensure that hearings on election-related cases be held in public unless the court specifically finds that there is an exception in the law to hold a particular hearing in private”. In general, the Commission aims to establish a dialogue in a nondirective manner with the concerned State, which is reflected by the fact that Member States mostly follow and incorporate recommendations of the Commission.

The Commission also assists States which are facing a constitutional crisis by mediating between the conflicting constitutional organs of a State. The opinion of the Commission on the situation in Serbia is often credited with avoiding further escalation of the constitutional crisis.

Finally, the activities of the Commission in the realm of education and promotion of European standards involves organizing seminars and issuing opinions. The so-called UniDem Seminars (short for “Universities for Democracy”) group together various legal professionals, experts, and academic in a university-setting for a weekend. For the promotion of common European standards, the Commission issued two opinions on the compatibility of the death penalty with the Constitutions of Ukraine and Albania.16 The Commission used these opinions to compare national constitutional norms with each other and within a wider European context, effectively reaching the conclusion that the death penalty is neither compatible with the national Constitutions nor with European constitutional standards. Both States abolished the death penalty afterwards.

Furthermore, the Commission has in recent years deepened its ties with Central Asian countries after the success of previous cooperation in rule of law related activities. This activity of the Commission is in the form of a joint programme with the EU entitled “EU – Central Asia Rule of Law Initiative” and has as its objective the promotion of the rule of law. The Commission, in this regard, participates in programmes aiming to provide constitutional, criminal, and administrative law training.

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Reference

  1. Kevin Boyle, New Institutions for Human Rights Protection, 1-70 (European University Institute, 2009)
  2. Johnson, T. & Mack, N., the United Nations Institutions: Critical Analysis of Their Ability to Promote and Protect International Human Rights.
  3. Alston, P. Goodman, R. International Human Rights. Oxford University Press, Oxford (2012)
  4. Moeckli, D. Shah, S. Sivakumaran, S. (eds) International Human Rights Law. Oxford University Press, Oxford, New York (2013)
  5. Oette, L. Bantekas, I. International Human Rights Law. Cambridge University Press, Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, Sao Paulo, Delhi, Mexico City (2013)