Standard-setting Through Monitoring? : The Role of Council of Europe Expert Bodies in the Development of Human rights 9789287176752, 9789287175182

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INTOLERANCE

The role of Council of Europe expert bodies in the development of human rights Renate Kicker Markus Möstl

HUMAN RIGHTS

SOCIAL RIGHTS

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Standard-setting through monitoring?

PREVENTION OF TORTURE

ANTI-RACISM

PROTECTION OF NATIONAL MINORITIES

Standard-setting Through Monitoring? : The Role of Council of Europe Expert Bodies in the Development of Human rights, Council of

Standard-setting through monitoring? The role of Council of Europe expert bodies in the development of human rights

Copyright © 2011. Council of Europe. All rights reserved.

Renate Kicker and Markus Möstl

Council of Europe Publishing

Standard-setting Through Monitoring? : The Role of Council of Europe Expert Bodies in the Development of Human rights, Council of

The opinions expressed in this work are the responsibility of the authors and do not necessarily reflect the official policy of the Council of Europe. All rights reserved. No part of this publication may be translated, reproduced or transmitted, in any form or by any means, electronic (CD-Rom, Internet, etc.) or mechanical, including photocopying, recording or any information storage or retrieval system, without the prior permission in writing from the Directorate of Communications (F-67075 Strasbourg Cedex or publishing@ coe.int).

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Cover design: Documents and Publications Production Department (SPDP), Council of Europe Layout: Jouve, Paris

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Standard-setting Through Monitoring? : The Role of Council of Europe Expert Bodies in the Development of Human rights, Council of

Contents Foreword...................................................................................................... 7

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Introduction................................................................................................ 9 Chapter I — Mechanisms for monitoring compliance with human rights in the Council of Europe................................. 15 1. The human rights order at universal, regional and national level................................................................................ 15 1.1. Standard-setting in the field of human rights............................ 17 1.2. Monitoring compliance and enforcement procedures............... 19 2. Monitoring in the Council of Europe by institutional bodies........... 25 2.1. The Secretary General................................................................. 25 2.2. The Committee of Ministers....................................................... 26 2.3. The Parliamentary Assembly...................................................... 28 2.4. The Council of Europe Commissioner for Human Rights........................................................................ 29 3. The organisational framework for specific monitoring mechanisms in the Council of Europe........................... 31 3.1. The former Directorate of Monitoring....................................... 32 3.2. The reform of the Secretariat’s structure................................... 34 4. Monitoring by independent expert bodies and hybrid systems........ 35 4.1. The four bodies chosen for detailed examination...................... 35 4.2. The Committee of Experts of the European Charter for Regional or Minority Languages (CECL)............................. 36 4.3. The Group of Experts on Action against Trafficking in Human Beings (GRETA)........................................................ 39 5. Monitoring by peer-review systems................................................... 42 5.1. The Group of States against Corruption (GRECO)................... 42 5.2. The Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism (MONEYVAL)....................... 46 6. Conclusions.......................................................................................... 50 Chapter II — Comparison of the legal framework, mandate and composition of the Council of Europe expert bodies............ 53 1. Comparing the legal framework, mandate and composition of Council of Europe expert bodies.................................................... 53 2. ACFC.................................................................................................... 55 2.1. Legal framework.......................................................................... 55 2.2. Mandate........................................................................................ 57 2.3. Composition of the expert body.................................................. 58 3

Standard-setting Through Monitoring? : The Role of Council of Europe Expert Bodies in the Development of Human rights, Council of

Standard-setting through monitoring?

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3. CPT....................................................................................................... 59 3.1. Legal framework.......................................................................... 59 3.2. Mandate........................................................................................ 61 3.3. Composition of the expert body.................................................. 63 4. ECRI..................................................................................................... 64 4.1. Legal framework.......................................................................... 64 4.2. Mandate........................................................................................ 65 4.3. Composition of the expert body.................................................. 66 5. ECSR.................................................................................................... 68 5.1. Legal framework.......................................................................... 68 5.2. Mandate........................................................................................ 70 5.3. Composition of the expert body.................................................. 70 6. Conclusions.......................................................................................... 71 Chapter III — Comparison of the monitoring procedures of the Council of Europe expert bodies........................................... 79 1. Comparing the monitoring procedures of the Council of Europe expert bodies............................................. 79 2. ACFC.................................................................................................... 82 2.1. Basic features of the monitoring procedure............................... 82 2.2. Periodicity of monitoring and reactive mechanisms.................. 83 2.3. Sources of information................................................................ 84 2.4. Publicity, transparency and confidentiality................................ 85 3. CPT....................................................................................................... 87 3.1. Basic features of the monitoring procedure............................... 87 3.2. Periodicity of monitoring and reactive mechanisms.................. 89 3.3. Sources of information................................................................ 89 3.4. Publicity, transparency and confidentiality................................ 90 4. ECRI..................................................................................................... 92 4.1. Basic features of the monitoring procedure............................... 92 4.2. Periodicity of monitoring and reactive mechanisms.................. 93 4.3. Sources of information................................................................ 93 4.4. Publicity, transparency and confidentiality................................ 94 5. ECSR.................................................................................................... 96 5.1. Basic features of the monitoring procedure............................... 96 5.2. Periodicity of monitoring and reactive mechanisms.................. 97 5.3. Sources of information................................................................ 97 5.4. Publicity, transparency and confidentiality................................ 99 6. Conclusions.......................................................................................... 99 Chapter IV — Implementation standards developed by the Council of Europe expert bodies.......................................... 105 1. Analysing the implementation standards developed by the Council of Europe expert bodies............................................. 105 2. Defining human rights implementation standards............................ 107 3. The legitimacy of implementation standards developed by Council of Europe expert bodies................................................... 110 4

Standard-setting Through Monitoring? : The Role of Council of Europe Expert Bodies in the Development of Human rights, Council of

Contents

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3.1. State consent inducing the legitimacy of implementation standards...................................................................................... 112 3.2. Authority of experts inducing the legitimacy of implementation standards...................................................... 113 3.3. Processes and procedures inducing the legitimacy of implementation standards...................................................... 114 3.4. Quality of output inducing the legitimacy of implementation standards...................................................... 115 4. Implementation standards developed by Council of Europe expert bodies................................................... 116 4.1. ACFC............................................................................................ 117 4.2. CPT............................................................................................... 121 4.3. ECRI............................................................................................. 126 4.4. ECSR............................................................................................ 131 5. Typology of implementation standards developed by Council of Europe expert bodies................................................... 135 6. Conclusions.......................................................................................... 140 Chapter V — The impact of implementation standards of Council of Europe expert bodies in member states................. 143 1. Assessing the impact of implementation standards of Council of Europe expert bodies.................................................... 143 2. The relevance of implementation standards for the development of the European human rights order............... 146 2.1. Implementation standards: non-law, soft law or hard law?................................................................................. 146 2.2. Implementation standards as an alternative to treaty-making?......................................................................... 149 3. Tracing the expert bodies’ dialogue with member states to measure the impact of implementation standards........................ 150 3.1. Analytical framework for the assessment of the expert bodies’ dialogue with member states.................... 150 3.2. Case study typology..................................................................... 162 4. The role of human rights indicators for measuring the human rights performance of Council of Europe member states................. 164 4.1. Indicators: a prerequisite for measuring the implementation of human rights.......................................... 164 4.2. Implementation standards informing the development of indicators and benchmarks........................ 170 5. Conclusions.......................................................................................... 174 Conclusions................................................................................................. 177 References.................................................................................................... 183 About the authors...................................................................................... 201 Sales agents................................................................................................. 203

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Copyright © 2011. Council of Europe. All rights reserved. Standard-setting Through Monitoring? : The Role of Council of Europe Expert Bodies in the Development of Human rights, Council of

Foreword Since its creation in the aftermath of the Second World War, the Council of Europe has set out an impressive corpus of norms designed to protect human rights and to reinforce the rule of law. Without appropriate implementation, all these texts would serve no useful purpose and would be unable to guarantee the effective respect of human rights or to achieve a greater unity among Council of Europe member states. This is why, beyond its rich normative activity, from the outset, the Council of Europe has worked on developing specific mechan­ isms to monitor the implementation of its most important legal instruments. The oldest and best known of these mechanisms is of course the mechanism established under the European Convention on Human Rights (ECHR), where disputes between individuals and states concerning human rights are entrusted to a judicial body – the European Court of Human Rights. Supervision of the execution of the Court’s judgments is assured by the Committee of Ministers of the Council of Europe.

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This unique international judicial mechanism is complemented – as far as the social and economic rights guaranteed in the European Social Charter (ESC) are concerned – by a quasi-judicial mechanism where decisions on compliance of national policies with the requirements of the ESC are made by the European Committee of Social Rights (ECSR). Over time, other monitoring mechanisms specialising in different areas were created. Together with the judicial and quasi-judicial mechanisms of the ECHR and ESC they now form a coherent system addressing violations of human rights whilst also providing early warnings of violations. Indeed, the reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), the European Commission against Racism and Intolerance (ECRI), the Group of Experts on Action against Trafficking in Human Beings (GRETA), the Group of States against Corruption (GRECO) and the Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism (MONEYVAL), or the opinions of the Advisory Committee on the Framework Convention for the Protection of National Minorities identify problems and put forward solutions before violations actually occur or become irreparable and, very importantly, before the dysfunctions increase in scale and become unmanageable. These monitoring activities therefore contribute to the needs-assessments made by national authorities to ensure practical and effective implementation of the common human rights (civil rights) standards they have accepted. This monitoring

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Standard-setting through monitoring?

and standard-setting work also provides a backdrop to the work of the Court, attempting to ensure that human rights concerns do not become court cases. This book deals with these mechanisms and bodies that are referred to as “monitoring bodies” of the Council of Europe, as distinguished from the Euro­ pean Court of Human Rights and from other mainly political institutions of the Organisation. The generic term “monitoring bodies” covers institutions that are very different in nature (ranging from quasi-judicial to merely advisory bodies). They have different legal bases (some are treaty based and some not) and different powers (some make definite findings whereas others issue advisory opinions) and operate as independent bodies of experts or as peerpressure mechanisms. These differences should not be overlooked. They are the result of concrete and binding international law commitments made by the states parties. Ignoring these differences would be tantamount to ignoring the sovereign will of the states and the careful and precise manner in which they agreed to subject their policies to international monitoring procedures. The authors make a useful and essential distinction between “normative standards” and “implementation standards”. This distinction goes to the very essence of the monitoring process in the Council of Europe and to its contribution to the “greater unity between its members”, one of the Organisation’s statutory objectives. Understandably, the monitoring bodies do not set out new standards but are required to interpret the standards already agreed, in order to facilitate their appropriate implementation in specific circumstances and avoid differences in treatment. Were it not for the monitoring bodies’ practical and concrete approach, common standards would risk being without impact when new or specific circumstances and challenges arise.

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This book constitutes a rich source of information and analysis. Those who may be less familiar with the action of Council of Europe monitoring bodies will find it essential reading on their functioning, objectives and means of action. Those who are already familiar with the bodies and their work will gain much from the authors’ analysis of present-day challenges for the monitoring bodies and their current perspectives. Above all, I hope that readers will be convinced of the fundamental acquis that these unique institutions represent for Europe thanks to their expertise, carefully chosen procedures and working methods, and also their capacity to ensure a delicate balance between international interpretation and the margin of appreciation of member states’ authorities. This acquis is particularly invaluable today when rapid technological developments, the fight against terrorism and organised crime, the financial and economic crises and the risks they entail for the cohesion of European democratic societies present so many challenges to the respect for human rights and the rule of law. Christos Giakoumopoulos Director of Human Rights, DG-I 8

Standard-setting Through Monitoring? : The Role of Council of Europe Expert Bodies in the Development of Human rights, Council of

Introduction

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This book is based on a research project which intended to undertake a comparative analysis of four selected Council of Europe expert bodies mandated to monitor the implementation of specific human rights obligations in member states.1 These bodies are the Advisory Committee on the Framework Convention for the Protection of National Minorities (ACFC), the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), the European Commission against Racism and Intolerance (ECRI), and the European Committee of Social Rights (ECSR). The practical experiences gained by one of the authors of this book as a long-standing member of one of these expert bodies, as well as the ongoing academic discussion on the role of such monitoring mechanisms in the development of the human rights order triggered the research interest. Together with a young researcher, the question was raised whether the diag­ nosed shift in the approach of international organisations from developing and adopting new legally binding human rights treaties towards focusing on compliance with obligations already entered into by states could also be observed for the Council of Europe.2 Earlier academic diagnosis implied that particular criteria required for effective international legislation, such as speed, clarity and uniformity, universality of participation, flexibility and adaptability, are only insufficiently provided by treaty law.3 This criticism of the adequacy of developing international human rights by adopting new inter­ national treaties in a rapidly changing world, as well as manifest deficiencies in the implementation of existing treaty law, formed the background of this research. The research departed from the hypothesis that expert bodies which have been established to monitor the implementation of international treaty provisions by states parties could play a more significant role than traditional approaches of developing the European human rights order. In this vein it was assumed that setting standards is, to a certain extent, inherent in each of the four expert bodies’ mandates and that the expert bodies’ monitoring activities and standards could de facto provide for a more effective 1

2 3

The research project Standard-Setting through Monitoring: The Role of Selected Expert Bodies of the Council of Europe in Developing Human Rights with Special Reference to Austria was supported by funds of the Oesterreichische Nationalbank (Anniversary Fund, project number: 13530). Cf. Mutua 2007: 548. See Neuhold 2005.

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Standard-setting through monitoring?

approach for furthering human rights, when compared to lengthy drafting procedures of new treaties. These hypotheses were backed by assessments of the expert bodies’ practices, which revealed that the four committees of the Council of Europe interpret the underlying human rights norms and principles and thus adapt them to the current human rights challenges in member states when carrying out their monitoring functions. The Council of Europe and its expert bodies might thus have a significant impact on the development of the international legal order.4 Ultimately, the standards developed by expert bodies in the process of applying and interpreting human rights obligations in a regional context may even have implications for the universal human rights order as well.

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Examining expert bodies established within the framework of the Council of Europe seemed an obvious endeavour as this international organisation provides for one of the most developed systems for the protection of human rights at a regional level and has acquainted extensive experience in the field of monitoring over the years. While the oldest monitoring mechanism, the European Committee for Social Rights, has been operating for 50 years, the second oldest expert body, the European Committee for the Prevention of Torture, celebrated its 20th anniversary in 2009. Since the establishment of these committees, other mechanisms followed with the mandate of carrying out human rights monitoring by resorting to different procedures as set out in the respective legal bases. These monitoring mechanisms were all gathered under a common roof of a Directorate of Monitoring in the Secretariat’s structure until very recently. This indicated not only the increasing role of monitoring procedures in the field of human rights in the Council of Europe, but also that there was potential for improvement in synergy and co-operation between monitoring mechanisms. To date, extensive research has been carried out in relation to human rights expert bodies in the framework of the United Nations. This research has focused on the efficiency of the working methods5 as well as the question of the legal status of standards set by these committees.6 The impact of these bodies’ standards on the dynamic development of international human rights law has also been assessed. One important finding of this research was that “treaty bodies contribute most to the interpretation, clarification and concretisation of legal norms which is, at least partly a norm creating function”.7 What is still missing is an equally thorough assessment of monitoring procedures, and in particular the standard-setting processes of expert 4

5 6 7

The effective operation of the European system of preventing torture, for instance, inspired the revision of the universal project and led to the adoption of the Optional Protocol to the UN Convention against Torture; cf. Kicker 2007: 110. See Alston and Crawford 2000. See Herndl 1994. See Klein 2005. This assessment is based on the example of the UN Human Rights Committee.

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Introduction

bodies established in the Council of Europe; an assessment that would allow for similar conclusions for these bodies as for the UN-treaty bodies. The present book aims to fill this gap. The work of the ACFC, the CPT, ECRI and the ECSR has been assessed separately in depth,8 as well as in overviews on the Council of Europe’s monitoring procedures.9 Based on these findings, the first part of the research project examined the legal basis, the mandate and the working methods of selected Council of Europe expert bodies monitoring human rights with the aim of identifying these expert bodies’ strengths and weaknesses in a comparative manner. The research method chosen included interviews and discussions with practitioners active in the Council of Europe’s former Directorate of Monitoring, and members in the four committees. As such, this allowed for the making of practice-oriented reform proposals at the end of the first part of the research.10 Our aim for the second part was to take the debate further by applying a comparative approach on the standard-setting function of the expert bodies and enquire into the influence they may exert on the European human rights order. The main results of the second part of the research are presented in this book.

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The present publication concentrates on the ACFC, the CPT, ECRI and the ECSR. The main argument for this focus is the fact that these four bodies have been active for a longer period of time than other committees of the Council of Europe and for this reason have already developed more substantial general outputs when carrying out their supervisory function. Thus, among all the mechanisms assembled within the Council of Europe, these bodies were assumed to provide for the highest potential for setting human rights standards through monitoring. Although the spotlight of this book lies on the Council of Europe, some chapters will draw attention to parallel developments observed in United Nations treaty bodies, which have a similar legal basis and monitoring mandate as well. By comparatively assessing the monitoring procedures and standard-setting activities of the four selected Council of Europe expert bodies, this book aims to contribute to the discourse on the current and future role of the Council of Europe monitoring bodies for the interpretation, clarification and realisation of human rights. Moreover, we would like to raise the wider public’s awareness as 8

For the ACFC see, among others, Council of Europe 2004; de Beco and Lantschner 2012; for the CPT see, among others, Morgan and Evans 1999; Evans and Morgan 1998; for ECRI see, among others, Hollo 2009; Kelly 2004; and for the ECSR see, among others, de Búrca and de Witte 2005; Harris and Darcy 2001; or de Schutter 2010. 9 See Drzemczewski 2001; Polakiewicz 2005; Kicker 2005; de Beco 2012. 10 For the reform proposals, see Kicker, Möstl and Lantschner 2011. Interviews with members of the secretariats of these four monitoring bodies and the Council of Europe Directorate of Monitoring were held in April 2010 and are on file with the authors. A closed conference was organised by the authors in June 2010. For the results of this meeting see Kicker, Möstl and Lantschner 2010.

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regards the diversity of monitoring activities conducted in the framework of the Council of Europe. The book, however, does not aim to provide definitive conclusions on the level of implementation of the relevant human rights standards and obligations in all Council of Europe member states’ law and practice. Such an examination would need to take into account numerous variables on the side of the states, and would have to analyse causal pathways leading to changes in state behaviour which is far beyond the scope of this publication. This book will, however, address the topic of compliance with the underlying legal obligations and standards from the perspective of the independent expert bodies and propose a method for research on a case-by-case basis. We will further draw attention to methods developed in the framework of the United Nations using indicators to measure compliance with human rights obligations by states. To evaluate the relevance of four selected Council of Europe expert bodies in the development of the European human rights order in a comprehensive manner, the book is structured as follows. The first chapter delineates the overall context of the book and familiarises the reader with the monitoring mechanisms that have been established under the framework of the Council of Europe. The objective is to offer an insight into the variety of monitoring procedures that exist, as well as the various fields of human rights under scrutiny, by dividing these mechanisms into groups according to their specific characteristics.

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Chapter II outlines the legal framework, mandate and composition of the ACFC, the CPT, ECRI and the ECSR to provide the reader with key points relevant for a comparative discussion of these committees in the chapters to come. Chapter III makes an effort to describe the diverse monitoring procedures of the four expert bodies drawing attention to their distinctive features. For this purpose, the working methods are explained in more detail for each expert body. This includes an analysis of the periodicity of monitoring activities, the reactive mechanisms the monitoring bodies may resort to in between the regular monitoring cycles, the sources of information used for the monitoring procedures, as well as a presentation of how the committees deal with the interrelated issues of publicity, transparency and confidentiality. Chapter IV focuses on the standards developed by the expert bodies in the course of the dialogue with the states parties and assesses the potential that is offered by these standards to clarify, deepen, and broaden the scope of human rights obligations for Council of Europe member states. After deliberations about the scope of the expert bodies’ mandate to set standards, the question of the legitimacy of the committees’ standards will be raised. Further, the characteristics, the role and the function that these standards have in practice are discussed in greater detail. To complement this chapter, a typology of standards is presented to categorise the diverse standards developed by the four Council of Europe expert bodies. 12

Standard-setting Through Monitoring? : The Role of Council of Europe Expert Bodies in the Development of Human rights, Council of

Introduction

Chapter V delves into the question regarding the impacts the four expert bodies and their standards have on the legal and factual human rights situation in member states. This enquiry is related to the intricate question of how to properly measure that impact. To stimulate the debate on this issue, a method for assessing the acceptance of and compliance with the expert bodies’ standards is proposed. Based on these deliberations, Chapter V also outlines a model for case studies that may be used to assess the level of implementation of human rights standards in Council of Europe member states. Furthermore, attention is drawn to the emerging methodology of measuring the human rights performance of member states through human rights indicators. Drawing on the results from the comparative research, the potential future role of the expert bodies and their standards for contributing to the further development and refinement of human rights indicators is presented. In the concluding chapter, the authors develop their thoughts on the overall theme of the book.

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The present book is addressed to practitioners, diplomats and decision makers at national level to deepen their understanding of the monitoring systems and to provide them with an update on developments currently taking place in the field of human rights. Furthermore, institutions and programmes of higher education may find this book useful to familiarise students and graduate students of human rights, public international law and international relations with facts and topical details regarding the process of standardsetting through monitoring. Finally, finding answers to the questions about the role of Council of Europe expert bodies in the development of the Euro­ pean human rights order is not solely an academic quest. Reform of the monitoring procedures and creation of synergy with related activities both continue to be on the agenda of the Council of Europe. Being aware of the potential but also the limits that are offered by monitoring mechanisms to set human rights standards is of utmost importance in this regard. We further hope that the members of the expert bodies themselves regard this book and the comparative conclusions draw therein as a stimulation for self-reflection. The authors would like to express their deep gratitude to the former Council of Europe Directorate of Monitoring, the expert members, and members of the secretariats of the four committees analysed in this book for offering their helpful practical insights and having read and checked the manuscript and for making valuable comments on it. Special thanks go to Emma Lantschner, who provided highly valuable inputs throughout the drafting period of this book, and Alexandra Hanischläger for her help with editing the book. We would like to further gratefully acknowledge the support of the Oesterreichische Nationalbank for financing the research project on which this publication is based, and express our sincere thanks to the team of Council of Europe Publishing for their dedication and co-operation in publishing this book.

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Copyright © 2011. Council of Europe. All rights reserved. Standard-setting Through Monitoring? : The Role of Council of Europe Expert Bodies in the Development of Human rights, Council of

CHAPTER I Mechanisms for monitoring compliance with human rights in the Council of Europe 1. The human rights order at universal, regional and national level

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Overview of main questions that will be addressed in this chapter Human rights order

What is the institutional framework for the promotion of human rights? Who are the relevant actors in the protection of human rights?

Standard-setting

What does standard-setting mean in the field of human rights? Which sources and documents contain human rights standards?

Monitoring

What types of procedures for enforcement and monitoring compliance with human rights standards have been established in the Council of Europe? What is the function of monitoring human rights standards?

While the focus of this book lies on the assessment of human rights monitoring mechanisms established in the framework of the Council of Europe, it nevertheless is essential to briefly outline the human rights order as a whole. The aim of this introductory chapter is to allow a better classification of the selected Council of Europe monitoring procedures as well as to describe their role and function in a more global context. The human rights order is understood here as the institutional framework, the actors and most importantly the documents containing human rights standards as well as procedures for the checking and enforcement of the compliance of these standards at national level. All in all, three layers constituting the human rights order can be distinguished, namely the universal level, certain regional levels, and last but not least the national level. Based on the institutional framework,

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Standard-setting through monitoring?

these layers can be illustrated through concentric circles with the United Nations (UN) and its specialised agencies representing the outer circle, various organisations at regional level providing for a variety of circles in the middle, and the states as the inner circles. While the universal human rights order and the regional ones coexist, and do partly refer to each other without one replacing the other, the national order is certainly the addressee of both of them. It is at state level where the human rights as developed in the framework of universal and regional organisations are to be adopted and implemented.

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The universal level of the institutional framework is the same for all sovereign states, as they are all, with one exception,11 members of the United Nations Organisation. At regional level, there are three geographically defined areas in which organisations that promote human rights have been developed. These are Europe, with the triad of the Council of Europe, the European Union (EU) and the Organization for Security and Co-operation in Europe (OSCE); the African region, with the African Union (AU); and the Inter-American region, with the Organisation of American States (OAS).12 Due to the different organisations and actors, or even the lack thereof at regional level, human rights standards vary in different regions. The same can be said for the national levels where the institutional framework for the protection and promotion of human rights is provided by the states’ constitutions and national laws. Nevertheless, the human rights standards as developed in the framework of the United Nations constitute minimum standards which may be developed into more far-reaching standards at regional level to which states are eventually bound. The national human rights standards which are determined by these international standards may, however, become even more finely tuned. Concerning the relevant actors at the different levels of the human rights order, it is important to keep in mind that the states are the main subjects of public international law and are the founders of international organisations. Consequently, states are also the main actors in international organisations. States take decisions in political bodies through their representatives who are under the directives of their national governments. Supplementing these international organisations are parliamentary bodies consisting of representatives of national parliaments or directly elected deputies. International courts with judicial functions, and independent expert bodies with monitoring and advising functions, are established by states and mandated to act on

11 The only sovereign state with general international recognition that is not a member of the United Nations is the Holy See, which enjoys, however, permanent observer status. Cf. www.un.org. 12 For the Asia-Pacific region, no specific organisational framework exists in which regional human rights instruments have been developed with corresponding monitoring mechanisms.

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Mechanisms for monitoring compliance with human rights

their behalf in clearly defined areas. International non-governmental organisations which represent the interests of civil society as a whole, or at least of specific groups, have an important role in raising awareness and setting the agenda in the field of human rights.

1.1. Standard-setting in the field of human rights Documents containing human rights standards may differ when it comes to their legal quality, varying from hard law, to what in more general terms is called “soft law”, or even non-law. While finally it will depend on the states themselves which legal effect can be attributed to these documents, the individual is in any case the final protégé.

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The main source for human rights standards are first and foremost international treaties which are developed and adopted by states’ representatives in the political bodies of international or regional organisations, and which need a formal acceptance by states through ratification. Treaty-based human rights standards create legally binding obligations for the states, and subjective rights for the individuals. It is not uncommon that a convention is preceded by a non-binding declaration or resolution with the same content issued by the political or parliamentary body of the same organisation.13 These resolutions and declarations, which may contain a catalogue of minimum standards or codes of conduct, are not per se legally binding but have a moral authority because of their issuing bodies. Mechanisms for the enforcement of treaty-based human rights may also eventually contribute to standard-setting in the field of human rights. The judgments of international courts, for example, have a legally binding force in relation to the individual case and for the sentenced state. However, certain judgments in leading cases may set a precedent and influence the interpretation and the dynamic development of the underlying human rights obligation with an effect erga omnes, which means legally binding for all states parties. International courts with jurisdiction in the field of human rights are, however, mainly established at regional levels14 while at the UN level, under some treaty regimes, independent expert bodies are mandated 13 See United Nations General Assembly 1948, which was followed by the two UN covenants, both in force since 1976: United Nations General Assembly 1966a and 1966b. Another example is United Nations General Assembly 1975, followed by United Nations General Assembly 1984. 14 These are: the European Court on Human Rights based on the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5), in force since 1959; the Inter-American Court of Human Rights, established in 1979 to enforce and interpret the provisions of the American Convention on Human Rights; and since 2004, the African Court on Human and Peoples’ Rights for the enforcement of the African Charter on Human and Peoples’ Rights.

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to examine individual complaints and express their “views” on whether a state in this specific case has violated its human rights obligations or not. In the Council of Europe, the European Committee of Social Rights (ECSR) may receive collective complaints, and takes decisions on these complaints, which is considered as a “quasi-judicial function”. Although these “views” or conclusions do not have any legally binding force, they cannot be totally ignored by the states as the issuing bodies have a certain authority which derives from their independence and professionalism. All in all, it can be said that concluding observations, recommendations, or opinions expressed by independent expert bodies, in the process of monitoring the compliance of states with their human rights obligations, enjoy authority – and because of its legal bases – legitimacy.15

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International NGOs lack the direct mandate by the states themselves but enjoy as interest groups a direct mandate by individuals, so that white and green papers and any other documents prepared by them may also gain influence on the process of standard-setting in the field of human rights. In conclusion, human rights standards may be developed by the states themselves in the framework of international and regional organisations in the form of legally binding treaties or through declarations and resolutions which may only gain legal relevance as customary law. International courts and independent expert bodies established by states to guarantee the implementation, or even enforcement, of human rights may contribute to standard-setting in a different way. This will be illustrated in detail with the example of the four Council of Europe monitoring mechanisms under examination in this book. This brief overview clearly shows that it is mainly the states themselves that firstly set human rights standards through their representatives, or by accepting standards developed by courts or monitoring bodies, and secondly are the addressees of these documents proclaiming human rights standards. At national level, human rights may be formulated within the constitution, by national laws and regulations. However, the main sources of human rights obligations derive from documents adopted at international level – universal or regional – which are then directly or indirectly accepted by states and become part of the national human rights order. These nationally applicable human rights standards may be further interpreted by national court judgments in the national enforcement procedure as well as by standard recommendations developed by national monitoring bodies. The complexity of the international human rights order therefore lies in the different levels of the organisational framework at which human rights standards are produced, and which may appear to be duplicating and overlapping. As an example, taken from the universal level and the European level, the basic formulation of civil and political human rights is laid down 15 Cf. Chapter IV.

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both in the International Covenant on Civil and Political Rights (ICCPR) and also in the European Convention on Human Rights (ECHR), and more recently in the EU Charter of Fundamental Rights. All 27 member states of the European Union are bound by these conventions which contain legally binding human rights standards in the same field. This can also be said for economic, social and cultural rights which are laid down in the International Covenant on Economic, Social and Cultural Rights (ICESCR), in the European Social Charter (ESC) and the EU Charter of Fundamental Rights.16 Another example may be given as regards non-binding human rights declarations and resolutions. Take the case of the minimum rules for the treatment of prisoners, which were not only adopted in the framework of the United Nations but also in the Council of Europe.17 It can be argued that the documents containing human rights standards at regional level – and this may hold true for the European region – are further developed and go into more detail. However, the human rights standards as adopted and accepted by states at the universal level are not replaced by the human rights standards adopted and accepted at regional level. They coexist and need to be applied and implemented equally at national level.

1.2. Monitoring compliance and enforcement procedures

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After an initial process of developing more and more human rights obligations in quantitative and qualitative terms at the universal level and at the respective regional levels, the focus of states in these organisations eventually shifted from setting new standards to developing mechanisms for surveying the implementation of the existing ones. Procedures for scrutinising the implementation of human rights standards were equally developed in the framework of the universal and regional organisations, but also by states within their national legal order. These monitoring mechanisms, whether operating at the international or at the state level, provide either for enforcement or compliance control of already accepted human rights standards, by assessing the respective national human rights situation in law and practice. Enforcement mechanisms are, by nature, weak in international law; states would have to initiate a procedure vis-à-vis non-compliant states, whilst keeping in mind the threat of reproaches against themselves. This is especially true for the state complaints system which was introduced under the First Optional Protocol to the UN International Covenant on Civil and Political Rights,18 and exists under the European Convention on

16 For further information on the different layers of the human rights order see Nowak 2003. 17 Cf. United Nations 1955; United Nations General Assembly 1988, with Committee of Ministers 2006a. 18 United Nations General Assembly 1966a.

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Human Rights.19 At European level, the state complaints system was only used a few times, at UN level not once. In contrast, individual complaints procedures which have been adopted at both universal and regional levels constituted the very breakthrough in the enforcement of human rights. It appears that the individual complaints systems which provide for legally binding judgments by an independent court, such as the European Court of Human Rights, is the most powerful one. In the UN system, the independent expert bodies established to monitor compliance with human rights obligations are also mandated to express their views on individual complaints which are, however, formally lacking a legally binding force. Therefore, the question of whether states are obliged to take action on the basis of the “views” of the Human Rights Committee, under the UN International Covenant on Civil and Political Rights on individual complaints, is a disputed issue between states and the human rights community which is still assessed in academic research.20

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Any such enforcement measures remain reactive mechanisms. They provide mainly for just satisfaction and/or compensation for the complainant after a violation of human rights has occurred. Therefore, it was necessary to place emphasis on establishing compliance monitoring procedures which are not only reactive to, but also proactive and even preventive in relation to, potential human rights violations. The notion of “monitoring” can best be defined as the use of mechanisms to watch and check the human rights situation in states for the purpose of establishing facts and deciding whether or not states are fulfilling their human rights obligations.21 In practice this means that a state is regularly surveyed in respect to its law and practice relevant in a specific field of human rights. These activities may also focus on prevention. Thus, monitoring may not only mean compliance control by observing the implementation of human rights standards, but also use of an early warning mechanism for potential future violations of human rights standards. These different types of monitoring may be conducted by political bodies, by independent expert bodies, by peer review or by hybrid systems. The respective monitoring mechanisms should observe whether a state complies with human rights standards as laid down in legally binding conventions or agreed upon by consensus. Most of these mechanisms are treaty based and mandated to monitor human rights norm obligations which are laid down in the same legally binding document establishing the monitoring procedure. More recently, so-called preventive monitoring bodies have been created.22

19 20 21 22

Article 33 of the ECHR. See Herndl 1994. Kicker, Möstl and Lantschner 2011: 463. The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT), ETS No. 126, had a pioneering role in establishing a preven-

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They do not monitor compliance with a given catalogue of standards but advise states on how to prevent the violation of a specific human rights obligation, such as the prohibition of torture. A preventive monitoring system is therefore a reinforcement of the more reactive compliance control or enforcement systems. The types of monitoring procedures vary according to the specific field of human rights under surveillance.

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To give a few examples of monitoring mechanisms as developed at universal level, the reporting procedures under the two UN Covenants – the first on Economic, Social and Cultural Rights, and the second on Civil and Political Rights – as well as the UN Convention against Torture should be named. In all three cases, independent expert bodies were established and tasked with surveying state reports on their compliance with the obligations entered into by ratifying the respective human rights conventions. All of them make “concluding observations” at the end of the monitoring cycle and thus come forward with recommendations on how to improve the level of implementation of the human rights norms as laid down in the treaties. To check whether these recommendations have been implemented, “follow-up procedures” have been introduced.23 In addition to their monitoring function, the three expert bodies may receive individual and state complaints – the latter procedure, however, is not used for reasons explained above. The individual complaints are dealt with in a quasi-judicial procedure with non-binding views given by the expert bodies. In more general terms, there are other monitoring mechanisms developed at the UN level such as the special procedures (rapporteurs), the International Criminal Court, and the Human Rights Commission. These are, however, not relevant from a comparative perspective for the analysis, undertaken in this book, of expert bodies monitoring human rights obligations in the context of the Council of Europe. At regional level, apart from the Council of Europe monitoring mechanisms which will be described in detail in this chapter, there is the European Union with its court system enforcing human rights as developed in the Council of Europe24 and more recently as laid down in the Charter of Fundamental Rights of the European Union. The introduction of specific monitoring procedures, such as an EU prison inspector, has been proposed in the European

tive monitoring mechanism in 1989. At UN level the Optional Protocol to the UN Convention against Torture (OPCAT) introduced another international preventive monitoring body but also the obligation for states to establish a national preventive mechanism (NPM). 23 For a detailed description see United Nations International Human Rights Instruments 2009. 24 Cf. Article 6 (3) of the Treaty on European Union, 2010/C 83/13. Until the accession of the European Union to the ECHR, the rights laid down in the ECHR are not directly part of European Union law but do apply indirectly as generally accepted legal principles. See Court of Justice of the European Communities 1979. Furthermore, the Charter of Fundamental Rights of the European Union was strongly inspired by the ECHR. Concerning the accession of the EU to the ECHR, see Jacqué 2011.

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Parliament but in the end was not implemented. The EU Agency for Fundamental Rights (FRA) has tasks which resemble monitoring through issuing annual reports on the state of human rights, and reports dealing with specific human rights topics. The difference from monitoring procedures as developed in the Council of Europe is, however, that the FRA is only mandated to provide information and expert knowledge on human rights, and the human rights situation in the EU member states, to the relevant EU and national bodies in order to support them in taking adequate measures to fulfil and respect their obligations resulting from Community law. However, the FRA cannot address recommendations and conclusions directly to the states concerned.25 When it comes to the OSCE – which has changed in its name from “conference” to “organisation” but has not yet formally turned into an international organisation by its own choice – no legally binding human rights obligations were defined.26 In the framework of these loose, regime-type institutions, certain monitoring procedures were introduced such as the High Commissioner for National Minorities. Academic research on the work of the commissioner came to the conclusion that the recommendations issued by this body, which do not create legally binding obligations, are nevertheless implemented by states because of their persuasive force.27

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As a more recent development, it can be observed that monitoring mechanisms were established at national level where monitoring bodies may work on a more regular basis, following directly the developments in a specific field of human rights in a given state. Recommendations for establishing national mechanisms mandated to monitor a specific human rights situation are given by several international monitoring bodies such as the CPT and ECRI.28 The Optional Protocol to the UN Convention against Torture even provides for a legal obligation to establish National Preventive Monitoring Mechanisms (NPMs).29 The concept 25 As laid down in Article 4 of Council Regulation (EC) 168/2007, its task is confined to “collect, record, analyse and disseminate relevant, objective, reliable and comparable information and data, including results from research and monitoring communicated to it by Member States, Union institutions as well as bodies, offices and agencies of the Community and the Union, research centres, national bodies, non-governmental organisations, third countries and international organisations and in particular by the competent bodies of the Council of Europe”. 26 See CSCE 1994, where the decision has been taken to change the name from CSCE to OSCE without formally establishing an organisation. 27 See Ratner 2000. 28 The CPT as well as ECRI have each requested the establishment of national monitoring mechanisms in their standard recommendations. For the CPT, see the CPT Standards, available at www.cpt.coe.int/en/docsstandards.htm, where for each place of detention the inspection by an independent authority is recommended. A similar approach is taken by the ECRI, which proposes the establishment of specialised bodies to combat racism, xenophobia, anti-Semitism and intolerance at national level in its second general policy recommendation available at: www.coe.int/t/dghl/monitoring/ecri/activities/generalthemes_EN.asp. 29 The OPCAT legally requires the state party to establish a national preventive mechanism (NPM) within the two years following ratification. The NPMs should reinforce the monitoring work of the SPT as well as the CPT.

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of establishing national human rights institutions (NHRI) developed within the EU is based on the Paris Principles.30 It is broader than that of monitoring mechanisms and includes observance of and advice on national human rights policy. However, the criteria as established in these principles relating to the independence of the acting bodies are relevant for monitoring bodies at all levels. National ombudsmen offices as well as national non-governmental organisations (NGOs) may have a monitoring function as well. National ombudsmen for example are generally granted quite an extensive power of audit in terms of far-ranging access to information.31 NGOs also play a decisive role in gathering information. Besides agenda-setting and exposing human rights deficiencies to public scrutiny, fact-finding is their most important task because monitoring mechanisms at regional and universal level would come to a standstill without being supplied with information, and being alerted by NGOs.32 The following figure provides an overview of the complex system of the human rights order reflecting the institutional framework, the actors, the various sources for human rights standards and their enforcement, as well as compliance monitoring procedures. Figure 1: The human rights order Universal level

Regional level

National level

Institutional framework

International and regional organisations United Nations Organisation and its specialised agencies

European Union, Council of Europe, Organization for Security and Co-operation in Europe

states

Actors

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Bodies involved in human rights standard-setting political bodies, parliamentary bodies, international courts, independent expert bodies, international non-governmental organisations

legislative bodies, executive bodies, judicial bodies, national human rights institutions, national NGOs

30 Since fighting human rights violations works more effectively at the national level, closest possible to the victim (rather than monitoring mechanisms at regional or universal level), the Paris Principles relate to the status of national institutions, their competences and responsibilities. For the Paris Principles, see United Nations General Assembly 1993. For the NHRIs in the European Union, the Paris Principles should be taken as the minimum standard. 31 Marie 2003: 265ff. 32 Wiseberg 2003: 355ff.

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Universal level

Regional level

National level

Sources

Documents containing human rights standards international treaties (hard law), international court judgments (binding), declarations and resolutions (soft law?), codes of conduct (moral authority) recommendations, conclusions, observations, views (professional authority)

constitution, national laws, national regulations, court decisions

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Procedures

Mechanisms for enforcement and compliance monitoring

complaints procedures, reporting systems, on-site inspections, mixed systems

civil and criminal procedures, disciplinary measures, independent inspections, complaints procedure to ombudsmen

The Council of Europe has been chosen as the institutional framework for research on monitoring mechanisms. This organisation was established in the aftermath of the Second World War, with the main goal of developing and guaranteeing democratic pluralism, human rights and the rule of law in European states. These goals are not only to be promoted, but also to be realised and implemented by the member states in order to close ranks and reinforce multilateral co-operation. Therefore, human rights protection is not an abstract principle, but a reality that has to be fought for every day anew. This is why states, as a precondition for membership of the Council of Europe, have to accept the principles of the rule of law and guarantee the enjoyment of human rights and fundamental freedoms by all persons within their jurisdictions.33 With the European Convention on Human Rights (ECHR), the ESC, and the Framework Convention for the Protection of National Minorities (FCNM), followed by a number of other human rights treaties, the Council of Europe certainly developed the most important human rights standards for the European region. While the Council of Europe has at its disposal the most powerful enforcement procedure through the European Court of Human Rights, various monitoring mechanisms were established in order to identify areas of non-compliance, provide advice, and address recommendations to its member states. These monitoring activities are 33 See Articles 3 and 4 of the Statute of the Council of Europe, ETS No. 1, 5 May 1949.

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carried out by different bodies and are based on varying procedures. However, all of them serve the purpose of ensuring the implementation of European human rights standards at national level. In this regard, it can be said that the Council of Europe’s monitoring mechanisms constitute one of the key components of this organisation. In the following, an overview is provided on various monitoring mechanisms established in the Council of Europe, which serves to clarify the position of the four monitoring bodies selected for detailed discussion in this book.

2. Monitoring in the Council of Europe by institutional bodies 2.1. The Secretary General The Secretariat, based on Article 10 of the Statute, is the administrative body of the Council of Europe. With a permanent staff of about 1 300 civil servants, the Secretariat, led by the Secretary General, supports and co-ordinates the activities of the Council’s main bodies, namely, the Committee of Ministers, the Parliamentary Assembly, and the Congress of Local and Regional Authorities. The Secretariat comprises several directorates general, each with directorates and departments or secretariats subordinated. This structure is in the process of continuing reform.

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The Secretary General is elected by the Parliamentary Assembly of the Council of Europe on the recommendation of the Committee of Ministers. He or she is responsible to this latter body for the work of the Secretariat. Apart from these administrative functions, the Secretary General has been given a monitoring mandate in relation to member states’ compliance with the obligations entered into when ratifying the Statute of the Council of Europe. According to Article 52 of the Statute, the Secretary General has the possibility of requesting from “any High Contracting Party [to] furnish an explanation of the manner in which its internal law ensures the effective implementation of any of the provisions of the Convention”.34 Since 1964, this instrument has been used eight times, in the majority of cases (five times) the Secretary General addressed all high contracting parties to report on certain articles of the ECHR. In two cases, use of this provision was made in respect of individual states, namely the Russian Federation (1999-2000), on the manner in which the ECHR was being implemented in Chechnya, and Moldova (in 2002) as a reaction to the suspension of a 34 Cf. Article 52 ECHR.

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political party on the grounds of violating rules concerning public gatherings. The last request for information under the respective provision was made in 2005, as a reaction to the allegations revealed by the press and civil society about the existence of secret CIA detention centres in Council of Europe member states.35 Apart from this monitoring power under its own responsibility, which is conferred on the Secretary General by virtue of the Council’s Statute, he or she also has an important role in supporting the Committee of Ministers in its monitoring procedure in application of its 1994 declaration.36 In this context, a monitoring department under the Directorate of Strategic Planning had been established to carry out the part of the Committee of Ministers monitoring procedure which was to be undertaken by the Secretary General.37

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2.2. The Committee of Ministers The Council of Europe was established as a classical intergovernmental organisation where the main actors are the states. Therefore, the Committee of Ministers is the executive body with the authority to act and to decide on its behalf. Together with the Parliamentary Assembly, the Committee of Ministers is the guardian of the Council’s fundamental values. Thus both bodies have monitoring functions and have developed respective procedures for surveying member states in meeting the commitments entered through membership and the ratification of various human rights instruments developed in the framework of this organisation. With the 1994 Declaration on Compliance with Commitments accepted by Member States of the Council of Europe,38 the Committee of Ministers established a mechanism that provided for country-specific monitoring as well as thematic monitoring in all Council of Europe member states. The country-specific monitoring has been used rarely, twice concerning the specific situation in the Chechen Republic of the Russian Federation, as well as post-accession monitoring concerning a limited number of member states. The thematic monitoring procedure started in 1996 and aimed to monitor member states’ commitments from the perspective of horizontal “themes” which were identified in advance. Until 2004, a total of 10 themes relating to areas of concern were examined, final monitoring reports prepared by 35 See the list of enquiries taken by the Secretary General with reference to the request, as well as to the report on the Council of Europe website: www.coe.int/hrlawpolicy. 36 Cf. Chapter II, sub-chapter 2.2, on the Committee of Ministers. 37 For the role of the Secretary General cf. Monitoring Department of the Council of Europe 2004. 38 Committee of Ministers 1994.

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the Secretary General, and decisions on follow-up actions were taken by the Committee of Ministers.39 In July 2004, the Committee of Ministers revised the procedure on thematic monitoring, emphasising the need for consistency with other Council of Europe monitoring procedures and the aim of avoiding duplication.40 However, to fully implement the principles agreed upon in 2004, such as non-duplication, cost-efficiency and streamlining the Council’s monitoring activities, the Committee of Ministers decided in 2007  to replace the annual thematic monitoring exercise by an ad hoc procedure.41 With this decision, a reform process was started with the aim of strengthening the treaty-based thematic monitoring mechanisms described below and reducing the monitoring role of the political body.

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Certainly the most important monitoring function of the Committee of Ministers is the supervision of the execution of the judgments of the European Court of Human Rights, as well as the supervision of the terms of friendly settlements.42 The procedure is based on a set of rules adopted by the Committee of Ministers43 as well as on its decisions regarding its working methods.44 With the entering into force of Protocol No. 14  to the ECHR, and the action plan adopted at the high level conference in Interlaken, the supervision system was completely reformed and divided into a “standard supervision” and an “enhanced supervision” procedure. This reform also reflects the measures taken to lift the burden of the overwhelming number of cases before the Strasbourg Court, such as the “pilot” judgment procedure with the aim of referring so-called “clone” cases back to the national justice system. Thus, the subsidiary nature of the ECHR’s supervisory mechanism, and the fundamental role the national authorities have to play in the implementation of the Convention, is also reflected in the new twin-track procedure of the Committee of Ministers.45 An important role in this procedure is played by the Department for the Execution of the Judgments of the European Court of Human Rights, established within the Directorate General of Human Rights and Legal Affairs. This department had been placed under the former Directorate of Monitoring, and can be considered as the

39 40 41 42

For the 10th report on freedom of association, see Committee of Ministers 2005. See Committee of Ministers 2004b. See Committee of Ministers 2007. Article 46 provides for the supervision of the judgments of the Court. Article 39 provides for the supervision of the terms of friendly settlements. 43 Committee of Ministers 2006c. In its rules 10  and 11, Protocol No. 14  to the ECHR is already reflected. These rules entered into force only on 1 June 2010 together with the protocol. 44 These working methods were first defined in 2004 (Committee of Ministers 2004a) and have been replaced by the 2011  working methods, Committee of Ministers 2010b and 2010d. These documents reflect the so-called “Interlaken Process”, which contains an action plan for making supervision of the executions more effective and transparent. 45 For details on the supervision of the execution of Court judgments see the respective annual reports of this body.

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executor of the Committee of Ministers’ monitoring mechanism. In this context, it is worth mentioning that a Human Rights Trust Fund (HRTF) has been established to support the implementation of the ECHR at the national level. The Department for the Execution of the Judgments of the European Court of Human Rights co-ordinates two projects within this fund, one addressing obstacles to the enforcement of domestic court decisions in a number of states. The second aims at contributing to the execution of judgments of the European Court of Human Rights by the Russian authorities. This innovative approach of proactively supporting the implementation of recommendations made by a supervisory body may serve as a model for other monitoring mechanisms in the Council of Europe.

2.3. The Parliamentary Assembly

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The Parliamentary Assembly, composed of national delegations representing the political forces in the national parliaments, is the deliberative body of the Council of Europe. According to the Statute, the Assembly shall discuss and make recommendations upon any matter referred to it by the Committee of Ministers with a request for its opinion.46 In this context, the opinion required for any invitation for accession as a member to the Council as well as any decision for suspension of membership gives the Assembly substantial political weight.47 The Parliamentary Assembly took a pioneering role as a monitoring body of the Council of Europe in the admission procedures of eastern European states after the dissolution of their authoritarian regimes in 1989.48 On the basis of the so-called “Halonen Order”49 a procedure was introduced to closely monitor the honouring of commitments entered into by the authorities of new member states. This procedure was then further developed and extended to all member states which, as the Assembly observed, are required to respect their obligations under the Statute, the ECHR, and all other conventions to which they are parties.50 Eventually, an Assembly Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee) was established to implement the new monitoring mechanism.51 While the monitoring procedures in respect to the new member states were continued, procedures common to all member states were intro-

46 See Article 23 (a) of the Statute of the Council of Europe, which refers to the Consultative Assembly, now called Parliamentary Assembly. 47 See Drzemczewski 2001. 48 See Winkler 1995. 49 Parliamentary Assembly of the Council of Europe 1993, called after its initiator, the Finnish parliamentarian Tarja Halonen. 50 See Parliamentary Assembly of the Council of Europe 1994. 51 See Parliamentary Assembly of the Council of Europe 1997.

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duced, and supplemented by a post-monitoring dialogue.52 The so-called Monitoring Committee is required to report to the Assembly once a year on general developments in monitoring procedures and to submit to it at least once every two years a report on every country monitored. These PACE reports form an important source of information for the thematic and independent monitoring mechanisms established in the Council of Europe, while in turn the Assembly pays particular attention to their respective monitoring reports. The Parliamentary Assembly’s Monitoring Committee also took the initiative of identifying ways and means of improving synergy and co-operation with these other monitoring mechanisms. For example, a hearing was organised with the chairpersons of the ECSR, the ACFC and ECRI on the rights of persons belonging to vulnerable groups.53

2.4. The Council of Europe Commissioner for Human Rights

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Following a decades-old discussion and shortly after the Council of Europe’s 50th anniversary the Committee of Ministers adopted a resolution54 establishing the institution of the Commissioner for Human Rights (hereafter, the Commissioner). The Commissioner is elected by the Parliamentary Assembly from a list of candidates drawn up by the Committee of Ministers, and constitutes an independent, impartial, and non-judicial institution of the Council of Europe mandated to promote awareness of and respect for human rights among the Council of Europe member states. The Commissioner is supported by a small secretariat and is placed directly under the Secretary General in the organisational structure, which indicates the independent role of this office. The Commissioner for Human Rights has a position like an institutional body in the structure of the Council, reporting directly to the Secretary General and covering human rights issues in general. His office is, however, independent and the working methods are very wide-reaching. Examples include on-site visits, addressing the Court, and the making public of information gathered which is cause for concern. The Commissioner is therefore commonly considered an independent monitoring mechanism of the Council of Europe.55 The reason why the Commissioner’s monitoring function is described here under the heading of institutional bodies – rather than under the other types of monitoring mechanisms characterised by its composition 52 53 54 55

See Monitoring Committee 2011. See the report on this hearing, Monitoring Committee 2009. Committee of Ministers 1999. See de Beco 2012; Lawson 2009.

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as independent expert bodies, peer review or hybrid systems – is to underline the latter’s specific monitoring mandates. The Commissioner fulfils a double task. Firstly, to promote human rights. Secondly, to ensure the enjoyment of human rights by the right holders and take care that these rights are not violated by the states parties. With this in mind, the incumbent Commissioner, Thomas Hammarberg, described his mandate as a “voice of conscience”.56 He is supposed to act as a watchdog: “whenever the Commissioner deems it appropriate”57 he may alert the organs of the Council of Europe through reports, opinions and recommendations. Thus the monitoring function of the Commissioner is part of his mandate.58 He engages in an ongoing dialogue with Council of Europe member states and carries out visits including on-site inspections. After each visit, a report is drawn up with concluding recommendations in areas where deficiencies in the human rights situation have been encountered. In follow-up visits, an assessment is made on whether the recommendations have been implemented by the state concerned and progress has been made. Apart from country reports covering the specific national human rights situation, thematic issues are addressed in “Human Rights Comments” and “Viewpoint” articles to raise awareness and to provide advice for member states.59

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Due to the broad range of activities, the Commissioner constitutes a preventive body in the field of human rights and acts as a dynamic link between the Committee of Ministers and the Parliamentary Assembly, and between the various institutions at both national and universal level. Furthermore, Article 36 ECHR provides for the participation of the Commissioner in proceedings in front of the Court, either at the invitation of the president of the Court, or on his own initiative.60 The Commissioner may also submit written contributions and participate in Court hearings. It is important to stress that, in order to avoid redundancies, the Commissioner has to respect the competences of other Council of Europe human rights instruments, especially those of treaty-based monitoring mechanisms. In this context, close co-operation with them is required so that the more general monitoring activities of the Commissioner can reinforce the more detailed assessments and recommendations issued by the specific monitoring bodies. To achieve this goal, regular meetings between the chairpersons

56 57 58 59

Council of Europe Commissioner for Human Rights 2007. Cf. Drzemczewski 2001. See the in-depth assessment of the Commissioner’s monitoring work in Sivonen 2012. For more details see the website of the Commissioner: www.coe.int/t/commissioner/ Default_en.asp. 60 Introduced by Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention, 13 May 2004, http://conventions.coe.int/Treaty/EN/Treaties/Html/194.htm.

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of the thematic monitoring bodies and the Commissioner were organised by the former Directorate of Monitoring.

3. The organisational framework for specific monitoring mechanisms in the Council of Europe

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There are different types of “specific” monitoring mechanisms established in the Council of Europe. A distinction can be made on the basis of the main actors of the monitoring activities between independent expert bodies, peerreview systems, and hybrid systems which have both components, namely state delegates and independent experts. In the following, an overview will be provided of the relevant monitoring mechanisms operating under the structure of the Secretariat General.61 There are numerous monitoring mechanisms in the field of human rights in the Council of Europe, and more to come, which have been established by conventions or by consensus of all members. Six of these human rights monitoring mechanisms are based on the work of independent expert bodies. These are the Advisory Committee on the Framework Convention for the Protection of National Minorities (ACFC), the European Commission against Racism and Intolerance (ECRI), the Committee of Experts of the European Charter for Regional or Minority Languages (CECL),62 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), the European Committee of Social Rights (ECSR), and finally the Group of Experts on Action against Trafficking in Human Beings (GRETA). This latter monitoring mechanism differs somewhat in comparison to the other five, as this system is composed of two pillars: GRETA, the independent expert body for monitoring compliance with the convention’s principles, and the Committee of the Parties, the political body for ensuring implementation of GRETA’s conclusions. Consequently, this is a hybrid system which has a technical and a political component to reinforce the impact of the results of monitoring on states parties. However, there is no involvement or influence of the political body on the monitoring procedure as carried out by the independent expert body. The Group of States against Corruption (GRECO) and the Committee of Experts on the 61 More specific information will be given here only in relation to those mechanisms which have not been chosen for in-depth research and assessment in this book. 62 The European Charter for Regional or Minority Languages has the accepted abbreviation “ECRML”. However, there is no accepted abbreviation for the corresponding committee of experts. In this book the abbreviation “CECL” will be used for the Committee of Experts of the ECRML.

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Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism (MONEYVAL) are peer-review systems where state delegates dominate the monitoring procedure. In these monitoring mechanisms there are elements of an independent expert body, namely the evaluators, who are selected because of their professional backgrounds, and are independent when carrying out their evaluation work. However, these experts are chosen by the state’s delegation, and are lacking any formal selection and election procedures which would guarantee their political independence and impartiality. Before going into more detail on the monitoring procedures, it should be explained where these mechanisms are positioned in the structure of the Secretariat, and that certain changes in this respect have taken place only recently. This may also shed some light on the important role which is attributed to the monitoring mechanisms in the Council of Europe.

3.1. The former Directorate of Monitoring

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The relevant directorate general for the promotion and protection of human rights in the structure of the Secretariat has been the former Directorate General of Human Rights and Legal Affairs, which has been transformed, as of 1 October 2011, into the Directorate General of Human Rights and Rule of Law. This most recent reorganisation has had an impact on the placement of the monitoring mechanisms and their secretariats in the Secretariat’s structure. While only in 2007, in the course of a previous organisational reform, a Directorate of Monitoring was established to create one common roof for almost all monitoring mechanisms to provide for synergy and co-operation among them, this directorate does not exist any more under the 2011 structure. The Directorate of Monitoring comprised the secretariats of all monitoring mechanisms mentioned above apart from the Committee of Experts of the European Charter for Regional or Minority Languages (CECL), plus the Department for the Execution of the Judgments of the European Court of Human Rights. For a simplified overview of the bodies under the former Directorate of Monitoring see Figure 2. Grouping these monitoring mechanisms under one common directorate, though they act in various thematic fields of human rights and follow different monitoring procedures, indicated that, from an organisational point of view, it was deemed necessary to provide support for closer co-operation between these mechanisms. The Secretary General explained at that time that establishing a Directorate of Monitoring would improve co-operation and synergy not just vertically among the monitoring mechanisms but also horizontally between the three pillars of the former Directorate General for Human Rights and Legal Affairs, namely standard-setting, monitoring, and co-operation with member states. It was also stated, at that time, that coherent and structured information on the conclusions of the monitoring mechanisms would help in deciding when new standard-setting instruments 32

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are required, or old ones need improvement. When it came to the vertical co-operation between the monitoring mechanisms, this task was addressed by the former Director of Monitoring through organising round tables with the heads of the monitoring mechanisms, as well as their executive secretaries, including the Commissioner for Human Rights to create synergy and to learn from each other. Internal strategy papers were produced in preparation and as a result of such meetings. Figure 2: The former Directorate of Monitoring (simplified)

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Directorate of Monitoring Secretariat of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)

Department of the European Commission against Racism and Intolerance and the Framework Convention for the Protection of National Minorities

Secretariat of the European Social Charter (ESC)

Secretariat of the Framework Convention for the Protection of National Minorities (ACFC)

Secretariat of the Council Europe Convention on Action against Trafficking in Human Beings (GRETA)

Secretariat of the Group of States against Corruption (GRECO)

Secretariat of the European Commission against Racism and Intolerance (ECRI)

Department for the Execution of the Judgments of the European Court of Human Rights (CM-EXEC)

Secretariat of the Committee of Experts on the Evaluation of AntiMoney Laundering Measures (MONEYVAL)

It should also be stressed here that the research project underlying this publication was strongly supported by the Head of the former Directorate of Monitoring, as well as the monitoring mechanisms themselves.63 They all participated through representatives of the monitoring bodies as well as the secretariats at the conference held by the authors of this book, to discuss strengths and weaknesses in the working methods of the four selected independent expert bodies.64 In the course of this meeting, the need for even closer co-operation between the secretariats of the ACFC and ECRI as well as the only other monitoring mechanism which at that time was not placed

63 For details of this fruitful co-operation see the references in footnote 10. 64 For the results of a conference held in Graz in June 2010 see Kicker, Möstl and Lantschner 2010.

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under the Directorate of Monitoring, namely the Committee of Experts of the European Charter for Regional or Minority Languages (CECL), was discussed. As a follow-up to this discussion, some practical ways and means of implementing this idea of closer co-operation, at least between ECRI and the ACFC, were found. Even before the recent reorganisation of the Secretariat General, ECRI and the ACFC were united with the secretariat of CECL and, thus, three monitoring mechanisms with a supplementary thematic approach and comparable monitoring procedures were brought together to provide more synergy and closer co-operation. However, the monitoring mechanism under the European Charter for Regional or Minority Languages, the CECL, was not transferred to the Directorate of Monitoring, instead the secretariats of ECRI and the ACFC were moved to the Directorate for Human Rights and Non-Discrimination of the Directorate General for Democracy. This was only one of the changes in the course of the reorganisation of the Secretariat, which led to a dissolution of the Directorate of Monitoring.

3.2. The reform of the Secretariat’s structure In Figure 3, a simplified overview is given of the current positioning of the monitoring mechanisms in the Secretariat’s structure. Figure 3: The reform of the Secretariat’s structure (simplified) Directorate General of Human Rights and Rule of Law

Directorate General of Democracy ECSR

Directorate 1 Human Rights

CPT

Directorate 1 Education and Youth

CM-EXEC

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Directorate 2 Information Society and Crime Problems

MONEYVAL GRECO

Directorate 3 Justice and Human Dignity

Directorate 2 Culture and Democratic Governance

GRETA ACFC

Directorate 4 Venice Commission

ECRI

Directorate 3 Human Rights and Non-Discrimination

CECL

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The main idea behind the latest reorganisation of the Secretariat’s structure seems to be the grouping of monitoring mechanisms and their secretariats together with other units working in similar thematic areas.65 The new structure follows substantive issues rather than functional ones. It is no more the monitoring aspect that guides the grouping but the human rights at stake. Consequently, the CPT, the ECSR as well as the Department for the Execution of the Judgments of the European Court of Human Rights remained together under the new Human Rights Directorate, headed by the former Director of Monitoring. This directorate deals further with human rights law and policy, as well as intergovernmental co-operation, and covers thus the core fields of human rights. GRECO was placed under the Information Society and Action against Crime Directorate, together with MONEYVAL. Other sections in this directorate deal with media, information society, data protection and cybercrime, and action against crime. GRETA came under the Justice and Human Dignity Directorate, in a special department for gender equality and human dignity, together with the new monitoring mechanism dealing with violence against women and domestic violence, and a unit for children’s rights. Whether this new structure will be for the better or for the worse in terms of creating synergy among the different monitoring mechanisms, and in terms of learning from each other in a more general manner, remains to be seen. It will, however, certainly contribute to closer co-operation between different fields of activities of the Council of Europe in related thematic areas.

4. Monitoring by independent expert bodies and hybrid systems

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4.1. The four bodies chosen for detailed examination Four of the monitoring mechanisms based on independent experts have been chosen for research, and will be described in detail in Chapters II and III of this book.66 The ACFC, the CPT, ECRI and the ECSR have been chosen for the main reason that these bodies have been established much longer than the other two expert bodies, and therefore have already developed a monitoring practice which allows for certain conclusions on strengths and weaknesses of their monitoring procedures. Although these four expert bodies have been set up for very different fields of protection and promotion of human rights, as well as for the prevention of human rights violations, they do have many fea65 On the website of the Council of Europe the objective of the reform of Secretariat structures is summarised as the effort “to create an internal organisation with better operational capacity also in the field, lighter structures, and strategic decision-making tools closer to the Secretary General”. 66 The other bodies are introduced only briefly in this introductory chapter.

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tures in common. While there are clear differences with regard to the subject matter, the legal status, mandate and working methods, the process of standard-setting in the course of their respective monitoring procedures appears to be comparable. Common to these four bodies, and this is also true for the other two independent expert bodies not included in the research, namely CECL and GRETA, is their task of commenting on the legal situation in a state as well as on the implementation of its laws and policies in a standardised way. In the course of this process, the four bodies chosen have already developed their own standards which are applied in a uniform manner and made public in different types of compilations. The question will be raised whether these published standard recommendations may not only give advice and guidance to states on how to implement their human rights obligations, but may also contribute to the dynamic development of human rights standards.

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The mandate, composition, and monitoring procedure of two other, notably “younger”, bodies will be briefly described here to give some insight into the ongoing trend for setting up monitoring mechanisms in the Council of Europe. These are the expert bodies established under the European Charter for Regional or Minority Languages (ECRML), as well as under the Convention on Action against Trafficking in Human Beings (GRETA). This latter body operates in tandem with a political body, the Committee of the Parties, and constitutes a hybrid mechanism. The political body only becomes involved when the monitoring work of the expert body has been concluded. Consequently, no real distinction can be made between the work of GRETA and some other independent expert bodies, such as the ECSR and the ACFC, where the Committee of Ministers also gets involved when it comes to addressing the states with recommendations as a follow-up to the monitoring results. The mandate and procedure of these “newcomers” among the independent expert bodies may already reflect certain experiences gained through the practice of the previously established mechanisms, thus learning from strengths as well as from weaknesses.

4.2. The Committee of Experts of the European Charter for Regional or Minority Languages (CECL) The European Charter for Regional or Minority Languages (ECRML)67 was opened for signature on 5 November 1992, and entered into force only in March 1998. To date, 25 member states have ratified the charter and eight have signed it.68 This convention is considered as an innovative instrument 67 Explanatory Report to the European Charter for Regional or Minority Languages, ETS No. 148. 68 Status of 14 November 2011. Cf. the list of ratifications and signatures of the Charter for Regional or Minority Languages available at http://conventions.coe.int/Treaty/Commun/ ChercheSig.asp?NT=148&CM=8&DF=&CL=ENG.

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for the protection of the European cultural heritage, as it can be regarded as the first multilateral treaty putting the focus on regional or minority languages. There are two objectives of the charter, namely protecting and promoting regional and minority languages, as well as enabling speakers of those languages to use them in private and public life. The charter stipulates a series of measures to encourage the use of regional, minority and nonterritorial languages, as well as less widely used official languages in daily educational, social or economic life, in the media, or in legal or administrative contexts. The ECRML does not, however, guarantee any individual or collective rights for speakers of a regional or minority language and does not protect linguistic minorities as such. All the provisions concentrate on the language itself and on keeping a great linguistic diversity in Europe.69 Therefore this convention must be seen as complementary to the Framework Convention for the Protection of National Minorities, the monitoring mechanism (ACFC) of which is looked into in more detail in this book. Equally important is the work of ECRI, which is also concerned with minority rights in a specific context. It is for these reasons that the monitoring mechanisms of these three conventions are now placed together under the new Directorate of Human Rights and Non-Discrimination, which also comprises issues concerning Roma and migration.

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According to the ECRML, the Committee of Ministers has the ultimate authority for the supervision of the member states compliance with the provisions of the charter, which may lead to recommendations addressed to them for necessary measures to be taken. The establishment of an expert body is foreseen in Article 16 of the convention to support the political body in this task. The requirements for the experts are independence, impartiality, professional competence as well as practical experiences in the working field of the charter.70 The members of the committee of experts are chosen by the Committee of Ministers, which selects one expert per member state, for a six-year term of office.71 The monitoring system of the ECRML is based on state reports about the policies adopted and measures taken to implement the obligations arising and selected from the provisions of the charter (“à la carte” system).72 According to Article 15 of the ECRML, the member state is obliged to issue the initial country report within the year following the ratifica69 Cf. Explanatory Report to the ECRML, paragraph 11. 70 Cf. Explanatory Report to the ECRML, paragraph 131. 71 Article 17  of the ECRML regulates that the committee of experts shall be composed of one member per party, according to which the CECL comprises 25 members following the number of member states. 72 The “à la carte” principle is provided through Article 21, which allows for reservations to paragraphs 2 to 5 of Article 7 which contain a list of states’ undertakings.

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tion of the charter, and follow-up reports shall be provided every three years.73 These reports are examined by the committee of experts, which may receive further information from users of regional and minority languages represented by bodies or associations legally established in a state, as well as through on-the-spot visits. The CECL then adopts an evaluation report which contains proposals for recommendations by the Committee of Ministers. In practice these have consistently been based on these proposals.74 It is interesting to note that the Secretary General is obliged to present to the Parliamentary Assembly a detailed report on the application of the charter every two years. Five reports have been delivered and published with the aim of keeping the Assembly and the public informed about the application of the charter as well as to enable them to exert political pressure on national governments to take appropriate measures if deemed necessary. As from 2011, in addition to the charter, summary information on the activities of the ACFC and ECRI was added to this report. From the regular academic assessment of the CECL’s work,75 it appears that there have been improvements in policies and legislations in certain member states. This is a result of the implementation of the committee’s proposals, translated into Committee of Ministers recommendations. However, it has also been observed that not all states parties responded in an equally positive manner to this specific monitoring procedure. What is so far missing is a compilation of standards as applied by the expert body in its evaluation procedure. This may well be related to the rather short period of existence – little over a decade – of this monitoring mechanism. However, this is the reason why this body has not been included in the assessment of the selected monitoring procedures in this book. Figure 4: The CECL monitoring procedure

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CECL monitoring procedure State party

Submits a periodical report to the Secretary General every three years explaining the efforts it has undertaken in order to fulfil its obligations under the charter.

73 The committee of experts provided an initial outline for periodic reports in 1998, which was supplemented by an outline for three-yearly periodical reports in 2002, and subsequently revised in 2009. 74 For an in-depth assessment of this monitoring mechanism, see Dunbar 2012. 75 See Crnic-Grotic 2008.

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CECL monitoring procedure The committee of experts examines the periodical reports and addresses, if necessary, questions to the parties to clarify the information provided by the states. Evaluates the implementation of the charter by conducting “on-the-spot” visits. CECL

Examines further information provided by NGOs or other bodies with an interest in the field of minority languages. On the basis of this information it prepares an evaluation report including proposals for recommendations which it submits to the Committee of Ministers.

Committee of Ministers

CECL

Considers the report of the committee of experts and may decide to make it public. May address recommendations to the state party advising it in bringing its policies, legislation and practice into line with the charter. After the publication of the evaluation report, the Council of Europe may decide to follow up by organising a charter implementation round table in the country concerned. During this meeting, concrete steps to effectively implement the monitoring recommendations are discussed by members of the committee of experts, the authorities of the country, and the representatives of minority associations.

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4.3. The Group of Experts on Action against Trafficking in Human Beings (GRETA) GRETA is based on the Convention on Action against Trafficking in Human Beings,76 which was adopted by the Committee of Ministers on 3 May 2005, and entered into force on 1 February 2008. It is the first European treaty dealing with the protection of victims of trafficking and the safeguarding of their rights. The focus of this convention has been reinforced by a landmark judgment of the European Court on Human Rights,77 according to which trafficking in human beings falls under the scope of the European Convention on 76 Council of Europe Convention on Action against Trafficking in Human Beings, CETS No. 197, 16 May 2005. 77 European Court of Human Rights 2010b, in which the Court ruled that trafficking in human beings fell under the scope of Article 4 of the ECHR.

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Human Rights. With the possibility of launching complaints before the Court, the preventive goal of the Convention on Action against Trafficking in Human Beings and its monitoring mechanism gains even more importance. In its Chapter VII, the anti-trafficking convention establishes a two-pillar monitoring system comprising GRETA, a “technical” body composed of independent and impartial experts from various backgrounds, as well as the Committee of the Parties, a political body composed of state representatives. These are in the case of Council of Europe member states the permanent ambassadors in the Committee of Ministers, and other state representatives in the case of non-Council of Europe states to which the convention is open.78 GRETA is now composed of 15 members79 elected by the Committee of the Parties for a four-year term, renewable once. The selection of candidates and election procedure for the members of this independent expert body have been defined by the Committee of Ministers,80 which guarantee a balanced composition of professionals needed for the monitoring work. This may reflect deficiencies encountered in this respect by other independent monitoring bodies.81 Since its monitoring activity started in just 2009 it is one of the youngest Council of Europe monitoring bodies. The first general report on GRETA’s activities has been released, giving an insight in the procedural and organisational framework and the working methods.82

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The monitoring procedure foresees monitoring cycles, the first of which has been concluded for 10 states parties. According to the Rules of Procedure for Evaluating Implementation of the Convention,83 the duration of the first evaluation round shall be four years. At the start of this first round in 2010, GRETA had chosen autonomously the provisions of the anti-trafficking convention to be monitored at this stage. In a subsequent step, GRETA sent a questionnaire to the states selected for the first year. GRETA may also ask civil society, or non-governmental organisations active in the field, for information, or may carry out a visit to the country concerned. Such country visits are being carried out to all member states evaluated within the first round. After this information collection process, GRETA draws up a confidential draft report which is sent to the state concerned in order to allow comments on it. After considering the state’s comments, GRETA draws up a final report containing an assessment of the situation, as well as conclusions which 78 As of 11 November 2011, 34 Council of Europe states have ratified the convention and nine more have signed it. No non-Council of Europe member state has so far adhered to it. Cf. list of ratifications and signatures available at http://conventions.coe.int/Treaty/ Commun/ChercheSig.asp?NT=197&CM=1&DF=&CL=ENG. 79 This is the maximum number according to Article 36 (2) of the convention. 80 See Committee of Ministers 2008. 81 See also Chapter II. 82 See Group of Experts on Action against Trafficking in Human Beings 2011. 83 Group of Experts on Action against Trafficking in Human Beings 2009.

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are conveyed to the state concerned. GRETA’s report is published together with the final comments of the authorities, as provided for by the convention. The Committee of the Parties may not modify the report but it may address recommendations to the state in order to achieve the effective implementation of GRETA’s conclusions. As of 20 December 2011, GRETA’s reports in relation to seven states evaluated in the first round have been made public. It remains to be seen how strong the reinforcement of the independent expert body’s work by the political body will be. If the conclusions drawn by GRETA and its proposals made in an appendix to the report will be taken up regularly and consistently by the Committee of the Parties, and become part of the recommendations addressed to the state concerned, the two-pillar system may well have an effect on member states’ laws and practice for the protection of human rights and prevention of violations in this field. Figure 5: GRETA monitoring procedure GRETA monitoring procedure GRETA State party

Sends a standardised questionnaire to the states parties in order to collect information. Replies to the questionnaire. If considered necessary, on-site visits are conducted or further information is requested.

GRETA

State party

If all necessary information was received, GRETA prepares a draft report and sends it to the state party. May comment on the draft report.

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Modifies the report in the light of the comments received from the state party and adopts its final report and conclusions. It sends the final report to the country concerned for possible comments.

GRETA

The final report is made public together with the state’s comments. It cannot be modified by the Committee of the Parties. The final report and state’s comments are sent to the Committee of the Parties, which may adopt recommendations in order to advise the state party on how to implement GRETA’s conclusions. It may set a date for submitting information on the progress of implementation, and promote co-operation in order to assure effective implementation. 41

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5. Monitoring by peer-review systems In contrast to the independent expert bodies which, as already revealed by their name, are independent in assessing the member states’ compliance with the respective provisions and standards, the peer-review systems follow a relatively new concept based on mutual evaluation by states. New human rights monitoring activities, such as the evaluation of anti-money-laundering measures and the financing of terrorism, as well as combating corruption, appeared to require a modification in the composition of the monitoring bodies and procedures. In these new systems, state delegates are the main actors in the monitoring procedure, reinforced by individual experts selected by the states themselves. In this way, these so-called “peer-review” procedures differ significantly from independent expert monitoring, as assessed in this book. For the reason of completion, and because certain human rights issues are obviously better addressed by states themselves, the monitoring procedures of GRECO and MONEYVAL will be briefly introduced here.

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5.1. The Group of States against Corruption (GRECO) The Group of States against Corruption (GRECO) was established on 1 May 1999 through an enlarged partial agreement of 17 founding members.84 To date, GRECO’s membership has grown to 49 member states, the 47 Council of Europe member states, plus Belarus and the United States of America. This highlights that this monitoring procedure is an open system going beyond the European borders. Each member state appoints a delegation to GRECO consisting of not more than two representatives, of which one is appointed as the head of delegation who then participates in GRECO’s plenary meetings and has the right to vote.85 Moreover, a list of experts available for taking part in GRECO’s evaluation procedure is provided by each member state. Further observer status has been granted to the OECD and the UN, represented by the United Nations Office on Drugs and Crime (UNODC), as well as the Organization of American States (OAS) and the International Anti-Corruption Academy (IACA). GRECO was established and designed to fight the increasing occurrences and threats of corruption in its various forms and of various groups, ranging 84 The Agreement establishing the Group of States against Corruption is composed of the following documents: Committee of Ministers 1998 and 1999a; and the Statute of GRECO, Appendix to Resolution (99)5. Any state which took part in the elaboration of the enlarged partial agreement may join by notifying the Secretary General of the Council of Europe. Moreover, any state which becomes party to the Criminal or Civil Law Conventions on Corruption automatically accedes to GRECO and its evaluation procedures. 85 Cf. Article 6 of the Statute of GRECO.

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from public officials and elected representatives to private enterprises and their employees. It is estimated that hundreds of billions of euros are paid in bribes every year. Therefore GRECO’s objective is to improve the capacity of its members to fight corruption by monitoring their compliance with Council of Europe anti-corruption standards86 through a dynamic process of mutual evaluation and peer pressure.87 This active peer pressure is not only an innovative but also an essential and very effective element of this monitoring mechanism, due to the fact that every member has to undertake the same process.88 GRECO further helps to identify deficiencies in national anti-corruption policies, prompting the necessary legislative, institutional and practical reforms.89 GRECO’s monitoring system is divided into two different procedures. Firstly, a “horizontal” evaluation procedure in which all members are evaluated within an evaluation round resulting in recommendations for legislative, institutional and practical reforms; and, secondly, a compliance procedure to assess the measures taken by its members to implement the recommendations made in the evaluation procedure.

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GRECO starts the evaluation procedure with the appointment of a team of experts for the evaluation of a particular state. These experts are chosen from lists submitted by the member states and come from various different professions, such as academics, government officials, practitioners, etc. It should be noted that an expert can never be chosen to evaluate his or her home country and that a new group of experts will be set up for each evaluation round depending on the topics under review.90 The examination of a state’s law and policy to combat corruption is conducted on the basis of a state reporting system, with written replies to a questionnaire, which is provided for each evaluation round.91 GRECO’s monitoring system is organised in cycles which are better known as evaluation rounds, each covering specific themes of interest. Three monitoring rounds have already been completed with the fourth starting in January 2012. The evaluation teams also carry out on-site visits, with the aim of gathering additional information in meetings with public officials and representatives of civil so86 Anti-corruption standards adopted by the Council of Europe are: Criminal Law Convention on Corruption, ETS No. 173, 27 January 1999; Civil Law Convention on Corruption, ETS No. 174, 4 November 1999; Additional Protocol to the Criminal Law Convention on Corruption, ETS No. 191, 15  May 2003; and Committee of Ministers 1997b, 2000  and 2003b. 87 Cf. Article 1 of the Statute of GRECO. 88 Lawson 2009: 43. 89 Cf. Rau 2010. 90 See the rules of procedure adopted by GRECO at its first plenary meeting (4-6 October 1999), amended by GRECO several times, most recently at its 46th plenary meeting (2226 March 2010). 91 Rule 24 of the rules of procedure.

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ciety. Subsequently, a report is drafted by the expert team and submitted to the respective state for comments. After its return, a new draft is submitted to the GRECO plenary for an in-depth examination before adoption. The evaluation report contains an expert assessment of whether or not legislation and practice in the state concerned is in compliance with the legal instruments adopted by the Council of Europe in this field. Shortcomings identified are followed by recommendations for improvements which have to be addressed by the state in a so-called situation report within 18 months.92

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The compliance procedure can be regarded as one of GRECO’s greatest strengths and is mainly considered as the groundbreaking element of the group’s monitoring procedure since it focuses on the implementation of recommendations previously made to the member state. In the case of non-compliance with GRECO’s recommendations, the re-examination of outstanding recommendations is requested within another 18  months in a new situation report. Further, GRECO adopts a compliance report indicating whether each individual recommendation has been satisfactorily implemented, partly implemented or not been implemented.93 Moreover, the compliance report contains an overall assessment of the implementation of all the recommendations in order to decide whether to terminate the compliance procedure in respect of a particular member in a given evaluation round. Finally, GRECO is entitled to issue public statements in relation to members whose response to GRECO’s recommendations has been found to be globally unsatisfac­ tory.94 This latter possibility of addressing the public, in the case of non-compliance with recommendations, as a monitoring result was perhaps modelled on the power given to the CPT, which will be described in more detail later in this book.95 As for the results of GRECO’s work, the survey provided by the Directorate General of Human Rights and Legal Affairs speaks of undeniable progress made by GRECO’s members in the fight against corruption.96 In the compliance reports, GRECO describes examples of good practices, and in the general activity reports case studies are published which indicates that GRECO is moving in the direction of contributing to standard-setting in this specific field.97 The fact that GRECO is formally consulted by the Ministers’ Deputies on recommendations of the Parliamentary Assembly in this field, to which it is giving detailed comments, further illustrates this trend.

92 93 94 95 96 97

Rule 30 of the rules of procedure refer to the situation report as “RS-report”. Cf. Rule 31 revised, paragraph 8.1, of GRECO’s Rules of Procedure. See Article 16 of GRECO’s Statute and cf. Rule 32 et seq. of its rules of procedure. See Polakiewicz 2005. See Directorate General of Human Rights and Legal Affairs of the Council of Europe 2010. Cf., for example, Group of States against Corruption 2011: 15-19.

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Figure 6: GRECO evaluation and compliance procedure GRECO evaluation procedure GRECO

A team of experts elected by GRECO collects information by sending out questionnaires and by conducting high-level talks during on-site visits.

State party

Replies to questionnaire and offers information during high-level talks.

GRECO

On the basis of this information, the group of experts drafts a report and sends it to the state party for comments.

State party

May comment on the draft report. The group of experts submits the report to all members of the plenary.

GRECO

The plenary examines and adopts the report, including conclusions and recommendations. The report may state that the legislation and practice of the country under evaluation do or do not comply with the provisions examined. Recommendations require action within 18 months. GRECO compliance procedure

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State party

Prepares a situation report on the action taken in response to GRECO’s recommendations, including supporting documents, 18 months after the adoption of the evaluation report. On the basis of the situation report, GRECO adopts a compliance report including an appraisal of each recommendation, as well as overall conclusions.

GRECO

If the state party has not or has only partly implemented the recommendations, GRECO re-examines the outstanding recommendations within another 18 months. If the state party’s response to GRECO’s recommendations is found to be “globally unsatisfactory”, GRECO may decide to apply a special (non-compliance) procedure which is based on a graduated approach and places the country concerned under closer surveillance.

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5.2. The Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism (MONEYVAL) The Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism (MONEYVAL – formerly PCR-EV) was established in 1997  by the Committee of Ministers to conduct self- and mutual assessment of anti-money laundering measures in countries which are not members of the Financial Action Task Force (FATF).98 The functioning of the committee was regulated by the general provisions of Resolution Res(2005)47 on committees and subordinate bodies, their terms of reference and working methods.99 In 2010, the Committee of Ministers adopted a statute for the committee which gave it the status of an independent monitoring mechanism.100

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According to its new statute,101 MONEYVAL is a Council of Europe monitoring body tasked with the assessment of compliance with the principal international standards to counter money laundering and the financing of terrorism. Furthermore, its task is to monitor the effectiveness of the implementation of these standards as well as making recommendations to national authorities in respect of the necessary improvements to their systems. This shall be achieved through a dynamic process of mutual evaluation, peer review and regular follow-up of its reports. The principal international standards which form the basis of the evaluation and compliance monitoring procedure are laid down in the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime adopted in 1990, which can be regarded as a landmark treaty in this field.102 The convention facilitates international co-operation and mutual assistance in investigating crime, and tracking down, seizing and confiscating the proceeds. Furthermore, it is intended to assist states in attaining a similar degree of efficiency even in the absence of full legislative harmony. It is also open to non-member states of the Council of Europe. This convention was broadened in 2005 with the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the 98 The FATF was created at the G7 summit of 1989 and is an inter-governmental body the purpose of which is the development and promotion of national and international policies to combat money laundering and terrorist financing. Cf. the website of the FATF at: www. fatf-gafi.org. Cf. Rau. and Ringguth 2006. 99 The last set of specific rules of procedure and terms of reference were issued for the period 2008-10. 100 A similar development had been taken by the European Commission against Racism and Intolerance which will be dealt with in more detail in this book. 101 Committee of Ministers 2010c. 102 Cf. the full text of the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, ETS No. 198, 16 May 2005.

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Financing of Terrorism and is the first international treaty covering both the prevention and the control of money laundering as well as the financing of terrorism.103 There are 30  states that are members of MONEYVAL which are subject to its evaluation, including two non-Council of Europe states, namely the Vatican and Israel.104 Each member of MONEYVAL is entitled to appoint up to three representatives, who make up a delegation. Representatives shall possess particular knowledge and experience of their domestic Anti-Money Laundering/Combating the Financing of Terrorism (AML/CFT) regime. The Financial Action Task Force (FATF), a system which is closely related to the work in this specific field, is also represented with two delegations from among two members of the FATF. There are also temporary members and observers in MONEYVAL. The monitoring system of MONEYVAL is conducted from beginning to end by evaluation teams which are composed of experts. There exists a pool of evaluators who receive training in seminars organised by the Secretariat of MONEYVAL. For each country, the monitoring of evaluators is selected and proposed by the secretariat. An equal balance needs to be sought so that evaluators from each country are chosen regularly. This safeguards against the employment of the same experts with growing practical experiences from a few member states, as is the case in the CPT.105 The evaluation team usually consists of five persons: four evaluators (one legal evaluator, one law enforcement evaluator and, ideally, two financial evaluators) plus one secretariat member. Three of the evaluators are from a MONEYVAL country and one evaluator is from an FATF country.106

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The monitoring procedure of MONEYVAL is organised in monitoring rounds, each with a specific issues on which the evaluation procedure shall be based. The third round ended in December 2010 and the fourth round has already started with Slovenia and Hungary. In each monitoring cycle, the recommendations which were made in the previous rounds are also re-examined. As a first step, a questionnaire is sent by the secretariat to the state which is requested to reply within two months. Then the evaluation team is 103 Ibid. 104 Israel was granted active observer status in 2006, which enables the state to take part in the evaluation process. In addition, an important number of countries and organisations, such as Canada, the USA, Japan, the International Monetary Fund and the World Bank have regular observer status in MONEYVAL. 105 This indicates the difference between a peer-review system where even in respect to external experts, states need to be equally represented, and an independent expert body that can choose by whom it wishes to be reinforced. 106 Cf. Rule 3 of the rules of procedure.

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composed in order to assess the state’s response107 followed by an on-site visit where talks are held with representatives of the private sector, of public institutions, of the police and also of banks. The interlocutors are chosen by the state, apart from the private sector, but additional meetings may be requested by the evaluation team. The evaluators may seek further information and send their contribution to the secretariat.108 A first report is then drafted by the secretariat which undergoes a number of rounds of consultation between evaluators and the secretariat before being sent in its final version to the state, which may comment on it. The draft report is then discussed and finally adopted in the plenary as a report of the MONEYVAL group.

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In a follow-up process, special recommendations are made and the state is obliged to submit the first progress report within one year of adoption of the report.109 The rapporteur follows and assesses the progress reports. Furthermore, there exists a new process involving the secretariat: six core recommendations are identified and the secretariat prepares an analysis.110 The progress reports and the secretariat’s analysis together with the comments of the rapporteur state are then presented to the plenary. The plenary subsequently decides in conclusions whether sufficient steps have been taken to implement the core recommendations. If this is not the case, a “compliance-enhancing procedure” may be started in which pressure is then exercised on the state to implement the recommendations – with the threat that a public statement can be made in case of non-implementation. The procedure of initiating such a statement comprises four steps: (1) information to the state concerned that this procedure has been initiated, (2) high-level contact, (3) the Secretary General is informed, and (4) a public statement is made. This procedure is very effective and has been initiated vis-à-vis certain states such as Azerbaijan, San Marino and Albania.

107 108 109 110

Cf. Rule 7 of the rules of procedure. Cf. Rule 16 of the rules of procedure. Cf. Rule 46 and following of the rules of procedure. For reasons of completeness, COP 198 (Conference of Parties for the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism) shall also be mentioned in connection to MONEYVAL since the same secretariat is responsible for the two bodies. The legal basis of COP 198 is the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism of 2005, building on the success of the 1990 Council of Europe convention in one comprehensive instrument. The new convention provides for a monitoring mechanism through a “Conference of the Parties” to ensure that its provisions are being applied. The COP 198 monitors the proper implementation of the convention by the parties and, at the request of a party, expresses an opinion on any question concerning the interpretation and application of the convention. The first meeting of COP 198 was held in 2009. Information available on the COP 198 website: www. coe.int/t/dghl/monitoring/cop198.

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Figure 7: MONEYVAL monitoring procedure MONEYVAL monitoring procedure MONEYVAL

Sends a standardised questionnaire to the states parties in order to collect information.

State party

Replies to the questionnaire within two months. A team of experts and a member of the secretariat conduct a one-week on-site country visit to gather further information.

MONEYVAL

The evaluators send their contributions to the secretariat within four weeks of the on-site visit. The secretariat prepares a draft mutual evaluation report within four weeks. The evaluators may comment on this report before it is finalised. The finalised report is then submitted to the country.

State party

May comment on the evaluation report. The evaluators indicate any amendments they are prepared to accept.

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MONEYVAL

The secretariat modifies the report in the light of the comments received from the evaluators. The revised draft mutual evaluation report is then submitted to the country and the plenary. The plenary adopts the report and sends it to the head of delegation of the country.

State party

MONEYVAL State party

Once the head of delegation has confirmed the accuracy of the report, it is transmitted to the permanent representation of the country undergoing evaluation and published on the MONEYVAL website. Sends a questionnaire to the state party one year after the adoption of the mutual evaluation report. Provides a progress report on the basis of this questionnaire.

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MONEYVAL monitoring procedure The progress report is discussed in the plenary. If the plenary is satisfied with the information provided and the progress achieved, the progress report is adopted and published on the MONEYVAL website. If the plenary is not satisfied with the information provided, it invites the state party to re-submit a fuller progress report. MONEYVAL

If the plenary is not satisfied with the progress achieved, it may: • require the country to provide a report to the next plenary or regular reports until the plenary is satisfied with the progress achieved; • publish each such report; and/or • apply supplementary peer pressure by using compliance-enhancing procedures, including further compliance reports that may be published.

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6. Conclusions The overview of the different types of monitoring mechanisms established in the Council of Europe intended to illustrate the focus on monitoring in this organisation. The monitoring powers of the Secretary General, the Committee of Ministers as well as the Parliamentary Assembly, but also of the Commissioner for Human Rights, are of a more general nature and comprise all human rights obligations entered by member states. In contrast, the monitoring mechanisms, mainly based on treaties or established by consensus or partial agreements between states, focus on specific human rights obligations. The monitoring procedures of the Council’s institutional bodies equally vary in relation to those established for the monitoring mechanisms based on treaty or other state consent. The very fact that all these mechanisms were until recently gathered under a common roof in the Secretariat’s structure, namely the Directorate of Monitoring, equally indicated that they have a distinctive role in surveying the human rights situation in a member state in respect of a certain catalogue of human rights or a single principle. The overview provided in this chapter also sought to highlight similarities and distinguishing features of the different types of monitoring mechanisms which comprise independent expert bodies, peer review and hybrid systems. 50

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The main difference is certainly that in independent expert bodies, members should be under no instruction from states, and act solely in their individual professional capacity. However, the development of peer-review systems, where states are actively involved in the monitoring activities, is equally important and their role should not be underestimated. What can be seen from the procedures of these new mechanisms is that it is not enough to evaluate and assess the human rights law and practice at national level, it is equally important to follow up on the conclusions drawn and the recommendations made for improvements. State delegates decide in these systems on the advice of individual experts on a selection of core recommendations which are considered as the most urgent for implementation. A follow-up procedure, which gives clear benchmarks and provides for consequences in case of non-compliance, has also been introduced which may perhaps have a model function for all monitoring mechanisms. Whether such working methods can be applied by independent expert bodies on the basis of their mandate remains to be seen.

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While the standard-setting function of the monitoring mechanisms under examination is the core of this book, it is deemed necessary to devote the following two chapters to the results of a comparative research on the legal basis, mandate and working methods of the ACFC, the CPT, ECRI and the ECSR.

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CHAPTER II Comparison of the legal framework, mandate and composition of the Council of Europe expert bodies 1. Comparing the legal framework, mandate and composition of Council of Europe expert bodies

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Overview of main questions that will be addressed in this chapter

Legal framework

On which legal bases do the expert bodies operate? What secondary rules have been established for them? How many states have accepted the experts’ monitoring?

Mandate

What mandate do the expert bodies have? What outputs do the expert bodies produce as a result of their mandate?

Composition

How many experts are assembled in the expert bodies and for what period of time are they appointed? Who appoints or elects the expert members? Who supports the expert members in their work?

The ACFC, the CPT, ECRI and the ECSR were established by Council of Europe member states to monitor the member states’ compliance with different human rights, ranging from the protection of national minorities, the prevention of torture and ill-treatment to combating racism and the respect for social rights. Substantial academic analyses have been conducted for each of these committees.111 This chapter, however, will not reproduce or 111 For the ACFC see, among others, de Beco and Lantschner 2012; Lantschner, Marko and Petričušić 2008; Council of Europe 2004; for the CPT see, among others, Kicker 2012; Morgan and Evans 1999; Evans and Morgan 1998; for ECRI see, among others, Hollo 2012 and 2009; Kelly 2004; and for the ECSR see, among others, de Schutter and Sant’Ana 2012; de Búrca and de Witte 2005; Harris and Darcy 2001.

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comment on these assessments in a comprehensive manner, but will restrict itself to a brief, but comparative introduction to the four expert bodies under examination. More specifically, this chapter will be concerned with an overview of the legal frameworks, mandates and composition of the expert bodies to familiarise the reader with some key points of the four committees. The legal bases and the mandates of the expert bodies will be discussed in more detail later in the book; Chapter III dealing with more specific questions related to the monitoring procedures, and Chapter IV elaborating on the process of standard-setting through monitoring. The comparative analysis of the four monitoring bodies starts with a brief overview of the legal framework of the expert bodies in order to provide basic information on each body’s legal basis and the secondary rules that have been established for them. Further, the number of states parties that have accepted the monitoring provisions will be presented.

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Then, the main features of the mandate are briefly summarised for each body to outline the specific purposes the Council of Europe bodies were established for. In this respect the notion “mandate” is understood as the scope of action that may be taken by the respective Council of Europe expert body in order to fulfil the objectives they were established for. In order to grasp the mandate of each of the four expert bodies, the legal basis of the mandate and the manner in which the mandate is implemented in practice is reviewed briefly. The main substantive outputs produced by the expert bodies will also be presented. A more detailed account of the committees’ mode of operation, however, will be given in Chapter III dealing with the expert bodies’ monitoring procedures. This chapter further provides an overview of the composition of the four Council of Europe expert bodies and discusses selected membership issues. How many experts are assembled in the expert bodies and for what period of time are they appointed? Certainly, the question about the number of expert members in each committee will not be discussed in isolation from another membership issue, namely the respective appointment procedures. Logic implies that the appointment procedures are crucial elements in ensuring the independence, impartiality and overall professionalism of members of the committee. Moreover, the entire authority of each expert body heavily builds on the independent and impartial expertise and availability of its members. Therefore, questions such as who appoints the expert members, and according to which criteria, are addressed. Furthermore, attention is drawn to the fact that the Council of Europe monitoring bodies increasingly use “external” experts and their specific professional knowledge in the course of their monitoring work. These kinds of experts are termed “external” experts here, because they are not appointed as members of the expert body by the member states in accordance with the ordinary appointment procedures. In the case of each expert body, it is explained if and to what extent the committee resorts to external experts. Moreover, there are administrative entities, such as secretariats, behind the expert bodies that provide irreplaceable support 54

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to the work of the expert members. Thus, this chapter also aims to shed light on the personnel who support the Council of Europe bodies in their work. At first glance it may appear that each expert body covers its very special and distinct field of human rights and thus has little in common with the other three bodies. Yet, through the assessment undertaken below it becomes clear that the four Council of Europe expert bodies are not as different as one might assume. Indeed, they do have many features in common, which make them at least comparable. For this reason, this chapter also aims to provide some conclusions based on a comparative analysis of the legal framework, the mandate and the composition of the four expert bodies under review.

2. ACFC 2.1. Legal framework

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The ACFC is based on the FCNM, which was adopted in November 1994 and entered into force in February 1998.112 The objective of the FCNM is to effectively protect the rights and freedoms of persons belonging to national minorities, by specifying the legal principles which states endeavour to respect.113 The protection of national minorities “forms an integral part of the international protection of human rights, and as such falls within the scope of international co-operation”.114 Since the protection of national minorities often touches upon very sensitive topics, the adoption of an additional protocol to the ECHR on the issue of the protection of national minorities was discussed, but with no agreement reached between the Council of Europe member states. An additional protocol would have meant that minority issues would come under the judicial scrutiny of the European Court of Human Rights. Instead, the heads of state and government of the Council of Europe decided that the legal instrument for the protection of minorities should take the form of a framework convention, which mainly provides for the goals to be reached by domestic regulations in future rather than exactly defining precise legal obligations. Notwithstanding this compromise concerning the legal basis, the FCNM can be considered as a unique achievement because it constitutes the first legally binding multilateral instrument dedicated to the protection of national minorities.

112 The FCNM and the explanatory report are available at www.coe.int/t/dghl/monitoring/ minorities/1_AtGlance/FCNM_Texts_en.asp. 113 Cf. paragraph 10 of the Explanatory Report to the FCNM. 114 Article 1 FCNM.

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The FCNM is composed of five sections for which the explanatory report attached to the convention provides more detailed information and commentaries on both the substantive provisions of the FCNM as well as the monitoring procedure. Resolution (97) 10, adopted by the Committee of Ministers on 17 September 1997, constitutes the major legal basis for the monitoring procedure of the ACFC, as it regulates its composition and the election of its members, as well as the procedure to be followed in performing its monitoring function. In 2009 this resolution was amended by the Committee of Ministers through Resolution CM/Res(2009)3, introducing new rules for the publication of the ACFC’s opinions.115 Moreover, the committee’s Rules of Procedure, which were adopted in October 1998, give guidelines for the internal organisation, the rules to be followed for the consideration of state reports, as well as the further working methods of the ACFC.116

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The FCNM does not provide for a definition of the term “national minorities”. Therefore each state party to the FCNM is required to assess which groups of the society are to be covered by the convention within their territory. Certainly, the states are not entirely free to decide which groups of people to regard as national minorities. This decision must be made in good faith and in accordance with general principles of international law and the fundamental principles set out in Article 3 of the convention, which states that “[e]very person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such and no disadvantage shall result from this choice or from the exercise of the rights which are connected to that choice”. The ACFC adopts a flexible and creative approach in this respect. The expert body encourages states to include groups of immigrants and non-citizens, the so-called “new minorities”, within the scope of the FCNM on an article-by-article basis. So far, 39 out of the 47 Council of Europe member states have ratified the FCNM, four signatories failed to ratify (Belgium, Greece, Iceland and Luxembourg) and a further four Council of Europe member states (Andorra, France, Monaco and Turkey) neither signed nor ratified the FCNM.117 The geographical scope of application of the FCNM may go beyond the borders of the Council of Europe, enabling the accession of any non-Council of Europe

115 See Committee of Ministers 2009. For more information on this amendment, see Chapter III, sub-chapter 2.4. 116 See Rules of Procedure of the Advisory Committee on the Framework Convention for the Protection of National Minorities 1998. 117 The states which have ratified the FCNM are: Albania, Armenia, Austria, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, Georgia, Germany, Hungary, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Malta, Moldova, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, San Marino, Serbia, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, “the former Yugoslav Republic of Macedonia”, Ukraine and the United Kingdom. See Council of Europe 2008.

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state after invitation by the Committee of Ministers.118 Regarding Kosovo, an agreement was concluded in 2004 between the United Nations Interim Administration Mission in Kosovo (UNMIK) and the Council of Europe, according to which Kosovo is subject to a specific monitoring arrangement.119

2.2. Mandate

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The FCNM provides for a monitoring system to evaluate how the programme-type provisions enshrined in the Framework Convention are implemented domestically by states parties. The ACFC is mandated to monitor the implementation of the catalogue of principles laid down in the FCNM by a non-judicial mechanism on the basis of a state reporting system. To that end, it engages in a constructive and permanent dialogue with the state authorities.120 According to Article 26 (1) of the FCNM, and pursuant to Rule 23 of Resolution (97) 10, the expert body is explicitly designed as an advisory body to the Committee of Ministers and tasked with the examination and evaluation of the adequacy of the legal and practical implementation of the FCNM. Therefore, the committee’s task is restricted to providing advisory opinions to the Committee of Ministers. The findings of the ACFC’s country-to-country monitoring are therefore termed “opinions” and form the basis of the Committee of Ministers’ decisions on the compliance of a member state with the obligations as laid down in the FCNM.121 The mandate of the ACFC has a clear focus on the country-by-country monitoring. The catalogue of principles, contained in Section II of the FCNM, provides for a list of key areas which are particularly relevant for persons belonging to national minorities, and which come under the scrutiny of the ACFC. These key areas include: equality and non-discrimination; promotion of culture and identity as well as tolerance and intercultural dialogue; media rights; linguistic rights; educational rights; effective participation in cultural, social and economic rights and in public life; cross-border co-operation. The principle of non-discrimination is one of the human rights overarching the whole FCNM. Other principles touch the human rights to life, to private and family life, to conscience and religion, to freedom of expression and association. In practice the ACFC also interpreted its mandate to allow for work on general themes of particular relevance in all Council of Europe member states. 118 Cf. Article 27 FCNM. 119 See Agreement between the United Nations Interim Administration Mission in Kosovo (UNMIK) and the Council of Europe on Technical Arrangements related to the Framework Convention for the Protection of National Minorities 2004. 120 De Beco and Lantschner 2012: 103. 121 The ACFC’s opinions will be discussed in more detail in Chapter IV.

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During the second monitoring cycle the ACFC started this thematic work to summarise its experience and views on the most important issues discovered. As a result, the expert body has adopted two “thematic commentaries”; one on education in 2006, and one on participation in 2008. A third thematic commentary on linguistic rights is currently in development.122 Although not required by the FCNM, the ACFC publishes biannual activity reports covering, inter alia, major trends observed by the expert body, overviews of the country-monitoring activities, as well as organisational matters.123 Further important periodic outputs giving insights into the ACFC’s work and achievements are the committee’s meeting reports which are issued three times a year after each of the plenary meetings.124

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2.3. Composition of the expert body The ACFC is composed of independent experts, a minimum of 12 and a maximum of 18,125 who serve a four-year term of office. There may be only one expert member appointed as member of the committee in respect of any state party to the FCNM. In accordance with Resolution (97) 10 of the Committee of Ministers, all members of the ACFC shall possess recognised expertise in the field of the protection of national minorities. The experts serve in their individual capacities, have to meet the requirement of independence and impartiality as set out in Rule 6 of Resolution (97) 10 and shall be available to serve on the committee effectively.126 Every two years, nine of the 18 experts’ mandates are renewed, which ensures a high level of continuity as half of the expert members remain part of the committee. A member can serve a maximum of two terms. Rules 7 to 15 of Resolution (97) 10 provide the detailed election procedure, which works as follows. Each state party has the right to nominate at least two experts who have the required qualifications and capacity to serve the ACFC. The Secretary General transmits names of these candidates to the Committee of Ministers who then elects one expert in respect to each state party who are then entered on the “List of Experts Eligible to Serve on the Advisory Committee”. In the past, as long as the number of experts on this list did not exceed 18, all experts on the list were appointed as ordinary members of the ACFC. Now, with the increase in the 122 The ACFC’s thematic commentaries will be discussed in more detail in Chapter IV. 123 The activity reports of the ACFC are available on the expert body’s website: www.coe. int/t/dghl/monitoring/minorities/2_Monitoring/ActivityReports_en.asp. 124 The meeting reports of the ACFC are available on the expert body’s website: www.coe. int/t/dghl/monitoring/minorities/2_Monitoring/ACFCMeetingReports_en.asp. 125 As of October 2011  the ACFC has 18  members. A list of members is available on the expert body’s website: www.coe.int/t/dghl/monitoring/minorities/2_Monitoring/PDF_ ACFC_Composition_en.pdf. 126 See Committee of Ministers 1997a.

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number of member states, the number of experts on the list exceeds 18. A rotation system now ensures that experts from those states parties that have not been appointed at two or more preceding rounds of appointment are appointed before experts from states parties who have not been appointed at the immediately preceding round, and before those who have no member in the current composition of the committee.127 This rotation system ensures that the geographic composition of the committee changes over time. Besides the 18  members of the ACFC, there are also so-called “additional members”. These are those members who were elected on the list but are not currently members of the ACFC. An additional member only participates in the work of the ACFC when it comes to the examination of the report submitted by the state which has entered this person on the list of candidates. Consequently, the additional members do not have the right to vote. The use of further external experts is virtually unknown to the ACFC in its country-by-country monitoring. The committee does, however, involve external experts in its thematic work. This is possible as per Rule 31, the ACFC may invite information from other sources after notifying the Committee of Ministers of its intention to do so.128 According to Rule 11 of the Rules of Procedure, the Secretary General shall provide the ACFC with the necessary staff, including a secretary, as well as the administrative and other services it may require. The Secretariat of the ACFC currently comprises nine members.129 The secretariat plays a very important role as it researches and prepares the necessary background material for the evaluation of a state report, it organises and participates in country visits and provides the ACFC with draft opinions which are then discussed, amended and adopted by the ACFC.

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3.1. Legal framework The CPT was established by the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT), which was adopted in 1987 and entered into force in 1989.130 Although several international instruments have been adopted since the Second World War which formally prohibit torture and inhuman or degrading treatment or punishment, experience showed that there was a lack of functioning 127 Ibid., rules 14 and 15. 128 Cf. de Beco and Lantschner 2012: 112. 129 The list of secretariat members is available on the ACFC’s website: www.coe.int/t/dghl/ monitoring/minorities/6_Resources/Secretariat_en.asp. 130 See Article 1 of the ECPT, http://cpt.coe.int/en/documents/ecpt-version1989.htm.

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procedures capable of effectively enforcing compliance with the obligations they created. Thus, the establishment of the CPT is a response to the “need for wider and more effective international measures, in particular to strengthen the protection of persons deprived of their liberty”.131 The roots of the ECPT originate from an initiative launched in 1976 by Jean-Jacques Gautier, a Swiss banker, who initially proposed the preparation of a convention establishing a system of visits by independent experts to all places of detention, at universal level, supplementing the United Nations Convention for the Prohibition of Torture.132 The ECPT has been amended by two additional protocols, both of which were drafted in 1993 and entered into force in March 2002.133 The first of these two protocols opens up the convention for non-member states of the Council of Europe who may be invited by the Committee of Ministers to accede to it. The second additional protocol to the convention concerns procedural matters and rules allowing members of the CPT to be re-elected twice, and half of the committee to be renewed every two years.134

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The entire ECPT comprises 23 articles plus an appendix detailing the working and monitoring procedure foreseen for this expert body, its composition and its guiding principles. The explanatory report to the ECPT sheds more light on the individual provisions of the convention and provides a more detailed interpretation of the convention.135 It has been considered by the CPT as having the same legal force as the convention itself.136 Based on Article 6 (2) ECPT, the CPT adopted its own internal rules of procedure in 1989 during the committee’s first plenary meeting in Strasbourg.137 The ECPT does not contain substantive provisions on the subject of torture and inhuman or degrading treatment or punishment, and makes no attempt to define these notions, nor gives directions on what shall be considered by the committee as a potential violation of Article 3  ECHR. The preamble of the ECPT merely clarifies that the CPT operates “in relation to persons who allege that they are victims of violations of Article 3”. The committee’s main function is thus to strengthen “the protection of persons deprived of their liberty against torture and inhuman or degrading treatment or punishment … by non-judicial means of a preventive character based on visits”. 131 Explanatory Report to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 2002: paragraph 12. 132 For the history of the establishment of the CPT, see Haenni 1997. 133 See Protocol No. 1, ETS No. 151, and Protocol No. 2, ETS No. 152, both of 4 November 1993. 134 According to the convention of 1989 re-election was possible only once. 135 See Explanatory Report to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 2002. 136 See Kicker 2007: 95. 137 Since then, the rules of procedure have been amended on 8 March 1990, 11 May 1990, 9  November 1990, 31  January 1991, 20  September 1991, 12  March 1997  and 7  March 2008. See European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 2008.

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Until now, the ECPT as well as its two additional protocols have been ratified by the 47 member states of the Council of Europe.138 The possibility to accede to the ECPT on the basis of the first additional protocol has only been used by Montenegro after it gained independence from Serbia and before it was accepted as a member state of the Council of Europe. Belarus has been addressed by the CPT in several general reports as a candidate to join the convention on the basis of the first additional protocol but has not been invited by the Committee of Ministers yet. The CPT has been requested, and has agreed, to monitor the situation of persons convicted by the International Criminal Tribunal for the former Yugoslavia (ICTY) and serving their sentences in Albania, Germany, Portugal, Ukraine and the United Kingdom. This specific monitoring activity is regulated by an exchange of letters between the ICTY and the CPT in November 2000.139 In addition, the CPT entered into special agreements with UNMIK and the North Atlantic Treaty Organization (NATO) concerning the Kosovo Force (KFOR) so that it was able to carry out visits in detention places in Kosovo.140

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3.2. Mandate Article 1 ECPT defines the mandate of the CPT as follows: “The Committee shall, by means of visits, examine the treatment of persons deprived of their liberty with a view to strengthening, if necessary, the protection of such persons from torture and from inhuman or degrading treatment or punishment.”141 As clearly indicated not only in the name of the committee but also in the preamble and Article 1 of the ECPT, the CPT is created as a preventive non-judicial system. This system is designed to operate alongside the judicial system as laid down in the ECHR. While the role of the European Court of Human Rights is to settle legal disputes concerning alleged violations of Article 3 ECHR, the CPT aims at preventing breaches of the principle of the prohibition of torture, and protecting persons deprived of their liberty by a public authority from ill-treatment in places of detention such as police stations, prisons, immigration centres, military detention facilities, psychiatric establishments and juvenile detention centres. 138 A full list of members is available on the Council of Europe’s website: http://conventions. coe.int/Treaty/Commun/ChercheSig.asp?NT=126&CM=1&DF=&CL=ENG. 139 For the texts of these letters see European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 2001: Appendix 5. 140 For the Agreement between UNMIK and the Council of Europe on Technical Arrangements related to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, see European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 2004: Appendix 8. The monitoring reports on both visits to Kosovo addressed to UNMIK, as well as UNMIK’s responses are already published, notwithstanding the exchange of letters between the CPT and NATO, as well as the report on the inspection of the KFOR detention facilities, which so far has remained confidential. 141 Article 1 ECPT.

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The monitoring system is based on on-site inspections, according to which the CPT shall be granted unlimited access to any place where persons are deprived of their liberty. This also includes the right to move inside such places without restriction and to interview detainees in private.142 On the basis of the findings of these visits and further sources, the CPT draws up country reports including a set of recommendations addressed to the member state concerned.143 If the CPT regards it necessary it may also communicate immediate observations to the state authorities immediately after each visit.144 In this way, the CPT engages in an ongoing dialogue with the member states to enhance the detention conditions as well as the treatment of detained persons in the respective state.

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The principle of co-operation is deeply rooted in the CPT’s mandate. Paragraph 20  of the explanatory report emphasises that “[the] purpose of the committee is not to condemn states, but, in a spirit of co-operation and through advice, to seek improvements, if necessary, in the protection of persons deprived of their liberty”. Only if the state party “fails to co-operate or refuses to improve the situation in the light of the Committee’s recommendations, the Committee may decide, after the Party has had an opportunity to make known its views, by a majority of two-thirds of its members to make a public statement on the matter.”145 The provisions of the ECPT and its explanatory report allow for a dynamic interpretation of the mandate of the CPT in practice. In the past the CPT has significantly extended the focus of its preventive mandate as concerns the places of detention visited as well as the groups of persons which were identified as vulnerable. Not only police stations, prisons and psychiatric establishments, but also social welfare homes for mentally disabled or elderly persons, administrative detention for foreign nationals under aliens legislation, juvenile detention centres and military detention facilities are subject to monitoring. Illegal immigrants in transit zones of airports, for instance, are also considered as falling under the CPT’s mandate. In the course of time, specific vulnerable groups have been identified in different types of establishments as target groups for inspections. These include long-term and life-sentenced prisoners, persons placed in high security units, those held in conditions of isolation, as well as juveniles and women.146 According to Article 12  ECPT, the CPT publishes annual general reports, outlining the main activities of the CPT in the reporting period, as well as 142 143 144 145 146

See Article 8 (2) ECPT. The CPT’s country reports will be discussed in more detail in Chapter IV. See Article 8 (5) ECPT. Article 10 (2) ECPT. Cf. Kicker 2012: 49.

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organisational matters.147 To date, 21 general reports have been published by the CPT. Some of these reports also contain a substantive section where the CPT’s standard recommendations, related to a specific field of its work, are summarised. These substantive findings are compiled in the so-called “CPT Standards”, which are the essence of the assessment criteria applied by the CPT in its monitoring procedure.148

3.3. Composition of the expert body

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Article 4  ECPT provides that the number of CPT members matches the number of Council of Europe states parties, which is currently 47. No two representatives are allowed to have the same nationality. Seats can be left vacant, which is currently the case in respect of Bosnia and Herzegovina, and Spain, which means that the CPT is operating with 45 members in total.149 The convention provides for certain requirements for becoming a member of the committee. According to Article 4 of the convention, CPT members should be “persons of high moral character, known for their competence in the field of human rights or having professional experience in the areas covered by the Convention”. The members are to be independent and impartial experts from a variety of backgrounds, including lawyers, medical doctors and specialists in prison or police matters and shall be sufficiently available to carry out their mandate in an efficient manner. According to Article 5 (1) ECPT the candidates are chosen from a list that is drawn up by the Bureau of the Consultative Assembly150 of the Council of Europe. Each national delegation of the parties in the Consultative Assembly shall put forward three candidates, of whom at least two shall be its nationals. Members are then elected by an absolute majority of votes in the Committee of Ministers. As laid down in Article 5 (3) of the convention, the CPT members are elected for a four-year period by the Committee of Ministers. Since the entry into force of Protocol No. 2, the term of office may vary, as half of the membership of the committee is renewed every two years. Further members may be re-elected twice on the basis of the second additional protocol to the convention. Proposals for improvements of the appointment procedures for the CPT have been subject to resolutions by the Parliamentary Assembly of the Council of Europe (PACE).151 The PACE, for instance, invited the states 147 The CPT’s general reports are available on the expert body’s website: www.cpt.coe.int/en/ docsannual.htm. 148 The CPT Standards are available on the expert body’s website: http://cpt.coe.int/en/ docsstandards.htm. They will be discussed in more detail in Chapter IV. 149 A list of members is available on the expert body’s website: www.cpt.coe.int/en/members. htm. 150 This body is today called the “Parliamentary Assembly”. 151 See Parliamentary Assembly of the Council of Europe 2007.

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parties to introduce public calls for candidatures at national level and carry out interviews to assess whether the candidates proposed actually meet the legal and practical requirements for serving the CPT in an effective way. Article 7 (2) ECPT foresees that the committee may, if it considers it necessary, be assisted by experts and interpreters. External experts may thus assist the committee in gathering, assessing and evaluating the information in relation to the state monitored. It has become common practice for the committee to invite one or two “ad hoc experts” as members of the visiting delegations of the CPT. The CPT’s secretariat plays an essential role and can be considered as the driving force for the committee’s work. The secretariat’s main tasks lie in the preparation and organisation of the committee’s on-site visits and the subsequent drafting of the reports. It is also common practice that members of the secretariat support delegations in carrying out the visits, meaning that they are also fully engaged in field work.152

4. ECRI

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4.1. Legal framework The establishment of ECRI was agreed upon at the 1st Summit of Heads of State and Government of the Council of Europe in October 1993 in Vienna, also known as the Vienna Summit. The resulting Vienna Declaration provided a basic outline of ECRI’s field of activity, but contained little guidance as to how this expert body might function in practice. From this starting point, ECRI has, in a progressive, step-by-step manner, “created itself”, and developed a distinctive programme of activities.153 Its autonomous statute was adopted nine years later in 2002 by Committee of Ministers Resolution Res(2002)8.154 The Statute of ECRI clearly substantiates this expert body’s role as an independent human rights monitoring body, designated to combat racism, racial discrimination, xenophobia, anti-Semitism and intolerance in Council of Europe member states.155 The statute does not contain a definition of the terms “racism” or “discrimination”. Therefore, ECRI developed its own interpretation and regards “racism” as the belief that “a ground such as race, colour, language, religion, nationality or national or ethnic origin justifies contempt for a person or a group of persons, or the notion of superiority of a person or a group of persons”.156 152 153 154 155 156

Cf. Kicker 2012: 57. Cf. Kelly 2004: 137. See Committee of Ministers 2002a. Ibid: Appendix. European Commission against Racism and Intolerance 2002b: paragraph 1.

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The term “discrimination” is interpreted by ECRI as “any differential treatment based on a ground such as ‘race’, colour, language, religion, nationality or national or ethnic origin, which has no objective and reasonable justification”.157 The Statute of ECRI is very compact and comprises only 14 articles. These detail the commission’s composition and monitoring procedure. The expert body’s internal affairs are regulated in internal rules of procedure, which were adopted in March 2003 at the commission’s 30th plenary meeting.158 The ECRI Statute is open for signature to Council of Europe states only. All 47 Council of Europe member states have accepted the expert body’s competences.

4.2. Mandate The overall mandate of ECRI is laid down in Article 1 of the ECRI Statute. This defines the commission as “… a body of the Council of Europe entrusted with the task of combating racism, racial discrimination, xenophobia, anti-Semitism and intolerance in greater Europe from the perspective of the protection of human rights, in the light of the ECHR, its additional protocols and related case-law”.

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In practice, ECRI fulfils this non-judicial mandate by a three-pronged approach. Firstly, ECRI conducts country-by-country monitoring by examining the situation concerning manifestations of racism and intolerance in all Council of Europe member states on an equal footing. The findings of the expert body are published in country reports together with recommendations on how to deal with the problems identified.159 ECRI draws up these country reports after a confidential dialogue with the national authorities concerned. It also developed the practice of giving statements or declarations on disturbing developments with regard to racism or intolerance in member states. So far, ECRI has published seven such statements and declarations.160 Secondly, ECRI adopts general policy recommendations (GPR) addressed to the governments of all member states. GPRs are general guidelines which ECRI considers of particular importance in order to effectively combat racism, xenophobia, anti-Semitism and intolerance, as well as specific activities on these subjects aiming at assisting member states when drawing up national legislation and providing examples of good practice.161 So far, ECRI has 13 GPRs dealing with diverse topics such as specialised bodies to combat racism, xenophobia, anti-Semitism and intolerance at national level, 157 Ibid. 158 European Commission against Racism and Intolerance 2003. 159 ECRI’s country reports will be discussed in more detail below in Chapter IV. 160 The statements and declarations are available on the expert body’s website: www.coe. int/t/dghl/monitoring/ecri/activities/Statements_en.asp. 161 See Article 12 of ECRI’s Statute.

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national legislation to combat racism and racial discrimination, or combating racism and racial discrimination in policing.162 Further, ECRI collects and disseminates examples of “good practices” as part of its thematic work.163 Thirdly and finally, ECRI is tasked with upholding close relations with civil society to combat racism and discrimination according to Article 13 of the ECRI Statute. For this purpose, ECRI has adopted an action plan foreseeing the organisation of round tables in member states and strengthening co-operation with other interested parties such as NGOs, the media, and the youth sector in order to raise awareness among the general public and prevent racism from being evoked in the first place.164 The three-pronged mandate of ECRI is framed in rather loose terms and the commission has a large degree of discretion as to how to implement the mandate in practice. Racism and intolerance occur in various manifestations which change as society does. The commission must be able to confront these challenges and react to it dynamically. ECRI has to handle the most obvious kinds of racism, such as apartheid or Nazism, but also other forms of differential treatment which might occur in everyday life and can range from religious to national or language discrimination.165 Following on from the latter, ECRI stresses that every country requires individual work in its specific national context.166 For this reason, ECRI avoids comparing countries with one another and does not rank them according to their level of compliance. In line with Article 7 of the ECRI Statute, the expert body draws up an annual activity report, which is submitted to the Committee of Ministers and made public.167 The reports include information on main trends in the fields of racism, racial discrimination, xenophobia, anti-Semitism, and intolerance in states parties; a summary of the expert body’s main activities, as well as key information on organisational matters.

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4.3. Composition of the expert body Article 2 (1) of the ECRI Statute provides that the expert body shall be composed of one expert per Council of Europe member state. Since the seat of Bosnia and Herzegovina is currently vacant, ECRI presently has 46 members.168 162 The collected GPRs are available on the expert body’s website: www.coe.int/t/dghl/ monitoring/ecri/activities/GeneralThemes_en.asp. 163 ECRI’s GPRs and “good practices” will be discussed in more detail below in Chapter IV. 164 Cf. European Commission against Racism and Intolerance 2002a. 165 European Commission against Racism and Intolerance 2009a: 5. 166 Ibid: 11. 167 The annual reports on ECRI’s activities are available on the expert body’s website: www. coe.int/t/dghl/monitoring/ecri/library/publications_en.asp. 168 A list of members is available on the expert body’s website: www.coe.int/t/dghl/ monitoring/ecri/about/members_en.asp.

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The members of ECRI are appointed for a term of office of five years and reappointment is possible once.169 According to the ECRI Statute, the members of the expert body shall possess high moral authority and recognised expertise in dealing with racism, racial discrimination, xenophobia, anti-Semitism and intolerance. Furthermore, they are required to serve in their individual capacity and have to be independent and impartial in fulfilling their mandate, which means in particular that they shall not receive any instructions from their governments.170 The highly multidisciplinary composition of ECRI shall be emphasised here, because ECRI members in practice originate from various backgrounds. These range from NGOs, media, social scientists, and jurists specialised in human rights law; to journalists, businessmen and teachers.

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ECRI’s appointment procedure provides that each national government appoints one ECRI expert and one deputy.171 After the nomination the governments are obliged to communicate the appointment of the members to the Council of Europe Secretary General, who subsequently informs the Committee of Ministers. If the latter is of the opinion that one or more appointed members do not fulfil the qualifications foreseen in the statute it may object to their nomination and request the governments in question to proceed to another appointment. Currently, 14  Council of Europe member states have appointed deputies to their ECRI experts.172 According to the internal rules of procedure a deputy member of ECRI can participate in ECRI plenary meetings and meetings of working groups only when he replaces the ECRI member. Further, the deputy has the same right to vote as the ECRI member he replaces.173 Article 5 of the ECRI Statue stipulates that the Parliamentary Assembly of the Council of Europe, the Congress of Local and Regional Authorities of the Council of Europe, the Holy See and the former Management Board of the European Monitoring Centre on Racism and Xenophobia should be invited to be represented in the expert body without the right to vote. Although contact visits to states parties are carried out by ECRI experts only, external experts play a certain role in the monitoring procedure as they provide ECRI with the relevant background information that is needed to be able to assess the human rights situation in a particular country and to compile a corresponding report. Furthermore, ECRI resorts to external experts for the elaboration of its GPRs.174 169 Cf. Article 3 (5) of ECRI’s Statute. 170 Cf. Article 2 (2) and (3) of ECRI’s Statute. 171 Cf. Article 2 in conjunction with Article 3 (1), (2) and (3) as well as Article 4 (1) of ECRI’s Statute. 172 A list of deputy members is available on the expert body’s website: www.coe.int/t/dghl/ monitoring/ecri/about/deputy_members_en.asp. 173 Cf. Article 8 (1) and (2) of ECRI’s Internal Rules of Procedure. 174 Authors’ interviews held with members of ECRI’s Secretariat in Strasbourg on 12  and 13 April 2010. The interviews are on file with the authors.

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The internal rules of procedure stipulate that the Council of Europe Secretary General shall provide ECRI with the necessary staff, including an Executive Secretary, as well as with the administrative and other services it may require.175 ECRI’s secretariat currently comprises 11 members.

5. ECSR 5.1. Legal framework

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The ECSR was established by Article 25 of the ESC of 1961 (also known as the Turin Charter), as a committee of independent experts which rules on the conformity of national law and practice with the ESC. The ESC undertaking to guarantee social and economic human rights was adopted as a natural complement to the ECHR, which guarantees civil and political human rights. The substantive rights enshrined in the ESC have been modified in the years following its adoption. The first additional protocol of 1988 extended the social and economic rights of the Turin Charter.176 This first protocol was opened for signature on 5 May 1988 and entered into force on 4 September 1992. In 1996, the ESC was renewed through the revised ESC, which entered into force on 1 July 1999.177 The revised ESC contains the amended rights guaranteed by the ESC and the rights guaranteed by the first additional protocol of 1988, as well as further new rights. Since the ESC is still in force for those states which did not ratify the newly extended convention, the adoption of the revised ESC resulted in a situation where two charters on the protection of social rights are in force at the same time. The revised ESC, however, is designed to progressively take the place of the ESC. The ECSR is entitled to supervise both charters as well as the rights enshrined in the first additional protocol. The supervisory system of the ECSR has been subject to two major reforms. In 1991, an amending protocol reformed parts of the ECSR’s supervisory system and clarified the sole interpretative and decision-taking function of the expert body when assessing compliance of national law and practice with the obligations arising from the ESC.178 Until then, the Governmental 175 Cf. Article 10 of ECRI’s Internal Rules of Procedure. 176 Additional Protocol to the European Social Charter, ETS No. 128, which entered into force on 4 September 1992. In this protocol, the states parties were invited to also consider themselves bound by the following rights: right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex; right to information and consultation; right to take part in the determination and improvement of the working conditions and working environment; right of elderly persons to social protection. 177 European Social Charter (revised), ETS No. 163. 178 Protocol amending the European Social Charter, ETS No. 142.

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Committee, composed of representatives of the contracting parties, had a more pronounced position in the supervisory system, which weakened the monitoring system of the ESC. The second additional protocol to the ESC, which was opened for signature on 9 November 1995 and entered into force on 1  July 1998, established a collective complaints system to improve the effective enforcement of the social rights guaranteed by the Charter.179 In this additional protocol, the states parties recognise the right of certain international organisations of employers and trade unions, other international NGOs which have consultative status with the Council of Europe, as well as representative national organisations of employers and trade unions, to submit complaints alleging unsatisfactory application of the Charter. The rights guaranteed by the ESC and the revised ESC concern all individuals in their daily lives and comprise a comprehensive set of social rights ranging from housing, health, education, employment, legal and social protection, and free movement of persons, to non-discrimination. A peculiarity of the ESC and the revised ESC is that they follow a so-called “à la carte system”, where states can choose which articles of the Charter they wish to ratify. However, there exist a number of core articles, which are of a compulsory nature and not open under the à la carte system for states ratifying the Charter.

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Rules of procedure, which are named “Rules”, have been adopted for the ECSR to regulate, inter alia, the composition of the expert body, the procedures for elections within the committee, as well as its working procedures. The current Rules were adopted for the ECSR in 2004 and have been updated since then.180 For the revised ESC there exists an explanatory report, including commentaries to the articles of the revised Charter highlighting in particular the amendments to the ESC of 1961.181 The ESC and its revised version are open for signature by the members of the Council of Europe only. So far, the ESC of 1961  has been ratified by 27  Council of Europe member states and five member states have signed, but not ratified it. The revised ESC of 1996  counts 32  ratifications and 13 signatories not followed by ratifications. Thus, in total, 43 Council of Europe member states have given their consent to be legally bound by either the ESC of 1961 or the revised ESC of 1996. The first additional protocol to the ESC was ratified by 13 member states and only signed without a following ratification by 10 Council of Europe states. The second amending protocol of 1991 was ratified by 23 Council of Europe member states and three have signed but not ratified it. Further, the Additional Protocol to the ESC providing for a System of Collective Complaints has been ratified by 12  Council 179 Additional Protocol to the European Social Charter providing for a System of Collective Complaints, ETS No. 158. 180 The ECSR’s Rules of Procedure were revised in 2005, 2009 and 2011. European Committee of Social Rights 2011. 181 Explanatory Report to the revised European Social Charter 1996.

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of Europe member states and accepted by two others through a declaration made under the ESC; six member states have only signed it.182

5.2. Mandate In accordance with Article 24 of the ESC, as amended by the 1991 Turin Protocol, the committee determines whether or not national law and practice in the states parties are in conformity with the Charter. Rule 2 of the ECSR’s Rules of Procedure specifies that the role of the committee is to assess whether law and practice of the member states are in conformity with the principles of the ESC. The main function of the ECSR is thus to assess the compliance of the member states with the legal obligations entered into by them through the examination of state reports or on the basis of collective complaints. The basis for the committee’s assessment is the catalogue of rights enshrined in the ESC and its first additional protocol, as well as the rights included in the revised ESC. This modus operandi can be understood as a quasi-judicial system.183 Regarding the national reports submitted annually by the states parties, the committee adopts “conclusions” on the conformity or non-conformity of the state concerned with the (revised) ESC. Concerning collective complaints, which can be lodged by certain national or international organisations, the ECSR adopts “decisions”.184 To summar­ ise the conclusions in relation to the state reports and the decisions taken in the course of the collective complaints procedure, the ECSR’s secretariat publishes the “Digest of the Case Law of the European Committee of Social Rights”.185 This digest thus sums up the ECSR’s interpretation of the provisions enshrined in the revised ESC, but it is not binding on the committee. Although not provided for in the ESC, the ECSR started to publish activity reports outlining, inter alia, the body’s activities, examples of progress in the application of the ESC, as well as organisational matters.186

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5.3. Composition of the expert body Formerly, the ECSR used to comprise only seven members but this was changed through a series of decisions. There was an increase from seven to 182 An overview of the signatures and ratifications of the ESC, its protocols and the revised ESC is available online on the ECSR’s website. See European Committee of Social Rights 2012. 183 Alston 2005: 59. 184 A list of organisations that may lodge a complaint is available on the ECSR’s website: www.coe.int/t/dghl/monitoring/socialcharter/OrganisationsEntitled/OrgEntitled_en.asp. 185 The ECSR’s Digest of Case Law is available on the expert body’s website: www.coe.int/t/ dghl/monitoring/socialcharter/Digest/DigestIndex_en.asp. The ECSR’s Digest of Case Law will be discussed in more detail below in Chapter IV. 186 The ECSR’s activity reports are available on the expert body’s website: www.coe.int/t/ dghl/monitoring/socialcharter/Presentation/ActivityReportIndex_en.asp.

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nine members in March 1994  during the 509th meeting of the Ministers’ Deputies and an increase from nine to 15 in 2001 during the 751st meeting of the Ministers’ Deputies.187 The expert body is now composed of 15  experts. The legal criteria for membership are described in Rule 3 of the Rules, which stipulates that “[members] shall perform their duties in conformity with the requirements of independence, impartiality and availability inherent in their office and shall keep secret the Committee’s deliberations”. According to Article 25 (1) ESC, members of the ECSR shall be independent experts of the highest integrity and of recognised competence in international social questions. The committee is almost entirely made up of professionals with a legal background. According to Article 25 (1) and (2) of the ESC of 1961, the ESCR members are nominated by the contracting parties and appointed by the Committee of Ministers for a period of six years. The members may be reappointed once.188 Article 3 of the protocol amending the ESC of 1991 states that the committee members should be elected by the Parliamentary Assembly instead of the Committee of Ministers. However, this protocol is not in force today because the condition of having the ratifications of all contracting parties of the 1961 Charter is not yet fulfilled. Therefore, reforms in the appointment procedure were foreseen, but have not been implemented yet. A representative of the International Labour Organization shall be invited to participate in a consultative capacity in the deliberations of plenary sessions of the committee as well as in the sub-committees.189 Beyond that, the members of the committee and its Secretary are the only ones involved in the evaluation of the state reports and no external experts are involved in the ECSR’s work.

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According to Rule 13 of the Rules, the ECSR is supported by a secretariat, including the Executive Secretary to the committee, as well as with the administrative and other services required for the fulfilment of its duties.

6. Conclusions The comparative review of the legal framework, mandate and composition of the four Council of Europe expert bodies reveals both obvious similarities and striking differences. An overview of the legal framework, the mandate and the composition of the four expert bodies is given in Figure 8.

187 See Rule 1 of the Rules of the European Committee of Social Rights. 188 Article 25 (1) and (2) ESC. 189 Article 26 ESC.

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Legal basis

Secondary rules adopted

Rules of Procedure of the ACFC, ACFC/ INF(1998)002.

Resolution (97) 10 on the rules adopted by the Committee of Ministers on the monitoring arrangements under articles 24Framework Convention 26 of the FCNM. for the Protection Resolution CM/ ACFC of National Minorities Res(2009)3 (FCNM) amending Resolution (97) 10 with explanatory report on the monitoring arrangements under articles 2426 of the FCNM.

Expert body

39

Number of states parties

Article 26 (1) FCNM: “In evaluating the adequacy of the measures taken by the Parties to give effect to the principles set out in this Framework Convention the Committee of Ministers shall be assisted by an advisory committee, ….”

Mandate

Composition of expert body

opinions (in 18 experts relation to appointed by country-to-country the Committee work) of Ministers thematic external commentaries experts (in relation to involved only thematic work) in thematic biannual activity work reports

Substantive outputs

Figure 8: Overview of the legal framework, mandate and composition of the ACFC, the CPT, ECRI and the ECSR

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CPT

Expert body

Secondary rules adopted

European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Rules of Procedure Punishment (ECPT) of the CPT with explanatory report CPT/Inf/C(2008)1 Additional Protocols No. 1 (ETS No. 151) and No. 2 (ETS No. 152)

Legal basis

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47

Number of states parties Substantive outputs

Composition of expert body

Article 26 (1) ECPT: “The country reports, Committee shall, immediate by means of visits, observations and 47 experts examine the public statements appointed by treatment of persons (in relation to the Committee deprived of their country-to-country of Ministers liberty with a view work) to strengthening, external if necessary, the CPT standards experts protection of such (in relation to involved in persons from torture thematic work) country visits and from inhuman annual general or degrading reports treatment or punishment.”

Mandate

Comparison of the legal framework, mandate and composition of expert bodies

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ECRI

Expert body

Secondary rules adopted

Internal Rules of Procedure adopted by ECRI on 20 March 2003, Appendix to Resolution at its 30th plenary Res(2002)8 on the meeting Statute of the European Commission against Racism and Intolerance (ECRI)

Council of Europe Committee of Ministers Resolution Res(2002)8 on the Statute of the European Commission against Racism and Intolerance

Legal basis

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47

Number of states parties Substantive outputs

Composition of expert body

Article 1 Statute of ECRI: “ECRI shall be a body of the Council of Europe country reports, 47 experts entrusted with the statements and appointed task of combating declarations by national racism, racial (in relation to governments; discrimination, country-to-country the Committee xenophobia, antiwork) of Ministers Semitism and may object general policy intolerance in to the greater Europe from recommendations appointments (GPRs) and the perspective good practices of the protection external (in relation to of human rights, experts thematic work) involved only in the light of the European in thematic annual activity Convention on work report Human Rights, its additional protocols and related case-law.”

Mandate

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Legal basis

Article 25 of the European Social Charter of 1961 (ESC); Additional Protocol to the European Social Charter of 1988 extending the social and economic rights of the 1961 Charter; Protocol amending the European ECSR Social Charter of 1991 reforming the supervisory mechanism; Additional Protocol providing for a System of Collective Complaints of 1995; revised European Social Charter of 1996 with explanatory report

Expert body

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Rules of the European Committee of Social Rights

Secondary rules adopted

revised European Social Charter of 1996: 32

additional protocol of 1995: 14

amending protocol of 1991: 39

additional protocol of 1988: 36

ESC: 43

Number of states parties

Article 24 of the ESC as amended by the amending protocol of 1991: “… the Committee of Independent Experts shall assess from a legal standpoint the compliance of national law and practice with the obligations arising from the Charter for the Contracting Parties concerned.”

Mandate

activity reports

“Digest of the Case Law of the European Committee of Social Rights” (in relation to thematic work)

decisions (in relation to the collective complaints procedure)

conclusions (in relation to country-to-country work)

Substantive outputs

no external experts involved

15 experts elected by the Committee of Ministers

Composition of expert body

Comparison of the legal framework, mandate and composition of expert bodies

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In the following, some conclusions are presented that are drawn from a comparative analysis. As concerns the legal basis, three of the expert bodies (the CPT, the ECSR and the ACFC) have been established by treaty, while ECRI was firstly created by political consensus and consequently was based on a statutory resolution. The ACFC is based on a framework convention, providing each state party with a certain flexibility regarding how to implement the goals enshrined in the convention by domestic regulation. These differences in the quality of the legal bases, however, do not seem to have any major consequences in practice.

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A comparison of the mandate of the four expert bodies shows that the ACFC, the CPT, ECRI and to a certain extent the ECSR are engaged in a dialogue with member states with a view to increasing the level of compliance with the underlying human rights obligations by member states. Common to all of these expert bodies is their task to comment on the legal situation as well as on the implementation of human rights laws and policies. Two of the expert bodies (the ECSR and the ACFC), however, are tasked with monitoring compliance with a catalogue of principles laid down in the treaty establishing these bodies. The other two expert bodies (ECRI and the CPT) are each tasked with advising states on how to prevent the violation of a principle; the principle of racial discrimination and intolerance, and the prohibition of torture respectively. The main difference resulting from this disparity appears to lie in the fact that the CPT and ECRI have a larger degree of discretion on how to implement their mandate to prevent violations of human rights than the ACFC or the ECSR. When it comes to the composition of the expert bodies, the most obvious difference is the varying number of members. As of August 2011 the CPT and ECRI have 47 members, the ACFC has 18 members and the ECSR has 15  members. Thus, two expert bodies are composed of representatives of all parties, while two committees depart from this principle of state equality. This raises the question, what consequences do these different numbers have for the four monitoring systems and is it possible to decide how many experts, ideally, an expert body should comprise? Having 47  members appears, potentially, to provide for the quantity and mixture of professional backgrounds that may be needed for the monitoring task. A lower number of members could mean that the body is lacking personnel, both in number and certain areas of expertise. In addition, each member state might want to have the same stake in the respective expert body as other states have. This argument seems to be specifically relevant for ECRI, because ECRI is based on a consensus but not on a convention where states give their formal consent by way of ratification. However, some arguments speak in favour of a smaller monitoring body. Firstly, the fact that the ACFC and ECSR are smaller in size than that of the number of contracting parties may be interpreted as 76

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Comparison of the legal framework, mandate and composition of expert bodies

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an attempt to emphasise the independence of the expert members. Within a committee of 15 experts, one could argue that independence might be more easily ensured. This is due to the appointment procedure allowing for a selection from a larger list of candidates. Secondly, in larger committees, not all members might be as active as they are expected to be. Thirdly, a lower number of experts could simply be helpful to reduce the costs of the monitoring body. Thus it seems to be impossible to give advice on the ideal number of experts, as both large and smaller committees have particular advantages as well as disadvantages. The candidates for all four committees have to fulfil certain requirements to ensure their independence, impartiality and their overall eligibility for membership. Yet, it is often difficult to assess from the short curricula vitae available whether candidates satisfy the legal requirements for membership and it is almost impossible to ascertain how the members then perform in this job in practice. The diverse professional backgrounds of members might also have a direct impact on the quality of the dialogue with member states. Members of ECRI, for instance, often have a background in NGOs and this might be conducive for the substantive work of ECRI, but might have negative implications on their acceptance in the dialogue with states. The reason for this is that some states might be more reluctant to accept opinions or recommendations of experts, who might – in the states’ view – not understand the “real situation” in the country concerned. Consequently, there should be an appropriate mixture of expertise in every committee that should be guided by the expert bodies’ demands. The CPT announces regularly in its general reports what expertise would be needed when electing new members. Yet apparently the expert bodies’ needs are not always taken into consideration by the Committee of Ministers. The ECSR recommended that all the members be lawyers, if possible with a judicial function, but the Committee of Ministers still elected two members without a legal background.190 This indicates that the influence of the ECSR on the selection procedure is limited. Similarly, ECRI cannot explain its needs either and, since the appointment of experts solely lies with the member states, there are also no means available to ECRI to guarantee a certain variety of experts, for instance with regard to gender or minorities.191 A comparative review of the appointment procedures suggests that the four expert bodies face similar difficulties in this respect. The election of the expert members for the CPT, the ECSR, and the ACFC lies with the Committee of Ministers. A legal basis has been created, albeit not entered into force in

190 Authors’ interviews held with members of the ECSR’s Secretariat in Strasbourg on 12 and 13 April 2010. The interviews are on file with the authors. 191 The appointment procedures of GRETA took into account the lessons from other committees. Clear indications were given to member states as to what experts are needed and a grid of experts needed was set up.

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relation to the ECSR, and initiatives have been taken in relation to the CPT to give the mandate for electing members by the Parliamentary Assembly instead of the Committee of Ministers. This indicates that the role of the political body in selecting the independent experts is viewed critically and better results are expected if the Parliamentary Assembly gets the final say. As far as ECRI is concerned, the member states may appoint an expert directly, although the Committee of Ministers may oppose this appointment if it considers that the appointment of a member of ECRI would not be in conformity with the statute. Yet no matter who appoints the expert members, the candidates for all expert bodies are not usually interviewed or tested in any way concerning their knowledge in the respective field or with regard to their language skills. Proposals have been made to ask for a public call procedure in the member states192 and a hearing at national level, as well as in front of the Parliamentary Assembly or its relevant sub-committees.193 Such publicising and screening procedures could potentially increase the quality of the list of candidates. External experts are used to a different degree by the four expert bodies. While resorting to external experts is an established practice for the CPT, the use of external experts is virtually unknown by the ECSR. Arguments may certainly be found in favour as well as against including external experts in the monitoring system. On the one hand, such external experts are not appointed according to the procedures set out in the underlying treaty or statute, and therefore they do not necessarily meet the same criteria as members of the expert body. On the other hand, it has to be acknowledged that the monitoring bodies will often have to rely on the contribution of external experts, simply because their expertise is needed for an effective monitoring.

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All four committees under review are backed by small, albeit competent secretariats. Since none of the expert bodies was established to work on a permanent basis, the role of the secretariats cannot be underestimated. They may be assumed to have the institutional memory of the expert bodies.

192 This proposal was made by the Parliamentary Assembly of the Council of Europe with regard to the CPT. See Parliamentary Assembly of the Council of Europe 2007. 193 Kicker, Möstl and Lantschner 2011: 474.

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CHAPTER III Comparison of the monitoring procedures of the Council of Europe expert bodies 1. Comparing the monitoring procedures of the Council of Europe expert bodies

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Overview of main questions that will be addressed in this chapter Basic features of the monitoring procedure

How do the expert bodies’ monitoring procedures work? What role do political bodies play in the monitoring procedures of the expert bodies?

Periodicity of monitoring and reactive mechanisms

How long are the intervals between the expert bodies’ regular monitoring activities? What initiatives may the expert bodies take in these intervals?

Sources of information

What sources of information may be used by the expert bodies in their monitoring procedure? To what extent may NGOs, civil society and further relevant stakeholders provide input to the expert bodies’ monitoring procedures?

How do the expert bodies manage to balance Publicity, the principle of confidentiality with the potential transparency that is offered by public and transparent monitoring and confidentiality procedures? The monitoring procedures of the ACFC, the CPT, ECRI and the ECSR differ significantly from one expert body to another in many respects. This chapter aims to offer insight into some of the most essential aspects of each supervisory system and to make clear what makes each body distinct from another. However, attention will also be drawn to noteworthy similarities of the monitoring procedures. To this effect, the basic features of the four monitoring procedures will be described in a first step to explain the exact working method of each

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monitoring system. This analysis starts with an outline of how the expert bodies’ reports and resulting recommendations are drafted, but also includes a presentation of the role of political and other Council of Europe bodies in each supervisory system. It is assumed here that the involvement of political bodies – mainly the Committee of Ministers, and in the case of the ECSR also the Governmental Committee – in the human rights supervisory system could on the one hand have the advantage that a state may take criticism by its peers more seriously than assessments by expert bodies that, although independent, may not be perceived as having the same understanding of the “real world”. On the other hand, it has to be acknowledged that giving political bodies a stake in what is essentially perceived as an independent monitoring mechanism bears the risk of restricting the independence of the expert body, or at least of watering down their assessments. Therefore, the role and influence of political bodies in the Council of Europe monitoring systems will be described where applicable. Attention will also be drawn to existing contact and collaboration with further international bodies active in the respective field of human rights. Subsequently in this chapter, the periodicity of monitoring will be subject to examination. The CPT aside, the monitoring bodies break their monitoring activities down into monitoring cycles. These may either focus on selected issues or cover all aspects of their mandate, and are carried out with regard to all member states. The notion “cycle” encompasses the thematic range of the monitoring determined by questionnaires or selected human rights treaty provisions on which the states have to base their reports; cycle, however, also describes the time span between the start and the completion of this monitoring in all member states. The CPT is obliged to carry out periodic visits in all member states which also lead to monitoring rounds. The focus, however, and the time span from one on-site inspection to the next, may vary between states. It is important for human rights to be monitored at regular intervals in order to keep up a permanent dialogue between the expert body and the state authorities. However, a dialogue might also stagnate, or might be hampered by a certain fatigue on the side of the member states, brought about by continuing the sometimes burdensome efforts of reporting and responding. Certainly, this does not necessarily hold true for the expert bodies’ dialogue with all countries, but still raises the question of whether the Council of Europe bodies have at their disposal the proper means to continue their monitoring activities in an effective manner in cases where a dialogue has stagnated. Hence, it is important to consider the initiatives that may be taken by the expert bodies outside of the routine of periodic monitoring in a given monitoring cycle. What reactive mechanisms to counter monitoring fatigue are available or have been developed by the monitoring bodies individually? In a next step, the sources of information used by the expert bodies in the monitoring procedure will be discussed. It is assumed here that the qual80

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ity and reliability of the Council of Europe supervisory systems heavily depend on the availability of information, the quality of the information gained, and the question of whether the information is sufficiently up to date. If reports submitted by states are the only source available, the information at hand might often provide an inadequate basis for the assessment of a member state’s compliance. This is even more so if state reports are unsatisfactory with regard to their contents or if they are constantly delayed. Since the Council of Europe expert bodies are by no means the only actors that actively follow the human rights situation in member states, it will also be determined how the knowledge of NGOs, civil society, potential beneficiaries, and further stakeholders that are able to provide a valuable input from the bottom up is used in the monitoring procedure of the ACFC, the CPT, ECRI and the ECSR. It is assumed here that direct contacts with relevant stakeholders potentially help these expert bodies to understand the human rights situation on the ground from various perspectives and to keep track of newly emerging human rights laws or practices. Finally, the issues of publicity, transparency and confidentiality will be discussed in this chapter for each expert body. The publicity of monitoring procedures, starting with the publication of monitoring results, but also including, for example, annual reports by the expert bodies contributes to the transparency of human rights supervision systems. Disseminating the findings of the expert bodies among interested stakeholders helps to raise awareness of the human rights topics at stake. A transparent communication of monitoring results could create spin-offs and positive side effects for the expert bodies’ monitoring work and might thus contribute to the preventive function of human rights monitoring mechanisms. Monitoring human rights in a publicly accessible and transparent way can thus help to improve the efficiency of monitoring systems. It has to be acknowledged, however, that the subject matter and the sensitive information regarding Council of Europe member states imply that both human rights monitoring bodies and the states concerned may have a well-grounded interest in keeping their dialogue confidential, at least for some time. Firstly, in order to protect sources of information and secondly, to avoid premature conclusions as certain findings need to be checked in more detail before going public.194 Thus a “period of confidentiality” may help encourage compliance by states in a co-operative manner and might increase the effectiveness of the monitoring procedure in the end. Equally, however, the question will also be posed as to how the expert bodies manage to balance the principle of confidentiality with the potential that is offered by public and transparent monitoring procedures.

194 Kicker, Möstl and Lantschner 2010.

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2. ACFC 2.1. Basic features of the monitoring procedure The FCNM foresees a state reporting system to monitor how the articles of the convention are implemented by the states parties. The states are thus required to submit reports based on outlines, which are developed by the ACFC for each monitoring cycle and are adopted by the Committee of Ministers. These outlines define the structure of the reports that needs to be followed by the states. The state reports contain information on legislative and other measures which aim to effectively put the principles of the FCNM into practice. In line with the principle of effective participation enshrined in Article 15 FCNM, the drafting of state reports should involve a process of consultation with minority and non-governmental organisations. It has now become a common practice that such organisations submit alternative reports or information.

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Once the ACFC receives the state report, the expert body examines the legislation concerning minorities, and the related practice as reported by the states, and consults further sources of information. The ACFC may also conduct country visits, meet with government officials, parliamentarians, representatives of minorities, NGOs, human rights specialised bodies and other relevant interlocutors. Subsequently, the ACFC adopts country-specific opinions, which are transmitted to the state concerned for commenting. States parties have an opportunity to comment on this opinion within four months. In preparing their response, they may choose to hold consultations with minority and other non-governmental organisations. On the basis of the ACFC’s opinion and the comments made by the state concerned, the Committee of Ministers adopts a resolution including recommendations aimed at improving the protection of minorities in the state under review. During the preparation of this resolution, other states may express themselves on the situation in the state concerned. Formally, and according to Article 24 (1) FCNM, the Committee of Ministers is thus the main stakeholder in the monitoring system of the FCNM, while the ACFC has only an advisory function according to Article 26 (1) FCNM.195 In practice, however, the country-specific opinions of the ACFC have become the most important and appreciated document in the whole monitoring process and the Committee of Ministers generally follows the recommendations made by the ACFC. The expert body’s opinions are even used by further international institutions. Although not explicitly referred

195 Article 24  (1) FCNM provides that the Committee of Ministers “shall monitor the implementation of the FCNM” and Article 26 (1) FCNM clarifies that “[the Committee of Ministers] shall be assisted by an advisory committee”.

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to very often, the ACFC’s opinions serve as a basis for the European Commission of the European Union when drafting accession candidates’ progress reports.196 The High Commissioner on National Minorities (HCNM) of the Organization for Security and Co-operation in Europe (OSCE), likewise, is of the opinion that “particular attention should be paid to the contribution of the ACFC which plays an important role in interpreting minority rights standards”.197 Most importantly, the European Court of Human Rights has recently referred to the opinions of the ACFC in providing the reasoning for its judgments in the cases of D. H. v. the Czech Republic and Oršuš v. Croatia.198 This broad acceptance is conclusive evidence of the quality and accuracy of the opinions of the ACFC.199 When monitoring the protection of minorities, the ACFC pursues good working relations with the Committee of Experts of the European Charter for Regional or Minority Languages, ECRI, the HCNM within the OSCE and the EU Agency for Fundamental Rights.200

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2.2. Periodicity of monitoring and reactive mechanisms According to Article 25  FCNM, the first state report has to be submitted within one year upon entry into force of the FCNM by each state party. Subsequently, reporting is organised in five-year cycles.201 Therefore, the FCNM entered into the third monitoring cycle in 2009. In the past, the ACFC was confronted with delayed submissions of the state reports. Therefore, the expert body adopted an informal procedure to stimulate timely submission of state reports and it has now become a well-established practice of the ACFC that in case of a delay in the reporting obligations, the state concerned receives a reminder after six months, a letter from the ACFC President after one year, and a letter by the Council of Europe Secretary General after 18 months. To complement this informal procedure, the Committee of Ministers authorised the ACFC to start the monitoring procedure once a state report is 24 months overdue.202 The question remains whether an effective monitoring may still be conducted without a respective report being submitted by the state concerned.

196 This was discussed at the Conference on Creating Synergies and Learning from Each Other: Strengths and Weaknesses of Council of Europe Expert Bodies Monitoring Human Rights, Graz, 18-19 June 2010. See also Commission of the European Communities 2001: 18; as well as European Commission 2005: 21. 197 OSCE High Commissioner on National Minorities 2005. 198 European Court of Human Rights 2007 and 2010a. 199 De Beco and Lantschner 2012: 117. 200 Ibid: 113. 201 Rule 21 of Committee of Ministers 1997a. 202 See Committee of Ministers 2003a.

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In order to keep up discussions on the measures that need to be taken to improve minority protection, so-called “follow-up meetings” with the participation of the ACFC are organised in states for which a monitoring cycle has been completed. These follow-ups serve the purpose of bringing together all the actors concerned with the implementation of the FCNM, both governmental and non-governmental, and examining ways to put in practice the results of the monitoring procedures. For cases in which a disconcerting development takes place in a specific country, but none of the contacts foreseen by the regular monitoring cycle are upcoming in due time, the ACFC has developed an ad hoc contact procedure, based on Rule 35 of Resolution (97) 10. The ACFC tried to find a way which allowed for quick reactions to establish whether a development in a member state is serious enough to propose to the Committee of Ministers to request an ad hoc report. An ad hoc contact is preceded by a consultation of the Bureau of the ACFC with the working group dealing with the respective country as well as the “national” member concerned. The ACFC Bureau decides whether the president should write a letter to the state party concerned, asking for clarifications on the issue. At the subsequent plenary meeting, the ACFC is informed about the correspondence and makes a recommendation as to whether the request for an ad hoc report should be proposed to the Committee of Ministers.203 So far, the ACFC has not yet used this possibility in practice, although the committee already considered resorting to it once.204

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2.3. Sources of information The primary source of information used for the monitoring procedure of the ACFC are the reports submitted by the states. The ACFC, however, may also gather information from other sources such as minority organisations, national and international NGOs, as well as other international bodies dealing with minority issues.205 Rule 30 of Resolution (97) 10 stipulates that persons belonging to national minorities and their organisations are free to submit information to the ACFC either on specific aspects of the implementation of the FCNM or on its overall implementation. In practice, NGOs and minority associations, with support from international NGOs such as minority rights groups, have quite often made use of this opportunity and provided the ACFC with well-researched shadow reports. They have proven to be essential to the ACFC in order to effectively fulfil its monitoring tasks.206 203 Korkeakivi 2006: 260ff. See also Advisory Committee on the Framework Convention for the Protection of National Minorities 2006b. 204 Kicker, Möstl and Lantschner 2010. 205 Cf. rules 30 and 31 of Committee of Ministers 1997a. 206 It should be highlighted that NGOs also play an important role in encouraging the ratification of the FCNM for those states that have not yet done so.

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Rule 31  regulates that the ACFC is allowed to take an active approach in seeking information and may directly address persons or organisations with the invitation to provide information on the actual practice in the respective countries. Formally, the ACFC may only seek information in this manner after having notified the Committee of Ministers of its intention to do so. In practice, however, the Committee of Ministers has given its authorisation in this respect for all the supervision cycles. A further important source of information for the ACFC monitoring procedure are the committee’s country visits, during which the experts meet with government officials, parliamentarians, representatives of minorities, NGOs, specialised bodies on human rights and other relevant interlocutors. These country visits are foreseen by Rule 32 of Resolution (97) 10, for which an authorisation by the Committee of Ministers is required and has been given for all supervision cycles. To conduct country visits, the ACFC, however, still needs the invitation by the state concerned. These visits provide the ACFC with an excellent opportunity for engaging in direct contact with various sources and therefore constitute a crucial element in the overall monitoring process, especially from the perspective of upholding a constructive and continuous dialogue.

2.4. Publicity, transparency and confidentiality

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The state reports on the implementation of the FCNM are automatically made public and are posted on the website as the Council of Europe receives them. The following, second, stage of the monitoring procedure is where the ACFC examines the state reports and the alternative sources of information mentioned above, and is entirely confidential. According to a recent amendment to paragraph 26  of Resolution (97) 10, the ACFC’s opinion is made public four months after transmission to the state party concerned, unless the “State Party submits a reasoned objection in writing to the Secretariat”.207 Until this amendment to paragraph 26, the opinion of the ACFC was made public together with the resolution by the Committee of Ministers containing conclusions and recommendations to the respective state on the implementation of the FCNM which is made public upon its adoption. In the past, this rule resulted in a quite long period of confidentiality. A number of states, however, had agreed to the publication of the ACFC’s opinion once they had submitted their comments, some even earlier. By advancing considerably the publication of the opinion, the amendment to paragraph 26  of Resolution (97) 10  contributes to greater transparency and publicity of the monitoring process.

207 Committee of Ministers 2009.

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By regularly publishing meeting reports and activity reports, the ACFC further aims to inform the wider public about its work and thus to make its work transparent. Figure 9: The ACFC’s monitoring procedure Steps of the dialogue taken within a monitoring cycle ACFC

Distributes outlines for state reports which are adopted by the Committee of Ministers.

State party

Submits a state report on the implementation of the FCNM to the ACFC. Evaluates the measures taken by the state to give effect to the principles set out in the FCNM. May request additional information from the state.

ACFC

May conduct a country visit after an invitation by the state and may organise meetings with government officials, parliamentarians, minorities, NGOs, national human rights institutions, etc. Adopts its opinion and transmits it to the state party concerned. May comment on the ACFC’s opinion.

State party

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ACFC

Committee of Ministers

May publish the ACFC’s opinion and the state’s comments at this stage. The ACFC’s opinion is made public four months after the transmission to the state party, unless the state party submits a reasoned objection in writing. Adopts a resolution containing conclusions and recommendation to the state party on the implementation of the FCNM. The state’s comments and the Committee of Ministers’ resolution are made public. May follow up on the results of the monitoring.

ACFC

May conduct an ad hoc contact procedure between the regular monitoring cycles.

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3. CPT

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3.1. Basic features of the monitoring procedure The CPT’s monitoring procedure can be described as being preventive and proactive. Article 2  ECPT stipulates that the CPT shall carry out periodic visits, as well as ad hoc and follow-up visits to all member states. The committee thus has the unique mandate to undertake its own fact-finding by way of on-site inspections. Thus based on reports of international governmental and non-governmental organisations or communications of individuals, the CPT may choose where to go and whom to interview. The findings and observations of a delegation made during each visit, followed by recommendations, are formulated in a draft report which is discussed and adopted by the plenary of the CPT. The final report is then submitted to the state concerned. These country reports give a detailed account on the situation of persons deprived of their liberty in the places inspected, from which conclusions are also drawn regarding certain areas of concern which may also be pertinent in other places not visited. If ill-treatment is found or likely to occur, the CPT recommends appropriate actions to remedy the critical situation, which might require legal or administrative reform, or investment in improving material conditions, but primarily changing attitudes vis-à-vis detainees and raising awareness that changes are needed in practice.208 The committee engages in an “ongoing dialogue” with the state authorities, in which the states are obliged to deliver a written response commenting on the CPT’s report and informing the expert body about the steps taken toward implementation of its recommendations.209 Previously, states were requested to submit a preliminary response within six months and a final response within one year but this procedure has changed and now one response within six months is required, apart from certain instances in which a shorter reporting period is indicated in the CPT’s report.210 This is the case if immediate observations are made at the end of a visit which require remedies by the state in a shorter period of time. Academic assessment attested that the CPT reports may stimulate an “… examination of existing practice which may lead to a debate domestically on issues which have previously been accepted uncritically”.211 Follow-up visits foreseen in Article 7 ECPT allow the CPT to intensify the dialogue with the state concerned in specific areas of concern and to encourage the implementation of its recommendations. The political body of the Council of Europe, the Committee of Ministers, does not have a formal role in the monitoring work of the CPT, nor is the 208 209 210 211

Cf. Murdoch 2006: 38. Cf. Kicker 1999: 13. Cf. Kicker 2012: 60. Morgan and Evans 1999: 159.

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committee’s output approved by it. Nonetheless, the CPT’s annual general report is submitted to the Committee of Ministers, followed by a hearing with the CPT’s President. However, in the case of a public statement, the ultimate means of the CPT to alert the public of a lack of co-operation on the side of a member state, the Committee of Ministers could engage politically in a dialogue and impose pressure on the respective state to remedy the situation.212 This was not systematically and consistently the case when the CPT issued its current total of six public statements in relation to only three states. However, the Commissioner for Human Rights could also raise certain urgent concerns raised in CPT reports and public statements in his dialogue with member states. The CPT has therefore invited the Commissioner for Human Rights to the CPT plenary meeting at regular intervals for discussion and the respective secretariats have started to exchange information.

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While the preamble of the ECPT clarifies that the committee is not equipped with judicial or quasi-judicial power – given its preventive and thus complementary role to the European Court of Human Rights – the CPT is also not bound by the jurisprudence as developed by the Court.213 While the Euro­ pean Court of Human Rights attempts to find solutions to the conflict on a legal level, the CPT rather tries to avoid them on a practical level.214 The relation between the CPT and the Strasbourg Court is thus a “two-way relationship”. On the one hand the decisions of the Court may guide the CPT, and on the other hand the findings of the CPT may stimulate petitions and on occasion may directly influence the application of Article 3  ECHR by the Court.215 A closer co-operation between the CPT and the European Court of Human Rights can be observed by the common practice of inviting the president and some judges of the Court to the CPT’s plenary meeting once a year to discuss certain issues of common interest.216 With the Optional Protocol to the United Nations Convention against Torture (OPCAT), which entered into force in 2006, the European states party to this protocol have accepted the preventive visits of the newly established Subcommittee on the Prevention of Torture (SPT), with an almost identical mandate to that of the CPT. Consequently, this results in overlapping working fields which demand close co-operation between the two bodies in order not to get into each other’s way.217

212 Cf. Kicker 2012: 63. 213 Cf. Morgan and Evans 2001: 59. 214 Cf. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 1991: paragraphs 2 and 3. 215 Cf. Morgan and Evans 2001: 59. 216 Cf. Kicker 2012: 65. 217 Cf. Kicker 2012: 67.

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3.2. Periodicity of monitoring and reactive mechanisms According to Article 7  ECPT the periodic inspections are carried out on average every four to five years by delegations composed of at least two but usually more CPT members, who are regularly accompanied by members of the committee’s secretariat, experts and interpreters. Moreover, “if required in the circumstances”, the committee may organise extra visits in addition to the periodic visits. In practice these are follow-up visits to institutions previously subject to recommendations and ad hoc visits, which are a very effective instrument to react to disturbing information. Such visits may last several days. As laid down in Article 8 (1) ECPT, the committee must notify the visit to the state concerned, but does not have to specify the period between notification and the actual visit, which, in exceptional circumstances, may be carried out immediately after notification. A reactive mechanism in case of non-compliance of a member state with its obligation to co-operate effectively with the CPT, which encompasses the implementation of its recommendations, is provided by Article 10 (1) and (2) ECPT, which enables the CPT to make a public statement. In this case the CPT lifts confidentiality and publishes information which gives evidence of the state’s continuing failure to take measures to address the CPT’s concerns. This decision must be taken with a majority of two thirds of its members. However, so far this right has rarely been used by the committee.218 A mechanism to get into contact with national authorities in between the regular monitoring cycles that is not explicitly mentioned in the ECPT are the so-called “high-level talks”, which aim at addressing difficulties in the dialogue with state representatives at the highest political level including the president of the state, ministers and state secretaries. These talks are usually organised by the Bureau of the CPT.219

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3.3. Sources of information The CPT’s principal source of information is the information gathered by means of on-site visits in the Council of Europe member states. The visiting delegations of the CPT have the unique opportunity of unlimited access to detention places and consequently the main sources of information for the CPT are first-hand interviews with persons deprived of their liberty, discussions with personnel, as well as all documents relevant for the body to carry out its task. Under the co-operation principle, laid down in Article 8 (2), (3) and (4) 218 To date, only six public statements have been issued: two in respect of Turkey (1992 and 1996), three in respect of the Russian Federation in relation to the North Caucasian region (2001, 2003 and 2007), and the most recent one in respect of Greece (2011). 219 Cf. Kicker 2012: 64.

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ECPT, the CPT delegations are granted unlimited access to the territory of the state, and unrestricted travel within its borders. Further, they also have the right to unrestricted access to the places where people are deprived of their liberty, to consult documents such as medical records, to collect information relevant for the committee’s work, and to conduct interviews with detainees or other persons in private. During the inspection the delegation’s main interest lies in the assessment of signs of intentional ill-treatment of detainees by the staff, as well as inter-detainee violence. Moreover, the material conditions of detention play a decisive role in the evaluation of the detention centre concerned. These conditions include, for instance, the level of occupancy and the size of the cells, the level of hygiene, the regime relating to vocational training and education, as well as out-of-cell activities, including sports. The expert body also pays particular attention to the crucial issues of health care provided, contact with the outside world; the use of means of restraint, discipline and isolation; staffing issues and complaints; as well as inspection procedures.220 Although the facts gathered during the on-site visits represent the main source of information, additional information contained in the states’ responses together with information received from NGOs constitute other sources for the CPT’s assessments.

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As regards co-operation with other bodies, such as national NGOs, national monitoring bodies or other representatives of civil society, it appears that the CPT is not as inclusive as the other Council of Europe expert bodies because of the dominant principle of confidentiality. Under the surface, however, this committee is less exclusive than it may seem, as it regularly receives correspondence from NGOs and individuals which are collected in a list of “communications received” and responded to after decisions on how to react are taken by the Bureau in urgent matters or by the plenary as a whole. The secretariat also contacts relevant national monitoring bodies routinely before planning a visit and any delegation meets representatives of these bodies during its visits, usually at the beginning of a visit, so that the information gained in these meetings can influence the visiting programme.

3.4. Publicity, transparency and confidentiality The two vital principles of ensuring that the expert body can access information in the countries concerned are the principles of co-operation and confidentiality. While Article 3  ECPT obliges the states and the committee to co-operate in any necessary form and specifies the duties of the state to facilitate the work of the CPT, Article 8 also stipulates that the information gathered by the committee in relation to a visit shall be confidential unless the state concerned authorises the publication of a visit report. The explana220 Cf. Kicker 2009: 202.

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tory report to the ECPT sheds more light on this provision explaining that “[the] purpose of the committee is not to condemn states, but, in a spirit of co-operation and through advice, to seek improvements, if necessary, in the protection of persons deprived of their liberty”.221 The idea behind this wellestablished principle of confidentiality underlying the CPT’s work is that this obligation imposed on the expert body is important for winning co-operation with member states, thus securing the effectiveness of the monitoring procedure. In actual fact, however, from the beginning the states were willing to publish many parts of the dialogue with the CPT, mainly the CPT reports and their written responses, and made them available to the public.222 In respect to improving the effectiveness of monitoring, the principle of confidentiality certainly has positive effects on the one hand. On the other hand this principle might have negative consequences in the case of a party being reluctant to cooperate with the committee or refusing to acknowledge any recommendations for improvement of a situation. In cases of a consistent lack of co-operation and non-implementation of its recommendations, the CPT has, as previously mentioned, the possibility to lift confidentiality and issue a “public statement”. Figure 10: The CPT’s monitoring procedure Steps of the dialogue taken within a monitoring cycle Carries out periodic state visit with on-site inspections. CPT

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State party

CPT

May issue immediate observations after a country visit. Adopts the final country report including recommendations on appropriate actions to remedy the unsatisfying situation and sends it to the state party. Delivers a written response commenting on the CPT’s report and informing the expert body about the steps taken to implement its recommendations. May conduct an ad hoc visit or follow-up visits to intensify the dialogue with the state concerned in specific areas of concern and to encourage the implementation of its recommendations in between regular monitoring cycles. May hold high-level talks or issue a public statement in case of non-co-operation.

221 Cf. paragraph 20 of the Explanatory Report to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 2002. 222 Cf. Murdoch 2006: 44; also see Kicker 2009: 202.

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4. ECRI 4.1. Basic features of the monitoring procedure

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To achieve the goal of combating racism, racial discrimination, xenophobia, anti-Semitism and intolerance in Europe, ECRI closely examines the situation concerning manifestations of racism and intolerance in each of the Council of Europe member states by reviewing documents and reports and conducting visits to states. The findings of this country-by-country monitoring are drafted into state reports by the expert body, which provide a source of inspiration and impetus for both national authorities and for civil society actors. Thus, on the one hand, these reports offer detailed proposals for change in the respective country, and on the other hand open up a space for reflection, especially for NGOs.223 ECRI’s findings are published along with recommendations on how the country concerned should deal with the problems identified in country reports. The state has the opportunity to publish its position in an appendix to the ECRI report. In this way the state authorities have the possibility to emphasise their viewpoints and explain their position on the situation concerned.224 None of ECRI’s outputs are approved by any political body. However, ECRI has made continuing efforts to inform the political bodies of the Council of Europe about its activities and recommendations. The Committee of Ministers, as an intermediary, is responsible for sending the country-specific reports to the governments in question before their publication. Beyond that, ECRI is only required to inform the Committee of Ministers periodically on the results of its work by drawing up an annual activity report which is made public.225 Particular emphasis is put on an effective communication with the Committee of Ministers and the Parliamentary Assembly. ECRI also co-operates on a regular basis with the Council of Europe Commissioner for Human Rights, the ACFC and the Committee of Experts on Roma and Travellers.226 ECRI may even include reports of other Council of Europe expert bodies in its findings. Indeed, Article 6 (5) of the ECRI Statute encourages the expert body to seek opinions and contributions from other Council of Europe bodies which are concerned with themes relevant for its work. This interchange appears extremely important in order to preserve a coher223 Cf. Kelly 2004: 136ff. 224 This was the case for the second, third and fourth report on Austria. The reports are available on the expert body’s website: www.coe.int/t/dghl/monitoring/ecri/ Country-by-country/Austria/Austria_CBC_en.asp. 225 Cf. Article 6 (6) and 7 of ECRI’s Statute. 226 The Committee of Experts on Roma and Travellers (MG-S-ROM) was established upon the suggestion of the European Committee on Migration; see the new terms of reference adopted by the Ministers’ Deputies at their 1032nd meeting in Strasbourg on 9 July 2008, Doc. MG-S-ROM(2008)2.

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ent overall approach within the Council of Europe to the issue of combating racism.227 The placement of ECRI, the ACFC and the CECL under the same directorate as a result of the reorganisation of the Secretariat supports this close co-operation.228

4.2. Periodicity of monitoring and reactive mechanisms ECRI’s country-by-country monitoring is conducted in five-year cycles covering nine to 10 country visits per year. However, ECRI recently introduced a so-called “interim follow-up procedure” in between the regular monitoring cycles. For this purpose, debriefing meetings are held at the end of each country visit, during which three important topics, for which progress is measurable and feasible within a two-year period, are chosen together with the state’s representatives. The state concerned is then asked to submit a progress report of two to five pages on these three topics in between the regular supervision cycles.229 ECRI announced that it will adopt conclusions on these progress reports that will be included in ECRI’s annual reports. Although this interim follow-up process is a comparatively modest one and still an experiment for ECRI, this procedure may help to keep selected issues of racism and intolerance high on the agenda in member states, even in between the regular monitoring cycles.

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The monitoring procedure of ECRI does not foresee any ad hoc monitoring, but ECRI has the possibility of making statements on problematic events or situations in member states as an urgent reaction mechanism. The commission has so far issued statements with regard to the Russian Federation, Italy, Switzerland and France.230 In order to provide for a quick response, such statements may also be issued by the ECRI Bureau instead of waiting for the whole committee to assemble. ECRI does not regard such statements as a sanction, but as a means to assist states in identifying implementation gaps.

4.3. Sources of information In order to reach a comprehensive examination of the national human rights situation, ECRI makes use of a variety of written sources, such as 227 Cf. Kelly 2004: 111. 228 See Chapter I for details about the reform of the Secretariat’s structure. 229 All of ECRI’s reports issued in the course of the fourth reporting cycle include three interim follow-up recommendations. 230 See European Commission against Racism and Intolerance 2006, 2008, 2009b and 2010. All statements are available on ECRI’s website: www.coe.int/t/dghl/monitoring/ecri/ activities/Statements_en.asp.

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documents produced by the Council of Europe or other intergovernmental organisations; documents produced by the national authorities of the country in question; by local, national or international NGOs; as well as studies, research and press articles.231 During its state visits, ECRI directly consults national authorities, relevant NGOs, representatives of minorities, independent experts and any other qualified persons who can provide information on certain issues of interest to the commission. NGOs have the right to come up with questions regarding the issues ECRI is concerned about and ECRI itself contacts NGOs for scheduling meetings during its country visits. An exchange of information with international expert bodies such as the Committee on the Elimination of Racial Discrimination (CERD), the Office for Democratic Institutions and Human Rights (ODIHR), and the European Union Agency for Fundamental Rights (FRA) is also a common practice.

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4.4. Publicity, transparency and confidentiality In general, ECRI pursues a very open dialogue with the Council of Europe member states in the course of its monitoring procedure. The level of confidentiality, however, depends on the stage of the monitoring procedure. The commission’s plenary meetings, working documents, deliberations as well as the expert body’s dialogue with national authorities about the first draft of ECRI’s state report is characterised by a high level of confidentiality. ECRI’s findings, along with the body’s recommendations on how each country might deal with the problems identified, are collected and formulated into a draft report classified as confidential which is first transmitted to the national authorities concerned for a confidential dialogue. ECRI’s final report is reviewed in the light of this dialogue and after its adoption is transmitted to the government of the member state concerned through the intermediary of the Committee of Ministers. The official report by ECRI is then made public, unless the government in question is expressly against its publication.232 The publication of ECRI’s country-by-country reports is an important step in the course of the dialogue between ECRI and the national authorities with a view to identifying solutions to the problems of racism and intolerance.

231 Cf. European Commission against Racism and Intolerance 2009a: 6. 232 See Article 11 (2) and (3) of ECRI’s Statute.

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Figure 11: ECRI’s monitoring procedure Steps of the dialogue taken within a monitoring cycle Gathers information from national authorities, civil society and further sources.

ECRI

Carries out a monitoring visit to the state concerned, where it meets with governmental and non-governmental partners. Agrees with the state party on three important topics for the interim follow-up process. Adopts a draft country report on the state party, including recommendations on how to fight racism and discrimination.

State party ECRI

May comment on the draft report. Revises its draft report in light of the comments by states. Only factual mistakes are taken into account.

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Adopts the country report. State party

May publish their viewpoints in a separate appendix to the expert body’s report.

ECRI

Sends the final report to the government concerned through the intermediary of the Committee of Ministers and publishes the final report.

State party

Submits a progress report regarding the three important topics agreed upon with ECRI for the interim follow-up process in between the regular monitoring cycles.

ECRI

Adopts conclusions on the interim follow-up process in its annual reports. May make statements on problematic events or situations in the state concerned.

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5. ECSR 5.1. Basic features of the monitoring procedure The ECSR’s monitoring procedure is based on reports submitted by states. The expert body prepares questionnaires for the states for drawing up their national reports. In these so-called “forms”, the ECSR asks the state concerned to provide information on specific articles of the Charter and requests information on the legal framework, practice and pertinent figures and data allowing the ECSR to assess whether these provisions are applied in the state concerned. The forms for the national reports are still adopted by the Committee of Ministers and not by the ECSR itself. The ECSR examines the state reports and decides whether or not the human rights situations in the countries concerned are in conformity with the Charter in a quasi-judicial manner. These decisions, called “conclusions”, are published every year. When drawing up this decision, the ECSR may request additional information and clarification directly from states, or may organise meetings with representatives of a state for this purpose.233

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After the ECSR has published its conclusions, the Governmental Committee, composed of representatives of the states parties to the ESC and assisted by representatives of the European social partners participating as observers, considers the states’ follow-up to the expert body’s decisions of non-compliance. During this stage of the procedure, the state concerned may explain the measures already taken or intended to comply with the Charter, or detail the plans for further action to remedy the situation. If the Governmental Committee considers that the measures taken by the state are unable to remedy a violation, it may propose that the Committee of Ministers address a recommendation to the state concerned. The Committee of Ministers may thus intervene in the last stage of the process by adopting a recommendation requesting the state concerned to bring national practice into conformity with the Charter. Resolutions addressed to all states parties close each supervision cycle.234 As a peculiarity among the four expert bodies, international and national organisations of employers and trade unions, as well as international NGOs, are entitled to lodge collective complaints with the ECSR in accordance with the second additional protocol to the ESC. Once a complaint is lodged, it is examined by the ECSR which declares whether or not the complaint is admissible. If admissible, the committee takes a decision on the merits of the complaint and forwards it to the parties and to the Committee of Ministers in a report. Based on the reaction of the state party to the decisions of the ECSR, the 233 Cf. Article 24 (3) of the ESC as amended by the 1991 amending protocol. 234 These resolutions are available on the website of the ESC: www.coe.int/t/cm/ adoptedTexts_en.asp#P89_8764.

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Committee of Ministers adopts a resolution and, if necessary, recommends certain measures to establish compliance with the Charter. This complaints procedure is also a means of encouraging the participation of labour and nongovernmental organisations. The purpose of the establishment of the collective complaints system was to open avenues for interest groups to alert the expert body to possible violations of the obligations under the Charter. This has significantly increased the efficiency of the ECSR’s monitoring procedure.

5.2. Periodicity of monitoring and reactive mechanisms The ECSR’s monitoring system based on national reports is organised in supervision cycles. According to a decision by the Committee of Ministers, the provisions of both the 1961 Charter and the revised Charter are divided into four thematic groups: employment, training and equal opportunities (Group 1); health, social security and social protection (Group 2); labour rights (Group 3); and children, families, migrants (Group 4).235 States are required to report on the provisions relating to one of the four thematic groups on an annual basis. As a result, each provision of the Charter is reported on once every four years. There is no legal basis for the ECSR to conduct further monitoring activities between the monitoring cycles. Rule 21 of the ECSR’s Rules of Procedure, however, provides for the possibility of meeting with state representatives to request additional information or clarification during the supervisory cycle. In addition to and outside the monitoring process, a number of seminars and meetings are organised in member states in between the regular monitoring cycles to explain, for instance, the substance of the rights guaranteed by the (revised) Charter, or to provide states which have ratified the revised ESC to report on the non-accepted provisions as foreseen in a decision by the Committee of Ministers.236

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5.3. Sources of information In respect to the ECSR’s monitoring procedure state reports make up one of the main sources of information. The Charter provides for an explicit right of social trade unions to comment on the national reports and in several countries they are associated with the elaboration of the report. NGOs can also make observations or add comments to these reports. In the past, the ECSR has been criticised for using only a small number of non-official sources and drawing mainly on the official sources.237 The collective complaints procedure 235 Cf. Committee of Ministers 2006b. 236 See Committee of Ministers 2002b. 237 Cf. Alston 2005: 54. In contrast, the Executive Secretary of the ECSR, Régis Brillat, commented that the committee today is frequently criticised for using too many sources.

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may also be regarded as a source of information, since the European Trade Union Confederation (ETUC), Business Europe (former UNICE), or the International Organisation of Employers (IOE) may provide information to the ECSR in this procedure. In practice, however, they do so only exceptionally. Figure 12: The ECSR’s monitoring procedure Steps of the dialogue taken within a monitoring cycle ECSR

Develops forms for state reports which are adopted by the Committee of Ministers and sent to the state concerned.

State party

Submits a state report on the implementation of the (revised) ESC to the ECSR. Examines the state reports, the observations from social partners, NGOs and other sources

ECSR

May request additional information and clarification directly from states or may organise meetings with representatives of a state for this purpose.

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Concludes whether or not the state’s law and practice is in conformity with the legal obligations deriving from the Charter; these conclusions are published annually. Governmental Committee

Considers the reaction to the expert body’s decisions of non-compliance, with the European social partners participating as observers.

State party

Shall explain the measures already taken or intended to comply with the (revised) ESC, or detail the plans for further action to remedy the situation.

Governmental Committee

Committee of Ministers

May propose that the Committee of Ministers address a recommendation to the state concerned if it considers that the measures taken by the states parties are unable to remedy a violation. Adopts a resolution requesting all the states parties to bring national law and practice into conformity with the (revised) ESC. May adopt an “individual” recommendation in respect of a state party.

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5.4. Publicity, transparency and confidentiality According to Rule 15 of the ECSR’s rules the sessions and deliberations of the committee shall be held in private. Therefore, the committee’s sittings dealing with state reports are closed and the expert members are obliged to keep the discussions confidential. All working documents are destined for the use of the committee only and may not be made public except, in very exceptional circumstances, with the agreement of the ECSR’s President.238 The state reports, the comments by social partners and/or NGOs, the ECSR’s conclusions, the annual report of the Governmental Committee and the resolutions by the Committee of Ministers are published on the website of the Council of Europe. The committee’s hearings on complaints from the collective complaints procedure are held publicly but, obviously, not the deliberations.239 However, a major shortcoming with regard to the publicity of the ECSR’s work is the fact that four months have to elapse before this body’s decision on the merits of a collective complaint is made public. In practice, this rule implies that not even the state concerned may publish the decision prior to this date, which has particular disadvantages for the complaining organisation; paradoxically, it cannot actively use the monitoring body’s decision in its work until four months after receiving the decision.

6. Conclusions

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When comparing the basic features of the four monitoring systems, the most striking difference seems to be that the ACFC and ECSR work on the basis of a reporting system and thus process information provided by states, while the CPT and ECRI do not receive reports from states but produce their monitoring reports on the basis of information gathered by themselves. However, each of the two systems allows the expert bodies to engage in a dialogue with the Council of Europe member states. An overview of this dialogue is given in Figure 13.

238 See European Committee of Social Rights 2011: Rule 15. 239 Cf. Alston 2005: 61.

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Monitoring: Phase 3

Monitoring: Phase 2

Monitoring: Phase 1

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ACFC

ECSR

ACFC

ECSR

Process continues...

Possible adoption of new or revised standards

Processing of the information gathered or received from states

ECRI

CPT

Revised standards

Possible adoption of new or revised standards

Processing of the information gathered or received from states

ECRI

CPT

Standards

EXPERT BODIES

DIALOGUE CONTINUES...

Reply to the state responses

State responses

Proposal of revised standards

Reporting procedures

Conduct visits and on-site inspections

Reply to the state responses

State responses

Proposal of standards

Reporting procedures

Conduct visits and on-site inspections

DIALOGUE

Process continues...

Compliance or non-compliance with expert bodies’ standards

Receive guidance on how to comply with treaty obligations

Human rights

New level of compliance with expert bodies’ standards

Compliance or non-compliance with expert bodies’ standards

Receive guidance on how to comply with treaty obligations

Human rights

Initial level of compliance with expert bodies' standards

MEMBER STATES

Standard-setting through monitoring?

Figure 13: Overview of the dialogue between the expert bodies and member states240

240 The simplified figure does not fully reflect the adversarial character of the quasi-judicial system of the ECSR.

Comparison of the monitoring procedures

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The political bodies of the Council of Europe also have quite a different role in the four monitoring procedures. No political body is involved in the monitoring mechanisms of the CPT and ECRI. However, in the case of the ACFC, the Committee of Ministers adopts the final country-specific resolutions, which in practice are largely based on the ACFC opinions. In the case of the ECSR, the expert body takes the final decision on the states’ conformity or non-conformity with the underlying human rights obligations. In case a state does not react to the decision, the Committee of Ministers may adopt a recommendation on the basis of the decision taken by the Governmental Committee. The findings of two Council of Europe expert bodies are thus backed or reinforced by political bodies. It remains a contentious question whether political bodies should be more involved in the other two supervisory systems or whether other Council of Europe bodies such as the Parliamentary Assembly or the Commissioner for Human Rights could be involved in the monitoring systems. Would regular exchanges with the Commissioner for Human Rights be conducive to the monitoring procedures, and to what extent would he be able to give more weight to the expert bodies’ reports and recommendation? Apparently this has to be decided separately for each committee. In any case, in order not to interfere with the expert bodies’ autonomy and independence, it should be up to the committees themselves to decide if and when further political backing is needed. On average, the monitoring cycles of the four Council of Europe bodies take about five years, which means that the monitoring intervals are rather long.241 Apparently, the lengthy time span between the regular monitoring cycles constitutes a challenge for effective monitoring and makes it difficult for expert bodies to keep track of new developments and deteriorations of the human rights situation in member states. Not least for this reason, a series of activities in between the regular supervision cycles have been introduced by the expert bodies, and to date have become an established practice across the four expert bodies. These respective measures range from followup meetings with state representatives, to ad hoc contacts or high-level talks, or even new interim follow-up processes in the case of ECRI. Despite the initiatives introduced between the monitoring cycles, the long intervals of supervision reveal that the Council of Europe expert bodies are neither set up nor considered to allow for a constant supervision in any Council of Europe member state. Attributing such a duty to the Council of Europe bodies would certainly overstretch their capacities and resources. A comparison of the four monitoring bodies reveals that different sources of information are used for their monitoring procedures. The information forming the basis for monitoring is gathered from different actors, such as from the states themselves, from NGOs, from press coverage, from potential beneficiaries, or external reports and researches. The CPT and ECRI may 241 See Figure 25 in Chapter V for more details.

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actively seek information about member states by undertaking fact-finding in loco, which obviously offers advantages regarding the quality of the information collected and suggests that the monitoring body is a “hands-on” and proactive institution that is able to grasp the situation on the ground. The advantages of receiving first-hand information through such visits usually outweigh counter-arguments put forward, namely that a strong involvement of human resources, time-consuming preparation work, as well as field work, are all budget-draining. Receiving adequate information through a system based on state reports, however, has proven difficult for the ACFC and the ECSR. For years the ACFC faced serious delays in receiving information from member states, which significantly hampered the overall progress in monitoring.242 For the ECSR the information provided by state reports is still frequently not complete and consequently does not allow for an assessment of a member state’s compliance with its human rights obligations. This is mirrored in the conclusions of the ECSR explaining that because of a lack of information, no conclusion can be drawn on the conformity or nonconformity of a respective state with its human rights obligations deriving from the ratification of the ESC.243 However, the expert bodies working on the basis of state reports may resort to further sources including reports of other international bodies or shadow reports by national and international NGOs. They may also meet with state authorities to request additional information directly from states. Not least for this reason, the expert bodies’ methods of collecting information, and the quality of information they receive, both still seem to be widely sufficient and satisfactory in the view of the four expert bodies.244 Although the option of visiting member states as part of the monitoring process is generally perceived as a positive feature of the respective committees, one which has contributed considerably to the quality of the output of the monitoring activities, not all of the expert bodies under research would benefit from such a possibility. It could be argued that this might also be due to the subject matter monitored by the expert body. It would, for example, be difficult for the ECSR to empirically assess the state of social rights in all Council of Europe member states through country visits. For the ECSR country visits rather serve the purpose of encouraging states to ratify further Charter provisions. Thus, introducing an additional system of country visits would, in this instance, not be very useful for the 242 See the dates when the reports were due and when they were received by the ACFC as summarised in the Chart “Table of signatures and ratifications and status of monitoring work”, www.coe.int/t/dghl/monitoring/minorities/6_Resources/ PDF_Table_Monitoring_en.pdf. 243 The ECSR’s database reveals that the committee, pending receipt of the information requested, deferred its decision in 2 589 cases, while it came to conclusions on conformity or non-conformity in 7  235  cases. The database is available at http://hudoc.esc.coe.int/ esc2008/query.asp?language=en. 244 Authors’ interviews held with members of the expert bodies’ secretariats in Strasbourg on 12 and 13 April 2010. The interviews are on file with the authors.

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Comparison of the monitoring procedures

ECSR’s monitoring procedure, and would only increase the costs of this supervisory system.

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While input from NGOs, civil society, and potential beneficiaries is formally welcomed by all monitoring bodies under examination, it has to be questioned how and to what extent the expert bodies retrieve this expertise in practice. A comparison of the four expert bodies shows that input from NGOs, civil society, and potential beneficiaries indeed play a somewhat different role for each supervisory system. ECRI and the ACFC in particular pursue a very inclusive approach and often take into consideration civil society in the scrutiny of member states’ policies in the field of human rights, which may enrich the bodies’ overall assessment of a member state’s compliance with human rights obligations. Although not all stakeholders working in the field of the Council of Europe monitoring bodies might always be able or in the position to provide a good input to the monitoring systems, the ability and readiness on the side of the Council of Europe bodies to take into account the input of such actors can be regarded as a potential strength of a human rights monitoring mechanism. The example of the CPT shows that there might also be clear limits for a stronger inclusion of NGOs in the monitoring procedure, because of the prevailing principle of confidentiality. Although this monitoring body uses the knowledge of NGOs for information gathering and for briefings before visits, the communication between the CPT and other actors is currently one way towards the CPT. Upholding very close links and contacts with NGOs, civil society or potential beneficiaries might also bear some risks for human rights monitoring systems. If expert bodies monitoring human rights become too engaged or closely associated with the work or agenda of these stakeholders, the independence and authority of the expert body might be questioned by member states, which could potentially have negative impacts on the overall dialogue between the Council of Europe bodies and the state concerned. Apparently, a balance has to be struck by the expert bodies in this regard. The analysis of the four expert bodies’ monitoring procedures reveals that all committees’ meetings are held in camera and all monitoring systems include a confidential stage. However, confidentiality plays a rather different role for these bodies in practice. The principle of confidentiality is of utmost importance for the CPT, since the work of this body is based on the obligation for the state to co-operate with the CPT and on the other hand the CPT’s obligation to keep its findings confidential until the state authorises publication.245 In the case of the ACFC, the adoption of a respective resolution by the Committee of Ministers helped to speed up the publication of the ACFC’s opinions, as this body’s opinions can now be made public automatically 245 The PACE invited the Committee of Ministers to amend the ECPT to permit the automatic publication of the visiting reports and the comments of the states parties concerned. See Parliamentary Assembly of the Council of Europe 2011.

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four months after their adoption, unless the country concerned explicitly requests for them not to be published. This development is a major step in strengthening the position of this committee. For ECRI the stage from the draft report to the final report is confidential and in practice no state has so far opposed the publication of the ECRI report afterwards. This is most likely so, because a state has the possibility to make its comments public in an appendix to this report. In practice, the member states increasingly make use of this option.246 The information that is provided to the ECSR is public and, in the end, the assessment of this information is also public. However, problems with regard to publicity still exist in the collective complaints procedure as four months have to elapse before the ECSR’s decisions are made public. From a comparative perspective, the practice of the four expert bodies reveals a trend of bringing the monitoring results into the public domain more quickly and to become more open to the public where this is deemed necessary. However, balancing confidentiality with transparency seems to remain a difficult task. Further strategies to increase the publicity and thus the transparency of the monitoring activities could be proposed for the Council of Europe expert bodies. The translation of the monitoring bodies’ reports into local and minority languages constitutes one example in this regard. Furthermore, the presentation of the monitoring results of the expert bodies on the Council of Europe website is important for the visibility of their work. Compiling the reports and recommendations of all human rights monitoring bodies on a country-by-country basis would make the monitoring results more visible and would enhance the overall accessibility of information.

246 During the first reporting cycle only 26% of the states parties attached their viewpoints to the ECRI report. This number increased to 67% during the second and 79% for the third reporting period. In the fourth reporting cycle (ongoing), 85% of ECRI reports adopted thus far include the governments’ views.

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CHAPTER IV Implementation standards developed by the Council of Europe expert bodies 1. Analysing the implementation standards developed by the Council of Europe expert bodies Overview of main questions that will be addressed in this chapter Definitions

What does “implementation standard” mean as opposed to a “norm standard”?

Legitimacy of implementation What makes implementation standards legitimate? standards

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Legal bases, characteristics and functions of implementation standards

To what extent do the expert bodies have a mandate to develop implementation standards in the course of monitoring? What implementation standards have been developed by the Council of Europe expert bodies and what are their respective characteristics? What function do the expert bodies’ implementation standards have, especially in relation to the legally binding human rights obligations accepted by member states?

Typology What different types of implementation standards of implementation may be distinguished? standards As has been shown in the previous chapter, the basic features of the monitoring procedures of the ACFC, the CPT, ECRI and the ECSR vary considerably, each monitoring system having its particular strengths and weaknesses. All four Council of Europe monitoring bodies, in four different ways and

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with four different thematic foci, conduct individual dialogues247 with states parties and examine the legal and factual human rights situation in member states. Any such thorough examination requires assessment criteria, on the basis of which the human rights situation in a state can be evaluated on an equal footing. As will be described in this chapter, detailed catalogues of such assessment criteria have been developed by the expert bodies over the years in the course of their monitoring activities. These criteria are first and foremost to be found in the expert bodies’ substantive output concerning individual countries, known as country-specific recommendations (CPT, ECRI), opinions (ACFC) and conclusions (ECSR). Besides these state-related outputs, each expert body started summarising their crucial findings which have evolved over several years of monitoring in ever-growing compilations of assessment criteria. These compilations are the thematic commentaries by the ACFC, the “CPT Standards”, the general policy recommendations by ECRI and the “Digest of the Case Law of the European Committee of Social Rights” (hereafter: “Digest of Case Law”).

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Such assessment criteria are commonly termed human rights “standards” and are discussed and considered as being “soft law” in academic literature.248 In this chapter, however, it will be argued that the uniform labelling of the Council of Europe expert bodies’ assessment criteria as “standards” does not reflect the qualitative differences of the broad range of these “standards”. A differentiated view of the expert bodies’ assessment criteria should help to better understand variations in their potential role for the development of the European human rights order that will be discussed in the next chapter. This chapter proceeds as follows. First, it will be clarified why the notion of “human rights standards” in general falls short in light of the diversity of assessment criteria developed by Council of Europe expert bodies. The term “implementation standard” will be introduced to describe the aforementioned assessment criteria that are applied by the four Council of Europe expert bodies in the course of their supervision activities. Moreover, the legitimacy of the expert bodies’ implementation standards will be determined by describing their legitimising factors. Then, forming the main part of this chapter, the four expert bodies’ implementation standards will be presented detailing their distinctive characteristics and functions. Based on the comparative review of the expert bodies’ implementation standards, a typology of the Council of Europe expert bodies’ implementation standards distinguishing between “minimum standards”, “developmental standards” and “best practices” will then be presented. Finally, some overall conclusions regarding the expert bodies’ implementation standards will be drawn. 247 The term “dialogue” includes oral and written communication between the monitoring bodies and the states. As for the ECSR there may be oral hearings with the party concerned, but this happens only exceptionally. 248 Cf. Neuhold 2005: 47; Polakiewicz 2005: 247ff.

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2. Defining human rights implementation standards As has been elaborated upon in Chapter I, manifold human rights standards have been developed at the international level to protect people’s human rights against violations by individuals, groups or nations. This process is usually initiated and conducted by groups of states or international organisations and is usually referred to as human rights “standard-setting”. The term human rights “standard” in this context is often used to describe internationally binding legal rules contained in international treaties.

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It has also been explained in Chapter I that the protection of human rights does not end with the adoption of such standards. International organisations active in the field of the protection of human rights regularly set up and support international bodies or institutions that monitor compliance with the commitments of states.249 Various modes of supervision have been developed and have become an essential component of the protection of people’s human rights. It has even been argued that any human rights guarantee is only as good as its system of supervision.250 In practice, however, international mechanisms or bodies with the mandate to monitor the implementation of human rights in practice also engage in the process of standard-setting. At an international level, this phenomenon can well be observed in UN treaty bodies. UN bodies, such as the Committee on Economic, Social and Cultural Rights, the Human Rights Committee, the Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination against Women, the Committee against Torture and the Committee on the Rights of the Child, regularly adopt “general comments” or “general recommendations” in the course of their supervision activities.251 These general comments and general recommendations are usually updated in light of new developments and have been assessed as having three specific aims and functions. First of all, they aim to bring the experiences gained in the consideration of reports to the attention of states parties, in order to assist them both in their reporting and in the implementation of their obligations. Secondly, they may also serve as a means to point out common deficits which become apparent by considering numerous state reports. Lastly, the general comments and general recommendations elaborated by UN treaty bodies “may be sought to promote action of States Parties … with regard to the full implementation of the treaties and the rights contained therein”.252 They therefore also reflect standards or “goals for the attainment of which 249 250 251 252

Cf. Klein 2008. Cf., for instance, Harris and Darcy 2001: 374. These documents of all human rights treaty bodies are compiled in United Nations 2004. Stoll 2008.

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the monitoring bodies wish the state party to strive and [may also] serve as authoritative interpretation of the provisions of treaties”.253 General comments and general recommendations are thus more than a mere reflection of the human rights situation in a state party, but set specific standards on their own. At the UN level, there is no uniform notion in use that would describe such kinds of recommendations or comments. In practice they are often simply referred to as human rights “standards”. It has to be made clear at this point, however, that the general comments and general recommendations have a different legal status than human rights “standards” in the form of treaties. In contrast to treaties, the notions “general recommendations” and “general comments” already imply that they do not have a legally binding effect as such.254 The uniform labelling of the provisions as laid out in human rights treaties as well as in general recommendations and general comments as human rights “standards” therefore appears to be misleading, as this term does not take into account their different legal effects.

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For this reason, a differentiation between “norm standards” and “implementation standards” is suggested in the following. The term “norm standards” is introduced to describe human rights standards that are adopted by states and are legally binding. Norm standards primarily are laid down in human rights treaties, but also encompass customary international law and human rights principles. Any amendment to these norm standards must be made by states themselves according to the respective rules for amendments.255 Such modifications may often be a difficult and time-consuming undertaking, meaning that norm standards are only seldom subject to amendments and thus have a low level of flexibility.256 Norm standards are usually composed of various constitutive  elements257 that clarify more precisely the different aspects of the content of the norm standard or give an interpretation of it. International courts, like the European Court of Human Rights, may define and refine such constitutive elements by giving a judgment on a specific human rights treaty provision. If states amend a treaty, they may also modify some constitutive elements of the norm standard or add more constitutive elements to the respective norm standard. Since states and the European Court of Human Rights are able to define or revise constitutive elements of a norm standard, the constitutive elements may be regarded as having a medium level of flexibility between norm standards and implementation standards.258

253 Ando 2008. 254 Ibid. 255 For the CPT and the ECSR, for instance, several additional protocols have been adopted; see above in Chapter II. 256 Cf. Neuhold 2005. 257 See also de Beco 2008: 28. 258 In Chapter V, however, the question will be raised whether the expert bodies’ implementation standards may also contribute to defining the constitutive elements of a norm standard.

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The term “standard” can, however, also be understood in a wider sense and therefore a second category of human rights standards named “implementation standards” is introduced here. This second category is used to describe material outputs adopted by independent expert bodies for the clarification and interpretation of norm standards and to describe measures that can be taken by states to bring national human rights law and practice into conformity with the norm standard. Although these standards are not legally binding, they still carry a considerable political, moral and persuasive force. In contrast to norm standards, implementation standards are more open for modifications and amendments over time as they reflect the ever-growing experience of independent expert bodies that are free to amend their implementation standards if they regard this as necessary. Implementation standards thus have a high level of flexibility. The main differences between norm standards and implementation standards are summarised in Figure 14. Figure 14: Comparison of norm standards and implementation standards

Implementation standards

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Norm standards

Relevant actors

states

expert bodies

Binding force

Function

legally binding

Denote the normative content of a right or obligation as laid down in treaty law, customary law, or the general principles of law.

not legally binding

Clarify and/or interpret norm standards by describing measures that can be taken by states to bring national human rights law and practice into conformity with the norm standard.

The distinction between norm standards and implementation standards can be applied to the manifold human rights standards as developed by the expert bodies of the Council of Europe under examination. This was reflected in the previous structure of the Secretariat when the former Directorate General of Human Rights and Legal Affairs comprised not only a “Directorate of Monitoring” but also a “Directorate of Standard-Setting”. This latter directorate dealt primarily with the preparation of drafts of binding and non-binding legal instruments, such as conventions and recommendations, which require adoption by states. To use the notions 109

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introduced above, the Council of Europe treaties developed under the former Council of Europe Directorate of Standard-Setting are norm standards, or at least have the potential to become norm standards if they are adopted by states. In contrast, the Directorate of Monitoring comprised the secretariats of almost all independent monitoring bodies established in the framework of the Council of Europe. From the structure of the former Directorate General of Human Rights and Legal Affairs, now Directorate for Human Rights and Rule of Law, it may be concluded that the Council of Europe monitoring bodies are a priori not tasked with setting human rights standards. It could be argued that the “standard-setting” function of the Council of Europe would rather be accomplished with the adoption of the various conventions (ECPT, ECSR, FCNM, etc.) and the main function of the Council of Europe expert bodies lies exclusively in the task of supervision and compliance monitoring. In practice, however, it can be observed that in the course of their monitoring activities, the Council of Europe expert bodies adopt general substantive outputs in the form of country-specific recommendations (CPT, ECRI), opinions (ACFC) and conclusions (ECSR) as well as compilations of assessment criteria known as “thematic commentaries” (ACFC), the “CPT Standards”, the “general policy recommendations” (ECRI) and the “Digest of Case Law” (ECSR). The aims and functions of these documents are to a large extent comparable with the “general comments” and “general recommendations” by UN treaty bodies. Just like these documents developed at the UN level, they aim at concretising the underlying legal obligations and thus at giving practical guidance for the implementation of human rights in member states. They can therefore be understood as a kind of “vehicle” which on the one hand provides criteria to assess the human rights situations in member states and on the other hand gives recommendations on how to remedy or how to prevent human rights violations. Thus they also go beyond a mere description of the human rights situation and define certain standards. Since these substantive outputs are not legally binding per se and are adopted by independent expert bodies of the Council of Europe for the clarification and interpretation of norm standards, they may well be qualified as “implementation standards”.

3. The legitimacy of implementation standards developed by Council of Europe expert bodies At a time when a growing number of new actors, such as expert bodies, international tribunals or appellate bodies, exert an increasing influence on the norm-creating and norm-interpreting process at the international level, it is necessary to enquire into the legitimacy of the outputs such new actors 110

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produce.259 The influence the Council of Europe expert bodies exert with their implementation standards likewise raises the question about what makes these standards legitimate.260 If a rule is widely regarded as illegitimate by those to whom it is addressed, “it is likely to be disregarded with increasing frequency …”.261 In order to exert a “pull for compliance”262 it is thus of particular importance that implementation standards in the area of human rights are perceived as to be legitimate by states. In academic literature there is considerable confusion about the term263 and the relevance of the concept of legitimacy in international law.264 Undoubtedly, legitimacy is to a certain degree related to the concept of legal­ ity.265 But while it is widely accepted that legality ensures that the exercise of authority of an entity can be linked back to a legal basis, the concept of legitimacy is a more complex and disputed one. This may well be illustrated with a simple example regarding human rights implementation standards by Council of Europe expert bodies. Even if an implementation standard of the ACFC, the CPT, the ECSR or ECRI is elaborated in accordance with the underlying treaty or statute and thus builds on legality, this does not necessarily mean that this standard is perceived as legitimate by states. However, if an implementation standard is perceived as legitimate, this may directly influence the degree to which a state feels bound by it.

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Moreover, it has to be taken into account that the bases of legitimacy may not necessarily be universal, meaning that they may differ in the perception of different actors. State actors may often have a different opinion about the factors inducing legitimacy than members of civil society. While state consent, for instance, may constitute the cornerstone of legitimacy in the view of governments, civil society organisations may place much greater emphasis on issues such as participation and transparency. Thus, “factors that may help legitimise an institution in the eyes of non-state actors may help delegitimise it in the eyes of state-actors.”266 Since the perceptions of legitimacy 259 Cf. Wolfrum 2008: 18. 260 Cf. Bodansky 2008: 309. 261 Neuhold 2008: 337; see also Seiderman 2001: 31. 262 For a discussion of this notion see Franck 1988. 263 The Oxford English Dictionary defines legitimacy as “the condition of being in accordance with law or principle”. Franck uses the term legitimacy “to mean that quality of a rule which derives from a perception on the part of those to whom it is addressed that it has come into being in accordance with right process”. He further identifies four elements of legitimacy in the community of states. These are determinacy, symbolic validation, coherence and adherence to a normative hierarchy. See Franck 1988: 706-12. Bodansky regards legitimacy to be the “justification and acceptance of political authority”. See Bodansky 2008: 310. 264 Cf. Neuhold 2008: 335. On legitimacy in general see, for example: Franck 2006; Kumm 2004. 265 Bodansky 2008: 311. 266 Ibid: 314.

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are usually strongly grounded in and shaped by social reality, legitimacy can hardly be regarded as a uniformly applicable or strictly legal concept. It has rightly been noted that the factors inducing the legitimacy of human rights standards have to be discussed in a differentiated and contextual way.267 Therefore, a theory for determining the legitimacy of Council of Europe expert bodies’ implementation standards is presented in the following description of legitimising and delegitimising factors. The categorisation of elements that may induce the legitimacy of implementation standards is guided by the theory that the legitimacy of a particular authority may be source, procedure and result oriented or a combination thereof.268 This theory is adapted and broadened in order to meet the particularities of factors inducing the legitimacy of human rights implementation standards by Council of Europe expert bodies.

3.1. State consent inducing the legitimacy of implementation standards

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In public international law, the consent of states constitutes one of the most important sources of legitimacy.269 Accordingly, a main factor inducing the legitimacy of the implementation standards of the Council of Europe expert bodies is the consent of the states concerned to develop such standards. Naturally, this consent is expressed in the mandates given to expert bodies to develop such standards as a result of their monitoring procedures. As will be shown below, the mandates of all four Council of Europe expert bodies under examination entail the authorisation to develop implementation standards. It may well be argued that states equipped these bodies with considerable autonomy to develop a treaty regime or a genuine system of implementation standards which may, under certain circumstances, even develop a legal life of their own.270 The practice of the four Council of Europe expert bodies reveals that the elaboration of implementation standards is indeed a dynamic process that is highly responsive to new developments or emerging human rights challenges in member states. Expert bodies regularly face new challenges in member states that call for a reconsideration of existing implementation standards. Furthermore, expert bodies might be tempted to adopt more far-reaching standards as soon as states have implemented basic standards in the respective field of human rights. Therefore, the question arises as to where the expert bodies should draw the lines when extending implementation standards, as extending them might have an impact on their legitimacy. By adopting and recommending too farreaching standards, the Council of Europe expert bodies may risk going be267 Ibid: 315. 268 Cf. Wolfrum 2008: 6. 269 Ibid. 270 This issue will be discussed in the following chapter.

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yond their mandate, which would clearly have a delegitimising effect on their work. Therefore, to ensure the legitimacy of their implementation standards, the Council of Europe expert bodies have to keep two things in mind: on the one hand, that their implementation standards are sufficiently loyal to the human rights norm standard consented to by the states parties; on the other hand, that their implementation standards are sufficiently responsive to new developments, and thus to the overall objectives of the underlying norm standard.271

3.2. Authority of experts inducing the legitimacy of implementation standards

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Recourse to expert opinions plays a significant role in international human rights law.272 Resorting to internationally recognised and independent professionals, as assembled in the four Council of Europe expert bodies, thus appears to be a particularly suitable approach for the development of human rights implementation standards. It may well be argued that through their expertise, these Council of Europe bodies are best suited to interpret and apply treaty provisions or human rights principles in order to achieve the goals stated in the underlying legal bases. In this context, the Council of Europe expert bodies’ practice of resorting to external experts of their own choice in the monitoring procedures also has to be considered. As was explained in Chapter III, external experts are involved in the elaboration of standards by ECRI and the ACFC, while such experts are not directly engaged in the development of the CPT’s or the ECSR’s implementation standards. External experts may bring in specific knowledge in the monitoring process in the case of an expert body being short of a specific expertise. They thus help to develop a basis for setting human rights implementation standards informed by comprehensive expert knowledge. For this reason, external experts may also add to the legitimacy of implementation standards of Council of Europe bodies. However, states may in turn regard external experts to be a delegitimising factor since such experts are not selected according to the respective procedures which apply to the members of the expert bodies. Regardless, it is a comparative advantage in this respect that neither expert bodies nor external experts are assumed to be guided by self-interest, whereas states and their representatives might be. The required independence and impartiality of the experts involved is thus a particularly important factor inducing legitimacy of the human rights implementation standards. All of the four Council of Europe expert bodies under examination should, according to their legal basis, be composed of renowned experts who are assumed to develop implementation standards in an unbiased manner. However, it should be made 271 Far-reaching recommendations made by the CPT, for instance, reveal that Council of Europe expert bodies may be caught up in a dilemma in this regard. 272 Cf. Wolfrum 2008: 24.

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clear at this point that the lack of professionalism on the part of the expert bodies, as a result of deficiencies in the selection procedures, would have adverse effects on the legitimacy of implementation standards. This means that if a person is appointed as a member of one of the Council of Europe bodies and in practice does not meet the necessary professional requirements to carry out such a responsible function, this may have a delegitimising effect on the acceptance of implementation standards set by the respective body. For this reason, it is of particular importance that the appointment procedures for the members of the Council of Europe bodies are able to ensure not only their expertise, but also their independence and impartiality, and thus their eligibility. As has been shown in Chapter II, experts appointed to the four Council of Europe bodies under examination have to fulfil certain requirements set out in the respective legal frameworks. Yet such legal requirements are not necessarily a guarantee in practice that the most eligible candidates are elected as expert members. Therefore, the legitimacy of implementation standards by Council of Europe expert bodies also depends on the question of whether the most suitable candidates are proposed by the member states and subsequently elected by the Committee of Ministers. In the states’ view, the representativeness of states parties in the expert bodies could also add to these bodies’ authority and thus increase the legitimacy of their implementation standards. Although states may not exert an influence on the work of the elected experts, they could perceive standards to be more legitimate if experts from all states are able to contribute to their elaboration. Along this line of argumentation, the participation of experts from all member states would help increase the legitimacy of the implementation standards of the two expert bodies composed of one professional per member state, namely the CPT and ECRI.

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3.3. Processes and procedures inducing the legitimacy of implementation standards It is widely accepted in international law that adhering to a pre-agreed process can have a legitimising effect.273 Implementation standards developed by Council of Europe expert bodies may thus be legitimised if they are based on procedures which states agreed upon and considered as being adequate for this specific purpose. Various factors related to the standard-setting procedure may thus have a legitimising or delegitimising effect on the implementation standards of Council of Europe expert bodies. The methodological soundness of the procedure for the elaboration of implementation standards appears to be a particularly compelling legitimising 273 Ibid: 6.

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factor. For implementation standards to be legitimate, it seems to be a prerequis­ ite that the monitoring process informing the development of implementation standards is carried out at suitable intervals and in an appropriate manner based on adequate procedures and sources of information. Along this line of argumentation, a statement made for the CPT explains that this expert body’s persuasive force derives from the fact that its standards “… are evolving from first-hand experience of the lived reality of custodial practice”.274 As discussed in Chapters II and III, the four monitoring bodies apply different monitoring cycles, use different sources of information for their monitoring activities, and obtain their information through different procedures ranging from a state reporting system to on-site visits. The information forming the basis for the elaboration of implementation standards is gathered from different actors, such as states themselves, NGOs, press coverage, beneficiaries, or external reports and research. The manifold sources of information used for standard-setting are a prime example for a factor for which the perceptions of legitimacy may diverge between state actors and non-state actors. While non-state actors will likely welcome implementation standards based on a broad range of sources representing the various opinions of the different stakeholders, state actors may prefer implementation standards building mainly on information provided by themselves. Likewise, the relativity of legitimacy-inducing factors is apparent in calls for transparency and the participation of a wide range of stakeholders in the monitoring procedures forming the basis for the development of implementation standards. NGOs, civil society and potential beneficiaries, such as minority groups, can provide valuable input from the bottom up, but in the view of states, this input might not necessarily increase the legitimacy of implementation standards.

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3.4. Quality of output inducing the legitimacy of implementation standards The outputs of the Council of Europe expert bodies, namely their implementation standards, can also be legitimised by their quality. It may well enhance the legitimacy of implementation standards if states realise that expert bodies develop them with adequate analytical rigour. If the standards are not helpful in achieving the results which the states as their prime addressees consider to be adequate, this may lead to an erosion of their legitimacy. In essence this means that the Council of Europe expert bodies’ implementation standards have a higher degree of legitimacy if they prove effective means of achieving the objectives stated in the norm standards. In other words, only if states perceive the implementation standards as practical and useful will they regard them to be legitimate. It should, however, be borne in mind that 274 Morgan and Evans 2001: 162.

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legitimacy is not necessarily created at once and that it can take “time to create a body of experience to evaluate whether an institution is producing good results”.275 Thus, various monitoring cycles may have to pass by until the implementation standards of an expert body are legitimised from the states parties’ perspective. Moreover, the level of determination of implementation standards can be a legitimising factor for human rights implementation standards. It has been argued that the “degree of determinacy of a rule directly affects the degree of its perceived legitimacy”.276 According to this rationale, the states parties will perceive implementation standards to be more legitimate if they give a clear message of what is expected from them. The uniform application of implementation standards vis-à-vis all Council of Europe member states may also be regarded as a factor inducing the legitimacy of the implementation standards. Uniform application is most noticeable by its absence; application of double standards by Council of Europe bodies could well cause state representatives to consider them to be illegitimate.

4. Implementation standards developed by Council of Europe expert bodies

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In practice the implementation standards of the four Council of Europe monitoring bodies under scrutiny take diverse forms and serve different purposes. Therefore, a closer look at the implementation standards developed by the four Council of Europe expert bodies in their country-to-country work as well as in their thematic work is required. This sub-chapter will discuss in more detail the characteristics and functions of the four Council of Europe bodies’ substantive outputs. For each expert body, it is divided into three parts. First, it will be outlined to what extent the expert body has an explicit or implicit mandate to set implementation standards. Then, the characteristics of the respective implementation standards will be determined by discussing significant features of the compilation of these standards, by analysing whether these standards are developed or modified over time, and by describing how these standards are published and promoted. Finally, the role and function of the four expert bodies’ implementation standards will be analysed. For this purpose, it will be examined to what extent the implementation standards interpret the underlying treaty

275 Bodansky 2008: 315. 276 Franck 1988: 716. The main assumption behind this argument, however, is that the more determinate an implementation standard is, the more difficult it is for states to resist this standard or justify non-compliance. Cf. Franck 1988: 714.

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obligations and human rights principles in a dynamic process, which may contribute to the clarification and eventually also to the broadening of the scope of these norm standards.

4.1. ACFC 4.1.1. The ACFC’s legal basis for standard-setting

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According to Rule 23 of Resolution (97) 10, the ACFC shall “consider the state reports and shall transmit its opinions to the Committee of Ministers”.277 This rule provides the ACFC with the explicit mandate to adopt opinions on the adequacy of the measures taken by the state parties to give effect to the principles of the FCNM, which fall under the category of norm standards. In practice, these opinions are adopted in country-specific working groups set up according to Rule 35 of the ACFC’s Rules of Procedure.278 The ACFC also decided to establish thematic working groups279 to elaborate thematic commentaries. The ACFC derives the mandate to adopt such thematic commentaries from Rule 35 of its rules of procedure. According to this rule, “[t]he Committee may set up working parties and other subsidiary bodies to consider specific questions, including state reports”. Neither the exact purpose of setting up subsidiary bodies to consider specific questions, nor the mandate such groups may have, is defined in Rule 35. The only limitation seems to be set by the heading under which Rule 35  is placed, namely “Procedure concerning the consideration of state reports”. This implies that subsidiary bodies may be set up for various purposes, only as long as they are conducive to the consideration of state reports. Apparently, the drafters of this rule a priori did not foresee the necessity for thematic work to be done by the ACFC. However, the wording and authorisation of Rule 35 provides the ACFC with enough flexibility to engage in thematic work, because this work is closely connected to the process of considering state reports. The thematic commentaries developed by the ACFC’s thematic groups summarise this body’s “experience and views on specific thematic issues”;280 it has come across in its country monitoring work. The thematic commentaries therefore reinforce the ACFC’s country-to-country approach. Thus it may well be argued that the ACFC’s thematic working groups have an implicit mandate to develop implementation standards in the form of thematic commentaries according to Rule 35 of the ACFC’s Rules of Procedure. 277 Committee of Ministers 1997a. 278 Rules of Procedure of the Advisory Committee on the Framework Convention for the Protection of National Minorities 1998. 279 Advisory Committee on the Framework Convention for the Protection of National Minorities 1999: paragraph 14. 280 Advisory Committee on the Framework Convention for the Protection of National Minorities 2006b: 5.

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4.1.2. Characteristics of the implementation standards developed by the ACFC 4.1.2.1. The ACFC’s opinions The ACFC works on the basis of the catalogue of principles contained in the FCNM which the states parties have undertaken to implement. According to the terminology coined above which distinguishes between norm standards and implementation standards, these principles constitute the norm standards. While the ACFC was, in theory, only created to assist the Committee of Ministers in its monitoring function, its opinions have become the most important and appreciated source of the monitoring process.281 A comparative reading of all opinions adopted to date gives an idea about the assessment criteria used by the ACFC.282 If one considers the variety of situations in which persons belonging to national minorities find themselves, it follows that a variety of solutions have to be found, a single, standardised solution being inappropriate.283 Consequently, the ACFC in its opinions has not developed implementation standards that are fully homogenous.

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It has been argued that the ACFC, in considering the current state of affairs in the respective state party, has occasionally applied a minimum standard when declaring that a certain level of performance may suffice in a particular circumstance. However it may not suffice in future monitoring cycles.284 On other occasions, the ACFC welcomed a certain situation with respect to one state, but for the time being has not gone as far as to require the same performance from another state. Sometimes the committee also criticises the taking back of a previously existing standard, although it would not, if it had not existed before, even be requesting it from that same state. However, the frequency with which the ACFC is considering such situations indicates that a standard is under development. Such standards were referred to as developmental standards.285 On other occasions, the ACFC has commented on

281 Cf. de Beco and Lantschner 2012: 117. 282 This comparative work has been carried out in Lantschner 2009. A summary of the findings can be found in Lantschner 2008. 283 Steketee 2001: 4. 284 Pekari 2004: 362. 285 The notion “developmental standard” was coined by Emma Lantschner. Cf. Lantschner 2009: 27. According to her, the difference between minimum and developmental standards can be seen in the active approach regarding the former and the reactive approach regarding the latter type of standard. The ACFC would criticise the violation of a minimum standard also in the case of a lack of regulation or the inaction of the state. In the case of developmental standards, the ACFC reacts only to an existing legal situation in a state. If, for instance, a state used to have guaranteed representation of minorities in parliament and then abolishes this guarantee without providing for other ways and means for these minorities to effectively participate in public life, the ACFC criticises this. However, it

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certain measures which they considered as “best practice”. Such practices, however, would not be imposed on other states as an agreement on such a measure becoming a common standard cannot be expected.286 4.1.2.2. The ACFC’s thematic commentaries Only recently has the ACFC started summarising the experience gathered in the past in its thematic commentaries. It has decided to do so by choosing individual key areas relevant for the protection of persons belonging to national minorities. Thematic commentaries are based on the opinions drafted by the ACFC in their country-by-country monitoring. They are translated into a number of languages, such as Azerbaijani, Czech, German, Swedish, and Russian.287 An interesting aspect of thematic commentaries is that in contrast to the ACFC opinions, they are not submitted to the Committee of Ministers.288 So far, two thematic commentaries have been adopted by the ACFC. Figure 15: The ACFC’s thematic commentaries Overview of the ACFC’s thematic commentaries The “Commentary on education under the Framework Convention for the Protection of National Minorities” was adopted in 2006. The “Commentary on the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs” was adopted in 2008.

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A third thematic commentary on the topic of minority languages is currently in development. The “Commentary on the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs” (hereinafter: Commentary on Participation) is unique in two ways. Firstly, civil society participated in the drafting. Secondly, this commentary is partly more normative in its formulations than the “Commentary on education under the Framework Convention for the Protection of National Minorities”289 (hereinafter: Commentary on Education). On the latter issue, Lantschner refers to paragraph 102 of the second thematic commentary, which clearly states that “[l]anguage proficiency requirements imposed on candidates for parliamentary and local elections are not compatible with Article 15 of the would not criticise the same or another state for not having provided for such guaranteed representation in the first place. The more often the ACFC has the possibility to comment on such situations the more evident it becomes that a standard is under development. 286 Lantschner 2008: 6. 287 The thematic commentaries are available on the expert body’s website: www.coe.int/t/ dghl/monitoring/minorities/3_FCNMdocs/Thematic_Intro_en.asp. 288 De Beco and Lantschner 2012: 123. 289 Cf. Lantschner 2010: 277-79.

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Framework Convention” and concludes that “[w]hile the first commentary takes a more academic approach, the second is more normative in nature”.290 The ACFC makes regular reference to the thematic commentaries in its opinions. It does not seem that the Committee of Ministers is contributing to the dissemination by referring to the commentaries in its own documents. Considering the fact, however, that the Committee of Ministers conforms most of the time to the opinions of the ACFC, which are in turn formed and informed by the considerations expressed in the commentaries, it thereby supports the thematic commentaries indirectly. In some of the follow-up meetings between the ACFC and states parties, special sessions are devoted to the presentation and discussion of the contents of the commentaries. However, this does not seem to be an established practice.291 Consequently, the state reports that have been submitted to the ACFC after the adoption of the commentaries in practice do not explicitly mention them, but some shadow reports prepared by minority organisations, however, do so. Outside the Council of Europe context, one can point out that the Commentary on Participation has been mentioned in the background document to the recommendations on minorities and effective political participation prepared by the UN independent expert on minority issues, Gay McDougall.292 4.1.3. The function of the implementation standards developed by the ACFC

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It has been explained above that the thematic commentaries on education and participation are only the beginning of the thematic work of the ACFC and that its implementation standards in other fields can be deduced from a comparative reading of all opinions. However, when considering the role and function of the ACFC’s standards, we will focus on the first two thematic commentaries. The aim pursued by the two commentaries is largely the same, but differs in nuances which are reflected in their format and style. The Commentary on Education mentions as its first aim to “summarise … the experience of the ACFC in working with and for education rights”.293 The main objective of the Commentary on Participation, on the other hand, is to “highlight the interpretation given by the ACFC, mainly in its country-specific opinions adopted between 1999 and 2007, to provisions of the FCNM relating to ef290 Ibid. 291 According to the programmes of the follow-up meetings available on the website of the FCNM, the Commentary on Education has been presented only once (in Sweden), the one on participation three times (in Sweden, Slovenia and Norway) out of the five follow-up meetings that have taken place after the adoption of this commentary. 292 Human Rights Council 2009. 293 Advisory Committee on the Framework Convention for the Protection of National Minorities 2006a: 5.

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fective participation of persons belonging to national minorities”.294 As has been stated above, the first commentary seems to be more a stocktaking exercise and the second is more willing to come up with normative recommendations.295 The Commentary on Participation further points out that it “aims to provide a useful tool for state authorities and decision-makers, public officials, organisations of minorities, non-governmental organisations, academics and other stakeholders involved in minority protection”.296 It has been argued that the commentaries have the purpose of giving “substance to the provisions in international law and to facilitate at the national level the practical implementation of the international commitments”.297 The commentaries can therefore be seen as a means of helping all actors involved to better understand their rights and obligations under the FCNM as they further specify its provisions. As such, they are complementary to the convention.298

4.2. CPT

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4.2.1. The CPT’s legal basis for standard-setting According to Article 1 of the ECPT, the CPT shall “examine the treatment of persons deprived of their liberty with a view to strengthening, if necessary, the protection of such persons from torture and from inhuman or degrading treatment or punishment”. The drafters of the treaty made it very clear that the committee shall not perform any judicial functions and should thus not interfere in the interpretation and application of Article 3 of the European Convention on Human Rights, neither in abstracto nor in relation to concrete facts.299 The CPT’s mandate, however, empowers it to provide states with recommendations on how to remedy critical conditions in which states parties are in danger of violating their human rights obligation to prohibit torture and ill-treatment. Article 10 (1) ECPT states that after each visit, the CPT shall draw up a report on the facts found including “any recommendations it considers necessary”. With this provision, the CPT has an explicit mandate to formulate recommendations to clarify what measures should be taken by the states parties to improve the protection of persons deprived of their liberty and an implicit mandate to set implementation standards. While the explanatory report to the convention is silent on the question of 294 Advisory Committee on the Framework Convention for the Protection of National Minorities 2008: 9. 295 Cf. Palermo 2008: 422ff. 296 Advisory Committee on the Framework Convention for the Protection of National Minorities: 9. 297 Eide 1999: 325. 298 See also Eide 2008. 299 Explanatory Report to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 2002.

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standard-setting the internal rules of procedure provide in its Rule 25  for the setting up of ad hoc working parties whose terms of reference should be defined by the committee. Under this rule a working group on the CPT’s “jurisprudence” was established by the plenary during its 43rd meeting in November 2000, the terms of reference of which were updated at regular intervals. The latest published version of these terms of reference explain that “the working group shall continuously monitor the evolution of the CPT’s jurisprudence and shall report on this subject to the Committee in plenary sessions”. This includes a regular update of the “Source Book”, a synthesis of existing recommendations and standards (“jurisprudence”) in respect of matters systematically addressed in the CPT’s reports. This “Source Book” is an internal working tool which is not made public. However, the CPT publishes its standards and announced already in its second general report that it will address certain substantive matters to which it pays attention when carrying out visits. It also indicated that “in the long term, the compilation of a corpus of standards on the treatment of persons deprived of their liberty might be envisaged”. In the same general report, the CPT published some substantive issues pursued by the CPT during visits covering police custody and imprisonment.300 This constituted the first “substantive section” of the “CPT Standards”, which is a growing collection of recommendations on substantive issues, compiled in one single document and updated at regular intervals. 4.2.2. Characteristics of the implementation standards developed by the CPT

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4.2.2.1. The CPT’s recommendations in the country reports To meet the goal of protecting detainees from torture, and inhuman or degrading treatment, the CPT is entitled but also obliged to carry out inspection visits to any place where persons are deprived of their liberty within the jurisdiction of a state party. These visits serve the purpose of confronting the delegations with “practical day-to-day realities of custodial regimes” and treatments of detainees.301 The question of which treatment is de facto conducive to illtreatment is appraised by the committee in its recommendations in the country reports after thorough examination. The CPT stated from the very beginning of its activities that “it recommends measures designed to prevent the possible occurrence of treatment that is contrary to what reasonably could be considered as acceptable standards for dealing with persons deprived of their liberty”.302

300 See European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 1992. 301 See Morgan and Evans 2001: 167. 302 See European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 1991: paragraph 4.

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In practice, the recommendations adopted by the plenary of the committee are based on the facts found and the proposals made by the visiting delegations under the impression of the on-site inspection. The CPT’s delegations often encounter different stages of development in respect to the economic, social and more specifically the human rights situation in the respective countries. It appears that the committee tries to be more selective in terms of providing “achievable” recommendations.303 As a consequence, the committee was criticised for applying double standards in its country reports. In one of its earlier general reports the committee stressed that it is bound to apply uniform standards in all member states but that these standards cannot always be achieved at once, instead being advanced step by step. The question arises in this context whether the CPT distinguishes between more important, or as defined later in this chapter “minimum standards”, and less important or “developmental standards”. If such a distinction is made by the committee it would be useful to identify clearly such recommendations constituting minimum standards in its country reports, the implementation of which should be given priority by the state concerned. 4.2.2.2. The “CPT Standards” The main criteria for the assessment of detention situations in various countries are the “CPT Standards” (hereafter: CPT Standards). Some, but not all of the CPT’s general reports contain sections on substantive issues which the committee pursues and employs during its visits. Figure 16: The CPT Standards Overview of the CPT Standards 2nd General Report: substantive section on police custody and imprisonment 3rd General Report: substantive section on health care services in prisons

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7th General Report: substantive section on foreign nationals detained under aliens legislation 8th General Report: substantive section on involuntary placement in psychiatric establishments 9th General Report: substantive section on juveniles deprived of their liberty 10th General Report: substantive section on women deprived of their liberty 11th General Report: substantive section on some recent developments concerning CPT standards in respect of imprisonment

303 Cf. Kicker 2012: 60; also see Morgan and Evans 2001: 162.

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12th General Report: substantive section on some developments concerning CPT standards in respect of police custody 13th General Report: substantive section on deportation of foreign nationals by air 14th General Report: substantive section on combating impunity 16th General Report: substantive section on means of restraint in psychiatric establishment for adults 19th General Report: substantive section on safeguards for irregular migrants deprived of their liberty 20th General Report: substantive section on the use of electrical discharge weapons 21st General Report: substantive section on solitary confinement of prisoners

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The CPT Standards deal on the one hand with places of detention, such as police custody, prisons, psychiatric establishments, and immigration detention centres. On the other hand they focus on vulnerable groups, such as juveniles and women, as well as foreign nationals, while persons belonging to an ethnic minority deprived of their liberty were so far not identified as in need of specific standards by the CPT. Combating impunity and the use of electrical discharge weapons address procedural issues which may have an impact on different aspects of the deprivation of liberty. The CPT’s Standards are translated into 30 languages and are available on the CPT website.304 The range of the CPT Standards developed over time in light of new findings of the committee. Standards dealing with police custody, for instance, were first published in the 2nd General Report and further developed in the 6th and 12th General Reports. Further examples include implementation standards in relation to imprisonment, which were first published in the 2nd General Report and supplemented with more detailed recommendations in the 3rd General Report. Moreover, new phenomena identified by the CPT, such as prison overcrowding, long-term prisoners placed in high security, or the use of electrical discharge weapons, have been added to the CPT Standards. Therefore, the whole corpus of standards is subject to permanent and dynamic development.305 The CPT Standards often include a descriptive part detailing the expert body’s experience gathered in monitoring places of detention. Based on these facts, the CPT gives its deliberations on the specific issues at stake and then elaborates on recommendations that are expressed in a normative 304 The CPT Standards are available on the expert body’s website: www.cpt.coe.int/en/ docspublic.htm. 305 Cf. Kicker 2009: 205.

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manner. The CPT mainly uses the word “should” to express what states are expected to do in order to prevent torture or inhuman or degrading treatment of persons deprived of their liberty. The CPT’s expectations are usually precise enough to be directly applicable and implemented by states parties. The CPT Standards are not homogenous in qualitative terms. Over time, they have become more and more detailed and no distinction is made between standards for the prevention of torture and ill-treatment strictu sensu and standards which help to improve the living conditions of persons deprived of their liberty.306 The former type of implementation standards could be termed minimum implementation standards as they are (in the CPT’s view) indispensable to prevent torture and ill-treatment. It appears that the recommendations formulated as “safeguards” have a potential in this context. 4.2.3. The function of the implementation standards developed by the CPT

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The initiative to develop a set of standards was the CPT’s critical perception of existing European and international instruments, which according to the committee were often lacking clear guidance in this field. Therefore, the CPT developed more detailed criteria to monitor conditions of detention as well as the treatment of persons deprived of their liberty objectively.307 The CPT Standards are basically a collection of all the substantive issues pursued by the CPT in its visits with the aim of providing a clear advance indication to national authorities of its views regarding the manner in which persons deprived of their liberty should be treated.308 CPT Standards “… ensure that individuals in custody are adequately protected against the possibility of ill-treatment and are held in appropriate accommodation as is consistent with their human dignity”.309 Standard-setting is thus “… designed to assist in the prevention of ill-treatment by providing a set of ‘measuring rods’ to states”.310 It can therefore be concluded that the standards developed by the expert body have both a preventive and a guiding function. Moreover, the CPT Standards aim to stimulate discussion on the protection of persons deprived of their liberty.311

306 Cf. Kicker 2012: 54. 307 Cf. Murdoch 2006: 45. 308 Cf. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 2010a: Preface. See also Article 12 ECPT. 309 Ibid: 359. 310 Ibid: 45. 311 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 2010a: 5.

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4.3. ECRI 4.3.1. ECRI’s legal basis for standard-setting As has been explained above in Chapter II, ECRI has a three-pronged mandate comprising the country-by-country monitoring, the work on general themes and the task of establishing and upholding relations with civil society. As will be explained below, the first two aspects of this mandate are relevant for standard-setting. According to Article 1  of the Appendix to Resolution Res(2002)8,312 ECRI is entrusted with the task of “review[ing] member states’ legislation, policies and other measures to combat racism, xenophobia, anti-Semitism and intolerance, and their effectiveness”. Article 11  of the Appendix to Resolution Res(2002)8 specifies that ECRI shall accomplish this country-to-country monitoring by drawing up reports with its analysis of member states’ legislation, policies and other measures and with proposals on how each country should deal with the problems identified. The assessment criteria used for this analysis and the proposals made by ECRI in the country reports may well be considered as implementation standards. It may thus be concluded that ECRI has a mandate to set implementation standards in its country-to-country approach.

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According to Article 1 of the Appendix to Resolution Res(2002)8, ECRI is further entrusted with the task of “formulat[ing] general policy recommendations to member states”. GPRs are addressed to all member states and aim to provide guidelines “which policy makers are invited to use when drawing up national strategies and policies in various areas”.313 This mandate to develop GPRs is certainly one of the most overt mandates given to Council of Europe monitoring bodies to develop implementation standards. Moreover, according to Article 12 of ECRI’s Statute, ECRI is entrusted with the task of gathering good practices in combating racism, racial discrimination, xenophobia, anti-Semitism and intolerance. While the fact that ECRI has the mandate to elaborate on good practices is obvious from this provision, it might be questioned whether good practices can be regarded as implementation standards at all. This question will, however, be dealt with in more detail below. 4.3.2. Characteristics of the implementation standards developed by ECRI 4.3.2.1. ECRI’s recommendations in the country reports ECRI monitors all Council of Europe member states in five-year cycles, each covering nine to 10 countries per year. The reports of the first monitoring cycle 312 Committee of Ministers 2002a. 313 Secretariat of the European Commission against Racism and Intolerance 2009: 3.

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were adopted between 1997 and 1999 and have been criticised as lacking detail and consistency.314 The reports often only explain the legal situation in member states without giving concrete guidance to states on how to improve the respective laws. However, ECRI started development of its recommendations in the second reporting cycle from 1999 to 2002, continuing to do so. These reports are far longer than the ones of the first reporting cycle, use an increasingly precise language, and reflect ECRI’s matured expertise on how to give guidance to states on legislative and policy measures to counter various manifestations of racism and discrimination. ECRI’s reports of the second cycle are also more consistent and include a section on “issues of particular concern”, thereby drawing attention to a number of concerns which in ECRI’s opinion merit particular or urgent attention. In its reports adopted in the third monitoring cycle (2002 to 2007), ECRI examined the implementation of the main recommendations from previous reports. Moreover, the third round reports continued to examine in depth “specific issues” identified for each member state. During the still ongoing fourth reporting cycle (2008-12), ECRI is concentrating on implementation and evaluation. The reports therefore examine how ECRI’s recommendations issued so far have been followed up by the member states and evaluate current policies and new developments since the last report. It may thus be concluded that ECRI’s recommendations in the country-tocountry monitoring became increasingly focused over the years. After starting with the more exploratory first reporting cycle, core issues for combating racism, xenophobia, anti-Semitism and intolerance have been identified and addressed with increasingly precise and targeted recommendations. Additionally, a focus on assessing the level of implementation has been introduced since ECRI’s third reporting cycle.

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4.3.2.2. ECRI’s general policy recommendations ECRI has elaborated a detailed body of standards, which are reflected and further developed in ECRI’s GPRs.315 The GPRs are described by the commission itself as “[the] second aspect of ECRI’s programme focuses on general themes which are particularly important in combating racism, xenophobia, anti-Semitism and intolerance, as well as specific activities on these subjects”.316 The GPRs are the results of ECRI’s experience gathered in the country-by-country monitoring work and are drawn up in close co-operation with NGOs, civil society and other relevant institutions and bodies after analysing and summarising all recommendations that have ever been made in reports as well as incorporating discussions with the states concerned.317

314 315 316 317

Cf. Hollo 2009: 45. Cf. Kelly 2004: 137. See the website of ECRI at www.coe.int/t/dghl/monitoring/ecri/activities/GeneralThemes_en.asp. Cf. Secretariat of the European Commission against Racism and Intolerance 2009: 4ff.

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Figure 17: ECRI’s general policy recommendations Overview of ECRI’s general policy recommendations GPR No. 1 contains various guidelines for national measures to combat racism and intolerance in general. GPR No. 2 is preoccupied with the establishment of specialised bodies to combat racism and intolerance. GPR No. 3 deals with the measures to combat manifestations of racism and intolerance and discriminatory practices against Roma and Gypsies. GPR No. 4 concentrates on national surveys on the experience and perception of discrimination and racism from the point of view of potential victims. GPR No. 5 broaches the issue of intolerance against Muslims. GPR No. 6 deals with the dissemination of racist, xenophobic and antiSemitic material via the Internet. GPR No. 7 offers guidelines for national legislation to combat racial discrimination. GPR No. 8 is concerned with the combat of racism while fighting terrorism. GPR No. 9 deals with the fight against anti-Semitism. GPR No. 10 offers measures on how to fight ECRI’s main issues of concern in and through school education. GPR No. 11 deals with racial discrimination in policing.

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GPR No. 12 concentrates on racial discrimination in the field of sport. GPR No. 13 deals with combating anti-Gypsyism and discrimination against Roma. ECRI’s GPRs are recommendations addressed to the governments usually with the aim of “ensuring”, “initiating”, “promoting”, “adopting”, or “setting up” policies in various fields to combat racism and intolerance. They are formulated with different degrees of precision. In some GPRs ECRI leaves it largely to the governments to decide how to implement the recommendations, while some GPRs (especially GPRs Nos. 7, 11  and 12) include an explanatory memorandum that goes into more detail on how the recommendations should be implemented by governments. Many of ECRI’s recommendations are directly capable of being implemented by the governments, 128

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for instance, through the introduction of a new law. However, many recommendations issued by ECRI call rather for a process at the national level that should help to combat racism and discrimination. An example of this would be ECRI’s call addressed to states for engaging in a dialogue with the media. The wording of the GPRs is in part normative, and two GPRs stand out especially in this regard: GPR No. 2 has an appendix setting out “Basic principles concerning specialised bodies to combat racism, xenophobia, anti-Semitism and intolerance at national level” and GPR No. 7 includes “Key elements of national legislation against racism and racial discrimination”. In these sections, ECRI makes more explicit statements on what it expects states to do in order to combat racism and intolerance. A comparison of the GPRs reveals that they have become more detailed over time.318 The content of GPR No. 7 builds on GPRs Nos. 1 and 2 to a considerable extent. Over the years, ECRI thus seems to be able to go into more depth with its general recommendations. The reason for this lies in the fact that the impetus for the development of GPRs comes from the country-tocountry reports, which became more detailed over the years as well. ECRI’s increasing experience in the country-to-country approach is thus also reflected in the more generally formulated policy recommendations. ECRI’s work on GPRs has not come to an end yet and the trend of moving into more detailed GPRs seems to continue. The commission recently adopted a GPR on how to fight anti-Gypsyism and thus on a topic for which GPR No. 3 already exists. However, ECRI decided that although GPR No. 3 is not outdated as such, another GPR would be necessary in response to the increasing problems concerning the situation of Roma. It appears that for this reason ECRI made the decision to elaborate on the issue of antiGypsyism in more depth.319

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4.3.2.3. ECRI’s good practices In the context of its work on general themes, ECRI also collects and disseminates examples of “good practices” to combat specific problems of racism and discrimination. After ECRI adopted a “basket of good practices” dealing with a broad variety of issue areas in 1996, the commission collected more focused examples of good practices to fight against racism and intolerance in the media (2000), examples of combating racism and intolerance against Roma/Gypsies (2001) and examples of specialised bodies to combat racism, xenophobia, anti-Semitism and intolerance (2006). The content of these “good practices” is to some degree related to ECRI’s GPRs and the recommendations made therein. However, ECRI in no way regards these

318 Hollo 2009: 90. 319 Authors’ interviews held with members of ECRI’s Secretariat in Strasbourg on 12  and 13 April 2010. The interviews are on file with the authors.

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good practices as recommendations that should be followed by all member states. The overviews of good practices rather illustrate the broad range of measures that may be taken by states to counter specific problems related to racism and discrimination. 4.3.3. The function of the implementation standards developed by ECRI ECRI’s reports offer concrete proposals for changes in the law, policy or practice in a specific country. The main function of these recommendations in the country reports is thus to give guidance on how to tackle specific problems related to racism and intolerance of particular interest in the country in question.

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The more generally formulated GPRs, however, are addressed to all Council of Europe member states and summarise recommendations regarding themes which in ECRI’s view are particularly important for combating racism, xenophobia, anti-Semitism and intolerance. According to ECRI, the main function of GPRs is to provide member states with detailed guidelines which policy makers are invited to use when drawing up national strategies and policies in a variety of fields.320 In this way GPRs also provide valuable inputs for national debates on racism and intolerance. It may thus be concluded that both the recommendations in the country reports and the GPRs are means for ECRI to genuinely define measures that should be taken by states parties to combat racism and intolerance. It is important to note in this context that in doing so, ECRI has a large degree of discretion. The committee, for instance, used a GPR to give its interpretation of the notion of “racism”. According to ECRI’s GPR No. 7, racism “shall mean the belief that a ground such as race, colour, language, religion, nationality or national or ethnic origin justifies contempt for a person or a group of persons, or the notion of superiority of a person or a group of persons”. With this definition ECRI made clear that a broad understanding of the notion “racism” is necessary to give guidance to states on how to combat everevolving manifestations of racism in Europe. The good practices collected and disseminated by ECRI are not recommended to member states, but should rather inspire national policy makers and make them aware of the manifold forms the fight against racism and intolerance may take.

320 European Commission against Racism and Intolerance 2009a: 8; see also Secretariat of the European Commission against Racism and Intolerance 2009: 3.

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4.4. ECSR 4.4.1. The ECSR’s legal basis for standard-setting According to Article 24 of the ESC, as amended by the 1991 Turin Protocol, the ECSR determines whether or not national law and practice in the states parties are in conformity with the Charter. This task is reiterated in Rule 2  of the ECSR’s Rules, according to which the committee shall rule on the “conformity of the situation in States with the European Social Charter, the 1988  Additional Protocol and the Revised European Social Charter”. These rulings adopted in the course of the reporting procedure are named “conclusions” and naturally require the ECSR to interpret norm standards, namely the provisions of the (revised) ESC and its additional protocol. The ECSR is thus the sole interpreter of the Charter’s provisions.321 Since the ECSR has a mandate to interpret and thus describe more concretely the content of these norm standards it may well be argued that it has a mandate to develop implementation standards in its conclusions. 4.4.2. Characteristics of the implementation standards developed by the ECSR 4.4.2.1. The ECSR’s conclusions

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As an outcome of the reporting procedure, the ECSR adopts positive, deferred or negative conclusions for each provision ratified by the member state. While a positive conclusion indicates an adequate implementation of the Charter and a negative conclusion on the contrary indicates the nonconformity with the provisions of the Charter, a deferred conclusion is adopted if the ECSR does not receive enough information to assess the level of compliance. The decisions on conformity or non-conformity with the provisions of the Charter regarding each state party are collected in volumes and are published every year.322 The annual collections of conclusions deal with a number of articles in each reporting cycle.323 They are structured according to four thematic groups dealing with employment, training and equal opportunities (Group 1); health, social security and social protection (Group 2); labour rights (Group 3); and children, families, and migrants

321 Cf. Polakiewicz 2005: 264. 322 Note the difference in the referencing system of these volumes. For the 1961 Charter, the volumes are numbered I, II, III, etc. and for the revised Charter they are numbered 2003, 2004, 2005, etc. 323 See the conclusions of the ECSR available on the expert body’s website: www.coe.int/t/ dghl/monitoring/socialcharter/Conclusions/ConclusionsYear_en.asp.

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(Group 4). Consequently, the committee concludes on each provision once every four years. The English and the French versions of the collection of conclusions are available online at the website of the ECSR and are also available in print. Figure 18: The ECSR’s conclusions Overview of the ECSR’s thematic groups The first thematic group deals with employment, training and equal opportunities. The second thematic group is dedicated to the topics of health, social security and social protection. The third thematic group deals with labour rights. The last thematic group is dedicated to the rights of children, families, and migrants.

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It has been found that with the conclusions arising from the reporting procedure, the ECSR has so far set appropriately rigorous standards in the interpretation and application of the ESC.324 To clarify its position taken in the conclusions, the committee gives statements of interpretation of the articles or paragraphs under review in the general introduction to its annual conclusions. The ECSR thereby has the possibility of refining its interpretation of the Charter in light of new findings or developments in the member states. With these statements of interpretation, the committee gives a clear indication to member states that these respective interpretations apply thereon to all states bound by the respective paragraph or article. The à la carte system of the ESC implies that not all provisions of the (revised) ESC have to be ratified by all states parties. Some nine articles constitute the “hard core” provisions of the Charter from which the states parties must accept at least six provisions. From the remaining articles, the states may select additional ones by which they agree to be bound. It may well be assumed that the interpretations of the ECSR of these articles form the most important implementation standards of this expert body.

324 Cf. Harris and Darcy 2001: 374.

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Figure 19: The ECSR’s hard core provisions Overview of “hard core” provisions of the revised ESC Article 1 establishes the right to work. Article 5 confirms the freedom of association. Article 6 deals with collective bargaining. Article 7 stipulates the right of children and young persons to protection. Article 12 guarantees the right to social security. Article 13 deals with the right to social and medical assistance. Article 16 stipulates the right of the family to social, legal and economic protection. Article 19 establishes the right of migrant workers and their families to protection. Article 20 guarantees the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex. 4.4.2.2. The ECSR’s “Digest of Case Law”

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The ECSR’s Secretariat publishes the “Digest of the Case Law of the Euro­ pean Committee of Social Rights” (“Digest of Case Law”), including its entire interpretation of the Charter’s provision. The sources of the interpretation are the conclusions arising from the reporting procedure, the statements of interpretation and the decisions on admissibility and the decisions on the merits taken in the collective complaints procedure. This digest can be regarded as a compilation of implementation standards as it is a faithful reproduction of the ECSR’s interpretation of the Charter. The entire compilation of the digest can be accessed on the website of the ESC.325 The interpretations of the provisions of the ESC by the ECSR, as summarised in the digest, are highly normative in their content and precise in their language. The ECSR clearly explains what each article of the ESC requires from states. The interpretations are formulated in a manner that does not leave any doubts that the ECSR regards them as compulsory for states parties. Moreover, it needs to be stressed that the ECSR also has the potential to set implementation standards with its collective complaints system. As an example, the ECSR considered in the case International Association AutismEurope (IAAE) v. France326 that states are obliged to assess the impact of their

325 See European Committee of Social Rights 2008. 326 See European Committee of Social Rights 2002: paragraph 53.

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decisions on vulnerable groups, which, if applied across all rulings, may certainly be considered as an implementation standard. The ECSR’s call for an obligation to conduct human rights impact assessments shows that implementation standards can be very specific in their content. 4.4.3. The function of the implementation standards developed by the ECSR The ECSR applies the (revised) ESC to differing realities of any given state party and thus interprets and concretises the provisions of the norm standards. The committee explains in detail why a state is or is not in conformity with the provisions of the Charter. With its conclusions, the ECSR assesses from a legal standpoint the compliance of national law and practice with the obligations arising from the Charter. It may well be said that the committee’s conclusions contain authoritative pronouncements regarding the nature as well as the scope of the social and economic rights guaranteed by the Charter.327 In its “Digest of Case Law”, the ECSR summarises its interpretations of the underlying Charter obligations and in this way gives guidance to states on how to comply with provisions of the Charter. Since the conclusions do not stem from a court they may be understood as having a “quasi-judicial” function.328

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The ECSR itself works on the basis of the Charter and its case law when assessing the conformity or non-conformity of states with the Charter’s provisions.329 For states parties, the digest thus reveals the committee’s expectations and criteria for assessing the conformity with norm standards. The committee is not bound by the digest, but may further develop this compilation in light of new developments in member states or new conclusions. The decisions taken in the collective complaints procedure, which are also included in the “Digest of Case Law”, help the ECSR to further “clarify and refine the position it had adopted with regard to certain rights within the reporting procedure, and to contribute to jurisprudential developments regarding the rights laid down by the Charter”.330

327 Polakiewicz 2005: 266. 328 See Akandji-Kombé 2005: 89. See also Brillat 2005: 32-36. Brillat argues in favour of the quasi-judicial nature of the ESCR procedure because the Charter system also provides for a collective complaints procedure. 329 Cf. European Committee of Social Rights 2008. 330 European Committee of Social Rights 2010: 4.

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5. Typology of implementation standards developed by Council of Europe expert bodies All standards developed by the Council of Europe expert bodies are clarifications and interpretations of how the respective norm standard could or should be implemented by states. However, an analysis of the implementation standards also reveals that they are not homogenous in qualitative terms. As the previous sub-chapters revealed, in practice the expert bodies’ implementation standards oscillate somewhere between the interpretation of legal obligations (for instance, the ECSR’s conclusions) and the formulation of desirable policy options (for instance, ECRI’s good practices). Therefore, a typology of the expert bodies’ human rights implementation standards is proposed here.

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The most decisive qualitative differences among the implementation standards may be observed when looking at (1) the scope of application of an implementation standard, (2) the level of insistence with which the expert bodies call for compliance with an implementation standard, as well as (3) the expert body’s assessment of the risk of a violation of a norm standard. The scope of application may be determined by the number of Council of Europe member states to which the expert body proposes an implementation standard. The level of insistence may be analysed by looking at the expert body’s statements in the individual dialogues with member states. The wording of the recommendations to member states matters in this respect. The consequences of non-compliance with an implementation standard may also be determined by looking at the expert body’s statements in the individual dialogues. The expert bodies’ views on the risk of a violation of a norm standard are of importance in this regard. Figure 20 gives an overview of different types of implementation standards by applying three categories, namely “minimum standards”, “developmental standards” and “best practices” to these standards.331 Apparently, the parameters “level of insistence” and “consequences of non-compliance” proposed for the typology of implementation standards will often intersect. Frequently, the level of insistence on the implementation of a specific implementation standard will be high in cases where the expert bodies observe a high risk of a future violation of a norm standard in case of non-compliance.

331 This categorisation builds on Lantschner 2009.

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In the view of the expert body, the non-compliance with a developmental standard does not result in a violation of a norm standard, but nevertheless poses a certain (low) risk of a future violation of a norm standard. Since expert bodies do not require states to comply with best practices, the noncompliance with best practices does not have any consequences.

The implementation of developmental standards is not claimed vigorously by the expert bodies in the dialogue with states. Expert bodies do not expect other states to follow the best practices of other states, but promote them as a source of inspiration for other states.

are proposed by the expert body only in some Council of Europe member states

are identified in the practice of single member states

Minimum standards

Developmental standards

Best practices

In the view of the expert body, the noncompliance with a minimum standard results in a violation of a norm standard or poses a high risk of a future violation of a norm standard.

The implementation of minimum standards is claimed vigorously by the expert bodies in the dialogue with states.

are proposed by the expert body in all Council of Europe member states

Consequences in case of non-compliance

Level of insistence

Scope of application

Category

Figure 20: Types of implementation standards

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As can be seen from Figure 20, minimum standards are implementation standards that are applied by the expert body in all Council of Europe member states. The Council of Europe expert bodies vigorously claim the implementation of such standards in their dialogues with states. This might often be the case, because in the view of the expert body the non-compliance with a minimum standard results in a violation of a norm standard or poses a high risk of a future violation of a norm standard. The most obvious examples of minimum standards developed by the Council of Europe expert bodies are the CPT standards regarding safeguards; ECRI’s GPRs on national legislation to combat racism, and on specialised bodies, as well as those parts of the ECSR’s “Digest of Case Law” that deal with the core articles that have to be ratified by all member states. It appears, however, that the entirety of implementation standards summarised in the expert bodies’ general compilations, namely the thematic commentaries (ACFC), the CPT Standards, the general policy recommendations (ECRI) and the “Digest of Case Law” (ECSR), constitute the minimum standards for each expert body. The fact that these implementation standards are published in general compilations reveals that they are (or at least should be) applicable to all member states in the view of the expert bodies. Consequently, the implementation standards brought together in these compilations are also frequently cited and followed rigorously in the dialogue with member states. Developmental standards are, however, not applicable to all member states in a uniform manner, and expert bodies do not vigorously claim the implementation of developmental standards in the dialogue with states. In the view of the expert body, the non-compliance with a developmental standard does not result in a violation of a norm standard, but nevertheless poses a certain (low) risk of a future violation of a norm standard. These are termed developmental standards, because these standards are subject to modifications as expert bodies develop them over time due to changing circumstances or new human rights challenges in member states. Over the years, certain developmental standards might be consistently applied and vigorously repeated by expert bodies vis-à-vis all Council of Europe member states. Under such circumstances, developmental standards then may become minimum standards. Best practices are identified in relation to a specific member state. When expert bodies publicise such best practices of one state they do not expect other states to follow this example. Thus the non-compliance with best practices does not have rigorous consequences. From the perspective of the expert bodies, best practices rather serve as a source of inspiration for states on how to implement human rights obligations. They are issued by expert bodies to describe a particularly prominent form of implementation which is conducive to the fulfilment of the objectives of the norm standard. The most prominent example of such best practices is ECRI’s compilation of good practices. 137

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It shall, however, be made clear that a strict classification of implementation standards must remain an approximation to reality – a model that can be derived from the analysis of the expert bodies’ practice of developing different kinds of implementation standards. Of course, any such categorisation of implementation standards is not made intentionally by the expert bodies. On the contrary, it may well be assumed that developing and proposing implementation standards of different kinds is not a conscious process, but rather a reaction to the requirements the dialogue with individual member states necessitates. Therefore the boundaries between the different types of implementation standards will often overlap and might even be in a state of flux. This can be illustrated well by Figure 21.332 Figure 21: Typology of implementation standards

Risk of a violation of a norm standard in per cent

100

50

0 Minimum standard

Developmental standard

Best practice

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Category of implementation standard

The monitoring and standard-setting task of the expert bodies as well as the typology of implementation standards may be illustrated with a gardening metaphor, which is illustrated in Figure 22.

332 As will be shown in Chapter V, the differentiation of implementation standards proposed here is necessary when assessing the relevance of these implementation standards for the development of the European human rights order.

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Minimum standard

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Developmental standard

Best practice

Figure 22: A flower chart

All the flowers in this chart (representing different conditions of human rights implementation standards) need care and devotion, which is primarily provided by the owner of the garden (that is the member state). Flowers, however, are not always easy to take care of, especially if they grow and 139

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blossom under difficult conditions (for instance, the fight against terrorism, the influx of migrants). Therefore, the owner of the garden employs a gardener (expert body) and asks him to keep a watchful eye on all the flowers of the garden. The gardener indeed knows how best to cultivate these flowers, especially as he also observes flowers in the neighbouring gardens, and in this way has already gained substantial experience. As can be seen in the chart, the work of the garden owner and the gardener has yielded different results. There are flowers with a beautiful blossom (best prac­tices) growing in the garden that represent the joy of the owner of the gar­den, and also the pleasure of the gardener. The owner of the garden is proud of these flowers and often shows these beauties to his neighbours. The gardener, however, takes his job very seriously and tries to make the garden even more beautiful by filling the entire garden with blooming flowers. Thus, he tries to make each flower grow. This is a difficult job, however, because some flowers apparently have not yet been given enough care by the owner of the garden and are currently growing slowly: as can be seen, some sprouts have not even made their way out of the earth and risk dying even before they reach sunlight (minimum standards; violation of norm standard or high risk of a violation of norm standard). Some other sprouts have reached the sunlight and developed into stalks with small leaves and some have even developed a bud that might soon bloom (developmental standards) – nice, but not a flower which would impress the neighbours. The gardener thus chooses wisely how much attention he has to draw to each of these flowers. First, he takes care of the sprouts, knowing that they deserve the most attention. He advises the owner of the garden to take particular care of them and waters them according to a strict schedule. After he is sure that the owner of the garden knows how to handle these sprouts, he devotes his efforts to removing some grass around the stalks, so that they have enough space to grow.

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6. Conclusions All of the four Council of Europe bodies under examination share a genuine supervisory function incorporating not only the monitoring of the implementation of human rights, but also the task of giving guidance to states for further implementation. This guidance is made by the expert bodies through their country-to-country work and is summarised by them in compilations. In this way, the ACFC, the CPT, ECRI and the ECSR in practice develop human rights implementation standards in the course of their supervision. With these implementation standards, they clarify and interpret the content of norm standards. Being able to build on their first-hand experience the Council of Europe expert bodies are very well positioned to develop and update such implementation standards. 140

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Two of the expert bodies, the ACFC and the ECSR, base their monitoring work on a catalogue of legally binding provisions, against which the human rights situation in the states is measured. By contrast, the CPT and ECRI are each mandated to advise states on how to prevent the violation of one principle each – respectively the prohibition of torture and inhuman or degrading treatment, and the principle of combating racism, racial discrimination, xenophobia, anti-Semitism and intolerance. These are two quite different starting points which have an impact on the broadness of the mandate and on the role and function of the expert bodies’ implementation standards. While the CPT and ECRI are tasked with defining the cordon sanitaire around a norm standard, the ACFC and the ECSR interpret norm standards that are comparatively precise already. The degree of discretion for developing implementation standards for the prevention of human rights violations is thus broader for the CPT and ECRI than it is for the ECSR and the ACFC. Consequently, the standard-setting function is also more pronounced for the CPT and ECRI than is the case for the ACFC or the ECSR. A further distinction can be made as the ACFC works on the basis of a framework convention, leaving more room for interpretation than is the case for the ECSR. The latter committee may even be regarded as a body with quasi-judicial functions as it is interpreting rather precisely defined norm standards in an authoritative manner. It is significant in this context that the labelling of the outputs as “case law” (ECSR), “thematic commentaries” (ACFC), “standards” (CPT), or “policy recommendations” (ECRI) is enlightening for the analysis of the role and function of these standards. The CPT, as one of the bodies with the broader mandate to set implementation standards, is the only committee which explicitly makes use of the notion “standard” to describe the measuring rods developed by the committee itself for its monitoring procedure. The term “general policy recommendations” similarly implies that ECRI may develop a genuine set of recommendations for combating racism and discrimination. The notions of the “Digest of Case Law” and “thematic commentary”, however, imply that the elaborating bodies interpret norm standards in a quasijudicial manner (ECSR) or give their commentaries on norm standards in the form of implementation standards (ACFC). Considering the time factor, it can be observed that the ECSR as the oldest expert body holds the most voluminous compilation of implementation standards. The CPT, as the second oldest committee, also works with a relatively broad corpus of CPT Standards. Concerning ECRI, there are 13 GPRs so far, and the youngest expert body, the ACFC, has only two thematic commentaries to date. All of these compilations are still subject to dynamic development and may thus be considered as “living instruments”. The most important trend in the characteristics of implementation standards of all expert bodies, however, is that they are also developing in qualitative terms. All sets of implementation standards are becoming more detailed, more thorough and more comprehensive over time. It is a common practice that expert 141

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bodies adapt their implementation standards over time due to changing circumstances or new human rights challenges in member states. If regarded necessary, they also develop new implementation standards from scratch. The monitoring of each individual member state thereby regularly informs the expansion and revision of the compilations of implementation standards. Since the expert bodies’ implementation standards are not carved in stone, they are more easily amendable, if necessary, than the legally binding norm standards, either through a revision or an update by the expert bodies themselves. This flexibility is indeed the most important advantage of implementation standards when compared to norm standards.

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It was found that an “institution that can make binding rules obviously poses a greater issue of legitimacy than those that can only adopt resolutions or make recommendations”.333 According to this rationale, the requirements for legitimacy of implementation standards are not necessarily as high as for binding norm standards since the Council of Europe expert bodies’ standards are not legally binding rules. It has been shown, however, that there are a number of factors that may well legitimise the expert bodies’ implementation standards. Nevertheless, it is questionable whether one of the factors mentioned above is alone sufficient in inducing the legitimacy of the Council of Europe expert bodies’ work. It rather appears that it is a combination of all the factors that contribute to the legitimacy of these bodies’ standards. A closer look at the legitimacy-inducing factors related to the processes and procedures for standard-setting, and the quality of the standards, reveals that it is also largely in the hands of the expert bodies themselves to increase or decrease the legitimacy of their implementation standards. In practice, the expert bodies’ implementation standards have different functions and not least for that reason they may be divided into different categories, namely minimum standards, developmental standards and best prac­ tices. Due to the dynamic characteristics of the implementation standards, the boundaries between these categories, however, may often be in flux. The differentiation between different types of implementation standards may have an influence on the required degree of legitimacy. Since minimum standards are requested of states more vigorously by expert bodies, it may well be argued by states that these standards are in need of a higher degree of legitimisation. At the other end of the spectrum, the best practices proposed by expert bodies are not intended to be implemented by other states and might therefore require only a lower level of legitimisation. The impact expert bodies may achieve through their implementation standards on the legal and practical human rights situation in member states largely depends on the states’ behaviour and their co-operation with the Council of Europe expert bodies. Therefore, Chapter V will focus on this issue in more detail.

333 Bodansky 2008: 316.

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Chapter V The impact of implementation standards of Council of Europe expert bodies in member states 1. Assessing the impact of implementation standards of Council of Europe expert bodies

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Overview of main questions that will be addressed in this chapter Implementation standards developing the European human rights order

To what extent may the implementation standards set by Council of Europe expert bodies be regarded as soft law or even hard law? What impact do the expert bodies’ implementation standards have on the European human rights order? Are implementation standards an alternative to human rights treaties?

The dialogue between the expert bodies and the states parties as the basis for measuring the impact of implementation standards

How can the dialogue between the Council of Europe expert bodies and the state parties be analysed to measure the impact of these bodies’ implementation standards on the respective national human rights situations? What may be gained from such an analysis?

Human rights indicators as a basis for measuring the impact of implementation standards

What are human rights indicators? Why are human rights indicators important for measuring the human rights performance of member states? What role may implementation standards of the Council of Europe expert bodies take on in the process of developing human rights indicators and national benchmarks?

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We assume that the implementation standards set by the ACFC, the CPT, ECRI and the ECSR analysed in Chapter IV have various impacts in the Council of Europe member states. While none of the implementation standards developed by the ACFC, the CPT, ECRI or the ECSR are legally binding per se, they nevertheless indicate to states that compliance is expected from them. In this sense, they do have similarities with legal norms. In international law, in fact, the legal impact of non-binding instruments is in many cases not much inferior to that of hard-law instruments, especially when they are applied in a more regional setting such as the Council of Europe.334 This holds especially true for human rights treaties, which are living instruments requiring a dynamic interpretation that may well be provided by expert bodies. Thus, the implementation standards of the Council of Europe expert bodies cannot be ignored in a legal discussion on the content and scope of the norm standards and their constitutive elements. It appears that implementation standards have to be considered in good faith in this context. However, the question arises as to what extent may the different types of implementation standards have a legal impact on the Council of Europe member states? Are the implementation standards soft law, or may they even be regarded as hard law? To answer these questions, this chapter discusses the extent to which the implementation standards developed by the four Council of Europe expert bodies may exert an influence on the development of the European human rights order. A special focus is given to the question of whether and to what extent the expert bodies’ implementation standards may be considered as a more effective alternative to treaty-making. Beyond the legal impact, it can hardly be ignored that the implementation standards are also a de facto help to improving the human rights situation in member states. Over the years, the expert bodies achieved a certain degree of success in advancing the national human rights situations through their recommendations on how to comply with treaty obligations, and thus on how to prevent human rights violations. However, it is everything but a straightforward task to measure the exact influence and impact of the monitoring bodies’ work on the member states’ behaviour. Only rarely is it possible to establish sound causal pathways between a monitoring body’s recommendations and a change in the law or practice of a state party. Obviously, many reasons may cause a state to change its law or practice. The adoption of new legislation or a revised practice at national level can be the result of the recommendations made by an expert body, but could also be influenced by other factors be it political (for instance, a new ruling party) or social (for instance, pressure exercised by NGOs and civil society). The actions which ultimately triggered such a development can hardly be identified with certainty. Furthermore, it has to be taken into due consideration that the norm standards at stake do not specify in detail their respective constitutive ele334 See Shelton 2000: 1; Polakiewicz 2005: 287ff.

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ments, leaving each state with a certain “margin of appreciation” when deciding on how the obligations should be implemented at the domestic level. The expert advice given by the Council of Europe bodies in the form of implementation standards is thus only one, albeit informed, proposal as to how norm standards may be implemented. It remains up to the political will and the capacity of states parties to take up exactly the Council of Europe expert bodies’ recommendations in order to realise a norm standard.

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Nevertheless, there have been attempts to measure the impact of the Council of Europe human rights expert bodies on the human rights situation in member states. The former Council of Europe Directorate General of Human Rights and Legal Affairs published two studies on the impact of its monitoring bodies on the respect for human rights and the rule of law in its member states.335 These studies include a selection of good examples where the Council of Europe member states have taken “measures to improve the position regarding human rights, and also against corruption and money laundering, whether directly or indirectly, wholly or partially, as a result of the action of one of the [Council of Europe] monitoring mechanisms”.336 While these studies certainly reveal selective achievements in the area of human rights, achievements as a result of the expert bodies’ recommendations, they hardly focus on the member states’ perspective regarding the expert bodies’ implementation standards and recommendations. We assume and will elaborate in more detail that the states’ acceptance of and compliance with the expert bodies’ implementation standards are essential factors for determining the impact of human rights implementation standards in member states. For this reason, an analytical framework to examine more closely the dialogue between the expert bodies and the member states is proposed here as a means to measure the impact of the Council of Europe expert bodies’ implementation standards on the human rights situation in member states. Moreover, a typology of case studies that could be made on the basis of this analytical framework is offered. Analysing the ongoing dialogue between the Council of Europe expert bodies and the states parties, regarding the acceptance of and the compliance with human rights standards, is only one method of evaluating the human rights situation in the Council of Europe member states. Given that this dialogue can only reflect the viewpoints of the dialogue partners, it does not necessarily provide for unbiased results. Therefore, it would be useful to have a methodology at hand that allows for an objective and consistent measurement of the compliance with human rights norm standards in light of the implementation standards in the Council of Europe member states. For this purpose, the recent trend of developing human rights indicators for measuring the human rights performance of member states will be reviewed 335 Cf. Council of Europe 2010. 336 Ibid: 7.

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in detail in this chapter. After outlining the process of identifying human rights indicators and distinguishing between different types of indicators, the use of human rights indicators for defining national benchmarks, conducting human rights impact assessments and creating indices is discussed. Particular attention is drawn to the role the Council of Europe expert bodies and their implementation standards may play in the process of developing human rights indicators.

2. The relevance of implementation standards for the development of the European human rights order

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2.1. Implementation standards: non-law, soft law or hard law? Non-binding instruments of international law, such as the general comments of UN expert bodies, are often discussed under the notion of “soft law” as opposed to “hard law”. In the absence of a commonly agreed definition of soft law, we assume that implementation standards of the Council of Europe expert bodies under examination may likewise be considered as soft law, if three main requirements are fulfilled.337 First, they must not have passed through all of the stages prescribed for international law-making, otherwise they would have to be regarded as hard law. Secondly, they have to generally express common expectations vis-à-vis states concerning the implementation of human rights norm standards. Thirdly, if implementation standards of Council of Europe expert bodies were to be qualified as soft law, they have to be characterised by a certain proximity to the law and must have the capacity to produce certain legal effects, such as the adoption of new legislation at national level. When applying these three criteria for soft law to the three categories of implementation standards, namely minimum standards, developmental standards and best practices, it appears that some of the range of implementation standards developed by Council of Europe expert bodies does not fall under the category of soft law. The three categories of implementation standards do not stem from any of the formal sources of public international law as laid out in Article 38 of the Statute of the International Court of Justice. Thus they have not passed through the stages prescribed for international law-making. In turn, the degree of obligation that is associated with the three categories of implementation standards, their proximity to the norm standard, as well as their capacity to produce legal effects, all differ considerably. It appears that only minimum standards might be described as 337 Cf. Thürer 2008.

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a pre-legal phenomenon that may be labelled “soft law”. Only the minimum standards developed by the ACFC, the CPT, ECRI and the ECSR carry significant moral and persuasive force and are characterised by the required proximity to the norm standard. By contrast, developmental standards and best practices have to be regarded as “non-law”, especially because they do not exert as strong a pull for compliance. .

Although there are various reasons that could explain the states’ choice of soft law over hard law instruments,338 the question arises whether, and under what conditions, implementation standards developed by Council of Eur­ ope expert bodies may even attain a higher legal status than non-law or soft law. More specifically, the question arises if and under what circumstances implementation standards may even become legally binding hard law. In the following, an overview is given of four scenarios in which implementation standards developed by Council of Europe expert bodies could gain a stronger, more pronounced legal character that would qualify them as hard law.

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First, an implementation standard may be the source of inspiration for national law. A state may thus adopt national legislation building on the monitoring body’s implementation standard and, as a result, the state party concerned is legally bound by this national law. Secondly, implementation standards may help in shaping consensus for multilateral treaties and may be incorporated into a new international treaty or might inform a treaty revision. As a result, the new or revised treaty is legally binding hard law for the states parties ratifying it. Thirdly, a judgment by the European Court of Human Rights may refer to an expert body’s implementation standard. As a result, the judgment is binding for the party concerned and may become binding for all member states if referred to in subsequent judgments as a precedent.339 In this way, implementation standards may become part of the ECHR norm standard, gain further legitimacy and also acquire legally binding force.340 Fourthly, implementation standards may develop into (regional) customary law if opinio iuris and state practice are established for a particular implementation standard. As a result, the implementation standard is binding for all states, unless there are persistent objectors. It thus becomes clear that an implementation standard that has been developed by a Council of Europe expert body may only gain legal relevance if a state or a group of states explicitly or implicitly decide that they wish to be bound by an implementation standard, or if the European Court of Human Rights builds on an implementation standard in a judgment. The first three possible ways by which implementation standards might become hard law are somewhat different from the last one mentioned above. In the first

338 Cf. Shelton 2000: 11-13. 339 See Polakiewicz: 272ff. 340 Ibid: 289.

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instances, the implementation standards inspire actions by states (cases one and two) or the Strasbourg Court (case three). Thus the implementation standards in these cases gain legal relevance only in an indirect manner. In case four, the implementation standards may become hard law directly, without a formal decision by states or courts, if they are accepted and complied with by states. The required proof of customary law, however, would necessitate in-depth studies examining the opinio iuris and state practice in relation to a specific implementation standard. Certainly, opinio iuris defined as the “belief that [a] practice is rendered obligatory by the existence of a rule of law requiring it”341 is always difficult to establish. However, lawyers usually ask whether practice is consistent and widespread enough that opinio iuris can be presumed.

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From the categorisation of implementation standards into minimum standards, developmental standards and best practices, it becomes also clear that not all types of implementation standards have the same potential to become hard law, neither indirectly through new or revised treaties, nor through court decisions, nor directly through the creation of new customary law. While minimum standards and developmental standards may both have an impact on a new treaty or a treaty revision, or may exert an inspiring influence on court decisions, best practices appear to have only a minor impact on such a development of the human rights order. The main reason lies in the fact that only rarely can best practices be subject to generalisation, a prerequisite for legally binding norms. When it comes to the potential creation of customary law through implementation standards by Council of Europe expert bodies, the distinction between minimum standards and developmental standards is important. Apparently, only minimum standards have the potential to become customary law if they pass the test of opinio iuris and state practice. Developmental standards are per definitionem not consistently and uniformly applied by expert bodies in all member states. Therefore, these standards will most likely not find sufficient acceptance and compliance in member states to pass the test of customary law. However, it should not be ignored here that over the years a developmental standard might frequently and consistently be repeated and be followed more vigorously by expert bodies vis-à-vis all Council of Europe member states. This will usually happen if the average level of implementation has increased in member states, and expert bodies feel that compliance by all member states can be achieved. Under such circumstances, a developmental standard may turn into a minimum standard. As soon as it may be qualified as a minimum standard, the expert body’s standard has the potential to become customary law if it passes the test of opinio iuris and state practice. This potential development of different types of imple-

341 International Court of Justice 1969: paragraph 77.

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mentation standards from non-law to soft law and eventually hard law is illustrated in Figure 23. Figure 23: The potential transformation of non-law into international hard law non-law

soft law

hard law

developmental standards

minimum standards

new treaty

best practices

judgment by the Strasbourg Court customary law

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2.2. Implementation standards as an alternative to treaty-making? Researchers and human rights activists increasingly argue that many human rights treaties exist, yet which in practice lack compliance by states.342 Particular criteria that were identified for effective international legislation, such as speed, clarity and uniformity; universality of participation; and flexibility and adaptability were found to be insufficiently provided by traditional treaty law.343 Instead, the effectiveness of international human rights norms was found rather to depend on factors such as reciprocity, publicity and the resulting “mobilisation of shame”, and thus not merely on their legal quality.344 Similarly, a shift in the approach of international organisations could be observed in practice, namely from developing and adopting new legally binding human rights treaties, to focusing on means to increase compliance with obligations already entered into by states.345 All these developments have been discussed for some time under the topic of “alternatives to treatymaking” in academic discussions and research.346 The monitoring of human rights by independent expert bodies, as performed by the four Council of Europe expert bodies looked at in this book, has been 342 343 344 345 346

See, for instance, the essays in Ulfstein, Marauhn and Zimmermann 2007. Cf. Neuhold 2005: 40-48. See ibid: 50ff. Mutua 2007: 548. See, for instance, the results of a seminar in November 2003 in Heidelberg, Germany, published in Wolfrum and Röben 2005; see also Shelton 2000; Risse, Ropp and Sikkink 1999; Fastenrath 1993.

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identified as a prime example of alternative human rights strategies.347 Indeed, the Council of Europe provides the most developed system for the protection and promotion of human rights at regional level348 and has, as has been shown in the previous chapters, accumulated extensive experience in the field of monitoring and standard-setting. Yet can these activities by independent expert bodies be considered as an alternative to treaty-making by states? It certainly has to be acknowledged that the process of monitoring human rights in all Council of Europe member states by the four expert bodies under examination constitutes an important contribution to the improvement of the human rights situation of individuals in the Council of Europe member states. The implementation standards developed in the course of the monitoring activities also have some clear advantages when compared to the underlying norm standards. More specifically, these implementation standards may be adopted faster than new treaties, they might give clearer indications to states on what is expected from them, they might be more flexible and adaptable than treaties and, depending on the type of implementation standard, they might even be applied in a uniform manner with universality of participation. Nevertheless, the various types of monitoring and standard-setting activities require a legal basis and have to build on norm standards agreed upon by states that can be applied in the supervision. Since these norm standards are usually international treaties, the latter may not simply be replaced by monitoring activities and the adoption of resulting implementation standards. The standard-setting function of the Council of Europe expert bodies, for similar reasons, is unable to replace the process of new treaty-making. Therefore, implementation standards cannot simply substitute treaties, because they per definitionem are adopted by independent expert bodies for the clarification and interpretation of exactly these kinds of norm standards.

3. Tracing the expert bodies’ dialogue with member states to measure the impact of implementation standards 3.1. Analytical framework for the assessment of the expert bodies’ dialogue with member states This sub-chapter aims at providing an analytical framework for case studies to assess the ongoing dialogue between the different Council of Europe expert bodies and member states. The core question that may be answered 347 Cf., for instance, Harris and Darcy 2001: 374. 348 Cf. Smith 2003: 92.

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by such case studies is whether the implementation standards are accepted and implemented by member states. It needs to be stressed, however, that the case study methodology proposed in the following does not allow for definitive conclusions on the actual level of implementation of the relevant norm standards or implementation standards in the Council of Europe member states’ law and practice. Instead, it helps to trace the dialogue between the expert bodies and member states to address the question of the states’ acceptance of and compliance with the expert bodies’ implementation standards from the viewpoint of both parties. Although these two perspectives may diverge in practice, analysing the sometimes contradictory viewpoints taken in the dialogue – expert bodies on the one side and state authorities on the other side – is regarded as a useful approach in determining the impact of implementation standards in member states. The analytical framework for case studies proposed here comprises four elements. Firstly, the reactions by member states to implementation standards proposed by the Council of Europe expert bodies will be categorised into four “impact levels” describing possible levels of acceptance of and compliance with the expert bodies’ implementation standards. Secondly, the sources to be analysed for assessment will be described separately for the ACFC, the CPT, ECRI and the ECSR. Thirdly, a proposal as to how to include the time perspective in case studies will be described. Finally, concrete questions that could be examined in case studies for the evaluation of the level of acceptance and compliance will be suggested.

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3.1.1. Categorising the states’ reactions to implementation standards proposed by the Council of Europe expert bodies The formal procedures of the dialogues of the ACFC, the CPT, ECRI and the ECSR with member states have been discussed in detail in Chapter III. It was shown that all Council of Europe bodies are based on different reporting mechanisms and monitoring cycles and use different sources of information for their supervision and their resulting assessments. Despite these differences, it is common to all these bodies to entertain a dialogue with the states parties in which the monitoring results and recommendations are at some point transmitted to states that may then in some way comment on the expert bodies’ findings. The national authorities, or in the case of the ECSR, the states’ representatives in the Governmental Committee, may take up various positions when confronted with an expert body’s finding regarding the legal and practical human rights situation and the resulting recommendations. They may express their appreciation for the expert body’s opinion and regard it as useful advice on how to realise a norm standard. However, states may also disapprove the recommendations, regard them as not applicable to the country’s specific human rights situation, or argue that the aim of a recommendation has already been met by another (legal) initiative taken by the state. However, it is important to note that even if a state formally 151

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agrees with an expert body’s finding and the resulting recommendations, this does not necessarily mean that any action is taken by it for the practical implementation. For various political or practical reasons a state may refrain from implementing a recommendation that has formally been approved by it. Therefore, for an accurate assessment of the dialogue, a distinction has to be made between the formal reactions in the dialogue and the factual reactions by states. More specifically, a distinction between “acceptance” and “compliance” has to be made. “Acceptance” refers to the state authority’s formal acknowledgement of a specific proposal made by the expert body as expressed in the dialogue. With the formal acceptance of a recommendation, a member state may also indicate that it feels to be at least politically or even legally bound by the respective recommendation. “Compliance” refers to the actual implementation of an expert body’s proposal in national legislation and/or practice, and therefore constitutes the ultimate goal of the expert bodies’ efforts. The importance of distinguishing between the states’ acceptance and compliance comes forward notably during legal assessments that aim to prove the emergence or development of customary law. In this legal context, the level of acceptance is of particular relevance to establish opinio iuris, while the level of compliance is of particular relevance to establish state practice. When considering the possible levels of acceptance of and compliance with implementation standards in member states, the following four types of state reactions may be distinguished that may serve as an analytical framework for case studies.

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(1) The implementation standards are accepted by a state and actions are then taken or have already been taken for their implementation. This is certainly the ideal result from the expert body’s point of view and may indicate that an implementation standard has a high impact at the national level. (2) The implementation standards are accepted by a state but no immediate actions are then taken or have been taken by the respective authorities to implement them. Nevertheless, the state concerned may assure the expert body that plans for a future implementation of its recommendation exist. This reaction by a state indicates that the expert body’s recommendations are taken seriously and efforts are foreseeable to implement them. (3) The implementation standards are accepted by a state but no action is taken or proposed to implement them. This reaction might occur in case a state in abstracto agrees with the expert body’s proposal, but in concreto does not deem it necessary or opportune to take the proposed action for implementation. This could be due to different perceptions of human rights situations or could be the result of diverging evaluations on how to best implement a norm standard. 152

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(4) The implementation standards are not accepted by a state, or are even challenged, and consequently no implementation is foreseen at national level. This is certainly the least desirable reaction from the expert body’s point of view. Recommendations falling on deaf ears in member states indicate a non-existent impact of the expert body’s implementation standards. These four cases may be illustrated by Figure 24 outlining the four impact levels a recommendation or implementation standard may have in a member state.

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Figure 24: Possible impact levels of implementation standards Impact level

Level of acceptance

3

Implementation standards are accepted.

Specific actions are taken for the implementation of implementation standards.

2

Implementation standards are accepted.

No immediate actions are taken for the implementation of implementation standards, but plans for future action exist.

1

Implementation standards are not challenged.

No actions are taken or proposed for the implementation of implementation standards.

0

Implementation standards are challenged.

No actions are taken or proposed for the implementation of implementation standards.

Level of compliance

3.1.2. Sources to be analysed for the assessment In order to assess the dialogue between a Council of Europe expert body and a particular state, to determine the respective impact level, a series of written sources have to be analysed and evaluated. The bases for such investigations are firstly all documents adopted and decisions taken by the expert bodies, and secondly all responses including further information provided by the states. In the following, an overview of the relevant sources is given for each of the four Council of Europe expert bodies under examination. Sources relevant for the ACFC: Building on the state reports submitted by national authorities, the ACFC adopts country-specific opinions in respect of each article of the FCNM. 153

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The opinions contain a section on main findings and comments or, more recently, an overview of positive developments, issues of concern, as well as recommendations which are of particular relevance for the analysis of the expert body’s viewpoint regarding the human rights situation in a member state. The state concerned may comment on these opinions. Having examined the ACFC’s opinions and having taken note of the government’s comments as well as comments by other governments, the Committee of Ministers adopts a resolution outlining positive developments, issues of concern, as well as specific recommendations. The state reports, the ACFC’s opinions, the states’ comments, as well as the Committee of Ministers resolutions are available on the ACFC’s website.349 Sources relevant for the CPT: The prime sources for the assessment of the CPT’s dialogue with a member state are the CPT reports to the governments. Apart from the CPT’s substantial findings and the resulting recommendations in these reports, the paragraphs on the co-operation received during the visit, as well as the sections regarding the immediate observations under Article 8, paragraph 5, of the ECPT, deserve particular attention for the analysis, as they contain information on the general level of co-operation between the expert body and the government concerned. Furthermore, in a case where the CPT has issued a public statement according to Article 10, paragraph 2, of the ECPT, the information contained in these statements also deserves particular attention. It is a common practice required by the CPT, although lacking a formal legal basis, that governments comment on the CPT reports. These state authorities’ views are set out in their responses to the CPT reports in separate documents. The published CPT reports, government responses, along with the public statements are available on the CPT’s website.350

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Sources relevant for ECRI: ECRI publishes its analyses and proposals concerning the human rights situation in member states in its country-to-country reports. The expert body also provides governments with the opportunity to attach their comments and viewpoints on ECRI’s report in an appendix to the country reports. ECRI also introduced the practice of publishing statements on topical human rights issues in member states to draw attention to particularly urgent situations. These statements regularly refer to prior country reports and point at deteriorating situations and might therefore also be considered for the analysis of the dialogue. ECRI’s country reports, including the appendix containing the governments’ viewpoints, and ECRI’s statements are available on ECRI’s website.351 349 See the ACFC’s website at www.coe.int/t/dghl/monitoring/minorities/3_FCNMdocs/ Table_en.asp. 350 See the CPT’s website at www.cpt.coe.int/en/docspublic.htm. 351 See ECRI website: www.coe.int/t/dghl/monitoring/ecri/activities/countrybycountry_en.asp.

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Sources relevant for the ECSR: Having received the states’ reports, the ECSR rules on the conformity of the situation in states with the (revised) ESC and adopts respective conclusions which form the main source for the analysis of this expert body’s viewpoints. The Governmental Committee then considers the follow-up to the decisions of non-compliance in the months following their publication and the representatives of individual member states may present their positions and steps of implementation in the meetings of the Governmental Committee. The Governmental Committee draws up a report to the Committee of Ministers according to Article 27 of the Charter. This report also includes the viewpoints of the representatives of the state party to the (revised) ESC. If the Governmental Committee considers that it is not envisaged by a state to remedy a violation, it may propose that the Committee of Ministers address a recommendation to the state concerned. The state reports, the ECSR’s conclusions, the Governmental Committee’s report and the Committee of Ministers’ resolutions and recommendations are available on the ECSR’s website.352 3.1.3. Considering the time perspective The four expert bodies under examination have been actively monitoring human rights for different periods of time, ranging from 13 years (ACFC) to almost 45 years (ECSR), and thus have diverse histories of supervision. Figure 25 gives an overview of when the expert bodies started their supervision activities, the periodicity of their regular monitoring activities, as well as the average number of reports that have been completed by each body in relation to its states parties. Figure 25: Overview of supervision cycles of Council of Europe expert bodies

ACFC

Start of monitoring activities 1999

CPT

1990

ECRI

1997

ECSR

1969

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Expert body

Average number Average periodicity of reports completed of monitoring per state party five-year cycle 2.2 four to five-year 5.4 cycle five-year cycle 3.3 each provision reported on once 10.7 every four years

The number of supervision cycles completed varies among the four monitoring bodies. Figure 26 summarises the number of supervision cycles and available reports that have been completed in each member state of the Council of Europe by each expert body under examination. 352 See the ECSR’s website at www.coe.int/t/dghl/monitoring/socialcharter.

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Figure 26: Number of opinions or reports completed per country

ACFC opinions

CPT reports/ public statements

ECRI country reports/ statements

ECSR reports on ESC/ revised ESC

Albania

2

8

4

0/6

Andorra

not signed

2

3

0/4

Armenia

3

4

3

0/5

Austria

2

5

4

28/0

Azerbaijan

2

2

3

0/4

not ratified

5

4

11/5

Bosnia and Herzegovina

2

3

2

0/1

Bulgaria

1

6

4

0/8

Croatia

3

3

3

5/0

Cyprus

3

4

4

0/8

Czech Republic

2

5

4

0/8

Denmark

2

4

3

30/0

Estonia

2

4

4

0/8

Finland

3

4

3

0/6

France

not signed

10

4/1

0/10

Georgia

1

5

3

0/4

Germany

3

5

4

27/0

not ratified

9/1

4

21/0

3

6

4

6/0

Iceland

not ratified

3

3

24/0

Ireland

2

5

3

0/8

Italy

3

8

3/1

0/10

Latvia

1

4

3

6/0

Liechtenstein

3

3

3

not ratified

Lithuania

2

4

4

0/8

not ratified

4

3

14/0

2

6

3

14/3

Council of Europe member state

Belgium

Greece Copyright © 2011. Council of Europe. All rights reserved.

Hungary

Luxembourg Malta

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ACFC opinions

CPT reports/ public statements

ECRI country reports/ statements

ECSR reports on ESC/ revised ESC

Moldova

3

9

3

0/7

Monaco

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Council of Europe member state

not signed

1

2

not ratified

Montenegro

1

2

0

0/0

Netherlands

1

7

3

20/4

Norway

2

4

4

0/8

Poland

2

4

4

10/0

Portugal

2

7

3

0/6

Romania

2

7

3

0/10

Russian Federation

2

1/3

3/1

0/0

San Marino

3

3

3

not ratified

Serbia

2

2

2

0/0

Slovakia

3

4

4

7/1

Slovenia

2

3

3

0/10

Spain

2

11

4

23/0

Sweden

2

5

3

0/10

Switzerland

2

5

4/1

not ratified

“The former Yugoslav Republic of Macedonia”

2

8

4

4/0

Turkey

not signed

20/2

4

15/3

Ukraine

2

6

3

0/3

United Kingdom

2

14

4

30/0

84

254/6

155/4

295/164

TOTAL

Obviously the acceptance of and the compliance with the expert body’s implementation standards may increase as well as decline over time. It might, for instance, be the case for one expert body to achieve a lot of success in terms of implementation during the first monitoring cycle, whereas another body may not achieve substantial improvements in the first phase since its implementation standards might not yet have gained sufficient acceptance 157

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during its short time of existence. Some monitoring reports might reiterate the same critical findings and recommendations in consecutive monitoring cycles and thus clearly demonstrate that no appropriate measures have been taken by the states to remedy the respective situation. However, even already acquired acceptance of implementation standards may change over time. The willingness of states to accept and comply with implementation standards could, for instance, decline if the expert bodies’ standards become too fine-tuned and therefore unachievable or overstated for the state concerned. Furthermore, it has to be taken into account that compliance with some implementation standards could increase only over a longer period of time. States frequently refer to the scarcity of resources in this regard, which would impose challenging obstacles to achieving compliance with human rights implementation standards in the field of economic and social rights within the required time frame. For these reasons, the dialogue between the expert body and the state must always be examined over time and considered in the light of the respective monitoring cycle. Case studies should therefore be structured according to the different monitoring cycles that have already been described above in Chapter III. In this way it will be possible to answer questions such as: Does the states’ acceptance of and compliance with implementation standards improve over time, or does it deteriorate? Can an increasing feeling of partnership, or a certain fatigue in the co-operation be observed?

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3.1.4. Questions proposed for the assessment As has been stated above, the acceptance of and compliance with the expert bodies’ implementation standards can be grouped into four impact levels, ranging from impact level 0, describing non-acceptance of and non-compliance with implementation standards, to impact level 3, describing full acceptance and full implementation. Certainly, the statements in the sources available will often be too imprecise to allow for an accurate classification under one of the four impact levels. Designing a concrete case study will therefore require a set of concrete questions that may help to evaluate the sources of the dialogue. A number of illustrative and guiding examples of questions that could be asked for such an analysis are suggested in the following. It is yet to be noted, however, that the practical examples mentioned in the table below are taken from the CPT’s dialogue with member states and serve illustrative purposes only. As such, they are not the result of comprehensive research. The examples presented also aim to demonstrate the importance of strictly concentrating on the acceptance of and compliance with implementation standards in the case studies in order not to let the discussion of facts and findings of expert bodies influence the results of the analysis. For this reason the underlying implementation standards in question are written in bold letters.

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Rationale

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353 354 355 356 357

“Surgical castration of detained sex offenders amounts to degrading treatment.”353 In its report on its visit from 21 to 23 October 2009 the CPT recommends that the Czech Republic immediately stop surgical castration of detained sex offenders. The Czech Government rejects this recommendation as follows: “The Government does not share the Committee’s view that surgical castration of sex offenders who have been deprived of their liberty is tantamount to degrading treatment.”354 “Conditions of detention for irregular migrants should reflect the nature of their deprivation of liberty, with limited restrictions in place and a varied regime of activities.”355 The reports on the 2006, 2007, 2008 and 2009 visits to Greece all paint a similar picture of irregular migrants being held in very poor conditions in police stations and other ill-adapted premises, often disused warehouses, for periods of up to six months, and even longer, with no access to outdoor exercise, no other activities, and inadequate health care provision. Recommendations to improve the situation nevertheless continued to be ignored. Despite significant numbers of irregular migrants entering Greece via its eastern land and sea borders over a period of years, no steps were taken to put in place a co-ordinated and acceptable approach as regards their detention and treatment.356 “However, the persistent lack of action to improve the situation in the light of the Committee’s recommendations, as regards the detention of irregular migrants and the state of the prison system, has left the Committee with no other choice but to resort to the exceptional measure of issuing this public statement.”357

Practical examples

European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 2010c: item 10. Response of the Czech Government 2010. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 2009: item 79. European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 2011: item 3. Ibid: item 1.

Have any implementation standards been openly challenged or refused by the state?

A member state’s open refusal of an implementation standard is a strong indication for impact level 0. The state concerned could either regard the expert body’s recommendation as useless, or not justified for the realisation of a norm standard at national level. Repeated criticism on the side of the Have there been expert body indicates a lack of visible cases in which progress with respect to a specific the expert body human rights situation in the state repeatedly concerned and thus impact level requested 0 or 1. The state’s justification for compliance with such stagnations could give valuable an implementation insights as to the reasons why a state standard, but did not implement or does not intend repeatedly had to implement an implementation to criticise the standard. A public statement by the lack of proper CPT is a strong indication of a lack of implementation? co-operation on the state’s side and Did the CPT even thus, depending on the reasons for resort to issuing a issuing such a statement, an indication public statement? for impact level 0 or 1.

Question for the analysis

To find examples for impact levels 0 and 1, the following questions may be posed: Figure 27: Impact levels 0 and 1353354355356357

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The impact of implementation standards in member states

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“Further, for the right of access to a lawyer to be fully effective in practice, appropriate provision should be made for persons who are not in a position to pay for a lawyer.”358 The CPT recommends, in CPT/Inf(2010)5, the development of a fully fledged legal aid system in the context of police custody, so as to ensure that persons who are not in a position to pay for a lawyer can effectively benefit, if they so wish, from the assistance of a lawyer throughout their police custody (including during any police questioning).359 Austria commented on this recommendation that “there was not a single case where the lawyer sent by the stand-by legal counselling service was denied attendance of the interrogation. The stand-by legal counselling service has been made use of frequently and has thus become established practice. Its further development into a fully-fledged system of legal aid for police interrogations still has to be subjected to a comprehensive examination, in particular with a view to the financial implications.”360

The partial implementation of recommendations indicates a certain receptivity for an expert body’s implementation standard. A state bringing forward justifications for only partial implementation or existing difficulties in implementing an expert body’s recommendation likewise is an indicator of a certain receptivity for the implementation standards and thus impact level 2.

Are there implementation standards proposed in the dialogue for which a state has taken first steps for implementation, but has given justifications for – so far – only partial implementation?

358 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 2002: item 41. 359 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 2010b: item 23. 360 Response of the Government of Austria 2010: item 23.

Practical examples

Rationale

Question for the analysis

Figure 28: Impact levels 2 and 3358359360

To find examples for impact levels 2 and 3, the following questions may be posed:

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Standard-setting through monitoring?

Changed national legislation or practice that may directly or indirectly be traced back to the expert body’s recommendation is an indication for impact level 3.

Are there implementation standards proposed in the dialogue, which have then been fully implemented by the state?

“Patients should have … the possibility to take outdoor exercise on a daily basis.”364 “During the end-of-visit talks, the delegation made an immediate observation under Article 8, paragraph 5, of the Convention and called upon the Austrian authorities to take all necessary measures at the Sigmund Freud Psychiatric Hospital … to ensure that all patients/residents whose health so permitted were offered at least one hour of outdoor exercise per day. By letter of 23 June 2009, the Austrian authorities provided the following information in relation to the Sigmund Freud Psychiatric Hospital: The hospital is already now in a state to fulfil the CPT’s requirement of one hour exercise a day for all patients whose health so permits. In the case of patients from closed units, this requirement is fulfilled either through exercise while accompanied by staff, or through exercise in a secure garden area.”365 “The CPT welcomes the steps taken by the relevant authorities at both establishments visited.”366

“As regards regime activities, they should include outdoor exercise, access to a day room and to radio/television and newspapers/magazines, as well as other appropriate means of recreation (for instance, board games, table tennis).”361 Since the CPT criticised362 that there were no sockets and therefore no television or radio in the cells of the police detention centre in Klagenfurt, Austria announced that “efforts will be made to take the necessary measures to remedy these shortcomings in the course of the investment programme 2010/2011”.363

Practical examples

361 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 2010a: item 29. 362 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 2010b: item 44. 363 Response of the Government of Austria 2010: item 44. 364 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 1998: item 37. 365 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 2010b: item 126. 366 Ibid.

361362363364365366

Concrete steps or plans to change national legislation or practice described in the dialogue are indications for impact level 2.

Rationale

Are there implementation standards proposed in the dialogue for which the state has announced it will take concrete action in the future?

Question for the analysis

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The impact of implementation standards in member states

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3.2. Case study typology Given the vast amount of reports, responses, comments, resolutions and further sources adopted in the course of the expert bodies’ dialogues with states it is almost impossible to map out the impact of all Council of Europe expert bodies’ implementation standards in all Council of Europe member states. Therefore, a specific focus is required in any case study to be undertaken.367 In the following, a typology of case studies that could be designed and conducted to assess the ongoing dialogue between the expert bodies and the Council of Europe member states is presented. Three types of case studies appear to be meaningful and of particular relevance.

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(1) Country profile. The focus of this type of case study is on one single Council of Europe member state. The key question to be answered is to what extent does a specific state accept and implement the implementation standards by Council of Europe monitoring bodies? For this purpose the dialogues of one, two, three or even all four Council of Europe expert bodies may be analysed in relation to one, some or all implementation standards for each body. Creating a country profile will allow for conclusions on a member state’s overall attitude towards one or more Council of Europe expert bodies’ implementation standards. Also, potentially different reactions of one Council of Europe member state vis-à-vis different expert bodies may unfold. (2) Regional profile. The main interest of a case study drawing up a regional profile lies in the question of whether the Council of Europe expert bodies’ implementation standards have a significant impact in a specific group of states. A regional profile could be drawn up for member states of the EU, states in the process of accession to the EU, Nordic or Mediterranean states, countries that are new or recent members of the Council of Europe, transition countries which acceded the Council of Europe after the fall of the Berlin Wall in 1989 or a group of long-term Council of Europe members. The impact of one, some or all expert bodies could be analysed in these groups of countries with regard to one or more implementation standards for each expert body. Also, comparisons between two or more groups of states could reveal different impacts of implementation standards in different groups of states. (3) Thematic profile. The focus of this type of case study lies on one single implementation standard or on a group of thematically interrelated implementation standards of a Council of Europe expert body. To determine the impact of a specific implementation standard, a thematic focus has to be chosen. A thematic profile in relation to ACFC could focus on articles 12 to 15 FCNM as they cover the topics already dealt with by thematic commentaries. A study on the CPT could, for instance, focus on implementation 367 See, for example, the focus on media in Kumar and Starl 2011.

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standards developed in relation to police custody. A thematic profile in relation to ECRI could focus on the impact of GPR No. 2 (on specialised bodies to combat racism, xenophobia, anti-Semitism and intolerance at national level), GPR No. 10 (on combating racism and racial discrimination in and through school education) or GPR No. 11 (on combating racism and racial discrimination in policing). A thematic study on the ECSR could focus on a specific “hard core” provision which all states accepted. The impact of these implementation standards could be investigated in different groups of states or even all Council of Europe member states. The three types of case studies proposed are summarised in Figure 29.

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Figure 29: Case study typology Case study type

Key question to be addressed

Country profile

To what extent does a state accept and implement the implementation standards by Council of Europe monitoring bodies?

Regional profile

What impact do Council of Europe expert bodies’ implementation standards have in different groups of states?

Thematic profile

What impact does a specific implementation standard have?

ImpleExpert mentation body standards analysed analysed

from 1 to all

from 1 to all

1

Country analysed

from 1 to all

1 country

from 1 to all

several groups of countries (geographical, historical, political distinctions can be made)

Several groups 1 or some of countries, thematically or all Council related of Europe member states

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4. The role of human rights indicators for measuring the human rights performance of Council of Europe member states 4.1. Indicators: a prerequisite for measuring the implementation of human rights

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Any attempts that claim to objectively measure the implementation of human rights are highly intricate and precarious endeavours requiring a systematic approach, including the identification and collection of relevant data. Generally, there are no straightforward answers to the central question underlying such human rights measurements, namely to what extent does a state protect, promote and fulfil human rights norm standards? Based on the experience gained in assessing the development of countries worldwide through “development indicators”, significant efforts have been made during the last decade to measure the implementation of human rights by using so-called “human rights indicators” (HRI). The aim of measuring the human rights situation in a given country by using HRI has indeed generated substantial contributions in academic literature over recent years.368 Extensive efforts for measuring the implementation of human rights through indicators have also been made in practice by various international bodies. Most notably, within the framework of the UN, a programme on the development of HRI has been launched by the UN Office of the High Commissioner for Human Rights (OHCHR) to satisfy a request of UN treaty bodies asking for guidance on the use of statistical data in monitoring states’ compliance with human rights obligations. As a result, a methodological framework for identifying human rights indicators and a list of indicators for some human rights has been developed.369 The relevance and importance of HRI has also been acknowledged at the Council of Europe level. The Council of Europe Commissioner for Human Rights, Thomas Hammarberg, stated that “indicators make human rights planning and implementation processes more efficient and transparent. They make it easier to hold governments accountable for the realisation of human rights and also help highlight success through accurate criteria.”370 Not least for this reason, co-operation between the OHCHR and the Council of Europe has been envisaged in 2009 to ensure mutual support in the development of methodologies to develop and use HRI.371 368 369 370 371

For an overview, see Green 2001; Landman 2004; de Beco 2008. United Nations Office of the High Commissioner for Human Rights 2008. Council of Europe Commissioner for Human Rights 2009. Note on OHCHR Indicators work, background document for the annual meeting of chairpersons of the human rights treaty bodies and the inter-committee meeting, 2010, www2. ohchr.org/english/bodies/icm-mc/documents.htm. However, this co-operation has not led to the adoption of any official documents so far.

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However, so far no commonly accepted definition of HRI has been agreed upon. In literature, the term “indicator” is rarely used explicitly or synonymously with statistics. De Beco, however, understands HRI as “indicators that are linked to human rights treaty standards, and that measure the extent to which duty-bearers are fulfilling their obligations and rightsholders enjoying their rights”.372 A brief definition is also given by Green, determining an HRI as “a piece of information used in measuring the extent to which a legal right is being fulfilled or enjoyed in a given situation”.373 A more extensive description of HRI is provided in the OHCHR’s report on indicators for monitoring compliance with international human rights instruments. Drawing on a formulation by UN Special Rapporteur Paul Hunt, this report defines HRI as “specific information on the state of an event, activity or an outcome that can be related to human rights norms and standards; that address and reflect human rights concerns and principles; and that are used to assess and monitor promotion and protection of human rights”.374 The latter definition does not only form the conceptual basis for the OHCHR’s methodological framework for identifying HRI, but concisely grasps a wide range of possible HRI that could be relevant for assessing the implementation of human rights norm standards in Council of Europe member states. For this reason, this book will also draw on this definition. To date, no comprehensive set of HRI exists for measuring human rights. At the UN level, the work initiated by the OHCHR has so far led to the elaboration of illustrative indicators for a number of human rights, such as the right to life, the right to liberty and security of persons, or the right to adequate food.375 However, the process of developing HRI is still ongoing. We assume that the model to identify contextually meaningful HRI for specific human rights that was guided by academia and adopted by the OHCHR could inform the development of specific HRI relevant for measuring the implementation of the norm and implementation standards monitored by the four expert bodies under examination. Therefore, the OHCHR’s methodological framework for HRI will be presented in more detail by describing the overall process of identifying HRI, outlining criteria for selecting indicators, differentiating between relevant types of indicators, and outlining their use for various initiatives in which HRI could be used to facilitate the progressive realisation of human rights norm standards.

372 373 374 375

De Beco 2008: 24. Cf. Green 2001: 1065. United Nations Office of the High Commissioner for Human Rights 2006. United Nations Office of the High Commissioner for Human Rights 2008: Annex I. At the Council of Europe level a related attempt was made to develop indicators that help assess the impact of the FCNM. See Malloy et al. 2008.

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4.1.1. The process of identifying human rights indicators Identifying relevant and meaningful HRI requires several steps. The methodological framework adopted by the OHCHR first proposes to translate norm standards into a limited number of “characteristic attributes”,376 or “constitutive elements” as they are referred to in this book. This splitting up of a norm standard into smaller components aims to facilitate a more structured identification of appropriate indicators for a specific right. Most importantly, by identifying the constitutive elements, the often quite generally formulated norm standards are broken up into concrete categorisations that are more useful for identifying suitable indicators. At the same time, the links between a norm standard and the indicators are made more explicit, which emphasises that HRI always reflect international law applicable to a state. As an example, the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment, as enshrined in Article 5 of the Universal Declaration of Human Rights, may be split up in four constitutive elements, namely “physical and mental integrity of detained or imprisoned persons”, “conditions of detention”, “use of force by law enforcement officials outside detention”, and “community and domestic violence”.377

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In a second step, a set of indicators has to be selected for each constitutive element of the respective norm standard. When doing so, careful attention has to be paid to the fact that each indicator has to fulfil certain requirements to be effective. Certain criteria, like collectability, validity and accuracy, have to be considered to confirm that an indicator fits in the respective context. This is an essential step, as otherwise the states might not be able to provide pertinent data, or may not be willing to accept an indicator as meaningful for a specific norm standard. In academic writing, the so-called SMART criteria have been developed to determine the most appropriate indicators. According to these criteria, indicators have to be specific, measurable, attainable, relevant and time-framed.378 It appears that it is particularly important that indicators are time-framed because otherwise neither progress in the realisation of human rights, nor retrogression in the implementation of human rights could be discerned.379 Finally, it has to be made sure that indicators are open for disaggregation to gain specific data on groups that risk being disadvantaged or which are especially vulnerable. Depending on the human right at stake, disaggregation of all data should be possible with regard to gender, race, ethnicity, and age.380 Depending on the norm standard and the context of a specific state, a further distinction might also be required allowing disaggregation with regard 376 United Nations Office of the High Commissioner for Human Rights 2008: 5. 377 Ibid: Annex I. 378 De Beco 2008: 33. 379 Green 2001: 1084. 380 Ibid.

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to the rural–urban divide, income, language, nationality, or sexual orientation. Certainly, disaggregated data are indispensable for the effective and comprehensive evaluation of human rights implementation, but since the establishment of statistical data also affects data privacy and confidentiality, it is not always feasible or possible to conduct disaggregation at the desired level. Therefore, disaggregation demands adequate legal standards providing among other things institutional safeguards. 4.1.2. Relevant types of indicators Methodological frameworks for identifying HRI, such as the one developed under the auspices of the OHCHR, usually differentiate between various types of indicators that in total aim to reflect the states’ duty to protect, promote and fulfil human rights. For this purpose, a distinction is usually made between structural, process and outcome indicators. Structural indicators denote the ratification of norm standards and the institutional mechanisms necessary for the operationalisation of the specific human rights applicable in a state. They show which norm standards have been ratified by a state and further reveal if and to what extent the state in question established measures to implement them. However, structural indicators alone cannot measure the compliance of a state with norm standards, simply because they only indicate the de jure compliance with human rights standards.381

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Process indicators aim to evaluate the conduct of a state and thus the value of a state’s human rights policies as envisaged in public programmes or specific interventions. Process indicators permit a more detailed evaluation of a state’s compliance with its obligations and its responsibilities, because they assess the measures a state is willing to take in order to give effect to the accepted human rights standards. Yet, a state’s human rights policy must not necessarily have a positive impact on the enjoyment of human rights by individuals or vulnerable groups in practice. Therefore, outcome indicators are used to identify the results of the states’ efforts in implementing human rights. They reflect the level of the actual enjoyment of a right by individuals and therefore indicate the states’ de facto compliance with a human rights standard.382 As it might take some time for national policies to become effective for individuals, outcome indicators often develop more slowly and are less sensitive to short-term changes of conditions than process indicators are. Obviously, structural, process and outcome indicators are mutually dependent and reflect various steps of the ongoing realisation of human rights at

381 De Beco 2008: 42. 382 Ibid.

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national level. Therefore, all three types of indicators have to be taken into due consideration for measuring the implementation of human rights norm standards monitored by the Council of Europe expert bodies. All types of indicators, be they structural, process or outcome indicators, depend on the careful collation of relevant and reliable data. Certainly, the difficulty in gathering data for structural, process and outcome indicators varies. Usually, it is an easier task to identify relevant data on structural indicators than collating data on process and outcome indicators for a specific HRI. It has become a common practice that methodological frameworks for identifying HRI distinguish between two types of data, namely qualitative and quantitative data, and resort to both in order to get a comprehensive and valid picture of the national human rights situations. Quantitative indicators are expressed in numerical form and are often used synonymously with statistics. In practice, quantitative indicators also resort to any other quantifiable material, whether figures, percentages, or indices are concerned. Qualitative indicators are expressed in narrative form and thus constitute a more thematic approach, detailing relevant information for the observation and the enjoyment of a specific right. Quantitative and qualitative indicators are equally important and complement rather than conflict with each other.

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In the table below, an overview is given of structural, process and outcome indicators for four constitutive elements of the right enshrined in Article 5 of the Universal Declaration of Human Rights, namely the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

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Community and domestic violence

Use of force by law enforcement officials outside detention

Conditions of detention

Physical and mental integrity of detained or imprisoned persons

Constitutive elements

International human rights treaties, relevant to the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment, ratified by the state

Example for structural indicator

Proportion of health care and community welfare professionals trained in handling domestic violence issues

Incidence of death and physical injury resulting from arrests or other acts of apprehending persons by law enforcement officials in the reporting period Proportion of children or pupils per 1 000 enrolled and patients who experienced corporal punishment in teaching and medical institutions

Proportion of detained or imprisoned persons held incommunicado or in prolonged solitary confinement

Proportion of detained or imprisoned persons in facilities inspected by an independent body in the reporting period Proportion of detained and imprisoned persons in accommodation meeting legally stipulated requirements (for instance, drinking water, cubic content of air, minimum floor space, heating) Proportion of formal investigations of law enforcement officials resulting in disciplinary action or prosecution

Example for outcome indicator

Example for process indicator

383 United Nations Office of the High Commissioner for Human Rights 2008: 26.

The right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment

Article 5 Universal Declaration of Human Rights:

Norm standard

Figure 30: List of illustrative indicators on the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment383

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The impact of implementation standards in member states

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4.1.3. Using human rights indicators for defining benchmarks, conducting human rights impact assessments and creating indices Once established, HRI may inform various processes that all aim to facilitate the progressive realisation of human rights norm standards in a given state. As will be detailed below, HRI may inform the definition of national benchmarks, could inform national human rights impact assessments and may give rise to the creation of human rights indices. HRI may be a helpful tool for states in defining concrete steps to be taken over a certain period of time to implement human rights norm standards. Agreeing on the aspired performance, and thus setting national benchmarks, requires the defining of concrete goals or targets specific to the individual circumstances of a country. Established sets of structural, process and outcome indicators regarding specific human rights norm standards or implementation standards could inform the defining of such benchmarks. Commonly agreed HRI would also facilitate the national and international monitoring of a state’s progress in achieving human rights benchmarks. Another field in which HRI may be used are human rights impact assessments by states. Such impact assessments aim to measure the human rights impacts of state policies. They can be done ex ante to measure the potential impact of measures envisaged by a state, or they can be done ex post to assess the actual impact of implemented human rights policies. Although human rights impact assessments have not yet become a common practice for states, they are an important and appropriate means for states to integrate human rights into policy making. Most importantly, they contribute to a more profound self-evaluation of the national human rights situation.

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Sets of HRI may also be used in combination with each other to generate human rights indices that rank the states’ performances on rating scales. Such indices weight various HRI and are only a nascent trend in the human rights context.

4.2. Implementation standards informing the development of indicators and benchmarks In practice, the four Council of Europe expert bodies under examination obtain qualitative and quantitative data from different sources and different monitoring mechanisms ranging from state reports to on-site inspections. Given the definition of HRI above, it may well be concluded that the ACFC, the CPT, ECRI and the ECSR to some extent apply structural, process and outcome indicators to determine the legal and factual human rights situation in member states during their compliance assessment. 170

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Most prominently, the ECSR submits a form to the states for drawing up the national reports in pursuance of the 1961 ESC, the 1988 additional protocol, and for reports to be submitted in pursuance of the revised ESC.384 In these forms the ECSR asks the state concerned to provide information on each article of the Charter and specifically asks for information on (1) the legal framework, laws or regulations, pertinent national case law and relevant court decisions; (2) measures such as administrative arrangements, programmes, action plans, or projects taken to implement the legal framework; and (3) pertinent figures, statistics and other relevant information that enables the ECSR to evaluate the extent to which these provisions are applied. Occasionally, the ECSR also asks for disaggregated data, for instance, with regard to gender. The strict procedure of the reporting system requires the ECSR to stick to the information provided by the states on the basis of the questionnaire sent out by the monitoring body before each monitoring cycle. Additional information gained through other channels can only be used by the ECSR to revise the questionnaire for the next cycle of state reports. Similarly, the ACFC provides outlines for the state reports for each monitoring cycle.385 In the first outline, the ACFC asked states to provide pertinent narrative information on the general situation of minorities and developments that have taken place over the last years. Further, the ACFC also asks states, among others, for specific information on (1) the legal framework, including all relevant constitutional provisions, laws, regulations, decrees, judicial decisions and provisions of bilateral treaties; (2) relevant policies, measures, programmes, statements and documents from government agencies; and (3) pertinent statistics and results of surveys that allow for an evaluation of the effectiveness in practice of the measures taken to implement the FCNM. The outline for the second reporting cycle mainly asks for information on measures taken by the state party to improve the implementation of the FCNM. This is in response to the resolution adopted by the Committee of Ministers in relation to the individual states after the first monitoring cycle. The outline also focuses on information requested by the ACFC on a number of specific points on which the expert body wished to obtain fuller information from states in the ongoing dialogue. In the third outline, the ACFC again asks for a description of legislative and other measures, as well as policies designed to address problems and needs identified in earlier reports. Moreover, the ACFC requests information on the impacts of these measures taken and underlines the necessity to include reliable and updated statistical data on national minorities.

384 These questionnaires are adopted by the Committee of Ministers. Both forms are available on the ECSR’s website: www.coe.int/t/dghl/monitoring/socialcharter/ReportForms/ FormIndex_en.asp. 385 The outlines are available on the ECSR’s website: www.coe.int/t/dghl/monitoring/ minorities/2_Monitoring/Monitoring_Intro_en.asp.

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Thus, the two expert bodies that base their reports on information provided by states, namely the ACFC and the ECSR, implicitly ask for data on structural, process and outcome indicators. However, it has to be questioned whether the two other expert bodies, namely the CPT and ECRI, also use indicators in such a conscious manner. The CPT requests information from states in its state reports if this is deemed necessary.386 When doing so, the expert body asks for manifold, highly specific information that may well be regarded as data on structural, process and outcome indicators. The CPT, for instance, requests information on a process indicator, when asking for detailed information on new detention centres for foreigners or timetables for the full implementation of the construction plan. Similarly, the CPT requests data on an outcome indicator, when asking for information on the average number of hours per day spent by juveniles for out-of-cell activities. ECRI, likewise, collects data on structural indicators when assessing which international legal instruments were ratified by a state party or whether a specialised body to combat racism and discrimination has been established. When assessing the level of discrimination in various fields, such as education, employment, housing, administration of justice, etc., ECRI clearly aims to gather data on outcome indicators to assess and evaluate the situation and experiences of the various vulnerable groups, broken down by ethnic origin.

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Although these examples show that Council of Europe expert bodies do make use of indicators in their assessment procedures, there is still room for improvement, as has been addressed by the Council of Europe Commissioner for Human Rights, Thomas Hammarberg, in one of his viewpoints. More specifically, he identified the definition of meaningful indicators as a prime means to close the gap that still exists between the rights proclaimed in human rights treaties and the reality in Council of Europe member states.387 Indeed, a scrupulous development and careful use of HRI could facilitate the monitoring processes established under the Council of Europe. The expert bodies under examination could also provide valuable inputs into the process of identifying appropriate and useful indicators. With their implementation standards the expert bodies break down the often quite generally formulated norm standards into their constitutive elements. By doing so, the Council of Europe expert bodies could help identify characteristic attributes of norm standards, for which more detailed indicators then would have to be developed. The expert bodies’ implementation standards may be of particular importance for the development of qualitative HRI because they constitute a treasure trove of experience that only an expert body’s perspective building on years of experience in monitoring can provide.

386 A request for information is a usual feature in the CPT’s reports besides recommendations and comments. 387 Council of Europe Commissioner for Human Rights 2009.

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Just like at the UN level, the identification of meaningful HRI at the Council of Europe level has preferably to be done in a participatory approach. Involving all relevant stakeholders, ranging from state representatives and expert bodies to NGOs, in the development of indicators clearly has the advantage of increasing the indicators’ likelihood of being truly indicative of the level of compliance with human rights. Furthermore, it increases their acceptance among states. Since data quality is fundamental to the development of indicators, co-operation with experts responsible for the drawing up of statistics could also be useful for the development of indicators as well.

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Obviously, it is of utmost importance that indicators are relevant in the context where they are to be applied. Since the Council of Europe member states’ capacities for and levels of human rights realisation do vary to a certain and sometimes considerable extent, it is important to develop indicators that are specific to states. Since NHRIs monitor and protect human rights in a given country, and therefore possess an incommensurable know-how of the state’s human rights situation and its particularities, their expertise should be taken into account when developing indicators that may vary from one state to another. Nevertheless, it is reasonable to encourage the development of generally applicable indicators as well, in order to measure the level of participation, accountability, empowerment, non-discrimination and other key principles in the human rights field in Council of Europe member states. The usage of HRI in the dialogue between Council of Europe expert bodies and Council of Europe member states could also inform and facilitate the establishment of national benchmarks. Building on accepted HRI, specific benchmarks could be agreed upon in the dialogue between the expert body and the state party. Concentrating mainly on these defined goals would help states and expert bodies focus on the most important matters in their dialogue. Consequently, the use of benchmarks could counteract any monitoring fatigue which may evolve. Therefore, it is important that states are not overburdened with too many benchmarks to fulfil and that the benchmarks set can be realistically achieved. Agreeing on benchmarks in the dialogue also has to be an ongoing process allowing for amendments and adjustments during the dialogue. The follow-up reporting procedure established by ECRI reveals that benchmarking is a means already applied for the progressive realisation of human rights. At the end of each country visit, ECRI chooses, together with the state, three important topics of which the progress is checked in between the regular monitoring cycles. Therefore, the state has to submit a progress report, on which ECRI plans to adopt conclusions to be adopted in the subsequent annual report. Given that ECRI agrees with the state on a measurable objective to be achieved in a given period of time, in order to come closer to the fulfilment of ECRI’s implementation standards, this procedure can well be perceived as an example close to benchmarking. 173

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In summary, the consultative process of developing HRI and using national benchmarks can be described as a four-step approach.388 Figure 31: Steps for developing HRI and using national benchmarks Step

Activity

1

States and expert bodies agree on key indicators for a specific right. For this purpose the constitutive elements of the respective human rights norm standard have to be broken down and categorised in structural, process and outcome indicators. The Council of Europe expert bodies could play an important role in this identification process of characteristic attributes of norm standards.

2

Using these agreed indicators, states set their national benchmarks.

3

Using these agreed indicators, the expert bodies set benchmarks for the state. These benchmarks might of course be identical to those set by the states.

4

Expert bodies monitor the observation of the benchmarks. Steps 2 to 4 are repeated.

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5. Conclusions Depending on whether the implementation standards take the form of minimum standards, developmental standards or best practices, they may be assumed respectively to be non-law, soft law or even soft law with the potential to become hard law. However, and most importantly, it was found that the independent expert bodies established in the Council of Europe in no way set human rights standards that could be imposed upon the member states without state consent. Even if expert bodies interpret the respective treaties in an extensive way, they are unable to add legal obligations for member states that the latter do not intend to accept. At the very least, this means no less than that the states will always be able to decide which implementation standards shall be regarded by them as binding and non-binding. For this reason, states do not have to shy away from regarding the expert bodies’ recommendations as supportive advice. On the contrary, states may trust the expert bodies that their recommendations and implementation standards are not intended to create new obligations for them, but rather that these forms of expert advice shall assist them in implementing existing norm standards. 388 This overview was adapted from Hunt 1998.

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Therefore, the implementation standards cannot be regarded as an alternative to treaty-making in a strict sense. Rather, the activities of the Council of Europe expert bodies are an increasingly important part of the complex process of developing a treaty regime. Determining the impact of the expert bodies and their implementation standards on the human rights performance of member states remains a demanding endeavour. Tracing the dialogue between the Council of Europe expert bodies and the state authorities, as proposed in the methodology elaborated above, may be regarded as a first attempt to measure this impact. Certainly, a number of case studies are required to allow for revealing and comparable conclusions. The methodological framework proposed in this chapter along with the typology of possible case studies may help to design fruitful case studies, and in fact intends to stimulate researchers to conduct such studies.

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The current trend of developing HRI has also been confirmed for the Council of Europe level. Using agreed indicators as explained above would help focus on specific topics in the dialogue between Council of Europe expert bodies and member states. Potentially, this would make the entire monitoring process more effective and target-oriented. The dialogical component in the process of developing indicators might have further effects. By reconsidering the indicators in the dialogue with the state, an expert body could find out that the implementation standards proposed in a previous monitoring cycle were too unrealistic to be achieved, not sufficiently target-oriented or even not effective enough. An expert body may thus decide to revise an established implementation standard. It might be tempting for an expert body to draw comparison-enabling human rights indices after completing a monitoring cycle. However, such comparisons of member states have various methodological downsides and are generally perceived negatively by states. Thus, the Council of Europe monitoring bodies using indices might run the risk of losing credibility. Beyond that, a constructive dialogue is more important for the work of the Council of Europe monitoring bodies than “naming and shaming” individual states parties. HRI should therefore only be used to support and facilitate the dialogue between states and expert bodies, but not as a basis for a ranking of states in relation to their human rights performance by developing human rights indices.

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Conclusions

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Monitoring human rights today represents an important share of the work of the Council of Europe. The review of four Council of Europe expert bodies monitoring human rights undertaken in this book certainly confirmed this appraisal. What some 50 years ago started with the monitoring of the provisions of the ESC, developed into an impressive apparatus providing for the supervision of, inter alia, civil and political rights, minority rights, the treatment of persons deprived of their liberty, the fight against racism, as well as the fight against corruption and money laundering. More recently, hybrid systems have been set up, in which traditional expert advice is complemented by the inclusion of state representatives in the monitoring procedure. But not only has the range of rights monitored, and the approaches taken for monitoring, broadened over the last 50 years, so too has the gained experience of the monitoring bodies increased significantly during this period. The efforts taken by the former Directorate of Monitoring to create synergy and co-operation among these bodies has helped them to improve the strengths and counter the weaknesses in their monitoring procedures. Yet, the trend of setting up specialised monitoring mechanisms might not have come to an end in the Council of Europe. While concerns about a proliferation of monitoring bodies cannot be dismissed, the potential of learning from the more established mechanisms cannot be underestimated. Comparing the ACFC, the CPT, ECRI and the ECSR might at first sight appear to amount to comparing apples and oranges. The research confirmed that it is often difficult to conclude whether typical features of one expert body, such as the high level of confidentiality of the CPT or ECRI’s strong relations with civil society, can be regarded as a strength or rather as a weakness of human rights monitoring mechanisms in general. One could quickly come to trivial conclusions which are not suitable for generalisation. It thus has to be accepted that each monitoring mechanism is highly complex and unique in its nature and that when assessing the overall strengths and weaknesses of a monitoring body, all features of a particular supervisory system have to be taken into account as a whole.389 The comparative approach taken in this book, however, proved to be highly useful, as some trends that are common to all four expert bodies unveiled. The expert bodies examined have found themselves confronted with the 389 For more details on the strengths and weaknesses identified, see Kicker, Möstl and Lantschner 2011.

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necessity to react to similar or at least comparable challenges over the recent years. These include questions such as how to gather appropriate and up-to-date information, how to keep track of new developments in the member states, how to properly involve other relevant stakeholders, how to ensure follow-up activities and, not least, how to convince states to implement their recommendations in order to prevent human rights violations. What could be observed in the comparative analysis is that the expert bodies resort to different strategies to cope with these challenges of effectively monitoring human rights throughout Europe. By revising their rules of procedures, changing their policy regarding publicity, or even by introducing new monitoring activities, the expert bodies made use of their particular flexibility to develop and adapt their monitoring procedures through various internal reforms. Nevertheless, it appears that certain European states, even founding or longstanding members of the Council of Europe, increasingly show a sort of “monitoring fatigue” vis-à-vis the four expert bodies under examination. Indicators of this fatigue are the decline in formal and substantive co-operation with the monitoring bodies resulting in, for instance, delays in the submissions of state reports or non-implementation of recommendations. It seems, however, that the expert bodies have already used much of their room for manoeuvre deriving from their legal bases. Further reforms to address this fatigue thus cannot solely be made by the expert bodies alone. For this reason the mutual reinforcement of the expert bodies, and creating of synergies between them, has become an increasingly important issue for the Council of Europe. Meetings have already been held among the Chair of the Ministers’ Deputies and the presidents of the expert bodies together with the Commissioner for Human Rights, with a view to identifying incentives to stimulate potential synergies, but also to avoid potential overlap between the monitoring mechanisms. Subsequently, the Committee of Ministers invited the expert bodies to propose measures dealing with “… how the co-ordination of monitoring bodies’ activities can be reinforced …”.390 These are steps in the right direction, as learning from each other and increased co-operation among the expert bodies seems to be the order of the day. It remains to be seen whether the dissolution of the former Directorate of Monitoring, and placing of the monitoring mechanisms under different directorates in the Secretariat’s structure, serves this purpose well. The four Council of Europe expert bodies examined in this book may be considered as “gardeners in the field of human rights” as illustrated in the gardener metaphor promulgated in Chapter IV. However, taking this metaphor a bit further, one may assume that in the long run the gardeners are in need of assistants to let the flowers (that is the implementation standards) bloom constantly in the member states. It should not be 390 Cf. Committee of Ministers 2010a.

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Conclusions

forgotten that many activities related to monitoring could well be carried out by dedicated “assistants”. National monitoring bodies, for instance, could constantly “water the flowers”, by helping the expert bodies to gather information and thus follow more closely the human rights situation in member states, presenting and disseminating monitoring reports produced by the expert bodies and carrying out further follow-up activities. National Human Rights Institutions established according to the Paris Principles are potential partners of expert bodies in this respect as well. As any assistant will not be able to substitute for the gardener, national bodies will not be able to replace the Council of Europe expert bodies, most importantly, because these bodies add an international perspective to the monitoring procedure. The relationship between the expert bodies and national monitoring bodies could thus rather be based on the principle of subsidiarity.

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States, however, are equally called upon to trust the gardeners they employ. The state authorities engaged in the dialogue with Council of Europe expert bodies should not forget the purpose for which they initially set up the monitoring mechanisms. Consequently, they also have to acknowledge the authority of these expert bodies, as well as the legitimacy of their implementation standards. Yet, it should be stressed here that the states as owners of the garden reserved their right to choose the gardeners as they still have an important role to play in the appointment procedures of expert bodies. Essentially, the states themselves even nominate those persons who will become their gardeners and therefore it is only reasonable for them to designate the most competent persons for this responsible function. Having trust in the gardeners is certainly a prerequisite for establishing a spirit of co-operation instead of confrontation, especially in cases where the gardener places a new seed in the soil. The implementation standards developed by the four expert bodies constitute a major achievement of their monitoring activities. They summarise the expert bodies’ interpretations of human rights norms and their recommendations on how to prevent violation of these legal obligations. Over time, the Council of Europe monitoring bodies amend and further develop their implementation standards as a response to new human rights challenges or drawbacks concerning the protection of human rights in member states. Since these standards are not carved in stone, they are more easily amendable, if necessary, than the legally binding norm standards through a revision or an update by the expert bodies themselves. Thus, the flexibility to amend and to further develop implementation standards is a strength of the four Council of Europe expert bodies, when compared to slow processes of adopting norm standards through new treaties. Measuring the impact of the expert bodies and their implementation standards in member states remains an intricate endeavour. Yet, such enquiries 179

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are certainly important ones, not least because any international organ is rightfully measured by the results it yields in practice. Widely ineffective expert bodies risk losing their authority, which will likely further diminish their overall standing and reputation. Assessing the impact of human rights expert bodies at the national level is thus also related to the question of whether the expert bodies’ work may be regarded as a success story, or not. For this reason it is rightly an important concern of the expert bodies and the states alike to have sound methods at hand to trace the effects expert bodies generate in member states. Yet, any such endeavour faces epistemological challenges. The parameters that have to be taken into account in such studies appear to be countless. An analysis of the dialogue between the expert bodies and the state authorities may well provide for a deeper understanding of the challenges of implementing human rights obligations. However, when trying to examine the real impact of expert bodies and their standards on the human rights situation of Council of Europe member states, case studies building on HRI appear to be the more promising approach. Yet, so far there is still no common agreement on the definition of appropriate HRI for the broad range of human rights monitored by Council of Europe expert bodies which would allow for comparative and in-depth studies. The related steps taken in the framework of the UN may well be transferred to the Council of Europe. It may even be assumed that developing HRI in a comparatively more homogenous regional order, such as the Council of Europe, may be more feasible than at the level of the UN. However, many conceptual efforts and methodological choices still lie ahead of human rights researchers. One point that seems to be granted, however, is that the expert bodies’ knowledge and experience gained through monitoring positions them in a prominent role to contribute a considerable share of the development of meaningful HRI. As the title of the book implies, the overall question underlying this publication was whether the Council of Europe expert bodies contribute to the development of the European human rights order. After the close examination undertaken, a clear affirmative answer can be given to that question. The expert bodies studied in this book may definitely contribute to the development of the European human rights order by setting implementation standards in the course of their monitoring activities. However, we introduced a typology of implementation standards to make clear that not all the substantive outputs created by the committees have the same potential to impact on the legal human rights regime. The various implementation standards have functions and legal implications simply too diverse to be lumped together. Only minimum standards, as we call them in this publication, have the potential to contribute to the development of the European human rights order. Yet it cannot be made clear enough at this point that the very impact of all expert bodies’ implementation standards, especially in legal terms, depends on the reac180

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Conclusions

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tions of states parties to this advice provided by experts. By no means may the implementation standards create new legal obligations for states on their own. The states remain the masters of the treaties they ratified and the statute they agreed upon. It remains up to the state authorities to give their consensus to any broadening of human rights obligations in the form of more far reaching implementation standards. This is one of the most important findings and also the essential message to states: the expert bodies are not a threat to the states’ sovereignty, as they, from a legal perspective, are unable to impose further obligations on them. We hope that these clarifications may strengthen the states’ trust in the expert bodies allowing the committees of the Council of Europe analysed in this book to assume their role by setting standards through monitoring in future even more effectively.

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About the authors Markus Möstl is a researcher at the European Training and Research Centre for Human Rights and Democracy in Graz, Austria.

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Renate Kicker is Associate Professor at the Institute of International Law and International Relations, University of Graz, Austria and former member and first Vice-President of the European Committee for the Prevention of Torture (CPT).

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Council of Europe Publishing/Editions du Conseil de l’Europe Council of Europe Publishing/Editions du Conseil de l’Europe FR-67075 STRASBOURG FR-67075 STRASBOURG CedexCedex Tel.: (0)3 +33 88 (0)3 81 – +33 Fax: (0)3 +33 88 (0)3 10 – E-mail: [email protected] – Website: http://book.coe.int Tel.: +33 4188 2541 8125 – Fax: 4188 3941 1039 – E-mail: [email protected] – Website: http://book.coe.int

Standard-setting Through Monitoring? : The Role of Council of Europe Expert Bodies in the Development of Human rights, Council of

A variety of mechanisms has been established in the Council of Europe to monitor compliance with human rights standards. This publication discusses four specific monitoring bodies, namely the Advisory Committee on the Framework Convention for the Protection of National Minorities, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the European Commission against Racism and Intolerance, and the European Committee of Social Rights. By assessing and comparing the monitoring procedures and standard-setting activities of these expert bodies, the authors make an essential contribution to the discourse on the Council of Europe’s role – both current and future – with regard to human rights. This book constitutes a rich source of information on the dialogue between the four committees and European states. It is addressed to practitioners, diplomats and decision makers at national level to deepen their understanding of the aims and functioning of Council of Europe monitoring mechanisms. Students and academics will gain a comprehensive insight into the legal bases, mandates and procedures of such mechanisms. Finally, it is hoped that the expert bodies themselves will gain much from the authors’ analysis of present-day challenges for monitoring and the impact their implementation standards may have on the development of the European human rights order. Renate Kicker is Associate Professor at the Institute of International Law and International Relations, University of Graz, Austria, and former member and 1st VicePresident of the European Committee for the Prevention of Torture. Markus Möstl is a researcher at the European Training and Research Centre for Human Rights and Democracy in Graz, Austria.

The Council of Europe has 47 member states, covering virtually the entire continent of Europe. It seeks to develop common democratic and legal principles based on the European Convention on Human Rights and other reference texts on the protection of individuals. Ever since it was founded in 1949, in the aftermath of the Second World War, the Council of Europe has symbolised reconciliation.

ISBN 978-92-871-7518-2

e23/US$46

http://book.coe.int Council of Europe Publishing

Standard-setting Through Monitoring? : The Role of Council of Europe Expert Bodies in the Development of Human rights, Council of

PREMS 148012 GBR

Copyright © 2011. Council of Europe. All rights reserved.

www.coe.int