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Resolution 1676 (2009)
State of human rights in Europe and the progress of the Assembly’s monitoring procedure
1. The Parliamentary
Assembly acknowledges the work carried out by its Committee on the
Honouring of Obligations and Commitments by Member States of the
Council of Europe (Monitoring Committee) in following the 11 countries
currently under monitoring (Albania, Armenia, Azerbaijan, Bosnia
and Herzegovina, Georgia, Moldova, Monaco, Montenegro, the Russian
Federation, Serbia and Ukraine) and three countries engaged in a
post-monitoring dialogue (Bulgaria, Turkey and “the former Yugoslav
Republic of Macedonia”) through the process of enhancing the protection
of human rights and respect for the principles of the rule of law.
It particularly appreciates the fact that, throughout the reporting
period (June 2008-June 2009), the Monitoring Committee has produced
public assessments for all countries under monitoring, with the
exception of Montenegro, and for all countries involved in post-monitoring
dialogue.
2. The Assembly welcomes the initiative of the Monitoring Committee
to contribute to the debate on the state of human rights in Europe
by focusing this year’s progress report on the human rights situation
in the above-mentioned member states, on the basis of its most recent
monitoring reports. Some of the latter were prepared under accelerated
procedures in order to enable the Assembly to react quickly and
efficiently to urgent and critical situations that raised serious
human rights concerns, such as the outbreak of war in August 2008
between two member states of the Organisation, Georgia and Russia,
both of which are under the Assembly’s monitoring procedure; the
reconsideration of previously ratified credentials of the Russian delegation
on substantial grounds; the consequences of the post-electoral crisis
in Armenia throughout the reporting period; the crisis that erupted
in Turkey when the ruling AKP Party was threatened with dissolution
in spring 2008 and the post-electoral crisis in Moldova in April
2009.
3. As regards the serious human rights violations committed by
both sides during and in the aftermath of the war, the Assembly
recalls its Resolution
1633 (2008) on the consequences of the war between Georgia and Russia
and its Resolution 1647
(2009) on the implementation of Resolution 1633 in which it urged both states to investigate allegations
of human rights violations and bring the perpetrators to account
before the domestic courts, implement the interim measures ordered
by the European Court of Human Rights and the International Court
of Justice and any forthcoming judgments of these courts, and co-operate
fully and unconditionally with any possible investigation by the
International Criminal Court.
4. On the basis of the Monitoring Committee’s country-specific
reports, the Assembly notes with satisfaction that most states under
monitoring or post-monitoring procedures have honoured their formal commitments
relating to the ratification of several Council of Europe human
rights conventions and the revised European Social Charter (ETS
No. 163):
4.1. the most notorious
exception remains the non-ratification by Russia of Protocol No.
6 to the European Convention on Human Rights (hereinafter “the Convention”,
ETS No. 5) on the abolition of the death penalty (ETS No. 114) and
of Protocol No. 14 amending the control system of the Convention (CETS
No. 194). Russia being the only member state which has not yet ratified
these two important protocols, this issue is a key stumbling block
in its co-operation with the Council of Europe. The Assembly reiterates
that the recent adoption of Protocol No. 14 bis (CETS
No. 204) is only an interim solution and should not be seen as an
alternative to the ratification by Russia of Protocol No. 14;
4.2. Monaco has yet to ratify Protocols No. 1 (ETS No. 9) and
No. 12 (ETS No. 177) to the Convention, in line with its accession
commitments. Protocol No. 12 has been signed but not yet ratified
by Azerbaijan, Moldova, Russia and Turkey. Bulgaria has neither
signed nor ratified Protocol No. 12;
4.3. ratification of the revised European Social Charter (ETS
No. 163) has yet to be completed, in line with accession commitments,
by Monaco and Montenegro. The Assembly welcomes the recent adoption of
the law on the ratification of the Charter by both chambers of the
Russian Parliament, as well as by the National Assembly of Serbia.
5. The Assembly welcomes the fact that most member states under
monitoring or post-monitoring have ratified the Council of Europe
Convention on Action against Trafficking in Human Beings (CETS No.
197), which entered into force on 1 February 2008 and led to the
setting up of a new specific monitoring mechanism, the Group of
Experts on Trafficking in Human Beings (GRETA). The convention has
been signed but not yet ratified by “the former Yugoslav Republic
of Macedonia”, Turkey and Ukraine, and has yet to be signed by Azerbaijan,
Monaco and Russia.
6. The Assembly notes that protection of human rights can only
be achieved if the victims of human rights violations have access
to an effective remedy and can find justice before an independent
and impartial court. In this respect:
6.1. while judicial reform is progressing in almost all countries
under monitoring or post-monitoring, shortcomings still persist
as regards the independence of the judiciary, notably in Armenia,
Bulgaria, Russia, Serbia, Turkey and Ukraine. Poor material conditions
and a serious backlog affect the functioning of the judiciary in
Bosnia and Herzegovina;
6.2. the reform of the prosecutor general’s office is an outstanding
commitment in many countries under monitoring, such as Albania,
Russia and Ukraine. As regards in particular the issue of extra-penal functions
exercised by prosecutors in some countries, the Assembly underlines
the importance of ensuring that these functions respect the principle
of separation of powers and the role of courts in the protection
of human rights, and that they are carried out on behalf of society
and the public interest, to ensure the application of the law while
respecting fundamental rights and freedoms. These principles should
guide further the reform of the prosecutor general’s office, with
a view to replacing its legal oversight powers with effective legal
remedies granting human rights victims direct access to a court.
7. A number of systemic problems in the functioning of the judiciary
are often at the origin of violations of the right to a fair trial
within a reasonable period of time. The non-execution of final domestic
judicial decisions or unreasonable delays in proceedings represent
such systemic problems in many countries under monitoring or post-monitoring
procedures, such as Albania, Bosnia and Herzegovina, Russia, “the
former Yugoslav Republic of Macedonia” and Ukraine. Although the
Russian authorities have taken measures in the right direction over
the last two years, the functioning of the Russian judiciary is
currently affected by two additional structural problems, namely
the quality of domestic judicial remedies compelling the higher
courts to overrule final judgments through supervisory review (nadzor) proceedings, and the length
of pre-trial detention.
8. Overcrowding and poor conditions in prisons and pre-trial
detention centres continue to be issues of concern in all countries
under monitoring or post-monitoring procedures, as well as in most
European countries. The last report by the European Committee for
the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT) on the situation in prisons in “the former Yugoslav
Republic of Macedonia” is extremely alarming. In Ukraine, the human
rights situation in prisons has significantly deteriorated over
the last four years and implementation of reforms in the prison
system has not yet been completed in line with its accession commitment,
despite repeated calls by the Assembly and its Monitoring Committee.
The Assembly reiterates its view that it is regrettable that Russia
has yet to authorise the publication of reports of the CPT’s visits.
9. The Assembly remains concerned about the continued detention
of opposition supporters in relation to the post-electoral events
of 1 and 2 March 2008 in Armenia which, notwithstanding positive
legislative changes, undermines the possibility for a meaningful
dialogue between the authorities and the opposition and the normalisation
of political life. It therefore urges once more the Armenian authorities
to consider all legal means available to them, including amnesty,
pardons and dismissal of charges, to release these persons without delay.
10. The Assembly is also concerned that a number of peaceful protestors
have been charged with criminal offences in Moldova and urges the
authorities to make a distinction between those suspected of having committed
criminal acts and those who have peacefully exercised their rights
to freedom of expression and assembly.
11. Despite repeated calls by the Assembly for the release of
all alleged political prisoners in Azerbaijan, a number of them
remain in prison, including two prominent opposition journalists.
The Assembly can but reiterate its call for their immediate release.
12. Excessive use of force and ill-treatment by the police continue
to be issues of concern in most countries under consideration (Albania,
Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Georgia,
Moldova, Russia, “the former Yugoslav Republic of Macedonia”, Turkey
and Ukraine). The failure to investigate and prosecute allegations
of police ill-treatment continues to foster a climate of impunity:
12.1. an independent, transparent
and credible inquiry into the events that occurred on 1 and 2 March 2008
in Armenia, including the excessive use of force by the police and
the precise circumstances leading to the fatalities, and an independent
and thorough investigation into all human rights violations committed
by the police in Moldova following the elections of 5 April 2009,
were specifically demanded by the Assembly when reacting to post-electoral
crises in the two countries;
12.2. cases of unjustified use of force by members of the Russian
security forces during operations in Chechnya, disappearances, unacknowledged
detentions, torture and ill-treatment, unlawful search and destruction
of property, lack of effective investigations and continued shortcomings
in domestic remedies in this respect are pending before the Committee
of Ministers within the framework of the supervision of the execution
of an important number of judgments of the European Court of Human Rights
against Russia. The supervision of the execution of 175 judgments
and decisions of the Court concerning similar violations committed
by the security forces in Turkey has recently been closed following
the adoption of a number of measures by the Turkish authorities;
12.3. the Assembly welcomes the introduction of new mechanisms
of democratic oversight over the activities of the armed and security
forces, as well as the police, in Serbia;
12.4. hazing in the Russian armed forces continues to be an
issue of concern despite measures taken to combat the phenomenon,
in particular the move towards fully professional armed forces.
13. As regards freedom of expression:
13.1. cases of harassment and intimidation of, or even physical
threats against, journalists, as well as the absence of appropriate
investigations and prosecutions in such cases, remain or have recently emerged
as issues of serious concern in Armenia, Azerbaijan, Bosnia and
Herzegovina, Bulgaria, Moldova, Russia, Serbia and Ukraine;
13.2. in Georgia, although the Law on Freedom of Speech and
Expression has been considered as a model for the region, weak editorial
independence, low professional standards and self-censorship persist;
13.3. in Russia, media pluralism has declined in the past two
years. The self-censorship that exists in many forms of media is
an obstacle to freedom of expression. The Assembly welcomes the
preparation of a new draft law, which provides, inter alia, for a clear list of
the rights of journalists and recommends that the competent governmental
authorities in Russia consult the Council of Europe on the new draft media
law;
13.4. in Turkey, the reform of Article 301 of the Criminal Code
has by no means lifted all the restrictions on the freedom of expression.
The Committee of Ministers continues to supervise the execution
of 82 judgments of the European Court of Human Rights in which it
found violations of freedom of expression.
14. As regards freedom of association, the Assembly refers to
its recent Resolution
1660 (2009) on the situation of human rights defenders in Council
of Europe member states, and further notes that:
14.1. freedom of association and harassment
of non-governmental organisations (NGOs) have been main issues of
concern in Russia, especially since the entry into force of new
legislation (hereinafter the “NGO Law”) in 2006, which led to the
closure and the denial of registration of several thousands of NGOs.
The Assembly thus welcomes the recent initiative of the President
of the Russian Federation to set up a working group to draft changes
to the NGO Law;
14.2. legal restrictions on freedom of association have recently
been introduced in Azerbaijan and have led to a deterioration of
the situation for civil society activists who have already been
subjected to harassment; the Assembly is particularly concerned
by additional amendments proposed in June 2009 that, if adopted,
could be used to further restrict the professional activity of civil
society and local media and effectively prevent foreign organisations
from working in Azerbaijan;
14.3. the adoption of the Law on Associations remains an outstanding
commitment for Serbia;
14.4. the execution of the judgment of the European Court of
Human Rights in the case of the United Macedonian
Organisation Ilinden-Pirin and others v. Bulgaria, in
which the Court found that the dissolution of this political party
violated Article 11 of the Convention guaranteeing freedom of association,
is still pending;
14.5. in the wake of its Resolution
1622 (2008) on the functioning of democratic institutions in Turkey: recent
developments, which was adopted in June 2008 when the ruling AKP
Party in Turkey was threatened with dissolution, the European Commission
for Democracy through Law (Venice Commission), seized by the Monitoring
Committee, held that the relevant constitutional and legal provisions
concerning the dissolution of political parties in Turkey together
form a system which as a whole is incompatible with Article 11 of
the Convention. The Assembly therefore urges once again the Turkish
authorities to speed up the process of fully overhauling the 1982
constitution, in co-operation with the Venice Commission. In the
meantime, the Assembly expects any judicial decisions on pending cases
of party dissolution to be fully compliant with Article 11 of the
Convention.
15. Despite positive changes in the law, freedom of assembly is
not fully respected in practice in Armenia and Azerbaijan. Ukraine
has not yet adopted a law governing peaceful assemblies, despite
its accession commitment, and systematic abuses of this freedom
were reported in 2008. In Georgia, the growing number of attacks
by unknown assailants on opposition activists and peaceful demonstrators
participating in the protest rallies that started on 9 April 2009
is a matter of serious concern and needs to be fully investigated.
As regards the acts of violence which were committed during the
post-electoral protests in Chişinǎu in April 2009, the Assembly
recalls its Resolution
1666 (2009) on the functioning of democratic institutions in Moldova
and the necessity of carrying out an independent, transparent and
credible inquiry into the events and the circumstances which led
to them.
16. As regards freedom of religion and of conscience:
16.1. recent amendments to the relevant
legislation raise concerns in Armenia and Azerbaijan, in particular
as regards the requirements for registration of religious organisations
and the definition of the offence of proselytism;
16.2. in Russia, the law on countering extremist activities
has been used abusively to restrict the right to freedom of association,
including of religious groups;
16.3. in Turkey, the lack of recognition of legal personality
is a problem affecting all religious communities. The Assembly notes
that the Venice Commission is currently preparing an opinion on
this issue, as well as on the right of the Greek Orthodox Patriarchate
of Istanbul to use the title “Ecumenical”;
16.4. legislation on alternative civil service has not yet been
introduced in Azerbaijan and Turkey, whereas in Armenia and Russia
relevant legislation exists but does not offer conscientious objectors
the guarantee of a genuine alternative service of a clearly civilian
nature; the continuing imprisonment of conscientious objectors in
Armenia and Turkey is a matter of serious concern.
17. Problems related to the situation of refugees and internally
displaced persons persist in Bosnia and Herzegovina, Georgia and
Serbia, while Turkey has not yet lifted the geographical reservation
to the 1951 Geneva Convention relating to the Status of Refugees.
Turkey should introduce domestic legislation in line with its international
obligations, including the principle of non-refoulement.
Alarming practices regarding the removal of refugees and asylum
seekers in Ukraine were documented by the United Nations High Commissioner
for Refugees in 2008. The Assembly also refers in this respect to
its Recommendation 1877 (2009) on Europe’s forgotten people: protecting the human rights
of long-term displaced persons.
18. As regards non-discrimination and the need to promote equality,
the Assembly notes that:
18.1. discrimination
and violence against women are persisting problems in many countries
under monitoring or post-monitoring procedures. In particular, the
legislation to combat gender-based violence must be strengthened.
Its implementation must be evaluated by parliaments, in accordance
with Assembly Resolution
1635 (2008) on combating violence against women: towards a Council
of Europe convention. Legislative measures taken by the Albanian
authorities to fight these phenomena are to be welcomed but have
yet to prove their effectiveness in practice. Armenia should prioritise
the adoption of a law on domestic violence, its prevention and provision
of support for the victims;
18.2. discrimination and violence against lesbian, gay, bisexual
and transgender (LGBT) people are continuing issues of concern in
Albania, Bosnia and Herzegovina, Russia and Serbia. The Assembly
has welcomed the recent adoption in Serbia of an anti-discrimination
law that addresses discrimination on grounds of sexual orientation,
and expects that a similar law pending before the Albanian parliament
will also be adopted soon;
18.3. serious concerns persist in Bosnia and Herzegovina where
not all citizens have equal access to government structures at all
levels, as the so-called “Others” cannot run in the election for
members of the presidency and participate in the designation of
delegates to the House of Peoples, despite repeated calls by the
Assembly for a constitutional reform which would abolish such inequalities.
Furthermore, the Assembly’s repeated calls to put an end to the
unacceptable phenomenon of “ethnic segregation” in primary and secondary
schools have yet to be followed.
19. As regards the protection of minorities and the fight against
racism and intolerance, the Assembly:
19.1. welcomes the fact that the Framework Convention for the
Protection of National Minorities (hereinafter “the Framework Convention”,
ETS No. 157) is in force in all countries under monitoring or post-monitoring,
with the exception of Turkey;
19.2. regrets that the signature and/or ratification of the
European Charter for Regional or Minority Languages (ETS No. 148)
is still an outstanding commitment for Albania, Azerbaijan, Bosnia
and Herzegovina, Bulgaria, Russia and “the former Yugoslav Republic
of Macedonia”. The charter has been signed but not yet ratified
by Moldova, while it has not been signed by Turkey;
19.3. notes that problems relating to the protection of national
minorities are examined in depth by its Monitoring Committee in
all its country-specific reports, which also take into account the
findings of the Advisory Committee on the implementation of the
Framework Convention, the European Commission against Racism and
Intolerance (ECRI) and the Committee of Experts of the European
Charter for Regional or Minority Languages;
19.4. notes the problems faced by the Roma community, including
lack of personal identity documents, low school enrolment rates,
and obstacles in access to or discrimination in employment, education
and housing in several countries under the monitoring or post-monitoring
procedure (notably Albania, Bosnia and Herzegovina, Bulgaria and
Serbia). The Assembly welcomes the efforts made by the authorities
of these states to tackle the problem through the adoption of several
national strategies and action plans, including in the context of
the 2005-2015 Decade of Roma Inclusion. However, further efforts
are needed to combat anti-Gypsyism and promote a positive image
of Roma through awareness-raising campaigns.
20. The Assembly welcomes the synergies that the Monitoring Committee
has developed with the Commissioner for Human Rights throughout
the reporting period, in particular, as regards the handling of
the war between Georgia and Russia and the post-electoral crises
in Armenia and Moldova.
21. The Assembly urges all states currently under monitoring or
engaged in post-monitoring dialogue to step up their co-operation
with the Monitoring Committee and to implement all the recommendations
contained in the country-specific resolutions adopted by the Assembly,
as well as those issued by the Commissioner for Human Rights and
other Council of Europe institutions and monitoring bodies. It reaffirms
its readiness to provide the necessary support to the countries
concerned through its parliamentary co-operation and assistance
programmes.
22. Furthermore, the Assembly takes note of the second cycle of
periodic reports on the first group of 11 member states which are
not subject to a monitoring procedure or involved in a post-monitoring
dialogue: Andorra, Austria, Belgium, Croatia, Cyprus, the Czech
Republic, Denmark, Estonia, Finland, France and Germany. As was
the case for the first cycle, they are based on the country-by-country
assessments made by the Commissioner for Human Rights and other
Council of Europe monitoring mechanisms or institutions.
23. The Assembly welcomes the fact that, since the adoption of
its Resolution 1515 (2006) on the progress of the Assembly’s monitoring procedure
(May 2005-June 2006):
23.1. Andorra
has ratified Protocol No. 12 to the European Convention on Human
Rights (ETS No. 177);
23.2. France has ratified Protocol No. 13 to the Convention,
on the abolition of the death penalty in all circumstances (ETS
No. 187);
23.3. Andorra and Belgium have ratified Protocol No. 14 to the
Convention amending the control system of the Convention (CETS No. 194);
23.4. the Czech Republic has ratified the European Charter for
Regional or Minority Languages (ETS No. 148).
24. Noting that a number of the states under periodic reporting
are not subject to certain specific monitoring mechanisms of the
Organisation because they have not yet ratified the relevant conventions,
the Assembly urges once more:
24.1. Denmark
and France to sign and ratify and Austria, Belgium, the Czech Republic,
Estonia and Germany to ratify Protocol No. 12 to the European Convention
on Human Rights (ETS No. 177);
24.2. Austria, the Czech Republic, Denmark and Germany to ratify
the revised European Social Charter (ETS No. 163), noting that all
of them have ratified the 1961 European Social Charter (ETS No. 35);
24.3. Estonia and Germany to sign and ratify and Austria, the
Czech Republic and Denmark to ratify the Additional Protocol to
the European Social Charter Providing for a System of Collective
Complaints (ETS No. 158);
24.4. France to sign and ratify and Belgium to ratify the Framework
Convention;
24.5. Belgium and Estonia to sign and ratify and France to ratify
the European Charter for Regional or Minority Languages (ETS No. 148);
24.6. Estonia and the Czech Republic to sign and ratify and
Andorra, Germany and Finland to ratify the Convention on Action
against Trafficking in Human Beings (CETS No. 197).
25. The Assembly, reiterating the special role of national parliaments
in providing democratic oversight over government action, urges
the national parliaments of the states under periodic reporting
to:
25.1. use these periodic reports
as the basis for a debate on their country’s record with regard
to the fulfilment of their statutory obligations as member states
of the Council of Europe, as well as obligations stemming from Council
of Europe conventions;
25.2. promote execution of the judgments of the European Court
of Human Rights and compliance with recommendations made by the
Commissioner for Human Rights and other specific Council of Europe monitoring
bodies, both by provoking and accelerating the necessary legislative
initiatives and exercising their oversight role with respect to
government action.
26. The Assembly invites the European Union bodies, as far as
applicable, to make use of the reports of the Assembly’s Monitoring
Committee, prepared under its monitoring procedure or post-monitoring
dialogue, as well as its periodic reports, and take into account
the findings of the relevant Council of Europe human rights institutions
and monitoring mechanisms, such as the judgments of the Court and
the reports of the Commissioner for Human Rights, as well as the
relevant resolutions and recommendations adopted by the Assembly.