EU Parliament adopts important resolution on Roma rights – next is implementation

The European Parliament has with broad majority adopted a resolution proposed by Swedish MEP Soraya Post on Roma rights in Europe.

The text:

The European Parliament,

•having regard to the preamble of the Treaty on European Union (TEU), notably its second and its fourth to seventh indents,

•having regard to, amongst others, Article 2, Article 3, paragraph 3, second indent, and Articles 6 and 7 TEU,

•having regard to the Charter of Fundamental Rights of the European Union of 7 December 2000 (‘the Charter’), proclaimed on 12 December 2007 in Strasbourg, which entered into force with the Treaty of Lisbon in December 2009,

•having regard to the European Parliament resolution of 9 March 2011 on the EU strategy on Roma inclusion and the Communication from the Commission on An EU Framework for National Roma Integration Strategies up to 2020  (COM 2011(0173)), the Commission Report on the ‘implementation of the EU framework for national Roma integration strategies’ (COM (2014)0209), and to the Council recommendation of 9 December 2013 on ‘Effective Roma integration measures in the Member States’,

•having regard to the outcomes of the 2011 Roma Pilot Survey conducted by the Agency for Fundamental Rights,

•having regard to the Council of Europe Framework Convention for the Protection of National Minorities and the European Convention for the Protection of Human Rights and Fundamental Freedoms,

•having regard to the Declaration of the Committee of Ministers of the Council of Europe on the Rise of Anti-Gypsyism and racist violence against Roma in Europe adopted on 1 February 2012,

•having regard to the General Policy Recommendation N°13 of the European Commission against Racism and Xenophobia (ECRI) on combating anti-Gypsyism and discrimination against Roma,

•having regard to the comprehensive Action Plan, adopted by OSCE participating States, including EU Member States and candidate countries, focusing on improving the situation of Roma and Sinti within the OSCE area, in which the States undertake inter alia to reinforce their efforts to ensure that Roma and Sinti people are able to play a full and equal part in our societies, and to eradicate discrimination against them,

•having regard to Rule 123(2) of its Rules of Procedure,

A.Whereas Roma, with an estimated population of 10 – 12 million in Europe, are the largest ethnic minority in Europe;

B.Whereas the word ‘Roma’ is used in this resolution as an umbrella term which includes different related groups throughout Europe, whether sedentary or not, such as Roma, Travellers, Sinti, Manouches, Kalés, Romanichels, Boyash, Ashkalis, Égyptiens, Yéniches, Doms, Loms that can be diverse in culture and lifestyles;

C.Whereas anti-Gypsyism, the special kind of racism that is directed towards Roma, is an ideology founded on racial superiority, a form of dehumanisation and institutional racism nurtured by historical discrimination, which is expressed, among others, by violence, hate speech, exploitation, stigmatisation and the most blatant kind of discrimination;

D.Whereas anti Gypsyism is one of the main causes of discrimination and marginalisation that the Roma people have suffered historically in many European countries;

E.Whereas many Roma still live under overwhelmingly poor conditions and face extreme levels of social exclusion and discrimination;

F.Whereas the situation of the European Roma, having historically been part of society in many European countries without a single kin-State and having contributed to it as its citizens, is distinct among national minorities in Europe which justifies specific measures at European level; and whereas Roma are part of Europe’s culture and European values;

G.Whereas Roma women are often exposed to multiple and intersectional discrimination on grounds of gender and ethnic origin and have limited access to employment, education, health, social services and decision-making; whereas discrimination can occur within the mainstream society in a context of growing anti-Roma racism, but also within their communities by reason of their sex;

H.Whereas the 2011 Commission’s Communication on An EU Framework for National Roma Integration Strategies called on Member States to adopt or further develop a comprehensive approach to Roma integration and endorse a number of common goals; and whereas Council recommendation of 9 December 2013 invites Member States to take effective policy measures to ensure equal treatment of Roma people and the respect of their fundamental rights, including equal access to education, employment, healthcare and housing;

I.Whereas the date of 27 January, the day of liberation of Auschwitz-Birkenau concentration camp has been designated by the United Nations as the International Holocaust Memorial Day;

J.Whereas according to estimates, at least 500, 000 Roma were exterminated during World War II by the Nazi and other regimes and their allies, and that in some countries, more than 80 % of the Roma population were exterminated; Reminds that at least 23 000 Roma were gassed to death in the Zigeunerlager (Gypsy camp) of Auschwitz-Birkenau during World War II. In one night, from 2 to 3 August 1944, 2 897 Roma, mostly women, children and elderly people, were killed in this camp. Therefore, 2 August has been chosen by Roma organisations, as the day to commemorate all Roma victims of this genocide;

K.Whereas the genocide of Roma by the Nazi and other regimes and their allies during World War II is a fact that is still largely ignored and is therefore, not acknowledged by the broad public and often not recognised or taught in schools, making Roma people part of the “ignored” victims of the genocide during World War II;

L.Whereas commemorating crimes against humanity and gross violations of human rights is crucial in order to pursue the causes of peace, reconciliation, democracy and human rights in Europe; and whereas the genocide of the Roma in Europe deserves full recognition commensurate with the gravity of crimes by Nazi and other regimes designed to physically eliminate the Roma of Europe as well as Jews and other targeted groups;

M.Whereas recognising and commemorating the genocide of Roma during World War II it is important to provide the Roma people with restitution where appropriate for the atrocities that were committed towards them by the Nazi and other regimes and their allies during World War II;

N.Whereas the recognition of the genocide of Roma during World War II and the establishment of a dedicated European Memorial Day would thus constitute an important symbolic step in the fight against anti-Gypsyism and contribute towards the general knowledge of Roma history in Europe;

1.Expresses its deep concern over the rise of anti-Gypsyism manifested inter alia through anti-Roma rhetoric and violent attacks, including murders, against Roma in Europe, which are incompatible with the norms and values of the European Union and constitute a major obstacle to the successful social integration of Roma and full respect for their human rights;

2.Underlines that discrimination and marginalisation is never caused by an inert weakness of an individual or a group that suffers such discrimination and marginalisation but mainly by the failure of the mainstream society to recognise the rights of individuals and the failure to provide the necessary structures for individuals to invoke these rights;

3.Calls on the Member States to implement effectively the Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin in order to prevent and eliminate discrimination against Roma, in particular in employment, education and access to housing;

4.Calls on the need to combat anti-Gypsyism at every level and by every means and stresses that this phenomenon is an especially persistent, violent, recurrent and commonplace form of racism; Calls on Member States to further strengthen the fight against anti-Gypsyism as part of their National Roma Integration Strategies promoting best practices;

5.Welcomes the involvement of the Roma communities and NGOs in the implementation of the National Roma Integration Strategies, and calls for their further involvement in the design, monitoring, evaluation and implementation of the NRIS;

6.Ensure that specific measures for women’s rights and gender mainstreaming are included in the National Roma Integration Strategies (NRIS), and that assessment and annual monitoring take into account a women’s rights and gender equality perspective in each section of the National Roma Integration Strategies;

7.Calls on the Member States and the Commission to consider children as a priority when implementing the EU Framework for National Roma strategies, reiterates the importance of promoting equal access to housing, healthcare, education and dignified living conditions for Roma children;

8.Calls on the Member States to implement effectively the Council Framework Decision 2008 / 913 / JHA of 28 November 2008 on combatting certain forms and expressions of racism and xenophobia by means of criminal law in order to combat successfully anti-Gypsyism, anti Roma rhetoric and violent attacks against Roma, as well as condoning, denial and gross trivialisation of the genocide against Roma;

9.Recalls that Roma are part of Europe’s culture and shared values and therefore encourages Member State and other European countries to address the history of Roma people through dialogue with citizens and young people, in particular the genocide of Roma during World War II;

10.Condemns utterly and without equivocation all forms of racism and discrimination faced by the Roma and underlines the fact that anti-Gypsyism must be effectively addressed in order for measures in other fields to be effective;

11.Calls in this regard on the Commission to effectively monitor and assess Member States compliance with the fundamental values of the EU; calls on the Commission to ensure that fundamental rights, democracy and rules of law are respected in all Member States, to effectively monitor and assess Members States’ compliance with these values, and to ensure that the Commission responds to any systemic breaches which may occur;

12.Recognises therefore solemnly the historical fact of the genocide of Roma that took place during World War II;

13.Calls on Member States to officially recognise this genocide and other forms of persecution against Roma such as deportation and internment that took place during World War II;

14.Declares that a European day should be dedicated to commemorate the victims of the genocide of the Roma during World War II and that this day should be called the European Roma Holocaust Memorial Day;

15.Instructs its President to forward this resolution to the Council, the Commission, the governments and the parliaments of the Member States and the candidate countries, the Council of Europe and the OSCE and the United Nations.

Rights of persons with mental disability: landmark ruling by Strasbourg Court

The European Court of Human Rights has taken a decision which should affect positively the situation of persons with mental health problems all over the continent. The ruling means that no one should be totally deprived of his or her legal capacity.

The Court found that Stefan Stankov had been unlawfully detained in Bulgarian disability institutions for over 15 years, and had been subjected to degrading treatment. In 1999 Mr Stankov had been put under guardianship by his mother and ever since had lived in institutions, segregated from society and prohibited from authoring his own life.

In the institutions he shared a pool of clothes with other residents. The toilets and bathrooms were unsanitary and dilapidated, and for a decade – day in and day out – the food was “insufficient and of poor quality”. The Court noted that all of this would have created “a sense of inferiority” in Mr Stankov.

The main point is that in the institution his life was wasted: the State denied him the right to live in and contribute to his community like everyone else.

The Court awarded Mr Stankov 15,500 EUR and ordered the government to pay the non-governmental Mental Disability Advocacy Center (MDAC) 6,000 EUR towards its legal costs during the legal process.

This case demonstrates the enormous importance of competent litigation by organisations such as MDAC, which researched and brought the case to the Strasbourg Court. Without these efforts Mr Stankov would not have been given a chance to start a real live again.

Persons with mental health problems and intellectual disablities are extremely vulnerable even in today’s societies. Their human rights are too often violated and they have in many cases few possibilities to complain. Therefore, this ruling is particuarly significant and certainly in total compliance with the UN Convention on the Rights of Persons with Disability.

It sends a crucial message to all those states which still allow guardianship to mean deprivation of all individual rights.

Protection of Roma rights in Sweden and Europe – progress and failures

I was interviewed by Bernard Rorke for the blog of European Roma Rights Centre, headquartered in Budapest. Below are the questions and my answers.

1. When you published the report ‘Human rights of Roma and Travellers in Europe’ back in 2012, you hoped it would encourage constructive discussion on what must be done to put an end to discrimination and marginalisation. How do you see the situation two years later?

– Sadly, the trend is negative. The Roma population has been disproportionally affected by the economic crisis and the austerity policies. The growth of organized nationalistic and xenophobic political parties has caused severe set-backs. Roma communities have been targeted by extremists in several European countries. EU programs for Roma rights have not been effective.

2. One of your striking recommendations to combat anti-Gypsyism was that truth commissions be established in a number of European countries to put on record the history of mass atrocities against Roma people. Does the Swedish White Paper provide a practical example of how this might be done? Could you tell us a little about that, and about any good practices that emerged from the process?

– The Swedish White Paper, which covered the situation of Roma throughout the 20th century, exposed a shameful history of systematic discrimination based on racial prejudices. For years the official intention was to make life for the Roma population so unpleasant that they would prefer to leave the country. Not least children and their schooling were victims of this policy.
– Roma people in Sweden welcomed this report. At long last there was an official recognition of the persecution.
– This government paper is factual and relevant but it would in my opinion have been more appropriate have it prepared by an independent commission (even if the government had an advisory group of some Roma representatives).
– Lessons: 1) Very important that a procedure is set up to disclose and present the true history of how the Roma people have been treated; 2) This work should be impartial and with direct participation of Roma representatives; 3) There should be a follow-up on the facts presented – in schools and to the broader public through education materials, exhibitions and other information techniques; 4) When relevant, victims should be able to claim compensation.

3. In a recent blog you mentioned that following a study visit to Romania, you were deeply saddened by the continued misery among Roma communities. What were the particular situations that struck you on that visit?

– Most Roma in Romania live in deep poverty. In practice the social rights of many are denied, for instance regarding housing, education, health care and employment. There are of others in the country who are extremely poor, but the Roma are overrepresented among those in misery. The main reason is anti-gypsyism and marginalization. The poisonous prejudices against this minority is widespread in the country and too little is done to counter this mentality.

4. You spoke of feeling encouraged after having met “some officials both locally and in government circles who are prepared to contribute to sustainable solutions.” The Decade of Roma Inclusion is nearly over, and civil society and the European Commission’s basically agree that the current Romanian National Roma Integration Strategy is dismal. Do you have any hope that the Romanian authorities can come up with sustainable solutions proportionate to the problems of exclusion by 2020?

– Yes, I met also some officials who genuinely realize that something energetic must be done to break the vicious cycle and to protect and promote Roma rights. We outsiders should avoid painting all decision-makers in Romania in negative colors, this does not help.

5. What do you think of recent developments in France: incidents of anti-Roma violence, ever more harsh official rhetoric, mass evictions, and plans to use anti-terrorist measures as a cover to expel ‘undesirable’ EU citizens?

– When I was Council of Europe Commissioner for Human Rights the French government tried to have me dismissed after I had voiced criticism against its policy towards visiting Roma people from Romania and Bulgaria. That failed but the policy of evictions and expulsions have continued. The reports I have now received from France on this issue are deeply worrying.

6. What to do about anti-Roma hate speech online and offline? As you say, proper self-regulation has proven to be wanting in several countries. But how do we balance concerns about freedom of expression and protection against the kind of speech which amounts to incitement to hatred?

– True, this balance is the issue. Freedom of expression is very cardinal and must be protected. But this freedom is not unlimited, which is also recognized in the European Convention on Human Rights. Speech which incites to violence should never be allowed. When such violence targets minorities it is particularly important that there is a clear response from the justice system. My feeling is that the law enforcement structures not always take hate speech against Roma with the necessary seriousness. Some brutal hate crimes – for instance in Czech Republic and Hungary – have happened after a period of anti-Roma hate speeches.

7. You stated that the coordination on human rights between the Council of Europe and the EU has not worked well in spite of declarations on “European values” which have been strikingly similar. Could you tell us more about this?

– In the field of human rights there are a number of regional and international governmental actors. So also in relation to Roma rights in Europe which is, at least partly, covered by Council of Europe, EU, OSCE and branches of the United Nations. A considerable dynamics could be mobilized through coordination between these bodies. Having worked on the inside, I had to notice that this opportunity was often missed. This is a pity as all of them have limited resources.
– However, I think it is fair to say that a bigger problem is the lack of implementation of the governments in the member states on agreements they have once reached in defense of their citizens.

8. You wrote that “the original financial crisis turned into a broader economic crisis which in turn ended up in a political crisis – and a crisis of basic values.” What basic values are in crisis, and what do you think are the consequences of this crisis for European societies?

– The growth of authoritarian and xenophobic forces is a symptom of the crisis. Even more serious is that larger political parties too often strike deals with such groups or coopt their proposals. Such compromises may in the longer run undermine the very basis of our democracies. What is at stake are basic human rights for everyone in society and respect for those who are different from the majority or mainstream.
– The political rhetoric has been brutalized: the poor have themselves to blame; the unemployed are lazy and have not tried enough; the beggers should return instead of pestering us; if the immigrants do not like it here, they could go home; the minorities should accept our culture if they want to stay: we do not multiculturalism; etcetera.
– The intolerant and extreme nationalists are creating divisions while we need to build bridges. If they are able to gain more support our societies will change character – not to the better.

9. You have often stressed the importance of non-governmental groups and civil society initiatives as a counter-balance to authoritarian and xenophobic trends. Following Prime Minister Orban’s declaration of intent to build an illiberal democracy, how do you view the recent actions taken by the Hungarian Government against NGOs?

– Ever since the Universal Declaration of Human Rights was adopted non-governmental groups have played an absolutely crucial role in both protecting and promoting human rights. This is now endangered by imposed restrictions on these groups in a number of countries. They are forced to go through licensing procedures and made subject to harassments by fiscal police and other authorities. Government-controlled media launch negative campaigns against those who dares to voice criticism. This is serious.

10. You have been a driving force and for many an inspiration for many years as regards the rights of the child. In Poland, 2012 was the year of Janusz Korczak: 70 years after his execution by the Nazis and 100 years after he started working in an orphanage in Warsaw, you wrote that some of his ideas are still not fully understood and they are absolutely relevant in the work for children’s rights today. What needs to be understood better, and how much remains to be done to safeguard the fundamental rights of the child across Europe?

– The writings of Janusz Korczak define what the rights of the child are really about. We adults ought to see the child as an individual with rights now, not only after having grown up. We should learn to listen to children and never meet their views and actions with any form of violence. One key word is respect. As a small example, Korczak asked us never spy into the diary of a child, she has the right to keep her secrets for herself. That deeper understanding is still missing among many of us.

Serious new facts have surfaced about UK torture in Northern Ireland in early seventies

I led an Amnesty International delegation to Belfast in 1971 to investigate allegations we had received of internees subjected to brutal physical interrogation methods combined with measures of ‘sensory deprivation’. Those were evidently troubled times and the UK authorities were clearly not interested in any independent investigation. They had themselves issued whitewash reports and Prime Minister Heath was reported to have dismissed Amnesty International in private meetings as a “disreputable organization”.

We were however determined to find the truth regardless of whether the facts would please the authorities or not. I do still remember that trip in the bleak, tense winter of December 1971. Among those who gave testimonies to there were also a number of ex-internees who one by one described what they had gone through. They had been severely beaten during arrest and transport. Some of them had still bruises on their bodies, one of them was black and blue over his buttock and one thigh which our medical expert found consistent with his complaint about repeated, brutal beatings. Moreover, several of those arrested had gone through a treatment which brought them to a mental breakdown.

The breakdowns had come through the combination of being forced to stand spread-eagled against a wall for many long hours, being hooded and thereby unprepared for the sudden beatings, forced to hear one hissing noise which drowned all other sounds, be deprived of food and water and prevented from sleeping.

It was evident to us that these were very grave human rights violations, indeed amounting to torture. And that is what our report and statements set out. We documented the use of the now infamous ‘five techniques’ which were combined with physical assaults and death threats to the men.

The Irish government took a bold and unprecedented step at the time and complained to the European Commission of Human Rights that the UK’s actions amounted to torture. I was deeply disappointed when the European Court of Human Rights concluded eventually in 1978 that the treatment of detainees in Northern Ireland under emergency internment powers did not amount to torture. Similar methods have since then been used against detainees the world over, for instance in the “enhanced interrogation” during the US ‘war on terror’. In other words, the ruling of the European Court had serious consequences.

Imagine my surprise when I learned recently that Irish television RTÉ had broadcast a programme which had uncovered documents strongly suggesting that the UK government had in fact misled the Strasbourg Court. The RTÉ programme — an exemplary piece of public service investigative broadcasting — found documents showing that the British government knew that its core argument, that the effects of techniques used on the “hooded men” were not severe or long-lasting, was untrue.

In fact it suggests that the UK government knew then of the severe, long-term psychological and physical effects of the ‘five techniques’, and in fact considered them as ‘torture’. RTÉ has also unearthed a previously unseen letter which shows that UK cabinet ministers took a ‘political decision’ to permit the use of the ‘five techniques’ in Northern Ireland.

If substantiated, this was a grave, additional injustice to the victims and also promoted impunity then – and for those who have used such methods in other situations in the last four decades.

The UK government, as a signatory of the UN Convention against Torture and the European Convention on Human Rights, must ensure that facts be clarified in this critical case and remedial action be taken.

In the years since then, I have served in a number of other posts traveling the length and breadth of Europe to investigate and document human rights violations. When I served as Commissioner of Human Rights for the Council of Europe it became apparent that European states had cooperated with the CIA in its rendition and secret detention programme. I argued then that the entire European system of human rights protection was undermined by allowing the truth about torture to remain in the dark.

That holds certainly true for the case of hooded men. If there is one thing I have learned, time does not heal all wounds if the truth doesn’t come out and justice is denied.

Family reunification is a human right

A restrictive refugee policy in European countries has undermined the principle that separated families should be allowed to reunify. Where refugees already reside in a country, governments try to limit the arrival of their close relatives. The result is unnecessary human suffering especially in those cases where dependent family members have been kept apart. This policy violates the right to family reunification stipulated in international human rights standards.

In a number of declarations, the world community has agreed that the family is the fundamental group unit in society. From this follows the right to family unity which in turn places certain obligations on state authorities. For refugees, this right is particularly crucial since they are often forced to leave family members behind when fleeing.

Prolonged separation from close family members can cause severe stress and prevent a normal life for both those who have left and those who remain at home. Indeed, many refugees and other migrants live isolated lives, cut off from normal social relationships and, as a consequence, they face even more difficulties in integrating into their new environment. Those left behind – often women and children – tend to be vulnerable emotionally, economically and often physically.

Though states must be able to retain their right to regulate and control the entry of non-nationals, there has been a progressive development in international law as regards the right to family reunification across borders. Nowadays, respect of the right to family life requires not only that states refrain from direct action which would split families, but also that measures be taken to reunite separated family members when they are unable to enjoy the right to family unity somewhere else.

This development started when the 1951 UN Convention Relating to the Status of Refugees was adopted. The diplomatic conference stated in a final act that the unity of the family was an “essential right” and recommended that governments take the necessary measures to protect the refugee’s family especially to:

• ensure that the unity of the refugee’s family is maintained, particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country; and

• protect refugees who are minors, in particular unaccompanied children and girls with special reference to guardianship and adoption.

The Executive Committee of the UN High Commissioner for Refugees has since adopted several authoritative statements promoting family reunification as both a human right and as a humanitarian principle. The agency has encouraged governments to adopt legislation to implement “a right to family unity for all refugees, taking into account the human rights of the refugees and their families”.

In the Council of Europe, both the Committee of Ministers and the Parliamentary Assembly have used similar language to the UNHCR in several recommendations and resolutions. Notions of “family” and “family reunification” also enjoy protection under the European Convention on Human Rights and the European Social Charter.
The UN Convention on the Rights of the Child stipulates that children should not be separated from their parents against their will (Article 9), and that governments should deal with cases of family reunification across borders “in a positive, humane and expeditious manner” (Article 10).

However, in practice, government policies have not always been positive, humane and expeditious – either for children or for adults. A number of governments have chosen to interpret their obligations narrowly, and increasingly so. Several define “family” as including only parents and their immediate children. This ignores the obvious fact that the shape of the core family differs depending on different traditions and situations.

In war-torn and HIV-affected areas, for instance, it is not unusual for orphaned children to be cared for by other relatives. Elsewhere, it is often grandparents, or other members of the extended family, who depend on younger family members. A positive and humane policy should consider the family pattern in each specific case.

Some governments argue that family unity could be achieved if the newcomers would go back to their family members in the country of origin: the implied message is that the family separation is self-inflicted. However, many cannot go back home for the very same reasons which forced them to flee. This inability to return applies not only to those granted asylum, but also to those seeking such status, and indeed to many of those with temporary or subsidiary protection. Again, a positive and humane policy would allow for individual cases to be considered on their own merits.

Other obstacles are frequently placed in the way of family reunification. For example, reunification is sometimes refused because of strict requirements imposed on individuals to be financially self-supporting, and those receiving social assistance are often barred from acting as sponsors. Yet this policy ignores the reality in many cases. It certainly ignores the fact that – as family unification is a human right – the poverty of the resident family member should not hinder an application.

Official attitudes to requests for family reunification across borders have been strikingly negative. The response has often been marked by suspicion – as if applicants want to deceive the authorities and to obtain undeserved favours. There have, of course, been cases where people have provided inaccurate information in order to secure entry for others, but it is a great mistake to allow such cases to dictate overall policy.

Significantly, DNA testing has been introduced in several countries as a key means of assisting government decision-making. The purpose is to verify whether the applicant really is either the child or the parent of the resident family member. By definition, this method excludes consideration being given to any other relations, for instance adopted children. Nor is this procedure adjusted to reflect the actual family pattern in those cultures from which many refugees fleeing to Europe come.

The UN High Commissioner for Refugees has also rightly warned that DNA testing can have serious implications for the right to privacy. Though voluntary testing can be acceptable in certain circumstances in order to prevent fraud, this should be carefully regulated, and the sharing of any data thus obtained should be bound by principles of confidentiality. When testing is considered necessary, the costs should be borne by the requesting authorities.

Some governments have adopted even more restrictive rules in response to the popular public perception that foreigners constitute a danger. Some years ago a decision was taken in Denmark that a person must be a citizen of the country for 28 years before obtaining the right for his or her foreign partner to secure a residence permit. This clearly discriminates against those who have not lived in the country since childhood. At that time the Danish Government also introduced a “points system” to the effect that less educated relatives would be further disadvantaged when seeking family reunification.

The administrative processing of applications is far from “expeditious” in many countries. In fact, the process is often both extremely slow and unnecessarily bureaucratic. Some countries require that applications be made at the embassies or consulates in the country of origin which is not always easy or even possible. In other cases, the authorities request documents or information offering hard proof of various facts which can be very difficult for applicants to obtain from the authorities in their countries of origin. Requirements to provide evidentiary proof of family relationships for the purpose of reunification have therefore to be realistic.

Those who have seen the pain suffered by separated families realise how much of a mistake it is to deny the right to family unity – for the refugees, for the family members left behind, and indeed for the host country. Facilitating family reunification helps to ensure the physical care, protection, emotional well-being and often also the economic self-sufficiency of refugee communities. This is in the interests of everyone.

UN Child Convention 25 years – what remains to do?

Twenty-five years have passed since the UN Convention on the Rights of the Child was adopted by the General Assembly. It has since become one of the most well-known and broadly supported international human rights treaties.

All the states in the world – except the United States and the war-torn Somalia and South Sudan – have ratified it and thereby legally bound themselves to implement its provisions.

As a result, the situation of children has been placed higher on the political agenda. Yet, the actual implementation of the convention has been less effective than we anticipated. The main reason for this failure is the absence of a systematic, comprehensive approach to children’s rights as a political priority.

Although children make up a large section of the population and constitute the future of society (in more ways than one), their concerns are seldom given top priority in politics. Ministers responsible for children’s affairs tend to be junior and are kept outside the inner circle of power. Children’s concerns are often seen as non-political, and sometimes trivial. The image of politicians on the campaign trail kissing babies has become symbolic of this trivialisation.

Gestures are not enough to meet the requirements of the convention – what is needed is serious political discussion and real change. Improvement in the status of, and conditions for, children are of course the very purpose of the convention. With ratification, a state commits itself to respecting the principles and provisions of the convention, and transforming that commitment into a reality for all children.

One possible reason for the delay in implementing the convention could be the decision makers’ lack of understanding or acceptance of the obligations arising from it. They appear not always to have made the distinction between charity and a rights-based approach.

Children in need, just like persons with disabilities, have long been the favoured “objects” of charity. They have been given support, not as a matter of right, but because people have felt sympathy for them. This is one of the attitudes that the convention challenges.

The convention sees the child as a subject. He or she has the right to schooling, health care and an adequate standard of living, as well as the right to be heard and to have his or her views respected. This goes as much for the cute toddler as for the problematic teenager.
The very notion that children have rights is a radical one, totally alien to the old-fashioned belief that children are only entitled to rights on their 18th birthday, and that their parents hold these rights until that date.

That children and their interests should be given priority is another important message in the convention. It states as an overarching principle that “the best interests of the child shall be a primary consideration” in all actions concerning them, whether those actions were taken by local or national authorities, parliaments, courts, or social welfare institutions, and including those run on a private basis (Article 3).

The convention also requires concrete steps to be taken to guarantee genuine implementation. It prescribes that governments must take legal, administrative and other measures and use “the maximum extent of their available resources” to ensure that children can enjoy their rights (Article 4).

Many of us who took part in the drafting of the convention were aware of the risk that the final text would be seen by some as an idealistic wish list rather than as a definition of the human rights of children. The challenge was to give substance to the obligations which would follow from a rights approach.

The UN Committee on the Rights of the Child, the elected body which monitors the application of the convention, has attached a great deal of importance to the methods and means used for its implementation. Based on that experience, and suggestions from UNICEF, non-governmental organisations and governments, one could develop a checklist for systematic measures that governments should take if they are serious about their obligations to children. These measures include the need to:

• develop a comprehensive national agenda for children;

• ensure that all legislation is fully compatible with children’s rights which requires incorporating the convention into domestic law and practice, as well as ensuring that its principles and provisions take precedence in cases of conflict with any national legislation;

• make children visible in the process of governmental policy development by introducing child impact assessments;

• carry out adequate budget analysis to determine the proportion of public funds spent on children, and to ensure the effective use of all such resources;

• establish permanent bodies or mechanisms throughout all sectors of government (including local authorities) to promote co-ordination, monitoring and evaluation of activities in furtherance of the convention;

• ensure that adequate data is collected and used to constantly improve the situation of all children in each jurisdiction;

• raise awareness and disseminate information on children’s rights and what they mean in reality, including through training for all those in government – especially, but not exclusively, for those whose work relates to children or who work directly with children;

• involve children themselves, as well as civil society, in the process of implementation and awareness-raising;

• develop independent statutory offices for children – a children’s ombudsman, commissioner or other similar institution – to promote children’s rights; and

• give children’s rights priority in all forms of international co-operation, including programmes for technical assistance.

These 10 recommendations are mutually reinforcing and have several characteristics in common. Each relies on public debate and transparent procedures. Each advocates a “first call” for children, while recognising the need for co-ordinated efforts to ensure that children’s rights are incorporated into the existing administrative structures, and they require children themselves to take part in the process.

The basic idea is that children’s issues be moved from the exclusive realm of charity on to the political agenda – and placed high thereon.

Several European governments have taken action on these recommendations, for instance, through adopting a national strategy, improving their internal co-ordination around children’s issues, developing good data collection systems and appointing an ombudsman for children (either within the office of the general ombudsman or as a separate body).

Yet, there are glaring gaps which appear to indicate that governments are still not being sufficiently serious. This is particularly reflected in the continued lack of child protection.

Too little is being done to give children with disabilities an opportunity for good schooling; children within minorities, not least the Roma, are disadvantaged in most spheres of life; children in conflict with the law are too often detained; children among irregular migrants are vulnerable and suffer exploitation; and refugee children are not well treated. Corporal punishment is retained in about half of the countries in Europe and some children also face violence at school. Justice systems, schools and cities are not yet child-friendly.

One reason why powerful politicians tend to issue rhetorical statements rather than develop concrete children’s programmes is probably because many of them lead a life which isolates them from a child’s everyday reality. Yet the opinions of children themselves are not taken seriously, and their parents or guardians are also accorded little time or opportunity to present their views.

In fact, the genuineness of political commitment is most clearly tested in budget discussions. In the current austerity programmes there have been budget cuts in several countries which have affected children and services directed at them – either directly in the state budget, or via reduced support to local authorities.

Funds for education, health care and social benefits for vulnerable groups have been significantly reduced in a number of countries, and this is before governments start paying back the debts incurred when public money was used to meet the financial crisis and rescue the banking system.

This has provoked a widespread discussion on the meaning to be accorded to the UN convention’s commitment that “the maximum extent” of available resources go to children. Inevitably, children’s interests will also suffer when society as a whole is forced to tighten its belt. However, it is clearly against the very spirit of the convention if decisions are made which would penalise those who are already vulnerable, and so increase existing inequalities. In a time of economic stringency, the human rights principle of non-regression is an important one for the authorities to bear in mind as they choose which government programmes to maintain or to abandon.

It is now particularly urgent that the short and long-term economic impact on children be analysed before budgets are finalised. In Europe we already have a serious problem of child poverty – it is appallingly widespread in some countries, and a large number of children are disadvantaged from the outset. An economic crisis is hardly an argument for not addressing child poverty – on the contrary, it this is when it is even more urgent to do so.

Resource limitations cannot be seen as an excuse by states for ignoring their obligations to protect children’s rights or for delaying the implementation of measures. The greater the difficulty, the more reason there is to act with a clear political strategy so as to address the problems in a systematic fashion.

Indeed, it is particularly in times of crisis that the state has to reaffirm its commitment and to fully respect the rights of children – all children.

Action Plans for Roma and Sinti must be implemented

Roma and Sinti people are still suffering systematic discrimination in large parts of Europe. They are denied basic human rights and victims of flagrant racism. As a consequence, they remain far behind others in society in terms of educational attainment, employment, housing and health standards. They have no proportional representation in public and political life.

In social terms they tend to be marginalised. Indeed, a number of them are stateless or do not even have documents to prove their identity. When attempting to migrate they are discriminated against and often refused entry or expelled. Their exclusion from society feeds isolationism among the Roma and Sinti communities which in turn encourages prejudice against them among xenophobes. More effort is needed to break this vicious cycle.

This is an enormous challenge.

Xenophobic and extreme nationalistic tendencies in today’s Europe have worsened the situation for the Roma and Sinti people. They are not seldom targeted in hate propaganda by neo-fascists and other extremists; they have suffered brutal hate crimes which have not even spared children. Many assaults are not reported to the law enforcement due to lack of trust in the police.

The problems are not new and have been on the agenda of OSCE and several other international bodies for a number of years. But conferences, drafting of plans and other investments of time and money have produced little results. Inequalities seem only to increase. Frustration is widespread, not least among the Roma and Sinti themselves.

OSCE:s Action Plan on Improving the Situation of Roma and Sinti in the OSCE Area was adopted already 2003. Five years later its implementation was formally evaluated. Though some progress was noted – not least the fact that Member States had adopted action plans for integration of these minorities and that anti-discrimination legislation had been adopted – the overwhelming picture was that the concrete situation for Roma and Sinti had not really improved.

Among the problems highlighted in this evaluation report 2008 were continued forced evictions; lack of secure land tenure; inadequate alternative housing; lack of civil and voter registration; and inability of Roma and Sinti children to attend school.

Agreed plans had had little influence on local authorities. On that level they were received with apathy and neglect. Generally, there was a lack of institutional mechanisms for sustainable progress. Said the implementation report then.

Another six years have passed; my clear impression is that these problems, and others, remain.

There should no longer be any confusion on what ought to be done. The analysis of the key obstacles is clear. The tools available to tackle the injustices are identified.

For instance, we know that education is absolutely crucial in order to break the vicious cycle. We also know that pre-schooling is a way to prepare for successful learning and avoiding drop-outs and other school failures.

We have decided that the automatic placement of Roma children in special, separate classes is wrong and should be stopped. We know that it is important for the poor minority children that they can have free breakfast or lunch in school. We have understood the value of school mediators or personnel with minority background involved in the school system. We sense the need for further scholarships to allow poor pupils to continue their education.

We know also the chain effects. If a child does not receive sufficient schooling she or he will be disadvantaged in the job market. If they cannot get a job they cannot improve their housing situation. Poor housing conditions in turn affect one’s health and also the education of the next generation of children.

Consequently we have also understood the importance of adult education as well; too many parents cannot read and write.

We do understand the crucial importance of decent housing standards. A great number of Roma and Sinti live in unhealthy, slum-like environments – in many cases without electricity, water and acceptable sanitation. Their tenure rights are in many cases questioned and evictions continue without alternatives having been offered. This is another vicious cycle.

The same goes for the health care situation. We know that the expected life length of people of this minority is considerably shorter than for the majority population. We understand that this is because of illnesses and diseases which have not been cured. Roma and Sinti are disadvantaged in the health service – they cannot pay under the table; they may not have an ID to prove that they have the right to access; they may fear a hostile reception when knocking at the hospital door.

We must also have understood that Roma and Sinti have become losers on the job market. Several of their traditional jobs have disappeared and they have difficulties to compete in the neoliberal economy. Poor education is of course a disadvantage, but even educated Roma and Sinti have had difficulties to get employed. Obviously, the reason is antiziganism.

We have also learned that there is a need of a comprehensive approach to address the combined problems of poor education, bad housing, lacking health care and unemployment. Also, that there is in all this a gender aspect – that it is greatly important that schooling and health care also reaches girls and that Roma and Sinti women have a voice in the broader society as well.

If we have grasped the genuine problems, identified the remedies and put them into strategies and action plans – why is there so little progress? What is blocking the implementation?

My conclusion is that it is the attitude of the majority population which is the key obstacle. Prejudices against this minority are deep and widespread in Europe. Even politicians are heard promoting slander against this minority, not least in periods of elections. Social gaps and injustices are a consequence of antiziganism. This has to be a major aspect of all strategies and action plans.

What can be done to ensure to change the attitudes, to combat stereotyped prejudices against Roma and Sinti people?

One aspect is to make known the Roma-Sinti history and culture. In Sweden a White Paper was recently published about the treatment of Roma during the last century: enforced sterilisation, registration on ethnicity grounds, evictions, obstacles to schooling and employment, etcetera.

The knowledge about this dark history will now be widely disseminated and also part of the curricula in schools.

Furthermore, the government has appointed a commission to combat antiziganism in the society today. The nine members of this commission have already recognised that Sweden is not free from ugly racism against members of this minority – and have already received striking examples of every-day discrimination. It intends to take action against such incidents of every-day discrimination.

The media are certainly extremely important in this context. Media could be helpful in giving information of real situations but could also spread stereotyped images of minority individuals, for instance linking crimes to Roma. Proper self—regulation has turned out to be wanting in several countries in this regard.

Another important aspect relates to the law enforcement institutions. The 2008 evaluation of the OSCE action plan highlighted the work of the police in this field. It warned against racial profiling and abusive treatment of Roma-Sinti cases. Our experience is that it is particularly important that the policemen are well educated about minority rights. The Swedish commission has already had reason to react against ethnic registration and profiling approaches.

One key phrase in the OSCE action plan was “For Roma with Roma”. That approach is necessary if results are to be reached. Authorities must work together with Roma groups who know what ought to be done – and naturally dislike gadje lecturing by so-called Roma experts. There are nongovernmental organisations with Roma representatives which too often are ignored by the authorities.

Having just returned from a study visit to Romania I feel deeply sad about the continued misery among many Roma communities there but at the same time encouraged after having met some officials both locally and in government circles who are prepared to contribute to sustainable solutions – with creativity and resources.

Implementation must now be the key. Strategy papers and action plans must be turned into real changes and reforms. The 2008 evaluation report stated that many strategies are implemented “in an ad hoc, symbolic manner with little hope of long term sustainability”.

The time for symbolism should be over. Political will for genuine implementation must now be mobilised. This is an urgent matter of human rights. But also necessary in order to protect harmony in our societies.

We cannot allow antiziganism to continue.

[This text is based on a presentation at the OECE-ODIHR conference in Warsaw 30 September 2014]

Council of Europe as an instrument for Human Rights

The Council of Europe may be sidelined in world politics and seldom seen in the media, but it has one significant strength: governments on the European continent really want to be a member of this particular club. It is widely understood that this organisation is based on positive, democratic values which give a level of prestige to its members.

Perhaps the greatest contribution by this body to the struggle for democracy and human rights has been given while applications from States for membership have been scrutinised. Though the process is less thorough than the one for European Union (EU) accession, there is also, for Council of Europe membership, a need demonstrate a clear commitment to basic human rights standards. One effect of this approach is that Belarus under President Lukashenko has not been welcomed into the community.

While the EU has had problems in finding methods of monitoring whether its members actually live up to the pledges given in the accession process, the Council of Europe has a battery of instruments with that purpose. The Parliamentary Assembly (PACE) has a special monitoring committee doing such follow up. The Committee of Ministers (CM) can initiate special procedures to review the situation on human rights and respect for human rights in particular countries. This has happened in Azerbaijan and Armenia and in Georgia and Russia after the 2008 war.


In fact, monitoring the democratic and human rights credentials of Member States is a major part of what the Council of Europe is all about. Apart from the special procedures directed towards particular countries, there are standard processes that apply to all Member States, or at least all of which that have ratified the relevant treaties (those that have not done so are instead encouraged to ratify).

The Council of Europe Commissioner can investigate and address basic and structural human rights problems in the Member States wherever and whenever he or she so choses. The Committee for the Prevention of Torture (CPT) monitors prison conditions on the basis of its own in situ inspections and the European Commission against Racism and Intolerance (ECRI) monitors and reports on progress and problems falling within its mandate. Other mechanisms are set up to review implementation of the various Council of Europe human rights treaties.

In other words, the Member States are made subject to a fairly systematic and multifaceted scrutiny in relation to their human rights performance. Indeed, some governments do complain that they have difficulties to cope with the many delegations from the Council of Europe.

Such monitoring and verification activities build one of the pillars in the Council of Europe human rights program. The two other pillars are standard setting and assistance.


Apart from the landmark European Convention on Human Rights (ECHR) with its additional protocols, there are a great number of other Council of Europe treaties dealing with human rights matters. The Social Charter, also in a revised version, spells out minimum standards on economic and social rights and allows Member States gradually to ratify more of the provisions spelled out in the treaty.

Minority rights are defined in two major conventions. One is about the rights of national minorities and the other about regional and minority languages. Also these should be ratified by Member States to enter into force and be binding on those who have so decided. Special committees are set up to monitor implementation. The same approach is applied on more recent treaties dealing with human trafficking, corruption and money laundering.

The actual drafting of the treaties is in the hands of the intergovernmental structures of the Council. When it is decided that a certain issue should be addressed in a draft convention for possible adoption, this matter is delegated to a subcommittee of the CM composed of governmental experts, which report to the CM (normally consisting of Ambassadors, the Permanent Representatives, of the Member States in Strasbourg).

The European Convention is also part of the national law of each Member State, which certainly increases its impact and importance. The decisions of the Court, the case law, are to be seen as authoritative interpretations of the Convention and thereby also standard setting.

The idea is that the other ratified treaties should also be seen by the Member States as guiding the lawmaking and judicial processes.


Within the limits of its resources the Council of Europa has a fairly ambitious program seeking to assist Member States to build a culture of human rights. There are Council of Europe offices in several Member States, tasked with the promotion for implementation of agreed standards and programs.

The focus is largely on providing expertise as well as training for key office holders. There is an ambition to link the advisory services with conclusions and recommendations from the various treaty bodies and expert committees. There is certain cooperation with the EU in this field and some projects are partly funded by the EU.

An interesting addition to the assistance efforts are provided by the European Commission for Democracy through Law (Venice Commission) which is composed of legal and constitutional experts in the different countries (some non-European countries are also part of the Commission). One activity of the Commission is to review key law proposals and issue Opinions to guide national decision makers. No doubt, the Commission has largely, and positively, contributed to the development of Constitutions in a number of Member States, not least in the newer democracies.


The three pillars, standard setting, assistance and monitoring, go hand in hand and inter-relate closely. The work on new standards is oft en the result of experiences from assistance and monitoring work. The purpose of assistance is largely to encourage the implementation of the standards and the program is, in reality, often based on recommendations from those who do the monitoring. In that sense, there is an inner logic in the overall human rights program of the Council of Europe.

My experience is that much has been achieved through this program. The systematic and comprehensive approach has caused sustained positive changes. Values have changed. Still, I have the feeling that the impact could have been even greater. The problem is that the potential of the Council of Europe is underrated, that the human rights mechanisms therefore tend to be under-utilised. Linked to this is the fact that the Council is under-resourced.

There is a need for a deeper discussion about the future of the Council of Europe and how its potential could be made to further promote human rights in a continent which continues to face serious human rights problems.

Let me mention some problems which ought to be addressed in such a discussion.


The Council of Europe is of course not alone. Other international and intergovernmental bodies are involved in human rights issues in Europe. The most important ones are the Organization for Security and Cooperation in Europe (OSCE) and the various United Nations bodies with outreach in Europe, as well as the EU.

The basic idea behind the OSCE activities is conflict prevention rather than human rights – though the distinction is not always obvious. The mandate of its High Commissioner for National Minorities (HCNM) is to seek solutions to tensions in relation to the status of national minorities which tend to be about their rights.

The Office for Democratic Institutions and Human Rights (ODIHR) certainly deals with human rights problems – it has a program on election monitoring, does trial observations and promotes the rights of Roma people. Other relevant OSCE mechanisms are the special representatives on media freedom and on trafficking of human beings. The OSCE has members and programs also in Central Asia.

Also the UN has human rights-related programs. The United Nations Development Programme (UNDP) has a coordinating role in the UN “one house” approach and has offices in several European capitals. Among the special agencies the High Commissioner on Refugees (UNHCR) and UNICEF play a crucial role in setting standards and providing assistance. The High Commissioner for Human Rights is certainly highly relevant as are the treaty bodies monitoring the implementation of  the UN human rights treaties.

The standard setting, assistance and monitoring work of these structures plus the Council of Europe and the EU do complement one another. However, the coordination between them is a genuine problem. Attempts to prevent too much overlap and crossed wires have, thus far, not been sufficiently successful. There are in some cases tendencies of unproductive competition rather than mature coordination.


The coordination on human rights between the Council of Europe and the EU has not worked well in spite of declarations on “European values” which have been strikingly similar.

Instead of basing its human rights work on the already agreed European Convention on Human Rights the EU drafted and adopted a separate charter which added very little to what was already in the ECHR (in particular read in the context of the case law of the Court). The new substance in the charter could have been included in the ECHR through an additional protocol, if the will had been there.

Furthermore, the authors of the charter created some confusion by using the term “fundamental rights” instead of human rights – while not clarifying the difference between the two concepts.

While the roots of the EU reach back to agreements on trade and economics, the Council of Europe’s history goes back to values relating to democracy and human rights. However, with the widening of the mandate of the organisation that we now know as the EU, concerns about human rights, including social rights, were put on the agenda, not least through initiatives of the European Parliament. This should have increased the interest in coordination on both sides.

The Council of Europe has Member States in Europe outside the EU bloc, among them Russia Georgia, Armenia, Azerbaijan, Moldavia and Turkey – countries which have been high on the EU foreign affairs agenda. It is my impression that the EU has only partially used its channels to the Council of Europe for learning from the
knowledge and experience of that body. However, I think a positive change came with Catherine Ashton and Stefan Fule in Brussels and Torbjorn Jagland in Strasbourg.

It seems that coordination between the structures depends largely on the interest and goodwill of individual office-holders. The absence of effective coordination structures is surprising in view of the fact that all EU members are also members of the Council of Europe.

A discussion is ongoing about the possibility of the EU to ratify the ECHR. Of course, all EU Member States are parties to that treaty – what is under negotiation is whether the union structures should also be brought under the jurisdiction of the Strasbourg Court. This makes sense in view of the fact that that decisions are taken by the EU Council, Commission and also the Luxembourg Court which affect the human rights situation in the Member States. However, the negotiations are complicated and now seem to move slowly. One reason appears to be the position of the United Kingdom.


Representatives of the UK have taken the lead in the criticism against the Strasbourg Court. The issue which appears to have initiated the negative position was a ruling by the Court against the blanket policy in the UK of depriving every prisoner of the right to vote in national and local elections. The UK government has argued that the Strasbourg Court should not meddle into such issues. Furthermore, the competence of the judges in Strasbourg was questioned in the UK debate and it was even proposed
that the State should declare itself no longer a party to the ECHR.

Though these positions appear to be part of an “anti-Europe trend” in the country, they should be taken seriously. The Court itself should of course be open to improve its conduct on aspects raised in well-based criticism. However, the main problem is the generalised nature of the UK points with its undercurrent of rejecting the need for UK citizens to have the possibility, as a last resort, to appeal to Strasbourg.

It would not be surprising if some other Council of Europe Member States would draw the conclusion that they also want to opt out of the Strasbourg system. If so, the most advanced international judicial institution for human rights would start unravelling.

If you study the extent of implementation of Court rulings you will see that the UK is not the only State Party who delay or ignore acting upon the decisions. Other Member States are less noisy but one could detect an increasing resistance in other countries as well against the Court.

My view is that the Strasbourg Court has given an enormous contribution to the protection of human rights in Europe. It has made the ECHR a living instrument of great importance for the interpretation of norms which are part of the national legislation in all Member States.

It has reformed itself and increased its “productivity” without falling into the trap of superficial decisions. The time between submission and decision is still too long, though even here we notice progress.

Other human rights mechanisms of the Council have on occasion been criticised – by governments who have objected to reports. One target has been the European Commission of Racism and intolerance, which was attacked by the then Danish government after a critical report. Myself, I was – when still Commissioner – called an “idiot” by a Minister of the same government.

However, such responses have been very rare. One reason might be that the Council of Europe actors have generally been cautious and competent. This, however, does not necessarily mean that their recommendations have been acted upon.


I stated that the Council of Europe’s contribution to human rights protection is underrated. Though there are quite a number of human rights defenders as well as officials in the government administrations who genuinely appreciate the Council’s efforts, these are seldom reflected in the media or in political debates. This is partly due to the methodology of the Council: while reports sometimes create news, neither standard-setting nor assistance is seen as particularly interesting. My opinion, however, is that much of the activities for human rights are full of human drama which deserves a higher level of public interest.

I also said that the mechanisms of the Council are under-utilised. This may not be the case of the Strasbourg Court which in fact has been flooded with submissions. What I had in mind was the knowledge and experience which have developed in the various bodies in the Council. Governments and other organisations, including the EU, could benefit from a much more active consultation with these available resources.

Finally, I also took the liberty to stress that the Council is under-resourced financially. In fact, it is amazing that so much has been achieved in relation to the finances made available. The Council of Europe has had a zero-increase-budget for a decade now, which in reality means a gradual decrease of budgetary resources year-by-year.

This has led to a mismatch between the enormous task with which it is faced and the limited possibilities to meet the challenge. More could be done.That is why I hope there will be a more informed discussion on the Council of Europe and its work for Human Rights.

(The text is from a lecture at the Utrecht University in March which will soon be published by the Netherlands Institute of Human Rights (SIM) in its quarterly journal).

Surveillance in Georgia

Swedish Radio has reported on the role of foreign telecom companies in Georgia. I have come across related issues on surveillance activities when exploring the Georgian human rights situation. In a report published at the end of September I had a chapter on the surveillance activities which was developed during the previous government and which is now being discussed in the country. The text is below:

Up to the end of August 2013 the Ministry of Internal Affairs identified in its own premises and in different other locations approximately 24 000 video and audio tapes which were recorded without Court authorisation. The sheer number of the tapes indicated that illegal surveillance was a systematic practice in violation of Article 8 of the European Convention on Humna Rights.

A large amount of the recordings appeared to have been obtained for a political purpose. Among individuals targeted are politicians who were in opposition at the time, journalists and activists in civil society bodies. A number of videos showing intimate sexual situations were also found; the purpose of which appears to have been to be used as tools in black mailing.

The Deputy Minister of Internal Affairs in the new Government published one of these videos, obviously to harm a critical journalist who was depicted in that particular video. The Deputy Minister was dismissed and charged, but the case illustrated the danger of these recordings to the personal integrity of those targeted.

The Government set up a Special Commission to guide the authorities in the handling of these illegal recordings and monitor the implementation of its recommendations. As making such recordings must be seen as serious crimes there was a need to review the files for the purpose of preparing possible indictments of those responsible. However, another absolutely central concern was that the integrity and privacy of those who have been recorded were protected. The recordings had to be destroyed and strong measures taken to collect those recordings which may have come into private hands. The illegal videos recording private life situation have now been destroyed.[1] Steps have also been taken to ensure that possession of such material be criminalised.

The newly appointed Data Protection Inspector is member of the Commission and she will generally have an important role to represent the interest on the broader public in the face of privacy threats. It is important that the office of the Inspector get broad support and necessary resources.

All technical and physical surveillance activities need to be regulated. No surveillance activities directed against individuals should be decided or conducted by the prosecutor, MIA or other parts of the executive without proper involvement of the judiciary and based on law.

The continued presence of surveillance equipment in the premises of telecommunication operators, giving the MIA automatic access to all communications via the private providers, is another concern which must be addressed. The possibility of some access to inter-personal communications could be essential in the fight against organised crime and terrorism. However, the risk for misuse means that there is a need of legal regulations and democratic and judicial control over all activities in this domain.

[1] On September 5 the Special Commission destroyed 110 CDs containing in total of 144 episodes of hidden-camera footage of intimate life (total size: 181 hours and 32 minutes). Members of the media were invited to attend and witness the destruction of materials.

Persons with disabilities have right to political participation

Persons with disabilities, like many other marginalised groups, have historically been the object of exclusion from political participation. Unfortunately, ingrained prejudices are slow to change. When it comes to persons with disabilities, the fundamental principle of universal suffrage is still not fully applied in many countries today.
With the entry into force of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), it is enshrined in international law that it is not acceptable to deprive persons with disabilities of their fundamental right to vote regardless of the nature or degree of their disability. Article 29 of the CRPD spells out that States Parties should ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others.

The right to effectively and fully participate

The first element raised by Article 29 of the CRPD is the right of persons with disabilities to participate in political life like everyone else, by voting and standing for elections. All persons, including all persons with disabilities, have the same right to actively contribute to and be engaged in wider society, and should have the same opportunities to enjoy this right.

This is both a matter of equal individual rights and of a broader societal interest. As spelled out in the Council of Europe Disability Action Plan, our societies need to reflect the diversity of their citizens and benefit from their varied experience and knowledge. It is crucial to ensure that there is full equality in participation in elections and representation of all members of society in decision-making bodies for the reflection of the diversity of views and needs in national, regional and local legislation and policy development.

Furthermore, this participation should be full and effective, rejecting all forms of barriers and requiring openness by persons who have no disabilities to the participation of persons with disabilities. It calls on public and private actors and institutions to guarantee equal opportunities to all human beings to make productive contributions to the community.

Universal suffrage

Universal suffrage is a fundamental principle and people with disabilities may not be discriminated against in this respect.

The very purpose of the CRPD Convention is to promote, protect and ensure the full and equal enjoyment of the full range of human rights by all persons with disabilities on an equal basis with others, without distinction. It leaves no room for procedures in which judges or medical practitioners would assess the voting competence of a person; as we do not test that capability for someone without disabilities, this would amount to blatant discrimination.

A paramount example of CRPD application in this regard is the recommendation of the Committee of Ministers of the Council of Europe which affirms that persons with disabilities have the right to vote on the same basis as other citizens “whether they have physical, sensory, or intellectual impairments, mental health problems or chronic illnesses”. Furthermore, it asserts that persons with disabilities should not be deprived of this right “by any law limiting their legal capacity, by any judicial or other decision or by any other measure based on their disability, cognitive functioning or perceived capacity.”

Legal capacity and the right to vote

At the heart of the paradigm shift which the CRPD introduced, lies the right to legal capacity, i.e. the right to make one’s own decision and exercise one’s rights. Today, however, persons with intellectual and psychosocial disabilities continue to face barriers in this regard. Very often, their legal capacity is restricted or removed completely, meaning they are no longer entitled to make decisions about their own lives.

Persons with disabilities should be placed at the centre of decision-making processes, being regarded as subjects of their own lives, entitled to the full range of human rights on an equal basis with everyone else.

The aim of the CRPD is to promote the full inclusion and participation of all persons with disabilities in society, including persons with intellectual and psychosocial disabilities. When society deprives individuals of their rights to freely make their own choices and to represent themselves, it contradicts Convention standards. The CRPD places an obligation on governments to ensure that such assistance is provided if needed, including in exercising the right to vote. There is a huge difference between this approach and just depriving someone of their rights. This is the paradigm shift that the CRPD represents: it builds on the idea that we should go further than to just help persons with disabilities to adjust to existing conditions – our societies should seek to adapt to and accommodate everyone, including those with special needs, and including with respect to their right to vote.

The European Court of Human Rights ruled on such a case in 2010, Kiss v Hungary in which a man with psychosocial disabilities was denied the right to vote following the partial loss of his legal capacity The Court interpreted that the indiscriminate removal of voting rights based on a mental disability on account of partial guardianship was not compatible with the principle of universal suffrage enshrined in Article 3 of Protocol no 1 of the European Convention on Human Rights.

Despite this positive aspect of the judgment, the European Court missed the opportunity to go further to declare that any restriction or removal of legal capacity is no longer acceptable and not in accordance with the CRPD which today has been ratified by the absolute majority of EU Member States and by 37 out of the 47 member states of the Council of Europe.

The CRPD Committee has made it increasingly clear that any judicial or administrative decision which removes rights on the basis of disability should be eliminated as a matter of priority from national legislation and practices as demonstrated by its Concluding Observations on Spain:

“The Committee recommends that all relevant legislation be reviewed to ensure that all persons with disabilities, regardless of their impairment, legal status or place of residence, have the right to vote and participate in public life on an equal basis with others. The Committee requests the State party to amend article 3 of Organic Act 5/1985, which allows the denial of the right to vote based on individualized decisions taken by a judge. The amendment should ensure that all persons with disabilities have the right to vote. Furthermore, it is recommended that all persons with disabilities who are elected to a public position are provided with all required support, including personal assistants.”


The international human rights community has an important role to play to guide States to realise the full extent of their obligations under the CRPD. The old approach should be replaced by the United Nations Convention standards around the globe.
Some concrete steps which can be taken by States and the international human rights community are as follows:
(i) States should review and reform discriminatory legislation depriving persons with disabilities of their legal capacity.

(ii) The general principle of non-discrimination should form the basis of government policies geared to ensuring equal rights and opportunities for persons with disabilities through the removal of restrictions on legal capacity, the abolition of voting tests, the introduction of relevant legal provisions, specific forms of assistance, awareness raising and funding.

(iii) States must make their services more accessible to persons with disabilities to exercise their right to vote and be elected, providing, when necessary, reasonable accommodation to persons with disabilities, including the provision of information in plain language, Braille and sign language and the acceptance of a support person to assist or communicate the will of the individual concerned, if needed.

(iv) Universal and regional human rights mechanisms should base their decisions and practices on CRPD standards.

(v) Persons with disabilities and/or their representative organisations should be involved in the whole policy cycle: design, planning, implementation, monitoring and evaluation of policies that affect participation and inclusion of persons with disabilities within the community.