Human

Rights

andYou

A GUIDE FOR THE STATES 

OF THE FORMER SOVIET UNION

AND CENTRAL EUROPE

F REDERICK Q UINN
Cover Photo © 1997 PhotoDisc, Inc
Human

Rights

andYou

Basic United Nations, Organization for Security 

and Cooperation in Europe and Council of Europe 

Human Rights Documents

for

judges, prosecutors, police officials, 

attorneys, human rights organizations, 

citizens, and the media of the 

Newly Independent States

and Central Europe

compiled and edited by

Frederick Quinn

former Rule of Law Adviser

OSCE/ODIHR

Warsaw, Poland

Published by

OSCE/ODIHR

Warsaw, Poland

in cooperation with

the U.S. Department of State

and USAID
INTRODUCTION, ACKNOWLEDGMENTS 1

UNITED NATIONS 15

THE INTERNATIONAL BILL OF HUMAN RIGHTS 15

Universal Declaration of Human Rights, 1948 15

International Covenant on Economic, Social and Cultural Rights, 1966 17

International Covenant on Civil and Political Rights, 1966 19

Optional Protocol to the International Covenant on 

Civil and Political Rights, 1996 25

Second Optional Protocol to the International Covenant on Civil and 

Political Rights, aiming at the abolition of the death penalty, 1989 25

PREVENTION OF DISCRIMINATION 26

International Convention on the Elimination of All Forms of 

Racial Discrimination, 1965 26

Declaration on the Elimination of All Forms of Intolerance and of 

Discrimination Based on Religion or Belief, 1981 27

Declaration on the Rights of Persons Belonging to National or 

Ethnic, Religious and Linguistic Minorities, 1992 28

RIGHTS OF WOMEN 29

Convention on the Elimination of All Forms of Discrimination 

against Women, 1979 29

RIGHTS OF THE CHILD 33

Convention on the Rights of the Child, 1989 33

SUPPRESSION OF THE TRAFFIC IN PERSONS, 

CONVENTION AGAINST TORTURE 34

Convention for the Suppression of the Traffic in Persons and the 

Exploitation of the Prostitution of Others, 1949 34

Convention against Torture and Other Cruel, Inhuman or 

Degrading Treatment or Punishment, 1984 35

HUMAN RIGHTS IN THE ADMINISTRATION OF JUSTICE 36

Code of Conduct for Law Enforcement Officials, 1979 37

Basic Principles on the Use of Force and Firearms by Law 

Enforcement Officials, 1990 39

Basic Principles on the Independence of the Judiciary, 1985 41

Basic Principles on the Role of Lawyers, 1990 44

Guidelines on the Role of Prosecutors, 1990 48

Declaration of Basic Principles of Justice for Victims of Crime and 

Abuse of Power, 1985 51

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WAR CRIMES, CRIMES AGAINST HUMANITY, INCLUDING 

GENOCIDE; PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR 54

Convention on the Prevention and Punishment of the Crime of Genocide, 

1948 54

Geneva Convention Relative to the Protection of Civilian Persons in 

Time of War, 1949 55

GLOBAL HUMAN RIGHTS STANDARDS 58

World Conference on Human Rights, The Vienna Declaration and Program

of Action, June 1993 58

ORGANIZATION FOR SECURITY AND COOPERATION 

IN EUROPE (OSCE) 65

Final Act of the Conference on Security and Cooperation in Europe 

(Helsinki Final Act), 1975 65

Document of the Copenhagen Meeting of the Conference on the Human 

Dimension of the CSCE, 1990 66

Charter of Paris for a New Europe-CSCE Summit, 1990 82

Report of the CSCE Meeting of Experts on National Minorities, Geneva, 1991 85

Document of the Moscow Meeting of the Conference on the 

Human Dimension of the CSCE, 1991 89

Concluding Document of Helsinki-The Challenge of Change, the Fourth 

Follow-Up Meeting, 1992 101

COUNCIL OF EUROPE 111

Convention for the Protection of Human Rights and Fundamental Freedoms, 

1950, plus protocols 111

European Social Charter, 1961, plus protocols 117

Resolution of the Parliamentary Assembly on the Declaration on the Police,

1979 120

Recommendation of the Committee of Ministers to Member States Concerning 

Custody Pending Trial, 1980 121

Declaration on Freedom of Expression and Information,1982 123

Recommendation of the Committee of Ministers to Member States on the 

European Prison Rules, 1987 124

Recommendation of the Committee of Ministers to Member States Regarding

Conscientious Objection to Compulsory Military Service, 1987 127

European Convention for the Prevention of Torture and Inhuman or Degrading 

Treatment or Punishment, 1987 128

Declaration on Equality of Women and Men, 1988 128

Declaration and Plan of Action on combating racism, xenophobia, 

anti-semitism and intolerance, 1993 130

Recommendation of the Committee of Ministers to Member States on the 

Independence, Efficiency and Role of Judges, 1994 132

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Recommendation of the Parliamentary Assembly on achieving real progress 

in women's rights as from 1995 136

Framework Convention for the Protection of National Minorities, 1995 138

Declaration and Recommendation on the Protection of Journalists in

Situations of Conflict and Tension, 1996 143

THREE INTERACTING HUMAN RIGHTS SYSTEMS, UN , OSCE, 

COUNCIL OF EUROPE 145

CASE LAW OF THE EUROPEAN HUMAN RIGHTS COURT AND

COMMISSION 152

THE RELATIONSHIP BETWEEN THE EUROPEAN CONVENTION ON

HUMAN RIGHTS AND THE EUROPEAN SOCIAL CHARTER 201

INDEX OF CASES AND COMMISSION APPLICATIONS CITED 206

A TABLE OF SIGNATORIES TO INTERNATIONAL HUMAN RIGHTS

CONVENTIONS 210

ADDITIONAL CHART OF SIGNATURES AND RATIFICATIONS 212

PREPARING AND FILING A COMPLAINT 215

A RESOURCE GUIDE 224

Including governmental and non-governmental organizations, 

publications, and data bases

INTRODUCING HUMAN RIGHTS; A WEEKS’ SEMINAR CONTENTS 227

PUBLICATIONS OF SPECIAL INTEREST 228

ELECTRONIC FORMAT RESOURCE MATERIALS 230

USEFUL ADDRESSES AND RESOURCES 234

BIBLIOGRAPHY 244

SUBJECT INDEX 248

iv
INTRODUCTION

Swift change is taking place in the newly independent

states extending across Eurasia. Nowhere is this more evident than in

evolving human rights standards throughout the region. Onceauthoritarian states are gradually becoming pluralistic democracies, with

new constitutions and legal structures providing citizens’ rights and equal

protection under the law. Independent judiciaries are emerging, as are

procurators now responsible to the state rather than to a political party.

Independent lawyers, law firms, bar associations and law schools are

coming into being. Media are freer than ever before to critically report on

political and economic life.

The emergence of this new democratic infrastructure coincides with

the spread throughout the region of international human rights law and

norms on such issues as discrimination against minorities, racial prejudice,

the equality of women, the place of children before the law and what

constitutes free speech. These new international norms coincide as well

with a changing role for the judiciary, prosecutors, police officers and

attorneys—based on international standards for these professions. The

wider rule of law community in such states includes both non-governmental

organizations and the media, both of which can play a valuable advocacy

role in calling government’s attention to human rights violations and the

need to improve national laws and conditions in which justice is

administered.

A Citizens’ Guide to Human Rights Standards 

This work is for citizens of the newly independent states, asking the

question “What are international human rights standards?” “What do the

basic documents say?” It is intended as well for judges, prosecutors, police

officers, lawyers, non-governmental organizations, law students, and the

media who work professionally with these questions. The basic documents

are contained in this volume, as are guidelines for filing a human rights

petition with an international organization, realizing this is a step of last

resort and that local resolution of human rights complaints is the

preferred solution, if achievable.

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The International Human Rights Documents

Documents excerpted for this volume include basic United Nations,

Organization for Security and Cooperation in Europe (OSCE, formerly

CSCE) and Council of Europe texts from the 1940s to the 1990s.

Included are major sections of the most important texts, but students or

attorneys should consult the full documents, printed in the UN, OSCE

and CSCE and Council of Europe publications cited in the bibliography. I

have included the documents most frequently discussed in meetings with

judges, prosecutors, and Ministry of Justice officials in many newly

independent countries, and have bridged the excerpts with a brief

summary of the remaining documents’ contents. This is not intended as a

replacement for the documents themselves, but as a way of introducing

audiences to their subject matter..

Since the Helsinki Final Act (HFA) was signed in August 1975,

several other CSCE documents have been adopted, principally in

Copenhagen (1990), Paris (1990), Moscow (1991) and Helsinki (1992).

In addition, the Report of the CSCE Meeting of Experts on National

Minorities (Geneva, 1991) is excerpted in this volume. These CSCE

documents represent international politically binding commitments on

member states. Their content is often similar to obligations under

customary international and treaty law.

The Czechoslovak “Velvet Revolution,” Human Rights in Action

In 1977 the world witnessed a collision between international human

rights norms and authoritarian political practices when a group of

Czechoslovak human rights activists issued Charter 77. Many people

regard it as an impressive statement about human freedom, which it is, but

Charter 77 is also a closely reasoned legal analysis. Much of its initial

argument is based on the International Covenant on Civil and Political

Rights which entered into force on March 23, 1976, the International

Covenant on Economic, Social and Cultural Rights, which entered into

force on January 3, 1976, and the Helsinki Final Act, which became

politically binding as of the date of its adoption on August 1, 1975. “From

that date our citizens have the right, and our state the duty, to abide by”

the international principles, the Charter began.

An advance copy of the Charter was given me by a Czech friend,

Dalibor Plicka, an economist who had lost his university teaching job

after the 1968 invasion, and who dropped by our apartment in Prague, on

New Year’s Day 1977 with a carbon-smudged copy of the Charter. (Local

typewriters could make up to six copies of a document, each one

increasingly more blurred than the last.) “We are going to try and engage

our government in dialogue,” he said, “No one knows where it will lead.”

It led to swift, massive repression. Many of the Charter’s most active

voices, like Vaclav Havel, were jailed. The human rights community cited

2
international standards, the local government charged them with treason

and anti-state activity. During the difficult months ahead Havel and his

followers issued several additions to the Charter. What is most striking in

reading these documents two decades later is to see how closely-reasoned

they are in following international legal norms, in appealing to the rule 

of law as the basis for running a government. For example, the Charter

states:

“The human rights and freedoms underwritten by these

covenants constitute important assets of civilized life for

which many progressive movements have striven

throughout history and whose codification could greatly

contribute to the development of a humane society.

We accordingly welcome the Czechoslovak Socialist

Republic’s accession to those agreements.

Their publication, however, serves as an urgent

reminder of the extent to which basic human rights in

our country exist, regrettably, on paper only.”

The Charter contains an enumeration of provisions in the two

international Covenants on freedom of association, equal protection of

the law, privacy of family, home, and correspondence, rights to travel to

and from the country, prison conditions, and other human rights norms. 

It concludes:

“Responsibility for the maintenance of civic rights in

our country naturally devolves in the first place on the

political and state authorities. Yet, not only on them:

everyone bears his share of responsibility for the

conditions that prevail and accordingly also for the

observance of legally enshrined agreements, binding

upon all citizens as well as upon governments. It is this

sense of co-responsibility, our belief in the meaning of

voluntary citizens’ involvement and the general need to

give new and more effective expression that led us to

the idea of creating Charter 77, whose inception we

today publicly announce.”

Two decades later, many of the former Charter 77 dissidents are in

responsible positions in the Czech government, and the country faces its

share of human rights challenges, especially as they affect minorities like

the Roma people. This shows how hard a job it is to promote

international human rights norms and how their realization requires

constant vigilance and action.

3
Human Rights: Their Gradually Expanding Meaning 

The world of international Human Rights has changed greatly since the

time of Charter 77. The inescapable conclusion in studying the works

contained in this volume is that the meaning of human rights has

expanded progressively through recent decades, as has the subject matter

of the instruments. For example, the Copenhagen (1990) and Moscow

(1991) CSCE documents have elaborate sections on the independence of

the judiciary, and in 1985 the UN issued its Basic Principles on the

Independence of the Judiciary, followed by comparable standards for Law

Enforcement Officials (1979), Lawyers (1990) and Prosecutors (1990),

subjects dealt with less extensively in earlier instruments. If the earlier

period represented the definition decades, the present period may be

called the implementation decades, the time in which international

principles become part of, or replace, archaic domestic law and practice.

International Human Rights Laws and Standards, 

their Domestic Applicability 

Many constitutions of the newly independent states state international

laws, treaties, and accords have precedence over domestic laws and, if

there is a conflict with domestic law, international standards will prevail.

Typical of such provisions is Article 15.4 of the Constitution of the

Russian Federation, 1993:

The commonly recognized principles and norms of the

international law and international treaties of the

Russian Federation shall be a component part of its legal

system. If an international treaty of the Russian

Federation stipulates other rules than those stipulated

by law, the rules of the international treaty shall apply.

The legal status of these documents varies, but their moral importance

is never in question, nor is their place as internationally accepted human

rights norms, which most nations have accepted domestically as the

standards by which modern democratic states are governed. 

A way of picturing the interaction of UN, Council of Europe, and

CSCE documents is to visualize an overlay of three interacting colors,

each retaining its distinctiveness, while blending with the others. Taken

collectively, they represent an encompassing statement of international

human rights standards at this century’s end.

A leading European jurist, Antonio La Pergola, President of the

Venice Commission, former Chief Justice of the Italian Supreme Court

and a member of the European Court of Justice, has explained the origins

of the growing acceptance of international law over domestic law. “This

widespread tradition of internationalism in European constitutional law,”

4
5

he writes, “goes back to that Indian summer of peace between the world

wars.... It was only a transient season, true, before the aggressive mood of

nationalism set in to sow the seeds of conflict. Who could deny, however,

that the legalism of the esprit de Genève has with the help of hindsight

been revisited and improved by the new esprit de Strasbourg after World

War II?” La Pergola draws a parallel between today’s preponderance of

international law over domestic law in Europe and the newly independent

states of Eurasia with an earlier preponderance of national law over

municipal law, as seen in Article 55 of the French constitution, Article 25

of the German constitution, Article 9 of the Austrian constitution, Article

10 of the Italian constitution and Article 96 of the Spanish constitution.1

Various Human Rights Instruments, One Direction 

Covenants, protocols and conventions are legally binding on states that 

have ratified or acceded to them. Declarations, principles, guidelines,

recommendations and acts, like the CSCE accords, are not legally binding

in the way the European Convention of Human Rights is a binding

instrument. But they emerge from the common ground of post-World War

II Europe, in which the nation states reaffirm and deepen their

commitment to human dignity and democratic governance, rejecting

totalitarian and violent behavior in civic life. Most represent politically

binding commitments. 

Human rights is understandably a contentious subject. There is always

a gap between the ideal and the real. For many years, authoritarian

governments argued international human rights norms stopped at the

national frontier, and to advocate their further inland journey amounted

to “interference in the internal affairs of a sovereign state.” Some states

also argued “We are not ready for democracy as the west knows it yet.

Economic rights and internal security come first, human rights come later.”

Such arguments miss the point. Most modern states are party to

numerous international agreements relating directly to what happens

internally in a given country. Many constitutions of newly independent

states contain provisions similar to that of the Russian Federation’s

constitution (Article 15.4) that both acknowledges the domestic

applicability of international law and treaties and gives them precedence

over local law. The CSCE Moscow Meeting on the Human Dimension,

October 3, 1991, stated “the commitments undertaken in the field of the

human dimension...are matters of direct and legitimate concern to all

participating States and do not belong exclusively to the internal affairs of

the States concerned.” A year earlier, the 1990 Charter of Paris for a New

Europe CSCE document stated:

1 Antonio La Pergola, “The European Constitutional Heritage,” Introductory Statement, UniDem

Seminar, European Commission for Democracy through Law, Montpellier, France, November 22-23,

1996, Council of Europe Document CDL-UDM (96) 2, Strasbourg, France, November 7, 1996, p. 5.
We undertake to build, consolidate and strengthen

democracy as the only system of government of our

nations. In this endeavor, we will abide by the following:

Human rights and fundamental freedoms are the

birthright of all human beings, are inalienable and are

guaranteed by law. Their protection and promotion is

the first responsibility of government. Respect for them

is the first responsibility of government. Respect for

them is an essential safeguard against an over-mighty

State. Their observance and full exercise are the

foundations of freedom, justice and peace.

As for the argument that political and economic development takes

precedence over human rights, this is both legally and socially unsound.

Once countries have become parties to international conventions and

join international organizations, they have covenant obligations to

implement the new laws and norms to which they have subscribed.

Moreover, economic growth does not take place in a legal vacuum. In a

growing number of countries, sound laws and an independent judiciary

provide the platform on which economic growth takes place. If local

citizens and international business firms know their rights will be

respected, and an independent, fair, and honest mechanism to resolve

disputes exists, a climate attracting individual entrepreneurship and

corporate investment is created.

A Trend Toward Greater Protections

A unique feature of European constitutions is the prevalence of both

individual and social rights. Sometimes these are called first and second

generation rights. The first generation is traceable to the Enlightenment

and to French and American constitutional thought. Discussing the

growth of the idea of human rights in contemporary central and eastern

Europe the well-known Polish constitutionalist, Hanna Suchocka, has

written: “A characteristic feature of all post-communist countries is the

exceptionally strong emphasis they place in their constitutions on the

value of freedom and human dignity. More strongly stressed than in

Western constitutions is the need to protect human dignity. In fact,

human dignity has become the central point of reference when defining

the rights and freedoms of the individual.” This emphasis, no doubt, is a

reaction to the previous regimes disregard for the words of the 1990

Copenhagen Document about “the supreme value of the human

personality.”

On the question of minority rights, Ms. Suchocka, who dealt with

these questions as Prime Minister of Poland, has written “the problem of

national minorities and the protection of their rights has become a

6
7

European constitutional issue only fairly recently. The constitutions of

the nineteenth century did not really deal with that problem. The

European Convention also lacks proper regulations in the area of

minority rights. Reflecting the European tradition of protecting

individual rights, the European Convention in Article 14 merely alludes

to the principle of equality and bans discrimination. In this respect the

constitutions of the post-communist countries differ markedly from

traditional Western European ones.” 2

The European significance of both individual and social rights is

expressed in Judgment No. 25/81 of the Spanish Constitutional Court of

July 14, 1981 which states: “In the first place...there are subjective rights,

rights of individuals. At the same time, there are essential elements of the

objective legal order of the national community, when that community

takes shape as the framework of the common form of life which is human,

just and peaceful.” Social or community rights emerge from the political

ferment of nineteenth and twentieth century Europe, especially from

social democrat, socialist, and Christian democratic movements.

In recent years, a third generation of rights, such as rights to a clean

environment, have been added to many constitutions. The question

jurists face becomes: to what extent are these rights justiciable? It is a

given that human rights violations are actionable in court, and the

content of most of the documents in this volume is about human rights.

As for social rights, many constitutionalists see them as aspirational rights,

rights toward which the society aspires, and should progressively devote

its resources. They argue that, even if the rights cannot be fully enforced

at present, they describe what a democratic society aspires to, and serve as

a guide to legislators, members of the executive, and the judiciary in

understanding what the constitutional drafters, on behalf of the people,

believe are the legitimate components of a democratic society. 

The trend in international human rights law in recent decades has

been toward greater internal and international protection of individual

human rights, as well as protection of minority groups. Access to due

process and equal protection under the law, including remedies and

corrective action, are also increasingly a feature of modern human rights

instruments.

Admittedly, the enforcement of international human rights law and

norms is incomplete and at times inadequate. Remedies are hard to come

by. Corrective legislation and action take a long time to achieve. But the

growth of local and international human rights organizations, most of

them non-official, is unprecedented, as is media attention to human

rights. For example, many law schools encourage their students to assist

2 Hanna Suchocka, “Europe’s Constitutional Heritage and Social Differences,” UniDem Seminar,

European Commission for Democracy through Law, Montpellier, France, November 22-23, 1996,

Council of Europe Document CDL-UDM (96) 2, Strasbourg, France, November 14, 1996, p. 9, 12.
petitioners with human rights cases as part of the students’ training and in

an effort to build a modern legal culture in a given country. 

Thus an international political climate is emerging where the

protection of human rights has become a highly-visible, high priority in

the life of nations. While gains are uneven, no responsible political or

legal leader would advocate a return to despotism. The lack of resources is

real, as is the lack of training for many public officials called upon to

implement the new laws and standards. Still, the nature of the dialogue

has changed greatly in recent decades as the quest for human rights has

moved from the international to the local arena.

The OSCE Contribution

The CSCE process dates to the mid-1970s as a forum for East-West

contact during the Cold War. (The “Conference” became the

“Organization” for Security and Cooperation in Europe in December 1994

making a temporary body permanent and giving it greater stability and

effectiveness.) The watershed event in CSCE’s history was the August

1975 signing of the Helsinki Accords, opening eastern Europe to the free

flow of information, freer travel, and acceptance of international human

rights norms. In recent years, CSCE’s more than fifty participating states

were forced to rethink the organization’s role. The Warsaw office —

ODIHR, the Office of Democratic Institutions and Human Rights,— is

responsible for human dimension issues, which includes the protection of

human rights, free elections, protection of minorities, and support of Rule

of Law and democratic institutions. The origin of these activities is the

1975 Helsinki Accords, Basket I (European security issues) and Basket III

(humanitarian issues). Original negotiating drafts were placed in separate

baskets and the name was retained. Human rights standards were further

refined in CSCE meetings in Paris, Copenhagen, and Moscow and at a

second Helsinki Summit in 1992. At each meeting definitions of human

rights were expanded and accepted as binding commitments.

Qualifications diminished; increasingly clearer standards were expounded,

the map of Europe’s human rights future became clearly laid out.

OSCE works through an annual meeting of heads of state or foreign

ministers but day-to-day governance is through weekly meetings of the

Permanent Council, a Vienna-based group, and the Secretary General, a

senior diplomat with administrative responsibilities to run the organization.

ODIHR helps countries modernize judicial systems, trains

ombudspersons, and monitors elections. The Warsaw office also supports

OSCE field missions in Moldova, Latvia, Georgia, Tajikistan and

elsewhere. These OSCE missions are like foresters tracking smoldering

brush fires, registering the extent of political and ethnic discontent. Such

preventative diplomacy missions exert a stabilizing influence in places

like Estonia, Moldova, and Tajikistan, and transmit reports of problems,

8
such as conflict between factions over an election’s outcome or minority

unrest, to the Permanent Council in Vienna. 

Each year OSCE holds several public policy issue seminars, which are

organized by ODIHR on human dimension issues suggested by the

Permanent Council. The gatherings are usually held in Warsaw, often at the

old Warsaw Pact conference headquarters on the town’s edge. Recent topics

include work conditions for migrant workers, Roma (Gypsy) populations,

free media, minorities, and human rights standards in various countries.

Usually many non-governmental organizations attend such events.

NGOs, like the Quakers, Helsinki Watch, and Amnesty International,

keep human rights issues in the forefront of a country’s political agenda.

Probing questions by NGOs permit difficult topics to be raised and the

seminars are an important mechanism for interest groups to give human

rights issues a public hearing. In short, citizens’ groups in any given

country have wide possibilities to engage in an international human rights

dialogue. In addition to seminars, OSCE has a number of monitoring

capabilities which include the periodic high level Implementation and

Review Meetings allowing NGOs to table complaints. OSCE has broad

possibilities to work as a conflict resolution and monitoring mechanism. 

ODIHR in Warsaw

ODIHR’s office was established originally as the Office of Free Elections,

beginning work in April 1991. The office’s original mandate was to assist

new countries of central and eastern Europe in holding free elections. 

The early 1990s witnessed a postCommunist wave of parliamentary,

presidential, and local elections, plus constitutional and other referenda.

Countries asked basic questions about who should vote? How are

elections conducted? Votes counted? Elections disputes resolved? ODIHR

invited international experts from North America and Western Europe,

and increasingly from Eastern Europe, to training seminars for election

officials in the former Soviet Union and nearby countries. The office sent

election observers to the former Yugoslavia, Poland, Bulgaria, Albania,

Romania, Estonia, Georgia, Belarus and Lithuania. It reviewed draft

electoral laws and provided international commentary on the electoral

laws of many countries including Bulgaria, Albania, and countries of the

former Yugoslavia. In the West, election law was long-established. Most

basic questions of who can vote have been long-settled, but in the East, all

this was new: who can vote, what is acceptable political speech, who

controls the electoral process are central questions in the political life of

new nations.

The office’s elections role soon broadened in response to changing

political demands. The number of CSCE member states increased with

the breakup of the former Soviet Union and Yugoslavia. At the same

time, states realized free elections alone cannot guarantee democracy. A

9
country must both demonstrate respect for human rights and cultivate a

democratic infrastructure with independent legal institutions, free media,

and respect for international human rights norms.

A Broader Role

CSCE’s Council of Ministers, meeting in Prague in January 1992, expanded

the Office of Free Elections into the Office for Democratic Institutions

and Human Rights, making the office responsible for managing the “Human

Dimension Mechanism,” a means of addressing human rights concerns

within OSCE participating states. Each participating CSCE state furnishes

an official list of experts from which the office may draw for missions to

report on human rights problems. This is done by activating the Human

Dimension Mechanism, which requires the support of CSCE member

states. During 1992 the Mechanism was activated three times. First, by

the United Kingdom on behalf of the European Community in relation to

Serbia; second, by the same parties regarding Bosnia-Herzegovina, and

third, by Estonia for a mission on its own territory, protesting alleged

Russian Federation interference in its domestic affairs. 

The High Commissioner on National Minorities

In 1992 the CSCE created the office of the High Commissioner on

National Minorities, the HCNM, whose mandate, as defined in the

Helsinki Summit Declaration (23) states:

The High Commissioner will provide “early warning”

and, as appropriate, “early action” at the earliest possible

stage in regard to tensions involving national minority

issues which have not yet developed beyond an early

warning stage, but, in the judgment of the High

Commissioner, have the potential to develop into a

conflict within the CSCE area, affecting peace, stability

or relations between participating States, requiring the

attention of and action by the Council [of Ministers of

Foreign Affairs] or the CSCE [Committee of Senior

Officials].

The Commissioner is given considerable flexibility and independence

of action, being able to “work in confidence and...act independently of

all parties involved in the tensions.” The Copenhagen Concluding

Document of 1990 elaborated basic minority issue commitments in

sections IV.30–40, commitments expanded the following year in the

Moscow Concluding Document, the 1991 Meeting of Experts on

National Minorities in Geneva and the 1992 Helsinki Summit

Declaration, which details the High Commissioner’s mandate. (These

10
documents are contained in the OSCE section of this volume.)

The High Commissioner does not deal with individual human rights

complaints, nor does the office act in an advocacy role on behalf of

specific minority groups. Instead, the High Commissioner is an

independent interlocutor who seeks solutions acceptable to both a

minority population and the government of the state in which they live.

This office is given considerable flexibility. The High Commissioner can

become engaged with a problem at his or her own initiative, since

arguably all states have already given their consent to the HCNM’s

engagement by adopting the Helsinki ‘92 mandate. .

Since the office’s inception in 1993, the High Commissioner has

worked on resolving minority tensions in Albania (Greek minorities),

Estonia, (the former Yugoslav Republic of) Macedonia, Hungary,

Kazakhstan, Kyrgyzstan, Latvia, Moldova, Romania (Hungarian

minorities), Slovakia (Hungarian minorities), Hungary (Slovak

minority), and Ukraine. In several of these states, the problems of Russian

minorities were the focus of the HCNM’s attention. In addition to factfinding the High Commissioner promotes dialogue, confidence-building,

and cooperation between minority and majority populations, a long-term

process in many cases.

The Medias’ Role in Democratic Societies

No institution is more important to the development of democratic

societies than free media. Free media can help keep governments

transparent and honest, turning the cold light of public scrutiny on

nepotism, corruption, secret deals, contracts awarded to friends or

relatives of those in power, and other abuses of public trust at the local,

regional and national level. At the same time, journalists can often be

wrong, have incomplete or inaccurate information, represent their own

political, social, or economic interests and be influenced improperly by

powerful or affluent organizations and individuals representing special

interests.

In recent years international organizations have paid considerable

attention to media issues and their relationship to the modern democratic

state. Two especially valuable publications are Recommendations Adopted

by the Committee of Ministers of the Council of Europe in the MediaField, 

DH-MM (94) 2 and European Ministerial Conferences on Mass Media

Policy: Texts Adopted, DH-MM (95) 4, both published by the Council of

Europe’s Directorate of Human Rights, Strasbourg, France.

The subject matter of these resolutions includes “the Right to Reply–

the Position of the Individual in Relation to the Press” (74) 26, “On

Access to Information Held by Public Authorities” (81) 19, “Strategies to

Combat Smoking, Alcohol and Drug Dependence in Cooperation with

Opinion Makers and the Media” (86) 14, “Measures to Combat Piracy in

11
the Field of Copyright” (88) 2 and “Principles on the Distribution of

Videograms having a Violent, Brutal or Pornographic Content” (89) 7.

An important recommendation of the Committee of Ministers (96) 10 is

“On Guarantees of the Independence of Public Service Broadcasting,”

September 11, 1996. The resolution reaffirms “the vital role of public

service broadcasting as an essential factor of pluralistic communication

which is accessible to everyone at both national and regional levels,

through the provision of a basic comprehensive program service

comprising information, education, culture and entertainment.” The

recommendation outlines legal considerations in organizing and

managing public service broadcasting organizations.

A Word of Caution

A word of caution is in order. While the intention of this volume is to

assemble most of the major UN, CSCE and OSCE and Council of 

Europe human rights documents in a single work, their realization in a

given country is first of all a local matter. It is difficult to appeal to an

international agency, and even the most accessible, the European

Commission on Human Rights, will only consider a case after all domestic

possibilities for its resolution are exhausted. For example, less than ten

percent of cases filed with the Commission are considered admissible in

any given year; most applications are rejected because domestic laws were

found adequate to cover the complaint. 

Preparing a Human Rights Complaint for Filing

This volume contains broad guidelines for filing a human rights

complaint. Each country will have different procedures but all will require

careful preparation of a dispassionate, factual complaint and knowing

local laws and procedural codes. Apart from an individual complaint

before a governmental body, there are numerous steps a person or an

organization can take to bring their situation to public attention. These

can include class action suits, suits brought by a group of people against a

government or another party, and international media coverage, and

contact with friendly states sympathetic to human rights issues through

their embassies or foreign ministries. States may engage in “quiet

diplomacy” through unpublicized diplomatic contacts to resolve

complaints or, in extreme cases, resort to public statements about a

violation, or introduce sanctions, such as forbidding visas to the violating

countries’ officials for travel. These measures, however, are infrequent;

ultimately human rights violations must be solved in the local arena.

It is important to note that international human rights law applies first

to states and not to individuals. Individuals must first resort to domestic

law and then ascertain the country’s relationship with international

organizations such as the United Nations, Organization for Security and

12
13

Cooperation in Europe and Council of Europe, asking if the country is a

member of one or all of these organizations? Has it ratified their human

rights instruments? Were these ratified with reservations limiting their

applicability? Does the country have a constitutional article assuring the

applicability of international law and treaty obligations over domestic

law? Does the country’s foreign policy seek to bring the country into the

wider community of nations, with its attendant developmental aspects,

such as a greater attraction for foreign investment because there is a

stable rule of law climate? These are all factors to be weighed in pursuing

a human rights claim.

Acknowledgments 

The author acknowledges the assistance of David Bernstein, Robert Buergenthal,

Lech L. Garlicki, Luis López Guerra, Keith Henderson, Nancy Hewett, A. E. Dick

Howard, Heiner Klebes, Erika Schlager and Herman Schwartz in the preparation of

this volume. 

Ambassadors Audrey F. Glover and Gerard Stoudmann, ODIHR Directors, made

valuable contributions to defining this project.

The Organization for Security and Cooperation in Europe, Office of Democratic

Institutions and Human Rights in Warsaw, Poland, and the Venice Commission for

Democracy Through Law, Antonio La Pergola, President, provided some of the

materials cited in this volume. Pierre Henri Imbert, Director, and the staff of the

Council of Europe's Human Rights directorate provided other significant texts.

Isobelle Jacques of the Council of Europe and Anatoly Kobzev then of

OSCE/ODIHR provided access to important documents not otherwise easily

obtainable.

The assistance of Anastasia Walker as translator is gratefully acknowledged. 

The quotation from Franz Kafka's The Trial, used in this work, originally appeared

in Hurst Hannum's Guide to International Human Rights Practice, second edition,

University of Pennsylvania Press, Philadelphia, 1992.

I am grateful to the Council of Europe, Directorate of Human Rights, for

permission to quote from its Short Guide to the European Convention on Human

Rights and Law and practice of the European Convention on Human Rights and the

European Social Charter. 

Frederick Quinn
Someone must have been telling lies

about Joseph K., for without having done anything wrong

he was arrested one fine morning....“But what for?” he

added. “We are not authorized to tell you that....

Proceedings have been instituted against you, and you will

be informed of everything in due course. I am exceeding my

instructions in speaking freely to you like this.”...Who

could these men be? What were they talking about? What

authority could they represent? K. lived in a country with

a legal constitution, there was universal peace, all the laws

were in force; who dared to seize him in his own dwelling?

...“What are your papers to us?”

cried the tall warder....“We are humble subordinates who

can scarcely find our way through a legal document and

have nothing to do with your case except to stand guard

over you for ten hours a day and draw our pay for it.

That’s all we are, but we’re quite capable of grasping 

the fact that the high authorities we serve, before they 

would order such an arrest as this, must be quite well

informed about the reasons for the arrest and the person of

the prisoner. There can be no mistake about that. Our 

officials, so far as I know them, and I know only the

lowest grades among them, never go hunting for crime in the

populace, but, as the Law decrees, are drawn toward the

guilty and must then send out us warders. That is the Law. 

How could there be a mistake in that?”

Franz Kafka, The Trial
UNITED NATIONS

Out of the wreckage of World War II, the world’s nations were determined

to create an international system of laws and treaties to prevent the

violent excesses of the recent past. Their primary instrument was the

United Nations. Human rights provisions in the United Nations Charter

of 1946 were not extensive, but laid the groundwork for a subsequent

broadening and deepening of such standards. Article 1(3) of the Charter 

of the United Nations states one of the organization’s purposes is:

To achieve international cooperation in solving international

problems of an economic, social, cultural, or humanitarian

character, and in promoting and encouraging respect for

human rights and for fundamental freedoms for all without

distinction as to race, sex, language, or religion.

Member state obligations are contained in Article 55 and 56 of the

Charter, particularly to promote human rights “without distinction as to

race, sex, language, or religion.” The Charter thus made human rights an

international concern, rather than a strictly domestic one, and the

subsequent half-century of human rights law’s evolution and state and

international practice has been the history of the internationalization of

these concerns. Gradually the United Nations was provided with legal

authority to codify these rights, including the rights of women, children,

and minorities. By the century’s end the international statement of rights

was far more comprehensive and refined than in the UN’s first decade.

Human rights law and practice became as encompassing as other

international law categories like civil aviation, law of the sea, intellectual

property, or trade and commerce. Also, many experts argue that the

Charter has become, over time, a part of customary international law. 

THE INTERNATIONAL BILL OF HUMAN RIGHTS

Universal Declaration of Human Rights, 1948

After the Charter, the first comprehensive human rights instrument

issued by the United Nations was The Universal Declaration of Human

Rights, adopted and proclaimed by General Assembly resolution 217 A

(III) of December 10, 1948. This document, together with the UN

Charter, two International Covenants on Human Rights and the

Optional Protocol to the Covenant on Civil and Political Rights, are

known as The International Bill of Human Rights. The Universal

Declaration is not a treaty, and, therefore, did not have by itself, binding

force. Thus, the 1966 Covenants were necessary to give the rights

15
contained in the Universal Declaration of Human Rights force of law.

The two Covenants and Optional Protocol were adopted by the General

Assembly in 1966 and entered into force in 1976.

The Universal Declaration is one of the great documents of human

liberty, holding place along side the Magna Carta, France’s Declaration of

the Rights of Man and the Citizen, and America’s Declaration of

Independence. Its preamble and thirty articles enumerate both civil and

political rights, and economic, social, and cultural rights. The Preamble

frames the document, noting “disregard and contempt for human rights

have resulted in barbarous acts which have outraged the conscience of

mankind, and the advent of a world in which human beings shall enjoy

freedom of speech and belief and freedom from fear and want has been

proclaimed the highest aspiration of the common people.”

It is essential if humanity “is not to be compelled to have recourse, as a

last resort, to rebellion against tyranny and oppression, that human rights

should be protected by the rule of law.” 

Rights are divided into human rights and social rights, a feature that will

be adopted in many subsequent international documents. In the first

category of rights are the right to life, liberty, and security of person; the

prohibition of slavery, torture, and cruel, inhuman or degrading

treatment, and such due process and equal protection provisions as the

right not to be subject to arbitrary arrest, detention, or forced exile; rights

to a fair criminal or civil trial, a presumption of innocence until proven

guilty, and strictures against the application of ex post facto laws and

penalties. Privacy and ownership of property rights are maintained, as are

free speech, religion, assembly and freedom of movement. 

Of particular note as a due process provision is Article 8 “Everyone has the

right to an effective remedy by the competent national tribunals for acts

violating the fundamental rights granted him by the constitution or by law.”

Freedom of movement is assured in Article 13 “1. Everyone has the right

to freedom of movement and residence within the borders of each State.

2. Everyone has the right to leave any country, including his own, and to

return to his country.”

Freedom of religion is assured in Article 18 “Everyone has the right to

freedom of thought, conscience and religion; this right includes freedom

to change his religion or belief, and freedom, either alone or in

community with others and in public or private, to manifest his religion

or belief in teaching, practice, worship and observance.”

16
Freedom of expression is assured in Article 19 “Everyone has the right to

freedom of opinion and expression; this right includes freedom to hold

opinions without interference and to seek, receive and impart information

and ideas through any media and regardless of frontiers.”

Citizen participation in government is laid out in Article 21, allowing a

person “to take part in the government of his country directly or through

freely chosen representatives.” Free and fair elections with universal

suffrage and secret balloting are a means to express “the will of the people”

which is “the basis of the authority of government.” (Article 21.3)

Articles 22-29 enumerate economic, social and cultural rights, including

social security “in accordance with the...resources of each State” 

(Article 22), the right to work, a free choice of employment, a reasonable

limitation of working hours, a standard of living “adequate for the health

and well-being of himself and of his family,” (Article 25) education,

participation in cultural life. And “Everyone is entitled to a social and

international order in which the rights and freedoms set forth in this

Declaration can be fully realized.” (Article 28) As noted above, the

Universal Declaration of Human Rights is not a treaty, but a declaration,

and does not have, by itself, binding force. Therefore, the 1996

Covenants were necessary, to give rights in the UDHR force of law.

International Covenant on Economic, Social and

Cultural Rights, 1966

This document, General Assembly resolution 2200 A (XXI) of December 16, 1966,

entered into force on January 3, 1976 after ratification.

The list of economic, social, and cultural rights in this International

Covenant is longer and more detailed than in the earlier Universal

Declaration. Steps to realize many of these rights are enumerated, thus

moving considerably beyond the earlier document’s provisions. 

Among the rights recognized: the right to work, to the enjoyment of just

and favorable work conditions, including fair wages “without distinction

of any kind, in particular women being guaranteed conditions of work not

inferior to those enjoyed by men, with equal pay for equal work.” (Article

7 (a)(i))

To organize and join trade unions. This includes “The right of trade

unions to establish national federations or confederations and the right of

the latter to form or join international trade-union organizations.” (Article

8.1.(b))

17
The right to strike is affirmed “provided that it is exercised in conformity

with the laws of the particular country.” (Article 8.1 (d))

A comprehensive set of rights of families, women, and children is

contained in Article 10:

1. The widest possible protection and assistance should be accorded to

the family, which is the natural and fundamental group unit of society,

particularly for its establishment and while it is responsible for the care

and education of dependent children. Marriage must be entered into

with the free consent of the intending spouses.

2. Special protection should be accorded to mothers during a reasonable

period before and after childbirth. During such period working

mothers should be accorded paid leave or leave with adequate social

security benefits.

3. Special measures of protection and assistance should be taken on

behalf of all children and young persons without any discrimination for

reasons of parentage or other conditions. Children and young persons

should be protected from economic and social exploitation. Their

employment in work harmful to their morals or health or dangerous to

life or likely to hamper their normal development should be

punishable by law. States should also set age limits below which the

paid employment of child labor should be prohibited and punishable

by law.

Article 11 calls for “the right of everyone to an adequate standard of living

for himself and his family, including adequate food, clothing and housing,

and to the continuous improvement of living conditions.” 

Article 12.1 recognizes “the right of everyone to the enjoyment of the

highest attainable standard of physical and mental health.”

Article 13 is about “the right of everyone to education,” including primary

education “compulsory and available free to all.” (2.a) Secondary

education “shall be made generally available and accessible to all by every

appropriate means, and in particular by the progressive introduction of

free education.” (2.b) 

Article 15 recognizes the right of everyone to participate in cultural life

and “to benefit from the protection of the moral and material interests

resulting from any scientific, literary or artistic production of which he is

the author.” (1.c) 

18
19

The Gradual Applicability of Economic, Social and Cultural Rights

A novel provision of this Covenant is that, unlike the Civil and 

Political Covenant, its applicability is gradual. Each State Party agrees 

“to take steps, individually and through international assistance and

cooperation, especially economic and technical, to the maximum of its

available resources, with a view to achieving progressively the full

realization of the rights recognized in the present Covenant.” (Article 2 (1))

However this gradualist approach does not allow indefinite postponement

of the Covenant’s implementation. An interpretation of the article by a

UN committee states “the full realization of the relevant rights may be

achieved progressively” but “steps towards that goal must be taken within

a reasonably short time after the Covenant’s entry into force for the States

concerned.” 3

International Covenant on Civil and Political

Rights, 1966

This instrument was ratified by General Assembly resolution 2200 A (XXI) of

December 16, 1966. It entered into force on March 23, 1976. 

The enumeration of civil and political rights contained in this Covenant

is more elaborate than in the earlier Universal Declaration. For example,

states may not deny membership of ethnic, religious or linguistic

minorities, “in community with other members of their group, to enjoy

their own culture, to profess and practice their own religion, or to use

their own language.” (Article 27) This article is the genesis of the United

Nations’ 1992 Declaration on the Rights of Persons Belonging to

National or Ethnic Religious and Linguistic Minorities.

Article 1 states “1. All peoples have the right of self-determination. 

By virtue of that right they freely determine their political status and

freely pursue their economic, social and cultural development. 2. All

people may, for their own ends, freely dispose of their natural wealth and

resources without prejudice to any obligations arising out of international

economic cooperation, based upon the principle of mutual benefit, and

international law. In no case may a people be deprived of its own means 

of subsistence.”

In addition to being a statement of rights, the Covenant instructs member

states to undertake “the necessary steps, in accordance with its

constitutional processes and with the provisions of the present Covenant,

3 Report of the Committee on Economic, Social and Cultural Rights, Fifth Session, UN Doc.

E/199/23. E/C.12/1990/8 at 83 (1991). Quoted in Thomas Buergenthal, International Human 

Rights in a Nutshell, second edition, West Publishing Co., St. Paul, Minn., 1995, p. 55.
to adopt such legislative or other measures as may be necessary to give

effect to the rights recognized in the present Covenant.”(Article 2.2) 

Each States Party undertakes “To ensure that any person whose rights or

freedoms as herein recognized are violated shall have an effective remedy,

notwithstanding that the violation has been committed by persons acting

in an official capacity.” (Article 2.3 (a))

Article 3 states “The States Parties to the present Covenant undertake to

ensure the equal right of men and women to the enjoyment of all civil

and political rights set forth in the present Covenant.”

Although Article 4 deals with public emergencies, Article 5 states “Nothing

in the present Covenant may be interpreted as implying for any State, group

or person any right to engage in any activity or perform any act aimed at the

destruction of any of the rights and freedoms recognized herein or at their

limitation to a greater extent than is provided for in the present Covenant.” 

Discussion of the death penalty is contained in Article 6: 

1. Every human being has the inherent right to life. This right shall be

protected by law. No one shall be arbitrarily deprived of his life.

2. In countries which have not abolished the death penalty, sentence of

death may be imposed only for the most serious crimes in accordance

with the law in force at the time of the commission of the crime and

not contrary to the provisions of the present Covenant and to the

Convention on the Prevention and Punishment of the Crime of

Genocide. This penalty can only be carried out pursuant to a final

judgment rendered by a competent court.

3. When deprivation of life constitutes the crime of genocide, it is

understood that nothing in this article shall authorize any State Party

to the present Covenant to derogate in any way from the obligation

assumed under the provisions of the Convention on the Prevention

and Punishment of the Crime of Genocide.

4. Anyone sentenced to death shall have the right to seek pardon or

commutation of the sentence. Amnesty, pardon or commutation 

of the sentence of death may be granted in all cases.

5. Sentence of death shall not be imposed for crimes committed by

persons below eighteen years of age and shall not be carried out on

pregnant women.

20
6. Nothing in this article shall be invoked to delay or to prevent the

abolition of capital punishment by any State Party to the present

Covenant.

Personal liberty and due process provisions are extensive. Article 9.1 states

“Everyone has the right to liberty and security of person. No one shall be

subjected to arbitrary arrest or detention. No one shall be deprived of his

liberty except on such grounds and in accordance with such procedures as

are established by law.”

At the time of arrest the person “shall be informed...of the reasons for his

arrest and shall be promptly informed of any charges against him.” (Article 9.2)

The person “shall be brought promptly before a judge or other officer

authorized by law to exercise judicial power and shall be entitled to trial

within a reasonable time or to release. It shall not be the general rule that

persons awaiting trial shall be detained in custody, but release may be

subject to guarantees to appear for trial.” (Article 9.3)

Additionally, anyone “deprived of his liberty by arrest or detention shall

be entitled to take proceedings before a court, in order that that court may

decide without delay on the lawfulness of his detention and order his

release if the detention is not lawful.” (Article 9.4)

Further “Anyone who has been the victim of unlawful arrest or detention

shall have an enforceable right to compensation.” (Article 9.5)

Finally “All persons deprived of their liberty shall be treated with humanity

and with respect for the inherent dignity of the human person.” (Article 10.1)

“Accused persons should be segregated from convicted persons and should

be subject to separate treatment appropriate to their status as unconvicted

persons. (Article 10.2 (a)) Accused juveniles should be separated from

adults and their cases be resolved as speedily as possible.” (Article 10.2 (b))

The Civil and Political Covenant extends beyond the Universal

declaration in guaranteeing that “No one shall be imprisoned merely on

the ground of inability to fulfill a contractual obligation.” (Article 11)

Article 14 concerns judicial proceedings and due process. “All persons

shall be equal before the courts and tribunals. In the determination of any

criminal charge against him, or of his rights and obligations in a suit at

law, everyone shall be entitled to a fair and public hearing by a competent,

independent and impartial tribunal established by law.”

21
An important provision is “Everyone charged with a criminal offense shall

have the right to be presumed innocent until proved guilty according to

law.” (Article 14.2)

Additional guarantees include “everyone shall be entitled to the following

minimum guarantees, in full equality: (a) “To be informed promptly and in

detail in a language which he understands of the nature and cause of the

charge against him,” (b) “To have adequate time and facilities for the

preparation of his defense and to communicate with counsel of his own

choosing,” (c ) “To be tried without undue delay,” (d) “To be tried in his

presence, and to defend himself in person or through legal assistance of his

own choosing; to be informed, if he does not have legal assistance, of this

right; and to have legal assistance assigned to him, in any case where the

interests of justice so require, and without payment by him in any case if

he does not have sufficient means to pay for it,” (e) “To examine, or have

examined, the witnesses against him and to obtain the attendance and

examination of witnesses on his behalf under the same conditions as

witnesses against him,” (f) “To have the free assistance of an interpreter if he

cannot understand or speak the language used in court,” and (g) “Not to be

compelled to testify against himself or to confess guilt.” (Article 14.3 (a-g))

Two additional provisions provide compensation for those unjustly

convicted of a criminal offense, when that conviction is reversed “or he

has been pardoned on the ground that a new or newly discovered fact

shows conclusively there has been a miscarriage of justice.” (Article 14.6)

And “No one shall be liable to be tried or punished again for an offense for

which he has already been finally convicted or acquitted in accordance

with the law and penal procedure of each country.” (Article 14.7)

Article 15.1 prohibits ex post facto criminal charges. “Nor shall a heavier

penalty be imposed than the one that was applicable at the time when the

criminal offense was committed.” 

Article 16 states “Everyone shall have the right to recognition everywhere

as a person before the law.”

Article 17 states “1. No one shall be subjected to arbitrary or unlawful

interference with his privacy, family, home or correspondence, nor to

unlawful attacks on his honor and reputation. 2. Everyone has the right to

the protection of the law against such interference or attacks.”

Article 18 states “1. Everyone shall have the right to freedom of thought,

conscience and religion. This right shall include freedom to have or to

adopt a religion or belief of his choice, and freedom, either individually or

22
in community with others and in public or private, to manifest his religion

or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to

have or to adopt a religion or belief of his choice.

3. Freedom to manifest one’s religion or beliefs may be subject only to

such limitations as are prescribed by law and are necessary to protect

public safety, order, health, or morals or the fundamental rights and

freedoms of others.

4. The States Parties to the present Covenant undertake to have respect

for the liberty of parents and, when applicable, legal guardians to

ensure the religious and moral education of their children in

conformity with their own convictions.”

Article 19 states “1. Everyone shall have the right to hold opinions

without interference.

2. Everyone shall have the right to freedom of expression; this right shall

include freedom to seek, receive and impart information and ideas of

all kinds, regardless of frontiers, either orally, in writing or in print, in

the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this Article

carries with it special duties and responsibilities. It may therefore be

subject to certain restrictions, but these shall only be such as are

provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b)For the protection of national security or of public order (ordre

public), or of public health or morals.” 

Article 20 states “1. Any propaganda for war shall be prohibited by law. 

2. Any advocacy of national, racial or religious hatred that constitutes

incitement to discrimination, hostility or violence shall be prohibited by

law.”

Article 21 states “The right of peaceful assembly shall be recognized. 

No restrictions may be placed on the exercise of this right other than

those imposed in conformity with the law and which are necessary in a

democratic society in the interests of national security or public safety,

public order (ordre public), the protection of public health or morals or 

the protection of the rights and freedoms of others.”

23
Article 22 states “1. Everyone shall have the right to free association with

others, including the right to form and join trade unions for the

protection of his interests. 2. No restrictions may be placed on the exercise

of this right other than those which are prescribed by law and which are

necessary in a democratic society in the interests of national security or

public safety, public order (ordre public), the protection of public health or

morals or the protection of the rights and freedoms of others. This Article

shall not prevent the imposition of lawful restrictions on members of the

armed forces and of the police in their exercise of this right.”

Article 23 states “1. The family is the natural and fundamental group unit

of society and is entitled to protection by society and the State. 2. The

rights of men and women of marriageable age to marry and to found a

family shall be recognized. 3. No marriage shall be entered into without

the free and full consent of the intending spouses. 4. States Parties to the

present Covenant shall take appropriate steps to ensure equality of rights

and responsibilities of spouses as to marriage, during marriage and at its

dissolution. In the case of dissolution, provision shall be made for the

necessary protection of any children.”

Article 24 states “1. Every child shall have, without any discrimination as

to race, color, sex, language, religion, national or social origin, property or

birth, the right to such measures of protection as are required by his status

as a minor, on the part of his family, society and the State. 2. Every child

shall be registered immediately after birth and shall have a name. 3. Every

child has the right to acquire a nationality.”

Article 25 allows every citizen “(a) To take part in the conduct of public

affairs, directly or through freely chosen representatives; (b) To vote and

to be elected at genuine periodic elections which shall be by universal and

equal suffrage and shall be held by secret ballot, guaranteeing the free

expression of the will of the electors; (c ) To have access, on general terms

of equality, to public service in his country.”

Article 26 states “All persons are equal before the law and are entitled

without any discrimination to the equal protection of the law. In this

respect, the law shall prohibit any discrimination and guarantee to all

persons equal and effective protection against discrimination on any

ground such as race, color, sex, language, religion, political or other

opinion, national or social origin, property, birth or other status.”

Article 27 states “In those States in which ethnic, religious or linguistic

minorities exist, persons belonging to such minorities shall not be denied

the right, in community with the other members of their group, to enjoy

24
their own culture, to profess and practice their own religion, or to use

their own language.” 

A novel feature of the Civil and Political Covenant is establishment 

of an 18-member Human Rights Committee with an active role in State

Party compliance with treaty obligations. There is an increasingly detailed

reporting system, the possibility of using an inter-state complaint

mechanism, and—with adoption of the Optional Protocol—a right of

individual petition to the Committee. Committee reports contain

elaborate guidelines, the purpose of which is to spotlight potential human

rights violations by States. Eventually serious compliance problems work

their way before the UN General Assembly through the Committee’s

Annual Report, which also attracts international media attention as well.

Optional Protocol to the International Covenant on

Civil and Political Rights, 1966

Although the Optional Protocol was passed by General Assembly resolution 2200 A

(XXI) of December 16, 1966, it did not enter into force until it secured the requisite

number of ratification signatures by member states, making the effective date March 23,

1976.

The Protocol’s key provision is State Parties “recognize the competence of

the Committee to receive and consider communications from individuals

subject to its jurisdiction who claim to be victims of a violation by that

State Party of any of the rights set forth in the Covenant.” (Article 1)

Article 2 states “individuals who claim that any of their rights enumerated

in the Covenant have been violated and who have exhausted all available

domestic remedies may submit a written communication to the Committee

for consideration.” 

Second Optional Protocol to the International

Covenant on Civil and Political Rights, aiming at

the abolition of the death penalty,1989

This instrument was adopted by General Assembly resolution 44/128 of December 15

1989. Its purpose is abolition of the death penalty; the main provisions are in Article 1.

“1. No one within the jurisdiction of a State Party to the present Protocol

shall be executed.” And “2. Each State Party shall take all necessary

measures to abolish the death penalty within its jurisdiction.”

25
PREVENTION OF DISCRIMINATION

International Convention on the Elimination of All

Forms of Racial Discrimination, 1965

Ratified by General Assembly Resolution 2106 A (XX), December 21, 1965; 

entered into force January 4, 1969

Racial discrimination is defined as “any distinction, exclusion, restriction or

preference based on race, color, descent, or national or ethnic origin which

has the purpose or effect of nullifying or impairing the recognition, enjoyment

or exercise, on an equal footing, of human rights and fundamental freedoms

in the political, economic, social, cultural or any other field of public life.”

(Article 1) This definition has been interpreted by the International Court

of Justice as being an authoritative definition of the UN Charter’s nondiscrimination clause.

State Parties agree to “undertake to pursue by all appropriate means and

without delay a policy of eliminating racial discrimination in all its

forms.” (Article 2.1) 

States “Shall declare an offense punishable by law all dissemination of ideas

based on racial superiority or hatred, incitement to racial discrimination, as

well as all acts of violence or incitement to such acts against any race or group

of persons of another color or ethnic origin, and also the provision of any

assistance to racist activities, including the financing thereof.” (Article 4 (a))

Everyone “without distinction as to race, color, or national or ethnic

origin” (Article 5) is entitled (a) “to equality before the law,” including

“equal treatment before the tribunals and all organs administering justice”

plus the right (b) “to security of person and protection by the State

against violence or bodily harm whether inflicted by government officials

or by any individual group or institution.” Political rights including

voting, standing for election to public office, taking part in government

(c) “as well as in the conduct of public affairs at any level and to have

equal access to public service.” 

Other civil rights, more extensive than those contained in the Universal

Declaration and the two Covenants, are enumerated in (d):

i. The right to freedom of movement and residence within the

border of the State;

ii. The right to leave any country, including one’s own, and to return

to one’s country;

iii. The right to nationality;

26
iv. The right to marriage and choice of spouse;

v. The right to own property alone as well as in association with others;

vi. The right to inherit;

vii. The right to freedom of thought, conscience and religion;

viii.The right to freedom of opinion and expression;

ix. The right to freedom of peaceful assembly and association;

Economic, social and cultural rights are enumerated in (e):

i. The rights to work, to free choice of employment, to just and

favorable conditions of work, to protection against unemployment,

to equal pay for equal work, to just and favorable remuneration;

ii. The right to form and join trade unions;

iii. The right to housing;

iv. The right to public health, medical care, social security and social

services;

v. The right to education and training;

vi. The right to equal participation in cultural activities;

(f) The right of access to any place or service intended for use by the general

public, such as transport, hotels, restaurants, cafés, theatres and parks.

Additionally, Article 6 calls for “effective protection and remedies,

through the competent tribunals and other State institutions, against any

acts of racial discrimination.”

Article 8 creates a Committee on the Elimination of Racial Discrimination

with reporting and dispute resolution mechanisms. 

Declaration on the Elimination of All Forms of

Intolerance and of Discrimination Based on

Religion or Belief, 1981

General Assembly resolution 36/55 of November 25, 1981

Article 1 states “Everyone shall have the right to freedom of thought,

conscience and religion. This right shall include freedom to have a

religion or whatever belief of his choice, and freedom, either individually

or in community with others and in public or private, to manifest his

religion or belief in worship, observance, practice and teaching.”

Intolerance and discrimination based on religion or belief means “any

distinction, exclusion, restriction or preference based on religion or belief

and having as its purpose or as its effect nullification or impairment of the

27
recognition, enjoyment or exercise of human rights and fundamental

freedoms on an equal basis.” (Article 2.2)

States are enjoined to positively “take effective measures to prevent and

eliminate discrimination on the grounds of religion or belief”(Article 4.1)

and “make all efforts to enact or rescind legislation where necessary to

prohibit any such discrimination.” (Article 4.2)

A detailed enumeration of freedoms is contained in Article 6, including

the right:

(a). To worship or assemble in connection with a religion or belief, and

to establish and maintain places for these purposes;

(b). To establish and maintain appropriate charitable or humanitarian

institutions;

(c). To make, acquire and use to an adequate extent the necessary articles

and materials related to the rites or customs of a religion or belief;

(d). To write, issue and disseminate relevant publications in these areas;

(e). To teach a religion or belief in places suitable for these purposes;

(f). To solicit and receive voluntary financial and other contributions

from individuals and institutions;

(g). To train, appoint, elect or designate by succession appropriate leaders

called for by the requirements and standards of any religion or belief;

(h). To observe days of rest and to celebrate holidays and ceremonies in

accordance with the precepts of one’s religion or belief;

(i). To establish and maintain communications with individuals and

communities in matters of religion and belief at the national and

international levels.

Declaration on the Rights of Persons Belonging to

National or Ethnic, Religious and Linguistic

Minorities, 1992

General Assembly Resolution 47/135 of December 18,1992

Minority rights are enumerated in Article 2:

1. Persons belonging to national or ethnic, religious and linguistic

minorities (hereinafter referred to as persons belonging to minorities)

have the right to enjoy their own culture, to profess and practice their

own religion, and to use their own language, in private and in public,

freely and without interference or any form of discrimination.

2. Persons belonging to minorities have the right to participate

28
effectively in cultural, religious, social, economic and public life.

3. Persons belonging to minorities have the right to participate effectively

in decisions on the national and, where appropriate, regional level

concerning the minority to which they belong or the regions in which

they live, in a manner not incompatible with national legislation.

4. Persons belonging to minorities have the right to establish and

maintain their own associations.

5. Persons belonging to minorities have the right to establish and maintain,

without any discrimination, free and peaceful contacts with other

members of their group and with persons belonging to other minorities,

as well as contacts across frontiers with citizens of other States to

whom they are related by national or ethnic, religious or linguistic ties.

Article 4 stipulates “1. States shall take measures where required to ensure

that persons belonging to minorities may exercise fully and effectively all

their human rights and fundamental freedoms without any discrimination

and in full equality before the law.”

Section 2 declares “States shall take measures to create favorable conditions

to enable persons belonging to minorities to express their characteristics and

to develop their culture, language, religion, traditions and customs, except

where specific practices are in violation of national law and contrary to

international standards.”

Section 3 says States should take appropriate measures for persons belonging

to national minorities to have instruction in their mother tongue. Section 4

urges States to provide education in the history, traditions, language and

culture of minorities existing within their territories. Section 5 urges States

to take appropriate measures “so that persons belonging to minorities may

participate fully in the economic progress and development in their country.”

RIGHTS OF WOMEN

Convention on the Elimination of All Forms

of Discrimination against Women, 1979 

Ratified by General Assembly resolution 34/180 of December 18, 1979

The detailed preamble to this article notes the long history of United

Nations opposition to all forms of discrimination against women, principally

29
in the Charter of the United Nations and the Universal Declaration of

Human Rights. It also notes that, despite numerous international

conventions, extensive discrimination against women continues to exist.

Not only does this violate principles of equity but it ignores the great

contribution of women to the welfare of the family and to the development

of society, so far not fully recognized. The document notes “a change in

the traditional role of men as well as the role of women in society and in

the family is needed to achieve full equality between men and women.” 

Discrimination against women is defined as “any distinction, exclusion or

restriction made on the basis of sex which has the effect or purpose of

impairing or nullifying the recognition, enjoyment or exercise by women,

irrespective of their marital status, on a basis of equality of men and

women, of human rights and fundamental freedoms in the political,

social, cultural, civil or any other field.”(Article 1)

State Parties are required, not only to condemn discrimination against

women, but “to embody the principle of the equality of men and women

in their national constitutions or other appropriate legislation if not yet

incorporated therein and to ensure, through law and other appropriate

means, the practical realization of this principle.” (Article 2 (a))

State Parties are required further “To take all appropriate measures,

including legislation, to modify or abolish existing laws, regulations, customs

and practices which constitute discrimination against women.” (Article 2 (f))

In addition to other measures, Article 6 states “State Parties shall take

appropriate measures, including legislation, to suppress all forms of traffic

in women and exploitation of prostitution of women.”

Additional articles elaborate on the place of women, without discrimination,

in political and international life, education, employment, health care,

economic and social life. Women’s equality before the law is affirmed, as is

equality in the important sphere of marriage and family life. 

Several of these articles merit elaboration, for they are far more

comprehensive than any previous statements on this topic. For example

on political life, Article 7 enjoins State Parties to “take all appropriate

measures” to ensure that women, on equal terms with men, have the right: 

(a). To vote in all elections and public referenda and to be eligible for

election to all publicly elected bodies;

(b). To participate in the formulation of government policy and the

implementation thereof and to hold public office and perform all

30
public functions at all levels of government;

(c). To participate in non-governmental organizations and associations

concerned with the public and political life of the county. 

Central to provisions for women’s equality is removing discrimination against

women in the field of employment (Article 11.1) “in order to ensure, on a

basis of equality of men and women, the same rights, in particular:

(a) The right to work as an inalienable right of all human beings;

(b)The right to the same employment opportunities, including the

application of the same criteria for selection in matters of employment;

(c) The right to free choice of profession and employment, the right to

promotion, job security and all benefits and conditions of service and

the right to receive vocational training and retraining, including

apprenticeships, advanced vocational training and recurrent training;

(d)the right to equal remuneration, including benefits, and to equal

treatment in respect of work of equal value, as well as equality of

treatment in the evaluation of the quality of work;

(e) The right to social security, particularly in cases of retirement,

unemployment, sickness, invalidity and old age and other incapacity

to work, as well as the right to paid leave;

(f) The right to protection of health and to safety in working conditions,

including the safeguarding of the function of reproduction. 

2. In order to prevent discrimination against women on the grounds of

marriage or maternity and to ensure their effective right to work, State

Parties shall take appropriate measures:

(a) To prohibit, subject to the imposition of sanctions, dismissal on the

grounds of pregnancy or of maternity leave and discrimination in

dismissals on the basis of marital status;

(b)To introduce maternity leave with pay or with comparable social

benefits without loss of former employment, seniority or social

allowances; 

(c) To encourage the provision of the necessary supporting social services

to enable parents to combine family obligations with work

responsibilities and participation in public life, in particular through

promoting the establishment and development of a network of

child-care facilities;

(d)To provide special protection to women during pregnancy in types

of work proved to be harmful to them.

The economic and social life provisions are crystalline ensuring (Article 13)

on a basis of equality of men and women, the same rights, in particular:

31
(a) The right to family benefits;

(b)The right to bank loans, mortgages and other forms of 

financial credit;

(c) The right to participate in recreational activities, sports 

and all aspects of cultural life.

Article 14 contains significant provisions about the particular problems

faced by rural women, whose role is central to the survival of their

families, generally in non-monetized sectors of the economy. Such women

have the right (14.2): 

(a) To participate in the elaboration and implementation of

development planning at all levels;

(b)To have access to adequate health care facilities, including

information, counseling and services in family planning;

(c) To benefit directly from social security programs;

(d)To obtain all types of training and education, formal and nonformal, including that relating to functional literacy, as well as,

inter alia, the benefit of all community and extension services, in

order to increase their technical proficiency;

(e) To organize self-help groups and co-operatives in order to obtain

equal access to economic opportunities through employment or

self employment;

(f) To participate in all community activities;

(g) To have access to agricultural credit and loans, marketing facilities,

appropriate technology and equal treatment in land and agrarian

reform as well as in land resettlement schemes;

(h)To enjoy adequate living conditions, particularly in relation to

housing, sanitation, electricity and water supply, transport and

communications.

It becomes clear that eliminating discrimination against women is not

only a matter of the correct writing of laws, but of effecting social and

attitudinal change. Nowhere is this more evident than in Article 16.1

which gives women and men:

(a) The same right to enter into marriage;

(b)The same right freely to choose a spouse and to enter into marriage

only with their free and full consent;

(c) The same rights and responsibilities during marriage and at its

dissolution;

(d)The same rights and responsibilities as parents, irrespective of their

marital status, in matters relating to their children; in all cases the

interests of the children shall be paramount;

32
(e) The same rights to decide freely and responsibly on the number

and spacing of their children and to have access to the information,

education and means to enable them to exercise these rights;

(f) The same rights and responsibilities with regard to guardianship,

wardship, trusteeship and adoption of children, or similar

institutions where these concepts exist in national legislation; in

all cases the interests of the child shall be paramount;

(g) The same personal rights as husband and wife, including the right

to choose a family name, a profession and an occupation;

(h)The same rights for both spouses in respect of the ownership,

acquisition, management, administration, enjoyment and disposition

of property, whether free of charge or for a valuable consideration. 

RIGHTS OF THE CHILD

Convention on the Rights of the Child, 1989

General Assembly resolution 44/25 of November 20, 1989; entered into force

September 2, 1990

The Convention affirms in Article 2 “State Parties shall respect and

ensure the rights set forth in the present Convention to each child within

their jurisdiction without discrimination of any kind, irrespective of the

child’s or his or her parent’s or legal guardian’s race, color, sex, language,

religion, political or other opinion, national, ethnic or social origin,

property, disability, birth or other status.”

Article 3.1 states “In all actions concerning children, whether undertaken

by public or private social welfare institutions, courts of law, administrative

authorities or legislative bodies, the best interests of the child shall be a

primary consideration.”

Article 7.1 states “The child shall be registered immediately after birth

and shall have the right from birth to a name, the right to acquire a

nationality and, as far as possible, the right to know and be cared for by his

or her parents.”

Article 8.1 states “States Parties undertake to respect the right of the child

to preserve his or her identity, including nationality, name and family

relations as recognized by law without unlawful interference.”

Article 11.1 states “States Parties shall take measures to combat the illicit

transfer and non-return of children abroad.”

33
Basic free expression provisions from other International Bill of Rights

documents are elaborated in this Convention, as in Article 13.1 “The

child shall have the right to freedom of expression; this right shall include

freedom to seek, receive and impart information and ideas of all kinds,

regardless of frontiers, either orally, in writing or in print, in the form of

art, or through any other media of the child’s choice.”

Article 14.1 states “State Parties shall respect the right of the child to

freedom of thought, conscience and religion.” 

Article 15.1 recognizes “the rights of the child to freedom of association

and to freedom of peaceful assembly.”

Article 18.1 enjoins State Parties to “use their best efforts to ensure

recognition of the principle that both parents have common

responsibilities for the upbringing and development of the child.”

Article 34 calls for State Parties to protect the child from all forms of

sexual exploitation and sexual abuse. For these purposes, State Parties

shall in particular take all appropriate national, bilateral and multilateral

measures to prevent:

(a) The inducement or coercion of a child to engage in any unlawful

sexual activity;

(b)The exploitative use of children in prostitution or other unlawful

sexual practices; 

(c) The exploitative use of children in pornographic performances 

and materials.

SUPPRESSION OF THE TRAFFIC IN PERSONS,

CONVENTION AGAINST TORTURE

Convention for the Suppression of the Traffic in

Persons and the Exploitation of the Prostitution of

Others, 1949

General Assembly resolution 317 (IV) of December 2, 1949; entered into force on

July 25, 1951

The antecedents of this Convention are among the oldest in the human

rights tradition, dating to a 1904 international agreement for the

Suppression of the White Slave Traffic and a 1921 International

Convention for the Suppression of the Traffic in Women and Children.

34
The 1949 Convention’s preamble states “prostitution and the

accompanying evil of the traffic in persons for the purpose of prostitution

are incompatible with the dignity and worth of the human person and

endanger the welfare of the individual, the family and the community.” 

Article 1 states “The Parties to the present Convention agree to punish

any person who, to gratify the passions of another:

1. Procures, entices or leads away, for purposes of prostitution,

another person, even with the consent of that person;

2. Exploits the prostitution of another person, even with the consent

of that person.”

Article 8 states “The offenses referred to in articles 1 and 2 of the present

Convention shall be regarded as extraditable offenses in any extradition

treaty which has been or may hereafter be concluded between any of the

Parties to this Convention.”

Article 17 establishes a series of measures “to check the traffic in persons 

of either sex for the purpose of prostitution,” in particular (3) “To take

appropriate measures to ensure supervision of railway stations, airports,

seaports and en route, and of other public places, in order to prevent

international traffic in persons for the purpose of prostitution.”

Article 19 establishes conditions for the repatriation of destitute victims of

international traffic in persons for the purpose of prostitution, including

making (1) “suitable provisions for their temporary care and maintenance”

and, should they be unable to repay the cost of repatriation, that cost (2)

“as far as the nearest frontier or port of embarkation or airport in the

direction of the state of origin shall be borne by the State where they are

in residence, and the cost of the remainder of the journey shall be borne

by the State of origin.”

Convention against Torture and OtherCruel,Inhuman

or Degrading Treatment or Punishment, 1984 

General Assembly resolution 39/46 of December 10, 1984; entered into force 

June 26, 1987

Torture is “any act by which severe pain of suffering, whether physical or

mental, is intentionally inflicted on a person for such purposes as obtaining

from him or a third person information or a confession, punishing him for

an act he or a third person has committed or is suspected of having committed,

or intimidating or coercing him or a third person, or for any reason based

35
on discrimination of any kind, when such pain or suffering is inflicted by or at

the instigation of or with the consent or acquiescence of a public official or

other person acting in an official capacity. It does not include pain or suffering

arising only from, inherent in or incidental to lawful sanctions.” (Article 1.1)

Article 2.2 disallows the use of torture in times of war or national emergency

in the following language “No exceptional circumstances whatsoever,

whether a state of war or a threat of war, internal political instability or

any other public emergency, may be invoked as a justification of torture.”

Article 2.3 eliminates the “I was just obeying orders” defense by stating

“An order from a superior officer or a public authority may not be invoked

as a justification of torture.”

Article 10 mandates proper training for law enforcement personnel. (1)

“Each State Party shall ensure that education and information regarding

the prohibition against torture are fully included in the training of law

enforcement personnel, civil or military, medical personnel, public officials

and other persons who may be involved in the custody, interrogation or

treatment of any individual subjected to any form of arrest, detention or

imprisonment.”

Article 13 states “Each State Party shall ensure that any individual who

alleges he has been subjected to torture in any territory under its

jurisdiction has the right to complain to, and to have his case promptly

and impartially examined by, its competent authorities. Steps shall be

taken to ensure that the complainant and witnesses are protected against

all ill-treatment or intimidation as a consequence of his complaint or any

evidence given.” 

Article 14.1 states “Each State Party shall ensure in its legal system that

the victim of an act of torture obtains redress and has an enforceable right

to fair and adequate compensation, including the means for as full

rehabilitation as possible. In the event of the death of the victim as a result

of an act of torture, his dependents shall be entitled to compensation.”

HUMAN RIGHTS IN THE 

ADMINISTRATION OF JUSTICE

The following documents are not international laws but codes of conduct

and statements of principles for several administration of justice professions,

including law enforcement officials, lawyers, prosecutors, and judges. They

should be considered as a unit, their goal is to lay the foundations for a legal

36
culture. They should be supplemented by comparable domestic documents

from professions, such as bar associations, judges’ associations, etc., and

from the statement of standards established by international professional

associations of administration of justice professionals as well. The

Declaration of Basic Principles of Justice for Victims of Crime and Abuse

of Power, 1985, is the prototype of modern victims’ rights laws. 

Code of Conduct for Law EnforcementOfficials,1979

General Assembly resolution 34/169 of December 17, 1979

Law enforcement officials includes “all officers of the law, whether

appointed or elected, who exercise police powers, especially the powers 

of arrest or detention.” The definition is extended to include military

authorities, whether uniformed or not, or State security forces in countries

where they exercise police powers. (Article 1 (a) (b))

Article 2 notes “In the performance of their duty, law enforcement officials

shall respect and protect human dignity and maintain and uphold the

human rights of all persons.”

Article 3 notes “Law enforcement officials may use force only when strictly

necessary and to the extent required for the performance of their duty.” 

The following Commentary clarifies the article:

(a) This provision emphasizes that the use of force by law enforcement

officials should be exceptional; while it implies that law enforcement

officials may be authorized to use force as is reasonably necessary

under the circumstances for the prevention of crime or in effecting

or assisting in the lawful arrest of offenders or suspected offenders,

no force going beyond that may be used.

(b)National law ordinarily restricts the use of force by law enforcement

officials in accordance with a principle of proportionality. It is to be

understood that such national principles of proportionality are to be

respected in the interpretation of this provision. In no case should

this provision be interpreted to authorize the use of force which is

disproportionate to the legitimate objective to be achieved.

(c) The use of firearms is considered an extreme measure. Every effort

should be made to exclude the use of firearms, especially against

children. In general, firearms should not be used except when a

suspected offender offers armed resistance or otherwise jeopardizes

the lives of others and less extreme measures are not sufficient to

restrain or apprehend the suspected offender. In every instance in

37
which a firearm is discharged, a report should be made promptly to

the competent authorities.

Article 5 states “No law enforcement official may inflict, instigate or

tolerate any act of torture or other cruel, inhuman or degrading treatment

or punishment, nor may any law enforcement official invoke superior

orders or exceptional circumstances such as a state of war or a threat of

war, a threat to national security, internal political instability or any other

public emergency as a justification of torture or other cruel, inhuman or

degrading treatment or punishment.”

Article 6 mandates law enforcement officials to “ensure the full protection

of the health of persons in their custody and, in particular, [they, ed.] shall

take immediate action to secure medical attention whenever required.”

Article 7 states “Law enforcement officials shall not commit any act of

corruption. They shall also rigorously oppose and combat all such acts.”

The Commentary is explicit:

1. Any act of corruption, in the same way as any other abuse of authority,

is incompatible with the profession of law enforcement officials. The

law must be enforced fully with respect to any law enforcement official

who commits an act of corruption, as Governments cannot expect to

enforce the law among their citizens if they cannot, or will not,

enforce the law against their own agents and within their agencies. 

2. While the definition of corruption must be subject to national law, it

should be understood to encompass the commission or omission of an

act in the performance of or in connection with one’s duties, in

response to gifts, promises or incentives demanded or accepted, or the

wrongful receipt of these once the act has been committed or omitted.

3. The expression “act of corruption” referred to above should be

understood to encompass attempted corruption.

Article 8 states “Law enforcement officials shall respect the law and the

present Code. They shall also, to the best of their capability, prevent and

rigorously oppose any violations of them.

Law enforcement officials who have reason to believe that a violation of

the present Code has occurred or is about to occur shall report the matter

to their superior authorities and, where necessary, to other appropriate

authorities or organs vested with reviewing or remedial power.”

38
The Commentary is explicit:

(a) This Code shall be observed whenever it has been incorporated

into national legislation and practice. If legislation or practice

contains stricter provisions than those of the present Code, those

stricter provisions shall be observed.

(b)The article seeks to preserve the balance between the need for

internal discipline of the agency on which public safety is largely

dependent, on the one hand, and the need for dealing with

violations of basic human rights, on the other. Law enforcement

officials shall report violations within the chain of command and

take other lawful action outside the chain of command only when

no other remedies are available or effective. It is understood that

law enforcement officials shall not suffer administrative or other

penalties because they have reported that a violation of this Code

has occurred or is about to occur.

(c) The term “appropriate authorities or organs vested with reviewing

or remedial power” refers to any authority or organ existing under

national law, whether internal to the law enforcement agency or

independent thereof, with statutory, customary or other power to

review grievances and complaints arising out of violations within

the purview of this Code.

(d)In some countries, the mass media may be regarded as performing

complaint review functions similar to those described in

subparagraph (c) above. Law enforcement officials may, therefore,

be justified if, as a last resort and in accordance with the laws and

customs of their own countries and with the provisions of Article 4

of the present Code, they bring violations to the attention of

public opinion through mass media.

(e) Law enforcement officials who comply with the provisions of this

Code deserve the respect, the full support and the cooperation of

the community and of the law enforcement agency in which they

serve, as well as the law enforcement profession.

Basic Principles on the Use of Force and Firearms

by Law Enforcement Officials, 1990

Adopted by the Eighth United Nations Congress on the Prevention of Crime and the

Treatment of Offenders, Havana, Cuba, August 27-September 7, 1990

The principles state:

2. Governments and law enforcement agencies should develop a range of

means as broad as possible and equip law enforcement officials with

39
various types of weapons and ammunition that would allow for a

differentiated use of force and firearms. These should include the

development of non-lethal incapacitating weapons for use in

appropriate situations, with a view to increasingly restraining the

application of means capable of causing death or injury to persons. For

the same purpose, it should also be possible for law enforcement

officials to be equipped with self-defensive equipment such as shields,

helmets, bullet-proof vests and bullet-proof means of transportation, in

order to decrease the need to use weapons of any kind.

3. The development and deployment of non-lethal incapacitating

weapons should be carefully evaluated in order to minimize the risk of

endangering uninvolved persons, and the use of such weapons should

be carefully controlled.

4. Law enforcement officials, in carrying out their duty, shall, as far as

possible, apply non-violent means before resorting to the use of force

and firearms. They may use force and firearms only if other means remain

ineffective or without any promise of achieving the intended result.

5. Whenever the lawful use of force and firearms is unavoidable, law

enforcement officials shall:

(a) Exercise restraint in such use and act in proportion to the seriousness

of the offense and the legitimate objective to be achieved;

(b)Minimize damage and injury, and respect and preserve human life;

(c) Ensure that assistance and medical aid are rendered to any injured

or affected persons at the earliest possible moment;

(d)Ensure that relatives or close friends of the injured or affected

person are notified at the earliest possible moment. 

6. Where injury or death is caused by the use of force and firearms by law

enforcement officials, they shall report the incident promptly to their

superiors, in accordance with Principle 22.

A Special Provision states (Principle 9) “Law enforcement officials shall

not use firearms against persons except in self-defense or defense of others

against the imminent threat of death or serious injury, to prevent the

perpetration of a particularly serious crime involving grave threat to life,

to arrest a person presenting such a danger and resisting their authority, or

to prevent his or her escape, and only when less extreme means are

insufficient to achieve these objectives. In any event, intentional lethal

use of firearms may only be made when strictly unavoidable in order to

protect life.”

40
Law enforcement officials (Principle 10) “shall identify themselves as such

and give a clear warning of their intent to use firearms, with sufficient time

for the warning to be observed, unless to do so would unduly place the law

enforcement officials at risk or would create a risk of death or serious harm

to other persons, or would be clearly inappropriate or pointless in the

circumstances of the incident.”

The special provisions make a distinction between lawful and peaceful

assemblies, allowed in accordance with the Universal Declaration of

Human Rights, and unlawful but not-violent assemblies. In the latter

case, (Principle 14) “law enforcement officials may use firearms only when

less dangerous means are not practicable and only to the minimum extent

necessary. Law enforcement officials shall not use firearms in such cases,

except under the conditions stipulated in Principle 9.” 

As for policing persons in custody or detention (Principle 15) “Law

enforcement officials, in their relations with persons in custody or detention,

shall not use force, except when strictly necessary for the maintenance of

security and order within the institution, or when personal safety is threatened.” 

Basic Principles on the Independence of the

Judiciary, 1985

Adopted by the Seventh United Nations Congress on the Prevention of Crime and the

Treatment of Offenders held at Milan from August 26 to September 6, 1985, and

endorsed by General Assembly resolutions 40/32 of November 29, 1985 and 40/146

of December 13, 1985 

Independence of the Judiciary

1. The independence of the judiciary shall be guaranteed by the State

and enshrined in the Constitution or the law of the country. It is the

duty of all governmental and other institutions to respect and observe

the independence of the judiciary.

2. The judiciary shall decide matters before them impartially, on the basis

of facts and in accordance with the law, without any restrictions,

improper influences, inducements, pressures, threats or interferences,

direct or indirect, from any quarter or for any reason.

3. The judiciary shall have jurisdiction over all issues of a judicial nature

and shall have exclusive authority to decide whether an issue

submitted for its decision is within its competence as defined by law.

41
4. There shall not be any inappropriate or unwarranted interference with

the judicial process, nor shall judicial decisions by the courts be subject

to revision. This principle is without prejudice to judicial review or to

mitigation or commutation by competent authorities of sentences

imposed by the judiciary, in accordance with the law.

5. Everyone shall have the right to be tried by ordinary courts or

tribunals using established legal procedures. Tribunals that do not 

use the duly established procedures of the legal process shall not be

created to displace the jurisdiction belonging to the ordinary courts 

or judicial tribunals.

6. The principle of the independence of the judiciary entitles and

requires the judiciary to ensure that judicial proceedings are conducted

fairly and that the rights of the parties are respected.

7. It is the duty of each Member State to provide adequate resources to

enable the judiciary to properly perform its functions.

Freedom of expression and association

8. In accordance with the Universal Declaration of Human Rights,

members of the judiciary are like other citizens entitled to freedom of

expression, belief, association and assembly; provided, however, that in

exercising such rights, judges shall always conduct themselves in such a

manner as to preserve the dignity of their office and the impartiality

and independence of the judiciary.

9. Judges shall be free to form and join associations of judges or other

organizations to represent their interests, to promote their professional

training and to protect their judicial independence.

Qualifications, selection and training

10. Persons selected for judicial office shall be individuals of integrity and

ability with appropriate training or qualifications in law. Any method

of judicial selection shall safeguard against judicial appointments for

improper motives. In the selection of judges, there shall be no

discrimination against a person on the grounds of race, color, sex,

religion, political or other opinion, national or social origin, property,

birth or status, except that a requirement, that a candidate for judicial

office must be a national of the country concerned, shall not be

considered discriminatory.

42
Conditions of service and tenure

11. The term of office of judges, their independence, security, adequate

remuneration, conditions of service, pensions and the age of

retirement shall be adequately secured by law.

12. Judges, whether appointed or elected, shall have guaranteed tenure

until a mandatory retirement age or the expiry of their term of office,

where such exists.

13. Promotion of judges, wherever such a system exists, should be based

on objective factors, in particular ability, integrity and experience.

14. The assignment of cases to judges within the court to which they

belong is an internal matter of judicial administration.

Professional secrecy and immunity

15. The judiciary shall be bound by professional secrecy with regard to

their deliberations and to confidential information acquired in the

course of their duties other than in public proceedings, and shall not

be compelled to testify on such matters.

16. Without prejudice to any disciplinary procedure or to any right of

appeal or to compensation from the State, in accordance with

national law, judges should enjoy personal immunity from civil suits

for monetary damages for improper acts or omissions in the exercise of

their judicial functions.

Discipline, suspension and removal

17. A charge or complaint made against a judge in his/her judicial and

professional capacity shall be processed expeditiously and fairly under

an appropriate procedure. The judge shall have the right to a fair

hearing. The examination of the matter at its initial stage shall be

kept confidential, unless otherwise requested by the judge.

18. Judges shall be subject to suspension or removal only for reasons of

incapacity or behavior that renders them unfit to discharge their

duties.

19. All disciplinary, suspension or removal proceedings shall be

determined in accordance with established standards of judicial

conduct.

43
20. Decisions in disciplinary, suspension or removal proceedings shall be

subject to an independent review. This principle may not apply to the

decisions of the highest court and those of the legislature in

impeachment or similar proceedings.

Basic Principles on the Role of Lawyers, 1990

Adopted by the Eighth United Nations Congress on the Prevention of Crime and the

Treatment of Offenders, Havana, Cuba, August 27-September 7, 1990

The Basic Principles on the Role of Lawyers, set forth below, which have been

formulated to assist Member States in their task of promoting and ensuring the

proper role of lawyers, should be respected and taken into account by

Governments within the framework of their national legislation and practice

and should be brought to the attention of lawyers as well as other persons, such

as judges, prosecutors, members of the executive and legislature, and the public

in general. These principles shall also apply, as appropriate, to persons who

exercise the functions of lawyers without having the formal status of lawyers.

Access to lawyers and legal services

1. All persons are entitled to call upon the assistance of a lawyer of their

choice to protect and establish their rights and to defend them in all

stages of criminal proceedings.

2. Governments shall ensure that efficient procedures and responsive

mechanisms for effective and equal access to lawyers are provided for

all persons within their territory and subject to their jurisdiction,

without distinction of any kind, such as discrimination based on race,

color, ethnic origin, sex, language, religion, political or other opinion,

national or social origin, property, birth, economic or other status.

3. Governments shall ensure the provision of sufficient funding and other

resources for legal services to the poor and, as necessary, to other

disadvantaged persons. Professional associations of lawyers shall

cooperate in the organization and provision of services, facilities and

other resources.

4. Governments and professional associations of lawyers shall promote

programs to inform the public about their rights and duties under the

law and the important role of lawyers in protecting their fundamental

freedoms. Special attention should be given to assisting the poor and

other disadvantaged persons so as to enable them to assert their rights

and where necessary call upon the assistance of lawyers.

44
Special safeguards in criminal justice matters

5. Governments shall ensure that all persons are immediately informed by the

competent authority of their right to be assisted by a lawyer of their own

choice upon arrest or detention or when charged with a criminal offense.

6. Any persons who do not have a lawyer shall, in all cases which the

interests of justice so require, be entitled to have a lawyer of experience

and competence commensurate with the nature of the offense assigned

to them in order too provide effective legal assistance, without payment

by them if they lack sufficient means to pay for such services.

7. Governments shall further ensure that all persons arrested or detained,

with or without criminal charge, shall have prompt access to a lawyer,

and in any case not later than forty-eight hours from the time of arrest

and detention.

8. All arrested, detained or imprisoned persons shall be provided with

adequate opportunities, time and facilities to be visited by and to

communicate and consult with a lawyer, without delay, interception or

censorship and in full confidentiality. Such consultations may be

within sight, but not within hearing, of law enforcement officials.

A section on training urges “lawyers have appropriate education and

training and be made aware of the ideals and ethical duties of the lawyer

and of human rights and fundamental freedoms recognized by national

and international law.” (Principle 9)

A section on duties and responsibilities states:

12.Lawyers shall at all times maintain the honor and dignity of their

profession as essential agents of the administration of justice.

13.The duties of lawyers towards their clients shall include:

(a) Advising clients as to their legal rights and obligations, and as to

the working of the legal system in so far as it is relevant to the legal

rights and obligations of the clients;

(b)Assisting clients in every appropriate way, and taking legal action

to protect their interests;

(c) Assisting clients before courts, tribunals or administrative

authorities, where appropriate.

45
14. Lawyers, in protecting the rights of their clients and in promoting the

cause of justice, shall seek to uphold human rights and freedoms

recognized by national and international law and shall at all times act

freely and diligently in accordance with the law and recognized

standards and ethics of the legal profession.

15.Lawyers shall always loyally respect the interests of their clients.

Guarantees for the functioning of lawyers

16.Governments shall ensure that lawyers (a) are able to perform all of

their professional functions without intimidation, hindrance,

harassment or improper interference; (b) are able to travel and to

consult with their clients freely both within their own country and

abroad; and (c) shall not suffer, or be threatened with, prosecution or

administrative, economic or other sanctions for any action taken in

accordance with recognized professional duties, standards and ethics.

17.Where the security of lawyers is threatened as a result of discharging

their functions, they shall be adequately safeguarded by the authorities.

18.Lawyers shall not be identified with their clients or their clients’ causes

as a result of discharging their functions.

19.No court or administrative authority before whom the right to counsel

is recognized shall refuse to recognize the right of a lawyer to appear

before it for his or her client unless that lawyer has been disqualified in

accordance with national law and practice and in conformity with

these principles.

20.Lawyers shall enjoy civil and penal immunity for relevant statements

made in good faith in written or oral pleadings or in their professional

appearances before a court, tribunal or other legal or administrative

authority.

21.It is the duty of the competent authorities to ensure lawyers access to

appropriate information, files and documents in their possession or

control in sufficient time to enable lawyers to provide effective legal

assistance to their clients. Such access should be provided at the

earliest appropriate time.

22. Governments shall recognize and respect that all communications 

and consultations between lawyers and their clients within their

professional relationship are confidential.

46
Freedom of expression and association

23.Lawyers like other citizens are entitled to freedom of expression, belief,

association and assembly. In particular, they shall have the right to

take part in public discussion of matters concerning the law, the

administration of justice and the promotion and protection of human

rights and to join or form local, national or international organizations

and attend their meetings, without suffering professional restrictions

by reason of their lawful action or their membership in a lawful

organization. In exercising these rights, lawyers shall always conduct

themselves in accordance with the law and recognized standards and

ethics of the legal profession.

Professional associations of lawyers

24. Lawyers shall be entitled to form and join self-governing professional

associations to represent their interests, promote their continuing

education and training and protect their professional integrity. The

executive body of the professional associations shall be elected by its

members and shall exercise its functions without external interference.

Disciplinary proceedings

26.Codes of professional conduct for lawyers shall be established by the

legal profession through its appropriate organs, or by legislation, in

accordance with national law and custom and recognized

international standards and norms.

27.Charges or complaints made against lawyers in their professional

capacity shall be processed expeditiously and fairly under appropriate

procedures. Lawyers shall have the right to a fair hearing, including

the right to be assisted by a lawyer of their choice.

28.Disciplinary proceedings against lawyers shall be brought before an

impartial disciplinary committee established by the legal profession,

before an independent statutory authority, or before a court, and shall

be subject to an independent judicial review.

47
Guidelines on the Role of Prosecutors, 1990

Adopted by the Eighth United National Congress on the Prevention of Crime and the

Treatment of Offenders, Havana, Cuba, August 27-September 7, 1990

Qualifications, selection and training

1. Persons selected as prosecutors shall be individuals of integrity and

ability, with appropriate training and qualifications.

2. States should ensure that:

(a) Selection criteria for prosecutors embody safeguards against

appointments based on partiality or prejudice, excluding any

discrimination against a person on the grounds of race, color, sex,

language, religion, political or other opinion, national, social or

ethnic origin, property, birth, economic or other status, except that

it shall not be considered discriminatory to require a candidate for

prosecutorial office to be a national of the country concerned;

(b)Prosecutors have appropriate education and training and should be

made aware of the ideals and ethical duties of their office, of the

constitutional and statutory protections for the rights of the suspect

and the victim, and of the human rights and fundamental freedoms

recognized by national and international law.

Status and conditions of service

Provisions call for prosecutors to (3) “at all times maintain the honor and

dignity of their profession.” States should ensure their ability to function

without (4) “intimidation, hindrance, harassment, improper interference

or unjustified exposure to civil, penal or other liability.” They and their

families should be offered physical protection (5) “when their personal

safety is threatened as a result of the discharge of prosecutorial functions.”

Reasonable conditions of service shall be maintained, including (6)

“adequate remuneration and, where applicable, tenure, pension and age of

retirement” to be set out in published rules and regulations. 

Freedom of expression and association

(The language of this section is similar to that in the Guidelines for Lawyers.)

Role in criminal proceedings

10.The office of prosecutors shall be strictly separated from judicial

functions.

48
11.Prosecutors shall perform an active role in criminal proceedings,

including institution of prosecution and, where authorized by law or

consistent with local practice, in the investigation of crime,

supervision over the legality of these investigations, supervision of the

execution of court decisions and the exercise of other functions as

representatives of the public interest.

12.Prosecutors shall, in accordance with the law, perform their duties

fairly, consistently and expeditiously, and respect and protect human

dignity and uphold human rights, thus contributing to ensuring due

process and the smooth functioning of the criminal justice system.

13.In the performance of their duties, prosecutors shall: 

(a) Carry out their functions impartially and avoid all political, social,

religious, racial, cultural, sexual or any other kind of

discrimination; 

(b)Protect the public interest, act with objectivity, take proper

account of the position of the suspect and the victim, and pay

attention to all relevant circumstances, irrespective of whether

they are to the advantage or disadvantage of the suspect;

(c) Keep matters in their possession confidential, unless the

performance of duty or the needs of justice require otherwise;

(d)Consider the views and concerns of victims when their personal

interests are affected and ensure that victims are informed of their

rights in accordance with the Declaration of Basic Principles of

Justice for Victims of Crime and Abuse of Power.

14.Prosecutors shall not initiate or continue prosecution, or shall make

every effort to stay proceedings, when an impartial investigation shows

the charge to be unfounded.

15.Prosecutors shall give due attention to the prosecution of crimes

committed by public officials, particularly corruption, abuse of power,

grave violations of human rights and other crimes recognized by

international law and, where authorized by law or consistent with

local practice, the investigation of such offenses.

16.When prosecutors come into possession of evidence against suspects

that they know or believe on reasonable grounds was obtained through

recourse to unlawful methods, which constitute a grave violation of

the suspect’s human rights, especially involving torture or cruel,

inhuman or degrading treatment or punishment, or other abuses of

human rights, they shall refuse to use such evidence against anyone

49
other than those who used such methods, or inform the Court

accordingly, and shall take all necessary steps to ensure that those

responsible for using such methods are brought to justice.

Discretionary functions

17.In countries where prosecutors are vested with discretionary functions,

the law or published rules or regulations shall provide guidelines to

enhance fairness and consistency of approach in taking decisions in

the prosecution process, including institution or waiver of prosecution.

Alternatives to prosecution

18.In accordance with national law, prosecutors shall give due

consideration to waiving prosecution, discontinuing proceedings

conditionally or unconditionally, or diverting criminal cases from the

formal justice system, with respect for the rights of suspect(s) and the

victim(s). For this purpose, States should fully explore the possibility of

adopting diversion schemes not only to alleviate excessive court loads,

but also to avoid the stigmatization of pre-trial detention, indictment

and conviction, as well as the possible adverse effects of imprisonment.

19.In countries where prosecutors are vested with discretionary functions

as to the decision whether or not to prosecute a juvenile, special

considerations shall be given to the nature and gravity of the offense,

protection of society and the personality and background of the

juvenile. In making that decision, prosecutors shall particularly

consider available alternatives to prosecution under the relevant

juvenile justice laws and procedures. Prosecutors shall use their best

efforts to take prosecutory action against juveniles only to the extent

strictly necessary.

Relations with other government agencies or institutions 

20.In order to ensure the fairness and effectiveness of prosecution,

prosecutors shall strive to cooperate with the police, the courts, the

legal profession, public defenders and other government agencies or

institutions.

Disciplinary proceedings

21.Disciplinary offenses of prosecutors shall be based on law and lawful

regulations. Complaints against prosecutors which allege that they

acted in a manner clearly out of the range of professional standards

50
shall be processed expeditiously and fairly under appropriate

procedures. Prosecutors shall have the right to a fair hearing. The

decision shall be subject to independent review. 

22.Disciplinary proceedings against prosecutors shall guarantee an

objective evaluation and decision. They shall be determined in

accordance with the law, the code of professional conduct and other

established standards and ethics and in light of the present Guidelines.

Declaration of Basic Principles of Justice for

Victims of Crime and Abuse of Power,1985

Adopted by General Assembly resolution 40/34 of November 29, 1985

A. VICTIMS OF CRIME

1. Victims means “persons who, individually or collectively, have 

suffered harm, including physical or mental injury, emotional suffering,

economic loss or substantial impairment of their fundamental rights,

through acts or omissions that are in violation of criminal laws

operative within Member States, including those laws proscribing

criminal abuse of power.” 

2. A person may be considered a victim, under this Declaration,

regardless of whether the perpetrator is identified, apprehended,

prosecuted or convicted and regardless of the familial relationship

between the perpetrator and the victim. The term “victim” also

includes, where appropriate, the immediate family or dependents of

the direct victim and persons who have suffered harm in intervening

to assist victims in distress or to prevent victimization.

Access to justice and fair treatment

4. Victims should be treated with compassion and respect for their

dignity. They are entitled to access to the mechanisms of justice and to

prompt redress, as provided for by national legislation, for the harm

that they have suffered.

5. Judicial and administrative mechanisms should be established and

strengthened where necessary to enable victims to obtain redress

through formal and informal procedures that are expeditious, fair,

inexpensive and accessible. Victims should be informed of their rights

in seeking redress through such mechanisms.

51
6. The responsiveness of judicial and administrative processes to the

needs of victims should be facilitated by: 

(a) Informing victims of their role and the scope, timing and progress

of the proceedings and the disposition of their cases, especially

where serious crimes are involved and where they have requested

such information;

(b)Allowing the views and concerns of victims to be presented and

considered at appropriate stages of the proceedings where their

personal interests are affected, without prejudice to the accused

and consistent with the relevant national criminal justice system;

(c) Providing proper assistance to victims throughout the legal process;

(d)Taking measures to minimize inconvenience to victims, protect

their privacy, when necessary, and ensure their safety, as well as

that of their families and witnesses on their behalf, from

intimidation and retaliation;

(e) Avoiding unnecessary delay in the disposition of cases and the

execution of orders or decrees granting awards to victims.

7. Informal mechanisms for the resolution of disputes, including

mediation, arbitration and customary justice or indigenous practices,

should be utilized where appropriate to facilitate conciliation and

redress for victims.

Restitution

8. Offenders or third parties responsible for their behavior should, where

appropriate, make fair restitution to victims, their families or dependents.

Such restitution should include the return of property or payment for

the harm or loss suffered, reimbursement of expenses incurred as a result

of victimization, the provision of services and the restoration of rights. 

9. Governments should review their practices, regulations and laws to

consider restitution as an available sentencing option in criminal

cases, in addition to other criminal sanctions.

10.In cases of substantial harm to the environment, restitution, if ordered,

should include, as far as possible, restoration of the environment,

reconstruction of the infrastructure, replacement of community

facilities and reimbursement of the expenses of relocation, whenever

such harm results in the dislocation of a community.

11.Where public officials or other agents acting in an official or

quasiofficial capacity have violated national criminal laws, the victims

52
should receive restitution from the State whose officials or agents were

responsible for the harm inflicted. In cases where the Government

under whose authority the victimizing act or omission occurred is no

longer in existence, the State or Government successor in title should

provide restitution to the victims.

Compensation

12.When compensation is not fully available from the offender or other

sources, States should endeavor to provide financial compensation to:

(a) Victims who have sustained significant bodily injury or impairment

of physical or mental health as a result of serious crimes;

(b)The family, in particular dependents of persons who have died or

become physically or mentally incapacitated as a result of such

victimization.

13.The establishment, strengthening and expansion of national funds for

compensation to victims should be encouraged. Where appropriate,

other funds may also be established for this purpose, including in those

cases where the State of which the victim is a national is not in a

position to compensate the victim for the harm.

Assistance

14.Victims should receive the necessary material, medical, psychological

and social assistance through governmental, voluntary, communitybased and indigenous means.

15.Victims should be informed of the availability of health and social services

and other relevant assistance and be readily afforded access to them.

16.Police, justice, health, social service and other personnel concerned

should receive training to sensitize them to the needs of victims, and

guidelines to ensure proper and prompt aid.

B. VICTIMS OF ABUSE OF POWER

18.Victims means “persons who, individually or collectively, have suffered

harm, including physical or mental injury, emotional suffering,

economic loss or substantial impairment of their fundamental rights,

through acts or omissions that do not yet constitute violations of

national criminal laws but of internationally recognized norms relating

to human rights.”

53
19.States should consider incorporating into the national law norms

proscribing abuses of power and providing remedies to victims of such

abuses. In particular, such remedies should include restitution and/or

compensation, and necessary material, medical, psychological and

social assistance and support.

WAR CRIMES, CRIMES AGAINST HUMANITY,

INCLUDING GENOCIDE, THE PROTECTION OF

CIVILIAN PERSONS IN TIME OF WAR

Convention on the Prevention and Punishment

of the Crime of Genocide, 1948

Ratified by General Assembly resolution 260 A (III) of December 9, 1948; entered

into force on January 12, 1951

Genocide is defined in Article II as “any of the following acts committed

with the intent to destroy, in whole or in part, a national, ethnical, racial

or religious group, as such” including:

(a) Killing members of the group

(b)Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to

bring about its physical destruction in whole or in part;

(d)Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

The following acts shall be punishable: 

(a) Genocide;

(b)Conspiracy to commit genocide;

(c) Direct and public incitement to commit genocide;

(d)Attempt to commit genocide;

(e) Complicity in genocide.

Article IV states that persons committing genocide or any of the other acts

enumerated in Article III “shall be punished, whether they are

constitutionally responsible rulers, public officials or private individuals.”

Article V requires Contracting Parties to undertake to enact “in

accordance with their respective Constitutions, the necessary legislation

to give effect to the provisions of the present Convention.”

54
Article VI states “persons charged with genocide or any of the other acts

enumerated in Article III shall be tried by a competent tribunal of the

State in the territory of which the act was committed, or by such

international penal tribunal as may have jurisdiction with respect to those

Contracting Parties which shall have accepted its jurisdiction.”

Article VII notes that genocide and other acts enumerated in Article III

“shall not be considered as political crimes for the purpose of extradition”

and the Contracting Parties “pledge themselves in such cases to grant

extradition in accordance with their laws and treaties in force.”

Article VIII allows Contracting Parties to “call upon the competent organs

of the United Nations to take such action under the Charter of the United

Nations as they consider appropriate for the prevention and suppression of

acts of genocide or any of the other acts enumerated in Article III.”

Geneva Convention Relative to the Protection of

Civilian Persons in Time of War, 1949

This document, completed on August 12, 1949, came into force on October 21, 1950

Article 3 states:

In case of armed conflict not of an international character occurring in

the territory of one of the High Contracting Parties, each Party to the

conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of

armed forces who have laid down their arms and those placed hors de

combat by sickness, wounds, detention, or any other cause, shall in all

circumstances be treated humanely, without any adverse distinction

founded on race, color, religion or faith, sex, birth or wealth, or any

other similar criteria.

To this end, the following acts are and shall remain prohibited at

any time and in any place whatsoever with respect to the abovementioned persons:

(a) Violence to life and person, in particular murder of all kinds,

mutilation, cruel treatment and torture;

(b)Taking of hostages;

(c) Outrages upon personal dignity, in particular humiliating and

degrading treatment;

(d)The passing of sentences and the carrying out of executions

without previous judgment pronounced by a regularly constituted

55
court, affording all the judicial guarantees which are recognized as

indispensable by civilized peoples.

Article 11

The High Contracting Parties may at any time agree to entrust to an

organization which offers all guarantees of impartiality and efficacy the

duties incumbent on the Protecting Powers by virtue of the present

Convention.

Article 27

Protected persons are entitled, in all circumstances, to respect for their

persons, their honor, their family rights, their religious convictions and

practices, and their manners and customs. They shall at all times be

humanely treated, and shall be protected especially against all acts of

violence or threats thereof and against insults and public curiosity.

Women shall be especially protected against any attack on their honor, in

particular against rape, enforced prostitution, or any form of indecent

assault.

Without prejudice to the provisions relating to the state of their health,

age and sex, all protected persons shall be treated with the same

consideration by the Party to the conflict in whose power they are,

without any adverse distinction based, in particular, on race, religion, or

political opinion.

However, the Parties to the conflict may take such measures of control and

security in regard to protected persons as may be necessary as a result of war.

Part III on the Status and Treatment of Protected Persons contains

numerous provisions for the Occupying Power to follow in observing

international human rights standards. There are over 50 such provisions

including prohibitions against coercion, collective punishment and

torture, (Articles 31,32,33); against taking hostages, (Article 34);

“Protected persons...who have lost their gainful employment, shall be

granted the opportunity to find paid employment.” (Article 39)

Section III on Occupied Territories notes “The Occupying Power may not

alter the status of public officials or judges in the occupied territories, or in

any way apply sanctions to or take any measures of coercion or

56
discrimination against them, should they abstain from fulfilling their

functions for reasons of conscience,” (Article 54); “The Occupying Power

shall permit ministers of religion to give spiritual assistance to the

members of their religious communities.” (Article 58)

Articles 66 to 75 deal with penal issues, including the conduct of trials, due

process provisions, including rights of the detained, the right to a fair trial,

(Article 71); the right to present evidence and call witnesses for the

defense, (Article 72); the right to appeal, (Article 73); the right to have

representatives attend the trial of any protected person, (Article 74); the

right to petition against a death sentence. (Article 75)

Additional articles allow access to the Protected Persons by

representatives of religious organizations, relief societies, or international

humanitarian organizations.

Article 142

Subject to the measures which the Detaining Powers may consider essential

to ensure their security or to meet any other reasonable need, the

representatives of religious organizations, relief societies, or any other

organizations assisting the protected persons shall receive from these

Powers, for themselves or their duly accredited agents, facilities for visiting

the protected persons, for distributing relief supplies and materials from any

source, intended for educational, recreational or religious purposes, or for

assisting them in organizing their leisure time within the places of internment.

Such societies or organizations may be constituted in the territory of the

Detaining Power or in any other country, or they may have an international

character....The special position of the International Committee of the

Red Cross in this field shall be recognized and respected at all times.

Article 143

Representatives or delegates of the Protecting Powers shall have

permission to go to all places where protected persons are, particularly to

places of internment, detention and work.

They shall have access to all premises occupied by protected persons and

shall be able to interview the latter without witnesses, personally or

through an interpreter.

Such visits may not be prohibited except for reasons of imperative

military necessity, and then only as an exceptional and temporary

measure. Their duration and frequency shall not be restricted.

57
Such representatives and delegates shall have full liberty to select the

places they wish to visit. The Detaining or Occupying Power, the

Protecting Power and when occasion arises the Power of origin of the

persons to be visited, may agree that compatriots of the internees shall be

permitted to participate in the visits.

GLOBAL HUMAN RIGHTS STANDARDS

World Conference on Human Rights,TheVienna

Declaration and Program of Action, 1993

The World Conference on Human Rights,

Considering that the promotion and protection of human rights is a

matter of priority for the international community, and that the

Conference affords a unique opportunity to carry out a comprehensive

analysis of the international human rights system and of the machinery

for the protection of human rights, in order to enhance and thus promote

a fuller observance of those rights, in a just and balanced manner, 

Recognizing and affirming that all human rights derive from the dignity and

worth inherent in the human person, and that the human person is the

central subject of human rights and fundamental freedoms, and

consequently should be the principal beneficiary and should participate

actively in the realization of these rights and freedoms...

Solemnly adopts the Vienna Declaration and Program of Action. 

I

1. The World Conference on Human Rights reaffirms the solemn

commitment of all States to fulfill their obligations to promote

universal respect for, and observance and protection of, all human

rights and fundamental freedoms for all in accordance with the

Charter of the United Nations, other instruments relating to human

rights, and international law. The universal nature of these rights and

freedoms is beyond question....

Human rights and fundamental freedoms are the birthright of all

human beings; their protection and promotion is the first

responsibility of Governments.

2. All peoples have the right of self-determination. By virtue of that right

they freely determine their political status, and freely pursue their

economic, social and cultural development.

58
8. Democracy, development and respect for human rights and

fundamental freedoms are interdependent and mutually reinforcing.

Democracy is based on the freely expressed will of the people to

determine their own political, economic, social and cultural systems

and their full participation in all aspects of their lives. 

In the context of the above, the promotion and protection of

human rights and fundamental freedoms at the national and

international levels should be universal and conducted without

conditions attached....

15.Respect for human rights and for fundamental freedoms without

distinction of any kind is a fundamental rule of international human

rights law. The speedy and comprehensive elimination of all forms of

racism and racial discrimination, xenophobia and related intolerance

is a priority task for the international community. Governments

should take effective measures to prevent and combat them. Groups,

institutions, intergovernmental and non-governmental organizations

and individuals are urged to intensify their efforts in cooperating and

coordinating their activities against these evils.

17.The acts, methods and practices of terrorism in all its forms and

manifestations as well as linkage in some countries to drug trafficking

are activities aimed at the destruction of human rights, fundamental

freedoms and democracy, threatening territorial integrity, security of

States and destabilizing legitimately constituted Governments. The

international community should take the necessary steps to enhance

cooperation to prevent and combat terrorism.

18.The human rights of women and of the girl-child are an inalienable,

integral and indivisible part of universal human rights. The full and

equal participation of women in political, civil, economic, social and

cultural life, at the national, regional and international levels, and the

eradication of all forms of discrimination on the grounds of sex are

priority objectives of the international community.

Gender-based violence and all forms of sexual harassment and

exploitation, including those resulting from cultural prejudice and

international trafficking, are incompatible with the dignity and worth

of the human person, and must be eliminated....

The human rights of women should form an integral part of the

United Nations human rights activities, including the promotion of all

human rights instruments relating to women.

19.Considering the importance of the promotion and protection of the

rights of persons belonging to minorities and the contribution of such

59
promotion and protection to the political and social stability of the

States in which such persons live,

The World Conference on Human Rights reaffirms the obligations

of States to ensure that persons belonging to minorities may exercise

fully and effectively all human rights and fundamental freedoms

without any discrimination and in full equality before the law in

accordance with the Declaration on the Rights of Persons Belonging

to National or Ethnic, Religious and Linguistic Minorities.

21.....In all actions concerning children, non-discrimination and the best

interest of the child should be primary considerations and the views of

the child given due weight. National and international mechanisms

and programs should be strengthened for the defense and protection of

children, in particular, the girl-child, abandoned children, street

children, economically and sexually exploited children, including

through child pornography, child prostitution and sale of organs,

children victims of diseases including acquired immunodeficiency

syndrome, refugee and displaced children, children in detention,

children in armed conflict, as well as children victims of famine and

drought and other emergencies. 

23.The World Conference on Human Rights reaffirms that everyone,

without distinction of any kind, is entitled to the right to seek and to

enjoy in other countries asylum from persecution, as well as the right

to return to one’s own country....

24.Great importance must be given to the promotion and protection of

the human rights of persons belonging to groups which have been

rendered vulnerable, including migrant workers, the elimination of all

forms of discrimination against them, and the strengthening and more

effective implementation of existing human rights instruments.

27.Every State should provide an effective framework of remedies to redress

human rights grievances or violations. The administration of justice,

including law enforcement and prosecutorial agencies and, especially,

an independent judiciary and legal profession in full conformity with

applicable standards contained in international human rights

instruments, are essential to the full and non-discriminatory realization

of human rights and indispensable to the processes of democracy....

28.The World Conference on Human Rights expresses its dismay at

massive violations of human rights especially in the form of genocide,

“ethnic cleansing” and systematic rape of women in war situations,

creating mass exodus of refugees and displaced persons. While strongly

60
condemning such abhorrent practices it reiterates the call that perpetrators

of such crimes be punished and such practices immediately stopped. 

38.The World Conference on Human Rights recognizes the important

role of non-governmental organizations in the promotion of all human

rights and in humanitarian activities at national, regional and

international levels....In this respect, the World Conference on

Human Rights emphasizes the importance of continued dialogue and

cooperation between Governments and non-governmental organizations.

Non-governmental organizations and their members genuinely

involved in the field of human rights should enjoy the rights and

freedoms recognized in the Universal Declaration of Human Rights,

and the protection of national law. 

39.Underlining the importance of objective, responsible and impartial

information about human rights and humanitarian issues, the World

Conference on Human Rights encourages the increased involvement

of the media, for whom freedom and protection should be guaranteed

within the framework of national law.

B. Equality, dignity and tolerance 

1. Racism, racial discrimination, xenophobia and

other forms of intolerance

19.The World Conference on Human Rights considers the elimination of

racism and racial discrimination, in particular in their institutionalized

forms...as a primary objective for the international community and a

world-wide promotion program in the field of human rights....

20.The World Conference on Human Rights urges all Governments to

take immediate measures and to develop strong policies to prevent and

combat all forms and manifestations of racism, xenophobia or related

intolerance, where necessary by enactment of appropriate legislation,

including penal measures, and by the establishment of national

institutions to combat such phenomena.

22.The World Conference on Human Rights calls upon all Governments

to take all appropriate measures in compliance with their

international obligations and with due regard to their respective legal

systems to counter intolerance and related violence based on religion

or belief, including practices of discrimination against women and

including the desecration of religious sites, recognizing that every

individual has the right to freedom of thought, conscience, expression

and religion. The Conference also invites all States to put into

61
practice the provisions of the Declaration on the Elimination of All

Forms of Intolerance and of Discrimination Based on Religion or Belief.

23.The World Conference on Human Rights stresses that all persons who

perpetrate or authorize criminal acts associated with ethnic cleansing

are individually responsible and accountable for such human rights

violations, and that the international community should exert every

effort to bring those legally responsible for such violations to justice.

2. Persons belonging to national or ethnic,

religious and linguistic minorities

26.The World Conference on Human Rights urges States and the

international community to promote and protect the rights of persons

belonging to national or ethnic, religious and linguistic minorities in

accordance with the Declaration on the Rights of Persons belonging

to National or Ethnic, Religious and Linguistic Minorities.

27.Measures to be taken, where appropriate, should include facilitation of

their full participation in all aspects of the political, economic, social,

religious and cultural life of society and in the economic progress and

development in their country.

3. The equal status and human rights of women

38.In particular, the World Conference on Human Rights stresses the

importance of working towards the elimination of violence against

women in public and private life, the elimination of all forms of sexual

harassment, exploitation and trafficking in women, the elimination of

gender bias in the administration of justice and the eradication of any

conflicts which may arise between the rights of women and the harmful

effects of certain traditional or customary practices, cultural prejudices

and religious extremism....Violations of the human rights of women in

situations of armed conflict are violations of the fundamental principles

of international human rights and humanitarian law. All violations of

this kind, including in particular murder, systematic rape, sexual slavery,

and forced pregnancy, require a particularly effective response.

4. The rights of the child 

48.The World Conference on Human Rights urges all States, with the

support of international cooperation, to address the acute problem of

children under especially difficult circumstances. Exploitation and

abuse of children should be actively combated, including by addressing

62
their root causes. Effective measures are required against female

infanticide, harmful child labor, sale of children and organs, child

prostitution, child pornography, as well as other forms of sexual abuse.

49.The World Conference on Human Rights supports all measures by the

United Nations and its specialized agencies to ensure the effective

protection and promotion of human rights of the girl child. The World

Conference on Human Rights urges States to repeal existing laws and

regulations and remove customs and practices which discriminate

against and cause harm to the girl child.

5. Freedom from torture

55.The World Conference on Human Rights emphasizes that one of the

most atrocious violations against human dignity is the act of torture,

the result of which destroys the dignity and impairs the capability of

victims to continue their lives and their activities.

56.The World Conference on Human Rights reaffirms that under human

rights law and international humanitarian law, freedom from torture is

a right which must be protected under all circumstances, including in

times of internal or international disturbance or armed conflicts.

60.States should abrogate legislation leading to impunity for those responsible

for grave violations of human rights, such as torture and prosecute such

violations, thereby providing a firm basis for the rule of law.

Enforced disappearances

62.The World Conference on Human Rights, welcoming the adoption by

the General Assembly of the Declaration on the Protection of All

Persons from Enforced Disappearance, calls upon all States to take

effective legislative, administrative, judicial or other measures to

prevent, terminate and punish acts of enforced disappearances. The

World Conference on Human Rights reaffirms that it is the duty of all

States, under any circumstances, to make investigations whenever

there is reason to believe that an enforced disappearance has taken

place on a territory under their jurisdiction and, if allegations are

confirmed, to prosecute its perpetrators.

6. The rights of disabled persons

63.The World Conference on Human Rights reaffirms that all human

rights and fundamental freedoms are universal and thus unreservedly

63
include persons with disabilities. Every person is born equal and has

the same rights to life and welfare, education and work, living

independently and active participation in all aspects of society. Any

direct discrimination or other negative discriminatory treatment of a

disabled person is therefore a violation of his or her rights. The World

Conference on Human Rights calls on Governments, where necessary,

to adopt or adjust to assure access to these and other rights for disabled

persons.

64.The place of disabled persons is everywhere. Persons with disabilities

should be guaranteed equal opportunity through the elimination of all

socially determined barriers, be they physical, financial, social or

psychological, which exclude or restrict full participation in society.

64
ORGANIZATION FOR SECURITY AND

COOPERATION IN EUROPE

Final Act of the Conference on Security and

Cooperation in Europe (Helsinki Final Act), 1975

Helsinki, August 1, 1975 

The States participating in the Conference on Security and Cooperation

in Europe issued a declaration on principles guiding relations between

participating states, including: I. Sovereign equality, respect for their rights

inherent in sovereignty; II. Refraining from the threat or use of force, III.

Inviolability of frontiers, IV. Territorial integrity of States, V. Peaceful

settlement of disputes, VI. Non-intervention in internal affairs, VII. Respect

for human rights and fundamental freedoms, including the freedom of thought,

conscience, religion or belief, VIII. Equal rights and self-determination of

peoples, IX. Cooperation among States, X. Fulfillment in good faith of

obligations under international law.

In a section on Human Contacts the participating States “make it their

aim to facilitate freer movement and contacts, individually and

collectively, whether privately or officially, among persons, institutions

and organizations of the participating States, and to contribute to the

solution of the humanitarian problems that arise in that connection.”

These include a. Contacts and regular meetings on the basis of family ties,

b. Reunification of families, c. Marriage between citizens of different

States, d. Travel for personal or professional reasons, e. Improvement of

conditions for tourism on an individual or collective basis, f. Meetings

among young people, g. Sport, h. Expansion of contacts.

In a section on Information the participating States “Make it their aim to

facilitate the freer and wider dissemination of information of all kinds, to

encourage cooperation in the field of information and the exchange of

information with other countries, and to improve the conditions under

which journalists from one participating State exercise their profession in

another participating State.” There follow sections on the improvement

of the circulation or access to, and exchange of oral information, printed

information and filmed and broadcast information. This section includes

cooperation in the field of information and improvement of working

conditions for journalists. 

Subsequent sections deal with cooperation and exchanges in the field of

culture and in the field of education. 

65
Provisions are included for unilateral, bilateral, and multilateral follow-up

conferences. 

Document of the Copenhagen Meeting

of the Conference on the Human Dimension 

of the CSCE, 1990

Copenhagen, June 29, 1990

The participating States welcome with great satisfaction the fundamental

political changes that have occurred in Europe since the first Meeting of

the Conference on the Human Dimension of the CSCE in Paris in 1989.

They note that the CSCE process has contributed significantly to

bringing about these changes and that these developments in turn have

greatly advanced the implementation of the provisions of the Final Act

and of other CSCE documents.

They recognize that pluralistic democracy and the rule of law are essential

for ensuring respect for all human rights and fundamental freedoms, the

development of human contacts and the resolution of other issues of a

related humanitarian character. They therefore welcome the

commitment expressed by all participating States to the ideals of

democracy and political pluralism as well as their common determination

to build democratic societies based on free elections and the rule of law....

In order to strengthen respect for, and enjoyment of, human rights and

fundamental freedoms, to develop human contacts and to resolve issues

of a related humanitarian character, the participating States agree on the

following:

I.

1. The participating States express their conviction that the protection

and promotion of human rights and fundamental freedoms is one of

the basic purposes of government, and reaffirm that the recognition of

these rights and freedoms constitutes the foundation of freedom,

justice and peace.

2. They are determined to support and advance those principles of

justice which form the basis of the rule of law. They consider that the

rule of law does not mean merely a formal legality which assures

regularity and consistency in the achievement and enforcement of

democratic order, but justice based on the recognition and full

acceptance of the supreme value of the human personality and

66
guaranteed by institutions providing a framework for its fullest

expression.

3. They reaffirm that democracy is an inherent element of the rule of

law. They recognize the importance of pluralism with regard to

political organizations.

4. They confirm that they will respect each other’s right freely to choose

and develop, in accordance with international human rights

standards, their political, social, economic and cultural systems. In

exercising this right, they will ensure that their laws, regulations,

practices and policies conform with their obligations under

international law and are brought into harmony with the provisions 

of the Declaration on Principles and other CSCE commitments.

5. They solemnly declare that among those elements of justice which are

essential to the full expression of the inherent dignity and of the equal

and inalienable rights of all human beings are the following:

5.1 – free elections that will be held at reasonable intervals by secret

ballot or by equivalent free voting procedure, under conditions

which will ensure in practice the free expression of the opinion

of the electors in their choice of their representatives;

5.2 – a form of government that is representative in character, in

which the executive is accountable to the elected legislature or

the electorate;

5.3 – the duty of the government and public authorities to comply

with the constitution and to act in a manner consistent with law; 

5.4 – a clear separation between State and political parties; in

particular, political parties will not be merged with the State;

5.5 – the activity of the government and the administration as well as

that of the judiciary will be exercised in accordance with the

system established by law;

5.6 – military forces and the police will be under control of, and

accountable to, the civil authorities;

5.7 – human rights and fundamental freedoms will be guaranteed by

law and in accordance with their obligations under international

law;

5.8 – legislation, adopted at the end of a public procedure, and

regulations will be published, that being the condition for their

applicability. Those texts will be accessible to everyone;

5.9 – all persons are equal before the law and are entitled without any

discrimination to the equal protection of the law. In this respect,

the law will prohibit any discrimination and guarantee to all

67
persons equal and effective protection against discrimination on

any ground;

5.10 – everyone will have an effective means of redress against

administrative decisions, so as to guarantee respect for

fundamental rights and ensure legal integrity;

5.11 – administrative decisions against a person must be fully justifiable

and must as a rule indicate the usual remedies available;

5.12 – the independence of judges and the impartial operation of the

public judicial service will be ensured;

5.13 – the independence of legal practitioners will be recognized and

protected, in particular as regards conditions for recruitment and

practice;

5.14 – the rules relating to criminal procedure will contain a clear

definition of powers in relation to prosecution and the measures

preceding and accompanying prosecution;

5.15 – any person arrested or detained on a criminal charge will have

the right, so that the lawfulness of his arrest or detention can be

decided, to be brought promptly before a judge or other officer

authorized by law to exercise this function;

5.16 – in the determination of any criminal charge against him, or of

his rights and obligations in a suit at law, everyone will be

entitled to a fair and public hearing by a competent,

independent and impartial tribunal established by law;

5.17 – any person prosecuted will have the right to defend himself in

person or through prompt legal assistance of his own choosing or,

if he does not have sufficient means to pay for legal assistance, to

be given it free when the interests of justice so require;

5.18 – no one will be charged with, tried for or convicted of any

criminal offense unless the offense is provided for by a law which

defines the elements of the offense with clarity and precision;

5.19 – everyone will be presumed innocent until proved guilty

according to law;

5.20 – considering the important contribution of international

instruments in the field of human rights to the rule of law at a

national level, the participating States reaffirm that they will

consider acceding to the International Covenant on Civil and

Political Rights, the International Covenant on Economic,

Social and Cultural Rights and other relevant international

instruments, if they have not yet done so; 

5.21 – in order to supplement domestic remedies and better to ensure

that the participating States respect the international obligations

they have undertaken, the participating States will consider

acceding to a regional or global international convention

concerning the protection of human rights, such as the European

68
Convention of Human Rights or the Optional Protocol to the

International Covenant on Civil and Political Rights, which

provide for procedures of individual recourse to international

bodies. 

6. The participating States declare that the will of the people, freely and

fairly expressed through periodic and genuine elections, is the basis of

the authority and legitimacy of all government. The participating

States will accordingly respect the right of their citizens to take part in

the governing of their country, either directly or through representatives

freely chosen by them, through fair electoral processes. They recognize

their responsibility to defend and protect in accordance with their laws,

their international human rights obligations and international

commitments, the democratic order freely established through the will

of the people against the activities of persons, groups or organizations

that engage in or refuse to renounce terrorism or violence aimed at

the overthrow of that order or of that of another participating State.

7. To ensure that the will of the people serves as the basis of the

authority of government, that participating State will:

7.1 – hold free elections at reasonable intervals, as established by law;

7.2 – permit all seats in at least one chamber of the national legislature

to be freely contested in a popular vote;

7.3 – guarantee universal suffrage to adult citizens;

7.4 – ensure that votes are cast by secret ballot or by equivalent free

voting procedure, and that they are counted and reported

honestly with the official results made public;

7.5 – respect the right of citizens to seek political or public office,

individually or as representatives of political parties or

organizations, without discrimination;

7.6 – respect the right of individuals and groups to establish, in full

freedom, their own political parties and organizations with the

necessary legal guarantees to enable them to compete with each

other on a basis of equal treatment before the law and by the

authorities;

7.7 – ensure that law and public policy work to permit political

campaigning to be conducted in a fair and free atmosphere in

which neither administrative action, violence nor intimidation

bars the parties and the candidates from freely presenting their

views and qualifications, or prevents the voters from learning and

discussing them or from casting their vote free of fear of retribution;

7.8 – provide that no legal or administrative obstacle stands in the way

of unimpeded access to the media on a non-discriminatory basis

69
for all political groupings and individuals wishing to participate

in the electoral process;

7.9 – ensure that candidates who obtain the necessary number of votes

required by law are duly installed in office and are permitted to

remain in office until their term expires or is otherwise brought

to an end in a manner that is regulated by law in conformity with

democratic parliamentary and constitutional procedures.

8. The participating States consider that the presence of observers both

foreign and domestic, can enhance the electoral process for States in

which elections are taking place. They therefore invite observers from

any other CSCE participating States and any appropriate private

institutions and organizations who may wish to do so to observe the

course of their national election proceedings, to the extent permitted

by law. They will also endeavor to facilitate similar access for election

proceedings held below the national level. Such observers will

undertake not to interfere in the electoral proceedings.

II

9. The participating States reaffirm that:

9.1 – everyone will have the right to freedom of expression including

the right to communication. This right will include freedom to

hold opinions and to receive and impart information and ideas

without interference by public authority and regardless of

frontiers. The exercise of this right may be subject only to such

restrictions as are prescribed by law and are consistent with

international standards. In particular, no limitation will be

imposed on access to, and use of, means of reproducing

documents of any kind, while respecting, however, rights relating

to intellectual property, including copyright;

9.2 – everyone will have the right of peaceful assembly and

demonstration. Any restrictions which may be placed on the

exercise of these rights will be prescribed by law and consistent

with international standards;

9.3 – the right of association will be guaranteed. The right to form 

and — subject to the general right of a trade union to determine

its own membership — freely join a trade union will be

guaranteed, subject to limitations prescribed by law and

consistent with international standards;

9.4 – everyone will have the right to freedom of thought, conscience

and religion. This right includes freedom to change one’s religion

or belief and to manifest one’s religion or belief, either alone or

70
in community with others, in public or in private, through

worship, teaching, practice and observance. The exercise of

these rights may be subject only to such restrictions as are

prescribed by law and are consistent with international

standards;

9.5 – they will respect the right of everyone to leave any country,

including his own, and to return to his country, consistent with a

State’s international obligations and CSCE commitments.

Restrictions on this right will have the character of very rare

exceptions, will be considered necessary only if they respond to

specific public need, pursue a legitimate aim and are

proportionate to that aim, and will not be abused or applied in

an arbitrary manner;

9.6 – everyone has the right peacefully to enjoy his property either on

his own or in common with others. No one may be deprived of

his property except in the public interest and subject to the

conditions provided for by law and consistent with international

commitments and obligations. 

10.In reaffirming their commitment to ensure effectively the rights of the

individual to know and act upon human rights and fundamental

freedoms, and to contribute actively, individually or in association

with others, to their promotion, the participating States express their

commitment to:

10.1 – respect the right of everyone, individually or in association with

others, to seek, receive and impart freely views and information

on human rights and fundamental freedoms, including the rights

to disseminate and publish such views and information;

10.2 – respect the rights of everyone, individually or in association with

others, to study and discuss the observance of human rights and

fundamental freedoms and to develop and discuss ideas for

improved protection of human rights and better means for

ensuring compliance with international human rights standards;

10.3 – ensure that individuals are permitted to exercise the right to

association, including the right to form, join and participate

effectively in non-governmental organizations which seek the

promotion and protection of human rights and fundamental

freedoms, including trade unions and human rights monitoring

groups; 

10.4 – allow members of such groups and organizations to have

unhindered access to and communication with similar bodies

within and outside their countries and with international

organizations, to engage in exchanges, contacts and cooperation

71
with such groups and organizations and to solicit, receive and

utilize for the purpose of promoting and protecting human rights

and fundamental freedoms, voluntary financial contributions

from national and international sources as provided for by law.

11.The participating States further affirm that, where violations of

human rights and fundamental freedoms are alleged to have occurred,

the effective remedies available include:

11.1 – the right of the individual to seek and receive adequate legal

assistance;

11.2 – the right of the individual to seek and receive assistance from

others in defending human rights and fundamental freedoms,

and to assist others in defending human rights and fundamental

freedoms;

11.3 – the right of individuals or groups acting on their behalf to

communicate with international bodies with competence to

receive and consider information concerning allegations of

human rights abuses.

12.The participating States, wishing to ensure greater transparency in the

implementation of the commitments undertaken in the Vienna

Concluding Document under the heading of the human dimension of

the CSCE, decide to accept as a confidence-building measure the

presence of observers sent by participating States and representatives

of non-governmental organizations and other interested persons at

proceedings before courts as provided for in national legislation and

international law and international commitments.

13.The participating States decide to accord particular attention to the

recognition of the rights of the child, his civil rights and his individual

freedoms, his economic, social and cultural rights, and his right to

special protection against all forms of violence and exploitation. They

will consider according to the Convention on the Rights of the Child,

if they have not yet done so, which was opened for signature by States

on January 26, 1990. They will recognize in their domestic legislation

the rights of the child as affirmed in the international agreements to

which they are parties.

14.The participating States agree to encourage the creation, within their

countries, of conditions for the training of students and trainees from

other participating States, including persons taking vocational and

technical courses. They also agree to promote travel by young people

from their countries for the purpose of obtaining education in other

72
participating States and to that end to encourage the conclusion,

where appropriate, of bilateral and multilateral agreements between

their relevant governmental institutions, organizations and

educational establishments.

15.The participating States will act in such a way as to facilitate the

transfer of sentenced persons and encourage those participating States

which are not Parties to the Convention on the Transfer of Sentenced

Persons, signed at Strasbourg on November 21, 1983, to consider

acceding to the Convention.

16.The participating States:

16.1 – reaffirm their commitment to prohibit torture and other cruel,

inhuman or degrading treatment or punishment, to take

effective legislative, administrative, judicial and other measures

to prevent and punish such practices, to protect individuals from

any psychiatric or other medical practices that violate human

rights and fundamental freedoms and to take effective measures

to prevent and punish such practices;

16.2 – intend, as a matter of urgency, to consider acceding to the

Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, if they have not yet done

so, and recognizing the competences of the Committee against

Torture under Articles 21 and 22 of the Convention and

withdrawing reservations regarding the competence of the

Committee under Article 20;

16.3 – stress that no exceptional circumstances whatsoever, whether a

state of war or a threat of war, internal political instability or any

other public emergency, may be invoked as a justification of

torture;

16.4 – will ensure that education and information regarding the

prohibition against torture are fully included in the training of

law enforcement personnel, civil or military, medical personnel,

public officials and other persons who may be involved in the

custody, interrogation or treatment of any individual subjected

to any form of arrest, detention or imprisonment;

16.5 – will keep under systematic review interrogation rules,

instructions, methods and practices as well as arrangements for

the custody and treatment of persons subjected to any form of

arrest, detention or imprisonment in any territory under their

jurisdiction, with the view of preventing any case of torture;

16.6 – will take up with priority for consideration and for appropriate

action, in accordance with the agreed measures and procedures

73
for the effective implementation of the commitments relating to

the human dimension of the CSCE, any cases of torture and

other inhuman and degrading treatment or punishment made

known to them through official channels or coming from any

other reliable source of information; 

16.7 – will act upon the understanding that preserving and

guaranteeing the life and security of any individual subjected to

any form of torture and other inhuman or degrading treatment or

punishment will be the sole criterion in determining the urgency

and priorities to be accorded in taking appropriate remedial

action; and, therefore, the consideration of any cases of torture

and other inhuman or degrading treatment or punishment

within the framework of any other international body or

mechanism may not be invoked as a reason for refraining from

consideration and appropriate action in accordance with the

agreed measures and procedures for the effective implementation

of the commitments relating to the human dimension of the

CSCE.

17.The participating States:

17.1 – recall the commitments undertaken in the Vienna Concluding

Document to keep the question of capital punishment under

consideration and to cooperate within relevant international

organizations;

17.2 – recall, in this context, the adoption by the General Assembly of

the United Nations, on December 15, 1989, of the Second

Optional Protocol to the International Covenant on Civil and

Political Rights, aiming at the abolition of the death penalty;

17.3 – note the restriction and safeguards regarding the use of the death

penalty which have been adopted by the international

community, in particular Article 6 of the International

Covenant on Civil and Political Rights;

17.4 – note the provisions of the Sixth Protocol to the European

Convention for the Protection of Human Rights and Fundamental

Freedoms, concerning the abolition of the death penalty;

17.5 – note recent measures taken by a number of participating States

towards the abolition of capital punishment;

17.6 – note the activities of several non-governmental organizations on

the question of the death penalty;

17.7 – will exchange information within the framework of the

Conference on the Human Dimension on the question of the

abolition of the death penalty and keep that question under

consideration;

74
17.8 – will make available to the public information regarding the use

of the death penalty; 

18.The participating States:

18.1 – note that the United Nations Commission on Human Rights has

recognized the right of everyone to have conscientious

objections to military service;

18.2 – note recent measures taken by a number of participating States

to permit exemption from compulsory military service on the

basis of conscientious objections;

18.3 – note the activities of several non-governmental organizations on

the question of conscientious objections to compulsory military

service;

18.4 – agree to consider introducing, where this has not yet been done,

various forms of alternative service, which are compatible with

the reasons for conscientious objection, such forms of alternative

service being in principle of a non-combatant or civilian nature,

in the public interest and of a non-punitive nature;

18.5 – will make available to the public information on this issue;

18.6 – will keep under consideration, within the framework of the

Conference on the Human Dimension, the relevant questions

related to the exemption from compulsory military service, where

it exists, of individuals on the basis of conscientious objections to

armed service, and will exchange information on these questions. 

19.The participating States affirm that freer movement and contacts

among their citizens are important in the context of the protection

and promotion of human rights and fundamental freedoms. They will

ensure that their policies concerning entry into their territories are

fully consistent with the aims set out in the relevant provisions of the

Final Act, the Madrid Concluding Document and the Vienna

Concluding Document. While reaffirming their determination not to

recede from the commitments contained in the CSCE documents,

they undertake to implement fully and improve present commitments

in the field of human contacts, including on a bilateral and

multilateral basis. In this context they will:

19.1 – strive to implement the procedures for entry into their

territories, including the issuing of visas and passport and

customs control, in good faith and without unjustified delay.

Where necessary, they will shorten the waiting time for visa

decisions, as well as simplify practices and reduce administrative

requirements for visa applications;

75
19.2 – ensure, in dealing with visa applications, that these are processed

as expeditiously as possible in order, inter alia, to take due

account of important family, personal or professional considerations,

especially in cases of an urgent, humanitarian nature;

19.3 – endeavor, where necessary to reduce fees charged in connection

with visa applications to the lowest possible level.

20.The participating States concerned will consult and, where

appropriate, cooperate in dealing with problems that might emerge as

a result of the increased movement of persons.

22.The participating States reaffirm that the protection and promotion

of the rights of migrant workers have their human dimension. In this

context they:

22.1 – agree that the protection and promotion of the rights of migrant

workers are the concern of all participating States and that as

such they should be addressed within the CSCE process;

22.2 – reaffirm their commitment to implement fully in their domestic

legislation the rights of migrant workers provided for in

international agreements to which they are parties;

22.3 – consider that, in future international instruments concerning the

rights of migrant workers, they should take into account the fact

that this issue is of importance for all of them;

22.4 – express their readiness to examine, at future CSCE meetings, the

relevant aspects of the further promotion of the rights of migrant

workers and their families. 

23.The participating States reaffirm their conviction expressed in the

Vienna Concluding Document that the promotion of economic,

social and cultural rights as well as of civil and political rights is of

paramount importance for human dignity and for the attainment of

the legitimate aspirations of every individual. They also reaffirm their

commitment taken in the Document of the Bonn Conference on

Economic Cooperation in Europe to the promotion of social justice

and the improvement of living and working conditions. In the context

of continuing their efforts with a view to achieving progressively the

full realization of economic, social and cultural rights by all appropriate

means, they will pay special attention to problems in the areas of

employment, housing, social security, health, education and culture. 

24.The participating States will ensure that the exercise of all the human

rights and fundamental freedoms set out above will not be subject to

any restrictions except those which are provided by law and are

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consistent with their obligations under international law, in particular

the International Covenant on Civil and Political Rights, and with

their international commitments, in particular the Universal

Declaration of Human Rights. These restrictions have the character

of exceptions. The participating States will ensure that these

restrictions are not abused and are not applied in an arbitrary manner,

but in such a way that the effective exercise of these rights is ensured.

Any restriction on rights and freedoms must, in a democratic

society, relate to one of the objectives of the applicable law and be

strictly proportionate to the aim of that law. 

25.The participating States confirm that the derogations from obligations

related to human rights and fundamental freedoms during a state of

public emergency must remain strictly within the limits provided for

by international law, in particular the relevant international

instruments by which they are bound, especially with respect to rights

from which there can be no derogation. They also reaffirm that:

25.1 – measures derogating from such obligations must be taken in

strict conformity with the procedural requirements laid down in

those instruments;

25.2 – the imposition of a state of public emergency must be proclaimed

officially, publicly, and in accordance with the provisions laid

down by law;

25.3 – measures derogating from obligations will be limited to the

extent strictly required by the exigencies of the situation;

25.4 – such measures will not discriminate solely on the grounds of race,

color, sex, language, religion, social origin or belonging to a

minority.

III.

26.The participating States recognize that vigorous democracy depends

on the existence as an integral part of national life of democratic

values and practices as well as an extensive range of democratic

institutions. They will therefore encourage, facilitate and, where

appropriate, support practical cooperative endeavors and the sharing

of information, ideas and expertise among themselves and by direct

contacts and cooperation between individuals, groups and

organizations in areas including the following:

– constitutional law, reform and development,

– electoral legislation, administration and observation,

– establishment and management of courts and legal systems, 

– the development of an impartial and effective public service where

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recruitment and advancement are based on a merit system,

– law enforcement,

– local government and decentralizations,

– access to information and protection of privacy,

– developing political parties and their role in pluralistic societies,

– free and independent trade unions,

– cooperative movements,

– developing other forms of free associations and public interest groups,

– journalism, independent media, and intellectual and cultural life,

– the teaching of democratic values, institutions and practices in

educational institutions and the fostering of an atmosphere of free

enquiry.

Such endeavors may cover the range of cooperation encompassed in

the human dimension of the CSCE, including training, exchange of

information, books and instructional materials, cooperative programs

and projects, academic and professional exchanges and conferences,

scholarships, research grants, provision of expertise and advice,

business and scientific contacts and programs.

27.The participating States will also facilitate the establishment and

strengthening of independent national institutions in the area of

human rights and the rule of law, which may also serve as focal points

for coordination and collaboration between such institutions in the

participating States. They propose that cooperation be encouraged

between parliamentarians from participating States, including

through existing inter-Parliamentary associations and, inter alia, joint

commissions, television debates involving parliamentarians, meetings

and round-table discussions. They will also encourage existing

institutions, such as organizations within the United Nations system

and the Council of Europe, to continue and expand the work they

have begun in this area.

IV.

30.The participating states recognize that the questions relating to

national minorities can only be satisfactorily resolved in a democratic

political framework based on the rule of law, with a functioning

independent judiciary. This framework guarantees full respect for

human rights and fundamental freedoms, equal rights and status for all

citizens, the free expression of all their legitimate interests and

aspirations, political pluralism, social tolerance and the

implementation of legal rules that place effective restraints on the

abuse of governmental power.

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They also recognize the important role of non-governmental

organizations, including political parties, trade unions, human rights

organizations and religious groups, in the promotion of tolerance,

cultural diversity and the resolution of questions relating to national

minorities.

They further reaffirm that respect for the rights of persons

belonging to national minorities as part of universally recognized

human rights is an essential factor for peace, justice, stability and

democracy in the participating States.

31.Persons belonging to national minorities have the right to exercise

fully and effectively their human rights and fundamental freedoms

without any discrimination and in full equality before the law.

The participating States will adopt, where necessary, special

measures for the purpose of ensuring to persons belonging to national

minorities full equality with the other citizens in the exercise and

enjoyment of human rights and fundamental freedoms. 

32.To belong to a national minority is a matter of a person’s individual

choice and no disadvantage may arise from the exercise of such

choice.

Persons belonging to national minorities have the right freely to

express, preserve and develop their ethnic, cultural, linguistic or

religious identity and to maintain and develop their culture in all its

aspects, free of any attempts at assimilation against their will. In

particular, they have the right:

32.1 – to use freely their mother tongue in private as well as public;

32.2 – to establish and maintain their own educational, cultural and

religious institutions, organizations or associations, which can

seek voluntarily financial or other contributions as well as public

assistance, in conformity with national legislation;

32.3 – to profess and practice their religion, including the acquisition,

possession and use of religious materials, and to conduct religious

educational activities in their mother tongue;

32.4 – to establish and maintain unimpeded contacts among themselves

within their country as well as contacts across frontiers with

citizens of other States with whom they share a common ethnic

or national origin, cultural heritage or religious beliefs; 

32.5 – to disseminate, have access to and exchange information in their

mother tongue;

32.6 – to establish and maintain organizations or associations within

their country and to participate in international nongovernmental organizations.

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Persons belonging to national minorities can exercise and enjoy their

rights individually as well as in community with other members of

their group. No disadvantage may arise for a person belonging to a

national minority on account of the exercise or non-exercise of any

such rights.

33.The participating States will protect the ethnic, cultural, linguistic

and religious identity of national minorities on their territory and

create conditions for the promotion of that identity. They will take

the necessary measures to that effect after due consultations, including

contacts with organizations or associations of such minorities, in

accordance with the decision-making procedures of each State. 

Any such measures will be in conformity with the principles of

equality and non-discrimination with respect to the other citizens of

the participating State concerned.

34.The participating States will endeavor to ensure that persons

belonging to national minorities, notwithstanding the need to learn

the official language or languages of the State concerned, have

adequate opportunities for instruction of their mother tongue or in

their mother tongue, as well as, wherever possible and necessary, for

its use before public authorities, in conformity with applicable

national legislation. In the context of the teaching of history and

culture in educational establishments, they will also take account of

the history and culture of national minorities.

35.The participating States will respect the right of persons belonging to

national minorities to effective participation in public affairs, including

participation in the affairs relating to the protection and promotion of

the identity of such minorities. The participating States note the efforts

undertaken to protect and create conditions for the promotion of the

ethnic, cultural, linguistic and religious identity of certain national

minorities by establishing, as one of the possible means to achieve these

aims, appropriate local or autonomous administrations corresponding

to the specific historical and territorial circumstances of such

minorities and in accordance with the policies of the State concerned.

36.The participating States recognize the particular importance of

increasing constructive cooperation among themselves on questions

relating to national minorities. Such cooperation seeks to promote

mutual understanding and confidence, friendly and good-neighborly

relations, international peace, security and justice. 

Every participating State will promote a climate of mutual respect,

understanding, cooperation and solidarity among all persons living on

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its territory, without distinction as to ethnic or national origin or

religion, and will encourage the solutions of problems through

dialogue based on the principles of the rule of law.

37.None of these commitments may be interpreted as implying any right

to engage in any activity or perform any action in contravention of

the purposes and principles of the Charter of the United Nations,

other obligations under international law or the provisions of the

Final Act, including the principle of territorial integrity of States.

38.The participating States, in their efforts to protect and promote the

rights of persons belonging to national minorities, will fully respect

their undertakings under existing human rights conventions and

other relevant international instruments and consider adhering to the

relevant conventions, if they have not yet done so, including those

providing for a right of complaint by individuals.

39.The participating States will cooperate closely in the competent

international organizations to which they belong, including the United

Nations and, as appropriate, the Council of Europe, bearing in mind their

on-going work with respect to questions relating to national minorities. 

40.The participating States clearly and unequivocally condemn

totalitarianism, racial and ethnic hatred, anti-semitism, xenophobia

and discrimination against anyone as well as persecution on religious

and ideological grounds. In this context, they also recognize the

particular problems of Roma (gypsies).

They declare their firm intention to intensify the efforts to combat these

phenomena in all their forms and therefore will:

40.1 – take effective measures, including the adoption, in conformity

with their constitutional systems and their international

obligations, of such laws as may be necessary, to provide protection

against any acts that constitute incitement to violence against

persons or groups based on national, racial, ethnic or religious

discrimination, hostility or hatred, including anti-semitism;

40.2 – commit themselves to take appropriate and proportionate means

to protect persons or groups who may be subject to threats or acts

of discrimination, hostility or violence as a result of their racial,

cultural, linguistic or religious identity, and to protect their

property;

40.3 – take effective measures, in conformity with their constitutional

systems, at the national, regional and local levels to promote

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understanding and tolerance, particularly in the fields of

education, culture and information;

40.4 – endeavor to ensure that the objectives of education include special

attention to the problem of racial prejudice and hatred and to the

development of respect for different civilizations and cultures;

40.5 – recognize the right of the individual to effective remedies and

endeavor to recognize, in conformity with national legislation,

the right of interested persons and groups to initiate and support

complaints against acts of discrimination, including racist and

xenophobic acts;

40.6 – consider adhering, if they have not yet done so, to the international

instruments which address the problem of discrimination and

ensure full compliance with the obligations therein, including

those relating to the submission of periodic reports;

40.7 – consider, also, accepting those international mechanisms which

allow States and individuals to bring communications relating to

discrimination before international bodies.

Charter of Paris for a New Europe —

CSCE Summit, 1990

Paris, November 21, 1990

We, the Heads of State or Government participating in the Conference

on Security and Cooperation in Europe, have assembled in Paris at a time

of profound change and historic expectations. The era of confrontation

and division of Europe has ended. We declare that henceforth our

relations will be founded on respect and cooperation.

Human rights, democracy and rule of law

We undertake to build, consolidate and strengthen democracy as the only

system of government of our nations. In this endeavor, we will abide by

the following:

Human rights and fundamental freedoms are the birthright of all human

beings, are inalienable and are guaranteed by law. Their protection and

promotion is the first responsibility of government. Respect for them is an

essential safeguard against an over-mighty State. Their observation and

full exercise are the foundation of freedom, justice and peace.

Democratic government is based on the will of the people, expressed

regularly through free and fair elections. Democracy has as its foundation

respect for the human person and the rule of law. Democracy is the best

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safeguard of freedom of expression, tolerance of all groups of society and

equality of opportunity for each person.

Democracy, with its representative and pluralist character, entails

accountability to the electorate, the obligation of public authorities to

comply with the law and justice administered impartially. No one will be

above the law.

We affirm that, without discrimination, every individual has the right to:

– freedom of thought, conscience and religion or belief, 

– freedom of expression, 

– freedom of association and peaceful assembly, 

– freedom of movement;

no one will be:

– subject to arbitrary arrest or detention,

– subject to torture or cruel, inhuman or degrading treatment or

punishment;

everyone also has the right:

– to know and act upon his rights, 

– to participate in free and fair elections, 

– to a fair and public trial if charged with an offense, 

– to own property alone or in association and to exercise individual

enterprise, 

– to enjoy his economic, social and cultural rights.

We affirm that the ethnic, cultural, linguistic and religious identity of

national minorities will be protected and that persons belonging to

national minorities have the right freely to express, preserve and develop

that identity without any discrimination and in full equality before the

law.

We will ensure that everyone will enjoy recourse to effective remedies,

national or international, against any violation of his rights.

Full respect for these precepts is the bedrock on which we will seek to

construct the new Europe.

Our States will cooperate and support each other with the aim of making

democratic gains irreversible.

83
Economic liberty and responsibility

Economic liberty, social justice and environmental responsibility are

indispensable for prosperity.

The free will of the individual, exercised in democracy and protected by

the rule of law, forms the necessary basis for successful economic and

social development. We will promote economic activity which respects

and upholds human dignity.

Freedom and political pluralism are necessary elements in our common

objective of developing market economies towards sustainable economic

growth, prosperity, social justice, expanding employment and efficient use

of economic resources. The success of the transition to market economy

by countries making efforts to this effect is important and in the interest

of us all. It will enable us to share a higher level of prosperity which is our

common objective. We will cooperate to this end.

Preservation of the environment is a shared responsibility of all our

nations. While supporting national and regional efforts in this field, we

must also look to the pressing need for joint action on a wider scale.

GUIDELINES FOR THE FUTURE

Human Dimension

Determined to foster the rich contribution of national minorities to the

life of our societies, we undertake further to improve their situation. We

reaffirm our deep conviction that friendly relations among our peoples, as

well as peace, justice, stability and democracy, require that the ethnic,

cultural, linguistic and religious identity of national minorities be

protected and conditions for the promotion of that identity be created.

We declare that questions related to national minorities can only be

satisfactorily resolved in a democratic political framework. We further

acknowledge that the rights of persons belonging to national minorities

must be fully respected as part of universal human rights....

We express our determination to combat all forms of racial and ethnic

hatred, anti-semitism, xenophobia and discrimination against anyone as

well as persecution on religious and ideological grounds.

In accordance with our CSCE commitments, we stress that free

movement and contacts among our citizens as well as the free flow of

84
information and ideas are crucial for the maintenance and development

of free societies and flourishing cultures. We welcome increased tourism

and visits among our countries.

Migrant Workers

We recognize that the issues of migrant workers and their families legally

residing in host countries have economic, cultural and social aspects as

well as their human dimension. We reaffirm that the protection and

promotion of their rights, as well as the implementation of relevant

international obligations, is our common concern. 

Non-governmental Organizations

We recall the major role that non-governmental organizations, religious

and other groups and individuals have played in the achievement of the

objectives of the CSCE and will further facilitate their activities for the

implementation of the CSCE commitments by the participating States.

These organizations, groups and individuals must be involved in an

appropriate way in the activities and new structures of the CSCE in order

to fulfill their important tasks.

Report of the CSCE Meeting of Experts on

National Minorities, Geneva, 1991

Geneva, July 19, 1991

The participating States will create conditions for persons belonging to

national minorities to have equal opportunity to be effectively involved

in the public life, economic activities, and building of their societies.

In accordance with Paragraph 31 of the Copenhagen Document, the

participating States will take the necessary measures to prevent discrimination

against individuals, particularly in respect of employment, housing and

education, on the grounds of belonging or not belonging to a national

minority. In that context, they will make provision, if they have not yet done

so, for effective recourse to redress for individuals who have experienced

discriminatory treatment on the grounds of their belonging or not belonging

to a national minority, including by making available to individual victims

of discrimination a broad array of administrative and judicial remedies.

The participating States are convinced that the preservation of the values

and of the cultural heritage of national minorities requires the

involvement of persons belonging to such minorities and that tolerance

85
and respect for different cultures are of paramount importance in this

regard. Accordingly, they confirm the importance of refraining from

hindering the production of cultural materials concerning national

minorities, including by persons belonging to them.

The participating States affirm that persons belonging to a national

minority will enjoy the same rights and have the same duties of

citizenship as the rest of the population.

The participating States reconfirm the importance of adopting, where

necessary, special measures for the purpose of ensuring to persons

belonging to national minorities full equality with other citizens in the

exercise and enjoyment of human rights and fundamental freedoms. They

further recall the need to take the necessary measures to protect the

ethnic, cultural, linguistic and religious identity of national minorities on

their territory and create conditions for the promotion of that identity;

any such measures will be in conformity with the principles of equality

and non-discrimination with respect to the other citizens of the

participating states concerned.

They recognize that such measures, which take into account, inter alia,

historical and territorial circumstances of national minorities, are

particularly important in areas where democratic institutions are being

consolidated and national minorities issues are of special concern.

Aware of the diversity and varying constitutional systems among them,

which make no single approach necessarily generally applicable, the

participating States note with interest that positive results have been

obtained by some of them in an appropriate democratic manner by, inter

alia:

– advisory and decision-making bodies in which minorities are

represented, in particular with regard to education, culture and religion;

– elected bodies and assemblies of national minority affairs;

– local and autonomous administration, as well as autonomy on a

territorial basis, including the exercise of consultative, legislative

and executive bodies chosen through free and periodic elections;

– self administration by a national minority of aspects concerning its

identity in situations where autonomy on a territorial basis does not

apply;

– decentralized or local forms of government;

– bilateral and multilateral agreements and other arrangements

regarding national minorities;

– for persons belonging to national minorities, provision of adequate

86
types and levels of education in their mother tongue with due regard

to the number, geographic settlement patterns and cultural

traditions of national minorities;

– funding the teaching of minority languages to the general public, as

well as the inclusion of minority languages in teacher-training

institutions, in particular in regions inhabited by persons belonging

to national minorities;

– in cases where instruction in a particular subject is not provided in

their territory in the minority language at all levels, taking the

necessary measures to find means of recognizing diplomas issued

abroad for a course of study completed in that language;

– creation of government research agencies to review legislation and

disseminate information related to equal rights and non-discrimination;

– provision of financial and technical assistance to persons belonging

to national minorities who so wish to exercise their right to establish

and maintain their own educational, cultural and religious

institutions, organizations and associations;

– governmental assistance for addressing local difficulties relating to

discriminatory practices (e.g. a citizens’ relations service);

– encouragement of grassroots community relations efforts between

minority communities, between majority and minority communities,

and between neighboring communities sharing borders, aimed at

helping to prevent local tensions from arising and address conflicts

peacefully should they arise; and

– encouragement of the establishment of permanent mixed

commissions, either inter-state or regional, to facilitate continuing

dialogue between the border regions concerned.

The participating States are of the view that these or other approaches,

individually or in combination, could be helpful in improving the

situation of national minorities on their territories.

V.

The participating States respect the right of persons belonging to national

minorities to exercise and enjoy their rights alone or in community with

others, to establish and maintain organizations and associations within their

country, and to participate in international non-governmental organizations.

The participating States reaffirm, and will not hinder the exercise of, the

right of persons belonging to national minorities to establish and

maintain their own educational, cultural and religious institutions,

organizations and associations.

87
In this regard, they recognize the major and vital role that individuals,

non-governmental organizations, and religious and other groups play in

fostering cross-cultural understanding and improving relations at all

levels of society, as well as across international frontiers.

They believe that the first-hand observations of such organizations and

individuals can be of a great value in promoting the implementation of

CSCE commitments relating to persons belonging to national minorities.

They therefore will encourage and not hinder the work of such

organizations, groups and individuals and welcome their contributions 

in this area.

VI.

The participating States, concerned by the proliferation of acts of racial,

ethnic and religious hatred, anti-semitism, xenophobia and discrimination,

stress their determination to condemn, on a continuing basis, such acts

against anyone.

In this context, they reaffirm their recognition of the particular problems

of Roma (gypsies). They are ready to undertake effective measures in

order to achieve full equality of opportunity between persons belonging

to Roma ordinarily resident in their State and the rest of the resident

population. They will also encourage research and studies regarding

Roma and the particular problems they face.

They will take effective measures to promote tolerance, understanding,

equality of opportunity and good relations between individuals of

different origins within their country.

Further, the participating States will take effective measures, including

the adoption, in conformity with their constitutional law and their

international obligations, if they have not already done so, of laws that

would prohibit acts that constitute incitement to violence based on

national, racial, ethnic or religious discrimination, hostility or hatred,

including anti-semitism, and policies to enforce such laws.

Moreover, in order to heighten public awareness of prejudice and hatred, to

improve enforcement of laws against hate-related crime and otherwise to

further efforts to address hatred and prejudice in society, they will make efforts

to collect, publish on a regular basis, and make available to the public, data

about crimes on their respective territories that are based on prejudice as to

race, ethnic identity or religion, including the guidelines used for the collection

of such data. These data should not contain any personal information.

88
They will consult and exchange views and information at the international

level, including at future meetings of the CSCE, on crimes that manifest

evidence of prejudice and hate.

VII. 

Convinced that the protection of the rights of persons belonging to

national minorities necessitates the free flow of information and

exchange of ideas, the participating states emphasize the importance of

communication between persons belonging to national minorities

without interference by public authorities and regardless of frontiers. The

exercise of such rights may be subject only to such restrictions as are

prescribed by law and are consistent with international standards. They

reaffirm that no one belonging to a national minority, simply by virtue of

belonging to such a minority, will be subject to penal or administrative

sanctions for having contacts within or outside his/her own country. 

In access to the media, they will not discriminate against anyone based

on ethnic, cultural, linguistic or religious grounds. They will make

information available that will assist the electronic mass media in taking

into account in their programs, the ethnic, cultural, linguistic and

religious identity of national minorities.

They reaffirm that establishment and maintenance of unimpeded

contacts among persons belonging to a national minority, as well as

contacts across frontiers by persons belonging to a national minority with

persons with whom they share a common ethnic or national origin,

cultural heritage or religious belief, contributes to mutual understanding

and promotes good neighborly relations.

They therefore encourage transfrontier cooperation arrangements on a

national, regional and local level, inter alia, on local border crossings, the

preservation of and visits to cultural and historical monuments and sites,

tourism, the improvement of traffic, the economy, youth exchange, the

protection of the environment and the establishment of regional commissions.

Document of the Moscow Meeting of the Conference

on the Human Dimension of the CSCE,1991

Moscow, October 3, 1991

The participating States emphasize that issues relating to human rights,

fundamental freedoms, democracy and the rule of law are of international

concern, as respect for these rights and freedoms constitutes one of the

89
foundations of the international order. They categorically and irrevocably

declare that the commitments undertaken in the field of the human

dimension of the CSCE are matters of direct and legitimate concern to

all participating States and do not belong exclusively to the internal

affairs of the State concerned. They express their determination to fulfill

all of their human dimension commitments and to resolve by peaceful

means any related issue, individually and collectively, on the basis of

mutual respect and cooperation. In this context they recognize that the

active involvement of persons, groups, organizations and institutions is

essential to ensure continuing progress in this direction. 

The participating States express their collective determination to further

safeguard human rights and fundamental freedoms and to consolidate

democratic advances in their territories. They also recognize a compelling

need to increase CSCE’s effectiveness in addressing human rights concerns

that arise in their territories at this time of profound change in Europe.

(The following section describes ways to strengthen and expand the

human dimension mechanism by preparing a resource list of experts who

may be called upon to address or contribute to the resolution of questions

relating to the human dimension of the CSCE through providing factfinding, mediation, or advisory services, ed.)

(18) The participating States recall their commitment to the rule of law

in the Document of the Copenhagen Meeting and affirm their

dedication to supporting and advancing those principles of justice

which form the basis of the rule of law. In particular, they again

reaffirm that democracy is an inherent element in the rule of law

and that pluralism is important in regard to political organizations.

(18.1) – Legislation will be formulated and adopted as a result of an open

process reflecting the will of the people, either directly or

through their elected representatives.

(18.2) – Everyone will have an effective means of redress against

administrative decision, so as to guarantee respect for

fundamental rights and ensure legal integrity.

(18.3) – To the same end, there will be effective means of redress against

administrative regulations for individuals affected thereby.

(18.4) – The participating States will endeavor to provide for judicial

review of such regulations and decisions.

(19) The participating States:

(19.1) – will respect the internationally recognized standards that relate

90
to the independence of judges and legal practitioners and the

impartial operation of the public judicial service including, inter

alia, the Universal Declaration of Human Rights and the

International Covenant on Civil and Political Rights; 

(19.2) – will, in implementing the relevant standards and commitments,

ensure that the independence of the judiciary is guaranteed and

enshrined in the constitution or the law of the country and is

respected in practice, paying particular attention to the Basic

Principles on the Independence of the Judiciary, which, inter

alia, provide for:

(i) prohibiting improper influence on judges;

(ii) preventing revision of judicial decisions by

administrative authorities, except for the rights of the

competent authorities to mitigate or commute sentences

imposed by judges, in conformity with the law;

(iii) protecting the judiciary’s freedom of expression and

association, subject only to such restrictions as are

consistent with its functions;

(iv) ensuring that judges are properly qualified, trained and

selected on a nondiscriminatory basis;

(v) guaranteeing tenure and appropriate conditions of

service, including on the matter of promoting judges,

where applicable;

(vi) respecting conditions of immunity;

(vii) ensuring that the disciplining, suspension and removal of

judges are determined according to law.

(20) For the promotion of the independence of the judiciary, the

participating States will:

(20.1) – recognize the important function national and international

associations of judges and lawyers can perform in strengthening

respect for the independence of their members and in providing

education and training on the role of the judiciary and the legal

profession in society; 

(20.2) – promote and facilitate dialogue, exchanges and cooperation

among national associations and other groups interested in

ensuring respect for the independence of the judiciary and the

protection of lawyers;

(20.3) – cooperate among themselves through, inter alia, dialogue,

contacts and exchanges in order to identify where problem areas

exist concerning the protection of the independence of judges

and legal practitioners and to develop ways and means to address

and resolve such problems;

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(20.4) – cooperate on an ongoing basis in such areas as the education and

training of judges and legal practitioners, as well as the

preparation and enactment of legislation intended to strengthen

respect for their independence and the impartial operation of the

public judicial service.

(21) The participating States will:

(21.1) – take all necessary measures to ensure that law enforcement

personnel, when enforcing public order, will act in the public

interest, respond to a specific need and pursue a legitimate aim,

as well as use ways and means commensurate with the

circumstances, which will not exceed the needs of enforcement;

(21.2) – ensure that law enforcement acts are subject to judicial control,

that law enforcement personnel are held accountable for such

acts, and that due compensation may be sought, according to

domestic law, by the victims of the acts found to be in violation

of the above commitments. 

(22) The participating States will take appropriate measures to ensure

that education and information regarding the prohibition of excess

force by law enforcement personnel as well as relevant international

and domestic codes of conduct are included in the training of such

personnel.

(23) The participating States will treat all persons deprived of their liberty

with humanity and with respect for the inherent dignity of the

human person and will respect the internationally recognized

standards that relate to the administration of justice and the human

rights of detainees.

(23.1) – The participating States will ensure that:

(i) no one will be deprived of his liberty except on such

grounds and in accordance with such procedures as are

established by law;

(ii) anyone who is arrested will be informed promptly in a

language which he understands of the reason for his

arrest, and will be informed of any charges against him;

(iii) any person who has been deprived of his liberty will be

promptly informed about his rights according to

domestic law;

(iv) any person arrested or detained will have the right to be

brought promptly before a judge or other officer

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authorized by law to determine the lawfulness of his

arrest or detention, and will be released without delay if

it is unlawful;

(v) anyone charged with a criminal offense will have the

right to defend himself in person or through legal

assistance of his own choosing or, if he has not sufficient

means to pay for legal assistance, to be given it free when

the interests of justice so require;

(vi) any person arrested or detained will have the right,

without undue delay, to notify or to require the

competent authority to notify appropriate persons of his

choice of his arrest, detention, imprisonment and

whereabouts; any restriction in the exercise of this right

will be prescribed by law and in accordance with

international standards;

(vii) effective measures will be adopted, if this has not already

been done, to provide that law enforcement bodies do

not take undue advantage of the situation of a detained

or imprisoned person for the purpose of compelling him

to confess, or otherwise incriminate himself, or to force

him to testify against any other person;

(ix) a detained person or his counsel will have the right to

make a request or complaint regarding his treatment, in

particular when torture or other cruel, inhuman or

degrading treatment has been applied, to the authorities

responsible for the administration of the place of

detention and to higher authorities, and when necessary,

to appropriate authorities vested with reviewing or

remedial power;

(x) such request or complaint will be promptly dealt with

and replied to without undue delay; if the request is

rejected or in case of inordinate delay, the complainant

will be entitled to bring it before a juridical or other

authority; neither the detained or imprisoned person nor

any complainant will suffer prejudice for making a

request or complaint.

(xi) anyone who has been the victim of an unlawful arrest or

detention will have a legally enforceable right to seek

compensation.

(23.2) – The participating States will:

(i) endeavor to take measures, as necessary, to improve the

conditions of individuals in detention or imprisonment; 

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(ii) pay particular attention to the question of alternatives to

imprisonment.

(24) The participating States reconfirm the right to the protection of

private and family life, correspondence and electronic

communications. In order to avoid any improper or arbitrary

intrusion by the State in the realm of the individual, which would be

harmful to any democratic society, the exercise of this right will be

subject only to such restrictions as are prescribed by law and are

consistent with internationally recognized human rights standards.

In particular, the participating States will ensure that searches and

seizures of persons and private premises and property will take place

only in accordance with standards that are judicially enforceable. 

(25) The participating States will:

(25.1) – ensure that their military and paramilitary forces, internal security

and intelligence services, and the police are subject to the

effective direction and control of the appropriate civil authorities;

(25.2) – maintain and, where necessary, strengthen executive control

over the use of military and paramilitary forces as well as the

activities of the internal security and intelligence services and

the police;

(25.3) – take appropriate steps to create, wherever they do not already

exist, and maintain effective arrangements for legislative

supervision of all such forces, services and activities.

(26) The participating States reaffirm the right to freedom of expression,

including the right to communication and the right of the media to

collect, report and disseminate information, news and opinions. Any

restriction in the exercise of this right will be prescribed by law and

in accordance with international standards. They further recognize

that independent media are essential to a free and open society and

accountable systems of government and are of particular importance

in safeguarding human rights and fundamental freedoms.

(26.1) – They consider that the print and broadcast media in their

territory should enjoy unrestricted access to foreign news and

information services. The public will enjoy similar freedom to

receive and impart information and ideas without interference

by public authority regardless of frontiers, including through

foreign publications and foreign broadcasts. Any restriction in

the exercise of this right will be prescribed by law and in

accordance with international standards.

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(26.2) – The participating States will not discriminate against

independent media with respect to affording access to

information, material and facilities.

(27) The participating States:

(27.1) – express their intention to cooperate in the field of constitutional,

administrative, commercial, civil and social welfare laws and

other relevant areas, in order to develop, particularly in states

where they do not yet exist, legal systems based on respect for

human rights, the rule of law and democracy.

(27.2) – to this end, envisage the continuation and enhancement of

bilateral and multilateral legal and administrative cooperation,

inter alia, in the following fields:

(i) development of an efficient administrative system;

(ii) assistance in formulating law and regulations;

(iii) training of administrative and legal staff;

(iv) exchange of legal works and periodicals.

(28) The participating States consider it important to protect human

rights and fundamental freedoms during a state of public emergency,

to take into account the relevant provisions of the Document of the

Copenhagen Meeting, and to observe the international conventions

to which they are parties.

(28.1) – The participating States reaffirm that a state of public emergency

is justified only by the most exceptional and grave circumstances,

consistent with the State’s international obligations and CSCE

commitments. A state of public emergency may not be used to

subvert the democratic constitutional order, nor aim at the

destruction of internationally recognized human rights and

fundamental freedoms. If recourse to force cannot be avoided, its

use must be reasonable and limited as far as possible.

(28.2) – A state of public emergency may be proclaimed only by a

constitutionally lawful body, duly empowered to do so. In cases

where the decision to impose a state of public emergency may be

lawfully taken by the executive authorities, that decision should

be subject to approval in the shortest possible time or to control

by the legislature.

(28.3) – The decision to impose a state of public emergency will be

proclaimed officially, publicly, and in accordance with provisions

laid down by law. The decision will, where possible, lay down

territorial limits of a state of public emergency. The State

concerned will make available to its citizens information, without

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delay, about which measures have been taken. The state of public

emergency will be lifted as soon as possible and will not remain in

force longer than strictly required by the exigencies of the situation.

(28.4) – A de facto imposition or continuation of a state of public

emergency not in accordance with provisions laid down by law is

not permissible.

(28.5) – The participating States will endeavor to ensure that the normal

functioning of the legislative bodies will be guaranteed to the

highest possible extent during a state of public emergency.

(28.6) – The participating States confirm that any derogation from

obligations relating to human rights and fundamental freedoms

during a state of public emergency must remain strictly within

the limits provided for by international law, in particular the

relevant international instruments by which they are bound,

especially with respect to rights from which there can be no

derogation.

(28.7) – The participating States will endeavor to refrain from making

derogations from those obligations from which, according to

international conventions to which they are parties, derogation

is possible under a state of public emergency. Measures

derogating from such obligations must be taken in strict

conformity with the procedural requirements laid down in those

instruments. Such measures will neither go further nor remain in

force longer than strictly required by the exigencies of the

situation; they are by nature exceptional and should be

interpreted and applied with restraint. Such measures will not

discriminate solely on the grounds of race, color, sex, language,

religion, social origin or of belonging to a minority. 

(28.8) – The participating States will endeavor to ensure that the legal

guarantees necessary to uphold the rule of law will remain in

force during a state of public emergency. They will endeavor to

provide in their law for control over the regulations related to

the state of public emergency, as well as the implementation of

such regulations.

(28.9) – The participating States will endeavor to maintain freedom of

expression and freedom of information, consistent with their

international obligations and commitments, with a view to

enabling public discussion on the observance of human rights

and fundamental freedoms as well as on the lifting of the state of

public emergency. They will, in conformity with international

standards regarding the freedom of expression, take no measures

aimed at barring journalists from the legitimate exercise of their

profession other than those strictly required by the exigencies of

the situation.

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(28.10)–When a state of public emergency is declared or lifted in a

participating State, the State concerned will immediately inform

the CSCE Institution of this decision, as well as of any derogation

made from the State’s international human rights obligations.

The Institution will inform the other participating States without

delay. (The Council will take the decision on the institution.)

(30) The participating States suggest that the appropriate CSCE fora

consider expanding the functions of the Office for Free Elections to

enable it to assist in strengthening democratic institutions within

the participating States. 

(31) The participating States acknowledge the extensive experience and

expertise of the Council of Europe in the field of human rights.

They welcome its contribution to strengthening democracy in

Europe, including its readiness to make its experience available to

the CSCE.

(32) The participating States reaffirm their enduring commitment to the

principles and provisions of the Final Act, the Vienna Concluding

Document, and other relevant CSCE documents in which they

undertook, inter alia, to respect human rights and fundamental

freedoms and to ensure that they are guaranteed for all without

distinction of any kind.

(33) The participating States will remove all legal and other restrictions

with respect to travel within their territories for their own nationals

and foreigners, and with respect to residence for those entitled to

permanent residence, except those restrictions which may be

necessary and officially declared for military, safety, ecological or

other legitimate government interests, in accordance with national

laws, consistent with CSCE commitments and international human

rights obligations. The participating States undertake to keep such

restrictions to a minimum.

(34) The participating States will adopt, where appropriate, all feasible

measures to protect journalists engaged in dangerous professional

missions, particularly in cases of armed conflict, and will cooperate

to that effect. These measures will include tracing missing

journalists, ascertaining their fate, providing appropriate assistance

and facilitating their return to their families.

(36) The participating States recall their commitment in the Vienna

Concluding Document to keep the question of capital punishment

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under consideration and reaffirm their undertakings in the Document

of the Copenhagen Meeting to exchange information on the

question of the abolition of the death penalty and to make available

to the public information regarding the use of the death penalty.

(36.1) They note:

(i) that the Second Optional Protocol to the International

Covenant on Civil and Political Rights aiming at the abolition

of the death penalty entered into force on July 11, 1991;

(ii) that a number of participating States have recently taken

steps towards the abolition of capital punishment;

(iii) the activities of several non-governmental organizations

concerning the question of the death penalty.

(38) The participating States recognize the need to ensure that the rights

of migrant workers and their families lawfully residing in the

participating States are respected and underline their right to express

freely their ethnic, cultural, religious and linguistic characteristics.

The exercise of such rights may be subject to such restrictions as are

prescribed by law and are consistent with international standards.

(38.1) – They condemn all acts of discrimination on the grounds of race,

color and ethnic origin, intolerance and xenophobia against

migrant workers. They will, in conformity with domestic law and

international obligations, take effective measures to promote

tolerance, understanding, equality of opportunity and respect for

the fundamental human rights of migrant workers and adopt, if

they have not already done so, measures that would prohibit acts

that constitute incitement to violence based on national, racial,

ethnic or religious discrimination, hostility and hatred.

(38.2) – They will adopt appropriate measures that would enable migrant

workers to participate in the life of the society of the

participating States;

(38.3) – They note that issues which concern the human dimension of

migrant workers residing on their territory could, as any other

issue of the human dimension, be raised under the human

dimension mechanism.

(39) The participating States will:

(39.1) – increase their preparedness and cooperate fully to enable

humanitarian relief operations to be undertaken speedily and

effectively;

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(39.2) – take all necessary steps to facilitate speedy and unhindered

access to the affected areas for such relief operations;

(39.3) – make the necessary arrangements for those relief operations to be

carried out.

(40) The participating States recognize that the full and true equality

between men and women is a fundamental aspect of a just and

democratic society and the welfare of all its members requires equal

opportunity for full and equal participating of men and women. In

this context they will:

(40.1) – ensure that all CSCE commitments relating to the protection

and promotion of human rights and fundamental freedoms are

applied fully and without discrimination with regard to sex; 

(40.2) – comply with the Convention on the Elimination of All Forms of

Discrimination against Women (CEDAW), if they are parties,

and, if they have not already done so, consider ratifying or acceding

to this Convention; States that have ratified or acceded to this

Convention with reservations will consider withdrawing them.

(40.4) – affirm that it is their goal to achieve not only de jure but de facto

equality of opportunity between men and women and to

promote effective measures to that end; 

(40.5) – establish or strengthen national machinery, as appropriate, for

the advancement of women in order to ensure that programs and

policies are assessed for their impact on women;

(40.6) – encourage measures effectively to ensure full economic

opportunity for women, including non-discriminatory

employment policies and practices, equal access to education

and training, and measures to facilitate combining employment

with family responsibilities for female and male workers; and will

seek to ensure that any structural adjustment policies or programs

do not have an adversely discriminatory effect on women;

(40.7) – seek to eliminate all forms of violence against women, and all

forms of traffic in women including by ensuring adequate legal

prohibitions against such acts and other appropriate measures;

(40.8) – encourage and promote equal opportunity for full participation

by women in all aspects of political and public life, in decisionmaking processes and in international cooperation in general;

(40.9) – recognize the vital role women and women’s organizations play

in national and international efforts to promote and enhance

women’s rights by providing, inter alia, direct services and

support to women and encouraging a meaningful partnership

between governments and those organizations for the purpose of

advancing equality for women;

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(40.10)– recognize the rich contribution of women to all aspects of

political, cultural, social and economic life and promote a broad

understanding of these contributions, including those made in

the informal and unpaid sectors;

(40.11)– take measures to encourage that information regarding women

and women’s rights under international and domestic law is

easily accessible;

(40.12)– develop educational policies, consistent with their constitutional

systems, to support the participation of women in all areas of

study and work, including non-traditional areas, and encourage

and promote a greater understanding of issues relating to equality

between men and women. 

(41) The participating States decide:

(41.1) – to ensure protection of the human rights of persons with disabilities;

(41.2) – to take steps to ensure the equal opportunity of such persons to

participate fully in the life of their society;

(41.5) – to encourage favorable conditions for the access of persons with

disabilities to public buildings and services, housing, transport,

and cultural and recreational activities.

(42) The participating States:

(42.1) – affirm that human rights education is fundamental and that it is

therefore essential that their citizens are educated on human

rights and fundamental freedoms and the commitment to respect

such rights and freedoms in domestic legislation and

international instruments to which they may be parties;

(42.5) – will encourage organizations and educational establishments to

cooperate in drawing up and exchanging human rights programs

at the national as well as the international level;

(43) The participating States will recognize as NGOs those which declare

themselves as such, according to existing national procedures, and

will facilitate the ability of such organizations to conduct their

activities freely on their territories; to that effect they will:

(43.1) – endeavor to seek ways of further strengthening modalities for

contacts and exchanges of views between NGOs and relevant

national authorities and governmental institutions; 

(43.2) – endeavor to facilitate visits to their countries by NGOs from

within any of the participating States in order to observe human

dimension conditions;

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(43.3) – welcome NGO activities, including inter alia, observing compliance

with CSCE commitments in the field of the human dimension;

(43. 4)– allow NGOs, in view of their important function within the

human dimension of the CSCE, to convey their views to their

own governments and the governments of all the other

participating States during the future work of the CSCE on the

human dimension.

Concluding Document of Helsinki — The Challenge

of Change, the Fourth Follow -Up Meeting, 1992

Helsinki, July 10, 1992

I. THE HELSINKI SUMMIT DECLARATION

Promises and Problems of Change

(1)We, the Heads of State or Government of the States participating in

the Conference on Security and Cooperation in Europe, have

returned to the birthplace of the Helsinki process, to give new

impetus to our common endeavor.

(6)We welcome the commitment of all participating States to our shared

values. Respect for human rights and fundamental freedoms, including

the rights of persons belonging to national minorities, democracy, the

rule of law, economic liberty, social justice and environmental responsibility

are our common aims. They are immutable. Adherence to our

commitments provides the basis for participation and cooperation in

the CSCE and a cornerstone for further development of our societies.

(7)We reaffirm the validity of the guiding principles and common values

of the Helsinki Final Act and the Charter of Paris, embodying the

responsibilities of States towards each other and of governments towards

their people. They are the collective conscience of our community.

We recognize our accountability to each other for complying with

them. We underline the democratic rights of citizens to demand from

their governments respect for these values and standards.

(8)We emphasize that the commitments undertaken in the field of the human

dimension of the CSCE are matters of direct and legitimate concern to

all participating States and do not belong exclusively to the internal affairs

of the State concerned. The protection and promotion of the human

rights and fundamental freedoms and thestrengthening of democratic

institutions continue to be a vital basis for our comprehensive security.

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(12) This is a time of promise but also a time of instability and insecurity.

Economic decline, social tension, aggressive nationalism,

intolerance, xenophobia and ethnic conflicts threaten stability in

the CSCE area. Gross violations of CSCE commitments in the field

of human rights and fundamental freedoms, including those related

to national minorities, pose a special threat to the peaceful

development of society, in particular in new democracies.

There is still much work to be done in building democratic, pluralistic

societies, where diversity is fully protected and respected in practice.

Consequently, we reject racial, ethnic and religious discrimination in

any form. Freedom and tolerance must be taught and practiced.

Helsinki Decisions

(In order to strengthen CSCE institutions and structures, meetings of

heads of State or Government were agreed to every two years. Review

Conferences will precede the meetings to prepare a decision-oriented

document to be adopted at the meeting. The CSCE Council was

designated the central decision-making and governing body of the CSCE.

Between meetings of the Council a Committee of Senior Officials (CSO)

is responsible for the overview, management, and coordination of the

organization and will act as the Council’s agent in taking appropriate

decisions. A series of implementation reviews were established to review

the implementation of CSCE commitments by member states.)

High Commissioner of National Minorities

(23) The Council will appoint a High Commissioner on National

Minorities. The High Commissioner provides “early warning” and,

as appropriate, “early action”, at the earliest possible stage in regard

to tensions involving national minority issues that have the

potential to develop into a conflict within the CSCE area, affecting

peace, stability, or relations between participating States. The High

Commissioner will draw upon the facilities of the Office for

Democratic Institutions and Human Rights (ODIHR) in Warsaw.

Mandate

(2) The High Commissioner will act under the aegis of the CSO and

will thus be an instrument of conflict prevention at the earliest

possible stage.

(3)The High Commissioner will provide “early warning” and, as appropriate

“early action” at the earliest possible stage in regard to tensions involving

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national minority issues which have not yet developed beyond an

early warning stage, but, in the judgment of the High Commissioner,

have the potential to develop into a conflict within the CSCE area,

affecting peace, stability or relations between participating States,

requiring the attention of and action by the Council or the CSO. 

(4)Within the mandate, based on CSCE principles and commitments,

the High Commissioner will work in confidence and will act

independently of all parties directly involved in the tensions.

(5)The High Commissioner will consider national minority issues

occurring in the State of which the High Commissioner is a national

or a resident, or involving a national minority to which the High

Commissioner belongs, only if all parties directly involved agree,

including the State concerned.

(a) The High Commissioner will not consider national minority issues

in situations involving organized acts of terrorism.

(b)Nor will the High Commissioner consider violations of CSCE

commitments with regard to an individual person belonging to a

national minority.

(6)In considering a situation, the High Commissioner will take fully into

account the availability of democratic means and international

instruments to respond to it, and their utilization by the parties

involved.

(7)When a particular national minority issue has been brought to the

attention of the CSO, the involvement of the High Commissioner

will require a request and a specific mandate from the CSO.

Early Warning

(11) The High Commissioner will:

(a) collect and receive information regarding national minority issues

from sources described below. (23-25)

(b)assess at the earliest possible stage the role of the parties directly

concerned, the nature of the tensions and recent developments

therein and, where possible, the potential consequences for peace

and stability within the CSCE area;

(c) to this end, be able to pay a visit, in accordance with paragraph

(17) and Supplement paragraphs (27-30), to any participating

State and communicate in person, subject to the provisions of

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paragraph (25), with parties directly concerned to obtain firsthand information about the situation of national minorities.

(12) The High Commissioner may during a visit to a participating

State, while obtaining first-hand information from all parties

directly involved, discuss the question with the parties, and where

appropriate promote dialogue, confidence and cooperation.

Provision of Early Warning

(13) If, on the basis of exchanges of communications and contacts with

relevant parties, the High Commissioner concludes that there is a

prima facie risk of potential conflict (as set out in Paragraph (3))

he/she may issue an early warning, which will be communicated

promptly by the Chairman-in-Office to the CSO.

(14) The Chairman-in-Office will include this early warning in the

agenda for the next meeting of the CSO. If a State believes that

such an early warning merits prompt consultation, it may initiate

the procedure set out in Annex 2 of the Summary of the

Conclusions of the Berlin Meeting of the Council (“Emergency

Mechanism”).

(15) The High Commissioner will explain to the CSO the reasons for

issuing the early warning.

Early Action

(16) The High Commissioner may recommend that he/she be

authorized to enter into further contact and closer consultations

with the parties concerned with a view to possible solutions,

according to a mandate to be decided by the CSO. The CSO may

decide accordingly.

Accountability

(17) The High Commissioner will consult the Chairman-in-Office

prior to a departure for a participating State to address a tension

involving national minorities. The Chairman-in-Office will

consult, in confidence, the participating State(s) concerned and

may consult more widely. 

(18) After a visit to a participating State, the High Commissioner will

provide strictly confidential reports to the Chairman-in-Office in

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the findings and progress of the High Commissioner’s involvement

in a particular question.

(19) After termination of the involvement of the High Commissioner in a

particular issue, the High Commissioner will report to the Chairmanin-Office on the findings, results and conclusions. Within a period of

one month the High Commissioner will report to the Chairman-inOffice on the findings, results and conclusions. Within a period of one

month, the Chairman-in-Office will consult in confidence, on the

findings, results and conclusions with the participating State(s)

concerned and may consult more widely. Thereafter the report,

together with possible comments, will be transmitted to the CSO.

(20) Should the High Commissioner conclude that the situation is

escalating into a conflict, or if the High Commissioner deems that the

scope for action by the High Commissioner is exhausted, the High

Commissioner shall, through the Chairman-in-Office, so inform

the CSO.

(21) Should the CSO become involved in a particular issue, the High

Commissioner will provide information and, on request, advice to

the CSO, or to any other institution or organization which the CSO

may invite, in accordance with the provisions of Chapter III of this

document, to take action with regard to the tensions or conflict.

(22) The High Commissioner, if so requested by the CSO and with due

regard to the requirement of confidentiality in his/her mandate,

will provide information about his/her activities at CSCE

implementation meetings on Human Dimension issues.

Sources of Information about National Minority Issues

(23) The High Commissioner may:

(a) collect and receive information regarding the situation of national

minorities and the role of parties involved therein from any source,

including the media and non-governmental organizations with the

exception referred to in Paragraph (25);

(b)receive specific reports from parties directly involved regarding

developments concerning national minority issues. These may

include reports on violations of CSCE commitments with respect

to national minorities as well as other violations in the context of

national minority issues.

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Parties Directly Concerned

(26) Parties directly concerned in tensions who can provide specific

reports to the High Commissioner and with whom the High

Commissioner will seek to communicate in person during a visit 

to a participating State are the following:

(a) governments of participating States, including, if appropriate,

regional and local authorities in areas in which national

minorities reside;

(b) representatives of associations, non-governmental organizations,

religious and other groups of national minorities directly concerned

and in the area of tension, which are authorized by the persons

belonging to those national minorities to represent them.

VI. THE HUMAN DIMENSION

(2)The participating States express their strong determination to ensure

full respect for human rights and fundamental freedoms, to abide by

the rule of law, to promote the principles of democracy and, in this

regard, to build, strengthen and protect democratic institutions, as

well as to promote tolerance throughout society. To these ends, they

will broaden the operational framework of the CSCE, including by

further enhancing the ODIHR, so that information, ideas, and

concerns can be exchanged in a more concrete and meaningful way,

including as an early warning of tension and potential conflict. In

doing so, they will focus their attention on topics in the Human

Dimension of particular importance. They will therefore keep the

strengthening of the Human Dimension under constant

consideration, especially in a time of change.

(The next section establishes the ODIHR as the main institution

for realizing Human Dimension initiatives, including serving as a

venue for bilateral meetings, being a channel of information on the

Human Dimension Mechanism, and conducting seminars and other

activities aimed at building democratic institutions.)

Enhanced Commitments and Cooperation in the Human Dimension

The participating States:

(23) Reaffirm in the strongest terms their determination to implement

in a prompt and faithful manner all their CSCE commitments,

including those contained in the Vienna Concluding Document,

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the Copenhagen Document and the Geneva Report, regarding

questions relating to national minorities and rights of persons

belonging to them;

(24) Will intensify in this context their efforts to ensure free exercise by

persons belonging to national minorities, individually or in

community with others, of their human rights and fundamental

freedoms, including the right to participate fully, in accordance

with the democratic decision-making procedures of each State, in

the political, economic, social and cultural life of their countries

including through democratic participation in decision-making

and consultative bodies at the national, regional and local level,

inter alia, through political parties and associations;

(25) Will continue through unilateral, bilateral and multilateral efforts

to explore further avenues for more effective implementation of

their relevant CSCE commitments, including those related to the

protection and the creation of conditions for the promotion of the

ethnic, cultural, linguistic and religious identity of national

minorities;

(26) Will address national minority issues in a constructive manner, by

peaceful means and through dialogue among all parties concerned

on the basis of CSCE principles and commitments;

(27) Will refrain from resettling and condemn all attempts, by threat or

use of force, to resettle persons with the aim of changing the

ethnic composition of areas within their territories.

Indigenous Populations 

The participating States:

(29) Noting that persons belonging to indigenous populations may

have special problems in exercising their rights, agree that their

CSCE commitments regarding human rights and fundamental

freedoms apply fully and without discrimination to such persons.

Tolerance and Non-discrimination

The participating States:

(30) Express their concern over recent and flagrant manifestations of

intolerance, discrimination, aggressive nationalism, xenophobia,

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anti-semitism and racism and stress the vital role of tolerance,

understanding and cooperation in the achievement and

preservation of stable democratic societies;

(32) Will consider adhering to the International Convention on the

Elimination of All Forms of Racial Discrimination, if they have

not already done so;

(33) Will consider taking appropriate measures within their constitutional

framework and in conformity with their international obligations to

assure to everyone on their territory protection against discrimination

on racial, ethnic and religious grounds, as well as to protect all

individuals, including foreigners, against acts of violence, including on

any of these grounds. Moreover, they will make full use of their domestic

legal processes, including enforcement of existing laws in this regard;

(34) Will consider developing programs to create the conditions for

promoting non-discrimination and cross-cultural understanding

which will focus on human rights education, grass-roots action,

cross-cultural training and research;

(35) Reaffirm, in this context, the need to develop appropriate programs

addressing problems of their respective nationals belonging to Roma

and other groups traditionally identified as Gypsies and to create

conditions for them to have equal opportunities to participate fully

in the life of society, and will consider how to cooperate to this end.

Migrant Workers

The Participating States:

(36) Restate that human rights and fundamental freedoms are

universal, that they are also enjoyed by migrant workers wherever

they live and stress the importance of implementing all CSCE

commitments on migrant workers and their families lawfully

residing in the participating States;

(37) Will encourage the creation of conditions to foster greater harmony

in relations between migrant workers and the rest of society of the

participating State in which they lawfully reside. To this end, they will

seek to offer, inter alia, measures to facilitate the familiarization of

migrant workers and their families with the languages and social life of

the respective participating State in which they lawfully reside so as to

enable them to participate in the life of the society of the host country;

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(38) Will, in accordance with their domestic policies, laws and international

obligations seek, as appropriate, to create the conditions for promoting

equality of opportunity in respect of working conditions, education,

social security and health services, housing, access to trade unions as

well as cultural rights for lawfully residing and working migrant workers.

Refugee and Displaced Persons

The participating States:

(39) Express their concern over the problem of refugees and displaced

persons;

(40) Emphasize the importance of preventing situations that may result

in mass flows of refugees and displaced persons and stress the need

to identify and address the root causes of displacement and

involuntary migration; 

(41) Recognize the need for international cooperation in dealing with

mass flows of refugees and displaced persons;

(42) Recognize that displacement is often a result of violations of CSCE

commitments, including those relating to the Human Dimension; 

(43) Reaffirm the importance of existing internal standards and

instruments related to the protection of and assistance to refugees

and will consider acceding to the Convention relating to the Status

of Refugees and the Protocol, if they have not already done so;

(44) Recognize the importance of the United Nations High Commissioner

for Refugees and the International Committee of the Red Cross, as

well as of non-governmental organizations involved in relief work,

for the protection of and assistance to refugees and displaced persons;

(45) Welcome and support unilateral, bilateral and multilateral efforts

to ensure protection of and assistance to refugees and displaced

persons with the aim of finding durable solutions.

International Humanitarian Law

The participating States:

(47) Recall that international humanitarian law is based upon the

inherent dignity of the human person;

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(48) Will in all circumstances respect and ensure respect for international

humanitarian law including the protection of the civilian population;

(49) Recall that those who violate international humanitarian law are

held personally accountable;

(50) Acknowledge the essential role of the International Committee of

the Red Cross in promoting the implementation and development

of international humanitarian law, including the Geneva

Conventions and their relevant Protocols.

Democracy at a Local and Regional Level

The participating States:

(53) Will endeavor, in order to strengthen democratic participation

and institution building and in developing cooperation among

them, to share their respective experience on the functioning of

democracy at a local and regional level, and welcome against this

background the Council of Europe information and education

network in this field;

Nationality

The participating States:

(55) Recognize that everyone has the right to a nationality and that no

one should be deprived of his/her nationality arbitrarily;

(56) Underline that all aspects of nationality will be governed by

process of law. They will, as appropriate, take measures, consistent

with their constitutional framework not to increase statelessness;

(57) Will continue within the CSCE the discussion on these issues.

Capital Punishment

The participating States:

(58) Confirm their commitments in the Copenhagen and Moscow

Documents concerning the question of capital punishment.

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COUNCIL OF EUROPE

Convention for the Protection of Human Rights and

Fundamental Freedoms, 1950, plus protocols

Rome, November 4, 1950; entered into force on September 3, 1953

Section I

Article 2

1. Everyone’s right to life shall be protected by law. No one shall be deprived

of his life intentionally save in the execution of a sentence of a court

following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention

of this article when it results from the use of force which is no more

than absolutely necessary:

a. in defense of any person from unlawful violence;

b. in order to effect a lawful arrest or to prevent the escape of a person

lawfully detained;

c. in action lawfully taken for the purpose of quelling a riot or

insurrection.

Article 3

1. No one shall be subjected to torture or to inhuman or degrading

treatment or punishment.

Article 4

1. No one shall be held in slavery or servitude.

2. No one shall be required to perform forced or compulsory labor.

3. For purpose of this article the term “forced or compulsory labor” shall

not include:

a. any work required to be done in the ordinary course of detention

imposed according to the provisions of Article 5 of this

Convention or during conditional release from such detention;

b. any service of a military character or, in case of conscientious

objectors in countries where they are recognized, service exacted

instead of compulsory military service;

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c. any service exacted in case of an emergency or calamity

threatening the life or well-being of the community;

d. any work or service which forms part of normal civic obligations.

Article 5

1. Everyone has the right to liberty and security of person. No one shall

be deprived of his liberty save in the following cases and in accordance

with a procedure prescribed by law:

a. the lawful detention of a person after conviction by a competent

court;

b. the lawful arrest or detention of a person for non-compliance with

the lawful order of a court or in order to secure the fulfillment of

any obligation prescribed by law;

c. the lawful arrest or detention of a person effected for the purpose of

bringing him before the competent legal authority on reasonable

suspicion of having committed an offense or when it is reasonably

considered necessary to prevent his committing an offense or

fleeing after having done so.

2. Everyone who is arrested shall be informed promptly, in a language

which he understands, of the reasons for his arrest and of any charge

against him.

3. Everyone arrested or detained in accordance with the provisions of

Paragraph 1. c of this article shall be brought promptly before a judge

or other officer authorized by law to exercise judicial power and shall

be entitled to trial within a reasonable time or to release pending trial.

Release may be conditioned by guarantees to appear for trial. 

4. Everyone who is deprived of his liberty by arrest or detention shall be

entitled to take proceedings by which the lawfulness of his detention

shall be decided speedily by a court and his release ordered if the

detention is not lawful.

5. Everyone who has been the victim of arrest or detention in

contravention of the provisions of this article shall have an

enforceable right to compensation.

Article 6 

1. In the determination of his civil rights and obligations or of any

criminal charge against him, everyone is entitled to a fair and public

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hearing within a reasonable time by an independent and impartial

tribunal established by law. Judgment shall be pronounced publicly but

the press and public may be excluded from all or part of the trial in the

interests of morals, public order or national security in a democratic

society, where the interests of juveniles or the protection of the private

life of the parties so require, or to the extent strictly necessary in the

opinion of the court in special circumstances where publicity would

prejudice the interests of justice.

2. Everyone charged with a criminal offense shall be presumed innocent

until proved guilty according to law.

3. Everyone charged with a criminal offense has the following minimum

rights: (a) “to be informed promptly, in a language which he

understands and in detail of the nature and cause of the accusation

against him; (b) to have adequate time and facilities for the

preparation of his defense; (c) to defend himself in person or through

legal assistance of his own choosing or, if he has not sufficient means

to pay for legal assistance, to be given it free when the interests of

justice so require; (d) to examine or have examined witnesses against

him and to obtain the attendance and examination of witnesses on his

behalf under the same conditions as witnesses against him; (e) to have

the free assistance of an interpreter if he cannot understand or speak

the language used in court.

Article 7 

1. No one shall be held guilty of any criminal offense on account of any

act or omission which did not constitute a criminal offense under

national or international law at the time when it was committed. Nor

shall a heavier penalty be imposed than the one that was applicable at

the time the criminal offense was committed.

Article 8

1. Everyone has the right to respect for his private and family life, his

home and his correspondence.

2. There shall be no interference by a public authority with the exercise

of this right except such as is in accordance with the law and is

necessary in a democratic society in the interests of national security,

public safety or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of health or morals,

or for the protection of the rights and freedoms of others.

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Article 9 

1. Everyone has the right to freedom of thought, conscience and religion;

this right includes freedom to change his religion or belief and freedom,

either alone or in community with others and in public or in private, to

manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to

such limitations as are prescribed by law and are necessary in a

democratic society in the interests of public safety, for the protection

of public order, health or morals, or for the protection of the rights and

freedoms of others.

Article 10

1. Everyone has the right to freedom of expression. This right shall

include freedom to hold opinions and to receive and impart

information and ideas without interference by public authority and

regardless of frontiers. This article shall not prevent States from

requiring the licensing of broadcasting, television or cinema

enterprises.

2. The exercise of these freedoms, since it carries with it duties and

responsibilities, may be subject to such formalities, conditions,

restrictions or penalties as are prescribed by law and are necessary in a

democratic society, in the interests of national security, territorial

integrity or public safety, for the prevention of disorder or crime, for

the protection of health or morals, for the protection of the reputation

or rights of others, for preventing the disclosure of information

received in confidence, or for maintaining the authority and

impartiality of the judiciary.

Article 11

1. Everyone has the right to freedom of peaceful assembly and to freedom

of association with others, including the right to form and to join trade

unions for the protection of his interests. 

2. No restrictions shall be placed on the exercise of these rights other

than such as are prescribed by law and are necessary in a democratic

society in the interests of national security or public safety, for the

prevention of disorder or crime, for the protection of health or morals

or for the protection of the rights and freedoms of others. This article

shall not prevent the imposition of lawful restrictions on the exercise

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of these rights by members of the armed forces, of the police or of the

administration of the State.

Article 12

Men and women of marriageable age have the right to marry and to found

a family, according to the national laws governing the exercise of this

right.

Article 13

Everyone whose rights and freedoms as set forth in this Convention are

violated shall have an effective remedy before a national authority

notwithstanding that the violation has been committed by persons acting

in an official capacity.

Article 14

The enjoyment of the rights and freedoms set forth in this Convention

shall be secured without discrimination on any ground such as sex, race,

color, language, religion, political or other opinion, national or social

origin, association with a national minority, property, birth or other status.

Article 15 allows derogation from these commitments in times of war or

other public emergency. The Secretary General of the Council of Europe

must be kept fully informed of the measures which have been taken and

the reasons for them.

Section II

Article 19, establishes the European Commission of Human Rights and

the European Court of Human Rights, described elsewhere.

Section III

Article 26 notes “The Commission may only deal with the matter after all

domestic remedies have been exhausted, according to the generally

recognized rules of international law, and within a period of six months

after the date on which the final decision was taken.” 

Article 27 says the Commission shall not deal with any petition submitted

anonymously, or which has already been examined by the Commission or has

already been submitted to another international investigation, or settlement,

or which the Commission believes constitutes an abuse of the right of petition.

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Articles 20-37, describe the Commission’s functioning. (Discussed below.)

Section IV

Articles 38-56, describe the Court’s functioning. (Discussed below.)

Protocols

Protocol 1 (1952, entered into force in 1954) deals with rights to property,

education, and free elections. Article 1 states “Every natural or legal

person is entitled to the peaceful enjoyment of his possessions. No one

shall be deprived of his possessions except in the public interest and

subject to the conditions provided for by law and by the general principles

of international law.” Article 2 states “No person shall be denied the right

to education.” Article 3 calls for “free elections at reasonable intervals by

secret ballot, under conditions which will ensure the free expression of the

opinion of the people in the choice of the legislature.”

Protocol 2 (1963, entered into force in 1970) gives the European Court of

Human Rights competence to give advisory opinions.

Protocol 4 (1963, entered into force in 1968) states in Article 1 “No one

shall be deprived of his liberty merely on the ground of inability to fulfill 

a contractual obligation.” Article 2 allows everyone “1. the liberty of

movement and freedom to choose his residence” and 2. “the liberty to

leave any country, including his own.” Article 3.1. states that “no one

shall be expelled by means either of an individual or of a collective

measure, from the territory of the State of which he is a national” and

Article 4 states “Collective expulsion of aliens is prohibited.” 

Protocol 6 (1983, entered into force in 1985) concerns abolition of the

death penalty. It notes a “general tendency in favor of abolition of the

death penalty” and in Article 1 states “The death penalty shall be

abolished. No one shall be condemned to such penalty or executed.”

Article 2 states “A State may make provision in its law for the death

penalty in respect of acts committed in time of war or of imminent 

threat of war; such penalty shall be applied only in the instances laid

down in the law and in accordance with its provisions. The State shall

communicate to the Secretary General of the Council of Europe the

relevant provisions of that law.”

Protocol 7 (1984, entered into force in 1988) states in Article 1 “An alien

lawfully resident in the territory of a State shall not be expelled therefrom

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except in pursuance of a decision reached in accordance with law and

shall be allowed:

(a) to submit reasons against his expulsion;

(b) to have his case reviewed; and

(c) to be represented for these purposes before the competent

authority or a person or persons designated by that authority.”

Article 2.1 states “Everyone convicted of a criminal offense by a tribunal

shall have the right to have his conviction or sentence reviewed by a

higher tribunal. The exercise of this right, including the grounds on

which it may be exercised, shall be governed by law.”

Article 4 states “1. No one shall be liable to be tried or punished again in

criminal proceedings under the jurisdiction of the same State for which he

has already been fully acquitted or convicted in accordance with the law

and penal procedure of that State.”

Article 5 states “Spouses shall enjoy equality of rights and responsibilities

of a private law character between them, and in their relations with their

children, as to marriage, during marriage and in the event of its dissolution.

This article shall not prevent States from taking such measures as are

necessary in the interests of the children.”

European Social Charter,1961, plus protocols

and revised charter

The Charter was signed at Turin, Italy, on October 18, 1961, and entered into force on

February 26, 1965

It notes that member States have established political rights and freedoms

in the European Convention for the Protection of Human Rights and

now are establishing a set of social rights. The Charter states:

“Considering that the enjoyment of social rights should be secured

without discrimination on grounds of race, color, sex, religion, political

opinion, national extraction or social origin” the governments agree that:

1. Everyone shall have the opportunity to earn his living in an

occupation freely entered upon.

2. All workers have the right to just conditions of work.

3. All workers have the right to safe and healthy working conditions.

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4. All workers have the right to a fair remuneration sufficient for a

decent standard of living for themselves and their families.

5. All workers and employers have the right to freedom of association in

national or international organizations for the protection of their

economic and social interests.

6. All workers and employers have the right to bargain collectively.

7. Children and young persons have the right to a special protection

against the physical and moral hazards to which they are exposed.

8. Employed women, in case of maternity, and other employed women as

appropriate, have the right to a special protection in their work.

9. Everyone has the right to appropriate facilities for vocational guidance

with a view to helping him choose an occupation suited to his

personal aptitude and interests.

10. Everyone has the right to appropriate facilities for vocational training.

11.Everyone has the right to benefit from any measures enabling him to

enjoy the highest possible standard of health attainable.

12.All workers and their dependents have the right to social security.

13.Anyone without adequate resources has the right to social and medical

assistance.

14.Everyone has the right to benefit from social welfare services.

15.Disabled persons have the right to vocational training, rehabilitation

and resettlement, whatever the origin and nature of their disability.

16.The family as a fundamental unit of society has the right to appropriate

social, legal and economic protection to ensure its full development.

17.Mothers and children, irrespective of marital status and family

relations, have the right to appropriate social and economic protection.

18.The nationals of any one of the Contracting Parties have the right to

engage in any gainful occupation in the territory of any one of the

others on a footing of equality with the nationals of the latter, subject

to restrictions based on cogent economic or social reasons.

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19.Migrant workers who are nationals of a Contracting Party and their

families have the right to protection and assistance in the territory of

any other Contracting Party.

An Additional Protocol to the European Social Charter signed in

Strasbourg on May 5, 1988 and entered into force in 1992 contains: 

Right to equal opportunities and equal treatment in matters of

employment and occupation without discrimination on the grounds of

sex; Right to information and consultation (for workers); Right to take

part in the determination and improvement of the working conditions

and working environment; Right of elderly persons to social protection.

Contracting Parties are required to submit reports on the application of

the Charter. This international supervision procedure was amended by a

Protocol adopted in 1991 and has already been partially implemented

following a decision by the Committee of Ministers asking the supervisory

bodies to apply it as far as possible before entry into force.

The Additional Protocol providing for a system of collective complaints,

adopted by the Committee of Ministers in 1995, will enter into force after

ratification by five member States of the Council of Europe. Its aim is to

increase the efficiency of the supervisory machinery of the Social Charter,

by providing that in addition to the current procedure of examination of

governmental reports, collective complaints alleging violations of the

Charter may be dealt with.

The European Social Charter has been revised in order to update and

extend its scope to new categories of rights. The revised Charter, adopted

by the Committee of Ministers in 1996, will enter into force after three

ratifications. The main innovations include:

– strengthening equality between women and men,

– the right of disabled persons to individual social integration, personal

independence and participation in the life of the community,

– strengthening the right of children and young persons to social, 

legal and economic protection,

– the right to protection in cases of dismissal,

– the right to dignity at work,

– the right of workers with family responsibilities to equal

opportunities and equal treatment,

– the right to protection against poverty and social exclusion,

– the right to adequate housing,

– a widening ban on discrimination. 

119
Resolution of the Parliamentary Assembly on the

Declaration on the Police,1979

Resolution 690 (1979) of the Parliamentary Assembly on the Declaration on the

Police was adopted by the Parliamentary Assembly on May 8, 1979

This important statement should be read in conjunction with UN Code

of Conduct for Law Enforcement Officials, 1979, and the Basic Principles

on the Use of Force and Firearms by Law Enforcement Officials, 1990.

This Assembly document states (Appendix A):

1. A police officer shall fulfill the duties the law imposes upon him by

protecting his fellow citizens and the community against violent,

predatory and other harmful acts, as defined by law.

2. A police officer shall act with integrity, impartiality and dignity. In

particular he shall refrain from and vigorously oppose all acts of

corruption.

3. Summary executions, torture and other forms of inhuman or degrading

treatment or punishment remain prohibited in all circumstances. A

police officer is under obligation to disobey or disregard any order or

instruction involving such measures.

4. A police officer shall carry out orders properly issued by his

hierarchical superior, but he shall refrain from carrying out any order

he knows, or ought to know, is unlawful. 

5. A police officer must oppose violations of the law. If immediate or

irreparable and serious harm should result from permitting the violation

to take place he shall take immediate action, to the best of his ability. 

6. If no immediate or irreparable and serious harm is threatened, he must

endeavor to avert the consequences of this violation, or its repetition,

by reporting the matter to his superiors. If no results are obtained in

that way he may report to higher authority. 

7. No criminal or disciplinary action shall be taken against a police

officer who has refused to carry out an unlawful order.

8. A police officer shall not cooperate in the tracing, arresting, guarding

or conveying of persons who, while not being suspected of having

committed an illegal act, are searched for, detained or prosecuted

because of their race, religion or political belief. 

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9. A police officer shall be personally liable for his own acts and for acts

of commission or omission he has ordered and which are unlawful.

10.There shall be a clear chain of command. It should always be possible

to determine which superior may be ultimately responsible for acts or

omissions of a police officer.

Additional articles state (12) “police may never use more force than is

reasonable.” (13) Police should “receive clear and precise instructions” on

the use of arms. (14) Police should assist persons in custody in obtaining

needed medical attention. 

Section B. on the status of police calls for proper professional training,

material conditions allowing police to properly perform their duties, fair

remuneration, the choice of whether to set up and join professional

organizations, and (Article 11) “The rights of a police officer before courts

or tribunals shall be the same as those of any other citizen.”

Recommendation of the Committee of Ministers

to Member States Concerning Custody Pending

Trial, 1980

Adopted by the Committee of Ministers on June 27, 1980

I. General principles

1. Being presumed innocent until proved guilty, no person charged with

an offense shall be placed in custody pending trial unless the

circumstances make it strictly necessary. Custody pending trial shall

therefore be regarded as an exceptional measure and it shall never be

compulsory nor be used for punitive reasons.

II. Principles applicable to decisions on custody pending trial

2. A person charged with an offense and deprived of his liberty shall be

brought promptly before a judge or other person authorized by law to

exercise judicial power.

When the person concerned is brought before the judicial authority,

the decision concerning custody shall be taken without delay.

3. Custody pending trial may be ordered only if there is reasonable

suspicion that the person concerned has committed the alleged

offense, and if there are substantial reasons for believing that one or

more of the following grounds exist:

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– danger of his absconding,

– danger of his interfering with the course of justice,

– danger of his committing a serious offense.

5. In considering whether custody should be ordered, the judicial

authority shall have regard to the circumstances of the individual case,

and in particular to such of the following factors as may be relevant:

– the nature and seriousness of the alleged offense,

– the strength of the evidence of the person concerned having

committed the offense,

– the penalty likely to be incurred in the event of conviction,

– the character, antecedents and personal and social circumstances

of the person concerned, and in particular his community ties,

– the conduct of the person concerned, especially how he has

fulfilled any obligations which may have been imposed on him in

the course of previous criminal proceedings.

10.The person concerned shall be entitled to be legally represented before

the judicial authority on any occasion when the question of custody

pending trial arises or is likely to arise.

If custody pending trial is ordered he shall as soon as practicable be

granted legal aid if his means are insufficient.

III. Principles applicable to alternative measures

15.When examining whether custody pending trial can be avoided, the

judicial authority shall consider all available alternative measures,

which may include the following:

– a promise of the person concerned to appear before the judicial

authority as and when required and not to interfere with the

course of justice,

– a requirement to reside at a specified address (e.g. the home, a

bail hostel, a specialized institution for young offenders, etc.)

under conditions laid down by the judicial authority,

– a restriction on leaving or entering a specified place or district

without authorization,

– an order to report periodically to certain authorities (e.g. court,

police, etc.),

– surrender of passport or their identification papers,

– provision of bail or other forms of security by the person

concerned, having regard to his means,

– provision of surety,

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– supervision and assistance by an agency nominated by the

judicial authority.

Such measures shall be notified in writing and shall be clearly explained

to the person concerned, who shall also be warned that he might be taken

into custody if he fails to comply with them.

Declaration on Freedom of Expression

and Information,1982

This declaration was adopted by the Committee of Ministers on April 29, 1982

It states (4) “that the freedom of expression and information is necessary

for the social, economic, cultural and political development of every

human being, and constitutes a condition for the harmonious progress of

social and cultural groups, nations and the international community.”

It states (5) “the continued development of information and

communication technology should serve to further the right, regardless 

of frontiers, to express, to seek, to receive and to impart information,

whatever their source.”

(6) “States have the duty to guard against infringements of the freedom of

expression and information and should adopt policies designed to foster as

much as possible a variety of media and a plurality of information sources,

thereby allowing a plurality of ideas and opinions.” 

The following objectives are set forth for states to follow in the field of

information and mass media (II):

(a) protection of the right of everyone, regardless of frontiers, to

express himself, to seek and receive information and ideas,

whatever their source, as well as to impart them under the

conditions set out in Article 10 of the European Convention on

Human Rights; 

(b)absence of censorship or any arbitrary controls or constraints on

participants in the information process, on media content or on

the transmission and dissemination of information;

(c) the pursuit of an open information policy in the public sector,

including access to information, in order to enhance the

individual’s understanding of, and his ability to discuss freely,

political, social, economic and cultural matters;

(d)the existence of a wide variety of independent and autonomous

media, permitting the reflection of diversity of ideas and opinions;

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(e) the availability and access on reasonable terms to adequate

facilities for the domestic and international transmission and

dissemination of information and ideas;

(f) the promotion of international cooperation and assistance,

through public and private channels, with a view to fostering the

free flow of information and improving communication

infrastructures and expertise.

Participants (III) resolve to intensify cooperation in order:

(a) to defend the right of everyone to the exercise of the freedom of

expression and information; (b) to promote, through teaching and

education, the effective exercise of the freedom of expression and

information; (c) to promote the free flow of information (d) to share

experience in the media field and (e) to use new information and

communication techniques...to broaden the scope of freedom of

expression and information.

Recommendation of the Committee of Ministers to

Member States on the European Prison Rules,1987

This Recommendation, No. R (87) 3, was adopted by the Committee of Ministers on

February 12, 1987

Part I

The basic principles

1. The deprivation of liberty shall be effected in material and moral

conditions which ensure respect for human dignity and are in

conformity with these rules.

2. The rules shall be applied impartially. There shall be no discrimination

on grounds of race, color, sex, language, religion, political or other

opinion, national or social origin, birth, economic or other status. The

religious beliefs and moral precepts of the group to which a prisoner

belongs shall be respected.

3. The purpose of the treatment of persons in custody shall be such as to

sustain their health and self-respect and, so far as the length of

sentence permits, to develop their sense of responsibility and

encourage those attitudes and skills that will assist them to return to

society with the best chance of leading law-abiding and self-supporting

lives after their release.

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4. There shall be regular inspections of penal institutions and services by

qualified and experienced inspectors appointed by a competent

authority. Their task shall be, in particular, to monitor whether and to

what extent these institutions are administered in accordance with

existing laws and regulations, the objectives of the prison services and

the requirements of these rules.

5. The protection of the individual rights of prisoners with special regard

to the legality of the execution of detention measures shall be secured

by means of a control carried out, according to national rules, by a

judicial authority or other duly constituted body authorized to visit the

prisoners and not belonging to the prison administration.

Part II

The management of prison 

The allocation and classification of prisoners

11.1 In allocating prisoners to different institutions or regimes, due

account shall be taken of their judicial and legal situation (untried

or convicted prisoner, first offender or habitual offender, short

sentence or long sentence), of the special requirements of their

treatment, of their medical needs, their sex and age.

11.2 Males and females shall in principle be detained separately,

although they may participate together in organized activities as

part of an established treatment program.

11.3 In principle, untried prisoners shall be detained separately from

convicted prisoners unless they consent to being accommodated or

involved together in organized activities beneficial to them.

11.4 Young prisoners shall be detained under conditions which as far as

possible protect them from harmful influences and which take

account of their needs peculiar to their age.

12.The purpose of classification or re-classification of prisoners shall be:

a. to separate from others those prisoners who, by reasons of their

criminal records or their personality, are likely to benefit from that

or who may exercise a bad influence.

Accommodation

14.1 Prisoners shall normally be lodged during the night in individual

cells except in cases where it is considered that there are

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advantages in sharing accommodation with other prisoners.

14.2 Where accommodation is shared it shall be occupied by prisoners

suitable to associate with others in those conditions. There shall be

supervision by night, in keeping with the nature of the institution.

15.The accommodation provided for prisoners, and in particular all

sleeping accommodation, shall meet the requirements of health and

hygiene, due regard being paid to climactic conditions and especially

the cubic content of air, a reasonable amount of space, lighting, heat

and ventilation.

16.In all places where prisoners are required to live or work:

a. the windows shall be large enough to enable all prisoners, inter

alia, to read or work by natural light in normal conditions. They

shall be so constructed that they can allow the entrance of fresh 

air except where there is an adequate air conditioning system.

Moreover, the windows shall, with due regards to security

requirements, present in their size, location and construction as

normal an appearance as possible;

b. artificial light shall satisfy recognized technical standards.

17.The sanitary installations and arrangements for access shall be

adequate to enable every prisoner to comply with the needs of nature

when necessary and in clean and decent conditions.

18.Adequate bathing and showering installations shall be provided so

that every prisoner may be enabled and required to have a bath or

shower, at a temperature suitable to the climate, as frequently as

necessary for general hygiene according to season and geographic

region, but at least once a week. Wherever possible there should be

free access at all reasonable times.

19.All parts of an institution shall be properly maintained and kept clean

at all times.

(Additional sections deal with personal hygiene, clothing and bedding,

food, medical services, discipline and punishment, instruments of

restraint, information to, and complaints by, prisoners, contact with the

outside world, religious and moral assistance, retention of prisoners’

property, notification of death, illness, transfer, etc. and removal of

prisoners.) 

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Recommendation of the Committee of Ministers to

Member States Regarding Conscientious Objection

to Compulsory Military Service, 1987

This Recommendation, No. R (87) 8, was adopted by the Committee of Ministers on

April 9, 1987

It notes “in some member states where conscientious objection to

compulsory military service is not yet recognized, specific measures have

been taken with a view to improving the situation of individuals

concerned.” 

It recommends “that the governments of member states, in so far as they

have not already done so, bring their national law and practice into line”

with the following basic principle:

1. Anyone liable to conscription for military service, who, for compelling

reasons of conscience, refuses to be involved in the use of arms, shall have

the right to be released from the obligation to perform such service, on

the conditions set out hereafter. Such persons may be liable to perform

alternative service. 

Under alternative service (C.9) “in addition to civilian service, the state

may also provide for unarmed military service, assigning to it only those

conscientious objectors whose objections are restricted to the personal use

of arms.” (10) “Alternative service shall not be of a punitive nature. Its

duration shall, in comparison to that of military service, remain within

reasonable limits.” (11) “Conscious objectors performing alternative

service shall not have less social and financial rights than persons performing

military service. Legislative provisions or regulations or regulations which

relate to the taking into account of military service for employment,

career or pension purposes shall apply to alternative service.”

European Convention for the Prevention of 

Torture and Inhuman or Degrading Treatment or

Punishment, 1987

This Convention was passed on November 26, 1987 and entered into force on

February 1, 1987

It provides a non-judicial mechanism of a preventative character with a

view to strengthening, if necessary, the protection of persons deprived of

their liberty against torture and inhuman or degrading treatment or

punishment.

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The Committee set up under the 1987 Convention, which is composed of

persons of a variety of backgrounds, is entitled to visit any place where such

persons are held by a public authority in order to examine their treatment.

Under the 1987 Convention, the Committee has unlimited access to any

place of detention, including the right to move inside such places without

restriction. It may interview in private persons deprived of their liberty

and communicate freely with any person whom it believes can supply

relevant information.

The information gathered by the Committee in relation to a visit, its

report and its consultations with the State concerned are confidential,

unless the State requests that it be made public.

Cooperation with the competent national authorities is one of the guiding

principles recognized by the Convention. Nevertheless, if a country fails to

cooperate or refuses to improve the situation in the light of the Committee’s

recommendations, the Committee may decide to make a public statement.

Declaration on Equality of Women and Men, 1988

Adopted by the Committee of Ministers on November 16, 1988, 83rd Session

The Council of Europe member states,

1. Recalling that equality of women and men is a principle of human

rights, upheld as a fundamental right in many international

instruments to which they have subscribed and secured by national

constitutions and laws:

2. Mindful of their undertaking, by virtue of the Statute of the Council of

Europe, to observe such fundamental rights:

3. Convinced that the betterment and progress of humanity absolutely

depend on due consideration of the aspirations, interests and talents of

both sexes:

4. Observing that in present-day society inequalities between women

and men persist de jure and de facto:

5. Aware that sex-related discrimination in the political, economic,

social, educational, cultural, and any other fields constitutes

impediments to the recognition, enjoyment and exercise of human

rights and fundamental freedoms:

128
6. Convinced that resolute overall policies should be pursued for the

effective achievement of equality between women and men, such

policies to involve the authorities, groups and individuals:

I.

Reaffirm their commitment to the principle of equality of women and

men, as a sine qua non of democracy and an imperative of social justice:

II.

Condemn all forms of sexism, as they have the effect of perpetuating the

idea of superiority or inferiority of one of the sexes, and justifying the

preponderance or dominance of one over the other:

III.

Deplore the under-utilization of human resources by the community

resulting from the persistence of sexist attitudes and behavior patterns:

IV.

Welcome past and present activities aimed at the achievement of equal

rights and opportunities for women and men at worldwide, regional and

national levels:

V.

Assert their resolve and understanding:

a. to pursue and develop policies aimed at achieving real equality

between women and men in all walks of life;

b. to continue work in the Council of Europe to further the effective

achievement of equality between women and men;

c. to promote awareness of the imperatives of democracy and human

rights in respect of equality of women and men:

VI.

Declare that the strategies to be applied for this purpose must enable

women and men to receive equal treatment under the law and equal

opportunities to exercise their rights and develop their individual gifts and

talents. These strategies should provide for suitable measures — including

temporary special measures aimed at accelerating de facto equality between

women and men — relating to the following in particular:

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a. protection of individual rights;

b. participation in political, economic, social and cultural life;

c. access to all levels of the civil service;

d. access to education and freedom of choice in education and initial

and further vocational training;

e. rights of couples;

f. eradication of violence in the family and in society;

g. rights and duties with regard to children;

h. access to all professions, occupational advancement, and

remuneration;

i. promotion of economic independence;

j. access to information;

VII.

Stress the importance for the achievement of the above-mentioned

strategies of informing and educating people in a suitable way, and making

them realize the injustices and adverse effects of inequalities of rights,

treatment and opportunities, together with the need for unrelenting

vigilance in order to prevent or remedy any act or form of discrimination

founded on sex:

VIII.

Invite the member states not yet having done so to be parties:

a. to Protocol No. 7 to the Convention for the Protection of Human

Rights and Fundamental Freedoms and to the European Social

Charter and its additional Protocol:

b. to the United Nations Convention on the Elimination of All

Forms of Discrimination against Women:

and to apply the Nairobi Forward-looking Strategies for the Advancement

of Women adopted by the World Conference to Review and Appraise the

Achievements of the United Nations Decade for Women: Equality,

Development and Peace (Nairobi, Kenya, 15-26 July 1985).

Declaration and Plan of Action on Combating

Racism, Xenophobia, Anti-semitism and Intolerance

Adopted by the first summit of chiefs of state and government, October 9, 1993

We, Heads of State and Government of the Council of Europe member

states,

130
Convinced that the diversity of traditions and cultures has for centuries

been one of Europe’s riches and that the principle of tolerance is the

guarantee of the maintenance in Europe of an open society respecting the

cultural diversity to which we are attached;

Convinced that to bring about a democratic and pluralist society respecting

the equal dignity of all human beings remains one of the prime objectives

of European construction;

Alarmed by the present resurgence of racism, xenophobia and antisemitism, the development of a climate of intolerance, the increase in acts

of violence, notably against migrants and people of immigrant origin, and

degrading treatment and discriminatory practices accompanying them;

Equally alarmed by the development of aggressive nationalism and

ethnocentrism which constitute new expressions of xenophobia;

Concerned at the deterioration of the economic situation, which threatens

the cohesion of European societies by generating forms of exclusion likely

to foster social tensions and manifestations of xenophobia;

Convinced that these manifestations of intolerance threaten democratic

societies and their fundamental values and undermine the foundations of

European construction;

Reaffirming the values of solidarity which must inspire all members of

society in order to reduce marginilization and social exclusion;

– Condemn in the strongest possible terms racism in all its forms,

xenophobia, anti-semitism and intolerance and all forms of religious

discrimination;

– Encourage member States to continue efforts already undertaken to

eliminate these phenomena, and commit ourselves to strengthening

national laws and international instruments and taking appropriate

measures at national and European levels;

– Undertake to combat all ideologies, policies and practices constituting an

incitement to racial hatred, violence and discrimination, as well as any

action or language likely to strengthen fears and tensions between groups

from different racial, ethnic, national, religious or social backgrounds;

– Launch an urgent appeal to European peoples, groups and citizens,

and young people in particular, that they resolutely engage in

combating all forms of intolerance and that they actively participate

in the construction of a European society based on common values,

characterized by democracy, tolerance and solidarity.

131
(A five-point Plan of Action follows, including a European Youth

Campaign, inviting member States to reinforce legislative guarantees against

all forms of discrimination, establish a committee of governmental experts

to review member States’ legislation and prepare policy recommendations

for member States, promote educational programs on human rights and

cultural diversity, and request media professionals to report and comment

on acts of racism and intolerance factually and responsibly.)

Recommendation of the Committee ofMinisters to

Member States on the Independence, Efficiency and

Role of Judges, 1994 

Adopted by the Committee of Ministers on October 13, 1994

Principle I

General principles on the independence of judges

1. All necessary measures should be taken to respect, protect and

promote the independence of judges.

2. In particular, the following measures should be taken;

a. The independence of judges should be guaranteed pursuant to the

provisions of the Convention and constitutional principles, for

example by inserting specific provisions in the constitutions or

other legislation or incorporating the provisions of this

recommendation in internal law. Subject to the legal traditions of

each state, such rules may provide, for instance, the following:

i. decisions of judges should not be the subject of any revision

outside any appeals procedures as provided by law;

ii. the terms of office of judges and their remuneration should be

guaranteed by law;

iii. no organ other than the courts themselves should decide on its

own competence, as defined by law;

iv. with the exception of decisions on amnesty, pardon...the

government or the administration should not be able to take

any decision which invalidates judicial decisions retroactively.

b. The executive and legislative powers should ensure that judges are

independent and that steps are not taken which could endanger

the independence of judges.

c. All decisions concerning the professional career of judges should be

based on objective criteria, and the selection and career of judges

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should be based on merit, having regard to qualifications, integrity,

ability and efficiency. The authority making the decision on the

selection and career of judges should be independent of the

government and the administration. In order to safeguard its

independence, rules should ensure that, for instance, its members

are selected by the judiciary and that the authority decides itself on

its procedural rules.

However, where the constitutional or legal provisions and

traditions allow judges to be appointed by the government, there

should be guarantees to ensure that the procedures to appoint

judges are transparent and independent in practice and that the

decisions will not be influenced by any reasons other than those

related to the objective criteria mentioned above. The guarantees

could be, for example, one or more of the following:

i. a special independent and competent body to give the

government advice which it follows in practice; or,

ii. the right for an individual to appeal against a decision to an

independent authority; or,

iii. the authority which makes the decision safeguards against

undue or improper influences.

d. In the decision-making process, judges should be independent and

be able to act without any restriction, improper influence,

inducements, pressures, threats or interferences, direct or indirect,

from any quarter or for any reason. The law should provide for

sanctions against persons seeking to influence judges in any such

manner. Judges should have unfettered freedom to decide cases

impartially, in accordance with their interpretation of the facts,

and in pursuance of the prevailing rules of the law. Judges should

not be obliged to report on the merits of their cases to anyone

outside the judiciary.

e. The distribution of cases should not be influenced by the wishes of

any party to a case or any person concerned with the results of the

case. Such distribution may, for instance, be made by drawing of

lots or a system for automatic distribution according to alphabetic

order or some similar system.

f. A case should not be withdrawn from a particular judge without

valid reasons, such as cases of serious illness or conflict of interest.

Any such reasons and the procedures for such withdrawal should

be provided for by law and may not be influenced by any interest of

the government or administration. A decision to withdraw a case

from a judge should be taken by an authority which enjoys the

same judicial independence as judges.

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3. Judges, whether appointed or elected, shall have guaranteed tenure

until a mandatory retirement age or the expiry of their term of office.

Principle II

The Authority of Judges

1. All persons connected with a case, including state bodies or their

representatives, should be subject to the authority of the judge.

2. Judges should have sufficient powers and be able to exercise them in

order to carry out their duties and maintain their authority and the

dignity of the court.

Principle III

Proper Working Conditions

1. Proper conditions should be provided to enable judges to work

efficiently and, in particular, by:

a. recruiting a sufficient number of judges and providing for

appropriate training such as practical training in courts and, where

possible, with other authorities and bodies, before appointment

and during their career. Such training should be free of charge to

the judge and should in particular concern recent legislation and

case law. Where appropriate, the training should include study

visits to European and foreign authorities as well as courts;

b. ensuring that the status and remuneration of judges is

commensurate with the dignity of their profession and burden 

of responsibilities;

c. providing a clear career structure in order to recruit and retain 

able judges;

d. providing adequate support staff and equipment, in particular office

automation and data processing facilities, to ensure that judges can

act efficiently and without undue delay;

e. taking appropriate measures to assign non-judicial tasks to other

persons, in conformity with Recommendation No. R(86) 12

concerning measures to prevent and reduce the excessive workload

in the courts.

2. All necessary measures should be taken to ensure the safety of judges,

such as ensuring the presence of security guards on court premises or

providing police protection for judges who may become or are victims

of serious threats.

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Principle IV

Associations

Judges should be free to form associations which, either alone or with

another body, have the task of safeguarding their independence and

protecting their interests.

Principle V

Judicial Responsibilities

1. In proceedings, judges have the duty to protect the rights and freedoms

of all persons.

2. Judges have the duty and should be given the power to exercise their

judicial responsibilities to ensure that the law is properly applied and

cases are dealt with fairly, efficiently and speedily.

3. Judges should in particular have the following responsibilities:

a. to act independently in all cases and free from any outside influence;

b. to conduct cases in an impartial manner in accordance with their

assessment of the facts and their understanding of the law, to

ensure that a fair hearing is given to all parties and that the

procedural rights of the parties are respected pursuant to the

provisions of the Convention;

c. to withdraw from a case or decline to act where there are valid

reasons, and not otherwise. Such reasons should be defined by law

and may, for instance, relate to serious health problems, conflicts of

interest or the interests of justice;

d. where necessary, to explain in an impartial manner procedural

matters to parties;

e. where appropriate, to encourage the parties to reach a friendly

settlement;

f. except where the law or established practice otherwise provides, to

give clear and complete reasons for their judgments, using language

which is readily understandable;

g. to undergo any necessary training in order to carry out their duties

in an efficient and proper manner.

Principle VI

Failure to carry out responsibilities and disciplinary offenses

1. When judges fail to carry out their duties in an efficient and proper

manner or in the event of disciplinary offenses, all necessary measures

135
which do not prejudice judicial independence should be taken.

Depending on the constitutional principles and the legal provisions

and traditions of each state, such measures may include, for instance:

b. moving the judge to other judicial tasks within the court;

c. economic sanctions such as a reduction in salary for a temporary

period;

d. suspension.

2. Appointed judges may not be permanently removed from office

without valid reasons until mandatory retirement. Such reasons,

which should be defined in precise terms by the law, could apply in

countries where the judge is elected for a certain period, or may relate

to incapacity to perform judicial functions, commission of criminal

offenses or serious infringements of disciplinary rules.

3. Where measures under paragraphs 1 and 2 of this article need to be

taken, states should consider setting up, by law, a special competent

body which has as its task to apply all disciplinary sanctions and

measures, where they are not dealt with by a court, and whose

decisions shall be controlled by a superior judicial organ, or which is a

superior judicial organ itself. The law should provide for appropriate

procedures to ensure that judges in question are given at least all the

due process requirements of the Convention, for instance that the case

should be heard within a reasonable time and that they should have a

right to answer any charges. 

Recommendation of the Parliamentary Assembly

onAachieving Real Progress in Women’s Rights

as from 1995

Adopted by the Assembly on April 27, 1995

1. The Assembly considers that human rights of both women and men are

universal and indivisible, and that it is the duty of all states to ensure their

respect and enjoyment, irrespective of socio-cultural and religious

traditions or economic and political systems. In this context the Assembly

affirms that the principle of equality between men and women, or parity

democracy, is an integral part of the values the Council of Europe stands for.

2. The concept of parity democracy recognizes the need for equality in

terms of participation and representation of men and women in all areas

of society, based on the principle of partnership and sharing of rights and

responsibilities.

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3. The Assembly is convinced that de jure and de facto equality between

men and women is crucial for the very functioning of a democratic

society. The question of parity democracy is especially important in the

new member states, where rapid political and economic reforms have had

a negative impact on the situation of women in some cases.

4. The Assembly is disappointed to have to state that the principle of

parity, or even of equality, between men and women is still not included

in the constitutions of all Council of Europe member states. What is

more, even member states which have enshrined the principle of equality

in their constitutions often lack concrete legislation backing up this

provision; legislation that is badly needed to make parity democracy truly

achievable.

6. Therefore, the Assembly recommends that the Committee of

Ministers:

i. include the principle of equality of rights between men and

women in the additional protocol to the European

Convention on Human Rights as soon as possible, as

recommended in Assembly recommendation 1229 (1994);

ii. adopt specific policies and promote action programs to engage

the governments of member states to address the problems of

women both in traditional areas of responsibility and in new

ones, in particular concerning violence against women, the

increasing number of destitute women which is tending to

make poverty a predominantly female phenomenon, and the

traffic in women;

iii. speedily adopt the draft protocol to the European Social

Charter providing for a system of collective complaints;

iv. ensure that the principle of equality of rights between men and

women is included in the constitutions of member states;

v. become active to eliminate all discrepancies that currently

exist in the legislation of member states as regards the

treatment of women as individuals rather than in the context

of their family or their relation to their husbands;

vi. encourage member states to create at national level

appropriate institutional bodies to ensure the real achievement

of equality between men and women, such as equality

commissions, offices of the plenipotentiary for women’s affairs,

offices of equal status, offices of the “ombud type,” or ministers

for women’s rights with responsibility for abolishing direct and

indirect discrimination between the sexes and for promoting

the access of women to positions of parity;

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vii. ask member states to adopt specific antidiscriminatory

legislation providing appropriate sanctions in which case the

equality of women and men is not respected, especially in

professional life;

viii. request that member states incorporate sexual discrimination,

as exemplified by the refusal to allow women to teach or

become judges, the obligation to wear the veil or other

discriminatory clothing, or forcible marriage, in the criteria of

political or religious persecution used to justify the request for

asylum on the part of women;

ix. invite all member states who have not yet signed and ratified

the United Nations Convention on the Elimination of All

Forms of Discrimination against Women (CEDAW) to do so

before the year 2000, and all member states parties to the

convention which have made reservations to make their

national legislation compatible with the convention and

withdraw the reservation as soon as possible;

x. ask all member states to support the adoption of the draft

additional protocol to the CEDAW Convention, empowering

that convention’s supervisory body to examine individual and

group complaints. 

Framework Convention for the Protection of

National Minorities, 1995

An Explanatory Report states the purpose of this Convention, opened for signature in

Strasbourg in 1994

The framework Convention is the first legally binding multilateral

instrument devoted to the protection of national minorities in general. Its

aim is to specify the legal principles which States undertake to respect in

order to ensure the protection of national minorities. The Council of

Europe has thereby given effect to the...call by [by the Vienna Declaration

of the Heads of State and Governments of the Member States of the

Council of Europe]...for the political commitments adopted by the

Conference on Security and Cooperation in Europe (CSCE) to be

transformed, to the greatest extent, into legal obligations.

(Explanatory Report, para. 10, id., at 13.) 

The Framework Convention states:

The member States of the Council of Europe and the other States,

signatories to the present framework Convention,

138
Considering that the aim of the Council of Europe is to achieve greater

unity between its members for the purpose of safeguarding and realizing

the ideals and principles which are their common heritage;

Being resolved to protect within their respective territories the existence

of national minorities;

Considering that the upheavals of European history have shown that the

protection of national minorities is essential to stability, democratic

security and peace in this continent;

Considering that a pluralist and genuinely democratic society should not

only respect the ethnic, cultural, linguistic and religious identity of each

person belonging to a national minority, but also create appropriate

conditions enabling them to express, preserve and develop this identity;

Being determined to implement the principles set out in the framework

Convention through national legislation and appropriate governmental

policies,

Have agreed as follows:

Section I

Article 1

The protection of national minorities and of the rights and freedoms of

persons belonging to those minorities forms an integral part of the

international protection of human rights, and as such falls within the

scope of international cooperation.

Article 2

The provisions of this framework Convention shall be applied in good

faith, in a spirit of understanding and tolerance and in conformity with

the principles of good neighborliness, friendly relations and cooperation

between States.

Article 3

1. Every person belonging to a national minority shall have the right

freely to choose to be treated or not be treated as such and no

disadvantage shall result from the choice or from the exercise of the

rights which are connected to that choice.

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2. Persons belonging to national minorities may exercise the rights and

enjoy the freedoms flowing from the principles enshrined in the present

framework Convention individually as well as in community with others.

Section II

Article 4

1. The Parties undertake to guarantee to persons belonging to national

minorities the right of equality before the law and of equal protection

of the law. In this respect, any discrimination based on belonging to a

national minority shall be prohibited.

2. The Parties undertake to adopt, where necessary, adequate measures in

order to promote, in all areas of economic, social, political and cultural

life, full and effective equality between persons belonging to a national

minority and those belonging to the majority. In this respect, they

shall take due account of the specific conditions of the persons

belonging to national minorities.

Article 5

1. The Parties undertake to promote the conditions necessary for persons

belonging to national minorities to maintain and develop their culture,

and to preserve the essential elements of their identity, namely their

religion, language, traditions and cultural heritage. 

2. Without prejudice to measures taken in pursuance of their general

integration policy, the Parties shall refrain from policies or practices

aimed at assimilation of persons belonging to national minorities

against their will and shall protect these persons from any action aimed

at such assimilation.

Article 7

The Parties shall ensure respect for the right of every person belonging to

a national minority to freedom of peaceful assembly, freedom of association,

freedom of expression, and freedom of thought, conscience and religion.

Article 8

The Parties undertake to recognize that every person belonging to a

national minority has the right to manifest his or her religion or belief and

to establish religious institutions, organizations and associations.

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Article 9

1. The Parties undertake to recognize that the right to freedom of

expression of every person belonging to a national minority includes

freedom to hold opinions and to receive and impart information and

ideas in the minority language, without interference by public

authorities and regardless of frontiers. The Parties shall ensure, within

the framework of their legal systems, that persons belonging to a

national minority are not discriminated against in their access to the

media.

3. The Parties shall not hinder the creation and the use of printed media

by persons belonging to national minorities. In the legal framework of

sound radio and television broadcasting, they shall ensure, as far as

possible, and taking into account the provisions of Paragraph 1, that

persons belonging to national minorities are granted the possibility of

creating and using their own media.

Article 10

1. The Parties undertake to recognize that every person belonging to a

national minority has the right to use freely and without interference

his or her minority language, in private and in public, orally and in

writing.

2. In areas inhabited by persons belonging to national minorities

traditionally or in substantial numbers, if those persons so request and

where such a request corresponds to a real need, the Parties shall

endeavor to ensure, as far as possible, the conditions which would

make it possible to use the minority language in relations between

those persons and the administrative authorities.

3. The Parties undertake to guarantee the right of every person belonging

to a national minority to be informed promptly, in a language which

he or she understands, of the reasons for his or her arrest, and of the

nature and cause of any accusation against him or her, and to defend

himself or herself in this language, if necessary with the free assistance

of an interpreter.

Article 11

1. The Parties undertake to recognize that every person belonging to a

national minority has the right to use his or her surname (patronym)

and first names in the minority language and the right to official

141
recognition of them, according to modalities provided for in the 

legal system.

2. The Parties undertake to recognize that every person belonging to 

a national minority has the right to display in his or her minority

language signs, inscriptions and other information of a private nature

visible to the public.

3. In areas traditionally inhabited by substantial numbers of persons

belonging to a national minority, the Parties shall endeavor, in the

framework of their legal system, including, where appropriate,

agreements with other States, and taking into account their specific

conditions, to display traditional local names, street names and other

topographical indications intended for the public also in the minority

language when there is a sufficient demand for such indications.

Article 12

1. The Parties shall, where appropriate, take measures in the fields of

education and research to foster knowledge of the culture, history,

language and religion of their national minorities and of the majority.

2. In this context the Parties shall inter alia provide adequate opportunities

for teacher training and access to textbooks, and facilitate contacts

among students and teachers of different communities.

3. The Parties undertake to promote equal opportunities for access to

education at all levels for persons belonging to national minorities.

Article 16

The Parties shall refrain from measures which alter the proportions of the

population in areas inhabited by persons belonging to national minorities

and are aimed at restricting the rights and freedoms flowing from the

principles enshrined in the present framework Convention.

Article 17

1. The Parties undertake not to interfere with the right of persons

belonging to national minorities to establish and maintain free and

peaceful contacts across frontiers with persons lawfully staying in other

States, in particular those with whom they share an ethnic, cultural,

linguistic or religious identity, or a common cultural heritage.

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2. The Parties undertake not to interfere with the rights of persons belonging

to national minorities to participate in the activities of non-governmental

organizations, both at the national and international levels.

Section III

Article 20

In the exercise of the rights and freedoms flowing from the principles

enshrined in the present framework Convention, any person belonging to

a national minority shall respect the national legislation and rights of

others, in particular those of persons belonging to the majority or to other

national minorities.

Declaration and Recommendation on the Protection

of Journalists in Situations of Conflict andTension,

1996

Adopted by the Committee of Ministers on May 3, 1996, 98th Session

1. The Committee of Ministers of the Council of Europe condemns 

the growing number of killings, disappearances and other attacks on

journalists and considers these to be also attacks on the free and

unhindered exercise of journalism.

2. The Committee of Ministers appeals to all states, in particular to all

member states of the Council of Europe, to recognize that the right of

individuals and the general public to be informed about all matters of

public interest and to be able to evaluate the actions of public

authorities and other parties involved is especially important in

situations of conflict and tension.

3. The Committee of Ministers solemnly reaffirms that all journalists

working in situations of conflict and tension are, without qualification,

entitled to the full protection offered by applicable international

humanitarian law, the European Convention on Human Rights and

other international human rights instruments.

4. The Committee of Ministers reaffirms the commitments of

governments of member states to respect these existing guarantees for

the protection of journalists.

6. The Committee of Ministers shall consider, together with the

Secretary General, ways of strengthening, in general, existing

143
arrangements within the Council of Europe for receiving information,

and taking action on, infringements of rights and freedoms of

journalists in situations of conflict and tension.

7. The Committee of Ministers considers in this context that, in urgent

cases, the Secretary General could take speedily all appropriate action

on receipt of reports on infringements of rights and freedoms of

journalists in member states in situations of conflict and tension and

calls on the member states to cooperate with the Secretary General in

this regard. 

(The Declaration was adopted at the same time as Recommendation No.

R (96) 4 of May 3, 1996 containing explicit provisions about the physical

protection of journalists, the rights and working conditions of journalists

in situations of conflict and tension and the investigation of instances of

attacks on the physical safety of journalists. Notable in these provisions is

Principle 8 which states “Member states shall instruct their military and

police forces to give necessary and reasonable protection and assistance to

journalists when they so require, and treat them as civilians” and

“Member states shall not use the protection of journalists as a pretext for

restricting their rights.” )

144
THREE INTERACTING 

HUMAN RIGHTS SYSTEMS, 

UN, OSCE, COUNCIL OF EUROPE

Often the question is asked: among the many international human rights

charters, covenants, declarations, treaties and accords, which ones are

most important? Which must a country obey? The answer, as suggested in

the following pages, is that countries have binding legal obligations in

becoming members of the Council of Europe and United Nations and

binding political commitments in joining the OSCE. There is not a

hierarchy of rights, nor priorities among rights. Participation in the

international community of nations involves accepting a range of human

rights standards and commitments to enforce them locally. The standards

may be seen as a three-fold process; first, there is the content of the

documents themselves, which defines the content of modern human

rights law and practice; second, there are the legally binding instruments,

the European Convention being the principle one, which are employed

by individuals through local courts and judicial systems. These European

Convention human rights standards are actionable in both local courts

and, once domestic possibilities have been exhausted, through the

Strasbourg mechanisms outlined in this volume. Finally, there are the

international political commitments contained in the OSCE accords.

While the OSCE accords do not include an individual complaint process,

nor an adjudicative process as such, they are used each year at the

implementation meetings, by individual OSCE missions, and by elections

observers. Also, they provide benchmarks by which jurists, journalists,

educators, parliamentarians, and international missions evaluate rule of

law standards in a country.

A historical perspective is useful in seeing the half-century evolution of

modern human rights instruments. The two great human rights documents

to emerge following the end of World War II were the United Nations’

Universal Declaration of Human Rights and the European Convention

on Human Rights, representing the two trunks of the tree from which all

other human rights accords have grown. (The Universal Declaration of

Human Rights, together with the UN Charter, two International

Covenants on Human Rights and the Optional Protocol to the Covenant

on Civil and Political Rights are called the International Bill of Human

Rights). The European Convention is the more comprehensive of the two

sets of documents. Its provisions are binding law on any country that

becomes a party to the Convention. Donna Gomien, former Senior

Researcher, Norwegian Institute of Human Rights, writes:

145
“The European Convention was the first international

human rights instrument to aspire to protect a broad

range of civil and political rights both by taking the

form of a treaty legally binding on its High Contracting

Parties and by establishing a system of supervision over

the implementation of the rights at the domestic level.

Its most revolutionary contribution perhaps lies in its

inclusion of a provision (Article 25) under which a High

Contracting Party may accept the supervision of the

European Commission of Human Rights in instances

where an individual, rather than a State, initiates the

process. One measure of the Convention’s success is the

acceptance by all the High Contracting Parties of this

right of individual petition.”4

Human rights became a paramount concern to Europeans in the postWorld War II era for two reasons. First was the war itself. Many of the

drafters of the Convention were active in the resistance, some had been in

prison, and all had known family members affected by the war. Robertson

and Merrills, two leading British human rights authorities, have written: 

“They were aware that the first steps toward dictatorship

are the gradual suppression of individual rightsinfringement of the freedom of the press, prohibition 

of public meetings, and trials behind closed doors, for

example — and that once this process has started it

becomes increasingly difficult to stop. It is vital, therefore,

to lay down in advance the rights and freedoms that

must be respected in a democratic society and to create

institutions to see that they are observed. If any member

State should then start on the path which leads to

dictatorship, the alarm can be sounded and international

machinery put in motion to restore the rule of law.”5

Each decade has seen a subsequent growth and elaboration of human

rights instruments. For example, the United Nations has accepted several

additional covenants comprising the International Bill of Human Rights,

as noted above, plus the important Covenant on Economic, Social and

Cultural Rights, the Convention on the Prevention and Punishment of

the Crime of Genocide, and the Convention on the Elimination of All

Forms of Discrimination Against Women. The Optional Protocol to the

146

4 Donna Gomien, Short Guide to the European Convention on Human Rights, Council of Europe Press,

Strasbourg, 1993, p. 14. 

5 A.H. Robertson and J.G. Merrills, Human Rights in Europe, a Study of the European Convention on

Human Rights, third edition, Manchester University Press, Manchester, 1993, p.3.
International Covenant on Civil and Political Rights of 1996 allows for

individual petition to the 18-member Human Rights Committee when all

domestic remedies are exhausted; and the Second Optional Protocol of

1989 to the International Covenant on Civil and Political Rights aiming

at the abolition of the death penalty is another illustration of the growing

breadth and depth of international human rights concerns.

As for the Council of Europe, the 1950 Convention for the Protection of

Human Rights and Fundamental Freedoms was supplemented by the

European Social Charter of 1961, plus protocols, the European Convention

for the Prevention of Torture and Inhuman or Degrading Treatment or

Punishment of 1987, and the Framework Convention for the Protection

of National Minorities of 1995.

Around these basic documents a number of other treaties evolved on

subjects like Freedom of Expression, Equality of Women and Men, Rights

of the Child, the Role of Lawyers, Prosecutors and Judges. Some documents

addressed multiple subjects, such as the comprehensive United Nations

World Conference on Human Rights, the Vienna Declaration and Program

of Action of 1993 and the Council of Europe’s Declaration and Plan of

Action on combating racism, xenophobia, anti-semitism and intolerance

of 1993. Gradually the content of international human rights focus

became shaper, deeper, and more precise with each succeeding decade. 

The CSCE Accords

The growth in human rights subject matter is nowhere more dramatically

displayed than in the evolution of the CSCE accords from Helsinki in

1975 to Copenhagen in 1990, Paris in 1990, Moscow in 1991 and Helsinki

again in 1992. These accords do not have the force of law the way the

European Convention is a black letter law document. They represent

politically binding agreements among the participating nations. From the

1975 Helsinki document that reflected political realities of the sharply

divided Europe of that era until the Paris and Copenhagen documents of

1990, which represent a considerable advancement in the subject matter

of human rights, the CSCE accords encompass the content of modern

human rights concerns. For example, the comprehensive provisions of the

1991 Document on the Moscow Meeting of the Conference on the

Human Dimension of the CSCE would have been inconceivable at the

time the Helsinki document was drafted. The Moscow document states:

“The participating States emphasize that issues relating

to human rights, fundamental freedoms, democracy and

the rule of law are of international concern, as respect

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for these rights and freedoms constitutes one of the

foundations of the international order. They categorically

and irrevocably declare that the commitments undertaken

in the field of the human dimension of the CSCE are

matters of direct and legitimate concern to the

participating States and do not belong exclusively to

the internal affairs of the State concerned.”

Arie Bloed, a leading Dutch authority on public international law and the

OSCE, has written:

“One of the most complicated aspects of the CSCE

process is the legal characterization of its concluding

documents. In legal doctrine the view generally adhered

to is that the Final Act of Helsinki and the CSCE

documents do not have the character of treaties....The

intention of the parties, as expressed at the end of the

Conference in Helsinki in 1975, clearly points out to

the fact that the Final Act has to be considered as a

political, not as a legal document. This observation

should not, however, be taken to imply that the CSCE

documents are not binding....Violation of politically,

but not legally binding agreements, is as inadmissible as

violation of norms of international law. In this respect

there is no difference between politically and legally

binding rules.”6

Seen across the spectrum of recent years, the trend toward greater

individual and collective human rights is a universal one, spreading in

both public international and customary law, and in local law and

practice. Reverses in human rights practice often come at times in which

states of emergency are declared and a few state leaders will argue that

“development comes first, human rights comes later,” or the threat of

warfare is used to limit human rights. Some states are slow to implement

international human rights norms but even then most state constitutions

contain widespread human rights provisions and these, like other

countries, are bound by UN covenants, the European Convention or the

OSCE Accords. 

Richard B. Bilder, a member of the Advisory Council of the International

Human Rights Law Group, has written:

148

6

From Helsinki to Vienna: Basic Documents of the Helsinki Process, Arie Bloed (ed.), Martinus Nijhoff

Publishers, Dordrecht, The Netherlands, 1990, p. 11.
“It is clear that the concept of international human

rights has taken firm root and acquired its own dynamic.

Even if governments would prefer not to treat

international human rights seriously, ordinary people in

countries throughout the world clearly do take them

seriously. Even when governments employ international

human rights concepts hypocritically for selfish political

purposes, their actions serve to reinforce human rights

principles and establish important precedents.” 7

It is important to note that in international human rights law the central

relationship is between the state and the individual; thus these human

rights documents should not be considered as government-to-government

accords, but statements of individual rights, for which the state bears

responsibility in enforcement. This marks a departure from historical

antecedents. Today individual persons, citizens and non-citizens, have

internationally guaranteed rights as individuals and not as nationals of a

particular state.

A commentary on modern human rights law states: 

“The effectiveness of international law in general

depends either upon the willingness of states to surrender

some of their sovereign powers to wider international

control, or on reciprocity, the understanding that each

party will act in a certain way because the other will.

International human rights law is largely based on a

system of multilateral treaties that establish objective

standards for state conduct, rather than reciprocal rights

and obligations. And these treaties place duties on the

states in relation to individuals within their jurisdiction

rather than to the other State Parties. Perhaps because

of their characteristics, most international human rights

instruments are entitled charters, or covenants, rather

than treaties or conventions.” 8

This brief survey of the evolution of human rights law will be useful in

determining the intention of the drafters of various international

instruments. The next question is one of ascertaining their applicability in

149

7 Richard B. Bilder “An Overview of International Human Rights Law” in Guide to International

Human Rights Practice, Hurst Hannum, (ed.), second edition, University of Pennsylvania Press,

Philadelphia, 1992, p. 16.

8 Donna Gomien, David Harris, and Leo Zwaak, Law and Practice of the European Convention 

on Human Rights and the European Social Charter, Council of Europe Publishing, Strasbourg, 

1996, p. 20.
150

Conventions, Treaties, and Accords, Which have Priority?

Covenants, Conventions, Treaties, Protocols

In the language of public international law, a Covenant is a signed

agreement, convention, or promise between two or more parties by

which the parties pledge themselves to a course of action and to

refrain from other courses of action.

A Convention is an agreement or compact between or among states,

usually representing an agreement or arrangement preliminary to a

formal treaty. A Treaty is a compact made between two or more

independent nations and must, if possible, be so construed as to give

full force and effect to all its constituent parts. A Protocol is a brief

addition to an earlier Covenant or Treaty. Covenants, Conventions,

Treaties and Protocols are legal documents, requiring specific

standards of behavior from states that ratify them. Ratification

processes are often not complete upon mere signature, but may

require additional steps, such as passage by a state’s legislative body.

Accords, Acts, Declarations, Recommendations, Principles, etc.

An Accord, as defined above, is a politically binding agreement

among nations, but is different from a legal document, chiefly in that

its application is through diplomatic rather than juridical means. An

Act is an expression of will or purpose, expressing the idea of future

performance, something done voluntarily by a country or person.

Declarations, Recommendations, Principles, Basic Principles, Guidelines,

and Codes of Conduct are not legally binding documents, but

statements of intent, usually aimed at specific fields, such as the role

of police, prosecutors, or judges. It is interesting to note that the

content of such statements in one decade are often incorporated in

the next decades’ covenants, conventions and treaties as binding law. 
151

a given country. If the country is a member of the United Nations, it will

be a party to the United Nations human rights conventions. If the

country is a member of, or applying for membership in, the Council of

Europe, it is obligated to follow the human rights standards of the

European Convention. Two other questions are: has the country ratified

the various human rights instruments listed in this volume? Were they

ratified with reservations narrowing their domestic applicability? A table

of instruments and ratifications is included as an annex to this volume,

but it does not note reservations, which should be ascertained locally. See

pages 208-214.
152

CASE LAW

A steady growth in case loads has characterized both the European

Commission and the European Court on Human Rights. In its early years,

the Commission picked few and generally safe cases, seeking to build

Europe-wide support for its activities. Up until 1991 some 19,000 cases

had been presented to the Commission; less than 3,000 were returned to

governments for comment, and, finally, only 1,000 were admitted, most of

them being settled by friendly means or through a decision of the

Committee of Ministers. Meanwhile, 345 applications were filed before

the Court, which rendered 307 judgments. Monetary compensation was

awarded to 143 petitioners and in two-thirds of the cases brought before

it, the Court found the Convention had been violated. At the same time,

the European Court’s cases steadily increased; from 1959 to 1985 the Court,

the world’s longest standing international human rights court, heard

approximately 100 cases, but heard the next 100 cases in the four year

period, 1985 to 1989. Its caseload increased steadily thereafter. During the

first six months of 1994 it delivered judgments in 24 cases. Italy holds the

docket record (136 cases, in 82 of which the Court found violations by

April 1995). Many of the cases revolved around a single issue, long delays

in prosecutors bringing cases to trial. The United Kingdom had 73 cases,

35 involving violations; France, 62 cases, 29 involving violations; Austria,

55 cases, 27 violations; Sweden, 32 cases, 21 violations, and Belgium, 34

cases, 20 violations. Germany has participated in 28 cases with 11 violations,

Denmark six cases, two violations, Norway, three cases, one violation. 9

In 1996 12,143 communications were received; 2,236 of them — slightly

more than 18% — concerned countries of central and eastern Europe.

4,758 of the applications were registered, 892 of them complaints of

human rights violations in central and eastern European countries. The

1994-1996 figures indicate a steady rise in cases from these countries. The

1996 number of applications include Bulgaria 35, Czech Republic 77,

Lithuania 41, Poland 458, Romania 118, Slovakia 80 and Slovenia 19. 10

A special category of cases are the inter-state cases, less than 20 in the Court’s

history to date. Generally highly political in nature, they include Greek

accusations against the United Kingdom for alleged mistreatment of prisoners

in Cyprus, Ireland accusing the United Kingdom of similar behavior toward

9 Henry J. Steiner and Philip Alston, International Human Rights in Context, Law, Politics, Morals,

Clarendon Press, Oxford, 1996, p. 598. A detailed guide of case disposition is contained in Donna

Gomien, Judgments of the European Court of Human Rights, Reference Charts, Council of Europe,

Strasbourg, 1995.

10 M. de Salvia, Applications Lodged Against Central and Eastern European Countries with the Human

Rights Protection Organs in Strasbourg, Council of Europe publication H (97) 7, Strasbourg, 1997, p.3.
153

prisoners, and numerous cases against the Greek military regime in the 1970s.

Prof. Ralph Beddard, Senior Lecturer in the Faculty of Law, Southampton

University, writes: “The inter-state procedure was bound to be founded, for the

greater part, on unfriendliness in the relations between states, and the cases, in

the main, bear this out. Although the applications against Turkey and those

against Greece were brought by states with little economic or cultural contact

with the Respondent States, and were occasioned by the seriousness of the

violations, they illustrate the weakness of the Commission within the arenas

of large-scale politics and diplomacy. The application by Ireland v. United

Kingdom seemed, to a great extent, to be politically motivated, while the

Cyprus v. Turkey application was a direct result of hostilities between the two

parties. However, one should not dismiss such inter-state applications as

serving no purpose, since one of the objects of the Convention is to publicize

atrocities and, accordingly, motive is not entirely relevant.” 11

If the Convention is the skeleton, case law is the flesh that gives it life,

and after nearly a half-century of existence a great number of cases are

available as precedent. The decisions of the Commission and Court are

published regularly in Strasbourg and are available in printed and electronic

form from the Council of Europe. Details for obtaining such information

are contained elsewhere in this volume. Gomien states: “The case law

from these bodies adds to the substance of the Convention, giving it form

and life beyond the instrument itself. Their interpretations of such ideas

as the rule of law and democratic society form the foundation of the

European human rights system, and provide strong guidelines for Eastern

and Central European countries aspiring to become part of that system.” 12

The Court has a dual role, that of deciding cases brought to it and

monitoring the domestic laws and practices of Contracting States. In this

regard, it has gradually assumed the functions of an international

constitutional tribunal. At the same time, the Court’s essential case load

involves unsatisfied complaints by individuals against states. Merrills

states: “The issue here is what it means to have a particular right and how

the balance is to be struck between such competing interests as, for

example privacy and national security, or prompt trial and the limitation

of public expenditure.” 13

Until now, cases have emanated primarily from Western Europe, but that

will change as new members join the Council of Europe and subscribe to

11 Ralph Beddard, Human Rights and Europe, third edition, Grotius Publications Limited, Cambridge,

1994, p.9.

12 Gomien, 1993, p. 151. 13 J.G. Merrills, “The Development of International Law by the European Court of Human Rights” 

in Henry J. Steiner and Philip Alston, International Human Rights in Context, Law, Politics, Morals,

Clarendon Press, Oxford, 1996, p. 599.
154

its legal institutions. Only a few leading cases can be referred to here,

following the categories listed in the articles of the European Convention. 

Article 1: States shall Secure Rights and Freedoms for “everyone within 

their jurisdiction”

While conventional international treaties apply primarily to citizens of a

given country within that country’s boundaries, the language of Article 1

of the European Convention is much more expansive, securing rights and

freedoms to “everyone within their jurisdiction.” Subsequent case law has

secured these rights, not only for citizens, but for aliens, stateless persons,

children, the disabled, and those otherwise lacking legal capacity. Nationals

from more than 80 countries have filed petitions before the Commission,

more than three times the number of High Contracting Parties to the

Convention. Thus countries must bring their domestic law into compatibility

with the Convention. Moreover, Article 64 prohibits general reservations;

new states ratifying the Convention must then meet its obligations from

the time the document enters in force in a given country.

Any consideration of Article 1 must consider as well Article 63 which allows

a High Contracting Party to broaden the Convention’s coverage to “all or

any of the territories for whose international relations it is responsible.”

Jurisdiction, in short, is not territorially limited, but encompasses the idea

of State jurisdiction over individuals through the activities of State organs

or authorities.

Article 2: Right to Life

Article 2 concerns the right to life and should be considered together with

Protocol 6 abolishing the death penalty. This article should not be

interpreted as guaranteeing any certain quality of life or standard of rights

for citizens, its primary purpose is to safeguard against any arbitrary

deprivation of life by the State. Likewise, the controversial issue of abortion

rights is not dealt with in this article. The Commission agreed that

recognizing the unconditional right to life of a fetus would be contrary to

the intent of the Convention in (Appl. No 8416/78). Elsewhere, it found

States may conditionally restrict a woman’s rights to an abortion without

violating the woman’s right to privacy, (Brüuggemann and Scheuten, Comm.

Rept. of 1977). The question of fetal rights is left undiscussed in this case.

Article 2 of the Convention does not state that life begins at conception.

Protocol No. 6 to the Convention calls for abolition of the death penalty,

with a few narrow exceptions. Gomien notes: “In addition to the capital

punishment exception of Article 2 (1), Article 2 (2) provides for three
155

additional, albeit circumscribed, exceptions to the prohibition against the

intentional depravation of life. The first is in defense of any person from

unlawful violence, the second is in effecting a lawful arrest or preventing

the escape of a detainee, and the third is in quelling a riot or insurrection.

The principle governing the exercise of State discretion in applying any of

these exceptions is that any force must be ‘no more than [is] absolutely

necessary.’ ” 14

Capital punishment is allowed under severely restricted conditions

through the second sentence of Article 2 (1). A comparison with the UN

Covenant on Civil and Political Rights is instructive. The UN document,

in its Article 6, acknowledges the possibility of the death penalty, but

seems to treat it as a transient phenomena on its way to disappearing. The

death penalty is expressly prohibited for persons below the age of 18 and

for pregnant women. Robertson and Merrills state: “Article 2 of the

Convention must now be read in conjunction with Protocol No. 6

which...prohibits the death penalty in time of peace. As a result of this

modification, European arrangements were for a time more progressive

than those of the Covenant, at least as regards parties to the Protocol.

However, with the adoption in 1989 of a protocol to the Covenant which

likewise outlaws the death penalty, the two systems are now broadly in

line on this issue.” 15

Article 3: Torture, Inhuman or Degrading Treatment or Punishment

The historical roots of Article 3 are Article 5 of the Universal Declaration

of Human Rights, and its content is given wider scope in the United

Nations Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, which entered into force in January

1987, and the European Convention for the Prevention of Torture and

Inhuman or Degrading Treatment or Punishment, which entered into

force in February 1989. Given the World War II context from which the

human rights accords arose, it is understandable that rights to be free from

torture and inhuman and degrading treatment would hold a special place

in the pantheon of rights enumerated in the international human rights

instruments. 

Article 3 of the Convention does not define torture, but a 1975 UN

General Assembly Declaration states that “Torture constitutes an

aggravated and deliberate form of cruel, inhuman and degrading

treatment or punishment.” The Commission interprets “torture” to mean

“inhuman treatment, which has a purpose such as the obtaining of

14 Gomien, 1993, p. 18. 15 Robertson and Merrills, 1993, p. 33.
156

information or confessions, or the infliction of punishment, and it is

generally an aggravated form of inhuman treatment.” 16

The Commission and the Court have employed two factors to interpret

provisions of this article, the degree of severity of conduct and the extent

of institutionalized practices. Under degrees of severity of conduct, the

relevant cases are Denmark, France, Norway, Sweden and the Netherlands v.

Greece (the 1969 “Greek case”) and Ireland v. the United Kingdom (1978).

In these cases Torture constitutes “deliberate inhuman treatment causing

very serious and cruel suffering.” Inhuman Treatment or Punishment is

“the infliction of intense physical and mental suffering” and Degrading

Treatment is “ill-treatment designed to arouse in victims feelings of fear,

anguish and inferiority capable of humiliating and debasing them and

possibly breaking their physical or moral resistance.”

Ireland’s complaint against the United Kingdom, filed in 1971, charged the

latter with violations of Article 3 of the Convention, resorting to torture and

degrading treatment, while interrogating detainees in Northern Ireland.

Relevant here is the fact that the United Kingdom, invoking Article 15,

stated it was derogating from certain rights agreed to in the Convention.

The Irish argued, and the Court affirmed, that Article 3 rights could not be

derogated. The heart of the Irish case was that various persons taken into

custody by the British forces had been subject to torture and inhuman and

degrading treatment in violation of Article 3, and that internment without

trial, as was widely practiced by the British forces in Northern Ireland, was

a violation of Article 5, guaranteeing the right to liberty and security of

person. (Between August 1971 and June 1972 3,276 persons were

processed by police at various holding centers; the Irish filing alleged 228

specific cases of police brutality.) Objections centered on five techniques

used in interrogation, wall-standing (forcing detainees to remain for long

periods of time with their fingers high above their heads against the wall

and their legs spread apart and feet pushed back, forcing them to stand on

their toes with their body weight mainly on their fingers), hooding (a dark

colored bag was kept over detainees’ heads except when they were being

interrogated), subjection to noise (keeping detainees in a room with a

loud continuous hissing noise), sleep deprivation and deprivation of food

and drink. By March 2, 1972 the British government had agreed “that 

the techniques...will not be used in future as an aid to interrogation.”

Moreover, between 1971 to 1975 plaintiffs in domestic courts, alleging 

ill-treatment by security forces obtained compensation totaling £302,043

in settlement of 473 civil cases for wrongful arrest, false imprisonment,

and assault and battery, leaving 1,193 civil cases outstanding.

16 Robertson and Merrills, 1993, p. 36.
The Court concluded that recourse to the five techniques amounted to 

a practice of inhuman and degrading treatment, which practice was in

violation of Article 5.

17 Gomien states: “Listing such factors as sex, age

and state of health of the victim [the Court] noted (in Ireland v. the United

Kingdom, ed.) that a given practice must reach a minimum level of severity

in order to constitute a violation of the article. For example, the Court states

that ‘degrading’ does not mean merely disagreeable or uncomfortable.” 18

Extradition and Expulsion Cases

A special category of cases deserve comment, cases when an applicant

claims they will be subject to treatment in violation of Article 3 if they are

expelled from the country in which they are residing to another country,

often their country of origin. The cases are complicated because the

European Convention does not guarantee a person a right to reside in a

particular country, nor a right not to be expelled, although Article 4 of

Protocol 4 forbids the collective expulsion of aliens. Sometimes, however,

the Commission will consider a case when the applicant pleads expulsion

would subject that person to persecution and possible death. In one case, a

Turkish applicant filed against the Federal Republic of Germany, arguing

that, as a political activist, his extradition to Turkey would surely result in

torture and persecution. The Commission accepted the case, but the

applicant committed suicide before it was resolved, so the case was

removed from the list.19

An important case under Article 3 was (Chahal v. United Kingdom) (1996).

Here the Court, sitting in Grand Chamber, ruled the order to evict to

India a Sikh separatist for national security reasons violated, should it be

implemented, the absolute prohibition of torture and of inhuman or

degrading treatment. Chahal, resident in the United Kingdom since

1971, became active in support of an independent Sikh homeland after

visiting the Punjab in 1984. In August 1990 the Home Secretary decided

to deport him on national security grounds, claiming Chahal was assisting

Punjab terrorists, charges which Chahal categorically denied. Since

August 16, 1991 he was held in a British prison. He applied for political

asylum, claiming he would be a victim of torture and persecution if

deported to India, a petition the Home Secretary denied. The matter

continued in dispute, with moves and counter-moves until 1996, when

the Court found a violation of Article 3 of the ECHR, fearing for the

defendant’s safety if he was returned to India. The Court wrote:

157

17 Richard B. Lillich and Hurst Hannum, International Human Rights, Problems of Law, Policy, and

Practice, third edition, Little, Brown and Company, New York, 1995, pp. 693-715. 18 Gomien, 1993, p. 19. 19 (No. 10308/83, Dec.5.83), D.R. 36 p. 209 (233-234) 
158

“It was well-established in the case law of the Court that

expulsion by a Contracting State might give rise to an

issue under Article 3 ECHR where substantial grounds

had been shown for believing that an individual, if

expelled, would face a real risk of being subjected to

torture or inhuman or degrading treatment or punishment

in the receiving country. The Court was well aware of

the immense difficulties faced by States in modern times

in protecting their communities from terrorist violence.

However, even in these circumstances, the Convention

prohibited in absolute terms torture or inhuman or

degrading treatment or punishment, irrespective of the

person in question.” 20

In the same case, the Court did not find Chahal’s detention violated

Article 5 (1), but found it violated Article 5 (4) because the United Kingdom,

in detaining the defendant for six years, violated his rights. The Court

stated: “It was possible to employ techniques which both accommodated

legitimate security concerns about the nature and sources of intelligence

information and yet accorded the individual a substantial measure of

procedural justice.”

Article 4: Slavery and Forced Labor

Relatively few cases have been raised under this category to date. Under

Article 4(3) (c) the Commission declined to accept several cases,

excluding from the definition of forced or compulsory labor the

requirement of conscientious objectors to perform military service.

Gomien observes: “This provision does not oblige any High Contracting

Party either to recognize conscientious objection or to exempt

conscientious objectors from serving in alternative employment for

periods of time equivalent to those served by military recruits.” 21

Article 5: Liberty and Security of Person

This pivotal Article has its antecedents in Article 3 of the Universal

Declaration of Human Rights and has, in turn, influenced other human

rights instruments, such as Article 9 of the International Covenant on

Civil and Political Rights. The focus of Article 5 is on freedom from

arbitrary arrest and detention, essentially the conditions of physical liberty. 

20 ECH-96-3-015, in Bulletin on Constitutional Case Law, Council of Europe, Strasbourg, 1996, 

pp. 453-454.

21 Gomien, 1993, p. 24.
159

The case law that has developed on this article rejects as restrictions on

individual freedom such usual requirements as that aliens register, periodic

curfews be established, or that vehicular traffic be subject to regulation. In

one case (Guzzardi v. Italy) (1980) the Court held that a person confined

to a portion of an island with severely limited social contacts could be

considered to be deprived of his liberty. Guzzardi was a Mafia leader with a

long criminal record who was arrested, charged, and placed in detention.

(Italian law allows for up to two years in such detention). In January 1975

the Milan Regional Court ordered the defendant to reside on the small

island of Asinara until he was returned to the mainland the following July,

where he was convicted of terrorist offenses, and sentenced to 18 years in

prison. A majority of the Court found that confinement on the island was

a depravation of Guzzardi’s liberty and awarded him compensation of one

million Italian lira.

Additionally, there is no provision for a person under Article 5 to waive

their rights, even if they surrender to the police. In the often-cited

opinion (DeWilde, Ooms and Versyp v. Belgium) (1971) the Court held:

“The right to liberty is too important in a ‘democratic

society’ within the meaning of the Convention for a

person to lose the benefit of the protection of the

Convention for the single reason that he gives himself

up to be taken into detention.”

Although a state may detain someone after that person is convicted by a

competent Court, continued detention is not acceptable where prison

authorities arbitrarily lengthen a prisoner’s time in jail administratively for

allegedly committing a triable offense. (Van Droogenbroeck v. Belgium) (1982).

Commenting on this case, specifically in that it invoked Article 5 (1) (e),

Robertson and Merrills write: “An unusual feature of the Vagrancy cases was

that the applicants had initially reported voluntarily to the police. Relying

on this, the government argued that their detention was in each case the

result of a request and as such, could not be a violation of Article 5. The

Court, however, had no hesitation in rejecting this argument. Pointing out

that a person may give himself up to the police out of temporary distress or

misery, but that this in no way denotes that he is properly to be regarded as a

vagrant, the Court explained that in any event, the detention procedure

which formed the subject of the complaint was mandatory rather than

contractual.” It then said:

“Finally, and above all, the right to liberty is too important

in a ‘democratic society’ within the meaning of the

Convention for a person to lose the benefit of the
160

protection of the Convention for the single reason that

he gives himself up to be taken into detention. Detention

might violate Article 5 even although the person

concerned might have agreed to it. When the matter is

one which concerns ordre public within the Council of

Europe, a scrupulous supervision by the organs of the

Convention of all measures capable of violating the

rights and freedoms which it guarantees is necessary in

every case.” 22

Several cases have been considered under Article 5 (1) (c) in efforts to

combat terrorism. The Court held it was illegal to detain a person without

bringing them before a court or without intending to bring them to trial

in (Lawless v. Ireland) (1961) but issued a contrary opinion in (Brogan v.

United Kingdom) (1988). Here the Court held detaining applicants was

not illegal if they were held for further police investigations to develop a

case where concrete suspicions were evident. The meaning of the word

“promptly” was the focus of the Brogan case. Four applicants were held

under the United Kingdom’s Prevention of Terrorism (Temporary

Provisions) Act of 1984 and were held for four to five days each, questioned

about terrorist incidents, but never charged. The Court acknowledged

the special circumstances of the disturbed political-military climate in

Northern Ireland, but still held that the periods of detention in police

custody were longer than permitted by proper legal concepts of promptness,

and thus their rights under Article 5 (3) had been violated. Robertson and

Merrills note: “The decision in Brogan leaves no room for doubt that the

word ‘promptly’ in Article 5 (3) will be interpreted strictly and with only a

limited degree of flexibility to cater for special circumstances.” 23

Article 5 (1) (b) (d) (e) and (f) discuss civil cases of detention. This includes

detention to ensure than an individual complies with “any obligation

prescribed by law” but this provision does not mean detention to force

compliance with a contractual obligation. Article 1 of Protocol No. 4

forbids “deprivation of liberty merely on the ground of inability to fulfill a

contractual obligation.”

Pretrial Detention

Article 5 (3) requires that any one held under provisions of Article 5 (1) (c)

must be promptly brought before a judicial authority. The judge is

required to hear the petitioner and the person being detained must be

brought before the judge, who must review all relevant information before

22 Robertson and Merrills, 1993, p. 69. 23 Robertson and Merrills, 1993, p. 76.
161

deciding whether or not the person should be detained. (Schiesser v.

Switzerland) (1979). In (Skoogström v. Sweden) (1984) the Court declared

that if a state official held the role of both prosecutor and investigator this

did not meet the law’s requirements.

Gomien concludes: “The Court has accepted as initial grounds for detention

such factors as likelihood of flight from the jurisdiction (Neumeister v.

Austria) (1968), (Stögmüller v. Austria) (1969), and (Matznetter v. Austria)

(1969) and the risk of the committal of further offenses (Matznetter).

However, the Court has made it clear that Article 5 (3) does not intend a

State to detain an individual indefinitely. In the Stögmüller case, the Court

noted that if the ‘reasonable suspicion’ criterion of Article 5 (1) (c) ceases

to apply, continued detention becomes unlawful by the very terms of

Article 5 (1) (e). The Court further noted that even if a ‘reasonable

suspicion’ continued to exist, this was not the sole determinative factor to

justify continued detention in all cases. In the Neumeister, Stögmüller, and

Matznetter cases, the Court held that the introduction of the possibility of

bail minimized the danger of flight, thereby rendering continued detention

on these grounds unacceptable. In the Matznetter case, however, the Court

held that the risk of committal of further offenses remained as sufficient

grounds for continued detention, although rejecting this argument in the

cases of Stögmüller and Ringeisen v. Austria (1971).24 Even this seemingly

restricted application of Article 5 (3) has had an impact on the governments

of Austria and Germany, causing them to review their law and practice.

As a result, both countries modified their Codes of Criminal Procedure,

limiting the time of remand in custody to six months except in special

circumstances.” 25

In (Aksoy v. Turkey) (1996) the Court found a violation of Article 5 (3)

when it detained the defendant fourteen days, even if Turkey had filed a

notice of derogation of Article 5, describing PKK terrorist activity as “a

public emergency threatening the life of a nation.” The Court found

violations of Article 3 when the individual, in good health, was discovered

with injuries when released from police custody. Linking Article 3 with

Article 13, the Court found the defendant had been denied an effective

remedy in law when state agents failed to investigate incidents of torture

in a manner allowing those responsible to be identified and brought to

justice. The Court wrote: “under Turkish law the Prosecutor was under a

duty to carry out an investigation. However, despite the visible evidence

that the applicant had been tortured, no investigation took place.

Moreover, in the circumstances of the applicant’s case, such an attitude

from a State official under a duty to investigate criminal offenses was

24 Gomien, 1993, p. 31. 25 Robertson and Merrills, 1993, p. 79.
162

tantamount to undermining the effectiveness of any other remedies that

may have existed.” 26

Parenthetically, the Court denied the claim of Aksoy’s representatives

that he was killed as a direct result of his application to the Commission.

Thus it concluded that no violation of Article 25 (1), the right of individual

petition, was established.

Habeas Corpus

Article 5 (4) allows an individual deprived of their liberty through arrest 

or detention to petition the courts in a speedy manner. An extensive 

body of jurisprudence has built up around this issue. The key question: is

judicial review of the legality of the detention available? Most cases

brought under this article argue that the failure of a country to provide

systematic reviews of the legality of detention violates the meaning of 

the article. The Court found in (DeJong, Baljet and Van den Brink v.

Netherlands) (1983) a six-to-eleven day delay was excessive for a first

review of a detention decision. 

The accused must be given access to files used by investigating authorities

in their review of a decision to detain the accused on remand (Lamy v.

Belgium) (1989).

Right to Compensation

Article 5 (5) provides compensation for “everyone who has been the victim

of arrest or detention in contravention of the provisions of” Article 5.

Gomien writes: “In order for the Commission or Court to find a violation

of Article 5 (5), it must first find a violation of one or more of the rights

protected by the preceding paragraphs of the article. It is important to

note that the right to compensation under this provision is a right an

individual claims from national authorities, as he does any of the other

rights delineated in Section 1 of the convention.” 27 At the same time,

Article 50 permits the Court to “afford just satisfaction to certain

individuals filing complaints. The Court has concluded the two Articles

are not exclusive one of the other and that it is permissible to invoke

either or both in claiming compensation for false arrests. 28

In summary, the six categories under which a person’s liberty can be deprived

in Article 5 (1) constitute exceptions to the established rights to personal

26 ECH-96-3-017 in Bulletin of Case Law, Strasbourg, 1996, pp. 456-457. 27 Gomien, 1993, p 34. 28 Gomien, 1993, p.34.
163

liberty and security. There is a lack of legal symmetry to their enumeration

and they contain no stricture against “arbitrary” arrest and the whole

category of what constitutes justifiable or unjustifiable restrictions is left

undiscussed. A recent commentary states: “In practice, such areas as discipline

in prison or by the military, child and age care, camps for refugees or war

prisoners, and other strict regimes may raise issues under Article 5 (1).

Sometimes they have to be seen as not covered by any of the categories,

and thus prohibited. But in most countries the law prohibits one person from

detaining another in homes, or hospitals for children, psychiatric patients

and other handicapped groups. Many borderline cases arise in such

environments. However, the recognized categories under Article 5 (1) are

flexible on some points. Therefore detention in forms other than prisons

or similar institutions may well be covered, if the law provides for it.” 29

Article 6: The Right to a Fair Hearing

(Should be considered with Article 13 and Protocol No. 7, articles 2 and 4.)

This is a broadly cast Article, containing several provisions not falling

easily within other sections of the Convention. Additionally, it is often

invoked by applicants raising objections not only about the violation of 

a specific right but about the procedural application of the law or their

treatment by judicial authorities. It follows then that the jurisprudence

accumulated under this Article is somewhat amorphous.

The presumption of innocence and the right to a fair trial are key provisions

of this Article which is much more detailed than similar provisions in the

Universal Declaration. Article 6’s first paragraph opens with a general

statement of right which closely resembles the Declaration’s Article 10. As

might be expected, this Article, like Article 5, has provoked much case

law. Many litigants cast a broad net by invoking numerous due process

provisions of this Article.

A recent commentary notes: “One important principle at issue in cases

alleging a violation of the right of access to court is that the state cannot

restrict or eliminate judicial review in certain fields or for certain classes of

individuals. Some of the important cases challenging state practices in

this area have been brought by prisoners. In the Golder case, a prisoner

who wished to bring a civil action for defamation against a prison guard

who had falsely accused him of instigating a prison riot had had his letters

to both a solicitor and the European Commission of Human Rights

censored and withheld by the prison authorities. The European Court of

29 Gomien, Harris, and Zwaak, 1996, p.142.
164

Human Rights found a violation both of his right to correspondence

under Article 8 and his right to access under Article 6 (1). 30

An important case about due process of law and assuring access to courts

is (Airey v. Ireland) (1979). Here the Court held that, under Article 6 (1),

refusing to grant legal aid to a penniless woman attempting to obtain a

judicial separation from an abusive husband violated her right of access to

the courts. A commentary on the case notes: the Court held “that the

Convention had been violated because the prohibitive cost of obtaining a

judicial separation in Ireland meant that the applicant had been deprived

of an effective right of access to a court. Although there was no formal

barrier, Mrs. Airey lacked the means to engage a lawyer and there was no

legal aid available. In the Court’s view this was enough to infringe her

rights under Article 6 (1). 31

While Article 6 does not allow for a right to appeal a criminal conviction,

Protocol No. 7, Article 2 provides such a right.

Article 6 (1): “Civil Rights and Obligations”

In the Commission’s view, the term “civil rights and obligations” “cannot

be construed as a mere reference to the domestic law of the High Contracting

Party concerned, but, on the contrary, relates to an autonomous concept

which must be interpreted independently of the rights existing in the law

of the High Contracting Parties.” 32

Both the Commission and Court give a broad interpretation to the concept

of “civil rights and obligations.” In (Ringeisen v. Austria) (1971), the Court

held these terms to be autonomous. Hence, the distinction between private

and public law matters is inconsequential. Ringeisen appealed to an

Austrian Regional Land Commission, an administrative tribunal, to

transfer farmland for building purposes. The legal question was did the

proceedings before an administrative body, instead of a court, constitute a

setting where the idea of a “civil right” and standards of a fair trial should

apply? The Court concluded such proceedings were covered by Article 6 (1).

It argued that the nature of the tribunal did not matter, nor did the

character of the legislation, the basic issue, the Court found, was that if

Ringeisen had correctly completed the terms of purchase in the land

contract, he was meeting his obligations under Austrian law. Therefore the

Regional Commission was simply applying Austrian Administrative law

and its decision “was to be decisive for the relations in civil law” in the sale. 

30 Golder judgment of February 21, 1975, Series A. No. 18, in Gomien, Harris, and Zwaak, 1996, p. 159. 31 Robertson and Merrills, 1993, p. 87. 32 Application 1931/63, cited in Robertson and Merrills, 1993, p. 88.
165

It is important to note there is no stricture that a dispute must be heard by a

body which meets the Article 6 (1) criteria at every stage. Article 6 (1) states

“everyone is entitled to a fair and public hearing within a reasonable time

by an independent and impartial tribunal established by law. Judgment shall

be pronounced publicly.” The Commission and Court accept the position

that, while such specialized administrative tribunals do not always provide

the requisite due process guarantees, the Convention is not violated

provided they are subject to a judicial body which can take full jurisdiction

of the case and render an independent, impartial, and fair verdict. 33

In (Doorson v. the Netherlands) (1996) Doorson was arrested in April 1988

on several drug possession charges. Six drug users who preferred to remain

anonymous for fear of reprisals identified him to police, as did two other

witnesses, one of whom never appeared at the trial, the other of whom

withdrew his earlier statement. Doorson’s counsel appealed to the Court

under Article 6 (1) and 6 (3), citing his inability to question the witnesses.

The Court disagreed, arguing that a fair trial is one in which defense interests

must be balanced with those of the state, in particular to protect its witnesses

against possible reprisals and allowed the witnesses to remain anonymous. 34

Criminal Charges

A leading case on due process in a criminal charge is (Barberá, Messegué

and Jabaro) (1988). The trio were arrested in Barcelona in 1980 shortly

after a Catalan business representative had been assassinated by a terrorist

group. Although the suspects signed a statement acknowledging their 

role in the killings, they later repudiated the confession, arguing they had

been forced to sign the document after being ill-treated. After a one day

hearing in Madrid two years later, two of the defendants were convicted 

of murder, the other of a lesser charge. In their appeal to the Commission,

and later the Court in Strasbourg, they complained they were denied a

fair trial. The Court concluded Article 6 (1) had been violated for several

reasons, evidence of a key witness was on file but the defense was never

given an opportunity to examine the witness, the conditions under 

which the confessions were obtained were flawed, there were reports of

evidence, including documents and weapons, entered at the trial but

never produced by the prosecution for defense examination, two trial

judges were substituted at the last moment, suggesting they had not

familiarized themselves with the 1,600 page case before the one day trial

was held, plus numerous other procedural flaws. 35

33 Robertson and Merrills, 1993, p.91. 34 ECH-96-1-005, in Bulletin on European Case Law, Council of Europe, Strasbourg, 1996, 

pp. 134-135.

35 Robertson and Merrills, 1993, pp. 94-95. The case is Series A, No. 146.
166

Both the Commission and the Court give broad interpretation as to what

constitutes a criminal charge. For example, in (Eckle v. Federal Republic 

of Germany) (1982) the Court said a criminal charge is an “official

notification given to an individual by competent authority of an allegation

that he has committed a criminal offense.” In (Foti and Others v. Italy)

(1982) the Court broadened the concept to include “other measures

which carry the implication of such an allegation and which likewise

substantially affect the situation of the suspect.” 36

The Equality of Arms Principle

Procedural equality, or equality of arms, applies equally to civil and

criminal cases, but is raised more often in criminal cases where the question

of whether or not the accused has been placed at a disadvantage in

relation to the prosecution is raised. Equality of arms issues are raised both

in relation to the treatment of witnesses and to the whole institutional

framework in which the trial is held. Gomien writes: “The most important

of the unarticulated principles of Article 6 is the ‘equality of arms’- the

idea that each party to a proceeding should have equal opportunity to

present his case, and that neither should enjoy any substantial advantage

over his opponent.

The issue of equality of arms has arisen in numerous cases, such as

(Neumeister v. Austria) (1968). Here the Court said both parties in a

criminal proceeding must be represented at all points when a case is under

examination. In (Bonisch v. Austria) (1985) the Court held that expert

witnesses for both sides must be heard, and in (Feldbrugge v. Netherlands)

(1986), it concluded each party must be given the opportunity to oppose

the arguments of the other.” 37

Article 6 (1): Independent and Impartial Tribunal Established by Law

Independence and impartiality are central to any concept of a fair judicial

system, and the case law that has developed around this concept has

interpreted it to mean courts must be both independent of the executive

branch and of the parties to the case. The Court has looked at the manner

in which members are named to such bodies, and the length of their

appointments. A difficult issue for the Court to weigh is the presence of

civil service employees on administrative tribunals. On the one hand,

their expertise in a given subject, such as labor law or social security

regulations, is invaluable; on the other, their presence risks challenges

that the tribunal will be unduly balanced in favor of the State. Much of

36 Gomien, 1993, p.39. 37 Gomien, 1993, p. 41-42.
167

the case law on impartiality has centered on the role of judges who have

performed dual functions, such as being both trial judge and previously

being a prosecutor in a case. For example, in Piersack the President of the

Belgian Assize Court had once been a Senior Public Prosecutor in a case

which was now before his Court. The European Court, accepting the

Commission’s earlier finding, concluded Article 6 (1) had been violated,

saying “what is at stake is the confidence which the courts in a democratic

society must inspire in the public and above all, as far as criminal

proceedings are concerned, in the accused.” 38

Gomien writes: “Not only must courts themselves be empowered to

determine the outcome of cases, but the State may not arbitrarily transfer

jurisdiction between courts and administrative tribunals of various kinds.

The principle underlying the independence and impartiality clause is

separation of powers, but neither the Convention itself nor the Convention

organs dictate the means by which this requirement should be met. However,

it is clear from the case law that members of the executive branch should

not be charged with prosecution of the law....In the case of (DeCubber v.

Belgium) (1984), it was not acceptable for the investigating judge and the

trial judge to be the same person, and in the (Piersack v. Belgium) case

(1982) the same result obtained when the president of the tribunal had

earlier been the public prosecutor on the case being adjudicated.” 39

Article 6 (1): The “Reasonable Time” Standard

Three factors have emerged as the test of whether or not judgment is

delivered within a reasonable time, the complexity of the case, the manner

in which judicial authorities have dealt with it, and the applicant’s own

conduct in the case. What constitutes a “reasonable time” standard differs

in criminal and civil cases; in criminal cases the time begins when a

competent authority notified an individual they have committed a criminal

offense. (Deewer v. Belgium) (1980). “The Court has rejected governmental

arguments that inadequate staffing or general administrative inconvenience

are sufficent justifications for failure to meet the ‘reasonable time’ standard

(DeCubber v. Belgium) (1984) and (Guincho v. Portugal) (1984).” 40

However, in another case the Court held in (Pretto and Others v. Italy)

(1983) six years of procedure at the local level and six years of review in

Strasbourg was still within the “reasonable time” standard.

In several civil divorce cases the Court held Article 6 was violated when a

case took nine years (Bock v. Federal Republic of Germany) (1989), when it

38 Series A, No. 154, quoted in Robertson and Merrills, 1993, p. 99. 39 Gomien, 1993, p. 42. 40 Gomien, 1993, p. 43.
168

took over seven years to move a case from one level to another of the

French court system (H v. France) (1989) and when it took over six years

to reach a final determination and establish damages in a Portuguese case

(Neves e Silva v. Portugal) (1989).

Public Hearings and the Pronouncement of Judgment

Article 6 (1) provides “a fair and public hearing” for everyone and that

“judgment shall be pronounced publicly.” The Court’s position is:

“The public character of proceedings before the judicial bodies referred to

in Article 6 (1) para 1 protects litigants against the administration of justice

in secret with no public scrutiny; it is also one of the means whereby

confidence in the courts, superior and inferior can be maintained. By

rendering the administration of justice visible, publicity contributes to the

achievement of the aim of Article 6 (1) para 1, namely a fair trial, the

guarantee of which is one of the fundamental principles of any democratic

society.” 41

Several Article 6 issues were touched in (John Murray v. United Kingdom)

(1996). Murray was arrested on January 7, 1990, in the house where a

provisional Irish Republican Army informer had been held captive.

Murray was denied access to an attorney for 48 hours, the argument being

it would interfere with police operations against terrorism. Murray kept

silent during twelve police interviews and this was held against him at

trial. The Court, however, found that his insistence in maintaining

silence throughout the proceedings did not amount to a criminal offense

or to contempt of court under Northern Irish legislation. 42 Additionally,

the Court found the denial of access to legal counsel to the defendant for

48 hours when he was detained by police was a breach of Article 6 (1).

Article 6 (2): The Presumption of Innocence

The important idea of the presumption of innocence is found in Article 6.(2).

The focus on presumption of innocence begins with the domestic court;

did local judges act in such a way that the presumption of innocence was

evident in the proceeding from the beginning? It is the prosecutor’s role to

prove guilt, and the accused must be allowed the right of offer evidence in

rebuttal. A key early case was (Minelli v. Switzerland) (1983). Here the

petitioner claimed that the assessment of court costs and compensation in

a case against him which had expired under the statute of limitations

41 Pretto case, Series A, No. 71, para 21, in Robertson and Merrills, 1993, p. 102. 42 ECH-96-1-001, in Bulletin on Constitutional Case Law, Council of Europe, Strasbourg, 1996, 

pp. 130-131. 
169

violated presumption of innocence as established in Article 6 (2). In

agreeing, the Court wrote: “Without the accused’s having previously been

proved guilty according to law and, notably, without his having had the

opportunity of exercising his rights of defense, a judicial decision

concerning him reflects an opinion that he is guilty.”

Five years later, in (Barberá, Messegué and Jabaro v. Spain) (1988) the

Court set standards for compliance with the Article: “When carrying 

out their duties, the members of a court should not start with the

preconceived idea that the accused has committed the offense charged;

the burden of proof is on the prosecution, and any doubt should benefit

the accused. It also follows that it is for the prosecution to inform the

accused of the case that will be made against him, so that he may prepare

and present his defense accordingly, and to adduce evidence sufficient to

convict him. 43

Many presumption of innocence cases treat the question of pre-trial

publicity. Here the applicant must show that their conviction was

adversely affected by the publicity, which may be difficult if the accused

has contributed to raising the publicity level, as in the case of a terrorist

gang or publicity-seeking defendant. 

A recent commentary notes: “The guarantee of the presumption of

innocence is one of the fundamental principles of Article 6. It cannot

dictate the impossible: that no innocent person shall ever be found guilty.

But in return everyone—even the guilty—has the right to be presumed

innocent until final judgment. The right to be presumed innocent has

several dimensions and effects, some relative, some absolute. The most

obvious and well known application is the principle in dubio pro reo: the

accused is entitled to the benefit of the doubt. This means that the burden

of proof is primarily on the prosecution, and that even if the Court itself

has a duty to investigate the facts, as is the case in some systems, any

doubts about the evidence must favor the defense. The right to be

presumed innocent attaches only to an individual charged with a criminal

offense, and thus does not arise with the ‘determination of civil rights and

obligations.’ ” 44

Article 6 (3): The Rights of the Defense

Article 6 (3) enumerates five specific rights of the defense in a criminal

case. Taken together, their intent is to ascertain that prosecution and

defense are playing on a level playing field. Everyone is “to be informed

43 Gomien, 1993, pp. 44-45. 44 Gomien, Harris, and Zwaak, 1996, p. 182.
170

promptly, in a language which he understands, and in detail, of the nature

and cause of the accusation against him.” Article 6 (3) (a). In the 1989

Brozicek case the Court found in favor of a German resident who

complained that an Italian court’s charges against him were never

properly made known to him, and that his trial in absentia was therefore

invalid. He had been sent two letters in Italian, one to the wrong address,

and the Italian authorities were unable to prove that Brozicek had

adequate fluency in that language sufficient to understand the charges

brought against him.

In a related case, the Court found against the defendant, Kamasinski, 

who had been arrested in Austria on several charges of fraud and

misappropriation. The defendant did not understand German, so an

interpreter was provided, along with legal assistance. Kamasinski argued

that his due process had been violated because the charges had been

presented him in oral rather than written form, but the Court concluded

from the evidence, and from the defendant’s behavior, that he had

sufficient knowledge of the charges against him, and that therefore his

rights had not been violated under the provisions of Article 6.

Article 6 (3) (b): Time and Facilities to Prepare a Defense

The issue of adequate time to prepare a defense is important and many

cases under this article have come about because of defendants’ finding

undue delays in the trial and important information being withheld from

them. Attorneys need time to prepare cases, especially human rights cases

which are not the usual practice of most lawyers. Also, if an attorney is

replaced on a case, it requires time for a new attorney to prepare the case

for trial. A defendant in a criminal case, generally represented through

their attorney, should be provided with the case assembled by the

prosecution, including both the specific charges and the legal reasoning

and evidence used to support the charges. This is the intent of Article 6 (3).

Additionally, the Commission has held that ‘facilities’ as mentioned in

paragraph (b) mean allowing an accused person to become familiar with

the outcome of the authorities’ investigations. To meet the standards of

this provision, the prosecution is required to allow access to all relevant

documentation. 45

Article 6 (3) (c): The Right to Legal Assistance

The accused has the right “to defend himself in person or through legal

assistance of his own choosing or, if he has not sufficient means to pay for

45 Robertson and Merrills, 1993, p. 110.
171

legal assistance, to be given it free when the interests of justice so require.”

The Court has established that, in a criminal case, a defendant without

legal assistance is entitled to counsel. If the defendant is unable to pay for

the lawyer’s services, the cost should be assumed by the Court. A

significant feature of Article 6 (3) (c) is that it guarantees the accused not

merely pro forma legal assistance, but effective legal assistance. In the Artico

case an Italian court had named an attorney to assist a defendant in the

preparation of his case. The attorney, claiming ill health and a busy work

schedule, declined the case. The applicant invoked Article 6 (3) (c) to the

Court, and the Italian government responded it had fulfilled its obligations

in appointing the original lawyer and had no further responsibilities in

this regard. The Court found this totally unacceptable:

“The Court recalls that the Convention is intended to guarantee not

rights that are theoretical or illusory but rights that are practical and

effective; this is particularly so of the rights of the defense in view of the

prominent place held in a democratic society by the right to a fair trial,

from which they derive...As the Commission’s Delegates correctly

emphasized, Article 6 (3) (c) speaks of ‘assistance’ and not of ‘nomination’...

Adoption of the government’s restrictive interpretation would lead to

results that are unreasonable and incompatible with both the wording of

sub-paragraph (c) and the structure of Article 6 taken as a whole; in many

instances free legal assistance might prove to be worthless.” 46

An additional argument advanced by the government in this case was

that, while the applicant could not afford a lawyer, it was not obliged to

provide legal assistance because the case was so clear-cut no defense was

necessary. The Court rejected this argument.

Article 6 (3) (d): The Right to Confront Witnesses

Here the accused has the right “to examine or have examined witnesses

against him and to obtain the attendance and examination of witnesses

on his behalf under the same conditions as witnesses against him.” In a

finding the Commission has noted this “does not permit an accused person

to obtain the attendance of any and every person and in particular of one

who is not in a position by his evidence to assist in establishing the truth.” 47

The Court has been consistent in its jurisprudence in finding the

testimony of anonymous witnesses unavailable for examination by the

defence to be a violation of Article 6 (3) (a). Three leading cases where

witnesses were given special protected status are (Kostovski v. Netherlands)

46 Series A, No. 37 para. 33, in Robertson and Merrills, 1993, p. 113. 47 Application 753/60 in Robertson and Merrills, 1993, p. 114.
172

(1989), (Windisch v. Austria) (1990), and (Unterpertinger v. Austria)

(1986). Unterpertinger was convicted from testimony given by his wife

and stepdaughter, evidence he could not challenge since they had been

granted special status under Austrian law. The Commission accepted the

Austrian government’s position that, since neither side could question the

exempted witnesses, no basic inequality existed between the two parties

to the case. Still, the Court held that the defendant’s Article 6 rights had

been violated, since the local court had allowed the witnesses’ in support

of several key accusations against the defendant, who had been prohibited

from confronting his accusers. 48

Kostovski had a long criminal record and, once he had escaped from

prison, was seen by two witnesses participating in a bank robbery. Fearing

reprisals, they declined to appear at his trial. Kostovski was convicted on

the basis of these anonymous reports given to the police and examining

magistrates. Notwithstanding, the Commission and Court held that the

applicant’s rights had been breached under Article 6 (3) (d). Robertson

and Merrills write: “In principle, the Court explained, all the evidence has

to be produced in the presence of the accused at a public hearing with a

view to adversarial argument. However, statements obtained at the pretrial stage could be used as evidence provided the rights of the defense had

been respected. As a rule, those rights required that the accused be given,

at some stage in the proceedings, an adequate and proper opportunity to

challenge and question a witness against him. In the Court’s view such an

opportunity had not been given in the present case. At no stage could the

anonymous witnesses be questioned directly by the applicant or his

representative. In addition, written questions which the applicant or his

representative was allowed to put had been restricted by the decision to

preserve the witnesses’ anonymity. Indeed, this had compounded the

applicant’s difficulty because ‘if the defense is unaware of the identity of

the person it seeks to question, it may be deprived of the very particulars

enabling it to demonstrate that he or she is prejudiced, hostile, or

unreliable.’ ” 49

The Court’s actual wording in this case is instructive:

“If the defense is unaware of the identity of the person 

it seeks to question, it may be deprived of the very

particulars enabling it to demonstrate that he or she is

prejudiced, hostile or unreliable. Testimony or other

declarations inculpating an accused may well be

designedly untruthful or simply erroneous and the

48 Gomien, 1993, pp. 48-49. 49 Series A, No. 166 para.42, in Robertson and Merrills, 1993, p. 115.
173

defense will scarcely be able to bring this to light if it

lacks the information permitting it to test the author’s

reliability or cast doubt on his creditability. The dangers

inherent in such a situation are obvious.” 50

The Unterpertinger case presents a different set of issues. Here the

defendant was convicted of bodily harming his wife and stepdaughter,

both of whom made statements to the police, neither of whom would

testify in the actual case. Following Austrian practice, their statements

were read in court and this constituted the principle evidence against

Unterpertinger. Robertson and Merrills write: “Examining the

circumstances of the applicant’s trial, the Court pointed out that his

conviction was based mainly on the statements of his wife and

stepdaughter which had been treated by the Austrian courts not simply as

items of information, but as proof of the truth of the accusations against

him. Although it was for the Court of Appeals to assess the evidence, it

had refused to allow the applicant to adduce evidence to put the

creditability of his wife and stepdaughter in doubt. In view of this the

applicant had been convicted on the basis of ‘testimony’ in respect of

which his defense rights were appreciably restricted. Accordingly here, as

in the Kostovski case, the Court concluded that the applicant did not have

a fair trial and there was therefore a breach of Article 6 (1), taken together

with the principles inherent in Article 6 (3) (d).” 51

The Question of Effective Remedies

The right to a fair hearing provisions of Article 6 should be considered in

conjunction with several other articles, including Protocol No. 7, Articles

2 and 4 and Article 13. The Convention’s Article 13 states “an effective

remedy before a national authority” is available to any person whose

rights have been violated. Gomien notes: “Although these words appear

to present a fairly straightforward legal concept, Article 13 has presented

more problems of interpretation for the Commission and the Court than

has any provision of the Convention.” 52 Key cases include (Klass and

Others v. Federal Republic of Germany) (1978), (Silver and Others v. United

Kingdom) (1983), (Leander v. Sweden) (1987) and (Abdulaziz, Cabales and

Balkandali v. United Kingdom) (1985). In Silver the Court wrote: “Where

an individual has an arguable claim to be the victim of a violation set

forth in the Convention, he should have a remedy before a national

authority in order both to have his claim decided and, if appropriate, to

obtain redress.”

50 Kostovski judgment of November 20, 1989, Series A. No. 166, p. 20, para 42. 51 Robertson and Merrills, 1993, p. 117. 52 Gomien, 1993, p. 49.
174

Article 7: Freedom from Retroactive Criminal Legislation 

The specific intent of Article 7 is to protect an individual from being

convicted of a criminal charge that did not exist in law at the time the act

was committed. The same Article prohibits a State from imposing a more

severe penalty on an individual criminal offender than the penalty in

force at the time the act was committed. Article 7’s first paragraph

corresponds to the comparable Article in the Universal Declaration.

There is a pattern to the drafting of Articles 8 through 11, establishing

rights in the first paragraph, limiting them in the second, perhaps reflecting

the political caution drafters of the late 1940s, writing when the future

powers of the state and their relation to individual rights were by no means

clear. If the Convention were drafted today, it is doubtful such a formula

would be employed, since it makes it difficult to enunciate what exactly is

a right. Additionally, in a mature democracy courts can be expected to

match the statement of rights with applicable case law and precedent in

deciding cases. A result of this green light–red light approach to human

rights law drafting is a jurisprudence that is elaborate, nuanced, and at

times contradictory. For example, the tension between individual and

states’ rights is described in a Court decision: “Some compromise between

the requirements for defending a democratic society and individual rights

is inherent in the system of the Convention...a balance must be sought

between the exercise by the individual of the right guaranteed...and the

necessity...for the protection of the democratic society as a whole.” 53 The

Court has rejected any idea that there is any doctrine of inherent limitations

to rights and freedoms listed in the Convention and instead applies a twofold test in cases where the state has claimed such a restriction: first, was

the interference “in accordance with law;” second, was it “necessary in a

democratic society.” If the interference was not “in accordance with law,”

the Court will find a violation against the state. The Court has held: “It

would be contrary to the rule of law for the legal discretion granted to the

executive to be expressed in terms of unfettered power. Consequently, the

law must indicate the scope of any such discretion conferred on the

competent authorities and the manner of its exercise with sufficient

clarity, having regard to the legitimate aim of the measure in question, to

give the individual adequate protection against arbitrary interference.” 54

Commenting on the “necessary in a democratic society” clause, Gomien,

Harris, and Zwaak write: “The supervisory organs have rejected the

53 Klass judgment of September 6, 1978, Series A, No. 28, p. 28, para 59. 54 Malone judgment of August 2, 1984, Series A, No. 82, p.32, para 67.
175

notion that states may apply the ‘necessary in a democratic society’ clause

in a vacuum. They must always tie it to one of the more specific clauses in

the same restricting provision. A few of these specific restrictions appear

in several Articles: others appear in only one or two. ‘Public safety’ and

‘the protection of health or morals’ appear in all four Articles. ‘National

security’ and ‘ the prevention of disorder or crime’ appear in Articles 8, 10,

and 11; ‘protection of the rights and freedoms of others’ in Articles 8, 9,

and 11. Three of the four articles contain unique restrictions as well.

Article 8 mentions ‘the economic well-being of the country,’ Article 9 ‘the

protection of public order,’ Article 10 ‘territorial integrity,’ ‘the protection

of the reputation or rights of others,’ ‘preventing the disclosure of

information received in confidence,’ and ‘maintaining the authority and

impartiality of the judiciary.’ 55

Article 8: The Right to Respect for Private and Family Life, Home 

and Correspondence

(See also Articles 8 and 12 and Protocol No. 7, Article 5)

A difference between Article 8 and its companion documents, Article 16

(3) of the Universal Declaration and Article 23 (1) of the Covenant on

Civil and Political Rights, is that Article 8 focuses on individual members

of a family, whereas the family unit as such is the subject of the other

instruments. Gomien, Harris, and Zwaak state: “The doctrine of noninterference by the state is, as far as Article 8 is concerned, firmly

established in the right to privacy. In a democratic society, the individual

is entitled to live his daily life without the state’s monitoring or

controlling his activities. The Court confirmed this primary duty of the

state to abstain from interference in its judgment in the Airey case, stating

that the object of Article 8 is ‘essentially that of protecting the individual

against arbitrary interference by the public authorities.’ For example,

private citizens have a general right to receive uncensored mail, to live

without publicity, and to establish and develop relationships with other

persons.” 56

Robertson and Merrills quote a definition of privacy, with reference to

Article 8: lumping together the four headings of privacy, family life, home

and correspondence. 57

Privacy is defined as:

55 Gomien, Harris, and Zwaak, 1996, p. 215. 56 Gomien, Harris, and Zwaak, 1996, p. 228-229. 57 Robertson and Merrills, 1993, p. 128.
176

“1. Protection of the individual’s physical and mental inviolability and a

person’s moral and intellectual freedom.

2. Protection against attacks on an individual’s honor or reputation and

assimilated torts.

3. Protection of an individual’s name, identity or likeness against

unauthorized use.

4. Protection of the individual against being spied on, watched or

harassed.

5. Protection against disclosure of information covered by the duty of

professional secrecy.” 58

Homosexuality

An issue facing legal systems in Central and Eastern Europe is how to

treat questions involving homosexual activity. Robertson and Merrills

write: “Whether the punishment of homosexuality infringes Article 8 is an

important question which has been considered on several occasions. In an

early decision the Commission took the view that a German law which

criminalized homosexual practices constituted an interference with

private life but could be justified under Article 8 (2) as necessary for the

protection of health and morals. Subsequently, however, in the Dudgeon

case the Commission held that a similar law in Northern Ireland could

not be so justified and when the matter was then referred to the Court, it

came to the same conclusion. Soon afterwards equivalent legislation in

the Irish Republic was challenged in the Norris case and again the decision

was that it violated the Convention. As the reasoning in these cases

would appear to be generally applicable, it can now be regarded as settled

that the criminalization of homosexuality is contrary to Article 8.” 59

Articles 8 to 11: Grounds for Restricting the Exercise of Rights

(See Articles 8 to 11, paragraph 2, and Article 2 of Protocol 4, plus Articles

17 and 18). In these articles, as noted above, specific rights and freedoms

are enumerated in the first paragraph, then grounds to limit the rights and

freedoms follow. The intent of this seemingly contradictory approach to

legal drafting is to balance individual rights with the broader interests of

the state. Several western democracies take a different approach, the

rights are clearly stated in a Bill or Charter of Rights and the Courts,

through precedent and case law, establish their parameters. Some newly

independent states in Central and Eastern Europe have expressed concern

that the restrictive clauses, familiar from the earlier Russian Constitution,

58 J. Velu, in Privacy and Human Rights, pp.12-25, in Robertson and Merrills, 1993, p. 126. 59 Dudgeon is in Series A, No. 45, Norris is in Series A, No. 142, in Robertson and Merrills, 1993, 

p. 129.
are easy to invoke as ways of limiting individual rights and freedoms. As

might be expected, this issue provoked much debate within the

Commission and Court and can be expected to do so as more central and

eastern European countries join the Council of Europe. 

Given the broad nature of the restrictive clauses, the Commission sought

a narrow interpretation of their meaning in a landmark case, (Sunday

Times v. United Kingdom) (1979). Here the court wrote: 

“Strict interpretation means that no other criteria than

those mentioned in the exception clause itself may be at

the basis of any restrictions, and these criteria, in turn,

must be understood in such a way that the language is

not extended beyond its ordinary meaning.”

“Strict interpretation” requires any limitations of rights and freedoms to

be both lawful and “necessary in a democratic society.” In considering a

case where a state has employed one or more of this article’s limiting

clauses, Commission and Court ask was the State action done “in

accordance with law”. If the action does not meet this legal test, the

Commission or Court will declare a violation and the review process is

terminated. Assuming, however, that the legality standard is met, the

Commission or Court will next consider if the action can be classified as

“necessary in a democratic society,” having as its purpose one of the topics

listed in the applicable article, such as the preservation of public order,

national security, or the protection of health or morals. 60

Interpreting “in accordance with law” and “prescribed by law”

In the Sunday Times case two standards of lawfulness were established,

that the law must be both accessible and foreseeable to the citizen, and its

application not be a capricious act by the State:

“Firstly, the law must be adequately accessible: the

citizen must be able to have an indication that is adequate

in the circumstances of the legal rules in a given case.

Secondly, a norm cannot be regarded as ‘law’ unless it is

formulated with sufficient precision to enable the

citizen to regulate his conduct.”

In (Malone v. United Kingdom) (1984) the Court established that use of

State power must be for legitimate aims:

177

60 Gomien, 1993, pp. 53-54.
178

“It would be contrary to the rule of law for the legal

discretion granted to the executive to be expressed in

terms of an unfettered power. Consequently, the law must

indicate the scope of any such discretion conferred on by

the competent authorities and the manner of its exercise

with sufficient clarity, having regard to the legitimate

aim of the measure in question, to give the individual

adequate protection against arbitrary interference.”

Interpreting “necessary in a democratic society”

To the requirements of lawfulness described in “In accordance with law”

and “prescribed by law” comes a third category, the restriction must be

one that is “necessary in a democratic society.” Here the Court has given

wide discretion to a State to determine what is democratic within its own

boundaries. In (Handyside v. United Kingdom) (1976) the Court wrote:

“By reason of their direct and continuous contact with

the vital forces of their countries, State authorities are

in principle in a better position than the international

judge to give an opinion on the exact content of these

requirements...as well as on the ‘necessity’ of a

‘restriction’ or ‘penalty’ intended to meet them.”

In the Handyside case the Court noted, as it has in several cases, that courts

and countries have an obligation to both promulgate local and European

standards. For instance, a country cannot invoke vague concepts of general

unrest or necessity as grounds to limit individual rights and freedoms (Greek

case) (Comm. Rept. of 1969). Also, the Commission and Court apply

modern standards of political governance in their review of such cases,

promoting the growth of political pluralism, tolerance, and broadmindedness

in civic governance, none of which were stated in the Convention, which

was written in the late 1940s, but all of which have become part of later

UN, OSCE and Council of Europe political-legal thought.

How is the “necessary in a democratic society” standard to be interpreted?

Convention bodies have devised a two-part analysis; first, they ascertain if

the restriction’s purpose is legitimate. The Court found that controlling

prisoners’ correspondence (Golder and Silver), or prohibiting homosexual

activity for young men under twenty-one are legitimate aims (Dudgeon v.

United Kingdom) (1981) and (Norris v. Ireland) (1988). Second, the

question is are the means used to restrict the particular right or freedom

“proportionate to the legitimate aim pursued.” Gomien notes: “This

requirement is often more difficult for the State to meet. For example, in
179

the prisoners’ correspondence cases, the Court held that the authorities

could not prevent a prisoner from writing to his lawyer (Golder), and could

only censor letters threatening violence or planning future crimes (Silver).

In the homosexuality cases, the Court refused to accept that criminalizing

homosexual acts of consenting adults met the proportionality standard.” 61

Article 8: Rights to Privacy, Family Life, Home and Correspondence, 

to Marry and Found a Family, to Equality of Spouses

(This Article should be considered in conjunction with Article 12 and

Protocol 7, Article 5)

It is difficult to break this broad category of rights down into discrete

units, since many of the topics overlap. This discussion, therefore, will

highlight key issues raised in the various categories.

A leading case is (Marckx v. Belgium) (1979) where a mother and her natural

child challenged Belgian laws requiring the mother to obtain legal status

for her daughter by taking certain specific steps. The Court ruled the State’s

requirements to constitute a violation of the right of family life. It held:

“When the State determines in its domestic legal system

the regime applicable to certain family ties...it must act

in a manner calculated to allow those concerned to lead

a normal family life.”

In (Airey v. Ireland) (1979) the Court found against the Irish government

for declining legal assistance to a woman who sought a separation from a

violent husband. The Court held:

“Although the object of Article 8 is essentially that of

protecting the individual against arbitrary interference

by the public authorities, it does not merely compel the

State to abstain from such interference: in addition to

this primarily negative undertaking, there may be

positive obligations inherent in an effective respect for

private and family life.”

Electronic Surveillance and Data Collection on Individuals

In (Klass and Others v. Federal Republic of Germany) (1978) during a

criminal investigation petitioners claimed government surveillance

61 Gomien, 1993, pp. 56-57.
180

violated their privacy rights. However, the Court found that the Federal

Republic of Germany laws on surveillance were carefully drafted and it

followed that the State’s need to protect itself against “imminent dangers”

threatening its “free democratic constitutional order” justified its actions.

Beddard writes: “The Klass case, which was referred to the Court in 1978,

concerned surveillance and interception of mail and telecommunications

in Germany. The applicants, a group of lawyers, complained that

legislation passed in 1968 restricted the right of secrecy of mail, post and

telecommunications in that it authorized surveillance, in certain

circumstances, without the need for informing the person concerned. The

Court was in no doubt that such a procedure was contrary to Article 8, but

the cardinal issue was whether the interference was justified under

Paragraph 2. That Paragraph, emphasized the Court, must be narrowly

interpreted. It was of the opinion that ‘Powers of secret surveillance of

citizens, characterizing as they do the police state, are tolerable under the

Convention only in so far as strictly necessary for safeguarding democratic

institutions.’ The Court felt that, in view of the threat posed to democracy

nowadays by highly sophisticated forms of espionage and by terrorism,

some powers of secret surveillance were necessary. Whatever system is

employed, however, there must exist adequate and effective guarantees

against abuse. After examining the German legislation the Court came to

the conclusion that no breach of Article 8 could be found.” 62

In (Malone v. United Kingdom) (1984) the Court dealt with police

wiretapping, finding the United Kingdom law on wiretapping overly

vague. The Court wrote:

“It would be contrary to the rule of law for the legal

discretion granted to the executive to be expressed in

terms of an unfettered power. Consequently, the law

must indicate the scope of any such discretion conferred

on the competent authorities and the manner of its

exercise with sufficient clarity, having regard to the

legitimate aim of the measure in question, to give the

individual adequate protection against arbitrary

interference.” In two French cases the Court held that

French laws failed to meet the legality requirement

enumerated in Article 8. (Huvig v. France) (1990) and

(Kruslin v. France) (1990).

In (Gaskin v. United Kingdom) (1989) the Court found against the State for

failing to heed the applicant’s requests for access to his case records. Gomien

62 (1978) Series A, No. 28, in Beddard, 1993, p. 101.
181

writes: “In this case the United Kingdom authorities had refused to supply

a young man who had spent virtually his entire childhood in a series of

foster homes, with all the records relating to his time in public care, on

the grounds that the information therein had originally been provided in

confidence and that consent could not be obtained from those who had

supplied it. The Court first balanced the interests of the young man, in

obtaining information about his own life, against those of third parties, in

preserving confidentiality, and the State, in encouraging the compilation

of objective and reliable information. Although finding such ‘balancing’

within the scope of the State’s margin of appreciation, the Court

nevertheless found a violation of Article 8 in that no procedure existed

whereby an independent authority could take a final decision to release

records in instances where a contributor either could not be found or

unreasonably witheld his consent.” 63

Family Life, the Right to Marry, the Equality of Spouses

Family life has been interpreted by Commission and Court to include 

ties between near relatives including, in addition to the nuclear family,

grandparents and grandchildren. Commission and Court decisions tend 

to favor vertical family relationships, such as those including minor

children, parents, and grandparents, to horizontal ones, like siblings,

nieces, and nephews.

Gomien writes: “The strongest evidence of the existence of ‘family life’ is

proof that those claiming the right already enjoy such a life. However, the

Court had held that ‘this does not mean that all intended family life falls

entirely outside [Article 8’s] ambit’ (Abdulaziz, Cabales and Balkandali v.

United Kingdom) (1985) in which women who were legally married or

engaged have been unable to establish fully normal family life due to

restrictive immigration laws in force in the United Kingdom). Conversely,

the Court has held that the State cannot legitimately act to break up a

family unit on the divorce of parents (Berrehab v. Netherlands) (1988), in

which a Moroccan father who had married and divorced in the Netherlands,

but who maintained close contacts with his very young daughter and

contributed regularly to her material support, successfully claimed that a

deportation order against him constituted a violation of Article 8.” 64

On issues involving parents and children, a significant number of cases

have developed. The Marckx case deals with the legal consequences of

illegitimacy. Under Belgian law, only if the mother formally acknowledges

maternity of an illegitimate child can the child be declared legitimate.

63 Gomien, 1993, pp. 64-65. 64 Gomien, 1993, pp. 65-66.
182

Notwithstanding, the child’s rights to inheritance and gifts were

appreciably less than those of a legitimate child. In Marckx a mother and

her illegitimate daughter took issue with these restrictions, basing their

claims on Articles 8 and 14 and Article 1 of Protocol No. 1. Both

Commission and Court held in favor of the applicants under Article 8.

The right of the applicants to respect for their family life was found

violated by the Belgian law’s requirements. Regarding inheritance rights,

the bodies concluded Article 8 had not been violated because this statute

does not discuss the question of inheritance. 65

On another issue, that of monitoring electronic devices, the issue is to

what extent is monitoring of communications by electronic devices

compatible with Article 8. Convention bodies must tread a careful path.

There are two conflicting issues: in many countries, the control of security

questions is guided by rather vague language, not often subject to judicial

review. Thus the requirement that the action be “in accordance with the

law” must be balanced against the national security interest. Robertson

and Merrills believe the Commission and Court have done this quite

successfully, “neither setting an unreasonably strict standard, nor being

too easily satisfied. Thus in the Malone case the Court and the

Commission found that the English law on the interception of telephone

communications was insufficiently precise and in the Kruslin and Huvig

cases came to the same conclusion as regards the French scheme. In the

Klass case, on the other hand, which concerned German arrangements for

secret surveillance which were based on legislation laying down strict

conditions and procedures, this requirement was found to be satisfied.” 66

Article 9: Freedom of Thought, Conscience and Religion

“Thought,” “belief,” conscience,” and “religion” cover a wide spectrum.

Gomien writes: “To date, the Commission has only once found a breach

of Article 9 (Darby v. Sweden) (Comm. Rept. of 1989): the Court has

never done so. In part, this is because the rights of freedom of thought,

conscience and religion are largely exercised inside an individual’s heart

and mind. It is only when one manifests one’s thoughts or beliefs that the

State will become aware of their existence or character. But at that very

point a given manifestation may also raise issues in the realm of freedom

of expression (Article 10) or another article of the Convention. Where 

a case raises issues under Article 9 in addition to other articles, the

Commission and Court invariably choose to limit their review to alleged

violations of those other articles.” 67

65 Robertson and Merrills, 1993, p. 133. 66 Series A, No. 176 A and 176 B, in Robertson and Merrils, 1993, p. 143. 67 Gomien, 1993, p. 69.
183

For example in once case (Arrowsmith v. United Kingdom) (Comm. Rept.

of 1978) a British pacifist said her freedom of belief was being violated 

by the United Kingdom Government when it prohibited her from

distributing leaflets to soldiers, encouraging them to become conscientious

objectors and not accept military assignments to Northern Ireland. The

Commission found the case came, not under Article 9, but under Article 10

concerning freedom of expression. Here, though, it found the State’s

position to be legitimate in defending its national security interests and

maintaining order within its military force.

Elsewhere the Commission has determined that under Article 9 a State

must allow an individual to leave a church and, likewise, a State cannot

force an individual to make financial contributions, usually through taxes,

to a state church (Appl. No 9781/82) and (Appl No. 9781/82).

Conscientious Objectors

As for the issue of conscientious objectors, the Commission did not find a

violation of Article 9 when Switzerland imposed a criminal sentence on a

man who refused military service (Appl. No. 10640/83) and in a similar

case when the Federal Republic of Germany declined to allow an

exemption from alternative civilian service (Appl. No. 7705/76).

Beddard comments: “Conscientious objection from military or substitute

service has been the subject matter of several applications. Mr. Grandrath,

who was a Jehovah’s Witness, complained that although he was a

conscientious objector he was required by the Federal German authorities

to do substitute service which was contrary to his religious beliefs. The

question arose, first of all, whether the Convention’s terms included the

right of conscientious objection. Article 4 of the Convention, in one of

the exceptions to the rule forbidding forced or compulsory labor, says that

service exacted instead of military service is acceptable for conscientious

objectors ‘in countries where they are recognized.’ There would seem to

be, therefore, no automatic right to conscientious objection. Article 14 of

the Convention says there shall be no discrimination of enjoyment of the

Convention’s rights on, inter alia, religious grounds, and Grandrath

complained that ministers of religion in some churches in Germany were

excused substitute service whereas he, as a Jehovah’s Witness, was not

allowed such exemption. The Commission was of the view, however, that

the restriction in Germany was imposed to avoid widespread avoidance of

military service, was based on function, and that, since Mr. Grandrath’s

ministry was only in his spare time, there was no case of discrimination. In

an Application in 1983, however, the complaint was that Jehovah’s

Witnesses were allowed exemption from military and substitute service in
184

Sweden, whereas the applicant, a pacifist, was not. The Commission’s

view here was that membership of such a religious sect as the Jehovah’s

Witness was an objective fact which created a high degree of probability

that exemption was not granted to persons who simply wished to escape

service.” 68

In summary, freedom of religion under Article 9 (1) includes freedom to

change one’s religion, and the freedom to teach and practice it. Freedom

of religion also includes the freedom not to participate in religious activities.

Hence compulsory religious services or teaching violates provision of the

Convention. Additionally, public manifestations of religion are subject to

regulation under Article 9 (2). These include holding public services,

processions and other manifestations. Public religious demonstrations

sometimes have a provocative intent, and Commission and Court practice

is to grant a wide margin of appreciation in the application of this Article. 69

Article 10: Freedom of Expression

There is a close relationship between the contents of Articles 9 and 10,

and parts of Articles 8 and 11. Also, Article 10 is grounded in Article 19

of the European Convention on Human Rights and Article 19 of the

International Covenant on Civil and Political Rights. The wording of

Article 10 is broader than in some other articles, including the “freedom to

hold opinions and to receive and impart information and ideas.”

The Commission in 1985 reviewed a complaint where the applicants,

broadcast professionals, argued a prohibition of television broadcasts of a

trial violated their Article 10 rights and the public’s right to know the

details of an important judicial proceeding (Appls. Nos. 11553/85 and

11658/85). Although the Commission found the complaint inadmissible,

it still referred to both Article 10 and Article 6:

“Freedom of expression constitutes one of the essential

foundations of a democratic society and one of the basic

conditions for its progress and for each individual’s selffulfillment. Of particular importance, in this context, is

the freedom of the press to impart information and ideas

and the right of the public to receive them.”

Next the Commission further described the importance of the right to a

fair trial in a democratic society, a right provided for by Article 6.1 of the

68 Application 2299/64, Grandrath v. Federal Republic of Germany, 16 CD 41 and Application

10410/83, N. v. Sweden, 40 D&R 203, in Beddard, 1993, p. 116.

69 Robertson and Merrills, 1993, p. 145.
Convention. It also underlined the importance attached to public

coverage of trials as an important way through which public confidence 

in a transparent judicial system is maintained. Notwithstanding, the

Commission, in supporting the trial judge’s prohibition against media

coverage of the trial, concluded:

“It is clear from the reasons given by the trial judge for

the Order that he considered it necessary to protect the

proper administration of justice and...[the] right to a fair

trial...[T]hese aims correspond to the purpose of

‘maintaining the authority and impartiality of the

judiciary’ as set out in Article 10.2 of the Convention. 70

An important early case before the Commission came from an applicant

who complained that a life-time prohibition on publishing, part of his

conviction for war time treachery, constituted a violation of freedom of

expression under Article 10 (DeBecker v. Belgium) (1962). The Belgium

government responded the restrictions were justifiable under Articles 2 to

7 of the Convention, both of which permit the imposition of penal

sanctions. The Commission disagreed, stating:

“Where the penal sanction in question involves a

deprivation or restriction of the right to freedom of

expression, it runs counter to the whole plan and

method of the Convention to seek its justification in

Articles 2, 5 and 4 dealing with the right to life, to

liberty and to scrutiny of the person and to freedom

from forced labor, rather than in Article 10, which

guarantees the right to freedom of expression.” 71

The right to freedom of expression means a person “shall include freedom

to hold opinions and to receive and impart information and ideas.”

(Handyside v. United Kingdom) (1976) was a case about an individual

publishing a reference book for school children; its content also contained

sexual advice. The Court said the State was acting within its rights in the

“protection of morals” to ban distribution of the book, but also laid out

standards for freedom of expression: “Freedom of expression constitutes

one of the essential foundations of such a society, one of the basic

conditions for its progress and for the development of every man...It is

applicable not only to ‘information’ or ‘ideas’ that are favorably received

or regarded as inoffensive or as a matter of indifference, but also to those

that offend, shock or disturb the State or any sector of the population.

185

70 Gomien, 1993, pp. 72-73. 71 Gomien, 1993, pp. 73-74.
186

Such are the demands of that pluralism, tolerance and broadmindedness

without which there is no democratic society.”

Freedom of the Press

The jurisprudence developed under this topic is extensive. The main case

to emerge to date is (Sunday Times v. United Kingdom) (1979). In this case,

the Court held that the public had a right to know the facts about the

story even if some of the issues were still before the local court in litigation.

The case established a high level of protection for a free press, the argument

being a democratic people are best served by the widest possible sources of

information. In this case the applicants had prepared an article about a

pharmaceutical company’s research and testing procedures before releasing

the drug thalidomide, a sedative, for sale. The drug was alleged to cause

severe birth defects in babies whose mothers had taken it during pregnancy.

(This information was gained apart from the newspapers). Some families

had concluded out-of-court settlements with the company, others were

still in negotiation, and still others had just begun legal action when the

pharmaceutical company received an advance copy of the newspaper story.

At that point the firm sought, and was granted, an injunction against its

publication. The injunction was sustained on appeal, the local courts

holding that publication of the article would constitute contempt of court

because legal proceedings on the issue were still working their way through

the courts. When the matter reached the Court, the latter ruled the

injunction interfered with the newspaper’s right to freedom of expression

contained in Article 10 (1). The Court reasoned that one purpose of the

law on contempt was to protect the power and independence of the courts.

This was a legitimate restriction allowed by Article 10 (2), the Court stated,

but another legal issue must be considered at the same time, was banning the

article “necessary in a democratic society?” Here the Court found the United

Kingdom government failed to prove the injunction against publication was

necessary because of a “pressing social need” nor was it “proportionate to the

legitimate aim pursued.” Gomien writes: “The Court highlighted several facts

as important to its judgment, for example, the breadth and the unqualified

restriction of the injunction, the moderate nature of the specific article being

enjoined, the length and dormant nature of the legal proceedings and the

settlement negotiations, and the extensive public debate engaged concerning

the subject matter of the article. The Court also addressed the Government’s

argument that it had properly balanced two public interests, in freedom of

expression and in the fair administration of justice, by stating:

“There is general recognition of the fact that the courts

can not operate in a vacuum. Whilst they are the forum

for the settlement of disputes, this does not mean that
187

there can be no prior discussion of disputes elsewhere,

be it in specialized journals, in the general press or

amongst the public at large. Furthermore, whilst the

mass media must not overstep the bounds imposed in

the interests of the proper administration of justice, it is

incumbent on them to impart information and ideas

concerning matters that come before the courts just as

in other areas of public interest. Not only do the media

have the task of imparting such information and ideas:

the public also has the right to receive them.”

The Court held that the families involved in the thalidomide tragedy:

“Had a vital interest in knowing all the underlying facts

and the various possible solutions. They could be deprived

of this information, which was crucially important for

them, only if it appeared absolutely certain that its

diffusion would have presented a threat to the ‘authority

of the judiciary.’ ” 72

Commenting on the Sunday Times case, Robertson and Merrills note the

Court: “placed great emphasis on press freedom and the concept of the

press as an essential component of a democratic society in its reasoning. 

It also relied on the principle that restrictions on the Convention’s rights

and freedoms are to be strictly construed. This clearly has the effect of

reinforcing the case for freedom of publication. For if freedom of

expression is the primary principle and the administration of justice a

limited exception, restriction requires a very strong justification. To the

minority judges, on the other hand, although freedom of expression was

important, the Court’s task was to balance competing and correlative

objectives. Finding that the disputed injunction was restricted in both its

subject matter and its duration, they concluded that as a justly

proportionate response, it met the requirements of the Convention.” 73

Another important freedom of the press case, this one involving

defamation of a highly-placed politician, was (Lingens v. Austria) (1986).

Here a magazine editor published two articles sharply critical of the

Chancellor of Austria, raising questions about his suitability to hold

office. The Chancellor replied with two defamation suits against the

editor, both of which were sustained in Austrian courts. When the editor

took the case to the Court at Strasbourg, claiming his freedom of

expression rights were violated under Article 10, the Court agreed:

72 Gomien, 1993, pp. 78-79. 73 Robertson and Merrills, 1993, p. 156. 
188

“freedom of the press...affords the public one of the best

means of discovering and forming an opinion of the

ideas and attitudes of political leaders. More generally,

freedom of political debate is at the very core of the

concept of a democratic society which prevails

throughout the Convention.

The limits of acceptable criticism are accordingly wider as regards a

politician as such than as regards a private individual. Unlike the latter,

the former inevitably and knowingly lays himself open to close scrutiny of

his every word and deed by both journalists and the public at large...

Article 10 (2) enables the reputation of others...to be protected, and this

protection extends to politicians too...but in such cases the requirements

of such protection have to be weighed in relation to the interests of open

discussion of political issues.”

Next the Court took issue with Austria’s defamation law for placing the

burden of proof on the accused to establish the veracity of their

statements. The Court stated:

“A careful distinction needs to be made between facts

and value-judgments. The existence of facts can be

demonstrated, whereas the truth of value-judgments is

not susceptible of proof...[under Austrian law].

Journalists in a case such as this cannot escape

conviction...unless they can prove the truth of their

statements...As regards value-judgments, this

requirement is impossible of fulfillment and it infringes

freedom of opinion itself, which is a fundamental part of

the right secured by Article 10 of the Convention.” 

Concerning the Austrian government’s application of sanctions against 

a journalist for criticizing a highly-placed political figure, the Court held

this:

“Amounted to a kind of censure, which would be 

likely to discourage him from making criticisms...in 

the future...In the context of political debate such a

sentence would be likely to deter journalists from

contributing to public discussion of issues affecting 

the life of the community. By the same token, a

sanction such as this is liable to hamper the press in

performing its task as purveyor of information and

public watchdog.”
Both the Sunday Times and Lingens cases demonstrate that the Commission

and Court frequently accord a high level of protection to media under

Article 10. Many Court opinions stress the importance the media play in a

democratic society, through promoting the public debate of issues, through

helping keep the political system transparent, and through making public

figures accountable for their actions. 74

The Lingens case also raises an important question, what are the

limitations raised in protecting the reputation or rights of others under

Article 10 (2)? “Reputation” raises the perennial question of balancing

the protection of a person’s good name with the public rights of freedom

of speech. Case law focuses on two issues, freedom of expression and the

extent of a margin of appreciation.

The Lingens case is about a Viennese journalist and magazine editor who

published two articles strongly criticizing Austrian Chancellor Bruno

Kreisky. Kreisky successfully sued the applicant for defamation, the writer

received both a prison sentence and a fine. However, the Court, in reviewing

the case under Article 10, cited the principles relating to freedom of

expression established in earlier cases, and thus rejected the government’s

position that the applicant could be found guilty under Article 10 (2).The

Court held that politicians can understandably be held to a higher level 

of public scrutiny than private citizens and that individuals who wish to

avoid criticism should stay out of politics. Additionally, the Court rejected

arguments that the main purpose of the press is to convey factual

information and that journalistic opinion does not enjoy the same high

level of legal protection. 75

Political Speech

The Commission and Court have taken a small number of cases involving

the political speech of politicians. In one such case, a member of the Spanish

Parliament wrote an article finding the government responsible for the

activities of Basque terrorists. As a result, the deputy’s parliamentary

immunity was lifted and he was convicted of defaming the State. The Court

held this was a violation of his human rights, stressing that governments can

be expected to experience wider criticism of their activities than individuals,

and the importance of free political speech in a state governed by rule of law.76

In (Goodwin v. the United Kingdom) (1996) the Court held a journalist’s

Article 10 right to freedom of expression was violated when he was fined

189

74 Gomien, 1993, pp. 79-81. 75 Robertson and Merrills, 1993, p. 153. 76 Castells judgment, April 23, 1992, Series A, No. 236, pp. 18-24, paras. 23-50.
for refusing to disclose the identity of sources of a controversial article.

Goodwin, a British journalist, was given confidential information about a

commercial company, TETRA Ltd. The company sued Goodwin, arguing

the information was taken from a confidential corporate strategy plan

missing from its files, which disclosed the company was having severe

financial difficulties. It asked that an order of prior restraint be entered

against The Engineer, which was scheduled to publish the article, and that

Goodwin be made to turn over his notes, which would reveal the source

of the information. The prohibition against printing the information

injunction was granted and Goodwin was fined £5,000 for contempt

when he declined to turn over his notes to local authorities. Weighing the

related issues in the case, the Court wrote:

“The order requiring the applicant to reveal his source

and the fine imposed upon him for having refused to do

so could not be regarded as having been ‘necessary in a

democratic society’ for the protection of TETRA’s rights

under English Law, notwithstanding the margin of

appreciation available to national authorities. Accordingly,

the impugned measures gave rise to a violation of the

applicant’s right to freedom of expression under Article 10.”

Earlier in the opinion the Court stated: “The interest of democratic

society in ensuring and maintaining a free press would weigh heavily in

the balance in determining whether the restriction was proportional to

the legitimate aim pursued.” 77

Article 11: Freedom of Assembly and Association, the Right to Form 

Trade Unions

Only a few cases have been heard to date by the Commission and Court

on freedom of peaceful assembly issues (Article 11). This is because an

“assembly” is a vaguer, more informal group than an “association” which

implies a more structured, purposeful organization. The Commission has

established parameters covering peaceful assembly and in doing so, has

established that the requirement for prior authorization for public

assemblies is not an infringement of Article 11. The Commission wrote:

“The right of peaceful assembly stated in this Article is a

fundamental right in a democratic society and...one of

the foundations of such a society...As such this right

covers both private meetings and meetings in public

190

77 ECH-96-1-006, in Bulletin on Constitutional Case Law, Council of Europe, Strasbourg, 196, 

pp. 135-136.
191

thoroughfares. Where the latter are concerned, their

subjection to an authorization procedure does not

normally encroach upon the essence of the right. Such a

procedure is in keeping with the requirements of Article

11 (1), if only in order that the authorities may be in a

position to ensure the peaceful nature of a meeting, and

accordingly does not as such constitute interference with

the exercise of the right.” (Appl. No.8191/78) 78

In another case, the Commission did not accept a government’s argument

that an organization’s application to demonstrate was outside the scope of

Article 11 because the proposed demonstration might attract a counterdemonstration from violent opponents. The Commission stated:

“The right to freedom of peaceful assembly is secured to everyone who has

the intention of organizing a peaceful demonstration...the possibility of

violent counter-demonstrations, or the possibility of extremists with

violent intentions, not members of the organizing association, joining the

demonstration cannot as such take away that right. Even if there is a real

risk of a public procession resulting in disorder by developments outside

the control of those organizing it, such procession does not for this reason

alone fall outside the scope of Article 11 (1) of the Convention, but any

restriction placed on such an assembly must be in conformity with the

terms of paragraph 2 of that provision.” (Appl. No. 8440/78)

The case (Plattform ‘Ärtze für das Leben’ v. Austria) (1988) concerns the

extent of a state’s obligations to protect groups engaged in peaceful

demonstrations. In this instance, permission had been granted by

Austrian authorities for an anti-abortion demonstration to meet in a

particular place. However, the group requested and was granted a change

in location to a site where crowd control was more difficult. Local police

told the organizers they were not sure they could fully protect the

demonstrators from counter-demonstrators, which is what happened.

When a second demonstration resulted in similar problems the applicants

charged their Article 11 rights had been violated by the Austrian

government for failing to provide adequate protection. The Court held

that Austria had an obligation to provide protection to groups exercising

the right of peaceful assembly:

“A demonstration may annoy or give offense to persons

opposed to the ideas or claims that it is seeking to promote.

The participants must, however, be able to hold the

78 Gomien, 1993, p. 88.
192

demonstration without having to fear that they will be

subjected to physical violence by their opponents; such

a fear would be liable to deter associations or other

groups supporting common ideas or interests from

openly expressing their opinions on highly controversial

issues affecting the community. In a democracy the right

to counter-demonstrate cannot extend to inhibiting the

exercise of the right to demonstrate. Genuine, effective

freedom of peaceful assembly cannot, therefore, be

reduced to a mere duty on the part of the State not to

interfere: a purely negative conception would not be

compatible with the object and purpose of Article 11.

Like Article 8, Article 11 sometimes requires positive

measures to be taken, even in the sphere of relations

between individuals, if need be.” 79

In summary, the Commission and Court realize there are practical

difficulties attached to public assemblies, especially when their subject

matter is controversial. States are thus allowed discretion on issues such as

issuing permits for demonstrations, providing police protection at

controversial demonstrations, and related issues. Robertson and Merrills

comment: “The right cannot, of course be guaranteed absolutely and, as

the Court explained, States have a wide discretion in the choice of means

of protecting it. Similarly, the scope of the obligation ought to depend on

whether both demonstrators and counter-demonstrators have peaceful

intentions. Respecting freedom of assembly while maintaining public

order presents difficult legal issues, as domestic experience demonstrates,

but recognizing that Article 11 can involve positive obligations is a useful

step towards an answer.” 80

The Right to Association

There are two aspects to freedom of association cases, issues originating

when people are prevented from joining associations of their choice, or

issues arising from their membership in organizations, especially trade

unions.

The Court, and the Commission before it, adopted the position that as

“association” differs from an “assembly.” This was established in the case

of (Young, James and Webster v. United Kingdom) (Comm. Rept. of 1979).

Here the Commission stated that: “The relationship between workers

employed by the same employer cannot be understood as an association in

79 Gomien, 1993, pp. 89-90. 80 Robertson and Merrills, 1993, p. 160.
193

the sense of Article 11 because it depends only on the contractual

relationship between employee and employer.” “Association” was seen as

a voluntary grouping committed to a common goal. In several cases

Commission and Court have cited two aspects of an organization as

necessary for it to be an association, the elements being its “voluntary

nature” and the purpose of its members to pursue a “common goal.” In

Young the applicants argued a contract reached between British Rail and

several unions violated freedom of association provisions of Article 11.

The Court, in agreeing with the applicants, held they could not be

required to join a trade union in order to retain their jobs. The Court said: 

“The right to form and to join trade unions is a 

special aspect of freedom of association...the notion of 

a freedom implies some measure of freedom of choice 

as to its exercise.

Gomien notes: “It does not follow that the negative aspect of a person’s

freedom of association falls completely outside the ambit of Article 11 and

that each and every kind of compulsion to join a particular trade union is

compatible with the intention of that provision. To construe Article 11 as

permitting every kind of compulsion in the field of trade union membership

would strike at the very substance of the freedom it is designed to

guarantee.” 81

The Rights of Trade Unions

There are cases of applicants having been prevented from joining trade

unions, or of facing adverse action because they were union members. In

some instances, the Court found the persons were punished, not for union

membership, but for subversive activity. The language of Article 11 (1) is

about an individual’s right “to form and to join trade unions for the

protection of his interests,” which suggests not only the principle of free

association, but also positive obligations by the government to listen to or

respond to workers’ representations.

As for the important question of the right to strike, a key Court case is

(Schmidt and Dahlström v. Sweden) (1981) , Series A, No. 21. Here the

applicants, members of a striking union, were denied benefits, although

they had not participated in the strike. They claimed the denial

constituted a breach of Article 11. The Court’s response was the right to

strike was not unlimited, and that the applicants still had open to them

the right of collective bargaining to negotiate for the benefits. 

81 Gomien, 1993, pp. 90-91.
194

Here the Court had two intentions; first, it recognized that Article 11

contained a clear statement allowing trade union activity to exist.

Second, the Court would not allow a code of labor or industrial relations

to be read into the Convention. Thus the Court elected to hold a narrow

interpretation to the statute and, as such, refrained from becoming

potentially embroiled in an endless series of industrial disputes which, it

reasoned, could best be solved by courts in the Contracting States. 82

Gomien notes: “The Commission and Court have adopted a literal

interpretation of Article 11’s protection of the right to form and to join

trade unions. Under the case law, the article’s requirements are satisfied if

trade unions may be formed and their memberships recognized. To date,

neither the Commission nor the Court has accepted arguments relating to

the effectiveness of a given trade union’s activities in protecting its

members’ interests. For example, the Court has held that Article 11 does

not require States to guarantee a certain level or type of treatment of trade

unions, but can choose its own means of dealing with these associations.

In the case of the National Union of Belgian Police (1975), the applicant

union complained that the Belgian Government’s consultation with

several large public employees’ unions, to the exclusion of the Belgian

Police Union, constituted a violation of Article 11....Finally, the Court has

even held that Article 11 does not protect the right to strike, allowing the

State to choose other means by which to safeguard a union’s protection of

the occupational interests of its members. In the case of (Schmidt and

Dahlström v. Sweden) (1976), the Court noted that:

“The Convention safeguards freedom to protect the

occupational interests of trade union members by trade

union action, the conduct and development of which

the Contracting States must both permit and make

possible.

Article 11 (1) nevertheless leaves each State a free choice of the means to

be used towards this end. The grant of a right to strike represents without

any doubt one of the most important of these means, but there are others.

Such a right, which is not expressly enshrined in Article 11, may be

subject under national law to regulation of a kind that limits its exercise

in certain instances.” 83

In Appl No. 10550/83 the Commission explained its rationale in

protecting private activities from State intervention:

82 Robertson and Merrills, 1993, p. 162. 83 Gomien, 1993, pp. 93-94.
195

“The right to form and join trade unions is a special

aspect of freedom of association which protects, first and

foremost, against State action. The State may not interfere

with the forming and joining of trade unions.... The

question that arises in the present case, however, concerns

the extent to which this provision obliges the State to

protect the trade union member against measures taken

against him by his union. The right to form trade unions

involves, for example, the right of trade unions to draw

up their own rules, to administer their own affairs and to

establish and join trade union federations...accordingly

trade union decisions in these domains must not be subject

to restrictions and control by the State. As a corollary,

such decisions must be regarded as private activity for

which, in principle, the State cannot be responsible

under the Convention. The protection afforded by the

provision is primarily against interference by the State.”

A closely related question is: If a person is free to join an association, are

they also free not to join an association, or not be compelled to join a

particular association? This was the question in (LeCompte, Van Leuven

and DeMeyere v. Belgium) (1981), a case about disciplinary procedures

affecting medical doctors in Belgium. The Ordre des médecins, a

professional body, was charged with regulating discipline of the medical

profession. The applicants argued that, as practicing physicians, they were

unjustly obliged by law to join the Ordre. Notwithstanding, the Court

ruled this was not a violation of Article 11. The Court reasoned that the

Ordre exercised a legitimate public regulatory function, control of the

standards of the medical profession. Additionally, the doctors were free to

join other professional medical associations, several of which existed. If

there had not been a choice of alternative associations for medical

professionals to join, the Court held, Article 11 would have been violated,

but since choices were possible, the Article was not violated. 

The Court concluded: “Totalitarian regimes have resorted-and resort-to

the compulsory regimentation of the professions by means of closed and

exclusive organizations taking the place of the professional associations

and the traditional trade unions. The authors of the Convention intended

to prevent such abuses.” In short, the Court concluded it is permissible for

a State to create professional regulatory bodies and to require compulsory

membership as long as alternative professional associations are available

as well. 84

84 Robertson and Merrills, 1993, p. 162.
196

Protocol No. 1, Article 1: The Right to Peaceful Enjoyment of Possessions

When the Convention was being drafted, no common accord could be

reached among the drafters on exactly which rights should be included in

the basic document. Consequently some of these rights were later added

in protocols, including the rights to peaceful enjoyment of ones’

possessions, education, and free elections through secret ballot. The right

to property, the only economic right listed in the Convention, is assured

in this Article. However, the right is not absolute. Deprivation of property

cannot be an arbitrary action, it may only come “in the public interest

and subject to the conditions provided for by law and by the general

principles of international law.”

As might be expected, the word “arbitrarily” became a focal point for legal

interpretation in property confiscation cases. No one contests the right of

States to seize property, and when this Protocol was being drafted, the

Labor Party in Great Britain was at the height of its nationalization of

property program. What has developed in the voluminous case law on this

subject is that three distinct rules emerge from this provision. First, the

peaceful enjoyment of possessions is assured without a definition of

possessions being provided. Second, the conditions under which a

person’s possessions may be validly taken are enumerated, resulting in an

extensive jurisprudence. Third, is a statement that the use of property can

be regulated in the state’s interest. From this emerges a distinction

between deprivation of property and control of the use of property. 85

In interpreting the phrase “peaceful enjoyment” the Court makes a

distinction between depravation of property and control of its use. The

leading case is (Sporrong and Lönnroth v. Sweden) (1982) where the

applicants contested a Stockholm City Ordinance authorizing the city to

expropriate any property. Citing Article 1 of Protocol 1, the Court found

in favor of the applicants, stating that the application of Swedish law

violated their right to the peaceful use of their possessions. The Court’s

opinion restated its view that, under the Convention, a balance must be

struck between the rights of the individual and the interests of

communities. Especially on the issue of deprivation of property, or limits

on its use, the Court stated, there must be fairness in decision-making and

a right of appeal for individuals against arbitrary decisions by governments

to seize property, control its use, or determine levels of compensation.

Gomien writes: “The Court elaborated its views on the balance between

private individuals and the public interest in the cases of (Lithgow and

85 Robertson and Merrills, 1993, pp. 212-213.
197

Others v. United Kingdom) (1987) and (James and Others v. United Kingdom)

(1986). In the latter case, the applicants contested the operation of a

British statute that permitted certain long-term tenants of given residential

properties the right to purchase the landlord’s interest in the property, in

some instances at less than the market value at the time of the transaction.

In finding no violation of the right to property, the Court stated:

“The notion of ‘public interest’ is necessarily extensive...

The Court, finding it natural that the margin of

appreciation available to the legislature in implementing

social and economic policies should be a wide one, will

respect the legislature’s judgment as to what is ‘in the

public interest’ unless that judgment be manifestly

without reasonable foundation. A taking of property

effected in pursuance of legitimate social, economic or

other policies may be ‘in the public interest,’ even if the

community at large has no direct use or enjoyment of

the property taken.” 86

The concept of property has been extended beyond private property to

include assets such as shares and contractual monetary claims. Some

Greek applicants filed suit against their government for losses they had

experienced, including the payment of security bonds, during the life of

the contract they had held with the Greek military government of the

early 1970s. With the return of civilian government, the contract was

terminated and both sides agreed to arbitration to resolve the claim.

However, the national legislature in the meantime passed a law voiding

the arbitration clause in the original contract and annulling the arbitration

award. The Court found a clear violation of Protocol 1, Article 1:

“According to the case law of international courts and

of arbitration tribunals any state has a sovereign power

to amend or even terminate a contract concluded with

private individuals, provided it pays compensation....

This both reflects recognition that the superior interests

of the State take precedence over contractual obligations

and takes account of the need to preserve a fair balance

in a contractual relationship. However, the unilateral

termination of a contract does not take effect in relation

to certain essential clauses of the contract, such as the

arbitration clause. To alter the machinery set up by

enacting an authoritative amendment to such a clause

86 Gomien, 1993, pp. 99-100.
198

would make it possible for one of the parties to evade

jurisdiction in a dispute in respect of which specific

provision was made for arbitration.” 87

Gomien, Harris, and Zwaak comment: “It is significant that the text of

this Article does not explicitly guarantee any claim to compensation as a

result of interference with property rights. Contrary to most other

provisions of the Convention, this Article expressly protects not only

natural, but also legal persons, such as companies. This aspect of the

Article is very significant because the economic system of the member

states is based on private ownership of property and the freedom to form

economic units as ‘legal persons.’ The Court has, however, also given a

broader meaning to the notion of ‘person’ under the Convention, also

allowing churches, as nongovernmental organizations but not commercial

entities, to sustain claims under Article 1 of Protocol No. 1.” 88

Subsequent articles deal with education and free elections. The right to

free elections is detailed in Article 3, although in language less extensive

than in Article 25 of the International Covenant on Civil and Political

Rights, which casts the right in individual rather than institutional terms:

“The High Contracting Parties undertake to hold free

elections at reasonable intervals by secret ballot, under

conditions which will ensure the free expression of the

opinion of the people in the choice of the legislature.”

In the Mathieu-Mohin and Clerfayt case, Series A, No. 113, 1987, the

Court took the position that both states and individuals could invoke

provisions of this Article. Robertson and Merrills write: “What of the

content of the right? One of the first issues to be considered in the case

law concerned the right to vote. Here the interpretation of the Protocol

has changed quite significantly. In its early jurisprudence the Commission

ruled that Article 3 did not guarantee an individual’s right to vote, but was

concerned only with the institutional right to have free elections.

Subsequently, it reversed this position and decided that Article 3 in

principle requires universal suffrage and, as a consequence, confers

subjective rights of participation in the form of a right to vote and a right

to stand for election.” 89

Parenthetically, the Court has taken a broad view of the term “the

legislature,” not limiting it to one of the three branches of government,

87 Stran Greek refineries and Straits Andreadis judgment of December 9, 1994, Series A, No. 301-B,

p. 97, paras 72 and 74. 

88 Gomien, Harris, and Zwaak, 1996, p. 311. 89 Robertson and Merrills, 1993, p. 226.
199

but including every organ of governmental power that has authority over

citizens. Other election-related questions include, what membership

conditions are required to constitute a political party? To what extent may

political parties receive financial subsidies? Who may be candidates?

What sort of speech is allowed in election campaigning? Who may have

access to the media? Writing in Mathieu-Mohin and Clerfayt, the Court

held: “Electoral systems seek to fulfill objectives which are sometimes

scarcely compatible with each other: on the one hand, to reflect fairly

faithfully the opinions of the people, and, on the other, to channel

currents of thought so as to promote the emergence of a sufficiently clear

and coherent political will.” For the Court, the reference in Article 3 to

the free expression of opinion implies the existence of freedom of

expression, already protected by Article 10, and “the principle of equality

of treatment of all citizens in the exercise of their right to vote and their

right to stand for election.” 90

Articles 14 through 18

No additional rights are secured in Articles 14 through 18 of the

Convention. Instead, these articles deal with the scope and exercise of

rights previously enumerated. Article 12 contains a non-discrimination

clause, Article 15 deals with the complex question of rights and emergency

powers, Article 17 protects from an abuse of freedoms elsewhere

enumerated in the Convention. Article 14 should not be seen as a stand

alone anti-discrimination guarantee, but an Article enjoining against

discrimination of rights established elsewhere in the Convention and its

Protocols. Its application comes in response to provisions of other

Convention articles. The protection the Convention affords is for

individuals, not groups. This means that only a person or persons who

believe their rights to be violated can bring a case to Strasbourg. While

group applications are accepted, each person within the group must make

a case that they are victims. There are no provisions for class action suits.

While human rights advocacy groups are active in assisting group

claimants with their applications, the groups as such cannot petition the

Court, only individuals can. 

Gomien writes: “The protection of Article 14 is accessory to the other

substantive rights enumerated in the Convention. The article has no

independent life of its own. That being said, the Commission and Court

have stated that, even if a State has complied with its obligations to

respect one of the substantive rights at issue in a given case, it may

nevertheless be found to have violated that same right in conjunction

90 Robertson and Merrills, 1993, p. 227.
200

with Article 14. A relevant case is (Belgian Linguistics Case) (1968) where

French-speaking parents contested their children’s lack of access to

French language schools in the Brussels periphery due exclusively to the

residence of the parents, while the Flemish-speaking community was not

so limited. In deciding the case, the Court applied criteria applied in

earlier cases. The Court reviewed issues arising under articles containing

built-in restriction clauses. Here the issue was the legitimacy of the aim to

be achieved by a given practice and the proportionality between the

means employed to achieve it.” 91

Article 15: Emergency Powers

This Article permits the possibility of derogation, limiting rights “In time

of war or other public emergency threatening the life of the nation.”

However, there are clear restrictions on the applicability of this Article;

no derogations may be made from Article 2 (right to life), except regarding

deaths resulting from lawful acts of war; Article 3 (freedom from torture or

degrading or inhuman treatment), Article 4 (1) (freedom from slavery or

servitude), and Article 7 (retroactive application of criminal law). In the

Greek case the Commission established four elements to what constitutes

a situation of war or public emergency:

1. The public emergency must be actual or imminent.

2. Its effects must involve the whole nation.

3. The continuance of the organized life of the community must be

threatened.

4. The crisis or danger must be exceptional, in that the normal measures

or restrictions permitted by the Convention for the maintenance of

public safety, health and order are plainly inadequate. 92

Article 25: The Right to Individual Petition

The importance of this article can not be overstated, for it allows individuals

to petition the Commission against the violation of their human rights.

Gomein states: “The right of individual petition, which represents one of

the most effective means of protecting human rights, is the essential element

of the supervisory system established by the European Convention. Article 25

allows the Commission to receive petitions from ‘any person, nongovernmental

organization or group of individuals claiming to be the victim of a

violation by one of the High Contracting Parties of the rights set forth in

this Convention.’ All High Contracting Parties to the Convention have

declared that they accept the right of individual petition established

91 Gomien, 1993, p. 113. 92 Quoted in Robertson and Merrills, 1993, p. 184.
201

under Article 25. Most States have exercised their option to recognize the

right of individual petition for specific periods of time only, although

these States regularly renew their declarations to that effect.” 93

Article 46: The Compulsory Jurisdiction of the Court

Article 46.1 of the Convention states that a High Contracting Party may

“Declare that it recognizes as compulsory ipso facto and without special

agreement the jurisdiction of the Court in all matters concerning the

interpretation and application of the present Convention.” This means

that the compulsory jurisdiction of the Court is recognized by all signatory

States, regardless of what cases are brought before the Court. Additionally,

the Court’s jurisdiction extends beyond the specific articles in the

Convention to the “additional articles” added in several protocols, including

the rights to property, education and free elections emanating from the

First Protocol and the abolition of the death penalty in the Sixth Protocol.

Parenthetically, Article 46 does not extend to Fourth Protocol rights, i.e.

prohibition of imprisonment for debt, prohibition of the expulsion of

nationals, prohibition of the collective expulsion of aliens, and the

Seventh Protocol, i.e. right of appeal against immigration decisions and

criminal convictions, prohibition of double jeopardy, equality of spouses. 

THE RELATIONSHIP BETWEEN THE 

EUROPEAN CONVENTION ON HUMAN RIGHTS

AND THE EUROPEAN SOCIAL CHARTER

When the European Convention on Human Rights was written in the

late 1940s, its authors, reflecting the political realities of that era, did not

include economic, social and cultural rights in the Convention. Coming

in the wake of World War II’s devastation, the drafters’ main priority was to

establish standards for human rights and the norms applicable to political

democracy. The additional presence of the Iron Curtain made any tooelaborate statement of rights illusory. Thus it was decided, following the

formula adopted by the United Nations, that two separate treaties would

be appropriate, one political, the other economic-social. Parenthetically,

there is no individual role in the development or enforcement of the

Charter at an international level, unlike in the system established by the

European Convention on Human Rights. The collective complaints

protocol, on the other hand, allows organizations to play an active role in

implementing the Charter. Their active intervention in concrete

situations will allow cases of individual rights to reach a wider forum.

93 Gomien, 1993, p. 128.
Although the Convention is well-established as the principle human rights

instrument on the European continent, the Charter has never caught hold

to the same extent. There are reasons for this, mainly the lack of political

will on the part of member states to take on a panoply of economic and social

questions as legal issues. Additionally, the Charter was never publicized the

way the Convention was, and the possibilities of individuals utilizing it as

a legal document to better their situation was not realized. Finally, the

parallel development of European Communities’ law, now European Union

Law, addresses some of the issues presented by the Charter. Now, however,

with a new turn in East-West relations, there is great interest in “revitalizing”

the Charter. An Amending Protocol has been adopted, creating a more

realistic system of Charter supervision, and a proposed Revised European

Social Charter is presently before the Committee of Ministers. Articles 1

to 19 of the original Charter and Articles 1 to 4 of the Additional Protocol

would be combined and updated, and the statement of rights clarified.

Some of the new rights contained in the revised charter include:

— protection in cases of termination of employment,

— protection of workers; claims in case of employer insolvency,

— the right to dignity at work,

— equal opportunities and equal treatment for workers with family

responsibilities,

— the right to information and consultation when layoffs are being

considered,

— protection against poverty and social exclusion,

— the right to housing,

— three weeks annual paid holidays,

— fourteen weeks maternity leave,

— a prohibition against discrimination in the enjoyment of Charter

rights on grounds of race, sex, language, religion, association with a

national minority, national or social origin, and other grounds.

A State party signing the Revised Charter would be required to accept six

out of nine basic or “hard core” articles, the present seven plus Article 7 of

the 1961 Charter protecting young persons and Article 1 of the Additional

Protocol, which provides equal employment opportunities without sexual

discrimination.

A Reporting System

The revised Charter calls for an elaborate reporting system on compliance

of articles agreed to by a contracting country. The heart of the compliance

program is a series of national reports from Contracting Parties to the

Charter at two-year intervals on “such provisions of Part II of the Charter

202
as they have accepted.” The reports are available to the public on request.

A novel feature of the reporting system is contained in Article 23, sending

copies of reports to “such of its national organizations as are members of

the international organizations of employers and trade unions.” The

comments of management and labor groups may be used by the Committee

of Independent Experts as well.

Once the nine-member Committee of Independent Experts receives the

national reports, it prepares a set of Conclusions on each. The Committee

is authorized to meet privately with representatives of the Contracting

Party to obtain additional information and clarification on a country’s law

and practice. While it is not proper for the Committee to pressure the

Contracting Parties into accepting additional provisions, the Committee

has the distinct possibility of making pointed suggestions about ways to

bring the country’s laws and practices more into conformity with

international standards. The Committee reports next go to a Governmental

Social Committee of the Council of Europe composed of a representative

of each Contracting Party, which focuses on Committee Conclusions,

especially negative ones. The Committee of Experts conclusions should

also be forwarded to the Parliamentary Assembly.

As noted elsewhere, the right of individual petition is not available under

the Charter, as it is under the Convention, although collective complaints

are allowed under an Additional Optional Protocol, which was adopted in

1995 and which will enter into force when five parties ratify it. Complaints

may be filed by three sorts of organizations, international organizations 

of employers and trade unions, other international nongovernmental

organizations with consultative status, and representative national employer

and trade union organizations. The collective complaints are heard by the

Committee of Independent experts, who compile their findings for the

Committee of Ministers, which is supposed to adopt a resolution by twothirds vote. These recommendations are not legally binding, but the

Contracting Party is required to “provide information on the measures it

has taken to give effect to the Committee of Ministers recommendation”

in its next report. Although the process is labyrinthine its intent is

obvious, to bring international attention to a problem and through

publicity and persuasion, seeking its resolution, hopefully by changes in

national attitudes as well as laws. The revised Charter’s authors realized

that sometimes persuasion can create a climate for social and economic

change otherwise impossible to achieve by a mandate delivered from

beyond the country’s borders with little likelihood of its enforcement.

Sometimes the revised Charter is criticized as being vague and general in

its language, not detailing the content of rights with enough specificity.

203
However, the drafters realized it would be difficult to set precise standards

for all present and future members since divergent socioeconomic and

political settings are represented. Also, the flexible formula allows a

margin for discussion and improvement in the international dialogues

that take place before countries file their periodic national reports. 

Protocol No. 11, Combining Commission and Court

Almost anyone who has studied the operations of the Commission and

the Court will conclude that, while their work is admirable, it is also slow

and could profit from streamlining and reform. Reform discussions have

taken place since the 1980s, driven by the sharp increase in case loads of

the two bodies. For example, the number of cases registered with the

Commission have increased from 404 in 1981 to 2,037 in 1993. The

Commission in January 1994 had 2,672 pending cases, more than 1,487 of

which it had not looked at. And as more countries join the Council of

Europe, the number of cases can be expected to increase as well. By the

year 2000, there may be 35-40 countries participating in the Convention.

As for the Court, until 1988 it rarely heard more than 25 cases a year; but

by 1993 the number rose to 52. It takes an average of five years for a case

to be heard by the Court. Given the sharp increase in volume of cases and

length of time to hear them, it is no wonder that reform efforts were called

for, principally for a new single Court to replace the two existing bodies.

Protocol 11, the reform Protocol, is an amending Protocol; all State Parties

must express their consent to be bound by it in order for the protocol to

enter into force. The protocol entered into force on January 11, 1998.

As envisioned in Protocol 11, the Court will be a permanent body having

jurisdiction in all matters concerning the interpretation and application

of the Convention, including inter-state cases and individual

applications. As at present, the Court may give advisory opinions upon

request to the Committee of Ministers.

The number of judges on the Court will equal the number of State Parties

to the Convention. Judges will be elected to six year terms and can be reelected. They will be elected by the Parliamentary Assembly upon

nomination of their separate State Parties. Judges will have secretarial

support, including law clerks.

When hearing cases the Court will sit in panels of three judges, Chambers

of seven judges, or in a Grand Chamber of seventeen judges. The Court

204
205

will receive applications from any person, nongovernmental organization

or group of individuals claiming to be the victim of a violation of the

Convention by one of the State Parties, or a State Party in the case of an

inter-state application.

As at present, a registry will communicate with applicants in the

preparation of filings and, once an application is registered, a judge

rapporteur will be designated to prepare the case, communicate with the

interested parties and, after the case has been declared admissible, take

steps toward a friendly settlement if possible.

In cases with serious implications, a Chamber may relinquish its

jurisdiction to the Grand Chamber any time before a judgment is reached,

unless one of the parties objects. Once judgment has been rendered by a

Chamber, a party may request a rehearing by the Grand Chamber “if the

case raises serious questions concerning the interpretation or application

of the Convention or its protocols, or if the case raises an issue of general

importance.” A panel of five judges of the Grand Chamber will decide on

whether a case is to be accepted for re-examination. 

The Court will determine the question of just satisfaction, including costs

and expenses. 

The Grand Chamber’s judgment will be final; final judgments of the

Court will be binding; the Committee of Ministers will supervise their

execution. 

OUTLINE OF THE PROCEDURE

The basic procedure most cases will follow is:

— lodging of application;

— preliminary contacts with Court’s registry;

— registration of application;

— assignment of application to a Chamber;

— appointment of judge rapporteur by the Chamber;

— examination by a three-member committee;

— communication of the application to the Government;

— filing of observations and establishment of facts;

— oral hearings;

— admissibility decision by Chamber;

— possibility of friendly settlement negotiations;

— judgment by the Chamber.
INDEX OF CASES AND 

COMMISSION APPLICATIONS CITED

Table of Cases filed before the European Court on Human Rights 

Abdulaziz, Cabales and Balkandali v. United Kingdom 1985 . . . . . . . . . .172, 180

Airey v. Ireland 1979 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .164, 179

Aksoy v. Turkey 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .161

Arrowsmith v. United Kingdom, Committee Report of 1978 . . . . . . . . . . . . . .183

Artico v. Italy 1980 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .171

Barberá, Messegué and Jabardo v. Spain 1988 . . . . . . . . . . . . . . . . . . . . . . .165, 169

Belgian Linguistics Case 1967 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .200

Berrehab v. The Netherlands 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .181

Bock v. Federal Republic of Germany 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .166

Bönisch v. Austria 1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .166

Brogan v. United Kingdom 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .160

Brüuggemann and Scheuten v. Federal Republic of Germany 

(Application 6959/75) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .154

Chahal v. United Kingdom 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .157

Cyprus v. Turkey 1974, 1975 (Applications 6780/74 and 6950/75) . . . . . . . . . .153

Darby v. Sweden, Committee Report of May 5, 1989 . . . . . . . . . . . . . . . . . . . . .182

DeBecker v. Belgium 1962 (Applicatioin 214/56) . . . . . . . . . . . . . . . . . . . . . . . .185

DeCubber v. Belgium 1984 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .167

DeJong, Baljet and van den Brink v. The Netherlands 1983 . . . . . . . . . . . . . . .162

DeWilde, Ooms and Versyp v. Belgium 1971 (“Vagrancy” cases) . . . . . . . . . . .159

Deewer v. Belgium 1980 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .167

Denmark, France, Norway, Sweden and the Netherlands v. Greece 1969 

(Applications 3321-26 and 3344/67) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .156

Doorson v. The Netherlands 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .165

Droogenbroeck v. Belgium 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .158

Dudgeon v. United Kingdom 1981 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .176, 178

Eckle v. Federal Republic of Germany 1982 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .166

Feldbrugge v. The Netherlands 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .166

Foti and Others v. Italy 1982 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .166

Gaskin v. United Kingdom 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .180

Goodwin v. United Kingdom 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .189–190

Grandrath v. Federal Republic of Germany 1964 (Application 2299/64) . . . . .183

Guincho v. Portugal 1984 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .166

Guzzardi v. Italy 1980 (Application 7367/76) . . . . . . . . . . . . . . . . . . . . . . . . . . .159

Handyside v. United Kingdom 1976 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .178, 185

H. v. France 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .168

Huvig v. France 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .180, 182

Ireland v. United Kingdom 1978 . . . . . . . . . . . . . . . . . . . . . . . . .153, 156–157, 160

James and Others v. United Kingdom 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .197

Klass and Others v. Federal Republic of Germany 1978 

Application 5029/71) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .173, 179

Kostovski v. The Netherlands 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .171–173

Kruslin v. France 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .180, 182

Lamy v. Belgium 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .162

Lawless v. Ireland 1961 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .160

206
LeCompte, Van Leuven and DeMeyere v. Belgium 1981 . . . . . . . . . . . . . . . . . .195

Leander v. Sweden 1987 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .173

Lingens v. Austria 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .187, 189

Lithgow and Others v. United Kingdom 1987 . . . . . . . . . . . . . . . . . . . . . . . . . . .196

Malone v. United Kingdom 1984 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .177, 180, 182

Marckx v. Belgium 1979 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .177, 181–182

Mathieu-Mohin and Clerfayt v. Belgium 1987 . . . . . . . . . . . . . . . . . . . . . .198–199

Matznetter v. Austria 1969 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .161

Minelli v. Switzerland 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .168

John Murray v. United Kingdom 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .168

N. v. Sweden 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .184

National Union of Belgian Police Case 1975 . . . . . . . . . . . . . . . . . . . . . . . . . . . .192

Neumeister v. Austria 1968 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .161, 166

Neves e Silva v. Portugal 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .168

Norris v. Ireland 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .176, 178

Piersak v. Belgium 1982 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .167

Plattform ‘Ärtze für das Leben’ v. Austria 1988 . . . . . . . . . . . . . . . . . . . . . . . . . .191

Pretto and Others v. Italy 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .167

Ringeisen v. Austria 1971 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .160, 164

Schiesser v. Switzerland 1979 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .161

Schmidt and Dahlstrom v. Sweden 1976 . . . . . . . . . . . . . . . . . . . . . . . . . . .193–194

Silver and Others v. United Kingdom 1983 . . . . . . . . . . . . . . . . . . . .173, 178–179

Sporrong and Lonnroth v. Sweden 1982 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .196

Skoogström v. Sweden 1984 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .161

Stan Greek Refineries and Stan Andreadis judgment of December 9 1994, 

Series A no. 301-B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .198

Strögmüller v. Austria 1969 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .161

Sunday Times v. United Kingdom 1979 

(Application 6538/74) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .177, 186–187, 189

Unterpertinger v. Austria 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .172–173

Windisch v. Austria 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .172

Young, James and Webster v. United Kingdom 1981 . . . . . . . . . . . . . . . . .192–193

Cases filed before the European Commission of Human Rights

Arranged by Application Number

Applicatioin 214/56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .185

Application 2299/64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .184

Applications 3321-26 and 3344/67 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .156

Application 5029/71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .173, 179

Application 6538/74 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .177, 186–187, 189

Applications 6780/74 and 6950/75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .153

Application 6959/75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .154

Application 7367/76 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .159

Application 7705/76 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .183

Application 8416/78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .154

Application 9781/82 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .183

Application 10410/83 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .184

Application 10550/83 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .194

Application 10640/83 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .183

Application 11553/85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .184

207
208

Original participation in or later admission to the CSCE, 

and signature by participating States of the Helsinki Final Act 

and of the Charter of Paris for a New Europe

State Original participation Signature of the Signature of the 

in the CSCE notified Helsinki Final Act Charter of Paris 

by June 25, 1973, or (Original: (Original: 

later admission August 1, 1975) November 21, 1990)

Albania June 19, 1991 September 16, 1991 September 17, 1991

Germany (a) Original Original Original

United States of America Original Original Original

Armenia January 30, 1992 July 8, 1992 April 17, 1992

Austria Original Original Original

Azerbaijan January 30, 1992 July 8, 1992 December 20, 1993

Belarus January 30, 1992 February 26, 1992 April 8, 1992

Belgium Original Original Original

Bosnia-Herzegovina (b) April 30, 1992 July 8, 1992

Bulgaria Original Original Original

Canada Original Original Original

Cyprus Original Original Original

Croatia March 24, 1992 July 8, 1992

Denmark Original Original Original

Spain Original Original Original

Estonia (c) September 10, 1991 October 14, 1991 December 6, 1991

Finland Original Original Original

France Original Original Original

Georgia March 24, 1992 July 8, 1992 January 21, 1994

United Kingdom Original Original Original

Greece Original Original Original

Hungary Original Original Original

Ireland Original Original Original

Iceland Original Original Original

Italy Original Original Original

Kazakhstan January 30, 1992 July 8, 1992 September 23, 1992

Kyrgyzstan January 30, 1992 July 8, 1992 June 3, 1994

Latvia (c) September 10, 1991 October 14, 1991 December 6, 1991

Liechtenstein Original Original Original

Lithuania (c) September 10, 1991 October 14, 1991 December 6, 1991

Luxembourg Original Original Original

Malta Original Original Original

Moldova January 30, 1992 February 26, 1992 January 29, 1993

Monaco (d) Original Original Original

Norway Original Original Original

Uzbekistan January 30, 1992 February 26, 1992 October 27, 1993

Netherlands Original Original Original

Poland Original Original Original

Portugal Original Original Original

Romania Original Original Original

Russian Federation (e) Original Original Original

San Marino Original Original Original

Holy See Original Original Original

Slovak Republic (f) January 1, 1993

Slovenia March 24, 1992 July 8, 1992 March 8, 1993

Sweden Original Original Original

Switzerland Original Original Original

Tajikistan January 30, 1992 February 26, 1992

Czech Republic (f) January 1, 1993

Turkmenistan January 30, 1992 July 8, 1992

Turkey Original Original Original

Ukraine January 30, 1992 February 26, 1992 June 16, 1992

Yugoslavia (g) Original Original Original

The FYR of Macedonia Observer since April 28, 1993
(a) The Federal Republic of Germany and the German Democratic Republic,

reunified on October 3, 1990, were both original participants in the CSCE

and original signatories of the Helsinki Final Act.

(b) Bosnia-Herzegovina was admitted as a participating State of the CSCE in

accordance with a statement by the Chairman at the 10th CSO Meeting on

April 30, 1992. The 13th CSO Meeting on July 2, 1992 agreed that the

welcoming of Bosnia-Herzegovina at the Helsinki Summit by the president of

the host country would be recognized as the formal confirmation, provided for

in the said statement by the Chairman, of the admission of BosniaHerzegovina.

(c) Estonia, Latvia and Lithuania were admitted as participating States at an

additional meeting at ministerial level prior to the opening of the Moscow

Meeting of the Conference on the Human Dimension of the CSCE.

(d) Monaco has participated in the CSCE since July 3, 1973, but did not

participate in the prior Helsinki Consultations.

(e) Participation of the Union of Soviet Socialist Republics in the CSCE

process continued by the Russian Federation (cf. 5-CSO/Journal No. 1 and

CSCE Communication No. 10 dated January 7, 1992).

(f) Successor States of the former Czech and Slovak Federal Republic which,

under a different name, was an original participant in the CSCE. The

Stockholm Council Meeting on December 15, 1992 agreed that the Czech

Republic and the Slovak Republic would be welcomed as participating States

from January 1, 1993, i.e. following their proclamation of independence.

(g) Suspended from participation since July 8, 1992.

Source: OSCE Handbook, 20 Years of the Helsinki Final Act, 1975-1995, 

Published by the Secretariat of the OSCE, Vienna, Austria, 1996, Annex I.

209
A Table of Signatories to International Human Rights Conventions 

[See footnote references at end of table]

AB CDE F GHI J K L M

Albania PPPPPPPPPPP PP

Armenia P PPPP PP

Austria P P P PPPPPPP PP

Azerbaijan P P P P P

Belarus PPPP PPPPPP PP

Belgium P P P P P P P P P P P P P

Bulgaria 2 PPPPPPPPPP PP

Canada P P P PPPPPP PP

Croatia PPPPPPPPPPP PP

Cyprus P P P P P P P P P P P P P

Czech Rep. 2 PPPPPPPPPP PP

Denmark P P P S P P P P P P P P P

Estonia 2 P P PPPP PP

Finland PPPPPPPPPPP PP

France PPPPPPPPPPP PP

Georgia P P P P P P P

Germany P P P PPPPPPP PP

Greece P P P PPPP PP PP

Hungary PPPPPPPPPPP PP

Iceland P P P P P P P P P S P

Ireland P P P PPPSPPP SP

Italy PPPPPPPPPPP PP

Kazakhstan P P

Kyrgyzstan P P P P

Latvia 2 P P P S P P P P P P P P

Lithuania P P P P P P P

Luxembourg PPPPPPPPPP PP

Macedonia 2 P P S P PPPP PP

Malta P P P P P P P P

Moldova P S P P P P P P

Netherlands P P P PPPPPPP PP

Norway P P P P P P P P P P P P P

Poland 2 PPPPPPPPPP PP

Romania PPPPPPPPPPP PP

Russia PPPPPPPPPPP PP

Slovak Rep. 2 PPPPPPPPP PP

Slovenia PPPPPPPPPP PP

Spain PPPPPPPPPPP SP

Sweden P P P PPPPPPP PP

Switzerland P P P PPPPPPS PS

Tajikistan P P P P P

Turkey P P P PPPS P PP

Ukraine P P P P P P P P P P P P P

U. K. P P P P P P P P P P P P

U.S.A. P P P PPPPSS PP

Uzbekistan P P P P P

210
P=Party

S=Signatory

1. Based on general declaration concerning treaty obligations prior to

independence.

2. Party to 1926 Convention only.

International Human Rights Conventions 

A. Convention to Suppress the Slave Trade and Slavery of September 25,

1926, as amended by the Protocol of December 7, 1953.

B. Convention on the Prevention and Punishment of the Crime of

Genocide of December 9, 1948.

C. Geneva Convention Relative to the Protection of Civilian Persons in

Time of War of August 12, 1949.

D. Convention for the Suppression of the Traffic in Persons and of the

Exploitation of the Prostitution of Others of March 21, 1950.

E. European Convention for the Protection of Human Rights and

Fundamental Freedoms of November 4, 1950.

F. Convention on the Political Rights of Women of March 31, 1953.

G. Supplementary Convention on the Abolition of Slavery, the Slave Trade,

and Institutions and Practices Similar to Slavery of September 7, 1956.

H. International Convention on the Elimination of All Forms of Racial

Discrimination of December 21, 1965.

I. International Covenant on Civil and Political Rights of December 16,

1966.

J. International Covenant on Economic, Social and Cultural Rights of

December 16, 1966.

K. Convention on the Elimination of All Forms of Discrimination

Against Women of December 18, 1979.

L. Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment of December 10, 1984.

M. Convention on the Rights of the Child of November 20, 1989.

Source: Department of State February 1997 Country Reports on Human Rights for

1996., Government Printing Office, Washington, D.C., pp. 1501-15 04.

211
ADDITIONAL CHART OF

SIGNATURES AND RATIFICATIONS

(selected countries as of July 30, 1997)

Convention for the Protection of Human Rights and Fundamental

Freedoms

Opening for Signature: Rome, November 11, 1950 Entry into Force:

September 3, 1953, with ten ratifications

Member states signatory: Albania, Austria, Belgium, Bulgaria, Croatia*, Cyprus, Czech

Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland,

Ireland, Italy, Latvia, Lithuania, Moldova*, Netherlands, Norway, Poland, Romania,

Russian Federation*, Slovakia, Slovenia, Spain, Sweden, Switzerland, the former Yugoslav

Republic of Macedonia, Turkey, Ukraine*, United Kingdom.

(*) Signed but not ratified.

European Convention for the Prevention of Torture and Inhuman or

Degrading Treatment or Punishment

Opening for Signature: Strasbourg, November 26, 1987 Entry into Force:

February 2, 1989

Member states signatory: Albania, Austria, Belgium, Bulgaria, Croatia*, Cyprus, Czech

Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland,

Ireland, Italy, Latvia**, Lithuania*, Moldova*, Netherlands, Norway, Poland, Romania,

Russian Federation*, Slovakia, Slovenia, Spain, Sweden, Switzerland, the former Yugoslav

Republic of Macedonia, Turkey, Ukraine, United Kingdom.

(*) Signed but not ratified. (**) Not yet signed.

Protocol No 9 to the Convention for the protection of Human Rights

and Fundamental Freedoms

Opening for Signature: Rome, November 6, 1990 Entry into Force:

October 1, 1994, with ten ratifications

Member states signatory: Albania**, Austria, Belgium, Bulgaria**, Croatia**, Cyprus,

Czech Republic, Denmark, Estonia, Finland, France*, Germany, Greece*, Hungary,

Iceland**, Ireland, Italy, Latvia**, Lithuania, Moldova, Netherlands, Norway, Poland,

Romania, Russian Federation**, Slovakia, Slovenia, Spain**, Sweden, Switzerland, the

former Yugoslav Republic of Macedonia**, Turkey*, Ukraine, United Kingdom**.

(*) Signed but not ratified. (**) Not yet signed.

212
Protocol No. 11 to the Convention for the Protection of Human

Rights and Fundamental Freedoms, Restructuring the Control

Machinery Established Thereby

Opening for Signature: Strasbourg, May 5, 1994 Entry into Force:

Member states signatory: Albania, Austria, Belgium, Bulgaria, Croatia*, Cyprus, Czech

Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland,

Ireland, Italy*, Latvia, Lithuania, Moldova, Netherlands, Norway, Poland, Romania,

Russian Federation*, Slovakia, Slovenia, Spain, Sweden, Switzerland, the former Yugoslav

Republic of Macedonia, Turkey, Ukraine, United Kingdom.

(*) Signed but not ratified.

European Social Charter

Opening for Signature: Turin, October 18, 1961 Entry into Force:

February 26, 1965, with five ratifications

Member states signatory: Albania**, Austria, Belgium, Bulgaria**, Croatia**, Cyprus,

Czech Republic*, Denmark, Estonia**, Finland, France, Germany, Greece, Hungary*,

Iceland, Ireland, Italy, Latvia*, Lithuania**, Moldova**, Netherlands, Norway, Poland,

Romania*, Russian Federation**, Slovakia*, Slovenia**, Spain, Sweden, Switzerland*,

the former Yugoslav Republic of Macedonia**, Turkey, Ukraine*, United Kingdom.

(*) Signed but not ratified. (**) Not yet signed.

Additional Protocol to the European Social Charter

Opening for Signature: Strasbourg, May 5, 1988 Entry into Force:

September 4, 1992, with three ratifications

Member states signatory: Albania**, Austria*, Belgium*, Bulgaria**, Croatia**, Cyprus*,

Czech Republic*, Denmark, Estonia**, Finland, France*, Germany*, Greece*,

Hungary**, Iceland*, Ireland**, Italy, Latvia*, Lithuania**, Moldova**, Netherlands,

Norway, Poland**, Romania**, Russian Federation**, Slovakia**, Slovenia*, Spain*,

Sweden, Switzerland**, the former Yugoslav Republic of Macedonia**, Turkey*,

Ukraine**, United Kingdom**.

(*) Signed but not ratified. (**) Not yet signed.

Protocol Amending the European Social Charter

Opening for Signature: Turin, October 10, 1991 Entry into Force: 

Member states signatory: Albania**, Austria, Belgium*, Bulgaria**, Croatia**, Cyprus,

Czech Republic*, Denmark**, Estonia**, Finland, France*, Germany**, Greece*,

Hungary*, Iceland**, Ireland**, Italy, Latvia*, Lithuania**, Moldova**, Netherlands,

Norway, Poland**, Romania**, Russian Federation**, Slovakia*, Slovenia*, Spain*,

Sweden, Switzerland**, the former Yugoslav Republic of Macedonia**, Turkey**,

Ukraine**, United Kingdom*.

(*) Signed but not ratified. (**) Not yet signed.

213
Additional Protocol to the European Social Charter Providing for a

System of Collective Complaints

Opening for Signature: Strasbourg, November 9, 1995 Entry into Force:

with five ratifications

Member states signatory: Belgium, Cyprus, Denmark, Finland, France, Italy, Norway*,

Sweden.

(*) Ratified this Protocol.

European Social Charter (Revised)

Opening for Signature: Strasbourg, May 5, 1996 Entry into Force: with

three ratifications. (No ratifications as of July 1, 1997). 

Member states signatory: Belgium, Cyprus, Denmark, Finland, France, Greece, Italy,

Romania, Sweden.

Framework Convention for the Protection of National Minorities

Opening for Signature: Strasbourg, February 1, 1995 Entry into Force:

with twelve ratifications

Member states signatory: Albania*, Austria*, Belgium**, Bulgaria**, Croatia*, Cyprus,

Czech Republic*, Denmark*, Estonia, Finland*, France**, Germany*, Greece**,

Hungary, Iceland*, Ireland*, Italy*, Latvia*, Lithuania*, Moldova, Netherlands*,

Norway*, Poland*, Romania, Russian Federation*, Slovakia*, Slovenia*, Spain,

Sweden*, Switzerland*, the former Yugoslav Republic of Macedonia, Turkey**, Ukraine*,

United Kingdom*.

(*) Signed but not ratified. (**) Not yet signed.

214
PREPARING AND FILING A COMPLAINT

In preparing and filing a human rights complaint, both for domestic and

international use, it is important to carefully set forth the facts in the case.

Find out what forms are required in the country where you are making a

complaint. Basic questions include: where did the violation occur? What

human rights and other relevant treaties has that country signed? Which

international organizations has that country joined? What rights have

been violated? Cite the applicable international instrument if possible. 

Are you reporting an individual violation, or a pattern of violations? The

more specific your complaint is, the easier it is to be addressed. Can this

be treated both as an individual complaint and an example of a pattern of

repetitive violations? 

Are you the victim, a representative of the victim, or a non-governmental

organization filing a complaint on behalf of a victim or victims? What

steps have been taken domestically to redress the complaint? The

European Convention of Human Rights, for example, requires domestic

administrative or judicial procedures to have been exhausted before it will

consider a complaint.

What remedy is being sought? This should be clearly stated in the

communication. It could include restoration of a job, monetary

compensation for a loss, return of seized land or goods, access to travel,

granting of a passport, visa, or exit permit, education, permission to visit a

detainee, release from detention, action by an international body, such as

an investigation, or a request that a country cease from violating

international human rights norms, or change its legislation.

What local resources are available? Such as a lawyer, human rights

organization, governmental office on human rights, ombudsperson? 

Confidentiality: Do you want any portion of your document to remain

confidential, such as your name, or that of the victim or witnesses, or any

part of their testimony? Given the wide circulation of human rights

complaints, possibilities of keeping sensitive information confidential are

not great.

Gaining Support for Your Case

What groups can you call on for support? Can any journalists, trade unions,

religious groups, associations, friendly governments, or international

associations help resolve the case? In addition to the formal mechanism

used to consider complaints, wider public interest is often helpful in their

215
resolution. This can come from contacting officials in the executive

branch, legislators, especially from a petitioner’s home district, law schools

and bar associations, the media and nongovernmental organizations.

Are you agreeable to media publicity in this case? Often media and

diplomatic attention to complaints is effective in their resolution.

Written Communications

Make sure you know the form of communication required both within the

country where there is a complaint and the forms used by international

organizations. Actual forms used by the United Nations Human Rights

Committee and the European Commission on Human Rights can be

obtained from those organizations (addresses on pages 218 and 220).

Be sure to state the factual details fully; name of the country where the

alleged violation took place, the name and nationality of the petitioner,

date and place of birth, present address, and address to which

correspondence should be sent. 

If the writer of the communication is different from the victim, the same

information should be included about the latter. If the petitioner and the

victim are relatives or kinspersons, that should be stated. If the petitioner

is an organization, a brief description of the organization, including details

of its incorporation, should be stated.

The human rights violations should be described to the extent possible,

with reference to the country’s constitution, charter of rights, criminal or

civil codes or procedural codes and other relevant laws.

The statement of facts should be specific. It should include a detailed

chronological narrative of alleged violations, including dates, times, places,

participants, and witnesses, including their names and addresses, when

known. The use of a lawyer may be helpful in preparing such a document.

Include the names, ranks, and descriptions of government officials

involved, direct quotes of their statements if remembered, otherwise a

paraphrase of what they said. Relevant documents should be attached. Be

sure to keep originals or copies. These include affidavits of victims and

witnesses, citations of relevant laws and regulations, medical reports,

newspaper accounts, and findings of other investigations.

Photographs or simple maps may be helpful in making the case clear to

someone not familiar with it.

216
If numerous violations are being reported, they should be reported as

separate violations, including the information above for each case. 

Avoid making polemical, ideological statements. Your audience will be

interested in the facts and their relationship to the relevant laws, treaties,

and international human rights norms.

Local Action

Local redress: be sure to chronicle all efforts used to obtain domestic redress

of the complaint. These should include formal and informal reports to

police and other government officials, any court filings, including dates

and texts of decisions, requests for information of government agencies,

where and when, and with whom? Was a court or administrative appeals

process used? If so, cite dates, places, participants and results.

Explain if domestic remedies have been exhausted, or only partially used.

It may be that no remedies are possible in local law, or authorities are not

cooperative, or cause long delays and expenses in filing. The lack of an

independent judiciary or independent administrative agencies to hear and

resolve complaints should be recorded. Fear of reprisals or the failure of

similar cases in the past to obtain a hearing should be noted.

Following are guidelines to use in filing human rights complaints with the

United Nations and the European Commission on Human Rights. The

Organization for Security and Cooperation in Europe has no mechanism

for receiving individual complaints.

United Nations

Three United Nations organizations review individual human rights

complaints, the Human Rights Committee, the Committee Against

Torture, and the Committee on the Elimination of Racial Discrimination.

Before individual petitions can be filed with UN organizations, a state

must have specifically declared it will recognize the jurisdiction of the UN

body to accept individual applications. The procedure is cumbersome,

often taking three to four years from start to finish. It can not be called

“user friendly” and should be considered only as a measure of last resort

when all local approaches have been exhausted.

217
The Optional Protocol to the International Covenant on Civil and

Political Rights 

If a country has ratified this Optional Protocol, the Committee may

accept individual petitions from persons in that country. It is important to

ascertain whether or not the country has signed the Protocol with

reservations, and to what extent the reservations apply to the right(s)

which the victim wishes to pursue. The victim or victim’s representative

may file directly with the 18-person Committee, which meets periodically

in Geneva. Complaints filed under the Optional Protocol must

substantiate a violation of rights contained in Parts I and III of the

Covenant, such as the right not to be tortured, subjected to cruel,

inhuman, or degrading treatment or punishment. Other rights include the

right to life, liberty, security, a fair trial, freedom of expression, including

thought, religion, peaceful assembly and association. Also: equal

protection and equality before the law.

Filing Procedure 

A potential petitioner should first contact the Committee to obtain a set

of its filing procedures. Communications should be addressed to:

Human Rights Committee

UN Centre for Human Rights

Palais des Nations

1211 Geneva 10

Switzerland

Tel: (22) 907 1234

Fax: (22) 917 0092, 917 0212

The basic information required is the victim’s name, address and

nationality, and the same information if the writer of the complaint is

different than the victim. Which state is the complaint being filed

against, and what domestic steps have been taken to satisfy the claim?

Have all domestic possibilities been exhausted?

When a communication has been received by the Committee, it is first

reviewed by the Secretariat which may require additional information.

Then the application is sent to the Committee’s Special Rapporteur on

New Applications, a committee member charged with responding to

communications received between sessions. If the rapporteur is satisfied

with the petition, it may be sent to the state concerned for comment,

218
usually with a two month deadline for response. In turn, the petition’s

author is given an opportunity to respond to the state’s comment, after

which the petition goes to a five-person Committee working group. If

they unanimously accept the petition, it is admitted; if their vote is not

unanimous, the case goes to the entire committee for consideration. If the

case is admitted, a country has six months to submit a written explanation

about the case and any steps taken toward its resolution. Such

explanations are supplied to the author as well, who is then allowed to

furnish additional comments, usually within six weeks. Neither on-site

investigations nor oral hearings are provided for in the Committee’s

procedures, nor are funds available to help petitioners with their cases.

Decisions

While the Committee seeks to work by consensus, a majority decision of

members present is sufficient. Having no juridical power, the Committee

communicates its “views” to member states and the person filing the

complaint. These statements often contain information about the states

and whether or not they are in violation of Covenant obligations and

what steps should be taken immediately to make them in compliance with

the Covenant, such as commutation of a sentence, release of a victim,

changing an unjust law, or providing a victim with appropriate compensation.

Since the Committee’s views lack legal force, states often ignore them. In

recent years, the Committee’s approach has been to send a letter to the

state involved, informing the state of its position, and seeking the state’s

response. Some states have responded positively to this approach. An even

more direct approach has been used since 1990. The Committee now asks

the affected states to inform the Committee of any actions taken in response

to a case within 180 days. A Special Rapporteur for the Follow-Up of Views

monitors cases and recommends follow-up action in unresolved cases.

Two additional conventions include The International Convention on the

Elimination of All Forms of Racial Discrimination and The Convention

Against Torture and Other Forms of Cruel, Inhuman or Degrading

Treatment. Each of these conventions have mandates and procedures

similar to those of the Human Rights Committee, and both are just

beginning to receive individual complaints. Additional information may

be obtained by writing the United Nations Centre for Human Rights at

the address on page 218.

European Convention on Human Rights

Article 25 of the European Convention on Human Rights allows for

individual petitions to the Commission once domestic remedies have

219
been exhausted and provided the petition is filed within six months after

the final domestic decision by the state. More than 1,000

communications have been filed annually under the Convention, only

about ten percent of which are admissible. Most are rejected because the

complaints are clearly about domestic, not international legal problems.

Even if accepted, a case may take three to four years to resolve. Potential

petitioners should communicate directly with the Commission for

procedures on filing a complaint. They should write directly to:

Secretary-General of the Council of Europe

c/o European Commission on Human Rights

67006 Strasbourg Cedex

France 

Tel: 33 388 41 23 50

Fax: 33 388 41 27 93

The Commission. Article 20 provides for a number of Commission

members equal to the number of High Contracting Parties to the

Convention. Terms are for six years and may be renewed. Members sit on

the Commission in their individual capacity, which helps assure their

independence and impartiality. Although Commission opinions are not

legally binding, the Commission can refer cases to the Court, whose

opinions are legally binding. 

The Secretariat. The Secretariat assists the Commission by answering

correspondence, keeping archives, and maintaining a register of

applications and their disposition. The Secretariat prepares a file on each

case and assures that it contains all the necessary information. It also

informs applicants if the six-month time period has expired and if the

violation in question is one covered by the Convention. 

Commission Procedures. Article 26 of the European Convention states the

Commission “may only deal with the matter after all domestic remedies

have been exhausted, according to the generally recognized rules of

international law, and within a period of six months from the date on

which the final decision was taken.” Applicants should also state whether

they have filed complaints with other international organizations.

Exhaustion of domestic remedies means that all judicial and administrative

steps have been taken. Often the Commission has found that available

remedies are ineffective because they are framed in such a way that the

applicant has little possibility of success in pleading before local authorities.

220
Petitioners must be victims, or a close relative or someone acting on their

behalf. The petition must be signed by the applicant (Article 27), who can

also request that their name not be published. No anonymous petitions

can be accepted. Applicants should also designate any other person filing

on their behalf with a power of attorney; failure to do so may result in the

application’s registration being delayed. Petitions must specifically cite

the Convention right allegedly violated—general political statements will

lead to the petition’s rejection as being outside the Commission’s

jurisdiction.

The Commission has the right under Article 27 (2) to reject a petition if 

it has a clearly political motive, or contains unfounded or unsupported

accusations. The complaint must be filed against a state and its agents,

such as police officers or government employees, for an action they took

or failed to take. Individual complaints against private citizens or

associations do not have standing under the Convention.

The Commission (address on page 220) will provide an application form

with details for filing under the Commission’s procedural Rule 44.

Applications should contain the applicant’s name, age, occupation, and

address; the same information should be listed if another person is filing

on behalf of the applicant.

The name of the state party against whom the filing is being made should

be listed, followed by a specific citation of the parts of the Convention

alleged to have been violated. This should include a detailed statement of

facts, including relevant documents, such as judicial or administrative

decisions and letters. Should there be a request for monetary damages, this

should be noted, although no specific sum need be indicated in the filing.

The burden of proof is on the individual who must make the most

comprehensive and convincing claim possible for their case. 

Financial Assistance to Petitioner. After an application has been referred to

the respondent government, the Commission may provide financial

support to applicants to cover legal fees, travel, subsistence, and out-ofpocket expenses. These modest sums cover preparation of written

documents and costs of appearing at oral hearings. The applicant can

request financial aid, or the Commission may grant it on its own

initiative, but such legal aid can only be granted to applicants when

domestic authorities certify their inability to pay for the expenses of

pursuing a case before the Commission. It is prudent to inquire of the

Commission the rules for granting financial assistance in each case. 

221
Admission. The Secretariat screens each application and corresponds

directly with each. Registered petitions are then sent to individual

Commission members who review them for admissibility. Once all needed

information is gathered, a report is prepared for the full Commission. If

the petition is to be accepted, the Commission will ask the relevant

government for its comments on admissibility of the case, usually to be

furnished within six weeks. It is at this stage that some cases are resolved.

If this does not happen, this process narrows the number of issues between

both sides, sharpening questions of fact, admissibility, and merits of the

various arguments. Then a new report on admissibility is prepared for the

Commission and oral hearings are scheduled if the application is

accepted.

Oral Hearings on Admissibility. Usually the oral hearings on admissibility

take half a day and are held in Strasbourg. Participants are asked questions

on the case the Commission has asked parties to address. Participants and

their representatives both respond to the Commission and to the other

parties’ submissions, and answer questions from the Commission, after

which the Commission deliberates privately and informs both parties of

its decision to admit or deny the petition. Assuming the case is accepted,

the Commission then conducts its own investigation of the case and seeks

to reach a negotiated settlement satisfactory to all parties (Article 28). If

that is impossible, it may refer the case to the European Court of Human

Rights.

Possibly fifteen percent of cases accepted by the Commission are resolved

by friendly means. Settlements typically include demands for monetary

compensation or a change in national legislation. Should no settlement

be reached, the Commission prepares a report for the Committee of

Ministers, which decides whether a breach of the Convention has taken

place and whether or not to publicize the Commission’s report. After

three months the Commission, the respondent state, or the state whose

nationality the applicant has, may refer the case directly to the European

Court of Human Rights, whose decision is legally binding on all parties. 

The Compulsory Jurisdiction of the Court. Article 46.1 of the Convention

states a High Contracting Party may declare that it recognizes as

compulsory ipso facto and without special agreement the jurisdiction of

the Court in all matters concerning the interpretation and application of

the present Convention.

The number of judges on the Court equals the number of member states

of the Council of Europe. Judges serve in their individual capacities. So far

the court has heard over 300 cases; probably the case load will increase

222
when the Court begins hearing cases referred to it by individuals. This

will happen when Protocol No. 9 to the Convention becomes effective.

The Protocol was opened for signature in November 1990 and will

become effective after ten member countries sign it. 

With permission of the Court, third parties may file briefs supporting a

petitioner in the case. This has allowed a number of non-governmental

organizations with human rights, free speech, and equal protection

interests to comment on the content of state law and practice in other

countries.

Court judgments are legally binding and often contain monetary awards

or mandates for the state to render “just satisfaction” to a party whose

rights were violated.

223
224

A RESOURCE GUIDE

UN Human Rights Activities

The United Nations has several Human Rights programs. Its UN

Technical Cooperation Program in the Field of Human Rights allows

participating states to request technical assistance in the training of judges,

police officers, lawyers, or members of the armed forces. In some countries

it establishes a long-term field presence in troubled regions. For example,

the UN recently opened an office in Abkhazia, Georgia to protect human

rights of the local population, deal with internally displaced persons, help

refugees return, and report on human rights to the United Nations.

Institutionally, the UN has six committees monitoring its major Human

Rights treaties. This is done through reviewing reports from member

states filed under those treaties and, when necessary, engaging states in

constructive dialogue about treaty fulfillment. Three UN groups accept

individual human rights complaints against governments; the Human

Rights Committee, Committee against Torture, and the Committee on

Racial Discrimination. Outside the treaty mechanism, special rapporteurs

may be appointed to review country specific or general thematic problems.

A UN publication notes: “Anyone may bring a human rights problem to

the attention of the United Nations and thousands of people around the

world do so each year. Treaty-based complaints procedures are operational

under the Optional Protocol to the International Covenant on Civil and

Political Rights, Article 22 of the Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment and Article 14 of

the International Convention on the Elimination of All Forms of Racial

Discrimination. These procedures can be applied in relation to States Parties

which have ratified (in the case of the Optional Protocol) or have made a

declaration under the appropriate article (in the case of the Conventions).” 94

The Centre for Human Rights, Geneva, under supervision of the High

Commissioner for Human Rights, is the main UN agency dealing with

human rights issues on a day-to-day basis. It contains a Research and

Right to Development Branch, a Support Services Branch, and an

Activities and Programs Branch, the latter carrying out field operations in

places like the former Yugoslavia.

Of particular note are several recent UN publications in support of training

programs conducted in individual countries. They include works for judges,

94 United Nations High Commissioner for Human Rights, Introduction to the United Nations

Human Rights Program, press release, http://193.135.15/html/ABO-INTR.HTM, Geneva, 

April 28, 1997.
social workers, prison officials, police, prosecutors and other legal offices

and cover the content of the main UN accords and how they are applied

in the daily life of law enforcement and administration of justice officials.

Details for contacting the various United Nations offices are contained

elsewhere in this publication.

OSCE’s Human Rights Activities

OSCE’s Office of Democratic Institutions and Human Rights (ODIHR)

has an active rule of law program to strengthen the independence of the

judiciary in emerging democracies, analyzing draft legal codes for their

conformity to international human rights norms, and conducting seminars

for judges and other administration of justice officials on professional topics,

including human rights accords, free media, and related issues. Since 1991

OSCE has been active in organizing and monitoring elections in countries

including Albania, parts of the former Yugoslavia, Belarus, Bulgaria, the

Russian Federation, Romania, Latvia, Lithuania, Kazakhstan, Ukraine,

Armenia and Georgia, among others. Human Dimension seminars and

meetings are organized periodically in Warsaw and elsewhere on topics

like Free Media, Migrant Workers, Local Democracy, and the Situation of

Roma Populations. ODIHR has an active program for contact with

NGOs, maintaining contact with NGO networks and inviting NGOs to

participate in Human Dimension seminars, implementation meetings and

review conferences, and assisting NGOs with election monitoring.

The Council of Europe’s Human Rights Activity

The Council of Europe has numerous well-established assistance programs

with countries of central and eastern Europe, such as the Demosthenes,

Themis, and Demo-droit programs. The oldest of these programs is the

Demosthenes program, modified since its origins in 1990 by the

Demosthenes-Bis program for states of the former Soviet Union and

others with “guest” status. Judges, lawyers, journalists, youth leaders, civil

servants, leaders of civic associations and NGOs, national and local

leaders in the various fields relevant to Council of Europe activities all are

potential participants in this program. 

The Council’s Themis program is uniquely aimed at legal cooperation,

including training judges, prosecutors, lawyers, notaries, prison administrators

and judicial administrators in human rights and rule of law skills. Program

themes include: the role of the judge in a democratic society, the

transformation of the procuratura into a body compatible with democratic

governance, management of ministries of justice, the police in transitional

225
societies, new concepts in prison system administration, the notary as a

guarantor of legal security in a democratic state, drafting laws in a state

governed by the rule of law, lawyers and bar associations in a modern state.

The Demo-droit program, an offshoot of the Demosthenes program, focuses

on the judicial system, emphasizes the independence of the judiciary, access

to justice, and reform of criminal codes and codes of criminal procedure, and

is aimed at bringing national legislation in the countries of central and eastern

Europe more closely into line with the legal instruments of the Council of

Europe. Open to countries whether or not they are members of the Council

of Europe, the program includes seminars, training workshops, study visits in

western European countries, and analysis of draft legislation, such as constitutions,

civil and criminal procedure codes, and laws on the status of the judiciary. 

The Venice Commission

The European Commission for Democracy through Law, also known as the Venice

Commission, was established in 1990 pursuant to a Partial Agreement of the

Council of Europe. It is a consultative body which cooperates with member States of

the Council of Europe and with non-member States. It is composed of independent

experts in the fields of law and political science whose main tasks are the following:

• to help new Central and Eastern European democracies to set up new

political and legal infrastructures;

• to reinforce existing democratic structures;

• to promote and strengthen the principles and institutions which are the

essence of a true democracy.

The activities of the Venice Commission comprise, inter alia, research,

seminars and legal opinions on issues such as constitutional reform,

electoral laws and the protection of minorities, as well as the collection

and dissemination of case-law in matters of constitutional law from

Constitutional Courts and other equivalent courts.

The Venice Commission has set up a Centre on Constitutional Justice

whose purpose is to further the knowledge of constitutional law and

democratic values in Europe by gathering and disseminating all information

relevant to European constitutional development.

The Secretariat of the Venice Commission and the Centre on

Constitutional Justice are based at the Council of Europe.

Council of Europe/Conseil de l’Europe

F-67075 Strasbourg Cedex

Tel: +33 (0)3 88 41 20 67

Fax: +33 (0)3 88 41 37 38 

E-mail: Venice @ coe. fr

226
INTRODUCING HUMAN RIGHTS; 

A WEEKS’ SEMINAR CONTENTS

Sometimes the question is asked, “How do you organize a training seminar

on human rights subjects?” The following model is adapted from seminars

held by the OSCE, Council of Europe, and UN. Although designed as a

seven-day event, the format can be adapted for shorter seminars as well.

Day One: Morning: 

Introductions

What are Human Rights? (An International Overview)

How are Human Rights Interpreted in this Country’s Constitution?

Afternoon:

United Nation Human Rights Accords, an Overview

Day Two: Morning:

Overview of OSCE Accords

First Case Study: a free speech issue, small group discussion, followed by

general discussion

Afternoon:

Survey of the European Convention, Part I

Day Three: Morning:

Survey of the European Convention, Part II

Second Case Study: a due process issue, small group discussion,

followed by general discussion

Afternoon:

How the Commission and Court Work

Day Four: Morning:

Litigating a Human Rights Case Locally (a judge, prosecutor, attorney,

non-governmental organization representative)

Case study: members of a local minority group claim systematic

deprivation of rights: what should they do? Small group discussion,

followed by general discussion

Afternoon:

The Media and Human Rights (local media representatives, plus

Ministry of Justice and other officials)

Day Five: Morning:

The Role of an Independent Judiciary in Assuring Human Rights

(judges from district, Supreme, Constitutional and other courts)

Case study: a mock trial on a right to free expression, peaceful assembly

issue

Afternoon:

The Legislature’s Role in Protecting Human Rights

Day Six: Morning:

The Executive Branch and Executive Agencies as Protectors of Human

Rights

Teaching about Human Rights in Schools and Universities

Afternoon:

National and International NGO and the Protection of Human Rights

Day Seven: Morning:

Workshops on specific issues, use of media in human rights cases, 

work of NGOs, discussion on preparation of a human rights claim,

Open Microphone

Closing Luncheon. (In case of time constraints, some of the sessions

can be shortened or eliminated, especially for the last two days.)

227
The Bulletin on Constitutional

Case Law

The Bulletin on Constitutional Case Law

reports three times a year, in English

and French on the most significant

decisions of constitutional courts and

courts of equivalent jurisdiction in

Greater Europe and other continents,

as well as those of the European Court

of Human Rights and the Court of

Justice of the European Communities.

The Bulletin aims at quickly informing

the reader of the key points of a decision.

The decision is first identified according

to specific reference information.

Following a brief presentation of the

legal issues raised the summary presents

the facts of the case and the reasoning

of the decision. Moreover, a systematic

thesaurus especially developed by the

Venice Commission and liaison

officers of participating courts allows

easy access to information sought in

relation to specific subjects.

The Bulletin thus offers a broad, periodic

overview and update on constitutional

developments.

Its aim is to allow all persons interested

in the evolution of constitutional law

— lawyers, members of the judiciary,

civil servants, researchers and students

— to find information quickly. The

Bulletin is thus a highly practical tool.

The Venice Commission is also

publishing a series of special editions:

the Special Bulletin. The first series

presents the legal context of

constitutional jurisdictions (descriptions

and basic texts); the second will be

devoted to the leading judgments in

the constitutional case-law of Greater

Europe and other countries.

228

Bulletin on Constitutional Case Law

Secretariat of the Venice

Commission

Council of Europe

F-67075 Strasbourg Cedex

France

Tel: 33 3 88 41 20 67

Fax: 33 3 88 41 37 38

E-mail: venice@coe.fr

CSCE Digest

The Commission on Security and

Cooperation in Europe

234 Ford House Office Building

Washington, D.C. 20515

U.S.A.

Tel: 202 225 1901

E-mail: csce@hr.house.gov.

Homepage: http://www.house.gov/csce/

Eastern European Constitutional

Review

published in Russian as 

Konstitutsionnoe Pravo:

Vostochoevropieskoe Obozrenie 

Olga Sidorovich, Editor

Moscow Public Science Foundation

Prospekt Mira 36

Rooms 200-201

Moscow, 101000, Russia

Fax: 7095 280 3515

E-mail: olga@glas.apc.org

Center for the Study of

Constitutionalism in Eastern Europe

The University of Chicago Law

School

1111 East 60th Street

Chicago, IL. 60637

U.S.A.

Tel: 773 702 9979

Fax: 773 702 0730

E-mail: dwight_semler@law.uchicago.edu

PUBLICATIONS OF SPECIAL INTEREST
229

or: Eastern European Constitutional

Review

Alison Rose

COLPI

Nador utca 11

Budapest

1051-Hungary

Tel: 361 327 3102

Fax: 361 327 3103

E-mail: rosa@osi.hu

Helsinki Monitor

Netherlands Helsinki Committee

P.O. Box 30920

2500 GX The Hague

The Netherlands

Tel: 31 70 34 21 855

Fax: 31 70 34 21 858

E-mail: a.bloed@pobox.ruu.nl

Netherlands Quarterly of 

Human Rights

Netherlands Institute of Human

Rights (SIM)

Janskerkhof 16

35123 BM Utrecht

The Netherlands

Tel: 31 30 25 38 033 

Fax: 31 30 25 37 168

E-mail: sim@rgl.ruu.nl

Human Rights Law Journal

N. P. Engel

P.O. Box 1940

77679 Kehl am Rhein

Germany

Tel: 49 7851 2463 or 75275

Fax: 49 7851 4235

Human Rights Quarterly

Johns Hopkins University Press

Journals Publishing Division

701 W. 40th St., Suite 275

Baltimore, MD. 21211

U.S.A.

OSCE-Jahrbuch

Nomos Publishers, Baden-Baden

Germany

Institut für Friedensforschung 

und Sicherheitsproblematik an 

der Universität Hamburg (IFSH)

Falkenstein 1

22587 Hamburg

Germany

Tel: 49 40 86 60 770

Fax: 49 40 86 63 615

A Russian edition of the yearbook was

published in 1996, German, Russian, and

English versions are contemplated for 1997.

The SIPRI Yearbook: Armaments,

Disarmament and International

Security

Oxford University Press 

Oxford, England, 

for The Stockholm International

Peace Research Institute (SIPRI)

Frösunda

17153 Solna

Sweden

Tel: 46 8 65 59 700

Fax: 46 8 65 59 733

E-mail sipri@sipri.se

Homepage: http://www.sipri.se

The Institute publishes an authoritative

yearbook on security and armament issues,

conflict resolution, and OSCE activities.
ELECTRONIC FORMAT RESOURCE MATERIALS

Gopher and Web Sites

United Nations Gopher, Press Releases, SG Statements and MessagesHuman Rights Committee

gopher://gopher.undp.org.70+11/uncurr/press__releases/HR

Summary of United Nations Human Rights Agreements

http://www.traveller.com/~hrweb/legal/undocs.html

United Nations Gopher

gopher://nywork1.undp.org:70/

Accesses all UN documents, resolutions, conference documents, telephone directories, etc. 

UNICEF Gopher

gopher://hqfaus01.unicef.org/

The main source for UN information about children. Contains the full text of the Convention on

the Rights of the Child, and information on United Nations child survival, development, and

advocacy programs.

University of Minnesota Human Rights Library

http://www.umn.edu/humanrts/

Full texts of the International Covenant on Civil and Political Rights and other international

instruments.

WomensNet-Women’s Equality Beijing

gopher://gopher.igc.apc.org/11/women

Many documents on international issues affecting women, including papers of the Fourth World

Conference on Women. Provides links to other women’s information sources on the Internet.

Women’s Studies and Resources

gopher://cwis.uci.edu:7000/11/gopher.welcome/peg/women

Multiple sources on women’s issues.

Databases

Human Rights on CD-ROM: Bibliographical Database for United Nations

Documents and Publications, United Nations, New York, 1994.

International Committee of the Red Cross, International Humanitarian

Law “IHL” CD-ROM, International Committee of the Red Cross,

Geneva, Switzerland.

Eighty-seven IHL treaty texts, plus commentaries, information on ratifications and reservations, etc.

230
LEXIS-NEXIS

LAWREV contains texts of many U.S. law reviews and periodicals, plus the Legal Resource

Index by IAC in the LGLIND file. Laws of some foreign countries are available. CELEX, a

European Union database, is also available through the INTLAW library in the ECLAW file.

LEXIS-NEXIS is a comprehensive, expensive, subscription service.

UN Index on CD-ROM, NewsBank/Readex, New Canaan, CT

A CD-ROM index to UN documents and publications since 1976.

WESTLAW

Comprehensive entries from international and American law journals and reviews, plus news and

information from many countries. An expensive subscription service.

Internet

American University Washington College of Law WWW, Center for

Human Rights and Humanitarian Law

Provides access to Human Rights Brief. For access to other international and U.S. human rights

material utilize:

http://www.wcl.american.edu/pub/humright/brief/index.html

Amnesty International On-Line (Official Internet Site)

http://www.amnesty.org/

Contains summaries of documents, Amnestry International publications, links to other sites, and

up-to-date global human rights information.

Coalition for International Justice

http://www.igc.apc.org/cij/

An international, nonprofit organization, the Coalition supports the Yugoslavia and Rwanda war

crimes tribunals. Contains case files, Rules of Procedure, and other documents related to the

investigations and prosecutions of war crimes.

Department of State Foreign Affairs Network

http://dosfan.lib.uic.edu/ERC/democracy.html

Contains the annual human rights country reports issued since 1993.

Diana (Yale Law School)

http://diana.law.yale.edu/

An international electronic human rights library on the Internet named for Diana Vincent-Daviss,

a leading bibliographer of human rights literature at the Schell Center for International Human

Rights at Yale University Law School.

Diana (University of Cincinnati Law School)

http://www.law.uc.edu/Diana/

Contains treaties, court decisions, legal briefs, and up-to-date information from governmental and

non-governmental sources.

231
European Union and Internet

http://www.helsinki.fi/~aunesluo/eueng.html

Information about the European Union

Global Democracy Network

http://www.gdn.org/

gopher://gopher:gdn.org:70/1

Includes Parliamentary Human Rights Foundation papers, the CSCE site, Human Rights Watch

Human Rights Reports; operated by the United States’ Congressional Human Rights Foundation.

Accesses the Parliaments of the World site:http://www.gdn.org/flags.html

Human Rights Gopher

gopher://gopher.human rights.org:5000/1

Access to many major international Human Rights organizations, includes newsletters, action

alerts, press releases, etc.

Human Rights Web

http://www.hrweb.org

Information on meetings and conferences, home pages of human rights organizations, lists of

resources, Internet-based databases.

International Affairs Resources (IANWEB)

http://www.etown.edu/vl/

Links to international organizations such as the UN, OSCE, NATO, plus national government

information sources.

International Committee of the Red Cross (ICRC)

http://www.icrc.org

Texts of international humanitarian law, links to other Red Cross/Red Crescent sites, information

on conflicts and conflict victims.

OSCE

http://www.osceprag.cz

Contains an OSCE homepage, which is regularly updated. The entry “High Commissioner on

National Minorities” will produce information about the mandate and activities of the High

Commissioner. The homepage also contains an OSCE Newsletter. 

Other information on OSCE is available: http://www.fsk.ethz.ch/osce/

This entry is produced by the Center for Security Studies and Conflict Research, Zurich, for the

Swiss Federal Department of Foreign Affairs. The Swiss provided an OSCE chair during 1996,

and membership in the governing troika, 1995-1997.

An additional homepage, with access to many additional links and resources, is maintained on

behalf of the Danish Chairman-in-Office for 1997:

http://www.um.dk/english/udenrigspolitik/osce/

232
233

A Special Note on the Council of Europe CODICES Database

The secretariat of the Council of Europe, European Commission for Democracy

through Law, has prepared a fully functioning database on constitutional case law,

building on its present widely-circulated Bulletin. The project is called CODICES,

DIgest of COnstitutional CasES. This database is the equivalent of 12,000 pages of

printed text in English, French or the original language, in which any type of search

can be performed.

Links have been set up allowing users to jump from the summary of a decision to its

full text, to gain direct access to the constitutional provision at issue, etc...

For example, users can rapidly find important decisions on a particular topic, read

certain full texts of decisions, got o the relevant sections of the constitution and

then print the results of their search.

CODICES is available on CD-ROM and on the Internet. Both versions are updated

with the publication of the Bulletin, i.e. three times a year. To be able to use this

CD-ROM, you should be using a PC with Windows 3.1 or 95 with at least 16 MB of

memory, equipped with a CD-ROM drive. For CODICES-Internet, access to the

Web and a standard Web browser like NetscapeTM or Internet ExplorerTM is

required. Access to the Internet version is obtained using a password provided by

the Venice Commission.

Subscription formulas for the Bulletin on Constitutional Case Law and the database

CODICES (post and packing free) can be obtained from:

Council of Europe Publishing

F-67075 Strasbourg Cedex

Tel: 33 (0)388 41 25 81

Fax: 33 (0)3 88 41 39 10

E-mail: publishing@coe.fr

United Nations Commission on Human Rights Reports

gopher://gopher.undp.org:70/11/undocs/eed/E/CN.4/1995

Full texts of some of the main 1995 thematic reports.

World Bank

http://www.worldbank.org/

Country projects information and other data from the World Bank.
OSCE

Organization for Security and

Cooperation in Europe

Secretariat

Kärntnerring 5-7, 4th Floor

1010 Vienna

Austria

Tel: 43 1 514 36 196 or 514 360

Fax: 43 1 514 36 99 or 514 36 96

E-mail: wkempaosce.or.at

Documentation Section of the Prague

Office of the OSCE Secretariat

Rytirsk 31

110 00 Prague 1

Czech Republic

Tel: 420 2 216 10 212

Fax: 420 2 242 23 882

E-mail: Quest@osceprag.cz

Homepage: http://www.osceprag.cz

The office distributes the OSCE Newsletter

and other publications.

Organization for Security and

Cooperation in Europe

Office of Democratic Institutions

and Human Rights

19 Ujazdowskie Ave.

00-557 Warsaw

Poland

Tel: 48-22-52-00-600

Fax: 48-22-52-00-605

E-mail: office@odihr.osce.waw.pl

The ODIHR Bulletin is available on the

Internet: http://www.osceprag.cz

OSCE High Commissioner on

National Minorities

P.O. Box 20062

2500 EB The Hague

The Netherlands

Tel: 31 70.31 25 500

Fax: 31 70 36 35 910

E-mail: cscehcnm@euronet.nl

234

UN

United Nations Centre for 

Human Rights

Palais des Nations

8-14 Avenue de la Paix

1211 Geneva 10

Switzerland

Tel: 41 22 734 6011, 731 0211 

Fax: 41 22 733 9879

(For issues concerning the Convention on the

Elimination of All Forms of Discrimination

Against Women.)

Centre for Social Development and

Humanitarian Affairs

United Nations Office at Vienna

Vienna International Centre

P. O. Box 500

1400 Vienna

Austria

Tel: 43 1 211 310

Fax: 43 1 232 156

United Nations High Commissioner

for Refugees

Palis des Nations

CH-1211 Geneva 10

Switzerland

Tel: 41 22 31 02 61

Fax: 41 22 739 8681

USEFUL ADDRESSES AND RESOURCES

Telephone and fax numbers, E-mail and Internet homepage addresses are included as available.
235

Council of Europe

European Commission on Human

Rights

(For individual complaints brought under the 

European Convention on Human Rights,

Article 25.)

Secretary-General of the Council 

of Europe

c/o European Commission on

Human Rights

67006 Strasbourg Cedex

France

Tel: 33 388 41 23 50

Fax: 33 388 41 27 93

European Committee for the

Prevention of Torture

Secretariat of the Committee

Council of Europe

B.P. 431 R6

67006 Strasbourg Cedex

France

Tel: (33). 388.41.23.36

Fax: (33).388.41.27.72

Human Rights Information Center

Council of Europe

67075 Strasbourg Cedex

France

Tel: 33 88 41 28 18

Fax: 33 88 41 27 04

Council of Europe

Human Rights Grants and

Fellowships Program

Directorate of Human Rights

B.P. 431 R6

F-67006 Strasbourg Cedex

France

Tel: 33 88 41 2000 

Fax: 33 88 41 2781/82/83

The European Commission for

Democracy through Law, the Venice

Commission

Secretariat of the Venice Commission

Council of Europe

F-6705 Strasbourg Cedex

France

Tel: 33 3 88 41 20 00

Fax: 33 3 88 41 37 38

Non-governmental Organizations

American Society of International

Law

2223 Massachusetts Avenue, NW

Washington, DC 20008-2864

U.S.A.

Tel: 202 939 6000

Fax: 202 797 7133

E-mail: pubs@asil.mhs.compuserve.com 

Amnesty International

International Secretariat

1 Easton Street

London, WC1X 8DJ

United Kingdom

Tel: 071 413 5500

Fax: 0 71 956 1157

Association of Bulgarian Lawyers for

Human Rights

Zdravka Kalaydjieva

33 Alabin St.

IV Floor - Office 432

Targovski Dom

Sofia 1000, Bulgaria

Tel: 359 2 875 673

Fax: 359 2 465 308

Bulgarian Association for Fair

Elections and Civil Rights

National Palace of Culture

Sofia 1414, Bulgaria

Tel: 359 2 650 507, 650 521

Fax: 359 2 801 038
Canadian Lawyers Association for

International Human Rights

1 Nicolas Street

Suite 512

Ottawa, Ontario, KIN 7B7

Canada

Tel: 613 562 0670

Fax: 613 563 8253

Center for Human Rights and

Humanitarian Law of American

University

Washington School of Law

4400 Massachusetts Ave.

Washington, DC 20016

U.S.A.

Tel: 1 202 885 2612

Fax: 1 202 885 3601

Center for the Study of Human Rights

Columbia University

1108 International Affairs Building

420 West 118th St.

New York, NY 10027

U.S.A.

Tel: 212 854 2479

Fax: 212 316 4578 FQCHECK

E-mail: cshr@columbia.edu

Homepage: 

www.columbia.edu/cu/human rights

Centre for Women War Victims

c/o Martina Belic

Mestovicev Trq 7 Zaprude

41000 Zagreb

Croatia

Tel: 38 41 67 89 72

Centre International de Formation a

l’Ensignement des Droits de

l’Homme et de la Paix

c/o EIP, 5 rue du Simplon

CH-1207 Geneva

Switzerland

Tel: 41 22 735 2422

Fax: 41 22 736 4863

236

Centre of Human Rights/ Centre of

Documentation and Information on

Human Rights in East Europe

c/o Mr. Marek A. Nowicki

il. Zwirki i Wigury 51 m. 74

02-091 Warsaw

Poland

Tel: 48 22 23 46 32

Conseil International en 

Droits de l’Homme

42 Frank Thomas

1208 Geneva

Switzerland

Tel/Fax: 41 22 700-0101

Croatian Council of the 

European Movement

Jurisiceva 1

41000 Zagreb

Croatia

Tel: 38 41 27 48 74

Fax: 38 41 27 19 81

Croatian Humanitarian Forum

Veslacka 2

41000 Zagreb

Croatia

Tel/Fax: 38 41 514 390

Defense for Children International

C.P. 88

CH-1211

Geneva 20

Switzerland

Tel: 41 22 734 0558; 340 558

Fax: 41 22 740 1145

Estonian Institute for Human Rights

Weizenbergi 39

EEO100 Tallin

Estonia

Tel: 7 2 42 62 34

Fax: 7 2 42 63 89
237

European Centre for Human Rights

Education

Jungmannova 29

P.O. Box 743

111 21 Praha 1

Czech Republic

Federation Internationale de l’Action

des Chretiens pour l’Abolition de la

Torture

27, rue de Maubeuge

75009 Paris

France

Tel: 33 1 42 80 01 60

Fax: 33 1 42 80 20 89

European Roma Rights Center

H-1525 Budapest 114

PO Box 10/24

Hungary

Fax: 36 1 138 3727

E-mail: 100263.1123@compuserve.com

Federation Internationale des Droits

de l’Homme

Bureau de l’ONU

6 rue J. Chs. Amat

CH-1202 Geneva

Switzerland

Federation Internationale des

Journalistes

International Press Center

Bd. Charlemagne 1 (BP5)

B-1041 Brussels

Belgium

Tel: 32 2 238 0942

Fax: 32 2 230 3633

Federation Internationale des Ligues

des droits de l’Homme

14, Pasage Dubail

F-75010 Paris

France

Tel: 33 1 40 37 54 26

Fax: 33 1 44 72 05 86

Fellowship of Reconciliation/USA

Box 271

Nyak, NY 10960-0271

U.S.A.

Tel: 1 914 358 4601

Fax: 1 914 358 4924

First Children’s Embassy

Strt. Ljubiceva No. 48

58000 Split

Croatia

Tel: 38 58 561 184

Fax: 38 58 45 473

Forum for Human Rights of the

Republic of Macedonia

Bul. Marks Engels Br 1/5-6

Skopje

Macedonia

Foundation on Inter-Ethnic Relations

Prinsessegracht 22

2514 AP The Hague

The Netherlands

Tel: 31 70 36 36 033

Fax: 31 70 34 65 213

E-mail: fier@euronet.nl

Foundation for Roma Child

Gessayova 12

Bratislava

Slovakia

Friends World Committee for

Consultation

13 avenue du Mervelet

Geneva

Switzerland

Tel: 41 22 733 3397

GlasNet

Ulitsa Yaroslavaskaya 8 

Korpus 3/216/217

129164 Moskwa

Russian Federation

Tel: 7 95 217 6182
Group for the Defense of Human

Rights of the Disabled

per Dredney Tupik 20

Kv. 6

Bataysk

Tostov Country

Russian Federation

Helsinki Citizen’s Assembly

Panska 7

Praha 1 11669

Czech Republic

Tel: 42 22 20 181

Fax: 44 22 20 948

Helsinki Citizen’s Assembly,

Macedonia

Bul. Ilinden 6.6/Room 303

91000 Skopje

Macedonia

Tel: 38 91 220 645

Fax: 38 91 227 108

Helsinki Committee-Albania

Qendra Nderkombetare e Kultures

Bulevardi “Deshmoret e Kombit”

Dhoma Nr. 35

Tirana

Albania

Tel: 355 42 33 671

Fax: 355 42 33 490

Helsinki Committee-Alma Ata

Koktem-1, 26

Apt. 43

Alma-Ata 480070

Kazakhstan

Tel: 32 72 477 079

Helsinki Committee-Bulgaria

Macedonia Blvd., No. 9, Entr. B

Sofia

Bulgaria

Tel/Fax: 359-2 526 277

238

Helsinki Committee-Canada

205 Edmonton St.

2nd Floor

Winnipeg

Manitoba R3C 1R4

Canada

Tel: 1 204 944 1831

Fax: 1 204 956 2819

Helsinki Committee-Croatia

Gredelja 2

41000 Zagreb

Croatia

Tel: 38 41 514 744

Fax: 38 41 510 035

Helsinki Committee-Czech Republic

Hrad, post. Schr. 7

CS-119 00 Praha 1

Czech Republic

Tel: 42 2 533 361

Fax: 42 2 551 968

Helsinki Committee-Finland

P.O. Box 696

SF 00101 Helsinki

Finland

Tel: 358 0 135 1470

Fax: 358 0 135 1101

Helsinki Committee-France

BILD

50, rue de Laborde

F-75008 Paris

France

Tel: 33 1 4387-9691

Fax: 33 1 4293 5094

Helsinki Committee-Germany

c/o Bundestag, Bundeshaus

D-5300 Bonn 1

Germany

Tel: 49 228 165 094

Fax: 49 228 168 6498
239

Helsinki Committee-Hungary

c/o Ferenc Koszeg

Deri Miksa 10

H-1084 Budapest

Hungary

Tel: 36 1 113 7574

Fax: 36 1 134 3504

Helsinki Committee-Italy

Corso Duco di Genova 92

I-00121 Rome

Italy

Tel: 39 6 56 46 313

Fax: 39 6 56 46 314

Helsinki Committee-Kosova

Taslixhe I 36a

38000 Prishtina

Yugoslavia

Tel/Fax: 38 38 34 786 

Helsinki Committee-Netherlands

Netherlands Helsinki Committee

P.O. Box 30920

2500 GX The Hague

The Netherlands

Tel: 31 70 342 15 55

Fax: 31 70 342 18 58

E-mail: a.bloed@pobox.ruu.nl

The Netherlands Helsinki Committee publishes

Helsinki Monitor, edited by Arie Bloed. 

Helsinki Committee-Romania

Calea Victoriei 120

Sector 1

Bucharest

Romania

Tel: 40 1 312 4528

Fax: 40 1 11 0731

Helsinki Committee-Norway

Den Norske Helsingforkomite

Uregaten 50

N-0187 Oslo

Norway

Tel: 47 22 57 00 70

Fax: 47 22 57 00 88

Helsinki Committee-Slovenia

Cigaletova 5

61101 Ljubljana

Slovenia

Tel: 38 61 302 946

Fax: 38 61 126 158

Helsinki Committee-Slovakia

Zabotova 2

81104 Bratislava

Slovakia

Tel: 42 7 491 859

Fax: 42 7 330 114

Helsinki Committee-Spain

Sonoso Cortumans 8

E-28015

Madrid, Spain

Tel: 34 1 446 9977/ 9988

Fax: 34 1 446 9988

Helsinki Committee-Sweden

Svenska Kommitten for Manskliga

Rattigheter Enligt Helsingforsavtalet

c/o Ms. Marianne Wahlberg

Fredrikslundsvagen 41

S-161 44 Bromma

Sweden

Tel: 46 8 26 03 78; 80 07 18

Fax: 46 8 61 11 418

Helsinki Committee-Switzerland

c/o Monika Schar

Postfach 6363

Spitalgasse 34

CH-3001

Bern, Switzerland

Tel: 41 31 22 04 31

Fax: 41 31 21 53 63

Helsinki Committee-UK

c/o Lord Avebury

House of Lords

London SW1A OP

UK
Helsinki Committee-USA

485 Fifth Ave.

New York, NY 10017-6104

U.S.A.

Tel: 1 212 972 8400

Fax: 1 212 972 0905

Helsinki Group-Russian Federation

Moscow Helsinki Group

Luchnikov pereulok d. 24

pod. 3 kv. 5

101000 Moscow

Russian Federation

Tel: 7 095 206 0923/0924

Fax: 7 095 116 7682/ 206 8853

Helsinki Foundation for Human

Rights

Bracka 18 apt. 62

00-028 Warsaw

Poland

Human Rights Center

University of Minnesota Law School

Room 437

229 Nineteenth Ave. South,

Minneapolis, MN 55455 

U.S.A.

Tel: 1 612 626 0041; 625-5027

Fax: 1 612 625 3478; 625 2011

Human Rights Information and

Documentation System

2 rue Jean-Jaquet

CH-1201 Geneva

Switzerland

Tel: 41 22 741 1767

Fax: 41 22 741 17 68

Human Rights Program

Harvard Law School

Pound Hall

Room 401

Cambridge, MA 02138

U.S.A.

Tel: 1 617 495 3107; 495 9362/63

Fax: 1 617 495 1110

240

Human Rights Watch

485 Fifth Avenue

New York,

NY 10017-6104

U.S.A.

Phone: 1 212 972 8400

Fax: 1 212 972 0905

Hungarian Human Rights

Foundation

Lovag Ut. 15, 3/7

Budapest 1066

Hungary

Tel: 36-1 315 032

Institute for Human Rights and

Democracy

7/2 Tverskoi Blvd.

Moscow 103104

Russian Federation

Tel: 7 95 231 3402; 203 7697

Fax: 7 95 203 7697; 292 6511

Institute for Human Rights and

Political Studies

Bolshaya Gruzinskaya St. 3

Moscow 123242

Russian Federation

Tel: 7 095 255 9014

Fax: 7 095 255 9014/9852

International Alert

1 Glyn Street

London, SE11 5HT

United Kingdom

Tel: 44 71 793 83 83

Fax: 44 71 793 79 75

International Bar Association

271 Regent Street

London W1R 7PA

United Kingdom

Tel: 171 629 1206

Fax: 171 409 0456
241

International Commission of Jurists

26 chemin de Joinville

P.O. Box 160

CH-1216 Cointrin/Geneva

Switzerland

Tel: 41 22 788 47 47

Fax: 41 22 788 48 50

International Committee of the 

Red Cross

Information Department

19 avenue de la Paix

CH-1202 Geneva

Switzerland

Tel: 41 22 734 60 01

Fax: 41 22 733 20 57

International Helsinki Federation for

Human Rights

Rummelhardtgasse 2/18

A-1090 Vienna

Austria

Tel: 43 1 402 7387; 408 8822

Fax: 43 1 408 7444

International Ombudsman Institute

W238 Law Center

University of Alberta

Edmonton

Alberta T6G 2H5

Canada

Tel: 1 403 492 3196

Fax: 1 403 492 4924

Inter-Parliamentary Union

Place du Petit-Saconnex

C.P. 438

CH-1212 Geneva, 19

Switzerland

Tel: 41 22 734 4150

Fax: 41 22 734 3141

Interrights

5-15 Cromer Street

Kings Cross

London WC1H 8LS

United Kingdom

Tel: 44 71 278 3230

Fax: 44 71 278 4334

Lawyers Committee for Human

Rights

330 Seventh Avenue

10th Floor

New York, NY 10001

U.S.A.

Tel: 212 629 6170

Fax: 212 967 0916

E-mail: nyc@lchr.org

Homepage: http://www.lchr.org and

http://www.witness.org

Max-Planck-Institut fur

Auslandisches Offentliches Recht

und Volkerrecht

Berlinner Strasse 48

D-6900 Heidelberg 1

Germany

Tel: 49 6221 4821

Fax: 49 6221 482 288

Memorial Human Rights Center

P.O. Box 552

Moscow 125057

Russian Federation

Tel: 7 95 200 6506; 976-0343

Fax: 7 95 973 2094/ 976-0343

Minnesota Advocates for 

Human Rights

Suite 1000

310 Fourth Avenue South

Minneapolis, MN 55415-3302

U.S.A.

Tel: 612 341 3302

Fax: 612 341 2971

E-mail: mnadvocates@igc.apc.org

Internet:

http://www.umn.edu/humanrts/mnadvocates

Minority Rights Group

389 Brixton Road

London, SW9 7DE

United Kingdom

Tel: 71 978 9498

Fax: 71 738 6265
Movement of Human Rights of

Kyrgyzstan, 720000

Abdumomunon St. 205

Biskek

Kyrgyzstan

Tel: 733 12 222 486

Netherlands Institute of 

Human Rights

Janskerkof 16

35123 BM Utrecht

The Netherlands

Tel: 31 30 53 80 33

Fax: 31 30 53 70 20

Polska Liga Obrony Praw Czlowieka

ul. Klonowica 16b/15

71244 Szczecin 43

Poland

Poznan Human Rights Center

Institute of Legal Studies

ul. Mielzynskiego 27/29

61-725 Poznan

Poland

Romani International Union

Ethnic Federation of Roma

P.O. Box 2268

Bucharest 70100

Romania

Romanian Association for 

Women’s Rights

8 Radu Boiangiu St.

Bloc 38, Apt. 29 S

Bucharest

Romania

Tel: 40 1 665 3059

242

Some Non-governmental

Organizations Funding Human

Rights Activities

Ford Foundation

320 East 43rd St.

New York, NY 10017

U.S.A.

Tel: 1 212 573 5000

Fax: 1 212 599 4584

Friedrich Ebert Stiftung

Godesberger Allee 149

5300 Bonn 2

Germany

Tel/Fax: 49 228 883 396

Friedrich Naumann Stiftung

Margaretenhof

Königswinterer Strasse 409

D-53639 Königswinter

Germany

Tel: 49 22 33 70 1159

Fax: 49 22 33 70 1188

Konrad Adenauer Stiftung

Rathausalle 12

5205 Sankt Augustin

Germany

Tel: 49 22 41 2460

Fax: 49 22 41 246 508 

in Russia: Minskaya el. (Syetun, House 19c)

Moscow

Nederlandse Organisatie 

Voor Internationale

Ontwikkelingssamenwerking

Amaliastraat 7

2514JC The Hague

The Netherlands

Tel: 31 70 342 1758

Fax: 31 70 361 4461

E-mail: admin@noviv.antenna.nl
243

Reporters sans frontières

5, rue Geoffroy Marie

75009 Paris

France

Tel: 33 1 44 83 84 84

Fax: 33 1 45 23 11 51

Soros Foundations

888 Seventh Ave.

New York, NY 10106

U.S.A.

Tel: 1 212 757 2323

Fax: 1 212 974 0367

Westminster Foundation for

Democracy

10 Storey’s Gate

Westminster

London SW1P 3AY

United Kingdom

Tel: 44 171 976 7565

Fax: 44 171 976 7464

The United States Agency for

International Development has a

number of grants supporting nongovernmental human rights

organizations in different countries.

Application should be made through

USAID in the American Embassy of

the host country. Additional

information can be obtained from:

US Agency for International

Development

320 21st St. NW

Washington, DC 20523

U.S.A.

Tel: 1 202 547 9620

Fax: 1 202 663 2772

Of special note...

Human Rights Internet

8 York St., Suite 302

Ottawa, Ontario

K1N 586

Canada

Tel: 1 613 789-7407

Fax: 1 613 789-7414 

E-mail: hri@hri.ca or hriweb.ca

Human Rights Internet, supported by the

Canadian Development Agency, publishes

Human Rights Tribune, a quarterly magazine;

Human Rights Internet Reporter, a

comprehensive review with abstracts of

thousands of publications, the Funding

Directory, a directory of foundations, funding

agencies and other organizations funding

human rights work; A User’s Guide to Selected

Online Human Rights Information Sources, A

Survey of resources Available on the Internet for

Human Rights Educators, Human Rights

Thesaurus, and Teaching About Genocide.

An extensive list of funding possibilities is

contained in Funding Human Rights, an

International Directory of Funding

Organizations & Human Rights Awards,

published by Human Rights Internet,

Ottawa, Canada (address at left).
BIBLIOGRAPHY

Amnesty International Handbook, Amnesty International Publications,

New York, New York, 1991. A valuable guide to international human

rights law, how to organize a non-governmental human rights

organization, etc. 

Ralph Beddard, Human Rights and Europe, third edition, Grotius

Publications Limited, Cambridge, England, 1993.

Vincent Berger, Case Law of the European Court of Human Rights, in three

volumes, The Round Hill Press, Dublin, 1989-1995. Summaries of cases

and comments on domestic legal changes induced by the cases.

British Institute of Human Rights, Human Rights Case Digest (1990-),

Sweet & Maxwell, London.

Thomas Buergenthal, International Human Rights in a Nutshell, second

edition; West Publishing Co., St. Paul, Minn., 1995. An important

summary volume. 

Centre for Human Rights: Manual on Human Rights Reporting: Under Six Major

International Human Rights Instruments, United Nations, Geneva, 1991. 

Chart Showing Signatures and Ratifications of Council of Europe Conventions

and Agreements (1960-),Council of Europe Press, Strasbourg, ND.

Luke J. Clements, European Human Rights: Taking a Case Under the

Convention, Sweet & Maxwell, London, 1994.

Council of Europe, Yearbook of the European Convention on Human Rights

(1955/57-), Martinus Nijhoff Pub., The Hague, The Netherlands.

Contains text of Protocols to the Convention, reservations, Commission

and Court procedures, texts of Commission decisions and Court summary

judgments.

Digest of Strasbourg Case Law Relating to the European Convention on

Human Rights (1984-1985), Carl Heymanns Verlag, Köln, Germany, 6

vols. Periodically updated in loose-leaf volumes.

Kathryn English & Adam Stapleton, The Human Rights Handbook: a

Practical Guide to Monitoring Human Rights, The Human Rights Center,

University of Essex, Colchester, United Kingdom, 1995.

244
245

European Commission of Human Rights, Decisions and Reports = Décisions

et Rapports (1975-).

European Court of Human rights, Publications of the European Court of

Human Rights, Publications of the European Court of Human

Rights=Publications de la Cour Européenne des Droits de l’Homme, Council

of Europe, Strasbourg. Series A (1974-), Series B (1965-). Judgments and

decisions of the Court are contained in Series A, oral arguments,

pleadings, and related documents in Series B.

European Law Center, European Human Rights Reports [EHRR] (1979-)

(unofficial), Sweet & Maxwell, London. Court decisions since 1960, plus

select Commission decisions and Committee of Ministers resolutions. 

Framework Convention for the Protection of National Minorities, Council of

Europe, Strasbourg, France, 1995. 

From Helsinki to Vienna: Basic Documents of the Helsinki Process, Arie

Bloed (ed.) Martinus Nijhoff Publishers, Dordrecht, The Netherlands,

1993.

Donna Gomien, Short Guide to the European Convention on Human Rights,

Council of Europe, Publishing and Documentation Service, Strasbourg,

1993. A valuable short summary of Convention jurisprudence by a

respected international expert. 

Donna Gomien, David Harris, Leo Zwaak, Law and Practice of the

European Convention on Human Rights and the European Social Charter,

Council of Europe Publishing, Strasbourg, 1996. A somewhat more

extended commentary on Convention jurisprudence and Charter

contents by three leading European Human Rights experts.

Guide to International Human Rights Practice, (second edition), Hurst

Hannum (ed.) for the Procedural Aspects of International Law Institute

in collaboration with the International Human Rights Law Group,

University of Pennsylvania Press, Philadelphia, 1992.

Human Rights, a Compilation of International Instruments, in two volumes.

United Nations Publication ST/HR/1/Rev.5 (Vol. I, Part I and Part II)

United Nations, New York and Geneva, 1994.

Human Rights and the Judiciary, a Collection of International Documents,

edited by Frederick Quinn and Andrzej Rzeplinski, OSCE/ODIHR,

Warsaw, Poland, 1995. In Russian.
Human Rights in the Administration of Justice, a Manual on Human Rights for

Judges and Lawyers, Professional Training Series, No. 6, United Nations,

High Commissioner, Center for Human Rights, Geneva, 1997.

Human Rights in International Law, Basic Texts, Council of Europe Press,

Council of Europe, Publishing and Documentation Service, Strasbourg,

1992.

Human Rights Internet Reporter, a Listing of Organizations Concerned with

Human Rights and Social Justice Worldwide, Supplement to Volume 15 of the

Human Rights Internet Reporter, 1994, Human Rights Internet, Ottawa,

ON, Canada, 1994. A comprehensive listing of Human Rights

organizations current through 1994.

Mark W. Janis and Richard S. Kay, European Human Rights Law, the

University of Connecticut Law School Foundation Press, Hartford,

Connecticut, 1990.

Franz Kafka, The Trial, Schoken Books, New York, 1992.

Antonio La Pergola, “The European Constitutional Heritage,”

Introductory Statement, UniDem Seminar, European Commission for

Democracy through Law, Montpellier, France, November 22-23, 1996,

Council of Europe Document CDL-UDM (96) II, Strasbourg, France,

November 7, 1996.

Richard B. Lillich and Hurst Hannum, International Human Rights,

Problems of Law, Policy, and Practice, third edition, Little, Brown and

Company, New York, 1995.

Frank Newman and David Weissbrodt, International Human Rights: Law,

Policy, and Process, second edition, Anderson Publishing Company,

Cincinnati, Ohio, 1996.

Frank Newman and David Weissbrodt, International Human Rights: Law,

Policy, and Process, Selected International Human Rights Instruments and

Bibliography for Research on International Human Rights Law, second

edition, Anderson Publishing Company, Cincinnati, Ohio, 1996.

A.H. Robertson and J.G. Merrills, Human Rights in Europe, a Study of the

European Convention on Human Rights, third edition, Manchester

University Press, Manchester, England, 1993. A perceptive commentary

on Commission and Court procedures and case law.

246
Henry J. Steiner and Philip Alston, International Human Rights in Context,

Law, Politics, Morals, Clarendon Press, Oxford, 1996.

Hanna Suchocka, “Europe’s Constitutional Heritage and Social

Differences,” UniDem Seminar, European Commission for Democracy

through Law, Montpellier, France, November 22-23, 1996, Council of

Europe Document CDL-UDM (96) 2, Strasbourg, France, November 14,

1996.

World Conference on Human Rights, The Vienna Declaration and Programme

of Action, United Nations Publication DPI/1394-39399-August 1994-20M,

New York, 1993.

247
248

10.The Prohibition of Retroactive Application 

of Criminal Law, 174, 200

11. The Right to Recognition as a Person 

Before the Law, 22, 26, 28, 30, 66,

128, 142

12.The Right to Respect for Private and 

Family Life, Home and

Correspondence, 22, 32, 94, 113, 179

13.Freedom of Thought, Conscience and 

Religion, 15-16, 19, 22-25, 27-29,

33-34, 42, 44, 48, 55-57, 61-62,

65, 70, 77, 79, 81, 83, 86, 88, 96,

114-115, 117, 120, 124, 140,

142, 182-184, 202, 218

14.Freedom of Expression, 17, 23-24, 27, 

34, 42, 47-48, 61, 65, 67, 69, 70,

71, 78, 83, 91, 94, 96, 114, 116,

123-124, 140-141, 147, 182-187,

189-190, 198-199, 218

15.Freedom of Peaceful Assembly and 

Association, 23, 27, 34, 70, 83,

114, 140, 190-192, 218

16.The Right to Effective Remedies, including 

the right to know and act on one’s

rights, 16, 20, 24, 60, 68, 72, 82-

83, 115, 173

17.Derogations in time of public emergency, 

20, 36, 38, 73, 77, 95, 97, 115,

161, 200

18.The Right to Marry and Found a family, 

18, 32, 115, 181

19.The Right to Take Part in the Conduct of 

Public Affairs, including free

elections, 17, 24, 47, 67, 69, 116,

119, 196, 198, 201

20.The Right to the Protection of the Law, 

3, 20-22, 24, 67, 140

Basic Rights

Basic Rights, as enumerated in the

documents follow, using the outline of the

European Convention for the Protection

of Human Rights and Fundamental

Freedoms,1950, plus protocols.

Non-discrimination and equality, ii, 1, 7, 

21-22, 24, 26, 29-31, 60-61, 65, 79-80,

83, 86-88, 98-100, 107-109, 117-119,

128-130, 136-138, 140, 147, 166, 179,

181, 199, 201, 218, 230

1. The Right to Life, 16, 20, 111, 154, 185, 

200, 218

2. The Prohibition Against Torture, Cruel, 

Inhuman, or Degrading Treatment or

Punishment, 16, 35-36, 38, 49, 55,

63, 73-74, 83, 93, 111, 120, 127-

128, 131, 155-158, 218-219, 224

3. Freedom from Slavery and Forced Labor, 

111, 158, 185, 200

4. The Right to Liberty and Security of Persons,

including the rights of arrested or

detained persons, 21, 112, 156,

158, 163

5. The Treatment of Arrested or Detained 

Persons, 20-23, 45, 68, 92-93,

112, 121-123, 159, 165, 168, 170

6. Freedom from Imprisonment on Grounds 

of Inability to Fulfill a Contractual

Obligation, 21, 116, 160

7. Freedom of Movement and Freedom to 

Choose One’s Residence, 16, 26, 65,

75-76, 83-84, 116

8. Expulsion, 116-117, 157-158, 201

9. The Right to a Fair Trial, including the 

rights of persons charged with a

criminal offense, 20-23, 51-53, 57,

68-69, 113, 117, 163-165, 168,

171, 173, 184, 218

SUBJECT INDEX
249

21.The Right to the Peaceful Enjoyment of 

One’s Possessions, 71, 116, 196

22.Economic, Social and Cultural Rights in 

General, 15-19, 26-27, 29-30, 32,

49, 58-59, 62, 67-68, 72, 76, 78,

83, 85, 100, 107, 123, 128, 130,

136, 140, 146, 201, 211

23.The Right to Work, 17, 31

24.The Right to Just Conditions of Work, 117

25.The Right to Social Security, 17-18, 27, 

31-32, 76, 109, 118, 166

26.The Right to protection

Children and Young Persons, 18, 24,

33-34, 37, 59-60, 62, 72,

118-119, 154, 236

Civilian Persons in time of War, 55-58

Elderly Persons, 119

Family, 3, 17-18, 24, 32, 53, 56, 

65, 94, 118

Journalists, 65, 96-97, 143-144

Migrant Workers, 76, 99, 119

Persons Belonging to Minority Groups,

6-8, 24, 28-29, 80-81, 83, 89,

138-142, 147, 214, 226, 245

Women, 18, 20, 30, 56, 62, 99, 

118, 136-138

27.The Right to an Adequate Standard of 

Living, 17-18, 118

28.The Right to Health and Social and 

Medical Assistance, 40, 53-54, 118

29.The Right to Benefit from Social Welfare 

Services, 33, 95, 118

30.The Right to Education, Vocational 

Guidance and Training, 12, 17-18,

23, 27, 29-30, 32-33, 36, 45, 47-

48, 64, 72, 76, 79, 82, 86, 91-92,

99-100, 109, 116, 118, 130, 142,

215

31.The Right to Culture, 49, 59, 62, 79-89, 

98, 107-109, 123, 139-140, 142

32.The Rights of Persons Belonging to 

Minority Groups, 1, 9-10, 15, 19,

24, 28-29, 59, 62, 78-81, 83-89,

101-102, 104-107, 138-143, 232,

234

33.The Rights of Parents or Legal Guardians, 

23, 31-32, 34, 181

34.The Rights of Children and Young Persons,

1, 15, 18, 23, 33-34, 54, 60, 

62-63, 117, 118, 130, 230, 237

35.The Rights of Women, 1, 15, 18, 20, 24, 

29-33, 34, 56, 59-62, 99-100,

115, 118-119, 128-130, 136-137,

146-147, 155, 181, 211, 230,

234, 236, 242

36.The Rights of Disabled Persons, 33,63-65,

100-101, 109-110, 118-119, 154,

238

37.The Rights of Foreigners, 97, 108, 116

38.The Rights of Migrant Workers, 9, 60, 76,

85, 98, 108, 119

39.The Rights of Workers, 100, 117-119, 

193, 202

40.The Rights of the Elderly, 119
Other Subjects

Administration of Justice, 36-54, 

including Law Enforcement 

Officials, 37-41,

Judiciary, 41-44, 67-68, 90-92, 

132-136,

Lawyers, 44-51,

Prosecutors, 48-51

Victims of Crime, 51-54

Capital Punishment, 20, 74, 110, 116

Child, Convention on the Rights of,

33-34

Conference on Security and 

Cooperation in Europe, 65, 82, 101,

138

see Organization for Security and

Cooperation in Europe

Conscientious objectors, 75, 127

Convention on Discrimination 

Against Women, 29-32, 61, 99, 

130, 138, 146, 211, 234

Convention on the Rights of the 

Child, 33-34, 62, 72, 147, 211, 230

Copenhagen Meeting on the Human

Dimension, 66-82

Council of Europe, 2, 4, 11, 13, 78, 81,

97, 110-111, 115-116, 119, 128-130,

136-139, 143-145, 147, 151, 153,

160, 177-178, 203-204, 220, 222,

225-227, 235, 244-247

Courts, rule of, 21-22

Democracy 59, 66-67, 77-78, 82-85, 

89-90, 101, 110

Derogation Clauses, 77, 96-97, 115, 

161, 200

Discrimination, Prevention of, 26-27

Domestic Jurisdiction, 25, 33, 36, 41-42,

44, 55, 63, 73, 117, 149, 154, 161,

165, 167, 198, 201, 204-205, 217,

221-222

250

Due Process, 20-23, 37-54, 56-58, 67,

72, 83, 92-93, 112, 121-123

Economic liberties, 84

Environment, 84

Ethnic Cleansing, 60, 62

European Convention on Human 

Rights, 13, 123, 137, 143, 145,

184, 201, 219, 226, 235, 244-246

European Court of Human Rights, 

115-116, 163, 222, 244-245

European Social Charter, 13, 117, 

119, 130, 137, 147, 201-202, 213-

214, 226, 245

Exhaustion of Domestic Remedies, 

25, 68, 115, 147, 217, 219-220

Friendly Settlement, 135, 205

Geneva Meeting on Experts on 

National Minorities, 85-89

Genocide Convention, 20, 54-55, 60, 

146, 211

Gross Violations of Human Rights, 

54-55, 60, 102

Hate Crimes, 108

Helsinki Final Act, 2, 65-66, 101, 

208-209

See Organization for Security and

Cooperation in Europe

Helsinki Fourth Follow-Up Meeting, 

101-110

High Commissioner for Human 

Rights (UN), 10-11, 102-106, 109,

224, 232, 234, 246

High Commissioner for National 

Minorities (OSCE), 102-106

Human Rights Committee (UN), 25, 

147, 216-219, 224, 226, 230

Intellectual Property, 70
251

International Bill of Human Rights,

15-17, 145-146

International Covenant on Civil and

Political Rights, 2, 19, 25, 68-69, 74, 

77, 91, 98, 146, 158, 184, 198, 211,

218, 224, 230

International Covenant on Economic,

Social and Cultural Rights, 2, 17-19, 

26-27, 58-59, 62, 68, 72, 76, 83,

107, 128, 130, 140, 146, 201, 211

International Humanitarian Law, 

109-110

Judiciary, 

role of, 21-23

independence of, 41-44, 67-68, 

90-92, 132-136

Lawyers, 44-51, 68, 91-92

Minorities, Protection of, 1, 9-10, 15, 

19, 24, 28-29, 59, 62, 78-81, 83-89, 

101-102, 104-107, 138-143, 232, 234

Moscow Meeting on the Human 

Dimension, 89-101

Non-Governmental Human Rights 

Organizations, 1, 9, 31, 59, 61, 

71-72, 74-75, 79, 85, 87-88, 98,

100-101, 105-106, 109, 143, 215,

223, 227, 231, 235, 242-244

Organization for Security and 

Cooperation in Europe, 2, 8, 12-13,

65, 217, 234

Optional Protocol to Covenant on 

Civil and Political Rights, No. 1, 

15-16, 25, 69, 145-146, 218, 224

Optional Protocol to the Covenant on 

Civil and Political Rights, No. 2, 

25, 74, 98, 147

Paris Charter for a New Europe, 82-85

Police Officers, standards of conduct,

37-41, 120-121

Prisons, rules for, 124-126

Prosecutors, 48-51

Prostitution, suppression of traffic in,

34-35

Racial Convention, 1, 23, 26-27, 49, 

54, 59, 61, 81-82, 84, 88, 98, 102,

108, 131, 211, 217, 219, 224

Racial Discrimination, 59, 81-82, 84, 

98, 102, 107-108, 130-137

Roma, 81, 88, 108

Self-determination of Peoples, 19, 

58, 65

States of Emergency, rights during, 

20, 95-97

Strikes, right to, 18

Torture Convention, 16, 34-36, 38, 

49, 55-56, 63, 73-74, 83, 93, 111,

120, 127, 155-158, 161, 200, 218

Trade Unions, 17

United Nations Charter, 15

United Nations Commission on

Human Rights, 75, 233

United Nations Convention on the 

Elimination of All Forms of

Discrimination against Women,

29-32

Universal Declaration of Human 

Rights, 15-17, 19, 21, 26, 30, 41-

42, 61, 77, 91, 145, 155, 158, 163,

174-175

War Crimes, 54-55

World Conference on Human Rights 

(Vienna), 58-64, 130, 147, 230,

247, 254
HUMAN RIGHTS, DEMOCRACY 

AND RULE OF LAW

We undertake to build, consolidate and strengthen

democracy as the only system of government of our nations. 

In this endeavor, we will abide by the following:

Human rights and fundamental freedoms are the

birthright of all human beings, are inalienable and are

guaranteed by law. Their protection and promotion is

the first responsibility of government. Respect for them

is an essential safeguard against an over-mighty State.

Their observation and full exercise are the foundation

of freedom, justice and peace.

Democratic government is based on the will of the

people, expressed regularly through free and fair

elections. Democracy has as its foundation respect for

the human person and the rule of law. Democracy is the

best safeguard of freedom of expression, tolerance of all

groups of society and equality of opportunity for each

person.

Democracy, with its representative and pluralist

character, entails accountability to the electorate, the

obligation of public authorities to comply with the law

and justice administered impartially. No one will be

above the law.

Charter of Paris for a New Europe-CSCE Summit

Paris, November 21, 1990

252
ABOUT THE AUTHOR

Dr. Frederick Quinn has assisted many governments in the

New Independent States on constitutional and judicial change

and has led seminars on these issues throughout Central and

Eastern Europe. A former International Programs Adviser to

the Federal Judicial Center, Washington, D.C., Dr. Quinn is

author of Democracy at Dawn: Notes from Poland and Points

East, and (with Andrez Rzeplinski) Human Rights and the

Judiciary, a Collection of International Documents, The Federalist

Papers Reader and other books plus numerous articles for The

Legal Times and other publications on international legal and

political issues. He worked closely with the Chief Justice of the

United States, Warren E. Burger, during the Bicentennial of

the U.S. Constitution and is a former Rule of Law Advisor to

OSCE/ODIHR. 

OSCE

Office for Democratic Institutions and Human Rights

19 Ujazdowskie Ave.

00-557 Warsaw 

Poland

Telephone: 48-22-52-00-600

Fax: 48-22-52-00-605

E-mail: OFFICE@ODIHR.OSCE.WAW.PL

Produced by the Office of International Information Programs

Managing Editor: Chandley McDonald

Graphic Designer: Barbara Long

Alison Quinn photo
October 1999