Appendix – Comments by the Council of
Europe Commissioner for Human Rights (see also DD(2016)670)
The Commissioner’s mandate
1. The Commissioner underlines
that his mandate enables him to interact with human rights defenders,
to support their work and to take action to improve their protection.
In particular, Resolution Res (99) 50 on the Council of Europe Commissioner
for Human Rights, adopted on 7 May 1999 stipulates that “the Commissioner may
act on any information relevant to the Commissioner’s functions.
This will notably include information addressed to the Commissioner
by governments, national parliaments, national ombudsmen or similar institutions
in the field of human rights, individuals and organisations” (Article
5).
2. The Commissioner’s specific duty to work on issues related
to human rights defenders is further highlighted in the Declaration of
the Committee of Ministers on Council of Europe action to improve
the protection of human rights defenders and promote their activities,
adopted on 6 February 2008. The Declaration “[i]nvites the Commissioner
for Human Rights to strengthen the role and capacity of his Office
in order to provide strong and effective protection to human rights
defenders by […] continuing to act upon information received from
human rights defenders and other relevant sources, including ombudsmen
or national human rights institutions; […] continuing to meet with
a broad range of defenders during his country visits and to report
publicly on the situation of human rights defenders; […] working
in close co-operation with other intergovernmental organisations
and institutions, in particular the OSCE/ODIHR focal point for human rights
defenders, the European Union, the United Nations Secretary General’s
Special Representative on Human Rights Defenders and other existing
mechanisms”. The Declaration also calls on Council of Europe member
States to “co-operate with the Council of Europe human rights mechanisms
and in particular […] with the Commissioner for Human Rights by
facilitating his/her visits, providing adequate responses and entering into
dialogue with him/her about the situation of human rights defenders
when so requested.”
3. Although Article 1 of Resolution Res (99) 50 provides that
the Commissioner shall not take up individual complaints, this does
not prevent him to raise individual cases of human rights defenders
who are facing difficulties. Indeed, the 2008 Declaration invites
the Commissioner for Human Rights to strengthen the role and capacity
of his Office in order to provide strong and effective protection
to human rights defenders by “[i]ntervening, in a manner the Commissioner
deems appropriate, with the competent authorities, in order to assist
them in looking for solutions, in accordance with their obligations,
to the problems human rights defenders may face, especially in serious
situations where there is a need for urgent action” (paragraph 4.iii).
4. Throughout the years, the Commissioner and his predecessors
have used various tools in the framework of their mandate with the
aim of improving the situation of human rights defenders, assist
them when they are at risk and promote their work.
Cases of human rights defenders at risk
5. The Commissioner regularly intervenes
on individual cases of human rights defenders facing difficulties, especially
those who are at risk, and encourages concerned member States to
adopt adequate measures in accordance with their obligations, so
that human rights defenders are adequately protected and that they
work in a safe and enabling environment.
6. The Commissioner notably uses third party interventions in
cases before the European Court of Human Rights, according to Article
36, paragraph 3 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms. In particular, the Commissioner
submitted written observations concerning the following cases of
human rights defenders in Azerbaijan related to the institution
of criminal proceedings against them and their remand in custody:
Hilal Mammadov v. Azerbaijan (Application No. 81553/12), Intigam Aliyev
v. Azerbaijan (Application No. 68762/14), Anar Mammadli v. Azerbaijan (Application
no. 47145/14), Rasul Jafarov v. Azerbaijan (Application No. 69981/14),
Leyla Yunusova and Arif Yunusov v. Azerbaijan (Application No. 68817/14)
and Khadija Ismayilova v. Azerbaijan (Application No. 30778/15).
7. The Commissioner also submitted written observations in the
case of Svetlana Estemirova v. the Russian Federation (Application
No. 42705/11) concerning the abduction and murder of Ms Natalia
Estemirova (the applicant’s sister), a prominent human rights defender
in the Russian Federation who worked in the North Caucasus, and
the criminal investigation into those events.
8. Besides third party interventions, the Commissioner is also
raising cases of human rights defenders in the framework of his
dialogue with Council of Europe member States. This can be done
publicly or in a confidential manner. For example, the Commissioner
discussed the wave of threats and attacks targeting women’s rights
defenders in Armenia, in particular members of the Women’s Resource
Centre NGO, during his visit to the country in 2014.
Note The Commissioner’s
2014 report and 2015 observations on Georgia made reference to violence
against human rights defenders protecting the rights of LGBTI persons,
most notably on 17 May 2013.
Note The Commissioner and
his predecessor repeatedly raised the shortcomings in the investigation into
the murder of the journalist and writer Hrant Dink in Turkey, in
particular relating to instances of police misconduct and the absence
of victim involvement.
Note The Commissioner
also raised concerns about the issue of reprisals in particular
against certain professional groups in connection with non-violent
involvement in the Gezi events.
Note During his
recent visit to Turkey, he discussed instances of stigmatising rhetoric,
smear campaigns and ongoing investigations against human rights
defenders and lawyers.
Note On a number of occasions,
the Commissioner publicly raised through social media cases of human
rights defenders facing difficulties.
Enabling environment for the work of human
rights defenders
9. The Commissioner also assists
member States in developing a safe and enabling work environment
for human rights defenders. On various occasions, the Commissioner
assessed policies, laws and practices pertaining to the freedoms
of association, peaceful assembly and expression which affect the
working environment of civil society actors, as well as the effectiveness
of law enforcement and judicial bodies when it comes to protecting
human rights defenders at risk.
10. In 2013, the Commissioner published an
Opinion on the legislation in the Russian Federation on non-commercial
organisations – including the Law on Foreign Agents – in light of
Council of Europe standards. The Commissioner’s second
Opinion released in 2015 assessed the legal provisions adopted
subsequently as well as the implementation of the Law on Foreign
Agents in the Russian Federation, in particular the practical consequences
for non-commercial organisations.
11. In the framework of his country work on Azerbaijan, the Commissioner
expressed serious concern on various occasions regarding the extremely
restrictive legal framework governing the work of NGOs and its implementation,
as well as the legislation and practice concerning the freedoms
of expression and peaceful assembly.
Note Another
case where the Commissioner highlighted the importance of developing
an enabling environment for the work of NGOs is Hungary. In this
context, the Commissioner expressed concern about the stigmatising
rhetoric used against NGOs which were beneficiaries of the Norwegian
Civil Fund and which had been subjected to audits carried out by
the Hungarian Government Control Office.
Note
12. An enabling environment for the work of NGOs and human rights
defenders is not only defined by the absence of restrictions and
threats. It also implies that human rights defenders and NGOs are
able to participate meaningfully in consultation and decision-making
processes, in order for them to fulfil their role of watchdogs in
democratic societies. On a number of occasions, the Commissioner
recalled the importance of involving human rights organisations
and defenders in dialogue and consultation with the authorities
and other actors on policies, legislation and practices affecting
the human rights situation.
Regular interactions with human rights
defenders and reporting on their situation
13. The Commissioner regularly meets
and consults with human rights defenders in the course of his work. Human
rights defenders provide crucial information during country visits
and for the Commissioner’s country reports on specific human rights
issues. The Commissioner also draws upon the expertise of human
rights defenders for the purpose of his thematic work, notably in
the process of preparing Issue Papers.
14. Regular consultations with human rights defenders have been
taking place since 2008, with a view to discussing the situation
of human rights defenders in the Council of Europe area as well
as specific themes of importance for the Commissioner’s work.
Note The current Commissioner
hosted the following round-tables with human rights defenders since
the beginning of his mandate in 2012: The protection of migrant
rights in Europe (2012), Human rights and the security sector (2013),
and Women’s rights and gender equality in Europe (2015). Those events
helped the Commissioner and his Office to further develop their
country and thematic work on the areas discussed and to better support
human rights defenders and their work.
Co-operation with international partners
15. Co-operation with Council of
Europe bodies and relevant intergovernmental partners is essential
to improve the working environment and protection of human rights
defenders. At the level of the Council of Europe, the Commissioner
maintains good working relations with the Parliamentary Assembly
Rapporteur on human rights defenders and the Conference of international
non-governmental organisations. As noted previously, he also has
intervened as a third party by making written comments in cases
concerning human rights defenders before the European Court of Human
Rights.
16. The UN Special Rapporteur on the situation of human rights
defenders, the OSCE Office for Democratic Institutions and Human
Rights (OSCE/ODIHR) and the European Union feature as important
partners of the Commissioner on issues related to human rights defenders.
They regularly exchange information and meet, including in the framework
of the so-called inter-mechanisms process – the Commissioner hosted
the last inter-mechanisms meeting in Strasbourg on 25 and 26 February
2016.
Note The Commissioner, the
UN Special Rapporteur and the OSCE Representative on Freedom of
the Media issued a joint statement in June 2015 on the situation
of human rights defenders in Azerbaijan.
Note Another
example of co-operation relates to the participation of the Commissioner
and his Office in the preparation (2013) and the launch (2014) of
the OSCE
Guidelines on the protection of human rights defenders.
17. Finally, the Commissioner maintains good working relations
with international NGOs who are key actors in the protection of
human rights defenders and in ensuring that they can work in a favourable
environment.
Conclusion
18. Over the years, the Commissioner
was able to develop his action in favour of human rights defenders thanks
to the independence, the freedom and the flexibility of his mandate.
The Commissioner is of the opinion that it is not necessary to change
the mandate of his institution at this stage as it already allows
him to conduct important actions for the protection of human rights
defenders that he deems appropriate, including intervening on individual
cases. The Commissioner will continue to pursue his action in support
of human rights defenders as a matter of priority.
