State-Empowered Actors in the European Court of Human Rights – State Sovereignty and Council of Europe Authority

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Human rights conventions constitute a particular category of international law in respect of which individuals, exceptionally, are empowered to act because of their status as rights holders. Nowhere is this more evident than in regional bodies, such as the Council of Europe, which are founded on human rights conventions the ratification of which is a necessary criterion for membership. For the Council of Europe this convention is the European Convention on Human Rights. It is also mandatory for members States of the Council of Europe to accept the right of individuals aggrieved that their rights as contained in the ECHR have been violated to petition the European Court of Human Rights (ECtHR) for redress. Decisions of the ECtHR regarding applications are binding on the member State concerned and generally followed by other member States. The centrality of the individual as an applicant before the ECtHR is evidenced by the fact that the vast majority of the ECtHR’s case load consists of such applications. But individuals are not the only actors which participate in the interpretation of human rights. Non-state actors, in particular state-empowered actors, in the language of Sivakumaran, are increasingly relevant to making and shaping international law including its interpretation, application and development.

This blog examines the development of human rights interpretation by the ECtHR from a specific point of view: to what extent do instruments relevant to the rights contained in the ECHR, but adopted in Council of Europe institutions which consist of members appointed by the member States that are independent of those states and who do not represent them, establish evidence of agreement among the states? The ECtHR’s remit is simply the correct application of the ECHR. According to the ECtHR doctrine that the ECHR is a living instrument and thus must reflect the current consensus on the rights therein, not that of 1950 when it was written, the issue which arises is on the basis of what documents is the evolution evidenced? This contribution looks at the role of one specific Council of Europe body: the European Commission against Racism and Intolerance (ECRI), a human rights monitoring body which specialises in questions relating to the fight against racism, discrimination (on grounds of “race”, ethnic/national origin, colour, citizenship, religion, language, sexual orientation and gender identity), xenophobia, antisemitism and intolerance in Europe.

Established in 1993, its 47 members are appointed by member States on the basis of their independence, impartiality, moral authority and expertise in dealing with issues of racism, racial discrimination, xenophobia, antisemitism and intolerance. They do not represent their state within ECRI. Thus, in the conceptualisation of Sivakumaran, they are a good example of a State-empowered entity but one which is not composed of state representatives. The Commission carries out two main roles: first, it monitors states regarding racism and discrimination to produce regular country reports which include extensive information on racism and discrimination in the state under investigation and make recommendations for improvement; and secondly, General Policy Recommendations (GPRs) which establish standards for state action within the ECRI mandate. There are currently 16 GPRs ranging from GPR1 which establishes the necessary definitions regarding combatting racism, xenophobia, antisemitism and intolerance, to GPR16 which set out standards for safeguarding irregularly present migrants from discrimination.

The question posed here is: to what extent has the work of ECRI, bearing in mind its composition, been taken into account by the ECtHR and for what purposes? The first limb of ECRI’s work, the country reports, have proven a valuable source of evidence for the ECtHR. The Court has referred to these reports 59 times in its judgments starting in January 2001 and most recently in April 2019. Generally, the ECtHR uses the reports to clarify and substantiate states’ or applicants’ factual claims or query state authorities’ accounts of their activities to combat racism. The most frequent single area of racism and intolerance in which the ECtHR uses ECRI country reports is in claims of human rights breaches in respect of Roma/Gypsies. But this is by no means the sole area where the country reports are relevant. The Court both includes ECRI country reports among the relevant international instruments and material for determining complaints which it sets out at the beginning of each judgment, as well as in the body of its judgments (see for instance Ognyanova & Choban v Bulgaria 23 February 2006 para 76). Both the Chambers and the Grand Chamber use ECRI country reports as evidence of practices (eg Lingurar v Romania 16 April 2019 Chamber Decision or Leyla Sahin v Turkey 10 November 2005 Grand Chamber). This use of ECRI reports is perhaps the least controversial. Evidence of state practices in respect of racism and discrimination as determined by ECRI in its country reports are publicly available and states are entitled to respond to them. The authority of ECRI before the Court in this instance is as a reliable source of evidence.

The ECtHR’s use of the second limb of ECRI work – standard setting in the form of GPRs – poses the question to what extent can a supra-national court accept standard setting instruments which are not produced by inter-state bodies for the purpose of establishing the correct interpretation of a human right contained in a multinational convention? In 26 judgments the ECtHR has referred to ECRI GPRs. Most frequently they are included under the heading relevant international instruments and materials at the outset of judgments (see for instance Sava Terentyev v Russia 28 August 2018 paras 38-39). But often they are also used in the text of the judgment (see for instance Mariya Alekhina & Others v Russia 17 July 2018 para 222). The Court has clarified its use of these standard setting recommendations stating “In a number of judgments the Court has used, for the purpose of interpreting the Convention, intrinsically non-binding instruments of the Council of Europe organs…These methods of interpretation have also led the Court to support its reasoning by reference to norms emanating from other Council of Europe organs even though those organs have no function of representing States Parties…In order to interpret the exact scope of the rights and freedoms guaranteed by the Convention the Court has, for example made use of the work of…[ECRI]” paras 74-75 Demir & Baykaya v Turkey Grand Chamber 12 November 2008.

But are all the GPRs of the same value for the ECtHR? So far in its case law the Court has referred to eight of the 16 GPRs. The most frequently used is GPR7 on national legislation to combat racism and racial discrimination. It sets out the key elements which should feature in comprehensive national legislation effectively to combat racism and racial discrimination. Five times the Court has referred to the explanatory memorandum to this GPR to establish standards to which national legislation should comply and against which the Court assesses existing legislation (most recently in GRA Stiftung gegen Rassismus und Antisemitismus v Switzerland 9 January 2018).

The second most used GPR is Number 3 combating racism against Roma/Gypsies. It takes as its starting point the fact that Roma/Gypsies suffer throughout Europe from persisting prejudices, are victims of a racism which is deep-rooted in society, are the target of sometimes violent demonstrations of racism and intolerance and that their fundamental rights are regularly violated or threatened. The ECtHR has referred to it seven times (most recently in Mursic v Croatia 20 October 2016). Thereafter GPR Number 15 which combats hate speech merits reference in three cases and to its explanatory memorandum in two (eg Savva Terentyev v Russia 28 August 2018). This GPR states that hate speech is based on the unjustified assumption that a person or a group of persons are superior to others which incites acts of violence or discrimination, thus undermining respect for minority groups and damaging social cohesion.

The only other GPR which appears more than once in the Court’s decisions is Number 8 (combating racism while countering terrorism) which is referenced in two cases (most recently Antayev and Others v Russia 3 July 2014). Other GPRs which have only one reference are: GPR 1 (combatting racism, xenophobia, antisemitism and intolerance) in Vona v Hungary 9 July 2013, 5 (combatting intolerance and discrimination against Muslims) Hasan & Eylem Zengin v Turkey 9 October 2007, 10 (combatting racism and racial discrimination in and through school education) Aksu v Turkey 15 March 2012 , 11: (combatting racism and racial discrimination in policing) Szabo and Vissy v Hungary 12 January 2016, and 13 (combatting anti-Gypsysm and discrimination against Roma) Bagdonavicius et autres c Russie 11 October 2016. This leaves seven GPRs to which the ECtHR has yet to make reference (2: Equality Bodies to combat racism and intolerance at national level; 4: national surveys on the experience and perception of discrimination and racism from the perspective of potential victims; 6: combatting the dissemination of racist, xenophobic and antisemitic material via the internet; 9: the fight against anti-Semitism; 12: combating racism and racial discrimination in the field of sport; 14: combating racism and racial discrimination in employment; 16: safeguarding irregular present migrants from discrimination).  

The value of ECRI for the ECtHR in the interpretation of the ECHR has been established not only as a reliable source of evidence regarding practices in various member States, but also as a standard setter for the 47 Council of Europe states. As an impartial organ whose members come from all the member States but represent none of them, the Court’s welcome to ECRI’s GPRs as evidence of standards against which member States’ compliance with ECHR human rights should be tested and used in real cases of disputes between individuals and states is evidence of the changing status of human rights actors. The existence of state-empowered entities which have no role in representing states’ interests is particularly interesting as it indicates that states acquiesce in this modification of their own powers.

The example discussed here is the ECtHR which, over an extended period (2001 – 2019), has institutionalised its reliance on a Council of Europe organ which does not represent the member States for the purpose of determining the standards applicable to the correct interpretation of the ECHR. The ECRI GPRs are treated with great respect by the ECtHR. In the Court’s judgments they are set out under the heading international instruments and material directly after resolutions of the Committee of Ministers (the Council of Europe body which represents state authorities) and those of the Parliamentary Assembly (which represents the Parliaments of the member States). This sustained use of ECRI standards in ECtHR judgments constitutes an important step in rethinking the role of the member States. It has not led to a mistrust of ECRI by member States or any obvious attempt to subvert it by appointing only ‘safe pairs of hands’. Instead member States seem to embrace ECRI as a source of expertise in a very sensitive field which arises from a source which is not driven by appreciations of political interest set by the capitals. Certainly, the ECtHR appears to have done so.

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Kishor Dere says

December 25, 2019

Prof. Guild has elucidated the role of ECtHR in a very crucial field. Her analysis of the ECtHR judgments covering a fairly long period of time points out how its judges have persistently alluded to the pertinent ECRI GPRs. Ideally, any relevant document that furthers the cause of justice, regardless of its origin, should be used by the courts. The ECtHR has done a commendable job that has rightly made it a respectable institution.

Stephanos Stavros says

January 7, 2020

Thank you, Elspeth, for your blog, which raises important questions concerning the relationship between the ECtHR and the European Commission against Racism and Intolerance. ECRI has invested considerable effort indeed in producing its own soft law, in the guise of general policy recommendations (GPRs), and it is encouraging that the Court takes the latter into consideration when interpreting existing human-rights standards. Of course, the GPRs’ main strength lies in the fact that they are based on the unique expertise that ECRI has built in the course of its monitoring activities, i.e. its country visits and reports. The same country reports form, however, part of the material that the Court has used to “construct” several ground-breaking, forward-looking, often daring judgments in the field of discrimination, hate-motivated violence and hate speech, such as D.H. and Others v. the Czech Republic, Féret v. Belgium, Fedorchenko and Lozenko v. Ukraine and Mariya Alekhina v. Russia. Thus, it is not surprising that the drafting and adoption of ECRI’s country reports (to the high standards expected by the states to which they are addressed) constitutes the bulk of this monitoring body’s work. CoE member states also expect the Organisation’s various human-rights mechanisms to function as a system (as Article 1 of ECRI’s Statute makes crystal clear). It would, therefore, be interesting to examine the mechanisms that have been put in place (including dialogue at the highest level and informal exchanges) to ensure consistency in the application of the relevant norms and prompt corrective action on the rare occasions when these are misunderstood. I hope that I am not mistaken in my belief that quite a bit has been achieved in this area in recent times and that “Strasbourg” (speaking with one voice) continues to make a distinctive contribution to the global fight against racism and intolerance.