The European human rights system is the most elaborate, as it was developed in reaction to the mass human rights violations during the Second World War, with human rights, the rule of law and pluralistic democracy as its main pillars. The main instruments of the Council of Europe and the European Union are binding on all Member States.
In addition to the universal system of human rights protection, several regional human rights systems have developed that provide a more salient standard of rights and their implementation. The advantage of regional systems is their ability to resolve complaints more efficiently. In the case of tribunals, judgements are binding with compensation, and Human Rights Commissions’ recommendations are often taken seriously by states. On the other hand, regional systems are more sensitive to cultural and religious concerns if there are valid reasons for them.
In this article only the European system will be addressed. In this sense, the European human rights system consists of three dimensions: the Council of Europe system, the Organisation for Security and Cooperation in Europe system and the European Union system.
Council of Europe’s Human Rights System
Within this system, there are several, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), which established the European Court of Human Rights, the European Charter (1961), which established the European Human Rights Committee; the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1987), which created the European Committee for the Prevention of Torture and Degrading Treatment or Punishment; the European Framework Convention for the Protection of National Minorities (1995), which designed the Advisory Committee to this convention. In addition to these bodies, the European Commission against Racism and Intolerance (1993), a European Commissioner for Human Rights (1999), the Committee of Ministers of the Council of Europe and the Parliamentary Assembly of the Council of Europe were also created.
However, the most important legal instrument of the Council of Europe is the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and its 14 Protocols because, besides abolishing the death sentence, they replaced the European Commission on Human Rights and the European Court of Human Rights with a permanent human rights court, called the European Court of Human Rights, and improved its procedures. This Convention covers civil and political rights in particular, but also the right to education.
In this context, the main instrument for the protection of human rights in Europe is the European Court of Human Rights, located in Strasbourg and its jurisdiction is mandatory and recognised by all member states of the Council of Europe. For a complaint to be admissible, four essential and prior conditions must be fulfilled:
- Violation of a right enshrined in the European Convention on Human Rights or its Additional Protocols.
- The author (or authors) of the complaint must be the victim (or victims) of the violation.
- Exhaustion of all effective national protection mechanisms.
- The complaint must be lodged within 6 months of exhaustion of national redress mechanisms.
If it is deemed admissible, a chamber of seven judges will decide on the merits of the case, i.e., its decision will be final if it is considered that the issue is not of relevance or does not represent a new line of jurisdiction. On the other hand, if one of these situations arises, the full court, composed of 17 judges, may intervene in an appeal. Judgments are binding and may provide for the award of damages. The Committee of Ministers is responsible for supervising the execution of judgements. However, this system shows a serious problem as it has received many complaints over the years, thus overloading the system. To solve this problem, Protocol 14 to the Convention was adopted in 2004, but further action is needed.
Human Rights System of the Organisation for Security and Co-operation in Europe (OSCE)
The OSCE is considered a very peculiar organisation, since it does not have a legal charter or international legal personality and its declarations and recommendations have a merely political character and are not binding on states. However, the OSCE carries out several activities in the area of human rights, particularly in the field of minority rights, namely: it plays an important role in various field missions, monitoring and reporting on the human rights situation, as well as promoting and providing assistance in cases ce protection; and it supports national human rights institutions in countries where it maintains missions (for example, the case of ombudsmen in Bosnia and Herzegovina or Kosovo).
In addition, special mechanisms in the form of a High Commissioner for Minorities (a conflict prevention mechanism), a Representative on Freedom of the Media, and an Office for Democratic Institutions and Human Rights have been established to support the democratisation process and the promotion of human rights.
The European Union’s human rights system
Since its creation, the European Union has included human rights and democracy as key concepts in the common European legal order. In this sense, human rights institutions/organs have been created: the Court of Justice of the European Union, which has developed a human rights jurisdiction, namely the European Convention on Human Rights; the European Commissioner for Justice and Fundamental Rights; and, the European Union Agency for Fundamental Rights (2007), established from the European Monitoring Centre on Racism and Xenophobia.
It should also be noted that the European Union places great emphasis on the principle of equality, in which the Member States must apply the principle of equal pay for men and women and adopt measures to ensure the principle of equal opportunities.
Written by: Maria Luisa Pereira
Barreto, Ireneu Cabral. “Os Sistemas Interamericano e Europeu de Proteção dos Direitos Humanos”, III Anuário Brasileiro de Direito Internacional, V. 1., Brasil. Available: https://www.corteidh.or.cr/tablas/r27123.pdf
ONU (2016). Derechos Humanos. Disponible: https://www.ohchr.org/Documents/Publications/HandbookParliamentarians_SP.pdf
Moreira, Vital y Gomes, Carla de Marcelino (2012). Compreender os Direitos Humanos, Coimbra, Portugal.