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State of Democracy, Human Rights and the Rule of Law. Role of & Threat to Institutions

May 29th 2018

Report by the Secretary General of the Council of Europe 2018

This is the fifth annual report on the state of democracy, human rights and the rule of law in Europe by Thorbjørn Jagland, Secretary General of the Council of Europe. The five chapters look at the key building blocks of democratic security: efficient, impartial and independent judiciaries; freedom of expression; freedom of assembly and freedom of association; democratic institutions; and inclusive societies.

In line with previous editions, this report finds many good examples of Council of Europe member states carrying out reforms in line with their obligations and to the direct benefit of their citizens. The Council of Europe and the European Court of Human Rights (the Court) remain the bedrock of human rights, democracy and the rule of law in Europe. Their positive impact can be very easily taken for granted, but read this report – or others from this Organisation – and the proof is vivid and clear.

This report also brings into sharp relief the challenges facing the Council of Europe. Some of these are long-term, recurring issues. For example, the lack of enforcement of domestic judicial decisions and the excessive length of proceedings remain, together, the most frequently invoked complaint in applications before the Court.
However, there are also new and disturbing challenges at our door, namely the challenge posed by the rise of populism and how strong Europe’s checks and balances are.

Equality Bodies

p. 83: ‘Populist rhetoric has led to the development of a sense of competition for jobs and welfare resources, but also to a growing sentiment that human rights and building inclusive societies are redundant obstacles to defending nations against perceived threats. This, combined with austerity measures, has resulted in growing unpopularity of policies and measures promoting diversity and social inclusion, and in decisions to reduce budgets for such policies, for national human rights institutions and equality bodies, limiting the independence of these bodies. The strengthening of institutional mechanisms for equality, including gender equality, at national and local level and the availability of resources dedicated to their mission are critical in order to improve equality on the ground.’

p. 85: ‘National equality bodies have an important role in making the right to equality a reality. They also play a crucial role in preventing and investigating hate speech, and in implementing the anti-discrimination legislation in general.’
‘Twenty years after the adoption of its standards for equality bodies, ECRI published a new edition of its General Policy Recommendation No. 2. The implementation of these standards will help to address the subsisting shortcomings, in particular with regard to the independence and funding of equality bodies in a number of countries.’

p. 86 ‘Equality bodies are mandated to promote equality and provide assistance to people exposed to discrimination and intolerance; their mandates cover all areas of the public and private sectors. Equality bodies are independent at institutional and operational levels and are provided with the competences, powers and resources to implement all their functions effectively and with real impact. Gender equality bodies and authorities are provided with the powers, competencies and resources to implement gender equality policies, monitor and evaluate progress and co-ordinate and support gender mainstreaming activities carried out by other government departments and civil society organisations.’

p. 87: ‘In recent years, equality bodies have been established in Andorra, Liechtenstein, Monaco, Slovenia and Turkey, in some cases also with the support of Council of Europe expertise. In San Marino, which remains the only member state without an equality body covering racism, sexual orientation and gender identity, ECRI took positive note of considerations to extend the powers of the Equal Opportunities Commission to these matters. During its monitoring of equality bodies, ECRI observed a number of good practices, such as the extension of their competences and budgets and pointed out shortcomings. In a number of member states, equality bodies are not competent for both the private and public sectors; for example, equality bodies cannot work in the area of policing. In some cases, equality bodies lack core competences for efficient work, such as the competence to receive complaints, to provide legal assistance and legal representation to people exposed to discrimination and intolerance, and to bring cases of discrimination before institutions and courts (Luxembourg and Switzerland, for example). In Austria, Switzerland, Spain and Turkey, ECRI noted threats to equality bodies’ independence, and that a substantial number of bodies do not have sufficient human and financial resources to perform their tasks effectively (Slovakia and Spain, for instance).

p. 91 The role of equality bodies, threats to equality bodies
In recent years, almost all Council of Europe member states have established independent equality bodies. These bodies play an essential role in advancing equality and in assisting people exposed to discrimination and intolerance to protect and enforce their basic rights. A rich and diverse system of equality bodies has emerged and many good practices have been developed. Many equality bodies suffer from shortcomings, however, and for some their very foundations are under threat, in particular with regard to their independence and funding. Against this background, the revised ECRI General Policy Recommendation No. 2 on equality bodies to combat racism and intolerance at national level draws on best practices and contains standards to help member states further strengthen their equality bodies.

Key messages

  1. Member states should establish a strong and independent equality body.
    Equality bodies should be established by constitutional provision or parliamentary legislation. Their mandate should cover all areas in the public and private sectors. Equality bodies should be fully independent at the institutional and operational level, be a separate legal entity and work without interference from the state or political parties.
  2. Equality bodies should have the two key functions of promoting equality and assisting people exposed to discrimination and intolerance.
    Equality bodies should promote equality and prevent discrimination by conducting inquiries, pursuing research, raising awareness, supporting good practice, making recommendations and contributing to legislation and policy formation. Secondly, they should support people exposed to discrimination and intolerance by receiving their complaints, providing them with personal support, legal advice and assistance, providing recourse to conciliation procedures, providing legal representation, pursuing strategic litigation, and bringing cases before institutions and courts. In addition, equality bodies can be tasked with taking decisions on complaints of discrimination.
  3. Member states should establish the necessary framework to ensure the independence and effectiveness of equality bodies.
    Equality bodies should decide independently on their activity programme, internal structure, management of their budget, and recruitment and deployment of staff. Safeguards should be put in place to protect the independence of the persons directing the body. Equality bodies should develop a strategy for their action, update it regularly and be provided with sufficient staff and funds to carry out all their duties with real impact. They should be entitled to make statements independently. Parliaments and governments should discuss their reports and contribute to the implementation of their recommendations.’

Read the report online