Council of Europe: Commissioner for Human Rights

Applies to/Se aplica a

State practice
State law
Individual cases
For Urgent Action
Only under 18-s
A

Summary

The post of the Commissioner for Human Rights of the Council of Europe was created by a resolution of the Committee of Ministers of the Council of Europe on 7 May 1999.
According to the mandate, the Commissioner for Human Rights, shall, besides promoting human rights, and supporting human rights education, “identify possible shortcomings in the law and practice of member States concerning the compliance with human rights as embodied in the instruments of the Council of Europe, promote the effective implementation of these standards by member States and assist them, with their agreement, in their efforts to remedy such shortcomings”.
As part of the mandate, the Commissioner carries out visits to all member states of the Council of Europe to monitor and evaluate the human rights situation.
While according to article 1 (2) of the mandate “the Commissioner shall not take up individual complaints”, he or she can draw conclusions from human rights violations in individual cases. Part of the mandate of the Commissioner for Human Rights is to engage with Human Rights Defenders in the member states of the Council of Europe, and to meet with a broad range of defenders during his or her country visits and to report publicly on the situation of human rights defenders.
The Commissioner for Human Rights publishes opinions, reports on country visits, thematic reports, and annual reports regarding the situation of human rights in the member states of the Council of Europe.

1. Likely result from the use of this mechanism

The Commissioner for Human Rights can take up information on the violation of human rights during a country visit, or when drafting a country report. Human rights violations can also be taken up in a thematic report, e.g. on freedom of expression.

2. To which States does this mechanism apply?

The mechanisms applies to all member States of the Council of Europe. A list of member States is available at http://www.coe.int/aboutCoe/index.asp?page=47pays1europe&l=en.
Which human rights treaties and instruments are applicable depends on which instruments have been ratified by the relevant State. The most important human rights treaties are the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights – see http://conventions.coe.int/treaty/Commun/ChercheSig.asp?NT=005&CM=7&DF=0... for status of ratifications) and the European Social Charter (see http://conventions.coe.int/treaty/Commun/ChercheSig.asp?NT=035&CM=7&DF=0... for status of ratifications).

3. Who can submit information?

The Commissioner for Human Rights can receive information from anyone, but especially from human rights NGOs and from human rights defenders.

4. When to submit information?

Information can be submitted at any time. However, it is advisable to check the agenda of the Commissioner for Human Rights, and to submit information prior to a scheduled country visit, possibly at the same time requesting a meeting during the Commissioner's visit.

5. Special rules of procedure of advice for making a submission?

There are no special rules for making a submission.

It is advisable to refer to the relevant human rights instruments of the Council of Europe applicable to the State concerned when making a submission. As the mandate of the Commissioner for Human Rights does not include individual complaints, individual cases of human rights violations should mainly be used as examples to highlight patterns of human rights violations.

6. What happens to a submission (how long will it take)?

As there is no regular reporting procedure by States, there are no regular intervals for the Commissioner for Human Rights to publish reports.
For submissions made prior to a country visit, especially if they were followed up with a meeting with the Commissioner, it can be hoped that the Commissioner will take up the issues in his or her report on the country visit. Country reports and other publications of the Commissioner related to countries are available at http://www.coe.int/t/commissioner/Activities/countryreports_en.asp.
Serious situations of human rights violations might be taken up in the Annual Report or Quarterly Report of the Commissioner, or even in an Opinion. Annual and quarterly activity reports are available at http://www.coe.int/t/commissioner/WCD/annualreports_en.asp#, and Opinions of the Commissioner are available at http://www.coe.int/t/commissioner/WCD/searchOpinions_en.asp#.

Following-up

If the Commissioner for Human Rights has taken up the issue of conscientious objection, and has made recommendations, it is important to provide information on the implementation of the recommendations made to the Commissioner. The Commissioner publishes follow-up reports to country visits a few years after a country visit, and it is highly recommended to use this opportunity to highlight non-compliance with recommendations.

7. History of the use of this mechanism

Although – to our knowledge – this mechanism has not yet been used by conscientious objectors, the Commissioner for Human Rights has taken the issue on board, for example in a blog post from 2 February 2012 (see http://commissioner.cws.coe.int/tiki-view_blog_post.php?postId=205).

Contact Details: 
Office of the Commissioner for Human Rights Human Rights’ Defenders Programme Council of Europe F-67075 Strasbourg Cedex, FRANCE Fax + 33-3 90 21 50 53 Email: commissioner@coe.int

Interpretations

Title Date
Recommendation CM/Rec(2010)4 of the Committee of Ministers to member states on human rights of members of the armed forces 24/10/2010

"H. Members of the armed forces have the right to freedom of thought, conscience and religion. Any limitations on this right shall comply with the requirements of Article 9, paragraph 2 of the European Convention on Human Rights.
40. Members of the armed forces have the right to freedom of thought, conscience and religion, including the right to change religion or belief at any time. Specific limitations may be placed on the exercise of this right within the constraints of military life. Any restriction should however comply with the requirements of Article 9, paragraph 2, of the Convention. There should be no discrimination between members of the armed forces on the basis of their religion or belief.
41. For the purposes of compulsory military service, conscripts should have the right to be granted conscientious objector status and an alternative service of a civilian nature should be proposed to them.
42. Professional members of the armed forces should be able to leave the armed forces for reasons of conscience.
43. Requests by members of the armed forces to leave the armed forces for reasons of conscience should be examined within a reasonable time. Pending the examination of their requests they should be transferred to non-combat duties, where possible.
44. Any request to leave the armed forces for reasons of conscience should ultimately, where denied, be examined by an independent and impartial body.
45. Members of the armed forces having legally left the armed forces for reasons of conscience should not be subject to discrimination or to any criminal prosecution. No discrimination or prosecution should result from asking to leave the armed forces for reasons of conscience.
46. Members of the armed forces should be informed of the rights mentioned in paragraphs 41 to 45 above and the procedures available to exercise them.
"

Recognition of CO Recognised
Length/terms of service Recognised
Discrimination Recognised
Time limits Recognised
in-service objection Recognised
Repeated punishment Recognised
Recomendación 1518 (2001) 23/05/2001

The Assembly accordingly recommends that the Committee of Ministers invite those member states that have not yet done so to introduce into their legislation:
i. the right to be registered as a conscientious objector at any time: before, during or after conscription, or performance of military service;
ii. the right for permanent members of the armed forces to apply for the granting of conscientious objector status;
iii. the right for all conscripts to receive information on conscientious objector status and the means of obtaining it;
iv. genuine alternative service of a clearly civilian nature, which should be neither deterrent nor punitive in character.

Recognition of CO Recognised
Length/terms of service Recognised
Time limits Recognised
in-service objection Recognised
Recommendation No. R(87)8 of the Committee of Ministers to member states regarding conscientious objection to compulsory military service 09/04/1997

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; (…)
8. The law may also provide for the possibility of applying for and obtaining conscientious objector status in cases where the requisite conditions for conscientious objection appear during military service or periods of military training after initial service; (...)
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. Conscientious objectors performing alternative service shall not have less social and financial rights than persons performing military service. Legislative provisions or regulations which relate to the taking into account of military service for employment, career or pension purposes shall apply to alternative service.
"

Recognition of CO Recognised
in-service objection Recognised
Recommendation 816 (1977) on the right of conscientious objection to military service 06/10/1977

The Assembly,(...)
4. Recommends that the Committee of Ministers:
a. urge the governments of member states, in so far as they have not already done so, to bring their legislation into line with the principles adopted by the Assembly ;
b. introduce the right of conscientious objection to military service into the European Convention on Human Rights.

Recognition of CO Recognised
Recommendation 478 (1967) on the right of conscientious objection 26/01/1967

The Assembly,
1. Having regard to its Resolution 337 on the right of conscientious objection,
2. Recommends the Committee of Ministers:
(a) to instruct the Committee of Experts on Human Rights to formulate proposals to give effect to the principles laid down by the Assembly in its Resolution 337 by means of a Convention or a recommendation to Governments so that the right of conscientious objection may be firmly implanted in all member States of the Council of Europe ;
(b) to invite member States to bring their national legislation as closely as possible into line with the principles adopted by the Consultative Assembly.

Recognition of CO Recognised
Reports
Title Date
Annual Activity Report 2011 by Thomas Hammarberg, Commissioner for Human Rights 17/01/2012

1.2 Visits. Visit to Armenia. (…) Regarding the right to conscientious objection, the Commissioner emphasised the urgent need to develop a genuinely civilian service option in Armenia, and recom­mended the release of all conscientious objectors imprisoned because of non-performance of military service.
CommDH(2012)1

Recognition of CO Recognised
2nd Quarterly Activity Report 2011 by Thomas Hammarberg, Commissioner for Human Rights (1 April to 30 June 2011) 03/09/2011

3. Reports and continuous dialogue. Report on Armenia. (…) Regarding the right to conscientious objection, the Commissioner found that there was an urgent need to develop a genuinely civilian service option in Armenia and that all conscientious objectors who are in prison because of non-performance of military service should be released.
CommDH(2011)28

Recognition of CO Recognised
Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe Following his visit to Turkey, from 27 to 29 April 2011 12/07/2011

19. As regards cases concerning convictions for having published statements which were considered to incite abstention from com­pulsory military service, six judgments of the Court against Turkey await execution. Pursuant to Article 318 of the Criminal Code, the non-violent expression of opinions on conscientious objection is still a criminal offence, similar to the former Article 155 which gave rise to these judgments. The Court held that the fact that an article on conscientious objection was published in a newspaper was an indica­tion that it could not be considered as incitement to immediate desertion. This is in contradiction with Article 318, paragraph 2 of the Criminal Code, according to which the publication itself is an aggravating circumstance. The Commissioner is concerned by the fact that the above provision continues to be applied. He has been informed that in June 2010 four persons were sentenced by an Ankara court to imprisonment ranging from 6 to 18 months for having issued a press release in favour of a conscientious objector, Enver Aydemir.
CommDH(2011)25

Length/terms of service Recognised
Report by Thomas Hammarberg Commissioner for Human Rights of the Council of Europe following his visit to Armenia from 18 to 21 January 2011 09/05/2011

The issue of imprisoned conscientious objectors – currently, all of whom are members of the Jehovah’s Witnesses community - has been on the table for many years. Conscientious objectors are not willing to perform an alternative service option which is under the supervision of the military. There is still no alternative to military service available in Armenia which can be qualified as genuinely civilian in nature. The Commissioner strongly believes that conscientious objectors should not be imprisoned and urges the authorities to put in place an alternative civilian service.
CommDH(2011)12

Length/terms of service Recognised
Report by the Commissioner for Human Rights, Mr Thomas Hammarberg, on his visit to Azerbaijan 20/02/2008

B. Conscientious objection to military service
81. One of the commitments of Azerbaijan upon accession to the Council of Europe in 2001 was to establish an alternative to military service by 2004. To this day, such a legislative framework has not yet been shaped up. A draft law concerning an alternative to the military service was sent for review to the Council of Europe and was sent back to the authorities more than a year ago on 23 October 2006. Obviously, the general atmosphere in the wider region, a recent past of wars and atrocities and ongoing tensions with some neighbours have had the consequence that the issue has not received the treatment it deserves. The Commissioner urges a speedy adoption of a law establishing an alternative civilian service.

CommDH(2008)2

Recognition of CO Recognised
Follow-up report on the Hellenic Republic (2002-2005). Assessment of the progress made in implementing the recommendations of the Council of Europe Commissioner for Human Rights 29/03/2006

39. The Commissioner is pleased to note that the conditions of the alternative service offered to conscientious objectors in Greece have significantly improved since his visit in 2002 with the adoption of new legislation in 2004, especially as regards the length of such service. It can, however, still be subject to discussion whether an alternative service which lasts almost twice as long as the regular armed service has a punitive character or is genuinely equivalent to military service in terms of hardship and constraints. The Commissioner recommends that the Greek authorities grant conscientious objector status to persons who have already performed a military service in another country if they had no realistic possibility to refuse it or when their experience has been traumatic.
CommDH(2006)13

Length/terms of service Recognised
Follow-up report on Cyprus (2003-2005). Assessment of the progress made in implementing the recommendations of the Council of Europe Commissioner for Human Rights 29/03/2006

75. Compulsory military service for Cypriot men lasts 25 months. A new bill on conscientious objection was tabled in Parliament by the Government on 1 July 2005. The Bill foresees the reduction in the length of service for non-armed service in uniform within army precincts from 34 months to 33 months. For non-armed service without a uniform and outside army precincts, the Bill foresees a reduction from 42 to 38 months.
CommDH(2006)12

Length/terms of service Recognised
Report by Mr Alvaro Gil-Robles, The Commissioner for Human Rights, on his visit to Cyprus, 25-29 June 2003 12/02/2004

40. The term of military service is normally 26 months. Defence Act 2/92 of January 1992 recognises conscientious objection on ethical, moral, humanitarian, philosophical, political or religious grounds. However, the alternative service offered is a very long period of non-armed service; it is for either 34 months to be undergone in uniform within army precincts or for 42 months without a uniform and outside army precincts. These regulations do not correspond to the standards of the Council of Europe. (...)
CONCLUSIONS AND RECOMMENDATIONS
76. (…) - To modify the legal arrangements concerning conscientious objection and alternative service in accordance with the Recommen­dations of the Committee of Ministers in the matter; in particular, to alter the practice whereby the medical reasons for granting exemp­tion from the obligation to perform military service are recorded on the certificate of exemption
”.
CommDH(2004)2

Length/terms of service Recognised
Report by Mr Alvaro Gil-Robles, Commissioner for Human Rights, on his visit to the Hellenic Republic, 2-5 June 2002 17/07/2002

C. Conscientious objectors
17. Another issue concerns conscientious objectors. The many improvements made for some time past are certainly to be welcomed, particularly the implementation of law 2510/1977 and the recognition, in the revised Constitution, of a right to conscientious objection (Interpretative Resolution of 6 April 2001 on Article 4.6 of the Constitution); this development cannot be unrelated to the Tsirlis and Kouloumpas judgments by the European Court of Human Rights. It is nevertheless appropriate to recall Recommendation (87) 8 of the Committee of Ministers on conscientious objection to compulsory military service. I understand that since the right to conscientious objection received constitutional recognition, the reservation entered by Greece concerning this Recommendation has become void and I recall that the Recommendation stipulates inter alia that alternative service shall not be of punitive nature and that its duration shall remain within reasonable limits by comparison with military service. I find, though, that an extra term of 18 months as currently prescribed in Greece constitutes a disproportionate measure in practice, especially in the light of my information that this alternative service is often performed in a hostile atmosphere. It would be advisable to reduce the duration of alternative service to an equitable term by comparison with military service and work along the lines of recommendations from the Greek Ombudsman in order to rectify the disproportionate character of the present legislation.
18. I was informed by the counsel for the accused of the case of seven Jehovah’ s Witnesses liable to receive prison sentences on account of administrative errors, which they allegedly were not allowed to remedy subsequently, in drawing up their conscientious objector’s papers. Likewise, I was informed of criminal proceedings pending against a conscientious objector liable to a prison sentence of several years for insubordination.
In general, a custodial sentence for technical defects seems disproportionate to me. In this connection, transfer of administrative responsibilities as regards granting conscientious objector status from the Ministry of Defence to an independent civilian department would doubtless be a step in the right direction.

CommDH(2002)5

Recognition of CO Recognised
Length/terms of service Recognised
Discrimination Recognised