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Speech of Alexander Shishlov
at The 5th International Conference on Human Rights organised by Friedrich-Ebert-Stiftung

Council of Europe - The Main European Human Rights Institution

Manila. December 5, 2001

MOSCOW (AP) - Four organizers of a demonstration against a journalist's Hon. Chair, distinguished colleagues, First I would like to thank the FES for this opportunity to address such a representative audience and share my experience in the Regional European Human Rights Institution - Council of Europe.

I have been a member of the Parliamentary Assembly of the Council of Europe since Russia's accession in January 1996 and a member of its Legal Affairs and Human Rights Committee.

Let me first provide a brief overview of the composition and functioning of the Council of Europe.

Then I will provide an example of the Council of Europe's position on two very well-known issues, namely the death penalty and the fight against terrorism. Finally I will make some remarks on the current problems of the Council of Europe.

Generally speaking, any European state can become a member of the Council of Europe provided that it accepts the principle of the rule of law and guarantees human rights and fundamental freedoms to everyone under its jurisdiction. At present there are 43 member states in the Council of Europe: in other words almost all European states are member states.

But the Council of Europe is wider than human rights. Human rights may exist in a friendly environment. So the Council of Europe has wide-ranging goals. The Council of Europe is an inter-governmental organization which aims:

 - to protect human rights, pluralist democracy and the rule of law;

 - to promote awareness and encourage the development of Europe's cultural identity and diversity;

 - to seek solutions to the problems facing European society (discrimination against minorities, xenophobia, intolerance, environmental protection, human cloning, Aids, drugs, organized crime, etc.)

 - to help consolidate democratic stability in Europe by backing political, legislative and constitutional reform.

The Council of Europe covers all the major issues facing European society other than defense. Its work programme includes the following fields of activity: human rights, media, legal co-operation, social and economic questions, health, education, culture, heritage, sport, youth, local democracy and trans-border co-operation, the environment and regional planning.

The Council of Europe consists of three main parts:

 - The Committee of Ministers is the Council of Europe's decision-making body, and consists of the Foreign Ministers of the 43 member states (or their Permanent Representatives);

 - The Parliamentary Assembly is the Organization's deliberative body: its members are appointed by national parliaments;

 - The Congress of Local and Regional Authorities of Europe is a consultative body representing the local and regional authorities of the member states.

Governments, national parliaments and local and regional authorities are thus represented separately in the Council of Europe.

By granting consultative status to over 350 non-governmental organizations (NGOs), the Council of Europe is building a real partnership with the representatives of ordinary people. Through various consultation arrangements (including discussions and colloquies) it brings NGOs into inter-governmental activities and encourages dialogue between members of parliament and associations on major social issues.

Now some facts and figures about the Council of Europe.

The Council of Europe Secretariat has a permanent staff of about 1,300 drawn from the 43 member states. It is headed by a Secretary-General - currently Walter Schwimmer (Austria) who is elected for a five-year term by the Parliamentary Assembly and who coordinates and directs the Council's activities.

The council is financed by the member states commensurate to their population and resources. The budget is approximately Euro 250 million.

The Council of Europe's official languages are English and French, but the Parliamentary Assembly also uses German, Italian and Russian as working languages. Some other languages may be interpreted during debates in certain conditions.

The Parliamentary Assembly of the Council of Europe (PACE), which held its first session on August 10th, 1949, can be considered the oldest international parliamentary assembly with a pluralistic composition of democratically elected members of parliament established on the basis of an inter-governmental treaty.

PACE consists of more than 500 members (representatives and substitutes). PACE has four 5-days part-sessions every year, including a general debate and decision-making (there are two types of decisions - resolutions which express the PACE position and recommendations addressed to the Council of Ministers).

In the period between the part-sessions the main PACE body is the Bureau consisting of the leaders of the five political groups and the heads of national delegations.

The committee meetings take place during the part-sessions and in between as well. There are Committees on Political Affairs, on Legal Affairs and Human Rights, Monitoring Committee, and some others, such as Culture and Education, Refugees, Rules of Procedure etc.

The legal framework of the Council of Europe is the number of International Conventions, most importantly the European Convention on Human Rights which defines and guarantees the most important rights and freedoms and establishes a legal instrument for implementing and defending rights and freedoms.

This instrument is the European Court of Human Rights. This Court is accessible to everyone in Europe: decisions of the Court are final and binding on all member states. The Human Rights Court has special value for my country Russia as well as other new member states from Eastern and Central Europe that support democratic development.

The European Court granted the people with a mechanism for protecting their rights which is especially important to the new democracies, as the domestic judicial system is far from perfect. The Human Rights Court certainly is not perfect and currently faces a serious challenge, including the increasing number of complaints and the lack of funds.

The Parliamentary Assembly of the Council of Europe has displayed for fifty years of existence great flexibility and adaptability as an international inter-parliamentary body to the developments in Europe, and in particular to the dramatic historic changes over the past few years. No other international parliamentary forum was so well-equipped as the Parliamentary Assembly to integrate the new democracies of central and Eastern Europe into the family of the other European democracies.

One of the results of the membership in the Council of Europe is the development of national legislation to fulfill the criteria and demands of the Council of Europe. For my country for example I would mention as the most important legal changes the adoption of a new criminal code and new criminal procedural code. The council's activities in the protection of the rights of national minorities and languages of minorities are very important for Russians after the collapse of Soviet Union.

The Council of Europe has been at the forefront of the fight against the death penalty for decades, and has been very successful in this fight. Thanks to the Council of Europe, in particular, its Parliamentary Assembly, the 43 member countries have constituted a de facto death-penalty-free zone since 1997. The Council of Europe's strategy to abolish the death penalty was, and is, first and foremost a legal one, backed by political and moral pressure.

As I have already said, the European Convention on Human Rights is at the core of the Council of Europe's legal machinery. The European Convention on Human Rights did not, however, abolish the death penalty. The right to life is its first substantive article: however, in the Convention, this right is not absolute: everyone's life is protected by law and no one should be deprived of life apart from through a court sentence after conviction of a crime that carries the death penalty. After the horrors of Nazi Germany and the Second World War, most European countries were not ready to abandon the death penalty.

But the concept of Human Rights is constantly evolving. By the late 1960s, more and more European Countries abandoned the death penalty, as a violation of the most fundamental human rights: the right to life, and the right to be protected against torture, inhuman and degrading punishment. Thus, a consensus slowly began to emerge that the death penalty was unbefitting for a modern, democratic and civilized society. This development was spurred by the realization that capital punishment was an inefficient tool of the criminal justice system: it did not deter criminals, it was arbitrary (its imposition depended more on the individual's position in society than on the gravity of their crime), and it was irreversible. High-profile cases of people found innocent after their execution shocked Europeans in many countries. This is where the Council of Europe came in. Created to unite Europe around the shared principles of the rule of law, respect for human rights and pluralist democracy, the Parliamentary Assembly initiated a proposal to legally abolish the death penalty in Europe.

The result was the drafting of Protocol 6 to the European Convention on Human Rights, which abolishes the death penalty unconditionally in peacetime. The Protocol was opened for signing in 1983, and became binding on the states who ratified it a few years later. After promoting the adoption of Protocol 6, the Parliamentary Assembly was concerned to see it enforced in all European countries.

In 1994, the Assembly defined its position on the abolition of capital punishment: it considers that the death penalty has no legitimate place in the penal systems of modern civilized societies, and that its application may be compared with torture and be seen as an inhuman and degrading punishment within the meaning of Article 3 of the European Convention of Human Rights. The Assembly believes that the imposition of the death penalty has proved ineffective as a deterrent, and owing to the possible fallibility of human justice, also tragic owing to the execution of innocent people.

As a result, the willingness to institute an immediate moratorium on executions and abolish the death penalty in the long-term has since 1994 become a precondition for accession to the Council of Europe. In practical terms, this means that every country that wanted to become a member of the Council of Europe had to commit itself to immediately stop executions, and abolish the death penalty in law within one to three years.

The signature and ratification of Protocol 6 was a further condition. This gave a great boost to Protocol 6, which is now in force in 39 member countries of the Council of Europe, and has been signed by three others.

Russia has instituted the moratorium and has signed, but not ratified Protocol 6.

The Parliamentary Assembly also has a position on the death penalty in Council of Europe observer states. There are two observer states which carry on executing people: United States of America and Japan. The Assembly is taking a number of measures to convince the USA and Japan to institute a moratorium on executions and abolish the death penalty. The Council of Europe already involves the parliaments and governments of Japan and the USA in a constructive dialogue, in order to support legislators in their endeavours to institute a moratorium on executions and abolish the death penalty and to involve the opponents of abolition in an informed debate.

The Council of Europe's position on the fight against terrorism was formulated during an urgent debate at a September 2001 part-session. It asserts that action against terrorism must not undermine human rights. This approach was also expressed in a recent statement issued by Mary Robinson, the UN High Commissioner for Human Rights, Walter Schwimmer, Secretary-General of the Council of Europe, and Ambassador Gerard Stoudmann, Director of the OSCE's Office for Democratic Institutions and Human Rights. The joint statement runs: "While we recognize that the threat of terrorism requires specific measures, we call on all governments to refrain from any excessive steps which would violate fundamental freedoms and undermine legitimate dissent. "In pursuing the objective of eradication terrorism, it is essential that states strictly adhere to their international obligations to uphold human rights and fundamental freedoms". Responding to recent worrying developments in some countries, the three international human rights representatives urged all states to ensure that any measures restricting human rights in response to terrorism strike a fair balance between legitimate national security concerns and fundamental freedoms that is fully consistent with international law commitments.

Some rights may not be derogated from under any circumstances. These include the right to life, freedom of thought, conscience and religion, freedom from torture or cruel, inhuman or degrading treatment, and the principles of precision and non-retroactivity of criminal law except where a later law imposes a lighter penalty. For other rights, any derogation is only permitted in the special circumstances defined in international human rights law. The position of the Council of Europe is that the purpose of anti-terrorist measures is to protect human rights and democracy and not undermine these fundamental values of our societies.

Certainly, in some countries strong measures - particularly those which limit the human rights of certain parties - are welcomed by most of the population, as they make people feel more secure and as citizens trust and confide in their government and special services. But such confidence may not be the case for every country.

I would not be honest if I did not mention some of challenges and problems facing the Council of Europe and its Parliamentary Assembly. I would like to present the problems from my viewpoint as a Russian liberal. I regret to say for instance that in some cases, particularly concerning my country, I was slightly disappointed about the rather weak position of the Council of Europe. We have very serious problems with human rights in Chechnya. We can see evident state pressure on the freedom of the media, on independent TV in my country. However, the voice of the Council of Europe in these cases was not as strong as I would like. I can attribute such political behaviour to several factors, including the policy of double standards mentioned yesterday and policy of self interest, which seems to me to be a very widespread but foolhardy practice.

Another reason is the constitutional structure of the Council of Europe where the decisions are adopted by the Council of Ministers, which represents the governments and executives and the lack of PACE's powers to force the Council of Ministers to react. Consequently a number of politicians doubt the future of the Council of Europe. But I think that the Council of Europe has a political future owing to its high values and its experience: this experience may be interesting and useful for you, dear colleagues, who represent different Asian countries and different approaches to human rights. Thank you for your attention.

Manila. December 5, 2001

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