The Council of Europe is a regional intergovernmental organization whose main role is to strengthen democracy, human rights and the rule of law throughout its Member States of 40 countries. The Council of Europe is also active in enhancing Europe's cultural heritage in all of its diversity. Finally, it acts as a forum for examining a whole range of social problems, such as social exclusion, intolerance, the integration of migrants, the threat to private life posed by new technology, and bio-ethical issues.
The Council of Europe comprises:
More than 160 European Conventions serve as a basis for reforming and harmonising Member States' legislation. For issues that do not lend themselves to conventions, the Committee of Ministers adopts recommendations to Governments on what line of action to take.
The Council of Europe established the European Convention on Human Rights and Fundamental Freedoms, which entered into force in 1953, and is the main European human rights convention. It deals with civil and political rights, and is in that sense similar to the ICCPR. Several additional Protocols have added to its substantive and procedural provisions. The European Social Charter deals with economic and social rights.
Although these are the main European human rights conventions, the Council of Europe has adopted numerous other conventions pertaining to human rights, covering a wide range of areas including, migrant workers, torture, national minorities, and children, and gender equality.
The Council of Europe has not adopted any specific human rights instruments on disabled persons. It has to be recognised, though, that for a long time the European Social Charter was the first human rights treaty in which disabled persons were explicitly mentioned as bearers of Human Rights.
Other remarkable documents have been adopted within the machinery of the Council of Europe which are legally non-binding but worth mentioning, because they emphasise the Human Rights aspects of disability legislation and policy.
The European Convention for the Protection of Human Rights and Fundamental Freedoms is designed to protect individuals' fundamental rights and freedoms. This Convention contains the classical human rights guarantees, including the right to life (article 2), the right not to be subject to torture or to inhuman or degrading treatment or punishment (article 3), the right to liberty and security of person (article 5), and the right to respect for private and family life, home and correspondence (article 8). These rights apply to all persons, including disabled persons.
Two articles are particularly interesting in regard to disability. Indeed, according to article 5 (e), "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save the following cases and in accordance with a procedure prescribed by law: … e) the lawful detention of persons ( of unsound mind ". That means that the right to liberty and security may be restricted on grounds of mental disability. While the anti-discrimination clause of article 14 refers to sexual, racial, lingual, religious, or political discrimination, disabled persons are not explicitly mentioned. But disabled people must be contained in the formulation any other status at the end of article 14.
The European Social Charter has led to legal reforms in such areas as the family, the protection of young workers, trade union rights and social insurance. It lays down twenty-three fundamental rights. It contains in Part I, a declaration of aims which contracting states shall pursue by all appropriate means. Each state party agrees to be bound by at least six of nine articles specified in Part II of the Charter. The nine articles are: the right to work; the right to organize; the right to bargain collectively; the right of children and young persons to protection; the right to social security; the right to social and medical assistance; the right of the family to social, legal and economic protection; the right of migrant workers and their families to protection and assistance; and the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex.
Part II has a set of articles which to a large extent correspond to the provisions in the ICCPR. States can choose from a menu of obligations (10 out of the 19 articles in Part II, or 45 out of the 72 numbered paragraphs of which the 19 articles consist). Furthermore, according to article 20 (Undertakings), "Each of the Contracting Parties undertakes: ( (b) To consider itself bound by at least five of the following articles of Part II of this Charter: articles 1, 5, 6, 12, 13, 16 and 19." Regarding the issue of disability, three articles are worth mentioning: article 11 (the right to protection of health), article 13 (the right to social and medical assistance) and article 15 (the right of physically or mentally disabled persons to vocational training, rehabilitation and social resettlement). It is important to note that articles 11 and 15 are not part of the list of article 20 (b).
Articles 11 and 13 are rights applicable to all persons that may be of particular concern to disabled persons. Article 11 states that "…the Contracting Parties undertake ( 1. To remove as far as possible the causes of ill-health; 2. To provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health; 3. To prevent as far as possible epidemic, endemic and other diseases." Article 13 states that "…the contracting Parties undertake: 1. To ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts or from other sources, in particular by benefits under a social security scheme, be granted adequate assistance, and in case of sickness, the care necessitated by his condition; 2. To ensure that persons receiving such assistance shall not, for that reason, suffer from a diminution of their political or social rights; 3. To provide that everyone may receive by appropriate public or private services such advice and personal help as may be required to prevent, to remove, or to alleviate personal or family want ". Pursuant to Article 15, Contracting Parties undertake to take adequate measures for (1) the provision of training facilities for disabled persons, and (2) the placing of disabled persons in employment, such as specialised placing services, facilities for sheltered employment and measures to encourage employers to admit disabled persons to employment.
As one can see, the concept of human rights and disability as contained in the European Social Charter is based on the traditional institutional approach to disability. It has been revised in order to update and adapt the substantive contents of the Charter in order to take into account, in particular, the fundamental social changes, which have occurred since the text was adopted. The new article 15 of the Revised Charter (adopted by the Council of Europe, 3 May 1996) reads as follows:
"The right of persons with disabilities to independence, social integration and participation in the life of the community:
With a view to ensuring to persons with disabilities, irrespective of age and the nature and origin of their disabilities, the effective exercise of the right to independence, social integration and participation in the life of the community, the Parties undertake, in particular:
- to take the necessary measures to provide persons with disabilities with guidance, education and vocational training in the framework of general schemes wherever possible or, where this is not possible, through specialised bodies, public or private;
- to promote their access to employment through all measures tending to encourage employers to hire and keep in employment persons with disabilities in the ordinary working environment and to adjust the working conditions to the needs of the disabled or, where this is not possible by reason of the disability, by arranging for a creating sheltered employment according to the level of disability. In certain cases, such measures may require recourse to specialised placement and support services;
- to promote their full social integration and participation in the life of the community in particular through measures, including technical aids, aiming to overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure."
This version is more comprehensive than the previous one and is based more on a human rights approach. It will enter into force after the "…three Member States of the Council of Europe have expressed their consent to be bound by this Charter." (article K).
Beside the above mentioned norms there are several other European Council instruments that concern persons with disabilities more specifically, including:
The Recommendation on a Coherent Policy for the Rehabilitation of People with Disabilities adheres to the principle of independent living and full integration into society. This recommendation is extremely progressive in that it recognises the rights of disabled persons to be different. It is the first international/regional instrument, which applies the right to be different to the situation of disabled persons, in particular with respect to the whole rehabilitation process.
The machinery for enforcement of human rights agreements under the European Convention is the most developed in Europe and one of the most efficient human rights systems in the world.
Protocol 11 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, established a single permanent Court replacing and simplifying the previous mechanism composed of the European Commission on Human Rights and the European Court of Human Rights. The new machinery also abolished the Committee of Ministers' adjudicative role. It oversees the implementation of the European Convention on Human Rights through State and individual complaint systems. There is no periodic report mechanism for the European Convention.
The European Court of Human Rights is a judicial body composed of a number of judges equal to the number of states that are current members of the Council of Europe. There is no restriction on the number of judges of the same nationality. Judges are elected by the Parliamentary Assembly of the Council of Europe for a term of six years. Any Contracting State (State application) or individual claiming to be a victim of a violation of the Convention (individual application) may lodge directly with the Court an application alleging a breach by a State Party of one of the Convention rights. The procedure before the Court is adversarial and public. Hearings, which are held only in a minority of cases, are public, unless the Chamber decides otherwise on account of exceptional circumstances. Individual applicants may submit applications themselves, but legal representation is recommended, and even required for hearings or once an application has been declared admissible. The Council of Europe has set up a legal aid scheme for applicants who do not have sufficient means. The admissibility of each case is decided by a Chamber of seven judges or a Committee of three judges. Chambers or the Grand Chamber in serious cases decide on the merits of a case found admissible.
Decisions are taken by majority vote. Judgements of Chambers shall become final, unless a party requests, within a period of three months from the date of the judgement, that the case be referred to the Grand Chamber. A panel of five judges shall decide whether or not the case should be examined by a Grand Chamber. The Court's decision "shall, if necessary, afford just satisfaction to the injured party" (Article 50), if a state party is determined to have violated the European Convention, and if the country's domestic laws do not provide for adequate redress. The Court may thus issue a declaration and /or award monetary damages, including costs and expenses or pecuniary and non-pecuniary damages. Final judgements are legally binding for States Parties and their execution will be supervised by the Committee of Ministers.
The European Social Charter sets out its system of supervision and enforcement, providing for a monitoring and reporting procedure and a system of collective complaints. The European Committee of Social Rights is a committee of independent experts, which examines reports and decides whether the situations in the countries concerned are in conformity with the Charter. State parties are required to submit copies of their reports to "the international non-governmental organizations which have consultative status with the Council of Europe and have particular competence in the matters governed by". The Committee may also "hold, if necessary, a meeting with the representative of a Contracting Party either on its own initiative or at the request of the Contracting Party concerned"(Article 24(3)). The Committee's decisions ("conclusions") are published every year.
The 1995 Additional Protocol allows the Committee also to consider collective complaints. The Committee decides on the admissibility and merits of the case. Both the State and the organisation concerned are asked to provide written explanations and information to the Committee. A hearing, which is public, may be held at the request of one of the parties. The Committee's decision is transmitted to the Committee of Ministers and the Parliamentary Assembly, and it is made public.
The Economic Commission for Europe (ECE) is involved in the monitoring implementation of rights of disabled persons. It has published the "European Handbook for Persons with Disabilities" and is involved in projects on rehabilitation, settlement and housing of the disabled.
The European Union (EU) is a regional organisation with currently 15 democratic member States voluntarily joined by a political desire to present a united front to the great challenges of our age. These challenges include: promoting European unity, improving living and working conditions of citizens, fostering economic development, balanced trade and fair competition, reducing economic disparities between regions, helping developing countries, and preserving peace and freedom. The EU institutions and bodies are the following: the European Parliament, the Council, the Commission, the Court of Justice, the Court of Auditors, the Economic and Social Committee, the Committee of the Regions, the Central Bank of Europe and the European Investment Bank.
Although the mandate of the organisation has been expanded by the Treaty on European Union (Treaty of Maastricht), further amended by the Treaty of Amsterdam - the new Treaty for Europe (signed in 1997, entered into force in 1999) the EU's main concern lies in the field of economic, monetary and political issues. Accordingly, disability issues have been mostly dealt with as a matter of social policy, the main emphasis being in the field of employment. The Recommendation on the Employment of Disabled People in the European Community is based on the principle that disabled people have the right to equal opportunity in training and employment. The Council of the European Communities, the Commission, and the Committee of Ministers have adopted various resolutions on an appropriate policy for the rehabilitation of disabled people, in which Member States are called on to step up preventive measures to eliminate impairments, disabilities and handicaps, implement a comprehensive and co-ordinated policy of rehabilitation, and encourage the full participation of disabled people in their rehabilitation and in the life of the community. Another significant resolution was passed by the European Parliament in April 1993 following an upsurge of violence against handicapped persons (Official Journal of the EC No. C 150/270).
However, the EU has also done considerable work in the area of non-discrimination and human rights for persons with disabilities. The Council of Ministers has adopted resolutions to combat discrimination against people with disabilities in different areas of life, such as education, employment and access to information technology (See e.g. Resolution of the Council and the Ministers for Education meeting within the Council of 31 May 1990 concerning integration of children and young people with disabilities into ordinary systems of education, Resolution of the Council and of the Representatives of the Governments of the Member States meeting within the Council of 20 December 1996 on equality of opportunity for people with disabilities, Council Resolution of 17 June 1999 on equal employment opportunities for people with disabilities, Council resolution of 5 May 2003 on equal opportunities for pupils and students with disabilities in education and training, and Council Resolution on 6 February 2003 "eAccessibility" - improving the access of people with disabilities to the knowledge based society), and the European Parliament has adopted resolutions on the rights of persons with disabilities (Resolution on the rights of Disabled People, and Resolution on the human rights of disabled people). The EU also has a Disability Strategy, pursuant to the Standard Rules, and endorsed in a Resolution of the Council of Ministers in 1996. The EU works on mainstreaming disability in policy formulation.