COMPILATION OF INTERNATIONAL NORMS
The European Union has its own legislative organs, which create rules binding on all Member States. It can be considered to constitute a distinct legal system of its own which is an integral part of the legal systems of the Member States and which their courts are bound to apply. One of the basic differences between the legal system of the European Union and international law is that Member States of the Union have transferred to it certain of their sovereign rights and legislative powers.
The Council of Europe, a regional intergovernmental organization, established the European Convention on Human Rights which entered into force in 1953, the European Court of Human Rights and the Committee of Ministers. The European Commission on Human Rights, administers the European Convention and works in conjunction with the Court of Human Rights and the Committee of Ministers of the Council of Europe. Individuals, NGO's as well as states can petition the European Commission about violations of the European Convention on Human Rights, after exhausting all domestic remedies. The European Court implements both the European Convention on Human Rights and the European Social Charter. As far as the Convention is concerned the Court primarily hears cases referred by the Commission and/or member states or individuals. As for the Charter, individuals cannot instigate the monitoring mechanism. It operates through review of government self-reporting.
The European Union's relationship with the domestic courts, are discussed below:
The member States, by accepting to be bound by the treaties, have transferred certain powers to the Community Institutions, thus suffering a loss of national autonomy. Both the Community Institutions and Member States must respect the division of competence resulting from the treaty or from secondary Community Law. The Member States shall abstain from any measure, which could jeopardise the attainment of the objectives of the Treaty and shall take any appropriate measures to ensure fulfilment of the obligations arising out of the Treaty or resulting from action taken by the institutions of the Community (article 5). The European Court of Justice has repeatedly emphasised that the fundamental principle of article 5, which implies an obligation of the Member States to implement Community Law in such a way that it receives uniform application throughout the Community and that its useful effect is ensured.
Community Law which affect the legal rights and duties of private individuals of the Member States, has direct applicability in municipal court. The supremacy of the Community Law over national law is one of the key concepts of the Community. In numerous occasions the Court has confirmed the supremacy of Community Law whether explicitlyor implicitly. Nevertheless, the Court of Justice cannot purport to apply Community Law in the Member States. It can only declare that it is applicable and their Courts must follow it.
a) The review of the legality of Community Acts: Community treaties allow the Community institutions to act in specific fields only and under several restrictions. The Court of Justice is charged with the legal review of such provisions. Whenever an act of a Community organ does not fulfil the necessary conditions the Court can annul it. Nevertheless, the right to bring an action for annulment has been restricted. If an institution is obliged to take action on the benefit of a particular person and does not act, this person can bring an action against this institution.
b) Preliminary ruling: The Court of Justice is in charge of interpreting the Community Law. In this sense the procedure of preliminary ruling promotes uniform interpretation of the Community Law within all Member States. When applying Community Law, this procedure allows national courts to meet questions of interpretation of Community Law or of validity of acts of Community institutions. In fact, national courts are supposed to make these questions when the answers are necessary in one particular case. So, the individual, unable to bring an action against regulations, may request his national court to ask a preliminary ruling on the validity of a regulation of the European Union and in this manner ensure that incorrect regulations will not be applied.
c) Actions against member states: When the European Commission or another Member State alleges than a Member State has violated the Community Law, the court of Justice may have to decide whether the allegation is well founded. The Court thus reviews the application of the Community Law by the Member States.
d) Develops a body of Community Law. The rulings of the Court are an effective way to help national courts in their daily work.
The European Commission on Human Rights is the primary body administering the European Convention for the Protection of Human Rights and Fundamental Freedoms. The European Commission is aided by the European Court of Human Rights and the Committee of Ministers. Each of these bodies may have a role in the investigation of individual or state complaints. The machinery for enforcement of human rights agreements under the European Convention is the most developed in Europe.
According to Protocol 11 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, a single permanent Court will replace the present enforcement of the Convention. This Protocol will come into force in November 1998; after this, the European Commission will no longer exist. Protocol 11 will then be entered into force. In order to be comprehensive, following are some quick reminders on the procedure before November 1998:
The European Commission on Human Rights (ECHR) as established under the European Convention on the Protection of Human Rights and Fundamental Freedoms, monitors the implementation of the Convention by States Parties. It is able to receive complaints by the State Parties (article 24) or by any person, or group of individuals or NGO who claims to be a victim of a violation of the Convention (article 25), if countries have explicitly accepted the right of individual petition. Complainants must first exhaust domestic remedies (Article 26) and must be filed within a period of six months from the date on which the final decision was made at the domestic level. The Commission examines the petition and tries to reach a friendly settlement (article 28). If a friendly settlement cannot be reached, the Commission decides whether the facts found disclose a breach by the State concerned of its obligations under the Convention (article 31). The Commission reports its findings to the Committee of Ministers (article 31 (2), (3)).
The Commission may bring the case before the European Court of Human Rights (article 48). If the Commission does not bring the case before the Court, the Committee of Ministers decides whether there has been a violation of the Convention. If the Committee decides that there has been a violation, it then prescribes a period during which the Contracting Party concerned must take the required measures according to the decision of the Committee of Ministers. If the Party concerned does not take the necessary measures within the prescribed period, the Committee of Ministers will decide the effect to be given to its original decision and shall publish the report (article 32).
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. The European Court help implement and enforce both the European Convention on Human Rights and the European Social Charter. The Social Charter was adopted and entered into in 1965 to address social and economic rights. The Social Charter was to be the Convention's counterpart with respect to such issues. Each state party agrees to be bound by at least six of nine articles specified in Part 11 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.
The European Social Charter sets out the system of supervision and enforcement, providing for both a monitoring and reporting procedure and a system of collective complaints. Under the revised supervisory system, the Committee of Experts may "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 of Experts is also charged with " assessing from a legal standpoint the compliance of national law and practice with obligations arising from the Charter..." (Article 24(2). 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".
Under the European Convention 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's decision "shall, if necessary, afford just satisfaction to the injured party" (Article 50). The Court may issue a declaration and /or award monetary damages, including costs and expenses or pecuniary and non-pecuniary damages. Decisions of the Court are legally binding.
Under the European Social Charter, a state may be chastised for failing to abide by its commitments under the charter. If the State refuses to respond, it can be expelled from the Council of Europe.
The European Court of Human Rights was set up in 1959 under the European Convention for the Protection of Human Rights and Fundamental Freedoms to ensure the observance of the engagements undertaken by Contracting States under the Convention. Under the terms of the Convention, cases submitted to the Court must have originated in an application lodged with the European Commission ofHuman Rights by a State, a person, a non-governmental organization, or a group of individuals.
After 1998, protocol 11 provided for the setting up of a single permanent Court in the place of the Commission and the Court. The new single Court will have jurisdiction to deal with both individual and inter-State applications. It will usually sit in Chambers of seven judges, but cases may be declared inadmissible by the unanimous decision of a panel of three judges. On the other hand, the Chamber may, in certain circumstances, relinquish jurisdiction in favour of a Grand Chamber of seventeen judges.
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 a Grand Chamber. A panel of five judges shall decide whether or not the case should be examined by a Grand Chamber. Final judgements are to be binding for Contracting States and their execution will be supervised by the Committee of Ministers. With this new system, for the first time, the citizens of the Member States of the Council of Europe, and the States themselves, will be able to take their complaints of human rights violations under the Convention directly before an international tribunal.
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 Council of Europe's 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 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 carriers of Human Rights.
The European Convention for the Protection of Human Rights and Fundamental Freedoms, the other major treaty of the Council of Europe, is worthy of particular mention.
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 (¼) of unsound mind ¼". 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, and in Part II, a set of articles which to a large extent correspond to the provisions in the International Covenant on Economic, Social and Cultural Rights. However, States shall 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: (¼) (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 (¼) 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 want¼". 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 Charterwill read 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 three other European instruments, a) Recommendation on the Situation of the Mentally Ill, b) Recommendation on Rehabilitation Policies for Disabledand c) Recommendation on a Coherent Policy for the Rehabilitation of People with Disabilities
The third instrument 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 instrument, which applies the right to be different to the situation of disabled persons, in particular with respect to the whole rehabilitation process.
The European Union is a regional organization 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.
Although the mandate of the organization has been expanded by the Treaty on European Union, the European Unions main concern lies in the field of economic, monetary and political issues. Accordingly, disability issues have been 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.
44. e.g.: ECJ Case "Costa versus ENEL."
45. ECJ Case 34 / 67.
46. For more information see Pentikainen / Scheinin and Bernhardt.
47. Published by the ECE in Spring 1995.
48. Adopted by the Council of Europe, 3 May 1996, not yet been entered into force.
49. EC Recommendation No. 818, adopted by the Parliamentary Assembly in 1977.
50. EC Recommendation No. 1185, adopted by the Parliamentary Assembly in 1992.
51. EC Recommendation No. (92) 6, adopted by the Parliamentary Assembly in April 1992.
52. 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.
53. Treaty of Maastricht, came into force 1993.
54. 86/379/EEC: Council recommendation of 24 July 1986 on the employment of disabled people in the Community, Official Journal of the EC No. L 225, 12/08/1986 P.0043-0047.
55. Official Journal of the EC No. C 150/270