Practical Impact of the Council of Europe Monitoring Mechanisms in Improving Respect for Human Rights and the Rule of Law in Member States

Practical impact of the Council of Europe monitoring mechanisms in improving respect for human rights and the rule of law in member states

Directorate General Human Rights and Rule of Law Council of Europe Directorate General Human Rights and Rule of Law Council of Europe F-67075 Strasbourg Cedex © Council of Europe 2014 Printed at the Council of Europe Contents

Foreword ...... 6 MONEYVAL ...... 14

Introduction ...... 7 Part 2: Practical examples of the impact of the Council of Europe monitoring mechanisms on Part 1: The mechanisms and organs member states...... 17 of protection ...... 8 The European Convention on Human Rights...... 17 The European Convention on Human Rights ...... 8 European Social Charter...... 28 European Social Charter ...... 9 European Convention for the Prevention of European Convention for the Prevention of Torture...... 34 Torture ...... 10 Framework Convention for the Protection of Framework Convention for the Protection of National Minorities ...... 38 National Minorities...... 10 European Charter for Regional or Minority European Charter for Regional or Minority Languages ...... 43 Languages...... 11 European Commission against Racism and European Commission against Racism and Intolerance ...... 45 Intolerance ...... 11 Council of Europe Convention on Action against Council of Europe Convention on Action against Trafficking in Human Beings – GRETA...... 47 Trafficking in Human Beings ...... 12 Council of Europe Commissioner for Human Council of Europe Commissioner for Human Rights...... 48 Rights ...... 13 Group of States against Corruption – GRECO ...... 53 Group of States against Corruption – GRECO...... 14 MONEYVAL ...... 58

οὐκ ἔστι δὲ εὐνομία τὸ εὖ κεῖσθαι τοὺς νόμους, μὴ πείθεσθαι δέ.

Good laws, if they are not obeyed, do not constitute good government.

Aristotle, Politics

5 Foreword

The foundations of a free and peaceful fessionalism and working methods suited to Europe based on solidarity remain their competence. They enable the Council of unchanged. Despite the disturbing resur- Europe to supervise the implementation of gence of nationalist rhetoric and identity- its standards, discern cases of non- based discourse, the last twenty years have compliance and propose solutions or address confirmed European citizens’ commitment recommendations to each of its member to overcoming differences and asserting their states. sense of unity, while maintaining the positive and fertile nature of their cultural diversity. At the Ministers’ Deputies’ meeting on Promoting democracy and the rule of law as 20 January 2010, the Council of Europe’s well as safeguarding human rights and fun- Secretary General, Thorbjørn Jagland, said damental freedoms forms the core of the that “the Council of Europe must be the common values that unite the Council of lighthouse of Europe, a house for early Europe’s 47 member states. They constitute warning”. The instruments for monitoring the very substance of our societies and we are human rights and rule of law forms part of determined to provide the resources and this early warning system, one that works on tools needed to achieve that goal. behalf of member states and sets out to reflect In this new European architecture, the the concerns of European citizens, with a Council of Europe strives not only to develop view to meeting the main challenges of common rules and standards, but also to modern society. establish a system for enforcing these standards by anticipating any malfunc- tioning. At the centre are several well- Philippe Boillat established specialised monitoring Director General of Human Rights mechanisms with recognised expertise, pro- and Rule of Law

6 Practical impact of the Council of Europe monitoring mechanisms Introduction

Over a period of almost sixty years, the warning and censure regarding the situation Council of Europe has made considerable of democracy and human rights in Europe. gains in the sphere of human rights, as also in They operate in complete consonance with the furtherance and safeguard of the prin- the concerns of citizens anxious to live in an ciple of the rule of law. These gains – never environment of justice and freedom securing truly gained unless we remain watchful – their rights. comprise not only norms (linked with civil This document1 describes the way in which and political rights, social rights, rights of the Council of Europe mechanisms per- minorities, action against racism, corruption, taining to human rights and rule of law have trafficking in human beings, money laun- worked towards definite improvements in dering and tax havens), but also active super- legislation, practice and the situation of indi- vision of compliance with these norms. viduals in the member states. The second This supervision is carried out by means of part of the document brings together a selec- several well-established specialised mecha- tion of recent examples of situations where nisms with working methods suited to their the Council of Europe member states have competence, and recognised expertise and taken measures to improve the position professionalism. Thanks to these mecha- regarding human rights, and also against cor- nisms, the Council of Europe is able to super- ruption and money laundering, whether vise the implementation of its standards, directly or indirectly, wholly or partially, as a discern cases of non-compliance, and result of the action of one of the Council of propose solutions or address recommenda- Europe monitoring mechanisms. tions to each of its member states. The Committee of Ministers, especially in its mission of overseeing the execution of the binding judgments of the European Court of 1 This document does not purport to be exhaustive; Human Rights, the European Commissioner the examples given merely serve to illustrate the for Human Rights, the European Committee national impact of the Council of Europe monitoring mechanisms in the sphere of human rights of Social Rights, the European Committee for and rule of law. Nor does it show the significant the Prevention of Torture, the European results achieved in the sphere of human rights and Commission against Racism and Intolerance, rule of law through activities of the classic intergov- the Advisory Committee of the Convention ernmental type leading to the adoption of reports for the Protection of National Minorities, the and legal instruments (for example treaties, recommendations, guidelines) by the Committee of Minis- Group of States against Corruption, the ters, the specific activities of the European Committee of Experts on the Evaluation of Commission for Democracy through Law (Venice Anti-Money Laundering Measures Commission), the European Committee for the Effi- (MONEYVAL), the Committee of Experts of ciency of Justice (CEPEJ), the assistance and aware- the Charter of Regional and Minority Lan- ness-raising activities intended to aid compliance with the prescribed standards, and those of other guages and the Group of Experts against Council of Europe institutions with a wider field of Trafficking in Human Beings, collectively, action, such as the Parliamentary Assembly and the most fittingly exemplify the mechanisms of Congress of Local and Regional Authorities.

Introduction 7 Part 1: The mechanisms and organs of protection

The European Convention on Human Rights All States Parties to the European Conven- ulatory measures, but often problems can be Practical tion on Human Rights (ECHR) undertake to solved through the adaptation of the examples: see secure to everyone within their jurisdiction domestic courts’ case-law, since the Court’s page 17 the rights and freedoms enshrined in the judgments enjoy a direct effect in the vast Convention, and to provide effective reme- majority of member states. Even the mere dies in case of alleged breaches. Respect of introduction of an application before the these obligations is ensured by the European Court can sometimes lead to expediting or Court of Human Rights (the Court) in accelerating the amendments to national leg- response to complaints by individuals or islation and regulations or changes in the member states. domestic courts’ case-law. When the Court finds, in its judgments, that The correct execution of each and every a violation of the Convention has occurred, judgment is supervised by the Committee of States Parties are legally bound to execute the Ministers of the Council of Europe. Even if judgments by paying the pecuniary compen- the execution sometimes encounters various sation awarded and by adopting any other practical or even political obstacles (e.g. a individual measure necessary to erase the rapid succession of governments which consequences of the violation found by the makes difficult a governmental action), the Court (for example, releasing a person execution is eventually always ensured (more placed under pre-trial detention, granting a than 15 000 cases have been before the Com- residence permit to an alien threatened by mittee for supervision of execution). expulsion, restitution of confiscated property, reunification of children with their par- The ECHR is a fundamental element of Euro- ents, etc.). This may require the possibility to pean democratic stability and constitutes a reopen the proceedings and/or review the fundamental element of the European public domestic decisions with a view to remedying order. The general acceptance of the ECHR the violations found.1 by all the European States and its compulsory supervisory mechanism in the 1990s has thus Furthermore, when the Court finds that made an essential contribution to the devel- there has been a violation of the Convention, opment of the present confidence in the this often requires the respondent state, and European relations through the development often encourages also other states, to take of a real common standard of governance in general measures to comply with the Court’s the whole of Europe, based on democracy, judgment. This can lead to legislative or reg- rule of law and respect for human rights. On several occasions, the existence of this 1 See in this context notably the Committee of Minis- ters’ Recommendation No. R (2000) 2 on the re- common standard has also contributed to examination or reopening of certain cases at finding solutions to situations of interna- domestic level following judgments of the European tional tension and developing responses to Court of Human Rights (19 January 2000, 694th crisis situations. meeting of the Ministers’ Deputies) and the judgment V.G.T.n° 2 vs. Switzerland (Grand Chamber) of The ECHR is also a fundamental element of - 30 June 2009. European co-operation and integration. The

8 Practical impact of the Council of Europe monitoring mechanisms evolving interpretation of the ECHR by the sidiarity, and authorising the domestic European Court of Human Rights and the supreme courts to address the European effective supervision of the execution of its Court with questions subject to preliminary judgments, including the taking of all legisla- ruling. The goal of these reformsare: tive and other actions necessary to remedy violations found, ensures a constant – at national level, to increase member improvement of the legal systems of member states’ awareness and respect of the ECHR states – the Committee of Ministers of the standards through several recommendations Council of Europe regularly supervises the adopted by the Committee of Ministers; implementation of several hundreds of legis- – at European level, to ensure the effective- lative and other reforms to ensure compli- ness of the supervision system by improving ance with the ECHR standard, as identified the consideration of applications and the in judgments of the Court. rapid execution of judgments. To provide answers to the challenges raised by the societal, technological or political Accepting the external supervision provided developments in Europe or by the increasing by the ECHR gives evidence of the legitimacy number of applications addressed to the of the actions of member states’ governments Court, the control system set up by the Con- in their relations with their populations – the vention constantly evolves. In the framework rights protected are effectively those of every of the recent reforms, the Protocol No. 14, individual; the execution of judgments amending the Convention, was adopted and requires ensuring full and concrete redress entered into force on 1 June 2010. Two other for the individual applicants. This accept- protocols, No. 15 and No. 16 have been since ance of external supervision also assists in drafted, underlining in particular the providing legitimacy to the member states’ national responsibility for the implementa- international actions, in particular in the tion of the Convention, the principle of sub- field of human rights.

Internet : http://www.echr.coe.int/ ; http://www.coe.int/execution/

European Social Charter The European Social Charter is the counter- conformity with the Charter of legislation Practical part to the ECHR setting out fundamental and practice in the States Parties.1 examples: see economic and social rights. Like the ECHR it page 28 The monitoring procedure of the Charter is establishes a mechanism that ensures the based on: respect of these rights by the States Parties. – national reports submitted by the States The European Committee of Social Rights Parties, (ECSR) is an independent quasi-judicial – a collective complaints procedure. body which interprets the rights enshrined in the European Social Charter and rules on the 1 There are currently 43 States Parties to the Charter.

A monitoring Every year the States Parties submit a report the Charter, the Committee of Ministers may procedure based on indicating how they implement the Charter address a recommendation to that state, national reports in law and in practice. Each report concerns asking it to change the situation in law and/or some of the accepted provisions of the in practice. Charter. The ECSR examines the reports and decides whether or not the situations in the The Committee of Ministers’ work is pre- countries concerned are in conformity with pared by a Governmental Committee com- the Charter. Its decisions, known as prising representatives of the governments of Conclusions,are published every year. the States Parties to the Charter, assisted by If a State takes no action on a ECSR’s deci- observers representing European employers’ sion to the effect that it does not comply with organisations and trade unions.

A collective Under a Protocol that entered into force in The European Committee of Social Rights complaints 1998, complaints of violations of the Charter examines the complaint and, if the formal procedure may be lodged with the European Com- requirements have been met, declares it mittee of Social Rights by national and inter- admissible before adopting a decision on the national organisations (such as trade unions, merits. employers’ organisations and international The successive reforms and substantive addi- NGOs). tions have transformed the Charter into a

European Social Charter 9 highly powerful instrument, inducing tion that takes place between the case-law of change in law and practice in such areas as the ECSR and that of the European Court of trade union rights, prohibition of children Human Rights. work, social and health cover, equality and opportunity for persons with disabilities. The nature of the measures taken by States also varies: adoption of new legislation, new The instances of States Parties bringing case law by domestic courts, administrative national situations into conformity with the measures and collective agreements by the Charter are numerous and significant. More- social partners.1 over, their number has considerably increased since the early 1990s as a result of In addition to the examples listed there are the Council of Europe’s efforts to relaunch many cases where the transposition of direc- the Charter, notably through the application tives and other Community texts co-incides of the 1991 Turin Protocol, which amended with bringing the situation into conformity the supervisory machinery of the Charter, with the Charter (a coincidence which is not and the introduction of the collective com- surprising given that much Community law plaints procedure. in the social field is based on normative prin- The examples appearing in Part 2 cover a ciples initially established by the Charter). wide variety of situations including cases Moreover, this process does not concern where states have brought the situation into exclusively the member states of the Euro- conformity following the ECSR’s conclusions pean Union, but has also a significant impact or decisions in collective complaints, or on the legislation and practice of certain non- further action by the Governmental Com- EU member states. mittee (warnings) and the Committee of Ministers (recommendations). The examples 1 A more comprehensive list of examples can be con- also give an indication of the cross-fertilisa- sulted on the Charter’s website (country factsheets). Internet: http://www.coe.int/socialcharter/

European Convention for the Prevention of Torture

The European Committee for the Prevention After each visit, the CPT sends a detailed Practical of Torture and Inhuman or Degrading Treat- report to the State concerned. This report examples: see ment or Punishment (CPT) organises visits includes the CPT's findings, and its recom- page 34 to places of detention, in order to assess how mendations, comments and requests for persons deprived of their liberty are treated. information. The CPT also requests a These places include prisons, juvenile deten- detailed response to the issues raised in its tion centres, police stations, holding centres report. These reports and responses form for immigration detainees, psychiatric hospi- part of the ongoing dialogue with the States tals, social care homes, etc. concerned. Since its creation in 1990, the CPT has CPT delegations have unlimited access to carried out almost 300 visits to all the 47 places of detention, and the right to move member states of the Council of Europe. inside such places without restriction. They The list of examples is not exhaustive and interview persons deprived of their liberty in only provides a selection of some measures private, and communicate freely with anyone taken by the States Parties following recom- who can provide information. mendations made by the CPT. Internet: http://www.cpt.coe.int/

Framework Convention for the Protection of National Minorities

The Framework Convention for the Protec- and education to discrimination and partici- Practical tion of National Minorities, which came into pation. examples: see force in 1998, now has 39 States Parties and a page 38 special monitoring agreement on implementation of the Framework Convention in 2 All reference to Kosovo, whether to the terri- 2 tory, institutions, or population, in this text Kosovo was signed between the Council of shall be understood in full compliance with Europe and UNMIK in 2004. The Conven- United Nations Security Council Resolution tion is a unique treaty aimed at advancing 1244 and without prejudice to the status of minority rights in fields ranging from media Kosovo

10 Practical impact of the Council of Europe monitoring mechanisms The Framework Convention is coupled with The monitoring process has revealed short- a dynamic monitoring mechanism, designed comings in the implementation of some to foster constructive dialogue with all the important principles in the Framework Con- parties concerned. The monitoring mecha- vention. At the same time, the dialogue initi- nism involves country visits and country- ated with the authorities and minorities has specific opinions by the Advisory Committee also produced significant advances. These have concerned not only improvements in of independent experts. These form the basis legislative and institutional terms but also for the Committee of Ministers’ targeted con- actual practices, where there has been a very clusions and recommendations. All the States direct impact on the situation of national Parties are treated on an equal footing and minorities. While not the only factor in direct dialogue between the Advisory Com- bringing about the progress recorded, the mittee and the representatives of national Framework Convention’s monitoring has in minorities and civil society is pursued during many cases played a key part in prompting the visits and follow-up activities. such improvements. Internet: http://www.coe.int/minorities/

European Charter for Regional or Minority Languages The European Charter for Regional or The Charter provides for a monitoring Practical Minority Languages is the European legal mechanism to evaluate at three-yearly inter- examples: see frame of reference for the protection and pro- vals how the treaty is applied in a State Party. page 43 motion of languages used by traditional The Committee of Experts is responsible for national and ethnic minorities. At present, carrying out this monitoring mechanism. Its the Charter has been ratified by 25 states. role is to evaluate a State Party’s compliance Another eight states have signed it. Six states with its undertakings, to recommend committed themselves to ratifying the improvements in legislation, policy and prac- Charter when acceding to the Council of tice, and to report to the Committee of Min- Europe, but have not yet done so. isters. The Charter obliges its States Parties to Once every two years, the Secretary General actively promote the use of minority lan- of the Council of Europe has to present to the guages in virtually all domains of public life: Parliamentary Assembly a detailed report on education, courts, administration, media, the application of the Charter. This ensures culture, economic and social life, and trans- that the members of the 47 parliaments of frontier co-operation. Within its scope are Greater Europe are kept informed about the the languages traditionally used within a application of the Charter, enabling them to state’s territory, but it does not cover those bring political pressure to bear if necessary to connected with recent migratory movements encourage national governments to take or dialects of the official language. appropriate measures. Internet: http//www.coe.int/minlang

European Commission against Racism and Intolerance The European Commission against Racism appointed on the basis of their moral Practical and Intolerance (ECRI) is a Council of authority and recognised expertise. examples: see Europe human rights body entrusted with page 45 ECRI, in accordance with its statute, carries combating racism1, racial discrimination2, out country monitoring activities, dealing xenophobia, antisemitism and intolerance. It with all member states of the Council of is composed of independent members Europe on an equal footing. This part of its work is conducted in five-year cycles, nine or 1 According to General Policy Recommendation ten countries being covered every year. The (GPR) No. 7 racism means the belief that a ground such as “race”, colour, language, religion, nationality country reports are drafted following careful or national or ethnic origin justifies contempt for a analysis of background information and a person or a group of persons or the notion of superi- contact visit. Before their publication ECRI ority of a person or a group of persons. engages in confidential dialogue with the 2 According to GPR No. 7 racial discrimination is any national authorities. Each report contains an differential treatment based on a ground such as “race”, colour, language, religion, nationality or analysis of the situation in the State con- national or ethnic origin, which has no objective and cerned and recommendations to its Govern- reasonable justification. ment on how to tackle the problems identi-

European Charter for Regional or Minority Languages 11 fied. ECRI’s 5th round of country monitoring problems and, taken as a whole, highlight the work (2013-2018) focuses on four topics main trends in Europe. Some of the phe- common for all member States and a number nomena identified call for concerted action of topics specific to each one of them. The and ECRI develops proposals for adequate four common topics are legislative issues, responses in its general policy recommenda- hate speech, violence and integration poli- tions. Information, awareness raising activi- cies. Issues concerning lesbian, gay, bisexual ties and close collaboration with national and transsexual persons (LGBT) are specialised bodies1 help with the implemen- addressed where they occur under topics tation of the general and country-specific such as hate speech or violence. In the frame- recommendations. Acknowledging that work of the interim follow-up procedure problems exist is an essential precondition ECRI requests priority implementation of for combating racism and intolerance effec- two specific recommendations within two tively. Thanks to ECRI, it is clear today that years. The two other statutory activities of these phenomena occur throughout Europe, ECRI are the drawing up of general policy not only in their most extreme and serious recommendations addressed to all member forms, but also in everyday life, presenting states (containing guidelines for national major and sometimes insurmountable obsta- strategies, policies and legislation) and the cles for many individuals. development of relations with civil society (information and awareness-raising activi- 1 Independent authorities whose mandate includes ties).The three aspects of ECRI’s work are the fight against discrimination on grounds such as closely linked and interdependent. The “race”, colour, language, religion, citizenship and country reports bring to light particular national or ethnic origin. Internet: http://www.coe.int/ecri/

Council of Europe Convention on Action against Trafficking in Human Beings

The Council of Europe Convention on GRETA is the only independent human Practical Action against Trafficking in Human Beings rights monitoring mechanism in the field of examples: see [CETS No. 197] (hereinafter: “the Conven- action against trafficking in human beings page 47 tion”) was opened for signature in Warsaw on set up by an international legally binding 16 May 2005 and entered into force on 1 Feb- instrument. GRETA is responsible for moni- ruary 2008. toring implementation of the Convention by This Convention is considered to be one of the Parties and, to that end, adopts reports the Council of Europe’s most important evaluating the measures taken by the parties achievements in its 60 years of existence and to implement the Convention. Those Parties the most important human rights treaty of which do not fully respect the measures con- the last decade. The first European treaty in tained in the Convention will be required to this field, it is a comprehensive instrument step up their action. On the basis of the focusing mainly on the protection of victims GRETA report and conclusions on a given of trafficking and the safeguarding of their party, the Committee of the Parties may rights. It also aims to prevent trafficking and adopt recommendations addressed to that to prosecute traffickers. The Convention is party on measures to be taken in order to not restricted to member states; non- implement GRETA’s conclusions. member states and the European Union also Pursuant to Article 38 of the Convention, have the possibility of becoming party to the GRETA evaluates the parties’ implementa- Convention. tion of the Convention following a procedure The monitoring mechanism of the Conven- divided into rounds. For each round, Greta tion consists of two pillars: the Group of selects the specific provisions on which the Experts on Action against Trafficking in evaluation procedure will be based. Further- Human Beings (GRETA), a technical body, more, it may adopt a questionnaire on the composed of independent and highly quali- parties’ implementation of the provisions fied experts, and the Committee of the Par- concerned. On the basis of the information ties, a more political body, composed of the gathered from a party’s reply to the question- representatives in the Committee of Minis- naire and other information, including infor- ters of the Parties to the Convention and of mation obtained by GRETA from civil representatives of Parties non-members of society or through a visit by a GRETA dele- the Council of Europe. gation to the country concerned, GRETA

12 Practical impact of the Council of Europe monitoring mechanisms prepares a draft report containing its analysis started up in February 2010 with the sending concerning the implementation of the provi- of the questionnaire to the first ten countries sions on which the evaluation is based, as to become parties to the Convention, which well as its suggestions and proposals con- must reply by 1 September 2010 at the latest. cerning the way in which the Party concerned may deal with the problems which The Convention’s effectiveness is measured have been identified. This draft report is sub- in terms of the effectiveness of its monitoring mitted to the party concerned for comment, mechanism. The mechanism provided for in and GRETA adopts the final report, taking the Convention, and in particular GRETA’s those comments into account. independent expertise, is one of its strong GRETA has decided that the first evaluation points and it is certain that GRETA’s first round will last four years, from the beginning reports and conclusions, due in 2011, will of 2010 to the end of 2013. For the first eval- have a real impact in the area of action uation round, GRETA has selected conven- against trafficking in human beings, not only tion provisions that will provide an overview for the country directly concerned but also of implementation of the Convention by each for all the countries and players involved in of the parties. The first evaluation round combating this scourge.

Internet: http://www.coe.int/trafficking

Council of Europe Commissioner for Human Rights

The Commissioner for Human Rights is an documents regarding specific human rights Practical independent and impartial non-judicial issues. The Commissioner also promotes examples: see institution within the Council of Europe, awareness of human rights in Council of page 48 mandated to promote awareness of and Europe member states by organising and respect for human rights in the 47 member taking part in seminars and events on various states. The Office of the Commissioner for human rights themes. He further contributes Human Rights was established in 1999 (Res- to the debate and the reflection on current olution (99) 50). The activities of the Com- and important human rights matters through missioner focus on three major, closely- the publication of periodic articles and Issue related areas: a system of country visits and Papers. dialogue with national authorities and civil The Commissioner pays specific attention to society; thematic reporting and advising on the defence of human rights and engages in the systematic implementation of human close co-operation with national human rights; and awareness-raising activities. rights structures. The Commissioner carries out visits to Since the entry into force of Protocol No. 14 member states to monitor and evaluate the to the European Convention on Human human rights situation. These are focused Rights, the Commissioner has the right to visits for defining key problems and issuing intervene ex officio as a third party in the precise recommendations. In the course of Court’s proceedings, by submitting written the visits, he meets with the highest repre- comments and taking part in hearings. sentatives of government, parliament, the judiciary, civil society and national human The Commissioner’s activity also contributes rights structures. He also talks to ordinary to the early solution of emerging crises or to people with human rights concerns, and post-conflict reconstruction efforts. visits places of human rights relevance, The Commissioner’s status as an inde- including prisons, psychiatric hospitals, pendent institution within the Council of centres for asylum seekers, schools, orphan- Europe allows him a unique flexibility to ages and settlements populated by vulnerable work with other institutions, including groups. Further to the visits, country-specific human rights monitoring mechanisms and reports are published and the implementa- intergovernmental and parliamentary com- tion of the recommendations is monitored as mittees. The Commissioner co-operates with part of an ongoing, balanced dialogue with all of the Council of Europe bodies and with all member states. a broad range of international institutions, In order to provide advice and information most importantly the United Nations and its on the protection of human rights and the specialised offices, the European Union and prevention of violations, the Commissioner the Organisation for Security and Co-opera- may release opinions and other thematic tion in Europe (OSCE).

Internet: http://www.commissioner.coe.int/

Council of Europe Commissioner for Human Rights 13 Group of States against Corruption – GRECO The Group of States against Corruption sible obstacles in the fight against corruption, Practical (GRECO) was established in 1999 as a partial the protection of individuals who report their examples: see agreement by 17 Council of Europe member suspicions of corruption internally to page 53 States. Currently, GRECO – which is open responsible persons or externally to authori- not only to member States of the Council of ties (“whistleblowers”), the confiscation of Europe – comprises 49 members (48 Euro- corruption proceeds, the transparency of pean countries and the USA). All European financing of political parties and election Union Member States have joined GRECO. campaigns and the incriminations of corrup- The number of member States is likely to tion. grow further in the future. The approach applied by GRECO is widely GRECO’s objective is to improve the capacity accepted as exemplary: GRECO’s modus of its members to fight corruption by moni- operandi, its expert appraisals of the anti-cor- toring – through mutual evaluation and peer ruption policies of its members, the con- pressure – their compliance with Council of structive nature of its country-specific rec- Europe anti-corruption instruments, ommendations and the impact assessment including the Twenty Guiding Principles for designed to appraise their implementation the fight against corruption and the Criminal are considered to be model elements of a suc- and Civil Law Conventions on Corruption. cessful monitoring mechanism. Close coop- GRECO thus helps to identify shortcomings eration with other international key players, in national anti-corruption policies, laws and such as the United Nations and the OECD – regulations as well as institutional set-ups who enjoy observer status with GRECO – as with a view to prompting the necessary well as the relevant bodies of the European reforms. Union, is given high priority in order to GRECO’s monitoring comprises an evalua- further enhance the effectiveness of the tion procedure which is based on on-site Council of Europe’s anti-corruption endeav- visits and followed up by an impact assess- ours and to avoid overlap and duplication. ment (“compliance procedure”) designed to The work carried out by GRECO for almost appraise the measures taken by its members 15 years has led to the adoption of a consid- to implement the recommendations ema- erable number of reports that contain a tre- nating from country evaluations. mendous wealth of factual information on The current Fourth Evaluation Round, anti-corruption policies in Europe and the launched on 1 January 2012, is devoted to the United States, with a focus on both achieve- prevention of corruption in respect of parliaments and shortcomings. These reports evi- mentarians, judges and prosecutors. In its dence the undeniable progress made by previous three rounds, GRECO dealt with a many of GRECO’s members in the fight wide range of issues, such as anti-corruption against corruption. Examples of achieve- bodies, immunities of public officials as pos- ments are presented. Internet: http://www.coe.int/greco/

MONEYVAL Money laundering (ML) directly threatens In 1997, the Council of Europe established Practical the rule of law. It provides organised crime the Committee of Experts on the Evaluation of examples: see with its cash flow and investment capital, and Anti-Money Laundering Measures (PC-R- page 53 the incentive to commit more proceeds-gen- EV) as an anti-money laundering evaluation erating crime nationally and transnationally. and peer pressure mechanism, subsequently Fighting money laundering effectively is re-named MONEYVAL. After 9/11, MON- crucial in the fight against organised crime EYVAL’s statute was revised by the Com- and corruption. In today’s globalised mittee of Ministers to include compliance economy, the proceeds of crimes committed with the relevant standards on terrorist in one country can easily be moved to other financing (FT), as some of the techniques countries where criminals perceive the which apply to money laundering are also defences against money laundering may be relevant in identifying terrorist financing. weaker. In the fight against money laun- MONEYVAL is chiefly responsible for the dering and acquisitive crime, the global com- assessment of those Council of Europe munity is therefore as strong as its weakest Member States that are not members of the links. Financial Action Task Force (FATF – set up by the G7 in 1989 to be a global standard-

14 Practical impact of the Council of Europe monitoring mechanisms setter in this area). In 2006, MONEYVAL ment bodies, also evaluates against the Direc- became an Associate Member of the FATF tive on the prevention of the use of the finan- and is now a leading and well-respected cial system for the purpose of money partner in the global network of anti-money laundering and terrorist financing4 and its laundering and combatting the financing of implementing measures. In MONEYVAL’s 5th terrorism (AML/CFT) assessment bodies. round (preparations for which begin in Currently, 28 Council of Europe Member 2014), MONEYVAL will evaluate on 2012 States are evaluated by MONEYVAL. In revised 40 Recommendations of the FATF addition, the Committee of Ministers and the accompanying 2013 Methodology. accepted the applications of the State of Israel Depending on the level of compliance identi- (2006) and the Holy See (including the fied in the report, jurisdictions can be sub- Vatican City State), in 2011, to join MON- jected to a range of follow-up processes, sup- EYVAL’s statute and both have since been plemented by MONEYVAL’s Compliance evaluated by MONEYVAL. In 2012, the UK Enhancing Procedures, which allow for the Crown Dependencies of Jersey, Guernsey imposition of a graduated series of steps to and the Isle of Man became subject to MON- ensure compliance with and implementation EYVAL evaluations and have all undergone of international standards by MONEYVAL progress reports and two of the Crown States and territories. Such measures have Dependencies (Jersey and Guernsey) will been used by MONEYVAL over four rounds undergo evaluation in 2014. – in three cases leading to high-level mis- MONEYVAL’s objective is to improve the sions explaining to the highest levels of gov- capacities of its States and territories to ernment the importance for the international defend themselves, the international com- community of effective AML/CFT meas- munity and the global financial system ures5. In one case, in Azerbaijan, MON- against the threats from money laundering EYVAL also issued public statements about and terrorist financing. This is achieved the risks the country then presented to the through rigorous cycles of mutual evalua- global financial system. After this step was tions and regular country-by-country follow- taken, the authorities responded very posi- up processes for deficiencies identified in tively and enacted strong preventive legisla- MONEYVAL reports. tion. MONEYVAL evaluates the implementation The economic crisis, which began in 2008, of relevant AML/CFT legal, financial and law has underlined the need for strong AML/ enforcement measures in place in its jurisdic- CFT regimes globally. In April 2009, the G20 tions. Subsequent reports are detailed and leaders agreed to take action against non- contain specific deliverables in the form of cooperative jurisdictions and called on the ratings on compliance and effectiveness of FATF to “revise and reinvigorate” the review implementation for each of the 40+9 Recom- process for assessing compliance by jurisdic- mendations of the FATF. Reports also include tions; MONEYVAL is actively contributing action plans for necessary improvements. to the FATF’s response. MONEYVAL also co- MONEYVAL is currently concluding its 4th round of evaluation visits following up 1The UN Convention against Transnational Organ- progress on the major international stand- ized Crime (UNTOC, or Palermo Convention) is a ards and in particular areas where the State or 2000 multilateral treaty adopted by the UN General rd Assembly on 15 November 2000. It has three proto- territory received low ratings in the 3 cols: the Protocol to Prevent, Suppress and Punish rd th round. MONEYVAL’s 3 and 4 evaluation Trafficking in Persons, especially Women and Chil- rounds are based on the “Common AML/ dren, the Protocol against the Smuggling of Migrants CFT Methodology”, agreed in 2004 between by Land, Sea and Air, and the Protocol against the MONEYVAL, the FATF, the International Illicit Manufacturing and Trafficking in Firearms. 2The UN Terrorist Financing Convention is a 1999 Monetary Fund (IMF) and the World Bank. treaty designed to criminalise acts of financing ter- The 2004 Methodology was grounded in the rorist activities and to promote police and judicial major international AML/CFT standards, co-operation. including the 40+9 FATF Recommendations 3The UN Convention Against Illicit Traffic in Narcotic and Special Recommendations of 2003, the Drugs and Psychotropic Substances of 1988 (Vienna 1 Convention) is one of three major drug control trea- Palermo Convention , the Terrorist ties currently in force and provides additional legal 2 Financing Convention , the 1990 Council of mechanisms for enforcing the 1961 Single Conven- Europe Convention on Laundering, Search, tion on Narcotic Drugs and the 1971 Convention on Seizure and Confiscation of the Proceeds from Psychotropic Substances. 4 European Parliament and Council Directive 2005/ Crime (CETS no.141) and the Vienna Con- rd 3 60/EC of 26 October 2005, also known as the 3 EU vention . Additionally, as a specifically Euro- Directive pean monitoring mechanism, MONEYVAL, 5 A fourth high level mission will take place early in uniquely among the global AML/CFT assess- 2014 to a MONEYVAL State or territory

MONEYVAL 15 chairs the Europe/Eurasia Regional Review All MONEYVAL reports automatically Group (ERRG), which is taking forward this become public documents and are published issue in respect of relevant European juris- on the MONEYVAL website. dictions, whether they are evaluated by FATF, MONEYVAL or other bodies. Internet: http://www.coe.int/Moneyval/

16 Practical impact of the Council of Europe monitoring mechanisms Part 2: Practical examples of the impact of the Council of Europe monitoring mechanisms on member states

The European Convention on Human Rights

In addition to offering redress to applicants when a violation has been established by the Court, respondent states must also adopt general measures, when the judgment reveals a structural problem (Article 46).1 The examples below are in no way exhaustive and are intended only to give an idea of the impact of the judgments of the Court. The measures taken are presented in detail in the final resolutions adopted or, as regards cases still pending for examination before the Committee of Ministers, in the annotated agenda of the “human rights” meetings of the Com- mittee of Ministers. Additionally, since 2007 the Committee of Ministers has published annual reports presenting, inter alia, a thematic selection of the cases examined during the year.

Statistics on the execution of judgments of the European Court of Human Rights

New cases which became final between 1st Cases closed by the adoption of a final January and 31 December 2012 resolution in 2012

These graphs show, respectively, the develop- of Ministers, as well as cases where the exam- ment since 2010 of the number of new cases ination was closed by the adoption of a final submitted for supervision by the Committee resolution.

Examples of general measures adopted following judgments of the European Court of Human Rights

Albania Reform of the bailiff system, with a view to 13 November 2007, final on 2 June 2008 – ensuring effective implementation of judicial examination under way). decisions (Qufaj Co. Sh. P.K., application Improvement of the legal protection of chil- No. 54268/00, CM/ResDH(2011)86). dren in case of kidnapping by a parent (Bajrami, application No. 35853/04, judg- The provisions which allowed the quashing ment of 12 December 2006, final on 12 March of final judicial decisions have been repealed 2007, revised on 18 December 2007, final on (Driza, application No. 33771/02, judgment of 18 March 2008 – examination under way).

Andorra Extension of the right of constitutional requiring the agreement of the public prose- appeal, which can now be filed without cutor (Millan i Tornes, ResDH(1999)721).

1 For each example, the name of the judgment following which legislative or case-law changes occurred and, where appropriate, the references of the case itself or those of the Committee of Ministers resolutions in which they are acknowledged have been indicated.

Part 2: Practical examples of the impact of the Council of Europe monitoring mechanisms on member states 17 Armenia Adoption of a new law regulating the proce- Introduction in the broadcasting law of the dure for holding assemblies, rallies, street obligation to give proper reasons for all deci- processions and demonstrations (Mkrtchyan, sions to select a licence-holder, refuse a ResDH(2008)2). licence or invalidate a licence (Meltex Ltd and Mesrop Movsesyan, 32283/04, CM/ ResDH(2011)39).

Austria Legislative reform in Austria aiming at pro- to hold an oral, public hearing only if the hibiting aliens’ expulsion to countries where persons involved have explicitly waived their they would risk being subjected to inhuman right thereto (A.T., CM/ResDH(2007)76). or degrading treatments (Ahmed, ResDH(2002)99). The Electoral Code has been amended in Liberalisation of broadcasting (Informations- June 2011, and an additional safeguard incor- verein Lentia and others, ResDH(1998)142). porated into the Code of Criminal Proce- Adoption of a new Media Act, providing, dure, stipulating that disenfranchisement of a inter alia, that in criminal proceedings initi- prisoner is to be decided upon in the crim- ated under this Act, the court may choose not inal judgment (Frodl, CM/ResDH(2011)91).

Azerbaijan Introduction in the law of explicit deadlines Training measures for prosecutors, investiga- for the registration of legal entities (Rama- tors, police officers and judges aimed at zanova, application No. 44363/02, judgment prevent torture and inhuman and degrading of 1 February 2007, final on 1 May 2007 – treatments (Mammadov, application examination under way). No. 34445/04, judgment of 11 January 2007, final on 11 April 2007 – examination under way).

Belgium Legislative reform aiming at eliminating dis- detention on remand (Bernaerts, criminations which existed in Belgian inher- ResDH(1995)104). itance law based on marital status or which Introduction of the possibility to re-open affected children born out of wedlock criminal proceedings following a violation of (Marckx, ResDH(1988)3). the European Convention on Human Rights Change of the practice of the Belgian Court (Goktepe, CM/ResDH(2009)65). of Cassation concerning the interpretation of New law on the protection of journalistic the provisions of the criminal procedure sources as regards searches or seizures (Ernst code regulating the requests for release from et autres, CM/ResDH(2010)39).

Bosnia- Strengthening of sanctions in case of non- Amendments to the Pension and Disability Herzegovina respect by a parent of the custody rights of Insurance Law entered into force in June the other parent, setting-up of measures 2012, providing that individuals internally aimed at ensuring the enforcement of rights displaced to the Republika Srpska during the in these cases as well as at protecting the child war, and who had returned to the Federation (Šobota-Gajić, application No. 27966/06, of Bosnia and Herzegovina, are eligible to judgment of 6 November 2007, final on 6 Feb- apply to the Federation of Bosnia and Herze- ruary 2008 – examination in principle closed). govina Fund Pension (Sekerović et Pasalić and other similar cases, CM/ ResDH(2012)148).

Bulgaria Decriminalisation of conscientious objection chiatric confinement (Varbanov, CM/ and introduction of alternative service to ResDH(2010)40). military obligations (Stefanov, ResDH(2004)32). Instructions have been drafted for the inves- Adoption of a new law on religious denomi- tigatory bodies, indicating that they must nations, allowing the registrations of collect evidence concerning the psycholog- Jehovah’s Witnesses as a legal entity (Lotter ical conditions of the victims in rape cases, in and Lotter, ResDH(2009)62). conformity with the principles stemming Adoption of a new Health Act, according to from the European Court’s case-law (M.C., which only a court is competent to order psy- CM/ResDH(2011)3).

Croatia Legislative reform introducing a domestic measures aimed at preventing excessive remedy against excessive length of proceed- length of civil proceedings (Horvat, ings and adoption of legislative and other ResDH(2005)60).

18 Practical impact of the Council of Europe monitoring mechanisms Adoption of a new Family Act, specifically tions into hate crimes and implementation of providing for means to establish paternity a training programme aimed at improving rapidly in cases where the putative father prevention of hate crimes by raising police refuses to co-operate in the proceedings officers’ awareness in this respect (Šečić, (Mikulic, CM/ResDH(2006)69). application No. 40116/02, judgment of 31 May Introduction of “hate crime” into the Crim- 2007, final on 31 August 2007 – examination inal code, establishment of a special police under way). division, in charge, inter alia, of investiga-

Cyprus New legislation giving effect to the right to Cypriot nationals of Turkish origins habitu- vote and to be elected in parliamentary, ally residing in the Republic of Cyprus (Aziz, municipal and community elections to CM/ResDH(2007)77).

Czech Republic Constitutional Court’s public undertaking to tional appeals and adoption of a law on respect the European Court’s judgments and extraordinary appeals (Soudek, fully take them into account when inter- ResDH(2007)31). preting the Constitution and the Convention, Introduction of an obligation for courts to so as to avoid violations, notably as regards decide on an application for release from fairness of civil proceedings (Krčmář and detention no later than within five working others, ResDH(2001)154). days (Singh, ResDH(2007)119). Change of case-law by the Supreme Court, Introduction in the code of criminal proce- defining the circumstances in which first dure of provisions on the use of lists of tele- instance courts are obliged to hold oral hear- phone calls in the context of criminal investi- ings to examine requests for the declaration gations as well as the recording of of bankruptcy and subsequent adoption of a conversations by means of listening devices new law on bankruptcy (Exel, CM/ concealed on people’s bodies (Heglas, appli- ResDH(2006)71). cation No. 5935/02, judgment of 1 March Change of practice by the Constitutional 2007, final on 9 July 2007 – examination in Court as regards admissibility of constitu- principle closed).

Denmark Adaptation of the practice followed by the Legislative extension of the negative freedom Danish courts concerning civil cases in order of association, i.e. the right not to be a to ensure a better supervision of the compli- member of a trade union (Sørensen and Ras- ance with the reasonable time requirement mussen, CM/ResDH(2007)6). (A. and others, Resolution DH (1996)606).

Estonia Setting up of a programme to build new Introduction of a new Code of criminal pro- prisons and extensively renovate existing cedure, establishing time-limits to pre-trial ones. Pending the completion of the pro- detention, setting up a mechanism whereby gramme, introduction of temporary meas- the lawfulness of such detention can be regu- ures to improve the standard of arrest houses. larly verified and fixing time-limits to decide Introduction of a complaint mechanism about the lawfulness of the detention against ill-treatment in detention (Alver, CM/ (Sulaoja and Pihlak, CM/ResDH(2007)33). ResDH(2007)32).

Finland Reform of the Child Welfare Act, regulating Adoption of an Act on the Exercise of in more detail, inter alia, contacts between Freedom of Expression in Mass Media, clari- children placed in foster care and their fying certain provisions on publications and parents and implementation of a child their relationship with the Coercive Meas- welfare promotion training programme for ures Act (Goussev and Marenk, CM/ Social Affairs staff (K.A., CM/ ResDH(2007)36). ResDH(2007)34).

France Change of the national practice concerning mate and adulterine children (Mazurek, CM/ the possibility, for transsexuals, to have their ResDH(2005)25). new sexual identity reflected in their civil Reforms aimed at avoiding the excessive status (B., ResDH(1993)52). length of pre-trial investigation stage in par- Change of case-law, followed by legislative ticular and the excessive length of criminal amendment, setting aside the difference of proceedings in general and introduction of treatment as regards heritage between legiti- an effective domestic remedy to complain

The European Convention on Human Rights 19 against such length (Etcheveste and Bidart, Amendment of the Criminal Code in March CM/ResDH(2007)39). 2003 to establish a presumption of vulnera- bility for minors in case of servitude, and The Aliens Act of May 1998 abolished the providing an aggravation of the penalty. The nationality requirement as regards allowance Law of November 2007 enacted as criminal for disabled adults (Koua Poirrez,CM/ offence the traffic in human beings (Siliadin, ResDH(2010)99). CM/ResDH(2011)210)

Georgia Demolition of an insanitary prison, replaced Repeal of the Penal Code provision which by a more modern establishment with better used to allow the imposition of a pre-trial amenities, and preparation of a plan of action detention measure according to the serious- for treating infectious diseases during deten- ness of the charge, and introduction of a new tion (Ghavtadze, application No. 23204/07, clause to the effect that a pre-trial detention judgment of 3 March 2009, final on 3/06/2009 measure may be ordered only where its aims – examination under way). cannot be achieved by a less stringent measure (Patsouria, CM/ResDH(2011)105).

Germany Reform of the Court Costs Act and the Code The Act on Legal Redress for Excessive Length of Criminal Procedure to the effect that, in of Court Proceedings and of Criminal Investi- criminal proceedings or in court proceedings gation Proceedings came into force one year under the Regulatory Offences Act, interpre- after the pilot judgment became final ,on 3 tation costs are payable by an accused or December 2011, ensuring an effective other person concerned who does not under- remedy in this respect (Rumpf and 70 others, stand German only if these costs are imposed CM/ResDH(2013)244). on him by the court on the grounds that he incurred them unnecessarily by his own default or in another culpable manner The applicant, born out of wedlock in 1948 in (Öztürk, ResDH(1989)31). the former “German Democratic Republic”, Change of court practice regarding publica- was prevented to assert her inheritance rights tion of photos of public figures in order to vis-à-vis her late father, resident in the balance public and private interests more sat- Federal Republic of Germany. The Code of isfactorily (Von Hannover, ResDH(2007)124). Civil Procedure and the Fiscal Code have Amendment of the Family Benefits Act to been amended by the ”Second Act for equal eliminate points of discriminatory treatment inheritance rights for children born outside as between different categories of foreigners of marriage” entered into force in April 2011 (Niedzwiecki, application No. 58453/00, judg- and applicable retroactively to all cases of ment of 17 October 2005, final on 15 February succession following the date of the Court’s 2006 – examination in principle closed). decision (Brauer, CM/ResDH(2012)83)

Greece Change of the national practice concerning judicial decisions and allowing compulsory the offence of “proselytism” (Kokkinakis, execution of judgments against the state, ResDH(1997)576). local authorities and legal entities of public Constitutional amendment and insertion of law (Hornsby and others, ResDH(2004)81). an interpretative clause to Article 4§6 of the Greek Constitution)providing for the possi- Legislation in 2012 amended the Code of bility of alternative service within or outside Criminal Procedure which now stipulates the arm forces by those having substantiated that a witness appearing before a criminal conscientious objection to performing court can, at his discretion and without other armed or military duties in general (Thlim- formalities, choose between taking a reli- menos, ResDH(2005)89). gious oath and making a solemn declaration Constitutional reform reinforcing the (Dimitras and others, Dimitras and others administration’s obligation to comply with all n° 2, CM/ResDH(2012)184)

Hungary Adoption of measures (order of the Minister Introduction of the principle of adversarial of Justice and circular addressed to directors proceedings where the extension of deten- of prisons)which exempt all correspondence tion on remand is considered (Osvath, between prisoners and their lawyers or inter- ResDH(2008)74). national organisations from monitoring (Sarkozi, ResDH(1998)201).

20 Practical impact of the Council of Europe monitoring mechanisms Iceland Abolition of the stipulation of membership of taxi business (Sigurdur Sigurjonsson, a specific trade union in order to operate a ResDH(1995)36).

Ireland Reform of the criminal laws punishing Reform of the Status of Children Act homosexual acts in Ireland (Norris, ensuring equal rights for all children, ResDH(1993)62). whether born in or out of wedlock (Johnston, ResDH(1988)11).

Italy Legislative reform aiming at preventing arbi- proceedings only with the consent of the trary monitoring of prisoners’ correspond- accused person (Lucà, CM/ResDH(2005)86). ence (Diana, ResDH(2005)55). A new law entered into force in 2007 to pre- scribe new rules for the adoption of minors, Constitutional and legislative amendments, including an “adoptability declaration” pro- providing that statements made in a non- cedure for the parents (Todorova, (CM/ adversarial context may be used in criminal ResDH(2010)172)

Latvia Reform of the Law on Election to Parliament bility of family visits for persons on remand and deletion of the provisions requiring (Lavents, ResDH(2009)131). higher proficiency in Latvian language for all Repeal by the Constitutional Court of a pro- persons running for parliamentary election vision of the Code of Administrative Fine (Podkolzina, ResDH(2003)124). Offences which contravened, inter alia, the Introduction of the post of investigating principle of the right to a dual level of juris- judge responsible for upholding human diction in criminal cases (Zaicevs, application rights in criminal proceedings; restriction of No. 65022/01, judgment of 31 July 2007, final the monitoring of prisoners’ correspondence, on 31 October 2007 – examination in principle and adoption of a rule prescribing the possi- closed).

Liechtenstein Change of the procedural practice on pre- prolong his/her detention is taken (Frommelt, trial detention, introducing the possibility for CM/ResDH(2007)55). the detainee to be heard before a decision to

Lithuania Reform of the legislative provisions con- Building of new prisons and refurbishment cerning detention on remand (Ječius, of old ones in order to put sanitary condi- ResDH(2004)56). tions in accordance with international standards, supplying detainees with free of charge Introduction of provisions concerning the personal hygiene materials and organising questioning of anonymous witnesses (Birutis, sport and cultural activities for them ResDH(2004)45). (Savenkovas, application No. 871/02, judgment of 18 November 2008, final on 18 Feb- Introduction of time-limits for completion of ruary 2009 – examination in principle closed). criminal cases, including the possibility for Abrogation of certain restrictions to the the investigating judge seized of a complaint employment of former KGB agents, relating to the excessive length of pre-trial including in the public sector (Sidabras and investigation to compel the prosecutor to Džiautas, application No. 55480/00+, judg- complete or discontinue the investigation ment of 27 July 2004, final on 27 October 2004 (Girdauskas, ResDH(2007)127). – examination in principle closed).

Malta Amendment to the Criminal Code, granting speedy review of the lawfulness of their con- the Court of Magistrates the power to auto- tinued detention (Sabeur Ben Ali, CM/ matically review the merits of any person’s ResDH(2007)8). detention and giving to detainees the right to

Republic of Adoption of a new Code of Civil Procedure, Church of Bessarabia and others, Moldova repealing the possibility for the Prosecutor ResDH(2010)8). General to request the annulment of final Reform of the conditions of office of judges judgments (Roşca, CM/ResDH(2007)56). aimed, inter alia, at specifying the time limits for the discharge of their duties (Gurov, appli- Reform of the Law on Religious Denomina- cation No. 36455/02, judgment of 11 July tions, recognising religious freedom and pro- 2006, final on 11 October 2006 – examination viding effective remedies (Metropolitan in principle closed).

The European Convention on Human Rights 21 Netherlands Amendment of the Dutch Civil Code con- Adoption of a new law (Intelligence and cerning the right of parentage and the condi- Security Services Act 2002)specifying the cir- tions of recognition of the biological father’s cumstances and conditions in which the paternity (Kroon and others, ResDH(98)148; authorities can carry out measures of secret Camp and Bourimi, CM/ResDH(2007)57). surveillance and providing a new procedure concerning requests for access to security services files (R.V., CM/ResDH(2007)86).

Norway Change of case law of the Norwegian Supreme Court regarding defamation (Ber- gens Tidende, CM/ResDH(2002)69).

Poland Raising of the number of psychiatric experts Amendment of the law on Maritime Cham- attached to the regional courts, and of their bers to ensure their independence and fees, in order to prevent delays to psychiatric impartiality (Brudnicka and others, applica- reports (Musial, ResDH(2001)11). tion No. 54723/00, judgment of 3 March 2005, Setting up of a compensation mechanism for final on 3 June 2005 – examination in prin- former owners of land situated beyond the ciple closed). River Bug which was abandoned after the Simplification of the registration formalities second world war (Broniowski, for vehicles purchased at public auction (Sil- ResDH(2009)89). dedzis, CM/ResDH(2010)78).

Romania Abrogation of the provisions that allowed the erty restored (Brumărescu, CM/ annulment of final judicial decisions estab- ResDH(2007)90). lishing the right to have nationalised prop-

Russian Federation Introduction of a new indexation system for Recognition of unmarried cohabiting cou- allowances to Chernobyl victims and other ples’ tenancy rights in favour of the partner of measures ensuring execution of judicial deci- the registered tenant, after the latter’s death sions awarding such allowances (Burdov, (Prokopovich, application No. 58255/00, judg- ResDH(2004)85). ment of 18 November 2004, final on 18 Feb- ruary 2005 – examination in principle closed).

San Marino Introduction of the possibility for the appeal criminal proceedings (Tierce and accused person to be heard in person in others, CM/ResDH(2004)3).

Serbia Acknowledgement by the Supreme Court of ular, extension of the degree of acceptable the direct effect of the Court’s case-law in criticism of public figures compared to domestic law, in the context of cases con- private individuals (Lepojic, cerning freedom of expression and, in partic- ResDH(2009)135).

Slovak Republic Constitutional reform introducing an effec- the administrative authorities to take urgent tive remedy against the excessive length of measures for placement of children – these proceedings and adoption of legislative decisions are henceforth taken by judges measures (notably a new Code of Criminal (Berecova, ResDH(2009)11). Procedure)to accelerate criminal proceed- Termination of the effects of the Lustration ings (Krumpel and Krumpelová, CM/ Act excluding former officers of the State ResDH(2007)10). Security Agency from certain important Repeal of the provisions of the Family Act administrative posts (Turek, CM/ and the Social Assistance Act which allowed ResDH(2012)59).

Slovenia Introduction of training and other measures held by the police (Rehbock, intended to prevent ill-treatment of persons ResDH(2009)137).

Spain Change of the case-law of Spanish courts a better protection of parental custody rights concerning the obligation to allow the truth (Iglesias Gil and A.U.I., CM/ResDH(2006)76). defence in defamation proceedings – the Spanish Constitutional court confirmed the Enhancing of safeguards as regards the com- direct applicability of the Strasbourg case-law position of military courts and the proce- (Castells, ResDH(1995)93). dural rules applicable by military judges Introduction in the Penal Code of stricter sitting on such courts, with a view to sanctions for child abduction so as to ensure avoiding the situation in which the same

22 Practical impact of the Council of Europe monitoring mechanisms judge hears a case at first instance and at appeal (Perote Pellon, CM/ResDH(2005)94).

Sweden Reform of judicial review of certain adminis- and adoption of a new Tax Payment Act trative decisions (Pudas and Bodén, granting taxpayers the right to a stay of exe- ResDH(1988)15 and 16). cution with respect to tax surcharges until Issuing of guidelines notably aimed at the adoption of a decision by the competent reducing the length of taxation proceedings authority (Janosevic, CM/ResDH(2007)59).

Switzerland Adoption of new legislative rules on telephone tapping (Kopp, ResDH(2005)96).

“The former Supreme Court’s recognition of the fact that courts must refer to the judgments of the Yugoslav Republic the Convention is an integral part of the European Court in their reasoning of Macedonia” national legal system, and that the domestic (Stoimenov, ResDH(2009)139).

Turkey Adoption of legislative amendments abol- conditions during military service in order to ishing the presence of a military judge in prevent suicide of conscripts (Abdurrahman State security courts (Çiraklar, Kilinç, CM/ResDH(2007)99). ResDH(1999)555). Constitutional and legislative reforms aimed Amendments to the regulatory framework at restricting the possibility to dissolve polit- concerning the conditions to be fit for mili- ical parties (United Communist Party of tary service and setting up of supervision of Turkey, CM/ResDH(2007)100).

Ukraine Amendment of criminal and civil provisions law by courts in cases concerning adoption on defamation, notably aimed at specifying and deprivation and restoration of parental the difference between “value judgments” rights, in order to guarantee the coherent and and “factual statements” and at introducing a proper handling of cases concerning custody defence of conscientious publication of children (Hunt, ResDH(2008)64). (Ukrainian Media Group, CM/ Amendment of the electoral law (Kovach, ResDH(2007)13). application No. 39424/02, judgment of 7 Feb- The full bench of the Supreme Court has ruary 2008, final on 7 May 2008 – examina- adopted guidelines for the application of the tion under way).

United Kingdom Legislative reform aimed at prohibiting the Adoption of a new law concerning the use of evidence obtained under compulsion financing of political parties (Bowman, in criminal trials (Saunders, ResDH(2007)14). ResDH(2004)88). A new law (Sexual Offences Act 2003)came into force in May 2004 repealing the specific Reform of electoral laws, allowing Gibraltar offence for any homosexual activity whatso- citizens to take part in elections to the Euro- ever engaged in privately between consenting pean Parliament (Matthews, adults (A. D. T., CM/ResDH(2010)118) ResDH(2006)57). The possibility of fully recognising the sex change of post-operative transsexuals, for Adoption of the Human Rights Act, pro- purposes including access to marriage, has viding an effective domestic remedy against been written into law (Christine Goodwin, alleged violations of human rights by the application No. 28957/95, judgment of 11 July authorities (inter alia, see Hatton, CM/ 2002 – Grand Chamber – examination in ResDH(2005)29). principle closed).

Examples of individual measures adopted following judgments of the European Court of Human Rights

Albania The applicant, who suffered from chronic treatment (Dybeku, application No. 41153/06, schizophrenia and was sentenced to life judgment of 18 December 2007, final on 18 imprisonment, has been transferred to a March 2008 – examination under way) prison where he is receiving suitable medical

Andorra The applicant, who was unable to appeal constitutional appeal (Millan i Tornes, against his conviction before the Constitu- ResDH(1999)721). tional Court, has been authorised to bring a

The European Convention on Human Rights 23 The applicant, excluded from an inheritance able to obtain compensation for the pecu- due to being an adopted child rather than the niary and non-pecuniary damage incurred “son of a lawful and canonical marriage”, was (Pla and Puncernau, CM/ResDH(2011)88).

Armenia The applicant, convicted on the basis of statements obtained under duress, was granted a retrial (Harutyunyan, CM/ResDH(2011)40).

Austria Presidential pardon expunged sentences and removed applicant’s name from criminal records (Bönisch, ResDH(87)1).

Azerbaijan The applicant’s association in favour of 2007, friendly settlement of 9 October 2008 – homeless people was registered when the examination under way). case was still being examined by the Court (Ramazanova, application No. 44363/02, The applicant, who had been wrongfully dis- judgment of 1 February 2007, final on 1 May missed, was reappointed to her post of head 2007 – examination under way). of a maternity ward (Efendiyeva, application The applicant obtained the eviction of the No. 31556/03, judgment of 25 October 2007, people illegally squatting her apartment (Aki- final on 25 January 2008; and judgment of mova, application No. 19853/03, judgment of 11 December 2008, final on 11 March 2009 – 27 September 2007, final on 27 December examination under way).

Bosnia- The applicant and her son were reunited, tion of the former Yugoslavia (Jeličić, CM/ Herzegovina after a five-year separation resulting from the ResDH(2012)10). child’s abduction by his father following the parents’ divorce (Šobota-Gajić, application The applicants, previously detained under No. 27966/06, judgment of 6 November 2007, conditions which imperilled their physical final on 6 February 2008 – examination in integrity, have been transferred to another principle closed). prison which does not pose the same prob- The applicant obtained the restitution of his lems (Rodić and three others,CM/ savings, previously frozen since the dissolu- ResDH(2011)93).

Bulgaria The applicant, who was detained on remand, and took a number of measures to accelerate was released on bail immediately after the the proceedings (Nankov, ResDH(2001)59). European Commission of Human Rights had At the request of the State Prosecutor, the adopted its report. Furthermore, following unfair proceedings leading to the applicant’s the finding of a violation because of the conviction were reopened, the conviction excessive length of the criminal proceedings, was quashed, and the case was referred to the the competent Court gave priority to the case appropriate court for fresh examination (Kounov, ResDH(2008)70).

Croatia In a series of cases concerning excessive into question in the European Court’s judg- length of proceedings, the domestic proceed- ment, were ended. The defendant’s paternity ings stayed were resumed. In addition, the was established and the applicant was President of the Supreme Court and presi- granted maintenance (Mikulić, dents of all County Courts and Municipal ResDH(2006)69). Courts in Croatia were urged by the Ministry The applicant obtained the restitution of his of Justice to display special diligence in the passport, seized for two years by the custom conduct of the proceedings concerning these authorities for non-payment of a fine (Napi- cases (Kutić, ResDH(2006)3). jalo, ResDH(2007)29). The domestic proceedings, the excessive length and inefficiency of which were called

Cyprus Following the adoption of general measures, the applicant can henceforth enjoy his right to vote (Aziz, CM/ResDH(2007)77).

Czech Republic The applicant, a former military judge, has inatory fashion when he was appointed as a been able to continue drawing the retirement judge to an ordinary court (Buchen, allowance which was suspended in a discrim- ResDH(2007)116).

24 Practical impact of the Council of Europe monitoring mechanisms Denmark The residence permit of a Somali minor has more than two years long “re-education” stay been reinstated, after the initial refusal to in Kenya decided by her parents (Osman, renew it upon her return to Denmark after a CM/ResDH(2012)117)

Estonia The applicant was transferred to a different The applicant, convicted of tax evasion on prison than the one where he had suffered the basis of provisions not yet in force at the from ill-treatment and was released shortly material time, was tried again and acquitted after. The Court awarded him a just satisfac- by the Supreme Court which in so doing tion in respect of the non-pecuniary damage acknowledged the direct effect of the Euro- suffered (Alver, CM/ResDH(2007)32). pean Court’s judgments (Veeber No. 2, ResDH(2005)62).

Finland Granting of a residence permit to an appli- The applicants could give their child the cant, whose expulsion to Congo would have name they had chosen for him, which had put him at risk of being ill-treated (N., CM/ been initially refused by the authorities ResDH(2007)35). (Johansson, application No. 10163/02, judgment of 6 September 2007, final on 6 December 2007 – examination under way).

France The applicant case was referred for retrial, purchase of land, were compensated for the following the finding of the Court that the pecuniary damage sustained, taking into criminal proceedings against him had been account the present market value of the land unfair (Mayali, CM/ResDH(2007)46). and the compensation already paid in the The applicants, who had suffered from an past (Motais de Narbonne CM/ excessive burden as a result of a compulsory ResDH(2007)47).

Georgia The applicant, arbitrarily detained despite his was set aside by the Supreme Court of acquittal, was released the day after the Euro- Georgia after the judgment of the European pean Court’s judgment (Assanidzé, Court (Shamayev and 12 others, application ResDH(2006)53). No. 36378/02, judgment of 12 April 2005, final The decision to extradite one of the appli- on 12 October 2005 – examination under cants to Russia, where he risked ill-treatment, way).

Germany The applicant was granted sole custody of his mother had abandoned him (Görgülü, child, born out of wedlock and initially ResDH(2009)4). placed in a foster family after the biological

Greece The applicants were granted the licenses to case was reopened and their conviction was operate their school (Hornsby, quashed, thus definitively putting an end to ResDH(2004)81). their prosecution (Manoussakis, The applicants were granted a permit to ResDH(2005)87). establish a place of worship. In addition, their

Hungary The ban on leaving the territory applying to 2009, final on 26 August 2009 – examination the applicant for over ten years following a under way). fraudulent bankruptcy has been lifted. (Földes et Földesné Hajlik, application No. The applicant, who stood convicted of 41463/02, judgment of 31 October 2006, final “crimes against humanity” for killing two on 26 March 2007 – examination in principle persons during a military operation, was closed). granted the reopening of the criminal pro- The applicant obtained access to the docu- ceedings against him (Korbely, application ments concerning the secret services which No. 9174/02, judgment of 19 September 2008 he needed to consult for his research (Kenedi, – Grand Chamber – examination in principle application No. 31475/05, judgment of 26 May closed).

Latvia Following the judgment, the legislative The applicants, who had been struck off the amendments made enabled the applicant, a register of Latvian residents as “citizens of the member of the Russian-speaking minority, to former USSR” despite having spent their stand for election without needing to prove entire lives in Latvia, obtained a permanent her knowledge of the Latvian language (Pod- residence permit (Slivenko, kolzina, ResDH(2003)124). ResDH(2009)130).

The European Convention on Human Rights 25 The applicant, detained under conditions not lodged with the Court (Farbtuhs, CM/ suited to his age (84 years)and state of health, ResDH(2007)54). was released shortly after the application was

Lithuania The applicant was fully compensated and, Grand Chamber – examination in principle following the reopening of his case by the closed). Supreme Court, obtained the payment of the The applicant obtained the implementation interests claimed, relating to the prejudice of the judicial decision she had been suffered following the seizure of mink furs in expecting for eight years; she was accordingly the framework of criminal proceedings in allocated a plot of land, as compensation for which he was eventually acquitted (Jucys, the one nationalised during the Soviet period application No. 5457/03, judgment of (Jasiūnienė, application No. 41510/98, judg- 8 January 2008, final on 8 April 2008 – exam- ment of 6 March 2003, final on 6 June 2003 – ination in principle closed). examination in principle closed). The applicant, who had been convicted of The data relating to the applicant have been corruption committed at the instigation of removed from the national list of prohibited state officials, had his conviction set aside, aliens (Gulijev, application No. 10425/03, together with the ban on working in judicial judgment of 16 December 2008, final on institutions (Ramanauskas, application 16 March 2009 – examination in principle No. 74420/01, judgment of 5 February 2008 – closed).

Luxembourg Exequatur of a Peruvian judgment of adop- case-law rule preventing a full adoption to a tion by a judgment of Luxembourg Court in non-married person (Wagner et J.M.W.L., December 2007, following the refusal ini- CM/ResDH(2013)33) tially held by the Courts in application of a

Moldova The applicant obtained the enforcement of a 36455/02, judgment of 11 July 2006, final on final domestic judgment in his favour. In 11 October 2006 – examination in principle addition, the Court awarded him just satis- closed). faction in respect of the pecuniary and non- The applicant obtained that his photograph pecuniary damage sustained as a result of the no longer be used without his agreement as a overturning of the original judgment (Roşca, background image on identity cards (Balan, CM/ResDH(2007)56). application No. 19247/03, judgment of The applicant church was recognised and 29 January 2008, final on 29 April 2008 – registered, which allows it henceforth also to examination under way). protect its property (Metropolitan Church of The temporary ban on the activities of the Bessarabia and others, ResDH(2010)8). Christian Democratic People’s Party was The applicant, who was the victim of unfair lifted (Christian Democratic People’s Party, civil proceedings concerning a breach of con- application No. 28793/02, judgment of 14 Feb- tract by her insurance company, had the pro- ruary 2006, final on 14 May 2006 – examina- ceedings reopened (Gurov, application No. tion under way).

Montenegro The applicants obtained the implementation application No. 11890/05, judgment of of the judgment ordering the eviction from 28 April 2009, final on 6 November 2009 – their apartment of a third party who had examination under way). been squatting there for 15 years (Bijelić,

Poland The applicant’s conviction for defamation, application No. 1543/06, judgment of 3 May for criticism expressed during the electoral 2007, final on 24 September 2007 – examina- campaign against another candidate, was tion under way). erased from her criminal file and her custodial sentence was not enforced (Malisiewicz- The applicant recovered her house and was Gąsior, application No. 43797/98, judgment of compensated for the prejudice suffered 6 April 2006, final on 6 July 2006 – examina- (Hutten-Czapska, application No. 35014/97, tion in principle closed). judgment of 19 June 2006 – Grand Chamber; The applicants are no longer forbidden to (Article 41)judgment of 28 April 2008 – Grand hold marches and rallies, inter alia, in favour Chamber – friendly settlement – examination of homosexual rights (Bączkowski and others, under way).

Portugal The applicant can now exercise his visiting ResDH(2007)88). rights in respect of his child (Maire, CM/

26 Practical impact of the Council of Europe monitoring mechanisms Romania In a series of cases concerning the annulment fiscated properties to the applicants or paid of final judgments which acknowledged the an amount of money corresponding to the applicants’ property rights on nationalised current value of the property at issue properties, the state either returned the con- (Brumărescu, CM/ResDH(2007)90).

Russian Federation The amounts due under the domestic judicial The applicant, a “national of the former decisions were paid to the applicant (Burdov, Soviet Union”, was able to have her place of ResDH(2004)85). residence registered and thus to obtain access The applicant was able to contest the pre- to medical assistance, social security, retire- sumption of paternity in respect of his wife’s ment pension entitlement, the right to own son, having proved that he was not the father property, the right to marry, etc. In addition, of the child, and was relieved of the obliga- she obtained Russian citizenship (Tatishvili, tion to pay maintenance (Shofman, applica- application No. 1509/02, judgment of 22 Feb- tion No. 74826/01, judgment of 24 November ruary 2007, final on 9 July 2007 – examina- 2005, final on 24 February 2006 – examination under way). tion in principle closed).

Slovak Republic The applicant recovered the custody of her The applicant, availing himself of DNA tests children, placed under care in an institution which were not formerly available, was while she could not contest this decision granted the reopening of the proceedings (Berecova, ResDH(2009)11). contesting paternity and the amendment of the birth certificate naming him as father (Paulik, 10699/05, CM/ResDH(2013)195).

Spain The applicant’s conviction has been struck off due to the retrospective application of a new the judicial records (Castillo Algar, precedent set by the Supreme Court which ResDH(1999)469). was not foreseeable for the applicant and Shortly after the introduction of the applica- which adversely modified the scope of the tion, the child was returned to the applicant, penalty that had been imposed to her, who thus recovered her custody rights (Igle- authorising her continued detention beyond sias Gil and A.U.I., CM/ResDH(2006)76). the date initially foreseen for her final release (Del Rio Prada, appl. No. 42750/09, judgment Release of the applicant on 22 October 2013 final on 21/10/2013 – examination under following a decision given by the Audiencia way) Nacional in response to the urgent individual measure indicated by the European Court,

Switzerland Following the revision by the Federal Court The authorities were able to locate the appli- of the judgment which had been censured by cant’s child, abducted by the mother and the European Court of Human Rights, the hidden in Mozambique, thus allowing the cantonal tax authorities were obliged to reim- applicant to be reunited with his son burse the fine imposed on the applicants, (Bianchi, ResDH(2008)58). with interest accruing to the sum (A.P., M.P. and T.P., ResDH(2005)4). The applicant was enabled to exhumate her The prohibition of entry to Switzerland stillborn child from a communal grave, and ordered against the applicant was removed have the burial organised as she wished and he was able to re-enter the territory and (Hadri-Vionnet, application No. 55525/00, to obtain a residence permit of indefinite judgment of 14 February 2008, final on 14 duration (Boultif, ResDH(2009)15). May 2008 – examination in principle closed).

“The former The applicant, convicted in criminal pro- proceedings, and an independent expert’s Yugoslav Republic ceedings which were unfair, being founded report was ordered (Stoimenov, of Macedonia” on the opinion of non-independent experts, ResDH(2009)139). was granted the reopening of the criminal

Turkey The political bans imposed on the applicants, The applicants’ convictions under former who were leaders or active members of the Article 8 of the Anti-Terrorism Law were dissolved parties, have been lifted. The obsta- erased ex officio and the restrictions on their cles to re-registering the parties have been civil and political rights were also automati- removed (United Communist Party of Turkey, cally lifted (Arslan, CM/ResDH(2006)79). CM/ResDH(2007)100).

The European Convention on Human Rights 27 Ukraine The applicant, whose case had been dis- the civil proceedings concerning the rehabil- missed when he was unable actually to take itation of his father’s memory (Strizhak, part in the hearing owing to a problem of ResDH(2008)65). notification, was granted the reopening of

United Kingdom The applicant was released and his deporta- and his pension was increased (Roche tion order revoked. Subsequently he has also ResDH(2009)20). been granted a permanent residence permit The applicants were released from custody by in the United Kingdom (Chahal, the Iraqi authorities in July and August 2011 ResDH(2001)119). respectively. Prior to their release, the UK took all possible steps to obtain assurances The applicant was able to have the pathology from the Iraqi authorities that the applicants affecting him recognised as being linked with would not be subjected to the death penalty the tests undergone during his military (Al-Sadoon and Mufdhi, CM/ service; his level of incapacity was reviewed ResDH(2012)68)

European Social Charter

Austria In 2003 new legislation was adopted which work between 8.00 p.m. and 6.00 a.m. strengthens the protection of children from Article 8 §4, Conclusions XVII-2. pornography. Article 7 §10, Conclusions The provision of Aliens Employment Act, XVII-2. which required employers to make foreign Section 6 of the Maternity Protection Act workers redundant first when reducing man- 1979 BGB1.II21 as amended by BGB1 No. power or to avoid having to reduce the 100/2002 prohibits in general the employ- working hours of all employees, was repealed ment of pregnant and nursing women in in 2011. Article 1§2, Conclusions XX-1.

Azerbaijan Further to Act No. 924-IIIQD, 4 December 14 years of age in family businesses for light 2009, the second part of Article 249 of the work or apprenticeships, was repealed. Labour Code, which previously allowed light Article 7§1, Conclusions 2011 work for children who have reached the age of The total number of participants in active 14, was repealed in order to be in line with the measures was 121,399 persons in 2010, a sig- Article 7 of the Charter. At the same time, nificant increase from 16,711 persons on 2007. according to the aforementioned Act the Article 1§1, Conclusions 2012. second part of Article 258 of the Labour Code which provided for employment of children of

Belgium Article 383 bis of Penal Code creates a new ment with a fine. Article 7§10, Conclusions offence of child pornography: it prohibits, XVII-2. inter alia, the selling, distribution, renting, By an amendment to the Judicial Code in displaying and possession of pornographic 2003, in adoption proceedings it would material of children up to 18 years of age, become an obligation to hear all children with penalties of up to 15 years of imprison- once they have reached the age of 12 years. Article 17, Conclusions XVII-2.

Bulgaria Legislation adopted in 2006 lifted the ban on nent basis. Article 11§§1, 2 and 3 and strike in certain sectors. Governmental Com- Article 13§1,.European Roma Rights Center v. mission established to examine the follow-up Bulgaria, complaint No. 46/2007, to violations of the right to strike found by In 2007 the Healthy and Safe Working Con- the ECSR. Article 6§4, CSIB and al. v. Bul- ditions Act was amended to strengthen pro- garia, complaint No. 32/2005. visions on occupational health services and Adoption of Decree No. 27 of 9 February include penalties in case of breaches. Labour 2009 establishing a procedure for the reim- inspection visits show increased coverage of bursement of expenses of hospital treatment enterprises offering occupational health for persons without resources on a perma- services. Article 3§4, Conclusions 2009,

Croatia Government decision to withdraw a biology tive health education. Article 11§2, Interights textbook, which had been found to contain v. Croatia, complaint No. 45/2007, see also discriminatory statements, from the national Committee of Ministers Resolution curriculum relating to sexual and reproduc- Res(2009)7.

28 Practical impact of the Council of Europe monitoring mechanisms New labour legislation which repeals the pro- entered into force on 1 January 2010. hibition on women performing night work Article 1 of the Additional Protocol, Conclu- with certain exceptions relating to maternity sions XX-1 (2012).

Cyprus Law No. 127 (I) 2002 guarantees that persons employ persons with disabilities. Article 15 with disabilities are equally treated with §2, Conclusions 2005. other employees by their employer as regards the procedure for application for employ- The Defence Regulations 79A and 79B author- ment, recruitment, promotion, dismissal, ising the requisitioning of workers and prohibi- compensation, training and other terms and tion of strikes in cases other than those per- conditions of employment. Regulations mitted by the Revised Charter were repealed implementing this law provide for the by an Order of the Council of Ministers. payment of special grants to employers who Article 6§4, Conclusions 2010

Czech Republic Notification No. 288/2003 includes a ban on gerous and unhealthy occupations. Article 2 employment of minors in hazardous occupa- §4, Conclusions XVIII-2. tions and specifies work and workplaces which are prohibited for young people and Adoption of an anti-discrimination legisla- the conditions under which young people tion (No. 198/2009) on 17 June 2009 which may, in exceptional circumstances, carry out bans discrimination in areas including access this work within the scope of vocational to employment, business, education, health- training. Article 7 §2, Conclusions XVII-2. care and social security on the grounds of The Labour Code as amended provides for sex, age, disability, race, ethnic origin, different types of additional holiday and nationality, sexual orientation, religious affil- reduced working hours for workers in dan- iation and faith. Article 1§2 Conclusions XX-1

Denmark The Government introduced a new public The system of vocational training was health programme for the years 2002-10 reformed by Act No. 446 of 10 June 2003 on which aims to increase life expectancy, vocational training for adults. More account improve quality of life and reduce health ine- is taken of the needs of unskilled workers, qualities. Article 11§1, Conclusions XVII-2. immigrants, refugees and unemployed Under the Inheritance Act No. 727 of 14 people. Article 10 §3, Conclusions XVIII-2. August 2001, children born out of wedlock The Act on Protection against Dismissal due inherit in the same way as legitimate chil- to Association Membership was amended in dren. Article 17, Conclusions XVII-2. 2006 in order to protect the right not to be a member of a union including during recruitment.. Article 5, Conclusions XIX-3.

Estonia The 1992 Employment Contracts Act, as Equal Treatment Act (2009) prohibits dis- amended in 2004, prohibits the termination crimination on the grounds of disability with of an employment contract of a pregnant regard to: conditions of access to employ- woman or of a person raising a child under ment, self-employment and occupation, three years of age. Article 8 §2, Conclusions including selection criteria, recruitment con- 2005. ditions and promotion; entry into employ- Self-employed workers are now explicitly ment contracts or contracts for the provision covered by the relevant health and safety leg- of services; appointments, working condi- islation. Article 3§2, Conclusions 2009. tions, remuneration, termination of employment contracts or contracts for the provision Amendments to the Defence Forces Service of services, or release from office. Act shortened alternative service from 12-18 Article 15§2, Conclusions 2012 months to 8-12 months as of July 2010. Article 1§2, Conclusions 2012

Finland In 2002 the Ministry of Social Affairs and non-custodial parents. In order to facilitate Health issued Decree No. 128/2002 after con- the reconciliation between work and family sultation with employers’ and workers’ for parents of children with disabilities or organisations containing the current exten- long-term illnesses, the right to partial child- sive list of examples of work to be classified as care leave has also been extended until the dangerous for young employees. Article 7 §2, time when the child in need of special care Conclusions XVII-2. and treatment reaches the age of 18. As from 1 August 2006, the right to tempo- Article 27§2, Conclusions 2011 rary child-care leave has been extended to

European Social Charter 29 The adoption of the Government’s Pro- mended as an example on how to tackle gramme to Reduce Long-term Homelessness homelessness. Article 31§2, Conclusions 2011 in 2008 with the central objective of halving long-term homelessness between the years The Non-Military Service Act 1466/2007 2008 and 2010. The Programme not only which entered into force in 2008 shortened attained the objective, but exceeded it. The alternative service from 395 days to 362 days. “Housing First” –principle has been recom- Article 1§2, Conclusions 2012

France The discrimination in matters of succession lodge a complaint with the administrative tri- towards children born of an adulterous rela- bunal. tionship was removed by Law of 3 December Implementation of the Act on the enforceable 2001. Article 17§1, Conclusions 2003. right to housing of 5 March 2007. Circular DHOS/DSS/DGAS No. 141 of 16 Article 31§3, ATD Fourth World v. France, March 2005 allows the giving of urgent complaint No. 33/2006,. medical care to foreigners illegaly resident in France who do not benefit from state medical A decision by the Court of Cassation of 27 assistance. Articles 13 §4 and 17, Collective September 2007 states that “where it is complaint No. 14/2003, FIDH. impossible for employees to take annual paid Adoption of Act 102/2005 on equal rights leave during the year stipulated by the and opportunities, participation and citizen- Labour Code or a collective agreement ship of persons with disabilities because of absences linked to an employment Implementation of Circular No. 2005-124 injury or occupational disease,the accrued which provides for specific measures for leave shall be carried over to be taken after autistic children and their families. they have resumed work”, Article 7§7, Con- A first Action Plan on Autism 2005-2007 clusions 2011. provided inter alia for additional education Law No. 2009/323 of 25 March 2009 intro- places. A second plan for the period 2008- duced a new measure to assist persons in sit- 2010 foresees further measures. Article 15§§ uations of extreme social deprivation, whose 1 et 2 and Article 17, International Associa- prospects of integration and improved tion Autism-Europe v. France, complaint No. autonomy were poor. These are the so-called 13/2002, and Conclusions 2008, Article 15§§1 pensions de famille (family boarding houses) and 2. which provide long-term accommodation Since 1 December 2008 all persons recog- and an opportunity for the person concerned nised by the Mediation Commission as to re-establish social ties, partly thanks to the having priority needs for housing or shelter daily presence of a landlord or landlady. and who have not had any suitable offers may Article 31§2, Conclusions 2011.

Germany The Government adopted an Action Plan to Section 9 of the Act amending military law of protect children and young people against 31 July 2008 (BGBl. I, p.1629), 19 added the sexual violence and exploitation and to following paragraph 6 to section 16 of the combat child abuse, child pornography, traf- Employment Protection Act: “Sections 1, ficking in children and child prostitution. paragraphs 1, 3 and 4, and sections 2 to 8 of this Act shall also apply to foreigners Moreover, the Act of 23 July 2002 on the Pro- employed in Germany if they are required to tection of Young People was amended to honour their military service obligations in protect young persons from harmful material their country of origin. This provision shall in the media (Internet, television, radio). apply only to nationals of States Parties to the Article 7 §10, Conclusions XVII-2 (2005). European Social Charter of 18 October 1961 (BGBl. II, 1964, p. 1262) who are lawfully res- Under the amendment of 20 June 2002 to the ident in Germany”. On this basis, migrant Act on Maternity Leave, in case of premature workers from the States Parties to the 1961 birth the postnatal leave is extended in order Charter who are lawfully present on German to compensate the lost prenatal leave and to territory are now treated no less favourably enable female employees to have fourteen than German nationals and nationals of the weeks, maternity leave in total. (Before this EU member states or parties to the EEA amendment, six weeks were theoretically agreement with regard to employment con- granted, but this period might be less ditions for those just finishing military depending on the date of birth). Article 8 §1, service. Article 19§4, Conclusions XIX-4 Conclusions XVII-2 (2005). (2011).

30 Practical impact of the Council of Europe monitoring mechanisms Greece Act No. 3144/03, adopted in 2003, deter- Section 21 of Law No. 3328/2005 explicitly mines activities and occupations in which the prohibits corporal punishment of students in employment of minors between the age of secondary schools and a harmonisation of fifteen and eighteen is prohibited. Article 7 the legislation is under way in order to §2, Conclusions XVII-2 (2005). explicitly prohibit corporal punishment in all institutions and forms of care for children. Under Section 33 of Act No. 2956/01 and Furthermore, Act No. 3500/2006 prohibits Presidential Decree No. 407/2001, the prohi- corporal punishment within the family and bition of night work has been extended to in cases of abuse of parental authority pro- cover all categories of young workers. vides for sanctions including withdrawal of Article 7 §8, Conclusions XVII-2 (2005). parental authority by the courts. Article 17. complaint OMCT v. Greece, No. 17/2003. Law No. 3103/2003 has removed the quota In 2008, reforms were launched to improve on the number of women allowed to enter the social assistance system. Law No. 3631/ the police academy. Article 1 of the Additional 2008 established the National Social Cohe- Protocol to the 1961 Charter, Conclusions sion Fund. Article 13§1, Conclusions XIX-2 XVII-2 (2005). (2009).

Hungary In 2003 the Labour Code was amended to lations of their rights. Article 17, Conclusions include maternity, part-time work and tem- XVII-2 (2005). porary work among the grounds of non-dis- Freedom to organise, including the prohibi- crimination. Article 1§2, Conclusions XVII-2 tion of discrimination on the grounds of TU (2005). membership in this respect are governed in detail by Act CXXV of 2003 on the Promo- Act No. IX of 2002, which amended the Act tion of Equal Treatment and Equal Opportu- on the Protection of Children, establishes a nity. Article 5, Conclusions XVIII-1 (2006). children’s rights representative with a view to Under Act on the legal status of civil servants protecting the rights of children who are in amended by Law LXXXIII 2007, all public protective care as set down in the Act and to service posts in Hungary, excluding certain key assisting children in learning their rights and ones, will now be open to nationals of States advocating for them, for example by assisting Parties. Article 1§2, Conclusions XIX-1 them in initiating complaints on alleged vio- (2008).

Iceland The Child Protection Act No. 80/2002 states also guarantees the protection of young that corporal punishment of children is pro- offenders. Article 17, Conclusions XVII-2 hibited in homes and institutions for children (2005). and lays down the procedure for placing chil- A new Gender Equality Act was adopted in dren in foster care or in homes or institutions February 2008. Article 1§2, Conclusions XIX- and sets out measures which take into 1 (2008). account all the needs of children and guarantee their safety and well-being. This Act

Ireland Introduction of a statutory minimum wage the threshold established by the ECSR. (2000 Act on the National Minimum Wage). Article 4§1, Addendum to Conclusions XVI-2 The minimum wage for a single person with (2003). at least two years of work experience meets

Italy The Education and Training Reform Act No. The Labour Market Act No. 30/2003 is aimed 53/2003 links up the two traditionally dis- especially at reforming employment services tinct systems of education and vocational and apprenticeship contracts. Article 10 §1. training. Under the new system, pupils are Conclusions 2007. obliged to attend school of one form or another until they are 18.

Latvia As from 1 January 2006 police staff are enti- enjoy union prerogatives under the Police tled to establish and join trade unions and Act. Article 5, Conclusions XIX-3

Lithuania Under Act No. IX-1672 of 1 July 2003 on and 40 hours a week. Article 2§1, Conclusions Safety and Health at Work the standard 2005. working time may not exceed 12 hours a day Mandatory health education programmes have been introduced, under Health Ministry

European Social Charter 31 Order No. 437 of 30 August 2002. Adoption of Law 17-589 of 2006 on Social Article 11§2, Conclusions 2005. Services whereby temporary residents have access to social services in the same way as per- Law No. 114-5115 on Equal Opportunities of manent residents. Article 14§1, Conclusions 2003 prohibits any direct or indirect discrim- 2009. ination on the grounds of sex in the following Amendments (No. X-1602 of 17 June 2008) fields: access to employment, vocational edu- mean that the duty to provide reasonable cation and training, recruitment, dismissal accommodation is now embodied in the Law and working conditions including remunera- on Equal Treatment. Article 15§2, Conclu- tion and promotion. Article 20, Conclusions sions 2012 2006. The Law on the Social Integration of the Disa- bled Persons now provides for general anti-dis- Law on support for employment entered into crimination provisions explicitly protecting force on 1 August 2006, according to which persons with disabilities in the fields of unemployed persons taking part in vocational housing, transport, telecommunications and training programme are entitled to an educa- cultural and leisure activities. Article 15§3, tion grant. Article 10§5,.Conclusions 2008. Conclusions 2012.

Luxembourg Act of 28 November 2006 encompassing a crimination on grounds of disability. general prohibition of direct and indirect dis- Article 15§1, Conclusions XIX-1 (2008).

Malta Legal Notice No. 440 of 2003 and Act No. regulate work by young persons. Article 7§1, XXII of 2002 on employment and industrial Conclusions XVII-2 (2005). relations, as well as Regulations of 2003 on employment of young persons establish that Legal Notice No. 247/2003 on organisation of the minimum employment age shall not be working time regulates night work, which lower than the minimum age at which com- cannot exceed 8 hours in any 24-hour period. pulsory full-time schooling ends (16) and Article 8§4, Conclusions XVII-2 (2005).

Republic of The Labour Code (Article 5), as amended by Law No. 156-XVI on the organisation of Moldova Law No. 154-XV of 2003, strengthens (alternative) civil service, which brought the equality of rights and opportunities of length of non-military national service into employees, in particular as regards promo- line with that of military service (12 months), tion, qualification and work experience, came into force on 7 September 2007. vocational training and retraining. Article 20, Article 1§2, Conclusions 2012. Conclusions 2006.

Netherlands In 2002 a special help-desk for young people lishes entitlement to maternity leave of 16 (Jongerenloket) was opened on the Ministry weeks: six weeks prior to the birth and ten- of Social Affairs and Employment Web site week postnatal leave. Article 8 §1, Conclu- providing information about work condi- sions XVII-2. tions and the kind of work children are legally permitted to do at various ages. The closed shop clause in the collective Article 7 §10, Conclusions XVII-2 (2005). agreement covering print workers has been The Work and Care Act, from its entry into removed. Article 5, Conclusions XVIII-1 force on 1 December 2001, formally estab- (2006).

Norway Equal access to health care is one of the basic A new chapter introduced into the Working principles of the Patients’ Rights Act, which Environment Act No. 4/2004 strengthens came into force on 1 January 2001. equal treatment in the working world. Article 11§1, Conclusions 2005. Article 20, Conclusions 2006.

Poland In the field of control of air pollution, the 96 which prohibits all corporal punishment legal framework has been strengthened in childrearing: “persons exercising parental through the adoption of the Environmental care, care or alternative care over a minor are Protection Act of 27 April 2001 and through forbidden to use corporal punishment, inflict various implementing regulations. Article 11 psychological suffering and use any other §3, Conclusions XVII-2 (2005). forms of child humiliation”. Article 17, Con- Article 2 of the Act of 6 May 2010 “On the clusions XIX-4 (2011) Prevention of Family Violence” amends the According to an act adopted on 24 August Family Code (1964) by inserting a new article 2007, which entered into force on 10 October

32 Practical impact of the Council of Europe monitoring mechanisms 2007, foreign nationals wishing to practise person concerned meets certain conditions, medicine in Poland must still obtain authori- listed in the report, none of which depend on sation from the Chamber of Physicians, but applicant’s nationality. Article 1§2, Conclu- authorisation must now be granted if the sions XX-1 (2012).

Portugal The new Labour Code of 2003 and its Imple- Decree-Law No. 58/2002 together with the mentation Act No. 35/2004 contain provi- Application Decree No. 16/2002 set out that a sions which aim to reduce the number of “training clause” is to be introduced in working children under 16 years of age. employment contracts entered into with Article 7 §1, Conclusions 2006. minor workers over the age of 16 years who Article 152 of the Penal Code was amended have not successfully finished their compul- in 2007 (by Law 59/2007) to prohibit the cor- sory education or do not have any profes- poral punishment of children in the home. sional qualification. Article 7 §3, Conclusions Article 17§1, Conclusions 2011 World Organ- XVII-2 (2005). isation against Torture v. Portugal 34/2006 Adoption of legislation explicitly prohibiting A new Solidarity Supplement for the Elderly direct and indirect discrimination on the was established by Decree-Law basis of disability with respect to education and training, as well as in the field of access to No. 232/2005 of December 2005 in order to employment and working conditions. combat poverty among the elderly. Article 23, Article 15§§1 and 2, Conclusions 2008. Conclusions 2009.

Romania Section 16 of Government Emergency Ordi- The new law (No. 272/2004) on the protec- nance No. 96/2003 on protection of mater- tion and promotion of the rights of the child nity at the workplace provides that women contains a provision on the prohibition of are obliged to take 42 days postnatal leave. corporal punishment of children within the Article 8 §1, Conclusions 2005. family and in institutions. Article 17, Conclu- sions 2005. Law 217/2003 on the prevention and fight Law No. 188/1999 on the status of public against acts of domestic violence contains servants has been amended in 2006 and 2008 provisions on the setting up of a National to the effect that all civil servants, including Agency for Family Protection and the Statute high ranking civil servants, are entitled to the of Family Assistants. Article 17§1, Conclu- right to establish or join trade unions. sions 2005. Article 5, Conclusions 2010

Slovakia Under Section 63 of the new Labour Code, risks. Article 3 §1, Conclusions XVIII-2 the period of notice has been extended to 3 (2007). months in the case of workers dismissed for Under Act No. 5/2004 on employment serv- so-called economic reasons. Article 4 §4, ices, equal access to continuing training and Conclusions XVI-2 (2003). re-training is guaranteed to Slovak nationals Several legislative and regulatory measures and nationals of the other Contracting on the protection of health and safety at work Parties to the Charter, provided that they are have been adopted on the minimum safety legally resident in Slovakia. Article 10 §3, and health requirements covering many Conclusions XVIII-2 (2007).

Slovenia The new Employment Relations Act (ZDR), because of exceptional circumstances that as from its entry into force on 1 January 2003, could not have been anticipated, such as provides protection against notice of termi- death in the family, loss of employment or nation of contract and dismissal during a serious illness, they are unable to pay the rent pregnancy, whilst on maternity leave or and other charges (water, electricity, tele- parental leave and while a woman is breast- phone, etc.), on condition that they have feeding a child. Article 8 §2, Conclusions applied for subsidised rent and informed the 2005. owner of their situation. Article 31 §2, Con- From the 2003/2004 school year it is no clusions 2005. longer permitted to create classes that In 2010 a new Act on Equal Opportunities for include only Roma pupils. A working group People with Disabilities was adopted. The is preparing a strategy for a more effective purpose of this act is to prevent and eliminate inclusion of Roma in the education process. discrimination of people with disabilities, and Article 17, Conclusions 2005. to encourage equal opportunities of people Under Section 104 of the 2003 Housing Act, with disabilities in all areas of life. It also spe- tenants’ leases may not be terminated if, cifically prohibits discrimination in access to

European Social Charter 33 goods and services available to the public and communication barriers that prevent access of sets out an obligation to provide appropriate people with disabilities to goods and services. accommodation and remove physical and Article 15§3, Conclusions 2012

Spain The principle of equal pay was enhanced by nancy or maternity. Article 8§2, Conclusions Act No. 33/2002, under which Article 28 of XIX-4 (2011). the Workers’ Statute now covers remunera- The First Schedule to Law No. 54/2007 on tion in all its aspects. Article 1 of the Addi- International Adoption amended the Civil tional Protocol of the 1961 Charter, Conclu- Code to remove the “right” of parents and sions XVII-2 (2005).. guardians to use “reasonable and moderate” With the entry into force of the Equality Act, forms of “correction” from Articles 154 and domestic workers, like other workers, cannot 268 of the Civil Code. Article 17, Conclusions be dismissed for reasons pertaining to preg- XIX-4 (2011).

Sweden Following the entry into force of the Senior New substitutive collective agreements Livelihood Act in 2004, senior livelihood between trade unions and companies have support is payable to persons aged 65 or over been signed in order to repeal closed shop who are domiciled in Sweden and have no clauses. Article 5, complaint Confederation of pension at all or whose pension is not suffi- Swedish Enterprise v. Sweden, No. 12/2002. cient to live on. Article 23, Conclusions 2005.

“The Former The upper limit on the amount of compensa- tions. The amount of compensation is now Yugoslav tion in cases of discrimination was repealed determined case by case. Article 1§2, Conclu- Republic of in August 2008 following the adoption of the sions 2012 Macedonia” amended version of the Law on Labour Rela-

Turkey The new Labour Act No. 4857 stipulates that example the coverage rate for the vaccine children who attend school may work for a against measles, mumps and rubella maximum of two hours per day and ten increased from 75% to 95% since 2003. hours per week. During holidays, working Article 11§3, Conclusions 2009. hours may not exceed seven hours per day As a result of the repeal of Section 3/II-A of and thirty-five hours per week. Article 7 §3, Social Insurance Act No. 506, foreign nationals Conclusions XVII-2 (2005).. with a permit to work in Turkey are automati- Law No. 5510 on Social Insurance and Uni- cally covered against long-term risks, including versal Health Insurance (October 2008), unemployment. Article 12§4, Conclusions establishes a compulsory universal health 2009. insurance for all citizens Article 11§1 Con- Section 14 of the Law No. 5378 on Persons clusions 2009 with Disabilities that entered into force on 7 Immunisation programmes against common July 2005 prohibits discrimination in relation childhood diseases have increased the vacci- to the employment of persons with disabili- nation coverage rates significantly, for ties Article 15§2 Conclusions 2012

United Kingdom The Regulations 2000 on Protection of Chil- time to 12 hours per week. Article 7 §3, Con- dren at Work removed the provision that clusions XVII-2 (2005).. allowed children between the ages of 10-13 to The Sexual Offences Act 2003 introduced undertake work for their parents in agricul- new offences of trafficking of people, espe- tural or horticultural activities and limited cially of children, for the purposes of sexual the hours that children below the minimum exploitation. Article 7 §9 Conclusions XVII- school-leaving age may work during term- 2(2005).

European Convention for the Prevention of Torture

Albania The CPT called upon the Albanian authori- been implemented in the entire prison ties to take all necessary measures to ensure system. that all prisoners in pre-trial detention The CPT severely criticised the poor quality centres are granted at least one hour of of the healthcare provided to prisoners at outdoor exercise per day (including on Sun- Korca Pre-Trial Detention Centre and days). In response, the Albanian authorities requested that the Albanian authorities carry confirmed that this recommendation had out a comprehensive review of the healthcare service in the establishment. In

34 Practical impact of the Council of Europe monitoring mechanisms response, the Albanian authorities indicated doctor, which resulted in his dismissal. Sub- that, following a review of the health-care sequently, a new doctor was recruited on a service at Korca, a disciplinary procedure full-time basis. had been initiated against the establishment’s

Armenia The information gathered during the 2010 gramme”, is expected to decrease over- visit shed light on several areas of concern, in crowding, improve conditions of detention particular: prison overcrowding, impover- for various categories of inmate and reduce ished programmes of activities for prisoners, the risks of inter-prisoner intimidation. allegations of corrupt practices by prison staff and public officials associated with the In its 2011 visit, the CPT concluded that con- prison system, and reliance on an informal ditions under which life-sentenced prisoners inmate hierarchy to maintain good order in were accommodated at Kentron Prison could prisons. In their response, the Armenian authorities referred to measures being taken be considered as amounting to inhuman to combat prison overcrowding, including by treatment. In their response, the Armenian placing increased emphasis on alternatives to authorities indicated that the legal provisions imprisonment and by making early release on the segregation of prisoners serving life mechanisms more efficient. Further, the sentences would be reviewed after a fully- building of new prisons, within the frame- fledged individual risk assessment procedure work of a “prison infrastructure reform pro- is put in place.

Bulgaria The CPT called upon the Bulgarian authori- building. In response, the Bulgarian authorities to transfer without delay the investiga- ties indicated that a new investigation detention detention facility in Plovdiv – in which tion facility was opened in Plovdiv on 10 June the conditions could fairly be described as 2009, and that conditions in it comply with inhuman and degrading – to an appropriate international standards.

Cyprus After recommendations by the CPT to estab- for the Investigation of Complaints and Alle- lish an independent and effective law gations vested with responsibility for investi- enforcement accountability mechanism, the gating police misbehaviour of any kind. authorities set up an Independent Authority

Czech Republic In the report on the 2006 visit, the CPT rec- vision; set strategic and operational objec- ommended the ending of the routine hand- tives for Section E and ensure that the neces- cuffing of life-sentenced prisoners in Valdice sary resources are allocated to fulfil the rede- Prison, whenever they were taken out of their fined purpose; and ensure that all personnel cells. During the 2008 visit, the CPT who work in Section E are committed to the observed that handcuffs were no longer ethos of the unit, and are properly trained to applied systematically for all out-of-cell work with challenging prisoners. In their movements, but only on the basis of an indi- response, the Czech authorities indicated vidual risk assessment. that a substantial part of the instructors and In the report on the 2008 visit, the CPT rec- specialised staff in Section E were replaced in ommended that the Czech authorities initiate mid-2008 and that, consequently, there have a comprehensive review of the high security been positive changes (including the replace- ward at Valdice prison (Section E) in order ment of the operating management in to: define more clearly the purpose of this Section E) in accordance with the CPT’s find- ward in terms of mission statement and ings and recommendations.

Denmark In 2008, the CPT recommended that efforts apply for a pressure-relieving top mattress be made to clean and refurbish the detention made of the same fire-retardant material as units of the Ellebæk Institution (an establish- the standard mattress. The Ellebæk Institu- ment for foreign nationals detained under tion has also inspected the bed linen and aliens legislation), to improve the bedding bought 50 new sets. arrangements, and to make the environment At the Maximum Security Department of more appealing. In their response, the Nykøbing Sjælland Psychiatric Hospital, the authorities indicated that: the Ellebæk Insti- CPT recommended that a degrading form of tution is inspected more frequently; painting physical immobilisation (whereby the works are being carried out on a continuous patients’ arms were attached to a belt and the basis; new mattresses have been purchased feet attached to each other by straps) be for each room. Moreover, inmates and ended. The Danish the authorities stated that detainees suffering from back disorders can the Region of Sealand had confirmed that

European Convention for the Prevention of Torture 35 this illegal method of immobilisation had been discontinued.

France In the field of psychiatry, the CPT recom- restraint vis-à-vis prisoners hospitalised in mended during its 2010 visit that urgent general psychiatry departments and that the action be taken in respect of persons awaiting necessary adjustments to the current organi- placement in units for difficult patients and sation of care were under consideration. prisoners suffering from psychiatric disor- In reaction to recommendations by the CPT, ders. It emerged during the visit that these categories of patients were generally kept for the French authorities also informed the prolonged periods, often under restraint, in Committee of steps taken or envisaged to seclusion rooms in general psychiatry improve conditions of detention in police departments. In response, the French author- and gendarmerie cells and in administrative ities informed the Committee of the envisaged setting-up of psychiatric intensive care holding centres for foreign nationals. units at the Paul Guiraud hospital complex The CPT called upon the French authorities and of the planned increase of the number of to rapidly adopt a penitentiary law incorpo- places available in units for difficult patients rating European standards relating to depri- in order to better meet the needs of the vation of liberty. In its response, the Govern- patients concerned. They also indicated that, ment indicated that it was about to submit a pending the construction of further psychi- penitentiary bill to Parliament. This was sub- atric hospital units for prisoners, a document sequently adopted (penitentiary law No. was under preparation with a view to pre- 2009-1436 of 24 November 2009, published venting abusive resort to isolation and in the Official Journal on 25 November 2009).

Georgia After its 2012 visit, the CPT recommended mitted that currently all inmates in all estab- that measures be taken to ensure that all pris- lishment are offered the possibility to oners are offered the possibility to take outdoor exercise for at least one hour every outdoor exercise for at least one hour every day. day. In their response, the Government sub-

Germany In the report on the 2005 visit to Germany, islation was enacted in all German Länder, the Committee recommended that the increasing the visit entitlement for juvenile general visit entitlement for juvenile pris- prisoners to a minimum of 4 hours per oners of a minimum of 1 hour per month be month. significantly increased. In January 2008, leg-

Hungary In order to implement the CPT’s recommen- of working prisoners at Tiszalök Prison has dations aimed at improving the situation of significantly increased, thanks to closer co- prisoners held in special security conditions operation between the prison management (KBK units), the authorities planned to adopt and the private contractor, as was recom- new regulations in 2010. Further, the number mended by the CPT.

Italy During its 2012 visit, material conditions The 2008 visiting delegation made an imme- were poor in the cells at the Florence and diate observation at the end of the visit, Palermo State Police Headquarters (Ques- requesting the Italian authorities to carry out tura). In their response, the Italian authori- a complete revision of the seclusion and ties stated that these cells had been taken out restraint procedures in force at the Aversa of service and that alternative - more suitable Judicial Psychiatric Hospital (OPG) based on - places of detention had been found. the CPT’s established standards in this The male unit at the Bologna Identification matter. In response, the Italian authorities and Expulsion Centre (CIE) was in a poor announced that the management of the OPG state of repair, apparently due to repeated acts had approached the local health authorities of vandalism by detainees. In their response, with the aim of bringing the Aversa OPG’s the Italian authorities informed the Com- procedures in this matter into line with those mittee about the temporary closure of the applied in public health establishments. CIE in Bologna in order to carry out renova- tion work.

Latvia The CPT called upon the Latvian authorities where the material conditions were found to to withdraw from service the entire remand be unfit for human detention. In response, block at Cēsis Juvenile Correctional Centre, the authorities indicated that the remand

36 Practical impact of the Council of Europe monitoring mechanisms block had been closed and the juveniles the authorities indicated that the life-sen- detained there had been transferred to a dif- tenced prisoners at the medium regime level ferent institution. held at Daugavpils Prison could now spend The CPT called upon the Latvian authorities the whole day in recently constructed facili- to devise and implement a comprehensive ties, i.e. an outdoor yard, an activity room regime of out-of-cell activities in respect of and a gymnasium. life-sentenced prisoners. In their response,

Liechtenstein The CPT recommended that a person subject was foreseen. Article 128a of the detained by the police have the – formally Code of Criminal Procedure, under which a recognised – right to inform a relative of person apprehended must be informed, from their situation from the very outset of their the moment of his apprehension or immedi- deprivation of liberty. In their response, the ately afterwards, of their right to notify a rel- Liechtenstein authorities indicated that the ative or other trusted person as well as their adoption of a new legal provision on this lawyer, came into force on 1 January 2008.

Malta During its 2011 visit, the CPT noted that at bished and the Tent Compound, which had both Lyster and Safi Detention Centres for also been criticised by the Committee in the foreigners, material conditions have report on the 2008 visit, had been disman- improved since the previous visit. In partic- tled. It is noteworthy that all foreign nationals ular, at Lyster Barracks, these improvements received personal hygiene products on a are significant: the Hermes Block, which had regular basis and were also supplied with been in a very poor state of repair at the time clothes and footwear. of the 2008 visit, had been completely refur-

Moldova The CPT made recommendations aimed at initiated against the persons who served as improving the effectiveness of the investiga- Minister of Internal Affairs and Head of the tions into allegations of police ill-treatment Chişinău General Police Directorate at the in the context of the post-election events of time of the events. Moreover, in order to April 2009. After the Committee’s visit, a ensure better identification, members of the number of criminal proceedings have been “Fulger” special police force have been opened against police officers, including instructed to wear badges and an individual members of the “Fulger” special police force. identification number during operations. Further, a criminal investigation has been

Montenegro In response to recommendations made by atric Hospital. In their response, the authori- the CPT concerning patients’ living condi- ties indicate that they have established a pro- tions at the Dobrota Special Psychiatric Hos- tocol defining the rights and responsibilities pital, most wards have been refurbished, of the security service and that special large-capacity dormitories have been training is being provided to security staff. replaced by smaller structures, the sanitary facilities have been improved, and the dining Following recommendations made by the room has been reconstructed. CPT concerning the Komanski Most Institu- After the visit in 2008, the CPT recom- tion for People with Special Needs, the Mon- mended that the Montenegrin authorities tenegrin authorities have recruited addi- review the selection, training and supervi- tional staff, have separated children from sion of security staff assigned to the Forensic adult residents, and have improved residents’ Psychiatric Unit at Dobrota Special Psychi- living conditions.

Netherlands The CPT recommended that the Dutch that these boats used as facilities for holding authorities cease using the “Kalmar” and immigration detainees had been taken out of “Stockholm” boats for the detention of irreg- service. ular migrants, as they provided unsuitable conditions. In their response, the Dutch The Dutch authorities also responded posi- authorities indicated that the “Stockholm” tively to the CPT recommendation that boat had already been taken out of service measures be taken to allow detainees held in and that the “Kalmar” boat would have to solitary confinement on the “Kalmar” boat to remain open until the middle of 2011, when a have access to more suitable outdoor exercise new detention centre on the grounds of Rot- yards, and for shelters against inclement terdam Airport was scheduled to open. weather to be installed in all the exercise During its subesquent visit, the CPT noted yards.

European Convention for the Prevention of Torture 37 Serbia Following recommendations by the CPT as improving living conditions at the institution regards the Special Institution for Children and have allocated financial resources for the and Juveniles in Stamnica, the Serbian implementation of this plan. authorities have adopted an action plan for

Slovak Republic In 2005 the CPT reiterated its recommenda- cedure as amended in 2005, prior to the first tion to provide written information to all interrogation, the investigative authorities persons deprived of their liberty by the now must read and explain to the appre- police, on their rights, at the very outset of hended person his/her rights, and the latter their deprivation of liberty. Pursuant to Arti- must confirm on a form listing such rights cles 121, 122 and 34 of the Code of Penal Pro- that he/she has understood them.

Slovenia In order to address the issue of overcrowding allowing cells to be unlocked longer so that in Ljubljana Prison described by the CPT, the prisoners can also have access to corridors; Slovenian Prison Administration has increasing the amount of time prisoners can reported a number of measures: transferring spend outdoors; erecting a roof to make it prisoners to other prisons; changing the possible for prisoners to spend time outdoors intended use of other premises to rooms; even in less favourable weather conditions; daily monitoring of occupancy in rooms, increasing the possibilities for telephone con- with five being the maximum number of tacts from two to six days a week; increasing prisoners in a cell measuring 18 m²; relaxing the possibilities for participation in various regimes in the remand prison section by organised activities.

Turkey In several visit reports, the CPT recom- range of activities were possible. The pris- mended that Abdullah Öcalan, who was the oner is now able to participate in certain col- sole inmate of the prison on the island of lective activities following the transfer of five Imralı, be integrated into a setting where other prisoners to Imralı Prison. contacts with other inmates and a wider

Ukraine During its visit in 2009 at Correctional at both central and regional levels, have paid Colony No. 89, the CPT had received increased attention to the situation of numerous allegations of physical ill-treat- inmates held in the maximum-security unit ment of prisoners by staff, in particular in the and that action taken had started to bear maximum-security unit. The delegation’s fruit. Most prisoners with whom the delega- findings during the subsequent visit in 2012 tion spoke pointed to the significant changes suggested that there has been a definite in the attitude of staff towards them, notably improvement as regards the manner in which after dismissals or staff re-deployments fol- prisoners are treated by staff. It appeared that lowing the CPT’s previous visit. the penitentiary and prosecuting authorities,

United Kingdom In response to the CPT’s recommendation prisoners were not systematically accommo- that the necessary steps be taken to ensure dated in the segregation block; further, that all 17-year-olds detained by the police regardless of their location, they should all be are treated as juveniles and not as adults, the provided with a meaningful regime. In United Kingdom authorities responded that response, the United Kingdom authorities as part of the review of the Police and Crim- stated that since 7 May 2009 vulnerable Cate- inal Evidence Act 1984 the Government pro- gory A prisoners were being held on the Vul- posed to extend the definition of “juvenile” to nerable Prisoners (VP) unit where they have under 18. access to a much broader provision of serv- At Manchester Prison, the CPT recom- ices and facilities. VP Category A prisoners mended that steps be taken to ensure that were no longer held in the Segregation Unit. Category A vulnerable and own protection

Framework Convention for the Protection of National Minorities

Albania Albania has made efforts to develop its legis- on Personal Data Protection has been lative and other provisions with a view to adopted and a State Committee on Minori- improving the implementation of the Frame- ties was set up with the task to make recom- work Convention. Within this context, the mendations to the government in order to amended Criminal Code made racial moti- improve situation of persons belonging to vated offences an aggravating factor; the Law minorities.

38 Practical impact of the Council of Europe monitoring mechanisms Armenia Armenia has set up a new department minority languages in written and oral com- dealing with minority issues and introduced munication with the administration. legislation to guarantee the right to use

Austria A compromise between the Carinthian local system of bilingual education has been authorities and Slovene minority representa- extended to kindergartens and progress has tives with regard to bilingual topographical been made with regard to the availability and signs and the use of Slovenian as an official quality of minority language TV and radio language in areas with a mixed population broadcasting. was reached in June 2011. The successful

Azerbaijan Regional branches of Ombudsman’s office and conducted in line with internationally have been established which increases acces- accepted standards, including as regards the sibility of this institution for persons principle of free self-identification. At the belonging to national minorities. Some end of 2012, a call for tender directed at non- numerically small national minorities were governmental organisations for the financing registered as separate groups for the first time of projects identified the development of in the census of 2009, which was prepared national minority cultures as a priority field.

Bosnia and Comprehensive antidiscrimination legisla- been established at both State and Entity Herzegovina tion was enacted at State level in 2009. In levels as well as in these two cantons. addition to the national minority laws A population census including information already in force at State and Entity levels, broken down by ethnic affiliation, religion Tuzla and Sarajevo Cantons have adopted and language was held in October 2013 – the legislation with respect to national minori- first such exercise to be conducted since ties, and councils of national minorities have 1991.

Bulgaria Adoption of the Protection against Discrimi- crimination provides a clear legal anti-dis- nation Act together with the establishment of crimination basis, including in the field of the Commission for Protection against Dis- employment.

Croatia New legislative and other steps have been areas and to improve the implementation of taken to improve participation of national the constitutional law on national minorities. minorities in administration and other key

Cyprus Measures have been taken to enable Turkish equality and non-discrimination. Additional Cypriots to more effectively participate in measures have been taken to enable Turkish public affairs and social, economic and cul- Cypriots to more effectively participate in tural life. In view of the growing diversity of public affairs and social, economic, and cul- Cypriot society, efforts have been made to tural life. Practical steps have also been taken improve and complete the anti-discrimina- to support persons who have recently settled tion legislative and institutional framework in Cyprus and are not officially covered by and to increase awareness about human the Framework Convention. rights, tolerance, and the principles of

Czech Republic The use of minority languages in the public sphere has been advanced, including through new legislation governing this area.

Denmark The efforts to combat racism and racist vio- security service (PET) and guidelines have lence have been pursued and various been drawn up to encourage the reporting of schemes to promote cultural diversity and hate crimes. The adoption of specific meas- encourage tolerance are being implemented, ures, such as the employment of school in particular the Action Plan for Ethnic Equal mediators and appropriate additional Treatment and Respect for the Individual, tutoring, has enabled a reduction in absen- which was adopted in July 2010. Improve- teeism and dropping out of schools among ments have been made to the system of regis- Roma pupils as well as an improvement in tering racist incidents used by the Danish their performance at school.

Estonia Estonia removed language proficiency ified the right to communicate with govern- requirements from candidates to parliamen- ment officials in a minority language, tary and local government elections and clar- following related criticism expressed by the

Framework Convention for the Protection of National Minorities 39 Advisory Committee. The legislative frame- lowing concerted naturalisation campaigns, work for the promotion of equal treatment that targeted among others the under 15 year has been strengthened and the number of olds. non-citizens has considerably decreased fol-

Finland Finland has strengthened its legislative and oped. The National Policy on Roma was institutional anti-discrimination framework, adopted in 2009 and special efforts have been among others to better take account of made in 2011 and 2012 to support and instances of multiple discrimination. In addi- promote the language and cultural identity of tion, national and local Action Plans to the Sami. promote equal treatment have been devel-

Georgia The ratification of the Framework Conven- national minorities. The Government has tion has triggered a discussion regarding the stressed the need to promote tolerance and need for a more comprehensive national leg- integration through elaboration of the islative framework for the protection of Concept on tolerance and civic integration.

Germany Since the ratification of the Framework Con- adopted against the communication of infor- vention, the federal authorities have regularly mation to the media on the ethnic back- convened “implementation conferences” at ground of persons suspected of criminal which minority representatives have an offences. Financial support for the Founda- opportunity to discuss their concerns with tion for the Sorbian People was substantially local, regional and federal authorities. Meas- increased for the period 2009-2013 and ures have been taken by both central govern- agreement on funding to cover the transport ment and a number of Länder to end the use costs of pupils attending private Danish lan- of discriminatory or stigmatising language guage schools in Schleswig-Holstein found. within the police force. Rules have been

Hungary The launch of a new Hungarian national and the Promotion of Equal Opportunities. radio station has made it possible to The authorities have adopted legislative, broadcast national minority programmes in financial and educational measures to their own languages for twelve hours a day. improve the integration of Roma children An explicit ban on segregation at school was into the school system. introduced in the Law on Equal Treatment

Ireland Ireland has stepped up data collection related to minorities in a number of fields, including in connection with the population census.

Italy Several regions or provinces have adopted and bilingualism is guaranteed in areas such laws governing the protection of the lin- as the Autonomous Province of Bolzano – guistic minorities living in their territories South Tyrol and the Aosta Valley.

Latvia The procedure for the acquisition of citizen- with a summary provided in the minority ship by children of “non-citizens” was simpli- language. The Advisory Council on National fied in 2011 and 2013. In a number of regions Minority Education Matters is actively and institutions, pragmatic solutions have involved in ministerial discussions and been found to enable minority representa- policy development and the President has tives to submit correspondence in minority been regularly attending meetings of the languages and obtain a response in Latvian, Consulting Council on National Minorities,

Lithuania Important new pieces of legislation, such as discussed in the parliament. Efforts are made the Law on Education and the anti-discrimi- to address the socio-economic difficulties nation legislation have come into force. A faced by the Roma. new draft law on national minorities is being

Republic of A comprehensive anti-discrimination law and more “experimental schools” providing Moldova was adopted. Possibilities to be taught education in minority languages. minority languages have expanded through Moldova developed a range of agreements new minority language teaching textbooks aiming at developing cross border co-operation in the field of minority protection.

40 Practical impact of the Council of Europe monitoring mechanisms Montenegro The Law on the Prohibition of Discrimina- governmental organisations, was established tion was adopted in 2010. It provides reme- in 2011. dies to victims of discrimination through The electoral legislation has been amended courts and by way of applying to the Pro- in 2011 and 2012 to create favourable condi- tector of Human Rights. The Council for the tions for election of national minority depu- Protection against Discrimination, overseen ties to the Parliament. Political parties repre- by the Prime Minister and composed of senting national minorities may, by pooling senior ministers and representatives of non- of votes on a collective list, more easily reach the required threshold of 3 percent.

Netherlands The legal and institutional framework to crimination. The new Language Act recog- combat discrimination in the Netherlands nises Frisian as the second national language has been strengthened. The creation of the of the Netherlands and substantial efforts Netherlands Institute for Human Rights, the have been made to provide persons active role of the Ombudsman, the develop- belonging to the Frisian minority with ment of a local system of monitoring and increased opportunities to learn the Frisian reporting of discrimination in each munici- language in all levels of education. An pality as well as new measures adopted to enhanced intercultural content, including on tackle the problem of intolerance on the the Frisian language and culture, has been Internet, reflect the will of the Dutch author- included in the general education curricula. ities to fight firmly against all forms of dis-

Norway An Action Plan (2009-2012) for Equality and ticular with the establishment of the Com- Prevention of Ethnic Discrimination has mission for Romani/Taters. Norway con- been developed and an educational project to tinues to support by annual financial promote the social inclusion of the Roma in subsidies the educational and cultural activi- different spheres of life is being implemented ties organised by the representatives of in Oslo. The efforts made in recent years to national minorities. Additional measures remedy the injustices committed under the have also been taken to revitalise and to past policies of assimilation against the promote the Kven culture, such as the stand- Romani/Taters have been intensified, in par- ardisation process of the Kven language.

Poland An Anti-Discrimination Act was adopted in Equality. The Act defines the respective roles 2010, to strengthen further prior legislation of the Commissioner for Civil Rights Protec- adopted to implement the EU Directives on tion (Ombudsman) and the Government Racial Equality and on Employment Plenipotentiary for Equal Treatment.

Romania The Law on Education adopted in 2011 has tongue at all levels of pre-university educa- provided Romania with a more detailed legal tion. Schools or classes with education in the framework for education and established minority language can be established upon legal guarantees for persons belonging to request of parents or legal guardians, without national minorities. The law stipulates that identifying any minimum threshold of the persons belonging to national minorities number of children required. have the right to be educated in their mother

Russian Federation Following concerns expressed by the Advi- Russian Federation. A comprehensive sory Committee, legislation prohibiting the Concept Paper on the Sustainable Develop- use of minority languages in all federal radio ment of Numerically Small Indigenous and TV broadcasting was amended to allow Peoples of the North, Siberia and Far East radio/TV companies to broadcast at the was adopted in 2009. An Action Plan on federal level in the languages of minorities. Socio-Economic and Cultural Development Substantial efforts have been made to reduce of Russian Roma was adopted at federal level the number of stateless persons in the in February 2013.

Serbia The 2009 Law on the Prohibition of Discrim- amended to ensure the adequate protection ination has significantly strengthened the of these rights. There have also been a legal framework in place regarding protec- number of important institutional develop- tion from discrimination on grounds rele- ments, including the election of national vant to persons belonging to national minor- minority councils in 2010 based on the 2009 ities. A number of laws having a particular Law on National Councils of National impact on the rights of persons belonging to Minorities. national minorities have been enacted or

Framework Convention for the Protection of National Minorities 41 Serbian public media has broadened its pro- gramming in minority languages.

Slovak Republic The anti-discrimination legislation has been redress social and economic inequalities and further improved and the competences of the disadvantages faced by persons belonging to national equality body extended. Positive vulnerable groups. measures have been introduced aiming to

Slovenia Legislation has been enacted laying down a the responsibilities of the various levels of clearer definition of the specific rights authorities responsible for implementing granted to the Roma minority and clarifying these rights.

Spain The authorities at state and regional levels nities for the Roma. The Institute of Roma have continued to develop long-term policies Culture was established in 2007 to promote and programmes to promote equal opportu- Roma culture, history and language.

Sweden The Sami are now recognised at constitu- national minorities to have an impact in deci- tional level as an indigenous people. sion-making on issues of concern to them. The adoption of the National Minorities and More children are also entitled under this National Minority Languages Act and the legislation to pre-school activities in Language Act has expanded the geographical minority languages and the conditions for areas in which the Finnish, Meänkieli and access to minority language schooling have Sami languages can be used in contacts with been relaxed. the administrative authorities and increased Comprehensive antidiscrimination legisla- the opportunities for persons belonging to tion has also been enacted.

Switzerland The legal and institutional framework con- national minorities entered into force: the cerning the protection of national minorities 2010 Federal Law on the National Languages has been considerably improved since the and Understanding between the Linguistic last monitoring cycle. Two new important Communities (LLC) and the 2012 Federal laws relevant to persons belonging to Law on the Promotion of Culture (LEC).

“The former The Anti-discrimination Law was adopted in protection against discrimination and estab- Yugoslav Republic April 2010 and the Commission for Protec- lishes a judicial procedure for its enforce- of Macedonia” tion Against Discrimination has been estab- ment. lished. The law provides a clear legal basis for

Ukraine The rights contained in the Framework Con- adopted in 2013. Changes were introduced in vention have been extended to cover groups 2010 to offer final examinations in minority such as Boikos, Hutsuls and Rusyns and new language schools in the language of schooling legislation concerning minorities is being and some pedagogical centres for the prepared. Anti-discrimination legislation teaching of minority languages have been was adopted in 2012 and a Strategy for the created. Protection and Integration of Roma was

United Kingdom A new comprehensive Equality Act was The authorities continue to collect extensive enacted in 2010 and includes innovative equality data in order to evaluate the needs of approaches and provisions that could persons belonging to minority ethnic com- advance the protection of minority ethnic munities and improve policies and measures communities. aimed at combating direct and indirect discrimination.

Kosovo The Croat and Montenegrin communities going. Substantial progress has been made All reference to Kosovo, were officially recognised as minority com- related to the preservation and protection of whether to the territory, munities through amendment of the relevant cultural and religious sites and a fund for institutions, or population, legislation in December 2011. The Roma IDP support to minority media has been consti- in this text shall be camp ‘Osterode’ was closed at the end of 2012 tuted and is disbursing grants to selected understood in full and all remaining residents have been reset- beneficiaries. A comprehensive community compliance with United Nations Security Council tled. Comprehensive and ambitious policy policing strategy was adopted in 2012. The Resolution 1244 and documents for the integration of the Roma, Office of the Language Commissioner was without prejudice to the Ashkali and Egyptian communities have put in place with the mandate to oversee and status of Kosovo. been adopted and implementation is on- promote implementation of the language leg-

42 Practical impact of the Council of Europe monitoring mechanisms islation, including an effective complaints mechanism.

European Charter for Regional or Minority Languages

Armenia Armenia has produced more textbooks for the teaching of the Assyrian, Kurdish and Yezidi languages in schools.

Austria Austria amended its Broadcasting Act in mandate of the ORF. It also established a legal 2001 and included the provision of minority basis allowing the ORF to co-operate with language programmes in the public service private broadcasters in this respect.

Croatia The Charter has enhanced minority language guages and Scripts of National Minorities in rights in Croatia and contributed to the 2000. adoption of the Act on Education in the Lan-

Cyprus Cyprus recognised Cypriot Maronite Arabic recommendation. Ever since, a language as a regional or minority language under the revitalisation process has begun and the lan- Charter following a Committee of Ministers’ guage has been codified.

Czech Republic In order to facilitate the implementation of Moravian Croatian has been recognised as a the Charter, the Czech government allocated regional or minority language in terms of the funds to municipalities for the instalment of Charter (Part II). bilingual (Polish-Czech) signs in the Karviná and Frydek-Místek districts.

Denmark As recommended by the Committee of Min- The Danish authorities also supported radio isters, Denmark adopted a number of special broadcasts in German following a recom- arrangements to ensure the protection of the mendation by the Committee of Ministers. German language after the municipal reform Pursuant to the respective provision of the in Southern Jutland/North Schleswig. In par- Charter, the regional hospital of Southern ticular, financial grants from the municipali- Jutland now offers its patients the possibility ties and Southern Jutland County for cultural to communicate in German with the hospital activities were maintained. staff.

Finland Following ratification of the Charter, the In the Upper Lapland Regional Office lan- Sámi Language Act was adopted. It aims to guage training has been offered to increase ensure the right of the Sámi to develop their the number of Sámi-speaking officials who language and culture and to use it in relations are needed to implement obligations under with judicial and administrative authorities. the Charter and the Sámi Language Act.

Germany In 2004, the Land of Schleswig-Holstein minority languages spoken in their coverage adopted a law for the promotion of North area. Lower Saxony’s 2011 decree “The Frisian in public life containing provisions Region and its Languages” provides for the concerning, inter alia, the use of North possibility of regional or minority language Frisian in relations with administrative education, leading, in most cases, to bilingual authorities and the employment of Frisian- education. speaking civil servants. In 2012, the Free State of Saxony adopted an In 2010 the authorities amended the Lower Action Plan to Encourage and Revive the Use Saxony Media Act. The law now requires of the Sorbian Language, aimed at increasing broadcasters to include in an adequate the knowledge of and about Upper Sorbian, manner in their programme the regional and and its use in public life.

Hungary Hungary amended the Act on Criminal Pro- writing, a minority language, that inter- cedure (2002), the Act on Civil Procedure preters shall be employed if the person (2002) and the Act on the General Rules of wishes to use a minority language, and that Official Procedure and Servicing in Public translation and interpretation costs shall be Administration (2004), as recommended by borne by the state. These provisions have the Committee of Experts. The amendments ever since been invoked by persons clarified that everyone may use, orally and in belonging to national minorities.

European Charter for Regional or Minority Languages 43 The availability of transport for pupils to national minorities (bodies of cultural schools where a minority language is taught autonomy). has improved, thus contributing to the main- Furthermore, a public radio channel exclu- tenance of minority language education in sively devoted to broadcasting in minority rural areas. Also, more minority schools have languages was created (Radio MR4), been taken over by self-governments of including daily radio programmes in Beás and Romani.

Netherlands Ratification of the Charter marked the legal even outside the territory of the Province of recognition of Limburgish, Low Saxon, Friesland. Romani and Yiddish. A new decree on family names entered into force in 2003, permitting the use of Frisian The Dutch authorities have taken several names in official documents. steps to facilitate and encourage the use of In addition, the Friesland province has been Frisian before judicial authorities, including granted the competence to issue, in consulta- the organisation of courses in Frisian for new tion with the national authorities, an educa- court employees and judges. Frisian speakers tion curriculum which also regulates Frisian- have the right to use their language in court language education.

Norway The Inner Finnmark court was established as As part of the implementation of the Charter, the country’s only bilingual court in 2004, a pool of experts in Sámi language and infor- serving the Sámi language administrative mation technology was established, which area. advises public administration on issues such as legislative documents in Sámi and Sámi Norway has modified the Health-Care Per- spelling. sonnel Act and taken measures in the health Following a recommendation by the Com- and social sector within the Sámi administra- mittee of Ministers, Norway recognised Kven tive district to provide staff having a as a language in its own right and subse- command of Sámi. quently set up the Kven Language Council.

Serbia The high legal status granted to Romani public image of this language. In addition, it under the Charter (Part III) has contributed prepares the co-official use of Romani by to the improvement of the largely negative municipalities.

Slovakia The Slovak Republic made significant under- lished in accordance with the provisions of takings under the Charter to promote the the Charter. Bulgarian, Croatian and Polish languages. In Furthermore, complaints to the Public 2001, a governmental Council for National Defender of Rights can also be submitted in Minorities and Ethnic Groups was estab- the minority languages covered by the Charter.

Slovenia By ratifying the Charter, Slovenia entered promote the autochthonous Croatian, into the legal obligation to protect and German and Serbian languages in public life.

Spain In 2010, the Parliament of Catalonia granted Aranese the status of a co-official language in the whole territory of Catalonia.

Sweden Ratification of the Charter marked the first Sámi is spoken is now included in the Sámi legal recognition of Yiddish. Furthermore, it administrative area. led to the adoption of the Act on the Right to use Sámi in Administrative Authorities and The Language Act adopted in 2009 estab- Courts of Law and the Act on the Right to use lishes the responsibility of the public sector to Finnish and Meänkieli in Administrative protect and promote the languages of the Authorities and Courts of Law in 1999. national minorities and gives these minori- Further to recommendations made by the ties the opportunity to learn, develop and use Committee of Experts, Sweden extended the their languages. administrative areas in which the Finnish and Sámi languages can be used in relation In 2011, the Education Act entered into force, with the administration and branches of defining the use of minority languages in public services in 2009. The area where South pre-schools.

44 Practical impact of the Council of Europe monitoring mechanisms Ukraine In 2012, the Parliament of Ukraine adopted State Language Policy”, replacing the former the “Law of Ukraine On the Principles of Soviet language law of 1989.

United Kingdom Ratification of the Charter was the first step Also, the authorities have suggested a Code towards official recognition of Scots and of Courtesy when dealing with regional or Cornish as regional or minority languages. minority language speakers. Following a recommendation by the Com- mittee of Ministers in 2004, a broadcasting The Cornish-speakers have agreed on a license was issued to the Irish-language radio common orthography for the public use of station Raidió Fáilte in Northern Ireland. Cornish.

European Commission against Racism and Intolerance

General changes

ECRI has helped set up institutions and racial discrimination has been widely used in develop laws and practices to combat racism, legislative reforms as a yardstick against racial discrimination, xenophobia, which to measure the adequacy of national- antisemitism and intolerance. law provisions. In recent years Albania, the Today most member States – drawing inspi- Republic of Moldova, Poland and Serbia have ration inter alia from ECRI’s General Policy adopted comprehensive anti-discrimination Recommendation (GPR) No. 2 – have estab- legislation. Other countries such as Bulgaria, lished independent bodies whose mandate Croatia, Cyprus and San Marino have includes the fight against discrimination on strengthened their criminal law provisions. grounds such as “race”, colour, language, reli- ECRI now contributes to the fine-tuning of gion, citizenship and national or ethnic these legal instruments. It also promotes the origin (specialised bodies). ECRI’s GPR No. 7 ratification of Protocol No. 12 to the ECHR. on national legislation to combat racism and So far, 18 states have ratified it.

Country-specific examples

Albania In February 2010, Parliament enacted the law convictions, language and ethnic origin. It on protection against all discrimination. It also established the institution of the Com- covers discrimination in the public and missioner on the Protection against Discrim- private sector based on race, colour, religious ination.

Andorra On 6 May 2008 Andorra ratified Protocol judges and prosecutors. In 2010 a National No.12. The authorities have also taken meas- Equality Commission was set up in order to ures to encourage the judiciary to apply it, address anti-discrimination issues and to such as training in fundamental rights for implement a Plan for Equality.

Armenia Legislation facilitates the setting up of kin- A new law on Refugees and Asylum has been dergartens in communities where ethnic enacted and all its implementation decrees minorities live. There are no longer limits on have been drafted. All persons enjoying tem- the amount of time private broadcasting sta- porary protection have been granted refugee tions may spend on ethnic-minority pro- status. grammes.

Austria In 2010, the Austrian Press Council was re- race, religion, gender, national origin or any established to enforce compliance with other ground. In 2011 legislation was enacted ethical standards and rules of conduct. The providing that the Ombudspersons cannot Council has adopted a code of honour, which receive instructions and are autonomous and provides guidance on topics such as the pre- independent. vention of discrimination on the basis of

Belgium In June 2013, a Circular was adopted, which transphobia. The Belgian courts have begun provides for the designation of contact using the option under the Anti-racism and persons within the national and local police Anti-discrimination Acts to suspend the civil responsible for racism, homo- and and political rights of persons convicted for

European Commission against Racism and Intolerance 45 racism or racial discrimination, including hate speech.

Croatia The Constitution was amended to recognise hate motivation is an aggravating factor in the existence of 22 national minorities in the determination of the penalty. Croatia. The Criminal Code was revised;

Czech Republic In July 2011, the government adopted a new riers to access to existing flats and strengthen nine-year policy, which aims to improve the legal framework for social housing. This access to housing for groups at risk of social is expected to become a tool for combating exclusion. The authorities will support the discrimination of Roma in this field. construction of flats, strive to remove bar-

Georgia In 2013, ECRI was asked to review the draft Law on the Elimination of All Forms of Dis- crimination.

Germany Germany has ratified the Additional Protocol had been recommended by ECRI in its GPR to the Convention on Cybercrime, an inter- No. 6 of 15.12.2000. Anti-discrimination national instrument the adoption of which agencies have been set up in several Länder.

Republic of On 25 May 2012 a new law was enacted guar- January 2013, the Council to Prevent and Moldova anteeing equality and setting up, as from 1 Combat Discrimination and Ensure Equality.

Monaco Sovereign order No. 4 524 was published in of discrimination are given the right to bring 2013 setting up the office of the High Com- a complaint before the High Commissioner. missioner on the Protection of the Rights, Several conferences and training sessions on Civil Liberties and Mediation. Physical and human rights and racism were held in 2012 legal persons claiming to have been victims and 2013 for judges and police officers.

Netherlands New detailed instructions were issued by the and monitoring of racism and discrimina- Public Prosecution Service providing for: the tion; and cooperation with local government. appointment of regional prosecutors and The instructions also highlight the need for a police officers specialised in dealing with dis- firm response by the competent authorities crimination and racist offences; the obliga- to breaches of criminal law provisions against tion for the police to register all offences with racism. racist motivation; the systematic detection

Poland Parliament enacted the Anti-discrimination Human Rights Defender and the Govern- Act, which entered into force on 1 January ment Plenipotentiary for Equal Treatment 2011. It prohibits discrimination based on with the task of “implementing the principle sex, race, ethnic origin, nationality, religion, of equal treatment”. belief or sexual orientation and entrusts the

Russia Large numbers of persons were granted citi- criminal prosecutions for hate crime has zenship. Regional ombudsmen exist in 71 out increased, law-enforcement authorities tar- of 83 constituent entities. Criminal law now geting the most aggressive ultranationalist provides that racial hatred or enmity is an groups. aggravating circumstance. The number of

San Marino New provisions against discrimination based the Criminal Code. The divulgation, by any on racial, ethnic, religious and sexual orien- means, of ideas based on superiority or racial tation and incitement thereto were added to or ethnic hatred is also a criminal offence.

Serbia On 26 March 2009 a law was enacted prohib- the Commissioner for the Protection of iting discrimination on the grounds of skin Equality was elected. He is entrusted with colour, citizenship, national affiliation or monitoring compliance with the 2009 law. ethnic origin, language and religious beliefs. His powers include taking action when cases It covers discrimination as well as victimisa- of discrimination occur and to bringing cases tion, racist organisations, hate speech, har- to court. assment and humiliating treatment. In 2010,

46 Practical impact of the Council of Europe monitoring mechanisms Slovenia On 7 July 2010 Slovenia ratified Protocol No. 12 to the ECHR, with entry into force on 1 November 2010. Spain A new Plan for Roma Development has been combat cybercrime. The General State Prose- adopted for 2012-2020. There are several cution Service provides training programmes programmes to eradicate slums and relocate on the principles of equality and non-dis- the inhabitants to standard housing and crimination to law-students. By law, those some cities no longer have any slums. Spe- applying for any civil-service post have to sit cialised prosecutors have been appointed to an examination on, inter alia, the principle of protect victims of crime and others to equality.

Switzerland The impact of integration agreements has integrations programmes for 2014-2017. The been assessed. A system of 35 core indicators cantons and local authorities have committed is being set up, which will help measure the themselves to setting up specialised services, degree of migrants’ integration. In 2011, the which will provide legal advice against dis- Confederation and the cantonal govern- crimination. ments fixed eight key areas for the cantonal

Turkey The Law on Foreigners and International Law No. 6 328, enacted in June 2012, an Protection No. 6 458 was enacted on 4 April Ombudsman’s Office was established. It can, 2013. Persons who apply for or who are upon receipt of a complaint, examine, inves- granted international protection receive an tigate and make recommendations to public identification document free of charge. By authorities.

United Kingdom All local authorities in England have com- the authorities announced the investment of pleted the Gypsy and Traveller Accommoda- £ 60 000 000 to help local authorities and tion Assessments. Decision-making has been other providers with the cost of new traveller delegated to local authorities. In April 2012, pitches until 2015.

Council of Europe Convention on Action against Trafficking in Human Beings – GRETA

Austria GRETA asked the Austrian authorities to all relevant ministries, the Länder, NGOs and adopt a proactive approach to the identifica- social partners. The Working Group has tion of victims of trafficking for the purpose focused on reviewing the indicators for of labour exploitation and to clarify what labour exploitation and improving their could constitute exploitation in the field of applicability in order to better assist the rele- labour. vant authorities in the identification of Following GRETA’s recommendation, a victims of trafficking for the purpose of Working Group on Labour Exploitation was labour exploitation. set up in 2012. It comprises representatives of

Bulgaria GRETA recommended that the Bulgarian Following GRETA’s recommendations, six authorities design training programmes with multidisciplinary trainings for judges, prose- a view to improving the knowledge and skills cutors and law enforcement officers were of relevant professionals which enable them organised in 2012, as well as several trainings to identify victims of trafficking and to assist for social workers. Training was also pro- and protect them. vided to staff working in crisis centres for children.

Cyprus GRETA called upon the Cypriot authorities human beings, regardless of whether this to ensure that no additional conditions of person is damaged by the commission of the damage or loss are required from a person offence of THB. who had been subjected to THB in order to qualify as a victim of THB and to benefit GRETA invited the Cypriot authorities to from assistance and protection measures. increase the human and financial resources Following GRETA’s recommendations, the of the Police Office for the Prevention and definition of “‘victim of THB” was changed Combating of Human Trafficking so that it in the national legislation to include any can effectively carry out the full range of natural person subjected to trafficking in tasks within its mandate.

Council of Europe Convention on Action against Trafficking in Human Beings – GRETA 47 The number of the members of the Office has potential THB-related risks during the visa increased to 8 persons, including police application system. investigators, a forensic psychologist, a psy- On 27-28 February 2013, a two-day training chologist, a criminologist and a social addressed to members of the Consular Staff worker. took place in Nicosia. As a result, a checklist to identify potential THB-related risks GRETA recommended that the Cypriot during the visa application system was pre- authorities introduce a checklist to identify pared by the Cypriot Police.

France GRETA called upon French authorities to forced labour or services, servitude, and amend the definition of trafficking in human slavery. beings in the Criminal Code. Further, pursuant to GRETA’s recommendation, the French authorities have set up an In line with GRETA’s recommendation, the inter-ministerial task force for the fight definition of THB in the Criminal Code was against human trafficking in order to ensure amended by a law of 6 August 2013 to include national co-ordination, in line with the Con- expressly among the forms of exploitation vention.

Republic of GRETA urged the Moldovan authorities to relevant actors. The guidelines include direct Moldova enhance efforts to identify victims of human as well as indirect indicators and describe the trafficking. identification and referral process. The The Government has developed new guide- guidelines have been distributed inter alia to lines which are obligatory for all public insti- labour inspectors and Moldovan consular tutions at central and local level and other staff abroad.

Slovak Republic GRETA called upon Slovak authorities to Following GRETA’s recommendation, the take the necessary legislative and practical Act on Compensation to Violent Crime measures to ensure that compensation is Victims was amended in 2013. The Ministry made available to all victims of THB, irre- of the Interior in co-operation with the Min- spective of their nationality and residence istry of Justice has drawn up an information status. sheet for victims of trafficking on the avenues for compensation.

Council of Europe Commissioner for Human Rights

Improvements in the area of human rights are often the result of a combination of factors, including suggestions from several actors. The following are examples of changes to which the Commissioner has contributed:

Albania In his 2012 letter to the Minister of Justice of amendments to the Law on Legal Aid were Albania, the Commissioner expressed his enacted which tasked the State Commission concern about the system of court fees in civil for Legal Aid with granting exemptions from and enforcement proceedings, notably as the payment of court fees, under certain con- concerns the obligation of payment up front. ditions, by persons with insufficient financial The Commissioner’s letter was taken on resources. board by the authorities and in May 2013

Andorra In June 2012, following the Commissioner’s Europe Convention on the Protection of recommendation made after his visit in Feb- Children against Sexual Exploitation and ruary 2012, Andorra signed the Council of Sexual Abuse.

Armenia The need to introduce a genuine alternative service, defined a broad-based composition service option and to release all imprisoned of an inter-agency government committee conscientious objectors has been repeatedly that reviews applications for alternative raised by the Commissioner, e.g. in the last service, and prohibited military supervision report on Armenia published in May 2011. In over alternative civilian service. In November June 2013, the new amendments to the law 2013 the Commissioner was informed about on Alternative Military Service entered into the release of all convicted conscientious force. They reduced the terms of alternative objectors under the amended provisions. military service and alternative civilian

48 Practical impact of the Council of Europe monitoring mechanisms Austria Following up specifically on a recommenda- National Human Rights Action Plan could tion contained in the Commissioner’s report usefully complement the action plans cur- on Austria published in September 2012, the rently in place in Austria in specific human Austrian authorities undertook to consider rights areas. whether the preparation of an overarching

Belgium In January 2012 the Belgian Conseil du Con- the Commissioner’s report concerning, inter tentieux des Etrangers (CCE) suspended the alia, the law and practice relating to refugee transfer of an asylum seeker to Malta on the reception and protection in Malta, published basis of the “Dublin Regulation”. One of the in June 2011. reference documents used by the CCE was

Bosnia and The Commissioner’s findings and recom- matter. The court ordered the authorities to Herzegovina mendations relating to segregation in schools take adequate measures to put an end to the along ethnic lines contained in his 2008 and system of ‘two schools under one roof’ in line 2011 country reports were referred to in the with the Commissioner’s recommendations. April 2012 judgment of the Municipal Court in Mostar that decided on this subject-

Czech Republic The Commissioner recommended in his isation of acts of a racist or xenophobic 2010 country report that the Czech Republic nature committed through computer sys- ratify the Additional Protocol to the Conven- tems. In May 2013 the Czech Republic tion on Cybercrime concerning the criminal- acceded to this instrument.

Estonia The Commissioner’s 2007 follow-up report sioner’s 2013 report on Estonia noted that the on Estonia urged the Estonian authorities to State Legal Aid Act was modified in 2010 and seek the advice of the Bar Association to that the Estonian Bar Association was resolve difficulties with the implementation responsible for providing legal aid and of the free legal aid mechanism under the appointing legal counsel. In 2012, the legal 2005 State Legal Aid Act. The Commis- aid budget was increased significantly.

Finland The Commissioner’s 2006 follow-up report Trafficking in Human Beings. Finland signed on Finland encouraged the Government and the Convention in August 2006 and ratified it the Parliament to sign and ratify the Council in May 2012. of Europe Convention on Action against

France In December 2012 a Law abolished the possi- In April 2009, the Tribunal Administratif de bility to prosecute individuals and organisa- Paris (TAP) suspended a transfer to Greece tions that provide humanitarian and legal aid and ordered the French authorities to to irregular migrants in support of the latter’s examine the applicant's claim for asylum. dignity and physical integrity. This Law put The court stated that where the French an end to the prosecution of migrant rights authorities believed that the receiving state defenders (“délit de solidarité”), about which would not guarantee the applicant's right to the Commissioner had expressed his concern seek asylum, the French authorities should on several occasions. invoke the sovereignty clause (“Dublin Regu- In July 2010 the Ministry of Justice lation”) to examine the case. The court found announced an “unprecedented modernisa- that the situation in Greece gave rise to such tion plan” for the French prisons. The plan was intended to address issues raised in a a belief. The Commissioner’s 2008 report on number of relevant international reports asylum in Greece was referred to by TAP in including the 2008 one by the Commissioner. support of this decision. Similar decisions According to the plan, 23 old prisons were to were rendered by the TAP, in July and be closed and replaced by modern ones December 2009, referring again to the Com- mainly between 2015 and 2017. missioner’s report.

Georgia Following the prison abuse scandal which Ombudsman, the CPT as well as his own came to light in September 2012, the Com- institution, and urged that effective investiga- missioner addressed a letter to Prime Min- tions be undertaken into ill-treatment by ister Bidzina Ivanishvili, emphasising that the public officials. In his response to the Com- issue of ill-treatment and impunity was a missioner’s letter, the Prime Minister long-standing concern which had been informed the Commissioner about the raised repeatedly by the Georgian reforms planned for the prison system. In

Council of Europe Commissioner for Human Rights 49 response to the report of the CPT report fol- the powerful role played by the prosecutor in lowing its November 2012 visit to Georgia the negotiation of plea agreements. He also (published in July 2013) which raised issues encouraged, wherever possible, the use of related to the above-mentioned prison abuse alternatives to detention on remand. scandal, the Georgian Government indicated According to the monitoring of criminal that a number of guilty verdicts in the cases courts implemented by the Georgian Young concerned had been delivered by courts in Lawyers Association (GYLA) from January Tbilisi and Kutaisi in June 2013, and that to June 2013 (published in October 2013), several other investigations into ill-treatment criminal courts were displaying a ‘’slightly of prisoners by prison officials were on- greater objectivity’’ and showed ‘’less incli- going. nation’’ towards the use of custodial sanc- The Commissioner’s July 2011 report on tions during pre-trial investigation. The administration of justice in Georgia stressed monitoring also revealed a reduction in the inter alia the need to increase public trust in number of plea agreements and in the the judiciary and cautioned against excessive amount of fines imposed in this context. reliance on plea bargaining, bearing in mind

Greece By his April 2013 report on Greece the Com- In May 2009 the Commissioner wrote to the missioner stressed the need to effectively Greek authorities and drew their attention to sanction individuals and political organisa- the cases of 37 former Greek citizens who tions, including political parties such as the were reportedly stateless in Tashkent, neo-Nazi party “Golden Dawn”, involved in Uzbekistan. They had left Greece during or racist and other hate crime. In September after the 1940s’ civil war and had been 2013 the Greek authorities initiated the pros- granted refugee status by the former Soviet ecution of the leader and a number of Union, a status that they lost after 1991. In members of the above party for involvement their reply, the Greek authorities informed in a “criminal organisation”. Also in the Commissioner that they had managed to November 2013 a new law was promulgated locate the vast majority (25) of the above that provides for the suspension of state persons and to examine their individual situ- funding to political parties subjected to this ation. As of October 2009 five persons had kind of criminal proceedings. acquired Greek nationality.

Hungary In February 2010 the Parliament passed a Bill 2009, where it was stressed that freedom of that prohibits denials of the Holocaust. This expression has limits given that it carries with was in accordance with the recommenda- it duties and responsibilities for the protec- tions contained in the Commissioner’s letter tion, inter alia, of the reputation or rights of to the Prime Minister, dated 22 October others.

Iceland The Commissioner’s 2005 report on Iceland landic legislation and rules for the appoint- raised concerns about the independence of ment of judges were reformed in May 2010. the judiciary and the preponderant role of The amendments reinforced the independ- the Government Minister competent for ence, powers and composition of the evalua- judicial affairs in appointing judges, tion committee and laid out objective criteria including Supreme Court justices. The Ice- for appointments to the judiciary.

Italy In reports published in 2011 and 2012, the and international attention to the destitution Commissioner drew attention to the lack of faced by many refugees and other benefici- policies for the integration of beneficiaries of aries of protection. The Italian authorities international or humanitarian protection in announced that they will substantially Italy, as well as access to housing and social increase the capacity of their reception care for this vulnerable group. The Commis- system for refugees, in line with the Commis- sioner's interventions heightened national sioner's recommendations.

Liechtenstein In December 2008, as announced by the viding for the prohibition of corporal pun- Prime Minister in reply to the Commis- ishment, psychological harm and other sioner’s 2007 letter, a law was adopted pro- degrading treatment of children.

Luxembourg Following a Commissioner’s letter of May ment, Luxembourg adopted in December 2007 requesting the government to look into 2008 a law that prohibited corporal punish- the legislation concerning corporal punishment of children within the family.

50 Practical impact of the Council of Europe monitoring mechanisms Republic of The Commissioner raised concerns about ill- missible in principle. In 2012, Parliament Moldova treatment and impunity for serious crimes passed amendments to the Criminal Code committed by law-enforcement officials in which abolished provisions concerning the the Republic of Moldova, in particular in statute of limitations for torture and prohib- relation to the April 2009 events. In this con- ited granting of amnesty to persons sen- nection, he underlined that criminal pro- tenced for torture. The penalties for torture ceedings initiated against law enforcement have also been increased and suspended sen- officers on grounds of torture or ill-treatment tences in such cases are no longer possible should not be time-barred and the granting under the revised framework. of an amnesty or pardon should not be per-

Netherlands The Commissioner’s 2009 report on the bill that amends gender registration legisla- Netherlands urged the Dutch authorities to tion. Under the new legal provisions, medical abolish the legal condition of sterilisation treatment is no longer a prerequisite for the and other compulsory medical treatment as a legal recognition of the gender identity of requirement for the legal recognition of a transgender individuals, and the condition of person’s gender identity. In May 2013, the infertility that applied to both men and Dutch House of Representatives adopted a women has been abolished.

Portugal In November 2010 Portugal adopted legisla- change was fully in line with the Commis- tion on transgender persons’ gender recogni- sioner’s position expressed in his letter to the tion. Under the new law the preferred gender Portuguese Minister of Justice earlier in 2010 can be obtained using a standardised admin- and his Issue Paper Human Rights and istrative procedure within eight days. This Gender Identity.

Russian Federation Following his visits to the Russian Federation recommendations to the authorities was to in October 2012 and April 2013, the Com- refrain from any further steps in relation to missioner published his “Opinion on the leg- the application of the Law on Foreign Agents islation of the Russian Federation on non- before the shortcomings in the law and its commercial organisations in light of Council application are rectified; the Commissioner of Europe standards”. This document has also invited the Constitutional Court to con- been used for litigation before the national tribute to the revision process. In a recent courts by local NGOs and their legal repre- court hearing concerning the NGO Memo- sentatives. In most of those cases, the Russian rial (Moscow), the judge decided to postpone courts ruled against the requests by the Pros- the hearing, pending the decisions of the ecutor’s Office to apply the “Law on Foreign Constitutional Court and the European Agents” against various non-governmental Court of Human Rights. organisations. One of the Commissioner’s

Serbia Following his visit to Serbia in June 2011, the amendment. This law is particularly relevant Commissioner urged the authorities to intro- for many Roma living in Serbia who do not duce an amendment to the Law on Residence have permanent residence. The Commis- and provide that persons who do not have sioner’s recommendation was prepared in registered residence would get temporary close co-operation with the Serbian identity documents containing the address of Ombudsman who has been actively involved the nearest social care centre. In November in the above legislative procedure. 2011 the Serbian parliament adopted this

Spain In February 2010 the Spanish Ombudsman vention of torture at the domestic level. Fol- was designated as a national preventive lowing a visit of the Commissioner to Spain mechanism under the Optional Protocol to in June 2013, during which the latter high- the UN Convention against Torture. By his lighted the impact of austerity measures on Viewpoint entitled “The protection against children’s rights, the Ombudsman initiated torture must be strengthened” (18 February an ex officio investigation on problems of 2008) the Commissioner had encouraged nutrition faced by children as a result of aus- member states to establish fully independent terity measures and the economic crisis. national preventive mechanisms for the pre-

Switzerland In March 2012 the Office federal de l’état civil struction for gender recognition. One of the made public a legal opinion on transexual- reference documents referred to in the above isme by which it advised the courts not to opinion was the Commissioner’s study on require sterilisation or surgical genital recon- LGBT persons published in 2011.

Council of Europe Commissioner for Human Rights 51 Turkey Following the Commissioner’s 2009 visit and The Commissioner’s reports on freedom of Report on human rights of asylum seekers expression (July 2011) and the administra- and refugees, the Turkish authorities exam- tion of justice (January 2012) in Turkey had a ined the living conditions of foreign very strong impact on the public debate on nationals coming from conflict areas who are these issues in the country. The Turkish Min- in need of international protection. Measures ister of Justice publicly expressed his govern- were taken in spring 2010 to improve their ment’s commitment to addressing the short- situation in particular by providing residence comings highlighted in the report. The documents and access of their children to recommendations directly fed into a concrete education. Subsequently, the Commissioner’s action plan endorsed by the government and Office directly contributed to a process representatives of the judiciary, as well as a which culminated in the adoption in April comprehensive CoE training programme for 2013 of Turkey’s first Foreigners and Interna- judges and prosecutors, and were taken into tional Protection Act, which introduces a account for the purposes of two legislative new legal framework on migration, asylum reform packages adopted by the Turkish Par- and international protection including many liament. improvements in line with the Commis- sioner’s recommendations

Ukraine Following his visit to Ukraine in November in the areas outlined as problematic by the 2011, the Commissioner published in Feb- Commissioner in his report. Most notably, ruary 2012 a report on the situation in the the new Criminal Procedure Code entered judiciary and made a number of recommen- into force in November last year. The Gov- dations as to the future directions in the ernment has also prepared a draft law on the reform process. Several comprehensive Prosecutor’s Office, which is currently reform efforts are currently underway and pending in the Parliament. the government is taking a number of steps

Kosovo Of particular concern to the Commissioner This issue was addressed in the Commis- All reference to Kosovo, has been the situation of the Roma, Ashkali sioner’s 2009 report and the 2009 letter to the whether to the territory, and Egyptian communities living in the two Special Representative of the UN SG in institutions, or population, lead-contaminated camps in northern Mitro- Kosovo. The Commissioner raised this issue in this text shall be vica/Mitrovicë. The Commissioner has also in the 2009 letter to the German Chan- understood in full called on numerous occasions for immediate cellor and in the 2010 letter to the German compliance with United closure of these camps and the provision of Federal Minister of Interior. As of 2012 both Nations Security Council Resolution 1244 and adequate medical care for their inhabitants. camps were closed. without prejudice to the status of Kosovo.

Impact through the The Commissioner’s reports have an impact – Aslakhanova and others v. Russia, judg- case-law of the on human rights protection in member states ment of 18 December 2012, concerning dis- European Court of also through the Court’s case-law, since they appearances in Chechnya; Human Rights are cited and relied upon in a number of – Suso Musa v. Malta, judgment of 23 July judgments, such as the following: 2013, concerning the arbitrary detention of – M. v. Germany, judgment of 17 December an asylum-seeker. 2009, concerning preventive detention; In 2010 the Commissioner submitted written observations as a third-party and intervened – Rantsev v. Cyprus and Russia, judgment of orally during the hearing before the Court's 7 January 2010, concerning trafficking in Grand Chamber on the case of M.S.S. v. human beings; Belgium and Greece relating to the transfer of an asylum seeker from Belgium to Greece – Oršuš and others v. Croatia, Grand under the Dublin Regulation. On that case Chamber judgment of 16 March 2010, con- the Court delivered a judgment on 21 cerning segregation of Roma children in edu- January 2011 which had wide-ranging conse- cation; quences for the protection of the human rights of asylum seekers in Europe: it recog- – Kurić and Others v. Slovenia, Grand nised that the living conditions asylum Chamber judgment of 26 June 2012, seekers had to endure in Greece amounted to addressing the issue of persons erased from degrading treatment. In response, several the country's registry of permanent resi- member states suspended returns of asylum dence; seekers to Greece. The findings of the Court

52 Practical impact of the Council of Europe monitoring mechanisms also prompted more calls within the Euro- pean Union for reconsideration of the ‘Dublin Regulation’ itself.

Group of States against Corruption – GRECO

The following list of examples covers 47 of tions for improvements of the countries’ anti- the 49 current members of GRECO which - corruption legal frameworks and institu- at the time of writing - had been subject to a tional setups and the subsequent compliance formal impact assessment ("compliance pro- reports can be accessed at GRECO’s home cedure"). The relevant evaluation reports page (www.coe.int/greco/). which contain a number of recommenda-

Albania The Albanian authorities have amended the in influence. Albania has also put in place criminal legislation on corruption by, inter new legislation to enhance the transparency alia, addressing bribery of foreign and inter- of political party funding, to ensure compre- national officials, jurors and arbitrators, and hensive monitoring by the Central Electoral by increasing the level of sanctions available Commission over the regular as well as the for bribery in the private sector and trading campaign funding of political parties.

Andorra A programme of anti-corruption awareness- special investigative techniques (e.g. inter- raising and training initiatives has been ception of communications, controlled deliv- adopted and implemented; a special coordi- eries) in connection with corruption cases. nator has been appointed to facilitate the The concept of corporate liability has been reform process on the basis of GRECO’s rec- introduced in the legislation, making it pos- ommendations. Moreover, legislation has sible to prosecute business entities involved been enacted to allow for a broader use of in corruption.

Armenia The Criminal Code has been amended to financing has been carried out, with the address several ambiguities and to crimi- adoption of a new Election Code, amend- nalise trading in influence. Training pro- ments to the Law on Political Parties and the grammes for practitioners in order to explain Code of Administrative Offences, including the elements of certain bribery offences have regulations on donations, spending limits been organised. Reform of the legislation and accounting. pertaining to transparency of political

Austria A number of measures have been carried out nating Body on Combating Corruption. in order to implement recommendations Criminal sanctions available for corruption issued by GRECO, such as a study on the offences have been strengthened. Moreover, a impact and nature of corruption in Austria, code of conduct for public officials has been the establishment of the Federal Bureau of developed as well as a regulatory framework Anti-Corruption, the Public Prosecutor’s for the protection of whistleblowers. Office against Corruption and the Co-ordi-

Azerbaijan Legislative measures have been taken to sions on bribery and trading in influence broaden the scope of bribery provisions with have been amended, inter alia, to explicitly regard to domestic public officials, foreign criminalise the offer and the promise of an and international officials and persons acting advantage as well as the acceptance of an in the private sector. Furthermore, the provi- offer or promise.

Belgium By means of a special memorandum, the dures. A circular has also been adopted to various administrations and prosecutorial involve tax authorities in the recognition of services concerned have been alerted to the corruption-related offences and their subse- new possibility of obtaining information on quent reporting to criminal law bodies. A potential criminal backgrounds of legal process has been initiated with a view to persons – a facility which is of particular reforming the political financing regulations. interest in the context of procurement proce-

Bosnia and The Agency for the Prevention and Fight responsibilities, e.g. development, coordina- Herzegovina against Corruption has been set up. It is tion and monitoring of anti-corruption poli- vested with diverse corruption-prevention cies and activities, data gathering and anal-

Group of States against Corruption – GRECO 53 ysis, monitoring of conflicts of interest, and to deprive offenders of illegal proceeds design of integrity plans, awareness raising acquired through corruption, including and education etc. Legislative improvements through extended confiscation and the appli- have been made to better gather evidence cation of special investigative techniques.

Bulgaria Following changes to the Criminal Law, Bul- (new Electoral Code and amendments to the garia has carried out training in respect of a Political Party Act) have created a clearer and large number of judges, prosecutors and law more robust legal framework as far as trans- enforcement officers on legal issues per- parency is concerned (e.g. indicating permis- taining to the offences of bribery in the sible funding and banning anonymous dona- public sector and trading in influence. New tions). legislation in the area of political financing

Croatia The Criminal Code has been amended to respective roles of the State Audit Office and broaden the offences of bribery and trading the State Election Commission in this moni- in influence. New legislation has been toring have been clarified and these bodies adopted to enhance the transparency of the have been provided with adequate authority funding of political parties as well as to and resources to carry out their tasks. ensure adequate monitoring of the imple- Administrative sanctions for violation of mentation of political financing rules. The political financing rules have been enacted.

Cyprus A series of legislative amendments has been the obligation upon political parties and affil- introduced in order to strengthen the crim- iated organisations to keep annual inal sanctions for corruption offences and to accounting books and to report on income remedy imprecise definitions of some and expenses pertaining to election cam- bribery offences. Furthermore, the new paigns, all under the supervision of the Political Parties Law brings enhanced trans- Auditor-General of the Republic. parency into political financing, including

Czech Republic Measures have been taken to align the Crim- ence. Furthermore, the authorities have clar- inal Code with the requirements of the Crim- ified that the Criminal Code covers all inal Law Convention on Corruption (ETS bribery offences, whether committed directly 173) regarding the offence of trading in influ- or through intermediaries.

Denmark The Danish authorities have strengthened respectively has been established. These the sanctions for a number of corruption efforts have increased the country’s compli- offences under the Danish Criminal Code ance with the Criminal Law Convention on and new criminal legislation regarding the Corruption (ETS 173). territories of Greenland and the Faroe Islands

Estonia The Penal Code has been amended so as to election campaign financing has been estab- criminalise bribery of members of domestic, lished by improving the transparency legisla- foreign and international public assemblies, tion, setting up a new monitoring mecha- arbitrators and persons working for private nism (the Supervision Committee) and sector entities. Moreover, a solid legal frame- further developing the sanctions regime. work for both regular political party and

Finland Finland has put in place a comprehensive ical funding considerably and serve as a legal framework on political financing i.e. model to other GRECO members. Further- concerning election candidates and political more, Finland has broadened the scope of parties, in line with Council of Europe stand- certain bribery offences and strengthened ards. The improvements made have the criminal sanctions for bribery in the increased the general transparency of polit- private sector.

France A series of new or additional judicial and law concerning the transparency and supervision enforcement bodies has been set up, staffed of political financing has been amended so as by specialists, to deal with economic and to apply to all parliamentary election cam- financial crime, including complex corrup- paigns, including those for the election of the tion cases e.g. the Brigade centrale de lutte Senate. contre la corruption (BCLC). The legislation

54 Practical impact of the Council of Europe monitoring mechanisms Georgia The Criminal Code has been amended in ished the legal requirement of “dual crimi- order to bring the elements of the offences nality” to allow for the prosecution of cor- bribery and trading in influence in line with ruption offences whether committed the Criminal Law Convention on Corruption domestically or abroad, regardless of the (ETS 173). Furthermore, Georgia has abol- foreign criminal legislation.

Germany Consultations have been launched, both at have been initiated to clarify the legal frame- federal and Länder level, with a view to work and to strengthen the monitoring further strengthening the transparency of mechanism. political financing. At federal level, measures

Greece Various measures have been taken to speedier investigations. A National Coordi- increase the effectiveness of the investigation nator against Corruption has been estab- of corruption offences, including the established, in order to improve the effectiveness lishment of the special Prosecutor for Cor- of anti-corruption policies and coordination ruption Crimes as well as arrangements for between relevant agencies.

Hungary The Criminal Code has been amended in offences in the foreign context (foreign conformity with the requirements of the passive bribery) and with regard to complex Criminal Law Convention on Corruption corruption offences comprising a trilateral (ETS 173), inter alia, in respect of bribery relationship (“trading in influence”).

Iceland In response to repeated concerns about have been developed to better guide public integrity risks, democratic accountability and servants on deontological standards and the possible corruption, Iceland has undertaken prevention of conflicts of interest (e.g. finan- a reappraisal of its transparency measures, cial declarations of parliamentarians, codes the ethos of its governing institutions and the of conduct). Additionally, the criminal sanc- concept of corruption as it should be under- tions in respect of corruption offences have stood in the Icelandic context. Targeted tools been strengthened.

Ireland Ireland has engaged in a multifaceted reform report suspected corruption whether in the process to tackle white collar crime in its dif- country or abroad. Important efforts have ferent forms. Anti-corruption legislation has been made to enhance the transparency of been strengthened by, inter alia, substantially political financing and to strengthen the extending the jurisdiction in relation to cor- financial discipline of political parties ruption occurring outside Ireland and by through more stringent accounting and providing protection for whistle blowers who auditing obligations.

Italy Italy has embarked on a comprehensive anti- blower protection, conflicts of interest, codes corruption programme which places key of conduct and the establishment of an inde- importance on transparency and accounta- pendent anti-corruption authority). The law bility in public administration. The new also strengthens the sanctioning regime for Anti-corruption Framework Law introduces corruption offences, misconduct and mis- a systemic approach to corruption preven- management of public resources. tion and integrity measures (e.g. whistle

Latvia Legislative amendments have been adopted legislation has been introduced in respect of in order to eliminate political interference in political financing, including regulation of the selection and appointment process of the the involvement of third parties in election leadership of the Corruption Prevention and campaigns and on the liability of natural Combating Bureau (KNAB) and to improve persons for violations of political party the recruitment procedures of its staff. New funding rules.

Liechtenstein Liechtenstein has established an oversight tional aspects of fighting corruption. Liech- anti-corruption body (the Working Group tenstein is preparing a “legal package” aimed for the Prevention of Corruption) which has at making it possible for the country to ratify been given a broad composition and man- the Criminal Law Convention on Corruption date, covering both preventive and opera- (ETS 173).

Lithuania Significant amendments to the Criminal “third party beneficiaries”. Active trading in Code have been enacted, notably including influence has been introduced as a criminal clarifications of the concepts of a “bribe” and offence. The Law on Financing and Financial

Group of States against Corruption – GRECO 55 Control of Political Parties and Political comprising a prohibition on unregistered Campaigns has been amended to enhance donations and third party election campaign the transparency of the financing of political financing, in order to require political parties parties and election campaigns, inter alia, to open special campaign accounts.

Luxembourg The adoption of the Confiscation Act and tary nature or comprising any other valua- other measures provide for the seizure and bles. Legislation on the transparency of polit- confiscation of assets of an equivalent value ical financing has been introduced and, as a to the proceeds of any corruption offence. result, annual reports are to be submitted to This improves the possibilities for depriving the Court of Accounts and, subsequently, to offenders of illegal benefits from their be made public. corrupt dealings whether of a purely mone-

Moldova The provisions on bribery in the public and and any kind of advantage linked to bribery private sectors and on trading in influence and trading in influence, whether material or have been brought into line with the stand- immaterial in nature. Professional training ards of the Criminal Law Convention on and awareness-raising measures targeting the Corruption (ETS 173), inter alia, by authorities responsible for enforcing the leg- extending the elements of these offences to islation have been initiated. all the different forms of corrupt behaviour

Malta The Criminal Code has been amended in and more effective, proportionate and dis- order to criminalise bribery of domestic and suasive penal sanctions for all bribery foreign arbitrators and foreign jurors. The offences committed by judges have been maximum penalty provided for the offence introduced. of trading in influence has been increased

Monaco Legislation on access to public information, public sector, which provide for the protec- establishing, inter alia, the right for any tion of employees who report in good faith person to obtain communication of public suspicions of corruption. Various amend- documents, a list of grounds on which access ments have been made to the criminal legis- can be denied and possibilities to appeal any lation, for instance, to allow for the applica- such denial has been enacted. Whistle tion of confiscation and temporary measures blowing policies have been introduced in the in relation to proceeds of corruption.

Montenegro An articulated approach to fighting corrup- has resulted in a more solid track record of tion and its risks has been adopted by Mon- convictions. Likewise, valuable transparency tenegro. The anti-corruption legal frame- tools have been developed for sectors at risk work has been strengthened to better detect (e.g. public procurement and privatisation corruption and to deprive offenders of ille- processes, education, the judiciary, etc.). gally acquired proceeds from corruption; this

Netherlands The Criminal Code has been adjusted in entry into force of the Financing of Political respect of bribery of public officials and Parties Act (containing the obligation on bribery in the private sector in order to align political parties and their affiliates to identify it with the Criminal Law Convention on Cor- and disclose donations above a certain ruption (ETS 173). Furthermore, the draft threshold and to submit annual financial criminal codes for the Netherlands Antilles reports etc.) is expected to increase the trans- and Aruba have been amended in light of the parency of political financing. same Convention. The adoption and the

Norway The Political Parties Act has been amended Rec(2003)4 of the Committee of Ministers to in order to increase the transparency of polit- member states on common rules against cor- ical financing and to create a legal basis for ruption in the funding of political parties and the monitoring of political party financing in electoral campaigns. line with Article 14 of Recommendation

Poland – A new Electoral Code has been adopted Code extends to matters relating to the which harmonises the provisions governing financing of election campaigns. More infor- elections to both Chambers of Parliament, as mation regarding political funding is pub- well as elections to the European Parliament, lished on the Internet and the new legislation presidential elections and local elections. The requires frequent declarations of donations

56 Practical impact of the Council of Europe monitoring mechanisms received by political parties and candidates in the context of election campaigns.

Portugal The Portuguese authorities have announced financing by introducing a common format their intention to ratify the Additional Pro- to be followed by political parties when tocol to the Criminal Law Convention on reporting their financial situation and Corruption following amendments to the ensuring that financial reports are submitted Criminal Code. Efforts have been made to to the authorities within the legal deadlines. enhance the transparency of political

Romania The number of officials entitled to immunity political financing are in the process of being from criminal prosecution has been reduced improved; some measures have already been in order to overcome obstacles to an effective undertaken, e.g. to consolidate political party fight against corruption. Moreover, a special accounts to include all related entities and National Anti-Corruption Prosecution Unit territorial structures, and to account for in- has been established to deal with large and kind support at its real value. medium-scale corruption offences. Rules on

Russian Federation A large number of federal laws and orders directly under the executive powers – and have been enacted and/or amended as a supervisory commissions have been devel- result of evaluation of levels of corruption oped throughout the public administration and of the efficiency of anti-corruption in order to detect and prevent conflicts of measures. Investigations of corruption interest. Annual declaration of assets has offences have been centralised in the Investi- become mandatory for public officials. gative Committee – a structure established

Serbia Serbia has undertaken a thorough review of control and responsibility in this area. A its legislation governing the financing of dedicated anti-corruption agency has been political parties and election campaigns, established and vested with important pre- notably to better ensure transparency, ventive and investigative powers.

Slovak Republic A series of legal amendments to the Criminal and trading in influence (e.g. the offering of Code has been adopted in order to provide an advantage) in line with the Criminal Law for a broader coverage of bribery offences Convention on Corruption (ETS 173).

Slovenia Measures have been taken to promote the prepare and implement “integrity plans” as a integrity and to curb corruption in public tool to identify, monitor and manage each administration, including by better regu- institution’s specific corruption risks. This lating incompatibilities and conflicts of system is being replicated in other countries interest. An interesting development is the in the region. obligation for all public institutions to

Spain The Spanish authorities have stepped up correct functioning of the public service. criminal legislation and procedures to render Legislation on political financing has been investigations more expeditious and effi- amended and control mechanisms have been cient. On the preventive front, transparency reinforced in an effort to recast public trust in and public consultation mechanisms are now the political system. recognised as an essential component in the

Sweden The Government has established a commis- against this phenomenon and has submitted sion of inquiry with the task of reviewing the proposals for changes in the Penal Code. Fol- penal law regulation of active and passive lowing repeated criticism, the Government is bribery. The Commission has carried out in the process of establishing a legal frame- thorough work concerning a number of work in order to provide for transparency aspects relating to corruption and the fight within the area of political financing.

Switzerland Preventive and repressive anti-corruption passed legislation to ensure citizens’ access to mechanisms have been made more efficient, public information and have improved public e.g. a federal policy co-ordination group has audit mechanisms. Anti-corruption guide- been established and oversight of the federal lines have been adopted and training has prosecution service has been reviewed. been provided to public officials focusing on Various cantons and/or municipalities have ethics and corruption prevention.

Group of States against Corruption – GRECO 57 “The former Several provisions in the Criminal Code have legislative measures have also been followed Yugoslav Republic been amended to broaden the scope of the up with training events organised by the of Macedonia” criminalisation of various bribery offences Academy for Judges and Public Prosecutors and trading in influence in order to comply in order to familiarise practitioners with the with the requirements of the Criminal Law new legislation. Convention on Corruption (ETS 173). These

Turkey The authorities have initiated measures with system of legal persons has been established a view to reforming the High Council of and the provisions of the Code of Misde- Judges and Prosecutors, strengthening the meanours concerning the liability of legal Board of Review of Access to Information persons have been amended in respect of, and providing more independence for the inter alia, corruption offences and money Ethics Council. A central on-line registration laundering.

Ukraine Following several years of scattered reforms, provide a comprehensive response to the the State Programme for Preventing and need for anti-corruption reform in terms of Combating Corruption 2011-2015, devel- legislation and practice of various sectors of oped by the National Committee against public administration, the judiciary etc. The Corruption, has been established in order to Strategy is connected to a plan of action.

United Kingdom The new Bribery Act came into force in 2011; framework but also introduces a new scheme the transformation of old, complex and frag- of offences in the area of corruption. Newly mented bribery legislation into a comprehen- adopted legislation governing the Electoral sive and clear piece of legislation had been Commission, aiming at increased transpar- strongly supported by various entities, ency and accountability in the area of polit- including GRECO. The new law does not ical funding, provides this body with more only simplify and consolidate the legal powers, including flexible sanctions.

United States The authorities have carried out a broad legal tion on Corruption (ETS 173), in particular, study of recent case-law in relation to various as regards the offences of bribery of foreign corruption offences to ensure that federal public officials, bribery in the private sector legislation and practice comply with the and trading in influence. requirements of the Criminal Law Conven-

MONEYVAL

Preventive regimes As a consequence of MONEYVAL’s rounds of apply also in respect of the real beneficial evaluation, all evaluated States and territories owners of accounts – i.e. individuals who ulti- now have basically sound preventive legisla- mately own or control the accounts, or for tion in place. These laws address the impor- whom transactions are being conducted by tant customer identification (CDD) and other parties, including in the case of legal record-keeping standards which need to be in persons. place in financial and non-financial institutions for the opening of accounts and the All MONEYVAL States and territories now conduct of transactions above an applicable have a legal basis for the reporting of suspi- threshold by natural and legal persons. The cious transactions by the private sector to a same standards also apply now in almost all dedicated focal point for AML/CFT issues, MONEYVAL States and territories to other the Financial Intelligence Unit (FIU), and designated businesses and professions with fully operational FIUs which analyse cases AML/CFT obligations, including lawyers, for transmission to law enforcement and for accountants, trust and company service pro- investigation and prosecution. viders, casinos, real estate agents, and dealers 1 in precious stones and metals . Most coun- 1 These businesses are collectively referred to as Desig- tries have enhanced their legislation appro- nated Non-Financial Businesses and Professions priately to ensure that CDD requirements (DNFBPs).

Criminal/legal AML/ Many countries have embraced concepts even gone beyond existing international CFT regimes which ten years ago were not considered to standards, for example in criminalising negli- be within their legal traditions, such as cor- gent money laundering. Some countries are porate liability for money laundering. Several also introducing the reversal of the burden of countries, at MONEYVAL’s prompting, have proof in establishing whether assets in the

58 Practical impact of the Council of Europe monitoring mechanisms possession of a defendant have been unlaw- convicted of a serious proceeds-generating fully obtained – and therefore are subject to offence. confiscation – where the defendant has been

Investigation, More countries, also at MONEYVAL’s offences from objective facts and circum- prosecutions, prompting, are now investigating and prose- stances. This can involve departures from convictions and cuting the more difficult types of autono- previous judicial practice in some jurisdic- deterrent confiscation mous ML cases. These often require judges to tions. orders infer the existence of underlying predicate

Cyprus In 2013, MONEYVAL agreed, exceptionally, A range of shortcomings with the potential to to the Eurogroup’s request that it conduct a undermine the effectiveness of CDD meas- targeted special assessment outside of MON- ures was identified. Overall, the assessors EYVAL’s normal cycle of evaluations, in the were concerned that the combination of a context of Cyprus’ application to the Euro- number of features associated with interna- group for financial assistance. MONEYVAL tional banking business (e.g., introduced was tasked with assessing the effectiveness of business plus complex structures plus use of the Customer Due Diligence measures in nominees) would bring the level of risk place in the Cypriot banking sector. This very beyond a level that was capable of being sensitive special assessment was conducted effectively mitigated by existing CDD meas- between 19 and 29 March 2013. This evalua- ures. MONEYVAL reviewed, during its tion was unique as no other jurisdiction has December 2013 Plenary, the steps taken by hitherto submitted to such an exceptional the authorities to meet the 2013 MON- and focused AML/CFT evaluation covering EYVAL recommendations and will continue the effectiveness of one part only of its AML/ to closely monitor progress in its plenary CFT system. Most of the MONEYVAL recommendations were attached to the Memo- meetings in 2014. randum of Understanding between Cyprus and the Troika1, the implementation of which 1The Troika is the tripartite committee led by the European Commission with the European Central is a condition of the financial assistance Bank and the International Monetary Fund that package. MONEYVAL’s Special Assessment organised loans to the governments of Greece, Ire- is published on the website. land, Portugal and Cyprus.

Slovenia Slovenia presents a clear example of the effi- adopted new laws intended to give priority to ciency of MONEYVAL’s follow-up processes, asset detection and asset recovery and through which MONEYVAL monitors provide for parallel financial investigations progress on a regular basis. conducted separately from the investigations Slovenia was placed into regular follow-up of the criminal offense itself, as recom- after its 4th round MER was discussed in mended by MONEYVAL. For the freezing March 2010, and required to report back to and confiscation of terrorist assets, Slovenia, the plenary and provide information on the through amendments to its AML/CFT Law actions it had taken or was taking to address and the ratification of the Warsaw Conven- the deficiencies underlying Recommenda- tion, made significant steps in addressing the tions that were rated partially- or non-com- identified deficiencies. pliant. Particular emphasis was placed on the Other noteworthy improvements include the criminalisation of money laundering and creation of a procedure to better identify procedures concerning confiscation of laun- politically exposed persons, the establish- dered and terrorist assets. Based on its on- ment of a supervisor for auditing companies going efforts, Slovenia sought and obtained and the strengthening of its FIU’s powers. removal from this process during MON- EYVAL’s March 2013 plenary meeting. Overall, it was concluded in March 2013 that With regard to the criminalisation of money Slovenia had taken significant and sufficient laundering, Slovenia took very positive steps steps to be removed from the regular follow- to enhance the effective implementation of up process. its legislation on money laundering, including a major review of its AML/CFT 2 An autonomous conviction for money laundering is Law, and has achieved a significant number a conviction where money laundering is prosecuted of convictions for money laundering, as a stand-alone offence, without being joined with including autonomous convictions2. the offence(s) which generated the criminal proceeds. Successful autonomous ML cases ensure that As to the confiscation of laundered property third parties who launder on behalf of others are and proceeds from crime, Slovenia has brought to justice.

MONEYVAL 59 Holy See (including Following the decision of the Committee of negotiated. The new professional structure of the Vatican City Ministers in 2011 to accept the application of the FIA, set out in its revised statute, none- State, HS/VCS) the Holy See to join MONEYVAL, both the theless needs supplementing with more mutual evaluation report and first progress trained and experienced AML/CFT staff to report received extended global coverage, handle the full range of its FIU functions. underlining the importance of the work of MONEYVAL and the Council of Europe in MONEYVAL recommended in 2012 that the 2 this area. More significantly, the technical Institute for Works of Religion (IOR) should recommendations made by MONEYVAL in be prudentially supervised. Now that a deci- 2012 have been largely implemented by the sion has been taken that the FIA should Holy See in a fast-paced package of reforms. become the prudential supervisor of the IOR Thus, the Holy See has come a long way in a as well as the AML/CFT supervisor, the FIA very short time. The first Anti-Money Laun- needs to recruit appropriately skilled profes- dering Law only came into force in April sionals quickly to undertake these responsi- 2011. It has been significantly amended in bilities. There have still not been formal the light of MONEYVAL’s recommendations. AML/CFT inspections yet of the IOR and the The latest legislative amendments, reviewed Administration of the Patrimony of the by MONEYVAL in December 2013, contain Apostolic See (APSA). The 2013 report noted many welcome clarifications and improve- that the remediation processes undertaken ments to the AML/CFT legal structure. by the IOR, and to some extent APSA, are The legal basis for criminalisation of ML and being pursued in close conjunction with the TF and related confiscation is now much FIA as a supervisor, though it was stressed in improved, but still needs to be tested in prac- 2013 that the forthcoming inspections of IOR tice. and APSA should proceed now as planned. In this context, it was noted in the 2013 There are important processes ongoing to progress review that a credible regime is now ensure that the financial institutions within formally in place in terms of AML/CFT the HS/VCS know who their account holders supervisory powers and sanctioning, which are and that customer due diligence measures now also needs to be tested in practice. are applied to them in line with international standards. This work is ongoing. It appears to Regulations are still outstanding in respect of have generated a significant number of suspi- expertise and integrity requirements for cious transaction reports, which are being financial institutions, which need to be 1 analysed by the FIA and, where appropriate, issued quickly. Until then, the FIA cannot referred to the Promoter of Justice. The first take on the assessment of the fitness and pro- judicial mutual legal assistance request has priety of management of financial institu- been made by the HS/VCS and this was in a tions and the examination of potential con- ML case. flicts of interest, which are important parts of The FIA now clearly has the autonomy to its supervisory remit. negotiate Memorandums of Understanding (MoUs). MoUs have been concluded with a Under the biennial update procedure, the number of countries and more are being Holy See is required to report on its progress by December 2015. 1 Autorità di Informazione Finanzaria (AIF), the Holy See’s Financial Intelligence Unit. 2 Sometimes described as the “Vatican Bank”

60 Practical impact of the Council of Europe monitoring mechanisms