The role and significance of the regional European organizations in the process of humanization of national public policy: legal analysis

PhD, Associate Professor, Professor of Constitutional and Administrative Law Department National Aviation University

Rozum Igor

Summary

The main activity of the Council of Europe was defined by the European Convention on Human Rights and Fundamental Freedoms of November 4, 1950 (ECHR), which entered into force on the regional level as a binding instrument for the Member States (came into force on September 3, 1953) more than twenty years before the Covenants on Human Rights (which came into force in 1976) of a universal level. The European Social Charter (18.10.1961), where Part I defines 19 principles for the protection of the rights of its citizens and citizens of other contracting parties in the social and labor spheres, and the European Code of Social Security (16 April 1964) were adopted to the development of the ECHR. Section I (Articles 2-14) of the ECHR defines the fundamental rights and freedoms that the Member States undertake to enforce and abide by. Article 15 provides the possibility of deviation from obligations: “During a war or other public danger, which endangers the life of a nation, any Party may take measures, which deviate from its obligations under this Convention, for the limited purpose, which is required by the severity of the situation, and on conditions, that such measures do not contradict its other obligations under international law [11, art. 15]. But there cannot be a deviation from the provisions of the articles: 2 (right to life), 3 (prohibition of torture), 4 (prohibition of slavery and forced labor) and 7 (no punishment without law). In addition, Article 16 of the Convention provides the right of the Member States to restrict the activity of foreigners, and Articles 17 and 18 require do not use restrictions in contravention of the purposes and principles of the Convention.

Section II of the Convention regulates the activities of the European Court of Human Rights, the first court in the modern history, which had to note claims of individuals to the State, which violated their rights. As is generally known, initially the Court acted with the European Commission on Human Rights. In October 1993, was made a decision to replace such a two-stage system by the activity of the new European Court of Human Rights (approved by the Protocol No. 11 of 11.05.1994). The Agreement on Persons Participating in the process of European Court of Human Rights (05.03.1996) was also revised. In November 1998, the reformed Court began its work (on November 4, 1998, a new Rules of the Court was adopted). However, further its work is constantly optimized due to the increasing number of claims: in particular, Protocol No. 14 of May 13, 2004 introduced new acceptability criteria for suits, as well as the right of the Committee of Ministers of the Council of Europe to sue the state, which is non-compliant court's decision. For the further optimization of the Court were dedicated the Interlaken Declaration (19.02.2010) and the Declaration on the Future of the European Court of Human Rights (April 27, 2011) [12]. The judgments of the European Court of Human Rights have become an important means of interpreting and implementing the provisions of the Convention on Human Rights. Assemblies of decisions of the European Court of Human Rights are systematized according to some relevant issues and became the authoritative source of reforming of the public institutions of the Member States activities and the legal consciousness of their citizens [13].

Perhaps, the most urgent direction for systematic formation of a favorable environment for human rights have become the Council of Europe conventions in the field of proper support of development of younger generations. It was rather early, that it adopted Convention on the Adoption of Children (24.04.1967, as in force on 27.11.2008) and Convention on the Exercise of Children's Rights (25.01.1996) [14]. Anxiety symptoms of modernity led to the adoption of the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (25.10.2007) [12]. The scientifically substantiated recommendations in this area are set out in “The Council of Europe Strategy for the Rights of the Child (2012-2015)”, dated February 15, 2012, which main objective is to consolidate the priority of the rights of the child in all areas of the activity of the institutions of the Council of Europe and its Member States. “The Strategy” is governed by the principles defined at the universal level by the UN Convention on the Rights of the Child (20.11.1989): non-discrimination; making best decisions for the interests of the child; protection of her right to life, survival and development; respect for the views of the child. Based on the interdependence and indivisibility of the rights of the child, “The Strategy” defined the main directions of activity: 1) popularization of child-friendly services and systems; 2) the elimination of all forms of violence against children; 3) ensuring the rights of children in difficult life situations, and 4) promoting the participation of children in solving issues in the area of protecting their rights [15].

In the area of crime fighting and ensuring the efficiency and humanity of justice, the Council of Europe adopted a number of conventions and recommendations that laid down the standards for the activity of judges and other officials of law enforcement and penitentiary institutions, and ensured simplification and transparent of international cooperation in these areas. As an example, we quote the conventions: On the Supervision of Conditionally Sentenced or Conditionally Released Offenders (dated 30.11.1964); On the Compensation of Victims of Violent Crimes (24.11.1983); On Offenses relating to Cultural Property (June 23, 1985); On Spectator Violence and Misbehaviour at Sports Events and in particular at Football Matches (August 19, 1985). An important stage in the humanization of the activity of law enforcement agencies became The Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (November 26, 1987). In the XXI century were adopted such Conventions as: On cybercrime (23.11.2001); On the Preventing of Terrorism (16.05.2005); On Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism and On Action against Trafficking in Human Beings (both of 16.05.2005); On the

Counterfeiting of Medical Products and Similar Crimes involving Threats to Public Health (28.10.2011) [12].

The Council of Europe pays a considerable attention to the struggle against corruption. After the adoption of the Convention “On Mutual Administrative Assistance in Tax Matters” (25.01.1988), the Recommendations to Financial Police on Combating Money Laundering (01.07.1989) and the Model Law on Money Laundering in Relation to Drugs (01.01.1995) were adopted. In 1997, the Committee of Ministers adopted the Decision “Corruption and organized crime in restructuring countries” (Project Octopus), and resolved the Statute of the Commission on the Prevention of Corruption and “The Twelve Principles of Struggle against Corruption”. In May 1998, the Agreement on the Establishment of a Group of States against Corruption (GRECO) and the Statute of the Group of States against Corruption were made. In November 1999, “Criminal Law Convention on Corruption” and “Civil Law Convention on Corruption” were adopted, in 2000 “The Model Code of Conduct for Civil Servants” was adopted, and in 2003 “The Uniform Rules against Corruption by financing of political parties and election campaigns” were resolved. The Council of Europe pay a great attention is paid to the professional ethics of lawyers. To these issues are dedicated: the European Charter on the Law “On the Status of Judges” and an Explanatory Note to it (10.07.1998); Bordeaux Declaration on the Relations between Judges and Prosecutors dated 18.11.2009; Recommendation of the Committee of Ministers on judges: independence, effectiveness and responsibilities (17.11.2010) and other documents [16, p. 140].

The Council of Europe made an important contribution to the protection of European cultural diversity, the educating respect to the identity of large and small peoples of Europe, the development of humanitarian cooperation, the promotion rights of communities in protection of ethnic self-identity and self-organization. In this rather diverse area act the European Cultural Convention (19.12.1954) and a number of acts directed on the development of this field: The Convention on the Recognition of Qualifications Concerning Higher Education in the European Region dated 11.04.1997, the Bologna Charter 19.06.1999, The Declaration on European Policy on New Information Technologies 06.05.1999, Budapest Declaration for a Greater Europe Without Distribution Lines dated 07.05.1999, Declaration and Programme of Education for Democratic Citizenship, based on the Rights and Responsibilities of Citizens dated 07.05.1999 [17], the European Convention for the Protection of the Audiovisual Heritage dated 08.11.2001. Such documents as the European Charter of Local Self-Government (15.10.1985) [18]; the European Charter for Regional or Minority Languages (15.11.92) [19]; the European Urban Charter 1992 (as in force on 2008); the European Charter on the Participation of Young People in Local and Regional Life 1992 (as in force on 2003); Statute of the Congress of Local and Regional Authorities of Europe (14.01.1994); Framework Convention for the Protection of National Minorities (01.02.1995); The Utrecht Declaration on Good Governance at Local and Regional Level in Turbulent Time (Nov. 17, 2009) and others [12] generalized and unified in their provisions the traditional foundations and the latest trends of such local self-government as schools of a civil activism and real democracy.

Since 1990 the Council of Europe has devoted a special place to the procedural safeguarding of the principles of democracy. In 1990 it founded the European Commission for Democracy through Law (Venice Commission), acting as an advisory body to the Council of Europe on constitutional law. The Commission's conclusions are considered as a source of European standards in the field of democracy. Notwithstanding the fact that members of the Council of Europe are not required to be members of the Commission, all 47 Member States are involved in its work. Since 2002, countries which are not Member States of the Council of Europe also participate in the work of the Commission, in particular Algeria, Israel, Kazakhstan, Kirghizia, the Republic of Korea, Brazil, Peru, Chile. The Commission closely cooperates with the OSCE Office of Democratic Institutions and Human Rights (ODIHR), as well as with EU institutions [16, p. 141].

The second regional system of Europe is based on the founding treaties of three European Communities, which, with the entry into force of the Maastricht Treaty in 1993, formed the European Union [8, p. 141]. With the entry into force of the Lisbon Treaty The Treaty amending the Treaty on European Union and the Treaty establishing the European Community (13.12.2007), effective from November 2009, became a temporary act after the failure of the ratification process of the EU Constitution in 2009, this system acts solely as institutions and the right of the European Union, around which the multi-channel process of pan-European integration continues. The main act of the EU is the Lisbon version of the Treaty of Rome, the Treaty establishing the European Economic Community, which name changed to the “Treaty on the Functioning of the European Union”. In 1957 the Treaty defined the basic aim of the European Economic Community: “elimination of trade barriers, common economic policy and unification of living standards” [8, p. 74]. Against the background of the priority tasks -- the creation of a customs union and the liberalization of trade in goods, gradual achievement and other “three freedoms” -- free movement of capital, labor and services was planned. Since 1967, on the basis of The Merger Treaty of 1965, the joint institutions of communities began to operate: the Commission, the Council of European Communities, the European Parliament (from 1957 to 1962, the Assembly) and the Court. Since 1975, The Court of Auditors has been added to them [8, p. 123]. The processes of economic integration of the Member States of the “common market” contributed to the awareness and economic assessment of such concepts as “human capital assets”, “human development”, “human potential”. The integration movement has been intensifying since the 1990s. In 1991, the European Economic Community and the European Free Trade Association formed the Common Economic Space. The European Union was founded by The Maastricht Treaty of 1992, which is currently in effect in the “Lisbon” version [8, p. 75], and the European Economic Community has been renamed into the European Community. Changing the name determined the withdrawal of communities from purely economic goals and the fundamental orientation of European integration for integrated social development. Integration processes were also embodied in the strengthening of cooperation between three regional European institutions: the Council of Europe and the newly formed European Union and the Organization for Security and Cooperation in Europe. In particular, the important condition for EU membership was the adoption and observance of the provisions of the European Convention on Human Rights, 1950. After the creation of a single migration and currency space (with certain exceptions), the European Union's agenda was the adoption of its Constitution, which will replace a complex source database of acts of primary law with a huge number of changes and amendments with a single act. After three years of preparation, the Treaty establishing the Constitution was signed in Rome on 29 October 2004. Spain was the first to ratify the Treaty (February 2005), as well as Luxembourg (July 2005), however, after the ratification was failed by France and the Netherlands (May and June 2005), the process was terminated, as the condition for acquiring The Constitution was the ratification of the Treaty by all EU members [16, p.142]. However, Part II of the Constitution “the Charter of Fundamental Rights of the European Union” became an independent (third) source of the current “primary” law of the EU, the norms of which, in accordance with the Lisbon Treaty, are compulsory both for the EU authorities and for the Member States, when exercising a right of EU. The structure of the Charter corresponds to the main human values. This approach differs from the aforementioned acts of the twentieth century, in which “rights and freedoms” were the meaningful basis. Six chapters of the Charter are devoted to such values as: dignity, freedom, equality, solidarity and the rights of citizens and justice [20]. The last, seventh chapter contains the application rules of the Charter. In addition to the traditional rights and freedoms protected by previous international acts in this area, the Charter takes into account the most advanced forms of human rights violations: in particular, Chapter I “Dignity” provides for the prohibition of the use of a human body and its parts as a source of profit, reproductive cloning of human beings; Chapter II “Freedom” -- the right to protection of personal information, freedom of the arts and sciences, the right to shelter; Chapter III “Equality” -- the right to cultural, religious and linguistic diversity, the rights of children and the elderly, as well as persons with physical disabilities; Chapter “Solidarity” -- the right of workers to information and consultation, collective bargaining, free employment assistance, etc.; Chapter V “Rights of Citizens” contains the right of access to documents relating to the person, filing of a complaint to the European Ombudsman and petitions to the European Parliament, as well as “right to proper management” -- a set of powers and guarantees of citizens of the Union and other individuals and legal entities -- in their relations with EU authorities and institutions; Chapter VI “Justice” establishes procedural guarantees of a person, fundamentally within the framework of criminal proceedings [20].

Consequently, the European communities established for the sake of cooperation, above all, in the economic sphere, did not renounce either the prospect of political rapprochement or the goal of making Europe a “space of freedom of security and justice” on the basis of a common legal heritage, as stated in Article 2 of the Maastricht Treaty [21, p. 20]. In the end, their successor The European Union, having adapted all the standards for the protection of human rights, developed by the Council of Europe, put them in an upgraded form in its own act -- “the Charter of Fundamental Rights of the European Union”.

The Organization for Security and Cooperation in Europe (OSCE), convened in July 1973 for the first time (as the Conference on Security and Cooperation in Europe), became the first experience of cooperation between European states with different political regimes and ideology. The participants were 33 European states, the United States and Canada. The Soviet Union, as the initiator of the Conference, saw its main purpose in consolidating the existing territorial and political structure of Eastern Europe, which, according to William Corey, meant “the ideological and political division of the continent defined by the Berlin Wall” [22, p. 27]. As a result of two years of work, the OSCE has adopted a package of political decisions known as the Final (Helsinki) Act of the OSCE from 1 August 1975. The first part of the Act (Declaration of Principles), completed the process of formation of the basic principles of international law. The second component of the Final Act was an agreement on the development of trust and disarmament. The third component included an expanded program on cooperation in the fields of economy, science, technology, culture, education, environmental protection, and most importantly, on the protection of human rights, among which a subdivision contained a number of provisions to facilitate private contacts between the citizens of the Member States [23]. The protection of human rights and the free movement of people and ideas (the so-called “third basket” of the Final Act) were seen as the main achievement of the OSCE in alleviating hostility and mistrust caused by ideological divisions and wars of the 20th century -- between the citizens of the Member States. The CSCE Forum in Belgrade (1977-1978) on development issues, laid the foundations for the periodic convening of the CSCE and promulgation of cases of non-compliance with the terms of the Final Act: States that evade their implementation were seen as violators of international obligations. At a regular forum in Madrid (1980-1983), over thirty cases of human rights violations by the USSR and other members of the Warsaw Pact were considered. During the Forum in Vienna (1986-1989), CSCE activities were geopolitical: the leadership of M. Gorbachev (since 1988), the flourishing of publicity and “reformation period” in the USSR significantly improved the climate in Europe and the world. Against the background of arms limitation processes, religious and ethno-cultural rights that had not yet been recognized or had been violated, as well as the cessation of muffling of radio stations as a traditional means of preventing “the spread of ideas” became the subject of intergovernmental agreements [22, p. 30]. The Vienna Final Document, 19 January 1989, became a new step towards realizing the historical significance of the “free movement of people and ideas” and the protection of human rights, confirming that the sphere of human rights is a legitimate concern of the international community. It was this document that introduced the concept of “human dimension” as a special feature of the CSCE activities. The concept of “human dimension”, including a much wider list of measures than the actual human rights, is considered as the main component of the integrated concept of security [16, p. 147]. Subsequently, this concept was elaborated in more detail, as reflected in the Charter of Paris for a New Europe of 21 November 1990. The “Human dimension” of OSCE covers seven main areas in which Member States undertake to make the relevant provisions a part of their public order: 1) in the field of the rights of peoples to self-determination; 2) in the field of structural components of a democratic society, including, in particular, the electoral process; development of democracy (decentralization of power, public control over the armed forces, security and police services, independent human rights associations, transparency of the work of the administrations, fight against corruption, efficiency of management of public funds); the rule of law (the independence of judges and lawyers, the accessibility of justice, the rights of detainees, etc.); 3) in the field of personal human rights: civil and political rights (in particular, abolition of the death penalty, prohibition of torture, cruel or humiliating treatment or punishment, protection against unjustified deprivation of liberty, freedom of access to information, activities of journalists, cultural and artistic expressions, etc.); economic, social and cultural rights (labor rights, cultural rights and cultural heritage, the right to education, etc.); 4) obligations for particular groups requiring special protection, including rights of national minorities; indigenous population; refugees, displaced persons, returnees, stateless persons; migrant workers; persons with disabilities; children; military men; persons deprived of their liberty; 5) in the area of ensuring equality, tolerance and non-discrimination; 6) with regard to particular threats to human security, in particular the prevention of gender-based and age-based violence and exploitation; trafficking in human beings; illicit trafficking in narcotic drugs, weapons and other forms of international organized crime; terrorism; 7) in the field of international humanitarian law [24]. All these areas of “human dimension” provision by the CSCE Member States are aimed at protecting regional security. At the same time, however, it is not the security of the ruling political regime or the State, but, above all, the security of people -- personal, collective, ethnic and regional [16, p. 148]. Like the CSCE, the OSCE (since 1994) does not issue legally binding statements. Formally, their acts are political joint decisions. However, the authority of this institution, based on the goodwill of the Member States, ensures the implementation of their joint political decisions. The current work of the OSCE takes place at regular meetings of the Permanent Council and the OSCE Senior Council. OSCE “Mechanisms” explore problem issues (within the framework of the Vienna Mechanism), complementing, if necessary, their recommendations by sending special missions (within the framework of the Moscow Mechanism) to countries where the conditions of the “human dimension” are not met. The OSCE working body is the OSCE Office for Democratic Institutions and Human Rights (ODIHR), established in 1991 to monitor national elections and organize thematic seminars. The OSCE High Commissioner on National Minorities remains in effect, the OSCE Economic Forum is becoming more and more important [24].