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Security and Duty of Protection

International Standards


      Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention), Article 3

Article 3 - General Provisions
(...) 5. The provisions of this Convention shall not affect the right of a Party to maintain or introduce measures providing for broader access to information, more extensive public participation in decision-making and wider access to justice in environmental matters than required by this Convention.
(...) 8. Each Party shall ensure that persons exercising their rights in conformity with the provisions of this Convention shall not be penalized, persecuted or harassed in any way for their involvement. This provision shall not affect the powers of national courts to award reasonable costs in judicial proceedings.
9. Within the scope of the relevant provisions of this Convention, the public shall have access to information, have the possibility to participate in decision-making and have access to justice in environmental matters without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities.

      Concluding Document of Vienna — The Third Follow-up Meeting, Vienna, 15 January 1989, Paras. 12, 13 and 26

12) [The participating States] express their determination to guarantee the effective exercise of human rights and fundamental freedoms (…)
13) In this context they will (...)
  (13.8) - ensure that no individual exercising, expressing the intention to exercise or seeking to exercise these rights and freedoms or any member of his family, will as a consequence be discriminated against in any manner;

      Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, Copenhagen, 29 June 1990, Paras 10 and 12

10) In reaffirming their commitment to ensure effectively the rights of the individual to know and act upon human rights and fundamental freedoms, and to contribute actively, individually or in association with others, to their promotion and protection, the participating States express their commitment to (...)
  (10.3) - ensure that individuals are permitted to exercise the right to association, including the right to form, join and participate effectively in non-governmental organizations which seek the promotion and protection of human rights and fundamental freedoms, including trade unions and human rights monitoring groups;


      Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (General Assembly resolution 53/144), Article 12

1.Everyone has the right, individually and in association with others, to participate in peaceful activities against violations of human rights and fundamental freedoms.
2. The State shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration.
3. In this connection, everyone is entitled, individually and in association with others, to be protected effectively under national law in reacting against or opposing, through peaceful means, activities and acts, including those by omission, attributable to States that result in violations of human rights and fundamental freedoms, as well as acts of violence perpetrated by groups or individuals that affect the enjoyment of human rights and fundamental freedoms.

      Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe, Para. 24

III. Formation and membership
 C. Membership
  24. Persons belonging to an NGO should not be subject to any sanction because of their membership. This should not preclude such membership being found incompatible with a particular position or employment.

Explanatory Memorandum

Paragraph 24
60. Improper sanctions should not be imposed on persons merely because of their membership of an NGO. Thus there ought to be a remedy for anyone dismissed because he or she belongs to a trade union (see Appl. No. 12719/87, Frederiksen v. Denmark , 56 DR 237 (1988)) or because of the objectives of any other organisation to which they belong (see Vogt v. Germany [GC], no. 17851/91, 26 September 1995).
61. Similarly there ought to be protection for any other forms of sanction or pressures not to belong to an NGO, such as the loss of eligibility for certain benefits or posts; see Grande Oriente D’Italia di Palazzo Giustiniani v. Italy, no. 35972/97, 2 August 2001 and Wilson, National Union of Journalists and Others v. United Kingdom, nos. 30668/96, 30671/96 and 30678/96, 2 July 2002.
62. There is also a need to provide protection against even more aggressive forms of action taken against persons on account of their membership of an NGO, namely, harassment, intimidation and the use of violence. However, some sanctions will be admissible where membership of an NGO is clearly incompatible with the performance of either a person’s responsibilities as an employee or office-holder (see Appl. No. 11002/84, Van der Heijden v. The Netherlands, 41 DR 264 (1985)) or of other obligations that have been undertaken (such as where there is a conflict of interest between the interests of two organisations to which a person belongs).
63. The risk of incompatibility where the member is a public employee is expressly recognised in the stipulation in Article 11(2) of the European Convention that the guarantee of freedom of association does not “prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State”. However, as with any other conflict of interest, the existence of such an incompatibility must be demonstrated by direct evidence and should not thus be a matter of supposition. Moreover the restrictions must always have a basis in law and respect the principle of proportionality; see the Vogt case, Ahmed and Others v. United Kingdom [GC], no. 22954/93, 2 September 1998 and Rekvényi v. Hungary [GC], no. 25390/94, 20 May 1999. Furthermore those regarded as belonging to the administration of the State should be seen as covering only higher-ranking officials and not all employees paid out of public funds; see the Vogt and Grande Oriente cases.

      Fundamental Principles on the Status of Non-Governmental Organisations in Europe, Principle 23

Membership
23. Persons belonging to an NGO should not be subject to any sanction because of their membership. However, membership of an NGO may be incompatible with a person’s position or employment.

      Declaration of the Committee of Ministers on Council of Europe action to improve the protection of human rights defenders and promote their activities (Adopted by the Committee of Ministers on 6 February 2008 at the 1017th meeting of the Ministers’ Deputies)

The Committee of Ministers of the Council of Europe,

Noting the commitment made by Heads of State and Government meeting at their Third Summit in Warsaw 2005 that the Council of Europe “shall – through its various mechanisms and institutions – play a dynamic role in protecting the right of individuals and promoting the invaluable engagement of non-governmental organisations, to actively defend human rights”;
Recalling the United Nations Declaration on the right and responsibility of individuals, groups and organs of society to promote and protect universally recognised human rights and fundamental freedoms of 9 December 1998, and reiterating the importance of the declaration for individuals, groups and associations to promote and strive for the protection and realisation of human rights and fundamental freedoms at the national and international level;
Taking account of the European Union Guidelines on Human Rights Defenders of 2004 and the first review of their implementation in 2006, which contain suggestions for practical measures by EU member states and other states willing to implement them, to support and protect human rights defenders;
Deploring that human rights defenders, including journalists, are all too often victims of violations of their rights, threats and attacks, despite efforts at both national and international levels, and considering that human rights defenders merit special attention, as such violations may indicate the general situation of human rights in the state concerned or a deterioration thereof;
Paying tribute to their invaluable contribution in promoting and protecting human rights and fundamental freedoms;
Mindful that restrictions placed on the exercise of the freedom of expression, assembly and association, which affect the work of human rights defenders in Europe, must not extend beyond those authorised by paragraphs 2 of Articles 10 and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“European Convention on Human Rights” or “ECHR”);
Taking account of the report of the Steering Committee for Human Rights (CDDH) on Council of Europe action to improve the protection of human rights defenders and promote their activities;
Recalling Recommendation CM/Rec(2007)14 on the legal status of non-governmental organisations in Europe which stipulates that NGOs should enjoy the right to freedom of expression and all other universally and regionally guaranteed rights and freedoms applicable to them;
Acknowledging that whereas the prime responsibility and duty to promote and protect human rights defenders lie with the state, the Council of Europe shall also contribute to creating an enabling environment for human rights defenders and protect them and their work in defending human rights;
Welcoming the activities that the Council of Europe Commissioner for Human Rights has already undertaken in support of human rights defenders, in particular during his country visits, and mindful that protection of human rights defenders as well as the development of an enabling environment for their activities fall within the scope of his mandate, as defined in Committee of Ministers’ Resolution (99) 50 of 7 May 1999,

1. Condemns all attacks on and violations of the rights of human rights defenders in Council of Europe member states or elsewhere, whether carried out by state agents or non-state actors;
2. Calls on member states to:
 i) create an environment conducive to the work of human rights defenders, enabling individuals, groups and associations to freely carry out activities, on a legal basis, consistent with international standards, to promote and strive for the protection of human rights and fundamental freedoms without any restrictions other than those authorised by the European Convention on Human Rights;
 ii) take effective measures to protect, promote and respect human rights defenders and ensure respect for their activities;
 iii) strengthen their judicial systems and ensure the existence of effective remedies for those whose rights and freedoms are violated;
 iv) take effective measures to prevent attacks on or harassment of human rights defenders, ensure independent and effective investigation of such acts and to hold those responsible accountable through administrative measures and/or criminal proceedings;
 v) consider giving or, where appropriate, strengthening competence and capacity to independent commissions, ombudspersons, or national human rights institutions to receive, consider and make recommendations for the resolution of complaints by human rights defenders about violations of their rights;
 vi) ensure that their legislation, in particular on freedom of association, peaceful assembly and expression, is in conformity with internationally recognised human rights standards and, where appropriate, seek advice from the Council of Europe in this respect;
 vii) ensure the effective access of human rights defenders to the European Court of Human Rights, the European Committee of Social Rights and other human rights protection mechanisms in accordance with applicable procedures;
 viii) co-operate with the Council of Europe human rights mechanisms and in particular with the European Court of Human Rights in accordance with the ECHR, as well as with the Commissioner for Human Rights by facilitating his/her visits, providing adequate responses and entering into dialogue with him/her about the situation of human rights defenders when so requested;
 ix) consider signing and ratifying the European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations (ETS No. 124);
 x) consider signing and ratifying the 1995 Additional Protocol to the European Social Charter and to consider recognising the right of national NGOs fulfilling the criteria mentioned therein to lodge collective complaints before the European Committee of Social Rights;
 xi) provide measures for swift assistance and protection to human rights defenders in danger in third countries, such as, where appropriate, attendance at and observation of trials and/or, if feasible, the issuing of emergency visas;
3. Calls on all Council of Europe bodies and institutions, to pay special attention to issues concerning human rights defenders in their respective work. This shall include providing information and documentation, including on relevant case law and other European standards, as well as encouraging co-operation and awareness-raising activities with civil society organisations and encouraging human rights defenders’ participation in Council of Europe activities;
4. Invites the Commissioner for Human Rights to strengthen the role and capacity of his Office in order to provide strong and effective protection for human rights defenders by:
 i) continuing to act upon information received from human rights defenders and other relevant sources, including ombudsmen or national human rights institutions;
 ii) continuing to meet with a broad range of defenders during his country visits and to report publicly on the situation of human rights defenders;
 iii) intervening, in the manner the Commissioner deems appropriate, with the competent authorities, in order to assist them in looking for solutions, in accordance with their obligations, to the problems which human rights defenders may face, especially in serious situations where there is a need for urgent action;
 iv) working in close co-operation with other intergovernmental organisations and institutions, in particular the OSCE/ODHIR focal point for human rights defenders, the European Union, the United Nations Secretary General’s Special Representative on Human Rights Defenders and other existing mechanisms;



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