Youth Rights

THE COUNCIL OF EUROPE AND YOUTH RIGHTS

Introduction

Human rights, democracy and the rule of law form the three key focus areas of the Council of Europe (CoE). The CoE was founded in 1949 following the atrocities of the early 20 ^th  century and today brings together 47 Member States with a combined population of over 800 million citizens.

The two main human rights instruments of the Council of Europe are the European Convention on Human Rights and the European Social Charter. Furthermore, one of the Council of Europe’s two statutory bodies, the Committee of Ministers, provides recommendations to Member States on specific issues. This section focuses mostly on these aspects.

Youth rights have featured on the Council of Europe’s political agenda over the last few years, notably through a series of communications between the two statutory bodies, the Parliamentary Assembly (PACE) and the Committee of Ministers (CM).  The Parliamentary Assembly  brings together national parliamentarians from all of the Member States who meet four times a year in Strasbourg.  The Committee of Ministers  is the decision-making body of the Council of Europe and consists of the Foreign Ministers of all Member States or their representatives. The Parliamentary Assembly’s call for a framework convention on the rights of young people in 2011 and subsequent call for an Ombudsperson on youth rights in 2013 did not receive positive responses from the Committee of Ministers. However the Committee of Ministers has supported the drafting of a recommendation on young people’s access to rights.

Youth in the Council of Europe working structure

Youth is also a prominent part of the Council of Europe’s decision-making and working structure, through the  Joint Council on Youth  and the Youth Department. The Joint Council on Youth brings together representatives of governments and young people in a co-decision mechanism that deals with topics and policies directly affecting young people. The youth representatives form the Advisory Council on Youth, to promote the interests of young people through a participatory decision-making structure. The Advisory Council has prioritised youth rights and access to rights over the past few years, co-drafting and strongly advocating in favour of the Committee of Ministers Recommendation on Young People’s Access to Rights.

The Council of Europe’s  Youth Department  is responsible for developing guidelines, programmes and legal instruments for better youth policies, while it also supports international youth activities that promote citizenship, mobility, human rights, democracy and cultural pluralism among young people.

The Commissioner for Human Rights promotes human rights and provides advice on their protection across Europe. This is achieved through country visits and dialogue with national authorities and civil society, thematic reporting on human rights implementation and awareness raising activities. Reports and documentation by country are available on the Council of Europe  website . As country visits provide an opportunity for civil society to highlight concerns, contacting the Commissioner ahead of a visit to your country to arrange a meeting could provide a further avenue to raise concerns with respect to young people’s rights.

Finally, in his latest annual report the Secretary General of the Council of Europe highlighted the lack of monitoring mechanisms to assess the implementation of national youth policies, as well as the fact that youth structures are not recognised as equal partners in decision-making.

[7]   State of Democracy, Human Rights and the Rule of Law, Report by the Secretary General of the Council of Europe, 2016. Available here (accessed on 07/11/2016).

Recommendations from the Committee of Ministers

Recommendations from the Committee of Ministers are not legally binding on Member State. However, they express a recognition of specific issues and a general commitment to address them, providing guidance to States on how to do so. While there is no formal monitoring of implementation due to the non-binding nature, the Committee of Ministers can ask Member States to provide information on what actions they have taken to implement a recommendation. Furthermore such recommendations serve as a useful advocacy tool for civil society to draw attention and encourage government action on the issue.

The Committee of Ministers has adopted two recommendations specifically on young people and their access to rights.

1. Recommendation CM/Rec(2015)3  on access of young people from disadvantaged neighbourhoods to social rights

The Recommendation calls for policies to prevent and eradicate the poverty, discrimination, violence and exclusion faced by young people from disadvantaged neighbourhoods. The recommendation further calls for improving living conditions by ensuring access to education and training, employment, adequate and affordable housing, quality health care, amongst others.

2. Recommendation CM/Rec(2016)7  on young people’s access to rights, accompanied by an  Explanatory Memorandum

The Recommendation is wide-ranging and covers civil, political, economic, social and cultural rights. It provides guidance to States on improving access to education, autonomy and social inclusion of young people, mobility, active citizenship, democracy and participation, living together in diverse societies, access to information and protection as well as access to healthcare services. The Committee of Ministers agreed to examine follow-up by States five years after the Recommendation’s adoption, therefore it is a valuable tool that can support youth organisations in promoting youth rights between 2016 and 2021.

The European Convention of Human Rights

The European Convention on Human Rights (ECHR) focuses on civil and political rights and has been ratified by all Member States of the Council of Europe. The rights and freedoms set forth in the Convention have to be incorporated into national law and are subject to control by the European Court of Human Rights (ECtHR), [8]  which is both independent and strong. Furthermore the decisions of the ECHR are legally binding on Member States, which can be fined for violating its provisions.

In 2012 the European Court of Human Rights provided a  compilation  of relevant case-law on young people between 18-35, covering five areas:

• Access to a professional career
• Conscientious objection
• Expulsion of second-generation migrants
• Forced labour
• University studies

As of 2016 seventeen protocols had been opened for signature. The protocols either amend the framework of the Convention, requiring unanimous ratification by Member States in order to come into force, or expand the rights that can be protected, requiring a certain number of States to sign before coming into force. For more information see the list of protocols and chart of signatures and ratifications.

[8]   Ovey, Clare & White, Robin C.A., Jacobs & White, The European Convention on Human Rights (4th ed.), p.18. New York: Oxford UP, 2006.

Civil society engagement

The ECHR can in theory be used to promote youth rights through strategic litigation. This is the use of the legal system and courts to highlight a human rights violation with the aim of bringing about legal change that will eventually affect many people. While strategic litigation can be very effective when it is successful, it is also a very lengthy and resource-intensive process. It requires detailed and well-founded evidence that is in line with any requirements set by the court in question. Evidence should be supported by qualified experts and consultants willing to contribute to the case. Furthermore, it requires the exhaustion of local remedies, meaning an appeal to the ECHR must come following a negative result at the highest level of national courts to which no appeal is possible. Pro-bono legal advice is often provided to NGOs free of charge. However, this may not completely replace certain legal fees that are often difficult to predict. Whether or not the outcome of a legal case is the desired one, it sets a precedent for the likelihood of similar cases to succeed in future. Given the above the ECHR will not be considered further for the purposes of the present tool, however it can always be used as an important reference point during advocacy efforts.

The European Social Charter

The European Social Charter (ESC) complements the European Convention on Human Rights and focuses on social and economic rights. In particular the ESC covers employment and working conditions, housing, education, health, medical assistance and social protection. The original version dates from 1961 but was revised in 1996. While the two versions exist in parallel, once all Member States have ratified the revised version it will replace the original one. A list of signatures and ratifications of the original and revised ESC is available  here . Unlike the ECHR that is as a whole binding on Member States the ESC is based on a ratification system by which States may choose which provisions to accept as binding legal obligations. However, they must accept a certain minimum. Details on accepted provisions by country are available  here .

The European Committee of Social Rights (ECSR) is responsible for monitoring compliance with the ESC. This is done through two procedures: reporting by Member States, as well as consideration of Collective Complaints sent to the Committee. These two procedures are described in turn below.

Collective Complaints

A protocol allowing Collective Complaints was adopted in 1995. This allows certain organisations to raise concerns when a country’s law or practice violates one of the provisions of the Charter. However, the State in question must have accepted the provision in question. As of 2016, only 15 countries have accepted the Collective Complaints protocol. Organisations that can lodge complaints are national or international organisations of employers and trade unions, as well as international NGOs that hold participatory status with the Council of Europe and have been authorised to lodge complaints. While individual countries may grant representative NGOs within their jurisdiction the right to lodge complaints against them, as of 2016 only Finland has done so.

Civil Society Engagement

As their name suggests, Collective Complaints cannot be based on an individual case but must address wider systemic problems. There is no requirement to exhaust local remedies. Once a complaint is lodged, it is first considered on its admissibility, and whether it meets a series of criteria. If deemed admissible the complaint is then examined to judge whether or not the State has failed to comply with the ESC. If the State is found to be in violation of the ESC the State is asked to notify the Committee of Ministers (CM) of its planned measures in order to reach conformity in law and practice. The CM may adopt a resolution by simple majority vote to take account of a State’s declared intention to bring the situation into conformity. If there is no response from the State the CM may adopt a recommendation by two-thirds majority. While States must respect ECSR decisions they are not enforceable in the domestic legal system, which means that they do not carry the same weight as court decisions, for example. Further information on the Collective Complaints procedure is available  here , and a simplified overview of the process once a complaint is lodged is provided below.

Overview of the Collective Complaint procedure once a complaint is lodged

1. Collective complaint lodged
2. ECSR judges complaint admissibility

If not admissible: no further action

3. If admissible: ECSR judges the merits of the complaint

If there is no violation of the ESC: no further action

4. If there is a violation of the ESC: State must notify CM of measures planned to rectify the situation

If no notification from State: CM may adopt Recommendation (2/3 majority required)

5. If State notifies: CM may adopt resolution taking account of declared intention (simple majority)

Reporting

Member States regularly submit reports to the European Committee on Social Rights. Through the reports States describe their progress in implementing the Charter. Based on these reports the ECSR delivers conclusions on whether or not the situation complies with the ESC.

Similarly to decisions on Collective Complaints, the ECSR conclusions set out the law but are not a binding requirement on the State; national authorities must rather give the ECSR’s conclusions effect under the domestic law. The Committee of Ministers receives the Conclusions of the ECSR and adopts a Resolution that may contain individual recommendations to State parties but requires a two-thirds majority to be approved. If a State takes no action to bring it’s law and/or practice in conformity with the ESC, the Committee of Ministers may address a Recommendation, but once again requires a two-thirds majority. The ECSR conclusions are available on the online database for the ESC  here .

The articles and provisions of the ESC are divided into four thematic groups. States that have not accepted the Collective Complaints procedure report on one of the four thematic groups annually. The four different groups and their respective articles are detailed in Table 2.

States that have accepted the Collective Complaints protocol follow a simpler reporting method whereby they submit a simplified report every two years. States in this category are split into two groups to avoid over-burdening the ESCR, and are divided as detailed in Table 3. Table 4 outlines the reporting timeline for States.

Table 3:  States that have accepted the Collective Complaints procedure and are subject to simplified reporting.

Table 4: State reporting on the European Social Charter.

Civil Society Engagement

Although the European Social Charter is a weaker tool than the European Convention on Human Rights it does have the potential to provide protection for young people’s rights, particularly given its focus on social and economic rights. The European Youth Forum is starting to engage with the Collective Complaints procedure in cooperation with its member organisations. Youth organisations can begin to work with the European Social Charter.

• Identify whether your country has ratified the ESC or the revised ESC.
• Identify which articles and paragraphs the country has accepted as legally binding, in order to assess whether or not they are relevant to address key issues of concern relating to young people’s rights.
• To engage with the annual reporting it is advisable to identify the country’s reporting timeline for the various provisions it has accepted.
• Develop a timeline or strategy to submit a report to the European Committee of Social Rights. While there is no formal system for NGO participation in reporting, civil society organisations can provide information to the ECSR, by specifying how the State is failing to comply with the provisions of the Charter. Reports should be submitted to  [email protected] .

ACTION POINTS: Promoting youth rights through the Council of Europe human rights system

Identify the following:

1)      Whether the country* has ratified the original or Revised European Social Charter.

2)      Which provisions of the European Social Charter the country has accepted.

3)      Whether the country has accepted the Collective Complaints procedure.

4)      When the country is reporting on the articles that are of interest to your organisation (see Table 4).

5)      Whether your government is aware of the Committee of Ministers Recommendation on Young People’s Access to Rights, by contacting the relevant Ministry (e.g. Foreign Affairs). If so, what is it doing to implement the Recommendation?

* Note: International youth NGOs can also work with their national members to engage in such work

YOUTH RIGHTS AT EU AND NATIONAL LEVEL

Introduction

This section will focus on a few provisions that exist at national level as a result of EU or international obligations and that can be useful for youth organisations or young people in promoting their human rights.

The Treaty on the Functioning of the European Union and the Charter of Fundamental Rights of the EU both explicitly prohibit discrimination on the grounds of age. The Charter is legally binding on EU institutions as well as Member States when they are implementing European law at the national level. The Charter can be used to ensure compliance of European law with certain aspects of youth rights. [9]

The EU also has a range of anti-discrimination legislation in the form of Directives, which are legally binding on Member States.

• Employment Equality Directive (2000/78/EC) , which promotes equal treatment on the grounds of religion or belief, disability, age or sexual orientation in employment and occupation.
• Race Equality Directive (2000/43/EC) , which bans discrimination based on racial or ethnic origin in the labour market, education, social protection (including social security and healthcare), social advantages, access to and supply of goods and services (including housing), and membership of and involvement in an organisation of workers or employers.
• Directives 2004/113/EC  and  2006/54/EC , which provide a framework for equal treatment between men and women in access to and supply of goods and services and in matters of employment and occupation, respectively.

Table 5: Overview of protection from discrimination based on EU law.

Further extending protection from discrimination across all areas of life and on the basis of more grounds remains a priority for civil society. However progress at EU level is slow due to resistance and lack of commitment from Member States. Nonetheless, national legislation in a number of EU countries is more comprehensive than what is provided for by EU law.

Equality Bodies

Under EU law, Member States are obliged to set up Equality Bodies that monitor and report on issues of discrimination, assist victims of discrimination, and promote equality. The grounds and fields of discrimination that an equality body can work on vary across countries, as do the functions and litigation powers of the equality bodies. The European network of equality bodies (Equinet) has developed an overview of each Equality body per country, available  here . For an overview of mandates regarding grounds and fields of discrimination visit the page  here .

The independent assistance provided by equality bodies can involve a variety of activities including:

• Providing information about the existence of anti-discrimination laws and about the possibility to take legal action to seek remedy or compensation for an act of discrimination;
• Providing information about the existence of anti-discrimination laws and about the possibility to take legal action to seek remedy or compensation for an act of discrimination;
• Helping people who experience discrimination to come to an amicable settlement/mutual agreement (mediation) with the alleged perpetrators;
• Giving legal advice and representing in front of the courts people who have been discriminated;
• Acting as an impartial advisor or third-party intervener;
• Investigating and hearing discrimination complaints as a quasi-judicial body and deciding on the merits of the case, either with a legally binding or a legally non-binding decision.

The EU Fundamental Rights Agency exists since 2007 and has the mandate to collect and analyse data on fundamental rights. The Agency does not provide direct support to individuals. However, it is developing an interactive tool that will direct EU citizens towards the relevant national bodies in case they feel their fundamental rights have been violated. A beta version of the Clarity tool is available at:  https://fra.europa.eu/clarity/en/tool

VİDEO: https://youtu.be/bvV7ICXyw8o

National Human Rights Institutions

In addition to Equality Bodies that exist in all EU and some non-EU countries, UN Member States are encouraged to have National Human Rights Institutions (NHRIs). NHRIs are State-mandated bodies that are independent of government and are responsible for protecting and promoting human rights at the national level. NHRIs serve various functions including monitoring the human rights situation on the ground and reporting to international monitoring bodies. Furthermore, NHRIs provide support to individuals and ensure compliance of national laws with international human rights standards.

NHRIs provide a useful link between civil society organisations and the State, as well as between the national and international arena. A list of NHRIs by country is available  here .

ACTION POINTS: Promoting youth rights at European Union and national level

Identify the following:

1. Which grounds of discrimination are protected and in which areas of life, by national legislation.
2. Whether the country has an  equality body , what its  mandate  is and what  functions  it carries out.
3. Whether the country has a  National Human Rights Institution  and what its key activities are.
4. Check the Fundamental Rights Agency’s  Clarity tool  for individual cases in EU Member States.