The Council of Europe has two treaties on minority rights: the Framework Convention for the Protection of National Minorities and the European Charter on Regional and Minority Languages. The CoE also oversees the key human rights instrument for the region, the European Convention on Human Rights. The European Court of Human Rights has made several important judgements pertaining to the protection of minorities.

European Convention on Human Rights and Fundamental Freedoms (ECHR):

The main human rights instrument of the Council of Europe is the European Convention on Human Rights and Fundamental Freedoms (ECHR). There is no minority specific article in the convention. However, article 14 provides protection against discrimination: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. Protocol 12 of the Convention strengthens the provision of non-discrimination by extending it to “any right set forth by law” (article 1.1) and to any act by a public authority. However, only 17 States have ratified Protocol 12, in contrast to the 47 States that are party to the ECHR.

The European Court of Human Rights examines cases of alleged violations of the European Convention on Human Rights. Rulings of the Court are enforced by the Committee of Ministers of the CoE. The Committee receives a report of each ruling and responds with a resolution indicating the type of reform required to change domestic law to satisfy the Court’s judgment. At future meetings of the Committee, the State will need to report on the measures it is taking. Should a State fail to act, the Committee will adopt interim resolutions outlining the State’s failings.

Minorities have taken cases to the European Court of Human Rights. A recent landmark case on indirect discrimination concerned segregation of Romani children in schools in the Czech Republic.⁸⁸ In D.H. and Others v the Czech Republic, the applicants were Roma from the town of Ostrava where a disproportionate number of Romani children were placed in ‘special schools’ for persons with psychosocial disabilities. More than half of Roma children were sent to ‘special schools’ compared to 1.8% of non-Romani children and a Romani child was 27 times more likely to be sent to a ‘special school’ than a non-Romani child. The Court ruled that it is not necessary to prove discriminatory intent on the part of the government to find that the effects of an official policy are unlawfully discriminatory. Where a policy appears neutral, it is very difficult to prove discrimination and the court clarified that “when it comes to assessing the impact of a measure or practice on an individual or group, statistics which appear on critical examination to be reliable and significant will be sufficient to constitute… prima facie evidence” of indirect discrimination.⁸⁹

In the case of Nachova and Others v. Bulgaria,⁹⁰ the applicants were family members of two Roma who had been killed by the authorities who were trying to re-arrest them after they escaped. The Court found that excessive force had been used since neither man was armed nor had ever committed a violent act. The Court stated:

When investigating violent incidents and, in particular, deaths at the hands of state agents, state authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Failing to do so and treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts that are particularly
destructive of fundamental rights.⁹¹

In this case, the Court found that the authorities had failed to investigate whether racial dimensions played a part in the shootings as was claimed by eyewitnesses. The Government informed the Committee of Ministers that it had notified the Ministry of Defence and the military authorities that Bulgaria’s obligations under the Convention could be met by drawing up “instructions for the attention of prosecution authorities indicating their obligation to investigate possible racist motives in similar cases” and that instructions had been given to the military police to prevent future similar violations.

These two cases reflect the capacity of the Court to make judgements that impact positively on minority rights. Although the two cases noted here pertain to Romani minorities, the principles on non-discrimination and combating racism are relevant to all minority groups. Further information on jurisprudence of the European Court of Human Rights pertaining to minorities can be found at Moucheboeuf (2006) (see Annex IV of this Guide).

Framework Convention for the Protection of National Minorities (FCNM):

The CoE has promulgated minority specific standards. The Framework Convention for the Protection of National Minorities (FCNM) is the first legally-binding minority instrument. 39 States of the CoE are party to its provisions. It contains mainly programme-type provisions – setting out principles and objectives – and it represents minimum standards for minority protection. States are expected to implement the FCNM through their national legislation and policies. For example, the FCNM states in article 5, “The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage”. The emphasis is on national minorities exercising their individual rights in community with others. There is a collective element to the implementation of the rights. However, the rights are rights of individuals. The Advisory Committee will also apply the provisions of the FCNM separately to groups as appropriate. For instance, article 6 on tolerance, non-discrimination and inter-cultural dialogue makes no mention of national minorities per se and has been considered in connection with relevant migrant groups.

The FCNM is monitored by an Advisory Committee that assesses state compliance with the Convention by examining State and NGO reports and by visiting the countries under examination. The Advisory Committee produces an ‘Opinion’. The State will comment on the Opinion and both documents are then examined by the Committee of Ministers of the CoE, which produces a resolution in consultation with the State concerned. Resolutions have been based largely on the Advisory Committee’s Opinions. However, some governments have sought to dilute the criticism they face. Resolutions are debated in camera, which means the public and representatives of minorities are unable to take part in or monitor the debate. Minority CSOs can nevertheless submit ‘alternative reports’ on state implementation of the FCNM for consideration by the Advisory Committee.

The FCNM does not define a ‘national minority’. Although States determine the scope of application of the convention, the Advisory Committee has expressed concern over non-recognition of some minority groups that States have excluded from the protection of the FCNM. The Advisory Committee has included in its Opinions language on the margin of appreciation States have. However, it stresses that States must not make arbitrary decisions on the groups to which the Convention applies. That decision must be made on the basis of objective criteria and must take into account the right to self-identification. It is important to note also that article 2 of the FCNM requires States to apply the Convention “in good faith, in a spirit of understanding and tolerance and in conformity with the principles of good neighbourliness, friendly relations and co-operation between States”.

The FCNM covers areas including self identification, full and effective equality, development of culture and intercultural dialogue, religious belief and practice, freedom of association, media, use of minority names and languages, minority education, participation in public affairs, participation in economic and cultural life, protection against altering population proportions in minority areas and cross border contacts. The wording is frequently flexible to take into account different circumstances and to provide States a certain scope to decide how to implement the provisions, provided these are pursued in good faith and in conformity with international law. The Advisory Committee also has drafted thematic commentaries on education and on participation in economic, social and cultural life by minorities that give helpful discussions on good practice in the application of FCNM standards.

European Charter on Regional and Minority Languages:

The European Charter on Regional and Minority Languages in designed to protect and promote the minority languages which are a threatened part of Europe’s cultural heritage and to enable speakers of those languages to use them in public and in private. The Charter came into force in 1998 and currently has 23 States parties.

The Charter includes protection for languages which are “traditionally used within a given territory of a State by nationals of that State who form a group numerically smaller than the rest of the State’s population; and different from the official language(s) of that State” (article 1 (a)). It excludes languages that are dialects of the official languages of the State and the languages of recent immigrants.

In addition to the principles, Part 3 of the Charter contains 68 specific measures on the promotion of regional and minority languages in public life. States must select at least 35 measures to apply to each regional language. This gives States the flexibility to take different measures depending on the situation of each language. States are encouraged to increase the number of measures they take as their legal situation changes or financial resources increase. The specific measures relate to the following areas: education, judicial authorities, administrative authorities and public services, media, cultural activities and facilities, economic and social life and trans-frontier exchanges.

A committee of independent experts monitors State implementation of the Charter. States submit reports to the Committee of Experts, which considers them, visits the States and prepares its evaluation including proposals for recommendations. The report is submitted to the Committee of Ministers, which takes the final decision on whether to make the report public and on what recommendations to make to the State. Minority CSOs report that the recommendations made by the Committee of Experts are good. However, there is a lack of knowledge and awareness of the Charter at the national level that impedes implementation of these recommendations.

European Commission against Racism and Intolerance (ECRI)

ECRI is a statutory body of the Council of Europe providing independent monitoring and evaluation of state practice in the area of combating racism, xenophobia, anti-Semitism and intolerance. It prepares regular country reports on all CoE member States in a 4-5 year cycle. Significantly, the independent experts of ECRI undertake country visits in preparation for the final report, giving a wider scope for engagement with minorities locally. ECRI also adopted several General Policy Recommendations focusing on broad themes and specific communities, including General Policy Recommendation No. 3: Combating racism and intolerance against Roma/Gypsies in 1998 and General Policy Recommendation No. 5 Combating intolerance and discrimination against Muslims in 2000.