Council of Europe legislative framework

The Council of Europe was founded to uphold democracy and the Rule of Law. The European Convention on Human Rights and the European Social Charter are important human rights treaties that have been developed and monitored within the framework of the Council of Europe. The treaties help national equality bodies to achieve unity, prohibit discrimination, and increase awareness on the importance of equality within Member States.

European Convention on Human Rights (ECHR)

The ECHR is an international agreement adopted by 47 European States, including all EU Member States. It is legally binding and the States who adopted it have an obligation to ensure it is fully applied and respected on their territories. If they do not fulfil this obligation they can face charges for violation of the ECHR before the European Court of Human Rights in Strasburg.

Article 14 of the ECHR prohibits any discrimination in the enjoyment of the rights of the Convention (right to life, right to respect for private and family life, freedom of expression, freedom of thought, conscience and religion, etc.) 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”. Thus, in the ECHR prohibition of discrimination is a provision with an ‘accessory nature’, ensuring only the equal enjoyment of the rights set out in the Convention. At the same time, Article 14 prohibits discrimination based on an open list of grounds, therefore going further than EU legislation.

Directly or indirectly, through the prohibition of discrimination in Article 14, other specific provisions of the ECHR can in many cases have an influence on equality and non-discrimination legislation in the Member States. This is all the more so given that the European Court of Human Rights often decides the case on the substantive article without considering Article 14. For instance, issues linked to discrimination on the grounds of religion or belief are often covered by Article 9, Freedom of thought, conscience and religion; and discrimination on the grounds of sexual orientation can in certain cases be covered by Article 8, right to respect for private and family life.

Protocol 12 to the ECHR introduces a general prohibition of discrimination in relation to the ‘enjoyment of any right set forth by law’ and ‘by any public authority’. Where Protocol 12 has been ratified by a member state, it comes into effect when there is a clear obligation on a public authority under national law to behave in a particular manner, in the exercise of discretionary powers, and any other act or omission by a public authority. The Explanatory Report on Protocol 12 further broadens its remit by making it applicable to relationships between private persons who are exercising functions that relate to the offering of public goods and services. As a result, it has a far greater scope than Article 14, which only relates to the rights guaranteed by the convention. Subsequently, many member states have refused to ratify Protocol 12 due to its broad scope and the way in which it advances European Law into areas normally regulated by Member states.

For more on the impact of the European Convention on Human Rights, see the dedicated Council of Europe website.

European Social Charter and Revised European Social Charter (ESC)

The ESC is a Council of Europe treaty that guarantees fundamental social and economic rights as a counterpart to the European Convention on Human Rights, which refers to civil and political rights. It guarantees a broad range of everyday human rights related to employment, housing, health, education, social protection and welfare.

The Charter lays specific emphasis on the protection of vulnerable persons such as elderly people, children, people with disabilities and migrants. It requires that enjoyment of the abovementioned rights be guaranteed without discrimination.

The European Committee of Social Rights monitors adherence to the ESC by reviewing national reports and through collective complaints lodged by the social partners and other non-governmental organisations.

Convention on preventing and combating violence against women and domestic violence (Istanbul Convention)

The Istanbul Convention is based on the understanding that violence against women is a form of discrimination against women and it is committed against women because they are women. It is the obligation of the State to fully address it in all its forms and to take measures to prevent violence against women, protect its victims and prosecute the perpetrators. Failure to do so would make it the responsibility of the State. One of the chief purposes of the Istanbul Convention is to contribute to the elimination of all forms of discrimination against women and promote substantive equality between women and men, including by empowering women.

Framework Convention for the Protection of National Minorities

This Convention is one of the most comprehensive treaties designed to protect the rights of persons belonging to national minorities. Non-discrimination is a horizontal provision in the Convention.