The 10th anniversary of the European Union Agency for Fundamental Rights (FRA) offers an opportunity to reflect on some of the dynamics underpinning the major fundamental rights developments in the EU since 2007.
This focus section reflects on the progress the EU has made over the last 10 years in establishing fundamental rights as the cornerstone of its identity. It explores the tangible impact of the fundamental rights framework by drawing on evidence and legal expertise provided by FRA over the first decade of its existence.
In this chapter: A time of progress and crisis?
An EU fundamental rights culture emerges
Fundamental rights under pressure: experiences in four key areas
Download: Focus - Between promise and delivery: 10 years of fundamental rights in the EU
The Charter of Fundamental Rights of the European Union complements national human rights documents and the European Convention on Human Rights (ECHR). Its potential is not yet fully exploited, with references thereto in national courts, parliaments and governments limited in number and often superficial. However, there are examples of the Charter adding value and profiting from its standing as part of Union law, especially in court decisions. Meanwhile, EU Member States continue to lack policies aimed at promoting the Charter – though awareness of the need to train legal professionals on Charter-related issues appears to be growing.
In this chapter: National high courts’ use of the Charter: a mixed picture
National legislative processes and parliamentary debates: Charter of limited relevance
National policy measures and training: initiatives lacking
Download: Chapter 1. EU Charter of Fundamental Rights and its use by Member States
FRA opinion 1.1
The EU and its Member States should encourage greater information exchange on experiences and approaches between judges and administrations within the Member States but also across national borders. In encouraging this information echange, Member States should make best use of existing funding opportunities, such as those under the Justice programme.
According to the case law of the Court of Justice of the European Union (CJEU), the EU Charter of Fundamental Rights is binding on EU Member States when acting within the scope of EU law. The EU legislature affects, directly or indirectly, the lives of people living in the EU. EU law is relevant in the majority of policy areas. In light of this, the EU Charter of Fundamental Rights should form a relevant standard when judges or civil servants in the Member States deliver on their day-to-day tasks. FRA’s evidence suggests, however, that judiciaries and administrations make only rather limited use of the Charter at national level. More awareness could contribute to increased and more consistent application of the Charter at national level.
FRA opinion 1.2
National courts, as well as governments and/or parliaments, could consider a more consistent ‘Article 51 (field of application) screening’ to assess at an early stage whether a judicial case or legislative file raises questions under the EU Charter of Fundamental Rights. The development of standardised handbooks on practical steps to check the Charter’s applicability – so far the case only in very few Member States – could provide legal practitioners with a tool to assess the Charter’s relevance in a particular case or legislative proposal.
According to Article 51 (field of application) of the EU Charter of Fundamental Rights, all national legislation implementing EU law has to conform to the Charter. As in past years, the Charter’s role in legislative processes at national level remained limited in 2016: the Charter is not a standard that is explicitly and regularly applied during procedures scrutinising the legality or assessing the impact of upcoming legislation – whereas national human rights instruments are systematically included in such procedures. Moreover, just as in past years, many decisions by national courts that used the Charter did so without articulating a reasoned argument about why the Charter applied in the specific circumstances of the case.
1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.
2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.
FRA opinion 1.3
EU Member States should ensure that relevant legislative files and policies are checked for Charter compliance and increase efforts to ensure that Charter obligations are mainstreamed whenever states act within the scope of EU law. This could include dedicated policymaking to promote awareness of the Charter rights and targeted training modules in the relevant curricula for national judges and other legal practitioners. As FRA has stressed in previous years, it is advisable for the Member States to embed training on the Charter in the wider human rights framework, including the European Convention on Human Rights (ECHR) and the case law of the European Court of Human Rights (ECtHR).
Under Article 51 of the EU Charter of Fundamental Rights, EU Member States are obliged to respect and observe the principles and rights laid down in the Charter, while they are also required to actively “promote” the application of these principles and rights. In light of this, more policies promoting the Charter and its rights at national level should be expected. Whereas such policies are rare, there appear to be increased efforts to provide human rights training to relevant professional groups.
EU Member States did not reach an agreement on the proposed Equal Treatment Directive by the end of 2016. Several Member States, however, continued to extend protection against discrimination to different grounds and areas of life. Various domestic court decisions upheld the rights of persons with disabilities, and diverse efforts at international, European and national level sought to advance LGBTI equality. Meanwhile, measures and proposals to ban certain garments sparked debates on freedom of religion and belief, amid fears caused by the threat of terrorism. The year ended with a growing acknowledgement that addressing discrimination based on a single ground fails to capture the different ways in which people in the EU experience discrimination in their daily lives.
In this chapter: Proposed Equal Treatment Directive still not adopted in 2016
Member States broaden scope of non-discrimination laws
Bans on select clothing risk curtailing freedom of religion or belief
Domestic courts uphold rights of persons with disabilities
Taking steps to advance LGBTI equality
Fostering equal treatment by tackling multiple discrimination
Download: Chapter 2. Equality and non-discrimination
FRA opinion 2.1
The EU legislator should consider all avenues to ensure that the proposed Equal Treatment Directive is adopted swiftly to guarantee equal protection against discrimination on the grounds of religion or belief, disability, age or sexual orientation across key areas of life.
Negotiations on the proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation – the Equal Treatment Directive – entered their eighth year in 2016. Adopting this directive would guarantee that the EU and its Member States offer a comprehensive legal framework against discrimination on these grounds on an equal basis. By the year’s end, the negotiations had not reached the unanimity required in the Council of the EU for the directive to be adopted, with two Member States holding general reservations towards the proposal. As a result, EU law is still effectively marked by a hierarchy of grounds of protection from discrimination. Article 21 (principle of non-discrimination) of the EU Charter of Fundamental Rights prohibits discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation. Article 19 of the Treaty on the Functioning of the European Union holds that the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
As in previous years, EU Member States extended protection against discrimination to additional grounds and different areas of life in 2016. For instance, some Member States introduced a person’s socio-economic status or gender reassignment as protected grounds in their national legislation. Other Member States extended non-discrimination law to areas such as consumer protection, age redundancy clauses and retirement age. Such steps further contribute to tackling discrimination and foster equal treatment across a broad range of key areas of life.
While awareness of the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) persons is on the rise across the European Union, hurdles to their full enjoyment of their fundamental rights remain. This report updates FRA’s 2010 report on homophobia, transphobia and discrimination on grounds of sexual orientation and gender identity.
The fundamental rights of lesbian, gay, bisexual and transgender (LGBT) people are often not respected across the EU. Public officials and other professionals in education, healthcare and law enforcement are entrusted with the duty to ensure that everyone’s fundamental rights are protected and promoted.
FRA opinion 2.3
EU Member States should pay utmost attention to the need to safeguard fundamental rights and freedoms when considering any bans on symbols or garments associated with religion. Any legislative or administrative proposal to this end should not disproportionally limit the freedom to exercise one’s religion. When considering such bans, fundamental rights considerations and the need for proportionality should be embedded from the outset.
Against a backdrop of heightened tension caused by the threat of terrorism in the EU in 2016, national courts dealt with the question of when it is acceptable to ban particular types of clothing, with related cases pending before the Court of Justice of the EU (CJEU). These cases revealed that the introduction of such bans risks disproportionally affecting and leading to discrimination against Muslim women who choose to wear certain garments as an expression of their religious identity or beliefs. Article 10 of the EU Charter of Fundamental Rights guarantees everyone’s right to freedom of thought, conscience and religion. This right includes the freedom to change religion or belief and the freedom to manifest religion or belief in worship, teaching, practice and observance, either alone or in community with others. Article 21 of the EU Charter of Fundamental Rights prohibits any discrimination on the ground of religion or belief. Article 22 of the EU Charter of Fundamental Rights further provides that the Union shall respect cultural, religious and linguistic diversity.
1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. 2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.
The Union shall respect cultural, religious and linguistic diversity.
The year 2016 saw a growing acknowledgement that addressing discrimination from the perspective of a single ground fails to capture the different ways in which people experience discrimination in their daily lives. This is evidenced in the continued trend at national level to enlarge the scope of anti-discrimination legislation by adding protected grounds and/or areas of life in relevant national legislation. Yet, the EU and its Member States still tend not to deal explicitly with multiple discrimination when developing legal and policy instruments. By the end of 2016, only nine EU Member States explicitly covered multiple discrimination in national legislation. Such an approach can lead to better recognition of how people experience discrimination in their daily lives and enable devising courses of action that would truly foster inclusion.
Racist and xenophobic reactions towards refugees, asylum seekers and migrants persisted across the European Union in 2016. Muslims experienced growing hostility and intolerance, while discrimination and anti-Gypsyism continued to affect many Roma. The European Commission set up a High Level Group on combating racism, xenophobia and other forms of intolerance to support national efforts in this area, as well as to counter hate crime and hate speech. EU Member States targeted hate crime in diverse ways, reviewing classifications of bias motivations, conducting awareness-raising campaigns and providing specialised training to law enforcement officers and prosecutors. Meanwhile, the European Commission continued to monitor implementation of the Racial Equality Directive. Recurring challenges include various impediments to equality bodies’ effectiveness and independence, discriminatory ethnic profiling and a lack of national action plans to fight racism.
In this chapter: Refugees, asylum seekers and migrants remain targets of racism and xenophobia
EU steps up efforts to counter hate speech and hate crime
Tackling discrimination effectively in line with the Racial Equality Directive
Member State action plans to fight racism still lacking
Download: Chapter 3. Racism, xenophobia and related intolerance
FRA opinion 3.1
EU Member States should ensure that any case of alleged hate crime or hate speech – including those specifically targeting asylum seekers, refugees and migrants – is effectively investigated, prosecuted and tried. This needs to be done in accordance with applicable national provisions and, where relevant, in compliance with the provisions of the EU Framework Decision on Racism and Xenophobia, European and international human rights obligations, as well as ECtHR case law on hate crime and hate speech. Member States could also collect more detailed data on incidents that specifically target refugees, asylum seekers and migrants.
Racist and xenophobic reactions to the arrival of refugees, asylum seekers and migrants in the EU that marked 2015 continued unabated in 2016. They included hate speech, threats, hate crime and even murder. Yet very few Member States collect specific data on incidents that target refugees, asylum seekers and migrants. This is particularly relevant for the implementation of Article 1 of the EU Framework Decision on Racism and Xenophobia, which outlines measures Member States shall take to punish certain intentional racist and xenophobic conduct. Article 4 (a) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) obliges State parties to make incitement to racial discrimination, as well as acts of violence against any race or group of persons, offences punishable by law. All EU Member States are parties to ICERD.
Asylum seekers and migrants face various forms of violence and harassment across the European Union (EU). As this month’s report on the migration situation underscores, such acts are both perpetrated and condoned by state authorities, private individuals, as well as vigilante groups. They increasingly also target activists and politicians perceived as ‘pro-refugee’.
FRA opinion 3.2
EU Member States should adopt specific national action plans to fight racism, racial discrimination, xenophobia and related intolerance. In this regard, Member States could follow the exhaustive and practical guidance offered by the Office of the United Nations High Commissioner for Human Rights on how to develop such specific plans. In line with this guidance, the action plans should set goals and actions, assign responsible state bodies, set target dates, include performance indicators, and provide for monitoring and evaluation mechanisms.
Few EU Member States had dedicated national actions plans to fight racial discrimination, racism or xenophobia in place in 2016. This is the case even though the United Nation’s Durban Declaration and Programme of Action resulting from the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance assigns states primary responsibility for combating racism, racial discrimination, xenophobia and related intolerance. Implementing such plans would provide EU Member States with an effective means for ensuring that they meet their obligations under the Racial Equality Directive and the Framework Decision on Racism and Xenophobia. The EU High Level Group on combating racism, xenophobia and other forms of intolerance – formed in June 2016 –provides EU Member States with a forum for exchanging practices to secure the successful implementation of such action plans.
FRA opinion 3.3
EU Member States should make efforts to systematically record, collect and publish annually comparable data on ethnic discrimination and hate crime to enable them to develop effective, evidence-based legal and policy responses to these phenomena. These data should include different bias motivations as well as other characteristics, such as incidents’ locations and anonymised information on victims and perpetrators. Any data should be collected in accordance with national legal frameworks and EU data protection legislation.
Systematically collecting disaggregated data on incidents of ethnic discrimination, hate crime and hate speech can contribute to better application of the Racial Equality Directive and the Framework Decision on Racism and Xenophobia. Such data also facilitates evaluations of policies and action plans to prevent and combat racism, xenophobia and related intolerance. Evidence collected by FRA shows, however, that persistent gaps remain in how EU Member States record incidents of ethnic discrimination and racist crime. Unreported incidents remain invisible and preclude victims from seeking redress. This is particularly relevant considering EU Member States’ obligation to actively ensure the effective protection of victims and guarantee their access to effective protection and remedies under Article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination. Through the EU High Level Group on Combating Racism, Xenophobia and other forms of intolerance, FRA continues to work with Member States, EU institutions and international organisations to help improve the recording of and data collection on hate crime.
In response to the Council conclusions on combating hate crime in the European Union, which invited EU Member States to take appropriate measures for increasing the reporting of hate crimes by victims, FRA established the Working Party on Improving Reporting and Recording of Hate Crime in the EU.
This compendium is the key output of the Working Party. It collates practices for combating hate crime from across the EU, with a step-by-step description of the practice broken down by country and category. The aim of the compendium is to help policymakers and practitioners such as law enforcement officers understand what is being done elsewhere in the EU to combat hate crime, and which elements could be adapted for use in their own national contexts.
FRA opinion 3.4
EU Member States should allocate to equality bodies the human, technical and financial resources, premises and infrastructure necessary to allow them to fulfil their functions and deploy their powers within their legal mandate effectively and independently.
Evidence from 2016 shows that a number of equality bodies faced budgetary and staff cuts or legislative amendments relating to their mandates, which could affect their effective functioning. Article 13 (2) of the Racial Equality Directive requires all EU Members States to designate an equality body or bodies for the promotion of equal treatment of all persons without discrimination on the grounds of racial or ethnic origin. However, the directive only provides minimum standards for the competences of equality bodies. In the context of data protection, EU law refers explicitly to independence and defines what such independence requires. The General Data Protection Regulation, adopted in 2016 calls for sufficient “human, technical and financial resources, premises and infrastructure” for data protection authorities.
FRA opinion 3.5
EU Member States should end discriminatory forms of ethnic profiling. This could be achieved through providing systematic training on anti-discrimination law to law enforcement officers, as well as by enabling them to better understand unconscious bias and challenge stereotypes and prejudice. Such trainings could also raise awareness on the consequences of discrimination and on how to increase trust in the police among the public. In addition, EU Member States could consider recording the use of stop-and-search powers, and in particular recording the ethnicity of those subjected to stops, in accordance with national legal frameworks and EU data protection legislation.
Members of ethnic minority groups continued to face discriminatory ethnic profiling by the police in 2016 against a backdrop of heightened tension caused by terrorist attacks in EU Member States. This practice contradicts the principles of the International Convention on the Elimination of All Forms of Racial Discrimination, Article 14 (prohibition of discrimination) of the European Convention on Human Rights, relevant jurisprudence of the European Court of Human Rights, as well as primary and secondary EU law. Training and internal monitoring could help to detect disproportionate targeting of ethnic minorities and lead to corrective action by the relevant authorities.
Despite the ambitious goals set by national Roma integration strategies and the significant contribution of EU funds, little progress was visible in 2016. Over the past year, evidence on the situation of Roma in employment, education, housing and health shows that progress has been slow in respect to implementation of the EU Framework for National Roma Integration Strategies. Discrimination and anti-Gypsyism persist, and de facto segregation in housing and education continue to affect many Roma. The proposed European Pillar of Social Rights could give new impetus to Roma integration efforts, if it includes explicit reference to the right to non-discrimination guaranteed by Article 21 of the EU Charter of Fundamental Rights.
In this chapter: Another challenging year for Roma integration
Improving efforts for Roma inclusion
Download: Chapter 4. Roma integration
FRA opinion 4.1
EU Member States should review their national Roma integration strategies (or set of integrated policy measures) to ensure that Roma themselves are empowered to actively engage in the process of Roma inclusion. Member States should explicitly identify and implement specific measures to promote the active and meaningful participation and engagement of Roma, especially at local level.
During 2016, Roma people across the EU continued to face discrimination, segregation and social exclusion. The limited progress in implementing national Roma integration strategies shows the need for a thorough review of the proposed and planned interventions. There is also a need to promote the active and meaningful participation of Roma, particularly at local level. For local level Roma integration to succeed, the active involvement of multiple stakeholders is of utmost importance, including local authorities, civil society and representatives of all sectors of the local population. National level participation needs to be translated into local-level engagement of Roma and local authorities to produce tangible results on the ground that can be monitored.
LERI is a qualitative action research project under FRA’s multi-annual Roma Programme. It was developed in response to the European Commission’s Communication on an EU Framework for National Roma integration strategies up to 2020. LERI brings together local authorities and residents, in particular Roma, to investigate how they can best be involved in Roma integration actions, and identify which aspects of these actions work, which do not, and why. The aim of the project is to facilitate the engagement of all local stakeholders, including Roma, in joint efforts to enable Roma inclusion. The experience gained and the lessons learned during the process will help improve the design, implementation and monitoring of Roma integration policies and actions at the local level.
Findings of FRA’s second wave of the European Union Minorities and Discrimination Survey (EU-MIDIS II) show that Roma continued to be discriminated against because of their ethnicity in 2016. They face social exclusion and marginalisation, exacerbated by poverty, and are victims of hate crime. Most Roma living in the EU still do not enjoy their right to non-discrimination as recognised under Article 21 of the EU Charter of Fundamental Rights, the Racial Equality Directive and other European and international human rights instruments. While the Racial Equality Directive outlaws ethnic discrimination and the EU’s Framework Decision on Racism and Xenophobia requires criminal sanctions, such legal measures alone do not suffice to address the discrimination of Roma. They need to be combined with active inclusion policies to address the racial inequality and poverty that Roma frequently experience.
FRA opinion 4.3
The EU should consider including Roma integration in the context of the proposed European Pillar of Social Rights. The pillar should envisage specific provisions addressing the risk of structural discrimination, by, for example, reinforcing the provisions for equal treatment in the workplace and ensuring marginalised populations can effectively exercise their rights.
Findings of FRA’s second EU Minorities and Discrimination Survey (EU-MIDIS II) show that employment is an area where discrimination against Roma triggers a chain of other vulnerabilities – namely, as regards income, education and housing conditions. Entire households, and not just the unemployed, bear the negative implications of unemployment. Roma children and Roma women constitute especially vulnerable groups with their rights at risk of violation.
Some 80% of Roma surveyed live below their country’s at-risk-of-poverty threshold; every third Roma lives in housing without tap water; every third Roma child lives in a household where someone went to bed hungry at least once in the previous month; and 50% of Roma between the ages of six and 24 do not attend school. This report underscores an unsettling but unavoidable reality: the European Union’s largest ethnic minority continues to face intolerable discrimination and unequal access to vital services.
FRA opinion 4.4
EU Member States should – in accordance with national legal frameworks, EU data protection legislation and with the active and meaningful engagement of Roma communities – collect anonymised data disaggregated by ethnic identity, allowing the assessment of the National Roma Integration Strategies and policies on Roma inclusion. Eurostat could include relevant questions in large-scale surveys, such as the Labour Force Survey and the EU Statistics on Income and Living Conditions, thereby following the recommendation of the European Court of Auditors. In addition, Member States should develop or use existing monitoring tools of national Roma integration strategies to assess the impact of Roma integration measures.
Tracking progress on Roma integration requires solid data – both on the measures taken, the processes and their outcomes for the people. More needs to be done to ensure the availability of robust data collection and solid monitoring of Roma integration. The European Court of Auditors’ Special Report on the EU policy initiatives and financial support for Roma integration confirmed this need. It found that the lack of comprehensive and robust data remains problematic not only in relation to projects, but also for policymaking at EU and national level. However, tools allowing for solid monitoring do exist and the relevant actors can make use of these tools.
More than 5,000 people died when crossing the sea to reach Europe in 2016, even though irregular arrivals by sea dropped by over 60 % from 2015, totalling some 350,000 in 2016. Wide-ranging changes to the European asylum system were proposed while efforts to improve the efficiency of return policies intensified. Legal avenues to reach safety in Europe remained illusory for most migrants, since new restrictions to family reunification in some EU Member States offset the small progress achieved in humanitarian admissions. Information technology systems were reinforced to better combat irregular migration and respond to threats of serious crimes. Meanwhile, integrating the significant number of people granted international protection proved challenging, including in the educational context.
In this chapter: Displacement trends trigger major changes in asylum policies
Information systems bring new risks and opportunities
Alternatives to detention remain underutilised
Legal avenues to safety in the EU remain illusory
Integration measures for recently arrived refugees and migrants in education
Download: Chapter 5. Asylum, visas, migration, borders and integration
FRA opinion 5.1
The EU and its Member States should ensure that information systems for migration management are designed so that officers who handle the data contained therein can only access data in accordance with their work profiles. Officers should only have access to data relevant for the specific tasks they are carrying out at a given moment in time, and be fully aware of which databases they are consulting. Since interoperability means that more data – including biometric data – are more easily accessible, Member States should develop quality standards and administrative procedures to secure the accuracy of the data and limit the risks of unauthorised sharing of data with third parties or countries. Moreover, they should introduce specific safeguards to guarantee that interoperability does not lead to adverse effects on the rights of vulnerable persons, such as applicants for international protection or children, or to discriminatory profiling.
In 2016, EU institutions and Member States made significant efforts to develop further information systems for migration management and internal security purposes. Existing systems were modified and new systems were proposed. For the future, the plan is to make such systems ‘interoperable’, allowing the competent authorities to access multiple systems simultaneously. A forthcoming FRA publication on the interoperability of EU information systems will address the related fundamental rights concerns. In many cases, the fundamental rights impact of information systems is not immediately visible. The consequences of storing incorrect personal data stored may affect an individual only years later – for example, when applying for a visa or a residence permit. Article 8 (protection of personal data) of the EU Charter of Fundamental Rights and in particular its principle of purpose limitation (i.e. that data are only used for the purpose for which they were collected) is a central standard when developing technical solutions to improve interoperability between information systems. Therefore, all steps to enhance existing information systems and create new ones should be subject to a comprehensive fundamental rights impact assessment.
Processing biometric data for immigration, asylum and border management purposes has become common. This focus paper looks at measures authorities can take to enforce the obligation of newly arrived asylum seekers and migrants in an irregular situation to provide fingerprints for inclusion in Eurodac.
Article 6 of the EU Charter of Fundamental Rights, as well as secondary EU law in the field of asylum and return, requires Member States to examine in each individual case the viability of more lenient measures before resorting to deprivation of liberty. By the end of 2016, all EU Member States provided for alternatives to detention in their national laws, albeit in some cases for certain categories only. However, the inclusion of alternatives to detention into national legislation is in itself not a guarantee that these are applied. In practice, alternatives remain little used.
FRA opinion 5.3
EU Member States should consider using a combination of refugee-related schemes and more refugee-friendly, regular mobility schemes to promote legal pathways to the EU. In this context, they should refrain from adopting legislation that would result in hindering, preventing or significantly delaying family reunification of persons granted international protection.
The EU could consider regulating family reunification of subsidiary protection status holders to address the different approaches taken by Member States.
Legal avenues to reach safety continued to be illusory for most refugees. There was some progress on resettlement in 2016, but this was offset by a step backwards concerning family reunification, with several EU Member States introducing restrictions in their national laws. Any action undertaken by a Member State, when acting within the scope of EU law, must respect the rights and principles of the EU Charter of Fundamental Rights, which enshrines in Article 7 the right to respect for private and family life. In the case of refugees and persons granted subsidiary protection, it can generally be assumed that insurmountable obstacles prevent their families from living in the home country and that establishing family life in a transit country is usually not an option.
During the large movements along the Balkan route, many families were split up and tracing mechanisms were put under strain. More recently, several EU Member States have introduced legal restrictions on family reunification, as reported in previous FRA monthly reports.
FRA opinion 5.4
EU Member States should ensure that migrant and refugee children are effectively supported through linguistic, social and psychological support based on individual assessments of their needs. This would prepare them to attend school and integrate successfully in education and local communities. Policies and measures should be in place to avoid separated schooling and segregation and to promote access of migrant and refugee children to regular classes and the mainstream education system.
Upholding every child’s right to education in the continuing movement of migrant and refugee families in the EU is a major responsibility for the EU Member States. Article 14 of the EU Charter of Fundamental Rights and Article 28 of the United Nations Convention on the Rights of the Child guarantee the right to education to every child, including migrant and refugee children. Making sure that all children enjoy their right to education will benefit not only them, but also the societies they will live in. This underlines that it is important and beneficial for both the economy and society at large to invest in human rights. 2016 shows that most Member States provided language support and aim to integrate refugee and migrant children in regular classes, allowing for their socialisation with other children and investing in long-term and sustainable social cohesion. However, the level of separated and segregated schooling remains too high.
FRA opinion 5.5
EU Member States should address adequately discriminatory or violent reactions against the schooling of migrant and refugee children, both through law enforcement and by promoting mutual understanding and social cohesion. They should apply positive measures for fighting prejudices and help eradicate unfounded concerns. Furthermore, the Member States’ authorities should enforce laws and rules against discrimination and hate-motivated crimes on any ground – including ethnic origin, race and religion – that are in force in all EU Member States.
FRA evidence shows that in 2016 most EU Member States stepped up their efforts to introduce migrant and refugee children in education and support their integration. However, in very few cases, there are still migrant and refugee children who do not attend school, and some local communities and parents of native children react negatively to or even with violence against their schooling together with other children. Expressions of intolerance and hatred towards migrant and refugee children and their families that lead to the deprivation of the children’s right to education violates EU and national legislation against discrimination and hatred. Addressing parents’ concerns can support integration and promote the participation of migrants and refugees in local communities.
FRA opinion 5.6
EU Member States should share good practices and experiences in integration through education, promoting the participation of children’s parents and families in school life, and making the right to education a reality for all children.
Involving children’s parents and families in school life and supporting their efforts to get involved is a crucial part of the education and integration process. A third of the EU Member States do provide measures to support and encourage parents and families of migrant and refugee children by involving them in the education process through information, mediation and language support. Such measures may improve the children’s school performance, their and their families’ integration in education and in local communities, and foster better community relations. The European Integration Network, whose status was upgraded through the European Commission Action Plan on Integration launched in June 2016, is an adequate framework and space for sharing best practices and solutions that can help Member States to both fulfil their human rights obligations and invest successfully in more cohesive and inclusive societies.
The standards, procedures and institutions that ensure human and fundamental rights in the EU cover local, national and international organisations including the EU itself, the Council of Europe and the United Nations (UN).
The list below describes key developments during 2016 in relation to a number of core international obligations that the EU and its Member States have taken on. Each heading links to a page where full data can be found.
What commitments have EU Member States made to Council of Europe human rights law instruments? (Acceptance of selected Council of Europe conventions)
During 2016, four EU Member States –
Bulgaria, Denmark, France and Sweden – ratified Protocol No. 15 to the European Convention on Human Rights, which reduces the time-limit for applications and stresses the subsidiarity principle and the margin of appreciation. With this, 17 EU Member States have ratified the protocol. An additional eight have signed it, including Croatia in 2016.
Greece in 2016 became the 20th EU Member State to become party to the European Social Charter (revised). The remaining eight are all party to the original Charter.
Bulgaria ratified the Additional Protocol to the European Charter of Local Self-Government – concerning “the right to participate in the affairs of a local authority” – becoming the ninth EU Member State party to the instrument.
Czech Republic signed the Council of Europe Convention on Action against Trafficking in Human Beings in 2016. The other 27 EU Member States are already parties to the convention.
Three additional EU Member States – Czech Republic, Estonia and Slovakia – ratified the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (CSEC) in 2016, bringing to 26 the number of EU Member States who are parties.
Estonia in 2016 ratified the Council of Europe Convention on Access to Official Documents – the fifth EU Member State to do so.
Following Belgium and Romania’s ratification of the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) during the year, 14 EU Member States are now parties. With the Czech Republic’s signature in 2016, all remaining 14 have signed the convention. The EU itself also took steps to become party to the convention in 2016, signing on 13 June 2017.
What commitments have EU Member States made under the specific Council of Europe instruments on social rights? (Acceptance of European Social Charter provisions)
Greece ratified the (revised) European Social Charter in 2016. In addition, three other EU Member States – Latvia, Malta and Slovakia – accepted new provisions under the revised European Social Charter, expanding the list of rights by which they are bound.
What assessment has the Council of Europe expert body on social rights made in terms of EU Member States’ compliance with its obligations? (Conformity of national laws and practices with European Social Charter provisions)
A procedural change has reduced the reporting obligation to every other year for states that have accepted the collective complaints procedure on the European Social Charter. Additional limitations on the obligation to report also apply. In 2016, the European Committee on Social Rights (ECSR) required state parties to submit information on their laws and practices giving effect to provisions in the thematic area “employment, training and equal opportunities”. Conclusions were issued in relation to 23 EU Member States.
The ECSR deemed five EU Member States to be in conformity with 85 % or more of the examined provisions of the Social Charter:
Estonia, Finland, Germany, Latvia, and Lithuania. Four Member States were deemed to be in conformity with fewer than 70 % of examined provisions: Bulgaria, Malta, Romania, and Slovakia.
Percentage figures are based on those provisions within the year’s scope of assessment to which states agreed to be subject to.
How many complaints from individuals in EU Member States are brought before the European Court of Human Rights (ECtHR) that qualify for a judicial assessment? (Applications allocated to a judicial formation (ECtHR) per 10,000 inhabitants)
Like the previous year, 2016 saw a sharp increase in applications from
Hungary allocated to a judicial formation from the European Court of Human Rights (ECtHR). For the second year in a row, it is the EU Member State with the highest proportion of applications per 10,000 inhabitants. Statistics released in the ECtHR Annual Report 2016 show that Hungary’s figure stands at 5.67 per 10,000 inhabitants. Romania, meanwhile, has also seen a sharp increase in applications, from 2.32 in 2015 to 4.14 in 2016. Both Ireland and the United Kingdom had 0.06 applications per 10,000 inhabitants, the lowest proportion in 2016. Denmark and Germany follow closely thereafter, with 0.08 applications allocated to a judicial formation of the ECtHR per 10,000 inhabitants.
The figures for most EU Member States have remained relatively stable, but the increase for a few has led to the EU average rising from 0.75 in 2014 to 1.75 in 2016.
How many cases are awaiting decision by the European Court of Human Rights per EU Member State? (Number of cases pending before ECtHR judicial formations)
After decreasing for a couple of years, the number of cases involving EU Member States that are pending before judicial formations at the ECtHR increased this year. At the end of 2016, 30,986 such cases were pending – compared to 24,417 in 2015. The largest numbers of pending cases relate to
Hungary, Romania and Italy, ranging from 6,000 to almost 9,000 cases, respectively. At the other end of the spectrum are Ireland, Luxembourg and Denmark, with between 13 and 25 cases pending, respectively.
In how many and what types of cases does the European Court of Human Rights find violations in EU Member States? (Number of ECtHR judgments finding a violation)
In 2016, out of the 488 judgments on the 28 EU Member States, the court found rights violations in 360 (74 %) of the cases. This is a slight decrease compared to 2015, when 77 % of judgments found at least one violation of the European Convention on Human Rights.
The length of proceedings – the most commonly judged violation in 2015 – remains significant. However, the court found more violations relating to inhuman and degrading treatment as well as to the right to a fair trial.
How good are EU Member States at implementing judgments by the European Court of Human Rights? (Number of ‘leading’ [indicating structural problems] pending cases with average execution time of more than five years)
Bulgaria and Croatia in 2016 had the highest rates of judgments that take longer than five years to implement; in Bulgaria that number decreased, while in Croatia it increased. The overall trend in EU Member States has been an increase in the number of such cases. Meanwhile, in Greece, Italy and Romania, the number of leading cases not yet implemented decreased in 2016.
What commitments have EU Member States made to United Nations human rights law instruments? (Acceptance of selected UN conventions)
France, Italy and Luxembourg ratified the Third Optional Protocol to the UN Convention on the Rights of the Child – allowing for individual complaints – in 2016. This means 12 EU Member States are now parties. An additional 7 have so far signed it.
With their ratification of the Convention on the Rights of Persons with Disabilities (CRPD) in 2016,
Finland and the Netherlands became the 26th and 27th EU Member States to become parties. Ireland remains a signatory only, though ratification is said to be imminent.
Finland ratified the Optional Protocol to the Convention on the Rights of Persons with Disabilities as the 22nd EU Member State to become party. Three additional states have signed the instrument.
What commitments to international human rights law have EU Member States made in relation to rights of persons with disabilities? (United Nations Convention on the Rights of Persons with Disabilities)
All EU Member States except
Ireland had by the end of 2016 ratified the Convention on the Rights of Persons with Disabilities (CRPD). In 2016, Finland ratified the Optional Protocol to the CRPD, becoming the 22nd EU Member State to do so.
Spain, 21/11/2017 Presenting the Fundamental Rights Report 2017 in Spain
Netherlands, 28/09/2017 Presenting the Fundamental Rights Report 2017 in the Netherlands
Romania, 16/10/2017 Presenting the Fundamental Rights Report 2017 in Romania
Austria, 20/10/2017 Presenting the Fundamental Rights Report 2017 in Austria
Latvia, 23/10/2017 Presenting the Fundamental Rights Report 2017 in Latvia
Belgium, 13/07/2017 Presenting FRA’s Fundamental Rights Report 2017 at EU Council
Italy, 11/07/2017 Promoting fundamental rights in Italy
Belgium, 28/06/2017 Presenting FRA Fundamental Rights Report 2017 at high-level symposium