Human rights of members of the armed forces - Council of Europe recommendation (Text)
Below is the main text of Recommendation CM/Rec(2010)4 of the Committee of Ministers of the Council of Europe, about the human rights of armed forces personnel. Our notes in square brackets are not part of the recommendation. Click here for BAFF introduction to this document. Click here for Council of Europe's Explanatory Memorandum to CM Recommendation on human rights of armed forces personnel.
1. This recommendation concerns the enjoyment of human rights and fundamental freedoms by members of the armed forces in the context of their work and service life.
2. Whilst taking into account the special characteristics of military life, members of the armed forces, whatever their status, shall enjoy the rights guaranteed in the Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter, "the Convention") and the European Social Charter and the European Social Charter (revised) (hereafter, "the Charter"), as well asother relevant human rights instruments, to the extent that states are bound by them.
3. According to Article 15 of the Convention and Article 30 of the European Social Charter,in time of war or other public emergency threatening the life of the nation, states may derogate from certain of their obligations under the Convention and the Charter to the extent strictly required by the exigencies of the situation and provided that such measures are not inconsistent with their other obligations under international law.
4. Derogations under Article 15 of the Convention shall not be permitted in relation to the following rights: the right to life, except in respect of deaths resulting from lawful acts of war, the prohibition of torture and inhuman or degrading treatment or punishment, the prohibition of slavery and servitude, the principle that no punishment can be inflicted without a law and the right not to be tried or punished twice.
5. The following rights and freedoms should be respected and implemented in accordance with the accompanying principles:
[ECHR Article 2 - 'Right to life']
6. Members of the armed forces should not be exposed to situations where their lives would be avoidably put at risk without a clear and legitimate military purpose or in circumstances where the threat to life has been disregarded.
7. There should be an independent and effective inquiry into any suspicious death or alleged violation of the right to life of a member of the armed forces.
8. Member states should take measures to encourage the reporting of acts which are inconsistent with the right to life of members of the armed forces and to protect from retaliation those reporting such acts.
9. Members of the armed forces should never be sentenced to death or executed.
B. No member of the armed forces shall be subjected to torture or to inhuman or degrading treatment or punishment.
[ECHR Article 3 - 'Prohibition of torture']
10. Member states should take measures to protect members of the armed forces from being subjected to torture or inhuman or degrading treatment or punishment. Particular attention should be given to more vulnerable categories such as, for example, conscripts.
11. Where members of the armed forces raise an arguable claim that they have suffered treatment in breach of Article 3 of the Convention, or when the authorities have reasonable grounds to suspect that such treatment has occurred, there should promptly be an independent and effective official investigation.
12. Member states should take measures to encourage the reporting of acts of torture or ill-treatment within the armed forces and to protect from retaliation those reporting such acts.
13. Members of the armed forces, notably when deprived of their liberty should be treated with humanity and with respect for the inherent dignity of all human beings.
[ECHR Article 4 - 'Prohibition of slavery and forced labour']
14. Military service or service exacted instead of compulsory military service should not be considered as constituting forced or compulsory labour. The nature and duration of service exacted instead of compulsory military service should not be punitive, disproportionate or unreasonable compared to that of military service.
15. Members of the armed forces should not be used to perform tasks incompatible with their assignment to the national defence service, with the exception of emergency and civil assistance carried out in accordance with the law.
16. The authorities should not impose on professional members of the armed forces a length of service which would constitute an unreasonable restriction on their right to leave the armed forces and would amount to forced labour.
D. Military discipline should be characterised by fairness and procedural guarantees should be secured.
[ECHR Articles 6 - 'Right to a fair trial' and 7 - 'No punishment without law']
17. Each member state is competent to organise its own system of military discipline and enjoys a certain margin of appreciation in the matter. However, only conduct likely to constitute a threat to military discipline, good order, safety or security may be defined as a disciplinary offence. The severity of any punishment should be proportionate to the offence.
18. Collective punishment should be prohibited.
19. The acts or omissions by members of the armed forces which constitute disciplinary offences, the procedures to be followed at disciplinary hearings, the types and duration of punishment that may be imposed, the authority competent to impose such punishment and any right of appeal should be provided for in law.
20. Any allegation of infringement of the disciplinary rules by a member of the armed forces should be reported promptly to the competent authority, which should investigate it without undue delay.
21. Members of the armed forces charged with disciplinary offences should be informed promptly, in detail, of the nature of the accusations against them. Where Article 6 of the Convention applies, they should have the right to a fair hearing. They should also be given the opportunity to appeal to a higher and independent body.
[ECHR Article 5 - 'Right to liberty and security']
22. No member of the armed forces should be deprived of his or her liberty except in cases provided for under Article 5, paragraph 1, of the Convention, and in accordance with a procedure prescribed by law.
23. For as long as recruitment of persons under the age of 18 into military service continues, these persons should be detained only as a measure of last resort and for the shortest possible appropriate period of time. Furthermore, if detained, they should be held separately from adults, unless this is against their best interests.
24. Members of the armed forces who are arrested or detained should be informed promptly of:
− the reasons for their arrest or detention;
− any charge against them;
− their procedural rights.
25. When members of the armed forces are arrested or detained in relation to a criminal offence, they should be brought promptly before a judge or other official authorised by law to exercise judicial power and be entitled to trial within a reasonable time or to release pending trial.
26. Members of the armed forces who are deprived of their liberty should be entitled to take proceedings by which the lawfulness of the detention should be decided speedily by a court and their release ordered if the detention is not lawful.
27. Any disciplinary penalty or measure which amounts to deprivation of liberty within the meaning of Article 5, paragraph 1, of the Convention should comply with the requirements of this provision.
[ECHR Article 6 - 'Right to a fair trial']
In criminal matters
28. The guarantees of a fair trial should apply to all proceedings that qualify as criminal under the Convention on account of the nature of the offence and the seriousness of the potential penalty as well as its purpose, be they qualified as disciplinary or criminal in national law.
29. In order to safeguard the independence and impartiality of judicial authorities acting in criminal proceedings, there should be a clear separation between the prosecuting authorities and those handing down the court decision.
30. Members of the armed forces charged with a criminal offence should be given full access, to the same extent as in criminal proceedings against civilians, to the criminal case file and have the right to present their defence.
31. Members of the armed forces who are found guilty of an offence should, to the same extent as in criminal proceedings against civilians, be able to appeal to a competent and independent higher authority which ultimately should be an independent and impartial tribunal that fully complies with the requirements of Article 6 of the Convention.
In civil matters
32. Any exclusion of the right to have access to a tribunal for the determination of members of the armed forces' civil rights and obligations should be expressly provided for by law and should also be justified on objective grounds in the public interest.
Procedural safeguards of military courts
33. The organisation and operation of military courts, where they exist, should fully ensure the right of everyone to a competent, independent and impartial tribunal at every stage of legal proceedings.
34. Members of the armed forces should have the right to a public hearing at a competent court. The holding of sessions in camera should be exceptional and be authorised by a specific, well-grounded decision the lawfulness of which is subject to review.