119633

223. Participating States should encourage and proactively facilitate the equal and
meaningful participation of human rights defenders and NGOs, including those
working at the grass-roots levels, by ensuring access to relevant information, sup-
porting the conduct of independent studies and surveys, welcoming public policy
debates and human rights-monitoring activities, including the observation of trials
and other proceedings. As part of their participation in actions aimed at strength-
ening the rule of law, including through established mechanisms for consultation
and dialogue in the development and review of laws and legislative amendments,
human rights defenders should also be allowed unhindered access to courts so
that they may monitor the functioning of the justice system. Furthermore, human
rights defenders should be allowed to carry out monitoring activities in detention
facilities and in other public institutions, and should be appropriately involved in
the establishment and operation of independent oversight bodies.324 Participating
States are also encouraged to seek the assistance of human rights defenders, their
groups and organizations, in building the capacity of relevant state institutions,
training public officials on human rights and sensitizing them to the legitimacy and
importance of the work of human rights defenders (see also the section on Frame-
work for implementation below).

H. Freedom of movement and human rights work within and across borders

224. Article 12 of the ICCPR and Protocol 4 to the ECHR guarantee the right of indi-
viduals to leave any country, including their own, as well as the right to return
to or enter their country. Furthermore, Article 13 of the UDHR affords everybody
the right to freedom of movement and residence within the borders of each state,
while Article 12 of the ICCPR and Protocol 4 to the ECHR apply these rights to

324  In its Concluding Observations on Bulgaria, for example, the UN Committee against Torture (CAT) ex-
pressed concern that “independent monitoring by civil society organizations is not allowed in all cases of deten-
tion and that non-governmental organizations such as the Bulgarian Helsinki Committee require a prosecutor’s
permission for access to pre-trial detainees” and recommended the state party to “ensure independent, effec-
tive and regular monitoring of all places of detention by independent non-governmental bodies.” See “Conclud-
ing Observations of the Committee against Torture: Bulgaria”, CAT/C/BGR/CO/4-5, 14 December 2011, para.
11. Concerning the establishment of the national preventive mechanism (NPM) for the monitoring of places
of detention under the Optional Protocol to the Convention against Torture (OPCAT), the Guidelines of the
Sub-Committee on the Prevention of Torture state that the identification or creation of the NPM should be “an
open, transparent and inclusive process which involves a wide range of stakeholders, including civil society”,
and that this should also apply to the process for the selection and appointment of members of the NPM. See
Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
“Guidelines on national preventive mechanisms”, CAT/OP/12/5, 9 December 2010. The Working Group on Ar-
bitrary Detention, for example, recommended the Government of Georgia to “[e]nsure systematic civil society
participation in the monitoring and investigation of police stations and prison facilities; in this regard, it should
ensure access to civil society organizations (other than those represented in the national preventive mecha-
nism) to all premises and facilities where people are detained.” See “Report of the Working Group on Arbitrary
Detention, Addendum, Mission to Georgia”, UN Doc. A/HRC/19/57/Add. 2, 27 January 2012, para. 98(c). CAT
also recommended monitoring by NGOs to enhance oversight in the context of expulsion operations carried out
by the police. See the UN Committee against Torture, “Concluding Observations: Belgium”, UN Doc. CAT/C/
BEL/CO/3, 3 January 2014, para. 20.

Guidelines on the Protection of Human Rights Defenders 103

individuals lawfully residing in a state.325 Article 22 of the ACHR contains similar
provisions concerning freedom of movement and residence.

225. Article 12 (3) of the ICCPR, Article 2(3) of Protocol 4 to the ECHR and Article
22(3) provide for exceptional circumstances in which some of these rights may
be restricted. Such circumstances are limited to the protection of national secu-
rity and public safety, the maintenance of public order, the prevention of crime,
the protection of public health or morals, or the protection of the rights and free-
doms of others. Any limitation must strictly comply with the principles of legal-
ity, necessity and proportionality in accordance with international human rights
standards. Furthermore, they must be compatible with other fundamental human
rights norms, such as the prohibition of discrimination. Participating States should
review their legislation and practices relating to freedom of movement to ensure
that they are fully consistent with international human rights standards. They
should ensure the meaningful, open and inclusive consultation and participation
of civil society, including human rights defenders, in discussions about legislative
initiatives to bring their laws in line with international standards.

226. Participating States have repeatedly reaffirmed the rights of everyone to freedom
of movement and residence within the borders of each state, and to leave any
country, including their own, and to return to their country. 326 Furthermore, they
have undertaken a number of commitments in relation to the procedures for entry
into their territories by citizens of other participating States. In particular, they
have expressed the intention to “facilitate freer movement and contacts, individ-
ually and collectively, whether privately or officially, among persons, institutions
and organizations of the participating States”. More specifically, they have com-
mitted to gradually simplify and administer flexibly the procedures for exit and
entry; to ease regulations concerning movement of citizens from other participat-
ing States in their territory; and to lower, where necessary, the fees for visas and
official travel documents.327 In addition, they have pledged to ensure that their
policies concerning entry into their territories are fully consistent with the aims
set out in the relevant provisions of the Final Act.328 They have further stated
that “[t]hey will give serious consideration to proposals for concluding agreements
on the issuing of multiple-entry visas and the reciprocal easing of visa processing

325  In its General Comment No. 27 on Article 12 of the ICCPR, the UN Human Rights Committee specifies
that “in principle, citizens of a State are always lawfully within the territory of that State” and “an alien who
entered the State illegally, but whose status has been regularized, must be considered to be lawfully within the
territory”. See UN Human Rights Committee General Comment No. 27 on Freedom of movement (Article 12),
2 November 1999, para. 4. Also, the Committee has emphasized that “[t]he right to move freely relates to the
whole territory of a State, including all parts of federal States” (para. 5).

326  See, for example, Vienna 1989, “Questions Relating to Security in Europe: Principles”, para. 20.

327  See 1975 Helsinki Final Act section “1. Human Contacts” and, more specifically, sub-section “(d) Travel
for Personal or Professional Reasons” therein.

328  Vienna 1989, “Co-operation in Humanitarian and Other Fields”, para. 2.

104 Guidelines on the Protection of Human Rights Defenders

formalities, and consider possibilities for the reciprocal abolition of entry visas on
the basis of agreements between them.”329

227. Participating States have underlined the importance of freer movement and con-
tacts in the OSCE region for the protection and promotion of human rights and
fundamental freedoms. In this context, they have committed themselves to
allow members of human rights monitoring groups and NGOs seeking to defend
human rights “to have unhindered access to and communication with similar bod-
ies within and outside their countries and with international organizations”.330 In
this vein, they have reaffirmed their pledge to simplify visa application procedures
by ensuring that applications are processed as expeditiously as possible and by
reducing fees charged in connection with visa applications to the lowest level pos-
sible.331 Furthermore, they have committed to facilitating visits to their countries
by NGOs from any of the participating States in order to observe human dimension
conditions.332

228. Despite these and other commitments, human rights defenders in some partici-
pating States continue to face severe obstacles to their freedom of movement from
and within their own countries and to other countries. This significantly limits and
often prevents human rights defenders from carrying out their legitimate activities
as it restricts, for example, their physical access to a particular geographical area,
target group, an assembly or human rights conference or training event located
within or outside their own country. As noted by the UN Special Rapporteur on
the situation of human rights defenders, such travel restrictions are contrary to
the spirit of the UN Declaration on Human Rights Defenders and the recognition
that individuals, groups and associations have the right to promote respect for
and foster knowledge of human rights and fundamental freedoms at the national
and international levels.333 In some participating States, human rights defenders
report being subjected to harassment when they return to their own countries
after attending human rights events abroad. Furthermore, the overly restrictive
application of visa regulations by participating States and related bureaucratic
procedures often impede the participation of human rights defenders in activities
abroad, including in human rights monitoring or fact-finding missions, interna-
tional consultations, networking and capacity-building events.

229. Right to leave and return to one’s country: Participating States should ensure
that human rights defenders fully enjoy the right to leave any country, including
their own. Undue restrictions on the exercise of this right, such as unreasonable

329  Ibid. para. 22.

330  Copenhagen 1990, para. 10(4).

331  Ibid. paras. 19, 19(1) and 19(2).

332  Moscow 1991, para. 43.2.

333  The UN Special Rapporteur on the situation of human rights defenders, “Commentary to the Declaration
on the Right and Responsibility of Individuals, Groups and Organs of Society, to Promote and Protect Univer-
sally Recognized Human Rights and Fundamental Freedoms”, July 2011, p. 53.

Guidelines on the Protection of Human Rights Defenders 105

































263. In spite of OSCE commitments and international obligations, in a number of OSCE
participating States, individuals and groups are not able to submit freely and with-
out fear of reprisals statements, reports or other monitoring and research mate-
rials, complaints and other communications to relevant international bodies. In
addition, their ability to participate freely in debates and to meet and otherwise
co-operate with these bodies, whether in their own country or abroad, is some-
times significantly curtailed, including as a result of threats, warnings, travel
bans or smear campaigns which they are subject to for engaging with them. NGOs
providing information to international mechanisms have reported that they were
“monitored” by law enforcement authorities, or that their offices and private
homes of staff were searched and broken into. Some have reportedly had their
passports confiscated or were prevented from boarding planes to travel to inter-
national meetings, while others have faced retaliation upon their return. In some
countries, the authorities apply legislation that prohibits the propagation of “false
information” deemed damaging to the country’s reputation or similar laws to crim-
inalize human rights defenders for activities related to human rights monitoring
and for reporting the results to international bodies. The UN Committee against
Torture, for example, has expressed concern about overbroad criminal provisions
concerning treason, which can be interpreted as prohibiting the sharing of infor-
mation on human rights issues with the Committee or with other human rights
organs.400 Reprisals are often linked to multiple forms of human rights violations,
including undue restrictions on freedom of movement and violations of the right to
liberty and security, freedom of association and others.

264. The annual reports of the UN Secretary General on Cooperation with the United
Nations, its representatives and mechanisms in the field of human rights have
illustrated that reprisals against persons co-operating with the United Nations are
a problem of growing concern, including in a number of OSCE participating States.
In the context of their monitoring of reprisals, the UN has also reported receiv-
ing allegations of acts of intimidation and reprisal as a result of co-operation with

400  See “Concluding Observations: Russian Federation”, UN Doc. CAT/C/RUS/CO/5, 11 December 2012,
para. 12. Thus, the Committee has called on the state party to “[e]nsure that no individual or group will be sub-
jected to prosecution for communicating with, or for providing information to, the Committee against Torture,
the Sub-Committee on Prevention of Torture or the United Nations Voluntary Fund for Victims of Torture or
to other United Nations human rights organs in performing their respective mandates”; see ibid. para. 12(b).
Furthermore, it also expressed specific concern about legislation requiring organizations that receive finan-
cial support from foreign sources to register and identify themselves publicly as “foreign agents”; see ibid.
para. 12. Subsequently, the Committee received allegations that charges were brought against two organiza-
tions and its leadership under these provisions, in relation to information submitted by these two organiza-
tions to the Committee. See “Letters sent by the Chairperson and the Rapporteur on reprisals to the Russian
Federation on 17 and 28 May 2013”, http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/TBSearch.aspx-
?Lang=en&TreatyID=1&DocTypeID=130. In its Concluding Observations on Tajikistan, the Committee against
Torture also expressed serious concern about reports of harassment and intimidation of human rights defend-
ers following their meetings with the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment during his visit to Tajikistan in May 2012, and about the dissolution on administra-
tive grounds of a human rights organization that had engaged with the Special Rapporteur during his visit. See
Committee against Torture, “Concluding Observations: Tajikistan”, UN Doc. CAT/C/TJK/CO/2, 20 November,
2012, para. 15.

122 Guidelines on the Protection of Human Rights Defenders

regional organizations.401 The Human Rights Council has expressed concern at
“the continued reports of intimidation and reprisals against individuals and groups
who seek to co-operate or have co-operated with the United Nations, its repre-
sentatives and mechanisms in the field of human rights, and at the seriousness
of reported reprisals, including violations of the right of the victim to life, liberty
and security of person, and violations of obligations under international law pro-
hibiting torture and cruel, inhuman or degrading treatment.”402 In this regard, the
UN General Assembly and the Human Rights Council have urged states to refrain
from, and ensure adequate protection from, any acts of intimidation or reprisals.
Furthermore, they have called on states to fulfil their duty to end impunity for
any such acts by bringing the perpetrators to justice and by providing an effective
remedy for the victims, and to avoid legislation that has the effect of undermining
the right to unhindered access to and communication with international institu-
tions.403 Echoing PACE, which has expressed serious concern about illicit pressure
on lawyers who defend applicants before the ECtHR and other acts of intimidation,
the Council of Europe Committee of Ministers has called on states to refrain from
putting pressure on applicants, their lawyers and members of their family with the
aim of deterring applications to the Court, so as to effectively protect them from
such pressure and identify and appropriately investigate all cases of alleged inter-
ference with the right of individual application to the Court.404

265. When national mechanisms for human rights protection are ineffective, interna-
tional systems may represent the only or last resort for legal redress or for the
promotion and protection of human rights. Information submitted to international
bodies, in particular human rights mechanisms, is sometimes the only way for
someone from outside of a country to learn about the human rights situation in
that country. Under these circumstances, states often perceive the transfer of
such information as presenting the country, and its government, in a bad light, as

401  See A/HRC/24/29, 31 July 2013, paras. 49 and para. 14 (concerning allegations of reprisals for
c­ ommunicating with regional organizations). See also the previous reports of the UN Secretary General on
C­ ooperation with the United Nations, its representatives and mechanisms in the field of human rights: UN Doc.
A/HRC/21/18, 13 August 20102; UN Doc. A/HRC/18/19, 21 July 2011; and UN Doc. A/HRC/14/19, 7 May 2010.

402  A/HRC/RES/24/24, Preamble.

403  See UNGA Resolution A/RES/68/181, para. 17; and Human Rights Council Resolution A/HRC/RES/22/6
para. 14. See also A/HRC/RES/24/24, which encourages states to consider setting up a national focal point to
address acts of intimidation and reprisals against individuals and groups communicating with the United Na-
tions, its representatives and mechanisms in the field, see para. 8.

404  See Council of Europe Committee of Ministers, “Resolution CM/Res(2010)25 on member states’ duty to
respect and protect the right of individual application to the European Court of Human Rights”, 10 November
2010, paras. 1-2 and 4. The Parliamentary Assembly of the Council of Europe (PACE) made almost identical
recommendations in its 2007 Resolution (see PACE Resolution 1571 (2007), “Council of Europe member states’
duty to co-operate with the European Court of Human Rights”, paras. 17.1.-17.3). In the Resolution, the As-
sembly expressed its grave concerns “about the fact that a number of cases involving the alleged murder, dis-
appearance, beating or threatening of applicants initiating cases before the Court have still not been fully and
effectively investigated by the competent authorities”, and noted that illicit methods of applying pressure on
lawyers who defended applicants before the Court “included trumped-up criminal charges, discriminatory tax
inspections and threats of prosecution for ‘abuse of office’. Similar pressure has been brought to bear on NGOs
who assist applicants in preparing their cases.” Such acts of intimidation have prevented alleged victims of vio-
lations from bringing their applications to the Court, or led them to withdraw their applications (see paras. 5-7).

Guidelines on the Protection of Human Rights Defenders 123

such information may disclose the authorities’ responsibility for human rights vio-
lations, as well as corruption. However, OSCE participating States have commit-
ted to respect human rights and the right to defend human rights and fundamental
freedoms.405 They have also confirmed the important contribution of individuals,
groups and associations in assisting states to ensure compliance with their OSCE
human dimension commitments.406 They should therefore also respect and pro-
tect the right of human rights defenders to share information with international
bodies.

266. In order to strengthen the protection of human rights in their countries, communi-
cation with international bodies, in particular human rights mechanisms, should
be considered and recognized as a routine activity, and an important one. Partici-
pating States should therefore, take proactive steps to facilitate the exercise of the
right of human rights defenders to communicate with such bodies. For example,
as routinely recommended by UN Treaty Bodies, states should translate relevant
treaties, concluding observations and recommendations from the review of state
reports, case-law and other relevant documents into local languages, and should
disseminate these widely to raise awareness about international human rights
mechanisms and to encourage their use.407 Similarly, states should disseminate
recommendations made by other human rights mechanisms, as well as standards
and jurisprudence from regional human rights mechanisms and other institutions.
They should also publicise information about how to submit complaints to interna-
tional and regional human rights mechanisms and institutions, including regional
human rights courts, and otherwise facilitate the use of these mechanisms when
required.

267. UN Treaty Bodies also routinely request that states actively consult with civil soci-
ety when preparing periodic reports on their implementation of the relevant human

405  Vienna 1989, para. 13.5; UN Declaration on Human Rights Defenders, Article 1.

406  See, for example, Moscow 1991.

407  See, for example, the following recommendation of the Human Rights Committee, similar forms of
which can be found in all Concluding Observations made following the review of a state report: “[t]he State
party should widely disseminate the Covenant, the two Optional Protocols to the Covenant, the text of the sec-
ond periodic report, the written responses that it has provided in response to the list of issues drawn up by the
Committee and the present concluding observations so as to increase awareness among the judicial, legislative
and administrative authorities, civil society and non-governmental organizations operating in the country, as
well as the general public. The Committee also suggests that the report and the concluding observations be
translated into the other official language of the State party.” See Human Rights Committee, “Concluding Ob-
servations: Bosnia and Herzegovina,” UN Doc. CCPR/C/BIH/CO/2, 13 November 2012, para. 22. Similarly, the
Committee on the Rights of the Child has stated that “[t]he Committee further recommends that the combined
second to fourth periodic reports and written replies by the State party and the related recommendations (con-
cluding observations) be made widely available in the languages of the country, including (but not exclusive-
ly) through the Internet, to the public at large, civil society organizations, media, youth groups, professional
groups and children, in order to generate debate and awareness of the Convention and the Optional Protocols
thereto and of their implementation and monitoring.” See Committee on the Rights of the Child, “Concluding
Observations: Bosnia and Herzegovina,” UN Doc. CRC/C/BIH/CO/2-4, 29 November 2012, para. 81.

124 Guidelines on the Protection of Human Rights Defenders