Commissioner for Human Rights

The support for the European Social Charter (Revised) has broadened in recent months. Hungary and the Slovak Republic have ratified this instrument and the Russian Federation and Serbia have initiated a process for taking such a decision within the near future. A clear majority of the Council of Europe member states have now bound themselves to respect the Charter in its original or revised version.¹

This is progress. However, the key point about human rights norms is their enforcement in real life. To ensure realization of the Charter a monitoring body, the European Committee of Social Rights (ECSR), was set up to review reports from states parties about steps taken for implementation. The conclusions of the Committee are submitted for further action to a Governmental Committee.

One further element has been added to this mechanism. The experience in the International Labour Organization has demonstrated the value of a channel for receiving submissions from social partners about concrete violations. Drawing from this experience, a system of collective complaints was established through a Protocol to the European Social Charter.

This mechanism has existed now for more than ten years but only 14 states have decided to be party to it.² This is a pity because the collective complaints procedure contributes effectively to the enforcement of the social rights guaranteed by the Charter.

Previously, the European Committee of Social Rights had been limited to developing its case law under the reporting procedure by examining the reports submitted by member states and deciding on conformity with the Charter. With the complaints procedure the verification process has been given a new dynamic. It allows the Committee, in its own words, “to make a legal assessment of the situation of a state in the light of the information supplied by the complaint and the adversarial procedure to which it gives rise”.³

Collective complaints may be submitted by international organizations of employers and trade unions which participate in the work of the Governmental Committee⁴ , other international non-governmental organizations enjoying participatory status with the Council of Europe as well as national organizations of employers and trade unions of the Contracting Parties concerned. In addition, each state may, in a special declaration authorize national non-governmental organizations to lodge complaints against it. Only Finland has so far done so.

The complaints are examined by the ECSR and declared admissible if the formal requirements are met. Then a written procedure is set in motion, with an exchange between the parties. Other states parties, as well as the employers organizations, and the trade unions may also submit observations.

The ECSR may decide to hold a public hearing. Subsequently, it takes a decision on the merits of the complaint, which it forwards to the parties concerned and to the Committee of Ministers in a report, which is made public within four months. The Committee of Ministers adopts a resolution. If appropriate, it may recommend that the state concerned takes specific measures to bring the situation into line with the Charter.

Despite the low number of states parties to the procedure and its quasi-judicial character, it has clearly exceeded expectations. The Committee has dealt with key issues of vulnerability and discrimination:

• insufficient protection for autistic children;
• discrimination both in law and in practice against Roma in the field of housing;
• insufficient medical assistance to children of illegal immigrants;
• corporal punishment of children;
• inadequate state prevention of the impact for the environment in the main areas where lignite was mined and lack of appropriate strategy in order to prevent and respond to the health hazards for the population;
• unsatisfactory implementation of the legislation on the prevention of evictions and the lack of measures to provide re-housing solutions for evicted families;
• discrimination in the education of children with intellectual disabilities;
   
• environmental hazards and lack of adequate health care for Roma.⁵

In its role as authentic interpreter of the Charter, the ECSR has demonstrated that it does not operate in vacuum. It has built on the Council of Europe’s norms with particular reference to the European Convention on Human Rights and when relevant to other important international norms like the UN Convention on the Rights of the Child. Its case law is now also a reference for my work as Commissioner. The European Court of Human Rights recently explained how the ECSR case law can be a source of interpretation. ⁶

The procedure of collective complaints has a preventive dimension. The complaints lodged before the ECSR do not deal with individual cases but with general shortcomings in law and practice. Assessments made by the Committee can assist states in taking required measures to remedy a situation and thus preempt individual applications before the Strasbourg Court. The fact that the Committee can refer to an issue dealt with in its complaints procedure when submitting its regular reports adds to this preventive aspect.

Indeed, several states have redressed a situation brought to light by way of this procedure. In November 2006, I welcomed the adoption by the Greek Parliament of a law on domestic violence, under which corporal punishment of children has become prohibited. The law’s adoption had been prompted by a decision of the ECSR on a collective complaint against Greece.

In response to a complaint concerning housing rights, France undertook to take into account the decision of the European Committee of Social Rights when implementing the Act on the enforceable right to housing.

In the case concerning the right to education of children with autism, the French Government declared that it would bring the situation into conformity with the Revised Charter and that measures were being taken to this effect.

The collective complaints procedure has several advantages. It is relatively fast and non-bureaucratic. Its admissibility criteria are more flexible than those before the Strasbourg Court. A complaint may be declared admissible even if domestic remedies are not exhausted and even if a similar case is pending before national or international bodies.

I sincerely hope that more governments will take steps to open this channel for complaints relating to their own countries. I hope that trade unions, employers groups and other civil society organizations will consider using this mechanism more systematically in order to protect social rights.

Thomas Hammarberg

Notes:

1. Of the 40 States which have now ratified the European Social Charter, 27 are bound by the Revised Charter and 13 by the 1961 Charter.

2. These are: Belgium, Bulgaria, Croatia, Cyprus, Finland, France, Greece, Ireland, Italy, Netherlands, Norway, Portugal, Slovenia, and Sweden. 

3. Decision as to the admissibility: ICJ v. Portugal (Collective complaint No. 1/1998), 10 March 1999, §10. 

4. European Trade Union Confederation (ETUC), BUSINESSEUROPE (formerly UNICE) and International Organisation of Employers (IOE) 

5. The full list of the 57 collective complaints lodged so far can be consulted at: https://www.coe.int/t/dghl/monitoring/socialcharter/Complaints/Complaints_en.asp. 

6. Demir and Baykara v. Turkey [GC], 12 November 2008.