Credit: Council of Europe
On January 27, 2016 the European Committee of Social Rights (ECSR or the Committee) published its 2015 conclusions regarding 31 States’ implementation of the European Social Charter’s provisions related to the rights of children, families, and migrants. It found 239 instances in which governments’ policies and practices failed to adequately protect these rights. [ECSR Press Release] The Committee also reiterated 38 previous findings of non-conformity with the Charter’s other protections where States have failed to provide sufficient information for the Committee’s evaluation.
Of the 47 Council of Europe Member States subject to the Committee’s jurisdiction, four failed to fulfill their 2015 reporting obligations and eight were excused from reporting because they have accepted the collective complaints procedure. See ECSR, European Social Charter: Social Rights Monitoring 2015. In its review of those eight States’ follow-up concerning 40 collective complaints it had previously decided, the ECSR concluded that the governments had failed to remedy the violations in nearly 90 percent of cases. See ECSR, Press Briefing Elements: Conclusions 2015 (2016); ECSR, Follow-up to Decisions on the Merits of Collective Complaints: Findings 2015 (2016).
The ECSR highlighted the continuing problem of child labor in Europe, violations of refugee and migrant rights, inaccessibility and inadequate quality of social services for families, and unfair treatment of young apprentices as major concerns across the countries. It also identified areas where progress has been made, including: protection of children against ill treatment, legal protection for families, legal frameworks for workers with familial responsibilities, and language training for foreigners. See ECSR, Press Briefing Elements: Conclusions 2015 (2016).
Main Findings
As part of its ongoing review of States parties’ implementation of the European Social Charter, in 2015 the Committee reviewed reports concerning the period 2010 to 2013 with regard to: the right of children to protection (Article 7); right to maternity protection (Article 8); right of the family to social, legal, and economic protection (Article 16); right of children and young people to social, legal, and economic protection (Article 17); rights of migrant workers (Article 19); right of workers with family responsibilities to equal opportunity and treatment (Article 27); and the right to housing (Article 31). The Committee adopted 762 conclusions regarding the status of States’ implementation, which included 277 violations of the Charter.
The Committee analyzed each State’s compliance with the each article and sub-article under review – 762 “situations” in total – and found 31 percent in non-conformity and 57 percent in conformity with those provisions, while it deferred consideration of 12 percent of the situations due to lack of information. See ECSR, Press Briefing Elements: Conclusions 2015 (2016). Albania, Croatia, Iceland, and Luxembourg failed to submit reports; accordingly, the ECSR asked that the Committee of Ministers take note of their failure to fulfill their reporting duties, particularly with regard to Albania and Croatia, who also failed to submit last year. ECSR, Conclusions XX-4 (2015) (January 2016), para. 6; ECSR, Conclusions 2015 (January 2016), para. 6.
Article 7- Right of Children to Protection
The European Social Charter prohibits child labor and dangerous working conditions and guarantees children special protection against physical and moral dangers, such as sexual exploitation.
Although child labor is not a major issue in most European States, the ECSR was concerned by governments’ failure to adequately define the nature and duration of “light work” that children could perform. It further noted that several States, including the United Kingdom, Spain, the Netherlands, Ukraine, and the Czech Republic, failed to comply with fair wage standards. Starting pay for young workers must not fall more than 20 percent below the minimum for adult workers, according to the Committee. ECSR, Conclusions XX-4 (2015) (January 2016); ECSR, Conclusions 2015 (January 2016).
The Committee noted inadequate protections against sexual exploitation of children and other physical and moral dangers in countries including Estonia and Ukraine. See id.
Article 8- Right to Maternity Protection
Article 8 of the European Social Charter guarantees special employment protections to pregnant women. The Committee concluded that compliance was very high in this area, but found some instances of shortcomings with regard to benefits and unlawful dismissal of pregnant women in some countries.
The Committee also clarified that the Charter requires a minimum of six weeks post-natal leave and that compensation must be greater than the poverty level. See id.
Article 16- Right of the Family to Social, Legal, and Economic Protection
Under this provision, the ECSR analyzes the facilities available to children and families, such as housing, family counselling, and associations representing families. It also reviews the legal framework regarding rights and obligations of spouses, domestic violence against women, family benefits, and the equal treatment of foreign nationals and stateless persons with regard to family benefits.
Among the most widespread violations found under Article 16 was unequal access to social benefits for nationals of another State party, who often had to overcome overly-long residence requirements and other bureaucratic hurdles to access assistance. The Committee found 14 of the 31 States analyzed to have engaged in such practices. In addition, the Committee highlighted concerns regarding housing conditions for Roma communities, lack of legal mechanisms to address domestic violence, and lack of protection for those facing eviction constituted violations. See id.
Article 17- Right of Children and Young People to Social, Legal, and Economic Protection
The Committee reviews States’ treatment of juveniles in the justice system, child care, and access to education under this article of the Charter.
The ECSR found the United Kingdom, Turkey, and Czech Republic in violation of the prohibition on corporal punishment of minors, in view of those States’ failure to outlaw such treatment in all instances under domestic law. See id.
Article 19- Rights of Migrant Workers
Under the Charter, migrant workers who are nationals of any State party are entitled to protection and assistance. The Committee found nearly one third of practices with regard to migrant workers to be in non-conformity, leading it to identify this as a key problem area.
Fifty-six percent of the situations examined demonstrated breaches of the migrant workers’ right to equal treatment in employment, trade union membership, and accommodation. Even more striking, the Committee found over a high rate of non-conformity (70 percent) with regard to domestic laws on migrants’ access to family reunification. Accordingly, the ECSR adopted several positions regarding the appropriate application of Article 19. Id.
Article 27- Right of Workers with Family Responsibilities to Equal Opportunity and Treatment
The European Social Charter requires States parties to ensure parental leave, fair compensation, and fair employment practices for workers with children or other dependents.
Turkey and Armenia, alone, were found in violation of this provision. The ECSR criticized Turkey for its lack of mandated compensation or remuneration during parental leave and both countries for their failure to contemplate non-pecuniary damages in their remedies for wrongful dismissal of workers with family responsibilities. Id.
Article 31- Right to Housing
Article 31 requires States to take steps to ensure progress toward the legal, financial, and operational availability of housing. The Committee’s conclusions reflect a low degree of compliance, with over 60 percent of situations in non-conformity with the Charter. One of the most prevalent issues was the failure of States to improve the substandard housing of Roma communities. Legal protection for those subject to eviction was also insufficient in several States. Lastly, the ESCR found waiting periods too long for allocation of social housing.
The Committee adopted a statement of interpretation, stating that eviction from shelters without providing alternative accommodation is prohibited. Id.
Methodology
ECSR receives three types of reports: ordinary reports on a thematic group of Charter provisions, simplified reports every two years on follow-up to collective complaints for States bound by the collective complaints procedure and, reports on conclusions of non-conformity for lack of information adopted by the Committee the preceding year. The 2015 Conclusions relied on 31 ordinary reports regarding the 2010-2013 period. The Committee evaluates the reports, including with reference to civil society submissions, and publishes conclusions on whether each State is in conformity with the Charter.
Following the conclusion of the national reporting procedure, the Council of Europe’s Committee of Ministers adopts resolutions to close the supervision cycle and issues recommendations to the States calling on them to conform their activities to the Charter. Since the Committee of Ministers comprises government representatives from all Council of Europe Member States, this practice constitutes a method of enforcement of the Charter.
Additional Information
For more information on the European Committee of Social Rights, visit IJRC’s Online Resource Hub. For information on related developments in international human rights law, see our previous news posts on economic, social, and cultural rights or the European human rights system.