IACL Project –Social Rights, Library of Social Rights

Country/Court: European Union/ European Court of Human Rights.

Year of Judgment/App No: 2006/ 22860/02.

Related social rights: civil rights / right to a fair trial

Constitutional provisions: No.

Subject: In September 1997 the applicants’ two sons/grandsons, born in 1987 and 1994, were placed by court order in the “Il Forteto” children’s home, where – as the national court was aware – two of the principal leaders and co-founders had been convicted of sexual abuse of three handicapped people in their care. Prior to his placement in the home, the eldest boy had been a victim of sexual abuse by a paedophile social worker.

Summary of the Decision:

I. Facts of the case

The first applicant, Dolorata Scozzari, also acts on behalf of her children, G., aged thirteen and M., aged six. The second applicant, Carmela Giunta, is the first applicant's mother. In view of the dramatic situation in the first applicant's home, a situation that had been largely brought about by the violence of the first applicant's husband towards both her and the children and the fact that the elder child had been subjected to paedophile abuse by a "social worker", the Florence Youth Court suspended the first applicant's parental rights and ordered the children's placement with the Il Forteto community. Two of the main leaders of that community had been convicted in 1985 of the ill-treatment of three handicapped people who had stayed there. The case-file showed that the two men continue to hold positions of responsibility within the community and are actively involved in the proceedings concerning the first applicant's children and in the arrangements for looking after them. On 9 September 1997 the Youth Court ordered that the first applicant should have contact with the younger child only, but she was prevented from doing so in practice. Subsequently, it ordered that she should receive counselling in preparation for contact with the younger child. Visits that had already been arranged were, however, suspended in July 1998. Subsequently, following the Youth Court's decision of 22 December 1998 to allow contact with both children, the first applicant was allowed to visit them for the first time on 29 April 1999. A second visit took place on 9 September 1999, but social services decided to suspend all visits thereafter. The first applicant, who purported also to be acting on behalf of her children, complained of infringements of article 8 ECHR in that her parental rights had been suspended, her children had been taken into care, the authorities had delayed before finally allowing her to see the children, too few contact visits had been organised and the authorities had placed the children at Il Forteto. The second applicant also alleged a violation of article 8, complaining that the authorities had discounted the possibility of her being given the care of her grandsons and delayed organising contact with them.

The European Court of Human Rights found that the two leaders played a “very active role” in the care of the two children and that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, concerning, among other things, the uninterrupted placement of the boys in “Il Forteto”.

II. The basic considerations of the case

Strip searches, including rectal examinations, carried out for security reasons have not been found to be incompatible with Article 8 although such measures will normally constitute an interference with respect for private life. However, interferences of this kind will usually be justified bearing in mind the reasonable and ordinary requirements of imprisonment in which wider measures of interference might be justified than for persons at liberty in pursuance of the aims of preventing crime and disorder. In McFeeley v. the United Kingdom, for example, frequent strip searches were found to be required by the exceptional security requirements of the Maze prison in Northern Ireland, where experience showed dangerous objects had been smuggled in. The Commission found that while the circumstances were personally humiliating they were not deliberately degrading particularly given the lack of physical contact and the presence of a third officer to avoid abuse.

Furthermore, the extent to which private sexual conduct can be regulated has been examined recently by the Court. The applicants in Laskey, Jaggard & Brown v. the United Kingdom were prosecuted for engaging in group sado-masochistic activities, which they argued violated their right to private life under Article 8. Although the Court questioned whether such actions could be considered as an aspect of private life under that provision, it was not necessary for it to decide the matter as, in any event, the prosecution of acts such as assault and wounding, notwithstanding the consent of the adult victims, was justified for the aim of the protection of health, having regard to the extreme nature of the acts concerned.

However, in ADT v. the United Kingdom the Court considered whether the prosecution of the applicant for recording his sexual activities on video tape constituted an unjustifiable interference with the right to respect for his private life. While the Court agreed with the Government that, at some point, sexual activities can be carried out in such a manner that state interference can be justified, it went on to find that this was not such a case. In particular, it was relevant that the applicant was involved in sexual activities with a restricted number of friends in circumstances in which it was most unlikely that others would become aware of what was going on. Notwithstanding that the activities were recorded on video tape, the Court found it relevant that the applicant was prosecuted for the activities themselves and not for the recording or for any risk of it entering the public domain. The activities were thus genuinely “private”, which means that a narrow margin of appreciation applies as in other cases concerning intimate aspects of private life. As a result of these factors, the Court concluded that both maintaining the legislation in force and prosecuting and convicting applicant were disproportionate to the aim of protecting morals and the rights and freedoms of others under Article 8 para. 2.

Adjudication method: Reference to domestic law of Italy in conjunction with the reference to international law.

Reference to other constitutional courts: No.

Reference to International Law: Articles 3, 6, 36 and 46 of European Convention of Human Rights.

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication method. It referred to former jurisprudence, i.e. B. v. the United Kingdom, Eriksson v. Sweden, Hokkanen v. Finland, Johansen v. Norway, etc.

Bibliography: Kilkelly U. (2003), The right to respect for private and family life - A guide to the implementation of Article 8 of the European Convention on Human Rights, Human rights handbooks, No. 1, Council of Europe, Available at: http://echr.coe.int/NR/rdonlyres/77A6BD48-CD95-4CFF-BAB4-ECB974C5BD15/0/DG2ENHRHAND012003.pdf [accessed August 2003].

Key words: right to respect for private and family life, respect for family life, Italy, interference, necessary in a democratic society, protection of health, protection of morals, protection of the rights and freedoms of others, prohibition of torture, inhuman treatment, inhuman punishment.

Commentator/contact details: Despina Tziola, Aristotle University of Thessaloniki, Greece, deppytziola@hotmail.com.

IACL Project –Social Rights, Library of Social Rights

Country/Court: European Union/ European Court of Human Rights.

Year of Judgment/App No: 2006/ 22860/02.

Related social rights: civil rights / right to a fair trial

Constitutional provisions: Article 45 § 1 and Article 175 § 1 of Polish Constitution

Subject: The assessment of eligibility for an ex gratia award from a fund set up for victims of Nazi prosecution was a matter that engaged Article 6 even though it did not constitute a "civil right" in domestic law.

Summary of the Decision:

I. Facts of the case

The applicant had been subjected to forced labour during the Second World War on the territory of occupied Poland. Between February 1941 and January 1945 he was forced to work on German farms and defences, most of which time he was under the age of 16. In 1993 he applied to the Polish-German Reconciliation Foundation for compensation from funds contributed by the Government of the Federal Republic of Germany under an agreement with Poland of 16 October 1991. He was paid a certain amount for the period of forced labour, but for the months after his sixteenth birthday the compensation was reduced according to the eligibility rules which required that claimants should establish that they had been "deported" by the German authorities during the time in question. The applicant appealed against this deportation criterion, arguing that the Foundation had originally accepted that the deportation requirement was also satisfied by persons who were relocated outside their province of residence to a province with different administrative status and that its later insistence on the letter of the law introducing the deportation requirement was unfair and arbitrary. His appeals were unsuccessful both before the Appeal Verification Commission and the Supreme Administrative Court. The domestic courts found that the Foundation was not a public authority and that, as entitlement to receive a benefit from the Foundation did not fall within the scope of civil law, claims concerning entitlement could not be raised before a civil court.

The European Court of Human Rights found that although there is no general obligation under the Convention for states to compensate wrongs inflicted in the past under the general cover of state authority, once such a scheme was established, any criteria for compensation would fall within the Court's jurisdiction if they were "manifestly arbitrary or blatantly inconsistent with the fundamental principles of the Convention". Once a compensation scheme is put in place by a government, or with a government's consent, and regardless of the nature of the respective benefits, issues of compliance with Article 6(1) and Article 1 Protocol 1 of the Convention may well arise. The Court concluded that the absolute exclusion of judicial review of the decisions issued by the Foundation under the compensation scheme impaired the very essence of the applicant's right of access to court and he was awarded non-pecuniary damages of 5,000 Euros.

II. The basic considerations of the case

When Strasbourg comes to consider the doctrine of state immunity and its compatibility with the Convention, it will have to square it with the broad reach it has endowed on Article 6 in Wos and other similar cases on access to court. Strasbourg rejected all the government's arguments advanced to justified the exclusion of review or appeal in the context of compensation for Nazi persecution; such limitations may be considered legitimate, but in this case they were found to impact too severely on victims in the applicant's position to be considered proportionate. Applicants should not be left in a sort of "legal lacuna" when both the ordinary and the administrative courts have established that they have no jurisdiction to hear their claims. This would be tantamount to the state removing "from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons". The Wós ruling also has some interesting implications for similar government-backed funds that have been set up in the UK to assist victims of disasters that cannot be litigated in the ordinary way through the civil courts. There are in place for example a number of funds provided by the government for various trusts on behalf of haemophiliacs and non-haemophiliac victims of the contaminated blood disaster in the seventies and eighties. The government has always been keen to play down the compensatory character of these ex gratia payment schemes lest the eligibility for payment acquires legal backing. But the Wos case demonstrates that the eligibility criteria or any other considerations taken into account as a preliminary to granting payments may not be thus ringfenced from challenge in the courts; they all fall within the purview of Article 6. Where an issue related to assessment of the facts arises, the Court has indicated the applicability of Article 6(1) would not be in doubt provided there are reasonable grounds to believe that the fund's assessment of those facts is "questionable". There will be no point in resisting a challenge based on the implied access to court right under Article 6 simply by denying the similarities between an entitlement to welfare allowance and an entitlement to receive a payment from an ex-gratia fund. The Polish government's contention in the Wos case that the compensation payments granted by the Foundation were "incidental in nature" and had "symbolic rather than real economic value" did not wash with the Court. The assistance may be "one off", and "humanitarian", but the basis upon which it is provided is as open to forensic challenge as any statutory backed financial entitlement. Put another way, the concept of "civil rights and obligations" under Article 6 is an autonomous one and therefore the Strasbourg Court has signalled that no government will be able to persuade it that the Convention is inapplicable because the compensation claims are not based on classic concepts of civil-law liability but are instead of a humanitarian nature. If he or she is unfairly excluded, the claimant – or the victim claiming an award, to use more neutral wording – has suffered an interference with their means of subsistence and therefore is claiming "an individual, economic right flowing from specific rules laid down" in the relevant fund's originating statute.

Adjudication method: Reference to domestic law of Poland in conjunction with the reference to international law.

Reference to other constitutional courts: No.

Reference to International Law: Articles 6, 35 and 41 of European Convention of Human Rights.

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication method. It referred to former jurisprudence, i.e. A. v. the United Kingdom, Airey v. Ireland, Aït-Mouhoub v. France, etc.

Bibliography: Rosalind English (2006), Wos v Poland, Available at: http://www.1cor.com/1315/?form_1155.replyids=1012, [accessed 19/06/2006].

Key words: admissibility criteria, exhaustion of domestic remedies, ratione materiae, ratione personae, right to a fair trial, access to court, civil rights and obligations, determination, dispute, just satisfaction.

Commentator/contact details: Despina Tziola, Aristotle University of Thessaloniki, Greece, deppytziola@hotmail.com.

IACL Project –Social Rights, Library of Social Rights

Country/Court: European Union/ European Committee of Social Rights.

Year of Judgment/Complaint No: 2012/ 87/2012.

Related social rights: The right to protection of health

Constitutional provisions: No.

Subject: The complainant organisation alleges that the difficulties experienced by women in the access to termination of pregnancy provided by the legislation amount to a breach of the right to health as guaranteed by the Charter.

Summary of the Decision:

I. Facts of the case

It indicates that Law no. 194 of 22 May 1978 on “Norms on the social protection of motherhood and the voluntary termination of pregnancy” establishes a balance between rights pertaining to women (and thus primarily their right to life and health, as well as self-determination in choices concerning reproduction and the termination of pregnancy) and those pertaining to medical personnel (and thus the right to raise conscientious objection in the means and times provided for by Article 9 of the said Law) providing that neither is sacrificed, except in cases of imminent danger to the life of the woman. However, the complainant organisation argues that in practice the high number of doctors being conscientious objectors entails that the above-mentioned legislative provision cannot guarantee the effective exercise of women’s right to have access to procedures for the termination of pregnancy.

The European Committee of Social Rights declared the complaint admissible and in view of the seriousness of the allegations, decided to give precedence to this complaint and thus sets time limits for the proceedings which will not be extended.

II. The basic considerations of the case

1. a) Health is a fundamental human right indispensable for the exercise of other human rights. Every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity. The realisation of the right to health may be pursued through numerous, complementary approaches, such as the formulation of health policies, the implementation of health programmes developed by the World Health Organization (WHO), or the adoption of specific legal instruments. Moreover, the right to health includes certain components which are legally enforceable.

The right to health is closely related to and dependent upon the realization of other human rights, as contained in the International Bill of Rights, including the rights to food, housing, work, education, human dignity, life, non-discrimination, equality, the prohibition of torture, privacy, access to information, and the freedoms of association, assembly and movement. These and other rights and freedoms address integral components of the right to health.

Article 11 of the European Social Charter and the Revised European Social Charter guarantees the right to protection of health. This provision complements Articles 2 and 3 of the European Convention on Human Rights, as interpreted in the case-law of the European Court of Human Rights, by imposing a range of positive obligations designed to secure the effective exercise of that right.

Article 11 provides for a series of rights to enable persons to enjoy the highest possible standard of health attainable. These rights consist on the one hand in measures to promote health and on the other hand in the provision of health care in case of sickness. With its broad scope it would appear evident that Article 11 encompasses sexual and reproductive health rights, however in its case law to date the European Committee of Social Rights has addressed only certain topics such as maternal mortality, counselling and screening during pregnancy and in particular sexual and reproductive health education and awareness-raising.

As regards maternal mortality it is one of the indicators that the Committee systematically examines under Article 11§1 in evaluating how well a particular country’s overall health system is operating. The Committee considers that maternal mortality is an avoidable risk that can be controlled by human action and it follows that States Parties should take every step to reduce the maternal mortality rate as close to zero as possible. The Committee also considers that under Article 11§2 counselling and systematic screening should be free for pregnant women.

1.b) Moreover, the European Social Charter and the Revised Charter, provides protection from discrimination with article E. Article E draws its inspiration from Article 14 of the European Convention on Human Rights. It takes up the principle of non-discrimination which was set forth in the Preamble of the Social Charter of 1961 and incorporates it into the main body of the Revised Charter. Article E prohibits all forms of discrimination. It confirms the right to non - discrimination which is established implicitly or explicitly by a large number of Charter provisions. The insertion of Article E into a separate Article in the Revised Charter indicates the heightened importance the drafters paid to the principle of non-discrimination with respect to the achievement of the fundamental rights contained therein. Its function is to help secure the equal effective enjoyment of all the rights concerned regardless of the specific characteristics of certain persons or groups of persons. It does not constitute an autonomous right which could in itself provide independent grounds for a complaint. The prohibited grounds for discrimination in Article E are a combination of those listed in Article 14 of the European Convention on Human Rights and those in the Preamble to the 1961 Charter. The expression “or other status” means that this is not an exhaustive list. Moreover, the Committee has expressly stated that disability is a prohibited ground for discrimination although it is not listed as such in the article

Adjudication method: Reference to domestic law of Italy in conjunction with the reference to international law.

Reference to other constitutional courts: No.

Reference to International Law: Articles 11 and E of European Social Charter.

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication method. It referred to the domestic law (in this case the law of Italy) in conjunction with the articles of European Social Charter.

Bibliography: “Sexual and reproductive health topics in the European Social Charter”. Available at:

http://www2.ohchr.org/english/bodies/cescr/docs/discussion/EuropeanCommitteeSocialRights.pdf

OSCE Human Dimension Implementation Meeting 2012, “Non-discrimination as guaranteed by the European Social Charter”, Available at: http://www.osce.org/odihr/94682 [accessed 03/10/2012].

Key words: Non –discrimination, the right to protection of health, health, European Social Charter, European Committee of Social Rights, Italy

Commentator/contact details: Despina Tziola, Aristotle University of Thessaloniki, Greece, deppytziola@hotmail.com.

IACL Project –Social Rights, Library of Social Rights

Country/Court: European Union/ European Court of Human Rights.

Year of Judgment/ Application No: 2011/ No 18968/07

Related social rights: Right to respect for private and family life / Prohibition of inhuman or degrading treatment.

Constitutional provisions: No.

Subject: The applicant’s forced sterilization was in violation of Article 3 (prohibition of inhuman and degrading treatment) and Article 8 (respect for private and family life). The Court condemns the Slovakian government in strong terms.

Summary of the Decision:

I. Facts of the case

V.C. was forcibly sterilized in the state hospital, Prešov Hospital, in Eastern Slovakia on 23 August 2000, during the delivery of her second child. As attested by her medical records, shortly before this delivery was terminated by a caesarean section, while she was in labour and had contractions every three minutes, the Hospital staff pressured her to sign one sentence in her medical file as “a request for sterilization”. She was told that unless signed that sentence, she or her baby would have died. V.C. did not understand what sterilization meant but she signed the medical record nonetheless, as she was in fear for her life. She was sterilized during the surgery. Later, she found out that the information she was given was incorrect and that the sterilization was not necessary for saving her life since it is merely a form of contraception. V.C. was greatly traumatized by the forced sterilization, her husband divorced her, she was ostracized by the community, experienced a hysterical pregnancy and had to undergo psychiatric counselling. Since 2004, V.C. sued for damages from the Prešov Hospital at the Slovakian courts, including the Constitutional Court of Slovakia. All her petitions were rejected. In 2007, she brought a complaint against Slovakia to the European Court.

The European Court held a hearing in the case on 22 March 2011. Four years later, on 8 November 2011, the European Court found the violation of her rights and declared a violation of her rights to freedom from inhuman and degrading treatment (under Article 3 of the European Convention on Human Rights) and the right to private and family life (under Article 8 of the Convention). The European Court rejected the claims of the Slovak Government that sterilization was “medically necessary” since sterilization is not a lifer saving surgery and V.C.’s informed consent was needed. In the Court’s view, the approach of the medical personnel of the Prešov Hospital was not compatible with the principles of respect for human dignity and human freedom embodied in the Convention as it did not permit V.C. to take a decision of her own free will, after consideration of all the relevant issues. The Slovak Government was ordered to pay the compensations of 31,000 EUR as well as the reimbursement of her legal costs.

II. The basic considerations of the case

1.a) The Court strongly expresses its disapproval of the way V.C. was treated by the hospital staff: ‘The way in which the hospital staff acted was paternalistic, since, in practice, the applicant was not offered any option but to agree to the procedure which the doctors considered appropriate in view of her situation. However, in similar situations informed consent was required, promoting autonomy of moral choice for patients.’ And it gets even better because the Court goes on to explain what meaningful consent in the area of reproductive rights requires. The Court thoroughly grounds the principle of “informed consent” in both international conventions and documents – notably the Convention on Human Rights and Biomedicine, and CEDAW’s General Recommendation 24 – and general principles such as respect for human dignity, human freedom, and autonomy. According to the Court, informed consent includes information about one’s health status; information about the proposed procedure and the alternatives to it; and time for reflection. Also, the Court notes: ‘the applicant’s informed consent could not be dispensed with on the basis of an assumption on the part of the hospital staff that she would act in an irresponsible manner with regard to her health in the future’.

1.b) Furthermore, the Court recognizes the harm that has been done to V.C. The Court notes that “the sterilisation procedure grossly interfered with the applicant’s physical integrity as she was thereby deprived of her reproductive function”, and goes on to note that “the sterilisation procedure, including the manner in which the applicant was requested to agree to it, was liable to arouse in her feelings of fear, anguish and inferiority and to entail lasting suffering”. This recognition of harm goes hand in hand with empathy for V.C. and the particular situation that she was in. The Court notes that her suffering is augmented by the fact that she was forcibly sterilized when she was very young (V.C. was 20 years old at the time) and thus only at the beginning of her reproductive life; the fact that the sterilization led to grave problems with her partner; the fact that she developed psychological problems; and that her sterilization led to social problems. The Court makes an interesting and, in our view, correct link between the harmful practice it condemns and the widespread prejudice against Roma. Following the Council of Europe Human Rights Commissioner and ECRI, the Court admits that the reason why the Roma population was at particular risk was “the widespread negative attitudes towards the relatively high birth rate among the Roma compared to other parts of the population, often expressed as worries of an increased proportion of the population living on social benefits” (paragraphs 146 and 147). The Court nicely brings human rights reports, including CEDAW’s into play.

Although, the Court finds that Article 14 (non – discrimination) merits no separate examination, goes the extra mile in its Article 8 analysis.

Adjudication method: Reference to domestic law of Slovakia in conjunction with the reference to international law.

Reference to other constitutional courts: No.

Reference to International Law: Articles 3, 8, 13 and 41 of European Convention on Human Rights

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication method and it referred to its former jurisprudence, i.e. A, B and C v. Ireland, Aksoy v. Turkey, Anayo v. Germany etc.

Bibliography: Peroni, L. (2011). Court condemns forced sterilization of Roma woman, Available at: http://strasbourgobservers.com/2011/11/17/court-condemns-forced-sterilization-of-roma-woman/ [accessed 17/11/2011].

Key words: Degrading treatment, Effective investigation, Inhuman treatment, Right to respect for private and family life, Positive obligations, Respect for family life, Respect for private life, Individual applications, Victim

Commentator/contact details: Despina Tziola, Aristotle University of Thessaloniki, Greece, deppytziola@hotmail.com.

IACL Project –Social Rights, Library of Social Rights

Country/Court: European Union/ European Court of Human Rights.

Year of Judgment/ Application No: 2011/ No 57813/00

Related social rights: Right to respect for private and family life / Protection of health

Constitutional provisions: No.

Subject: The case concerned two Austrian couples wishing to conceive a child through IVF. One couple needed the use of sperm from a donor and the other, donated ova. Austrian law prohibits the use of sperm for IVF and ova donation in general.

Summary of the Decision:

I. Facts of the case

Two Austrian couples complained about this regulation; the first couple needs IVF treatment with use of donor sperm and the other couple needs IVF with use of a donor ovum to fulfill their wish for a child of which at least one of them is the genetic parent. In 2010, the First Section held in S.H. and Others v. Austria that the Austrian regulation violated Article 14 in conjunction with Article 8 of the Convention, with a vote of 6-1 regarding the first couple and 5-2 vote regarding the second couple.

The Court noted that, although there was a clear trend across Europe in favour of allowing gamete donation for in-vitro fertilisation, the emerging consensus was still under development and was not based on settled legal principles. Austrian legislators had tried, among other things, to avoid the possibility that two women could claim to be the biological mother of the same child. They had approached carefully a controversial issue raising complex ethical questions and had not banned individuals from going overseas for infertility treatment unavailable in Austria. The Court concluded that there had been no violation of the Convention. However, it underlined the importance of keeping legal and fast-moving scientific developments in the field of artificial procreation under review.

II. The basic considerations of the case

For the ECLJ, the decision of the Grand Chamber to reverse this first judgment is of fundamental importance, because it confirms that the reference to “natural procreation” and to the “natural family” (with only one mother and one father), as the model for the regulation of the techniques of artificial procreation, justifies the ban of IVF with sperm or ova donations. It also confirms that the sensitive moral questions raised by IVF can legitimately be taken into consideration by national legislators. The First Section decision had a devastating effect on both the ontology and on the law: it was the destruction of the biological family as the social model, as well as the destruction of the “moral considerations” as a legitimate counterbalance of the use of biotechnologies. The Grand Chamber ruling comes only a few days after another major ruling on bioethics, delivered by the European Court of Justice (Luxembourg’s EU Court) in the case of Brüstle v. Greenpeace, which is also a victory for ethics and bioethics with regard to a purely immoral and utilitaristic vision of science and of human beings.

It should be noted that the Grand Chamber refuses to answer the question “whether there exists a positive obligation on the State to permit certain forms of artificial procreation using either sperm or ova from a third party”. A negative answer to this question would have been inevitable. On the contrary, assuming that the ban of heterologous techniques is an interference of the State with the applicants’ right of respect for their family life, the Court analysed the justification of this ban while taking into account other social interests (assessments of the “negative obligations” of the State).

On a more negative note, the Grand Chamber confirmed the Section assessment that “the right of a couple to conceive a child and to make use of medically assisted procreation for that purpose is also protected by Article 8, as such a choice is an expression of private and family life”. The ECLJ argued and maintained, along with the Italian government, that there is no “right of a couple to conceive a child and to make use of medically assisted procreation” under the Convention. There is only a right to attempt to conceive a child; otherwise, in an Orwellian style, the State would ultimately have to provide for the children. At the end of its decision, even if it finds no breach of the Convention, the Grand Chamber could not refrain from advising the Austrian legislator that “this area, in which the law appears to be continuously evolving and which is subject to a particularly dynamic development in science and law, needs to be kept under review by the Contracting States” , substituting itself to the national legislator.

Adjudication method: Reference to domestic law of Austria in conjunction with the reference to international law.

Reference to other constitutional courts: No.

Reference to International Law: Article 8 of European Convention on Human Rights

Bibliography: Puppinck, G. (2011). Bioethics: Major victory for family and state sovereignty before the Grand Chamber of the European Court of Human Rights, Available at: http://www.turtlebayandbeyond.org/2011/european-court-of-human-rights/bioethics-major-victory-for-family-and-state-sovereignty-before-the-european-court-of-human-rights/ [accessed 3/11/2011].

Key words: Right to respect for private and family life, Respect for family life, Respect for private life, Necessary in a democratic society, Protection of health, Protection of morals, Protection of the rights and freedoms of others

Commentator/contact details: Despina Tziola, Aristotle University of Thessaloniki, Greece, deppytziola@hotmail.com.

IACL Project –Social Rights, Library of Social Rights

Country/Court: European Union/ European Court of Human Rights.

Year of Judgment/ Application No: 2007/ No 5410/03

Related social rights: Protection of right to health

Constitutional provisions: No.

Subject: A pregnant woman from Poland, diagnosed with a severe eye disease, tried to get an abortion to avoid an escalation of her disease. Her requests were rejected by several medical doctors and she underwent labor of her third child. Her condition later deteriorated, and she sued one of the doctors.

Summary of the Decision:

I. Facts of the case

This case concerns Alicja Tysiąc, a Polish woman who has suffered for many years from severe myopia. When she discovered that she was pregnant for the third time, she consulted several doctors in Poland to determine what impact this might have on her sight. Although doctors concluded that there would be a serious risk to her eyesight if she carried the pregnancy to term, they refused to issue a certificate authorising termination. Two months in to the pregnancy, her eyesight deteriorated significantly. She secured a referral for a termination on medical grounds but the gynaecologist refused to perform it. There was no procedure through which Ms Tysiąc could appeal this decision and she gave birth to a child in November 2000. Her eyesight deteriorated further following the delivery. She now cannot see objects more than 1.5 metres away, risks becoming completely blind, and requires daily assistance.

In March 2007, European Court of Human Rights found that the Polish legal framework did not provide an effective mechanism to resolve disagreements as to the availability or legality of therapeutic termination in any case, either between a pregnant woman and doctors or between medical staff themselves. Concluding that Poland had violated Ms Tysiąc’s right to respect for private life and noting the severe distress and anguish caused to her, the Court ordered Poland to pay a substantial sum in non-pecuniary damages. In September 2007, the Grand Chamber of the Court announced that it would not be considering the Court's earlier decision.

II. The basic considerations of the case

1.a) The Court stated that ´the failure of the State to make a legal abortion possible in circumstances which threatened her health, and to put in place the procedural mechanism necessary to allow her to have this right realised, meant that the applicant was forced to continue with a pregnancy for six months knowing that she would be nearly blind by the time she gave birth. The anguish and distress and the subsequent devastating effect of the loss of her sight on her life and that of her family could not be overstated.´ However, it held that in the instant case there was no violation of Article 3. The Court reached this conclusion without fully explaining why this anguish and distress did not reach the threshold of cruel, inhumane or degrading treatment.

1.b) The Court went on to examine article 8 of the Convention and the right to due respect for her private life and her physical and moral integrity. After first noting the general principles, the Court highlighted that that there may also be positive obligations in an effective respect for private life. The Court also noted that the boundaries between State´s positive and negative obligations under Article 8 do not lend themselves to precise definition.

The applicant argued that this right had been violated by the Polish government for failing to provide her with a legal therapeutic abortion, and further, that the absence of a comprehensive legal framework regulating these services resulted in a breach of Poland´s positive obligations.

The Court found that article 8 was applicable in the instant case as it related to the right to respect for private life. It found that it was most appropriate to decide the case on the basis of the government´s fulfillment of its obligations under the Convention. Before determining whether the State had acted in compliance with article 8 the Court reiterated that rights under the convention are not theoretical or illusory but that they are practical and effective. In examining State compliance with article 8, the Court noted the fifth periodical report to the ICCPR Committee in which the Polish government acknowledged that there had been deficiencies in the manner in which the 1993 had been applied in practice.

The Court found that when there are situations of disagreement as regards to legal abortions such applicable legal provisions ´must, first and foremost, ensure clarity of the pregnant women´s legal position´. The Court went on to find that while the State regulations on abortion relate to the traditional balancing of privacy and the public interest, they must 'in case of a therapeutic abortion' be also assessed against the positive obligations of the State to secure the physical integrity of mothers-to-be. The Court stated that ´once the legislature decides to allow abortion, it must not structure its legal framework in a way which would limit real possibilities to obtain it´.

The Court citing previous case law found that there must be procedures available in order to review the circumstances of a case. In the instant case, the court held that an appropriate procedure would entail allowing a pregnant woman at least a possibility to be heard in person and to have her views considered. Then a competent body should issue written grounds for its decision. The Court found that the procedures in place should ensure that decisions are timely so as to limit or prevent damage to a woman´s health which might be occasioned by a late abortion. In the instant case, there was no regulation regarding the appropriate procedure to be followed when there was disagreement between medical personnel concerning the effects of a pregnancy on the woman. This had left the applicant in a situation of anguish and distress due to the uncertainty.

The Court therefore found that the absence of preventative procedures in domestic law amounted to the failure of the State to comply with its positive obligations under Article 8 of the Convention.

Adjudication method: Reference to domestic law of Poland in conjunction with the reference to international law.

Reference to other constitutional courts: No.

Reference to International Law: Article 3, 13, 14 and 35 of European Convention on Human Rights

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication method and it referred to its former jurisprudence, i.e. etc.

Bibliography: Women’s link worldwide (2007). Tysiac v. Poland, Available at: http://www.womenslinkworldwide.org/wlw/new.php?modo=observatorio&id_decision=295&lang=en [accessed 20/02/2007)

Key words: Admissibility criteria, Exhaustion of domestic remedies, Positive obligations, Prohibition of discrimination, Discrimination, Prohibition of torture, Degrading treatment, Inhuman treatment, Right to an effective remedy, Effective remedy

Commentator/contact details: Despina Tziola, Aristotle University of Thessaloniki, Greece, deppytziola@hotmail.com.

IACL Project –Social Rights, Library of Social Rights

Country/Court: European Union/ European Court of Human Rights.

Year of Judgment/ Application No: 2012/ No 29518/10

Related social rights: Right to respect for private and family life / Prohibition of inhuman or degrading treatment.

Constitutional provisions: No.

Subject: In the case of N.B. v. Slovakia (Application no. 29518/10, Judgment of June 12 2012) the ECtHR found the violation of Article 3 and 8 of the ECHR in relation with a Roma woman’s sterilisation.

Summary of the Decision:

I. Facts of the case

N.B. was forcibly sterilized in the Gelnica Hospital, in Eastern Slovakia, during the caesarean section delivery of her second child v on 25 April 2001. At the time of sterilization, she was only 17 years old, and was a legal minor under the Slovak law. Informed consent of her legal guardians (parents) was legally required. However, the guardians did not give any consent to sterilization and no record on this was entered in the release report from the hospital. N.B. found about the sterilization only several months later, after her lawyers inspected her medical records in the Hospital. Afterwards, in 2004, N.B. sued the Hospital for damages and she also started criminal proceedings against the doctors. In 2008, the District Court in Spišska Nova Ves found sterilization illegal and granted her compensations in amount of app. 1,590 EUR. N.B. found this inadequate in the view of the seriousness of the forced intervention. The police and the Constitutional Court of Slovakia rejected her complaints, so she brought the case to the European Court. The Court ruled in her favour on 12 June 2012. N.B. was represented by lawyers from the Slovak feminist group Center for Civil and Human Rights from Košice who represent many other similar cases. After the decision, they called on the Slovak Government to compensate all the victims in pending cases instead of repeatedly "facing an international humiliation and condemnation"

The Court unanimously found that the Romani woman had been sterilized without informed consent in contravention of Articles 3 and 8 of the European Convention on Human Rights.

II. The basic considerations of the case

1.a) The applicant complained that she had been subjected to inhuman and degrading treatment on account of her sterilisation without her and her representative’s full and informed consent. She maintained that her sterilisation had not been a life-saving intervention and that it had had a lasting impact on her physical and psychological health, her relationship with her husband, and on her family and had affected her position within the Roma community which had amounted to treatment contrary to Article 3 of the ECHR. The Court found that the way by which the medical staff of the hospital obtained the applicant’s consent to the sterilisation violated the applicant’s physical integrity and was grossly disrespectful of her human dignity. The medical staff “acted with gross disregard for her human freedom, including the right to freely decide, together with her representative and after having had the possibility of discussing the matter with her partner, whether she consented to the procedure”. Although the information available for the Court did not indicate that the medical staff acted with the intention of ill-treating the applicant, they nevertheless acted with gross disregard for her human freedom, including the right to freely decide, together with her representative and after having had the possibility of discussing the matter with her partner, whether she consented to the procedure. The Court also noted that N.B., at the time of the intervention, was still legally underage and the and at an early stage of her reproductive life. The sterilisation grossly interfered with her physical integrity, as she was thereby deprived of her reproductive capacity. The Court found that there had been a violation of Article 3 of the ECHR on account of the applicant’s sterilisation stating that [g]iven its serious nature and consequences, the sterilisation procedure, including the manner in which the applicant was asked to agree to it, was liable to arouse in her feelings of fear, anguish and inferiority and to entail lasting suffering.

1.b) The applicant also complained that her right to respect for her private and family life had been violated as a result of her sterilisation, which had been carried out contrary to the requirements of the relevant law and without her and her mother’s full and informed consent. The applicant maintained that her private and family life had been severely affected as a result of the sterilisation procedure. On the other hand the Government pointed to the fact that the domestic courts had acknowledged that the requirements of domestic law had not been complied with in the applicant’s case. They further argued that the medical staff had considered the procedure necessary with a view to protecting the applicant’s life and health. The Court found that there had been a breach of Article 8 of the ECHR as the applicant’s sterilisation affected her reproductive health status and had repercussions on various aspects of her private and family life. It therefore amounted to interference with her rights under Article 8. It was carried out contrary to the requirements of domestic law, as the applicant’s mother had not given her consent to the procedure. This was not disputed between the parties.

Therefore Slovakia failed to comply with its positive obligation under Article 8 by putting in place effective legal safeguards to protect the reproductive health of, in particular, women of Roma origin. The “failure to respect the statutory provisions combined with the absence at the relevant time of safeguards giving special consideration to the reproductive health of the applicant as a Roma woman resulted in a failure by the respondent State to comply with its positive obligation to secure to her a sufficient measure of protection enabling her to effectively enjoy her right to respect for her private and family life”.

Adjudication method: Reference to domestic law of Slovakia in conjunction with the reference to international law.

Reference to other constitutional courts: No.

Reference to International Law: Articles 3, 8, 34, 35 and 41 of European Convention on Human Rights

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication method and it referred to its former jurisprudence, i.e. Adamski v. Poland, Aksoy v. Turkey, Amuur v. France, etc.

Bibliography: Peter Buzás (2012), N.B. v. Slovakia, Available at: http://coebio.blogspot.gr/2012/06/nb-v-slovakia-application-no-2951810.html [accessed 13/06/2012].

Commentator/contact details: Despina Tziola, Aristotle University of Thessaloniki, Greece, deppytziola@hotmail.com.

IACL Project –Social Rights, Library of Social Rights

Country/Court: European Union/ European Court of Human Rights.

Year of Judgment/ Application No: 2007/ No 6339/05

Related social rights: Right to respect for private and family life / Right to life

Constitutional provisions: No.

Subject: Evans v. the United Kingdom was a key case at the European Court of Human Rights. The case outcome could have had a major impact on fertility law, not only within the United Kingdom but also the other Council of Europe countries.

Summary of the Decision:

I. Facts of the case

Natallie Evans, who was suffering from ovarian cancer, underwent in-vitro fertilisation (IVF) with her then partner J. before having her ovaries removed. Six embryos were created and placed in storage. When the couple’s relationship ended, J withdrew his consent for the embryos to be used, not wanting to be the genetic parent of Ms Evan’s child. National law consequently required that the eggs be destroyed, thus preventing Ms Evans from ever having a child to whom she would be genetically related.

While sympathising with Ms Evan’s plight, the European Court of Human Rights found no violation of Articles 2 (right to life), 8 (right to respect for family life) or 14 (prohibition of discrimination) of the European Convention on Human Rights: the embryos created did not have a right to life; there was no European consensus; and, the rules on consent were clear, brought to Ms Evan’s attention before she underwent IVF and struck a fair balance between the competing interests.

II. The basic considerations of the case

1.a) The alleged violation of Article 2 of the ECHR related to the embryos themselves, that the legal requirement to destroy the stored embryos once consent had been withdrawn violated the embryos’ right to life. Although Miss Evans legal team did not pursue this alleged violation in the appeal, the Grand Chamber was required to consider this matter again, albeit briefly. The Grand Chamber is in agreement with the Chamber that due to the lack of a European consensus on an accepted definition of the beginning of life, “…the issue of when the right to life begins comes within the margin of appreciation…Under English law,…an embryo does not have independent rights or interests and cannot claim…a right to life under Article 2. There had not, accordingly, been a breach of that provision.”

1.b) Article 8, the right to respect for private life, was agreed to include the right to respect for both the decision to become and not to become a parent and that this also includes the decision to become a parent in the genetic sense. This undoubtedly involves a conflict between the Article 8 rights of two private individuals, which ever solution is used will result in one party either being forced to become a parent, or the other being denied the opportunity of becoming a genetic parent. Additionally, the Grand Chamber accepted the UK Government submission that the case also involved wider public interests, namely to uphold the principle of primacy of consent and to promote legal clarity and certainty. In contrast to the UK Courts the Grand Chamber views this case as involving positive obligations upon the State, rather than interference, and that “…the principal issue…being whether the legislative provisions as applied in the present case struck a fair balance between the competing public and private interests involved.” In seeking to determine the question whether the application of the law struck a fair balance between competing interests, it is recognised by the Grand Chamber that the margin of appreciation to be afforded to the UK is a wide margin due to the lack of common ground in the Member States on these difficult ethical issues and that the policies and principles to be applied in these sensitive areas is to be decided by each State. The detailed and lengthy process which the UK undertook before the enactment of the Human Fertilisation and Embryology Act 1990 is also considered as relevant by the Grand Chamber. Miss Evans criticised the consent rules laid out in the Act due to the inability to disapply them in certain circumstances. However, the Grand Chamber “…does not find that the absolute nature of the law is, in itself, necessarily inconsistent with Article 8. …Respect for human dignity and free will, as well as a desire to ensure a fair balance between the parties…underlay the legislature’s decision to enact provisions permitting of no exception…In addition…the absolute nature of the rule served to promote legal certainty and to avoid the problems of arbitrariness and inconsistency inherent in weighing…”entirely incommensurable” interests.” As such the Grand Chamber concludes that the “…general interests pursued by the legislation are legitimate and consistent with Article 8.” In respect of the competing private interests the Grand Chamber is adamant that Miss Evans’ right to respect to become a genetic parent should not be accorded greater weight than Mr Johnston’s right to respect his decision not to have a genetically related child with Miss Evans. A fair balance had been struck between all of the competing interests, the domestic law is clear and brought to Miss Evans’ attention at the time of treatment and storage, and as such there was no violation of Article 8 of the ECHR.

Furthermore, the Court dismissed the argument that there was discrimination between women who could conceive without medical assistance and women, such as herself, who required medical assistance for conception under article 14 of European Convention on Human Rights.

Adjudication method: Reference to domestic law of United Kingdom in conjunction with the reference to international law.

Reference to other constitutional courts: No.

Reference to International Law: Articles 2, 8, and 14 of European Convention on Human Rights

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication method and it referred to its former jurisprudence, i.e. Christine Goodwin v. the United Kingdom, Dudgeon v. the United Kingdom, Fretté v. France etc.

Bibliography: Hammond, N. (2007). Case Commentary: Evans v The United Kingdom, Available at: http://www.ccels.cf.ac.uk/archives/issues/2007/hammond.pdf

[accessed April 2007].

Key words: Right to life, Discrimination, Life, Right to respect for private and family life, Positive obligations, Respect for family life, Respect for private life

Commentator/contact details: Despina Tziola, Aristotle University of Thessaloniki, Greece, deppytziola@hotmail.com.

IACL Project –Social Rights, Library of Social Rights

Country/Court: European Union/ European Court of Human Rights.

Year of Judgment/ Application No: 2007/ No 44362/04

Related social rights: Right to respect for private and family life

Constitutional provisions: No.

Subject: The respondent state's refusal to exercise its discretion in allowing the applicant prisoner to have facilities for artificial insemination breached his and his wife's rights under Article 8 of the Convention.

Summary of the Decision:

I. Facts of the case

The complainant husband was serving a minimum sentence of 15 years after a conviction for murder for kicking a drunken man to death. He and his wife, the second complainant, established a pen-pal relation while both were serving prison sentences. The couple had never lived together; there was a 14-year age difference between them; the wife, who had three children by previous relationships, was by now at an age where natural or artificial procreation was hardly possible and in any case risky. The first complainant's expected release date fell when the wife, already released, would be 51 years old. It therefore followed that any child which might be conceived would be without the presence of a father for an important part of his or her childhood years. The first application for artificial insemination facilities was made over six years before the instant hearing. The secretary of state's refusal had been on the grounds that the first complainant's relationship had yet to be tested in a normal environment, that there was insufficient provision for the material welfare of any child conceived, who would also be without the presence of a father for an important period of childhood, and that there would be legitimate public concern that the punitive and deterrent elements of the life sentence for a violent crime would be circumvented. He was unsuccessful in applying for judicial review, and for leave to appeal. Invoking Article 8 of the Convention they complained that the refusal of the respondent state to allow them facilities for artificial insemination was in breach of their rights to private and family life.

The Court held, by 12 votes to five, that there had been a violation of Article 8 of the Convention as a fair balance had not been struck between the competing public and private interests.

II. The basic considerations of the case

While the Chamber confirmed that persons continued to enjoy all Convention rights following conviction except the right to liberty, it also noted that any prison sentence has some effect on the normal incidents of liberty and inevitably entailed limitations and controls on the exercise of Convention rights. The fact of such control was not, in principle, incompatible with the Convention but the key issue was whether the nature and extent of that control was compatible. The Court considers that Art.8 is applicable to the applicants' complaints in that the refusal of artificial insemination facilities concerned their private and family lives which notions incorporate the right to respect for their decision to become genetic parents. There is, therefore, no question that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction. Thus, restrictions must be justified. This justification can flow, inter alia, from the necessary and inevitable consequences of imprisonment. As to the applicants' interests, it was accepted domestically that artificial insemination remained the only realistic hope of the applicants. Whilst the inability to beget a child might be a consequence of imprisonment, it is not an inevitable one, it not being suggested that the grant of artificial insemination facilities would involve any security issues or impose any significant administrative or financial demands on the State. Similarly, while the maintaining of public confidence in the penal system has a role to play in the development of penal policy and that punishment remains one of the aims of imprisonment, penal policy has evolved towards the increasing relative importance of the rehabilitative aim of imprisonment, particularly towards the end of a long prison sentence. The Court is prepared to accept as legitimate, for the purposes of the second paragraph of Art.8, that the authorities, when developing and applying the policy, should concern themselves, as a matter of principle, with the welfare of any child: conception of a child was the very object of the exercise. However, that cannot go so far as to prevent parents who so wish from attempting to conceive a child in circumstances like those of the present case, especially as the second applicant was at liberty and could have taken care of any child conceived until such time as her husband was released.

Adjudication method: Reference to domestic law of United Kingdom in conjunction with the reference to international law.

Reference to other constitutional courts: No.

Reference to International Law: Articles 8, 12 and 41 of European Convention on Human Rights

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication method and it referred to its former jurisprudence, i.e. Aliev v. Ukraine, Boso v. Italy, E.L.H. and P.B.H. v. the United Kingdom, Kalashnikov v. Russia etc.

Bibliography: Family Law Notes (2008). Dickson v UK [2008] 1 FLR 1315 ECtHR, Available at: http://www.oxbridgenotes.co.uk/products/family-law-notes/samples/dickson-v-uk [accessed 1/11/2012].

Key words: Right to respect for private and family life, Respect for family life, Respect for private life, Just satisfaction, Jurisdiction to give orders or grant injunctions, Margin of appreciation, Positive obligations, Proportionality, Right to marry, Found a family

Commentator/contact details: Despina Tziola, Aristotle University of Thessaloniki, Greece, deppytziola@hotmail.com.

SOUTH AFRICA

Constitutional Court decisions

1- Republic of South Africa v Grootboom and others 2000 (11) BCLR 1169 (CC) (The Grootboom case)

Related social right: Housing

Constitutional Provisions: Section 26 of the South African Constitution

Summary of the decision

a) Facts

A group of adults and children lived in very poor conditions and, during the rainy season in the Western Cape, the land on which they resided became water-logged. After moving to vacant private land, they were evicted and their belongings destroyed. They landed up on a sports field with only plastic sheeting to cover them. They claimed that the government had a duty to provide them with shelter from the elements. The High Court held that only the children could claim immediate shelter; parents of children could, however, claim shelter by virtue of their children’s right since they should not be separated from their children. Nevertheless, on appeal, the Constitutional Court found that the right to have access to adequate housing of both adults and children was implicated in this case. It decided that the housing programme of the government was unreasonable and thus unconstitutional

b) Key reasoning

The court outlined its approach to socio-economic rights in this case. The state had a duty to establish a programme to realise the socio-economic rights in the bill of rights. That programme had to be reasonable. The court outlined several criteria as to what was involved in establishing a reasonable programme. The latter involves the establishment and implementation by the state of a coherent, well coordinated, flexible and comprehensive programme directed towards the progressive realisation of the right of access to adequate housing. In this vein, the state is not only compelled to adopt legislative and policy measures, but also to act in a manner that is designed to achieve the intended result. Moreover, a reasonable programme must ‘make appropriate provision for attention to housing crises and to short, medium and long term needs’. The court then evaluated the government housing programme against the reasonableness standard. It found that the absence of a provision in the housing programme that dealt with people in desperate need in the shorter term, rendered the programme unreasonable. The order in this case was simply declaratory: it declared the government housing programme unreasonable without mandating that anything specific be done.

Adjudication method

Limited focus on socio-economic rights themselves; focus on reasonableness as a notion and outlined criteria that were involved in assessing reasonableness

References to other constitutional courts

Ex Parte Western Cape Provincial Government and Others: In Re DVB Behuising (Pty) Ltd v North West Provincial Government and Another 2000 (4) BCLR 347 (CC) .

Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa, 1996 (4) SA 744; 1996 (10) BCLR 1253 (CC)

Brink v Kitshoff NO 1996 (4) SA 197 (CC); 1996 (6) BCLR 752 (CC)

Prinsloo v Van der Linde and Another 1997 (3) SA 1012 (CC); 1997 (6) BCLR 759 (CC).

S v Makwanyane and Another 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC)

Shabalala and Others v Attorney-General, Transvaal and Another 1996 (1) SA 725 (CC); 1995 (12) BCLR 1593 (CC)

Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (CC)

Azanian Peoples Organisation (AZAPO) and Others v President of the Republic of South Africa and Others 1996 (4) SA 671 (CC); 1996 (8) BCLR 1015 (CC)

Reference to International Law

YES: ICESCR and United Nations General Comments

Relation with former jurisprudence/Innovative elements

There had been very limited jurisprudence prior to this case. The focus in the prior case had been on the question of available resources. A minimal rationality standard had been outlined. This case outlines a reasonableness standard for assessing social rights programmes of the government. It rejects the minimum core approach at the international law which is something that has attracted much academic criticism

Bibliography

Bilchitz, D Poverty and Fundamental Rights The Justification and Enforcement of Socio-economic Rights (2007) Oxford University Press

Bilchitz, D ‘Giving Socio-Economic Rights Teeth: The Minimum Core and its Importance’ (2001) 119 South African Law Journal 484-501

Brand, D and Russel, S (ed) Exploring the Core Content of Socio-Economic Rights: South African and International Perspectives (2002) Pretoria. Protea Book House

Chirwa D & Khoza S ‘Towards enhanced citizenship and poverty eradication: A critique of Grootboom from a gender perspective’ in Gouws A (ed) (Un)thinking Citizenship: Feminist Debates in Contenporary South Africa (2005) Cape Town, Juta

Liebenberg, S Socio-Economic Rights adjudication under a transformative constitution (2009) Cape Town. Juta

Wesson, M ‘Grootboom and beyond: Reassessing the Socio Economic Right Jurisprudence of the South African Constitutional Court’ (2004) 20 South African Journal on Human Rights.

Commentator/contact details: David Bilchitz, davidb@saifac.org.za

2- Minister of Health and Others v Treatment Action Campaign 2002 (10) BCLR 1033(CC) (the TAC case)

Related social right: Access to healthcare

Constitutional Provisions: Section 27(1)(a) of the South African Constitution

Summary of the decision

a)Facts:

The case concerned access to a drug, nevirapine, which reduced the likelihood of mother to child transmission of HIV at birth. Despite the drug being freely available to the government, it had made it available to individuals in the public health care system only at 18 research and training sites across the country. A civil society organisation, the Treatment Action Campaign took the case to court , claiming that the failure to make the drug universally available violated the right to have access to the health care services (section 27(1)(c) of the Constitution.

b) Basic consideration of the case/ key reasoning

The court continued to focus on the notion of whether the government programme in question was reasonable. Given the safety and efficacy of the drug as well as its availability for free to the government, the court found the failure to make it universally available across the public health care system was unreasonable. It found that the desire of the government to establish the best possible treatment programme should not stand in the way of ensuring people have access to the drug in the interim whilst such a programme was being designed. In this case, it went beyond Grootboom, and gave a mandatory order, requiring universal access to this drug as well as for counselling to be provided across the health care system.

Adjudication method

The court continued to employ the reasonableness doctrine that a government programme must be reasonable. It also rejected once again the minimum core approach. It also outlined that it had wide remedial powers in relation to socio-economic rights in order to give both mandatory and supervisory orders.

References to other constitutional courts

Yes

Hoffmann v South African Airways 2001 (1) SA 1 (CC); 2000 (11) BCLR 1211 (CC)

Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (CC)

Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC)

2000 (11) BCLR 1169 (CC)

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC);

1996 (1) BCLR 1 (CC)

South African Association of Personal Injury Lawyers v Heath and Others 2001 (1) SA 883 (CC); 2001 (1) BCLR 77 (CC)

Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC)

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC)

Premier, Mpumalanga, and Another v Executive Committee, Association of State-Aided Schools, Eastern Transvaal 1999 (2) SA 91 (CC); 1999 (2) BCLR 151 (CC)

August and Another v Electoral Commission and Others 1999 (3) SA 1 (CC); 1999 (4) BCLR 363 (CC)

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC)

Mohamed and Another v President of the Republic of South Africa and Others (Society for the Abolition of the Death Penalty in South Africa and Another Intervening) 2001 (3) SA 893 (CC); 2001 (7) BCLR 685

(CC)

Pretoria City Council v Walker 1998 (2) SA 363 (CC); 1998 (3) BCLR 257 (CC)

Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC); 1997 (12) BCLR 1675 (CC)

New National Party of South Africa v Government of the Republic of South Africa and Others 1999 (3) SA 191 (CC); 1999 (5) BCLR 489 (CC)

Reference to International Law

Yes: ICESCR, General Comment NO 3

Relation with former jurisprudence/Innovative elements

The reasonableness standard for assessing social rights programmes of the government still informs the proceedings. Here confining nevirapine to research and training sites was unreasonable as it fails to address the needs of mothers and their newborn children who do not have access to these sites.

Bibliography

Bilchitz, D ‘South Africa: Right to Health and Access to HIV/AIDS Drugs Treatment’ (2003) 1(3) International Journal of Constitutional Law 524-534

Bilchitz, D ‘Towards a Reasonnable Approach to the Minimum Core: Laying the Foundations for Future Socio Economic Rights Jurisprudence’ (2003) 10 South African Journal on Human Rights 1-26

Chapman, A ‘Core Obligation Related to the Right to Health and their Relevance for South Africa’ in Brand, D and Russel, S (eds ) Exploring the Core Content of Socio-Economic Rights: South African and International Perspectives (2002) Pretoria. Protea Book House

Heywood, M ‘Contempt or Compliance? The TAC case after the Constitutional Court judgment’ (2003) 4 Economic and Social Rights Review 7

Heywood, M ‘Preventing Mother –to- Child HIV Transmission in South Africa: Background to, strategies and outcome of the Treatment Action Campaign case against the Minister of Health’ (2003) 19 South African Journal on Human Rights 278

Klaaren J ‘A Remedial Interpretation of the Treatment Action Campaign Decision’ (2003) 19 South African Journal on Human Rights

Commentator/contact details: David Bilchitz, davidb@saifac.org.za

3- Khosa v Minister of Social Development 2004 (6) SA 505 (CC)

Related social right: Right to social security

Constitutional Provisions: Section 27(1)(c) of the South African Constitution

Summary of the decision

a) Facts:

The case dealt with Mozambican citizens who had acquired permanent residence permits in South Africa. These Mozambicans people were poor and would have been eligible for pension grants and child support grants but for the fact that they were not citizens of South Africa. They challenged the constitutionality of the limitation of social grants in the Social Assistance Act to South African citizens only. The permanent residents argued that section 27 of the Constitution provides for the right to social assistance for ‘everyone’ including permanent residents and not only South Africans. The Court found for the applicants and declared the legislation to be unconstitutional, and ordered that the words “or permanent residents” be read into the legislation so as to allow permanents residents to benefit from these social grants.

b) Basic consideration of the case/ key reasoning

The Court noted that political rights (section 19 of the Constitution) and the right to have access to land were clearly limited to South African citizen only. However, the court pointed out that section 27 expressly refers to “everyone” having the right to social assistance grants, and this, it held, could not be seen to refer to South Africans only. The court also importantly in this case considered the intersection between social rights and the right to equality (section 9 of the Constitution) in reaching its decision. The central question concerned whether the exclusion of a particular group from a social programme constituted unfair discrimination and was, as a result, unreasonable. The case linked together the ‘reasonableness’ approach in relation to social rights with the court’s approach to unfair discrimination claims.

Adjudication method

The court continued to employ the reasonableness doctrine that a government social programme must be reasonable. It then asked whether the exclusion of permanent residents from accessing social grants was reasonable. In doing so, it considered whether such an exclusion constituted unfair discrimination. In this enquiry, the court considered the purpose served by social security, the impact of the exclusion on permanent residents and the relevance of the citizenship to that purpose. Permanent residents, the court held, had made South Africa their home, have similar legal obligations to citizens and their exclusion from social grants would hinder their ability to enjoy other rights under the Constitution. Taking all these factors into account, the court reached the conclusion that the exclusion of permanent residents from social assistance programmes constituted unfair discrimination and was consequently unreasonable. A minority decision disagreed with the evaluation of the majority and found that the exclusion of permanent residents was itself reasonable.

References to other constitutional courts

Dawood and Another v Minister of Home Affairs and Others, Shalabi and Another v Minister of

Home Affairs and Others,

Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC)

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC); 2000 (1) BCLR 39

In re Certain Amicus Curiae Applications: Minister of Health and Others v Treatment Action Campaign and Others 2002 (5) SA 713 (CC); 2002 (10) BCLR 1028 (CC)

Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC)

Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (CC)

Minister of Health and Others v Treatment Action Campaign and Others (2), 2002 (5) SA 721; 2002 (10) BCLR 1033 (CC)

Larbi-Odam and Others v Member of the Executive Council for Education (North-West Province) and Another 1998 (1) SA 745 (CC); 1997 (12) BCLR 1655 (CC)

City Council of Pretoria v Walker 1998 (2) SA 363 (CC); 1998 (3) BCLR 257 (CC)

Harksen v Lane NO and Others 1998 (1) SA 300 (CC); 1997 (11) BCLR 1489 (CC)

President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC); 1997 (6) BCLR 708 (CC)

Hoffmann v South African Airways 2001 (1) SA 1 (CC); 2000 (11) BCLR 1211 (CC)

S v Manamela (Director-General of Justice intervening) 2000 (3) SA 1 (CC); 2000 (5) BCLR 491 (CC)

Reference to International Law

Relation with former jurisprudence/Innovative elements

The reasonableness doctrine was used again in this case as well as the court’s approach to unfair discrimination outlined in the Harksen v Lane case. The court also referred to other cases where it found that discrimination against non-citizens could be an analogous ground others expressly listed in the unfair discrimination clause.

Bibliography

Becker, U & Olivier, M (ed) Access to Social Security for Non-citizens and Informal Sector Workers An International, South African and German Perspectives (2008), Stellenbosch, African Sun Media

Krause, C & Scheinin M ‘ The Right not to be Discriminated Against: The Case of Social Security’ In Orlin T, Rosas A & Scheinin M (eds) The Jurisprudence of Human Rights Law: A Comparative Interpretation Approach (2000) Abo Akademi University Institute for Human Rights.

Liebenberg, S ‘The Judicial Enforcement of Social Security Rights in South Africa: Enhancing Accountability for the Basic Needs of the Poor’ In Riedel E (ed) Social Security as a Human Right: Drafting A General Comment on Article 9 ICESCR (2006), Springer

Wesson M ‘Discrimination Law and Social Rights: Intersections and Possibilities’ (2007) XIII Juridicata International 74-82

Van Rensburg L J & Lamarche L ' Rights to Social Security and Assistance’ available at http://www.puk.ac.za/opencms/export/PUK/html/fakulteite/regte/pdf/HeynsxBrand_Socio-Economic_Rights_Social_Security__PRINT_.pdf (accessed 4 November 2012).

Commentator/contact details: David Bilchitz, davidb@saifac.org.za

IACL Project –Social Rights, Library of Social Rights

Country/Court: European Union/ European Court of Human Rights.

Year of Judgment/ Application No: 2012/ No 38245/08

Related social rights: Right to a fair trial

Constitutional provisions: No.

Subject: Application to the ECtHR by mother in care proceedings, claiming that her Article 6, 8 and 13 rights had been violated, partly as a result of the involvement of the Official Solicitor.

Summary of the Decision:

I. Facts of the case

The first applicant, RP, was a mother in care proceedings which concerned her child KP. KP was born prematurely and suffered from serious medical conditions. Due to concerns about RP's care of her child the local authority issued care proceedings. A psychological assessment of RP was undertaken following concerns raised by her counsel that RP lack capacity to conduct the proceedings. As a result of this assessment the Official Solicitor was appointed to act within the proceedings for RP. The proceedings concluded with KP being placed for adoption. At the final hearing RP's opposition to this was made known to the court but the Official Solicitor did not oppose the making of care and placement orders. RP's appeal to the Court of Appeal was rejected. She subsequently commenced applications to set aside the placement order and in relation to contact. She was considered to have capacity for these applications. RP alleged that her article 6, 8 and 13 of the Convention were violated by the court proceedings. Applications were also brought by RP's mother, father and brother. The Equality and Human Rights Commission intervened in the proceedings.

The court found that RP's article 6, 8 and 13 rights were not violated and her family's rights were similarly not violated.

II. The basic considerations of the case

Article 6 reads as follows: “1.In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and the facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.” The majority of Convention violations that the Court finds today are excessive delays, in violation of the "reasonable time" requirement, in civil and criminal proceedings before national courts, mostly in Italy and France. Under the "independent tribunal" requirement, the Court has ruled that military judges in Turkish state security courts are incompatible with Article 6. Another significant set of violations concerns the "confrontation clause" of Article 6 (i.e. the right to examine witnesses or have them examined). In this respect, problems of compliance with Article 6 may arise when national laws allow the use in evidence of the testimonies of absent, anonymous and vulnerable witnesses. The outcome in this case is perhaps not hugely surprising. If it had been otherwise, the system of representation in England and Wales for those lacking litigation capacity and who do not otherwise have the benefit of a litigation friend would have collapsed. However, three points of significance arise: 1) This is only the most recent of the cases in which the Court has construed the ECHR by reference to the UN Convention on the Rights of Disabled Persons; 2) The Court placed considerable emphasis upon the steps taken to explain to RP the ways in which she could seek to challenge the appointment of the Official Solicitor; it therefore left open the possibility that a failure on the part of the particular individuals appointed to act on the part of the protected party (whether that be RP or another party to the litigation) to convey the necessary information in an appropriate form would give rise to a breach of Article 6(1); 3) The endorsement of the proposition that ‘acting in the best interests’ of a protected party does not require advancing every argument that party wishes to be relayed to the Court is of assistance, although it is necessary to ensure that where the protected party has a particularly important stake in the outcome of the proceedings that their views are appropriately conveyed to the Court. This is particularly so where the protected party is RP him or herself (rather than, as in RP’s case, a protected party other than the subject of the litigation). In such circumstances, it is suggested that, even if not formally advanced by way of argument to the Court, RP’s views must clearly and fully put before the Court so as to comply the duty to safeguard their rights under Article 6(1) ECHR.

The European Court of Human Rights, furthermore, determined: 1. The decision to involve the Official Solicitor was taken after a thorough assessment by a consultant clinical psychiatrist and, in practice, further assessment was undertaken of her capacity during the proceedings. 2. Further there was a means for RP to challenge the involvement of the Official Solicitor even though those proceedings fell short of a formal appeal. 3. It was not practical for there to be regular reviews of capacity within the court process as this would cause delay. 4. The Official Solicitor was not obliged to advance any argument RP wished but he should (and did) make her views known to the court.

Adjudication method: Reference to domestic law of United Kingdom in conjunction with the reference to international law.

Reference to other constitutional courts: No.

Reference to International Law: Articles 6, 8, 12 and 41 of European Convention on Human Rights

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication method and it referred to its former jurisprudence, i.e. McMichael v. the United Kingdom, Blečić v. Croatia, Airey v. Ireland etc.

Bibliography: Thirty Nine Essex Street LLP, RP v UK [2012] ECHR 1796 (Application no. 38245/08), Available at: http://www.lexology.com/library/detail.aspx?g=f7b5b4e4-502a-43d2-9df9-f08eeb3c081f [accessed 31/10/2012].

Key words: Right to a fair trial, Civil proceedings, Access to court, Procedural aspects of right to family life

Commentator/contact details: Despina Tziola, Aristotle University of Thessaloniki, Greece, deppytziola@hotmail.com.

IACL Project –Social Rights, Library of Social Rights

Country/Court: European Union/ European Court of Human Rights.

Year of Judgment/ Application No: 2002/ No 56547/00

Related social rights: Right to a fair trial / Right to respect for private and family life.

Constitutional provisions: No.

Subject: The removal of a baby from its mother at birth by means of an emergency protection order breached both mother and child's rights under Article 8.

Summary of the Decision:

I. Facts of the case

P., born in 1958, is a United States national. C., the husband of P., was born in 1962, and is a British national. S., their daughter, was born in 1998 and is a British and American citizen. They all live in the United Kingdom. In 1985 P. gave birth to B. In 1992 P. and her first husband, B.'s father, separated. In April 1994, the Californian authorities took B. into protective custody, alleging that P. was harming B. by administering laxatives to him inappropriately. On 23 August 1994, the Californian court ordered that B. live with his father. P. was convicted of a misdemeanour under the Californian Penal Code and, on 17 November 1995, was sentenced to three years' probation and ordered to spend three months in custody, which was suspended. On 5 May 1996, the Californian family court approved supervised contact between P. and her son B., once a month for the following three years. During 1996, P. met C., a qualified social worker with a doctorate concerning women wrongly accused of being Münchhausen's Syndrome by Proxy (MSBP) abusers and C. married in September 1997 in the United Kingdom. S. was born on 7 May 1998, at 4.42 a.m. The local authority obtained an emergency protection order at about 10.30 a.m. which placed S. under their care. At about 4 p.m., the social workers took S. from the hospital and placed her with foster parents. Rochdale Metropolitan Borough Council then applied for a care order under the Children Act 1989. In the meantime, P. and C., who were allowed supervised contact with S., developed an excellent relationship with her, according to the supervising officials. Initially P. was legally represented in the care order proceedings. However, on 5 February 1999, her lawyers applied to the judge to withdraw from the proceedings, alleging that P. was requiring them to conduct the case in an unreasonable manner. The judge permitted them to withdraw and allowed P. an adjournment of four days until 9 February 1999, at which point he refused any further adjournment. On 8 March 1999, after a hearing lasting about 20 days involving numerous witnesses, the judge issued a care order placing S. in the care of the local authority, finding that her moral and physical health would be endangered by leaving her with her parents. The Court found that, although P. and C.'s treatment of S. during contact sessions had been exemplary, P. had a personality disorder and C. would not accept that P. was responsible for harming B. After making the care order, the judge fixed the hearing of the application for the freeing of S. for adoption for one week later on 15 March 1999. P. and C. attended the hearing but did not have legal representation. The judge refused the application of P. for the proceedings to be deferred to allow her to obtain legal representation and issued an order freeing S. for adoption without any provision for continued direct contact between S. and her parents. Leave to appeal was refused and S. was adopted on 27 March 2000. The last contact visit between the P., C. and S. was on 21 July 1999.

Complaint under Article 6 upheld. The Court observed that in the light of the complexity of the care proceedings, along with the importance of what was at stake and the highly emotive nature of the subject matter, it was essential that P received legal assistance. The complaints under Article 8 were also upheld. Whilst the Court acknowledged that it had been proper for the local authority in its child protection function to take steps to obtain an emergency protection order, nevertheless the removal of a baby from its mother at birth required exceptional justification. Therefore there had been a breach of Article 8. In the light of its findings under Article 6, the Court concluded that the procedural shortcomings of the care and adoption proceedings also breached the due process element in Article 8. The Court held that no separate issue arose under Article 12.

II. The basic considerations of the case

This judgment gives some new ammunition to parents contesting care and adoption proceedings and creates something of a dilemma for the domestic courts. The question of expedition in family proceedings where young children are involved by definition involve due process difficulties which rebound on the parents. The Court here criticised the domestic courts for failing to give due weight to the fact that the child herself was in successful foster placement and therefore unaffected by the ongoing proceedings. An adjournment of the adoption hearing therefore could have been considered and should have been granted, given the circumstances. However the it is never going to be obvious whether the child involved will be prejudiced by delay or not; it is a matter of degree, and when one adjournment is granted there is no reason in principle why others should not be, and then the whole course of the decision making process which is determinative of the child's future may be ground down by a series of infintisemal delays, none of which, when considered in isolation, would be prejudicial of the child's welfare. The same applies to the making of an emergency care order. Again, with the benefit of hindsight, the Strasbourg Court was able to posulate a less draconian alternative to the immediate removal of the child; that she should have been allowed to remain in the hospital and to spend "at least some time with her mother under supervision". However the local authority had to make a speedy decision in the circumstances of what they knew about P; a woman who had apparently administered laxatives in an "inappropriate" fashion to her previous child, and who was known to be suffering from a psychiatric disorder which prompts sufferes to exaggerate and fabricate illnesses in their children, sometimes resulting in the deliberate infliction of harm on those children. How these misgivings are to be reflected in local authority policy whilst protecting them from the sort of challenge mounted in Z v United Kingdom - where their failure to act amounted to a breach of Article 3 - is not so easy to assimilate either from the W or the instant judgment.

The European Court of Human Rights therefore examines whether it is violation of applicant’s rights to protection of health and the rights and freedoms of others according to article 8 § 2 of European Convention on Human Rights.

Adjudication method: Reference to domestic law of United Kingdom in conjunction with the reference to international law.

Reference to other constitutional courts: No.

Reference to International Law: Articles 6, 8, 12 and 41 of European Convention on Human Rights

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication method and it referred to its former jurisprudence, i.e. Z. v. United Kingdom.

Bibliography: Rosalind English, P, C, S v UK, 1 Crown Office Row, available at: http://www.1cor.com/1315/?form_1155.replyids=575 [accessed 16/07/2002].

Key words: Right to a fair trial, Fair hearing, Access to court, Civil proceedings, Right to respect for private and family life, Respect for family life, Interference, Necessary in a democratic society, Protection of health, Protection of the rights and freedoms of others.

Commentator/contact details: Despina Tziola, Aristotle University of Thessaloniki, Greece, deppytziola@hotmail.com.

IACL Project –Social Rights, Library of Social Rights

Country/Court: European Union/ European Court of Human Rights.

Year of Judgment/ Application No: 2012/ No 57375/08

Related social rights: Right to respect for private and family life / Right to liberty and security.

Constitutional provisions: No.

Subject: The applicants complained that the facts of the case gave rise to a breach of Articles 8, 5 § 1, 3 and 41 of the Convention.

Summary of the Decision:

I. Facts of the case

A fourteen-year-old who became pregnant as a result of rape encountered much difficulty seeking legal abortion. She and her mother were given false information regarding the procedural requirements of obtaining an abortion; pressured by doctors, religious personnel and anti-abortion activists to change their minds; and, denied abortion without receiving referrals by doctors invoking conscientious objection. When an abortion was finally arranged by the government, the procedure took place in a clandestine manner and without proper post-abortion care.

The government of Poland was found to have violated its positive duty to safeguard the respect for the teenager’s and her mother’s private life when it failed to ensure their effective access to legal abortion. The teenager’s right to respect for her private life was further breached when her health and other personal information was unlawfully released to the press by a public hospital. The Court also found a violation of the teenager’s right to liberty when the government placed her under state custody for the primary purpose of preventing the abortion. Considering the teenager’s entire experience, especially having regard to her young age, the Court further held that the government had infringed her right to be free from inhuman or degrading treatment.

II. The basic considerations of the case

Most countries in the European Union allow abortion on demand during the first trimester. After the first trimester, abortion is allowed only under certain circumstances, such as risk to woman's life or health, fetal defects or other specific situations that may be related to the circumstances of the conception or the woman's age. For instance, in Austria, second trimester abortions are allowed only if there is a serious risk to physical health of woman (that cannot be averted by other means); risk to mental health of woman (that cannot be averted by other means); immediate risk to life of woman (that cannot be averted by other means); serious fetal impairment (physical or mental); or if the woman is under 14 years of age. Some countries, such as Denmark, allow abortion after the first trimester for a variety of reasons, including socioeconomic ones, but a woman needs an authorization to have such an abortion.

It should be noted that the access to an abortion in much of Europe depends not as much on the letter of the law, but on the prevailing social views which lead to the interpretation of the laws. For instance, in parts of Europe, laws which allow a second trimester abortion due to mental health concerns (when it is deemed that the woman's psychological health would suffer from the continuation of the pregnancy) have come to be interpreted very liberally, while in other conservative areas it is difficult to have a legal abortion even in the early stages of the pregnancy due to the policy of conscientious objection, under which doctors are allowed to refuse to perform an abortion if it is against their moral or religious convictions.

Most European countries have laws which stipulate that minor girls need their parents' consent or that the parents must be informed of the abortion. In most of these countries however, this rule can be circumvented if a committee agrees that the girl may be posed at risk if her parents find out about the pregnancy, or that otherwise it is in her best interests to not notify her parents.

The European Court of Human Righs has faced another similar case. A, B and C v Ireland is a landmark case of the European Court of Human Rights on the right to privacy under article 8 ECHR. It held there is no right for women to an abortion, although it found that Ireland had violated the Convention by failing to provide an accessible and effective procedure by which a woman can have established whether she qualifies for a legal abortion under current Irish law. The Court held that "Article 8 cannot... be interpreted as conferring a right to abortion". However, in the present case, the Court held that there was violation of article 8, as the government of Poland didn’t safeguard the respect for the teenager’s and her mother’s private life when it failed to ensure their effective access to legal abortion.

The European Court of Human Rights therefore examines whether it is violation of applicant’s right to liberty and security according to article 5 of European Convention on Human Rights.

Adjudication method: Reference to domestic law of Poland in conjunction with the reference to international law.

Reference to other constitutional courts: No.

Reference to International Law: Articles 3, 5, 8 and 41 of European Convention on Human Rights

Bibliography: European Center for Law and Justice, "A. B. C. Irish abortion case: No human right to abortion under the Convention, says the European Court of Human Rights", Press release 16.12.2010.

Key words: Prohibition of torture, Degrading treatment, Inhuman treatment, Right to liberty and security, Deprivation of liberty, Educational supervision, Right to respect for private and family life, Positive obligations, Respect for private life, Prescribed by law

Commentator/contact details: Despina Tziola, Aristotle University of Thessaloniki, Greece, deppytziola@hotmail.com.

IACL Project –Social Rights, Library of Social Rights

Country/Court: European Union/ European Court of Human Rights.

Year of Judgment/ Application No: 2004/ No 21689/93

Related social rights: Right to health / Right to childhood / Right to respect for private and family life.

Constitutional provisions: No.

Subject: Relying on Articles 2, 3, 5 and 8 of the Convention, the applicants complained of the military raid conducted on 20 February 1993 on the village of Ormaniçi and related events, including the death of two children, the taking into detention of the male villagers, the conditions in which these villagers were held in detention, their treatment in detention and the death of one villager in detention. The applicants further alleged a violation of former Article 25 (now Article 34) and former Article 28 of the Convention (now 38).

Summary of the Decision:

I. Facts of the case

The case, which was lodged with the former European Commission of Human Rights by 32 Turkish nationals in April 1993, mainly concerns events which took place in 1993 in the village of Ormaniçi in the Güçlükonak district of the Sirnak province in south-east Turkey. The applicants alleged that, on 20 February 1993, security forces looking for members of the PKK (proscribed as a terrorist organisation under Turkish law) had attacked Ormaniçi, as a result of which two children had died. The applicants further alleged that on the same day the security forces had set fire to houses in Ormaniçi and had taken most of the male villagers into detention. The applicants claimed that these men had been subjected to ill-treatment in detention, resulting in various serious injuries and the death of one villager. According to the Government, security forces had come under fire from the village. No houses had been deliberately burned and nobody had been injured or killed in Ormaniçi on 20 February 1993. Moreover villagers taken into detention had not been ill-treated. The facts being disputed by the parties, the former European Commission of Human Rights appointed Delegates who took evidence in Ankara from 2 to 4 April 1998 and from 5 to 10 October 1998 from 25 applicants, 8 other villager witnesses and 15 officials. The certified transcripts of the oral evidence and the documentary evidence provided by the parties to the Commission were forwarded to the Court, when the case was transmitted to it on 1 November 1999. A full description of the facts as assessed by the Court is to be found in the text of the judgment, which may be consulted on the Court's Internet site.

The Court accepted that, in the circumstances of the present case, the security forces' choice to open intensive fire on Ormaniçi in response to shots fired at them from the village had been "absolutely necessary" for the purpose of protecting life. It followed that there had been no violation of Article 2 in this respect. Furthermore, the Court found that the decision by the security forces to conduct a systematic search of the village, including assembling in the village square all the persons found, could not be regarded, in the circumstances and as such, as amounting to treatment or punishment in violation of Article 3 of the Convention.

II. The basic considerations of the case

In the cases relating to south – eastern Anatolia, where the existence of an armed conflict was disputed, it appears that at least when the Court was faced with a real combat situation, as opposed to a law – enforcement operation, it never took the lives of ‘combatants’ into account when assessing proportionality. In this case, the Court accepted that the Turkish security forces’ tactical reaction to the initial shots fired at them from a nearby village, and consisting in ‘intensive firing, including the use of RPG – 7 missiles and various grenades that were fired at perceived points of fire in the village’, could not be regarded as ‘entailing a disproportionate degree of force’. Even, in Gül, where the Court was arguably faced with a mere law – enforced operation designed to search for alleged terrorists, the decision of the Turkish officers to open fire with automatic weapons, in reaction to the sound of a door bolt being drawn back in the mistaken view that they were about to come under fire by terrorists, was found to be ‘grossly disproportionate’ in view of the fact that the operation took place ‘in a residential block inhabited by innocent civilians, women and children’. Moreover, in this as in the other cases relating to anti – terrorist operations in south – eastern Anatolia, the qualification of the victim as a ‘terrorist’ was at issue. In case, where the Court accepted, despite the absence of a state of emergency, that the situation called for exceptional measures by the state in order to regain control over the region and to ‘suppress the illegal armed insurgency’, the question was always that of the risk posed to the lives of innocent ‘civilians’.

But, even leaving aside the issue of the relevance of life of ‘combatants’ in order to assess proportionality, it could be argued, in addition, that the principle of proportionality is stricter in International Human Rights Law than in International Humanitarian Law, inasmuch as it requires reducing casualties to a minimum, whereas International Humanitarian Law only requires avoiding excessive incidental damage. But, since strict proportionality does not imply that ‘incidental damages’ are not acceptable, this perceived difference appears to be rather relative.

In this case, the Court stated that under Article 2, read in conjunction with Article 1, ECHR, a state’s responsibility may be engaged in all case where state agents ‘fail to take all feasible precautions in the choice of means and methods of a security operation mounted against an opposing group with a view to avoiding and, in any event, to minimizing, incidental loss of civilian life’.

The European Court of Human Rights therefore examines: (1) whether it is violation of applicant’s right to private and family life according to article 8 of European Convention on Human Rights and (2) whether there were tortures in breach of Article 3 of European Convention on Human Rights.

Adjudication method: Reference to domestic law of Turkey in conjunction with the reference to international law.

Reference to other constitutional courts: No.

Reference to International Law: Articles 2, 3, 5, 6, 8, 15, 34, 37, 38 and 41 of European Convention on Human Rights

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication method and it referred to its former jurisprudence, i.e. Akdivar and Others v. Turkey, Aksoy v. Turkey, Aktas v. Turkey etc.

Bibliography: Orna Ben – Naftali (2011), International Humanitarian Law and International Human Rights Law, Oxford, New York: Oxford University Press.

Key words: Right to life, Life, Use of force, Absolutely necessary, Defence from unlawful violence, Positive obligations, Prohibition of torture, Inhuman punishment, Inhuman treatment, Degrading treatment.

Commentator/contact details: Despina Tziola, Aristotle University of Thessaloniki, Greece, deppytziola@hotmail.com.

IACL Project –Social Rights, Library of Social Rights

Country/Court: European Union/ European Court of Human Rights.

Year of Judgment/ Application No: 2005/ No 73316/01.

Related social rights: Prohibition of slavery and forced labour / Protection of childhood.

Constitutional provisions: No.

Subject: Relying on Article 4 (prohibition of forced labour) of the European Convention on Human Rights, the applicant submitted that French criminal law did not afford her sufficient and effective protection against the "servitude" in which she had been held, or at the very least against the "forced and compulsory" labour she had been required to perform, which in practice had made her a domestic slave.

Summary of the Decision:

I. Facts of the case

The victim arrived in France on 26 January 1994, aged 15 years and 7 months, with Mrs D., a French national of Togolese origin. The victim had a passport and a tourist visa. Initially the victim was promised that she would work at Mrs D.’s home until the cost of her air ticket had been reimbursed and that Mrs D. would attend to her immigration status and find her a place at school, though in reality the victim became an unpaid housemaid for Mr and Mrs D. and her passport was taken from her. In the second half of 1994, Mrs D. lent the victim to Mr and Mrs B. and then the victim started working for Mr and Mrs B. The victim worked seven days a week, without a day off, from early morning to late evening. The victim was never paid, except by Mrs B.’s mother, who gave her one or two 500 French franc notes. One day the victim escaped from their house, but she returned as they promised to keep their initial words. However, the situation remained unchanged. One day, the victim reached a neighbour who contacted the police. On 28 July 1998, the police raided Mr and Mrs B.’s home.

The Court held that there has been a violation of Article 4 of the Convention and awarded the applicant 26,209.69 euros (EUR) for costs and expenses. As Ms Siliadin had made no claim for compensation in respect of damage sustained, the Court made no award.

II. The basic considerations of the case

1. a) Considering the case, the Court examined the definitions of the terms «slavery», «servitude» and «forced labour», as contained in the wording of article. It attempted to interpret them, drawing a distinction among various treatments that fall within the scope of each one of the three terms. To define slavery and examine the practices that identify as such, the Court used as a tool the definition of slavery provided in the 1926 Slavery Convention (and article 32 of Convention on the Rights of the Child about child labour). According to article 1, slavery is defined as: «the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised». Interpreting this definition strictu sensu, it used the element of ownership as the sole indication of enslavement. On this basis, it held that the deprivation of personal autonomy does not in itself constitute exercise of the right of ownership and therefore is not enough to determine the status of slavery. Examining the scope of article 4 in relation to the particular facts of the case, it held that the applicant’s treatment fell short of slavery because her perpetrators did not fully exercise upon her the right of ownership. However, the Court acknowledged that the treatment of the victim amounted to servitude, because she was deprived of her autonomy and had been submitted to coercion. Furthermore, the applicant was subsequently forced to work against her will, living in a state of fear due to her illegal status in the country of destination and her young age. Therefore, according to the Court she was also submitted to forced labour.

1. b) Furthermore, the Court stressed that the various provisions of the Convention must be interpreted as a whole in conformity with its object and purpose. Referring to its own jurisprudence, it underlined that the Convention is a “living instrument” and should be “interpreted in the light of present-day conditions”. Thus, taking into account that trafficking in human beings is a severe violation of human rights, the identification of the treatment of a victim of trafficking as slavery or servitude or forced labour was considered “unnecessary”. Notwithstanding the absence of explicit reference to trafficking in human beings in article 4, the Court stressed that “Trafficking itself, within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention, falls within the scope of Article 4 of the Convention.” When defining the content of the states’ obligations, the Court admitted that the standards of human rights protections “require greater firmness in assessing breaches of the fundamental values of democratic societies” stressing the need to broaden its standards of interpretation of the guarantees safeguarded in the Convention. In Rantsev v. Cyprus and Russia, the Court confirmed its ruling in Siliadin v. France on the issue of the states’ positive obligations deriving from article 4.

The European Court of Human Rights therefore examines whether it is a violation of applicant’s right to education according to article 19 of Convention on the Rights of the Child.

Adjudication method: Reference to domestic law of France in conjunction with the reference to international law.

Reference to other constitutional courts: No.

Reference to International Law: Recommendation 1523 (2001) of the Parliamentary Assembly of the Council of Europe, dated 26 June 2001, Articles 2 and 4 of Forced Labour Convention, adopted on 28 June 1930 by the General Conference of the International Labour Organisation, Article 1 of Slavery Convention, signed in Geneva on 25 September 1926, which came into force on 9 March 1927, Article 1 of Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, adopted on 30 April 1956, Articles 19 and 32 of International Convention on the Rights of the Child, dated 20 November 1989.

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication method and it referred to its former jurisprudence, i.e. A. v. the United Kingdom, Airey v. Ireland, Amuur v. France, Association Ekin v. France (dec.), August v. the United Kingdom (dec.) etc.

Bibliography: Kyriazi, T. (2010). A Human Rights Approach to Human Trafficking by the ECtHR - Written for Sustainable Development Group International, Available at: http://www.sdg-int.org/uploads/trafficking-tenia.pdf [Accessed 07/01/2010].

Key words: Prohibition of slavery and forced labour, Positive obligations, Victim, Child, Compulsory labour.

Commentator/contact details: Despina Tziola, Aristotle University of Thessaloniki, Greece, deppytziola@hotmail.com.

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Adjudication method: The European Committee of Social Right examines the case in the light of European Social Rights, as described in the 1961 Charter. Each allegation of violations is examined separately, in order for the Committee to ascertain if there is a violation of the specific Article or not. Furthermore, the Committee examines the two Articles of the Greek Act No. 3863/2010 separately, so as to ensure that each right is protected properly.

Reference to other constitutional courts: No.

Reference to International Law: No.

Relation with former jurisprudence/Innovative elements: The Committee has followed its traditional method. The case underlines the importance of the respect of social rights and the protection of employers, even when the economic circumstances of the State require reduction of those protections. Although the decision is not mandatory for the parties, it is a serious indication that European Union supports and protects social rights, reprobating their violation and pointing out the importance of their protection, especially in a period of economic crisis, when these are mostly needed.

Bibliography: Grainne de Burca, Bruno de Witte, “Social Rights in Europe”.

Key words: Right to work, Right to children and young persons to protection, Right to vocational training, Right to social security, Right to a fair remuneration, Right to non-discrimination, Protection of social rights in economic crisis.

Commentator/contact details: Olga – Eirini Palla, LL.M. International Law, pallaolga@gmail.com.

Country/Institution: Greece/ European Committee of Social Rights.

Year of Judgment/Nr of Decision: 2012/ 66/2011.

Related social rights: Right to work/ Right to children and young persons to protection/ Right to vocational training/ Right to social security/ Right to a fair remuneration/ Right to non-discrimination.

Constitutional provisions: No.

Subject: Application of the European’s social rights legislation on the labour law provisions, concerning lower wages to employers under 25 years old by the Greek Government, in order to integrate younger workers into the labour market in a time of serious economic crisis.

Summary of the Decision:

I. Facts of the case:

Greece has been suffering a severe economic crisis since 2009. Eurogroup Ministers, on 2 May 2010, concurred with the Commission and the European Central Bank to provide a loan to Greece in order to safeguard financial stability in Greece and in Eurozone as a whole. A financial package of 110€ billion was decided in order to help Greece meet its financing needs, with the contribution of the IMF, along with a memorandum, a legal arrangement in a form of a legislative instrument. The loan was provided to Greece as a part of a general agreement related to the decision making in structural issues. The troika, which consists of representatives from the Eurozone, the European Central Bank and the International Monetary Fund, sets the goals that the Greek government has to accomplish in order to disburse each loan installment. Under these circumstances, the Greek Government is obliged to take severe measures, regarding social rights. As a part of a general reconstruction of the labour law, the provision contained in Act No. 3863 of 15 July 2010, introducing “special apprenticeship contracts” between employers and individuals aged 15 to 18 and the provisions concerning the employment of new entrants to the labour market aged under 25 violates basic social rights, according to the applicant, which is the General Federation of employees of the national electric power corporation (GENOP-DEI) and the Confederation of Greek Civil Servants’ Trade Unions (ADEDY).

The European Committee of Social Rights has decided that these provisions do not comply with the requirements following from Article 7.7, 10.2, 12.3 of the 1961 Charter and that there is also a violation of Article 4.1 of the 1961 Charter in the light of the non-discrimination clause of the Preamble to the 1961 Charter.

II. The basic considerations of the case:

1) The Committee recognises that states enjoy a wide margin of appreciation when it comes to the design and implementation of national employment policies, especially when they are under the pressure of economic crisis. Though, the economic crisis should not have as a consequence the reduction of the protection of the rights recognised by the Charter. Hence, governments are bound to take all necessary steps to ensure that the rights of the Charter are effectively guaranteed at a period of time when beneficiaries most need the protection.

2) Apprenticeship is defined by the Committee with Article 10.2 of the 1961 Charter as involving “training based on a contract between the young person and the employer” which is regulated by a body of rules which govern the length of the apprenticeship, the division of time between practical and theoretical learning, the manner in which apprentices are selected, the selection and qualifications of trainers; the remuneration of apprentices; and termination of the apprenticeship contract. Other training arrangements can also be implemented, as long as they combine both theoretical and practical vocational training and maintain close ties between training establishments and the working world. However, that kind of arrangements must be governed by a coherent framework of rules, which regulate the relationship between workplace experience and educational provision.

3) The Committee recognises the necessity and the power of each state to introduce measures to consolidate public finances in times of economic crisis, in order to ensure the maintenance and sustainability of the existing social security system. However, any such measures should not undermine the core framework of a national social security system or deny individuals the opportunity to enjoy the protection it offers against serious social and economic risk. Therefore, any changes to a social security system must maintain a sufficiently extensive system of compulsory social security and refrain from excluding entire categories of worker from the social protection.

4) The Committee considers a wage to be fair, when it is above the state’s poverty line. In addition, in principle a wage must not fall below 60% of the national average wage, unless a state is able to demonstrate that the wage is sufficient for a decent standard of living, by providing, for example, detailed information on the cost of living. However, a net wage which is less than half the net national average wage will be deemed to be unfair. When a national minimum wage exists, its net value is used as a basis for comparison with the net average wage. The yardstick for comparison is otherwise provided by the minimum wage determined by collective agreement.

5) The Committee states that any allegation of discrimination related to the implementation of Article 4.1 of the 1961 Charter can only be read in the light of the non-discrimination clause of the Preamble to the 1961 Charter. With this in mind, the Committee confronts the allegation of a violation of Article 4.1 read in conjunction with Article 1.2 of the 1961 Charter as an allegation of a violation of Article 4.1 read in the light of the Preamble to the 1961 Charter.

Taking in account the fact that Greece is suffering a severe economic crisis, which demands many structural and legal alterations, the Committee could not oversee the fact that this has led to the restriction of some very important social rights.

The Committee has found that Article 74.9 of Act No. 3863/2010, referring to “special apprenticeship contracts” to be concluded between employers and individuals aged 15 to 18, violates Article 7.7 of the 1961 Charter, since young persons are excluded from the scope of the labour legislation and are not entitled to three weeks’ annual holiday with pay. It also violates Article 10.2 of the 1961 Charter, since it does not provide for an adequate system of apprenticeship and other systematic arrangements for training young boys and girls in their various forms of employment. Moreover, the Committee considers that the highly limited protection against social and economic risks afforded to minors engaged in “special apprenticeship contracts” under Article 74.9 of Act No. 3863/2010 has the practical effect of establishing a distinct category of workers who are effectively excluded from the general range of protection offered by the social security system at large and that this represents a deterioration of the social security scheme which does not fulfil the criteria to be compatible with Article 12.3 of the 1961 Charter.

In addition, Article 74.8 of Act No. 3863/2010, regarding the fair remuneration, violates, according to the Committee, Article 4.1 of the 1961 Charter insofar as it provides for the payment of a minimum wage to all workers below the age of 25, which is below the poverty level. On the discrimination’s perspective, the Committee holds that there is a violation of Article 4.1 of the 1961 Charter in the light of the non-discrimination clause of the Preamble to the 1961 Charter. The Committee acknowledges that the less favourable treatment of younger workers at issue is designed by the Greek government, in order to give effect to a legitimate aim of employment policy, namely to integrate younger workers into the labour market in a time of serious economic crisis. However, the extent of the reduction in the minimum wage, and the manner in which it is applied to all workers under the age of 25, is disproportionate, even when taking into account the particular economic circumstances in question.

Reference to other constitutional courts: No.

Reference to International Law: No.

Bibliography: Grainne de Burca, Bruno de Witte, “Social Rights in Europe”.

Key words: Right to work, Right to children and young persons to protection, Right to vocational training, Right to social security, Right to a fair remuneration, Right to non-discrimination, Protection of social rights in economic crisis.

Commentator/contact details: Olga – Eirini Palla, LL.M. International Law, pallaolga@gmail.com.

IACL Project –Social Rights, Library of Social Rights

Country/Court: Greece/European Court of Human Rights, Grand Chamber.

Year of Judgment/Nr of Decision: 2011/ 42202/07.

Related social rights: Right to vote/ Right to free expression of the people.

Constitutional provisions: Articles 1.1, 51.4 of Greek Constitution.

European provisions: Article 3 of Protocol No. 1.

Subject: The obligation of the European States to provide the necessary means in order to ensure the implementation of the right to vote in the national elections to their expatriates.

Summary of the Decision:

I. Facts of the case:

The applicants are two Greek expatriates, who live and work permanently in France. Before the Greek parliamentary elections in 16^th of September 2007, the applicants contacted the Greek Ambassador, in order to exercise their right to vote in the forthcoming parliamentary elections from France. The Greek Ministry of Interior replied that, although the Greek government would like to permit them to vote, that was not possible, because there were no such rules laying down the conditions governing the exercise of voting rights by Greek voters that live abroad. The applicants eventually did not exercise their right to vote, since they did not travel to Greece for the elections and it was impossible for them to vote from their residence.

The Chamber, in the first place, decided that Greece violated Article 3 of Protocol No 1, based on the fact that, although the right to vote for the Greeks who live abroad is properly constitutionally protected in Article 51.4, the Greek Government should have enacted legislation giving practical effect to voting rights for expatriates. The non-legislation was likely to constitute unfair treatment of Greek citizens living abroad, in comparison with those living in Greece, despite the fact that the Council of Europe had urged member States to enable their citizens living abroad to participate to the fullest extent possible to the electoral process.

The Grand Chamber, on the other hand, decided that there was actually no violation of Article 3 of Protocol No 1.

II. The basic consideration of the case:

1a) Article 3 of the Protocol No. 1 is of great importance, because it faces the right to vote not only from the right of freedom’s perspective, but from the right of free expression of opinion of people’s perspective, as well. The article provides a wide range of choices, as far as the election procedures and the electoral system that each member State wishes to implement. It is for the Court, though, to examine, if this specific system meets the criteria of “free elections” held at “reasonable intervals” “by secret ballot” and “under conditions that will ensure the free expression of opinion of the people”. In the context of Article 3 of Protocol No.1, the primary obligation of the State is not one of abstention or non-interference, as with the majority of civil and political rights, but one of the adoption of positive measures (positive right) to “hold” democratic elections.

1b) As far as the right to vote for the expatriates is concerned, the Court has stated that, although the institutions of Council of Europe invite their member States to enable their citizens living abroad to participate to the fullest extent possible to the electoral process, this may be subject to some restrictions, justified by several factors: the fact that the expatriates are not aware of the day to day problems of their home country, the fact that the non-residence citizens have less influence on the election candidates and their programmes, the fact that they decide for issues that will not be implemented on them and the legitimate concern that the State may have to limit the impact of the expatiates choice on the elections, especially when the number of the citizens living abroad is considerable large, compared to the citizens living in the State.

The Grand Chamber examines the case in the light of the broader question as to whether Article 3 of Protocol No. 1 places States under the obligation to introduce a system enabling expatriate citizens to exercise their voting rights from abroad.

The Court states that the complaint does not concern the recognition of expatriates’ right to vote. This right is sufficiently recognised and protected in Article 51.4 of the Greek Constitution in conjunction with Article 4 of Presidential Decree no. 96/2007. In order to examine whether Article 3 of Protocol No. 1 requires the implementation of measures to allow expatriates to exercise their right to vote from their place of residence, the article should be interpreted with reference to the relevant international and comparative law and to the domestic law of the country concerned. None of the above mentioned legal instruments states that States are under an obligation to enable citizens living abroad to exercise the right to vote. Furthermore, the constitutional provision of Article 51.4 allows the legislature to enable the exercise of the expatriates’ voting right, but it does not oblige it to do so. Greek authorities have made several attempts to give effect to Article 51.4 of the Greek Constitution, but they never manage to succeed it.

The Court holds that the very essence of expatiates’ voting rights guaranteed in Article 3 of Protocol No. 1 has remained untouched.

Adjudication method: Reference to the Article 3 of Protocol No. 1 and interpretation in the light of International Law, Comparative Law and Greek Law.

Reference to other constitutional courts: No.

Reference to International Law: Yes. Texts adopted by the Parliamentary Assembly of the Council of Europe {Resolution 1459 (2005) of the Parliamentary Assembly of the Council of Europe, Recommendation 1714 (2005) of the Parliamentary Assembly of the Council of Europe – Abolition of restrictions on the right to vote}, texts adopted by the European Commission for Democracy through Law (“the Venice Commission”) {Code of Good Practice in Electoral Matters (Opinion no. 190/2002), 2006 report on electoral law and electoral administration in Europe (Study no. 352/2005), 2010 report on out-of-country voting (Study no. 580/2010)}, International Covenant on Civil and Political Rights, American Convention on Human Rights, Human rights protection system based on the African Charter.

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication method. However, it did diversify itself from the previous judge of the Chamber.

Bibliography: Lourdes Peroni, Expatriates’ Voting Rights: Greece below Common Denominator, http://strasbourgobservers.com/2010/07/14/expatriates%E2%80%99-voting-rights-greece-below-common-denominator/.

Key words: Right to vote, Right to free expression of opinion of people, expatriates’ vote.

Commentator/contact details: Olga – Eirini Palla, LL.M. International Law, pallaolga@gmail.com.

IACL Project –Social Rights, Library of Social Rights

Country/Court: Denmark/European Court of Human Rights, Chamber.

Year of Judgment/Nr of Decision: 2011/ 38058/09.

Related social rights: Respect for family life/ Respect for private life.

Constitutional provisions: Article 63 of Danish Constitution.

European provisions: Article 8 of Convention.

Subject: The obligation of the European States to provide the necessary means in order to ensure the protection of the minors’ family and private life, regarding their right to renew their residence permit, which they lost because they had been sent abroad by their parents, against their will.

Summary of the Decision:

I. Facts of the case:

At the age of fifteen the applicant, a Somali girl who had been living with her parents and siblings in Denmark since the age of seven, was sent against her will to a refugee camp in Kenya by her father to take care of her paternal grandmother. Two years later, when still a minor, she applied to be reunited with her family in Denmark, but her application was turned down by Danish immigration on the grounds that her residence permit had lapsed as she had been absent from Denmark for more than twelve consecutive months. She was not entitled to a new residence permit as, following a change in the law that had been introduced to deter immigrant parents from sending their adolescent children to their countries of origin to receive a more traditional upbringing, only children below the age of 15, instead of 18, could apply for family reunification. The immigration authority also considered that no special circumstances existed in her case, as she had not seen her mother for four years, her mother had agreed to her being sent to Kenya and she could continue to live in Kenya with her grandmother or her grandmother’s family.

The Chamber decided that there was a violation of Article 8 of the Convention and that the Danish Government should provide the applicant with a residence permit, as well as with EUR 15,000 in respect of non-pecuniary damage.

II. The basic considerations of the case:

1a) The essential object of Article 8 of the Convention is to protect the individual against arbitrary action by the public authorities. In the light of respect for the individual’s family and personal life, the State must strike a fair balance between the competing interests of the individual and of the community as a whole. The State’s obligation can be stated either as a positive or as a negative obligation. However, in a case which concerns family life as well as immigration, the extent of the state’s obligation to admit to its territory relatives of persons residing there can vary according to the particular circumstances of the persons involved and the general interest. Though, as the Court reiterates, for a sellted migrant, who has lawfully spent all or a major part of his or her childhood and youth in a host country, very serious reasons are required to justify expulsion. Furthermore, the Court has accepted in a number of cases concerning young adults who had not yet founded a family on their own, that their relationship with their parents and other family members constitutes “family life”.

1b) The Danish Aliens Act was amended with effect from 1 July 2004. The amendment of the Danish Aliens Act, limiting the right to family reunification to children under 15 years instead of under 18 years, specifically to discourage the practice of some parents of sending their children on “re-upbringing trips” for extended periods of time in order to be “re-educated” in a manner that their parents consider more consistent with their ethnic origins, as it was preferable in the legislator’s view for foreign minors living in Denmark to arrive as early as possible and spend as many of their formative years as possible in Denmark, is accessible and foreseeable by the Court, as it pursues a legitimate aim.

The Court examines whether, in the circumstances of the present case, the Denmark’s authorities’ refusal to reinstate applicant’s residence permit was proportionate to the aim pursued by the Aliens Act amendment and “necessary in a democratic society”. The Court observes that the applicant had social, cultural and family ties in Denmark, since she spent the formative years of her childhood and youth in Denmark, she speaks Danish and received schooling in Denmark and her divorced parents and all her siblings reside in Denmark. The Court agrees with the Danish authorities that the exercise of parental rights constituted a fundamental element of family life and that the care and upbringing of children normally and necessarily required that the parents decide where the child should live. It states, though, that the fact that the applicant was sent to Kenya by her father against her will and not by her best interest is not to be ignored, especially regarding the right to respect for her private and family life. Moreover, according to the Court, the fact that the applicant had very limited contact with her mother over a four-year period could be explained by various factors, including practical and financial constraints, and could hardly lead to the conclusion that they did not wish to maintain or intensify their family life together. Lastly, the Court notes that the legislative amendment, that had reduced the age of entitlement to family reunification from 18 to 15 years, could not be foreseeable by the applicant or her parents when the decision to send the applicant to Kenya was taken or when her residence permit expired. In these circumstances, it could not be said that the applicant’s interests had been sufficiently taken into account or balanced fairly against the State’s interest in controlling immigration and therefore there is a violation of Article 8 of the Convention.

Adjudication method: Reference to the Article 8 of Convention and interpretation in the light of European and Danish Law.

Reference to other constitutional courts: No.

Reference to International Law: No.

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication method. The case underlines the importance of the respect of family life and the protection of the minors’ best interest against the State’s interest in controlling immigration.

Bibliography: Randall Hansen, Patrick Weil, “Towards A European Nationality: Citizenship, Immigration and Nationality Law in the EU”,

Key words: Respect of family life, Respect of personal life, Residence permit.

Commentator/contact details: Olga – Eirini Palla, LL.M. International Law, pallaolga@gmail.com.

IACL Project –Social Rights, Library of Social Rights

Country/Court: Portugal/ Tribunal Constitucional de Portugal.

Year of Judgment/ Nr of Decision: 2012/ 353/2012.

Related social rights: Right to equal payment, principle of legitimate expectations, principle of proportionality, the principle of equality in the distribution of public burdens, the principle of solidarity between generations.

Constitutional provisions: Article 13 and 281 of the Portuguese Constitution.

Subject: The deferred payment of Christmas’ gifts and holiday bonuses or benefits corresponding to the 13th and 14th salary under the provisions 21 and 25 of the Law of 30 December 64-B/2011 (Portuguese State Budget of 2012) is hereby declared to be contrary to the principle of equality the allocation of burdens under Article 13 of the Constitution of the Portuguese Republic.

Summary of the Decision:

I. Facts of the case

A group of Members of the Portuguese Parliamentary brought constitutional action under Article 281 paragraph 2. Portuguese Constitution of 1976, seeking a declaration of unconstitutionality of Articles 21 and 25 of the Law of 30 December 64-B/2011 (state budget of 2012) regarding the issue of suspension of payment of Christmas gifts and holiday allowances and general benefits corresponding to the 13th and 14th salary, for a number of reasons. First, because of measure’s opposition to the legitimate expectations of the citizens, which derives from Article 2 of the Portuguese Constitution and enshrined the principle of democratic rule of law. Second, because of the violation of the principle of equality in the distribution of public burdens in accordance with Article 13 of the Portuguese Constitution. Thirdly and fourthly, because of the violation of the principle of proportionality and the right to social security (Articles 2, 18, 19, 266, 272 and 63 of the Portuguese Constitution).

The Tribunal Constitucional de Portugal declared unconstitutional for violating the principle of equality under Article 13 of the Portuguese Constitution, the rules contained in Articles 21 and 25 of the Act. 64-B/2011 of December 30 (Budget for 2012). Moreover, pursuant to Article 282 para. 4 of the Constitution of the Portuguese Republic, determined that the effect of this declaration of unconstitutionality shall not apply to the suspension of payment of the gift of Christmas and vacation bonuses, or any corresponding benefits in wages correspond 13th and 14th months of the year 2012.

II. The basic considerations of the case

1. a) The sentence starts saying something obvious, but perhaps little noticed by those who contemplate such measures: the bonuses are tied to compensation paid work, integrating the annual remuneration. Deemed or not less punitive than a percentage reduction of monthly remuneration, as had occurred previously in the Finance Act, 2011, held in 2012, the fact is that such suspension or reduction, as appropriate, is a decrease of livelihoods of those affected by such measures. In addressing the objection of unconstitutionality made by the applicants arguing a violation of the principle of equality of Article 13 of the Constitution, the Constitutional Court of Portugal (TPC) points out that the principle of equality in the distribution of public burdens, while that expression of the principle of equality, should be considered when the legislature decides to reduce the public deficit to safeguard the solvency of the State. Interestingly, the perspective adopted by the TPC to consider the consequences that flow from that principle of equality in the distribution of public burdens, which obviously cannot be considered a constitutional proclamation empty of content, which would happen if the legislature had full freedom to decide who and how much are the citizens who must bear these burdens, whether they cannot discuss the existence of a financial emergency. Moreover, in the case before the TCP, it is a way for the principle of equal force deployment that provides the supreme rule in the budget document. Indeed, analysing the TPC if the sacrifice that is set for this group is justified from the perspective of equality of distribution of public burdens, cautions that the biggest argument "average wages" in relation to private sector workers, not is correct from this farmed game (invalid simply compared average by sector, the measure was set according to individual compensation), or justify the special sacrifice imposed on those affected, also taking into account the different types of work and functions exercised, in the public sector are not necessary same as in the private sector.

1. b) Furthermore, TPC says the inequality justified by the difference in situations not immune to a judgment of proportionality, since legal equality is always proportional equality. Whereas the reduction of annual remuneration determined by such measures may be up to 14.3%, its duration, and the cumulative effect that they have given the salary reduction for this group occurred in 2011, and the freezing of remuneration produced in 2010, 2011 and 2012, with the loss of purchasing power due to inflation, the TCP considers evident that exceeds the aforementioned without imposing sacrifices that have analysed the equivalent to the generality of citizens receive income from other sources, regardless of their studs. For TPC differential treatment is so intense that limits proportional equality. Beyond the decision of the appeal that it is discussed, the judgment is relevant because it applies constitutional principles and parameters that can hardly have a different understanding in other countries, like Spain, are adopting similar measures. In any case, we should consider urgently the crisis that is leading to such measures as burdensome for public employees has not been caused by this group, which cannot be the solution. It is worth reflecting on the reasons that led to it has been seen as something natural, that public officials end up being more identified victims of a situation they did not create.

Adjudication method: Reference to constitutional rules in conjunction with the principle of legitimate expectations, principle of proportionality, the principle of equality in the distribution of public burdens and the principle of solidarity between generations.

Reference to other constitutional courts: No.

Reference to International Law: No.

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication method without reference to former jurisprudence, but with detailing reference to judges’ opinions.

Bibliography: Mª Elena Pérez Ruiz y Grisel Galiano Maritan, Los planes del ordenamiento territorial y urbanismo. Principales consideraciones sobre su naturaleza juridical, Aletheia Cuadernos Criticos Del Derecho, 2012.1.

Key words: Principle of legitimate expectations, principle of proportionality, the principle of equality in the distribution of public burdens, the principle of solidarity between generations.

Commentator/contact details: Despina Tziola, Aristotle University of Thessaloniki, Greece, deppytziola@hotmail.com.

IACL Project –Social Rights, Library of Social Rights

Country/Court: European Union/ European Court of Human Rights.

Year of Judgment/ Application Nos: 2012/ Nos. 43370/04, 8252/05 and 18454/06.

Related social rights: Right to education.

Constitutional provisions: Article 12 of MRT Constitution.

Subject: The applicants in this case are a group of Moldovan nationals - children of school-going age, their parents and teachers - who suffered serious human rights violations in Transdniestria, part of the territory of the Moldovan state and under the de facto control of the Russian-supported local administration known as the Moldovan Republic of Transdniestria (MRT).

Summary of the Decision:

I. Facts of the case

According to Article 12 of the Moldavian Republic of Transdniestria (MRT) “Constitution”, the official languages within the MRT are “Moldavian”, Russian and Ukrainian. Article 6 of the “MRT Law on languages”, which was adopted on 8 September 1992, states that, for all purposes, “Moldavian” must be written with the Cyrillic alphabet. On 18 August 1994 the “MRT” authorities forbade the use of the Latin script in schools. By a decision of 21 May 1999, the “MRT” ordered that all schools belonging to “foreign States” and functioning on “its” territory had to register with the “MRT” authorities, failing which they would not be recognised and would be deprived of their rights. On 14 July 2004 the “MRT” authorities began taking steps to close down all schools using the Latin script. At the date of adoption of the admissibility decision, there remained only six schools in Transdniestria using the Moldovan/Romanian language and the Latin script.

The European Court of Human Rights held that the facts complained of by the applicants fall within the jurisdiction of the Republic of Moldova and the jurisdiction of the Russian Federation, and dismisses the Russian Federation’s preliminary objection; that there has been no violation of Article 2 of Protocol No. 1 to the Convention in respect of the Republic of Moldova; that there has been a violation of Article 2 of Protocol No. 1 to the Convention in respect of the Russian Federation; that it is not necessary to examine separately the applicants’ complaints under Article 8 of the Convention; that it is not necessary to examine separately the applicants’ complaints under Article 14 of the Convention, taken in conjunction with either Article 2 of Protocol No. 1 or Article 8.

II. The basic considerations of the case

1. a) According to the Article 2 of the First Protocol of European Convention of Human Rights “no one can be denied the right to education”. This encompasses a right: to an effective education (that is adequate and appropriate); to access to existing educational institutions; to be educated in the national language; and to obtain official recognition when studies have been completed. This does not require the State to establish new types of education, rather it gives individuals a right to access educational facilities that already exist. This does not require the State to establish new types of education, rather it gives individuals a right to access educational facilities that already exist. If a pupil is excluded from school the exclusion must be both necessary and proportionate. The right extends to primary, secondary as well as higher education. The right belongs to the student, who must not be denied the right to education (and not their parent). The right to education includes a freedom to set up private schools, but this freedom is subject to regulation by the State to ensure there is a proper educational system, and does not include a right to subsidies for providing that education. In this case the applicants complained that the prohibition of Latin script is a violation of their right to education. However, this aspect is not one of the cases of Article 2. At this point, neither the corresponding parents’ right is protected.

1. b) Another serious issue is the matter of jurisdiction. It is noteworthy that a public international law issue is the stepping stone of the decision about right of education. Especially, the question of succession of states is the major problem in this case. Succession may refer to the transfer of rights, obligations, and/or property from a previously well-established prior state (the predecessor state) to the new one (the successor state). Transfer of rights, obligations, and property can include overseas assets, participation in treaties, membership in international organizations, and debts. Often a state chooses piecemeal whether or not it wants to be considered the successor state. A special case arises, however, when the predecessor state was signatory to a human rights treaty, since it would be desirable to hold the successor state accountable to the terms of that treaty, regardless of the successor state's desires. A difficulty arises at the dissolution of a larger territory into a number of independent states. Of course, each of those states will be subject to the international obligations that bound their predecessor. What may become a matter of contention, however, is a situation where one successor state seeks either to continue to be recognised under the same federal name of that of its predecessor or to assume the privileged position in international organisations held by the preceding federation. In the above case, Moldovan schools were first established in Transnistria after the 1924 formation of the Moldovan Autonomous Soviet Socialist Republic, which was part of the Soviet Republic of Ukraine. In 1940 the former Moldovan Autonomous Republic was split, 8 districts were included in the Soviet Socialist Republic of Ukraine and 6 districts were joined with part of Basarabia in the Soviet Socialist Republic of Moldavia. In the Ukrainian part of the former Moldavian autonomy Moldovan schools were transformed into Russian-language schools, but in the 6 districts that remained part of the Soviet Socialist Republic of Moldova a Moldovan-language network of schools was kept. However, according to the Court, the facts complained of by the applicants fall within the jurisdiction of the Republic of Moldova and the jurisdiction of the Russian Federation.

The European Court of Human Rights therefore examines whether it should examine a violation of private and family life under Article 8 of the Convention.

Adjudication method: Reference to domestic law of Moldavian Republic in conjunction with the reference to international law.

Reference to other constitutional courts: No.

Reference to International Law: Protocol 1 of European Convention of Human Rights, Annual Report for 2004 of the Organisation for Security and Co-operation in Europe, Universal Declaration of Human Rights, Convention against Discrimination in Education, International Covenant on Economic, Social and Cultural Rights, International Convention on the Elimination of All Forms of Racial Discrimination, Convention on the Rights of the Child

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication method and it referred to its former jurisprudence, i.e. Al-Adsani v. the United Kingdom, Artico v. Italy, Assanidze v. Georgia, etc.

Bibliography: Liberty – Protecting Civil Liberties Promoting Human Rights, Article 2 of the First Protocol: Right to Education, Available at:

http://www.liberty-human-rights.org.uk/human-rights/human-rights/the-human-rights-act/what-the-rights-mean/article-2-of-the-first-protocol-right-to-education.php [Accessed at 15 October 2012] ∙ “Succession of states”, Available at: http://en.wikipedia.org/wiki/Succession_of_states [Accessed at 13 October 2012].

Key words: Right of education, jurisdiction, succession of states

Commentator/contact details: Despina Tziola, Aristotle University of Thessaloniki, Greece, deppytziola@hotmail.com.

IACL Project –Social Rights, Library of Social Rights

Country/Court: European Union/ European Court of Human Rights.

Year of Judgment/App No: 2012/ 1484/07.

Related social rights: Right to liberty and security / Right to a fair trial / Freedom of expression / Freedom of assembly and association.

Constitutional provisions: No.

Subject: The applicants complained that their arrest, conviction for breach of public order and contempt of court, and subsequent punishment by deprivation of liberty, had been unlawful and unfair, in breach of Article 5 § 1 (right to liberty and security) and Article 6 §§ 1 and 3 (c) (right to a fair trial). They further complained that their arrest and detention had violated their rights under in particular Articles 10 (freedom of expression) and 11 (freedom of assembly and association). Finally, relying on Article 2 of Protocol No. 7 (right of appeal in criminal matters), they complained that they had had no right of appeal against their conviction.

Summary of the Decision:

I. Facts of the case

The NGO ‘Equality Institute’ monitors the penal and law-enforcement authorities and promotes the independence of the judiciary in Georgia. In June 2006, the Equality Institute held a demonstration outside the Tbilisi Court of Appeal to express support for Shalva Ramishvili and Davit Kokhreidze, who were on trial for conspiracy to commit extortion, after they were blackmailed to not air a documentary which had negative implications for a parliamentarian from the presidential political party. The demonstrators, using a megaphone, chanted slogans such as “we should not have political prisoners in Georgia”. They were then restrained by force by court bailiffs and arrested for ‘breaching public order’ for ‘contempt of court, insults, disregard of the bailiffs’ lawful orders to stop the wrongdoing.’ The President of the Tbilisi Court of Appeal sentenced them to thirty days’ detention, on the basis of the bailiffs’ statements alone and without an oral hearing. Attempts to appeal to the Supreme Court proved ineffective in securing their release.

The European Court of Human Rights found Georgia to have violated the right to liberty, fair trial and freedom of assembly in respect of five members of the NGO ‘Equality Institute’, who were detained following a demonstration in 2006. The Court found breaches of Articles 5, 6, 11 and Article 2 of Protocol 7 and awarded the applicants 3,000 EUR each in damages.

II. The basic considerations of the case

1. a) According to article 5 § 1 of the European Convention on Human Rights: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law…”. Paragraph 1 of Article 5 of the European Convention on Human Rights points to there being a presumption that everyone should enjoy liberty and that, therefore, a person can only be deprived of it in exceptional circumstances. Furthermore, the presumption in favour of liberty is underlined by the imperative requirement under Article 5 to ensure that liberty should both be lost for no longer than is absolutely necessary and be capable of being readily recovered where such loss is not justified. However, there is a clear burden of proof on those who have taken away someone’s liberty to establish not only that the power under which it occurred falls within one of the grounds specified in Article 5 but also that its exercise was applicable to the particular situation in which it was used.

1. b) According to article 6 §§ 1 and 3 (c): “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly, but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.” And “3. (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require”. Article 6(1) applies both to cases involving ‘civil rights and obligations’ and to criminal cases. Through a series of judgments, the European Court of Human Rights has interpreted civil rights and obligations as including areas such as family law, employment law and commercial law. The principles contained in Article 6(1) may also apply to certain cases involving the relationship between the individual and the state, especially disputes involving money and property. Moreover, the rights guaranteed in Article 6(3)(c) is an important element of defence rights. It contains three distinct elements, namely: the right to defend oneself in person, the possibility in certain circumstances to choose a lawyer, and the right to free legal assistance where he has insufficient means and where the interests of justice so require. However, the majority of cases that have come before the Court concern mostly the opposite situation, that is where an accused or defendant is required to defend himself in person or is refused free legal assistance for a substantive part or the whole of the criminal proceedings.

The European Court of Human Rights therefore examines: (1) whether it is violation of freedom of expression; (2) whether it is violation of freedom of assembly and association; and finally (3) whether it is violation of right of appeal in criminal matters.

Adjudication method: Reference to domestic law of Georgia in conjunction with the reference to international law.

Reference to other constitutional courts: No.

Reference to International Law: Articles 5, 6, 11, 35 and 41 of European Convention of Human Rights.

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication method. It referred to former jurisprudence, i.e. Altug Taner Akçam v. Turkey, Amann v. Switzerland [GC], Assanidze v. Georgia [GC], Baranowski v. Poland, etc.

Bibliography: Macovei M., A guide to the implementation of Article 5 of the European Convention on Human Rights, Human rights handbooks, No. 5, 2004, Available at: http://echr.coe.int/NR/rdonlyres/D7297F8F-88DB-42B0-A831-FB4D1223164A/0/DG2ENHRHAND052004.pdf [accessed December 2004] ∙ Human Rights Review 2012, Article 6: The right to a fair trial, Available at: http://www.equalityhumanrights.com/uploaded_files/humanrights/hrr_article_6.pdf [accessed 21 May 2012] ∙ Interights Manual for Lawyers, Right to a fair trial under the European Convention on Human Rights (article 6), Available at: www.interights.org [accessed 7 September 2009].

Key words: Right to liberty and security, Right to a fair trial, Freedom of assembly and association, Freedom of peaceful assembly.

Commentator/contact details: Despina Tziola, Aristotle University of Thessaloniki, Greece, deppytziola@hotmail.com.

IACL Project –Social Rights, Library of Social Rights

Country/Court: European Union/ European Court of Human Rights.

Year of Judgment/ Application No: 2012/ No 29723/11.

Related social rights: Freedom of expression/ Freedom of assembly and association.

Constitutional provisions: Articles 59 and 60 of the Hungarian Constitution.

Subject: The applicant complained under Article 10 of the Convention that her conviction for some statements she had published on the Internet had amounted to a breach of her right to freedom of expression, especially in view of the fact that she could not prove the truth about the impugned allegations.

Summary of the Decision:

I. Facts of the case

The applicant, a retired senior police officer, was at the material time the chairperson of Tettrekész Police Trade Union. Between May 2007 and July 2009 she published a number of writings on the Trade Union’s website, which was effectively under her editorial control, concerning outstanding remunerations due to police staff, alleged nepotism and undue political influence in the force, as well as dubious qualifications of senior police staff. On 29 April 2010 the Military Bench of the Budapest Regional Court found her guilty as charged and sentenced her to a fine and demotion. The court did not sustain the applicant’s defence according to which the publication of such allegations belonged to the core of a trade union’s activities. On 8 December 2010 the Military Bench of the Budapest Court of Appeal upheld the applicant’s conviction under section 357 of the Criminal Code.

The Court declared unanimously the complaint concerning Article 10 admissible and the remainder of the application inadmissible and held by six votes to one that there has been no violation of Article 10 read in the light of Article 11 of the Convention.

II. The basic considerations of the case

1. a) According to article 10 of the European Convention on Human Rights: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” In the context of effective political democracy and respect for human rights mentioned in the Preamble to the Convention, freedom of expression is not only important in its own right, but also it plays a central part in the protection of other rights under the Convention. Without a broad guarantee of the right to freedom of expression protected by independent and impartial courts, there is no free country, there is no democracy. This general proposition is undeniable. However, the right to freedom of expression in Article 10 is not absolute. Interferences with the right to freedom of expression may be permitted if they are prescribed by law, pursue a legitimate aim and are necessary in a democratic society, that is, satisfy a pressing social need. The legitimate purposes for which freedom of expression can be limited are:

National security, territorial integrity or public safety.
The prevention of disorder or crime.
The protection of health or morals.
The protection of the reputation or rights of others.
The prevention of the disclosure of information received in confidence.
For maintaining the authority and impartiality of the judiciary.

1. b) Furthermore, according to article 11 of the European Convention on Human Rights: “1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State”. Article 11 is one of the foundations of a democratic society. Article 11 provides that everyone has the right to freedom of peaceful assembly and freedom of association with others. The right to freedom of peaceful assembly means the right to protest in a peaceful way, and includes static protests, parades, processions, demonstrations and rallies. The right to freedom of association protects the right to join or form ‘associations’, such as political parties, as well as the right to form and join a trade union. Article 11 imposes two different types of obligations on the state: a) a negative obligation, which means that public authorities must not prevent, hinder or restrict peaceful assembly except to the extent allowed by Article 11(2), and must not arbitrarily interfere with the right to freedom of association, b) a positive obligation, so that in certain circumstances public authorities are under a duty to take reasonable steps to protect those who want to exercise their right to peaceful assembly. The state must also take reasonable and appropriate measures to secure the right to freedom of association under domestic law. Article 11 is intrinsically linked to the right to freedom of expression (Article 10), as in this case. However, the Court notes that, in some statements published on the website under her effective editorial control, the applicant brought up labour issues, such as outstanding remunerations, which concerned servicemen including trade union members. For the Court, these latter views overstepped the mandate of a trade union leader, because they are not at all related to the protection of labour-related interests of trade union members.

The European Court of Human Rights therefore examines whether the proceedings had not been fair under Articles 6, 13 and 17 of the Convention. However, there was no appearance that the domestic courts lacked impartiality or that the proceedings were otherwise unfair or arbitrary.

Adjudication method: Reference to domestic law of Hungary in conjunction with the reference to international law.

Reference to other constitutional courts: No.

Reference to International Law: Articles 10, 11 and 35 of European Convention of Human Rights.

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication method and it referred to its former jurisprudence, i.e. Ceylan v. Turkey, Chauvy and Others v. France, Csánics v. Hungary, Demir and Baykara v. Turkey, Engel and Others v. the Netherlands, García Ruiz v. Spain etc.

Bibliography: Macovei M., A guide to the implementation of Article 10 of the European Convention on Human Rights, 2nd edition, Human rights handbooks, No. 2, 2004, Available at: http://www.unhcr.org/refworld/docid/49f17f3a2.html [accessed 14 October 2012] ∙ Human Rights Review 2012, Article 11: Freedom of assembly and association,

Key words: Freedom of expression, Freedom of assembly and association, Admissibility criteria, Margin of appreciation, Proportionality.

Commentator/contact details: Despina Tziola, Aristotle University of Thessaloniki, Greece, deppytziola@hotmail.com.

IACL Project –Social Rights, Library of Social Rights

Country/Court: European Union/ European Court of Human Rights.

Year of Judgment/ App. No: 2012/ 41526/10.

Related social rights: Right to respect for private and family life/ Right to an effective remedy.

Constitutional provisions: Articles 14, 21, 23, 35 and 140 of the Constitution of the Republic of Croatia.

Subject: The failure of the Croatian State to prevent the persistent harassment of a severely disabled young man was a breach of his Article 3 ECHR right not to be subjected to torture, inhuman or degrading treatment or punishment.

Summary of the Decision:

I. Facts of the case

In this case the victims were Dalibor Đorđević (the first applicant) a man with both learning and physical disabilities in his mid-30’s who suffered a sustained program of abuse and harassment at the hands of children attending a school some 70m from his home and his mother Radmila Đorđević (the second applicant) who was also his carer. The harassment persisted for a period of at least four years, but most of the incidents were more insidious concerning the first applicant’s disability and nationality (both applicants are Serbian). His mother also suffered considerable disruption to her life in her efforts both to care for her son and to ensure a safe environment for him. The second applicant repeatedly complained first to the police, and then to the Ombudswoman for Persons with Disabilities, social services and the school authorities. The harassment persisted for at least two more years. In that time the actual pool of perpetrators changed. The police continued to come out when called and move on the children causing trouble. But no systematic action was taken to tackle the harassment despite the fact the authorities were well aware that the applicants were suffering daily abuse.

In its judgment the Court first held that the violence and continuous threat of violence that the first applicant had suffered could in principle meet the minimum level of severity necessary to amount to a violation of Article 3 – the right to freedom from torture, inhuman and degrading treatment. And that with regard to the second applicant the harassment, whilst not threatening her physical integrity, had disrupted her daily life to the extent necessary to amount to a potential violation of Article 8 – the right to respect for private and family life. It then considered whether the applicants had exhausted all domestic remedies and concluded that in all practical senses they had, since the criminal justice system offered no protection at all, and the civil measures available to the applicants did not allow for interim relief which would protect them from harassment.

II. The basic considerations of the case

1. a) The first issue, which raises, is prohibition of torture. According to article 3 of the ECHR “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. However, article 3 of the ECHR only exceptionally imposes positive obligations on the state to protect individuals from inhuman or degrading treatment. It is well established that the positive obligation can only arise where the state: ‘Knew or ought to have known at the time of the existence of real and immediate risk of an identified individual from the criminal acts of a third party…’ [para 139]. In this instance the Croatian authorities had violated Article 3 of the ECHR. Whilst there had been sporadic attempts to address the abuse these had not been translated into effective action. As a result Dalibor Đorđević was indeed the victim of a violation of Article 3.

1. b) Furthermore, the state’s failure to protect Dalibor had knock-on effects on his mother which resulted in a violation of her Article 8 rights to respect for her private and family life, her home and her correspondence. The problem of disablist hate crime perpetrated by young teenage children against disabled adults is not unusual and it is certainly not specific to Croatia. What makes this case interesting is how very ordinary it is. Nothing about the facts make it stand out as a case which could only occur in Zagreb, or Croatia. The crimes Dalibor and Radmila Đorđević suffered were particularly hard to police because there were a great many perpetrators, most of whom were below the age of criminal responsibility. In addition whilst the acts had a very high frequency with some exceptions most were not serious offences in themselves. This is no way mitigates the severity of their suffering. But it helps to explain why the various agencies involved continued to hope that such a difficult problem might turn out to belong to somebody else.

The European Court of Human Rights therefore examines whether the applicants had exhausted all domestic remedies and concluded that in all practical senses they had, since the criminal justice system offered no protection at all, and the civil measures available to the applicants did not allow for interim relief which would protect them from harassment.

Adjudication method: Reference to domestic law of Republic of Croatia in conjunction with the reference to international law.

Reference to other constitutional courts: Decisions from Constitutional Court of Republic of Croatia, e.g. nos. U-I-892/1994 of 14 November 1994 (Official Gazette no. 83/1994) and U-I-130/1995 of 20 February 1995 (Official Gazette no. 112/1995).

Reference to International Law: Convention on the Rights of Persons with Disabilities, Recommendation Rec(2004)10 of the Committee of Ministers to member States concerning the protection of the human rights and dignity of persons with mental disorder, Recommendation Rec(2006)5 of the Committee of Ministers to member States on the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society: improving the quality of life of people with disabilities in Europe 2006-2015, Resolution ResAP(2005)1 on safeguarding adults and children with disabilities against abuse, Resolution 1642 (2009) of the Parliamentary Assembly on access to rights for people with disabilities and their full and active participation in society.

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication method. Furthermore, it refers to former jurisprudence, e.g. A. v. the United Kingdom [23 September 1998, § 20, Reports 1998-VI], Akdivar and Others v. Turkey [16 September 1996, §§ 68-69, Reports of Judgments and Decisions 1996-IV], Beganovic v. Croatia [no. 46423/06, § 71, 25 June 2009], Botta v. Italy [24 February 1998, § 33, Reports 1998-I], Cardot v. France [19 March 1991, § 34, Series A no. 200], etc.

Bibliography:

N. Munro, Đorđević v Croatia [Online]. Available from:

http://mentalhealthandcapacitylaw.wordpress.com/2012/07/26/dordevic-v-croatia/ [Accessed 26/07/2012], M. Roche, Failure to stop disability harassment is inhuman treatment, rules Strasbourg. Available from: http://ukhumanrightsblog.com/2012/09/26/failure-to-stop-disability-harassment-is-inhuman-treatment-rules-strasbourg/#more-15160 [Accessed 26/09/2012]

Key words: Prohibition of torture, Degrading treatment, Inhuman treatment, Positive obligations, Right to respect for private and family life, Positive obligations, Respect for family life, Respect for private life, Right to an effective remedy

Commentator/contact details: Despina Tziola, Aristotle University of Thessaloniki, Greece, deppytziola@hotmail.com.

IACL Project –Social Rights, Library of Social Rights

Catalogue of the Brazilian cases (Total of 29)
Coordinator/ Editor: Prof. Dr. Marcello Figueiredo -Researcher: Konstantin Gerber, k.gerber@uol.com.br

Social Right to Safety - precarious situation of Police Station;

Social Right to Safety - indisponible constitutional prerogative;

Social Right to Retirement - acquired right to the best benefit;

Social Right to the irreducibility of the value and to the readjustment of the social security benefit;

Union Freedom and competence to register union entities;

Right to education – Municipalities;

Right to compensatory reparation concerning arbitrary dismissal;

Right to the pension by death – Prior Administrative Petition;

Right to health – Patient with HIV/AIDS;

Rights to retirement and stability in employment - principle of the social value of work;

Right to health - financial availability of the State;

Right to life and to health of the child and of the teenager - Acquisition and Supply of imported Medicines;

Transfer of funds intended for education – agreement between Private entity and the State;

Right to education for children - art. 208, IV, of the Constitution;

Right to obligatory and free fundamental teaching and omission regarding analphabetism;

Paid leave for pregnant worker - principle of equality;

Right to health - drug registered in ANVISA - other persons in identical situation;

Social right to housing, the owner’s right of a real estate and the non attachability of the family good;

Right to health, right to life and determination of the payment of medical treatment out of Brazil;

Right to previous notice proportional to the time worked – writ of injuction;

Right to the teenager´s school transport – principle of the prohibition of insufficient protection;

Duty of assistencial contribution to the union and non-members;

Right to the benefit of assistance with continuous rendering - charge of defining the line of poverty;

Right to the reserve of a vacancy of applicant - person with disability in public contest;

Right to strike of public officers – writ of injunction;

Right to minimum wage capable to guarantee his and his family´s vital necessities – Presidential Decree;

1) Social Right to Safety - precarious situation of the Civil Police Station

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 06.04.2010
Number of the Decision: Suspension of Injunctive Relief – Supreme Court , Rel. Min. Gilmar Mendes

Social Rights Related: Social Right to Safety

Articles of the Federal Constitution: art. 144, § 4

Abstract of Court: the Public Prosecution service filed a public civil suit aimed at obtaining measures against the precarious situation of the Civil Police Station installed in the city of Ceará-Mirim, in which, in spite of the lack of physical conditions, were kept temporary and condemned prisoners, by reason of the insufficiency of vacant in public prisons. It was decided in the realm of the Supreme Court of the State of Rio Grande do Norte: to determine to the State to make service available for informing the police and judicial authorities the establishments to which the new prisoners should be sent; and to determine that must be submitted, within the term of ninety days, the plan for transference of all the prisoners under custody in the Civil Police Station of Ceará-Mirim and, in the event of insufficient vacant, to plan the building of new prison establishments to be implemented gradually in the six following months. In the Supreme Court: the decision was maintained and suspended to only the daily penalty imposed to the political agents for the noncompliance with the decision.

Adjudication Method: “As I have analyzed in doctrinal studies, the fundamental rights do not contain only a prohibition of intervention (Eingriffsverbote), but they also express a postulate of protection (Schutzgebote). Thus, there would be, using an expression of Canaris, not only a prohibition of insufficient protection (Untermassverbot)(Claus-Wilhelm Canaris, Grundrechtswirkungen um Verhältnismässigkeitsprinzip in der richterlichen Anwendung und Fortbildung des Privatsrechts, JuS, 1989, p. 161). In this objective dimension, also assumes importance the perspective of the rights to organization and to procedure,(Recht auf Organization und auf Verfahren), which are those fundamental rights that depend, in their realization, of measures by the State in order to create and to form agencies and procedures indispensable to their effectiveness. It seems logical, therefore, that the effectiveness of this social right to safety does not prescind of the positive action by the State in the sense of creating certain factual conditions, always depending on the funding resources available to the State, and of systems of bodies and procedures intended to this purpose. Otherwise, would be shielded, by means of a wide space of State discretionarity, factual situation undeniably loathed by society, characterizing typical hypothesis of insufficient protection by the State, at a more general level, and of the Judiciary, at a more specific level”.

Relation with Preterit Case Law and Elements of Innovation: the case law invoked works with the subject of the suspension of injunctive relief. The constitutional nature of the controversy justifies the competence of the Supreme Court to appreciate the request of counter caution (Rcl-AgR 497). The President of the Supreme Court is not forbidden from passing minimum judgment of appreciation concerning juridical issue present in the main claim (SS AgR 846). Public order is conceived as normal execution of the public services, the regular working of the public works and the due exercise of the administrative functions by the constituted authorities (SS 4405). See also SL 235, Rel. Min. Gilmar Mendes, delivered on 08.07.2008, regarding the analogous decision that had determined the implantation, in twelve months, of a program for the internment and semi-freedom of teenagers who had committed infractions.

Source: www.stf.jus.br

Key Words: transference of prisoners; building of new prison establishments; insufficient protection by the State

2) Social Right to Safety - indisponible constitutional prerogative

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 07.06.2011

Number of the Decision: Regimental Appeal in Appeal to the Brazilian Supreme Court, RE 559.646 – AgR, Rel. Min. Ellen Gracie

Social Rights Related: Social Right to Safety

Articles of the Federal Constitution: Arts. 2, 6 and 144

Abstract of Court: “ The right to safety is an indisponible constitutional

prerogative, guaranteed by means of the implementation of public policies which impose to the State the obligation to create objective conditions to make possible the effective access to such service. The Judiciary can determine the implementation by the State, when in default, of public policies constitutionally provided, without interference in an issue involving the discretionary power of the Executive. Precedents”

Adjudication Method: The right to safety is conceived as an indisponible constitutional prerogative, and the determination of public policy by the Judiciary is possible. The vote of Min. Ellen Gracie refers to the ADPF 45, which provided that the right to health has a “political dimension”. The principle of the separation of powers may not be used to preclude a social right recognized in the Constitution (art. 6 and 144). The decision is founded on the omission by the Administration to implement a public policy provided constitutionally (RE 410.715/SP), that compromises the efficacy and the integrity of the social and cultural rights (RE 410.715/SP).

Relation with Preterit Case Law and Elements of Innovation: the vote of Min. Ellen Gracie refers to the ADPF 45/DF, the RE 271.286-AgR/RS, the AI 597.182-AgR/RS, the AI 553.712/RS, the SS 3205/AM, the AI 562.561/RS, the SL 47-AgR/PE, the RE 410.715/SP and the RE 594.018-AgR/RJ.

Source: www.stf.jus.br

Key Words: Right to Safety; indisponible constitutional prerogative; omission by the Administration to implement a public policy provided constitutionally

3) Social Right to Retirement - acquired right to the best benefit

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 21.10.2010

Number of the Decision: Appeal to the Brazilian Supreme Court, RE 630501/RS – Rel. Min. Ellen Gracie

Social Rights Related: Social Right to Retirement

Articles of the Federal Constitution: Arts. 5, XXXVI, 7, XXIV, 102 3^rd. §, and art. 58 of the Acts of the Transitory Constitutional Provisions (ADCT – Atos das Disposições Constitucionais Transitórias) of the Brazilian Federal Constitution.

Abstract of Court: General Repercussion acknowledged. The issue concerning the recognizance of the acquired right to the best benefit has juridical and social relevance. It is most important to know whether, even under the force of a same law, the insured would have the right to choose, founded on the acquired right, the most advantageous benefit, considering the various dates on which the right could have been exercised, since when the minimum requisites for retirement had been accomplished.

Adjudication Method: There is a discussion on the definition of the law applicable to the calculus of the benefit of retirement, whether from the time when it was required, or from the date when it was granted. Construed of art. 102, 1^st. paragraph c.c. art. 122 of Law 8.213/91, founded on constitutional devices to declare the thesis of the right acquired to the best social security of general repercussion.

Source: CASTILHO, Ricardo. Direito adquirido ao melhor benefício previdenciário – Parte I, Jornal Carta Forense, abril, 2011, pág. B16 _______________________. Direito adquirido ao melhor benefício previdenciário – Parte II, Jornal Carta Forense, June, 2011, available at http://www.cartaforense.com.br/conteudo/colunas/direito-adquirido-ao-melhor-beneficio-previdenciario---parte-ii/7128

Keywords: issue concerning the recognizance of the acquired right to the best benefit

4) Social right to the irreducibility of the value and to the readjustment of the social security benefit

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 23.06.2009

Number of the Decision: Regimental Appeal in Interlocutory Appeal. AI AgR 594561/2009, Rel. Min. Ricardo Lewandowski

Social Rights Related: Social right to the irreducibility of the value and to the readjustment of the social security benefit

Articles of the Federal Constitution: Art. 194, IV and 201, 4^th. §

Abstract of Court: “Art. 41, II, of Law 8.213/1991 and its successive amendments do not violate the provision of art. 194, IV and 201, 2^nd. § of the Constitution. Precedents. After the edition of the laws on costing and benefits of social security, impossible to revise social security benefits related to the minimum wage. (…)”

Adjudication Method: there was application of preterit case law (RE-AgR 276151/RJ and RE-AgR 453105/MG)

Relation with preterit case law/Elements of Innovation: impossible to revise the social security benefits linked to the minimum wage variation (RE-AgR 276151/RJ). The Supreme Court recognized the material constitutionality of the infra constitutional legislation that realizes the readjustment of the social security benefits (RE-AgR 453105/MG).

Source: www.stf.jus.br

Key words: impossible to revise social security benefits related to the minimum wage

5) Union Freedom and competence to register union entities

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 03.08.1992

Number of the Decision: Injunction Order, MI 144/SP, Rel. Sepúlveda Pertence

Social Rights Related: Union Freedom

Articles of the Federal Constitution: art. 8, I, II and III, art. 236

Abstract of Court: “Professional association has procedural legitimacy to solicit injunction order intended to filling lacuna of the legislative discipline allegedly necessary for the exercise of the freedom to turn into a union (Federal Constitution, art. 8). There is no procedural interest necessary for the impetration of an injunction order, if the exercise of the right, of the freedom or of the constitutional prerogative of the solicitor is not made unfeasible owing to the lack of infra constitutional rule, given the reception of former ordinary right. Union freedom and unicity and competence to register union entities (Federal Constitution, art. 8. I and II): reception of the competence of the Department of Labor, in terms, without prejudice of the possibility that the law create a differente regime”.

Adjudication Method: The constitutional conception of union freedom does not exempt the public registration, which is an act linked to the legal criteria and to the constitutional principle of the territorial unicity for economic category. The vote of Min. Sepúlveda Pertence questions whether the constitutional precept that provides on the registration of union entities has full efficacy and immediate applicability, with the Brazilian doctrine of José Afonso da Silva, to affirm that there is no reception of a pre-constitutional rule. The competence of the Labor Department to register the constitution of the union entities was justified by the function of guaranty of the principle of the union unicity. That which is prohibited is the establishment by law of a prior discretionary authorization to create the union, for which was invoked the doctrine of Xavier de Albuquerque with the purpose to make an “adequating reinterpretation” before the Federal Constitution of 1988, for the public registration of a union to start being a linked, not a discretionary act. It was not considered that there was a procedural interest of the injunction order, because the right had not been made unfeasible by the lack of an infra constitutional rule, in view of the fact that the right was considered received by the Federal Constitution, more specifically, the right contained in art. 558 of the Labor Code (CLT). In the vote of Min. Marco Aurélio, art. 8, section I of the Federal Constitution does not depend on a regulatory rule, constituting prohibition to the legislator, for there is not for this judger the reception of art. 558 of the CLT. The vote of Min. Celso de Mello refers to the doctrine of Maria Helena Diniz of the “absence of an indispensable rule, so that another one produces juridical effects” (Norma Constitucional e Seus Efeitos, 1989, p.38) for the concept of injunction order. There was, in this decision, pondering between the principle of free union association and the principle of union unicity.

Reference to International Law: Convention 87 of 1948 of the International Labor Organization (Entry 224, Recompilation of Decisions and Principles of the Committee of Union Freedom, OIT, Geneva, 1985).

Relation with preterit case law/Elements of Innovation: the votes refer to the doctrinal and case law divergence of the Superior Court and of the Superior Labor Tribunal, on which is the competent body to register the unions, whether the civil registry of the Labor Department.

Source: www.stf.jus.br

Key words: union freedom; competence of the Labor Department to register the constitution of the union entities

6) Right to education - Municipalities

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 27.08.2004

Number of the Decision: RE 401880/SP, Rel. Min. Eros Grau

Social Rights Related: the right to education

Articles of the Federal Constitution: 205, 208, I, 211, § 2º

Abstract of Court: “ The Supreme Court of the State of São Paulo denied granting to the appeal interposed by the Municipality of São Paulo. The decision is abridged as follows: “Writ of Mandamus. Minor. Right to fundamental education. Tuition in first degree municipal school near the minor´s residence. Decision granting the writ. (…) Application of articles 148, V, 208, I and 209 of the Statute of the Child and of the Teenager (ECA). Fundamental teaching guaranteed not only by ECA (arts. 53 and 54), but also by the Federal Constitution itself (arts. 205, 208, I and 211, § 2). A matter not only of convenience, but also of the right to a vacancy in a school. Function of the Judiciary to enforce and respect the rules in force, that does not configure interference in the Executive´s discretionary power. Offense to the right that deserves prompt and immediate correction by the Judiciary. Decision maintained’. (…) The precept inscribed in article 211, § 2, of the Constitution – ‘ The Municipalities shall act with priority in the fundamental and pre-school teaching’ – is a programmatic rule that finds its concretization by means of laws intended to implement public policies”.

Adjudication Method: the violation to art. 211, §, Federal Constitution, if it were, would be indirect and reflex, which did not make feasible the knowing of the Appeal to the Brazilian Supreme Court, in view of art. 21, § 1 of the Internal Regiment of the Supreme Court, RISTF, because this decision understood that the rule of art. 211, § 2 is programmatic, but is concretized by means of laws, thus the unreasonableness of the Appeal to the Brazilian Supreme Court.

Source: www.stf.jus.br

Key Words: Right to education - Municipalities shall act with priority in the fundamental and pre-school teaching

7) Right to compensatory reparation concerning arbitrary dismissal

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 04.09.1997

Number of the Decision: ADI n^r. 1.480-3/97, Rel. Min. Celso de Mello

Social Rights Related: the right to compensatory reparation concerning arbitrary dismissal or without a just cause

Articles of the Federal Constitution: art. 7º, I and art. 10, I of ADCT/88

Abstract of Court: “ Direct Action of Unconstitutionality. Convention n^r. 158/OIT. Protection of the worker against arbitrary dismissal or without a just cause. Allegation of constitutional illegitimacy of the acts that incorporated this international convention to the internal positive law of Brazil (Legislative Decree n^r. 68/92 and Decree n^r. 1.855/96. Possibility of abstract control of constitutionality of international treaties or conventions in light of the Constitution of the Republic – alleged transgression to art. 7, I, of the Constitution of the Republic and to art. 10, I, of ADCT/88. (…) Constitutional legitimacy of Convention n^r. 158 of the ILO, provided that the construed is observed according to the Supreme Court”.

Adjudication Method: there was “construed according to” the Supreme Court of Convention n^r. 158 of the International Labor Organization (ILO), to declare it incompatible in view of the prevision of reserve of Complementary Law by the Constitution and to characterize the referred International Convention as a programmatic rule. The decision was for the formal and material unconstitutionality of the right to the reintegration to the employment provided by the Convention of the ILO in the light of the right to compensatory reparation of the worker dismissed arbitrarily or without a just cause, established by the Brazilian Constitution.

Reference to the International Law: Convention n^r. 158 of the ILO. The vote of Rel. Min. Celso de Mello refers to art. 26 of the Inter American Charter of Social Guaranties of 1948 and arts. 7 and 8 of the International Pact of the Economic, Social and Cultural Rights, the Vienna Convention on the Treaties, does is not comparable with Rp. N. 803-DF (declaration of partial unconstitutionality of Convention n^r. 110 of the ILO) to grant the preliminary order with the purpose to declare the unconstitutionality of the referred International Convention.

Relation with preterit case law/Elements of Innovation: The vote of Rel. Min. Celso de Mello refers the RED 80.004-SE (between international treaties and Brazilian internal laws there is a relation of normative parity). Refers the RE 179.193-PE and Abstract 77 of the TST. The divergent vote of Min. Carlos Velloso, in which he admits the entering of international treaty as Complementary Law, by art. 5, paragraph 2 of the Federal Constitution, refers RE 205.815-RS (self-applicability of art. 7, inc. XIV). The vote of Min. Sepúlveda Pertence refers Abstract 575 of the STF (exemption of State taxes by the GATT).

Source: www.stf.jus.br and SOARES FILHO, José. A Convenção n. 158 da OIT. Revista CEJ, ano XV, n. 54, jul./set. 2011

Key words: right to compensatory reparation concerning arbitrary dismissal; “construed according to” (Verfassungskonforme Auslegung) the Supreme Court of Convention n^r. 158 of the International Labor Organization (ILO)

8) Right to the pension by death – Prior Administrative Petition

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 03.06.2008

Number of the Decision: RE 548676 AgR, Rel. Min. Eros Grau

Social Rights Related: right to the pension by death

Articles of the Federal Constitution: art. 5º, XXXIV, XXXV e LV

Abstract of Court: “Interlocutory Appeal in the Brazilian Supreme Court. Social Security. Pension by death. Prior administrative petition. Negative of social security Autarchy as a condition for access to the Judiciary. Unnecessariness. There is not in the constitutional text a rule that institutes the necessity of prior negative of petition for the concession of social security benefit in the administrative realm as a condition for the request of judicial granting”.

Adjudication Method: application of preterit case law in the sense that there is no necessity of prior administrative request in order to litigate social security benefit in the Judiciary.

Relation with preterit case law/Elements of innovation: AI n. 525.766

Source: www.stf.jus.br

Key Words: right to the pension by death; necessity of prior negative of petition in the administrative realm for the social security granting

9) Right to health – Patient with HIV/AIDS

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 12.09.2000

Number of the Decision: Interlocutory Appeal in the Appeal to the Brazilian Supreme Court, RE 271286 AgR/RS, Rel. Min. Celso de Mello

Social Rights Related: the right to health

Articles of the Federal Constitution: arts. 5º, caput, and 196

Abstract of Court: “ Patient with HIV/AIDS – person destitute of financial resources – constitutional duty of the public power (Federal Constitution, arts. 5, caput, and 196) – Precedents (STF) - Interlocutory Appeal not granted. The Right to health represents constitutional consequence indissociable of the right to life. The public right subjective to health represents indisponible juridical prerogative assured to the generality of the persons by the Constitution of the Republic itself (art. 196). Translates juridical good constitutionally protected, for whose integrity must zeal, in a responsible manner, the Public Power, in charge of formulating – and implementing – suitable social and economic policies aimed at guaranteeing, to the citizens, including the bearers of the HIV virus, the universal and equal access to the pharmaceutical and medical-hospital assistance. (…) The programmatic character of the rule inscribed in art. 196 of the Political Charter – addressed to all the political entities that compose, at the institutional level, the federative organization of the Brazilian State – may not be turned into an inconsequent constitutional promise, under penalty that the Public Power, by defrauding just expectations deposited by the collectivity, substitute, in an illegitimate manner, the compliance of its unpostponable duty, by an irresponsible gesture of governmental infidelity to what the Fundamental Law of the State itself determines. Free distribution supply of medicines for people in lack of resources. The judicial recognition of the juridical validity of programs for the free distribution of medicines for people in lack of resources, including the bearers of the HIV/AIDS virus, gives effectiveness to fundamental precepts of the Constitution of the Republic (arts. 5, caput, and 196) and represents, in the concretion of its range, a reverent and solidary of the appreciation of the persons´ life and health, especially those who have nothing and who own nothing, except for the awareness of their own humanity and their essential dignity. Precedents of the STF”.

Adjudication Method: The right to health is related to the right to life. The right to health is conceived as a subjective public right, juridical prerogative undisponible and fundamental right. The vote of Min. Celso de Mello recognized that the Municipality of Porto Alegre and the State of Rio Grande do Sul are jointly in charge of the obligation to supply for free the drugs necessary for the treatment of AIDS, in the cases of patients destitute of financial resources and bearers of the HIV virus. Justifies with the dismissal of public bid for cases of emergency and public calamity to refute the argument of necessary budgetary scheduling. Conceives the right to health as an inalienable subjective public right. As he says: “the sense of the fundamentality of the right to health (…) imposes on the Public Power a duty of positive rendering”.

Relation with preterit case law/Elements of innovation: : Ag 232.469/RS, Ag 236.644/RS, Ag 238.328/RS, Pet 1.246/SC, RE 273.042/RS, RE 236.200/RS, RE 247.900/RS, RE 264.269/RS, RE 267.612/RS, RE 232.335/RS and RE 273.843/RS. It may be noted as an element of innovation to AI 238328-0 AgR/RS, 1999, Rel. Min. Marco Aurélio – also based on the “material impossibility” (financial impossibility) for acquiring medicine and on the right to health provided in art. 196 as a decision criterion for the obligation to supply medicine to a patient bearer of the HIV virus – the funding on the right to life, as per RE 271286 AgR/RS.

Source: JUNIOR, Alberto do Amaral & JUBILUT, Liliana Lyra (org.) O STF e o Direito Internacional dos Direitos Humanos, Quartier Latin, São Paulo: 2009, p. 882

Key Words: financial impossibility for acquiring medicine; patient with HIV/AIDS; right to health

10) Rights to retirement and stability in employment - principle of the social value of work

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 11.10.2006

Number of the Decision: Adi 1.721-3, Rel. Min. Carlos Britto

Social Rights Related: rights to retirement and stability in employment

Articles of the Federal Constitution: art. 1, IV, art. 7, I, 170, caput and incise VIII, 193, 201 § 7, I and II e art. 10 of the ADCT

Abstract of Court: “
Direct Action of Unconstitutionality. Article 3 of Provisional Remedy n^r. 1.596-14-97, converted into Law n^r.9.528/97, that added to article 453 of the Consolidation of the Labor Laws a second paragraph to extinguish the employment relation upon the concession of spontaneous retirement. Legal basis of the action. The conversion of the provisional remedy into law hinders the jurisdictional debate on the “relevance and urgency” of this species of normative act. The social values of work constitute: a) fundament of the Federative Republic of Brazil (incise IV of article 1 of the Federal Constitution); foundation of the Economical Order, whose purpose is to assure to all a dignified existence, according to the dictates of social justice, and, by one of its principles, the quest of full employment (article 170, caput and incise VIII); c) basis of the whole Social Order (article 193). This framework of principles, densified in rules such as incise I of article 7 of the Constitution and those of article 10 of the ADCT/88, unveils a constitutional command that pervades every employment relation, in the sense of its desired continuity. (…)”

Adjudication Method: The principle of the social value of work was applied for the declaration of unconstitutionality of § e of article 453 of the Consolidation of the Labor Laws.

Relation with preterit case law and elements of innovation:

Source: www.stf.jus.br

Key Words: Rights to retirement and stability in employment - principle of the social value of work

11) Right to health - financial availability of the State

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 29.04.2004

Number of the Decision: Allegation of Noncompliance of Fundamental Precept, ADPF 45 MC/DF, Rel. Min. Celso de Mello

Social Rights Related: the right to health

Articles of the Federal Constitution: art, 77 of the Acts of the Transitory Constitutional Provisions (ADCT)

Abstract of Court: “ Allegation of Noncompliance with Fundamental Precept. The issue of the constitutional legitimacy of the control and the intervention of the Judiciary in the subject of implementation of public policies, when configured hypothesis of governmental abusiveness. (…) Considerations about the clause of the ‘reserve of the possible’. Necessity of preservation in favor of the individuals, of the integrity and the intangibility of the nucleus of consubstantiator of the ‘existential minimum’. Instrumental feasibility of the Allegation of Noncompliance of Fundamental Precept in the process of concretization of the positive freedoms (constitutional rights of second generation). (…) The disrespect to the Constitution may occur by means of an action of the State, as well as by means of governmental inertia (…)”

Adjudication Method: Allegation judged impaired by supervenient loss of its object. The Judiciary may intervene in the subject of implementation of public policies, when configured “governmental abusiveness”. The economic, social and cultural rights are characterized by the graduality of their concretization process and they are subordinated to the budgetary possibilities of the State. The clause of the “reserve of the possible” is translated into the binomium “reasonability of the pretension + financial availability of the State”. There was the application of the doctrine of Stephen Holmes and Cass R. Sunstein. As construed by the Supreme Court, the economic, social and cultural rights are of second generation and of “always onerous implantation”. The “undue manipulation” of the “financial and/or political-administrative activity” by the Public Power constitutes illegitimate act when it renders unfeasible the minimum material conditions of existence and when it affects this “intangible nucleus” by means of an unjustified denial, in the cases of normative omission and rendering omission.

Relation with preterit case law and elements of innovation: (RTJ 164/158-161, RTJ 185/794-796 and RTJ 175/1212-1213). On the inertia of the Public Power and unconstitutional behavior see also: Adi 1.458-MC/DF. On the issue of the reserve of the possible in the case law of the Supreme Court, WANG, D.W.L. may be consulted. Lack of resources, costs of the rights and reserve of the possible in the case law of the Supreme Court. Available in:

http://www.scielo.br/pdf/rdgv/v4n2/a09v4n2.pdf

Source: www.stf.jus.br

Key Words: financial availability of the State; existential minimum; right to health

12) Right to life and to health of the child and of the teenager - Acquisition and Supply of imported Medicines

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 22.02.2000

Number of the Decision: Appeal to the Brazilian Supreme Court, RE 195.192-3/RS, Rel. Min. Marco Aurélio

Social Rights Related: the right to life and to health of the child and of the teenager

Articles of the Federal Constitution: art. 5, caput, inc. LXIX, 6,194, 196, 201, inc. I, 227, caput.

Abstract of Court: “ Writ of Mandamus. Adequacy. Incise LXIX of article 5 of the Federal Constitution. (…) Acquisition and Supply of Medicines. Rare illness. The State is in charge of providing means in order to obtain the health, especially when involved the child and the teenager. The Sistema Único de Saúde – Single Health System makes the responsibility linear encompassing the Union, the States, the Federal District and the Municipalities”. The State of Rio Grande do Sul was obligated to supply drugs produced in Switzerland and in the United States.

Adjudication Method: net and certain right to medical care. Founds also the decision on the joint responsibility of the federative entities. According to vote of Min. Marco Aurélio: “budgetary problems may not hinder the implement of that which was provided constitutionally”.

Source: www.stf.jus.br and MOUSINHO, Ileana Neiva. In: CORDEIRO, Juliana Vignoli & CAIXETA, Sebastião Vieira (coords) O Mpt como promotor dos direitos fundamentais. ANPT, LTr, 2006.

Key Words: Right to life and to health of the child and of the teenager - Acquisition and Supply of imported Medicines

13) Transfer of funds intended for education – agreement between Private entity and the State

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 29.06.1999

Number of the Decision: Interlocutory Appeal in Appeal to the Brazilian Supreme Court, RE 241757 AgR/MA, Rel. Min. Maurício Corrêa

Abstract of Court: “Interlocutory Appeal in Appeal to the Brazilian Supreme Court. Constitutional. Administrative. Private entity for social assistance. Rendering of specialized teaching. Transfer of funds intended for education. Inexistence of agreement. Impossibility. Fundamental teaching for bearers of deficiency. Non offering by the Public Power. Consequence. Payment of the expenses made by the petitioner. Unacceptable pretension. Abridgment 269/Supreme Court. The public funds, by constitutional provision, shall be passed on to public schools, may be addressed to the community, confessional or charitable, defined in law, that prove a non-profitable purpose and apply their financial excedents in education and also, who assure the destination of their patrimony to other institutions of identical nature, or to the public power, in the event of closing their activities. 2. Private entity declared of public utility by the Federal Government and recognized as of social assistance without profitable purposes. Transfer of funds intended to education. Necessity to observe the conditions imposed by the conditions impose by the Constitution and to establish an agreement with the public power. 2.1. Transfer of financial resources by judicial decision. Impossibility for the Judiciary to interfere in the freedom of the public entity for entering into administrative contracts. Net and certain right. Inexistence. 3. Obligatory teaching for bearers of deficiency. Non offering by the public power. Consequence: imputation of responsibility to the competent authority. Calculation. Necessity to produce proofs. Writ of Mandamus. Inadequacy of elected way. 4. Commitment of the public power to the payment of debt assumed by private entity for performing social work, of competence of the State. Unacceptable pretension. The writ of mandamus is not a surrogate for a collection suit. (…)”.

Adjudication Method: Inadequacy of the procedural way elected for collection suit of the State and impossibility of the Judiciary to invade orbit of administrative discretionary in the formulation of administrative agreements and contracts to transfer financial funds.

Source: www.stf.jus.br

Key Words: Transfer of funds intended for education - inexistence of agreement - impossibility

14) Right to education for children - art. 208, IV, of the Constitution

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 27.10.2005

Number of the Decision: Interlocutory Appeal in Appeal to the Brazilian Supreme Court, Nr. RE 410.715-5, Rel. Min. Celso de Mello

Social Rights Related: right to education for children

Articles of the Federal Constitution: art. 205, 208, IV, 211, § 2º, 227, caput

Abstract of Court: “ Child up to six years old. Care in Nursery and in Pre-School. Children education. Right assured by the constitutional text itself (Federal Constitution, art. 208, IV). Global encompassing of the constitutional right to education. Juridical duty whose exception is imposed upon the public power, mainly to the municipality (Federal Constitution, art. 211, § 2. Appeal to the Brazilian Supreme Court known and granted. Children education represents an indisponible constitutional prerogative which, deferred to children, assures them, to the effect of their integral development, and as the first stage of the basic education process, the care in nursery and the access to pre-school (Federal Constitution, art. 208, IV). This juridical prerogative, consequently, imposes to the State, by effect of the high social signification of education for the children, the constitutional obligation to create objective conditions that make it possible, in a concrete manner, in favor of the ‘children from zero to six years old’ (Federal Constitution, art. 208, IV), the effective access and care in nurseries and pre-school units, under penalty of configuring inacceptable governmental omission, apt to frustrate, unfairly, by inertia, the integral compliance, by the Public Power, of a rendering by the State which was imposed by the text of the Federal Constitution itself. (…) The Municipalities – who will act, by priority, in fundamental teaching and in children education (Federal Constitution, art. 211, § 2 – may not dismiss themselves from the constitutional mandate, juridically linking, which was granted to them by art. 208, IV, of the Fundamental Law of the Republic, and which represents a factor of limitation of the discretionary political-administrative nature of the municipal entities, whose options, concerning children care in nursery (Federal Constitution, art. 208, IV), may not be exercised so as to jeopardize, with support in judgment of simple convenience or mere opportunity, the efficacy of this basic right of social character (…)”.

Adjudication Method: The municipal public administrator is linked to art. 208, IV, of the Constitution, which represents a factor of limitation of the political-administrative discretionary nature of the municipal entities. In this decision, childrens´ education constitutes an “indispensable constitutional prerogative”, “one of the most expressive social rights”, right of second generation and fundamental right of the child. There is reference to the ADPF 45/DF and to the doctrine of the “reserve of the possible”, affirming that there is no judgment of opportunity and convenience, under penalty of configuring unconstitutional administrative omission.

Relation with preterit case law and elements of innovation: AI 455.802/SP, AI 475.571/SP, RE 401.673/SP, RE 411.518/SP, RE 436.996/SP, RE 431.773/SP; and ADPF-MC 45/DF.

Source: www.stf.jus.br

Key Words: Right to education for children - art. 208, IV, of the Constitution

15) Right to obligatory and free fundamental teaching and omission regarding analphabetism

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 25.02.2010

Number of the Decision: ADI 1.698, Rel. Min. Cármen Lúcia

Social Rights Related: the right to obligatory and free fundamental teaching

Articles of the Federal Constitution: arts. 6º, 23, inc. V, 208, inc. I and 214, inc. I

Abstract of Court: “ Direct Action of Unconstitutionality by omission regarding the provisions of arts. 6, 23, inc. V, 208, inc. I and 214, inc. I of the Constitution of the Republic. Alleged inertia attributed to the President of the Republic to eradicate analphabetism in the country and to implement obligatory and free fundamental teaching for all the Brazilians. 1. Data of the census of the Brazilian Institute of Geography and Statistics show a reduction of the rate of analphabet population, complemented by the increase in schooling by the young and the adults. 2. Absence of omission by the Chief of the federal Executive Power by reason of the high number of governmental programs for the education area. 3. The edition of Law n^r. 9.394/96 (Law of Guidelines and Bases of National Education) and of Law n^r. 10.172/2001 (Approves the National Education Plan) demonstrates the action of the Public Power for complying with the Constitution. 4. The direct action of unconstitutionality by omission without legal basis).

Adjudication Method: verification of the existence of federal programs and laws that concretize the Constitution, using indexes of the Brazilian Institute of Geography and Statistics and demonstrate that there has been a decrease of analphabetism in Brazil. In the debates in plenary, it was reiterated that there is no budgetary contingence (retention of public funds) by the Executive Power, and verified the observance of the minimum percentages constitutionally provided for the budget of education. The basic argument of the Min. Relater Carmen Lúcia was that there was no inertia of the Public Power.

Source: www.stf.jus.br

Key words: Right to obligatory and free fundamental teaching - omission regarding analphabetism - existence of federal programs and laws that concretize the Constitution

16) Paid leave for pregnant worker - principle of equality

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 03.04.2003

Number of the Decision: Provisional Remedy in Direct Action of Unconstitutionality, ADI-MC 1946, Rel. Min. Sydney Sanches and ADI 1946, Rel. Min. Sydney Sanches

Social Rights Related: Paid leave for pregnant worker

Articles of the Federal Constitution: 3º, IV, 5º, I, 7º, XVIII, and 60, § 4º, IV

Abstract of Court: “(…) the Direct Action of Unconstitutionality is judged with legal basis, partly, to give to art. 14 of Constitutional Amendment n^r. 20, of 15.12.1998, interpretation according to the Constitution, excluding its application to the salary of the paid leave for pregnant worker referred to by art. 7, incise XVIII, of the Federal Constitution (…)”.

Adjudication Method: the Supreme Court conferred “interpretation agreed without reduction of text” to art. 14 of Constitutional Amendment n^r. 20 of 15.12.1998, which attributed to the employer the payment of the social security benefit of the worker that earned more than 1.200 R$, in order not to apply to the paid leave of the pregnant worker for 120 days, without loss of the job and of the salary, art. 7, XVIII for not occurring “historic retrocession”, “ignore the great feminine conquests in the Brazilian society”, according to the vote of Min. Rel. Sydney Sanches, and in order not to exist discrimination by sex, according to the prohibition of art. 7, XXX, Federal Constitution, in interpretation combined with the principle of equality, art. 5, inc. I, Federal Constitution. Direct Action of Unconstitutionality is admitted against Constitutional Amendment, as decided in the ADI 939, when alleged offense to fundamental principles and to individual rights and guarantees (art. 60, § 4, Federal Constitution).

Relation with preterit case law and elements of innovation: ADI 939 was invoked to fundament the legal basis of the direct action of unconstitutionality in view of Constitutional Amendment. Can be reported RE 166.772-9 and ADI 1102-2 for the discussion on the juridical nature of the pregnant worker´s paid leave, of labor or social security nature. Were related ADI/MC 432, ADI 337, ADI 381, ADI 710 and ADI/MC 1653 to fundament the understanding that efficacy norms in the realm of the Administration, norms of internal efficacy, are subject to the control of legality, not to the concentrated control of constitutionality.

Source: www.stf.jus.br

Key words: paid leave for pregnant worker - principle of equality – discrimination by gender

17) Right to health - drug registered in ANVISA - other persons in identical situation

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 27.05.2009

Number of the Decision: Suspension of the writ, SS 3741/2009. Rel. Min. Gilmar Mendes

Social Rights Related: public right subjective to the health policy

Articles of the Federal Constitution: arts. 5, § 1, art. 6, 23, inc. II, 195,196 and 197

Abstract of Court: “It is a request of suspension of the writ, formulated by the Municipality of Fortaleza, in the light of the preliminary decision delivered by chief judge Celso Albuquerque Macêdo of the Supreme Court of the State of Ceará, relater of the Writ of Mandamus n^r. 2008.0040.0417-1/0, who determined that the State of Ceará and the Municipality of Fortaleza supply the drugs listed in the initial petition (…) From this perspective, it may be necessary to redimension the issue of the judicialization of the social rights in Brazil. This is because in most cases, the judicial intervention does not occur in view of an absolute (legislative) omission in the matter of public policies intended to protect the right to health, but because of a necessary judicial determination for the compliance with already established policies. Therefore, it is not about the problem of judicial interference in realms of free appreciation or widely discretionary of other powers on the formulation of public policies (…)”.

Adjudication Method: The right to health is considered as a fundamental social right. The assured public subjective right is construed by means of social and economic policies, there is no “absolute right to every and any procedure necessary for the protection, promotion and recuperation of health”. The judicial interventions do not occur in view of absolute legislative omission in public policies addressed to the protection of the right to health, but by virtue of the necessary judicial determination for complying with established policies. There was no damage proved to the municipal treasuries for the suspension of the granted suspension. The issue under analysis was an order of medicines registered at ANVISA, but not supplied by the SUS. If the suit of rendering of health is not encompassed by the SUS policies, it must be differentiated whether the non-rendering results from legislative omission, administrative omission or administrative refusal. For these cases, the method for taking the decision is to weigh principles for each concrete case, with the judge evaluating between the criteria of commutative and distributive justice, so that the SUS has conditions for paying the costs of the health service of the person who sues and of others in identical situation.

Relation with preterit case law and elements of innovation: RE 280.642/RS, RE-AgR 273.042/RS, RE-AgR 255.627/RS, RE195.192-3/RS, RE-AgR 271.286/RS, RE-AgR 393175/RS, AI-AgR 486.816/RJ, RE 256327/RS, RE 242.859/RS, ADPF/MC 45/DF and STA 91-1/AL. The innovation consists to verify if the drug has register in ANVISA and if the SUS has conditions for rendering the service to other persons in identical situation. See also: SS 3690, SS 3751, Rel. Min. Gilmar Mendes, judged on 20/04/2009, STA 198/MG, Rel. Min. Gilmar Mendes, judged on 22/12/2008 and SL 228/CE, Rel. Min. Gilmar Mendes, judged on 14/10/2008.

Fonte: www.stf.jus.br

Key Words: Right to health - drug registered in ANVISA - other persons in identical situation

18) Social right to housing, the owner’s right of a real estate and the non attachability of the family good

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 06.02.2007

Number of the Decision: RE 439.003, Rel. Min. Eros Grau

Related Social Rights: the right to housing and the non attachment of a family good

Articles of the Federal Constitution: arts. 5, caput, XXVI, 6, 7, IV, 23, IX, 183 and 226

Abstract of Court: “Appeal to the Brazilian Supreme Court. Family good. Attachment. Joint owned property expenses. 1. The joint owned property relation is, typically, a relation of scope communion. The payment of the joint owned property contribution [obligation propter rem] is essential for the conservation of the property, that is to say, the guarantee of the individual and familiar subsistence to the dignity of the human person. 2. There is no reason for, in this case, to think of non attachment. 3. Appeal to the Brazilian Supreme Court with granting denied”.

Adjudication Method: the vote of Min. Eros Grau is founded on the fact that the payment of the joint owned property is “essential for the conservation of the property” and “for guaranteeing individual and familiar subsistence”, with reference to the doctrine of Von Ihering, considering that the joint property contribution consists in a relation of scope communion.

Relation with preterit case law and elements of innovation: Regarding the RE 407.688/AC, Rel. Min. Cezar Peluso, judged on 08.02.2006, the same understanding was maintained. In this Appeal to the Brazilian Supreme Court was also admitted the attachment of a family good, deciding that there was no offense to the right to housing. The vote of Min. Peluso argued that the social right to housing must not be confused with right to be the owner of a real estate, with invocation of art. 65, 2 of the Constitution of Portugal. The vote of Min. Eros Grau brought the decision by the German Constitutional Court on January 29^th. 1969. The vote of Min. Joaquim Barbosa referred the RE 201.819, with the affirmation that the fundamental rights are not absolute. The decisions of Min. Carlos Britto invoked art. 7, IV, art. 23, IX, art. 183 and art. 226 of the Federal Constitution. The vote of Min. Sepúlveda Pertence reinforces the vote of Min. Cezar Peluso based on the doctrine of the horizontal efficacy of the fundamental rights, for to make location feasible – which implies the guarantee by means of a guarantor – consists also in modality of concretization of the right to housing. The debates were on the right to housing of the owner against the right to housing of the lessee. The vote of Min. Celso de Mello referred art. 25 of the Universal Declaration of the Rights of the Human Person and art. 11 of the International Pact of the Economic, Social and Cultural Rights. That what is verified as an innovation element was the change of understanding of the Supreme Court since RE 407.688, for in the decisions RE 352.940 and RE 449.657, in the case of attachment of residential real estate of guarantor in location contract, the non attachability of the family good had been assured.

Reference to other Constitutional Courts: German Constitutional Court, decision on January 29^th. 1969.

Reference to International Law: art. 25 of the Universal Declaration of the Rights of the Human Person and art. 11 of the International Pact of the Economic, Social and Cultural Rights

Source: www.stf.jus.br and SARLET, Ingo Wolfgang. Direito à moradia e penhora, do imóvel do fiador: breves notas a respeito da atual posição do Supremo Tribunal Federal brasileiro – RE 407.688-8 In: BRANCO, Paulo Gustavo Gonet & MENDES, Gilmar Ferreira & VALE, André Rufino do. A jurisprudência do STF nos 20 anos da Constituição. Saraiva, IDP, São Paulo: 2010

Key words: social right to housing; owner’s right of a real estate; attachment of residential real estate of guarantor in location contract

19) Right to health, Right to life and determination of the payment of medical treatment out of Brazil

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 24.09.2004

Number of the Decision: Appeal to the Brazilian Supreme Court RE 411.557, Rel. Min. Cezar Peluzo

Related Social Rights: the right to health

Articles of the Federal Constitution: art. 196

Abstract of Court: “Appeal to the Brazilian Supreme Court against sentence that condemned the Health Department to pay medical treatment of patients bearers of progressive ocular illness, to be done abroad. (…)”.

Adjudication Method: there was application of preterit case law, in which the right to health and the right to life are indissociated, case of the obligation to supply drugs to the person bearer of HIV and lacking financial resources – and application of digest owing to the impossibility to reexamine facts and proofs in extraordinary appeal. The peculiarity of the case consisted in being a case in which there was determination of the payment of medical treatment out of Brazil.

Relation with preterit case law/Elements of Innovation: RE n. 271.286-AgR, AI n. 418.320, RE n. 259.415, RE n. 198.263, RE n. 242.859, RE 393.175-AgR, SS 3205/AM and RE 267.612/RS.

Source: www.stf.jus.br and BARROSO, Luís Roberto. Da falta de efetividade à judicialização excessiva: direito à saúde, fornecimento gratuito de medicamentos e parâmetros para a atuação judicial. Revista de Direito Social, n. 34, ano IX, abr./jun. 2009, p. 41

Key words: right to health; right to life and determination of the payment of medical treatment out of Brazil

20) Right to previous notice proportional to the time worked – writ of injuction

Country: Brazil, Supreme Court (STF)

Year of the Decision: decision of suspension of judgment on 22.06.2011

Number of the Decision: writ of injunction, MI 943, Rel. Min. Gilmar Mendes

Related Social Rights: the right to previous notice proportional to the time worked

Articles of the Federal Constitution: art. 7, inc. XXI

Informative Summary n^r. 632 of the Supreme Court:

“The Plenary started joint set of writs of injunction in which is alleged legislative omission of the Presidents of the Republic and of the National Congress, in view of the absence of regulation of art. 7, XXI, of the Federal Constitution, concerning the previous notice proportional to the time worked (‘Art. 7 Are rights of the urban and rural workers, beside others aimed at improving their social condition:… XXI – previous notice proportional to the time worked, of 30 days minimum, in the terms of the law (…)”.

Adjudication Method: the decisions in plenary are based on the case law of writ of injunction of the Supreme Court, with consensus on the necessity of decision for the concrete case and on the hetero-integration method. The judgment was suspended.

Reference to International Law: recommendation of the International Labor Organization – ILO on the extinction of the labor relation

Relation with preterit case law/Elements of Innovation: the writ of injunction in the Supreme Court passed from the simple communication of legislative culpable delay, as in the MI n^r. 107, to the normative and concretizing solution by the Judiciary.

Source: www.stf.jus.br and AMARAL, Sérgio Tibiriçá & TEBAR, Wellington Boigues Corbalan. Efetivação judicial das normas constitucionais não regulamentadas. In: SIQUEIRA, Dirceu Pereira & LEÃO JÚNIOR, Teófilo Marcelo de Arêa (orgs.) Direitos Sociais. Uma abordagem quanto à (in)efetividade desses direitos – a Constituição de 1998 e suas previsões sociais. Boreal, Birigui: 2011, pp. 332 e 345

Key words: right to previous notice proportional to the time worked – writ of injuction

21) Right to the teenager´s school transport – principle of the prohibition of insufficient protection

Country: Brazil, Supreme Court (STF)

Year of the Decision: April 20th. 2009

Number of the Decision: Suspension of Provisional Remedy, STA 318/RS, Rel. Min. Gilmar Mendes

Related Social Rights: the right to the teenager´s school transport

Articles of the Federal Constitution: art. 206, VII, 208, II and §§ 1 and 2, 211, § 3, 212 and 227

Abstract of Court: “The public civil action pleads condemnation of the State of Rio Grande do Sul to supply school transport to the intermediary instruction students, minor than eighteen years old, especially in the night period, who reside at a distance of more than 3km from public schools, in the municipality of Lajeado (…)”.

Adjudication Method: applied the principle of the prohibition of insufficient protection, considering there is command linked to the budgetary preparation, put as priority guarantee of the teenager in the formulation and in the implementation of public policies, with determination of blocked public funds to assure the right to the teenager´s school transport, founded on the Federal Constitution, on the Constitution of the State of Rio Grande do Sul, on the Law of Guidelines and Bases of National Education and on the Statute of the Child and the Teenager. The decision is founded on the objective dimension of the fundamental right to education and to the protection of the child and of the adolescent.

Reference to International Law: art. 13 of the International Pact on Economic, Social and Cultural Rights (enacted by Decree n^r. 591, of 06.07.1992) and the World Declaration on Education for Everybody, signed in Thailand in March 1990.

Relation with preterit case law/Elements of Innovation: AI 677.274/SP, AI-AgR 474.444/SP; RE-AgR 410.715/SP, RE 431.773/SP and RE 436.996/SP.

Source: www.stf.jus.br

Key words: right to the teenager´s school transport – principle of the prohibition of insufficient protection – public civil action

22) Duty of assistencial contribution to the union and non-members

Country: Brasil, STF (Supreme Court )

Year of the decision: judged on 07/11/2000

Number of the Decision RE 189.960-3, Rel. Min. Marco Aurélio

Related Social Rights: the duty of assistencial contribution to the union

Articles of the Federal Constitution: art. 8, III and IV

Abstract of Court: “is legitimate the collection of assistencial contribution imposed to the employees indistinctly in favor of the union, provided in collective labor convention, the non-members of the union are compelled to satisfy the mentioned contribution”

Adjudication Method: there was application of art. 513, item “e” and of the Consolidation of the Labor Laws and distinction of the contribution provided in art. 8, inc. IV, Federal Constitution.

Source: MAGANO, Octavio Bueno. Sindicalismo. In: TORRES DA SILVA, Jane Granzoto (Coord.). Constitucionalismo Social. Estudos em homenagem ao Ministro Marco Aurélio Mendes de Farias Melo. LTr, São Paulo: 2003, p. 96

Key words: duty of assistencial contribution to the union; non-members

23) Right to the benefit of assistance with continuous rendering - charge of defining the line of poverty

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 11.09.2007

Number of the Decision: Claim, RCL 3.891-RS, Rel. Ricardo Lewandowski

Related Social Rights: the right to the benefit of assistance with continuous rendering

Articles of the Federal Constitution: art. 1, incise III, 5º, XXXV and 203, V.

art. 196

Abstract of Court: “About claim, with request of restraining order, filed by the Instituto Nacional do Seguro Social – INSS National Institute of Social Insurance against decision, delivered by the Federal Court of the Federal Special Court of Caxias do Sul/RS, that determined the granting of the benefit of assistance in favor of Odete Stein, in the terms of Law 8.742/93. The federal autarchy who filed the claim affirms that the granting of the benefit offended the authority of the judgment delivered by the Supreme Court in ADI 1.232/DF, Rel. by chief judge Min. Nelson Jobim(…)”.

Adjudication Method: the constitutionality of art. 20, § 3 of Law 8.742/93, as per judgment of the ADI 1232, for the general limits for the payment of the benefit by the INSS does not exempt the Judiciary from analyzing the concrete cases to give efficacy to art. 203, V. It was construed based on Complementary Law 111/2001, which put the Executive Power in charge of defining the line of poverty, on Law 9.533/97 and on Law 10.689/2003, modifiers of the criterion for the objective verification of miserability.

Relation with preterit case law/Elements of Innovation: Adi 1232. See also: Rcl 4145/RS, Rel. Min. Marco Aurélio, judged em 30/04/2006 e Rcl 4115/RS, Rel. Min. Carlos Britto, judged on 08/06/2006.

Source: www.stf.jus.br and ZOCKUN, Carolina Zancaner. Da intervenção do Estado no domínio social. Malheiros, São Paulo: 2009, pp. 109 and 110.

Key words: right to the benefit of assistance with continuous rendering - charge of defining the line of poverty

24) Right to the reserve of a vacancy of applicant - person with disability in public contest

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 13.11.2007

Number of the Decision: Appeal to the Brazilian Supreme Court in Writ of Mandamus, RMS 26.071/DF, Rel. Min. Carlos Britto

Related Social Rights: the right to the reserve of a vacancy of applicant with deficiency in public contest

Articles of the Federal Constitution: art. 1, IV and 37, VIII

Abstract of Court: Reserve vacancy for applicant with monocular vision – deficiency that prevents the comparison between both eyes to know which of them is “better”, in public contest.

Adjudication Method: refers to the vote to the fraternal society provided in the preamble of the Federal Constitution, the social value of work provided in art. 1, inc. IV, CF and art. 5, § 2 of Law 8.112/90.

Source: www.stf.jus.br e LEAL, Rogério Gesta. Condições e possibilidades eficaciais dos direitos fundamentais sociais. Os desafios do Poder Judiciário. Livraria do Advogado, Porto Alegre: 2009, p. 129

Key words: disability – public contest

25) Right to strike of public officers – writ of injunction

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 25.10.2007

Number of the Decision: M.I. n. 712-8/Pa, Rel. Min. Eros Grau

Related Social Rights: the right to strike of public officers

Articles of the Federal Constitution: art. 5, LXXI, 9º, 37, VII

Abstract of Court: “The access of class entities to the way of the collective writ of injunction is procedurally admissible, provided that legally constituted and working since one year, al least. 2. The Constitution of Brazil recognizes expressly that civil public officers may exercise the right to strike – article 37, incise VII. Law n^r. 7.783/89 provides on the exercise of the right to strike of workers in general, affirmed by article 9 of the Constitution of Brazil. Normative act at first inapplicable to civil public officers. 3. The precept indicated by art. 37, incise VII, of CB/88, requires the edition of normative act to integrate its efficacy. Claims, for purposes of full incidence of the precept, legislative action to concretize the command positivated in the text of the Constitution. (…). Writ of injunction judged with legal basis, to remove the obstacle resulting from the legislative omission and, as also, make feasible the exercise of the right consecrated in art. 37, VII, of the Constitution of Brazil”.

Adjudication Method: there was formulation to supply the lack of regulating rule in the case of the right to strike of public officers. Decided by the self-applicability of the right to strike, considering it as a “fundamental right of instrumental character”. Granted efficacy to art. 37, VII, Federal Constitution.

Relation with preterit case law/Elements of Innovation: the decision conferred effects erga omnes and ultra partes, breaking the former understanding of the Supreme Court related to the Writ of injunction – mi 485/MT and 585/TO (declaration of legislative culpable delay for the right of the public officer to strike), MI 283/DF (declaration of legislative culpable delay with stipulation of term for the National Congress), MI 284/DF, 562/DF and 543/DF (admission of normative solutions), making possible the concretion of the constitutional right with efficacy to art. 37, VII. See also: MI 670/ES, Rel. Min. Maurício Corrêa e MI 708/DF, Rel. Min. Gilmar Mendes, julgados em 25/10/2007.

Reference to Foreign Constitution: art. 18, n^r.1 of the Portuguese Constitution of 1976.

Source: www.stf.jus.br and MORAIS, Carlos Blanco de. Direitos sociais e controlo de inconstitucionalidade por omissão no ordenamento brasileiro: activismo judicial momentâneo ou um novo paradigma? Revista Brasileira Estudos Constitucionais, ano 5, n. 20, p. 211-243, out./dez., Ed. Forum, IBEC, Belo Horizonte: 2011.

Key words: right to strike of public officers; self-executing of the right to strike; writ of injuction

29) Right to minimum wage capable to guarantee his and his family´s vital necessities – Presidential Decree

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 03.11.2011

Number of the Decision: A di 4568, Rel. Min. Cármen Lúcia

Related Social Rights: the right to minimum wage capable to guarantee his and his family´s vital necessities

Articles of the Federal Constitution: art. 7, inc. IV

Abstract of Court: “(…) 1. The constitutional requirement of a formal law to set the value of the minimum wage is satisfied by Law n^r. 12.382/2011. 2. The use of presidential decree, defined by Law n^r.12.382/2011 as an instrument of annunciation and disclosure of the nominal value of the minimum wage from 2012 to 2015 does not disobey the constitutional command put in inc. IV of art. 7 of the Constitution of Brazil. Law n^r. 12.382/2011 defined the value of the minimum wage and its policy of affirmation of new nominal values for the indicated period (art. 1 and 2). The President of the Republic, exclusively, is in charge of applying the indexes legally defined to readjust and increase, and to disclose them by means of decree, so there is no innovation of the juridical order, nor new stipulation of value. 3. Action judged without legal basis”.

Adjudication Method: it was understood that the Presidential Decree does not offend the Federal Constitution.

Relation with preterit case law/Elements of Innovation: Adi 1439-MC/DF, Adi 1442/DF, Adi 1458-MC/DF. The abstract of law of Adi 1439-MC/DF, Rel. Min. Celso de Mello, judged on 22/05/1996, deserves to be reproduced, for it had as adjudication element the fact that the Direct Action of Unconstitutionality did not substitute the Direct Action of Unconstitutionality by omission: “(…). The constitutional clause inscribed in art. 7, IV of the Political Charter – for beyond the proclamation of the social guarantee of the minimum wage – consubstantiates true imposition to produce law which, addressed to the Public Power, has the purpose to link it to the effectiveness of a positive rendering intended to (a) satisfy the essential necessities of the worker and of his family and (b) preserve, by means of periodical readjustments, the intrinsic value of this basic remuneration, conserving its acquisitive power. (…) The insufficience of the value that corresponds to the minimum wage, defined in importance that proves incapable to satisfy the basic vital necessities of the worker and the members of his family, configures a clear noncompliance, even if partial, with the Constitution of the Republic, because the legislator, in such hypothesis, instead of acting as the concretizer subject of the constitutional postulate that guarantees to the worker class a general remuneration prevailing wage (Federal Constitution, art. 7, IV), will be realizing, in an imperfect manner, the social program assumed by the State in the juridical order. (…). Does not correspond to the Supreme Court, however, in the light of the limits set by the Political Chart in unconstitutionality by omission matter (Federal Constitution, art. 103, § 2), the prerogative to issue normative provisions to supply for the inactivity of the legislative body in default. (…) The case law of the Supreme Court, founded on the multiple distinctions that are registered between the abstract control by action and the concentrated fiscalization by omission, was confirmed in the sense of not considering admissible the possibility of conversion of the direct action of unconstitutionality, by positive violation of the Constitution, in action of unconstitutionality by omission, resulting from the negative violation of the constitutional text”.

Source: www.stf.jus.br

Key words: right to minimum wage capable to guarantee his and his family´s vital necessities – Presidential Decree

IACL Project –Social Rights, Library of Social Rights

Country/Court: United Kingdom/ Supreme Court.

Year of Judgment/Nr of Decision: 2012/ UKSC 38.

Related social rights: Right of asylum/ Right to sexual orientation.

Constitutional provisions: No.

Subject: The implementation of freedom of thought and freedom of expression in order to obtain asylum.

Summary of the Decision:

I. Facts of the case

Is it an answer to a refugee claim by an individual who has no political views and who therefore does not support the persecutory regime in his home country to say that the individual would lie and feign loyalty to that regime in order to avoid the persecution to which he would otherwise be subjected? This is the question which arises in these appeals, which form a sequel to this court’s decision in HJ (Iran) v Secretary of State for the Home Department in which it was held that a gay man was entitled to live freely and openly in accordance with his sexual identity and it was no answer to the claim for asylum that he would conceal his sexual identity in order to avoid the persecution that would follow if he did not do so (“the HJ (Iran) principle”). The first appeal concerns RT, SM and AM. The Court of Appeal allowed the appeals of RT, SM and AM on the basis that if individuals are forced to lie about their absence of political beliefs, solely in order to avoid persecution, that is covered by the HJ (Iran) principle and does not defeat their claims for asylum. The second appeal concerns KM. His claim was refused, while his son had been granted asylum in the UK. In the Court of Appeal, although the Secretary of State accepted that the appeal should be allowed because it was arguable that adequate consideration had not been given to the assessment of risk, there was an issue between the parties as to whether the case should be allowed outright or sent back to the Tribunal. The Court of Appeal allowed the appeal and sent the case back for further decision.

The Supreme Court unanimously dismisses the Home Secretary’s appeals in the cases of RT, SM and AM and allows KM’s appeal. The HJ (Iran) principle applies to applicants who claim asylum on the grounds of a well-founded fear of persecution for reasons of lack of political belief. Lord Dyson gives the leading judgment with which Lord Hope, Lady Hale, Lord Kerr, Lord Clarke, Lord Wilson and Lord Reed agree. Lord Kerr also gives a short concurring judgment.

II. The basic considerations of the case

1. a) Right of asylum is an ancient juridical notion, under which a person persecuted for political opinions or religious beliefs in his or her own country may be protected by another sovereign authority, a foreign country, or church sanctuaries (as in medieval times). To be recognised as a refugee, someone must have left his country and be unable to go back because he has a well-founded fear of persecution because of: race; religion; nationality; political opinion; or membership of a particular social group. If someone does not qualify for recognition as a refugee but there are humanitarian or other reasons, he should be allowed to stay in the UK with temporary permission. In the United Kingdom, the Asylum and Immigration Tribunal (AIT) was a tribunal constituted with jurisdiction to hear appeals from many immigration and asylum decisions. It was created on 4 April 2005, replacing the former Immigration Appellate Authority (IAA), and fell under the administration of the Tribunals Service. On 15 February 2010, the Tribunal was abolished and its functions transferred to the new Asylum and Immigration Chamber of the First-tier Tribunal created by the Tribunals, Courts and Enforcement Act 2007. The Special Immigration Appeals Commission (SIAC) has been set up to hear appeals against removal of potential deportees in high security cases. The information given to appellants and their representatives is limited as compared to other removal hearings.

1. b) The guarantee of freedom of thought, conscience and religion under article 9 of the European Convention on Human Rights protects the indifferent or unconcerned, and extends to the right not to hold thoughts or beliefs and not to give expression to them. In this context, sexual orientation is a relatively recent notion in human rights law and practice and one of the controversial ones in politics. Prejudices, negative stereotypes and discrimination are deeply imbedded in our value system and patterns of behaviour. The main principles guiding the rights approach on sexual orientation relate to equality and non-discrimination. Moreover, several European Union laws offer protection from discrimination based on sexual orientation and additional requirements refer to the human rights situation in accession countries, e.g. Article 13 of the EC Treaty, the Framework Directive on equal treatment in employment and the article 21 (1) of the EU Charter of Fundamental Rights. Finally, the European Parliament (EP) passed several (non binding) resolutions on human rights and sexual orientation, the first, adopted in 1984, calling for an end to work related discrimination on the basis of sexual orientation.

The Supreme Court therefore examines: (1) whether the HJ (Iran) principle can apply to an individual who has no political beliefs and who is obliged to pretend to support a political regime in order to avoid the persecution that he would suffer if his political neutrality were disclosed; and finally (2) whether, in the light of the country guidance given in RN, there is a real risk that such a person would face persecution on the grounds that he would be perceived to be a supporter of MDC.

Adjudication method: Reference to the views of all Lords who heard the case in conjunction with the reference to former jurisprudence.

Reference to other constitutional courts: No.

Reference to International Law: No.

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication method. Furthermore, it refers to former jurisprudence of other Courts, e.g. the decision of the Asylum and Immigration Tribunal (“AIT”) in RN (Returnees) Zimbabwe CG [2008] UKAIT 00083, the decision of the Upper Tribunal in EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC), the decision of the European Court of Human Rights (Kokkinakis v Greece (1993) 17 EHRR 397), Buscarini and others v San Marino (1999) 30 EHRR 208.

Bibliography: Home Office Border Agency http://www.ukba.homeoffice.gov.uk, Sexual Orientation and Human Rights http://www.hrea.org/index.php?doc_id=432, D. Sanders, Human Rights and Sexual Orientation in International Law, International Journal of Public Administration, 25(1), 2002.13.

Key words: Right of asylum, right to sexual orientation, freedom of thought, persecution.

Commentator/contact details: Despina Tziola, Aristotle University of Thessaloniki, Greece, deppytziola@hotmail.com.

IACL Project –Social Rights, Library of Social Rights

Country/Court: European Union/ Court of Justice of the European Union

Year of Judgment/Nr of Decision: 2011/ C-451/11 (Natthaya Dülger v. Wetteraukreis).

Related social rights: Right of residence, family reunification.

Constitutional provisions: No.

Subject: Reference for a preliminary ruling under Article 267 TFEU from the Verwaltungsgericht Giessen (Germany), made by decision of 11 August 2011, received at the Court on 1 September 2011 in order to interpret the first indent of the first paragraph of Article 7 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association (‘Decision No 1/80’).

Summary of the Decision:

I. Facts of the case

The first paragraph of article 7 of Decision No 1/80 provides that the members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State, who have been authorised to join him shall be entitled – subject to the priority to be given to workers of Member States of the Community – to respond to any offer of employment after they have been legally resident for at least three years in that Member State. In this legal context the Verwaltungsgericht Giessen decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling, if a Thai national, who was married to a Turkish worker duly registered as belonging to the labour force of a Member State and who, after receiving authorisation to join him, lived with him without interruption for more than three years, may rely on the rights arising from the first indent of the first paragraph of Article 7 of Decision No 1/80 with the consequence that she has a right of residence because of the direct effect of that provision.

The Court of Justice of the European Union has decided that the first paragraph of Article 7 of Decision No 1/80 of 19 September 1980 on the development of the Association must be interpreted as meaning that a member of the family of a Turkish worker, who is a national of a third country other than Turkey, may invoke, in the host Member State, the rights arising from that provision, where all the other conditions laid down by the provision have been fulfilled.

II. The basic considerations of the case

1. a) The right of residence of members of a family of a Turkish worker duly registered as belonging to the labour force of a Member State, which follows from Article 7 of Decision 1/80, grants family members residing with the worker tiered rights of access to the labour market of the host Member State. The ECJ has held that residence rights are implicitly guaranteed for the purposes of enabling family members to exercise such rights. The Court has developed the principle that, subsequent to the initial decision made by the host Member State permitting entry for the purposes of work and/or family reunion, issues of residence and conditions of stay are subject to the conditions contained under the association arrangements. No definition of family members is provided in any of the relevant instruments. It would appear that Member States also retain ultimate control over the scope of definition of family members wishing to reside with the migrant worker. However, guidance may be sought from Article 10 of Regulation 1612/68, which defines the family members of a worker as: (a) his spouse and their descendants who are under the age of 21 years or are dependants; (b) dependent relatives in the ascending line of the worker and his spouse. That provision was repealed but Article 6(2) and Article 7(2) of Directive 2004/38 also establish the principle that members of the family of a citizen of the European Union who are not nationals of a Member State have the right to accompany or join him in the host Member State.

1. b) Another important point is the family reunification. According to the Court, family reunification plays a central role in the scheme introduced by the first paragraph of Article 7 of Decision No 1/80. As it is an essential way of making family life possible, the family reunification enjoyed by Turkish workers who belong to the labour force of the Member States contributes both to improving the quality of their stay and to their integration in those Member States and, therefore, promotes social cohesion in the society concerned. The purpose of this first paragraph is to create conditions conducive to family unity, first by enabling family members to be with a migrant worker and then by consolidating their position by granting them the right to obtain employment in the host state. Therefore, the host state could require actual cohabitation by the Turkish workers and their family members during the first three years, even where there were accusations of domestic violence, subject to absences for a reasonable period and for legitimate reasons in order to take holidays or visit family in Turkey.

The Court of Justice of the European Union therefore examines: (1) whether under Article 2(1) of the Association Agreement the Contracting Parties took as their basis grounds that go well beyond considerations of a purely economic nature; (2) whether it is clear the determination of the scope of ‘member of the family’ for the purposes of the first paragraph of Article 7 of Decision No 1/80, irrespective of their nationality; and finally (3) whether any limitation on the right to family reunification, which would necessarily result if the rights conferred under the first paragraph of Article 7 of Decision No 1/80 were applied only to members of the family who have Turkish nationality, would undermine the objective of that provision.

Adjudication method: Reference to the right of residence of members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State in conjunction with the family reunification.

Reference to constitutional courts: No.

Reference to International Law: The EEC-Turkey Association (The Association Agreement, the Additional Protocol, Decision No 1/80), Regulation No 1612/68, Directive 2004/38/EC.

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication method. There is a relation with former jurisprudence, such as Case C‑192/89 Sevince [1990] ECR I‑3461, and Joined Cases C‑7/10 and C‑9/10 Kahveci [2012] ECR I‑0000, Case C‑275/02 Ayaz [2004] ECR I‑8765, Case C‑467/02 Cetinkaya [2004] ECR I‑10895, Case C‑171/95 Tetik [1997] ECR I‑329, Case C‑351/95 Kadiman [1997] ECR I‑2133, Case C‑262/96 Sürül [1999] ECR I‑2685, Case C‑329/97 Ergat [2000] ECR I‑1487, Case C‑65/98 Eyüp [2000] ECR I‑4747, Case C‑325/05 Derin [2007] ECR I‑6495 and Case C‑303/08 Bozkurt [2010] ECR I‑0000, Case C‑308/93 Cabanis-Issarte [1996] ECR I‑2097, and Case C‑189/00 Ruhr [2001] ECR I‑8225.

Bibliography: C. Barnard, The Substantive Law of the EU – The Four Freedoms, Oxford University Press, 2007.521.

Key words: right of residence, family reunification.

Commentator/contact details: Despina Tziola, Aristotle University of Thessaloniki, Greece, deppytziola@hotmail.com.

IACL Project –Social Rights, Library of Social Rights

Country/Court: Germany/ Bundessozialgericht.

Year of Judgment/Nr of Decision: 2012/ B11AL21/11R.

Related social rights: Right to work.

Constitutional provisions: No.

Subject: Evaluation of qualifications in performance of unemployment assistance.

Summary of the Decision: Classification of unemployed in Qualification Groups in order to receive unemployment assistance.

I. Facts of the case

According to § 132 SGB III (Sozialgesetzbuch SGB – Social Code), the allocation of employment to the qualification groups makes expressly conditioned on that there are appropriate formal or professional qualifications for exercise of employment ("require"). The qualifying groups of § 132 paragraph 2 S 2 SGB III are its basic structure to such a way that a certain level of training of the person concerned is allocated in a certain price. However, in accordance with § 75 AMG (Arzneimittelgesetz AMG - Medicines Act), that such expertise alternatively pharmacists and people who have with a university degree does not alter the fact that the activity as a pharmaceutical consultant "requires" such a qualification and is not the meaning of § 132 paragraph 2 S 2 SGB III. According to the facts, the applicant took a grant in unemployment assistance on the basis of Qualifying Group 2, without having a university degree as Pharmaceutical Consultant.

The Federal Social Court has decided that according to these provisions the National Social Court has wrongly confirmed the judgment of the Social Court, after which the applicant should be granted for the period from 16.9.2007 to 29.3.2008 higher unemployment assistance on the basis of Qualifying Group 2.

II. The basic considerations of the case

1. a) The right to work is a fundamental social right. One of its aspects is unemployment assistance. Unemployment assistance is a state benefit in the sense of social assistance payable to the needy unemployed who have no entitlement to unemployment benefit because they have not fulfilled the qualifying period or who, although they meet the other eligibility criteria (Promotion of Employment Act §§ 134 ff.), have already exhausted their entitlement. In contrast to unemployment benefit, unemployment assistance is financed not from contributions but by the Federal Government from general tax revenues. Notably, unemployment assistance is governed by the principle of subsidiarity when the unemployed person has at their disposal other sources of income or other subsistence entitlements in respect of their immediate family. Thus, any monetary income and assets of unemployed individuals are taken into account. Furthermore, the unemployed are obliged to remedy their state of need by first asserting all other viable subsistence entitlements. Unemployment assistance currently amounts to 58 or 56 per cent. of the last monthly net pay.

1. b) In this case, there is another important consideration as arises the question if there is a kind of discrimination as an aspect of principle of equality. Specifically, according to § 132 SGB III and § 75 AMG (Medicines Act), if someone wants to take unemployment assistance in Qualifying Group 2, he should have a university degree of Pharmaceutical Consultant. Otherwise, it cannot be considered as main activity, if someone has only expertise, such as the applicant. Another aspect of discrimination in this case referred at the beginning of the judgment, as the applicant had to leave the benefits of unemployment assistance, because she became a mother. Consequently, there is multiple discrimination at the same person: a) She cannot take unemployment assistance in Qualifying Group 2, as she has only expertise but not a university degree (discrimination based on education level), b) She cannot take the benefits of unemployment assistance, as she became a mother (gender discrimination, because it wouldn’t have happened if she was a man). However, the Federal Social Court didn’t refer at these discriminations.

The Federal Social Court therefore examines: (1) whether the decisions of the lower courts (National Social Court and Social Court) comply with the law; and finally (2) the law in accordance with jurisprudence and bibliography.

Adjudication method: Reference to the law in conjunction with former jurisprudence, bibliography and certain websites.

Reference to other constitutional courts: No.

Reference to International Law: No.

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication method and has referred to former jurisprudence, e.g. Senate judgment of 3.12.2009 - B 11 AL 42/08 R - BSGE 105, 94 = SozR 4-4300 § 132 No. 4; BSG, judgment of 18.5.2010 - B 7 AL 49/08 R - SozR 4-4300 § 122, as LSG North Rhine-Westphalia, Case 9.2 .2012 - L 9, AL 12/11 – Juris; LSG Baden-Wuerttemberg, Judgment of 23.1.2009 - L 4 R 738/06; LSG Baden-Wuerttemberg, judgments of 8.10.2010 - L 4 Kr 5196/08; LSG Berlin-Brandenburg, judgment of 26.8.2011 - L 3 R 142/09; BSGE 100, 295 = SozR 4-4300 § 132 No. 1, § 50 et seq; BSGE 105, 94 = 132 SozR § 4-4300 No. 4, § 18 et seq; SozR § 4-4300 No. 132 § 7 29; LSG North Rhine-Westphalia on 09/02/2012 - L 9, AL 12/11; BSGE 100, 295 SozR = 4-4300 § 132 No. 1; BSG SozR 4-4300 § 132 No. 3; BSG SozR 4-4300 § 132 No. 7 § 24 ff. It is worth noting that the Court has referred to certain websites (www.mtawerden.de/mta-ausbildung.html, http://berufenet.arbeitsagentur.de/berufe/result/short) and bibliography (e.g. Maischner in Community Come, Book III, § 132 § 7, as individual comments March 2010; Valgolio in Hauck / Noftz, Book III, K § 132 § 37, Stand Single commenting September 2010, Rolfs in Gagel, Book II / SGB III, § 132 SGB III, paragraph 7, 8; similar; Coseriu / Jacob Mutschler / Bartz / Schmidt De Caluwe, Book III, 3rd Aufl 2008, § 132 paragraph 15: Rokita in Schoenefeld / rim / Wanka, Book III-employment promotion, § 132 § 29, as individual comments July 2006) in order to ground its decision.

Bibliography: a) Klaus Niesel, Jürgen Brand: Sozialgesetzbuch Arbeitsförderung (SGB III). Kommentar. 5. Auflage. Verlag C. H. Beck, München 2010, b) Nathan L. Essex, A practical guide for Education Leaders: Chapter 9 Discrimination in Employment, Fourth Edition, School Law and the Public School Essex, Allyn Bacon, 2010.

Key words: unemployment assistance, right to work, university degree.

Commentator/contact details: Despina Tziola, Aristotle University of Thessaloniki, Greece, deppytziola@hotmail.com.

IACL Project –Social Rights, Library of Social Rights

Country/Court: Germany/ BVerfGe.

Year of Judgment/Nr of Decision: 2010/Hartz IV BVerfGE 125, 175.

Related social rights: Right to social assistance/ Right to a minimum of subsistence.

Constitutional provisions: Articles 1.1 and 20.1 of German Constitution.

Subject: Application of the principles of minimum subsistence and human dignity in order to discern the constitutionality of long-term unemployment assistance.

Summary of the Decision:

I. Facts of the case

The Fourth Act for Modern Services on the Labour Market of 24 December 2003 (so-called „Hartz IV legislation“) merged the (long-term) unemployment assistance (Arbeitslosenhilfe) and the social assistance benefits in a uniform, means-tested allowance. The benefits are only granted where no sufficient means of one’s own, especially income or property, exist. This resulted as from 1 January 2005 in a rounded amount of €311 (90 per cent) for spouses, civil partners and live-in partners, in a rounded amount of €207 (60 per cent) for children before completing the age of 14 and in an amount of €276 (80 per cent) for children from the beginning of their 15th year of age.

The Federal Constitutional Court has decided that these provisions do not comply with the constitutional requirement following from Article 1.1 of the Basic Law (Grundgesetz – GG) in conjunction with Article 20.1 GG to guarantee a subsistence minimum that is in line with human dignity.

II. The basic considerations of the case

1. a) The fundamental right to guarantee a subsistence minimum that is in line with human dignity, which follows from Article 1.1 GG in conjunction with the principle of the social state under Article 20.1 GG, ensures every needy person the material conditions that are indispensable for his or her physical existence and for a minimum participation in social, cultural and political life. Beside the right from Article 1.1 GG to respect the dignity of every individual, which has an absolute effect, this fundamental right from Article 1.1 GG has, in its connection with Article 20.1 GG, an autonomous significance as a guarantee right. This right is not subject to the legislature’s disposal and must be honoured; it must, however be lent concrete shape, and be regularly updated, by the legislature. The legislature has to orient the benefits to be paid towards the respective stage of development of the polity and towards the existing conditions of life. As regards the types of need and the means that are necessary to meet such need, the extent of the constitutional claim to benefits cannot be directly inferred from the constitution. It is for the legislature to lend it concrete shape; it has latitude for doing so. In order to lend the claim concrete shape, the legislature has to assess all expenditure that is necessary for one’s existence consistently in a transparent and appropriate procedure according to the actual need, i.e. in line with reality.

1. b) The legislature’s latitude for assessing the subsistence minimum corresponds to a cautious review of the provisions in non-constitutional law by the Federal Constitutional Court. As the Basic Law itself does not admit of exactly quantifying the claim, substantive review is restricted, as regards the result, to ascertaining whether the benefits are evidently insufficient. Within the material range which is left by the review of evident faultiness, the fundamental right to guaranteeing a subsistence minimum that is in line with human dignity cannot provide any quantifiable guidelines. It requires, however, an examination of the bases and of the assessment method of the benefits to ascertain whether they do justice to the objective of the fundamental right. In order to ensure a traceability of the extent of the statutory assistance benefits that is commensurate with the significance of the fundamental right and to ensure the review of the benefits by the courts, the assessment of the benefits must be viably justifiable on the basis of reliable figures and plausible methods of calculation.

The Federal Constitutional Court therefore examines: (1) whether the legislature has taken up and described the objective of ensuring an existence that is in line with human dignity in a manner that does justice to Article 1.1 GG in conjunction with Article 20.1 GG; (2) whether it has, within the boundaries of its latitude, chosen a fundamentally suitable method of calculation for assessing the subsistence minimum; (3) whether in essence, it has completely and correctly ascertained the necessary facts; and finally (4) whether it has kept within the boundaries of what is justifiable within the chosen method and its structural principles in all stages of calculation, and with plausible figures. To make this review by the Federal Constitutional Court possible, the legislature is obliged to plausibly disclose the methods and stages of calculation employed in the legislative procedure. If the legislature does not sufficiently meet this obligation, the ascertainment of the subsistence minimum is no longer in harmony with Article 1.1 GG already due to these shortcomings.

Adjudication method Reference to the principle of Social State in conjunction with the protection of human dignity.

Reference to other constitutional courts: No.

Reference to International Law: No.

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication method. However, it is the first time that a legislation has been found unconstitutional on the basis of non compliance with Social State principle alone. In addition, the court has reversed the burden of proof regarding the necessary economic means for the fulfilment of the related rights, imposing to the legislator to proof that it has used objective and scientific elements in order to specify the minimum of subsistence for the related allowance.

Bibliography: S. E. Casenote, The Fundamental Right to the Guarantee of a Subsistence Minimum in the Hartz IV Case of the German Federal Constitutional Court, German Law Journal, 2011.1961.

Key words: Minimum of subsistence, human dignity, principle of the social state.

Commentator/contact details: George Katrougalos, Democritus University of Thrace, Greece, gkatr@otenet.gr.

IACL Project –Social Rights, Library of Social Rights

Country/Court: Switzerland/ Federal Court.

Year of Judgment/Nr of Decision: 1995/V. v. Einwohnergemeinde X. und Regierungsrat des Kantons Bern, BGE 121 I 367.

Related social rights: Right to a minimum level of subsistence [“conditions minimales d’existence”].

Constitutional provisions: “Unwritten constitutional right”.

Subject: Τhe exclusion of three aliens from social assistance was considered to be a violation of an implied constitutional right to a minimum level of subsistence, a necessary for an existence in conformity with human dignity

Summary of the Decision:

I. Facts of the case

The three brothers V. lived since 1980 together with their mother as recognized refugees in Switzerland. In 1987, they were condemned to prison sentences and an expulsion order was issued against them. After their expulsion to Czechoslovakia, the asylum granted to them lapsed in accordance with Swiss legislation. In September 1991 the three brothers re-entered Switzerland illegally. They have since lived in X. Renewed expulsion to (now) the Czech Republic has not been possible because the brothers V. had had their citizenship withdrawn; in order to regain it, they would have to make an application for this, which the brothers V. have however not done. Following their re-entry to Switzerland, the brothers V. applied to the municipality of X. for social support, which the municipality as well as the executive authorities of the Bern canton (Regierungsrat – Government Council) refused. The Bern authorities maintained that the brothers V. had it in their power to apply for renaturalization, which would allow them to return to the Czech Republic and take up gainful employment there. By their refusal to make such an application they were deliberately maintaining their state of need. As a result, the authorities argued that the welfare benefits could be fully withdrawn from them. Against the order of the Government Council, the brothers V. lodged a constitutional complaint on 5 December 1994.

The Federal Court (Bundesgericht) held that the exclusion of three aliens from social assistance was a violation of an implied constitutional right to a minimum level of subsistence. The right encompasses what is necessary for an existence in conformity with human dignity and can be invoked by both Swiss citizens and aliens. The Court dismissed the abuse-of-rights claim, holding that it could not be required from the applicants to apply to the Czech authorities for renaturalization. The Federal Court thus found the constitutional complaint to be justified and set aside the decision of the Bern’s Government Council.

II. The basic considerations of the case

1. …

2. a) The federal Constitution does not explicitly provide for a fundamental right to a subsistence guarantee. The Constitution also includes however unenumerated constitutional rights. [Previous cases] have assumed a guarantee of freedoms not mentioned in the Constitution in relation to powers constituting a prerequisite for the exercise of other freedoms (explicitly mentioned in the Constitution), or otherwise evidently indispensable components of the democratic constitutional order of the Federation. In order not to overstep the boundaries set for the constitutional judge, the Federal Court has always also tested whether the guarantee in question already corresponded with a widespread constitutional reality in the cantons and was upheld by a general consensus.

b) The guaranteeing of elementary human needs like food, clothing and housing is the condition for human existence and development as such. It is at the same time an indispensable component of a constitutional, democratic polity. To that extent, the subsistence guarantee fulfils the preconditions for being guaranteed as an unwritten constitutional right.

The further question then arises whether such a fundamental right is upheld by a general consensus. This consensus is to be measured not exclusively by the written constitutional law of the cantons... It may also result from the practice actually followed and from constitutional scholarship or from other sources. As far as written cantonal constitutional law is concerned, two cantonal Constitutions explicitly guarantee a fundamental right to a subsistence guarantee. Other cantonal Constitutions have provided for social assistance in the form of constitutional policy clauses or legislative mandates. The recent constitutions of five other cantons clearly refrain from establishing an individual legal entitlement to a subsistence guarantee. Nonetheless, this is hardly based on a fundamental reservation, but more on the consideration that State social assistance has by its essence a subsidiary character and requires statutory regulation. At the statutory level, the position adopted in all cantons, is that those in need are to be given assistance where the preconditions are met. The principle that the citizen who has fallen into economic need must be supported has long been known to Swiss law; it goes back to the sixteenth century. The Federal Court for its part has in older decisions already stated that it is both a precept of humanity and a duty inherent in the purpose of the modern State to protect persons on its territory, where necessary, from physically perishing.

Legal scholars virtually unanimously recognize the fundamental right to a subsistence guarantee, generally holding it an unwritten constitutional right. Legal scholars also refer, however to various other constitutional foundations: the constitutional principle of human dignity, which guarantees every person of what they can expect from the community because of their status as human beings; the right to life as a core content of personal freedom, which would no longer be guaranteed were the most minimum prerequisites for survival not ensured; personal freedom in its manifestation as a guarantee of all elementary aspects of personality development; the equality principle, seen as also encompassing the function of guaranteeing a minimum of material justice; finally, the competence norm, according to which those in need are to be supported by the canton where they reside, which can also be understood as an entitlement to a fundamental right.

c) If it can accordingly be taken that a constitutional right to a subsistence guarantee is supported by a wide-ranging consensus, the further question arises as to the justiciability of this right. Whereas fundamental rights as defensive entitlements raise no problems in this connection, entitlements to benefits presuppose that they are adequately defined and can be concretized and implemented by the judge with the procedures and means at his disposal. In this connection, the judge has to comply with the functional bounds on his competence. He has not, in view of the scarcity of State resources, the authority to set priorities in allocating resources. Accordingly, only a minimum of State benefit [“Minimum staatlicher Leistung”] can be directly required as a fundamental right and be justiciable.

The fundamental right to a subsistence guarantee meets these justiciability requirements. It is as such oriented to the minimum required as a fundamental right (assistance in situations of need). The associated State expenditure is recognized on the basis of social assistance legislation in the cantons; it requires no further financial policy decisions. What constitutes an indispensable prerequisite for a life in accordance with human dignity is clearly recognizable and accessible to judicial determination. What is at issue here is not, however, a guaranteed minimum income. All that is constitutionally required is that which is essential for an existence in accordance with human dignity and able to guard against a situation where people are reduced to beggars, a condition unworthy of being called human. It is in the first place a matter for the [political branches of the State] on the basis of legislation to determine the nature and extent of the benefits required in the specific case. In this connection, both cash benefits and benefits in kind come into consideration.

d) Where a fundamental right is based on human rights, it is due both to Swiss citizens and foreigners. … [It is] both a precept of humanity and also a duty inherent in the purpose of the modern State to protect persons on its territory where necessary against physically perishing. The scope of the fundamental right to a subsistence guarantee is thus not confined solely to Swiss nationals; it also extends to foreigners, irrespective of their status of residence.

e) …

3. a) The support requirements are probably of a different nature, and the benefits may also be differently assessed in the case of a merely de facto stay of transient nature. The refusal of any support cannot however be reconciled with the constitutional right to a subsistence guarantee.

b) Abuse of rights is present where a legal institution is used, contrary to its purpose, to realize interests that that legal institution is not intended to protect. Social assistance has the purpose of preventing and removing situations of need. The causes of the need do not come into play. The complainants cannot be held responsible for their maintenance themselves, since they are not entitled to be gainfully employed in Switzerland. If in this position they apply for welfare benefits they are not resorting to this legal institution for a purpose foreign to it.

c) The Government Council argues that the complainants would be able to apply to the Czech authorities for renaturalization, which would enable them to return to that country and be gainfully employed there. Whether this would be possible today, according to Czech law, seems doubtful. In any event, no abuse of right can be established in the fact that the complainants do not want to regain Czech citizenship in light of the facts of the present case: they have been recognized as refugees since 1980, when they left their homeland; they have lived for many years in Switzerland; their mother has become a Swiss citizen; and as recognised refugees they were not able to maintain contact to their home country.

d) … The complainants are not refusing to make an application for renaturalization to the Czech authorities because they want to draw maintenance benefits from the X municipality. They are doing so at most because they want to stay in Switzerland, the country where they have, with a brief interval, lived since 1980 and that in the past recognized them as refugees. Their state of need is a consequence of the fact that they can again be expelled and are not allowed to be gainfully employed [in Switzerland]. Given this factual position, however, they are not resorting to the legal institution of social assistance contrary to its purpose. Manifest abuse of rights is not present. The decision challenged accordingly infringes the constitutional right to a subsistence guarantee.

Adjudication method: Reliance on an “unwritten constitutional right” –[ungeschriebenes Verfassungsrecht] as a prerequisite for the exercise of explicitly guaranteed rights; additional reference to the constitutional guarantees of human dignity, the right to life, personal freedom, the equality principle, allocation of competences between state authorities concerning social assistance; the guaranteeing of elementary human need as “an indispensable component of a constitutional, democratic polity”.

Reference to other constitutional courts: No.

Reference to International Law: No.

Relation with former jurisprudence/Innovative elements: While in previous cases, the Swiss Federal Court, Switzerland’s highest Court, had already discerned a state obligation to provide social assistance, in this seminal 1995 case, it recognized for the first time an individual claim that is subject to judicial enforcement. Thus, the V. case and its progeny served as a catalyst for the explicit guarantee of the “right to assistance and care, and to the financial means required for a decent standard of living” for persons in need and unable to provide for themselves among a handful of social rights in the 1999 Constitution (Art. 12). However, both under the previous and the current Constitution, the Swiss Federal Court has in the meantime adopted a rather restrictive approach that tends to overemphasize subsidiarity considerations as a prerequisite of constitutional protection. Furthermore, it reduces the constitutionally guaranteed mimimum level of subsistence for foreigners without a residence permit in Switzerland to benefits in kind, such as food, housing and sanitary conditions.

Bibliography:.

- D. Sprumont, The Unwritten Constitutional Right to Subsistence, Brief Comment of 27 October 1995 Judgment of the Swiss Federal Court in the Perspective of a Right to Health Care, European Journal of Health Law 5 (1998), 411-414.

- A. Grüner, Der verfassungsrechtliche Anspruch auf Gewährleistung des Existenzminimums, Journal für Rechtspolitik 2009, 97-114, 202-213.

Key words: Minimum of subsistence, human dignity, social assistance.

Commentator/contact details: Stylianos Koutnatzis, Democritus University of Thrace, Greece, skoutnatzis@yahoo.gr.

IACL Project –Social Rights, Library of Social Rights

Country/Court: Italy/ Corte Costituzionale.

Year of Judgment/Nr of Decision: 217/1988.

Related social rights: Right to housing, Principle of subsistence.

Constitutional provisions: Article 47 of the Italian Constitution.

Subject: Implementation by the legislator of the right to housing as a fundamental one in order to strengthen its enjoyment.

Summary of the Decision:

I. Facts of the case

In this case the Italian Constitutional Court had the opportunity to examine the constitutionality of Law 891/1986 concerning the acquirement of soft loans by workers in order to purchase their primary residence. The provinces of Trento and Bolzano considered the conditions for the receipt of these loans to be incompatible with relevant provincial legislation thus invading the area of the exclusive legislative and administrative authority of Italian provinces (Decree N. 381/22 March 1974).

The Italian Constitutional Court decided that the Law 891/1986 was constitutional and that the complaint was ill-founded because the legislature had the competence and the obligation to implement a fundamental social right as the right to housing thus strengthening its enjoyment.

II. The basic arguments of the case

1. a) The right to housing is not expressly guaranteed in the Italian Constitution, but it has been gradually recognized as a fundamental social right via the jurisprudence of the Italian Constitutional Court. Its constitutional foundation can be traced in Arts 2, 3 and 32 in the sense that the right to housing furthers the expression of human personality (Art. 2 of the Italian Constitution), of equal dignity (Art. 3) and of the right to health (Art. 32). Its foundation can be also located in Arts. 42 and 47 cl. 2 of the Italian Constitution which specifically states that: ‘The Republic promotes house and farm ownership and direct and indirect shareholding in the main national enterprises through the use of private savings’ as well as in Art. 14 of the Italian Constitution guaranteeing that: ‘The home is inviolable’ (Art. 14 §1) and that the ‘personal domicile is inviolable’ (Art. 14 §2) whilst according to the Court the right to housing is also protected under Art. 36 of the Italian Constitution under the penumbra of the subject’s dignified existence. In this constitutional framework the right to housing has been acknowledged by the Italian Constitutional Court as the right to the availability of a residence, guaranteed by public authorities.

b) In the present case the Court considered the following. In the beginning the Court held that: i) the constitutional principle of subsistence requires the provision of state measures of various kinds that aim at realizing the right to housing and b) the national legislature must not abdicate the constitutionally founded autonomous legislative authority of the provinces except for reasons of state interest, which is “imperative and compelling” and by introducing rules that are deemed to be crucial for the implementation of these interest. In this line of thinking the question to be answered was whether the statute in question was furthering a compelling national interest.

The Court applied a strict scrutiny test. Firstly it observed that the very purpose of the statute was to encourage workers and specifically the younger ones to acquire a primary residence. According to the Court this legislative goal favored the realization of the state form and the constitutional system as a social and democratic. The Court considered that the right to housing (diritto all’abitazione) as provided in Art. 47 cl. 2 of the Italian Constitution is one of the essential requirements for the characterization of the democratic state as social. Moreover, from the constitutional guarantee (Art. 47 cl. 2) the Court reached the following conclusion: ‘The Art. 47 cl. 2 provided that the Republic should render effective the right to housing thus considering the satisfaction of this right is imperative and demands the joint commitment of the whole government (state, autonomous regions or provinces, local authorities etc.)’. Based on these thoughts the Court concluded that the scope of the statute in question was to ensure a level of guarantee for the entire national territory for a fundamental social right, i.e. the right to housing. The goal of the legislature was to create a minimum guarantee of this right for all the citizens of the Republic by national legislation, thus assuring the maximum effectiveness to a fundamental social right. For this reason the coordinated effort between all public authorities was needed. In this frame the provisions of Law 891/1986 were deemed constitutional.

According to the conclusion of the Court regarding specifically the nature and value of the right to housing: ‘The right to housing represents one of the fundamental features of the Democratic State enshrined by the Constitution. The task to provide the minimum conditions of a Social State and guarantee to the largest possible number of citizens a fundamental social right, such as the one to housing, contributes to the achievement of a greater level of human dignity and cannot be renounced by the state under any circumstances’.

Adjudication method: Reference to the fundamental character of the right to housing and thus to the need of its minimum effective protection in conjunction with the enhanced protection of human dignity and the Social State..

Reference to other constitutional courts: No.

Reference to International Law: No.

Relation with former jurisprudence/Innovative elements: There have been previous judgements related to the protection of the right to housing in the jurisprudence of the Italian Constitutional Court. What the Italian Constitutional Court underlined for the first time was that the guarantee of the right to housing was a fundamental one and thus imposed on the legislator the obligation to provide it with a minimum of effectiveness. According to this line of thinking it would be the task of the legislature to provide a level of implementation for the enjoyment of this right in order to create the minimum conditions for preserving the Social State and safeguarding the citizens’ human dignity.

Bibliography (general): Giovanni Bianco, Sicurezza sociale nel diritto Pubblico cops, in Digesto IV, disc, pubbli., Utet, Torino, 1991, XIV, Felice Roberto Pizzuti (Ed), Rapporto sullo stato sociale 2010. La “grande crisi” dell 2008 e il welfare state, Academica Universa Press, Milano, 2010.

Key words: Right to housing, equal dignity, human dignity, right to personality, social state, fundamental social right, dignified existence.

Commentator/contact details: Christina Akrivopoulou, Democritus University of Thrace, Greece, akrivopoulouchristina@gmail.com.

IACL Project –Social Rights, Library of Social Rights

Country/Court: Germany/ BVerfG.

Year of Judgment/Nr of Decision: 2012/

Remuneration of

professors, 2 BvL 4/10.

Related social rights: Maintenance principle as part of the “traditional principles of the professional civil service”.

Constitutional provisions: Article 33.5 of German Constitution.

Subject: The Court stateted that the remuneration received by the professors paid according to salary scale W 2 in Hesse infringes the constitutional maintenance principle (Alimentationsprinzip), i.e. the state’s obligation to take care of civil servants’ welfare.

Summary of the Decision:

I. Facts of the case

In 2002, a new remuneration system for professors consisting of fixed basic salaries and variable pay for performance was introduced (remuneration ordinance W). In 2005, the plaintiff in the original proceedings, who was born in 1965, was appointed university professor and assigned an established post in salary scale W 2 of remuneration ordinance W while attaining the status of a civil servant for life.

After unsuccessful objection proceedings, he filed an action against the Land (state) of Hesse in which he sought a declaratory judgment holding that his maintenance from salary scale W 2 does not satisfy the constitutional requirements placed on a remuneration that is in keeping with the office held.

The Second Senate of the Federal Constitutional Court has ruled (with 6:1 votes) that the remuneration received by the professors paid according to salary scale W 2 in Hesse infringes the constitutional maintenance principle (Alimentationsprinzip), i.e. the state’s obligation to take care of civil servants’ welfare, derived from Article 33.5 of the Basic Law (Grundgesetz – GG) and is hence unconstitutional. The legislature is ordered to enact provisions which are in conformity with the Constitution with effect from 1 January 2013 at the latest.

II. The basic considerations of the case

1. a) The maintenance principle obliges the employer to take lifelong care of the civil servant’s welfare and that of his or her family and to pay appropriate maintenance according to the civil servant’s rank, the responsibility involved with his or her office and according to the importance of the permanent civil service for the general public, in keeping with the development of the general economic and financial circumstances and the general standard of living. Linking maintenance to criteria such as rank, which are proper to the civil service and directly related to the office, intends to ensure that the salary is graduated according to the different significance of the offices. Here, comparisons are possible and indicated not only within a given remuneration ordinance but also between the different remuneration ordinances. Furthermore, whether maintenance is in keeping with a given office is determined by comparing it to the income which is earned in comparable positions outside the civil service that can be attained on the basis of a comparable training. However, in view of the systemic differences existing between the civil service and the private sector, the conditions (only) need to be comparable on the whole.

b) The legislature has broad leeway when putting into concrete terms the state’s obligation to take care of civil servants’ welfare in a manner that is in keeping with their office. The guarantee, implied in Article 33.5 GG, of a maintenance that is “in keeping with the office” merely constitutes a constitutional directive for concretization that establishes an obligation for the legislature (Gestaltungsdirektive). A cautious review by the Federal Constitutional Court, which is restricted to applying the standard of evident inappropriateness (evidente Sachwidrigkeit), corresponds to the legislature’s broad leeway (first pillar of the constitutional “maintenance” principle). In addition, in order to ensure compliance with constitutional standards, procedural safeguards in the shape of obligations to state reasons, to examine and to observe are required (second pillar of the constitutional “maintenance” principle).

c) The legislature’s broad leeway also covers the introduction of new performance elements in remuneration, and the modification of existing ones. In principle, a two-stage remuneration system consisting of fixed basic salaries and variable pay for performance can exist instead of a remuneration system whose point of reference is the basic salary and which is structured according to seniority levels. If, however, the legislature replaces one system by the other, apart from the demands placed by the maintenance principle, the other constitutional principles relevant in this context must be satisfied. In order to be able to compensate a maintenance deficit arising from low basic salary rates, the possibility of achieving pay for performance must be open to every office-holder, and pay for performance must show sufficient continuity. With regard to the group of professors, this is the case, where the legislature has formulated the criteria for awarding the pay for performance in a sufficiently clear and definite manner and where the individual professor has, under clearly defined, predictable prerequisites that can be fulfilled, an  enforceable claim to being awarded pay for performance.

2. a) In salary scale W 2, the fixed basic salary rates of remuneration ordinance W are not sufficient for securing a livelihood to a professor that is appropriate to his or her rank, to the responsibility involved with the office and the importance of the permanent civil service for the general public. This becomes evident primarily from the comparison of the basic salary rates of salary scale W 2 with the basic salary rates of

remuneration ordinance A and is confirmed by a comparison with the incomes outside the civil service. The basic salary rates in salary scale W 2 do not do justice to the high demands placed on the academic career and the qualification of the holders of these offices or to the great variety and the high demands of the tasks in research, teaching and administration involved with the office of professor. Furthermore, the comparison of salary scale W 2 with the salary of related groups of employees in the private sector makes evident that the W 2 professors are situated far down in the respective salary scale.

b) The evident inappropriateness of the basic salary rates is not eliminated by the fact that the possibility of attaining pay for performance is provided to the office-holders by the legislature because the possibility is obviously not open to every office-holder and pay for performance does not show sufficient continuity. According to the statutory configuration, there is no right to be awarded pay for performance but only a right for the award to be decided on a basis that is free from abuse of discretion. The determination of the amount of the pay for performance is a discretionary decision that is subject to but a few statutory regulations. As according to the statutory configuration, an overall volume of pay, i.e. an overall amount for the annual award of pay for performance, must be determined, the award of individual pay for performance must take into account the extent to which the overall volume has already been drawn upon by the earlier granting of pay for performance. The professors who “are late” will only receive low pay for performance or none at all, without this depending from the professor’s individual performance or the professor being able to influence this in any way. The other modalities of the award of the pay for performance prove that in its present configuration, its nature is merely that of an addition to the salary and not that of maintenance. The pay for performance can be awarded not only on a permanent, but also on a temporary basis or as a one-off payment, and therefore often has little

effect on pension payments.

3. The legislature has several options for eliminating the maintenance deficit that was held unconstitutional. The legislature can ensure a

maintenance level in keeping with the office through the amount of the basic salary rates or, for instance, organize the pay for performance in

such a way that it complies with minimum requirements with regard to maintenance. In view of these legislative possibilities, after opting

for a specific model of new provision that implements the requirements under constitutional law, the legislature is obliged to observe whether

the model is able to function and whether it is compatible with the logic of the system, and to make improvements that may prove necessary.

If the model chosen for the future does not prove to be viable or if the actual development deviates from the predicted one for other reasons,

the legislature is obliged to make corrections of the configuration of the system of remuneration or of the amount of salaries.

Adjudication method: Use of the test of “evident impropriety” to strike down a state statute; protection of core content of maintenance principle; protection of fundamental rights through procedural safeguards; freedom of research and teaching (Article 5.3 of German Constitution) as an objective constitutional principle..

Reference to other constitutional courts: No.

Reference to International Law: No.

Relation with former jurisprudence/Innovative elements: In the general absence of clear standards to judicially identify the substantive scope of the state obligation to pay appropriate maintenance to civil servants according to the German Constitution, the German Constitutional Court emphasizes the importance of procedural safeguards. It thus extends to civil service law the procedural approach enunciated in the Hartz-IV judgment concerning social benefits legislation. On the other hand, the Court emphasizes the broad legislative latitude in implementing the state obligation to take care of civil servants’ welfare. It thus applies a lenient substantive test of “evident inappropriateness” (“evidente Sachwidrigkeit”). The Court concludes, however, that the Hesse legislation failed to meet even those lax constitutional requirements in substantive terms. The holding has implications for other sectors of civil service law and beyond. It reiterates the potential importance of the procedural approach to ensure a certain justiciability of social rights guarantees. On the other hand, even beyond the realm of human dignity that was implicated in the Hartz-IV decision, the Constitutional Court holding demonstrates that the relaxed scrutiny of legislative action should not be considered as tantamount to an unqualified deference to legislative bodies.

Key words: Social rights, human dignity, justiciability of social rights guarantees, maintenance principle.

Commentator/contact details: Stylianos Koutnatzis, Democritus University of Thrace, Greece, skoutnatzis@yahoo.gr.

IACL Project –Social Rights, Library of Social Rights

Country/Court: France/ Conseil d’ État.

Year of Judgment/Nr of Decision: 2012/ M. A. no 356456.

Related social rights: Right to emergency housing.

Constitutional provisions: Subparagraphs 10, 11 of the French Constitution of 1946 as implemented by the Arts L 345-2 and 345-2-1 (Code of Family and Social Action) regulating the right to emergency housing.

Subject: Establishment of a right to emergency housing according to the law and Constitution.

Summary of the Decision:

I. Facts of the case

The applicant of the case was a French national who has been living in France in Val de Marne for many years when his apartment was destroyed by fire in the night of January 17-18 2012. After being housed overnight by the local authorities and the next day by the Social Monitoring Service he found himself without accommodation. Thus he referred to the judge of the first instance administrative court of Paris in order to oblige the local authorities with a court order to provide him with emergency housing. His request was rejected and thus the applicant appealed to Conseil d’État.

The Conseil d’État was called upon to decide whether the applicant was qualified to be provided with emergency housing and whether the lack of response on behalf of the administrative authorities (Ile de France, Prefecture) has infringed the right to emergency housing. Although the Conseil d’État rejected the appeal in the basis that the applicant has received alternative housing in the meantime, it nevertheless acknowledged in its judgement the right to emergency housing as a fundamental right binding for the administrative authorities. It also considered the judicial branch as the sole competent authority to determine whether in a specific case the right to emergency housing has been infringed. According to the Court: ‘The judge may order any action necessary to protect a fundamental freedom in the cases where administrative authorities have exercised their competences in a seriously and manifestly illegal manner’ (see, Art. L 521-2 of the Code of Administrative Justice).

2. The basic considerations of the case

1. a) The right to housing can be founded in subparagraphs 10, 11 of the French Constitution of 1946 where it is stated that: ‘The Nation shall provide the individual and the family with the conditions necessary to their development. […] It shall guarantee to all, notably to children, mothers and elderly workers, protection of their health, material security and leisure. All people who by virtue of their age, physical or mental condition, or economic situation are incapable of working shall have the right to receive suitable means of existence from society’. Nevertheless as a true Rule of Law, the French legal system, in the last twenty years, guaranteed the right to housing in its legislation. The Quilliot Act (22 June 1982) acknowledged that: ‘The right to housing is a fundamental right’. The Mermaz Act (6 July 1989) protected the tenants’ rights. Further, the Besson Act (31 May 2000) states that: ‘Guaranteeing the right to housing is a duty of solidarity incumbent upon the whole nation’. The Besson Act did not provide with a relief neither recognized the right to housing as enforceable. It rather recognized the obligation of the state to provide assistance to those lacking of a permanent residence. Nevertheless with the Bill No 2007-290 (5-7 March 2007) an enforceable right to housing was introduced in order for the social cohesion to be promoted. This new legislative intervention provided that all people who qualified for social housing after January 1^st, 2012 and have been waiting for an abnormally long period without an alternative housing will be able to take their case to a mediation committee and subsequently appeal to the administrative courts. Consequently, the administrative courts will be able to order the state to house the applicants and if they fail in their obligation to be subjected in a fine.

b) The Conseil d’État examined the arguments both of the applicant and the public administration. Namely the applicant underlined that the local authorities had not provided him with access to emergency housing, exposing him to bad weather conditions and possible attacks, thus violating the French legislation (Arts L 345-2, L345-2-2, L 345-2-3 of the Family and Social Action Code) and Arts 3 and 8 of the ECHR protecting dignity and private life. On its part the public administration argued that the applicant was not deprived of its right to access and that the local authorities had the sole competence to set priorities between those applying for social housing. As far as the public administration was concerned, the applicant did not belong in one of the high risk groups, he belonged in a less vulnerable group, since he was a man, quite young and of excellent health and thus his application was not hiererchized as urgent.

The Conseil d’État considered this line of arguments, took account of the relevant provisions of the ECHR and focused on Arts L 521-2 of the Code of Administrative Justice (supra) and Arts L 345-2 and 34-2-2 of the Family and Social Action Code regulating the enforcement of the right to emergency housing and rendering it possible for ‘any homeless person in distress, medical, psychological…’. According to the Court, the guarantee of emergency housing as a fundamental right did not provide the public administration with a margin of appreciation to prioritize among the citizens in need of social housing, thus requiring from the competent authorities: ‘to deal with all requests received and determine which of the various policy instruments at their disposal could be applied and what procedure would be followed in each specific case, given the age, health status and family status of the person concerned’. Therefore, the Court rendered the right to emergency housing as a directly enforceable fundamental right.

At last Conseil d’État retained for the judicial branch the sole competence to determine the purposes of the legislator in acknowledging the right to emergency housing as an enforceable social right. Thus the Court underlined that: ‘it is the task of the first instance judge to reveal whether the work performed by the administrative authorities has infringed a fundamental freedom in a seriously and manifestly illegal manner and when it has serious consequences for the person concerned’.

Adjudication method: Reference to the protection of human dignity.

Reference to other constitutional courts: No.

Reference to International Law: European Convention of Human Rights and Fundamental Freedoms –Council of Europe.

Relation with former jurisprudence/Innovative elements: The judgement is historical in the sense that for the first time French Supreme Court has recognized the right to housing as fundamental.

Bibliography: Marie Loison, The implementation of an enforceable right to housing in France, European Journal of Homelessness, December 2007, pp. 185-197.

Key words: Human dignity, right to emergency housing, privacy, vulnerable groups, social housing, right to receive suitable means of existence, enforceable right.

Commentator/contact details: Christina Akrivopoulou, Democritus University of Thrace, Greece, akrivopoulouchristina@otenet.gr.

IACL Project –Social Rights, Library of Social Rights

Country/Court: Spain/Tribunal Constitucional.

Year of Judgment/Nr of Decision: 2009/128.

Related social rights: Right to social security.

Constitutional provisions: Article 41 of the Spanish Constitution.

Subject: The Court examined the constitutionality of legislation regarding unemployment according to the obligation of the public authorities to maintain “a public social security regime for all citizens which guarantees social assistance and benefits in situations of need, particularly of unemployment”.

Summary of the Decision:

I. Facts of the case

In this case the Constitutional Court studied the constitutionality of article 219.2 of the General Social Security Act (“Ley General de la Seguridad Social” –LGSS-) passed by Royal Legislative Decree 1/1994 (20 June). This article laid down the extinction of the social security unemployment subsidy for those unemployed above the age of fifty-two and in receipt of an income higher than 75% of the minimum interprofessional salary, who had consumed their ordinary unemployment benefit entitlement.

The judicial body that introduced the question of unconstitutionality considered that art. 219.2 LGSS was in contradiction of art. 41 of the Spanish Constitution (“Constitución española –CE-), which obliges the public authorities to maintain “a public social security regime for all citizens which guarantees social assistance and benefits in situations of need, particularly of unemployment”.

The Constitutional Court did not find art. 219.2 LGSS to be in contradiction of CE art. 41 since it had no affect at all on the “institutional guarantee” of the public social security regime. It stated that the right citizens may have to social security is a legally constituted right whose contents may accordingly be constituted by the Legislator in accordance with each specific situation of need.

II. The Basic arguments of the case

In the first place it should be remembered that CE art. 41 is to be found in Chapter III of the Constitution’s 1st Title, under the rubric “Concerning the guiding principles of social and economic policy” and that CE art. 53.3 restricts the applicability of the principles and social rights contained in said Chapter when it lays down that their recognition, respect and protection “will inform positive legislation, judicial praxis, and the actions of the public authorities”; but that those principles and rights “may only be pressed in ordinary courts in accordance with the provisions of the laws that developing them”. The most prevalent interpretation in Spanish doctrine and jurisprudence is that Chapter III of the Constitution’s 1st Title does not constitute genuine subjective rights on the exclusive basis of its text; rather, for such rights to be constituted they must have been established in a law developing the constitution.

In its Sentence, the Constitutional Court began by acknowledging that in previous jurisprudence it had given its opinion on numerous occasions regarding the scope of the obligations imposed on the public authorities by CE art. 41. Thus, it recalled that CE art. 41 makes it incumbent upon the public authorities to establish –or uphold- a system of protection corresponding to the technical characteristics of the means of cover proper to a social security system; in other words, that said precept enshrines as an “institutional guarantee” a public regime “the preservation of which is deemed essential if the constitutional principles are to be guaranteed, by creating… a nucleus or redoubt inviolable by the Legislator” (STC 32/1981), which has to be preserved “in terms which match the image society has of it at a given time and place” (STS 26/1987 and 76/1988).

Once this limitation of inviolability has been cleared away, the right citizens may have to social security is a right of strictly legal constitution, the Legislator being free to modulate the protective action of the system in view of economic and social circumstances which are imperative for the right’s viability and efficacy (STC 65/1987, among others). From this doctrine the Constitutional draws the conclusion that the legal precept at stake cannot infringe CE art. 41 in so far as it has no effect at all on the institutional guarantee of the public regime of social security. It is the Legislator who must decide the degree of protection appropriate to different social needs and to articulate technically the protective systems aimed at covering them.

Reference to other constitutional courts: No.

Reference to International Law: No.

Relation with former jurisprudence/Innovative elements: As the Constitutional Court makes clear in this sentence, and as set out in the summary, various previous pronouncements mentioned the legal efficacy of the right to social security in the Spanish legislation. Thus, as far as social rights in general or the right to social security in particular are concerned, it is not an innovative sentence in Spanish jurisprudence.

Nevertheless, it is of interest because it draws on previous jurisprudence of the 1980s and applies it to a current case, while insisting on the point that CE art. 41 does not constitute of itself a fundamental right with a specific content which may be opposed to the Legislator. Nevertheless, the Constitutional Court also insists on the fact that CE art. 41 lays down the obligation of the public authorities to create a public social security regime in the image social awareness has of it at a given time and place, and that this obligation is guaranteed by the Constitution. For that purpose it avails itself of the concept “institutional guarantee”.

Bibliography: CARMONA CUENCA, E., “El derecho a la protección social y la lucha contra la pobreza y la exclusión (art. 34 CDFUE)”, en GARCÍA ROCA, J. y FERNÁNDEZ SÁNCHEZ, P.A. (Coords.), Integración europea a través de derechos fundamentales: de un sistema binario a otro integrado, Centro de Estudios Políticos y Constitucionales, Madrid, 2009.

GIL, J.L., “El derecho a la seguridad social”, en G. ESCOBAR ROCA (Dir.), Derechos sociales y tutela antidiscriminatoria, Thomson Reuters-Aranzadi, Cizur Menor (Navarra), 2012.

PÉREZ SANCHEZ, C. “El sistema de seguridad social en España como principio rector de la política social y económica: características generales y desarrollo normativo”, en CASCAJO CASTRO, TEROL

BECERRA, DOMÍNGUEZ VILA y NAVARRO MERCHANTE (Coords.), Derechos sociales y principios rectores, Actas del IX Congreso de la Asociación de Constitucionalistas de España, Tirant lo Blanch, Valencia, 2012.

ESCOBAR ROCA, G. (Dir.), Derechos sociales y tutela antidiscriminatoria, Aranzadi/Thomson Reuters, Cizur Menor (Navarra), 2012.

CASCAJO CASTRO, J.L.; TEROL BECERRA, M., DOMÍNGUEZ VILA, A. y NAVARRO MERCHANTE, V., Derechos sociales y principios rectores. Actas del IX Congreso de la Asociación de Constitucionalistas de España, Tirant lo Blanch, Valencia, 2012.

Key words: Right to social security, public regime of social security, social rights, applicability of social rights.

Commentator/contact details: Carmona Cuenca Encarnación, Max Planck Institute, e.carmona@uah.es

IACL Project –Social Rights, Library of Social Rights

Society of Un-aided Private Schools of Rajasthan v. Union of India and Another

Country/Court: India / Supreme Court of India

Year of Judgment/Nr of Decision: 2012 / (2012) 6 S.C.C.1

Related social rights: Right to education

Constitutional provisions: Article 21A and Article 14 of the Constitution of India

Subject: The state can secure the right to education by mandating that all schools, public or private, reserve 25% of their seats for disadvantaged children in their neighbourhood.

Summary of the decision:

I. Facts:

In 2002, Article 21A was inserted into the Constitution of India by an amendment, to ensure that “the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.” The Government of India subsequently enacted the Right of Children to Free and Compulsory Education Act, 2009 (The Right to Education Act). This Act casts an obligation on all education institutions, including private schools, to admit children of the ages six to fourteen years, from their neighbourhood, on the principle of social inclusiveness. The Society of Un-aided Private Schools of Rajasthan brought a constitutional challenge to this Act, and particularly to Section 12(1)(c), which required all unaided (private) schools to set aside 25% of their seats for children from disadvantaged backgrounds in the neighbourhood of such schools.

The Supreme Court held, by majority, that the challenged provisions were not ultra vires the Constitution, and that such obligation could be cast upon unaided schools. However, the Supreme Court held that such obligation could not be cast upon schools specifically established and administered by minorities.

II. Basic Considerations

1. The challenge to the obligation to provide free education to children from disadvantaged backgrounds is premised on the argument that Article 21A casts an obligation on the State. Accordingly private, unaided institutions should not, it was argued, be compelled to provide free education. The Court held that although the obligation was cast upon the state, Article 21A further provided that the state could determine, by framing laws, how this obligation should be discharged. In the present case, the court pointed to the fact that unaided schools were entitled to compensation from the state for expenses undertaken to provide free education to disadvantaged children. Consequently, it was held that imposing these obligations on unaided schools was not in breach of Article 21A.

2. The Right to Education Act was further challenged on the grounds that it infringed upon the rights of private persons and bodies to engage in any occupation, trade or business, under Article 19(1)(g) of the Constitution of India. The requirement of providing 25% of seats to disadvantaged children could not, it was argued, be made a condition for recognition of educational institutions. The Court made two points in this regard. Firstly, it held that Article 19(1)(g) would only protect education institutions that were run primarily for charitable, and not profitable, purposes. Secondly, it reaffirmed that rights under Article 19 of the constitution, including the right to engage in trades, occupations or business, were subject to reasonable restriction. In this case, the provisions amounted to a reasonable restriction because the unenforceable ‘Directive Principles of State Policy’ in the Indian constitution contained similar provisions for education. The Court held that the directive principles of state policy would automatically constitute reasonable restrictions on fundamental rights.

3. The Court held, in the majority and minority opinion, that unaided minority educational institutions cannot be compelled to reserve 25% of their seats for disadvantaged children. The establishment and administration of minority education institutions is a constitutional right under Article 30 of the Indian Constitution. The Court held that this right is a special right afforded to minorities and brooks no restrictions. Insofar as a minority institution is aided by the state, however, it can be compelled to reserve 25% of its seats for disadvantaged children.

III. Adjudication Method: Reference to constitutional provisions, previous decisions and jurisprudence of the Supreme Court of India, legislative history of the Right to Education Act.

IV. Reference to other constitutional courts: Not by the majority. The minority opinion makes reference to decisions to constitutional courts in South Africa, United States of America, Canada and Venezuela.

V. Reference to international law: Not by the majority. The minority opinion makes reference to, but does not rely upon, the U.N. Convention on Economic, Social and Cultural Rights 1966 (ICESCR), International Covenant on Civil and Political Rights 1966 (ICCPR), Universal Declaration of Human Rights 1948 (UDHR), and the United Nations Convention on Rights of the Child 1989.

VI. Relation with former jurisprudence/Innovative elements: The method of adjudication is not substantially different, however, the Supreme Court has, for the first time, cast a positive obligation on private, non-state actors to secure the socio-economic rights of citizens. Previous decisions of the Supreme Court applied restrictions against discrimination upon private actors. The right to education, therefore, is justiciable against the state as well as against non-state actors.

Bibliography:

Key Words: right to education, horizontal application of rights, private and non-state actors

Commentator/contact details: Raeesa Vakil, Advocate, India [ raeesa.vakil@gmail.com ]

IACL Project –Social Rights, Library of Social Rights

Anuj Garg and others v. Hotel Association of India and others

Country/Court: India / Supreme Court of India

Year of Judgment/Nr of Decision: 2007 / (2008) 3 S.C.C.1

Related social rights: Right to work, right to safe and healthy working conditions, right of women to being guaranteed conditions of work not inferior to those enjoyed by men, right to gain a living by work freely chosen

Constitutional provisions: Articles 14, 15 and 19(1)(g) of the Constitution of India

Subject: A law that restricts employment of persons must discriminate, if at all, on a rational principle. If not, it is liable to be struck down, as the Constitution prohibits irrational discrimination, and further, permits autonomy in selecting the occupation of one’s choice.

Summary of the decision:

I. Facts:

Section 30 of the Punjab Excise Act, 1914 prohibits the employment of any man below the age of 25 years, or any woman, from working in any part of such premises in which liquor or an intoxicating drug is consumed. The respondent, Hotel Association of India, has members which carry on business in hotels, including the service of alcohol in bars, restaurants and as room service. The respondent had approached the High Court of Delhi, to challenge the constitutional validity of Section 30 of the Punjab Excise Act, 1914, on the grounds that it violated the right to equality (Article 14), the prohibition of discrimination against women (Article 15) and the right to practice any profession, trade or occupation (Article 19(1)(g)). The High Court of Delhi struck down Section 30 as unconstitutional. Against this decision, the Petitioners appealed to the Supreme Court.

The Supreme Court held that the High Court had decided the matter correctly and dismissed the appeal. Section 30 of the Punjab Excise Act, 1914 was found to violate the right to equality and the right ‘to be considered for employment’.

II. Basic Considerations:

1. The Supreme Court held that the right to employment “may not” be a fundamental right; however, the right to be considered for employment was protected under Article 14 of the Indian Constitution, which contains prohibitions against discrimination. The Supreme Court went on hold that the restrictions in Section 30 of the Punjab Excise Act, 1914 were unconstitutional, firstly, as they discriminated against women, and secondly, as all citizens had the right to be considered for the employment of their choice.

2. The Supreme Court observed that the Punjab Excise Act, 1914 was a pre-constitutional law, and had been enacted when the concept of equality amongst men and women was “unknown”. As the Constitution is now in force, any law which purports to discriminate on protective grounds should be put to strict scrutiny on two bases: firstly, that the legislative interference with equality should be justified in principle, and secondly, that the interference should be proportionate in measure. In this case, the Supreme Court noted that the Act could not be justified on the basis of the principle of parens patriae, nor on the basis of public morality as there was no general prohibition against alcohol. Further, the means of restriction were not proportionate, it was the responsibility of the state to secure the security and safety of people in such employment, and not, by prohibiting, to avoid its responsibilities.

3. The Supreme Court did not explicitly address the arguments raised on the basis of freedom of occupation, trade or profession; however it was observed that subject to constitutional, statutory and social interdicts, every citizen had the right to live life on their own terms, and inasmuch, to choose their professions. This argument was grounded in the right to privacy. The Supreme Court observed that rights of privacy prescribed a measure of autonomy to all citizens in choosing their professions. However, the Court observed, “it is a reasonable proposition that the measures to safeguard such a guarantee of autonomy should not be so strong that the essence of the guarantee is lost. State protection must not translate into censorship.”

III. Adjudication Method: Reference to constitutional provisions, previous decisions and jurisprudence of the Supreme Court of India, academic writing, legislative history and comparative law.

IV. Reference to other constitutional courts: The Supreme Court referred to decisions of constitutional courts in South Africa, courts in the United States of America, and the European Court of Human Rights.

V. Reference to international law: Without referring to international law itself, the Supreme Court took ‘notice’ of a number of previous Supreme Court decisions which referred to treaties prohibiting discrimination against women.

VI. Relation with former jurisprudence/Innovative elements: The Supreme Court explicitly recognised, for the first time, that citizens have autonomy in choosing their professions subject to constitutional, statutory and social interdicts. However the scope of such social interdicts was not clarified. Rather than recognise this as part of the right to work, the Supreme Court chose to couch it in terms of a negative prohibition against discrimination. The utilisation of anti-discrimination provisions to protect socio-economic rights is not new to the jurisprudence of the Supreme Court; however, the recognition of personal autonomy in choice of employment in this context is an innovation.

Bibliography:

Key Words: right to work, right to equal treatment at the workplace, freedom to choose employment, parens patriae,

Commentator/contact details: Raeesa Vakil, Advocate, India [ raeesa.vakil@gmail.com ]

IACL Project –Social Rights, Library of Social Rights

Consumer Education and Research Centre v. Union of India

Country/Court: India / Supreme Court of India

Year of Judgment/Nr of Decision: 1995 / (1995) 3 S.C.C. 42

Related social rights: Right to healthcare, right to life, right to safe and healthy working conditions

Constitutional provisions: Articles 21, 38, 39(e), 41, 43 and 48A of the Constitution of India

Subject:

Summary of the decision:

I. Facts:

The Consumer Education and Research Centre, a non-profit organisation, filed a public interest petition in the Supreme Court of India in 1986, drawing attention to the health hazards faced by workers in the asbestos industry. The Supreme Court, after an exhaustive investigation into the effects of asbestos on human health and the environment, held that the right to health and medical aid to protect health was constitutionally protected under the general right to life in Article 21. It was held that it is the obligation of an employer to secure the health of its workers, both, during service and after. In the specific instance of the asbestos industry, the Supreme Court adopted, suo motu, the ILO rules on “"All Safety in the Use of Asbestos” and directed all states and industries to comply with them.

The Supreme Court directed all industries and employers to pay liquidated damages to any workman suffering from health hazards due to working with asbestos. It further directed all these industries and employers to (i) maintain and keep health records of every worker for a minimum period of 40 years from employment, or 15 years after retirement, (ii) to utilise a ‘membrane filter’ test to detect asbestos fibre, (iii) to insure every workman, regardless of whether the Employees’ State Insurance Liability Act 1948 applied to them. The Supreme Court also directed the Central and State Governments to review the standards of permissible exposure to asbestos fibre.

Basic Considerations

1) After a detailed examination of the ill-effects of asbestos on health and the environment, the Supreme Court held that “right to health, medical aid, to protect the health and vigour of a worker while in service or post-retirement, is a fundamental right under Article 21, read with Articles 39(e), 41, 43, 48-A.” The Supreme Court then noted that the Constitution enjoined the state to provide “social justice,” and accordingly it was the duty of the state to provide healthcare. The denial of healthcare, it was observed, would amount to a denial of the right to life under Article 21, and consequently, the right to health was translated from a duty upon the state to an enforceable right for the workers. The Court upheld this right to healthcare even after retirement, noting that existing laws, such as the Workmen’s Compensation Act, 1923 and the Employees State Insurance Act, 1948, only protected workers’ right to healthcare during their employment. The Supreme Court observed, “Continued treatment, while in service or after retirement is a moral, legal and constitutional concomitant duty of the employer and the State.”

2) In evaluating the applicable national standards in regulation of exposure to asbestos, the Supreme Court observed that India had ratified the Asbestos Convention, 1986 in Convention 12 of the International Labour Conference. It also observed that while certain legislative standards had been prescribed domestically, these had not been implemented properly. Consequently the Supreme Court directed that the ILO rules prescribing ‘Safety in the use of Asbestos’ would be binding on all industries.

3) The Supreme Court, applying principles of compensation evolved in cases relating to wrongful imprisonment and custodial death, held that it was settled law that a claim for compensation is a remedy available when fundamental rights are infringed by the state or by non-state actors. The Court briefly mentioned, but did not discuss, that such compensation would also be payable on “the principles of tortious liability”. The Supreme Court accordingly directed the industries and factories which dealt in asbestos to pay liquidated damages to their workmen, in compensation for asbestos-related illnesses caused by health hazards at the workplace.

II. Adjudication Method: Reference to constitutional provisions, previous decisions and jurisprudence of the Supreme Court of India, international treaties, treatises on labour law and health, and application of the principle of ‘social justice’.

III. Reference to other constitutional courts: No.

IV. Reference to international law: Refers to the ILO Asbestos Convention, 1986 and the ILO Rules regarding safety in the use of asbestos, and the Universal Declaration of Human Rights.

V. Relation with former jurisprudence/Innovative elements: The Supreme Court f India has, previously, exercised wide powers to issue directions to the state and central governments on the implementation of various welfare and policy measures. The extensive directions in this case are in keeping with former jurisprudence; however, the application of ILO rules which have not been adopted in legislation is unusual. Additionally, compensation as a remedy for breach of fundamental rights was previously applied only in cases of infringement of civil liberties (such as wrongful imprisonment, or custodial violence). The award of compensation in this case, further, is despite the existence of laws relating to compensation for workplace-related health problems, which the Court found to be inadequate. Further, the imposition of the obligation to pay damages for infringement of fundamental rights was extended beyond the state to private actors as well.

Bibliography:

Key Words: right to healthcare, right to safety at the workplace, labour rights

Commentator/contact details: Raeesa Vakil, Advocate, India [ raeesa.vakil@gmail.com ]

IACL Project –Social Rights, Library of Social Rights

Paschim Banga Khet Mazdoor Samity and Others v. State of West Bengal and Others

Country/Court: India / Supreme Court of India

Year of Judgment/Nr of Decision: 1996 / (1996) 4 S.C.C. 37

Related social rights: Right to healthcare, right to emergency medical treatment

Constitutional provisions: Article 21 of the Constitution of India

Subject: The right to health and immediate medical assistance at government hospitals are enforceable rights, and the state is under an obligation to ensure that adequate health care facilities are available to all, failing which it is liable to pay compensation.

Summary of the decision:

I. Facts:

Hakim Seikh, an agricultural labourer, fell off a train in the state of West Bengal, suffering serious injuries to the head as a consequence. He was taken, in succession, to seven government-operated hospitals, all of which refused to admit him for treatment on the grounds of unavailability of beds or facilities. He was ultimately admitted to a privately-run hospital, where he incurred expenses for medical treatment. Along with the Paschim Bangal Khet Mazdoor Samity (the West Bengal Agricultural Labourers’ Association) he filed a writ petition claiming relief on the grounds that non-availability of facilities for treatment of serious injuries at government hospitals amounted to a denial of the right to life under Article 21 of the Indian Constitution. During the course of the petition, the government of the state of West Bengal constituted a committee to look into the incident and to suggest remedial measures to prevent such incidents. The Supreme Court took on record the report of this committee, and framed guidelines for all

II. Basic Considerations

1. The Supreme Court observed that as a welfare state, the Government of India and of the states of India were duty bound to provide medical facilities to the people. The failure of a government hospital to provide timely medical treatment of a person in need would amount to a violation of the right to life under Article 21 of the Indian Constitution. The denial of such rights, it was held, would entitle the petitioner, Hakim Seikh, to compensation, for violation of his rights. The Supreme Court fixed the amount of compensation at Rs. 25,000/- (the costs incurred were claimed to be Rs. 17,000/-, however there was no discussion of the calculation of amount of compensation).

2. The Supreme Court took on record the report of the state investigative committee, and noted that some of these recommendations had since been adopted by the state government of West Bengal. The Supreme Court also heard submissions from intervenors on the need to provide emergency medical. Based on these, the Supreme Court issued further directions to the state government of West Bengal. These directions included orders to ensure availability of adequate facilities at all government primary health care centres, to set up a centralised communication network to ensure that patients can be sent to centres where beds are available, arrangements for ambulance services, etc.

3. The Supreme Court observed, that financial resources would be required for implementing the directions in this order. However, it noted that “it cannot be ignored that it is the constitutional obligation of the state to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done.” Applying previous decisions on the mandatory provision of free legal aid, it held that constitutional obligations cannot be avoided on the grounds of financial constraints.

III. Adjudication Method: Reference to constitutional provisions, previous decisions and jurisprudence of the Supreme Court of India.

IV. Reference to other constitutional courts: No.

V. Reference to international law: No.

VI. Relation with former jurisprudence/Innovative elements: The right to health care, and emergency medical services has been previously recognised by the Supreme Court as a part of the right to life under Article 21. However, the Supreme Court in this decision cast a positive obligation upon the state to ensure that the facilities provided were adequate, and that denial of adequate services would entitle a petitioner to compensation from the state. The framing of extensive guidelines and policy is again, common in the jurisprudence of the Supreme Court. However, it is by no means an established position that the state’s financial constraints are not grounds for denial of socio-economic rights, as other decisions (notably, State of Karnataka v. Umadevi (3), (2006) 4 SCC 1) have held that certain rights (such as the right to housing) may not be implemented on the grounds of the limited financial resources of the state.

Bibliography:

Key Words: right to health care,

Commentator/contact details: Raeesa Vakil, Advocate, India [ raeesa.vakil@gmail.com ]

IACL Project –Social Rights, Library of Social Rights

People’s Union for Civil Liberties v. Union of India and Another

Country/Court: India / Supreme Court of India

Year of Judgment/Nr of Decision: 2001 (ongoing) / Writ Petition (Civil) 196 of 2001

Related social rights: Right to food

Constitutional provisions:

Subject: The right to food is a fundamental right, and can be judicially implemented.

Summary of the decision:

I. Facts:

In 2001, a non-profit organisation, the People’s Union for Civil Liberties, filed a writ petition to the Supreme Court, against the Union of India, six state governments and the Food Corporation of India, a public sector corporation. This petition was initially filed seeking redress against inadequate relief from the governments during a period of drought. Relying on Article 21 of the Indian Constitution, the petitioners argued that the right to food was a justiciable human right, drawing it as a necessary corollary to the right to life. The petition initially sought judicial intervention to firstly, provide immediate open-ended employment in drought-affected villages, secondly, to provide unconditional support to persons unable to work, thirdly, to raise the public distribution system’s food entitlements per family, and fourthly, to provide subsidised food grains to all families. It was subsequently expanded, through interim applications and also by the Court on its own volition, to address failures of the public distribution system in India, various food distribution and famine relief schemes, and employment schemes. The Supreme Court thus far has passed approximately a hundred interim orders in this case, ordering a number of reliefs, constituting review committees, and monitoring implementation of its orders, itself. All the Indian states and union territories have now been impleaded as respondents. Commonly known as the “Right to Food case”, this matter is still ongoing at the Supreme Court.

II. Basic Considerations

1. The Supreme Court, has through a series of orders, ordered the framing and implementation of various relief schemes for people below the established “poverty line” as well as those above it. These schemes include a national scheme to provide a mid-day meal to all children in government schools, a targeted public distribution scheme, a special scheme aimed at destitute households. In addition, other schemes not directly related to the public distribution of food have been implemented by the Supreme Court through interim orders. These include a maternity benefit scheme, a scheme to establish and monitor day care centres for children in rural areas, and an old age pension scheme.

2. The Supreme Court has taken upon itself the responsibility of monitoring implementation of the abovementioned schemes. For instance, by an order dated November 28, 2001 it directed the state and central governments to identify beneficiaries of the schemes mentioned above by a fixed date. The Supreme Court uses for such monitoring the device of a “continuing mandamus”, or a writ issued to the Central Government, continuing at the discretion of the Supreme Court, to do or refrain from doing certain acts. The Supreme Court has subsequently delegated the task of monitoring implementation to judicially appointed commissioners. By an order dated October 29, 2002, the work of these commissioners is funded by the Union of India.

3. In accepting the right to food as concomitant to the right to life, the Supreme Court has further identified the responsible authority for implementing the right to food. In an order dated October 29, 2002, for instance, it held that “It is the duty of each States/Union Territories to prevent deaths due to starvation or malnutrition. If the Commissioner reports and it is established to the satisfaction of the Court that starvation death has taken place, the Court may be justified in presuming that its orders have not been implemented and the Chief Secretaries/Administrators of the States/ Union Territories may be held responsible for the same.” By an order dated April 27, 2004, the state has been restrained from discontinuing any of these schemes without the Supreme Court’s permission.

III. Adjudication Method: Thus far, interim orders have been monitored for implementation by direct response to the Court, or through the appointment of judicial commissioners to oversee implementation.

IV. Reference to other constitutional courts: No

V. Reference to international law: No

VI. Relation with former jurisprudence/Innovative elements: The Supreme Court has previously utilised the concept of a ‘continuing mandamus’ to monitor implementation of its orders, in cases relating to environmental destruction and bonded labour. However, the mandamus in the Right to Food case appears to be one of the longest, stretching over a decade. The Supreme Court has accorded to itself the power of not only directing, but also monitoring the implementation of various government schemes. While this is in accordance with the jurisprudence of the Supreme Court, it also indicates a significant widening of the Supreme Court’s reach, into the governance of the state.

The conversion of governmental schemes into legal entitlements at this scale is unprecedented, as previous decisions have focused only directed state and union governments to form appropriate schemes. The Supreme Court here not only directs actual implementation of existing schemes, but takes on the power to modify these schemes, and monitor actual implementation. The Supreme Court’s orders have extended to directions regarding dissemination of information, computerisation of records, and identification of responsible government officials. The utilisation of wide powers to enforce fundamental rights has allowed the Supreme Court to innovate significantly in the implementation of socio-economic rights; for instance, it has instituted proceedings of contempt against officials for failure to implement some of these interim orders. Most of all, the implication of the Right to Food orders has been to demonstrate that the Supreme Court has the power to issue directions which have direct financial and budgetary implications on the state, and to further enforce such directions.

Bibliography:

Key Words: right to food, nutrition, social security, hunger

Commentator/contact details: Raeesa Vakil, Advocate, India [raeesa.vakil@gmail.com]

IACL Project –Social Rights, Library of Social Rights

Country/Court: Council of Europe, European Committee of Social Rights (ECSR).

Year of Judgment/Nr of Decision: 2007, n^o 33/2006.

Related social rights: Right to housing. Right to protection against poverty and social exclusion.

Constitutional provisions: Articles 31 §2 and 3 and 30 of the European Social Charter.

Subject: According to the ECSR the States should establish procedures in order to limit arbitrary evictions, to supply affordable housing and to provide a comprehensive access to social rights especially where vulnerable groups are concerned.

Summary of the Decision:

A. A collective complaint was lodged by the international NGO ATD Quart Monde against France.

1. The provision of Article 31 § 2 requires States to establish procedures to limit arbitrary evictions and provide guarantees for housing deportees.

2. According to Article 31 § 3, states should encourage the construction of housing and an adequate supply of affordable housing.

3. According to article 30, States must adopt a comprehensive and coordinated to promote effective access to social rights, in order to target, if necessary, the most vulnerable groups and allocate sufficient financial resources.

B. After legal and sociological examination of the case, the ECSR concluded that the situation in France concerning all aspects mentioned in Articles 31 § 2 and 3 and 30 constitutes a violation of these provisions. In addition, the ECSR considered that the situation is also a violation of the particular Article 30 in conjunction with Article E of the Revised Charter, which prohibits discrimination.

Adjudication method: Appreciation not only of the national provisions regarding their legal compliance with the European Social Charter, as well as of the existing legal practice, but also a sociological examination of the situation. Innovative judicial approaches, specifically as far as judgments regarding social rights are concerned.

Reference to other constitutional courts: No.

Reference to International Law: General Observations n^os 4 and 7 of the United Nations Committee of the Convention concerning Economic, Social and Cultural Rights.

Article 3 § 3 and 5 of the EU Treaty, (aiming to fight against social exclusion and the eradication of poverty), Article 208 of the Treaty of Functioning of the EU (policy objective of development cooperation: the reduction of poverty).

European Convention of Human Rights, inspiration, given the objective of indivisible human rights to preserve the dignity of the human being.

Relation with former jurisprudence/Innovative elements:

Judgements:

2007, n^o 39/2006 (FEANTSA v. France);

2006, n^o 31/2005 (CEDR v. Bulgaria);

2005, n^o 27/2004 (Centre européen des droits des Roms [CEDR] v. Italy);

2003, n^o 13/2002 (Autisme Europe v. France);

1999, n^o 1/1998 (International Commission of Jurists v. Portugal)

Bibliography (general): Lenya Samuel, Fundamental Social Rights: Case Law of the European Social Charter, Council of Europe Publishing, 2002.

Key words: Right to housing, poverty, social exclusion, prevention of discrimination.

Commentator/contact details: Nikitas Aliprantis.

IACL Project –Social Rights, Library of Social Rights

M. C. Mehta v. State of Tamil Nadu and Others

Country/Court: India/Supreme Court of India.

Year of Judgment/Nr of Decision: 2006 / (2006) 6 S.C.C. 756

Related social rights: Prohibition against child labour, right to work,

Constitutional provisions: Articles 24, 39(e), 41, 45 and 47 of the Indian Constitution.

Subject: The prohibition of child labour in industries involving hazardous work, and compensation and alternative employment for adult family members to be provided.

Summary of the Decision:

I. Facts of the case

M.C. Mehta, a lawyer, filed a petition against the violation of fundamental rights of children employed in the manufacture of match sticks and fireworks, in Sivakasi, Tamil Nadu. The Supreme Court admitted the petition and further took notice, on its own motion, of news reports of accidental death of workers at Sivakasi. The Court directed the constitution of a commission of inquiry to examine these accidental deaths. The Supreme Court reviewed this report, as well as submissions from the state of Tamil Nadu. It further took note of various legislative and constitutional prohibitions on child labour, including the Child Labour (Prohibition and Regulation) Act, 1986 (61 of 1986).

The Supreme Court then made the following directions: firstly, that all employers who contravened the provisions of the Child Labour (Prohibition and Regulation) Act, 1986 be directed to pay compensation of Rs. 20,000 for each child employed in contravention of the law; secondly, that this compensation be deposited into a fund to be established for rehabilitation of child labourers, thirdly, that the state governments provide alternative employment to an adult member of the family of such child labourers, and in the alternative, deposit money into the fund for each such child formerly employed. Finally, the Supreme Court directed all states in India to conduct a survey of child labour in identified ‘priority’ industries and follow the above compensation model for all children employed in hazardous employment.

II. The basic considerations of the case

1. The Supreme Court first sought to examine the scope of the prohibition on child labour in India. It noted that Article 24 of the Constitution contains a prohibition on any child below the age of fourteen years working in in “any factory or mine or engaged in any other hazardous employment”. It further noted that the Child Labour (Prohibition and Regulation) Act, 1986 specified certain hazardous industries and employments in which child labour was to be disallowed. The Supreme Court noted that while these and other legislative restrictions on child labour existed, they were, for the most part, not being implemented. Consequently, the Supreme Court held that it “thought it fit to travel beyond the confines of Sivakasi to which place this petition initially related..” and “tackle the problem of child labour, solution of which is necessary to build a better India.” Consequently the Supreme Court expanded the scope of this petition to cover all child labour in India.

2. The Supreme Court noted that the prohibition in Article 24 of the Constitution of India should be read with Articles 41, 45, 47 and 39(e) of the Constitution. These latter provisions provide for non-enforceable directive principles of state policy to provide the right to work and public assistance, to provide free and compulsory education to children, to raise the elvel of nutrition, and to protect the health of workers. Although these provisions are not judicially enforceable, the Supreme Court noted that it was the duty of all organs of the state, including the judiciary, to apply them when deciding matters of public importance.

3. The Supreme Court then noted that India had, by depositing an instrument of accession to the Convention on the Rights of the Child in 1992, undertaken an international obligation to progressively implement this convention. It further recognised measure undertaken b the International Labour Organisation to confirm that India has a commitment to protect children from economic exploitation, under Article 32 of the Convention on the Rights of the Child.

4. While surveying the provisions of the Child Labour (Prohibition and Regulation) Act, the Supreme Court noted that the Act provides, that if a person is convicted for employing child labour in contravention of the Act, such person can be punished with imprisonment for one year, or a fine of upto Rs. 20,000/-. Despite of this legal framework, the Supreme Court observed that the law was not being implemented well because of loopholes in the definitions of hazardous industries. It then noted that in the absence of alternative income, which was, according to the Court, a root cause of child labour, the problem could not be resolved. Consequently it passed the directions above, in “fulfilment of the legislative intendment behind the enactment of Child Labour (Prohibition and Regulation) Act, 1986.” It also observed, with respect to its directions on alternative employment, that while a strong case to recognise the right to work existed, it could not be done on because of economic considerations and state capacity to implement such a right.

Adjudication method: Reference to international obligations, statutory provisions, and constitutional intent, constitution of a commission of inquiry into the facts.

Reference to other constitutional courts: No.

Reference to International Law: Yes, the International Convention on the Rights of the

Child and various guidelines from the International Labour Organisation

Relation with former jurisprudence/Innovative elements: The decision in MC Mehta v. Tamil Nadu is interesting, as it moves beyond specific legislative provisions in the Child Labour (Prohibition and Regulation Act) 1986, to implement the constitutional prohibition against child labour. However, the Supreme Court does not stop at mere prohibition, but further directs compensatory measures which are aimed at rehabilitating and preventing child labour in the future. In doing so, certain ambiguities in the legal prohibitions of child labour are borne. For instance, the Supreme Court’s directions on the payment of compensation of Rs. 20,000 for every case of transgressing the prohibition on child labour has lead to confusion, as the Act itself provides for a maximum penalty of Rs. 20,000 for such transgression. In several subsequent decisions, lower courts have implemented this compensation rule in other cases of child labour, on the grounds that they are bound by law laid down by the Supreme Court. Procedurally, again, this has lead to confusion, as the Act prescribes that penalty should be imposed following conviction by a court, while the Supreme Court decision empowers Inspectors under the Act to collect the compensation. While this decision reinforces the prohibition against child labour, it has caused a certain amount of uncertainty about the implementation of this prohibition against child labour.

Key words: prohibition against child labour, child rights, right to work,

Commentator/contact details: Raeesa Vakil (Advocate, India), raeesa.vakil@gmail.com

IACL Project –Social Rights, Library of Social Rights

Country/Court: France/Conseil d’Etat.

Year of Judgment/Nr of Decision: 1950, Dehaene - Rec. Lebon p. 426.

Constitutional provisions: Article 7 of the 1946 Constitution Preamble..

Subject: Application of the right to strike to government employees.

Summary of the Decision:

I. Facts of the case

French civil servants were traditionally barred from striking, not by the law, but because the Conseil d’Etat had considered since the beginning of the 20th century that this was seen as contradicting the principle of public order and the necessity to maintain it. In 1946, a new Constitution entered into force (then replaced in 1958, although the Preamble of the 1946 Constitution remained into force as a part of the French “Bill of Rights” and still is today). This new fundamental law mentions the right to strike and its limit: the law. In 1948, a Chief Officer for a local administration went on strike, despite his superior’s order not to do so. Challenging the disciplinary notice on his file, he filed a motion at the Conseil d’Etat.

The Conseil d’Etat ruled that in the absence of a law regulating the right for civil servants to participate to strikes, government employees should enjoy the right to strike. This right to strike should be conciliated with the principle of public order protection, under the control of the Bureau Chief.

II. The basic considerations of the case

1. The Conseil d’Etat had himself limited the right to strike for civil servants. In 1909, it interpreted a 1905 law that was providing procedural rights for workers, as only applicable to employees from the private sector (case Winkell, 1909), in the absence of a specific provision applying these rights to public-sector workers. Following the principle of the pyramid of sources, this case-law was only applicable in the absence of a higher norm; no legislator had taken the subject to either protect, or restrict the right to strike, which has been established as a right only through the repeal of its prohibition (i.e. the right to strike was granted because it was no longer prohibited).

The 1946 Constitution, while short lived, contained a set of rights in its Preamble. This text, still in force today, establishes the right to strike in the following terms: “the right to strike is exercised within the framework of the laws which regulate it”. This new element allows the Conseil d’Etat to re-consider the question and by then, to confirm the constitutional value of the right to strike.

2. The question nonetheless becomes complex when the Conseil has to take in account three different elements.

a) First, how to reconcile the principles of public order, and the continuity of the public service, with the right to strike for public-service workers. The Conseil considered that this conciliation was in the hand of the bureau chiefs, who had to balance these principles and the newly constitutional right to strike.

b) The text of the 1946 Preamble clearly outlines what should constitute a limit for the right to strike: the law. However in this case the Conseil had to come up with the fact that the legislator did not, precisely, provide for a text regulating civil servants’ rights to participate to strikes. According to the Conseil, this justifies that bureau chiefs should regulate it instead. The Conseil considers that a law prohibiting the right to strike for a different, specific category of public-sector workers could not constitute a motive of sector-based prohibition.

c) The last element that was taken in account by the French highest administrative court is the equality between workers, although it is not directly mentioned by the Conseil. If the above-mentioned principles of public order and continuity of the public services are falling on the public-sector workers, yet a fundamentally different treatment and set of rights for both categories requires a compelling justification. If this justification was achieved under the previous legal background, the inclusion of the right to strike in a constitutional text modifies the calculation operated by judges. In this case, the complete prohibition of the right to strike would constitute a breach of equality between workers.

The reasoning of the Conseil d’Etat is that pursuant the right to strike, written at article 7 of the 1946 Constitution Preamble, in the absence of a law specifically regulating the right to strike for a category of public workers, the administration chiefs, under the control of the judges, should regulate it, conciliate the right to strike with the principle of public order, and with the principle of the continuity of the public service.

Adjudication method: reference to the right to strike and to the necessity to conciliate this right with the principle of public order and to the principle of the continuity of the public service.

Reference to other constitutional courts: No.

Reference to International Law: No.

Relation with former jurisprudence/Innovative elements: The Conseil confirms the constitutional value of the recenty-established right to strike, written at article 7 of the 1946 Constitution Preamble. Because this principle was not established by law, pursuant the silence of the legislator, the Conseil d’Etat also creates the principle, in the sense that it is the first public body to give it a legal value. By doing so, the Conseil puts itself at the forefront of the constitutional innovations of the 4^th and 5^th Republic; indeed the Conseil Constitutionnel only recognized the principle in 1971, more than two decades later.

Bibliography: J.-M. Sauvé, Le droit social, une oeuvre collective, (social law, a collective work) Introduction au colloque “Le Conseil d’Etat et le droit social”, (Introduction to the Conference on the Conseil d’Etat and Social Law) 26 October 2009. Available at: http://www.conseil-etat.fr/fr/discours-et-interventions/test-taille.html [Accessed September 2012].

A. Supiot, Revisiter les droits d’action collective, (Revisit the collective action rights) Droit Social, No. 7/8, 2002, 675.

Key words: Right to strike, collective action, public-sector workers, equality.

Commentator/contact details: Knut Fournier, University of Versailles-Saint Quentin, Versailles, France, knut.fournier@yahoo.fr

IACL Project –Social Rights, Library of Social Rights

Country/Court: France/Conseil d’Etat.

Year of Judgment/Nr of Decision: 2012, M. A., N° 356456 (not yet published)

Constitutional provisions: Article 3 ECHR, Article 8 ECHR

Subject: Fundamental value of the right to emergency housing.

Summary of the Decision:

I. Facts of the case

M. Karamoko, a Côte d’Ivoire national established in France, finds himself homeless after his apartment in the suburbs of Paris is destroyed in a fire. After spending two nights in emergency shelter provided by the state, M. Karamoko is forced to live in the street. He requests the police chief (as the state representative) to provide him with an emergency housing solution, which is refused. M. Karamoko challenges this refusal in the relief court, where he loses. He appeals the decision at the Conseil d’Etat.

The Conseil d’Etat ruled that the right to emergency housing is a fundamental freedom, which the state is violating in case it fails to provide emergency housing when this failure has serious consequences for the person who is homeless.

II. The basic considerations of the case

1. The previous court (a relief judge) had ruled that the failure for the state to provide emergency housing, despite being a breach of the law, did not amount to a violation of a fundamental freedom. In this particular procedure (référé liberté, or “right-emergency”) the existence of violation of a fundamental right is necessary for the judge to use special powers. This would allow the judge to order the Chief of Police to find a solution to a particularly serious housing emergency for instance. In its previous judgment, the court had decided to follow the arguments of the state, who claims that the capacity of shelters being inferior to the demand for emergency housing, social services should be able to determine which case is urgent, by taking in account the characteristics of homeless people applying for housing. The argument that adult males are less vulnerable fails to convince the Conseil d’Etat that the state failure does not constitute a breach of a fundamental freedom. By using this language, the Conseil creates a new fundamental right, the right to emergency housing. This right is not clearly defined and whether it stems from the right to dignity or the right to a family life is not clearly stated, although the plaintiff’s argument was based on these two components.

2. The creation of a fundamental entitlement to emergency housing opens the question of the state’s responsibility, and its extent. Against the claim that social services should be able to determine who is entitled to emergency housing, the Conseil offers a different reading: that the responsibility of the state should be determined by assessing the actions undertaken to remedy the situation. The implication is, while the state and the previous court believed that the state’s responsibility could be engaged in some cases and not engaged in others, the Conseil d’Etat considers that every failure from the state to provide housing in emergency situations can amount to a breach so serious that it would engage the state’s responsibility. This responsibility results in a practical obligation: the state, through the Chief of Police, must find a solution, which is consistent with the administrative judge’s practice to find solutions to urgent problems when it acts as a relief court, rather than to seek redress, or financial compensation.

3. Behind the ruling of the Conseil d’Etat is the existence of a recent French legislation, the Opposable Right to Housing (Droit au logement opposable, or DALO, a bill passed in 2007). It creates a procedure for homeless people to apply for housing in a way that is binding to the Chief of Police, who will then have the legal obligation to find a home to the applicant. However, DALO is complex, suffers from bureaucratic delays and fails to deliver the basic need that it is supposed to deliver. The Conseil d’Etat decision M. A in 2012 is to be seen in the perspective of the failure of the administration to provide the results expected from DALO. Very little individuals and families have managed to effectively obtain a housing solution through the complex and bureaucratic DALO process. The French administrative judge, through the emergency process, acts as a complement of the legislator to hold the administration to account, by creating a fast and simple relatively simple procedure to the same effect as the law.

The Conseil d’Etat supplements the state failure in providing emergency housing by opening the possibility of holding the state accountable in a fast-track procedure. The Conseil assesses the emergency of the situation, creates a fundamental right to emergency housing when the person in question is homeless and in a situation of medical, psychological and social need, and, although it does not find the state in violation of this right in this specific case, due to the efforts of the social services since the beginning of the procedure, clearly expands the boundaries of the state responsibility to provide for basic social needs.

Adjudication method: Engagement of state responsibility for violation of a fundamental right to emergency housing, with references to the right to dignity and the right to a family life.

Reference to other constitutional courts: No.

Reference to International Law: Article 3 and article 8 ECHR.

Relation with former jurisprudence/Innovative elements: The Conseil creates a new fundamental right to emergency housing. It makes an untold reference to the Opposable Right to Housing (Droit au logement opposable, or DALO, a bill passed in 2007), a legislative innovation aiming at the same goals, which produced very little results due to procedural hurdles.

Bibliography: Stéphane Rullac, Le droit au logement opposable et l'hébergement social: analyse sociojuridique d'une loi réactionnelle (The Opposable Right to Housing and Social Housing: socio-legal analysis of a reactive law), Droit Social, N° 7/8, 2012, 806-814.

Key words: Right to housing, opposable right, homeless, state responsibility, right to dignity, right to family life

Commentator/contact details: Knut Fournier, University of Versailles-Saint Quentin, Versailles, France, knut.fournier@yahoo.fr

1 comment:

UnknownMay 12, 2014 at 4:39 AM
The Conseil d'etat supplements the state disappointment in giving crisis lodging by opening the likelihood of considering the state responsible in a quick-track strategy. The Conseil surveys the crisis of the circumstances, makes a basic right to crisis lodging when the individual being referred to is homeless and in a circumstance of therapeutic, mental and social need, and, in spite of the fact that it doesn't discover the state in violation of this right in this particular case, because of the exertions of the social administrations since the start of the system, plainly stretches the limits of the state obligation to accommodate essential social needs.
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Bibliography: Grainne de Burca, Bruno de Witte, “Social Rights in Europe”.

Key words: Right to work, Right to children and young persons to protection, Right to vocational training, Right to social security, Right to a fair remuneration, Right to non-discrimination, Protection of social rights in economic crisis.

Bibliography: Grainne de Burca, Bruno de Witte, “Social Rights in Europe”.

Key words: Right to work, Right to children and young persons to protection, Right to vocational training, Right to social security, Right to a fair remuneration, Right to non-discrimination, Protection of social rights in economic crisis.

Bibliography: Randall Hansen, Patrick Weil, “Towards A European Nationality: Citizenship, Immigration and Nationality Law in the EU”,

Bibliography: Stéphane Rullac, Le droit au logement opposable et l'hébergement social: analyse sociojuridique d'une loi réactionnelle (The Opposable Right to Housing and Social Housing: socio-legal analysis of a reactive law), Droit Social, N° 7/8, 2012, 806-814.

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