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16 april 2015

Conference of European Churches (CEC) v. the Netherlands - De #bedbadbrood uitspraak

Resolution CM/ResChS(2015)5
Conference of European Churches (CEC) v. the Netherlands,
Complaint No. 90/2013

(Adopted by the Committee of Ministers on 15 April 2015
at the 1225th meeting of the Ministers’ Deputies)

The Committee of Ministers,1
Having regard to Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints;
Taking into consideration the complaint lodged on 17 January 2013 by the Conference of European Churches (CEC) against the Netherlands;
Having regard to the report transmitted by the European Committee of Social Rights containing its decision on the merits, in which it concluded:
    - unanimously, that there is a violation of Article 13§4 of the Charter
    Applicability of Article 13§4 to persons concerned by the complaint
    The issues raised relate to migrant adults in an irregular situation staying within the jurisdiction of the Netherlands as undocumented migrants or asylumseekers, whose applications for protection have been rejected.
    Pursuant to paragraph 1 of the Appendix to the Charter, the persons covered by Articles 1 to 17 and 20 to 31 of the Charter include foreigners only insofar as they are nationals of other Parties lawfully resident or working regularly within the territory of the Party concerned.

    In certain cases and under certain circumstances, the provisions of the Charter may be applied to migrants in an irregular situation. In connection with complaints concerning children, the Committee has held that this is the case with regard to health, medical assistance, social, legal and economic protection and shelter.
    The assessment concerning the substantial provisions of the Charter must be based on a human rights approach, which has consistently been applied by the Committee.
    In this respect, reference is equally made to Article H of the Charter, according to which the provisions of the Charter shall not prejudice the provisions of any multilateral treaties, under which more favourable treatment would be accorded to the persons protected.
    The complaint concerns the provision of the necessary food, water, shelter and clothing to adult migrants in an irregular situation. It considers the issues at hand to be closely linked to the realisation of the most fundamental rights of these persons, as well as to their human dignity.
    Alleged violation of Article 13§4 of the Charter
    In spite of the efforts made by the domestic authorities, there is nothing to demonstrate that the situation, that has been found to be in violation of Article 13§4 under the reporting procedure, has been redressed with regard to adult migrants in an irregular situation.
    To the contrary, a large majority of adult migrants are not offered any emergency social assistance under the domestic legislation.
    In light of the international materials mentioned, the argument on the lack of international obligations to offer protection to adult migrants in an irregular situation cannot be accepted. It firstly notes in this regard that the relevant instruments of the United Nations also guarantee an adequate standard of living, that is, food, clothing and housing, to everyone without limitations based on the regularity of residency.
    Even though the European Convention on Human Rights and the relevant legal rules of the European Union on asylum are applicable only to foreigners staying in a regular manner within the territory of the States Parties, both the European Court of Human Rights and the Court of Justice in their recent caselaw have acknowledged the importance of preserving human dignity in connection with the minimum protection provided to migrants.
    The scope of the Charter is broader and requires that necessary emergency social assistance be granted also to those who do not, or no longer, fulfil the criteria of entitlement to assistance specified in the above instruments, that is, also to migrants staying in the territory of the States Parties in an irregular manner, for instance pursuant to their expulsion. The Charter requires that emergency social assistance be granted without any conditions to nationals of those States Parties to the Charter who are not member States of the Union. The provision of emergency assistance cannot be made conditional upon the willingness of the persons concerned to co-operate in the organisation of their own expulsion.
    It is undisputed between the parties that the local authorities may grant emergency assistance to adult migrants in need of such assistance when in an irregular situation, and it is also true that this is done by third parties such as non-governmental organisations, churches and individuals. However, in a situation where notably this delegation of tasks or responsibilities is not based on any legal, administrative or financial agreements or safeguards agreed upon between the government and the bodies factually providing assistance and in order to provide for legal certainty, the prevailing situation cannot fulfil the positive obligations assumed under Article 13§4.
    The reasons for the immigration policy behind this situation are noted. The denial of emergency shelter to those individuals who are still in the territory of the Netherlands is nevertheless not an absolutely necessary measure for achieving the aims of the immigration policy. No indication on the concrete effects of this measure has been given.
    The persons concerned by the complaint undeniably find themselves at risk of serious irreparable harm to their life and human dignity when excluded from access to shelter, food and clothing. Pursuant to established caselaw under the reporting procedure, access to food, water, as well as to such basic amenities as a safe place to sleep and clothes fulfilling the minimum requirements for survival in the prevailing weather conditions are necessary for the basic subsistence of any human being.
    Even within the framework of the current migration policy, less onerous means remain available with regard to the emergency treatment provided to those individuals who have overstayed their legal entitlement to remain in the country.
    The legal and practical measures denying the right to emergency assistance accordingly restrict the right of adult migrants in an irregular situation and without adequate resources in the Netherlands in a disproportionate manner.
    - unanimously, that there is a violation of Article 31§2 of the Charter
    Applicability of Article 31§2 to persons concerned by the complaint
    Pursuant to the observations on the applicability of the Charter made under Article 13§4 above, also Article 31§2 applies to adult migrants in an irregular situation.
    Alleged violation of Article 31§2 of the Charter
    A large majority of adult migrants in an irregular situation are provided shelter neither in law, nor in practice.
    In light of the Committee’s established caselaw, shelter must be provided also to adult migrants in an irregular situation, even when they are requested to leave the country and even though they may not require that long-term accommodation in a more permanent housing be offered to them. The right to shelter is closely connected to the human dignity of every person regardless of their residence status. The situation, on the basis of which a violation has been found under Article 13§4, also amounts to a violation of Article 31§2.
Having regard to the information communicated by the delegation of the Netherlands on 16 September 2014 (see appendix to the resolution),
1. takes note of the report of the ECSR and in particular the concerns communicated by the Dutch Government (see appendix to the Resolution);
2. recalls that the powers entrusted to the ECSR are firmly rooted in the Charter itself and recognises that the decision of the ECSR raises complex issues in this regard and in relation to the obligation of States parties to respect the Charter;
3. recalls the limitation of the scope of the European Social Charter (revised), laid down in paragraph 1 of the appendix to the Charter;
4. looks forward to the Netherlands reporting on any possible developments in the issue.
Appendix to Resolution CM/ResChS(2015)5
Address by the Representative of the Netherlands at the GR-SOC meeting of 16 September 2014 ‒
Conference of European Churches (CEC) v. the Netherlands, Complaint No. 90/2013
The ECSR has issued two decisions against the Netherlands (CEC and FEANTSA). My government has serious concerns about these decisions and today I would like to share with you those concerns.
Naturally, we realise that it is not unusual for States to have difficulties with decisions of the Committee, especially when decisions are not entirely favourable for a State. The Netherlands acknowledges that reports and decisions of the ECSR should be given appropriate follow-up in order to repair any violations found and prevent future violations.
However, in the cases now on the agenda, it seems that a straightforward provision of the European Social Charter to which we are all parties, is being ignored. As this should be of concern to all parties, I would like to focus my intervention on that aspect.
The Netherlands is one of the 15 Council of Europe member States that have ratified the collective complaints protocol of the European Charter. In both the decisions against the Netherlands, the ECSR has concluded that the Netherlands is in violation with several provisions of the Social Charter, because the Netherlands has – according to the ECSR – not recognised certain rights enshrined in the Charter to persons unlawfully present on Dutch territory.
In the appendix to the Social Charter the Contracting Parties aimed to exclude from the scope of the Charter all aliens who are not lawfully residing on the territory of a Party. This provision is fully coherent with the sovereign right of States to decide on the entry of foreigners on their territory.
It is unchallenged that by introducing this provision, State Parties had in mind a limited personal scope of the Charter. And they still do so, given the lack of favourable response to a letter dated 13 July 2011 of the President of the ECSR, by which Parties were invited to abandon the provision.
The ECSR’s unwarranted interpretation risks jeopardising the trust that States place in what they have agreed upon in treaty law. Any interpretation of a treaty should be in good faith and cannot unilaterally impose completely new obligations upon member States. The decisions by the ECSR do not merely contain an extensive interpretation of the treaty provisions; they contain an interpretation which is simply contra legem.
We have serious concerns how this will affect the authority of the Committee in the long run and how this will affect the effectiveness of the Social Charter itself. As one result, the majority of States not having accepted the collective right of complaint may be discouraged from doing so.
Therefore, the Netherlands seeks the support of you, our fellow States parties to the Charter, in confirming the validity of the limitation of the personal scope of the Charter.
1 In accordance with Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints the following Contracting Parties to the European Social Charter or the revised European Social Charter have participated in the vote: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Republic of Moldova, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, Serbia, Slovak Republic, Slovenia, Spain, Sweden, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and United Kingdom.
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