Ministers' Deputies
Notes on the Agenda

CM/Notes/925/4.4a 22 April 20051
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925 Meeting, 4 May 2005
4 Human Rights


4.4 a European Social Charter –

Collective complaint No. 14/2003 by the International Federation of Human Rights Leagues (FIDH) against France

Reference documents
CM/Del/Dec(2005)917/4.1

Report from the European Committee of Social Rights to the Committee of Ministers
(secret document distributed by the Chair of the Deputies)

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Action

To examine, with a view to its adoption, the attached draft Resolution.

1. In application of Article 7 of the Protocol providing for a system of collective complaints, the European Committee of Social Rights transmitted its report on complaint No. 14/2003, International Federation of Human Rights Leagues (FIDH) against France, to the Committee of Ministers on 3 November 2004.

2. On 9 November 2004, the Chair of the Deputies transmitted the report of the European Committee of Social Rights to the representatives of the Contracting Parties to the Charter and the revised Charter.

States participating in the procedure

3. Under the terms of the Protocol, only those states having ratified the Social Charter are qualified to participate in this procedure. In the circumstances, the term “Social Charter” should be interpreted as the 1961 Charter and the 1996 revised Charter. The following States would therefore be concerned (as of 1 April 2005): Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, the Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, the Former Yugoslav Republic of Macedonia, Turkey and the United Kingdom.

Procedure

4. According to Article 9 of the Protocol:

      “1. On the basis of the report of the [European Committee of Social Rights], the Committee of Ministers shall adopt a resolution by a majority of those voting. If the [European Committee of Social Rights] finds that the Charter has not been applied in a satisfactory manner, the Committee of Ministers shall adopt, by a majority of two-thirds of those voting, a recommendation addressed to the Contracting Party concerned. In both cases, entitlement to voting shall be limited to the Contracting Parties to the Charter.

      2. At the request of the Contracting Party concerned, the Committee of Ministers may decide, where the report of the [European Committee of Social Rights] raises new issues, by a two-thirds majority of the Contracting Parties to the Charter, to consult the Governmental Committee”.

5. It follows from this provision that the collective complaint procedure ends by the adoption of a resolution.

6. However, in the case where non-satisfactory application of the Charter has been found, the Committee of Ministers shall adopt a recommendation by a majority of two-thirds of those voting. The aim of the procedure is to recommend to the state concerned the measures to be taken with a view to bringing the situation into conformity with the Charter.

7. In accordance with Article 10 of the Protocol, the European Committee of Social Rights shall examine the situation again within the framework of the reporting system. The Contracting Parties shall, in their next reports, provide information on the measures taken to give effect to the Committee of Ministers' recommendation.

Collective complaint No. 14/2003

8. The complaint concerns the right to medical assistance of foreign adults and children without sufficient resources. The European Committee of Social Rights concluded that the situation constitutes a violation of Articles 17 (the right of children and young persons to social, legal and economic protection) of the revised European Social Charter.

9. In its decision on the merits, the European Committee of Social Rights states that:

“.… i. On the interpretation of the Appendix to the Charter

      26. The present complaint raises issues of primary importance in the interpretation of the Charter. In this respect, the Committee makes it clear that, when it has to interpret the Charter, it does so on the basis of the 1969 Vienna Convention on the Law of Treaties. Article 31§1 of the said Convention states:

        “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.“

      27. The Charter was envisaged as a human rights instrument to complement the European Convention on Human Rights. It is a living instrument dedicated to certain values which inspired it : dignity, autonomy, equality and solidarity. The rights guaranteed are not ends in themselves but they complete the rights enshrined in the European Convention of Human Rights.

      28. Indeed, according to the Vienna Declaration of 1993, all human rights are “universal, indivisible and interdependent and interrelated” (para. 5). The Committee is therefore mindful of the complex interaction between both sets of rights.

      29. Thus, the Charter must be interpreted so as to give life and meaning to fundamental social rights. It follows inter alia that restrictions on rights are to be read restrictively, i. e. understood in such a manner as to preserve intact the essence of the right and to achieve the overall purpose of the Charter.

      30. As concerns the present complaint, the Committee has to decide how the restriction in the Appendix ought to be read given the primary purpose of the Charter as defined above. The restriction attaches to a wide variety of social rights in Articles 1-17 and impacts on them differently. In the circumstances of this particular case, it treads on a right of fundamental importance to the individual since it is connected to the right to life itself and goes to the very dignity of the human being. Furthermore, the restriction in this instance impacts adversely on children who are exposed to the risk of no medical treatment.

      31. Human dignity is the fundamental value and indeed the core of positive European human rights law – whether under the European Social Charter or under the European Convention of Human Rights - and health care is a prerequisite for the preservation of human dignity.

      32. The Committee holds that legislation or practice which denies entitlement to medical assistance to foreign nationals, within the territory of a State Party, even if they are there illegally, is contrary to the Charter.

        ii. On the alleged violation of Articles 13 and 17 of the Charter

      33. As regards Article 13, the Committee notes that the legislation in question does not deprive illegal immigrants of all entitlement to medical assistance, since it does provide for:

      – state medical assistance (AME) to meet certain costs incurred by any foreign national resident in France for an uninterrupted period of more than three months, without meeting the lawful residence conditions;

      – treatment for other illegal immigrants for emergencies and life threatening conditions.

      34. It is true that the concept of emergencies and life threatening conditions is not sufficiently precise and that the competent body to take decisions in this field is not clearly identified. It is also true that there are numerous difficulties in the implementation in practice of the provisions applicable to illegal immigrants in France for more than 3 months and that the costs to be met by the state are narrowly defined. However given the existence of a form of medical assistance benefiting these persons, the Committee, being in doubt, considers that France does not violate Article 13 of the Revised Charter.

      35. With respect to Article 17, the Committee recalls that several provisions of the Revised Charter guarantee the Rights of Children and young persons. The text of Part I provides that:

        “The Parties accept as the aim of their policy, to be pursued by all appropriate means both national and international in character, the attainment of conditions in which the following rights and principles may be effectively realised :
        (…)

      7 Children and young persons have the right to a special protection against the physical and moral hazards to which they are exposed

        (…)

      17 Children and young persons have the right to appropriate social, legal and economic protection. (…)”

      36. Article 17 of the Revised Charter is further directly inspired by the United Nations Convention on the Rights of the Child. It protects in a general manner the right of children and young persons, including unaccompanied minors, to care and assistance. Yet, the Committee notes that

      a) medical assistance to the above target group in France is limited to situations that involve an immediate threat to life;

      b) children of illegal immigrants are only admitted to the medical assistance scheme after a certain time.

      37. For these reasons, the Committee considers that the situation is not in conformity with Article 17.

    38. In respect of both Article 13 and Article 17, the Committee considers that the other arguments advanced by the parties are secondary and do not modify its assessment of the situation.

      CONCLUSION

      For these reasons, the Committee concludes

        1. by 9 votes to 4 that there is no violation of Article 13§4 of the Revised Charter;

        2. by 7 votes to 6 that there is a violation of Article 17 of the Revised Charter.”

10. It is recalled that in previous collective complaints where the European Committee of Social Rights found the situation not to be in conformity with the Charter, the Committee of Ministers has either adopted a recommendation to the state against which the complaint was lodged or adopted a resolution. The latter has been the case where the state concerned made a commitment to take specific measures to bring the situation into conformity with the Charter.

11. At the 913th meeting (2 February 2005, item 4.1), the French delegation circulated a paper indicating that a circular was in preparation and it circulated the text. On the basis of this information the Deputies requested the Secretariat to prepare a draft resolution with a view to examining it at one of their forthcoming meetings when the circular would be signed 917th meeting (2 March 2005, item 4.1). The signature took place on 16 March 2005.

12. The Deputies are invited to adopt the attached draft Resolution.

Financing assured: YES

DRAFT DECISION

925th meeting – 4 May 2005

Item 4.4a

European Social Charter –
Collective complaint No. 14/2003 by the International Federation of Human Rights Leagues (FIDH) against France

(CM/Del/Dec(2005)917/4.1, Report from the European Committee of Social Rights to the Committee of Ministers)

Decision

In conformity with Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints, the Deputies in their composition restricted to the Representatives of the Contracting Parties to the European Social Charter or to the Revised European Social Charter in the Committee of Ministers,2 adopt Resolution No. ChS(2005) … as it appears in Appendix .. to the present volume of Decisions. <see Appendix to the present Notes>

Appendix I
(item 4.4a)

Resolution ResChS(2005) …
Collective complaint No. 14/2003
by the International Federation of Human Rights Leagues –
FIDH against France

(Adopted by the Committee of Ministers on 4 May 2005
at the 925th meeting of the Ministers' Deputies)

The Committee of Ministers3,

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 3 March 2003 by FIDH against France;

Having regard to the report transmitted by the European Committee of Social Rights, in which the situation in France as regards the right of children in an illegal situation to benefit from medical assistance constitutes a violation of Article 17 of the Revised Charter for the following reasons:

      “35. With respect to Article 17, the Committee recalls that several provisions of the Revised Charter guarantee the Rights of Children and young persons. The text of Part I provides that:

        “The Parties accept as the aim of their policy, to be pursued by all appropriate means both national and international in character, the attainment of conditions in which the following rights and principles may be effectively realised :
        (…)

      7 Children and young persons have the right to a special protection against the physical and moral hazards to which they are exposed

        (…)

      17 Children and young persons have the right to appropriate social, legal and economic protection. (…)”

      36. Article 17 of the Revised Charter is further directly inspired by the United Nations Convention on the Rights of the Child. It protects in a general manner the right of children and young persons, including unaccompanied minors, to care and assistance. Yet, the Committee notes that

      a) medical assistance to the above target group in France is limited to situations that involve an immediate threat to life;

      b) children of illegal immigrants are only admitted to the medical assistance scheme after a certain time.

      37. For these reasons, the Committee considers that the situation is not in conformity with Article 17.”

Having regard to the information communicated by the French delegation during the 913th and 917th meetings (2 February and 2 March 2005) of the Ministers Deputies,

Takes notes of the circular DHOS/DSS/DGAS no. 141 of 16 March 2005 on the implementation of urgent care delivered to foreigners resident in France in an illegal manner and non beneficiaries of State Medical Assistance.

Note 1 This document has been classified restricted at the date of issue. Unless the Committee of Ministers decides otherwise, it will be declassified according to the rules set up in Resolution Res(2001)6 on access to Council of Europe documents.
Note 2 Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, the Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, the Former Yugoslav Republic of Macedonia, Turkey and the United Kingdom.

3 In conformity with Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints, the Contracting Parties to the European Social Charter or to the Revised Social Charter have participated in the vote: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, the Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, the Former Yugoslav Republic of Macedonia, Turkey and the United Kingdom.



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