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Courts Archives: Constitutional Court

Judgement of the Federal Constitutional Court, 1 BvL 10/10

Year: 2012 (Date of Decision: 18 July, 2012)

Forum, Country: Constitutional Court; Germany

Standards, Rights: Core content; Human dignity; Welfare State; Right to an adequate standard of living; Right to social security; Migrants

Summary Background: The issue at stake was whether the amount of cash benefits for asylum seekers was compatible with the fundamental right to a minimum level of existence as emerging from the right to human dignity (article 1.1 of the Basic Law) read in conjunction with the principle of a social welfare State (article 20.1 of the Basic Law).

Holding: The Court held that the provisions governing the cash benefits in question violate the fundamental right to the guarantee of a dignified minimum existence protected under the German Basic Law [paras. 1 and C.I.1]. This right is universal and applies to both nationals and foreign citizens [para. C.I.1.a]. It includes “…both humans’ physical existence, that is food, clothing, household items, housing, heating, hygiene and health, and guarantees the possibility to maintain interpersonal relationships and a minimal degree of participation in social, cultural and political life, since a human as a person necessarily exists in social context.” [para. C.I.1.b]. The benefits in question were just not enough to live a dignified standard of life.

The Court found that the benefits had not been altered since 1993, despite significant price increases in Germany and stated that adequate benefits have to be established in the particular context of circumstances in Germany. The Basic Law does not allow that needs for a dignified life be calculated at a lower level by referring to the existence levels in the country of origin or in other countries [para. C.I.1.d].

The Court was clear that political considerations must not undermine the principle of existenzminimum, stating that Migration-policy considerations of keeping benefits paid to asylum seekers and refugees low to avoid incentives for migration…may generally not justify any reduction of benefits below the physical and socio-cultural existential minimum existence… Human dignity…may not be modified in light of migration-policy considerations[para. C.II.2.c]. Further, the Constitution did not allow for differentiation among recipients of basic social benefits in accordance to their residence status; the legislature must always be guided by the concrete needs to secure a person’s existence [para. C.I.1.dd].

In addition the Court indicated that it was not clear that a realistic, needs-oriented calculation had been made in determining the amount of benefits. The decision mandates that it must be possible to calculate the amounts in a transparent manner that responds to actual and current needs [para. C.I.1.f].

In conclusion, the Court ordered the legislature to immediately enact new provisions in relation to cash benefits for asylum seekers that would secure them a dignified minimum existence. As an interim measure, the Court also put into place a transitional arrangement for the payment of increased cash benefits [paras. D.1 and 2].

Additional Comments: The decision also refers to the margin of appreciation principle in holding that the State enjoys such a margin in determining the form in which the benefits are given (in cash, kind or services) and the amount of the benefits to secure a minimum existence [para. C.I.1.d].

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Control of constitutionality – interlocutory action (Giudizio di legittimità costituzionale in via incidentale)

Year: 2011 (Date of Decision: 12 December, 2011)

Forum, Country: Constitutional Court; Italy

Standards, Rights: Non-discrimination and equal protection of the law; Right to health; Right to education; Right to social security; Children; Persons with disabilities; Migrants

Summary Background: Juveniles of non-European Union origin with disabilities and without a long-term resident permit, which can be acquired only after five years of permanent residency, and their families were excluded from the benefits of financial assistance (indennità di frequenza). The allowance aims at helping disabled juveniles and their families who face economic difficulties in covering the medical needs, as well as other special needs they may have, in the area of education and vocational training to promote their integration in society. The Genoa Court of Appeal referred the case to the Constitutional Court for the review of the constitutionality of this discrimination in the assignment of this social benefit (article 80.19 of Law no. 388 of 23 December 2000).

Holding: Pursuant to article 117.1 of the Constitution, which requires legislation to comply with international obligations, the Constitutional Court considered that the exclusion from the assistance scheme of non EU disabled juveniles and their families to be in breach of the right to non-discrimination as guaranteed under article 14 of the ECHR and of article 3 of the Constitution providing for equality of treatment [Considerato in diritto, para. 5]. The Court also found violations of article 32 of the Constitution, protecting the right to health; article 34, protecting the right to education; and article 38, protecting the right to social assistance [Considerato in diritto, para. 1].

Additional Comments: The Court makes an implicit distinction between documented and undocumented migrants. This decision is thus limited to the discrimination between citizens and documented migrants based on the long-term nature of the permit. The Court alludes to the possibility of a different outcome in respect of undocumented migrants, considering the existing ECtHR jurisprudence.

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City of Johannesburg Metropolitan Municipality v. Blue Moonlight Properties 39 (Pty) Ltd and Another, CCT 37/11 [2011] ZACC 33

Year: 2011 (Date of Decision: 1 December, 2011)

Forum, Country: Constitutional Court; South Africa

Standards, Rights: Reasonableness; Right to adequate housing

Summary Background: The case raised the issue of occupiers of 7 Saratoga Avenue – a community of 86 poor people living in a disused industrial property in Berea, Johannesburg. In 2006, they were sued for eviction by the owner of the property. The question submitted for the decision of the court was whether the occupiers must be evicted to allow the owner to exercise their rights regarding the property and, if so, whether their eviction gave rise to the obligation of the City to provide them with accommodation, even if they were evicted from a private estate and not from public land. In the case, the question of the resources of the City was also raised.

Holding: The Court accordingly upheld the order of the Supreme Court of Appeal [SCA] by ordering the eviction of the occupiers 14 days after the City was ordered to provide those occupiers who were in need with temporary accommodation. This was to ensure that they would not be rendered homeless because of the eviction. The Court found that the City had a “duty to plan and budget proactively for situations like that of the Occupiers” [para. 67] and that its lack of resources was the product of its incorrect understanding of the relevant legislation. Furthermore, the Court upheld the finding of the SCA that the City was not able to show that it was incapable of meeting the needs of the Occupiers. The Court further stated that “[t]he City provided information relating specifically to its housing budget, but did not provide information relating to its budget situation in general. We do not know exactly what the City’s overall financial position is. This Court’s determination of the reasonableness of measures within available resources cannot be restricted by budgetary and other decisions that may well have resulted from a mistaken understanding of constitutional or statutory obligations. In other words, it is not good enough for the City to state that it has not budgeted for something, if it should indeed have planned and budgeted for it in the fulfilment of its obligations” [para. 74].

Additional Comments: The Occupiers submitted that ‘it would not be just and equitable to grant an eviction order, if the order would result in homelessness’ [para. 32]. As for the City, it contended that the eviction was sought at the instance of the owner of the property, and noted that it cannot be “held responsible for providing accommodation to all people who are evicted by private landowners” [para. 32].

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Decision T-841

Year: 2011 (Date of Decision: 3 November, 2011)

Forum, Country: Constitutional Court; Colombia

Standards, Rights: Non-discrimination and equal protection of the law; Right to health; Children; Women

Summary Background: An injunction was filed in this case to safeguard a juvenile’s human right to health, in particular, her mental health. The girl’s doctor had ascertained that her pregnancy posed a risk to her mental health, which qualifies as one of the circumstances under which a legal abortion can be performed in Colombia. However, a particular health administrator that was part of the Colombian social insurance system was said to have unreasonably created so many administrative obstacles that the girl was compelled to continue her pregnancy even thought this was detrimentalto her health.

Holding: The Court, citing applicable international human rights instruments including the ICESCR, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child, strongly affirmed women’s rights to reproductive autonomy and access to health services without discrimination [para. 22], especially in cases where the reproductive rights of juveniles are at stake.

The Court emphasized that the health administrators operating as part of the social insurance system have an obligation to provide adequate and timely access to health services including abortion [paras. 17. III and 35]. In this case, the administrator ignored this obligation and posed a grave risk to the child’s health, on the basis of a mere technicality [para. 21].

The Court ordered the health administrator in question to pay appropriate compensation and prohibited the imposition of additional conditions that unreasonably delay access to abortion services in future cases, for example requiring a waiting period or requiring necessary certification from only an affiliated doctor.

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Tahirzade v. AMEC

Year: 2011 (Date of Decision: 15 July, 2011)

Forum, Country: Constitutional Court, Azerbaijan

Standards, Rights: Right to decent work; Right to health; Right to life

Summary Background: Mr Tahirzade initiated civil proceedings against the “AMEC Services Limited” company, claiming compensation for harm caused to his health in the performance of his employment. The assessment of this claim required an interpretation by the Constitutional Court of the expressions “employer, guilty (completely or partially)” and “through employer’s fault” contained in the text of article

1. The employer who is fully or partially responsible for unfortunate incidents or work related illness is to pay in full both compensation for losses or poor health of the employee, and his medical bills for curing himself, and also pay the costs of social security organizations which paid the employee pension and stipends. 2. The employee who has suffered health problems as a result of production accidents or work illnesses that were employer’s fault, or family members and other dependents of an employee who has died because of the same reasons are to be paid a lump sum amount, monthly payments, and other extra fees related to the unfortunate incident as specified by law.
of the Labour Code.

Holding: The Court addressed the right to work as enshrined in article

I. Labor is the basis of personal and public prosperity. II. Everyone has the right to choose independently, based on his/her abilities, kind of activity, profession, occupation and place of work. III. Nobody might be forced to work. IV. Labor agreements are concluded voluntarily. Nobody may be forced to conclude labor agreement. V. Based on decisions of the law court there might be cases of forced labor, terms and conditions being specified by legislation; forced labor is permissible due to orders of authorized persons during the term of army service, state of emergency or martial law. VI. Everyone has the right to work in safe and healthy conditions, to get remuneration for his/her work without any discrimination, not less than minimum wages rate established by the state. VII. Unemployed persons have the right to receive social allowances from the state.III. The state will do its best to liquidate unemployment.
of the Constitution. As per article 35.I, the right to work impacts on the welfare and development of individuals and families and plays a vital role in both personal and public wellbeing. The Court affirmed the right to fair payment of wages and safe working conditions. It reaffirmed the legal protection of the right to safe and healthy working conditions and to receive payment from employment at or above the minimum wage set, and free from discrimination (article 35.VI Azerbaijan Constitution.) The Court emphasized the link between this right and the rights to life and health.

With regard to financial liability and compensation for violation of labour safety regulations, an employer may only be held liable where their guilt is proven. The Court considered article 239 of the Labour Code and held that an employer will only be liable for harm suffered to an employee’s health due to violations of labour safety standards where the employer is at fault. Article 239 of the Code requires an employer guilty of occupational accident or illness to pay full compensation to the employee for damage resulting from the injury, as well as costs of treatment, benefits and other additional costs established by the Civil Code.

According to the text of article 239 of the Labour Code, regardless of the full or partial fault of an employer, where the conditions in article 191 of the Code are satisfied (a. detection of actual damage, b. the act/omission of the guilty party contradicts a law and c. causal link between act/omission and damage suffered), the employer bears full responsibility for providing redress to the employee.

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Decision of T-051/11 Julio David Perez v. Mayor’s Office of Monteria. File T-2650185

Year: 2011 (Date of Decision: 4 February, 2011)

Forum, Country: Constitutional Court; Colombia

Standards, Rights: Non-discrimination and equal protection of the law; Right to education; Persons with disabilities

Summary Background: Issue at stake in this case: whether the right to education was violated by denial of availability of a sign interpreter in College due to less than ten hearing impaired students in class. The complainant was a student with hearing disabilities who was adversely affected by the aforementioned denial.

Holding: Referencing elements of the UN and regional human rights law framework (including General Comment 5 by the Committee on Economic, Social and Cultural Rights, the Inter-American Convention of Elimination of all forms of Discrimination Against Person with Disabilities, article

1. States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community. 2. States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child’s condition and to the circumstances of the parents or others caring for the child. 3. Recognizing the special needs of a disabled child, assistance extended in accordance with paragraph 2 of the present article shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child, and shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child’s achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development. 4. States Parties shall promote, in the spirit of international cooperation, the exchange of appropriate information in the field of preventive health care and of medical, psychological and functional treatment of disabled children, including dissemination of and access to information concerning methods of rehabilitation, education and vocational services, with the aim of enabling States Parties to improve their capabilities and skills and to widen their experience in these areas. In this regard, particular account shall be taken of the needs of developing countries.
of the Convention on the Right of the Child) [para. IV. 4.2.] as well as articles of the Colombian Constitution [para. IV. 4.1.] and national case law [para. IV. 4.4.], the Constitutional Court held that the complainant’s right to education had been violated.

In addition, the Court concluded that the law that decreed appointing sign language interpreters only in the case of minimum enrolment of hearing-impaired students was unconstitutional, as the mandated requirements were discriminatory and served to deepen the stigmatization and exclusion of students with hearing disabilities [para. V].

The Court required Monteria to make appropriate amendments to the budgets, planning, curricula and organization of its educational institutions to effectively realize the right to education for people with hearing disabilities [para. V]

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