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Principles and standards Archives: Core content

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

On 03/09/2014 in

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].

Link to Full Case: https://www.bundesverfassungsgericht.de/en/decisions/ls20120718_1bvl001010en.html

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Cases No. 19003-2011-00638-Of.1a; No. 19003-2011-00639-Of.2a; No. 19003- 2011-00637-Of.3a; No. 19003-2011- 00641-Of.1

On 03/04/2013 in

Year: 2013 (Date of Decisions (in the order cited above): 3 April 2013; 12 April 2013; 10 May 2013; 31 May 2013)

Forum, Country: Children’s and Juvenile Court; Guatemala

Standards, Rights: Best interests of the child; Core content; Right to adequate food; Right to life; Right to an adequate standard of living; Right to health; Right to housing; Children

Summary Background: The poverty level in the municipality of Camotán in the Guatemalan Department of Chiquimula has chronically been very high and was worsened in 2001 and 2002 as a result of a food crisis, caused by a drought and the effects of a drop in the international price of coffee on the rural economy. The production of coffee was the single most important base for subsistence of the local population. The food crisis generated severe malnutrition and increased child mortality, especially affecting children under 5. Despite the existence of some local government policies to eradicate the famine in the region, the overall situation remained unchanged, which left children of the municipality vulnerable. In November 2011, this led the parents of the girls, Dina Marilú, Mavélita Lucila Interiano Amador and Mayra Amador Raymundo; and the boys Brayan René, Espino Ramírez and Leonel Amador García, supported by the civil society Guatemala Without Hunger Campaign, to file a case in accordance with article 104 of the Law for Integral Protection of Children and Adolescents, which seeks to examine and settle complaints arising from situations that threaten or violate the rights of children and adolescents. The legal proceedings initiated against the State of Guatemala alleged that the State violated through omission the right to food, the rights to life, health, education, and an adequate standard of living and housing, of the children suffering from acute malnutrition in the municipality.

Holding: The Department of Zacapa Court for the Protection of Children and Adolescents and for adolescents in conflict with the criminal law based its legal analysis on national and international law. In particular, the analysis focused on the principle of the best interests of the child as a person with full legal personality, and on the obligation of the State to implement measures and mechanisms to ensure the effective fulfilment of ESC rights.

The Court contemplated the facts in the light of the State’s duties under international instruments, including the ICESCR and the ICRC, to which the State is a party and that guarantee the right to be free from hunger, and the right to adequate food as a fundamental basis for the enjoyment of other human rights [para. C, Análisis de las disposiciones legales correspondientes].

Based on the facts and arguments described above, the Court for Children and Adolescents and the Court for Adolescents in Conflict with Criminal Law of the Department of Zacapa found a violation of the rights to food, life, an adequate standard of living, health and housing of the children parties to the cases and the responsibility of the State of Guatemala for such violations through omission, as it failed to provide effective programs, policies, actions and measures to address the children’s poor health caused by the chronic and acute undernourishment and the lack of adequate food [para. C, Parte resolutiva, I].

In addition, the Court ordered the enforcement of various measures for a comprehensive reparation for the physical, social and psychological damages suffered by the children. These short and longer-term measures included the implementation of policies that guarantee the enjoyment of the right to food, health and adequate housing for the whole family. In particular, the Ministry of Agriculture, Livestock, and Food must deliver food aid to the families of the affected children; and provide seeds and necessary technical support to allow the families to grow adequate food.

In addition, the Court ordered the implementation of various programs such as in the area of health, psychological care and education, which shall enable the development of children in their family environment [para. C, Parte resolutiva, II]

Additional Comments: The expert opinions and reports especially from medical specialists working on child malnutrition, as well as the active support of civil society organizations and a broader social mobilization played a determining role in achieving the decision based on international human rights law standards.

Link to Full Case: https://www.icj.org/guatemala-condenado-porviolaciones-a-derechos-economicos-sociales-yculturales/

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A v. Municipality of Egedal and Ministry of Labour

On 15/02/2012 in

Year: 2012 (Date of Decision: 15 February, 2012)

Forum, Country: Supreme Court; Denmark

Standards, Rights: Core content; Non-discrimination and equal protection of the law; Margin of discretion; Right to an adequate standard of living; Right to social security; Migrants

Summary Background: After having been granted refugee status in 2003, the applicant received ‘Start Help’ benefits (reduced unemployment benefits) until 2007, instead of regular unemployment benefits, which could only be granted to persons who had spent at least seven years in Denmark.

He claimed that this violates article 75.2 of the Constitution, which obliges the State to help those who cannot support themselves. Moreover, he alleged a violation of article

articleThe enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
ECHR (prohibition of discrimination) in conjunction with article
1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, 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.
(right to respect for private and family life) and article
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
Protocol 1 ECHR (protection of property) because the requirement of having spent at least seven years in Denmark affects relatively more foreigners than Danish nationals and therefore constituted an indirect discrimination.

Holding: The Supreme Court found that article 75.2 of the Constitution entails an obligation for the State to ensure a minimum level of existence for persons covered by it. However, the court found that the size of the ‘Start Help’ and other benefits that the applicant received were sufficient to satisfy this provision. With regard to the ECHR, the Court noted that it leaves the States wide discretion to determine matters of social and economic policy. Therefore, the Court held that ‘Start Help’ did not constitute indirect discrimination in contravention to article 14 ECHR in conjunction with article 1 Protocol 1 ECHR.

Additional Comments: ‘Start Help’ was abolished in December 2011 and the regular unemployment benefits may now be obtained even if the person in question has not resided in Denmark for a specified period of time.

Link to Full Case: http://www.codices.coe.int/NXT/gateway.dll/CODICES/precis/eng/eur/den/den-2012-3-001

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Decision C-376/10 of the Colombian Constitutional Court

On 01/11/2009 in

Year: 2009 (Date of Decision: 1 November, 2009)

Forum, Country: Constitutional Court; Colombia

Standards, Rights: Core content; Right to education; Children

Summary Background: The plaintiffs filed a constitutional claim challenging the imposition of fees for public primary education.

Holding: The Court ruled that charging tuition for public primary school was a violation of the Constitution and ordered that all such schools in the nation must cease charging students tuition fees [para. VII].

The Court also referenced the Constitutional National Assembly discussions and found that the authors of the Colombian Constitution intended that primary education in the country would be free [para. VI 8.1]. This approach was seen to be in conformity with Colombia’s obligations under international human rights treaties, which constitute a basis for the Constitution.

Additionally, the Court expressed concern that the levy of fees for primary education could pose an obstacle to accessing the education system and realizing the right to education [para. VI 6].

Citing a wide array of international human rights law instruments, the Court concluded that the State has a clear, immediate obligation to guarantee free primary education, while in the case of secondary and higher-level education, the obligation is of a progressive nature [paras. VI.3].

Additional Comments: This case addresses the State duty to respect the human right to education.

Link to Full Case: http://www.corteconstitucional.gov.co/RELATORIA/2010/C-376-10.htm

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Decision T-760 of 2008

On 31/07/2008 in

Year: 2008 (Date of Decision: 31 July, 2008)

Forum, Country: Constitutional Court; Colombia

Standards, Rights: Core content; Right to health;

Summary Background: The judgement came as the culmination of litigation efforts to enforce implementation of the right to health in circumstances that disregarded the constitutional right to health in Colombia.

Holding: In examining Colombia’s international legal obligations, the Court reaffirmed the right to health as constituting a fundamental right [para. II.3.2]. It ordered a dramatic restructuring of the country’s health system to correct structural failures in the Colombian public health sys- tem [para. III.16].

The Court demonstrated its commitment to the minimum core approach by giving very specific content to the right to health, as a right immediately enforceable for certain categories (which it defined in detail) of plaintiffs even though they are unable to afford health care [para. II.3]. For these categories, the Court ordered the provision of a wide range of goods and services, including viral load tests for HIV/AIDS as well as anti-retrovirals, costly cancer medications, and even the financing of treatment of patients abroad when appropriate treatment was unavailable in Colombia, all of which are considerably resource intensive measures. The Court distinguished an essential minimum core of the right to health based on the POS (mandatory health plan)/POSS (subsidized mandatory health plan), which was to be immediately enforceable [para. II.3.2.3.], and other elements that are subject to progressive realization taking into account resource constraints.

The Court’s decision explicitly adopted the right to health framework set out by the CESCR [para. II.3.4]. In keeping with the Committee’s interpretation of the right to health, the Court:

  1. expanded on the multiple dimensions of State obligations that flow from the right to health, and how oversight is essential to protecting the right to health as well as to accountability;
  2. repeated that the State is responsible for adopting deliberate measures to achieve progressive realization of the right to health and that retrogression (backsliding) is generally impermissible; and
  3. declared that the right to health calls for transparency and access to information, as well as for evidence-based planning and coverage decisions based on participatory processes.

Link to Full Case: http://www.alcaldiabogota.gov.co/sisjur/norma s/Norma1.jsp?i=33490

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