By Gaëtan Cliquennois
This post was originally published in EJIL: Talk, as part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.
Many countries have been hit by deepening economic depression induced by the economic crisis of 2008. While there is no doubt that the crisis had its origins in unregulated financial speculation, by bailing out and recapitalising the broken banking system (see Bieling 2014), national governments were blamed for the financial slump and were asked by some international institutions, to adopt a policy of austerity (see Blyth 2013). This policy involved draconian cuts in government budgets and spending, the privatisation of public-sector organisations and administrations, and reduction of wages and prices to rescue financial and banking institutions that were deemed “too big to fail”. The main effects of these austerity policies have been described, studied and analysed in terms of the decline of welfare states, breaches of social rights, unemployment, and rising social inequalities between the rich and the poor (see Contiades and Fotiadou 2012; Kilpatrick and De Witte 2014; Vettori 2011).
The negative effects of austerity on fundamental rights protection have been monitored and denounced by several European institutions, including those responsible for protecting fundamental rights (see here and here). However, scant academic attention has been paid to the way international and regional courts are dealing with some of the policies within the economic crisis as human rights violations (see Salomon 2015). The austerity cases that have been brought before the European Court of Human Rights and the UN Committee on Economic, Social and Cultural Rights have faced the hurdles of admissibility and scope.
The European monitoring of the consequences of the economic crisis
Regarding the European Court of Human Rights [ECtHR], in a number of cases the Court has rejected applications (as it found them inadmissible as manifestly ill-founded) relating to austerity, notably in the field of wages and pensions. Here, the Court relied on the principles of proportionality and subsidiarity, and the limited and temporary nature of austerity measures (see Khoniakina v Georgia, Bakradze v Georgia, Frimu and Other v. Romania, Da Conceição Mateus v. Portugal, Santos Januário v. Portugal and Da Silva Carvahlo Rico v Portugal).
Equally, we could also point out a new sensitivity of the judges of the Court to economic and social rights affected by the economic crisis, austerity policies and public spending cuts. While the European Convention in itself does not enshrine them, with the exception of Article 4 § 2 (prohibition on forced labour), Article 6 § 3 c (the right to free legal assistance), Article 11 (the right of association and the right to strike) and Article 2 of Protocol 1 to the Convention (the right to education), this sensitiveness has led the Strasbourg Court to take economic and social rights into account. This new trend was facilitated by the wide interpretation given to the Convention as a living and flexible instrument, which must be interpreted in light of present day conditions. It was also spurred on by European judges’ perception of their own roles within society; impacts of austerity measures on human rights are very significant and cannot be ignored by the Court. We can also point to growing connections between international and European human rights agencies (which have recently focused on the adverse effects of austerity) and the European Court as further explaining this trend. A critical approach to austerity policies was supported by the European Agency for Fundamental Rights [EAFR] and the CoE Commissioner for Human Rights. Through reports, conferences and interactions with judges, these offices are a source of influence and awareness about the social and economic consequences of austerity on the population and in particular, on vulnerable and poor people.
In 2013, a seminar dedicated to the implementation of the ECHR in times of economic crisis was organized by the Court on behalf of prominent European judges and closed to European human rights agencies (such as former president Spielmann, former vice president Tulkens who became member of the European Agency for Fundamental Rights). Increasing attention in this area might also be explained by the Court’s awareness of the threat austerity policy poses to its own budget and development through the adoption of zero growth by the Council of Europe (see Lambert 2016).
This new awareness of the negative impacts of austerity measures has been reflected in the ECtHR’s jurisprudence relating to access to justice. Although the Strasbourg Court does not require that access to justice be completely free of charge, the Court has recognised that state fees cannot be so high as to unreasonably obstruct people from bringing a case to court, especially in times of economic crisis (Mehmet and Suna Yiğit v. Turkey). According to the Court, the size of a state fee should not be an obstacle to initiating proceedings, and excessive court fees (e.g. the equivalent of the average annual salary or four times the minimum monthly wage) are manifestly in violation of the Convention. In addition, decisions delivered by courts must be executed within a reasonable timeframe. In this regard, the European Court has rendered pilot judgments requiring Greece to remedy the problem of delays by the courts in hearing administrative (Vassilious Athanasiou v Greece), criminal (Michelioudakis v Greece), and civil (Glykantzi v Greece) cases caused by public cuts.
The position of the Strasbourg Court echoes the opinion expressed by the Commissioner for Human Rights of the CoE and the EAFR which have both pointed out the problems faced across Europe in the area of judicial protection in the context of economic downturn: high state fees, inaccessible legal assistance, inadequate alternative dispute resolution mechanisms, inconsistent judicial awards, drastic cuts to the budgets of the judiciary, and a low level of awareness among the population of rights and rights protection (see Report of European Union Agency for Fundamental Rights, 2010). In this regard, the European Court is aware of two important conclusions drawn at the annual conference of the European Union Agency for Fundamental Rights in December 2012which addressed the issue of access to justice in times of austerity. Despite the economic crisis or because of it, access to justice and the right to an effective legal remedy must be increased, however not so much quantitatively as qualitatively. It is also crucial to ensure that all people, especially vulnerable groups, are aware of their rights.
The UN Committee on Economic, Social and Cultural Rights
Due to its clear mandate on economic and social rights under the International Covenant on Economic, Social and Cultural Rights, the UN Committee on Economic, Social and Cultural Rights (CESCR) is expected to be more responsive to austerity than the ICJ and the ECtHR. The Committee has indeed recently tackled several times the effects of austerity policies conducted by national states targeted by the troika through its concluding observations (such as those of Greece, Ireland, Portugal, Spain). In the same way as the ECtHR, the Committee has notably considered that austerity policies can be applied only where they are temporary, necessary, not discriminatory and do not disproportionately affect the rights of disadvantaged and marginalized individuals and groups.
Concerning countries that are not monitored by the troika, the CESCR stated for the first time in 2016, that austerity measures and social security reform adopted by the UK constitute a breach of its international human rights obligations (to respect, protect and fulfil economic, social and cultural rights progressively, to the maximum of its available resources). In particular, the Committee denounced the disproportionate adverse impacts of austerity policies on inequalities, poverty, unemployment, homelessness, discrimination and restriction of access to social welfare, education and housing benefits, foodbanks, healthcare, childcare and justice especially for disadvantaged and marginalised individuals and groups.
The I.D.G. v. Spain case, the first ever communication under the Optional Protocol of the CESCR, concerns the effects of austerity policies and goes beyond the ECtHR jurisprudence. The case, which is connected to the CESCR concluding observations on Spain (see above) and the case law of the European Court of Justice, concerned the threat of austerity policies on the right to housing impacting large numbers of people in Spain who lost their homes after defaulting on mortgage payments. For the first time, a national State was obliged by the CESCR to provide effective remedies in foreclosure procedures concerning default on mortgage payments (in order to protect the right to housing) and to ensure that all appropriate legislative or administrative measures are adopted to guarantee personal notification in foreclosure procedures. Spain must also pass legislation to ensure that the mortgage enforcement procedure and the procedural rules contain appropriate requirements and procedures to be followed before going ahead with an eviction. This case follows and enforces the 2012 concluding observations of the CESCR in respect of Spain’s lack of legal safeguards in the case of forced evictions. The case relied also on the ruling, Mohamed Aziz v. Catalunyacaixa delivered on 14 March 2013 by the ECJ, which held that Spanish law provided insufficient and incomplete protection to borrowers, especially when the mortgaged property was the family home. In this regard, Spain has not complied with the recommendation made by the CESCR to adopt a legal framework that establishes appropriate requirements and procedures to be followed prior to an eviction and takes into account the Committee’s general comment No. 7 on the right to adequate housing (art. 11, para. 1, of the Covenant): forced evictions, the recommendations of the Special Rapporteur on adequate housing, and the United Nations basic principles and guidelines on development-based evictions and displacement.
In conclusion, austerity measures and their impact on human rights are likely to appear before the ECtHR and the CESCR. The ECtHR has a mixed record, and up until now, the only venue which has been openly responsive to austerity policies is a soft law committee with restricted access for individual petition. In addition, austerity policies decided by the troika have not yet been challenged. In saying that, this could be subject to change considering increasing evidence of judicial sensitiveness to the social and economic effects of austerity measures, and growing connections between human rights institutions and courts.