Relatórios apresentados no quadro do Conselho
da Europa e Decisões do Comité de Ministros
sobre a Aplicação da Carta Social Europeia
COMPLAINT N° 1/1998,
From the International Commission of Jurists Against Portugal
The European Committee of Social Rights,
committee of independent experts established under Article
25 of the European Social Charter (hereafter referred to as
"the Committee"), during its 160th session attended
Messrs Matti MIKKOLA, President
Rolf BIRK, Vice-President
Stein EVJU, Vice-President
Ms. Suzanne GREVISSE, General Rapporteur
Messrs Konrad GRILLBERGER
Ms Micheline JAMOULLE
Assisted by Mr Régis BRILLAT, Secretary to the Committee
In the presence of Ms. Anna-Juliette POUYAT,
observer of the International Labour Organisation.
Having regard to the complaint registered
as number 1/1998, lodged on 12 October 1998 by the International
Commission of Jurists represented by its Secretary-General,
Mr Adama Dieng requesting that the Committee find that Portugal
fails to apply in a satisfactory manner Article 7 para. 1
of the European Social Charter;
Having regard to the documents appended
to the complaint;
Having regard to the observations communicated
on 6 January 1999 by the Portuguese Government represented
by Ms. Maria Josefina Leitão, Deputy Director-General
of the Ministry of Labour and Solidarity;
Having regard to the observations in
response of the International Commission of Jurists communicated
on 1 February 1999;
Having regard to the European Social
Charter and in particular to Article 7 para. 1 which reads
"With a view to ensuring the effective
exercise of the right of children and young persons to protection,
the Contracting Parties undertake:
to provide that the minimum age of admission
to employment shall be fifteen years, subject to exceptions
for children employed in prescribed light work without harm
to their health, morals or education;
Having regard to the Additional Protocol
to the European Social Charter providing for a system of collective
Having regard to the rules of procedure
adopted by the Committee during its 144th session (17-21 March
After having deliberated on 10 March
Delivers the following decision:
1. The International Commission of Jurists
states that, according to its statute, it is "dedicated
to the support and advancement of those principles of justice
which constitute the basis of the Rule of Law" (Article
4). Its mandate is to "foster understanding of and respect
for the Rule of Law and give aid and encouragement to those
peoples to whom the Rule of Law is denied" (Article 4).
It is also one of the international non-governmental organisations
that participated in the drafting of the United Nations Convention
on the rights of the child and has organised international
seminars on its application, in particular with reference
to the exploitation of child labour.
2. The International Commission of Jurists
alleges that, notwithstanding the statutory provisions adopted
and the measures taken by Portugal to prohibit child labour
and to ensure that this rule is enforced, a large number of
children under the age of 15 years continue to work illegally
in many economic sectors, especially in the north of the country.
It further maintains that the Labour Inspectorate, which is
the principal body for supervising compliance with the legislation
on child labour, is not in a position to perform its functions
effectively. It states that the working conditions imposed
on these children are harmful to their health. It recalls
that states which are bound by Article 7 para. 1 of the Social
Charter are required not just to set the minimum age of admission
to employment at 15 but also to take the necessary measures
to ensure satisfactory application of this rule. Moreover,
it recalls that the prohibition on employing children under
the age of 15 also applies to children working in family businesses.
3. The Portuguese Government declares
that it does not contest the conformity of the complaint with
the admissibility conditions laid down in Articles 1 b), 3
and 4 of the Additional Protocol.
4. However, the Portuguese Government maintains that the complaint
is inadmissible for the following reasons:
- the complaint amounts to a useless
procedural exercise because it pursues the same objective
and, essentially, covers the same reference period as the
negative conclusion adopted by the Committee during supervision
cycle XIII-5 and which lead to Recommendation No. RChS (98)5
adopted on 2 July 1998 by the Committee of Ministers on
the application of the European Social Charter during the
- the complaint may lead to a new recommendation,
contravening the principles of res judicata and non bis
- the Portuguese authorities have taken
measures to implement the Recommendation cited above.
5. In response, the International Commission
of Jurists contests the objections of inadmissibility raised
by the Portuguese Government and requests that the complaint
be declared admissible.
As to the conditions of admissibility laid down by the Protocol
and the rules of procedure of the Committee
6. The Committee notes that, in accordance
with Article 4 of the Protocol, which was ratified by Portugal
on 20 March 1998 and which entered into force on 1 July 1998,
the complaint has been lodged in writing and relates to Article
7 para. 1, a provision accepted by Portugal on 6 August 1991
upon its ratification of the Charter. In addition, the grounds
for the complaint are indicated.
7. The Committee further notes that,
in accordance with Articles 1 b) and 3 of the Protocol, the
International Commission of Jurists is an international non-governmental
organisation with consultative status with the Council of
Europe. It is included on the list, compiled by the Governmental
Committee, of international non-governmental organisations
which are entitled to lodge complaints.
8. Moreover, as laid down by Article
1 of the rules of procedure of the Committee, the complaint
lodged on behalf of the International Commission of Jurists
is signed by its Secretary-General who, according to the statute
of the organisation, is the person empowered to represent
9. The Committee considers that this
organisation has lodged a complaint in a field in which it
has particular competence within the meaning of Article 3
of the Protocol.
As to the objections of inadmissibility
raised by the Portuguese Government
10. The Committee recalls that according
to the wording of the Preamble to the Additional Protocol
of 1995 the collective complaints procedure was established
to improve the effective implementation of the social rights
guaranteed by the Charter and to consolidate the participation
of the social partners and non-governmental organisations.
The object of this procedure, which is
different in nature from the procedure of examining national
reports, is to allow the Committee to make a legal assessment
of the situation of a state in the light of the information
supplied by the complaint and the adversarial procedure to
which it gives rise.
Neither the fact that the Committee has already examined this
situation in the framework of the reporting system, nor the
fact that it will examine it again during subsequent supervision
cycles do not in themselves imply the inadmissibility of a
collective complaint concerning the same provision of the
Charter and the same Contracting Party.
11. Furthermore, in the present case
the Committee observes that Article 7 is only examined every
four years. It is not part of the "hard core" provisions
of the Charter, ie. provisions that, in accordance with the
system of submission of reports decided by the Contracting
Parties, are examined every two years. As the Portuguese Government
has rightly observed, there will be a considerable time-lapse
between the Committee's assessment of Portugal's application
of Article 7 para. 1 in Conclusions XIII-5, published in December
1997, and its subsequent assessment of this provision in Conclusions
XV-2, which will be adopted and published in December 2000.
The present complaint therefore allows the Committee to assess
the situation in Portugal before 2000 in an area as important
as the prohibition of child labour.
12. Moreover, the Committee recalls that
the Recommendation adopted by the Committee of Ministers on
2 July 1998 referred to the situation in Portugal vis-à-vis
Article 7 para. 1 during the reference period 1994-1995, whereas
the complaint refers to texts and circumstances subsequent
to that reference period. This procedure also provides the
Portuguese Government with an opportunity to furnish information
and evidence pertaining to the action it has taken subsequent
to the reference period of its last report.
13. The legal principles res judicata
and non bis in idem relied on by the Portuguese Governement
do not apply to the relation between the two supervisory procedures.
14. The Portuguese Government maintains it has taken measures
in order to implement Recommendation No. RChS(98)5 of the
Committee of Ministers. The Committee considers that this
is not relevant to the admissibility of the complaint and
therefore may not be examined at this stage of the procedure.
5. Consequently, the Committee considers
that the objections of inadmissibility raised by the Portuguese
Government cannot be sustained.
16. For these reasons, the Committee,
on the basis of the report presented by Ms. Suzanne GREVISSE,
and without prejudice to its decision on the merits of the
DECLARES THE COMPLAINT ADMISSIBLE.
In application of Article 7 para. 1 and
2 of the Protocol, requests the Secretary to the Committee
to inform the Contracting Parties to the Charter that the
present complaint is admissible.
Requests the Portuguese Government and the International Commission
of Jurists to submit in writing by 30 April 1999 all relevant
explanations or information.
Requests the Contracting Parties to the
Protocol to communicate to it by the same date any observations
which they wish to submit.
Requests the Secretary to the Committee
to inform the international organisations of employers or
workers mentioned in Article 27 paragraph 2 of the Charter
and to invite them to submit their observations by 30 April
Suzanne GREVISSE Rapporteur
Matti MIKKOLA President of the Committee
Régis BRILLAT Secretary to the Committee