A Conscientious Objector's Guide to the International Human Rights System

European Committee of Social Rights: State reporting procedure

Summary

The European Committee of Social Rights (ECSR) is a treaty-based mechanism where a group of 15 human rights experts examines annual reports of States Parties to the European Social Charter. The European Social Charter is a Council of Europe treaty (adopted in 1961 and revised in 1996) which guarantees rights such as non-discrimination. The European Social Charter does not protect the right to conscientious objection, and is therefore irrelevant to the question of recognition of the right to conscientious objection to military service. However, it can be relevant in cases of a punitive substitute civilian service in countries where conscientious objection is recognised.
The Committee determines whether or not national law and practice in the States Parties are in conformity with the Charter and renders so-called conclusions for national reports.

1. Likely result from the use of mechanism

The European Committee of Social Rights evaluates the report of States Parties to the European Social Charter of 1961, the 1998 Additional Protocol to the European Social Charter, or the revised European Social Charter from 1995. Following a decision by the Council of Europe's Committee of Ministers in 2006, under the current reporting system the provisions of both the 1961 European Social Charter and the 1996 Revised European Social Charter have been divided into four thematic groups: “Employment, training and equal opportunities” (which includes article 1 para 2, mostly relevant for substitute service of conscientious objectors), “Health, social security and social protection”, “Labour rights”, “Children, families, migrants”. States present a report on the provisions relating to one of the four thematic groups on an annual basis. Consequently each provision of the Charter is reported on once very four years. A calendar of reporting cycles is available at http://www.coe.int/t/dghl/monitoring/socialcharter/ReportCalendar/Calend....

The European Committee of Social Rights evaluates a State's report in light of the relevant provisions of the European Social Charter, and publishes its evaluations and conclusions in a report, which is made available at the end of the reporting cycle on the website of the European Committee of Social Rights (see http://www.coe.int/t/dghl/monitoring/socialcharter/Conclusions/Conclusio...).

2. To which States does this mechanism apply

The mechanism applies to States that have ratified one of the relevant revisions of the European Social Charter, plus possibly additional protocols:

3. Who can submit information?

International NGOs with participatory status of the Council of Europe and national trade unions can submit information to the European Committee of Social Rights.
The procedure for obtaining participatory status is set out in Council of Europe Committee of Ministers resolution Res(2003)8 (see http://www.coe.int/t/ngo/Articles/Resolution_2003_8_en.asp).
In addition, States Parties are requested to forward a copy of their report to national organisations that are members of the international organisations of employers and trade unions invited, under Article 27, paragraph 2, to be represented at meetings of the Governmental Committee.

4. When to submit information?

It is advisable to submit information after submission of a State's report.

5. Special rules of procedure or advice for making a submission?

Since 2006, reporting has been split into four thematic areas. It is important that a submission refers to the report of the State in question, and is limited to the provisions of the European Social Charter which are being addressed in the relevant reporting cycle.
States are required to submit their reports by 31 October of each year, and the European Committee for Social Rights is supposed to publish its conclusions by the end of the following year.

The reporting calendar is available at http://www.coe.int/t/dghl/monitoring/socialcharter/ReportCalendar/Calend....

6. What happens to a submission (how long will it take)?

The European Committee of Social Rights will designate a Rapporteur following the submission of a State's report, whose task it is to prepare for the examination of a State's report.
As part of the reporting procedure, the Committee of Social Rights or a sub-committee set up to do so might organise a meeting with representatives of the State concerned, to which international organisations and international trade unions may be invited, as well as – if the State concerned agrees – representatives of national trade unions of the State concerned. The Executive Secretary will then draft provisional conclusions.
Following the session, the European Committee of Social Rights will adopt its conclusions at the end of each supervision cycle.

If a state takes no action on a Committee decision to the effect that it does not comply with the Charter, the Council of Europe's Committee of Ministers addresses a recommendation to that state, asking it to change the situation in law and/or in practice.

7. History of the use of this mechanism

The authors are not aware that conscientious objector organisations or human rights NGOs have raised the issue of a punitive substitute service within the state reporting procedure of the European Committee of Social Rights. Nevertheless, the ECSR has addressed the issue in several reports, based on article 1 para 2 of the European Social Charter – The right to work, or more specifically the commitment “to protect effectively the right of the worker to earn his living in an occupation freely entered upon”. The ECSR sees a punitive length of substitute service as a “disproportionate restriction on 'the right of the worker to earn his living in an occupation freely entered upon'”, and therefore as a violation of article 1 para 2 of the European Social Charter.

Contact Details: 
Secretariat of the European Social Charter Council of Europe Directorate general of Human Rights and Legal Affairs Directorate of Monitoring F-67075 Strasbourg Cedex Tel. +33-3-88 41 32 58 Fax. +33-3-88 41 37 00
Conclusions
Title Date
European Committee of Social Rights: Conclusions 2008 (Cyprus) 01/12/2008

“Service required to replace military service
In its last two conclusions (Conclusions XVI-1 and Conclusions 2004), the Committee maintained that that the duration of the service that replaced compulsory military service, generally twice the length of the military service itself, was excessive. The report contains no information on this point. The Committee therefore considers that the situation is unchanged and is still not in conformity with the Revised Charter.
Admittedly, recognised conscientious objectors are in a better position than they are in countries that do not grant them special status or where refusal to serve is punishable by imprisonment. But even if states acknowledge the principle of conscientious objection and institute alternative service instead, they cannot make the latter longer than is necessary to ensure that refusal to serve on grounds of conscience is genuine and the choice of alternative service is not seen as advantageous rather than a duty.”

Length/terms of service Recognised
European Committee of Social Rights: Conclusions 2008 (Estonia) 01/12/2008

“Service required to replace military service
The Committee notes from the report that there have been no changes in the situation it previously considered unsatisfactory, and that the Government has no intention of changing it. Military service lasts 8 months. However it is extended to 11 months for non-commissioned officers, specialists and those undertaking reserve officer training. Alternative military service lasts 16 months.
Admittedly, recognised conscientious objectors are in a better position than they are in countries that do not grant them special status or where refusal to serve is punishable by imprisonment. But even if the state acknowledges the principle of conscientious objection and institutes alternative service instead, it cannot make the latter longer than is necessary to ensure that refusal to serve on grounds of conscience is genuine and the choice of alternative service is not seen as advantageous rather than a duty.
Under Article 1§2 of the Charter, alternative service may not exceed one and a half times the length of armed military service. Since alternative service may last up to twice the length of military service, the situation in Estonia is not compatible with the Revised Charter.”

Length/terms of service Recognised
European Committee of Social Rights: Conclusions 2008 (Finland) 01/12/2008

“Service required to replace military service
Under the Military Service Act the length of military service is 180, 270 or 362 days. The duration of unarmed military ser­vice is 330 days and of alternative civilian service 395 days.
In its previous conclusion (Conclusions XVII-1), the Com­mittee found that the situation was not compatible with the Revised Charter on the grounds that the length of alterna­tive service was more than double the length of compulsory service performed by the majority of conscripts, since at that time 64.2% of conscripts performed 180 days of military service. In its previous conclusion (Conclusions 2006), it noted that the majority of conscripts (52.3%) served at least 270 days and 47.7% served 180 days. The Committee found that the situation had altered, but only slightly, and that the length of civilian service remained more than double the minimum period of military service undertaken by almost half of all conscripts.
It now notes from the report that there have been no changes in the situation it previously considered not to be in conformity. It therefore finds that the length of alternative civilian service remains a disproportionate restriction on workers' right to earn a living in an occupation freely ente­red upon. Admittedly, recognised conscientious objectors are in a better position than they would be in countries that do not grant them special status and where refusal to serve is punishable by imprisonment. But even if the state ack­now­ledges the principle of conscientious objection and in­sti­tutes a replacement service, it cannot make the replace­ment service longer than is necessary to ensure that refusal to serve on grounds of conscience is genuine, in order to avoid the replacement service being chosen as the most advantageous solution rather than felt as a constraint.”

Length/terms of service Recognised
European Committee of Social Rights: Conclusions 2008 (Georgia) 01/12/2008

”Length of service required to replace military service
The Committee would emphasise that the length of service carried out to replace military service (alternative service), during which those concerned are denied the right to earn their living in an occupation freely entered upon, must be reasonable (Quaker Council for European Affairs (QCEA) v. Greece, complaint No. 8/2000, decision on the merits of 25 April 2001, §§23-25). The Committee assesses whether the length of alternative service is reasonable by comparing it with the length of military service. For example, where the length of alternative service is over one-and-a-half times that of military service, it considers the situation to be incompatible with Article 1§2 (Conclusions 2006, Estonia).
Admittedly, recognised conscientious objectors are in a better position than they are in countries that do not grant them special status or where refusal to serve is punishable by imprisonment. But even if the state acknowledges the principle of conscientious objection and institutes alterna­tive service instead, it cannot make the latter longer than is necessary to ensure that refusal to serve on grounds of con­science is genuine and the choice of alternative service is not seen as advantageous rather than a duty. The Committee notes that in Georgia compulsory military service lasts 18 months and alternative service is the same length for citi­zens with a higher education and 24 months for all others.”

Length/terms of service Recognised
European Committee of Social Rights: Conclusions 2008 (Greece) 01/12/2008

“Service required to replace military service
The situation concerning alternative military service has changed significantly since the decision on the merits of 25 April 2001 in collective complaint No. 8/2000 - Quaker Council of European Affairs v. Greece – which found that the situation in Greece was incompatible with Article 1§2 because of the excessive length of alternative service.
Armed military service lasts twelve months. Certain con­scripts may only serve nine months, others six and some three. There are two forms of replacement for armed mili­tary service: unarmed military service and alternative service. The two types of service differ in length. The rele­vant legislation is Acts 3257/29-7-2004 and 3421/13-12-2005, which stipulate that those performing unarmed military service must serve at least one and a half times, and those performing alternative service at least double, the length of armed military service.
The ministry of defence has adopted ministerial decree F 420/10/80347/S45/10-3-2006 to implement this legislation.
The periods of unarmed military service to replace armed military service are:
- 18 months for those who would have had to serve a full armed military service of 12 months;
- 13 months and 15 days for those who would have had to serve a reduced armed military service of 9 months;
- 9 months for those who would have had to serve a reduced armed military service of 6 months;
- 4 months and 15 days for those who would have had to serve a reduced armed military service of 3 months.
The Committee considers that these periods of unarmed military service to replace armed military service are compatible with Article 1§2 of the Charter.
The periods of alternative service to replace armed military service are:
- 23 months for those who would have had to serve a full armed military service of 12 months;
- 17 months for those who would have had to serve a reduced armed military service of 9 months;
- 11 months for those who would have had to serve a reduced armed military service of 6 months;
- 5 months for those who would have had to serve a reduced armed military service of 3 months.
The Committee notes that these periods are nearly double the length of armed military service. Admittedly, recognised conscientious objectors are in a better position than they are in countries that do not grant them special status or where refusal to serve is punishable by imprisonment. But even if the state acknowledges the principle of conscientious objection and institutes alternative service instead, it cannot make the latter longer than is necessary to ensure that refusal to serve on grounds of conscience is genuine and the choice of alternative service is not seen as advantageous rather than a duty. Under Article 1§2 of the Charter, alternative service may not exceed one and a half times the length of armed military service. The Committee therefore considers that, even though the situation in Greece has improved significantly, it is still not compatible with Article 1§2 of the Charter.”

Length/terms of service Recognised
European Committee of Social Rights: Conclusions 2008 (Moldova) 01/12/2008

“Service required to replace military service
In its previous conclusions, the Committee noted that alternative service lasted 24 months, while military service lasted twelve. This prompted the Committee to conclude that the situation was not in conformity with Article 1§2 of the Revised Charter because the length of alternative service excessively restricted the worker’s right to earn a living in an occupation freely entered upon.
Although it did not fall within the reference period, the Committee takes due note of the adoption of Act No. 156-XVI of 6 July 2007 on the organisation of (alternative) civil service, which reduces the length of service to twelve months. The Committee considers that, this reform will enable Moldova to be in conformity with Article 1§2 of the Revised Charter on this point. However, the situation was not in conformity with the Revised Charter during the reference period. It asks, however, for the next report to indicate when the law has come into force.”

Length/terms of service Recognised
European Committee of Social Rights: Conclusions 2008 (Romania) 01/12/2008

“Service required to replace military service
In its previous conclusions, the Committee found that the situation was not in conformity because alternative service lasted 24 months instead of 12 and this was excessive. It took the view that the additional 12 months during which the persons concerned were deprived of the right to earn a living through freely undertaken work went beyond reasonable limits in relation to the length of military service. The Committee notes that, under Act No. 446/2006, which came into force on 1 January 2007, the length of alternative service is now to be set by a Government decision. According to the report, it is planned to set this at twelve months.
Admittedly, recognised conscientious objectors are in a better position than they are in countries that do not grant them special status or where refusal to serve is punishable by imprisonment. But even if the state acknowledges the principle of conscientious objection and institutes a replacement service, it cannot make the replacement service longer than is necessary to ensure that refusal to serve on grounds of conscience is genuine, in order to avoid the replacement service being chosen as the most advantageous solution rather than felt as a constraint.
The Committee considers that, this reform will enable Romania to be in conformity with Article 1§2 of the Revised Charter on this point. However, the situation was not in conformity with the Revised Charter during the reference period. It asks, however, for the next report to indicate when the law has come into force.”

Length/terms of service Recognised
European Committee of Social Rights: Conclusions 2006 (Estonia) 14/03/2007

“Service in place of military service
The Committee previously noted that legislation provided for alternative service to compulsory military service, but sought further clarification on the length of such alternative service. In December 2004 the length of alternative service was reduced to between 12 months (minimum) and 18 months (maximum) and is (according to other sources1) currently set at 16 months duration. Military service lasts between eight months (minimum) and 11 months (maximum).
The Committee recalls that under Article 1§2 the duration of alternative service may not exceed one and half times the length of military service. The Committee notes that according to the information available to it alternative service may amount to double the length of military service. The situation is therefore not in conformity with the Revised Charter on this point.
The Committee refers to its question in the General Introduction to these Conclusions as to whether legislation against terrorism precludes persons from taking up certain employment.”

Length/terms of service Recognised
European Committee of Social Rights: Conclusions 2006 (Finland) 14/03/2007

“Service in place of military service
Under the Military Service Act the length of military service is either 180, 270 or 362 days. According to the report the majority of conscripts perform at least 270 days (52.3 %) and 47.7 % perform 180 days. The duration of unarmed military service is 330 days and alternative civilian service 395 days.
The Committee has previously found that the situation is not in conformity with the Revised Charter on the grounds that the length of alternative service was more than double the length of compulsory service performed by the majority of conscripts (at that time 64,2 % of conscripts performed 180 days of military service. Although the situation has altered slightly during the reference period, (see above), the Committee notes that it has only altered slightly and that the length of civilian service remains more that double the minimum period of military service which is under taken by almost half of all conscripts.
Therefore the Committee maintains that the length of alternative civilian service remains a disproportionate restriction on a worker’s right to earn a living in an occupation freely entered upon.
The Committee invites the Government to reply to its in the General Introduction to these Conclusions as to whether legislation against terrorism precludes persons from taking up certain employment.”

Length/terms of service Recognised
European Committee of Social Rights: Conclusions 2006 (Greece) 14/03/2007

“Service in place of military service
Since the case of Quaker Council of European Affairs v. Greece Complaint No. 8/2000 decision on the merits 25 April 2001 Greece has been found to be in breach of Article 1§2 on the grounds that the length of service alternative to military service is excessive. The legal regulations governing alternative military service have been amended over the years, although in its previous conclusion the Committee noted that the length of alternative service was still excessive in that it usually represented more than double the length of compulsory military service.
New legislation on this issue has again been introduced during the reference period; those who serve alternative civilian service instead of the average military service (or unarmed military service) are now liable to serve 23 months, instead of 30 months as was set previously (those who serve reduced armed service of nine months are now liable for 17 months instead of 25; those who serve reduced armed service of six months are now liable for 11 months instead of 20 and those who serve reduced armed service of five months are now liable for 3 months instead of 15). The length of full-armed military service is set at twelve months.
The Committee notes that the new legislation provide for a significant reduction in the length of alternative service; however it recalls that under Article 1§2 the duration of alternative service may not exceed one and half times the length of military service and consequently the situation in Greece can not be considered as being in conformity with Article 1§2 of the Charter.”

Length/terms of service Recognised

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