Austerity and social rights. A conflicted relationship. Intervention of G. Stavropoulos, President of GNCHR, at the anniversary event for the 30 years of the Association of Greek Judges and Public Prosecutors for the Democracy and the Liberties

Austerity and social rights. A conflicted relationship. Intervention of G. Stavropoulos, President of GNCHR, at the anniversary event for the 30 years of the Association of Greek Judges and Public Prosecutors for the Democracy and the Liberties.

Social rights were late to be included in the list of human rights. The protection of the defensive nature of individual rights against state attacks was logically preceded, as well as the securing, of course, of the political rights that are necessary for the functioning of democratic system. However, social rights are equally important, as they aim to protect mainly the weakest population groups, such as the people with illness, the unemployed, children, the elderly, PWD, etc., this is not particularly important for people with low incomes. Of course, the more specific content of these rights was not stable, as it was often interrelated with the economic development of the specific country. This constant conflict of the economic with the social nature was their great weakness.

However, the economic measures that are taken each time for the development of a country or to deal with an economic crisis cannot fail to take into account their corresponding effects on human rights. Already in the year 1979, the Secretary General of the U.N. had pointed out the need to study the impact on human rights before adopting specific proposals of an economic nature. The standard of environmental impact studies also had to work in terms of human rights impacts. This was pointed out not only by the UN bodies (among which the Επιτροπή για την εφαρμογή των κοινωνικών, οικονομικών και πολιτικών δικαιωμάτων =Committee on Economic, Social and Cultural Rights?????, the Committee on the Rights of the Child (CRC) and others), but also by the institutions of the European Union, such as the European Commission and the European Ombudsman.

The economic situation is often unforgiving. The preceding international economic crisis, as well as the bad national economic policies, led to the adoption, in some countries, of austerity measures. Especially in our country, uncontrolled borrowing and poor management of public finances brought the economy to the brink of collapse. The country's fiscal needs were fulfilled temporarily with money given on the basis of the Memoranda of Understanding, but the observance of the conditions for their payment brought adverse consequences to the enjoyment of human rights. It’s a typical case the statement of the National Commission for Human Rights dated 15.7.2015, in which it is stated that the imposed austerity measures affected constitutionally guaranteed human rights, such as the principle of equality and, more specifically, the contribution of  Greek citizens to public charges in proportion to their means, the right to equal access to education, the right to property, health, work, social security, freedom of association and the principle of social solidarity, while the principles of proportionality and the protected trust of the citizen in state institutions were not observed. It was underlined that the austerity measures even insulted the value of the human being, the respect and protection of which are a primary obligation of the State and seriously hindered the development of each person's personality and also undermined the social rule of law. The same ascertainments were made by the announcements of the Association of Greek Judges and Public Prosecutors for the Democracy and the Liberties from 15.12.2013 and 24.2.2014, while in the first of them it is clearly emphasized that the under-functioning of the social rule of law provided for by the Constitution has now reached a limit point.

The generally adverse impact of austerity measures on human rights has been underlined by international texts, including those of the European Parliament (Resolutions of 18.4.2013 and 13.3.2014), the Parliamentary Assembly of the Council of Europe (Resolutions 1884/2012 and 2035/2015), the UN Committee on Economic, Social and Cultural rights (2012). The reaction to the austerity measures in Greece was significant, especially from the European Committee of Social Rights, which found that the impact on human rights was not assessed when the austerity measures were adopted. In particular, the European Committee of Social Rights ruled that setting lower wages for young people, which was done without assessing the corresponding impact and without taking measures to support those affected, constituted a downgrading of the standard of living of young people and discrimination against them, which contravened the European Social Charter. It also found that certain reductions in pension benefits did not in themselves constitute a breach of the European Social Charter, but that the cumulative effect of those reductions resulted in a significant deterioration in the standard of living of many pensioners. It was also stressed that, by failing to examine and analyse the impact of such important measures, the Government had failed to ascertain whether other measures could have been taken which would, in any event, limit the harmful consequences (decisions on applications lodged in 2011 and 2012).

The austerity measures imposed on Greece as preconditions for its borrowing under fiscal consolidation programs were taken on the basis of particularly serious grounds of public, general, social or budgetary interest and to ensure the viability of social security institutions. The Council of State, in its first judgment 668/2012 as well as in other subsequent judgments, confined itself to a marginal review of the constitutionality of the austerity measures imposed in implementation of the First Memorandum, and held that those measures were not, in principle, inexpedient.  It noted, however, that the legislature’s interference with the property (in the broad sense) of the persons affected must not be disproportionate to the public interest objective pursued. It accepted that, in principle, the variation of the amount of the salary or pension benefits according to the prevailing circumstances cannot be ruled out, but noted that the reductions imposed cannot jeopardise the dignity of the persons concerned. While the duty of social solidarity is strong in cases of particularly serious budgetary problems or in order to ensure the sustainability of social security institutions, the measures taken must also respect the principles of equality and proportionality. The austerity measures implemented by the First Memorandum were rather limited in scope and the aforementioned judgment found them to be compatible with the Constitution. However, other pension reductions followed, approximately two years later, which, after Law no. 4093/2012, were no longer considered constitutionally acceptable by the Council of State. In its judgment no. 2287/2015, the Supreme Administrative Court stressed that the State, as guarantor, must ensure the adequacy of benefits and the viability of the Insurance Funds, which are public law entities, and bears the main responsibility for covering their deficits. Pension benefits must be capable of ensuring a satisfactory standard of living, as close as possible to that which the insured persons had achieved during their working life. While it is true that in cases of extremely difficult budgetary circumstances a reduction in the pensions awarded cannot be ruled out in the future, such reduction cannot be unrestricted. The core of the pension right must not be violated and the pensioners' dignified living standards must not be affected. To that end, the State must carry out a prior assessment of the impact of pension reductions on sustenance, clothing, housing, hygiene, health care and participation in social life, taking into account previous pension reductions as well as the employment situation in the economy and the tax burdens of pensioners. Due regard should also be paid, according to the foregoing judgment, to the cost of goods and to pensioners' loan obligations. However, the new pension reductions referred to above were not preceded by such an impact assessment, using the above criteria, and the pension reductions were imposed at a later stage than the original ones, when there was no longer any threat of an immediate collapse of the economy. Only in the latter case, such a study would not have been necessary and a justification by the legislator would suffice. It was also held in the above-mentioned judgment of the Council of State that those newer reductions upset the fair balance between the general interest and the property rights of pensioners, as guaranteed by Article 1 of the First Additional Protocol to the ECHR.

Similar to the above was the attitude of the courts of Portugal, Latvia, Estonia, but also Spain and basically, the Federal Constitutional Court in Germany itself.

The reflection born from the recent Greek experience, revolves around the question of whether or not austerity and social rights can co-exist. Does the valid element conflict with the financial element? The answer seems affirmative, in practice, as the economic element is absolutely dominant, and the international Memoranda of Understanding nowhere seem to provide for the investigation of the effects of any fiscal adjustment on human rights and especially on social rights, contrary to clear instructions of international legal order. Particularly disappointing has been, in practice, the attitude of certain institutions of the European Union, which, ignoring binding clauses stemming from the Charter of Fundamental Rights of the Union itself, but also from other texts of both primary and secondary European law, ignored the need support for the incomes of the weakest, despite its frequent mention by many official texts of the principle of solidarity within the framework of the European Union.

Austerity in Greece lasted a long time and had a particularly painful cumulative effect on the larger population. Let us hope that the many mistakes made, from almost all sides, Greek and foreign, will not be repeated in the future.

Giorgos Stavropoulos

President of Greek National Commission for Human Rights