COE_ESC

European Committee of Social Rights

Comité européen des Droits sociaux

October 2015

                                                                                               

FIRST REPORT

ON THE NON-ACCEPTED PROVISIONS

OF THE EUROPEAN SOCIAL CHARTER

THE RUSSIAN FEDERATION


TABLE OF CONTENTS

                                                       

I.      SUMMARY. 3

II.      EXAMINATION OF THE NON-ACCEPTED PROVISIONS.. 6

Appendix I The Russian Federation and the European Social Charter 22

Appendix II   Declaration of the Committee of Ministers on the 50th anniversary of the European Social Charter 25

           

           

           


      I.        SUMMARY

With respect to the procedure provided by Article 22 of the 1961 Charter – examination of non-accepted provisions - the Committee of Ministers decided in December 2002 that "states having ratified the Revised European Social Charter should report on the non-accepted provisions every five years after the date of ratification" and had "invited the European Committee of Social Rights to arrange the practical presentation and examination of reports with the states concerned" (Decision of the Committee of Ministers of 11 December 2002).

Following this decision, it was agreed that the European Committee of Social Rights examines - in a meeting or by written procedure - the actual legal situation and the situation in practice in the countries concerned from the point of view of the degree of conformity of the situation with non-accepted provisions. This review would be done for the first time five years after the ratification of the Revised European Social Charter, and every five years thereafter, to assess the situation on an ongoing basis and to encourage States to accept new provisions. Indeed, experience has shown that States tend to overlook that the selective acceptance of the provisions of the Charter should be only a temporary phenomenon.

On 10 April 2015, the State Duma Committee on Labour, Social Policy and Veterans’ Affairs organised an exchange of views on provisions of the European Social Charter not accepted by the Russian Federation.

The Council of Europe delegation was composed of :

-      Prof.Matti Mikkola, former President of the European Committee of Social Rights, Helsinki University;

-      Prof. Elena Machulskaya, member of the European Committee of Social Rights, Professor at the Department of Labour Law of the M. V. Lomonosov Moscow State University;

-      Régis Brillat, Head of the Department of the Euroepan Social Charter, Executive Secretary of the European Committee of Social Rights ;

-      and Petr Sich, Head of the Council of Europe project Office in Moscow.

In addition to the three first members of the Council of Europe’s delegation, the following persons also took the floor during the Hearing :

1. Olga Batalina, Chair of the Duma Committee on Labour, Social Policy and Veterans’ Affairs

2.Sergey Velmyaykine, First Deputy Minister of Labour and Social Protection of the Russian Federation

3. Marina Kargalova, Director General of the Council of Social Studies of the European Institute of the Russian Academy of Sciences (“RAN”)

4. Elena Gerasimova, member of the Civil Council to the Ministry of Labour of the Russian Federation, Director of the autonomous non-profit organisation (ANO) “Centre for Social and Labour Rights”, Associate Professor (Docent) at the Social Law Department of the High School of Economics.

5. Vladimir Kartenko, Auditor at the Accounts Chamber of the Russian Federation

6. Nikita Liutov, Head of Department of Labour Law and Social Protection Law of the O.E. Kutafin Moscow State Law University

7. Konstantin Krylov, President of the Moscow Society of Labour Law and Social Protection Law, PhD

8. Galina Skachkova, Head of the Labour Law Section of the Institute of State and Law of the Russian Federation Academy of Sciences

Later on, the Duma Committee adopted a Recommendation to the Government which supports the acceptance of additional provisions.

Following the hearing, on 23 July, the Russian Federation authorities provided the Committee with technical information on the situation in law and in practice as regards the non-accepted provisions. The document’s title is “ Comparative analysis of the unratified European Social Charter Articles for their conformity with the current Russian Federation legislation. Development of proposals on the possibility of joining the Russian Federation to the unratified Social Charter Articles.”

The European Committee of Social Rights proceeded to the examination of the situation on the basis of the information provided by the government during the meeting and in writing and herewith delivers its assessment of the situation in relation to the provisions of the Charter not accepted by the Russian Federation:

The Committee is of the opinion that there are no legal obstacles for acceptance by the Russian Federation of the following provisions:

Article 2§2 :     Right to just conditions of work - Public holidays with pay

Article 12§3:    Right to social security - Development of the social security system

Article 13§2:                Right to social and medical assistance - Non-discrimination in the exercise of        social and political rights

Article 13§3:    Right to social and medical assistance - Prevention, abolition or alleviation of                     need

Article 15§3 :   Right of persons with disabilities to independence, social integration and                            participation in the life of the community - Integration and participation of                             persons with disabilities in the life of the community

Article 19§1:    Right of migrant workers and their families to protection and assistance -                           Assistance and information on migration

Article 19§3 :   Right of migrant workers and their families to protection and assistance - Co-                    peration between social services of emigration and immigration states

Article 19§4:    Right of migrant workers and their families to protection and assistance

                        a) remuneration and other employment and working conditions;

                        b) membership of trade unions and enjoyment of the benefits of collective              bargaining

Article 19§10: Right of migrant workers and their families to protection and assistance -                            Equal treatment for the self-employed

Article 23 :       Right of the elderly to social protection

Article 31:        Right to housing

The Russian Federation does not seem to comply with the other non-accepted provisions or the information therein does not allow the Committee to express any opinion. The Committee therefore invites the Russian authorities to continue with the work on these provisions with a view to their acceptance in the future.

In view of the conclusions of this report, the Committee wishes to encourage the Russian Federation to consider accepting additional provisions of the Charter as soon as possible so as to consolidate the paramount role of the Charter in guaranteeing and promoting social rights.

The European Committee of Social Rights remains at the disposal of the authorities of the Russian Federation and encourages them to take the necessary steps towards acceptance of the collective complaints procedure.

The next examination of the provisions not accepted by the Russian Federation will take place in 2019.

 

The Committee uses the opportunity of this Report to draw the attention of States Parties to the Declaration of the Committee of Ministers on the 50th anniversary of the European Social Charter (Appendix 3).

    II.        EXAMINATION OF THE NON-ACCEPTED PROVISIONS

The description of the situation in the Russian Federation set out for the different provisions below is based on the written information provided by the Russian authorities. (“Comparative analysis of the unratified European Social Charter Articles for their conformity with the current Russian Federation legislation. Development of proposals on the possibility of joining the Russian Federation to the unratified European Social Charter Articles”).

Article 2          The right to just conditions of work

Article 2§2      With a view to ensuring the effective exercise of the right to just conditions of work, the Parties undertake to provide for public holidays with pay

Situation in the Russian Federation

Russian legislation setting the rules about public holidays conforms to requirements of the European Social Charter (revised) dated 3 may 1996), hence ratification of this paragraph is possible. 

Opinion of the Committee

The Committee considers that acceptance of this provisions is possible.

Article 4          The right to fair remuneration

Article 4§1      With a view to ensuring the effective exercise of the right to a fair remuneration, the Parties undertake to recognise the right of workers to remuneration such as will give them and their families a decent standard of living

Situation in the Russian Federation

Ratification cannot be considered until the level of the minimum wage in Russia is enlarged to the amount of at least 60% of the average wage in the country.

Opinion of the Committee

The Committee considers that acceptance cannot be considered until the level of the minimum wage (MROT) can be increased so as to meet the 60% threshold.

Article 12        The right to social security

Article 12§2    With a view to ensuring the effective exercise of the right to social security, the Parties undertake to maintain the social security system at a satisfactory level at least equal to that necessary for the ratification of the European Code of Social Security

Situation in the Russian Federation

In case of ILO Convention No. 102 and ECSS (European Code of Social Security) ratification by the Russian Federation when examining the Russian Federation Reports, the Committee of ILO conventions and  recommendations application experts will likely take into account the decisions already adopted by the European Committee of social rights.

Minimum amounts of allowances for temporary disability, pregnancy and childbirth depend on the minimum wage, which in 2014 was significantly lower than the minimum subsistence level for able-bodied population. 

As a result of negotiations between the national associations of workers and employers, it is planned to raise the minimum wage in Russia up to the subsistence minimum by 2018. This would lead to the increase of the amount of allowances for unemployment, temporary disability, pregnancy and childbirth.

As for insurance coverage due to an industrial accident or occupational disease, the decision about conformity of its level to ILO Convention No. 102 and ECSS will depend on who will be recognized as a "typical recipient".

Furthermore, the Appendix to Section XI of ILO Convention No. 102 and ECSS is not about one-time payments, but about periodic ones.  Under Russian law, these include: 

- the allowance for temporary disability;

- insurance benefit to the insured person who became disabled as a result of an industrial accident or occupational disease;

- insurance or social disability pension;

- insurance benefit to disabled dependents of wage earner due to his death as a result of an industrial accident or occupational disease;

- insurance or social survivor pension. 

Insurance benefits are payable regardless of receiving pensions of any kind.  If you the assigned pension is added up to a monthly insurance payment, the total amount of payments will exceed the required by ILO Convention No. 102 and ECSS minimum – 50% of "typical recipient’s" earnings.

So it is impossible to evaluate conformity of the Federal law dated 28/12/2013, No. 400-FZ "On insurance pensions" with ILO Convention No. 102 and ECSS, since these international treaties establish a different mechanism for calculating pensions, as a percentage of previous "typical recipient’s" earnings, not by the cost of an individual coefficient.

It is possible to ratify the analysed norm, provided agreement with International Labor Office on the methodology for determining a "typical recipient" and his income for Russia is achieved.

Opinion of the Committee

The Committee invites the Russian authorities to continue their work towards analysing the possible conformity to social security levels fixed by ILO Convention102 and the European Code of social security.

Article 12§3    With a view to ensuring the effective exercise of the right to social security, the Parties undertake to endeavour to raise progressively the system of social security to a higher level

Situation in the Russian Federation

The Russian Federation has a well-developed social security system covering 100% of employees, including temporary and seasonal workers, homeworkers, domestic workers, freelancers, etc.  Аs it is constantly being improved with economic opportunities – the amount of pensions and allowances is being increased, new forms of social protection are being introduced (maternity capital, etc.).

The Federal law dated 16/07/1999 No. 165-FZ lists all kinds of allowances and pensions specified in ILO Convention No. 102 " and European Code of social security (ECSS) 1964. Russian legislation conforms to the ILO Convention No. 102 and ECSS in respect of this parameter.

Social security at the expense of the Federal budget and budgets of the Russian Federation regions is a form of realization of the right to social security for special categories of individuals and covers all categories of public servants and other persons specified in the Federal laws. The amount of social pension is periodically increased and nowadays the amount of social pension exceeds the minimum subsistence level for pensioners (excluding pensions for the disabled of group III).

Another legal form of social security is social assistance, which is a form of realization of the right to social security for low-income individuals regardless of employment and payment of insurance contributions. Legal framework for functioning of the state social assistance system at the Federal and regional levels has been created. However, its development is limited by deficit of regional and municipal budgets and by complexity of the assignment procedure.

In respect of the parameter of "scope" Russian legislation conforms to the standards of ILO Convention No. 102 and ECSS, because 100% of employees are covered by social insurance, 100% of private entrepreneurs, private-sector notary public and attorneys, persons providing services under civil-law contracts are covered by mandatory pension and health insurance. 

Furthermore, Russian legislation establishes mechanisms for increasing pensions and allowances with regard to the consumer price growth index and wage growth index. Besides, working pensioners receive both a salary and the full amount of insurance pension, although ILO Convention No. 102 permits suspension or reduction of pension (paragraph 3, Article 26):

"3. National legislation may provide for suspension of granting of an allowance to the persons entitled to it, but engaged in any prCharterribed gainful activity; it may also reduce the amount of allowances under a system based on insurance contributions, when salary of a person exceeds a specified amount, or under a system not based on contributions when salary of a person, his other means or their total sum exceed a specified amount".

Opinion of the Committee

The Committee recalls that Article 12§3 requires States Parties to improve their social security system. A situation of progress may consequently be in conformity with Article 12§3 even if the requirements of Articles 12§1 and 2 have not been met or if these provisions have not yet been accepted.

The expansion of schemes, protection against new risks or increase in the level of benefits, are examples of improvement.  

In view of the information provided, the Committee considers that the acceptance of this provision is possible.

Article 12§4    With a view to ensuring the effective exercise of the right to social security, the Parties undertake to take steps, by the conclusion of appropriate bilateral and multilateral agreements or by other means, and subject to the conditions laid down in such agreements, in order to ensure:

a.            equal treatment with their own nationals of the nationals of other Parties in respect of social security rights, including the retention of benefits arising out of social security legislation, whatever movements the persons protected may undertake between the territories of the Parties;

b.            the granting, maintenance and resumption of social security rights by such means as the accumulation of insurance or employment periods completed under the legislation of each of the Parties

Situation in the Russian Federation

Legal regulation of relations in the field of social security with participation of migrants in the Russian Federation is not characterized by unified approach. In recent years, migrants temporarily residing on the territory of the Russian Federation and members of their families have got the right for short-term benefits (for temporary disability, maternity, etc.).  The question of granting them rights to receive insurance old-age pension, disability pension and survivor's pension is not under discussion, because it would require a large financial outlay by the Russian Federation.

The principle of "reciprocity" is contrary to the Charter, so the prospect of ratification of paragraph 4 of Article 12 appears to be distant.

The complexity of this problem is evidenced by the fact that ILO Convention No. 157 concerning the Establishment of an International System for the Maintenance of Rights in Social Security, 1982 has been  ratified only by 4 countries:  Spain, Kyrgyzstan, the Philippines, Sweden.

Opinion of the Committee

The Committee invites the Russian authorities to continue their work towards analysing the ensuring equal treatment within the meaning of this provision of the Charter.

Article 13        The right to social and medical assistance

Article 13§1    With a view to ensuring the effective exercise of the right to social and medical assistance, the Parties undertake to ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts or from other sources, in particular by benefits under a social security scheme, be granted adequate assistance, and, in case of sickness, the care necessitated by his condition

Situation in the Russian Federation

Legislation and practice of the Russian Federation do not conform to paragraph 1 of Article 13 of the Charter, because the average family income, when deciding about recognition it being poor and about provision it with state social assistance, is calculated by dividing one-third of all family members’ income for the accounting period by the number of family members and not in the amount of 50% of average equivalent income according to Eurostat.

The amount of assistance is not directly stated in laws and but is defined by territorial bodies of social protection. This means that there is a very high probability of making a decision "at discretion" of these bodies depending on their budget capacity.

The assistance is with a time limit set.

Foreign citizens temporarily staying in the Russian Federation do not have a right to receive state social assistance.

Thus, ratification of paragraph 1 of Article 13 seems unlikely.

In case of ratification, Russia will need significant changes in legislation governing provision of social assistance, as well as a significant increase in financial expenses for this purpose.

Opinion of the Committee

The Committee invites the Russian authorities to continue their work towards increasing the amount of assistance, ensuring equal treatment with the foreign citizens covered by the Charter and providing adequate social assistance throughout the territory of the Federation.

Article 13§2    With a view to ensuring the effective exercise of the right to social and medical assistance, the Parties undertake to ensure that persons receiving such assistance shall not, for that reason, suffer from a diminution of their political or social rights

Situation in the Russian Federation

The Russian legislation does not establish any restriction of Russian citizens’ rights depending on their wealth or social position. But it is clear that persons with no fixed abode (homeless) do not exercise their voting rights. As for retirees and disabled people who are indigent and who live in care-giving institutions, they vote at polling stations specially organized for them in those institutions. They are also provided with free legal assistance. Pensioners are exempt from payment of state duty when applying to courts for protection of their rights.

The European Committee of social rights may request statistical information regarding the number of persons deprived of parental rights due to failure to fulfil their responsibilities for maintenance and upbringing children. After comparing these numbers to the average rates of EU member states, it is possible to raise the issue on ratification of paragraph 2, Article 13 of the Charter.

Opinion of the Committee

The Committee considers that the acceptance of this provision is possible.

It wishes to clarify that the issue of persons having been deprived of their parental rights (due to negligence of ill-treatment of the children) is not relevant under Article 13§2.

Article 13§3    With a view to ensuring the effective exercise of the right to social and medical assistance, the Parties undertake to provide that everyone may receive by appropriate public or private services such advice and personal help as may be required to prevent, to remove, or to alleviate personal or family want

Situation in the Russian Federation

Low income families and citizens living alone receive all the necessary consultative and individual assistance to increase the level of income and overcome this difficult situation.

Opinion of the Committee

The Committee considers that the acceptance of this provision is possible.

Article 13§4    With a view to ensuring the effective exercise of the right to social and medical assistance, the Parties undertake to apply the provisions referred to in paragraphs 1, 2 and 3 of this Article on an equal footing with their nationals to nationals of other Contracting Parties lawfully within their territories, in accordance with their obligations under the European Convention on Social and Medical Assistance, signed at Paris on 11th December 1953.

Appendix: Governments not Parties to the European Convention on Social and Medical Assistance may ratify the Charter in respect of this paragraph provided that they grant to nationals of other Parties a treatment which is in conformity with the provisions of the said convention.

Situation in the Russian Federation

The Russian Federation has no grounds to ratify paragraph 4 of Article 13 of the Charter prior to the ratification of the European Convention on Social and Medical Assistance dated 11/12/1953.

Opinion of the Committee

The Committee recalls that the ratification of the 1953 Convention is not a prerequisite to the acceptance of Article 13§4.

In view of the limited information provided, the Committee cannot express an opinion of the possibility to accept this provision.

Article 15 The right of persons with disabilities to independence, social integration and participation in the life of the community

Article 15§3    With a view to ensuring to persons with disabilities, irrespective of age and the nature and origin of their disabilities, the effective exercise of the right to independence, social integration and participation in the life of the community, the Parties undertake, in particular to promote their full social integration and participation in the life of the community in particular through measures, including technical aids, aiming to overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure

Situation in the Russian Federation

After ratification by the Russian Federation of the Convention on the Rights of Persons with Disabilities 2006, the necessary legal framework was developed and adopted for creation of accessible environment for the disabled and their integration into society. However, the planned statistical ratios of accessibility have not been achieved yet.

Ratification of paragraph 3, Article 15 could become possible after they are achieved.

Opinion of the Committee

The Committee considers that, following the ratification of the UN Convention, this provision may be accepted. It encourages the Russian authorities to proceed with the acceptance without delay.

Article 18        The right to engage in a gainful occupation in the territory of other Parties

Article 18§1    With a view to ensuring the effective exercise of the right to engage in a gainful occupation in the territory of any other Party, the Parties undertake to apply existing regulations in a spirit of liberality

Article 18§2    With a view to ensuring the effective exercise of the right to engage in a gainful occupation in the territory of any other Party, the Parties undertake to simplify existing formalities and to reduce or abolish chancery dues and other charges payable by foreign workers or their employers

Article 18§3    With a view to ensuring the effective exercise of the right to engage in a gainful occupation in the territory of any other Party, the Parties undertake to liberalise, individually or collectively, regulations governing the employment of foreign workers

Situation in the Russian Federation

Ratification is not foreseen.

Opinion of the Committee

The information provided does not allow the Committee to express any opinion on the acceptance of these provisions.

Article 19        The right of migrant workers and their families to protection and assistance

Article 19§1    With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Party, the Parties undertake:

Ø  to maintain or to satisfy themselves that there are maintained adequate and free services to assist such workers, particularly in obtaining accurate information, and to take all appropriate steps, so far as national laws and regulations permit, against misleading propaganda relating to emigration and immigration;

Situation in the Russian Federation

Russian law system generally conforms to the requirements of paragraph 1, Article 19 of the Charter.  In order to bring the law enforcement practice in compliance with these requirements it is necessary to implement policies aimed at reducing the scope of "shadow" labour relations with migrant workers and to take effective action to combat unfair intermediaries in the labour market and abuses by employers.

In case of ratification of this clause, some more additional efforts will be required in the following areas:

- Increase the level of accessibility of information on labour migration, increase of access to free consultative services, creation of a more comprehensive and coherent system of providing information on this issue.

- Expansion of possibilities to get information necessary for migrants on issues about the life and work conditions one may experience in Russia (opportunity to have a consultation on vocational guidance and training, social security, trade union membership, housing, social services, education and health, etc.).

- Taking measures aimed at halting the dissemination of misleading information about emigration; and taking measures to combat racism, xenophobia aimed at all segments of the population.

According to the above mentioned ratification of this paragraph of Article 19 seems to be possible and appropriate.

Opinion of the Committee

In view of the information provided, the Committee considers that this provision could be accepted.

Article 19§2    With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Party, the Parties undertake:

Ø  to adopt appropriate measures within their own jurisdiction to facilitate the departure, journey and reception of such workers and their families, and to provide, within their own jurisdiction, appropriate services for health, medical attention and good hygienic conditions during the journey;

Situation in the Russian Federation

Russian legal norms related to provision of social services to foreigners mostly apply to those people who have already obtained a residence permit in Russia, who is living in Russia for over a year and, thus, they are not directly related to the process of facilitating the arrival and settlement of foreigners (including migrant workers) in Russia. 

Assuming that changes in government policy increasing the level of social security of people coming to Russia for work are not expected, ratification of this paragraph seems inappropriate.

In case of ratification of paragraph 2, Article 19 of the Charter, it will be necessary to adopt legislation aimed at dissemination of legal norms on mandatory health insurance at all foreign workers (such projects are currently under discussion), and to develop new standards (including financial resources allocation and institutional infrastructure creation) for assistance in short-term housing of migrants and in case they lack  money.

Opinion of the Committee

The Committee recalls that Article 19§2 protects migrants during their journey. It invites the Russian authorities to continue their work towards providing the adequate legal framework in this respect.

Article 19§3    With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Party, the Parties undertake:

Ø  to promote co-operation, as appropriate, between social services, public and private, in emigration and immigration countries.

Situation in the Russian Federation

Russian legislation and law enforcement practices generally comply with the requirements of paragraph 3, Article 19 of the Charter in the interpretation of the European Committee on social rights, due to what the paragraph can be ratified. Nevertheless, Russian Federal migration service should make information on its international cooperation with relevant agencies of other countries more open.

Opinion of the Committee

In view of the information provided, the Committee considers that this provision could be accepted.

Article 19§4    With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Party, the Parties undertake:

Ø  to secure for such workers lawfully within their territories, insofar as such matters are regulated by law or regulations or are subject to the control of administrative authorities, treatment not less favourable than that of their own nationals in respect of the following matters:

a. remuneration and other employment and working conditions;

b. membership of trade unions and enjoyment of the benefits of collective bargaining;

c. accommodation.

Situation in the Russian Federation

Russian legislation complies with the provisions of paragraph 5, Article 19 of the Charter in terms of providing legal migrant workers with rights in the field of remuneration and other working conditions; membership in trade unions and enjoyment of the benefits granted as a result of collective negotiations; the right to acquire home ownership. 

However, Russian legislation contains a direct prohibition to receive housing from the state or municipal housing fund on the terms of social hiring.

So ratification of paragraph 5, Article 19 of the Charter will require making significant changes in legislation, taking by the Russian Federation significant financial obligations in the field of housing. 

Due to this it is not yet recommended to ratify paragraph 5, Article 19 of the Charter.

Opinion of the Committee

In view of the information provided, the Committee considers that this provision could be accepted at least in respect of letters a) and b). It invites the Russian authorities to continue their work towards providing the protection in respect of housing.

Article 19§6    With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Party, the Parties undertake:

Ø  tofacilitate as far as possible the reunion of the family of a foreign worker permitted to establish himself in the territory.

Situation in the Russian Federation

Appendix:  Annex to Article 19 § 6 of the Charter 1961 states: "For the purpose of this provision, the term "family of a foreign worker" is understood to mean at least his wife and dependent children under the age of twenty-one years".

Although the legislation sets no limits recognized by the European Committee on social rights as unacceptable and excessive, it doesn’t contain any significant guidelines to facilitate family reunification as well.

In case of ratification of paragraph 6, Article 19 of the Charter, development of rules aimed at enjoyment of this right will be required. 

Opinion of the Committee

The Committee invites the Russian authorities to continue their work towards providing the appropriate legal framework in respect of family reunion.

Article 19§7    With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Party, the Parties undertake to secure for such workers lawfully within their territories treatment not less favourable than that of their own nationals in respect of legal proceedings relating to matters referred to in this Article

Situation in the Russian Federation

Russian legislation mostly conforms to the provisions of paragraph 7, Article 19 of the Charter, however, for bringing it to full compliance with the specified regulation, the following measures are necessary:

- changes of the Law "On public prosecutor" aimed at dissemination of power of prosecutors on foreign workers as well; 

- amendments to Articles 355, 356, 360 of the RF Labor Code and empowerment of the Federal Labour Service with regard to all employees and not only citizens;  

- solution of a question on providing migrant workers with free legal aid.

Opinion of the Committee

The Committee invites the Russian authorities to continue their work towards providing the appropriate legislative framework as well as its implementation in practice.

Article 19§8    With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Party, the Parties undertake to secure that such workers lawfully residing within their territories are not expelled unless they endanger national security or offend against public interest or morality;

Situation in the Russian Federation

Russian legislation does not conform to this paragraph for a number of items, and its ratification will require significant changes in a number of laws and regulations. It is therefore recommended to abstain from the ratification of this paragraph.

Opinion of the Committee

The Committee invites the Russian authorities to continue their work towards providing the appropriate legislative framework as well as its implementation in practice.

Article 19§10  With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Party, the Parties undertake:

Ø  to extend the protection and assistance provided for in this Article to self-employed migrants insofar as such measures apply.

Situation in the Russian Federation

There are no obstacles for  ratification concerning the establishment of unequal treatment with migrant workers and self-employed migrants.

Opinion of the Committee

In view of the information provided, the Committee considers that this provision could be accepted.

Article 19§11  With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Party, the Parties undertake:

Ø  to promote and facilitate the teaching of the national language of the receiving state or, if there are several, one of these languages, to migrant workers and members of their families.

Situation in the Russian Federation

Russian legislation guarantees the right to obtain general, basic general and secondary general education for children of migrant workers on an equal basis with other children living on the territory of Russia. Difficulties arise while exercising the right to free pre-school education in regions due to a shortage of places in prCharterhool facilities.

There are no free programmes aimed at teaching Russian language for migrant workers and members of their families, including children over the school age, teaching the national language at the workplace, in private or public institutions such as universities.

In case of ratification of paragraph 11, Article 19 of the Charter it will be necessary to develop policies, to adopt legal acts and to take steps aimed at implementing these measures.

Opinion of the Committee

The Committee invites the Russian authorities to continue their work towards providing the appropriate legislative framework as well as its implementation in practice.

Article 19§12  With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Party, the Parties undertake:

Ø  to promote and facilitate, as far as practicable, the teaching of the migrant worker’s mother tongue to the children of the migrant worker.


Situation in the Russian Federation

In case of ratification of paragraph 12, Article 19 of the Charter, Russia will be required to develop measures aimed at helping schools and other structures, particularly public associations, in introduction and organization of teaching foreign languages spoken by children of migrant workers (including finance, organizational and methodological support). 

With these measures demanding financial resources, their usefulness is rather controversial. In fact, teaching foreign languages of migrant workers’ origin countries will impede integration of migrants into Russian society stimulating their closed communication in the native language in Russia and maintenance of ethnic enclaves. It seems that not Russia as a country-recipient of the workforce but migrant workers’ origin countries are interested to a greater extent in support of such kind of education.  In this situation it is not clear why Russian taxpayers should fund such measures at their own expense. If migrant workers’ origin countries are willing to fund this sort of programs, this should not be discouraged. However, making commitments for maintenance and funding of such education through ratification by Russia of paragraph 12,  Article 19 of the Charter does not seem appropriate.

Opinion of the Committee

The Committee invites the Russian authorities to continue their work towards providing the appropriate measures in order to comply with this provision.

Article 23        The right of elderly persons to social protection

With a view to ensuring the effective exercise of the right of elderly persons to social protection, the Parties undertake to adopt or encourage, either directly or in co-operation with public or private organisations, appropriate measures designed in particular:

Ø  to enable elderly persons to remain full members of society for as long as possible, by means of:

                  a    adequate resources enabling them to lead a decent life and play an active part in public, social and cultural life;

b    provision of information about services and facilities available for elderly persons and their opportunities to make use of them;

Ø  to enable elderly persons to choose their lifestyle freely and to lead independent lives in their familiar surroundings for as long as they wish and are able, by means of:

a    provision of housing suited to their needs and their state of health or of adequate support for adapting their housing;

b    the health care and the services necessitated by their state;           

Ø  to guarantee elderly persons living in institutions appropriate support, while respecting their privacy, and participation in decisions concerning living conditions in their institution.

Situation in the Russian Federation

Article 23. Part 1, а)

For full conformity with the Charter Russian legislation needs to be updated with the term "elderly person", the increase of the amount of payments and new types of payments so that pensions and other state benefits would be sufficient to ensure "decent life" and active participation in public, social and cultural life of an elderly person.

Article 23. Par 1, b)

Russian legislation generally conforms to the requirements stated in this item.

Article 23. Par 2, а)

Russian legislation basically meets the requirements stated in part 2, item a), Article 23 of the Charter.

Article 23. Pat 2, b)

Russian law basically conforms to the requirements specified in the paragraph of the Charter.  For full conformity, it is necessary to take special psychological wellness programmes, which would solve psychological problems of the elderly, and also would provide palliative care.

Article 23. Par 3

Russian legislation does not fully conform to the requirements of part 3, Article 23 of the Charter.  For full conformity, the Federal law dated 28.12.2013 No. 442-FZ (amended on 21/07/2014) "On the bases of social service of citizens in the Russian Federation" should envisage rules on affordable prices for citizens to stay in day-and-night clinics or coverage of such a sty by allowances. There should also be issues concerning requirements for qualification of the personnel, staff training and salaries of the personnel in these establishments.

General conclusion 

Thus, Russian legislation partially conforms to Article 23 of the European Social Charter.

In particular, Russian legislation fully conforms to part 1, item b), part 2,  ratification is recommended. As for conformity to part 1, item a), part 2, item b), part 3, it is necessary to make changes in legal acts of the Russian Federation.

Opinion of the Committee

In view of the information provided, the Committee considers that there are no major obstacles for acceptance by the Russian Federation of this provision. It notes in this context that some States have made reservations when accepting Article 23 of the Charter.

Article 25        The right of workers to the protection of their claims in the event of the insolvency of their employer

Situation in the Russian Federation

Appendix:

1. It is understood that the competent national authority may, by way of exemption and after consulting organizations of employers and workers, exclude certain categories of workers from the protection provided by reason of the special nature of their employment relationship. 

2. It is understood that the definition of the term "insolvency" must be determined by  national law and practice. 

3. The workers’ claims covered by this provision should include at least: 

a) the workers’ claims for wages relating to a prCharterribed period, which shall not be less than three months under a privilege system and eight weeks under a guarantee system, prior to the insolvency or to the termination of employment;

b) the workers’ claims for holiday pay due as a result of work performed during the year in which the insolvency or the termination of employment occurred; 

 c) the workers’ claims for amounts due in respect of other types of paid absence relating to a prCharterribed period, which shall not be less than three months under a privilege system and eight weeks under a guarantee system, prior to the insolvency or the termination of the employment.

4. National laws or regulations may limit the protection of workers’ claims to a prCharterribed amount, which shall be of a socially acceptable level. 

Full ratification of Article 25 of the Charter and ILO Convention No. 173 makes sense after creation in Russia of a mandatory insurance system for employers on their liabilities for wages in case of bankruptcy.

Opinion of the Committee

The Committee invites the Russian authorities to continue their work towards providing the appropriate legislative framework as well as its implementation in practice.

Article 26        The right to dignity at work

Article 26§1    With a view to ensuring the effective exercise of the right of all workers to protection of their dignity at work, the Parties undertake, in consultation with employers’ and workers’ organisations:

Ø  to promote awareness, information and prevention of sexual harassment in the workplace or in relation to work and to take all appropriate measures to protect workers from such conduct;

Situation in the Russian Federation

Appendix:  It is understood that this Article does not require adoption of special legislation by the Parties .

It appears that ratification of paragraph 1, Article 26 of the Charter in Russia is a step much-in-demand, the adoption of which could promote the right of workers to protect their dignity. 

At the same time, ratification will require several amendments to the legislation and a number of organizational measures.

Opinion of the Committee

The Committee invites the Russian authorities to continue their work towards providing the appropriate legislative framework as well as its implementation in practice.

Article 26§2    With a view to ensuring the effective exercise of the right of all workers to protection of their dignity at work, the Parties undertake, in consultation with employers’ and workers’ organisations:

Ø  to promote awareness, information and prevention of recurrent reprehensible or distinctly negative and offensive actions directed against individual workers in the workplace or in relation to work and to take all appropriate measures to protect workers from such conduct.


Situation in the Russian Federation

Appendix:  This Article does not contain any requirements for adoption of special legislation by the Parties . Paragraph 2 of this Article shall not extend to matters relating to sexual harassment.

In Russian legislation there is a fundamental basis for subsequent adoption of special rules against harassment or psychological pressure (mobbing).

The Labour Code of the Russian Federation contains general legal norms aimed at protection of worker’s dignity during the period of employment, providing the possibility to compensate moral harm done to the employee by wrongful actions or inactions of the employer. Since the appendixes to paragraphs 1 and 2, Article 26 of the Charter specify that States are not required to adopt special national laws governing protection from harassment, humiliating or offensive behaviour.

Article 26 of the Charter is considered to be possible to be ratified. 

However, in order to create an effective mechanism of this Article implementation, it is expedient to amend the national legislation.

Opinion of the Committee

The Committee invites the Russian authorities to continue their work towards providing the appropriate legislative framework as well as its implementation in practice.

Article 30        The right to protection against poverty and social exclusion

With a view to ensuring the effective exercise of the right to protection against poverty and social exclusion, the Parties undertake:

Ø  a. to take measures within the framework of an overall and co-ordinated approach to promote the effective access of persons who live or risk living in a situation of social exclusion or poverty, as well as their families, to, in particular, employment, housing, training, education, culture and social and medical assistance.

Ø  b. to review these measures with a view to their adaptation if necessary.

Situation in the Russian Federation

Russia adopts comprehensive legal measures to combat poverty. Social poverty extends to socially vulnerable categories of the population (the elderly, the disabled, large families, etc.) and is overcome mainly by instruments of social security. 

At the same time, Russian social legislation contains various legal means of fighting poverty, there is a fairly well-developed social benefits system that allows to render state support to the poorest categories of population. Comparative analysis of provisions of Article 23 of the European Social Charter and Russian legislation concerning social rights leads to the conclusion that Russian Federation legal acts adequately reflect the main provisions of the European Social Charter.  However, the current social legislation of Russia must be supplemented by specific rules of the Charter.

In case this paragraph is ratified, some additional efforts will be required to establish control mechanisms including comprehensive cooperation of all stakeholders including civil society and persons directly affected by poverty and social exclusion.

Analysing the conformity of Russian legislation to the Charter, we can conclude that institutional and legal framework existing in Russia for social and economic guarantees to citizens mainly conforms to the provisions of the Charter.  At the same time, the level of actually provided guarantees for certain social groups depends on the economical capacity of the state. The increase of this level up to the standards set out by the Charter is connected with the further economic development of the country.

Thus, ratification of the Article would be premature.

Opinion of the Committee

The Committee invites the Russian authorities to continue their work towards providing the appropriate measures as well as their implementation in practice.

Article 31        The right to housing

With a view to ensuring the effective exercise of the right to housing, the Parties undertake to take measures designed:

Article 31§1

Ø  to promote access to housing of an adequate standard

Article 31§2

Ø  to prevent and reduce homelessness with a view to its gradual elimination;

Article 31§3

Ø  to make the price of housing accessible to those without adequate resources.

Situation in the Russian Federation

Russian legislation partially conforms to Article 31 of the European Social Charter. In particular, the Russian legislation fully conforms to part 1, and its ratification is recommended. As for conformity to part 2 and part 3, it is necessary to make changes in Russian Federation legislation.

Opinion of the Committee

In view of the information provided, the Committee considers that Article 31§1 could be accepted. For the other paragraphs, the Committee invites the Russian authorities to continue their work towards providing the appropriate legislative framework as well as its implementation in practice


APPENDIX I

- Russian Federation and the European Social Charter -


Ratifications

The Russian Federation signed the Revised European Social Charter on 14 September 2000 and ratified it on  16 October 2009, accepting 67 of the Revised Charter’s 98 paragraphs.


it has not yet accepted the Additional Protocol providing for a system of Collective Complaints.


Table of accepted provisions

1.1

1.2

1.3

1.4

2.1

2.2

2.3

2.4

2.5

2.6

2.7

3.1

3.2

3.3

3.4

4.1

4.2

4.3

4.4

4.5

5

6.1

6.2

6.3

6.4

7.1

7.2

7.3

7.4

7.5

7.6

7.7

7.8

7.9

7.10

8.1

8.2

8.3

8.4

8.5

9

10.1

10.2

10.3

10.4

10.5

11.1

11.2

11.3

12.1

12.2

12.3

12.4

13.1

13.2

13.3

13.4

14.1

14.2

15.1

15.2

15.3

16

17.1

17.2

18.1

18.2

18.3

18.4

19.1

19.2

19.3

19.4

19.5

19.6

19.7

19.8

19.9

19.10

19.11

19.12

20

21

22

23

24

25

26.1

26.2

27.1

27.2

27.3

28

29

30

31.1

31.2

31.3

Grey = Accepted provisions

Reports *

Between 2011 and 2014  the Russian Federation has submitted 4 reports on the application of the Revised Charter

The 3 submitted on 20/12/2013 concerns the accepted provisions of the Revised Charter relating to Thematic Group 3 “Labour rights” (Articles 2, 4, 5, 6, 21, 22, 28 and 29). The Conclusions in respect of these provisions were published in January 2015.

 

The 4th report, submitted on 01/12/2014 concerns the accepted provisions relating to Thematic Group 4 “Children, family, migrants’, namely:

•the right of children and young persons to protection (Article 7),

•the right of employed women to protection of maternity(Article 8),

•the right of the family to social, legal and economic protection (Article 16),

•the right of children and young persons to social and economic protection (Article 17),

•the right of migrant workers and their families to protection and assistance (Article 19),

•the right of workers with family responsibilities to equal opportunities and equal treatment (Article 27),

•the right to housing (Article 31).

In addition, the report should concern the information required by the European Committee of Social Rights in the framework of Conclusions 2013 (Articles 3, 11, 12, 13, 14, 23 and 30, relating to Thematic group 2 “Health, social security and social protection”), in the event of non-conformity for lack of information. Conclusions in respect of these provisions will be published in January 2016.

_______

* Following a decision taken by the Committee of Ministers in 2006, the provisions of the Charter have been divided into four thematic groups.  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 every four years. As from 2014 State Parties having accepted the complaints procedure have to provide a national report every two years only.


Situation of the Russian Federation with respect to the application of the Charter

Cases of non-conformity

Thematic Group 1 “Employment, training and equal opportunities

Article 18§4 - Right to engage in a gainful occupation in the territory of other States Parties- Right of nationals to leave the country

The law provides for prohibition to leave the country which is not justified within the meaning of Article G of the Charter.

(Conclusions 2012)

Thematic Group 2 “Health, social security and social protection

Article 3§3 - Right to safe and healthy working conditions – Enforcement of safety and health regulations

Measures to reduce the excessive rate of fatal accidents are inadequate.

(Conclusions 2013)

Article 11§1 - Right to protection of health – Removal of the causes of ill-health

Insufficient efforts have been undertaken to reduce the high infant and maternal mortality rates. (Conclusions 2013)

Article 12§1 – Right to social security – Existence of a social security system

The minimum level of unemployment benefit is manifestly inadequate.

(Conclusions 2013)

Thematic Group 3 “Labour rights”

Article 4§2 –  Right to a fair remuneration-Increased remuneration for overtime work

An increased time off for overtime hours is not guaranteed.

(Conclusions 2014)

Article 4§4 –  Right to a fair remuneration-Reasonable notice of termination of employment

The notice period is not reasonable in the following cases: dismissal of employees with more than fifteen years of service following the dissolution of the organisation or reduction in staff numbers; dismissal of employees with more than six months of service for medical incapacity, call-up for military service, judicial or administrative reinstatement of the employee or refusal to be transferred when an employer relocates; dismissal during probationary periods; dismissal of employees in additional employment with more than six months of service upon reinstatement of the principal  postholder; early termination of temporary contracts. Notice periods applicable to employees of self-employed persons or religious organisations or to home workers are left to the discretion of the parties to the employment contact.

(Conclusions 2014)

Article 4§5 –  Right to a fair remuneration-Limits to wage deductions

Following all authorised deductions, the wages of employees with the lowest pay do not enable them to provide for themselves or their dependents.

Thematic Group 4 “Children, families, migrants”

Not yet examined

The European Committee of Social Rights has been unable to assess compliance with the following provisions and has invited the Government of the Russian Federation to provide more information in the next report:

Thematic Group  1 “Employment, training and equal opportunities”

(Report to be submitted before 31 October 2015)

Article 1§1- Conclusions 2012

Article 1§2 Conclusions 2012

Article 1§3 Conclusions 2012

Article 1§4 Conclusions 2012

Article 9 Conclusions 2012

Article 10§2 Conclusions 2012

Article 10§5 Conclusions 2012

Article 15§1 Conclusions 2012

Article 15§2 Conclusions 2012

Article 20 Conclusions 2012

Article 24 Conclusions 2012

Thematic Group 2 “Health, social security and social protection”

(Report to be submitted before 31 October 2016)

Article 3§2 Conclusions 2013

Article 3§4 Conclusions 2013

Article 11§2 Conclusions 2013

Article 11§3 Conclusions 2013

Article 14§1 Conclusions 2013

Article 14§2 Conclusions 2013

Thematic Group 3 “Labour rights”

Article 2§3 Conclusions 2014

Article 2§7 Conclusions 2014

Article 4§3 Conclusions 2014

Article 5 Conclusions 2014

Article 6§1,3,4 Conclusions 2014

Article 21 Conclusions 2014

Article 21 Conclusions 2014

Article 22 Conclusions 2014

 Article 28 Conclusions 2014

Article 29 Conclusions 2014

Thematic Group 4 “Children, families, migrants”

(Report to be submitted before 31 October 2014)

-


APPENDIX II

Declaration of the Committee of Ministers on the 50th anniversary of the European Social Charter

(Adopted by the Committee of Ministers on 12 October 2011 at the 1123rd meeting of the Ministers’ Deputies)

The Committee of Ministers of the Council of Europe,

Considering the European Social Charter, opened for signature in Turin on 18 October 1961 and revised in Strasbourg on 3 May 1996 (“the Charter”);

Reaffirming that all human rights are universal, indivisible and interdependent and interrelated;

Stressing its attachment to human dignity and the protection of all human rights;

Emphasising that human rights must be enjoyed without discrimination;

Reiterating its determination to build cohesive societies by ensuring fair access to social rights, fighting exclusion and protecting vulnerable groups;

Underlining the particular relevance of social rights and their guarantee in times of economic difficulties, in particular for individuals belonging to vulnerable groups;

On the occasion of the 50th anniversary of the Charter,

1.         Solemnly reaffirms the paramount role of the Charter in guaranteeing and promoting social rights on our continent;

2.         Welcomes the great number of ratifications since the Second Summit of Heads of States and Governments where it was decided to promote and make full use of the Charter, and calls on all those member states that have not yet ratified the Revised European Social Charter to consider doing so;

3.         Recognises the contribution of the collective complaints mechanism in furthering the implementation of social rights, and calls on those members states not having done so to consider accepting the system of collective complaints;

4.         Expresses its resolve to secure the effectiveness of the Social Charter through an appropriate and efficient reporting system and, where applicable, the collective complaints procedure;

5.         Welcomes the numerous examples of measures taken by States Parties to implement and respect the Charter, and calls on governments to take account, in an appropriate manner, of all the various observations made in the conclusions of the European Committee of Social Rights and in the reports of the Governmental Committee;

6.         Affirms its determination to support States Parties in bringing their domestic situation into conformity with the Charter and to ensure the expertise and independence of the European Committee of Social Rights;

7.         Invites member states and the relevant bodies of the Council of Europe to increase their effort to raise awareness of the Charter at national level amongst legal practitioners, academics and social partners as well as to inform the public at large of their rights.