European Social Charter. European Committee of Social Rights. Conclusions XIX-4 (2011) (POLAND) Articles 7, 8, 16, 17 and 19 of the Charter

Transcription

1 January 2012 European Social Charter European Committee of Social Rights s XIX-4 (2011) (POLAND) Articles 7, 8, 16, 17 and 19 of the Charter This text may be subject to editorial revision.

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3 Introduction The function of the European Committee of Social Rights is to rule on the conformity of the situation in States with the European Social Charter. In respect of national reports, it adopts "conclusions" and in respect of collective complaints, it adopts "decisions". A presentation of this treaty as well as statements of interpretation formulated by the Committee appear in the General Introduction to the s. 1 The European Social Charter was ratified by Poland on 25 June The time limit for submitting the 10th report on the application of this treaty to the Council of Europe was 31 October 2010 and Poland submitted it on 1 February This report concerned the accepted provisions of the following articles belonging to the thematic group "Children, families and migrants": 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 mothers and children to social and economic protection (Article 17), the right of migrant workers and their families to protection and assistance (Article 19). Poland has accepted all Articles from this group with the exception of Articles 7 1, 7 3 and 7 5. The reference period was 1 January 2003 to 31 December 2009 for Articles 7, 8 and 17 and 1 January 2005 to 31 December 2009 for Articles 16 and 19. The present chapter on Poland concerns 23 situations and contains: 14 conclusions of conformity: Articles 7 2, 7 4, 7 6, 7 7, 7 8, 7 9, 8 1, 8 3, 19 1, 19 3, 19 5, 19 7, 19 8 and 19 9 ; 5 conclusions of non-conformity: Articles 7 10, 8 4, 16, 17 and In respect of the other 4 situations concerning Articles 8 2, 19 2, 19 4 and 19 10, the Committee needs further information in order to assess the situation. The Government is therefore invited to provide this information in the next report on the articles in question. The next Polish report deals with the accepted provisions of the following articles belonging to the first thematic group "Employment, training and equal opportunities": the right to work (Article1), the right to vocational guidance (Article 9), the right to vocational training (Article 10), the right of persons with disabilities to independence, social integration and participation in the life of the community (Article 15), the right to engage in a gainful occupation in the territory of other States Parties (Article 18), the right of men and women to equal opportunities (Article 1 of the Additional Protocol). The deadline for the report was 31 October The conclusions as well as state reports can be consulted on the Council of Europe's Internet site ( 3

4 Article 7 - Right of children and young persons to protection Paragraph 2 - Higher minimum age in dangerous or unhealthy occupations The Council of Ministers Regulation of 24 August 2004 on the list of prohibited work for young people and the conditions in which some of these types of work may be performed, which was adopted on the basis of Article 204 of the Labour Code, established a register of tasks that young people may not perform because they pose threats to their health or safety. The report reproduces the list of occupations referred to in the regulation, which may only be performed by young people over 17 and then only as part of an apprenticeship. It includes: the manufacturing of glass objects, except for glassblowing using a blowpipe; welding, cutting and smelting metals, except for non-ferrous metals and welding in reservoirs and under water; manual forge work, provided that any hammers used do not exceed 5 kg in weight; work connected with the handling of tractive vehicles and with train driving (under the direct supervision of authorised staff); work connected with assembling, dismantling and maintaining electric power lines, circuit breakers, electrical substations and signalling centres, including tasks ten metres above ground; work in school workshops or on company training premises where practical apprenticeships in a trade are offered such as: - the use of mechanical hammers, presses, rollers, cutters, slicers and shredders, starter motors and power take-offs (PTOs) used to transfer the power from a motor to a separate machine; - timber processing using chainsaws, electric or mechanical saws and other timber processing machines, timber harvesting, forestry work and timber transport. The Committee refers to the description in its previous conclusion (s XVII-2) of how the labour inspectorate applies the rules regarding the minimum age for workers with respect to dangerous activities. It notes from the report that irregularities were identified in 27 to 37% of the companies inspected during the reference period in the process of drawing up the register of jobs and occupations that are prohibited for young people and in 37 to 43% of companies with regard to the establishment of the list of tasks authorised during apprenticeships. These figures fluctuate from one year to the next and there is no clear upward or downward trend. The Committee notes the high level of identified irregularities and the lack of effectiveness of the measures taken to remedy them. It asks what the Government intends to do to solve the problem. The Committee notes, however, that these irregularities related solely to the establishment of the requisite lists and did not necessarily reflect the fact that young people performed dangerous or unhealthy tasks in these companies, which is a matter that is not dealt with in the report. It asks for information on this subject to be included in the next report. Pending receipt of the information requested, the Committee concludes that the situation in Poland is in conformity with Article 7 2 of the 1961 Charter. Article 7 - Right of children and young persons to protection Paragraph 4 - Working time for young persons under 16 The Committee notes from the report submitted by Poland that there have been no changes in the legal situation it previously considered to be in conformity with Article 7 4 of the 1961 Charter. 4

5 It notes that according to the report, during the reference period, 1 to 3% of employers inspected had not complied with the legal limits on young people s working hours and that this figure has decreased since the previous period. The Committee concludes that the situation in Poland is in conformity with Article 7 4 of the 1961 Charter. Article 7 - Right of children and young persons to protection Paragraph 6 - Inclusion of time spent on vocational training in the normal working time The Committee notes from the report submitted by Poland that there have been no changes in the legal situation it previously considered to be in conformity with Article 7 6 of the 1961 Charter. The Committee concludes that the situation in Poland is in conformity with Article 7 6 of the 1961 Charter. Article 7 - Right of children and young persons to protection Paragraph 7 - Paid annual holidays The Committee notes from the report submitted by Poland that there have been no changes in the legal situation it previously considered to be in conformity with Article 7 7 of the 1961 Charter. The Committee concludes that the situation in Poland is in conformity with Article 7 7 of the 1961 Charter. Article 7 - Right of children and young persons to protection Paragraph 8 - Prohibition of night work The Committee notes from the report submitted by Poland that there have been no changes in the legal situation it previously considered to be in conformity with Article 7 8 of the 1961 Charter. It recalls that, following the incorporation into Polish law of Directive 94/33/ECError! Hyperlink reference not valid., workers under 18 years of age may not work from 10 pm to 6 am, while those under 16 years of age or who have not completed high school, may not work between 8 pm and 6 am. It notes that, according to the report, during the reference period, 1 to 3% of employers inspected had not complied with the legal provisions governing night work for young workers. The Committee concludes that the situation in Poland is in conformity with Article 7 8 of the 1961 Charter. Article 7 - Right of children and young persons to protection Paragraph 9 - Regular medical examination The Committee notes from the report submitted by Poland that there have been no changes in the legal situation it previously considered to be in conformity with Article 7 9 of the 1961 Charter. The Committee notes that according to the report, there were irregularities in 13% of the companies inspected in 2009 with regard to the regular medical examination of young workers and that this figure had decreased since the beginning of the reference period (17% in 2003). 5

6 The Committee concludes that the situation in Poland is in conformity with Article 7 of the 1961 Charter. Article 7 - Right of children and young persons to protection Paragraph 10 - Special protection against physical and moral dangers Protection against sexual exploitation Child pornography In its previous conclusion the Committee held that the situation in Poland was not in conformity with Article 7 10 of the Charter on the ground that young persons between 15 and 18 years were not adequately protected against all forms of sexual exploitation and in particular child pornography. In this connection, the Committee notes from the report that the age of sexual consent is 15 years. Protection provided for minors in the age group takes into account the fact that such persons are already capable of taking their own decisions concerning their sexual life. This group is protected against the crime of trafficking (Article 204 of the Criminal Code). According to the report, importation, storage, or possession of pornographic material for private use involving a person over 15 years of age is not a criminal offence. However, diffusion, public visualisation, production or possession with a view to dissemination is a criminal act (Article 202, paragraph 3). The Committee considers that minors in the age group are not protected against all forms of child pornography as the same legislation applies to them as to adults which does not criminalise a simple possession and storage of pornography. In this connection, the Committee recalls that minors under the age of 18 years should be protected against all forms of child pornography, including a simple possession. Therefore the Committee concludes that the situation is not in conformity with the Charter. The Committee also notes from ECPAT 1 that in terms of legislation, Polish law offers some protection against child pornography, but requires strengthening to fully conform to international standards. Polish legislation does not specifically define or prohibit child pornography, nor does it define child pornographic images; as such, it is unclear whether it considers the representations of simulated explicit sexual activities or of the sexual parts of a child as pornographic images. Similarly, nowhere does the Polish law address whether computerised, digital or electronic sexual images of children may be considered as pornographic material. The Committee asks the next report to provide comments on these observations. Child prostitution As regards child prostitution, the Committee previously asked whether the criminal law prohibited the purchase of sexual services from all minors under 18 years of age and whether the child victims of prostitution could be held criminally responsible. In this regard the report gives account of the amendments modifying the Criminal Code during the reference period. Law of 27 July 2005 which modified the Criminal Code, stipulates in its Article 199 that delivering all persons under 18 years of age for prostitution by abusing their trust and offering them material profit is a criminal offence for which the punishment may be up to ten years. Enticement of a minor under 18 years of age into prostitution with the aim to draw material profit is also criminalised. The Committee notes from the report that the Polish law does not foresee any punishment of child victims of sexual abuse. Trafficking The Committee takes note of legislation on trafficking which entered into force outside the reference period (2010). It wishes to be kept informed about the measures taken to implement this 6

7 legislative framework. It notes that in 2008, 60 cases of trafficking were reported of which 4 resulted in conviction. Protection against the misuse of information technologies According to the report, to increase the effectiveness of the fight against paedophilia on internet, the law on the functioning of the police was amended on November 5, A new type of crime was introduced in the Criminal Code (Article 200a entitled 'child grooming'). It concerns contacting a minor under 15 years through the computer communications system or telecommunications network, and making arrangements to meet the minor with a view to sexual exploitation or production of pornographic material involving the minor. The Committee notes that between , 22 operations were conducted against paedophilia on internet. 299 persons were accused of having had sexual contacts with minors under 15 years of age or for having possessed child pornography. Protection from other forms of exploitation The Committee reiterates its question concerning the situation of street children and measures taken to assist them. The Committee concludes that the situation in Poland is not in conformity with Article 7 10 of the 1961 Charter on the ground that simple possession and storage of child pornography is not a criminal offence if it involves a minor aged

8 Article 8 - Right of employed women to protection Paragraph 1 - Maternity leave Right to maternity leave The situation was previously found to be in conformity with Article 8 1 as women were entitled to 16 weeks maternity leave (increased in case of multiple births), including 8 weeks compulsory postnatal leave. The report indicates that from 1 January 2009 women have been entitled to 20 weeks maternity leave (31 weeks in case of two children and up to 37 weeks in case of five children), including 8 weeks of compulsory postnatal leave. The situation is therefore in conformity with Article 8 1. However, the Committee asks whether the same regime applies to women employed in the public sector. Right to maternity benefits According to the Act on Social Insurance Benefits in Illness and Maternity, the monthly maternity benefit amounts to 100% of the assessment basis of the benefit, i.e. the average monthly salary paid over 12 calendar months preceding leave. It is paid during the whole duration of maternity leave. There is no qualifying period to be entitled to this maternity benefit. The Committee considers that the situation previously found to be in conformity remains so, but asks whether the same regime applies to women employed in the public sector. Pending receipt of the information requested, the Committee concludes that the situation in Poland is in conformity with Article 8 1 of the 1961 Charter. Article 8 - Right of employed women to protection Paragraph 2 - Illegality of dismissal during maternity leave Prohibition of dismissal According to Article 177 of the Labour Code an employer may not give notice or terminate the employment contract with a pregnant woman or during maternity leave. In exceptional cases, the employer may however terminate the employment contract owing to the employee's misconduct: severe breach of her duties; the commission of a criminal offence or the employee losing through her own fault the necessary certificates to carry out her work. Another exception concerns the declaration of bankruptcy or liquidation of the enterprise. In such cases, the employee concerned will continue to benefit from the same amount of maternity benefit during the whole maternity leave. This applies to women employed in the private and public sectors alike. The Committee previously found that the situation was not in conformity on the ground that, in the event of organisational, production or technical changes in the enterprise, an employer can alter the terms and conditions of the employee during the protected period and if the woman rejects this change the employment contract can be terminated. The Committee understands from the report that the termination of the employment contract of a pregnant woman in the event that she refuses changes of the terms and conditions of her employment only applies to a few and special categories of persons, those who are in general politically appointed, for example the highest positions in the Government administration and executive positions in the state administration (ministers, under secretaries of State, etc.), particular positions in local self government, directors, deputy directors in state owned enterprises, etc. There is for this reason a specific chapter of the Labour Code dealing with the situation of these persons. The Committee already noted in its last conclusion (s XVII-2) that where the appointment of such a person is revoked during maternity leave, the Labour Code provides that another employment matching the person's qualifications must be offered and her remuneration paid during the protected period. It found the situation to be in conformity with Article

9 The report states that the employment contract of a pregnant woman or a woman on maternity leave cannot be terminated in such circumstances. Should the employment of a female employee on the same post as before no longer be possible, her working conditions may be changed in her employment contract. However, if this means a reduction of her salary, she is entitled to an indemnity which will match the difference between her old and new salary until the end of her maternity leave so that she suffers no financial loss during the protected period. The Committee asks what happens if the employee does not accept the changes in the terms and conditions of her contract. Pending receipt of this information, it reserves its position on the matter. Consequences of unlawful dismissals In its last conclusion, the Committee asked whether, in all cases of unlawful dismissals, compensation at least equal to the amount of lost earnings from the date of dismissal to the date of judgment/reinstatement was payable, and whether, where reinstatement is not possible, adequate compensation that was not limited to past loss of earnings was available. The report states that in the event of a dismissal based on unjustified grounds, pregnant women and women on maternity leave, whether they have been reinstated or not, are entitled to compensation corresponding to the loss of earnings resulting from the time they were unemployed. The Committee reiterates that domestic law must not prevent courts from awarding a level of compensation that is sufficient both to deter the employer and fully compensate the victim of dismissal, and therefore any ceiling on the level of compensation that may be awarded is not in conformity with Article 8 2 (s 2005, Estonia). It notes that, in this case, compensation in cases of unlawful dismissals is limited to the loss of earnings during the time the victim was unemployed. It asks whether this upper limit covers compensation for both pecuniary and nonpecuniary damage or whether unlimited compensation for non-pecuniary damage can also be sought by the victim through other legal avenues (e.g. anti-discrimination legislation). It also asks whether both types of compensation are awarded by the same courts, and how long it takes on average for courts to award compensation. In the meantime it reserves its position on this question. The Committee asks whether the same regime applies to women employed in the public sector, in particular those with a fixed-term contract. Pending receipt of the information requested, the Commitee defers its conclusion. Article 8 - Right of employed women to protection Paragraph 3 - Time off for nursing mothers The report indicates that there have been no changes to the situation which the Committee has previously found to be in conformity. The Committee asks that the next report provide a full update of the situation, including on women employed in the public sector. The Committee concludes that the situation in Poland is in conformity with Article 8 3 of the 1961 Charter. Article 8 - Right of employed women to protection Paragraph 4 Regulation of night work Regulation of night work by women in industry 9

10 The Committee has already considered the situation of pregnant women, women who have recently given birth and breastfeeding women was in conformity with Article 8 4 of the 1961 Charter. As regards the regulation of night work in general, the Committee noted in its last conclusion that night workers must undergo a health assessment before their employment on night work and thereafter at 3 to 5 years intervals depending on the work. In reply to more specific questions of the Committee, the report indicates that (i) there is no need to seek permission from the Labour Inspectorate before employing persons on night work; (ii) working time during night cannot exceed 8 hours every 24 hours - an employee that has worked more than three hours or more than 1/4 of his or her working time during night work (i.e. from 9 pm to 7 am) is considered a night worker; (iii) there are no special rules concerning breaks during night work or rest days following periods of night work; (iv) there are no rules on transfer to day work if night work causes problems other than for pregnant women and women with a child less than 4 years old. In view of the absence of special rules acting as safeguards for women employed for night work, the Committee considers that the regulation of night work in general is insufficiently protective for women. Prohibition of the employment of women in certain dangerous, unhealthy and arduous types of work The report indicates that there have been no changes to the situation that the Committee has previously found to be in conformity. The Committee concludes that the situation in Poland is not in conformity with Article 8 4 of the 1961 Charter on the ground that the regulation of night work is insufficiently protective for women. 10

11 Article 16 - Right of the family to social, legal and economic protection As the notion of the "family" is variable according to the different definitions in domestic law, the Committee considers it necessary to know how this notion is defined with a view to verifying that it is not unduly restrictive. The Committee therefore asks that the next report indicate how the "family" is defined in domestic law. Social protection of families Housing for families The Committee has constantly interpreted the right to economic, legal and social protection of family life provided for in Article 16 as guaranteeing the right to adequate housing for families, which encompasses secure tenure supported by law (Centre on Housing Rights and Evictions (COHRE) v. Croatia, Complaint 52/2008, decision on the merits of 22 June 2010, 53). The Committee notes that in Poland, the home building programme for poor families is implemented under the Act of 8 December 2006 on financial assistance for the construction of social housing, sheltered housing, overnight accommodation centres and hostels for the homeless. This act encourages local and regional authorities and the relevant public service bodies to contribute to the development of social housing, offering the possibility, among other things, of using financial aid from the state budget to construct new buildings or renovate old ones. Local authorities may also contribute to the investments made by the Social Housing Association. The construction of social housing is also promoted through the Act of 26 October 1995 on systems to support the creation of new residential housing. Despite these measures, the report states that the number of homes, premises and places available decreased during the reference period. Households with financial problems may claim housing benefit, which has been paid by local authorities since 2004, subject to monthly income and the surface area of the home they occupy. The percentage of households being paid housing benefits decreased during the reference period, from 6% in 2005 to 4% in Average monthly benefit was PLN 147 (about 36.80) in According to the report, foreign nationals do not need to have a residence permit to be entitled to housing benefit. Under Article 16, States Parties must promote the provision of an adequate supply of housing for families, take the needs of families into account in housing policies and ensure that existing housing be of an adequate standard and size considering the composition of the family in question, and include essential services (such as heating and electricity). Furthermore, the obligation to promote and provide housing extends to ensuring enjoyment of security of tenure, which is necessary to ensure the meaningful enjoyment of family life in a stable environment. The Committee recalls that this obligation extends to ensuring protection against unlawful eviction (European Roma Rights Centre (ERRC) v. Greece, Complaint No. 15/2003, decision on the merits of 8 December 2004, 24). The effectiveness of the right to adequate housing requires its legal protection through adequate procedural safeguards. Occupiers and tenants must have access to affordable and impartial legal and non-legal remedies. Any appeal procedure must be effective (s 2003 France, Italy Slovenia and Sweden; s 2005 Lithuania and Norway; European Federation of National Organisations Working with the Homeless (FEANTSA) v. France, Complaint No 39/2006, decision on the merits of 5 December 2007, 80-81). Public authorities must also guard against the interruption of essential services such as water, electricity and telephone (s 2003, France). As to protection against unlawful eviction, States must set up procedures to limit the risk of eviction (s 2005, Lithuania, Norway, Slovenia and Sweden). The Committee recalls that in order to comply with the Charter, legal protection for persons threatened by eviction must include: an obligation to consult the parties affected in order to find alternative solutions to eviction; an obligation to fix a reasonable notice period before eviction; accessibility to legal remedies; 11

12 accessibility to legal aid; compensation in case of illegal eviction To enable it to assess whether the situation is in conformity with Article 16 of the 1961 Charter as regards access to adequate housing for the families, the Committee asks for information in the next report on all the aforementioned points. As regards access to housing for vulnerable families and Roma in particular, the Committee has held that "as a result of their history, the Roma have become a specific type of disadvantaged group and vulnerable minority. They therefore require special protection. Special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases, not only for the purpose of safeguarding the interests of the minorities themselves but to preserve cultural diversity of value to the whole community" (COHRE v. Italy, Complaint No. 58/2009, decision on the merits of 25 June 2010, 39-40). In its previous conclusion (s XVIII-1), the Committee asked for detailed information on the situation of Roma families with regard to housing. According to the report, improving Roma s living conditions is one of the priorities of the National Programme for the Roma Community in Poland ( ). One of the goals is to improve their housing and health situation. Measures have been taken to promote the construction of social housing for Roma. Between 2001 and 2009, 1800 homes were renovated, 60 buildings were constructed and about 300 homes were linked to the water supply and mains drainage networks. Most of these investments were made in Małopolska voivodship, which has the largest and poorest Roma community in Poland. According to another source 1, the housing situation of Poland s Roma community is so poor that the authorities in Małopolska have decided to halt the destruction of illegal dwellings until suitable alternative accommodation can be found for the families occupying them. The United Nations High Commissioner condemns the continuing social rejection of and discrimination against Roma, especially in the spheres of education, employment and housing 2. The Committee asks for information in the next report on the results of the National Programme for Roma for and on the housing situation of Roma throughout the country. If the next report does not provide the necessary information, there will be nothing to show that the situation in Poland is in conformity with Article 16 in this respect. Childcare facilities In its previous conclusion (s XVIII-1), the Committee asked for information on alternative forms of pre-school education and statistics on childcare facilities for children up to the age of five. According to the report, promoting pre-school education is one of the priorities of the Educational Development Strategy, the National Development Strategy, the Strategic Governance Plan and the Government s work programme. Two regulations on alternative forms of preschool education, adopted by the Minister of Education on 10 January 2008 and 27 May 2009, formed the basis for the establishment of preschool sections and education groups. These new bodies apply the standard national curriculum using staff who should have the same qualifications as nursery school staff. Since 2008, the European Social Fund has helped to set up nursery schools and other forms of preschool education in regions where childcare facilities are rare, particularly in rural areas. Under the Rural Development Programme, the Ministry of Agriculture and Rural Development also promotes the creation of new care places; a single contract was negotiated for this purpose in The Committee asks for the next report to provide up-to-date information on the results of these strategies and programmes. According to the report, there was a slight increase during the reference period in the number of children between three and six attending childcare facilities as a proportion of the total number of children of this age, although the percentage was considerably lower in rural areas. In 2008, there were 43 places available in urban areas per one thousand children up to the age of three. The Committee observes that states must ensure that affordable, good quality childcare facilities are available to its citizens (where quality is defined in terms of the number of children under the age of six covered, staff to child ratios, staff qualifications, suitability of the premises and the size of the financial contribution parents are asked to make). It therefore asks for the next report to provide up-to-date information on these points. 12

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14 Family counselling services Families must be able to consult appropriate social services, particularly when they are in difficulty. States are required in particular to set up family counselling services and services providing psychological support for children s education. The Committee asks for information in the next report on family counselling services. Participation of associations representing families To ensure that families views are catered for when family policies are framed, the authorities must consult associations representing families. The Committee notes the information contained in the report on the participation of associations in the implementation of the government's social policy. It asks that the next report contain information on the participation of associations in the development of family policies. Legal protection of families Rights and obligations of spouses In cases of irreparable deterioration in family relations, Article 16 of the Charter requires the provision of legal arrangements to settle marital conflicts and in particular conflicts pertaining to children (care and maintenance, deprivation and limitation of parental rights, custody and access to children when the family breaks up). The Committee asks for the next report to provide detailed information on the aforementioned points. Mediation services The Committee points out that states are required to set up family mediation services. It notes that in Poland mediation in civil proceedings (including family law proceedings) was introduced by an Act of 28 July 2005 revising the Code of Civil Procedure (CCP). Family mediation is conducted in relation to the reconciliation of spouses (Article 436 paragraphs 1 and 2 of the CCP), satisfying families needs, maintenance allowance, the exercise of parental authority after divorce, visiting rights and property rights (Articles 445 and 570 of the CCP). Mediation is not compulsory. It can be called for by a court or initiated by an agreement between the parties, who can also choose the mediator. Mediation is confidential. The Committee asks for information in the next report on the extent of family mediation services, whether they are free of charge, how they are distributed across the country and how effective they are. Domestic violence against women The Committee recalls that Article 16 requires that there exists protection for women, both in law (through appropriate measures and punishments for perpetrators, including restraining orders, fair compensation for the pecuniary and non-pecuniary damage sustained by victims, the possibility for victims and associations acting on their behalf to take their cases to court and special arrangements for the examination of victims in court) and in practice (through the collection and analysis of reliable data, training, particularly for police officers, and services to reduce the risk of violence and support and rehabilitate victims). The Committee takes note of the information on Poland s commitment to measures to combat domestic violence. The report states that the legal framework in this field is provided by the Act of 29 July 2005 on preventing violence in families. This Act also amended the Criminal Code, which now sets out, in Article 72, the measures to be taken and penalties to be imposed with regard to perpetrators of violence, including therapy and restraining orders. In addition, on 25 September 2006, the Council of Ministers adopted a national programme to combat violence in the family, with the aim of reducing the extent of the problem, raising public awareness about domestic violence and improving victim support. As part of this programme, an extensive three-stage campaign against domestic violence was run in 2008 and 2009 by the Ministry of Labour and Social Policy in co-operation with the National Advice Centre and the Nobody s Children Foundation. A study on the effectiveness of correctional and education programmes for perpetrators of violence showed that 40% of participants did not resort to violence again in the year after attending. The organisation of training for persons involved in combating domestic violence (such as social 14

15 workers, police officers, medical professionals, therapists, psychologists, educators, judicial staff, journalists and prevention teams) is a local government responsibility, for which state grants are available. About people attended this type of training each year between 2007 and 2009, and the cost of these courses was about PLN ( ) in 2007, PLN ( ) in 2008 and PLN ( ) in As a result of the regulation adopted on 6 July 2006 by the Ministry of Labour and Social Policy, 36 domestic violence victim support centres were operating in A bill to amend the Act on preventing violence in the family was tabled in parliament in 2009 with the aim of enhancing the efficiency of measures to combat domestic violence and improving victim support. Economic protection of families Family benefits The Committee considers that, in order to comply with Article 16, child allowances must constitute an adequate income supplement, which is the case when they represent a significant percentage of median equivalised income. According to the report, the Family Benefit Act of 28 November 2003 was amended several times between 2005 and 2009 in order to broaden the scope of family benefits. In 2009, child allowances were paid to families whose monthly income did not exceed PLN 504 ( 123) or, for families with a disabled child, PLN 583 ( 142). From 2006 onwards, the amount of child allowances varied according to the age of the child and from 1 November 2009 onwards, it was PLN 68 ( 17) for a child under the age of 5, PLN 91 ( 22) for a child between 5 and 18, and PLN 98 ( 24) for a child between 18 and 24. Families with three children or more are entitled to a supplementary allowance of PLN 80 ( 19) per month for the third and each subsequent child. The Committee also takes note of certain additional financial measures such as birth and adoption allowances, education allowances, single parent allowances, special allowances for children with disabilities, advances on maintenance payments, allowances for the care of sick children and grants for the start of the school year. According to Eurostat data for 2009, the median equivalised monthly income in Poland was Given that the monthly allowance for children under the age of five is 17, this amounts to 4.01% of this income, while that for children aged 5 to 18 amounts to 5.19% and that for those aged 18 to 24 is 5.66%. The Committee notes that child allowances have increased since it last assessed the situation regarding family benefits, but it considers that the sum of 17 (or 4.01% of median equivalised monthly income) for a child under the age of five is low. It therefore asks that the next report contain detailed information on the impact of other types of benefits and tax relief for this group of families. Meanwhile, it reserves its position on this point. Vulnerable families States' positive obligations under Article 16 include implementing means to ensure the economic protection of various categories of vulnerable families, including Roma families. The Committee asks for relevant information on the subject matter in the next report. Equal treatment of foreign nationals and stateless persons with regard to family benefits The Committee notes that under current legislation, the entitlement to family benefits of citizens from third countries is decided in accordance with bilateral social security agreements negotiated by Poland on a reciprocal basis. In its previous conclusion (s XVIII-1) the Committee found that the situation in Poland was not in conformity with Article 16 because equal treatment was not guaranteed for nationals of other States Parties to the 1961 Charter and the Charter, particularly nationals of Moldova, Turkey and Romania. According to the report, there are no plans to amend the legislation on the entitlement of nationals of third countries to family benefits. Negotiations are under way with Moldova and Ukraine and are soon to begin with Turkey on a social security agreement. There has therefore been no change in the situation since the last assessment and it is not in conformity with the 1961 Charter. 15

16 The Committee concludes that the situation in Poland is not in conformity with Article 16 of the 1961 Charter on the ground that there is no guarantee that family benefits will be paid to the nationals of certain States Parties to the 1961 Charter and the Charter. 1 Report of the European Commission against Racism and Intolerance (fourth monitoring cycle), adopted April 28,

17 Article 17 - Right of mothers and children to social and economic protection Status of the child In its previous conclusion (s XVII-2) the Committee asked whether there were procedures available for a minor to find out his/her origins in cases where there was no reason to expect integration difficulties. In this regard it notes from the report that a person may have access to the register of birth only after he or she attains majority. Protection of children from ill treatment and abuse In reply to its previous question, the Committee notes from the report that corporal punishment is prohibited in private schools through Chapter 8 of the Act of 7 September 1991 on Education System. In its previous conclusion the Committee held that the situation in Poland was not in conformity with the Charter as corporal punishment was not explicitly prohibited in the home. In this regard it notes from another source 1 that corporal punishment is now prohibited in the home. Article 2 of the Act of 6 May 2010 On the Prevention of Family Violence amends the Family Code (1964) by inserting a new article 96 which prohibits all corporal punishment in childrearing: persons exercising parental care, care or alternative care over a minor are forbidden to use corporal punishment, inflict psychological suffering and use any other forms of child humiliation. The Committee considers that these legislative amendments have brought the situation into conformity with the Charter. Children in public care In its previous conclusion the Committee asked how many children could one institution accommodate. In this respect it notes from the report that the number cannot exceed 30 in daycare centres whereas family type establishments can accommodate 4-8 children. A maximum of 10 children can participate in educational and other activities which take place in the premises of an institution. The Committee notes that in 2009 there were 2,242 children in family type institutions, 11,106 in socialisation institutions and 13,649 in 'multipurpose' institutions. The Committee recalls that under Article 17 of the Charter long-term placement of children should primarily take place in foster families and only if necessary in institutions. The Committee asks what is the proportion of children who are placed in foster care as opposed to institutions, including all types - family type, socialisation and 'multipurpose' institutions. The Committee recalls (s XV-2, Statement of Interpretation on Article 17 1, p. 29) that any restriction or limitation of parents custodial rights should be based on criteria laid down in legislation, and should not go beyond what is necessary for the protection and best interest of the child and the rehabilitation of the family. The Committee has held that it should only be possible to take a child into custody in order to be placed outside his/her home if such a measure is based on adequate and reasonable criteria laid down in legislation. The Committee asks what are the criteria for the restriction of custody or parental rights and what is the extent of such restrictions. It also asks what are the procedural safeguards to ensure that children are removed from their families only in exceptional circumstances. It further asks whether the national law provides for a possibility to lodge an appeal against a decision to restrict parental rights, to take a child into public care or to restrict the right of access of the child's closest family. Young offenders In its previous conclusion the Committee held that the situation was not in conformity with the Charter as educative measures such a placement in a correctional school could be applied to minors who merely showed signs of demoralisation. In this regard it notes from report that placement in a correctional facility was only possible (but not required) if the minor had committed an offence punishable by law, the minor was very demoralised and circumstances, and the nature of the offence, showed high degree of demoralisation, especially if other measures of education were found to be ineffective or did not give the possibility for rehabilitation of the minor. The 17

18 Committee asks how the concept 'moral depravity' is defined and what guidance exists for its use. In the meantime it reserves its position on this issue. In its previous conclusion the Committee held that the situation in Poland was not in conformity with the Charter as the maximum length of pre-trial detention of minors was excessive. In this regard it notes from the report that on 22 January 2009 the Act of 24 October 2008 came into force amending the Act on the Code of Criminal Procedure. According to this Act pre-trial detention can be extended beyond two years only in exceptional circumstances and when the crimes involved are very serious. It is only used when other precaution measures are not sufficient. The Committee recalls that the criminal procedure used against the minors must be adapted to their age. It considers that with the amendments listed above, the situation in which the young offenders can find themselves detained for two years before the court examines their case has not changed. Therefore the Committee reiterates its previous finding of non-conformity on this ground. The Committee asks what is the maximum prison sentence that can be imposed on juvenile offenders and whether they are always separated from adults both during pre-trial detention as well as while serving their sentence in prisons. The Committee also asks whether young offenders serving a sentence have a statutory right to education. In the meantime the Committee reserves its position on this issue. The Committee concludes that the situation in Poland is not in conformity with Article 17 of the 1961 Charter on the ground that the maximum length of pre-trial detention of minors is excessive. 1 Endcorporal punishment 18

19 Article 19 - Right of migrant workers and their families to protection and assistance Paragraph 1 - Assistance and information on migration Migration trends Poland has experienced substantial emigration as a result of the country's accession to the European Union (EU) in In the space of barely two to three years; two million Poles left the country, mainly to the United Kingdom and Ireland. Since the change in the economic system that began in 1989 but also as a consequence of economic globalisation, Poland has at the same time once more begun to experience growing levels of immigration. In late 2007, there were officially some legal immigrants, (although estimates speak of to illegal migrants coming to work each year in Poland). The majority of the immigrants come from Ukraine, Russia, Belarus, the countries of former Yugoslavia and Armenia, and also from Vietnam. There are also numerous nationals of west European countries, often expatriate managers and business people. Poland has also become a staging post for migrants transiting from east to west. In 1993, it signed an agreement with the Schengen Convention countries on the readmission of illegal migrants. This has resulted in an increase in the number of asylum applications, mostly from migrants sent back by western countries. This agreement encouraged it to propose similar agreements with Ukraine and Belarus (1996). Its closer links with the EU have also enabled Poland to gain international recognition and secure financial assistance to improve its border controls 1. Changes in policy and the legal framework The Aliens Act of 13 June 2003 reinforced immigration controls and, in connection with asylum law, brought Polish immigration law into line with that of the EU. The Act of 14 July 2006 regulates the entry into, residence in and departure from Poland of EU citizens and members of their family. The Act of 29 May 2008 on the protection of legal foreign nationals and members of the Diaspora marked another change. The purpose was to offer foreign nationals a more firmly established status and give them additional protection. The Act of 1 February 2009 on the employment of foreign nationals replaced the "offer of employment" with work permits, issued by the authorities at employers' request. Free services and information for migrant workers The general provisions in the Act of 13 June 2003 on information for foreign nationals wishing to enter, reside in or leave the country have been supplemented by the aforementioned Act of 14 July 2006, which lays down specific rules for EU citizens. According to the report, this enables persons wishing to come to Poland to obtain information on current rules and procedures free of charge. The information is supplied by officials of departments responsible for dealing with foreign nationals, in regional offices (voïvodies) and by the aliens' office (by telephone, correspondence or ). The report states that efforts have been made to improve the qualifications of public service staff responsible for dealing with migrant workers. A project has been launched on the training of public employment staff. The report also states that information is available in various languages Polish, English, French, Spanish, Russian, Ukrainian, Belarusian, Vietnamese, Chinese, Mongolian and Arabic. The Committee notes that Poland has joined EURES the European job mobility network. As part of this process, placement services for job seekers and advice on labour market mobility are now in place. Measures to counter misleading propaganda relating to emigration and immigration The report states that there were no changes to the law or other measures relating to misleading propaganda relating to emigration and immigration during the reference period. There have been information campaigns aimed at Polish emigrants, immigrants and employers. The Committee asks for detailed information in the next report on these campaigns and their impact on such misleading propaganda. In particular, it asks whether these campaigns promote greater acceptance of reception centres for foreign nationals among the local population. The Committee has stated that to be effective, action against misleading propaganda should include legal and practical measures to tackle racism and xenophobia and to prevent trafficking in women. Such measures, which should be aimed at the whole population, are necessary to counter 19

20 the spread of stereotypes such as immigrants supposed predisposition to crime, violence or drug abuse and disease (s XV-1, Austria). The Committee notes the information in answer to its question in the last conclusion (s XVIII-1) about raising police awareness of issues relating to the application of anti-racism and discrimination legislation. It asks for detailed information in the next report on any cases of improper behaviour and racial stereotyping by law enforcement agents and what was done in practice to penalise such conduct. Pending receipt of the information requested, the Committee concludes that the situation in Poland is in conformity with Article 19 1 of the 1961 Charter. 1 Source: Diploweb.com - la Révue géopolitique on line / August 2011 Article 19 - Right of migrant workers and their families to protection and assistance Paragraph 2 - Departure, journey and reception It notes the information on the issuing on visas and residence and work permits to migrants. It acknowledges the importance of these matters but considers that they are not, in principle, covered by Article It asks for full and up-to-date information in the next report on measures to facilitate the departure, journey and reception of migrant workers and their families. This paragraph obliges states to adopt special measures for the benefit of migrant workers, beyond those which are provided for nationals, to facilitate their departure, journey and reception. Reception must include assistance not only with regard to placement and integration in the workplace but also in overcoming problems such as short-term accommodation, illness, shortage of money and adequate health measures. Pending receipt of the information requested, the Committee defers its conclusion. Article 19 - Right of migrant workers and their families to protection and assistance Paragraph 3 - Co-operation between social services of emigration and immigration states According to the report, in Poland the co-operation required by Article 19 3 is secured at various institutional levels: local, regional, national and European. Contacts with the liaison institutions of other EU and EEA member countries have led to a growing number of exchanges. According to the report, the most frequent contacts are with the institutions of Belgium, the Netherlands, France, Germany, the Czech Republic and Norway. In the EU, there are standing arrangements to protect migrant workers' social security rights. This co-operation covers the relevant authorities and institutions of 31 countries: the 27 EU member countries plus Norway, Iceland, Liechtenstein and Switzerland. There are also bilateral social security agreements with "the former Yugoslav Republic of Macedonia", Croatia, Bosnia and Herzegovina, Serbia, Montenegro, Canada and the United States. The Committee concludes that the situation in Poland is in conformity with Article 19 3 of the 1961 Charter. 20