EUROPEAN COMMITTEE OF SOCIAL RIGHTS
COMITÉ EUROPÉEN DES DROITS SOCIAUX

DECISION
ON IMMEDIATE MEASURES
25 October 2013

European Federation of National Organisations working with the Homeless
(FEANTSA) v. the Netherlands
Complaint No. 86/2012
The European Committee of Social Rights (“the Committee”), committee of
independent experts established under Article 25 of the European Social Charter
(“the Charter”), during its 267th session,
Having regard to the request for immediate measures registered on 1 July 2013 and
submitted by the European Federation of National Organisations working with the
Homeless (“FEANTSA”) “to invite the Netherlands authorities to suspend the
operation of provisions in law and policy, such as residency, local connection and
other criteria, that render the housing first principle ineffective”, in particular, since
according to the complainant organisation, “there is a discrepancy between policy
and practice, that limits access to shelter to those in need”, and since in the opinion
of FEANTSA, “given the often local nature of the policies concerned, and the
divergence between them, this invitation should be extended to all relevant
authorities, including the municipalities responsible and their mandate holders”;
Having regard to the response of the Government of the Netherlands (“the
Government”) registered on 9 September 2013, in which the Government argues
that, in acknowledging that the situation addressed by the complaint is not
satisfactory, it is taking measures to improve the situation and, in light of these
developments, “invites the Committee to strike the complaint off the list of pending
complaints, as provided for in Rule 39 of the Committee’s Rules” since “the
conditions for upholding the complaint are no longer met”, and alternatively, “ invites
the Committee to postpone its consideration of the merits of the complaint at least
until after a follow-up review has been carried out”;

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Having regard to the decision on admissibility of the complaint adopted by the
Committee on 1 July 2013;
Having regard to the Charter and to the Rules of the Committee (“the Rules”), in
particular to Rule 36, which reads as follows:
Rule 36 – Immediate measures
1. Since the adoption of the decision on the admissibility of a collective complaint or at any
subsequent time during the proceedings before or after the adoption of the decision on the
merits the Committee may, at the request of a party, or on its own initiative, indicate to the
parties any immediate measure the adoption of which seems necessary with a view to
avoiding the risk of a serious irreparable injury and to ensuring the effective respect for the
rights recognised in the European Social Charter.
2. In case of a request of immediate measures made by a complainant organisation, the
request shall specify the reasons therefore, the possible consequences if it is not granted, and
the measures requested. A copy of the request shall forthwith be transmitted to the
respondent State. The President shall fix a date for the respondent State to make written
submissions on the request of immediate measures.
3. The Committee’s decision on immediate measures shall be accompanied by reasons and
be signed by the President, the Rapporteur and the Executive Secretary. It shall be notified to
the parties. The Committee may request information from the respondent State on the
implementation of the indicated measures.”

Having deliberated on 22, 24 and 25 October 2013;
Delivers the following decision, adopted on the latter date:
1.
The Committee underlines the exceptional character of immediate
measures, the adoption of which must appear “necessary with a view to avoiding the
risk of a serious and irreparable injury and to ensuring the effective respect for the
rights recognised in the European Social Charter” (Rule 36§1), insofar as “the aim
and purpose of the Charter, being a human rights protection instrument, is to protect
rights not merely theoretically, but also in fact” (International Commission of Jurists v.
Portugal, complaint No. 1/1999, decision on the merits of 9 September 1999, § 32).
2.
In light of Rule 36, it considers that the persons concerned by the
complaint evidently find themselves at risk of serious irreparable harm to their lives
and their integrity when excluded from the access to shelter. The Government
acknowledges this risk by referring to a report by the Trimbos Institute (The
Netherlands Institute of Mental Health and Addiction) under the title “Is shelter
accessible nationwide? Study of the local connection and nationwide access to
community shelter services” (report carried out at the request of the State Secretary
for Health, Welfare and Sport). It acknowledges that this report shows “that under the
current system, nationwide accessibility of shelter cannot be adequately guaranteed”.
3.
Assessing the information at its disposal, the Committee considers that
the requested measure of suspension of the operation of provision in law and policy
must be rejected. Nevertheless, in the Committee’s view, the Government is also
aware of the problematic situation at stake, as illustrated by different parts of its
submissions made in response to the request for immediate measures, in which it

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states: “there is room for improvement at various levels, (…) making explicit
agreements between municipalities and institutions providing shelter, and providing
better instructions for staff”; “According to the State Secretary, municipalities are
apparently failing in practice to fulfill their statutory obligation to make community
shelter accessible nationwide to anyone who needs it. […M]unicipalities should be
ensuring that those entitled to shelter have access to it, even if they have no ties to a
given region”; “if necessary, the State Secretary will also facilitate guidelines for
institutions that provide shelter, and he will encourage shelters and municipalities to
clarify the agreements in place with regard to the local connection”; “in the present
case, the Government acknowledges that the situation addressed by the complaint is
less than satisfactory and, in addition, is taking measures to improve the situation”.
The Committee notes this to mean that, under the margin of appreciation concerning
immigration policy, as well as under the domestic legal standards, it is possible to
find solutions in order to ensure access to shelter.
4.
Under these conditions, even when taking into account the
developments highlighted by the Government, the Committee cannot accept the
invitation to strike the complaint off the list of pending complaints (Rule 39 of the
Committee’s Rules) nor “to postpone its consideration of the merits of the complaint
at least until after a follow-up review has been carried out”. In this context, the
Committee considers necessary to indicate immediate measures.
5.

For these reasons, the Committee,

INVITES THE RESPONDENT GOVERNMENT TO TAKE THE IMMEDIATE
MEASURES INDICATED BELOW:
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Adopt all possible measures with a view to avoiding serious, irreparable injury to
the integrity of persons at immediate risk of destitution, through the
implementation of a co-ordinated approach at national and municipal levels with a
view to ensuring that their basic needs (shelter) are met; and

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Ensure that all the relevant public authorities are made aware of this decision.

Requests the Executive Secretary to notify the complainant organisation and the
Respondent State of the present decision, and to publish the decision on the Internet
site of the Council of Europe.

Lauri LEPPIK
Rapporteur

Luis JIMENA QUESADA
President

Régis BRILLAT
Executive Secretary