- 20 -
32.
It however recalls that the Appendix to the Charter states that:
“1. Without prejudice to Article 12, paragraph 4, and Article 13, paragraph 4, the persons covered
by Articles 1 to 17 and 20 to 31 include foreigners only in so far as they are nationals of other
Parties lawfully resident or working regularly within the territory of the Party concerned, subject to
the understanding that these articles are to be interpreted in the light of the provisions of
Articles 18 and 19.”
33.
The Committee follows the same reasoning as in its decision in the complaint on
Centre on Housing Rights and Evictions (COHRE) v. Italy (Complaint No. 58/2009,
decision on the merits of 25 June 2010, §33) and notes that it is extremely complex, in
the circumstances of the present complaint, to distinguish to whom the protection
guaranteed by the Charter and its Appendix applies without restrictions. The Committee
considers that the lack of identification possibilities should not lead to depriving persons
fully protected by the Charter of their rights under it. The Committee notes that the
Government does not raise any argument on the scope of the complaint in the light of
the Appendix to the Charter.
34.
The Committee also reiterates that those who do not fall within the definition in
the Appendix cannot be deprived of their rights linked to life and dignity under the
Charter (International Federation of Human Rights Leagues, FIDH v. France, Complaint
No. 14/2003, decision on the merits of 8 September 2004, § 32; Defence for Children
International (DCI) v. the Netherlands, Complaint No. 47/2008, decision on the merits of
20 October 2009, §37, and Centre on Housing Rights and Evictions (COHRE) v. Italy,
Complaint No. 58/2009, decision on the merits of 25 June 2010, §33). In fact, it
reiterates that the restriction in paragraph 1 of the Appendix attaches to a wide variety of
social rights and impacts on them differently and that such a restriction should not end
up having unreasonably detrimental effects where the protection of vulnerable groups of
persons is at stake (Defence for Children International (DCI) v. the Netherlands,
Complaint No. 47/2008, decision on the merits of 20 October 2009, §37).
35.
The Committee also recalls that special attention is to be given to the specific
situation of children (Defence for Children International (DCI) v. the Netherlands,
Complaint No. 47/2008, decision on the merits of 20 October 2009, §§23-29).
Prohibition of discrimination (Article E)
36.
The Committee recalls that Article E not only prohibits direct discrimination but
also all forms of indirect discrimination. It also recalls that discrimination may arise either
in situations where people in the same situation are treated differently or where people
in different situations are treated identically. Discrimination may also arise by failing to
take due and positive account of all relevant differences or by failing to take adequate
steps to ensure that the rights and collective advantages that are open to all are
genuinely accessible by and to all (Centre on Housing Rights and Evictions (COHRE) v.
Italy, Complaint No. 58/2009, decision on the merits of 25 June 2010, §35).