Aydarov and others v Bulgaria (third-party intervention, 2018)

10 October 2016

Facts

The applicants (that is, the people who complained to the European Court) were members of two families living in a neighbourhood established in the 1960s and where only Roma were living. All of the homes in the area were built informally (i.e. without permission), and in 2011 the authorities issued orders to demolish them. As of 2015, the applicants’ homes had still not been demolished. In that year, non-Roma living nearby starting making racially-charged complaints about the neighbourhood to the authorities. In response, the authorities started taking steps to carry out the demolitions. The applicants took legal proceedings to stop their homes from being demolished, but to no avail. While the case was going on, one of the family’s homes was destroyed, leaving the family homeless.

The ERRC’s Third-Party Intervention

We were not involved in bringing the case before the European Court of Human Rights or the proceedings before the courts in Bulgaria. When the European Court made the case public on its website, we asked the Court for permission to intervene as a third party. Third-party interveners make written submissions to help the European Court decide the case. The European Court accepted our request and on 4 October 2016 we sent our written submissions to the Court.

We made two points. 

The first was that there is a crisis of forced evictions of Roma in Europe, linked to residential exclusion and segregation of Roma, and symptomatic of widespread antigypsyism. We set out the evidence concerning the dramatic extent of Romani poverty in Europe, including data showing that the vast majority of Roma in Eastern Europe live in deep poverty. We wanted to make clear that the fact that many Roma live in informal housing, leaving them vulnerable to forced evictions, is not a “natural” or merely unfortunate phenomenon, but one of the clearest manifestations of antigypsyism in Europe today. This situation was the product of accumulated generations of exclusion promoted or, at best, ignored and left to fester by officials. The threat of forced eviction was the most visible of a series of tools that authorities used to intimidate and control Romani populations, alongside the threat of taking Romani children into care, the segregation of Romani children into separate, inferior schools or classes, police brutality and intimidation, and restrictions on access to social assistance. We urged the European Court to view and describe the current practice of forced evictions of Roma as a manifestation of antigypsyism.

Our second point was that the European Court should adopt a specific approach when assessing claims of race discrimination in the context of forced evictions. We proposed three principles, which we said emerged from the European Court’s case law and anti-discrimination law in Europe more generally: 

• when a particular eviction only affects Roma, the burden is on the State to show that the eviction does not amount to racial harassment; 
• when a particular eviction only affects Roma, the notion of indirect discrimination is automatically applicable and the burden of proof shifts to the Respondent Government; and 
• discriminatory statements by anyone connected to the eviction (particularly public officials and nearby residents) are evidence of harassment and direct discrimination.

The Court’s Ruling

A seven-judge chamber of the European Court of Human Rights unanimously declared the complaints inadmissible in a decision made on 2 October 2018. 

Part of the applicants’ complaint was that if the demolition of their homes were carried out, it would violate their right to respect for private life, family life, and home (Article 8 of the European Convention on Human Rights), their right to property (Article 1 of Protocol no.1), and their right to an effective remedy (Article 13, taken with those other articles). The Court ruled that these complaints were inadmissible because they were out of time. There is a deadline of six months in which to make complaints to the European Court, after all domestic remedies have been exhausted. The Court found that the complaints should have been submitted years earlier, following the demolition orders made in 2011, once it became obvious that the national courts in Bulgaria were not going to remedy the situation.

The applicants had also complained that the demolitions would be discriminatory (Article 14 of the European Convention on Human Rights, taken with the other provisions mentioned above). The Court found that these complaints were inadmissible because the applicants had not exhausted domestic remedies. Before going to the European Court, the applicants should have made discrimination claims, either to the national Commission for Protection Against Discrimination or to the national courts.

The applicants had also complained that the forced eviction of one of the families, which happened during the course of the proceedings, violated their right to be free from inhuman and degrading treatment (Article 3 of the European Convention on Human Rights). The Court rejected this complaint as having been brought out of time. This was because the applicants did not raise this complaint within six months of the eviction taking place; instead, they raised it in submissions to the Court made over a year after the eviction.

The European Court’s decision declaring the case inadmissible can be found here.

The ERRC’s third-party intervention can be found here.

The European Court’s statement of facts in the case can be found here.