Caldarar and others v Poland (third-party intervention, pending)
06 February 2018
Facts
The applicants are Romani families who, from 2009, started living on land where no construction was allowed. The land was owned by the city. They built homes on the land. The District Inspector of Construction Supervision visited the site in February 2015 and in May 2015 issued decisions ordering the city to demolish the structures. The decision was addressed to the authorities – not to the applicants. The city appealed the decision, but subsequently withdrew its appeal and demolished the applicants’ homes in July 2015. The applicants say they were not aware of the demolition plans and were not at home when the demolition took place. They were hardly able to retrieve any of their belongings after the demolition took place.
The ERRC’s Third-Party Intervention
The ERRC said that the time had come for the Court to use the term “antigypsyism” to describe the specific forms of discrimination that Roma face, citing, in particular, the use of the term in the recent recommendation of the Committee of Ministers of the Council of Europe to the member States on improving access to justice for Roma and Travellers (CM/Rec(2017)10). The ERRC explained how as a result of historical and ongoing antigypsyism, Roma are poor and socially excluded. The ERRC provided data about poverty and the housing situation of Roma across Europe and about the close relationship between this situation and discrimination against Roma. Instead of being viewed as the product of a long history of exclusion, the housing conditions of Roma were instead, in keeping with stereotypes common to antigypsyism, commonly taken as “evidence” of a culture or lifestyle that is incompatible with that of the majority population. This stereotype must be named and contested. See Judge Motoc’s concurring opinion in Carvalho Pinto de Sousa Morais v Portugal (2017), §§ 12-19. The ERRC went on to describe the crisis of forced evictions of Roma in Europe, providing data from Albania, France, Hungary, Italy, the former Yugoslav Republic of Macedonia, Romania, Slovakia, and Serbia. The ERRC urged the Court to view and describe the widespread forced evictions of Roma in Europe as a manifestation of antigypsyism and a form of intimidation and population control of Romani people. Failing to see forced evictions of Roma as a manifestation of antigypsyism would risk seeing these events through the eyes of discriminators, who blame the Romani people they are evicting and ignore the circumstances that have left Roma vulnerable to eviction. The ERRC noted the importance of addressing forced eviction of Roma under Article 14 of the Convention, and not treating such events on an equal footing with other evictions. The ERRC proposed that the following principles should apply when examining complaints about forced evictions of Roma under Article 14 taken with Article 8 of the Convention: the Court must determine whether forced evictions of Roma amount to racial harassment, that is, unwanted conduct related to racial or ethnic origin that takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment; when a particular eviction only affects Roma, the notion of indirect discrimination is automatically applicable and the burden of proof shifts to the Respondent State; and discriminatory statements by anyone connected to the eviction (particularly State officials and nearby residents) are evidence of harassment and direct discrimination. The ERRC also submitted that the following principles, if made explicit in the Court’s case law, would solidify the convergence between existing case-law on Article 8 and the relevant international standards: people facing eviction must have access to remedies with automatic suspensive effect; the decision process leading to the eviction must meet certain minimum criteria; and the nationality and residence status of those being evicted is irrelevant.
The Court’s statement of facts can be found here.
The ERRC’s third-party intervention can be found here.
