ERRC amicus curiae brief in U.K. Gypsy housing case

11 July 2000

On May 24, 2000, the European Court of Human Rights heard the cases of Sally Chapman v. UK, Thomas and Jessica Coster v. UK, John and Catherine Beard v. UK, Jane Smith v. UK, and Thomas Lee v. UK, all cases pertaining to the rights of Gypsies in Britain to home, freedom from discrimination in the use of their own land and the right to live according to a traditional way-of-life, as members of an ethnic minority.1 The ERRC filed an amicus curiae brief in connection with the cases. The ERRC's interest in the cases is twofold. First, the cases are of great significance to the general position of Roma in the European Convention's scheme of rights protection, and in particular to the way in which Articles 8 and 14 are interpreted in their application to Roma. Second, the cases raise the question which the OSCE High Commissioner has recently considered in the context of the UK, namely whether such an approach to the provision of sites for nomadic or semi-nomadic Roma is compatible with basic norms of human rights and non-discrimination. Provisions for nomadic and semi-nomadic Roma are salient primarily in western Europe where, in comparison with the former Communist Block, Roma have never been forcibly settled on a programmatic basis. In the UK, however, recent legislative and policy changes - in particular the 1994 Criminal Justice and Public Order Act - have increasingly forced Gypsies to choose between assimilation and criminalization. Decisions in the cases are expected in early Autumn 2000.

Facts in the case of Sally Chapman v. UK

The circumstances of the case of Sally Chapman and her family record an all too common history of insecurity, serious disruption of children's education, harassment, ill-health (including premature deaths) and officials breaking promises. Ms Sally Chapman is a British citizen born in 1954. She is a Gypsy by birth. She has travelled constantly all her life with her family, mainly in the Hertfordshire area, in search of work. When she married, she and her husband continued to live in caravans. They have four children. Ms Chapman and her husband used to stop for as long as possible on temporary or unofficial sites while he found work as a landscape gardener. They stayed for several years on an unofficial site in St Albans. They travelled for some years in the Watford area. They were on the waiting list for a permanent site but were never offered a place. They were constantly moved from place to place by the police and representatives of local authorities. Their children's education was constantly interrupted because they had to move about.

Immediately prior to her ultimate purchase of a piece of land, she and her family had been on an unofficial site elsewhere in Hertfordshire. She was evicted from it on a bitterly cold winter day when there was snow on the road. When they placed their caravan on the nearest grass verge, the police immediately told them to leave. People pelted them with eggs. They had to move to a location that was ankle-deep in mud. A Three Rivers district council official affixed notices to their caravan requiring them to move. When they told him that they had nowhere else to go to, he said that this was not his problem. Ms Chapman and her family sought help from Hertfordshire county council, but were told that there were no vacancies on any of their sites.

In the absence of an official Gypsy site, Ms Chapman had no alternative but to buy her own site, which she did in 1985. She and her family moved onto the land and applied for planning permission. The district council refused the application for planning permission on September 11, 1986, and served enforcement notices. Appeals were lodged against the enforcement notices. In July 1987, a public enquiry was held by an inspector appointed by the department of the environment. He dismissed the appeal and upheld the decision of the council as the land was in the metropolitan green belt and he considered that the national and local planning policies should override the needs of the appellant. Since there was no official Gypsy site in the Three Rivers district, the family was given fifteen months to vacate their land, the reason being that by that time the council had stated that a suitable location was being sought for them, and they would be able to move to a new official site within a year.

By the expiry of the fifteen months, no official site had been provided, and the family remained on the site since they had nowhere else to go. Ms Chapman and her family applied for planning permission for a bungalow as it had been stated at the enquiry that this would be a more appropriate use of the land than a mobile home. Planning permission was refused and the council's decision was upheld at a further local enquiry. The family remained on the site and the council served summonses on the applicant and her husband for failure to comply with an enforcement notice. They were both fined 700 English pounds (approximately 1,100 euros) in a magistrates' court. To avoid further court action, the family returned to a nomadic life in July 1991 and were constantly moved from place to place by council officials. The applicant's eldest daughter had started a hairdressing course at a college of further education, and the second daughter was about to start studying at college for a diploma in Forestry. Both of these courses had to be abandoned, and the two younger children could no longer attend school.

During this period, Ms Chapman made a further planning application for a bungalow on her land. Again her application was refused and failed at an enquiry. In August 1992, Ms Chapman and her family returned to their land in a caravan. Enforcement notices were issued by the council on March 11, 1993. Ms Chapman appealed against them and there was a planning enquiry on November 2, 1993.

By a decision letter of March 18, 1994, the inspector dismissed the appeal on the grounds that such development was inappropriate in the green belt area. He also considered that the stationing of a residential caravan on the site would detract from the rural character and appearance of the site and would be likely to encourage similar schemes. He referred to the applicant's submissions that the county council was under a direction from the Secretary of State under section 9 of the Caravan Sites Act 1968 to provide for further accommodation for Gypsies in the county, but noted that the county council was unable to confirm progress in providing a fifteen pitch site at Langlebury. He further noted that the council did not refute the applicant's submission as to the lack of sites in the area, but did not find it of sufficient weight to overturn, in the absence of very special circumstances, the cogent planning argument against inappropriate development in the green belt. As regarded the enforcement of the decision however, he granted the applicant fifteen months to vacate the site since there was still no official Gypsy site in the area. He noted the comments of the Inspector of the 1987 appeal with regard to the lack of sites and commented that the applicant had no better prospect of obtaining another pitch than she had had in 1987.

Summary of the main arguments in the Chapman case

In Chapman, the applicant claimed that her rights under Article 8 of the European Convention of Human Rights are being interfered with. She complained of being prevented, first of all, from living with her family in a caravan on her own land and secondly, from pursuing the traditional Gypsy lifestyle and culture. She submitted that, due to planning regulations and the shortage of sites built for Gypsies, she had no option but to buy her own land. However, she has been denied the right to live on her own land, in a caravan or a bungalow, by both the local authority and the Secretary of State for the Environment. The consequences of their decision are severe for the applicant and her family. If they continue to remain on the land, they face criminal prosecution and forcible eviction. However, there is no official Gypsy caravan site in the Three Rivers district.

Ms Chapman invoked Article 14 of Convention in support of the claim she is being discriminated against on the grounds of race, national or social origin, association with a national minority and birth or other status. She notes that there is widespread discrimination in Britain, caused by popular prejudice against Gypsies, and that there is a failure by local and national government to counter this prejudice.

Ms Chapman additionally alleged that her rights under Article 6, paragraph 1 of the Convention had been violated because no appeal before a court of law was possible against the decision to uphold the enforcement proceedings taken by Three Rivers District Council and to refuse her planning permission. Finally, she invoked Article 1 of Protocol No. 1 of the European Convention, noting that her right to enjoy her possessions freely was being denied because she was unable to live peacefully with her family on her own land.

ERRC intervention

On May 22, 2000, the ERRC filed an amicus curiae brief with the European Court of Human Rights in Strasbourg, in connection with the Chapman case and the four related cases to be heard by the Court. The ERRC's interest in filing the brief was its concerns with respect to interpreting Articles 8 and 14 of the European Convention, both crucial to the work the ERRC undertakes. The text of the ERRC's submission in Chapman et al. follows:

Written comments

Pursuant to Article 36 (2) of the European Convention on Human Rights and Rule 61 (3) of the Rules of Court, with respect to the following applications:

• Application No. 27238/95 (Sally Chapman v. UK)
• Application No. 24876/94 (Thomas and Jessica Coster v. UK)
• Application No. 24882/94 (John and Catherine Beard v. UK)
• Application No. 25154/94 (Jane Smith v. UK)
• Application No. 25289/94 (Thomas Lee v. UK)

The purpose of these written comments

1. The ERRC submits these Written Comments for consideration by the Court in the above cases for the following reasons:

1. to bring to the Court's attention the important and very recently published Report on the Situation of Roma and Sinti in the OSCE Area, prepared by the OSCE High Commissioner on National Minorities, and in particular the parts most relevant to these cases;
2. to place that Report in the context of other international standards and recent international initiatives; and
3. to comment on the significance of recent international instruments for the Court's decision of these cases.

I. The OSCE High Commissioner's report on the situation of Roma and Sinti in the OSCE area

2. The recent Report of the OSCE High Commissioner on National Minorities is a response to what the High Commissioner describes in his Foreword as "the persistent plight of the Roma and Sinti." Since the High Commissioner's last report on Roma in the CSCE region was issued in September 1993, improvements could be observed in the situation of many groups in Europe, but Roma and Sinti were generally left outside the scope and beyond the reach of progressive developments. They were "often the worst off of all groups", and the High Commissioner therefore felt that their situation merited fuller study and analysis than in the past, by examining specific issues and certain cases in some detail, with a view to making recommendations for practical and effective action in overcoming particular aspects of the general problem.

3. One of the principal areas of concern identified by this study is that of general living conditions, including, in particular, access to housing. For nomadic or semi-nomadic Roma, this includes access to sites, both permanent and temporary, on which they can camp. In this part of the Report, the study examines in detail the position in the United Kingdom as exemplifying the problem that exists in this area.

4. The High Commissioner's Report also emphasises the positive duty on States to bring about equality for Roma at all levels of society. "It falls to State authorities to ensure that Roma enjoy the fundamental right to equality, both in law and in fact, irrespective of the division of jurisdiction within the State." Commitment to the principle of equality for Roma also means that States must be prepared to take particular measures in order to bring such equality about: "While the principle of equality requires protection against discrimination, it also entails proactive policies and special measures to ensure equality of opportunity. This is especially relevant for Roma, who have been excluded from opportunities and otherwise disadvantaged for so long -indeed, for generations."

5. Part IV of the Report deals with the living conditions of Roma in the OSCE region.² After setting out the relevant international standards (see further below), Part IV.B of the Report deals specifically with housing. The Report expressly recognises the link between adequate housing for Roma and the expression of their cultural identity:³

"It must be emphasised that whether an individual is nomadic, semi-nomadic or sedentary should, like other aspects of his or her ethnic identity, be solely a matter of personal choice. The policies of some OSCE participating States have at times breached this principle, either by making a determination of a group's fundamental lifestyle that is inconsistent with its members' choices or by making it virtually impossible for individuals to pursue the lifestyle that expresses their group identity."

6. The most important part of the High Commissioner's Report for the cases before the Court is Part IV.B.2, which deals with the adequacy of halting sites for nomadic and semi-nomadic Roma.⁴ The Report notes that for those Roma who maintain a traditional nomadic or semi-nomadic lifestyle, the availability of legal and suitable parking sites is a paramount need - indeed, it is "a precondition to the maintenance of their group identity." It notes that many Western European countries where the incidence of nomadism is comparatively high have regulations encouraging or requiring relevant authorities to maintain camping sites, but that typically, even in such countries, the number and size of available sites is insufficient in light of the need.

"The effect is to place nomadic Roma in the position of breaking the law - in some countries, committing a crime - if they park in an unauthorized location, even though authorized sites may not be available."⁵

7. Often, too, the Report notes, sanitation and other basic facilities provided on public sites are inadequate. The problem goes beyond basic housing concerns, since the lack of legal parking sites typically entails an interlocking set of social and civil problems. Gypsies who cannot find lawful halting sites are, for example, hard-pressed to keep their children in school.

8. Significantly, the Report goes on to examine in depth the legal framework and practice concerning caravan sites in the United Kingdom, which in the High Commissioner's view exemplifies the problems that recur in a number of Western European countries. After describing the historical development of the legal framework concerning halting sites in the UK, the Report notes:⁶

"Under current law, Gypsies have three options for lawful camping: parking on public caravan sites - which the Government acknowledges to be insufficient; parking on occupied land with the consent of the occupier; and parking on property owned by the campers themselves. The British Government has issued guidance to local authorities aimed at encouraging the last approach. In practice, however, and notwithstanding official recognition of their special situation and needs, many Gypsies have encountered formidable obstacles to obtaining the requisite permission to park their caravans on their own property."

9. The Report also notes that the discretion which is inherent in the planning regime "has repeatedly been exercised to the detriment of Gypsies. A 1986 report published by the Department of the Environment described the prospects of applying for planning permission for a Gypsy site as 'a daunting one laced with many opportunities for failure.' In 1991, the last year in which the success of application rates was evaluated, it was ascertained that 90 per cent of applications by Gypsies for planning permission were denied. In contrast, 80 per cent of all planning applications were granted during the same period. It is to be noted that, as a category, Gypsy planning applications are relatively unique insofar as they typically request permission to park caravans in areas or sites which are subject to restriction by local planning authorities. As such, virtually all Gypsy planning applications are highly contentious. Nonetheless, the fact remains that there is inadequate provision or availability of authorized halting sites (private or public), which the high rate of denial of planning permission only exacerbates. Moreover, there are indications that the situation has deteriorated since 1994."

10. The High Commissioner's consideration of the position in the UK concludes with the observation that,⁷

"In the face of these difficulties, the itinerant lifestyle which has typified the Gypsies is under threat."

11. As a result of this and other housing quandaries, the Report concludes, many Roma live in conditions that are not legally sanctioned. It recommends:⁸

"In view of the extreme insecurity many Roma now experience in respect of housing, governments should endeavour to regularize the legal status of Roma who now live in circumstances of unsettled legality."

II. Other international standards and initiatives

12. As the OSCE High Commissioner's Report notes, the situation of the Roma engages a number of the core norms of international law. In addition, "the past decade has seen increasing efforts on behalf of Roma by regional and international bodies".⁹ The growing number of CSCE/OSCE commitments and initiatives relating to Roma are summarised in the High Commissioner's Report.¹⁰ However, these are part of a much wider body of accepted international standards and other international initiatives which ERRC considers it is important for the Court to be aware of in deciding these important cases.

13. This part of these Written Comments sets out some of the most important of these other international standards and initiatives.

■ United Nations

a) The Universal Declaration of Human Rights

14. Article 25(1) of the Universal Declaration of Human Rights ("the UDHR") provides, in part:

"Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including ... housing".

15. Article 2 UDHR provides, in part:

"Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, ... national or social origin, property, birth or other status."

b) The International Covenant on Civil and Political Rights

16. Article 26 of the International Covenant on Civil and Political Rights ("the ICCPR") provides:

"All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

17. Article 27 provides:

"In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language."

18. The Human Rights Committee's General Comments on these Articles make clear that both involve positive duties on the State, and that equality does not simply mean equal treatment in the sense of being treated the same. Positive measures may be required in order to achieve effective equality, and to protect a minority's identity and way of life, together with the maintenance and development of its culture.

c) The International Covenant on Economic, Social and Cultural Rights

19. The International Covenant on Economic, Social and Cultural Rights ("the ICESCR") contains a right to adequate housing. Article 11(1) provides:

"The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate ... housing, and to the continuous improvement of living conditions."

20. By Article 2(2), States Parties undertake to guarantee that the rights enunciated in the Covenant will be exercised without discrimination of any kind as to (inter alia) race, colour, national or social origin, property, birth or other status.

21. The UN Committee on Economic, Social and Cultural Rights, which monitors compliance with the ICESCR, has made clear, in its General Comment No. 4, that the concept of "adequacy in the right to adequate housing means "the right to live somewhere in security, peace and dignity."¹¹ This entails, inter alia, "a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats."¹² The Committee has also emphasised that "instances of forced eviction are prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law."¹³

22. In its General Comment No. 7, concerning forced evictions, the Committee commented that while not all involuntary evictions violate the Covenant, they generally are incompatible with the right to adequate housing when individuals are removed against their will from the homes they occupy "without the provision of, and access to, appropriate forms of legal or other protection."¹⁴ Evictions "should not result in individuals being rendered homeless or vulnerable to the violation of other human rights. Where those affected are unable to provide for themselves, the State Party must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be, is available."¹⁵

d) The Convention on the Elimination of Racial Discrimination

23. Article 5 of the Convention on the Elimination of Racial Discrimination ("CERD") provides, in part:

"States Parties undertake to prohibit and eliminate racial discrimination and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of ... (e)(iii) the right to housing".

■ Council of Europe

24. The Council of Europe has recently undertaken a range of initiatives in the area of Roma rights, with several resolutions and recommendations specifically concerning Gypsies. Recommendation 1203 (1993) of the Parliamentary Assembly on Gypsies in Europe, for example, makes a number of specific recommendations in the context of a general recognition that Gypsies, as one of the very few non-territorial minorities in Europe, "need special protection". In the General Observations preceding the recommendations, the Parliamentary Assembly observes:

6. Respect for the rights of Gypsies, individual, fundamental and human rights and their rights as a minority, is essential to improve their situation.

7. Guarantees for equal rights, equal chances, equal treatment, and measures to improve their situation will make a revival of Gypsy language and culture possible, thus enriching the European cultural diversity.

8. The guarantee of the enjoyment of the rights and freedoms set forth in Article 14 of the European Convention Rights is important for Gypsies as it enables them to maintain their individual rights.

25. The recommendations made by the Parliamentary Assembly included:

"In the field of equal rights

xiii. the provisions of any additional protocol or convention relating to minorities should apply to non-territorial minorities;

xiv. member states should alter national legislation and regulations that discriminate directly or indirectly against Gypsies;

Everyday life

xviii. further programmes should be set up in the member states to improve the housing situation ... of those Gypsies who are living in less favourable circumstances."

26. In 1994 the Secretary General of the Council of Europe nominated a Co-ordinator of Council of Europe Activities on Roma/Gypsies. The Council of Europe also has a Specialist Group on Roma/Gypsies (MG-S-ROM).

27. In 1998 the European Commission against Racism and Intolerance issued General Policy Recommendation No. 3: Combating Racism and Intolerance against Roma/Gypsies.¹⁶

28. Its recommendations to the Governments of Member States include the following:

"to ensure that discrimination as such, as well as discriminatory practices, are combated through adequate legislation and to introduce into civil law specific provisions to this end, particularly in the fields of ... housing";

to ensure that the questions relating to 'travelling' within a country, in particular regulations concerning residence and town planning, are solved in a way which does not hinder the way of life of the persons concerned."

29. Probably the most significant Council of Europe measure, however, is the Framework Convention for the Protection of National Minorities. The relevant parts of this are set out in the Applicants' Memorial. ERRC agrees with the arguments of the Applicants about the significance of its provisions for the way in which the Court should decide these cases.

■ European Union

30. The institutions of the European Union have also made increasing efforts in recent years to improve the situation of Roma in Europe. On 21 April 1994 the European Parliament passed a Resolution on the situation of Gypsies in the Community, calling on the governments of Member States "to introduce legal, administrative and social measures to improve the social situation of Gypsies and Travelling People in Europe", and recommending that "the Commission, the Council and the governments of the Member States should do everything in their power to assist in the economic, social and political integration of Gypsies, with the objective of eliminating the deprivation and poverty in which the great majority of Europe's Gypsy population still lives at the present time."

31. As the OSCE High Commissioner's Report points out,¹⁷ the protection of minorities is a precondition to European Union accession. In 1993 the European Council in Copenhagen agreed a set of political criteria for accession to the EU - "the Copenhagen Criteria" - requiring respect for and protection of minorities as a condition of membership of the Union.

32. In July 1997, the Commission submitted Opinions on the application for membership of the Union for each of the ten candidate countries. These also spell out how each country fulfills the criteria, including the protection of minorities and, where relevant, the Roma.

33. On 31 March 1998, Accession Partnerships were presented to the ten applicant countries, designed to help prepare the Central European applicant countries to meet fully the membership criteria. The Accession Partnerships with Bulgaria, the Czech Republic, Hungary and Romania ask to further the integration of Roma as a medium-term priority.

34. In November 1999, the EU adopted "Guiding Principles" for improving the situation of Roma in candidate countries. The Guiding Principles are based expressly on recommendations of the Council of Europe's Specialist Group of Roma/Gypsies and the OSCE High Commissioner's recommendations (which were published in draft in October 1999).

35. The EU has also given financial and other support to the Roma, mainly through its Phare and Tacis Democracy Programme.

36. The European Monitoring Centre on Racism and Xenophobia, estalished in 1997 during the European Year against Racism, also focuses, inter alia, on the situation of the Roma.

37. The new Article 13 of the Amsterdam Treaty now provides the legal basis for taking appropriate action to combat discrimination based on, inter alia, racial or ethnic origin.

38. On 7 April 2000, the European Commission issued a statement welcoming International Roma Day (8 April 2000), calling on "all partners in the international community to join in enhancing support for the Roma throughout Europe, to ensure that Roma can play the rightful role in society free from discrimination and racial prejudice."

III. Comment on significance of the international dimension

39. ERRC considers it of the utmost importance to put before the Court this information about the complementary work which is being done in relation to the Roma by various international bodies, and to place it in the wider context of well established international law standards. As the OSCE High Commissioner's Report makes clear, there has emerged in recent years a growing consensus amongst international organisations about the need to take specific measures to address the position of Roma in relation to a number of issues, including their accommodation and general living conditions.

40. ERRC invites the Court to locate its decision of these important cases in this wider international context. Applying its own well-established approach of evolutive interpretation, in which it treats the Convention as a living instrument capable of development over time, the Court should interpret Articles 8 and 14 of the Convention in the light of this clear international consensus about the plight of the Roma and the need for urgent action. The Court should not only seek to interpret the Convention in the light of other applicable international law such as the Minorities Convention, in accordance with the basic principle of treaty interpretation contained in Article 31(3)(c) of the Vienna Convention. It should also ensure that its interpretive approach is appropriately informed by the range of other international developments and trends.

41. In particular, it should ensure that the clear international consensus which is emerging about the meaning of non-discrimination norms in this context should not only inform its interpretation of Article 14 of the Convention, but should also infuse its interpretation of Article 8.

Endnotes:

1. The cases strongly resemble the earlier case of Buckley v. UK, the 1996 landmark first ruling by the Strasbourg Court in a Romani case (see European Court of Human Rights, Buckley v. the United Kingdom judgment of 25 September 1996, Reports 1996-IV, No.16, p.1271). On the implications of the Buckley case for Roma rights, see "Legal Defence", Roma Rights, Fall 1996, available on the ERRC internet website at http://www.errc.org.
2. pp.95-127
3. p.99
4. pp.108-114.
5. p.109.
6. pp.112-113.
7. p.114.
8. pp.126 and 162.
9. p.7.
10. pp.7-10 and 165-168.
11. Committee on Economic, Social and Cultural Rights, General Comment No. 4: The right to adequate housing, UN Doc. E/1992/23, para. 7.
12. Ibid. at para. 8(a).
13. Ibid. at para. 18.
14. Committee on Economic, Social and Cultural Rights, General Comment No. 7: The right to adequate housing (Article 11.1 of the Covenant): forced evictions, 1997, para. 4 (cited in the OSCE High Commissioner's Report at pp.114-115).
15. Ibid., at para. 17.
16. Set out in the OSCE High Commissioner's Report, pp.172-175.
17. p.7.