Housing Rights Litigation

28 May 2004

Alan Anstead¹

Housing remains an issue of major importance to Roma: for example, grossly inadequate standard of housing, hazardous living conditions, segregated settlements, forced evictions. Protection of housing rights by the State is guaranteed by a number of international legally binding norms. The UN International Covenant on Economic, Social and Cultural Rights safeguards "the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions".² The UN International Convention on the Elimination of Racial Discrimination emphasises that "State parties undertake to prohibit and eliminate racial discrimination…in the enjoyment of …right to housing".³ The European Convention on Human Rights states that "Everyone has the right to respect for his private and family life, his home and his correspondence".⁴ The detailed standards by which States should implement these legally-binding instruments are contained within General Comments No. 4 and 7 for the International Covenant on Economic, Social and Cultural Rights; General Recommendation No. 27 for the International Convention on the Elimination of Racial Discrimination; and the case law of the European Court of Human Rights, to name only three such bodies of elaboration.⁵ Although there are clear international law standards on housing rights with legally binding obligations and duties on States (and in many countries some housing rights are regulated by domestic legislation), the extent to which national Courts accept domestic and international jurisprudence in the field of housing rights varies considerably from country to country.

This article looks at some cases of housing rights violations in which the European Roma Rights Center (ERRC), together with local partner organisations and lawyers, has brought litigation, using these case studies to illustrate the application of international law.

The Right to Protection from Forced Evictions, and the Provision of Alternative Accommodation

Forced evictions are defined by the United Nations Committee on Economic, Social and Cultural Rights in their General Comment No. 7 as "the permanent or temporary removal against the will of individuals, families and/or communities from the home and/or land which they occupy, without the provision of, and access to, appropriate forms of legal protection. The prohibition on forced evictions does not, however, apply to evictions carried out by force in accordance with the law and in conformity with the provisions of the International Covenants on Human Rights." The General Comment also provides, inter alia, that:

• Forced evictions frequently violate other human rights such as the right to life, the right to security of person, the right to non-interference with privacy, family and home and the right to peaceful enjoyment of possessions.
• Procedural protections are required where there is no alternative to eviction, including an opportunity for consultation before the eviction; adequate and reasonable notice and information on the proposed eviction; all persons carrying out the eviction to be properly identified; and government officials to be present, especially when groups of people are involved.
• Evictions should not result in individuals becoming homeless. Where those affected are unable to provide for themselves, the State must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing is available.

The following are examples of forced eviction cases in which ERRC, together with local partner organisations and attorneys, have brought legal action:

Zvecanska Street⁶

Ten Romani men, together with their families, have been living in an illegal, predominantly Romani settlement close to a hospital on Zvecanska street in Belgrade, Serbia and Montenegro. They have lived there for over 15 years and invested considerable time and much of their limited financial resources into improving the living conditions. For example, building a separate toilet block, adding a drainage system, and securing a power supply to the sheds in which they live.

During the last few years, the inhabitants of this settlement have repeatedly asked the municipal authorities for a more adequate and permanent solution to their housing situation. Instead of receiving local government assistance, the ten Romani men and their families were informed of eviction proceedings against them, initiated by the local hospital.

The Romani inhabitants, with the assistance of a local attorney and the ERRC, are fighting the eviction threat through the courts. In a separate action they have requested adequate alternative accommodation should the evictions be enforced. The Serbian courts have so far refused to consider the issue of alternative accommodation until the evictions had been enforced and the people made homeless. In the latest development, the plaintiffs, using international legal arguments, have requested the domestic courts that all of the previous legal actions in this case be joined together with the one for alternative accommodation, so that should the action against the eviction fail, the Romani inhabitants will not be made homeless. The case is currently pending before domestic courts in Serbia.

Danilovgrad⁷

On the basis of an application submitted jointly by the ERRC, the Belgrade-based NGO Humanitarian Law Center and a local attorney, the UN Committee against Torture (CAT) found forced eviction to be in violation of the Convention Against Torture, and by doing so not only provided a remedy to the victims of forced eviction but also provided human rights advocates with beneficial jurisprudence. The case, Hijrizi v. Yugoslavia, involved the forced eviction and destruction of the Bozova Glavica Romani settlement in the city of Danilovgrad by private residents who lived nearby. Earlier, the perpetrators had threatened to "exterminate" the community and "burn down" their houses. The Danilovgrad Police Department told the Romani community that they should evacuate the settlement immediately as they, the police, would be unable to protect them. Most of the Romani residents fled their homes leaving just a few behind to protect their housing and other possessions. During the afternoon of 15 April 1995, the non-Romani residents entered Bozova Glavica shouting "we shall evict them" and "we shall burn down the settlement". The crowd set fire to the housing, resulting in the entire settlement being levelled and all properties belonging to its Romani residents completely destroyed. Several days later the debris of Bozova Glavica was completely cleared away by municipal construction equipment leaving no trace of the community.

The CAT found that the Police Department did not take any appropriate steps to protect the residents of Bozova Glavica, and that the burning and destruction of the settlement constituted acts of cruel, inhuman or degrading treatment or punishment within the meaning of Article 16 of the Convention Against Torture. Consequently, the Committee held that the Government of Serbia and Montenegro had violated Article 16 by not protecting the rights of the residents of Bozova Glavica, a positive obligation under the Convention. Although the right to compensation is not expressly provided in the Convention for victims of acts of ill-treatment other than torture, the Committee concluded that the State Party should compensate the victims of this violation. As a direct result of the Committee's finding, the Montenegrin Government agreed on 19 June 2003, to pay 985,000 Euro in compensation to seventy-four Romani victims of the Danilovgrad tragedy.

The Right to Freedom from Discrimination in Access to Housing and Related Services

The International Covenant on Economic, Social and Cultural Rights, and the European Convention on Human Rights, both have articles that prohibit racial/ethnic discrimination in the enjoyment of the rights set out in the Covenant and the Convention. The scope of the International Convention on the Elimination of Racial Discrimination affirms that State parties must guarantee that individuals can enjoy the right to housing without being subjected to racial discrimination. The Committee on the Elimination of Racial Discrimination (CERD) in their General Recommendation No. 27 explain that "State Parties [should] adopt measures to act firmly against any discriminatory practices affecting Roma, mainly by local authorities and private owners, with regard to taking up residence and access to housing; to act firmly against local measures denying residence to and unlawful expulsion of Roma, and to refrain from placing Roma in camps outside populated areas that are isolated and without access to health care and other facilities".⁸

The following examples of discrimination in access to housing, cover a case in which local inhabitants and the municipality specifically singled out Roma to not receive public housing; a case in which local officials stopped a Roma family purchasing a house; and a case in which a municipality denied freedom of movement and residence to Roma.

Luboslava v. Slovakia

On 20 March 2002, the Councillors of the municipality of Dobšina, Slovakia, adopted a resolution in which they approved a plan to construct low cost houses for the Roma inhabitants of the town. About 1,800 Roma live in Dobšina in appalling conditions. Most of their houses are thatched huts or houses made of cardboard, with no potable drinking water, toilets or drainage and sewage systems. On hearing about the Councillors' resolution, some of the inhabitants of Dobšina and surrounding villages set up a five-member petition committee, and designed a petition which read "I do not agree with the building of low cost houses for people of Gypsy origin on the territory of Dobšina, as it will lead to an influx of in-adaptable citizens of Gypsy origin from the surrounding villages, even from other districts and regions". More than 2,700 inhabitants of Dobšina signed the petition. The Councillors considered the petition and voted, unanimously, against building houses for Roma, cancelling the earlier approved resolution. The ERRC's Slovak partner organisation, the League of Human Rights Advocates, wrote to the District Prosecutor on behalf of 17 Roma from Dobšina to request that the Prosecutor investigate and prosecute the authors of the discriminatory petition, and overturn the decision of the Dobšina town Councillors to no longer build houses for Roma in Dobšina. The District Prosecutor turned down the request to investigate the issue on the grounds that he had no jurisdiction over the matter. A submission to the Slovak Constitutional Court was turned down on the grounds that the applicants had provided no evidence that any fundamental right had been violated by the petition or by the Councillors' second resolution.

The ERRC (with assistance from local activist Jozef Červenak) and the League of Human Rights Advocates submitted a communication to the Committee on the Elimination of Racial Discrimination, asserting that a number of rights secured to them under the Convention have been violated. The case, Luboslava v. Slovakia, is pending before the CERD.

Kahlik v. Hungary⁹

Ms Bertalan Nagy is a Hungarian citizen of Romani origin who decided to buy a house in Gyure, Hungary. On 27 July 2001 she signed a preliminary contract with the owners of the house, Mr and Mrs Kahlik, both Ukrainian citizens of Hungarian origin. After it became publicly known that Mr and Mrs Kahlik intended to sell their house to a Roma, several non-Romani inhabitants of Gyure as well as a number of local government officials tried to stop the sale using threats and coercion. On 10 August 2001, despite the opposition, the purchasing contract was signed (under Hungarian law, however, the sale required the approval of the County Office of Public Administration. More than two years later, this office is formally yet to decide on the matter).

On the same day, the mayor and the notary held a meeting at the local council office following which five men, driving a council-owned car, went to the Kahlik's family house and threatened them by saying that the whole village would rather gather and burn their house down than allow it to be sold to Roma. Later that day, Mr Laszlo Herceg, the mayor of Gyure, came personally to ask the Kahliks to terminate the contract saying that "Roma cannot buy a house in Gyure" and "no Gypsy may live on the main street". In the evening of 10 August 2001, an unknown person, whom the Kahliks could hear but not see as they were afraid to leave the house, caused damage to their gate with an axe, called them "dirty Russians", and threatened to kill them. Ms Kahlik reported the incident to the competent authority, the notary of Gyure, but he terminated the investigation on the alleged grounds that the perpetrator could not be identified.

On 15 August 2001, Ms Nagy was called to come to the Council office for a meeting with the mayor of Gyure, the notary, a representative of the Ministry of Internal Affairs, and other local officials. Ms Nagy was told that she could not buy the house because the Kahlik family, being Ukrainian, could not sell the property, and in addition the notary of Gyüre had issued a sequester on the Kahlik family house based on a debt that subsequently turned out to be non-existent. The Kahlik family and Ms Nagy, assisted by the Hungarian non-governmetnal organisation Legal Defense Bureau for National and Ethnic Minorities (NEKI)as part of a joint litigation project with the ERRC, filed a criminal complaint and a civil complaint for damages. The criminal complaint was filed against the mayor and the notary as well as against an unknown perpetrator for misuse of official power, infringement of constitutional rights, using racist and threatening language, and damage to the Kahlik family house. Despite compelling evidence submitted by the applicants, including taped conversations containing the threats, both lawsuits were ultimately rejected.

ERRC and NEKI submitted an application to the European Court of Human Rights asserting violations of Article 3 (freedom from inhuman and/or degrading treatment), Article 8 (right to family and private life), Article 1 of Protocol 1 (right to peaceful enjoyment of one's possessions), Article 13 (right to an effective domestic remedy) and Article 14 (right to non-discrimination) of the European Convention on Human Rights. The case is pending before the European Court.

Koptova v. Slovakia¹⁰

In 1981, seven Romani families went to work and live on an agricultural co-operative located in the N'agov and Rokytovce municipalities, and obtained permanent residency there. At the end of 1989, the co-operative ceased operating and the Romani families lost their jobs and the company provided housing.

For the families, a long period of homelessness and anti-Romani racism followed. Over the next 16 years, the families moved from village to village, seeking a permanent and secure residence. They attempted to avail themselves of the housing provided by local authorities, but on more than one occasion, anti-Romani hostility on the part of local officials and non-Romani residents caused them to flee. They tried to build temporary dwellings, but local non-Roma tore these down.

On 18 June 1997, the Municipal Council of Rokytovce enacted Resolution No. 21, which expressly forbade Romani families from settling in the village and threatened them with expulsion should they attempt to settle there. Soon thereafter, on 16 July 1997, the Municipality of N'agov adopted Resolution No. 22, which forbade Romani citizens to enter the village or to settle in shelters in the village district.

Anna Koptova, a Slovak citizen of Romani ethnicity and director of the Legal Defence Bureau for Ethnic Minorities of the Good Romany Fairy Kesaj Foundation in Košice, brought a complaint before the Committee on the Elimination of Racial Discrimination, represented by the ERRC. She alleged that as a person of Romani origin, she was a victim of violations of the International Convention on the Elimination of Racial Discrimination, because Resolutions No. 21 and 22 prohibited her from entering the Municipalities of Rokytovce and N'agov on the basis of her ethnicity. In April 1999, the Resolutions were rescinded.

The CERD found a violation of Article 5(d)(I) of the Convention, because the "wording" and the "context in which [the Resolutions] were adopted" indicated that any Roma would have been prohibited from settling in the villages on the basis of their ethnicity. The CERD recommended that Slovakia "take the necessary measures to ensure that practices restricting the freedom of movement and residence of Romas under its jurisdiction are fully and promptly eliminated."

Right to Respect for Private and Family Life, and Home

The European Convention on Human Rights states that "Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except in accordance with the law".¹¹ Protocol 1, Article 1, to the Convention also covers protection of property. The case law of the European Court on the right to respect for the home covers such issues as protection from wilful damage, protection from nuisances and disturbance (including environmental nuisance), and regulation of property. There are two famous cases in which Turkish State agents illegally destroyed homes, and violations of Article 8 were found.¹² The following is a similar case from Romania:

Hadareni¹³

Nearly ten years after mob violence left three Romani men dead and the houses of 14 Romani families destroyed in Hadareni, Romania, the European Court of Human Rights on 3 June 2003 agreed to review the claims of 24 of the victims, finding the complaint raised "serious issues of law and fact under the Convention". The applicants are represented by the ERRC.

Following an altercation in which a non-Romani boy was killed, a mob of non-Romani villagers hunted down the alleged perpetrators and set fire to the house in which they were hiding. Two Roma were brutally murdered when they tried to escape, and a third burned to death in the house. The mob, including members of the local police force, went on to destroy 14 additional houses of Romani families. Three individuals were charged with the murders but later released and their arrest warrants cancelled by the General Prosecutor. The complaints against the police were referred to the Military Prosecutor's Office, which issued a decision not to prosecute. That decision was upheld on appeal.

Nearly four years later, following international outcry over the incident and the failure of Romanian authorities to bring justice to the victims, the Public Prosecutor in Mures County finally issued an indictment against 11 civilians suspected of committing the crimes, later expanded to include others. Twelve individuals were convicted of destruction of property and disturbance, including the Deputy Mayor of Hadareni, and five of murder. The sentences ranged from one to seven years, later shortened on appeal. The Supreme Court later acquitted two of the defendants and those remaining in custody were pardoned by the Romanian President in June 2000. A civil court rejected all of the claims for non-pecuniary (moral) damages, finding the crimes were not of such a nature as to produce moral damage.

Because the incident occurred prior to Romania's ratification of the European Convention on Human Rights, the applicant's claims under Article 2 (right to life) and Article 3 (freedom from torture or inhuman or degrading treatment) arising from the incident itself were dismissed on 13 March 2001. The claims remaining before the Court, which were declared admissible in the 3 June 2003 decision, include the applicants' claims under Article 3 (freedom from torture, inhuman or degrading treatment) and Article 8 (respect for private and family life) arising from the inhuman conditions in which they were forced to live following the destruction of their homes, as well as Article 6 (right to a fair trial) based on the delayed civil proceedings against the civilian defendants and the inability to pursue civil claims against the police because of the refusal by Romanian authorities to prosecute them.

In the following case, Chapman, ERRC submitted an amicus brief during the legal proceedings. The case is important as regards housing rights as it sets out positive obligations on the State in respect of people following a travelling lifestyle or living in illegal accommodation.

Chapman v. UK¹⁴

The applicant, a Gypsy/Traveller from the UK, wanted to station a mobile home on property that she had purchased, in direct conflict with the area's designation as a Metropolitan Green Belt. Although the European Court of Human Rights found that there is no general obligation for a government to provide housing under Article 8, the Court also stated that, "[n]onetheless, although the fact of being a member of a minority with a traditional lifestyle different from that of the majority of a society does not confer an immunity from general laws intended to safeguard assets common to the whole society such as the environment, it may have an incidence on the manner in which such laws are to be implemented. … The vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in arriving at the decisions in particular cases. To this extent there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life." In Chapman, the positive obligation on the United Kingdom was not sufficient to overcome the environmental land restrictions where the applicant wanted to live. In upholding the land restriction, the Court weighed the existence of alternative locations for an individual who wanted to live in a caravan. However, the Court did state, "that if no alternative accommodation is available, the interference is more serious than where such accommodation is available. The more suitable the alternative accommodation is, the less serious is the interference constituted by moving the applicant from his or her existing accommodation." Therefore, the Court suggested that minorities living in illegal accommodations may be permitted to stay if the government has not provided alternative accommodations for them. Chapman implies that under Article 8, the Government may have an obligation to provide alternative accommodations to minorities who desire to maintain their traditional lifestyle.

Litigating Housing Rights: Some Comments

Although the International Covenant on Economic, Social and Cultural Rights has the most comprehensive housing rights provisions, there is no mechanism under this treaty to bring individual complaints. The treaty can, however, be invoked in domestic court proceedings as it is legally binding on the States that have ratified it.

The scope of the European Race Equality Directive,¹⁵ which should have been transposed into national law in existing EU member states by July 2003 and should be transposed into national legislation by the date of accession for the countries that will join the EU, covers the prohibition of direct and indirect discrimination on racial or ethnic grounds on "access to and supply of goods and services which are available to the public, including housing". However, it is not clear yet what housing rights are counted as goods or services under the Directive. We await test cases and the jurisprudence of the European Court of Justice to further define the scope of this Directive.

Many housing rights are inter-linked, and may also be linked to other human rights. For example a forced eviction may involve not only the right to protection from forced evictions, but also discrimination, right to respect for private and family life, and in some of the cases cited in this article, torture, inhuman and degrading treatment. Furthermore, lack of security of tenure, affecting many Roma in Europe today, may also involve, as it often happens, denial of fundamental rights.

The denial of residence permits to Roma in some countries, often on the grounds that the owner of the property where they live does not have legal tenure of the land on which the property is situated, can result in the person not having access to other human rights, such as access to education, healthcare or social benefits. In Slovakia, ERRC, together with the Milan Simecka Foundation and the Centre on Housing Rights and Evictions, is implementing a project to defend the housing rights of Roma. Denial of residence permits is one of the test cases that we are bringing, in order to change the misused practice of many municipalities in Slovakia to limit the number of Roma living in the municipality's area. The project is supported by the British Foreign and Commonwealth Office.

Conclusions

In its Third Report on Slovakia, adopted on 27 June 2003, the European Commission Against Racism and Intolerance said "ECRI is very concerned that the situation as regards housing for many Roma communities remains grave, with large numbers of Roma living in settlements lacking even the basic amenities such as water, sanitation and electricity. The conditions are so critical in some settlements that there is a real threat of health epidemics, while it seems clear that the families - and particularly children - living under such conditions cannot possibly hope to participate in society on an equal footing in other areas of life such as education and employment."

States are legally bound by international treaties, and this includes provisions on housing rights. There is a positive obligation on States to provide protection of these rights. Governments can be held accountable under law, as we hope has been shown through the cases described in this report. Litigation can be successfully brought to assert housing rights.

Endnotes:

1. Alan Anstead is ERRC Legal Adviser/Project Manager.
2. ICESCR, Article 11 (1), see www.unhchr.ch/html/menu3/b/a_cescr.htm.
3. ICERD, Article 5 (e)(iii), see www.unhchr.ch/html/menu3/b/d_icerd.htm
4. ECHR, Article 8 (1), see www.conventions.coe.int/Treaty/EN/CadreListeTraites.htm
5. CESCR General Comment 4: Right to adequate housing and General Comment 7: Forced evictions, and CERD General Recommendation 27: Discrimination Against Roma, can be found at www.unhchr.ch/tbs/doc.nsf.
6. Further information on the case at: www.errc.org/rr_nr1_2002/legal_defence.shtml
7. See also www.errc.org/publications/letters/2003/montenegro_jul_4_2003.shtml and www.errc.org/publications/letters/2003/montenegro_jan_22_2003.shtml.
8. CERD General Recommendation No.27, para. 31, see www.unhchr.ch/tbs/doc.nsf.
9. See www.errc.org/publications/letters/2003/hungary_oct_1_2003.shtml.
10. CERD Communication No. 13/1998 (CERD/57/D/13/1998), see www.unhchr.ch/tbs/doc.nsf
11. ECHR, Article 8 (1) and (2).
12. Mentes v. Turkey, application 23186/94, and Akdivar v. Turkey, application 21893/93, see www.hudoc.echr.coe.int/hudoc
13. See www.errc.org/publications/letters/2003/romania_jul_4_2003.shtml.
14. See Application No. 00027238/95, at: http://hudoc.echr.coe.int/hudoc and Luke Clements: An Emerging Consensus on the Special Needs of Minorities: The Lessons of Chapman v. UK. In Roma Rights 2-3/2001, at: http://www.errc.org/rr_nr2-3_2001/legal_defence.shtml.
15. Council Directive 2000/43/EC.