Landmark victory for Roma living in shanty town in Bulgaria

Chris Johnson, Community Law Partnership and Marc Willers of Garden Court Chambers

Yordanova & ors v Bulgaria, European Court of Human Rights (ECtHR), application no. 25446/06, 24th April 2012.

Introduction

In Yordanova the ECtHR found that the threatened forcible eviction of a Roma ‘shanty town’ by the relevant municipal authority was a breach of Article 8 of the European Convention on Human Rights (ECHR).

Our courts must take account of judgments of the ECtHR when determining any question which has arisen in connection with a right protected by the ECHR and advocates representing Gypsies and Travellers will doubtless rely on the decision in Yordanova when arguing that any decision to evict or remove their clients from land is disproportionate in terms of Article 8 of the ECHR.

This blog explains the facts and the reasoning of the European Court’s decision in Yordanova. It also comments on the potential ramifications of the decision for Gypsies and Travellers facing eviction from unauthorised encampments or developments.

The facts

At the end of the 1960s and in the 1970s the applicants or their parents and grandparents moved to Batalova Vodenitsa (BV), a neighbourhood ofSofia. They built their homes on State land without any authorisation. Some 200 to 300 Roma now live there. Most of the buildings are single-storey houses. There is no sewage or plumbing. The applicants’ houses do not meet the basic requirements of the relevant construction and safety regulations. Under the relevant domestic law the applicants cannot obtain ownership of the land they occupy. Over the years a large number of complaints about this settlement have been made by non-Roma residents of BV.

In September 2005 the Mayor of Sofia ordered the forcible removal of the Roma living in the settlement under the Municipal Property Act. In the same month, the municipal authority agreed they would offer alternative housing to the Roma residents (no offers of alternative housing have, in fact, been made since then). Attempts were made by the applicants to challenge the removal order in the Bulgarian courts but these attempts were unsuccessful. The Bulgarian courts found that the fact that the applicants had not shown a valid legal ground for occupying the land was sufficient to establish that the removal order was valid.

In June 2008 the municipal authorities, relying on the removal order, served notices on the applicants requiring them to leave their homes failing which they would be forcibly evicted. The Roma residents applied to the ECtHR for relief and theEuropean Courtmade an interim order that the applicants should not be evicted pending receipt by the ECtHR of detailed information about any arrangements to secure alternative housing. In July 2008, the District Mayor stated she had suspended enforcement of the removal order. In the same month the National Council for Cooperation on Ethnic and Demographic Issues indicated that the Roma residents of BV should not be evicted until a solution was found. However, no alternative housing was made available to the Roma residents and the matter proceeded to a final determination by the ECtHR.

Consideration of potential breach of Article 8

(a)    Length of time

The ECtHR stated (at paras 120-121):

There is no doubt that the authorities are in principle entitled to remove the applicants, who occupy municipal land unlawfully…The Court notes, however, that for several decades the national authorities did not move to dislodge the applicants’ families or ancestors and, therefore, de facto tolerated the unlawful Roma settlement in Batalova Vodenitsa. In its view, this fact is highly pertinent and should have been taken into consideration…The principle of proportionality requires that such situations, where a whole community and a long period are concerned, be treated as being entirely different from routine cases of removal of an individual from unlawfully occupied property.

Comment: Clearly each case will be determined on its own facts. There have been instances in theUKwhere unauthorised developments have been in existence for lengthy periods of time (for example, Dale Farm) where a similar conclusion may be reached. Unauthorised encampments tend to be more short-lived. Nevertheless it may be possible to argue that similar considerations apply in circumstances where a Gypsy or Traveller has been resorting to a particular local authority area for a significant period of time and has been subject to frequent evictions in that area.

(b)  Addressing proportionality

The ECtHR stated (at paras 122-123):

Under the relevant domestic law, as in force at the time, the municipal authorities were not required to have regard to the various interests involved or consider proportionality…Relying on this legal framework, the municipal authorities did not give reasons other than to state that the applicants occupied land unlawfully and, in the judicial review proceedings, the domestic courts expressly refused to hear arguments about proportionality and the lengthy period during which the applicants and their families had lived undisturbed in Batalova Vodenitsa…In cases such as the present one, this approach is in itself problematic, amounting to a failure to comply with the principle of proportionality.

Comment: The Supreme Court judgments in the cases of Pinnock and Powell have finally made it clear that a defendant in an eviction action, even if the claimant has an apparently absolute right to possession, can question the proportionality of the decision to evict. However, if the only means of challenging a particular decision is by way of judicial review it may be questionable whether that is a sufficient remedy. Thus in Manchester CC v Pinnock, Lord Neuberger stated ([2011] HLR 7 at 129 para 45(b)):

[A] judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (i.e., one which does not permit the court to make its own assessment of the facts in an appropriate case) is inadequate as it is not appropriate for resolving sensitive factual issues.

(c )  Unsanitary conditions

The ECtHR stated ( at para 124):

The Court further observes that it is undisputed that the houses of most applicants do not meet basic sanitary and building requirements, which entails safety and health concerns. It considers, however, that in the absence of proof that alternative methods of dealing with these risks have been studied seriously by the relevant authorities, the Government’s assertion that the applicants’ removal is the appropriate solution is weakened and cannot in itself serve to justify the removal order.

Comment: This point has a particular relevance in unauthorised encampment cases in the UK. Local authorities often refer to the lack of basic services at an encampment. The decision in Yordonova makes it clear that such arguments should not justify eviction in cases where the local authorities have failed over the years to ensure that there is adequate pitch provision.

(d)   Alternative accommodation and homelessness

The ECtHR stated (at paras 125-126):

Indeed, the Bulgarian authorities have recognised…that a wide range of different options are to be considered in respect of unlawful Roma settlements…In addition, it is noteworthy that before issuing the impugned order the authorities did not consider the risk of the applicants’ becoming homeless if removed. They attempted to enforce the order in 2005 and 2006 regardless of the consequences and, while they signed an agreement containing an undertaking to secure alternative shelter, they later disregarded it and declared that the risk of the applicants’ becoming homeless was ‘irrelevant’.

Comment: The UKcourts have been reluctant to make the link between eviction and homelessness. The ECtHR in Yordanova see that link as being essential.

 (e) An underprivileged community

The ECtHR stated (at paras 128-129):

[I]n the Court’s view, there would appear to be a contradiction between, on the one hand, adopting national and regional programmes on Roma inclusion, based on the understanding that the applicants are part of an underprivileged community whose problems are specific and must be addressed accordingly, and, on the other hand, maintaining, in submissions to the Court, as the respondent Government did in this case, that so doing would amount to ‘privileged’ treatment and would discriminate against the majority population…Such social groups, regardless of the ethnic origin of their members, may need assistance in order to be able effectively to enjoy the same rights as the majority population. As the Court has stated in the context of Article 14 of the Convention, that provision not only does not prohibit a member State from treating groups differently in order to correct ‘factual inequalities’ between them but, moreover, in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of Article 14…

Comment: This is clearly highly relevant to Gypsies and Travellers, especially those on unauthorised encampments and developments (see also Thlimmenos v Greece, application no. 34369/97).

(f)   No right to housing

The ECtHR stated (at para 130):

The above does not mean that the authorities have an obligation under the Convention to provide housing to the applicants. Article 8 does not in terms give a right to be provided with a home…However, an obligation to secure shelter to particularly vulnerable individuals may flow from Article 8 of the Convention in exceptional cases.

(g)  Attitude of the applicants

The ECtHR stated (at para 131):

It is also true that the applicants have not been active in seeking a solution…It appears that they are reluctant to seek social housing at least partly because they do not want to be dispersed, find it difficult to cover the related expenses and, in general, resent the radical change of their living environment that moving into blocks of flats would entail. However, Article 8 does not impose on Contracting States an obligation to tolerate unlawful land occupation indefinitely.

Conclusion regarding the 2005 removal order

The ECtHR stated (at paras 133-134):

In general, the underprivileged status of the applicants’ group must be a weighty factor in considering approaches to dealing with their unlawful settlement and, if their removal is necessary, in deciding on its timing, modalities and, if possible, arrangements for alternative shelter. This has not been done in the present case…In sum, the Court finds that the respondent Government failed to establish that the removal order of 17 September 2005 was necessary in a democratic society for the achievement of the legitimate aims pursued.

Comment: This judgment bears a lot of resemblance to the landmark judgment of Sachs J in the South African Constitutional Courtin Port Elizabeth Authority v Various Occupiers [2004] ZACC 7. The South African case involved a refusal to grant a possession order against another unlawful ‘shanty town’ and, once again, great emphasis was placed on the failure to look at alternatives.

Events post the removal order

The ECtHR stated (at para 136):

Although the mayor of the relevant district suspended the applicants’ removal temporarily, it is significant that…there has been no decision to re-examine the order of 17 September 2005 or tie its enforcement to the implementation of appropriate measures to secure respect for the applicants’ Article 8 rights.

Complaints from neighbours

The ECtHR stated that the authorities were under a duty to act in response to neighbours’ complaints. However, it was also noted (at para 142):

Some of the neighbours’ complaints…also contained illegitimate demands, such as to have the applicants ‘returned to their native places’.

Final conclusion and remedy

The ECtHR stated (at para 144):

The above considerations are sufficient for the Court to reach the conclusion that there would be a violation of Article 8 in the event of enforcement of the deficient order of 17 September 2005 as it was based on legislation which did not require the examination of proportionality and was issued and reviewed under a decision-making procedure which not only did not offer safeguards against disproportionate interference but also involved a failure to consider the question of ‘necessity in a democratic society’.

In terms of remedy, the ECtHR stated (at paras 166-167):

[T]he Court expresses the view that the general measures in execution of this judgment should include such amendments to the relevant domestic law and practice so as to ensure that orders to recover public land or buildings, where they may affect Convention-protected rights and freedoms, should, even in cases of unlawful occupation, identify clearly the aims pursued, the individuals affected and the measures to secure proportionality…In so far as individual measures are required, the Court is of the view that the execution of the present judgment requires either the repeal of the order of 17 September 2005 or its suspension pending measures to ensure that the authorities have complied with the Convention requirements…

The applicants were not awarded damages. The Bulgarian Helsinki Committee, who assisted the applicants, donated the costs they were awarded by the ECtHR to the applicants.

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