September 15, 2010
We have all read about the utterly unacceptable treatment of Roma by Sarkozy’s government. And while France holds firm to its “return policy”, thankfully the EU has not turned a blind eye to this discriminatory practice, violating both the freedom of movement within the EU and the prohibition of collective expulsions. First, the European Parliament sent a clear message, issuing a resolution in which the French government was explicitly named and shamed. Now, after a revealed official document clearly demonstrates how the French government is targetting Roma specifically, the European Commission is also going on the offensive. Through the voice of its Commissioner for Justice, Fundamental Rights and Citizenship, the European Commission has said “enough is enough” and threatens France with the initiation of a so-called “fast-track” infringement procedure which could eventually lead to France being held in violation of EU law and fined by the European Court of Justice.
While the above case will be well known to all readers of this blog, other cases pass underneath the radar of the international media. The primary reason for this is that they are less directly shocking. Nonetheless, these ‘minor’ cases also reveal what can only be termed a poisonous attitude towards Roma. And that attitude sends a not to be misunderstood message: “you are not welcome here”. One such ‘minor’ case is currently taking place in Brussels.
As the capital of Belgium – and Europe – Brussels sees many Roma families passing through, looking for a temporary site to station their caravans. For that reason, in 2004 the parliament of the Brussels-Capital Region passed a resolution calling for the creation of several sites to be used by Roma for temporary stationing. Until 2006, in the area of Brussels one such site was made available, in Haren. However, that site has since been closed for improvement of facilities and its reopening has been postponed several times. It is now scheduled to be opened again sometime in 2011. It will offer space and facilities for 25 families. In the meantime, Roma have nowhere to legally station their caravans in the Brussels area. And so they choose a location that they find suitable. One such location is a site in the municipality of Neder-Over-Heembeek, which was occupied by Roma for several weeks last year. As is usually the case in Belgium when ‘strange people’ occupy a piece of land, the surrounding residents were not pleased. But the city of Brussels found a solution so the ‘problem’ would not repeat itself. The city decided to plant mustard grass on the site. The primary characteristics of mustard grass are that it grows rapidly, can easily cover large areas of land ánd will render the stationing of caravans – or any other use of the site for that matter – impossible. Brussels first launched this plan in May 2010, stating that the planting of the mustard grass was intended to “increase the biodiversity of the capital”. Lucky capital. Plus, in the words of the deputy to the mayor responsible for Green Areas, it would be “a good bonus that the Gypsies will no longer be able to use the site for temporary stationing”. Following widespread protests, also by youth groups who would no longer be able to organise activities on the terrain, the plan was withdrawn, but it has been taken out of the drawer again this week. The city once again seems determined to plant the mustard grass seeds to get rid of the Roma ‘problem’. And the only protest uttered in the media against the plan this time comes from a city council member primarily concerned with the effect on the local youth movements. She only mentions the Roma in passing, stating that “it suffices to apply the relevant police regulations when caravans are stationed there illegally”.
When reading about this case I wondered what would follow from application of the relevant case-law of the European Court of Human Rights. In its landmark decision of Chapman v. The United Kingdom (18 January 2001) the ECtHR recognised that the occupation of a caravan is an integral part of the ethnic identity of Roma, reflecting the long tradition of that minority of following a travelling lifestyle. Measures impacting negatively on the possibility for Roma to station their caravan in a certain location thus affect not only their right to respect for the home, but also their ability to maintain their identity as a Roma and to lead their private and family life in accordance with that tradition, the Court held. However, when assessing the local authority’s decision to remove the applicant from the terrain she was illegally occupying, the Court relied heavily on the margin of appreciation to defer to the decision of the national authorities and found that art. 8 had not been violated in the instant case.
Of course, the facts of the Belgian case do not match those of Chapman. Most importantly, the situation is not one in which Roma are removed from a site they are occupying, but one in which they are prevented from entering a site. As a result, the question turns to one of positive obligations of the Belgian state. It are thus especially the paragraphs of the Chapman judgment on the positive obligations of the member states that will be most relevant to assess the Belgian case. In Chapman, the Court re-affirmed, following the Buckley case, that “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 reaching 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.” However, it immediately clarified that this positive obligation cannot go as far as entailing an obligation to ensure the availability of sufficient camp sites throughout the country to be able to accommodate all Roma. “The Court does not, however, accept the argument that, because statistically the number of Gypsies is greater than the number of places available on authorised Gypsy sites, the decision not to allow the applicant Gypsy family to occupy land where they wished in order to install their caravan in itself, and without more, constituted a violation of Article 8. This would be tantamount to imposing on the United Kingdom, as on all the other Contracting States, an obligation by virtue of Article 8 to make available to the Gypsy community an adequate number of suitably equipped sites. The Court is not convinced […] that Article 8 can be interpreted as implying for States such a far-reaching positive obligation of general social policy”. In Chapman, the Court was not convinced that no alternatives were available to the applicant to station her caravan in another location and thus held that the UK had not violated its positive obligation under art. 8. Leaving aside the strong dissent in Chapman, I would like to focus on the implications of the Court’s judgment for the case in Brussels. A crucial difference with the situation in the UK is that no alternatives are available to Roma in the Brussels area. They have no choice but to occupy sites illegally, since there are simply no official sites available. In such a situation one could argue that the positive obligation of the state to facilitate the Roma way of life weighs more heavily. Insufficient efforts have been made to create sites on which Roma can legally station their caravan while passing through Brussels. This is obviously a different situation from that in Chapman, where the UK had provided sites, but not enough to cater to the needs of all Roma. Brussels does not provide any sites at all.
Although the comparison does not take root completely, I would argue that the planting of mustard grass seeds on one of the only alternative – albeit illegal – sites available to Roma in the Brussels region and this in order to prevent them from stationing their caravans there, goes against the spirit of Chapman and the positive obligation to facilitate the Roma way of life. I would thus argue that Roma should be allowed to make use of the site in Neder-Over-Heembeek, at least until the site in Haren is opened again.