December 06, 2011
In a decision of 28 June (COHRE v. France, no. 63/2010), which was only recently made public, the European Committee of Social Rights has found the French zero tolerance policy towards East European Roma living in illegal camps to be in violation of the European Social Charter. The case, which was lodged by the NGO Centre on Housing Rights and Evictions (COHRE), concerns the eviction and expulsion measures announced by French president Sarkozy in the summer of 2010. Hundreds of illegal camps were dismantled and thousands of Roma were expelled to Romania and Bulgaria. Most expulsions took place on a “voluntary” basis, in exchange for the payment of 300 euro per adult and 100 euro per child.
The Committee first considered the complaint under Art. E (the principle of non-discrimination) in conjunction with Art. 31, § 2 of the European Social Charter. The latter provision concerns the right to housing and particularly requires states to “take measures designed to prevent and reduce homelessness with a view to its gradual elimination.” According to the Committee’s case-law the illegal occupation of a site or dwelling may justify the eviction of illegal occupants. The Committee however requires that the criteria of illegal occupation must not be unduly wide; that the eviction takes place in accordance with the applicable rules of procedure; that these rules are sufficiently protective of the rights of the persons concerned; and that the eviction is carried out in conditions that respect the dignity of the persons concerned. The authorities must moreover take steps to rehouse or financially assist these persons.
The Committee considered that France had failed to demonstrate that the forced evictions were carried out in conditions that respected their dignity, or that the Roma were offered alternative accommodation. Furthermore these evictions took place against a background of ethnic discrimination, Roma stigmatisation and constraint, in the form of the threat of immediate expulsion from France. The Committee attached considerable weight to the fact that a particular ethnic group was explicitly singled out. Therefore the Committee ruled that the evictions constituted a clear and direct discrimination, in violation of Art. E in conjunction with Art. 31, § 2 of the Charter.
The Committee then proceeded to examine the complaint under Art. E in conjunction with Art. 19, § 8 of the Charter (the protection of migrant workers against expulsion). The Committee constructs this provision in harmony with Art. 4 Protocol No. 4 to the ECHR, the prohibition of collective expulsion. In line with the case-law of the ECtHR, Art. 19, § 8 thus prohibits
“any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group (…). That does not mean, however, that where the latter condition is satisfied the background to the execution of the expulsion orders plays no further role in determining whether there has been compliance with Article 4 of Protocol No. 4.” (ECtHR, 5 February 2002, no. 51564/99, Čonka v. Belgium)
According to the Committee, the use of standard forms or orders to leave the territory with identical content suggested that France did not take the individual circumstances of the persons concerned into account. The Committee further considered that “in practice these so-called ‘voluntary’ returns are disguised forms of forced collective expulsions.” This resulted from the fact that these returns were “accepted” subject to the constraint of forced eviction and the real threat of expulsion from France. The involuntary nature was further demonstrated by the willingness to accepts such low payments, which revealed a
“situation of destitution or extreme uncertainty (…) in which the absence of economic freedom poses a threat to the effective enjoyment of their political freedom to come and go as they choose.”
As the expulsions took place against a background of ethnic discrimination, the Committee found a violation of Art. E in conjunction with Art. 19, § 8 of the Charter.
European Court of Human Rights
The decision of the European Committee of Social Rights clearly shows that authorities should refrain from Romaphobia and that a policy singling out Roma is incompatible with the respect for human rights. The decision might also be a source of inspiration for the Committee’s big brother, the ECtHR.
First of all, the Committee directly goes to the heart of the issue: ethnic discrimination. The evictions and expulsions did not happen “by coincidence”, the persons concerned were exactly evicted and expelled because they were Roma. The ECtHR on its turn tends to avoid as much as possible getting into a discrimination analysis if it can decide a case on the basis of the linked substantive rights. In this respect, see for example Lourdes’ and Alexandra’s recent comments on the case of V.C. v. Slovakia. Interestingly, the Committee also takes into account the background of Roma stigmatization, especially because the French authorities had contributed to the creation of such a hostile climate. This can be relevant for the case of Aksu v. Turkey, which is currently pending before the Grand Chamber, in which the Court has to rule on the question whether stigmatization of Roma in two government-funded publications constitutes discrimination in the sense of Art. 14 ECHR. On this case, see Alexandra’s blogs here, here and here.
Secondly, the Committee has interpreted the prohibition of collective expulsion in a broad sense. Generally the guarantees of Art. 4 Protocol 4 are considered to apply only to “forced” expulsions. This seems to be confirmed by the Court’s definition of a collective expulsion: “any measure compelling aliens, as a group, to leave a country (…).” The Committee has however correctly held that a return should not be easily considered to be “voluntary”. When returns result from an explicit policy targeting a particular group – which of course is inherently at odds with the principle of non-discrimination – and involve a certain element of restraint (either socio-economic or by threatening with coercive measures), Art. 4 Protocol 4 preliminarily requires a reasonable and objective examination of the particular case of each individual. The Court should follow suit when further developing its case-law under Art. 4 Protocol 4.