May 08, 2012
This post is co-authored by Lourdes Peroni and Alexandra Timmer
The recent case of Yordanova and others v. Bulgaria concerns a pressing human rights issue: the mass eviction of Roma from their houses. The Court shows itself a strong defender of socially disadvantaged groups who risk eviction from land that they have lived on for a long time. We will highlight just a few aspects of the Court’s judgment, namely the Court’s outstanding proportionality analysis and the issue of racial tensions.
The applicants are Roma. They live in Batalova Vodenitsa, a neighbourhood of Sofia, on land owned by the State. Their families have lived there since the 1960s; more recent arrivals settled there in the 1990s. Most of the buildings are single-storey houses. There is no sewage or plumbing. The inhabitants use water from two public fountains. The applicants have occupied the land illegally and never sought to regularise the buildings they had constructed.
This situation existed for decades, until the municipal authorities transferred the title to the land to a private investor in 2005. Tension had been building up between the Roma residents and their non-Roma neighbours since the beginning of the 1990s. The district mayor ordered the removal of the Roma residents shortly after the land was transferred. The courts upheld this order. The Roma residents have so far not been evicted, first under pressure from the European Parliament and then under a Rule 39 ruling by the ECtHR. Viable alternative housing plans have so far not been presented by the Government.
Outstanding Proportionality Analysis
Right at the beginning of the Court’s Article 8 justification reasoning, it becomes clear that the removal order missed the proportionality analysis completely. The fault actually lied with a Bulgarian law that did not require any examination of proportionality whatsoever. As a result, the municipal authorities did not give any reasons for the order, apart from the unlawfulness of the applicants’ occupation. Moreover, as the Court notes, domestic courts refused to hear arguments related to the proportionality of the measure. The Court finds this approach problematic in itself, as under Article 8, the removal order can only be justified if it responds to a “pressing social need” and if it is “proportionate to the legitimate aim pursued” (paragraph 123). In what follows, then, the Court shows what a proper proportionality analysis should have entailed. Two considerations stand out in the Court’s reasoning and are worth reflecting on.
Recognition of the Community Life in Batalova Vodenitsa
The fact that the applicants were part of a community in which members have developed strong social links is a significant consideration in the Court’s proportionality analysis. The Court, first of all, makes clear that these cases should not be treated the same way as routine removal cases. What proportionality requires is that cases “where a whole community and a long period are concerned” be treated differently (paragraph 121). The Court notes that the applicants had a long history of “undisturbed presence” (the government had de facto tolerated the settlement for decades) and, as result, have built a decades-old community in Batalova Vodenitsa. The government, however, took no notice of these circumstances. Neither did it take notice of the consequences of the removal. For the government, the risk of the applicants’ becoming homeless was simply “irrelevant” (!!). The Court shows that all this – the circumstances and the consequences – should be part of the proportionality analysis.
What is furthermore interesting in the Court’s reasoning is its effort to understand why the applicants have been reluctant to seek social housing. The Court shows itself sensitive to the sense of community and lifestyle they have developed. It understands that the applicants “do not want to be dispersed … and … resent the radical change of their living environment that moving into blocks of flats would entail” (paragraph 131). This understanding of the applicants’ community life actually surfaces early on in the analysis. The Court had found interference not only with the applicants’ right to respect for their homes, but also with their “private and family life” because of the hundreds of people the removal would affect and of the repercussions this could have “on the applicants’ lifestyle and social and family ties” (paragraph 105).
“Socially disadvantaged group”
The idea that the applicants were part of a socially disadvantaged group plays out strongly in the Court’s reasoning with notable implications. The Court devotes four remarkable paragraphs (129, 130, 132 and 133) to this factor. The Court says for example at the end of paragraph 129:
In the context of Article 8, in cases such as the present one, the applicants’ specificity as a social group and their needs must be one of the relevant factors in the proportionality assessment that the national authorities are under a duty to undertake.
The inclusion of the disadvantaged position of the applicants’ group as one relevant factor in the proportionality analysis deserves praise for its potential to further a version of equality that is more responsive to the particular circumstances and needs individuals may face and have. In fact, the Court rejects the government’s argument that considering approaches specially tailored to the applicants’ situation would amount to “privileged” treatment or discrimination against the majority. For the Court, this argument “fails to recognise the applicants’ situation as an outcast community and one of the socially disadvantaged groups” (paragraph 129).
What further points to a more substantive idea of equality is the nature of the positive duty the Court derives from Article 8. Although this is not an obligation to provide housing – the Court makes clear, once again, that there is no such an obligation under the Convention – it is “an obligation to secure shelter to particularly vulnerable individuals [which] may flow from Article 8 of the Convention in exceptional cases” (paragraph 130). What does all this mean in concrete terms? In Yordanova, this meant that the disadvantaged position of the applicants’ social group could and should have been taken into account in, for example, assisting them in the eligibility for social housing. More generally, this means that the “underprivileged status of the applicants’ group must be a weighty factor” in considering the ways of dealing with unlawful settlements and, if the removal is necessary, in determining the timing, modalities and, if possible, arrangements for alternative shelter (paragraph 133).
When we discussed this case with our research team, we agreed that the focus of the judgment lies more on poverty than on racial issues. Perhaps the Court could have done more in condemning the obvious racial tensions that play a part in the case. Remarkably, the Bulgarian Government had
appealed to the Court to take into account, in deciding the case, the reaction a finding of a violation of the Convention would prompt in Bulgarian society, precisely because Bulgarian society expected to see the law applied equally to persons from all ethnic groups. (paragraph 98)
This, of course, is turning the discrimination argument on its head: it is not the Bulgarian majority that is the victim of inequality here! The Court does not spend a lot of time on this, but notes:
Some of the neighbours’ complaints, however, also contained illegitimate demands, such as to have the applicants “returned to their native places” . . . It is also clear that the situation that obtained was characterised by tension that risked fuelling animosity between two social and ethnic groups. It was therefore important to act in such a manner that the authorities were not seen as being influenced by hostile attitudes of one group against another. However, the Court is not convinced that these subsequently raised illegitimate demands played any role in the initial decision-making process for the issuing of the removal order in question. (paragraph 142)
After all the praise, in conclusion some critique
In the above quote, the Court should have referred to the host of human rights records that document the racism against Roma in Europe generally and Bulgaria specifically. These are not just “hostile attitudes of one group against another”; these attitudes have existed towards the Roma for a long time. Actually, the Court could have done a better job overall in referring to other human rights instruments. This Court is not the first to get a case that concerns (Roma) evictions. We missed a reference to the European Committee of Social Rights in the merits part for example.
On the whole though, it is clear that this is a strong judgment. Governments are warned that they cannot wave away the housing needs of socially disadvantaged groups as “irrelevant”. Let’s hope they take it to heart.