Strasbourg Observers

Winterstein v France: the third-party perspective

November 25, 2013

This guest post was written by Judit Geller* and Adam Weiss**

One month ago, the European Court condemned France under Article 8 for violating the rights of travellers (gens du voyage) by ordering their eviction (see the judgment here). The European Roma Rights Centre (ERRC) made written submissions as a third-party intervener four and a half years ago. Of the eleven countries where the ERRC is currently litigating Roma rights cases, France is the country where it has the greatest number of cases, and most of those concern housing. This piece discusses the judgment in relation to three key issues for Roma facing eviction: alternative accommodation, the failure to conduct a proportionality exercise, and the use of urgent procedures.

The Facts
The applicants were French citizens who had been living, some for many decades, on sites which were designated as protected natural zones. The courts ordered the applicants to leave the land within three months, and to pay a penalty (astreinte) of €70 a day for every day after that deadline they stayed. The authorities did not seek to enforce the eviction or the penalty payment (which continued to run). Instead, some steps were taken with a view to relocating the applicants, either through social housing or the creation of different, approved sites. A few families were re-housed in social housing, some remained (or left and returned to) the area, and some left the region.

The ERRC’s Intervention and its Context
In 2008, the ERRC submitted a collective complaint against France regarding the issue of housing of Roma and Travellers to the European Committee on Social Rights (ECSR). The complaint was still pending at the time of the Winterstein intervention. Relying on many of the arguments developed in that complaint, the ERRC’s third-party intervention addressed the housing situation of Roma and Travellers in France. The ERRC argued that “sheds and caravans” of Roma and Travellers fall within the scope of Article 8 (“home”) and Article 1 of Protocol No. 1 (“property”). The ERRC argued that the legal system in France was inadequate to address the unique housing circumstances of Roma and Travellers in France, and that no effective national remedies existed under the domestic legal system to remedy their homelessness. The ERRC argued that in the area of housing, the particular vulnerability of Roma and Travellers meant that it was incompatible with the Convention and other provisions of European and international law to evict Roma without re-housing them. In 2010, the ECSR found France in breach of Articles 16, 19, 30, 31 and E of the Revised European Social Charter (Social Charter) in respect of the housing and social inclusion situation of its Traveller and Romani populations, both itinerant and settled.

The Judgment
The Court found a violation of Article 8. The Government claimed the applicants lacked victim status because the judgments had not been enforced. The Court replied that the penalty payments were still running, that years had passed before the applicants were re-housed and that the authorities had never recognised that a violation had occurred. In relation to the applicability of Article 8, the Court rejected the Government’s theory that because the (unenforced) judgments of the domestic courts had only had ‘minimal effects’ (effets réduits), Article 8 was not engaged. In relation to Article 8 § 2, the interference was in accordance with the law and pursued a legitimate aim; however, it was not necessary in a democratic society because it was disproportionate. The key aspects of the proportionality analysis are set out below in point 2.

Winterstein, France and the Future of Roma Evictions
The applicants were Travellers; although they are different groups, Roma and Travellers in France face related social and legal problems. The French authorities dog Roma with repeated, short-notice evictions, often accompanied by orders (‘OQTFs’) to leave France altogether. The French courts have not been sympathetic to claims by Roma that these evictions and expulsion orders are illegal. The Winterstein judgment should force the French courts and authorities to re-think their approach in three key ways:

1. Alternative Accommodation
Roma in France are regularly threatened with expulsion without any offer of being re-housed. The domestic courts have excused this, finding, for example, that the local authority evacuating Romani communities cannot be expected to re-house applicants, as that is the State’s responsibility. The Winterstein judgment seems to state clearly (§§ 159 – 166) that only in exceptional circumstances (force majeure) should Roma or Travellers be evicted without being re-housed. While some of the applicants were offered social housing, others requested new family sites where they could set up their homes. While steps were taken to make this possible, these were abandoned. The Court explicitly said that the applicants who wanted to be re-located to another site could not be faulted for refusing to move instead to social housing, since social housing does not correspond to their way of life. Although the applicants in Winterstein were long-term residents, the finding that Roma and Travellers who are evicted must be re-housed seems to apply to all Roma and Travellers. It appears that even those who have only been living for a short time in a location should be re-housed – in accommodation appropriate to their way of life – if they are evicted. The language in this judgment will support the ERRC’s efforts to ensure that Roma are offered appropriate alternative accommodation before any evictions can take place.

2. Systemic failure of the French courts resulting from a failure to conduct a proportionality exercise
Relying heavily on the judgment in Yordonova and others v Bulgaria, the Court found that the failure of the French courts to conduct any balancing exercise between the applicants’ Article 8 rights and the interests weighing in favour of eviction. This remains a problem: when Roma assert that an eviction will violate their Article 3 and Article 8 rights, the French courts often respond by prioritising property rights or planning rules, without any proportionality test (or only cursory consideration of the applicants’ situation). French judges need training on how to apply Article 8 in such cases.

3. The use of urgent procedures
This was not directly at issue in the case, but the Winterstein judgment seems to establish, a fortiori, that the use of urgent procedures (la procédure de référé) to expel Roma and travelers is almost always incompatible with Article 8. In French law, the procédure de référé can be used to obtain a short-term expulsion order when the matter is urgent or whether there is a manifestly illegal disturbance. In Winterstein, the judge seized of the matter through the urgent procedure rejected the request, finding that there was no urgency or manifest illegality. However, the procédure de référé remains the preferred method the French authorities use to evict Roma, and it usually works (particularly in cases where the land is public or owned by a third party). This often leaves Roma with just a few days’ notice before they have to leave and leaves no time for an adequate examination of the proportionality of the eviction. Given that the much lengthier procedure in this case was incompatible with Article 8, it seems that the use of urgent procedures is also likely to violate the Convention.

*Judit Geller works as a lawyer for the ERRC, ** Adam Weiss is a legal director at the ERRC

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