European Social Charter Housing Rights Victory for Roma
18 June 2007
In a landmark decision issued by European Committee of Social Rights, Bulgaria was found in violation of the European Social Charter in the field of housing. The ruling, made public on 30 March 2007, established that Bulgaria systematically denies Roma access to adequate housing. The European Roma Rights Centre brought the complaint against Bulgaria in April 2005 under Articles 16 and E of the European Social Charter, and the petition was declared admissible by the Committee in October 2005.
Article 16 (The right of the family to social, legal, and economic protection) states, "With a view to ensuring the necessary conditions for the full development of the family, which is a fundamental unit of society, the Parties undertake to promote the economic, legal and social protection of family life by such means as social and family benefits, fiscal arrangements, provision of family housing, benefits for the newly married and other appropriate means."
Article E (non-discrimination) states, "The enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status."
In its complaint, the ERRC alleged that Bulgaria discriminates against Roma in the field of housing resulting in racially segregated housing of Roma in the country, substandard housing conditions with inadequate infrastructure, lack of legal security of tenure, and forced evictions.
In its responses, the Bulgarian government requested that the complaint be determined unfounded. The government considered that non-Roma also live in difficult housing circumstances, thereby rendering claims of discriminatory practices and policies groundless, and disputed the ERRC's claim that legislation in the field of housing is discriminatory against Roma. The Bulgarian government requested that the Committee acknowledge the on-going legislative and practical measures implemented by the government for the integration of vulnerable population groups, including Roma, with respect to housing.
As outlined in its decision, the Committee considered that the ERRC's complaint raised two specific issues:
- the inadequate housing situation of Romani families and the lack of proper amenities; and
- the lack of legal security of tenure and the forced eviction of Romani families from sites or dwellings which they unlawfully occupied.
Related to the inadequate housing situation of Romani families and the lack of proper amenities, the Committee found the following:
"The Committee considers that the effective enjoyment of certain fundamental rights requires a positive intervention by the state: the state must take the legal and practical measures which are necessary and adequate to the goal of the effective protection of the right in question (emphasis added). States enjoy a margin of appreciation in determining the steps to be taken to ensure compliance with the Charter, in particular as regards to the balance to be struck between the general interest and the interest of a specific group and the choices which must be made in terms of priorities and resources (mutatis mutandis most recently European Court of Human Rights, Ilascu and others v. Moldova and Russia, judgment of 8 July 2004, § 332). Nonetheless, "when the achievement of one of the rights in question is exceptionally complex and particularly expensive to resolve, a State Party must take measures that allows it to achieve the objectives of the Charter within a reasonable time, with measurable progress and to an extent consistent with the maximum use of available resources" (Autism-Europe v. France, Complaint N° 13/2002, decision on the merits of 4 November 2003, § 53).
The Committee finds that the inadequate housing situation of Roma families as alleged by the complainant and recognised by the Government, demonstrated that legal and practical measures were necessary to redress such situation.
The Committee has examined all the information submitted by the parties and, in particular, taking into account the "National Programme for improvement of the living conditions of Roma in the Republic of Bulgaria for the period 2005-2015", summarized in the Government response of 19 July 2006. It finds that the measures foreseen by this above-mentioned programme could result in meeting the three above-mentioned criteria. However, it considers that the Government did not provide enough evidence that the various programmes and action plans concerning Roma adopted so far are being effectively implemented. In particular, it observes that the National Programme mentioned above is the last one of a series which date back to 1999 (the Framework Programme for Equal integration of the Roma in the Bulgarian Society) and which has been subsequently embedded in the 2005 National Action Plan on the Decade (NAPD). Notwithstanding the clear political will expressed by the Government to improve the housing situation of Roma families, all these programmes and their implementing measures have not yet yielded the expected results (emphasis added).
Moreover, the Committee observes that in its response of 19 July 2006 the Government admits that, for the time being, the situation is not in compliance with Article 16 of the Revised Charter and that it hopes this will change in a reasonable period of time, proof of which there are timetables and schedules. Although the Committee recognises that the effective implementation of the right to housing may require time, it also finds that given the urgency of the housing situation of Roma families a time frame of six years (1999-2005) should had been enough to realise significant improvements.
The Committee recalls that Article E enshrines the prohibition of discrimination and establishes an obligation to ensure that, in the absence of objective and reasonable justifications (see paragraph E, Part V of the Appendix), any individual or groups with particular characteristics benefit in practice from the rights in the Charter. In the present case this reasoning applies to Roma families. Moreover, as the Committee stated in stated in the Autism-Europe decision (Autism-Europe v. France, Complaint N° 13/2002, decision on the merits of 4 November 2003, § 52), "Article E not only prohibits direct discrimination but also all forms of indirect discrimination. Such indirect discrimination may arise by failing to take due and positive account of all relevant differences or by failing to take adequate steps to ensure that the rights and collective advantages that are open to all are genuinely accessible by and to all".
The Committee recalls that in its decision on the right to housing of Roma in Italy it held that "equal treatment implies that Italy should take measures appropriate to Roma's particular circumstances to safeguard their right to housing and prevent them, as a vulnerable group, from becoming homeless" (ERRC v. Italy, Complaint No. 27/2005, decision on the merits of 7 December 2005, § 21). It further developed the state's positive obligation with respect to access to social housing where it found Italy in violation of the Charter because of "its failure to take into consideration the different situation of Roma or to introduce measures specifically aimed at improving their housing conditions, including the possibility for an effective access to social housing" (ERRC v. Italy, Complaint No. 27/2005, decision on the merits of 7 December 2005, § 46).
In all its submissions the Government emphasised that Bulgarian legislation provides adequate safeguards for the prevention of discrimination. However, the Committee finds that in the case of Roma families, the simple guarantee of equal treatment as the means of protection against any discrimination does not suffice. As recalled above, the Committee considers that Article E imposes an obligation of taking into due consideration the relevant differences and acting accordingly. This means that for the integration of an ethnic minority as Roma into mainstream society measures of positive action are needed (emphasis added).
The Committee therefore holds that the situation concerning the inadequate housing of Roma families and the lack of proper amenities constitutes a violation of Article 16 taken together with Article E."
Related to lack of legal security of tenure and the forced eviction of Roma families from sites or dwellings unlawfully occupied by them, the Committee found:
"The Committee recalls that "illegal occupation of a site or dwelling may justify the eviction of the illegal occupants. However the criteria of illegal occupation must not be unduly wide, the eviction should take place in accordance with the applicable rules of procedure and these should be sufficiently protective of the rights of the persons concerned" (ERRC v. Greece, Complaint No. 15/2003, decision on the merits of 8 December 2004, § 51).
It also recalls that "States Parties must make sure that evictions are justified and are carried out in conditions that respect the dignity of the persons concerned, and that alternative accommodation is available (see Conclusions 2003, Article 31§2, France, p. 225, Italy, p. 345, Slovenia, p. 557, and Sweden, p. 653). The law must also establish eviction procedures, specifying when they may not be carried out (for example, at night or during winter), provide legal remedies and offer legal aid to those who need it to seek redress from the courts. Compensation for illegal evictions must also be provided" (ERRC v. Italy, Complaint No. 27/2005, decision on the merits of 7 December 2005, § 41).
Furthermore, the Committee observes that a person or a group of persons, who cannot effectively benefit from the rights provided by the legislation, may be obliged to adopt reprehensible behaviour in order to satisfy their needs. However, this circumstance can neither be held to justify any sanction or measure towards these persons, nor be held to continue depriving them of benefiting from their rights (emphasis added).
The Committee finds that the legislation allowing, inter alia, the legalisation of illegal constructions did exist (2001 Territorial Planning Law), but that it set conditions too stringent to be useful in redressing the particularly urgent situation of the housing of Roma families (respect of constructions' safety and hygiene rules, official documents attesting property, residence in the district for more than five years), a situation which is also recognised by the Government. Moreover, the Committee considers that it follows from the fact that illegal Roma settlements have been existing for many years and that, though not uniform, provision of public services, such as electricity, was ensured and inhabitants charged for it, that state authorities acknowledged and tolerated de facto the actions of Roma (mutatis mutandis European Court of Human Rights, Oneryildiz v. Turkey of 30 November 2004, § 105 and §§127-128).
Accordingly, though state authorities enjoy a wide margin of appreciation as to the taking of measures concerning town planning, they must strike the balance between the general interest and the fundamental rights of the individuals, in the particular case the right to housing and its corollary of not making individual[s] becom[e] homeless (emphasis added).
The Committee finds that the current legislation on the legalisation of dwellings affects Roma families in a disproportionate manner. By strictly applying the rules on legalisation to Roma, whose situation also differs as a consequence of the state non-intervention over a certain period (regarding property documents, or the respect of construction safety and hygiene rules), Bulgaria has discriminated against Roma families by failing to take due consideration of the specificity of their living conditions. As regards eviction, which is the consequence of the non-legalisation of dwellings, the Committee finds that while it is true that legislation exists and it includes judicial redress, it does not address properly the specific situation of Roma families, with the exception of the suspended eviction of the Vazrazhdane (Sofia). In particular the Committee observes that though in certain cases the Roma evicted were provided with alternative accommodation or compensation, these measures, on the one hand, did not concern all families involved because of the conditions set by the law; and on the other hand, accommodation was either substandard or of a temporary nature (vans, barracks or municipal dwellings whose rent was too expensive for low income families such as Roma). The Committee recalls that it is the responsibility of the state to ensure that evictions, when carried out, respect the dignity of the persons concerned even when they are illegal occupants, and that alternative accommodation or other compensatory measures are available. By failing to take into account that Roma families run a higher risk of eviction as a consequence of the precariousness of their tenancy, Bulgaria has discriminated against them. The Committee holds that the situation constitutes a violation of Article 16 in combination with Article E because Roma families are disproportionately affected by the legislation limiting the possibility of legalising illegal dwellings; and the evictions carried out did not satisfy the conditions required by the Charter, in particular that of ensuring persons evicted are not rendered homeless.
This decision is an important step towards rectification of the disadvataged situation faced by Roma in regards to housing and accommodation. By acknowledging that Bulgaria's policies were in specific violation of Articles 16 and E of the European Social Charter, the Committee's decision paves the way for improved access to universal human rights as set out in the European Social Charter.