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FOURTH
SECTION
CASE OF
YORDANOVA AND OTHERS v. BULGARIA
(Application
no. 25446/06)
JUDGMENT
STRASBOURG
24 April
2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Yordanova and Others v. Bulgaria,
The
European Court of Human Rights (Chamber),
sitting as a Chamber composed of:
Lech
Garlicki,
President,
David
Thór Björgvinsson,
Päivi
Hirvelä,
George
Nicolaou,
Ledi
Bianku,
Zdravka
Kalaydjieva,
Vincent
A. De Gaetano,
judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 7 February 2012 and 3 April 2012,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 25446/06)
against the Republic of Bulgaria lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by
twenty-three Bulgarian nationals whose names are listed
in the annex to this judgment (“the
applicants”), on 23 June 2006.
2. The
applicants were represented by Ms M. Ilieva, a lawyer practising in
Sofia. The Bulgarian Government (“the Government”)
were represented by their Agents, Ms S.
Atanasova and Ms M. Kotzeva, of the Ministry of Justice.
3. The
applicants alleged, in particular, violations of Articles 3 and 8 of
the Convention and Article 1 of Protocol No. 1, taken alone and in
conjunction with its Articles 13 and 14, in relation to the
authorities’ decision to remove them from their homes in
Batalova Vodenitsa.
4. On
8 July 2008 the Court indicated interim measures to the Bulgarian
Government under Rule 39 of the Rules of Court. Upon receipt of
assurances from the Bulgarian Government, on 23 July 2008 the Court
lifted those measures (see paragraphs 49-53 below). By a decision of
14 September 2010, the Court declared the application partly
admissible and partly inadmissible.
- The
applicants and the Government each filed further written observations
(Rule 59 § 1) on the merits. The Chamber having decided, after
consulting the parties, that no hearing on the merits was required
(Rule 59 § 3 in fine),
the parties replied in writing to each other’s
observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The relevant background
1. The applicants’ homes
- The
applicants are residents of Batalova Vodenitsa, a neighbourhood of
Sofia. They describe themselves as being of Roma origin.
- Unlike
some other European countries, where the Roma often have an itinerant
way of life, in Bulgaria, at least since the 1960s, the great
majority of the Roma live a settled life. Typically, Bulgarian towns
feature one or more predominantly Roma neighbourhoods in non-central
areas.
- Some
of the applicants or their parents and in some cases their
grand parents moved to Batalova Vodenitsa at the end of the
1960s and in the 1970s. Others are more recent arrivals who settled
there in the 1990s.
- In
the 1960s land in the neighbourhood in question was expropriated by
the State and cleared in the context of the authorities’
housing construction policy. A number of blocks of flats were
constructed there, but the plots currently inhabited by the
applicants remained vacant, having been earmarked for a green area,
which was never landscaped.
- The
applicants’ families built their homes on State land without
any authorisation. The area thus gradually developed into a small
Roma settlement. It appears that between 200 and 300 persons live
there.
- Most
of the buildings are single-storey houses. There is no sewage or
plumbing. The inhabitants use water from two public fountains.
- Most
applicants’ registered addresses are at their homes in Batalova
Vodenitsa. Many of them are registered at one and the same address
although they live in separate buildings which do not figure on any
official area plan. Most of the applicants live in their houses with
their families, including young children or grandchildren.
- The
applicants never sought to regularise the buildings they had
constructed. This was in principle possible through applications for
building permits and planning approval. According to the applicants,
making such applications was difficult for them as they are poor and
live their lives in the Roma community, isolated from the rest of
society.
- It
is undisputed by the parties that the applicants’ homes do not
meet the basic requirements of the relevant construction and safety
regulations and cannot be legalised without substantial
reconstruction.
- In
1987 the local building plan was amended and the construction of
dwellings was envisaged on the plots in question. The plan was never
implemented.
- Following
a legislative reform, in 1996 the land occupied by the applicants
became the property of the Sofia municipality.
- Until
2005, the State and municipal authorities never took steps to remove
the applicants and their families.
- Under
the relevant law the applicants cannot obtain ownership of the land
they occupy. Until 1996 the provisions on acquisitive prescription
did not apply in respect of State and municipal land. Since 1996,
these provisions, under which a ten-year period of possession may
suffice for the acquisition of real property, apply to most
categories of municipal land. However, in 2006, shortly before the
expiry of ten years after the 1996 amendment, Parliament suspended
the running of prescription periods in respect of State and municipal
land. The suspension has been extended several times and is currently
in force until 31 December 2014 (sections 79 and 86 of the Property
Act and the transitional provisions thereto).
- According
to a statement by a Mr B. T., a Roma resident of Batalova Vodenitsa,
his parents are the lawful owners of their house there and possess a
notarial deed. A copy of the notarial deed has not been submitted by
the applicants. Neither Mr B.T. nor his parents were among the
addressees of the removal order of 17 September 2005 (see paragraph
31 below).
2. Complaints by third persons, public declarations, protests
and media coverage
- From
the beginning of the 1990s tension grew in several regions of Sofia
between the inhabitants of Roma settlements and their non-Roma
neighbours. The issue of Roma settlements, often referred to as
“ghettos”, was widely debated in the media. Many
commentators urged the emptying of all “Roma ghettos” in
Sofia. This line was supported by a number of leading politicians.
Occasionally, the views of Roma organisations were also published.
- Between
2003 and 2006 several demonstrations were held by non-Roma residents
of different areas in Sofia seeking the eviction of their Roma
neighbours. Other demonstrations were held by non-Roma persons
protesting at news of plans by the authorities to resettle in their
neighbourhoods Roma families to be removed from other parts of the
city.
- It
appears that on an unspecified date non-Roma residents of Batalova
Vodenitsa formed an association with the aim to bring pressure to
bear on the authorities in relation to the applicants’ unlawful
settlement.
- Most
complaints against the Roma inhabitants of Batalova Vodenitsa
concerned sanitary risks and repulsive odours caused by the absence
of sewage and the fact that the inhabitants kept animals (allegedly
including sheep, pigs, hens and horses). Also, many non-Roma
residents of the area believed that the Roma inhabitants were
responsible for numerous offences, including physical assault, theft
and damage to public and private property. The protesters also
resented on aesthetic grounds the presence of unsightly shanty houses
in the area.
- The
municipal authorities in Sofia perceived as a serious problem the
fact that since 1990 many Roma had moved to Sofia and settled in
illegal Roma settlements, thus increasing their overpopulation and
generating more illegal construction and sanitary problems.
B. The decision to remove the
applicants and the ensuing judicial proceedings
- In
March 2000 an unspecified number of individuals, apparently persons
who had obtained decisions restoring their property rights over
expropriated land in the Batalova Vodenitsa area, complained to the
Sofia municipal council that “persons of Roma origin”
were unlawfully occupying land in the area. Having examined the
matter, on 11 December 2000 the municipal council decided to offer
the restored owners other municipal land in exchange for their land.
It also invited the mayor of Sofia to develop a plan for the
resolution of the “problem as a whole”. No such plan
appears to have been adopted.
- In
2003 the local building plan in Batalova Vodenitsa was modified by
the municipal authorities, who planned to develop the area.
- On
2 March 2005 the Sofia municipal council approved in principle the
transfer of title to plots of land in Batalova Vodenitsa to Mr K., a
private investor. The transfer was effected on 16 May 2006. The plots
of land in question were adjacent to the land occupied by the
applicants. It is unclear whether Mr K. ever realised any development
project.
- On
29 August 2005 municipal officials visited the Batalova Vodenitsa
neighbourhood and issued a document certifying that the applicants
and other persons occupied the land.
- On
8 September 2005, Ms S., the district mayor, invited all or almost
all residents – approximately 180 Roma, including the
applicants – to leave their homes within seven days as they
were occupying municipal land unlawfully. The text referred to
section 65 of the Municipal Property Act and contained a list of the
names of its addressees and also a warning that failure to comply
would result in removal by the police.
- The
applicants filed an appeal. On 15 September 2005 municipal officials
issued a document certifying that the residents concerned had not
left the area.
- As
a result, on 17 September 2005 the mayor ordered their forcible
removal on 27 September 2005. The order listed individually the names
of all those concerned. The mayor also stated her intention to secure
a decision for the demolition of the applicants’ houses in
accordance with the Building Planning Act (Закон
за устройство
на територията).
- The
applicants asked the Sofia City Court to stay their removal pending
the examination of their appeal against the removal order. The court
granted their request.
- On
28 September 2005 a committee representing the Roma residents of the
area signed an agreement with the municipal authorities in Sofia
according to which the municipality would offer alternative housing
to the persons registered as Batalova Vodenitsa residents, whereupon
they would be removed. No action was taken by the municipality in
execution of this agreement.
- The
agreement also provided that the committee of representatives would
take measures to improve hygiene in the Roma settlement. They also
undertook to organise the removal of unauthorised domestic animals
kept by residents and keep better order. According to the Government,
the situation did not improve.
- In
the judicial proceedings against the mayor’s order, on 12
January 2006 the Sofia City Court ruled that the removal order was
lawful. The applicants appealed. On 12 June 2006, the Supreme
Administrative Court upheld the City Court’s judgment.
- The
courts found that the fact that the applicants had not shown a valid
legal ground for occupying the land was sufficient to establish that
the removal order was lawful. If the applicants considered that they
had property rights, it was for them to seek notarial deeds or bring
civil proceedings to establish those alleged rights. They had not
done so. In these circumstances and having regard to section 92 of
the Property Act, their houses were owned by the municipality.
- The
courts also stated that the applicants’ allegations about
violations of the Convention and discrimination were groundless.
- The
courts ignored as irrelevant under domestic law the applicants’
argument that they should not be removed because they had lived in
the area for decades with the authorities’ acquiescence, and
their arguments based on the principle of proportionality.
C. Attempt to remove the applicants in 2006
- On
21 June 2006, the municipal authorities announced their intention to
evict the unlawful residents of Batalova Vodenitsa, including the
applicants, by 28 June and to demolish their homes. On 22 June 2006
the district mayor was reported in the press as having stated that
the removal order had been issued as a result of numerous complaints
by neighbours in relation to the unlawful settlement.
- As
a result of political pressure, mainly from members of the European
Parliament, the authorities did not proceed with the eviction.
- In
their public declarations the municipal authorities apparently took
the stand that the removal of the Batalova Vodenitsa residents was
overdue but could not be done immediately because of pressure “from
Europe”. Divergent opinions were expressed as to whether the
municipality should try to find alternative housing for the residents
of Batalova Vodenitsa. In public declarations the mayor of the
district stated that this was not possible because the residents
concerned had not been registered as persons in need of housing and
the municipality could not give them priority over other people who
had been on the waiting list for many years.
- On
an unspecified date shortly after 12 June 2006, Ms S., the mayor of
the relevant district, participated in a televised debate concerning
the fate of the Roma settlement in Batalova Vodenitsa. She stated,
inter alia, that the Roma inhabitants there did not have the
right to be registered as persons in need of housing because they
were occupying municipal land unlawfully. For that reason, she would
not offer them the tenancy of municipal dwellings, there being many
other families on the waiting list. The district mayor further stated
that the agreement of 28 September 2005 between the mayor of Sofia
and a committee of representatives of the Roma families “had
been concluded in a pre-electoral period” and that she did not
consider herself bound by it. She also stated that the removal order
had been upheld by the courts and must be enforced; the fact that the
persons concerned had nowhere to go was irrelevant. The mayor further
stated that she had received complaints by non-Roma inhabitants of
the area and was under a duty to act.
- Most
of the applicants have not tried to make arrangements to find new
homes for their families. Between 2004 and 2007 three of the
applicants registered at addresses in other areas of Sofia. In 2005
one of the applicants declared an address in the town of Sandanski as
her official address. According to these four applicants, although
for short periods they lived outside Batalova Vodenitsa, in dwellings
occupied by relatives, their only real home had remained Batalova
Vodenitsa.
- It
appears that after June 2006 negotiations continued between the Roma
inhabitants and the municipal authorities regarding possible
relocation in temporary municipal housing of those persons in the
applicants’ position who had been registered as resident in
Batalova Vodenitsa before 1996. Non-governmental organisations
defending the rights of the Roma and Government representatives also
took part.
- Information
about intentions to resettle the Batalova Vodenitsa unlawful
residents have met with strong opposition from inhabitants of
neighbourhoods where such relocation was envisaged. It appears that
no viable resettlement plan has ever been elaborated.
- In
interviews and statements, local officials supported the non-Roma
population. In a radio interview in November 2006, the mayor of Ovcha
Kupel district in Sofia stated that “the nuisance that a Roma
settlement would create [if Roma families were to move into his
district] would surpass by far the inconvenience that a refuse tip
would create”. He also stated that “Roma families could
not expect to live among the citizens as they did not have the
necessary culture”.
D. Attempt to remove the applicants in 2008 and
developments since then
- On
27 June 2008 the municipal authorities served a notice on the
inhabitants of the area, including the applicants, requiring them to
leave their houses by 10 July 2008, failing which they would be
evicted forcibly on 11 July 2008.
- The
notice was issued in execution of the removal order of
September 2005, which was final and enforceable.
- On
8 July 2008 the Court indicated to the Government of Bulgaria, under
Rule 39 of the Rules of Court, that the applicants should not be
evicted from their houses until 23 July 2008, pending receipt by the
Court of detailed information about any arrangements made by the
authorities to secure housing for the children, elderly, disabled or
otherwise vulnerable individuals to be evicted.
- The
Government submitted a copy of a statement by Ms S., the district
mayor, who indicated that two local social homes could provide five
rooms each and that several elderly persons could be housed in a
third home. There was no information about any possibility to house
families together.
- Also,
it appears that none of the applicants was willing to be separated
from the community and housed in such conditions, not least because
it was impossible, according to them, to earn a living outside the
community.
- On
22 July 2008 Ms S., the district mayor, stated that she had suspended
the enforcement of the removal order “pending the resolution of
the housing problems of the Batalova Vodenitsa residents”. The
order was not quashed.
- In
the light of this information, the President of the Court’s
Fifth Section decided on 23 July 2008 to lift the interim measure of
8 July 2008, specifying that the decision was taken on the assumption
that the Court and the applicants would be given sufficient notice of
any change in the authorities’ position for consideration to be
given to a further measure under Rule 39 of the Rules of Court.
- On
23 July 2008 the National Council for Cooperation on Ethnic and
Demographic Issues, which includes representatives of
non-governmental organisations and is presided over by the Director
of the Ethnic and Demographic Matters Directorate at the Council of
Ministers, discussed the issue. Representatives of the Sofia
municipality were advised to refrain from measures seeking to resolve
the problem in Batalova Vodenitsa at the expense of creating tension
in other areas. The majority view was that the Roma families living
in Batalova Vodenitsa should not be evicted and their homes should
not be demolished before a lasting solution was found.
- According
to a letter from the Director of Ethnic and Demographic Matters, sent
in January 2009 in connection with the present application, the Sofia
municipality was working on a programme for the revitalisation of
Roma neighbourhoods. It was envisaged to construct temporary housing
on several municipal plots of land. Partial initial financing of the
construction work could be provided by the Government but other
sources were needed as well. It was envisaged to encourage the Roma
applying for housing to take jobs in the construction work under the
relevant social employment schemes. The project’s elaboration,
including architectural plans, was allegedly under way. The project
concerned Roma families who moved to Batalova Vodenitsa before 1996.
Those who settled there more recently had “to return to their
previous homes”.
- On
12 January 2010, in reply to a letter from residents protesting
against the authorities’ failure to evict their Roma neighbours
from Batalova Vodenitsa, Ms S., the district mayor, stated that the
enforcement of the 2005 eviction order had been postponed under
pressure from members of the European Parliament and that the
applicants had started proceedings in the European Court of Human
Rights. The letter did not mention plans to secure alternative
housing for the persons to be evicted.
- According
to media reports, in May 2010 plans to resettle the inhabitants of
Batalova vodenitsa on other State or municipal property were
discussed by the municipal authorities.
- In
their latest submissions of December 2010 the parties have not
reported any progress in the realisation of such projects.
- According
to the applicants, the resettlement plans mentioned by the
authorities are nothing more than empty promises.
E. Other relevant facts
- In
March 2006 a ten-year National Programme (2005-2015) for the
Improvement of the Housing Conditions of Roma in Bulgaria was adopted
by the Council of Ministers in the context of the international
initiative entitled Decade of Roma Inclusion 2005–2015.
- In
September 2007, the Sofia municipal council adopted a plan for the
implementation of the ten-year national programme in Sofia for the
period 2007-2013. The document includes an analysis of the existing
situation in respect of housing.
- According
to this analysis, overpopulated Roma settlements had formed over the
years in Sofia and nothing had been done by the authorities in the
past to address the ensuing problems. Having always been a
marginalised group with minimal resources, the Roma cannot in
practice acquire real property. Traditionally they occupy vacant land
and construct makeshift huts. Although most of them, being persons in
need of housing, meet the relevant criteria for tenancy of municipal
housing, this option does not work in practice owing to several
factors, including the limited number of available municipal
dwellings and unwillingness on the part of many Roma families to
resettle in municipal flats. Their unwillingness could be explained
partly by the lack of the necessary resources to cover the related
expenses, such as utility bills, and partly by the animosities which
often erupt between non-Roma residents of blocks of flats and Roma
families moving in.
- The
ten-year National Programme and the 2007-2013 Sofia plan provide for
the following actions, among others: elaborating municipal housing
programmes, legalising buildings if they meet the relevant
construction standards, constructing sewage and water-supply
facilities in Roma neighbourhoods and providing information and
assistance to those who apply for municipal housing.
- The
2010 Monitoring report on the implementation of the Decade of Roma
Inclusion 2005–2015 programme does not mention any progress
having been made in respect of Roma housing. The concluding text of
the report contains a recommendation to the relevant institutions and
stakeholders to make timely use of the possibilities under Article
7(2) of Regulation (EC) No. 1080/2006 on the European Regional
Development Fund.
- According
to media reports, in several regions in Bulgaria construction works
are under way for the building of dwellings intended to house Roma
who have been removed or are to be removed from land which they
occupy unlawfully.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Section
65 of the Municipal Property Act empowers the mayor to order the
repossession of real property belonging to the municipality and
occupied by others if they have no legal right to occupy it. The
mayor’s order is amenable to judicial appeal. Its enforcement
is effected by the police.
- The
new paragraph 5 of section 65, added in May 2008, provides that
persons occupying municipal real property without a legal basis
cannot avail themselves of sections 72-74 of the Property Act, which
bestow certain rights on holders of property belonging to another
(under certain conditions, the right to reimbursement for
improvements, and to withhold the property pending such
reimbursement).
- According
to section 92 of the Property Act, read in conjunction with its other
provisions, buildings belong to the owner of the land except where
the right to construct a building has been lawfully conveyed by the
owner to another person. Prior to 1996 it was not possible under
Bulgarian law to acquire State or municipal property through adverse
possession. Since 1996, state and municipal property, if it is of the
category of “private state property”, may in principle be
acquired by private persons through adverse possession, under a
number of conditions. Through a transitory provision introduced in
2006, the running of the ten-year prescription period was suspended
and the suspension is still in force.
- The
categorisation of persons in need of housing and the possibility of
applying for municipal housing are governed by municipal regulations
issued by each municipality in accordance with section 45a of the
Municipal Property Act. These regulations, which differ from city to
city, usually require candidates to have had their registered address
in the town for more than five years, to have no real property of
their own, and to have resources that do not exceed a certain
maximum. Typically the application must be made in writing on a form
and be accompanied by a number of documents. The decision whether to
recognise the need is taken by a municipal commission and is amenable
to judicial appeal. Among the candidates recognised as being in need
of housing, homeless persons and those living in dangerous and
unhealthy conditions have priority.
- In
accordance with sections 43 and 45 of the Municipal Property Act, an
emergency stock of municipal flats may be used to house for up to two
years persons whose dwellings are unsafe as being in danger of
collapsing and persons with severe social or health problems.
- Under
sections 4 and 5 of the Protection against Discrimination Act, in
force since 1 January 2004, racially offensive statements may be
considered discriminatory. The victim may file a complaint with the
Commission for Protection against Discrimination (see, for example,
Decision no. 178 of 25 July 2008, where that commission
established that the anti-Roma language used in a television
broadcast of 24 February 2007 amounted to prohibited discrimination)
or bring an action in court. Racially offensive statements may be
criminally punishable under Articles 146 and 148 of the Criminal
Code. The proceedings must be initiated by the victim. Separately,
incitement to racial hatred is an offence punishable under Article
162 of the Criminal Code.
- At
the time when the removal order of 17 September 2005 was issued and
reviewed by the domestic courts, Bulgarian administrative procedure
law did not enshrine the principle of proportionality. Since July
2006, when the Code of Administrative Procedure entered into force,
this principle is set out in Article 6 of the Code.
III. RELEVANT INTERNATIONAL MATERIAL
A. The Council of Europe
- On
18 October 2006 the Council of Europe’s European Committee of
Social Rights delivered a decision on the merits of a complaint
against Bulgaria brought by the European Roma Rights centre, a
non-governmental organisation. The Committee found, inter alia,
that “the lack of legal security of tenure and the non-respect
of the conditions accompanying eviction of Roma families from
dwellings unlawfully occupied by them constitute[d] a violation of
Article 16 of the Revised European Social Charter, taken together
with Article E”. Article 16 concerns the right of families to
“appropriate social, legal and economic protection” and
Article E prohibits discrimination in the enjoyment of the
rights set forth in the Charter.
- To
reach its conclusion, the Committee found that the Bulgarian
legislation allowing the legalisation of illegal constructions set
conditions “too stringent to be useful in redressing the
particularly urgent situation of the housing of Roma families”,
a situation recognised by the Bulgarian Government. The Committee
also considered that the authorities had tolerated the unlawful Roma
settlements for long periods and were accordingly obliged to
carefully balance town planning measures against “the right to
housing and its corollary of not making individual[s] homeless”.
The Committee further found that by failing to take into
consideration the specificity of the living conditions of Roma and
strictly applying the rules on legalisation of buildings to them,
Bulgaria had discriminated against Roma families, whose situation
differed not least as a consequence of State non-intervention over a
certain period. Similarly, there was discrimination on account of the
authorities’ failure to take into account that Roma families
ran a higher risk of eviction, and the authorities’ failure
systematically to find alternative accommodation for the evicted
families.
- On
5 September 2007 the Committee of Ministers of the Council of Europe
adopted a resolution in the case in which it noted, inter alia,
the Bulgarian delegation’s statement before it that Bulgaria
intended to amend the Territorial Planning Act to allow for easier
legalising of existing buildings and construction of social housing.
- In
its 2005 Recommendation on improving the housing conditions of Roma
the Committee of Ministers of the Council of Europe called upon
member States, inter alia, to use proportionate response to
illegal Roma settlements and seek, where possible, solutions
acceptable for all parties. Also, eviction measures should include
consultation with the community or individual concerned, reasonable
notice, provision of information, a guarantee that the eviction will
be carried out in a reasonable manner and alternative housing
measures. As to daily life in existing settlements, the authorities
should provide the same level of services as to other groups of the
population and should, beyond that, promote better management
including adequate management of neighbourhood conflicts. Housing
policies should be tailored to the specific situations of the Roma
communities.
- In
its 2008 Recommendation on policies for Roma and/or Travellers in
Europe, the Committee of Ministers of the Council of Europe called
upon Member States, inter alia, to ensure that decisions
adopted by local authorities in the relevant area would not have a
discriminatory effect on Roma.
- In
its Resolution 1740(2010) on the situation of Roma in Europe and
relevant activities of the Council of Europe, the Parliamentary
Assembly of the Council of Europe noted with concern that the process
of Roma integration in Europe had not reached its objectives over the
last twenty years, that Roma people were still regularly victims of
intolerance, discrimination and rejection based on deep-seated
prejudices and that the situation of Roma with regard to education,
employment, housing, health care and political participation was far
from satisfactory. The Assembly stated that adopting national
strategies was insufficient in the absence of implementation measures
at local and regional levels. It urged member States, inter alia,
to promote a positive image of diversity, address stereotypes and
prejudices, react strongly to racist discourse by public officials
and tackle hate speech vis-à-vis Roma, be it in the media,
politics or in civil society. As regards housing, the Assembly urged
member States to take urgent measures to prevent forced evictions of
Roma camps and settlements and – in cases of unavoidable
evictions – ensure that such evictions were carried out only
when all procedural protections required under international human
rights law were in place, including the provision of adequate
alternative housing and compensation for expropriation and losses of
moveable possessions damaged in the process of eviction and, in the
absence of such procedural protections in the existing domestic law,
introduce legislation on evictions providing safeguards and remedies
in accordance with international standards.
- The
Council of Europe’s Commissioner for Human Rights, in his 2009
Recommendation on the implementation of the right to housing stated,
inter alia, that States should specify in legislation that
positive measures are justified in order to promote full and
effective equality provided that there was an objective and
reasonable justification for such measures.
B. The European Union
- In
October 2009 the EU Agency for Fundamental Rights issued a
comparative report on the housing conditions of Roma and travellers
in the EU.
- According
to the report, significant numbers of Roma in Europe live in
unauthorised settlements. For example, in 2002 an estimated 70% of
houses in urban Romani developments in Bulgaria were illegally built,
in 1999 in Greece approximately 63,000 Roma lived in unregulated
encampments and in 2008 in France most Roma groups lived in squalid
shantytowns.
- The
report also mentioned cases of forced evictions of such encampments,
in particular in Italy and Greece.
C. The United Nations Organisation
- The
United Nations Committee on Economic, Social and Cultural Rights, in
its General Comment no. 7 concerning forced evictions and the right
to adequate housing under the International Covenant on Economic,
Social and Cultural Rights, stated, inter alia, that evictions
should not render persons homeless or more vulnerable to human rights
violations. Also, evictions must meet a number of conditions, such as
prior consultation with the persons to be evicted, the giving of
adequate and reasonable notice as to when the eviction will take
place and the availability of judicial remedies. If those evicted
cannot provide for themselves, States should take all reasonable
measures, utilising all available resources, to ensure the provision
of adequate alternative housing.
THE LAW
I. ALLEGED VIOLATIONS OF THE CONVENTION IN THE EVENT OF
ENFORCEMENT OF THE ORDER OF 17 SEPTEMBER 2005
- The
applicants alleged that if the order of 17 September 2005 was
enforced and they were removed from their homes in Batalova
Vodenitsa, that would amount to inhuman and degrading treatment
contrary to Article 3 and violate their right to respect for their
homes under Article 8. They further complained, relying on Article
13, that the authorities failed to consider proportionality issues
and, relying on Article 14, that their removal would be
discriminatory. They also complained that Article 1 of Protocol No. 1
would be violated.
A. The parties’ submissions
1. The applicants
- The
applicants submitted that the houses where they lived and had their
registered address were their homes regardless of the fact that they
had not been built lawfully. Nothing had been done for decades to
remove the applicants. For people as desperately poor and outcast as
them the expectation that the inactivity would last was a basis to
build lives on. The applicants had the right to respect for their
homes and deprivation of one’s home was a most extreme form of
interference with this right.
- The
applicants considered that the real aim pursued by the authorities
was to free the terrain so that it could be leased or sold to a
private entrepreneur for development and to “rid” the
district of an unwanted Roma “ghetto”. Those were
illegitimate aims.
- In
the applicants’ view, the Government’s attempt to use the
neighbours’ protests to justify the eviction order was based on
the fallacious assumption that the disorder and lack of sanitation
complained of could not be remedied as long as the applicants’
community was present. This was to assume that a Roma community such
as the applicants’ inherently produced disorder and pollution
and could not be controlled by ordinary policing. The racist nature
of this assumption which underlay the Government’s argument was
evident. While the issues raised in complaints by ethnic Bulgarian
neighbours were serious and a cause for concern, it was unacceptable
to seek to solve them through collective expulsion, without regard to
individual conduct. That would be nothing less than collective
punishment on the basis of ethnic origin.
- The
applicants stated that the authorities had never considered the
applicants’ personal circumstances, never consulted them before
issuing a removal order and never considered proportionality even in
theory. On the contrary, the authorities had openly and publicly
asserted that the applicants had no rights at all and that it had
been necessary to defend the rights of the non-Roma inhabitants who
wished to have the “ghetto” removed. On two occasions, in
2006 and in 2008, the authorities had sought to evict the applicants,
despite the September 2005 agreement under which they had
undertaken to provide shelter to the families concerned. That
agreement had always remained a dead letter. The history of the
problem and the authorities’ actions since 2005 had shown
beyond doubt that the majority public opinion and the authorities
were in favour of eviction, and that talk about a consensus towards
helping the Roma families concerned was without substance.
- The
applicants protested against the Government’s reliance on
private complaints in terms that disclosed clear racist prejudice,
presenting the problems in the neighbourhood as rooted in the racial
opposition between Roma and Bulgarians and seeking the unconditional
“return of the Roma to their native places”. Moreover, in
the applicants’ view, the Government’s submissions (see
paragraphs 92-99 below) were replete with statements disclosing
racial prejudice, such as their admission that the authorities sought
to avoid “concentration of large groups of Roma population”,
as if Roma people were a pest of sorts which needed to be kept to a
minimum. The Government assumed gratuitously that Roma people had
fraudulently taken advantage of municipal housing, or would do so.
They relied on racist initiatives such as a petition condemning
“discrimination against the Bulgarians”. The Government’s
appeal to the Court to bow to majority public opinion, which was in
favour of evicting the applicants, not only conflicted with
fundamental human rights principles but also showed that the
Bulgarian authorities were sensitive to, if not supportive of, public
prejudice against the Roma.
- In
the applicants’ view, the Government’s argument that
demolition of illegal constructions happened everywhere in Bulgaria,
regardless of ethnic origin, was not convincing. The examples given
by the Government concerned business properties or holiday retreats
owned by persons far wealthier than the applicants, not poor persons’
only homes. The relevant question was whether the authorities would
order the collective eviction of a non-Roma community of two hundred
persons, including children, without compensation and without
alternative shelter, leaving them on the street. In the applicants’
view, it was inconceivable that this should happen. The manner in
which the applicants were being treated was clearly linked to their
ethnic origin.
- Lastly,
the applicants stated that the houses they had built and their
belongings were “possessions” within the meaning of
Article 1 of Protocol No. 1 despite the fact that they did not
own the land.
2. The Government
- The
Government submitted that while for many years nothing had been done
to remove the Roma families who started settling in Batalova
Vodenitsa towards the end of the 1960s, it had always been clear that
they were occupying State and municipal land unlawfully. They did not
own the land and could not claim ownership on the basis of the fact
that they had built makeshift houses without authorisation and in
violation of building rules. The applicants could not claim,
therefore, that they had an expectation to be allowed to remain in
Batalova Vodenitsa. For long periods the authorities had not
implemented the urbanisation plans for the area, other matters having
had priority. This delay did not mean that the applicants’
illegal presence was tolerated.
- The
matter had become urgent when citizens living in the neighbourhood
had started complaining about the Roma families’ behaviour. In
support of the above, the Government submitted copies of handwritten
complaints by non-Roma residents of Batalova Vodenitsa. Most of them
were addressed personally to the Government’s agent in the
proceedings before the Court and were apparently drafted for the
purposes of the present proceedings on unspecified dates at the end
of 2008 or the beginning of 2009. They were entitled “complaints
by the Bulgarians living in Batalova Vodenitsa” and started
with the following words: “We complain against the Roma ...”.
The grievances made were that the Roma disposed of their waste in
various places, thus littering the area, kept animals, dried their
laundry by hanging it out for everyone to see, engaged in stealing
and disorderly and aggressive behaviour, drank and used drugs.
According to the text of the complaints, the signatories appealed to
have the Roma removed and “returned to their native places”,
although on visual examination of the copies submitted to the Court
it appears that these last words may have been added by the author of
the main text, either before or after the text had been signed by the
signatories.
- The
Government further maintained that the relevant authorities had
established that the applicants’ makeshift buildings posed a
sanitary risk, might collapse and did not meet fire safety
requirements. Having considered the matter, the Sofia municipality
had decided to remove the Roma settlement and go ahead with the plans
to construct blocks of flats in the area. Referring to the Court’s
judgment in the case of Öneryıldız v. Turkey [GC],
no. 48939/99, ECHR 2004 XII, the Government considered that had
the Bulgarian authorities remained inactive in the face of the safety
and sanitary risks that the applicants’ settlement represented,
they would have risked liability under the Convention for failure to
discharge their positive obligation to protect life and health.
- The
Government further stated that problems in the integration of the
Roma population were not uncommon and Bulgaria was not alone in this
respect. The authorities had demonstrated their determination to
secure equal rights for all citizens, irrespective of their origin.
The National Council for Cooperation on Ethnic and Demographic
Issues, which included representatives of non-governmental
organisations and was presided over by the Director of Ethnic and
Demographic Matters at the Council of Ministers, had dealt with the
problems in Batalova Vodenitsa. Detailed plans to help Roma families
find housing and jobs existed and were in the process of
implementation in many towns in the country, including districts of
Sofia. A relevant example was the creation in June 2008 of a special
working group at the Sofia municipality to deal with the demolition
of social dormitory buildings in another area, known as Selishte na
Stroitelia and Vietnamski Obshtezhitia. The buildings had been
damaged by their lawful and unlawful occupants, predominantly of Roma
origin, and the working group was seeking possibilities of finding
housing for them in separate districts of Sofia, “in order to
avoid large concentrations of Roma people”.
- The
Government thus stated that the relevant authorities were working to
find a lasting solution to the housing problem of the Roma families
concerned before reclaiming the municipal land they occupied in
Batalova Vodenitsa.
- The
Government also submitted that the decision to remove the applicants’
houses was motivated solely by the need to enforce the law on illegal
constructions and put an end to a situation which posed a sanitary
risk and disfigured the city landscape. The authorities in any
European capital would do as much. The applicants were not entitled
to privileged treatment because of their ethnic origin or traditional
lifestyle. They were not being treated in a discriminatory manner,
measures against illegal occupation being undertaken regardless of
the ethnicity of the persons concerned. The Government submitted
information about orders for the demolition of illegal constructions
in different parts of the country. Moreover, in their view, the
one-sided presentation of the problems of the Roma population in
Bulgaria by their self-appointed representatives seeking popularity
stirred tension and provoked reactions from other ethnic groups. The
Government were against such attempts to incite ethnic hatred. The
reality was that there were two sides in the dispute: the lawful
residents of the neighbourhood and the applicants, who occupied
municipal land without title and “whose way of life is in
contradiction with public norms and rules and in this sense generates
tensions in society”.
- The
Government also 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.
- Lastly,
noting that for short periods four of the applicants had registered
at addresses outside Batalova Vodenitsa, the Government submitted
that such changes could also be observed in respect of other Roma
inhabitants. Therefore, in the Government’s view, the
supposition could be made that some of the persons concerned had
“acquired flats”, sold them and then again registered in
Batalova Vodenitsa with the aim of obtaining municipal flats.
B. The Court’s assessment
- Considering
that the central issues in the present case concern the applicants’
rights under Articles 8 and 14 of the Convention, the Court will
examine these complaints first.
1. Article 8 of the Convention
- This
provision reads, in so far as relevant:
“1. Everyone has the right to respect for his
private and family life, his home ...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
(a) Whether the enforcement of the removal
order would interfere with rights protected by Article 8
- It
is undisputed that the applicants and their families have lived for
many years in the makeshift houses they or their ancestors built on
State or municipal land in Batalova Vodenitsa. While for unspecified
limited periods four of the applicants had their registered addresses
outside that area, it is not disputed that they returned (see
paragraphs 8, 12, 17, 43 and 99 above). The Government’s
suggestion that some of the Roma living in the area may have
registered there with the aim of obtaining municipal flats is not
supported by any evidence.
- In
these circumstances, the applicants’ houses in Batalova
Vodenitsa are their “homes” within the meaning of Article
8. This classification is a matter of fact independent of the
question of the lawfulness of the occupation under domestic law (see
McCann v. the United Kingdom, no. 19009/04, § 46, 13 May
2008). It follows that the applicants’ complaints concern their
right under Article 8 to respect for their homes.
- There
is no doubt that the 2005 removal order, if enforced, would result in
the applicants’ losing their homes and that, therefore, there
would be an interference with their right to respect for their homes
(see Ćosić v. Croatia,
no. 28261/06, § 18, 15 January 2009).
- Having
regard to the fact that the case concerns the expulsion of the
applicants as part of a community of several hundred persons and that
this measure could have repercussions on the applicants’
lifestyle and social and family ties, it may be considered that the
interference would affect not only their “homes”, but
also their “private and family life” (see, similarly,
Chapman v. the United Kingdom [GC], no. 27238/95, § 73,
ECHR 2001 I).
- The
Court must examine, therefore, whether such interference, if it
materialises, would be lawful and necessary in a democratic society
for the achievement of one or several of the legitimate aims set out
in paragraph 2 of Article 8.
(b) Lawfulness
- The
Court is satisfied that the impugned removal order has a valid legal
basis in domestic law (see paragraphs 29 and 66 above).
- The
question whether the applicable domestic legal framework and
procedures meet the relevant Convention requirements appears to be in
dispute. The Court will examine it below in the context of the
question whether the interference, if it materialises, would be
justified under Article 8 § 2.
(c) Legitimate aim
- The
applicants alleged in essence that the removal order did not pursue a
legitimate aim but was intended to benefit a private entrepreneur and
to satisfy racist demands to free the area of an unwanted Roma
settlement. The Government’s position was that the aim of the
measure was to recover illegally occupied municipal land, realise
plans for urban development and put an end to a situation involving
safety and health risks which had given rise to complaints.
- The
Court observes that the order of 17 September 2005 did not contain a
statement about its aim. It was based on a legal provision which
concerns recovering a real property from persons who are not
authorised to hold it (see paragraph 66 above). As it transpires from
statements made by the mayor of the relevant district and from the
Government’s submissions (see paragraphs 39, 42 and 92 above),
putting an end to the unlawful occupation of the land by the
applicants was, apparently, the main aim pursued by the impugned
order.
- As
the Court has previously stated, it is legitimate for the authorities
to seek to regain possession of land from persons who did not have a
right to occupy it (see McCann v. the United Kingdom, cited
above, § 48 and Connors v. the United Kingdom, no.
66746/01, § 69, 27 May 2004).
- Furthermore,
it is undisputed that the Batalova Vodenitsa settlement comprises
buildings which do not meet the relevant construction requirements
(see paragraphs 10-14 above). While it is true that the Government
have not submitted evidence of concrete and imminent construction
projects, there was a general intention on the part of the
authorities to use the land occupied by the applicants for urban
development. In particular, such plans for Batalova Vodenitsa had
been made and amended several times in the past, including well
before 2005 (see paragraphs 9, 15 and 26 above).
- Unlike
the applicants, the Court fails to see an indication of improper
motives in the authorities’ plans to transfer the land to a
private investor for development purposes (see paragraph 27 above).
Improvement of the urban environment by removing unsightly and
substandard buildings and replacing them with modern dwellings
meeting the relevant architectural and technical requirements is a
legitimate aim in the interests of economic well-being and the
protection of the health and the rights of others and may in
principle justify interference with rights under Article 8 of the
Convention (see a similar approach in Buckley v. the United
Kingdom, 25 September 1996, §§ 62 and 63, Reports of
Judgments and Decisions 1996 IV, and Chapman, cited
above, §§ 80-116).
- The
Court observes, in addition, that it is undisputed that the
applicants’ homes lack sewage and sanitary facilities. The
Government also alleged that there was a risk of some makeshift
houses collapsing. In the Court’s view, while there is no clear
evidence of the authorities having considered these issues from the
point of view of the needs of those most concerned – the
applicants –, it must be acknowledged that there is a
legitimate public interest in taking measures to cope with hazards
such as those that may stem from an unlawful settlement of makeshift
houses lacking sewage and sanitary facilities. Indeed, this was
admitted by representatives of the Batalova Vodenitsa residents in
the text of the agreement which they signed with the municipal
authorities on 28 September 2005 (see paragraphs 11 and 34
above).
- Lastly,
the Court finds unconvincing the applicants’ argument that the
authorities envisaged building plans as a mere pretext and that the
real aim of the removal order was nothing more than a racist attempt
to rid the area of the presence of all Roma. As noted above, there is
sufficient evidence of genuine plans for urban development in the
area and health and safety hazards and it is legitimate for the
authorities, in the interests of economic well-being and the
protection of health and of the rights of others, to seek to address
these problems.
- It
follows that the impugned measure, if enforced, would have a
legitimate aim under Article 8 § 2 of the Convention. The
salient issue in the present case concerns “necessity in a
democratic society” within the meaning of that provision and
the Court’s case-law.
(d) Necessity in a democratic society
i. General principles
- An
interference will be considered “necessary in a democratic
society” for a legitimate aim if it answers a “pressing
social need” and, in particular, if it is proportionate to the
legitimate aim pursued. While it is for the national authorities to
make the initial assessment of necessity, the final evaluation as to
whether the reasons cited for the interference are relevant and
sufficient remains subject to review by the Court for conformity with
the requirements of the Convention (see, among other authorities,
Smith and Grady v. the United Kingdom, nos. 33985/96 and
33986/96, 27 September 1999, §§ 88, ECHR 1999-VI).
- In
this regard, a margin of appreciation must be left to the national
authorities, who by reason of their direct and continuous contact
with the vital forces of their countries are in principle better
placed than an international court to evaluate local needs and
conditions. This margin will vary according to the nature of the
Convention right in issue, its importance for the individual and the
nature of the activities restricted, as well as the nature of the aim
pursued by the restrictions. The Court has noted the following
relevant considerations in this respect:
(i)
In spheres involving the application of social or economic policies,
including as regards housing, there is authority that the margin of
appreciation is wide, as in the urban or rural planning context where
the Court has found that “[i]n so far as the exercise of
discretion involving a multitude of local factors is inherent in the
choice and implementation of planning policies, the national
authorities in principle enjoy a wide margin of appreciation”
(see, for example, Buckley, cited above, p. 1292, §
75 in fine, and Ćosić, cited above, §
20);
(ii)
On the other hand, the margin of appreciation left to the authorities
will tend to be narrower where the right at stake is crucial to the
individual’s effective enjoyment of intimate or key rights.
Since Article 8 concerns rights of central importance to the
individual’s identity, self-determination, physical and moral
integrity, maintenance of relationships with others and a settled and
secure place in the community, where general social and economic
policy considerations have arisen in the context of Article 8 itself,
the scope of the margin of appreciation depends on the context of the
case, with particular significance attaching to the extent of the
intrusion into the personal sphere of the applicant (see, among many
others, Connors, cited above, § 82);
(iii)
The procedural safeguards available to the individual will be
especially material in determining whether the respondent State has
remained within its margin of appreciation. In particular, the Court
must examine whether the decision-making process leading to measures
of interference was fair and such as to afford due respect to the
interests safeguarded to the individual by Article 8 (see Buckley,
cited above, pp. 1292-93, § 76, and Chapman, cited
above, § 92). The “necessary in a democratic society”
requirement under Article 8 § 2 raises a question of procedure
as well of substance (see McCann, cited above, § 26);
(iv)
Since the loss of one’s home is a most extreme form of
interference with the right under Article 8 to respect for one’s
home, any person at risk of an interference of this magnitude should
in principle be able to have the proportionality and reasonableness
of the measure determined by an independent tribunal in the light of
the relevant principles under Article 8, notwithstanding that, under
domestic law, he has no right of occupation (see Kay and Others v.
the United Kingdom, no. 37341/06, § 67-8
and 74, 21 September 2010 and Orlić v.
Croatia, no. 48833/07, § 65, 21 June
2011). This means, among other things, that where relevant arguments
concerning the proportionality of the interference have been raised
by the applicant in domestic judicial proceedings, the domestic
courts should examine them in detail and provide adequate reasons
(ibid., §§
67-69);
(v)
Where the national authorities, in their decisions ordering
and upholding the applicant’s eviction, have not given any
explanation or put forward any arguments demonstrating that the
applicant’s eviction was necessary, the Court may draw the
inference that the State’s legitimate interest in being able to
control its property should come second to the applicant’s
right to respect for his home (ibid).
ii. Application of those principles to the
facts of the case
α) The Court’s approach in the
present case
- Seeing
that the applicants have been ordered to leave under a final binding
removal order but its enforcement has been postponed and a
significant period has elapsed since then (see paragraphs 35, 52 and
56 above), the Court must examine separately (i) whether the removal
order, as it was issued and reviewed by the courts in 2005-2006, was
justified under Article 8 § 2 and (ii) whether other events or
measures taken by the authorities since then may affect the Court’s
conclusion on what is necessary in a democratic society.
β) Whether the order of 17 September
2005 was justified under Article 8 § 2
- There
is no doubt that the authorities are in principle entitled to remove
the applicants, who occupy municipal land unlawfully (see paragraph
111 above).
- The
Court notes, however, that for several decades the national
authorities did not move to dislodge the applicants’ families
or ancestors and, therefore, de facto tolerated the unlawful
Roma settlement in Batalova Vodenitsa (see paragraphs 8, 17 and 92
above). In its view, this fact is highly pertinent and should have
been taken into consideration (see, for example, Orlić v.
Croatia, § 70, cited above). While
the unlawful occupants cannot claim any legitimate expectation to
remain, the authorities’ inactivity has resulted in the
applicants’ developing strong links with Batalova Vodenitsa and
building a community life there. The principle of proportionality
requires that such situations, where a whole community and a long
period are concerned, be treated as being entirely different from
routine cases of removal of an individual from unlawfully occupied
property.
- The
impugned removal order was based on section 65 of the Municipal
Property Act, under which persons unlawfully living on municipal land
can be removed regardless of any special circumstances, such as
decades-old community life, or possible consequences, such as
homelessness. Under the relevant domestic law, as in force at the
time, the municipal authorities were not required to have regard to
the various interests involved or consider proportionality (see
paragraphs 38, 66 and 72 above). Relying on this legal framework, the
municipal authorities did not give reasons other than to state that
the applicants occupied land unlawfully and, in the judicial review
proceedings, the domestic courts expressly refused to hear arguments
about proportionality and the lengthy period during which the
applicants and their families had lived undisturbed in Batalova
Vodenitsa (see paragraphs 29-31 and 36-38 above).
- In
cases such as the present one, this approach is in itself
problematic, amounting to a failure to comply with the principle of
proportionality. Under Article 8 of the Convention, the removal order
against the applicants can only be considered “necessary in a
democratic society” for a legitimate aim if it answers a
“pressing social need” and, in particular, if it is
proportionate to the legitimate aim pursued (see the case law
cited in paragraphs 121 and 122 above).
- The
Court further observes that it is undisputed that the houses of most
applicants do not meet basic sanitary and building requirements,
which entails safety and health concerns. It considers, however, that
in the absence of proof that alternative methods of dealing with
these risks have been studied seriously by the relevant authorities,
the Government’s assertion that the applicants’ removal
is the appropriate solution is weakened and cannot in itself serve to
justify the removal order.
- Indeed,
the Bulgarian authorities have recognised, as can be seen from their
long-term programmes and declarations on Roma inclusion and housing
problems, as well as from projects realised in other parts of Sofia
or elsewhere in the country, that a wide range of different options
are to be considered in respect of unlawful Roma settlements. Among
those are legalising buildings where possible, constructing public
sewage and water-supply facilities and providing assistance to find
alternative housing where eviction is necessary (see paragraphs
60-63, 65, 69, 70, 73-83 and 95 above). While some of these options
are directly relevant to achieving appropriate urban development and
removing safety and health hazards, the Government have not shown
that they were considered in the case at hand.
- In
addition, it is noteworthy that before issuing the impugned order the
authorities did not consider the risk of the applicants’
becoming homeless if removed. They attempted to enforce the order in
2005 and 2006 regardless of the consequences and, while they signed
an agreement containing an undertaking to secure alternative shelter,
they later disregarded it and declared that the risk of the
applicants’ becoming homeless was “irrelevant” (see
paragraphs 27-42 above). The Court considers, however, that in the
specific circumstances of the present case, in view, in particular,
of the long history of undisturbed presence of the applicants’
families and the community they had formed in Batalova Vodenitsa, the
principle of proportionality required that due consideration be given
to the consequences of their removal and the risk of their becoming
homeless.
- The
Court also notes that there is no indication that the construction
plans invoked by the Government ever moved close to the stage of
implementation. The Government have not shown, therefore, that the
land was urgently needed for the public need they mentioned.
Proportionality in cases such as the present one is inextricably
linked to the use for which the authorities seek to recover the land.
In principle, in cases where the domestic authorities have considered
these matters, the Court would normally accept their conclusion
unless manifestly unreasonable. As there is no evidence of such an
attempt, the Court cannot but attach less weight to the alleged
importance of the development plans for the land currently occupied
by the applicants.
- Furthermore,
it transpires from statements made by municipal officials and the
Government’s submissions before the Court that at the local
level, in the present case, the authorities have refused to consider
approaches specially tailored to the needs of the Roma community on
the ground that such an attitude would amount to discrimination
against the majority population. In this connection, in the Court’s
view, there would appear to be a contradiction between, on the one
hand, adopting national and regional programmes on Roma inclusion,
based on the understanding that the applicants are part of an
underprivileged community whose problems are specific and must be
addressed accordingly, and, on the other hand, maintaining, in
submissions to the Court, as the respondent Government did in this
case, that so doing would amount to “privileged”
treatment and would discriminate against the majority population (see
paragraphs 41, 60-63 and 95-98 above).
- The
latter argument fails to recognise the applicants’ situation as
an outcast community and one of the socially disadvantaged groups
(see D.H. and Others v. the Czech Republic [GC], no.
57325/00, § 182, ECHR 2007 IV, with further references).
Such social groups, regardless of the ethnic origin of their members,
may need assistance in order to be able effectively to enjoy the same
rights as the majority population. As the Court has stated in the
context of Article 14 of the Convention, that provision not only does
not prohibit a member State from treating groups differently in order
to correct “factual inequalities” between them but,
moreover, in certain circumstances a failure to attempt to correct
inequality through different treatment may in itself give rise to a
breach of Article 14 (see D.H. and Others v. the Czech
Republic, cited above, § 175; “Case relating to
certain aspects of the laws on the use of languages in education in
Belgium” v. Belgium (Merits), judgment of 23 July 1968,
Series A no. 6, § 10; Thlimmenos v. Greece [GC], no.
34369/97, § 44, ECHR 2000-IV; and Stec and Others v. the
United Kingdom [GC], no. 65731/01, § 51, ECHR 2006-...). 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
above does not mean that the authorities have an obligation under the
Convention to provide housing to the applicants. Article 8 does not
in terms give a right to be provided with a home (see, Chapman,
cited above, § 99) and, accordingly, any positive
obligation to house the homeless must be limited (see O’Rourke
v. the United Kingdom (dec.), no. 39022/97, ECHR 26 June 2001).
However, an obligation to secure shelter to particularly vulnerable
individuals may flow from Article 8 of the Convention in exceptional
cases (ibid.; see, also, mutatis mutandis, Budina v.
Russia (dec.), no. 45603/05, 18 June 2009).
- It
is also true that the applicants themselves have not been active in
seeking a solution (see paragraphs 13, 43 and 51 above). It appears
that they are reluctant to seek social housing at least partly
because they do not want to be dispersed, find it difficult to cover
the related expenses and, in general, resent the radical change of
their living environment that moving into blocks of flats would
entail. However, Article 8 does not impose on Contracting States an
obligation to tolerate unlawful land occupation indefinitely (see
Chapman, cited above, § 96, which concerns a very
specific and relatively narrow positive obligation to facilitate
itinerant way of life which is determinative of an identity).
- The
relevant point in this case is, nonetheless, that the disadvantaged
position of the social group to which the applicants belong could and
should have been taken into consideration, for example, in assisting
them to obtain officially the status of persons in need of housing
which would make them eligible for the available social dwellings on
the same footing as others. This has been recognised by the Bulgarian
authorities in their national and regional programmes but that did
not result in practical steps being taken in the present case (see
paragraphs 55-59 and 61-65 above).
- In
general, the underprivileged status of the applicants’ group
must be a weighty factor in considering approaches to dealing with
their unlawful settlement and, if their removal is necessary, in
deciding on its timing, modalities and, if possible, arrangements for
alternative shelter. This has not been done in the present case.
- In
sum, the Court finds that the respondent Government failed to
establish that the removal order of 17 September 2005 was necessary
in a democratic society for the achievement of the legitimate aims
pursued.
γ) Whether
events since 2005-2006 would render the enforcement justified
- It
is true that in the years since September 2005 the fate of the
Batalova Vodenitsa area has been the subject of negotiations,
discussions and examination by consultative bodies such as the
National Council for Cooperation on Ethnic and Demographic Issues.
The Council apparently recommended consideration of alternative modes
of action and a more balanced solution. The Government and the local
authorities in Sofia declared on several occasions that they planned
to find a solution to the applicants’ housing problem by
providing them with alternative shelter (see paragraphs 33, 44, 55,
57 and 96 above). It is also true that several programmes on Roma
housing problems have been adopted at the national and regional level
in Bulgaria (see paragraphs 60-63 above) and that, apparently, some
projects in other locations have been undertaken. All this may
suggest that the authorities are seeking a proportionate approach,
combining the enforcement of building planning rules with positive
measures to assist the individuals concerned.
- The
Court cannot but observe, however, that these discussions and
programmes were not part of a formal procedure before a body in which
power to modify the impugned order for the applicants’ removal
was vested and, in any event, they did not result in any legal act
concerning the applicants concretely. The order of 17 September 2005
has remained in force and is still enforceable. Although the mayor of
the relevant district suspended the applicants’ removal
temporarily, it is significant that, as it appears from the material
submitted to the Court, there has been no decision to re-examine the
order of 17 September 2005 or tie its enforcement to the
implementation of appropriate measures to secure respect for the
applicants’ Article 8 rights (see paragraphs 41, 45-48 and 56
above).
- In
these circumstances, it cannot be considered that the above-mentioned
post hoc discussions have secured the fair decision-making
process that is indispensable for the discharge of the respondent
State’s duties under Article 8 of the Convention or that
“necessity in a democratic society” was otherwise
demonstrated.
- The
Government have also argued that repeated complaints by neighbours,
including in 2008 and 2009, would justify the enforcement of the
removal order (see paragraphs 93 and 97 above).
- It
appears undisputed between the parties that, before 2005 and since
then, there have been repeated complaints by residents of blocks of
flats adjacent to the land at issue in which two main issues were
raised: (i) sanitary risks mainly related to the lack of sewage
and the fact that the applicants’ homes do not meet building
requirements and (ii) offences and disturbances of public order
allegedly committed by the residents of the unlawful settlement in
Batalova Vodenitsa (see paragraphs 20-25, 42 in fine, 56, 93
and 97 above).
- On
the first issue, the Court has already found that health risks of
that kind could in principle justify the impugned measures, had it
been demonstrated – which is not so in the present case –
that the removal order respected the principle of proportionality
(see paragraphs 120-134 above).
- As
to the second issue, the Court accepts that the authorities were
under a duty to act in response to the neighbours’ allegations
about offences and disturbances in the area. It was their
responsibility to apply the law and, if necessary, investigate the
alleged offences and sanction the individuals concerned. The
respondent Government have not provided any evidence of such action
having been taken.
- Some
of the neighbours’ complaints, however, also contained
illegitimate demands, such as to have the applicants “returned
to their native places” (see paragraph 93 above). 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.
- In
sum, the events since the removal order was issued and reviewed by
the domestic courts do not provide a basis for a conclusion that its
future enforcement would be justified.
(e) Conclusion as regards Article 8
- The
above considerations are sufficient for the Court to reach the
conclusion that there would be a violation of Article 8 in the event
of enforcement of the deficient order of 17 September 2005 as it was
based on legislation which did not require the examination of
proportionality and was issued and reviewed under a decision-making
procedure which not only did not offer safeguards against
disproportionate interference but also involved a failure to consider
the question of “necessity in a democratic society”.
2. Article 14 in conjunction with Article 8
- The
parties’ submissions are summarised in paragraphs 85-99 above.
In essence, the applicants complained that the removal order was
based on racist attitudes against them and the Government maintained
that the removal order was justified and that the applicants could
not claim a privileged treatment.
- It
is undisputed that Article 14 applies in the present case, seeing
that discrimination is alleged in relation to the applicants’
right to respect for their homes and private life and, therefore, in
respect of issues falling within the ambit of Article 8 (see, for
example, E.B. v. France [GC], no. 43546/02, § 47, 22
January 2008, and Larkos v. Cyprus [GC], no. 29515/95, §
28, ECHR 1999 I).
- The
Court observes, however, that the issue before it is whether a
hypothetical future enforcement of the removal order would be
discriminatory. The Court cannot speculate about the timing and
modalities of any such enforcement and assess the Article 14 issue on
the basis of a hypothetical scenario. For example, it cannot assume,
as urged by the applicants, that the authorities would again seek to
remove them at very short notice.
- The
Court also notes that the main argument of the applicants about
discrimination concerns the allegation that the authorities were
unduly influenced by hostile attitudes and complaints from
neighbours. The Court has dealt with relevant aspects of these issues
in the context of proportionality under Article 8 (see paragraphs
128-143 above).
- In
these circumstances, the Court finds that no separate issue arises
under Article 14 with regard to any future enforcement of the removal
order of 17 September 2005.
3. Articles 3 and 13 of the Convention and Article 1 of
Protocol No. 1
- The
applicants considered that in the event of enforcement of the order
of 17 September 2005 there would also be violations of Articles 3 and
13 of the Convention and Article 1 of Protocol No. 1. The Government
disputed this.
- The
Court, noting that the enforcement of the order of 17 September
2005 has been suspended, cannot speculate about the modalities of any
future enforcement and cannot assume, as urged by the applicants,
that the authorities would again seek to remove them at very short
notice or would not offer alternative shelter where appropriate. Nor
can it assume that the authorities would damage their belongings or
would not allow time to move them. The municipal authorities had
stated their intention to issue a separate demolition order in the
event of enforcement of the impugned removal order (see paragraph 31
above).
- In
any event, the Court has already found that the enforcement of the
removal order of 17 September 2005 would violate the applicants’
rights under Article 8 on the grounds that it was issued and reviewed
in a manner which did not secure the minimum procedural safeguards.
In these circumstances, there is no reason to doubt that the
respondent Government would comply with the present judgment and
would not act in violation of the Convention by removing the
applicants on the basis of a deficient order.
- For
the reasons set out above, the Court finds it unnecessary to examine
the above complaints separately.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicants alleged that, apart from any violation of the Convention
that would occur in the event of the future enforcement of the
removal order, the authorities had already violated their rights
under Articles 3, 8, 13 and 14.
- In
particular, in their view, the unjust and arbitrary manner in which
the authorities had acted – seeking summarily to remove them
after decades of tolerating their presence, disregarding signed
agreements and legitimate concerns, moving on the basis of racially
biased complaints by non-Roma inhabitants and demonstrating clear
indifference to the applicants’ becoming homeless, amounted to
treatment of such gravity that it could be characterised as
degrading. That treatment was in any event discriminatory.
- The
Government considered that all the actions complained of were lawful
and justified under the Convention.
- The
Court accepts that the applicants’ situation in September 2005,
when they and their families were given only several days to leave
their decades-old homes, was unenviable. The Court has already found
that Article 8 would be violated in the event of the removal order of
17 September 2005 being enforced (see paragraph 144 above).
- It
is further relevant that the authorities accepted to suspend the
enforcement of the removal order. The Court finds unconvincing the
applicants’ argument that, despite the above, they were
subjected to treatment beyond the threshold of severity required
under Article 3 or suffered a separate violation of Article 8 as a
result of the very fact that the authorities announced their decision
to remove them and made preparatory moves. It should not be
overlooked that the applicants knew at all relevant times that they
occupied municipal land unlawfully and could not expect to remain
there indefinitely.
- It
is true that serious cases of discriminatory statements by public
officials or failure by the authorities to react to racist statements
may constitute violations of Article 14 or even Article 3 (see
Moldovan v. Romania (no. 2), nos. 41138/98 and 64320/01,
§§ 111-14, ECHR 2005 VII (extracts), with further
references). The Court cannot exclude furthermore that a failure to
react to discriminatory attitudes and statements could amount to a
violation of Article 14 in conjunction with other Convention
provisions, including Article 8.
- The
Court notes, however, that that the applicants’ main complaint
concerns a potential violation of the their rights under Article 8.
As regards the attitudes and statements complained of, Bulgaria has
put in place legal protection mechanisms, such as the possibility to
file complaints to the commission set up under the Protection against
Discrimination Act or directly bring judicial proceedings. This
mechanism apparently functions in practice as seen from relevant
examples (see paragraph 71 above) and the applicants have not claimed
that they could not resort to it. It cannot be said, therefore, that
the national legal system left the applicants defenceless. They could
bring legal proceedings with a view to having incidents of hate
speech examined and obtain an authoritative condemnation of any
racist statements, and compensation.
- In
sum, the Court, having examined in detail the complaints concerning
the future enforcement of the removal order of 17 September 2005 (see
paragraphs 100-153 above), finds that the applicants have not
established convincingly that the additional complaints formulated by
them give rise to a separate issue under the Convention.
III. APPLICATION OF ARTICLE 46 OF THE CONVENTION
- The
Court finds it appropriate to consider the present case under Article
46 of the Convention, which reads as follows:
“1. The High Contracting Parties
undertake to abide by the final judgment of the Court in any case to
which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
- The
Court reiterates that, in the context of the execution of judgments
in accordance with Article 46 of the Convention, a judgment in which
the Court finds a violation of the Convention or its Protocols
imposes on the respondent State a legal obligation not just to pay
those concerned the sums awarded by way of just satisfaction, but
also to choose, subject to supervision by the Committee of Ministers,
the general and/or, if appropriate, individual measures to be adopted
in its domestic legal order. Furthermore, it follows from the
Convention, and from Article 1 in particular, that in ratifying the
Convention the Contracting States undertake to ensure that their
domestic legislation is compatible with it (see Maestri v. Italy
[GC], no. 39748/98, § 47, ECHR 2004-I).
- Contracting
States’ duty in international law to comply with the
requirements of the Convention may require action to be taken by any
State authority, including the legislature (see Viaşu v.
Romania, no. 75951/01, 9 December
2008).
- In
view of the relevant strict provisions in the Municipal Property Act,
noted in the present judgment (see paragraphs 122 and 123 above), and
the fact that the order of 17 September 2005 is still enforceable in
Bulgarian law, it appears necessary to assist the respondent
Government in the execution of their duty under Article 46 of the
Convention.
- In
particular, in view of its findings in the present case, the Court
expresses the view that the general measures in execution of this
judgment should include such amendments to the relevant domestic law
and practice so as to ensure that orders to recover public land or
buildings, where they may affect Convention-protected rights and
freedoms, should, even in cases of unlawful occupation, identify
clearly the aims pursued, the individuals affected and the measures
to secure proportionality.
- In
so far as individual measures are concerned, the Court is of the view
that the execution of the present judgment requires either the repeal
of the order of 17 September 2005 or its suspension pending measures
to ensure that the authorities have complied with the Convention
requirements, as clarified in the present judgment.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed 10,000 euros (EUR) each for non-pecuniary damage.
They stated that they had suffered from the fact that they had to
live for years under the threat of homelessness and from the alleged
racial bias in the authorities’ actions. The applicants
requested that any award of damages should be made payable to the
bank account of the Bulgarian Helsinki Committee.
- The
Government, objecting to the allegations about discrimination and
racist attitudes on the part of the authorities, considered that the
finding of a violation of the Convention would constitute sufficient
just satisfaction.
- In
the present case, the Court found that there would be a violation of
Article 8 of the Convention if the order of 17 September 2005 were
enforced. In most cases concerning violations that have not already
occurred, the Court considered that the finding of a violation was
sufficient just satisfaction (see, mutatis mutandis, Raza
v. Bulgaria, no. 31465/08, § 88, 11 February 2010, with
further references). It sees no reason to reach a different
conclusion in this case. Furthermore, it is relevant that, as noted
above, the applicants themselves have not been very active in seeking
a solution that would allow them to put an end to their unlawful
occupation of land in Batalova Vodenitsa (see paragraphs 13, 43 and
51 above).
B. Costs and expenses
- The
applicants claimed EUR 5,786.82 for costs and expenses relating to
the domestic proceedings and the proceedings before the Court. This
sum included legal fees for eighty-one hours of legal work at the
hourly rate of EUR 70 and court fees in the amount of EUR 116.82. The
applicants submitted copies of a legal fees agreement, a time sheet
and receipts. They requested that any sums awarded under this head
should be paid directly into the bank account of the Bulgarian
Helsinki Committee, the organisation which provided them with legal
assistance.
- The
Government considered that the claim was excessive as the hourly rate
claimed allegedly exceeded several times the usual rates charged by
lawyers in Bulgaria.
- Having
regard to the relevant criteria and considering that the number of
hours of legal work claimed appears to be excessive, the Court awards
EUR 4,000 in respect of costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there would be a violation of Article
8 of the Convention in the event of the enforcement of the order of
17 September 2005;
- Holds that no separate issue arises under
Article 14 of the Convention in conjunction with Article 8;
- Holds that it is not necessary to examine
separately whether there would be violations of Articles 3 and 13 of
the Convention and Article 1 of Protocol No. 1 in the event of the
enforcement of the order of 17 September 2005;
4 Holds that no separate issue arises in respect of
the applicants’ complaints under Articles 3, 8, 13 and 14 of
the Convention about the authorities’ past actions and
statements in relation to Batalova Vodenitsa;
- Holds that the finding of a violation of Article
8 of the Convention constitutes in itself sufficient just
satisfaction for any non-pecuniary damage sustained by the
applicants;
- Holds
(a) that
the respondent State is to pay the applicants,
within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2 of the
Convention, EUR 4,000 (four thousand euros) in respect of
costs and expenses, to be converted into Bulgarian levs at the rate
applicable at the date of settlement, plus any tax that may be
chargeable to the applicants;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 24 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Lech Garlicki
Deputy Registrar President
