In Yordanova and Others v. Bulgaria the Court held that the state cannot evict people from a Romani settlement as it will violate their right to housing and to private and family life
In Yordanova and Others v. Bulgaria the European Court of Human Rights (ECtHR) unanimously held that the eviction of Roma families from the Batalova Vodenitsa neighbourhood in Sofia is not necessary in a democratic society and would constitute a violation of Article 8 of the European Convention on Human Rights.
The case concerns two attempts of the Sofia municipal authorities in 2005-06 and 2008 to demolish the Roma neighbourhood of Batalova Vodenitsa by removing its residents because they were living unlawfully on municipal land without providing alternative housing. In July 2008 the Court imposed interim measures ordering that the eviction of the residents is stopped.
According to the Court the removal order is based on a law, in itself flawed, because it does not require an assessment of proportionality of the interference. It was issued and reexamined in proceedings where not only was protection against undue interference not provided, but also no assessment was made of the necessity of the measure in a democratic society.
The Court obliges Bulgaria to amend its domestic law and practice so as to ensure that orders to recover public land or buildings where they may affect right protected by the Convention, even in cases of unlawful occupation, identify clearly the aims pursued, the individuals affected and the measures to secure proportionality. The specific order to evict the residents of Batalova Vodenitsa should, according to the Court, be repealed or suspended pending amendment of the law.
“The judgment is a precedent for the rights of the Roma across Europe. It obliges states to cease arbitrary evictions of Roma who have no other home,” said Margarita Ilieva, Legal Programme Director of the Bulgarian Helsinki Committee and legal representative of the applicants.
In its reasoning the Court held that:
- The houses of the Roma families are their “homes” within the meaning of the Convention inasmuch as they have been living in them for many years. Their “unlawfulness” under domestic law is irrelevant. The removal of the applicants from their homes would constitute interference in their right to private and family life.
- The loss of ones’ home is “the most extreme form of interference” in the right to a home. A person at risk is entitled to have the issue determined by a court in the light of Article 8 of the Convention, nothwithstanding that under domestic law, he has no right of occupation. The domestic court should examine the arguments on the proportionality of the interference in detail and provide adequate reasons.
- For several decades the authorities failed to dislodge the families from the plot and de facto tolerated the settlement. This fact is very pertinent and should have been taken into consideration in deciding on the eviction because the authorities’ inactivity lead to the families’ developing strong links with the locality 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 entirely different from routine cases of removal of individuals from unlawfully occupied property.
- The removal order was based in Article 65 of the Municipal Property Act, under which persons living unlawfully 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, municipal authorities were not required to have regard to the various interests involved or consider proportionality. Relying on this legal framework, the municipal authorities in Sofia did not give reasons other than to state that the applicants occupied land unlawfully. 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. In cases such as the present one, such an approach is in itself a violation of the principle of proportionality.
- That the houses do not meet basic sanitary and building requirements with health and safety consequences cannot justify the removal of the applicants inasmuch as alternatives for addressing these risks were not considered.
- Alternatives recognized by the government in its own programmes and declarations on Roma inclusion are legalization of housing where possible, constructing public sewage and water-supply facilities, alternative housing where eviction is necessary. Such alternatives were not considered in the case.
- Before issuing the removal order, the authorities did not consider the risk of the applicant’s becoming homeless. They attempted to enforce this order regardless of the consequences. While they signed an agreement containing an undertaking to secure alternative shelter, they later disregarded it and stated that the risk of the applicants’ becoming homeless was “irrelevant”. In view of the long history of undisturbed presence in Batalova Vodenitsa, the principle of proportionality requires due consideration to be given to the consequences of removal of the people and the risk of their becoming homeless.
- There is a contradiction in the approach of the local and national authorities which in the instant case refused to consider approaches specially tailored to the needs of the Roma since that would constitute “discrimination” against the majority, while at the same time they adopted national and regional programmes on Roma inclusion based on the understanding that the Roma constitute an underprivileged community with specific problems which require specific solutions.
- The authorities fail to recognize the applicants’ situation as an outcast and socially disadvantaged community. Such communities need assistance in order to be able to effectively enjoy the same rights as the majority. Inactivity to resolve their de facto inequality through different treatment can constitute discrimination.
- In exceptional cases Article 8 of the Convention can give rise to an obligation to secure shelter to particularly vulnerable individuals.
- The disadvantaged position of the social group of the applicants should have been taken into consideration 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 recognized by the Bulgarian authorities in their programmes on Roma, but was not done in the present case.
- With regard to the complaints by neighbours that the people of Batalova Vodenitsa were committing offences, the authorities were obliged to investigate and sanction the specific perpetrators. This was not done in the case.
- Neighbours’ requests to “return the Roma to their native places” are illegitimate. The authorities have no right to be influenced by such hostile attitudes of one social ethnic group toward another.
The judgment is available on the ECtHR Internet site: http://cmiskp.echr.coe.int.
The Bulgarian Helsinki Committee assisted the applicants in their application to the Court. BHC donates the awarded EUR 4,000 in costs and expenses to the applicants to which the Court did not award any damages.
Download the official Press Release from the Court HERE