SWM 2015: Bulgaria/Hungary - Strategic Litigation for the Housing Rights of Informal Dwellers
Case study by Bálint Misetics
In its 2012 decision on the Yordanova and Others v. Bulgaria case, the European Court of Human Rights (ECtHR) unanimously held that the eviction of around 250 Romani families from the Batalova Vodenitsa neighborhood in Sofia (in which they have been unlawfully occupying municipal land) is not necessary in a democratic society and would constitute a violation of Article 8 of the European Convention on Human Rights (ECHR). The applicants were represented by Margarita Ilieva, the Legal Programme Director of the Bulgarian Helsinki Committee. The judgment arguably ‘represents the most advanced European jurisprudence to date on the issue of forced evictions.’ While the decision—in accordance with previous cases of the ECtHR—unfortunately falls short of establishing ‘a right to be provided with a home’, it does assert that ‘an obligation to secure shelter to particularly vulnerable individuals may flow from the Convention’ and in any case provides important tools for litigation on behalf of informal dwellers, both regarding procedural and substantive matters.
It is notable that the eviction order was previously found to be lawful both by the Sofia City Court and the Supreme Administrative Court. Neither the order's conformity with domestic law nor the legitimacy of the domestic authorities’ aims were disputed by the ECtHR. However, while the Court usually applies a wide margin of appreciation to the national authorities concerning the selected instruments of pursuing legitimate aims in the field of social or economic policies, in this case it argued that ‘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 of the ECHR providing a right to respect for one's ‘private and family life’ and his or her ‘home’ concern 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’, this margin of appreciation has to be narrower.
The Court found that domestic authorities failed to demonstrate that the removal order respected the ‘principle of proportionality’ and had not shown that alternative means of pursuing the otherwise legitimate aims—such as ‘legalising buildings where possible, constructing public sewage and water-supply facilities and providing assistance to find alternative housing where eviction is necessary’ —were considered. The essence of this argument is that the right to property is not in itself sufficient to justify an eviction order, because it has to be weighed against Article 8(2) of the ECHR, according to which interference by a public authority with the right to respect for private and family life is justified only if it is necessary in a democratic society in the interest of legitimate social goals. It is also of crucial importance that the Court continued to assert (on the basis of its previous case law) that the applicants’ houses in Batalova Vodenitsa are their ‘homes’ within the meaning and under the protection of Article 8, and that this classification ‘is a matter of fact independent of the question of the lawfulness of the occupation under domestic law’.
The broader reach and applicability of ECtHR decisions is not without difficulties of course, which is tellingly exemplified by the handcuffing and arrest of two activists of the Budapest-based homeless community organization The City is For All (including the author of the case study) in March 2012 after an unsuccessful attempt to prevent the destruction of the self-built huts of four individuals living in the outskirts of Budapest on municipal land. The 9th district municipality of Budapest (which ordered the forceful eviction of the four informal dwellers under the pretence of park maintenance) and the police force on the ground were unimpressed by the activists' references to the case law of the ECtHR. However, in a similar case a domestic court ruled that the forced eviction of the shack-dwellers and the destruction of their homes were unlawful.
The increasingly punitive governmental responses to homelessness in Hungary (beside of course the explicit criminalization of rough sleeping, contrary to an unambiguous decision by the Constitutional Court) has been demonstrated in the attempts of various local authorities to demolish informal settlements of ‘homeless’ people without due process and the provision of adequate alternative accommodation. While these measures do not exclusively affect Roma Hungarians, evidence suggests that Roma are significantly overrepresented among the homeless, especially among the youngest and least educated supgroups. While previous research has suggested that between 15 and 20 per cent of homeless persons consider themselves Roma – compared to around 6 per cent in the populations as a whole – the actual proportion now may be even higher. For example, recent research by Péter Győri that surveyed homeless respondents found that around 25 per cent had been called ‘gypsy’ – a figure that rose to 54 per cent among homeless women and 46 per cent among homeless men without elementary education. While exact figures are difficult to gauge and these are estimates only, they do suggest that disproportionate numbers of homeless are indeed Roma.
In the aforementioned case the local authority of the 14th district demolished the self-built wooden cabins of nine homeless people in October 2011. The wooden cabins were built on land owned by the publicly owned railway company. The demolition was not preceded by adequate prior notice, not approved by relevant authorities and lacked any provision for alternative accommodation. Six of the homeless people concerned - with the help of the Legal Defence Bureau for National and Ethnic Minorities and The City is for All - sued the local authority for compensation.
In October 2014 the Metropolitan Regional Court ruled that since the municipality demolished the homes of the plaintiffs without any administrative or judicial procedure, it was in violation of their rights to equal treatment and their rights to dignity. The Court accepted ‘homelessness’ as a protected characteristic under the Act CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities (which prohibits discrimination on the basis of‘financial status’) and maintained thatthe forced evictions were implemented by taking advantage of the vulnerability of the informal dwellers. The Court also ordered the municipality to pay the equivalent of about €1600 to each plaintiff as compensation and to formerly apologize for its illegal actions.
Beside its obvious benefits for those directly affected by forced evictions in question, the decision might discourage local authorities in general from taking such illegal measures against informal dwellers, and might encourage outreach workers and activists to not rely solely on humanitarian arguments in such cases, but to use rigorously whatever legal instrument that exists even within the domestic legal framework. This may help strengthen protections for homeless populations in Hungary and elsewhere, many of whom are drawn disproportionately from Roma and other marginalized populations, and ensure a stronger rights-based framework for housing in European cities.