Protection from arbitrary eviction for Roma community in Bulgaria

Naidenova et al v Bulgaria, UN Doc CCPR/C/106/D/2073/2011 (27 November 2012)

Summary

A Roma community that had lived for over 70 years in an informal settlement on municipal land in Bulgaria was issued with an eviction order on the basis that the buildings were constructed without the proper permits on municipal property. The UN Human Rights Committee considered that, in light of all the circumstances, the execution of the eviction order would violate the right of the Roma community to not be arbitrarily evicted from their homes under article 17 of the International Covenant on Civil and Political Rights unless satisfactory replacement housing was made available to them beforehand.

Facts

For over 70 years, Bulgarian nationals of Roma ethnicity in the Dobri Jeliazkov community (applicants) have lived in an informal settlement on municipal land in Sofia, Bulgaria. During that time, public authorities had recognised the applicants’ housing, including by providing individual mail service, publicly regulated services such as electricity, and by the police registering their address.

On 12 July 2006, the mayor of the Sofia Metropolitan Municipality (SMM) requested the applicants to voluntarily leave on the basis that their houses had been constructed unlawfully on municipal land. They did not comply with this request and on 24 July 2006, the SMM issued an eviction order against the applicants on the basis that domestic laws allowed for the eviction of individuals and demolition of buildings constructed without the proper permits on municipal property.

This order was appealed to the Sofia City Court, which granted an injunction preventing any eviction pending the examination of their appeal. On 15 April 2008, the Sofia City Court ruled that the eviction order was lawful. The applicants appealed the Sofia City Court’s decision to the Supreme Administrative Court. The decision was upheld on 28 October 2009 by the Supreme Administrative Court, which allowed the order to be subject to imminent execution.

On 26 March 2011, the SMM issued a protocol for execution of the eviction order which was handed to the applicants on 23 June 2011.

By the time the communication was submitted to the Human Rights Committee, there were ten households in the Dobri Jeliazkov community under imminent threat of forced eviction and demolition. The applicants claimed that:

• none of them had yet been offered alternative housing;
• no meaningful consultation had taken place with the community; and
• the mayor of the SMM had stated that the municipality could not provide alternative housing for the families, since they lived there illegally.

The applicants brought the complaint to the Human Rights Committee claiming that:

• the forced evictions and threatened forced evictions amount to a violation of article 17 (the right to not be subjected to arbitrary or unlawful interference with home), read in conjunction with article 2 (right to non-discrimination), of the ICCPR; and
• the threatened forced evictions amount to a violation of article 26 (right to equal protection under the law) read in conjunction with article 2 of the ICCPR.

Decision

Admissibility

While the Human Rights committee determined that the claims under article 17 were admissible because the applicants had exhausted all effective and available domestic remedies, it determined that its claims under article 2 and 26 were not admissible as it was unclear whether the allegations had been raised domestically and it considered that they were insufficiently substantiated for the purposes of admissibility.

Protection from arbitrary eviction

The Human Rights Committee considered article 17 of the ICCPR which states that:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.

The Human Rights Committee found that the applicants’ houses are their “homes” within the meaning of article 17 of the ICCPR in light of their long, continuous residence on the land and the acquiescence of the State, irrespective of the fact that they are not the lawful owners of the plot of land on which the houses had been constructed.

The Human Rights Committee noted that under article 17 of the ICCPR, it is necessary for any interference with the home to not only be lawful, but also not to be arbitrary. It considered that the concept of arbitrariness in article 17 is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the ICCPR and should be, in any event, reasonable in the particular circumstances.

The Human Rights Committee noted that while the State party’s authorities are in principle entitled to remove the applicants, their lack of property rights over the plot of municipal land was the only stated justification for issuing the eviction order and the State party has not identified any urgent reason for forcibly evicting the applicants from their homes before providing them with adequate alternative accommodation.

Despite the fact that the State party’s authorities acquiesced to the applicants living informally on municipal land for over 70 years resulting in them developing strong links to the Dobri Jeliazkov site and building a community there, the Human Rights Committee noted that the municipal authorities and the State party’s courts were not required to have regard to any of these special circumstances, the various interests involved or to consider the reasonableness of the immediate eviction of the applicants.

The Human Rights Committee found that in light of the special circumstances cited above, by not giving due consideration to the consequences of the applicants’ eviction from Dobri Jeliazkov, such as the risk of them becoming homeless, the State party would interfere arbitrarily with the applicants’ homes, and thereby violate the applicants’ rights under article 17 of the ICCPR, if it enforced the eviction order of 24 July 2006 without immediately making available satisfactory replacement housing.

In accordance with article 2, paragraph 3(a) of the ICCPR, the Human Rights Committee stated that the State is under an obligation to provide the applicants with an effective remedy, including refraining from evicting them from the Dobri Jeliazkov community until satisfactory replacement housing is immediately available to them.

Commentary

The right to not be unlawfully and arbitrarily evicted from one’s home is highly relevant in the Victorian context.

In Victoria, when a person is occupying premises, such as public housing, without a licence or the consent from the Office of Housing, the Office of Housing is entitled to apply for a possession order at the Victorian Civil and Administrative Tribunal pursuant to section 344 under the Residential Tenancies Act 1997 (Vic). Even when a person has a lawfully recognised residency right such as a public housing tenancy agreement, the public housing tenant could be issued with a notice to vacate and evicted without cause on a few months’ notice even where that person has lived in that home for years or they are elderly or in ill-health or would face homelessness.

While the equivalent to article 17(1) of the ICCPR is contained in section 13(a) of the Charter of Human Rights and Responsibilities 2008 (Vic) and section 38 of the Charter makes it unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human rights, in practice, the Charter does not offer strong protection to clients at risk of homelessness due to forcible evictions. This is due to the fact that:

• the Charter does not contain an independent right to commence proceedings to seek relief for failure to comply with human rights; and
• the effect of Director of Housing v Sudi [2011] VSCA 266 is that VCAT does not have the jurisdiction to consider human rights issues in eviction proceedings; and
• the Victorian Supreme Court has narrowly interpreted the concept of arbitrariness compared to the United Nations Human Rights Committee. In WBM v Chief Commissioner of Police [2010] VSC 219 (28 May 2010), the court held that the meaning of arbitrary is consistent with the Oxford English Dictionary’s definition, being an action not based on any identifiable criterion but stemming from caprice or whim.

These factors limit the ability of the Charter to prevent or address unjust outcomes, for example by preventing a public authority from evicting someone without considering the reasonableness of the eviction order, the risk of homelessness or the availability of alternative housing. As such social housing or public housing landlords are less accountable for their decision making and there is no real imperative for them to think about the consequences of eviction for vulnerable tenants.

This decision is available online at:

http://www2.ohchr.org/english/bodies/hrc/HRCommitteeCaseLaw.htm

Evelyn Tadros is a Lawyer from Clayton Utz who is currently on secondment to the PILCH Homeless Persons’ Legal Clinic