COHRE CERD Early Warning Complaint Slovakia Plavechystovstock 2010

83 R UE DE M ONTBRILLANT 1202 G ENEVA , S WITZERLAND Tel: + 41.22.7341 028 Fax: + 41.227338 336 E‐mail: litigation@cohre.org

COMPLAINT TO THE COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION UNDER THE EARLY WARNING MEASURES AND URGENT PROCEDURES MECHANISMS OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION

15 July 2010

Table of Contents: I. II. III. IV.

Introduction ...........................................................................................................3 Statement of the Facts...........................................................................................3 Prohibition on Forced Evictions .............................................................................4 Urgent Request for Early Warning Procedure .......................................................7

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I.

Introduction

1.

The Centre on Housing Rights and Evictions (COHRE) is an international

human rights non‐governmental organisation based in Geneva, Switzerland, with offices throughout the world.

COHRE has consultative status with the United

Nations and works to promote and protect the right to adequate housing for everyone, everywhere, including preventing or remedying forced evictions. COHRE also has consultative status with the Council of Europe.

II.

Statement of the Facts

2.

This Complaint requests the Committee on the Elimination of Racial

Discrimination (CERD) to urgently intervene with the Republic of Slovakia to prevent the imminent forced eviction of the Romani community in the municipality of Plavecký Štvrtok.

3.

Oral tradition states that his community has existed for approximately 200

years. Many current residents were located or are descendents of those located in this area in 1956 after the displacement of the Bucany Romani community. Others located to this area more recently from eastern Slovak Republic.

4.

Under Slovak law, real property can be the object of adverse possession, or

usufruct, after ten years of possession.

5.

The community consists of 105 households consisting of 536 persons

including more than 200 children under the age of 15.

6.

The Municipality of Plavecký Štvrtok has implicitly recognised the legitimacy

of this community by providing legal address numbers. The Municipality of Plavecký Štvrtok has also levied and collected local taxes on the homes for many years.

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7.

The community is now under threat of imminent forced eviction for two

ostensible reasons. First, some of the homes are near a gas line and it is argued that they must therefore be removed, although houses of non‐Roma also near the gas line are not under threat of eviction. Second, the community is considered an informal settlement on land confiscated by the former communist government and the land is now to be restituted to persons who claim a property right to the land.

III.

Prohibition on Forced Evictions

8.

Article 5(e)(iii), read in conjunction with Article 2, of the International

Convention on the Elimination of Racial Discrimination requires that the Republic of Slovakia prohibit and eliminate racial discrimination in all its forms and to guarantee the right of everyone to economic, social and cultural rights, in particular the right to housing.

9.

In its General Recommendation No. XXVII, CERD stated that required

measures to improve living conditions of Roma include acting “firmly against any discriminatory practices affecting Roma, mainly by local authorities and private owners, with regard to taking up residence and access to housing [and] to act firmly against local measures denying residence to and unlawful expulsion of Roma.”

10.

While some of the houses are near a gas line and thus residents there may

have to relocate, the Republic of Slovakia has failed to meet its international human rights obligations relevant to evictions. The jurisprudence of the Committee on Economic, Social and Cultural Rights provides guidance on the prohibition on forced eviction. General Comment No. 4 of the Committee on Economic, Social and Cultural Rights makes clear that the prohibition on forced eviction even applies to informal settlements, stating that “notwithstanding the type of tenure, all persons

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should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats.”1

11.

General Comments Nos. 4 and 7 of the Committee on Economic, Social and

Cultural Rights make clear that, first, evictions may only occur in very “exceptional circumstances” and in accordance with the relevant principles of international law.2 Second, authorities must ensure, prior to any planned evictions, and particularly those involving large groups, that all feasible alternatives are explored in consultation with affected persons.3

12.

Third, in those rare cases where eviction is otherwise considered justified, it

must be carried out in strict compliance with international human rights law and in accordance with general principles of reasonableness and proportionality. These include, inter alia: • Genuine consultation with those affected; • Adequate and reasonable notice for all affected persons prior to the scheduled date of eviction; • Information on the proposed evictions, and where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected; • Especially where groups of people are involved, government officials or their representatives to be present during an eviction; • All persons carrying out the eviction to be property identified; • Evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise; • Provision of legal remedies; and

1

Committee on Economic, Social and Cultural Rights, General Comment 4, The right to adequate housing (Sixth session, 1991), U.N. Doc. E/1992/23, annex III at 114 (1991), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 18 (2003).

2 Id. and Committee on Economic, Social and Cultural Rights, General Comment 7, Forced evictions, and the right to adequate housing (Sixteenth session, 1997), U.N. Doc. E/1998/22, annex IV at 113 (1997), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 45 (2003).

3 Committee on Economic, Social and Cultural Rights, General Comment 7, Forced evictions, and the right to adequate housing, para. 14, (Sixteenth session, 1997), U.N. Doc. E/1998/22, annex IV at 113 (1997), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 45 (2003).

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• Provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts.4 13.

Furthermore, even if the above conditions have been met, evictions should

not result in rendering individuals homeless or vulnerable to the violation of other human rights. Where those affected are unable to provide for themselves, the authorities must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be, is available.5 Furthermore, evictions cannot be undertaken in a discriminatory manner.6

14.

Finally, as mentioned above, houses of non�Roma are also in the protection

area of the gas line. However, these homes are not being threatened with forced eviction, which raises the issue of whether or not there is a racially discriminatory intent behind the threatened evictions. And, in any event, if carried out the evictions would have a racially discriminatory effect.

15.

Another reason citing for the eviction is that some of the land is subject to

restitution claims on account of the land being confiscated decades ago from previous owners. While the property rights claims are noted by COHRE, the remedy for enforcing property rights should not and indeed can not lawfully be implemented by carrying out a gross violation of human rights, particularly when the rationale for such evictions is the unwillingness of the Slovak Republic to fulfil the right to adequate housing without discrimination.

16.

Indeed, as mentioned above, evictions can only be justified in highly

exceptional circumstances and after all feasible alternatives to eviction have been explored in meaningful consultation with the persons affected.7 In this case, not only has this process not been followed, but there exist feasible alternatives to remedying a property rights claim that do not entail committing a gross violation of 4

Id. at para. 16.

Id. at para. 17.

6 See Article 2(2) of the International Covenant on Economic, Social and Cultural Rights.

7 See Committee on Economic, Social and Cultural Rights, General Comments. Nos. 4 and 7.

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human rights. For instance, the Slovak Republic could provide compensation to the ostensible owner of the land in question and then meet its obligation to respect, protect and fulfil the right to adequate housing by regularising the Romani community in Plavecký Štvrtok including by providing the communities with a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats.8

IV.

Urgent Request for Early Warning Procedure

17.

The Plavecký Štvrtok Romani community is under imminent threat of

violation of Articles 2 and 5(e)(iii) of the International Convention on the Elimination of All Forms of Racial Discrimination for its failure to respect and to protect the housing rights, including the prohibition on forced eviction, of the community.

18.

Forced eviction and destruction of homes will result in irreparable harm to

the community. Such irreparable harm includes, inter alia, the loss of housing and other personal belongings, the dangers associated with lack of shelter due to resulting homelessness, and the loss of social networks.

19.

Consequently, COHRE urgently requests that CERD intervene with the

Republic of Slovakia under its Early Warning procedures and in doing so require an immediate halt to any evictions.

20.

Remedies should also include the regularization of the community including

the provision of a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats.

21.

All remedies should be implemented with the meaningful participation of the

affected members of the community.

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This is essentially the process used by the Republic of South Africa in the case of Modder East Squatters and Another v Modderklip Boerdery (Pty) Ltd (SCA 187/03).

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22.

COHRE reserves the right to amend this Complaint.

Respectively submitted,

Bret G. Thiele Senior Expert for Litigation and Legal Advocacy Centre on Housing Rights and Evictions (COHRE)

Salih Booker Executive Director Centre on Housing Rights and Evictions (COHRE)

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