COHRE Housing & ESC Rights Law Quarterly Vol7 No.4 2010

Centre on Housing Rights & Evictions

Vol. 7 No. 4 - December 2010

Housing and ESC Rights Law Quarterly National and international legal developments on housing and economic, social and cultural rights for human rights advocates and activists.

COHRE wins case against Italy P2

swiss tribunal denies rights P5

The right to life in india P7

In a recent decision in COHRE v. Italy, the European Committee of Social Rights found Italy in violation of the right of Roma and Sinti to adequate housing and other rights. The Committee, for the first time ever, also defined and found an “aggravated violation” of the Revised European Social Charter with regard to forced evictions.

A case note by Evelyne Schmid critiques a recent disappointing Swiss judicial ruling that the International Covenant on Economic, Social and Cultural Rights is not justiciable before Swiss courts but rather merely guides the legislative branch.

In Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors, the High Court of Delhi rules on maternal mortality and the use of the Directive Principles of the Indian Constitution and international law to inform justiciable Constitutional rights.

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By Bret Thiele, COHRE

COHRE v. Italy: Accountability for violations of housing rights of Roma European Committee of Social Rights hands down groundbreaking decision

Bret Thiele is COHRE’s Senior Expert on Litigation and Legal Advocacy.

On 6 July 2010, the European Committee of Social Rights handed down a groundbreaking decision in the case of Centre on Housing Rights and Evictions (COHRE) v. Italy.1 The case dealt with violations of the Revised European Social Charter, specifically violations of housing and other social and economic rights of Roma and Sinti communities since the issuance of socalled “emergency measures.”

The decision in COHRE v. Italy was made public on 22 October 2010 on an expedited basis by the Committee of Ministers of the Council of Europe with the adoption of resolution CM/ ResChS(2010)8, in which the Committee of Ministers welcomed the Italian “authorities’ commitment to ensure the 1

effective implementation of the rights deriving from the revised European Social Charter for every individual, including for persons belong to the Roma communities.”2 The decision holds Italy accountable for policies and practices that have resulted in Roma and Sinti residents living in segregated and grossly inadequate housing

...Romani camps have been “ destroyed and their inhabitants forcibly evicted and often expelled from Italy...

„

conditions, as well as forced eviction of entire communities and expulsion of migrant Roma from Italy. The case also

European Committee of Social Rights, Centre on Housing Rights and Evictions (COHRE) v. Italy, Complaint No.

58/2009, decision on the merits of 6 July 2010.

2

Council of Europe, Committee of Ministers, resolution CM/ResChS(2010)8, Collective complaint No. 58/2009 by the

Centre on Housing Rights and Evictions (COHRE) against Italy, adopted by the Committee of Ministers on 21 October 2010 at the 1096th meeting of the Ministers’ Deputies.

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held Italy to account for the underlying racist and xenophobic climate created in that State. The European Committee of Social Rights found that Romani camps have been destroyed and their inhabitants forcibly evicted and often expelled from Italy by state police or other representatives of the public authority, frequently without notice and/or without the option of alternative housing. Other camps in various regions throughout Italy have been the target of arson or vandalism based on racial hatred. The perpetrators of these crimes have rarely been prosecuted or even investigated by local authorities.

The Committee found Italy in violation of the right of Roma and Sinti to adequate housing; the right of Roma and Sinti families to social, legal and economic protection; the right of Roma and Sinti to protection against poverty and social exclusion; and the right of migrant Roma families to protection and assistance. The Committee read all of these substantive rights in conjunction with the Article E prohibition on discrimination, which reads: “The enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status.”3

Article 31: The right of Roma and Sinti to adequate housing The Committee first examined Article 31 3

§ 1, 31 § 2 and 31 § 3 separately. Article 31 of the Revised Charter states: With a view to ensuring the effective exercise of the right to housing, the Parties undertake to take measures designed:

1.

to promote access to housing of an adequate standard;

2. to prevent and reduce homelessness with a view to its gradual elimination; 3. to make the price of housing accessible to those without adequate resources.4

In examining Article 31 § 1, the Committee considered the principle of progressive realisation and examined that principle through the lens of deliberately retrogressive measures.

COHRE alleged that rather than remedying the decision in European Roma Rights Centre (ERRC) v. Italy, which dealt with similar housing issues, Italy has engaged in deliberately retrogressive measures that resulted in a worsening of the housing situation

European Social Charter (Revised), Art. E, Council of Europe Treaty Series No. 163, adopted 3 May 1996, entered

into force 1 July 1999.

4

Ibid.

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for Roma and Sinti, including increased inadequate housing conditions and racial segregation. The Committee reiterated that “adequate housing under Article 31§1 means a dwelling which is safe from a sanitary and health point of view” that “possess[es] all basic amenities, such as water, heating, waste disposal, sanitation facilities and electricity and must also be structurally secure, not overcrowded and with secure tenure supported by the law.”5 The Committee found that since the adoption of so-called “security measures” in 2008, the living conditions of Roma and Sinti in camps had indeed worsened.6 It also found that those measures had directly targeted this vulnerable group and that no adequate steps had been taken to take due and positive account of the differences of the population concerned. Rather, the Italian authorities contributed to the stigmatisation of Roma and Sinti. Consequently, Italy was found in violation of Article 31 § 1 of the Revised Charter.

The Committee examined forced evictions under Article 31 § 2. In doing so, the Committee relied on the prohibition on forced eviction framework under the International Covenant on Economic, Social and Cultural Rights.

5

Specifically, the Committee considered General Comments No. 4 and No. 7 of the Committee on Economic, Social and Cultural Rights as relevant international law applicable to the present case. The Committee explicitly referred to those General Comments for the principle that “all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats,” that evictions can “only be justified in the most exceptional circumstances,” and that “all feasible alternatives [to eviction] are explored in consultation with the affected persons.” The Committee also referred to the due process protections in paragraph 16 of General Comment No. 7 as well as the principle that “evictions should not result in rendering

European Committee of Social Rights, COHRE v. Italy, Complaint No. 58/2009, Decision on the Merits, 25 June

2010 at para. 21, quoting 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) 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).

6

In 2007 and 2008, Italian authorities adopted Pacts of Security and Security Decrees that targeted Roma and

Sinti residents. These “security measures” allowed for monitoring Roma and Sinti settlements, the carrying out of a census of Roma and Sinti, provided authorisation for eviction, and called for expulsion of migrants in the name of public safety.

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individuals homeless or vulnerable to the violation of other human rights” and “that [therefore] alternative housing, resettlement or access to productive land, as the case may be, is available.”7 The Committee also found that since European Roma Rights Centre (ERRC) v.

Italy was handed down, forced evictions not only continued without respecting the dignity of the persons concerned and without alternative accommodation being made available, but the situation had actually grown worse. It also found that violence had been used in carrying out forced evictions and that personal belongings had been destroyed. Furthermore, it was found that the forced evictions specifically targeted the Roma and Sinti communities and that the public authorities did nothing to stop violence by those carrying out forced evictions. As a consequence of the above, the Committee for the first time defined and found an “aggravated violation” of the Revised Charter. The Committee defined an “aggravated violation”, stating that: The Committee considers that an aggravated violation is constituted when the following criteria are met: •

•

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on the one hand, measures violating human rights specifically targeting and affecting vulnerable groups are taken; on the other, public authorities not only are passive and do not takeappropriate action against the perpetrators of these violations, but they also contribute to such violence. 8

Finally, the Committee held that these forced evictions were a challenge to community interests and the fundamental common standards shared by Council of Europe Member States, including standards of human rights, democracy and the rule of law, and thus the situation required urgent attention from the Council of Europe Member States.9 Based on the foregoing, the Committee found an aggravated violation of Article 31 § 2.

With respect to Article 31 § 3, the Committee considered the issue of access to adequate housing for Roma and Sinti.

The Committee found no evidence to establish that Italy had taken sustained positive steps to improve the housing situation of Roma and Sinti since the decision in European Roma Rights Centre v. Italy was handed down and that Roma and Sinti still predominately resided in segregated housing without access to social housing or housing subsidies. Accordingly, there was a finding of a violation of Article 31 § 3 of the Revised Charter.

Article 16: The right of families to social, legal and economic protection The Committee looked at two issues under Article 16, which states: Part I: The family as a fundamental unit of society has the right to appropriate social, legal and economic protection to ensure its full development.

Part II: With a view to ensuring the necessary conditions for the full development of the family, which is a fun-

European Committee of Social Rights, Centre on Housing Rights and Evictions (COHRE) v. Italy, Complaint No.

58/2009, Decision on the Merits, 25 June 2010 at para. 21.

8

Ibid at para. 76.

9

Ibid at para. 78.

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damental unit of society, the Parties undertake to promote the economic, legal and social protection of family life by such means as social and family benefits, fiscal arrangements, provision of family housing, benefits for the newly married and other appropriate means.10 First, they considered the implicit right to adequate housing as first laid out in European Roma Rights Centre (ERRC) v. Greece in 2004. The Committee held that a violation of Article 31 constituted a prima facia violation of Article 16 in the context of family housing.

The second issue under Article 16 involved the right of a family to protection against undue interference in family life. In particular, the Committee looked at a census being taken of only Roma and Sinti residents of Italy. The Committee considered the manner in which Italian authorities carried out the census on Roma and Sinti, which included the collection of fingerprints, the use of identification badges, and the requirement to get formal permission from authorities to enter and exit Romani and Sinti camps and settlements. In doing so, the Committee relied on the jurisprudence of the European Court of Human Rights on Article 8 of the European Convention on Human Rights, and determined that the authorities exceeded the principle of proportionality and that the census as undertaken was not necessary in a democratic society. Here, the Committee applied the margin of appreciation concept developed by the European Court of Human Rights.11 The Committee adopted the European Court’s holding that the margin of appreciation “will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights.” 12 The Committee found that the census was undertaken for

discriminatory reasons and was not used to solve any social problem, and thus there was a violation of Article 16 in conjunction with Article E. Article 30: Right to Protection against Poverty and Social Exclusion The Committee also analyzed the right to protection against poverty and social exclusion in conjunction with the Article E prohibition on discrimination. In doing so, the Committee focused in particular on the right to participation that forms part of all economic and social rights, finding that right to be embodied in Article 30 of the Revised European Social Charter. Article 30 provides that: With a view to ensuring the effective exercise of the right to protection against poverty and social exclusion, the Parties undertake: (a) to take measures within the framework of an overall and co-ordinated approach to promote the effective access of persons who live or risk living in a situation of social exclusion or poverty, as well as their families, to, in particular, employment, housing, training, education, culture and social and medical assistance; (b) to review these measures with a view to their adaptation if necessary.13 The Committee held that “under Article 30, States have the positive obligation to encourage citizen participation in order to overcome obstacles deriving from the lack of representation of Roma and Sinti in the general culture, media or the different levels of government, so that these groups perceive that there are real incentives or opportunities for engagement to counter the lack of representation.” 14 In particular, the failure to facilitate access

10

European Social Charter (Revised), Art. 16, Council of Europe Treaty Series No. 163, adopted 3 May 1996, entered into force 1 July 1999.

11

See, e.g., European Court of Human Rights, Connors v. The United Kingdom, judgment of 27 May 2004.

12

European Committee of Social Rights, COHRE v. Italy, Complaint No. 58/2009, Decision on the Merits, 25 June 2010.

13

European Social Charter (Revised), Art. 30, Council of Europe Treaty Series No. 163, adopted 3 May 1996, entered into force 1 July 1999.

14

European Committee of Social Rights, COHRE v. Italy, Complaint No. 58/2009, Decision on the Merits, 25 June 2010 at para. 107.

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to identification documents prevented Roma and Sinti from participating in decision-making processes, which results in further marginalisation and social exclusion as well as stigmatisation constituting discriminatory treatment in violation of Article 30 taken in conjunction with Article E. The Committee also found that Italy violated Article 30 by failing to invest in real efforts to prevent and eradicate poverty affecting Roma and Sinti and by failing to adopt an overall and coordinated approach to promoting effective access to housing for persons who live or risk living in a situation of social exclusion. It also held that its findings under Article 31 in conjunction with Article E related to housing policy for Roma and Sinti amounted to a prima facia violation of Article 30.

Article 19: The Right of Migrant Workers and Their Families to Protection and Assistance The Committee issued jurisprudence under Article 19 that is highly relevant to ongoing violations of migrants rights in Italy but and a range of other European countries. Article 19 reads in relevant part: Part I: “Migrant workers who are nationals of a Party and their families have the right to protection and assistance in the territory of any other Party.”

Part II: “With a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Party, the Parties undertake: 1. to maintain or to satisfy themselves that there are maintained adequate and free services to assist such workers, particularly in obtaining accurate information, and to take all

appropriate steps, so far as national laws and regulations permit, against misleading propaganda relating to emigration and immigration; …

4. to secure for such workers lawfully within their territories, insofar as such matters are regulated by law or regulations or are subject to the control of administrative authorities, treatment not less favourable than that of their own nationals in respect of the following matters: … c. accommodation; …

8 to secure that such workers lawfully residing within their territories are not expelled unless they endanger national security or offend against public interest or morality; …. 15 Under Article 19 § 1, the Committee addressed racist and xenophobic propaganda that fostered a climate of abuse of Roma and Sinti.

The Committee held that “States must take measures to prevent misleading propaganda relating to immigration and emigration” and found that Italy had retrogressed with respect to its anti-discrimination laws dealing with incitement of racial hatred and violence and racially-motivated offences.16 The Committee also found that Italy had used xenophobic political rhetoric targeting Roma and Sinti. Since Italy failed to take all appropriate steps against misleading propaganda by means of legal and practical measures, particularly to tackle racism and xenophobia affecting Roma and Sinti, the Committee found an aggravated violation of Article 19 § 1 of the Revised Charter.

With respect to Article 19 § 4, the Committee reiterated the right of migrants workers to treatment not less favourable than that of nationals in the area of, inter alia, accommodation and held that “States should pursue a positive and continuous course of action providing for

15

European Social Charter (Revised), Art. 19, Council of Europe Treaty Series No. 163, adopted 3 May 1996, entered into force 1 July 1999.

16

European Committee of Social Rights, COHRE v. Italy, Complaint No. 58/2009, Decision on the Merits, 25 June 2010 at paras. 136-137.

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more favourable treatment of migrant workers.” 17 While it was unclear how many Roma and Sinti were migrants from non-European Union countries, it was undisputed that this population included Roma and Sinti migrant workers from other States Parties to the Revised European Social Charter that were in a legal status in Italy. The Committee also held that its holding regarding Articles E and 31 also applied to Roma and Sinti migrants and their families residing legally in Italy.18 The inadequate housing situation thus amounted to a violation of Article 19 § 4 read in conjunction with Article E of the Revised Charter.

Finally, the Committee for the first time examined the issue of mass expulsion, holding that mass expulsion violated Article 19 § 8 of the Revised Charter. In arriving at this conclusion, the Committee recalled that: expulsions for offenses against public order or morality shall only be in conformity with the Revised Charter if they constitute a penalty for a criminal act, imposed by a court or a judicial authority, and are not solely based on the existence of a criminal conviction but on all aspects of the non-national’s behaviour, as well as the circumstances and the length of time of their presence in the territory of the State.19

The Committee also recalled that a migrant worker’s family members may not be expelled as a consequence of his or her own expulsion.

The Committee applied these criteria to the issue of collective or mass expulsion, and also referred to the jurisprudence of the European Court of Human Rights which proscribes collective expulsion as a violation of Article 4 of Protocol 4 to the European Convention on Human Rights The European Court of Human Rights has defined collective expulsion as “any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group.”20 It was also found that because of the discriminatory legal framework under the so-called “security measures”, Roma and Sinti were unable to access identification documents necessary to legalise their residence status and as a consequence citizens of other European Union countries as well as citizens of Italy had been expelled without due process protections.

Consequently, the Committee held that the expulsion of Roma and Sinti from Italy was a violation of Article 19 § 8 read in conjunction with Article E of the Revised Charter.

17

European Committee of Social Rights, COHRE v. Italy, Complaint No. 58/2009, Decision on the Merits, 25 June 2010 at para. 143.

18

Ibid. at paras. 145-146.

19

Ibid at para. 151.

20

European Court of Human Rights, Conka v. Belgium, Application No. 51564/99, judgment of 5 February 2002.

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By Evelyne Schmid

Case note: Swiss Federal Tribunal Tribunal misses crucial opportunity to enforce international standards

In May 2010, the Swiss Federal Tribunal confirmed its earlier stance on the International Covenant on Economic, Social and Cultural Rights – namely that the Covenant is “generally not directly applicable” but merely “directed at the legislative branch.”

The case centred on the issue of remuneration for public holidays. The case was brought by a French teacher against a foundation for adult learning in Geneva. The teacher asked for retroactive remuneration for public holidays, something that was not foreseen by her employment agreement based on hourly wages. Swiss case law distinguishes those working with agreements based on hourly rates and those hired with monthly salaries. Those working with hourly rates generally only get paid for the time they actually work, while those with monthly wages usually get the same monthly payment whether or not there were public holidays in that month.

The appeals tribunal in Geneva ruled in favour of the teacher and held in November 2009 that Article 7(d) of the International Covenant on Economic, Social and Cultural Rights gives rise to a justiciable right to remuneration for public holidays, including for workers who are employed on hourly rates.

The decision was appealed by the employer. The Swiss Federal Tribunal concluded that workers paid hourly rates generally do not have an entitlement to paid holidays, with the exception of 1 August (the constitutionally enshrined national holiday). The plaintiff argued that an obligation to remunerate public holidays for all categories of workers follows from Article 7(d) of the Covenant, ratified by Switzerland. The Tribunal deferred to the legislative branch by emphasising its earlier jurisprudence stating that the provisions of the Covenant are “programmatic” and do “in principle not give rise to justiciable rights.” The Tribunal, however, admitted

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that it was not excluded that “one or the other” provisions of the Covenant could be considered to be directly applicable.

According to the Tribunal, the right to form and adhere to trade unions would be such exceptions, but the Tribunal does not justify this selection.

With the judgment the tribunal has missed yet another opportunity to engage with Covenant rights. The decision of the Tribunal simply hinges upon a myth; it continues to assume that

“ With the judgment, the tribunal has missed yet another opportunity to engage with Covenant rights.

„

Covenant provisions are inherently incapable of being subjected to the scrutiny of a court of law – an assumption that has been refuted time and time again by the UN Committee on Economic, Social and Cultural Rights, including in its General Comment No. 9 on domestic application of the Covenant, as well as developments at the national, regional and international adjudicative levels.

Even more surprisingly, the Tribunal cites Matthew Craven’s seminal study on the Covenant to provide support for the argument that the right to just and favourable conditions of work depends on the legislative branch. 21 On a practical level, it is certainly true that sound and implemented legislation is a primary means to protect Covenant rights, but Craven most clearly does not support the Tribunal’s view that in the absence of such legislation, the Covenant

21

obligates judges to simply defer to the legislative branch.

human rights researcher completing

Instead of restating old misconceptions, the Tribunal could have applied the provision without necessarily finding a violation. For instance, there is an argument to be made that Article 7(d) of the Covenant does not prescribe how exactly the remuneration arrangements must be structured for workers paid by hourly wages. It is conceivable that the Covenant obligation is complied with even if authorities allow that some workers are paid by an hourly lump sum negotiable between the concerned parties, considering that this hourly wage takes into account compensation of public holidays in a fair way. The rationale is that such an arrangement is more flexible and administratively easier, especially if the job is not a main occupation or for a limited duration.

Provided they are also non-discriminatory, such arrangements could be in conformity with the Covenant. The real question may then have been whether the teacher, who worked nearly full-time for the same employer, could be considered to have been remunerated for public holidays by her hourly wage arrangement. Rather than engaging with the individual aspects of the Covenant provision at hand, the Swiss Federal Tribunal preferred to repeat old misconceptions on the so-called exclusively ‘programmatic’ nature of the Covenant.

The decision of the Federal Tribunal has already made clear that much work remains to be done to overcome a very outdated approach to economic, social and cultural rights.

See Matthew Craven, The International Covenant on Economic , Social

ment

Evelyne Schmid is a

and

C ultural Rights: A Perspective on

its

a doctoral study on economic, social and cultural rights and international crimes at the Graduate Institute of International and Development Studies, Geneva.

D evelop -

(Oxford: Oxford University Press 1995).

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Case note: Delhi High Court rules on right to life Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors, W.P.(C) Nos. 8854 of 2008

The decision in Laxmi Mandal by the High Court of Delhi built upon earlier Indian jurisprudence on the Constitutional right to life as informed by the Constitution’s Directive Principles of State Policy. That earlier jurisprudence found that while the Directive Principles are not justiciable in and of themselves, they have a key role to play in relation to the judicial determination of the parameters of the right to life under Article 21 of the Indian Constitution.

for health services. Rather, the government has an obligation to facilitate access to essential health services.

Laxmi Mandal dealt with the issue of maternal mortality and involved a woman, Laxmi Mandal, who was denied access to health services during pregnancy on account of her inability to provide documentation that she was from one of the “scheduled castes” living in poverty. She ultimately died in childbirth due to her being denied access to health care. The High Court ruled that it was inappropriate to place the burden of proof on the poor to prove eligibility

The High Court ruled that it was inappropriate to place the burden of proof on the poor to prove eligibility for health services.

Building on its earlier jurisprudence, the High Court highlighted two “survival rights” at issue in this case that are guaranteed under the constitutional right to life and that are informed by the Directive Principles. First, it ruled that the right to life included the right to health care, the right to access to public

“

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health care facilities, the right to minimal standards of treatment and care, the right to protection of reproductive rights, and the right to nutrition and medical care for newborns and young CENTRE ON HOUSING RIGHTS AND EVICTIONS P.10

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young children. Second, it reaffirmed that the right to food was an integral component of the right to life. The High Court found that all of these rights are interrelated and indivisible and a lack of effective implementation of health care and nutrition schemes amounted to a violation of the right to life. In doing so, the High Court referred to international human rights law such as the International Covenant on Economic, Social and Cultural Rights, including General Comment No. 14 of the Committee on Economic, Social and Cultural Rights, as well as to the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child.

Editorial Board Salih Booker, COHRE Executive Director / Lilian Chenwi, Coordinator and Senior Researcher, Community Law Centre, South Africa / Eliane Drakopoulos, COHRE Communications Director / Colin Gonsalves, Executive Director, Human Rights Law Network, India / Aoife Nolan, Senior Lecturer, School of Law, Durham University, United Kingdom / Bruce Porter, Executive Director, Social Rights Advocacy Centre, Canada / Julieta Rossi, Director, ESCR-Net, USA / Bret Thiele, COHRE Senior Expert – Litigation and Legal Advocacy Coordinating Editor Bret Thiele, Senior Expert - Litigation and Legal Advocacy, COHRE Design åtta design sàrl Photos Cover / Roma settlement in Torino, Italy © COHRE 2008. P 1 / European Union flag. P 2 / Roma community in Europe © COHRE. P 3 / Roma homes destroyed in Europe © COHRE. P 8 / Swiss Federal Building. P 10 / Preventing maternal mortality in India © Save a Mother.

COHRE 83, rue de Montbrillant 1202 Geneva Switzerland cohre@cohre.org www.cohre.org

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