COHRE Housing and ESC Rights Law Quarterly Vol3 No.3 2006

housing and esc rights law Centre on housing rights and evictions

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Vol. 3 - No. 3 December 2006

quarterly

With the Housing and ESC Rights Law Quarterly, the COHRE ESC Rights Litigation Programme aims to present advocates and other interested persons with information on national and international legal developments related to housing and ESC rights.

CHALLENGING THE CRIMINALISATION OF HOMELESSNESS IN THE US

By Tulin Ozdeger1 Introduction - an overview of the national homelessness situation The national homelessness crisis in the United States has worsened in 2005, with 71 percent of the 24 cities surveyed by the U.S. Conference of Mayors reporting a 6 percent increase in requests for emergency shelter.2 An average of 14 percent of overall emergency shelter requests went unmet, while 32 percent of shelter requests by homeless families went unmet.3 The lack of available shelter space leaves many homeless persons with no choice but to survive on the streets of US cities.

Many US cities have responded to people living in public spaces by passing punitive local ordinances that make it illegal to sleep, eat, sit, or beg in public spaces. These ordinances are not only inhumane and counterproductive, but also frequently violate constitutional rights. In the recent case of Jones v. City of Los Angeles, six homeless plaintiffs successfully challenged the enforcement of a Los Angeles ordinance that makes it a crime to sit, sleep, or lie down in public spaces throughout the entire City.4

1 2 3 4 5 6 7

National Law Center on Homelessness & Poverty.

U.S. Conference of Mayors, A Status Report on Hunger and Homelessness in America’s Cities: A 24-City Survey (2005) 5. Full text available at: http://www.mayors.org/uscm/hungersurvey/2005/HH2005FINAL.pdf Ibid.

Jones v. City of Los Angeles 2006 WL 988301 (9th Cir. 2006).

Los Angeles Homeless Services Authority, 2005 Greater Los Angeles Homeless County (2006) at 10. Full text available at: http://homelesscount.lahsa.org/pdfs/LAHSA%20Report%20-%20Final%20Version6-4.pdf.

Jones, supra n4 at p.2.

Los Angeles, Cal., Mun. Code § 41.18(d) (2005).

1 • Challenging the criminalisation of homelessness in the US

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2 • Editorial

6 • Guaranteeing prisoners’ health rights through the courts - a South African decision

Facts There are over 80,000 homeless people in L.A. County.5 This amounts to almost 50,000 more homeless people than available shelter beds.6 As a result, thousands of homeless people in L.A. have no choice but to sit, sleep, or lie down in public due to lack of shelter space. The plaintiffs in Jones were sleeping or resting on the sidewalk at the time that they were arrested and cited for violating Ordinance § 41.18 of the L.A. Municipal Code. They were doing so either because they did not have enough money to pay for lodging, could not find a shelter bed, or were resting on the way to a shelter. Anyone who violates § 41.18 can be subject to a fine of up to $1000 or six months im prisonment, or both.7

3 • Defending the housing rights and rights to public services of Roma in Bulgaria

7 • Round-up of recent decisions in ESC rights cases

8 • A case to watch

This publication has been made possible with the support of the United Nations Housing Rights Programme, www.unhabitat.org/unhrp The views expressed in this publication are those of the COHRE ESC Rights Litigation Programme and are not necessarily shared by the UN or by UN-HABITAT

ISSN 1812-240 X

Editorial The first article in this edition,

by Tulin Ozdeger, discusses a recent decision of the US Ninth Circuit Court of Appeals involving a challenge to the enforcement of a Los Angeles ordinance that effectively criminalises homelessness. This piece is followed by an article by Daniela Mihaylova of the Equal Opportunities Association, which focuses on a number of cases being brought in Bulgaria. The litigants are challenging threatened forced evictions and seeking to remedy the negative outcomes of evictions carried out previously. The next section is a round-up of recent judgments and decisions in ESC rights cases. This edition’s ‘case to watch’ is an action being taken before the African Commission on Human and Peoples’ Rights by the Centre on Housing Rights & Evictions. COHRE is seeking to put pressure on the Government of Sudan to prevent, halt and remedy human rights violations in Darfur.

We are thankful to the Housing Rights Programme, a joint initiative of UN‑HABITAT and the UN Office of the High Commissioner for Human Rights, for providing the necessary funding to make the Housing and ESC Rights Law Quarterly a regular publication and to ensure the widest possible distribution.

We hope you find the Quarterly useful. We welcome any comments, submissions of case notes and articles, as well as information on new cases and relevant events and publications.

Please feel free to contact us at: quarterly@cohre.org

» The litigation The plaintiffs sued Los Angeles and members of the police department in federal court to limit enforcement of § 41.18. The plaintiffs argued that as long as homeless people outnumber shelter beds, homelessness in L.A. is an involuntary condition. Therefore, punishing homeless people for sitting, lying, or sleeping in public spaces violates their Eighth Amendment right under the US Constitution to be free from cruel and unusual punishment.

The District Court rejected the plaintiffs’ argument and granted summary judgment for the City. The Court rejected the plaintiffs’ reliance on Pottinger v. City of Miami8 which held that punishing homeless people for conducting life-sustaining activities, such as sleeping, in public when no shelter space was available, violated their constitutional right to be free from cruel and unusual punishment. Instead, the court followed the analysis in Joyce v. City and County of San Francisco,9 which declined to find that homelessness is a cognisable status. In granting summary judgment to the City, the court noted that the U.S. Supreme Court had never used the Eighth Amendment to protect “discrete acts of conduct even if such acts can be characterised as ‘symptomatic’ or ‘derivative’ of one’s status.”10 The Ninth Circuit ruling The plaintiffs appealed to the Ninth Circuit Court of Appeals, which reversed the District Court’s decision. The Ninth Circuit found that the District Court did not engage in a sufficient analysis of the Eighth Amendment claim. The Ninth Circuit found that Joyce, upon which the District Court had relied, was factually distinguishable, and did not agree with the analysis of the District Courts in either the Jones or Joyce cases. Relying on two Supreme Court cases, Robinson v. California11 and Powell v. Texas,12 the Ninth Circuit concluded that unlimited enforcement of § 41.18 against homeless persons in L.A. violated the Eighth Amendment. In Robinson, the Supreme Court reversed the conviction of Robinson under a law that made it a crime to be addicted to narcotics. The Supreme Court determined that punishment for such an illness or status violated the Eighth Amendment.13 In Powell, the Supreme Court upheld the conviction of Powell under a law that made it illegal to get drunk or be drunk in public spaces, because the Court found the law punished the act of getting drunk and being in public versus the condition of being an alcoholic.14 However, in a separate concurring opinion in Powell (where he agreed with the outcome of the majority decision but not with the reasoning behind it), Justice White concluded that, although not demonstrated in the evidence in the Powell case, punishing a homeless chronic alcoholic for being drunk in public would violate the Eighth Amendment.15 In addition, four other justices dissented citing the involuntariness of Powell’s uncontrollable urge to drink and inability to avoid public spaces.16 The City challenged the plaintiffs’ standing for the first time in the proceedings before the Ninth Circuit. In the 1995 Johnson v. City of Dallas case, the Fifth Circuit Court of Appeals found that the homeless plaintiffs did not have standing to use an Eighth Amendment claim to

8 76 F.3d 1154 (11th Cir. 1996).

9 87 F.3d 1320 (9th Cir. 1996).

10 Jones v. City of Los Angeles, No. CV 03-1142 ER (C.D. Cal. Jan 26, 2004) (order denying plaintiffs motion for summary judgment and granting defendant’s motion for summary judgment).

11 370 U.S. 660 (1962).

12 392 U.S. 514 (1968).

13 Robinson, supra n11 at p.666.

14 Powell, supra n12 at p533.

15 Ibid. at p.551.

16 Ibid. at p.568.

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challenge Dallas’ public sleeping law, since evidence indicated that the plaintiffs had received tickets under the law but had not been actually convicted.17 The Ninth Circuit did not agree with the Johnson ruling, citing the Supreme Court decision in Ingraham v. Wright.18 The Ninth Circuit underscored that the Court in Ingraham determined that the Eighth Amendment limits not only the kind and severity of punishment imposed on those convicted, but also what can be made criminal and punished as such.19 The Court reasoned that if plaintiffs had to be convicted in order to use the Eighth

17 18 19 20 21 22

Amendment argument, the state could “criminalise a protected behaviour or condition and cite, arrest, jail and even prosecute individuals for violations, so long as no conviction resulted.”20 Even though a conviction was not required to have standing, the court pointed out that two plaintiffs had actually been convicted under § 41.18.

Ultimately, the Ninth Circuit found that involuntariness was a key factor when determining whether laws punishing acts that are integral to one’s status violate the Eighth Amendment.21 Since Los

Angeles does not have sufficient shelter space, homeless persons must engage in basic human acts such as sitting, lying down, and sleeping in public. Thus, punishment for such behaviour violates the Eighth Amendment right to be free from cruel and unusual punishment.22 As the only decision by a US Court of Appeals on the merits of the Eighth Amendment argument to challenge public sleeping laws, the Ninth Circuit decision is a crucial ruling in the struggle to protect the human rights of homeless persons.

Johnson v. City of Dallas 61 F.3d 442 (5th Cir. 1995).

430 U.S. 651 (1977).

Jones, supra n4, at p.7.

Ibid. at p.8.

Ibid. at p.11.

Ibid.

DEFENDING THE HOUSING RIGHTS AND RIGHTS TO PUBLIC SERVICES OF ROMA IN BULGARIA Daniela Mihaylova23 Background The Roma are undoubtedly the most disadvantaged minority group in Bulgaria. For almost a decade after the introduction of democracy, national government and the local authorities failed to acknowledge the main problem faced by the Roma community. That is, discrimination in all spheres of public life, including justice, education, health care, employment, housing and political participation. The first formal recognition of the problem occurred in 1999, when the Government endorsed the Framework Program for Equal Integration of Roma into Bulgarian Society (FPEIRBS). The Framework Program did not, however, receive adequate institutional and financial support. It was succeeded by a number of National Action Plans for Implementation, which suffered

from similar weaknesses to the Framework Program, including a lack of financial responsibility and political will for implementation.

In addition, the ongoing social and economic crisis in Bulgaria as well as the recent political advances of nationalist movements has led to an increase in discriminatory practices towards Roma.

In recent months, local authorities in Bulgaria have campaigned intensely for the demolition of the small, all-Roma settlements which are located in major cities such as Sofia. Typically, the relevant municipalities issue eviction orders and demand that the Roma leave the houses in question. The Roma occupiers are generally only granted two weeks notice of the eviction.

The houses which are the subject of the eviction orders are built on land that is alleged to be municipal property. It is important to note that the Municipal Property Act 1996 allows persons to become owners of private municipal property after ten years of possession.24 Therefore, in some cases, it is possible for the occupiers to claim the houses constructed on what was originally municipal property as their own.

In many cases, forcibly evicted Roma families are rendered homeless or provided with substandard alternative housing. Municipal authorities in Bulgaria often attempt to justify the denial of alternative housing on the grounds that the Roma occupiers’ original housing was illegally constructed on municipally or privately owned land.

»

23 Daniela Mihaylova is a Legal Coordinator for the Equal Opportunities Association in Sofia. The organisation’s main working focus is to defend the equality rights of the Roma minority in Bulgaria 24 Promulgated State Gazette No. 44/21.05.1996. For the full text of Act, see: http://unpan1.un.org/intradoc/groups/public/documents/UNTC/UNPAN016425.pd

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» The legal framework Bulgaria is bound by a number of international instruments, which provide for the equal “right of everyone to an adequate standard of living for himself and his family, including ... housing, and to the continuous improvement of living conditions”.25 These include the International Covenant on Economic and Social Rights. In its General Comment No.7 on Forced Evictions, the UN Committee on Economic, Social and Cultural Rights (the Committee) stated that forced evictions are incompatible with the requirements of the Covenant.26 The Committee stated that, “[e]victions should not result in individuals being rendered homeless or vulnerable to the violation of other human rights. Where those affected are unable to provide for themselves, the State party 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”.27 The Committee has recommended a number of procedural protections in relation to forced evictions. These include: an opportunity for 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; the provision of legal remedies, and the provision, where possible, of legal aid to persons who require it in order to seek redress from the courts.

However, the Bulgarian authorities have ignored these requirements.

Amongst other things, there are no plans for discussions of possible alternatives with the affected persons in order to prevent the use

of force. In addition, Roma whose fundamental housing rights are violated frequently do not have access to effective legal remedies for their redress in practice.

In Bulgaria, international law that has been ratified by the National Assembly is binding on national courts and must be applied even where it contradicts national law.28 However, in general, judges are not familiar with international obligations - although several younger members of the judiciary have recently begun to refer to international human rights instruments in their decisions.

Bulgarian legislation does not guarantee the right to adequate housing. The Bulgarian Constitution declares in Article 33(1) that “[t]he home shall be inviolable”, but otherwise lacks provisions on the right to housing or the right to an adequate standard of living. In addition, Bulgarian domestic law fails to provide a legal definition of housing rights.

Administrative eviction of private individuals in cases of unwarranted use or occupation of state or municipal property is permitted under the Municipal Property Act 199629 and the State Property Act Law 1996.30 However, contrary to international law requirements, neither law provides protection in cases in which persons affected by evictions are rendered homeless.

The administrative evictions envisaged under both Acts are carried out on the basis of an order of the mayor or the head of the county administration. This order is implemented directly by the municipal bodies or the police, without any participation of a court official.

Significantly, the filing of a judicial appeal by a citizen against the

eviction procedure does not have an automatic suspensory effect.

Thus, evictions can be carried out arbitrarily by the administrative bodies, without careful examination on the part of a court of all the circumstances of the case.

The litigation In June 2006, three Romani communities in Sofia initiated legal actions against the Sofia Municipality.

They challenged several different forms of ethnic discrimination in relation to housing rights. The cases centre on: (a) threatened forced evictions; (b) the previous failure of the Municipality to secure adequate alternative housing for evictees following forced evictions, and, (c) the refusal of the Municipality to provide public transport for the largest Roma settlement in Sofia - Fakulteta. The complaints have been filed by the Equal Opportunities Association within a framework of a COHRE Housing Rights Project. (a) Forced eviction cases In the summer of 2006, two small Romani communities in Sofia received eviction orders from the Sofia Municipality.31 The eviction orders stated that the communities were occupying illegally constructed houses located on public municipal land. The Municipality gave the Roma families two weeks to leave the property. No alternative housing was discussed or provided. As stated above, under the relevant Bulgarian legislation, municipal eviction orders can be appealed before the relevant court authorities. However, the lodging of such an appeal will not of itself stop the implementation of the orders. That said, the courts can be expressly requested to grant an injunction suspending the implementation of an eviction order

25 Art.11(1) of the International Covenant on Economic, Social and Cultural Rights 26 Committee on Economic, Social and Cultural Rights, General Comment No. 7, The Right to Adequate Housing: Forced Evictions (Sixteenth session, 1997), U.N. Doc. E/1998/22, annex IV, 113 (1997).

27 Ibid., para 16.

28 Art. 5, Constitution of the Republic of Bulgaria, adopted on July 12, 1991. For the full text of the Constitution, see: http://www.bild.net/constitut.htm 29 Art. 65.

30 Promulgated State Gazette No. 44/21.05.1996, Art.. 80. For the full text of Act, see: http://unpan1.un.org/intradoc/groups/public/documents/UNTC/UNPAN016424.pdf 31 Dobri Jeliazkov community, Vuzrajdane sub-municipality, Sofia, and Tzarigradsko shose community, Iskar sub-municipality, Sofia.

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for the duration of the appeal of that order. In this case, the Sofia City Court was presented with - and approved - applications for injunctions suspending the implementation of the eviction orders.

The Court found that the Roma families concerned had no alternative housing and that immediate eviction would endanger their rights to family life a (enshrined in the Bulgarian Constitution and Article 8 of the ECHR, to which Bulgaria is a party) and adequate housing, as well as violating the Roma children’s rights to housing and education.32 Currently, the appeals against the municipal eviction orders are pending before the Sophia City Court.

are being accompanied by civil claims for ownership on the basis of continuing possession being taken before the Civil Division of the Sofia District Court. According to the practice of the Supreme Administrative Court, the administrative court procedures on the eviction issue should be suspended until the Civil Division of the Sofia District Court renders its decision on the ownership matter. This will hopefully provide enough time for a politically responsible decision to be reached on the proposed evictions faced by the communities concerned.

During its consideration of the injunction applications, the Court instructed the claimants to provide evidence of legal ownership. It is important to note that the Roma families in these cases do not posses ownership deeds. Under Bulgarian internal law, this will most probably result in the eviction orders that were made by the Municipality being upheld by the Court. Indeed, in a recent, similar case, the Supreme Administrative Court upheld a municipal eviction order against Roma families. The scheduled eviction was only halted because the Bulgarian Government was officially addressed on the matter by a group of European Parliamentarians.33

In the summer of 2000, the Sofia Municipality evicted a small Roma community (Assanova mahala) which had been living in the Lulin Sub-municipality in Sofia. The eviction occurred almost overnight and the land was sold to BILLA hypermarkets (a foreign company), which built a shopping centre on the side. The community was accommodated in wagons placed along a highway leading from Sofia to the Serbian boundary.

Both of the communities currently under threat of eviction have occupied their houses for many years - with the Municipality’s acquiescence. The Dobri Jeliazkov community has lived on the land in question for almost 70 years, while members of the Tzarigradsko Shose community have occupied their homes for over 18 years. The appeals against the Municipality’s eviction orders are being presented to the Administrative Division of the Sofia City Court. These actions

(b) Challenging State failure to provide adequate alternative housing

What was promised to be a temporary solution has lasted for over six years. The people live in conditions that endanger their health and violate their rights to adequate housing, family life and proper human treatment. (This latter right is enshrined in Article 3 the ECHR and could be implied from Article 29 of the Bulgarian Constitution (although this has not yet occurred)).34 More than 160 adults and children live with no water supply. Until very recently they also had no electricity. The children are compelled to go to a village school, as no Sofia school will enrol them. These village schools are of a lower standard than of those in Sofia. The claimants are asking the court to declare that

the Municipality has failed to act in accordance with the international human rights instruments ratified

by Bulgaria. The case is pending before the Sofia District Court. (c) Litigating the right to fair and equal public services The final case involves a challenge to the lack of public transport for Faculteta - the largest Roma settlement in Sofia. The settlement is home to nearly 35 000 people and there is not a single bus to serve the needs of the population.

The people from the most distant parts of the settlement are forced to travel almost two kilometres in order to reach the first available public transport. The Municipality also fails to provide school transport for those children enrolled in the mainstream schools outside the Roma district. The situation violates the occupiers’ right to fair and equal public services, which is enshrined in Article 37 of the Protection Against Discrimination Act 2004. The applicants are requesting the court, first, to make a finding of discrimination the basis of ethnicity and, second, to oblige the respondent (Sofia Municipality) to act so as to secure public transport services for the community.

Conclusion The litigation described has two primary aims. The first is to defend the rights of the specific communities. Second, it is hoped that the litigation will serve both to raise awareness amongst civil society and the responsible authorities and provoke policy development.

The outcomes of the various cases will be used to bolster campaigns for legislative change, particularly in relation to the legalisation of the Roma property - an obligation undertaken by the Bulgarian government when it endorsed the Framework Program for Equal Integration of Roma in 1999.

32 Art. 53(1) of the Bulgarian Constitution provides that “everyone shall have the right to education”.

33 This case involved the Batelova Vodenitza community from the Vuzrajdane sub-municipality of Sofia. As all domestic remedies have been exhausted, the community is planning to bring a complaint to the European Court of Human Rights with the support of the Bulgarian Helsinki Committee.

34 Art. 29 provides that, “[n]oone shall be subjected to torture, atrocious, inhuman or degrading treatment and forced assimilation”.

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guaranteeing prisoners’ health rights through the courts - a south african DECISION EN & Ors. v. The Government of South Africa & Ors.35 High Court of South Africa (Durban and Coast Local Division) Prisoners’ rights - people living with HIV/AIDS - health rights

By Julia Bishop Facts Fifteen HIV-positive inmates of the Westville Correctional Centre (WCC), along with an NGO, the Treatment Action Campaign, presented a case to the Durban High Court. They asserted that by not allowing the Applicants and other similarly situated offenders at WCC access to receive antiretroviral treatment (ART), the Government was, amongst other things, violating their constitutional rights to have access to health care services (Section 27) and to conditions of detention that are consistent with human dignity, including medical treatment (Section 35(2)(e)).

According to the National Department of Health’s Operation Plan36 (OP), patients with a CD 4 count of below 200 need to commence ART.37 Many of the Applicants had CD4 counts of less than 150, and several had counts of 3 or 4.38 Before starting ART, patients need to meet certain ‘readiness criteria’ set out in the National Department of Health Guidelines. These are assessed by Multi-Disciplinary Teams at applicable ART centres.

According to the prison’s operational plan, prisoners had to attend four counselling sessions at an accredited health centre before they were eligible to receive ART. The

prison, however, only allowed one prisoner to leave on any given day to undergo a counselling session. This meant that prisoners were waiting much longer than was necessary to begin counseling and, as a result, to receive ART. According to the Court, the key issue in the case was whether the respondents were taking reasonable steps or measures to ensure whether the Applicants were receiving adequate medical treatment.

Decision Citing section 237 of the Constitution, which stipulates that “all constitutional obligations must be performed diligently and without delay”,39 Justice Pillay found that the treatment and medical care provided to the Applicants and other similarly situated prisoners at WCC were neither constitutionally adequate nor reasonable in the circumstances. Hence, sections 27(2) and 35(2)(e) of the South African Constitution had been violated.

Amongst other things, the judge ordered that the State remove the restrictions that prevented the Applicants - and all other similarly situated prisoners at WCC who meet the criteria set out in the OP - from accessing ART at an accredited public health facility. He further directed the State to provide ART at an accredited public

health facility to the applicants and all other similarly situated prisoners at WCC, in accordance with the OP. He also granted a structural interdict, in terms of which the State was compelled to provide details on how it would ensure that the applicants and all other similarly situated prisoners received ART within a set timeframe.

Post-judgment developments The State has been granted leave to appeal on the basis of their argument that the trial judge should have recused himself because his daughter had a relationship with the organisation representing the prisoners, the Aids Law Project.40 At the same time an order was granted that Pillay J’s order was to be implemented pending the outcome of the appeal.41 Implementation did not occur, however. The refusal of the government to proceed with treatment for prisoners with a CD4 count of less than 200 was described by the Treatment Action Campaign as “callous AIDS denialism”.42 Regardless of whether or not the government’s appeal proves to be successful, it is more than probable that prisoners in desperate need of ART treatment will die before the appeal is heard by the Supreme Court of Appeal.

35 Case no. 4576/2006. The full text of the judgment is available at: http://www.alp.org.za/modules.php?op=modload&name=News&file=article&sid=297 36 Operation Plan for Comprehensive HIV and AIDS Care, Management and Treatment for South Africa.

37 The CD4 count is a measure of the number of white blood cells in the body as an estimate of the progression of the HIV virus.

38 IOL, ‘Judgment Expected in Prisoner ARV Case’, (June 22 2006). Available at: http://www.int.iol.co.za/index.php?art_id=qw1150923241774B263&set_id=1&click_id=13&sf= 39 At para. 39 of the judgment.

40 Date of decision, 20 July 2006.

41 Date of decision, 20 July 2006.

42 Treatment Action Campaign, ‘South African Government Disobeys Court Order - Contempt Places Lives of Prisoners with HIV/AIDS at Immediate Risk’, Press Release (15 Aug. 2006).

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The non-implementation of the High Court’s order by the respondents was the subject of a judgment of Justice Nicholson of the Durban High Court on 28 August, 2006.43 Finding the respondents to be in contempt of the order of Pillay J, Nicholson J stated that, if the refusal to comply with the order resulted from instructions from the South African Government, then “we face a grave constitutional cri-

sis involving a serious threat to the doctrine of the separation of powers.

Should that continue the members of the judiciary will have to consider whether their oath of office requires them to continue on the bench”.44 He stated that if non-compliance was for other reasons, then the other respondents (the Head of the Westville Correctional Centre, the Minister of Correctional Services, the Area Commissioner of Correc-

tional Services Kwazulu-Natal, the Minister of Health and the Kwazulu-Natal MEC for Health) “must be disciplined, either administratively or in an employment context, for their delinquency”.45 Justice Nicholson extended the deadline by which the State was to provide the information sought by Pillay J. The State subsequently submitted the required information within the prescribed period.

43 The full text of the judgment is available at: http://www.alp.org.za/modules.php?op=modload&name=News&file=article&sid=297 44 Ibid, para 33.

45 Ibid.

ROUND‑UP OF RECENT DECISIONS IN ESC RIGHTS CASES On 19 September 2006, the Western Australian Noongar people won rights to land, which includes a major Australian city.46 A group of 80 Noongar people, represented by the South-West Aboriginal Land and Sea Council, lodged the Single Noongar claim in the Federal Court in September 2003.47 The claim covered 193,956 square kilometres of land including the city of Perth. Federal Court judge Murray Wilcox ruled that the Noongar people were the traditional owners of the whole claim area, excluding offshore islands and land and waters below the low-water mark, and that their society had been maintained since European settlement in 1829.48 The ruling means that Noongar people can

now exercise native title rights over land where native title has not been extinguished by “legislative or executive acts” such as freehold land.49 Wilcox J stated the Noongar people will be able to maintain and protect significant sites in the area, and hunt, fish and gather food.50 They will also be able to use the land to teach traditional laws and customs.51 In addition, the ruling gives Noongars rights to access and carry out traditional activities such as fishing, hunting and maintaining sacred sites.52 Wilcox J emphasised that “the vast majority” of private landholders in Perth would be unaffected by the determination, as native title did not affect freehold or most leasehold land.53 He said, however, that

extensive land tenure searches of thousands of parcels of land in Perth would be required to identify undeveloped land that might be affected by native title claims.54 Most of the land at issue is understood to be state forests, unallocated Crown land, parks and some reserves.55 Significantly, the decision demonstrates that native title is not confined to the Outback, where most successful claims have occurred.56 The State Government has expressed its intention to appeal against the decision.

The Massacres of Ituango v.

Colombia was decided on the merits by the Inter-American Court of Human Rights on 1 July 2006.57 The case was brought by Grupo

»

46 Rod McGuirk, ‘Aborigines win rights to city’s land in legal first’, The Scotsman, 22 Sept. 2006. The full text of the decision, Bennell v State of Western Australia [2006] FCA 1243, can be found at: http://www.austlii.edu.au//cgi-bin/disp.pl/au/cases/cth/federal_ct/2006/1243.html?query=noongar%20+%202006 47 ‘Native Title Ruling Rejected’, 20 Sept. 3006: http://www9.sbs.com.au/theworldnews/region.php?id=131399&region=7 48 Ibid.

49 K. Elliot, ‘Perth Nyoongar native title claim upheld by Fed court - State to appeal’, Perth Indymedia, 19 Sept. 2006.

50 Ibid.

51 Ibid.

52 Ibid.

53 Victoria Laurie, ‘Perth area native title claimed’ The Australian, 20 Sept. 2006.

54 Ibid.

55 Ibid.

56 McGuirk (n. 46 above).

57 The Spanish text of the judgment is available at: http://www.acnur.org/pais/docs/1509.pdf

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» Interdisciplinario por los Derechos Humanos and la Comisión Colombiana de Juristas and dealt with brutal forced evictions, displacement and housing destruction in the villages of Ituango, La Granja and El Aro in Colombia. These serious human rights violations were perpetrated by paramilitaries aligned with the Government of Colombia. COHRE intervened as amicus curiae with respect to the forced evictions and housing destruction. The InterAmerican Court found that the forced evictions and destruction of housing violated Article 11(2) (the right to be free from arbitrary or abusive interference with the home) and Article 21 (the right to property) of the American Convention on Human Rights. In its novel analysis of Article 11(2), the Court relied on the jurisprudence of the European Court of Human Rights which has previously held that similar acts were prohibited under Article 8 of the European Convention on Human Rights and Fundamental Freedoms. Consequently, the Court held that the forced evictions and housing destruction violated Article 11(2) read in conjunction with Article 21 of the American Convention on Human Rights.

By Aoife Nolan & Bret Thiele

A CASE TO WATCH At its 39th Ordinary Session, the African Commission on Human and Peoples’ Rights found Communication 296/05 - Centre on Housing Rights and Evictions (COHRE)/The Sudan admissible. With this case, COHRE seeks to hold the Government of Sudan accountable for the forced evictions and accompanying human rights violations that have plagued the people of the Darfur region for the past several years, resulting in some 200,000 people being killed and some 3 million being rendered homeless. The Communication alleges that these human rights violations amount to both a series of serious human rights violations and a massive violation of the human rights protected by the African Charter on Human and Peoples’ Rights (‘Charter’), in particular Articles 4, 5, 6, 7, 12(1), 14, 16, 18(1) and 22. With respect to economic, social and cultural rights, the case relies on the African Commission’s decision in Social and Economic Rights Action Centre and Center for Economic and Social Rights/Nigeria (SERAC)58 to argue that there have been violations of the implied rights to food and housing or shelter (including the prohibition on forced evictions) identified in that case. In addition, the Communication relies on the Commission’s analysis in SERAC to argue that the right to water (which was recognised in General Comment No. 15 of the Committee on Economic, Social and Cultural Rights subsequent to the SERAC case)59 should also be regarded as implicitly included in the Charter. The African Commission considered the case on the merits at its 40th session in Banjul, The Gambia, in November and is likely conclude its consideration at its next session in early 2007.

58 African Commission on Human Rights, Case No. 155/96, Decision made at 30th Ordinary Session, Banjul, The Gambia, from 13th to 27th October 2001. Full text of decision available at: http://cesr.org/nigeria 59 Committee on Economic, Social and Cultural Rights, General Comment No. 15, The Right to Water (Twenty-ninth session, 2002), U.N. Doc. E/C.12/2002/11 (2003).

Housing and ESC Right s Law Quart erly

The Editorial Board of the Housing and ESC Rights Law Quarterly is: • Colin Gonsalves, Executive Director, Human Rights Law Network, India; • Malcolm Langford, Senior Legal Officer, COHRE ESC Rights Litigation Programme; • Professor Sandra Liebenberg, Chair in Human Rights Law, Stellenbosch University, South Africa; • Bruce Porter, Executive Director, Social Rights Advocacy Centre, Canada; • Julieta Rossi, Director, Economic, Social and Cultural Rights Programme, CELS, Argentina; • Bret Thiele, Coordinator, COHRE ESC Rights Litigation Programme.

Coordinating Editor: • Aoife Nolan, Assistant Director, Human Rights Centre, Queen’s University, Belfast, Northern Ireland.

Contact If you have any comments, require additional copies, or wish to subscribe to the mailing list for the Housing and ESC Rights Law Quarterly, please contact: quarterly@cohre.org For general information on the COHRE ESC Rights Litigation Programme, please contact: litigation@cohre.org

Centre on Housing Rights & Evictions (COHRE) COHRE ESC Rights Litigation Programme Rue de Montbrillant 83 1202 Geneva, Switzerland tel.: +41.22.734.1028 fax: +41.22.733.8336 e‑mail: cohre@cohre.org web: http://www.cohre.org