What is a Community: Distinguishing the Right of Individuals to Housing v. the Right of Communities to Housing in the Case Law of the ECtHR

Emma Bowar (EVICT student researcher)

Introduction

883 million people live in informal settlements across the globe. Often, their homes lack access to basic necessities such as sanitation, running water and electricity. Informal settlements and their residents are often caught between situations of economic necessity, and social and legal exclusion, with few options to move elsewhere or to acquire legal ownership of the land they occupy. In the case of Ghailan and Others v. Spain, the European Court of Human Rights (hereinafter: the Court), was asked to consider an eviction order against an individual family residing in an informal settlement, and the implications such an order had for the applicants human rights.

What happened?

The applicants alleged a violation of their right to home and private life, enshrined in Article 8 of the European Convention on Human Rights (hereinafter: the Convention), following their eviction and the demolition of their home in Cañada Real Galiana. Cañada Real Galiana is the largest informal settlement in Europe, stretching 12 km and housing 8,500 people, who are of mostly Roma and Moroccan descent. Up until the entry into force of the Cañada Real Galiana Act in 2011, which introduced a model for the legal development of the land, Cañada Real Galiana was considered property of the public domain which could not be developed. In spite of this, informal settlements had been constructed on the land since the 1960’s, and Spanish authorities were mostly tolerant of the situation. However, beginning in 2005, the Municipality of Madrid (hereinafter: the Municipality) adopted a more involved attitude with regard to Cañada Real Galiana, which led them to actively oppose new constructions. The applicants, who began building their home in Cañada Real Galiana in March 2005, were thus served with an order to suspend construction, and warned of the consequences of non-compliance, and the administrative and judicial remedies available to them.

The applicants continued construction on their home, and they were served with a decision by the Municipality in May 2005, informing them that construction was being carried out without proper permits, and that such permits could not be granted, given the designation of Cañada Real Galiana as property of the public domain. Accordingly, in June 2005, a demolition order was issued, giving the applicants fifteen days to demolish their home, and informing the applicants of the available legal remedies. The applicants did not comply with this demolition order, and in November 2006, the relevant authorities ordered the enforcement of the demolition. This was ultimately postponed, as the authorities were only able to serve the applicants this decision when they arrived to demolish the home in January 2007, and the applicants did not give the authorities their consent to enter the home. In September 2007, judicial authorisation was granted to public authorities, allowing them to enter the applicants home to enforce the eviction and demolition against the applicants will. Although this decision was open to appeal before the Madrid High Court of Justice, the applicants did not contest the decision, and on 18 October 2007, the applicants were evicted and their home was demolished.

The applicants did not give the authorities their consent to enter the home

On 20 October 2007, the police noted that the applicants had begun rebuilding their home in the precise location of the previous building. In November 2007, the applicants were again warned of the illegality of their actions, and in April 2008 the relevant authorities again ordered the applicants to leave their home and demolish what parts of the house had been rebuilt. This decision was not subject to appeal, as the authorities state it was merely a continuation of the previous eviction proceedings. In the following months, there was some disagreement amongst the authorities as to who was occupying the home, but in November 2009, as well as February 2010, the applicants were informed of the order to vacate. In November 2010, the authorities sought new judicial authorisation to enter the home to enforce the eviction and demolition against the applicants will; however, the applicants submitted observations to the Court that the demolition had no legal basis. The Madrid Administrative Court ultimately granted permission to the authorities to enter the applicants home to enforce the eviction and demolition, but postponed the order till after the school year to limit the negative effects on the children. The applicants appealed this decision, and also requested review of the April 2008 decision, but these were both denied. In September 2011, the eviction and demolition were enforced, and the applicants were offered emergency housing and assistance, which they declined in favour of support from their family and social network.

The applicants lodged an appeal with the Spanish Constitutional Court, alleging violations of Article 8 of the Convention as well as Article 18 of the Spanish Constitution, which ensures the right to respect for the home. Additionally, the applicants stressed that their eviction was contrary to the purpose and spirit of the Cañada Real Galiana Act 2011, as their eviction had taken place outside the process of social dialogue. The Constitutional Court dismissed the applicant’s appeal.

The Cañada Real Galiana Act 2011

In order to properly understand the subsequent proceedings before the Court, a word must be said of the Cañada Real Galiana Act 2011, pursuant to which the property became of the private domain. Beyond privatisation of the land, the Cañada Real Galiana Act also sought to provide municipal authorities with a framework for regularisation of the residences of Cañada Real Galiana, giving due consideration to the parties affected. It provided for the transfer of land in Cañada Real Galiana from the Autonomous Region of Madrid to the relevant municipalities, as well as to third parties within a social-agreement framework. Such a framework was signed by municipalities of Madrid and Coslada in 2014, in which they agreed to address security and urban housing, with a view to ensuring the residents of Cañada Real Galiana were granted a right to housing in Cañada Real Galiana itself.

The arguments of the applicant versus the government of Spain

In the proceedings before the Court, the applicants argued that the interference with their right to a home, though in accordance with the law, had not pursued a legitimate aim or been necessary in a democratic society. In short, they believed that their eviction had been unjustified, considering the specific circumstances of Cañada Real Galiana and particularly in light of the Cañada Real Galiana Act. They believed there was no distinction between their home and the other residences of Cañada Real Galiana, and as such the demolition of their individual home served no purpose. Given this, they argued that their eviction had also been disproportionate, since it had been neither necessary nor urgent, and had deeply damaged their lives and the lives of their children. Additionally, they believed that there had been insufficient safeguards with regard to the domestic proceedings, and that they had not availed themselves of the available legal remedies due to the fact that the authorities had tolerated the settlements in Cañada Real Galiana for so many years.

The Government of Spain did not contest that the eviction had been an infringement of the applicant’s rights under Article 8 of the Convention, but maintained that the eviction had been in accordance with the law, in pursuit of a legitimate aim and necessary in a democratic society. They stated that since the applicants had constructed their home illegally, the government had the right to recover the property. Simultaneously, the government sought to address issues such as robbery and drug trafficking prevalent in the neighborhood. The government also argued that the eviction had been proportionate from these aims, for although the Cañada Real Galiana Act sought to regularise residences in the area, this was only meant to benefit long term residents, not residents such as the applicants, who had only begun construction in 2005. The applicants had been informed in 2005 of the illegality of their actions, and continued to be aware of this for the duration of their residency at Cañada Real Galiana. Lastly, the government argued that the applicants had not made use of the social and legal safeguards provided to them, in the form of social housing, and administrative and judicial appeal.

The Court’s decision: a lawful eviction

The Court firstly reestablished that the concept of “home” found within their case law, that being that “home” was not dependent on the legality of the dwelling, but rather on the specific circumstances of the case, wherein a continuous and sufficient link to the dwelling must be demonstrated by the applicants. As such, the dwelling in Cañada Real Galiana did qualify as the applicant’s home, and therefore derived protection from Article 8 of the Convention. The Court stated that the eviction and demolition of the applicants home was an interference with their rights under Article 8(1) of the Convention, and moved on to examine whether it was justified under Article 8(2) of the Convention.

As it was common ground between the parties, the Court accepted that the interference was in accordance with the law. The Court agreed with the Government that the repossession of the illegally occupied land was a legitimate aim of the authorities. The Court then examined whether the interference was necessary in a democratic society, initially by reiterating that it must give a margin of appreciation to the national courts, particularly with regard to social and economic policies, who are better equipped to assess the domestic situation. However, the Court must still autonomously assess if the interference pursued a pressing social need, and was proportionate to its stated aim. In considering the proportionality of the measure, the Court notes that the dwelling was in fact unlawful, and that the applicants had built and resided in the dwelling with full knowledge of its illegality. Additionally, although the authorities had tolerated the settlement at Cañada Real Galiana for many years, this was not true of the applicants dwelling, and since the eviction was directed at the applicants individually, it could not be construed as targeting the community as a whole, distinguishing it from, for example, the case of Yordanova and Others v. Bulgaria. The Court also noted that the applicants had at every stage of the domestic proceedings been informed of their rights to administrative and judicial review, wherein the domestic courts could have fully assessed the proportionality of their evictions as such, yet the applicants had not pursued any such review. The applicants had only contested the judicial authorisation granting public authorities permission to enter their home without their consent, and in this appeal the domestic court was limited to considering the legality of the authorisation, not the eviction itself. Consequently, although exhaustive and thorough review of the demolition did not take place at the domestic level, this was due to a lack of action on behalf of the applicants, and as such, could not be held against the state. This again distinguishes it from the Yordanova case. The Court also considered that sufficient safeguards had been provided by the authorities, particularly considering that the applicants had been offered emergency assistance which they refused, in favor of staying with their family and friends. Given the foregoing, the Court considered that the eviction order had been within the margin of appreciation granted to Member States, and that the subsequent actions of the domestic authorities had been proportionate to the legitimate aims pursued. As such, the Court found that there was no violation of the applicant’s rights to home and private life under Article 8 of the Convention.

Analyzing the Court’s approach to eviction

The decision of the Court in this instance follows the similar case of Kaminskas v. Lithuania, where the Court found that the demolition of the applicants illegally built home was proportionate to the aim of environmental protection sought by the government. It would appear that the Court is hesitant to legitimise individual dwellings occupied illegally. This contrasts their approach to protecting informal settlements established by specific, vulnerable communities as seen in Yordanova. Although the applicants did argue that their eviction was part of a broader trend, as 263 demolition orders were served to Cañada Real Galiana residents between 2005 and 2010, and in spite of the fact that 40% of Cañada Real Galiana’s population is of Roma ethnicity and 26% are Moroccan nationals, they did not go so far as to contend that the eviction notices disproportionately affected a specific community. As such, the Court had to consider their eviction as an individual, and not an eviction of a community. Another significant difference between the present case and the case of Yordanova, is that — unlike the Bulgarian authorities — the municipality of Madrid had taken steps to begin regularising many of the homes in Cañada Real Galiana, and the government of Spain did not contest the right of most Cañada Real Galiana residents to remain in their homes. The municipality had set certain temporal limits as to who could benefit from the regularisation process, thereby excluding the applicants. However, the preference given to long-term residents by the municipality echo’s sentiments expressed by the Court itself in deciding the Yordanova case: due to the length of residence, a relationship to the land and a general community had been established, which created a right to stay for the residents of the community. The fact that the applicants were not long-term residents precluded them from being a part of that community. The distinction between individual and community evictions, and the time bound definition of a community is logical given the challenges of regularising informal settlements, and the importance of protecting vulnerable communities from mass evictions. However, such a black and white perspective seems out of place with the human connection to home, and the severe consequences of eviction. Is it fair that an individual family’s eviction be minimized by comparing the consequences of their eviction with the consequences of several hundred or a thousand evictions? And is it right that a concept as fluid and sociological as a community is quantified as little more than years of residence? Undoubtedly, the answer to each of these questions is not self-evident.

Not a singular challenge

In cases such as this, there is an obvious tension between promoting the rule of law as it is written, and protecting human rights. While local law may stipulate that a specific settlement is illegal, as the Court has stated, this doesn’t completely negate the right of those residents to their home, nor does blanket illegality address the situation of necessity evident in many instances of illegal settlements. This predicament is not unique to the European Court of Human Rights however, it is present in planning law globally, and presents a challenge to scholars and courts alike.