COHRE Housing and ESC Rights Law Quarterly Vol6 No.2 2009 by The Centre on Housing Rights and Evictions (COHRE)

Housing and ESC Rights Law Centre on Housing Rights and Evictions

Vol. 6 - No. 2 June 2009

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 economic, social and cultural rights.

Judgment T-760/08 and the Restructuring of Colombia’s Health System1 by Alicia Ely Yamin, JD MPH 2 and Oscar Parra Vera, JD LLM 3 On 31 July 2008 the Constitutional Court of Colombia (the Court) issued a decision (T-760/08) whereby it ordered a dramatic restructuring of the country’s health system.4 The judgment came as the culmination of a

formidable wave of litigation to enforce the right to health, with tens of thousands of protection write (tutela) petitions relating to health claims before the Colombian courts each year.5 Since 1992, the Court has

staunchly upheld rights to access and treatment in the context of a highly neoliberal state, and has issued decisions with substantial resource implications. >>

This article draws heavily upon another article published by these authors: Yamin, AE and Parra–Vera, O. How do courts set health policy? The case of the

Colombian Constitutional Court. PLoS Medicine, 2009; 6(2): e1000032. Available at www.PLoSMedicine.org.

Joseph H. Flom Fellow on Global Health and Human Rights at Harvard Law School as well as an instructor at the Harvard School of Public Health. She is also the Executive Editor (Critical Concepts) of the peer-reviewed international journal, Health and Human Rights and Special Advisor to Amnesty International’s global campaign on economic, social and cultural Rights: Demand Dignity. Yamin drafted this article.

Staff Attorney, Inter-American Court of Human Rights. The views expressed herein do not necessarily reflect those of the Inter-American Court or its Registry. Parra provided comments and additions to the article.

Corte Constitucional de Colombia, Sala Segunda de Revisión, Sentencia T-760. July 31, 2008. Magistrado Ponente: Manuel José Cepeda

Garibello A (2008) Alcances del revolcón al sistema de salud explica magistrado Manuel José Cepeda. El Tiempo. 24 July 2008. Available: http://www. eltiempo.com/colombia/justicia/2008-08-24/alcances-del-revolcon-al-sistema-de-salud-explica-magistrado-manuel-jose-cepeda_4464146-1. �� Accessed 15 August 2008.

• Judgment T 760/08 and the • Summary Restructuring of Colombia’s Health System

• CASE NOTES World Bank Inspection Panel and threatened forced eviction in Ghana: Second Urban Environmental

• Residents of the Joe Slovo community • Vojnovic v. Croatia, Human Rights • CASES TO WATCH of the Western Cape v. Thubelisha Committee, UN Doc. CCPR/C/95/ Constitutional Court of South Homes and Others, Constitutional D/1510/2006 (28 April 2009) Africa: Mazibuko & Ors v. City of Court of South Africa, Case CCT 22/08 • Tãnase and Others v. Romania, Johannesburg & Ors: Phiri Right to (10 June 2009) European Court of Human Rights, Water Case 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 economic, social and cultural rights.

Summary This edition of the Quarterly opens with an article on a recent decision of the Constitutional Court of Colombia regarding the right to access to health care. The result of this decision will be a dramatic restructuring of the health care system in Colombia in order, in part, to bring it in line with international human rights standards guaranteeing equal access. Following are several Case Notes, including a World Bank Inspection Panel case dealing with the prevention of threatened forced eviction in the context of a World Bank funded project in Ghana, the recent Joe Slovo judgment from the Constitutional Court of South Africa dealing with evictions, a case before the Human Rights Committee finding housing rights violations under Article 17 of the International Covenant on Civil and Political Rights and a case from the European Court of Human Rights dealing with forced evictions that rise to violations of the prohibition on cruel, inhuman or degrading treatment or punishment. Finally, a case to watch summary of Lindiwe Mazibuko & Ors v. The City of Johannesburg & Ors, on appeal before the Constitutional Court of South Africa, is discussed. 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, and the Canadian International Development Agency (CIDA) for providing the funding necessary to make the Housing and ESC Rights Law Quarterly a regular publication and to ensure its widest possible distribution. For additional information on the justiciability of ESC rights, see www. cohre.org/litigation and the Case Law Database at www.escr-net.org. 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

Background In 1993, the Colombian healthcare system underwent a major reform, with the passage of Law 100. In keeping with neoliberal ideas for sectoral adjustment in the early 1990’s, Law 100 adopted a “managed competition model” which used public and private insurers as surrogates to purchase health care for insured patients, with the stated goal of improving efficiency. [11] It also established a two-tier system of benefits: (i) the contributory regime (Plan Obligatorio de Salud, or POS) for those formally employed or earning more than twice the minimum wage, and (ii) the subsidized regime (Plan Obligatorio de Salud Subsidiado, POSS), which includes approximately one-half of the benefits in the contributory regime.6 Although coverage has increased since 1993, the Colombian health system has been widely criticized; efficiency and quality gains have generally not materialized; and patients have increasingly turned to the courts to secure treatment and services.7 Between 1999 and 2005, Hsaio, WC (2007) Why is a systemic view of health financing necessary? Health Affairs 26:950-961; Plaza B, Barona AB, and Hearst N (2001) Managed competition for the poor or poorly managed competition? Lessons from the Colombian health reform experience. Health Policy and Planning 16 (2 Suppl): 44-51; Torres Tovar, M and Paredes N (2005) El caso Colombiano: “El mercado no es para todos y todas.” In Plataforma Interamericana de Derechos Humanos, Democracia y Desarrollo (PIDHDD) and ALAMES, eds, Derecho a la salud. Situación en países de América Latina Bogotá: PIDHDD/ALAMES.

Hsaio, WC (2007) Why is a systemic view of health financing necessary? Health Affairs 26:950-961; Plaza B, Barona AB, and Hearst N (2001) Managed competition for the poor or poorly managed competition? Lessons from the Colombian health reform experience. Health Policy and Planning 16 (2 Suppl): 44-51; Torres Tovar, M and Paredes N (2005) El caso Colombiano: “El mercado no es para todos y todas.” In Plataforma Interamericana de Derechos Humanos, Democracia y Desarrollo (PIDHDD) and ALAMES, eds, Derecho a la salud. Situación en países de América Latina Bogotá: PIDHDD/ALAMES; Defensoría del Pueblo (National Human Rights Ombuds Office of Colombia) (2007) La tutela y el derecho a la salud. Período 20032005. Bogotá: Defensoria del Pueblo: 29, 77-79; De Vos, P, De Ceukelaire, W, and Van der Stuyf, P (2006), Colombia and Cuba, contrasting models in Latin America’s health sector reform, Trop. Med. & Intl Health 11:1604–1612; De Groote, T, De Paepe,

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the Human Rights Ombuds Office calculates that 328,191 tutelas were presented relating to the right to health. In approximately 80 per cent of those cases the tutela was granted.8 Unlike the common law system, the vast majority of these cases resolve only the dispute in the individual case before the court. Nevertheless, the sharply increasing numbers of tutelas – approximately 90,000 per year by 2008 – is alarming.9

In cases where the Court orders provision of care not included in the POS, a government Solidarity and Guarantee Fund (Fondo de Solidaridad y Garantía, FOSYGA) is required to reimburse the provider for expenses incurred, which has resulted in a substantial fraction of FOSYGA’s budget being dedicated to the implementation of tutelas.10

The Constitutional Court, which reviews tutela judgments from courts throughout the country, has in the past enforced the right to health: (1) when there is an inextricable relationship with “fundamental rights,” including the right to life, such that if it were not protected immediately it would result in the violation of these latter rights; (2) when the case involves a person or group of people in especially vulnerable circumstances, such as children, pregnant women, or the elderly; and (3) when the health good or service at issue is included in the POS /POSS, which the Court had taken to define a minimum core content of the right to health.

The overwhelming preponderance of cases in which courts have enforced the right to health in the country as a whole relate to health goods and services that the state had already agreed to provide. A study by the National Human Rights Ombuds Office found, for instance, that between 1999 and 2005 approximately 89 per cent of the surgeries, 93 per cent of the treatments, and 84 per cent of the procedures that were petitioned for using tutelas were already included in the POS or POSS. These findings suggest a health system with little capacity for internal regulation, where judicial recourse has become, according to a 2008 report from Dejusticia and the Attorney General’s Office, an “escape valve.”11

P, and Unger, JP (2005), Colombia: In Vivo test of health sector privatization in the developing world, Intl J. Health Services 35: 125–141; Homedes, N and Ugalde, A (2005),Why neoliberal health reforms have failed in Latin America. Health Policy 71:83–96; Eslava-Schmalbach1, J, Barón, G., Gaitán-Duarte1, H., et al (2008),Evaluación del Impacto en Costo-equidad del Sistema de Salud en Colombia 1998-2005, Rev. Salud Pública. 10 (1): 3-17.

Other data suggests that those in the contributory regime are far more likely to bring health claims through tutelas, than those in the subsidized regime, suggesting that the tutelas may be exacerbating rather than alleviating structural inequities in the system.12 Further

Defensoría del Pueblo (National Human Rights Ombuds Office of Colombia) (2007) La tutela y el derecho a la salud. Período 2003-2005. Bogotá: Defensoria del Pueblo: 29, 77-79.

Garibello �� A (2008) Alcances del revolcón al sistema de salud explica magistrado Manuel José Cepeda. El Tiempo. 24 July 2008. Available: http:// www.eltiempo.com/colombia/justicia/2008 08 -24/alcances- del-revolcon-al-sistema- de salud-explica-magistrado-manuel-jose-cepeda_ 4464146-1. Accessed 15 August 2008; Defensoría del Pueblo (National Human Rights Ombuds Office of Colombia) (2007) La tutela y el derecho a la salud. Período 2003-2005. Bogotá: Defensoria del Pueblo: 29, 77-79; Procuraduria General de la Nación and Centro de Estudios de Derecho, Justicia y Sociedad Dejusticia (2008) El Derecho a la Salud en Perspectiva de Derechos Humanos y el Sistema de Inspección, Vigilancia y Control del Estado Colombiano en Materia de Quejas en Salud. Bogotá: Procuraduria General de la Nación and Centro de Estudios de Derecho, Justicia y Sociedad.

Sotelo LC (2000) Los derechos constitucionales de prestación y sus implicaciones económico-políticas. Los casos del derecho a la salud y de los derechos de los reclusos. Bogotá: departamento Nacioal de Planeación/Archivos de Macroeconomía, No. 133: 39-53.

Defensoría del Pueblo (National Human Rights Ombuds Office of Colombia) (2007) La tutela y el derecho a la salud. Período 2003-2005. Bogotá: Defensoria del Pueblo: 29, 77-79; Procuraduria General de la Nación and Centro de Estudios de Derecho, Justicia y Sociedad Dejusticia (2008) El Derecho a la Salud en Perspectiva de Derechos Humanos y el Sistema de Inspección, Vigilancia y Control del Estado Colombiano en Materia de Quejas en Salud. Bogotá: Procuraduria General de la Nación and Centro de Estudios de Derecho, Justicia y Sociedad.

Procuraduria General de la Nación and Centro de Estudios de Derecho, Justicia y Sociedad Dejusticia (2008) El Derecho a la Salud en Perspectiva de

allegations suggest that there are perverse dynamics operating among pharmaceutical industries, physicians and judges ordering tutelas, which allow the health insurer to be reimbursed by the FOSYGA for non-POS drugs at very high rates.13

The Decision T-760/ 08 collects 22 tutelas (20 brought by individuals and 2 brought by insurance companies), which were selected by the Court in order to illustrate systemic problems in the health system which have led to the overuse of the tutela procedure. The judgment resolves not only the 22 cases before the court, but also calls for the transformation of the entire system. The Court asserted that this structural approach was necessary because “the organs of government responsible for … the regulation of the health system have not adopted decisions that guarantee the right to health without having to seek recourse through the tutela.”14 Indeed, twenty of the twenty-two cases relate to principles that the Court has repeatedly established, but which healthcare providers and insurance companies continue to fail to incorporate in their policies due to failures of oversight and regulation. Further, two cases were taken from insurance companies regarding reimbursement for services not included in the POS, and adjustments in the regulations regarding reimbursements. The Court clarifies and goes beyond its ample jurisprudence regarding the enforceability of the right to health, asserting that the right to Derechos Humanos y el Sistema de Inspección, Vigilancia y Control del Estado Colombiano en Materia de Quejas en Salud. Bogotá: Procuraduria General de la Nación and Centro de Estudios de Derecho, Justicia y Sociedad. 13

See Observatorio del Medicamento. http://www. observamed.org/. Accessed 24 march 2009.

�� Corte Constitucional de Colombia, Sala Segunda de Revisión, Sentencia T-760. July 31, 2008. Magistrado Ponente: Manuel José Cepeda.

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health itself is a fundamental right which can be directly protected under the Constitution without need of establishing a relationship to the right to a life with dignity (la vida digna). In keeping with the United Nations Economic, Social and Cultural Rights Committee’s interpretation of the right to health, the Court: (i) elaborates on the multiple dimensions of state obligations which flow from the right to health, and how oversight is essential to protecting the right to health as well as to accountability; (ii) reiterates that the state is responsible for adopting deliberate measures to achieve progressive realization of the right and that retrogression (backsliding) is generally impermissible; and (iii) asserts that the right to health calls for transparency and access to information, as well as for evidencebased planning and coverage decisions based on participatory processes.15 Further, the Court distinguishes between a minimum core content of services to be provided to everyone and elements subject to progressive realization. This minimum core content of care is to be defined in relation to an updated and unified benefit plan. �� Corte Constitucional de Colombia, Sala Segunda de Revisión, Sentencia T-760. July 31, 2008. Magistrado Ponente: Manuel José Cepeda; �� United Nations Committee on Economic, Social and Cultural Rights. General Comment 14 on the Right to Health, UN DOC. E/C.12/2000/4.

Citing the government’s failure to take any steps toward a unification of plans since the adoption of Law 100, the Court orders the appropriate executive agencies to unify the benefit plans (POS and POSS), initially for children and later for adults, in the latter case progressively and taking into account financial sustainability, as well as the epidemiological profile of the population. The process of devising a unification plan is to be participatory, transparent, and evidence-based, and must include relevant indicators and benchmarks. Further, the plan is to be updated on an annual basis with input from both the medical community and health system users.16 The judgment calls upon the government to adopt deliberate measures to progressively realize universal coverage by 2010, and sets various compliance deadlines in 2008 and 2009.17 If such deadlines are not met, automatic orders go into effect. For example, if the benefit plans for children are not unified as of October 1, 2009, the benefits in the POSS are automatically increased to equal those in the more generous POS. As of late March, 2009, the government had formally complied with different deadlines, although 11

Corte �� Constitucional de Colombia, Sala Segunda de Revisión, Sentencia T-760. July 31, 2008. Magistrado Ponente: Manuel José Cepeda.

Corte Constitucional de Colombia, Sala Segunda de Revisión, Sentencia T-760. July 31, 2008. Magistrado Ponente: Manuel José Cepeda.

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there did not seem to be any participatory process in place.

Conclusions To a greater extent than in any other country, the Colombian Constitutional Court has exercised dramatic control over health policies and programming decisions. The structural approach adopted by the Court in T-760/08 clearly shows an effort to correct some of the pitfalls associated with making ad hoc determinations based on individual cases. As it did in a similar structural order related to internally displaced persons (T-025/04), the Court could very well adopt creative mechanisms for the supervision of this judgment including public hearings with multiple stakeholders from government as well as civil society. However, in 2009 the Court’s composition changed substantially, including the departure of the Judge who wrote the decision, and it is unclear whether the new Court will assume the same degree of responsibility for overseeing the implementation of the judgment’s complex structural orders.

CASE NOTES World Bank Inspection Panel and threatened forced eviction in Ghana: Second Urban Environmental Sanitation Project (UESP II) – Investigation Report (June 2009) This case was brought to prevent the forced eviction of the Agyemankata Community to make way for a World Bank funded landfill project in greater Accra, Ghana. The Centre on Housing Rights and Evictions (COHRE) filed a Request for Inspection with the World Bank Inspection Panel in August 2007, claiming that the project violated or risked violating several of the Bank’s Operational Policies and Bank Procedures, including those dealing with involuntary resettlement (OP 4.12 and BP 4.12). In October 2007, the Panel issued to Eligibility Report (similar to an admissibility decision) in which it not only found the COHRE request to be eligible for review, but essentially issued an injunction against any eviction pending the Panel’s examination of the situation. In early 2009, the Panel issued its final report and its findings were accepted by Bank Management. In June, the Board of Executive Directors ratified the Bank Management’s proposed Plan of Action to rectify the finding of the Panel. These findings included (1) The World Bank needs to undertake an in-depth and substantiated analysis of alternatives, including a systematic analysis of feasible alternatives to the proposed project site; (2) The Bank did not

adequately examine alternative sites for the landfill and failed to assess adequately the implications of the influx of people and the changed conditions on the ground since an earlier assessment in the 1990s. Consequently the Bank did not comply with its OP/BR 4.01; (3) Meaningful consultations did not take place with those living nearest the proposed landfill and the project failed to provide relevant information to the community; (4) The landfill project had significant foreseeable environmental, social and safeguard problems and Bank Management did not take all the required measures to address these issues; (5) The original Environmental and Social Assessment did not adequately identify the full extent of the area of influence of the proposed landfill, including potential impacts on nearby people and residents; (6) The planned buffer zone around the landfill is inadequate (this is a key finding as the buffer zone divided the community - with some to be displaced and some remaining. The community may be open to resettlement as long as the entire community is resettled); and (7) Bank supervision of the project has been sorely lacking and in violation of OP/BP 13.05.

Importantly, the Panel recommended, and the Bank Management agreed, that an entirely new Environmental and Social Assessment needs to be undertaken with meaningful consultations with the affected community. This assessment is to include an analysis of alternative sites - so eviction may be prevented altogether. Consultation must be with persons to be displaced and host communities receiving them and include timely and relevant information; consultations of resettlement options; opportunities to participate in planning, implementing, and monitoring resettlement; establishing of appropriate and accessible grievance mechanisms; and negotiated compensation (for all types of land tenure) achieved through fully informed and participatory consultation and iterative and ongoing, rather than one-off, engagement. This conclusion will delay any potential eviction or even prevent it altogether. If an eviction does occur, it will be done through meaningful consultation throughout the process of planning, implementation, relocation and resettlement.

Case Note by Bret Thiele

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Residents of the Joe Slovo community of the Western Cape v. Thubelisha Homes and Others, Constitutional Court of South Africa, Case CCT 22/08 (10 June 2009) Five separate opinions were filed by the Justices of the Constitutional Court, all of which supported the order set out at the end of the judgment. The case involved the eviction of residents of the Joe Slovo informal settlement to make way for the N2 Gateway Housing Project – a project aimed at providing affordable housing. The residents argued that they were not “unlawful occupiers” of the site within the meaning of the Unlawful Occupation of Land Act of 1998 (PIE Act) and hence could not be the subject of an eviction order under that act. They also took issue with the relocation site as it was far from their present social and economic connections and the alternative housing was not deemed adequate. The judgment noted that the lawfulness of the occupation of public lands by landless persons such as the residents of Joe Slovo must be determined from the perspective of South Africa’s constitutional and statutory background, with its fundamental value of human dignity, and not according to the precepts of private law. government’s constitutional duty towards landless people requires it to allow the residents of

Joe Slovo to remain on public land until it can develop and implement a policy that addresses their plight as well as the plight of all living in desperate situations. While the Court ultimately allowed for the eviction, it did so under strict requirements. For instance, the judgment recognised that courts must remain vigilant to ensure that when governments seek to evict a community, such as Joe Slovo, in pursuit of laudable housing plans, the plans must include the guarantee that those who are evicted and relocated have a reasonable opportunity of accessing adequate housing within a reasonable time in relation to the housing project concerned. To this end the court ordered that 70 per cent of the low-cost housing to be built on the Joe Slovo site should be allocated to the community. Furthermore, the Court noted the importance of meaningful engagement between the government and persons to be evicted. The requirement for engagement it said flows from the need to treat residents with respect and care for their dignity. Where the government seeks to relocate people living in deplorable conditions in line with a programme to provide them decent housing, there is a

Case Note by Sonkita Conteh and Bret Thiele

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duty to engage meaningfully with residents both individually and collectively. Finally, the Court noted that an eviction order that does not make provision for adequate alternative accommodation but simply orders an eviction is less likely to be just and equitable than one which makes careful provision for alternative accommodation. The alternative accommodation must be equipped with basic services, including tarred roads, electricity, fresh water and reasonable provision for toilet facilities. In addition, the government must, as far as possible, have regard to the proximity of schools, employment opportunities and other public amenities to the alternative accommodation. The court outlined in some detail, the quality of the alternative accommodation to be provided to the community by the authorities. A full article on the Joe Slovo judgment will be forthcoming in the next edition of the Housing and ESC Rights Law Quarterly.

Vojnovic v. Croatia, Human Rights Committee, UN Doc. CCPR/C/95/D/1510/2006 (28 April 2009) Petitioners are Croatian citizens of Serbian descent and were residents of a state-owned apartment in Zagreb from 1986 to 1992. Under domestic legislation, they held tenancy rights which in most aspects amounted to ownership, except that the State could terminate that right in certain circumstances, including unjustified absence from the apartment for a period exceeding six months, pursuant to Art. 99 of the Housing Relations Act. In 1992, the family was forced to leave the apartment in Zagreb because they had received death threats from unknown people and feared for their lives as Croatian Serbs. When they attempted to repossess their apartment, they were informed that it was occupied and that they had lost the tenancy rights due to prolonged and

unjustified absence. Challenges in domestic courts were unsuccessful and the petitioners were not allowed to provide evidence of systemic violence against Croatians of Serbian descent during the early 1990s in the context of the breakup of Yugoslavia. In addition to finding a violation of Article 14 (right to a fair trial) on account of the unfair judicial proceedings at the domestic level, the Committee found a violation of Article 17 on account of arbitrary interference with the home. In doing so, the Committee recalled its General Comment No. 16 to the effect that the concept of arbitrariness in Article 17 of the Covenant is intended to guarantee that even interference provided for by law should be in accordance

with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. While the Committee noted that the termination of the petitioners’ specially protected tenancy was in accordance with Croatian law (Art. 99 of the Housing Relations Act), it did conclude that the deprivation of the author’s tenancy rights was arbitrary and amounts to a violation of Article 17 in conjunction with Article 2, paragraph 1, of the Covenant. The Committee ordered an effective remedy and required the State Party, within 180 days, to inform it about the measures taken to give effect to the Committee’s ruling.

Case Note by Bret Thiele

TÃnase and Others v. Romania, European Court of Human Rights, The applicants are Romanian citizens of Roma origin who had lived in the village of Bolintin Deal, Giurgiu County. Following the killing, on the night of 6/7 April 1991, of a nonRoma from Bolintin-Deal by a Roma villager, a crowd of more than two thousand non‑Roma inhabitants from the same village and from the neighbouring village, together with the priest and the mayor, burned and otherwise destroyed the applicants’ houses and their contents. As a consequence, the entire Roma community fled their homes and were left homeless for a month. When, on 7 May 1991 the displaced Roma villagers tried to negotiate their return, the non‑Roma community gathered together again and burned four

more houses belonging to Roma. The attacks against the applicants continued on the following days and the Roma inhabitants were denied access to the village, the orthodox church and the cemetery. In April 1991, the applicants filed a criminal complaint with the Giurgiu County Prosecutor’s Office. An investigation was started and the applicants joined the proceedings as civil parties, seeking compensation for their destroyed houses and personal belongings. On 17 October 1996 the criminal trial commenced, in conjunction with a civil action for damages. The Bucharest District Court gave its judgment on 18 May 1998. It convicted thirteen individuals of unlawful entry into

a person’s home and destruction of property and gave them each a three to six months suspended prison sentence. The District Court awarded the applicants compensation for their houses. In doing so, it based its ruling on an expert report of 1994 and rejected the applicants’ request to take the inflation rate into account. It then halved the amount of the compensation, on the ground of the mitigating circumstances of provocation. The District Court did not afford any redress for the movable property, as it considered that its existence, and subsequent destruction during the incidents, had not been proven. >> >> The respondent State ultimately accepted responsibility

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for not only violations of Article 8 (respect for the home) and Article 1 of Protocol 1 (peaceful enjoyment of possessions), but due to the egregious nature of the case, also Article 3 (prohibition on cruel, inhuman or degrading treatment or punishment). Tănase and Others v. Romania thus became yet another

conclusion by an international mechanism that forced eviction can rise to a violation of the prohibition on cruel, inhuman or degrading treatment or punishment.

Case Note by Bret Thiele with excerpts from the merits decision of the case

CASES TO WATCH Constitutional Court of South Africa: Mazibuko & Ors v. City of Johannesburg & Ors: Phiri Right to Water Case In the landmark case of Lindiwe Maxibuko & Ors v. The City of Johannesburg & Ors, the High Court of South Africa ruled that the City of Johannesburg’s prepayment water metres scheme in Phiri, a township in Soweto, was unconstitutional. This judgment also reaffirmed the principle of progressive realisation and increased the minimal amount of safe drinking water that the City is obligated to provide to 50 litres per person per day. On appeal to the Supreme Court of Appeal (SCA), however, the lower court judgment was rescinded. The SCA did, however, rely on international human rights law in reaffirming that the amount of drinking water for domestic use was the amount necessary to live a life with dignity. The SCA used factual information provided by the City to determine that that minimum amount was 42 litres per person per day, however. The SCA failed to take fully into account the principle of progressive realization and failed to consider that the situation in Phiri was the result of apartheid and thus is required to be remedied under South Africa’s obligations as a State Party to the International Convention on the Elimination of All Forms of Racial Discrimination. In July 2009, the Constitutional Court of South Africa will hear oral arguments in the cross appeal of this groundbreaking case. One of the more specific issues to be addressed is whether or not the factual basis for the determination of the minimum amount of water was properly applied. Other issues will include the obligations of progressive realisation and how the obligation to eradicate the effects of apartheid should inform the ultimate remedy in the case. The Court is expected to issue its ruling later in 2009. For more information, including the judgment, see: http://www.cohre.org/ watersa Case to watch by Bret �� Thiele

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The Editorial Board of the Housing an ESC Rights Law Quarterly is: • Salih Booker, Executive Director, Centre on Housing Rights and Evictions (COHRE), Switzerland; • Lilian Chenwi, Coordinator and Senior Researcher, Community Law Centre, South Africa; • Colin Gonsalves, Executive Director, Human Rights Law Network, India; • Aoife Nolan, Assistant Director, Human Rights Centre, Queen’s University, Belfast, Northern Ireland. • Bruce Porter, Executive Director, Social Rights Advocacy Centre, Canada; • Julieta Rossi, Director, ESCRNet, USA; • Bret Thiele, Coordinator, COHRE ESC Rights Litigation Programme, Switzerland. Coordinating Editor: • Bret Thiele, Coordinator, COHRE ESC Rights Litigation Programme, Switzerland. CONTACT If you have any comments, require additional copies, wish to contribute to 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