EQUAL OPPORTUNITIES INITIATIVE # 3 313 str., 1373 SOFIA, BULGARIA Tel: + 359 2 8 22 11 44 Fax: + 359 2 8 22 11 44 E-mail: equal_opportunities@abv.bg
83 R UE DE M ONTBRILLANT 1202 G ENEVA , S WITZERLAND Tel: + 41.22.7341 028 Fax: + 41.227338 336 E-mail: litigation@cohre.org
SUPPLEMENTARY INFORMATION ON THE ISSUE OF INTERIM MEASURES AND ADMISSIBILITY to the INDIVIDUAL COMPLAINT TO THE HUMAN RIGHTS COMMITTEE UNDER THE OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS and SECOND REQUEST FOR URGENT INTERIM MEASURES 1 October 2009
Table of Contents: I. NO RELEVANT EFFECTIVE DOMESTIC REMEDIES EXIST TO PREVENT FORCED EVICTION AND OTHERWISE PROTECT THE INTERNATIONAL HUMAN RIGHTS AT ISSUE IN THIS COMPLAINT .............................................................................................................2 II. ASSUMING, FOR THE SAKE OF ARGUMENT, THAT RELEVANT EFFECTIVE REMEDIES ARE UN-EXHAUSTED, THE HUMAN RIGHTS COMMITTEE CAN AND SHOULD STILL ISSUE INTERIM MEASURES PRIOR TO ITS CONSIDERATION OF THE ISSUE OF ADMISSIBILITY .....4 III. SECOND URGENT REQUEST FOR INTERIM MEASURES .........................................5 ANNEX 1: DOMESTIC DECISIONS DEMONSTRATING A PATTERN OF LACK OF AVAILABLE EFFECTIVE DOMESTIC REMEDIES TO ENFORCE THE INTERNATIONAL HUMAN RIGHTS AT ISSUE IN THE PRESENT COMPLAINT .................................................7
I.
NO RELEVANT EFFECTIVE DOMESTIC REMEDIES EXIST TO PREVENT FORCED EVICTION AND OTHERWISE PROTECT THE INTERNATIONAL HUMAN RIGHTS AT ISSUE IN THIS COMPLAINT 1.
The underlying rationale of the exhaustion rule is to provide the State an
opportunity to redress a violation by means of its domestic legal system before a claim is brought to an international body.1 It is premised on the assumption that there is an effective remedy in the domestic system available for the alleged violation.2 Moreover, human rights jurisprudence on the right to a remedy uniformly stipulates that domestic remedies must be effective as means of redress for violations of protected rights.3 The availability in the domestic legal system of effective remedies for violations of the rights protected by the Covenant is a threshold condition for the application of the exhaustion rule under the Optional Protocol. In the absence of effective domestic remedies, the exhaustion requirement should not apply. 2.
Long-established jurisprudence makes clear that in order to fall within the scope
of the exhaustion rule, a domestic remedy must satisfy three criteria: it must be available in practice, adequate (or “sufficient”) to provide relief for the harm suffered, and effective in the particular circumstances of the case.4 The availability, adequacy and effectiveness of a remedy must be sufficiently certain not merely in theory but in practice. See, e.g., Human Rights Committee, Celal, v. Greece, Communication No. 1235/2003, 2004, paragraph 6.3; Committee on the Elimination of Discrimination Against Women, Fatma Yildirim (deceased) v. Austria, Communication No. 6/2005 (2007) para. 7.2; African Commission on Human and Peoples’ Rights, Rencontre Africaine pour la Defence des Droits de l'Homme v. Zambia, Communication No. 71/92, 10th Annual Activity Report (1996), para. 10; African Commission on Human and Peoples’ Rights, Free Legal Assistance Group and Others v. Zaire, Communication No. 25/89, 47/90, 56/91, 100/9, 9th Annual Activity Report 1995-96, para. 36; Inter-American Court of Human Rights, Velasquez Rodriguez, Merits, para. 61; European Court of Human Rights, Akdivar and Others v. Turkey, Judgment of 16 September 1996, Reports, 1996-IV, para. 65. 2 See European Court of Human Rights, Akdivar and Others v. Turkey, supra, para. 65: “[t]he rule is based on the assumption, reflected in Article 13 of the Convention (art. 13) - with which it has close affinity -, that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights.” Citation omitted. See also Inter-American Court of Human Rights, Velásquez Rodríguez Case, Preliminary Objections, supra, para. 91: “[t]he rule of prior exhaustion of domestic remedies under the international law of human rights has certain implications that are present in the Convention. Under the Convention, States Parties have an obligation to provide effective judicial remedies to victims of human rights violations (Art. 25), remedies that must be substantiated in accordance with the rules of due process of law (Art. 8 (1)), all in keeping with the general obligation of such States to guarantee the free and full exercise of the rights recognized by the Convention to all persons subject to their jurisdiction (Art. 1).” 3 See generally Dinah Shelton, Remedies in International Human Rights Law (2d ed. 2006). 4 See, e.g., African Commission on Human and Peoples’ Rights, Jawara v. The Gambia, Communication 1
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3.
However, in the situation at issue in this Complaint, the forced eviction of
Romani communities in Bourgas have commenced without any intervention by domestic legal mechanisms although these and similarly situation communities have sought legal remedy at the domestic level to no avail.
Bulgaria has denied the long-standing
communities of Meden Rudnik and Gorno Ezerovo, situated in Bourgas, Bulgaria, any security of tenure, including the minimum “degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats” required by its international and domestic human rights obligations.5 There are no available effective mechanisms at the domestic level to challenge eviction in such cases where there exists a denial of even the minimum degree of security of tenure. Notwithstanding this situation, several households have attempted to bring cases before the Bourgas Administrative Court, but the eviction orders have been upheld due, inter alia, to the lack of the degree of security of tenure required by international human rights norms (see Annex 1). 4.
Notwithstanding, EOA has assisted the communities to challenge the eviction
orders by bringing a case before the Administrative Court. The arguments were based solely on international law, as Bulgarian law does not provide for any remedy. The Administrative Court upheld the eviction and demolition orders.
Cases were also
brought before the Supreme Administrative Court, which also upheld the eviction and demolition orders. 5.
Additionally, other Romani communities have brought cases before the
Administrative and Supreme Administrative Courts in attempts to enforce the prohibition on forced eviction.
These cases have not proven to provide effective
domestic remedies. To be effective, a remedy must be “capable of producing the result
Nos. 147/95, 149/96, 13th Annual Activity Report (1999-2000), para 31; Report of the Human Rights Committee, UN Doc. A/63/40 (vol. I), para. 117. See generally Chittharanjan Félix Amerasinghe, Local Remedies in International Law (2nd ed. 2004) pp. 312-341. 5 Committee on Economic, Social and Cultural Rights, General Comment No. 4, UN Doc. 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) at para. 8(a), (stating in relevant part that “Tenure takes a variety of forms, including rental (public and private) accommodation, cooperative housing, lease, owner-occupation, emergency housing and informal settlements, including occupation of land or property. Notwithstanding the type of tenure, all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats. States parties should consequently take immediate measures aimed at conferring legal security of tenure upon those persons and households currently lacking such protection, in genuine consultation with affected persons and groups.”)
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for which it was designed”6 and it must offer a reasonable prospect of success or a reasonable possibility that it will prove effective.7 The cases provided to the Human Rights Committee (see Annex 1) demonstrate a pattern of domestic courts unwilling or unable to protect effectively the international human rights at issue in this case. Consequently, the Committee should find that relevant effective domestic remedies are unavailable in Bulgaria or whatever domestic remedies, whether effective or not, have been exhausted. 6.
Indeed, the individuals, families and communities at issue have not received any
protection from governmental institutions, including judicial authorities.
On the
contrary, the police actively participated in the demolition of the houses and used disproportionate force against the Roma inhabitants.
II.
ASSUMING, FOR THE SAKE OF ARGUMENT, THAT RELEVANT EFFECTIVE REMEDIES ARE UN-EXHAUSTED, THE HUMAN RIGHTS COMMITTEE CAN AND SHOULD STILL ISSUE INTERIM MEASURES PRIOR TO ITS CONSIDERATION OF THE ISSUE OF ADMISSIBILITY 7.
The primary importance of the ability to implement interim measures in cases of
alleged human rights violations is to terminate ongoing abuse, avoid the possibility of irreparable harm which cannot be compensated for in a final judgment, ensure the integrity of the case and preserve the subject matter of the dispute before the Committee.8 A decision on admissibility or exhaustion of domestic remedies does not Inter-American Court of Human Rights, Velasquez Rodriguez, supra, para. 66. See European Court of Human Rights, Akdivar v. Turkey, supra, para. 68; European Court of Human Rights, Selmouni v. France, supra, para. 76; Inter-American Commission on Human Rights, Isamu Carlos Shibayama et al. v. United States, Report No. 26/06, Petition No. 434-03, para. 48, Annual Report of the Commission 2006; Inter-American Commission on Human Rights, Victor Nicholas Sanchez et al. v. United States, Report No. 104/05, Petition 65/99, para. 67, Annual Report of the Commission 2005. Cf. African Commission on Human and Peoples’ Rights, Jawara v. The Gambia, Communications 147/95 & 149/96, 13th Annual Activity Report (1999-2000), paras. 32, 35, 38; African Commission on Human and Peoples’ Rights, Amnesty International and Others v. Sudan, Communications 48/90, 50/91, 52/91 & 89/93, 13th Annual Activity Report (1999-2000), para. 37; Human Rights Committee, Communication No. 1095/2002, Gomaritz v. Spain, 26 August 2005, para. 6.4; Human Rights Committee, Maximino de Dios Prieto v. Spain, Communication No. 1293/2004, 25 July 2006, para. 6.3. 8 See, e.g., Nuclear Tests (Austl. v. Fr.) 1973 I.C.J. 99, 103 (1973); Peace Community of San José de Apartadó (Colombia), Provisional Measures, Order of June 18, 2002, Inter-Am. Ct. H.R. (ser. E), P 4 (2002); La Nacíon Newspaper (Costa Rica), Provisional Measures, Order of Dec. 6, 2001, Inter-Am. Ct. H.R. (ser. E), P 4 (2001); Communication 133/94, Association pour la Defence des Droits de l’homme et des Libertes v. Djibouti, 13th Annual Activity Report of the African Commission on Human and Peoples’ Rights 19996 7
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need to be made prior to issuing an interim measure.9 The Committee need only make a prima facie determination of jurisdiction based on the provisions invoked by the Applicant.10 Indeed, the ability of applying interim measures prior to a decision on admissibility is consistent with international norms as evident by the explicit language of the Rules of Procedure of the Committee on the Elimination of All Forms of Discrimination against Women and the draft Rules of Procedure of the Committee on Economic, Social and Cultural Rights which are based on the existing international jurisprudence.11 8.
In the event that the Committee finds that there are relevant effective domestic
remedies that are yet to be exhausted, the Committee should still issue Interim Measures that effectively provide injunctive relief pending conclusion of those domestic remedies. 9.
If domestic remedies are unsuccessful in protecting the international human
rights at issue in this Complaint, the Interim Measures should remain in effect until the Committee can consider and rule on the merits of this Complaint.
III. SECOND URGENT REQUEST FOR INTERIM MEASURES 10.
The human rights violations at issue in the present Complaint are ongoing and
are resulting in irreparable harm to the Roma individuals involved. Since the Complaint was submitted to the Human Rights Committee on 21 September 2009, 19 more families, this time from the Meden Rudnik community, where forcibly evicted, had their homes demolished, and were rendered homeless on or about 25 September 2009. 11.
Some of the authors from the Gorno Ezerovo community and the Meden
Rudnik community still face imminent forced eviction and destruction of their homes. These threatened forced evictions may be implemented in the first weeks of October 2009.
2000, AHG/222 (XXXVI) Annex V. p. 90, para 5. See also, Jerome B. Elkind, Interim Protection, a Functional Approach 26-28 (1981). 9 See, Statement by Martin Scheinen, former member of the Human Rights Committee, UN Doc. CAT/C/SR.487, para 4. 10 Belgium v. Senegal, ICJ, Order on Request for the Indication of Provisional Measures, 28 May 2009. 11 Both stating that: “Where the Committee exercises its discretion [to issue Interim Measures], this does not imply a determination on admissibility or on the merits of the communication.�
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12.
Forced eviction and destruction of homes have and will result in irreparable harm
to the relevant authors of this Complaint as well as similarly situated persons in the Gorno Ezerovo and Meden Rudnik communities. Such irreparable harm includes, inter alia, the loss of housing and other personal belongings, the dangers associated with lack of shelter due to resulting homelessness, and the loss of social networks. 13.
Those already forcibly evicted have been rendered homeless and are in urgent
needs of alternative housing. 14.
Consequently, COHRE and EOA again urgently request interim measures
including an immediate halt to any further evictions and the provision of alterative housing to those already evicted.
Respectively submitted,
Bret G. Thiele Senior Expert for Litigation and Legal Advocacy Centre on Housing Rights and Evictions (COHRE) Daniela Mihailova Legal Program Coordinator Equal Opportunities Association (EOA)
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ANNEX 1: DOMESTIC DECISIONS DEMONSTRATING A PATTERN OF LACK OF AVAILABLE EFFECTIVE DOMESTIC REMEDIES TO ENFORCE THE INTERNATIONAL HUMAN RIGHTS AT ISSUE IN THE PRESENT COMPLAINT Decision 1
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Decision 2
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Decision 3
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13
14
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Decision 4
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17
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19
20
Decision 5
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22
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Decision 6
25
26
27
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35
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