COHRE Individual Complaint Response Bulgaria 2010

EQUAL OPPORTUNITIES ASSOCIATION # 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

RESPONSE BY THE CENTRE ON HOUSING RIGHTS AND EVICTIONS (COHRE) AND EQUAL OPPORTUNITIES INITIATIVE (EOA) TO THE OBSERVATIONS BY THE GOVERNMENT OF THE REPUBLIC OF BULGARIA REGARDING COMMUNICATION MR. STOYKO ILIEV DRAGANOV ET AL. V. REPUBLIC OF BULGARIA COMMUNICATION NO. 1926/2010 HUMAN RIGHTS COMMITEE 30 June 2010

Table of Contents: I. II. III. IV.

RESPONSE ON ADMISSIBILITY .........................................................................................2 RESPONSE ON MERITS..................................................................................................4 URGENT REQUEST FOR INTERIM MEASURES .....................................................................6 CONCLUSIONS ............................................................................................................7

I.

RESPONSE ON ADMISSIBILITY

1.

The Communication is admissible as the international procedures mentioned

by the Republic of Bulgaria, namely the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living; the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance; and the Independent Expert on Minority Issues are not within the scope of the meaning of “procedures of international investigation or settlement” referred to in Article 5, paragraph 2(a) of the Optional Protocol or in Rule 96(e) of the Rules of Procedure of the Human Rights Committee.

2.

In Laureano Atachahua v. Peru, Communication No. 540/1993, the Human

Rights Committee (Committee) considered a similar observation by the government in question. In that case, the Committee held that:

Extra‐conventional procedures and mechanisms which have been established by the Commission on Human Rights and the U.N. Economic and Social Council, and whose mandates are to examine and publicly report on human rights situations in specific countries or territories or on major phenomena of human rights violations worldwide, do not constitute a procedure of international investigation or settlement within the meaning of Article 5, paragraph 2(a), of the Optional Protocol.1

3.

Similarly, the Complaint Procedure of the Human Rights Council, formerly

known as the 1503 Procedure, is not within the scope of the meaning of “procedures of international investigation or settlement” referred to in Article 5, paragraph 2(a) of the Optional Protocol or in Rule 96(e) of the Rules of Procedure of the Human Rights Committee. Furthermore, and in any event, the Complaint submitted to the Human Rights Council under its Complaint Procedure is no longer under consideration by that body.

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Laureano Atachahua v. Peru, Communication No. 540/1993, UN Doc. CCPR/C/51/D/540/1993 (4 July 1994).

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4.

Even if the Complaint Procedure of the Human Rights Council was to be

considered a procedure within the scope of the meaning of “procedures of international investigation or settlement” referred to in Article 5, paragraph 2(a) of the Optional Protocol or in Rule 96(e) of the Rules of Procedure of the Human Rights Committee, Article 5, paragraph 2(a) and Rule 96(e) only preclude cases simultaneously being considered by a procedure of international investigation or settlement. The Human Rights Council ceased consideration of the issue of the Bourgas forced evictions in April 2009, as the Government’s observations acknowledge.

5.

As for exhaustion of domestic remedies, the Republic of Bulgaria

acknowledges that four of the plaintiffs listed in the Communication have indeed exhausted domestic remedies.

These four have demonstrated that domestic

remedies are not adequate to provide relief for the harm suffered or threatened and are not effective for the remedy sought by the complainants in these particular circumstances. Consequently, the present Communication is brought by these four as well as similarly situated individuals in the Gorno Ezerovo and Meden Rudnik communities of Bourgas, Bulgaria.

6.

Indeed, the commentary on Article 44(b) (dealing with the general rule of

exhaustion of domestic remedies) of the International Law Commission’s Articles on State Responsibility, on the exhaustion rule, explains that:

The mere existence on paper of remedies under the internal law of a State does not impose a requirement to make use of those remedies in every case. In particular there is no requirement to use a remedy which offers no possibility of redressing the situation, for instance, where it is clear from the outset that the law which the local court would apply can lead only to the rejection of any appeal.2 2

The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries, James Crawford (2002), p. 265. The origins of the rule lie in the law of the diplomatic

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7.

The Human Rights Committee itself has held that “Authors must … meet the

requirement of exhaustion of all available domestic remedies, insofar as such remedies appear to be effective in the given case….”3

8.

Consequently, since the present case is not now before another procedure of

international investigation or settlement and it has been demonstrated that domestic remedies are inadequate and ineffective to provide the remedies required, the Human Rights Committee should find the Communication admissible.

II.

RESPONSE ON MERITS

9.

COHRE and EOA reiterate that while the property rights claim is noted, the

remedy for enforcing property rights should not and indeed can not lawfully be implemented by carrying out a gross violation of human rights,4 particularly when the reason for the informal residency status is due to unwillingness or inability of the Republic of Bulgaria to fulfil the right to adequate housing without discrimination.

10.

The Human Rights Committee should take guidance from the jurisprudence

of the European Committee of Social Rights, which dealt with forced evictions in a similar context in the case of European Roma Rights Center v. Bulgaria.

11.

In European Roma Rights Center v. Bulgaria, the European Committee of

Social Rights held that: protection of aliens and human rights bodies have accepted the broad principles and general concepts developed in that law in their interpretations of the exhaustion requirement. See generally Chittharanjan Felix Amerasinghe, Local Remedies in International Law (2d ed. 2004), pp. 22‐77, 425‐ 437.

3 Human Rights Committee, Communication No. 1403/2005, Gilberg v. Germany, Views adopted 25 July 2006, para. 6.5 (citing Communication No. 1003/2001, P.L. v. Germany, Views adopted on 22 October 2003, para. 6.5; Communication No. 1188/2003, Riedl‐Riedenstein et al. v. Germany, Views adopted 2 November 2004, para. 7.2).

4 The UN Commission on Human Rights has twice stated that “forced evictions constitute a gross violation of human rights”. See Human Rights Commission resolutions 1993/77 adopted 10 March 1993 and 2004/28 adopted 16 April 2004.

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A person or group of persons, who cannot effectively benefit from the rights provided by the legislation, may be obliged to adopt reprehensible behaviour in order to satisfy their needs. However, this circumstance can neither be held to justify any sanction or measure towards these persons, nor be held to continue depriving them of benefiting their rights.”5

12.

The European Committee went on to hold, “by 9 votes to 1, that the lack of

legal security of tenure and the non‐respect of the conditions accompanying eviction of Roma families from dwellings unlawfully occupied by them constitute a violation of Article 16 of the Revised Charter taken together with Article E [non‐discrimination clause].”6

13.

When reaffirming the holding mentioned in paragraph 11 above, in

INTERIGHTS v. Greece in 2009, the European Committee went on to say “In such situations the Government has a responsibility to provide adequate assistance and take appropriate measures.”7

The European Committee ultimately held

unanimously that there was “a violation of Article 16 of the European Social Charter on the grounds that Roma families continue to be forcibly evicted in breach of the Charter and the legal remedies generally available are not sufficiently accessible to them.”8

14.

COHRE and EOA also reiterate that under international human rights law

binding upon Bulgaria, evictions can only be justified in exceptional circumstances and after all feasible alternatives to eviction have been explored in meaningful 5

European Committee of Social Rights, European Roma Rights Center v. Bulgaria, Complaint No. 31/2005, decision on the merits of 30 November 2006.

6 Id. at Conclusion.

7 European Committee of Social Rights, INTERIGHTS v. Greece, Complaint No. 49/2008, decision on the merits of 11 December 2009.

8 Id. at Conclusion (Article 16 of the European Social Charter guarantees “the right of the family to social, legal and economic protection” and has been held by the European Committee to include an implied right to adequate housing and prohibition on forced eviction. See, e.g., European Roma Rights Center v. Greece, Complaint No. 15/2003, decision on the merits of 7 February 2005; European Roma Rights Center v. Italy, Complaint No. 27/204, decision on the merits of 30 November 2006; European Roma Rights Center v. Bulgaria, Complaint No. 31/2005, decision on the merits of 30 November 2006.

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consultation with the persons affected.9 In this case, not only has this process not been followed, but there exist feasible alternatives to remedying a property rights claim that do not entail committing a gross violation of human rights. For instance, Bulgaria could provide compensation to the ostensible owner of the land in question and then meet its obligation to respect, protect and fulfil the right to adequate housing by regularising the communities of Meden Rudnik and Gorno Ezerovo including by providing the communities with a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats.10

15.

Even if findings of exceptional circumstances warranted eviction, and all

alternatives to eviction that satisfied those circumstances had been explored with the affected individuals, the Republic of Bulgaria failed to satisfy all of the due process protections as mentioned in paragraph 31 of the original Communication dated 21 September 2009, including by failing to provide an opportunity for genuine consultation with those affected; the provision of legal remedies; and the provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts.

Furthermore, as also mentioned in paragraph 31 of the original

Communication, “evictions can not be carried out in a discriminatory manner nor can they result in rendering individuals homeless or vulnerable to the violation of other human rights.�11 As original Communication of 21 September 2009 states, these evictions have a discriminatory effect on the Roma minority population and families were indeed rendered homeless.

III.

URGENT REQUEST FOR INTERIM MEASURES

16.

Some of the petitioners from the Gorno Ezerovo community and the Meden

Rudnik community face imminent forced eviction and destruction of their homes.

See Committee on Economic, Social and Cultural Rights, General Comments. Nos. 4 and 7.

This is essentially the process used by the Republic of South Africa in the case of Modder East Squatters and Another v Modderklip Boerdery (Pty) Ltd (SCA 187/03).

11 Committee on Economic, Social and Cultural Rights, General Comment No. 7.

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10

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These threatened forced evictions may be implemented at any time, and thus halting the threat of an additional gross violation of human rights is urgent.

17.

Forced eviction and destruction of homes 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 and access to livelihood opportunities.

18.

Those already forcibly evicted have been rendered homeless and are in

urgent need of alternative housing.

19.

The threat of these forced evictions was brought to the attention of the

Human Rights Council under its Complaint Procedure on 28 May 2008 (Communication G/SO 215/1 BGR 50 & 51). As mentioned above, the Working Group on Communications kept the complaint under consideration until April 2009, when it ceased consideration. Evictions had been halted while this earlier communication was under consideration by the Working Group on Communications, indicating that interim measures by the Human Rights Committee should result in a beneficial impact.

20.

Consequently, COHRE and EOA again urgently request interim measures

including an immediate halt to any further eviction and the provision of alterative housing to those already evicted.

IV.

CONCLUSIONS

21.

The Republic of Bulgaria is in violation of Articles 17 and 26 of the ICCPR read

alone and in conjunction with Article 2, including the non�discrimination clause of Article 2(2).

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22.

Remedies should include housing and land restitution, as well as

compensation for those forcibly evicted.

23.

Remedies should also include the regularization of Gomo Ezerovo and Meden

Rudnik, including the provision of a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats.

24.

All remedies should be implemented with the meaningful participation of the

affected members of the Goma Ezerovo and Meden Rudnik communities.

25.

COHRE and EOA reserve the right to amend this Communication.

Respectively submitted,

Bret G. Thiele Attorney of Record Senior Expert � Litigation & Legal Advocacy Centre on Housing Rights and Evictions (COHRE) E�mail: Litigation@cohre.org Daniela Mihailova Attorney of Record Legal Program Coordinator Equal Opportunities Association (EOA)

Salih Booker Executive Director Centre on Housing Rights and Evictions (COHRE)

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