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CO H R E M i s s i o n R e p o r t , J a n u a r y 2 0 0 0
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• Background to the Mission • Relevant International Obligations of the Government of Latvia
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Privatisation of Social Housing Security of Tenure Forced Evictions Legal Assistance and Advice Rents and Housing Affordability Utility Costs Social Assistance Habitability
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• The Government of Latvia National Legislation International Human Rights Obligations Housing Rights Obligations • Municipal Governments • The Judicial System • Civil Society
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• International Human Rights Standards Binding on Latvia • General Comment No. 7 (1997) on Forced Evictions • Excerpts from General Comment No. 4 (1991) on The Right to Adequate Housing
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Graphic design: Ontwerpburo Suggestie & illusie, The Netherlands Print: Primavera, Amsterdam, The Netherlands Photos: Scott Leckie
Social housing in need of repair
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I n t r o d u c t i o n The Centre on Housing Rights and Evictions (COHRE) undertook a fact-finding mission to Latvia from 21-24 October 1999 with the aim of understanding the housing and eviction problems facing this former Soviet Republic. The Mission team was comprised of Mr. Scott Leckie (COHRE Executive Director), Mr. Andrew Scherer (Director, Legal Support Unit of Legal Services for New York City) and Ms. Anna Pomykala (COHRE). In Riga, the capital of Latvia, COHRE met with the Latvia NGO Centre, the Latvia University Human Rights Institute, a Member of Parliament and the Parliamentary Sub-Committee on Apartments, representatives of the Central Privatisation Commission for Apartment Houses, the Liepaja, Ogre, and Rezekne towns’ Tenants’ Rights Protection Organizations, the OSCE Mission in Latvia and the Latvian Center for Human Rights and Ethnic Studies. COHRE also met with local officials for housing and social support, and visited a homeless shelter and municipal, private, and abandoned housing in Liepaja, a town situated 200km southeast of Riga on the Baltic Sea. This report presents COHRE’s findings and recommendations for the improvement of the housing rights situation in Latvia. B a ck g ro un d t o t h e M is s i o n
Since the restoration of full independence in August 1991, Latvia has faced many of the well-known challenges associated with the transition to a market economy. The country continues to struggle with falling living standards, rising poverty, growing income disparities and other consequences stemming from the economic shift of the past decade. Though Latvia has been criticised in recent years by various inter-governmental organizations and human rights advocates for human rights violations of non-citizen residents, in particular Russian-
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speakers who comprise 30% of Latvia’s total population, some recent improvements are noteworthy. The liberalisation of the Law on Citizenship, adoption of inclusive amendments to the law on the status of non-citizens, the addition of a Bill of Rights to the Constitution, and forthcoming revisions to the Law on Language, have assisted in beginning to resolve some of these complex problems. While international attention has been drawn to some of the civil and political rights difficulties facing the country, there has been very little coverage of the current situation with respect to the enjoyment or non-enjoyment of economic, social and cultural rights in Latvia. Given the requirement that Latvia ensure basic human rights as a prerequisite to obtaining membership in the European Union (a topic very high on the national political agenda), it is imperative that the economic, social and cultural rights situation in Latvia be accorded the attention this human rights domain deserves. COHRE’s attention was drawn to Latvia when it learned that in 1998, nearly 53,000 eviction cases were brought to Latvian courts — a startlingly high number in a country with a population of 2.6 million.1 The majority of these cases were brought under the Law on the Rent of Living Premises that allows commencement of eviction proceedings when a tenant has fallen 3 months behind in the payment of rent. There is no provision in the law preventing or finding alternatives to the eviction of vulnerable groups such as families with children, the elderly, or disabled. Nor does there exist a right to legal aid in civil cases, effectively depriving tenants — who are generally ill-informed about the judicial process and available remedies — of a fair trial. Some evictions are carried out without the provision of alternative accommodation, as the supply of social housing is insufficient in many areas. Other evictions have resulted in victims’ relocation to social housing of uninhabitable quality. The failure of tenants to pay rent is primarily the result of the impact of free market economics on individual capacities and the considerable reduction of governmental expenditure on housing in recent years. Many factories once employing tens of thousands of people during the Soviet era have been closed due to the collapse of the Soviet market and inefficient production methods. Together with the decline of the agricultural sector, these changes have resulted in high unemployment in both the cities and rural areas — approximately 14% and up to 33%, respectively. Reduced economic opportunities have pushed much of the population towards poverty. As a consequence, people are increasingly unable to cover housing and other living expenses and governmental intervention has not proven adequate to protect the entire population. In spite of these economic declines, housing costs have nearly doubled in the last five years, frequently requiring tenants to spend over 50% of the average monthly wage (100 Lats) on rent (1 Lat = US$.57). Moreover, there is insufficient regulation of the price of utilities, especially heating; an additional cost which often exceeds half of the total rent costs. As a result, many people are left with less than 1 Lat per day with which to meet expenses such as food, clothing, health care, and transportation. The strain imposed by the economic changes since independence has also left the Latvian government with decreased resources for social welfare programs. Unemployment benefits totaling 50% of 1 Human Rights Experts Want to Study Eviction Problem in Latvia, Baltic News Service, 1 June 1999.
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one’s last wage are available for only nine months, and only for individuals whose employers regularly contributed to the social tax. In 1999, over 500 businesses could not afford to pay employees’ wages;2 presumably a much higher number failed to contribute to the social tax, often paying wages ‘off the record’ to avoid this additional cost. The budget for municipal housing comes from local taxes, without contribution from the State. Occasionally, the municipality can offer subsidized housing to victims of evictions, in which case the State pays two-thirds of rent. The high number of eviction cases indicates that these funds are insufficient, however, particularly when tenants are forced to move from non-privatized (municipality-owned) housing (currently about 25% of the total housing stock) to municipality-subsidized housing. On top of that, no new social housing units have been built in Latvia since 1991, which has made the housing rights situation decline further. R e l e v a n t I n te r n a t i o na l O b l i g a t i o ns o f t h e G ov e r n m e n t o f L a t v i a
In addition to the Universal Declaration on Human Rights and other human rights standards, the right to adequate housing (and rights directly related to housing rights) finds recognition within an array of legally binding international instruments, including the International Covenant on Economic, Social and Cultural Rights (CESCR, Article 11(1)), the Convention on the Elimination of All Forms of Racial Discrimination (CERD, Article 5(e)(iii)) and the Convention on the Rights of the Child (CRC, Article 27) and the European Convention on Human Rights and Fundamental Freedoms (Article 8). Each of these standards has been ratified by Latvia. Of greatest significance in terms of housing rights, Latvia ratified the International Covenant on Economic, Social and Cultural Rights in 1992. Although eight years has passed since ratification, Latvia has not yet submitted a State report as required under articles 16 and 17. Article 11(1) of the CESCR, adopted in 1966 and widely accepted as the most significant international legal source of the right to adequate housing, provides: The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on free consent. Despite Latvia’s monist legal system that recognizes international law as the highest legal norm, the Covenant has not been formally incorporated into the national legislative framework, utilized by the Latvian judiciary, nor played a role in the development of relevant national economic or social law or policy. This is due in large part to the lack of awareness of international human rights law among senior judges, lawyers and legislators. Judges are not required to participate in continuing legal education programs, which could provide them with information on how international legal standards could find firmer recognition within the Latvian legal order. While younger lawyers are more likely to be aware of the relevance of international law to national legislation and policy, there is no practice whatsoever of relying on the Covenant in the courts. 2 Social Report Paints Troubling Picture. Baltic Times, 21-27 October 1999, p10.
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Social housing, Liepaja, Latvia
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P r i va t i sa t i o n o f S o c i a l H o u s i n g
In the ten years since independence, Latvia has undertaken an ambitious program of privatisation of housing and industry. The current status of housing rights in Latvia and the de facto housing situation are direct reflections of the broader process of privatisation and any consideration of housing rights in Latvia is inseparable from a discussion on privatisation. In the Soviet era, nearly all of Latvia’s housing was state-owned. As a result of the post-Soviet Law on Privitisation of State and Municipal Apartment Houses, since independence some 70% of the housing stock in Latvia has been offered for privatisation and 240,000 units of housing, or nearly 30% of the housing stock has been privitised to date.
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Privatisation in the housing sphere has created opportunities for individuals to create wealth, generate assets and determine their own housing choices, but it has also created problems of eviction, diminishing affordability and deteriorating housing quality. As a result, sharp divisions are emerging between the housing ‘haves’ and ‘have nots’. Many housing rights protections exist in Latvia, including rent limitations, enforceable housing quality standards, and judicial remedies for housing rights, however, unless concerted measures are undertaken to maintain, strengthen and enforce these protections, Latvia will be threatened with a housing and homelessness crisis of considerable proportions. Despite efforts to provide roughly equal ownership opportunities to apartment dwellers, privatisation has resulted in a great deal of displacement. Although the system for distribution of privatisation certificates was carried out in a uniform manner (with the notable exception of the distinction applied to citizens and non-citizens), many poor tenants quickly sold their certificates for much needed cash, or because they simply did not understand the costs and benefits of privatisation. Moreover, even when poor tenants privitise in a ‘desirable’ neighborhood, the temptation to sell and leave is great, yet long-term options for alternative housing are severely limited. Consequently, as more competitive housing markets develop in areas such as Riga’s Old City, poor people are displaced from their homes and communities. Individuals suffer when they are forced from the communities they have lived in their entire lives, and communities suffer when community members are forced out. S e c u r i t y o f Te n u re
Under current law, formal tenure protections in Latvia appear to be generally adequate. In spite of privatisation, current occupants have, in both private and public housing, under most circumstances, retained the right to remain in their homes, paying a statutorily limited rent. Evictions cannot be undertaken without a court order, and tenants are entitled to notice and an opportunity to be heard before they can be ordered evicted. In addition, although the Latvian Constitution does not recognize the right to housing or security of tenure, article 96 ensures that ‘everyone has the right to inviolability of their private life, home, and correspondence’ (a formulation similar to the ECHR), and the Law on the Rights of the Child provides that children have the right to housing. Despite such protections, however, poorly informed judges, lack of legal representation or legal aid, under-funded advocacy groups and general ignorance about rights and responsibilities have limited the utility of formal tenure rights. In addition, tenure is severely threatened by the escalating cost of housing as well as the continuing deterioration in housing quality. Moreover, proposed changes in the national housing law remove rent ceilings and if adopted will assuredly undermine proposals to clarify and strengthen security of tenure protections for families, disabled persons and elderly persons. Seventy percent of the rental housing in Latvia is ‘social housing’. This housing remains under the ownership of national or municipal governments, while thirty percent has become privitised since independence. The tenure rights of tenants in privately-owned housing are protected for a period of seven years after the housing has been privitised through the national restitution programme. That
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seven-year period is about to expire for the first of the privitised apartments and this is likely to provoke a serious housing crisis if protections against eviction and displacement are not scrupulously implemented. The seven-year period was designed to give the private free market time to develop and stimulate private sector housing construction, thereby resulting in significant amounts of additional housing. Because of the financial crisis and other factors, the opposite has taken place. There has been virtually no housing construction in Latvia since independence. Removing tenure protections under these circumstances is a sure prescription for eviction and displacement of the most vulnerable households in the country. Fo rce d Ev i c t i o ns
The most serious problems with regard to evictions in the public housing sector appear to be threefold: 1) the lack of compliance with current legal standards; 2) the ambiguity of the legal rights and obligations under current law; and 3) the threat that proposed amendments to the law will undermine the ability of low-income households to remain in their homes and communities. As mentioned above, a national children’s rights provision ensures a right to housing for families with children under 16 years of age. Additionally, the Law on Local Governments places an obligation on municipalities to provide housing assistance to families with children. Similar protections exist for elderly and disabled tenants. Despite these positive assurances, however, the Law on Rental Accommodation merely provides that a household may be evicted when it has fallen three months or more behind in rent, and provides no exemption from eviction for families with children, or for elderly or disabled persons. Some judges have found the children’s rights law to be applicable in eviction cases involving the non-payment of rent. This is especially likely when the tenant has received some legal advice or assistance from an advocacy group. However, it appears that many judges are not informed about the applicability of the children’s rights law in eviction cases and therefore ignore the law, and that other judges do not believe that it is applicable in the eviction context. Apparently, the proposed amendments to the new housing law would clarify this ambiguity and make clear within the housing law itself that households with children have a right to alternative housing if evicted. The new law would provide similar protections to households with elderly or disabled people. Court proceedings commenced by private and public landlords for eviction based on nonpayment of rent for three or more months have been increasing at a dramatic pace. As mentioned above, there were an astonishing 53,000 such proceedings in 1998 alone, resulting in 4,167 evictions. Eviction practice, however, varies from municipality to municipality. The decision to commence eviction proceedings in social housing rests with the municipality, and some municipalities are more likely to bring eviction proceedings than others. One positive aspect of the Latvian legal process for eviction for nonpayment of rent is that the tenant can pay the rent arrears at any point prior to actual eviction and avert the eviction. In many jurisdictions elsewhere in the world, once the tenant has been found to have failed to pay rent, the tenant can be evicted, even if the tenant is at that point able to pay the rent. In spite of this, between 1996 and 1998, over 25% of the eviction proceedings in Riga resulted in actual eviction of the tenant household. (Riga Centimes, May 1999). People have been evicted for rental debts of as little as 70 Lats (less that $140).
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Le g a l A s s i s t a n ce a n d A d vi ce
Latvia has almost no legal assistance available for households who face eviction and are unable to afford to pay private attorneys. There is a right to counsel in criminal proceedings under the Latvian Constitution which can be implemented by the Council of Sworn Advocates, but no comparable right in civil matters, no matter how dire the potential consequences of the proceeding. A civil legal aid clinic has just been formed at the Law School of the University of Latvia, but this clinic will only be able to provide assistance to a small number of persons in Riga, and there is no comparable service as of yet in any other part of the country. There is legal authority for judges to appoint free counsel through the Council of Sworn Advocates for minors or ‘persons of unsound mind,’ but these provisions are evidently rarely followed. Homeless shelter, Liepaja, Latvia
Access to the courts is particularly limited for those who do not speak Latvian. While there are Latvian-Russian court interpreters, all court proceedings now take place in Latvian, and court documents are written exclusively in Latvian, which disadvantages non-Latvian speakers in eviction proceedings.
Tenant advocacy NGO’s such as the Liepaja Tenant Association and City of Ogre Tenant Council are enormously helpful in providing advice and assistance to tenants facing eviction and such services should be accessible throughout the country. They provide individual counselling to tenants, help tenants prepare court documents, and intervene on behalf of tenants. Both of these organizations have successfully averted eviction in virtually every case in which they provide assistance. However, with existing resources, these organizations are only able to assist a fraction of the people who need assistance. Moreover, the advocacy efforts of the Liepaja Tenants Association, Ogre Tenant Council and other such groups would benefit by being augmented by assistance from attorneys who could litigate appeals and test cases, and keep such organizations abreast of developments in the law. R e n t s a n d H o u s i n g A f fo rd a b i l i t y
In recent years, housing has become consistently less affordable for low-income tenants, and proposed changes to the housing law threaten to cause widespread eviction and displacement. While rent ceilings have kept legal rents from rising, housing costs in total (including rent and utilities) have escalated enormously for tenants as a result of overall economic malaise. People now often pay more than 50% of their household income for housing. An elderly pensioner, for example is likely to have an income of about 60 Lats (about $100) per month, and be forced to pay at least 30 Lats a month for housing costs. This leaves only one Lat per day for all other living expenses. For the
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numerous households that must rely on unemployment benefits it becomes impossible to afford to remain in their homes. If the rent ceiling which has been retained from the Soviet system of housing administration is dismantled, it must be replaced with laws, policies and practices that prevent the displacement of low-income households. Pensioners, the disabled, and families with children have been affected most heavily, and the extent of their protection under soon-to-be amended apartment, eviction, and social support and pension legislation is the focus of current debate. Amendments to Latvia’s pension laws are currently under consideration, and include a controversial proposal that forbids working pensioners from drawing their pensions and wages will allow them to collect up to 60 Lats of their pensions while employed. Also, the newer package reduces the increase in the pension age, which the government is seeking to raise to 62 National housing privitisation office from the current 60 for men and 57 for women. Amendments have also been proposed to the Law on Local Government which would prohibit the eviction of families with children (age 16 or younger), of the elderly, and the disabled. Rent under the old Soviet system in Riga was 14 centimes (about US $0.25) per square meter per month, or about $15 per month for a typical 60 square meter apartment. This was a ‘symbolic rent’ and the concept of rent in exchange for accommodation was not part of the conventional understanding of one’s relationship to housing. While rent ceilings can vary from municipality to municipality, they remain low and have been retained since Latvia regained independence. However, current rent ceilings have no relationship either to the owner’s expenses for maintenance, whether the owner is the state, a municipality, or a private individual or to tenant affordability. Symbolic rents in the Latvian context no longer make sense since it is likely that the state is ultimately unwilling to support the cost of housing for a vast portion of the population. Nor can private landlords realistically be expected over the long term to support the difference between the cost of operating and maintaining housing and what they receive in symbolic rents. The current system would thus, if retained, cause landlords to either abandon their properties and leave the municipality or state to resume control, force tenants out in order to sell housing units and capture value, or circumvent the rent ceilings (as has apparently already become a widespread practice). The public housing sector also suffers from symbolic rents because there is no relationship between tenant need and subsidy. Thus, public benefits are not appropriately targeted. A uniform rent provides benefits to people who don’t need them, while providing insufficient assistance to those who need them the most, such as the unemployed. If all tenants’ rents are subsidized regardless of income, public
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expenditures for housing are unnecessarily high, and resources that could be devoted to other social needs are diverted. None of these results are healthy for the economy. On the other hand, simply lifting current rent ceilings without replacing them with any limitation or subsidy would lead to widespread eviction and displacement. A system of rent ceilings for lowincome households that are based on income make the most sense. This targets subsidies to those most in need, rather than indiscriminately providing subsidies regardless of need. In the private sector, owners could be entitled to rents that reflect the costs of operation and maintenance along with a reasonable profit, and subsidies could be provided by the government for the difference between the amount a low-income tenant can afford and the those actual costs to the landlord. Real property taxes on apartments, which are scheduled to go into effect in 2003, could provide an opportunity to create a comprehensive and rational subsidy program. U t i l i t y Co s t s
Escalating utility costs have caused the most serious damage to housing affordability during the independence period. While rent ceilings have prevented rents from escalating, rising utility costs (particularly heating costs) have caused housing costs to rise dramatically. In some instances, the costs of utilities have risen over 400% in the last several years. This rise has had the most detrimental impact on households with fixed incomes, such as pensioners, the unemployed (a high and rising percentage of the labor force), and on households with low incomes. Some form of regulation of utility costs and/or comprehensive subsidy system is necessary. Otherwise, given Latvia’s cold climate, poor people will be simply unable to afford their housing regardless of what happens to rents. Several people informed COHRE of the practice of cutting off heat to apartments where the tenant has failed to pay utilities. This is done by physically removing radiators and capping off the central heating to a housing unit. This practice makes no sense, and has long-term implications for the health, safety and welfare of the tenants and damages the integrity of a building’s infrastructure. This practice is particularly damaging in households where there are young children or elderly people. One odd practice that has arisen in recent years where municipalities ask new occupants of social housing units to pay utility and rent arrears that had not been collected from evicted tenants in order to obtain their apartments. This is a completely arbitrary price to attach to an apartment from the perspective of the consumer and essentially amounts to a form of collective punishment because there is no relationship between this outstanding debt owed by the vacating tenant and the value of the apartment to the new tenant. Poorer people — the people who are presumably the most in need — are thus arbitrarily restricted from access to socially owned housing. Municipalities should seek to recover these debts from those who owe them by garnishing wages, attaching bank accounts, or similar methods, or they should simply forgive these debts. S o c i a l A s s i s t a n ce
Municipal financial assistance to tenants who face eviction appear to be inadequate. Some form of emergency social assistance is available to a family once per year, and indeed, is widely used. For
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example, 35% of Liepaja’s population received housing assistance in 1998, thanks in part to social security legislation which can include material assistance in the housing sphere. However, no ongoing assistance for rent payments, enabling a person to remain in the same flat is available. The annual stipend is very small. In Liepaja, for example, a family can receive 25 Lats (less than $50) once per year. As a result, a poor family where the parents are unemployed is very likely to be evicted and forced to move to social housing with less space and lower quality. Even then, the family may find the housing unaffordable if unemployment insurance benefits and other resources are depleted, because the once-a-year assistance will be inadequate to meet housing expenses. Something must be done to make this ‘housing of last resort’ a more secure resource for people in financial difficulty. Although article 109 of the Latvian Constitution provides that ‘everyone has the right to social security in old age, for work disability, for unemployment and in other cases as provided by law’, this provision has not been interpreted to definitively include the right to housing as one form of social assistance. Habitability
Latvia appears to have a reasonably well-developed legal infrastructure addressing housing quality standards, however, many people do not reside in housing which could be classified as habitable. The heating season begins when the outdoor temperature is less than 8 degrees centigrade for three consecutive days, and generally runs from October to April. When tenants are sued for nonpayment of rent, they can legally raise the fact that they have failed to receive heat or hot water or other maintenance to which they are entitled and cannot be evicted if the court finds they have been deprived of services. Municipal governments have the power to bring private landlords to court for failure to provide services and make repairs, but this power is rarely exercised. Individuals or groups of tenants could also bring their landlord to court to obtain repairs and services, but this is rarely done, since people lack the information and advice they need to advocate on their own. Housing quality - or the habitability of housing - in Latvia’s housing stock is presently experiencing an ‘hourglass effect.’ While free market housing in Riga’s Old City and elsewhere has been substantially rehabilitated and is for the most part well maintained, the vast majority of the housing stock has been steadily deteriorating. There has been virtually no investment in maintenance or improvements for social sector housing in the years since independence. The rapid deterioration of this housing poses a long-term threat to Latvia’s well being. The more the housing stock is allowed to deteriorate, the more expensive it becomes to restore the housing to habitable condition, and the more likely it becomes that housing units will be lost and a crisis in housing availability will be provoked.
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The Government of Latvia has ratified several international human rights treaties containing economic, social and cultural rights, including the human right to adequate housing and other rights with a bearing on housing rights. These treaty obligations provide a legal basis upon which the population of Latvia can demand protection and promotion of their housing rights, and which should provide a solid basis for the development of national law and policy by the Government which is both consistent with these standards, as well as sufficient in terms of comprehensively addressing the full extent to which these rights are not currently in place in the country. In this light, COHRE is concerned that the right to adequate housing as enshrined within many international human rights treaties currently binding on Latvia has not yet been taken seriously by the Government of Latvia. With a view to facilitating full compliance with Latvia’s international housing rights obligations, COHRE proposes the following recommendations:
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To t h e G ov e r n m e n t o f L a t v i a National Legislation The Government should:
• Amend the 1998 Constitution to include a new article recognising the human right to adequate housing in a formulation consistent with international human rights law and which is fully justiciable. • Ensure that any amendments to the Law on Apartments proposed by the Parliamentary Sub-Committee on Apartments are fully consistent with Latvia’s international treaty obligations, in particular those under the Covenant on Economic, Social and Cultural Rights. • Ensure that rent ceilings are not removed without the establishment of an adequate alternative system that guarantees housing affordability. • Expand and clarify legal protection of security of tenure rights and rights against forced eviction, in particular for families with children, the elderly, the disabled, the unemployed, low-wage earners and other vulnerable groups. • Ensure that forced evictions are not carried out unless they are done so in manner fully compatible with General Comment No. 7 on forced evictions (1997). • Give favourable consideration to the adoption of a National Housing Rights Act, as a means of consolidating legal protection of housing rights based on Latvia’s international human rights obligations. • Adopt legislation ensuring the right to legal aid for all persons threatened with forced eviction or any other violation of economic, social and cultural rights. • Re-open the judicial training centre with a view to providing comprehensive training to judges on economic, social and cultural rights and international human rights law generally.
International Human Rights Obligations The Government should:
• Prepare and submit, within the shortest possible time-frame, its State report on measures taken to comply with the Covenant on Economic, Social and Cultural Rights, in accordance with articles 1617 of the Covenant. • Ratify Protocol One of the European Convention on Human Rights. • Ratify both the revised European Social Charter and its Collective Complaints Procedure. • Convene a National Summit on the Covenant on Economic, Social and Cultural Rights, with a view to approving a National Plan of Action on the Implementation of Economic, Social and Cultural Rights. • Establish a set of national benchmarks towards the full realisation of all economic, social and cultural rights, in particular the right to adequate housing. • Use the process towards membership within the European Union as an opportunity to streamline domestic law and practice with human rights standards relevant to housing rights. • Request the Technical Co-operation Programme of the United Nations Office of the High Commissioner for Human Rights to provide it with technical assistance on the promotion and protection of economic, social and cultural rights.
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Housing Rights Obligations Old town Riga, recently gentrified.
The Government should:
• In accordance with article 2(1) of the CESCR, devote the “maximum of its available resources” towards the full realisation of the right to adequate housing, through reasonable increases, rather than reduc-tions, in public spending devoted to securing adequate, affordable housing to all residents of Latvia. • Provide funding for NGOs and community-based organisations to enable them to provide public education on housing rights and responsibilities, advice and advocacy. • Base the development of national housing laws and policies on pre-existing international legal obligations recognising housing rights. • Establish a Ministry of Housing to be responsible for developing a National Housing Policy (given the current lack of such a Ministry), based upon the norms of General Comment No. 4 on the right to adequate housing (1991). • Ensure that all national, minority and ethnic groups are treated equally, in terms of law and practice, with respect to the enjoyment of the right to adequate housing. • Regulate all public and private entities providing essential services such as heating, water, elec tricity and other basic requirements linked to housing rights to ensure both affordable prices for these goods, as well as equitable and fair access to these by all population groups. • Collect and make easily available reliable data on evictions, housing affordability, housing quality and levels of homelessness. To M u n i ci p a l G o v e r n m e n ts Municipal Governments in Latvia should:
• Ensure that rent levels are a reflection of wage levels, that they are consistent with the right to affordable housing under international human rights law and at a minimum ensure that no one is forced to pay more than 30% of income on rent. • Carry out a national housing maintenance programme to ensure that the entire national housing stock is habitable within 5 years. • Cease the practice resulting in the collective punishment of paying tenants by discontinuing the provision of utilities in buildings where other tenants fail to pay rent or utility costs. • End the practice of forcing new tenants to pay the outstanding debts of former tenants prior to receiving authorisation to reside within a particular residence.
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To t h e J u d i ci a l Sy s te m The Judicial System in Latvia should:
• Take international human rights standards into account in issuing judgments, and when appropriate utilise such standards as the basis for such decisions, consistent with the monist legal system currently in place in Latvia. • Support a national judicial training programme on economic, social and cultural rights in Latvia, with a view to broadening judicial awareness about the many recent international developments in this legal domain. To Ci v i l S o c i e t y Civil Society in Latvia should:
• Instigate a National Housing Rights Campaign, through the formation of a national housing rights network or NGO coalition. • Carry out legal research on the status of Latvia’s domestic legislation and international obligations of the Government to determine the degree to which to the two systems are or are not compatible with one another. • Consider the use, as appropriate, of international procedural and other remedies designed to pro mote governmental compliance with existing international human rights obligations. • Hold training sessions throughout the country on the right to adequate housing and on how residents of Latvia can attempt to apply international and national economic, social and cultural rights within the domestic legal sphere. • Instigate test case litigation on the rights of persons not to be forcibly evicted. • Expand the use of community organising and encourage tenants to bargain collectively with municipal governments and private landlords to improve the terms and conditions of lease agreements, as well as to demand improved housing conditions.
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I n te r na t i o na l H u ma n R i g h ts S t a n d a rd s B i n d i n g o n L a t v i a
INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (1966), adopted by United Nations General Assembly (UNGA) resolution 2200A(XXI), 16 December 1966, entered into force on 3 January 1976. Article 11(1) states: The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on free consent. INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN (1979), adopted by UNGA resolution 34/180 on 18 December 1979, entered into force on 3 September 1981. Article 14(2)(h) states: States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular, shall ensure to such women the right...(h) to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications. INTERNATIONAL CONVENTION ON THE RIGHTS OF THE CHILD (1989), adopted by UNGA resolution 44/25 on 20 November 1989, entered into force on 2 September 1990. Article 27(3) states:
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States Parties in accordance with national conditions and within their means shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in the case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and Bhousing. EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS (1950), adopted in Rome on 4 November 1950, entered into force on 3 September 1953. Article 8(1) states: Everyone has the right to respect for his private and family life, his home and his correspondence. G e n e ra l Co m m e n t N o . 7 ( 19 97 ) o n Fo rce d Ev i c t i o ns
General Comment No 7 on Forced Evictions (The right to adequate housing (Art. 11 (1) of the Covenant): forced evictions (UN doc. E/C.12/1997/4, adopted by the United Nations Committee on Economic, Social and Cultural Rights, 16 May 1997) provides a legal interpretation of the position of the Covenant on Economic, Social and Cultural Rights with respect to the practice of forced evictions. State parties to the Covenant (including Latvia) are expected to ensure that the contents of general comments issued by the Committee are complied with in good faith. 1. In its General Comment No.4 (1991), the Committee observed that all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats. It concluded that forced evictions are prima facie incompatible with the requirements of the Covenant. Having considered a significant number of reports of forced evictions in recent years, including instances in which it has determined that the obligations of States Parties were being violated, the Committee is now in a position to seek to provide further clarification as to the implications of such practices in terms of the obligations contained in the Covenant. 2. The international community has long recognised that the issue of forced evictions is a serious one. In 1976 the Vancouver Declaration on Human Settlements noted that major clearance operations should take place only when conservation and rehabilitation are not feasible and relocation measures are made.1 In the 1988 Global Strategy for Shelter to the Year 2000, the General Assembly recognized the fundamental obligation (of Governments) to protect and improve houses and neighbourhoods, rather than damage or destroy them.2 Agenda 21 stated that people should be protected by law against unfair eviction from their homes or land.3 In the Habitat Agenda Governments committed themselves to protecting all people from, and providing legal protection and redress for, forced evictions that are contrary to the law, taking human rights into consideration; [and] when evictions are unavoidable, ensuring, as appropriate, that alternative suitable solutions are provided.4 The Commission on Human Rights has also indicated that forced evictions are a gross violation of human rights.5 However, although these statements are important, they leave open one of the most critical
1 Vancouver Declaration on Human Settlements, (1976) Sec. III (8). 2 General Assembly resolution 43/181, Annex, Point 13. 3 Agenda 21, Chapter 7.9 (b).
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issues, namely that of determining the circumstances under which forced evictions are permissible and of spelling out the types of protection required to ensure respect for the relevant provisions of the Covenant. 3. The use of the term forced evictions is, in some respects, problematic. This expression seeks to convey a sense of arbitrariness and of illegality. To many observers, however, the reference to forced evictions is a tautology, while others have criticized the expression illegal evictions on the ground that it assumes that the relevant law provides adequate protection to the right to housing and conforms with the Covenant, which is by no means always the case. Similarly, it has been suggested that the term unfair evictions is even more subjective by virtue of its failure to refer to any legal framework at all. The international community, especially in the context of the Commission on Human Rights, has opted to refer to forced evictions primarily since all suggested alternatives also suffer from many such defects. 4. The term forced evictions as used throughout this General Comment is defined as the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection. The prohibition on forced evictions does not, however, apply to evictions carried out by force in accordance with the law and in conformity with the provisions of the International Human Rights Covenants. 5. The practice of forced evictions is widespread and affects persons in both developed and developing countries. Owing to the interrelation and interdependency which exist among all human rights, forced evictions frequently violate other human rights. Thus, while manifestly breaching the rights enshrined in the Covenant, the practice of forced evictions may also result in violations of civil and political rights, such as the right to life, the right to security of the person, the right to non-interference with privacy, family and home and the right to the peaceful enjoyment of possessions. 6. Although the practice of forced evictions might appear to arise primarily in heavily populated urban areas, it also takes place in relation to forced population transfers, internal displacement, forced relocations in the context of armed conflict, mass exoduses and refugee movements. In all of these contexts, the right to adequate housing and not to be subject to forced evictions may be violated through a wide range of acts or omissions attributable to States Parties. Even in situations where it may be necessary to impose limitations on such a right, full compliance with Article 4 of the Covenant is required so that any limitations imposed must be determined by law only in so far as this may be compatible with the nature of these rights [i.e. economic, social and cultural] and solely for the purpose of promoting the general welfare in a democratic society. 7. Many instances of forced evictions are associated with violence, such as evictions resulting from international armed conflicts, internal strife and communal or ethnic violence.
4 Habitat Agenda, para. 40 (n). 5 Commission on Human Rights resolution 1993/77, para.1.
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8. Other instances of forced evictions occur in the name of development. They might be carried out in connection with conflict over land rights, development and infrastructure projects, such as the construction of dams or other large-scale energy projects, with land acquisition measures associated with urban renewal, housing renovation, city beautification programmes, the clearing of land for agricultural purposes, unbridled speculation in land, or the holding of major sporting events like the Olympic Games. 9. In essence, the obligations of States Parties to the Covenant in relation to forced evictions are based on Article 11(1), read in conjunction with other relevant provisions. In particular, Article 2(1) obliges States to use ìall appropriate meansî to promote the right to adequate housing. However, in view of the nature of the practice of forced evictions, the reference to Article 2(1) to progressive achievement based on the availability of resources will rarely be relevant. The State itself must refrain from forced evictions and ensure that the law is enforced against its agents or third parties who carry out forced evictions (as defined in para. 3 above). Moreover, this approach is reinforced by Article 17(1) of the International Covenant on Civil and Political Rights which complements the right not to be forcefully evicted without adequate protection. That provision recognises, inter alia, the right to be protected against arbitrary or unlawful interference with one’s home. It is to be noted that the State’s obligation to ensure respect for that right is not qualified by considerations relating to its available resources. 10. Article 2(1) of the Covenant requires States Parties to use all appropriate means, including the adoption of legislative measures, to promote all the rights protected under the Covenant. Although the Committee has indicated in its General Comment No.3 (1991) that such measures may not be indispensable in relation to all rights, it is clear that legislation against forced evictions is an essential basis upon which to build a system of effective protection. Such legislation should include measures which (a) provide the greatest possible security of tenure to occupiers of houses and land, (b) conform to the Covenant and (c) are designed to control strictly the circumstances under which evictions may be carried out. The legislation must also apply in relation to all agents acting under the authority of the State or who are accountable to it. Moreover, in view of the increasing trend in some States towards their government greatly reducing their responsibilities in the housing sector, States Parties must ensure that legislative and other measures are adequate to prevent and, if appropriate, punish forced evictions carried out, without appropriate safeguards, by private persons or bodies. States parties should therefore review relevant legislation and policies to ensure that these are compatible with the obligations arising from the right to adequate housing and to repeal or amend any legislation or policies that are inconsistent with the requirements of the Covenant. 11. Women, children, youth, older persons, indigenous peoples, ethnic and other minorities, and other vulnerable individuals and groups all suffer disproportionately from the practice of forced evictions. Women in all groups are especially vulnerable given the extent to statutory and other forms of discrimination which often apply in relation to property rights (including home ownership) or rights of access to property or accommodation and their particular vulnerability to acts of violence and sexual abuse when they are rendered homeless. The non-discrimination provisions of Articles 2(2) and 3 of the Covenant impose an additional obligation upon governments to ensure that, where evictions do occur, appropriate measures are taken to ensure that no forms of discrimination are involved.
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12. Where some evictions may be justifiable, such as in the case of the persistent non-payment of rent or of damage to rented property without any reasonable cause, it is incumbent upon the relevant authorities to ensure that those evictions are carried out in a manner warranted by a law which is compatible with the Covenant and that all the legal recourses and remedies are available to those affected. 13. Forced evictions and house demolitions as a punitive measure are also inconsistent with the norms of the Covenant. Likewise, the Committee takes note of the obligations enshrined within the 1949 Geneva Conventions and 1977 Protocols which relate to prohibitions on the displacement of the civilian population and the destruction of private property as these relate to the practice of forced evictions. 14. States parties shall ensure, prior to carrying out any evictions, and particularly those involving large groups, that all feasible alternatives are explored in consultation with affected persons, with a view to avoiding, or at least minimizing, the need to use force. Legal remedies or procedures should be provided to those who are affected by eviction orders. States Parties shall also see to it that all individuals concerned have a right to adequate compensation for any property, both personal and real, which is affected. In this respect, it is pertinent to recall article 2(3) of the International Covenant on Civil and Political Rights which requires States Parties to ensure ìan effective remedyî for persons whose rights have been violated and the obligation upon the ìcompetent authorities (to) enforce such remedies when grantedî. 15. In cases where eviction is considered to be justified, it should be carried out in strict compliance with the relevant provisions of international human rights law and in accordance with general principles of reasonableness and proportionality. In this regard it is especially pertinent to recall General Comment 16 by the Human Rights Committee, relating to Article 17 of the International Covenant on Civil and Political Rights, which states that interference with a personís home can only take place ìin cases envisaged by the lawî. The Committee observed that the law ìshould be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstancesî. The Committee also indicated that relevant legislation must specify in details the precise circumstances in which such interferences may be permitted. 16. Appropriate procedural protection and due process are essential aspects of all human rights but it is especially pertinent in relation to a matter such as forced evictions which directly invokes a large number of the rights recognised in both International Human Rights Covenants. The Committee considers that the procedural protections which should be applied in relation to forced evictions include: (a) an opportunity for genuine consultation with those affected; (b) adequate and reasonable notice for all affected persons prior to the scheduled date of eviction; (c) information on the proposed evictions and where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected; (d) especially where groups of people are involved, government officials or their representatives to be present during an eviction; (e) all persons carrying out the eviction to be properly identified; (f) evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise; (g) provision of legal remedies; and (h) provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts.
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17. Evictions should not result in rendering individuals 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. 18. The Committee is aware that various development projects financed by international agencies within the territories of State Parties have resulted in forced evictions. In this regard, the Committee recalls its General Comment No.2 (1990) which states, inter alia, that international agencies should scrupulously avoid involvement in projects which, for example ... promote or reinforce discrimination against individuals or groups contrary to the provisions of the Covenant, or involve large-scale evictions or displacement of person without the provision of all appropriate protection and compensation. Every effort should be made, at each phase of a development project, to ensure that the rights contained in the Covenant are duly taken into account.6 19. Some institutions, such as the World Bank and the Organisation for Economic Co-operation and Development (OECD) have adopted guidelines on relocation and/or resettlement with a view to limiting the scale and human suffering associated with the practice of forced eviction. Such practices often accompany large-scale development projects, such as dam-building and other major energy projects. Full respect for such guidelines, in so far as they reflect the obligations contained in the Covenant, on the part of both the agencies themselves and by States Parties to the Covenant is essential. The Committee recalls in this respect that statement in the Vienna Declaration and Programme of Action to the effect that: while development facilitates the enjoyment of al human rights, the lack of development may not be invoked to justify the abridgement of internationally recognised human rights (para. 10). 20. In accordance with the guidelines adopted by the Committee for reporting, State Parties are requested to provide various types of information pertaining directly to the practice of forced evictions. This includes information relating to (a) the number of persons evicted within the last five years and the number of persons currently lacking legal protection against arbitrary eviction or any other kind of eviction; (b) legislation concerning the rights of tenants to security of tenure, to protection from eviction and (c) legislation prohibiting any form of eviction.7 21. Information is also sought as to measures taken during, inter alia, urban renewal programmes, redevelopment projects, site upgrading, preparation for international events (Olympics and other sporting competitions, exhibitions, conferences, etc.) ‘beautiful city’ campaigns, etc. which guarantee protection from eviction or guarantee rehousing based on mutual consent, by any persons living on or near to affected site.8 Despite these provision, few States Parties have included the requisite information in their reports to the Committee. The Committee, therefore, wishes to emphasise in this regard the importance it attaches to the receipt of such information.
6 UN doc. E/1990/23, paras. 6 and 8. 7 E/C.12/1990/8, Annex IV. 8 Id.
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22. Some States Parties have indicated that information of this nature is not available. The Committee recalls that effective monitoring of the right to adequate housing, either by the Government concerned or by the Committee, is not possible in the absence of the collection of appropriate data and would request all States Parties to ensure that the necessary data is collected and is reflected in the reports submitted by them under the Covenant. E xce r p ts f ro m G e n e ra l Co m m e n t N o . 4 ( 19 9 1 ) o n T h e R i g h t t o A d e q u a te H o u s i n g
General Comment No. 4 on the Right to Adequate Housing (art. 11(1) of the Covenant), Sixth session, 1991, (UN doc. E/1992/23) was approved by the Committee on Economic, Social and Cultural Rights by consensus, and is considered to be the single most authoritative international legal interpretation of what the right to housing actually means in terms of international law. The Comment provides a broad-reaching definition of the right to housing and contains numerous clauses and principles which are, in one way or another, relevant for all countries. 8. Thus the concept of adequacy is particularly significant in relation to the right to housing since it serves to underline a number of factors which must be taken into account in determining whether particular forms of shelter can be considered to constitute “adequate housing” for the purposes of the Covenant. While adequacy is determined in part by social, economic, cultural, climatic, ecological and other factors, the Committee believes that it is nevertheless possible to identify certain aspects of the right that must be taken into account for this purpose in any particular context. They include the following: (a)
Legal Security of Tenure:
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 (emphasis added); 9. As noted above, the right to adequate housing cannot be viewed in isolation from other human rights contained in the two international instruments. Reference has already been made in this regard to the concept of human dignity and the principle of non-discrimination. In addition, the full enjoyment of other rights such as the right to freedom of expression, the right to freedom of association (such as for tenants and other community-based groups), the right to freedom to choose one’s residence and the right to participate in public decision-making is indispensable if the right to adequate housing is to be realized and maintained by all groups in society. Similarly, the right not be subjected to arbitrary interference with one’s privacy, family, home or correspondence constitutes a very important dimension in defining the right to housing.
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11. States parties must give due priority to those social groups living in unfavourable conditions by giving them particular consideration. Policies and legislation should correspondingly not be designed to benefit already advantaged social groups at the expense of others. The Committee is aware that external factors can affect the right to a continuous improvement in living conditions, and that in many States parties overall living conditions declined during the 1980s. However, as noted by the Committee in its General Comment No. 2, despite externally caused problems, the obligations found in the Covenant continue to apply and are perhaps even more pertinent during times of economic contraction. It would thus appear to the Committee that a general decline in living and housing conditions, directly attributable to policy and legislative decisions by States parties, and in the absence of accompanying compensatory measures, would be inconsistent with the obligations found in the Covenant. 17. The Committee views many component elements of the right to adequate housing as being at least consistent with the provision of domestic legal remedies. Depending on the legal system, such areas might include, but are not limited to: (a) legal appeals aimed at preventing planned evictions or demolitions through the issuance of courtordered injunctions; (b) legal procedures seeking compensation following an illegal eviction; (c) complaints against illegal actions carried out or supported by landlords (whether public or pri vate) in relation to rent levels, dwelling maintenance, and racial or other forms of discrimination; (d) allegations of any form of discrimination in the allocation and availability of access to housing; and (e) complaints against landlords concerning unhealthy or inadequate housing conditions. In some legal systems, it would also be appropriate to explore the possibility of facilitating class action suits in situations involving significantly increased levels of homelessness. (emphasis added) 18. In this regard, the Committee considers that instances of forced evictions are prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law. (emphasis added)
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