CONTEMPORARY HOUSING ISSUES IN A CHANGING EUROPE
National University of Ireland, Galway
20-21st April 2012
Régis Brillat
Head of the Department of the European Social Charter
Council of Europe
Ladies and Gentlemen,
Thank you very much for giving me for the floor.
I would like to begin the presentation by emphasising my great pleasure in being here
today with you all. For quite a number of years, I've been invited by Galway University to
participate in several colloquies. I've always felt very honoured by these invitations and I
am grateful to the organisers for having continuously invited me despite my lack of
participation due to other commitments. That is why I truly enjoy being here today. I
would like to express many thanks to Padraic Kenna and Gerald Quinn for having
invited me and congratulate them for their hard work on human rights issues.
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I will address a slightly different issue than the one treated by the previous speaker:
namely what is the exact content of the right to housing in international and European
law?
Before embarking on the perspective of identifying which are the contemporary issues
of the right to housing, I feel it is useful to reflect to some extent on a preliminary
question: Is the right to housing a RIGHT? Is it a HUMAN RIGHT?
An obvious reply, coming from an audience of distinguished specialists of housing
issues, is ‘YES’. And it goes without saying that I fully agree with such a reply.
But let us be realistic: the vast majority of distinguished human rights lawyers would say
‘NO’. Of course, they all agree that all human rights are “universal, indivisible,
interdependent and interrelated” according to the Declaration adopted during the 1993
Vienna Conference on Human Rights.
But what do these words entail in practice?
Some people would reply ‘NOT MUCH’: I invite you to be more optimistic and to say
‘NOT ENOUGH’. Indeed, the claims for indivisibility have progressively changed the
impact of social rights as human rights and the way they are treated at national and
international level.
Within the United Nations Organisation, over the past years several important treaties
were adopted or existing treaties were improved by the addition of optional protocols
establishing further control mechanisms.
In Europe, the European Union’s Charter of fundamental rights is now in force.
Within the Council of Europe, it is fair to say that the European Social Charter is now
well known and constitutes a genuinely efficient tool for ensuring the respect of social
rights.
It is also fair to say that significant results have been achieved as well in other
continents. We should pay tribute to the jurisprudence of courts in India, South Africa
and South America, all of which should be an inspiration to Europe.
In contrast to the on-going debate on the link between housing and human rights, we all
know the concrete importance of housing in everyone’s life and in the functioning of
social services in all countries at national or local authority level. This brings us back to
the roots of the issue: Housing is linked to the very heart of human dignity and,
therefore it is an essential component of human rights.
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Thomas Hammarberg, the former Council of Europe’ Commissioner on Human Rights
used to say that “Political and civil rights can hardly be exercised by people who are
denied basic economic and social rights”.
And, amongst these social rights, the right to housing bears a specific importance in
view of its multiple dimensions:
Firstly, it is a true human right as such but it is much more than that.
Indeed, home is the place where other rights are exercised, including the right to privacy
and the right to private and family life; the European Court of Human Rights attaches
great importance to the inviolability of home.
Another dimension of the right to housing is that enjoying a dwelling is also a
prerequisite condition for exercising other rights, including voting rights, right to health,
etc.
Another important feature of the right to housing is that it applies to everyone. But it is
particularly relevant for persons belonging to disadvantaged sections of the population.
Therefore, all aspects of housing rights must be guaranteed without discrimination,
particularly against Roma and Travellers, persons belonging to minorities, persons
confronted with poverty or social exclusion or at risk of social exclusion.
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What does the European Social Charter bring into this debate?
The Council of Europe was created in 1949 by 15 European countries. Today 47
European States are member States.
The first achievement of the Council of Europe was the adoption in 1950 of the
European Convention of Human Rights which established the well-known European
Court of Human Rights. But the rights proclaimed in the Convention are mainly ‘civil and
political’ rights. The Convention does not contain all the rights embodied in the
Universal Declaration of 1948 and this is why the Convention may be regarded as an
unfinished construction.
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The European Social Charter, adopted in 1961, is a binding treaty with the same legal
value as the Convention. It provides for economic and social human rights, thus
complementing the European Convention on Human Rights. Unfortunately, the control
mechanism established under the Charter was rather weak compared to the one
provided by the Convention, in particular to the right of application to the European
Court of Human Rights which is recognised for all individuals in respect of the rights
covered by the Convention.
However, the Charter was revised in the 1990s and its control mechanism was
significantly upgraded. Its control body, the European Committee of Social Rights is
becoming more and more important in today’s Europe. This institution is composed of
17 independent and impartial experts.
The rights of the Charter were also updated and expanded in 1996. One of the most
significant changes was, indeed, the adjunction of Article 31: ‘The Right to housing’,
according to which:
“Article 31 –
Part I: Everyone has the right to housing
Part II: With a view to ensuring the effective exercise of the right to housing, the Parties undertake to take
measures designed:
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to promote access to housing of an adequate standard;
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to prevent and reduce homelessness with a view to its gradual elimination;
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to make the price of housing accessible to those without adequate resources.
Several other provisions of the Charter are also of importance to ensure the right to
housing: such as Article 16 which concerns the right to housing of families, Article 19§4
which provides for equal treatment of migrant workers in access to social housing.
All these provisions are very nicely drafted. But what do they mean in practice?
The European Committee of Social Rights is entrusted with the task of assessing
whether the 43 European countries which have ratified the European Social Charter do
respect their commitments, that is to say whether citizens enjoy their rights under the
Charter.
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This body is composed of 15 independent experts, appointed by the Council of Europe’s
Committee of Ministers for a period of 6 years, renewable once. This is not a court.
Nonetheless, the Committee rules on the conformity of national situations to the
European Social Charter.
To achieve this task, the Committee has to interpret the different provisions of the
Charter either when examining the national situations in the framework of the yearly
reporting procedure which concerns all 43 States Parties or through the collective
complaints procedure.
Let me focus on this procedure: it allows trade unions and NGOs to lodge an application
to the Committee directed against a State which they consider does not respect the
Charter. After the (rather formal) examination of the admissibility of the complaint, an
adversarial procedure takes place between the complainant organisation and the
respondent Government. In most instances, the procedure is in writing but there may be
public hearings. At the end, the European Committee of Social Rights adopts a decision
on the merits of the complaints in which it holds whether there is a violation or not of the
Charter.
A rather limited number of countries have accepted the procedure: 15 (amongst which
Ireland); with the most recent acceptance by the Czech Republic. Still, the procedure
has already led to significant results which concern all the States Parties as the results
of the complaints are taken into consideration through the reporting system.
Since the entry into force of the procedure in 1998, 82 complaints have been registered,
18 of which concerned various aspects of the right to housing.
The European Committee of Social Rights has thus already ruled on the situation of
several States Parties to the Charter, on the occasion of collective complaints brought
to it by several NGOs, including FEANTSA. In particular, the very important case
FEANTSA v. France (complaint n° 39/2006) together with the case ATD Fourth World v.
France (complaint n° 33/2006) paved the way for the elaboration of the Committee’s
interpretation of Article 31. The two decisions on the merits of these complaints were
adopted on 5 December 2007.
The Committee has therefore developed a rather sophisticated ‘case law’ on the matter,
which covers
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the content of the right to housing,
the modalities of the implementation of the right to housing,
the application of the right to housing in respect of certain groups of the
population.
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A-Definitions (the content of the right to housing)
The central part of this interpretation consists of definitions of what the Charter requires
from States Parties. It includes "qualitative" aspects, "quantitative" aspects and financial
aspects.
1) "qualitative" aspects
To ensure the right to decent housing, the quality of each dwelling must be of a
sufficient standard so as to respect the dignity of individuals who occupy it - the concept
of dignity is, in fact, at the heart of all human rights.
"Adequate housing" means:
a) an accommodation which has all the basic amenities (water, heating, garbage
disposal, sanitation, electricity, etc..) and where certain risk factors, such as lead or
asbestos, are under control;
b) a dwelling not overcrowded, that is to say housing of a size which is adapted to the
number of members and composition of the household who resides there;
c) housing with a legal guarantee of tenure, to ensure that the enjoyment of housing is
not only temporary.
2) "quantitative" aspects of the right to housing
The goal is that everyone has a home. This requires that firstly the situation of
homelessness is addressed through prevention and by reducing the number of
homeless.
Preventing the condition of homelessness
The requirement on States Parties is to prevent vulnerable people from becoming
homeless. To this end, in particular, the risk of expulsion from a dwelling unit shall be
limited: the expulsion must be prescribed by rules sufficiently protective of the rights of
persons concerned and shall be carried out in accordance with these rules. When an
expulsion is to occur, it must be carried out in conditions that respect the dignity of those
involved.
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Furthermore, there must be legal remedies, and legal assistance to those in need, to
ensure compensation for illegal evictions.
Reducing the number of homeless
States should work to gradually reduce the number of homeless with a view to eliminate
the state of homelessness. To reduce the number of homeless, emergency measures
are needed: they include the provision of immediate shelter. Places must be sufficient
and living conditions in these shelters must respect the dignity of persons.
However, the provision of temporary shelter, even decent, cannot be regarded as a
satisfactory solution and those living in such conditions must be offered adequate
housing within a reasonable time.
3) "Financial" aspects of the right to housing
A supply of affordable housing should be provided to people who do not have sufficient
resources.
Housing is affordable when the household occupying it can pay the initial costs (deposit,
advance rent), the current rent and other costs (for example, operating expenses,
maintenance and management) over a long period, while maintaining a minimum
standard of living, as defined by the society in which it is situated.
To this end, States Parties must:
- promote housing construction, particularly housing that is aimed at, in particular the
most disadvantaged;
- reduce the period required for housing when it is too long. Judicial or other appeals
must exist in case of possible excessive waiting periods;
- provide, where appropriate, housing assistance for persons on low-income and
disadvantaged groups of the population.
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B - Modalities of implementation of the right to housing
The European Social Charter is a human rights treaty. Therefore, the rights in the
Charter must take a practical and effective form. Article 31 does not impose on States
an obligation of results. Still, when accepting Article 31, States undertake to define a
strategy to implement the right to housing and to ensure this right is respected within a
reasonable period of time. The European Committee of Social Rights has indicated, in
practical terms, how this strategy should be construed and put in practice:
The obligation of States Parties is to take legal and practical measures, that are
necessary and which meet the objective of effectively protecting the right to housing.
States have discretion to determine what should be done, particularly to preserve the
balance between public interest and the interest of a specific group, and for making
choices and priorities in terms of resources.
In practice, this means that States have the obligation to:
a) implement ways (normative, financial, and operational) that will allow real progress
towards the realization of housing rights;
b) keep accurate statistics to compare needs, resources and results;
c) conduct regular verification of the effectiveness of strategies adopted, that is to say,
their impact on the actual situation;
d) establish a timetable and not postpone indefinitely the terms of achievements;
e) pay particular attention to the impact of choices made on all categories of persons
concerned, first, those whose vulnerability is greatest, i.e. in particular families and
persons in positions of exclusion or poverty.
There is no single solution and the European Committee of Social Rights will never tell
States Parties exactly what they have to do and how to do it. This is because States
enjoy discretion in the way they implement the Charter in general, not only with regard
to the right to housing. States should combine the principles sustaining the Charter and
the definitions given by the Committee with their national situation or tradition, with a
view to transforming the rights enumerated in the Charter into concrete and daily
realities for all.
Legislation, as it exists in Scotland (“Homelessness Scotland Act of 2003”) or in France
(“loi DALO, 5 March 2007”), which provides for an individual right to a dwelling which
can be claimed before a court, is not an obligation under the Charter. There exist other
solutions which enable the State Party to comply with Article 31.
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Moreover, the European Committee of Social Rights found the situation in France to be
in violation of Article 31 on several grounds, in particular because of the lack of progress
in practice despite the legislation providing an access to court for homeless persons.
Up to now, in applying all the principles listed above to the situation in France, the
Committee concluded that the situation was not in conformity with the Social Charter for
the following reasons:
Insufficient progress as regards the eradication of substandard housing and lack
of proper amenities of a large number of households; (article 31§1);
Unsatisfactory implementation of the legislation on the prevention of evictions
and the lack of measures to provide rehousing solutions for evicted families (article
31§2);
The measures currently in place to reduce the number of homeless are
insufficient, both in quantitative and qualitative terms (article 31§2);
Insufficient supply of social housing accessible to low-income groups (article
31§3);
Malfunctioning of the social housing allocation system and the related remedies
(article 31§3);
Deficient implementation of legislation on stopping places for travellers (article
31§3 taken in conjunction with article E).
One of the explanations of these shortcomings is the lack of dwellings: even if the judge
is empowered to impose on the relevant authorities the adjudication of a dwelling to
homeless persons, the administration cannot proceed because of the lack of available
dwellings.
This brings to mind a Colloquy in which I heard Miloon Kothary, the first UN Special
Rapporteur on adequate housing as a component of the right to an adequate standard
of living, claiming that the right to housing was too important to be left to lawyers as it
was firstly an issue for architects!
The decisions of the European Committee of Social Rights are binding on the States
Parties to the Charter but they do not have an immediate effect at national level.
Citizens and NGOs should continue to take action, before national courts, and claim
their rights on the basis of the Committee’s decisions.
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C- Application of the right to housing in respect of certain groups of the population
In addition to general issues, the Committee has also dealt with more specific aspects
of the right to housing:
i)
Housing Rights of Roma
In respect of several complaints concerning rights of Roma and Travellers concerning
Italy, Greece, France, Portugal, Bulgaria and Belgium, the Committee found violations
of the right to housing , inter alia, on the grounds of:
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poor living conditions of Roma and Travellers in camps or stopping places,
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the failure to create a sufficient number of stopping places for Travellers,
the carrying out of evictions without respecting the dignity of the persons
concerned and without alternative accommodation being made available,
the lack of legal remedies and/or legal aid to those who need it to seek redress
from the courts following evictions,
the lack of adequate supply of affordable housing for persons with limited
resources.
In two cases (Centre on Housing Rights and Evictions (COHRE) v. Italy, complaint No.
58/2009; decision on the merits of 25 June 2010; and Centre on Housing Rights and
Evictions (COHRE) v. France, decision on the merits of 28 June 2011, complaint No.
63/2010, the Committee found what it called an ‘aggravated violation’ of the Charter.
The Committee finds that there is an aggravated violation when the situation in a
defined country is characterised by:
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the stigmatisation of a group of the population, and
an active or passive role of public authorities in this respect.
ii)
In the situation of Croatia, on the basis of a complaint lodged by the Centre on
Housing Rights and Evictions (COHRE), complaint No. 52/2008; decision on the merits
of 22 June 2010, the Committee found violations of the right to housing because part of
the ethnic Serb population displaced during the war in Croatia has been subjected to
discriminatory treatment as the families have not been allowed to reoccupy their former
dwellings prior to the conflict, nor have they been granted financial compensation for the
loss of their homes.
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More precisely, the Committee found that the housing programme had not been
implemented within a reasonable timeframe. Therefore, displaced families who
expressed their wish to return to Croatia and applied for the housing aid foreseen in the
programme had been obliged to remain without security of tenure for an unreasonably
long period of time due to the slow processing of applications.
The Committee also held that the delays and uncertainty associated with the
implementation of the housing programme since 2003 had failed to accommodate the
heightened vulnerability of displaced families, who constitute a distinctive group who
suffer particular disadvantage. This had also constituted a failure to accommodate the
situation of ethnic Serb families in particular, who comprise the bulk of the families
affected by non-satisfaction of their housing needs and who constitute a particularly
vulnerable group on account of their ethnicity.
iii)
In respect of Slovenia, on the basis of a complaint lodged by FEANTSA, 8
September 2009, complaint No. 53/2008; decision on the merits of 8 September 2009,
the Committee found a violation of the Charter, because a vulnerable group of persons
occupying denationalised flats in the Republic of Slovenia have been deprived of their
occupancy titles and subjected to eviction. As the persons concerned were denied
access to alternative housing in the long term, they have now become homeless. These
measures have also resulted in housing problems for the families of the evicted
persons.
The Committee found a violation on the ground that in respect of former holders of the
Housing Right over flats which were restored to their private owners, the combination of
insufficient measures for the access to or purchase of a substitute flat, the changes in
the rules on tenancy and the increase in rents, were, at the end of the Slovenian
Government’s reforms, likely to place a significant number of households in a very
precarious position and to prevent them from effectively exercising their right to housing.
iv)
In respect of the Netherlands, Defence for children International, in complaint No.
47/2008, alleged that Dutch legislation deprived children residing illegally in the
Netherlands of the right to housing (and as a corollary other rights of the Charter). In its
decision on the merits of 20 October 2009, the Committee found that the legislation and
practice in the Netherlands violated the right to shelter within the meaning of the Charter
(not the right to housing as such) with regard to children unlawfully present on its
territory. It insisted that:”Where the vulnerable category of persons concerned are
children unlawfully present in the territory of a state as in the instant case, preventing
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homelessness requires states to provide shelter as long as the children are within its
jurisdiction.”
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In conclusion, I strongly support the view that:
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All European States should ratify the European Social Charter, in its revised
version;
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All countries should accept Article 31;
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All countries should accept the collective complaints procedure.
Implementing the right to housing for all seems to be a rather complicated task for
public authorities. Nevertheless, international treaties and their monitoring bodies
provide a framework for the action of all those concerned. Exchanging good practice
between countries is a valuable source of information and inspiration.
Now, thanks to complaints lodged by NGOS, in particular by FEANTSA, the
interpretation of Article 31 is clear. The principles to be respected, the values to be
upheld and the rights to be implemented are now available to all. What remains to be
done is to define a country strategy for the years ahead and to constantly review the
needs of the population.
I am convinced that our Conference will contribute to the process of defining the
strategies. It will also help to bring the international commitments and obligations into
the reality of everyday life.
Thank you.
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