Legal eviction violates the right to family life if the way in which it is carried out does not take into account the consequences and the peculiarities of those who are evicted

JUDGMENT

Hirtu and others v. France  14.05.2020 (no. 24720/13)

see here

SUMMARY

The case concerned the clearance of an unauthorised encampment where the applicants, who are of
Roma origin, had been living for six months.

The Court observed first of all that the circumstances of their forcible eviction and their subsequent
living conditions did not amount to inhuman or degrading treatment.

The authorities had been entitled in principle to evict the applicants, who had been unlawfully
occupying municipal land and could not claim to have a legitimate expectation of remaining there.
Nevertheless, with regard to the manner of the applicants’ eviction, the Court noted that the
measure had not been based on a judicial decision but on the procedure for issuing formal notice
under section 9 of the Law of 5 July 2000. The decision to use that procedure had entailed a number
of consequences. Owing to the short time between the issuing of the prefect’s order and its
implementation, no account had been taken of the repercussions of the eviction or the applicants’
particular circumstances. Furthermore, because of the procedure that had been applied, the remedy
provided for by domestic law had come into play after the decision had been taken by the
administrative authorities and had been ineffective in the present case.

The Court emphasised that the fact that the applicants belonged to an underprivileged social group,
and their particular needs on that account, had to be taken into consideration in the proportionality
assessment that the national authorities were under a duty to undertake. As that had not been done
in the present case, the Court held that the manner of the applicants’ eviction had breached their
right to respect for their private and family life.

Lastly, the Court noted that that there had been no judicial examination at first instance of the
applicants’ arguments under Articles 3 and 8 of the Convention, either in proceedings on the merits
or under the urgent procedure, in breach of the requirements of Article 13.

PROVISIONS

Article 3

Article 8

Article 13

PRINCIPAL FACTS

The applicants are seven Romanian nationals who belong to the Roma community: Laurentiu
Constantin Hirtu, Stanica Caldaras, Dorina and Paulina Cirpaci, Imbrea and Virginia Istfan, and
Angelica Latcu.

The applicants stated that they had lived in France for many years and that, with one exception, they
all held ten-year residence permits as European Union nationals. At the time of the events, all the
school-age children were attending school. On 1 October 2012, after a previous encampment had
been dismantled, the applicants, as part of a group of 141 people including around 50 children,
moved in 43 caravans to a plot of land in La Courneuve, in the suburbs of Paris.

At the request of the mayor of La Courneuve, the prefect of Seine-Saint-Denis issued an order on
29 March 2013 requiring “the travellers unlawfully settled on the site at rue Politzer and rue de la
Prévôté in the municipality of La Courneuve” to vacate the site within 48 hours, failing which they
would be forcibly evicted.

Mr Hirtu was the only applicant who succeeded in bringing an action in the Montreuil Administrative
Court, which declared his action inadmissible. He appealed to the Versailles Administrative Court of
Appeal, without success.

On 5 April 2013 Virginia Istfan, Dorina Cirpaci, Stanica Calderas and another occupant of the site
submitted an urgent application for protection of a fundamental freedom to the administrative
court, requesting that the eviction be postponed until 1 July 2013 to allow them time to find stable
accommodation.

In a decision of 10 April 2013, served on the same day, the urgent-applications judge declared the
application inadmissible. The applicants lodged an appeal with the urgent-applications judge of the
Conseil d’État, but withdrew it subsequently on the advice of their lawyer since they had been
evicted from the land in the meantime.

On 11 April 2013 the applicants applied to the Court for an interim measure under Rule 39, seeking
the suspension of the prefect’s order and relying on Articles 3 and 8 of the Convention and on Article
2 of Protocol No. 1 (right to education). On 12 April 2013 their representative, the European Roma
Rights Centre (ERRC), informed the Court that the applicants had left of their own accord during the
night of 11 April and were staying a few streets away in Bobigny.

No accommodation was offered to the applicants, who stated that they had slept outside or in their
cars before moving to the settlement known as Coquetiers in Bobigny, where they had to share a
caravan with other families or buy a new one.

On 19 August 2014 the municipality issued an order requiring the inhabitants of the Coquetiers
encampment to vacate it within 48 hours. Several of the inhabitants lodged an urgent application for
protection of a fundamental freedom with the administrative court, which rejected it on 25 August
2014. The same day, three of the applicants requested the Court to apply Rule 39 of the Rules of
Court, seeking the suspension of the municipality’s order.

On 1 September 2014 the duty judge decided not to apply Rule 39, in view of the assurances given
by the Government that prior to any eviction the prefect would carry out the social assessment
provided for by domestic law and would provide all vulnerable persons with emergency
accommodation. On 16 April 2015 the Court declared the application (no. 58553/14) inadmissible.

THE DECISION OF THE COURT…

Article 3

The Court observed that the applicants complained, firstly, about the circumstances of their eviction.
However, the removal from the site that had been lawfully ordered by the prefect had not taken
place, as the applicants had anticipated it and had left the camp of their own accord. While the
applicants alleged that most of their caravans had been seized, this had not been established and
they did not claim to have been subjected to any other violence on that occasion. The applicants’
second complaint concerned their living conditions after the eviction. In that connection the Court
observed that several of the applicants had returned to Romania after the camp had been cleared,
and that Stanica Caldaras and his family had been provided with social housing. As to the others,
their request for interim measures concerning their situation in the Coquetiers settlement had been
rejected in view of the assurances provided by the Government, and their further application to the
Court had been declared inadmissible. Accordingly, the French authorities could not be said to have
remained indifferent to their situation.

The Court therefore held that there had been no violation of Article 3 of the Convention.

Article 8

The Court stated at the outset that the applicants could not claim interference with their right to
respect for their homes, in view of the lack of a sufficient and continuous link with the place where
they had been living. As in several previous cases, however, the Court considered that the clearance
of an encampment inevitably had repercussions on private life and family ties. There had therefore
been interference with the applicants’ right to respect for their private and family life.

In the present case the Administrative Court of Appeal had observed that, according to a police
report submitted to it, the caravans on the site had been on wheels and had been parked next to
vehicles capable of towing them. The court had inferred from this that the Law of 5 July 2000,
referred to above, was applicable in the applicants’ case. The interference had therefore been in
accordance with the law.

The Court noted that the prefect’s order had been based both on the public-health risks and on the
disturbance to people in the locality. The police report had mentioned a number of problems
suffered by local businesses, including break-ins, the presence of people carrying knives, fights, litter
in the hedgerows, and the presence of excrement. The Court therefore considered that the
interference had pursued the legitimate aims of protecting health and public safety and protecting
the rights and freedoms of others.

The Court drew a distinction between the eviction itself and the manner in which it had been carried
out. With regard to the former aspect, the authorities had been entitled in principle to evict the applicants, who had been unlawfully occupying municipal land and could not claim to have a
legitimate expectation of remaining there.

As to the manner in which the eviction had been carried out, the Court observed that the measure
had not been based on a judicial decision but had been carried out in accordance with the procedure
for issuing formal notice under section 9 of the Law of 5 July 2000. The decision to use that
procedure had entailed a number of consequences.

Firstly, in view of the short time between the issuing of the prefect’s order, its service, and the
eviction itself, none of the measures advocated in the 2012 circular had been implemented. While
the Government argued that there had been no obligation to rehouse the applicants since they had
possessed caravans, the Court noted, firstly, that the applicants had alleged that all but one of their
caravans had been seized, and secondly, that the measures listed in the circular (assessment of the
situation of the families and individuals concerned, as well as assistance with schooling, healthcare
and housing) were applicable whether or not the persons concerned had caravans. Hence, no
account had been taken of the repercussions of the eviction or the applicants’ particular
circumstances.

Secondly, because the procedure for giving formal notice had been applied, the remedy provided for
in domestic law had come into play after the decision had been taken by the administrative
authorities, whereas in other cases the courts assessed the proportionality of the measure before
taking their decision. None of the remedies used by the applicants had enabled them subsequently
to submit their arguments to a judicial body.

As a result, the first judicial body to rule on the proportionality of the interference had been the
Administrative Court of Appeal in October 2014, 18 months after the evictions from the camp.
The Court reaffirmed that the fact that the applicants belonged to an underprivileged social group,
and their particular needs on that account, had to be taken into consideration in the proportionality
assessment that the national authorities were under a duty to undertake, not only when considering
approaches to dealing with the unlawful settlement but also, if eviction was necessary, when
deciding on its timing and manner and, if possible, arrangements for alternative accommodation. As
part of the procedural safeguards of Article 8, any person subjected to interference with his or her
rights under that provision should be able to have the proportionality of the measure reviewed by
an independent tribunal in the light of the relevant principles under Article 8.

As this had not been the situation in the present case, the Court held that the manner of the
applicants’ eviction had been in breach of Article 8 of the Convention.

Article 13 read in conjunction with Articles 3 and 8

The Court noted that domestic law provided for a specific remedy with suspensive effect under
section 9 of the Law of 5 July 2000.

While that remedy appeared effective, the Court observed that in the applicants’ case the judge had
not examined the action on the merits but had declared it inadmissible on the grounds that Mr Hirtu
had not established that he had been resident on the site. The Court also observed that the urgent
application for protection of a fundamental freedom lodged by three other applicants had also been
declared inadmissible on the grounds of the existence of the specific remedy provided for by section
9 of the Law of 5 July 2000.

Accordingly, the Court found that there had been no judicial examination at first instance of the
applicants’ arguments under Articles 3 and 8 of the Convention, either in proceedings on the merits
or under the urgent procedure, in breach of the requirements of Article 13.

There had therefore been a violation of Article 13.

Just satisfaction (Article 41)

The Court held that France was to pay 7,000 euros (EUR) each to the individual applicants and jointly
to Imbrea and Virginia Istfan, in respect of non-pecuniary damage, and EUR 7,920 to the applicants
jointly, plus any tax that might be chargeable to them, in respect of costs and expenses.


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