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Rights Archives: Right to adequate housing

Madeli Fakudze v. Commissioner of Police and Ors (8/2002)

Year: 2002 (Date of Decision: 1 June, 2002)

Forum, Country: Supreme Court; Swaziland

Standards, Rights: Rule of law; Right to adequate housing

Summary Background: Madeli Fakudze (the respondent in this appeal) was one of four individuals served with a removal order in August 2000 by the Minister of Home Affairs. The respondent claimed that security forces had wrongfully evicted him after he was granted an injunction from the High Court to stop his eviction. Upon returning to his home, the respondent was confronted by police officers and told they were acting upon a verbal order from the Commissioner of Police to eject the respondent immediately, in contravention of the court order. The High Court then proceeded to overturn the injunction it had granted, purporting to restore the status quo ante. The police officers claimed they were fully aware of the court orders issued at the time, but that issues of “national security” had prevented them from enforcing these orders and that threats to national security overrode all other interests, whether they rise out of a court order or not.

Holding: The Court rejected the defence of national security, deeming it a “last gasp attempt” to raise a barrier to the enforcement of the court order [p. 8]. The Court highlighted that an officer from the Attorney-General had made no objection or raised any security concerns at the initial decision of the Court of Appeal to permit the evictees to return to their homes. The Court denounced the police officer’s failure to disclose any information to the Court on which a reasonable apprehension could be based that a threat to national security might exist, and thus had acted in contempt of the court order with no reasonable excuse for deviation [p. 8].

The Court reaffirmed the injunction of Matsebula J, stating “anyone wilfully refusing or failing to comply with an order of this Court exposes himself to the imposition of a penalty…to compel performance in compliance with the court order” [p. 9].

The Court acknowledged that contempt of court is a criminal offence, yet as per S v. Beyers 1968, it held that in cases of civil contempt as in this case, it is left to the aggrieved party in the proceeding to seek the relief. It sentenced one police officer to a term of imprisonment [p. 10].

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Amparo No. 631/2012 (Independencia Aqueduct)

Year: 2013 (Date of Decision: 8 May, 2013)

Forum, Country: Supreme Court; Mexico

Standards, Rights: Right to adequate housing; Rights to water and sanitation; Right to free, prior and informed consent; Right to an adequate standard of living; Indigenous people

Summary Background: The Mexican Government approved a large-scale water supply and construction project involving the transmission of around 60 million cubic metres of water from the “El Novillo” dam to the Sonora river basin to supply the city of Hermosillo. The Yaqui tribe (the initial appellants) claimed the project was in violation of their rights to territory, consultation and to a safe environment and sought a writ for the protection of their constitutional rights (an amparo). The group argued the river is a source of both economic and cultural sustenance and that they were, by law, holders of 50 per cent of the water, as provided for in a presidential decree.

The Fourth District Court found in favour of the Yaqui tribe. SEMARNAT (the federal environmental agency) appealed to the Supreme Court of Justice.

Holding: The Supreme Court upheld the Fourth District Court’s decision in favour of the Yaqui tribe and maintained that the State of Mexico had erred in failing to inform or consult the tribe at first instance [p. 88]. Upon request for further clarification from the appellants, the Supreme Court issued a decision expressly outlining the conditions to be met by the State; namely, the project was to be halted until proper consultation was effected between the State and the Yaqui tribe [p. 86].

The Supreme Court ordered that such consultation be prompted in accordance with the appropriate tribe customs, that it outline any irreversible damage caused by the project, and that a finding of any violations may result in the project being stopped [p. 83].

Additional Comments: Since this decision was issued, it has been noted that enforcement of the judgement has been poor and consultations with the Yaqui tribe are yet to take place. This was the first time the Inter-American standards on the right to consultation with indigenous communities was acknowledged in Mexico.

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Cases No. 19003-2011-00638-Of.1a; No. 19003-2011-00639-Of.2a; No. 19003- 2011-00637-Of.3a; No. 19003-2011- 00641-Of.1

Year: 2013 (Date of Decisions (in the order cited above): 3 April 2013; 12 April 2013; 10 May 2013; 31 May 2013)

Forum, Country: Children’s and Juvenile Court; Guatemala

Standards, Rights: Best interests of the child; Core content; Right to adequate food; Right to life; Right to an adequate standard of living; Right to health; Right to housing; Children

Summary Background: The poverty level in the municipality of Camotán in the Guatemalan Department of Chiquimula has chronically been very high and was worsened in 2001 and 2002 as a result of a food crisis, caused by a drought and the effects of a drop in the international price of coffee on the rural economy. The production of coffee was the single most important base for subsistence of the local population. The food crisis generated severe malnutrition and increased child mortality, especially affecting children under 5. Despite the existence of some local government policies to eradicate the famine in the region, the overall situation remained unchanged, which left children of the municipality vulnerable. In November 2011, this led the parents of the girls, Dina Marilú, Mavélita Lucila Interiano Amador and Mayra Amador Raymundo; and the boys Brayan René, Espino Ramírez and Leonel Amador García, supported by the civil society Guatemala Without Hunger Campaign, to file a case in accordance with article 104 of the Law for Integral Protection of Children and Adolescents, which seeks to examine and settle complaints arising from situations that threaten or violate the rights of children and adolescents. The legal proceedings initiated against the State of Guatemala alleged that the State violated through omission the right to food, the rights to life, health, education, and an adequate standard of living and housing, of the children suffering from acute malnutrition in the municipality.

Holding: The Department of Zacapa Court for the Protection of Children and Adolescents and for adolescents in conflict with the criminal law based its legal analysis on national and international law. In particular, the analysis focused on the principle of the best interests of the child as a person with full legal personality, and on the obligation of the State to implement measures and mechanisms to ensure the effective fulfilment of ESC rights.

The Court contemplated the facts in the light of the State’s duties under international instruments, including the ICESCR and the ICRC, to which the State is a party and that guarantee the right to be free from hunger, and the right to adequate food as a fundamental basis for the enjoyment of other human rights [para. C, Análisis de las disposiciones legales correspondientes].

Based on the facts and arguments described above, the Court for Children and Adolescents and the Court for Adolescents in Conflict with Criminal Law of the Department of Zacapa found a violation of the rights to food, life, an adequate standard of living, health and housing of the children parties to the cases and the responsibility of the State of Guatemala for such violations through omission, as it failed to provide effective programs, policies, actions and measures to address the children’s poor health caused by the chronic and acute undernourishment and the lack of adequate food [para. C, Parte resolutiva, I].

In addition, the Court ordered the enforcement of various measures for a comprehensive reparation for the physical, social and psychological damages suffered by the children. These short and longer-term measures included the implementation of policies that guarantee the enjoyment of the right to food, health and adequate housing for the whole family. In particular, the Ministry of Agriculture, Livestock, and Food must deliver food aid to the families of the affected children; and provide seeds and necessary technical support to allow the families to grow adequate food.

In addition, the Court ordered the implementation of various programs such as in the area of health, psychological care and education, which shall enable the development of children in their family environment [para. C, Parte resolutiva, II]

Additional Comments: The expert opinions and reports especially from medical specialists working on child malnutrition, as well as the active support of civil society organizations and a broader social mobilization played a determining role in achieving the decision based on international human rights law standards.

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City of Johannesburg Metropolitan Municipality v. Blue Moonlight Properties 39 (Pty) Ltd and Another, CCT 37/11 [2011] ZACC 33

Year: 2011 (Date of Decision: 1 December, 2011)

Forum, Country: Constitutional Court; South Africa

Standards, Rights: Reasonableness; Right to adequate housing

Summary Background: The case raised the issue of occupiers of 7 Saratoga Avenue – a community of 86 poor people living in a disused industrial property in Berea, Johannesburg. In 2006, they were sued for eviction by the owner of the property. The question submitted for the decision of the court was whether the occupiers must be evicted to allow the owner to exercise their rights regarding the property and, if so, whether their eviction gave rise to the obligation of the City to provide them with accommodation, even if they were evicted from a private estate and not from public land. In the case, the question of the resources of the City was also raised.

Holding: The Court accordingly upheld the order of the Supreme Court of Appeal [SCA] by ordering the eviction of the occupiers 14 days after the City was ordered to provide those occupiers who were in need with temporary accommodation. This was to ensure that they would not be rendered homeless because of the eviction. The Court found that the City had a “duty to plan and budget proactively for situations like that of the Occupiers” [para. 67] and that its lack of resources was the product of its incorrect understanding of the relevant legislation. Furthermore, the Court upheld the finding of the SCA that the City was not able to show that it was incapable of meeting the needs of the Occupiers. The Court further stated that “[t]he City provided information relating specifically to its housing budget, but did not provide information relating to its budget situation in general. We do not know exactly what the City’s overall financial position is. This Court’s determination of the reasonableness of measures within available resources cannot be restricted by budgetary and other decisions that may well have resulted from a mistaken understanding of constitutional or statutory obligations. In other words, it is not good enough for the City to state that it has not budgeted for something, if it should indeed have planned and budgeted for it in the fulfilment of its obligations” [para. 74].

Additional Comments: The Occupiers submitted that ‘it would not be just and equitable to grant an eviction order, if the order would result in homelessness’ [para. 32]. As for the City, it contended that the eviction was sought at the instance of the owner of the property, and noted that it cannot be “held responsible for providing accommodation to all people who are evicted by private landowners” [para. 32].

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European Roma Rights Centre v. Portugal (Complaint No. 61/2010)

Year: 2011 (Date of Decision: 30 June, 2011)

Forum, Country: European Committee of Social Rights; Portugal

Standards, Rights: Non-discrimination and equal protection of the law; Right to adequate housing; Ethnic minorities

Summary Background: The complaint submitted by the European Roma Rights Centre (the “ERRC”) alleged that a range of housing related injustices suffered by the Roma community in Portugal violated rights protected under the Revised European Social Charter including the right of the family to social, legal and economic protection (article 16), the right to protection against poverty and social exclusion (article 30), the right to housing (article 31), alone or in conjunction with the right to non-discrimination (article E).

Holding: In examining the case, the Committee took particular note of three issues: the precarious and difficult housing conditions for a large part of the Roma community; the high number of Roma living in segregated environs; and, the inadequacy of rehousing programmes for the Roma community [para. 15].

In its decision, the Committee addressed the need to implement integrated housing policies for the Roma in a non-discriminatory manner, underscoring that one of the primary purposes of the Charter is to strengthen solidarity and promote social inclusion [para. 18]. The Committee clearly stated that both direct and indirect discrimination (including failing to take account of relevant differences and failing to take adequate steps to ensure accessible rights) are prohibited [para. 19].

The Committee further observed that the disproportionately high percentage of Roma living in poor housing conditions triggered a positive obligation of the authorities to take this into account and respond accordingly [para. 30]. It quoted the ECHR in noting that, as a vulnerable minority, the Roma required specific protection measures.

In addition, the substandard housing conditions of the Roma [paras. 32-35, 38] prompted the Court to affirm that the right to housing includes a right to fresh water [para. 36]; adequate space, protection from harsh weather conditions and other threats to health as well as a dwelling that is structurally secure [para. 37]; a location which allows access to public services and other social facilities [para. 41]; and a residence that is culturally suited [para. 49]. The Committee placed the issue of location within the broader issue of segregation and declared that States must be vigilant in implementing housing policies so as to prevent spatial or social segregation of ethnic minorities or immigrants [para. 41].

In light of its findings, the Committee concluded that there were violations of articles 16, 30 and 31 of the Charter in conjunction with the right to non-discrimination.

Additional Comments: This case examines the State’s obligation to respect, protect and fulfil the human right to housing.

Link to Full Case: http://www.escr- gal%20%28decision%29.pdf

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International Centre for the Legal Protection of Human Rights (INTERIGHTS) v. Greece Complaint No. 49/2008

Year: 2009 (Date of Decision: 11 December, 2009)

Forum, Country: European Committee of Social Rights; Greece

Standards, Rights: Non-discrimination and equal protection of the law; Right to adequate housing; Ethnic minorities

Summary Background: A complaint was submitted by the International Center for the Protection of Human Rights (INTERIGHTS), alleging that the Roma community in Greece face violations of their housing rights as well as suffer discrimination in access to housing. The applicants considered this to be in breach of article

With a view to ensuring the necessary conditions for the full development of the family, which is a fundamental unit of society, the Parties undertake to promote the economic, legal and social protection of family life by such means as social and family benefits, fiscal arrangements, provision of family housing, benefits for the newly married and other appropriate means.
of the revised European Social Charter, which covers the right of a family to social, legal and economic protection.

Holding: The Committee held that Greece had failed to provide access to adequate housing to the Roma community despite a prior decision of the Committee that mandated progress in this respect [paras 35-37].

While the Committee recognized certain positive steps taken by the Greek government in ameliorating the living conditions of the Roma, including the development of non-discrimination legislation [para. 38], it emphasized that merely ensuring identical treatment as a means of protection against any discrimination was not sufficient. The State was required to respond to the unique circumstances of the Roma with discernment and take appropriate positive measures in order to achieve meaningful equality [para. 40].

The Committee thereafter examined the issue of forced evictions. Even when communities unlawfully occupy land, certain procedural guarantees must be complied with during the eviction process and these include proper justification for the evictions, adequate and reasonable notice, process conditions that respect the dignity of the affected, including consultations with the evictees prior to eviction, alternative accommodation and accessibility of legal remedies. However, the State did not properly respect procedural guarantees. In light of all the above, the Committee concluded that the State was in violation of the right to housing as protected within the right of the family to social, legal and economic protection under the Charter [paras 55-70].

Additional Comments: The case examines the duty of the State to respect, protect and fulfil the Right to Housing.

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