European Committee of Social Rights
Comité européen des Droits sociaux
DECISION
ON THE MERITS
Adoption: 1 December 2015
Notification: 15 January 2016
Publication: 16 May 2016
European Roma Rights Centre (ERRC) v. Ireland
Complaint No. 100/2013
The European Committee of Social Rights, committee of independent experts (“the Committee”) established under Article 25 of the European Social Charter, during its 282nd session attended by:
Giuseppe PALMISANO, President
Monika SCHLACHTER, Vice-President
Petros STANGOS, Vice-President
Lauri LEPPIK, General Rapporteur
Karin LUKAS
Eliane CHEMLA
József HAJDU
Marcin WUJCZYK
Raul CANOSA USERA
Marit FROGNER
François VANDAMME
Assisted by Régis Brillat, Executive Secretary
Having deliberated on 12 and 13 October and 1 December 2015,
On the basis of the report presented by Eliane CHEMLA,
Delivers the following decision adopted on this last date:
PROCEDURE
1. The complaint submitted by the European Roma Rights Centre (“the ERRC”) was registered on 16 April 2013. It was transmitted to the Government of Ireland (“the Government”) on 24 April 2013.
2. The ERRC alleges violations of articles 16, 17 and 30 of the Revised European Social Charter (“the Charter”) read alone or in conjunction with Article E as regards the housing conditions and evictions of Travellers and, regarding the social, legal and economic protection of child Travellers.
3. In accordance with Rule 29§1 of the Rules, on 22 March 2013, the President of the Committee asked the Government to make, before 13 June 2013, written observations on admissibility of the complaint.
4. The Government’s observations on admissibility were registered on 10 June 2013.
5. On 21 October 2013 the Committee declared the complaint admissible. On 29 October 2013 the admissibility decision was communicated to the parties and the Government was simultaneously invited to make written submissions on the merits of the complaint by the time limit of 7 January 2014.
6. On 30 October 2013, referring to Article 7§1 of the Protocol providing for a system of collective complaints (“the Protocol”), the Committee invited the States Parties to the Protocol, and the States having made a declaration in accordance with Article D§2 of the Charter, to transmit to it any observations they may wish to make on the merits of the complaint before 7 January 2014.
7. No such observations were received.
8. On 18 November the Government requested an extension of the deadline for the submission of the merits. The President extended this deadline to 14 February 2014.
9. The Government’s submissions on the merits were registered on 14 February 2014.
10. The deadline set for the ERRC’s response to the Government’s submissions on the merits was 7 May 2014. At the request of the ERRC the President of the Committee granted an extension of the time limit until 30 June 2014. The response was registered on 30 June 2014.
11. The Government was invited to respond to these submissions by 30 September 2014. At the request of the Government the President of the Committee extended the deadline to 24 October 2014 and then to 14 November 2014. The response was registered on 14 November 2014.
12. Additional observations on the merits were submitted by the Government and were registered on 16 April 2015.
SUBMISSIONS OF THE PARTIES
A – The complainant organisation
13. The ERRC alleges that Ireland has not ensured the satisfactory application of the Charter, with respect to accommodation for Travellers[1] It submits that certain legislative provisions on evictions as well as the de facto situation violates Articles 16 and 30 of the Charter either alone or in conjunction with Article E. Furthermore, it complains that the amount and standard of housing and accommodation provided to Travellers is insufficient and submits that Ireland has failed to create and implement a sufficiently strong legislative framework for ensuring the respect of the housing and accommodation rights of Travellers. Lastly it alleges that the above-mentioned violations further give rise to a breach of the education rights of Traveller children as guaranteed by Article 17 of the Charter, either alone or in conjunction with Article E of the Charter.
B – The respondent Government
14. The Government rejects the complainant organisation’s allegations in their entirety and asks the Committee to declare the complaint unfounded in all respects.
RELEVANT DOMESTIC LAW
Housing (Travellers Accommodation) Act 1998 (as amended)
15. Sections 6, 7 and 10 provide that:
Section 6
“(1) A relevant housing authority shall, for the purposes of preparing a programme under section 7, and at such other times as the Minister may by direction specify, in respect of the functional area concerned, make an assessment of the accommodation needs of travellers who are assessed under section 20 of the Housing (Miscellaneous Provisions) Act 2009 as being qualified for social housing support (within the meaning of that Act), including the need for sites.
…….
…
(4) Without prejudice to the generality of subsection (1), a relevant housing authority, in making an assessment shall have regard to-
(a) the estimate of travellers referred to in subsection (5),
a) any summary of social housing assessments prepared under section 21 of the Housing (Miscellaneous Provisions) Act 2009,”.
b) the need for sites with limited facilities referred to in section 13 of the Act of 1988 (as amended by this Act) in relation to the annual patterns of movement of travellers, otherwise than as their normal place of residence, and
(c) the views, if any, of the local consultative committee concerned
(5) A relevant housing authority shall make an estimate of the number of traveller families and households for whom accommodation will be required within the functional area for a period which the Minister may by direction specify.”
Section 7
“(1) A relevant housing authority shall adopt as respects their functional area an accommodation programme not later than the date specified by the Minister, or within 21 days of that date as provided under section 13, and shall specify in that accommodation programme the accommodation needs of travellers and the provision of accommodation required to address those needs for the period specified in section 10(1).”
Section 10
“An accommodation programme shall be prepared by a relevant housing authority in respect of a 5 year period beginning on a date as the Minister may by direction specify and be in such form and contain such information as the Minister may direct and thereafter shall be prepared in respect of each succeeding period of 5 years or each such shorter period as the Minister may direct, and shall be adopted by the relevant housing authority by such date as the Minister may direct or in accordance with section 17.
(1) In preparing an accommodation programme, or a replacement of it, the relevant housing authority shall-
a) include the most recent assessment made by that relevant housing authority under section 6
(b) include such particulars as the Minister may direct in relation to travellers and contained in the most recent summary of social housing assessments prepared by a housing authority under section 21 (c) of the Housing (Miscellaneous Provisions) Act 2009 or where the relevant housing authority is preparing an accommodation programme for the first time, such particulars concerning the needs of travellers for accommodation in sites as may be available to the relevant housing authority or as may be acquired by them as the Minister may direct,
(c) include a statement of the policy of the relevant housing authority concerned in relation to meeting the accommodation needs of travellers, including the accommodation needs referred to in paragraphs (a) and (b),
(d) specify the strategy of the relevant housing authority concerned for securing the implementation of the accommodation programme,
(e) include measures for implementation by the relevant housing authority concerned or, as the case may be, any other housing authority in relation to--
(i) the provision of the range of accommodation required to meet accommodation needs which have been identified,
(ii) the provision of assistance to travellers to provide accommodation for their own use,
(ill) the provision of assistance to a body standing approved under section 6 of the Act of 1992 in respect of the provision or management of accommodation for travellers, and
(iv) the proper management, including assistance towards the management, of such accommodation for travellers, and
(f) include any other matters as may be specified in directions issued from time to time by the Minister.”
Section 19C, Criminal Justice (Public Order) Act 1994 (as amended)
16. Section 19C provides that:
“(1) A person, without the duly given consent of the owner, shall not—
(a) enter and occupy any land, or
(b) bring onto or place on any land any object,
where such entry or occupation or the bringing onto or placing on the land of such object is likely to—
(i) substantially damage the land,
(ii) substantially and prejudicially affect any amenity in respect of the land,
(iii) prevent persons entitled to use the land or any amenity in respect of the land from making reasonable use of the land or amenity,
(iv) otherwise render the land or any amenity in respect of the land, or the lawful use of the land or any amenity in respect of the land, unsanitary or unsafe,
(v) substantially interfere with the land, any amenity in respect of the land, the lawful use of the land or any amenity in respect of the land.
(2) A person who contravenes subsection (1) shall be guilty of an offence.
(3) Where a member of the Garda Síochána [police officer] has reason to believe that a person is committing or has committed an offence under subsection (1) the member—
(a) may demand of the person his or her name and address,
(b) may direct the person to leave the land concerned and to remove from the land any object that belongs to the person or that is under his or her control, and
(c) shall inform the person of the nature of the offence in respect of which it is suspected that person has been involved and the statutory consequences of failing to comply with a demand or direction under this subsection.”
Housing (Miscellaneous Provisions) Act 1992 (as amended)
17. Section 10 provides that:
“(1) Where, without lawful authority, a person erects, places, occupies or otherwise retains a temporary dwelling in a public place and such temporary dwelling—
(a) is within a five mile radius of any site provided, managed or controlled by a housing authority under section 13 of the Act of 1988 (as amended by the Housing (Traveller Accommodation) Act, 1998), or any site provided or managed under section 6 and the temporary dwelling concerned could, in the opinion of the housing authority within whose functional area such temporary dwelling has been erected, placed, occupied or otherwise retained, appropriately be accommodated on that site, the housing authority may serve a notice on that person requiring that person, within a specified period, to remove the said temporary dwelling to the said site,
b) is, in the opinion of the housing authority concerned—
(i) unfit for human habitation due to lack or inadequacy of water supply, sanitation or other essential services, or
(ii) likely to obstruct or interfere with the use of public or private amenities or facilities, or the maintenance of such amenities or facilities, or
(iii) likely to constitute or constitutes a significant risk to personal health, public health or safety,
and such temporary dwelling could, in the opinion of the housing authority within whose functional area such temporary dwelling has been erected, placed, occupied or otherwise retained, appropriately be accommodated on any site provided, managed or controlled under section 13 of the Act of 1988 (as amended by the Housing (Traveller Accommodation) Act, 1998), or any site provided or managed under section 6, the housing authority may serve a notice on that person requiring that person, within a specified period, to remove such temporary dwelling to the said site,
(c) is within a one mile radius of any site provided, managed or controlled by a housing authority under section 13 of the Act of 1988 (as amended by the Housing (Traveller Accommodation) Act, 1998), or any other traveller accommodation provided, managed or controlled by a housing authority under the Housing Acts, 1966 to 1998, or any traveller housing accommodation provided or managed under section 6 and the housing authority within whose functional area such temporary dwelling has been erected, placed, occupied or otherwise retained is of the opinion that, whether by reason of being one of a number of such temporary dwellings or otherwise, such temporary dwelling—
(i) is causing a nuisance or obstruction to the occupants of that site or traveller accommodation or to the occupants of any other dwelling or dwellings within a one mile radius of that site or that traveller accommodation, or
(ii) creates a risk to the quality of water, sanitary, electrical or other services associated with that site or traveller accommodation or any other dwelling or dwellings within a one mile radius of that site or traveller accommodation, or
(iii) obstructs or interferes with the use or enjoyment by any person of any public or private amenity or any public or private facility or the maintenance of any such amenity or facility, within a one mile radius of that site or traveller accommodation,
the housing authority concerned may serve notice on that person requiring that person, within a specified period, to remove the said temporary dwelling
but where the site specified in a notice under paragraph (a) or paragraph (b) is a site provided by a housing authority other than the housing authority serving such notice or a body standing approved for the purposes of section 6, such notice shall not be served until the consent of the housing authority or body concerned to such service has been obtained.”
Roads Act 1993
18. Section 69 provides that:
“(1)(a) Any person who without lawful authority erects, places or retains a temporary dwelling on a national road, motorway, busway or protected road shall be guilty of an offence.
(b) Any person who without lawful authority or the consent of a road authority erects, places or retains a temporary dwelling on any other prescribed road or prescribed class, subclass or type of road shall be guilty of an offence.
(c) A consent under paragraph (b) may be given by the road authority subject to such conditions, restrictions or requirements as it thinks fit and any person who fails to comply with such conditions, restrictions or requirements shall be guilty of an offence.
(2) An authorised person may remove a temporary dwelling from a national road, motorway, busway, protected road or any other prescribed road or prescribed class, subclass or type of road.
(3) An authorised person may store, or procure the storage of, a temporary dwelling removed by him under subsection (2).
(4) Where the name and address of the owner of a temporary dwelling removed and stored under this section can be ascertained by reasonable inquiry, the road authority concerned or the Commissioner shall serve a notice upon the owner informing him of the removal and storage and of the address of the place where the temporary dwelling may be claimed and recovered, requiring him to claim and recover it within one month of the date of the service of the notice and informing him of the statutory consequences of his failure to do so.
(5) A temporary dwelling removed and stored under this section shall be given to a person claiming the temporary dwelling if, but only if, he makes a declaration in writing that he is the owner of the temporary dwelling or is authorised by its owner to claim it and, at the discretion of the road authority concerned or the Commissioner, pays the amount of the expenditure reasonably incurred in removing and storing the temporary dwelling.
(6) The road authority concerned or the Commissioner may dispose, or procure the disposal, of a temporary dwelling removed and stored under this section if—
(a) the owner of the temporary dwelling fails to claim it and remove it from the place where it is stored within one month of the date on which a notice under subsection (4) was served on him, or
(b) the name and address of the owner of the temporary dwelling cannot be ascertained by reasonable inquiry.
(7) A temporary dwelling shall not be disposed of under this section within six weeks of the date of its removal under this section.
(8) The provisions of this section are without prejudice to the functions of a public authority under any other enactment.
(9) In this section—
“authorised person” means—
(a) a person authorised in writing by a road authority for the purposes of this section;
(b) a member of the Garda Síochána;
“temporary dwelling” means any tent, caravan, mobile home, vehicle or other structure or thing (whether on wheels or not) which is capable of being moved from one place to another (whether by towing, transport on a vehicle or trailer, or otherwise), and—
(a) is used for human habitation, either permanently or from time to time, or
(b) was designed, constructed or adapted for such use,
but does not include any such temporary dwelling—
(i) used by a State authority, road authority, local authority or a statutory undertaker during the course of works on, in or under a national road, motorway, busway, protected road, or any other prescribed road or prescribed class, subclass or type of road, or
(ii) used in connection with a fire or other emergency”
Planning and Development Act 2000
19. Section 46 provides that:
“(1) If a planning authority decides that, in exceptional circumstances-
(a) any structure should be demolished, removed, altered or replaced,
(b) any use should be discontinued, or
(c) any conditions should be imposed on the continuance of a use,
the planning authority may serve a notice on the owner and on the occupier of the structure or land concerned and on any other person who, in its opinion, will be affected by the notice.
(2) subsection (1) ‘shall not apply to any unauthorised development unless the notice under this section is served after seven years from the commencement of the unauthorised development.”
20. Section 160 provides that:
“(1) Where an unauthorised development has been, is being or is likely to be carried out or continued, the High Court or the Circuit Court may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order require any person to do or not to do, or to cease to do, as the case may be, anything that the Court considers necessary and specifies in the order to ensure, as appropriate, the following:
(a) that the unauthorised development is not carried out or continued;
(b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;
(c) that any development is carried out in conformity with the permission pertaining to that development or any condition to which the permission is subject.
(2) In making an order under subsection (1), where appropriate, the Court may order the carrying out of any works, including the restoration, reconstruction, removal, demolition or alteration of any structure or other feature.”
Local Government (Sanitary Services) Act 1948
21. Section 31 provides that :
“(1) A sanitary authority may by order prohibit the erection or retention of temporary dwellings on any land or water in their sanitary district if they are of opinion that such erection or retention would be prejudicial to public health or the amenities of the locality or would interfere to an unreasonable extent with traffic on any road.
(2) A prohibition under this section may relate either to specified land or water or all land or water of a specified class and, in particular, may relate to all land or water within a specified distance of the centre line of any road or a specified road.
(3) Where a person is aggrieved by an order under this section—
(a) such person may, within fourteen days after a copy of the order is published pursuant to subsection (9) of this section, send to the Minister an application in writing (which shall include a statement of the reasons therefor) for the annulment of the order,
(b) the Minister, after consideration of the application and such representations in regard thereto as the sanitary authority concerned may think fit to make, may either annul the order, confirm the order without variation or confirm the order with variations by way of reduction of the land or water to which it relates.
(4) A person who erects or retains a temporary dwelling in contravention of an order in force under this section shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding twenty-five pounds and, in the case of a continuing offence, to a further fine not exceeding five pounds for each day on which the offence is continued.
(5) Where a person is convicted on a second or subsequent occasion of an offence under this section in relation to the same temporary dwelling, the Court may, in addition to or in lieu of imposing a fine, order the forfeiture of the temporary dwelling to the sanitary authority concerned and thereupon that authority may take possession of the temporary dwelling and dispose of it by sale, destruction or otherwise as they think fit.
(6) A prohibition under this section may be made in respect of the retention in coastal waters adjoining a sanitary district of vessels which are used primarily for human habitation as if the coastal waters were inland waters in the sanitary district.
(7) Where any coastal waters adjoin two or more sanitary districts, the Minister may by order provide that, for the purposes of subsection (6) of this section, the whole or a specified part of the coastal waters shall be regarded as adjoining any one of the sanitary districts and no other, and the said subsection (6) shall have effect accordingly.
(8) An order under this section shall come into force—
(a) if no application is made for the annulment of the order—thirty days after a copy of the order is published pursuant to subsection (9) of this section, and
(b) if an application is made for the annulment of the order and the order is not annulled thereon—fourteen days after the determination of the application.
(9) Where a sanitary authority make an order under this section, they shall, within fourteen days after the order is made, cause to be published, in a daily newspaper circulating in their sanitary district, a copy of the order and a statement of the right conferred by this section to apply for the annulment of the order.
(10) Where an order under this section has come into force, the sanitary authority who made the order shall, within fourteen days after the order has come into force, cause to be published, in a daily newspaper circulating in their sanitary district, a copy of the order (as made by the sanitary authority or as confirmed by the Minister, whichever is appropriate) and a statement that it has come into force.”
Public Health (Ireland) Act 1878, as amended by the Environmental Protection Agency Act 1992
22. Sections 107, 110 and 111 provide that:
Section 107
“For the purposes of this Act:
1. Any premises in such a state as to be a nuisance or injurious to health;
2. Any pool ditch gutter watercourse privy urinal cesspool drain or ash pit so foul or in such a state as to be a nuisance or injurious to health;
3. Any animal so kept as to be a nuisance or injurious to health;
4. Any accumulation or deposit which is a nuisance or injurious to health;
5. Any house or part of a house so overcrowded as to be dangerous or injurious to the health of the inmates, whether or not members of the same family;
6. Any factory workshop or workplace not kept in a cleanly state, or not ventilated in such a manner as to render harmless as far as practicable any gases, vapours, dust, or other impurities generated in the course of the work carried on therein that are a nuisance or injurious to health, or so overcrowded while work is carried on as to be dangerous or injurious to the health of those employed therein;
7. Any fireplace or furnace which does not as far as practicable consume the smoke arising from the combustible used therein, and which is used for working engines by steam, or in any mill factory dyehouse brewery bakehouse or gaswork, or in any manufacturing or trade process whatsoever; and
8. Any chimney (not being the chimney of a private dwelling-house) sending forth black smoke in such quantity as to be a nuisance,
shall be deemed to be nuisances liable to be dealt with summarily in manner provided by this Act.“
Section 110:
“On the receipt of any information respecting the existence of a nuisance the sanitary authority shall, if satisfied of the existence of a nuisance, serve a notice on the person by whose act, default, or sufferance the nuisance arises or continues, or, if such person cannot be found, on the owner or occupier of the premises on which the nuisance arises, requiring him to abate the same within a time to be specified in the notice, and to execute such works and do such things as may be necessary for that purpose: Provided:
First. That where the nuisance arises from the want or defective construction of any structural convenience, or where there is no occupier of the premises, notice under this section shall be served on the owner:
Secondly. That where the person causing the nuisance cannot be found and it is clear that the nuisance does not arise or continue by the act default or sufferance of the owner or occupier of the premises, the sanitary authority may themselves abate the same without further order.”
Section 111:
“[i]f the person on whom a notice to abate a nuisance has been served makes default in complying with any of the requisitions thereof within the time specified, or if the nuisance, although abated since the service of the notice, is, in the opinion of the [district council], likely to recur on the same premises, the [district council] shall cause a complaint relating to such nuisance to be made before a justice, and such justice shall thereupon issue a summons requiring the person on whom the notice was served to appear before a court of summary jurisdiction.”
RELEVANT INTERNATIONAL MATERIALS
I – The Council of Europe
23. The European Convention on Human Rights 1950 (“the Convention”) includes the following provisions
Article 8 - Right to respect for private and family life
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
a) Relevant Judgments of the European Court of Human Rights
- Winterstein and Others v. France, Application No 27013/07, judgment of 17 October 2013
24. The Court stated that:
“159….The Court would emphasise in this context that numerous international instruments, some of which have been adopted within the Council of Europe, emphasise the necessity, in the event of the forced eviction of Roma and travellers, of providing them with alternative housing, except in cases of force majeure: see Recommendation (2005)4 of the Committee of Ministers, Resolution 1740(2010) of the Parliamentary Assembly and the Position Paper of the Commissioner for Human Rights dated 15 September 2010 ... and, in more general terms, General Comment no. 7 of the United Nations Committee on Economic, Social and Cultural Rights ...
160. In addition, it is necessary, as the Government have accepted, to take into account the fact that the applicants belong to a vulnerable minority. The Court would refer to its previous finding that the vulnerable position of Gypsies and travellers as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in reaching decisions in particular cases (see Connors, cited above, § 84; Chapman, cited above, § 96; and Stenegry and Adam, cited above). It has also stated in Yordanova and Others (cited above, §§ 129 and 133) that, in cases such as the present one, the applicants’ specificity as an underprivileged social group and their resulting needs must be taken into account in the proportionality assessment that the national authorities are under a duty to undertake, not only when considering approaches to dealing with their unlawful settlement but also, if their removal is necessary, when deciding on its timing and manner and, if possible, arrangements for alternative shelter.”
- Connors v. the United Kingdom, Application No. 66746/01, judgment of 27 May 2004
25. The Court stated that:
“85 The vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases (Buckley judgment cited above, pp. 1292-95, §§ 76, 80 and 84). To this extent, there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life (see Chapman, cited above, § 96 and the authorities cited, mutatis mutandis, therein)”.
b) Other materials
-Recommendation Rec(2005)4 of the Committee of Ministers to member states on improving the housing conditions of Roma and Travellers in Europe,
-Recommendation CM/Rec(2008)5 of the Committee of Ministers to member states on policies for Roma and/or Travellers in Europe:
II - The United Nations
26. The International Covenant on Economic, Social and Cultural Rights 16 December 1966; includes the following provision:
Article 11
“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 co-operation based on free consent.”
27. The United Nations Committee on Economic, Social and Cultural Rights made the following comments as to adequate housing and forced evictions:
General Comment 4
“8. (a) (…) 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. (…)
“18. (…) instances of forced eviction are prima facie incompatible with the requirements of the International Covenant on Economic, Social and Cultural Rights and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law.” (Doc E/1992/23: “The right to adequate housing”).
General Comment 7
“13. 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 the affected persons, with a view to avoiding, or at least minimizing, the need to use force.” (…)
“15. 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 rights recognized in both International Human Rights Covenants [the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights]. 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; (h) provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts.
16. 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.” (Doc. E/1998/22: “Forced evictions, and the right to adequate housing”)
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 16 OF THE CHARTER AND OF ARTICLE E IN CONJUNCTION WITH ARTICLE 16
28. Article 16 reads as follows:
Article 16 – The right of the family to social, legal and economic protection
Part I: “The family as a fundamental unit of society has the right to appropriate social, legal and economic protection to ensure its full development.”
Part II: “With a view to ensuring the necessary conditions for the full development of the family, which is a fundamental unit of society, the Contracting 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-ate means.”
29. Article E reads as follows:
Article E – Non-discrimination
“The enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status.”
First Part: Alleged violation due to failure to provide sufficient accommodation
A. Submissions of the parties
1. The complainant organisation
30. The ERRC states by way of background that according to the 2011 census the number of Traveller families was 29,573 although the Irish Traveller Movement (IMT) believes it is far higher in any event the figures in the 2011 census showed an increase by 32% from the 2006 data.
31. The ERRC argues that the Government has failed to provide sufficient accommodation for Travellers, in particular Traveller-specific accommodation – namely permanent halting sites, group housing and transient halting sites.
32. In 1995, the Government-appointed Task Force on the Travelling Community reported that there was inadequate accommodation for the 1085 Traveller households who resided on the roadside. Another 257 households were found to be living on temporary sites that lacked basic services such as toilets, electricity and
proper washing facilities. The Task Force recognised that the availability and adequacy of Traveller accommodation was central to all aspects of Traveller life in Ireland.
33. The Task Force recommended the provision of 3,100 units of additional Traveller accommodation by the year 2000. This was to include 2,200 halting site bays and transient bays and 900 units of standard housing and group housing. The Task Force Report also called for a network of transient halting sites, with electricity, running water, sewage disposal and refuse collection, across the country. In cases of unauthorised Traveller encampments, ‘local authorities should ……use the option of eviction only as a last resort.’
34. In 1998 the Housing (Traveller Accommodation) Act 1998 was adopted which required that every local housing authority had to adopt a five-year Traveller Accommodation Programme (TAP), which must include provision for transient sites. The programmes were to be fully operational by 2000 and implemented by 2004.
35. The range of accommodation had to include standard local authority housing, group housing, permanent caravan parks, transient halting sites and emergency provision. It also mandated that there should be provision ‘for the annual patterns of movement by Travellers’ (Section 10(3)(c)). The local housing authorities were obligated to ’take any reasonable steps as are necessary’ (Section 16(1)) to implement the accommodation programmes. However, there are no sanctions or penalties in the Act if the local authorities do not implement the accommodation programmes.
36. However the ERRC alleges that notwithstanding these targets, in 2011, the situation still fell far short of meeting these objectives. In 2011, according to the ERRC only four local authorities namely; Donegal, Westmeath, Leitrim, and Sligo have transient sites in operation in their functional area. None of these transient sites are operating as transient sites; instead they are being used for emergency accommodation. Further it states that of the need for 1,000 transient sites identified by the Task Force report of 1995 only 54 have been constructed. In the recent TAPs 2014-2018 few local authorities identified the need for transient sites or made a commitment to providing them.
37. The ERRC alleges that this failure to provide transient sites has a serious effect on nomadism, an important part of Traveller culture. The ERRC states that the number of Traveller families living in Standard Local Authority Housing has steadily increased over the 9-year period 2000-2009 from 2,110 to 3,300 families; this represents a rise of 56%, as the number of Traveller families in private housing, assisted by Local Authority (increase by 289% in the 9-year period 2000-2009 from 123 to 479), and in private rented accommodation (an increase of 555 in the period
2009 - 2011 this followed a greater than twelve-fold increase in the 7-year period 2002-2009, from 162 families to 2,003 families). This ERRC alleges demonstrates local authorities’ preference for offering Travellers private rented accommodation over Traveller-specific accommodation.
38. In response to the Government’s argument that very often Travellers leave Traveller specific accommodation, the ERRC argues that this is due to issues of site location, design and management, poor relations with local authorities as well as feuding and intimidation and personal circumstances (it cites the report of the Housing Agency and the National Traveller Accommodation Consultative Committee on “Why Travellers leave Traveller-specific accommodation “ KW Research Associates 2014). The report referred to also concludes that Travellers would generally prefer to live in Traveller specific accommodation but where their options were limited they would settle for private rented accommodation.
39. The ERRC further states that local authorities are steadily decreasing the provision of halting sites through the country – there has been a decrease of 132 families accommodated in halting sites in the three-year period 2006-2009.
40. Furthermore it maintains that there are 361 families living in unauthorised halting sites, in conditions that are often unsafe, overcrowded and in most cases lacking in the most basic of facilities, such as water, sanitary and electricity services.
41. In addition the ERRC alleges that there has been a marked increase in recent years in families sharing accommodation, 663 families in 2013. As regards the Caravan and Loans scheme referred to by the Government (see paragraph 48) the ERRC states that 4 local authorities have suspended or limited grants and loans under the scheme. The ERRC maintains that the Government has failed to provide Traveller specific accommodation in accordance with their own targets.
42. As regards funding for Traveller accommodation, the ERRC submits that the information submitted by the Government is misleading and alleges that the budget allocated for traveller accommodation has fallen from 40 million € in 2008 to 3 million € in 2014. Furthermore there is chronic under spending by local authorities. The ERRC maintains that this under spending is due to a lack of will including political will to provide Traveller specific accommodation
2. The respondent Government
43. The Government in response to the ERRC’s allegations argues that on a general level it has made measurable progress in improving the status and living conditions of Travellers and has invested significant portions of the public funds in order to achieve this goal. It states that it remains strongly committed to a policy of promoting Traveller culture, welfare and education. It provide details of measures taken to promote inter alia, Traveller culture as well as the legislation which explicitly protect Travellers such as the Equality Act 2004, Prohibition of Incitement to Hatred Act 1989, the Unfair Dismissals Acts, the Employment Equality Acts and the Equal Status Acts, all of which specifically identify Travellers by name as a group protected.
44. Furthermore it stated that whilst historically Travellers can be described as a nomadic group they are not today, the majority are settled or living in halting sites.
45. The Government argues that clear measureable progress has been made in the provision of traveller accommodation. In 1999, 1,207 families (25.2% of all Traveller families) were living on unauthorised sites. This figure has steadily declined over the years to: 939 in 2002; 601 in 2004; 44 594 in 2007; and, in 2010, 45 representing 5% of Traveller families. As of the 2013 count, this figure is at 361 families, representing 3.8% of all Traveller families. This 72% reduction has been achieved notwithstanding a doubling in Traveller families in the decade to 2010.
46. A total of 4,092 units of new or refurbished accommodation have been provided since the introduction of the Traveller Accommodation Programmed, In particular, a total of 2,027 units of Traveller-specific Accommodation were created or refurbished between 2000 and 2011.
47. The Government argues that the increase in the number of travelers in private rented accommodation is not due to any failure to provide traveller specific accommodation, on the contrary, it reflects reflecting Ireland's success in its efforts to improve the status of the Travelling Community in society via a host of legislative measures as, traditionally, few Travellers who wished to could gain access to private rented accommodation. Private rented accommodation has been the preference of a large number of Traveller families in recent years. This is documented according to the Government in the report cited by the ERRC (Why Travellers Leave Traveller-specific Accommodation see above paragraph 38).
48. Local Authorities also actively assist Travellers who wish so in the pursuit of a nomadic lifestyle through established loan and grant schemes, which help families to purchase caravans. Under the Caravan Loans and Grant scheme, which was
introduced in February 2000. A loan up to a maximum of €6,350 is available for the purchase of a new / second-hand caravan. There is also a grant element (calculated at 10% of the purchase price of the caravan, subject to a €640 maximum) is intended to further assist Travellers purchasing a caravan for the first time. The Government admits that certain local authorities have suspended the scheme but argues that this has been due to arrears in re payments.
49. Overall, the State allocated 353.63 million € for the provision of Traveller-specific Accommodation between 2002 and 2012. The Department of the Environment provides 100% capital funding for Traveller specific accommodation including permanent, temporary, emergency and transient halting sites, Group Housing Schemes for Travellers. The Government states that the 2014 budget allocation for capital works on Traveller accommodation is 3 million € however 3.5 million € has also been allocated for accommodation related supports for Travellers.
50. According to the Government the provision of a ring fenced funding stream, separate from, and additional to, the main social housing programme, for the provision and maintenance of Traveller specific accommodation is also clear evidence of positive discrimination in terms of housing policy. In addition, Travellers are also eligible for, and receive, accommodation under the Social Housing framework.
51. The Government does acknowledge that there has been a reduction in the budget for Traveller specific accommodation due to the financial crisis and there has been a level of under spending by local authorities of resources. However it argues that although it has not made its overall target of providing for all Travellers, it has made measurable progress and highlights that the failure to meet fully its target is due in part to the substantial increase in the number of Traveller families over the last 15 years. The Government also argues that progress has been hampered by other problems such as uneven distribution of demand for Traveller specific accommodation across local authorities, in many local authorities there are vacancies in sites while others have waiting lists. Research has been commissioned to ascertain why so much accommodation is vacant. Inflated land prices have also hampered land acquisition.
52. The Government states that the provision of halting site accommodation has declined in recent years in response to a decrease in demand, of 1824 Traveller families seeking accommodation in 2011 1789 applications stated that their needs could be met by local authority/voluntary accommodation, early figures for 2013 indicated that 2% of household on waiting lists require Traveller specific accommodation. Transient sites decline in demand for intended purpose-much disagreement at local level including views expressed by settled Traveller communities. 44% of those on unauthorized sites had not applied for any sort of accommodation.
B. Assessment of the Committee
53. The Committee firstly recalls the obligations stemming from Article 16 of the Charter regarding the right of families to housing as it applies to nomadic or semi nomadic groups such as Travellers.
54. The Committee emphasises that one of the underlying purposes of the social rights protected by the Charter is to express solidarity and promote social inclusion. It follows that States must respect difference and ensure that social arrangements are not such as would effectively lead to or reinforce social exclusion.
55. The imperative to avoid social exclusion, respect difference and not to discriminate applies to all groups of Travellers, nomadic and settled.
56. The right to housing permits the exercise of many other rights – both civil and political as well as economic, social and cultural. It is also of central importance to the family. In order satisfy Article 16 states must promote the provision of an adequate supply of housing for families, take the needs of families into account in housing policies and ensure that existing housing be of an adequate standard and include essential services (such as heating and electricity). The Committee has stated that adequate housing refers not only to a dwelling, which must not be sub-standard and must have essential amenities, but also to a dwelling of suitable size considering the composition of the family in residence. Furthermore the obligation to promote and provide housing extends to security from unlawful eviction (see below paragraphs 135-137).
57. The implementation of Article 16 as regards nomadic groups implies that adequate stopping places be provided, in this respect Article 16 contains similar obligations to Article 8 of the European Convention of Human Rights (European Roma Rights Center (ERRC) v. Greece, Complaint No. 15/2003, Decision on the merits of 8 December 2004, § 25)
58. The Committee recalls that the rights recognised in the Social Charter must take a concrete and effective, rather than purely theoretical, form (International Commission of Jurists v. Portugal, Complaint No. 1/1998, Decision on the merits of 9 September 1999, §32).
59. This means that, for the situation to be compatible with the treaty, states parties must:
a. adopt the necessary legal, financial and operational means of ensuring steady progress towards achieving the goals laid down by the Charter;
b. maintain meaningful statistics on needs, resources and results;
c. undertake regular reviews of the impact of the strategies adopted;
d. establish a timetable and not defer indefinitely the deadline for achieving the objectives of each stage;
e. pay close attention to the impact of the policies adopted on each of the categories of persons concerned, particularly the most vulnerable (European Federation of National Organisations Working with the Homeless (FEANTSA) v. France, Complaint No. 39/2006, Decision on the merits of 5 December 2007, § 54).
Article 16
60. The Committee notes that Ireland has overall made significant progress in the last decades in the provision of accommodation for Travellers, access to housing and the refurbishment of Traveller accommodation. It notes that a task Force was created to examine, inter alia, the issue of Traveller accommodation, and that an obligation is place on local authorities to create Traveller specific accommodation and to adopt regular needs assessments and Traveller Accommodation Plans in order to meet the needs of the Traveller community.
61. However despite this progress the Committee notes that there is still a not insubstantial shortfall of transient sites across the country; according to the ERRC and not disputed by the Government of 1,000 transient bays identified as needed by the 1995 Task Force there are only 54 in existence and not all function as proper transient sites. Moreover this estimate did not take into account the growth in the Traveller population. Only 5 local authorities (15%) provide transient sites.
62. The Committee also notes that there has been a fall in the number of families living in halting sites and decline in the provision of such accommodation
63. Furthermore the Committee notes that despite a substantial decline over the last two decades in the number of Travellers living on unauthorised sites; in 2013 361 families over 3% still live on unauthorised sites.
64. As regards Traveller families sharing accommodation, the Committee notes the 2010 NTACC Annual Report comments on the number of families sharing housing: ‘The number of families sharing housing also showed an increase in 61 families and now stands at 451 families. While some of those sharing are doing so in perfectly acceptable conditions there are also those who are sharing overcrowded accommodation.’ The number of families sharing accommodation has further increased since the report.
65. It notes in this respect the Concluding Observations of the UN Committee of Economic, Social and Cultural Rights: “The Committee is also concerned at the lack of culturally appropriate accommodation provided to Travellers and Roma and of
adequate legal protection of Traveller families at risk of eviction…” (Concluding Observations on Ireland’s Third Periodic Report E/C.12/IRL/CO/3 §27, 8 July 2015).
66. It further notes the reports of the Council of Europe bodies, the European Commission against Racism and Intolerance (ECRI) report of 2012, (CRI (2013)1) and the Advisory Committee on the Framework Convention for the Protection of National Minorities 3rd report on Ireland 2012 (ACF C/OP/III/2012(006)) also highlighted a lack of Traveller specific accommodation, as did the report of the UN Independent Expert on the Question of Human Rights and Extreme Poverty following her visit to Ireland in 2011 (A/HRC/17/34/Add2).
67. In light of all the information available Committee considers that despite the progress made and the policies put in place by the Government there is a shortfall in sufficient accommodation for Travellers in violation of Article 16 of the Charter.
68. Therefore the Committee holds that there is a violation of Article 16 of the Charter on this ground.
Article E in conjunction with Article 16
69. As regards the allegation that this failure to provide sufficient accommodation for Travellers amounts to discrimination the Committee recalls that ddiscrimination may also arise by failing to take due and positive account of all relevant differences or by failing to take adequate steps to ensure that the rights and collective advantages that are open to all are genuinely accessible by and to all (Centre on Housing Rights and Evictions (COHRE) v. Italy, Complaint No. 58/2009, Decision on the merits of 25 June 2010, §35).
70. The Committee underlines the imperative of achieving equal treatment by taking differences between individuals into account. It recalls its decision according to which it recognised that special consideration should be given to the needs and different lifestyle of Travellers, which are a specific type of disadvantaged group and a vulnerable minority (see inter alia, European Roma Rights Centre (ERRC) v. Portugal, Complaint No. 61/2010, Decision on the merits of 30 June 2011, §20) and notes that the same special consideration should be accorded to Travellers who also constitute a vulnerable minority and failure to do this will amount to discrimination.
71. However the Committee considers that if in fact the Government’s efforts to respond to the specific needs of the Travelling community have fallen short of what is required, they nevertheless demonstrate that a particular attention has been accorded to their needs.
72. Therefore the Committee holds that there is no violation of Article E in conjunction with Article 16 of the Charter on this ground.
Second part: Alleged violation due to inadequate legislative framework
A. Submissions of the parties
1. The complainant organisation
73. The ERRC argues that the Government has failed to develop a strong and enforceable legislative framework to ensure that the Traveller accommodation programmes are implemented, including failing to amend planning and zoning laws to ensure that land can be easily acquired and used for Traveller accommodation. In particular it argues that the obligation on local authorities under Section 16 of the Travellers Accommodation Act 1998 is simply to ‘take any reasonable steps as are necessary for the purpose of such implementation’ is too weak, no consequences ensue for local authorities should they fail to provide accommodation.
2. The respondent Government
74. The Government states that in 1998, Ireland adopted the Housing (Traveller Accommodation) Act. Under the Act, each Local Authority is obliged to conduct an assessment of the housing needs of Travellers living in their administrative area who qualify for social housing support and to also have regard to any summary of social housing assessments prepared under Section 21(c) of the Housing (Miscellaneous Provisions) Act 2009. On the basis of the results of this assessment, each Local Authority must formulate and adopt Traveller Accommodation Programmes every 5 years in consultation with Local Traveller Accommodation Consultative Committees and considering submissions from the public. Local authorities are specifically required to have regard to the provision of transient sites when preparing Traveller Accommodation Programmes (TAPs). Should a local authority fail to adopt their programme by the date specified by the Minister for this adoption, the local area manager is required to do so. Local Authorities are then required to take any reasonable steps necessary for securing the implementation of the programmes. Annual Reports are compiled on the implementation of programmes and authorities which fall behind on in their targets are asked to account to the Minister.
75. TAPs are formulated in a manner which places a heavy emphasis on consultation with the Travelling Community. The National Traveller Accommodation Consultative Committee (NTACC) was established under sections 19 and 20 of the 1998 Act to advise the Minister – in particular, with regard to "general matters concerning the preparation, adequacy, implementation and coordination of Traveller accommodation programme". Local Traveller Accommodation Consultative
Committees were also established under the Act to ensure liaison and consultation between local authorities and local Travelling communities must be consulted regarding TAPs. Finally, policy relating to the provision of services to Travellers is coordinated on a national level through a number of high-level committees.
76. The Government refers to its most recent TAPs 2014-2018 as well as to the recent Strategic Assessment into the structure in place for the consulting with and improving outcomes for the Roma and Travellers Communities, which made a number of recommendations. A revised National Traveller and Roma Inclusion Strategy has been developed during 2015.
B. Assessment of the Committee
77. The Committee notes that Ireland has adopted legislation on Traveller accommodation, which notably requires local authorities to draw up TAPs to set annual targets, and that progress is monitored by the Department of the Environment and NTACC. The Committee notes that the ERRC’s complaint in this respect focuses on the lack of sanctions that may be imposed on local authorities that do not fulfil their statutory duties under the Housing (Traveller Accommodation) Act 1998 as amended.
78. The Committee recalls that even if under domestic law local or regional authorities, trade unions or professional organisations are responsible for exercising a particular function, states parties to the Charter are still responsible, under their international obligations to ensure that such responsibilities are properly exercised (ERRC v. Greece, Complaint No. 15/2003, Decision on the merits of 4 December 2004, §29).
79. However the Committee considers that in delegating the obligation to meet the needs for accommodation adapted for Travellers to the local authorities, the Government has not absolved itself of its above mentioned obligations in international law and that it is a matter for the state concerned to determine what measures are necessary to ensure that local authorities or other bodies fulfill their statutory duties.
80. Therefore the Committee holds that there is no violation of Article 16 of the Charter on this ground.
Third part: Alleged violation due to failure to ensure adequacy of existing sites
A. Submissions of the parties
1. The complainant organisation
81. The ERRC alleges numerous and serious problems across the country regarding health, pollution, safety and overcrowding in existing halting and transient sites. There are severe problems with lack of adequate sanitary services, the absence of electricity supply or inconsistent supply and the lack of services available to people with disabilities. In support of these allegations they ERRC cite Burke-Wood and Mathews, “The state of Traveller Accommodation: A review of the 10th Anniversary of the Traveller Accommodation programmes” 2010 report commissioned by the Irish Traveller Movement. Further examples are given of the conditions in halting/transient sites around the country; inadequate water and toilet facilities, poor electricity supply, no waste disposal service for example. It further provides details of halting/transient sites which are situated in isolated locations not within a reasonable distance of public services or schools.
2. The respondent Government
82. On a procedural point the Government submits that the collective complaints procedure is not designed to permit the bundling of individual complaints, it alleges that the ERRC has sought to rely on unsubstantiated information concerning alleged individual complaints about accommodation (and eviction), which is inadmissible per se. Further it alleges that the allegations are vague, have been taken out of context or presented without context, or are inaccurate. However despite this objection the Government submits it has sought to respond to each allegation in so far as possible.
83. The Government maintains that all Traveller-specific accommodation in Ireland is located within a reasonable distance to public services and schools or serviced by outreach programmes. Further, all official halting sites in Ireland are provided with basic amenities including water and electricity though in some cases heating and waste disposal are paid for by the tenants. Sites have caretakers charged with the maintenance of these services. The health and safety of all Local Authority housing sites is monitored according to Department of Environment Guidelines.
84. The Government submits that the ERRC has not established that a significant number of Travellers are living in conditions, which fail to meet minimum standards. In particular the Government submits that the ERRC’s complaints in relation to specific halting sites are not supported by precise facts, it further refers to its
comments made in response to the specific allegations regarding halting site standards (Annex 1 and further response from the Government paragraphs 65-67).
B. Assessment of the Committee
85. The Committee notes the Governments objections concerning the admissibility of the allegations put forward by the ERRC, inter alia, as regards the inadequacy of existing sites (see paragraph 82 above). The Committee has previously stated that the complaints procedure is by its very nature a collective one that entails examinations of general situations. It has no authority to entertain individual situations nor to make any assessment or impose measures on the Government (International Movement ATD-Fourth World v. France, Complaint No.33/2006, 5 December 2007§53).
86. However it recalls that it has often examined examples, in particular in complaints concerning housing rights of Roma and Travellers, of living conditions on sites and camps, as these may be illustrative of the situation in practice and it is a matter for it to decide what weight should be afforded to any such evidence.
87. The Committee notes that the Government contests many of the details of the specific allegations regarding halting site standards.
88. While the Committee accepts that not all allegations are sustainable, it finds that there is enough evidence which leads it to conclude that a not insignificant number of sites are in poor condition, lack maintenance and are badly located.
89. The All Ireland Traveller Health Study 2010, found that “the majority of Traveller families have basic household amenities such as flush toilets, running water and postal and rubbish services. Nevertheless, in a 21st century developed economy, there remain Traveller families without such amenities, in disproportionately greater proportions than the general population.” It also noted that complaints were made that certain halting sites were far from shops and amenities. Major problems included lack of water, insufficient hot water and drainage, poor or no refuse collection, and problems with flooding and sewage. Damp and water ingress were reported to be a constant problem.
90. The Committee also notes the citations by the ERRC from The State of Traveller Accommodation: a review on the 10th Anniversary of the Traveller Accommodation Programmes” Burke-Wood and Matthews 2010, report Commissioned by the Irish Traveller Movement.
91. According to the report Why Travellers leave Traveller-specific accommodation (cited above) almost one third of Traveller specific accommodation is more than 25 years old , 23 % of accommodation was identified by local authorities as needing refurbishment 20 % of this requiring complete redevelopment.- 22%
halting sites were identified as needing some work, 25% halting sites needing extensive work and 25% complete redevelopment. Further it found that one of the reasons that Travellers leave Traveller specific accommodation was due to issues related to site location design and management.
92. Therefore the Committee holds that there is a violation of Article 16 of the Charter on the ground that not an insignificant number of sites for Travellers are in an inadequate condition.
Fourth part: Alleged violation due to legislative framework governing evictions
A. Submissions of the Parties
1. The complainant organisation
93. The ERRC alleges that the legislative regime in Ireland as regards the eviction of Travellers amount to a breach inter alia of Article 16, of the Charter, read alone or in conjunction with Article E. It is submitted that the different pieces of legislation permitting evictions are in breach of the Charter, either individually or in combination. Furthermore, the ways in which these laws are applied in practice amount to violations.
94. The ERRC states that Section 19 of the Criminal Justice (Public Order) Act 1994, as amended by section 24 of the Housing (Miscellaneous Provisions) Act 2002 (‘Public Order Act”), which permits the Gardai (police) to evict persons for criminal trespass where they have entered and or occupied land or brought on to the land any object without the consent of the owner and where the land or its amenity was or is likely to be damaged, prejudicially affected or substantially interfered with in a manner set out at Section 19C(1) (i)-(v), is unduly wide, unreasonable and disproportionate.
95. The ERRC alleges that the law fails to explicitly restrict the carrying out of evictions to exceptional circumstances and is phrased in vague and uncertain terms, meaning that its provisions can be invoked in a wide variety of situations. It may affect all Travellers who enter and occupy land where cannot prove they have the owner’s consent. It states that it is disproportionate in that it purports to criminalise those who have no alternative due to the failure of the State to provide Traveller specific accommodation, but to enter onto lands not owned by them.
96. The ERRC further argues that law also suffers from vagueness in its formulation, the use of the word ‘likely’ means that a person does not have to cause any actual harm. Rather, the mere potential for harm constitutes an offence and is very subjective in this context. Further the ERRC allege that the legislation fails to guarantee due process rights to persons to be evicted.
97. Firstly the Gardai are not required under Section 19A-G to provide any notice to the affected persons or secure a court order in advance. There is not even a requirement for a warrant to be issued for the person’s arrest. While summary arrest may be necessary in some circumstances, the fact that a person’s home is at stake means that, even if an eviction is justified, a reasonable notice period is necessary for families to adjust their lives in terms of accommodation, employment, education and access to basic services such as health care.
98. Secondly the ERRC argues that the law does not afford the affected person any defence, such as lawful excuse. Section 10 Notices under the Housing Act (Miscellaneous Provisions) Act 1992 as amended according to the ERRC, in essence provide for a lawful excuse since a Traveller can claim that no alternative accommodation is available. However, the Public Order Act provides no such provision for lawful excuses (arising for example from a lack of Traveller specific accommodation).
99. Thirdly the ERRC alleges that the Public Order Act reverses the burden of proof in relation to whether consent was given to a person to reside on the land. Section 19G(2) provides that: “In any proceedings for an offence under this Part it shall be presumed until the contrary is shown that consent under this Part was not given.” The ERRC argues that such a reversal of proof for one element of the offence calls into question the fundamental premise of the presumption of innocence and certainly the notions of fairness and equality of arms. It is necessary for the Travellers concerned to demonstrate that they have the consent of the owner concerned.
100. Fourthly, the legislation effectively denies an affected person an opportunity for judicial review. If the police believe that a person has committed the offence of trespass under the Act, they can be summarily evicted. The possibility for a person at risk of eviction to seek injunctive/ interim relief is unrealistic according to the ERRC, there will rarely be enough time. Further it argues judicial review is not a viable option for economically vulnerable persons who often have difficulties in accessing legal representation.
101. In addition there is no provision in the legislation requiring the Gardai to take account of the infringement of other rights, particularly the right to health and education. The Public Order Act fails to provide for any system of provision of alternative accommodation, in particular halting sites; there is no obligation on the Gardai under the Public Order Act to ensure that Travellers have an alternative site to go to.
102. The ERRC alleges that in some counties, the use of the Public Order Act has resulted in the loss of priority for some Travellers in the local authority waiting lists for accommodation. According to the ITM, families are ‘forced to leave a local authority area due to the use of the 1994 Act against them, they lose priority on that local authority’s housing list or may completely lose communication with the local authority and could be removed from the waiting list.’
103. Finally the ERRC alleges that the law is also an attack on the nomadic culture of many Travellers and has essentially largely criminalised nomadism. The criminalisation of trespass under the Public Order Act, particularly in combination with the failure to provide both permanent halting sites and transient sites, means that those Travellers without access to any halting sites effectively face the choice of discontinuing a nomadic lifestyle or committing acts of criminality and having their home (their caravan) seized.
104. The ERRC submits that parts of the regime for evictions set out in Section 10 of the Housing (Miscellaneous Provisions) Act 1992 (as amended) (“Section 10 Notices”) is incompatible with, inter alia, Article 16 of the Charter, either alone or in conjunction with Article E.
105. Three different provisions under Section 10 provide for evictions:
- Section 10(a) permits eviction by a local authority of Travellers who live within 5 miles of a halting site that, in the opinion of the housing (local) authority, could accommodate the temporary dwelling, in most cases a caravan. The Travellers are to be served a notice, which requires them to move to that halting site.
- Section 10(b) permits eviction by a local authority where the Travellers’ dwelling is unfit for human habitation due to lack of essential services, is likely to obstruct public and private amenities, or causes a significant risk to health and safety. Further, there must be a site managed by the authority to which the Travellers can be relocated. A notice must then be served on the affected Travellers.
- Section 10(c) simply permits a local authority to evict Travellers encamped within one mile of an existing site managed by the local authority where the temporary dwelling: (i) is causing a nuisance or obstruction to the occupants of that site or of any dwelling within a one-mile radius of the site; (ii) ‘creates a risk to the quality of water, sanitary, electrical or other services’ associated with that site or Traveller accommodation or other dwellings within a one-mile radius of that site; or (iii) interferes with the use, enjoyment, or maintenance of any public or private facility or amenity within a one-mile radius of the traveller accommodation. The local authority may issue a notice and the Travellers must move. No appropriate alternative accommodation must be provided.
106. The ERRC alleges that the law is inconsistent with the Charter prohibition on forced evictions since it lacks due process and has been inappropriately used in practice.
107. The ERRC highlights four grounds on which they maintain that Section 10 breaches the Charter;
- there is no requirement upon the local authority to consult with the Travellers over alternatives to eviction and the local authority is not required to take into account relevant circumstances, such as the circumstances of the original occupation, the contacts the family may have with local services and schools and whether any of the occupants may be elderly or ill.
- the notice requirement for Section 10 Notices is ‘not less than 24 hours’, which according top the ERRC cannot be considered as reasonable notice, given the consequences of eviction and the difficulties in relocating, particularly under section 10(c) where no alternative accommodation must be provided.
- there is no provision for a speedy legal appeal to the evictions. Travellers can lodge a legal complaint, and in some cases have been successful, but this takes a significant amount of time and legal costs are generally prohibitive.
- the legislation fails to provide for alternative and appropriate accommodation when an eviction proceeds. Under section 10(a) this is required but is doubtful whether it is available in practice. With Section 10(b) notices, alternative accommodation must be provided within the local authority area, yet this may mean relocation to a different city or town and the circumstances of such relocation must be made consistent with human rights norms. Further under Section 10 (c) there is no requirement at all for alternative accommodation or protection from homelessness. The notice must simply specify that the Traveller must move one mile from the present location.
108. The ERRC alleges that the Gardai and other authorized persons can evict Travellers under Section 69 of the Roads Act 1993 in breach of Article 16 of the Charter. It states that the legislation permits the confiscation of a caravan located on the roadside without consent, without prior notice, although a notice must later be displayed at the local Gardai station. The ERRC maintains that the legislation takes no account of the reasons for the presence of a temporary dwelling nor does it provide for any mechanism for Travellers to apply for consent. No does legislation provide for an opportunity to challenge the eviction prior to it taking place.
109. The ERRC submits that the Planning and Developments Act 2000 contains no requirement for a planning authority to consider the human rights of a person subject to an ‘unauthorised developments’ notice, which may require the demolition, removal, alteration or replacement of any structure, which had not prior authorisation. If the person fails to comply with the notice, they shall be guilty of an offence under section 46(11).
110. Furthermore it maintains that under Section 160 of the Act the local authority may seek an injunction requiring a person to remove a temporary dwelling from land owned by them if it does not comply with planning requirements. The ERRC submits that in practice it is very difficult for Travellers to comply with these planning requirements, as many planning guidelines require that the applicants must be from the local area, which is difficult for many Travellers to prove.
111. The ERRC submits that the Local Government (Sanitary Services) Act 1948, which permits the demolition of ‘unsanitary structures’, has been used to destroy homes. The legislation provides that non-compliance with a notice to remove or demolish an unsanitary structure is an offence and maybe punished by the imposition of a fine. A second or subsequent conviction in relation to the same dwelling- unsanitary structure may result in a court order for disposal of the structure. The ERRC complains that the legislation carries no requirement to consider human rights when issuing an order requiring removal or demolition. Furthermore, notice need only be posted in a local newspaper following the decision to impose an order
112. According to the ERRC the Public Health (Ireland) 1878 Act (as amended) allows the local authority to serve a notice on a person requiring them to abate the nuisance caused by a temporary dwelling. If the nuisance is not abated the local authority may apply to the courts for an order to remove the temporary dwelling. There is no provision made to re-house those affected.
2. The respondent Government
113. The Government denies that the legislation on evictions is in breach of the Charter.
114. The Government states that in the ERRC’s original submissions their interpretation of the the Criminal Justice (Public Order) Act 1994 (as amended) is incorrect; the ERRC has put forward a version of the text which implies that any entry or occupation of land without consent is ipso facto an offence, however it is only where the land or its amenity is being substantially damaged or interfered with or is likely to be so, is an offence committed. Entry and occupation without the consent of the owner is not an offence in Irish law.
115. As regards the allegation that the law is unduly, wide unreasonable and disproportionate, the Government argues that Section 19 of the Public Order Act is objectively justified by the purpose of the legislation (the property rights of landowners not to have their land substantially damaged) and is proportionate to this justification. The provisions are specifically tailored to deal with situations where entry and occupation is causing or is likely to cause a substantial deleterious effect to the owns rights They are of equal application to and for the benefit of the entire population and are not targeted at Travellers in genuine need of accommodation. They are justified by reference to the State's duty to vindicate property rights and to protect public health and public order. Both the objective justification and the proportionality of the provision are encapsulated by the limited circumstances in which the offence arises, which is that an offence can be proven only where prosecutor can establish that trespass is likely to substantially damage the land, substantially affect an amenity on the land, prevent persons using the land or amenities on the land, render the use of the land unsanitary or unsafe or substantially interfere with the land or any amenity on the land. Mere encampment of a temporary dwelling on land without consent does not fulfil the criteria.
116. Furthermore, the Government maintains the provisions of the Public Order Act are in no way vague. The use of the words "likely to cause" is not meant to mean and are not treated as meaning a "mere potential" of harm but is rather to be understood as meaning that the harm is more probable than not.
117. As regards the allegation that the lack of due process consistent with the rights of those affected, the Government states firstly in respect of notice periods, the legislation does not preclude notice periods being given by police according to the circumstances of the particular case.
118. The Government argues that it is unclear how either a mandatory notice period or a defence of "lawful excuse" framed as a subjective belief of the occupant could be reconciled with the property rights of a landowner not to have his land substantially damaged or its amenity substantially affected.
119. Contrary to the allegation by the ERRC the Government submits that there is no general reversal of the onus of proof.
120. Prior judicial approval to evictions is not required in circumstances where judicial review can be availed of. Affected persons can and have been granted interim relief against police action under the criminal trespass legislation.
121. As regards the alleged requirement that the legislation should take into account infringement of other rights and the fact that the Public Order Act does not require an assessment of alternative accommodation, the Government argues that criminal legislation cannot be effective if the ingredients of (or defences to) an offence pursuant to which immediate action is required to be taken (such as eviction) are subject to a police officer being required to exercise discretion by balancing the objects of the legislation against complex considerations of general policy. This is a recipe for arbitrary application of law. Section 19C of the Public Order Act is aimed at discrete and specific circumstances requiring a degree of urgency so as to vindicate the property rights of a landowner (which are protected by, inter alia, Article 1 of Protocol 1 to the European Convention of Human Rights).
122. According to the Government where local authorities initiate a complaint it is, their practice of local authorities to consult with the illegal occupant before having resort to the criminal trespass legislation. The NTACC have issued recommendations to be followed by local authorities, which include requirements to consider the housing status of those affected before using their powers.
123. Under the NTACC recommendations, use of the Public Order Act does not alter the affected person's status with regards to housing applications in that local authority's area
124. The Government concludes that the Public Order Act has not criminalised nomadism as has been alleged by the ERRC. It refers to funding provided for Traveller specific housing, as well as other measures to facilitate the Traveller’s way of life and data on the reduction of travellers living in unauthorized sites (see paragraphs 49-51 above).
125. The provisions of the impugned Public Order Act the Government argues do not discriminate against the Traveller community, however taking into account the vulnerability of Travellers to eviction Section 10 notices under the Housing (Miscellaneous Provisions) Act 1992 as amended, are the preferred procedures where Travellers are involved.
126. According to the Government Section 10 notices under the Housing (Miscellaneous Provisions) Act 1992 as amended, are aimed at ensuring that Travellers living on unauthorized sites are provided with accommodation by the relevant local authority. Further they are designed to ensure the re housing of Travellers living in conditions unfit for human habitation.
127. According to the Government between 2010 and 2013, 17 Section 10 notices were served.
128. As regards the alleged lack of due process the Government admits that there is no statutory obligation to consult the affected persons. However it maintains that it is the general practice of local authorities to consult with those concerned before issuing a notice. There is a minimum 24 hour statutory notice requirement however again it maintains that in general a detailed consultation takes place, which means that the notice period is much longer.
129. The Government argues that there are sufficient judicial remedies; affected persons may seek injunctions ex parte.
130. Concerning the issue of alternative accommodation the Government states that while Section 10(1)(a) and Section 10(1)(b) of the 1992 Act make the provision of alternative accommodation mandatory, Section 10(1)(c) does not. This is because this latter provision is used in situations where it is necessary to prevent interference with an existing site in circumstances of similar urgency to the Public Order Act. As such, a requirement that alternative accommodation need be available would hamper the objective pursued by the legislation.
131. The Government submits that the purpose of Section 69 of the Roads Act 1993 cited by the ERRC is to promote a precise and general objective: road safety by avoiding obstruction of major public roads and protect those erecting temporary dwellings. The provision covers less that 6%of the public road network. It is according to the Government not aimed specifically at Travellers. Furthermore it has been used very rarely.
132. The Government submits that the Planning and Development Act 2000 applies to the whole population and its purpose is to enforce the planning law in respect of unauthorized developments. It argues the ERRC has failed to demonstrate any use (or significant use) of the provision against the Traveller community contrary to the Charter.
133. The Government maintains that purpose behind the Local Government (Sanitary Services) Act 1948 which is of general application is the protection of human health. The ERRC, it argues has failed to demonstrate any use (or significant use) of the provision against the Traveller community contrary to the Charter.
134. The Government submits that the ERRC has failed to substantiate how the Public Health (Ireland) Act 1878 (as amended) of (which has a legitimate purpose to abate nuisances) has had an impact on the accommodation rights of the Traveller community.
B. Assessment of the Committee
135. The Committee recalls that illegal occupation of a site or dwelling may justify the eviction of the illegal occupants. However the criteria of illegal occupation must not be unduly wide (European Roma Rights Center v. Greece complaint No 15/2003 decision on the merits of 8 December 2004, § 51).
136. The Committee recalls its well established case law, most recently set out in Medecins du Monde-International v. France, Complaint No.67/2011, Decision on the merits of 11 September 2012, § 75, where it stated that in order to comply with the Charter, legal protection for persons threatened with eviction must be prescribed by law and include:
- an obligation to consult the affected parties in order to find alternative solutions to eviction;
- an obligation to fix a reasonable notice period before eviction;
- a prohibition to carry out evictions at night or during winter;
- access to legal remedies;
- access to legal aid;
- compensation in case of illegal evictions.
137. Furthermore, when evictions do take place, they must be:
- carried out under conditions respecting the dignity of the persons concerned;
- governed by rules sufficiently protective of the rights of the persons;
- accompanied by proposals for alternative accommodation
138. The Committee refers in this respect to judgments of the European Court of Human Rights in cases such as Connors v. The United Kingdom, judgment of 27 May 2004, where the Court stated “The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8.”
139. The Committee also has regard to the General Comment No 7 of the UN Committee on Economic, Social and Cultural Rights on the Right to adequate housing: forced evictions (1997) which explicitly mentions that the procedural protections should include an opportunity for genuine consultation with those affected; adequate and reasonable notice for all affected persons prior to the scheduled date of eviction; information on the proposed evictions, and, especially where groups of people are involved, government officials or their representatives to be present during an eviction.
140. The Committee notes that Section 19 of the Criminal Justice (Public Order) Act 1994 (as amended) fails to provide for prior consultation, adequate or any prior notice, nor any limits as to when evictions may take place and no requirement to provide proposals for alternative accommodation. The Committee recognises that the legislation has a legitimate purpose; to ensure that property unlawfully occupied is not substantially damaged, however it finds that this does not justify the lack of safeguards for those in occupation and who are likely to be in need of genuine accommodation. It refers in this respect to its above findings that there is a lack of Travellers specific accommodation.
141. As regards legal remedies, the Committee notes that there is no legal aid for those threatened with eviction. It notes that Travellers threatened with eviction may seek pro bono legal advice and representation from the Irish Traveller Movement Law Centre, however it considers that this is not sufficient.
142. The Committee finds that the other allegations made by the ERRC in respect of the Public Order Act disclose no violation of the Charter.
143. The Committee notes that the law is not explicitly aimed at Travellers, and it is not clear that it would have a disproportionate effect.
144. Therefore the Committee holds that there is a violation of Article 16 of the Charter and that there is no violation of Article E in conjunction with Article 16 of the Charter on this ground.
145. The Committee notes that none of the three sub sections under Section 10 under the Housing (Miscellaneous Provisions) Act 1992 (as amended) permitting eviction provide for prior consultation. Further a notice period of not less than 24 hours cannot be considered as reasonable, particularly in the context of Section 10 (b) under which Travellers may be relocated some distance from where they are currently located nor under Section 10 (c) where there is no obligation to provide alternative accommodation. It notes that the Government maintains in practice Travellers threatened with eviction are consulted and given more than 24 hours notice prior to being issued with a Section 10 Notice. However the Committee finds that this is not sufficient.
146. Lastly the Committee finds that the remedy of judicial review in the absence of legal aid is not sufficiently accessible.
147. The Committee holds therefore that there is a violation of Article 16 of the Charter on this ground.
148. The Committee notes that the object of the impugned provisions of the Roads Act 1993 is to ensure the safety, of both road users and those unlawfully encamped alongside certain roads. It considers in such circumstances where there maybe compelling issues of safety it may not always be possible or appropriate to provide for prior consultation or prior notice, or other delaying rules. The Committee considers that if prior consultation nor the offer of alternative accommodation are not provided for by the abovementioned legislation, the aim of the law which is to ensure road safety and in particular the safety of those encamped in temporary dwellings alongside these roads justifies that emergency measures be taken.
149. The Committee holds therefore that there is no violation of Article 16 or Article E in conjunction with Article 16 of the Charter on this ground.
150. The Committee notes that provisions of the Planning and Development Act 2000 complained of do not provide for evictions but for the demolition, removal or replacement of any structure for which prior authorisation has not been sought. It finds that this legislation has general application and serves a legitimate purpose; to ensure compliance with planning legislation. Further the legislation provides for prior notice to be served on those affected and a court order. The Committee considers that the ERRC has failed to demonstrate prima facie that the legislation disproportionately impacts on the Traveller population.
151. Therefore the Committee holds that there is no violation of Article 16 or Article E in conjunction with Article 16 of the Charter on this ground.
152. The Committee notes that the provisions complained of in the Local Government (Sanitary Services) Act 1948 have a legitimate purpose- the protection of public health and safety. They do not provide for the immediate removal or demolition of an temporary dwelling, only where persons affected by the notice have been convicted on a second or subsequent occasion for non compliance with an order issued by a local authority may a court order such removal, destruction or disposal. Furthermore an appeal is possible against an order within 14 days of its publication.
153. The Committee holds that there is no violation of Article 16 or Article E in conjunction with Article 16 of the Charter on this ground.
154. The Committee notes that the Public Health Act 1878 (as amended) provides that, following a failure to abate a nuisance, if the court is satisfied that the alleged nuisance exists, or that although abated it is likely to recur on the same premises, the court shall make an order on such person requiring him to comply with all or any of the requisitions of the notice, or otherwise to abate the nuisance within a time specified in the order, and to do any works necessary for that purpose; or an order prohibiting the recurrence of the nuisance and directing the execution of any works necessary to prevent the recurrence; or an order both requiring abatement and prohibiting the recurrence of the nuisance (Section 112).
155. Further it notes that the legislation does not refer specifically to a temporary dwelling, it refers inter alia, to “(A)ny premises in such a state as to be a nuisance or injurious to health.”
156. The Committee considers that it is reasonable to require those causing a public health nuisance to abate such nuisance and without further information on the practical implementation of the legislation in respect of Travellers specifically, it finds that it has not been demonstrated that it prima facie disproportionately impacts on Travellers.
157. Therefore the Committee holds that there is no violation of Article 16 or Article E in conjunction with Article 16 of the Charter on this ground.
Part five: Alleged violation regarding evictions in practice
A. Submissions of the Parties
1. The complainant organisation
158. The ERRC alleges that evictions are carried out in practice in circumstances which violate the Charter. The ERRC provides concrete examples of evictions under the Public Order Act 1994, Housing (Miscellaneous Provisions) Act 1992, Public Health Act 1878 between 2002 and 2012. It alleges inter alia, that evictions are often carried out without consultation, short notice periods and no offer of alternative accommodation.
159. The ERRC maintains that in the absence of a central register of evictions the Government cannot prove that Travellers facing eviction are in practice consulted, given reasonable notice or offered alternative accommodation, despite the legislation making no such provision.
2. The respondent Government
160. The Government raises objections to the admissibility of individual and specific complaints (see above paragraph 82). Nevertheless it refutes the allegations made by the ERRC in respect of the specific examples referred to. The allegations are not specific as to the facts of the cases referred to, or omit many of the pertinent details. The Government alleges that the ERRC relies on hearsay or third party reports (including press reports).
161. The Government provides a response to each of the cases of alleged forced evictions referred to by the ERRC (Annex 1). It maintains that none of the specific examples can ground any alleged violation of the Charter.
162. However the Government admits there is no central government record of evictions, and therefore no data concerning consultation, alternative accommodation solutions etc. But it intends to bring this issue forward for consideration by the NTACC. It further states that guidelines on the conduct of evictions will be drawn up by the NTACC.
163. Overall the Government maintains that it has made measurable progress commensurate with available resources within a reasonable time frame in the provision of Traveller accommodation, in particular in light of the Ireland’s economic difficulties and the growth of the Traveller population.
B. Assessment of the Committee
164. The Committee takes note of the evidence on alleged forced evictions submitted to the Committee. The Committee notes that the Government disputes details of the circumstances surrounding some of the alleged forced evictions. It also notes that a certain amount of the information submitted by the complainant organisation is incomplete and does not sufficiently justify some of the allegations made in relation to forced evictions.
165. However the Committee notes firstly it has found that some of the legislation permitting evictions fails to provide for consultation with those to be affected, reasonable notice of and information on the eviction. Nor does all the legislation require the provision of alternative accommodation or adequate legal remedies (see paragraphs 140, 141 and 145 above).
166. While the Committee notes that the Government maintains that in practice local authorities do consult with Travellers threatened with eviction and do seek to provide alternative accommodation, it considers that in the absence of an obligation to do so, it cannot be stated that in all cases this practice is followed. Moreover there is no evidence that such practices are followed where Travellers are being evicted from land not belonging to a local authority.
167. Therefore the Committee holds that that there is a violation of Article 16 of the Charter on this ground.
II. ALLEGED VIOLATION OF ARTICLE 17 OF THE CHARTER AND OF ARTICLE E IN CONJUNCTION WITH ARTICLE 17
168. Article 17 reads as follows:
Article 17 – The right of children and young persons to social, legal and economic protection
Part I: “Children and young persons have the right to appropriate social, legal and economic protection.”
Part II: “With a view to ensuring the effective exercise of the right of children and young persons to grow up in an environment which encourages the full development of their personality and of their physical and mental capacities, the Parties undertake, either directly or in co-operation with public and private organisations, to take all appropriate and necessary measures designed:
….
2. to provide to children and young persons a free primary and secondary education as well as to encourage regular attendance at schools."
169. Article E reads as follows:
Article E – Non-discrimination
“The enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status.”
A. Submissions of the Parties
1. The complainant organisation
170. The EERC submits that the negative impact of evictions and inadequate accommodation on Traveller children’s wellbeing and in particular their school attendance amounts to a breach of Article 17 of the Charter.
171. It furthermore alleges that there have been substantial cutbacks to Traveller education services affecting the education rights of Traveller children. It submits that particular school transport provisions that were previously available have been withdrawn and that the school transport from Traveller specific accommodation is not available in many locations.
2. The respondent Government
172. The Government states that no specific allegation of a violation of the right to education of Traveller children has been made.
173. However it nevertheless states that considerable progress has been made in the educational provision for Traveller children in recent years, there has been a 46% increase in the number of Traveller children enrolled in post primary education between 2005 and 2012. Significant funds are provided for the Delivering Equality of Opportunity in Schools programme.
174. The Government further states that the Report and Recommendations for Traveller Education Strategy 2006 identified the potential impact of the threat of eviction without notice for Travellers on unauthorised sites, on Traveller education.
175. All authorised halting sites are either within a reasonable distance to a school or are serviced under the School Transport scheme.
176. In response the ERRC’s submission that there have been substantial cuts to Traveller education schemes the Government states that the abolition of certain specific schemes is as result of end of segregated Traveller provision and the adoption of a policy of mainstreaming in accordance with the above-mentioned report. Some resources previously allocated for Traveller education have been reallocated to Traveller children within the mainstream education system.
B. Assessment of the Committee
177. The Committee recalls that under Article 17 of the Charter States must ensure that education is accessible and effective for all children. Education provided by States must fulfil the criteria of availability, accessibility, acceptability and adaptability. States have positive obligations to ensure equal access to education for all children. In this respect particular attention should be paid to vulnerable groups.
178. However, having regard lack of specificity of the allegations made under Article 17 by the ERRC and to the response by the Government either alone or in conjunction with Article E, the Committee considers that the complaint does not disclose any breach of the Charter.
179. Therefore the Committee holds that there is no violation of Article 17 either alone or Article E in conjunction with Article 17 of the Charter.
III. ALLEGED VIOLATION OF ARTICLE 30 OF THE CHARTER AND OF ARTICLE E IN CONJUNCTION WITH ARTICLE 30
180. Article 30 reads as follows:
Article 30: The right to protection against poverty and social exclusion
“Part I: Everyone has the right to protection against poverty and social exclusion.”
“Part II: With a view to ensuring the effective exercise of the right to protection against poverty and social exclusion, the Parties undertake
a. to take measures within the framework of an overall and co-ordinated approach to promote the effective access of persons who live or risk living in a situation of social exclusion or poverty, as well as their families, to, in particular, employment, housing, training, education, culture and social and medical assistance;
b. to review these measures with a view to their adaptation if necessary.”
181. Article E – reads as follows:
Article E – Non-discrimination
“The enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status.”
A. Submissions of the Parties
1. The complainant organisation
182. The ERRC submits that the failure of the Government to provide sufficient accommodation to Travellers, the failure to create a sufficiently strong legislative framework in respect of Traveller accommodation, the failure to ensure the adequacy of existing sites and well as the deficiencies in the legislation and practice in regard to evictions give rise to a breach of Article 30 either alone or in conjunction with Article E of the Charter.
2. The respondent Government
183. The Government states that no specific breach of Article 30 of the Charter has been identified by the ERRC.
184. However it refers to the Section 10 Notice system under the Housing (Miscellaneous Provisions) Act 1992 (as amended) as an element of a coordinated overall approach towards meeting the accommodation needs of Travellers, Section 10 Notices are used to redistribute families to more suitable sites.
B. Assessment of the Committee
185. The Committee reiterates that living in a situation of poverty and social exclusion violates the dignity of human beings and that Article 30 of the Charter requires States Parties to give effect to the right to protection against poverty and social exclusion by adopting measures aimed at preventing and removing obstacles to access to fundamental social rights, in particular employment, housing, training, education, culture and social and medical assistance (Statement of interpretation on Article 30, Conclusions 2003).
186. The Committee reiterates that such a co-ordinated approach should consist of an analytical framework, as well as of a set of priorities and measures to prevent and remove obstacles to access to fundamental social rights. Monitoring mechanisms should be put in place, involving all relevant actors, including the civil society and persons affected by exclusion and poverty. Policies should moreover be linked and integrated in a consistent way, that is in a manner reaching beyond a sectorial or a targeted group approach (International Movement ATD Fourth World v. France, cited above, §134).
187. Particular attention should be given to the effectiveness of the policies, measures and actions undertaken (Conclusions 2003, France).
188. The Committee emphasises the very close link between the effectiveness of the right recognised by Article 30 and the enjoyment of the rights recognised by other provisions, such as Article 16 of the Charter (Statement of Interpretation on Article 30, Conclusions 2013).
189. When assessing Article 30, the Committee also takes into consideration the national measures or practices which fall within the scope of other substantive provisions of the Charter in the framework of both monitoring systems (the reporting procedure and the collective complaint procedure). This approach does not mean that a conclusion of non- conformity or a decision of violation of one or several of these provisions automatically or necessarily lead to a violation of Article 30 (EUROCEF v. France, Complaint No. 82/2012, Decision on the merits of 19 March 2013, para. 59); but such a conclusion or decision may, depending on the circumstances, be relevant in assessing conformity with Article 30.
190. As concerns the approach adopted in ensuring accommodation for Travellers in Ireland, the Committee observes specific legislation and other measures / policies have been adopted. Following a report prepared by the task force on the Traveller community established in 1995, legislation was passed in 1998 which includes obligations of local authorities for halting sites. Resources have furthermore been allocated for the implementation of these policies. The Committee notes, in particular that local authorities are obliged to conduct an assessment of housing needs of Travellers in their area and must formulate and adopt TAPs every 5 years in consultation with Local Traveller Accommodation Consultative Committees. It also notes the monitoring role of the NTACC.
191. Finally the Committee notes the overall progress made in the provision of Traveller accommodation over the last decades, even if further efforts need to be made. It further recalls that it found Ireland in conformity with Article 30 in the reporting system (Conclusions 2013).
192. Despite its findings under Article 16 of the Charter in the instant case (see paragraphs 67-68), the Committee finds that Ireland has adopted a coordinated approach to remove obstacles to access for housing for Travellers, that the measures taken are monitored and that consultation is ongoing on improving outcomes for the Traveller community. In addition further measures are underway- such as the development of a revised National Traveller and Roma Inclusion strategy for implementation from 2016.
193. The Committee considers therefore that there is no violation of Article 30 of the Charter or of Article E in conjunction with Article 30.
IV. REQUEST FOR COMPENSATION
A. Arguments of the parties
1. The complainant organisation
194. The ERRC asks the Committee to consider reimbursement of costs for expenses incurred in preparing the complaint
2. The respondent Government
195. The Government has not reacted or made any comments on this request.
B. Assessment of the Committee
196. The Committee has already stated that, whilst the Protocol does not regulate the issue of compensation for expenses incurred in connection with complaints, it considers that as a consequence of the quasi-judicial nature of the proceedings under the Protocol in case of a finding of a violation of the Charter, the respondent State should meet at least some of the costs incurred. Furthermore, the Committee of Ministers accepted the principle of such a form of compensation (CFE-CGC v. France, complaint No. 16/2003, decision on the merits of 12 October 2004, §§75-76).
197. Consequently, when such a claim is made, the Committee will examine it and submit its opinion regarding it to the Committee of Ministers, leaving it to the latter to decide how it might invite the Government to meet all or part of these expenses (CFE-CGC v. France, ibid., §77).
198. The Committee first notes that in the instant case the complainant organisation has not detailed its costs incurred for preparing the complaint. However the Committee recalls that in another similar complaint, in the absence of any supporting documents, it recommended payment of a lump sum of € 2 000 as compensation, (CFE-CGC v. France, ibid., §80). Therefore making an assessment on an equitable basis, the Committee considers that it would be fair to award the complainant organisation a lump sum of € 2 000. It thus invites the Committee of Ministers to recommend that Ireland pay this sum to the complainant organisation.
CONCLUSION
For these reasons, the Committee concludes:
- unanimously that there is a violation of Article 16 of the Charter on the grounds of insufficient provision of accommodation for Travellers;
- by 6 votes to 5 that there is no violation of Article E in conjunction with Article 16 of the Charter regarding the insufficient provision of accommodation;
- unanimously that there is no violation of Article 16 of the Charter regarding the legislative framework on Traveller accommodation;
- unanimously that there is a violation of Article 16 of the Charter on the grounds many Traveller sites are in an inadequate condition;
- unanimously that there is a violation of Article 16 of the Charter on the grounds that the Criminal Justice (Public Order) Act 1994 (as amended) provides for inadequate safeguards for Travellers threatened with eviction;
- unanimously that there is no violation of Article E read in conjunction with Article 16 of the Charter regarding the Criminal Justice (Public Order) Act 1994 (as amended);
- unanimously that there is a violation of Article 16 of the Charter on the grounds that the Housing (Miscellaneous Provisions) Act 1992 (as amended) provides for inadequate safeguards for Travellers threatened with eviction;
- unanimously that there is no violation of Article 16 of the Charter or of Article E in conjunction with Article 16 regarding the Roads Act 1993;
- unanimously that there is no violation of Article 16 of the Charter or of Article E in conjunction with Article 16 regarding the Planning and Development Act 2000;
- unanimously that there is no violation of Article 16 of the Charter or of Article E in conjunction with Article 16 regarding the Local Government (Sanitary Services) Act 1948;
- unanimously that there is no violation of Article 16 of the Charter or of Article E in conjunction with Article 16 regarding the Public Health Act 1978 (as amended);
- unanimously that there is a violation of Article 16 of the Charter on the grounds that evictions are carried out in practice without the necessary safeguards;
- unanimously that there is no violation of Article 17 or of Article E in conjunction with Article 17 of the Charter;
- by 10 votes to 1 that there is no violation of Article 30 or of Article E in conjunction with Article 30 of the Charter.
- Invites the Committee of Ministers to recommend that Ireland pay the complainant organisation the sum of €2,000 as compensation for expenses incurred.
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Eliane CHEMLA Rapporteur |
Giuseppe PALMISANO President |
Régis Brillat Executive Secretary |
In accordance with Rule 35§1 of the Rules a separate dissenting opinion of Petros STANGOS is appended to this decision.
SEPARATE DISSENTING OPINION OF
In the part of the decision on the allegation of a violation of Article 30 of the revised Charter read in conjunction with Article E, most of the Committee members no doubt took account of the statement of interpretation on Article 30, adopted by the Committee in the context of Conclusions 2013, but they did so in a way which, in my view, significantly disregards the meaning and the purpose of this interpretation. This is the reason why I voted against the finding that there was no violation of Article 30 in connection with this complaint.
If it is interpreted literally, Article 30 implies that states party’s laws and policies which may fall within the sphere of protection against poverty and social exclusion are “dependent” on state activities falling within other areas of social policy such as employment, housing, training, education, culture and social and medical assistance. The words “in particular” used in Article 30 mean that national measures falling within these areas may also be interpreted through the prism of the sphere of state activity covered by Article 30 (i.e. the fight against poverty and social exclusion).
As a result of this connection, it is also possible for a link to be established, through the national measures applied in this case, between Article 30 and one or more of the Charter’s substantive provisions which apply in other areas of state activity. However, embarking on a process of exploring whether such a link can be established is dependent on the second of the following possible scenarios. Firstly, if a national measure taken, for example, in the sphere of the social, legal and economic protection of the family is found to be in conformity with Article 16 of the Charter, it will not be easy to establish that it is incompatible with the undertaking made by the state party concerned under Article 30 because the Committee’s assessment with regard to the same national measure will be regarded as res interpretata. Secondly – and conversely – if a national measure in the area of protection of the family is found not to be in conformity with Article 16, a decision by the Committee finding that the same measure is compatible with Article 30 will risk being at odds with common sense and rendering the rights enshrined in Article 30 less effective.
It is not the aim of the interpretative statement on Article 30 to be able to pass automatically from a finding of non-conformity under another substantive provision of the Charter to a finding of a violation of Article 30. Its practical purpose is to ensure that a national measure or practice which is suspected of posing a major risk of social exclusion or poverty and has been examined under another substantive provision will be examined again under Article 30. To some degree, the national measure or practice concerned should be routinely “reread” or “re-examined” by the Committee under Article 30 in conjunction with the other substantive provision of the Charter.
The decision adopted by a majority of the members of the Committee concerning the non-violation of Article 30 simply confirmed the lack of a well-reasoned conclusion arising from the statement of interpretation of 2013. Most of the members deliberated on this issue without discussing the positive potential generated by the statement of 2013. The Committee found that the concrete practices and measures pursued or adopted by the Irish Government resulting in an insufficient number of housing solutions for Travellers, the persistently poor upkeep of a significant number of halting sites and the failure of the applicable law to provide for the prior consultation or appropriate notification of Travellers before their eviction, rules on the times at which evictions could take place or a requirement to propose alternative accommodation amounted to violations of Article 16. The fact that the majority of the members of the Committee elected not to consider the same national practices or measures under Article 30 (paragraph 193) amounts to condoning the above mentioned aspects of the Irish Government policy, despite being criticised in numerous other paragraphs of the decision. I consider this approach to be a backward step in the attempt to secure the consistency of the various provisions of the Charter and the legal instrument’s normative integrity - a goal that the statement of interpretation on Article 30 seeks to uphold.
[1] “The Travellers are an identifiable group of people, identified both by themselves and by other members of the community (referred to for convenience as the ’settled community’) as people with their own distinctive life style, traditionally of a nomadic nature but not now as habitual wanderers. They have needs, wants and values which are different in some ways from those of the settled community.” Report of the Traveller People Review Body (1983) cited in the Report of the Task Force on the Travelling Community 1995.