Information Note on the Court’s case-law 240

May 2020

Hirtu and Others v. France - 24720/13

Judgment 14.5.2020 [Section V]

Article 8

Article 8-1

Respect for family life

Respect for private life

Eviction, without any offer of accommodation, of Roma living in an unauthorised camp for six months and belated review, post-eviction, of the proportionality of the measure: violation

Facts – The applicants, Romanian na tionals belonging to the Roma community, were forced to leave the encampment where they had been living unlawfully for six months. They appealed unsuccessfully against their eviction.

Law – Article 8:

The concept of “home” within the meaning of Article 8 w as not limited to premises which were lawfully occupied or which had been lawfully established. It was an autonomous concept which did not depend on classification under domestic law. Whether or not a particular premises constituted a “home” which attracte d the protection of Article 8 depended on the factual circumstances, notably the existence of sufficient and continuous links with a specific place. In the instant case the applicants had been living in the camp for only six months when it had been cleared . Accordingly, they could not rely on the right to respect for their home, in the absence of a sufficient and continuous link with the place in question.

Nevertheless, there had been interference with the applicants’ right to respect for their private and family life. The interference had been in accordance with the law and had pursued the legitimate aims of protecting health and public safety and protecting the rights and freedoms of others.

With regard to the eviction order, the authorities had been entitled in principle to evict the applicants, who had been unlawfully occupying municipal land and, since they had no title to the land, could not claim a legitimate expectation of remaining ther e. This was especially true since they had only been there for six months.

As to the eviction measure, it had not been based on a judicial decision but on the procedure for issuing formal notice under section 9 of the Law of 5 July 2000. This had entailed a number of consequences.

Firstly, given the short time between the issuing of the prefect’s order (on 29 March), its service (on 2 April) and the actual evictions (on 12 April), none of the measures advocated by the 2012 inter-ministerial circular concern ing measures taken before and during operations to clear unlawful settlements had been implemented (assessment of the situation of the families and individuals concerned, as well as assistance with schooling, healthcare and housing). While the Government a rgued that there had been no obligation to rehouse the applicants since they had possessed caravans, the applicants had alleged that all their caravans, with the exception of one family’s, had been seized. Moreover, the measures listed in the circular were applicable irrespective of whether the persons concerned had caravans. Hence, no account had been taken of the repercussions of the eviction or the applicants’ particular circumstances.

Secondly, because the procedure for giving formal notice had been app lied, the remedy provided for in domestic law had come into play after the decision had been taken by the administrative authorities, whereas in other cases the courts assessed the proportionality of the measure before taking their decision. None of the re medies used by the applicants, which were declared inadmissible, had enabled them subsequently to submit their arguments to a judicial body. The first judicial body to rule on the proportionality of the interference had been the Administrative Court of App eal, eighteen months after the evictions from the camp. However, the fact that the applicants belonged to an underprivileged social group, and their particular needs on that account, had to be taken into consideration in the proportionality assessment that the national authorities were under a duty to undertake, not only when considering approaches to dealing with the unlawful settlement but also, if eviction was necessary, when deciding on its timing and manner and, if possible, arrangements for alternativ e accommodation. Furthermore, as part of the procedural safeguards of Article 8, any person subjected to interference with his or her rights under that provision should be able to have the proportionality of the measure reviewed by an independent tribunal in the light of the relevant principles under Article 8.

Conclusion : violation (unanimously).

The Court also held unanimously that there had been no violation of Article 3 under its substantive limb, given that it had not been established that the applican ts had been evicted forcibly, and that the French authorities could not be said to have remained indifferent to the applicants’ situation with regard to their living conditions after their eviction.

In addition, the Court held unanimously that there had been a violation of Article 13 since neither the specific remedy with suspensive effect in respect of the evictions from the camp, nor the urgent application for protection of a fundamental freedom – b oth of which, on the face of it, were effective but which had been declared inadmissible – had enabled the applicants to obtain a review by a judicial body of their arguments under Articles 3 and 8 of the Convention at first instance, either in proceedings on the merits or under the urgent procedure.

Article 41: EUR 7,000 each to the individual applicants and to one couple in respect of non-pecuniary damage.

(See also Prokopovitch v. Russia , 58255/00, 18 November 2004, Information Note 69 ; McCann v. the United Kingdom , 19009/04, 13 May 2008, Information Note 108 ; Orlić v. Croatia , 48833/ 07 , 21 June 2011; Yordanova and Others v. Bulgaria , 25446/06, 24 April 2012 , Information Note 151 ; and Winterstein and Others v. France , 27013/07, 17 October 2013, Information Note 167 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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