7, 14, 17, 23, 26 and 27 Article of the Optional Protocol: 2 * Adopted by the Committee at its 118th session (17 October-4 November 2016). ** The following members of the Committee participated in the examination of the communication: Yadh Ben Achour, Lazhari Bouzid, Sarah Cleveland, Ahmed Amin Fathalla, Olivier de Frouville, Yuji Iwasawa, Ivana Jelić, Duncan Laki Muhumuza, Photini Pazartzis, Mauro Politi, Sir Nigel Rodley, Víctor Manuel Rodríguez Rescia, Fabián Omar Salvioli, Anja Seibert-Fohr, Yuval Shany, Konstantine Vardzelashvili and Margo Waterval.
The authors of the communication are “I Elpida” — the Cultural Association of Greek Gypsies from Halandri and Suburbs1 — and Stylianos Kalamiotis, a Greek national who is a resident of the Halandri Roma settlement. They claim that if their forcible eviction and the demolition of their homes is implemented before their full relocation, Greece would be in violation of their rights under articles 2, 7, 14, 17, 23, 26 and 27 of the Covenant. The Optional Protocol entered into force for the State party on 5 May 1997. The authors are represented by counsel, the Greek Helsinki Monitor.
On 10 May 2013, pursuant to rule 92 of the Committee’s rules of procedure, the Committee, acting through its Special Rapporteur on new communications and interim measures, requested the State party to take measures to prevent the authors from becoming homeless while their case was under consideration by the Committee.
On 14 August 2013, the Committee, acting through its Special Rapporteur on new communications and interim measures, denied the State party’s request to lift the interim measures.
Factual background
The Roma settlement in which the authors live has existed since the late 1970s, on private properties located in an area known as the “National Mint”, in the municipality of Halandri, which is part of the Greater Athens area. In 1995 and 1996, the Department of Town Planning of the then Prefecture of Athens decided that the Roma housing in that area was illegal and had to be demolished. An attempt to execute those decisions was made in 1999, but was averted following intervention by the Halandri municipal authorities and the Office of the Prime Minister, as it was declared that the State party first had to find a suitable alternative for relocation. At the initiative of the Greek Ombudsman, a committee with members representing several public entities was created, with a view to finding a solution. However, the authors submit that the authorities have failed to provide the families, currently numbering about 65,7 with adequate alternative housing.
In 2011, the Athens Administrative Court of First Instance8 ordered the Greek State and the Municipality of Halandri to pay compensation to the owners of the plots of land where the settlement lies, because the relevant authorities had failed to implement the necessary measures to identify and designate suitable areas to house the Roma families living in the settlement. In the opinion of the Court, the authorities’ delay in taking action exceeded any reasonable length of time. The members of this association are the residents of the Roma settlement located in the “National Mint” area of the municipality of Halandri in Greater Athens. Mr. Kalamiotis is the president of the I Elpida cultural association and a resident of the Halandri (Greater Athens) Roma settlement. The communication is submitted by the second author individually, and by the first author legally represented by the second author, through Greek Helsinki Monitor Executive Director Panayote Dimitras who has been expressly authorized by the second author in his two capacities.
The authors quote a study by the Public Company for Urban Planning and Housing (DEPOS), published in 1999.
At the time there were 42 lodgings.
No information has been provided as to the authority that made this declaration.
The Office of the Prime Minister and the Municipality of Halandri were part of this committee. It is not indicated when this committee was created.
Two of these families are those of authors of communications: No. 1558/2007, Katsaris v. Greece, Views adopted on 18 July 2012; and No. 1486/2006, Kalamiotis v. Greece, Views adopted on 24 July 2008.
Judgment 642/1-2-2011.
On 4 September 2012, a prosecutorial decision 9 to demolish the 42 lodgings registered as illegal in 1995 and 1996 was issued. It was planned that the demolition would take place on 18 September 2012, however it was not carried out because the President of the Athens Administrative Court of Appeal issued an injunction on 17 September 2012, following a motion for annulment that had been filed on behalf of the second author and other residents of the settlement. On 12 November 2012, the same tribunal rejected the motion as inadmissible,11 considering that the decision ordering the demolition did not have an executable character, because it was a simple enforcement act of the decisions in 1995 and 1996 that had ordered the demolition.
According to the authors, the only decisions with an executable character are those issued in 1995 and 1996 by the urban planning authorities. They consider that no legal remedy remains available. They also acknowledge that all their lodgings (of about 65 Roma families) are illegal. However, they have not abandoned them because they do not have the means to find alternative housing and expect the State party to relocate them. They add that the authorities have repeatedly stated that the existing lodgings in the settlement do not meet the standards for adequate housing, as they do not have electricity or running water.
On 14 December 2012, the committee created by the Ombudsman met with the second author and the Ombudsman herself, and decided to allocate a plot of 30,000 square metres adjacent to the current settlement and belonging to the State, for relocation. The authors question the willingness of the State party to implement this decision. On 26 February 2013, they learned that the Secretary-General of the Decentralized Administration of Attica had scheduled the demolition of the 42 illegal lodgings — those registered as illegal in 1995 and 1996 — for 14 May 2013.13
A parliamentary question by a Member of Parliament was tabled on 9 April 2013, requesting the Minister of the Interior to indicate whether he would revoke the decision to demolish the lodgings until such time as an adequate place for relocation had been identified. On 30 April 2013, the Minister answered that the State could not fund Roma housing projects because of the financial crisis, and indicated that he had sent a letter to the Secretary-General of the Decentralized Administration of Attica requesting specific information in order to inform Parliament. The authors consider that as a result of that letter, the Secretary-General of the Decentralized Administration of Attica felt obliged to issue a decision on 16 April 2013 and published it in “Diavgeia”15 on 23 April 2013, indicating that the entire settlement would be temporarily relocated to an available and undeveloped public property adjacent to the settlement, located in the Nomismatokopeio area. The decision indicated that the demolition would take place when certain requirements and preconditions had been met. The authors indicate that, as stated in the document, they were entirely satisfied with that decision.
Nonetheless, the Secretary-General of the Decentralized Administration of Attica had not suspended the execution of the decision of 26 February 2013. On 29 April 2013, the Secretary-General of the Decentralized Administration of Attica informed the authors’ counsel that he did not have the legal capacity or competence to suspend the execution of such a decision and that he could only do so if he received an order from another authority. On 30 April 2013, the above-mentioned Member of Parliament and the authors’ counsel met with the Athens First Instance Prosecutor for the Environment and requested her to issue a prosecutorial order suspending the demolition until the relocation had been completed. The authors claim that she was not eager to issue such an order, fearing that it would give the State party a reprieve that may delay the relocation indefinitely.
The authors submit that they did not have access to effective remedies to force the State party to implement the decisions favorable to their relocation and to suspend the decision of the Secretary-General of the Decentralized Administration of Attica of 26 February 2013. The authors submit that they should not be expected to take further legal actions “to ensure that the State party conforms to the decisions of its own authorities”. As shown by the decision of the Athens Administrative Court of Appeal of 12 November 2012,19 they could not use any other formal domestic remedy. They consider that a possible prosecutorial order to suspend the execution of the demolition decisions is not a formal remedy or a judicial decision, but a discretionary measure in the hands of the prosecutor. Such a prosecutorial order cannot provide any remedy that the property owners or the authors could use. The authors therefore submit that they have exhausted all available domestic remedies. The complaint
The authors claim that they are at risk of becoming homeless because of the State party’s failure to implement its own decision to relocate the settlement, using the financial crisis as an excuse for not doing so and putting them at risk of forced eviction. They refer to an April 2013 statement by the Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights, who noted that the State party should invest more in the prevention of homelessness in order to protect people under financial strain from losing their home.20
The authors recall the jurisprudence of the European Committee of Social Rights relating to the right to adequate housing of Roma people. In particular, they refer to a decision of 11 December 2009 against the State party,22 in which the European Committee of Social Rights found a violation of the right to adequate housing of several Roma families who had been forcibly evicted from their homes, on the grounds that evictions should take place only if they are in accordance with the applicable rules of procedure, which should be sufficiently protective of the rights of the persons concerned. The authors also refer to the jurisprudence of the Human Rights Committee on the matter, in particular Georgopoulos and others v. Greece,24 considering that it is applicable to their situation, in so far as, similarly to the communication mentioned, the authors have an expectation of non-eviction pending relocation, based on the annulment in 1999 of the demolition of their lodgings, which was then confirmed by subsequent decisions, in particular the decision of the Secretary-General of the Decentralized Administration of Attica of 16 April 2013. They therefore consider that their eviction without a prior solution would constitute an arbitrary and unlawful interference with their home and would have an adverse and irreparable impact on their family life, in violation of articles 17 and 23 of the Covenant.25
The authors claim that they have lived for over 12 years in substandard and inhuman conditions, believing that they should stay in the settlement until their relocation. They consider that this amounts to inhuman and degrading treatment, in violation of article 7 of the Covenant. They also indicate that if the forced eviction planned for 14 May 2013 is carried out, they will become homeless, and that this would amount to another violation of article 7 of the Covenant.
The authors also submit that there is no other ethnic group in the State party than the Roma who have been forced to live in degrading and inhuman conditions because a delay of more than 12 years has elapsed without their need for adequate housing being met and therefore consider that they are victims of discrimination, in violation of articles 26, 27 and 2 (1) of the Covenant. State party’s observations on admissibility
On 9 July 2013, the State party submitted its observations on the admissibility of the communication. It advised that on 13 May 2013, the Secretary-General of the Decentralized Administration of Attica had issued a decision postponing the eviction and the demolition of the authors’ homes until an alternative place for relocation had been found. It considered that the interim measures issued by the Human Rights Committee were no longer necessary, as the domestic authorities had taken measures to ensure that the authors were not rendered homeless, which included a study on infrastructure and a timetable for its implementation which would be submitted to the Attica Regional Development Fund in order to secure funding for the authors’ relocation.26
It also submitted that the first author, being an association, could not submit communications to the Committee, under article 2 of the Optional Protocol.27
The State party also indicates that the authors have not exhausted all available domestic remedies, because the decisions to demolish the authors’ homes were taken in 1995 and 1996 and the authors did not challenge them before the competent courts. Furthermore, the State party submits that the authors did not challenge the decision of the Secretary-General of the Decentralized Administration of Attica of 26 February 2013, based on the argument that it was a mere confirmation of the demolition orders of 1995 and 1996, while they could have submitted an application for annulment together with a motion to suspend the execution of the demolition order to the Athens Administrative Court of Appeal. Authors’ comments on the State party’s observations on admissibility
On 4 August 2013, the authors submitted their comments on the State party’s observations on admissibility. While agreeing that the decision of 13 May 2013 had avoided them becoming homeless, they noted that the State party did not provide any time frame for implementation of the measures mentioned in its observations. They also submit that the Secretary-General of the Decentralized Administration of Attica can amend the decision of 13 May 2013 at any time, and therefore request the Committee to maintain the interim measures.29
In regard to the State party’s argument that the first author may not submit a communication to the Committee, the authors submit that an association of persons created to represent its members before the authorities on complicated matters has legal standing before the Committee. They refer to the Views adopted by the Committee in Lubicon Lake Band v. Canada, in which the Committee stated that there was “no objection to a group of individuals, who claim to be similarly affected, collectively to submit a communication about alleged breaches of their rights”. They submit that the Halindri Roma community is a group of individuals who are similarly affected, and that they have provided the Committee with the statutes of the first author — the I Elpida cultural association — which list all its members, and provide its president, the second author, with the power to represent all of them.
As regards the State party’s argument that domestic remedies had not been exhausted, the authors submit that the eviction decisions of 1995 and 1996 were not executed because the authorities decided in 1999 to suspend all evictions until the Roma community could be relocated. The authors submit that they therefore stayed in the settlement for 17 years with the legitimate expectation that they would not be evicted before being provided with alternative accommodation. They consider that, as it did not seek to enforce the 1995 and 1996 eviction decisions, the State party implicitly acquiesced to their presence in “National Mint” for 17 years. Additionally, in order for them to be able to challenge the eviction decision, the State party should have launched new proceedings to evict them, which they could have challenged before the courts. The authors also note that the State party did not provide any examples of case law demonstrating that remedies would be available against the 1995 and 1996 eviction decisions. Concerning the State party’s submission that they should have challenged the demolition order of 26 February 2013 before the Athens Administrative Court of Appeal, the authors indicate that in view of the previous decisions on the same matter by that court, in particular the rejection of their motion of annulment, which was issued on 12 November 2012,32 they had no prospect of success. They reiterate that they submitted a request to the Athens First Instance Prosecutor for the Environment to suspend the demolition until the relocation, but that they never received a reply. State party’s observations on the merits
On 25 November 2013, the State party provided its observations on the merits of the communication. The State party reiterates that the Roma settlement is illegal, as it was constructed outside the urban planning zone and on private land, affecting the property rights of several persons, and that the competent authorities are therefore obliged to demolish it. The authorities complied with that obligation on 24 May 1996, when the demolition orders were issued. Those decisions became definitive because the authors failed to challenge them. The decisions have triggered a series of other decisions by judicial and administrative authorities, aimed at implementing them.
The State party indicates that it has adopted a two-track approach: (a) making every effort to identify suitable alternative accommodation for the Roma community affected; and (b) abstaining from enforcing the demolition orders until a temporary solution is found. Furthermore, there is an inextricable link between the obligation to restore the property rights of the owners and the obligation to ensure alternative temporary accommodation for the Roma concerned.
The State party submits that the Secretary-General of the Decentralized Administration of Attica has taken several actions to identify a suitable area for relocation, under relevant legislation33 designating him/her as the competent authority to identify areas for the temporary relocation of “itinerant persons”. On 16 April 2013, the Secretary- General of the Decentralized Administration of Attica decided to relocate the authors in the Nomismatokopeio area of Halandri (hereinafter referred to in the present document as the first relocation decision). However that decision could not be implemented, because the residents of the area lodged an annulment motion before the Council of State alleging a drop in the value of their property. On 28 June 2013, the Council ordered the non- implementation of the first relocation decision. In July 2013, the competent authorities notified the Secretary-General of the Decentralized Administration of Attica that the funding for implementing the relocation had not been approved. Consequently, the Secretary-General of the Decentralized Administration of Attica engaged in an effort to identify a new relocation area. On 31 July 2013, the environmental department in Attica inspected and recommended a plot of land — ABK 354 — located in the municipality of Megara. On 7 August 2013, the Mayor of Megara expressed his agreement and indicated that the municipality would provide water, electricity, transportation and primary health care to the Roma community. On 18 October 2013, the Secretary-General of the Decentralized Administration of Attica issued a second relocation decision designating the ABK 354 plot in the municipality of Megara as the new relocation site, upon fulfilment of the conditions established in the relevant legislation.34
The State party submits that even though the 1996 demolition orders are final and remain in force, no concrete practical measures have been taken to remove the authors from their current location. The State party therefore considers that the Committee’s request to prevent the authors from becoming homeless has been fulfilled.
The State party also considers that, as the authors have not been evicted, their allegations relating to a violation of article 7 of the Covenant are ill-founded. It further considers that the authorities’ abstention from implementing the demolition orders until a relocation site is found cannot be considered as an “incitement” to stay in the settlement. It submits that the authorities have taken several actions to improve the living conditions therein, including cleaning, removal of debris, and refuse collection. The State party informs the Committee that between 2002 and 2009 a housing loans programme for Greek Roma was implemented and that some of the inhabitants of the settlement benefited from it. However in 2007, the first author sent a letter to the Ministry of the Interior indicating that the families who had had their loans approved would not move from the settlement until all the families who applied had their loans approved. The State party considers that such an “all or nothing” position cannot be approved and concludes that the authors’ allegations under article 17, read independently or in conjunction with article 2, and under article 23, should also be held to be unsubstantiated.
In relation to article 26, the State party considers that the authors have not been victims of discrimination: the authorities have made sustained efforts to identify and designate suitable accommodation to relocate them to, and the delays in finding it are not linked to the authors’ ethnic origin but rather result from the challenges faced by the authorities. Additionally, the non-enforcement of the demolition orders demonstrates that the State party has taken into account that the Roma are a vulnerable social group, whose housing needs should be adequately addressed. The loan programme is also a special measure that supports the Roma community, including the authors. The State party therefore concludes that article 26 of the Covenant has not been breached.
The State party reiterates that the communication is inadmissible due to the authors’ lack of locus standi. It indicates that they did not elaborate on the distinction between communications submitted by individuals and those submitted by legal persons, and that according to the Committee’s jurisprudence, communications submitted by legal persons are inadmissible. The State party also reiterates that the authors did not exhaust all available domestic remedies, and rejects the authors’ argument that the non-execution of the decisions of 1995 and 1996 created a “legitimate expectation” that they would not be evicted, because an executable decision can always be enforced. Authors’ comments on the State party’s observations and authors’ further submissions
In their comments dated 3 February 2014, the authors submit that the State party is not following the two-way approach it described: on 8 November 2013, the Secretary- General of the Decentralized Administration of Attica issued a new demolition order, to be carried out on 25 February 2014, even though no relocation had been decided upon. The State party did not refer to that decision in its observations, and the authors were informed thereof only on 10 January 2014. The authors also submit that the second relocation decision, of 18 October 2013, was taken without prior consultation with the community, which was informed on 25 November 2013 that it had been taken.
The authors submit that the State party did not inform the Committee that the Mayor of Megara had given his consent for relocation to the ABK 354 plot of land for the Megara Roma community but not for the Halandri Roma community. Additionally, the plot of land is located in an isolated area outside of the inhabited urban area of Megara, at the top of a mountain. The relocation decision is aimed at keeping members of the Roma community away from urban areas and constitutes an “apartheid decision”. On 13 December 2013, the Secretary-General of the Decentralized Administration of Attica issued a new decision indicating that although the Megara and Mandra authorities had opposed relocation of the Roma community to the ABK 354 plot of land, the relocation decision was nevertheless upheld.37
On 24 December 2013, the authors submitted an administrative appeal (an application for remedy) to the Secretary-General of the Decentralized Administration of Attica requesting annulment of the second relocation decision, alleging that it was unlawful because the Roma community affected and the Megara authorities had not been consulted. They requested the implementation of the first relocation decision. At the time of their submission to the Committee, the Secretary-General of the Decentralized Administration of Attica had not replied.
The authors reiterate that the State party has tried to evict them several times, without taking any measures to ensure their relocation, and that their eviction and the demolition of their homes have been avoided only thanks to the Committee’s interim measures. The authors submit that these actions illustrate the State party’s “attitude” towards Roma.39
Regarding the State party’s argument that article 7 of the Covenant has not been breached because they have not been evicted, the authors conclude that their eviction would therefore amount to a violation of article 7. They consider that the large budget invested in improving the living conditions in the settlement shows the State party’s approval of their presence there.
The authors also submit that adequate living conditions cannot be guaranteed just through services such as cleaning, removal of debris, and refuse collection. This investment, which involved only one operation back in 2007, is linked to a scandal, as part of the operation was based on fake documents. The authors consider that the State party’s argument concerning the loan scheme is irrelevant, as the recent relocation decisions concern all Roma living in the settlement regardless of whether they benefited from a loan or not. Additionally, after having realized that the €60,000 provided by the loan scheme would not be enough to afford adequate housing, they requested the authorities to give loans to all the families and then pool the money to relocate the settlement as a whole, as had successfully been done in other areas of Greece. The authors therefore conclude that their allegations under articles 7, 17 and 23, read alone or in conjunction with article 2 of the Covenant, are substantiated.
Regarding article 26, the authors submit that the State party did not provide any examples to counter their argument that only Roma have been forced to live in inhuman conditions for more than 12 years, due to the authorities’ delay in providing them with adequate housing. The authorities want to send them to an uninhabitable mountaintop without consulting them, and without replying to the complaints they have made to the competent authorities. The authorities give preferential treatment to other ethnically or socially vulnerable groups, while the Roma are consistently discriminated against. In this connection, the authors cite measures taken in relation to victims of earthquakes and to Greek repatriates from the former Soviet Union. Regarding the first group, they point out that the procedures for obtaining relocation are much more expeditious than those for the relocation of Roma. The fact that the central administration is in charge of it, rather than the local authorities which are more sensitive to reactions from the local population, means that the proceedings applicable to the victims of earthquakes are more effective. In relation to the second group, they indicate that one law regulates the repatriation and relocation of Greeks from the former Soviet Union, whereas multiple laws apply to the relocation of Roma. In addition, repatriates benefit from a serial of measures in terms of housing, including rental subsidies, building permits and free-of-charge plots of land, while the Roma do not, as well as from a much more advantageous loan scheme. 42
As regards the admissibility of the communication, the authors reiterate that the second author is mandated by the statutes of the association to represent all its members, and that the Roma inhabitants of the Halandri settlement collectively submitted their complaint to the Committee through their “chief”. They also reiterate that no further remedies are available to them, and note that the State party did not comment on the lack of a reply to their request of 30 April 2013 to the Athens First Instance Prosecutor for the Environment. Regarding the protection of the property rights of the owners of the land where the settlement is located, the authors submit that they have already been compensated.
On 26 September, 16 October, 26 November and 18 December 2014, the authors submitted further comments to the Committee. They claim that on 25 September 2014, 12 residents of the settlement were informed that their homes would be demolished on 30 September 2014. On that date, a demolition operation was launched, but it was cancelled due to the resistance of the Roma community and solidarity groups. On 1 October, following negotiations with the local authorities, five abandoned dwellings were demolished and the Secretary-General of the Decentralized Administration of Attica granted the Municipality of Halandri six months to relocate the families living in the 61 remaining dwellings. During this period, legal action was taken on several occasions, which included motions of annulment against the second relocation decision dated 18 October 2013, which were submitted to the Council of State by the Megara and Mandra municipalities and by the authors. The authors also submit to the Committee the authorizations of 20 residents of the Halandri Roma settlement for the I Elpida cultural association to act on their behalf. 45
The authors also indicate that on 27 September 2014, the Deputy Mayor of Halandri led a fact-finding visit to the ABK 354 plot of land to assess whether the Roma community could be relocated there. On 29 September 2014, he sent a letter to the Secretary-General of the Decentralized Administration of Attica indicating that the location was unsuitable and not ready to receive anyone: works had not been undertaken,46 the location was isolated, being 12 kilometres away from the nearest intersection, there were no schools around or any other type of infrastructure, and it was exposed to low temperatures. In addition, there were no barriers to prevent people from falling from cliffs, there were crumbling buildings and open sewage manholes and there was no connection to the electricity supply. The Deputy Mayor of Halandri therefore requested the Secretary-General of the Decentralized Administration of Attica to ensure that any relocation site complied with international and national standards on adequate housing.
On 27 October 2014, the Secretary-General of the Decentralized Administration of Attica replied, designating 16 areas in Halandri suitable for the relocation. A copy was provided to the community. On 20 November 2014, the Mayor of Halandri replied, rejecting all the areas proposed. The authors claim that they have not been consulted regarding the areas proposed by the Secretary-General of the Decentralized Administration of Attica and that they have not accepted being relocated anywhere in Attica. On 26 November 2014, the Secretary-General of the Decentralized Administration of Attica sent a letter to the Mayor of Halandri recalling that it was the responsibility of the municipality to relocate the Roma community and that the nominated areas that had been identified as possible relocation sites could be changed by municipal authorities. The letter also indicated that if the Roma community was not relocated to areas that had been identified, it would be relocated to the ABK 354 plot of land. The authors learned about this letter on the Internet. On 14 December 2014, they sent a letter to the interior and justice ministries indicating that they had visited the areas identified by the Secretary-General of the Decentralized Administration of Attica for their relocation and that they found them acceptable. Therefore, they requested that areas for relocation be selected as soon as possible, in consultation with them.
The authors also state that because they have been denied effective legal aid, they may not be able to litigate key decisions in their case. They submit that the Municipality of Halandri has not issued the documents that would allow them to access legal aid through the “benefit of penury”. They added that on 1 July 2014, they filed a request with the Athens First Instance Prosecutor to update his demolition order dated 28 May 2012 and not to send the 2014 inspection report to the tax authorities,49 in order to avoid exorbitant fines. At the time that they made their comments, the Prosecutor had not replied.
The authors reiterate that all the demolition decisions issued by the authorities contravene international and national law, as the authors have not been consulted and no effective measures have been taken to relocate them. They also reiterate that they waited for over 15 years to be provided with adequate housing and security of tenure by the State party, in breach of its international obligations. Further submissions by the State party
In its further submission dated 25 April 2014, the State party reiterates that the authors did not exhaust all available domestic remedies. It advises that on 12 March 2014, the Secretary-General of the Decentralized Administration of Attica rejected the administrative remedy submitted by the authors against the second relocation decision. It submits that the authors have not used any other remedy against that decision, even though it could be challenged before the Council of State through an application for annulment.
The State party indicates that the execution of the new demolition decision of 8 November 2013, scheduled for 25 February 2014, was postponed to 17 June 2014 by a decision of the Secretary-General of the Decentralized Administration of Attica of 19 February 2014, to allow for the demolition and relocation to be conducted simultaneously. The postponement was also caused by delays to the works due to appeals lodged by the Municipality of Megara, 50 and to some difficulties involving Megara’s department of construction and its forest service, as well as the department responsible for the rehabilitation of earthquake victims.
The State party submits that it continues to follow the two-way approach. It also states that the decision of 13 December 2013 of the Secretary-General of the Decentralized Administration of Attica, amending the second relocation decision dated 18 October 2013, was issued in order to clarify the administrative borders of the ABK 354 plot of land, shared by the Megara and Mandra municipalities. This decision fulfilled all legal requirements, and several technical preparatory measures for the relocation were taken. The Ombudsman and the Secretary-General of the Decentralized Administration of Attica consulted the Roma population affected with regard to their relocation, but the Roma population never submitted their views.
With regard to the owners of the land where the settlement is located, the State party submits that they were compensated for the State’s failure to relocate the Roma community, but their claim to regain possession of their land has not been satisfied. Regarding the authors’ request for relocation of the settlement as a whole, the State party submits that this is incompatible with the limited resources of the programme.
The State party reiterates that it invested €856,283 up until July 2013 to improve living conditions in the settlement, and that it never approved the Roma community remaining there but has taken every measure to relocate them and to return the properties to the owners. The difficulties and delays in the relocation are not related to the authors’ ethnic origin, but to the challenges faced by the authorities.
On 17 April 2015, the State party submitted further observations. Reiterating its arguments about the lack of exhaustion of domestic remedies, it submits that the communication only concerns the 20 residents of the settlement who gave their authorization to the association to act on their behalf before the Committee. It advises that the authors have filed various applications to the domestic authorities, including an application for annulment of the second relocation decision, lodged on 20 May 2014 with the Council of State. It submits that some of these applications were presented after the submission of the communication to the Committee, which therefore constitutes a parallel track of litigation.
The State party argues that the authorities have made every effort to relocate the authors, including creating a working group to register residents of the settlement. As to the authors’ claims regarding the denial of legal aid, it notes that the authors did not substantiate why the State party should provide free legal aid in administrative law cases, and the authors did not allege any violation of article 14 of the Covenant in that regard. The State party considers that the authors have failed to demonstrate a link between the alleged denial and the violation of their rights. Further submissions by the authors
The authors provided further comments on 7 June and 10 August 2015. Regarding the allegation by the State party that the authors are pursuing parallel tracks of litigation, they indicate that the State party itself launched new procedures against them after the submission of the communication to the Committee. The State party’s argument that they did not exhaust domestic remedies therefore refers to measures taken after the presentation of their complaint to the Committee. The authors also submit that there are two sets of proceedings which, though related, are different: (a) the proceedings before the Committee in relation to the attempt to evict the authors, without the provision of alternative accommodation, before the communication was submitted (2013), as well as the inhuman conditions in which they have been living for 40 years; and (b) the pending remedies before the Council of State resulting from subsequent attempts by the State party to evict them without finding an adequate alternative solution (2014). Therefore, the motions of annulment before the Council of State, which is not competent to give an opinion on the legality of the threatened eviction of the authors in 2013 or on whether the legislation of the State party complies with the State party’s obligations deriving from international human rights treaties and standards, are not related to the subject matter before the Committee.
The authors reiterate that the I Elpida cultural association is entitled to represent all its members, and that residents of the settlement have provided an authorization for its Secretary-General, Nikolaos Katsaris, to represent them. They understand that the State party has accepted that the communication is admissible in respect of the 20 persons who provided their authorizations for the association to act on their behalf. They consider that the State party continues to present unsubstantiated arguments in relation to a lack of locus standi of the I Elpida cultural association to present a communication on behalf of its members.
The authors also claim that they have followed the established procedures for requesting free legal aid and indicate that the State party has not provided any evidence of their failure to do so. Furthermore, they advise that on 21 May 2015 they filed a second application for “benefit of penury” before the Council of State in order to appeal the Athens Administrative Court of Appeal decisions denying them such benefit; however, despite the fact that the deadline for submitting the appeal mentioned is 60 days, the Council of State had not issued a decision on the matter two and a half months after their application. Further submission by the State party
On 4 March 2016, the State party submitted that the authorization given by the authors to the Secretary-General of I Elpida on 10 August 2015 is a late submission that should not be accepted by the Committee. It therefore reiterates that the communication was presented only on behalf of the 20 residents of the settlement who signed the authorizations. As regards legal aid, the State party reiterates that the authors’ claim should be held inadmissible for lack of substantiation.
The State party informs the Committee that in February 2016, the Council of State issued its judgment on the motions of annulment against the second relocation decision. The Council of State quashed the contested decision, on the grounds that the joint ministerial decision upon which it was based54 was not applicable to a population group established in a specific area, such as the Halandri settlement. The Secretary-General of the Decentralized Administration of Attica therefore does not have the competence to take any decisions concerning the relocation of the Roma. However, he holds competence for the execution of the demolition of the illegal structures, which would only take place if the rights enshrined in the Covenant were ensured.
The State party also notes that the authorities have taken measures to improve the situation in the settlement, which includes the working group created in 2014. Further cleaning was carried out in August 2015, and inhabitants had access to a communal tap, public transportation, a social clinic, a store and a regular refuse collection. Furthermore, in February 2016, the Halandri settlement was selected for the implementation of a pilot programme on Roma communities,55 and many children have enrolled at school thanks to a joint effort by teachers and local authorities.
Consideration of admissibility
Before considering any claims contained in a communication, the Committee must decide, in accordance with rule 93 of its rules of procedure, whether it is admissible under the Optional Protocol.
The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.
The Committee notes the State party’s argument that by virtue of article 2 of the Optional Protocol the first author of the communication, being an association, cannot submit communications to the Committee. It also notes the State party’s submission that the communication only concerns the 20 persons who signed an authorization for action to be taken on their behalf before the Committee. The Committee takes note of the authors’ affirmation that the Halindri Roma community is a group of individuals who claim to be similarly affected and that the I Elpida cultural association is entitled to represent all its members. The Committee also takes note of article 10 of the association’s statutes, according to which “the president of the board of directors represents the association in all its relations with authorities and courts”. Accordingly, the Committee notes that the statutes only provide the president with the power to represent the association, but not its members individually. The Committee also notes that the authors have provided the authorization given to the association by 20 persons for action to be taken on their behalf before the Committee. The Committee therefore considers that the communication is admissible with respect to those 20 persons and the second author, and that it is not precluded under article 2 of the Optional Protocol from examining the communication.
Regarding the State party’s argument that domestic remedies have not been exhausted as some remedies are pending before the domestic courts, in particular the authors’ motion of annulment submitted to the Council of State against the second relocation decision, the Committee notes that the State party has advised that the Council of State issued a decision on the matter in February 2016. The Committee also notes the State party’s argument that the authors are pursuing parallel tracks of litigation, as well as the authors’ argument regarding the existence of two sets of procedures: those related to the attempted eviction before the communication was submitted (2013), and those resulting from subsequent eviction attempts initiated by the State party after the submission of the communication (2014). The Committee notes that the communication refers to the procedures related to the demolition order scheduled to be enforced on 14 May 2013, which was issued by the State party. It also notes that the domestic authorities issued several decisions thereafter, in particular the second relocation decision of 18 October 2013, against which the authors have taken legal action. The Committee further notes the State party’s argument that the authors failed to exhaust domestic remedies as they did not challenge the eviction decisions of 1995 and 1996, which were the only executable orders. The Committee also takes note of the authors’ submission that for 17 years, the State party did not seek to enforce such orders, and that in 1999 the authorities decided to suspend the eviction so as to first relocate the authors. A distinction remains necessary as to the remedies available with regard to the 1995 and 1996 eviction decisions, and those related to the subsequent orders, which constitute implementation measures of the 1995 and 1996 eviction decisions. Taking into account the different nature of such orders, different remedies should be identified and applied. In this regard, the Committee notes that several demolition orders have been issued since those of 1995 and 1996, in particular on 4 September 2012, 26 February 2013 and 8 November 2014, and that, according to the State party, the authors did not submit a motion of annulment to the Athens Administrative Court of Appeal against the demolition order of 26 February 2013 and therefore domestic remedies were not exhausted. The Committee also notes the authors’ claim that such remedy had no prospect of success, given that the Court had declared the authors’ motion of annulment against the demolition order of 4 September 2012 inadmissible. The Committee further notes that according to the information available, no remedy has been available as regards the 1995 and 1996 eviction decisions. The Committee recalls its jurisprudence that it is only necessary to exhaust those remedies that have a reasonable prospect of success,57 and therefore concludes that there is no obstacle to the admissibility of the communication under article 5 (2) (b) of the Optional Protocol.
The Committee notes the authors’ claim that living in subhuman conditions for over 12 years because of the action of the State party, as well as the threat of being forcibly evicted, constitutes inhuman and degrading treatment, in violation of article 7 of the Covenant. The Committee also notes the State party’s affirmation that such claims are ill- founded, as there has been no eviction and measures have been taken to improve the living conditions in the settlement. The Committee notes that none of the eviction decisions have been implemented and that the authors’ allegations in that regard are general and do not explain the reasons why they consider that the conditions referred to and the threat of being forcibly evicted amount to a violation of article 7 of the Covenant. The Committee therefore considers that the authors’ claims in this regard have been insufficiently substantiated for the purposes of admissibility.
Regarding the authors’ allegations under article 14 of the Covenant, the Committee notes the State party’s argument that the authors have not substantiated their claim that the State party should provide free legal aid in administrative law cases. The Committee also notes that the authors have not provided any information in this regard, and therefore considers that the authors’ allegations of violation of article 14 are inadmissible for lack of substantiation.
As regards the alleged violation of article 26 of the Covenant, in that the State party has failed to respect the non-discrimination principle by forcing the authors to live in degrading and inhuman conditions because of a delay of more than 12 years in providing them with adequate housing, while other ethnic or vulnerable groups have received preferential treatment, the Committee notes that these allegations have not been raised before the national authorities and courts. In such circumstances, the Committee considers that this part of the communication is inadmissible under articles 2 and 5 (2) (b) of the Optional Protocol.58
In relation to the alleged violation of article 27, related to the failure of the State party to ensure the rights of the Roma community, as there continue to be insufficient permanent dwellings of an adequate standard available for the Roma population, the Committee notes that these allegations are general and do not provide any explanation as to the reasons why the authors consider that their rights under such article have been violated. It therefore considers that the authors’ claims under article 27 of the Covenant are not sufficiently substantiated for the purposes of admissibility.
Accordingly, and in the absence of other obstacles to admissibility, the Committee declares the communication admissible inasmuch as it raises concerns under articles 2, 17 and 23 of the Covenant, and proceeds with its consideration of the merits.
Consideration of the merits
The Committee has considered the communication in the light of all the information made available to it by the parties, in accordance with article 5 (1) of the Optional Protocol.
The Committee notes the State party’s argument that the Roma settlement is located on private land and that the authorities have the obligation of demolishing it in order to restore the property rights of the owners. The Committee also notes the State party’s submission that it has never approved the Roma community’s remaining in the settlement, and that it has not encouraged such behaviour but has rather followed a two-track approach consisting of making every effort to identify a suitable alternative to relocate the Roma 1382/2005, Salikh v. Uzbekistan, Views adopted on 30 March 2009, para. 6.3; and No. 2041/2011, Dorofeev v. Russian Federation, Views adopted on 11 July 2014, para. 9.6. See communication No. 2073/2011, Naidenova et al. v. Bulgaria, Views adopted on 30 October 2012, para. 13.6. community affected. The Committee further notes that the State party has taken several actions aimed at finding alternative housing for the Halandri Roma community, in particular the decision by the Secretary-General of the Decentralized Administration of Attica of 16 April 2013 or first relocation decision, and his decision of 18 October 2013 or second relocation decision. The Committee notes that these relocation decisions have not been implemented, and that the State party affirms that such enforcement would only take place if the rights enshrined in the Covenant were ensured. The Committee also notes the authors’ claim that the authorities have taken actions that are in contravention of their obligations under the Covenant, as such orders have not taken into account the needs of the people affected and no effective measures have been taken to relocate them.
The Committee recalls that the term “home”, used in article 17 of the Covenant, refers to the place where a person resides or carries out his usual occupation. In the present communication, it is undisputed that the Halandri settlement is where the authors’ houses are situated and where they have continuously resided unchallenged by the State party’s authorities for over 20 years. In these circumstances, the Committee is satisfied that the authors’ houses in the Halandri settlement are their “homes” within the meaning of article 17 of the Covenant, irrespective of the fact that the authors are not the lawful owners of the plot of land on which the houses were constructed.
The Committee must then determine whether the authors’ eviction and the demolition of their houses would constitute a violation of article 17 of the Covenant if the eviction order were to be enforced. There is no doubt that the eviction order, if enforced, would result in the authors’ losing their homes and that, therefore, there would be interference with their homes. The Committee recalls that, under article 17 of the Covenant, it is necessary for any interference with the home not only to be lawful but also not to be arbitrary. In accordance with its general comment No. 16 (1988) on the right to respect of privacy, family, home and correspondence, and protection of honour and reputation, the Committee considers that the concept of arbitrariness in article 17 of the Covenant is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. It also considers that States parties should limit the use of forced eviction through the adoption of all feasible alternatives to eviction, and should guarantee alternative housing for families affected.
The Committee notes the authors’ claims that the Halandri settlement existed unchallenged by the State party’s authorities for over 20 years before the eviction orders of 1995 and 1996, and that none of the relocation alternatives proposed by the authorities since the beginning of the eviction procedures in 1995 have been accepted by the competent authorities or been implemented. The Committee also notes that, although the State party’s authorities are in principle entitled to remove the authors, who occupy private land unlawfully, the authors’ lack of property rights over the plot of land in question was the only stated justification for the issuance of the eviction order against the community and the State party has not identified any urgent reason for forcibly evicting the authors from their homes before providing them with adequate alternative accommodation. Additionally, the eviction decisions were taken and confirmed on the basis of a decision by the urban planning authorities that the Roma housing in that area was illegal and had to be demolished, regardless of any special circumstances such as decades-old community life, or of any possible consequences such as homelessness, and in the absence of any pressing need to change the status quo. In other words, the State party’s authorities did not give sufficient weight to the various interests involved and to protecting the authors from the threat of immediate eviction.
The Committee notes that for two decades the State party’s authorities did not take any measure to dislodge the authors from the Halandri settlement. Moreover, despite the issuance of various expropriation orders since 1995-1996, the community has remained at its present location for over 10 years thereafter. While the informal occupants cannot claim an entitlement to remain indefinitely, the authorities’ failure to identify an appropriate relocation site has resulted in the authors developing strong links with the Halandri settlement and building a community life there.
The Committee also notes that, according to the February 2016 decision of the Council of State, which quashed the second relocation decision, the Secretary-General of the Decentralized Administration of Attica is no longer competent to take any decisions concerning the authors’ relocation, but can still enforce the eviction and demolition orders issued against them. It also notes that the State party has not provided any information as to which authority is now competent to take decisions relating to the relocation of the authors. They therefore remain under a permanent risk of forced eviction without secure and appropriate relocation options, and without any clarity as to their prospects in terms of housing, which amounts to a clear interference with their family life.
In the light of the long history of the authors’ undisturbed presence in the Halandri settlement, the Committee considers that, by not giving due consideration to the consequences of the authors’ eviction, such as the risk of them becoming homeless, in a situation in which satisfactory replacement housing is not immediately available to them, the State party would interfere arbitrarily with the authors’ homes, and thereby violate the authors’ rights under article 17 of the Covenant, if it enforced the eviction order.
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the State party would interfere arbitrarily with the authors’ homes and family life,61 and thereby violate the authors’ rights under articles 17 and 23,62 read alone and in conjunction with article 2 (3), of the Covenant, if it enforced the eviction and demolition orders against the authors so long as satisfactory replacement housing is not immediately available to them.
In accordance with article 2 (1) of the Covenant, which establishes that States parties undertake to respect and to ensure to all individuals within their territory and subject to their jurisdiction the rights recognized in the Covenant, the State party is under an obligation to refrain from executing the eviction and demolition orders so long as satisfactory replacement housing is not available.
Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant, and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the Committee’s Views and to have them widely disseminated in its official language.