Winterstein & Ors v. France (Application Number 27013/07) 

This case concerned the eviction of ‘gens de voyage’ or Travellers from a long-term halting site. This was justified by the French local authority as a breach of their land-use plan and owing to a need to protect the landscape of the site upon which the Traveller applicants were residing. The European Court of Human Rights found a disproportionate violation of the right to respect for private and family life and home under Article 8 of the ECHR, due to the lack of consideration of the proportionality of the eviction’s effect. Winterstein is considered a key case for the development of the right to culturally appropriate accommodation under Article 8 ECHR.

Facts:

The case concerned eviction proceedings brought against twenty-five Traveller families. In 2001, approx. 10,000 Travellers were living in 2,500 mobile homes in the French department of Val d’Oise, over 2,000 of them in the municipality of Herblay. In 2004, the municipal authorities brought civil proceedings against forty individuals, including the twenty-five Applicants, all French nationals, seeking the removal of vehicles and constructions which they alleged were illegally placed on land qualifying for protection of the natural landscape.

The Pontoise tribunal de grande instance ordered the defendants to remove all vehicles and mobile homes; that decision was upheld by the Versailles Court of Appeal. The eviction judgment was not enforced but a daily fine was running and many of the families moved out. Only four families were provided with social housing.

In 2004, work began on a road close to the remaining Applicants’ homes. This application to the ECtHR was made in 2007. Between 2008 and 2010, some Applicants applied for, but were denied, social housing. In 2012, the Municipal Council adopted a plan to create an encampment area for the families.

In complaining to the European Court of Human Rights the applicants relied on Article 8 of the Convention claiming that their eviction from the land where they had been settled for a long time constituted a violation of their right to respect for their private and family life and their home. They further relied on Article 3 of the Convention, taken alone and in combination with Article 14, and on Article 18 of the Convention taken together with Article 8.

The Court examined the complaint under Article 8:

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 well-being 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.

Issues:

Was ECHR Article 8 breached?

Article 8(2) ECHR notes that ‘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 well-being 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.’ In determining whether a situation breaches Article 8, the Court will make a determination as to whether an interference is justifiable by a public authority, in accordance with the law and necessary. Any such interference must be proportionate and pursue a legitimate aim.

The Applicants argued that the State interfered with their family and private life under Article 8. They also alleged that the government subjected them to distress and humiliation through the pressure of fines, eviction threats, various forms of harassment and refusals by the municipality, and construction machinery operation on their residence.

The Government denied having evicted anyone forcibly from the land and stated that it did not demand payment of the fine. It argued that the decisions of the Domestic Courts met the requirements of Article 8 of the Convention. They argued findings were foreseeable because the Applicants were occupying the land in breach of the regulations. It was also a result of lengthy proceedings in which the Applicants had not made efforts to reach a compromise. The Court also contended that the Court recognised the vulnerability of Travellers and imposed positive obligations (which had been considered through its planning documents) on its part, which could be limited if it guaranteed the rights of the Applicants. It also argued that the Court had considered the duration of the occupation of the land.

The European Roma Rights Center, a third-party intervener contented that caravans, sheds, and bungalows of Roma and Travellers are recognized as “homes” by law. It argued that the forced displacement without permission could engage Article 3 ECHR (inhuman and degrading treatment) in certain circumstances. It contended that the offer of alternative accommodation had to be made before the decision ordering eviction and was a precondition for the legality of that decision.

Was the Interference Proportionate?

The Applicants argue that respect for one’s private and family life under Article 8 and one’s home must outweigh land-use plans in any proportionality balancing.

Reasoning:

Interference

The Court acknowledged that the concept of “home” under Article 8 of the Convention is not limited to lawfully occupied and established premises. Factual circumstances and sufficient causal links to a specific place had to be established, as arose in the present case where the Applicants had been residing in the locality of Bois du Trou-Poulet in Herblay for many years. It observed that the government had an obligation to respect the private and family life of the Travellers and that any decisions ordering their eviction had repercussions on their lifestyle, social and family ties. The Court reiterated that the occupation of a caravan is an integral part of the identity of Travellers, even where they no longer live a wholly nomadic existence, and that measures which impact upon the stationing of caravans affect their ability to maintain their identity and to lead a private and family life in accordance with that tradition (see Chapman v. UK. § 73; Connors v. U.K, § 68; and Wells v. the United Kingdom (dec.), no. 37794/05).

As a result, even if the judicial decisions have not been enforced, the obligation on the Applicants to vacate their caravans and vehicles, on pain of a fine, was considered an interference with the right to respect for both home and private and family life.

The Court also highlighted the vulnerable position of Roma and Travellers as a minority, noting 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 (drawing from precedent in Chapman § 96, and Connors, § 84); to this extent, there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the way of life of the Roma and Travellers (Chapman, § 96, and the case-law cited therein).

In accordance with the law

The Court noted that the decisions made by the Local Authority were made under their land-use plan and planning code. Therefore, they were accessible and foreseeable and thus concluded that the interference was in accordance with the law within the meaning of Article 8.

Legitimate aim

The Court observed that the zoning of the land to protect the natural area pursued the legitimate aim of protecting the “rights of others” through preserving the environment.

Proportionality of the Interference

The Court noted that, while the Authority was entitled to remove the Applicants, they had tolerated the unlawful settlement and had not taken any steps to that end for several decades. It took the view that this fact was essential and should have been considered at the domestic level. While the occupants could not claim any legitimate expectation to remain on the land unlawfully, the authorities’ inactivity had resulted in their developing strong links with the place and building a Community life there.

The Court concluded that the principle of proportionality required that such situations, where a whole Community and a prolonged period were concerned, had to be treated as being entirely different from routine cases of removal of an individual from the unlawfully occupied property. The Domestic Courts ordered the Applicants’ eviction without analysing the proportionality of this measure. It did not weigh Applicant's arguments against the fact that the occupation did not comply with the land-use plan. It also observed that the authorities did not propose any explanation for the eviction’s necessity.

The Court stated the consequences of the Applicants’ removal and their status as a vulnerable minority and specificity as an underprivileged social group must be taken into account.

Conclusion:

The Court found that there was a violation of Article 8 of the Convention in respect of all Applicants.

In line with Article 41 of the Convention, the Court awarded Applicants who were forced to leave Bois du Trou-Poulet, abandoning their caravans together with the belongings left inside a sum of EUR 600 to 5000 depending on their circumstances. With regards to non-pecuniary damages, the Court awarded:

• €7,500 for the Applicants who remained on the land;
• €15,000 for the individuals rehoused in social housing or who had found a relatively stable accommodation;
• €20,000 for those still without long-term accommodation.

The Court also granted the Applicants EUR 5,000 in respect of legal costs.