By Nicolas Bernard, professor at Saint-Louis University in Brussels
1. There was an inevitability that an instrument as ambitious – and indeed hybrid – as the DALO, which has been in force for several years in France, would one day end up in Strasbourg and find itself faced with the various fundamental rights that it has put to the test. The recent hearing was clearly meaningful because, in its judgment of 9 April 2015, the European Court of Human Rights noted that DALO violates Article 6 of the Convention on the right to a fair trial. However, the Court exonerated it from the claim that it disregarded Article 1 of Protocol No. 1 concerning peaceful enjoyment of possessions. These two points will form the basis of this commentary. As a prelude, the following briefly explains France’s DALO.
1. The DALO
2. By 2005, France had already created a multitude of laws and legal judgments on (in one form or another) the right to housing. However, in the wake of the Scotland Act, the French State decided to pass a law on 5 March 2007 that established an enforceable right to housing. A major legislative innovation was needed to justify the adoption of another such text… and it happened in record time (with barely three months separating the presidential order and its entering into force). This innovation is well-established and faithfully embodies the enforceability that has, ever since, been attached to housing rights.
3. The DALO instrument has already had much written about it so the following will simply outline the key points.
Any applicant for social housing who does not receive "an appropriate proposal" within a fixed timeframe that is set down by the State representative of the given département has grounds to call upon a "mediation committee". This committee is composed of a balance of State representatives (broadly speaking) as well as HLM (social housing) bodies and tenant organisations. Without delay, this new mediation instrument can be called upon in one (or more) of five specific cases; when, in good faith, the applicant for social housing is without housing, threatened with eviction and not rehoused, living in transitional housing, housed in unsanitary conditions or in clearly crowded conditions (if they have a disability or at least one child under 18). After consideration, the mediation committee notes those applicants deemed to have "priority" and sends the list to the Préfet (regional representative of the French government), to the effect that housing be "urgently allocated". It is then up to the Préfet to communicate this request to a HLM body urging them to find available accommodation within a deadline set by the Préfet.
After the "friendly" phase of the process comes the contentious part: the person deemed priority who, within a timeframe of six months (for the Paris Metropolitan Region) or three months (for other regions), has still not received a "housing offer that takes into account their needs and abilities" is thus authorised to appeal to the administrative court "seeking the provision of housing as ordered". If it deems the applicant's request well founded, the court "orders the housing or re-housing of the person by the State". To emphasize the binding nature of its decision, the chief judge can combine its order with penalties; the penalty sum is set in relation to the average rent for the housing type considered appropriate for the applicant by the mediation committee. The penalty sum is currently paid to the FNAVDL (French national support fund for housing) where previously it was paid to an urban planning fund. The FNAVDL was established to finance actions supporting people deemed priority by the committee but left unhoused.
Nonetheless, and it is very important to state, the administrative court cannot pay compensation that directly benefits the household in question. To receive compensation, the household would have to take an action to establish State liability but this is outside of the DALO procedure.
2. The European Court of Human Rights judgment
a. A legal judgment must always be carried out regardless of whether penalties are paid
4. It is well known that the European Convention on Human Rights calls for the right to a fair trial (Article 6, paragraph 1). By extension, the Strasbourg Court considers that this provision also establishes the right to have legal judgments adequately carried out. It is a fact that the procedural guarantees enjoyed by all parties during the case would lose all meaning if the judgment made was not then put into practice. However, on 28 December 2010, Ms Tchokontio Happi (who lives with her daughter and son in unsanitary conditions) received a legal judgment from the administrative court obliging the Préfet to guarantee that she be rehoused. Failure to do so would lead to penalties (EUR 700 per month). When two years later no housing had materialised, Ms Tchokontio Happi went before the European Court and, at the time of the facts being examined in Strasbourg, had still not been rehoused.
The French State, when faced with this, argued that the penalty had been paid (to the urban planning fund), which "adequately fulfills the objective of carrying out the jurisdictional judgment ordering that the Préfet rehouse the claimant". As proof (of how it is supposedly "proportional" and "appropriate"), the sum of the penalty is calculated in terms of the monthly rent of the type of housing deemed adequate for the applicant. And while the applicant does not directly benefit from the compensation, it benefits those bodies responsible for increasing the availability of social housing or (since the FNAVDL became the beneficiary) to support the rehousing of families. As such, the recipient of the compensation becomes irrelevant; what does it matter if the compensation is not paid to the applicant provided that the cost borne by the State makes carrying out the legal judgment preferable to not carrying it out. This was the position of the French State.
5. This reasoning however did not convince the Court. Firstly, the penalty, which has the sole aim of forcing the State to carry out the legal judgments has "no compensatory function" for the applicant. In this case, payment of the penalty did not change anything as the administrative court's judgment was still not carried out (in other words, the woman has not been rehoused) three and a half years after the Court's judgment. This inadequacy is all the more shocking as the woman's situation should have led to her being allocated housing "urgently". The emperor (the legislator in this case) has, in a manner of speaking, no clothes (or at the very least is faced with his own limitations – and even contradictions). He gives the impression of imbuing the substantive law with a real (subjective) "right" to housing that is, moreover, enforceable. At the very least, and it is another noteworthy lesson, the instrument must be viewed solely from the perspective of the (justice-seeking) citizen in order to appreciate its true effectiveness.
Of course, the Strasbourg Court admitted that the failure of the authorities could be explained by the lack of available housing. One cannot do the impossible after all. No legal judgment has the power to create housing out of thin air. Nevertheless, this type of empirical explanation "has no valid justification", according to the Court. In other words, "an authority of the State cannot blame lack of funds or other resources for not honouring, for example, a debt arising from a legal judgment". Consequently, violation of Article 6 is proven.
With regard to monetary or material considerations, the above argument is based on case law from the same Court (in a related field – although inverted so to speak) according to which the absence of a rehousing solution does not excuse the State from enforcing an eviction notice decided by a judge. What's more, it is perhaps specific performance (rather than damages) that the Court is aiming for in doing so (as an alternative) which would certainly be a lesser evil.
6. Is it fair to conclude that by its judgment of 9 May 2015, the Court is promoting something like a right to housing (which is absent in se in the Convention)? No, for the simple reason that what is at play here is a purely procedural requirement (the enforcement of legal judgments) rather than a substantial right, unlike for example the Winterstein and Others v. France judgment of 17 October 2013. Nonetheless, it is indeed recognition in an indirect way. For example, by forcing (in the McCann judgment of 13 May 2008) the United Kingdom to have a decision with such serious legal consequences as the removal from housing determined by an independent tribunal, the Court is aiming to establish as a formally protected right, the unlawfulness of eviction without any consideration for rehousing. Generally speaking, study of the (stimulating) production that comes out of Strasbourg regarding housing rights shows that such case law can only be constructed by multiplying these mediate approaches. That is, the right to housing, and its implications, being fully understood from the perspective of prohibiting inhuman and degrading treatment (against homeless people or asylum seekers for example), or protecting the home, family life and private life, or banning discrimination. All these attributes are fully and explicitly recognised by the Convention.
b) The right to social tenancy is not an "asset"
7. It is not simply the right to a fair trial that the European Convention on Human Rights safeguards. In Article 1 of Additional Protocol No. 1, the right to peaceful enjoyment of "possessions" is decreed. This notion is surely one of the most extensive of the text and, at a minimum, in no way undermines the right to property. Recognizing the autonomous meaning, independent of the legal categories established in national law, the Court went as far as to bring in "proprietary interests". Far from being limited to physical objects, this concept can even be extended to a legal judgment granting social tenancy, as the Strasbourg Court recognised in its famous judgments on Teteriny v. Russia of 30 June 2005 and Olaru and Others v. Moldova of 28 July 2009.
Usually, the right to such social benefits is in no way included among the rights and freedoms guaranteed by the Convention. In spite of everything, a claim based on legitimate expectation to gain effective use of a particular property (which one does not own), can take on the form of a possession if it is sufficiently established as enforceable. Such was the case in the Teteriny judgment, for example. In fact, the claimant’s failure to gain enforcement, for more than ten years, of a legal judgment granting him social housing constitutes interference in his right to peaceful enjoyment of his possessions for which the government did not offer any plausible explanation.
8. In light of this case law, it was expected that the Court would likewise acknowledge a violation of Article No. 1 of Additional Protocol No. 1 in the Tchokontio case. What is astonishing is that this was not what transpired. The specific circumstances are hardly different from those of the Teteriny judgment. Granted, the "social tenancy" in force at the time in Russia allowed the claimant to hope that, in time, they could acquire the house (while this outcome is clearly more hypothetical for the HLM tenant in France, if only because alienation is subject to various authorisations). Nevertheless, the Court has refused to incorporate the right to peaceful enjoyment of possessions into the right to property.
Besides, imposing a penalty simultaneously further strengthens our sense of the "enforceable" nature of Ms. Tchokontio Happi's claim. Can it not be said that this penalty has a function that is a lot more penalizing (forcing the State to exercise due diligence) than compensatory? Does the Court not itself maintain that the "sole objective" of the penalty is to "force the State to carry out the rehousing order"? By comparison, there was no question of penalty in the Teteriny case.
What are we to think, when all is said and done, of the European Court of Human Rights' judgment of 9 April 2015? Refusing to allow (in a nutshell) budgetary considerations be used to legitimize failure to carry out a legal judgment ordering rehousing, the European Court is placing an important landmark on the road to a right to housing that is accessible to all. On the other hand, the same judgment repudiates the value of a "possession" (formally protected), and this seems to be at odds with its own case law. Even though the judgment was made against France, this element is still puzzling. Is what we are seeing here a reflection of the Court's own doubts about an instrument so vague – even precarious – as the DALO (subjective right to housing? right to legal proceedings? right to compensation? etc.).
What is certain in this case is that the Court's judgment (and that, in the end, is where its utility lies) could be used in support of applicants' moves towards social housing who, weary of waiting for legal judgments in their favour to be implemented, can apply for financial compensation off the French State. Maybe one day, the same State will revise its legislation so that the claimant (rather than a centralised and impersonal fund) can be entrusted with the compensation, (and that this will be properly enforced) … pursuant to the Tchokontio Happi judgment issued by the European Court of Human Rights.
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