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Definitions

Forced eviction”

In its General Comment No. 7, the UN Committee on Economic, Social and Cultural Rights (CESCR) defined the term “forced eviction” as “the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.”

 

International sources of law

House and home

A range of international human rights treaties directly address the issue of housing.

Article 11(1) of the International Convention on Economic, Social and Cultural Rights (ICESCR) (1966) acknowledges “the right of everyone to an adequate standard of living for himself and his family, including adequate… housing.” States Parties must take appropriate steps to ensure the realisation of this right.

The right to housing is not just a right to shelter, but rather a right to have somewhere to live that is adequate. Whether housing is adequate depends on a number of factors, including security of tenure, availability of services, facilities and infrastructure, affordability, accessibility, habitability, location, and cultural adequacy.

Article 12 of the International Convention on Civil and Political Rights (ICCPR) (1966) guarantees freedom of movement within a country, including the right to choose one’s residence. Obviously forced evictions threaten that aspect of the right.

Article 17(1) of the ICCPR states that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, or home. Article 17(2) confers the right to the protection of the law against such interference or attacks.

Regional sources of law

Article 31 of The Revised European Social Charter (1996) states that Parties undertake measures designed to promote access to adequate housing, prevent and reduce homelessness, and make the price of housing accessible to those without adequate resources.

Cases

Stanková v Slovakia (2007) was a case before the European Court of Human Rights under the European Convention on Human Rights, concerning the proposed eviction of a woman from public housing, after the death of her father, the legal tenant of the property. The relevant Municipality proposed to evict her and put her on a public housing waiting list. The European Court of Human Rights found that the eviction order breached her right to privacy, home and family life under Article 8 of the Convention.

Yordanova and Ors v Bulgaria (2012) was another case before the European Court of Human Rights under the European Convention. Bulgarian authorities were proposing to evict a Roma settlement from the outskirts of the capital, Sofia. The Roma settlement had been erected illegally in the 1960s. Their forcible removal was ordered after non-Roma neighbours had complained. The Court found that the eviction would breach the Article 8 rights of the members of the Roma community. It found that the eviction was not necessary or justified in a democratic society. The decision was also influenced by the underprivileged nature of the applicants, as well as the strong ties they had developed to the land and the community while occupying the land for over 40 years without interference.

Domestic sources of law

Australia

Under the Federal Constitution, the federal government can compulsorily acquire a person’s land (which might necessitate their eviction), but only upon the payment of just compensation under s51(xxxv). In contrast, the compulsory acquisition of land by the States is regulated by ordinary statutes, so there is no constitutional requirement of the payment of compensation. In practice, compensation is paid. See, for example, this link for compulsory acquisition of property in Victoria.

Each State and territory has legislation which regulates relations between landlords and tenants, including the circumstances of evictions. For example, in Victoria, that relationship, as well as the legal circumstances of eviction, are regulated under the Residential Tenancies Act 1997 (Vic).

Victorian Charter

Section 13 provides that a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with.

Section 17 states that “families are the fundamental group unit of society and are entitled to be protected by society and the state”. It also states that every child has the right to “such protection as is in his or her best interests”.

Section 20 provides that “a person must not be deprived of his or her property other than in accordance with law”.

Cases

Burgess and Anor v Director of Housing [2014] VSC 648 (17 December 2014).

The applicant lived in public housing and her teenage son regularly stayed with her. She had a history of substance dependence and mental illnesses and had previously served a custodial sentence for trafficking offences. She received two notices from the Director of Public Housing to vacate because of her alleged “illegal use” of the property. The applicant sought review of the Director’s decision to evict her as well as the Victorian Civil and Administrative Tribunal’s decision to make an order of possession (which would result in her eviction).

It was held that the Director's decision to issue notices to vacate failed to consider the applicant's rights to the protection of her family group and the best interests of any child affected by the decision (see s. 17 of the Charter). The Director had also failed to consider the facts surrounding the applicant's health and the significance of maintaining the rented premises for her health and wellbeing. These circumstances rendered the decision invalid.

Other Countries

Most States have adopted some sort of legislation addressing the practice of forced evictions. This is often contained in landlord-tenant legislation or general laws relating to property. For example, the Protection from Eviction Act 1977 in the United Kingdom penalises those responsible for carrying out illegal evictions or harassing tenants.

Some countries have more specific legislation, like India’s The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act (2013), which seeks to ensure a transparent and participatory process of land acquisition, and claims to provide just and fair compensation, rehabilitation and resettlement to affected persons. The Act is applicable to acquisition by the government but also to public private partnership projects and private companies, and it sets out the levels of consent required in each case.

Some States, such as the Philippines and South Africa, have constitutional protections against forced eviction. Article 26.3 of the Constitution of the Republic of South Africa provides that no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. It also prohibits legislation that permits arbitrary evictions.


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