Strasbourg, 25 March 2013                                                                      CDLR (2013)12 

                                                                                              Item E.2 of the agenda

                                                                                                                         

EUROPEAN COMMITTEE ON LOCAL AND REGIONAL DEMOCRACY

(CDLR)

 AWARENESS-RAISING OF THE HUMAN RIGHTS DIMENSION OF LOCAL AND REGIONAL GOVERNANCE

For guidance and action

Secretariat Memorandum

prepared by the

Directorate of Democratic Governance

Democratic Institutions and Governance Department

This document is public. It will not be distributed at the meeting. Please bring this copy.

Ce document est public. Il ne sera pas distribué en réunion. Prière de vous munir de cet exemplaire.

Introduction

Decision by the Committee of Ministers

At the 1156^th meeting of the Deputies, the Committee of Ministers adopted a fresh set of decisions in pursuance of the Kyiv Declaration.  Among the new activities assigned to it in this context, the CDLR has been asked “to prepare proposals to strengthen awareness raising of the human rights dimension of local and regional governance, in consultation with the Parliamentary Assembly, the Congress of Local and Regional Authorities of the Council of Europe and the Conference of INGOs”.

Are human rights a concern of local authorities?

The protection of human rights provided by the Council of Europe, in accordance with international law, is generally accepted to extend to only two types of relevant actors: states and individuals. Human rights are guaranteed in the form of treaties between states with a focus on protecting the basic rights of the individual human being. As a matter of international law, the state is in this respect the only entity of legal relevance and its institutional arrangements are to be considered a matter of its own sovereign power. It is for this reason that only states can be held to account before the European Court of Human Rights.

However, within a state several actors may be entrusted with powers and functions the exercise of which have an impact on the actual enjoyment of fundamental human rights by individuals. Local authorities, in the light of the principle of subsidiarity, are at the forefront of policy delivery with regard inter alia to participation, education, health care, housing and social inclusion. As a result, this topic is of particular interest to the CDLR for two principal reasons.  Firstly, local and regional authorities should be aware of the importance of their role in ensuring the enjoyment of fundamental human rights by those that fall under their “jurisdiction” (because their failure to “deliver” might entail the international responsibility of the state). Secondly, ministries responsible for local and regional government should reflect on the potential implications and consequences of these obligations on their relationships with local and regional authorities and with other government departments.

Following these reflections there is clearly a link between human rights (at local and regional level) and the intra-state arrangements (between tiers of government) in the field of human right policies with a view to promoting a “governance” model that cuts across government and spreads awareness of and responsibilities for human rights.

In the light of the debates held in Kyiv, and following on the Ministers’ own conclusions, the Committee of Ministers asked the CDLR to prepare proposals to strengthen awareness of the human rights dimension at local level, in cooperation with the Congress, the Parliamentary Assembly and the Conference of INGOs.

As a first step, the Secretariat requested the Registry of the European Court of Human Rights to prepare a document on current ECHR case law arising from local authority action (see Addendum). The ECtHR report shows that acts of local and regional authorities do result in violations of the European Convention on Human Rights, thus engaging state responsibility. In the Appendix, a summary is made of 3 of the cases from the above-mentioned report by the Secretariat.

This information supports the view that it would be appropriate to delineate more clearly how acts of local or regional authorities may give rise to human rights abuses before embarking on drawing up specific proposals. Also, because this concern is shared by more than one actor (the Congress, the Fundamental Rights Agency of the European Union, individual member states…) appropriate mechanisms for sharing views and developing a consistent approach are needed as well.  

Possible action in this field for the CDLR

At this stage of the work, and in the light of the outcomes of the discussion the CDLR is invited to have at this meeting, the CDLR could envisage the following approach:

-          to instruct the two CDLR rapporteurs on human rights[1] to identify, if need be with the assistance of a consultant, weak spots[2] in human rights implementation at the local level, for example, in planning and development, and in daily operations (deadline: end of June);

-          the rapporteurs, with the help of the Secretariat, could collect fresh information from the Fundamental Rights Agency of the European Union, on the Agency’s 2013 work programme and initiatives so that synergies are developed, as the case may be, and overlap is avoided (deadline: end of July);

-          the rapporteurs could oversee the preparation (by the Secretariat and the expert referred to above, as the case may be) of a preliminary document highlighting possible measures to raise awareness on the human rights dimension of local and regional governance (deadline: end of August), to be discussed in the Bureau first (September) and then with the Congress, the Parliamentary Assembly and the Conference of INGOs at a meeting that could be held “en marge” of the Autumn part-session of the Parliamentary Assembly (end of September).

The “awareness-raising package” should then be adopted by the CDLR at its Autumn meeting with a view to being transmitted to the Committee of Ministers before the end of this year.

Action required

The CDLR is invited to comment and give instructions to the Secretariat on the suggested approach to making proposals on initiatives to strengthen awareness-raising of the human rights dimension of local and regional governance.

Appendix

A summary of three cases arising from acts of local authorities

The following three cases originated in acts of local and regional authorities and led to violations of the European Convention on Human Rights, thus engaging State Responsibility. The cases were cited in a recent report prepared by the European Court of Human Rights at the request of the Secretariat, as approved by the CDLR Bureau at its meeting in February. With regard to each case’s facts and court findings, the report’s detail was very succinct, and is set out below in italics, under each Case’s heading.

The more in-depth detail has been prepared by the Secretariat. The aim is to highlight to the CDLR the utility of a more in-depth analysis of the case law for its human rights’ awareness-raising activities.

McCann v. the United Kingdom, no. 19009/04, 13 May 2008

Eviction of husband from local authority housing violated his procedural rights.

Violation of Article 8[3]

Brief résumé of the facts: Mr and Mrs McCann were joint tenants of a 3 bedroom property. In April 2001 a 3 month non-molestation order and an ouster order requiring Mr McCann to leave the house was made in court. Ten days later, criminal proceedings were brought against him, following his forced entry into the house with a crowbar, but this resulted in an acquittal, when no evidence was put forward. Mrs McCann was rehoused by the local authority in August 2001 on grounds of domestic violence. She wrote a note to the local authority saying she was giving up the tenancy. By November 2001, the McCann’s relations had improved, and Mr McCann had returned to live in the former family home, carrying out extensive renovations. In view of the size of the property, he had applied to exchange it for a smaller property, with another local authority tenant. This application was supported by Mrs McCann.

On the day Mr McCann completed his application to exchange the property, the local authority induced Mrs McCann into signing a notice to quit on the joint tenancy. Under UK law, a joint tenancy can be terminated by the signature of one of the parties to the tenancy. The local authority did not inform Mrs McCann that in signing the notice to quit she would extinguish her husband’s right to the tenancy and his right therefore to exchange the property.

Under Birmingham City Council Allocations Policy Manual, where a relationship breaks down, the person who leaves the property (in this case Mrs McCann) must sign a relinquishing form. The remaining tenant may then either be granted a new tenancy for the property or be allocated alternative accommodation. Domestic violence, however, is seen as a breach of the tenancy agreement, which can mean the perpetrator loses their home or is seen as intentionally homeless.

The local authority subsequently brought proceedings in the County Court against Mr McCann to evict him. The County Court found in favour of Mr McCann. On appeal, the Court of Appeal found in favour of the local authority. Finally Mr McCann’s application for judicial review was refused, as the judge found the local authority had acted lawfully.

Court findings: The court found the application admissible under Article 8 of the Convention, and the applicant’s allegation that his right to respect for his home had not been observed. Whether a property is a “home” is a question of fact and does not depend on the lawfulness of the occupation. In the present case, the property was the applicant’s home, despite the fact that under domestic law he had no right to continue in occupation. The effect of the notice to quit, together with the subsequent possession proceedings brought by the local authority in the County Court, was to interfere with the applicant’s right to respect for his home. Whilst the interference was in accordance with the law and pursued the legitimate aim of protecting the rights and freedoms of others, notably the local authority’s right to regain possession of a property, and rights of intended beneficiaries of the statutory housing scheme, the interference was not proportionate to the aim pursued. The local authority gave no consideration to the applicant’s right to respect for his home when it chose to bypass the statutory scheme by requesting Mrs McCann to sign a common law notice to quit. Had the local authority sought repossession under the Housing Act 1985, the Court would have had the opportunity to determine the proportionality of the interference. As the facts stood, neither the subsequent possession proceedings brought in the County Court, nor the judicial review proceedings, provided this opportunity. In the County Court, proportionality could only be examined in exceptional cases, which in the present case there were none, and judicial review extends only to examining the lawfulness of the local authority action, which in the current case was lawful. The applicant was dispossessed of his home, without the possibility of the proportionality to be examined by a court. There was thus a violation of Article 8, owing to the lack of procedural safeguards.

K and T v Finland, no 25702/94, 12 July 2001

Taking of children into public care, failure to take adequate steps towards a possible reunification of the applicant’s family.

Violation of Article 8 (see footnote 3 above)

Brief résumé of the facts: The applicants were a mother (K) and her partner (T). K had four children, two of whom were the children of her partner. K was diagnosed as suffering from schizophrenia, for which she was often hospitalised, sometimes for periods as long as 3 months. A previous partner and father of her first child had custody of the first child (X). In 1993, her second child, her son (M), was placed in a children's home by the Social Welfare Board, and when her second youngest child (J) was born, she was immediately placed in provisional public care. The applicant father was then informed by the Social Welfare officials that he had to break off his relationship with the applicant mother if he wished to keep his daughter (J). This he did not do, and indeed the couple went on to have a 2nd child (K’s 4th child), ‘R’, born in 1995. R remained with parents K and T, following a psychiatric assessment of K as capable of having custody of R. In 1994 the two children (M and J) were placed in a foster home, with both applicants' access restricted to one monthly visits under strict supervision (for instance, under the third care plan (November 1997 – December 1998), the applicants were allowed a monthly visit of 3 hours on the premises of a school). The care plan was revised several times and restrictions on access were continued for the indefinite future. All appeals against these orders failed.

The applicants complained that they had suffered a violation of their rights to a family life and to effective redress for this violation before the national authorities under Article 13.

Court findings: The care order placing J in public care immediately after her birth infringed Article 8.  Although national authorities enjoy a margin of appreciation in assessing the necessity of taking a child into care, the Court considered that the reasons adduced to justify the care orders were not sufficient and that the methods used in implementing these decisions were excessive. The taking of a new-born baby into public care at the moment of its birth is an extremely harsh measure. It was incumbent on the competent national authorities to examine whether some less intrusive interference into family life was possible. The reasons must be extraordinarily compelling before a baby can be physically removed from the care of its mother, against her will, immediately after birth, as a consequence of a procedure in which neither she nor her partner has been involved. The measure was thus disproportionate.

As for the failure of the authorities to allow reunification of the family, the Court held there was a lack of any effort on the part of the authorities seriously to consider the termination of public care, despite evidence of an improvement in the situation which had led to the care orders. The Grand Chamber held that a care order should be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and that measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child. It was recognised that the authorities had enquired into whether the applicants would be able to bond with the children, but this did not amount to any serious or sustained effort towards family reunification, such as could reasonably be expected for the purposes of Article 8.2 of the ECHR. The restrictions and prohibitions imposed on the applicants’ access to their children, far from preparing a possible reunification of the family, rather contributed to hindering it.

Öneryildiz v Turkey, no 48939/99, 30 November 2004

Death and destruction of a house, caused by an explosion at an industrial site under the authority and responsibility of a city council.

Violation of Articles 2 [4] […] of the Convention and Article 1 of Protocol 1 [5]

Brief résumé of the facts: The applicant, Masallah Öneryildiz, lived in slum housing with his 12 relatives on land near a rubbish tip used by 4 local councils, under the authority and responsibility of the Istanbul City Council. The housing had been built without authorisation. However, in 1989, a case brought before the Üsküdar District court against the Ümraniye District Council by 2 other inhabitants of another similar slum area established near the tip showed the inhabitants paid local council tax for their property and water and electricity bills. They had also been invited by the Council to make an application to regularise their title to the property.

On 28 April 1993, the rubbish tip exploded owing to a build-up of methane gases, killing 39 people, including 9 of the applicant’s relatives.

Two years previously, in May 1991, an expert report prepared at the request of the Üsküdar District Court, following a referral of the matter by Ümraniye District Council, highlighted that no measures had been taken at the tip to prevent an explosion of this kind (generated by decomposing refuse), and that if an explosion ensued, damage to the nearby slum housing would be very substantial. In early June 1991, 3 of the Councils applied to have the expert report set aside, arguing it had been drawn up without their knowledge and contravened the Code of Civil Procedure. These proceedings were eventually discontinued. A few days later, the Prime Minister’s Environment Office ordered, on the basis of the report, that measures be implemented to rectify the situation. The Mayor of Ümraniye applied to the Üsküdar District Court for temporary measures to prevent the City Council and other neighbouring councils from using the tip. The Istanbul City Council’s representative opposed the request stating that the City Council had plans to redevelop the site and the first contract had already been awarded.

Following the explosion, criminal and administrative investigative proceedings were carried out, and the mayors of Ümraniye and Istanbul councils were brought before the courts. But the criminal proceedings were aimed at establishing whether the authorities could be held liable for negligence in the performance of their duties, and not for the deaths that had occurred. Both mayors were convicted and fined 160,000 Turkish liras and sentenced to the minimum three-month term of imprisonment under the Turkish criminal code. Their sentences were later commuted to fines, and the enforcement of these fines was subsequently suspended.

The applicant brought an action for damages for himself and his three surviving children, holding the authorities liable for the death of his relatives and the destruction of his property. In November 1995, the authorities were ordered to pay the applicant and his children TRL 100 000 000 (€ 2077) for non-pecuniary damage and TRL 10 000 000 (€208) for pecuniary damage.

Court findings: Responsibility borne by the State for the deaths, violation of Article 2:

Violation of Article 2

Since the Turkish authorities had known or ought to have known that there was a real or immediate risk to persons living near the rubbish tip, they had had an obligation under Article 2 of the ECHR to take any measures necessary to protect those individuals, especially as they themselves had set up the site and authorised its operation. Istanbul City Council, however, had not only failed to take the necessary urgent measures but had also opposed any attempts to bring the tip in line with the standards applicable. Furthermore, the local authorities could have installed a gas-extraction system at the tip before the situation became fatal, but had not.

The Government could not absolve itself of responsibility because the applicant had acted illegally in settling by the rubbish tip, since State policy had encouraged integration of slum areas into the urban environment. Moreover, the council had levied council tax on the applicant and provided him and other inhabitants with paying public services.

The Government had not shown they had taken steps to inform the slum inhabitants of the risks they were running. But even if they had respected this right to information, the lack of practical measures taken to avoid the risks to the slum inhabitants' lives would still have engaged the State’s responsibility.

In conclusion, the regulatory framework applicable in the present case had proved defective in that the tip had been allowed to open and operate and there had been no coherent supervisory system. That situation had been exacerbated by a general policy which had proved powerless in dealing with general town-planning issues and had undoubtedly played a part in the sequence of events leading to the accident. The Court accordingly held that there had been a violation of Article 2.

Responsibility borne by the State as regards the nature of the investigation:

The criminal proceedings that had followed the accident were inadequate and merely aimed at establishing whether the authorities could be held liable for negligence in the performance of their duties, rather than for the deaths that had occurred. Where the negligence of state officials or bodies goes beyond an error of judgment or carelessness and they are not subsequently charged or prosecuted with a criminal offence, this may amount to a violation of Article 2, irrespective of any other types of remedy available. The national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished.

Violation of Article 1 of Protocol No. 1

The Court rejected the Government's argument that the Turkish authorities had refrained on humanitarian grounds from destroying the applicant's house. The positive obligation on the authorities under Article 1 of Protocol No. 1 had required them to take the practical steps which the Court had already indicated to avoid the destruction of the dwelling.

Admittedly, the applicant had been able to acquire subsidised housing on favourable terms, but any advantages thus obtained could not have caused him to lose his status as a "victim", particularly as there was nothing in the deed of sale to indicate any acknowledgment by the authorities of a violation of his right to the peaceful enjoyment of his possessions.

The Court further noted that the compensation which the Turkish courts awarded the applicant for pecuniary damage had still not been paid even though a final judgment had been delivered.

The Court accordingly held that there had been a violation of Article 1 of Protocol No. 1.