ECtHR: No Violation in Slovenian Roma Families Access to Water
Posted: 25 Mar 2020 03:26 AM PDT
European Court of Human Rights Building
In a controversial new judgment, the European Court of Human Rights (ECtHR)
has found that Slovenia did not violate its positive obligation to provide
access to drinking water and sanitation for Roma communities living in
informal settlements. [ECtHR Press Release] In Hudorovič and Others v.
Slovenia, a group of Slovenian nationals of Roma origin alleged that the
Slovenian government failed to provide adequate access to drinking water
and sanitation to the Roma community. See ECtHR, Hudorovič and Others v.
Slovenia, nos. 24816/14 and 25140/14, Judgment of 10 March 2020. While the
Court acknowledged that it is “necessary to take into account the
vulnerable and disadvantaged position of the Roma population” in Slovenia,
it clarified that in “socio-economic matters” a State enjoys a wide margin
of appreciation. See id. at paras. 131-142, 144. In this case, the Court
considered whether Slovenia had met its positive obligation to provide
access to basic utilities (such as safe drinking water) within the meaning
of Article 8 of the European Convention on Human Rights, and concluded that
the State had not violated the Convention given that the applicants failed
to demonstrate that the State’s “alleged failure” to provide safe drinking
water “resulted in adverse consequences for [their] health and human
dignity.” See id. at paras. 158-159. In 2016, Slovenia became the first
European country to make access to drinking water a fundamental right, but
human rights groups argue that Roma communities in Slovenia continue to
lack access and consider this “evidence of the discrimination that Roma
continue to experience.” [ERRC; Amnesty International]
In March 2015, the applicants – a father and son of Roma origin living in
the Goriča vas settlement, which consisted of wooden huts without access to
plumbing or sewerage, and a Roma family of 14 who obtained water from a
fountain that was almost two kilometers away from their home in the
Dobruška vas 41 settlement – submitted two separate complaints to the
ECtHR, which were later joined by a section of the Court after determining
that both alleged similar facts and substantive violations of the
Convention. See ECtHR, Hudorovič and Others v. Slovenia, Judgment of 10
March 2020, paras. 1, 5, 12, 24, 77. The complaints alleged that the State
had not met its obligations to provide the applicants with adequate access
to drinking water and sanitation, in violation of articles 3 (prohibition
of torture, inhuman or degrading treatment), 8 (respect for private life),
and 14 (prohibition of discrimination) of the Convention.
Slovenia challenged the admissibility of the complaints on various grounds,
arguing that they should be considered “an abuse of the right of
application” under Article 34 of the Convention. See id. at para. 78. In
particular, Slovenia argued that none of the applicants could be considered
victims because they had in fact had “access to drinking water and
sanitation facilities.” See id. at paras. 78, 97-99. The government stated
that the Goriča vas settlement had a water tank that “regularly supplied
water to the residents” and that it had made an effort to relocate some of
the Roma residents to a new settlement with better sanitation facilities,
but the Roma residents had refused. See id. at para. 97. Further, according
to the government, the Dobruška vas 41 settlement had been connected to a
public water-distribution system with a septic tank since 2011, which the
applicants could have accessed. See id. at para. 98. The applicants,
drawing on reports from the UN Special Rapporteur on the human right to
safe drinking water and sanitation and the Council of Europe Commissioner
for Human Rights, argued that these measures did not provide realistic
options for them to reasonably access an adequate water supply or
sanitation and that the government’s information was “either inaccurate or
irrelevant to their personal situations.” See id. at paras. 100-103. The
Court dismissed the government’s allegation that there had been “abuse of
the right of application” and decided to address this issue at the merits
stage given that it pertains to the main disagreement between the parties:
“the interpretation of what constitutes adequate access to drinking water
and sanitation” and the scope of the State’s specific obligations to
provide adequate access. See id. at paras. 103-105.
Moreover, Slovenia asserted that Article 8 does not guarantee the right to
be provided with a home and that the allegations made under Article 8 –
mainly that living conditions without basic infrastructure to access water
and sanitation fell within the scope of the right to private life – were
“manifestly ill-founded” and should not be admissible pursuant to Article
35(3). See id. at paras. 108-109, 111. The Court clarified that Article 8
does not guarantee the right to access to safe drinking water or
acknowledge a right to a home, but also stated that “lack of access to safe
drinking water can … have adverse consequences for health and human dignity
effectively eroding the core of private life and the enjoyment of a home
within the meaning of Article 8.” See id. at paras. 111-116. Thus, the
Court admitted the complaints and decided to address whether this case
raises a private life issue under Article 8, alone and in conjunction with
Article 14, in its merits analysis. See id. at paras. 116-118.
ECtHR’s Merits Analysis
The European Court first analyzed whether the State had violated its
positive obligation to respect the applicants’ homes, and private and
family lives. See id. at para. 143. It specifically analyzed the State’s
“positive obligation to provide access to utilities, especially to a
socially disadvantaged group.” See id. The Court reiterated that States
enjoy a wide margin of appreciation with respect to socio-economic matters
and have discretion with regard to their “concrete steps aimed at ensuring
everyone has adequate access to water.” See id. at para. 144.
In this case, the Court found that Slovenia had taken steps to develop a
water supply system and provided water tanks to harvest rainwater in areas
not covered by the water supply system. See id. at paras. 145-146. While
the service required consumers to pay some of the costs associated with
water and sanitation utilities, which the Court acknowledged may impact the
ability of the Roma community to access such services, it found that
Slovenia provided the Roma community with “social benefits for their
subsistence” and implemented “affirmative action measures” to improve their
living conditions and guarantee their basic needs. See id. at paras.
145-147. The Court focused on the fact that the “applicants relied on State
support for their subsistence” and explained that they “were not living in
a state of extreme poverty,” relying on the fact that the applicants from
the Goriča vas settlement had been able to “co-finance the purchase of
the water tank and agree to bear the costs of water deliveries and
chemical toilets” and the applicants from the Dobruška vas 41 settlement
had been able to purchase land near the settlement to build a wooden hut.
See id. at para. 149. Thus, the Court concluded that Slovenia recognized
their situation as members of a vulnerable community and “ensured that they
were guaranteed a certain basic level of subsistence” via the system of
social benefits, “which was, or could have been, used, inter alia, for
improving their living conditions.” See id.
With respect to the applicants’ access to clean water, the Court found that
the applicants from the Goriča vas settlement had had access to a water
tank and, although what happened to the tank is disputed, the applicants
could have requested financial assistance from the State for another tank
or complained about their situation to the municipality. See id. at paras.
150-151. The Court concluded that the State had provided an arrangement
that the applicants could have used to access safe drinking water. See id.
Similarly, it found that the applicants from the Dobruška vas 41 settlement
could have connected to the water supply system that the State had
installed for individual households to access water. See id. at para. 152.
The Court did not find convincing the applicants’ claim that they could not
join due to obstruction by their neighbors. See id.
While the parties submitted different versions of the facts as to why the
applicants from both settlements could not access water, the Court did not
find the competing facts significant, stating that “[b]e that as it may,”
the applicants failed to “convincingly demonstrate” that the State’s
“alleged failure to provide them with access to safe drinking water
resulted in adverse consequences for health and human dignity.” See id. at
paras. 151-152, 158. The Court concluded that the State’s “positive
measures did provide the applicants with the opportunity to access safe
drinking water” and that the State accounted for the “disadvantages
suffered by the applicants as members of a vulnerable community.” See id.
at paras. 153, 156. Ultimately, the ECtHR held that while the State has an
obligation to “address the inequalities in the provision of access to safe
drinking this cannot be interpreted as including an obligation to bear the
entire burden of providing running water to the applicants’ homes.” See id.
at para. 156.
With respect to the applicants’ access to sanitation or sewerage, the Court
found that the State did not take steps to address this situation, but
noted that Slovenia’s public sewerage-system infrastructure was limited and
that the State enjoyed “wide discretion in the prioritisation of resources
for urban planning.” See id. at para. 157. The Court considered that
imposing a burden on the State to address the applicants’ specific
situations could be justified if the situations posed a “serious risk to
health,” but in this case the Court concluded that the applicants’
complaints of “frequent diseases” were unsubstantiated. See id. The Court
also noted that the applicants did not allege or argue that they could not
install their own septic tanks or employ alternative solutions to the
public sewerage system. See id.
The Court held that the State measures that were implemented took into
account the applicants’ vulnerable situation and satisfied the Article 8
requirements. See id. at paras. 158-159. Thus, the Court stated that “even
assuming that Article 8 is applicable in the instant case,” there was no
violation. The Court did not specifically address the applicability of
Article 8, and did not find it necessary to address the applicability of
Article 14. See id. at paras. 159-162.
The Court also held that the applicants did not demonstrate that their
situation amounted to inhuman or degrading treatment under Article 3 of the
Convention. See id. at paras. 163-167. It concluded that “even assuming
that the alleged suffering reached the minimum threshold required under
Article 3,” there was no violation because the State’s positive measures
had “provided the applicants with the opportunity to access safe drinking
water, irrespective of how and whether it was realized.” See id. at para.
For more information on Slovenia’s human rights obligations, the European
Court of Human Rights, the European human rights system, or economic,
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