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. 166.
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