Mean Streets: a Report on the Criminalisation of Homelessness In

COORDINATED BY Guillem Fernàndez Evangelista EDITED BY Samara Jones

A Report on the Criminalisation of Homelessness in Europe

Criminalising and penalising homeless people for carrying out life-sustaining activities in public because there is no where to go is a problem across the EU. Policies and measures, be they at local, regional or national level, that impose criminal or administrative penalties on homeless people is counterproductive public policy and often violates human rights. tion

Housing Rights Watch and FEANTSA have published this report to t on the C r imin a lis draw attention to this issue. This report brings together articles A Repo r of H omelessness in E u r ope from academics, activists, lawyers and NGOs on the topic of human rights and penalisation. Divided into three main sections, the report provides an important theoretical and historical background, before highlighting examples of penalisation across A REPORT ON THE CRIMINALISATION the EU, and finally suggesting measures and examples on how OF HOMELESSNESS IN EUROPE to redress this dangerous trend.

Cover design : Genaro Studio [Lyon - France]

European Federation of National Associations Working with the Homeless AISBL Fédération Européenne d’Associations Nationales Travaillant avec les Sans-Abris AISBL 194 Chaussée de Louvain - 1210 Brussels - Belgium Tél. +32 2 538 66 69 - Fax +32 2 539 41 79 - [email protected] - www.feantsa.org ISBN: 978-2-8052-0218-6

FEANTSA is supported financially by the European Commission. The views expressed herein are those of the authors and the Commission is not responsible for any use that may be made of the information contained herein.

List of Experts and Correspondents

Guillem Fernàndez Evangelista Associació ProHabitatge, Government and Public Policy Institute (IGOP), Autonomous University of Barcelona Samara Jones Coordinator, Housing Rights Watch, Policy Officer, FEANTSA, Brussels Quim Arrufat Ibañez BA in Political Science and Public Administration at Autonomous University of Barcelona Łukasz Browarczyk Research and Publications Coordinator in Pomorskie Forum na rzecz Wychodzenia z Bezdomności Jaime Burton Doughty Street Chambers Carme Fortea Busquets Head of the Department of Attention to Vulnerable Persons. Quality of Life, Sports and Equality Area. Barcelona City Council Padraic Kenna Faculty of Law, National University of Ireland, Galway Antonio Madrid Pérez Coordinator of the ‘dret al Dret’ project, Faculty of Law University of Barcelona Lucie Martin Sociologist, Research Coordinator at Diogènes Balint Misetics The City is for All and Lecturer, College for Advanced Studies in Social Theory (Budapest) Eoin O’Sullivan School of Social Work and Social Policy, Trinity College Dublin Cory Potts Criminologist, MA candidate, Université Libre de Bruxelles Iñaki Rivera Beigas Observatory of the Penal System and Human Rights, Faculty of Law, University of Barcelona Louis Schetzer Policy Officer, Homeless Persons’ Legal Service, Sydney, Australia Marc Uhry Fondation Abbé Pierre Rhone-Alpes, Lyon

Table of contents � 5 11 31 15 53 75 9 nieks, Council of Europe Commis- ž Applying Human Rights Based Approach Homelessness, to Dr Padraic Kenna and Guillem Evangelista Fernàndez homelessness look like? responsibili- and homelessness of visions Penal Martin Lucie and Potts Cory – Belgium in zation sioner for Human Rights Foreword Raquel Rolnik, Rapporteur on adequate United housing, and Maria Magdalena Nations poverty extreme Sepúlveda on Rapporteur Special Nations Special Carmona, and human rights United Fernàndez Guillem Homelessness, of Penalization Evangelista Foreword Nils Mui ...... Table of Contents

PART I: Chapter 1: executive Summary theoretical FRAMEWORK PART II: hat does penalising w Chapter 3: Chapter 2:

6 � Table of contents Chapter 13: Chapter 12: legalinitiatives Chapter 11: Chapter 10: Chapter 9: Chapter 8: PART III: Chapter 7: Chapter 6: Chapter 5: Chapter 4: ...... h Ct i Fr l fo te ua Rights Human the Based Approach -BalintMisetics from All For is City The Fernàndez Evangelista of homeless people - Quim Arrufat and Guillem Ombudsmen and NGO’s: Defending the rights social in living people for exclusion- AntonioMadridPerez rights legal to Universitythe rolepromotingof access The in Legal Service-Louis Schetzer Persons’ people Homeless The - homeless Sydney,Australia in of needs legal Addressing Carme Fortea Busquets – coordination Inter-administration of model A Airport. Barcelona the at people Homeless and Evangelista Fernàndez Strategies Guillem Europe, in Rights Housing Homelessness Prevention, Political measures GOOD PRACTICES O’Sullivan andGuillemFernàndez Evangelista Eoin prison, and Homelessness Penalisationof Fernàndez Guillem Evangelista Jones, Samara Kenna, to Marc- housing Uhry, PadraicDr Burton, Jamie access and Homelessness of Penalisation Balint Misetics - Hungary in homelessness of Criminalisation rmnlsto o hmlsns i Pln - Ł Poland in homelessness of Criminalisation ukasz Browarczyk

203 159 133 213 191 181 171 13 11 101 91 Table of contents � 7 221 235

NGO’s, NGO’s, legal services and strategic litigation. Fighting against homelessness from a Human Rights Based Approach, Antonio Madrid Perez Evangelista Fernandez and Guillem Beiras Iñaki Rivera ...... Chapter 14: Chapter ePilogue

Preface � 9 Preface to Preface Report: FEANTSA of Homelessness Penalisation Rights and Human in Europe The state has an internationally recognised obligation to ensure everyone’s rights to adequate housing and an adequate standard of living. has Everyone the right to also is housing adequate to right The dignity. and peace security, in somewhere live an inseparable condition for the enjoyment of many other human economic rights. and cultural Social, rights, such as the rights to food, water, health, education and work, cannot be fully exercised without a home. The same can and family life. civil and political rights such as the rights to privacy also about many be said Laws, Laws, regulations and being introduced during administrative an economic crisis measures that has unemployment resulted penalising in and record poverty, levels driving of homelessness entire families to are measures are often motivated by the desire to reduce the visibility of live homelessness on the streets. Such and poverty and hide them as social issues. migration The are part of the same criminalisation trend. A conscious policy of of exclusion is applied begging to and mask the unwillingness of the state to assume its responsibilities for upholding the human rights of all of its residents. The penalisation of homelessness reflects deep-rooted prejudices about homeless people and ignorance of the daily deprivation and Being discrimination they suffer. homeless is not an individual choice, but a situation in public spaces constitutes a huge risk to rough Living and sleeping disadvantages. resulting from a variety of one’s health, social well-being and Everyone, security. including homeless people, affordable. and available and safe housing if it were adequate prefer would A growing number, of people across housing. Europe Many have are nowhere to experiencing live and a sleep, in great doorways, squats, need abandoned buildings, parks for and other places unfit for with human people habitation. children, Among those street facing violence, domestic of victims Roma, are difficulties major security without tenants persons, displaced internally migrants, refugees, disabilities, of the labour market. segments and people in the lowest 10 � Preface the authorities should extend a hand to encourage homeless people to claim the rights they are entitledto. claim to people homeless encourage to hand a extend should authorities the to amount people discrimination on the basis homeless of economic and social status. Rather than raising a fist, target specifically that laws Repressive and povertydeprivation. alleviate to efforts serious to obstacles new creates homelessness of penalisation the home, a without people stigmatising and punishing to addition In elimination of the conditions that cause and the perpetuate towardspoverty work and should social governmentsexclusion. persons, homeless criminalising of Instead Council ofEurope Commissioner forHumanRights Nils Mui ž nieks  forword � 11 Foreword Instead of using public funds to assist these families and protect their human rights, rights, human their protect and families these assist to funds public using of Instead behaviour. their for them penalize to operations costly out carrying instead are States such regulations often Absurdly, impose fines that homeless persons are unable to Criminalization pushes pay. homeless persons further and further into poverty and social exclusion, from which they simply cannot escape without holistic long-term and State homelessness strategies. reduction poverty These laws, police practices and zoning regulations on the use of public space are being implemented in a context in which the economic and subsequent a forced austerity number growing have measures of families on-to the financialcrises and In cases, been out streets. many people driven of who their have homes as a result now being penalised once again. policies, are housing finance of irresponsible Individuals who live on the street are increasingly finding that daily life-sustaining activities can result in criminal sanctions and expose them to abuse, harassment, violence, corruption and extortion both individuals by private and enforcement law officials. Across Across Europe, we see homeless persons cast out of city centres and penalised for certain behaviours and actions that they have no choice but to perform in public: sleeping, sitting, lying, littering, lodging, urinating, camping or storing belongings in public spaces. This excellent publication from FEANTSA is extremely timely. As United Nations Special Rapporteurs on extreme poverty and human rights, adequate and housing and on non-discrimination in the this right context, we to have watched with concern in recent years as various States in Europe and beyond have implemented measures penalising or criminalising homeless persons. The contributions to of these alarming measures. this outline many volume 12 � forword and views ofhomeless andinadequatelyhoused persons. tackling the root causes of poverty and homelessness, taking into account the needs actorspublic lawtowardsall standardsrights guide and human should emphasises, of framework overview and good practices, rights the book will be a crucial tool human moving detailed forward.relevant As it the also a of but providing homelessness, of In penalisation the issue. only not this on debate public and scholarship, towards advocacy significantly contribute will which FEANTSA, from volume they are pursuing. Therefore, we warmly welcome this insightful and comprehensive path unjust destructiveand the abandon to States push to urgentneed an Thereis therefore lessdeservingofrespect, rightsandpublicresources. and homelessness, instead and paint the most povertydisadvantaged people as authors create of their own misfortune that and factors systemic the addressing from makers policy poverty.preclude Prejudicesin living persons and persons homeless by used politicians and language sections of the hostile media to justify and discriminatory public policies stigmatising towards in rise the alarm with noted Wehave policy- makersmany andpublicofficialsneed tobe reminded ofthisfact. Unfortunately,society. of members other all to rights in intrinsic dignity,and in value equal are persons homeless that saying without go should It be more inlinewithStates’humanrightsobligations. policing, community.Moreover,wouldhomeless this the of for solutions housing devising costs on high extremely the given spent better incarceration,availablebe resourceswouldand prosecution detention, sense: economic makes also This should notbepunishedforthatsituation. to housing public parks adequate and bus stations. One does not choose to live affordable, in poverty, safe, and therefore prefer would persons homeless course, Of shelter. family,need the and protectionof theyarepoor and because personalsecurity just Homeless persons should not be deprived of their basic rights to liberty or to privacy, any in proceeding againstthem. arms of equality enjoy to remedy,or or justice seek to able be to unlikely poverty are address, in resources persons homelessness fixed living few and no and undermining the right to an adequate standard of physical and mental health. With but these measures may also have serious adverse physical and psychological effects, eat or drink. Not only inplace, can this constitute a violation housing of the right andlow-cost to adequate personshousing, living in poverty and homelessness are services left with no viable place to infrastructure, sleep, sit, public insufficient With their of basis the socio-economic status, on which is clearly persons prohibited in international against human rights law. discrimination to amounts measures these cases, many In concerns. rights human of series whole a up bring practices These forword � 13 and human rights Geneva, June 2013 Geneva, Raquel Rolnik 

poverty on extreme Special Rapporteur Special Rapporteur on adequate housing Special Rapporteur Maria Magdalena Sepúlveda Carmona  Maria Magdalena Sepúlveda Carmona and on the right to non-discrimination in this context and on the right to non-discrimination in this as a component of the right to an adequate standard of living, standard as a component of the right to an adequate As FEANTSA’s campaign slogan says, “Poverty is not a crime, it’s a scandal.” Indeed, scandal.” a it’s crime, a not is “Poverty says, slogan campaign FEANTSA’s As in relatively wealthy European countries, the mere existence of homelessness is a shameful scourge. Furthermore, discrimination, all European without countries have committed persons to respect, all for housing adequate to right the fulfil and protect as parties to the International Covenant on Economic, Social rights human and regional Cultural and Rights, international in obligations relevant other many alongside law. Homeless persons need roofs, not handcuffs; incarceration is not a solution. housing Human rights principles law, and standards must guide us in ending the vicious circle of discrimination, deprivation and endure. persons social exclusion that homeless 14 � forword Executive Summary

Criminalising and penalising homeless people for carrying out life-sustaining activities in public because there is nowhere to go is a problem across the EU. Policies and measures, be they at a local, regional or national level, that impose criminal or administrative penalties on homeless people are counterproductive and often violates human rights.

What is criminalisation and penalisation of homelessness? Definitions: Criminalisation undermines real solutions

Cities, regions and even some countries (e.g. Hungary) across Europe are using the criminal justice system to minimise the visibility of people experiencing homelessness. Some local governments are motivated by the frustrations of business owners, residents and politicians who feel that homelessness puts the safety and livability of their cities and towns at risk. These feelings have prompted governments to establish formal and informal measures and enforcement policies to “limit where individuals who experience homelessness can congregate, and punish those who engage in life-sustaining or natural human activities in public spaces.” Examples of such criminalisation strategies include the following:1

Legislation that makes it illegal to sleep, sit or store personal belongings in public spaces Ordinances that punish people for begging in order to move people who are poor or homeless out of a city or area

1. Searching out solutions – constructive alternatives to the criminalization of homelessness, United States Interagency Council on Homelessness, 2012, retrieved from: http://www.usich.gov/resources/uploads/ asset_library/RPT_SoS_March2012.pdf on 7 August 2013 16 � Executive Summary nldn te vrih o irglr irto ta afcs h lf otos f the In victims). of and perpetrators both (as options crime street to life susceptible most populations the affects that migration programmes, irregular state of oversight related the and including care, foster housing, public provision, welfare in changes understanding without trends crime understand to possible not is versa.It Trends in penal policy cannot be understood without examining social policy and vice- policy fortheoor Social PolicyandCriminalJustice–interlinkedin developed withadualemphasisonsocialandpenalregulation. being is Europe in populations “sensitive” or “dangerous” of management the that 2011).(Sepúlveda, Rights PovertyExtremeHuman on and Wacquant (2011) shows has been penalisation used by authorsof like Loïc concept WacquantThis (2001)migrants. and deporting the UN Special and Rapporteur detaining and fromplaces them public banning prisons, in people homeless putting by poverty of reminders their access to basic services and rights, and attempts blocking to obstacles rid legal the or administrative public spaces, public space in of everydayactivities visible their of criminalising the through punished are people homeless waysdifferentwhich in the describe to “penalisation” of concept the use to havechosen wereport this In The conceptof“enalisation” 2. realm ofthecriminaljusticesystem. to private security) the beyond go that (including activities and space ofsecurity public of regulation use local/regional enforce the includes also definition This incarceration. and/or fines being outcome the with often homeless, are who people of movements and activities the restrict to practices and laws of use Canada: from comes homelessness of criminalisation the of definition Another Kristy Buccieri, Street Youth Legal Services, Justice for Children and Youth, and Homeless Hub Press, Toronto,Hub Homeless Canada,2011.and Youth, and Children for Justice Services, LegalYouth Street Buccieri, Kristy and Geatz O’Grady,Stephen Toronto,Bill in Homelessness Youth of Policing The ID? Your See I Can Prohibition ofremoving items from rubbishorrecycling bins public (e.g. hygiene and activities urination) regardless ofwhetherpublicfacilitiesare available public to related ordinances health Public loitering, andpublicconsumptionofalcohol)againstpeoplewhoare homeless light, the against street the crossing (e.g. laws neutral of enforcement Selective them outofthoseareas drive to order in living are homeless are who people which in areas of Sweeps to curbthecongregation ofindividualswhoare homeless attempt an in places public in distribution food limit or ban Localthat measures 2

public the AExecutive Summary � 17 et Housing Rights Watch and FEANTSA wanted wanted FEANTSA and Watch Rights Housing 3 2006; Tosi, 2007). There are 2007). also nuances et the regarding of al. evolution the 2006; Tosi, Criminalizing Crisis: The Criminalization of Homelessness in nlchp.org/content/pubs/11.14.11%20Criminalization%20Report%20&%20Advocacy%20Manual,%20 U.S. Cities, http://www. NLCHP, 2011 FINAL1.pdf This report was coordinated by experts across the Guillem European Union to contribute to Fernàndez articles. Samara Jones planned Evangelista who contacted and designed the structure of the book and who provided editorial support from Format to respond to the fears, discussions and questions posed by the specific experiences experiences specific the by posed questions and discussions fears, the to respond to Union. European in the lives in their everyday of homeless people and problems 3. A “culture of criminal exceptionality and the emergency”, anti-terrorist legislation this that which attacks, restored the terrorist concept was of the 2001 “enemy”, the developed is following also atmosphere now in heady the In Europe. in apparent meant was it and (terrorism) phenomenon particular a combat to born was “culture” to be while Yet, temporary. the “emergency” has faded over the past decade, the policies and repressive extra police remain in powers force and been have extended is worrying more Even enemy. the as again once portrayed immigrant, foreign the to (Aranda spheres other to extend now attitudes and measures repressive these that There There is consensus amongst academics that increased regulation of public spaces and criminalisation of homeless people in Europe is a trend that Atlantic from has the United is States. on Where authors crossed the differ, pace and the intensity of this expansion of repressive policies Busch-Geertsema, 2001; (Wacquant, 2006; Tosi on both penal sides and system of punitive the Atlantic (2006) Ocean. Iñaki Rivera crossed have policy criminal to approaches two years, 30 last the over how explains of the (Young, “policies many of intolerance” and spawned Europe in Western over based is which Order”, and “Law of tradition Anglo-Saxon and American The 1999). on statistics and the “Broken Windows”, and “Zero “Three Tolerance” Strikes and in Chapter 7. Eoin O'Sullivan is discussed by Out” approaches, Are You criminalisation of nature and extent the examines that report European first the is This of homelessness in of criminalisation monitors Europe. regularly that States United We the in were Poverty inspired Homelessness, by the National Law campaigns and measures criminalising of Center repeal the for advocates and homelessness on people. homeless for rights human for other words, welfare and criminal justice are two modalities of public policy toward toward policy public of modalities two are justice criminal and welfare words, other reformed—together. be analysed—and must they and so the poor, About this report , 2005) including health care and social policy. and social policy. including health care al., 2005) 18 � Executive Summary itr o hmn ihs n te nedpnec bten cnmc sca and social economic, between interdependency the and rights human of history creating and delivering all policies––particularly social policy. The report reviews the This report reinforces the importance of taking a human rights-based approach when of violations these rights. systematic allow that norms social and laws the entrenches further factors, other and poverty their on based people, homeless against 25). Discrimination (Article rights voting and 21) (Article assembly of freedom to right the 23), and 17 (Articles family the to right privacythe to 17), right (Article the 9), (Article degrading treatment (Article 7 ICCPR), the right to liberty and security of the person involuntary status and violate individual’s rights to be free from cruel, inhuman and their for people penalise routinely policies Charter.penalisation and Criminalisation the like treaties rights International Covenant human on Civil international and Political violate Rights (ICCPR) and often the European measures Social these fact, In and penalisehomelesspeople. reduce to be undermined by local, regional or workeven national policies and rules that criminalise governments when rights, and to ensure access to evenrights and justice, their inclusive social policies might reveals, protect reportstrategies),to integratedhomelessness byimplementing (e.g. homelessness this as However, which enshrineseconomicandsocialrights. and Political Rights (ICCPR) and to the Council of Europe’s (Revised) Social Charter, Civil Covenanton International UN’s the to on havesigned States Member EU All rights; the EU has a Charter of Fundamental Rights that reinforces this commitment. EU Member States have committed themselves to protecting and promoting human Penalisation asaviolationofhumanrights social services, social accessing housing andshelters inFrance, EnglandandTheNetherlands. from penalised, prevented are often people and homeless against how discriminated examines 6 Chapter Hungary. and Poland Belgium, in activities everyday people’s penalised, homeless is of criminalisation homelessness the how including illustrate 6) to 3 (Chapters studies case Several finally and EU, the across suggestings measures andexamples forhowtoredress penalisation thisdangerous trend. of examples highlightings background, reportprovidesthe historical theoretical sections, threeand important main into an academics, from articles together brings activists, lawyers and NGOs reporton the topic of human rights and penalisation. befoundat Divided This can book. the of expert contributors beginning of the list full A Brussels. in office FEANTSA's 4. Civil andPolitical Rights, NationalLaw Centre onHomelessness andPoverty, August2013 Cruel, Inhuman and Degrading: Homelessness in the United States under the International Covenant on 4 AExecutive Summary � 19 Many Many service providers and NGOs are not used to taking a rights-based immediate the approach organisations, member FEANTSA’s including most, For work. their to with dealt are homeless is who person a of etc.) employment, food, (housing, needs first, which means that socialworkers do not usually in have time some or, cases, the knowledge to consider whether a homeless person’s rights been have violated. service providers between of collaboration examples includes interesting This report and in social Spain, NGOs example, closely NGOs and with work legal experts. For university legal clinics to pursue cases and advocate people for (Chapter the 11). In rights France, of Jurislogement homeless brings academics together and NGOs lawyers, to activists, share information and collaborate on strategic litigation. Another for valuable resource NGOs and others working with homeless people are ombuds offices as described in Chapter 12. One of the findings of thisreport is that the of development national strategies for eradicating and preventing rights- homelessness human the to are link direct good a have strategies practices homelessness how in highlights report this respect. The based approach. a Unfortunately, country that has a national strategy to eradicate homelessness may still have policies and practices that violate basic human rights. This is why awareness about criminalisation We also of found that homelessness it is is possible so for national a important. homelessness countries strategy and to cities develop programmes that that respect do and not promote have the human rights of homeless people. Building bonds a with the long-term homeless and eschewing repressive or force-based measures are crucial to developing good, human rights. that respect and successful policies effective How can policies be developed approach? and First of all, the implemented risk factors and immediate, using underlying and basic a causes human of rights-based the problems of homelessness must be assessed together and all to stakeholders build brought effective alliances. The strategies should for encourage eradicating the homelessness development of human rights because and assess they results as must well as oversee processes. Therefore, policy targets and goals should be measurable as they are basic components for programming and assessment. In fact, should the strategies ensure accountability of all and stakeholders, include the participation of the people affected by homelessness as both a means and an end. In other homeless words, people should be recognised as the main protagonists of their own development instead of being viewed as passive and services. receivers For some governments and of service this providers may mean products a radical and put into practice. developed policies are that change in the way cultural cultural rights and civil and political rights (Chapter 1). Human rights are universal legal guarantees protecting individuals and groups against actions and that omissions with interfere Human fundamental entitlements freedoms, and human dignity. rights law obliges governments and other duty-bearers to prevents do them from certain doing things others. So, and in order to rights of respect system a in anchored human are policies homeless approach), rights-based human rights (under a law. international established by obligations and corresponding 20 � Executive Summary The report setouttoassesthebroad trends inEurope andfoundthat: Findings aid, etc.). legal to appeal, to justice, to access (e.g. rights of or proceduralguarantees certain suppression outright or reduction the and penalties high disproportionately with basis, “exceptional” an on justified is punishment This depending. crime a committing of risk presumed the to due punishment on based policy criminal a is, That enemy”. the of law “criminal so-called the of application the of victims are them) Travellersof and Romasome for (or theyrights that housing indicate immigrants among the homeless population and the obstacles to development of However,policies. criminal such of target in the surge been the havehistorically Travellers’communities and Roma the and immigrants Europe, in “dangerous” populations; these of part as included usually not were people homeless past, A resurgence of the idea of “the enemy” has also emerged in recent years. In the and oftenalmostinvisible: Homelessness is not being explicitly criminalised in Europe. The process is subtle tradition andthe“culture ofcriminalemergency andexceptionality” inEurope. Order” and “Law Anglo-Saxon and American the on based policies criminal surge of the of result the are penalisation of forms three These migrants. of experiencing case people of the in visibility deportation or expulsion the detention, incarceration, through minimise homelessness and housing, like to rights access basic their hinder spaces, public from people homeless expel to measures repressive and coercive punitive, in increase alarming an experiencing is Europe l l l l l l l l from seeking help, services and recourse to justice for violation of their human rights. of violation for justice to recourse and services help, seeking from This them deter can and population authorities. homeless vulnerable already the amongst by targetedfigures authority of fear be of feelings increases not enforcement discriminatory would members community or residents other whereas sanctioned, or on’ public ‘move to asked a be may space in gathering people them homeless sanction example, and For people disproportionately. homeless target can police that means This Regulations exist of that give police (resurgenceand other authorities lawspowers of discretion. existing for punitivism) are beingimplemented. penalties tougher advocating or laws criminal new,harsh introducing on based processes criminalisation Also, the criminalization ofcertain“actions”. through identified is “perpetrator” of type a result, a way.generalisedAs a in effective less or more made be can it citizenry,whether regardlessof the to “security” of message conveya levelto discursive(political) the at element “symbolic” a as used being is law criminal that signs are There level. national the at code criminal the of cases, some levelin local and, the at are being criminalised through survival the expansion for of administrativestruggle regulations, their in people homeless of activities everyday The AExecutive Summary � 21 Commission European , with its institutions including the including institutions its with Union, European Refrain from Refrain developing and constitution implementing policies amended that criminalise its and penalise from remove should Hungary example, For homelessness. the provision that allows for national laws to be passed that sleeping illegal (again). will make rough excellent countries have Many that not all counterproductive. policies Ensure are homelessness strategies in place, yet simultaneously allow cities and regions to persecute homeless people for carrying out life-sustaining activities in public Raising Raising awareness about the criminalisation of homelessness. As guardians the of and, Treaties in particular, as advocates for human human violate not do policies rights their that ensure should in institutions EU the Union, the European and criminalisation the to contribute inadvertently or explicitly not do and rights, penalisation of homelessness. As a result of the transposing of this “exceptionality” are being dealt to with not social according to their policy, people needs and by virtue of their human rights, but according to their residency status in migrants the country. face Undocumented difficulties or are prevented housing, from which accessing leads shelters a parallel social and residential and and equality to right the rights, human of foundations basic the weakens system social system. This two-tiered non-discrimination, and the dignity of people, that be as users treated it requires based on their status than immigration rather their homelessness and for respect their human rights. Some local homeless service providers face serious limitations to adopt the in rights-based approach, given their their close ties to government. efforts Other factors include the lack of mean knowledge simply not of does rights approach rights-based and a using how that to found report promote This access rights. to administrative change to essential is litigation Although litigate. to court to going structures, dissemination of the human rights-based approach legal advisory should services, user and/or include civil servant training sessions, the collecting of evidence as grounds for cases and assessing For the all impact of of this, public the joint policies. work (at different levels) is essential. and social movements NGOs administrations, of government universities, ombudsmen, National governments should: has a clear role in: and the European Parliament, has a clear role The The findings in thisreport demonstrate that action needs to be taken at all levels of policy-making to stop the criminalisation and penalisation of Europe. homelessness in Recommendations 22 � Executive Summary are solutions housing permanent crucial: tool––long-term, policy a be cannot Evictions Do notpunishpeopleforbeingpoor;poverty isnotacrime: the consider following: to policy-makers on call also FEANTSA and Watch Rights Housing Local governmentsshould: problem; rather, it moves it or postpones it. It is important to take into account into take to important is It it. postpones or rather,problem;it moves it solvethe not does people repressingarrestinghomeless sanctioning, or Evicting, people inhabitingpublicspaces. of number the reducing of goal the meet and treatment and services, housing, with people connect that interventionstailored to least, very or,the supports at experiencing homelessness to individuals programmesdivert that help will can lead to agents permanent private housing and with police appropriate and costly.services less and effective more social and health providers,departments, service betweenCollaborationhousing be would intervention “non-criminal” where continued the increase to in types and of crimes law or levelscriminal of of punishment to use address problemsdemagogic and symbolic the to prism, criminal a from problems social all view to tendency the to halt a put to necessary is It account asakey factorinreducing homelessnessandre-offending rates. centralityThe situation. their into for taken punished be be must not housing of not elect to initiate homelessness processes and to live in poverty, so they should to be assumed that poverty and homelessness are not lifestyle choices. People activities do the to related directly needs It situation. their criminalising survive,thus to in engage people homeless are sanctioned being actions the but not people, actions, sanction to tend issues civic with dealing regulations and Bylaws Ensure accesstosupportedpermanenthousingoptions. people are notpunishedforcarryingoutlife-sustainingactivitiesinpublic. and homeless people to ensure that human rights are respected and that homeless Work closely with homeless service providers, advocates, academics, police forces Repeal allpoliciesandmeasures thatcriminalisehomelesspeople. Refrain from issuingpoliciesthatcriminaliseandpenalisehomelesspeople, Ensure thatenoughsupportedpermanenthousingoptionsare available. and penalisationforhomelesspeoplewhoare tryingtoreintegrate intosociety. Raise awareness about the negative and highly disruptive impact of criminalisation Rights Institutes,andNGOs. Human National offices, Ombuds from recommendations and reportsby people, heeding homeless including all, for rights human of protection the Support carried outby localauthoritiesintheguiseofpolicyandsecuritypolicies. because there are no other housing options available. Social policy should not be AExecutive Summary � 23 There should There be a single criterion for tending to homeless people, which should human their of, guaranteeing and for, respect a as well as need, their on based be The obligation of human rights regulations to guarantee, at least, that an essential an that least, at guarantee, to regulations rights human of obligation The minimum standard for all economic, social and cultural rights is the responsibility met of involves guaranteeing an adequate standard of living through basic subsistence, which means providing basic primary health housing and care basic forms of services, education. Instead of basic allocating scarce resources to costly criminalisation measures, States should route the largest possible amount of available resources to initiatives that help people in situation rights. cultural enjoy all economic, political, social, civil and of poverty to States and people, should homeless against origin) eliminate social (including forms their all all in harassment forms of direct and should they implement all the necessary for measures this. The Union European indirect discrimination and Agency for Fundamental Rights should pay more attention to the repercussions of extreme poverty and social exclusion on access to fundamental rights, taking of enjoyment the for essential is housing to right the enforcing that account into and social ones. other rights, in particular political many that, regarding long-term homelessness, a bond between the homeless person and person homeless the between bond a homelessness, long-term regarding that, the social workers must be established, so that the homeless person can access requires This force. of threat or force by than rather voluntarily resources existing time and also involves skilled human resources as well It as is financialalso resources. important for teams to include people with homelessness. previously experience of The right to adequate housing includes the right to be protected against forced eviction. are This evictions is that guaranteed ensure in to several international obligation human an rights under treaties. are As States a standards, these of result These safeguards. procedural appropriate with and resort last a as out carried only safeguards include: genuine consultation with those affected, reasonable notice for compensation and housing alternative Adequate remedies. legal to access and all losses must be made available to those affected, regardless of whether they own, occupy or lease the land or housing in question. Evictions must also not render individuals homeless. States are under the obligation to ensure that there is no discrimination against particular groups or under ECHR. of aliens is prohibited expulsion collective segregation in housing. The No matter how reprehensible certain behaviours may be, the human rights and human and rights human the be, may behaviours certain reprehensible how matter No dignity of those who behave in such ways are inalienable minimum standards that are inherent to the human condition. The criminal should system strive to aachieve reasonable degree of and reassurance well-being for the majority of the citizens, and violated have who those to discomfort essential least the cause to strive also should it the legal-criminal codes. For many people, it's because they up in jail. end that they excluded are poor and socially based on needs: creation Policy All levels of government have an obligation to respect human rights and prevent discrimination: 24 � Executive Summary Using strategic litigation: More awareness, more training needed: valuable instrumentslikejoint actions, alliancesandthe“amicuscuriae”. and human rights NGOs and legal clinics. A public-interest priority involving on planned be the should agenda litigation is Strategic projection. to social strengthen havethat actions a performing and rights promotinghuman victims, for support advice, like aspects in evidenced is organisations mobilisation other ombudsmen, and NGOs academics, institutions, international of contribution The focus. level,local the at begins This rights. whereis which must efforts litigation major human of protection preventionand the for instrument an is litigation Strategic and theirimpactonthedevelopment ofthehumanrights thehomeless. homelessness eradicating for policies public consider assess to monitoring should and research approach rights-based human empowering homeless people the and defining measurable, feasible goals, supporting of implementation The homelessness problem shouldreceive adequatehumanrightstraining. the solving in involved agents different the and face, people homeless obstacles programmes multiple the on Educational focusing developed be should actions. campaigns awareness public and such denouncing or against claims making for resources to violated been have rights conditions, whose people of access equal-opportunity facilitate and under rights human fundamental enforcing resources available for about information possible greatest the provide addressed, being issues the to approach in-depth more a to conducive be should methods and their relationship to homeless people should be promoted, and their size and rights human of aspects different in spaces exchange participativeTraining and homeless servicesbeusedasameanstoregulate migration. to access should Neither homelessness. and destitution of situations to people be systematically used to compensate for inconsistent migration policies that lead not must services Homeless need. in presenting people to providingservices for penalised be not should providers service Homeless rights. human and need of this In regard, access to (emergency) shelter should be conditional only on the criterion status. administrative or legal of regardless rights, human fundamental person should be left destitute in the European Union. There is a need to respect No avoided. be should system social and criminal the of dualization The rights. Background – Housing Rights Watch � 25 These approaches were: These approaches 5 Background – Background Rights Watch Housing Evidence-based Comprehensive Multidimensional Rights-based Participatory Statutory Sustainable Needs-based Pragmatic Bottom-up FEANTSA (2005) The Perspective of Organisations Working with (2005) of The FEANTSA the Organisations Perspective Homeless Working on the Implementation of Social Inclusion Policies under the EU Social Inclusion Strategy (Brussels: FEANTSA). http://www. feantsa.org/files/social_inclusion/naps/en_implementation%20(1).pdf The intention was not to create a the definitive idea that was applied these could to approaches all countries. European Rather, proposal whose policies had to be be adapted becoming thus to population, homeless its of needs the and profile the national to and requirements context according to each country’s an instrument to facilitate priorities discussion on the development of policies. relevant The and report’s conclusion was that very few countries have a rights-based homelessness, approach to and even fewer have a increasingly legal are countries few a Nevertheless, people. homeless for housing to framework right providing an enforceable focusing on the of aspect rights the enforceable However, right strategy. to inclusion social EU the of housing. objectives common Access to rights was among the 5. Under the EU Social Inclusion Strategy, FEANTSA (2005) decided Shadow to produce Report a to provide implementation of social inclusion policies and a provided synthesis of a a variety of homeless service approaches in the fight provider's againsthomelessness based on the perspective reports of thenational on action plans for social inclusion. the 26 � Background – Housing Rights Watch published “Housing Rights the and Human Rights” by on Dr. Padraic focuses Kenna FEANTSAGroupand Expert Rights (founding Housing 2005,the treaties.In international under rights member Group other with housing Expert of interdependence the Rights and housing to Housing right enforceable FEANTSA’s 2003, in Established Adopted byFEANTSA’sGeneralssembly,28October 2005 Statement ofValues and everydayobjectives work. goals, its in rights of importance the demonstrates which Values, of Statement its FEANTSAadopted of Assembly General the 2005 October 28 On the HomelessinEurope magazinetohousingrightsasearly2003. of issue special a dedicated and this about concern showed first FEANTSA2005). social inclusion has clearly been neglected in the social inclusion process (FEANTSA, 6. http://www.feantsa.org/files/Month%20Publications/EN/right_to_housing_2003_english.pdf society andconsiderthefollowingrightsasparticularlyimportantinthisregard: of members full are homeless are who people believe members its and FEANTSA internationally of realisation recognised housingrights. the to committed are members its and FEANTSA affordable placetolive. on publicpolicy. gathering, information exchanges, transnational that recognise members its and FEANTSA dignity in FEANTSA and its members seek to advance the advance to seek members its and FEANTSA respect offundamentalhumanrightsforall. the and non-discrimination solidarity, justice, social equality, of principles the of advancement the to committed are members its and FEANTSA (…) l l l l l l l l l l (…) The righttoprivacy,safetyandconfidentiality. The righttoparticipateindecision-makingthataffectsthem. use them. who people the of aspirations and needs the meet to order in quality high The The righttobetreatedwithdignityandrespect. The righttosocialinclusionandcitizenship. and awareness-raising are a valuable resource to impact to resource valuable a are awareness-raising and advocacy, , provide choice and are of a of are and choice provide accessible, are that services to right and promote the right of all people to have a have to people all of right the promote and right of every person every of right secure, adequate and adequate secure, promotion and promotion 6

to live Background – Housing Rights Watch � 27 HRW denounced these human 7 for unsatisfactory application of Articles 31, 31, Articles of application unsatisfactory for http://eohw.horus.be/files/freshstart/Thematic%20Reports/Changing%20role%20of%20the%20 state/2006_homelessness%20and%20exclusion_regulating%20public%20space.pdf

rights violations in 2010 rights in violations statements in opposing 2010 the draft law restricting the rights of homeless people in and Hungary, another to denounce an action plan to place homeless people in a camp became in Prague. vocal on HRW the issue and joined 7. In 2008, a second successful Collective Complaint (53/2008 FEANTSA vs. Slovenia) Slovenia) vs. FEANTSA (53/2008 Complaint Collective successful second a 2008, In FEANTSA by Slovenia against lodged was FEANTSA began working on the issue of criminalization of homelessness as early as 2006. In 2008, the Housing Rights Experts need Group to raised the address question the of defence the of the being criminalised human in public spaces rights in many European cities, of as highlighted by homeless the people who European Observatory are on Homelessness in 2006. of HREG), which was also published in French and Spanish. The group co-organized a “Housing Rights in Europe” conference with the Finnish Presidency in 2006, and that same year drafted Collective Complaint 39/2006 which charged France with the unsatisfactory application of of the –– Article Revised 31 FEANTSA vs. France –– European Social FEANTSA’s Housing Charter. Rights Expert Group began publishing information on international housing rights instruments and mechanisms on www. feantsa.org in and 2007, in 2008 launched a database of jurisprudence resulting from to housing rights. Court of Human Rights relating decisions of the European disseminated were leaflet, a and Toolkit Anti-Discrimination an including tools, Other develop to continued work addition, In network.. HRW the expand and publicize to housing the rights mechanism through claims of in collective other countries. 2010 saw the organization of the “Housing Rights: from Theory to Practice” conference in Barcelona co-organized with the Associació ProHabitatge and Faculty of of Law University of Barcelona. Also, the firsttwo issues published, along were Newsletter with of a special issue on “Housing Rights of Roma the Housing Rights Watch and Across Travellers Europe”. In 2011, HRW held on an “Migration international and conference Housing Rights”, Opvang, with and published a leaflet campaign The to promote the use of Hague the EU’s Charter University and of Federatie Fundamental Rights to access housing rights “Contemporary at Housing the local Housing Issues the of issue level. third in the In where Ireland, of 2012, a University the National the with Changing Galway Europe” conference was held in also distributed. was Newsletter Rights Watch 16 and E of the revised European Social Charter and the group coordinated a special special a coordinated group the and Charter Social European revised the of E and 16 issue of Homeless in Europe, FEANTSA’s magazine: “The Right to reflections onFollowing the HREGHousing: work-to-dateForward”. in 2008, the group Way The determined there was a need to encourage strategic litigation at the local, regional and state As level. a a (HRW), European result, network Housing of Rights Watch interdisciplinary groups of associations, lawyers and academics committed to the in founded was all, for housing to right the of fulfilment and protection promotion, Abbe Pierre. Fondation and FEANTSA by 2008 and is supported 28 � Background – Housing Rights Watch comprehensive first FEANTSA’s is examination oftheissuesacross Europe, Europe andcarriesthevery clearmessage: in homelessness of penalisation and criminalisation Europeanthe report,This on rights. human their defend and people homeless of criminalization the delve on debate political to and theoretical committed the into deeper are HRW and FEANTSA context, this In Homelessness”. of the was and website on own for its “Poverty supported has by focused the campaign Homeless in European Europe launch magazine This Newsletter edition devotedJune. to campaign in “The Geographies Rights Crime” official a Not Housing is the of the ahead of poverty, of issue criminalization third the 2012, In exclusion” of “Geographies article (Fernàndez, 2011). the with hosted OpenDemocracy.net jointly and project, ICHRP forum by media Rights” Risking Poverty: “Governing the participated also 2011.in HRW October in Assembly General UN the at presented Rights Human of and Poverty report Extreme 2011on thematic Rapporteur the Special Sepúlveda, into Magdalena input valuable provided who regions, all from rights experts, academics, civil society and representatives of United Nations human entities included which Geneva, in Policy Rights Human on Council International the by Povertyhosted in Living People2011 Marchof Penalisationa on workshop Poverty isnotacrime, it’s ascandal! PART I Theoretical Framework

chapter I Applying a Human Rights – Based Approach to Homelessness – from Theory to Practice

Dr. Padraic Kenna Faculty of Law, National University of Ireland, Galway

Guillem Fernàndez Evangelista Associació ProHabitatge Government and Public Policy Institute (IGOP) Autonomous University of Barcelona I thought you were a lawyer I’m a human first, then a lawyer. It’s possible to be both.

The Street lawyer – John Grisham (1998) Applying a Human Rights-Based Approach to Homelessness  Chapter I � 33 et aw Law is related always to a society; et al. 2008). The other side of the understood (objective) as Law, the that is, a plurality of people that are in contact interests. and have Human to resolve conflicts beings of have always living conditions. fought This is to why they improve have developed mechanisms their for with their environment), interact how they to others, relate (determining how they co-existence well-being and norms of set This happiness. and survival their guaranteeing instruments up set and guarding and establishing norms of system a is, that Law; (objective) the constitutes such of violation the prevent to tends it and relations, social of organisation given a authority public the and something organises (Law) norm the Consequently, norms. guarantees the binding effectiveness of such norm. It is worth noting that each of these systems of norms a rises in a given political, economic and at a particular moment in the dominant social groups by imposed are and that they social context, well-being and equality, dignity, liberty, of recognition and achievement The history. have been guaranteed by social, political, and even cultural struggles (Castanyer In order to explain what the Law is, it is to common the In to explain individual order compare what within the Law a society with Crusoe “Robinson on his as island”. The he latter, was alone, could not establish any legal relationship because the Therefore, Therefore, recognition of “rights” by the State has struggle primarily responded (by to the the community Nevertheless, it and is worth noting that its such recognition by the organisations) State has allowed generalise rights, those guarantee to comes to it when responsibilities “identify to us achieve such rights. their protection, and launch policies validity in and an irreversible measures way”. It tending is established to that some individuals achieve inherent are rights born their that, with as such, are enjoyed even without recognition third party (as by these rights are not no given by anyone, a one can take them away or abolish them). Nonetheless, it is also true that the by recognition State places these rights in three important spheres: guarantee, requirability, and reparation (Graciela rights. Rights (subjective) of individuals, are the behaviour set of rules organising imply the consist possibility they of to the act to capacity according the (or Law; set of capacities) bestowed on an individual to defend framework of her/his the general rule. Thus, interests there is a in link between the and the Law rights: individuals, of act to capacity the or power the of limits the sets former the while the latter represent the very capacity of action according to 1998). the Therefore, term “right” the designates a capacity of rules the individual, which (Lacruz, generates the legal duty for public authorities to comply: to either do or not do something. al., 2009). 34 � Chapter I  Applying a Human Rights-Based Approach to Homelessness hs nentoa ognsto ta, mrcd h “epc fr ua rgt and rights human for “respect the embraced that, organisation international this Charter,creating Nations United the of approval the saw 1945 Thus, perspective. universal a from rights individual of protection the and recognition the for created was individuals. movement a of regimes, such rights of defeat the the following to why,immediately is opposed This inherently regimes, totalitarian of rise the Betweentwothe World Wars, developmentpolitical important highly place: a took their discrimination. against and women of liberation the for movements the of consolidation the and rights of recognitionsuch as the fight the against racial discrimination, to the achievement leading of women’s suffrage, struggles social witnessed The Germany. century in twentieth (1919) Constitution Weimar the and Russia, in (1918) People Exploited Workingand the of Rights the of Declaration Soviet (1917),the Mexico of declarations several I, of States WarwereUnited rights the human of Constitution promulgated,the Worldincluding After century. the expanded of be half later second would the from which rights, social and there economic century of twentieth recognition the was During constitution. each by up with set rights provide guarantees to the meant was which states, of constitutions the in included recognition of rights, as they were no longer proclaimed in “declarations”, but the rather in change” “formal a was there century nineteenth the during rights, social of time, same democracy.adoption social the a to become the addition to In had democracy political at and, rights, social guarantee to need a was there enough: not This new scenario showed, among other things, that recognizing human rights was which demandedbasicrights. inequalities and enhanced privilege, leading to social conflicts lead by the proletariat, labour standards, that instead of dignifying the human condition, in fact aggravated the In [1789]). Citizen century,dangerousnineteenth Revolution and the Industrial inhuman the consolidated of and Man of Rights the of (Declaration France and [1776]), Independence of Declaration States United [1776], Rights Virginia of (the Declaration States United the [1689]), Rights of Bill The [1679], corpus Habeas [1628], Rights of Petititon [1215],The Libertatum Carta (Magna England rule in arbitrarybegan movementsand privilege social of end of the and history “rights” of The recognition the groups. demanding social the certain privileges during only to because gave rights, universal monarchs Ages, of that declarations Modern true the no were in there starts Ages Middle rights human of history The actions thatprevent them. It is thus of utmost importance to know the reasons behind reversals, as well as the achievements obtained through efforts and struggles can be reversed, (Graciela or whole even erased.a form and interrelated are events however,time; wheregivenprocess a a at is place history eventstaking isolated of Werights contexts. their inevitableconsideredseries in an be as must history see to human tend of history The time. given any at force in ideas moral and political legal, the of evolution the through and communities, and peoples individuals, of Human rights have been progressively recognised over history through the evolution How werehumanrightsborn? , 2008). Therefore, social Therefore, 2008). al., et Applying a Human Rights-Based Approach to Homelessness  Chapter I � 35 et al., The establishment of Community European the the of European Treaty founding The rights. fundamental Union of recognition (EU) has led to the included expansion the and recognition of different rights (mainly economic) in the Common Market. the is Within the the commitment Treaty context to guarantee the of free of goods, capital, services, movement and people, which should all free be enjoyed from discrimination based on nationality. A wage equality clause is also the the EU's recognition commitment of part Taking to these equality. rights of as a point of departure, the Court of Justice put forth a wide list of fundamental the Member States, of and to constitutions treaties other international to rights references and The Treaties. community the to reforms, several through later, integrated were which fundamental include to had EU the later and, (EEC) Community Economic European rights in the and Treaties, to respect them in the making the action undertaken by extent, to the protective and due, to a great policies. This was implementation of Court of Justice, even though did the not community entitle Treaties the Court to have this role until the entry into force of of Amsterdam the (Freixes Treaty The United Nations Charter allowed or for bodies, the and existence thus the of Council organisation regional of aimed agreements Europe at was the born protection as of promotes “the spiritual an and human moral values intergovernmental which rights. are the common heritage The of their Council peoples of and the true Europe source of individual freedom, political liberty and the rule of principles law, which form the basis of all genuine democracy" (Preamble, Statute of the Council of 1949). Europe, Member Every State must accept the principles of human of jurisdiction its within persons all by enjoyment the of and law of rule the 1949). Europe, of Council the of Statute 3, (article freedoms fundamental and rights The Council theof refined definitionEurope and the defence of those fundamental rights and created the European Convention on Human Rights and Fundamental Freedoms in 1950 and the European Social Charter (ESC) in 1961. The European Social Charter includes social and economic rights, Convention while the European these and protect develop on Human Rights focuses on civil and political rights. To rights the further, European Court of Human Rights member and for duties the positive up Committee set of progressively Social have Europe of Council the of Rights can states. see We a change in the perception that the ESC is less important than for the the is There pressure Convention. ESC increasing to become an emblematic and Rights, Human of Law Social or Rights Social of Law European the of expression (Jimena, 1997). social democracy of the European as the bulwark fundamental fundamental freedoms” as one of its fundamental principles. In 1948, consequence, the in Declaration of Human Rights was approved, later to be complemented by the International Covenant on International Covenant Civil on Economic, and Social and Political Cultural Rights Rights in 1966. approved (ICESCR), (ICCPR) both and the sum up, recognition the of progressive human rights, To understood as a historical process of expansion of the legal content of human establishes dignity, that these rights should not be set as a hierarchy in public terms of authorities, relevance, or implied duties legal for implications. Instead, as per paragraph 5 of the first 2002). 36 � Chapter I  Applying a Human Rights-Based Approach to Homelessness identify significant differences between approaches based on charity, needs, or rights. Therefore, can obligations. we their fulfil duty-bearersto of capacity the and rights their claim to rights-holders of capacity the strengthen to tries approach an such Additionally,fulfil. to have they duties the and duty-bearers corresponding the as based on human rights identifies rights-holders andapproach what they areAn entitled to as not. well do needs while duties, imply 2010).Rights (ALG, their enforcement for responsible is who deciding involves rights of existence the while State, the of duty a to linked necessarily not is it but maylegitimate, need be a Satisfying rights. realise to but needs, satisfy to longer no is policies public of goal the that process between the State and civil society (Jiménez, 2007). The HRA demonstrates frameworkconsultation the a in of policies public of design and conception the for perspectivenew a understoodas be can HRA the sense, this In 2006). (ACNUDH, their for responsible is who judge to enforcement and to ensure that the necessary contributes capacities and resources are allocated also and extent; what to and done, be must what with, dealt be must rights human particular which establish Therefore,approachthis createto helps laws,policies, regulations that budgets and of evaluation and perspective implementation rights (Kenna,human 2011).incorporate the should every policy public design, the that conviction the was rationale supporting developmentthe international policies, of context the in wasborn HRA unfair distribution of power that hinder development (OACDH, 2006). Although the international development policies, in and role centralin objectives a correcting play the that The discriminatory inequalities practices those and rights. of analysis the human in lie approach of this of protection the and enhancement is the perspective, at operative an aimed from and, legislation rights on based human is international the perspective, the normative for a framework from that, conceptual development human a of is process (HRA) Approach Rights-Based Human The What istheHumanRights-BasedApproach? treat the sameemphasis.” must with and footing, same community the manner,on equal and international fair a in globally The rights human interrelated. and interdependent and indivisible universal, are rights human “All (1993): Rights Human on Conference the of part , approved by the Worldthe approvedby Action, of Programme and Declaration Vienna Applying a Human Rights-Based Approach to Homelessness  Chapter I � 37 All pproach A

inalienable. ased -B interdependent and ights Universal Declaration of R Focus on process and on process Focus outcome rights Emphasises realising individual and Recognises rights as claims group legal and moral towards duty-bearers are Individuals and groups to claim their empowered rights entitled to Individuals are assistance on structural Focuses causes and their manifestations universal and Human rights are pproach 1: Table A eeds . Whether they relate to civil, cultural, economic, cultural, civil, to relate they Whether indivisible. N Focus on input and Focus outcome Emphasises meeting needs needs as valid Recognises claims objects of Individuals are interventions development Individuals deserve assistance on immediate causes Focus of problems Rights-Based Approach by Human evelopment Introduced evelopment Thinking Shift in D pproach A harity Focus on input and Focus outcome C Emphasises increasing Emphasises increasing charity moral Recognises of rich responsabilty poor towards seen as Individuals are victims Individuals deserve assistance on manifestation of Focus problems The principles guiding the development of the HRA are based on their: Universality and Inalienability: Human rights are people everywhere in the world are entitled to them. The rights universality of is human encompassed in the words of Article 1 of the Interdependence and Interrelatedness: political or social issues, human rights are inherent to hierarchical the dignity of human a every person. in positioned be cannot and status, equal have rights human all Consequently, Denial of one right impedes invariably enjoyment order. of other rights. Thus, the right of other of expense the at compromised be cannot living of standard adequate an to everyone education. rights, such as the right to health or the right to Human rights are are rights Human Indivisibility: : “All human beings are born free and equal in dignity and rights.” born free Human Rights: “All human beings are Source: (Kirkemann & Martin, 2007) (Kirkemann & Martin, Source: . Each one contributes to the realization of a person’s human dignity through dignity human person’s a of realization the to contributes one Each interrelated. others. the satisfaction of of his and or psychological spiritual her physical, needs. fulfilment developmental, the upon part, in or wholly depends, often right one of fulfilment The instance, For fulfilment of the right to health may depend, in certain circumstances, on to education or to information. fulfilment of the right to development, 38 � Chapter I  Applying a Human Rights-Based Approach to Homelessness integrate fourbasicelements: must rights human of implementation effective an that stated (2006) UNESCO and fashion, effective same the In an rights. human throughof monitoring social objectives of system participatory and policies and, these them; enforcing supervising actually course, and of legislation the in rights human integrating enforcement; rights and raising human of rights system sustainable a human create to capacity-building, at: promoting actors,involved the especially,among and, whole aimed a as society the measures in awareness specific up set to rather a general orientation common but to others, all from policies. policy,isolated Foradditional this an purpose, about it not is is necessary this is, that policies; These human rights principles must guide and pervade the development of public n te nentoa cmuiy ly motn rls n odn governments holding in roles important accountable fortheirobligationtoupholdhumanrights play community international the and accordance in society proceduresprovidedlaw.bycivil and media, rules the the adjudicator Individuals, with other or court competent a before redress appropriate for proceedings institute to entitled are rights-holders aggrieved so, do to fail they Where instruments. rights human international in enshrined standards and norms legal the regard,with this theyhavecomply In to rights. human observanceof the Accountability and Rule of Law: and otheridentifiedgroups. peoples indigenous people, young women, minorities, society, civil communities, by participation of degree high a require approaches Rights-based well-being. and lives their affect that processes decision-making the to relating information access Inclusion: and Participation rights standards. geographical origin, disability, property, birth or other status or as social established age, national, byopinion, gender,other human ethnicity, or colour,political religion, orientation, sexual race, language, of basis the on therefore, discrimination one, suffer No person.should human each of dignity inherent the of virtue by and Non-discrimination: and Equality 2. 1. by 32C/Resolution 27. 2003 October 16 the on bysession 32nd adopted its of as meeting plenary entirety 20th the its at UNESCO in of reproducedConference General is Rights Human on Strategy UNESCO - the of http://www.unfpa.org/rights/principles.htmtext The Nations: United – retrieved, 7May 2013 Principles Rights Human Source: and administration. Action programmes and plans with responsibilities across all levels of government Setting cleardeadlinesforthegoalsandstandards ofhumanrights. Analysis ofhumanrightsbased onthedutiesofstates. 2 l pol hv te ih t priiae n and in participate to right the have people All States and other duty-bearers are answerable for l idvdas r eul s ua beings human as equal are individuals All 1 . Applying a Human Rights-Based Approach to Homelessness  Chapter I � 39 Situation analysis is used to identify immediate, underlying, and basic causes of stakeholders, all account into take to have analyses These problems. development partnerships. to set up strategic in order Strategies enhance the development of and human evaluate both rights processes and results. because Strategies or they programmes must focus monitor on disadvantaged or excluded groups, as Goals and the targets goal must is be measurable, to as reduce of they programming and evaluation. are In inequalities. fact, strategies fundamental or programmes have components to keep all stakeholders. accountable vis-à-vis themselves Participation is both a means and a goal. People are in recognised their as own key development, actors rather than passive recipients services. of commodities and Assessment and analysis in order to identify the individual human rights claims duty-bearers, of obligations rights human corresponding the and rights-holders of as well as the immediate, underlying, and structural causes when rights are not realized. Programmes to assess the capacity of rights-holders to claim their rights and of to build strategies then develop they Later, to fulfil their obligations. duty-bearers these capacities. Programmes to monitor and evaluate both outcomes and processes guided by and principles. human rights standards rights human international of recommendations the by informed is Programming bodies and mechanisms. An effective control of the compliance with and rights-holders. authorities government both rights, involving and the enforcement of human The February Eurobarometer 2010 survey on poverty and social exclusion shows additional that almost An one quarter of Europeans society. (24%) consider our that in people are participate poor if fully their cannot they that limited so are resources while live, to needed goods basic the for pay to inability the as poverty define 22% another 21% definepoverty as of amount the if the poor are people needthat believes (18%) to minority sizeable A assistance. depend on social benefits or public The Human Rights-Based Approach and Poverty In addition, the following are essential, for the implementation of the human rights- human the of implementation the for essential, are following the addition, In 2004): (UNICEF, based approach Therefore, Therefore, the HRA wide a to according evaluation their for as well offers as policies, public of implementation a normative framework set for of parameters and indicators designed the to assess progress beyond the legal development and and institutional frameworks. The HRA is related to the process and the outcomes of specific the andof enforcement unique human rights some and necessary, requires 2004): elements (UNICEF, 40 � Chapter I  Applying a Human Rights-Based Approach to Homelessness oeeses s nraigy en cniee a epeso o sca exclusion social of expression an considered being increasingly is Homelessness but hardships, 2009). (AI, insecurity and suffer violence by threatened and voiceless, only excluded, also are not do problem. poverty the “resolve” experience would who levels people these Nevertheless, on acting that granted for taken is it income, or expenses of level the of terms in exclusively described is poverty when (Eurobarometer,expensive2010). too Furthermore, is area their in housing decent believedpovertythat Europeansrelatedof is 67% costs; housing that high think to The above-mentioned Eurobarometer survey also shows that, in many countries, it is The HumanRights-BasedApproachandhomelessness by thefollowingfeatures (OACDH, 2002): the HRA to strategies or programmes for poverty reduction is generally characterised (OACDH, 2002). Thus, according to the principles outlined above, the application of levelinternational and national the at problems these eradicate to measuresurgent constitute a violation of human dignity and, therefore, require the implementation of Nations High Commissioner for Human Rights, extreme poverty and in social exclusion approach rights-based human strategies for the the eradication of poverty integrated (OACDH, have2004). As reasserted initiatives by the severalUnited number years, a for of Consequently,poor. be to likely more are denied are rights whose 2007). Therefore, the link between human rights and poverty is evident: individuals poverty(IIDH, of eradication the in element essential an as whole, a as society for of rights also but activists, rights human human lawyersand for concern a the only not is people poor of defence the perspective, this From disadvantaged. most the of benefit the to not generallyresources but public and policies public growth, the political and socioeconomic systems have concentrated the benefits of economic as inasmuch rights, havestructuresthose that chronicallythe violated result of the and effect the expression, the also is poverty hand, other the On standards. living action and choice is restricted, impoverished people cannot enjoy better and desired 2007).freedomsfreedom(IIDH, of fundamental their and Because rights human of excludethat fromextremelyinequalities) realpeople effectivethe poor and exercise derived and shortages by (caused processes economic condition and political social, cumulativefrom a is it because rights human violates Poverty violations. rights human of product a and cause a both is poverty Nonetheless, fault. person’s poor perspective. Quite to the contrary, it is often seen as something pitiful or even as the of a violation of human rights. It is still uncommon to consider poverty from a HRA 2010). Nevertheless, the survey did not ask whether being poor was a consequence povertythe below threshold(Eurobarometer,is month each moneyspend theycan Monitoring andaccountability Progressive realisation ofhumanrights Participation and andempowerment national the at Equality andnon-discrimination legislation rights human international level relevant the of Recognition Indentifying thepoor Applying a Human Rights-Based Approach to Homelessness  Chapter I � 41 of situations of et al., 2005). This understanding is crucial for housing rights-based approach, a “sectorial” Home = Housing + X et al., 2005). Thus, the concept of home is an independent is a dynamic process, not a defining feature ofa group of people or a that is adequate to satisfy the needs of an individual and her family (physical domain); domain); (physical space) (or house a having domains: or family areas three contains “home” of concept The her and individual an of needs the satisfy to adequate is that (social relations social entertain to and privacy maintain to opportunity the enjoying domain); and enjoying exclusive possession, security of occupation and legal right (legal domain) (Edgar static condition, and therefore it can be described as a continuum (Edgar (Edgar & Doherty, 2001) instead of a situation of of economic view implies accepting poverty. that This its causes point are composed by structural, institutional, ., 2005). (Edgar et al factors and relational personal Homelessness concept neither limited to the housing unit nor to the but implying more than legal a permanent or temporary housing: right it includes the human to possession, dimension of life and the relations that life entails (Kenna, 2006). As a summary, we can say that a home is the result of housing plus an X factor representing the and via social, structure a by acquired values cultural its psychological physical use 2007). as a housing unit (Fox; The United Nations Committee on Economic, Social and General Comment number 4 Cultural on “The right Rights, to adequate housing”, in established that its the concept of adequacy serves to determine which account factors in must determining be whether taken into a housing unit world. Consequently, is while adequacy “adequate” is anywhere determined in in the part by social, climatic, cultural, ecological and other it factors, possible is economic, to nevertheless identify legal the example, For context. any in account into taken be must that aspects certain security of of the services, tenure; availability materials, facilities and infrastructure; affordability; habitability; accessibility (physical); location; and cultural adequacy. Europe, For the definition of the “adequacy of housing”was established in Section to the right is devoted in 1996. Article 31 Social of Charter the revised European 31 to housing and establises that signatory countries must create measures aimed at access to “[promoting] housing of an The adequate Committee standard”. of Social Rights of the Council of Europe judges that “adequate housing” is structurally safe housing, devoid of any health or sanitary risks, not risks of free and overcrowded, is dwelling a enjoying opinion, Committee’s the a In tenure. safe sanctioned legally for health if it provides all the basic features (water, heating and plumbing and waste sewer disposal; systems; electric power; etc.) and that, if (Kenna, affected control under by specific are these asbestos) or lead of presence the as (such problems, 2006). exclusion from adequate housing (Edgar the application of the HRA to focus homelessness must because, be on to the eradicate promotion, protection, homelessness, respect and the non-violation adequate of housing, understood the as right a human to right and based on the principle of “humandignity”. This understanding is called version of the human rights-based approach which is applied to the struggle against 42 � Chapter I  Applying a Human Rights-Based Approach to Homelessness 4. 3. Cultural Rights) comply with not the duty (established in the International do Covenant on Economic, States Social and as long ofAs general. “cause” in a rights also human is of violations it further time, same the at but, rights human of violation the of policies, security many and Furthermore, order and by aggression or abuse. So we can say public that homelessness is a “consequence” 2001). by Keys, violated are & rights individuals’ (Miller homeless regulations restrictive many and officials, and workers by treatment derogatory or impersonal shelters, in privacy lackFor a risk. example,theymayencounter at rights their puts people homeless by this situation (Muñoz affected persons of dignity the jeopardise seriously rooflessness, to instance, for social stigmatisation and degraded and dehumanized conditions which are related, the cases, many In violated. or threatened constantly are equality and dignity to When people are homelessness or face housing exclusion, their fundamental rights defend theindivisibilityandinterdependence ofallhumanrights. and hand, other the on rights and political and civil the and social hand, one the on rights, economic, cultural between division artificial the overcome must we homelessness, the right to an adequate standard of living” (Lynch & Cole, 2003). So in order to eradicate freedom of association, the right to vote, the to right to right social security,the expression, of the right freedom to health, to and right privacy,the to right the freedom discrimination, from to right the person, the of security and liberty to right the including freedoms, right implies assuming that homelessness “is a violation of fundamental human rights and human a is housing” “adequate that assuming Therefore, 1996). (Austin, life” of quality therefore and our rights other of fulfilment the for reachingimplications far with right a is housing adequate to right The … relax to and sleep to wastes, bodily eliminate to place providinga –– survival for necessary activities other of range a supports it and work, and with oursatisfactoryfunctioning[...][it]isanessentialconjuncttotherightsofeducation to shelter from weather, and to store clothing and other substantive possessions connected hygienically,foods cook and prepare to space a offering well-being, and health of protecting means primary a is [it] […] treatment degrading or inhumane cruel, from security us including freedom of speech, religious to practice and other cultural expression rights […] [it] allows the safeguard help to freedoms of range a seen facilitates development.It to right privacy,the be and self-determination can “housing because evident, is rights other and housing to right the betweeninterrelation The homelessness. and exclusion housing present Covenant by all appropriate means, including particularly the adoption of legislative measures […]”. available resources, with a view to achieving progressively the full realization of the rights recognized in the through international assistance and co-operation, especially economic and technical, to the maximum of its Section.2.1 PIDESC, “Each State Party to the present Covenant undertakes to take steps, individually and and individually steps, take to undertakes Covenant present the to Party State “Each PIDESC, Section.2.1 the shortestpossibletime andusingthemaximumofitsavailable resources. be able to proof that it has implemented enough measures to guarantee the universal right to housing in alwaysmust State the ICESC: the in enshrined rights the apply to duty its comply not does State a that be given to the protection of the most vulnerable members of society. Lack of resources does never justify these resources must be used that in underline an to equitable and important effectiveis manner,it make sense, this meaning to that In the ICESC. priority used the must byalways recognisedbe right every to and each haveeffective resources State that means resources” available their of maximum “Tothe 3 to devote the maximum of their available resources et al., 2003). Sometimes, emergency services provided to 4 to achieving Applying a Human Rights-Based Approach to Homelessness  Chapter I � 43 the realisation of the right to housing, 6 et al., 2005). Therefore, the advocacy for the rights of , by all appropriate means, 5 “To achieve progressively” should not be interpreted as a duty devoid of content. It has to be noted that noted be to has It content. of devoid duty a as interpreted be not should progressively” achieve “To recognises and the that specificities of each it is a the mechanism needed intended flexibility, to provide as country, well as the difficulties facedby a government when tries to guarantee the full exerciserights. The of ICESC the requires states to implement, as quickly and effectively as possible, the measures a full necessary attainment to of guarantee the rights. economic, On social the and other cultural hand, regressive deliberately measure any implements State Member a if that appear does it Covenant the from the regarding exercise of economic, social and cultural rights, it will to have justify and to demonstrate happening. this from to prevent resources it has used all available that, on the contrary, states the Covenant, the ratified having After duty. immediate an to related is means” appropriate all “By must undertake immediate action. The first action consists legislation, in in an in-depth review order to of adapt all relevant the it to acknowledged international by legal the obligations. Committee on Nonetheless, Economic, it Social is and not Cultural other implement to necessary is it measures, legal to addition in that, implies means» appropriate all Rights. “by enough, the Moreover, as expression housing, to right the for As nature. educative and social economic, judicial, administrative, an of policies housing plan. a strategic to prepare this obligation implies that the states have groups in society do not have rights, because, as stated above, every human being being human vulnerable most the that imply not does rights” to every “access expression the Using above, stated as because, rights, have not do society in groups Access to justice and homelessness homeless people can take place also in each of those spheres. It does not make sense make not does It spheres. those of each in also place take can people homeless to defend an individual, only in the framework of the civil and political rights, unless it is or combined with a legal struggle in terms of economic, social law, private local, the at either law, administrative and public of field the in or rights, cultural and homeless that is however, important, Most level. international or European national, the justice system. access to people have It is important to the remember and interdependence indivisibility of human rights, individuals, homeless of rights civil and political the defend must we while because we cannot be distracted from the need to (given the definition) defend the that (1996) in showed the to United housing. States, Vivian in Rothstein early and right mid 1980s, the main task homeless of representing people the consisted lawyers of identifying housing services covering their needs, litigating for these services, and services of provision the However, situation. their overcome to people these helping following the over homelessness of levels increasing the given and sufficient, not was years, most lawyers started to defend the rights of homeless people to “exist and survive” in public spaces. This development led to the advocacy for “safe the for or persecution, zones” from free areas), (marginalised in live to people homeless for permission to distribute food on the instead streets, of for beds advocating more in shelters (Rothstein, 1996). This development makes it all the more important that underline we the need for an to approach homelessness that problems understands that there are structural, institutional, personal and relational factors which cause this phenomenon (Edgar individuals experiencing homelessness may suffer a systematic their rights. violation of and permanent 5. 6. progressively 44 � Chapter I  Applying a Human Rights-Based Approach to Homelessness has revealed individuals’ misunderstanding of the law, and the banks’ abusive banks’ the law,and the of misunderstanding individuals’ revealed has foreclosures mortgage especially, and, evictions of problem the example, (for legislation), housing of unaware are often, relationships. power Veryreflects people homeless by suffered exclusion social the how as such restrictions,several on lights sheds homelessness, to applied whenapproach, rights-based human the that argued Consequently,be could it (PNUD, 2004): law.in Therefore, justice we to following access the the find to can restrictions downprocedures set and criteria the to according and impartiality with period, rights-holdershavereasonablethat can resolveda claims within their and fairly or ethnic origin, age, political ideology or religious beliefs. In addition, it implies holders”, on equal terms “rights- and free of as discrimination on thethe individuals grounds of sex, of racial of rights duty of exercise the the guarantee implies and protect also to State it “users”, as system judiciary the to turn who those of disposal the at instruments and means logistic or material the to onlyrefer not does justice” to “access of concept way,the this In 2005). (PNUD, the transformation of power relationships that perpetuate exclusion and poverty whose rights are not protected. Therefore, access to justice is an instrument for individuals those among poverty perpetuates justice to access of lack truethe that also reinforcing is it mutually justice, twoto access are the restricts rights actually poverty protectwhile problems: to failure and resources of lack 2004). As pointed out by the United Nations Development (ICHRP, Programme sufficiently or (UNDP), fully rights their fulfil cannot that people of groups are has inalienable and indivisible rights. This expression refers to the fact that there and weak enforcement oflaws, implementationoforders anddecrees. imprisonment; and detention seizures, searches, unlawful in resultingpowers and authority of abuse integrity; has and and reliable is availablethat representation legal of affordable lack the system; the using of costs prohibitive the delays; Long of purpose. Avoidance of the legal system due to economic reasons, fear, or a sense of futility administrative board procedures). in and litigation civil and criminal procedures(in legal expensive Formalisticand Excessive numberoflaws. Limited publicparticipationinreform programmes. Lack ofadequatelegalaidsystems. prevails inpractice, andlimitedpopularknowledgeofrights. Lack of adequate information about what is supposed to exist under the law, what or centres ofdetention. of Lack people, includingthosewithdisabilitiesandlowlevels ofliteracy.disadvantaged other and poor children, women, protect to fail effectively laws Gender bias and other barriers non- in timely, the preventive, law are and legal that systems: discriminatory, remediesinadequacies adequate,justanddeterrent. in provide practice.existing to in fail or systems law legal by Most either provided remedies existing in limitations Severe fr ntne mn immigrants many instance, (for rights their know not do individuals de facto de protection, especially for women, children, and men in prisons in men and children, women, for especially protection, do not know how to exercise their rights their exercise to how know not do

Applying a Human Rights-Based Approach to Homelessness  Chapter I � 45 et al., 2005). At the same time, however, et , al. Mackie, 2005; 2008) show that homeless people often lawyers, lawyers, and social entities specialised in the legal defence of (for example, people reluctant reluctant people example, (for rights their exercise to want not do (for lack of economic resources, or in the the in or resources, economic of lack (for rights their exercise cannot pro bono Several studies (Forell studies (Forell Several arrogance), arrogance), to contact NGOs out or of lawyers distrust for all institutions linked to a State them). excluded or that has oppressed case of homeless people with mental conditions or drug addictions), and, finally, finally, and, addictions), drug or conditions mental with people homeless of case people) (some exacerbate can with, dealt not if which, problems, legal interrelated and multiple have the leading factors to homelessness the often of process homelessness. Apparently, have, at least partly, legal implications, for example in cases of accessing when discrimination divorce, debts, excessive domestic foreclosures, and evictions violence, housing, or landlord harassment. Legal assistance in these cases reduce may the risk prevent or of homelessness (Forell the homelessness process itself puts homeless individuals in a legal position problems, prone such to as being sanctioned for incivility social entities or antisocial In this way, or aggression. (or the victim of) robberies being involved behaviour, or helping homeless people can/should develop legal services to assist individuals in need of help and to empower them. In certain cases (and some for of the different social reasons), entities/organisations that provide services to homeless people are not able to advocate or litigate on their behalf legislation. against there government However, are policy other means or through which homeless people can seek legal aid and support. For this purpose, these organisations should links establish with human rights (or housing rights and homelessness), and work in ombudsmen or networks with law with schools with legal clinics. The aim of this cooperation is on influential being and to contributing sphere, legal the in exclusion social fight to the development of laws, instead of restricting themselves to service management by emphasis the cases, certain in that, noting worth also is It lobbying. political and human on rights the of advocates legal human and rights constitutional framework has led them to neglect certain forms of action, such as the of development social movements, that sometimes are more likely to motivate and emancipate excluded to of this. In order examples includes III some of interesting this report Part groups. identify to important is it HRA, the from justice to access the to obstacles overcome the grievance that calls for a remedy or redress. A grievance is defined as a gross injury or loss that constitutes a violation of international human rights standards. The capacity and actions needed to achieve access to justice, following a human outlined below (UNPD, 2004): are rights-based approach, 46 � Chapter I  Applying a Human Rights-Based Approach to Homelessness collective and overall the the accesstorightsincludefollowing (ICHRP, 2004): strengthening rulings, enhancing for Suggestions 2004). system(PNUD, justice the or within accountability actions arbitrary against procedures appeal reasonable institute to and decisions court enforce to capacity the enhance to intended arecontrol parliamentary through and society civil the by or redress of type compensation. The adequate empowerment of the civil most society Adjudication and the monitoring of the policies knowledge. determine to legal capacities with developing means laypersons via or representation, bono pro systemsand defence public through advice action, and assistance legal legal for need pursue a is there and initiate to able be to individuals for hand, other the On and tounderstand thelegalprocedures. understand which institutions and authorities should protect their access to justice, judiciary,to the through reparation obtain to right the have they that understand individuals, and dissemination of information that can help disadvantaged people to for capacity-building implies awarenessLegal their legislation. national or and constitutional treaties of ratification the the of implementation and via recognition law,the national as wellinto integrationas instance, for improved, be can groups disadvantaged for protection Legal mechanisms. formal through remedies claim to judiciary,the in disadvantagedindividuals involveof right to rights the has the and of recognition a means protection UNDP,legal the by explained as sense, this In Source: (UNDP, 2004) Encouraging participation indecision-makingat alllevels; measure it;developing indicators foreconomicandsocialrights; Encouraging governments to monitor access and collect disaggregated statistics to Applying a Human Rights-Based Approach to Homelessness  Chapter I � 47 Developing techniques of budget monitoring and resource allocation to influence influence to allocation resource and monitoring budget of techniques Developing spending priorities; government benefits; immediate services or Providing issues of accountability; at Looking and policy-makers; excluded among the rights awareness Building human Encouraging strategic networking and issue-based alliances, activists, human especially rights organisations and organisations with among direct contact with and groups; individuals excluded Monitoring and supporting arms-length governmental human rights bodies, like of human rights. national commissions Indeed, the fundamental aspects of the strategies for includeinclusion) social homeless and protection social on people report joint (put forth 2010 Commission’s European in the strategies build to need the acknowledges Parliament European The features. these of many for the eradication of homelessness, as homelessness entails an of human unacceptable dignity violation and, particularly, of Section 34 of the Charter of Fundamental of the Rights European Union on Social security and social assistance, as well as Section of31 the Revised European Social Charter on the right to housing. In addition, the resolution urges the European Union Fundamental Rights Agency consequences of and extreme poverty social access to exclusion regarding to and enjoyment pay more attention to the of fundamental rights (considering that respect for the right to housing is essential to the enjoyment of other rights). Consequently, it is important to assign EU to structural a fundsprogressive development of housing policies targeted at homeless people, to ensure equality and non-discrimination, and to set up instruments the to right exercise to appeal, adoptionthe purpose, this For participation. their promoting and people those empowering of the ETHOS typology of homelessness of and in Eurostat the the involvement statistical and accountability. monitoring essential for programming, are analysis Throughout Throughout this chapter we programmes have characterise identifiedshould that features thethe as mainwell as humanpolicy, public rightsguide should principles that toessential is It approach. rights-based human a to according homelessness reduce to European the by approved B7-0475/2011 Resolution the by shared elements the identify Parliament with the aim to design a European As strategy. stated above, the United Nations High Commissioner for Human Rights believes social that exclusion constitute a extreme violation of human poverty dignity and and urges public authorities to undertake policies reduction to eliminate those 2002). (OACDH, problems Poverty target the identify they features: following the by characterised be should programmes population; they promote the recognition of human equality rights and legislation, non-discrimination; and respect should they for programmes these contribute Moreover, to actors. all of participation the and people the affected the empowerment enhancing policies of of series thea involves that task a rights, human realise progressively stability of actions and that eventually guarantees accountability through monitoring must be set. targets so measurable policy, of public and evaluation Based Approach The Human Rights- g homelessness inEurope and eradicatin 48 � Chapter I  Applying a Human Rights-Based Approach to Homelessness P (OACDH, 2002) P rogrammes overty human rights Progressive realisation of empowerment Participation and discrimination Equality andnon- rights framework and internationalhuman legislation inthenational Recognizing therelevant Identifying thepoor R eduction

B7-0475/2011 on E uropean and its“indicators” sub-group) Promoting that definition (Social Protection Committee Call foraspecificfocuson“housing-led” approaches; Member states; EU different the in homelessness address for marginalised to groups for housing ERDF also the facility of upon financing use the calls promote to Funds; Commission Structural the the from especially streams, funding EU and strategy homelessness EU the between links strong of development the for Call the support national and regional homelessnessstrategies; to effective of activities sustainment and of development package a housing, Envisage as such sectors employment andhealth; neighbouring and homelessness experiencing people providers, service homeless NGO regionalresearchers, policy-makers, local and national, including homelessness, against fight the in stakeholders all involve to and homelessness strategy EU an for group working a Establish social mixandfightingsegregation; states, Member of which legally enshrines policy the principle of promoting the housing social the with compliant fully be should Strategy Homelessness EU political andsocialrights; the enjoyment of a full range of and other rights, including to mind in that access the fulfilment of the bearing right to housing ofis rights, critical for fundamental terms of enjoyment in exclusion social and povertyextreme of implications the on morework to (FRA) Rights Fundamental for Agency EU the Urges the Lisbon Treaty, respect fully should Strategy Homelessness EU dignity; human of violation unacceptable an is Homelessness of theCouncilEurope, especiallyitsArticle31, Havingrevisedregardthe Charter Europeanfor Social of theEuropean Union,especiallyitsArticle34, Rights Fundamental of Charter the for regardHaving Reflecting on changes of the profiles ofhomeless the profiles persons and, in particular, of on the impact of migration; changes on Reflecting Gathering dataonhomelesspeople(Eurostat) Taking intoaccounttheETHOStypology

an EUH P arliament omelessness

resolution S trategy

Applying a Human Rights-Based Approach to Homelessness  Chapter I � 49 Call for the design for of monitoring a the framework development of national and homelessness EU regional the of homelessness element central a as strategies, strategy; Call for an annual or bi-annual reporting strategy to on progress; report Monitoring and Monitoring and accountability This chapter outlined how human rights are, in fact, the result of a historical process process historical a of result the fact, in are, rights human how outlined chapter This of tireless struggles to an achieve expansion of the legal content of human dignity. This is a dynamic and non-linear with process and periods periods of improvement of regression. The human rights-based and approach expand was human created rights, to on operationalise empowerment the of assumption excluded that groups the means first acknowledging have rights that States step that have to respect and fulfil.towards those The introduction of this the individuals concept aims to change the rationale behind policy-making processes so that the people that rather point but assistance, of need of in people of existence the not is departure are entitled to claim their rights. Rights imply duties, and duties need mechanisms 2006). making Homelessness, them which claimable (Abramovich, and enforceable is understood as processes of exclusion from adequate housing, is a human is rights. not homelessness, Nevertheless, violation only like a poverty, consequence of of human rights violations, but also a potential cause legal rights. interrelated that, many problems Homeless if people left have generally for the violation of other assistance can transform Legal the homelessness untackled, process. can exacerbate the law into a preventive tool to reduce on the Resolution Parliament’s European risk The empowerment. and defence of of instrument homelessness, as well as an the need for a homelessness in strategy supports eradication Europe the underlying principle of poverty reduction programmes set developed according up to the by human rights-based the approach. United In these there Nations programmes, has been and a general recognition of the importance of and empowering impoverished excluded groups. The human rights-based approach essentially proposes to attain this empowerment through the recognition of rights, so access to justice a plays crucial role. But knowing is must not be enough. willing, We in the words a struggle, legal a undertake to will this And Law. the for fight to (1985), Ihering of legal battle for is personal and not collective something dignity, to be found in the claim to groups and individuals certain of intention the in rather but Law”, “written 2006). in action” (Ponce, their rights; that is, it is to be found in the “Law Conclusions 50 � Chapter I  Applying a Human Rights-Based Approach to Homelessness References civil. Volumen primero. JoséMariBischeditor. Lacruz, J. (1998): Elementos de derecho civil I. Parte general del derecho Rights. inspirationalAn society.civil for guide Human Institute for Danish The approach. rights-based T.a Martin, Applying (2007):& J., Kirkemann, Terrassa: ProHabitatge Edicions. vivienda, la a derechos los y P.Kenna,humanos derechosLos (2006): Kenna, P. (2011): HousingLaw, RightsandPolicy. ClarusPress. 31-46, january-june. las (12): y 7 (Colombia). Bogotá Humanos Arboleda. Univ.Sergio Públicas”. Políticas Derechos los de Enfoque “El (2007): W.G Jimenez, Dykinson. Madrid: Derecho. de democrática y Lasocial Europa(1997): L. Jimena, la de dimensión Interamericano deDerechos Humanos.CostaRica. la desde Humanos Instituto Interamericano. Sistema el en construir por ruta pobreza:una Derechos Los (2007): IIDH Ihering, R. (1985): International Rights. Human to Council onHumanRightsPolicy. Versoix, Access Switzerland. Enhancing (2004): ICHRP los de Historia (2008): E. Derechos Humanos.SerieTener González, derechos nobasta,Nº.8.Provea. y P., Fernández, A.; Graciela, Los derechos humanosenlaUniónEuropea. Barcelona: Bosch. como fundamentales (2002): A. Marzal, in derechosEuropea”, Unión la en legitimidad de parámetros “Los (2002): J. Remotti, T.; Freixes, Publishing. Oxford. Fox; L. (2007): Conceptualising Home: Theories, Laws and Policies. Hart Foundation ofNewSouthWales. Justice Wales.and LawSouth New in people homeless of needs legal Special Exclusion” Forell, S. McCarron, E. & Schetzer, Social L. (2005): No home, no justice? : the and “PovertyEurobarometer 321. TNSOpinion&Social,Belgium. (2010): Eurobarometer Pathways, servicesandexperiences.Bristol:ThePolicy Press. Europe: in homelessness (2001):Womenand Doherty,J. & Edgar,B., origins untiltoday). dels origens fins avui. ProHabitatge Edicions (Housing Rights. From the Castanyer,Reixach,Fernàndez,y J; G V. Des l’habitatge. Dreta (2009): 5, No Paper WorkingAustralian HousingandUrbanResearch Institute. Homeless” the for “Rights (1996): C. Austin, RSCLAC PNUD. ALG(2010): LatinaAmerica Genera.DerechosHumanos”. de “Enfoque humanos enlacooperación para eldesarrollo, Geneva. derechos de enfoque el sobre frecuentes Preguntas (2006): ACNUDH Pobreza” Amnistía Internacional,London. Menos = Humanos Derechos Dignidad. “Exige (2009): AI las estrategias ypolíticasdedesarrollo. Revista dela CEPAL, n.88. en derechos de enfoque al aproximación V.Una Abramovich, (2006): La lucha por el Derecho , Cuadernos Civitas, Madrid. Applying a Human Rights-Based Approach to Homelessness  Chapter I � 51 Lynch, Lynch, P., & Cole, J. 4. of International Law.Vol Melbourne Journal (2003): “Homelessness and Human Rights”. Mackie, P. (2008): This time round: current interventions in the exploring housing of homeless prisoners released to the effectiveness of Shelter Cymru. Wales. A.B., Miller, & Keys, C.B (2001): “Understanding Dignity in the Lives 29, American Journal of of Community Homeless Psychology, Persons. E. S., & Perez-Santos, quoted in Muñoz, M., Panadero, 2. pp. 331-354, (2003): “Derechos Humanos y Exclusión Social: La dignidad como eje de la intervención”. Psicopatología Clínica, Legal y 3, Forense, Vol. n. 1. pp. 63-86. Muñoz, M., Panadero, S., dignidad como eje de la Social: Humanos intervención”. La y Exclusión y Perez-Santos, 3, n. 1. pp. 63-86. Vol. E. y Forense, Psicopatología Clínica, Legal (2003): “Derechos OACDH (2006): “Preguntas frecuentes sobre el enfoque de derechos humanos en la and cooperación para el Geneva: desarrollo”. New York United Nations. OACDH (2004): Los derechos humanos y la reducción de la pobreza: Un marco conceptual. Oficina delAlto Comisionado de las Naciones Unidas para los Derechos Humanos. New York and Nations. Geneva: United OACDH (2002): “Los derechos Humanos 2002/30. Oficina del de la Comisión de Derechos Resolución humanos y la Humanos. Derechos los para Unidas Naciones las de Comisionado Alto extrema pobreza”. OHCHR (2002): “Draft Guidelines: A Poverty Reduction Strategies”. Human Office Rights of the Approach High of Minnesota. University to Human Rights. Human Rights Library. Commissioner for PNUD (2004): “Access to Programme. Development Justice. Parctice Note” United Nations PNUD Manual (2005): de políticas públicas el para acceso a la justicia: América Latina y el Caribe. Argentina. Buenos Aires Desarrollo. Programa de Naciones Unidas para el Ponce, J. (2006), prólogo al libro (2006): de Los Kenna, derechos P. a Edicions. ProHabitatge Terrassa: humanos. la vivienda y los derechos Rothstein, V. (1994): “Is There http://bostonreview.net/BR18.6/ 1994 January 1993/ December Review. a Right to be Homeless?” righthome.html. Boston UNESCO (2006): UNESCO Strategy Strategy. on Human Rights. UNESCO UNICEF (2004): “Annex B. Fund Children’s Human Nations United The Rights 2004. Children Based World’s Approach”, the of in State The (UNICEF). 52 � Chapter I  Applying a Human Rights-Based Approach to Homelessness chapter II Penalising Homelessness

Guillem Fernàndez Evangelista Associació ProHabitatge Government and Public Policy Institute (IGOP) Autonomous University of Barcelona In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets, and steal loaves of bread.

Anatole France (1844-1924) Penalising Homelessness  Chapter II � 55 Implications Regulating the Modes and Patterns of Social Control: Social of Patterns and Modes means to impose a sanction or punishment as a result of the violation for Human Rights Policy, which highlighted of contemporary the social implications control patterns; for that is, human the rights ways and in administrative regulations which define, construct laws, and policy characterized address or people criminal deemed as todefined is be behavior whose or “dangerous”, “undesirable”, One of the main conclusions of the research 2010). as (ICHRP, socially problematic is that people living in poverty are disproportionately subject to a series of control as as agencies. well mechanisms private These exerted government mechanisms by are framed within a range of legal and administrative policy measures relating, To penalise To (1971), also Poor show (1971), that the of evolution social-assistance is programs cyclical, with alternating periods of expansion, when popular and unrest the risk of political crisis is significant, and periods of shrinkage when more labor isrequired, shifting the beneficiaries of public aid to the job market. These two aspects (breaking the crime-punishment dynamic and linking social and the criminal basis policies) of are analysis Wacquant’s (2009) in a bid to understand the current criminal situation. the reveals duality Wacquant of policies targeting the poor: the mixing of criminal of sides two are policy criminal and policy social words, other In policies. social and (González, 2011). the same political coin: managing poverty of a legal rule, whether it be a law or regulation. The UN Special extreme Rapporteur on poverty and human rights uses the to refer in expression general to policies, “penalisation laws and administrative regulations measures” used to punish, segregate and Some control people of living these in measures give rise poverty. to direct penalisation, with the prosecution and jailing of these people, while others excessively regulate and control different aspects of their lives (Sepúlveda; 2011). That is, a person can be penalised without having committed example, simply any not violation. having one’s For identification papers can, for many immigrants, mean a penalty in terms of access to public services or entitlements, and wearing “dirty clothes” can be enough for someone to be forcibly removed by from, the police say, a metro station. titled The report, a published International (ICHRP) Council on Human Rights Policy Traditionally, the legal system has responded to “crime” primarily with “punishment”. with primarily “crime” to responded has system legal the Traditionally, But this link between crime and punishment breaks when incarceration rates and crime rates association are this with very broke weakly (1939) Kirchheimer correlated and in Rusche virtually all 2011). (González, countries history for any period in up regulated was the history of how poverty revisiting of crime and punishment by to the start of the twentieth These century. authors show how both the amount and type of to punishment according economic vary needs, particularly in terms of the jobs held by those convicted. Piven and Cloward, in their book 56 � Chapter II  Penalising Homelessness Thus, first, we see that the “correctional” model is progressively abandoned, as abandoned, is progressively model welfare is considered the to “correctional” foment individuals’ dependency on the that state, which see involves we first, Thus, the and paradigm risk the of economic analysis ofcrime(DelRosal, 2009). advent the ideal, rehabilitating the of collapse the 1980s: 1970sand the in originating factors simultaneous three to due substantially varies law criminal to or penalty the to assigned function The (Wacquant,2003). caused by neoliberal policies structurethat deregulated social and cut back the the social of welfare base system the at created disruption social the as contain safety,to social as well of problems managing for instrument an as system penal the of use growing the to due is developedsocieties of populations prison the in increase relations in turn between the state authoritarian and society (Rivera, 2005). Wacquant an argues that to the generalised led which offensive, neoconservative a into political and economic the and translated that 1980s 1970sand the of context international state the in transformations social the of crisis the by bankrupted was states in social reinsertion the and by preventioninvestment involvesstrategies which (De Giorgi,model, “correctional”2005). But the the is model This future. the in crimes committing fromprevent them to behavior their modifying or correctingby about the causes of crime, under the assumption that explanations providingcriminals could in laybe criminology transformed of interest century,the twentieth the In Recent ChangesinriminalLaw in poverty and,inparticular, homelesspeople. law,criminal living people of penalisation the on consequences its and criminology neo-liberaldominant that impact the mind developmentthe on had has thinking of in bear to necessary is it Therefore, 2007). (O’Sullivan, intertwined intricately are they as context, their from controlling separately analyzed be and cannot These people. homeless penalising of forms on the impact their to attention how special paying changed, havepoverty in on living people focus will we chapter this In defending thehumanrightsacquired through historyisnow anurgent matter. to rights and of behind, left being gradually guarantees aresystem, justice criminal the the under process due with along period, postwar the in constitutionalism social so-called the of grounds the Therefore, people. homeless of banishment or rent of history a have who those arrears or a example, criminal record. These for exclusion dynamics can result housing, in the incarceration social access to trying when difficulties administrative face record, criminal a or arrears rent of history a havewho those as such , people homeless certain addition, In wash. or drink, eat, begging that regulate behavior in public spaces, restricting a person’s and ability vagrancyto against lawssleep, of result a as streets the in suffer people homeless that criminalisation the on focus that penalisation of experiences and aredifferentcases there human homelessness, regards (ICHRP,2010).As of poverty in enjoyment living people the by rights on has incarceration and segregation criminalisation, surveillance, extending graveunderscoresthat the study consequences The justice. and security care, health assistance, social police, planning, urban others, among Penalising Homelessness  Chapter II � 57 et al. Human needs

et al., 1999). Thus, as Gemma Nicolás (2005) Finally, Finally, “actuarial criminology” is based on the premises which of law considers and economics, that basic expected economic costs and concepts, profits, institutional like arrangements, special rationality, rights, interests, balance maximization, and property economic efficiencyThis are2002). also fundamental(Roemer, foractivity understanding,criminal combating explaining, effectively and predicting discourse is founded on the idea that crime is a rational choice. The criminal is a “rational, amoral person” (Roemer, 2002) who chooses crime after a analysis preliminary in which the expected benefit isof perceived the crime to (the greater be punishment or by crimes of than commission the the deterring is punishment and the cost victim’s crime of theory economic resistance). The main goal of the by is, that actual, or potential whether criminals, by paid be to “price” the changing imposing harsher sentences (Cooter have have limits and, once satisfied, some time isrequired for them to beto Beck, Instead, the according ideological imposition of “risk” implies a bottomless reactivated. assumption the to leads analysis Beck’s way, this In met. never are that needs of well that the perception of risk is linked to a need to consume. Therefore, it does not depart in any way from capitalist development, but rather expands it. goods, Consumer income and wealth are distributed as scarce resources that between different generate social groups. gaps The opposite of the appropriation logic, denial, is thus imposed. sustain For that this reason, groups the privileged collateral damages the of by excess and censored unsustainable or questioned denied, are consumption such practices and are finally legitimizedby it in theeyes of the entire population Thus, (Korstanje, 2010). in the “risk society”, as Gemma Nicolás (2005) explains, criminality is viewed and managed interest as No abandoned. is a problems or deprivations non-eradicable social certain of risk. result a as exists The idea that crime in or committed, is it which in conditions the in or crime, of causes the in shown is the responsibility society in may have it, thus restoring the criminal’s responsibility 2004). for his own acts (O’Malley, explains, “actuarial justice” thinks in terms of risk rather than The culpability. fact classified as “at risk” that an individual belongs to previously a specific social group a high economic cost for the state’s coffers, and limits and hampers the productivity productivity the hampers and limits and coffers, state’s the for cost economic high a Penal Barcelona’s of University the from (2005) Rivera Iñaki As sector. private the of System and Human Rights Observatory explains, the crisis questioned system the theorists and meant of that those in involved political struggle the criminal legal of penal punishment. and legitimacy on the reasons discourse of the became aware In this context, and under the growing pressure of rising crime rates in the 1960s, the increased fear of crime, and the victimisation of the of American and British increasingly middle larger classes, along swathes with the hardened rhetoric and neoliberal and practices of neoconservative the and Reagan Thatcher governments, campaigns aimed at restoring the lost “law and order” were revived (Lea the Moreover, “risk society” concept, defined at lengthby Ulrich Beck (1992),based is on the assumption that, in current societies, social production of wealth is systematically accompanied by a growing social production of risk. 1993). These campaigns are characterised by their demands for punitive rigor and and arena political the in rhetoric crime” on “war the on capitalised and inflexibility, 2005). the media (Rivera, 58 � Chapter II  Penalising Homelessness rms ie itrn ad ulc rnig o nuihd mr ad oe serious more and more unpunished, go drinking public and littering like crimes minor even If flourish. will crime care, to seems one no and deterioration of showssigns community a If shattered. be soon will windows andremains other broken the is all unrepaired, window ifa For example, disorder. and filth carelessness, crime increases in areas that are left to deteriorate, where there is more and obvious has been the and subject of debate immediate, ever since. and The “Broken Windows” notable theory holds wasthat impact Its prevention. crime and policing about Georgeand Wilson Q. James Kelling “Brokencalled article an published Windows” intolerance”have spread as of a result of criminology the above developments “the in policy calls and perception. In 1982, (1999) Young that trends Political-criminal from brokenwindowstozerotolerance The CriminologyofIntolerance– and perpetrating anatmosphere offear(Nicolás,2005). assist in the social and cultural construction of the perception of risk by establishing control crime to (Lea, use 2004). widespread Furthermore, its there allow is to a crucial citizens roleby for legitimate the and media credibeto playas to seen be must justice” “Actuarial criminals. of number the will so reduced, are crime committing for opportunities the if that, is idea underlying O’Malley,The 2004; 2004). Giorgi, prevention”“situational authorscall (De some what is This committed. frombeing preventto crime victims potential of environment the alter to is justice actuarial of method One control. and surveillance under groups the to limits physical)always environmental circumstances favoring deviating behaviour and trying to set (almost crime throughdetering control or fear.or Consequently, the terms “actuarial justice” will trend toward reducingjail minimizing lengthening tolerable, means which society, or cause tractable can it it harm make to even simply or but criminals, crime, rehabilitate eradicate or to reeducate to made is attempt No 2004). (Lea, are as criminal matters, while crime is blended with broader problems of risk and safety poor appear problems The Social risks. zones. generates that exclusion class” “dangerous new of the as inhabitants viewed the being with risk class, at social populations onto the superimposed social is category with risk population A step 2005). dangerous (Nicolás, in regarding groups pronouncements are moral categories certain risk and of inequalities management and construction The cases many in homeless peopleare directly affected. and 2000), (Rutherford, sanctions and violations criminal and/or existence of “almost-criminals” or “almost-crimes” is a hybrid result of administrative law. criminal than populations at-risk The handling of means effective and efficient civil and administrative law (Nicolás, 2005). Administrative law is viewed as a more of field the in sanctions establishing by conduct risky discourage or crime to of perpetration is the goal whose sanctions”, “administrative in rise the in reflected is category.broader a This of part as rather but criminal, be lawsto the by described conduct in engaging person a as only viewed longer no identity,is he/she because perpetrator’s the diffuses This implacable. is response the committed, is crime the is pursued more avidly than the specific conduct or the facts of the crime, but when Penalising Homelessness  Chapter II � 59 et al., 1982). The Having restored peace, social and democratic states now aspired to the “guaranteeist “guaranteeist the to aspired now states democratic and social peace, restored Having model” under the rule of law, and thus began to reform in the context of an riminal Exceptionality Culture of Emergency and/or C The export of the “criminology of intolerance” to Europe is more widely questioned. widely more is Europe to intolerance” of “criminology the of export The As Iñaki Rivera (2004) explains, exporting would clash American with another particularly worrisome penal European political-criminal trend. strategies to Europe Since the Europe had 1970s, begun to experience its own crisis of the Social State, which in the criminal domain was structured as a characterized was “culture policy criminal of line this short, In (sic). exceptionality” criminal of emergency and/or by abandoning the primary instruments of the emerged democratic after European states World that War Two. The postwar forestall repetition social of the constitutionalism, Holocaust built by providing to criminal the abuse guarantees of preventing gave power, ground to to different started phenomena exceptionality” criminal of and/or political emergency of violence. “culture In the prisons, of terms for regimes “special” prisons, maximum-security of building and for need the justify prisoners of groups of dispersing practices, isolation penitentiary prisoners, “special” or the of creation computer databases, giving rise of to the so-called “Criminal Law will discuss below. 2006), which we (Rivera, the Enemy” In 1994, the mayor of New York, Rudolph Giuliani, implemented a “Zero Tolerance” Tolerance” “Zero a implemented Giuliani, Rudolph York, New of mayor the 1994, In policy based on it’s this However, not theory. “zero tolerance” against the person committing the crime, but rather “zero tolerance” of the action itself. The strategy law of transgressions any forbid to and communities orderly clean, create to out set and civic-duty rules, thus sparking the “war on in poverty” policies penal these of success the questioned have studies (Rivera, different that fact the 2004). Beyond contrast to other American cities like San Diego, which experienced the same drop in crime under other preventive schemes like community policing (Rivera, 2004), many acknowledge that these policies allowed the censorship and social exclusion “deviant” their in persisted who or responsibilities to submit to refused who those of with the brunt behavior, being borne mostly by the emerging American underclass and blacks or Hispanic immigrants (Hughes, 1998). the Finally, “Three strikes and you’re out” laws seek to ensure that repeat offenders receive the highest possible sentences. Bernardo del Rosal (2009) explains how this expression, in the field of criminal legislation, means that subjects convicted of committing a third crime are first The state. the on depending life, to years 25 from ranging terms prison to liable in committing 1993, a where third Washington, state was to implement these laws parole. violent crime means a life sentence without “Broken “Broken Windows” theory spawned a police-oriented that even the most petty response violations, or mere suspicions, must that be dealt with in the established 2004). (Rivera, increasing from crime to prevent way harshest crimes crimes will follow. If parks and other deteriorating public spaces are progressively same these afraid), are they because go longer no (who people most by abandoned spaces will be progressively taken over by criminals (Wilson 60 � Chapter II  Penalising Homelessness n h lgl ytm o cutis ih eeoe eoois Atog national Although economies. developed with countries of systems legal the in From a criminal point of view, the above is directly linked to the recent transformations Criminal LawoftheEnemy Symbolic CriminalLaw,the Resurgence ofPunitivism and the progressive sanctioningofadualpunitive system (Aranda etal.,2005). –– the more the democratic system and equality in the eyes of the law are affected through It is clear that the more that one resorts to the criminal system –– and criminal exceptionality measures characterized by: of set “a as conceptualized was “emergency” the say can we section, Tothis end expansion oftheemergency tonewspheres (Aranda etal.,2005). efficiency of fetish or halo (police, court, The penitentiary) became a legislation. new discourse used criminal over time and to legitimize the life ordinary of spheres virtually disappeared, they have notbeendismantledandinfactinvade many other necessary.emergencywhich for phenomenon the that lawsNow were has enacted strictly as long as force in be only wouldthey decades that stressedwas it and (terrorism), three Europe phenomenon special a in combat to headwayenacted werelaws these make guises: two under ago to began rules “emergency” new The precisely, the“culture ofemergency” (Aranda etal.,2005). or,legislation” “emergency more so-called arose Thus extraordinarytools. and new use reacted. immediately and “terrorism” ordinaryavailable the instruments that to Convinced were decided States sufficient, not faced examples, obvious most the mention to Spain, and Germany,Italy of Republic Federal the Ireland, countries. European several in head rearedits violence political of simultaneously,phenomenon almost the Indeed, penalties, etc. However, the very foundations of these reforms were the subverted fulfilling by in events. legality of principle labor; forced and punishment capital of prohibition their prevention”, checked positive “special Europeincluding Westernprinciples against processes of reform penitentiary countries the of most 1970s the in guaranteeism,criminal and constitutionalism social of context this in that explains (OSPDH) Rights Aranda Mónica human rightswas thuserected asasubstrate ofpunitive intervention. of other.firmament the The on citzens) its torture to permitted not is state a (e.g. state punitivethe powerthe of to limit a as and/or hand, one on rights citizens’ as procedural) guarantees acquired the dual nature that allows them (and criminal to that be meant shift paradigmcontemplated a Such rights. human of law international altering basicprinciplesoftheconstitutionalorder withoutsuppressing them”. rights andguarantees; and implementing restrictive and even repressive measures, which violate fundamental creating socialtensionandactivating theauthoritariansideofsocialsensitivity; basing actionsonurgency and exception; (2005) from Observatory on the Penal System and Human Human and System Penal the on Observatory from (2005) al. et Penalising Homelessness  Chapter II � 61 The truth of the matter is that, in fact, not the refer to term a “Symbolic well-defined setCriminal of criminalLaw” does violations characterizedby their lack of enforcement or lack of real impact on the “solution”. It only identifies the special importance given by legislators to short-term communication aspects in approving the laws relevant (Cancio, 2006). If people who engage in prostitution or begging cannot pay a fine, this does not because matter, the goal is the message of order and safety sent to society. These effects can even be preserving integrated in political strategies for power. Symbolic Criminal Law “deed”, not but also only (or above all) identifiesa specific type ofa certain perpetrator ofdefined the not deed, as who an is equal, but as an “other”. That is, the existence ofrule pursues the theconstruction of a certain criminal image of social identity through defining the perpetrators as “others”, not sharing in this Thus identity. it is important that “begging” becomes “aggressive begging” and that people mafias”. “organized of who part are materials rummage scavenging or through food for looking bins garbage So Symbolic Criminal and Law Punitivism are fraternally related, and the “Criminal ties (Cancio, 2006). these fraternal arises from of the Enemy” Law contexts can condition many of these changes both quantitatively and qualitatively, qualitatively, and quantitatively both changes these of many condition can contexts there are notable can distinguish common 2009). We (Del Rosal, for these new legal orientations explanations features and possibly three types of explanations, though each is some closely related to the other: “Symbolic common underlying the “New of Punitivism” the and Criminal which Enemy”, the Law”, “Criminal Law (2006), by Manuel Cancio Meliá As noted two. of the first the blending arises from the so-called “Symbolic Criminal and Law”, what can be called the of “Resurgence but concepts Punitivism” two that not are are clearly in reality, separated legislative foundations the laying up end and intertwined are evolution of lines two their rather for the “Criminal Law of the Enemy”. When the concept Law” of is “Symbolic used, Criminal it refers to the goal of fact “giving a that soothing impression of certain being an political alert, decisive legislator” agents (Silva, only and criminalisation 2001), of results irrespective whether the rule pursue is perhaps totally the inadequate to achieve a reasonable level of application. But notes, as those Hassemer who (1995) use “symbolic” elements in relation to the criminal no system regard have whatsoever for the very real and unsymbolic harshness of the experience That is,accused, sentenced, prosecuted, and of incarcerated. those arrested, who are it does not take into account that a instrumentspecifican only harmnot isis inflictedlaw by criminal But theeffect. punishment symbolic to a than more rather achieve for generating reassurance by simply enacting rules that are are also not criminalisation processes enforced, based on there the introduction of new criminal laws of case the in sentencing harsher or enforcement effective their promoting at aimed existing which laws, would entail a of “resurgence Punitivism” (Cancio, 2006). For instance, if radically punitivist legislation on drugs or prostitution is introduced, it has an immediate impact on criminal prosecution statistics. But in spite of this, it lies such laws to approve legislators is obvious that an essential element motivating in the “symbolic” effects by their it mere enactment. also Conversely, appears that regulations that, in principle, should be classified as “merelysymbolic”, likeagainst begging, can in some laws countries lead to criminal (Cancio, “real” proceedings 2006). 62 � Chapter II  Penalising Homelessness Enemy in current legislations is not the consequence of an external factor (triggered from the perspective of criminal policy, it can be stated that the Criminal Law of the that concludes (2006) Meliá Cancio Manuel perpetratorsdeeds. the such on of but consequently, the Criminal Law of the Enemy is not a Criminal Law based on deeds, Therefore,LawCriminal the Enemythe “Exclude”of to seeks rather “Prevent”;than “enemy”. the of category the to belonging as perpetrator the characterize to serve criminal the classification is not (only)of a certain “deed”, but also otherbase elements, as long as they the at lies what characteristic: also structural (2006) second a Meliá mentions Cancio Manuel Enemy. the of Law Criminal the to rise identity) giving social creating for mechanism a as classification (criminal Law Criminal Symbolic with recombined is crime) controlling for instrument only the as penalty is risk against defense the regard, this actually the least in of problems. that, In this regard,said “punitivism” (the be idea of increasing can the it that so citizens, circle of the from excluded is subjects of category certain a that is element decisive the perspective, this from process “symbolic” the seeing is, That suppressed. even or relativised are is guarantees procedural punishment certain the third, and Second, high, deed). disproportionately actual the being reference of point the (with is Enemy the retrospectiveof referencefutureinstead of possible deed) point the the being (with of Law Criminal the (2006), characterized by Meliá three elements. First, the Cancio legal-criminal system becomes prospective Manuel by noted As et al.2006). (Jakobs, Citizens Lawthe Criminal of the preserving for formula best the as Enemy the of Law Criminal the maintain to is task main Consequently,the an violators. the justify that activities deter to dangerousmanages that punishment throughsystem legal the particularly by responseexcessive of existence the explains laws” the Citizen and of a LawCriminal LawCriminal of a the Enemy.be will The there distinction between is, the “twoThat criminal Enemy”. dictates the of the Law “Criminal to the of subjected the be for should “risks” they order, of social source established a the are of they survival when is, that view, of point factual a from certain “persons” (Campderrich, 2007). When these of individuals that represent or a interest be “danger” collective the only on maydepending regulation they law,state of of subjects passive subjects of community social the normative of basic part not their are of dimension deprived individuals that us tells theory Jakobs’s “persons”. for guarantees judicial or interests legitimate rights, the recognizes only law positive Contemporary “non-person”. a to reduced is and “person” a as status his/her loses he/she otherwise, either behave to inability individual’s models, the by or these choice by transgresses behavior her or however, his If, “person”. a as status her or preserveshis individual the then acceptable, socially be to judged are a in that models behavioral conduct the with aligned generally individual’s is conduct this the If context. social on depends preservation, its all this above of and attribution social status, the Jakobs, to According them. to status this attributes biological sense, are not “people” per se; they are only persons so as long as society physical-psychic,the in beings, Human attribution. of social normative status a is the “person” Jakobs, For Non-Person). and (Person Enemy and Citizen between According to Jakobs (2006), the Criminal Law of the Enemy is built on the distinction The CriminalLawoftheEnemy Penalising Homelessness  Chapter II � 63 The . et al., 2005). Also, precisely We can We affirm that the three characteristics of the CriminalLaw of the Enemy –– “criminalisation in the prior state”, failure to fulfill the principle of proportionality of part always almost are –– guarantees procedural of minimisation and penalties in legislation in many democratic European states, particularly those with doctrinal a history of a of appearance the in only lie would novelty the Therefore, struggle. armed support backing the need for a law with full guarantees for and “Persons” another law, without the classic rights, for criminal “Non-Persons”. and Although procedural legislation a regarding the accused’s more rights restrictive has traditionally in developed to regards terrorism and drug recentlytrafficking, this restrictive more approach has spread to being include also organized are groups that Law trafficCriminal withof immigrantsguarantees and and limits The 2006). (Chazarra, slaves sex “Enemy” of concept The 2006). (Chazarra, groups vulnerable to often more applied is undetermined, and over time can be extended without limit (Krasmann, 2007). now in are Currently we seeing Europe this category expand to include. Foreigners, population Roma the and suspects terrorism refugees, seekers, asylum migrants, by an by attack or a political circumstantial majority) of of legal-criminal the evolution systems. Rather to the an contrary, analysis of sources official the in political-criminal wave developments Enemy” the of Law “Criminal current the to prior studies and shows that their origins lie in history (Bacigalupo gration and Criminal Law Homelessness, Immi Europe of the Enemy in because it is not a temporary phenomenon and is not due to exogenous factors, the factors, exogenous to due not is and phenomenon temporary a not is it because current “Criminal Law of the Enemy” is not simply the return of an stage. a new evolutionary authoritarian rather but criminal policy, As Capdevila and Garreta explain, (2010) historically in have Europe governments European crime. there and immigration between has association dangerous been a always put the immigration issue on the public-order ministries agenda, of the as interior (home affairs), subject is grouped 1976, together in to with Europe in of created issues the group, of TREVI The police control. border European and control internationally on a set up to work cooperation for inter-governmental a framework covered: issues the for stands acronym The countries. all affecting problems of series Radicalism, Extremism, Violence Terrorism, and Immigration. The association does not merit in further Article 1999). commentary K1, The (Pajares, Maastricht treaty, ask agreements Tampere The crime. and immigration of issues the with deals jointly for immigration policy to be oriented toward regulating the entry and residency of foreign workers, establishing a common framework of rights and against duties, fight includion the and policies immigration European common immigrants, for policies illegal immigration (Pinyol, 2005). In seeks 2005, which Convention, Prüm the signed Spain and Netherlands The Austria, Luxembourg, Belgium, France, Germany, labeling of foreigners is an integral part of the State‘s construction of individuals and individuals of construction State‘s the of part integral an is foreigners of labeling groups as “friend” or “enemy”, usually defined inrelation to the “citizen”.Labels categories of “risk” arbitrary and vulnerability, into divide relatively human migrants 2009). (Oberoi, patterns mobility contemporary with resonate always not do which 64 � Chapter II  Penalising Homelessness in Italy has a capacity of just 800 but in March 2009 it housed 1,800 detainees. 1,800 housed it 2009 March in but 800 just of capacity a has Italy in considerably,2007.in 1,724 to 2003 in from739 with a total capacity of moreof capacity total a with people. 30,000 than Union, European the in camps 235 documented Cimade NGO French the 2008, in seekers in detention asylum in and all Council migrants of of Europe member number states the has often tracking been statistics criticized, accurate of lack the While ten-fold since the early 1990s. early the since ten-fold risen has capacity example, for Kingdom, United 2010).the (Catarina, migrantsIn irregular and seekers asylum of arrival the to response a as detention of use their have expanded Europeancountries significantly that mind in bear to necessary is It of datalikeDNA,fingerprintinformation, vehicle useandothers (Freixes, 2008). collection the like immigration, illegal concerning regulations specific introduce to 4. 3. 2. 1. of the application of the Criminal Law of the Enemy to homeless people? Antonio people? homeless to Enemy the Lawof Criminal the of application the of the of Law Criminal the of development Enemy applied to immigration the in Europe can be observed. But can the same be said in trend growing a regard, this In employment, etc.(Fekete etal.,2009). crime of “failure to integrate”; which they characterise by, new for the example, for failuredeportation for to campaigns find now Right extreme The constitutes changing. is actually crime what of notion the also but increasing, offenses criminal for deportations of number the is only Not numbers. prison an down drive to instrument as deportation use to is debate crime national foreign the of purpose true the therefore, learn, to surprise no as It comes sentence. prison a following expelled being nationals foreign of number increase the exponential in an in resulting deportations, for baseline new a establish to changed has law the countries, European knew.In never sometimes or ago, years left individual an that society a in again start to having means country” “home a (Fekete impossible country host the in rehabilitation of imprisonment, since it breaks up families and disrupts people’s lives, while making period a than punishment moreover,greater is, far overlooked.Deportation a often and that deportation is frequently imposed as an additional punishment is generally fact that foreign offenders are treated at least as harshly as a country’s own citizens the foreigners, by committed crime about debate the family.In his to return then then detained for deportation, while the person who is a national of the country can of is foreigner the but prison in foreigner,sentence a same is the serveone both they expulsion the facilitate to up set foreigners. As Fekete and Webber being (2009) explain, if two people commit a crime is and system procedural exceptional an from 21 to23May 2008”,CommDH(2008)34,Strasbourg, 20November 2008,paragraph 93. byFranceto visit Hammarberg,his Thomas following Europe Rights, of Human Council for Commissioner See “Rapport Cimade 2008”, www.scribd.com/doc/2662304/Rapport-Cimade-2008; see also, “Memorandum lea imgat cn e eand, lbl ot 1 Jl 20; e fr oe nomto U High UN information more for See 2009; July Commissioner forRefugees, Measuringprotection by numbers (2005), 13 November 2006. time Post, of Global amount detained”, the be increases law can Greek immigrants new illegal A migrants. illegal up lock to plans “Greece N., Itano The centre hassince beenemptied. See www.globaldetentionproject.org. 1 France’s aggregate detention capacity has increased has capacity detention aggregateFrance’s ht ay rmnlgss ugs that suggest criminologists many that 2 4 The LampedusaThe center detention But in manyin But European countries 2009). Deportation to Deportation 2009). al., et 3

Penalising Homelessness  Chapter II � 65 et al., 2004). Nicholas Pleace cites (2011) different A growing representation of Accession States citizens (A-105) in the homeless populations of EU-15 member homelessness services. and low-threshold houseless people using emergency states, particularly migrants undocumented and people seekers asylum refugees, of presence living the of Evidence rough and among homeless people, again homelessness services. centered and low-threshold emergency on people living rough Ethnic and and using cultural minorities who appear to migrants. be not recent homelessness but who are at a disproportionate risk of The 2004 A-8 accession states: Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovakia Poland, Lithuania, Latvia, Hungary, Estonia, Republic, Czech states: accession A-8 2004 The accession states, Bulgaria and Romania. plus the 2007 Slovenia, 5. For For example, in Bilbao (Basque Spain), Country, the local police and the National Police Force’s Aliens’ Unit documents proper have entered not did found people an the of Forty-four sleeping. abandoned were people mortuary where 63 homeless the detained Aliens’ by Unit, and which were against opened them proceedings for being in the country with an irregular status. Those people without a prior police record were released while their paperwork was completed. The paperwork was an were orders deportation received already had who people those and order expulsion detained in an internment centre and eventually deported. The police intervention who indigents of presence “the about complaints neighbourhoods by prompted was spend the night in the abandoned building or report[ed] fights,” and, according to So, if on the one hand the immigrant population is subject to a generalized increase increase generalized a to subject is population immigrant the hand one the on if So, in penalisation, in particular with regard to the Criminal criminal Law of policy the expressed Enemy, and on in the the other hand immigrants are numbers increasing among the in homeless population, then we can exclusion conclude the that on we based need Enemy to the of Law Criminal the of development the on reflect homeless people in Europe. among of foreigners studies that show the existence of three broad concerns that may be identified at EU at identified be may that concerns broad three of existence the show that studies homelessness: to migrant with respect level Tosi defends Tosi that homeless people are not the explicit target of regulating rules public and orders spaces, but they do result of their dependence suffer on public spaces to carry the out their daily activities (Tosi, effects disproportionately as 2007). a In addition, in many European countries, the most prominent target group of public fear and hence of control measures are migrants. Migrants are subject to similar discursive mechanisms as homeless people, so poverty has while not the (yet) represented a penalisation dominant of factor in European policies and for homeless people even less so, it has increased as 2007). regards immigrants (Tosi, But in recent years, as explains, Nicholas migrant Pleace homelessness (2011) has become increasingly visible in some parts of other the undocumented EU. migrants Failed were appearing asylum at seekers increasing and rates among roofless people and who in homelessness had low-threshold services. been People accepted as refugees and who were awaiting asylum assessments homeless were populations also (Edgar appearing in 66 � Chapter II  Penalising Homelessness security” and to “deplorable health conditions”. health “deplorable of to and reasons security” to due permissible not is that situation a conditions, the of aware are the city councillors responsible for “Citizens’ Security”, “we know they are there and 7. 6. the rights of homeless people arise in both low profitability spaces that are marked are that spaces profitability low both in arise people homeless of rights the overconflicts The people. homeless on attack an constitute fact in mayareas, city space, from public people exclude or behavior of of forms certain prohibit regulation that ordinances through the However, space. public in behaviour regulate to level,controversialmade municipal have been and attempts national at years,both people’s jeopardizes moreover, chances that, of social integration and (Busch-Geertsema exclusion of situation the deepens that stigma additional an is homelessness Consequently,of eviction. criminalisation the or loss home in result can stay prison a since process, homelessness a of start the be also can it process,exclusion the of chain the in link last the only not is prison illegal them warns, Homelessness making on Observatory is European the that Moreover,as punishable. strategies” and “survival their that rather of but criminalisation situation, the their is to it due behavior criminal of levels higher exhibit (Seymour arepeople over-representedHomeless arrestpopulations in prison ratesboth in and of law (Rivera, 2004). rule the under states democratic and social to inherent systems criminal of nature criminal exceptionality are beginning to demonstrate a dismantling of the protective The people. homeless crossover for between the criminology systemof intolerance and the culture proceduralof emergency and exceptional an of speak cannot we prevail.Therefore, Punitivism of resurgence the Lawand Criminal Symbolic which in situation problematic a of verge the on level, European the at are, we that say Law of the Enemy is being applied to homeless people in a generalized way, we can Having said this, we consider that while it is not possible to affirm that the Criminal intervention endedtheirdream. wonder how we’re going to keep alive one more day...”. a havingfind way not to weto out, but need all, and crisis the with time, best the they say who society.the not Wein now’s integrated that be know and situation, work or “study to want the by affected Africans young two Ebeneger, Ngoleke Waiand Abdulai of words the were These expire.” to about is that food us bring theysometimes weand so eat, us can help to wecountrymen times our Other ask have people Some emergency.[permission to] eat at the soup kitchen, and nutritional sometimes they bring us back leftovers. a is here have we “What newspaper. regional a to livedthey which in conditions inhumane the about complained there living people the mortuary, the raided police the before days threecoincidentally, The building’s owner was instructed to prevent its possible occupation. Perhaps not carried out to eliminate an area that promoted exclusion and unsanitary conditions. http://www.deia.com/2011/09/12/bizkaia/bilbao/somos-invisibles-para-la-gente tanatorio-de-basurto http://www.deia.com/2011/09/15/bizkaia/bilbao/una-operacion-policial-desmantela-el-asentamiento-del- 2005). This should not be taken to mean that homeless people homeless that mean to taken be not should This 2005). al., et et al., 2010). Across the EU in recent 6 The police intervention was thus was intervention police The 7 Three days later, the police Penalising Homelessness  Chapter II � 67 et al., 2004). It depends, among other One has to be a citizen and a person in order to violate the Criminal Citizens Law of the (Gracia, 2005). The Criminal Law law, criminal this of application the through created of are targets these rather, targets; the Enemy has no real, empirical not before. As a result, the Criminal Law of the Enemy applies to citizens whose condition is by a degraded (usually court or decision (and administrative) therefore not of necessarily the representative people’s will) to subject them to such a set of Manuel Cancio Meliá (2006) argues (2009) Núñez Ignacio that José viewpoint, this From there citizens. are beings are human All no Law. “enemies” under Criminal based on Dignity. Enemy of the against Criminal Law six arguments employs Law of the Enemy Human Rights and the Criminal variables, variables, on the opportunistic use (or not) of and poverty exclusion by politicians looking for media attention or seeking to send messages of reassurance action or to the population. social Thus, following the thesis of Symbolic Criminal and Law spaces public regulate that rules and laws of creation the cases many in Punitivism, on based applied be to up set is framework the rather, situations; all in apply not will effect real a have may that one subjective a perhaps and decision, police or political a on people. But we must not lose sight of the fact that poverty and homelessness are not a voluntary lifestyle decision –– they are problems associated with exclusion. social It is worrying to see the spaces current across practices Europe governing that homelessness are and homelessness increasing criminalisation on of policies public poor the Some and problem. homeless the exclusion, populations, of trying causes institutionalization to root render the them and addressing invisible than rather may be driven by considerations that being is agenda political European the are in homelessness of incorporation The people. not at all aimed at helping homeless interpreted in some countries and by some sectors to mean that homeless people should not be going on to the and a street, therefore shelter need not be voluntary –– they should be physically forced into shelters. Another way of interpreting it is for by, example, removing homeless people from the areas of the city frequented by tourists. The possible legislative development of such measures, together with Symbolic Criminal and Law Punitivism, would be truly dangerous, since (although in some cases under the guise of humanitarian This reasons) Enemy. it the of can Law Criminal the in culminate can open which action, policy arbitrary the door to means criminalizing people before they commit crimes, disproportionate penalties, and minimalist procedural guarantees. Practice will vary country to country since homelessness can be presented as a public order problem associated with alcohol drugs, and crime, or from the perspective of people as victims of poverty exclusion and processes with needs, as shown in the Press: a Written Discourse Analysis” (Meert study on “Homelessness in the for transformation and in high profitability spaces. Eradicating signsof and poverty traces of the poor is often integral to “cleaning up” public spaces and 2011). (Fernàndez, enhancing their value 68 � Chapter II  Penalising Homelessness decision: they are problems associatedwithsocialexclusion. lifestyle voluntary a not are homelessness and poverty that remember to crucial It is Punitivism. of resurgence the and Law Criminal are Symbolic Roma)of brunt (including the migrants bearing recent not were who groups cultural and ethnic Other Enemy”. the of Law “Criminal the of use the by affected also are migrants homeless of number increasing the and migrants, is group target prominent most the countries, European many in measures, these of targets explicit not are people homeless Although deportation. and incarceration like dynamics through pressure increased the and benefits, social and services public to access their of penalising day-to-daytheir of criminalising theythe when streets,activities are the on the out earlier: described trends policy criminal the of blending the of result a as spreading is homelessness of penalisation the increasing provisions administrative and different legal of use the that undeniable is it But agenda. political European the on is homelessness eradicate to fight the where and legislation by criminalised directly not might is homelessness Europewhen time a in at evidence solid “enemy” without and exaggerated an seem be to considered are people homeless that Stating will. this embody exceptionality of culture the and intolerance of criminology The its legitimise to actions law or that use fails to presentto its legal attempt arguments as not a substitute does for moral that discourse. private, or power,public no is arbitrary.There are that actions also but legitimate, actions doubtless are their that explain actions –– to power wielding those has for law instrument of valuable discourse a the become explain, (2012) Asens Jaume and Pisarello Gerardo As Conclusions denying dignity, in this context, means denying one of the pillars of the legal system. Hence, essence. this core of the precisely at is dignity being’s human the first. And forces of nature or animals, then the human being’s humanity should be considered Lawslawsregulations.If of and ratherthan form addresshumans the in it demand to impossible be would it otherwise being, human the of substrate ontological an from stems doubtless latter responsibility.The their like attributes, beings’ human account into take must creation this itself, structure to wayAnd around.other the Law,the not creates that person the is entity.It natural pre-legal, a being, human the individual, the be only can –– sanctions its of especially and Law–– of target the (2005), Martín Gracia by noted duty. As legal a fulfilling of would result the conditions be only the sense, this In person. or citizen of status the preserve and acquirelaw applicable the to adhere to vow who subjects dignity,those of only as “worthy”LawareCriminal which The and not. Enemysourcethe the of positivises are citizens which defines decision) legal evena (not decision court a Thus, rules. Penalising Homelessness  Chapter II � 69 Immigration and Derecho penal y política Extranjeros en las cárceles Derecho penal del enemigo, second ¿”Derecho penal” del enemigo?” in Derecho y Economía, Editorial Fondo “Ciudadano persona ‘versus’ enemigo no- “El tratamiento penal del inmigrante en el derecho el en inmigrante del penal tratamiento “El “De nuevo: “¿Hacia el Derecho penal de la postmodernidad?” Risk Society. London: SAGE Publications. Spanish . Ed. Bosch. Barcelona. Barcelona. Bosch. Ed. Derecho. y Estado Immigración, Las ideas antigarantistas de Günther Jakobs y John Yoo.” In Análisis de la aplicación del denominado Derecho Penal del catalanas. Social and Criminolological Research of Lleida (GRID). University and Training Area, Campderrich, R. (2007): Aranda, Aranda, M.; Chaves, G.; Moreno, M.; Posada, JD.; Rivas, C. y Rivera. I (2005): El Populismo Punitivo. Análisis reformas de del las Sistema Penal reformas en y España (1995-2005). contra- Observatorio Barcelona. de Universidad la del de Humanos Derechos los y Penal Sistema Bacigalupo, S. y Cancio, M. (2005): 1998. Paidós, Barcelona: La sociedad del riesgo. version: Bergalli, R. (1986): “Los rostros ideológicos de la falsía resocializadora. El debate en España”. Doctrina núm. Penal 36: 577-597. Buenos Aires: Ed. Depalma. Busch-Geertsema, V.; Edgar, W.; O’Sullivan, E. & Pleace, N. (2010): Homelessness and Homeless Policies in Europe: Lessons from Research. FEANTSA. Capdevila, M. and Garreta, J. (2010): persona: “Ciudadania posible, ciudadanía deseable”. of Barcelona. University IV Seminar, Political Philosophy Cancio, M. (2006): Editorial Atelier. transnacional. Beck, U. (1992): Jakobs, G. and Cancio, M. (2006): edition, Civitas, Madrid. Catarina, A. (2010): The Detention of Asylum Seekers Migrants and in Irregular Europe. Report Committee Council of Europe. Assembly. Parliamentary on Doc.12105. Population. Migration, Refugees and (2006): MA. Chazarra, español: the of Magazine inmigración”. la con relacionados delitos los a Enemigo 1 no.1. pp 1-11. Science. Vol. of Social and Legal Elche Faculty R. Cooter, and Ullen, (1999): T. de Cultura Económica. de Cultura Tolerancia Cero, Virus, Barcelona. (2005): Alessandro De Georgi, Del B. Rosal, (2009): E-zine on Criminal Science and Criminology p. 08:1-08:64. y Criminología) no. 11-08, (Revista Ciencia Penal Electrónica de Edgar, B., Doherty, Press. Homelessness in Europe. Bristol: Policy J. and Meert, H. Fekete, (2009): L. F. “Foreign nationals, and enemy Webber, penology (2004): Bulletin nº 69 Institute Race European and the criminal justice system” Relations. of Race Fernandez, “Geographies G. of (2011): exclusion”. Governing poverty: risking rights? Open democracy. Freixes, (2008): T. “Integración europea y derecho de la inmigración (extranjería y multilevel constitutionalism en la Unión (2008) M. Europea)”. Balado, In References 70 � Chapter II  Penalising Homelessness Barcelona: Icaria&Antrazyt. Ministry ofLabor andSocialAffairs. (1999): M. Pajares, Europe. in Homeless Homeless are Summer FEANTSA. who People of Criminalisation (2007): E. O’Sullivan, Montero), A. and Sozzo M. (transl.Buenos Aires: AdHoc. Pena? la de allá más Delito el okn Paper. Working Rights”. O’Malley, P. (2004): Human and International CouncilonHumanRightsPolicy. Control Social Migrants, (2009): P. Oberoi, Política Dignatario”. y Garantista Criminal. Vol. Constitucionalismo 4,no.8,Art.3,pp.383-407 (1-25). del partir a Nuñez, J. (2009): Penal. Barcelona: Antrophos. cultura política europea” in Rivera, I. (2005) Política Criminal y Sistema (2005): G. Nicolás, Homelessness. FEANTSA. Brussels. Press: Written the in (2004): E. Meert, H.; Cabrera, P.; Christensen, I.; Koch-Nielsen, I.; Maas, R.; Maurel, Pluto Press revised edition. (1993): Young,J. and J. Lea, Económica. (2004): J. Lea, in favourofapreventivestate’,Punishment&Society;9;301. Krasmann, S. (2007): no. 32,Jan-April,pp.275-281. Territorio,Vol.X, y Sociedad Economía, Beck”. Ulrich de modernidad (2010): M. Korstanje, Madrid. (2006): M. Cancio, and G. Jakobs, presente”, EstudiosdeDerecho Judicial,no.20. Jakobs, G. (1999): Rights Policy. Human Geneva, Switzerland. on Council International 2010. Policy, Rights Human (2010):ICHRP Press. University Open Buckingham/Philadelphia: Modernity, Late and Risk (1998): G. Hughes, Santiago: EditorialJurídicaConosur, pp.23-36. jurídicos», transl. by Elena Larrauri in:Bustos,J.(1995):PenayEstado. Hassemer,W. (1995) pp. 97-102. 15 no. Sociología de RevistaEspañola neoliberal” Estado del formación (2011): I. González, Enemigo, Valencia: Tirant Lo Blanch. (2005): L. Gracia, “The Changing profiles of homeless people: homeless of profiles Changing “The Modes and Patterns of Social Control: Social of Patterns and Modes Mxc: od d Cultura de Fondo Mexico: Modernidad, y Delito “Un análisis abstracto del Derecho Penal del Enemigo “La ciencia del Derecho Penal ante las exigencias del El horizonte del finalismo y el Derecho Penal del Penal el Derecho y finalismo del horizonte El «Riesgo, poder y Prevención del Delito», in h eey t h gts n te nm within: enemy the and gates the at enemy The Understanding Crime Prevention. Crime Understanding ‘The enemy on the border: a nircó e España. en inmigración La European Observatory on Observatory European Analysis”. Discourse A L cii dl efr y u rpruins n la en repercusiones sus y welfare del crisis “La «Derecho penal simbólico y protección de bienes de protección y simbólico penal «Derecho “Redefiniendo la pobreza y lapenalidad: y pobreza la “Redefiniendo L scea dl riesgo: del sociedad “La rmnlzn Pol wo r Homeless?. are who People Criminalizing What is to be done about law & order? & law about done be to is What . Civitas, enemigo. del penal Derecho Critique of a programme eo y propuestas. y Retos ai ua nueva una hacia Implications for Implications Social Control, Social Homelessness ¿Prevenir la Penalising Homelessness  Chapter II � 71 Extranjeros Historia del The Police and Aspectos de la ed. and revised Viejas y nuevas The Functions of Functions The in O’Sullivan, E. nd La lluita contra la Punishment and Social The Neoliberal Government A Study of the Number, Profile ”Broken Windows. No hi ha dret(s). Regulating the Poor: the Regulating “An Elephant on the Doorstep: Criminal Policy “The Penalitzation of Poverty and the Rise of “La extrema pobreza y los derechos humanos”. Punishing the Poor: Cinc anys després de Tampere. II Seminar La expansión del derecho penal. “Immigration and Homelessness” , Instituto Nacional de Ciencias de Nacional Instituto Crimen, del Economía Política Criminal y Sistema Penal. Mitologías y discursos sobre el castigo: Homelessness and the Control of Public Spaces – “Entre el dret penal de l’enemic i la criminología de la racionalidades punitivas. Anthropos Editorial; Barcelona. University of Human Rights Observatory. and Criminal System Barcelona Rivera, I. (2004): il·legalitat del poder. Icaria & Antrazyt. il·legalitat del (1971): R. Cloward, and F. Piven, Public Welfare. 2nd ed: Vintage, 1993. Pleace, N. (2011): Homelessness in Research Europe Brussels: (2011) pp. FEANTSA, 143- 163. I. (2006): Rivera, D. (2006): Cròniques del 6. Virus Editorial. intolerancia” in Fernàndez, Rivera, I. (2005): expanded, Ed. Civitas, Madrid. Tosi, A. (2007): Criminalising the Poor? European 225–36. Journal of Homelessness 1, pp. L. (2009): Wacquant, Pinyol, Pinyol, G. (2005): Immigration Immigration and Europe. Barcelona: Council. Provincial In Capdevila, M. CIDOB and Garreta, J. (2010): Foundation, Barcelona política criminal en las sociedades postindustriales, 2 and Progression Routes of Homeless Persons before the Court of Ireland. Custody. Dublin: Government and in Silva, JM. (2001): en las cárceles catalanas. Social of Lleida (GRID). and University Area, Criminolological Training Research and Pisarello, G. and Asens, J. (2012): (edn.) (1968). Press Structure. Columbia University Sepúlveda, M. (2011): Nations. A/66/265. August 4, 2011. Assembly of the United General Seymour, M. & Costello, L. (2005) Anthropos Editorial; Barcelona. University University Barcelona. Editorial; Anthropos escenarios. posibles y presente and Human Rights Observatory. Criminal System of Barcelona (2002): A. Roemer, Editorial Limusa, Mexico. Penales, Rutherford, A. (2000): in Transition without Crime in New Labours Britain”, in Criminal Policy International Oñati Publishing, Hart Oxford: eds.), Rutherford, & (Green and Society. Series in Law Rusche, G. and Kirchheimer, O. (1939): Neighborhood Safety”. The Atlantic Monthly 249, Volume no. 3, pp. 29-38. Capítulo Criminológico Vol. 31, no. 1, 31, Neoliberalism” Jan-March 2003, Capítulo Criminológico Vol. 7-22. Wilson, J. and Kelling,G. (1982): Durham: Duke University Press. of Social Insecurity. Durham: Duke University Wacquant, L. (2003): 72 � Chapter II  Penalising Homelessness . Madrid: social). exclusión la Marcial Pons, 2003. de criminológico paradigma nuevo El (transl.tardía. Modernidad la R.Bergalli Sagarduy;R. and Presentation: Lno: ae ulctos Spanish Publications. Sage London: version: Modernity, Late in Difference (1999): J. Young, La sociedad “excluyente”. The Exclusive Society: Exclusive The Exclusión social, delito y diferencia en Social Exclusion, Crime and Crime Exclusion, Social PART II what does penalising homelessness look like?

chapter III Penal Visions of Homelessness and Responsibilisation in Belgium

Cory Potts Criminologist, Policy Assistant at FEANTSA, 2012

Lucie Martin Sociologist, Research Coordinator at Diogènes

APenal Visions of Homelessness and Responsibilisation in Belgium  Chapter III � 77 of réglements réglements Application of 1 The law of 15 May 1999 created a new article, 119bis in the New Municipal Law, which gives Municipal gives which Law, Municipal New the in 119bis article, new a created 1999 May 15 of law The Councils the authority to punish individuals who violate local that these 1999 finesprovided law could not apply orby rules punished to other penal already behavior laws and regulations with fines. The regulations. However, the law of 17 June 2004 extends making punishable the by administrative sanction sanctioning all petty power crimes of or contraventions listed Municipalities in book by II, title X of the Belgian Penal Code in addition to a handful of other more serious infractions, or délits, listed by number in the Cf. April http://www.avcb-vsgb.be/fr/Publications/nouvelle-loi-communale/ 2005 law. texte-coordonne/attributions-art-117-142.html 1. . In this report, we focus primarily on the ordinances in the focus primarily on the ordinances we communaux. In this report, that regulate behaviour in public argue spaces. that We using sanctions to govern bad behaviour tends to decentralise penal mechanisms intensifying while the at kinds the of same measures time imposed movement towards localisation on and intensification has rule been best characterized violators. by In Belgium, the this New Communal Law (NCL), which was adopted in 1999. Article 119bis In Belgium, the penalisation of application of homeless administrative sanctions, people which are non-criminal occurs disciplinary orders primarily through that impose the a fine or remove a permissionto granted punish individuals who byviolate ordinances found local authoritiesin what are called in order the NCL gives local authorities the power to create rules governing behaviour public in and to punish bad behaviour with administrative sanctions. The regulation of begging in Belgian cities illustrates how used local administrative authorities sanctions have to control and punish time beggars respecting a while ordinances local 1993 at law border, eastern that Belgium’s the on decriminalised region same begging. Walloon Since the in 1999 town a in example, Liège, for limited the have of practice begging to certain zones and during set Beggars hours. ocal variations and local discretion: the move Local variations and local discretion: gging through towards the regulation of be administrative sanctions these administrative sanctions represents the primary means penal through apparatus which controls the the presence and the behaviour public spaces of in Belgium. Their homeless use how reveals the treatment people of homeless people in an 2) and authorities local of responsibility the primarily 1) become, has Belgium in issue submitted, without much hesitation on the part of local authorities, to penal regulation. 78 � Chapter III  Penal Visions of Homelessness and Responsibilisation in Belgium also prohibiting more thanfourbeggars togatheroncertaincommercial streets. the measures taken in Liège against begging prohibits begging in front of stores while located in the Brussels-Capital region, an ordinance created in May 2012 inspired by The City of Liège hardened its ordinances by adopting, in May 2012, a rule that rule a allows2012, police to arrestMay habitual beggars. in adopting, by ordinances its hardened Liège of City The 5. 4. 3. 2. ordinances under infractions committing with charged being are homeless “the Craene, De Phillip homelessness. with speaking for the associated Daklozen Aktie Komitee, behaviour has observed on target this point that clearly in Antwerp, they homelessness, mention explicitly not do ordinances the though Even begging. to Local ordinances apply the same rationale to a wide range of behaviours in addition correct forbadbehaviour, likebegging. to order in sanctioned be must who individuals among problem a as homelessness to create specific rules responding to specific problems. In this way, ordinances view at exist regional or national levels,that the NCL institutes a practice factorsthat allows local authorities by caused phenomenon social a as homelessness instead treating clear: of is localise to movement the behind rationale penal The behaviour. governingbad/antisocial ordinances adopt lawmakersto discretion of margin wide local a givenare which in patchwork regulatory a is reveal examples these What begging. mentions specifically in that ordinance no behaviour is there Charleroi, of neighbouring regulation the how town Namur,a example,In for NCL. the throughdecentralised become demonstratehas public also beggars on restrictions decided have that towns begging, on restrictions to addition In officers or security agents to disperse beggars and force them to circulate in the city. is begging police officials security local allowslaw where The week. the throughoutrotate permitted zones the since city the in presence their stagger to forced are meters across, in tunnels and on bridges. city’s the that such border, lawmakers have used the NCL to introduce nuanced restrictions on begging, be accompaniedby anaggressive animaloranatriskofbecomingaggressive” (ourtranslation). beggarsmaynot 8: years Art. 16 old. than less of minor a companyof the in beg to forbidden is it 7: Art. decide whether or not to give alms, beggars may not solicit passersby nor hold a bowl or a similar accessory. or to private domiciles. §2 It is forbidden to beg in street intersections. Art. 6: place at the same time. Art. 5 §1: it is forbidden for beggars to block access to public spaces, to businesses at the same time. §2 No more than four beggars are authorized to be in the arterial road or to be in the same 7:00AM until noon on Saturday. Art. 4 § from 1: and no Friday more through Mondaythan from two 5:00PM beggarsand are8:00AM between authorized permitted to is 2011:be begging in 3: the “Art. same place According to Liège’s communal ordinances, “Règlements Communaux de la Ville de Liège” published in July “Le règlement de police de Charleroi de 2005, modifié en 2009” which contains 10procedures contains which 2009” en modifié 2005, de concerning begging. Charleroi de police de règlement “Le Cf though thesespecific behaviours are already prohibited by localpoliceordinances. by aggressive dogs or people who stand near you when you take money out of an ATM” (La ), Libre even ordinance concerns only “people who are drunk, who insist on receiving something, people accompanied It is surprising to hear Etterbeek’s bourgmestre announce in the press, on the subject of begging, that the ofthecommunal copy worker. Athird infraction isconsidered a asamenacetopublicorder andmay result inarrest. by accompanied the beggar to regulations. A second infraction results in a subpoena being issued as well as an intervention by a social issued warning official an with beginning The procedure leading towards an arrest works according to a series of sanctions that increase in severity, forbids begging in narrowin passagewaysbegging forbids réglement fivethan less 3 In Charleroi, a town on Belgium’s southern 4 Finally, in Etterbeek, a district (commune) in order to permit passersby to to introduce to not 5 2

APenal Visions of Homelessness and Responsibilisation in Belgium  Chapter III � 79 , the novelty of et al., the novelty 43). According to this pretence, our translation). By permitting local authorities In local this ordinances way, in Belgium will not mention 6 as Philippe Mary and Dominique De Fraene describe the rationale rationale the describe Fraene De Dominique and Mary Philippe as (Warsztacki 2012, (Warsztacki This characterization leaves out This leaves the characterization inherent complexity of legal but every system, especially Belgium’s: the linguistic country divisions, incorporates economic its inequalities northern separating and southern regions, as well as cultural and political tensions that are manifest in the struggles for local autonomy against federal power. In this context, “security” has a definite“feeling meaning, typically of characterized security,” as as a well as a political authorities. meaning, that is, “security” is the responsibility of local So, homelessness is seen as a social failure that the penal must system correct not through the immediate intervention of the full force of the but law, through application the of an expanding number of measures, sanctions, treatments, services, agents and procedures. to regulate “nuisances” without specifying behaviour that constitutes a nuisance, that permitted to districts apply and sanctions towns to (communes) behaviour are Meershaut For consider offensive. subjectively local lawmakers the penal system in Belgium acts as if the solution to any conflict exists as a legal solution, primarily in the form of a legal sanction. Although an inherent optimism system’s penal the in lies premise the improve! can individuals premise the underlies individual behaviour. by correcting conflicts belief that it can resolve If we step brieflyaway from localregulations,we can put the localisation of penal of into a context to a penalising in explain measures theoretical order the evolution rational over the last 40 years in Belgium. This premise rationale that is the characterised penal by system the is capable of responding l’aide à prétention to all social problems, a in their essay on community sanctions (1997, onsabilisation – a phenomenon of responsabilisation Localisation as gins of the penalising rationale the historical ori administrative sanctions exists primarily in the fact that the application of sanctions sanctions of application the that fact the in primarily exists sanctions administrative tolerance. of culture has ended a previous 6. that prohibit non-authorized public gatherings, finding themselvesresponsible for many fines. Sometimes for thousands of euros. Theywant to chase the homeless from the city” At this point we are homelessness through the of perspective local ordinances that would social restore no longer talking, as order through above, restricting bad about behaviour. This the is to penalisation say, we of are approaching the “homelessness”, a social phenomenon, from but the condition will of being homeless. sanction Another way of behaviour explaining this of stemming homelessness in treatment Belgium is to point out that the same sanctions that target the manifestations of homelessness also target minor penal infractions, such as petty theft or graffiti. In either case, lawmakers are notan callingseize to sanctions foradministrative use anlawmakers Instead, interventionlaw. with the of force full the opportunity for which correction, imposing by the a achieves penal process system of responsabilisation. 80 � Chapter III  Penal Visions of Homelessness and Responsibilisation in Belgium epe mkn ad cnign o dmntaig epnil sca behaviour–– social responsible demonstrating on contingent aide making people, 9. 8. 7. 7). system(Mary,operatedthe how of 621-23;logic 1998, and 156- 1996, Cartuyvels, insecurity approach marked a significant reconfiguration of the content, application, an of adoption system’s penal Belgian the 1990s, early approach.the in our primarily of Beginning out entirely security write to not is goal our time, same the At as essentially the product of policies that penalisation claim to increase “security” or of “public order”. phenomenon the seeing without homelessness of penalisation employment in order to become eligible for social aid (2012, 23). (2012, aid social for eligible become to order in employment on the right to work, the January 1993 law made individuals responsible for seeking providingof individuals instead to dispersedaid: aid state social Belgian the how in shift historical a represented law 1993 the Hamzaoui, Mejed For people. homeless to integrate/push individuals experiencing social exclusion into work, which includes designed contracts integration” “social created also law 1993 January the begging, the 1891 law on 12 January 1993. 1891January the 12 on law vagabondage were criminalized in 1891 in Belgium. The Belgian parliament repealed and Begging realm. social the invadingrationale penal the of example confounding archaicBelgium’s of lawsdecriminalisation The prohibiting vagabondage provides a penal system claimedasitsown. the that problems became increasinglysphere social the to belonged that problems 1980s, the since that demonstrates Mary 684). (1998, system penal country’s the when he characterises the same process as the invasion of Belgium’s social state by neutral” approach to social problems (1996, 166). Philippe Mary pulls fewer punches a movement away from positive prevention measures in favour of a penalised “non- guaranteeto security.claim Yves developmentspolicy Cartuyvelsthese describes as state’s increasingretreatthe affairswhile to economic from state interveningin the after 1970s,caused 1990s and the 1980s the through in adopted policies liberalised state of series a social which Belgian the in crisis the followed risk penal with failure social Equating risks. penal as failures social see to tendency system’s penal Belgian the of result a as Belgium in homelessness of penalisation the Wesee can does notexplainthelegalmechanismsby whichhomelessnessbecomespenalised. practices that disproportionately target the poor and homeless people, security alone text by Melechoir Wathelet, called“Pari d’unenouvelle citoyenneté” (“Wagerforanewcitizenship”). 1992 January a reproducedwasin addiction, drug and delinquency youthimmigration, on focused which Flemish right far of the representing number candidates by surprising victories a elections, municipal 1991November the in elicited, which 1991, May in region “Security” became a political and penal priority in Belgium following a period of urban rioting in the Brussels that individualsare responsible forfinding work withassistance”(mytranslation ). principle towardsthe society byguaranteed all for work to right the of principle the progressivelypush “These activation measures were inscribed in a framework of opposition to social rights, which served to à l’intégrationsociale) law,May2002 droit 26 le integration”a was(concernant integratedsocial into to right the “concerning begging and vagabondage decriminalized which solidaire), plus société une pour d’urgence programme The 12 January 1993 law “containing an urgent programme for more solidarity in society” (contenant un 7 But while “reducing insecurity” may describe a large and growing number of number growing and large a describe may insecurity” “reducing while But 8 In addition to decriminalising vagabondage and vagabondage decriminalising to addition In party whose “security platform”, platform”, “security whose party Blok Vlaamse 9 For homeless For APenal Visions of Homelessness and Responsibilisation in Belgium  Chapter III � 81 or régionalisation

10 formateur in 1992, created local security contracts that would and police chiefs, made it possible to pursue penal objectives through social through objectives penal pursue to possible it made chiefs, police and bourmestre These measures would be pursued through the 1990s and into 2000. 11 “During the nineties, however […] dismantling the social state social reducing policies to questions of individual that and assure treatment the would was penal became a more and more remarkable have for may policies the that socialisation to pretensions beyond that, such state the for institution central 1998, 686, my translation) to speak of the penalisation of the social” (Mary, able exhibited, one was Melechoir Wathlet, Melechoir the Wathlet, government’s aide provide to municipalities to fund local penal These under innovations. innovations, the control of commune’s the projects: the contracts installed, for example, SEMJAs (Service d’Encadrement Alternatives), de a Mesures Juridiques service responsible for (Travaux d’intérêt general). helping petty criminals execute community service orders 10. 11. Yet by throwing penalisation out the window, the 1993 law let a penalising rationale rationale penalising a let law 1993 the window, the out penalisation throwing by Yet in through the front This door. penal logic legalised the practice of distinguishing between worthy and unworthy recipients of social aide while presenting social at exclusion as the the fault same of irresponsible time individuals. Following this line of thinking, the penal rationale justifies targeting the irresponsiblewhose refusal to individual adapt to social norms is seen as a risk. penal David Garland, the describing between contact how explains England, in welfarism” “penal of history the rationale and social institutions forms a continuum that presents social problems as essentially problems of discipline (1981, 35). the Following adoption Garland, of penal Mary welfarism in traces Belgium through the construction end an becomes of social, or penal a whether norms, to social/ adhering which in state security in itself––deviating from the norms automatically means a penal sanction in society problems such as unemployment, or health problems 44). Consequently, (2001, the lack of housing––are no longer attributed to social causes but to the failure of term the use Fraene De and Mary laws. to conform to individuals that is, seeking and maintaining employment––replaced a responsibility. with a social criminal responsibility fragmentation to describe the mechanism by which the penal apparatus invades the invades apparatus penal the which by mechanism the describe to fragmentation social sphere, a mechanism of responsabilisation. Fragmentation occurs when the penal system isolates risk groups while also fragmenting and localising the justice (Mary and apparatus 1997). De Once Fraene, isolated and placed under the control of the a risk local factors authority, manifested by a group become targets of penal because intervention. Yet they are isolated and fragmented, the risks are no longer individual at risk. the fault of the social but personal, Decriminalisation of homelessness in Belgium follows this pattern of responsabilisation. responsabilisation. of pattern this follows Belgium in homelessness of Decriminalisation the punish to possible it made and 1993 in created were contracts integration Social contracts. the in out set terms the to agree to refused who those of non-conformity Next, in line with the government’s determined programme and the legislators to local problems, to respond effectively to more in order apparatus localise its penal the at crime to respond to powers new authorities local gave Interior the of Minister local level. As regards homeless people, the important behaviour change sanction to came, permission as the authorities we local have said, gave NCL on the 13 when 1999 May that had been decriminalised only six Put years prior. more decriminalising simply, homelessness of manifestations the target to possible it made 1993 in homelessness 82 � Chapter III  Penal Visions of Homelessness and Responsibilisation in Belgium the Administrative Sanctions: of regimes the under increased has repression that found and discretion of margin this Vanderon Ann focused and Steene Gutwirth Serge Hert, PaulDe Meerschaut, Karen by lead to study orderA space. in public of discretion occupiers “menacing” of example, marginfor target, wide a the police while the allows rules, laws the these of of ambiguity violation a constitute eventually would homelessness access to a public space. behaviour.menacing 50Article wouldthat activities all bans deprive individual’s an or security” public public and “menaces blocks the security that passage of pedestrians behaviour or public cars on all thoroughfares concerns while forbids Article 34 forbids all which 32 Article III, passageways, Chapter Under hours. 24 longer than period any for public in camping forbids 24 with article neighbours and odours bothering unpleasant forbids 23 article public, in bathing forbids 20 article places, public “dirty” to offense an it makes ambiguously 12 Article public. in butts 10discardingor public in spitting public, in defecating or cigaretteurinating forbids Article places. public hygieneproprietyin and concerns d’Ixelles) Police de General Brussels-Capital region. Chapter II of the Ixelles’ Municipal Police Ordinancein (Réglement municipality Ixelles the by enforced regulations the example, for Consider, same timeobscuringthemeanswithwhichsanctionsare applied. from the sanctions. Together, the NCL decentralises the desire to punish while at the bad behaviour, assign agents to sanction that behaviour and eventually, collect fines targeting rules new create to power realised the authorities local fully gives that structure penal a around power municipal consolidates second The municipalities. individual to types up left are targeted is the targetit which to with intensity constant, employed the and agents behaviour the remains the target, rationale to choose penal municipalities the behaviour NCL’s of the while because decentralises first power The above. mentioned trends two the to now returnedWe’ve social servicesorhousing. access to inhabitants of right the acknowledging without translation) (our places” public and buildings public roads, in peace and security propriety,cleanliness, of text. the in inhabitants with visible the advantages that come from excellent police, especially in terms is NCL the providing of for responsible “are municipalities that example, for notes, IV(2) Chapter nature penal the Indeed, manifestations. its penalised instead, but homelessness “criminalised” longer no that sanction penal of type new a with loitering, and urination public roughsleeping, as such 1999, in 12. Réglement Généralde Policed’Ixelles:www.elsene.irisnet.be/site/downloads/rgp.pdf. udny per o e uihbe cs n oie euain o are or regulations police in acts punishable be to appear suddenly either transport public on music playing and begging spaces, public in and spitting burqa, a wearing urinating as in public, the such hanging around acts of homeless people that and caravans shown has Region Brussels the administrativelawin on the sanctions of application ...the 12 Clearly, the day-to-day activities of a person experiencing APenal Visions of Homelessness and Responsibilisation in Belgium  Chapter III � 83 13 suddenly suddenly prosecuted or are more prosecuted and fined than before the sanctions. (2008, 4) on administrative law “More “More and more often, security policies are based on territorial units represented by neighbourhoods. Their coherence is not called into question, the in balance overall the from thus resulting phenomena the and implemented, be to policies and problems favouring a fragmented view of the city and city escape analysis.” its Jeremy Waldron draws our draws attention this towards individualising Waldron Jeremy mechanism in his famous 1991 essay on homelessness. Although Waldron does not the homeless it of is localisation the that process renders use “localisation” in his essay, the term vulnerable. And it is the process of Belgium’s penal since rationale This the localisation 1970s. can be localisation found in theory, that describes the evolution of practice in and Fraene, De and Mary by described responsibilisation of principle a as since the 1990s, when Belgium’s penal 6). (Mincke et al., 2012, structure was fragmented and localised These municipal regulations and the penal rationale they convey are the mechanisms mechanisms the are convey they rationale penal the and regulations municipal These that penalise poverty in Belgium And today. they provide more than just a means to reduce insecurity: administrative sanctions give voice to a that sees in penal every conflict the legal possibility to system treatment apply drug an housing, individualised to sanction. access That increased like solutions social have might conflicts programmes, or by simply providing public toilets not forced to so urinate in that public figures only homeless partially into people this penalrationale. are It is more important to maintain the possibility for a penal intervention in the case of an individual. by misbehaviour In addition to widening the enforcement net, Smeets notes with concern that since since that concern with notes Smeets net, enforcement the widening to addition In 1993, the overall number of security agents responsible sanctions for enforcing has municipal grown in line enforcement power appears to increase in inverse proportion with to the clarity of their their diversification to 205). (2005, objectives the point that their 13. Another way of tracking the evolution of this rationale is to reach further back in history by returning to the law vagabonds of remove to 1891 police that allow would that criminalised law a homelessness. proposed legislators In Belgian two 2007, and beggars from sidewalks and transport them to a social service What provider. the criminalised deplore is how the legislators motivation the law’s stands out from the in used, has Belgium “historically, that noting begging, and vagabondage of past case of these problems, hard and fast (Document repression,” législatif n° 4-325/1, our translation), a history the legislators leave behind as they empower the police to force homeless people into accepting social aid. The desire for more “security” certainly supports the contradiction in this in law, which the lawmakers are to able criticise the history of criminalising homelessness while simultaneously seeking to empower the police to constrain homeless people to accept social aid; indeed, the claim lawmakers in the law’s text that homeless people are contributing to the 84 � Chapter III  Penal Visions of Homelessness and Responsibilisation in Belgium o eape i i cmol kon ht oie fe tl hmls pol to people homeless tell do ordinances often rule––local any of violation police in not are they that although along” “move known commonly is it example, ordinances. For local in found not are that acts other repress may police sanctioned, be not and prohibited formally are that acts character: out carry ambivalentmay people homeless its while and spaces public in people homeless of behaviour of the management local the community demonstrate bypractices These receivedfew. a complaints name to of members, number the and public) or semi-private, formal rules, the nature of the place where an infraction occurs (e.g. privately owned, a homelessperson remains inacertainplace,theobservation ofcertaininformalor time of amount the etc.), landlords, and guards security owners, business officers, of personal relationships between homeless individuals and authority figures (police quality the as such sanctions, apply authorities local how influence factors Many also while spaces public in people homeless exposing theparticularlydiscretionary character ofthismanagement. of management the of character works social and localised reinforcedthe both discussions These situation. complex officers more a illustrate police strict people, of homeless image with an give interviews Belgium enforcement, in behaviour public regulating texts local the If behaviours andallocatingsanctions Local management:neotiatinspaces,assessin and tends,intheBrusselsregion, tobeanegotiation,notforegone conclusion. discretionary is enforcementRather, that exists. showed seldom it law the of letter the story.differentof enforcement a strict tells that researchapplication found Our the proposal may read, and as glaring as the contradictions may seem in theory,behaviour.repress bad as troublingto their As right the demand time same the at while confusion inherent to apparent any liberal policy that would legislation’s claim to promote the freedom contradiction the of a individuals of product the as individuals repressing explain and aid providingbetween could we article, 1991 with Waldron’sline In confounding. be can proposal 2007 this in found kind the like Irony the rightforpoliceto“correct” thebaddecisionsmadeby homeless people. ensure2007 to appearsin priority the aid, social to access ensured 1925 in priority the If intervention. police a follows it that in only sense makes people homeless to aid social clear,providing makes proposal law 2007strictly.Today, lawthe the as that police interventions in the past placed social concerns above the need to apply 12). 2005, suggests article the (Coumans criminalised, were begging and prison vagabondage although is, That in them putting of instead providers service to begging social and vagabondage for arrested those bring to ordered been had police shameful the despite deplorable history of criminalising homelessness in Belgium, since 1925 in Brussels, that mention to beyond neglect stretches lawmakers law The this concerns. behind security rationale the Yet insecurity. of feelings in rise APenal Visions of Homelessness and Responsibilisation in Belgium  Chapter III � 85 One fact, however, 14 ). Where there our there translation). Where 16 :163, More than the physical presence of 15 “territories in themselves, in the sense that the . It is difficult to measure the frequency with which police revert revert police which with frequency the measure to difficult is It masse. en The example recounted during one the at interview of order: along” a group “move of a people of who example an occupied for provides a provider long service time health the mental a of front in sidewalk request of the the police service arrived provider, on scene to ask the occupiers to leave the sidewalk. While a group may be tolerated for months in the same location, it’s possible that they are suddenly, leave to asked unofficially, and a place from individuals impose that the police decide to remove and what factors to this type of order had otherwise been tolerated. they where For example, in Etterbeek, the recent ban against begging in commercial zones responded with police the same zones. Interviews number of complaints about the homeless that originated from to a high officers that took desire placethe beforeand help theto ban desire went the intoare which effectdemands, revealed competing the between extentposition toawkward whichan in thecaught officersare to drive them out. Because begging was never formally outlawed, officers could notrespond directly to the complaints of storekeepers, who preferred to see the There homeless was entirely. no removed in framework which the police could operate, that responded directly to the storekeeper demands that motivate their intervention. The police were left to “ménager an la for chèvre, opportunities few le offers chou begging et non-offensive le if yet, loup”––in And other interests. conflicting manage to words, intervene to police the required community the in relations good maintaining intervention, police official all the same on behalf of the storekeepers. The homeless sometimes enter into relations where they receive privileged access during night at platforms to subway restricted to access or places facilities hygiene to access as such “off-limits,” that are the winter. stands above the rest: enforcement of administrative sanctions appears to respond closely to complaints by business owners. are are dense social networks, where individuals recognise one another as members of are order pre-existing a to affront an as seen are incivilities where and community a tolerating Therefore, members. community of minds the in public longer no such as manage to themselves people homeless of capacity the on depends people homeless and maintain good relations with community members and residents who occupy the same to of space. which homeless The the people degree presence is legitimate others with have homeless the that relationships personal of quality the on depends found. are they visit the places where who frequently But the legitimacy of an encampment also depends on the social structure of the neighbourhood where it is located. Homeless people encounter in certain more neighbourhoods that are difficulties homeless people, what bothers business owners and other community members, and determines police intervention are the tracks, traces and render signs that 1973) (Goffman, offenses” “territorial that constitute which and homeless leave people illegitimate. the more of public space all their occupation 2002 territory is a community” (Zeneidi-Henry, 14. 15. 16. Obviously, this trend–the fact that enforcement of administrative sanctions depends depends sanctions administrative of enforcement that fact trend–the this Obviously, on personal relationships public the example, For places. semi-public between in interventions and interactions governs homeless people and security transport authority forces––also in Brussels, the STIB, has adopted prohibited The a behaviour. rules include list restrictions on eating, of smoking, aggressive rules concerning and behaviour, restrictions on disturbing other passengers with one’s one’s odour, belongings or by one’s presence. In addition, the STIB employs its own security not officially authorise the police to issue a warning. such 86 � Chapter III  Penal Visions of Homelessness and Responsibilisation in Belgium property. STIB leave to asked simply areinfrequently.likely, violatorsviolatorsMore rule on willingness to impose sanctions. In fact, STIB security agents only impose sanctions a suggests measures2011). so of (STIB, array begging this encourageYet alms if to not giving as from refrain to passengers inciting system PA network’s the over announcements played also agency property.The STIB a on begging included on prohibition have regulations STIB’s the 2007, apply since importantly,and More violations sanctions. rule to quickly respond to agency the permits which force, 18. 17. demonstrates a margin of tolerance that is the rule rather than an exception. characterised by the limited conditions of access that these places impose, allow impose, places these that access of conditions limited the by characterised Belgium, in places “semi-public” proliferationof the For example, attention. further Nevertheless,threatenedtolerancebytrendis numerousdeserveof factorsthe that within communities. tolerance of zones various to leads that situation a violators, potential and agents between solidarity of pacts alongside occur officially, they not frequently,if occur may displacements and restrictions while that find we claims, two these Between discretion. of margin significant a within homeless operate sanctions issuing for a responsible where (e.g. people homeless individual is at risk of receiving a involvesanction)––is above all––local. Second, the agents that situations “problem” of return to two claims whose validity appears well established. First, the management patchwork the analysis in given gaps the in this fill by to report. may,We however, attempts the complicates further authorities local by people homeless on sanctions penal of application the on focusing reports of absence The penalisation. their of ratethe about arepeople homeless which with severitythe or Belgium in penalised propose general to a conclusion difficult result,is a it As agents. security other and such that the application of local rules is reduced to the assessment of police officers find in Belgium a similar trend of decentralisation of power among authority figures, Correspondinggoverningrules of localisation the to behaviour wespaces, public in interventions, apatchwork Conclusion: localisedpracticesanddiscretionary basis, between potentialrulebreakers andSTIBagents. power in which sanctions play discretionarya role in a negotiation, playedof out on a case-by-base question a is It sanction. a issuing by intervention an escalate to are left to decide according to their own assessment of the situation whether or not the rushofmorningcommuters arrives. STIB on overnightproperty. sleeping Typically, people of treatment campersinvite and morning each pass agents security leave to propertySTIB the before in found also is tolerance of measure same The Infractions are punishedby finesofbetween 75and250 euros. acts. menacing or immoral offensive, explicit by or of contact physicalundesirable state through whether improprietya intoxication, of state a in found be to or passengers other inconvenience or order public passageway,the a trouble obstruct to to defecate, or urinate publicly to or spit to “improper”), Among other prohibited behaviors, the STIB forbids improper usage of STIB property (without defining 17 The practice of sanctioning then, unlike the rules governing sanctions, governing rules the unlike then, sanctioning of practice The 18 Agents APenal Visions of Homelessness and Responsibilisation in Belgium  Chapter III � 87 (Common Front of Homeless of Front (Common SDFs des commun Front Ligue des Droits de l’Homme (The League for Human Rights) condemned the Overall, we may expect regulations in Belgium to become more and more explicit as explicit more and more become to Belgium in regulations expect may we Overall, guidelines that target homeless people and other socially marginalised populations. The newsletter, 2012 May its In highlighted People) a sweeping strategy that police using were in the city of Liège. The strategy relied on the enforcement of municipal sanctions concerning trash to sweep Liège’s homeless dwellers all in one night (“A Liège, être sdf ou mancheur deviendra bientôt un crime” 4). Finally, in the the Brussels Capital Region in 2009, transit system, the STIB, for its decision to ban begging on STIB property (“STIB : stop à la chasse aux mendiants!”). In the years to come, it seems––perhaps––that the enforcement of municipal sanctions will catch up to the threat posed by sanctions in the abstract. the general general restrictions against homeless people to take place over public. In a similar is invisible to the general land while entire the scope of this repression swathes of manner, renovations of existing public places that making stations, render STIB in the benches on spaces seats “defendable” between barriers installing example, for –– presence the rendering of practice insidious more a expose down lie to impossible it of homeless people in public uncomfortable and impossible becoming of a are penalising the feature practices geography without In this way, oversight. any human of public spaces. Also in appears to be increasing Pascal Debruyne, public in a severity. geography researcher from spaces, enforcement of the in increases out points that petition a together put has Ghent, of University the municipal ordinances use of municipal sanctions in towns in Flanders (“Interstedelijke coalitie voor ‘het stad’”). op de recht 88 � Chapter III  Penal Visions of Homelessness and Responsibilisation in Belgium References survivre. Paris: EditionsBréal.Print. (2002) D. Zeneidi-Henry, Rev. 39(1991): 295-324.Print Waldron,(1991):J. Freedom”of Issue the “Homelessness and L. UCLA en Belgique”DévianceetSociété2.29.pp201-219. Print. Smeets, S. (2005) des et publique travailleurs l’opinion sociaux.Ghent:AcedemiaP. de rue, la de habitants des croisés regards Philippot, P. and Galand, B. (2003): Les personnes sans-abri en Belgique: of de Bruxelles-Capitale2.pp1-13.Web. forum 26Mar. 2012. “Citizens’ (2008): E. Enhus, Région Studies. preventionBrussels and Brussels”, Security in Brussels. and S. Smeets, C., Mincke, Web. 4July2012. 1-15. pp 18. Bruxelles-Capitale. de Région Studies. Brussels ?”, Region regulatingCapital a Brussels rolefor therethe need Is for a Brussels. of municipalities the by sanctions administrative municipal of use “The P. Hert, De K.; Meerschaut, Bruxelles: Belgique, en Fondation Roi Baudouin.Print. question la de critique Etat communauté. la dans mesures et sanctions Les (1997): DF. Dominique, and P.Mary, Justice une vers Risques: ‘Actuarielle’ enEurope?” DévianceetSociété1.25.pp33-51. des Gestion et “Pénalité (2001): P. Mary, de traitement enBelgique(1944-1997).Bruxelles:Bruylant.Print. Mary, P. (1998) des hautesetudesensciencessociales. Ecole Diss. Représentationsdomicile. SDF.sans personnes des l’égard à des attitudes et sociales côté à Habiter (2009): M. Loison-Leruste, Web. 5July2012. http://www.stampmedia.be/wp-content/uploads/GASTVRIJE_STAD.pdf Journalisten Verenigingvan Vlaamse Media. Stamp praktijk.” GAS de politique “Interstedelijke coalitie voor ‘het la recht op de stad’: naar de alternatieven voor logiques 17 June2012. et “Émergence d’activation du social et de l’emploi” Pensée (2005): plurielle 2.10. n. pag. Web. M. Hamzaoui, en public.Paris: EditionsdeMinuit.Print. Goffman, E. (1973): La mise en scène de la vie quotidienne: les relations of Law andSociety8.1.pp29-45. Garland, D. (1981): “The Birth of the Welfare Sanction.” British Journal City ofBrussels. the Brussels: Bruxelles. de Affairessociales de des et publique l’Assistance Archives Bruxelles. de Villes la de Archives V. (2005): Coumans, les Belgique: et intégration verticale.” Dévianceetsociété.20.2.pp153-171. en prévention et ambiguïtés d’un modèle «global-intégré» entre concertation partenariale “Insécurité (1996): Y. Cartuyvels, : Délinquant, délinquance et insécurité: un demi-siècele : “Les nouveaux acteurs locaux de la sécurité publique Ls D e l vle gorpi d savoir- du géographie ville: la et SDF Les : Gtit, . n Vne, . (2008): A. Vander, and S. Gutwirth, ; APenal Visions of Homelessness and Responsibilisation in Belgium  Chapter III � 89 Commune d’Ixelles. Le conseil communal. “Réglement general de police police de general “Réglement communal. conseil Le d’Ixelles. Commune d’Ixelles.” Commune d’Ixelles. Zone de Police June 2012. 10 Ixelles-Bruxelles, Web. 2007. April Nouvelle loi communale codifiée par l’arrêtéroyal du 24.06.1988 MB 03.09.1988, err. MB 08.06.1990. Web. 17 June 2012. Publications/nouvelle-loi-communale/texte-coordonne/ http://www.avcb-vsgb.be/fr/ “À Etterbeek, c’est 4 mendiants par rue maximum.” L’avenir.net. Corelio, Corelio, L’avenir.net. maximum.” rue par mendiants 4 c’est Etterbeek, “À Web. 27 June 2012. enfermer “Faut-il les Interview. mendiants?” Lalibre.be. Willy. Demeyer, Web. 2012. Belgique,16 May Libre La Fabré, Geoffrey and Phillipe Carlot. “Etterbeek réglemente la mendicité Web. 2012. 27 June RTBF, commerçantes.” RTBF.be. dans ses rues crime un bientôt deviendra mancheur ou sdf être Liège, “A Jean. Peeters, Aujourd’hui ce n’est encore qu’une incivilité” Bulletin de Liaison 121 1-5. Print. (2012): l’Homme. de droits des Ligue La mendiants!” aux chasse la à stop : “STIB Communauté Française de Belgique. http://www.liguedh.be/2009/730- 5 July 2012. Web. stib--stop-a-la-chasse-aux-mendiants Serret, Pascale. “Mendicité : il Web. 2012. 14 May Corelio, est interdit d’interdire.” L’avenir.net. Warsztacki, Sandrine. “Cachez ce sans-abri Web. que 2012. 9 May Soir, Le je Alterechos. ne saurais voir.” Laws and ordinances: paper News articles:

chapter IV Criminalisation of Homelessness in Poland

Łukasz Browarczyk Research and Publications Coordinator in Pomorskie Forum na rzecz Wychodzenia z Bezdomności

Criminalisation of homelessness in Poland  Chapter IV � 93 Now let us focus on the image of street homelessness and the deeply rooted public rooted deeply the and homelessness street of image the on focus us let Now image of a homeless person. Homelessness is generally stereotypes. associated with The physical image of a homeless person as scruffy and unkempt, smelly, Homelessness is frequently associated with behaviours that are subject to punishment, to subject are that behaviours with associated frequently is Homelessness rather than with the fact that people do not have a roof over behaviours one’s include head. street drinking, These begging or vulgar and obscene behaviour that is subject to penalisation. So the penalisation of homelessness may be considered only in terms of behaviour that is obscene or This disturbs is public what order. is actually happening. A of quick headlines newspaper review using “a the words key homeless person”, “a railway station”, “a shopping centre”, etc. shows that street in the context of littering, disturbing public homelessness is mentioned in the press does What 275). item 2010 March 25 of Laws of (Journal behaviour obscene or order it mean for the homeless individuals? It all depends on the way homeless people occupy public space. And there is penalisation that specificallypeople; that is, targetsfindingreasons to homeless justify the intervention of uniformed services in public places. homeless people from to remove order The fact that one is homeless and stays in public places or sleeps in the streets is not is streets the in sleeps or places public in stays and homeless is one that fact The due to their difficult life situation, homeless subject to penalty However, in Poland. Local authorities. local by provided be should which aid, state to entitled are people food and clothing shelter, provide to required are –– entities commune –– authorities to people living in a commune given and homeless people entitled are to this form of support in Poland (Journal of Laws of 15 April 2004, No. 64, inadequate. assistance is largely item 593). This Social science research on homelessness shows that a number of people sleeping rough have experienced imprisonment. The considered causes fact of homelessness that or only these short episodes in instances experiencing the homelessness lives may is of of people be no significance here. What matters, is however, whether they were resulted they directly that from fact homelessness. the In for other merely words, penalised it were is people crucial homeless to whether determine homeless. In this discussion of the penalisation of homelessness I will first present image public’s the of discussion a by followed homelessness, of aspect legislative the of a homeless person and its consequences. Next, I will focus on the policy methods and used by railway stations’ authorities towards homeless people on station premises. I Finally, will present the most important aspects of street homelessness This Poland. of capital the Warsaw, in problem this with cope to used methods and of the issue of homelessness penalisation in Poland. a clear picture should give 94 � Chapter IV  Criminalisation of homelessness in Poland hs rget lal rvas h dsubne f eteis u i as shows also it determine but to used aspect aesthetics main the But of homeless. the disturbance of behaviour inappropriate the reveals clearly fragment This and peedpants.”(Osienkiewicz,2011). dirty their in benches on out stretching were profusely, swearing and eating sandwiches alcohol, drinking homeless, The stench. horrible smell could we “Suddenly sight. of out them keeping and people homeless removing includes which of space, aesthetics public the maintain to only serve that may laws exclusionof applications of to kind lead directly This station. railway renovated newly a of aesthetics the homeless people are denied basic human rights and treated as elements that disrupt homelessness which is frequently associated with aesthetic degradation. For example,of exclusion symbolic the discrimination of form deeper a demonstrate but people, threat to the image”. These quotes may not illustrate actual “a penalisation and of nuisance homeless a are who individuals” “unwanted as described are homeless The that thehomelessarenothreattoorganisers’image?”(wp.pl.2011). think they do or Warsaw in points strategic from individuals homeless unwanted the remove temporarily and 2012 Euro the before act to going authorities the “Are or indifference of acceptance as violence towards thisgroup. Let uslookatafragment well ofanotherarticle: as homelessness, with deal to solutions and methods inhumane of justification people, homeless of dehumanisation the towards leads homeless being of state the overprevail aspects aesthetic (Browarczyk,that 2010).fact view The from removed be should which disturbance aesthetic an as but active with addiction associated and a frequentlyscruffy appearance. Homelessness is is often seen homelessness not as a that social problem reveals fragment short This at theCentralStation.”(Torz,2012). “Now we can often stumble over drunk and smelly homeless people lying on the floor The followingisadescriptionofhomelesspeoplefoundinthepress: (categories housing inadequate 8-13). and insecure in living those as typology ETHOS the to according classified be can and homeless not are who beggars or addicts of groups describe to applied equally be can homeless the that to emphasised attributed features be the should It sight. from removed and punished be should who drunkards, beggars, scum, bums and petty thieves.as They are seen classified as individuals are they –– light negative a in perceived also but homeless as recognised frequently associated with value judgements. Scruffy-looking is individuals approach this are more, is not What only home. a have not do they that fact the from than itisinfact but i.e.roofless), applied to all 1, homeless people. This stems from the way category they look ––ETHOS and behave rather above homelessness of mentioned definition characteristics the that fact should sometimes be applied to a group of homeless people (please see FEANTSA’s the is problematic 2010). seems (Browarczyk person begging What homeless a to of resorting description stereotypical and the norms is this social –– with comply to failing alcohol, abusing Criminalisation of homelessness in Poland  Chapter IV � 95 acka Street they have to be sober. ‘And they clearly have ż Attempts to people remove who are considered to be homeless from the premises by the managers of railway stations penalisation of homelessness. These are merely aesthetic changes. or They boil down shopping centres are not perceived as Managers of Managers buildings and in premises which the homeless tend to gather consider would solution best The “solutions”. various tried have and troublesome be to them undoubtedly be assistance that responds to the needs of this group (i.e. effective social policy), but the managers are not part of responsibility the boils down to social proper management of sector, their and premises. Therefore, they their sole search for solutions that would be effective from frequently their point adopted of view. Solutions include and removing employing homeless uniformed services people (border for this purpose. (e.g. security forces), organisations, paramilitary from guards, police, railway railroad guards) stations and This fragment homeless the shows that fact yet the and another space public in issue littering to associated mainly refer with above mentioned street homelessness. Texts assistance without was developed system considering elements of street reality (“one According has to be sober”). This brings us to the national homeless support system. to government information sources Department (Ministry of Social Security of and Social Labour Integration, facilities 2010), Despite the lack of and credible able to accommodate people 22,529 were for people in 2010. homeless Social Assistance, data on the scale of homelessness in Poland, looks this to be number inadequate, seems is however, accurate. the structure What of facilities offering the homeless. assistance The number of low-threshold facilities to (i.e. those that accept residents under the influence of alcohol) isvery Shelters low. (24-hour accommodation) and accommodation) night-shelters (overnight constitute the core of the accommodation system, but both only accept people who meet are the sober required conditions and (i.e. have they been referred to programme in Poland the for homeless people who are facilities). addicted to facilitiesalcohol or low-threshold drugs Unfortunately, of and shortage there a is is there words, other no In spaces. public in aid stay who people homeless with work and alcohol) of influence the under residents accept (that be found only in bigger communes).not popular and may are programmes (outreach So, because there is no support for homeless people staying –– group left alone to –– in adapt uses resources to all the available existing conditions. public spaces, this In search of places in which it is easy to relatively satisfy their basic needs, homeless stations. people adapt to living at or near railway a problem with that’, say PKP passengers”. (Rusek, 2011). a problem with that’, say “The image we get is appalling: ‘the homeless drink, and urinate smoke, on seats later beg, taken up sleep, by travellers and defecate they do everything inside the building. Many find it obnoxious to look at them and to stay among them... Their to able be to order in because so be well as may [...]It unbearable!’ is stench horrible stay in the shelter at Stra whether whether a person is homeless or not not is not or home a has person a Whether is behaviour. secondly and –– firstlyappearance an aesthetic category physical –– considered. 96 � Chapter IV  Criminalisation of homelessness in Poland e nevn imdaey Ta i wy e s psegr t ntf u o any travellers, of will us firm the security notify The lounge. to pester the in passengers available people are ask numbers Phone we inconvenience. homeless why is that That immediately. information intervene we the have we “When from publicplaces: people homeless removing for reasons formal these provides management Station behaviour towards thisgroup. aggressive and hostile of scale the and homelessness on articles the in reflected is the other hand, from the stereotypes on homelessness deeply rooted in society. This from the absence of work with homeless people staying in the public space and, on hand, one the on stems, here presented homeless the of penalisation of form The hold negative stereotypes when approaching homeless people) is equally important. guards the which to extent the (i.e. people Perceptionpredispositions.homeless of towards homeless people will be more or less humane depending on the individual’s approach professional Their here. importance key of is firm security a in employed person use the of the to psycho-physicalpredispositions as factorsthe methods makes such Hence, what so. place and do to place specific given a a from removed in be works should who who decision person a words, other In homeless. do actually some is individual and which decide to homeless left are guards look security the that people means not) (some experience and feelings of basis the on homelessness to of ownIdentification approaches premises. their their from people homeless tochoose removing freedom the have clearly firms security and article is a qualitative analysis rather than a statistical review. Also, the management this homelessness on data credible relevantand of shortage the to Due subjective. is experience providers’ service and information of source objective an considered respect: this in information of be cannot providers.articles service Media homeless experienced, and sourcesreportspress two are There researched. been not homelessness has of sphere This homeless. the towards violence unjustified of cases on the removal of homeless people from public space. Also, there is no research on Unfortunately, this issue has not been researched yet. Nobody collects the statistics removed from certainplaceshave beennoted. services to ask them to leave. Cases of unjustified violence towards homeless people security the for enough is people homeless of appearance the even often very but the attract theyguards’ attention unless with their out behaviour or thrown in any not other way. are the people from This is people However, homeless the official homeless premises. remove version, to also but area the protect to only not firms security employ frequently Managers centres. shopping and stations railway, bus include These leave”. to them “ask euphemism, an use or,to them remove to try There are two types of places where the homeless are not welcome and the managers leading asociallyacceptedexistence. imposed on the people who find themselves in the situation that prevents them from Managers may have good intentions but this practice is, in fact, a form to the activities of taken up in orderpunishment to remove homeless people from the public space. Criminalisation of homelessness in Poland  Chapter IV � 97 , ł “We can intervene only when someone commits an offence,” says Marek Anio The aggression The of aggression the homeless security private staff people company towards may stem not only from negative stereotypes of this homelessness group and but hostility it may towards result from the lack the following: say and municipal police officers homelessness. Police of laws and regulations that penalise The term “pester” begging, to used refer to used probably in is it but means term the this what explicitly determine fragment is rather euphemistic. It is etc. drinking alcohol difficult to react promptly and remove unwanted “visitors”. I share 2011). for passengers.”(Rusek, station is only the view that a railway So far, the discussion has centred on the problems encountered nationwide. Now let Now nationwide. encountered problems the on centred has discussion the far, So homelessness of problem The Warsaw. in observed situation specific the on focus us of First Poland. in cities other in than characteristics different slightly has city this in all, there is not enough data on far the so levels of have homelessness (shelter) aid and institutional frequent attempts receive who those of registry a develop to made beyond go not do which place, in are projects small-scale only Secondly, futile. been the pilot phase the on data and coherent no is the there more, is issue What resolved. been of not has homelessness monitoring and assesment of non-institutional number of people sleeping rough. due Finally, to the limited scope of cooperation among small and source comprehensive no large is there organisations, and service institutions other by conducted providers and little knowledge of of the information on activities homelessness in The Warsaw. nature of capital homelessness of Poland may be in a bit different than the in other regions (for example, a large number of migrants sleep rough), but methods used to penalise homeless people staying in in public like places just vary are companies no Security different. law. Uniformed the guards breaking people and homeless see police they react when only profile psycho-social the and entity given a of policy the on Depending cities. other of the employees, they are more or less people. restrictive oppressive towards homeless A change in laws and regulations on offences would be a step fact The towards the avoid. to literal trying are legislators which homelessness, of penalisation real and that groups of homeless people are forced to stay in such public places as bus and stations for a railway longer period of time is indeed Solutions problematic. chosen the by of managers these places include employing security companies and closing railway stations for a few hours at night. It not only facilitates maintenance spending the night homeless people from of “clean and tidy station” but also prevents a railway in staying from people homeless discourage to supposed is This place. one in stations in Poland. railway large stations. This solution has been applied in most spokesman for the Kraków Municipal Police Forces. Unfortunately, it often turns out turns often it Unfortunately, Forces. Police Municipal Kraków the for spokesman that even the notification of offence yields little result. When officers reach the area, violate any regulations.” (Osienkiewicz, 2011). the homeless no longer 98 � Chapter IV  Criminalisation of homelessness in Poland sal fre hm o ev. hs s any eas o psegr’ complaints. declares waronthehomeless.”( passengers’ of because mainly is Warszawa Wschodnia (Warsaw East) train station is no exception This here and it also leave. to them force usually and choice no have authorities Railway often. more them see can we outside cold it’s and snowing it’s when Now, stations. railway at seen frequently are “Tramps towards applied practice homeless peoplestaying atrailwaytypical stationsobserved inWarsaw:a of example good a is quotation following The Supporting the Return of Homeless People to Society”, 2012 Edition, 2012). This 2012). Edition, 2012 Society”, to People Homeless of Return the Supporting within the programme of the Minister of Labour and Social Policy: “The Programme competition open of Railways(Notice State Polish programmeswith cooperation in aid conducted governmentthrough stations the railway at by homelessness made of scale attempts the reduce by to also but regulations violate who people not only by such practices as closing railway stations at night or removing homeless provedis problematic considered is space public the in homelessness that fact The is theirresponsibility. at firms it centresrailwayworking security as shopping the directed and to stations be will places public from people homeless removing or people homeless towards order.violence keeping concerning than Therefore,complaints rather place given a of aesthetics and image the on more focus Theyorders. manager’s the follow and regulations the execute guards security –– homeless the towards repressive more are companies security before, mentioned As premises. station the leave to them ask services uniformed offence, an commit rough sleeping are who people when but penalty to subject not is homeless is person a that fact The people. homeless Warsaw is no exception when it comes to typical practices and approaches towards from cold”(Szymanik,2012). people staying at the station to shelters or night-shelters where they find protection When homeless take to guards municipal and night-shelters.police the ask we outside, cold freezing it’s into turn otherwise would which halls from them removeguards security why is that station the at homeless the want not do “Passengers not the institution responsible for care provision to the homeless”, says Kurpiewski. is “PKP heartless. are they and outside cold is it that opinions are there situation, the about something do to try they when hand, other the On situation. shameful a is it that say newspapers the and react, not do authorities railway that say and smell the about complain passengers hand one the On Warsawfromstation. East people homeless about asked when jittery is spokesman PKP The have“We[...] in.” situation. step to this for Rail) (Polish PKP blame and angry are and Theyswears leaves.queue the of back the at man A disgust. her expresses and hand her other.Peopleeach crisps. at frontsome look wavesthe buy wants at to she lady A queue, womanthe homeless joins A hall. station the in kiosk frontthe in of queue when out us throw they Or passengers.Takelot. intervene.”theya to And passengersask them ask example:this therea is accost and drunk are who those only can’t come inside even for a moment. But the security guards say that they remove cold outsideeven thepoliceorder themtoletusinside.Nowwhenit’swarmer we Tutek.explains bad”, wesmell because out “Theythrowus freezingit’s when “But Ś wier ż ewski, 2012). Criminalisation of homelessness in Poland  Chapter IV � 99 * What arises from this opinion is the fact that one’s appearance is not the criterion used to determine whether one is homeless penalisation. The approach and or methods used homeless towards people are similar not the for homeless and the punishing of Cases that Poland. in cities big it other in and is Warsaw not in liable to attitude ambivalent clearly a is there and infrequent are homeless are they fact sheer such methods. of the public opinion towards “Appearance of young people who arrive at our airport at times does not differ much differ not does times at airport our at arrive who people young of “Appearance from the one presented by the homeless. But this remove them from does the terminal because they not do not look elegant enough,” mean he adds. that we should (Klimowicz-Sikorska 2012). In conclusion, it should be emphasised that homelessness is not penalised in Polish Polish in penalised not is homelessness that emphasised be should it conclusion, In legislation. There are no regulations according to which homeless people are not allowed to stay in certain places because they have no abode. punished People for cannot there their are However, be laws poverty. prohibiting such behaviour as of (Journal begging or 473) item 2007 April 19 of Laws of (Journal public in drinking of item Laws 25 275). March Private 2010 security companies who are responsible for also but centres shopping in or stations railway at order maintaining for only not their aesthetics, are the main actors in the penalisation of homelessness. It is not the fact that a person is homeless but it is rather the stereotyped appearance and behaviour associated with homeless people that is punished. These activities result solutions adequate of lack the from but homelessness penalise to urge the from not here, emphasised be should aspect One provision. service homeless of sphere the in namely the relatively high level of among awareness the managers of public space entities: programme programme is aimed at working stations, etc. railway homeless people near facilities for with homeless people (streetwork), providing Conclusion The amount of statistical data on homelessness in Warsaw and generally in Poland and in generally Poland The amount of statistical data on homelessness in Warsaw presented in the article is covered in insignificant,the article whichhas not requiresbeen widely explanation. researched and on there the penalisation are of homelessness. material. As The topic no mentioned the before, sources of of statistics information quality the to according analysed articles press include here presented Quantitative analysis would not be appropriate here as the results obtained would lack credibility. 100 � Chapter IV  Criminalisation of homelessness in Poland References wiadomosci.wp.pl, 14June2012. Browarczyk, L. (2010): Przemiany obrazu bezdomno obrazu (2010):Przemiany L. Browarczyk, medialnych? „Forum. O bezdomno O „Forum. medialnych? dzie szkic. „Forum. O bezdomno O „Forum. szkic. No Fear], oz 02 PP wypowiadaj PKP 2012. Torz Wschodnim”. http://warszawa.naszemiasto.pl, 14June2012. n Sca Itgain (00: Bezdomno (2010): Integration, Social and Ministry of Labour sam and Social Assistance, Department of Social Security taki lotnisku: na problem jaknadworcu?”. http://www.trojmiasto.pl, “Bezdomni 15.06.2012. (2012): M. Klimowicz-Sikorska, the consolidatedtextoflaw –CodeofPetty Offences. Republicthe of Sejm Polandof March16 of 2010 of announcement on Journal of Laws of 25 March 2010 and item 275. Sobriety Notice of the in Marshal of the Upbringing on law Counteracting Alcoholism. the of text consolidated the of announcement on 2007 March 28 of Poland of Republic the of Sejm Journal of Laws of 19 April 2007 item 473. Notice of the Marshal of the Assistance of12March 2004. Social on Act The 593. 2010item April No.64, 15 Lawsof of Journal zwyci pp. 2011. Usun wp.pl. Ś ś bezdomno Obraz (2008): L. Browarczyk, With NoFear], Szymanik, G. (2012): “Bezdomni ze Wschodniego: przepraszamy,Wschodniego: ze “Bezdomni (2012): G. Szymanik, znowu to PKP dworcaproblem”. http://www.mmgorzow.pl, 14June2012. poczekalni w “Bezdomni (2011): T. Rusek, bardziej coraz dworcach na natarczywi”. http://krakow.gazeta.pl, 14June2012. “Bezdomni (2011): M. Osienkiewicz, w-polsce-diagnoza-na-31-stycznia-2010r-/, 15June2012. http://www.mpips.gov.pl/pomoc-spoleczna/bezdomnosc/bezdomnosc- mierdzimy”. http://m.warszawa.gazeta.pl, 15June2012. wier ń 31 stycznia 2010. ż ęż wk, . 21) “edmi iml wdin n Dworcu na widziani niemile “Bezdomni (2012): D. ewski, y?http://www.gazetawroclawska.pl, 14June2012. Ł . Browarczyk (Ed.),Gda Ł . Browarczyk, M.D ą edmyh doc pzd uo 2012?.http:// Euro przed dworca z bezdomnych ś ci bez l bez ci ą wojn ń sk. ś ę ci bez l bez ci bski (Ed.).Gda ę ę ku”[Forum. Homelessness With Homelessness ku”[Forum. iao i edmy. Kto bezdomnym. i pijakom ś ci w przekazie medialnym – medialnym przekazie w ci ść ę ku”[Forum. Homelessness ku”[Forum. Plc. igoa na Diagnoza Polsce. w ń sk. ś ci w przekazach w ci ż e chapter V The Criminalisation of Homelessness in Hungary

Balint Misetics The City is for All (Budapest) Lecturer, College for Advanced Studies in Social Theory (Budapest)

The criminalisation of homelessness in Hungary  Chapter V � 103 At the same

ri, 2009). Homelessness was not abolished ő ri, 1990; Iványi, 1997; Mezei, 1999). ő With the transition to subsequent a radical market increase economy, widespread in deindustrialisation, poverty in housing the and costs and unemployment, shutting down the nearly all rapid homelessness the in workers’ increase Hungary hostels (Gy led to mass –– indeed its was prevalence estimated to be between 30,000 to 60,000 people in the 1980s (Utasi, 1987) –– but punitive measures, together with state censorship the in especially public, the to invisible it of much made academia, and press the of sleeping. case of rough The initial phase of the “post-socialist” era was characterized harassment by of informal fluctuating police intensity (depending on the season, proximitythe of time, earlier criminalising developed. was services assistance homeless measures of system elaborate an and guaranteed, were abolished, civil rights were formally The criminalisation of homelessness intensified, become codified since the systematic However, 2010. and current punitive surge has its antecedents both preceding in “socialist” the regime as well as the two to decades capitalism and following parliamentary democracy in the 1989-1990. The transition official propaganda of the “socialist” regime declared poverty to prohibited be sociological investigations of non-existent the problem. From the in 1960s onward, full the 1950s, and employment and comprehensive welfare e.g. ( provision alleviated Ringold, extreme Extensive poverty. social policies complemented 1999) were, however, indeed with punitive measures directed against those “living an idle or alcoholic lifestyle”. According to an ordinance issued in 1985, for found example, anyone homeless in public spaces was to be (Gy arrested Antecedents The following report provides a brief overview of the antecedents and of unfolding the current punitive upsurge street that homelessness led in to Hungary. It the will nation-wide be government went exceptionally far argued criminalisation in criminalising homelessness, the that, enforcement of whereas the Hungarian of the corresponding legislation has been, up to now, of limited—partially the because widespread public criticism of these punitive measures particular grassroots mobilisation in involving homeless people. general, The report concludes and in by underlining the harm that criminalising legislation causes, of regardless whether it. accompanying discourse the exclusionary through it is actually enforced, 104 � Chapter V  The criminalisation of homelessness in Hungary The criminalisationofhomelessness unfoldedthrough thefollowing foursteps: erected spontaneously the “eliminate homeless settlementsfrom green areas”. to promised also he program, election his In unusable”. Budapest make to and else everyone molest continuously to lose to stations, railwaythe the underpasses, and including public capital, spaces nation’s is not the to of allow people purpose who “the have that nothing argued mayor the the “clear to promised minister The fromspaces public beggars everyoneand inconvenienceswhereaswho public”, the Budapest. of mayor elected newly the and to approach punitive more homelessness A 2010.was manifest in in various legislative governmentannouncements by the of Minister the of the change Interior through the after systematic changes became homelessness of criminalisation The Chronology ofcriminalisationrouhslee ping these abandoned mayor plans whenmediacoverage the sparkedgrassroots homelessactivismprotests. Again, excluded. be from would zones” people “homeless-free homeless which of designation the and homelessness on tolerance” In 2009, the mayor of the 11the of mayor news. the evening2009, the In as onto off intentions backed exclusionary later his brought He protest beggars”. grassroots and a homeless the out pushing for basis “legal the ensure to promised and people) homeless by occupied spaces (public islands” “homeless of elimination the announced Budapest of district 5th the mayorof The measures. legislative by followed not was rhetoric their but politicians, various by More recently, the exclusion of homeless people from public spaces was announced which isespeciallyworrisome withrespect toharassment ofhomelesspeople. begging silent of definition their in conduct” “implied included ordinances these of the of some by forward Many put areas. these from people homeless push to –– ordinances rationales these of advocates the in manifested –– intention the with area,downtown their in begging of non-harassingforms criminalise to necessary it Kaposvár, Nagykanizsa, Pécs, Szeged and the 13 matter (no Eger,Hajduszoboszló, begging including –– authorities Yet silent local severalillegal. polite) how than other panhandling of form any made regulation this Thus, money”. for asking of purpose the with public wasin people or addresses pedestrians way” “who anyone “harassing/aggressive include to a defined broadly in latter prohibited—the already or children national to with According panhandling begging). were legislation, they not or whether of (regardless street the authorities on living people local to ramifications several however,important with begging”, 2000s, “silent criminalised mid the From practice. this legalise to attempt any without spaces) public different of prominence the and elections local provided by the Ministry of the Interior gave only one example of such other such of activity: the example“habitual residing of one homeless people” in only public spaces. gaveFurthermore, Interior the of Ministry the by provided their usage for any other activity. Notably, the official rationale for the legislation prohibiting ordinances pass to authorities local authorised and spaces, public of purposes the defined that legislation passed parliament 2010,Novemberthe In th district of Budapest announced a policy of “zero of policy a announced Budapest of district th district of Budapest –– still found The criminalisation of homelessness in Hungary  Chapter V � 105

th districts of Budapest. th the official document argued that the local authoritieswould be able to prohibit example only the again, and purposes, non-designated for spaces public of use the in public spaces. or “sleep” to “reside” was provided the In local April authority 2011, of Budapest passed an ordinance that made it belongings store to and there” residing habitually for spaces public “use to illegal used activities. such for for Euros) 178 such (or Forints activity 50,000 to up (e.g. of fine a blankets, imposed ordinance mattresses, etc.) 6 the in in as well as public Tatabánya of town spaces. the in passed later were The ordinances Similar In November 2011, the parliament passed legislation that made it a misdemeanour, misdemeanour, a it made that legislation passed parliament the 2011, November In punishable with up to 60 days of imprisonment (534 Euros) or to violate any local prohibition a on “residing in public finespaces” twice of 150,000 Forints within six months. This legislation did already the not violating extend of criminalisation sanction possible to the the increased whole significantly it but country, existing local ordinances by making repeated rough sleeping directly punishable already were ordinances local of basis the on fines that (Note imprisonment. with non-payment.) of cases in service community to or jail in sentences to convertible According to the officialrationale attached to the bill, this changewas required on the to enforce local authorities is hard as “the monetary sanction imposed by with effect deterrent sufficient have not did therefore and [sic], perpetrators usual respect to recidivism”. According to the the above sanction law, “should not be homeless”. the for assistance for means the provide not do authorities city if used for is assistance of level required the what however, anywhere, defined not was It the sanction to be applicable. In the December parliament 2011, passed a new codex of misdemeanours that made “residing in public spaces” illegal in sleeping the is punishable whole by fines country. of Making up to rough 60,000Forints (213 Euros). Aftercontraventions two (including earlier charges due of imprisonment. with up to 60 days is punishable months, sleeping rough to rough sleeping) legislation this down struck within Court Constitutional Hungary’s 2012, November In ? six as unconstitutional. However, the government rapidly for allows essentially responded that amendments constitutional by proposed its to section adding new a laws to be passed that criminalise homelessness and removes the power of the this kind of legislation. Constitutional Court to review and 8 As early the as mayor of November of Budapest 2010, announced his “Program of the from people homeless of expulsion the in consisted which Reconciliation”, Social announcements original The Budapest. of underpasses/subways prominent most 12 included extra financialresources to forprovide those 120 people whowere found by homeless service provides in these locations. These resources, were however, never delivered; instead, shelters prioritised the placement of those designated public living spaces over in other homeless the people. At that point there was no legal basis for the forceful removal of homeless people it that was revealed the Ministry from of Human was planning Resources the 2011, February underpasses. In to open institutions “which are also suitable for services the use detention, voluntarily to willing not namely were who persons homeless in of placement which the [of shelters] is also possible”. In the December first2011, homeless shelter with a protests to due likely (most though opened, was arrests short-term for room special 106 � Chapter V  The criminalisation of homelessness in Hungary nentoa hmn ihs raiain, met International Amnesty organizations, rights human international Rights Watch instance of the criminalisation of poverty is the anti-scavenging ordinance passed ordinance anti-scavenging the is poverty of criminalisation the of instance above,summarised important roughsleeping another of criminalisation the Besides The criminalisationofscavengin criminalising legislation. of enforcement aggressive widespread of lack the to contributed people homeless among mobilization grassroots and criticism public widespread the below,argued be will it as Nonetheless, policies. punitive the revocationovertof the to could lead not criticisms aforementioned the thus and electorate, the of much of support The governing party has a large majority in the parliament as well as the continuing rights expertsoftheUnitedNationstookapublicstanceagainstcriminalisation. measures, despite several requests by Hungarian organisations to do so), two human for Commissioner Employment, Social Affairs and Inclusion refused Europeanto denounce publicly the punitive the as well as Agency Rights Fundamental the both notable that whereas the European Union remained silent on the issue (in particular, (FEANTSA) has issued several press releases on the Hungarian situation. Hungarian the on releases press several issued Homeless has (FEANTSA) the with Working Organisations National of Federation European The the government’s planstoincarcerate homelesspeople. arrest and forceful removal of activists, which increased the public’s awareness about the in resulted action direct The rough. sleeping found repeatedly people homeless refused to leave until the politician revoked the draft law about the imprisonment of activists the undertaking, disobedience civil non-violent a In upsurge. punitive the of advocate leading the Kocsis, Máté parliament the of member of office the in in group, The City is for All, thirty protesters (including homeless people) staged a sit- activist grassroots the by campaign long a of opposition culmination 2011,Novemberthe as parliamentary the In legislation. criminalising of the all against voted and argued also parties MSZP) and (LMP democratic two homeless The of providers. organization umbrellaservice national the and Sant’Egidio, of Community Eötvös Loránd University), the Hungarian office of of Habitat for Humanity, criminalisation thethe work(of social and policy social of Catholic department prestigiousHungarian most the the for stages, various criticism Rights, At Civil for ParliamentaryCommissioner the by much condemned was homelessness homelessness. received of government criminalisation the the process, above the Throughout was never putintopractice. and authorities the by denied later was function this coverage) media critical and 4. 3. 2. 1. See http://www.un.org/apps/news/story.asp?NewsID=41246&Cr=Rapporteur&Cr1 See http://www.hrw.org/news/2012/04/16/hungary-revoke-law-criminalizing-homeless See their2012 countryreport onHungary. Please seewww.feantsa.org: 3 , also denounced the criminalisation of homelessness in Hungary. It is 2 n Human and 1 Leading 4

The criminalisation of homelessness in Hungary  Chapter V � 107

5 th th Unfortunately, this

6 7 district of Budapest demolished th district of Budapest in the fall of According 2010. to local legislation, district out”), and to the loud opposition to the punitive measure by th th the self-built wooden cabins of nine homeless people. The demolition was not preceded by adequate prior notice, not approved by relevant authorities, and In October 2011, the In local October authority 2011, of the 14 The opposition included a civil disobedience action in which participants of the protest invited were to street. the on containers waste from rubbish out taking by ordinance anti-scavenging the violate publicly The protest and the subsequent court case against one of the of organisers the protest a received great deal of public attention. (III. 30.) 22/2011. Local authorities are to allowed, prohibit however, “blatantly anti-social behaviour” in local ordinances and impose administrative fines in cases of in this new form. the violation. will be attempted to restored described above criminalising measures It is yet to be seen whether some of the “taking out garbage from garbage cans placed in public spaces or jointly used residents” is by punishable with a fine of upForints to50,000 (or 178 Euros). The 8 6. 7. 5. by by the 8 district of Budapest that became a public scandal, due to the fact that it was part of an aggressive anti-homeless campaign by mayor Máté Kocsis (who argued, for the residents will drive homeless people out, they do not drive that “if we example, of the 8 the Constitutional Court ordinance the repealed anti-scavenging In December 2011, in Kaposvár. The Court argued that criminalising constitutional reason scavenging of action without relevant freedom general because it restricts is unconstitutional and violates the requirement of equal treatment because against the it poorest is and most evidently vulnerable members directed of society. district was not the first to criminalise scavenging:a petition to the Constitutional ordinances local 39 identified Union Liberties Civil Hungarian the by compiled Court that contained such regulation. As early as the 2001, Parliamentary Commissioner ordinance anti-scavenging the criticised Rights Minority Ethnic and National the for in Tiszaújváros for being unconstitutional and resulting in indirect discrimination to likely more to people be poverty (who compelled extreme against were by Roma 8 the in ordinance anti-scavenging the was it Nonetheless, regulation). the violate homeless service providers, homeless activists, and a group of radical social workers. social radical of group a and activists, homeless providers, service homeless Besides the aforementioned legislative changes, the increasingly punitive governmental governmental punitive increasingly the changes, legislative aforementioned the Besides to responses also homelessness been have in demonstrated the attempts of various local authorities to demolish informal settlements of homeless people without due process nor the provision of adequate alternative accommodation. Examples from Budapest include the following: Illegal demolition of informal settlements decision did not apply automatically to other local ordinances. However, in December in However, ordinances. local other to automatically apply not did decision the parliament 2011, passed legislation removing the power of local authorities to define in contraventions their ordinances, and all such ordinances—including local repealed. and silent begging—were on scavenging prohibitions 108 � Chapter V  The criminalisation of homelessness in Hungary explicitly invoked by theauthorities inthesecases. enacted the neverwas spaces public in increasingly to residing of misdemeanour relatedThe legislation. government's criminalising directly the not are into they homelessness, fit to measures approach punitive these whereas that also Note homeless shelters andmunicipal housingprovision. reminderthe important both an of is inadequacies settlements the informal of such privacy,independence, of prevalenceterms The themselves,in permanence. of and without provide and the to quality of of the accommodation that the affected willing homeless people provide kind for or the able between over-crowded–– in shelters placement be temporary pressure–– additional discrepancyconsistent to important tend an authorities is the there accommodation cases, these of all In local authorityonpossiblesolutions. preventto able forcedthe evictions, thereand are the with negotiations ongoing again was activists homeless by mobilisation grassroots now case, this those In for displaced. accommodation find to authority local the by weeks two only givenwereworkers outreach and notice, written any given not were settlement council (which is not authorized to approve such measures), the residents of the city the of order public of committee the by made was decision corresponding In December 2011, the local authority of the 21 City isforAll––suedthelocalauthoritycompensation. the help of the Legal Defence Bureau for National and Ethnic Minorities and The arbitrary and without authorisation, and the homeless people concerned –– with was measure this that found later Rights Civil for Commissioner Parliamentary the byreport A accommodation. alternativeprovision for with accompanied not area of the 10 the of area 2012,June In aroundof settlement informal an 50 woodeda in people homeless (AJB- unacceptable is 3513/2012). settlements homeless that of again demolition once unauthorised declared such Rights Civil for Commissioner report Parliamentary corresponding the the Later,of arrested. and of hand-cuffed author were the –– including report –– this measure illegal the prevent to who non-violently Twoactivists tried of. disposed and taken were belongings their of many notice, and prior given officially not were evicted seek Moreover, those approval.not did court authority local the as illegal were elsewhere, as measures, These ul sak dmlse b te oa atoiy f h 9 the of authority local the by self- demolished their shacks and built evicted forcefully were people homeless seven 2012, March In homeless peopleconcernedandtheauthoritiesonpossiblesolutions. the between negotiations ongoing are there and plans, these of implementation the preventedcoverage media early subsequent the and mobilisation grassroots Here, illegal. action the made have would which fulfilled, not wereprocess due of requirements Again, area. green abandoned largely otherwise an in shanties the eviction of approximately thirty homeless people from their self-built wooden th district of Budapest was threatened by illegal demolition. The demolition. illegal by threatened was Budapest of district st district of Budapest was planning th itit f Budapest. of district The criminalisation of homelessness in Hungary  Chapter V � 109 district of Budapest of district th . The vast majority of theof majority vast The . 8 From From the data provided by the suggest that one of the most 9 10 district of Budapest, where the announced mayor a campaign of law enforcement th Data kindly provided by Stefánia Kapronczy. by Data kindly provided Utca és Jog [Street and Law] participatory action research project, Data 2012. was kindly provided by Udvarhelyi. Tessza Éva Anecdotal evidence also suggests that law enforcement agencies are not eager to take on the task of homeless arresting people for nothing else than their homelessness, and that that too they this believe as a matter of social policies, not of policing. issue should be mainly treated 9. 8. specifically targeting the presence no were of There homeless cases. these people handling of purpose in sole the public for opened was spaces, office andenforcement a new law Though homelessness. of criminalisation the enforce to attempts aggressive similarly other the police harassment of homeless people did those increase over this two years, increase suggest. would review as the legislative did not seem to be as radical research participatory ongoing an of results preliminary the as well as experience Everyday project on the discrimination against homeless people cases consisted of the issuance of a formal warning; people were fined in 11 cases, ranging cases, 11 in fined were people warning; formal a of issuance the of consisted cases from 5,000 Forints to 25,000 Forints (or 18 to 89 Euros). local authorities of most of the districts in Budapest, it can be calculated that, from mid May to 2011 the end of that year, at least 800 against law rough sleeping. enforcement It measures is important were to taken note that more than 600 of these the occurred 8 in 10. There There is only fragmented and indicative information available the actual about enforcement of criminalising measures. the According to the data prevalence gathered by of8 the the in ordinance anti-scavenging the Union, Liberties Civil Hungarian udapest in B harassment police and enforcement of Intensity led to documented law enforcement 184 times throughout 2011 throughout times 184 enforcement law documented to led crucial instruments of police harassment is frequent identity checks of homeless people, is frequent crucial instruments of police harassment which is not directly related to the criminalisation of rough sleeping, and the before already widespread which legislation corresponding into entered In force. this study was of around 350 homeless people in Budapest, 59 than more reported percent them of one-third and of month, a within police the by the checks identity respondents reported four identity checks. Half of the the had by respondents authorities been (47awakened mostly percent), when sleeping in a public space. In of almost the two-thirds cases (63 for identity checks, and in awaken only minority a of tiny the caseswere they percent), (4 percent) were they awakened because the authorities wanted to offer help (e.g. by warning them about the cold percent of weather). Fifty-seven the respondents thought that homeless people were treated worse than others by the police in case of identity checks. As far as the criminalisation of street homelessness, the for plans possibility of government and imprisoning sleeping rough found repeatedly are who people homeless establishing homeless shelters into which people would be brought by force, there actual the and rhetoric government between inconsistency apparent an be to seems practice of law enforcement. Besides the operational and public widespread the to due be also financialmay might this agencies, enforcement law the constraints of grassroots powerful the to particular, in and, general in measures punitive of criticism mobilisation of homeless people and their allies. 110 � Chapter V  The criminalisation of homelessness in Hungary as an issue of public order makes it seen as a threat from the outside. the from threat a as seen it makes order public of issue an as of understanding it as a problem of the community, the construction of homelessness 2010). (Misetics, develop to Instead difficult homelessness—increasingly eliminate to community and responsibility—the very preconditions of egalitarian of reforms sense necessary a as well as empathy makes it people, homeless of exclusion symbolic and discoursefrequentlycriminalisation of operates through blaming dehumanisation, the an integral partofworking toward theprovision ofrighttohousingforall. the in people homeless community of of citizens of equal worth membership and the defence of their the basic civil rights can be on insistence stubborn the Therefore, understood asaproblem tothesocietyinsteadofaproblemof thesociety. in the cold and dirt), who are to be blamed for their own homelessness. own their for blamed be to are who dirt), and cold outside the remain in to prefer reason, unknown some for that, creatures strange of kind ( choice perception of homeless people by as different from the general public (they homeless must be some remain people homeless believethat to made is public the if legitimised be only can Criminalisation extreme poverty manifest inrooflessness (Marcuse, 1988;Wacquant, 2001). prevent to failure their of because leaders political by suffered legitimacy in deficit the compensate to is criminalisation of function important (Tosi,an Indeed, policies” 2007:229). social from homelessness of question the subtracts nuisance and order public of terms in homelessness Framing policies. on haveconsequences can serious which homelessness, of construction social the in change profound “a everyone. Punitive measures and the corresponding for control of housing public spaces dignified indicate provide to policies social of inadequacies the from attention punitive –– legitimise diverts therefore order, and to public of issue an attempts as homelessness redefines measures and The –– well. accompanies as that respect discourse this in political harmful gravely is homelessness of Criminalisation again, buttomakeitunnecessary. legal sleeping rough make to not is alike advocatesworkers, rights human social and sociologists, by embracing of worthy truly goal end only However,the them. for the –– often lifesaving –– help of concerned citizens or outreach workers to reach of forcing legislation. homeless people to seek out more discriminativehidden places, where it is more difficult unconstitutional, from equalworth Furthermore, defended of the criminalisation of homelessness can have be the dangerous side-effect theprinciple must as citizens of just incarceration and police fines humiliating measures, penal arbitrary harassment, from itself. defended in be significance must crucial people of Homeless matter a is homelessness of criminalisation The Conclusion 12. 11. attitudes toward homelesspeoplesincetheonsetofcurrent anti-homelesscampaign. workers’ service ambulance the of deterioration perceptible a example, for reported, workers Outreach include homelesspeople, butisdefinedinoppositiontothem(Ámon, 2012). doesn't only not that category “citizens”—a of claims rightful and interests the to referencesfrequent revealscriminalization of issue the on discussions parliamentary the of analysis An Kawash,1998. Cf. Mitchell, 2003). This belief cultivates the the cultivates belief This 2003). Mitchell, 12 It becomes becomes It 11 As the the As The criminalisation of homelessness in Hungary  Chapter V � 111 kkel. ő tti id ő Budapest: TÁRKI, pp. 430- pp. TÁRKI, Budapest: al. et helytanulmányok. Budapest: Kossuth, p. 181-213. Budapest: Kossuth, helytanulmányok. ű l [Change and permanence – on the past twenty years of the ő ri, P. (1990): Gyorsjelentés a hajléktalanságról, Magyarországon (2009): Változás és állandóság – a hajléktalanügy elmúlt húsz ri, P. ő ő Tosi, Tosi, A. (2007): Homelessness and the Journal of Homelessness 1: 225-236 European Criminalising the Poor? Control of Public Space – Wacquant, L. (2001) The Penalisation of Neoliberalism, Poverty European Journal and on the Criminal Rise Policy and of 401–412. Research 9: 1990 [Brief report on homelessness in 1990]. Hungary, In. Társadalmi Rudolf Andorka by Edited 1990. riport 446. Gy évér issue of homelessness]. Presentation at the Hajléktalanügyi Hungary). (Balatonföldvár, konferencia országos Sík Kiadó. G. (1997): Hajléktalanok [The homeless]. Bupdaest: Iványi, 319-339. (2): 10 Culture Public Body. Homeless The (1998): S. Kawash, (1): 18 Review Socialist Homelessness. Neutralizing (1988): P. Marcuse, 69-96. Mezei, Gy. (1999): Látszólagos analógia a történelem el Ámon, Ámon, K. (2012): The criminalisation of the on discourses the and implementation and legitimation of patterns The homeless in Hungary: Unpublished manuscript. homelessness. Gy Hajléktalanok Magyarországon a 90-es években [Apparent analogy with [Apparent a 90-es években Hajléktalanok Magyarországon Belügyi 1990s]. the in Hungary in homeless The times. prehistorical the Szemle 37: 79-90. Misetics, B. (2010): The Significance of Journal of European Homelessness Exclusionary of The Hungary. Example Measures: Discourse and 4: 231-246. Mitchell, D. (2003): The Annihilation Anti-Homeless of Space by Law. and the Shrinking of Laws Landscape Rights. In. The Right to the City. The London: and York New Space. Public for Fight the and Justice Social pp. 161-194. Press, Guilford Ringold, D. (1999): Social policy in postcommunist parties and social Europe policy in In. postcommunist Europe. Left Edited by Linda J. pp. 11-46. Press, Westview Oxford, Cook et al. Boulder, Utasi, Á (1987): Hajléktalanok, [Homeless csavargók and vagrants]. In: M Peremhelyzetek. References

chapter VI Penalisation of Homelessness in Access to Social Housing and Shelters

Padraic Kenna National University of Ireland, Galway Marc Uhry Fondation Abbé Pierre Rhone-Alpes. Lyon, France Jamie Burton Doughty Street Chambers, London, UK Samara Jones FEANTSA, Brussels, Belgium Guillem Fernàndez Evangelista Associació ProHabitatge and Autonomous University of Barcelona (IGOP), Catalonia “Tell me whom you legislate for and I’ll tell you who you are” David Fernàndez and August Gil Matamala (2012) Penalisation of Homelessness in Access to Social Housing and Shelters  Chapter VI � 11 5 The penalising of poverty and homelessness can take of on these different is forms; the restriction one of access to public services report on by “Extreme and Magdalena and Poverty Human Sepúlveda, Rights” social (2011) benefits. The the United Nations Special Rapporteur, considers that in order to measures, justify these States point to the need to improve make efficient the use accuracy of of public resources, targeting, avoid to work dependency, and eliminate deter disincentives abuse of the the system. impact While of these these measures is may often disproportionate be to the valid aim concerns, they seek achieve. to Support for these measures is not based effectiveness and on economic butefficiency, strong rather on evidence discriminatory of stigmas and their as benefits social of recipients portray that media, the by perpetuated stereotypes, In addition dishonest to and lazy, the untrustworthy (Sepúlveda, personal 2011). obstacles resulting like from living not in having a poverty, fixed address, lacking communication and literacy with difficulties education, in gaps or identity of proof when seeking to comply with often complex and opaque requirements, people stigmatize that campaigns political and media of victims also are poverty in living and influence the public discourse poverty.on focuses on to disproportionately related fraud social benefits, placing tax it above For instance, political rhetoric fraud, which is a far greater burden on the One State of (Sepúlveda, the 2011). most serious forms of penalisation of homelessness is the restriction to of access social housing and shelters. Often, the of registered common years which of in can residence the include country, years criteria eligibility, used to determine residence in a specific municipality, income, credit history, health, diagnosis of certain diseases or dependencies, or having a criminal record can count against need of services like social housing and shelter. in dire people who are This chapter examines contemporary developments in relation to access to social housing and shelters across a number the of EU context States. of This a is growing criminal the (and policy criminal considered in penalisation exceptionalism of culture the of implementation within of homelessness. homeless We (and policies examine social in applied is II, how chapter in explained enemy), the the of law policies) based on the administrative status of their people needs, through and the not sanctioning on of access the in basis a criminalisation “dual of of housing and Travellers system”. Roma The in Europe is also explored, as international human rights well to relating law minimum obligations core of states. The as the relevance of Council of Europe housing . rights standards. approaches these with appears line to in policies be access correctly developing not are States yet. focussed; 116 � Chapter VI  Penalisation of Homelessness in Access to Social Housing and Shelters minority of countries with relatively extensive housing rights legislation (Pleace legislation rights housing extensive relatively with countries of minority Living shelters. the in even and housing, social to access secure accommodation to enough rarely,itself, was emergency in rough in living populations nor the allocation, housing were social for group target a not generally were rough living (Pleace behaviour criminal or nuisance of history a with history of rent arrears, households that had been previously evicted, and households a with households exclude to the known been have Belgium Netherlands, and Ireland Finland, UK, The Poland, Sweden, including countries in providers housing which to groups certain homeless people sometimes belonged. For example, the report highlights that social housing avoided housing often providers of housing forms Social other needs. on instead concentrating homelessness, of forms some prioritize not did housing social for systems allocation that out points report The main reasonssix forthis: were There people. homeless of needs housing the meets partially only European the by Homelessness” and Observatory on Homelessness shows Allocation how, in 13 Housing European countries, social housing “Social on report The population orpeopleinirregular administrative situationstoleave thecountry. poor the cause ultimately can –– explicit or inadvertent whether –– tactics These include thefollowing: administration of through itself violation manifests this a how of representexamples Some rights. often human they poverty, of management political of view of So, while policy goals may be diverse and can be justified more or less from a point or oiy oriain ewe NO, oil evcs n sca housing social and services providers. social NGOs, between coordination policy Poor and people. homeless of poverty numbers significant of housing and concentrationseffects, area negative spatial associated avoiding between tensions Perceived be “difficult”tenantsandneighbours. Attitudinal and perceptual barriers centred on a belief that homeless people would balance moving towards to marketization andsocialenterprisemodels. countries some in providers differentroles, pressuresincluding also while needs housing meet to continue to housing social on requirement The housing needsotherthanhomelessness. of providersforms systemshousing meeting byAllocation social on run focused Insufficient supplyofsocialhousing relative toallformsof housing need. locations. unhealthy to or city the of margins the to it forcingby povertyinvisible Making Preventing theentryofcertain groups tocertainareas ofacity. Prioritizing theaccessofsomegroups over others. Reducing orincreasing statisticalvariables tofulfilapoliticalmandate. financial resources. of lack to due population target the reduce to problems Restrictive of definitions Adapting resources totheneedsofcertaingroups andnotofothers. 2011).al., et people Also, et Penalisation of Homelessness in Access to Social Housing and Shelters  Chapter VI � 11 7 " (2010) in England, the number et al. (2010) et al., 2010). However, it is also clear that et al. (2007), reductions in total "homelessness decisions", of statutory homeless acceptances rose steeply in the late 1990s and early 2000s, as housing affordability deteriorated, squeezing many low-income households out reduction has been an unprecedented there of the market. Since 2003/04, however, in homeless acceptances in England, with the total the halving last by quarter 2007/08; of and 2012, around in 13,570 households and were in priority need accepted in England, an increase of as 6% In on the same homeless period in 2011. in homelessness acceptances until 2004/05, trend a sharp upward was there Wales, but this has since reversed. In Scotland, homelessness acceptances grew steadily up to 2005/06, but have since dropped back slightly; a broadly similar evident pattern in is Northern Ireland (Wilcox the homelessness legislation is by no means perfect. Critical here is the "housing 2006). As options" (DCLG, in approach England, Government Central by promoted explained by Pawson nterviews and the "Gate-keeping Interviews and Housing Options existed has –– 1977 Act Persons) (Homeless Housing the –– framework legislative A for many years in the UK. This framework ensure that accommodation sets is made available to out households that that are "eligible" for local authorities must assistance, "unintentionally homeless", and in "priority need", which are described as "statutory homeless". There homelessness has since devolution been of legislative substantial powers. The legislative original subsequently 1977 divergence incorporated Act into on was separate legislation for England, and As Wilcox Northern explained Ireland. by Wales, Scotland probably reflect the success of therenewed emphasis on homelessness prevention, such of result a as problems housing to solutions successful reflect part in may and interventions. 2011). al., For 2011). example, despite significant reductions in rough sleeping last over the decade in England, a number of barriers to the permanent street rehousing homeless remain Observatory population, European for not the least of the research the woeful lack of Moreover, appropriate 2007). move-on (Shelter, accommodation on based housing social to access unequal was there that showed Homelessness on presumptions about homelessness among social housing providers. For the example, misperception among social housing providers that all homeless people would create housing management problems, resulted in social decisions housing for this to group. This block is an attitudinal access barrier because to it is the based incorrect presumption that on all homeless people are likely to exhibit challenging needs (Pleace et al., 2011). high support and have behaviour In England, gate-keeping practices are sometimes used as "undesirable" a means homeless of penalising people and preventing While in them some parts access of England, to the housing social options system with the homeless or successful, potentially homeless interviews families –– is very –– housing. which involves other municipalities use this interview process as an excuse to accommodation. restrict access to Debate in England 118 � Chapter VI  Penalisation of Homelessness in Access to Social Housing and Shelters sca mx n oil osn” oiis ae en eeoe i sm countries some in were interventions developed policy these Germany), been and Netherlands The have Sweden, (France, policies housing” social in mix “social although that notes Homelessness” and Allocation Housing the “Social flats, report of blocks and zones housing social in poverty of concentration the to relation In and individualswhoare prevented from accessinghousing. transparent nor based on formal criteria, which leads to penalisation of certain groups neither is housing social of allocation the Furthermore,reinforces discrimination. fact There is a compelling argument that the emphasis on “social mix” in social housing in housing. to right the ensure to failed it as Charter Social RevisedEuropean the 31 of Article violate to found was 2008 in and academics, of number a by criticised been France uses a different approach when allocating social housing. France’s approach has Social MixandDiscriminationinFrance or homeless threatenedbe withhomelessness (Pawson etal.,2007).may assistance for applicant an that believe to reason have they under Housing Act 1996 Part 7, in particular their duty to duties undertake their enquiries wherewith complying are they that ensure to practices and procedures reviewingtheir be should authorities local case, this by provided reminder the of light the In mediation). family (e.g. measuresprevention homelessness of outcome the authority local delays a or wherepostpones practices:Section 184 “gate-keeping” of of the illegality Housing Act the 1996 highlighted enquiries 1122)has pending Civ was manifested. The case of Robinson v Hammersmith & Fulham (LBC 2006 EWCA legislation of misuse this which in form wasthe litigation of point the again, Once statutory homelessnessstatustakesplace(Busch-Geertsemaetal.,2008). their of consideration formal any beforepreventative avenues potential all exhaust application homelessness with certain local authorities (unlawfully) official requiring potential homeless applicants an to making to barrier options a represent housing can these interviews areas, some In 2007). (Shelter, others in gate-keeping by undermined being is England of areas some effectivein practiced preventionthe homelessness that concern genuine is There application. homelessness a make to formal need services preventthe to designed include are a that liaison landlord may or mediation givenfamily which as such options, are housing housing their on with advice assistance offering interview for authority local a approaching (Pawson case the be wouldotherwise lowerthan be regimewill options housing a under “decisions” recordedformally of number the that maybe it assessment, homelessness formal a Given that households in these circumstances might otherwise have been subject to homelessness. with threatened or homeless be may or is applicant the believethat to reason no has authority the that judgment initial an in result will homelessness options interviews involving households claiming to be homeless or threatenedhousing with necessary.Some deemed is assessment homelessness formal a whom for households of number the reducing of effect the have potentially could approach options housing a that way the is hererelevant be may that factor However,one , 2007). Under a housing options system, all households all system, options housing a Under 2007). al., et Penalisation of Homelessness in Access to Social Housing and Shelters  Chapter VI � 11 9 et al., For 2011). example, in the Collective Complaint 39/2006 In The Netherlands, homeless migrants can be barred from accessing emergency shelter. International NGOs like the challenged this penalisation have Undocumented (PICUM) Migrants and FEANTSA Platform for International Cooperation on rants in Irregular Migrants Access to Emergency Shelter for the Netherlands In reference to the allocation system for social housing, the Committee considered that although the Anti-Exclusion Act of 1998 represented an effort to system for allocating improve social the rental housing, there was clear evidence that the system ishousing social for demand the of part large a because Firstly, well. work not did still not met (only of 5-10% the poorest households were allocated social housing), and because the waiting secondly, period average for allocation continued to be too long migrant for periods waiting the particular, in and months) four and years two (around applicationthe that considered Committee The average. than longer were households of the concept of “social mix” in the 1998 Act, which is often used peopleas poor the exclude basis that decisions for discretionary to leads often housing, social refusing from access to social housing. The major guidelines the lack of any from problem and in particular, stems definition of this concept in the law, from the on based lack discrimination of forms of indirect are a There practice. clear in it implement to how on this fulfilling from migrants preventing often municipality, the in residence of length the of L-225.1 Article exist: indeed does discrimination of event the in remedy A condition. their of ground the on persons natural between distinction any outlaws Code Penal the providers housing social required 1998 July 29 of Act the Moreover, etc. gender, origin, also Act this as but allocation, an refused being for reasons the of applicants inform to can applicants it, achieve to how specifying without mix social of goal the introduced be turned down without it being possible to discern any discrimination. In practice, discrimination is often very 2011). Lyon hard Grand 2012, to (Auorif segregation social prove. reinforced France The against complaint decision on FEANTSA’s collective The past ten years have seen an intensification and increase in poverty and illiteracy areas in particularly healthcare, like services access to difficulties continued and levels, where these social problems existed. Despite direction by various public bodies and and discretionary remains housing social of allocation the ), sages des (comités experts to applicants. not available is based on informal criteria that is opaque and viewed viewed by some expert respondents as limiting the opportunities to access social housing for various vulnerable and/or poor groups of people, including homeless people (Pleace Council the (ECSR), Rights Social of Committee European the France, vs. FEANTSA of Europe body responsible for monitoring the Social implementation Charter, reached of the unanimous the decision is France that European that ruled has France ECSR The is 31). in (article rights housing violation to regards of with Charter the on pertaining six to: grounds not inadequate in housing conformity with Article 31 conditions, preventing evictions, reducing homelessness, providing social housing aimed at the most deprived, social housing allocation, and discrimination against Travellers. 120 � Chapter VI  Penalisation of Homelessness in Access to Social Housing and Shelters addressing homelessness in major cities. Under this agreement, the parties committed agreementan signed “G4”) governmentthe the as with known Hague, The and on Rotterdam,Utrecht(Amsterdam, Netherlands the of cities major four the 2006, In irregular migration. a dual goal of ensuring that irregular migrants leave its territory and deterring further protectionwith social of excludeforms irregularmigrantsfromto most policy a on 2005). Take, for example, the Netherlands, which in the last few years has embarked to likely are States exacerbate the already difficult housingMember situation of irregular migrants (Cholewinski, EU of territory the in migrants irregular of residence the with connection in assistance of provision the penalising measures EU Recent inwhich ways five identified irregular migrants are housed: and countries European six in housing mapping of a exerciseundertaken has PICUM 2005). (Cholewinski, mobility of level high by characterized a is Europe in migrants irregular of situation housing the general, 2010).(Perl, housing. social In to access denied often are backgrounds religious or ethnically unpopular house-hunters; however, in reality people from different ethnic or socially against preventdiscrimination to criteria as so objective appear The to designed are migrants. for quotas maximum introduced have and skills, language German of level “sufficient” a includes which housing social established to access have for criteria municipalities instance, For involved. stakeholders the of many for unclear legally and sensitive politically is affiliation religious different of people and minorities migrants, to housing social of allocation of social question the Austria in access to trying But in housing). Parys (Van obstacles social housing legal in serious housed face sometimes migrants undocumented are seekers procedure asylum asylum the from which rejected being (during after housing social in living still are their regularising veryasylumvulnerableseekersto Sometimes personal on due situations. and situation work they while housing social in migrants undocumented house to agree authorities local rareoccasions, some On Spain. and Italy Belgium, Netherlands, Germany,The Austria, in housing social accessing when immigrants A report by PICUM (2004) highlights the major difficulties faced by undocumented Charter andothertreaties. Irregular migrants are penalised despite holding rights under the Council of Europe’s complaint against The collectiveNetherlands before the on-going European Committee of an Social Rights. including litigation, strategic through migrants irregular of With theassistanceoffamiliesandcommunitynetworks. By NGOsworking withirregular migrants. and insomeplacesare notopen toirregular migrants). In emergency shelters (which usually provide accommodation for one night only migrants). irregular from requested often are documents practice, in contract, rental a sign to alwaysnecessary not is status migration legal a (although housing private In By homelessservicesorganisations. 04. o eape a Crsin el (2010) explains, Perl Christian as example, For 2004). al., et Penalisation of Homelessness in Access to Social Housing and Shelters  Chapter VI � 121 As Joris Sprakel (2010) As explains, On Joris in Sprakel assistance. (2010) The Netherlands government since the any late 1990s, from national migrants irregular excluded effectively have laws irregular migrants the are entitled basis to Vw2000, of some Article government 10 services such as education, legal aid and emergency medical care. As of 1 January national the including by instructed were authorities local when worsened migrant, situation the irregular 2010, any to shelter emergency provide longer no to government families with children. In the courts’ view, the access –– including to emergency shelter –– government for assistance irregular migrants would prolong their stay needlessly and Social of Committee European “seriously Europe’s of Council the undermine” regard, this In the 2010). (Sprakel, migration policy of The Netherlands brought 47/2008 Complaint Collective on decision 2009 October its released Rights the of Netherlands 2010. in February Defence by for International Children (DCI) v. In this case, the complaint addressed the situation of children not lawfully present housing to right the from practice and law by excluded are who Netherlands, The in European Social Charter). Revised (particularly and DCI article 31.2 states 31.1 that housing is a for prerequisite the of preservation human dignity and, that therefore, legislation or practice that denies housing to foreign nationals, even if they are on the should territory be unlawfully, considered contrary to The the Charter. Revised the because groundless was complaint collective the that argued government Dutch children whose rights are allegedly violated by the contested Dutch legislation and do as they Charter, scope outside of personae” the the are “ratione Revised practice not meet the conditions established in section 1 of the Annex, since they do not reside legally in the country. The Government further argued that the was unfounded complaint since law and practice in The Netherlands allow for the provision of accommodation as “exceptions” exist to the principle children that unlawfully cannot present enjoy entitlements Netherlands The to that was Rights Social of Committee European public Europe’s of Council provision. The conclusion by the had violated article 31.2 –– young and children for the state the from aid special prevention and protection and the –– 17.1.c article reduction of homelessness, and or temporarily ofpersons deprived definitively their family’s support. The argument children to shelter adequate provide must States Member that fact the on based was unlawfully present in their territory for as long as they remain in their jurisdiction. Any other solution would run counter to the respect for their human dignity and of children. situation not take due account of the particularly vulnerable would themselves to bringing homelessness to an end over a period of eight years (Kamp, (Kamp, a to period bringing of homelessness eight themselves to years an end over The 2010). first objectivewas to improve the situation of the initial target group identified as homeless, and amongst a broader group of people the secondidentified as vulnerableand to provide suitable phase aimedsupport prevent to interventions for homelessness these The Compass”. people. “City so-called In a in the presented four were methods big and objectives cities the cities, and in other Dutch interagency which for approach, assistance individualised an create to aims Compass agreements are made to meet individual needs. the The and first phaseNetherlands of thethe was strategy in cities main four the in sleepers rough 10,150 the at aimed social with tenants as registered are who people 21,800 all include will phase second assistance institutions. Such holistic and service-user centred approaches prevent homeless people, should including those with multiple and complex needs, from 2010). the net (FEANTSA, slipping through 122 � Chapter VI  Penalisation of Homelessness in Access to Social Housing and Shelters ocre cn upr tesle. h rsl i ta i te U iie lss his loses citizen EU the if that is result The themselves. support can concerned the fact that freedom of movement within the on EU is allowed only if the EU citizens based is argument This housing. own this his/her “worker”, for responsible a is as he/she lawfullymeans residing is citizen EU the if that argues government shelter according to the law,(emergency) in frompractice access excluded to shelter is not refused. areThe Netherlands citizens EU although workers, migrant lawful excludedis she fromor he (emergency) shelter. other and citizen EU of case the In homelessness, to solutions temporary) (usually finding of capable is and/or issues health mental (serious) no has person homeless a strategy. if the Thus, as in defined addressed be to group target the to belonging over,or or years 23 aged being 2000, Act Aliens the under residency lawful or citizenship Dutch having example shelter,(emergency)granted be for should person a whether determine to ordercriteria in other apply also municipalities the criterion, connection local the Besides this practice in proves 86/2012, problematic foravariety ofgroups: No. Complaint in arguments FEANTSA’syears. three to shows of According out that two of documentation period a provideover region the can within residency person of evidence a if proven Local region be shelter. emergency the can to connection to entitled deemed connection is (local) person a a before of (“regiobinding”) requirement a introduced have number substantial shelter,a (emergency) providing for responsible are 43 that the municipalities of Out homelessness. of penalisation of example clear a is point first The not compatiblewiththerelevant provisions oftheRevised Charter: provisions of relevantthe Revised the Social with Charter.compatible FEANTSAnot has is identified threepeople issues TheNetherlands and thathomeless are sheltering policy regarding practice legislation, Netherlands’ against The Complaint that claiming a Collective 86/2012) No. (Complaint filed FEANTSA 2012, July In of proof ofidentity. lack often, and, documentation of lack for groups marginalized not other and Roma have they that fact the to established alocalconnectionover due thespecifiedamountoftime. status, legal their of regardless Migrants (this speakstochoiceofresidence aswell). region different a in live to want may but connection, local have may friends), Former addicts who wish to escape their “enablers” (i.e. drug dealers and addicted registry municipal (i.e. criminalrecords, bankstatements,etc.),theGBA the isthestartingpoint. in registration of lack (Gemeentelijke Basisadministratie or GBA). the Although alternative proof is accepted to due persons, Homeless hindrance totheprogression inthehousingsituationofhomelesspeople. Due to a lack of coordination between the 43 responsible municipalities, there is a negatively inadequate, is impacting women, children, andyoung persons shelters (i.e.vulnerable persons). (emergency) of quality and availability The rights ofhomelesspersons and(un)lawfully residing migrant(s) (workers). the impacts which criteria, other on or –– criterion connection local a called –– municipality a to connection a on conditional is shelter (emergency) to Access Penalisation of Homelessness in Access to Social Housing and Shelters  Chapter VI � 123 Roma and Travellers continue to face penalisation, criminalisation and discrimination and criminalisation penalisation, face to continue Travellers and Roma across the EU, discrimination despite The important Europe. steps in to ensure discrimination, Travellers their and segregation, access Roma to evictions of rights. and exclusion Racism, expulsions residential of form experience part of the everyday they suffer is manifested in many forms. Direct cases, discrimination some indicating “no gypsies” or in the denial in accommodation advertisements in example, is and manifested, others with for footing equal an on housing rental private to access of is discrimination Indirect 2012). (Hammarberg, Roma to housing sell to even refusals Fundamental the to According housing. social to access in example, for manifested, social in live Travellers and Roma countries, European some in (2009) Agency Rights population the of proportion their to compared numbers disproportionate in housing as a whole, but the criteria for the allocation of social housing are often unclear, Roma and Travellers in Europe The European Committee on Social Rights has not yet decided on the Complaint but Collective (July The 2013), Netherlands argued in government its submissions that the complaint is not migration admissible. policy The as government defended necessary migrants to its leave on to their restrictive own accord. The government control submits that it is immigration acting in undocumented with access denying accordance migrants international to by law and motivate irregular In shelter. its submissions, the Dutch government refers to possible solutions voluntary that is one Option destitution. of case in have may migrant undocumented the return. This is not an option for all undocumented migrants. It is also a with the solution limitations. shelter Firstly, offered is a form of imprisonment, because the migrant is not free to leave the the premises. return Secondly, is it not is successful, the limited provision describes of in government the option second shelter The streets. duration: the on is migrant undocumented if discontinued, leaving the is that the undocumented turns migrant to or churches other charity organizations for it help. is However, not the charity organizations who signed the The Charter. State has obligations to assess the need for those who turn to them for help. The government cannot shift this responsibility to charity well- organizations, however rights create to intended is that instrument an is Charter the Ultimately, intentioned. for individuals and obligations for the State. or her job, The Netherlands government argues that he/she has to return to their country of origin where he/she would an have entitlement to (emergency) shelter. Besides, the Netherlands government has, by law, prohibited any government or agency government from irregular providing migrants with grants ), (verstrekkingen ) (voorzieningen provisions and social benefitsuitkeringen ). ( The Aliens Act makes assistance and legal schooling of children care, medical for emergency an exception costs. The aforementioned prohibition was introduced in system The with Netherlands the legal 1998 Benefit Entitlement Act (“Koppelingswet”) purpose withof excluding irregular the main migrants from all public services and denying their that the only believes criterion to decide access to FEANTSA entitlement to shelter. is need. (emergency) 124 � Chapter VI  Penalisation of Homelessness in Access to Social Housing and Shelters reasons were used in the former case, while in the latter the Interior Ministry alleged “Security” return”.“voluntary as described or expulsions” “disguised as denounced was what in Romania, some to from Lyons flight while charter a France, on put northern wereRomanians 250 in Lille, of outskirts the on camps Roma two from people 200 governmentevacuatedsome Hollande 2012 new August the In camps. TravellerRomaand illegal evacuate 300 aroundto government decided Sarkozy the interfering with “law and order, hygiene or anyonepublic peace against and landowners) safety”. In or August 2010,courts from permission requesting (without hours In France, the Internal Security Act of March 2003 permitted police to act within 48 community (Bernard etal.,2010). allowances, etc.) yet, paradoxically, seems to create the most problems with the local housing, tax incentives for homebuyers, low-rate mortgages, renovation grants, rent social (provisionof assistance of types traditional than authorities the on “burden” the provision of serviced sites. Looking more closely,intervention: public these places are of much less of a type different a for looking are caravans, their own mostly to Travellers,owned), right or –– sector private or social the –– (rented housing to who access includes generally housing to right the While 2009). (FRA, house a of definition the meet not does caravan, a as because such accommodation, allowances citizens chosen their housing accessing EU to barriers particular Roma face countries against some Travellers2012).in discriminated (Hammarberg, movement of freedom also to right their haveexercising provisions, these despite States, Member EU Directive”.Movement – Free “the 2004, Union April 29 Europeanof 2004/38/EC Directive the Council in inside out set currently citizens are –– EU law EU under of developed extensively movement free the on rules The from persecution (Cahnetal.,2008). resulted in an erosion of the right under international law to seek and enjoy asylum cases, some in has, sentiment anti-Romani addition, In region. OSCE the in state from outside the EU to arrive in and settle legally in an EU Member State, or another leavearriveand State Member EU one another,in wellas Romaof ability the for as exercise of the right to freedom of movement in the EU, where the Roma concerned Denial of access to key goods and services has concrete implications notably for the Roma livingonthoseterritories(Hammarberg, 2012). and granted municipal authorities special powers to forcibly evict more than 10 000 May 2007, national and regional-level officials in Milan and Rome signed such pacts 18 On settled. had they where areas the from removal for target Roma to officials empowered that Pacts” “Security adopted cities different fourteen 2009, May and 2006 November between example, Italy,for 2012).In (Hammarberg, communities Roma on raids police during documented been has structures, housing including property,Roma of destruction Large-scale settlements. Roma on raids during and Romaaresearchesbegging when bordercontrols,people during at streetor the on stops police during reported is property of seizure arbitrary Europe, of Council the of Rights Human for Commissioner indirectly the by documented As harassment. to or subject directly are that also are they addition, measures TravellersIn and 2009). Roma (FRA, against through discriminatory housing social to access their discriminatory.denyreportedly authorities Localcases, some in and, restrictive too Penalisation of Homelessness in Access to Social Housing and Shelters  Chapter VI � 125 1 International Covenant on Economic, Social and Cultural 3, Art. 2 (1). Rights U.N.T.S. (ICESCR), 19 December 1966, 993 1. But it is important to distinguish between the obligation of progressive realization of realization progressive of obligation the between distinguish to important is it But human rights and the minimum core obligations, which apply to states regardless of their economic circumstances. The minimum This minimum to endure. should have below which no person approach, threshold core obligation is a minimum We have seen different ways in which homelessness is penalised, in terms of access of terms in penalised, is homelessness which in ways different seen have We to emergency shelters and access to space for camps for travelling But communities. are there any obligations for the state to prevent such policies and practices? Economic, social and cultural rights include the right education, work and to an adequate adequate standard of living. food, All states have shelter, committed to such as the international treaties, relevant ratifying of these rights by the realisation UN Charter, the International Covenant on Economic, Social and Cultural Rights Convention International the Child, the of Rights the on Convention the (ICESCR), on the Elimination of All Forms of Racial Discrimination and the the Convention Elimination on of All Forms of Discrimination Against Women. The core of aspect these treaties is best reflected in the ICESCR in which states commit:steps, individually international and assistance especially through “toand co-operation, take economic and technical, to the maximum of with its resources, a available view to achieving progressively the full realization of the rights recognized in the present measures.” particularly the adoption of legislative including Covenant, Homelessness Minimum Core Obligations and FEANTSA’s FEANTSA’s Collective Complaint (39/2006) legislation introduced in against France (5 July France 2000) requiring 5,000 showed residents municipalities to set with up that over permanent stopping places had for the only Travellers acknowledged been government French The municipalities. of minority a in implemented the delay in implementing this scheme and estimated to use illegal sites, which exposed a deficit Travellers forced places. The ECSR said this delay of around41,800 them to the risk of and justified are eviction evictions that sure make must “States said under ECSR the of conclusions France’s 2003 Act on internal security. The carried out are in conditions the that dignity respect of concerned, the and persons that alternative accommodation is The available”. ECSR made the same conclusion two years later following a Collective Complaint by the (51/2008) European Roma conditions living poor the exposed also complaint ERRC The (ERRC). Centre Rights at the sites that had been not created: all stopping places met sanitary the required or outside or urban near created areas electrical norms transformers and some were to use. –– difficult –– if not dangerous making them roads, busy very “health “health risks” and insisted on the need accommodation for to for alternative search the displaced people. In both cases, a part of the population has been stigmatised, broken. internal laws rights violated and other their human 126 � Chapter VI  Penalisation of Homelessness in Access to Social Housing and Shelters with international human rights standards, encouraging state agencies to promote to agencies state encouraging standards, rights human international with already been) violated. Instead, the EU should adopt a more positive approach in line taking heed only when it is likely that basic rights are at serious risk of being (or have Convention of Human Rights. This represents a negative approach to human rights, European the of rights of breachavoid a to necessary if only circumstances limited homelessness assistance and welfare benefits, and permits statutory support in very As a result, the legislation excludes homeless and potentially destitute persons from rights. individual for consequences the to regard little paying migration, regulating of aims Government’s the towards weighted disproportionately is it that confirm including of migrants range to a investigation this findings from persecution. The or violence asylumseekersfleeing assistance homelessness employment, to and access benefits degrees, welfare varying to limit, laws certain These among homelessness migrants. and of poverty types to lead can UK the in policy and law immigration how explain (2009) Mckenna Sorcha and Devlin Roisin example, For raison d’être.” not its to establish such a minimum core obligation, it would be largely deprived of its discharge to failing facie, prima wayas a such in read be is, Covenantwereto the Covenant.If the under education obligations of forms basic most the of or housing, and shelter basic of care, health primary essential of foodstuffs, essential example, a State party in which any significant number of individuals is deprived of everyupon party.incumbent State is rights the levelsof essential for each Thus, of minimum least, very the at of, satisfaction the ensure to obligation core minimum a that view the of is Committee the “… sense: any make Covenantnot wouldthe essential level of enjoyment of all economic, social and cultural rights, as otherwise and Social Economic, on Committee UN Cultural Rights holds that States have “minimum basic obligations” to guarantee the an 3, no. Observation General its In nentoa at-oet srtg de nt elc ti mnmm hehl, itis inconsistent withthelegallybindingobligationsofStateparty threshold, or minimum national this a reflect “If not general. does in strategy anti-poverty poor international the as well as characteristics, such other and vulnerable groups include those excluded on the basis of race, gender, age, disability Such programs”. indeed targeted low-cost relatively of adoption and the by protected be can must society of members vulnerable “the constraints, of resource cases severe in Even approach. minimalist a involving as viewed not is principle The rights. cultural and social economic, of materialisation of process a of culmination the not and step, first a considered be should obligations minimal the But 2008). strategy,(Young,goals byareminimizing made gains maximum that implies which rights “minimalist” a reflects education, and housing health, food, to rights the of levels” essential “minimum the Recognising rights. social and economic of claims indeterminate notoriously the for content legal minimum a establish to seeks core” “minimum the of concept The (Skogly,1990). country a within groups individual distribution of socially guaranteed minimal levels of certain goods and benefits among core obligation corresponds to a level of distributive justice assessing how even is the 2. http://www.acpp.org/RBAVer1_0/archives/CESCR%20Statement%20on%20Poverty.htm 2 ”. Penalisation of Homelessness in Access to Social Housing and Shelters  Chapter VI � 127 Member states should recognise, in their law and practice, a right to the satisfaction satisfaction the to right a practice, and law their in recognise, should states Member hardship. situation of extreme in a person of any of basic material needs The right to the satisfaction of basic human material needs should contain, as a food, clothing, shelter and basic medical care. minimum, the right to enforceable be should needs material human basic of satisfaction the to right The –– every person in a situation of extreme hardship should be able to the courts. invoke be, before the authorities and, if need before directly it The of exercise this right should be open to all citizens whatever and foreigners, the latter’s position under national rules on the status of foreigners, and in the national authorities. manner determined by existence the on available information the that ensure should states member The of this right is sufficient. In the European context, Kenna explains (2010) how the Council of developed Europe a has range of normative housing rights standards. and These medical relate to assistance social for those without adequate obligations for physically and resources; mentally disabled persons, establish migrant workers, children housing and young persons; and establish rights to social, legal and economic for protection families, those who are those poor unable to and afford socially accommodation (Kenna, excluded, 2010). In Europe Commissioner homeless for 2009, Human Rights further clarified the people the actual extent Council of State and of obligations arising from its housing rights Human Rights housing is rights developing instruments. in an and indirect through oblique way The European Court of its Articles on the prevention of inhuman and degrading treatment, protection of home, family life and correspondence, fair and procedures non-discrimination. The fundamental rights and contained Directives of in the the European Treaties Union These principles identify a minimum of threshold below treatment which provision should not fall and which clearly cannot be denied to anyone for reason of their nationality or explains legal how status (Cholewinski, Kenna 2005). (2010) Padraic international housing instruments translate to obligations of to undertake immediate immediate requirement action in to relation ensuring a minimum core result: a obligation in terms of the rights concerned, without discrimination (Chapman and Russell, 2002). In terms of housing rights, the minimum core obligations a involve enjoys a guarantee that right everyone to adequate shelter and a minimum of level housing services without discrimination. Indeed, this concept has been applied to provide determinacy and justifiability to housing and other socioeconomic rights, providing minimum legal obligations, which are easily understood by 2008). courts bodies (Young, regulatory and In January 2000, the Committee of Ministers of Recommendation the Council No. of Europe R adopted (2000)3 material needs of persons in on situations of extreme hardship”, urging member state “the right into practice: principles five to put the following governments to the satisfaction of basic rights by ensuring access to homelessness services in a way that ensures destitution ensures that way a in services homelessness to access ensuring by rights 2010). place (Mckenna, in the first does not arise 128 � Chapter VI  Penalisation of Homelessness in Access to Social Housing and Shelters alternative accommodation isavailable. are and justified are evictions that carried out in conditions that respect sure the dignity of evictions,the persons make concerned, and that forced must of Party cases States In how state. explains the it of citizens as entitled are they which to amenities and services to access fromRoma excludingavoid to order in parties all action. However, they should seek, where possible, solutions that are acceptable for legal of use the or negotiation through be may This response. should proportionate a use authorities public illegally, camp Roma Where improvements. further for precondition a as settlements Roma of status legal undefined the resolve to effort and Travellers. For example, it proposes Romathat of the public conditions authorities housing should the improvingmake everyon guide detailed a provides and sites, camp and settlements Roma to apply equally should these that states on) so and to public services (water, electricity, street cleaning, sewage systems, refuse disposal, applying standards legal of establishment the permitting although which Ministers, of the Council of Europe refers to Recommendation Rec(2005)4 of the Committee of Moreover, in relation to the Roma and Travellers, the Commissioner for Human Rights protection are: and housing of field the in migrants irregular for guarantees minimum the (2005), measures according to Article 13.4 (ECSR, 2003). As noted by Ryszard Cholewinski as children of undocumented migrants, are required to be supported with temporary the European Social Charter, anyone in urgent need due to lack of resources, as well of protection the fromexcluded principle, in are,residents temporary and migrants legal 3) that and irregular While 2009). practice, (Hammarberg, refusal of case in in available be must remedies it receive must households qualifying all 2) right, period must not be excessive and pointed out that 1) housing benefit is an individual viewedbeen has nevertheless,has, ECSR The acceptable. as waitingthe that stated a long time for their housing allowances. Internationally, wait times of several years to social housing and eligibility for housing allowances. Migrants often have to wait access mortgages, ownership, on restrictions inappropriate including practice, law and both from workers migrant (2009), against discrimination Rights all Human eliminate for should States Commissioner Europe’s of Council the to According status, race orethnicitygender(Kenna, 2010). are now addressing housing rights and discrimination on grounds of migrant workers be interpreted in a way that is tantamount to the detention of irregular migrants. not should circumstances such dignity.in human assistance provisionof of The conditions with commensurate assistance housing of level minimum a afforded be nevertheless must migrants such appeal, of rights their exhausted have who irregular migrants who can be removed from the those country provision to housing long-term denying or in justified be rejectedmight states While asylum seekers rights. to right the adequate housing for the enjoyment of other civil, political, economic and social of importance the given particularly status, unauthorized grounds their the of on migrants irregular to denied be not should provision Housing Penalisation of Homelessness in Access to Social Housing and Shelters  Chapter VI � 129 This chapter had examined different examples of penalisation and criminalisation of homelessness in European countries. We have seen how social was policy, which likely created to prevent or respond an to instrument homelessness, for penalisation, can segregation also and even be deportation. There used is as a between gap international and European law, between national standards and States’ commitments to implement the right to and housing the one hand, to and national Travellers policies concerning homelessness, Roma, eliminate discrimination on irregular migrants on the other. States across Europe have made commitments to respect human rights; they should be held responsible for that policies penalise and and practices criminalise homelessness, because these violate Policies for human allocating social rights. housing or shelter space in France, England discriminate to means a as and used be not and rights human The respect must Netherlands against and exclude people who clearly have housing needs. Furthermore, we can conclude that homeless services must not be systematically used to for inconsistent compensate migration policies that lead people to situations of destitution and stress tremendous causes reality this countries many in fact, in when, homelessness to access Furthermore, population. homeless local the and staff their services, the on migration. to regulate homeless services should not be used as a means Conclusion It is important to point out that, as noted by the Commissioner for Human Rights of the Council of Europe, the arbitrary destruction of property can violate Article 8 (right to respect for private and family life and home) and Article 1 of Protocol No. 1 (protection of property) to the Furthermore, the Committee European of Ministers’ 20 Convention Guidelines when on Return Forced respect of on 2005 should states member Human that safeguards Rights. procedural on standards provides expulsion collective “the that states 3 no. guideline and return, forced to proceeding of while aliens Article No. is 4 4 prohibited”, of to the Protocol the ECHR prohibits collective expulsion of aliens. While the European Convention does not guarantee aliens the right to enter or reside in the a of removal given a country, person from a country close where of members his or her family infringe may live on his or her 2012). (Hammarberg, Convention the by guaranteed as life family for respect to right 130 � Chapter VI  Penalisation of Homelessness in Access to Social Housing and Shelters References osnu Cneec o Hmlsns. ega Peiec o the of Council oftheEuropean Union Presidency Belgian Homelessness. on Conference Consensus Contributions Experts citizenship?” and status legal irrespectivetheir of services homeless access to able be people Question should extent KeyTo what 5: Example. Ireland Northern “The (2010): S. Mckenna, (2):103-117. 2 Environment, Built The Of Law Of Journal International systems?”. housing modern to applied be rights housing P.(2010):Kenna,“Can Ending (2010): FEANTSA In Netherlands”. Homelessness: AHandbookforPolicy Makers. FEANTSA the in Relief Social Plan Strategy for National the of development “The (2010): W. Kamp, Council ofEurope Publications Hammarberg, T. (2012): Human rights of Roma and Travellers in Europe. CommDH (2009)5. housing. to right Commissioner the of Council of Europe Comissioner for Human Rights. Strasbourg. the 30 implementation June, the on of Rights Human Recommendation for (2009): T. Hammarberg, Rights Fundamental for Agency Union European report. Comparative Union FRA (2009): Housing conditions of Roma and Travellers in the European FEANTSA FEANTSA (2010): Ending Homelessness: A Handbook for Policy Makers. v. France, ComplaintNo.14/2003,Decisiononthemerits. ECSR (2003): International Federation of Human Rights Leagues (FIDH) Human RightsCommission and People with No or Limited Access to Public Funds. Northern Ireland Devlin, R. and Mckenna, S. (2009): No Home from Home. Homelessness Practice Good to (London: DCLG). DepartmentforCommunitiesandLocal Government. Guide A Prevention: Homelessness (2006): DCLG migrants tominimumsocialrights.CouncilofEurope Publishing. Cholewinski, R. Intersentia, (2005): Study on Rights. obstacles to effective access Cultural of irregular and Mortsel. Social a Building Economic, Obligations: for Core (2002): Framework S. Russell, and A. Chapman, Europe CommissionerforHumanRights. OSCE High Commissioner on National Minorities and of Europe.the Council of in Roma of Migration Recent (2008): E. Guild, and C. Cahn, December. EOH. FEANTSA 2, Volume Homelessness. of Journal European England”. and Germany in Homelessness in Reductions Explaining Prevention? Busch-Geertsema, V. and Fitzpatrick, S. (2008): “Effective Homelessness 8-11. HousingRightsWatch Travellersand Romapp of Europe. AcrossRights Housing in Belgium” Romainville,C.(2010):and N. Bernard, “Travellers’ in Housing to Right Barcelona of University (1995-2005). Observatory ontheCriminalJusticeSystem andHumanRights España en Penal Sistema del (2005): El Populismo Punitivo. Análisis de las reformas y contra-reformas Aranda, M.; Chaves, G.; Moreno, M.; Posada, JD.; Rivas, C. and Rivera. I Penalisation of Homelessness in Access to Social Housing and Shelters  Chapter VI � 131 Pawson, Pawson, H., Netto, G., Jones, C., Fancy, F., C. Wager, & Lomax, D. (2007): Evaluating Homelessness Prevention. (London: Communities Government). and Local Perl, C. (2010): “Equality in Public and responses. Homeless finding Homelessness in in and Europe: Social migration Housing Allocation”. Brussels FEANTSA. - Summer. Europe Social Housing Allocation D. N (2011): and Quilgars, Pleace, N.; Teller, and Homelessness. EOH Studies Comparative on Homelessness. Nº 1. Brussels FEANTSA Sepúlveda, “La extrema M. pobreza (2011): y los derechos humanos”. 4 August 2011 Assembly of the United Nations. A/66/265. General Shelter (2007) Rights and : Wrongs The Homelessness Safety Net 30 Shelter). On. (London: Years Skogly, S. (1990): “Human Rights reporting: the Nordic experience”, 12, p. 513 HRQ. Vol Sprakel, “The J. right (2010): to shelter for irregular migrants – a fact- based approach in the Netherlands”. Homelessness and migration in Europe: findingresponses. Homeless in Europe - Summer. FEANTSA. Brussels Van Parys, R. and Verbruggen, N. Austria, countries: European six in migrants undocumented of situation (2004): Report on the Netherlands and Spain. PICUM The housing Italy, Belgium, Germany, Madrid ensayo. Alianza miseria. la de cárceles Las (2000): L. Wacquant, Castigar de el a la gobierno los neoliberal pobres: L. (2010): Wacquant, Gedisa, pp. 385-387 and 415 inseguridad social. Barcelona: Wacquant, L. (2011): “The punitive neoliberal age”. regulation Governing poverty: of risking rights?. poverty Open Democracy in 5050 the Wilcox, S.; Fitzpatrick, S.; and Stephens, Rhodes, M.; D. Pleace, Foundation (2010): Joseph Rowntree homelessness. York: The N.; impact Alison, of N. devolution: Housing K. Young, (2008): “The minimum core and of economic and social rights: a Vol. concept in Journal search of of content”. International Yale Law, 33 N0 1, pp 113-76 132 � Chapter VI  Penalisation of Homelessness in Access to Social Housing and Shelters chapter VII Penalisation of Homelessness and Prison –– Prison and Inequality

Eoin O’Sullivan School of Social Work and Social Policy, Trinity College Dublin

Guillem Fernàndez Evangelista Associació ProHabitatge Autonomous University of Barcelona (IGOP) The tradition of the oppressed teaches us that the state of emergency in which we live is not the exception but the rule

Walter Benjamin (1940) Penalisation of homelessness and prison - Prison and Inequality  Chapter VII � 135 crime rates and and rates of incarceration incarceration of rates and strategies control crime A crucial dimension in Garland’s account of of the the transformation penal sphere is that, in seeking answers to explain the rise of prison look populations, we outside need the to sphere of the that criminal the relationship justice between rates of system. crime For and rates example, of incarceration it highlights this clearly in relation are (2007) Lappi-Seppala largely independent of one another. is clear and Norway Sweden, Finland, onwards, 1950 from where countries, Scandinavian to Denmark show similar very crime patterns, but Finland had a decline dramatic very in its imprisonment with rates, the other countries stable. remaining On the other hand, some attribute the extraordinary decline in crime in the United States from the early 1990s to the present to the massive increase points out, as north Zimring in of (2007) the American border imprisonment same period. However, over the in Canada, crime declined at a similar rate 1980 and 2000 in the United States, it tripled increased between over imprisonment rate the same period, but while the only modestly in Canada by 4%. While the relationship between independent, appears incarceration are demonstrably linked. Lappi-Seppälä observes a link between their welfare legitimacy systems, (social legitimacy shown by trust on the part of the citizens, and institutional which legitimacy, shows the trust in institutions/political parties) and incarceration rates. According to Lappi-Seppälä, in “less legitimate” societies, the The apparatus of crime control that emerged from the beginning of the twentieth century, what Garland (2001) terms “penal the welfarism”, which correction had at and and its professional rehabilitation core intervention has been of displaced by offenders consensus a that broad, offenders require but punishment through rather not than universal, correction. For Garland, reasoned these changes need to be seen as part of knowledge the social broader and economic changes ‘contemporary why to as question the poses he and late-modernity, with associated crime policies so closely resemble the anti-welfare over precisely the policies same period? His that answer is that have “[b]ecause they share grown the same up assumptions, harbour the same anxieties, deploy the same stereotypes, and utilize the same recipes for the identification risk and the a allocation in element of an blame.as functions Like control social crime benefits, welfare of system the and policy order social new a forge to attempts that ideology and regulation of system broader in the conditions of late modernity” (2001: 201). Garland provides account of a the interlocking social, compelling economic and political changes since the 1970s the prison, particularly allowed of in incarceration the the rate US, where that have to 2011, in 100,000 per prisoners 730 to 1975 in 100,000 per prisoners 110 from rose dangerous purportedly which in zone quarantine a reservation, of kind a “as function 178). in the name of public safety” (2001: segregated individuals are 136 � Chapter VII  Penalisation of homelessness and prison - Prison and Inequality the decadebetween 2007 and2009. of levels highest the to grew population However,prison particular,homicide. the in and crime, violent include EU-27 the in general in crimes most the thatThe have declined have that period. aforementioned the thecrimes during EU-27 the among in general out in increased stand trafficking drug and burglary Domestic the policeforperiod. Portugal, Italy, Slovenia, Romania and Bulgaria reporting increased crime recorded by however,betweencountries, Luxembourg,Belgium, Sweden,Denmark, with Spain, in the European Union (EU-27) dropped between 2005 and 2009. Differences exist police by recorded crimes of number the and countries EU most in systematically justice” criminal and “crime on statistics (Tavareszones these in activity levelpolice of the focus reflect or fact, may,in statistics in noted trends crime that and Europe, in crime of description complete a provide cannot it statistics that result, recognized a be must As countries. different across rates their and crimes of types different compare to problematic is it Therefore, counted. and recorded reported, is crime which in methods the in as well as crimes of definitions the in differences means There are different judicial and criminal systems in the countries of the EU-27, which a reflection ofariseincrime. the increase in the prison population responds to criminal policy decisions and is not this may be a first indicator that a “punitive shift” is taking place in Europe, because trustprompts Less greater thepopulation. fear, among which in turn increases the pressure legitimacy to punish toearn (Lappi-Seppälä, 2007). So crime against fight the in propaganda” of “acts to resort to need greater a have to seems government Source: SPACE 1-2009 hw ht rm lvl hv declined have levels crime that show 2012). Even so, Eurostat so, Even2012). al., et Penalisation of homelessness and prison - Prison and Inequality  Chapter VII � 137 27. 2009 27. - ,

PRISON POPULATION RATE Source: Eurostat Source: Source; SPACE I – 2009 SPACE Source; PRISON POPULATION RATE PER 100.000 INHABITANTS. UE 0 50 100 150 250 200 350 300 Thus, the disproportionate increase observed in the prison population is not directly directly not is population prison the in observed increase disproportionate the Thus, deal to how about decisions political to relates rather but crime, increased to related with it. 138 � Chapter VII  Penalisation of homelessness and prison - Prison and Inequality neoliberalism as an ideology, becomes increasingly embedded within transnational within embedded increasingly ideology,becomes an as neoliberalism As 250).(2012: bottom” the at paternalistic and top the at liberal state, “centaur a in wealthy,resulting the from regulation any withdrawing simultaneously while of combination a what that of argues workfarepoor “prisonfare”haveregulateintensivelythe and to provided means remaking he the brief, and In making state. neoliberal the the of terms Wacquant consequence a are Union European the across spreading their and States United the in policies these of development The precarious of wage labour,andtheshrinkingofsocialprotection”( generalization the unemployment, mass by generated disorders the surrendering to the temptation to rely on the police, the courts, and the prison to stem are governments Union, European the throughout assistance: public of recipients of tolerance,’ the relentless growth of custodial populations, the disciplinary monitoring “harassment of the homeless and immigrants in public space, night curfews and ‘zero his analysis hasfocusedonwhatishappeningintheUnitedStates,but of Much thrown.”are society market the of refuse human the which into disposal eliminate to garbage judicial aim “a as space, operating prisons public with incarceration, through of homelessness use the regulating and begging outlawing by homelessness criminalize LoicWacquantthat strategies that argues xxi-xxii) (2009: Managin povertywithrisons Organised crimes Organised Terrorism Drug offences 0,1% 14,4% 0,4 % 0,4 financial offences financial Breakdown ofsentencedprisoners(finalsentence) Economic andEconomic 4,3% 21,6% Other on 1September2009,bymainoffence Source; SPACE I–2009 Other types of of types Other theft 17,3% theft Wacquant, 2009). Homicide 9,1% Assault Battery Assault Robbery 15,8% 9,1% sexual offences sexual Rape 5,7% other typeof 1,8% Penalisation of homelessness and prison - Prison and Inequality  Chapter VII � 139 on the basis basis on the of –

%Other Staff vocational for workshops and responsible %Staff trainning %Staff responsiblefor education activities the for assessment and responsible %Staff psychologist Medical% staff % Custodial staff institutions penal of %Executives

UK: Northern Ireland Northern UK:

UK: England & Wales & England UK: Sweden

1 Spain

Slovenia

Slovaquia

Romania

Portugal

Poland

Netherlands Malta I – 2009 SPACE

time equivalents (percentages)

‐ Luxembourg Lithuania

Full

Latvia

Italy

Ireland

Hungary Germany

time Staff working INSIDE Penal Institutions on 1st September 2009 working 2009 September InstitutionsStaff on 1st Penal INSIDE time

‐

France

Finland

Estonia

Denmark

time and Part Republic Czech

‐ Cyprus

Full

Bulgaria Belgium 0 The total percentage of staff working inside penal institutions is higher than 100% in: IRELAND, ITALY, The in: of total IRELAND, inside staff percentage ITALY, penal working institutions is higher than 100% Some of and these MALTA. inconsistencies have been explained by the national correspondents of the 2011. 22 March I – 2009. Strasbourg, Statistics – SPACE Annual Penal Council of Europe 40 20 80 60 100 140 120 Prisons are not a good place to live. There is overcrowding in jails in many countries many in jails in overcrowding is There live. to place good a not are Prisons of the EU-27, for example in France, Belgium and Slovenia, and in some countries and 153 to up of rates with chronic, and structural is problem the Italy, or Spain like respectively. places, per 100 148 prisoners 1. The assumption that prisons the of 50% than more are countries European of majority vast the in when a questioned, space much for a with tasks, guarding rehabilitation and surveillance prison to and assigned prisons in reform workforce can be smaller percentage is assigned to providing medical, psychological or educational or support. rehabilitation Prisons are not instruments of reintegration Prisons are not As noted by Fergus McNeill and Richard Sparks (2009), the impact of crime is always unequal, falling on disproportionately the of shoulders the and poorest most vulnerable sectors of the population (ICHRP, 2010). Therefore, the vast majority people in of the EU-27 have been imprisoned imprisoned for crimes against property (theft, robbery) poverty. to linked are origins whose crimes other and trafficking) (drug health public and institutions such as the International Monetary Fund and transmitted via a series of institutions such as the International Monetary Fund and transmitted influential thinkevident the tanks, across the is penalisation increasingly of poverty state penal neoliberal this of emergence The Union. European the of States Member poor. the governing for mechanism the as state welfare the displacing increasingly is 140 � Chapter VII  Penalisation of homelessness and prison - Prison and Inequality prisoner deathsforevery 10,000 prisoners. 62.9 were there while 10,000inhabitants per people 0.98 was 2008 in population general the of rate mortality the dramatic: more even are numbers the Portugal In the than overallhigher rate forthegeneral population(0.99per10,000times inhabitantsthatsameyear). seven was prisoners, 10,000 per 7.3 with rates with lowest countries the the of one Sweden, in rate mortality prison the 2008, In outside. Mortality and suicide rates in EU-27 are substantially higher inside prison walls than 100 120 140 160 180 10,0 20,0 30,0 40,0 50,0 60,0 70,0 20 40 60 80 0,0 0 MORTALITY RATE PER 10.000 PRISONERS. EU PRISONERS. MORTALITY 10.000 PER RATE PRISON DENSITY PER 100 PLACES. EU27. 2009 EU27. PLACES. 100 PER DENSITY PRISON Source: SPACE I–2009 Source: SPACE I–2009 Prison density Mortality rate rate Mortality - 27.2008 Penalisation of homelessness and prison - Prison and Inequality  Chapter VII � 141 27.2008 - Suicide rate Source: SPACE I – 2009 SPACE Source: SUICIDE RATE PER 10.000 EU PER 10.000 PRISONERS. RATE SUICIDE 0,0 5,0 10,0 15,0 25,0 20,0 As noted above, it has been argued that prisons have increasingly abandoned any pretence of providing rehabilitation and support, often infused with hue a (Simon, racist of the numbers poor, increasing and warehouse instead operate simply to 2012). Neoliberalism is, in many cases, the preferred explanation for the increase in the numbers of people who are incarcerated and their characteristics, as prison is viewed as a mechanism for managing the insecurity advanced generated marginality through the or systematic the dismantling social of the welfare state a and veneration of markets. 246-247) Furthermore, (2012: Wacquant has argued that “penalisation takes many forms and is not the same reducible time noting to that levels incarceration”, of incarceration while have risen; that at many European societies utilise the police more than prison to curb what social he disorder, refers to as the front end of the penal chain rather than the backend; and that European societies simultaneously have and contradictorily expanded police intervention and penal the of extension the limited and stimulated “both has that intervention welfare mesh”. It is also substantially of are over-represented note that migrants/foreigners states member continental and southern the in particularly Europe, of prisons the in 2012). as shown in table 2 (see Barker, Migration Penalisation, Criminalisation and In 2008, statistics showed In 1,372 2008, prison statistics deaths showed in the EU-27, 25.5% of which were suicides. There 1.02 were deaths by suicide inhabitants per in 10,000 the EU-27 in Slovenia, prisoners. 10,000 6.9 suicides for every was 2008, while in prison the rate well were (11.3) Finland and (14.5) Denmark (12.9), Lithuania or 10,000, per 22.8 at in 2008. this average above 142 � Chapter VII  Penalisation of homelessness and prison - Prison and Inequality from the perspective of those who cannot claim full membership in the EU but EU the in membership full claim cannot who those of perspective the from This overrepresentation had led De Giorgi (2010: 156) to claim that, “when observed Average Ireland United Kingdom Average Denmark Finland Sweden Norway Average Luxembourg Germany Netherlands Belgium France Austria Average Italy Greece Spain Portugal Average Slovenia Hungary Slovak Republic Poland Czech Republic Lithuania Latvia Estonia Foreign PrisonersasaProportion of thetotalPrisonPopulation Source: World PrisonBriefwww.prisons.org Table 2: 11 13.6 7.8 24 21.7 13.3 27.6 32.5 38 68.7 26.7 26.2 41.1 17.8 46.4 37 36.2 57.1 34.2 20 8.5 11.7 3.4 1.8 0.7 7.2 1.3 1.3 40.3 Penalisation of homelessness and prison - Prison and Inequality  Chapter VII � 143 For For instance, in Spanish legislation, Héctor Silveira (from the Observatory on the Penal System and Human Rights of the University of Barcelona) explains that detention is a Detention Centres for Foreigners have become a common instrument in State policies State in instrument common a become have Foreigners for Centres Detention aimed at foreigners. Consequently, CIEs (Detention Centres for been Foreigners) included have in the “special special This or migrants. administrative of criminal repression and law” control that of instruments legislators provide have to established administrative sub-system sets sanctions that are essentially equivalent to sentences, prison thus undermining the fundamental rights and liberties of persons. For instance, regarding internment, European for legislation –– clearly order acknowledges that administrative the an through restricted be can freedom to right fundamental judicial or administrative Directive, Return the of 15.2 section to According migrants. are migrants of thousands year, Every decisions. make to empowered are authorities subject to deportation the orders in from European countries, ranging but reasons, many of several those for orders are out carried not are orders The implemented. not to failure the to origin of country migrant’s the with agreement readmission a of lack the all implement to funding sufficient of lack the to origin, of country her determine deportations (although in recent years the European Union has increased funding allocated to deportations or people who return released be immediately must interned, be “voluntarily”). might who orders, deportation to Migrants subject who are if the Administration knows that it will not be able to implement the deportation 2011). a judge (Silveira, period as determined by the end of the internment before In June 2008, the known European Parliament as Directive approved 2008/115/CE, human of regression of process the consolidates directive This directive”. “Return the rights that is taking place in the European Union. During the 1980s, “Alien’s laws” included norms internment regulating and deportation, 2001/40/ but after Directive CE this legislation has become a European policy focused on illegal migration and on the expulsion of migrants. Since undermining the of rights approval and of the Directive exclusion 2001/40/CE, and the criminalisation have of foreign become migrants standard throughout deportation orders were issued across Europe, Europe 164,000 of which resulted in forced (Silveira, 2011). In deportations 2004, (EMN, 2008). Administrative 650,000 measures of control and repression illegal of turned immigration have the European countries into “expelling States”, that are machines bent on internment is, and foreigners administrative expulsion, where treated as “lesser persons” and, in the case of irregular immigrants (undocumented 2009). (Silveira, as “non-persons” even or “without papers”), gners Centres for Forei Detention type of prison as an alternative The Spanish case only some form of subordinate inclusion in its flexible labour markets, the picture of European societies as strongholds of penal tolerance and moderation criminalisation”. becomes of selective for a reality room leaving blurred, increasingly 144 � Chapter VII  Penalisation of homelessness and prison - Prison and Inequality for three or more months. People are not detained because they have committed crimes crimes committed have they because detained not are People months. more or three for failure to obtain an extension of their visa, the lack of a visa, or if their visa administrative has been expired an or permits. People by can be prosecuted under these targeted administrative procedures because of foreigners their magistrate, deportation procedure, basically because examiningthey are living in Spain the without proper the documents and office by prosecutor’s public authorisation the by the report of a Ministry after the receive, by centres managed These Interior. directly are foreigners for centres detention Spain, In Foreigners (CIEs)inSpain The dramaticsituationofDetentionCentres for as aconsequenceofbeingconsidered non-persons by thelaw. confirming their exclusion from social resources and their increased risk of being expelled thus people, “roofless” among people immigrant of number increasing an is there that differentconcluded proportions.in Therefore,be although could Polishcities, it both in However,2008). al., et largestthe groups by werenationality Romanian, Moroccan and foreigners accounted for 53% of the total in Madrid and for 62.2% in Barcelona (Cabrera threethan less years.for roofless Spain of in count been people, night-time 2008 the In and 4.6% from Asia. According to the same survey, 59.4% of homeless foreigners have America fromSouth 14% fromEU25), fromEurope(20.8% 37.5% fromAfrica, come this people homeless for survey,services INE 2005 the foreigners in 43.6% homeless the of Of 62.7%. to grewsurveypercentage 2008 the in while total, the of accounting 58% immigrants, for was how assisted shows frequently people most homeless was that for group services population of the survey 2003 The Census. 2005 the in population total the of 8.46% only for accounted population foreign the while origin, by theSpanishNationalOfficeforStatistics,48.2%ofhomelesspeople were offoreign conducted SurveyPeople Homeless 2005 the in that note to important Moreover,is it and 257,699peoplewere deported(Silveira, 2011). average of 54,875 persons. In four years, 58,466 of these people were put into detention; the Over 2000). Lago, course (Dal of eight years in Spain, 439,000 foreign her” individuals were arrested, with an or annual him ejecting and non-existence, her sanctioning “‘legally’ extra-legality,thus of situation the of out her or him take to except foreigner the for care to ceases and sphere its from her or him expels law the when non-person a becomes Lago, Dal of words the foreigner,in foreigner.The deportable potentially a is she or he because rights to entitled not is individual “non-person”:the a treatedas is and enters into a situation of “administrative extralegality”. This is how a “lesser person” help overcome this situation of illegality. He or she is legally excluded from the legislation The individual is banned from initiating those procedures that are specifically designed to proceduresundertake administrationbyto regulatedthe by laws migrants(“aliens”). on allowed be not will she order,or deportation he judicial or administrative is an to order,subject or deportation an to lead could that procedure infringement an to subject is foreigner a when example, for So, future. the in problems serious of source the be will fact this indeed, order; deportation an to subject be to ceases she or he that detention should end. Nonetheless, this does not imply that once a person has been released from soon as it is discovered that it is impossible to deport someone, as his/her that, term of means detention This deportation. the of execution the at aimed measure precautionary Penalisation of homelessness and prison - Prison and Inequality  Chapter VII � 145 4 pro bono lawyer Those reports basically reports Those 5 In 2008, a European Commission 3 According to Organic 4/2000, Law the aim of internment is 2 Annual reports by the Spanish ombudsman (Defensor del Pueblo) from years 2007, 2008, and 2009 been published yet); has not report (the 2010 The report “Voces desde The y report contra “Voces los Centros de Internamiento de published Extranjeros” in October 2009 and jointly prepared by the (Madrid), CIE Aluche following the in situation civil the analyses It society Madrid. Mundo del organisations: Médicos and Madrid, Ferrocarril Clandestino, Racismo SOS the biggest in Spain. A report prepared by a by A civil prepared report society the organisatio, Comisión Española de (CEAR), al Ayuda in Refugiado the Seekers Asylum Vulnerable of Detention Administrative the on Report Society Civil European the of framework and Illegally Staying Third-Country Nationals, DEVAS), Decemberstarted in published by study, This the Commission. European the Jesuit of (ERF) Fund refugee Refugee European Services the by funding in 2008 with situation the analyses España”, en extranjeros para internamiento de centros los de ”Situación headed and 2009 and Capuchinos (Malaga). (Valencia), CIEs: Aluche (Madrid), Zapadores of the nine Spanish in three The internment of foreign people in CIEs is regulated by sections 62, 62 4/2000 January bis, of on 11 rights and and freedoms 63 of aliens of which in 2004, December Spain Organic 30 and Law of their 2393/2004 social Decree integration (from here, Royal the of 155 to 153 sections 4/2000”); Law “Organic lists which 1999, February 22 of Order Ministerial the in and 4/2000; Law Organic of regulations the lists for detaining foreigners. and procedures regulations Extension to 60 days was introduced by Organic Law 2/2009 of reforming December, Organic 11 Law establishments “public of aliens in Spain and their social integration. January on rights and freedoms are CIEs 4/2000 of 11 that establishes which 4/2000 Law Organic of bis 62 Section under Granted of a non-penitentiary nature” – – – focus on the conditions torture, of alleged and protection; legal effective and procedures regarding irregularities the facilities; access to health and social services; to prevent the failure to appear of the accused during the handling of her procedures of expulsion. imprisonment Consequently, is meant as “prevention” and is implemented in the framework of an administrative procedure. A foreign individual can be interned in a for centre a maximum which of is 60 a extension days, 20-day on of the original wording Organic Law 4/2000, which respects the limit described in section 16.4 of the European Convention on Extradition of 12 December 1957. 2. 3. 4. 5. Nevertheless, Nevertheless, as noted by Cristina de la Serna and Carlos Villán Durán, members of the Spanish Society for the International Human Rights Law (AEDIDH), several CIEs. Spanish in detected irregularities the denounce reports under Spanish national law. will be provided if will needed) be and provided to communicate beyond with privately her/him, even the schedule established by the centre, in case of emergency; thethey if free (for Castilian speak or understand not do can they if interpreter an of assistance receive the internee lacks the necessary and economic the resources) right to contact NGOs and agencies. advocacy immigrant national, international and non-governmental Foreigners who are interned have some rights for including life,the following: respect interned have who are Foreigners or physical to or mistreatment to subject be cannot they integrity; physical and health receive to right the have they preserved; be shall privacy and dignity their abuse; verbal detention the at workers social by assisted be to and care, medical and health adequate centre; they the have right to legal receive assistance by a (a lawyer directive (Directive 2008/115/CEE of directive (Directive 16 2008/115/CEE December 2008) –– known as the do“Directive who ofpeople foreign intern to State allows and law Spanish into transposed was shame”, not have appropriate documents for six months, with an option to extend this sentence total of eighteen months. months, for a possible more for twelve 146 � Chapter VII  Penalisation of homelessness and prison - Prison and Inequality that inspires international human rights law as a whole. The same argument wassame put The whole. a lawas rights human inspiresinternational that absolutely disproportionate, and also violates the general principle of non-discrimination Rights. As compared to the State’s (legitimate) aim a to regulate Human on Conventionmigration,European is the of the 5 section in certainty,measureestablished legal as of CIEs is in principle the and papersfreedom to right their without violates and policy foreignerslegislative discriminatory of internment widespread the Therefore, other right toaneffective remedy of (Sernaetal.,2011). violation the of the and physicalintegrity proofand moral to right the as such are rights, human inalienable also problems These assistance. medical to attorneyState’s lawyersthe office, judge, a it be justice, or relatives; or even access frequent mistreatment and abuse; difficulties and barriers for the internees to access on “foreigners”. Reports on all of the detention centres indicate inhuman conditions; point out that Spain’s systematic internment of foreigners is not in line with the law NGOs and ProsecutorGeneral State the Ombudsman, the Severalincluding critics, hazard profile. social a have few very and poverty with associated usually are CIE the in records, criminal with while people the restwere (240), hadn’t these previous of criminal records. 88 The criminal Only records of CIE. people the in immigrants 328 month, each of which just over half are expelled. In 2012,CIE Centro Pueblos Unidos visited the enter persons foreign 1,000 approximately that report, annual 2012 the in explained Unidos, Pueblos Centro from (2012),2011). Manzanedo Cristina of out and unjustified as defined be only (Serna can proportion expulsion for figure deprived people 7,655 of from freedom their movement of qualifying not but expelled. Taking into account that detention is aimed at guaranteeing expulsion, the actually eventually,not frombut, movement of deprived freedom the aliens to right of fundamental their group the to belonged have would immigrants irregular 7,655 operation, mathematical basic a to according 2009, in that, noted be should expelled were which of 8,935 CIEs, 2010).it (FGE, report, providedcountry the bydata the from trust weTherefore, in if held persons foreign 16,590 were Spain in there 2009 in source, this to According 2009). 2010from data his (with in report annual Estado) del General (Fiscal Prosecutor General State are the CIEs by in provided interned people foreign of number the about data available only The crying, while10% report having considered suicide”(Pérez, 2009). they attribute to a poor diet”, and “about 75%, at some point, feel sad and feel like which discomfort, mental or physical or hunger weakness, or loss weight “report Valenciaand Malaga Madrid, in CIEs the from internees interviewed of 30% about needs, such as those with withdrawal symptoms or psychiatric conditions. special with Moreover,internees for Refugiadoattention medical of lack al the about concerned Ayuda is (CEAR) de Española Comisión the hand, other the On areas. leisure of lack and areas; common in surveillancecamera of lack dormitory); per internees the hygiene conditions and cleaning of the premises; overcrowding (from six to eight segregation by gender which prevents families from staying together; deficiencies in toilets; and walls) than rather railings/bars, by (separated dormitories in internees annual last his in report, the instance, Ombudsman drew Forattention to the staff. following: the lack security of privacy byafforded abuses other and mistreatment et al., et Penalisation of homelessness and prison - Prison and Inequality  Chapter VII � 147 et

50) and at routine police checks, homeless migrants migrants homeless checks, police routine at and €50) In fact, the report by the Special Rapporteur emphasises the effects The Special Rapporteur proposed some measures as alternatives to 6 Report of the Special Rapporteur on the human rights of migrants, doc. A/65/222, 3 August 2010. doc. A/65/222, 3 August 2010. on the human rights of migrants, of the Special Rapporteur Report 6. forward forward by the United Nations liberty to Human right their of migrants deprive Rights not should “States Migrants: of Rights Council Human Special Rapporteur on the because of their migratory status. […] States should to consider and immigration use detention alternatives in accordance less with other if proportionate or necessary considered be not should international Detention standards. law and human rights considered been not have objective legitimate same the achieve to measures restrictive and assessed”. Homeless people are at increased risk for incarceration and, conversely, release from from release conversely, and, incarceration for risk increased at are people Homeless homelessness of episode an to vulnerable particularly person a leaves prison or jail (Homeless Link, Social 2010; Exclusion Unit, 2002, Seymour, 2006; Metraux Using housing to break the cycle In June 2011, the former Danish government established a new policy on deportation deportation on policy new a established government Danish former the 2011, June In and new guidelines put were into practice. As a result, homeless migrants who are EU citizens cannot be deported simply because they are poor or homeless –– that is, lacking the means for subsistence. The means of subsistence is determined (around to day per DKK 350 be Street: From the Street to Jail - From Jail to the In Denmark, an NGO called Projekt UDENFOR has witnessed cases of the deportation deportation the of cases witnessed has UDENFOR Projekt called NGO an Denmark, In Fehler, (Ohrt behaviours certain of because Copenhagen from migrants homeless of and put in detention arrested were 69 homeless migrants In December 2010, 2012). for staying in overnight a private low-threshold shelter in Copenhagen; many were later deported. Their arrest and subsequent detention was carried out because they and homeless. foreigners “guilty” of being were who could not demonstrate that they have this were much citizens EU could, 278 money, prior to the mid-2011, and 2009 Between deported. be practice, in change deported from Denmark under this policy. The “Report on Homeless Migrants in Copenhagen estimates 2012” that an absolute minimum of 200 EU migrants each day and 500 each year live as homeless people in Copenhagen. About one-fifth of homeless migrants”. as “particularly vulnerable describe what we these are of the punishment of migration on the protection and the exercise of human rights, not should that groups on policies these of consequences negative the underlines and be assumed to be irregular migrants, such as victims of trafficking in human beings, asylum seekers, and children. This report also provides examples on good practices, such as the adoption of an approach based on the human right to migration, and a on penalties. not based migration management of irregular internment, such as a registration system for irregular migrants; guaranteeing presence in their court through monitoring systems; the deposit of a financial guarantee; or an obligation to stay at a accommodation. designated address, an open centre or other special 148 � Chapter VII  Penalisation of homelessness and prison - Prison and Inequality (2009a) includesdifferent studies inEnglandevidencing thefollowing: et al., 2010). For instance, the Policy Briefing on Criminal Justice from Homeless Link generate(Busch-Geertsema arresthence people higher ratesand homeless amongst result in homeless people engaging in “strategies of survival”, which are often illegal may homelessness of condition the regulation, state by homelessness of status the of criminalization to addition In legislators. of their actions the through criminogenic as of cause a is defined disposition itself, in is, homelessness this of condition Rather,objective homelessness. the that and disposition criminal a have people homeless incarcerationthat ratesand arrest into read2010) cannot one that us tell fromresearchlessons (Busch-Geertsema the and statistics, population prison It has been shown that homeless people are overrepresented in both arrest rates and their likelihoodofreoffending (Hickey, 2002). and exacerbated their problems of homelessness and, in turn, had an influence on to contributed these and with, contend to problems health mental and addiction led to a loss of accommodation. In addition, both groups had drug and/or alcohol prison in time their and relationships their of break-up a to led imprisoned were they which for offences the of nature the because crucially most homelessness, homeless. being of difficulties and others,For it behavior to criminal led was that lifting); and their development of addictions to cope with the isolation, insecurity and vagrancy); the adoption of criminal behavior for street survival (such as shop- of certain behaviors such as public order offences (like being drunk and disorderly criminalisation behaviorthroughthe offending their to contributed homelessness prison from release between re-offendingand cyclecrime a behavior.homelessness, entering of and and For some, crime, a of committal the and homelessness between relationships complex of variety number a a and homelessness are into therepathways of that concludes that study small-scale a conducted (2002) (Busch-Geertsema ties spousal or family of turn, breaking in the and evictions but of precursor the be processes, can incarceration of homelessness periods long in factors causal key are disintegration, family and eviction with together incarceration,of from release since consequence incarceration, and/or cause a as seen be can homelessness Thus, 2007). al., Finding oneselfinasituationofhomelessness increases therisk ofreoffending. The riskofhomelessnessincreases afterhaving beeninprison: l l l l l l l l l l the factormostlikely tomakethemre-offend (Prince’s Trust etal.,2008). Youngof 35% wasaccommodation of lack a felt 25 Offendersto 16 aged as thosewithstableaccommodation (ODPM/HomeOffice,2005). Ex-prisonersarereleasereoffendwho upon to homeless arelikely as twice 2008). (Shapps, 2005/06 in go to nowhere with released were prisoners 12,000 leavers prison are project homelessness average(Homeless Link,2009b). an in clients of 18% al., 2005). (Niven live to nowhere have will prison from released people of 30% 21) Fr xml, Hickey example, For 2010). al., et et al., et et Penalisation of homelessness and prison - Prison and Inequality  Chapter VII � 149 51% 51% of prisoners had housing problems prior to Office, 2003). imprisonment (Home 5% of prisoners were sleeping rough before et al., 2005). (Niven they were sent to prison The Revolving Doors Agency found that 49% of prisoners with mental health problems had no fixed address on leaving prison Doors (Revolving 2002). Agency, l l l l l l Many people undergo cycles of homelessness and imprisonment: imprisonment: and of homelessness cycles people undergo Many likely to be homeless. often more are with complex needs Prison leavers In recent years, many policy-makers and service providers in EU member states have have states member EU in providers service and policy-makers many years, recent In in incorporated been has First Housing concepts. First Housing in interested become In addition to human reasons, there are also economic reasons justifying the centrality centrality the justifying reasons economic also are there reasons, human to addition In studies Numerous 2011). (Pleace, people homeless with interventions in housing of in different countries show that providing emergency supports such as homeless shelters is more costly than providing the supports to permanent assist or regular homeless housing. In people Canada, in the IBI Group, a multi-disciplinary firm for estimates urban that development, homelessness $1.4 costs Canadian taxpayers billion (CAD) each year and concludes that financialreasons alone areto sufficient necessitate transition to a homelessness prevention model (IBI Group, of 2003). Prison and service jail are among delivery the most expensive settings to serve costs daily median calculated study nine-city one USA: in homeless are who people for prison and model First jail Housing US the at $59.43 Moreover, 2004). and Group, Lewin $70.00 (The housing respectively, compared supportive with $30.48 for emphasizes placement of homeless individuals (Tsemberis in housed permanent them housing, keep where and they them stabilize to necessary services to access have et al., 2004). Consequently, Housing First users also make less use of emergency shelters, less use of emergency medical services, and are less likely to get arrested than when they were homeless, all of which produce savings for the US Taxpayer 2010). (Culhane, 2008; Tsemberis, Therefore, we can see the centrality of housing as a key factor in reducing homelessness reducing in factor key a as housing of centrality the see can we Therefore, people homeless 7,000 are there that indicates Cabrera Spain, In rates. re-offending and nowhere have they say who but roof), prison (the roof a have currently who prison, in to live when they get out. It is essential to ensure their right to housing in order to their ensure quality them of when released reoffending are from life they and prevent In England, a study from by prison the 2011). (Cabrera, Social Exclusion Unit (2002) suggested several key factors which can have a huge prisoners re-offending, impact one of on which is the housing. Evidence likelihood shows that of having stability the stable provide can it as 20% by re-offending of risk the reduces accommodation necessary to enable individuals to address their a offending range behavior of and other to to documented been services has housing supportive access such York, New In as 2011). (Crisis, employment community mental to up health by rates services incarceration jail reducing and drastically, to involvement justice gain criminal reduce up to 57% (Culhane et al., 2002). by rates 30% and prison incarceration 150 � Chapter VII  Penalisation of homelessness and prison - Prison and Inequality a reflex response to crime. Third, social policies and criminal justice policies are justice andcriminal policies social Third, crime. to response reflex a arepopulations resultratherrangeprison decisions, the a Rising political of than of another.one of independent are crime of rates and incarceration of rates Second, examined. are populations penal comparative when feature dominant the remains convergence, than ratherDivergence, upwarddirection. an in incarceration driving neo-liberalism, or globalisation it be logic, inevitable no is there that demonstrate variations in both the growth and scale of incarceration over the past 30 years or so A number of observations can be drawn from the analysis above. First, the consistent Conclusions rather thanexclusionary, responses tohomelessness andmarginality. type First approaches to ending Housing homelessness clearly demonstrate of the viability of cost-effectiveness inclusionary, and efficacy the on evidence robust The reduce long-termhomelessnessbecause,asKaakinen (2012) says: that involved extensive use of a CHF service model in the context of their strategy to buildings have to be built or not. But, Finland, for instance, decided on an approach vary they as separately, models these considerably from of one country each to another and of depend, for cost example, on whether economic new the evaluate to hard is It housing. scattered independent, in needs support complex most the with even persons homeless house to possible is it that (2013:7)concluded Busch- Geertsema cities, Europe of number a in projects First Housing of review recent a In France. Pleace(2012) differentiates three basicHousingFirst approaches inEurope: homelessness strategies in Denmark, Finland, Portugal,The Netherlands, Ireland, and they fearisolationandloneliness inscattered housing. CHF,prefer people because homeless Many choice: customer of question a is It This housingunithas22independentflatsand5support workers. care. health special and care institutional of use decreased the fromwere gained residents in the unit in question amounted to 220 14 to and equates, This homelessness. during service-use comparedto social careservices health of use the halves support intensified with housing that shows unit It is a question of economy: A survey carried out in a Tampere supported housing citizens rather thanasclientsorpatients. It is a question of ethics: Housing First treats formerly homeless persons as normal approach, oftenfocusingonpeoplewithlower supportneeds. brokering management/service case housing; scattered in living people homeless potentially and formerly to support mobile Low-intensity Light”: First “Housing but self-contained and with permanent support, contract, using harm reduction approach. on-site with housing Congregated (CHF)”: First Housing “Communal is PHF closely. model American targeted onlyatchronically homelesspeople. Following (PHF)”: First Housing “Pathways 0 ers f aig pr eietya. h ttl nul aig fr 15 for savings annual total The resident/year. per savings of euros 000 000 euros. The greatest savings Penalisation of homelessness and prison - Prison and Inequality  Chapter VII � 151 Finally, Finally, we can say that there is evidence to demonstrate how access to housing helps to break the institutional circle, guaranteeing human rights and saving public expenditure. The Spanish case shows how people living a normal life can suddenly be caught up in administrative procedures of As noted Cristina by and Manzanedo arrest, deportation the 2011). from country detention (Silveira, in internment centres, and it Daniel seems Izuzquiza that, (2011), regarding concerns over the internment of foreigners, the Spanish government uses this policy as an effective an even not instrument is approach this that demonstrate data empirical of Nevertheless, control. The control. social of means a all, above is, but flows, migration irregular of control irregular over control tight exerts it that citizens Spanish show to seeks irregular government simultaneously, And, control. and order peace, of message a is it immigrants: and criminalisation. harassment persecution, a message of fear, receive immigrants It could be concluded that part of the institutions and Rule been of have the transformed into Law instruments for the administration control, management, of the and repression of poverty, homelessness and immigration, especially immigration labelled as “irregular”. “Regular” immigrants, who comply the entry and residence regulations, are temporally measures granted precautionary certain regulations, order civil, public to social subject are and immigrants political “irregular” rights, while and expulsions. internment, fines detention-arrests, and penalties, such as both means of managing marginal populations. Social policies, by and large, aim to and large, populations. Social both policies, means by of managing marginal justice criminal whereas strategies, inclusive through populations marginal integrate policies explicitly exclude marginal populations through banishment, incapacitation and stigma. 152 � Chapter VII  Penalisation of homelessness and prison - Prison and Inequality References Press, 2007). University Chicago (Chicago: 36 Vol. Research, of Review A Justice: Crime, Punishment, and Politics in Comparative Perspective. Crime and Lappi-Seppala,T. TonryM. in Scandinavia,(2007)Penal Policyin (ed.) 1(1), pp.27-40. Prevention Population. Crime and Criminology Prison in Studies Finnish Scandinavian of Journal the of Fall The (2000) T. Lappi-Seppala, Sociology 61 (4),pp.778-794. of Journal British States, PenalLacey, (2010)among N. Differentiating Cambridge and (Cambridge: University Press). Economy Democracies Political Contemporary Dilemma: in Prisoners’Punishment The (2008) N. Lacey, Punishment andSociety13(3),pp.283-306. Tolerance? Imprisonment in the Netherlands and England 20 Years Later, Dirkzwager,and C. (2011):Kruttschnitt, A. in Contrasts Still ThereAre British JournalofCriminology48(6),pp.720-737. The Rise of the Penal State: Neo-liberalization or New Political Culture, De Koster, W., van der Waal, J., Achterberg, P. and Houtman, D. (2008) Myth ofNatural Order (Cambridge:Harvard University Press). Harcourt,(2011)B.E. Freeof Illusion The the and Punishment Markets: Contemporary Society(Oxford: Oxford University Press). and Rights in Order Social and Crime Control: (2001):of CultureD. The Garland, Human Welfare, Europe? (eds) E. Democracy (Abingdon:Routledge). in Dumortier, and Punitiveness S. Resisting Snacken, In in Perspective. Punishment and Comparative Welfare Economy, Political (2012) D. Downes, Globalization. (Aldershot: Ashgate). and Justice Criminal Comparative (ed) D. Nelken, Turn’, in ‘Punitive the and Globalization Criminology, (2011) Comparative D. Downes, (Chicago: Netherlands the in Justice University of ChicagoPress). and Crime (eds) and C. Tonry, M. In Bijleveld, Netherlands. the of Climate Penal Dystopia? the to in Road Changes the (2007) R. Swaaningen, van and D. Downes, (Eds) L. McAra, University Press). and in S. Punishment Perspectives Armstrong, on and Punishment: The Contours of Control. (Oxford: Oxford Welfare In (2006) Perspective. K. Comparative Hansen, and D. Downes, Less and Post-Fordism Control, Immigration Eligibility, PunishmentandSociety12(2),pp.147-167. (2010) A. Giorgi, De Studies inCriminology). Clarendon (Oxford: Change Penal of Sense Making T.(2008) Daems, Criminology andCriminalJustice6(4),pp.435-456. Cavadino, M. and Dignan, J. (2006) Penal Policy and Political Economy, GISS). Busch-Geertsema, V. (2013) Criminalizing Housing First Europe: Final Order:Report (Bremen: Penal and Migration, aViewfrom Europe. Mobility SociologyCompass6(2),pp.113-121. Global (2012) V. Barker, Penalisation of homelessness and prison - Prison and Inequality  Chapter VII � 153 Lappi-Seppala, T. (2011) Explaining Imprisonment (2011) in Lappi-Seppala, T. Europe. European 8(4) pp.303-328. Journal of Criminology Manzanedo, C.; Navarro,A. and tras Izuzquiza, las D. rejas. Informe (2012): 2012 “Atrapados sobre Extranjeros los en España”. Centros Centro de Pueblos Unidos Internamiento del Servicio de Jesuita a de España. Migrantes Nelken, Explaining D. Differences (2011) in European Prison Rates: A Dilemma, Punishment The and Prisoners’ Society Comment on Lacey’s 13(1), pp.104-113. Newburn, (2006) T. Contrasts of Intolerance: Cultures of Control in the United States and Britain. In and Newburn, (eds) Rock, T. The P. of Politics Crime in Control: Essays Honour of David Downes (Oxford: Studies in Criminology). Clarendon J. Peck, (2003) and Geography Public Mapping Policy: the State. Penal pp.222-232. 27(2) in Human Geography Progress Pratt, J., Brown, D. Brown, M., Hallsworth, (eds) S. and Morrison, W. (2005) The New Theories, Punitiveness: Tends, Perspectives. (Devon: Willan Publishing). Excess. Penal of Era an in Exceptionalism Scandinavian (2008a) J. Pratt, Part I: The Nature and Roots of Scandinavian Exceptionalism, British 48(2), pp. 119–37. Journal of Criminology, Excess. Penal of Era an in Exceptionalism Scandinavian (2008b) J. Pratt, Journal British Future?, a have Exceptionalism Scandinavian Does II: Part 48, pp. 275–92. of Criminology, Pratt J, ‘Penal (2011): Excess and Penal Exceptionalism: Welfare and Crawford, in societies’, Anglophone and Scandinavian in Imprisonment and Justice Criminal Comparative and Governance International (ed) A. Press). (Cambridge: Cambridge University Urban Governance (Rose, 2000) Government and Control. In Garland, D. Press). and University Sparks, Oxford R. (Oxford: Theory. Social and Criminology (eds) Schmidt, J (2012): “The Danish Government’s Policies on Migrants’ Rights Homeless to Public Space and Public Facilities and Services for Homeless People: An Example of the Criminalisation of Homelessness in Copenhagen” in “The Experiences Geographies of and Homelessness: Homeless Homeless Summer 2012. Magazine FEANTSA Policy in Different Spaces” (Simon, 2007) Homeless Governing Through Crime: How American Democracy and a Created Culture of (New Fear the Transformed War on Crime Press). University oxford York: Simon, J. (2012) Mass Incarceration: Problem. In Reitz, From K. and Petersilla, J. (Eds) Social The Oxford Handbook of Policy to Press). University Oxford (New York: Sentencing and Corrections. Social Snacken, S. and E. Dumortier, (eds) Resisting Punitiveness in Europe? (Abingdon: Routledge). Human Rights and Democracy. Welfare, M. Tonry, (2007) Determinants of Penal Policies. In M. Crime, Tonry, Punishment, and (Chicago: in Politics Perspective. Comparative (ed) of Chicago Press). University and Ugelvik, Dullum, T. J. Penal (2012) Exceptionalism? Nordic Prison Routledge). (London: and Practice. Policy 154 � Chapter VII  Penalisation of homelessness and prison - Prison and Inequality of CriminalLaw andCriminology100 (3),pp.1225-1245. Twentieth Century Patterns and Twenty-FirstStates: United Century Prospects, the Journal in Imprisonment of Scale F.E.(2010)The Zimring, York: Oxford (New University Press). Decline Crime American Great The (2007) F.E. Zimring, of Legal Studies22(2),pp.341-66. PenalTheory,in DystopiaZedner, of Dangers (2002) Journal OxfordL. Critical Sociology37(2),pp.217-224. Whitman, J.Q. (2010) of Neo-Liberalism and Comparative Punishment, site accessed21 June2012.) http://www.idcr.org.uk/wp-content/uploads/2010/09/WPPL-9-22.pdf; Walmsley, R. (2012): World Prison Population List, (Ninth Edition). See Exploring theWork ofLoic Wacquant. (Bristol:PolicyCritically Press). Marginality: Advanced and Criminalisation P.(eds) Squires, J. Lea, In and Commentators. and Critics to Response century: 21st the in Prisonfare WorkfareWeddingand of The (2012) Wacquant, L. of SocialInsecurity. (Durham:DukeUniversity Press). Government Neoliberal The Poor: the Punishing (2009) Wacquant,L. Minnesota Press). of University Poverty. (Minneapolis: of Prisons (2009) L. Wacquant, PART III good practices “I was rapidly learning that one of the challenges of being a street lawyer was to be able to listen.”

The Street Lawyer, by John Grisham (1998) Political measures  good practices � 157 ractices - Political measures Good practices Chapter XIX highlights how, through the social intervention at Barcelona Airport, actions respecting the human rights of homeless people can be carried out without national homelessness strategies in place. The this example is that the only most thing that evicting, expelling and penalising important homeless conclusion from people does is shift the problem to another resolving place, the problems or meeting the needs neighborhood of homeless people. The time and form or city, without of integration of individuals homeless the of homeless capacity the and will the people and trust contact, daily requires and the gradual elimination of themselves, homelessness as well as a sustained commitment to policies that include an employing emphasis on prevention of appropriate homelessness as well as social respect for the Housing First approach. Politicians of should homelessness not by try to penalising solve it, discriminating the when by problem it comes punitive to providing and resources, because criminalising the goal eradication of homelessness –– because it is possible. actions, should be or by In the analysis we conducted in the first part of Chapter VIII, we triedguidelines the to developing highlight in Approach Rights-Based Human the of role important the for national strategies aimed at eradicating homelessness in Europe. We reviewed the development of case law by the Council of Europe’s Committee on Social Rights specifying the implications of article 31 European Social Charter on of 1996, and in particular of point the 31.2 on the prevention, right to housing of Europe. reduction and eradication of homelessness in the Revised The purpose of this part is to show that it is possible to make policy of that the is human respectful rights of homeless people through national strategies for the eradication of homelessness or through specific actions and programmes like interventions in train stations or airports. This chapter will demonstrate that policies that support homeless people to access housing and services are far people from more certain areas. effective A than national strategy banning for eradicating homeless homelessness is the first step, and its implementation is crucial; it should be enacted in a way that fully respects the human rights of homeless people. It is necessary to avoid the “tyranny of numbers” means justify homeless of numbers the reducing statistically of goal the let not and pitfall that, in fact, penalise homeless people. This chapter will also highlight good practices and experiences in countries without integrated homelessness strategies, and point countries that have both good and bad practices tooperating in the same cities or regions. Raising awareness about the Thecross-purposes. at impact policy-making this eliminate to step important an is homelessness of criminalising and penalising right hand measures might not on know what the left hand is undermineoften can and policy, social for responsible are who those by enacted usually doing: penalising measures are not by aggravating the situation.good work that seeks to prevent or end homelessness, 158 � good practices  Political measures Political measures chapter VIII Prevention, Homelessness Strategies and Housing Rights in Europe

Guillem Fernàndez Evangelista Associació ProHabitatge Government and Public Policy Institute (IGOP) Autonomous University of Barcelona “A peaceful beggar poses no threat to society. The beggar has arguably only committed the offense of being needy. The message one or one hundred beggars sends society can be disturbing. If some portion of society is offended, the answer is not in criminalizing these people ... but addressing the root cause of their existence. The root cause is not served by removing them from sight, however; society is then just able to pretend they do not exist a little longer”.

U.S. District Court Judge Robert Sweet (1993) Prevention, Homelessness Strategies and Housing Rights in Europe  Chapter VIII � 161 Principles , 2001). et al., 2001). , 2004). One can also talk about “universal “universal about talk also can One 2004). al., et et al., 2004). Gerald Caplan published Many public health professions have accepted into public this three Many health division have which professions of prevention prevention”, “quaternary include to further it extend others but was, categories would be the set of healthcare activities attenuating or the avoiding consequences of unnecessary or excessive interventions by the healthcare system (Ortún, 2003), itself, in prevention as not prevention” “tertiary considering, it, criticise others while (Cornes rehabilitation as rather but of Preventive Psychiatry in 1964, in which he considers that psychiatry preventive the frequency in a specific community, is the set of knowledge and skills to reduce, of mental disorders, the duration of the disorders and the appearance or of the sequela deterioration that some of them involve. seeks to the reduce incidence health promoting by or Therefore, health education; “secondary “primary prevention” prevention” aims to reduce prevalence treatment and accessibility by and speed of services; means and “tertiary finally, prevention” of early seeks to diagnosis, reduce sequela effective and chronic recurrence through rehabilitation 2006). and (Vallejo, reinsertion social and “selective prevention” prevention”, “indicated (Shinn prevention” Prevention can be the set of activities aimed at avoiding the occurrence of something, of occurrence the avoiding at aimed activities of set the be can Prevention that is, anticipating in order to minimise risks. The terms secondary primary, and tertiary prevention have been used traditionally in the theoretical-practical field of the science (Cornes of prevention What prevention of homelessness mean? Homelessness affects the at all exclusion housing and homelessness the fight to strategies adopted Member have countries States of the and France European Netherlands, The Finland, Denmark, Sweden, Norway, Union. (Ireland, national Different Portugal) or regional (England, Scotland, Northern Wales, Ireland, and the North etc.) region in level. Homelessness Germany, is Rhine-Westphalia on the European fashion coordinated a in policies design to possible it makes which agenda, political municipalities the of role important the since level, local the at them implement and is acknowledged in most Netherlands, national strategies Ireland (Denmark, and prevention Sweden, in interest growing a is there that show also homelessness Scotland). of Finland, eradication The The different national as the most effective and strategies least costly approach Most (CEC, strategies 2010). make for the explicit reference to the prevention of homelessness Ireland, (Norway, Scotland, Sweden, England, Northern Wales, Finland, Ireland, The Netherlands, France and in policy development. evident but national distinctions are Portugal), 162 � Chapter VIII  Prevention, Homelessness Strategies and Housing Rights in Europe o xlct eto o gnrl esrs bcue hy sue h eitne of existence the assume they because measures, general of contemplate mention strategies explicit no Some (Wales). people homeless facilitating access to the private market (Sweden, France) for and others (Finland) make housing social to access facilitating or (England) rentalhousing social of type the not) (or specifying (Ireland), housing social providemore and plan to need the acknowledge they but developedplans separatestrategieshousing documents, referin homelessness to in tertiary prevention (France, Portugal). The primary prevention measures we can find or secondary achievedin be to goals quantitative the on less focus preventionand primary Norway,emphasize othersprevention(Denmark, measureswhile Finland), In some strategies, prevention can focus more on secondary prevention and tertiary Prevention instrategiestocombathomelessness to prevention) ensure primary asufficientsupplyofaffordable housing(Shinnetal.,2004). (or measures preventive policy tertiary general and replace secondary cannot that interventions mind in bear to necessary is it However, most practical points of intervention for prevention initiatives (Culhane a as The application of Caplan’s definition of homelessness helps us understand prevention (Busch-Geertsema etal.,2008)we canseethefollowing: homelessness to measures prevention of classification Caplan’s Gerald apply we if Pawson and particularly in the study of homelessness (Edgar public health sphere (Cornes the importance of the evidence-based prevention approach is spreading, both in the and the specific problem one is seeking to eradicate (Crane and Brannock, 1996). But unless there is an unequivocal and proven causal link between intervention strategies like in the natural sciences, and that a problem or phenomenon cannot be prevented who claim that it is impossible to 1999) establish causal Freeman,relationships in and 1981the social sciences (Billis, authors different by kindly viewed been not has sciences social the in health public frameworktheoreticalof the of application The etay rvnin Maue treig epe h hv aray ie i a minimising thechancesthatthey willreturn toasituationof homelessness. in at attempts lived or relocation quick already require therefore and have homelessness of situation who people targeting Measures prevention: Tertiary future (e.g.evictions). or because they are in crisis situations that lead to homelessness in the very near hospitals) or prisons like institutions of responsibility long-term the under been having (e.g. characteristics their to due process homelessness a starting of risk Secondary prevention: Interventions that focus on people with a potentially high social and aid housing to protection ispivotal. linked policies other and affordability) and (supply,access, policy housing general of role the that prevention of level this at is It population. the of part large a or population general the among starting process Primary prevention: These are the activities that reduce the risk of a homelessness of situations to be prevented and identifies the risk factors and the and factors risk the identifies preventedbe and to situations of continuum , 2007;al., et Busch-Geertsema et al., 2004) and in social policy (Sutcliffe , 2008 and Culhane and 2008 al., et et al., 2000; Shinn , 2011).al., et Thus, et al., 2005), et al., 2011). et al., 2001; Prevention, Homelessness Strategies and Housing Rights in Europe  Chapter VIII � 163 The European Social Charter (ESC) of social rights 1961 with in the Europe. Together wanted European Convention on Human Rights to guarantee The issues. rights human and for platform Europe’s of promote Council the constitutes it (ECHR), European Social Charter contains social and economic rights, while the European Convention on Human Rights focuses primarily on civil and political rights. Little by little, the perception that the Council of Europe’s ESC is the “poor relative” of the ECHR, of the stressing the evolution Social European Charter as an emblematic manifestation of the European Social Rights and Law as or a Social bastion Human of European Rights A social Law contributing democracy, has factor dissipated in (Jimena, overcoming 2006). this strength initial gained by perception the was principle the of indivisibility progressive of Social human Charter rights. was The successively updated European in different protocols (1988, 1995) and Through Through case law by the European Court of Human Rights and the Social Rights Committee, the Council has of identified Europe for thebuilding grounds strategies aimed at eradicating homelessness in Europe. As we will see the below, case law stemming from article 31 of the Revised European housing, specifies Social what Charter it understands in by “prevention”, relation “reduction” and to “gradual rESC). elimination” of homelessness (art. 31.2 The Human Rights Based Approach and Strategies to tackle homelessness number of homeless people in their streets, their recurrence and chronic homelessness chronic With and regard to recurrence their tertiary streets, prevention their measures, in some people countries homeless tend of number to reduce the “Housing or approach First” “Housing the on based explicitly are that strategies using Sweden, Finland, Led Approaches” Denmark), (Norway, while other countries also consider this approach to be important but, at the same time, wish the to improve against fight the and services support housing and shelters of network the of quality sub-standard housing (The Netherlands, France, Portugal). stress Still access other by homeless countries people to Wales). England, Scotland, services (Ireland, health, training, employment and housing Secondary prevention measures tend to be reducing the initiatives number aimed mental of prisons, leaving at are who people evictions help to efforts increasing preventing and (Norway, France) Sweden, and Wales, Finland, Ireland, Scotland, health institutions or hospitals (de-institutionalisation), after so extended that stays they can have access to adequate housing Sweden, (Norway, Denmark, Finland, The Netherlands, France). Thus, some countries specify target percentages in the The Netherlands) and others reduction explain of the evictions (Norway, measures in more general terms (France), whereas Denmark). (Portugal, others strategy in their homelessness of evictions reduction do not include prevention and secondary prevention measures does not imply abandoning housing policies that are are that policies housing abandoning imply not does measures prevention secondary geared toward increasing the social housing stock in order to ensure the reduction 2010). (Luomanen, of homelessness 164 � Chapter VIII  Prevention, Homelessness Strategies and Housing Rights in Europe tenants against unfair and disproportionate contractual conditions, the indiscriminate Council of Europe, the “prevention of homelessness” can include legal protection of As reflected by the Recommendation by the Commissioner for Human Rights of the in order toguarantee access to(social)housing. targetingpolicy housing a apply should States the groupsunderprivileged people of certain vulnerable groups from becoming homeless. On the ground, this means that housing and preventing the providingloss of such at housing, which involvesaimed actions measurespreventing take should Charter the signed have who States the a situation of homelessness (Kenna, 2006). In its turn, the Committee considers that overcome prevent in and again themselvesdifficulties once from finding their them wellas people, homeless for support measuresand as housing people these help to take of provision immediate the involves to which homelessness, countries to response in measures obliges rESC the of 31.2 article that considers CSR 2010). The special requirement of adopting measures toward its “gradual elimination” (Mikkola, 31.2 of the article rESC are fromthe “prevention”stemming and the “reduction”goals of homelessness, The with the results. and resources of terms in powers public the of obligations the for implications serious has homelessness against fight The a reasonable periodoftime(Mikkola, 2010). within housing adequate providedwith be should they so, do to wish not do who conditions such in living people those considering and sufficient, be to considered be cannot adequate, though accommodations, provisional that Considering 2003). (CDS, accommodation or shelter adequate of type other or dwelling a of occupant legal the not is who individual any is person” “homeless 31.2a that article clarify CSR the to of relative conclusions 2003 The 2006). (Kenna, States Party the by undertaken obligations the clarify to out sets that questionnaire detailed a includes oversightprocess the explains, PadraicKenna As rESC. the and ESC the in out set oversee its application, determining if the countries have abided by the undertakings and in the rESC, explicitly so. The Committee of Social Rights (CSR) was created to have rESC the and ESC undertaken to ensure the a series of human rights connected with the right to housing, ratified and signed that countries the regard, this In undertake totakemeasures designed: Partiesthe housing, to right the of exerciseeffective the ensuring to view a “With housing (art.31to rESC),makingexplicitreferenceright totheproblem ofhomelessness: the and rESC) 30 (art. exclusion social and poverty against protection to the revision introduced a number of new articles that recognized rights like the right the Charter as the safeguard of social rights and social security in of role Europe.the strengthen As to also a was result,goal Europe’s of Council The adopted. was ESC the since place taken had that changes social the reflecting of aim the with 1996, of (rESC) Charter Social European Revised the in contents its adapted definitively to makethepriceofhousingaccessiblethosewithoutadequateresources.” to prevent andreduce homelessnesswithaviewtoitsgradual elimination; to promote accesstohousingofanadequatestandard; Prevention, Homelessness Strategies and Housing Rights in Europe  Chapter VIII � 165 Moreover, requirements Moreover, regarding 1 an obligation to consult the parties affected in to order find solutions alternative to eviction; eviction; reasonable notice period before an obligation to fix a accessibility to legal remedies; accessibility to legal aid; compensation in case of illegal eviction. Recommendation of the Commissioner for Human Rights on the implementation of the right to housing to right the of implementation the on Rights Human for Commissioner the of Recommendation 30 June 2009. CommDH(2009)5 Strasbourg, 1. termination of contracts and evictions, as well as having termination rental a as as and of housing sufficienthaving well evictions, contracts stock to provide housing to vulnerable groups. The target of “reducing homelessness” measures implies and the overcome them help long-term to measures introduction as well as measures, people, of homeless to attention immediate such emergency as supplying housing and providing Obviously, these conclusions are based on the Human Rights Based Approach and are are and Approach Based Rights Human the on based are conclusions Economic, these on Committee Obviously, UN the of 7 nº Comment General with alignment perfect in which protections procedural the that considers it where Rights, Cultural and Social should be applied in to relation should evictions forced include: (a) an opportunity for notice reasonable and adequate (b) affected; those with consultation genuine for all affected persons prior to the scheduled date of eviction; (c) information on the the which for purpose alternative the on applicable, where and, evictions, proposed land or housing is to be used, to be made in available reasonable time to all those or officials government involved, are people of groups where especially (d) affected; the out carrying persons all (e) eviction; an during present be to representatives their eviction to be properly identified; (f)evictions not to take place in particularly bad or weather at night unless the affected consent persons otherwise; of (g) provision in are who persons to aid legal of possible, where provision, (h) and remedies; legal need of it to seek evictions should from redress the not courts. result in Moreover, individuals being rendered homeless or vulnerable to the violation of other human rights. Where those affected are unable to provide for themselves, the State party must take all appropriate measures, to the maximum of its available resources, to housing. adequate alternative provide the availability the of availability social housing for rent, selection criteria and waiting periods and people of protection legal the mind in bear also should One applicable. also are lists threatened by eviction, in particular setting of the obligation the and eviction, to solutions obligation alternative find to order in parties to consult with the affected a reasonable advance notice of eviction, and forbidding the evictions winter period In at (Mikkola, its 2010). 2005 night Conclusions for Lithuania, or Norway, in Slovenia and Sweden, the Committee on Social to States limit must eviction, the set against up risk unlawful protection procedures Rights considered that, for the for Ireland that, in order to of eviction. The Committee recalls in Conclusions 2011 comply with the legal Charter, protection for persons threatened by eviction must include the following: 166 � Chapter VIII  Prevention, Homelessness Strategies and Housing Rights in Europe Rights can be brought to bear in these conclusions, and in 2012, the ECSR cited ECSR the 2012, in and conclusions, these in bear to brought be can Rights Human of Court European the and complaints collective both from jurisprudence The Slovenia). and Portugal Netherlands, The Italy,Lithuania, (France, obligations of having ratified article 31 of the Revised European Social Charter failed to fulfil their EU Member States that are obliged to comply with this fundamental right by reason eight the of Six housing. to right the guaranteeing of terms in responsibilities their with countries of compliance the on conclusions annual its published Approach”, Based Rights “Human the on based mechanism monitoring its through Europe, of In January of 2012, the European Committee of Social Rights (ECSR) of the Council by thefollowing: characterized is and right human basic a is housing that principle the on based is (2011),Pleace approach Nicholas this by noted As States. United the from comes which approach,First Housing the of Europe in adoption the to led argument This homeless people cansustainpermanentindependenthousing(Edgar,formerly 2009). that ensure and families their and people homeless on effects tackle negative the reduce homelessness, levelof homelessness, the reduce homelessness, of preventcauses the to strategies developing be should States Strategy, 2010).groups(Mikkola, Inclusion Social EU frameworkthe the of in conclusion, In capabilities, and therefore different positive measures should be implemented in risk their improve to services support multiple receive to able be also should problems sum of“prevention” and “reduction” measures aspeopleandfamilieswithmultiple of Thus, independence”. degree possible greatest “the and dignity human respecting of importance the out pointed also has CSR The heating. and water,lighting drinking utilities, basic even temporary shelters, must meet standards of safety, to health right and hygiene,dwelling, the the respected,that be means must which dignity individual’s an housing, including regarding Rights Human for Commissioner the of Recommendation the with conflict 2010).(Mikkola, treatmentdegrading the and mayby torturespecified of As prohibition they as pavilions, and largelife to right the relativeto ECHR the of 3 in and 2 articles in dignity of standards or space single a in shelters traditional in space bunk creating indiscriminately on based homelessness eradicate to policies public on have can recommendation this impact the account into take and difficulties their avoid being rendered this In homeless. regard to important is it hr rdcin prah ie spotn te iiiain f problematic of minimization the drug/alcohol usebutnotinsistingontotalabstinence). supporting (i.e. approach reduction harm A goals). service user choice and control; basing treatment plans around service users’ own on emphasis an with services health mental deliveringRecovery (i.e. orientation Consumer choiceandself-determination. provision is not conditional on compliance with psychiatric treatment or sobriety). Separation of housing from mental health, drug and alcohol services (i.e. housing not behousedwithindedicatedbuildingsbutordinary housing). Scattered site housing using independent apartments (i.e. homeless people should A commitmenttoworking withserviceusers foraslongthey need. Respect, warmth andcompassionforserviceusers. can be understood as a understoodas be can homelessness” “graduallyeliminating Prevention, Homelessness Strategies and Housing Rights in Europe  Chapter VIII � 167 Adopt the necessary legal, financial and operational means of the Charter. ensuring the goals laid down by achieving towards progress steady and results. on needs, resources Maintain meaningful statistics adopted. of the impact of the strategies reviews Undertake regular Establish a timetable and not defer indefinitely the of each stage. objectives deadline achievingfor categories the the of each on adopted policies the of impact the to attention close Pay the most vulnerable. concerned, particularly of persons A reasonable timeframe. timeframe. A reasonable progress. A measurable resources. available maximum use of consistent with the A financing Policies Policies against homelessness are undergoing a paradigm shift from a model based on alleviation, rehabilitation and stabilization of homelessness to a housing-based model centred on preventing approach plays an important and role in the development of these policies, reducing as it is not homelessness. The limited only to recognizing the right to housing in human the constitutions or legislations rights Conclusion Only Finland and Sweden met the requirements of the 2012 (ECSR) conclusions. Both countries have national strategies housing for as the focal eradicating point and the homelessness “evidence-based approach” as based the Sweden and Finland of example The mechanism objectives. measurable and clear on overseeing for France, hand, other the On housing. to right the respect to possible is it that shows in spite of having approved the enforceable right to housing (DALO) in 2007 motivated, –– in part, by FEANTSA’s successful collective complaint against them –– still fails to provide access to housing at an adequate level (article rESC), 31.1 has failed to reduce significantly the number of homelessand does peoplenot guarantee (articlethat housing prices 31.2 rESC) are affordable for eviction people its for France condemned ECSR the with limited Moreover, rESC). 31.3 (article resources eviction with threatened were families 91,000 that unacceptable it found and policy between 2007 and 2009 with no prospects of relocation and no right to housing benefits. This leads one to conclude that the fight for the right to housing and its to go in Europe. implementation still has a long way In the Collective Complaint pointed FEANTSA Approach, v Based Rights France Human the (CC following No. Committee, the 39/2006) jursiprudence, added to the Social European Revised the in rights the realizing in States of obligation the that out Charter must be practical and effective. This means that, must: States Party for compatible with the treaty, the situation to be the Collective Complaint Autisme Europe v. France (CC No. 13/2002) France in which the v. Complaint Autisme the Europe Collective Committee established that the measures taken to implement the Charter Articles criteria: three must meet 168 � Chapter VIII  Prevention, Homelessness Strategies and Housing Rights in Europe suitability ofaffordable housing. temporary and emergency shelter of and improving provision the quality for of services for time homeless people wait and the supply the and reducing street, the on homelessness of duration the reducinghomelessness, of forms explicit more the to who are leaving institutions (like prisons) or by preventing evictions, putting an end the prevention of homelessness) either by offering measures oriented toward reduce people and prevent through elimination gradual poverty,its of perspectiveof penalisation the from can but that points and management identify the from not problemtherefore this approach(and homelessness strategies national different The protecting oractuallyviolatinghumanrights. the hamper the access to public services and benefits, to or by not recognizing, used not respecting, not be can Both development of human dignity through homelessness. restrictive policies that penalise poverty against and fight the in coin same the a of sides two the are approaches Both versa. vice and approach, rights-based evidence-based approach plays an essential role that is complementary to the the regard, human this In evolution.proper their ensuring for essential is rights human of ratherbut relationStates, in the policy of public of monitoring the principles the to Prevention, Homelessness Strategies and Housing Rights in Europe  Chapter VIII � 169 Support and Housing and Support . Policy Press, Bristol Press, in Europe. Policy Edgar, B. (2009): European Review on Homelessness. FEANTSA Observatory December 2009. European of Statistics on Social Homelessness. and Modernity Prevention, Politics: ‘Recursive (1999) R. Freeman, 13: 232-241. and Society, Children Systems’, Jimena, L. (2006): Retos pendientes especial, del la ratificación Estado de Social la Carta Social Español: Europea Revisada modernization for yearbook Multidisciplinary públicas. políticas En Nuevas de 1996. p. 40-71 of the Public Administrations, Kenna, P (2006): Housing Rights and Edicions Human Rights. ProHabitatge Clarius Press Rights and Policy. Housing Law, P (2011): Kenna, Luomanen, R. Long-term (2010): homelessness reduction programme 2008 – Host 2011. Country Report in the long-term homelessness, Finland to reduce National Programme Peer Review The Finnish Legisactio Social Human Rights of Europe. Mikkola, M. (2010): (2003): Ortún, Gestión V. clínica y sanitaria. De la práctica diaria a la p.245 Elsevier/Masson; academia, ida y vuelta. Barcelona: Homelessness of Evaluation (2007) G. Netto, & E. Davidson, H., Pawson, : Scottish Executive). Activities in Scotland (Edinburgh Prevention “The Ambiguities, Pleace, Limits N. and (2011): Risks of Housing First from a European Perspective”. European Journal 5, No. 2, December 2011 of Volume Homelessness _ Billis, D. ‘At (1981): risk of Journal prevention’, of Policy Studies, Vol. pp. 367-379 No. 3, 10, and Fitzpatrick, S. Busch-Geertsema, (2008): V. Effective homelessness prevention? Explaining reductions in homelessness in 2: 69–95. Journal of Homelessness England. European Germany and Caplan, G (1964): New Basic Principles York: of psychiatry. preventive Books. CSR (Committee on Social Rights) (2003): 2003 Conclusions. Council 1 – Italy p. 345 Volume of Europe de Ciencia (2004): C. Pedrejón, & Arauxo,A. Fernández,L.; JM.; Cornes, psicología. en Implicaciones perspectivas. y fundamentos prevención: la Barcelona; of University Medicine, of Faculty the of magazine Psychiatry 31(2):86-95 Commission of the European Communities (2010): Proposal Supporting for and Social Inclusion 2010. on Social Protection Joint Report the 98 final. SEC (2010) document Brussels, 5.2.2010 in people young among Homelessness (1996) Brannock J. and P. Crane, Australia: Early Intervention and Prevention. A Report to the National Scheme, Affairs Research Hobart: Youth National Clearing Housing for Studies Youth Culhane, D.; Metraux, S. & A Byrnea, Prevention-Centered (2011): T. Approach to Homelessness Assistance: 2, 295 — 315 A Debate, 21: Policy Paradigm Shift? Housing (2000): A. Mina-Coull, and J. Doherty, W.; Edgar, References 170 � Chapter VIII  Prevention, Homelessness Strategies and Housing Rights in Europe alj, . 20) Itoucó a a scptlga l psiquiatría. la y psicopatología Masson. 6 la a Introducción (2006): J. Vallejo, countries? developing for relevance What Overseas Development Institute work? it does How it? is What Policymaking: Evidence-Based (2005): J. Court, and S. Sutcliffe, Vol.2 Policy Public and (Thousand Oaks/London: Sage). Encyclopaedia Issues Social (Ed.) of Levinson Analyses D. Homelessness, of in: Prevention, (2004) M. Shinn, revisited. Analyses ofSocialIssuesandPublicPolicy, 1:95-127. Shinn M., Baumohl J., Hopper K. (2001). The prevention of homelessness th edition.p.814 Political measures chapter IX Homeless People at the Barcelona Airport

A Model of Inter-Administration Coordination

Carme Fortea Busquets Head of the Department of Support for Vulnerable People. Quality of Life, Sports and Equality. Barcelona City Council

Homeless People at the Barcelona Airport – A Model of Inter-Administration Coordination  Chapter IX � 173 The difficulties of resolving this problem led AENA to call attention to the complexity the to attention call to AENA led problem this resolving of difficulties need The the of government) regional (Catalan Generalitat the alert to and situation the of for an inter-institutional intervention that would involve different administrations Barcelona Barcelona Airport (13 km away municipality of from El Prat), has long the been used by homeless centre people who move there of and Barcelona, live located permanently on in these premises, the and it many other is international airports. now With structural the opening reality, like of a in new terminal (T1) the economic and crisis, this situation, identified more than tenyears ago, has become number of people living in the airport ago the daily average While ten years worse. people (57 2010 in 96 around to skyrocketed average this context new the in 12, was the Aérea, Navegación y Españoles (Aeropuertos AENA T2). in people 39 and T1 in agency in charge of the Barcelona Airport) and the Catalan police force d’Esquadra) (Mossos set their to up return them joint help to them initiatives of to some to flights refer offer to some as well people as services, to social the El Prat municipal considered. even of both terminals was closure for the night hometown. Proposal As for the Barcelona Airport, it satisfiesshelter all from these the protection winter conditions: cold and a roof, the summer provided by heat, some lavatories stores, medical for attention hygiene, if food needed, protection from aggressors (thanks to the security staff), etc. Over time, these into conditions developed have an unsustainable situation, both in prompted terms have facts These conditions. of living of unfitness the the of terms in and increasing people number of homeless the both that forgotten be not should It situation. this address to action for need the an important role. and “image” issues play of the airport role strategic For For every person working for homeless people in train or bus stations, or even in airport terminals, it is a fact well-known that these people places many who attract a as spaces these use who and excluded, socially are who homeless, themselves find home. do They so for a of variety these them reasons: places with provide security in the braodest sense of the term, including not only a roof but also safety against homeless that way long the in points resting intermediate also are these aggression; people often have to travel. It is precisely in this widest sense airports of can protection that provide attention most and the shelter to security come and towns to and cities of extremely dynamics the vulnerable from apart people; are places these defenceless individuals. Motives for the action Historical evolution 174 � Chapter IX  Homeless People at the Barcelona Airport – A Model of Inter-Administration Coordination of the Barcelona City Council’s Equip de Gestió de Conflictes started to operate at operate to started Conflictes de Gestió de Equip Council’s City Barcelona the of During the first stage of action at the airport (social diagnosis), the team of educators Barcelona Airport-results Current modelforaction for homelesspeoleatthe The ActionPlanwas dividedinthree stages: Stages oftheintervention and theDirectorate ofSocialServicestheElPrat CityCouncil. Council, City Barcelona the of Equality. and Sports Life, of Quality the of Department of management the AENA, included government), Catalan the of agency an force,task This Plan. Action byled Services, Social for Institute (Catalan ICASS the So, in February 2011 a task force was formed to analyse the situation and to design an people inextreme exclusion. for services specialised most the of collaboration the as well as departments, and costs were defrayed bythe AENAandICASS.Asstatedabove, thisstagehadtwo parts: and Council City Barcelona the by supervised was team The people. homeless parts and was implemented by a team of professionals specialised in interventions for This second stage took place from 1 April 2011 to 13 August 2011, Plan. Action the of stage wassecond divided a in in two designed was which intervention, subsequent intervention. Comprehensive 2. Stage of theBarcelona CityCouncil. people homeless to assistance of frameworkplan the municipal in the people, of homeless for interventions in specialised team a Service), Integration (Social SIS the 2011.by early undertaken in being emergedcurrently are that actions These situation the of recurrence preventthe to actions undertake to as well as there, living people homeless help orderto in airport the at action joint prolongthis to the good results of the first two stages of the Plan, an agreement has been reached Stage 3. of conflictsituationsonthestreets. Gestió de Conflictes (Conflict Management Team), specialised in the management de Equip Council’s City Barcelona the by made was diagnosis This intervention. in the airport, which would later serve as a point of departure for a comprehensive 2011.sleeping grouppeople the homeless on of diagnosis social a of consisted It Stage 1: Social diagnosis. l l l l uut ad a amd t akig h dnmc ta cue homeless cause that dynamics people tosettleintheairport. the tackling at 13 aimed to June was 1 and from August, place took Plan, Maintenance the part, second The as airportsleepers. was aimed at working in groups on the problems of the 63 people identified The first part, the Emergency Plan, took place from 1 April to 30 June, and Monitoring-Prevention. Started in November 2011 and is ongoing. Given This stage took place between 14 February and 8 March The diagnosis set the guidelines for the the for guidelines the set diagnosis The Homeless People at the Barcelona Airport – A Model of Inter-Administration Coordination  Chapter IX � 175 began: a comprehensive comprehensive a began: Gathering information on the presence and of evolution homeless people at the on the conflict generated. airport and Contact with the terminal Catalan police, local staff, security, private (maintenance, tasks operational or activities including personnel devoted to commercial parking management, etc). police, transportation, contact with airport sleepers. Personalised for action. and proposals Definition of the situation Following this diagnosis stage, , the second stage of action of stage second the , stage, diagnosis this Following In this stage, a new set of rules and/or recommendations was enacted, governing only night; by closed was airport the and spaces, public airport the of operation the passengers with a flight ticketwere allowedin and inside.sleepers airport among both rules of protocol new this disseminate to helped At this point, educators the airport shops and services. It has been observed that people sleeping 1 in show Terminal a distinctive profile, and criminal to tend related more to profile a be have 2 more Terminal fragile in installed people and while problems), vulnerable (with some cases of severe mental dynamics. This situation may have its origins in the reduced presence of security and public) (both in private this terminal, forces because it is the lesser used of the terminals. intervention targeted at the problems invited identified. were institutions This two which secondCoordination, stageTechnical witnessedof Board the the of creation to join: the Consorci Sanitari (Health Consortium), to address situations of severe health problems, and the Catalan Department judicial of proceedings Justice, if needed in (primarily order for to people with accelerate to disabilities). these In institutions, addition the Board also includes technical staff Mossos from d’Esquadra (airport ICASS, detachment), AENA, El Prat City Council, and Barcelona City Council, as well as technical staff from the SEM (emergency medical services) and the Catalan government Directorate of Mental Health and Drug Abuse. A team of under work to hired was people, homeless for interventions in specialised educators, City Council. the supervision of the Barcelona This task was executed in an intensive manner for one month, working around the clock from Monday to Sixty-three Friday. people were identified, fifty-four of whom people 54 these of 20 turn, (in interviews information for contacted successfully were of Twenty-six services). social municipal Barcelona the with touch in been already had established was It 2. Terminal in 28 and 1 Terminal in located were people fifty-four the in airport the at sleep to back came and Barcelona to daily travelled them of some that and all of them had committed acts of uncivil 20% had criminal records the evening; behaviour (e.g. using toilets for personal hygiene, sleeping on seats in the terminal during the day, accumuling of garbage, asking for food et cetera). in behaviour, aggressive in shops, shops, consumption, petty robbery begging, alcohol the airport in to the order analyse situation. In took this they the process following steps: 176 � Chapter IX  Homeless People at the Barcelona Airport – A Model of Inter-Administration Coordination During thisstage, educators hadanofficeinthe airport. airport. the of operatingdynamics daily the referencefor a educatorspoint become the while maintained, were actors airport the all with coordination of spaces The has a connection with other localities, educators will try to rebuild that connection. The general work approach was the same: if a person who has settled in the airport with apermanentpresence attheairport. and daynight, in shifts work and with professionals schedules allowing them these to address intervention: any main emergency,of the intensity but not the stage, in previous was difference the to compared Support As Municipal People. the Homeless in for and Programme streets) the on living people homeless helping in specialised service (a team Detecció SIS the into integrated and hired was project) the of previousstage the in part taken already had (who educatorstwo of team A a the signed and All monitoring collaboration Barcelona. agreement. airport of of project city this the in stay of to district agreed involved a actors as airport the manage to thus, and, team) SIS airport, the in overnightstay their to known are that (with people for aspects work Council Townsocial the Barcelona the to delegate to agreed was it the from departing prevention, emergency and approach that had characterised the two monitoring previous stages. In this fashion, on emphasis enhanced an with perspective, new a given was intervention However,involved.the actors different the of intervention coordinated the continue to agreedpolicy, was the it of results good 2011,the November given in prevention) and (monitoring stage last the In evaluate itandtostudyitspossiblecontinuation. the in overnight staying people airport. Inmid-August,itwas decidedtoputanendthiskindofintervention, to no virtually were there and etc.) disability, a of a facility for older people, return to his/her family, proceedings for official recognition most difficult cases had already been resolved2011, (admissionJuly to hospital,of the admissionend into the By with. connection a have to claimed they town other any or Prat El from or Barcelona from either services, social and municipal to referred helped were etc. persons, undocumented abusers, substance the Consequently, people, solution. that elderly a plausible so Board, find the could from involved administrations attention different close received cases complex most The the securityforces. and services, social Generalitat the agencies, health the with coordination essential out carried people homeless for interventions in expertise with professionals cases, did not these In veryvulnerablesituation. a werein –– leavepremisesand clearly want they to the people involved difficulties fifteen the About given municipalities. assistance comprehensive respective needed their of services social the from others while receivedfree assistance flight), receivinga (upon origin of places their people of number staying the overnight intheairporthasfallensteeply. Many them), ofthesepeople returned to with coordination improved as well (as personnel Thanks to the presence of the specialised teams and to a higher presence of security Homeless People at the Barcelona Airport – A Model of Inter-Administration Coordination  Chapter IX � 177 The good results obtained –– thanks to the active involvement of an all set also the and agencies action, coordinated and attitudes positive of value the highlighted –– example. While this action did not eliminate the problem at hand, it allowed us to address, in an effective and efficient themanner, situation of particular individuals that find themselves in a situation of extreme exclusion,their preventing situation from becoming chronic due to lack of assistance. Inter-administration coordination need of situations resolving of purpose the with and space, limited and specific a in and social is emergency, not a new practice; indeed, this is a practice that, when applied practice to this homeless people, extend is to especially help effective and can successful dissemination from a their technical and experiences These standpoint. individuals excluded and citizens experts, politicians, help to awareness, raise to and of successful assistance approaches. to consider the possibility themselves Good practices A model to follow monthly average of 20 people, of whom approximately 10 people received continuous From the start of received the intervention by the SIS, people 64 people assistance, received with a 10 approximately whom of people, 20 of average monthly attention. About of 50% the people identified not aswere installed airport sleepers on its premises, but occasional were users of the airport as As a temporary shelter. for the of rest people, 20% (12 individuals) had to been social referred services for homeless people, others to services for drug abusers, and others returned to their families or to their hometown. evaluate Mental to health needed problems, We alcohol consumption and tackle. to hardest were that profiles the mark addictions other the evolution of the profiles of homelesspeople people receiving assistance, locatedtaking into consideration the time in required to address the airport and the obtained. and the results the problems In this new stage, the Board of Technical Coordination continued and now included now and continued Coordination Technical of Board the stage, new this In as well as disabilities), of charge in (section Court Barcelona the from workers social in the stayed of Court. the collaborators The El rest Prat from the medical examiner project. The EMSE team from Baix Llobregat joined the interventions at the airport, in order to provide psychiatric care in the form of relevant development, a as it mobile allows unit. this team This to is intervene at a the very airport whenever there are psychiatric emergencies, and hence every resource can swiftly as possible. be activated as 178 � good practices  Legal strategies That’s justice,that’s whatstreetlawisallabout:Dignity. TheStreetLawyerbyJohnGrisham(1998) Legal strategies  good practices � 179 gies - Legal strate Good practices Obviously, in a democratic society, keeping these matters on the public 1 Ponce, Ponce, J. (2009): “El Derecho a la Vivienda de las a la vivienda? Milhistorias Magazine. Fundación Rais. In ¿Derecho y Lobbying”. Derecho Personas sin Hogar y el Sector Tercer en España: Unfortunately, the fight for Law, in the words of the illustrious German jurist Caspar jurist German illustrious the of words the in Law, for fight the Unfortunately, legal mechanism: possible last the to resorting means sometimes Ihering, von Rudolf guardianship. In order for legal guardianship to exist, someone has to ask for it. In other words, the control by courts of public (and sometimes private, for example in the case of discrimination or housing harassment) omissions and activities must be required by a person, or by a group on behalf of that person, who is procedurally empowered to appear before claiming possible, judges theoretically is and it courts if even and result, a who As so. has do to the drive the resources and money) (time, the human rights of homeless people before the courts personal is circumstances very difficult, of given the the homeless people involved, as organisations that well are trying as to help. those Homeless and other of organisations shy the away because or resources, or expertise legal of lack a of because action legal taking from of close ties to the government administration against which such claims are being made. While these reservations are understandable, the failure of public authorities to fulfil their legal obligations, for example, by failing to create appropriate policies to ensure access to rights, is in itself problematic. It is difficult to challenge laws or policies as violating human rights if governments have failed to enact them. It important to speak is out against these omissions, as well as actual laws that violate rights. policy agenda will also depend on individually or the in groups, on pressure their institutions. exerted Also essential, by is that the the public private organisations and citizens, that are familiar whether with the problem of homelessness and are in a position to understand the needs and possible solutions, be assured the opportunity and responsibility of having their voices heard in formal and informal public decision- making processes. Organisations engaged in lobbying on these issues must have be can that possibilities legal the in- and limits regulatory existing the of knowledge depth developed. Thus, those homelessness organisations that are aware of the needs and have the essential legal know-how can play an important role. Of course, the role of Law does not end in the prevention of conflicts and the oversight of rights through the approval and amendment of legal rules. 1. Juli Ponce (2009) makes an interesting reflection on “Law andtells us that regulatory changes to protect the human rights of homeless people should Lobbying”where he be adopted by public authorities that are democratically legitimate and empowered to do so. 180 � good practices  Legal strategies goal ofexpandingtheconcepthumandignity. ultimate the with obligations, public and rights subjective the of development the in institutions social of strategies the on reflecting as well as perspective, broader far a from homelessness against fight the in Approach Rights Human the includes that a as considered be reality practical longer a show will examples These no issue. bureaucratic merely or political to people homeless allows noting. Law worth the are conclusion, rights In human to entitled persons as homeless the empowering in movements social of experiences the and ombuds-offices, and institutions social existence between networking effective the the addition, of In institutions. sharing various by clinics, the services legal or homelessness legal of issues university legal the in with specialising organisations consulting of lawyers, bono pro with working of experiences the examines chapter This Approach. Rights Human the participate in or incorporate might they how see to people homeless organisations with show work to that experiences different present to venture we chapter this In alternatives. various know- through overcome, legal be of should and lack can the resources that and/or how propose to is chapter this of purpose the Therefore, Legal Strategies chapter X Addressing Legal Needs of Homeless People in Sydney, Australia The Homeless Persons’ Legal Service

Louis Schetzer Policy Officer, Homeless Persons’ Legal Service, Sydney, Australia

Addressing Legal Needs of Homeless People in Sydney, Australia – The Homeless Persons’ Legal Service  Chapter X � 183 Primary homelessness: people sleeping rough, on the bridges, deserted buildings, etc. streets, in parks, under Secondary homelessness: people moving between various forms of shelter to –– including as sometimes friends, ‘couch referred relatives surfing’ temporary –– houses. hostels and boarding refuges, accommodation, youth emergency homelessness: Tertiary people living in single rooms in private boarding houses and without security of tenure. kitchen without their own bathroom, experiences of homelessness. In 2011, a study of 4,300 homeless people in Melbourne, in people homeless There 4,300 is also of a well-documented study relationship between a having a mental illness and 2011, In homelessness. of experiences any including (not illness mental a had sample the of percent 31 that found Australia form of alcohol or drug disorder). According to the ABS, the of prevalence mental mental of prevalence the times three is population homeless Australian the in illness the Significantly, homelessness. experienced never have who people amongst illness study also found that the vast majority of becoming homeless after people illness mental do their not acquired have a but mental homeless, become they when illness homeless (Johnson et al., 2011). Studies in Australia and internationally have consistently documented that people experiencing homelessness report a victimisation, including horrendous repeated and experiences of disproportionate childhood family level abuse, violence. Studies domestic of have and revealed that be to expected be can over Australia in men homeless young, of 70 cent per 30 and women percent of young, homeless homeless men and 30 of young, percent 70 of sexual abuse and that over survivors of survivors be to expected be can Australia in women homeless young, of cent per et al., 2006; Whitbeck et al., 2000). abuse (Thrane, physical Of the 27,000 people who an are homeless estimated in 3,500 people NSW, sleep night. every rough The definition of homelessness adopted by the Australian Bureau of Statistics (ABS) Statistics of Bureau Australian the by adopted homelessness of definition The is the widely accepted three-part definition of homelessness as (2003), as follows: McKenzie and David Chris Chamberlain devisedpolicy researchers by social Based on the most recent Australian Census figures for homelessness, there are over over are there homelessness, for figures Census Australian recent most the on Based 104,676 people across Australia who identify as being homeless, and over 27,000 (NSW). homeless in New South Wales people who are Sydney, Australia Homelessness in 184 � Chapter X  Addressing Legal Needs of Homeless People in Sydney, Australia – The Homeless Persons’ Legal Service vci o cie abtay vcin fo tnny cei ad et atr, and matters, debt complaints againstpolice. and credit tenancy, from evictions arbitrary crime, of victim a being for applications compensation language), offensive space, public to relating problems offences drugs, common illicit of Other use and spaces. possession (including charges public criminal minor in are offences minor for or ticket, valid without a transport public on travelling to relation in mostly notices, infringement The most common legal problem presenting at HPLS legal clinics relates to fines and legal practices. clinics and provides training and support for the PILCH. The staff of the HPLS co-ordinates and supervises all of the work done at the by staffed lawyersacting are clinics The crises. housing in people to accommodation, and food as such services, direct provide that agencies welfare at basis roster a on operated Tenareas. suburban threeSydney and of are city clinics inner the in offered clinics weekly the are users service its and HPLS between contact of points primary The been homelessoratriskofhomelessness. havewho clients over5,000 assisted HPLShas 2004, in homeless inception its Since people. 700 over assisted service 2011/12, the During problems. legal wide of a range to relation in area, metropolitan Sydney the in homelessness of risk at or homeless are who individuals representationto and HPLS advice provideslegal free supervised andmanagedby thePublicInterest Advocacy Centre (PIAC). run, NSW.is (PILCH)HPLS House Clearing LawInterest service Public the homelessness and providers Wales, South New Aid Legal firms, law commercial based interest collaboration that brings together 350 lawyers acting public effective highly a is (HPLS)Sydney in Service LegalPersons’ Homeless The Sydney Background totheHomelessPersons’LealService health problems, drugusedisorder oralcoholdisorder (Hodderetal.,1998). percent reported an alcohol disorder. Seventy-five percent of their sample had mental inner Sydney reported that 48 percent of the sample had a drug use disorder and 55 in hostels emergency in 210people of homeless study 1998 A homelessness. and disorders alcohol and drug between relationship well-documented a also is There permanent housing, employment or manage his life. He has had a history a had has He life. his manage or employment housing, permanent retain to difficult it finds Nathan that meant has impairment, mental other Nathan suffered traumatic brain injury as a child. This injury, combined with HPLS CaseStudy pro bono pro from Legal Aid and private law firms that are members of members are that firms law private and Aid Legalfrom pro bono solicitors from the partner pro bono from Sydney- Addressing Legal Needs of Homeless People in Sydney, Australia – The Homeless Persons’ Legal Service  Chapter X � 185 HPLS Case Study When inner-Sydney. in rough sleeping while sleep his in assaulted was Peter about details specific provide to unable was he lawyers HPLS to spoke Peter the injuries he sustained as a result of the violent act. He was admitted to hospital following the assault. The hospital records state that a bystander head Peter’s on stomped and kicked had attacker unknown an that reported while he was sleeping and had punched him several times. record The medical noted head do and records medical the so testing, extensive or thorough facial any before hospital injuries. However, Peter absconded from not document the extent of his injuries. continuing are to in assist his Peter enquiries, lawyers with HPLS a view to making an application for criminal victims’ compensation. of drug abuse, homelessness and imprisonment. He receives the Disability Support Pension. Over the last years, 11 Nathan has incurred nearly 100 civil and criminal fines totalling almost $40,000. vast Themajority of theinfringement fines relate to travelling on a train without a ticket. The criminal and drug possession. fines registration to motor vehicle offences relating include In the 2010, State Debt Recovery Office (SDRO) issued awarning of the possibility of a Property Seizure Order being made. obtaining a further series being enforcement of taken extensions to prevent HPLS succeeded in to due affairs, legal his manage to needed was time more as Nathan, against his intellectual impairment. the HPLS applied In for 2011, a full write-off of all of Nathan’s debts. The SDRO approved the write-off on two conditions: (1) that the debt would to the SDRO withinreferred the next were further fines if any be reinstated and (2) that Nathanyears, advise the SDRO if his financial, medical or five years. within the next five changed domestic circumstances disability intellectual his of extent The fines. more incurred since has Nathan that this is likely to keep happening. The principle of of life mean and way deterrence in issuing and enforcing fines has no impact on his behaviour. that believes HPLS in clear and extreme cases such as Nathan’s, the SDRO should exercise its discretion by not taking enforcement action on future fines, where it being paid. ever of the fines is no prospect disabilities, that there is clear from the client’s particular circumstances and 186 � Chapter X  Addressing Legal Needs of Homeless People in Sydney, Australia – The Homeless Persons’ Legal Service 179 individualclients.Ofthese: 31to 2011,December HPLSAdvocateprovidedrepresentationthe Solicitor court to services, legal accessing which are face not sufficiently addressed by people Legal Aid duty lawyers. homeless From 1 January 2010 barriers the of some overcome to in crucial often providingis useful legal services experience to clients who are Such homeless. The role washomeless. established are who people to providing assistance in legal experience and skills particular has Advocate Solicitor HPLS The all. for outcomes better of prospect the with treatment, seek to opportunity an many matters. By diverting homeless clients out of the justice system, HPLS is able to give homeless or at risk of homelessness to access legal representation in minor criminal are who people for contact of point dedicated a establish to is position Advocate spending HPLSSolicitor the of purpose The untreated.are offense their of causes underlying people vulnerable to the if community lead the to benefit no or little custody, often with in but time considerable can This reoffending. and offending experiencing homelessness, there is too often an entrenched cycle of mental illness, Foroffences. people criminal minor chargedwith and arehomeless who people for representationprovidecourt to Advocate Solicitor a employed Service the 2008, In The HPLSSolicitorAdvocate Forty-five percentindicatedthatthey hadpreviously beeninprison. dependency. Thirty-five percent disclosed that they drug/alcohol had both a mental illness and drug/alcohol or illness mental a either dependency. had they that said percent Sixty-nine Sixty percent disclosedthatthey haddrugoralcoholdependency. Forty-five percent disclosedthatthey hadamentalillness. with 24-hoursupportandmedical care. released, not back to the streets, but wasstraight into he long-term accommodation bond, behaviour good a received Jonathan when that problem. meant legal This short-term his just not situation, long-term his on an impact have would that together put was Jonathan for plan treatment a that ensure to provider treatment a with worked Advocate Solicitor HPLS The none ofhisunderlyingissueshadbeenaddressed. However,issues. illness mental his address systemto correctional the from divertedbeen mattershad his recenttimes, street.In the on wasback then and sentence jail short a received had he occasions many 2001.On since with wieldingaknifeinpublicplace,theninthsuchcharge onhisrecord charged was He increased. spirits methylated and alcohol of consumption custody.in His goods and conduct offensive language, offensive including offences, criminal of guilty found initially was He homeless. was Jonathan HPLS CaseStudy Addressing Legal Needs of Homeless People in Sydney, Australia – The Homeless Persons’ Legal Service  Chapter X � 187 works to identify and reform systemic issues affecting people who are currently currently are who people affecting issues systemic reform and identify to works Study HPLS Case Leanne was charged with resist police and possession of illicit substance. She was apprehended in Kings Cross (Sydney inner-city released her on suburb). bail, Police on condition that she not go within 1000 metres of Kings Cross station. railway She was subsequently arrested in Kings Cross again sharing needles, and was taken into An custody. application for bail conditions, same the with granted was bail and court, the before made was station. railway Cross of Kings metres within 1000 namely that she not go needed she as Leanne for difficulties considerable presented condition bail The clinic. methadone her and doctor her access to area Cross Kings the enter to The HPLS Solicitor Advocate made an application for variation of the bail conditions. were of HPLS lawyers the view that the reason for the original condition was to keep her out of the area in order to minimise disruption the risk of reoffending. than to reduce rather and annoyance Following the variation, Leanne was permitted to go into the Kings Cross 6pm. 9am and between area HPLS HPLS has been at the forefront of advocating for legislative recognition of human rights for homeless people, prohibition of discrimination prison exiting people on for options accommodation and the support basis improved and of history, criminal at risk of homelessness. who are HPLS HPLS has also been active in advocating for reform of the conditions of boarding houses in in Tenants NSW. boarding houses are often living in and poor have inadequate recourse conditions to argue for their rights as tenants. HPLS has been house for boarding regulation legislative for in stronger advocating involved heavily operators. HPLS has HPLS been in involved a number of significantreform law initiatives, including being actively involved in advocating for and advising on the reform of the fines enforcement system, to establish their a fines debts system waived where return in homeless for attending programmes. work participating in volunteer or by educational programmes people treatment drug programmes and can have HPLS or who are at risk of becoming homeless. The policy and law reform work of the is based of on the the human recognition rights of homeless, people HPLS who are impact directly that processes decision-making in involved be to right their including them. HPLS Policy and Law Reform work 188 � Chapter X  Addressing Legal Needs of Homeless People in Sydney, Australia – The Homeless Persons’ Legal Service father who subjected him to sexual and physical abuse. He lived on the street, worked step- from his escape to leaving home 14, he was when homeless first became Jamie the HomelessPersons’ Legal Service.Heisnowin his40s. Jamie (not his real name) is one of the HPLS consumer advisers and also a client of The workofHPLSinhumanterms-Jamie’s story being invited tomeetwithseniorpoliticiansandHousingDepartmentofficers. as well as forums, training and conferences at speak to approached regularly lawenforcementother officers. Street Membersapproached Careand of by arepolice when people homeless encountered by difficulties the they and homelessness, into prison problems to exiting of relation experiences authority,the Housing Government in State the with people encounter homeless with consultations undertaking in and law reform and policy advocacy. Street Care members have been actively involved debt, and credit law, and tenancy fines as such topics information legal skills, media presentation, public receivein trainingto membersCareStreet for arrangedHPLS has homeless people,butrather a mechanism toprovide adviceonhowbesttodo so. people. homeless with agencies and other groups seeking information about the best methods of areconsulting who Sydney people and surrounding regions. Street homeless Care members provide advice formerly to government and currently representative of the considerable diversity nine of experience among homeless people in of consists Care Street Such an advisorygroup ofhomelesspeoplehadnever homelessness. before beenestablishedin NSW. experiencing currently were or experienced had who people of entirely consisting group advisory an Care,StreetHPLS established mid-2008, In on CivilandPoliticalRights. to people affected the of 25 of Article in enshrined is affairs public right in participate fundamental The rights. because human with processes consistent decision-making is in it involved be should people homeless that as well as being an empowering opportunity for those who participate. HPLS believes issues homeless responseto in formed policy effectivemoredevelopment of the to central role in its law reform activity. It is a core principle of HPLS that this will lead HPLS work ofHPLS Involvement ofhomelessconsumeradvisersinthe law reform activity. has developed various mechanisms to involve homeless consumers in our policy and opinions and voices of homeless people are heard in our advocacy. To this end, HPLS lawand policy the Underlying reform work HPLSof ensureto commitment a is the believes it is essential that those that have experienced homelessness play a play homelessness experienced have that those that essential is it believes Importantly, the group is not a short-cut to hearing from hearing to short-cut a not is groupImportantly, the International Covenant International Addressing Legal Needs of Homeless People in Sydney, Australia – The Homeless Persons’ Legal Service  Chapter X � 189 He had an outstanding debt for unpaid rent to Housing NSW. He had an outstanding debt for unpaid rent Housing NSW regarded that, because he had been in prison, six months. stable accommodation for the previous he had been in Jamie’s story gives rise to a number of recognised human rights: the rights of the child to a safe and secure environment, the from physical, mental, rights emotional and of sexual abuse, the the right child of a to child in care be to protected special further from protection harm and abuse, the right to adequate housing, the right to adequate health and medical services, and services. seeks HPLS to the respond to homelessness and the legal issues right that confront to necessary social people experiencing homelessness, within a human rights framework. This means need the and crisis, housing and homelessness of causes underlying the confronting to advocate for the right of homeless people to have access to adequate housing, health care, social access security, to support services without discrimination, and seek which services of design the and development policy in participate to right the to assist them. Jamie’s story is an example of systemic failure at several levels –– from the inadequate the from –– levels several at failure systemic of example an is story Jamie’s response to his experiences response inadequate of an regime, childhood sentencing abuse, punitive excessive, the an failure care, state to in when provide protection him provide to inflexibility bureaucratic a and prison, from release upon needs his to adequate housing. with safe, secure, Jamie is currently back on the streets, sometimes in hostels. He has not resumed his resumed not has He hostels. in sometimes streets, the on back currently is Jamie methadone treatment. Through the thisThrough system, fine unpaid resulted enforcement fine inhaving Jamie his driving licence disqualified for non-payment. While driving his car onewas pulled nightover and he charged with driving while disqualified. Jamie has a criminal and history, has previously served time in prison and in juvenile detention. At last his released was He imprisonment. months eight to sentenced was he hearing court public his lost had He job. no had He months. eight full the serving after November listing because: housing unit and could not get further priority About 18 months ago, Jamie had finally secured stable accommodation from the State the from accommodation stable secured finally had Jamie ago, months 18 About after Government public being Housing housing on NSW, authority, and off priority hetime, that to up leading period the In years. three previous the for housing for lists rough, sleeping including options, accommodation different of number a on relied had accessing hostels and homelessness accommodation services for one or two nights at a time, and some periods in unlicensed boarding houses. He was in a methadone treatment program to address his substance abuse problems. He was also in a scheme. training Jamie also had an job- outstanding unpaid onfine the for train travelling HPLS. to present to problems legal common most the of one –– ticket valid a without as a sex and worker, was in and out of foster care and juvenile justice While institutions. he was in foster care he was further sexually assaulted. He was also sexually centre. training correctional in a juvenile assaulted physically assaulted and 190 � Chapter X  Addressing Legal Needs of Homeless People in Sydney, Australia – The Homeless Persons’ Legal Service References n c-curn dpesv smtm, usac aue and abuse, substance Child Development, 71,719-730. adolescents. homeless symptoms, and runaway among problems depressive conduct symptoms Depressive co-occurring (2000): W. Bao, and & D., Hoyt, L., Whitbeck, 1117-1128. 30: Neglect, & Abuse Youth.Child Urban and Rural Homeless among Victimization Street and Deviance, Away, Running on Abuse of Family Impact (2006): Yoder,K. and L., Whitbeck, D., Hoyt, L., Thrane, Ill?”, Australian JournalofSocialIssues,Autumn2011, at35. Mentally (2011):Homeless C. the Chamberlain, “Are and G. Johnson, 19-25. Mission, City Sydney Sydney. Inner in People Homeless Among Use Service Health and Disability Disorders, in Mental of Out PrevalenceSydney: and Down (1998): N., Buhrich, and M. Tesson, T.,Hodder, 2003, pp.1-2 Canberra, ABS, 2050.0, No. cat. Program, Analytic Census Australian Chamberlain, C and Mackenzie, D (2003), Counting the Homeless 2001, Legal Strategies chapter XI The Role of the University in Promoting Access to Legal Rights for People Living in Social Exclusion

The Experience from the “dret al Dret” Project

Antonio Madrid Coordinator of the “dret al Dret” project Faculty of Law, University of Barcelona

The role of the University in promoting Access to Legal Rights for People Living in Social Exclusion – The exEerience from the “dret al Dret” Project  Chapter XI � 193 Which rights are recognized and what is their structure? and what is their structure? recognized Which rights are Who is entitled to those rights? on the Which can or processes promote make their execution possible or, it? hinder or prevent may which contrary, l l l l l l It is to be noted that both “access to justice” and “access to legal rights” have been mentioned instead of focusing the debate around the access to legal rights The only. first is used to convey the fact that individuals may reduced be occupycannot itself justice different that Given law. the to respect with points starting to individual rights in the sense of claims subjective supported the by State, it is necessary to recognize that not second all The individuals (according to a law. variety the of criteria to respect with position same the occupy will later) discussed “Access to legal rights” is not a new subject (Cappelletti, 1984). The historical concerns around this topic relate to the people’s legal tension rights and between the lawful the exercise of recognition those rights. of Having rights being and able to exercise them is portrayed as an open debate present within legal-political the reality of the ideas of freedom and equity, as well as contemporary democratic and system the The rule on within research of access law. to the aspects: interrelated the study of three legal rights requires The expression “access to legal rights” uses the basic functional meaning of gaining of meaning functional basic the uses rights” legal to “access expression The access or entry to somewhere. This term was inspired by the image of British and “access” of idea The 1970s. the since development urban and architecture American to relates the concept of of freedom choice and usage which the people right have enforced. opportunity can be effectively so the principle of equal to exercise, In order to address the latter point (either from the generic perspective of to access legal rights or the double perspective of both having rights exercise them), it and is necessary to combine being different study approaches that facilitate able to is it addition, In effectiveness. corresponding their and rights existing of analysis the and, in this sense, the of the law important to bear in mind the interconnectedness access to legal rights must be understood at least from the of perspective the State and the individuals. The latter focuses on those individuals and social groups that enjoying and instruments the to access gaining in difficulties greatest the experience of their rights. for the effectiveness the conditions required I would like to clarify a few points regarding the concept of access to justice and of this chapter. approach to limit the subject and the analytical legal rights in order 194 � Chapter XI  The role of the University in promoting Access to Legal Rights for People Living in Social Exclusion – The exEerience from the “dret al Dret” Project occupy inthelegalcampandeffective exercise oftheirrights. may individuals that position the on impact an has is, that justice”; to “access rights of individuals. In the same way, the “access to legal rights” determines the recognized the of sense strict the in used is rights”, legal to “access expression, in the legal system would have little interest in making use of institutions that institutions of use making in interest little have would system legal the in up caught are who groups social disadvantaged that expect can one Therefore, met. be not still will expectations interestsand their groups,because and people having access to legal rights would have any transformative nor capacity perpetuate themselvesfor worse-offrights neither and scenario, second reproducethis inequality.In social mayexisting practice working included) institutional or general excluded the legally and is who determine (which rights recognized the however,inequality; social existing overcome to help can safeguards and rights object of special attention when these questions are addressed. Certainly, all legal exercise inequality,social the and lawbe the should of interdependence effectively The rights. their cannot simply or barriers encounter individuals some why of why the recognition of rights does not guarantee by itself their execution, and application of legal provisions. aspect the The second enable first aspect that requiresprocesses The institutional answering the the at unequal. question and law is existing the at rights both aims of exercise the and ground) new break to have will (someone itself by change won’t law the rights: recognized formally of exercise effective the achieve to how of question the of parts two are There structure andexercise ofthelaw.the on bearing a have that coexist power of spheres other State the the beyondof power that recognition the includes approach This 2003). (Boaventura, law State the with interact that regulations dynamic compelling create arena) arena, the market arena and the community arena (different from the productioncitizenship the arena, domestic private the of interaction the Thus, field. legal the shaping up end will that components multiple incorporate to room is there occupied by individuals within that field. If such a broad perspective is adopted, structurethe on beforefield legal the is of position which explain to attempting a bearing fields have arenas and relational which first establish must one sense, this In life. everyday to common fields relational and areas structural other of study the include to view) of point sociological a from least (at broadened be definite a have can impact on individuals’ exercise factors of recognized rights. The State law approach can economic and social cultural, that demonstrated been has it as insufficient, but correct is approach This mechanisms. resolution conflict of use the and justice of courts the of protection effective the around difficulties the on focus to tends rights legal to access to barriers the of study the why reason the is That resolution. conflict for mechanisms legal the different to and justice of courts the to access having as understood commonly is (Cappelletti, aspect second this on attention scholars their focused have Most justice” to “access recognized. of field the been in working already effective have the which for rights also those and of rights exercise their of recognition the for individuals and groups of struggle nowadays:alivethe much very still is that tension historical by(and rights legal a to entails access justice) of to issue access The extension, , 1983). The topic of “access to legal rights” legal to “access of topic The 1983). al., et The role of the University in promoting Access to Legal Rights for People Living in Social Exclusion – The exEerience from the “dret al Dret” Project  Chapter XI � 195 2007). It is at this level that one can observe a observe can one that level this at is It 2007). al., et The contemporary normalisation of the “exception” century. and twentieth the mid the expansion means that the subject of access to justice and areas” to legal rights has “no-law in of states the Welfare interventionist of era the since changed that include regulations the In legal context systems the (Capella, current 2007), of sectors impoverished most the of vulnerability and criminalisation the increase There 2007). and 2002 (Portilla, exceptionality of areas the affecting also society, the of one become has which apartheid, legal of sort a –– phenomenon new a is twenty-first early the of phenomena sociological and political legal, relevant most Rights century. are not only limited in Guantanamo legal Bay: systems Western gradually have limited rights, safeguards and access to rights, which means that we are living in a world that dichotomy replicates that the prevailed in “in-and-out” European and legal “friend-enemy” history. The enactment penal law of could be enemy considered as the clearest expression of this those are legal amendments that people’s reduce legal phenomenon. Most important, however, protections, which makes it possible for the State to act in an arbitrary manner action. collective the possibilities for and to restrict Having Having access to justice and to legal rights is often understood issue for as “experts”. Santos states (2007) that a the predominance of this technical technical for setback considerable a caused has decades last the during approach State and politics as the legislation of an increasing number of social interests has become does perspective endogenous This experts. legal qualified technically of object the might that issues economic and social cultural, the of many account into take not hamper or the prevent use of legal and mechanisms. representative At the same necessary is it Thus, problem. the of aspect political the masks and dilutes it time, justice to access the presents that one with perspective above the complement to and participation the to open process socio-political complex a as rights legal and creative mobilisation of a plurality of actors. This broadened perspective should help to overcome one of the limitations the of perception of the users of legal interventionist assistance services Welfare state: as passive receivers of State support instead of subjects of rights. A of complementary the technical and and State corrective model model should include, among its key objectives, the of their own lives. can be the protagonists they of people so that empowerment are alien to them or in exercising a number of legal rights and safeguards that do that safeguards and rights legal of number a exercising in or them to alien are not favour their interests. Under these circumstances, efforts are directed at the recognition and legal protection of certain social interests striving to achieve a (Santos status legal-political and changing the law. the law using tension between The barriers to the full exercise of recognized rights can be classified in four main 2004). related are They economic, groups: social, and cultural institutional (ICHRP, combinations. different can be found in so they levels at different hts Barriers to access to legal rig 196 � Chapter XI  The role of the University in promoting Access to Legal Rights for People Living in Social Exclusion – The exEerience from the “dret al Dret” Project by trying to adapt them to the person’s abilities; however,abilities; person’srequiredto the not aretheyto them adapt to trying by processes bureaucratic the ease can institutions official The organisation. social a of service legal the or offices lawyers’ whether services, professional private with associated those and rights, legal to access the mediate which institutions, official Two main groups of difficulties are found at institutional level: those associated with ground fortheabuseofpower over thoseinthelower ranks ofsociety. arbitraryof victims power.the excellentan is breedingIgnorancefear with together are situations vulnerablemore in those so of, advantage taken often are handicaps social and economic cultural, with People them. enforcing for means available the impact awarenesstheir also of and rights own their have can of people that knowledge levelof understanding the Cultural court). a or office legal a as to (such alien them is that institution an of premises the enter to have they when especially seem strange, but many people experience great mobility problems in urban may It services. contexts, legal access to mobility level of sufficient a havingwritten and expression, and oral in ability person’s a level, educational person’s a as such issues, cultural to related are that rights legal to access to barriers of number a are There and companionship for the effective exercise of rights. They also become advocates. become organisations social 2001).(Sarat, It needs is quite their common satisfy that, together and with intereststhe person’s their social defend groups of to reference,strategies different choose where only on very rare occasions something is gained through justice, will usually environmentan live in who is individuals Those rights. exercisingone’s for necessary person the accompany and support to base institutional an as well as social A rights andinputtingforward defencepleasandlegalchanges. their accessing in difficulties greatest the experience will needs greater with those factor, together with the this lack of a and rights-demanding perceived,culture, stronglyimpacts on are the fact status that and power of a terms making in of Differences change. possibility the in and professionals, its and system legal the in trust of lack a with combined often are factors above The people. some for challenge real a be can but people, many for skills basic considered are These appointments. keeping including personalskills and management station time police a at meetings attending application, an submit to how knowing languages, or language local the being able to fill in a questionnaire, clearly explaining a complex situation, speaking as such skills basic havesome to needs one rights, legal to haveaccess to order In quality specialisedresources. the length of time required by legal processes and have limited or no access to high- the legal system, often havemistrust problems in to new situations, have difficultylikely coping with are conscience/understanding), legal of lack a to (due problems with greater needs find it more difficult to recognise the legal dimension of know their own not mechanisms. This is do due to the combination of multiple usually factors. Firstly, existing the using sense) those people in difficulties more culturalexperience they same the at or and rights their social economic, an (in needs greater with People rights. to access inequitable the on impact an has inequality Income social groups that provide support, direction support, provide that groups social facto de The role of the University in promoting Access to Legal Rights for People Living in Social Exclusion – The exEerience from the “dret al Dret” Project  Chapter XI � 197 After a period of study and reflection, the project was designed based on the on based designed was project the reflection, and study of period a After 1 A extensive bibliography on Clinical Legal Education can be found in www.cleaweb.org/ You can also find also can You www.cleaweb.org/ in found be can Education Legal Clinical on bibliography extensive A legal clinics a list of different address in the same web above stated objectives and on the following guiding principles: stated objectives above 1. The experiences of Clinical Legal Education (Legal Clinics), so common reference a in as used British, were countries, European some in and American Latin American, point. “Dret al Dret” is a legal action project that started in the Faculty of Law at the University University the at Law of Faculty the in started that project action legal a is Dret” al “Dret name its takes Dret”, al “dret name, project’s The 2008). (Madrid, 2006 in Barcelona of from a play on it words: means both direct access to justice and having a right –– in the subjective sense –– to justice. This second meaning summarises the aim of the small group of professors that started this project: to improve the exercise defence of rights and of individuals and the groups living in social exclusion. The expression andlegal a from organised society democratic any in idea key a to refers Dret” al “dret to access effective grant to law: of rule the on based state a as perspective institutional the legal and that social make resources possible the of exercise rights. two are There other secondary objectives: how to students’ improve learning and legal training and should provide. that the University the public service how to strengthen project Learning from the “dret al Dret” Social organisations are an important resource of legal support and advice. Only a to barriers Institutional people. disadvantaged represent firms law private of minority happens This culture. legal weak a of advantage take and create rights legal accessing when a toughening of legal conditions takes public place, discourse of together danger with and risk a to public widespread security. When poor people do have not access to advocates and NGOs are not able to budget constraints, etc.), the work public authorities are with left unchallenged. Policies and lawyers (due to them. challenge to able is one no but rights, human violate fact, in might, measures “legal weak a sense, a in works, system legal the how of understanding an Without culture” among citizens and culture authorities safeguards culture themselves legal increases strong social a exclusion and contrary, the On rights. legal to access limits both in terms of the form and the content. As already stated, the problem we face today is that the legislation currently in force plays a part in shrinking the rights, and the institutional and safeguards of procedural those most vulnerable sectors of society. do so, and may strictly follow bureaucratic logic, which will make it a significantdifficult proportion for of the population to access justice. The of overcrowding making people from also discourage of resources scarcity the perceived services and legal claims and perpetuate distrust in the In system. addition, the staff working in these services might have a tendency to perceive users more like passive receivers of State than support subjects rather of legal rights or clients, as will be the case in firm. of a law the context 198 � Chapter XI  The role of the University in promoting Access to Legal Rights for People Living in Social Exclusion – The exEerience from the “dret al Dret” Project human rights and international law, children’s law, social law, real estate law and law estate law,real law, law,social law, children’s penal international and and rights criminal human as (such involved areas working different the of activity the stimulate and respect to was Thirdly, aim department. the specific a of project the as not and projectSecondly,project. faculty-wide the a for as conceivedwas it favouredfact organisationsother with contact increasedthe also and credibilitythe of the project were already active members of a number of social organisations. This The project employed different and successful strategies. First, the founding members group of participating teachers has been recognized as an innovative teaching group. teaching assistants from eight different departments are part of this project. this of part are departments different eight from assistants teaching lecturers,researcherstwentyand of total A University). the at tutor second a and tutor external an by supervised is project the in participating student (each tutors external their by introduced been had they which to firms law private in working who the legal services of the social organisations students where they did their placements, others of number in working a them of some professionals: young how now are project this in witnessed participated have we years, few last these over fact, In built. relationships collaborative the and outcomes resulting the progress, learning students’ of analysiscomparative the were evaluativecriteria selected The 3. 2. tangential mannerinthecurriculumofFaculty ofLaw.a in present been only had community,which the in working of idea abandoned researchprocesses.legal and social projectthe this into Thus, reintroduced old, the theorise to not order in addition, in practical dimension would not only contribute towards hands-on, improving the students’ sense, training; this reality.In same the of part are practice and theory both From the epistemological perspective, the project was based on the assumption that organisations. public the with relationships administration and University,the institutional personal relationships of its individual the teachers public with some both social of mind the contribution in the bearing and particular, add in organisations to necessary social felt of was It majority administration. vast the between established relationships collaborative the reality: social a to refers principle guiding first The and teachingassistants. the to related indirectly The most numerous nor group by professional categories were directly the group of lecturers, followed neither by researchers is project implementation ofEHEAandleastallwith thebureaucratic adoptionof the Bolognaprocess. this Nevertheless, (EHEA). Higher European Area the of Education phase implementation the with together came project this of up setting The rmtn te oilsto o kolde n mkn te nvriy more university the making and knowledge accessible. of socialisation the Promoting Understanding therelationships between theoretical andpractical knowledge. or limitsoftheiractions. local (public) administration works the to and identify these face, gaps people or to that explain reality the the reasons about knowledge and gaps detect to work Universitythe projectthreeagents: The has important provides NGOS expertise, in a vacuum, a in t a ncsay o o some do to necessary was it 2 3 The The role of the University in promoting Access to Legal Rights for People Living in Social Exclusion – The exEerience from the “dret al Dret” Project  Chapter XI � 199 Alter – Servicios Integrales de Associació , ProHabitatge This academic change represented an opportunity to put to opportunity an represented change academic This 4 This included a specific service for legal advice and mediation in 5 Those students who want to participate in this project will do their practicum either during one term or the whole Nevertheless, this academic year. has changed as a result of the introduction of the new graduate studies in in the Law, context of the convergence of Spanish university degrees in the EHEA. students can and subject take (6 one credits) elective to the curriculum According in of Law, the degree also choose to elaborate a final individual project on a topicrelated to the practicum (6 credits). This modification places the practicum in a preferential position in the official Masters, especially for those access to legal careers. that provide http://www.clinicajuridicaimmobiliaria.org/ 5. 4. The project faced academic and institutional resolved. On problems, the some one hand, of the the and curriculum them academic the in students difficultiesthe by still undertaken are work of amount centredthe not recognise around how to recognition of the work done by the teaching staff. The first questionwas solved by combining two practicum (internship experiences) so students can count more work. hands-on for hours residential residential mediation, women’s law or immigration for law, instance) as smoothly as possible. Last but not least, we tried –– within our and means strengthen the –– existing legal to services of complement the participating social organisations. A network model was adopted in organisations and the order services offered to students to by In the this University. sense, promote both the would that aspects those stimulate to was decision this behind logic underlying the activities of the met. were objectives as long as the pre-established join forces contribute to housing conflicts, such as conflicts betweenliving in and eviction the mortgage landlordssame building, people living in shared-property, and neighbours tenants, exclusion, housing and homelessness tackle to aims service This cases. repossession and it operates on the initiative of the teaching staff (who generously share their knowledge for the benefit of the project objectives), the students (who opted have for this interesting teaching and knowledge (who transfer help alternative), us the with volunteers their hands-on of experience) organisations such and as also thanks to the support Mediación as well as the collaboration of the Catalan Housing A Agency. total of problems rental to related them of most year, one in addressed been have cases 153 impossible seemed project this that believe to hard is It repossessions. mortgage and such a short time ago. It was a hard dream to First, follow. in the in Second, ClinHab. as such service a create to spite possible been has it reservations of the initial short-term it is not and possible resources to financial of reproduce the lack the experience are of reasons ClinHab main in The other legal Law. of Faculty the at clinics the risk of teaching staff burn out. In 2012, the Legal Clinic on Real Estate Law and was Housing created. Mediation (ClinHab) forward forward the creation of specialised legal clinics as a common working area for the preliminary The students. and professionals legal staff, teaching among cooperation model is based on the idea of maintaining the collaboration with professionals and the legal services of social organisations, as well as selecting cases for model of legal clinic. to the according representation their legal 200 � Chapter XI  The role of the University in promoting Access to Legal Rights for People Living in Social Exclusion – The exEerience from the “dret al Dret” Project for the faculties of law to relate to the legal conditions faced by the most deprived most the by faced conditions legal the to relate to law of faculties the for forwardway a represent could This in. live people that realities different the with up mixed are often that ser) (deber models prescriptive abstract the complements providecan respect,studies sociological empirical theoretical new a framework that exclusion.this of In situations throughthe researchof the components legal the of law:of faculties the including departments, pioneer of number a of countries other examplein the following rights of infringement exclusionand of situations the and university the between relationship a establish to possible be will it Nevertheless, awards.reasons. obvious for terrain, and this on compete contracts hardly can exclusion social potential in living in result public the can with signed which agreements authorities, future and current past, in origin their have tasks safeguard and promotion university’s the on self-restrictions the Sometimes, the overcome to is way only the maybeuniversity’s convenient façadeofneutrality. rights, to access improving in play part to wantsits really Law of Faculty the if that fact the illustrates it an case; not isolated is it hence organisations, social of experience the also is This grant. a for applied had we that us reminded who authorities public the from call a in resulted recommended changing the text of a local municipal ordinance. However,study the of different conclusion The this them. action of of one being Dret” experience al “dret with organisations, working the on based developed were projects analytical on civic behaviour was under discussion in the city of Barcelona, a number of legal ordinance local the When people”. black of full corridors the with up end so will we“Sure, commented, staff teaching the of member a immigrants, to assistance of opening up information points in the Faculty of Law for the legal orientation and complex issue. In the first stage of the project, during the discussion of the possibility role; however, their own sociological and institutional reality makes safeguarding this a take a to departments different much allow should university’sautonomymore A the centres ofpower, includingpoliticalpower. with generatingtensions means also it rights) legal and justice to access barriersto greatest the experience who (those disadvantaged most the for advocating when university,the especially by assumed be should commitments institutional of kind what out figure to difficult is it that, said Having commitment. of level same the or vision this share not do probably law of faculties the in working staff teaching the of most that responsibility.recognise this to However,up has take one should universitiesat law of faculties the that understandingmy is it and (Ferrajoli,1999) about the law and practising the law in a way that recognises the rights of the poor thinking of favour in personally am paper,I this of author the As how? be would for the most vulnerable sectors of society? If the answer is yes, the second question real world. the Should a and faculty of class law providein resources explained to and models position itself theoretical as an the advocate between distinction clear a From experience, we know that these questions have complex answers that establish pretendjust or sides take to neutralnecessary a is maintain It to whether? position. questions open and rights, of violations current consider denounce should law of faculty whether including to had We faces. project the that realities political and On the other hand, the institutional difficulties stem from the conflicting legal, social oil groups Social The role of the University in promoting Access to Legal Rights for People Living in Social Exclusion – The exEerience from the “dret al Dret” Project  Chapter XI � 201 This kind of project cannot be considered as neutral for two fundamental reasons: first,the false neutrality that usually comes to mind whenwe think about the role of justice does not exist; second, because this project is committed to defend the legal rights and the of exercise rights of those most in need. On the one hand, the results been have achieved remarkable, but on the other hand they also have been quite modest. The consolidation of a project of these also must characteristics we up-side, and the On start. scope rough a after is especially success, a –– itself in –– emphasise the of involvement both students and the academic staff, as well as the still we downside, the On organisations. social the by project the of reception warm have to figure out how to tackle professors’workload. excessive Also, itwould be important to promote the elaboration of studies and the design of mechanisms for contributing is, that aims, project’s the pursue to order In knowledge. of transfer the towards improving access to legal rights undertook a combination and of different improving activities: workshops, students’ practicums, seminars, training, courses, we publications of guidances, research studies, radio and groups the programmes, setting up of a for centre housing advice working and mediation. residential As a concluding remark, this is just a small of example law, a of number how, from of the critical working of development synergies faculties the be coherent should purpose final with The generated. the be can institution core objectives of the consciousness about social reality and injustice in its many engagement of forms, students, and professionals and also institutions exclusion. the to social in living work individuals toward those of improving rights legal the to and justice to access individuals individuals and communities in their daily lives: Exclusion”. a so-called “Sociology of Legal 202 � Chapter XI  The role of the University in promoting Access to Legal Rights for People Living in Social Exclusion – The exEerience from the “dret al Dret” Project References en EstadosUnidos,Bogotá:Unibiblos,p.217-266. en García, M. (2001): Sociología jurídica. Teoría y sociología del derecho pobreslos de vivenjurídica social”, que conciencia asistencia la la y de Sarat, A. (2001): El derecho está en todas partes: el poder, la resistencia abajo. Hacia una legalidad cosmopolita. Barcelona: Anthropos Editorial. Santos, B. y Rodríguez, CA. (2007): El derecho y la globalización desde de Brouwer: Bilbao,p.297-374. la ciencia, el derecho y la política en la transición paradigmàtica. Desclée común: nuevoParasentido un experiencia. la de desperdicio el Contra del sentido común”, en Santos, B. (2003): Crítica de la razón indolente. poder,y derechodel produccióndel de “Losmodos (2003): B. Santos, 2001», Revistade mientras tanto,n.83,2002,p.77-91.septiembre 11de nopersonas: de atentado las el tras contra ‘enemigo’ del lucha legal represión de legislación «La (2002): G. Portilla, y elrelativismo postmodernista.Valencia: tirant loblanch. Portilla, G. (2007): El Derecho Penal entre el cosmopolitismo universalista 31-56. 2010,26, págs. n. Derecho, del Filosofía de Anuario Dret”. al “dret de Madrid, A. (2010): El acceso a los derechos: La experiencia del proyecto serveii responsabilitat social de Aprenentatge les Universitats, Barcelona: M.(2008): Octaedro, p. 93-111.en Martínez, comunitari” reflexió i Madrid, A. (2008): “El projecte dret al Dret: un plantejament d’actuació Madrid. Trotta,débil, más del ley La garantías. y Derechos (1999): L. Ferrajoli, Paris: État-Providence, et Justice Economia. la a Accès (1984): M. Cappelletti, abogados delDepartamentojudicialdelaPlata. mundial para la efectividad de los derechos. Informe general: Colegio de Movimiento justicia. la a acceso El (1983): B. Garth, y M. Cappelletti, Capella, JR.(2007): Entrada enlabarbarie.Madrid:Trotta. Legal Strategies chapter XII Ombuds Offices and NGO’s: Defending the Rights of Homeless People

Quim Arrufat Ibañez BA in Political Science and Public Administration Autonomous University of Barcelona

Guillem Fernàndez Evangelista Associació ProHabitatge Government and Public Policy Institute (IGOP) Autonomous University of Barcelona

Ombuds Offices and NGO’s: Defending the Rights of Homeless People  Chapter XII � 205 At the European Union level, the Charter of Fundamental Rights itself established, in Article 41, the right to a good administration, mainly focused of on the the defence impartiality of the EU institutions vis-à-vis persons. citizens The and precise natural formula and of legal good administration can instruments, such as ethical be codes, service codes charters, of and good governance based upon several advisory by reports instance, for or, mechanisms participation citizen practices, good 2009). bodies (Ponce, The concept of good administration is gaining importance in public management. It is directly related to the increasing penetration of Public into Law this area as an instrument that enables a means of assessing the quality of public The management. right to good administration becomes a guide making and, as such, it is an instrument for for ombudsmen as monitors of the public public officials’ decision- administration. The concept of good to while public as the administrations, the former exclusively is governance, related administration differs from public involving networks, of existence the of that recognition the in origins its has latter of good 2007). made (Ponce, public decisions are where actors, and private The concept of good administration ices and the role of ombudsmen/off Regarding Regarding the fight for the rightsespecially interesting institution. homeless of An ombudsman can people,act on behalf of a homeless the ombuds-office is an person on the basis of an party. official The aim complain of such or complaints an application can embrace the insufficient capacity by a of shelters (which forces some wide interested an people to sleep range rough), to of themes: from reintegration problems of a group of people who have been evicted from a certain area, to specific shelter services in the winter undertakenby public authorities, to of social housing. of the supply and demand the analysis The development of citizen’s of rights a The in state development the meant framework to guarantee them has called attention to the people, right homeless as such groups, vulnerable most the of Nevertheless, administration. the population as a whole to a responsible for to undertake legal action against the institution often find it difficult good to defend) their rights. failure the violation of (or the 206 � Chapter XII  Ombuds Offices and NGO’s: Defending the Rights of Homeless People h amnsrto t itree dqaey hn edd wih ocs women forces which needed, when adequately intervene for to tools and administration resources the of lack the noted Ombudsman the violence”, or neglect individuals easier access to public services. In cases of “minors suffering from severe those grants Ombudsman the of intervention the camps”, in living families Roma of “childrenFor risk. of situation in minors as protection public with them provide to immigrantsand illegal like treatingwasthem stop recommendedit to situation”, resolve procedures other to than arrest by measuresthe police. For children different “in children”,an irregular“street administrative and for instance, For childrensituation. their homeless of typology a established Ombudsman Children’s Greek The Child. the of Rights the on Covenant UN of the 27 Article from and itself Constitution Greek the of 21.4 Article from deriving relevant the to duties the emphasising advice recommendations precise homeless wrote Ombudsman the children, giving of typologies of the aim describing Beyond 2010). the (Moschos, administrations with rights, children’s of violations an Ombudsman, the Children’s by institution belonging to investigations the so-called recent “Greek Ombudsman”, find in charge can of investigating we Greece, In central, regional andlocal. administration: the of level each at ombudsman an find authority.to Moreover,possible appellate is it universal potentially a it makes which free, for service public citizens advise to appeal must (if possible) ombudsman before the the courts. administrations, Generally,the byombudsmen provide unlawfulviolation their rights of of case or action in Consequently, courts. law ordinary of functions the replace cannot ombudsman the Nevertheless, made. already decisions of reconsideration the administrations,or legislation, or the compensation restitution,improvement, for actions to involving recommendations or advice analysis) and research (after monitor the behaviour of the administration itself. Its functions are limited to issuing The ombudsman is an office designated by the State or the relevant administration to Some examplesfromEUMemberstates The ombudsman’sframeworkoraction: Court ofJusticeandtheFirst Instanceactingintheirjudicialrole”. the exceptionof the with bodies, or institutions Community the of activities the in maladministration of cases Union the of Ombudsman the to refer to right the has any natural or legal person residing or having its registered office in a Member State European Ombudsman and establishes her functions: “Any citizen of the Union and The Charter of Fundamental Rights of the European Union (Article 43) empowers the in thequalityofpublicmanagement. concept of good administration, as well as in the enhancement of citizen rights and rights. Secondly, ombudsmen have a crucial role in the constant improvement of the of function ombudsmen lays main in The the control assuming. of the increasinglyadministration and arethe defence of ombudsmen fundamental institutions, other These instruments need someone to enforce them, and this is the task that, among the Ombudsman recommended Ombudsman the Ombuds Offices and NGO’s: Defending the Rights of Homeless People  Chapter XII � 207 transeúntes [“transients”]). For that purpose, the More More than 20 years later, in April 2012, the Ombudsman exposed, in report in an the Congress annual of Deputies, that the number of homeless people in Spain was estimated at between 30,000 and 50,000 people, and proposed that they housing provided from the be stock of vacant social housing, which, according to the 2012). (DP, units housing of thousands of hundreds to amount could Ombudsman, Autonomous Communities (the governments of Spanish regions) were asked for information regarding available resources (especially shelters), and there evaluation of the provided coverage through was those resources, and an of the existence (Múgica, 2009). assistance the provided at improving aimed projects of practical In Spain, the Ombudsman office has intervened several times for issuesrelated to decent and adequate housing, not only invoking the other constitutional right requirements such to as Article housing, 9.2 of but the Spanish Constitution, also which establishes that “It is the responsibility of the public authorities to promote conditions ensuring that freedom and equality of individuals and of the groups to which they belong are real and effective […]”; Article 10.1, which states that the of foundation the are inherent are which rights inviolable the person, the of dignity political order and social peace; or Article 39.1, which establishes that “the public 1987 When family”. the of protection legal and economic social, ensure authorities was declared “International Year for the Homeless” Ombudsman by decided to the write a United report on the Nations, situation of the homeless people (back then, more commonly known as Action by ombudsmen can be even bolder, as in the case of the Albanian Ombudsman, Albanian the of case the in as bolder, even be can ombudsmen by Action who undertook a symbolic action consisting of sheltering Roma 51 people, 25 a from them of prevent to Tirana, city, capital the in offices own her in children, them “possible death” from exposure during a cold spell in These February 2012. people had become homeless after being evicted twice from a property camped where they with had tents. The Albanian Ombudsman, insisted later Labour that to a the solution had Minister to be of sought for homeless people in extreme weather situations like the cold spell of last winter. In 2009, the Irish Ombudsman also ascertained that homeless people and homeless and people homeless that ascertained also Ombudsman Irish the 2009, In children had serious problems with access to basic state benefits, and, processing several claims, started an investigation. In her conclusions, the Irish Ombudsman ascertained that social workers had the severe of Office The problems 2009). (OCO, lists waiting findinglong the of because suitablechildren, homeless housing for children homeless from complaints and applications received even Ombudsman Irish Executive). Service (Health services social through shelter finding problems had who In 2012, the Office presented thereportTruths. “Homeless Children’s Experiences of Homelessness in Ireland”, which perspectives. The highlighted intent of the report the was to inform the children’s decision-making of those experiences and working at both a policy and practice level to develop (OCO, 2012). and accommodation care and emergency requiring supports for children improve services and and minors to continue living with their aggressors for fear of becoming homeless 2010). (Moschos, 208 � Chapter XII  Ombuds Offices and NGO’s: Defending the Rights of Homeless People 2010 in the municipality of In Cornellà, the people. local Ombudsman homeless wrote a helping report organisations on the social right by made claims by sparked actions activity,involveslevelof growing sometimes a which showing are ombudsmen local entities social helping those of people cooperation (SG, 2005).the In as the wellCatalan case, as it should homeless, also the be emphasised for that policies and policies, awareness-raising of the population; reinforcing the links between labour and housing an of creation the observatory regulations;on homelessness-related problems; and increasing the budgetary legislation provisions for existing the of harmonisation a and report were related to the need for an improved coordination Persons,between the administrations, of Catalonia. recommendations and conclusions in main The “Homelessness organisations”. administrations, report the wrote Ombudsman Catalan The a more comprehensive understanding ofthisproblem. improvedand coordinationan for and people, homeless to assistance provisionfor Just like the Andalusian Ombudsman, the Ararteko report is calling for better budget 2006). (Ararteko, contradiction in often infrastructures, social of management the framework, from local coexistence ordinances to the regulation of social services and leadership. clear This institution a has for requested and a policies comprehensiveconsistent for harmonisation calls of the ombudsman legislativethe consequence, In fromresponsibilitiesassuming involvedcases, most in that, conflict. jurisdictional a administration confusion is too often used as an excuse to exonerate administrations inter- that concluded research the as administration, each of responsibilities the of of clarification the list concerns point a main Its includes changes. legislative for also recommendations report) (Ararteko’s report Ombuds’ Basque The Country. Basque the of institutions local and regional the to recommendations issuing and and, groups social vulnerable most the consequently,autonomyexemplary an assumed investigationsinitiating of terms in on research to priority give to resolvedwho Ombudsman, Basque the from came report the for motivation and material the report, Andalusian the Country.to Basque Contrary the in people homeless of administrativesituation and legal social, the on report long a wrote also (Ararteko) Ombudsman Basque The (DPA,2006). areaclarify this in intervention public to of map the and duplicities prevent to helps which local institutions, with social partnershipand councils in homelessness, on observatory an creating and budget; a have to need the place: specific regional legislation (in the autonomous community), as prominentwell as a dedicated a enjoyed recommendations the of Some situations. homelessness these of resolution the in part) take should (or part and take in-depth an that administrations as and institutions, well regulations, laws, as the of problem, analysis transversal this of diagnosis detailed a showed itself, A report by the Andalusian Ombudsman, commissioned by the regional government recommendations totherelevant administrations. reports,final Ombudsman’s the the endorsesincluding to also contributes that and and role advisory general a country,with the of organisations social main the by formed council, social a has Greuges) de (Síndic Ombudsman Catalan the fact, In most complaints and reports related to homeless people are routed through NGO’s. related social services, and housing policies. Remarkably, all of them emphasise that the people, homeless of situation the on reported havealso that ombudsmen local and communities) autonomous the (from regional are there Spain in addition, In Ombuds Offices and NGO’s: Defending the Rights of Homeless People  Chapter XII � 209 Ombudsmen are institutions empowered by the administration itself to provide their provide to itself administration the by empowered institutions are Ombudsmen services for free. They are the guardians of the consistency of public policies and administrations. they Consequently, become advocates and attorneys on behalf of the people vis-à-vis the administration. In the early giventwenty-first century, the wide range of sectors and issues currently included as public policies, ombudsmen situation the to related issues including areas, social many to tasks their channel can However, policies. public related existing) not (or existing the and people homeless of recommendations. their follow to councils force to power legal no have ombudsmen Conclusions Finally, Finally, it is important to role note a played that also has in Ombudsman the a policies, homelessness country and housing like regarding Finland, as a true reference in the set up of a national strategy to reduce long-term homelessness (2008-2011). of illegality the to attention drew Ombudsman parliamentary the occasions, two On denying the individual right to decent housing, which is often replaced by shelters marginalisation, of situation a in applicants keep that solutions housing temporary or without providing them with the resources needed to improve a their sustainable situation The way. in Finish Ombudsman even investigated a claim by a family that was denied Roma the right to apply for housing, which violated their right to such for excuse The housing. social to access in equality to and non-discrimination denial of rights that felt was the that local this mayor family cause in would unrest the neighbourhood. In England, an official constitute investigationenforcement research Ombudsman’s of the was legislation of results related The started to assistance 2011). for (LOG, level homeless analyse to administrative people systematically at the the local a complete guide for reviewing and improving municipal policies of assistance to homeless people. The point of departure lies in the the assumption due that responsibility the by local lack governments of can have, as a consequence, serious errors in: the of prevention homelessness; the duty to undertake consultations (to analyse the real level of risk faced by applications; and the applicants); provision of short-term the accommodation. The study design made by and evaluation of the Ombudsman (and the ensuing recommendations to town councils) is of on four the an cases municipal in-depth of administration analysis negligence by based with serious consequences for the claimants, whose situation by an was worsened inappropriate response by the administration. It is precisely thanks to such claims by affected people that the Ombudsman decided to analyse the and its enforcement in legal practice, and this prepared guide of good framework administration for of actual or potential homelessness. municipalities and their management of cases to housing. Among other measures, the local Ombudsman demanded that regulations regulations that demanded Ombudsman local the measures, other Among housing. to were set up to grant priority access to targeted specifically plan a demanded and home, a of loss their from social derived situation housing to people in an emergency (SGC, 2010). people to assist roofless 210 � Chapter XII  Ombuds Offices and NGO’s: Defending the Rights of Homeless People collaboration with ombudsmen is a useful tool for NGOs and an important way Consequently,important forward forimprovingan thesituationofhelplesshomelesspersons. and rights. NGOs for citizen’s tool useful and a is ombudsmen policies with collaboration those between consistency the on studies and recommendations their with policy influence should and can they but policy-makers, not are Ombudsmen ombudsmen. the byanalysed be can approach that so ombudsmen to policies public consistent a violations undermining action administrativeirregular rights of cases all of cases their take people homeless of to complaints ombudsmen. So it is all the more important that the make NGOs working daily on behalf groups vulnerable few Unfortunately, citizens. by claims by driven are administration the by government good monitoring institutions These Ombuds Offices and NGO’s: Defending the Rights of Homeless People  Chapter XII � 211 Ararteko (2006): Respuesta a las necesidades básicas de las personas sin sin personas las de básicas necesidades las a Respuesta (2006): Ararteko hogar de Informe y la extraordinario en institución grave. exclusión del Vasco. al Parlamento Ararteko DP (2012): Informe anual y 2011 debates Pueblo España. Defensor del en las Cortes Generales. la situación de las (2006): Vivir en la calle. Informe Especial sobre DPA del Pueblo Andaluz. en Andalucía. Defensor sin techo personas Helenelund, J. (2008): “The individual right to In housing “The in Right Finland”. to Housing: The Way Forward”. Autumn. FEANTSA. Homeless in Europe LOG (2011): “Homelessness: How councils homeless people. learning Report: Focus the can lessons from complaints”. ensure justice for Local Government Ombudsman. Commission for Local Administration in England. “Homelessness people and among young children Moschos, G. (2010): in Greece – Interventions of Changing the (2010): Faces: Homelessness Greek Among Children, Ombudsman” Families and in FEANTSA. FEANTSA 2010. Autum Homeless in Europe People” Young personas las de derechos los y Pueblo del Defensor “El (2009): E. Múgica, Nº174. Mayo, debate. el para Temas hogar. sin personas Las hogar”. sin OCO (2009): “Homelessness and children needing crisis intervention” Office. Ombudsman for Children’s Annual Report. OCO (2012): Office. for Children’s Ombudsman “Homelessness Homelessness in Ireland”. Truths. Children’s Ponce, Experiences J. (2007): Escola “Dret, Catalunya, a of administració bona bona i Governança administració (2007): A. Cerrillo, i bona governança” en Catalunya. Pública de d’Administració Ponce, J. (2009): “Quality of Decision-Making in Right Public to Law. the in and Law European in Care Due of Duty and Administration Good Otoño 2009, pp. 1141-1187. of Public Law, Review European US Law”, administracions, Persones, Catalunya: a llar sense fenomen “El (2005): SG de Catalunya. entitats” Síndic de Greuges Cornellà a l’Habitatge a Dret el sobre Extraordinari “Informe (2010): SGC Cornellà. de Síndic de Greuges Informe 2010. de Llobregat”. References 212 � Chapter XII  Ombuds Offices and NGO’s: Defending the Rights of Homeless People Legal Strategies chapter XIII The City is for All from the “Human Rights-Based” Perspective

Balint Misetics The City is for All (Budapest) Lecturer, College for Advanced Studies in Social Theory (Budapest)

The City is for All from the “Human Rights-Based” Perspective  Chapter XIII � 215 The group The group 1 together with those directly affected, on their . behalf Since the beginning, most of the group’s members For more information, see http://avarosmindenkie.blog.hu/tags/english more For The group understands homelessness everyone who lacks as secure housing; nonetheless, its a focus is clearly broad on the most phenomenon vulnerable. emphasise We the equality of our that members and try hard not to includes allow the power inequalities within society between homeless and non-homeless people, be to women and men white, and Roma non-educated, and educated poor, and rich as reflective as be to try we activities, our Throughout group. our within reproduced and discussions our in evolve might that tendencies exclusionary any about possible day-to-day operation. Non-homeless members (or “allies”, which is the preferred The most vulnerable The group is involved in homeless to a advice legal wide free range providing and of education research, activities participatory from through lobbying and advocacy, people, to direct action and civil disobedience. Its activities are organized through weekly meetings and three major working space public groups to access that and criminalisation correspond rights, housing to action: of the areas main three group’s and in advocacy the of area homeless services. though Even human rights only are demands, and activity its shape to using is All for is City The frameworks the of one the group’s activities, our understanding of homelessness and by well within the as fit “Human it Rights-Based is Approach” elaborated how overcome it should be and Housing Rights Watch. FEANTSA has been at the forefront of the resistance against of poverty and the homelessness in increasing The Hungary. group criminalisation was founded in the summer of 2009. In part inspired by a Bronx-based community Homeless”, organization it “Picture was initiated the by non-homeless activists with a history of organizing about concerned genuinely those that thought who homelessness, of issues around poverty and social exclusion should work and not only have been homeless or formerly homeless in self-built cabins residing and in in single-room shelters, squatting, staying rough, people –– including people sleeping occupancy accommodation. 1. The City is for All is a Hungarian for adequate housing working for all equal and and a just more society. grass roots activist group based in Budapest, 216 � Chapter XIII  The City is for All from the “Human Rights-Based” Perspective of human rights. human of issue an as housing redefining by and evictions, of fairness the or homelessness to response a as shelters of adequacy the questioning by tendencies these challenge to attempts group the problems, social depoliticising of effect the have responses policy dominant the Whereas exists. that housing public of amount small the of to housing, the lack of an extensive system of social housing, or the underutilisation social inequality, the lack of affordable housing, the absence of an enforceable right in winter. The group instead emphasises the root causes of of homelessness: large, dormitory-style shelters,poverty street social work and and further emergency measures such as the dominant government public policy response which essentially consists The City is for All Focus onrootcauses with fewer skills. those and newcomers the of abilities such of development the facilitating as time same the at abilities their utilise to talented more the and experienced the allowing between balance delicate a ensure to is goal The tasks. of delegation the to applies attitude self-reflective same The decisions. strategic over power veto effective an has member every and voting, majority with decided is Nothing making. decision democratic of process a as voting over deliberation emphasises group the counts, from the use of foreign or complicated words. To make sure that everyone’s opinion discouraged strongly are members educated More others. of marginalisation the to in general are encouraged to be reflective on how they can inadvertently contribute members self-confident more experienced, more the and men, group), the in term 2. vote andprovided usefulinformationabouttheballot. to people encouragedhomeless campaign that elections recentparliamentary most before the our as well as activities group’s the of most of nature inclusionary the the group on the empowerment of people experiencing homelessness. This includes living in poverty and deprived of adequate housing. Thus, special emphasis is put by the inadequacies of social provision is the effective disenfranchisement of the and people housing social of lack the homelessness, of causes root the level, another On of homelessnessserviceprovision andtoargue foregalitarianhousingpolicy. housing the addressed have activists subcommittee of All the Hungarian parliament Forseveral times to is explain the inadequacies City The solutions. real propose and causes root its with engage engage they whether theyand homelessness of issue how the with see to elections, municipal and parliamentary recent most the in party) racist wing, far-right a of exception explicit the (with relevantparties the depoliticizing effectof socialpolicies,seee.g.Fraser, 1989. to the responseson Lyon-Callo(2004), adequate and (1989) and Slayton and of, Hoch (2007), causes Sahlin Volkerand true see homelessness, the from attention distracting in shelters of roles the On 2 is a fierce critique of false and superficial solutions to homelessness, For example, the group evaluated the election platforms of all of platforms election the evaluated group the example, For The City is for All from the “Human Rights-Based” Perspective  Chapter XIII � 217 emberi jog”, which ő The Homeless very rights. essence of their The and City dignity is for their All reclaim is the to empowerment able of housing them poor make and to people homeless members play a dominant role in setting the strategies and goals of the group as well as in its daily operation and in representing the group. Our understanding is people homeless recognition: and distribution both of issue an is homelessness that face exclusion not only from decent housing, from the formal from labour public services, market, but also or exclusion from citizenship, when understood in the possible broadest sense of the term. This –– exclusion moral which manifests itself in the “everyday politics of discriminations instantiated (Charlesworth, 2005, in 300) and in glances a stigmatising and and dehumanising discourse stances” that homeless of deprivation material the reinforces –– poverty their for poor the blames people by legitimising it in the eyes of the rest of the society. This all-pervasive Empowerment An enforceable right to housing is one of the most frequent political demands of should of how a just society understanding an overarching Furthermore, the group. ensure fundamental human rights and essential and human functioning releases to is everyone press statements, various In activities. our throughout cultivated actively homelessness), on strategy draft government’s the of evaluation the in (or speeches the group emphasises that it is a prime duty of the state to ensure citizens that all have of fair its access to adequate housing, and that reduced homelessness by cannot relying be solely on emergency measures, and charitable initiatives. or workshops teach-ins in several organised group which The participants discussed the meaning of social rights obligations in Hungary’s and general, review, and judicial of cases right relevant to provisions, constitutional housing in particular, including and France in developments legislative progressive as well as law international under of such rights. the United Kingdom about the enforceability translates into “Housing is a fundamental human right”. Whereas the access to public to access the Whereas right”. human fundamental a is “Housing into translates spaces in the dominant is discourse aesthetics often or as framed an issue of order, the “adequate” use of these spaces (Misetics, the 2010), group stresses the to right equal access to public spaces for everyone. For example, are increasing the the frequency of local their attempts authorities to demolish informal settlements of homeless people (self-built wooden buildings in mostly forested areas of Budapest and other cities). The local authorities also fail to respect the procedures for these evictions, and do not serve people with notice prior to the eviction/destruction of their homes, fail to follow legal and procedure also fail to accommodation. provide that and everyone, to applies process due to right the that argued All For is City The the rights of all their citizens. respect the authorities should The City is for All uses an explicit human rights demands framework both for in access the group’s to adequate housing campaign. for The all motto and of in the our group anti-criminalisation is “A lakhatás alapvet hts-holders and duty-bearers Rights-holders 218 � Chapter XIII  The City is for All from the “Human Rights-Based” Perspective rcniin o ra eaiain oil hne ih epc t hmlsns and homelessness to housing. respect with change social egalitarian real for precondition a as well as itself in goal essential (Fraser,an rest” 2000:103)is the with par a on participating of capable society of member full a “as people homeless establishing as that achievementis conviction an Our struggle. important this through as obtained gains least material possible at any be to held is justice of social source for the in crucial struggle participating a from comes is that groupdignity and the self-esteem The of empowerment. activities the throughout cultivated is that Therefore, a political and sociological understanding of poverty and social exclusion of self-esteemandself-depreciation (Bourdieu, 2000). lack to leads which it, to subjected bythose internalised often is symbolicviolence 3. ergtd oa eteet wt sbtnad oecodd osn o green or housing overcrowdedorganisations concernedaboutenvironmental justiceandenergy poverty, etc.). substandard, with settlements Roma segregated deprivation (e.g. the case of large residential institutions for people with disabilities, housing of form organisationssome representingexperience that variousminorities All for is City The people. gay,transgender lesbian, and of bisexual equality the for march “Pride” annual the and oppressed groups, an important example of which is the group’s participation in The group is also actively cultivating a sense of community with other marginalised status ascitizensofequalstandingby speakingupagainstinjustice. poor homeless the of image cultivated by patronising charity and mainstream the social work and as homeless people discourse reclaiming their public of tendencies respect, andFeldman, 2004foranapplication ofallthistohomelessness. and recognition of politics the and povertybetween relationship the on 2008 Lister,and also 2002 See 3 ohn es i a efcie n oneviig oh h dehumanising the both countervailing in effective as is else Nothing a be as te rmtr f bodr line of alliance broader a of promoter the also been has The City is for All from the “Human Rights-Based” Perspective  Chapter XIII � 219 Bourdieu, P. (2000): Bourdieu, Symbolic P. violence and and political struggles. In. pp. 164-205. Press. University Meditations. Stanford Pascalian Busch-Geertsema, V. and Sahlin, I. (2007): The role temporary accommodation. of European Journal hostels of and Homelessness 1: 67- 93. Charlesworth, S. Journal of the phenomenological experience J. investigation of inequality. (2005): 15: 296–312. Social Psychology of Community & Applied Understanding social ban. suffering. sovereign the and recognition Redistribution, (2004): LC. Feldman, A In. Citizens Without Shelter. Homelessness, and Democracy, Political pp. 82-109. Press. University Cornell Ithaca and London: Exclusion. Fraser, N. (1989): interpretation. In. Women, Unruly Practices. welfare, Power, Discourse and Gender and in Contemporary Social University Theory. of Minnesota Press. the pp. 144- politics 160. of need 103-120. 3: Review Left New recognition. Rethinking (2000): N. Fraser, R. (1989): New Homeless and Old. Community Hoch, C. and Slayton, Press. University Hotel. Philadelphia: Temple and the Skid Row people Involving respect. and recognition of politics A (2002): R. Lister, with experience of poverty in decision-making that affects their lives. and Society 1(1): 37-46. Social Policy justice. social for challenge The voice. and Recognition (2008): R. Lister, societies. diverse in fairness Seeking Policy: Public and Justice Social In. The Bristol: Gordonn. David and Burchardt, Tania Craig, Gary by Edited 105-122. pp. Press. Policy (2004): Lyon-Callo, V. Poverty Inequality, and Neoliberal Governance: Peterborough: Industry. Sheltering Homeless the in Ethnography Activist Broadview. Misetics, B. (2010): The Significance of Journal of European Homelessness Exclusionary of The Hungary. Example Measures: Discourse and 4: 231-246. References 220 � Chapter XIII  The City is for All from the “Human Rights-Based” Perspective Legal Strategies chapter XIV Social Organisations, Legal Services and Strategic Litigation: Fighting against Homelessness from a Rights-Based Approach

Guillem Fernàndez Evangelista Associació ProHabitatge Government and Public Policy Institute (IGOP) Autonomous University of Barcelona

Antonio Madrid Perez Coordinator of the ‘dret al Dret’ project Faculty of Law University of Barcelona

Social Organisations, Legal Services and Strategic Litigation: Fighting against Homelessness from a Rights-Based Approach  Chapter XIV � 223 Social organisations are, in many cases, the first channelavailable for peopleor who NGOs of participation Consequently, rights. their exercise to excluded socially are policies public of evaluation and development setting, the in organisations non-profit at different levels (international, regional, and local) is an indispensable element. NGOs the or to work situation to resolve experienced improve socially by excluded assist those this end, they To at risk of social exclusion). (or those who are persons people mainly through social work, educational activities, and, to a lesser extent, legal services. Nevertheless, such instruments alone do not have the potential to significantly change the collective situation. Consequently, strategic litigation is a key instrument from a human rights-based approach. If providers of we legal look counsel for and legal the organising legal associations bar precise services providers: service for of kinds main the four to point most results vulnerable groups, the counsel services, law offices providing this kind of service, organisations. publicsocial and services, administrations specialised some up setting ones) local (especially Some organisations work at the international and level others at the national level, while the smallest entities focus on providing services to the members of in a community, a local given neighbourhood, or on tackling targeted problems. There is a huge variety of organisational realities: some organisations will focus on strategic litigation, while others devote their effort to everyday problems, or work at levels. both Social organisations and legal services This paper is structured in two parts. The faced social problems by NGOs legal when try assistance they to to provide people first tries to shed some lightin on the situations of social exclusion. The focus will not be on the individuals’ to access such assistance, but rather on the organisational perspective. For this purpose, we outline the results of a NGOs study carried out on in Barcelona. the present We two legal examples: the assistance experience of services the French network Jurislogement of as an example of good 24 practices for social NGOs social to and restrictions to barriers an of the overcome such provision services; and Shelter, organisation in England, an example of good practices in terms vis-à-vis of the administration and independence professionalisation of the service. The second part of this paper is devoted to the possibilities of strategic litigation of the –– United either Nations in at the an framework international level by providers NGO service or of the Council of Europe –– as an instrument for social transformation through struggle in the legal sphere. 224 � Chapter XIV  Social Organisations, Legal Services and Strategic Litigation: Fighting against Homelessness from a Rights-Based Approach time to these tasks was that of paid recent graduates. The volunteer lawyers, while while lawyers, volunteer The graduates. recent paid of more that was devoting tasks group these to the time work, of hours of terms In out. stood lawyers volunteer this service entails a legal-social dimension. Within the group of a comprehensive service requiring the intervention of a diverse set of professionals, as law recent by graduates not out belonging to a bar association. This is because carried legal services are seen as was task this sometimes lawyers: practicing by provided werealwaysservices psychology).not counselling and Legal and journalism, science, political education, physicalwork, social in graduates also but graduates, school law mostly included and group; biggest the was (which graduates recent and staff, the to lawyers,lawyersfreelancebelonging of composed wasworkers paid of group The paid staff and of number the services, these to devoted time the aside leaving and terms, absolute In volunteers.by or staff paid by either providedgeneral, in services, legal NGOs, In operation oreven tothesuspension oftheservice. of hours in reduction a to led cuts Conversely,budget schedule. provision service on depended lawyersfunding, mostly from public hiring institutions, which allowed organisations to extend cases, the most In basis. full-time a on lawyers more or hours per week). Only medium-sized and big organisations could afford to hire one social organisations, especially of in the staff smaller ones, work the part-time contracts often, Very(ten or organisations. twenty some and to scarce available the resources stressed per of consequence hours a was ten schedule to limited the six cases, of most In commitment week. weekly a had (59%) organisations the of rest The task. that to less or hours five 41%devoted group, majority this Within respondent services. legal provisionof the to week a hours Most ten than devotedorganisationsless information. funding required their the about provide asked not did when organisations especially of model, cases, some definition In services. filled legal ETHOS be its to by had (FEANTSA’s that questionnaire a Exclusion sent was organisation Housing Each homelessness). and Homelessness on European Typology the by defined of as people some homeless organisations, to social services provide 24 which included study The to. entitled are they the rights to and resources those to access promote to way a the as of services, legal efficacy existing and quality the improving objective: second a had organisations, social byprovided services legal the of picture general a capturing at study,aimed about who provides the services, and how these are provided and funded. and provided are these how and services, the provides social who about by provided services legal information basic collect to analysedwas study this of goal that The Barcelona. in organisations launched was study a 2008, In in Barcelona Legal servicesprovidedbysocialoranisations 1. Sonia Torras, MacuMartínez,andJuanMerelo-Barberá). Colegio, the duty sollicitor system, the legal council service, or the (legal aid) legal service (Noemí the Joaní, of management the in responsibilities with them of all association), (bar Abogados de Colegio the of members by and Madrid), Antonio and Palma, de Ángeles Bueno, (Marta lecturers university three to belonging lawyers three of composed group NGOs, two of whom directed their own organisations working (Bea Fernández, Gisela Cardús, and Albert Parés), a involved It study. unpublished an is This pro bono volunteers, including students working as interns, were similar. pro bono collaborators,

1 This Social Organisations, Legal Services and Strategic Litigation: Fighting against Homelessness from a Rights-Based Approach  Chapter XIV � 225 bono collaborators. In social pro Legal Legal defence in court, when required, was rare and it was not often assumed by the legal services of social organisations. In order services, to social get organisations funding relied for primarily their on legal public private aid. funding On came from the saving other banks or hand, foundations that provide certain funding programmes. for It was very unlikely that organisations supported their services legal through fees paid by external resources limited their their capacity to act, often leading organisations members. to limit Such economic themselves to dependency legal defence on issues on that would not collide with the interests of public agencies. Economic dependency drives social organisations towards action powers. public the by sanctions informal potential from them protect that strategies Consequently, when social organisations join platforms to advocate for a certain issue or to denounce something, the action to be undertaken and the reasons for it are explained in advance to the game is initiated Administration. where the leaders of social organisations acknowledge In that public this fashion, either conflicts, certain a of management the for bargaining support their for look administrations in order to legitimise the administration’s strategy or because resources to they act lack on effective the spot. the The to opposition clear unwritten a that is rule administrations public about some and the organisations social relationship between public from exclusion to lead can powers public by promoted policies legal and social has this but NGOs, tame and polaraisation limit to meant is this practice In funding. power in shifts are there when especially strategy, successful completely a been not determine latter the though even parties, political several of hands the in is power or are organisations social many problems, funding these of regardless So, agenda. the organisations, organisations, these services are received provided assistance on site, in provided by the professional different staff of the ways. organisation. and depending Normally, on the case Occasionally, in to question, more referred people were people specialised organisations or to the free legal assistance (legal aid) services held by the Colegio de Abogados de Barcelona (Barcelona Bar Association). This occurred defender), public (or solicitor duty a request to had individual an when particular in required case a or arrested, been had who person a to assistance involved service the Some judicial legal review. services were provided by law firms orby professionals who belonged to a different organisation but worked on site for this specific task. their about asked were organisations the services, the of development the Regarding protocols for how to deal with question. this answer not did people organisations Some required). (when practices asking referral for their services and about their Galf of those who responded used protocols organisations that participated in and the to preferred survey services provide related to the provided Services action. other of spheres other half to expanded then did which foreigners, not. on law Most by organisations focused on information about legal and social issues. Frequently, about information disseminated and case the of follow-up a did organisations those the violations that might take place. Legal Legal services by social organisations were mainly provided by women, forming a majority both among the paid staff and among being the largest group, devoted fewer hours to these services. However, it should be to hours fewer these being services. the devoted group, However, largest to thanks precisely maintained are services legal some of operation the that recognised pro bono lawyers. the efforts of 226 � Chapter XIV  Social Organisations, Legal Services and Strategic Litigation: Fighting against Homelessness from a Rights-Based Approach Shelter has taken court cases on issues including priority in homelessness and home identified. be can issues emergingkey which from base good a areTheyarea. their in on going is what and authorities housing with contact everyday in are centres country.the aroundlocal happening The is what with touch in team legal its keep centres advice housing local its while activities, training and lobbying counselling, to defend the right of every person to have a home. In this sense, Shelter carries out Shelter (England) is a non-profit organisation that was founded in 1966 with the aim Shelter: Thehousingandhomelessnesscharity jurislogement.org. jurisprudence: share and members link to website a has also Jurislogement through information-sharing work sessions and joint analyses of different problems. programme work defined a develops network The issues. complex groups particularly working on established recently has It e-mail. through contact periodic keep members while everymonths, threeonce meets and members 27 has network this Currently,Housing”). to Right Enforceable “the for acronym (FrenchDALO the of exchange of information is especially important in the This context rights. of related and the housing implementation of area the in decisions court of exchange the on based strategies legal build network the poverty. and Lawyersin of evictions,criminalisation as the forced squatters, such discrimination, areas, justice, different to in access rights, works housing network French This academia. and practice, private organisations, social from lawyers linking network national a created: was of knowledge little Jurislogement that context this in waslevel.street It and at cases legal evolutionof judiciary,the the in with services contacts public few and had organisations and social academics lawyers with hand, working other to the accustomed On more research.were and jurisprudence relevant with up to able keep not and isolated often were lawyers These teams. their to lawyers added andto organisations people social situation, this tackle to order in homeless first, At interests. their toinform defend knowledge legal needed field this in working onehand, the prevent them from accessing appropriate mayhousing. On It became clear that professionalsthat problems complex have users service persons. homeless that to homeless evidence was there assistance regarding deficiencies problems certain and resolve to order in organisations social by promoted lawyers of As explained by Noria Derdek (2008), France saw the creation of a national network The experienceoftheFrenchnetworkJurislogement problems and,consequently, inpreventing homelessness. networks. housing certain of resolution the or in element key a become has service organisationsof kind This other through or own their on either problems, legal Therefore, it is important that social organisations can rely on services able to tackle perspective oftheirwork. politicised and problem-centred a keep and providers, service mere be to reluctant www. Social Organisations, Legal Services and Strategic Litigation: Fighting against Homelessness from a Rights-Based Approach  Chapter XIV � 227 2 Strategic litigation is a method that can 3 Strategic litigation is very different from many 4 Strategic litigation uses the justice system to achieve achieve to system justice the uses litigation Strategic 5 Identify gaps in the law. properly. and enforced interpreted are that laws Ensure the judiciary. Document human rights violations by http://england.shelter.org.uk/__data/assets/pdf_file/0011/216101/Shelter_09-10_Achievements_report. pdf http://www.crin.org/resources/infoDetail.asp?ID=21271 http://strategiclitigations.org/category/aboutus/whatisstrategiclitigation/ http://www.crin.org/docs/What_is_Strategic_Litigation.pdf

more more traditional ideas of legal legal services. service Traditional organisations offer valuable services to individual clients and work diligently to represent and advise those clients in whatever matters they may bring through the door. But traditional because legal services are client-centred and organisation, providing there is often no opportunity limited to look at cases in the by bigger the resources of litigation, Strategic picture. on the other hand, is focused the on changing policies and behaviour. of patterns broader legal and sociation (Rekosh, 2003) are to: 2003) are legal and sociation (Rekosh, 2. 3. 4. 5. Litigation means taking cases to simply court. stating your case Strategic before a judge. litigation is much more than gation Legal services and strategic liti loss payments. The target is to try to get important cases to the Court of Appeal for instance, in 2009/10, At the campaigning can level, set a precedent. they where working in partnership with Crisis, the Chartered Institute of Housing and Citizens Advice, Repossessions Shelter Mortgage the called for 2010, the April In protection from property. eviction his/her for of repossessed private is tenants landlord if their Act was passed, (Protection of protecting more Tenants) than 300,000 households and giving tenants the right to delay when victims, possession violence domestic help to case legal landmark a for won Shelter 2009/10 up to two months. Also in the House of Lords ruled that a find women to rights proper staying have and homeless considered be in now will violence domestic temporary refuges after fleeing were four of family a Shelter, by brought case a in year, same The home. permanent told they could keep the home they decision, landmark had a In lived scam. in back” lease for and “sale more repossession than a 20 in it years losing –– almost after the judge ruled that the family could resume ownership of their home, the branding sale and lease back company “dishonest”. increase The in case similar highlighted schemes that a target worrying and desperate preventing in role key a play to continued homeowners. have country the across projects and Shelter’s services 84,000 than more to advice specialist gave Shelter 2009/10 In homelessness. solving families 7,000 than more for homelessness prevented services advice Shelter people. accommodation. to obtain new settled another 2,341 and individuals, and enabled bring about significant changes in the practice or law, publicawareness via taking carefully-selected cases to court. 228 � Chapter XIV  Social Organisations, Legal Services and Strategic Litigation: Fighting against Homelessness from a Rights-Based Approach to supportthecase. there are information sources from within the public administration who are willing a claimant who is willing to assume the pressure resulting from the strategy and that precedent;a set theyto understand;areto media theyand easy public the havefor wider social problem; their decisions have a stronger impact on society and are likely a problemrelatedto legal a to attention theycall whether of basis the on litigation strategicfor cases select to better strategy(Rekosh,Therefore,is litigation 2003). it strategic the distort eventually that orders court of implementation the to related bargainingthrough and political agreements.cases On the resolveother hand, there to may also preferbe problems administrations, court the by censure to lead can that cases in areand, cases broughtcourt, such to that like Administrationsnot do 6. below: table the in shown as risks, also has litigation strategic that saying without goes It          http://www.endvawnow.org/en/articles/948-engage-in-strategic-litigation.html Enable individualstoseekremedies forhumanrightsviolations. Create progressive jurisprudencethatadvances humanrights. rights law. human international with comply not do that laws national of reform Instigate voices onthatissue government may betryingtosilence platform tospeakoutonissueswhen Provide an officially-sanctioned issue independence orfairnessonagiven Highlight thelackofjudicial Encourage publicdebate Raise awareness Empower clients Spark large scalepolicychanges people Achieve change forsimilarlysituated Set importantprecedent group ofclients Win adesired outcomefortheclientor 6

of S P otential trategic B L itigation enefits

       that may bevery difficulttowin Expend valuable resources onacase issue of independenceorpower onagiven Undermine judiciaryby highlightinglack Set badprecedent individual goals Privilege politicalorstrategic goalsover marginalized groups Risk safetyofclient,especially Political backlash the case pressure or lengthoftimerequired for Unduly burden client,intermsof of S P trategic otential L R itigation isks

Social Organisations, Legal Services and Strategic Litigation: Fighting against Homelessness from a Rights-Based Approach  Chapter XIV � 229 Strategic litigation on housing at the local level requires the actors to be familiar with familiar be to actors the requires level local the at housing on litigation Strategic the of case a in represented client the surrounding circumstances relevant any and all protection of personal rights. First, housing is associated with the almost all in aspects of living children the of education health, finance, (e.g. life private and family the to possible, as well as client the know to get to imperative is it Second, etc.). family, giving from client the prevent to and process the throughout client the support help up on the case. For example, when preparing the case background, it is necessary medical to visits including clients, of situation life the mapping time some spend to to and children, of protection legal and social providing bodies to schools, to doctors, it is important to establish and a unambiguous strong structure Finally, neighbours. of the claims both in terms of proof and arguments. Gathering and processing the information from various sources is very time-consuming and difficult to manage. be crucial for the claims (Hrubá, 2010). may the outcome of this work However, In a paper published by Housing Rights on Watch “Housing Rights of Roma and Travellers Across Europe”, Katerina Hrubá explains local the cases of strategic litigation maintain lessons regarding to the prefer housing organisations rights learnt local of survive, the to Roma people. order from in (2010), the Hrubá to According “good relationships” with the town authorities over providing professional services to their clients. Organisations can feel threatened by the local administrators and politicians, and worry about being able to secure intervention can only be future made by organisations that funding. do not operate directly in the Strategic legal their putting are they that feel not do and authorities local the to links no have area, own organisation and staff at in risk.. the Moreover, Czech Republic, many Roma found authorities local the Once town. the sued they when intimidated were clients ways found they them, against proceedings legal started had clients Romani that out to pressure the clients, for example with threats, insolent remarks or intimidating the local authorities. actions taken by It is crucial to start at the local level to achieve real change. Human rights advocacy advocacy rights Human change. real achieve to level local the at start to crucial is It is both a global and local task. At the awareness, local to level, mobilise it the is victims, necessary and to to raise litigate public in this lower has to courts. be done in Nonetheless, a incorporating very international precise way, and regional human rights legislation debate, and and empowering the victims of human rights abuses through jurisprudence, the creation forging of victim alliances, support groups. forcing It is essential public to and organisations, facilitate on exchanges experiences, between barriers and lawyers legal strategies regarding cases of violations of human rights such as housing identify rights. opportunities Moreover, it to litigate is for necessary these to rights in the relevant to cases, as promote well understanding as and networking among both at the national lawyers, and human at the (in to international order use level regional rights advocates and and international mechanisms). all, Above it is crucial to initiate, at the state level, cases that satisfy the conditions for an international case that could follow in the medium term. be initiated ic litigation g can a strate How level? at the local 230 � Chapter XIV  Social Organisations, Legal Services and Strategic Litigation: Fighting against Homelessness from a Rights-Based Approach international level. international have NGOs international and played regional an essential role local, in national rule of Numerouslaw reform their processes and mandate. at on the global and depending and differs location system Nations United the Their of (ECOSOC). parts Council with Social relationship and Economic Nations United the with status 1947. In since accordance with Article Nations 71United of the the UN Charter,of partnersNGOs can havebeen consultativehave NGOs level, international the At collateral their effects (Kenna etal.,2008). about concerned very not times, at are, that orientations political various the to balance and template a provide can This level.a local both and at European valve, safety social a of establishment the to contribute and landscape the out mark that law case international constitute decisions The policies. public rights-based consequently and debate, civic or civilised a base to possible be will it which on rights, terminology,social recognisedfromlegal stems common which a providesEurope of Council the mechanisms, involved.these Throughrights the of budgetary measures, and legislation, institutional and other ambitions, measures to policy assess progress examines towards This others)realisation represented. and are (NGOs State complainant and both where debate open an for allows process adjudication The rights. social progresson regardto with policies public of quality (2008), the monitoring system is the most effective human rights Uhry assessment of the and Kenna to According complaints. collective on protocol the and Charter the of articles specific the both ratifies state a when applicable is mechanism This law into question, but also the ensemble of government policies in a particular area. a calling only not allows it that is special system this makes What 2008). (Brillat, among national decision-makers, as well as among the courts and the general public lodged have decisions Committee’s that the disseminating in play to organisationsrole decisive havea complaints The FEANTSA. like NGOs international as such actors”, “non-official of participation the for allows mechanism This 1995). of 158 n. (STE procedure complaints collective a established which created, was Protocol of the social rights guaranteed by the Revised European Social Charter, an additional At the Council of Europe, for the purpose of improving the effective implementation Instruments forstrategiclitiation housing rightsofexcluded andpoorpeople,suchashomelesspeople. the of informally,defence or in formally intensified, be should organisations rights From this perspective, alliances between service providing organisations and human 7. compliance depends heavily on having accurate information and “Shadow Reports”), promote research to back their arguments with policy recommendations (monitoring pose questions (finding the right information depends on asking the right questions), http://www.unrol.org/article.aspx?article_id=23 7 According to Merry (2003), NGOs can identify problems and problems identify can NGOs (2003), Merry to According Social Organisations, Legal Services and Strategic Litigation: Fighting against Homelessness from a Rights-Based Approach  Chapter XIV � 231 International Covenant on Economic, Social and International Covenant on Economic, Social and Cultural Rights (OP-ICESCR), Rights Cultural and Social Economic, on Covenant International Cultural Cultural Rights is, thus, a new opportunity to claim and enforce economic, social a being from far is it Although arena. international the in (ESCR) rights cultural and magic bullet to address the violations of these rights, this instrument offers a new space for advocacy and pressure for the advance of human rights. Aware Group the of on opportunity, Working the this Enforceability set up by ESCR-Net created a strategic litigation initiative to identify cases that are ready (at the internal level) to national receive (1) support, factors: and determining which these uses could ESCR-Net have OP-ICESCR. a the positive from springing effect on the jurisprudence remedies are exhausted (the top instance of appeal has been reached) or the case success; (2) the case containt legal stage themes but far from advanced is in a very that are new and in need of a deeper interpretation (for instance, how to evaluate the (3) reasonability); or achievement progressive resources, available maximum the case the (4) and ESCR; the of violation systematic and widespread a to related is case communities social movements. groups the support of grassroots enjoys The Optional Protocol to the Paragraph Paragraph 9 of the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (1986) grants a role to NGOs, because these “can play an important role the in Covenant. This role should accordingly be promoting facilitated at the national the as well as implementation of the international level”. The Maastricht Guidelines on the Violations of Economic, Social and Cultural Rights (1996) monitoring” and “Documenting on introduced 32 paragraph their in and rights, socioeconomic several remedies for violations of of violations of economic, social NGOs, among and other actors. cultural For instance, rights one of grant the mechanisms Nations these of Human the Rights functions United Council to to monitor the compliance commitments with of the the UN duties member and states regarding human rights is Periodic Review (UPR). the This, while Universal being a procedure of allows inter-state review, for the participation of NGOs, which will shed some light on the main reasons for 10 on Moreover, examined. be will that country a in rights human regarding concern Protocol Optional the ratified Assembly General Nations United the 2008, December the to which introduced a mechanism of protection of the economic, social and cultural to communications present to rights such of violations of victims allows that rights and case the analyses Committee The experts. independent by formed Committee a aforementioned the for responsible state the to recommendations relevant the issues the of violations of victims all to justice to access grants mechanism This violations. effective an enjoy not did who others, among housing, or health education, to rights presented be to communications for allows it also, country; own their in protection their consent). give (if they on behalf of individuals or groups or lobby on issues, observe proceedings, make statements, generate public support UN norms. and disseminate for higher standards press for UN norms, 232 � Chapter XIV  Social Organisations, Legal Services and Strategic Litigation: Fighting against Homelessness from a Rights-Based Approach political development throughout history. human rights, as the latter have been widely considered the instigators of rights and movementssocial advocatefor consolidate that to contribute should entities Social promote, andobserve humanrights. and legal frameworks, and to monitor compliance with the duty to protect, respect, lawsregressive transform to or clarify to order in litigation, strategic undertake to us allow that strategiesempowerment collective up build to important is It Rights. individual communications to the UN Committee on Economic, Social and Cultural of the Council of Europe. Additionally, it is possible to send cases for submission as Justice, as well as lodging collective complaints with the Committee of Social Rights bring to possible individual cases is to the European It Court of Human Rights, courts). and the European supreme Court of and courts, courts, constitutional (district courts, courts appeal domestic in cases take to organisations local and lawyers support can scope international regionalor a organisations with social bigger Some supporting themincourt. representingor services, NGOs the of users to provideassistance Lawyersalso can lawyers.byreceiveoff-record advice can lawyers,they to or advice direct offer can laws.implement jursiprudenceand the organisationschange use to can that NGOs people with with lawyersand with links work to opportunties provide and important expertise local have who establish relationships These litigation. strategic of development the to ways different in collaborate and organisations rights with human partnership in work can NGOs the Or, exclusion. housing of problems and preventto help homelessness that services support legal establish can NGOs social excluded individuals they socially work the with. of There arerights many human waysthe to of advocate. respect Forfor example,advocate should and could people homeless for services providing organisations social that shown has chapter This Conclusions Social Organisations, Legal Services and Strategic Litigation: Fighting against Homelessness from a Rights-Based Approach  Chapter XIV � 233 Law and Social Inquiry . Routledge. Law. through Pressure Housing Rights of Roma and Travellers Across The Right to Housing: The Way Forward. Homeless Homeless Forward. Way The Housing: to Right The Anuario de Filosofía del Derecho, n. 26, pp. 2010, The Right to Housing: The Way Forward. Homeless in The Right to Housing: The Way Forward. Homeless in . Autumn 2008 FEANTSA. Europe. Autumn 2008 Derdek, N. (2008): “Jurislogement: a multidisciplinary network for the in housing”. to right Brillat, R. (2008): “The effective implementation of the right to housing to right the of implementation effective “The (2008): R. Brillat, of homeless or poorly housed persons: the role of the European Social Charter” in FEANTSA. in Europe. Autumn 2008 (1992): R. Rawlings, and C., Harlow, Hrubá, K. (2010): “Ethnic Discrimination and Segregation in Housing as Housing in Segregation and Discrimination “Ethnic (2010): K. Hrubá, a Violation of Rights Personality - Strategic Litigation Cases in Kladno, Czech Republic”, in Rights Watch Issue. Europe. A Special Housing right Europe of Council violates “France (2008): M. Uhry, and P., Kenna, to housing” in 31-56. against Law–Violence Global a “Constructing (2003). Engle Sally Merry, Women and the Human Rights 28:941-78. System”, Rekosh, E. (2003): “Public Policy Advocacy: Strategic Litigation International Advocacy”. Programme. 20 Stanhope ICT and Policy Training August 2003. Europe. Autumn 2008, FEANTSA. proyecto del experiencia La derechos: los a acceso El (2010): A. Madrid, de “dret al Dret”, References 234 � Chapter XIV  Social Organisations, Legal Services and Strategic Litigation: Fighting against Homelessness from a Rights-Based Approach epilogue Late Modernity, Structural Violence and the Collective Memory: Tools for Understanding the “Social Harm” of Homelessness

Iñaki Rivera Beiras Observatory on the Penal System and Human Rights University of Barcelona

Late Modernity, Structural Violence and the Collective Memory: Tools for Understanding the “Social Harm” of Homelessne  epilogue � 237 of late modernity? I pointed out several years ago that the study and of criminal question” the has so-called traditionally “prison been question monopolised by legal experts generally, have only who, theft- or examined drug- legal for rules incarcerated is that population prison seldom the penetrate of 80% social that reality. For fact the instance, In crimes. other for incarcerated is 20% remaining The overlooked. is crimes related people of 94% currently that showed statistics Union European example, for Spain, in jail killed, never have raped, injured or hurt Only anyone. 6% of prisoners were incarcerated for such serious crimes. This breaks with the traditional thinking that who prisoners of full are they fact in when rapists, and murderers of full are prisons fit a specificprofile: young, immigrant, sick, poor, and having been convictedcrimes of against property or drug-related crimes. Doubtless work with these people could be different before, during and That after is their the prison subjectivity stay. focused. are of the so-called late modernity on which the criminal justice systems jectivities who shapes the punitive sub 1. It can be said that the people who sleep outdoors are in the different European visible capitals signs of a systematic these violation situations of cause human “social rights, harm”. We and propose the as use a modernity”, violence” “structural of and memory” “collective in to order explain what result concepts like “late the “social a homelessness harm” criminological is, caused standpoint. from by We will provide a brief description of these concepts, as they will be the instruments that will allow us to show “criminal control” and require us to place the violation at harm” “social of production of forms other and violence” “state rights, human of of criminological concerns. the centre One of the most important tasks being carried out by the of University Barcelona’s cracks open to try to been has Rights Human and System Penal the on Observatory in the orthodox theoretical and epistemological pillars most characterised studies criminology on has the “criminal of question”. Historically, criminology that have placed actions institutionally defined as “bad” and violatingin its sights as legal the focus squarely of rights In study. this regard, the epilogue of this book wishes to invite criminology to focus its attention not necessarily on actions defined“officially” as crimes, but on actions thathuman rights. cause real harm to society, like violating 238 � epilogue  Late Modernity, Structural Violence and the Collective Memory: Tools for Understanding the “Social Harm” of Homelessness distinguished the so-called “negativeso-called the distinguished of absence the in ascertained is which peace”, always peace, about studies specific in and foregoing, the on expanding Galtung, justify orlegitimizedirect orstructural violence”. to used be can that ideology,language... opinion, public religion, of) “(aspects by a is Thereexemplified be may which and realisations”.“cultural”, termed he which violence, mental of form third and somatic actual or their achieving individuals from prevent groups structures “structural “political-economic called when he verified which is second, A violence”, event. an of consists usually and effects visible has verbal, physicalor either be may which and violence”, “direct called he which first, The forms. various highlight of existence the to out pointed like he which would in one I the here violence; of studies. typologies aforementioned various the described in Galtung authority highest world’s the becoming Oslo, in violence abounded. In 1958, Johan Galtung founded the Institute for Peace Research Worldof and Shoa the of acts barbaric the After War warand peace, on studies II, 2. structural violence–asaframeoreerence called “structural violence”. so- the of paradigm the such concept, second the of at look foundations a take let’s the So consequences. into deeper delve to necessary it make assertions these But Again”. “Never of banner the raise again once to us force will future far very not a in doubt no which WorldWarII, of wake the in constitutionalism” “social wehavequickly how Europe,of and in principles forgotten committed the being is and group expulsions (deportations) conceal the extent to which a new “barbarism” dual, centres internment a Finally,prison, system. housing of segregatory creationand discriminating the spurs housing, particularly and services, public to access Moreover, of space”. penalising “public the in persecution capital of expansion and attraction the for space new and a seeks that state population, neoliberal the of Roma side cruellest the show the immigrants pressure the of, solutions, discrimination housing adapted and or home against, a have not do they that fact the of because precisely people homeless by criminalisation performed The activities everyday Europe. the in of homelessness of penalisation the on book this in Tenseen clearly be yearslater,can trends these unfortunately,of consolidation the clue f mrec” r pntv ecpinlt” pntv mngmn of orientation market’s toward deregulation and “flexibilisation”, andtheshrinking management economic Welfare State. the punitive dissent, exceptionality”: of criminalisation “punitive increasing poverty, or emergency” of the “culture and intolerance” of “criminology the on based policy criminal between publishers cross the the of result a by as future the escenarios” for trends clear posibles out pointed we y which in Anthropos, presente del Historia castigo. el sobre discursos y “Mitologías book the coordinating of pleasure the had also I 2004, In 1. Literal translation: MythsandDiscourses onPunishment.Historyofthe Present andPossible Scenarios. 1

Late Modernity, Structural Violence and the Collective Memory: Tools for Understanding the “Social Harm” of Homelessne  epilogue � 239 Criminal 3 [1] Humankind not only no longer progresses on the road to 2 http://en.wikipedia.org/wiki/Angelus_Novus http://en.wikipedia.org/wiki/Angelus_Novus - “A Klee painting named Angelus Novus shows an angel looking as though he is about to from move away something he is face is His fixedly contemplating. Hishistory. eyes of are angel the pictures one how is This spread. are wings his open, is mouth his staring, keeps which catastrophe single one sees he events, of chain a perceive we Where past. the toward turned the awaken stay, to like would angel The feet. his of front in it hurls and wreckage upon wreckage piling it has got caught dead, and make whole what has been smashed. But Paradise; a storm is blowing from in his wings with such violence that the angel can no longer close them. The storm irresistibly propels This skyward. grows him before debris of pile the while turned, is back his which to future the into him call progress.” storm is what we It is often pointed out that the illustrated tradition gave birth to modernity like the moment at which “the which at moment the like modernity to birth gave tradition illustrated the that out pointed often is It humanity guide to destined was that progress of rationality a inaugurated that era new a showed lights” toward higher levels of well-being and development. But in opposition to that interpretation there was another, sometimes less well-known view, based on works project. illustrated like the of falsehoods “Dialect and shortcomings the of explained Adorno the and Horkheimer like Illustration”, authors in which freedom, freedom, toward the plenitude of the illustration, it retreats and sinks into a thenew Holocaust, Lager of andbarbaric The the then,genre. discovery ultimately, first showed the indicated dialect. Understanding the reasons for this immersing drama involves oneself in the “dialect of the the path Illustration”. that led Retracing toward calamity the means looking steps at history through down “Angelus the another of view Benjamin) lens: (Walter Benjaminian the from And, lens. memory’s Novus”, progress as the accumulation processes. of victimisation great corpses the victims, the oblivion and of spread destruction the meant has above all, scholars scholars paid no heed to such processes. The “civilisation” the illustrated spoke project so much about was not for all humankind –– it subjects would (male, only white, affect adult, certain and homeowners) in the part Western of the world (Costa, 1974). The new social contract thus excluded the “others” or “opposites”: 3. 2. The critical theory that emerged from the “Frankfurt School” is based on a painful experience (1944). ntidote - The Frankfurt School memory as A 3. As we As can we the throughout read book, homeless people can be with confronted the different expressions of violence definedby Galtung. Direct and structural violence is perpetrated against homeless people through public or extreme private security right-wing forces, groups or that assert can we regard, this In State. bureaucratic Welfare restricted increasingly an barriers in services to hamper access to not visible. that are of other forms of violence result homelessness is the visible public direct violence, as well as “positive peace”, a situation that can only be achieved when achieved be only can that situation a peace”, “positive as well as violence, direct that effectively, exercised and developed be can people of needs important most the is, when their fundamental rights can be exercised. Hence the assertion that there will not be a situation of complete (or “positive”) peace when people are access, for denied instance, to vaccinations, food, housing, health care, education, etc. If, from groups or individuals prevent structures political-economic the said, Galtung as what in violently, acting are that structures very the is it potential, full their realising violence. as structural has come to be known 240 � epilogue  Late Modernity, Structural Violence and the Collective Memory: Tools for Understanding the “Social Harm” of Homelessness from this concept and links it to the right to resistance (which we will come back come will we (which resistance to right the to it links and concept this from history rebuilds known, is as Agamben, conceptualisation. a such beyond farther However, limit. bit or threshold a even go conceptual to its seeks defines work this it itself, order legal the of suspension a rather,by but war), of laws the (like laws of set special bya not is emergency”proposed of “state the study fact, in emergency”that, states of who Agamben, type of the adopting “state am I laws”, like of set expressions a of for “suspension and As way. another be” for also where useful totality, its only “can in not there present is the examining view for proposed also this but that past, the note contemplating to crucial is it think I But another way. “therethat was”projects,clear other narratedreams…wouldbecome other it thus written differently –– it would follow another screenplay, have other actors, describe looking at history from the prism of the conquered. Then history would no doubt be Benjamin proposes a view of history that finds its constitutional element in Memory: effect, In examined. be must reality which throughits lens the of be should presence–– memory active the is, that –– Memory and constitutional, truly is It laws.of set a of suspension circumstantial or temporary,passing prism, a than this more under much emergency,is of state that regard, this In reality. decently permanent surviving a for is requirements minimum the of absence the where people, many so of everydaylife the wayof constrains that emergency of state permanent the unveiling and oppressed the of lens activethe through things reconstructive, viewing means a it task; involves It memories. others’ to itself limit not does and beyond far goes latter,issue the the for But conquerors. the of victory the for pay the conquered at most represent the spoils, or the collateral damage, or the price to “historicists”), them call would (Benjamin outlook first towardthe lean who those For happen. not did what include to happened what beyond go must examination both –– Memory occupy themselves and with the past, History but Memory.the difference can wayto (and should) be pertains radical: another the which is past, there a the But at as looking it. of place, made who taken those has by told what obviously events, with of History sum identify who some are There Human for Rights. struggle the and origin the explains briefly book this of part first The pay thepriceofhistory, thatwhichthey callprogress. of history, conceiving of way who those of suffering a the trivialising to tantamount is terms, big such such in thinking Benjamin, For woven. is history of fabric the which with events damage, collateral are They episodic. are casualties the and achieved largely through the use of violence. For many people, the ruins, the rubble progressbeen march–– has unstoppable its in ruins and corpses on built been has progress more, what’s catastrophe; avert to unable was Progress unquestionable. so been had 1940s) and 1930s the of speaking are (we then until that rationale a progress,of face opposite byReyesaddressesthe noted thesis As Benjamin’s Mate, legal project thatwas sowell described by discriminatory Costa(op.cit.). and hegemonic present; that the in of designed was only exclusion event social rather, an as (mis)interpreted sometimes is what constitute not does so times, modern early in surged also enemy the and racism otherness, about Theorisation dispossessed. the and races, other of people girls, and women Late Modernity, Structural Violence and the Collective Memory: Tools for Understanding the “Social Harm” of Homelessne  epilogue � 241 Adorno was perhaps the one who most clearly pointed to the future of the sciences the of future the to pointed clearly most who one the perhaps was Adorno following the Holocaust. practice Indeed, and of in Adorno’s political-cultural view, after the Shoa, the categorical has Kantian imperative crumbled. Kant was possibly indicates, one one of the most lucid of philosophers the and, Illustration, as Tafalla universality, affirming in optimistic be to afford most could who philosophers the of rationality, autonomy and humanity never can Auschwitz as that so action the and thinking “orienting –– pillars imperative categorical of civilisation. Adorno’s new be repeated, so that nothing like it can happen ever again” –– has clear differences Kant. with the one formulated by It is the rule of law itself that has left so many people without the protection of laws. laws. of protection the without people many so left has that itself law of rule the is It is being built on Progress the backs of part a of large humankind, and is if no there law for all, then obviously law itself is negated. I would like to, then, exceedingly important frameworks for analysis, like the one being discussed, whose structural existence I sustain to be should far-reaching, not be so quickly left the by wayside. Of course, we are aware that frameworks for analysis require tweaks and possible updates. are We also aware that this epistemology comes from a the at well very memory of long role the understood who time Frankfurters the was it Indeed, ago. time. Horkheimer himself points out that it allows past injustice to remain alive, to the point that without such remembrance, the past is no and longer, the injustice of memory is of such magnitude that it should be the central This power dissolves. as Perhaps, Mate points out, question the of return of philosophy. and to so much barbarism be may due to precisely the neglected fact to that have take we Memory seriously. to later). For it now, suffice to say that,as the author states, both in the right to resist and in a state of emergency what is ultimately at play is the problem of the legal meaning “of a sphere of action that in itself is extralegal”. But the of mention if latter’s the Agamben’s actuality, in then, thesis, Benjamin’s to connected is idea “tradition of the oppressed” describes a far longer (in time) and more painful quality) (in trajectory that describes an entire social group for which there has never been, de facto, a true acknowledgement of rights. The idea of “suspending law”, from the point of view of legal and political can philosophy, be understood even better using Benjamin’s theses. According to the “lawless a in left be to Benjaminian society of part for or work to emergency of state the for view, that it was clear space” or a “no-law zone” (Pietro Costa), the presence of law is necessary always and indispensable. Like Mate said, “if exceptional, were everything we would be in state permanent a be can that system legal a with dealing not we’re here And chaos. Capella, Estevez, as achieved, is This 2003). (Mate, oppressed” the for emergency of Madrid or Gordillo point out, when the “homework” that should be (both required of the state and of the big transnational corporations) is so weak, so light, that it is virtually nonexistent. “There is a correlation between rights and duties, so that they are two faces of the same coin (…). The right J. Araújo, the content of a right” (Estévez to satisfy of It is the duty of others one another. involves the duty of P. Mercado, Merino, Giménez A. Bravo, J. Campderrich; J. Gordillo, J. Capella,, (ed.), Cambrón, A. Madrid, A. 2013). 242 � epilogue  Late Modernity, Structural Violence and the Collective Memory: Tools for Understanding the “Social Harm” of Homelessness S. TombsS. Greek(fromthe zemiology of developingGordon,idea 2004), D. the and some scholars in recent years, including Paddy by Hillyardadvocated strongly (Hillyard,been P.has that idea an with C. is Pantazis,harm social that here maintain we of study, a restricted criminology can never deal with these phenomena. That is why savings,expectancies...unquestionably,their life their object the weextend if to fail jobs, their homes, presenttheir rights, more and the more losing are people of which in turmoil, harmfulness” “social the to refers that criminology critical overall an of studies into more and more way their finding are system” the of “crimes or market” of We“crimes of concept the state”, of “crimes these to next that add can sponsored genocide? fought in the last century? In short, what does criminology have to say about state- 250the morewarsin and hundredmore generallydead one the million than about the war crimes committed by NATO and the United States in the last twenty years, furthermore, what does criminology have to say about the “humanitarian wars” and 1990s of the Kurds in Iraq, the Muslims of Bosnia and the of the Tutsisin massacres the in Rwanda.then And and 1979, and 1975 between Cambodia in million two byPakistaniexterminated the million government1971, in Bangladesh in the about three or two the about 1922, 1915and between massacred Armenians half a and million the about Congo, the people of colonisation Belgian million the by 1884 eight in exterminated the about murders: mass innumerable other about Holocaust, also the but about only not –– century last the of genocides innumerable the Ferrajoliago, long Not (Ferrajoli, 2013)L. sayto about had criminology what asked 4. the socialharmparadigm:Towards(orbeyond) and humanrightsviolationsintrinsictosettingsofpoverty and socialexclusion. injustice are experiencing who people in raising awareness mobilising difficulty and the down breaking to key the is Therefore,solidarity relations. international of and has become a key concept for social progress fundamental and for the structural of change of society discussion values allows and rights, of individualism social duty. Solidarity, egotistical together with encouraged liberty, equality has and justice, that the object of study. But extending and rescuing the concept of “solidarity” It isknownthatdifferent analyses failtocontemplatepoverty orsocialexclusionof as a society impossible. This is not an easy task when profound social exclusion problems exist, but it is not that makethemrebel againstit”. injustice toward sensitivity a developedhave to it feeling people for necessary is It indignant reaction is This as emotional justice. as it against is rational. indignation It does is not nurturepoint itself starting of arguments The alone. justice. of theory rigorousformally a not is injustice against struggle the in point starting the us, “for imperative,that categorical Adorno’s citing without although out, pointed recently If we wish to use such categories in the present, we should consider, as Estévez Araújo a “new”Criminology?

Late Modernity, Structural Violence and the Collective Memory: Tools for Understanding the “Social Harm” of Homelessne  epilogue � 243 The theme of resistance, which in the past was related to a “right” that understood being could of point the to be broadened and changed has individually, exercised as one more manifestation of collective action. Roberto Estévez Araújo, Gargarella and particularly (Gargarella, R. 2011), clearly stress that subjecting people The current demonstrations The in demonstrations current cities (e.g. Europe across in Greece, Spain, Portugal, etc.), which Hungary, are being described as collective expressions, taking stances, come civil they the from disobedience and similar actions, nothing are new; rather, tradition a with fact, in dealing, are We resist”. to right “the as known category (old) of profound a reassessment of constitutionalism democracy, that is continually “in progress”, and a feeling amongst some people seeking to implement cannot be allowed. currently public authorities are that the repressive measures the Talking about Talking a policy and a culture of resistance leads us like to the culture that rethink sought to raise its definitive barriers againstorigins, the “extremeevil” of post-war European social constitutionalism, but nurtured by a tradition that in fact is far older. All that has been mentioned makes it inevitable for so many authors’ calls for “active “active for calls authors’ many so for inevitable it makes mentioned been has that All vigilance” and a “right to resist”, or claims the indispensable for discussion among the populace to “civil invent new social practices or disobedience” formulas, or similar expressions. the necessary (and indispensable) social mobilisation 5. There There seems to be little room for that fit between of greys the full range and spheres, doubt private combine the public and symbiosis that perverse The we globalisation. are economic of governed shelter by the under powers extremes that, two the industry banking a to money state of flow the by Spain, in instance for represented, that invests more and more in the business that produces and trafficsweapons, at of hundreds affects that policy eviction an with on carried has it that time same the thousands of families, is just one example of how governing the economy comes before the language and practice of politics, rights and needs. How long and how go? far will this economic-political-military rhetoric “zemia”, which means harm) to give a final push to that need to transgress the rigid rigid the transgress to need that to push final a give to harm) means which “zemia”, confines of criminological theory and talkingstop of social harm. Its concept of social harm about a perspective and to focus on study from crime and punishment, is broader than that of criminology: while the by crimes, latter it measures ignores the the harm the harm for caused resources of caused lack by the by wars, errors, by medical by economic Europe, in speculation, system labour decadent by the our of poisoning the by or disabilities, mental or physical with people of subsistence food. The fact that it favours the social harm perspective does not seek to reform it, as it is incapable beyond of to but move rather criminological theory, or improve and must necessarily the bonds of the definitions ofbreaking crime and criminality, criminology. beyond be developed 244 � epilogue  Late Modernity, Structural Violence and the Collective Memory: Tools for Understanding the “Social Harm” of Homelessness linked to law and the violation of laws by public bodies are in turn punished by laws.law,of rule fallacy,regulatorythe is powera under is lawbecause of rule the with Ferrajoli (2001) accurately notes that “the idea that the right to resist fundamental is incompatible of protection legal effective rights and to promote for real and effective search roadmaps to such end, the is entirely legitimate. channel to state, the of the resurgence of a right to resist, using the proper legal and constitutional channels Welfarea of context the in law,and of weface, democraticrule violence and State of “culture true a structuralOnly the against Thus, rights. fundamental either part. defend legitimately can resistance” most are the for struggle, lost been through have or gained jeopardy serious rights, in correlative the flagrantly duties, have that their corporations violated transnational the and state the by represented fundamentally is party other that if party.And other the for duties involve rights words,one’s other In guarantees. their as much (2013),Araújoas worthare rights effective opposition and mobilisation coming to the rescue. As indicated by Estévez globalisation so-called of without severelyhavecurtailed been resultrights these etc.), deregulation,(privatisation, a as and decades, recent in happening been has of not what is This lost. and eroded be (and can rights the subsides, struggle struggle the when coin”: collective of result a as the of side graciousother showspowersgranting“the also political by be) the that rights of establishment this But the for issue key present andthefuture. a is Approach Rights-Based Human the and movements social people, homeless helping are that NGOs connect to reason,For this rights. human these claim-bearing social subjects are the social movements: the true social root of who have fought for (and achieved) recognition of greater fundamental rights. And movementand calls for more protection anti-militarist of nature? Clearly, no it is the claim-bearing social been subjects conscientious had to environmental movements the about said be might What right? a such for fighting there right if the recognised Would been coalesced? have objection not had rights such demanding movement feminist a if recognised been later, have abortion, to and first, vote, to Wouldarisen? not had rights such conquer movementto women’sstruggling right worker’s a if health and education housing, to work, to right social the recognised impaired,elderly,prisoners,the systemswouldlegal But being. haveinto came etc. mentally the women,children, of rights fundamental the addressingstandards and rules international result, a As 1989). Ferrari(cfr. rights” human of multiplication and “specification a called been has process This minority,etc. religious or ethnic woman,foreigner,a a person,child, person, sick a old a an as belongs: it which an to sector social perceiveor to category theories) accordingthe lawethical it to and observes the human being as an abstract and ahistoric entity (perspective of natural process whereby human rights appear and are transformed –– that which no longer In effect, the development of sociological theory had given new substantiation to the important most the representssociological substantiationofhumanrights. resistance Ultimately, promoted decades. been two have last changes the where over Africa) or America Latin in (e.g. countries against resist extremeto deprivation, a resistance within right that can be passivea but occur also recognisedactive, as in numerous also thus latter can The regime. this democratic that formally a and tyranny, of form a is deprivation severe to Late Modernity, Structural Violence and the Collective Memory: Tools for Understanding the “Social Harm” of Homelessne  epilogue � 245 Barcelona, May 2013 May Barcelona, Iñaki Rivera Beiras  In conclusion, the issue dealt with homelessness, should in be understood not only as this an acute problem of the work, present, no less than which the the author problem describes of brilliantly, but also as a us with measure an of action approach hope, when confronted providing with the violation of human rights that we witness every day in our streets, or that which is concealed from us. The considerations made in this epilogue seek to at least contextualise one of the great dramas of (not only) contemporary social harm from a broader theoretical political perspective. This idea changes and mistakes what is for what should be the effective operation of operation effective the be should what for is what mistakes and changes idea This out, points rightly book this As model”. ideal and regulatory its with system legal the the situation of extreme social exclusion experiences the of and empowerment homeless collective people solidarity, But sometimes mobilization. social hampers their movement All” for “City the with place taking those like struggle and disobedience of that shows Spain, in Hipotecas” las por Afectados de “Plataforma the or Hungary, in well. and for the right” is alive Ihering’s “fight 246 � epilogue  Late Modernity, Structural Violence and the Collective Memory: Tools for Understanding the “Social Harm” of Homelessne References Trotta, fundamentales. Madrid. derechos los de fundamentos Los (2001): L Ferrajoli, the duties.EditorialTrotta Madrid. book of the duties. The weaknesses and shortcomings of the strategy of Mercado,Merino, P.Giménez A. (2013):A. Madrid, A. Cambrón, The Bravo, J. Campderrich; J. Gordillo, J. Capella,, (ed.), J. Araújo, Estévez Franco Angeli. Milano: umani. diritti dei Sociologia (1989), V./TREVES,R. FERRARI, Época II,junio2011,pp.37-54. 25, Número Libertades. y Derechos JUSTICE). SOCIAL TO INJUSTICE A LA JUSTICIA SOCIAL” (LAW AND PUNISHMENT: FROM CRIMINAL PENAL. Gargarella, R.(2011): “EL DERECHO Y EL CASTIGO: DE LA INJUSTICIA Criminology: Taking HarmSeriously, PlutoPress. Hillyard, P. (with C. Pantazis, S. Tombs and D. Gordon) (2004) Beyond Universidad deBarcelona. nº 4, (pp. 224) LA Observatorio del Sistema Penal y los Derechos Humanos EN CRIMINOLOGY,CONTEMPORARY IN RevistaPoderPenal 2013,y Crítica DEBATE EPISTEMOLOGICAL EPISTEMOLÓGICO GLOBALES GLOBAL THE LAW CRIMINAL DEBATE AND CRIMINOLOGY,CRIME CRÍMENES EL CONTEMPORÁNEA1, CRIMINOLOGÍA, PENAL: CRIMINOLOGÍA DERECHO (2013), Y L. Ferrajoli, the duties.EditorialTrotta Madrid. book of the duties. The weaknesses and shortcomings of the strategy of Mercado,Merino, P.Giménez A. (2013):A. Madrid, A. Cambrón, The Bravo, J. Campderrich; J. Gordillo, J. Capella,, (ed.), J. Araújo, Estévez Walter BenjamínSobre elconceptodehistoria . Madrid:Trotta. MATE, R. (2009), Medianoche en la historia. Comentarios a las tesis de MATE, R.(2003),MemoriadeAuschwitz.Madrid:Trotta. Ed. Giuffrè Milano: Bentham). a Hobbes Da I (vil. classico liberalismo del giurisprudenza sulla Ricerche Giuridico. Progetto COSTA,P.Il (1974),

Formatted and Printed in Belgium, September 2013 by l'Imprimerie Chauveheid. COORDINATED BY Guillem Fernàndez Evangelista EDITED BY Samara Jones

A Report on the Criminalisation of Homelessness in Europe

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