Hudorovic and Others v. Slovenia: domestic law prevented indigent Roma from connecting their homes to clean water and sewerage, while the ECtHR assumed they chose their living conditions, dismissing poverty as a factor. It found no violation, and not even that rights invoked – home/ family life, no degrading treatment, non-discrimination – necessarily applied.

Facts

In Hudorovic and Others v. Slovenia (2020), the ECtHR addressed, for the first time, access to drinking water and sanitation rights. The Roma applicants (including many children) had no water or sewerage at home and depended on welfare. Their huts were illegally built on public land, in a segregated settlement. They complained the authorities discriminated against them by withholding adequate support for connecting them to water and sewerage. Slovenia claimed that, by law, illegal buildings couldn’t be connected to public utilities.

Third-party interveners (TPIs) submitted international findings of socio-economic inequalities affecting Roma in Slovenia, including systemic failure to develop infrastructure in their communities (§131). United Nations Development Programme data revealed disproportionate, high shares of segregated Roma residents lacking basic utilities (§135-6). The World Health Organisation (WHO) established that water sources at 1+km away resulted in very high health risks from poor hygiene (§137). TPIs framed the discrimination ground(s) as ‘living in an informal […] Roma settlement’ (§134).

Judgment and critique

Living in an illegal, segregated minority settlement denotes intersecting race and socio-economic grounds of oppression. The Court recognised the relevance of property status – the housing’s illegality – yet, didn’t consider possible intersectional discrimination. It didn’t discuss poverty (residing in rudimentary, utility-less dwellings outside zoning) as distinct from Roma ethnicity. Yet, Roma aren’t inherently poor or excluded: non-Roma systems marginalise them. Not distinguishing between poverty and Romani ethnicity as separate – intersecting – discrimination grounds imputes Romani poverty to Romani identity, effectively, normalising it, blaming its victims.

The Court blamed the applicants for lacking clean water and sanitation. While recognising their reliance on welfare, it held that they could have used that to provide for their own connection to water and sewerage (§149): they didn’t, therefore, they chose not to. The Court listed their benefits without analysing their expenses (for food, medicine, clothes) to assess what monies remained to build utilities with (such as plumbing, piping, connections to the supply system) or relocate.

The Court relied on no evidence that the applicants chose to remain in their living conditions, defecating around their huts and collecting water 1-2 km away (§12, §21, §33): it admitted it was unclear if they had realistic possibilities to relocate (§148). Its assumption that they chose to stay, lacking clean water, contradicted its acknowledgment that such continuing lack undermines human dignity and health (§116). Effectively, it presumed the applicants chose to discount their own dignity, projecting on them an outsiders’ disregard for their dignity (no Roma ECtHR judges).  

Moreover, the Court blamed the applicants for not proving the lack of clean water harmed their health (§157-8,) despite recognising that such lack, ‘by its very nature’, is harmful (§116) and WHO findings that water being 1+km away results in very high health risks.

The Court’s blaming the applicants for their living conditions was tied to its non-recognition of poverty as underlying their deprivation: it held theirs wasn’t ‘extreme poverty’ (§149). Generally, it acknowledged Roma as ‘vulnerable and disadvantaged’, requiring special State assistance for equal access to utilities (§142-3), yet, dismissed the applicants’ poverty. ‘Extreme’ poverty seemed implicitly required to recognise a want incompatible with dignity as forced on the Roma applicants. Theirs was insufficient.

To further justify the applicants’ deprivation, the Court compared them to Slovenians in remote areas providing for their own water and sanitation. (§155) It didn’t analyse those Slovenians’ socio-economic status and thus, their comparability to the applicants (who didn’t live in remote areas).

The Court admitted that ‘a considerable part’ of Slovenian Roma ‘live in illegally built settlements […] often outside of the densely populated areas’ and ‘face greater obstacles than the majority in accessing basic utilities’ (§143). Despite promising that those ‘factors’ (sic, plural) would inform its decision, it didn’t recognise the racio-economic inequality implied and mentioned no intersectional discrimination. It didn’t consider property status (illegal housing, zoning exclusion) as a basis for the disparity, intersecting with ethnicity (residential segregation) to produce multiple discrimination.

Disregarding poverty as a factor for the inequality, the Court didn’t differentiate between Roma ethnicity and poverty. It assimilated the two, defining Roma via poverty: “the Roma community […] rely on social benefits for their subsistence” (§147). Yet, the applicants were found insufficiently poor: their disadvantage wasn’t recognized as poverty-based. It was attributed to them as their ‘choice’. Paradoxically, Hudorovic theoretically equated the Roma community with poverty, while dismissing its actual members’ actual poverty.  

Subsuming poverty under ethnicity – not recognising the distinction and, therefore, their intersection as discrimination grounds – reinforces othering by implicitly validating Roma deprivation as being about who they are. Not acknowledging disadvantage as intersectional and imposed by poverty effectively imputes it to its victims, framing it as intrinsic to their identity, perpetuating stigma.

Conclusion

Having effectively negated the applicants’ poverty by dismissing it as non-extreme, the Court excluded it as a factor defining their vulnerability. By neglecting poverty as a discrimination ground, and the disadvantage’s intersectionality, the Court blamed the victims, despite well-documented structural inequalities. It effectively stigmatised the victims as ‘choosing’ their own deprivation, while recognising it as incompatible with human dignity. Effectively, Hudorovic questioned the applicants’ dignity by imputing a choice incompatible with it to them. This was enabled by overlooking poverty as an intersectional disparity factor.  

A possible rewrite

“148.  It is unclear whether the applicants had realistic possibilities of obtaining alternative accommodation or improving their own conditions. While the Government asserted such possibility, they provided no proof that the applicants had specific feasible relocation opportunities or that their benefits sufficed to cover basic needs, such as food, clothing, and medicine, in addition to relocation or restructuring expenses. The Court can only conclude that the applicants did not remain in their living conditions by choice. It reiterates that long-term lack of access to drinking water can, by its very nature, adversely affect health and human dignity, eroding the core of Article 8 rights. Accordingly, the applicants may not be presumed to have chosen to live in such want. Strong proof would be required that they, being wholly dependent on State support, chose, rather than were forced, to remain in deprivation incompatible with human dignity. Poor, vulnerable people may not be presumed to have waived their own dignity and health of their own free will.  The want the applicants experienced is to be presumed forced. The Government did not rebut this.

149. While the applicants’ social benefits shielded them from extreme poverty, their living conditions as defined by lacking clean water and sanitation nevertheless indicated substantial poverty. Together with their belonging to a socially disadvantaged ethnic minority, such poverty significantly exacerbated the applicants’ vulnerability, exposing them to highly disparate impacts of legislation designed for the non-Roma, significantly less poor, majority. As Roma, the applicants were at a higher, and high, risk of being affected by racio-economic inequality stemming from the regulations. This amounted to prima facie indirect intersectional discrimination on ethnic and property grounds. Like their community, the applicants lived in illegal racially segregated settlements excluded from zoning, relying on welfare for subsistence. These factors inform the Court’s decision.     

150. The Court has found that domestic law requiring homeowners to pay for their own connection to public utilities and blocking illegal housing connection disproportionately affects the Roma who are statistically much poorer and socially excluded than the Slovenian majority. This prima facie indirect multiple discrimination requires a convincing rebuttal by the Government, including proof that the continuing situation was justified because it was impossible to legalise the applicants’ housing and improve their living conditions. Slovenia has achieved such solutions in other comparable Roma settlements, therefore, strong proof is required that those solutions were impossible to replicate vis-à-vis the applicants if the continuing failure to remedy their housing degradation is to be justified.

151. While there may be ethnic Slovenians in remote areas also lacking public utilities and providing for their own facilities, as the Government submit, this is insufficient rebuttal of the inferred intersectional racio-economic discrimination. No evidence was adduced of the said Slovenians’ numbers and share compared to the share of similarly disadvantaged Roma, or of their socio-economic status and thus, their comparability to the applicants. There is no claim or evidence that said Slovenians are as poor as the applicants. Unlike them, the applicants did not reside in remote areas where public water supply is non-existent. In the applicants’ areas, such supply existed but domestic law prevented them from connecting to it as their housing was illegal. This in turn resulted from the racialised poverty that also prevented them from self-financing solutions. To hold them responsible for (choosing) their own poverty resulting in degrading living conditions would be to blame the victims, reinforcing their othering. “