By Caio Arruda and Carmen Bulac
This is an article in the Mapping the Ghetto in Paradise series.
Is the law ever emancipatory from the oppressed perspective? This question is often posed to challenge common remarks on the role of law as a tool for social justice. Its underlying theoretical vindication lies in the idea that the legal framework of any given state was built upon hegemonic traditions and concepts that serve to uphold the status quo of those in power, following that any attempt to provide social justice under the existing structure would reaffirm historically flawed institutions. Insofar as it represents a territory of disproportional state control, the ghetto as a sociological concept is a product of this structure, for it has historically served as a place for both legal and spatial confinement. The ghetto rhetoric aims at creating an image of dangerous outsiders while curtailing many life opportunities from its residents(1), which leads to a sentiment of both disempowerment and of a prolonged “illegal” life when it comes to communities of immigrants.
In this piece, I will attempt to show how residents of a particular housing project in the city of Copenhagen – Mjølnerparken – have resorted to elements of international human rights law to reaffirm their sense of belonging to this community, and to challenge state-sponsored racism. In other words, I intend to explore the use of the legal apparatus in the pursuit of social justice. It is not my intention to take a stance on the discussion as to whether this phenomenon represents a leap to “emancipation”, or to answer the question presented by Boaventura de Sousa Santos(2) as to whether there could be a non-hegemonic legal framework at all, but rather to simply sparkle a critical immersion into the topic of social justice.
The community of Mjølnerparken has been classified by the Danish government as a “ghetto”. This concept as an official state language was introduced in the 2010 policy plan called “Ghettoen tilbage til samfundet – Et opgør med parallelsamfund i Danmark” (The Ghetto back to society – Confronting parallel societies in Denmark). The discourse of “parallel societies” translates to a fear “that many [immigrants] continue to be more closely attached to the country and the culture, whence they or their parents come from, than to the Danish society, in which they live(3)”. This is also reflected in the “ghetto criteria”, which establishes that an area can be considered to be a ghetto if the share of immigrants and descendants from non-Western countries exceeds 50% and it fulfils the following criteria:
1) the share of residents between the ages of 18 and 64 without connection to the job market or education exceeds 40%;
2) the share of residents with criminal convictions per 10,000 residents above the age of 18 exceeds 270 persons.
If an area is not composed of a majority of residents of non-Western descent but fulfils the other two criteria it is considered a “vulnerable housing state”.
The “ghetto plan” has now been executed in form of harsher laws for its residents(4), as well as in numerous housing policies aimed at mass evictions, demolishment, and, most notably, a limitation rule that will only allow public housing in “hard-ghettos”(5) to amount to 40% of total housing. Under the existing rules, the community of Mjølnerparken can be classified as a hard-ghetto, making it subject to a development plan that aims at reducing the share of common family housing(6). Worried about their lives post-eviction, a few inhabitants of Mjølnerparken decided to sue the government(7).
The lawsuit relies both on the European Union-law (EU-law) and on the European Convention on Human Rights (ECHR) to sustain that the “ghetto plan” has subjected the plaintiffs to discriminatory and unequal treatment under the law. The arguments focus on two main points: discrimination and the right for private and family life. In relation to the latter, Article 8 of the ECHR read as follows:
– ARTICLE 8 Right to respect for private and family life –
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others(8).
It is worth noting that Article 8 encompasses four rights: respect to private and family life, to their home and correspondence. Since Denmark is party to the ECHR, it has agreed to enact and revise its laws in accordance with these provisions, which means in this case that any policy or act carried out by the government must respect all four rights enshrined in the article 8. The European Court of Human Rights builds on its jurisprudence to define the scope of such rights, which allows for a litigation strategy that is based on previous cases brought under the scrutiny of the Court. It is also worth noting that the second part of Article 8 brings an exception to the rule when it allows public authorities to interfere with the exercise of those rights under specific situations.
What may constitute a home, then? In other words, what is the scope of this concept that allows for such powerful protection? To the European Court of Human Rights, “whether or not a particular premise constitutes a ‘home’ which attracts the protection of Article 8 will depend on the factual circumstances, namely – the existence of sufficient and continuous links with a specific place(9)”. As a result, if a person has sufficient bounds to a community, an eviction could amount to a violation of the right to respect for their home, and as it would also reverberate on their social and family ties(10), it could also interfere in their right to private and family life.
The disruptive nature of the “development plan” has sparked a backlash that could be talked about as identity politics. In other words, residents from these areas are vocalizing their belonging to a community that is under threat. This sentiment is therefore translated into a human right: that of respect for private and family life. To the European Court of Human Rights, a view of private life also encompasses “the possibility of the effective enjoyment of a social life by reason of cultural and linguistic familiarity”(11), which is of particular relevance to communities of immigrants and their descendants.
Another major aspect of the lawsuit is the discrimination argument which is primarily based on the Ethnic Equal Treatment Act and EU-law. The plaintiffs argue that the “development plan” amounts to unequal treatment as it will not affect similar housing estates that do not meet the ethnic origin requirement. The threat of eviction lies on the fact that Mjølnerparken has been classified as a “hard-ghetto”. It also follows that “the designation ‘ghetto’ for the applicants’ homes entails that the applicants are being stigmatised as ‘ghetto’ dwellers, a term which the current Minister of Housing has admitted is derogatory and affects the residents(12)”.
The category of “non-Western immigrants and descendants” is not defined in the plan. However, it has been used since 2002 by Statistics Denmark to describe immigrants from all countries other than the EU, Andorra, Australia, Canada, Iceland, Lichtenstein, Monaco, New Zealand, Norway, San Marino, Switzerland, the USA, and the Vatican State. It follows that the main argument is that this category is linked directly with racial and ethnic origin since it reflects inherited traits rather than a place of birth. The applicants state that by using the criterion of “non-Western immigrants and descendants” as the decisive factor for when a housing estate is being classified as a “ghetto” and, after four years, as a “tough ghetto”, the Development Plan and the less favourable treatment stemming from the approval of the Development Plan are based directly on the racial and ethnic origin, which amounts to direct discrimination, therefore violating the Ethnic Equal Treatment Act and EU-law.
As a comparison, other neighbourhoods in Denmark – such as Byparken/Skovparken in Svendborg – face similar socio-economic issues as Mjølnerparken has but won’t fall within the category of ghetto or hard-ghetto because less than 50% of its residents are of “non-Western origin”. Consequently, the policy cannot be justifiable on economic or social terms, or else it would also need to affect these other predominantly white neighbourhoods.
The “Tenants of Mjølnerparken v. Danish Ministry of Transport and Housing” case is still ongoing. On the 1st of September was published the first response from the Danish Ministry of Transport and Housing in which they claim for dismissal of the accusation of discrimination and acquittal in the question of violation of the residents’ human rights under the ECHR. The lawsuit, led by case lawyer Susheela Math and attorney Eddie Omar Rosenberg Khawaja, is tried in the Domestic Courts in Denmark. Even though the arguments brought by the applicants are based on the EU’s Race Equality Directive and the European Convention on Human Rights, the decision will be taken at the national level.
However, on the 23rd of October UN human rights experts called for Denmark to discontinue the sale of apartments in Mjølnerparken and the consequent eviction of its residents while the court case is being litigated. UN experts argue(13) that this comes in violation of social housing principles and resident’s right to non-discrimination, equality, and adequate housing. Besides, they ask Denmark to respect the residents’ human rights of racial equality before the law as the Ghetto policies target racial, ethnic, and religious minorities and threaten the security of their tenure. Moreover, the UN experts also point out the stigmatizing effect that comes with labelling an area ghetto which heightens xenophobic discourse and racial discrimination. This implies that the residents of Mjølnerparken should be allowed to enjoy cultural rights even if they differ from “Danish values”. It also concerns one of the policies under the “Ghetto Package” that stipulates that ghetto children as young as one year old are to be taught the “Danish values” when being separated from their families for at least 25 hours a week.
The UN statement published last week brings to attention some of the same arguments presented by the attorneys in the lawsuit mentioned above but also presents two other aspects in which the residents are affected negatively: the police can selectively enforce strong actions on ghettos, and residents who commit certain crimes can serve a sentence that is twice as long than it would be for individuals that live in communities not considered ghettos.
This is not the first time the UN criticizes the “Ghetto Package” and its racial discrimination basis. Back in 2018, Commissioner Zeid Ra’ad Al Hussein found the policies “hugely troubling”:
Since 2018 residents of Mjølnerparken and other areas predominantly in Greater Copenhagen are directly affected by the policies put in practice and the stigmatization of the “ghetto list”. Now in 2020, domestic courts are trying the case, and if they fail to respond, the case will then most likely be taken before the European Court of Human Rights. This looks like a long, tedious process ahead of us. A process that perpetuates hate speech which won’t simply go away may the Danish Court decide in favour of the residents of Mjølnerparken. The stigmatization behind such labels has long-lasting effects on people’s lives that are beyond a victory or defeat in Court. In this sense, litigation may serve as a means to ensure people’s rights but won’t go as far as to correct the stigma these policies have placed upon these communities.
2. Boaventura de Sousa Santos, “As bifurcações da ordem”, p. 110
4. For example, “Laws passed last March require children from the age of one to spend at least 25 hours a week in childcare to receive mandatory training in ‘Danish values’. There was even a proposal from the far-right Danish People’s party that ‘ghetto children’ should have a curfew of 8pm, although that was rejected by the parliament.” Al Jazeera: Denmark’s ‘ghetto plan’ and the communities it targets
5. A “hard ghetto” is when a community has fulfilled those criteria for four years.
7. “’Common family housing’ is a particularly Danish form of housing based on principles of democracy, egalitarianism, and affordable housing for all. It is a type of nonprofit housing which is run by housing associations that are intended to be self-governing and independent. The residents pay rent and the housing associations pay annual contributions to the National Building Foundation. The funds are used for matters such as the construction, renovation, or demolition of buildings, as well as for social projects such as activities for children and crime prevention programs.” Justice Initiative: Tenants of Mjølnerparken v. Danish Ministry of Transport and Housing
9. Winterstein and Others v France (27013/07), para. 141
10. Yordanova and Others v Bulgaria (25446/06), para. 105
11. The right to respect for private and family life A guide to the implementation of Article 8 of the European Convention on Human Rights Ursula Kilkelly p. 12
About the author
Caio Arruda is a master’s student at Roskilde University. He has a bachelor’s degree in Social Sciences from Federal University of Paraná (Brazil).
Carmen Bulac is a student from Roskilde University, in Denmark, interested in gender, intersectionality and migration studies while making space for those who feel invisible in the society or excluded by it.