In Case of a Forced Eviction: What are the Remedies Available?

According to international law and guidelines, all persons affected by forced evictions have the right to timely and appropriate remedies, such as access to legal counsel, free legal aid, compensation, restitution, return, resettlement, and rehabilitation.

1. United Nations Basic Principles and Guidelines on Development-based Evictions and Displacement

The UN Guidelines protect the right to remedy. In particular, they contain provisions for:

a) Fair and Just Compensation (Paragraphs 60 - 63)

• Compensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, such as: loss of life or limb; physical or mental harm; lost opportunities, including employment, education and social benefits; material damages and loss of earnings; moral damage; and costs required for legal or expert assistance, medicine and medical services, and psychological and social services.
• Cash compensation should under no circumstances replace real compensation in the form of land and common property resources.
• Where land has been taken, all evicted persons should be compensated with land commensurate in quality, size and value, or better.
• All those evicted, irrespective of whether they hold title to their property, should be entitled to compensation for loss, salvage and transport of their properties affected, including the original dwelling and land lost or damaged in the process.
• Women and men must be co-beneficiaries of all compensation packages. Single women and widows should be entitled to their own compensation.
• To the extent not covered by assistance for relocation, the assessment of economic damage should take into consideration losses and costs, for example, of land plots; house structure; contents; infrastructure; mortgage or other debt penalties; interim housing; bureaucratic and legal fees, lost wages, lost educational opportunities, health and medical care; resettlement and transportation costs. Where the home and land also provide a source of livelihood for the evicted inhabitants, impact and loss assessment must account for the value of business losses, livestock, equipment, trees / crops and lost / decreased wages.

b) Restitution and Return (Paragraphs 64 - 67)

• When circumstances allow, the State should prioritise restitution and return for all persons, groups, and communities subjected to forced evictions. Affected persons shall not, however, be forced against their will to return to their homes, lands or places of origin.
• When return is possible, the competent authorities should establish conditions and provide the means, including financial, for voluntary return in safety and security, and with dignity, to homes or places of habitual residence.
• Responsible authorities should facilitate the reintegration of returned persons and exert efforts to ensure the full participation of affected persons, groups and communities in the planning and management of return processes.
• Competent authorities have the duty and responsibility to assist returning persons, groups or communities to recover the property and possessions that they left behind or were dispossessed of upon their eviction. If return and recovery are not possible, competent authorities must provide appropriate compensation or other forms of just reparation.

c) Resettlement and Rehabilitation (Paragraph 68)

Resettlement must occur in a just and equitable manner and in full accordance with international human rights law.

2. United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law

These Basic Principles and Guidelines were adopted by UN General Assembly Resolution 60/14765 and are applicable in instances of forced evictions that constitute gross violations of international human rights law.

The relevant articles of the Resolution include the following:

11. Remedies for gross violations of international human rights law and serious violations of international humanitarian law include the victim's right to the following as provided for under international law:
a) Equal and effective access to justice;
b) Adequate, effective and prompt reparation for harm suffered; and,
c) Access to relevant information concerning violations and reparation mechanisms.

12. A victim of a gross violation of international human rights law or of a serious violation of international humanitarian law shall have equal access to an effective judicial remedy as provided for under international law.

15. (...) In accordance with its domestic laws and international legal obligations, a State shall provide reparation to victims for acts or omissions which can be attributed to the State and constitute gross violations of international human rights law or serious violations of international humanitarian law.

17. States shall, with respect to claims by victims, enforce domestic judgements for reparation against individuals or entities liable for the harm suffered and endeavour to enforce valid foreign legal judgements for reparation in accordance with domestic law and international legal obligations.

19. Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one's place of residence, restoration of employment and return of property.

20. Compensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, resulting from gross violations of international human rights law and serious violations of international humanitarian law, such as:
a) Physical or mental harm;
b) Lost opportunities, including employment, education and social benefits;
c) Material damages and loss of earnings, including loss of earning potential;
d) Moral damage;
e) Costs required for legal or expert assistance, medicine and medical services, and psychological and social services.

21. Rehabilitation should include medical and psychological care as well as legal and social service.

3. Judgements of the High Court of Delhi

The High Court of Delhi, in the case Sudama Singh and Others vs. Government of Delhi and Anr. (2010) emphasised:

62. (iv) The State agencies will ensure that basic civic amenities, consistent with the rights to life and dignity of each of the citizens in the jhuggies, are available at the site of relocation.

In the case P.K. Koul and Ors. vs. Estate Officer and Anr. and Ors, the High Court of Delhi affirmed:

232. So far as compensation is concerned, it is again well settled that the same would not be monetary alone. Principle 18 of the Guiding Principles for IDPs as set out by the UN, mandates that competent authorities shall provide internally displaced persons with and ensure safe access to essential food and potable water, basic shelter and housing, appropriate clothing, essential medical services and sanitation etc. Resettlement and reintegration are an essential part of the rehabilitation of IDPs. They have the right to participate fully and equally in public affairs at all levels and are entitled to equal access to public services in the part of the country where they are resettled. Principle 29 mandates when recovery of the property and possessions which the IDPs left behind or were dispossessed of upon their displacement is not possible, they are entitled to be provided appropriate compensation or another form of 'just reparation'.

238. Compensation to these petitioners which could be considered appropriate and perfect thus would have to include comprehensive resettlement such as economic rehabilitation and affordable housing schemes which have been clearly envisaged by the respondents. Several other measures towards meaningful rehabilitation essential in terms of the Guiding Principles have not even entered the respondents' consideration. The same hashowever not been possible so far. This court cannot shut its eyes or judicial conscience or remain oblivious to the stark realities.

241. (…) the respondents cannot avoid their constitutional obligation of protecting the life and liberty of the petitioners and ensuring shelter to these victims of criminal acts who stand displaced from their home for no fault of theirs, primarily on account of failure of the respondents to protect their Constitutional rights. In case rehabilitation is not possible then the respondents have no option but to ensure meaningful and reasonable resettlement in the above terms. To mitigate effects of the displacement from home, hearth and property, the respondents are thus legally obliged to provide at least reasonable shelter as part of the proportional compensation to the petitioners for violation of their basic and fundamental rights. Such 'just reparation' would constitute part of "reasonable compensation" and would be a step towards suitable rehabilitation of the petitioners.