Tenants of Mjølnerparken v. Danish Ministry of Transport and Housing

Copenhagen Residents Challenge Eviction Plan Under “Ghetto Package” Law

A group of residents who are under threat of eviction from their homes in Mjølnerparken, Copenhagen, are taking legal action against the Danish Ministry of Interior and Housing’s approval of a development plan made under the country’s “Ghetto Package” of legislation. 

The “Ghetto Package” is based on a state-made distinction between those of so-called “Western” and “non-Western” background—a categorization that has already been condemned by international bodies. It was launched in March 2018 as a bundle of over 20 different legislative proposals affecting spheres of life as diverse as housing, education, and criminal justice. The government’s stated aim is to “eradicate” by the year 2030 areas designated by the State as “ghettos.” As a result of these laws, thousands of people across Denmark are currently being evicted from their homes.

With this case, the plaintiffs, many of whom have resided in Mjølnerparken for decades, are seeking a declaration that the Ministry’s approval of a plan to sell two blocks of over 200 homes where they live is unlawful because it is discriminatory under domestic law, European Union law, and the European Convention on Human Rights and violates their fundamental rights, including the right to respect for their homes.

Facts

Mjølnerparken was categorized as a “tough ghetto” under Danish housing law as amended by the “Ghetto Package.” The residents’ case concerns a legal requirement introduced by the “Ghetto Package” to reduce “common family housing” in “tough ghettos” to a maximum of 40 percent by the year 2030. Such a reduction can be made through means such as sale or demolition.

“Tough ghetto” areas are those which have satisfied the “ghetto” criteria for five or more years. The determining factor in the designation of an area as a “ghetto” as compared with other areas with the same socio-economic factors is whether the majority of residents are classed as being of “non-Western” background. This tag can cover generations of individuals, including “descendants” born in Denmark. Australia and New Zealand are excluded from the concept of “non-Western,” demonstrating that the definition formulated by Denmark is not based on the geographical location of countries.

Three UN human rights experts have found that “in effect, ‘non-Western’ is a term that disproportionately attaches to Denmark’s mainly non-European racial, ethnic, religious and non-White populations, including persons descended or originating from Muslim-majority countries.”

“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. 

On May 14, 2019, the Board of the housing association for Mjølnerparken passed a development plan to sell two blocks of housing to meet the requirement to reduce common family housing to a maximum of 40 percent. Later that year, the development plan was subsequently approved by the municipality of Copenhagen and the Ministry of Transport and Housing, now known as the Ministry of Interior and Housing.

Open Society Justice Initiative Involvement

The residents are represented by attorney Eddie Omar Rosenberg Khawaja from Rosenberg Khawaja Law Firm, who works closely with the Justice Initiative on the case. The Justice Initiative has also provided legal support for civil society submissions on the “Ghetto Package” to international monitoring bodies.

Arguments

Non-discrimination

Discrimination based on any type of “status” is prohibited by the European Convention on Human Rights (ECHR) where a standalone right, such as the right to respect for home, is engaged. This includes on grounds of racial or ethnic origin, which are also unlawful under the EU’s Race Equality Directive (RED).

Direct discrimination

The residents, who are stigmatized and under threat of eviction, are being treated less favorably than those in comparable areas, on the basis of racial or ethnic origin as encompassed within the term “non-Western”.

The countries included within the definition of “Western” all have majority white populations. People classed as being of “non-Western background” are a racialized group, with legislative policy papers and statements referring to “ethnic origin” and those with “norms” or religious values that are different from those of the majority population.

Indirect discrimination

The approved plan puts racial or ethnic minorities at a particular disadvantage and is not objectively justified by a legitimate aim. This is because the removal of residents with “non-Western background” is not a legitimate aim and the approved plan is not appropriate or necessary. Furthermore, the residents’ legitimate interests, including their housing rights under the Charter of the Fundamental Rights of the European Union, are being unduly prejudiced.

Instruction to discriminate

The approval of the development plan constitutes an instruction to the housing association to discriminate because the housing association must comply with the plan or risk enforcement action being taken against it by the Ministry.

Article 14 of the ECHR

The residents have demonstrated a difference of treatment (based inter alia on their status as residents of a “tough ghetto”) that does not pursue a legitimate aim and is not proportionate.

Other fundamental rights

Both the CJEU and the European Court of Human Rights have held that the loss of one’s home is an extreme form of interference with fundamental rights. It has also been recognized that the loss of a family home places the family concerned in a particularly vulnerable position.

Right to respect for private, family life, and home

The approval of the development plan constitutes an unjustified interference in the residents’ rights to respect for home as well as private and family life. As well as their homes, the residents risk losing the network and community that they have built up through their long-standing residence.

This right requires individual circumstances to be taken into account in assessing whether the very weighty reasons required to justify an interference exist. Moreover, the approved plan does not pursue a legitimate aim and is not necessary or proportionate. 

The right to choose one’s residence

The state has not shown why the plan to evict the residents from where they have chosen to live is necessary for the public interest.

The right to protection of property

The approval of the development plan unduly interferes with the residents’ rights to peacefully enjoy their property under their permanent leases.

There has been no reasonable opportunity to challenge the measures under the plan and there is not sufficiently weighty general interest in the interference.

2021 Legislative Expansion of the “Ghetto Package”

In March 2021, the Ministry announced a legislative proposal to expand the housing element of the “Ghetto Package,” with the stated aim of reducing the percentage of residents of “non-Western” background in any Danish “housing estate” to a maximum of 30% within the next ten years. 

The law was passed in November 2021 and added a new category of designated areas known as “prevention areas,” again using “non-Western background” as the determining criterion. The newly designated areas are subject to various provisions including restrictions on housing allocation and the option to demolish common family housing.

The law also changed some terms used in the “Ghetto Package,” but not the definition of “non-Western” background, and the effect of the provisions remains the same. In its Explanatory Memorandum, the Danish Government stated that the “ghetto” terminology can be an obstacle to attracting a wider group of home-seekers. As such, “ghetto” was replaced with “parallel society” area and “tough ghetto” with “transformation area.” The original terminology remains in regular use in common discourse.

Referral to the Court of Justice of the European Union

In December 2021, the Eastern High Court delivered a judgment in favor of the residents on preliminary issues, rejecting an argument by the Ministry that they are not directly impacted by the approval of the development plan.

The residents, together with third-party interveners, the Danish Institute of Human Rights and two UN Special Rapporteurs, asked the Eastern High Court to refer the case to the Court of Justice of the European Union (CJEU) in Luxembourg, seeking a ruling from the CJEU on the correct interpretation of the EU Race Equality Directive in relation to “non-Western” background.

In November 2022, the Eastern High Court granted the request, and the case was referred to the CJEU on 30 June 2023.

A ruling from the CJEU could be relevant not just in Denmark, but across Europe, as this type of wording has been used or proposed in multiple national contexts in the continent, as noted by the UN Special Rapporteurs.

Approval of Sale

In January 2023, the Danish Housing and Planning Authority (an agency of the Ministry) approved the sale agreement of the two blocks of housing pursuant to the approved development plan, notwithstanding the ongoing case against the Ministry and the urgent appeal of the UN Special Rapporteurs to halt the sale pending the resolution of the litigation.

Residents have filed further proceedings against the Ministry, seeking a declaration that the Ministry’s approval of the sale is invalid, for the same reasons as the approval of the development plan. They have asked that the proceedings be suspended, and completion of the sale are suspended until the Courts decide whether the Ministry’s approval of the development plan and the sale are valid.

In the meantime, the residents have received eviction notices from their housing association.

Exceptional Laws Following the Russian Invasion of Ukraine

In May 2022, the Danish Parliament passed a raft of amendments to various laws to welcome Ukrainian refugees, providing them with “security, stability, and the best possible conditions.” One of the key provisions concerns the removal of a ban on refugees moving into certain areas regulated by the “Ghetto Package.” As Ukraine is not currently defined as “Western” in the “Ghetto Package”, there have been discussions about the impact of Ukrainian refugees into these areas, and whether the definition of “Western” will need to be changed to prevent the influx of Ukrainian refugees from triggering new “ghetto” type designations.