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FIRST
SECTION
CASE OF PAULIĆ v. CROATIA
(Application
no. 3572/06)
JUDGMENT
STRASBOURG
22 October 2009
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Paulić v.
Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 1 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3572/06) against the Republic
of Croatia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Croatian national, Mr Smiljan Paulić
(“the applicant”), on 13 January 2006.
- The
applicant was represented by Ms S. Pavić, a lawyer practising in
PoZega. The Croatian Government (“the Government”) were
represented by their Agent, Mrs Š. StaZnik.
- On
16 October 2007 the President of the First Section decided to
communicate the complaint concerning the applicant's right to respect
for his home to the Government. It was also decided that the merits
of the application would be examined at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1953 and lives in PoZega.
- The applicant was employed as a civilian by the
Yugoslav People's Army (YPA). On 18 June 1991 the PoZega Garrison
Command issued a conclusion noting the applicant's application to be
granted a flat and classifying it in “group one” on the
basis of his employment with the YPA from 19 October 1988. On 17 July
1991 the Government adopted the Decree on the Prohibition of All Real
Estate Transactions in Croatia (Uredba o
zabrani raspolaganja nekretninama na
teritoriju Republike Hrvatske – published
in Official Gazette no. 36/1991 of 24 July 1991) which banned
all transactions in respect of immovable property situated in Croatia
and belonging to the former Yugoslavia's federal institutions or
legal entities having their seat in one of its former federal units.
This decree entered into force on 24 July 1991.
- On
20 August 1991 the above-mentioned Garrison Command adopted a
decision to grant the applicant, as their civilian employee, together
with his wife and son, the right to occupy and purchase a flat in
PoZega owned by the YPA. The applicant and his family moved into the
flat in September 1991. Pursuant to the Government's decree of 2
October 1991, all possessions of the former YPA came into the
ownership of the Republic of Croatia. The applicant left the YPA and
made himself available for the Croatian Army.
- On 3 June 1991 Parliament enacted the Protected
Tenancies (Sale
to Occupier) Act
(Zakon o prodaji stanova na kojima postoji stanarsko pravo),
which regulated the sale of publicly-owned
flats previously let under protected tenancies, giving the right to
holders of such tenancies of publicly-owned flats to purchase them
from the provider of the flat under favourable conditions. On the
basis of that Act, in 1997 the applicant requested the Ministry of
Defence as the owner of the flat to enter into a contract for the
sale of the flat with him as the buyer. Since the owner declined his
request, the applicant brought a civil action in the PoZega Municipal
Court (Općinski sud u PoZegi) seeking a judgment in lieu
of the contract of sale.
- On
17 October 1997 the State brought a civil action against the
applicant in the same Municipal Court, seeking his eviction. The
State submitted that it was the owner of the flat and that the
applicant, as a result of the decree of July 1991, had never obtained
a specially protected tenancy in respect of the flat, so the State
had the right to repossess it. The two proceedings were joined.
- In
a judgment of 25 October 2000 the Municipal Court accepted the
State's action and dismissed the applicant's counterclaim. It also
ordered that the applicant be evicted. The relevant part of the
judgment reads as follows:
“... the decision relied on by the defendant [the
applicant] is null and void pursuant to the Decree on the Prohibition
of All Real Estate Transactions. No other decision has been adopted
concerning the defendant's [rights] in respect of the flat in
question. Under the Housing Act a specially protected tenancy could
have been acquired on the basis of a final decision on allocation of
a flat for occupation or any other valid legal entitlement (section 3
of the Housing Act, Official Gazette no. 51/85). Save for his
occupation of the flat in question, the defendant does not possess a
final decision that he had acquired a specially protected tenancy or
any other valid legal entitlement to that effect ...”
- On
appeal, on 19 September 2001 the PoZega County Court (Zupanijski
sud u PoZegi) upheld the first-instance judgment. The relevant
part of the appellate judgment reads as follows:
“By the decree of 3 October 1991 the Republic of
Croatia became the owner of all real estate, movables, property
rights and monetary resources situated on its territory and formerly
under control of the YPA. The decree which came into force on 24 July
1991 banned all transactions in respect of the real estate situated
in Croatia (including its sale, exchange, transfer of the right of
use, etc.) which was in possession or owned or under control of the
federal organs or institutions. Therefore, the conclusions of the
first-instance court that after that decree had come into force, the
YPA, which was the owner of the flat, had no right to dispose of it
and that the decision of 20 August 1991 which served as a basis for
the defendant's occupation of the flat, was null and void, are
correct.
Since the defendant has no legal entitlement to occupy
the flat, the decision of the first-instance court ordering his
eviction ... is correct.”
- With
a view to securing the applicant's eviction the State instituted
enforcement proceedings before the PoZega Municipal Court on 17
October 2002. The eviction order was issued on 23 October 2002. On 24
October 2001 the applicant lodged an appeal on points of law with the
Supreme Court (Vrhovni sud Republike Hrvatske). On 19 November
2002 the applicant sought that the eviction be adjourned, pending the
resolution of his appeal on points of law before the Supreme Court.
He also submitted medical documentation concerning his son, born in
1989, showing that he suffers from a malign brain tumour and chronic
hepatitis B. In view of the applicant's pending appeal on points of
law and the condition of the applicant's son, the eviction was
adjourned in a decision of 9 January 2003. On 14 January 2004 the
Supreme Court dismissed the applicant's appeal on points of law.
- The
applicant lodged a constitutional complaint on 21 April 2004. He
complained, inter alia, that his constitutional right to the
protection of his personal and family life had been violated in that
the lower courts' decision had ordered and upheld his eviction. He
argued that these decisions had been contrary to the law and that he
had a specially protected tenancy in respect of the flat in question
and thus the right to occupy it.
- The
PoZega Municipal Court scheduled the eviction of the applicant and
his family for 13 April 2005. The applicant asked for an adjournment.
On 8 April 2005 the State Attorney's Office, which represented the
Ministry of Defence in the proceedings, agreed to the applicant's
request owing to his difficult family situation. They stressed,
however, that it was only a temporary solution and invited the
applicant to file a request for accommodation with the PoZega
Municipality. On 11 April 2005 the PoZega Municipal Court again
adjourned the applicant's eviction until the Constitutional Court's
decision, on the ground that the applicant's constitutional complaint
was pending and that the creditor, that is the State, had agreed with
the adjournment owing to the applicant's difficult family situation.
- A
letter of the PoZega Municipality of 14 April 2005 sent to the
Ministry of Defence indicates that the Municipality had no flats at
its disposal where the applicant and his family could be
accommodated. In a letter of 26 April 2005 the applicant expressed
his intention to purchase another flat.
- The
applicant's constitutional complaint was dismissed as being
ill-founded by the Constitutional Court (Ustavni sud Republike
Hrvatske) on 11 July 2005. The enforcement proceedings have not
been resumed so far.
- In
a letter of 6 December 2006 the applicant informed the Ministry of
Defence that he was finally about to resolve his housing situation.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article
34 of the Constitution (Ustav Republike Hrvatske, Official
Gazette nos. 41 and 55) reads as follows:
“The home is inviolable.
A search of a person's home or other premises shall be
ordered by a court in the form of a reasoned written warrant based on
law.
An occupier, or his or her representative, shall be
entitled to be present during the search of a home or other premises.
The presence of two witnesses shall be obligatory.
Under the conditions prescribed by law and where it is
necessary to execute an arrest warrant or to apprehend a person who
has committed a criminal offence or in order to remove serious danger
for the life or health of people, or for property of greater value,
the police may enter a person's home or other premises and carry out
a search without a court's warrant or the occupier's consent and
without any witnesses being present.
Where there is a probability that evidence may be found
in the home of a person who has committed a criminal offence, a
search shall be carried out only in presence of witnesses.”
- Section
161, paragraph 1, of the Ownership Act (Zakon o vlasništvu
i drugim stvarnim pravima, Official Gazette no 91/1996) reads as
follows:
“The owner has the right to seek repossession of
his or her property from the person in whose possession it is.”
- The
Specially Protected Tenancies (Sale to Occupier) Act (Official
Gazette nos. 27/1991, 33/1992, 43/1992, 69/1992 25/1993,
26/1993, 48/1993, 2/1994, 44/1994, 47/1994, 58/1995, 11/1996, 11/1997
and 68/1998, Zakon
o prodaji stanova na kojima postoji stanarsko pravo)
regulates the conditions for the sale of flats let under specially
protected tenancies. In general, the Act entitles the holder of a
specially protected tenancy of a publicly owned flat to purchase it
under favourable conditions of sale.
The
relevant provision of the Act provides as follows:
Section 4
“Every holder
of a specially protected tenancy (hereinafter 'the tenant') may
submit a written application to purchase a flat to the ... owner
('the seller') ... and the seller shall be obliged to sell the flat.
...”
- The
relevant part of the Constitutional Court's decision no.
U-III/408/2003 of 18 February 2004 reads as follows:
“As regards the alleged violation of the
constitutional right guaranteed under Article 34 of the Constitution,
it is to be said that that a violation of that right cannot occur in
the enforcement proceedings, since Article 34 of the Constitution
guarantees inviolability of home which concerns conduct of the police
during entries and searches of home in execution of arrest warrants
or in order to comprehend a perpetrator of a criminal offence or to
remove serious risk for lives and health of persons or for valuable
assets. Therefore, the provision in question is not applicable in the
proceedings at issue.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the national courts' judgments ordering his
eviction violated his right to respect for his home, contrary to
Article 8 of the Convention, which reads as follows:
“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.”
- The
Government contested that argument.
A. Admissibility
- The
Government firstly maintained that the applicant had failed to
exhaust domestic remedies, arguing that he had not, in the
proceedings before the national courts and, especially, in his
constitutional complaint, alleged any violation of his right to
respect for his home. They asserted that Article 34 of the
Constitution guaranteed such a right.
- The
applicant disputed these arguments.
- The
Court reiterates that the rule of exhaustion of domestic remedies
contained in Article 35 § 1 of the Convention requires that
normal recourse should be had by an applicant to remedies which are
available and sufficient to afford redress in respect of the breaches
alleged. The existence of the remedies in question must be
sufficiently certain not only in theory but in practice, failing
which they will lack the requisite accessibility and effectiveness.
It is incumbent on the Government claiming non-exhaustion to satisfy
the Court that the remedy was an effective one available in theory
and practice at the relevant time, that is to say, that it was
accessible, was capable of providing redress in respect of the
applicant's complaints and offered reasonable prospects of success
(see, among other authorities, Akdivar and Others v. Turkey,
16 September 1996, §§ 65 and 68, Reports of Judgments
and Decisions 1996-IV).
- Turning
to the present case, the Court observes that the wording of Article
34 of the Constitution does not expressly guarantee the right to
respect for one's home within the meaning of Article 8 of the
Convention, but is aimed at securing protection from unjustified
searches only. In this connection the Court observes that even the
Constitutional Court itself has so held in its decisions (see §
19 above). However, and leaving that question aside, the Court notes
that the applicant did lodge a constitutional complaint in which he,
at least in substance, complained that as a result of the lower
courts' decision ordering his eviction he would lose his home. In
these circumstances the Court is satisfied that the applicant
exhausted domestic remedies in respect of his complaint under Article
8 of the Convention concerning his right to respect for his home.
Accordingly, that complaint cannot be dismissed for failure to
exhaust domestic remedies.
- The Court finds that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further finds that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Submissions by the parties
- The
applicant argued that the domestic authorities had violated his right
to respect for his home by ordering his eviction from the flat where
he had been living with his family for more than seventeen years. He
maintained that he had been given the right to occupy the flat in
question already in June 1991 when the PoZega Garrison Command issued
its formal conclusion noting his application for the allocation of a
flat to his family, that is to say prior to the Decree
on the Prohibition of All Real Estate Transactions in Croatia
which had banned all transactions in respect of immovable property
situated in Croatia and belonging to the former Yugoslavia's federal
institutions or legal entities having their seat in one of its former
federal units since this decree had entered into force only on
24 July 1991. The applicant argued that the domestic courts had
not taken all those circumstances into account when ordering his
eviction, but had reached that decision only on the grounds that he
had no legal entitlement to occupy the flat.
- The
Government argued that there had been no interference with the
applicant's right to respect for his home since he was still living
in the flat and although his eviction had been ordered by a court's
judgment, the enforcement of that judgment had been adjourned.
- However,
were the Court to find that there had been an interference, the
Government contended that it was based on the laws regulating
ownership. The decision ordering the applicant's eviction also
pursued a legitimate aim, namely the right of the State to claim
possession of its property.
- As
to the proportionality of the interference, the Government claimed
that they enjoyed a wide margin of appreciation and that the
applicant had no legal entitlement to occupy the flat. The national
authorities had taken into account the applicant's vulnerability and
adjourned his eviction in view of his difficult family situation and
were willing to leave him in the flat until he found alternative
accommodation for himself and his family. Furthermore, he had not
applied for allocation of a publicly-owned flat. The Government
submitted that the applicant had decided to purchase his own flat.
2. The Court's assessment
(a) Whether a right protected by Article 8
is in issue
- The
first question the Court has to address is whether the applicant may
arguably claim that he had a right protected by Article 8 and –
more specifically in the present case – whether the flat in
question may be considered as the applicant's home.
- The
Convention organs' case-law is clear on the point that the concept of
“home” within the meaning of Article 8 is not limited to
those premises which are lawfully occupied or which have been
lawfully established. “Home” is an autonomous concept
which does not depend on classification under domestic law. Whether
or not a particular premises constitutes a “home” which
attracts the protection of Article 8 § 1 will depend on the
factual circumstances, namely, the existence of sufficient and
continuous links with a specific place (see Buckley
v. the United Kingdom, 25 September 1996, Reports
1996-IV, §§ 52-54, and Commission's report of 11
January 1995, § 63; Gillow v. the United Kingdom, 24
November 1986, § 46, Series A no. 109; Wiggins v. the United
Kingdom, no. 7456/76, Commission decision of 8 February 1978, DR
13, p. 40; and Prokopovich v. Russia, no. 58255/00, § 36,
ECHR 2004 XI (extracts)). Thus, whether a property is to be
classified as a “home” is a question of fact and does not
depend on the lawfulness of the occupation under domestic law (see
McCann v. the United Kingdom, no. 19009/04, § 46, 13 May
2008).
- As
to the present case, it is undisputed that the applicant and his
family have been living in the flat in question since September 1991.
The facts of the case show that they have had no other home. The
Government have not disputed that the flat in question was the
applicant's actual place of residence. Having regard to the factual
circumstances outlined above, the Court finds that the applicant had
sufficient and continuing links with the flat at issue for it to be
considered his “home” for the purposes of Article 8 of
the Convention despite the fact that he had no right under domestic
law to occupy it.
(b) Whether there has been an interference
with the applicant's right to respect for his home
- The
Court has so far adopted several judgments where it assessed the
issue of an interference with an applicant's right to respect for his
or her home in the circumstances where an eviction order had been
issued. In the case of Stanková v. Slovakia (no.
7205/02, 9 October 2007) the Court held as follows:
“57. The Court notes, and it has not
been disputed between the parties, that the obligation on the
applicant to leave the flat amounted to an interference with her
right to respect for her home which was based on the relevant
provisions of the Civil Code and the Executions Order 1995 ...”
- Subsequently
the Court held in the McCann v. the United Kingdom (no.
19009/04, 13 May 2008):
“47. It was further agreed that the
effect of the notice to quit which was served by the applicant's wife
on the local authority, together with the possession proceedings
which the local authority brought, was to interfere with the
applicant's right to respect for his home.”
37. Further, the Court has
held in Ćosić
v. Croatia
(no. 28261/06, 15 January
2009):
“18. The Court considers that the
obligation on the applicant to vacate the flat amounted to an
interference with her right to respect for her home, notwithstanding
the fact that the judgment ordering the applicant's eviction has not
yet been executed.”
- The
Court sees no reason to depart from this approach in the present
case. It considers that the obligation for the applicant to leave the
flat amounted to an interference with his right to respect for his
home, notwithstanding the fact that the judgment ordering the
applicant's eviction has not yet been executed. The fact that the
national courts adjourned the applicant's eviction is not of decisive
importance since these proceedings might be resumed at the request of
the State at any time.
(c) Whether the interference was
prescribed by law and pursued a legitimate aim
- The
applicant was ordered to vacate the flat in question by the national
courts under Croatian laws regulating ownership, which allow an owner
to seek repossession of his or her property when the possessor has no
legal grounds for possession. The Court, noting that its power to
review compliance with domestic law is limited (see, among other
authorities, Allan Jacobsson v. Sweden (no. 1), 25 October
1989, Series A no. 163, p. 17, § 57), is thus satisfied
that the national courts' decisions ordering the applicant's eviction
were in accordance with domestic law and
in particular the relevant legislation related to the disposal of the
housing stock (see §§ 17-19). The
interference in question therefore
pursued the legitimate aim of the
economic well-being of the country.
(d) Whether the interference was
'”necessary in a democratic society”
- The
central question in this case is, therefore, whether the interference
was proportionate to the aim pursued and thus “necessary in a
democratic society”. It must be recalled that this requirement
under paragraph 2 of Article 8 raises a question of procedure as well
as one of substance. The Court set out the relevant principles in
assessing the necessity of an interference with the right to “home”
in the case of Connors v. the United Kingdom, (no. 66746/01,
§§ 81–84, 27 May 2004) which concerned summary
possession proceedings. The relevant passage reads as follows:
“81. An interference will be considered
'necessary in a democratic society' for a legitimate aim if it
answers a 'pressing social need' and, in particular, if it is
proportionate to the legitimate aim pursued. While it is for the
national authorities to make the initial assessment of necessity, the
final evaluation as to whether the reasons cited for the interference
are relevant and sufficient remains subject to review by the Court
for conformity with the requirements of the Convention ...
82. In this regard, a margin of appreciation
must, inevitably, be left to the national authorities, who by reason
of their direct and continuous contact with the vital forces of their
countries are in principle better placed than an international court
to evaluate local needs and conditions. This margin will vary
according to the nature of the Convention right in issue, its
importance for the individual and the nature of the activities
restricted, as well as the nature of the aim pursued by the
restrictions. The margin will tend to be narrower where the right at
stake is crucial to the individual's effective enjoyment of intimate
or key rights ... . On the other hand, in spheres involving the
application of social or economic policies, there is authority that
the margin of appreciation is wide, as in the planning context where
the Court has found that '[i]n so far as the exercise of discretion
involving a multitude of local factors is inherent in the choice and
implementation of planning policies, the national authorities in
principle enjoy a wide margin of appreciation' ... . The Court has
also stated that in spheres such as housing, which play a central
role in the welfare and economic policies of modern societies, it
will respect the legislature's judgment as to what is in the general
interest unless that judgment is manifestly without reasonable
foundation ... . It may be noted however that this was in the context
of Article 1 of Protocol No. 1, not Article 8 which concerns rights
of central importance to the individual's identity,
self-determination, physical and moral integrity, maintenance of
relationships with others and a settled and secure place in the
community ... . Where general social and economic policy
considerations have arisen in the context of Article 8 itself, the
scope of the margin of appreciation depends on the context of the
case, with particular significance attaching to the extent of the
intrusion into the personal sphere of the applicant ... .
83. The procedural safeguards available to
the individual will be especially material in determining whether the
respondent State has, when fixing the regulatory framework, remained
within its margin of appreciation. In particular, the Court must
examine whether the decision-making process leading to measures of
interference was fair and such as to afford due respect to the
interests safeguarded to the individual by Article 8 ...”
- The
Court notes at the outset that the proceedings about which the
applicant is complaining involved two separate claims, each of which
may in itself give rise to the question of respect for the
applicant's home. The applicant himself instituted proceedings before
the national courts whereby he claimed his right to purchase the flat
in question under favourable conditions as the holder of a specially
protected tenancy, under the Protected Tenancies (Sale to Occupier)
Act. At the same time the State authorities lodged their own claim
arguing that the applicant had no legal basis for occupying the flat
and seeking his eviction. The two sets of proceedings were joined and
one judgment was delivered, dismissing the applicant's claim to
purchase the flat and at the same time ordering his eviction.
- The
Court notes that when it comes to the decisions of the domestic
authorities in the present case, their findings were restricted to
the conclusion that under applicable national laws the applicant had
no legal entitlement to occupy the flat. The national courts thus
confined themselves to finding that occupation by the applicant was
without legal basis, but made no further analysis as to the
proportionality of the measure to be applied against the applicant,
namely his eviction from a State-owned flat. However, the guarantees
of the Convention require that the interference with an applicant's
right to respect for his home be not only based on the law but also
be proportionate under paragraph 2 of Article 8 to the legitimate aim
pursued, regard being had to the particular circumstances of the
case. Furthermore, no legal provision of domestic law should be
interpreted and applied in a manner incompatible with Croatia's
obligations under the Convention (see Stanková v. Slovakia,
cited above, § 24, 9 October 2007).
- In
this connection the Court reiterates that any person at risk of an
interference with his right to home should in principle be able to
have the proportionality and reasonableness of the measure determined
by an independent tribunal in the light of the relevant principles
under Article 8 of the Convention, notwithstanding that, under
domestic law, he or she has no right to occupy a flat (see McCann
v. the United Kingdom, no. 19009/04, § 50,
13 May 2008). The Court, however, emphasises that such an issue does
not arise automatically in each case concerning an eviction dispute.
If an applicant raises an Article 8 defence to prevent eviction, it
is for him to do so and for a court to rebut the claim. As previously
held, the Court does not accept that the grant of the right to an
occupier to raise an issue under Article 8 would have serious
consequences for the functioning of the domestic systems or for the
domestic law of landlord and tenant (see, McCann v. the United
Kingdom, cited above, §§ 28 and 54).
- The
Court notes that in the present case the applicant raised the issue
of his right to home which was not taken up by the national courts.
While it is true that the applicant's eviction has been temporarily
adjourned owing to the illness of his son in the course of the
enforcement proceedings, this in itself does not satisfy the
requirement that the reasonableness and the proportionality of the
eviction order as such has to be assessed by an independent tribunal.
The Court notes that
enforcement proceedings – which are by their nature
non-contentious and whose primary purpose is to secure the effective
execution of the judgment debt – are, unlike regular civil
proceedings, neither designated nor properly equipped with procedural
tools and safeguards for the thorough and adversarial examination of
such complex legal issues. Therefore, competence for carrying out the
test of proportionality lies with a court conducting regular civil
proceedings in which the civil claim lodged by the State and seeking
the applicant's eviction was determined.
- In
the circumstances of the present case the civil court ordered
eviction of the applicant from his home without having determined the
proportionality of the measure. Thus, it has not afforded the
applicant adequate procedural safeguards. There has, therefore, been
a violation of Article 8 of the Convention in the instant case.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained that the proceedings before the national courts
had been unfair and that he had been discriminated against. He relied
on Article 6 § 1 and Article 14 of the Convention. He further
complained under Article 1 of Protocol No. 1 that he was unable to
purchase the flat in question.
- In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court considers
that this part of the application does not disclose any appearance of
a violation of the Convention. It follows that it is inadmissible
under Article 35 § 3 as manifestly ill-founded and must be
rejected pursuant to Article 35 § 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant did not submit a claim for just satisfaction or for costs
and expenses. Accordingly, the Court considers that there is no call
to award him any sum on these accounts.
FOR THESE REASONS, THE COURT
- Declares unanimously the complaint concerning
Article 8 admissible and the remainder of the application
inadmissible;
- Holds by six votes to one that there has been a
violation of Article 8 of the Convention;
Done in English, and notified in writing on 22 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following opinions are annexed to
this judgment:
(a) concurring
opinion of Judge Nicolaou;
(b) dissenting
opinion of Judge Malinverni.
C.L.R.
S.N.
CONCURRING OPINION OF JUDGE Nicolaou
The
domestic courts found that the applicant had not acquired a protected
tenancy of the flat and that, therefore, he had no right to purchase
it under the provisions of the Specially Protected Tenancies (Sale to
Occupier) Act 1991. As a result, although he was occupying the flat
lawfully, he was doing so only as a non-secure tenant. This meant
that the State, as owner, was entitled to immediate possession by
virtue of the Ownership Act 1996. Consequently, relying on the legal
provisions protecting the proprietary interests of the owner, the
domestic courts made a possession order but did so without examining
the issue, which the applicant had raised, of interference with his
right under Article 8 of the Convention. He had pleaded it by way of
defence to the State's action for possession and was, apparently,
seeking to prevent the making of a possession order altogether rather
than simply to defer it. But the latter must be taken as included in
the former; so there was good reason to examine the matter in its
entirety.
That
the flat had been, since 1991, the home of the applicant and his
family was undisputed. It was also clear that the applicant's
immediate eviction would, in the circumstances, constitute an
interference with his right to respect for his home. Such
interference was, undoubtedly, legitimate. As we have recently said
in the similar case of Ćosić v. Croatia (no.
28261/06, 15 January 2009):
“...the interference in question pursued the
legitimate aim of protecting the rights of the State as the owner of
the flat.”
However,
to be compatible with Article 8 of the Convention such interference
must also pass the proportionality test. “Home” is an
autonomous concept which may exist even where occupation lacks a
legal basis in domestic law (see Buckley v. the United Kingdom,
25 September 1996, § 54, Reports of Judgments and Decisions
1996-IV). The absence of a legal right may be the cause of a
possession order or, as here, the result. In either case the occupier
may have the right, under Article 8, to remain in occupation of the
property for some time thereafter. This aspect of the right to
respect for the home is obviously an important one, but it must be
seen and assessed in the context of proprietary and contractual
rights and within the principle of legality. The Convention requires
that the two competing interests be balanced by a judicial decision.
It is
obvious that in the present case the question of proportionality
meant, in practical terms, giving the applicant time so that he could
make suitable arrangements to obtain alternative accommodation. This
might have been achieved by an appropriate order for a temporary stay
of execution of the possession order with, in my view, the
possibility of reviewing the stay of execution in the event that it
proved inadequate.
As it
turned out, the domestic authorities did, for one reason or another,
grant the applicant time. It was more than ample. However, that did
not redress the situation. The applicant lacked certainty and
remained, throughout, at the mercy of the authorities when he was
entitled to a judicial determination of the matter. This requirement
is underlined in the following extract from McCann v. the United
Kingdom, no. 19009/04, § 50, 13 May 2008:
“The loss of one's home is a most extreme form of
interference with the right to respect for the home. Any person at
risk of an interference of this magnitude should in principle be able
to have the proportionality of the measure determined by an
independent tribunal in the light of the relevant principles under
Article 8 of the Convention, notwithstanding that, under domestic
law, his right of occupation has come to an end”.
I
agree, therefore, that there has been a violation of Article 8 of the
Convention in the present case.
DISSENTING OPINION OF JUDGE MALINVERNI
(Translation)
- I cannot
agree that in this case there has been a procedural violation of
Article 8 of the Convention. The majority have reached this
conclusion on the grounds that the civil court ordered the
applicant's eviction from his home without having determined the
proportionality of the measure. Thus, the applicant had not been
afforded adequate procedural safeguards (paragraph 45).
- Referring
to the case of McCann v. the United Kingdom (no. 19009/04,
paragraph 50, 13 May 2008), the Chamber states that any person at
risk of an interference with the right to respect for the home should
in principle be able to have the proportionality of the measure
determined by an independent tribunal in the light of the relevant
principles under Article 8 of the Convention, notwithstanding that,
under domestic law, his right of occupation has come to an end.
- On the
other hand, the Chamber emphasises that such an issue does not
automatically arise in each case concerning an eviction dispute. If
an applicant wishes to raise an Article 8 defence to prevent
eviction, it is for him to do so and for a court to reject the claim.
- The
Chamber's criticism of the domestic courts stems from their apparent
failure to strike a balance between the competing interests: on the
one hand, the owner's right to the peaceful enjoyment of his property
and, on the other, the applicant's right to respect for his home.
- In my
opinion, the only significant argument that the applicant could have
raised in support of his claim and that could have been examined in
the balancing of interests was his son's state of health. However, he
failed to rely on this before the lower courts and only did so before
the Supreme Court (paragraph 11). The courts below could not
therefore have known about this problem and they cannot be criticised
for failing to take it into account.
- An
owner of a flat, be it a private individual or the State, has the
right to dispose freely of that property. Thus, an eviction order
against a tenant occupying a flat owned by a third party issued on
the grounds that the tenant is occupying a flat without a valid legal
basis is not as such contrary to the Convention, regard being had to
the guarantees under Article 1 of Protocol No. 1 to the
Convention.
- Furthermore,
in the present case,
although the eviction order was issued in October 2002, it has not
been enforced to date. The applicant's eviction was adjourned on
several occasions owing to the illness of his son. No attempts at
eviction have been made since April 2005. This shows that the
national authorities have taken due account of the applicant's
personal situation.
- In my view,
the circumstances of the present case were not capable of
giving rise to an arguable case that would have required
further examination of the issue of proportionality by the civil
court which conducted the proceedings ending with an order for the
applicant's eviction.
