Human Rights Round-up

3 cases have recently been decided by the ECtHR Chamber

Busuioc v Republic of Moldova [2013] ECHR 684 (16/7/13)

The Applicant (B) complained to the Court under Arts 3 and 8 ECHR about the State’s failure to protect her and her two children under the provisions of Moldovan national law from domestic violence perpetrated against them over several years by B’s former husband, VB, when they failed to order his eviction from the flat which they occupied together.

The parties had divorced in 2007 but B was repeatedly beaten by VB after their divorce. B’s application to have VB evicted from the flat was heard by the Supreme Court on 20/5/09, who noted that the parties had shown the capacity for reconciliation, that there had been insufficient evidence of violence in some instances and in others, there was evidence of provocation. The Court concluded that the parties’ interests could be protected adequately by partitioning their occupation of the flat.

B applied to the Courts again when the violence continued and she obtained medical evidence of her injuries. Nonetheless, the Moldovan Courts found that there was no evidence of harm to the children, that B had the benefit of a protection (or non-molestation) order and that VB would otherwise become homeless if his eviction from the flat were ordered.

The ECtHR found that the local Courts had failed to protect B and her children adequately. Firstly, the allegations of rape were sufficiently serious to justify a full criminal investigation, which ought to have proceeded even though B subsequently withdrew her complaint. Secondly, the State’s failure to act meant that B was exposed to an intolerable level of anxiety and suffering in having to confront her assailant in her own home. Accordingly, Article 3 was violated and the Court held that VB’s potential Article 1 Protocol 1 property rights over the flat could have been protected by a temporary eviction order. Thirdly, it followed that the State had failed to protect B’s physical and psychological integrity and that there had been a violation of the positive duty under Article 8 (applying X & Y v Netherlands). B was awarded 15,000 EUR in non-pecuniary damages.

Comment: it is noteworthy that Moldovan national law provided for a perpetrator’s eviction from property in cases of domestic violence. The ECtHR observed that States enjoy a wide margin in terms of the measures to be adopted in complying with Arts 3 and 8. However, it is obvious that the Moldovan Courts’ decisions were weighted far too heavily in favour of the perpetrator and there does now appear to be a legal consensus on a victim-centred approach to resolution of DV disputes.

Brezec v Croatia [2013] ECHR 705 (18/7/13)

The applicant (B) took up occupation of her publicly owned flat in Dubrovnik in 1970. B no longer possessed a copy of her original agreement but she maintained that her entitlement to occupy the flat could be supported by witness evidence. On 9/7/1997, the State sold the building containing B’s flat to Mlini hotels, a private company. On 9/5/05, the company began proceedings for B’s eviction from the flat on the grounds that B had no legal basis to occupy the flat. The relevant law merely stated: “An owner has the right to seek repossession of his or her property from a person in whose possession it is.” After several hearings and appeals, B’s eviction took place in November 2010.

B applied to the ECtHR alleging a violation of Article 8 ECHR. The Court found that the Croatian Courts had limited themselves to finding that B’s occupation was without legal basis without proceeding to analyse whether B’s eviction from the flat which she had occupied for 40 years, while paying rent, was proportionate. The Court also noted that the company did not raise any issue about B’s right to occupy the flat when it purchased the property and it delayed 8 years before taking proceedings.

The ECtHR found that there had been a breach of the procedural safeguards required by Art 8 and that B’s rights had been violated. No damages were awarded as B had failed to respond to a Court direction within the time limits.

Comment: this case provides further evidence of the applicability of Art 8 to the private sector (see for example our notes on Pelipenko and Buckland here and here). Furthermore, it is also interesting that lengthy periods of unchallenged occupation are likely to be relevant when a Court considers proportionality under Article 8.

Rousk v Sweden [2013] ECHR 746 (25/7/13)

Mr R was the director of a company who, between 2002 and 2003, ran up income tax debts in the region of 27000 EUR. The Swedish Enforcement Authority applied for an order for sale of the family home and at the same time, R challenged his tax assessment through the appeal courts. R and his wife were eventually evicted from their home following the sale of the property at public auction on 22/10/03, despite R’s attempts to have the sale postponed. R petitioned the Court of Appeal and the Supreme Court on the grounds that it was disproportionate to evict him for a debt which, in R’s estimation, had been reduced to about 800 EUR. However leave to appeal was refused and R was reimbursed the sum of 61000 EUR from the sale.

Following R’s application to the ECtHR, Sweden attempted to have the application struck out from the lists once it had made an offer of settlement of 80000 EUR. The Court refused the State’s request, observing that the offer was not accompanied by an admission that a violation of the Convention had occurred. On its examination of the merits, the Court found that there was a violation of R’s Article 1 Protocol 1 rights. By the time of the eviction, the State could have satisfied itself that R’s enforcement debts amounted to about 800 EUR and it could have taken alternative enforcement action,  which would have avoided the loss of R’s home.

In respect of R’s Article 8 complaint, the Court found that R was unable to pursue his appeal to the higher courts in an effective way because his eviction and the sale had already taken place, in circumstances where there was genuine dispute about the amount of tax debt owed to the State. This meant that R had been deprived of the benefit of the requisite Article 8 procedural safeguards.

In terms of just satisfaction, R was awarded 65000 for pecuniary damage and 15000 for non-pecuniary damage.

Comment: applying the facts of this case to a domestic example, might it be disproportionate to evict where there is a pending housing benefit appeal which, if successful, could significantly reduce or extinguish the arrears which have resulted in the claim for possession? It should be noted that R suffered from a serious depressive condition and this might have been an aggravating factor in the Court’s proportionality assessment. However, this is a useful case to rely on where there are disputed arrears in an Article 8 or A1P1 scenario.

 

 

Posted in ASB, FLW case note, Housing law - All, Licences and occupiers, Possession and tagged , .

About SJM

SJM is partner and head of the housing and public law department at Miles and Partners LLP, based in London E1

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