Tag Archive for 'ecthr'

I think they're trying to tell us something

Published
by
J
on 23/10/2009
in FLW case note and Housing law - All
. 2 Comments

The European Court of Human Rights has just given judgment in Paulic v Croatia (App. No. 3572/06), a case on Article 8 and possession proceedings. Given the unbroken trend of authority from Connors to Zehentner, via McCann and Cosic (all noted in the excellent and Tarantino-themed post by Dave, here), it shouldn’t be too difficult to guess how this case went.

Mr Paulic was a civilian employee of the Yugoslav People’s Army (“YPA”) who, in 1991, was granted the right to occupy (and purchase) a flat owned by the YPA. In July 1991, the Croatian state prohibited all land transactions involving property which was owned by the YPA. Despite this, Mr Paulic and his family took possession in September 1991. In October 1991, the possessions of the YPA (including the flat), passed to the Republic of Croatia.

In 1997, Mr Paulic applied to exercise the Croatian version of the Right to Buy and the Croatian state cross-applied for possession of the flat. In October 2000, the Municipal Court dismissed the Right to Buy claim and granted possession. The reasoning of the Court was that Mr Paulic did not have a tenancy, having entered into possession in violation of the July 1991 prohibition. Since Mr Paulic had no legal right to occupy the flat, a possession order had to be made. His appeal to the County Court was dismissed for similar reasons. A further appeal to the Supreme Court also failed as did a complaint to the Constitutional Court. At the date of the judgment of the ECtHR, he still had not been evicted as enforcement of the judgment had been postponed.

Mr Paulic applied to the ECtHR, contending that the requirement to make a possession order without any regard to his circumstances was a breach of Article 8. In particular, he relied on the fact that:

(a) the flat had been his home for more than seventeen years;

(b) he had been allowed into possession in the first instance.

The Government argued that there was no interference because:

(a) Mr Paulic had not yet been evicted;

(b) possession had been granted pursuant to the domestic law which regulated ownership and use of land. That domestic law fell within the margin of appreciation to be afforded to the State.

The ECtHR found that there had been a violation of Article 8. The property was clearly Mr Paulic’s home. Merely because he had not been evicted did not mean that there was no interference, that occured when the possession order had been made – Stankova v Slovakia (App. No. 7205/02), McCann v UK (App. No. 19009.04) and Cosic v Croatia (App. No. 28261/06). There was no reason to depart from those decisions.

The domestic courts had only considered the position as a matter of domestic law and, once satisfied that domestic law did not provide Mr Paulic with a right to remain, had “made no further analysis as to the proportionality of… his eviction” (at [42]), That was insufficient. The “guarantees of the Convention require that the interference… be not only based on the law but also be proportionate… to the legitimate aim pursued, regard being had to the particular circumstances of the case” (at [42]). No provision of domestic law should be interpreted and applied in a manner which is incompatible with the Convention (again, at [42]).

It went on to say that “any person at risk of an interference with his rights under Article 8 should be able to have the proportionality and reasonableness of the measure determined by an independent tribunal applying the relevant principles under Article 8″ (at [43]).*

It did accept, however, that a court only needed to consider Article 8 where the defendant raised such an argument and that, if raised it would be for the court to rebut the claim. The ECtHR did not accept that allowing occupiers to raise an Article 8 defence in this manner would have serious consequences for the functioning of domestic landlord and tenant law in any of the countries bound by the Convention (at [43]).

Accordingly, there had been a violation of Article 8.

For my part, I couldn’t agree more. What is particularly important (at least to my mind) if the decision (in line with Cosic and Stankova) that it is not for a domestic court to act in a manner which violates the Convention and a court cannot claim that it was merely applying domestic law as an answer to such a criticism. cf the discussion of s.6(2)(b), Human Rights Act 1998 in Doherty. As I’ve said previously, I don’t see how Kay et al can stand in the face of this consistent line of jurisprudence from the ECtHR and Paulic should provide further encouragement for those who seek to have the Supreme Court reconsider (as a panel of 9?) the decisions in Qazi, Kay and Doherty.

*(By way of footnote – para [43] of Paulic is lifted from Cosic (at [22] of that case) and goes slightly further than McCann (at [50] of that judgment). McCann only said that an assessment of the proportionality is required whereas Paulic and Cosic say that an assessment of the proportionality and reasonableness is required. It seems to me that Cosic and Paulic support a view that reasonableness is something different to proportionality).

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Way too secure

Published
by
NL
on 04/10/2009
in FLW case note, Housing law - All, Possession and Succession
. 0 Comments

Gauci v Malta [2009] ECHR 1280 [Link is to rtf]

Hat-tip to the Garden Court Bulletin for this one.

Mr G owned a property in Malta. It had been let under a 25 year tenancy agreement in 1975. On the expiry of that agreement, the tenants, who owed other property themselves, were able to exercise a right to new lease under under Maltese Act XXIII of 1979 as they were resident.

Under the 1979 Act, the maximum rent that the Rent Review Board could set for the premises was 420 euro per year. The market rent was assessed in 2002 at 280 euro per month. Mr G brought proceedings, complaining that “the lease imposed on him, as owner of the premises, which had been granted in emphyteusis at the time of the introduction of the new law, subject to inadequate compensation, infringed his rights under Article 1 of Protocol No. 1 to the Convention and was discriminatory and contrary to Article 14 of the Convention, since other premises, particularly those rented after 1995, were not subject to the same conditions.” There was no means available to Mr G to terminate the lease and succession rights for the tenants.

The Maltese courts found it was not an issue of deprivation of property but control of use which was legitimate in the the state’s margin of apreciation. In addition the fair rent could be reviewed every 15 years, subject to a two times cap.

The ECtHR held:

a restriction on an applicant’s right to terminate a tenant’s lease constitutes control of the use of property within the meaning of the second paragraph of Article 1. It was pursuant to a legitimate aim, but not proportionate. For an enforced relationship of landlord and tenant, the rent level set by the state was unreasonable as it allowed only a minimal profit.

In the present case, having regard to the low rental value which could be fixed by the Rent Regulation Board, the applicant’s state of uncertainty as to whether he would ever recover his property, which has already been subject to this regime for nine years, the lack of procedural safeguards in the application of the law and the rise in the standard of living in Malta over the past decades, the Court finds that a disproportionate and excessive burden was imposed on the applicant. The latter was requested to bear most of the social and financial costs of supplying housing accommodation.

There was no breach of Art 14 – discrimination.

Damages awarded on an equitable basis being the difference between set and market rent since 2000 and interest.

This was a pretty extreme statutory tenancy and rent control regime, considerably more so than Rent Act tenancies and the associated rent assessment schema, but I wonder if a challenge to the Rent Acts is tip-toeing through anyone’s mind?

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Evictions and Proportionality

Published
by
chief
on 09/02/2009
in FLW case note, Housing law - All and Possession
. 1 Comment

We’re a bit late with this one, and it is arguably quite a biggie (hat tip to Niki Goss who first pointed it out, to me at least, in the comments here).

Anyway, Cosic v Croatia is a decision of the European Court of Human Rights that should be of interest as both Connors and McCann are referred to as the Court reaches its conclusion that a possession order was a disproportionate interference with the Applicant’s Art 8 rights, because she was not given the possibility of having the proportionality and reasonableness of it tested.  In the process the Court gives what might be construed as “guidance” to the House of Lords.

Mrs Ćosić began working as a teacher in Croatia in 1966.  In 1970 she gave birth to a son.  As a single mother she was granted a specially protected tenancy.  In 1984 she was transferred to a school in a different town.  The new school provided her with a flat that the school had temporarily leased from the Yugoslav People’s Army.  This lease expired in 1990.  In 1991 the State took control of all of the YPA’s property and became the new owner of the flat.  Several requests by the school to have the lease extended were ignored.  However, Mrs Ćosić remained living in the flat and paid rent to the State each month.  This arrangement seemed to be working fine until 1999 when the State brought a civil action seeking her eviction.  In 2002 the Municipal Court, while noting her “unenviable position” (i.e. she had nowhere else to go), ordered Mrs Ćosić to leave the flat within 15 days.  She then went to the ECtHR arguing breaches of Arts 8, 6 and 14.  While her Arts 6 and 14 claims were declared inadmissible, she had greater success with the Art 8 claim.

The ECtHR quickly dismissed Croatia’s argument that there hadn’t been any interference with Mrs Ćosić’s rights because the eviction judgment had not yet been acted on [18].  The Court accepted that the interference was in accordance with Croatia’s domestic law and that it pursued a legitimate aim of protecting the rights of the owner of the property.

The question then became whether the interference was proportionate and necessary in a democratic society.  After setting out [81]-[83] of Connors v UK, the Court then noted that the domestic court had not considered the proportionality of the action being taken.  It then said, at [21] (emphasis added):

[T]he guarantees of the Convention require that the interference with an applicant’s right to respect for her 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.

At [22] the Court echoed McCann (although note the slight difference in wording):

In this connection the Court reiterates that 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 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, his or her right of occupation has come to an end.

Due to the absence of adequate procedural safeguards Mrs Ćosić’s Art 8 rights had been breached and she was awarded 2,000 Euro for non-pecuniary damages.

While there is little here from the ECtHR that is new, it is surely significant that, so soon after the House of Lords decision in Doherty, the Court has repeated in clear terms that Art 8 requires the proportionality of a possession claim to be tested, having regard to the personal circumstances of someone who is at risk of losing their home.  As the ECtHR has made clear previously, judicial review just doesn’t cut it.  I’ll leave you to consider what this might mean for mandatory grounds of possession.

The net result?  Surely there now has to be either a legislative solution or a seven-strong House of Lords decision to sort this all out.  Doesn’t there?

Selected previous posts on Article 8 and possession:

  1. Human rights and possession claims after Kay v Lambeth
  2. Possession and human rights (McCann)
  3. Wondering about McCann
  4. Notes on Doherty v Birmingham CC
  5. Second time around (Truro Diocesan Board of Finance v Foley)
  6. A post-Doherty appeal
  7. Ask and ye shall receive (Dixon v Wandsworth LBC)
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Expanding the Public Law defence, a bit

Published
by
NL
on 21/12/2008
in FLW case note, Housing law - All, Licences and occupiers and Possession
. 4 Comments

What Doherty v Birmingham City Council (Secretary of State for Communities and Local Government intervening) [2008] UKHL 57 actually means for a public law defence to possession claims, particularly summary possession, was the subject of London Borough of Hillingdon v Collins & Another [2008] EWHC 3016 (Admin). This is what was to have been a CMC in the Administrative Court, but turned, by the nature of circumstances, into a consideration of the scope and boundaries of the post Doherty defence. As we’ve previously noted, the House of Lords in Doherty did little to actually make things clear, so Hillingdon v Collins is an important judgment.

The case involved possession of caravan sites occupied by travellers on the basis of (minor) rent arrears and allegations of harassment and ASB, following service of Notices to Quit. The defendants filed defences, giving as grounds a mix of reasonableness issues for eviction, Art 8 rights being engaged, the Court to assess LBH’s reasons for seeking eviction under Art 8, disproportionality, denial of accusations of ASB, and incompatibility of summary proceedings.

The proceedings were transferred to the Administrative Court and stayed pending the appeal in Smith (On Behalf of the Gypsy Council) v Buckland [2007] EWCA Civ 1318. Following Doherty, the Defendants sought to amemd the Defence and Counterclaim to the following grounds, dropping the incompatibility point:

(a) Smith v Buckland is not binding with regard to Article 1 of the First Protocol

(b) Those rights were engaged when the Notices to Quit were issued and in these proceedings

(c) LBH , as a public authority, was required to act proportionately and the Court had to consider if a fair balance was struck;

(d) Notwithstanding the decision in Smith v Buckland the lack of an ability on the part of the Defendants to challenge the factual basis for a possession order is incompatible with Article 1 of the First Protocol

(e) The difference in treatment between dwellers on sites for gypsies and dwellers on other sites was discriminatory

(f) It was for LBH to evaluate the effects of the taking of proceedings, and the lack of alternative provision, and the Court should consider whether it had done so.

Judge Gilbert QC notes that these proceedings post-date the introduction of a consideration of reasonableness in making a decision whether to suspend a possession order made under the Caravan Sites Act 1968 (as amended by Housing Act 2004 in response to Connors). However, there is no option but to make the Order, until the HRA 2008 provisions come into force. Factual considerations can be addressed in the context of reasonableness in a decision to suspend or not, but not otherwise. And so, to Doherty…

Judge Gilbert then embarks on a consideration of Kay, Buckland and Doherty, quoting at length. From Doherty, he quotes extensively from the speeches of Lord Hope and Lord Walker. In Lord Hope’s speech, para 57 in particular is noted as introducing an additional element to the post Kay ‘gateway b’ public law challenge:

It will be for the judge to resolve any dispute that he needs to resolve about the facts and, having done so, to determine whether the decision to terminate the appellant’s licence on the grounds stated in its particulars of claim, and having regard to the length of time that the appellant and his family have resided on the site, was reasonable [Doherty para 57].

Lord Walker’s speech, cited at length, is taken to show:

(a) His speech, and the reasons for his sense of unease, bears out the point that the effect of Kay and of Lord Hope’s application of it in Doherty is not to enable scrutiny of LBH’s decision to obtain possession in the context of ECHR/Article 8;

(b) He confirms that the Kay gateway (b) test has broadened so that it narrows (without closing) the gap between HRA grounds and traditional judicial review grounds.

(c) He draws attention to the wisdom of having such a case heard in the County Court.

Judge Gilbert QC’s conclusions are that:

54 I consider that the effect of the speeches in Doherty is to widen the scope of the enquiry that may be made into decision making by an authority. I do not consider that the effect of the amendment of section 4 in 2005 undercuts the points of principle which are established in Doherty but I do consider that , as per Smith v Buckland, the fact that Article 8 can operate at the stage of considering whether or not to evict, still gives it effect within the domestic law framework when taken as a whole, as per Smith v Buckland. However I also consider that in the light of Doherty the observations in Smith v Buckland that the circumstances where such a defence can be made out as wholly exceptional have been overtaken by subsequent authority. They were justified on the basis of the previous Kay test, but not on the wider one which now encompasses a broader consideration of reasonableness.

55 I also consider that the test is no longer whether the claim on public law grounds is ” seriously arguable.” It is now , as per Doherty at paragraph 55, whether the decision was reasonable, in the sense of whether no reasonable person would think that recovering possession was justifiable.

56 I also consider in the light of Lord Hope’s speech that a judge, while he must eschew simply substituting his own judgement for that of the local authority, must grapple with whether it had material before it, and whether the decision was reasonable. He is not bound to consider the matter on paper, but has a discretion as to how he should conduct the hearing, within the limits set by Lord Hope’s speech. I draw attention also to paragraph 54 of Lord Hope’s speech, and the importance of the claimant authority justifying its decision to seek possession, and to his reference to Lord Brown’s concerns..

57. That approach has other practical effects:

(a) it will help the judge when he gets to the stage of considering whether or not to suspend possession. As already noted, at that stage he will have to weigh the case in favour of suspension against the case for it. Of course the fact that LBH will have a right to possession is a matter which must attract weight, but the degree of weight depends on many other factors, and since that is the relevant stage at which to address Article 8 issues, then proportionality will be of significance. An order for possession sought because an occupier is one month behind with the rent is a far less powerful one than one where the arrears have amassed over six months. An occupier who has been engaged in one drunken act of disorder during a row with his neighbour may be regarded as much less culpable than one who has inflicted serious physical harm and engaged in numerous threats. I do not intend to set out a prescriptive list, as there is a wide variation of relevant circumstances, and a wide variation of potential weight that can be ascribed.

(b) I regard it as artificial to have one judge address whether the authority acted reasonably when considering the wider Kay approach, and another one then addressing that issue again, or at least a closely related issue, at the suspension stage. I follow Lord Walker’s reluctance to see an Administrative Court judge having to hear oral evidence in a forum unsuited to it. There is no better tribunal, nor one more experienced in dealing with disputes of this kind in housing cases, than an experienced circuit judge sitting in the county court. I express the view that this matter should be heard by a circuit judge with experience of possession disputes.

The matter was remitted to the County Court, to be heard by a CJ with possession experience and directions were given for disclosure and witness evidence.

So Judge Gibert QC takes Doherty as confirming that a public law defence (on JR grounds) and a human rights defence have not been fused, so that consideration of the LA’s decision is not a scrutiny in the context of Art 8 (or other Article). The defence has clearly been taken here as extending to issues of fact in assessing whether the decision to bring proceedings was reasonable (in the sense that no reasonable person would consider it justified, not Wednesbury grounds). The proper venue is the County Court, but we knew that – although the direction for a CJ to hear it is interesting.

This is not a surprising version of Doherty, but it is, I think, quite a conservative one. Even in Lord Hope’s speech, here taken as the lead one, there are suggestions that proportionality is at least akin to a JR ground. But Judge Gilbert QC keeps a consideration of proportionality firmly out of a ‘gateway b’ public law defence, in favour of a quasi new ground of reasonableness defined as ‘a decision that no reasonable person would consider justified’.

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Housing and Human Rights: Kay in the ECtHR

Published
by
J
on 05/11/2008
in Housing law - All and Possession
. 4 Comments

From the Garden Court bulletin:

The ECtHR has invited the observations of the UK government on the application made by Mr Kay to the ECtHR, following his defeat in the House of Lords in Kay v LB Lambeth [2006] UKHL 10. The Court has asked for observations on the question of whether or not Mr Kay had “the opportunity to have the proportionality of [his] eviction… determined by an independent tribunal in light of the relevant principles under Article 8.”

We’ll all need to keep an eye on this one!

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