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 . 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 - 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  (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  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: