(With apologies to vegetarians, vegans, and non-lovers of Tarantino/Pulp Fiction)
In Pulp Fiction, John Travolta’s character explains to Samuel L Jackson’s that it is the “little differences” in Europe that make it interesting – they do things differently there. Because France has the metric system, the burger joint calls a “quarter pounder” burger a “Royale with cheese”. Zehentner v Austria, a judgment of the First Section of the European Court of Human Rights, demonstrates yet again that the ECHR has a different approach to mandatory rights to possession than the House of Lords has expressed in the trilogy of cases (Buckley, Connors, McCann and Cosic against Qazi, Kay, Doherty). It surely cannot be much longer before the now Supreme Court is required to revisit this issue. Should the Supreme Court now be dealing with Royales with (or without) cheese or remain wedded to their quarter pounders? As J noted, there are indications in Purdy that Royales with (or without) cheese may be the Supreme Court’s preference, but it has yet to rule again on mandatory possession proceedings.
Ms Zehentner owed a number of small civil debts in relation to work undertaken at her property in Vienna. In 1999, the District Court ordered a judicial sale of her property to satisfy those relatively small debts. Ms Zehentner was given notice of the proceedings and the judicial sale but did not attend. The property was sold in November 1999 to a company. In March 2000, Ms Zehentner had a nervous breakdown and there was evidence that she had suffered from paranoid psychosis since 1994. She made attempts through her legal guardian to have the enforcement proceedings suspended and/or set aside but these were refused on the basis that she had not exercised her right of appeal within 14 days of the auction. The Austrian courts found that the 14 day time limit was absolute and that, even though Ms Zehentner was not capable of taking part in the proceedings, the interests of the bona fide purchaser of the property took precedence.
Before the ECHR, Ms Zehentner claimed breaches of Article 1 to the First Protocol, and Articles 6, 8 and 13. The Court found the complaints admissible and proceeded to deal with their substance. The Court found violations of Article 8 and Article 1 of the first Protocol, and did not consider that the other claims raised separate issues.
On Article 8, the First Section proceeded in the now familiar way – the property was Ms Zehentner’s home; there was an interference with her right to respect for the home through the forced judicial sale and her eviction; that interference was in accordance witht he law. The court noted that States have a margin of appreciation in relation to whether an interference is “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 (at [56]). The margin, though, varies:
… 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. Where general social and economic policy considerations have arisen in the context of Article 8, 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 (see Connors, cited above, § 82 with further references). [57]
The procedural safeguards are important in determining the width of the margin of appreciation. And, referring to McCann:
In this context the Court has already held 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 of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention [59]
The First Section brushed aside Austria’s argument about legal certainty and protection of the bona fide purchaser which were not said to “… outweigh the consideration that the applicant, who lacked legal capacity, was dispossessed of her home without being able to participate effectively in the proceedings and without having any possibility to have the proportionality of the measure determined by the courts” ([65]).
there was, then, a violation of Article 8.
There was also a violation of Article 1 of the First Protocol on similar grounds concerning the procedural protections available to Ms Zehentner’s “property rights” (despite this right not, on its face, containing procedural protections). An interference with such rights must strike a fair balance between the demands of the general interest of the community and the protection of the individual’s fundamental rights; and the margin of appreciation is wide on this right. Although there were alternative avenues for Ms Zehentner in challenging thedebts because of her capacity: “… the Court is not convinced that this procedural mechanism, which requires conducting a number of consecutive sets of proceedings against each of the applicant’s creditors, offers adequate protection to a person lacking legal capacity” ([78]).
The members of the First Section were united in their view about the breaches. By a majority of 5-2, they awarded ms Zehentner EUR30k for non-pecuniary damages. Tha majority refused to allow pecuniary damages because the breach was procedural. The dissenting judgment on this issue is interesting as the dissenters would have given pecuniary damages sufficient to equate to restution in integrum partly because of th eoverlap between procedural and substantive breaches.
Royale with or without cheese anyone (metaphorically, of course)?