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).