Croatia, proportionality and history

Orlic v Croatia [2011] ECHR 974 (Application no. 48833/07) [Link to rtf file]

This is a European Court of Human Rights First Section decision on an article 8 case. Although not of immediate application, it is a useful restatement of the principle that where an occupier faces loss of their home by action by a public body, it must be possible for the proportionality of the eviction to be considered by an independent tribunal.

Mr Orlic had been allocated a flat by the Yugoslav Peoples Army in Croatia in 1991, about a month before  Croatia declared independence but 4 months after the Republic of Croatia had passed a law banning all transactions in property in Croatia owned by the Federal Republic of Yugoslavia. Mr O lived in the property from 1991.

In 1996, Croatia brought possession proceedings on the basis that it owned the flat and that the YPA grant had been contrary to the earlier law and so invalid. In 2000, the first instance court found for Croatia, on the basis that the state owned the flat and Mr O had no legal right to occupy it, the grant being null and void. Mr O’s appeal was dismissed on the same grounds. In 2007 the Constitutional Court dismissed his further appeal, upholding the reasoning of the lower courts. Mr O had been evicted, despite appealing eviction orders, in 2004. In the meantime, he had inherited a property elsewhere.

Mr O went to the ECtHR, arguing  a breach of Article 8.

Croatia argued that there was no Art 8 interference as Mr Ohad the other property by the time of his eviction and he hadn’t asserted his Art 8 rights in the national courts.

The ECtHR found that the case law was clear that the concept of ‘home’ was not limited to lawful occupancy. Mr O’s 13 years occupancy made the flat his home. The eviction was an interference with Article 8 rights.

The interference was in accordance with domestic law and justified as it pursued the legitimate aim of the economic well-being of the country.

On whether the interference was necessary in a democratic society, the court found that this was a matter of procedure and well as substance. Connors v UK sets out the relevant principles.

64. The Court notes that when it comes to the decisions of the domestic authorities in the present case, their findings were restricted to the conclusion that under applicable national laws the applicant had no legal entitlement to occupy the flat. The national courts thus confined themselves to finding that occupation by the applicant was without legal basis, but made no further analysis as to the proportionality of the measure to be applied against the applicant, namely his eviction from a State-owned flat. However, the guarantees of the Convention require that the interference with an applicant’s right to respect for his 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. Furthermore, no legal provision of domestic law should be interpreted and applied in a manner incompatible with Croatia’s obligations under the Convention (see Stanková v. Slovakia, cited above, § 24, 9 October 2007).

65. In this connection the Court reiterates that any person at risk of an interference with his right to home 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, he or she has no right to occupy a flat.

Further, Mr O had raised the issue of his right to a respect for his home and that this had not been taken up by the national courts.

69. Another element of importance is the following. In circumstances where the national authorities, in their decisions ordering and upholding the applicant’s eviction, have not given any explanation or put forward any arguments demonstrating that the applicant’s eviction was necessary, the State’s legitimate interest in being able to control its property comes second to the applicant’s right to respect for his home. Moreover, where the State has not shown the necessity of the applicant’s eviction in order to protect its own property rights, the Court places a strong emphasis on the fact that no interests of other private parties are likewise at stake.

The court was careful to draw a distinction between this case and “those who simply squat in others’ flats and occupy them.” The history and context of this case, including the circumstances of the Homeland War in Croatia, were relevant and could not be ignored.

There was a breach of Art. 8, Damages of 2,00 euros awarded. Mr O’s claim for pecuniary damages left to the national court, as under section 428a of the Civil Procedure Act an applicant may file a petition for reopening of the civil proceedings in respect of which the Court has found a violation of the Convention.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Housing law - All, Possession and tagged , , .

3 Comments

  1. I don’t understand what they distinction really is between O and a squatter, I assume that’s just obiter…

  2. As far as I can see the ‘clear distinction’ is that O was initially allocated the flat, and that the delay in evicting him made his title to the flat unclear.

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