Two interesting cases have been delivered by the ECHR in the last few weeks: Mago and others v Bosnia-Herzegovina and Yordanova and others v Bulgaria.
Mago
The applicants in Mago held tenancies for life of flats within Bosnia-Herzegovina (with the exception of Mrs Mago, whose husband was the tenant) and they were compelled for varying reasons to leave their homes following the outbreak of the war in Bosnia-Herzegovina in 1992. Security of these flats could be lost in a limited range of circumstances, including where the flat was left unoccupied for a continuous six month period or more. Once the tenants left, their properties were treated as abandoned by the authorities.
After the end of the war, the applicants made claims for restitution of their former homes. The Statute under which they made these claims contained an exception for those who served in foreign armed forces after 19/5/92. The majority of the applicants were members of the Yugoslav People’s Army and their claims and appeals were dismissed because they fell foul of this exception. The applicants petitioned the ECHR alleging breaches of Art 1 Protocol 1, Article 8 and Article 14.
The Court held that there had been no violation in three of the complaints as the applicants in question had been provided with alternative flats in Serbia and Montenegro. Although the deprivation of property rights might in normal circumstances lead to a finding of a violation, the exceptional circumstances of the case and the fact that the loss of the accommodation was the result of war and the dissolution of the former Federal Republic of Yugoslavia meant that the Respondent was under no obligation to make reparations under Art 1 Protocol 1 (para 104)
In Mrs Mago’s case, the Court held that the exception had been incorrectly applied as she was entitled on her divorce from Mr Mago to inherit the rights to the flat. Mrs Mago was not involved with any foreign forces and the Court accordingly held there had been a breach of Art 1 Protocol 1. The two remaining applicants (Radovic and Krstevski) had been members of the VJ forces and the Court accepted the argument that membership of certain armed groups depended largely on one’s ethnic origin. The Court held that the measures depriving the applicants of the right to restitution had the effect of treating individuals differently on ethnicity grounds and there could be no justification for deprivation in these circumstances. The Court found a violation of Art 1 of Protocol 1.
The overall award ranged from EUR 58000 to 90000.
Yordanova
This claim was brought by members of the Bulgarian Roma community, who inhabited vacant land in a district of Sofia from the 1960s onwards and constructed tenements (without the permission of the authorities) for between 200 and 300 people. The State sold the land occupied by the community to a private investor in 2006 and the Courts ordered the community’s expulsion on the grounds that they had no proprietary interest in the land, despite the time they had already lived there with the State’s acquiescence.
Nevertheless, the eviction was delayed pending a decision whether they should be rehoused and the applicants in the meantime petitioned the ECHR on the grounds of breaches of Art 1 Protocol 1, Articles 3, 8 and 14.
In deciding under Art 8 whether the authorities were pursuing a legitimate aim, the Court rejected the applicants’ argument that the State was motivated by a racist agenda and it accepted that the buildings were unlawfully built, that they were structurally unsafe and sub-standard and that there were inadequate sanitary facilities.
The relevant question for the Court was whether expulsion was necessary in a democratic society. The Court noted that alternative methods of dealing with the risks to health and safety had not been properly explored (for example legitimation of the community’s occupation of the land, improving sanitation and providing adequate re-housing). The Respondent was also criticised for describing the risk of homelessness as “irrelevant” when the principle of proportionality required due consideration to be given to the consequences of removal (para.126).
Furthermore, the Court recognised (para. 129) that “Such social groups, regardless of the ethnic origin of their members, may need assistance in order to be able effectively to enjoy the same rights as the majority population…..In the context of Article 8, in cases such as the present one, the applicants’ specificity as a social group and their needs must be one of the relevant factors in the proportionality assessment that the national authorities are under a duty to undertake.”
This factor provides an important qualification to the principle that there is no duty under Article 8 to be provided with a home and that “an obligation to secure shelter to particularly vulnerable individuals may flow from Article 8 of the Convention in exceptional cases”.
Accordingly, the Court held there to be a violation of Article 8 and it declared that either the 2005 order be repealed or it be suspended pending implementation of Convention-compliant measures (the Court having recognised that Art 8 gave no right to occupy land unlawfully in perpetuity). No damages were awarded.
Footnote
The ECHR has recently posed questions to the parties in the controversial night-time care case of McDonald v UK, namely:
1. Did the withdrawal of the night-time care service interfere with the applicant’s right to respect for her private life under Article 8 of the Convention? If so, has there been a violation of Article 8 of the Convention (a) from 17 October 2008 to 4 November 2009; and (b) from 4 November 2009 onwards?
2. Was the respondent under a positive obligation under Article 8 of the Convention to provide the applicant with a service which enabled her to live with dignity? If so, in withdrawing the night-time care service was it in breach of this obligation?
We’ll stay alert for any developments in this one.
In Gypsy and Traveller cases the domestic courts have been very reluctant to make any link between eviction and homelessness even when the same local authority are involved in both matters e.g. the argument, why evict when you haven’t yet resolved the homelessness application? However in Yordanova the ECtHR see that link as essential. I think we are going to be referring to this case extensively. Also very interesting in the emphasis on the need for Bulgaria to actually change the law.
This feature of the Court’s decision is a result of the Protocol 14 and Interlaken process, which recommended that Courts identify structural problems in their judgements. The Committee of Ministers’ 2011 Annual Report refers to a number of ongoing cases where remedies in civil proceedings have been ineffective (Bulgaria v Kitov/Djangozov/Dimitrov) even though mistreatment of the Roma community doesn’t appear to be an issue
BTW for an extensive discussion on Yordanova see:
http://www.travellerstimes.org.uk/blog.aspx?n=91ed7dde-7b7d-4b62-bd0d-9ad1dcaaa2e5&h=False&c=f1b1c82c-0f3c-4edf-98cd-502ea80ed8fa&
I’m not sure Yordanova really takes us all that further.
First, theere was only a violation because the procedural requirements of proportionality hadn’t been considered. They didn’t actually say that the eviction would be disproportionate. Nor is it clear that it would be. At para 131 they note that “Article 8 does not impose on Contracting States an obligation to tolerate unlawful land occupation indefinitely.”
Second, they draw a distinction between this case – where a whole community is being evicted from land they have occupied for 40 years – “from routine cases of removal of an individual from unlawfully occupied property” [121]. In this country such circumstances are going to be rare (albeit not unheard of; I’d be interested to have known what Strasbourg thought of Dale Farm).
Third, what they say at [129] is subsequently qualified at [131] by saying:
“Article 8 does not in terms give a right to be provided with a home (see, Chapman, cited above, § 99) and, accordingly, any positive obligation to house the homeless must be limited (see O’Rourke v. the United Kingdom (dec.), no. 39022/97, ECHR 26 June 2001). However, an obligation to secure shelter to particularly vulnerable individuals may flow from Article 8 of the Convention in exceptional cases”.
The positive obligation under Article 8 is an incredibly high hurdle to cross and the courts have repeatedly held that it is unlikely to be crossed unless you are close to a breach of article 3.
Thus, I don’t think this case is as of much assistance as it may first a ppear.
By the way Dale Farm is just the tip of an iceberg. Evictions of Gypsies and Travellers from unauthorised encampments take place on a weekly basis.
Obviously the proof of the pudding and all that… but certainly in Gypsy/Traveller cases the domestic courts have been very reluctant to link homelessness and eviction (involving the same authority) though we have been plugging away for ages about how they must surely be linked. In Yordanova the ECtHR make that link central. If the authority had come up with reasonable offers of alternative accommodation (as they said they would do) then that would have sunk the applicants’ case, despite their 40 years occupation. Also length of time….I am acting for an Irish Traveller who stops on unauthorised encampments but wants an authorised pitch and who has been resorting to the local authority’s area since 1982. I obviously appreciate that ‘positive obligation’ is a very high hurdle but I don’t think we need to seek to attain that.
For Gypsies and Travellers I think Yordanova presents very interesting possibilities. You guys will have to assess how it pans out elsewhere.
Unfortunately, I think you will probably have to meet the positive obligation hurdle because that is what, on my reading (albeit I concede in true Strasbourg fashion it isn’t entirely clear), Strasbourg meant as they referred to O’Rourke.
All I think they are saying is that the question of re-housing is relevant to the proportionality balance and must be considered by a court to meet the procedural requirements of Article 8. However, it will only render an eviction of an unlawful occupier disproportionate if there is a positive obligation to house them under Article 8.
Having said that I may be wrong and it is certainly worth having a pop with.
Let’s put it this way… if we had said ‘ They’re the House of Lords so they must be right’ at the Qazi v Harrow stage, we wouldn’t be where we are now. So, avoiding any further academic ping pong, ‘have a pop at it’ is what I recommend.
It is important to remember that States are afforded a wide margin of appreciation in the performance of their Convention obligations and the Court considered that Bulgaria, in declaring the risks of homelessness to be irrelevant (because Roma are habituated to an itinerant lifestyle, presumably) fell outside these margins.
The Court’s remark that communities such as the Roma may need assistance in enjoying the same rights as the majority population is therefore central to this case. Does it mean that the Authorities ought to assist in integrating the Roma into society by securing accommodation? Or ought they to take steps to preserve the community’s lifestyle and their unique sense of identity (like CJ’s Irish traveller)? Bulgaria did neither and it is interesting that the Court’s declaration is set out in broad terms to leave open the possibility that their occupation of the land might be regularised.
I think that the Yordanova judgement may have crystallised the theory of equal treatment of the legal philosopher, Ronald Dworkin. Dworkin argues that coercive government can only act legitimately when its resources are distributed irrespective of the circumstances of its citizens and when it shows due regard for citizens’ freedom of choice.
So I would agree with CJ that Yordanova opens up a number of possibilities (at least in an ideal world).