Housing and Human Rights Round-up Part II

Three more housing-related cases have been decided recently by the ECHR:

Bjedov v Croatia (29/5/12)

Mrs Bjedov was granted a joint tenancy of a ‘specially protected’ flat in Zadar, Croatia in 1975 and she became the sole tenant after the death of her husband in 1994. Since 1991, Mrs B had been living with her husband in another property and she moved to Switzerland after her husband’s death, returning to Croatia in 1998. Mrs B was unable to return to her flat as it had been occupied by trespassers from 1991 onwards.

Mrs B was eventually able to move back in July 2001 and she then applied to purchase the flat from the Municipal Authorities. The Authorities counterclaimed for her eviction from the flat and the Municipal Court dismissed the claim and allowed the counterclaim on 28/4/06. The Court held that her absence from the flat for over 6 months was unjustified and that the absence of any legal proceedings against the trespassers demonstrated a lack of an intention to return. Mrs B’s appeal was unsuccessful but she argued before the Court (at the enforcement stage) that her eviction would be both inhumane and degrading as she could not afford to live anywhere else, she was frail, elderly (she was in her seventies), in poor health and death would result from the eviction (supportive medical evidence was provided).

Nevertheless, the Municipal Court decided on 11/5/11 to proceed with enforcement but the warrant had yet to be executed when the ECHR heard the case. Mrs B argued before this Court that Croatia had breached her rights under Art 8.

The Government argued before the ECHR that notwithstanding Mrs B’s claims of infirmity, she had never approached the local welfare centre, which was prepared to arrange a nursing home for Mrs B if she were evicted from her flat. Mrs B pointed out in response that the costs of a nursing home would be prohibitive, both for her and for her children, who would be expected to support her.

The ECHR concluded (at para.68) that the Municipal Court in the course of the enforcement proceedings had ordered her eviction without determining whether her eviction was proportionate or necessary in a democratic society, particularly when there was a real possibility of irreparable harm to Mrs B’s health. The Court also found that the offer of nursing care was speculative rather than real.

The enforcement process was an inadequate mechanism for the adversarial examination of complex legal issues and the Court held that Mrs B’s Article 8 rights had been breached.

The ECHR also made this interesting comment (para 70):

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 her 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.

Damages of EUR 2000 and costs were awarded.

Comment: Bjedov is potentially a very useful case in the context of applications to suspend warrants when new evidence is presented to a Court that raises fresh Article 8 issues. It is difficult to tell from this judgement whether Mrs B argued in 2006 that it would be disproportionate to evict and whether the Court at that stage considered, for instance, the overall length of the tenancy. However, it would appear to be insufficient on the strength of this judgement for a Court to ignore new evidence at the warrant stage and to state, for example, that the main proportionality issues had been dealt with in the course of the possession claim.

Jarnea and others v Romania (31/5/12)

The applicants were owners of properties which had been let to tenants under agreements concluded with the State. The applicants complained that they were unable to receive the rent that was due to them and they commenced proceedings in the local courts for the tenants’ eviction. The courts refused to allow the evictions as they considered themselves bound by legislation which provided for a 5-year extension to the tenants’ agreements.The applicants petitioned the ECHR for compensation for breach of their rights under Art 1 Protocol 1.

The ECHR rejected the government’s argument that because the extension of the agreements was in the tenants’ interests, it was therefore in the public interest for the applicants to be deprived of their possessions. It found there to be a breach of Art 1 Protocol 1 and awarded EUR 5000 compensation to each applicant.

Costache v Romania (27/3/12)

Mr C petitioned the ECHR for breach of his rights under Articles 3 and 8 of the Convention by reason of the State’s failure to remedy his inadequate housing situation and to allow him to remain in living conditions which were, on Mr C’s case, inhuman.

Mr C struggled to find his own accommodation following the death of his father in 2001 and he moved into a deserted stable with his partner (in either 2003 or 2005). Mr C suffered from hepatitis and brain damage resulting from a stroke and visits conducted by Social Services inspectors to the stable confirmed that it lacked sanitation and functioning utilities and that it was unsuitable for habitation. The couple were placed on the waiting list for rehousing and they were eventually relocated to suitable accommodation at the end of 2007.

The Court noted that there was no right under Article 8 to be provided with a home (Chapman v UK) except in the limited circumstances where an applicant’s serious personal circumstances created a positive obligation on the State to act. Notwithstanding the applicant’s serious health problems, the Court found that the State had not authorised or arranged for Mr C to occupy the stable by way of social housing. It merely allowed him to live there until his housing situation was resolved. Mr C was eventually prioritised for a tenancy in 2007 and the Court concluded that the State had acted within the correct margin of appreciation for the distribution of its housing resources.

The application was found to be inadmissible.

 

 

 

 

 

 

About SJM

SJM is partner and head of the housing and public law department at Miles and Partners LLP, based in London E1.
Posted in Allocation, Homeless, Housing law - All, Possession.

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