Winterstein v France 17/10/13 (judgement in French only)
The applicants in this case were travellers who were part of a community that had occupied land on a site (known as bois du Trou-Poulet) in the Herblay region of France and had made it their home over a period of 30 years. In 2003, this area was designated a protected conservation area and on April/May 2004, the Local Authority commenced proceedings for the community’s eviction from the land.
Although the applicants received a favourable hearing at first instance, the decision to evict was upheld on appeal. The Courts found that the decision was within the framework of the law, the lengthy period of occupation did not confer on the applicants a legal right to occupy the land and moreover, their right to call themselves ‘travellers’ was called into question by the amount of time they had spent there. After the Cour de Cassation declined jurisdiction, various households were relocated either to alternative sites or to ‘bricks and mortar’ accommodation.
The applicants to the ECtHR comprised households who had remained on site, others who had been relocated to social housing and the remainder who had left the region. They relied on Article 1 of Protocol 1 and Articles 3, 8 and 14 of the Convention.
The Court found that the applicants had established the bois du Trou-Poulet as their home within the meaning of Article 8 and that the Order for their eviction was an interference, albeit one that pursued a legitimate aim by reason of the conservation proposals.
The question was therefore whether the eviction was proportionate and necessary in a democratic society. The Court reminded itself of the decision in Yordanova (see our note here) and noted in that case that inactivity on the part of the Bulgarian authorities had, over many years, allowed a Roma community to become established and to thrive on land that they occupied illegally. The Grand Chamber accordingly adopted the reasoning of the Court in Yordanova and found that the national Courts, in ordering the applicants’ eviction from the bois du Trou-Poulet, had similarly failed to undertake an adequate proportionality exercise. Furthermore, special consideration had to be shown towards disadvantaged and vulnerable groups such as the traveling community, by either regularising their occupation of the land or failing that, by making offers of rehousing (para.160).
In this instance, the needs of the families relocated to social housing had been met, which left those who remained on site and those who had left the region. The Court noted that the situation of those groups remained precarious and it reserved the question of damages.
The Court rejected the complaints under A1P1 and Art. 3 and found that no separate issue was raised by Art.14 (although it is useful to recall that States are also required to take account of the needs of travellers as a disadvantaged group for the purposes of that Article-see e.g. DH v Czech Republic para. 207)
Between 1992 and 2005 the applicant shared a property in Croatia with her husband. The parties divorced in 2005 but they continued to occupy the family home together. A Court in 2009 established that the parties’ shares in the property was 2:1 in favour of the husband, who then applied for a judicial sale or in the alternative, a partitioning of the premises.
An expert’s report was commissioned, which concluded that a partitioning of the premises was impossible. Ms Z did not dispute the expert’s oral evidence and on 22/4/10, the Municipal Court ordered a sale of the property. Ms Z appealed unsuccessful and the property was sold on 18/9/12 with Ms Z ordered to vacate the premises.
Ms Z complained to the ECtHR that the judicial sale of the premises interfered with her right to respect for her home and with the peaceful enjoyment of her possessions, contrary to Article 8 and Article 1 of Protocol 1. The Court gave the complaints short shrift. Ms Z had had opportunities to object to her ex-husband’s partition plan, to cross-examine the expert and to raise arguments before the national courts that the proceeds of sale were insufficient to fund a suitable alternative property. However, Ms Z failed to take advantage of these opportunities and it was therefore impossible to say that the eviction was not proportionate or that there was a breach of A1P1.
There was no violation of the Convention and a reminder instead of the Court’s limited powers to deal with new or contested evidence.
Ms S was a specially protected tenant of a flat in Croatia, which she and her family were forced to vacate in 1991 following a bomb alert. Temporary accommodation was granted to Ms S’s husband but the parties separated in 1992 and she and her son continued living in the flat. The husband’s occupation rights were terminated in 2000 and eviction proceedings were brought against Ms S, which concluded with an order for her eviction in 2008. An appeal was dismissed in August 2009, despite Ms S’s assertions that 1) she had been promised a specially protected tenancy to replace the one she had lost through no fault of her own; 2) the duration of her occupation of the flat and 3) she had been reassured she had nothing to worry about.
The key question for the ECtHR was whether the interference was proportionate to the aim pursued. The Court accepted the representations made by Ms S and referred to the earlier case of Bjedov v Croatia (see our note here). In the face of Ms S’s strong arguments that her eviction was disproportionate, the national authorities had not discharged the burden of justifying the eviction as necessary and it was not enough merely for the courts to find that her occupation had no legal basis. Ms S had therefore been deprived of the requisite Art. 8 procedural safeguards. Damages of 3000 EUR were awarded.
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