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By J
29/03/2014

Infamy, infamy, they’ve all got it in for me*

Gustovarac v Croatia App. No, 60223/09 is a game-changer of a case. A possession case in which the European Court of Human Rights seems to be saying you don’t need a proportionality assessment.

Now, as you’ll all know, there is a line of European Cases, starting with McCann v UK, taking in Zehentner v Austria and meandering through a range of Croatian cases (Blecic, Orlic, Cosic, etc – see generally, here), which have stated that:

the loss of one’s home is a most extreme form of interference with the right to respect for the home.  Any person at risk of an interference of this magnitude 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, his or her right of occupation has come to an end.

Well, that might now be overstating matters. In Gustovarac, the applicants had, in 1972, been allowed into possession of a flat owned by the Yugoslav People’s Army. There didn’t ever seem to have been any formal tenancy agreement; rather, an employee of the YPA just gave them a hand written note authorising their occupation. In 1974, that same official was convicted of various offences relating to the misuse of his position, including, inter alia, the way he gave the flat away. The first applicant even testified against him at trial.**

Following the collapse of Yugoslavia, Croatia acquired the flat and issued possession proceedings. A possession order was duly granted and, as with so many other Croatian cases, the applicants applied to the ECHR contending that there hadn’t been a proportionality assessment.

Remarkably, however, the claim was dismissed. The earlier cases were expressly distinguished on the basis that the occupiers had had the legal right to reside whereas, in the present case, the applicants knew or must have reasonably known that they had no such right. In particular, as the first applicant had testified against the corrupt official, he must have known his right of occupation was tenuous at best. The domestic court was entitled to say that nothing could “trump” that illegality.

Unlike in the previous cases, where the applicants moved into the flats they occupied on the basis of decisions granting them the right to dwell in those flats, the applicants in the present case moved into the flat at issue on the basis of a handwritten note issued by an employee of the YPA. In the first place, the applicants ought to have known that such a note could have no validity before the law since neither of them had at any time been employed with the YPA in any capacity. Use of YPA flats could be granted to employees of the YPA only, whether military personnel or civil servants. Furthermore, the applicants must have been aware that a handwritten note on an ordinary piece of paper could not serve as a decision granting them use of the flat. Lastly, as early as 1974 the person who issued that note was convicted of a criminal offence in that connection and the first applicant was a witness in those proceedings. All these elements show that the applicants did not act in good faith when they moved into the flat in 1972.

However, the national courts concluded that because the applicants had acquired possession of the flat as a result of the criminal offence of a third person and had known about it, no further factors could justify their occupation of the flat. (at [37]-[38])

So, we appear to have an exception to the McCann line of cases. You don’t get a proportionality hearing if you’re not occupying in good faith and/or pursuant to a criminal arrangement. Where does that leave trespassers? Hard to say that trespass is in good faith and, in certain circumstances, it can even be a crime. I rather suspect we’ll see authorities trying to extend the scope of this exception. It might even give someone a chance to resurrect the approach Lord Scott wanted to take in Doherty.

 

 

 

* Not just in honour of Kenneth Williams; I find it quite amusing that someone has finally managed to lose an art.8 case in Strasbourg; it’s sort of like Southend v Armour, but in reverse. Infamous for being the first ones to lose in the face of oh-so-helpful case-law.

**Incidently, has anyone else noticed how much residential property the YPA seemed to own? Did anyone else in Yugoslavia own any property at all?

J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.

9 Comments

  1. JS

    I see it is a First Section case rather than the Fourth Section. Consistency issues as ever. I am not sure it is a game changer – consider the differences between Blecic and Connors – the court choosing rather to follow Connors .

    Reply
    • J

      Not sure that works. They expressly remind themselves of the previous case-law and then distinguish it. It’s not a case of inconsistency, but, rather, an actual decision not to follow the previous case-law.

      Reply
  2. Michael J

    Re property owned by the YPA, I am not versed in Yugoslav issues but I supposed that, even though they had a more “liberal” communist regime, the state (and its institutions) would have been the major owner and developer of housing, just like the case Yugoslavia’s neighbour to the east, Romania. The greater part of new housing developed from the 1960s onwards was owned and managed by the state, either through the national housing office or various minstries, enterprises, etc. In the drive to “modernise” some areas, these organisations built huge housing estates whose apartments were allocated to the workers (term including key personnel in education, defence, health, etc), according to their needs. The new occupiers would then pay rent and maintenance fees to the state.

    Reply
  3. S

    This is suprising, but in my view not that surprising when you consider what they have said before and the tension that exists between the principle that Art.8 doesn’t confer a right to a home.

    In Orlic, they said this:

    “[70] The court considers further that a clear distinction has to be made between the applicant in the present case and those who simply squat in others’ flats and occupy them.”

    And in Horie v UK, they said this:

    “[32] Secondly, the Court also notes that she had no right under art.8 of the Convention to establish a camp on the land. The Court has consistently held that art.8 did not require the contracting states to make suitable sites available to Gypsies ( Chapman v United Kingdom at [98]). Thus, even if the Court were to accept that new travellers were in an analogous position to Gypsies, it follows that art.8 cannot be interpreted so as to require the contracting states to tolerate unauthorised camping on land vested in the State.”

    Clearly, there will always be some exceptions (e.g. Yordanova). But that type of case is so far removed frome the ordinary trespasser one.

    Reply
  4. Chris Maynard

    I am not sure it is a game changer either.
    It took over 2 years from commencement of proceedings to the 1st instance judgment. Para 38 of the ECHR judgment reads: “Furthermore, in the present case the national courts did not restrict their findings to the fact that the applicants had no legal basis for occupying the flat at issue but also examined whether their right to dwell in the flat could be established on the basis of long-term use of the flat and the fact that they had paid the rent and utility bills … However, the national courts concluded that because the applicants had acquired possession of the flat as a result of the criminal offence of a third person and had known about it, no further factors could justify their occupation of the flat.” That looks very much as though there was a proportionality assessment in the national court and eviction was found to be proportionate. Trespassers may still get their day in court – they just can’t win if they rely on having been given possession by a crook whom they knew had no title to give it.

    Reply
    • J

      That isn’t quite how I read the judgment, but I accept that it isn’t entirely clear. The important point seems to me to be the recognition of the previous case-law and then distinguishing it. That suggest that the ECtHR is prepared to counternance a situation in which there isn’t a proportionality analysis.

      Reply
      • Chris Maynard

        The decision was on admissibility. I agree the judgment isn’t clear but, as I read it, the key issue for the ECtHR was whether the national courts were entitled to take the view that, where possession had been acquired originally by reason of a criminal act, the provision of national law which otherwise would have conferred upon the applicants a right to be treated as specially protected tenants did not apply; and the further factors relied upon by the applicants (unchallenged possession and payment of rent etc for 28 years) could not justify their continued possession of the flat. It is not a case of the ECtHR saying it was unnecessary to consider proportionality: instead it is one where, having weighed the applicants’ Art 8 right against the public interest in denying them a benefit from crime, an eviction was proportionate.
        The decision may be set alongside Kryvitska and Kryvitskyy v Ukraine App No. 30856/03 where the grant of the right to occupy was similarly defective ab initio but in that case there was no element of dishonesty and the Art 8 defence was ultimately vindicated. It may also be compared to Gladysheva v Russia App. No. 7097/10 where the applicant’s predecessor in title had obtained the flat by fraud, but the applicant herself had acquired title in good faith and her Art 8 defence was ultimately vindicated.
        Transposing the principle to England and Wales, the result in Gustovarac does not undermine, say, Manchester Ship Canal Developments Ltd v Persons Unknown [2014] EWHC 645 (Ch) vis a vis the entitlement to have proportionality considered.
        It is difficult to think of an analogous situation arising in this jurisiction because our laws in relation to estoppel and limitations operate differently (and equally within the margin of appreciation). But suppose in a possession claim a land owner could prove against the occupiers the ingredients of an offence under s 7 Criminal Law Act 1977 or s 144 of LASPO 2012, Gustovarac may be a trump card in his favour in relation to any Art 8 defence which managed to see the light of day. Even more so if he could prove a conviction, but on that hypothesis, civil proceedings may be unlikely anyway.

        Reply
  5. CJ

    I agree with Chris Maynard. I don’t see this as a game-changer at all.
    1. It is an admissibility decision;
    2. There is an assessment of proportionality – albeit very brief – see para 40;
    3. On the evidence the applicants had, at a later stage, two other flats in Pula(!);
    4. The appliants had obtaine dthe flat by means of a criminal offence of which they were well aware (one of them having given evidence at the trial!!);
    5. It does not contain a full review of previous case-law. None of the Gypsy/Roma/Traveller cases are mentioned, all of which involved trespass and all of which involved a finding of breach of article 8 (never mind a finding that there needed to be a proportionality assessment):
    Connors v UK
    Yordanova v Bulgaria
    Buckland v UK
    Winterstein v France (NB this case currently only available in French but see European Roma Rights Centre summary at: http://www.errc.org/article/winterstein-and-others-v-france/4246 )
    My summary would be that this is a case which is rubbish on its facts and there was no way the Court were going to let it through.
    CJ
    ..and if we get hold of an English version of Winterstein we will let everyone know!

    Reply
    • J

      There isn’t going to be a full English translation of Winterstein. I’ve spoken to the Court about it. There will be a partial English summary only.

      Reply

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