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?