Lemo and others v Croatia [2014] ECHR 755 (10/7/2014)
Both the facts and the outcome in this case are highly reminiscent of Brezec v Croatia (see our note here). The applicants had occupied flats under protected tenancies from the 1970s until their eviction on 19/11/2010. The properties were initially publicly owned but the company which owned the properties (Mlini Hotels) became privatised at some point during the 1990s. At various points during the 2000s, the company sought the applicants’ eviction from their homes and despite arguments about the length of their occupation, the intended use of the flats as permanent accommodation and their likely homelessness, the national courts held that the applicants’ occupation was without legal basis and possession was granted to Mlini Hotels.
In finding that Article 8 was violated, the ECtHR found that no analysis had been undertaken of the proportionality of the eviction, with reference to the applicants’ arguments before the national courts and the fact that the owner had delayed several years before taking a position over the applicants’ legal entitlement to occupy their homes. Damages ranging from 5,500-7,500 EUR were awarded.
This case provides useful further grist to the Article 8/private sector mill. In McDonald v McDonald (our note here), the Court of Appeal noted that there was no constant or clear line of ECtHR cases demonstrating that Art.8 applied to the private sector. This case would be unlikely to shake the CoA’s view but it can only add to the weight of case-law when the matter is eventually considered by a higher court.
Dzemyuk v Ukraine ECHR 894 (4/9/2014)
The applicant is the owner of a property in Tatariv, Ukraine, the drinking water for which is supplied by a well drawing groundwater from two nearby rivers. In August 2000, the local council constructed a cemetery, whose boundary was situated within 38 metres of the well. Between 2001 and 2002, the Local and Regional Health Inspectorates concluded that the proximity of the cemetery to Mr D’s land did not meet health and safety norms and that there was a significant risk of contamination. A 2009 report concluded that the e-coli level within Mr D’s drinking water was unacceptably high. Although Mr D showed no signs of infection, he did suffer from hypertension and heart disease.
Between 2003 and 2008, proposals were formulated to relocate Mr D and his family or alternatively, the cemetery. However, neither of these proposals could be realised. Court proceedings resulted in an Order on 26/12/2003 for the Council to close the cemetery and to pay Mr D compensation. The Council failed to obey both this Order and the enforcement proceedings which followed. Mr D then brought his complaint to the ECtHR for breach of Art.8.
The first question for the Court was whether there was an interference with Art.8. Despite the lack of obvious adverse effects on Mr D’s health and the absence of evidence linking the rise in e-coli levels to the cemetery, the Court found that there was a sufficiently close link between the construction of the cemetery and the impairment of Mr D’s quality of life to engage Art.8. The Court had no problem in finding a violation of Art.8. The clear breaches of the 26/12/2003 Order and of Health and Safety Regulations resulted in an award of 6000 EUR non-pecuniary compensation.
We reported on the progress of R (JL) v SSD [2013] EWCA Civ 449 in the domestic Courts here. JL’s petition to the ECtHR for breach of Art.8 centred on the failure of the High Court to evaluate her proportionality defence at the time of the making of the possession order. To recap, the possession order was made before the decision of the Supreme Court in Manchester CC v Pinnock [2010] UKSC 45 and at a time when the Court was still bound by Kay and Doherty. The judicial review and the appeal to the Court of Appeal concerned the enforcement of the possession order.
Unfortunately for JL, the ECtHR was unimpressed by the argument that she was deprived of the necessary Art.8 safeguards. The Court commented at para.46:
The High Court fully considered the applicant’s longstanding mobility and ill-health difficulties; her daughter’s longstanding psychiatric disorder and the impact a forced eviction would have on her; the family’s need for particular and accessible accommodation; and the hardship they would face if required to move, but considered that those circumstances did not render it disproportionate to seek enforcement of the possession order. The applicant was able to appeal the decision of the High Court to the Court of Appeal. Consequently, it cannot be said that these proceedings were not properly equipped with the procedural tools and safeguards to conduct the proportionality review at the enforcement stage.
And at para.47:
The full and careful assessment of proportionality carried out by the British courts at two levels of jurisdiction was, in the Court’s view, adequate for the purposes of ensuring the protection afforded by Article 8 of the Convention.
The Court considered that JL was no longer a victim even though proportionality was not considered at the possession stage and that her complaint was manifestly ill-founded. The complaint was therefore declared inadmissible.
Aboufadda v France ECHR 348 (27/11/2014)
The applicants were owners of a property in France, which was confiscated following their son’s conviction for supply of cannabis and their own conviction for failing to demonstrate resources corresponding to their lifestyle. The domestic courts found that the applicants’ assets had been financed with the proceeds of drug trafficking and that the confiscation of the family home, albeit that the interests of a disabled child were at stake, was justified. The applicants petitioned the ECtHR for breaches of A1P1 and Art.8.
In declaring the complaints manifestly ill-founded, the Court held that the State enjoyed a wide margin of appreciation when pursuing measures aimed at the prevention of crime and disorder and to deter the dissipation and concealment of illegally obtained funds. As far as Art. 8 was concerned, the Court observed that the applicants had been given 18 months from the making of the confiscation order to find alternative accommodation.