Human Rights Update

Zammit & Attard Cassar v Malta [2015] ECHR 751

This is the latest in the sequence of cases dealing with rent controls and breaches of A1P1 (previous note here). The property in this instance was let under a commercial lease and in 2002, the applicants obtained a report valuing the yearly rent at 7,000 EUR. They later sought an increase from the prevailing rent of 862 EUR p.a. but the Rent Regulation Board dismissed the application, noting that the current rent was 40% in excess of the relevant 1914 levels. Despite the Government’s objections that a. the applicants’ predecessor freely entered into a bargain which he knew would have been subject to a restricted rent regime; b. the rationale of the rent cap was to secure business stability and c. the rent would increase in any event to 1,505 EUR by 2013, the Court found a breach of A1P1. The State failed to strike a fair balance between the needs of the community and the needs of the applicants, who were compelled to bear the unreasonable burden of supporting a commercial enterprise, at the expense of their property rights. 40,000 EUR in pecuniary damages were awarded.

 

Morari & Spiridonov v Republic of Moldova [2015] ECHR 671

Bolotiny v Russia [2015] ECHR 707

Two cases which add to the Court’s developing case law regarding compensation for failure to provide social housing in breach of court orders (see our previous note here).

In the first case, the applicants were police officers who were entitled to social housing from the State. The municipality failed to comply with court orders dated 27/2/2008 and 6/5/2008 requiring the State to provide the applicants with housing. The applicants therefore brought complaints to the ECtHR, alleging breaches of Articles 6, 13 and A1P1. The State sought to have the cases struck out of the lists following offers of compensation in the sums of 3,000 EUR and 3,500 EUR. The applicants’ claims for pecuniary and non-pecuniary losses were considerably higher and the Court agreed that the State’s offer did not represent the true extent of the applicants’ losses. The Court found breaches of Articles 6, 13 and A1P1 and awarded one of the applicants pecuniary damages of 10,493 EUR (the cost of alternative accommodation from April 2008 to date) and 3,600 EUR in non-pecuniary damages.

The second case concerned a victim of the 1986 Chernobyl disaster, who was granted the right, under a court order dated 15/11/2004, to additional housing from the State. Owing to a lack of available housing, the State failed to comply with this judgement and the judgement was varied to one awarding damages of 230,000 roubles (later increased to 547,400 roubles). The State continued to ignore the Order and the applicant brought his complaint to the ECtHR. The Court found breaches of Article 6 and A1P1 and ordered the State to pay the outstanding sums under the judgement, plus 6,000 EUR in non-pecuniary damages.

 

Sargsyan v Azerbaijan [2015] ECHR 588

The applicant was forced to leave his home in Gulistan, Azerbaijan in 1992 in the course of armed hostilities following Azerbaijan’s declaration of independence from the former USSR. He lived for several years in Yerevan, Armenia until his death in 2009 and this claim was pursued on his behalf by his dependants. The applicant possessed only limited documentation to confirm ownership of his home in Gulistan, including a marriage certificate, a residence certificate and his passport.

The applicant relied on the UN “Principles on Housing and Property Restitution for Refugees and Displaced Persons”  (the ‘Pinheiro Principles’), Article 2 of which provides: “All refugees and displaced persons have the right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived, or to be compensated for any housing, land and/or property that is factually impossible to restore as determined by an independent, impartial tribunal.

Notwithstanding the outstanding dispute over which forces exerted effective control over the territory, the Court found that the State had not displaced the presumption that it retained control and that the complaint fell under its jurisdiction. The Court also rejected the Government’s argument that it had not been proven that a building still existed at the time of entry into force of the Convention in 2002 and it found that the applicant had adduced sufficient evidence (albeit understandably sketchy) of his ownership of the building and surrounding area. Despite the unstable security situation in the area, the State had not done enough in accordance with the Principles to establish a mechanism for providing alternative housing or compensation while peace negotiations were underway. The Court therefore found that the applicant’s inability to access his home and visit the graves of his deceased relatives gave rise to breaches of A1P1 and Arts 8 and 13.

 

Couturon v France [2015] ECHR 619 (judgement in French)

The applicant was the owner of a castle in Corrèze and objected to the construction of a motorway 250 metres away from his home. The applicant complained that the noise disturbance from the passing traffic had led to a loss in the value of his property. However, even if the loss in value were accepted, the State had not failed to strike a fair balance between the needs of the community and the applicant’s Convention rights. The complaint under A1P1 was dismissed.

 

 

 

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, leases and others, Nuisance, Social tenancies.

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