Human Rights Round-Up

A selection box of ECtHR cases from the last few months:

Vrzić v Croatia 12/7/2016

The applicants were the owners of a property in Croatia. In early 2009, they secured finance from a private company and their property was used as collateral. The applicants defaulted on payment of the loan and the creditors began proceedings for a judicial sale of the property in late 2009. The Court granted the creditors’ request and the property was sold in 2012. The applicants lodged an appeal on the grounds that the sale price was disproportionately low but the Court rejected their appeal and ordered their eviction from the property. The applicants petitioned the ECtHR.

The Court found that Article 8 ECHR was engaged as this was a judicial sale (relying on Zehentner v Austria). The Court, however, found that the interference was proportionate because, unlike other cases that had come before the Court where a judicial sale had been held to be disproportionate, this case did not concern a socially-owned flat and a separate private interest was at stake in these proceedings. The applicants had willingly consented to offering their home as security for the loan and they could have taken steps to sell the property themselves at a market rate once they became unable to repay the loan. In the circumstances, there was no Article 8 or A1 P1 violation.

This case, in harness with the SC judgement in McDonald v McDonald, does curtail the circumstances where Article 8 or A1 P1 can be raised in a private context, subject to the comments in our earlier note on McDonald.

 

Vinniychuk v Ukraine 20/10/2016

The applicant was the tenant of a flat in Striyi, Ukraine, which was taken from her in October 1998 following proceedings brought by the municipality on the grounds of abandonment. The property was sold to a third party in 2000. The applicant argued that she had never abandoned the property and was absent from it because she was serving a prison sentence. She then sought to have the decision overturned and in 2005, the Court ordered the Council to provide suitable alternative accommodation for the applicant and her family. The applicant herself identified a suitable property in 2008 and her occupancy rights of that property were eventually regularised in July 2012.

The applicant complained to the ECtHR that, in violation of Article 8, she had been unlawfully deprived of her flat and the Council had failed to act timeously to redress their error. The Court was unable to deal with the lawfulness of the eviction, it having occurred more than 6 months before the application was lodged. However, the Court did find that the Council had offered no evidence of the steps it had taken to comply with the 2005 Order and that the delay had placed an unjustifiable burden on the applicant. The Court ordered damages of €4,500 for the Article 8 violation.

 

Ponyayeva v Russia 17/11/2016

Pchelintseva v Russia 17/11/2016

Tomina v Russia 1/12/2016

All 3 of these cases concerned violations of A1P1. In the first case, the applicant acquired the title to her property following a series of transactions, following which it emerged that one of the previous owners had been the victim of a fraud (a forged power of attorney authorising a third party to dispose of the property). The applicant’s title to the flat was later annulled and she complained to the ECtHR that her A1P1 rights had been violated. The Court agreed that the applicant had not been adequately compensated for the loss of her flat and ordered that the State reinstate her title to the flat or provide her with a suitable equivalent, plus compensation of €5,000.

In the second and third cases, the applicants were owners of properties that were reclaimed by the Municipality after it was discovered that title to the properties had previously been incorrectly transferred (in the second case, fraudulently so), even though the applicants were bona fide purchasers.

The Court found that the State had failed to strike a fair balance in each of the cases by placing an excessive burden on the applicants and found an A1P1 violation.

In relation to the first and second cases, it may appear harsh to expect the State to proof itself against fraud, which the Court seems to suggest in its conclusions. Ultimately, whatever the circumstances of the transactions, the State could not get away with passing the burden of those losses to the (wholly innocent) applicants and expect them to take the appropriate action against those responsible. NB there is a dissenting judgement from the same judge in both cases, who observes that the Court appeared too ready to disregard the traditional caveat emptor rule.

 

Kovacheva v Bulgaria 10/11/2016

Kalev v Bulgaria 10/11/2016

Dobrodolska v Bulgaria 13/10/2016

The applicants were all owners (or dependants of owners) of properties that were expropriated by the local Municipalities during the 1970s and ’80s in order to construct new buildings or a highway. The applicants were promised suitable alternative accommodation but these promises never materialised. The applicants complained to the ECtHR that their A1P1 rights had been violated. The Court accepted that the State had been guilty of unjustifiable and unexplained delay in allocating alternative units and found that their rights had been breached. In addition to pecuniary and non-pecuniary compensation, the Court ordered the State in 2 of the cases to deliver a suitable unit to the applicants within 3 months, in default of which further compensation would be payable.

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 Housing law - All, Mortgage possession, Possession.

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