Housing and Human Rights lessons from Strasbourg (3)
[2008] JHL 14
Article 6
Article 6(1) provides
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
Delay and Enforcement
Initially, the largest group of housing cases in which Article 6 was successfully used were Italian cases involving delays in evicting tenants. Although Italian laws staggering evictions do not by themselves fall foul of the ECHR, the ECtHR has found that the Italian authorities have failed to apply those laws. In Di Mauro v Italy a tenant complained about the length of possession proceedings based upon rent arrears. The landlord commenced proceedings in March 1984. They continued until May 1997 when the Court of Cassation quashed a Court of Appeal judgment and remitted the case to a different division of the Court of Appeal. In December 1997 the proceedings lapsed because neither party resumed them. The ECtHR found that proceedings had not been heard within a reasonable time and that there had been a breach of Article 6(1).
Failure to allow enforcement of a judgment also breaches Article 6. This was set out clearly in Sorrentino Prota v Italy where the applicant obtained a number of possession orders against tenants. However, numerous attempts by bailiffs to recover possession proved unsuccessful because the applicant was not entitled to police assistance in enforcing the orders. The ECtHR said
The right to a court as guaranteed by Article 6 also protects the implementation of final, binding judicial decisions, which, in States that accept the rule of law, cannot remain inoperative to the detriment of one party
Accordingly, the execution of a judicial decision cannot be unduly delayed. However, a stay of execution of a judicial decision for such a period as is strictly necessary to enable a satisfactory solution to be found to public-order problems may be justified in exceptional circumstances.
However, in this case, bearing in mind the public order problems which Italy has had to face in the field of housing, the ECtHR considered that delays of between three years and two months and four years and one month in evicting tenants, were not so long as to deprive the order for possession of all useful effect or of undermining its substance.
The importance of the execution of a judgment being regarded as an integral part of the hearing for the purposes of Article 6 was stressed in Kunic v Croatia . In 1996, the Croatian Takeover Commission, relying upon the provisions of the Temporary Takeover and Managing of Certain Property Act, allowed a third party into Mr Kunics home and restaurant in Mr Kunics absence. In February 2001, the third party was ordered to vacate the house. He did not do so, and in March 2001 the Housing Commission brought an action in the Karlovac Municipal Court seeking his eviction. In February 2002, the court gave judgment accepting the Housing Commission's claim and ordering the third party to vacate the premises. After various appeals, the bailiff eventually evicted the third party in December 2003 and Mr Kunic repossessed his property. The ECtHR noted that the execution of a judgment must be regarded as an integral part of the hearing for the purposes of Article 6 It also reiterated that the reasonableness of the length of proceedings must be assessed with reference to the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute. It noted that it took more than six years for the domestic authorities to give and enforce a final decision in a case of undeniable importance for Mr Kunic, which was of no particular complexity. It held that the length of the proceedings was excessive and failed to meet the reasonable time requirement. There was accordingly a breach of Article 6.1.
Enforcement of social rights
Similarly, in Lozan v Moldova, the applicants, who lived in separate rooms in a dormitory, obtained a judgment in Centru District Court ordering their employer, the Academy of Sciences of Moldova , to grant them legal tenancies. The judgment became final and enforceable on 25 October 2000. The Academy did not comply with the judgment until 4 December 2003, after an application to the ECtHR had been made. The ECtHR again found that by failing for years to take the necessary measures to comply with the final judicial decision
, the Moldovan authorities deprived the provisions of Article 6 § 1 of the Convention of all useful effect.
In some of the Russian cases, the authorities unsuccessfully sought to rely on a lack of resources as an excuse for failing to comply with judgments. Since Soviet times, hundreds of thousands of Russians have been placed on waiting lists which become longer each year on account of a lack of resources to build new council housing. It has been suggested that the person who is first on the waiting list in the Cherepovets municipality, 300 km north east of Moscow , has been waiting for new council housing since 1968. In Malinovskiy v Russia the ECtHR said
it is not open to a State authority to cite the lack of funds or other resources as an excuse for not honouring a court award. Admittedly, a delay in the execution of a judgment may be justified in particular circumstances, but the delay may not be such as to impair the essence of the right protected under Article 6(1). The applicant should not be prevented from benefiting from the success of the litigation on the ground of alleged financial difficulties experienced by the State.
In Tarasov v Russia in June 2002, the Dubna Town Court ordered the Dubna Town Administration to ...provide Mr Tarasov
with a separate well-equipped flat having a living surface of no less than 61 square metres on the basis of a special tenancy agreement.... Enforcement proceedings were opened, but the judgment could not then be enforced because the town administration possessed no available housing or financial resources to purchase a flat. In August 2005 the administration bought a three roomed flat for the applicant. In finding a breach of Article 6, the ECtHR repeated that it is not open to a State authority to cite the lack of funds or other resources, such as housing, as an excuse for not honouring a judgment debt.
In Kletsova v Russia a tenant obtained judgment for non-pecuniary damages of 200 roubles against the Kamyshin municipal housing maintenance enterprise after a failure to carry out maintenance works to her flat (repairing and white-washing the ceiling and repairing the floor). The judgement became enforceable in September 2003, but the damages were only paid in April 2005, after insolvency proceedings had been initiated. In finding a breach of Article 6 and Article 1 of Protocol No. 1 the ECtHR stated that
A person who has obtained an enforceable judgment against the State as the result of successful litigation cannot be required to resort to enforcement proceedings in order to have it executed.
Application to local authorities
At first glance it might be thought that this line of cases could be of assistance to homeless persons seeking to enforce obligations under Housing Act 1996 Parts 6 and 7 where hard pressed local authorities seek to rely upon a lack of accommodation. However, the English courts have generally rejected councils contentions that lack of available resources is a relevant consideration when complying with the full duty contained in s193 without having to refer to the ECHR. The s193 duty is unqualified, cannot be deferred and cannot be construed as a duty to make suitable accommodation available within a reasonable time. In those circumstances Housing Act 1996 is ECHR compliant and no benefit would be gained by alleging a breach of the Convention.
back to housing law back to home continue ECHR and housing 4
Parts 1 and 2 of this article appeared at [2007] JHL 55 and 87. For further ECtHR decisions on Article 1 of Protocol No. 1, see J.A. Pye (Oxford) Ltd v UK Application no. 44302/02; 30 August 2007 (Chamber of the Fourth Section decision reversed - no breach because Pye was affected, not by a deprivation of possessions within the meaning of the second sentence of the first paragraph of Article 1, but rather by a control of use of land within the meaning of the second paragraph of the provision. The existence of a 12-year limitation period for actions for recovery of land as such pursued a legitimate aim in the general interest. There is a general interest in both the limitation period itself and the extinguishment of title at the end of the period.); Akimova v Azerbaijan Application no. 19853/03; 27 September 2007 (an occupancy voucher to an apartment in a state-owned residential building sufficient to constitute a possession falling within the ambit of Article 1) and a number of cases noted below in relation to delay in proceedings and Article 6 where breaches of Article 1 of Protocol No. 1 were also found.
For reasons of space, this article does not deal with issues relating to the impartiality of hearings - see Tsfayo v UK App No 60860/00; (2006) The Times November 23; 14 November 2006 (Old style Housing Benefit and Council Tax Benefit Review Board comprising elected councillors, advised by a barrister from the councils legal department, did not merely lack independence, but was directly connected to one of the parties to the dispute, since it included five councillors from the local authority which would be required to pay the benefit if awarded. Breach of Article 6 because there had been no independent determination of the factual dispute and that omission could not be made good by judicial review because the Administrative Court did not have jurisdiction to rehear the evidence or substitute its own views as to the applicants credibility.), and Langborger v. Sweden (1989) 12 EHRR 416 (violation of the requirement of objective impartiality on the part of the lay assessors sitting in the Swedish Housing and Tenancy Court).
July 1999. See too G.L v Italy (August 2000), A.O. v Italy 22534/93, 4 October 2000 Immobiliare Saffi, [GC], no. 22774/93, § 44, ECHR 1999-V, § 69); Ilić v Serbia Application no. 30132/04; 9 October 2007 (possession proceedings pending for approximately eight years.); Panteleeva v Ukraine Application no. 31780/02; 5 July 2007 (possession claim taking almost four years) and Vyrovyy v Ukraine Application no. 28746/03; 12 July 2007 (proceedings asserting rights to a particular apartment lasting slightly over five and a half years)
Application no. 22344/02; 11 January 2007. The ECtHR also found that there was a breach of Article 1 of Protocol No. 1.
Application no. 41302/02; 7 July 2005.
See too Gerasimova v Russia, Application no. 24077/02; 21 July 2005; Mikryukov v Russia Application no. 7363/04; 8 December 2005 (judgment unenforced for over three years); Kuksa v Russia Application no. 35259/04 (judgment that Yakutsk Town Administration provide Mr Kuksa and his family with well-equipped living premises in a stone building constructed after 1994 unenforced for almost five years. Liquidation proceedings instituted against the town administration.); Sypchneko v Russia Application no. 38368/04; 1 March 2007; Konovalov v Russia Application no. 63501/00; Teteriny v Russia ECtHR; Application no. 11931/03; 30 June 2005 (see above); Gorlova v Russia Application no. 29898/03; 15 February 2007; Ponomarenko v Russia Application no. 14656/03; 15 February 2007; Mizyuk v Russia Application no. 9253/06; 12 April 2007; Pridatchenko v Russia Application no. 2191/03; 21 June 2007 (delay of over two years in enforcement of judgment to provide housing); Nevolin v Russia Application no. 38103/05; 12 July 2007 (order to provide housing unenforced for approximately sixteen months); Telyatyeva v Russia Application no. 18762/06; 12 July 2007 (order that council provide accommodation un-enforced for almost two years.); Lykov v Russia Application no. 18557/06; 12 July 2007 (order that council provide accommodation un-enforced for almost three years); Baygayev v Russia Application no. 36398/04; 5 July 2007 (award of 300,000 Russian roubles (RUR) for destruction of housing during Chechen military operation unenforced for two years); Gizzatova v Russia Application no. 5124/03; 13 January 2005 (judgment for compensation for work related injuries); and Kukalo v Russia Application no. 63995/00; 3 November 2005 (judgment for unpaid pension).
Application no. 20567/02; 10 October 2006
Application no. 41302/02; 7 July 2005.
Application no. 13910/04; 28 September 2006. See too Konovalov v Russia Application no. 63501/00; Teteriny v Russia ECtHR; Application no. 11931/03; 30 June 2005 (see above); Gorlova v Russia Application no. 29898/03; 15 February 2007; Gizzatova v Russia Application no. 5124/03; 13 January 2005 (judgment for compensation for work related injuries) and Jeličić v Bosnia and Herzegovina Application no. 41183/02; 31 October 2006 (judgment concerning savings in a bank).
R v Newham LBC ex p Ojuri (No 3) (1999) 31 HLR 452 at 461; endorsed by Latham LJ in R (Sacupima) v Newham LBC [2001] 1 WLR 563 at 573; R (Khan) v Newham LBC [2001] EWHC Admin 589; October 2001 Legal Action 16 (Scott Baker J) and R v Newham LBC ex p Begum (Mashuda) [2000] 2 All ER 72; (2000) 32 HLR 808; (1999) Times 11 October, QBD cf R v Southwark LBC ex p Anderson (2000) 32 HLR 96, QBD (Moses J).