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Housing and Human Rights – lessons from Strasbourg (2) [1]

[2007] JHL 87

What are “possessions”?

The word “possessions” in Article 1 of Protocol No. 1 has always been widely interpreted.  It includes all property, chattels, rights with an economic interest, including the interests of landlords, interests of tenants and contractual rights. [2]


In James[3] the UK government, unsurprisingly, did not dispute that long leases were possessions and the ECtHR found that the operation of the Leasehold Reform Act 1967 deprived freeholders of their possessions, within the meaning of the second sentence of Article 1 of Protocol No. 1.  In S v UK [4] the ECtHR held that a repairing covenant and restrictive use covenant were possessions for the purposes of Article 1.


Against this background, and bearing in mind that in English and Welsh law, even an unprotected weekly tenancy is an interest in land, there would seem to be little doubt that a tenancy is a possession within the meaning of Article 1.  However, in Pentidis v Greece [5] the majority found that the applicants’ tenancy was not a possession. The Court stated that an applicant complaining of an interference with his Article 1 rights must show that “he was the owner of the property in question before the act complained of.”  As the occupants were tenants and not the proprietors of the room in question, there was no breach.  It might be significant that they had only been renting it for five months before the door was sealed.  It may also be argued that this decision would no longer be followed in view of some of the more recent decisions referred to below.


In the more recent case of Blecic v Croatia,[6] the ECtHR found it unnecessary to decide whether or not a Croatian specially protected tenancy constituted property or a possession within the meaning of Article 1 of the First Protocol because it held that the relevant law which resulted in a possession order against Mrs Blecic pursued a legitimate social-policy aim and struck a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.


The ECtHR has given further consideration to the meaning of “possessions” in other recent cases.  Öneryıldız v Turkey[7] concerned a household-refuse tip in Hekimbaşı, “a slum area” in Istanbul .  “Illegal buildings” were constructed close to the site on land which did not belong to the occupants. The houses were erected in breach of Turkish town-planning regulations and did not conform to the relevant technical standards.  The occupants sought to have their title to the properties and land regularised, but before this procedure had been completed, a methane explosion occurred at the site. Following a landslide caused by mounting pressure, the refuse erupted from the mountain of waste and engulfed some ten slum dwellings situated below it. Thirty-nine people died in the accident. The applicants complained, among other things, that there had been a breach of Article 1 of Protocol No. 1.  The ECtHR reiterated that the concept of “possessions” has an autonomous meaning which is not limited to ownership of physical goods and is independent from the formal classification in domestic law.  The issue that needs to be examined is whether the circumstances of the case, considered as a whole, confer on the applicant title to a substantive interest protected by Article 1.[8] Accordingly, as well as physical goods, certain rights and interests constituting assets may also be regarded as “property rights”, and thus as “possessions”.  The concept of “possessions” is not limited to “existing possessions” but may also cover assets, including claims where an applicant can argue that he has at least a reasonable and “legitimate expectation” of obtaining effective enjoyment of a property right.[9] However, in this case, in the light of the evidence, the Court could not conclude that the applicant’s hope of having the land “transferred to him one day” constituted a claim of a kind that was sufficiently established to be enforceable in the courts, and hence a distinct “possession” within the meaning of ECtHR case-law.  However, different considerations applied to the dwelling itself.  The State authorities had acknowledged de facto that Mr Öneryıldız and his close relatives had a proprietary interest in their dwelling and movable goods. His proprietary interest in his dwelling was of a sufficient nature and sufficiently recognised to constitute a substantive interest and hence a “possession” within the meaning of the first sentence of Article 1 of Protocol No. 1.


Veselinski v Former Yugoslav Republic of Macedonia[10] concerned the right of a tenant to buy his flat at a discount.  Mr Veselinski was an officer in the Yugoslav Army until he retired in 1985.  As a soldier, he paid monthly contributions from his salary to the Yugoslav Army for the construction of army apartments.  In 1990, the Yugoslav Federal Assembly enacted a Law on Housing of Army Servicemen which allowed current and retired members of the armed forces to purchase their apartments with a price adjustment taking into account the monthly contributions which they had paid.  In 1992, the Macedonian Ministry of Defence took over all the obligations of the Yugoslav Army for army apartments, including the obligation to sell those apartments with a price reduction.  In 1993, a new Macedonian law provided that tenants were entitled to purchase socially owned apartments on credit and at a beneficial price, but, unlike the earlier law, it did not provide for a price adjustment for the monthly contributions previously paid.  In 1992, Mr Veselinski asked the Macedonian Ministry of Defence to allow him to purchase his current apartment at a reduced price or to give him another apartment which used to be owned by the former Yugoslav Army.  A dispute arose about the terms of his purchase and in 1997 the Supreme Court held that Mr Veselinski had no right to buy at the reduced price.  As a result of that decision, he became liable to pay further sums of money.


The ECtHR stated again that the concept of “possessions” in Article 1 of Protocol No. 1 has an autonomous meaning and that Article 1 of Protocol No. 1 in substance guarantees the right of property.[11] It repeated that a “possession” may be either an “existing possession” or a claim, in respect of which the applicant can argue that he has at least a “legitimate expectation” of obtaining effective enjoyment of a property right.[12]  The “legitimate expectation” may also encompass the conditions attaching to the acquisition or enjoyment of property rights.


In this case, taking into account Mr Veselinski’s previous contributions and the agreements in force at the time, he had a “legitimate expectation” that the purchase of his apartment would be at a reduced price. The Supreme Court’s decision was an unjustified interference with his peaceful enjoyment of his possessions and therefore a violation of Article 1 of Protocol No. 1.


Similarly, the ECtHR held in Stretch v United Kingdom[13] that an option in a 22 year building lease to renew it for a further term of 21 years may be a “legitimate expectation” which should be regarded, for the purposes of Article 1 of Protocol No. 1, as “attached to the property rights granted to ... under the lease”.

Social benefits

The ECtHR has, from time to time, held[14] that the right to social benefits is not included as such among the rights and freedoms guaranteed by the Convention.  Further, the right to live in a particular property not owned by the applicant does not as such constitute a “possession” within the meaning of Article 1 of Protocol No. 1.[15]  However, the extent to which social rights and interests constituting assets can be regarded as property rights has been explored in a number of recent Russian cases.[16] 


The RSFSR Housing Code provided that Russian citizens were entitled to possess flats owned by the State or municipal authorities or other public bodies, and that certain “protected” categories of individuals (disabled persons, war veterans, Chernobyl victims, police officers, judges, etc.) had a right to priority treatment in the allocation of flats.  Malinovskiy v Russia[17] involved consideration of the Russian Law On Social Protection of Citizens Exposed to Radiation as a Result of the Chernobyl Nuclear Power Station Explosion.  That law provided that disabled victims of the Chernobyl explosion were to be granted social housing within three months of submitting an appropriate application.  In 1986, Mr Malinovskiy was engaged in emergency operations at Chernobyl .  In the 1990s his health deteriorated.  In 1999, he applied for free accommodation from the State. In 2001, he successfully brought court proceedings against the Belgorod Regional Administration to challenge its failure to make accommodation available to him.  Enforcement proceedings were instituted in February 2002.  In July 2003, the Presidium of the Belgorod Regional Court conducted a supervisory review of the judgment.  It held that the statutory time-limit of three months was applicable and not amenable to further extensions.  In March 2004, Mr Malinovskiy was still waiting for accommodation.  He went on hunger strike and it was only in July 2004 that he received an occupancy voucher from the mayor entitling him to a satisfactory flat.  The ECtHR stated that it was clear that, at least after the decision in July 2003, the authorities had no legitimate ground to delay enforcement proceedings for more than three months.  Nevertheless, between July 2003 and July 2004, no steps were taken to enforce the award.  The ECtHR repeated that




“the right to any social benefit is not included as such among the rights and freedoms guaranteed by the Convention [and] that a right to live in a particular property not owned by the applicant does not as such constitute a “possession” within the meaning of Article 1 of Protocol 1. … However pecuniary assets, such as debts, by virtue of which the applicant can claim to have at least a “legitimate expectation” of obtaining effective enjoyment of a particular pecuniary asset … may also fall within the notion of “possessions” contained in Article 1 of Protocol No. 1.  In particular, the Court has consistently held that a “claim” — even concerning a particular social benefit — can constitute a “possession” within the meaning of Article 1 of Protocol No. 1 if it is sufficiently established to be enforceable.” 


In this case, from the time of the judgments in December 2001 and July 2003, Mr Malinovskiy had established a “legitimate expectation” to acquire a pecuniary asset and therefore his claim to a “social tenancy agreement” was sufficiently established to constitute a “possession” falling within the ambit of Article 1 of Protocol No. 1.  The ECtHR awarded EUR 3,000 in respect of non-pecuniary damage.


The ECtHR reached a similar conclusion in Teteriny v Russia [18].  Mr and Mrs Teteriny, although born in 1954 and 1955, were both retired judges.  In September 1994 the Ezhvinskiy District Court ordered the town council to “...grant or purchase for Mr Teterin, whose family comprises five members, a separate well-equipped flat or house taking account of the plaintiff's entitlement to one additional room or having a habitable surface of no less than 65 square metres, located near the Knyazhpogostskiy District Court in the town of Yemva”.  In October 1994, enforcement proceedings were instituted. However, the judgment could not be enforced because the town authorities did not possess any available housing or the financial resources to purchase a flat.  Further attempts at enforcement were unsuccessful.  The ECtHR decided that the 1994 judgment did not determine Mrs Teterina’s civil rights and obligations and did not confer any entitlement on her.  Accordingly, her complaints were incompatible ratione personae with the provisions of the Convention.  With regards Mr Teterin’s claim under Article 1 of Protocol No. 1, the ECtHR noted that the judgment granted in his favour did not require the authorities to give Mr Teterin ownership of a particular flat, but rather obliged them to issue him with an occupancy voucher in respect of any flat satisfying the court-defined criteria. On the basis of the voucher, a “social tenancy agreement” would have been signed between the competent authority and Mr Teterin.  Under the terms of a “social tenancy agreement”, as established in the RSFSR Housing Code, he would have had a right to possess and make use of the flat and, under certain conditions, to privatise it in accordance with the Privatisation of State Housing Act.  From the moment the September 1994 judgment was issued, he had an established “legitimate expectation” to acquire a pecuniary asset. As a result, his claim to a “social tenancy agreement” was sufficiently established to constitute a “possession” falling within the ambit of Article 1 of Protocol No. 1.  The fact that it was impossible to obtain the execution of the judgment for more than ten years constituted an interference with his right to peaceful enjoyment of his possessions.  Accordingly, there was a violation of Article 1 of Protocol No. 1.  The ECtHR held that the Government should secure, within three months, by appropriate means, the enforcement of the award made by the domestic courts.  It also awarded Mr Teterin EUR 3,000 in respect of non-pecuniary damage.


In Sypchenko v Russia ,[19] the ECtHR repeated that the existence of an obligation confirmed by a binding and enforceable judgment furnishes the judgment beneficiary with a “legitimate expectation” that the obligation will be honoured and constitutes the beneficiary's “possessions” within the meaning of Article 1 of Protocol No. 1. The quashing or amendment of such a judgment amounts to an interference with rights to peaceful enjoyment of possessions and, in that case, amounted to a breach of Article 1 of Protocol No. 1.


The ECtHR has also found a breach of Article 1 of Protocol No. 1, where, after a council obtained a possession order on the basis that the title of a flat offered as alternative accommodation would be transferred to the tenant, registration of the transfer was not completed.[20] The Court held that the transfer of the flat could not be deemed completed until the State registration had been performed.


The effect of the Strassbourg jurisprudence can be seen by the change of approach of the UK government with regards Article 1 of Protocol No. 1 and the withdrawal of benefits.  In Campbell v South Northamptonshire District Council[21] the Court of Appeal held that the right to housing benefit is not a possession because it is not a contributory benefit.  However in Stec v United Kingdom [22] the Grand Chamber of the ECtHR, in the course of declaring a claim admissible, stated


In the modern democratic State, many individuals are, for all or part of their lives, completely dependent for survival on social security and welfare benefits.  Many domestic and legal systems recognise that such individuals require a degree of certainty and security, and provide for benefits to be paid subject to the fulfilment of the conditions of eligibility – as of a right. Where an individual has the assertable right under domestic law to a welfare benefit, the importance of that interest should also be reflected by holding Article 1 of Protocol No 1 to be applicable.


As a result, in R (RJM) v Secretary of State for Work and Pensions[23] the Government conceded, rightly in the view of the Court of Appeal, that an entitlement to disability premium as part of a claimant’s income support was a relevant possession within the meaning of Article 1 of Protocol No. 1.


The Russian housing cases demonstrate that the ECtHR, when considering Article 1 of Protocol No. 1 is primarily concerned with proprietary rights and their value, not the comfort of specific bricks and mortar.  The ECHR does not give a right to a particular home.  But, despite this, to what extent can Article 1 of Protocol No. 1 be used by English and Welsh tenants facing possession claims?  Bearing in mind the Strasbourg jurisprudence that a right to live in a particular property not owned by the applicant does not as such constitute a “possession” within the meaning of Article 1 of Protocol 1 and the absence of any tenancy, it is understandable that Article1 was not relied upon in Lambeth LBC v Kay [24].  It could not have been of any assistance.  But what about Harrow LBC v Qazi?[25]   Mr Qazi based his human rights defence to the possession claim brought after his wife served a notice to quit terminating the joint tenancy solely upon Article 8.[26]   It is certainly arguable that his interest in a joint secure tenancy was a possession within the meaning of Article 1 of Protocol No. 1.  On the other hand Harrow might have argued that the law allowing one tenant to terminate a joint tenancy by serving a notice to quit  strikes a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights and pursues a legitimate social policy aim[27] – freeing tenants who have left premises from continuing responsibility  to pay rent and absolving local authorities from an obligation to provide both tenants with accommodation on relationship breakdown.   There might though be an argument that the law which deprived Mr Qazi not only of his interest in the secure tenancy, but also of his right to buy, right to mutual exchange and the ability of his relatives to succeed to his secure tenancy on his death without any right to compensation in return, was a breach of Article 1.  Did it strike a fair balance between the interests of the state/local authority and its tenants?  Mr Qazi would no doubt have answered “no”.


Damages

The ECtHR considered the measure of damages to be awarded following breaches of Article 1 of Protocol No. 1 in Kirilova v Bulgaria .[28]  The state failed to provide replacement flats after the expropriation of the applicants’ own properties between 1983 and 1990.    For many years after 1992, when the ECHR and Protocol No. 1 came into force in Bulgaria, the authorities not only failed to comply with their obligations, but also actively resisted endeavours to compel them to do so.  The ECtHR held that the pecuniary damage sustained by the applicants comprised, firstly, the value of the flats which had still not been delivered.  In this connection, the best way to wipe out the consequences of the breach of Article 1 of Protocol No. 1 was for the state to deliver the flats, or equivalent flats.  However, as states are free to choose the means whereby they comply with its judgments, the ECtHR ruled that, if Bulgaria did not make such delivery within three months, it should pay the applicants a sum corresponding with the current value of the flats.  Secondly, pecuniary damage included the impossibility of using and enjoying the flats before their delivery.  The applicants proposed that this head of damage should be assessed by estimating, on the basis of experts’ reports, the rent which they could have obtained if they had leased the flats out, plus compound interest.  The Court accepted that this approach was reasonable, but only on the assumption that the applicants would have indeed been able to lease out the flats due to them.  In fact, most of the applicants would have lived in the flats themselves.  Accordingly, in the absence of proof that the applicants could indeed have leased their flats out, the damage sustained by them was the cost of finding alternative accommodation.  In addition though, the Court found that the applicants had suffered a loss of opportunity because they were unable to use and enjoy the flats due to them for long periods of time.  It awarded pecuniary damages ranging from EUR 4,000 to EUR 9,000.  The court also awarded non-pecuniary damages of EUR 2,000 to each applicant,


arising from the feeling of helplessness and frustration in the face, firstly, of the prolonged failure of the authorities to deliver the flats to which they were entitled and, secondly, of the authorities' marked reluctance to solve their problem for such a long time. Some of the applicants were further distressed by the need to live in worse conditions, in the municipal housing where they were lodged.  … [Two applicants] must have been disgruntled by the years of fruitless judicial proceedings whereby they tried to remedy the situation they were in.




[1] Part 1 of this article appeared at [2007]  JHL ****.  For further cases where the ECtHR has stressed the importance of states providing compensation where there has been a deprivation of property within the meaning of the second sentence of Article 1 of Protocol No. 1, see Velikovi v Bulgaria Applications no. 43278/98; 15 March 2007; Bistrović v Croatia Application no. 25774/05; 31 May 2007 and Tuleshov v Russia Application no. 32718/02; 24 May 2007.

[2] Keir Starmer, European Human Rights Law, LAG, 1999, p582

[3] Application no. 8793/79; 21 February 1986.

[4] (1984) 41 Dr 226 @ 232

[5] (1997) 24 EHRR CD 1.

[6] Application no. 59532/00; 29 July 2004

[7] Application no. 48939/99; 30 November 2004

[8] Zwierzyński v  Poland, no. 34049/96, § 63, ECHR 2001-VI.  

[9] See, for example, Prince Hans-Adam II of Liechtenstein v Germany Application no. 42527/98, § 83, ECHR 2001-VIII).

[10] Application no. 45658/99; 24 February 2005.  See too Djidrovski v Former Yugoslav Republic of Macedonia Application no. 46447/99; 24 February 2005

[11] See Marckx v Belgium , 13 June 1979, Series A no. 31, pp. 27-28, § 63).

[12] See Pine Valley Developments v Ireland   29 November 1991, Series A no. 222, p. 23, § 51, where a legitimate expectation arose when outline planning permission had been granted.  The planning permission, which was later annulled rendering development of the land impossible, was a “component part of the applicant companies’ property”. 

[13] Application no. 44277/98, § 35, 24 June 2003.  The Court of Appeal had held that the option was ultra vires the local authority which granted the lease Stretch v West Dorset  (1999) 77 P. & C.R. 342 [1998] 3 E.G.L.R. 62.

[14] e.g. Kukalo v Russia Application no. 63995/00; 3 November 2005.  See too Aunola v. Finland (dec.), no. 30517/96, 15 March 2001.  See too in relation to Article 8, X v FRG (1956) 1 YB 202,

[15] Kukalo v Russia Application no. 63995/00; 3 November 2005.  

[16] Konovalov v Russia Application no. 63501/00; 23 March 2006; Gorlova v Russia Application no. 29898/03; 15 February 2007; Ponomarenko v Russia Application no. 14656/03; 15 February 2007; Kuksa v Russia Application no. 35259/04; 15 June 2006; Mikryukov v Russia Application no 7363/04; 8 December 2005; Shpakovskiy v Russia application no.41307/02; 7 July 2005; Tarasov v Russia, Application no. 13910/04; 28 September 2006 and Mizyuk v Russia Application no. 9253/06; 12 April 2007.   See too Plotnikovy v Russia no. 43883/02. 24 February 2005 (a case involving failure to enforce court judgments for arrears of welfare pensions), Gizzatova v. Russia, Application no. 5124/03, § 19 et seq., 13 January 2005 (enforcement of judgment in civil action for compensation for work-related injuries against the municipal enterprise); Wasserman v Russia, Application no. 15021/02, § 35 et seq., 18 November 2004; (enforcement of  judgment against treasury of the Russian Federation to repay US$1,600 wrongly seized by the Sochi Customs Office) Burdov v Russia, Application no. 59498/00; 7 May 2002 (enforcement of judgment against Shakhty Social Security Service following non payment of  compensation awarded following applicant’s involvement in the “Chernobyl events”) and Kletsova v Russia Application no.24842/04; 12 April 2007 (judgment for damages for breach of repairing obligations).

[17]Application no. 41302/02; 7 July 2005

[18] Application no. 11931/03; 30 June 2005

[19] Application no. 38368/04; 1 March 2007

[20] Gerasimova v Russia, Application no. 24077/02; 21 July 2005, where enforcement proceedings were instituted, the applicant got the keys to the flat and moved into it, but the State registration of the transfer had not been performed by the time the case reached Strasbourg.  

[21] [2004] EWCA Civ 409, [2004] 3 ALL ER 387.  See too R (Carson and Reynolds) v Secretary of State for Work and Pensions [2003] EWCA Civ 797, [2003] 3 ALL ER 577. 

[22] Application nos 65731/01 and 65900/01, 6 July 2005.

[23] [2007] EWCA Civ 614; 28 June 2007

[24] [2006] UKHL 10; [2006] 2 WLR 570.

[25] [2003] UKHL 43; [2003] 3 WLR 792; [2003] 4 All ER 461

[26] See the speech of Lord Hope who said “But neither article 6 nor article 1 of the First Protocol are in issue in this case. We are concerned only with article 8.” [52] and  “[Mr Qazi]  does not base his claim that he is threatened with a violation of his Convention rights on article 1 of the First Protocol.” [59]

[27] See Blecic v Croatia Application no. 59532/00; 29 July 2004

[28] Applications nos. 42908/98, 44038/98, 44816/98 and 7319/02;14 June 2007