1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Although Article 8 provides for the right to respect for private and family life, homes[2] and correspondence, in X v FRG[3], a case involving a refugee from East Germany, the ECtHR decided that the right to a satisfactory standard of living and to decent housing do not figure among the rights and liberties provided by the ECHR. Similarly in Velosa Barretto v Portugal [4] the ECtHR said
...effective protection of respect for private and family life cannot require the existence in national law of legal protection enabling each family to have a home for themselves alone.
In Mazari v Italy [5] the applicant was a disabled man. He claimed that he was unable to leave hospital because the public authorities had not secured appropriate accommodation for him. The ECtHR dismissed his complaint, stating
The court considers that although Article 8 does not guarantee the right to have ones housing problem resolved by the authorities, a refusal of the authorities to provide assistance in this respect to an individual suffering from a severe disease might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such refusal on the private life of the individual.
This approach was repeated in Chapman v UK [6] where Roma gypsies were prohibited from lawful occupation of caravans stationed on land which they owned by planning laws. The ECtHR found that there was no breach of Article 8. The States actions were in accordance with domestic law, pursued a legitimate aim (environmental protection) and, having regard to the margin of appreciation allowed to national governments, were both necessary and proportionate. As to the contention that, if evicted, the applicants would have no alternative lawful site available, the Court stated:
It is important to recall that article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence of the Court acknowledge such a right. While it is clearly desirable that every human being has a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision.
This restrictive approach, in which the ECtHR has been unwilling to allow Article 8 to be interpreted to impose wider, social duties upon states, has perhaps been the reason why more cases involving housing have been brought to Strasbourg under Article 1 of Protocol No. 1[7] than under Article 8. However, the ECtHR did find a breach of Article 8 in Tuleshov v Russia .[8] Following a commercial dispute between a company and a third party, the Marx Town Court ordered the sale of a house. In 1996, the sale was administered by the court bailiff. Mr Tuleshov offered to buy the house for the equivalent of approximately US$2,800. The court approved the sale. He and his family moved in and renovated the property. However, neither the court nor Mr Tulashev was aware that the company had previously sold the property to Mr Kh. In 1999, the Marx Town Court found that the bailiff had sold the house to Mr Tuleshov unlawfully and declared the sale null and void. In 2003 Mr Tuleshov and his family were granted social housing in a municipal hostel. Mr Tuleshov brought claims for compensation against Mr Kh, the Ministry of Finance, the Ministry of Justice and the Judicial Administration Department, but was only awarded a small part of his losses because he had had not made sufficient effort to recover the debt from the company. Mr Tuleshov and his family complained that there had been a breach of Article 1, Protocol No. 1 and Article 8.
In relation to Article 8, the ECtHR accepted that the law which resulted in the familys eviction was lawful in domestic terms and in the pursuit of the public interest i.e. protecting the rights of the lawful owner. However, the accommodation in the municipal hostel was offered more than two years after the eviction order and the possibility of private rental or purchase of accommodation was limited because the compensation awarded was insufficient. Accordingly, the interference with the Tuleshovs' right to respect for their home was disproportionate to the legitimate aim pursued and there had been a violation of Article 8. The ECtHR awarded the Tuleshovs jointly EUR 18,350 for any pecuniary damage they sustained as a result of the loss of their house and their eviction and EUR 20,000 in respect of non-pecuniary damage.
A Defence to Possession claims?
So, against this background, can Article 8 be used as a defence to possession claims? Blecic v Croatia[9] involved a specially protected tenancy in Zadar, Croatia , granted in 1953 to Mrs Blecic and her husband. After her husbands death, she became the sole tenant. In July 1991 she went to stay with her daughter in Rome for the summer. She locked the flat and left all her belongings in it. However by August 1991 the armed conflict created severe travel difficulties in the area. The town was subject to constant shelling and the supply of water and electricity was disrupted. In November 1991, a family broke into the flat and lived there. In February 1992 the Zadar Municipality brought a civil action claiming possession on the basis that she had been absent from the flat for six months without justified reason. The court terminated the tenancy but there were a series of appeals. In 1996 the Supreme Court found that her reasons for being absent were not justified. The Constitutional Court dismissed a further appeal in 1999.
The ECtHR considered whether or not the Croatian courts decisions to terminate Mrs Blecics specially protected tenancy amounted to a violation of Article 8. It was satisfied that she did not intend to abandon the flat, but had made appropriate arrangements for its maintenance, with a view to her return. The flat in question could therefore reasonably be regarded as her home for the purposes of Article 8. It also found that the termination of the tenancy by the domestic courts constituted an interference with her right to respect for her home. The court therefore went on to consider whether the interference was justified. It was satisfied that the legislation pursued a legitimate aim, namely, the satisfaction of the housing needs of citizens, and that it was thus intended to promote the economic well-being of the country and the protection of the rights of others. The Croatian legislature was entitled to prescribe the termination of specially protected tenancies held by individuals who no longer lived in the publicly-owned flats allocated to them and the subsequent redistribution of such flats to those in need. The only issue was whether the Croatian courts infringed her right to respect for her home in a disproportionate manner. The Court accepted that
where State authorities reconcile the competing interests of different groups in society, they must inevitably draw a line marking where a particular interest prevails and another one yields, without knowing precisely its ideal location. Making a reasonable assessment as to where the line is most properly drawn, especially if that assessment involves balancing conflicting interests and allocating scarce resources on this basis, falls within the States margin of appreciation.
[States enjoy] an equally wide margin of appreciation as regards respect for the home in circumstances such as those prevailing in the present case, in the context of Article 8. Thus, the Court will accept the judgment of the domestic authorities as to what is necessary in a democratic society unless that judgment is manifestly without reasonable foundation, that is, unless the measure employed is manifestly disproportionate to the legitimate aim pursued.
In this case, it could not be argued that the Croatian courts decisions were arbitrary or unreasonable or that the solution reached was manifestly disproportionate to the legitimate aim pursued. There was accordingly no violation of Article 8. The Court also concluded that there was no breach of Article 1 of the First Protocol.
So, it appeared that the restrictive interpretation of Article 8 meant that the ECtHR was refusing to countenance the use of Article 8 as a defence to possession claims. That is of course the interpretation given to the Strasbourg jurisprudence by the majority in the House of Lords decisions in Harrow LBC v Qazi[10] and Lambeth LBC v Kay; Leeds CC v Price[11].
However, the ECtHR did find a breach of Article 8 in Stanková v Slovakia [12]. Mrs Stanková and her husband held a joint tenancy of a three-room flat owned by a cooperative in Poprad. After matrimonial differences, she and her two children left that flat and went to live in a two-room flat rented by her father from the Poprad Municipality. He suffered from a long-term illness and died in 1994. After his death Mrs Stanková continued to live in his flat and paid the rent. She asked to be registered as permanently residing in the flat, but in 1995, the Poprad Municipal Office informed her that the right to use her father's flat had not passed to her after his death. In October 1996, the Poprad District Court ordered her to move out of the flat within 30 days. It held that she had not become a tenant of the flat originally used by her father since, at the time of his death, she had been registered as a user of the flat in which she had lived with her former husband. Enforcement action was taken and she was evicted. Mrs Stanková complained to the ECtHR of breaches of Article 6 and Article 8.
The Court found that there had been a violation of Article 8. It was not disputed that the obligation that Mrs Stanková leave the flat amounted to an interference with her right to respect for her home. It was in accordance with the law and pursued the legitimate aim of protecting the rights of the Poprad Municipality , which owned the flat. However, the ECtHR decided that the interference was not necessary in a democratic society. The notion of necessity implies a pressing social need and any measure employed must be proportionate to the legitimate aim pursued. After referring to the margin of appreciation enjoyed by the national authorities, the ECtHR accepted the conclusions of the Slovakian Constitutional Court that the effect of ordering Mrs Stanková to leave the flat without being provided with any alternative accommodation produced effects which were incompatible with her right to respect for her private and family life and for her home. The interference was not necessary in a democratic society as it had not been based on relevant and sufficient reasons. The ECtHR also noted that the Poprad Municipality was in charge of public housing and was under an obligation to assist the town's citizens in resolving their accommodation problems. It awarded non-pecuniary damage of EUR 3,000.
This decision raises questions about the way in which Strasbourg precedent has developed since the incorporation of the eastern accession countries. It could be said that it has become less consistent, more concerned with cutting and pasting words, than applying principles. However, Stanková also raises interesting and potentially difficult questions for English and Welsh housing practitioners. Would the ECtHR now approve the decisions in Harrow LBC v Qazi, Lambeth LBC v Kay; Leeds CC v Price and Michalak v Wandsworth LBC?[13] Is Stanková an aberration? Or do Stanková, and perhaps Tuleshov, represent the beginning of a wider, more socially applicable interpretation of Article 8? It is arguable that there is, in principle, little difference between the nature of Mr Qazis defence and that of Mrs Stanková. Further, there is little difference between the facts of Stanková and those in Michalak where the Court of Appeal held that on a claim for possession against a non-successor, the county court was not required to investigate the individual circumstances of the defendant in order to find the conditions of Article 8 made out. Notwithstanding Stanková, the decisions in Qazi, Kay and Michalak remain binding on all English and Welsh Courts, up to and including the Court of Appeal. It remains to be seen what the House of Lords will decide when, as they inevitably will have to, they consider these issues for a third time.
[1] Earlier parts of this article appeared at [2007] JHL 55, [2007] JHL 87 and [2008] JHL 14.
[5] [1999] 28 EHRR CD 175
[7] See [2007] JHL 87. The following Article 1 of Protocol No. 1 cases have been heard in Strasbourg since Part 2 of this article was published, viz J.A. Pye (Oxford) Ltd v UK Application no. 44302/02, 30 August 2007 (Chamber of the Fourth Section decision reversed); Akimova v Azerbaijan Application no. 19853/03; 27 September 2007; Werle v Romania Application no. 26521/05, 13 December 2007; Gashi v Croatia Application no. 32457/05, 13 December 2007; Pietrzak v Poland Application no. 38185/02, 8 January 2008; Maslenkovi v Bulgaria Application no. 50954/99, 8 November 2007; Subocheva v Russia Application no. 2245/05, 15 November 2007; Ilić v Serbia Application no. 30132/04; 9 October 2007
[9] Application no. 59532/00; 29 July 2004. Note that, although Mrs Blecic subsequently referred the case to the Grand Chamber, it held, by a majority that the application was incompatible rationis temporis and that it was unable to take cognisance of the merits 8 March 2006.
[14] Surugiu v Romania 20 April 2004; Application No. 48995/99.
[15] Application no. 58255/00; 18 November 2004
[16] Application no. 47148/99; 22 May 2005
[19] Application No. 4143/02; 16 November 2004. See too Giacomelli v Italy Application no. 59909/00; 2 November 2006.
[20] See Hatton and Others v United Kingdom .
[21] Application No 55723/00; 9 June 2005. See too See Ledyayeva, Dobrokhotova, Zolotareva and Romashina v Russia Application no. 53157/99. 53247/99, 53695/00 and 56850/00; 26 October 2006.
