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Housing and Human Rights lessons from Strasbourg (5)
[2008] JHL 85
Article 8 as a defence to possession claims
Part 4 of this article concluded by posing two questions: In the light of Stanková v Slovakia 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? Or was Stanková an aberration? An answer has been given by the ECtHR in McCann v UK Mr McCann and his wife were joint tenants. Mrs McCann was rehoused by the council on the grounds of domestic violence. At the local authoritys instigation, she signed a notice to quit. She did not realise that the notice to quit would bring the joint tenancy to an end. Mr McCann sought to transfer the tenancy into his own name, but was told that the tenancy had come to an end and given notice to vacate. However, the local authoritys possession claim was dismissed. Following Harrow LBC v Qazi [2003] UKHL 43; [2004] 1 AC 983, the Court of Appeal ([2003] EWCA Civ 1783; [2004] HLR 27) allowed the local authoritys appeal. The House of Lords subsequently refused a petition for leave to appeal. Mr McCann was evicted in March 2005. He complained to the ECtHR, alleging that there had been a breach of his Article 8 rights.
The ECtHR found that there had been a violation of Article 8. It noted that whether a property is to be classified as a home is a question of fact and does not depend on the lawfulness of the occupation under domestic law. The parties agreed that, in Mr McCanns case, the right to respect for the home contained in Article 8 was engaged and that the effect of the notice to quit served by his wife, together with the possession proceedings, was to interfere with his right to respect for his home. The Court considered that this interference was in accordance with the law and pursued the legitimate aim of protecting the rights and freedoms of others in two respects. First, it protected the local authority's right to regain possession of the property as against an individual who had no contractual or other right to be there. Secondly, the interference also pursued the aim of ensuring that the statutory scheme for housing provision was properly applied. The Court accepted that it is only by limiting the protection of the Housing Acts to the categories to which they apply that the policy underlying the Acts can sensibly be implemented. The central question in Mr McCanns case was whether the interference was proportionate to the aim pursued and necessary in a democratic society. The Court rejected the UK Government's argument that the reasoning in Connors v United Kingdom was to be confined only to cases involving the eviction of gypsies or cases where the applicant sought to challenge the law itself rather than its application in his particular case. It stated
The loss of one's home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal
Here, the local authority chose to bypass the statutory scheme by requesting Mrs McCann to sign a common law notice to quit. It did not appear that it gave any consideration to Mr McCanns right to respect for his home. It was not open to the county court, in the possession claim, to consider any issue concerning the proportionality of the possession order. As in Connors, the procedural safeguards required by Article 8 for the assessment of the proportionality of the interference were not met by the possibility of Mr McCann applying for judicial review. The judicial review procedure is not well-adapted for the resolution of sensitive factual questions which are better left to the County Court responsible for ordering possession.
The ECtHR did not accept that giving occupiers the right to raise issues under Article 8 would have serious consequences for the functioning of the system or for the domestic law of landlord and tenant. It would be only in very exceptional cases that occupiers would succeed in raising an arguable case which would require a court to examine the issue. In the great majority of cases, orders for possession could continue to be made in summary proceedings. Turning to the question of damages, the Court indicated that it was far from clear that, had a domestic tribunal been in a position to assess the proportionality of the eviction, the possession order would not still have been granted. Deciding on an equitable basis, the Court awarded non-pecuniary damage of EUR 2,000.
The House of Lords has already had the opportunity to consider the ECtHR decision in McCann. Although it heard the appeal in Birmingham CC v Doherty in March 2008, it later invited further written submissions in the light of McCann. Judgement is awaited. There is not space in this article to consider the full implications of McCann for possession claims in England and Wales and indeed it would be premature to so before the House of Lords speeches in Doherty are handed down.
Protection against unlawful eviction and interference by others
In some recent cases occupants have successfully relied upon Article 8 where there has been a failure on the states part to protect them against interference or unlawful eviction by others.
Mr Surugiu owned the land next to his home in Romania, but the local land commission failed to enforce his title to it and granted rights over part of it to a third party (M). M and his family then regularly went onto the land to cut and gather grass, dump manure, and threaten Mr Surugiu. Eventually he was barred from his own home by the actions of the M family who threatened to demolish it. He brought proceedings in trespass but obtained no relief despite four declarations that the land was his. Eventually, the national government revoked Ms rights, imposed an administrative penalty on him (after an 18 month delay), and Mr Surugiu was able to return. The ECtHR found a violation of his Article 8 right to respect for his home. The state authorities had not taken the steps that they could reasonably have been expected to have taken to stop the repeated interference with Mr Surugius right to peaceful enjoyment of his home. He was awarded 4000 euros in compensation.
Prokopovich v Russia involved eviction by state officials acting unlawfully. In 1988 Ms Prokopovich and her partner, Mr Filippov, moved into a flat provided by Mr Filippovs employer, a State enterprise. Although they never married, they lived together as husband and wife. Mr Filippov later died. Early in September 1998, on returning to the flat, Ms Prokopovich found that the door had been broken open and that books and other household items were being loaded onto a lorry in the presence of Mr Filippovs son, several policemen in civilian clothing, and a representative of the housing maintenance authority. Once the removal was completed, Ms Prokopovich was told to vacate the premises immediately. When she refused to do so, she was thrown out of the flat by force. The door was replaced and she was not given keys. She alleged a breach of Article 8.
The ECtHR noted that the concept of home within the meaning of Article 8 is not limited to those which are lawfully occupied or which have been lawfully established. Home is an autonomous concept which does not depend on classification under domestic law. Whether or not a particular habitation constitutes a home which attracts the protection of Article 8 § 1 depends on the factual circumstances, namely, the existence of sufficient and continuous links with a specific place. It found that Ms Prokopovich had sufficient and continuing links with Mr Filippovs flat for it to be considered her home for the purposes of Article 8. Her eviction from the flat by State officials constituted an interference with her right to respect for her home by a public authority. Article 90 of the RSFSR Housing Code permitted eviction only on the grounds established by law and only on the basis of a court order. It followed that the interference could not be considered to be in accordance with the law, and that there was therefore a breach of Article 8. There was no cause to reimburse her for the flats value because she did not have title to it. However, she undoubtedly sustained significant non-pecuniary damage which cannot be compensated solely by the finding of a violation. Less than a week after the sudden death of her partner she was evicted by force from the flat where they had lived for ten years and locked out of it. She found herself in a precarious housing situation exacerbated by feelings of frustration and injustice. [She] must have experienced considerable stress and anxiety in consequence of that and in settling elsewhere. The ECtHR accordingly awarded her EUR 6,000 in respect of non-pecuniary damage.
Novoseletskiy v Ukraine involved failure to enforce a court order allowing a tenant free use of a flat. In June 1995 Mr Novoseletskiy was granted indefinite authorisation to occupy and use a two-room flat by his employer, the Melitopol State Teacher Training Institute. In August 1995 he resigned from the Institute and went to live in Vladimir, Russia . In October 1995, the Institute annulled its June decision and granted T., another of its employees, authorisation to occupy and use the flat. In November 1995 T., accompanied by four witnesses, entered the flat. They noted that the flat was empty and made a statement to that effect. According to Mr Novoseletskiy, his possessions were removed or stolen from the flat. In February 1996, Mr Novoseletskiy filed a civil claim against the Institute with the Melitopol City Court, claiming compensation for pecuniary and non-pecuniary damage and seeking to assert his right to free use of the flat in question. In May 1996, the Institute annulled its October 1995 decision, and restored Mr Novoseletskiys rights to the flat. The Ukrainian courts held that he had the right to free use of the flat because his absence was only temporary, but his claim for damages was dismissed. There were delays in enforcement of the order. In March 2001, Mr Novoseletskiy and the court bailiff certified that the flat was empty and unfit for human habitation and needed substantial repairs before it could be used. Among many other things, the sanitary fittings and electrical wiring had been seriously damaged, the sink and surrounding pipes had been removed, and the contents of the sewage pipes emptied into the flat. Further, T. refused to hand over the keys to the flat to the court bailiff. In February 2004 Mr Novoseletskiy complained that since March 2001 he had been unable to live in the flat owing to its deplorable state and that there had been a breach of Article 8.
The ECtHR noted that although Article 8 is primarily intended to protect the individual against arbitrary interference by public authorities, it may also entail the adoption of measures to secure Article 8 rights by public authorities even in the sphere of relations between individuals. A fair balance has to be struck between the competing interests of the individual and of the community as a whole. The ECtHR did not consider that the legal complexity of the case was such as to warrant proceedings comprising three hearings and lasting three years, particularly in view of what was at stake in terms of the applicant's private and family life. Further, it was particularly struck by the rejection of Mr Novoseletskiys claim for damages, on the ground that the law made no provision for compensation in respect of non-pecuniary damage in landlord-tenant disputes. It held that that the Ukrainian courts had not acquitted themselves fully of the tasks incumbent upon them as part of the positive duty of the State under Article 8. The Court also noted that the Institute was a State-owned higher-education establishment which had power, subject to the Ukrainian Housing Code and State supervision, to allocate flats. It therefore performed public duties assigned to it by law and under the supervision of the authorities, with the result that it could be considered a governmental organisation. The ECtHR therefore rejected the Governments arguments seeking to deny any State liability for the acts and omissions of the Institute. In view of the judicial decisions and the conduct of the relevant authorities, the ECtHR found that the State had not discharged itself of its positive obligation to restore and protect Mr Novoseletskiys effective enjoyment of his right to respect for his home and his private and family life. Accordingly, there was a violation of Article 8.
Environmental pollution
It has long been established that failure by state authorities to deal with environmental pollution affecting homes may result in breaches of Article 8. In López Ostra v Spain a domestic court dismissed a claim following the malfunction of waste-treatment plant. This had resulted in the release of gas fumes, pestilential smells and contamination, which immediately caused health problems and nuisance. The domestic court found that although the plants operation could unquestionably cause nuisance, it did not constitute a serious risk to the health of the families living in its vicinity but, rather, impaired their quality of life, though not enough to infringe the fundamental rights claimed. The ECtHR decided that the Spanish State had not succeeded in striking a fair balance between the interest of the towns economic well-being that of having a waste-treatment plant and the applicants effective enjoyment of her right to respect for her home and her private and family life. There was a violation of article 8. It stated
severe environmental pollution may affect individuals well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health. .. Whether the question is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants rights under paragraph 1 of Article 8
or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, and in any case the State enjoys a certain margin of appreciation.
Two more recent cases illustrate how the ECtHR applies Article 8 in such cases. Gomez v Spain involved excessive night-time noise from pubs, bars and discotheques in Valencia . In 1983, the council resolved not to permit further night clubs to open in the area where Mr Gomez lived but the resolution was never implemented and more clubs opened. By 1993 a council commissioned expert found that night-time noise levels were excessive and unacceptable, reaching over 100db at 3.55am on Saturday mornings. By 1997 the council declared the applicants neighborhood an acoustically saturated zone but three days later granted a licence for a new nightclub in Mr Gomezs building (later quashed on appeal).
The ECtHR set out the following statement of principle
Article 8 of the Convention protects the individual's right to respect for his private and family life, his home and his correspondence. A home will usually be the place, the physically defined area, where private and family life develops. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area. Breaches of the right to respect of the home are not confined to concrete or physical breaches, such as unauthorised entry into a person's home, but also include those that are not concrete or physical, such as noise, emissions, smells or other forms of interference. A serious breach may result in the breach of a person's right to respect for his home if it prevents him from enjoying the amenities of his home.
Applying that approach, it held the state authorities had failed to take action to put a stop to third-party breaches of Mr Gomezs rights. The breaches were caused by the volume of noise at night, beyond permitted levels, extending over many years. The court awarded compensation for the cost of double glazing (879 euros) and a further 3005 euros for non-pecuniary damage.
In Fadeyeva v Russia the applicants home in the town of Cherepovets was situated 450 metres from the perimeter of a substantial steel-making plant. In 1990 the national government adopted a resettlement scheme because the concentration of toxic substances in the towns air exceeds the acceptable norms many times. However, the applicant was not offered resettlement. After becoming concerned as to the effect on her familys health, she took proceedings in the domestic courts to compel the authorities to move her, but no resettlement was offered. She complained to the ECtHR that the states failure to protect her private life and home from severe environmental pollution amounted to a breach of Article 8 ECHR.
The Court held that in order to raise an issue under Article 8 the interference must directly affect the applicant's home, family or private life and that the adverse effects of environmental pollution must attain a certain minimum level if they are to fall within the scope of Article 8. Proof of that minimum level of interference may
follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar un-rebutted presumptions of fact. It should be also noted that it has been the Court's practice to allow flexibility in this respect, taking into consideration the nature of the substantive right at stake and any evidentiary difficulties involved.
Although the applicant had no medical evidence directly linking her ill health to the toxins produced by the steel plant, the ECtHR accepted that the prolonged exposure inevitably made the applicant more vulnerable to various diseases and adversely affected the quality of life at her home. On that basis the actual detriment to the applicant's health and well-being reached a level sufficient to bring it within the scope of Article 8. The fact that the steel plant was privately owned did not absolve the state of responsibility as it had the powers to prevent or reduce the plants emissions. The positive obligation to protect the applicants human rights was engaged. On the question of whether Article 8(2) justification could be made out, the Court was satisfied that continued operation of the plant was a legitimate aim and in the economic interests of the state. The determinative issue was whether the authorities have struck a fair balance between the interests of the applicant and those of the community as a whole. The Court concluded that
although the situation around the plant called for a special treatment of those living within the zone, the State did not offer the applicant any effective solution to help her move from the dangerous area. Furthermore, although the polluting enterprise at issue operated in breach of domestic environmental standards, there is no information that the State designed or applied effective measures which would take into account the interests of the local population, affected by the pollution, and which would be capable of reducing the industrial pollution to acceptable levels.
It awarded 6000 euros non-pecuniary damages.
Article 14
Article 14 provides
The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Different types of tenancies
Article 14 is not free standing. It can only be invoked in conjunction with another ECHR right. However, in view of Larkos v Cyprus , it was seen by some as a means by which it could be argued that a difference of treatment between different types of tenancy might be discriminatory and so aid allegations of breaches of Article 8 or Article 1 of Protocol No. 1. In 1967 Mr Larkos, a civil servant, rented a house from the government of Cyprus . He lived there with his wife and four children. The agreement had many of the features of a typical contract for a lease. In 1987 the government served a notice to quit and took eviction proceedings. Mr Larkos claimed that he enjoyed protection under the Cyprus Rent Control Law 1983. The government claimed that he was outside the protection of that legislation because the premises had been allocated to him by an administrative order because of his position in the civil service. The District Court of Nicosia made a possession order, finding that the Rent Control Law only bound private owners of property and not the government. The ECtHR, finding that there had been a violation of Article 14 in conjunction with Article 8, stated that under Article 14
a difference in treatment is discriminatory if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.
The court found that it was significant that the government rented the property to Mr Larkos in a private law capacity. He was in a relevantly similar situation to that of other private tenants. The government did not adduce any reasonable or objective justification for the distinction between them, even having regard to the margin of appreciation.
Larkos has rarely been followed by the ECtHR and a HUDOC case search reveals that it has only been referred to in a handful of subsequent cases. Apart from Connors v UK and Karner v Austria (see below), none of them involved housing issues. The reason may well be that, unlike the Cypriot government, most states are able to adduce reasonable and objective justifications for distinctions between different types of tenancy. If that is done, the ECtHR is likely to apply a wide margin of appreciation and to respect the legislatures judgment.
Different treatment due to applicants personal characteristics
Article 14 is likely to be of considerably more help to applicants if differences in treatment are based upon their personal characteristics, especially if they make them vulnerable. For example in Connors v UK, where travellers were evicted from a local authority site, the ECtHR stated that, when considering the margin of appreciation, the vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases. There is therefore a positive obligation for states to facilitate the gypsy way of life. The ECtHR referred to the seriousness of evicting Mr Connors and his family with consequent difficulties in finding a lawful alternative location for their caravans, in coping with health problems and young children and in ensuring the childrens education. It said that such serious interference with Article 8 rights require particularly weighty reasons of public interest by way of justification and the margin of appreciation to be afforded to the national authorities should be correspondingly narrowed. The ECtHR was not persuaded there was any particular feature about local authority gypsy sites which would render their management unworkable if they were required to establish reasons for evicting long-standing occupants. Even allowing for the margin of appreciation, the ECtHR was not persuaded that the necessity for a statutory scheme which permitted the summary eviction of Mr Connors and his family had been sufficiently demonstrated by the government. The power to evict without the burden of giving reasons which were liable to be examined on the merits by an independent tribunal had not been convincingly shown to respond to any specific goal or to provide any specific benefit to members of the gypsy community. The ECtHR found that the eviction Mr Connors and his family from the local authority site was not attended by the requisite procedural safeguards, namely the requirement to establish proper justification for the serious interference with his rights and consequently could not be regarded as justified by a pressing social need or proportionate to the legitimate aim being pursued. There was, accordingly, a violation of Article 8.
Karner v Austria is an example of different, unjustifiable treatment and, therefore, discrimination, due to homosexuality. From 1989 Mr Karner lived in a rented flat in Vienna with his partner, who was the tenant. They shared the outgoings on the flat. In 1993 the tenant developed AIDS. He designated Mr Karner as his heir. After the tenant died, the landlord of the flat brought proceedings against Mr Karner for termination of the tenancy. Mr Karner relied upon section 14 of the Austrian Rent Act which provides, inter alia, that on the death of the main tenant of a flat, a life companion shall be entitled to succeed to the tenancy. For the purposes of that provision, 'life companion' shall mean a person who has lived in the flat with the former tenant until the latter's death for at least three years, sharing a household on an economic footing like that of a marriage . Although the District Court and the Regional Civil Court dismissed the landlord's claim for possession, the Austrian Supreme Court granted the landlord's appeal, quashed the lower courts' decisions and terminated the lease. It held that in 1974 the legislature could not have contemplated that a gay or lesbian partner would be a form of life companion.
The ECtHR rejected the Austrian government's application to strike out the case following the death of Mr Karner. By a majority of six to one, it held that Mr Karner's complaint related to the manner in which a difference in treatment adversely affected the enjoyment of his right to respect for his home guaranteed under Article 8. If it had not been for his sexual orientation, he could have been accepted as a life companion. Accordingly, Article 14 applied. It stated that a difference in treatment is discriminatory if it has no objective and reasonable justification, i.e. if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. As the Austrian government had not offered convincing and weighty reasons justifying a narrow interpretation of the Rent Act preventing a surviving partner of a couple of the same sex from relying on that provision, there had been a violation of Article 14. In the absence of an injured party the Court decided that no award of compensation for pecuniary damage could be made, but awarded costs against the Austrian government.
Article 2 of Protocol No 4
Article 2 of Protocol No 4 (which is not incorporated intro the Human Rights Act 1998) provides
Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. ...
In Nagovitsyn v Russia the applicant who lived in Kirov, complained that the refusal of the state to provide him with a flat in Moscow constituted a breach of his right to liberty of movement guaranteed by Article 2 of Protocol No 4. The ECtHR found that complaint was manifestly ill-founded. It noted that Mr Nagovitsyn was not in any way prevented from moving to Moscow or renting or purchasing a flat there. The fact that the domestic courts refused to allocate him free housing in Moscow could not be considered an interference with his rights under article 2 of Protocol No 4.
Earlier parts of this article appeared at [2007] JHL 55, [2007] JHL 87 and [2008] JHL 14.
Surugiu v Romania 20 April 2004; Application No. 48995/99.
Application no. 58255/00; 18 November 2004
Application no. 47148/99; 22 May 2005
Application No. 4143/02; 16 November 2004. See too Giacomelli v Italy Application no. 59909/00; 2 November 2006.
See Hatton and Others v United Kingdom .
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.
Application no. 40016/98; 24 July 2003
cf, in a UK context, Fitzpatrick v Sterling Housing Association [2001] 1 AC 27 and Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 3 WLR 113;. It is unlikely that S v United Kingdom (1986) 47 DR 274, in which the Commission specified a legal right of occupation as essential to a finding of home and dismissed an application by the surviving partner of a deceased lesbian tenant, still reflects ECHR law. S was not referred to in the judgment in Karner.
App No 6859/02, 24 January 2008