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Article 8: An update following two recent decisions

We are grateful to “Nearly Legal” for highlighting two recent cases from the European Court of Human Rights that may be cited in courts herel; Brezec v Croatia [2013] ECHR 705 (18/7/13) and Rousk v Sweden [2013] ECHR 746 (25/7/13).

In the former case the applicant’s flat in Dubrovnik was sold by the State to a private company and in 2005 they sought to evict her on the basis that she had no basis to remain there. The relevant law merely stated: “An owner has the right to seek repossession of his or her property from a person in whose possession it is.”  After several hearings and appeals, the applicant’s eviction took place in November 2010. She applied to the ECtHR alleging a violation of Article 8 ECHR and the Court found that the Croatian Courts had limited themselves to finding that B’s occupation was without legal basis without proceeding to analyse whether B’s eviction from the flat which she had occupied for 40 years, while paying rent, was proportionate. The Court also noted that the company did not raise any issue about B’s right to occupy the flat when it purchased the property and it delayed 8 years before taking proceedings. The ECtHR found that there had been a breach of the procedural safeguards required by Art 8 and that B’s rights had been violated.

The two noteworthy elements of this case are (1) it involved a private company yet art.8 was still held to apply (though the Croatian Government “had submitted no response as to the privatisation process” and the applicant argued that a state-run agency continued to own a 49% stake in the now private company) and (2) it was relevant to the question of proportionality that the applicant’s occupation had gone unchallenged for a significant period of time (see paragraphs 48 and 49 of the judgment).

In the second case an order for sale was sought of the applicant’s home because of income tax debts, though these were the subject of dispute and challenge (and of very modest amount at the time of eviction).  He also suffered from a serious depressive condition.

The ECtHR found that there was a violation of the applicant’s Article 1 Protocol 1 rights. By the time of the eviction, the State could have satisfied itself that his enforcement debts amounted to about 800 EUR and it could have taken alternative enforcement action, which would have avoided the loss of his home (he had other assets, such as a car, which could have been seized and would have covered the decreasing debt – see paragraph 125 of the Judgment). In respect of the Article 8 complaint, the Court found that he was unable to pursue his appeal to the higher courts in an effective way because his eviction and the sale had already taken place, in circumstances where there was genuine dispute about the amount of tax debt owed to the State. This meant that he had been deprived of the benefit of the requisite Article 8 procedural safeguards.

One can see immediately the potential arguments that may be submitted in, say, a non-secure tenancy possession case where the notice to quit was served because of rent arrears which had become extinguished or significantly reduced by a housing benefit payment(s) by the time of the claim/order/eviction.