Last Updated on September 8, 2022 by LawEuro
Information Note on the Court’s case-law 265
August-September 2022
Judgment 8.9.2022 [Section V]
Article 8
Positive obligations
Article 8-1
Respect for home
Failure to protect applicant against new owner who unlawfully and forcibly entered his home preventing further access to it; interference through unlawful eviction by bailiff: violation
Facts – The applicant lived in an apartment of a residential building on the basis of an agreement on “the use of premises”. The agreement had been concluded with the then-owner of the building, was extended several times and granted the applicant priority in the conclusion of a new agreement. The property was subsequently sold to another private entity. After the sale, the applicant made payments to the new owner for the use of the premises and continued to do so after the expiry of the agreement, assuming that it had been de facto extended. When he refused to sign a short-term tenancy agreement without the right to seek extension, the new owner sent him a letter requesting him to vacate the premises and stopped accepting his payments. The applicant refused to move out and brought civil proceedings against the new owner, seeking recognition of the fact that the agreement on “the use of premises” had been a tenancy agreement, and that there had therefore been a de facto tenancy relationship between him and the new owner.
The new owner, with the help of armed private security guards, then forcibly opened the first door to the applicant’s home. The applicant called the police who arrived at the scene but subsequently left, having informed him that he had to submit his complaint at the police station. When the applicant left his apartment the next day, inter alia to make a criminal complaint, the outside door lock was changed and the guards then prevented him from entering the apartment over the following weeks. Despite the applicant’s persistent pleas, the police did not intervene.
Subsequently, a bailiff enforced the new owner’s court order on entry into possession against the previous owner. The second door to the apartment was forcibly opened in the presence of police. The applicant arrived after the police had left and the bailiff continued to enforce the order, despite the applicant informing him of his identity and the fact that he was the tenant of the apartment. The applicant called the police in relation to the incident, who did not intervene. All movable property and belongings were removed from the apartment in front of the applicant and taken to a storage facility, where he could retrieve them.
The applicant’s attempts to bring criminal and civil proceedings against both the new owner and the bailiff were ultimately unsuccessful. Disciplinary proceedings requested by the State police and in relation to the bailiff’s actions concluded through finding no grounds for disciplinary liability.
Law – Article 8:
(a) Applicability – The applicant had had sufficient and continuous links with the apartment for it to be regarded as his “home”. It had been his actual place of residence for more than three years until he had been denied further access to it. At least for a certain period of time, he had had a lawful basis to reside there and at the time of the interference, a legal claim concerning his rights to reside there had been pending before the domestic courts. The fact that he had been forced out of the apartment – one of the aspects complained of before the Court – could not be invoked to argue that the apartment had thereby ceased to be his “home”. The absence of registration was also insufficient to conclude that the applicant had not established his home there.
(b) Positive obligations to protect the applicant against the actions of the new owner – A private entity had owned the apartment and, without any decision by a public authority empowering it to do so, it had forcibly entered into the applicant’s home and prevented him from further access to it. The police had been well aware of the situation as it had been developing as the applicant had called them numerous times and they had come and inspected the scene, and been able to observe that he, in all likelihood, had been living there. In those circumstances, the respondent State’s positive obligations to ensure effective protection of the applicant’s right to respect for his home had been triggered. Nevertheless, the police had refused to intervene.
The protection of the right to respect for one’s home was not limited to lawfully occupied premises. Under domestic law, too, no person could be evicted without a valid eviction order from a court, including those occupying residential premises arbitrarily (i.e. without a valid tenancy agreement). The police had even explained that fact to the representatives of the private entity but had not undertaken any further actions.
Furthermore, despite the applicant’s pleas, the police had failed to undertake any practical steps also at a later stage of the dispute, even though he had remained permanently locked out of his home and even after the institution of criminal proceedings. The police inactivity, which had apparently been a common practice at the given time, had not only failed to prevent but also indirectly encouraged further unlawful actions on the part of the private entity.
The Court’s case-law did not suggest that the positive obligation in this context required a criminal-law remedy. Nonetheless, a criminal investigation had been carried out to determine, inter alia, whether the offence of breaching the inviolability of the home had been committed. The investigation, in its relevant part, had been discontinued, with the conclusion that the applicant had not been the tenant of the apartment but rather “the person using the premises”. The decisions had included no analysis of whether the applicant had in fact lived in the apartment and whether it might have constituted his “home”, meriting the protection of its inviolability. Since the applicant’s right to his home had not been considered to be engaged, the lawfulness of the private entity’s actions had not been assessed. Accordingly, the criminal investigation had not analysed all the pertinent facts of the case and therefore had been too limited in scope, effectively offering no protection in a situation where the tenancy rights with respect to the person’s home had been in dispute.
In consequence, the public authorities had not taken appropriate steps to secure the applicant’s right to respect for his home.
(c) The lawfulness of the eviction from the applicant’s home by the bailiff – The bailiff’s actions had amounted to an eviction, resulting in the applicant’s loss of his home, which was the most extreme form of interference with the right to respect for one’s home. It was not plausible, in the circumstances, that the bailiff had been unaware that the applicant had been living in the apartment, and of the ongoing dispute about his tenancy rights, Nonetheless, he had proceeded to carry out the enforcement of the order on entry into possession. Further, in the absence of a valid eviction order, the impugned interference had not had a lawful basis.
The present case had to be distinguished from those where the eviction had been based on possession orders (McCann v. the United Kingdom, Ćosić v. Croatia) as the order on entry into possession had addressed only the relationship between the previous owner and the new one, the applicant’s right to reside having no relevance.
The Government had further argued that the applicant could have sought restoration of his physical possession of the apartment by bringing civil proceedings. However, such a mechanism placed a disproportionate burden on tenants, who were forced to defend their rights through civil litigation after having already lost their home, could not be regarded as an adequate procedural safeguard. A legal dispute had clearly existed between the applicant and the new owner, and the domestic law had required such disputes to be decided by a court prior to the eviction, which had not happened. In that respect, the case had to be distinguished from case-law involving court-ordered evictions (Vrzić v. Croatia, F.J.M. v. the United Kingdom (dec.)), where the Convention did not require that the tenants be entitled to seek a proportionality assessment where possession was being sought by private-sector property owners. In contrast, the applicant in the present case had been evicted without the lawfulness of the interference having been determined, and moreover where the requirement of a prior judicial review had been expressly laid out in domestic law.
The domestic regulatory framework had had some procedural safeguards, including the need for a court order for evictions and the presence of police during the entry into possession procedure. However, those had been effectively rendered inoperative, as the domestic authorities had failed to adhere to them. Furthermore, the mere existence of a regulatory framework for disciplinary and criminal liability could not be viewed as a procedural safeguard capable of preventing justified interferences or ensuring that due respect be afforded to interests protected by the Convention.
Conclusion: violation (six votes to one).
The Court also held, by six votes to one, that there had been a violation of Article 13 taken in conjunction with Article 8, on account of the fact that the applicant had had no effective remedy.
Article 41: EUR 8,000 in respect of non-pecuniary damage. Claim in respect of pecuniary damage dismissed.
(See also McCann v. the United Kingdom, 19009/04, 13 May 2008, Legal Summary; Ćosić v. Croatia, 28261/06, 15 January 2009, Legal Summary; Vrzić v. Croatia, 43777/13, 12 July 2016; F.J.M. v. the United Kingdom (dec.), 76202/16, 6 November 2018, Legal Summary)
Leave a Reply