Article 8: Right to respect for private and family life

BLA British Landlords Association coursesArticle 8: Right to respect for private and family life

Article 8 provides:

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.

Blecic v Croatia Application no 9 2/00; 29 July 2004

Possession based on tenant’s absence (due to armed conflict) not manifestly disproportionate and within state’s margin of appreciation In 1953 Mrs Blecic, with her husband, obtained a specially protected tenancy in Zadar, Croatia. After her husband’s death she became the sole holder of the tenancy. In July 1991 she went to stay with her daugher in Rome for the summer. She locked the flat and left all her belongings in it. She asked a neighbour to pay her bills. 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 Mrs Blecic had been absent from the flat for six months without justified reason. The court terminated the tenancy but there was 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 (First Section), sitting as a chamber, considiered whether or not the Croatian courts’ decisions to terminate Mrs Blecic’s specially protected tenancy amounted to a violation of ECHR 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 Mrs Blecic’s 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 State’s 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.

Chapman v UK Application no 272 8/9 ; (200 ) 0 BHRC 48

Eviction of gypsies whose caravans were stationed in contravention of planning laws and who had nowhere else to go not in breach of art 8; ECtHR jurisprudence does not acknowledge a right to a home The applicants were Roma gypsies who stationed their caravans on land that they owned. They were prohibited from lawful occupation by planning laws and faced eviction pursuant to enforcement notices, without the prospect of alternative lawful sites for their homes being available.

Article 8: Right to respect for private and family life

2 Chapter A Human rights and housing They contended, among other things, that such action would amount to a breach of their right to respect for their homes (article 8). The ECtHR rejected that contention. Although the court found that the enforcement action was an interference with the right to occupy a home by a public authority, it was satisfied that the conditions in article 8(2) for lawful interference were satisfied. The state’s 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. The court held that, in considering whether a requirement that an individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether the home was established unlawfully. 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. In a powerful dissenting judgement, eight judges of the ECtHR took issue with that statement, drawing attention to the court’s finding in Mazari v Italy that refusal of housing might in certain circumstances engage article 8.

Connors v UK Application no 74 /0 ; [2004] HLR 2; (2004) Times 0 June; 27 May 2004

Statutory scheme for summary eviction of gypsies from council site not justified under art 8; vulnerable position of gypsies such that they require special consideration Mr Connors and his family were gypsies. For 14 or 15 years, they lived on a gypsy site run by Leeds City Council. Mr Connors had a contractual licence to occupy one plot where he lived with his wife and four children.
Several members of the family suffered from health problems. An adult daughter lived on a neighbouring plot with a man who became her husband. After allegations of nuisance made against Mr Connors’ adult sons, who were visitors to the site, and his daughter’s husband, the council served notice requiring the family to vacate both plots. An application for judicial review of the council’s decision to determine the licences was unsuccessful. The council then obtained a possession order in proceedings brought under CCR Ord 24 (the former summary procedure available to land owners who entered land without permission.). In proceedings before the ECtHR, Mr Connors complained that, among other things, the eviction of his family breached ECHR articles 8 and 14. The parties agreed that article 8 applied and that the eviction was an interference with his right to respect for his private life, family life and home. It was also agreed that the interference was ‘in accordance with the law’ and pursued a legitimate aim. Accordingly, the issue before the ECtHR was whether the inter- ference was ‘necessary in a democratic society’. Mr Connors stated that he
had no control over the conduct of visitors to the site and that it was not reasonable or proportionate to evict him and his family for reasons relating to other adults. Considering the margin of appreciation, the ECtHR stated that in spheres such as housing, which play a central role in the welfare and economic policies of modern societies, it will respect the legislature’s judgment
as to what is in the general interest unless that judgement is manifestly without reasonable foundation. However, the vulnerable position of gypsies as a minority group 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 children’s education. Such serious interference with article 8 rights required 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 mere fact that antisocial
behaviour occurs on local authority gypsy sites cannot, in itself, justify a summary power of eviction, since such problems also occur on local authority housing estates and other mobile home sites. The ECtHR was not persuaded that 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. The ECtHR awarded damages in respect of distress and suffering of E14,000 and costs.

Di Palma v UK ( 988) 0 EHRR 49 Forfeiture of applicant’s flat not in breach of art 8

The claimant was a long lessee of a flat. It was forfeited by her landlord for relatively low arrears of service charges. She alleged violation of article 8 and article 1 of the First Protocol. The Commission rejected both complaints as inadmissible, stating: Article 8: Right to respect for private and family life 4 Chapter A Human rights and housing … the Commission finds that any interference with the applicant’s right to respect for her home which the forfeiture of her lease engendered was in conformity with Article 8(2) as a measure which was in accordance with the law and necessary in a democratic society for the protection of the right of others. and It would not appear that the mere fact that an individual was the unsuccessful party to private litigation concerning his tenancy arrangements with a private landlord could be sufficient to make the State responsible for an alleged violation of Article 1 of the First Protocol. Hence the respondent Government was not required under this provision to take further measures to secure the applicant’s peaceful enjoyment of her possessions.

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