The ECtHR allowed the claim under Article 2 (right to life). Article 2 does not solely concern deaths resulting from the use of force by agents of the state. It also lays down a positive obligation on states to take appropriate steps to safeguard the lives of those within their jurisdiction. There is a positive obligation to implement regulatory measures, to inform the public adequately about any life-threatening emergency, and to ensure that any deaths caused thereby are followed by a judicial enquiry. The choice of particular practical measures to ensure the effective protection of citizens falls within the state’s margin of appreciation. An impossible or disproportionate burden must not be imposed on the authorities without consideration of the operational choices which they must make in terms of priorities and resources.

However, in this case, ‘the court [saw] no justification for the author-ities’ failure to prepare the defence infrastructure for the forthcoming hazardous season in 2000’ (para 151). There was no explanation for the failure to set up temporary observation posts. The facilities were not maintained adequately and they took no measures at all up to the day of the disaster. The mortal risk was foreseeable. Furthermore, there was a causal link between these serious administrative flaws and the death of Mr Budayev. The ECtHR awarded €30,000 to Mrs Budayeva for the violation of Article 2 and the injuries sustained by her and the members of her family. However, it dismissed her complaint under Article 1 of Protocol No 1. In a situation where lives and property were lost as a result of events occurring under the responsibility of the public authorities, the scope of measures required for the protection of dwellings was indistinguishable from the scope of those to be taken in order to protect the lives of the residents.

However, positive obligations as regards the protection of property from weather hazards do not necessarily extend as far as in the sphere of dangerous activities of a manmade nature. A distinction must be drawn between the positive obligations under Article 2 and those under Article 1 of Protocol No 1. The obligation to protect the right to the peaceful enjoyment of possessions, which is not absolute, cannot extend further than what is reasonable in the circumstances. Accordingly, the authorities enjoy a wider margin of appreciation in deciding what measures to take in order to protect individuals’ possessions from weather hazards than in deciding on the measures needed to protect lives. Furthermore, in this case, the housing compensation (ie, vouchers) provided was not manifestly out of proportion to the accommodation lost.

The ECtHR noted that Article 2 ‘lays down a positive obligation on states to take appropriate steps to safeguard the lives of those within their jurisdiction’ (Öneryildiz v Turkey Application no 48939/99 para 71 and Budayeva v Russia (Budayeva v Russia)) and ‘covers not only situations where … action or omission on the part of the state led to a death … but also situations where, although an applicant survived, there clearly existed a risk to his or her life’ (Makaratzis v Greece Application no 50385/99 paras 49–55) (para 151). In this case, there was an imminent risk to the lives of those people who were at home at the time of the flooding. The court found that there was a violation of Article 2 because the government failed in its positive obligation to protect the relevant applicants’ lives. In particular, the authorities disregarded technical and safety requirements, by failing to reflect them in legal acts and regulations and allowing urban development in the area downstream from the reservoir. There was a ‘continuous failure, in breach of the relevant regulations, to establish flood zones’ (para 173). There was a violation of Article 2 in its procedural aspect due to the lack of an adequate judicial response by the authorities to the flooding. The court also found a breach of Article 8 and Article 1 of Protocol No 1. It awarded pecuniary and non-pecuniary damages.

The ECtHR reiterated that the obligation of governments under Article 1 to secure to everyone within their jurisdiction the rights and freedoms defined in the ECHR, taken together with Article 3, which provides ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’, requires states to put in place effective criminal-law provisions to deter the commission of offences against personal integrity, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. Although state authorities may not be expected to set in motion the criminal law machinery in every case where neighbours, household members or other individuals engage in trivial disputes and seek to settle an ongoing personal conflict by involving the criminal justice authorities, it is important that measures of effective protection against domestic violence and other types of harassment are put in place for vulnerable persons, including reasonable steps to prevent likely ill-treatment. Where an individual makes a credible assertion of having been subjected to repeated acts of domestic violence or other types of harassment, however trivial the isolated incidents might be, it falls on the domestic authorities to assess the situation in its entirety, including the risk that similar incidents would continue. This assessment should, above all, take due account of the psychological effect that the risk of repeated harassment, intimidation and violence may have on the victim’s everyday life. Where it is established that a particular individual has been systematically targeted and future abuse is likely to follow, apart from responses to specific incidents, the authorities may be called upon to implement an appropriate action of a general nature to combat the underlying problem. In this case, the court noted the repeated and premeditated nature of the verbal and physical assaults over several years. Some instances of violence, resulting in injuries were very serious. The repeated physical and verbal attacks caused Ms Smirnova profound mental suffering, distress and constant fear for her life and limb. This suffering was aggravated because the violence and harassment occurred in the privacy of her home. That prevented any outside help. The treatment, to which she was subjected, reached the threshold of severity falling within the ambit of Article 3. It engaged the state’s positive duty under Article 3 to put in motion the protective legislative and administrative framework. Although the principal miscreants were eventually prosecuted and sentenced to significant prison terms, it took the state authorities over twelve years to resolve the matter. There was accordingly a violation of Article 3. The ECtHR also found a breach of Article 8. It awarded €4,000 in respect of non-pecuniary damage.

The ECtHR held that:

(2) However, the legislative scheme, by virtue of which a homeless person derived her ‘civil right’ to be provided with accommodation, afforded her the opportunity of a fact-based review and then an appeal to the courts on a point of law: Housing Act 1996 s204. That was adequate protection as regards the judicial determination of that civil right. The Court said ‘the decision by the Council that it had discharged its duty to her under Part 7 of the 1996 Act was subject to judicial scrutiny of sufficient scope to satisfy the requirements of Article 6(1)’ [87].

The ECtHR noted that this was not a complex case. There were no novel points of law. Mr Anderson’s allegations had been rejected as unfounded and unspecified. Mr Anderson’s ‘civil rights and obligations’ had not been decided within ‘a reasonable time’. Accordingly, there was a breach of Article 6. The ECtHR awarded €1,500 in respect of non-pecuniary damage.

The First Section of the ECtHR considered Article 6 and Article 1 of Protocol No 1. The court reiterated that Article 6 rights:

Following Immobiliare Saffi v Italy Application no 22774/93, 28 July 1999, the ECtHR confirmed that the Italian legislation had a legitimate aim in the general interest. It re-iterated that any interference with property rights

The ECtHR dismissed both complaints. With regards Article 8, after referring to Jussila v Finland (Application no 73053/01, para 40, ECHR 2006-XIV), it stated that

With regards Article 8, the order of compulsory sale gave rise to an interference with Ms Sagvolden’s right to respect for her home. The measure was in accordance with law and pursued the legitimate aim of protecting the rights and freedoms of others. In considering whether it was necessary, and after referring to Connors v UK (Connors v UK), the court reiterated that a margin of appreciation must, inevitably, be left to the national authorities. The lawfulness of the decision to order compulsory sale of the flat was examined in detail both by the City Court and by the High Court. Those courts had particular regard to other neighbours and users and Ms Sagvolden’s interest in being able to stay with her son in the dwelling. She had the possibility of the reasonableness and the proportionality of the measure reviewed in the light of the principles under Article 8. The court was satisfied that Ms Sagvolden’s Article 8 interests were adequately safeguarded in the national decision-making process and that in reaching the decision which they did, the competent national authorities acted within their margin of appreciation.

The ECtHR unanimously held that Article 6 had been infringed. The court distinguished Bryan v United Kingdom Application no 19178/91; 22 November 1995 (decision of planning inspector) and Begum (Runa) v Tower Hamlets LBC (Begum (Runa) v Tower Hamlets LBC) (homelessness review) because in those cases ‘the issues to be determined required a measure of professional know-ledge or experience and the exercise of administrative discretion pursuant to wider policy aims’. However, in this case, ‘the HBRB was deciding a simple question of fact, namely whether there was ‘good cause’ for the applicant’s delay in making a claim’. The ECtHR stated:

The ECtHR found a breach of Article 6. The proceedings had lasted for 11 years and eight months for two levels of jurisdiction. The court reiterated that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria:

The ECtHR noted that Mr Brogan had been represented throughout the possession claim, not only by the Interim Deputy but also, in many of the court hearings, by counsel. Although Mrs Brogan had not been represented, it had been open to her to apply to be joined as a party under Family Law Act 1996 s55. She had not done so. Both could have made applications under Administration of Justice Act 1970 s36 which gives the court a broad discretionary power to adjourn possession proceedings, stay or suspend the execution of any order made for repossession, or to postpone eviction from the property for such periods as the court thinks reasonable. The ECtHR stated that such an application would have given Mr and Mrs Brogan the opportunity to pay off the mortgage and so to avoid the eviction. In view of that, the court found that the complaints were inadmissible for failure to exhaust domestic remedies.

While there was ‘cause for concern [due to] the fact … that the Interim Deputy had acted inadequately and negligently in the exercise of her duties’ and that this was ‘particularly troubling given that, on account of the particular vulnerability of persons lacking legal capacity, states may have a positive obligation under Article 8 to provide them with specific protection by the law.’ (Zehentner v Austria Zehentner v Austria), Mr and Mrs Brogan had not exhausted their domestic remedies because no complaint had been made to the Office of the Public Guardian.

It rejected his claim under Article 8 (right to respect for his home) because although he had an enforceable right to enter and occupy the flat, he had never done so and others had established their home there. It upheld his complaint that the failure to enforce the judgment amounted to a breach of Article 6 and awarded him 5,000 compensation.

It is the ECtHR’s function to review the reasoning adduced by domestic judicial authorities from the point of view of the ECHR. Where a resulting judicial decision lacks reasoning or an evidentiary basis, ensuing interference with a right may become unforeseeable and consequently fall short of the lawfulness requirement. Given that eviction is a serious interference with an individual’s right to respect for his or her home, the court attaches particular weight to the procedural safeguards afforded to that individual in the course of the decision-making process. In particular, even where the lawful right to occupation of the premises has come to an end, an individual should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles of Article 8. Lack of reasoning in a judicial decision about the grounds of application of a statute may, even where the formal requirements have been complied with, be taken into account among other factors in determining whether the measure complained of struck a fair balance. In this case, the authorities’ failure to provide adequate reasons for dismissing Mr Kryvitskyy and Ms Kryvitska’s arguments, meant that they were deprived of adequate procedural safeguards in the decision-making process concerning their right to respect for their home. There was a violation of Article 8. The court awarded €6,000 each in respect of non-pecuniary damage.

The ECtHR found that there was a violation of Article 8. The court stated that the

The central question was whether the interference was proportionate to the aim pursued and thus ‘necessary in a democratic society’. The regional court’s conclusion was based exclusively on the fact that throughout the period in which he had been living with B, Mr Zakharov had been registered as living in his ex-wife’s flat and had not asked to be removed from the register until after B’s death. The regional court did not weigh the interests of his neighbours against his right to respect for his home. It failed to balance the competing rights and therefore to determine the proportionality of the interference with Mr Zakharov’s right to respect for his home. That was sufficient to enable the court to conclude that the interference complained of was not ‘necessary in a democratic society’.

The ECtHR reiterated that severe environmental pollution can affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely: López Ostra v Spain (López Ostra v Spain) and Guerra v Italy Application no 14967/89. States have a positive obligation to adopt reasonable and adequate measures to protect individual rights. They have a duty to regulate the authorisation, operation, safety and monitoring of hazardous activities and to guarantee the effective protection of citizens whose lives could be endangered by such activities. The damage to health caused by the plant’s atmospheric emissions had been established by numerous reports from public and private bodies and by medical reports provided by the applicant. The municipal authorities of Copça Mic˘a had not been directly responsible for the harmful emissions. However, the state had a duty to take measures to protect residents’ well-being. The authorities had failed to strike a fair balance between the interest of ensuring the town’s economic well-being (preserving the business of the main employer in the town) and Ms Băcilă’s effective enjoyment of the right to respect for her home and for her private and family life. The court held unanimously that there had been a violation of Article 8.

The ECtHR found breaches of both Articles. The municipal authorities had engaged in unauthorised road construction next to the house without proper project documentation. They also repeatedly failed to enforce the judgments in his favour or enforced them belatedly. The delay in the enforcement of one judgment was a year and three months. It was caused by the combined failure of the domestic authorities to open the enforcement proceedings in a timely manner and of the town administration to take prompt action. The court noted that in Gerasimov v Russia Application no 29920/05, 6 December 2011, it had held that a delay in the enforcement of a judgment of more than six months was unreasonably long and inconsistent with Convention requirements. The court dismissed a claim for pecuniary damage because Mr Bigashev had failed to substantiate it with documents but awarded €1,950 in respect of non-pecuniary damage.

The ECtHR held that there had been a violation of Article 8. The state was required to strike a fair balance between the interests of the applicant and the wider community. It was clear that the noise produced by the trains was in excess of what was permitted by domestic law. It was not until 2010 that mitigation works started. This was an unacceptably long period. While domestic law did provide mechanisms for the regulation of noise, those protections were ineffective in the present case. The court awarded Mr Bor damages of €9,500 and costs of €2,500.

The ECtHR stated that it is well-established that neither Article 8 nor any other provision of the convention guarantees the right to preservation of the natural environment as such. However, an arguable claim under Article 8 may arise where an environmental hazard attains a level of severity resulting in significant impairment of an applicant’s ability to enjoy his or her home, private or family life. The ECtHR continued:

The ECtHR held that: (1) ‘in order to raise an issue under Article 8 the interference must directly affect the applicant’s home, family or private life’ [para 68]; (2) ‘the adverse effects of environmental pollution must attain a certain minimum level if they are to fall within the scope of Article 8’ [para 69] and; (3) proof of that minimum level of interference may

The ECtHR set out the following statement of principle [para 53]:

After referring to López Ostra v Spain (López Ostra v Spain) and Dubetska v Ukraine (Dubetska v Ukraine), paras 105–108, the court reiterated that, where a case concerns an environmental hazard, an arguable claim under Article 8 may arise only where the hazard attains a level of severity resulting in significant impairment of the ability to enjoy a home, private or family life. The assessment of that minimum level is relative and depends on all the circumstances of the case, such as the intensity and duration of the nuisance and its physical or mental effects on the individual’s health or quality of life. In this case, although not all of the allegations were proved, the court considered that the cumulative effect of noise, vibration and air and soil pollution generated by the motorway significantly deterred Ms Grimkovskaya from enjoying her rights guaranteed by Article 8. It emphasised that states enjoy a considerable margin of appreciation in the complex sphere of environmental policy-making. Article 8 cannot be construed as requiring them to ensure that every individual enjoys housing that meets particular environmental standards. However, in this case there was a breach of Article 8. The court noted the government’s failure to show that there had been an adequate environmental feasibility study or that Ms Grimkovskaya had a meaningful opportunity to contribute to the decision-making processes. The court could not conclude that a fair balance was struck between her interests and those of the community. Ruling on an equitable basis, it awarded €10,000 in respect of non-pecuniary damage and dismissed the remainder of her claim as unsubstantiated.

The ECtHR found that there was no violation of the ECHR. The planning and hazardous substances authorities and the domestic courts had been satisfied with the advice provided by the relevant authorities. It did not appear that there had been any manifest error of appreciation by the national authorities in striking a fair balance between the competing interests in the case. The state had fulfilled its obligation to secure the applicants’ right to respect for their private lives and homes.

The Grand Chamber found that, while the disturbance of night flights adversely affected the quality of the applicant’s private life and so engaged Article 8, the quota scheme did not amount to a violation of Article 8. While the noise disturbance had been caused by the activities of private operators the state had a positive obligation to regulate private industry to ensure proper respect for their citizens’ Article 8 rights.

There was no doubt that the quota scheme was in accordance with the law and in pursuance of a legitimate aim. The question for the court was therefore whether it was necessary in a democratic society, ie whether it struck a fair balance between the competing interests of the individuals affected and the community as a whole. As the question concerned economic and social policy, and did not impose criminal sanctions, the state had a wide margin of appreciation. In this case, the balance struck by the UK Government was within its margin of appreciation. The policy was being kept under review and the UK Government had been entitled to rely on the statistical evidence which showed that the great majority of people were unaffected. Moreover, there was further evidence that those who were affected could easily move to another area away from Heathrow flight path (as one of the applicants had in fact done) because house prices had remained unaffected. In contrast, the UK Government had been entitled to place greater weight on the likely damage to the UK economy, and how that would affect the community as a whole, that would occur if night flights were banned from departing or arriving at Heathrow. 

The Court noted that Article 8 ECHR is not violated every time environmental pollution occurs. There is no explicit right in the convention to a clean and quiet environment, but where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Article 8. The adverse effects of any environmental pollution must attain a certain minimum level if they are to fall within the scope of Article 8. The assessment of that minimum is relative and depends on all the circumstances of the case, such as the intensity and duration of the nuisance, and its physical or psychological effects. There would be no arguable claim under Article 8 if the detriment complained of was negligible in comparison to the environmental hazards inherent to life in every modern city. Conversely, 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. Taking into consideration the evidentiary difficulties involved, the ECtHR will have regard primarily, although not exclusively, to the findings of the domestic courts and other competent authorities in establishing the factual circumstances of the case. However, the court cannot rely blindly on the decisions of the domestic authorities, especially if they are obviously inconsistent or contradict each other. In such situations, it has to assess the evidence in its entirety. The court further noted that Article 8 does not merely compel states to abstain from arbitrary interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in the effective respect for private or family life. Regard must be had to the fair balance that has to be struck between the competing interests of individuals and the community as a whole. States enjoy a certain margin of appreciation in determining the steps to be taken to ensure compliance with the convention. In this case, the period of slightly less than a year and nine months during which the applicants were exposed to harmful emissions from the plant was sufficient to trigger the application of Article 8. The ECtHR found that there had been an interference with their rights that reached a sufficient level of severity to bring it within the scope of Article 8. The plant’s dangerous activities before and after its privatisation and the failure to address the resultant air pollution negatively affected the applicants’ rights under Article 8.

The court stated:

The ECtHR decided that the Spanish state did not succeed in striking a fair balance between the interest of the town’s economic well-being – that of having a waste-treatment plant – and the applicant’s 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:

The ECtHR dismissed their claim that there had been breaches of Articles 6 and 8. Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it may involve authorities adopting measures designed to secure respect for private life and home, even in the sphere of the relations of individuals between themselves. 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. Although Article 8 contains no explicit procedural requirements, the decision-making process must be fair and must afford due respect to the interests safeguarded to the individual by Article 8. It is therefore necessary to consider all the procedural aspects, including the type of policy or decision involved, the extent to which the views of individuals were taken into account throughout the decision-making process, and the procedural safeguards available. Individuals concerned must also be able to appeal to the courts against any decision, act or omission where they consider that their interests or their comments have not been given sufficient weight in the decision-making process.

In cases involving environmental issues, the state must be allowed a wide margin of appreciation. The ECtHR noted that Mr and Ms Maempel knew about the firework displays when they acquired the property. The damage caused was minor and remediable, with no real risk of lasting harm. The court did not find that the authorities had overstepped their margin of appreciation by failing to strike a fair balance between the rights of the individuals affected to respect for their private life and home, the conflicting interests of others, and of the community as a whole. Nor did it find that there had been fundamental procedural flaws which impinged on their Article 8 rights.

The court held that although there is no explicit ECHR right to a clean or quiet environment, if an individual is directly and seriously affected by noise or other pollution, the state may be obliged to adopt measures designed to regulate the behaviour of private parties in order to prevent a violation. In this case, the noise levels were such that the state had failed to discharge its positive obligation to guarantee Mrs Oluić’s right to respect for her home and her private life (Moreno Gómez v Spain Application no 4143/02; (2005) 41 EHRR 40). The ECtHR awarded her €15,000 in damages, plus costs.

The ECtHR found a violation of Mr Surugiu’s 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 Surugiu’s right to peaceful enjoyment of his home. He was awarded €4,000 in compensation.

The ECtHR (First Section), sitting as a chamber, considered whether or not the Croatian courts’ decisions to terminate Mrs Blecic’s specially protected tenancy amounted to a violation of Article 8. It was satisfied that she did not intend to abandon the flat, and 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

The ECtHR held that:

The ECtHR found that there was a breach of Article 8. It stated that:

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 judgment 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 anti-social 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 €14,000 and costs.

The ECtHR found that there was a breach of Article 8. The obligation to vacate the flat was an interference with her right to respect for her home. The national courts’ decisions were in accordance with domestic law and the interference in question pursued the legitimate aim of protecting the rights of the state as the owner of the flat. The central question was whether or not the interference was proportionate to the aim pursued and thus ‘necessary in a democratic society’. This raised a question of procedure as well as one of substance. Following Connors v UK (Connors v UK) and McCann v UK (McCann v UK), the court continued:

The ECtHR dismissed her claim under Article 1 of Protocol No 1. At no time did she hold title to the flat. Nor did she submit any evidence suggesting that the authorities had acknowledged that she had a proprietary interest in the flat. The fact that she chose to pay for the flat prior to obtaining the title to it and had been allowed by the seller of the flat to move in was insufficient for the court to conclude that the flat constituted her existing possession. The court discerned nothing in the materials before it to establish that she could legitimately expect her rights in respect of the flat to be recognised by the domestic authorities. However, the court found a breach of Article 8. The margin of appreciation in housing matters is narrower when it comes to the rights guaranteed by Article 8 compared to those in Article 1 of Protocol No 1 (Gladysheva v Russia (Gladysheva v Russia)). The domestic courts made an order for Ms Ganeyeva’s eviction ‘automatically’ once they refused to recognise her title to the flat. They made no further analysis as to the proportionality of the measure:

The claim was declared inadmissible. Although the concept of ‘home’ within the meaning of Article 8 is not limited to premises which are lawfully occupied or which have been lawfully established,

On considering admissibility, the ECtHR observed that Ms Horie was:

The ECtHR noted that both applicants had lived in the house for a number of years. It was therefore ‘home’ for both of them. The demolition order amounted to an interference with their right to respect for that home. The interference was lawful. The demolition order had a clear legal basis. It had been upheld, following fully adversarial proceedings, by two levels of court and there was nothing to suggest that it was not otherwise than ‘in accordance with the law’. The court was satisfied that the demolition would pursue a legitimate aim. Even if its only purpose was to ensure the effective implementation of the regulatory requirement that no buildings can be constructed without permit, it could be regarded as seeking to re-establish the rule of law. The salient issue was whether the demolition was ‘necessary in a democratic society’. On this point, the case bore considerable resemblance to cases concerning the eviction of tenants from public housing. The court reiterated that the assessment of the necessity of the interference in cases concerning the loss of one’s home for the promotion of a public interest involves not only issues of substance but also a question of procedure: whether the decision-making process was such as to afford due respect to the interests protected under Article 8. Any person risking the loss of their home, whether or not belonging to a vulnerable group, should in principle be able to have the proportionality of the measure determined by an independent tribunal.

The complaint was found to be inadmissible as manifestly ill-founded. Insofar as the ECtHR has found violations of Article 8 in housing cases, it has principally done so in cases where there has been a lack of procedural safeguards. Although the domestic courts in this case could not consider proportionality when deciding whether or not to make a possession order, the proportionality of dispossessing Mrs JL of the property she occupied and of evicting her from her home was, exceptionally, subsequently scrutinised by the domestic courts at the enforcement stage of the proceedings taken against her. In contrast to Bjedov v Croatia (Bjedov v Croatia), it could not be said that the enforcement proceedings were not properly equipped with the procedural tools and safeguards to conduct the proportionality review at the enforcement stage. The full and careful assessment of proportionality carried out by the British courts at two levels of jurisdiction was adequate for the purposes of ensuring the protection afforded by Article 8 and it could not be said that their assessment of the proportionality of JL’s eviction was wrong.

The ECtHR stated as follows:

The ECtHR held that there had been a serious breach of Ms Khalikova’s right to respect for her home (Article 8), It said:

The flats were the applicant’s homes for the purposes of Article 8 as the applicants had sufficient and continuous links with the flats. The eviction orders amounted to an interference with their right to respect for their home.  The national courts’ decisions were in accordance with domestic law and the interference therefore pursued the legitimate aim of the protection of the rights of the owner of the flats.  The central question was, therefore, whether the interference was proportionate and ‘necessary in a democratic society’. Although Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8.  Any person at risk of an interference with his or her right to a home should in principle be able to have the proportionality and reasonableness of the measure determined by an independent tribunal in the light of the relevant principles under Article 8, notwithstanding that, under domestic law, he or she has no right to occupy the property concerned.  Such an issue does not arise automatically in every case concerning an eviction dispute. If an applicant wishes to mount an Article 8 defence to prevent eviction, it is for him or her to do so and for a court to uphold or dismiss the claim.  In this case, the national courts had confined themselves to finding that occupation by the applicants was without legal basis, and made no further analysis as to the proportionality of the measure to be applied against them.  By failing to examine these arguments, the national courts did not afford the applicants adequate procedural safeguards and the decision-making process was not fair and did not afford due respect to the interests safeguarded to the applicants.   There was, therefore, a violation of Article 8.  The court awarded non-pecuniary damage and noted that under the Croatian Civil Procedure Act an applicant may file a petition for reopening of civil proceedings in respect of which the ECtHR has found a violation of the ECHR. 

The ECtHR found that there had been a violation of Article 8. It noted that whether or not 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 McCann’s 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. Second, the interference also pursued the aim of ensuring that the statutory scheme for housing provision was applied properly. 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 McCann’s case was whether or not 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 UK (Connors v UK), paras 81–84 was to be confined only to cases involving the eviction of Gypsies or where applicants sought to challenge the law itself rather than its application in their particular case. It stated:

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 damages of €2,000.

The Cour de Cassation held that the clause was ineffective because it breached Article 8(1) in that it prevented her from living with her close relatives.

Following previous authority, the ECtHR noted that:

The court found that there had been a breach of Article 8. The Panyushkiny lived in the room for fourteen years and it was their ‘home’ for the purposes of Article 8. The eviction order amounted to an interference with their right to respect for their home. That interference had a legal basis in domestic law and pursued the legitimate aim of protecting the rights of forced migrants in need of housing. The central question was therefore whether the interference was proportionate to the aim pursued and thus ‘necessary in a democratic society’. After referring to Connors v United Kingdom (Connors v UK) and McCann v United Kingdom (McCann v UK), the Court held that the reasoning in Connors was not confined to cases involving the eviction of Roma or to cases where the applicant had sought to challenge the law itself. In the present case, the Panyushkiny raised the issue of their right to respect for their home before the domestic courts and presented arguments linked to the proportionality of their eviction. However, the domestic courts did not weigh those interests against their right to respect for their home. In the light of the loss of forced migrant status, the courts:

The ECtHR held that there was a breach of Article 8. It found that:

The Fourth Section of the ECtHR accepted that the eviction interfered with Mr Pinnock and Ms Walker’s right to respect for their home, but was satisfied that it was open to them to challenge the order by invoking their rights under Article 8. In considering proportionality, the court held that while the removal of a source of nuisance to neighbours was undoubtedly one of the aims pursued by the possession order, another important aim was to protect the rights and freedoms of others, namely, the local authority’s right to manage its housing stock and to apply properly the statutory scheme for housing provision for the protection of other intended beneficiaries of the complex arrangements put in place under domestic legislation (para 30). The Supreme Court had regard to all relevant factors when making the possession order and weighed Mr Pinnock’s interests in remaining in the property against the interests of the local authority in seeking his eviction. It provided detailed reasons which were relevant and sufficient for its conclusion that the eviction would not be disproportionate. In so far as Mr Pinnock and Ms Walker complained about the failure of the Supreme Court to resolve disputed matters of fact, it was evident from the court’s judgment that, even if the matters had been resolved in Mr Pinnock’s favour, this would not have affected the outcome of the case.

The ECtHR concluded that the application was inadmissible as it was manifestly ill-founded. The Supreme Court had not exceeded its margin of appreciation in finding that the eviction was proportionate. The facts of the case disclosed no appearance of a violation of Article 8.

The ECtHR 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 €3,000.

The ECtHR stated

The ECtHR found that there was no breach of either Article. Even though Mr and Ms Vrzić had not yet been evicted, an eviction order had been issued and might be enforced at any time. That amounted to an interference with the right to respect for their home. In considering whether the interference was prescribed by law and pursued a legitimate aim, it was primarily for the national authorities, notably the courts, to interpret and apply the domestic law, since national authorities are, in the nature of things, particularly qualified to settle such issues. The national courts’ decisions ordering their eviction were in accordance with domestic law. The interference pursued the legitimate aim of protecting the buyer’s lawful title to the house. The central issue was whether the interference was ‘necessary in a democratic society’. The court referred to McCann v United Kingdom Application no 19009/04 McCann v UK, Ćosić v Croatia Application no 28261/06, 15 January 2009 Ćosić v Croatia, Paulić v Croatia Application no 3572/06, 22 October 2009 Paulić v Croatia, Orlić v Croatia Application no 48833/07, 21 June 2011 Orlić v Croatia, Bjedov v Croatia Application no 42150/09, 29 May 2012 Bjedov v Croatia; and Brežec v Croatia Application no 7177/10, 18 July 2013 Brežec v Croatia. However, the situation in the present case was different inasmuch as the other parties in the enforcement proceedings were either a private person, namely MG, or private enterprises, namely a bank and a company. The court continued:

With regards Article 1 of Protocol No 1, even though the interference to Mr and Ms Vrzić’s possessions did not involve expropriation by the State, they were deprived of their property. That interference was prescribed by law and pursued a legitimate aim, namely, protecting the creditors and the purchaser of the house. The interference was proportionate to the legitimate aim pursued. The price received by Mr and Ms Vrzić was reasonably related to the value of the property. They were not made to bear an individual or excessive burden. The court also rejected the contention that the enforcement measures were not accompanied by procedural safeguards, but it did note that:

In subsequent proceedings, the Bulgarian courts found that the applicants had not shown a valid legal ground for occupying the land. This was sufficient to establish that the removal order was lawful. The courts ignored, as irrelevant under domestic law, the applicants’ argument that they should not be removed because they had lived in the area for decades with the authorities’ acquiescence, and their arguments based on the principle of proportionality. The applicants complained to the ECtHR, alleging violations of Articles 3 and 8 and Article 1 of Protocol No 1, taken alone and in conjunction with Articles 13 and 14.

The ECtHR found that the applicants’ houses were their ‘homes’ within the meaning of Article 8. This classification was a matter of fact, independent of the question of the lawfulness of the occupation under domestic law (McCann v UK (McCann v UK)). It followed that their complaints concerned their right under Article 8 to respect for their homes. There was no doubt that the removal order, if enforced, would result in the applicants losing their homes and that, therefore, there would be an interference with their right to respect for their homes (Cósić v Croatia (Ćosić v Croatia)). In addition, as ‘the case concerns the expulsion of the applicants as part of a community of several hundred persons and that this measure could have repercussions on the applicants’ lifestyle and social and family ties, it may be considered that the interference would affect not only their ‘homes’, but also their ‘private and family life’ (see, similarly, Chapman v UK (Chapman v UK)) (para 105).

The court was satisfied that the impugned removal order had a valid legal basis in domestic law and it was legitimate for the authorities to seek to regain possession of land from persons who did not have a right to occupy it. ‘Improvement of the urban environment by removing unsightly and substandard buildings and replacing them with modern dwellings meeting the relevant architectural and technical requirements [was] a legitimate aim in the interests of economic well-being and the protection of the health and the rights of others … ’ (para 113). The salient issue concerned ‘necessity in a democratic society’ (para 116).

The court reiterated that:

The First Section of the ECtHR decided to examine the complaint ‘first and foremost’ under Article 8. It stated that whether or not a particular habitation constitutes a ‘home’ which attracts the protection of Article 8 depends on the factual circumstances. It could see no reason to doubt that the apartment subject to the judicial sale was at the material time Ms Zehentner’s ‘home’. The judicial sale and the eviction interfered with her right to respect for her home. The interference was in keeping with a law which served the legitimate aim of protecting the rights and freedoms of others, namely creditors, by enabling them to obtain payment of their claims. An interference is ‘necessary in a democratic society’ for a legitimate aim if it answers a ‘pressing social need’ and, in particular, if it is proportionate to the legitimate aim pursued. A margin of appreciation must be left to the national authorities, which are in principle better placed than an international court to evaluate local needs and conditions. 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. While it may be in the interest of efficient enforcement proceedings that the judicial sale of the apartment was authorised on the basis of a payment order which had been issued in summary proceedings, the court doubted whether the debtor’s interests were adequately taken into account where such a payment order for a comparatively minor sum could be the basis for the judicial sale of a debtor’s ‘home’. The court noted that by the time the judicial sale of her apartment took place, Ms Zehentner had lacked legal capacity for years. As a result, she had not been in a position either to object to the payment order or to make use of the remedies available to debtors under the Enforcement Act. In this case, neither the protection of the bona fide purchaser nor the general interest of preserving legal certainty were sufficient to outweigh the consideration that Ms Zehentner, who lacked legal capacity, was dispossessed of her home without being able to participate effectively in the proceedings and without having any possibility to have the proportionality of the measure determined by the courts. It followed that, because of the lack of procedural safeguards, there was a violation of Article 8. The ECtHR also found a breach of Article 1 of Protocol No 1.

The court held that Ms Zrilić had sufficient and continuing links with the house for it to be considered her ‘home’ for the purposes of Article 8. The order to vacate it amounted to an interference with the right to respect for her home. The national courts’ decisions had a basis in the relevant domestic law and the interference in question pursued the legitimate aim of the ‘protection of the rights of others’. The central question was therefore whether the interference was ‘necessary in a democratic society’. The court was satisfied that the decision-making process leading to measures of interference with Ms Zrilić’s rights was fair and such as to afford due respect to the interests safeguarded by Article 8. There was no violation of Article 8.

The ECtHR found that there had been no violation. There is no right under Article 8 to be provided with housing but where a state decides to provide social benefits, it must do so in a way that is compliant with Article 14. As the legislation affected the home and family life of Ms Bah and her son, the facts of the case fell within the ambit of Article 8. However, the court decided that the classes of persons eligible for social housing set out in Housing Act 1996 s185 and the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI No 1294 were not arbitrary or discriminatory. There was nothing arbitrary in the denial of priority need to Ms Bah when it would be based solely on the presence in her household of her son, whose leave to enter the UK was granted only a few months earlier and was expressly conditional on his having no recourse to public funds. By bringing her son into the UK in full awareness of the condition attached to his leave to enter, she accepted that condition and effectively agreed not to have recourse to public funds in order to support her son. It was justifiable to differentiate between those who rely for priority need status on a person who is in the UK on the condition that he or she has no recourse to public funds, and those who do not. The legislation pursued a legitimate aim, namely allocating a scarce resource fairly between different categories of claimants and such justification was not manifestly without reasonable foundation.

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:

The ECtHR found that there was no violation of Article 1 of Protocol No 1. From the outset, the civil proceedings resulting in the forfeiture of Mr Malayev’s title were instituted by a private individual, VF, who sought to restore his own right to reside in the flat which had originally been the property of the City of Moscow. The City of Moscow, when invited by the court to take part in the proceedings as a third party, did not file a separate claim in respect of the flat and chose not to attend the proceedings. The court concluded that the case concerned, in substance, a dispute between private parties. Such disputes do not as such engage the responsibility of the state under Article 1 of Protocol No 1. Accordingly, the court’s task was to assess whether the domestic courts’ adjudication of the dispute between VF and Mr Malayev was given in accordance with domestic law and to ascertain that their relevant decisions were not arbitrary or manifestly unreasonable. There was no reason to conclude that the Russian authorities had applied the legal provisions manifestly erroneously or so as to reach arbitrary conclusions. Although Mr Malayev argued that the national courts had failed to recognise that he had acquired the flat in good faith, he had not raised that in the domestic proceedings. Accordingly, the national courts’ decisions did not constitute interference with his right to the peaceful enjoyment of his possessions.

There was however a violation of Article 8. It was not disputed that the flat was Mr Malayev and Mrs Malayeva’s ‘home’ or that their eviction amounted to an interference with their right to respect for their home. However, the lawfulness of the eviction was not in dispute and was an automatic consequence of the termination of Mr Malayev’s title. It catered for the needs of VF, a vulnerable person who had originally resided in the flat under the social housing agreement. When considering whether the interference was ‘necessary in a democratic society’, the ECtHR noted that the margin of appreciation in housing matters is narrower when it comes to the rights guaranteed by Article 8 than those in Article 1 of Protocol No 1. The eviction order was made automatically by the domestic courts after they had terminated Malayev’s title to the flat. They made no further analysis as to the proportionality of the measure. Although the national courts took into account the interests of VF, they did not weigh those interests against Mr Malayev and Mrs Malayeva’s right to respect for their home. Once the courts had invalidated Mr Malayev’s title to the flat, they gave that aspect paramount importance, without taking into account their housing needs. The national judicial authorities thus failed to provide the applicants with a proper review of the proportionality of their eviction. The court found no causal link between the violation and the pecuniary damage claimed and so rejected that claim. However, it awarded €7,500 in respect of non-pecuniary damage.

The ECtHR dismissed his complaint, but stated:

Lord Hoffmann stated that there was no doubt that the Housing Act 1985 created a duty which was enforceable by judicial review, but whether it gave rise to a cause of action sounding in damages was dependent on whether the Act showed a legislative intention to create such a remedy. He accepted the council’s submissions that there were contra-indications, namely that (a) the Act was a scheme of social welfare, intended to confer benefits at the public expense on grounds of public policy and (b) the existence of the duty was dependent on a good deal of judgment on the part of the housing authority, which had a wide discretion in deciding how to provide accommodation and what kind of accommodation it would provide. The House of Lords held that it was ‘unlikely that Parliament intended errors of judgment to give rise to an obligation to make financial reparation’. The suggestion advanced by Mr O’Rourke that there was a difference between the obligation to provide temporary accommodation and the full housing duty under Housing Act 1985 Part 3 (now Housing Act 1996 Part 7) was rejected. The breach of statutory duty of which the plaintiff complained did not give rise to any cause of action in private law.

Mr O’Rourke complained to the ECtHR. He contended that the failure to re-accommodate him under Housing Act 1985 s63 (now Housing Act 1996 s188), after he had been evicted (for alleged misconduct) from interim accommodation in a hotel constituted interference with his convention rights under Articles 3 and 8.

The ECtHR ruled his claim inadmissible (‘manifestly ill-founded’). As to Article 3 (inhuman or degrading treatment) it held that: (1) the applicant’s suffering between his eviction and his rehousing had not attained the requis-ite level of severity to engage Article 3; and (2) if it had, the claimant was largely responsible for that suffering as he had failed to follow advice to go to a night shelter and had refused two further offers of temporary accommodation. As to Article 8 (right to respect for a home), it held that: (1) if the hotel room had been his home, he had been lawfully evicted from it in accordance with the hotel proprietor’s right to request guests to leave for the protection of staff and other guests; and (2) to the extent that the state had been under any positive duty to re-accommodate following his eviction (see Mazari v Italy (Mazari v Italy)) that duty had been met by the advice given and the offers of alternative temporary accommodation.

In 2011, the Court received friendly settlement declarations signed by the parties under which X, Y and Z agreed to waive any further claims against the UK in return for an undertaking by the Government to pay X and Y each €25,000, and Z €7,000 plus costs.

The ECtHR took note of the friendly settlement. It was satisfied that it was based on respect for human rights and found no reason to justify a continued examination of the application. Accordingly, it stuck the case out of the list.

The court reiterated that:

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 (discrimination) applied. It stated that, for the purposes of Article 14, a difference in treatment is discriminatory if it has no objective and reasonable justification, ie 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 ECtHR decided that no award of compensation for pecuniary damage could be made, but awarded costs against the Austrian government.

With regard to Article 6, the main set of proceedings was conducted at three levels of jurisdiction and lasted just over eight years. The length of the proceedings, in particular before the first instance court, was excessive and failed to meet the reasonable time requirement. There was therefore a breach of Article 6. The ECtHR considered that Mr Korelc must have sustained non-pecuniary damage. Ruling on an equitable basis, it awarded him €3,000.

The ECtHR stated that under Article 14:

In finding such a breach, the ECtHR stated that (1) Ms Akimova’s claims to the apartment were sufficiently established to constitute a ‘possession’ falling within the ambit of Article 1 and (2), as the domestic judgment did not rely on any domestic legal provision which would serve as a basis for postponing execution, the interference complained of was in breach of Azerbaijani law and incompatible with her right to peaceful enjoyment of her possession.

The government did not challenge the fact that the flat constituted her ‘possession’. It conceded that the reversion of the flat to the state had amounted to an interference with her rights under Article 1 of Protocol No 1. As to the legitimate aim of the impugned measure, the court stated that it is for the national authorities to make the initial assessment as to the existence of a matter of public concern warranting measures of deprivation of property. They ‘enjoy a certain margin of appreciation’. Turning to the question of whether there was a fair balance, the court considered that the state authorities had failed to ensure a proper expert review as regards the lawfulness of the real-property transactions. The ECtHR reiterated that mistakes or errors on the part of state authorities should serve to benefit the persons affected. In other words, the consequences of any mistake made by a state authority must be borne by the state and errors must not be remedied at the expense of the individual concerned (Stolyarova v Russia, Application no 15711/13, 29 January 2015). The court concluded that the forfeiture of the title to the flat and its transfer to the City of Moscow placed a disproportionate and excessive burden on Ms Alentseva (Gladysheva v Russia (Gladysheva v Russia)). There was therefore a violation of Article 1 of Protocol No 1. The court considered that the most appropriate form of redress would be to restore Ms Alentseva’s title to the flat and to reverse the order for her eviction. The court awarded €5,000 in respect of non-pecuniary damage.

The ECtHR held that in the circumstances the continued application of the security and rent control provisions amounted to a degree of control over the applicant’s property such as to amount to an infringement of his human rights under Article 1 of Protocol 1.

The ECtHR ruled the application inadmissible. The applicant had not shown that Article 8 was in play by evidence of any homelessness or that his current housing was in a deplorable state. Although the grant of a tenancy might be a ‘possession’ for the purpose of Article 1 of Protocol No 1, the statutory right to priority in allocation of apartments was not a possession protected by this Article.

The ECtHR found a breach of Article 1 of Protocol No 1. A ‘claim’ can constitute a ‘possession’ within the meaning of Article 1 of Protocol No 1 if it is sufficiently established to be enforceable (para 50). That was undoubtedly so in this case, because both the administrative decision and the court judgment ordered the repairs to the roof to be carried out. The impossibility of having the judgment enforced for a substantial period of time, given that two years of inactivity were not attributable to Ms Bjelajac, constituted an interference with her right to peaceful enjoyment of her possessions. The government was unable to provide sufficient justification for the delay. In its absence, it was unnecessary to consider whether a fair balance had been struck between the rights of Ms Bjelajac and those of the community. (There was no claim for compensation.)

The ECtHR found that Mr Brezovec’s claim for the purchase of the flat was sufficiently established to qualify as an ‘asset’ attracting the protection of Article 1 of Protocol No 1 (para 45). The refusal of the domestic courts to allow that claim undoubtedly constituted an interference with his right. The decisions of the domestic courts had a legal basis in domestic law as their refusal to grant the applicant’s claim for purchase of the flat was based on section 2 of the Act on the Lease of Flats on the Liberated Territory 1995. However, that decision was not consistent with the court’s previous case-law. Contracting states have an obligation to organise their legal system so as to avoid the adoption of discordant judgments and conflicting decisions in similar cases. Failure to do so may, in the absence of a mechanism which ensures consistency, breach the principle of legal certainty. Where no reasonable explanation is given for the divergence, such interferences cannot be considered lawful for the purposes of Article 1 of Protocol No 1. There was, accordingly, a violation of Article 1 of Protocol No 1. In view of this finding, it was unnecessary to examine whether a fair balance had been struck between the demands of the general interest of the community and the requirements of the protection of Mr Brezovec’s fundamental rights. The ECtHR decided that the most appropriate form of redress was to reopen the domestic proceedings. There was no call to award the applicant any sum on account of just satisfaction.

The ECtHR found that there had been a breach of Article 1 of Protocol No 1. A fair balance must be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. Compensation terms under the relevant legislation are material to the assessment of whether the contested measure respects the requisite fair balance and, notably, whether it does not impose a disproportionate burden on the applicant. By failing to establish all the relevant factors for establishing the compensation for the expropriated property, and by failing to grant indemnity for the decrease in the value of the remaining estate, the national authorities failed to strike a fair balance between the interests involved and failed to make efforts to ensure adequate protection of Mr and Mrs Bistrović’s property rights.

The ECtHR dismissed his claims. Specially Protected Tenancies were abolished in 1996, a year before the ECHR entered into force in respect of Croatia. Therefore, Mr Budimir did not have a sufficient proprietary interest in respect of the flat to constitute a ‘possession’ within the meaning of Article 1 of Protocol No 1.

The ECtHR found a breach of Article 1 of Protocol No 1. It noted that in Bittó v Slovakia Application no 30255/09; 28 January 2014, the court had found that (i) the rent control scheme amounted to an interference with the applicants’ property; (ii) that interference had constituted a means of state control of the use of their property to be examined under the second paragraph of Article 1 of Protocol No 1; (iii) it had been ‘lawful’ within the meaning of that Article; (iv) it had pursued a legitimate social policy aim; and (v) it had been ‘in accordance with the general interest’ as required by the second paragraph of that Article; but (vi) the implementation of the rent control scheme failed to strike the requisite fair balance between the general interests of the community and the protection of the applicants’ right of property. As a result, there had been a violation of their rights under Article 1 of Protocol No 1. The Court had no reason to reach different conclusions on these points in the present case. It awarded damages.

The ECtHR held that the tenements and field were possessions within the meaning of Article 1, even though Mr Edwards was only a trustee. He had been acting as the owner of the premises without disturbance and receiving rent for more than 30 years. It also held that, by requisitioning and assigning the use of his property to others, Mr Edwards had been prevented from enjoying his property. His right to receive a market rent and to terminate leases had been substantially affected. However, he never lost his right to sell his property, nor had the authorities applied any measures resulting in the transfer of his title. The measures taken by the authorities were aimed at subjecting his tenement and field to a continuing tenancy and not at taking it away from him permanently. Therefore, the interference complained of could not be considered a formal or even de facto expropriation, but constituted a means of state control of the use of property. It followed that the case should be examined under the second paragraph of Article 1. It was not disputed that the requisition of the tenements was carried out in accordance with the provisions of the Housing Act. The measure was, therefore, ‘lawful’ within the meaning of Article 1. The court accepted the government’s argument that the requisition and rent control were aimed at ensuring the just distribution and use of housing resources in a country where land available for construction could not meet the demand. These measures, implemented with a view to securing the social protection of tenants, were also aimed at preventing homelessness and protecting the dignity of impoverished tenants. The legislation therefore had a legitimate aim in the general interest, as required by the second paragraph of Article 1. However, having regard to the extremely low amount of rent, to the fact that the applicant’s premises had been requisitioned for more than 30 years, and to other restrictions of landlords’ rights, the court found that a disproportionate and excessive burden had been imposed on Mr Edwards. He had been requested to bear most of the social and financial costs of supplying housing accommodation to the family which was renting one of the tenements. It followed that the Maltese state had failed to strike the requisite fair balance between the general interests of the community and the protection of the applicant’s right of property. There was, accordingly, a violation of Article 1 of Protocol No 1. The court reserved the question of compensation for pecuniary damage and/or non-pecuniary damage because it was not ready for decision.

By a majority, the court rejected their complaint. Although the law interfered with Mr and Mrs Ferreira’s rights, the question was whether or not the interference was justified, having regard to the fact that the Article ‘shall not … in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest’ (para 18). This type of legislation pursues a legitimate goal of social protection for tenants and tends to promote the economic well-being of the country (Velosa Barretto v Portugal (Velosa Barretto v Portugal)). This is an area in which states have a wide margin of appreciation. After referring to a number of cases in which the ECtHR had found that limitations on the rights of property owners in member states had been justified and proportionate, the court indicated that states may afford broader protection to the interests of tenants with longer and more secure contracts. The court could not call into question political choices aimed at providing increased protection to certain categories of tenants. It was a measure which served the general interest and did not appear manifestly unreasonable. Although the Portuguese courts had not been able to weigh up the respective interests of the property owners and the tenant, the absolute character of a law was not, in itself, incompatible with the convention (Evans v UK [GC] Application no 6339/05, para 89; CEDH 2007-IV and Salabiaku v France Application no 10519/83, para 28). Such absolute rules promoted juridicial certainty (‘la sécurité juridique’) and avoided a lack of clarity (‘les incohérences’) in a sensitive area (para 33). The court noted that such absolute rules are not rare (see, for example, James v UK (James v UK)). Finally, the ECtHR gave decisive weight to the fact that the restriction in question was already in force when Mr and Mrs Ferreira entered into the lease. They had therefore known already at that time that, under Portuguese law, they could request termination of the lease if they or their children needed housing, but that if the lease were to extend beyond a period of 20 years, they would be debarred from so doing. The restriction on Mr and Mrs Ferreira’s rights could not be deemed to be disproportionate or unjustified. It struck a fair balance between the interests of the community and their rights.

The ECtHR found that there was a breach of Article 1 of Protocol No 1. It held that the rent and security of tenure provisions of the 1979 Act cast a disproportionate and excessive burden on Mr Gauci. He had no procedural means to get back his flat, the tenancy could run on indefinitely with no certainty that he could ever recover possession, and meanwhile the tenants were only paying an exceptionally low rent. The court awarded over €16,000 compensation for his loss to date and costs.

In relation to Article 1 of Protocol 1, the court stated that the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference that cannot be justified. However, Article 1 of Protocol 1 does not guarantee a right to full compensation in all circumstances, since legitimate ‘public interest’ objectives may call for reimbursement of less than the full market value. The court noted that Ms Gladysheva had been stripped of ownership without compensation, and that she had no prospect of receiving replacement housing from the state. The risk of any mistake made by the state authority must be borne by the state and errors must not be remedied at the expense of the individual concerned. Dispossessing the applicant of her flat placed an excessive individual burden on her and the public interest was not sufficient justification for doing so. There was accordingly a violation of Article 1 of Protocol 1.

In relation to Article 8, the court held that although the possession order had not been enforced, the very making of such an order amounted to an infringement of the Article 8(1) right. The order had been lawfully obtained in pursuit of a legitimate aim (the provision of housing to welfare claimants to whom the flat would be reallocated). The state had a narrower margin of appreciation when seeking to justify interference with Article 8 rights in respect of housing matters. The domestic courts had made no examination of the proportionality of the eviction and had left Article 8 rights wholly out of account when deciding on eviction. The ECtHR made an order that Ms Gladysheva’s title be restored and the eviction be rescinded. It also awarded non-pecuniary damage of €9,000 and costs.

The ECtHR noted that execution of a judgment is one of the aspects of the right to a fair trial. It held that the failure to enforce the judgment could not be justified by relying on lack of funds or other resources and that there had been a breach of article 6. However, the court held that the right to social housing did not constitute a ‘possession’ for the purposes of Article 1 of Protocol No 1. It noted that the judgment provided for Ms Happi’s re-housing, not that she be given ownership of a property.

The Grand Chamber of the ECtHR noted that, although Mrs Hutten-Czapska could not exercise her right of use in terms of physical possession as the house had been occupied by tenants and her rights in respect of letting the flats, including her right to receive rent and to terminate leases, had been subject to a number of statutory limitations, she had never lost her right to sell her property. Nor had the authorities applied any measures resulting in the transfer of her ownership. In the Chamber’s judgment, those issues concerned the degree of the state’s interference, and not its nature. The aim of all the measures taken was to subject the applicant’s house to continued tenancies, and not to take it away from her permanently. They could not be considered a formal or even de facto expropriation but constituted a means of state control of the use of her property. Accordingly, the case should be examined under the second paragraph of Article 1 of Protocol No 1. It is for national authorities to make the initial assessment of the existence of a problem of public concern warranting measures to be applied in the sphere of the exercise of the right of property and, in doing so, they enjoy a wide margin of appreciation. The Grand Chamber accepted that the interference respected the principle of lawfulness. It also agreed that the rent control scheme in Poland originated in the continued shortage of dwellings, the low supply of flats for rent on the lease market and the high costs of acquiring a flat. It was implemented with a view to securing the social protection of tenants and ensuring the gradual transition from state-controlled rent to a fully negotiated contractual rent during the fundamental reform of the country following the collapse of the communist regime. The court accepted that, in the social and economic circumstances of the case, the impugned legislation had a legitimate aim in the general interest, as required by the second paragraph of Article 1. However, after noting that the rent which Mrs Hutten-Czapska received was very low, the court held that the legislation ‘impaired the very essence of her right of property’ and individual landlords had been ‘deprived even of the slightest substance of their property rights’. Their ‘right to derive profit from property, … an important element of the right of property ha[d] been destroyed and … the[ir] right to dispose of one’s property ha[d] been stripped of its substance.’ The legislation ‘unduly restricted [Mrs Hutten-Czapaska’s] property rights and placed a disproportionate burden on her, which [could] not be justified in terms of the legitimate aim pursued by the authorities in implementing the relevant remedial housing legislation.’ The ECtHR accordingly found that there had been a violation of Article 1 of Protocol No 1. The court reserved the question of compensation for pecuniary damage because it was not ready for decision, but made an award for non-pecuniary damage of €30,000.

A Chamber of the Fourth Section found by a narrow majority that there was a breach, but the Grand Chamber, also by a majority, found that there was no breach. The Grand Chamber noted that Article 1 of Protocol No 1 ‘protects ‘possessions’, which can be either ‘existing possessions’ or assets, including claims, in respect of which the applicant can argue that he or she has at least a ‘legitimate expectation’ of obtaining effective enjoyment of a property right. It does not, however, guarantee the right to acquire property.’

It stated that Article 1:

Turning to the lack of compensation, the court stated that case-law on compensation for deprivation of possessions was not directly applicable to a control of use case. It accepted the government’s contention that a requirement of compensation for the situation brought about by a party failing to observe a limitation period would sit uneasily alongside the very concept of limitation periods.

The court concluded that the fair balance required by Article 1 was not upset in the present case.

The ECtHR rejected the application. The statutory scheme amounted to a deprivation of the applicant’s possessions. Such deprivation would, however, be lawful if the member state could demonstrate that it was in the public interest and did not impose a disproportionate burden on landowners subject to the deprivation. Member states had a very wide margin of appreciation in respect of what amounted to a public interest and the level of compensation to be paid. The public interest could include circumstances where expropriated land was not being put to public use but to meet a social or economic need. The rectification of ‘an unjust system of housing tenure’ was a legitimate aim of housing policy that the State was entitled to pursue in the public interest. It was also within the State’s margin of appreciation to allow for compensation to be payable at below the market rate as the payment of higher premiums would defeat the purpose of the scheme as it would prevent tenants from being able to obtain the freehold ownership of their homes.

The ECtHR found that there was a violation of Article 1 of Protocol No 1 but decided that the state should be dispensed from liability with regard to legal acts or situations which antedated the ECtHR’s judgment, and so dismissed claims for compensation.

In the ECtHR, it was common ground between the parties that the flat constituted the applicant’s possession and that the revocation of his title to it amounted to an interference with his rights under Article 1 of Protocol No 1. When considering the issue of proportionality, the court noted that the government had failed to give a convincing explanation as to why, contrary to the public interest of catering for the needs of those on the waiting list for social housing, the city authorities chose not to have their title to the flat duly registered and/or to assign the flat to a person in need of social housing back in 2005, when Un’s fraudulent actions had been discovered and the domestic judicial authorities had recognised the city’s title to the flat. Where ‘an issue in the general interest’ is at stake, it is incumbent on the public authorities to act in good time, in an appropriate manner and with utmost consistency. In ‘the circumstances, bringing an action against the applicant, a bona fide purchaser of the flat, some seven years later calls for a justification which has not been furnished’[43]. Mr Medvedev had been deprived of ownership without compensation or provision of replacement housing from the state. There was accordingly a violation of Article 1 of Protocol No 1. The court considered that the question of pecuniary damage was not ready for a decision, but awarded €9,000 in respect of non-pecuniary damage.

The ECtHR found that there was no violation of the Convention.

The ECtHR found that there had indisputably been an interference with Mrs Radanovic’s right to property as her flat was allocated for use to another person and she was unable to use it for a prolonged period of time. It further noted that she was not deprived of her title and so the interference complained of constituted a control of use of property within the meaning of Article 1 of Protocol No 1, para 2. Assuming that the interference complained of was lawful and in the general interest, the court had to consider whether it struck the requisite fair balance between the demands of the general interest of the public and the requirements of the protection of the individual’s fundamental rights, and whether it imposed a disproportionate and excessive burden on the applicant. The court recognised that the Croatian authorities faced an exceptionally difficult task in having to balance the rights of owners against those of temporary occupants in the context of the return of refugees and displaced persons, as this involved dealing with socially sensitive issues. Those authorities had to secure the protection of property and social rights. The court therefore accepted that a wide margin of appreciation should be accorded to the state. However, in this case Mrs Radanovic was forced to bear the burden of providing the temporary occupant with a place to stay for more than six years. This burden should have been borne by the state. Notwithstanding the state’s margin of appreciation, the court considered that the Croatian authorities failed to strike the requisite fair balance between the general interest of the community and the protection of Mrs Radanovic’s right to property. As a result, she had to bear an excessive individual burden. The interference with her right to property could not be considered proportionate to the legitimate aim pursued. There was accordingly a breach of Article 1 of Protocol No 1. The court also concluded that Mrs Radanovic had no effective remedy for the protection of her ECHR right to property and that there had been a breach of Article 13. The court awarded €6,000 on account of the loss of rent and €2,500 in respect of non-pecuniary damage.

The ECtHR held that the temporary laws suspending evictions were not a breach of Article 1 of Protocol No 1. They provided neither for a transfer of property nor a de facto appropriation. They amounted to a control of property, but that was in the general interest. However, the restriction on the owner’s use of the flat resulting from the authorities’ failure to apply the law (ie, to give priority) was a breach of Article 1 of Protocol No 1.

The ECtHR found that there had been a violation of Article 1 of Protocol No 1. It reiterated that Article 1 of Protocol No 1 requires a fair balance to be struck between the demands of the general interest of the community and the requirements of the protection of individuals’ fundamental rights. Such a balance will not be achieved where an individual has to bear a disproportionate and excessive burden. Compensation terms under the relevant legislation are material to the assessment of whether the contested measure respects the requisite fair balance, and notably whether the measure imposes a disproportionate burden on the applicant. The taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference. Where there is ‘an extreme disproportion’ between the value of the expropriated property and the compensation awarded, only very exceptional circumstances can justify such a situation. In this case, the damages awarded by the Supreme Court were about four times lower than the amount he claimed (€14,770). It was not disputed by the parties that the amount claimed by Mr Šidlauskas corresponded to the apartment’s market value at the time when he had submitted that claim, nor was it disputed that €3,504 had not been sufficient for him to acquire a new comparable apartment at the time when that award was made. While the court did not consider that the disproportion between the market value of the apartment at the time when he applicant submitted his claim and the compensation received by him was ‘extreme’, the domestic courts needed to provide adequate reasons to justify that difference. The Supreme Court did not provide sufficient reasons. Although Mr Šidlauskas had made it clear that he had not had a home following the unlawful sale of his apartment, and that the amount of damages which he claimed was intended to cover the purchase of a new comparable apartment, it did not appear that the Supreme Court took any account of his ability to obtain a new home. The domestic courts failed to strike a fair balance between his right to the peaceful enjoyment of his property and any competing general interest. Awarding him compensation which was several times below the market value of his apartment at the time when he submitted his claim to the domestic courts and which was insufficient for him to obtain a new comparable apartment imposed an individual and excessive burden on him. The ECtHR awarded €11,580 in respect of pecuniary damage (the market price of the apartment in 2007 when Mr Šidlauskas submitted his claim to the domestic courts, after subtracting his debt to the utility service provider and the amount already awarded to him by domestic courts) and €6,500 in respect of non-pecuniary damage.

The EctHR found that there had been a violation of Article 1 of Protocol No 1. Although:

The ECtHR decided that Spath Holme’s complaint that the Order breached their ECHR rights was inadmissible. There was no breach of Article 1 of Protocol No 1. The Order did not amount to a formal or de facto appropriation. Although it did deprive the applicant of part of its income from its property and so constituted a ‘control of use’ it was provided by law and represented ‘a legitimate aim of social policy, the regulation of which cannot entirely be left to the play of market forces.’ Bearing in mind the wide margin of appreciation afforded to states in determining the existence of social problems, and ways for remedying them, the effects of the Order were in no way disproportionate. (See Mellacher v Austria (Mellacher v Austria) and James v UK (James v UK) There was no breach of Articles 6 (right to a fair hearing), 13 (effective remedy) or 14 (discrimination).

The ECtHR reiterated that an interference with the peaceful enjoyment of possessions must strike a ‘fair balance’ between the demands of the public, or general interest of the community, and the requirements of the protection of the individual’s fundamental rights. Compensation terms under the relevant legislation are material to the assessment of whether the contested measure respects the requisite fair balance, and notably, whether it does not impose a disproportionate burden. The court concluded that the failure to pay adequate compensation imposed on the Tuleshovs an individual and excessive burden and upset the fair balance between the demands of the public interest on the one hand and their right to the peaceful enjoyment of their possessions on the other. Accordingly there had been a violation of Article 1 of Protocol No 1. Turning to Article 8, the ECtHR accepted that the statutory provision which resulted in the family’s eviction was lawful in domestic terms and in the pursuit of the ‘public interest’ – ie, protecting the rights of the lawful owner. How-ever, 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 €18,350 for any pecuniary damage they sustained as a result of the loss of their house and their eviction and €20,000 in respect of non-pecuniary damage.

The ECtHR concluded that the compulsory letting of land at such a low level of rent, which bore no relationship to the actual value of the land, was incompatible with the right to peaceful enjoyment of possessions. There was accordingly a violation of Article 1 of Protocol No 1.

The ECtHR found that the sale amounted to a violation of Article 1 of Protocol No 1 ECHR. The interference with Mr Vaskrsić’s right to peaceful enjoyment of his possessions was in accordance with the law and served the legitimate aim of protecting the creditors. However, the house was sold for half its market value. The enforcement court did not consider any alternative measures, despite the fact that Mr Vaskrsić appeared to have been employed and to have had a monthly income. The relevant domestic legislation did not explicitly place an onus on the enforcement court to opt for less intrusive enforcement measures or set any minimum threshold in respect of the amount of debt owed. Even a minor debt could be enforced by means of the judicial sale of a house. Although there is a wide margin of appreciation, the state failed to strike a fair balance between the aim sought and the measure employed. The court awarded €77,000 in respect of pecuniary damage and €3,000 in respect of non-pecuniary damage.

The ECtHR found that there was a deprivation of property within the meaning of the second sentence of Article 1 of Protocol No 1. It accepted that the interference with the applicants’ property rights was provided for by Bulgarian law. On whether it pursued a legitimate aim, the court reiterated that, because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than international judges to appreciate what is ‘in the public interest’. There was no doubt that the Restitution Law, which provided that the state should restore property it had expropriated during the communist regime without compensation, pursued an important aim in the public interest. The approach of authorising persons whose property had been expropriated by the state in the 1940s without compensation to claim it back not only from the state but also from private individuals, whenever the latter’s title had been tainted by abuse of power or breaches of the law, could not be considered illegitimate or not in the public interest. However, legislation should make it possible to take into account the particular circumstances of each case, so that persons who acquired their possessions in good faith are not made to bear the burden of responsibility which is rightfully that of the state which once confiscated those possessions. The issue of proportionality should be decided having regard to whether the factual and legal basis of the case falls clearly within the legitimate aims of the Restitution Law, and the hardship suffered and the adequacy of the compensation obtained. After examining individual cases, the court found violations of Article 1 of Protocol No 1 in four cases and that there was no violation in five other cases.

The ECtHR stated that the concept of ‘possessions’ in Article 1 of Protocol No 1 has an autonomous meaning. In substance it guarantees the right of property. A ‘possession’ may be either an ‘existing possession’ or a claim, in respect of which the applicant can argue that he has at least a ‘legitimate expectation’ of obtaining effective enjoyment of a property right. The ‘legitimate expectation’ may also encompass the conditions attaching to the acquisition or enjoyment of property rights. Taking into account Mr Veselinski’s previous contributions and the agreements in force at the time, he had a ‘legitimate expectation’ that the purchase of his apartment would be at a reduced price. The Supreme Court’s decision was an unjustified interference with his peaceful enjoyment of his possessions and therefore a violation of Article 1 of Protocol No 1.

The ECtHR found that Mrs Vijatović’s claim to purchase the flat had a sufficient basis in national law to qualify as an ‘asset’ and so was a ‘possession’ protected by Article 1 of Protocol No 1. In order to be compatible with that Article, any interference must be in accordance with the law, in the public interest, and proportionate to the aim pursued. Croatian courts had reached conflicting conclusions as to whether there was any time-limit for lodging requests to purchase State-owned flats. In view of this and the failure of the government to set a new time limit by statute, Mrs Vijatović did not have to comply with any time-limit for lodging her request to purchase the flat. Accordingly, the interference with her right to peaceful enjoyment of her possessions was not provided for by law and there was a violation of Article 1 of Protocol No 1.

The Court found that housing assistance was clearly a ‘benefit’ for the purposes of Article 1 of Protocol No 1. It also noted that in any case concerning a complaint based on Article 14 the four questions which the court must consider are:

The court stated:

The ECJ held that the Directive did apply to the tenancy. It applies to all residential tenancy agreements where the landlord is acting for purposes relating to a ‘trade, business or profession’ and the tenant was renting the property for use as his/her home (para 34). The court also held that if, as a matter of domestic law, the national court has power to raise an issue which was not raised by the parties, it is required to assess the fairness of a contractual term and apply the Directive. The case was remitted to the Regional Court of Appeal for disposal in accordance with the judgment.