The View from Strasbourg

THE VIEW FROM STRASBOURG

Article 8 of the European Convention on Human Rights states:-

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a Public Authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the Country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Whilst the courts in the United Kingdom remain very reluctant to allow defendants in possession actions where the landowner or landlord appears to have an absolute right of possession to raise Article 8, the European Court of Human Rights in Strasbourg appears to have a very different attitude to this issue. This is exemplified by the recent case of Cósić – v- Croatia (15th January 2009).

This case did not involve a Gypsy or a Traveller but it is potentially very important for Gypsies and Travellers facing eviction from unauthorised encampments and unauthorised developments. Additionally, until the Mobile Homes Act 1983 is brought into force on local authority Gypsy/Traveller sites, it may also be important for Gypsies and Travellers facing eviction from such sites.

In 1984 Mrs Cósić took up a job at a school in PoZega in Croatia. The school provided her with a flat which it had temporarily leased from the then owner of the flat, the Yugoslav People’s Army (YPA). That lease expired in 1990 and was not renewed thereafter. In 1991 the Croatian State took over all the property of the YPA and thereby became the owner of the flat in question. Though the school made several attempts to renew the lease, the lease was never renewed. In 1999 the State brought a possession action against the school and against Mrs Cósić in the PoZega Municipal Court seeking Mrs Cósić’s eviction. On the face of it, the State had an absolute right to possession since Mrs Cósić had no security of tenure provided to her by Croatian law. The Municipal Court granted a Possession Order. Mrs Cósić appealed but both the PoZega County Court and the Croatian Constitutional Court rejected her appeal. She therefore took her case to the European Court of Human Rights (ECtHR).

The ECtHR upheld her application and awarded Mrs Cósić damages. The ECtHR stated:-

….the loss of one’s home is a most extreme form of interference with a 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 and reasonableness of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his or right of occupation has come to an end.

Cósić – v – Croatia is just one in a line of cases where the ECtHR has made it clear that Article 8 must be considered when dealing with a possession action. It is hoped that, in the not too distant future, the UK court’s will finally accept this position.

Cósić – v – Croatia, Application No: 28261/2006

Chris Johnson, Travellers Advice Team at Community Law Partnership
The Travellers Advice Team at the Community Law Partnership runs a Community Legal Advice Funded Telephone Helpline (0845 120 2980) which is available Monday to Friday 10.00 am to 1.00 pm and 2.00 pm to 5.00 pm.