June 14, 2012
This guest post was written by Wouter Vandenhole, Professor of Human Rights Law and holder of the UNICEF Chair in Children’s Rights at the University of Antwerp. Further information on Prof. Vandenhole can be found here.
There is a growing interest with the human rights of older people (see e.g. Alexandra Timmer’s post here), also from the European Court of Human Rights. In the recent judgment of Bjedov v Croatia, the Court examined the eviction of an elderly lady from her flat, as the holder of a specially protected tenancy of a socially owned flat. Under domestic law, tenants could be evicted for not having lived in the flat for more than six months. In this particular case, Ms Bjedov had not lived in her flat for ten years.
A first question the Court had to address was whether the flat could be considered her home, as the lawfulness of the occupation was questioned, and as she had not been living in the flat between 1991 and 2001. In line with earlier case-law, the Court looked at the factual circumstances, i.e. whether she had sufficient and continuous links with the flat. As she had no other home, had been living in the flat again since 2001, and the flat was here actual place of residence, the flat was considered to be her home for the purposes of Article 8 ECHR.
The key question in assessing the eviction under Article 8 § 2 ECHR was whether the interference was proportionate to the legitimate aim pursued, in this case the accommodation of housing needs of citizens in need. This proportionality assessment is made at the procedural and substantive level. Procedurally, the proportionality has to be assessed by an independent tribunal that conducts regular civil proceedings, and not merely by the judge dealing with enforcement proceedings. Substantively, the necessity of the eviction has to be demonstrated. In particular, as no damage to the interests of local authorities nor of other private parties was caused by leaving her in her flat, while she was old and sick and had been living in the flat for many years, the Court held that the eviction violated Article 8.
Clearly, old age is not a trump (like young age, framed as best interests of the child often is) to automatically make the balance tilt in favour of the applicant, but it is taken into account as an element in the proportionality test. Interestingly, the Court refers in this case repeatedly to proportionality and reasonableness. Reasonableness is more of a common law concept, which is employed by the South African constitutional court in litigation on economic, social and cultural rights.