Proper judicial assessment of evictions is part of the proportionality test

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.

One thought on “Proper judicial assessment of evictions is part of the proportionality test

  1. Proportionality should be at the heart of compatability with ECHR because it means fairness to a vulnerable old person. Furthermore, and more relevant perhaps, is that in Uk law the law must be compatabile with the domestic legislation; any new act could be struck down, and even ruled unconstitutional by the new Supreme Court. The Court is now a constitutional court due to the separation of powers, usually indicative of a federal state, like the USA or Australia. Reasonableness has come a long way in common law usage. The concept has been deployed by barristers as a test in cases of tort. Did the plaintiff behave in a way that was likely to anticipate a breach of the obligation? How remote was the defendant from actual causation of the fault; can remoteness be proven as such? Usually such as test would be proximate cause; in other words was the defendant next the damage. Was it possible to avoid such damage from occuring? Critical therefore is the admissibility of material facts. The absence of reasonablemess can be used to show the presence of negligence. Would it be reasonable for a landlord to evict an elderly lady? Take into consideration, her age, any illness and infirmity, time before the next life. Prior consideration must have been given as her rights of ownership or occupation, in an earlier time. The British government have recently muttered about repealing the Human Rights Act 1998, which made primary legislation of the ECHR. The lack of enforceability of oppressed rights is now more likely due to the concentration solely upon an economic motif for legal contemplation when arresting the development of cases in human rights law on the margins of appreciation. It is less likely that appeals will be available on Legal Aid in cases where the doubt as to procedure might have been heretofore challenged in court. Far from closing loopholes, case like these will make it harder to defend the rights of plaintiff; the applicant’s form, where landlordism is more prevalent, and homelessness may increase. Article 8 no longer possible, the case would not come to court, because the landlord would not be required to have a defence.

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