Judgment 22619/14

Applicant type Natural person
Number of applicants4
Application no.22619/14
JudgesMarko Bošnjak, President,
 Péter Paczolay,
 Alena Poláčková,
 Lətif Hüseynov,
 Ivana Jelić,
 Erik Wennerström,
 Raffaele Sabato
Institution Court
Type Judgment
Outcome Art. 8 Violation
Reason Positive obligation
Type of privacy Procedural privacy; economic privacy
Keywords Home; destruction
Facts of the caseThe government plans to destroy an unauthorised building, while the applicants stress that the building is their legitimate home and destruction would deprive them of their right to property and right to a home.
AnalysisThe largest part of this judgement is devoted to an evaluation of the applicability of Article 1 of the First Protocol, the right to property. The ECtHR finds that this part of the claim must be dismissed ratione materiae because although the applicants had for a long time claimed the building’s possession, had used it for a long time and had renovated and enlarged it, the building had been built without authorisation and no permit had been obtained for renovating and extending the home. Also, they did not pay taxes for the building they considered their home.
Then, the Court turns to Article 8 ECHR and dismisses the government’s objection on the ground of the applicants not having exhausted all domestic remedies, because although the applicants did not frame their complaint in terms of the right to privacy in domestic proceedings, they did raise all the substantial arguments they make before the ECtHR. As to the substance of the case, the Court finds that there is a clear legal basis and a court order that served as the basis of the eviction. Also, the intended governmental action served a public interest; the unauthorised construction was not only in violation with the construction norms, the building was also situated within the protection zone of an oil well. The Court thus accepts that the action would serve the interest of public safety, as well as the protection of the rights and freedoms of others. The Court explicitly leaves in the middle whether the measure would also be in the interest of the economic well-being of the country. As to the necessity requirement, the Court is very succinct. The national court did not assess the proportionality of the eviction and demolition of the building, in particular, it did not take into account of applicants’ claim that if effectuated, the destruction of their home would force them to live on the streets. Thus, if effectuated without a proper proportionality test being conducted, Article 8 ECHR would be violated. Thus, the state is under a positive obligation to ensure that the procedural elements implicit in Article 8 ECHR are respected.
There are two additional interesting points to this case. First, the applicants have asked the Court to annul the intended measure by the government, but the Court refers that question to the Committee of Ministers, who it feels is best placed to make a decision on this point. Second, the applicants request damages, but the Court rejects that claim, because the decision to demolish their home had not yet been effectuated, and so no damage had occurred.
In a partly dissenting opinion, judge Sabato argues that the domestic authorities had adequately taken into account the proportionality of the intended decision. He also stresses that countries cannot be asked to provide for new housing to people who are evicted from illegal buildings. ‘In this context, it should not be made a requirement that alternative accommodation must in all instances be provided by the State, especially if – as in the present case – the eviction or demolition is not enforced immediately and the persons concerned are given the time to find another dwelling. An obligation for the State to provide alternative housing, for a given time, can be envisaged only in order to protect vulnerable persons, a group to which the applicants did not claim to belong. Therefore, any need for the domestic courts to specifically assess the availability of alternative accommodation, once they have identified a relevant danger in the situation, can be excluded.’
Other Article violation? No violation Article 1 First Protocol
Damage awarded That the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 630 (six hundred and thirty euros), plus any tax that may be chargeable to them, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
Documents Judgment