In the case of Buckland v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
LechGarlicki, President,
NicolasBratza,
PäiviHirvelä,
GeorgeNicolaou,
LediBianku,
NebojšaVučinić,
Vincent A. De Gaetano, judges,
and Fatoş Aracı,Deputy Section Registrar,
Having deliberated in private on 28 August 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
40060/08) against the United Kingdom of Great Britain and Northern Ireland
lodged with the Court under Article 34 of the Convention for the Protection of
Human Rights and Fundamental Freedoms (“the Convention”) by aBritish national, Ms Maria Buckland (“the applicant”), on 12 August 2008.
The applicant, who had been granted legal aid, was represented by the Community Law Partnership,a firm of solicitors based in Birmingham. The United Kingdom Government (“the Government”) were represented by their
Agent, MsA. Sornarajah, of the Foreign and Commonwealth Office.
The applicant alleged that the Court of Appeal’s
decision to dismiss her appeal and uphold the judgment making a possession
order constituted an unjustified breach of her right to respect for her home
and her family life and discriminated against her, in violation of Article 8
taken alone and in conjunction with Article 14.
On 3 May 2011 the application was communicated to
the Government. It was also decided to rule on the admissibility and merits of
the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1959 and lives in Cardiff.
The applicant is a gypsy. In 1999 she moved to
the Cae Garw caravan site in Port Talbot,Wales, with her two children. The site
was owned by Neath Port Talbot County Borough Council.
On 12 June 2000 Neath Port Talbot County Borough
Council entered into a licence agreement with the Gypsy Council which provided
that the latter would manage the site.
On 29 March 2004 the applicant entered into a
licence agreement with the Gypsy Council to occupy pitch 16 on the site. It was
a condition of the licence that:
“The Licensee or his/her resident family ... must not create a
nuisance on the sites or to neighbouring properties. The Licensee shall be held
responsible if any ... person living with ... her contravenes any of these Site
Rules or Conditions.”
On 30 December 2004 the Gypsy Council issued a
notice of termination of licence to the applicant which expired on 6 February
2005. The notice referred to a clause of her licence agreement which provided:
“The Gypsy Council or the Licensee may terminate this licence
by giving the other not less than 28 days written notice to expire on a Sunday
in any week.”
No further reasons justifying the termination
were given.
Notices to quit were also given to her parents, who occupied a different pitch on the site.
On 18 January 2005 amendments to section 4 of
the Caravan Sites Act 1968 (“the 1968 Act”) entered into force which introduced
the possibility for possession orders to be suspended by a court on the
application of the occupier for up to twelve months at a time (see paragraph 36
below).
On 2 August 2005 the Gypsy Council issued a
claim for possession against the applicant and five members of her extended
family, including her parents, in Neath Port Talbot County Court. In its
particulars of claim, the Gypsy Council alleged that all six defendants were
guilty of causing very substantial nuisance to the site to the detriment of
other occupiers.
The applicant’s parents did not apply for
suspension or postponement of the orders. On 1 June 2006, possession orders
were made against them by consent.
An oral hearing took place between 24 and 26
July 2006 in Swansea County Court and 28 July 2006 in Neath County Court in
respect of the claim for possession against the applicant. In a witness
statement lodged prior to the hearing, the applicant indicated that she
intended to leave the site when her parents left.
On 25 July 2006
Judge Bidder QC gave a judgment on the preliminary issue of whether the
applicant could challenge the making of a possession order in her case. He
considered himself bound by the decision of the House of Lords in Kay
and Price(see paragraph 42
below), which had examined the effect of this Court’s judgment in Connors v.
the United Kingdom, no. 66746/01, 27 May 2004. Thus, he concluded, the only options open to the applicant were to challenge the domestic law itself
or to commence judicial review proceedings based on conventional grounds. He
concluded:
“58. ... I do not consider it to be arguable that the decision
of the claimants to seek possession against her was unreasonable or that their
decision to invoke their domestic law rights could be castigated as
unreasonable ...
59. Moreover, the fact that parliament has amended the
applicable domestic legislation to afford the gypsy occupier the opportunity to
contend that any possession order should be suspended for 12 months at a time
distinguishes that case from Connors, and given that that amendment was
considered in Kay and Price I find it impossible to say ... that
there is a seriously arguable point raised that the law which enables the court
to make the possession order is incompatible with article 8 ...”
He invited submissions from the applicant as to
the possible temporary suspension of any possession order. He added:
“71. I should say that on the issue of suspension of the ...
order against the [applicant] of possession I would invite the parties to
consider the date of 4th November 2006 being the date on which the
[applicant’s] parents are required to leave and on which she indicates that she
would leave anyway ...”
On 28 July 2006, following the applicant’s submissions that any possession order against her should be
suspended, the judge handed down his judgment on the remaining issues. Having
reviewed the allegations made against the applicant by the claimant, the judge concluded:
“27. ... I am not satisfied that Maria Buckland has herself
been guilty of any offensive behaviour on site, or of any breach of licence, apart from the relatively minor failure to pay the water charges.”
He was, however, satisfied that her son, who resided part of the time with her, had been involved in an incident on site in which he
threatened someone with a gun, although it was not clear whether the gun had
been real or merely an imitation; and had dumped garden refuse on the site.
Turning to consider
whether the applicant’s personal circumstances, and those of her son, justified a suspension of the possession order which he would be making in her case the judge
noted:
“32. In relation to Maria Buckland, while I am obliged to make
a possession order, I find her only breach of site conditions has been recent
and is a very modest failure to pay water charges. She has indicated in a
recent statement that she intends to move from the site when [her parents]
leave, that is on or before 4pm on 24th November. I do consider it
appropriate to suspend enforcement of the possession order against her until
the same time and date. However, I am clear that the behaviour of [her son] on
this site and his attitude towards the Farrows [the family of the site manager]
is such that I have to impose conditions on her continued possession, as sought in the draft order – [her son] lives half his time with his father, and I have no doubt that if he cannot live with his mother, he will be able to live with his
father ...”
He made an order for possession against the
applicant, which he suspended until 24 November 2006 upon the condition that
her son leave the site and that she discharge the GBP 95 arrears of water
charges at the rate of GBP 5 per week.
On 18 April 2007 the applicant, who was still resident at the site, was granted permission to appeal the possession order to
the Court of Appeal. A stay of execution of the order of 28 July 2006 was also
ordered.
In November 2007 a bill which would amend the
Mobile Homes Act 1983 (“the 1983 Act”) was introduced to Parliament. The effect
of the proposed amendment was to allow a defendant in possession proceedings
such as the applicant to challenge before the County Court the reasonableness
of making a possession order.
On 12 December 2007 the applicant’s appeal was
dismissed. Considering the impact of the amendment to the 1968 Act to allow
suspension of a possession order on whether the applicant could succeed in a
conventional public law challenge to the decision to seek a possession order, Lord Justice Dyson noted:
“42. The significance of the amendment is that a claimant’s
decision to seek possession does not involve summary eviction without judicial
scrutiny of the justification of the claim to possession. By issuing
proceedings, the claimant submits to the jurisdiction of the court, which has power to investigate all the circumstances of the case, including the claimant’s
complaints about the defendant’s behaviour.”
He continued:
“43. ... It may be that, for the reasons given by Lord Brown [in Kay], a public law defence could have been
raised successfully in Connors. I would suggest that this is not so much
because the family had been in occupation for a great length of time, but rather because it was unreasonable and grossly unfair for the local authority to seek a
possession order and obtain the eviction of the occupier merely on the basis of
a termination of the licence ‘without the need to make good any underlying
reason for taking such precipitate action’. The real difference between the
present case and Connors is not that the appellant had been in
occupation for a shorter period than was the family in Connors ... On
any view, the site was her home and had been for a substantial period of time.
The fact that she had not been in occupation for as long as the family in Connors
is not, in my judgment, of much significance. The real difference between
the two cases is that in Connors,once the licence had been terminated, the authority was entitled to an order for possession whose enforcement could not be suspended
by the court.”
He concluded that since the
amendment to the 1968 Act, it was difficult to conceive of a case in which
a public law defence would succeed. Referring also to the fact that Judge
Bidder had made a finding of misconduct on the site by the applicant’s son, for whose behaviour she was responsible under the terms of the licence, Dyson LJ considered
that the judge was right to hold that the public law defence was not seriously
arguable.
Dyson LJ further noted that the factual
situation of Connors was not materially different from the present case
in that in both cases the defendant had occupied a site as a home for a number
of years. Further, in both cases the claimant had validly and properly
terminated the defendant’s licence to occupy so that the defendant had become a
trespasser; the claimant was entitled to an order for possession as the owner
of the land; and no further justification was required to seek an order for
possession. However, it was agreed by the parties that it was not necessary to
decide whether the present case could be distinguished from Connors as
the distinction was only relevant for any appeal before the House of Lords.
Finally, in respect of the applicant’s argument
that the amendment to section 4 of the 1968 Act did not remedy the
incompatibility with Article 8, Dyson LJ emphasised that, in principle, a wide margin of appreciation was left to the national authorities in such
matters. However, he accepted that the vulnerable position of gypsies as a
minority meant that “some special consideration should be given to their needs
and different lifestyle both in the relevant regulatory framework and in
reaching decisions in particular cases” (citing Connors, § 83). He found that the main reason for the narrowing of the margin of appreciation in Connors
itself was that the complete absence of any procedural safeguards was a
serious interference with the applicant’s Article 8 rights in that case, which called for particularly weighty reasons of public interest in justification. However, the precise scope of these safeguards was in his view, a matter for the national authorities
to determine. He considered that provided that a reasonable degree
of protection was afforded by the domestic law, the Strasbourg Court would
not interfere, even if a greater degree of protection could have been afforded.
He accordingly rejected the applicant’s submissions, noting:
“60. The objectionable feature of the legal regime in place
before the amendment was that the court was bound not merely to make an order
for possession, but to order the eviction of an occupant such as the appellant
provided that the 4 weeks’ notice was given. Absent a public law challenge, the occupant had no opportunity to challenge the reasons given by the local authority for
seeking possession and the court had no jurisdiction to take the reasons into
account in deciding whether to order the occupant’s eviction. The local
authority’s reasons were irrelevant as were the occupant’s personal
circumstances. Nor did the court have power to suspend an order for possession
even in circumstances of extreme hardship which indicated that eviction would
not be justified under article 8(2). In short, there was no opportunity for the
court to make any assessment of the justification for eviction in order to
determine whether the interference with an occupier’s rights under article 8(1)
was justified on an application of article 8(2). Provided that the relevant
formal requirements had been satisfied, the role of the court was purely
mechanistic.
61. The amendment has introduced procedural
protections which ensure that the role of the court is no longer a mechanistic
one even when a local authority seeks to evict a licensee from a caravan site.
Summary eviction has been replaced by judicial examination. Section 4(1) now
provides that the enforcement of a possession order may be suspended for such
period up to 12 months ‘as the court thinks reasonable’. The court has a wide
discretion under subsection (2) to impose conditions when making an order for
suspension. By subsection (3), the court may extend the suspension of the
possession order for up to 12 months at a time. Subsection (4) requires the
court to have regard to ‘all the circumstances’ in deciding whether to exercise
its power to suspend. The court is, therefore, required to conduct an
examination of all the circumstances of the case ...”
He concluded:
“63. In my judgment, the decision to provide the procedural
safeguards introduced by the amendment of section 4 of the 1968 Act was within
the margin of appreciation available to the United Kingdom. More generous
safeguards could have been introduced (and they will be when the 1983 Act is
amended). But the amendment goes far enough to meet the real thrust of the
criticisms made in Connors.”
As to the applicant’s argument that the
legislation discriminated against gypsies, Dyson LJ found that although
the discrimination point was one of the features of the Court’s reasoning in Connors,it was not the main reason for the decision. Even if that was wrong,Dyson LJ considered that by addressing the lack of procedural safeguards for gypsies of local
authority sites,the amendment had also gone a long way to meeting the
discrimination point. While discrimination would not be cured completely until
the 1983 Act was amended, it had been much mitigated. Thus to the extent that
the discrimination persisted, the decision not to eliminate it altogether fell
within the margin of appreciation accorded to the contracting States.
On 18 February 2008 the House of Lords refused
the applicant’s request for permission to appeal.
In May 2008 the applicant left Cae Garw caravan
site for alternative accommodation on land owned by her brother. She claims
that her departure was the result of the refusal of leave to appeal and in the
face of further threats of eviction The land owned by her brother has no
planning permission for residential use and its occupants, which include the
applicant’s brother, his six children and the applicants’ parents, share minimal facilities, namely one toilet and one sink with cold running water in a shed
with no lighting.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Caravan Sites Act 1968
Part I of the Caravan Sites Act 1968 (“the 1968
Act”) provides limited security of tenure to certain occupiers of caravans and
caravan sites. Section 2 provides that at least four weeks’ notice of
termination of a licence to occupy a caravan site must be given.
Section 4(1) provides that when a court makes an
order for the removal or exclusion of an occupier from a caravan site, it may suspend the enforcement of that order for up to twelve months at a time.
Section 4(4) provides that in considering
whether or how to exercise its powers under this section, the court shall have
regard to all the circumstances, and in particular to the questions:
“(a) whether the occupier of the caravan has failed, whether before or after the expiration or determination of the relevant residential contract, to observe any terms or conditions of that contract, any conditions of the site licence, or any reasonable rules made by the owner for the management and conduct of the site or the
maintenance of caravans thereon;
(b) whether the occupier has unreasonably refused an offer by
the owner to renew the residential contract or make another such contract for a
reasonable period and on reasonable terms;
(c) whether the occupier has failed to make reasonable efforts
to obtain elsewhere other suitable accommodation for his caravan (or, as the case may be, another suitable caravan and accommodation for it).”
Section 4(6) of the
1968 Act formerly excluded the court’s power to suspend the enforcement of a
possession order under section 4(1) in the case of possession proceedings
brought by local authorities. However, the exclusion of local authority caravan
sites from the ambit of the power to suspend under section 4(1) was removed by
the Housing Act 2004, which entered into force on 18 January 2005,in respect of proceedings begun on or after that date.
B. The Mobile Homes Act 1983
The Mobile Homes Act 1983 (“the 1983 Act”) was
enacted,inter alia,to restrict the eviction from caravan sites of
occupiers of caravans. It applies to any agreement under which a person is
entitled to station a mobile home on land forming part of a “protected site”
and to occupy it as his only or main residence and implies into licence
agreements falling within the ambit of its provisions various protective terms.
Section 2(1) and paragraph 4 of Schedule 1 to
the 1983 Act provide that the owner of a relevant site is entitled to terminate
the licence only if (i) he satisfies the court that the occupier has breached a
term of the licence agreement and has failed to comply with a notice to remedy
the breach; and (ii) the court considers it reasonable for the agreement to be
terminated.
Section 5(1) defines“protected site”by reference
to its definition in the 1968 Act (essentially applying to land authorised for
long-term residence). However, the section expressly excludes from the
definition any land occupied by a local authority as a caravan site providing
accommodation for gypsies.
Pursuant to section
321 and Schedule 16 of the Housing and Regeneration Act 2008, which was enacted on 22 July 2008, the exclusion of land used for accommodating gypsies from
the definition of “protected site” in section 5(1) of the 1983 Act is removed.
The amendment has entered into force in England but has not yet entered into
force in Wales.
C. Judicial consideration of Article 8 in possession proceedings
For a general summary of domestic proceedings
prior to November 2010 regarding the right of defendants to rely on Article 8
in the context of a defence to possession proceedings, see the Court’s judgment
in Kay and Others v. the United Kingdom, no. 37341/06, §§ 18-43, 21 September 2010.
42. Notably, in Kay and others v.
London Borough of Lambeth and others; and Leeds City Council v. Price and
others [2006] UKHL 10, Lord Hope of Craighead clarified that a challenge to
possession proceedings could only be based either on an argument that the law
itself was incompatible with Article 8; or on conventional judicial review
grounds.
The subsequent case of Doherty and others v.
Birmingham City Council[2008] UKHL 57, decided after the applicant’s appeal
was dismissed, concerned the eviction of gypsies from a local authority caravan
site. Lord Hope concluded that it was open to the defendant to argue that the
law itself was incompatible with the Convention because the relevant legal
framework was indistinguishable from that which applied in Connors. He
considered that in light of the clear terms of the legislation allowing the
local authority possession, there was no scope for interpreting it in a manner
which was Convention-compatible and continued:
“50. ... This raises the question whether your Lordships should
make a declaration of incompatibility ... The incompatibility with the
appellant’s article 8 rights that was to be found in section 4(6)(a) of the
1968 Act has been removed by section 211(1) of the Housing Act 2004. As already
noted, a clause was included in the Housing and Regeneration Bill to remove the
exclusion of local authority sites which provide accommodation for gipsies from
the protection of the 1983 Act. Nevertheless, prior to its receiving the Royal
Assent ..., Lord Walker favoured the making of a declaration of incompatibility
in relation to section 5(1) of the 1983 Act.
51. I was at first inclined to doubt whether a declaration was
necessary. The power to make a declaration ... is, after all, a discretionary one. But on reflection I agreed that it would be appropriate to make such a
declaration in this case. Indeed I considered that the decision of the Strasbourg court in Connors left the House with no alternative but to do this. That
was a judgment which waspronounced in a case against the United Kingdom. Its decision is asplain an indication as there could be that there was an
incompatibility inour legislation that ought to be addressed by the United
KingdomParliament ... In such circumstancesthe decision as to whether the
incompatibility should remain was not forthe court to take. It had to be left
to the government and to Parliament,and it could not be taken for granted that
the amending legislation wouldbe passed. In the events that have happened, however, the making of adeclaration has become unnecessary ...”
On 3 November 2010 the Supreme Court handed down
its judgment in ManchesterCity Council v. Pinnock[2010] UKSC 45
(“Pinnock”), sitting as a panel of nine judges. The case concerned
possession proceedings brought against a demoted tenant. Following a review of
the case-law, the Supreme Court considered the following propositions to be
well-established in the jurisprudence of this Court:
“(a) Any person at risk of being dispossessed of his home at
the suit of alocal authority should in principle have the right to raise the
question of theproportionality of the measure, and to have it determined by an
independenttribunal in the light of article 8, even if his right of occupation
underdomestic law has come to an end ...
(b) A judicial procedure which is limited to addressing the
proportionalityof the measure through the medium of traditional judicial review
(i e, onewhich does not permit the court to make its own assessment of the
facts inan appropriate case) is inadequate as it is not appropriate for
resolvingsensitive factual issues ...
(c) Where the measure includes proceedings involving more than
one stage,it is the proceedings as a whole which must be considered in order to
see ifarticle 8 has been complied with ...
(d) If the court concludes that it would be disproportionate to
evict a personfrom his home notwithstanding the fact that he has no domestic
right toremain there, it would be unlawful to evict him so long as the
conclusionobtains – for example, for a specified period, or until a specified
eventoccurs, or a particular condition is satisfied.”
The Supreme Court considered that in order for
domestic law to be compatible with Article 8 of the Convention,where a court was asked by a local authority to make an order for possession of a person’s home, the court had to have the power to assess the proportionalityof making the order, and, in making that assessment, to resolve any relevantdispute of fact. In terms of the
practical implications of this principle, the Supreme Court noted that if
domestic law justified an outright order for possession, theeffect of Article 8could, albeit in exceptional cases, justify granting an extended period for possession, suspending the order forpossession on the happening of an event, or even refusing an order
altogether. Finally, the court observed that the need for a court to have
the ability to assess theArticle 8 proportionality of making a possession
order in respect of a person’shome might require certain statutory and procedural
provisions to be revisited.
On 23 February 2001 the Supreme Court handed
down its judgment in the joined cases of Mayor and Burgesses of the London
Borough of Hounslow v. Powell; Leeds City Council v. Hall; Birmingham City
Council v. Frisby[2011] UKSC 8 (“Powell and others”). In its
judgment, the court extended its approach in Pinnock to introductory
tenancies and tenancies under the homelessness regime.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant complained under Article 8 of
the Convention that the Court of Appeal’s decision to uphold the possession
order constituted an unjustified breach of her right to respect for her home
and her family life. Article 8 reads as follows:
“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 well-being 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.”
The Government contested that argument.
A. Admissibility
1. The parties’ submissions
The Government emphasised that in the domestic
proceedings before the County Court, the applicant’s explicit position was that
she intended in any event to leave the site when her parents left. In their
view, it therefore followed that she was neither directly affected nor at risk
of being directly affected by the order of 28 July 2006, which suspended
possession for the period sought, or the statutory scheme under which it was
made. According to the Government the applicant was now seeking to challenge
the statutory scheme in abstracto. They therefore invited the Court to
find that the applicant was not a victim within the meaning of Article 34 of
the Convention.
The applicant denied that she could not claim
victim status. She explained that she had originally received legal advice to
the effect that there was no way of challenging the making of the possession
order. She further indicated that she had not decided to leave the site of her
own free will but because her parents were required to leave the site as a
result of a possession order made in proceedings which violated their rights
under Articles 8 and 14 of the Convention. She emphasised that she had
stayed on the site until May 2008, when she left because of the threat of
eviction as a consequence of the possession order which had been made.
2. The Court’s assessment
The Court acknowledges that the applicant
expressed the intention to leave the site when her parents did so. However, she later qualified this statement, explaining that while she still intended to leave, she wished to have the option to remain. It is further clear that she did not leave the site
until 30 May 2008, some eighteen months after the suspension period stipulated
by the County Court had expired. The Court further observes that, while still resident on the site, she pursued an appeal to the Court of Appeal arguing that
the making of the possession order breached her rights under Article 8 of
the Convention.
In these circumstances, the Court is satisfied
that the applicant was not seeking to challenge the law in the abstract but was
directly affected by the making of the possession order. She therefore can
claim to be a victim of an alleged violation of her rights under Article 8
of the Convention.
The Court further notes that this complaint is
not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention, nor is it inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. Was there an interference with the applicant’s
rights?
(a) The parties’ submissions
The applicant maintained that there had been an
interference with her right to respect for her home.
The Government accepted that the pitch at the
site amounted to the applicant’s home and that in principle a possession order
would amount to an interference with her rights. However, in light of the
applicant’s explicit position before the County Court that she would leave the
site when her parents left, and the resulting decision of the judge to suspend
the possession order until that time, no interference arose in the
circumstances of the case.
(b) The Court’s assessment
As noted above, the Court is satisfied that the
applicant was directly affected by the making of the possession order. It is
therefore also satisfied that the making of the possession order constituted an
interference with her right to respect for her home.
2. Was the interference justified under Article 8 § 2 of the Convention?
(a) The parties’ submissions
(i) The applicant
The applicant argued that the interference with
her Article 8 rights was disproportionate and that a violation of both the
procedural requirements and the substance of Article 8 had, as a result, occurred.
In respect of the procedure, the applicant claimed that she had been unable to challenge the claim for possession in the
domestic proceedings. The fact that she was able to apply for suspension
provided insufficient procedural protection for the purposes of Article 8.
She pointed out that the amendment to the Mobile Homes Act 1983 (see paragraph 40
above) was not yet in force in Wales.
She further argued that the decision to grant a
possession order was wholly disproportionate on the facts of her case, in light of the grounds for seeking possession, her own conduct, her personal circumstances
and the positive obligation on the State to facilitate her traditional way of
life. She contended that the low value of her arrears was not sufficient to
justify the order and that the court could have imposed an injunction to
prevent her son from residing on or visiting the site. She did not accept that
an Article 8 defence would be seriously arguable only in wholly
exceptional circumstances. However, even if this were the case, she considered that her circumstances were wholly exceptional.
(ii) The Government
The Government considered that in the present
case the possession order pursued the aims of protecting the local authority’s
interests as owner of the site; ensuring that the statutory scheme for housing
was properly applied; and, in light of the findings of misconduct in respect of
the applicant’s son, protecting the rights and freedoms of others who resided
or might visit the site.
As to the necessity of the interference, the Government addressed both the applicant’s procedural and substantive complaints. Regarding
her procedural complaint, they explained that under the statutory scheme in
place at the time, the applicant had the right to contest when any possession
order could take effect. The domestic courts were under a duty to exercise
their power to suspend in accordance with the requirements of the Convention.
Moreover, having obtained a suspension of the possession order for a period of
up to twelve months, she was entitled before the expiry of that period to argue
that a further period of suspension should be granted. It was clear from the
terms of the County Court judgment that in ordering suspension, the judge considered the applicant’s personal circumstances and he granted the full suspension
period sought. The Court of Appeal subsequently found that the applicant’s case
was not a wholly exceptional one requiring examination, within the meaning of McCann
v. the United Kingdom, no. 19009/04, § 54, ECHR 2008; and Kay and
Others v. the United Kingdom, no. 37341/06, § 73, 21 September 2010.The Government considered that the scheme
itself and the manner in which it was applied in the applicant’s case were
sufficient to satisfy the requirements of Article 8 of the Convention.
They distinguished the Court’s judgment in Connors,cited above, on the basis that since that case was decided, section 4 of the 1968 Act had been amended (see
paragraph 36 above) which, they argued, resulted in the necessary degree
of procedural protection being afforded to the present applicant.
The Government also argued that the making of
the possession order was proportionate as a matter of substance. First, the applicant could not realistically have requested a suspension beyond 24 November 2006 as
she planned to leave the site on that date. Second, the order was proportionate
given the findings of misconduct as regards the applicant’s son and the absence
of compelling reasons which would make her case an “exceptional” one. As to the
applicant’s suggestion that the County Court could simply have made an
injunction to prevent the applicant’s son from living on the site, the Government contended that the applicant could not succeed in her Article 8 complaint
simply by arguing that some lesser step might properly have been taken.
(b) The Court’s assessment
The parties did not dispute that the
interference was “in accordance with the law” and pursued a legitimate aim. The
question remaining for examination by the Court is whether the interference was
“necessary in a democratic society” in pursuit of that aim.An interference will
be considered “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. While it is for the national authorities to make
the initial assessment of necessity, the final evaluation as to whether the
reasons cited for the interference are relevant and sufficient remains subject
to review by the Court for conformity with the requirements of the Convention
(see Connors, cited above, § 81).In making their initial assessment of
the necessity of the measure, the national authorities enjoy a margin of
appreciation in recognition of the fact that they are better placed than
international courts to evaluate local needs and conditions (see Kay, cited above, §§ 65-66).
Further, it is clear from the case-law of the
Court that the requirement under Article 8 § 2 that the interference be
“necessary in a democratic society” raises a question of procedure as well as
one of substance (see Connors, cited above, § 83; McCann, cited above, § 49; and Kay, cited above, § 67). The procedural safeguards available to
the individual will be especially material in determining whether the respondent
State has, when fixing the regulatory framework, remained within its margin of
appreciation. In particular, the Court must examine whether the decision-making
process leading to measures of interference was fair and such as to afford due
respect to the interests safeguarded to the individual by Article 8 (see Chapman
v. the United Kingdom [GC], no. 27138/95, § 92, ECHR 2001-I; Connors, cited above, §§ 83 and 92; and Kay, cited above, § 67).
As the Court has previously emphasised, the loss of one’s home is the 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 in light of the relevant principles under Article 8
of the Convention, notwithstanding that, under domestic law, his right to occupation has come to an end (see McCann, cited above, § 50; Kay, cited above, § 68; and Paulić v. Croatia, no. 3572/06, § 43, 22 October 2009).
It is clear that before the County Court, the applicant sought to challenge the making of the possession order in her case, and not merely to suspend its effect. The judge considered himself bound by the judgment in
the prior cases of Kay and Price and concluded that the only
possible challenges to the making of the possession order were to the law
itself or on conventional judicial review grounds (see paragraph 16
above). The applicant was therefore unable to challenge the making of a
possession order based on her personal circumstances.
The Court observes that, unlike in Connors, the applicant in the present case was able to argue for a suspension of the possession order
for up to twelve months. Moreover, before the expiry of any suspension period
granted she could seek a further extension. In deciding whether to grant a
suspension, the judge was required to take into account the applicant’s
personal circumstances. There is no doubt that this amendment provides welcome
additional protection to individuals faced with eviction from their homes.
However, the fact remains that the applicant was
not able to argue that no possession order ought to have been made at all. The
possibility of suspension for up to twelve months of the possession order is
inadequate, by itself, to provide the necessary procedural guarantees under Article 8.
Although further suspensions may be granted, suspension merely delays, and does remove , the threat of eviction. The Court cannot accept that the fact that an
individual may effectively be able to remain in her home in the long-term by
making repeated applications to extend suspension of a possession order removes
any incompatibility of the procedure with Article 8. It is further
significant that in the present case the County Court judge considered the
applicant’s personal circumstances to be such that suspension was justified and
he granted a suspension for the full period sought. In the circumstances it is
not possible for the Court to predict what decision he might have reached on the
granting of the possession order had he considered it open to him to refuse the
grant on the basis of personal circumstances.
Finally, the Court observes that an amendment to
the Mobile Homes Act 1983 permits a court considering whether to make a
possession order to examine the reasonableness of the termination of the
licence (see paragraph 40 above). That amendment has entered into force in England but not in Wales. It would appear that, once it does so, domestic courts in Wales will be able to assess the proportionality of a proposed eviction in compliance with
the procedural requirements of Article 8.
In conclusion, the applicant’sattempt to contest
the making of a possession order failed because it was not possible at that
time to challenge the decision to seek a possession order on the basis of the
alleged disproportionality of that decision in light of personal circumstances.
Accordingly, the Court finds that the procedural safeguards required by Article 8
for the assessment of the proportionality of the interference were not observed.
As a result, the applicantwas dispossessed of her home without any possibility
to have the proportionality of her eviction determined by an independent
tribunal. It follows that there has been a violation of Article 8 of the
Convention in the present case.
II. ALLEGED VIOLATION OF ARTICLE 14 IN
CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION
The applicant complained that the making of the
possession order constituted a violation of her rights under Article 14 taken
together with Article 8 of the Convention. Article 14 of the Convention
provides:
“The enjoyment of the rights and freedoms set forth in [the]
Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Court considers that, like her complaint
under Article 8, the present complaint is neither manifestly ill-founded is
not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention nor inadmissible on any other grounds. It must therefore be declared
admissible.
However, the Court has found above a violation
of Article 8 of the Convention. It is of the view that no separate issue
arises under Article 14 of the Convention and therefore finds it
unnecessary to examine this complaint separately.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation
to be made, the Court shall, if necessary, afford just satisfaction to the
injured party.”
A. Damage
The applicant claimed 11,000 euros (EUR) in
respect of non-pecuniary damage for the anxiety and distress suffered as a
consequence of the violation of her rights under Article 8 taken alone and
taken together with Article 14 of the Convention.
The Government considered the sum of EUR 11,000 excessive and argued that EUR 2,000 was adequate to compensate any finding of a procedural
violation of Article 8 in the applicant’s case.
Although the Court has found a procedural
violation of Article 8 of the Convention, it reiterates that it is not
possible to speculate as to what would have been the outcome if the applicant
had been able to contest the making of the possession order on the basis of her
personal circumstances. However, it is satisfied that as a result of the making
of a possession order which the applicant was unable to challenge, the applicant suffered some feelings of frustration and injustice. These are likely to have
been mitigated by the power of the County Court to suspend the order for up to
twelve months, a power which the court used in her case. The Court therefore awards
the applicant EUR 4,000 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed 12,133.69pounds sterling (GBP), inclusive of VAT,for the costs and expenses incurred beforethe
Court. This sum was composed of solicitors’ fees of GBP 5,781.22 for twenty-two
hours’ work already carried out and GBP 5,208 in anticipated fees; and
counsel’s fees of GBP 1,150. She further referred to a costs order made by
the Court of Appeal in the domestic proceedings which has not yet been enforced
and seeks reimbursement of those costs in the event of enforcement.
The Government considered the sums claimed to be
excessive, particularly as they included anticipated costs which were
inappropriate in light of the fact that there was no oral hearing in the case.
They argued that the claim in respect of the costs order was unsustainable as
the applicant had not alleged that she had been ordered to pay these costs.
According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court rejects the vast
majority of the claim for anticipated costs as, following the submission of her
written submissions, any significant costs were not “necessarily” incurred. It
further considers the solicitors’ fees claimed in respect of work done to be
excessive having regard to the fact that the applicant’s written observations
were submitted by counsel. Taking into consideration the sum of EUR 850 awarded
by the Council of Europe by way of legal aid, it thereforefinds it reasonable
to award the sum of EUR 4,000 for the proceedings before the Court. It further
considers that in the event that the costs order awarded by the Court of Appeal
is enforced against the applicant, these costs should be reimbursed by the
Government.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Declares the application admissible;
2. Holds that there has been a violation of Article 8
of the Convention;
3. Holds that there is no need to examine the
complaint under Article 14 taken together with Article 8of the
Convention;
4. Holds
(a) that the respondent State is to pay the
applicant, within three monthsfrom the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into pounds sterling
at the rate applicable at the date of settlement:
(i) EUR 4,000 (four thousand Euros) in respect of
non-pecuniary damage;
(iii) EUR 4,000 (four thousand Euros),inclusive of any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points; and
(c) that in the event that the costs order awarded
by the Court of Appeal against the applicant on 12 December 2007 is enforced
against her, these costs should be reimbursed by the Government;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 18 September
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Lech Garlicki
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of Judge De Gaetano is
annexed to this judgment.
L.G.
F.A.
SEPARATE OPINION OF JUDGE DE GAETANO
My only reservation in this case is
with the principle as set out in the second sentence of paragraph 65. This
sentence is a verbatim reproduction of what is found in § 50 of McCann
and in § 68 of Kay (the sentence was slightly modified, but not in substance, in § 43 of Paulić). However, all the cases quoted in support
of the principle as thus formulated (including, indirectly,Connors) are cases where the landlord was either the Government or a local authority.
None were cases where the landlord was a private individual. In my view while
it is perfectly reasonable to require that an eviction or repossession notice
issued by the Government or by a local authority – both of which are normally
under a public law obligation to provide accommodation for people within their
jurisdiction – or possibly even by a private entity in receipt of public funds, should be capable of being challenged on the grounds of proportionality, when the landlord is
a private individual the tenant’s right should in principle be limited to
challenging whether the occupation – tenancy, lease, encroachment concession, et cetera – has in fact come to an end according to law. In this latter case the
proportionality of the eviction or repossession in light of the relevant
principles under Article 8 should not come into the equation. This is not to
say, of course, that the Government may not, by legislation, impose restrictions on the use of the property by the landlord upon or after the termination
of the occupancy, from which restrictions the last tenant or occupant might
even benefit (see, by way of analogy,James and Others v the United Kingdom, no. 8793/79, 21 February 1986; Hutten-Czapska v. Poland, [GC] no. 35014/97, 19 June 2006); but this is a totally different issue from what is being proposed in the second
sentence of paragraph 65.
As the late Professor A. L. Goodhart
said, ‘The principle of a case is not to be found in the reasons given in the
opinion’; it should, instead, be found by taking account of the facts treated
by the judge as material, and his decision based on those facts.
It is precisely to prevent what we have said in the second sentence of
paragraph 65 from being extrapolated to a different context that I would
have preferred that the principle should have been qualified or otherwise
restated.
