Bjedov -v- Croatia [2012]

Bjedov v Croatia - is the European Court of Human Rights moving towards providing a substantive right to a home?

 

In the recent case of Bjedov v Croatia before the European Court of Human Rights (42150/09 29th May 2012), a Croatian woman was granted a right to purchase her rented accommodation on the basis of her right to protection of her home under Article 8 ECHR. The ruling was made in the applicant’s favour despite her occupancy being illegal, and despite a counterclaim taken by the relevant local authority, seeking her eviction.


This case is perhaps the strongest statement yet in a sustained line of jurisprudence from the European Court of Human Rights over recent years providing that the concept of a “home” for the purposes of Article 8 ECHR extends not just to premises which are lawfully occupied, but also to properties that individuals occupy illegally, provided the person has “sufficient and continuous links with a specific place” (Bjedov, at paragraph 57).


The effect of the Bjedov ruling is that the ECHR definition of the “home” and the protections surrounding such are put on a higher pedestal than legal entitlements and rights attaching to ordinary property. An individual’s right to protection of one’s home for the purposes of Article 8 ECHR looks beyond the legally correct proprietary interest of the premises, but factors in the circumstances, concerns and well-being of the individual whose rights under the Article have allegedly been breached.


Arguably, this is contrary to the recent ruling of McKechnie J in the Irish Supreme Court in the case of Dublin City Council v Gallagher [2012] IESC 18. Here, the judge rejected an argument based on Article 8 ECHR challenging section 62 of the Housing Act 1966 on the basis that the applicant never had a proprietary estate or interest in the property. Could the principles behind the Bjedov judgment be used to counter the findings of the Supreme Court?


Furthermore, the activist and principled sentiment behind the approach of the European Court of Human Rights in Bjedov may suggest that the Court could be moving towards considering an expansion of Article 8 ECHR to facilitate a right to be provided with a place called “home”, either universally as a right for all citizens, or in a set range of circumstances of particular need.


Article 8 ECHR has in fact already been held to necessitate the provision of housing on specific grounds, such as in instances where an individual is seriously ill, as in Marzari v Italy (36448/97, 4th May 1999), and more recently on the significantly expansive ground of “preserving the physical and psychological integrity of the individual.” The latter ground was used in a ruling of the UK High Court earlier this year, precluding the State from deporting a Portuguese national, and instead requiring State services to provide suitable accommodation and care (R, De Almeida v Royal Borough of Kensington & Chelsea) [2012] EWHC 1082, 27th April 2012.


Could this continually activist line of judicial reasoning, typified in Bjedov be further extended to suggest a substantive right to housing in the future?

 

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