Since this summer, the European Court of Human Rights (ECtHR) seems to give new hopes to social rights defenders. Although there is an expressly provided European right to housing, it is to be found in Article 31 of the Social Charter of the Council of Europe, i.e. a soft-law instrument. In the case-law of the ECtHR, housing is notably framed by two opposite rights of the European Convention of Human Rights and Fundamental Freedoms (ECHR): Article 8, protecting the right to private and family life, and Article 1 Protocol No. 1, protecting the right to property.
Two recent decisions relating to housing, each concerning one of these provisions, retained the attention of housing professionals in Europe. In Nobel against Netherlands (application no 27126/11, 2nd July 2013), the Court offered a new analysis concerning the extent to which a State may limit the right to property in order to protect tenants, declaring three landlords’ joint complaints inadmissible. More strikingly in Winterstein and others against France (application no 27013/07, 17th October 2013, not translated from French yet), without initiating a positive right to housing, it unanimously underlined the obligations that a domestic court must fulfill, according to European case law, before validating a judgment for families’ eviction. This post seeks to raise attention to these cases as a possible evolution of the European frame of the right to housing.
Nobel v Netherlands (application no 27126/11, 2 July 2013)
On the 2nd July 2013, with the case Nobel v Netherlands, the Chamber presided by Josep Casadevall (Third Section) accepted regulation of rental incomes by the State, even where the regulating measures can lower them, and declared the three landlords’ requests inadmissible. This first part points out the reasons for their application and the reasoning of the Chamber.
Unsurprising landlords’ complaint
In the Netherlands, landlords and tenants can apply before the Rent Board for a ruling on the fairness of the rent, although in principle freedom of agreement prevails. This Board rules according to a point-rating system fixed by a ministerial decree, aiming at assessing the value of an accomodation depending on different criterias, and establishing a limit to the yearly increase of the rent. Following decisions in favour of their tenants from the Rent Board, three landlords complained under Article 1 of Protocol No. 1 to the Convention. This article states:“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
What is interesting is that the applicants actually denounced a violation of their right to property and to peaceful enjoyment of property at different levels. Two of them had been barred from increasing the rent of their property by more than 1,2 %, and one had been required to lower the rent after his tenant had requested it before the Rent Board.
According to the landlords, this provision barred the Netherlands from reducing their rental profits against their will. The complaint thus raises the question of how far the State is entitled to regulate rents under paragraph 2 of Article 1 Protocol No. 1.
To hold its ruling, the Chamber first recalled the three rules contained in Article 1 of Protocol No. 2:
- the general principle of peaceful enjoyment of property (in light of which the following rules are to be understood);
- the requirement to impose conditions for deprivation of possessions;
- the right of the contracting states to control the use of property in accordance with the general interest or to secure contributions or penalties.
The Chamber admitted that the rules at issue do constitute an interference even though the applicants continue to dispose freely of their property and to receive rents from it, because they restrict the “applicants’ right freely to negotiate a level of rent for their properties”. However, the interference was considered to fall into the category of the “control of the use of property” by the State. Therefore, a review of the lawfulness, pursuance of a legitimate aim in the general interest, and proportionality (“strike of a fair balance” by the State) of the interference is lead. The analysis of the pursuance of a legitimate aim and of the strike of a fair balance are at the heart of the decision. Emphasis must be added on paragraph 34:
“Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the “general” or “public” interest. The notion of “public” or “general” interest is necessarily extensive. In particular, spheres such as housing of the population, which modern societies consider a prime social need and which plays a central role in the welfare and economic policies of Contracting States, may often call for some form of regulation by the State. In that sphere decisions as to whether, and if so when, it may fully be left to the play of free market forces or whether it should be subject to State control, as well as the choice of measures for securing the housing needs of the community and of the timing for their implementation, necessarily involve consideration of complex social, economic and political issues“.
The “social protection of tenants” clearly appears at the social policy aim at issue (point 35). This is not a novelty, as the Court already used this expression and a similar wording than paragraph 34 to identify a legitimate aim in similar contexts, notably in 2006 . It seems to be the first time, however, that these words were used in a case where no infringement of Article 1 Protocol no. 1 was ultimately found. The Court then recognised the wide margin of appreciation available to the legislature in implementing social and economic policies, an expression usually used to recognise the right of the State not to grant a right to housing, in respect of the right to property.
As for the proportionality of the measures (paragraphs 36-40), i.e. the fair balance to strike between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights, the Court’s reasoning followed two steps. First, the Chamber noted that these requirements would not be fulfilled if the claimants would “not receive a decent profit from their rental income (…) above the level of property tax chargeable on the flats”. It further added that “there is no indication that the rental income does not cover the necessary maintenance costs and taxes”. This reasoning lead to the conclusion that nothing in the present case showed that the applicant would have to bear an excessive and disproportionate burden.
More surprisingly, the Court added that even for the applicant who may actually receive an insufficient pay in consideration of the maintenance costs and taxes relating to the house, it did not make the decision of the Rent Board disproportional, as long as “the applicant willingly bought the building, aware of the amount of rent being paid” by the present tenant (paragraph 39). In the negotiation of the price, the person buying a building in order to rent it has to acquire knowledge of the restrictions imposed by his domestic law as to the maximum amount of rent chargeable for a certain standard and the maximum of yearly rent increase allowed. Therefore, the interference can be seen as justified under the second paragraph of Article 1 Protocol No. 1 of the Convention. The new landlord was supposed to have collected enough knowledge of domestic law while bargaining to acquire the accommodation(s) he wished to rent. In short, the impossibility to cover maintenance costs and taxes relating to the house is not sufficient for a landlord to complaint for violation of his or her right to property; he also bears the burden of responsibility if he willingly acquires an inhabited accommodation.
The Court’s conclusion is clear: national regulating measures protecting tenants do not violate Article 1 Protocol No. 1, should they result in lowering rents, as long as necessary maintenance costs and taxes are covered. Furthermore, even when these costs are not met, the State cannot be held responsible when a landlord deliberately acquired an inhabited property and knew about the rent paid by the current tenant. Such a judgement, although it makes no reference to any provision of the Social Charter, is fully consistent with Articles 30 and 31. Three months later, the decision Wintenstein and other against France expressly quoted the Social Charter and the Social Committee relating to housing rights, on the basis of the other fundamental provision relating to housing.
Winterstein and others v France (application no. 27013/07, 26th October 2013)
On the 17th of October 2013, with Winterstein and others v France, the Chamber presided by Mark Villiger (Fifth Section) showed a new approach of housing right and a higher regard to the Social Committee, among many other interesting features. This case concerned the other major provision of the Convention susceptible of being used to support housing rights: Article 8, ensuring the right to private and family life.
A group of traveller families complained against the eviction orders following requests of the municipality where the land that they had occupied for 5 to 30 years was located. On request of the local mayor, the domestic courts had issued orders to evict the families with penalties for non-compliance. Although the they were suddenly required to leave, only four among 26 families were provided with appropriate social accommodation. The families and the French organisation ATD Quart Monde applied before the ECtHR under Articles 3 (prohibition of torture), 8, 14 (prohibition of discrimination) and 18 (limitations on restrictions on rights) of the Convention. The Court observed that the French courts, despite acknowledging the lack of urgency and of any manifestly unlawful nuisance from the part of the traveller families, had not considered the long period for which the applicants had been settled, the corresponding period of toleration of municipal authorities’, the right to housing, the provisions of Articles 3 (prohibition of torture and degrading treatment or punishment) and 8 of the Convention, and the Court’s case-law.
Growing authority of the European Committee on Social Rights
Most interestingly, the Court expressly and precisely referred to decisions of the European Committee on Social Rights (request no 33/2006) held in 2007, the requesting organisation ATD Quart Monde having brought a complaint against France for non compliance with its obligations towards people living in great poverty (paragraph 80 onwards). At the time, the organisation was already denouncing violations of the right to housing (Article 31 of revised Social Charter), the right to protection against poverty and social exclusion (Article 30), the right of the family to appropriate social, legal and economic protection (Article 16) and the principle of non-discrimination (article E), including examples such as the families applying in the present case. It noted that the Committee held that France violated Article 31(2) for its legislation and corresponding practice did not offer the required guarantees regarding re-housing. Considering the risk that the eviction would durably lead to homelessness, the absence of any guarantee for the applicants to be able to obtain stable and affordable re-housing before the date of eviction violated Article 31(2). The Court then recalls that the Committee also held a violation of Article 31(3) of the Social Charter among other international soft law instruments, because of the obvious insufficiency of affordable housing opportunities for people in difficulty. The Court referred to two other decisions held by the Committee in 2009 and 2012 with the same conclusion than in 2007. Of course, it was not the first time that the ECtHR referred to Committee’s conclusions (although only around 40 cases referring to the Committee can be found on the official ECtHR case-law website, regarding housing issues ), but in the present case, Strasburg analyses and quotes whole parts of the Committee’s reasonings, which happens far more rarely .
ECHR ensuring its authority on housing issues
Following its strict traditional jurisprudence regarding applications of organisations under Article 34, the ECtHR denied the quality of victim to ATD Quart Monde, the latter being not directly affected by the contested measures and its request is therefore inadmissible, whereas all of the individual victims’ applications were examined. Regarding the interference by the State, the Court followed its established case-law , recalling that the autonomous notion of “home” under Article 8 of the Convention is independent from the legality of the occupation in domestic law and is determined by the existence of sufficient and continuous links with a particular place: the applicants definitely have such links, having settled on the land for 5 to 30 years. In addition, the Chamber rejected the argument of the French Government alleging that there has been no interference as long as the judicial decision of eviction was not executed. The decision itself was definitely an interference because it did affect the applicants; it was an order with fines in case of non-compliance, not suspended by the application before the ECtHR. It was, moreover, supposed to be applied to about hundred people whose identity as travellers is partly made of their traditional living in caravans, which means that their social and familial lives were necessarily going to be disrupted. The interference is lawful, as it complies with French legislation, and legitimate, as the occupied zone is a legally protected natural zone on which accommodations must comply with a set of particular rules protecting the local natural environment. But the interference still had to be “necessary in a democratic society”, i.e. to answer to a pressing social need, justified by relevant and sufficient grounds, and proportionate. And here are new exciting points: the Court recalled the similarity of the case with its established Yordanova jurisprudence, according to which years of tolerance from the part of the national authority barred them from suddenly evicting a community occupying a land unlawfully. The national authorities proved that they had not taken the jurisprudence of the ECtHR into account by ignoring the repeatedly alleged argument of the applicants about the long tolerance they had benefitted from until then. As no national court had examined this point as relevant (one of the national courts actually denied the existence of any legal result of the long-lasting tolerance of the town and the corresponding previous occupation by the traveller community), it follows that the proportionality of the measure was not examined. This absence of examination of the proportionality of the interfering measures enabled the Chamber to hold a violation of Article 8 due to a lack of adequate safeguards. Being given these circumstances of very long occupation of the land, the Court clearly denounced the lack of consideration of the consequences of the eviction, linking it with the absence of adequate proposals for re-housing. The situation of precarity of all of the members of the community of travellers showed the lack of consideration of these elements by the French authorities, as only four of all the families had been provided with adequate new housing opportunities. Due to the non-consideration of the proportionality of the measure by French courts, the Court concluded by holding a violation of Article 8 for all applicants.
The Winterstein decision does not entrench unlawful occupation of travellers; it underlines the obligation of national authorities to take into account the length of the occupation, the previous tolerance of domestic authorities, and the ECtHR case-law regarding housing rights. The applicants whose application for replacement housing on family lands had not been taken into account despite their identity as travellers, were also considered victims of a violation of Article 8. As the application was also brought under Article 14, the Court could have chosen to underline the issues of racism and discrimination of traveller communities through a separate analysis, a point denounced by the dissenting opinion of Judge Power-Forde. The Court deliberately preferred to strengthen its case-law on housing.
Cécile Bénoliel, LLM Student
Interested? You want to read the cases? Of course you do!
See Nobel on:
and Winterstein on:
 See Hutten-Czapska v Poland (application no. 35014/97, 19th June 2006, see point 160) and Ghigo v Malta (application no. 31122/05, 26th September 2006, see point 58).
 See for example Yordanova and others v Bulgaria, no 25446/06, 24th Avril 2012, point 73.
 In this regard, the only precedents seems to be Sidabras and Dziautas v Lithuania, joint applications nos 55480/00 and 59330/00, 27th July 2004, and Vejdeland and others v Sweden, application no 1813/07, 9th February 2012.
 McCann v United Kingdom, no. 19009/04, 13th May 2008; Prokopovitch v Russia, no. 58255/00, 18th November 2004; Yordanova and others, cited above.