Guide on Article 8 of the Convention – Right to respect for private and family life
436. With regard to the scope of the State’s margin of appreciation in this area, particular significance has to be attached to the extent of the intrusion into the applicant’s personal sphere (Connors v. the United Kingdom, § 82; Gladysheva v. Russia, §§ 91-96). Having regard to the crucial importance of the rights guaranteed under Article 8 to the individual’s identity, selfdetermination, and physical and moral integrity, the margin of appreciation in housing matters is narrower when it comes to the rights guaranteed by Article 8 compared to those in Article 1 of Protocol No. 1 (ibid., § 93). 437. The Court will have particular regard to the procedural guarantees in determining whether the State has exceeded its margin of appreciation when defining the applicable legal framework (Connors v. the United Kingdom, § 92). It has held, inter alia, that the loss of one’s home is a most extreme form of interference with the right to respect for the home (see for a demolition, Ivanova and Cherkezov v. Bulgaria, §§ 52-54). 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 the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right of occupation has come to an end (McCann v. the United Kingdom, § 50). This principle has been developed in the context of State-owned or socially-owned accommodation (F.J.M. v. the United Kingdom (dec.), § 37 with further references therein). However, a distinction has been drawn between public authority landlords and private landlords to the effect that the principle does not automatically apply in cases where possession is sought by a private individual or enterprise (§ 41). In particular, where possession is sought by a private individual or body, the balancing of the parties’ competing interests can be embodied in domestic legislation which makes it unnecessary for a tribunal to weigh up those interests again when considering a claim for possession (§ 45). 438. According to Ivanova and Cherkezov v. Bulgaria, given that the right to respect for one’s home under Article 8 touches upon issues of “central importance to the individual’s physical and moral integrity, of maintenance of relationships with others and a settled and of a secure place in the community”, the balancing exercise under that provision in cases where the interference consists of the loss of a person’s only home is of a different order, with particular significance attaching to the extent of the intrusion into the personal sphere of those concerned. This can normally only be examined on a case by case basis. The mere possibility of obtaining judicial review of the administrative decision causing the loss of the home is thus not enough: the person concerned “must be able to challenge that decision on the ground that it is disproportionate in view of his or her personal circumstances” (ibid., see § 53 which set out the factors likely to be of prominence in this regard).
1. Property owners 439. Where a State authority is dealing with a bona fide purchaser of property that had been fraudulently acquired by the previous owner, the national courts cannot automatically order eviction without examining more closely the proportionality of the measure or the particular circumstances of the case. The fact that the house is repossessed by the State, and not by another private party whose interests in that particular flat would have been at stake, is also of particular importance (Gladysheva v. Russia, §§ 90-97). 440. It will sometimes be necessary for a member State to attach and sell an individual’s home in order to secure the payment of taxes due to the State. However, these measures must be enforced in a manner which ensures that the individual’s right to his or her home is respected. In a case concerning the conditions of an enforced sale at auction of a house, to repay a tax debt, the Court found a violation because the owner’s interests had not been adequately protected (Rousk v. Sweden, §§ 137-142). With regard, more generally, to reconciliation of the right to respect for one’s home with the enforced sale of a house for the purposes of paying debts, see Vrzić v. Croatia, § 13.
European Court of Human Rights
102/161
Last update: 31.08.2021
