Guide on Article 8 of the Convention – Right to respect for private and family life
441. The obligation to seek a licence to occupy a house owned on an island, in order to prevent overpopulation of the island, is not in itself contrary to Article 8. However, the proportionality requirement is not satisfied if the national authorities fail to give sufficient weight, inter alia, to the particular circumstances of the property owners (Gillow v. the United Kingdom, §§ 56-58). 442. The Court has examined the question of the imminent loss of a house following a decision to demolish it on the grounds that it had been built without a permit in breach of the applicable building regulations (Ivanova and Cherkezov v. Bulgaria). The Court mainly examined whether the demolition was “necessary in a democratic society”. It relied on the judgments it had delivered in previous cases in which it had found that proceedings to evict from a house had to comply with the interests protected by Article 8, the loss of one’s home being a most extreme form of interference with the right to respect for the home, whether or not the person concerned belonged to a vulnerable group. In concluding that there had been a violation of Article 8 in this case, the Court based itself on the finding that the issue before the national courts was only that of illegality and they had confined themselves to examining that question, without examining the potentially disproportionate effect of enforcement of the demolition order on the applicants’ personal situation (ibid., §§ 49-62). 443. The Court has also held that where a State adopts a legal framework obliging a private individual to share his or her home with persons foreign to his or her household, it must put in place thorough regulations and necessary procedural safeguards to enable all the parties concerned to protect their Convention interests (Irina Smirnova v. Ukraine, § 94).
2. Tenants 444. The Court has ruled on a number of disputes relating to the eviction of tenants (see the references cited in Ivanova and Cherkezov v. Bulgaria, § 52). A notice to quit issued by the authorities must be necessary and comply with procedural guarantees as part of a fair decision-makingprocess before an independent tribunal complying with the requirements of Article 8 (Connors v. the United Kingdom, §§ 81-84; Bjedov v. Croatia, §§ 70-71). It is insufficient merely to indicate that the measure is prescribed by domestic law, without taking into account the individual circumstances in question (Ćosić v. Croatia, § 21). The measure must also pursue a legitimate objective and loss of the home must be shown to be proportionate to the legitimate aims pursued, in accordance with Article 8 § 2. Regard must therefore be had to the factual circumstances of the occupant whose legitimate interests are to be protected (Orlić v. Croatia, § 64; Gladysheva v. Russia, §§ 94-95; Kryvitska and Kryvitskyy v. Ukraine, § 50; Andrey Medvedev v. Russia, § 55). 445. The Court has thus decided that a summary procedure for eviction of a tenant that does not offer adequate procedural guarantees would entail a violation of the Convention, even if the measure was legitimately seeking to ensure due application of the statutory housing regulations (McCann v. the United Kingdom, § 55). Termination of a lease without any possibility of having the proportionality of the measure determined by an independent tribunal was held to infringe Article 8 in cases where the landlord was a public body (Kay and Others v. the United Kingdom, § 74). In cases where the landlord was a private individual or body, this principle did not apply automatically (Vrzić v. Croatia, § 67; F.J.M. v. the United Kingdom (dec.), § 41). Furthermore, continuing occupation of a person’s property in breach of an enforceable eviction order issued by a court after finding that the occupation in question was illegal infringes Article 8 (Khamidov v. Russia, § 145). 446. In its judgment Larkos v. Cyprus [GC], the Court held that offering differential protection to tenants against eviction – according to whether they are renting State-owned property or renting from private landlords – entailed a violation of Article 14 taken in conjunction with Article 8 (§§ 3132). However, it is not discriminatory to make provisions only for tenants of publicly owned property to purchase their flat, with tenants of privately owned flats which they occupy being unable to do so (Strunjak and Others v. Croatia (dec.)). Moreover, it is legitimate to put in place criteria according to
European Court of Human Rights
103/161
Last update: 31.08.2021
