Tuesday 1 June 2010

Three Property Rights Judgments

Last week, the European Court of Human Rights issued a number of important judgments which all evolve around the protection of property. In Sarica and Dilaver v. Turkey (available only in French), the Court held that the widespread practice in Turkey of de facto expropriation by the state represented a structural problem and was contrary to the Convention. This practice enabled the Turkish authorities to occupy property without any formal declaration of transferring ownership. They could also change the prospective use of the property irreversibly. The practice forced people to start Court proceedings in order to have such occupation of land quashed or in order to receive compensation. Under article 46 ECHR (binding force and execution of judgments) the Court indicated that Turkey should also take general measures in order to make the process of expropriation less unforeseeable and arbitrary and to secure compensation. Turkey should also actively discourage de facto expropriation by measures of deterrence and by holding the people responsible to account. Reforms in this area are thus now called for in Turkey.

The other two cases relate to a post-conflict context. In Saghinadze and others v. Georgia, the Court ruled on the eviction of an internally displaced person (IDP). The applicant, a Georgian who fled the Georgian province of Abkhazia during the armed conflict in the early 1990s, was given the use of a cottage in Georgia's capital Tbilisi by the Ministry of the Interior, by which he was employed. With his family he build up a new life there. Following the 'Rose Revolution' in Georgia in 2003, the applicant led a number of investigations into criminal cases and also submitted information to the authorities on abuse of power within the state apparatus. Apparently, he stepped on someone's toes a bit too hard, since he and his family were evicted from the cottage in 2004 by agents of the special forces. The Court found that both articles 8 (right to respect for the home) and Article 1 of Protocol 1 (protection of posessions) had been violated. The eviction had been unlawful under Georgian law and contrary specifically to the protection given to IDPs. In a particular example of very intense review, the European Court held that the Georgian Supreme Court had contradicted its on case-law in this matter. In para. 16 the Court noted on this that "where such manifestly conflicting rulings stem from the same jurisdiction, and no reasonable explanation is given for the divergence, such rulings smack of arbitrariness." The rule of law thus clearly also applies to the reasoning (or lack thereof) of national judgments themselves. One may note, in passing, that the Court lauds Georgia's inclusion in its laws of protection for IDPs in line with UN standards, but condemns its lack of application in the practice of this case.

Finally, the case of Dokic v. Bosnia and Herzegovina concerns the case of a lecturer at a military school who tried in vain to repossess his flat in Sarajevo which he had left at the start of the Bosnian war. He currently lives in Serbia and has both the Bosnian and Serb nationalities. Serbia intervened as a third party in the case. Interestingly, the Court considered it unnecessary to establish whether Dokic had been forced to flee Sarajevo, but noted that he was neither a refugee nor an IDP. This was irrelevant for the reasoning of the Court however, which in essence did not deal with the case as a war-related property issue (although that was part of the factual context), but rather decided within its general and established case-law on property rights. It held that Dokic was in essence treated differently than others on the basis of his ethnicity (Serb), even if the applicable law seemed neutral. In addition, the reasoning of the state that the housing was needed to accommodate other people in need was not supported by evidence (military flats were allocated to war veterans, but this was done irrespective of their housing situation or income). In addition, the applicant had not received a comparable occupancy right in Serbia as he had held in Bosnia - there was thus no equivalent alternative (as Bosnian law required). Finally, the compensation offered was too low in the view of the Court. Thus it concluded that Article 1 of Protocol 1 (P1-1) had been violated.

The European Court more strictly scrutinised the state's arguments than the former Bosnian Human Rights Commission had done. In deciding on the same case, the Commission in 2006 found no violation of P1-1. See the judgment (in Bosnian) here.

Finally, for those interested in housing rights (like myself) it is notable that the Court held that the case did not disclose an interference with the right to respect for the home (Art. 8 ECHR), since Dokic had shown no intention of returning to his former flat. This is an application of principles established in Demopoulos v. Turkey earlier this year and is an opposite situation (but same application) of older case law which stressed the need for continuing links with the dwelling at issue (e.g. Gillow v. United Kingdom).

See also the informative post(s) on this case here, by experts who have worked on housing restituion in practice in Bosnia.