Abstract
This article explores how the right to respect one's home under Article 8 of the European Convention on Human Rights would apply in the context of housing and social control. After explaining the connections between social control, housing, and human rights, it analyzes the selected case law of the European Court of Human Rights on Article 8 in certain cases concerning housing with a view to understanding the protection asymmetries inherent to the provision, and what that would entail for the employment of social control in the sphere of housing. These protection asymmetries are identified between, first, the homeless/inadequately housed and those with a home, and second, with regard to the latter, between lawful occupiers and unlawful occupiers. The examination is conducted, first, by analyzing the Court's interpretation of the definitional scope of Article 8 and its exclusion, in principle, of the provision of housing therefrom, and second, by looking at the application of Article 8 in public eviction cases.
Keywords
Introduction
Housing needs to be distributed to many individuals, families, and communities based on different perceptions of it in diverse political, social, and economic contexts amid resource considerations, while the simple fact remains that everyone needs housing. This dynamic of absolute need, coupled with the discretion exercised in the housing sphere from regulation to implementation, turns housing into a power-ridden ground. Therefore, housing is susceptible to becoming a means by which people's lives and behavior are controlled, shaped, and forced to change (Watts et al., 2018). How human rights law may configure such uses of social control in the field of housing is a question with no straightforward answer.
By turning its attention to the European human rights law, this article explores how the right to respect one's home under Article 8 of the European Convention on Human Rights (ECHR, the Convention) would apply in the context of housing and social control. The article first explains the connections between housing, social control, and human rights, thus clarifying the rationale behind this analysis. Thereafter, it explains the reasons for analyzing this issue through ECHR Article 8 and the selection of the relevant case law. Then, based on the European Court of Human Rights’ (ECtHR, the Court) reasoning, the article shows the weak protection offered by Article 8 to homeless/inadequately housed persons in terms of access to housing. It advances that the deprivation of those who are most vulnerable to state power from the protection of Article 8 in this respect leaves them vulnerable to social control. The article subsequently turns its attention to those who already have a home and shows how Article 8 would be more effective in protecting those individuals against social control measures in principle as demonstrated by the Court's case law on public evictions, 1 thus identifying the first protection asymmetry. It then demonstrates, however, that the Court's interpretation of Article 8 reflects a second asymmetry in the protection that would be offered to lawful and unlawful occupiers, to the detriment of the latter. Exploring the protection asymmetries of Article 8 through the lens of housing and social control in this manner, the article offers an analysis of the double standards of the ECHR's individualistic rights paradigm in the social arena.
Housing, Social Control and Human Rights: Points of Convergence
Social control is defined as “the organized ways in which society deploys various modes of power in responding to behavior and/or people it regards as in some way problematic, spanning criminal justice responses to the enforcement of norms via social interactions involving praise or blame” (Johnsen et al., 2018: 1109). As such, social control measures are tools for exercising power over certain individuals or groups (Watts et al., 2018: 237). This power can be exercised by employing different aspects of social policy as its means, from conditionality in access to welfare (Deacon, 2004; Watts et al., 2018: 236) to criminal law responses (O'Sullivan, 2012). 2 Social control treads a thin line between, on the one hand, the need to guarantee social order and, on the other hand, the exertion of inappropriate power—particularly over marginalized groups such as the homeless, the inadequately housed, ethnic minorities, and so on. As such, it should be approached critically and with caution. This is not to reduce social control to a partisan debate between the good and the bad, a tendency aptly criticized by Johnsen et al. (2018: 1107, 1120), but to emphasize the complexity and the challenging nature of social control particularly as a tool of state governance.
Given the significance of housing in peoples’ lives, and its intricate relationship with the state, the market, and the law (Bengtsson, 2012: 323; Domurath and Mak, 2020: 1191), housing constitutes a fertile ground for exercising various forms of social control over people. Indeed, the literature discussing the type, scope, and legitimacy of various homelessness responses in the form of social control measures attests to that (Fitzpatrick et al., 2014; Johnsen et al., 2018). However, housing and social control do not intersect only when it comes to homelessness. For example, access to housing, especially in times of housing shortage or due to certain discriminatory and/or prejudicial practices, can be made conditional on requirements such as times of entry, limitations on visitors, etc. (Castles and Kosack, 1985: 260–262; Cave, 2023). Such requirements can turn shelters into a means of social control over women rather than helping them gain control over their lives (Hartnett and Postmus, 2010). Social housing can become a means by which “antisocial behavior” is controlled (Fitzpatrick et al., 2014: 1), and the types of tenancies offered to poorer households can be used as a way to “discipline” them (Fitzpatrick et al., 2014: 3; Fitzpatrick and Watts, 2017). Households can be evicted, and communities were broken up, to prevent the formation of so-called “parallel societies” in neighborhoods predominantly occupied by generations of immigrants (Bailey-Morley and Kumar, 2022: 9).
Considering that power is the building block of social control, thinking of housing and social control opens an important line of inquiry into human rights law. One of the human rights’ central aims has always been to ensure the effective protection of individuals against arbitrary state power. However, this protection is in most cases not absolute, and human rights law allows states to adopt various means of organizing the social order under their jurisdiction. The striking of a balance between individual and collective interests becomes necessary in most instances, so as not to privilege the individual unduly at the expense of the collective and vice versa. This need is directly reflected in the text of many human rights provisions, as very well exemplified by Article 8 which offers rights-protection in its first paragraph and clarifies the limits of that protection in its second paragraph. Then, the justifications offered for striking that balance in a particular way become important for understanding how power is exercised by the state, and how human rights law responds to that. At the same time, human rights law has come to be interpreted as requiring not only that states abstain from arbitrary conduct that encroaches upon individuals’ rights, but that they also ensure effective protection against the harmful conduct of both the various organs and agents of the state and other private parties. This means that human rights law requires not only a passive, but also an active state, and demands the appropriate exercise of state power in certain instances to ensure rights-protection. These obligations translate into the well-known negative/positive obligations typology (Stoyanova, 2023: 8–16). Human rights law, then, is also mainly preoccupied with power, with a view to both acts and omissions. It deals with the exercise of state power, or lack thereof, through the concept of discretion.
Against this background, social control crystallizes the tension between state governance and individual rights protection in a challenging way by raising questions that are familiar to the human rights lawyer: when is it appropriate for states to adopt social control measures? Which factors should be considered when examining that question? Should human rights law be more deferential toward states, or should it be stringent in the face of social control measures? When housing is added to the equation, answering these questions becomes more complicated due to the twofold significance of housing: as a social and individual good central to decent human existence (Farha and Schwan, 2021: 399), and on account of its intimate connection to social power structures (Marcuse and Madden, 2016: 89). Then, the point of analyzing housing and social control through human rights law is to understand when, to what degree, and how the discretion used in the employment of social control in the housing sphere could be kept under check. Arriving at this understanding is at the core of this article. This understanding is crucial not only from a theoretical viewpoint but also considering the concrete risks posed by states’ exercise of social control, especially over marginalized groups, in relation to housing as a basic necessity of life.
Reasons for Focusing on ECHR Article 8 and the Selection of Case Law
The right to adequate housing that finds its expression in international human rights law through Article 11(1) of the International Covenant on Economic, Social and Cultural Rights does not find itself an identical place in the ECHR. It has been consistently made clear by the ECtHR that there is no right to a home as such under the Convention (Domurath and Mak, 2020: 1195; Faulkner and McDonagh (dec), 2022: §98; Nield, 2011: 108). That said, housing does not only raise issues of provision, but a wider range of questions which pertain to different interests protected by other human rights. One such right is ECHR Article 8 which guarantees the right to respect for one's “home” (along with private life, family life, and correspondence). 3 Correspondingly, it is long established in the Court's case law that “[w]hilst the convention sets forth what are essentially civil and political rights, many of them have implications of a social or economic nature” (Airey, 1979: §26). Indeed, housing is a matter that has been frequently dealt with by the ECtHR, with many cases concerning different housing-related interests having been brought before it (Hohmann, 2013: 67; Koch, 2006: 408).
These cases certainly concern other articles besides Article 8 as well, such as Article 2 (right to life) (Saghinadze and Others, 2010), Article 3 (prohibition of torture) (Burlya and Others, 2018; Lăcătuş and Others, 2012; Menteş and Others [GC], 1997; Moldovan and Others (no 2), 2005; M.S.S. [GC], 2011), Article 6 (right to a fair trial) (Camara, 2023; Khamidov, 2007; Pibernik, 2004; Teteriny, 2005; Đukić, 2012), Article 13 (right to an effective remedy) (Jansons, 2022), Article 14 (nondiscrimination) (Bah, 2011; Karner, 2003; Larkos [GC], 1999), Article 1 of Protocol No. 1 (protection of property) (Berger-Krall and Others, 2014; Brumarescu [GC], 1999; Hutten-Czapska [GC], 2006; Immobiliare Saffi [GC], 1999; James and Others, 1986; Mellacher and Others, 1989; Rousk, 2013; Schirmer, 2004; Vrzić, 2016; Zrilić, 2013) and Article 2 of Protocol No. 4 (freedom of movement) (Garib [GC], 2017). One can examine housing and social control through some of these other provisions as well, such as Article 14, or, in more extreme cases of social control through destitution, Article 3. The reason for focusing on Article 8 in this article is that due to the nonabsolute nature of this provision as per Article 8(2), the kind of housing-related interests that arise under it generate important discussions by the Court regarding the balance between individual and collective interests, considerations to be taken into account in the assessment of whether that balance has been struck correctly, the margin of appreciation to be accorded to states in adopting socioeconomic policies, and the obligation to afford procedural safeguards in the application of specific regulations under such policies. The crux of the examination, therefore, consists of assessing an act or omission in light of various competing public and/or private interests against the background of a certain discretion granted to the state. The correspondence between the considerations that arise during the examination of Article 8 by the ECtHR and the type of questions raised by social control as articulated in section 2 makes Article 8 instrumental for placing housing and social control within the human rights law framework.
What exactly are the “housing-related interests” that the Court has come to discuss under Article 8? It is difficult to list them exhaustively; however, an overview of the Court's case law helps one identify certain patterns. For instance, the Court has frequently examined, inter alia, tenants’ interest in the protection of their secure tenancy through national legislation (Blečić, 2004), in protection against forced eviction (Jansons, 2022), summary possession by local authorities (Connors, 2004; McCann, 2008) or deprivation of home resulting from judicial sale for purposes of debt collection (Rousk, 2013; Vrzić, 2016; Zehentner, 2009). These interests often compete with public interests such as the effective implementation of building regulations (Ivanova and Cherkezov, 2016), protection of the environment (Kaminskas, 2020), urban development and beautification (Yordanova and Others, 2012), protection of the rights and freedoms of others and the economic well-being of the country (Rousk, 2013). Different private interests also compete amongst each other (Belchikova (dec), 2010: §2; F.J.M (dec), 2018: §§42–43; Vrzić, 2016: §67; Zrilić, 2013: §63). Interestingly for this analysis, social control can, too, enter the equation as part of states’ legitimate aim in interfering with Article 8 (Connors, 2004). I must note, however, that I have not come across any case that has been explicitly discussed in terms of housing and social control, although the Court examined this implicitly in a few cases concerning the Roma, gypsies, 4 and travelers, as will be shown below. The cases examined in this article are therefore not strictly about social control; as noted earlier, they are mainly about housing. However, since the aim here is to understand how Article 8 would apply in the context of housing and social control, the lack of specific case law on this matter does not pose a problem. Indeed, only through an understanding of the Court's approach to cases concerning housing would it be possible to foresee the implications of Article 8 for housing and social control in general.
In their investigation of the legitimacy of various social control measures employed against homeless people, Watts et al. (2018) develop a framework for examining the legitimacy of such exercises of power to bring more nuance to the discussions surrounding social control. Interestingly, the framework they propose has striking similarities to the reasoning employed by the ECtHR in examining whether an interference with Article 8 complies with the Convention. According to Watts et al., the legitimacy of deployment of power should be examined through the following criteria:
whether it serves a legitimate purpose, whether it allows for a voluntary response, by its effects on the character of the parties involved, whether it is an effective, proportionate, and balanced means to pursue the
(legitimate) purpose(s) for which it is deployed (2018: 237–238, 244–245).
As will be explained below, when a claim of violation of Article 8 comes before the Court, if it finds the claim admissible, it conducts a three-staged analysis by looking at (1) whether the interference is in accordance with the law, (2) whether it pursues a legitimate aim, and (3) whether it is necessary in a democratic society, that is, responds to a “pressing social need” and is proportionate to the legitimate aims pursued (Ghailan and Others, 2021: §56). The similarity between, on the one hand, the elements of the framework above, which is proposed for examining the ethicality of social control measures, and, on the other hand, the examination criteria that would be used by the ECtHR when assessing the compatibility of social control measures with the ECHR makes the following inquiry further pertinent and interesting.
To find the cases that guided this inquiry, I used four different tools: scholarly writings, the cases themselves, the HUDOC database, and the Article 8 case law guide (CoE, 2021), respectively. After identifying an initial group of cases through scholarly writings and the cases found therein, I used the HUDOC database to check that my findings matched the database search results and to find the other cases that I may have missed. In so doing, I searched the terms “housing,” “social control,” “housing and social control,” “housing policy,” “housing policies,” “housing regulation,” and “housing regulations” first without a filter, and second by applying the filter of Article 8 in keywords. As the search term “housing” still gave too many results when the filter had been applied, I narrowed them down further by selecting English as the language (as I cannot read French) and the “key case” filter of the HUDOC database. This way, I found the remaining cases that had previously slipped my attention. To consolidate my findings, I went through the Article 8 case law guide (CoE, 2021). This way, I made a list of 82 cases, 48 out of which concerning Article 8 are referenced in this article where relevant and listed at the end. The initial list of 82 cases was instrumental in understanding the patterns in the Court's reasoning in relation to housing also beyond Article 8, which informed the choice of focusing on Article 8 as well. The specific examination of the selected case law on Article 8 helped to clarify the adjudicatory standards of the ECtHR, which was indispensable for the analysis and has accordingly been woven into the narrative below. A few cases stood out in terms of meriting specific attention in the article based on the following criteria:
whether they have started a new line of case law, whether they have significantly contributed, positively or negatively, to the case law through detailed reasoning (which is particularly valid for Grand Chamber judgments), whether they have changed the existing case law on a certain issue, the controversy that they have caused, as exemplified by the scholarly debate or the separate opinions issued by the judges.
Housing and Social Control Through the Lens of Article 8
This section examines the selected case law on Article 8 and assesses the protection asymmetries created by this provision with a view to housing and social control. The examination pays attention to the separation of the definitional and application stages of the ECtHR's reasoning (Gerards and Senden, 2009; Lavrysen, 2013: 163–164). According to this two-staged adjudication, when addressing a complaint under Article 8, the Court must first decide whether the complaint falls under the definitional scope of the provision and whether there is an interference with the right at issue (Gerards and Senden, 2009: 622). This is followed by the application stage where the Court determines whether the interference with Article 8 is justifiable under the ECHR, or whether there was a positive obligation with which the state failed to comply (Gerards and Senden, 2009: 622–625; Lavrysen, 2013: 167 ff.). Bearing this structure in mind, the section first discusses the definitional scope of Article 8 and the exclusion of the provision of housing largely out of this provision. It then turns its attention to the cases in which the applicants already have (had) a home and analyzes the Court's examination of public evictions.
No Right to Be Provided With a Home: Repercussions With a View to Housing and Social Control
What does Article 8 protect, and what does it leave out of its definitional scope, when it comes to housing? Answering this question is crucial to understand how this provision would apply in the context of housing and social control. Article 8 guarantees “respect” for three elements: home, private life, and family life. When the Court faces a claim of violation of the right to respect for one's home, it needs to first establish, as part of the definitional stage of its examination, that there is a “home” as autonomously understood in its case law (see, inter alia, Brežec, 2013: §35; Gillow, 1986: §46; Khatun and 180 Others (dec), 1998: §1; McKay-Kopecka (dec), 2006: 9; Prokopovich, 2004: §36; Zrilić, 2013: §57). According to the Court: Whether or not a particular habitation constitutes a ‘home’ which attracts the protection of Article 8§1 will depend on the factual circumstances, namely, the existence of sufficient and continuous links with a specific place. (Bjedov, 2012; Kaminskas, 2020: §42; Prokopovich, 2004: §36; Winterstein and Others [extracts], 2013: §69; Yevgeniy Zakharov, 2017: §30) [emphasis added]
5
Importantly, the right to respect one's home only protects the enjoyment of an existing residence (Leijten, 2018: 236). Time and again, the Court has clarified that “Article 8 does not guarantee a right to be provided with a home” (Burton (dec), 1996: §2; Chapman [GC], 2001: §99; Codona (dec), 2006: 10; Faulkner and McDonagh (dec), 2022: §98; Ghailan and Others, 2021: §53; Marzari (dec), 1999: §1; O’Rourke (dec), 2001: 7; Ward (dec), 2004: 6). The Court has therefore principally excluded the claims related to the provision of housing from the ECHR under the “home” dimension of Article 8.
When it comes to the “private life” dimension, however, the case law shows that the (non)provision of housing may fall under Article 8 in certain circumstances (Palmer, 2010: 233 footnote 58). Then, the right to respect for private life may serve as a better protection avenue than the right to respect one's home for those in need of housing, albeit in exceptional situations (Domurath and Mak, 2020: 1196; Leijten, 2018: 238). Indeed, according to Marzari, when the health situation of an applicant warrants the provision of a home for the protection of their private life, nonprovision might raise an issue under Article 8 (although this case was found inadmissible due to being manifestly ill-founded) (Kenna, 2008: 202–203; Palmer, 2010: 234): … a refusal of the authorities to provide assistance [in the form of adequate accommodation] … to an individual suffering from a severe disease might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such refusal on the private life of the individual …. A State has obligations of this type where there is a direct and immediate link between the measures sought by an applicant and the latter's private life …. (Marzari (dec), 1999: §1)
Without prejudice to the different conclusions reached by the Court in respect of the different dimensions of Article 8 (i.e., home, private life, and family life), it must be noted that the separation between these dimensions is generally not crystal clear (Buyse, 2006: 296; Harris et al., 2018: 503). Chapman ([GC], 2001) is a good case in point. This case concerned the planning controls which affected a gypsy's ability to establish her home in a caravan site in the United Kingdom (UK). To be clear, this was not a case concerning the provision of housing, but an interference with Article 8. However, since the reasons behind the interference were closely related to the broader issue of the availability of caravan sites for gypsies, the judgment contains important remarks by the Court about the provision of housing. The Court examined Chapman under the private life, family life and home aspects of Article 8, because it considered that the applicant's occupation of her caravan was part of her identity as a gypsy and that the planning controls at issue impacted her ability to maintain her family life in accordance with that tradition ([GC], 2001: §§73–74). Bearing in mind the definition of social control used in section 2 above, these planning controls can arguably be seen as a form of social control exercised by the UK against the Roma, gypsies, and travelers in relation to their housing arrangements, even if the Court did not label them as such. While examining whether the interference with the applicant's rights under Article 8 was justified, the Court recalled that “Article 8 does not in terms recognize a right to be provided with a home” (Chapman [GC], 2001: §99; but see Chapman [GC] Dissenting, 2001: §7). This means that the provision of housing was excluded from the scope of Article 8 without differentiating between the different dimensions of the article with the statement that: …While it is clearly desirable that every human being have a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision. (Chapman [GC], 2001: §99)
Admittedly, Chapman ([GC], 2001) is an old case. Yet, that fact alone does not make its reasoning outdated, as the Court has not repudiated the approach that it has taken in this case so far. Over the years, it continued referring to Chapman ([GC], 2001) in support of its reasoning, either to draw from the same principles (Faulkner and McDonagh (dec), 2022: §§96–97; Ghailan and Others, 2021: §§53, 65, 78, 80; Kaminskas, 2020: §§56, 59) or to differentiate a case from it (Connors, 2004: §86). However, an improvement in the Court's reasoning did occur in Yordanova and Others (2012).
9
This case concerned the Bulgarian authorities’ attempt to remove a settled Roma community from their homes unlawfully built on municipal land. This case, too, was examined as concerning private life, family life, and home under Article 8 (Yordanova and Others, 2012: §§103–105). Unlike in Chapman ([GC], 2001), however, the Court was willing to take a cautious step toward expanding the definitional scope of Article 8 in Yordanova and Others: … Article 8 does not in terms give a right to be provided with a home and, accordingly, any positive obligation to house the homeless must be limited. However, an obligation to secure shelter to particularly vulnerable individuals may flow from Article 8 of the Convention in exceptional cases. (2012: §130)
The case law shows that, for the ECtHR, housing is predominantly a field of policymaking. The Court is reluctant to engage with claims concerning the provision of housing save for exceptional circumstances and in a minimalist way. By implication, responding to homelessness or inadequate housing is a matter largely left to states. The context of how one's housing situation is affected by, or a product of, a state's policies is not necessarily considered by the Court. In a way, this is not surprising, given how the Court makes a point of focusing on the specific factual circumstances of the case before it (Chapman ([GC], 2001: §100; Faulkner and McDonagh (dec), 2022: §113). However, this lack of contextualization, which has had a bearing on the exclusion of claims concerning the provision of housing principally out of the definitional scope of Article 8, leaves the homeless/inadequately housed at the mercy of states to a considerable extent. This means that those in most need of protection against arbitrary state power are made vulnerable to the exercise of this power. The lack of a right to request housing from the state under Article 8, and the corresponding lack of a state obligation to ensure that those in need are housed adequately as a priority, leaves the adoption of social control measures against the homeless/inadequately housed as an available policy option to states. In this vein, the Court's conviction that “the scope of any positive obligation to house the homeless must be limited” (O’Rourke (dec), 2001:7; Yordanova and Others, 2012: §130) sounds indifferent, for instance, to the fact that providing a home to an individual suffering from homelessness as the first solution, embodied in “Housing First” policies, has proved, in multiple countries, to be most effective in fighting homelessness (DesBaillets and Hamill, 2022; Taylor et al., 2020).
This does not mean that states will always employ social control against the homeless/inadequately housed through the inappropriate use of power, nor does it mean that these measures cannot be challenged before the ECtHR ex post facto through Article 8 or another ECHR provision as the case may be. It means, however, that due to the wide discretion left to states, Article 8 does not come to the aid of the dispossessed in a proactive manner by ensuring them access to housing and offering them a way to be protected from the inappropriate exercises of state power.
Protection Against Public Evictions: What Role for Article 8 and for Whom?
The threat of eviction concerns those who have a home. This brings the claim of protection against eviction within the scope of Article 8 so long as the “sufficient and continuous links with a specific place” requirement is fulfilled (Yevgeniy Zakharov, 2017: §30), as the claim concerns an existing home. For those who have a home, then, Article 8 is effectuated rather smoothly, thus making this provision potentially more commanding when it comes to the assessment of social control in the context of housing.
Eviction is a matter that is prone to social control, as the threat of eviction can be used, for instance, as a way to compel norm-conforming behavior. At the same time, an eviction constitutes an interference with the rights protected by Article 8 (Paulić, 2009: §38); a very serious interference (McCann, 2008: §50). As per the nature of Article 8, however, it can be justified if it is in accordance with the law, has a legitimate aim and is necessary in a democratic society according to the Court's established case law (Jansons, 2022: §84). This case law has mostly concerned the criterion of necessity so far (as an exception, see Jansons, 2022). Necessity in a democratic society requires that the interference in question answers a “pressing social need” and is proportionate to the legitimate aim pursued. It is primarily for the national authorities to assess the necessity of the interference. However, the Court has the final say on “whether the reasons cited for the interference are relevant and sufficient” for the purposes of conformity with the ECHR (Buckland, 2012: §63; Buckley, 1996: §77; Chapman [GC], 2001: §99; Connors, 2004: §§81–84; Fick and Vols, 2022: 122; Ghailan and Others, 2021: §62; Stanková, 2007: §58; Vols, 2019: 727; Winterstein and Others [extracts], 2013: §75; Yordanova and Others, 2012: §117; Zrilić, 2013: §62; Ćosić, 2009: §20). The key consideration for the Court in this assessment is the existence of a fair balance that must be struck between general and individual interests (see, inter alia, Moreno Gómez, 2004: §55; Novoseletskiy [extracts], 2005: §69; Pibernik, 2004: §65; the same standard applies in cases concerning positive obligations as well, see Velosa Barreto, 1995: §§23–30). In so doing, the tool through which the Court ensures that it respects the principle of subsidiarity and accordingly the choices made on the domestic level, without “sing[ling] out a zone that is free of conventionality control” (Brems, 2019: 221), is the well-known margin of appreciation.
Principally, the margin of appreciation left to states depends on the context (Hatton and Others [GC], 2003: §103). The factors that the Court considers when assessing the margin include, inter alia, “the nature of the Convention right in issue, its importance for the individual and the nature of the activities concerned” (Buckley, 1996: §74) as well as “the nature of the aim pursued by the restrictions” (Connors, 2004: §82; Winterstein and Others [extracts], 2013: §76; Yordanova and Others, 2012: §118). In spheres of socioeconomic policy, such as housing, the margin is principle-wide as states are considered to be better placed to balance the competing interests due to their proximity to local conditions (Faulkner and McDonagh (dec), 2022: §109; Remiche, 2012: 790; Yordanova and Others, 2012: §118). Depending on what right is at stake, however, the scope of the margin is more nuanced (Gillow, 1986: §55; Kenna, 2008: 200–201; Palmer, 2010: 235). Article 8 is one of the rights to which the Court attaches high importance, as it “concerns rights of central importance to the individual's identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community” (Connors, 2004: §82; Gladysheva, 2011: §93; Ivanova and Cherkezov, 2016: §54).
To understand the impact of these adjudicatory principles in the context of housing and social control, the attention must once again be turned, for purposes of chronological order, first to Chapman ([GC], 2001). In Chapman, the Court clarified that it will not interfere with local planning policies unless there is “a manifest error of appreciation” ([GC], 2001: §92; see also Buckley, 1996; §75). In its examination of the justifiability of the local planning policies which interfered with the applicant's Article 8 rights, an important factor for the Court was the fact that the applicant settled her caravan on her own land unlawfully: Where a dwelling has been established without the planning permission which is needed under the national law, there is a conflict of interest between the right of the individual under Article 8 of the Convention to respect for his or her home and the right of others in the community to environmental protection …. The Court will be slow to grant protection to those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site. (Chapman [GC], 2001: §102; see also Kaminskas, 2020: §56)
In Connors (2004), decided three years after Chapman ([GC], 2001), the Court's approach was quite different. In this case, the main issue was the procedural protection afforded in the event of eviction to those who established their caravans on local authority gypsy sites in the UK (Connors, 2004: §85). This time, the applicant's lawfully established caravan was summarily evicted by a public authority from such a site based on disputed claims that he and his family caused nuisance (Connors, 2004: §§8–35). In its examination, the Court first contextualized the margin of appreciation with an emphasis on the importance of the interests protected by Article 8 (Connors, 2004: §82; Palmer, 2010: 236). It then went on to further narrow down the applicable margin as follows: The serious interference with the applicant's rights under Article 8 requires … particularly weighty reasons of public interest by way of justification and the margin of appreciation to be afforded to the national authorities must be regarded as correspondingly narrowed …. The present case may also be distinguished from the Chapman case, in which there was a wide margin of appreciation, as in that case, it was undisputed that the applicant had breached planning law in taking up occupation of land within the Green Belt in her caravans and claimed, in effect, special exemption from the rules applying to everyone else. (Connors, 2004: §86)
Crucially, in this case, the UK argued that summary evictions were important for controlling antisocial behavior that had occurred on local authority caravan sites. 13 Using summary evictions from local authority sites to “control antisocial behavior” is a form of social control (Brown, 2004). The state therefore argued that social control (even if it did not frame the measures explicitly as such) had been employed via summary evictions to ensure social order as a legitimate aim under Article 8(2). However, the Court was not convinced by this argument, as it doubted the effectiveness of such a measure based on the statistics available and stated that there were other ways to deal with that problem (Connors, 2004: §89). This finding is significant because it shows how the Court's concern with appropriately balancing competing interests makes it possible for states to justify social control measures under Article 8, so long as they can show that the measures are proportionate to the legitimate aim pursued. In Connors (2004), the Court did not accept the government's claim to that effect as it was not substantiated. However, the Court's finding concretely verifies the point made earlier in section 2 as to how social control ties in with the tension between individual rights and state governance, and that it cannot simply be framed as a good or bad thing. Moreover, the finding implies that were the government to convincingly show an outweighing public interest in adopting such a policy, the Court may have found it justified, even though weighty justifications would have been required for such a policy in the context of an eviction from a lawfully occupied home. Indeed, McCann further cemented the finding in Connors (2004) regarding the seriousness of an eviction and the importance of procedural safeguards after emphasizing that “the loss of one's home is a most extreme form of interference with the right to respect for the home” (2008: §50, see also Kay and Others, 2010: §68; Bates, 2019: 70; Nield, 2011: 110–112; Palmer, 2010: 236).
The evolution of the cases concerning an existing home demonstrates another protection asymmetry between lawful and unlawful occupiers then, despite the fact that these cases trigger Article 8 relatively easily. Unlawful occupation directly affects the balancing exercise, thus substantially shaping the outcome of a case. This asymmetry has not been overcome in the case law; to the contrary, that unlawful occupiers will have a disadvantaged position before the Court has been repeated by the ECtHR as recently as in Faulkner and McDonagh ((dec), 2022). There is, therefore, an important caveat for unlawful occupiers when it comes to the well-established significance of procedural safeguards which ensure that competing housing-related interests are adequately considered in the balancing exercise (Bates, 2019: 71; Casla, 2022: 253–254). Thus, even though unlawful occupiers would have an easier time than the homeless/inadequately housed in terms of invoking the protection of Article 8, they would still have a harder time in requesting protection against social control measures in the context of an eviction. Inappropriate exercises of state power that go beyond a legitimate concern for ensuring compliance with the law may therefore escape the Court's scrutiny in the event of unlawful occupation.
Having said that, a key case concerning the role that procedural safeguards play in an eviction, Yordanova and Others (2012), has brought relative nuance to the matter of unlawful occupation. This nuance is owing to the fact that the Court carefully contextualized the proportionality review by clarifying certain elements of the dispute that should have been considered at the domestic level, thus giving procedural safeguards a “substantive dimension” (Leijten, 2018: 246; Remiche, 2012: 791–793, 798). In so doing, the Court remarked that, if unlawful occupation continues and is tolerated by the authorities for a long time, which causes the applicants to establish strong ties with the surrounding community, then the unlawfulness thereof becomes less detrimental to the applicants in the balancing exercise (Brems, 2013: 152; Yordanova and Others, 2012: §121; see also mutatis mutandis Brežec, 2013: §48; Ivanova and Cherkezov, 2016: §53; Orlić, 2011: §70; Winterstein and Others [extracts], 2013: §78; compare Ghailan and Others, 2021: §67). The Court moreover noted the threat of homelessness that the applicants faced and stated that: …before issuing the impugned order the authorities did not consider the risk of the applicants’ becoming homeless if removed. … however, … the principle of proportionality required that due consideration be given to the consequences of their removal and the risk of their becoming homeless. (Yordanova and Others, 2012: §126)
Conclusion
Within the ECtHR's individualistic rights paradigm, being homeless/inadequately housed leaves one vulnerable to social control under Article 8. However, Article 8 could become an important venue of protection for those who have a home when social control threatens their sphere of individual entitlement. In such cases, states’ need to guarantee social order may still justify the employment of social control measures, so long as they are shown to be proportionate to the aim pursued. This is rather difficult to show, however, at least when the eviction of an individual from their lawfully occupied home is at issue. For unlawful occupiers, however, the Court's protection is less generous. There seems, therefore, to be a protection asymmetry between the possessed and the dispossessed when it comes to the employment of power against them; a point that perhaps states the obvious. What is striking, however, is that ECHR Article 8, which protects interests that are fundamentally important to every individual and society and directly concerns the enjoyment of adequate housing, does not overcome this asymmetry. Rather, it fully embodies it. The relation of Article 8 to housing and social control, then, paints a rather bleak picture for those who most need and would most benefit from the protection of Article 8.
Footnotes
Acknowledgments
The author is grateful to Vladislava Stoyanova, Valentin Jeutner, Michel Vols, Lieneke Slingenberg, Emiliya Bratanova, Michael G. Marcondes Smith, the two anonymous reviewers, and the participants of the seminar “Housing and Social Control—A Legal Evaluation” that took place in Amsterdam on 2 June 2022 for their most helpful and constructive comments and suggestions on the earlier versions of this article. The usual disclaimer applies.
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
