Enlargement of the concept of residence by the ECtHR
JUDGMENT
Mindek v. Croatia 11.09.2018 (no. 6169/13)
SUMMARY
Concept of residence. Enlargement of the concept. A residence is the place where someone has a sufficient and continuous bond without having to spend their daily lives there. Revision of a decision pursuant to Article 80 (1) of the ECtHR Court Regulation. Request for a review of a judgment which had held a violation of the right to property by claiming that the applicant did not live in the disputed house. Rejection of the request by the ECtHR, since the fact that the applicants did not live in the house was not decisive in justifying the revision of the decision.
PROVISIONS
Article 1 of the First Additional Protocol
Article 80 of the Rules of the Court
PRINCIPAL FACTS
The case concerned a request for revision of a 2016 judgment by the European Court of Human
Rights with regard to the forced sale of a house in order to pay a debt.
The applicant, Anton Mindek, is a Croatian national who was born in 1932. Between 2003 and 2007
he lost criminal and civil proceedings for defamation following the publication of two articles in a
daily newspaper accusing his neighbour of stealing his house and orchard. He was ordered to pay
damages and costs to his neighbour. He did not pay the sums on time and in 2007 the courts
instituted enforcement proceedings, ordering the seizure and sale of his house. In 2011 the courts
officially awarded the property to the neighbour. In the meantime, Mr Mindek had paid the debt in
full. However, the courts rejected his request to discontinue the enforcement proceedings.
In its judgment of 30 August 2016, the Court held that there had been a violation of Article 1 of
Protocol No. 1 (protection of property) to the European Convention on Human rights because the
domestic courts had decided to sell Mr Mindek’s share in the house and the surrounding land even
after he had paid his debt in full.
On 10 February 2017 the Government informed the European Court that they had learned that
Mr Mindek and his wife had not been living in the house at issue. They argue that this could have
had a decisive influence on the Court’s original judgment, which had been based on the assumption
that Mr Mindek was facing eviction because of the judicial sale of his share in the house.
The Croatian Government accordingly requested revision of the judgment within the meaning of
Rule 80 of the Rules of Court.
THE DECISION OF THE COURT
In its judgment today the Court decided to dismiss the Government’s request for revision for the above reasons:
In this connection, the Court first notes that it examined the present case under Article 1 of Protocol No. 1 and not Article 8 of the Convention. Furthermore, its finding of a violation of Article 1 of Protocol No. 1 was based on the severity of the consequences the sale had on the applicant, which rendered that decision manifestly unreasonable.
In the reasons given for finding a violation of Article 1 of Protocol No. 1 the reference to the applicant’s house being his home appears in paragraph 85 of the original judgment, from which it follows that the State failed to strike a fair balance between the aim sought to be achieved and the measure employed primarily due to disproportionality between the value of the house and the value of the debt.
Under the Court’s case-law developed in the context of Article 8 of the Convention, the term “home” in the English version of Article 8 is not to be interpreted narrowly. Whether or not a particular dwelling constitutes a “home” will depend on the factual circumstances, notably the existence of sufficient and continuous links with a specific place. In a number of cases the Court has held that a given dwelling constituted a “home” even though the applicants were not living there on a permanent basis. Likewise, the Court has considered that second or holiday homes also constituted a home within the meaning of Article 8 of the Convention
Seen in the light of the case-law cited above, these facts, in the Court’s view, mean that the applicant retained sufficient continuing links with the house at issue for it to be considered his “home” in Convention terms. Therefore, the fact that the applicant was not actually living in the house at issue on a daily basis is not a fact of decisive influence, within the meaning of Rule 80 § 1 of the Court’s Rules, which would justify a revision of the Court’s original judgment in the present case.
This conclusion further allows for the dismissal of the Government’s arguments that the applicant’s representative abused the right of individual application(echrcaselaw.com editing).
