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You are here: BAILII >> Databases >> European Court of Human Rights >> VELOSA BARRETO v. PORTUGAL - 18072/91 [1995] ECHR 49 (21 November 1995)
URL: http://www.bailii.org/eu/cases/ECHR/1995/49.html
Cite as: [1995] ECHR 49
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In the case of Velosa Barreto v. Portugal (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of Rules of Court A (2), as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr R. Macdonald,
Mr J. De Meyer,
Mr A.N. Loizou,
Mr F. Bigi,
Mr M.A. Lopes Rocha,
Mr L. Wildhaber,
Mr D. Gotchev,
Mr P. Jambrek,
and also of Mr H. Petzold, Registrar,
Having deliberated in private on 26 May and 26 October 1995,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 40/1994/487/569. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) and thereafter only to cases
concerning States not bound by that Protocol (P9). They correspond to
the Rules that came into force on 1 January 1983, as amended several
times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission of
Human Rights ("the Commission") on 9 September 1994 and by the
Government of the Portuguese Republic ("the Government") on
24 October 1994, within the three-month period laid down by Article 32
para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It
originated in an application (no. 18072/91) against Portugal lodged
with the Commission under Article 25 (art. 25) by a Portuguese
national, Mr Francisco Velosa Barreto, on 31 March 1991.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby Portugal recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46); the
Government's application referred to Article 48 (d) (art. 48-d) of the
Convention and Rule 32 para. 1 of Rules of Court A. The object of the
request and of the application was to obtain a decision as to whether
the facts of the case disclosed a breach by the respondent State of its
obligations under Article 8 of the Convention and Article 1 of
Protocol No. 1 (art. 8, P1-1).
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant stated that he wished
to take part in the proceedings and designated the lawyer who would
represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr M.A. Lopes Rocha, the elected judge of Portuguese nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 24 March 1994, in the
presence of the Registrar, the President drew by lot the names of the
other seven members, namely Mr R. Macdonald, Mr J. De Meyer,
Mr A.N. Loizou, Mr F. Bigi, Mr L. Wildhaber, Mr D. Gotchev and
Mr P. Jambrek (Article 43 in fine of the Convention and Rule 21
para. 4) (art. 43).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting
through the Registrar, consulted the Agent of the Government, the
applicant's lawyer and the Delegate of the Commission on the
organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant
to the order made in consequence, the Registrar received the
Government's memorial on 16 January 1995 and the applicant's memorial
on 18 January. On 27 January the Secretary to the Commission informed
the Registrar that the Delegate would submit his observations at the
hearing. On 18 April 1995 the applicant's lawyer supplied details of
his client's claims under Article 50 (art. 50) of the Convention.
5. In the meantime, on 1 March 1995, the Commission had produced the
file on the proceedings before it, as requested by the Registrar on the
President's instructions.
6. On 3 March 1995 the President granted the applicant legal aid
(Rule 4 of the Addendum to Rules of Court A).
7. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
24 May 1995. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr A. Henriques Gaspar,
Deputy Attorney-General of the Republic, Agent,
Mr R. Moura Ramos, Professor in the Faculties of Law
of the University of Coimbra and the Portuguese
Catholic University, Counsel;
(b) for the Commission
Mr F. Martínez, Delegate;
(c) for the applicant
Mr F.-M. Welsch, avocat, Counsel.
The Court heard addresses by Mr Martínez, Mr Welsch,
Mr Moura Ramos and Mr Henriques Gaspar.
AS TO THE FACTS
I. The circumstances of the case
8. Mr Francisco Velosa Barreto, a Portuguese national born in 1954,
is an office worker. He married in April 1979 and he and his wife have
one child, born on 7 June 1980.
9. When the applicant was still single he lived with his parents.
Since his marriage he has lived in a house rented by his
parents-in-law. One of his wife's brothers and two of her aunts have
also lived there at various times in that period. The house, in
Funchal (Madeira), has four bedrooms, a kitchen, a living-cum-dining
room and a basement.
10. In November 1982 Mr Velosa Barreto inherited from his parents a
house also situated in Funchal. This house, which has been let for
residential use to E.R. since 23 June 1964, has three bedrooms, a
kitchen and a bathroom. The rent, which had initially been fixed at
1,200 escudos (PTE), was PTE 1,500 at the time when the proceedings
began.
11. On 6 April 1983 the applicant and his wife brought proceedings
against E.R. and his wife in the Funchal Court of First Instance.
Relying on Articles 1096 and 1098 of the Civil Code, they asked the
court to terminate the lease on the ground that they needed to occupy
the property as their own home.
12. The Funchal Court of First Instance found against the applicant
and his wife on 13 March 1989. It held that one of the statutory
requirements for termination had not been satisfied, since the
applicant had not established facts which proved a real need to occupy
the house himself.
The reasons given by the judge included the following
considerations:
"A landlord's need to terminate a lease must be assessed mainly
in the light of his family circumstances, his living conditions
and/or his occupational status at the time when the action is
brought or foreseeable in the immediate future.
In that connection, the following facts have already been
established: that 'since his marriage, in April 1979,
Mr Velosa Barreto has lived with his parents-in-law in the
Travessa do Caetano, [Funchal]'; that 'Mrs Velosa Barreto's
parents, Mr and Mrs Velosa Barreto and their son, one of
Mrs Velosa Barreto's brothers and two of her aunts ... lived in
the house'; that 'the plaintiffs' house has three bedrooms, a
kitchen and a bathroom'; that 'the house where the plaintiffs
live has four bedrooms on the first floor, a kitchen and a
living-cum-dining room on the ground floor and a basement'; that
'Mr Velosa Barreto's parents-in-law, who are at present the sole
occupants, with Mr and Mrs Velosa Barreto and their son, of the
house in the Travessa do Caetano, are resigned to the presence
in their house of the plaintiffs and their son, since they have
nowhere else to live'; and that 'the plaintiffs both work in
Funchal'.
It should be noted that Mrs Velosa Barreto's two aunts and her
brother no longer live in the house where the plaintiffs are now
living and that this has increased the available living space and
privacy that all human beings need. The plaintiffs' living
conditions are better now than they were when the action was
brought, since they even have a bedroom for their son.
Moreover, the plaintiffs did not succeed in proving, as the onus
was on them to do, that the relations between themselves and
Mrs Velosa Barreto's parents were permanently strained and
conflictual. What is certain, however, is that no link
whatsoever has been established between their son's illness and
their living conditions in that house.
It might be said - and after all it has been proved that the
plaintiffs live with Mrs Velosa Barreto's parents, 'who are
resigned to the presence in their house of the plaintiffs and
their son, since they have nowhere else to live' - that in view
of the adage 'When a man marries he needs a house', cited by
Mr Velosa Barreto in his first application, the existence of a
marriage should be sufficient to establish a need to recover
possession of the rented property in order to live there.
...
However, each case is unique. Regard being had to the facts
found to have been established and those asserted by the
plaintiffs in support of their claims, but not established, and
given that the concept of the need to occupy must be interpreted
as a state of necessity, to be objectively assessed on the basis
of a reasonable criterion, in the light of everyday experience,
it cannot be denied that the facts as a whole do not support the
conclusion that the plaintiffs need the property in question in
order to live there.
Their living conditions would certainly be better and more
comfortable in the house let to the defendants, but the real need
required by case-law does not exist, nor is this a case where it
is absolutely necessary or essential for the plaintiffs to
recover possession of the accommodation.
It follows that, although the other conditions in Article 1098
of the Civil Code have been satisfied, the plaintiffs'
application must be considered inadmissible, since they have not
established that they are entitled to terminate the lease under
Article 1096 para. 1 (a).
In conclusion, without finding it necessary to add any further
considerations, I declare unfounded, for lack of evidence, the
present action for termination of the lease and eviction of the
tenant (processo especial de despejo), and find against the
plaintiffs ..."
13. On 6 April 1989 Mr Velosa Barreto appealed against this judgment
to the Lisbon Court of Appeal. Referring to the underlying intention
of the legislation concerning the right to terminate a lease, he argued
that he and his family had the right to live in a home they did not
have to share with anyone.
14. On 11 October 1990 the Court of Appeal upheld the impugned
judgment. It held that the house of the applicant's parents-in-law was
large enough for all the people who lived in it, including the
applicant, his wife and his son. There was therefore no real need for
Mr Velosa Barreto to live in the house he owned.
The Court of Appeal gave the following reasons for its decision:
"In order to establish need, plaintiffs must cite specific facts
which, once proved, establish the existence of a real, serious
and present need, adducing weighty rather than purely
hypothetical arguments. It is not sufficient to desire, to wish
or to claim.
...
In order to be able to exercise their right [to terminate the
lease], the applicants must adduce evidence of those facts
(Article 342 para. 1 of the Civil Code).
...
... it is established that:
(a) the house where the plaintiffs live has four bedrooms on the
first floor, a kitchen and a living-cum-dining room on the ground
floor and a basement;
(b) at present that house is occupied by Mr Velosa Barreto's
parents-in-law, the plaintiffs and their son, that is five people
altogether; and
(c) Mr Velosa Barreto's parents-in-law are resigned to the
presence in the house of the plaintiffs and their son.
As the house has four bedrooms, the plaintiffs can occupy one
room and their son another.
The house has enough bedrooms for all the members of the family
to be able to live there.
Each couple has a bedroom and the plaintiffs' son has his. And
there is still one bedroom left over.
The judgment must reflect the situation at the conclusion of the
evidence and argument (Article 663 para. 1 of the Code of Civil
Procedure).
Since it has not been proved that the plaintiffs are in a
precarious situation, the fact that they live with
Mrs Velosa Barreto's parents, albeit by their favour, is
manifestly insufficient to prove the need required by
Article 1096 of the Civil Code ... Moreover, the plaintiffs have
not proved that there was tension which made it intolerable for
them all to live in the same house.
Derogation from the general principle and eviction of the tenant
for the benefit of the landlord are possible only where it
appears to be absolutely necessary, for weighty reasons, for the
landlord to live in the property (Article 1095 of the Civil
Code).
In the light of the foregoing considerations, and because the
plaintiffs have not proved need as set out above and as this
court interprets it, the appeal is inadmissible and the judgment
is upheld."
15. No appeal lay against the above judgment.
II. Relevant domestic law
16. The following is a translation of the main provisions of the
Civil Code applicable at the material time to the termination of
tenancy contracts on residential property:
Article 1095
"(General principle)
... A landlord shall not have the right to terminate a [tenancy]
contract, which shall be tacitly renewed unless terminated by the
tenant in accordance with Article 1055."
Article 1096
"(Exceptions)
1. A landlord may seek termination of a [tenancy] contract on
its expiry in the following cases:
(a) when he needs (necessite) the property in order to live there
or to build his home there.
..."
Article 1098
"(Termination in order to occupy)
1. The right of a landlord to seek the termination of a
[tenancy] contract in order to occupy the property as his home
shall be subject to the following conditions:
(a) he must have owned ... the property for more than five years
or have acquired it by inheritance, in which case this qualifying
period shall not apply;
(b) he must not have been in occupation of another residence in
the area where the property covered by the [tenancy] contract is
situated, either as owner or tenant, for more than one year; and
(c) he must not previously have sought to terminate the contract.
..."
17. According to established case-law (Supreme Court judgments of
15 December 1981 and 12 July 1983), a landlord's right to terminate a
lease in order to occupy the property as his home may be exercised only
when, in addition to the conditions laid down in Article 1098 of the
Civil Code, the condition laid down in Article 1096 para. 1 (a), namely
the landlord's real need to live in the property, has been satisfied.
18. These rules were amended by the legislative decree of
15 October 1990, but this did not introduce any fundamental change
regarding the possibility of termination.
PROCEEDINGS BEFORE THE COMMISSION
19. Mr Velosa Barreto applied to the Commission on 31 March 1991.
He complained of a violation of Article 8 (art. 8) of the Convention
on account of the impossibility of recovering possession of the house
he owned in order to live in it with his family.
20. The Commission (Second Chamber), examining the complaint of its
own motion from the standpoint of Article 1 of Protocol No. 1 (P1-1),
declared the application (no. 18072/91) admissible on 12 January 1994.
In its report of 29 June 1994 (Article 31) (art. 31), it expressed the
opinion by nine votes to three that there had been a violation of
Article 8 (art. 8) and by nine votes to three that there had been no
violation of Article 1 of Protocol No. 1 (P1-1). The full text of the
Commission's opinion and of the dissenting opinion contained in the
report is reproduced as an annex to this judgment (1).
_______________
1. Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 334 of Series A
of the Publications of the Court), but a copy of the Commission's
report is obtainable from the registry.
_______________
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE CONVENTION
21. Mr Velosa Barreto alleged that the Portuguese courts, by not
allowing him to terminate the lease on the house he owned, had
infringed his right to respect for his private and family life. He
relied on Article 8 (art. 8) of the Convention, which provides:
"1. Everyone has the right to respect for his private and family
life, his home and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the
law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
The applicant claimed that it was implicit in Article 8 (art. 8)
that each family had the right to a home for themselves alone. He
complained in particular of the obstacles that had been placed in the
way of his pursuit of a satisfactory private and family life, since his
living conditions and surroundings should have been improved. He had
thus been prevented from availing himself of an essential means of
developing a fulfilling private and family life. His child had never
had the advantage of growing up in complete privacy with his parents,
and had remained an only child because of the cramped living
conditions.
22. The Government contended that Mr Velosa Barreto could not be
considered to have suffered an "interference" in the exercise of his
right to respect for his private and family life. He was not
complaining in substance of an act which could constitute interference
but merely expressing his disagreement with the view the courts had
taken of the facts of the case. The applicant's family circumstances
had not been altered in any way. Moreover, the State was under no
positive obligation. It followed that Article 8 (art. 8) was not
applicable.
23. The Court reiterates that, although the object of Article 8
(art. 8) is essentially that of protecting the individual against
arbitrary interference by the public authorities, it may also give rise
to positive obligations (see the Airey v. Ireland judgment of
9 October 1979, Series A no. 32, p. 17, para. 32), particularly the
obligation to ensure respect for private and family life even in the
sphere of interpersonal relations (see the X and Y v. the Netherlands
judgment of 26 March 1985, Series A no. 91, p. 11, para. 23). In this
matter as in others a fair balance must be struck between the general
interest and the interests of the people concerned (see, among other
authorities, the B. v. France judgment of 25 March 1992, Series A
no. 232-C, p. 47, para. 44, and the Keegan v. Ireland judgment of
26 May 1994, Series A no. 290, p. 19, para. 49).
24. The Court recognises that the decisions complained of prevented
Mr Velosa Barreto from living in his house, as he intended.
Nevertheless, effective protection of respect for private and family
life cannot require the existence in national law of legal protection
enabling each family to have a home for themselves alone. It does not
go so far as to place the State under an obligation to give a landlord
the right to recover possession of a rented house on request and in any
circumstances.
25. Like the Commission, the Court considers that the legislation
applied in this case pursues a legitimate aim, namely the social
protection of tenants, and that it thus tends to promote the economic
well-being of the country and the protection of the rights of others.
26. It is not in dispute that, in pursuit of those aims, the
Portuguese legislature was entitled to make termination of a lease
subject to the condition that the landlord "needs the property in order
to live there" (see paragraph 16 above).
The only point at issue is whether, in applying the above rule
to the applicant's case, the Portuguese courts infringed his right to
respect for his private and family life.
27. Mr Velosa Barreto asserted that the Portuguese authorities had
not endeavoured to strike a balance between the general interest and
his own interests. The assessment of need had been based solely on the
fact that he lived with his parents-in-law, whose house had been
adjudged large enough to accommodate his family. The judge had thus
ignored the precarious and unstable situation, whose continuation
depended on the goodwill and hospitality of others. With regard to the
housing shortage alleged to exist in Funchal, a point which the
Government had raised for the first time before the Court, the various
censuses showed that there had been no such shortage while the
proceedings were pending. In addition, there was no evidence to
support the contention that termination of the lease would have had
dramatic consequences for the tenants.
28. According to the Government, a balancing exercise between the
respective interests is carried out by the courts. Determination of
the existence of "need" lay entirely within the national authorities'
margin of appreciation, and they had settled the dispute in accordance
with criteria established by case-law and based on the principle of
proportionality, the good faith of the judiciary and the social
consensus. The Portuguese courts, who had direct knowledge of the
relevant circumstances, were clearly better placed than the European
Court to assess the facts at a given time and place.
29. The Court notes that the Funchal Court of First Instance and the
Lisbon Court of Appeal held that in the circumstances of the case
existence of the "need" required by law had not been proved.
Each of those courts reached that conclusion after duly
considering the various questions of fact and of law submitted to it
and conducting a careful analysis of the arguments put forward by the
applicant, which it then set out at length and in detail in the reasons
for its decision. In particular, both courts took account of the fact
that Mr Velosa Barreto's situation had improved during the proceedings,
since two of his wife's aunts and her brother had in the meantime left
the house he was living in, leaving more room for his own household.
30. It has not been shown, and there is no evidence to suggest, that
by ruling as they did the Portuguese courts acted arbitrarily or
unreasonably or failed to discharge their obligation to strike a fair
balance between the respective interests.
31. Accordingly, the Court considers that the right guaranteed by
Article 8 (art. 8) has not been infringed.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)
32. The applicant maintained that the judgments in issue, by
preventing the family from occupying the house they owned, were in
breach of Article 1 of Protocol No. 1 (P1-1), which provides:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary
to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions
or penalties."
33. The Government contended that Mr Velosa Barreto had not cited any
fact which could be construed as an infringement of his right of
property. No intervention capable of infringing that right could be
held against the Portuguese authorities. The applicant had been bound
by the terms of a lease concluded by his father when he was the owner
of the house. Even supposing that the right of property was in issue,
legislation restricting freedom of contract in respect of tenancies of
residential property had to be considered control of the use of
property, within the meaning of the second paragraph of the Article
(P1-1) concerned.
34. The Commission concluded that there had been no violation of that
Article (P1-1).
35. The Court finds that the restriction on the applicant's right to
terminate his tenant's lease constitutes control of the use of property
within the meaning of the second paragraph of Article 1 of
Protocol No. 1 (P1-1). That restriction, as the Court has already held
(see paragraph 25 above), pursued a legitimate social policy aim.
36. For the requirements of Article 1 of Protocol No. 1 (P1-1) to be
satisfied, such an interference must strike a fair balance between the
demands of the general interest of the community and the requirements
of the protection of the individual's fundamental rights (see, among
other authorities, the Sporrong and Lönnroth v. Sweden judgment of
23 September 1982, Series A no. 52, p. 26, para. 69, and, as the most
recent authority, the Scollo v. Italy judgment of 28 September 1995,
Series A no. 315-C, p. 53, para. 32).
37. The Court observes in that connection that Mr Velosa Barreto did
not rely on Article 1 of Protocol No. 1 (P1-1) in his application; the
Commission raised that provision (P1-1) of its own motion in its
decision on admissibility (see paragraph 20 above). The Court notes
that the applicant did not subsequently present argument in support of
this complaint.
For the rest, it refers to its considerations relating to the
alleged infringement of the applicant's right to respect for his
private and family life (see paragraphs 29-30 above), which are also
applicable to his right to the peaceful enjoyment of his possessions.
38. It accordingly concludes that there has been no breach of
Article 1 of Protocol No. 1 (P1-1).
FOR THESE REASONS, THE COURT
1. Holds by eight votes to one that there has been no breach of
Article 8 (art. 8) of the Convention;
2. Holds by eight votes to one that there has been no breach of
Article 1 of Protocol No. 1 (P1-1).
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 21 November 1995.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of Rules of Court A, the dissenting
opinion of Mr Gotchev is annexed to this judgment.
Initialled: R. R.
Initialled: H. P.
DISSENTING OPINION OF JUDGE GOTCHEV
I am unable to agree with the majority in this case concerning
either the question whether there was a violation of Article 8
(art. 8) of the Convention or the question of the alleged violation of
Article 1 of Protocol No. 1 (P1-1).
1. With regard to Article 8 (art. 8), in my view the possibility for
the applicant and his family to occupy living space separate from the
rooms or space where his wife's parents live is a substantive element
of family life within the meaning of Article 8 (art. 8) of the
Convention, unless the applicant himself considers his wife's parents
part of his own family, and that is obviously not the case.
So the question how many rooms there are in the parents' house
and how many individuals live there is not of decisive importance for
the question of family life.
Both domestic courts refused to give the applicant the
opportunity to live with his family in normal conditions independently
from other persons who were not members of his family.
Moreover, the applicant and his wife were young enough at the
time of the alleged violation to have more children. Unfortunately,
the Court did not attach sufficient weight to this aspect of the case.
I think that the possibility of increasing the size of one's family
should be regarded as one element of family life.
2. With regard to Article 1 of Protocol No. 1 (P1-1), I am convinced
that there was a breach of the applicant's right to the peaceful
enjoyment of his possessions. It is true that, in accordance with the
second paragraph of Article 1 of Protocol No. 1 (P1-1), the State could
legitimately take measures to control the use of property in accordance
with the general interest, and that according to the Court's case-law
the tenants' interest should be regarded as a specific part of the
general interest. But it is also the Court's case-law that, where a
Contracting State applies the second paragraph (P1-1), the domestic
courts should strike a fair balance between the directly protected
human right of the landlord (the applicant in this case) and the right
of the tenant.
In my view, the Court could not find that a fair balance had been
struck in this case.
For me it is quite obvious that the applicant had an urgent need
to occupy his house, regard being had to his need to establish an
independent family life and to have the possibility of having more
children.