European Court of Human Rights

FOURTH SECTION

DECISION

Application no 3468/10
Darrell DIXON
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 21 February 2012 as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Päivi Hirvelä,
Ledi Bianku,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Vincent A. de Gaetano, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 11 January 2010,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Darrell Dixon, is a British national who was born in 1965 and lives in London. He is represented before the Court by Ms J. Pritchard, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms A. Sornarajah, of the Foreign and Commonwealth Office.

THE LAW

The applicant complained that he was evicted from his home without the proportionality of the eviction being considered by an independent court. He relied on Article 8 of the Convention which, in so far as relevant, provides as follows:

“1.  Everyone has the right to respect for ... his home ...

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.”

He also complained that he was unable to defend the possession proceedings on the ground that his personal circumstances made the granting of a possession order disproportionate and that as a result he did not have access to an effective remedy in respect of his Convention complaint. He relied on Article 13 of the Convention which, in so far as relevant, provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

By letter dated 8 November 2011 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“In 1983, Wandsworth London Borough Council (‘the Council’) granted the applicant, and his sister, a joint secure tenancy. The tenancy was determined in November 2005 by the applicant’s sister. Following a conviction for possession of a Class A drug (cocaine) and a police caution for possession (on a separate occasion) of herbal cannabis, the Council commenced possession proceedings. On 9 August 2006, the County Court granted an order for possession. Following an unsuccessful judicial review challenge to the Council’s decision-making, the applicant applied to have the possession order set aside in reliance on Article 8 of the Convention. That application was dismissed on 15 January 2009 by H.H.J. Bidder Q.C., sitting as a deputy High Court Judge. Applying the domestic case law, as it stood at the time, H.H.J. Bidder ruled (at §59) that he could not consider a proportionality defence under Article 8, albeit that he made the obiter finding that if proportionality were the test, that test would have been satisfied (§70). The Court of Appeal dismissed the applicant’s appeal.

The Government accept the conclusion of the Court in §50 of McCann v. the United Kingdom, no. 19009/04, 13 May 2008, that where a court is considering granting a possession order in relation to a person’s ‘home’, he ‘should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention’ and – in particular – that such a person must, if he wishes, have the opportunity ‘to challenge the decision of a local authority to seek a possession order on the basis of the alleged disproportionality of that decision in light of personal circumstances’: Kay v. the United Kingdom, no. 37341/06, 21 September 2010, at §74. The Government further accept, in the circumstances, that the High Court’s obiter consideration of proportionality was not sufficient to satisfy this procedural requirement of Article 8 of the Convention in the applicant’s case.

The Government therefore acknowledge and regret the violation of Article 8 that has occurred in respect of the applicant. The Government is confident that recent binding domestic jurisprudence (see Manchester City Council v Pinnock [2010] 2 WLR 287 and Hounslow London Borough Council v Powell [2010] 2 WLR 287) has clarified that the domestic courts must now comply with the above Article 8 procedural requirement when determining possession claims.

Given the finding (albeit obiter) by the High Court that the possession order was in fact proportionate in the applicant’s case, and in the circumstances, the Government hereby offers the sum of EUR 3,000, which includes just satisfaction and any legal costs and expenses, in respect of this violation of the procedural aspect of Article 8.

The above payment will be paid in pounds sterling to the bank account named by the applicant within three months from the date of the striking-out decision of the Court pursuant to Article 37 of the Convention. These payments will constitute the final settlement of the case.”

In a letter of 15 January 2012 the applicant expressed the view that the circumstances of his case revealed a breach not only of the procedural aspect of Article 8 of the Convention but also of its substantive aspect. He claimed that had his case been properly considered by the courts, it was highly unlikely that the possession order would have been granted. He therefore strongly contested that the Government’s unilateral declaration constituted just satisfaction in his case.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application.”

It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).

The Court has established in a number of cases, including those brought against the United Kingdom, its practice concerning complaints about the violation of 8 in possession cases (see, for example, Connors v. the United Kingdom, no. 66746/01, § 92, 27 May 2004; McCann v. the United Kingdom, no. 19009/04, §§ 47, 50 and 53, 13 May 2008; Ćosić v. Croatia, no. 28261/06, §§ 18 and 22, 15 January 2009; Zehentner v. Austria, no. 20082/02, §§ 54 and 59, 16 July 2009; Paulić v. Croatia, no. 3572/06, §§ 38 and 43, 22 October 2009; and Kay and Others v. the United Kingdom, no. 37341/06, §§ 68 and 72-74, 21 September 2010).

Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).

Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Lawrence Early Lech Garlicki
Registrar President