Information Note on the Court’s case-law 260

March 2022

Faulkner and McDonagh v. Ireland (dec.) - 30391/18 and 30416/18

Decision 8.3.2022 [Section V]

Article 8

Article 8-1

Respect for home

Domestic court proceedings and orders requiring members of Traveller community to vacate a site being illegally occupied: inadmissible

Facts – The applicants are members of the Traveller community who illegally occupied a site with their families. The site was at the side of a public road which was having works carried out on it, as part of a new road scheme. After the applicants and other occupants refused to leave the site, the local council filed for court orders preventing them from placing their caravans on the site and requiring them to remove their caravans and all other property. The Circuit Court granted the orders after a hearing. The applicants appealed and, before the Circuit Court, they unsuccessfully sought to stay the orders until their appeal was decided. They appealed unsuccessfully to the High Court against the refusal of a stay. Subsequently, they left the site and also withdrew their pending, substantive appeal.

The applicants complained before the Court that the orders constituted an interference with their right to respect for their home and that the domestic authorities had not carried out an examination of the proportionality of that interference.

Law – Article 8:

At the time of the departure, both applicants and their families had been living on the site for over four years and their children had been enrolled in local schools; the site could therefore be viewed as their home at the relevant time. Accordingly, the orders requiring the applicants to vacate the site had constituted an interference with their right to respect for their home. The interference had been in accordance with the law and had pursued the legitimate aims of public safety and the economic well-being of the country through the improvement of the road network.

The Court had to determine whether the interference had been proportionate to the legitimate aims pursued:

The Court first considered and rejected the criticisms of the domestic legal framework as such in that regard. The relevant domestic case-law had indicated the need to apply Convention principles and referred to relevant case-law of the Court. The domestic courts were also under a general obligation to interpret domestic law, insofar as was possible, in accordance with the Convention. That included the ability to have the proportionality of such a measure determined, in keeping with the requirements of Article 8.

The Court next determined whether applicants had benefitted from sufficient procedural safeguards and that the decision-making process followed in the case had been fair and such as to afford due respect to their rights under Article 8.

In the hearing when the orders had first been made, the applicants had been directly heard in court but had not been legally represented. It was therefore difficult to accept that they had been in a position to participate effectively in the first phase of proceedings, which had relied on sworn written statements as evidence and had been adversarial in nature. The marginalised status or vulnerable nature of the party opposing the prospective interference with their “home” could not be overlooked. Furthermore, it did not appear that the Circuit Court had explicitly assessed the proportionality of the orders being sought.

However, in determining whether the required proportionality assessment had in fact been undertaken at domestic level, and whether the proceedings had been fair overall, the Court considered that it should examine them in their entirety. The disadvantage to the applicants due to the initial lack of legal representation had been almost immediately overcome when they had been granted legal aid some days later. They had been able to assert their interests before the Circuit Court again (application to stay enforcement of the orders) and then before the High Court. It was true that the scope of the proceedings before the High Court had been somewhat narrow: it had been called on to examine the manner and timing of the applicants’ departure from the site, rather than the justification for it. However, they key point at issue had been precisely whether the factors relied on by the local authority to seek their immediate departure from the site should prevail over the interests of the applicants in being allowed more time to find, or to be allocated, suitable alternative accommodation. It was from that angle that the applicants’ counsel had made submissions on proportionality at the High Court hearing.

The scope of those proceedings had therefore not been inadequate. It had been open to that court to make its own assessment whether, given all of the circumstances and in the light of the submissions made on behalf of the applicants, it would have been justified to postpone the enforcement of the orders granted by the Circuit Court. The judge had reached his decision on that issue by means of a balancing exercise. The essential interests in play had been identified, namely, the applicants’ prospects as they stood on that date for alternative accommodation, the substantial losses that would accrue to the local authority from the delay, and the important public interest in the improvement of the local road system. The judge had also given weight to the significant period of time that would elapse, realistically, before the applicants’ appeal against the merits of the orders could be heard and the inevitable repercussions that would have on the new road scheme. From all those difference factors, and from the unlawful character of the applicants’ occupation of the site, the judge had concluded that the balance of convenience had been against the applicants.

It was true that the applicants had not obtained a full and substantive review of the orders granted by the Circuit Court. However, that was because the appeal they had lodged against those orders had ultimately not been pursued.

Finally, the Court had to determine whether the domestic authorities had acted within their margin of appreciation. A broader margin of appreciation had to be allowed, given that the interference had arisen in the context of road works of importance to the local community, and which pertained to the sphere of social and economic policy. In addition, the impugned intervention had been dictated by considerations of public safety, both for the children and adults living on the site and the construction workers seeking to carry out their tasks without harming either. Furthermore, a key issue had been whether suitable alternative accommodation had been available to the applicants and their families. That necessarily bore upon the resources available to the local authority, and as such also pertained to the sphere of the State’s social policy affecting many claimants, indicating that a broader margin of appreciation should generally be allowed.

The implications for the applicants’ enjoyment of their protected rights had to be taken into account. The applications’ occupation of the site had been unlawful. Moreover, they had not argued that they should have been permitted to remain indefinitely; their complaint related to the difficulties caused when they had been required to move on at short notice in the absence, in their view, of satisfactory alternative accommodation.

It was not the Court’s task in the present proceedings to determine the nature and extent of a local authority’s duty under Irish law to provide accommodation, or whether the local authority had fulfilled its duty in that respect towards the applicants. However, the efforts made by the local authority to secure alternative accommodation were to be taken into account. Those efforts had preceded the events at issue in the case and had continued during domestic proceedings. It had been indicated to the High Court that emergency accommodation had been available, so that the applicants had not been facing a situation of homelessness in mid-winter. Those efforts had also continued after the proceedings, with further offers of emergency accommodation that had not been accepted, and eventually a solution for each family that had seen them in new accommodation.

Overall, the Court had no basis to regard the means employed to achieve the legitimate aims pursued as disproportionate. The respondent State had therefore remained within its margin of appreciation.

Conclusion : Inadmissible (manifestly ill-founded).

(See also Chapman v. the United Kingdom [GC] 27238/95, 18 January 2001, Legal Summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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