DISSENTING OPINION OF JUDGE O’LEARY

1. A majority of the Chamber has voted in favour of finding two violations of Article 8 of the Convention: the first due to the failure of the Latvian State to observe positive procedural obligations in relation to the applicant’s right to respect for his “home”; the second due to the unlawfulness of the interference by the bailiff with that same right.

2. In addition, the Chamber has concluded that the applicant did not have at his disposal an effective remedy allowing him to vindicate his right to respect for his home, thus finding a further violation of Article 8 combined with Article 13.

3. I respectfully disagree with my colleagues.

4. Firstly, on the basis of the information provided to the Court in relation to the applicant’s individual case and the remedies available pursuant to Latvian law, I consider that he has not complied with the exhaustion requirements.

5. Secondly, the case having been deemed admissible by my colleagues, I consider that the positive procedural obligations developed by the Chamber under Article 8 in relation to what is alleged to have been an “eviction” stemming from an undefined and unregulated private law relationship (an “agreement on the use of premises”) are both vague and potentially far-reaching.

6. As regards the violation relating to the actions of the bailiff, although the finding of “unlawfulness” seeks to delimit the scope and effect of the judgment by attaching the right to a prior judicial assessment to the requirements of domestic law, the reasoning employed in the judgment risks going further.

7. Before addressing the admissibility and merits of the case, it is important to set out succinctly the facts and sequence of events on which the applicant’s case turns.

8. The “agreement on the use of premises” on which the applicant relies appears to have been agreed with a series of companies authorised by SIA Aeron (although there is some dispute about whether all acts were so authorised) when the apartment was owned by the latter. Neither the Latvian Civil Law nor the Law on Residential Tenancy define an “agreement on the use of premises” (§ 35 of the judgment). Thus, both the applicant and the entit(ies) which concluded this agreement seem to have entered into some form of unregulated subletting.

9. According to the information in the case file, the applicant had registered his place of residence in another region for many years, as well as in other properties. The length of occupancy of the apartment which he claimed to be his “home” based on use of premises was 1 year and ten months.

10. According to the judgment, the “last signed contract” was to run until 1 July 2011. The question whether the last contract signed entailed the right to request an extension of the agreement is in dispute (see § 5). Even if such a right to request was envisaged, the circumstances in which a request had to be granted pursuant to the agreement on which the applicant relied are not explained. The circumstances in which the refusal of an extension request of a regulated “tenancy agreement” could be justified under the Law on Residential Tenancy are explained in the domestic law part of the judgment (§ 31). However, it also transpires from that law that a refusal to extend could be challenged before a court (idem, see further below).

11. The residential building in which the apartment was located was sold at public auction on 9 February 2011. On 27 April 2011, the Riga Regional court confirmed the memorandum of sale, ruled that the new owner (SIA Ektornet Residential Latvia) was to be registered in the land register and ordered its entry into possession. An enforcement order with respect to this ruling was issued on 1 November 2011.

12. On 2 August 2011, after the expiry of the applicant’s “last signed contract” (leaving aside the contested issue of possible rights to request extensions and the disputed nature of that contract), the former and new owners signed a certificate of delivery having established that there were no liens, no valid lease or tenancy agreements (§§ 7 and 21 of the judgment). This legal position was later borne out by the first instance court in January 2014 in the civil proceedings (see § 28) and by the findings made when discontinuing the criminal proceedings in August 2016 (see § 21). A search in the population register in June 2012 revealed that no-one was declared to be living there.

13. Considering unilaterally that the “agreement for use of premises” was de facto extended after 1 July 2011, the applicant sought to make payments for such use, which payments were returned with an indication that there was no tenancy agreement (§ 8). Although the new owner, SIA Ektornet Residential Latvia, first indicated that the apartment should be vacated by June 2012, it did enter into talks with the applicant, offering him a four-month tenancy agreement, but without the right to seek an extension. The applicant refused. He was then advised to vacate the apartment, barring which he was told that supplies of electricity and water would be cut off.

14. When the police were asked by the applicant to intervene to stop the new owner and its private security from changing the locks on the apartment on 8 November 2012 they concluded that the dispute was a private one and left after establishing that the delivery certificate had indicated that the apartment was not leased. When the bailiff intervened later in December 2012, having notified the former owner in November and requested that the apartment be vacated, he acted pursuant to the enforcement of the court order on entry into possession (§§ 14-15).

15. It is also necessary to set out what is known about the relevant provisions of Latvian law.

16. It is apparent from the information available in the file on domestic law and from the few decisions taken by the domestic authorities and courts in the applicant’s case that Latvian law provides for a mix of criminal and civil law remedies in cases of this nature: criminal proceedings for breach of the inviolability of the home and arbitrariness (§§ 19 and 37 and ss. 143 and 279, respectively, of the Criminal Law); civil proceedings seeking recognition of a tenancy relationship (§§ 9, 25, 28); civil proceedings for restoration of physical possession of the apartment (§§ 25 and 28); interim measures or stays of enforcement (§ 26 and ss. 560 and 561 of the Civil Procedure Law); claims for damages (§§ 28, 34 and 60 and ss. 1635 and 1779 of the Civil Law), and civil proceedings to challenge a refusal to extend a tenancy agreement (§ 31 and s.6 of the Law on Residential Tenancy) or to ensure recognition of the tenancy agreements concluded by previous owners (§§ 31 and 38 and s. 8 of the Law on Residential Tenancy).

17. From the information on domestic practice provided in the judgment, it would also appear that administrative proceedings can eventually be instituted if a bailiff has not verified if any tenancy agreements are in place before enforcing entry into possession (§ 39).

18. In addition, as stated in § 39 of the judgment, referring to a 2019 judgment of the Senate of the Supreme Court: “proceedings on the entry into possession did not address the question of the tenancy rights of the persons living in the residential premises. This question had to be solved by bringing proceedings on recognising tenancy agreement [as] void or seeking its termination ” (emphasis added).

19. It is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights. The Court should not take on the role of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected at domestic level.

20. The rule of exhaustion of domestic remedies is based on the assumption – reflected in Article 13 of the Convention, with which it has close affinity – that there is an effective remedy available in respect of the alleged violation. It is an indispensable part of the functioning of the Convention system of protection (see further Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69‑77, 25 March 2014, for an overview of the above general principles and those which follow).

21. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system. The Court is not a court of first instance. It is ill-placed to make findings of basic facts and not competent to interpret domestic law.

22. As regards the question to which remedies, if any, an applicant is required to have recourse, three things are worth noting. Firstly, there is no obligation to have recourse to remedies which are inadequate or ineffective. To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success. Secondly, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 2009). Thirdly, if there are a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required.

23. In the present case, on 8 November 2012, one year and nine months after the public auction, one year and seven months after entry into possession was ordered by the regional court and one year and three months after the certificate of delivery was signed, in which it was recorded that there were no liens, leases or tenancy agreements encumbering the property bought, the applicant first instituted civil proceedings seeking recognition of his tenancy relationship. Following a complaint lodged with the police one day later, criminal proceedings relating to inviolability and arbitrariness were instituted.

24. Crucially, the applicant withdrew his civil proceedings in October 2014, such that, when the criminal proceedings were discontinued in August 2016 for the lack of elements of a crime, the nature, if any, of the tenancy relationship between the applicant and the former and new owners of the apartment, had not been the subject of civil proceedings before the domestic courts. When withdrawing his civil claim, the applicant declared in open court that he was fully aware of the consequences of the withdrawal.

25. In the separate civil proceedings introduced by the applicant against the bailiff under s. 620 of the Civil Procedure Law, the district and regional courts held that the applicant had no standing to challenge execution of the Regional Court’s enforcement order as he was not the debtor. Both courts explained to the applicant that he could prove his claim to the apartment in question by submitting a claim to the courts of general jurisdiction.

26. The majority reject the Government’s objection on grounds of non-exhaustion since they consider that the case is about arbitrary eviction without a lawful eviction order and not whether the applicant was a tenant under Latvian law (see § 65 of the judgment). However, as per the majority, “the crux of the applicant’s complaint before this Court is that he was evicted without his right to reside in the apartment – or the absence thereof – having first been determined by the domestic courts” (idem). I agree that the latter question lies at the heart of the case. However, that question could only be determined either in the context of civil proceedings or by a combination of civil and criminal proceedings given the specificities of Latvian law and the nature of the dispute. The majority consider the case to be admissible because of the criminal proceedings instituted following the applicant’s complaint to the police. However, for several reasons I consider this approach untenable.

27. Firstly, it is clear from the discontinuation of the criminal proceedings (§ 21) that the applicant should not have abandoned the civil ones. Recognition of the nature of his tenancy relationship, if any, and its legal effects was central to the decisions of the authorities in relation to the inviolability and arbitrariness complaints.

28. Secondly, whether there has been an eviction, whether it is arbitrary, and what safeguards and protections the law must afford the occupier are all pertinent considerations. As indicated by the Latvian Supreme Court in the 2019 ruling referred to in the judgment, the question of the tenancy rights of the persons living in residential premises has to be resolved by bringing proceedings on recognising tenancy agreement. The majority has implicitly opted for a line of exhaustion case-law – where one suitable remedy has been exhausted it is not necessary to require an applicant to exhaust another similar one – which is inapposite in the context of a dispute between two private parties such as that at issue in this case. It is neither excessively formalistic nor demanding to require of an applicant to exhaust a combination of civil and criminal remedies before seeking to establish the responsibility of a State, as a matter of international law, pursuant to positive procedural obligations incumbent on law enforcement officers and negative obligations opposable in relation to the actions of a bailiff.

29. Thirdly, the need for the applicant to have exhausted civil remedies is borne out not just by the 2019 domestic judgment referred to but also by the majority’s reasoning in relation to the applicant’s complaint under Articles 8 and 13. Having deemed the application admissible because of the effectiveness of the criminal law remedy (in theory), the majority consider that the remedy was ineffective (in practice) as it was “too limited in its scope and offered no effective protection in a situation where the tenancy rights were in dispute ” (§ 100) and as regards the bailiff it did not consider “the lawfulness of the actions directed at the applicant as the person living there” (idem). Thus, according to the majority judgment, “due to the domestic authorities’ approach to the applicant’s case, [the criminal proceedings] did not prevent the alleged violation or its continuation and did not offer a redress, primarily owing to the ongoing civil dispute on the tenancy relationship between the apartment owner and the applicant ” (emphasis added). The text in italics underlines in my view why the Court should not have deemed irrelevant the applicant’s failure to pursue the necessary civil proceedings regarding recognition of his tenancy relationship (or indeed a different civil remedy, see further below). The majority inadvertently recognise that the weakness they perceive in the criminal remedy resides in the withdrawal of the parallel civil proceedings. Incidentally, it is incorrect to refer to the “ongoing civil dispute” since the criminal proceedings continued until 2016, while the civil proceedings had been withdrawn by the applicant in 2014.

30. Thus, I cannot agree with my colleagues when they dismiss as irrelevant, alone or combined, remedies which cover “claims for recognition of tenancy relationships, restoration of physical possession or reimbursement of damages caused by the removal of his belongings” (§§ 65 and 99).

31. In addition, and crucially, it is a fairly standard tenet of civil law, reflected in the case-law of the Court on Article 6, that civil litigants are required to show a certain degree of diligence (see Zubac v. Croatia [GC], no. 40160/12, § 93, 5 April 2018, and the authorities cited therein). Whatever the legal nature and effects under Latvian law of “an agreement on the use of premises”, it is uncontested that the last signed contract or agreement only ran until 1 July 2011. Prior to the assertion by the new owner of its rights and the enforcement by the bailiff of the entry into possession and the enforcement order of the Riga regional court in November-December 2012, the applicant had had ample time to introduce civil proceedings seeking recognition of the tenancy-like relationship he asserted, civil proceedings to challenge a refusal to extend a tenancy agreement (see § 31 and s.6 of the Law on Residential Tenancy) or civil proceedings to ensure recognition of the tenancy agreements concluded by previous owners (see §§ 31 and 38 and s. 8 of the Law on Residential Tenancy). He did none of these things with a view to enforcing by means of available civil proceedings respect for his right to what he argued was his “home”.

32. Even if one ignores the failure to exploit these domestic civil remedies prior to the events in November-December 2012 which gave rise to the application before the Court, other civil remedies clearly existed to vindicate any right he might have had and which right might have been infringed during those events. The applicant had at his disposal, for example, civil proceedings for restoration of physical possession of the apartment (§§ 25 and 28) or claims for damages (§§ 28, 34 and 60 and ss. 1635 and 1779 of the Civil Law).

33. It is not sufficient in my view, when faced with clear evidence of other civil law remedies and an applicant who has tried none of them, to simply pin the burden on the respondent Government and conclude that “the Court has no grounds to consider that a civil-law remedy for the protection of his Convention rights was available to the applicant” (§ 99).

34. In relation to the negative and unlawful interference by the bailiff, the majority considers that “a mechanism whereby tenants can seek a subsequent determination of the fact that they had had the right to reside in the dwelling from which they have already been removed cannot be regarded as an adequate procedural safeguard capable of preventing unjustified interference with the right to respect for one’s home. It places a disproportionate burden on tenants who are forced to defend their rights through civil litigation after they have already lost their home” (see § 87). This reasoning, which seems firstly to presuppose a lawful tenancy, seems secondly to provide a right to remain unlawfully in the premises of another for as long as protracted legal proceedings may take, excluding damages as an effective remedy to compensate ex post facto any unlawfulness or arbitrariness in the manner of one’s removal. Were one to have approached this case from the perspective of the rights of the lawful owner under Article 1 of Protocol n o 1, much of the majority’s reasoning in relation to domestic civil remedies would not hold up in my view.

35. According to the Court’s case-law, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress. All of the domestic judgments and decisions relied on in support of the majority judgment (§§ 38 – 41) date from between 2013 and 2019. They are the result of litigants relying on the multitude of civil law remedies available under the Latvian Civil Procedure Law and the Law on Residential Tenancy. Not only do they relate to the same time period as that during which the applicant could and should have sought to test and vindicate his rights before the domestic courts, but they demonstrate that his prospects of an effective remedy were not obviously futile. It cannot be forgotten that the effectiveness of a remedy within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant and the mere fact that an applicant’s claim might fail is not in itself sufficient to render the remedy ineffective (see O’Sullivan McCarthy Mussel Development Ltd. v. Ireland , no. 44460/16, § 160, 7 June 2018).

36. Finally, it is important to stress that the situation in the present case is totally different from one where there exist parallel criminal and civil remedies and where the Court’s case-law clearly states that the victim is not obliged to pursue both paths. The core question in this case was one of civil law and any criminal remedy was dependent on determination of the civil law question whether there was some form of “tenancy” agreement. The civil and criminal remedies available in the present case did not aim at the same goal. Rather, the criminal remedy appears subordinated, in the case of a challenge by the alleged victim of a violation of his or her “home”, to the assessment of any entitlement to reside in the impugned premises by civil courts.

37. On the merits, the majority judgment finds two separate violations of Article 8 of the Convention, as well as a violation of Articles 8 and 13 combined.

38. According to the Court’s case-law, the notion of “home” under Article 8 is an autonomous concept which does not depend on the classification under domestic law. Whether a premises constitutes a “home” under the protection of Article 8 § 1 depends on the factual circumstances, namely the existence of sufficient and continuous links with a specific place ( Winterstein and Others v. France , no. 27013/07, § 141, 17 October 2013, with further references therein). The protection afforded by Article 8 is not limited to lawful residence.

39. Given the factual circumstances in the present case – the short length of the “use of premises” agreements which the applicant had entered into with three successive companies, with the authorisation (disputed) of the former owner of the apartment, the fact that he had registered his residence elsewhere and the fact that the disputed apartment seems also to have been occupied by a third party, J.P. ˗ it is questionable whether Article 8 is applicable in the circumstances of the present case. Without the establishment of facts by a domestic court, the Court is badly placed to judge the contrasting, even contradictory, facts presented by the parties.

40. As regards the first violation found, the actions of the police – called to the residential premises on 8-9 November and subsequently responsible for the criminal proceedings instituted ˗ are assessed on the basis of an overall balancing test pertaining to their positive obligations (§§ 74 – 81).

41. According to the majority, a State’s positive obligations are triggered, in circumstances involving a private dispute over property, when an individual calls the police to defend himself against persons trying to evict him by force without any legal authorisation to do so (§ 76). The judgment refers to the fact that Article 8 protection of respect for one’s home is not limited to premises which are lawfully occupied and links this to the domestic law requirement that “no person could be evicted without a valid eviction order” (§ 78). The basis for the latter statement is the Ombudsman’s report of 2013 and the references to provisions of the Law on Residential Tenancy (§§ 30 – 32). However, sections 28 and 44 of the Law on Residential Tenancy use remarkably laconic formulations (§ 32). Even if the Court, acting as a court of first instance on questions of fact and domestic law, was to derive from them a requirement of a prior court assessment in all cases where an “eviction” is alleged by a person who claims to be a “tenant”, the draft pins the triggering of the State’s positive procedural obligations both to the general Article 8 requirements of the Convention and to Latvian law as interpreted by the Court, referring to some domestic court decisions in the years following the applicant’s case. The majority’s position contradicts the assessment of both the Latvian prosecutors in the criminal proceedings and of the first instance court in the civil proceedings which the applicant withdrew (compare §§ 21 and 28 with the Court’s assessment §§ 77 and 79). The judgment of the Supreme Court of 2019 does not sit well with it either. Both in terms of the interpretation of domestic law and the actions of the police, it is the report of the Ombudsman which seems principally to inform the Court’s position. I have no difficulty conceding that the assessment of the prosecutors in 2016 when discontinuing the proceedings could have been more substantial (see § 80 of the judgment where they are criticised), but can one discount the impact on their assessment of the applicant’s decision to withdraw his related civil proceedings two years earlier?

42. The actions of the bailiff are also found wanting given the lawfulness requirement of Article 8. The applicant’s “eviction” is found not to have had a legal basis and any existing procedural safeguards under domestic law are considered to have failed to prevent the arbitrariness (§§ 82 – 90).

43. In the absence of the exhaustion of domestic remedies which could have established the relevant facts and the requirements of national law, the Chamber decides itself that the applicant was “evicted” (§ 82). As regards whether the actions of the bailiff were provided by law, again the Court decides that an owner may evict a tenant or a person unlawfully occupying an apartment only by means of court proceedings (§ 85). Leaving aside whether the enforcement of the court order on entry into possession was fit for purpose in a case such as this, as illustrated above, since the expiry of his contract or agreement in July 2011 the applicant had had civil remedies at his disposal to assert his right to remain in his “home”. He had had ample opportunity to challenge what he considered a refusal to grant his request for extension of his tenancy relationship/agreement/use of premises. Despite not having had recourse to any of these remedies, responsibility for events in November and December 2012 is placed at the door of the bailiff who, according to the domestic courts which were seised, deemed the latter’s actions to have been in accordance with domestic law.

44. The judgment is not limited to a Latvian law requirement that eviction can only occur after court proceedings. It appears to extend protection to persons who have failed to exhaust remedies to establish what they argue is their valid ground to reside in a given premises, shifting to the State a positive procedural and operational burden in private property disputes despite the existence of an extensive regulatory framework and available civil remedies.

45. The domestic background to this case may be an important key to understanding the majority judgment. Following the financial crisis in 2008 and subsequent years many mortgaged properties were sold at public auctions or by other means to enforce judgment debts. A housing and rental crisis ensued for owners in arrears and tenants in properties which changed ownership.

46. The present case no doubt highlights structural problems in Latvia where property owners and those on the rental market appeared to resort to unregulated forms of “tenancy” such as “use of premises”. This problem may indeed have given rise to many legal questions regarding the rights and obligations of owners and occupants. Furthermore, the systemic nature of the problem in Latvia is highlighted in the Ombudsman’s report. Problems of this nature can be seen in many Council of Europe States whose property and rental markets were deeply affected by the crash. The present judgment could thus be welcomed if it casts light on the systemic difficulties in Latvia at the relevant time.

47. However, for the reasons explained above, I consider that the case should have been deemed inadmissible for non-exhaustion. The failure of the applicant to pursue appropriate and available domestic remedies means that the judgment on the merits fails to satisfy, riddled as it is with difficulties which flow from the failure to respect the exhaustion requirement. Furthermore, although the intention was perhaps to be Latvia-specific, the judgment risks extending the scope and protection afforded by Article 8 unnecessarily. It is for these reasons that I could not, regretfully, join my colleagues.