Tuesday, 22 March 2011

Application to the European Court of Human Rights for Margaret Jaconelli

Govan Law Centre (GLC) today submitted an application to the European Court of Human Rights (ECrtHR) in Strasbourg for Mrs Margaret Jaconelli. 

The application seeks just satisfaction, an order to require the Scottish Government to ensure that Scots law on CPOs of dwelling-house (and eviction thereafter) is compliant with the European Convention of Human Rights, and a quashing of the CPO made against Mrs Jaconelli's home. 

GLC's Principal Solicitor's Mike Dailly, was required to enter through a small window of Mrs Jaconelli's barricaded home, in order to discuss her application to the ECrtHR, take her instructions and complete the necessary legal paperwork in order to lodge an application to the European Court.

The application to the ECrtHR argues that: the applicant, Mrs Jaconelli, was unlawfully deprived of her possessions as she did not obtain a fair trial as required by Article 6 of the ECHR in relation to the making of the Compulsory Purchase Order which deprived her of ownership of her property. Accordingly, Article 1 of the First Protocol and Article 6 have been violated.

The applicant had no equality of arms, she being unrepresented and there being no legal aid available. The applicant was unable to present a fair defence in proceedings which were highly technical. She did not receive a fair hearing in terms of Article 6. Reference is made to the cases of Steel and Morris v. UK (Application 68416/01); Ashingdane v. UK (Application 8225/78); Golder v. UK (Series A No.18 of 1975); and Airey v. Ireland (Application 6289/73).

The applicant’s right under Article 8 of the ECHR to respect for her private and family life and her home has been violated. The applicant relied on the decision of the UK Supreme Court in Manchester City Council v Pinnock, 2010 3 WLR 1441 for authority for the proposition that she was entitled to found upon Article 8 as a defence to the eviction action against her.

The case of Pinnock was authority (at paragraph 53) for the proposition that in response to an Article 8 defence the Council had to ‘plead’ and ‘adduce evidence’ to justify its interference. No examination of the disputed facts was permitted to take place by the court; reference is made to Connors v. UK (2004) 40 EHRR 189 at paragraphs 81-83 and 92; McCann v. UK 40 EHRR 189; Zehentner v. Austria (Application 2008/02) and Paulic v. Croatia (Application 3572/06).

Under reference to paragraph 92 of the European Court of Human Rights decision in Connors v. UK the applicant in the present case contends that the Scottish court procedure was insufficient to satisfy the requirements of Article 8 because Glasgow City Council was not required to establish any substantive justification for evicting the applicant. There was no opportunity for an examination of the facts in dispute between the parties and the applicant’s Article 8 rights have therefore been violated.

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