Squatters's Protected Right of Occupancy and Right to Inviolability of the Home!
Discussion of the judgment of the Dutch Supreme Court dated 9
October 2009
On 31 March 2009, the Court of Appeal of Amsterdam has ruled that
the right of occupancy of squatters may be violated by proceeding
to clear the squatted premises. Recently, the Supreme Court has
rendered a judgment in a similar case. Also in these proceedings
the key question was whether the Public Prosecution Service has the
authority, under criminal law, to clear squatted premises that only
had been vacant for a couple of weeks before the squatting took
place.
The Facts
A group of squatters squatted an office building in Groningen on
1 July 2008. This office building is owned by the municipality of
Groningen and had actually been in use until mid-June 2008. On 26
June 2008 the municipality of Groningen asked an anti-squatting
organization immediately to assume the use of the building. On 30
June 2008 the anti-squatting organization locked up the office
building by putting new locks on the doors and by putting the
electrical entrance gate into operation again.
In these proceedings the squatters have claimed a ban on the
eviction under criminal law on the instructions of the Public
Prosecution Service of the office building they had squatted,
because this eviction would be unlawful towards them as occupants.
In their opinion, the eviction constituted a violation of the right
to inviolability of the home to which the squatters are entitled
and that is protected by the Constitution and the European
Convention on Human Rights ('ECHR'). The Court of Groningen
in preliminary relief proceedings rejected the claim (LJN: BG4440).
However, in the appeal the Court of Appeal of Leeuwarden ruled that
the squatters could invoke their right to inviolability of the home
with regard to the (squatted) building and that a forced eviction
on the instructions of the Public Prosecution Service constitutes
an impairment of this right to inviolability of the home. Only an
Act can legitimate a violation of a fundamental right provided for
in the Constitution or a treaty, provided that the violation is
sufficiently knowable and foreseeable in the Act. Since in the
opinion of the Court of Appeal of Leeuwarden there is no sufficient
legal basis for violating the right to inviolability of the home,
the Court of Appeal awarded the claim of the
squatters.
Statutory Provisions
For the sake of completeness I will briefly list the relevant
statutory provisions. Section 429sexies of the Dutch Penal Code
(Wetboek van strafrecht ('Sr.')) stipulates that
illegally assuming the use of a house that was actually still in
use with the right holder in the twelve preceding months is a
criminal offense. In Section 2 of the Police Act 1993 and Section
124 of the Judiciary Organization Act (Wet op de rechterlijke
organisatie ('RO')), the police and the Public
Prosecution Service have been given the general task of ensuring
the actual law enforcement and the criminal law enforcement of the
legal order, respectively. Section 8 of the Constitution and
Article 12 of the ECHR relate to the fundamental right to
protection of the home.
The Supreme Court
In cassation the State did not deny that the impairment of a
fundamental right such as the right to inviolability of the home,
even that of a squatter, must be based on an authority that has
been described sufficiently knowable and foreseeable in an Act. The
State is of the view that Section 2 of the Police Act and Section
124 of the RO meet these requirements.
After an elaborate discussion of the legislative history, the
Supreme Court arrived at the opinion that an authority for
criminal-law eviction of squatted premises by the police on the
instructions of the Public Prosecution Service was lacking. The
Sections 429sexies of the Penal Code in combination with Section 2
of the Police Act and Section 124 of the RO do not meet this
requirement. These sections do not constitute a sufficient basis
that can justify an infringement of the fundamental right to
inviolability of the home of Section 12 of the Constitution and
Article 8 of the ECHR. Therefore, the Supreme Court agrees with the
Court of Appeal of Leeuwarden that the criminal law-eviction of the
squatted premises is not allowed.
Consequences for
Practice
The above-discussed judgment of the Supreme Court provides a
definite answer to the question that has been occupying the minds
of squatters, the State and home owners for quite some time. It is
not allowed to evict squatted premises under criminal law, not even
if the building was vacant for less than a year. The owner of a
squatted building will therefore always have to institute civil law
proceedings if he wishes to regain the disposal of his building,
even if the building was actually only vacant for a week. Squatting
is unlawful; therefore the owner 'only' has to prove his
urgent interest in the eviction. In other words: the owner must
make a convincing case that the building will actually be used
shortly after the eviction.
All this means that the owner of a squatted building fully
depends on the collaboration of the squatters in the building when
he wants to enter the building, for instance in the event of a
viewing by a potential buyer or tenant or for the carrying out of
an inspection or measurements.
If the squatters do not want to allow the owner access to the
building, the owner will have to enforce the collaboration of the
squatters in court.
In brief, building owners will have to make sure that their
buildings are actually in use to prevent squatting. Once a building
has been squatted, it is necessary to institute civil law
proceedings to regain the disposal of the building.
In February 2009, a legislative proposal on a squatting ban has
been submitted. The purpose of the legislative proposal is to
combat squat as well as vacancy. In brief, the legislative proposal
constitutes the following. In order to combat vacancy, municipal
authorities will be able to force owners to rent their vacant
buildings by means of imposing a duty to report vacancy and
periodic penalty payments. Furthermore, a sole squatting ban is to
be introduced, that no longer depends on the period of the vacancy.
Squatting will be a crime (no longer a minor offence), carrying a
maximum prison term of two years and eight months. The Dutch Code
of Criminal Procedure (Wetboek van strafvordering
("Sv.")) will include a stipulation regarding the power
for the police to clear squatted premises.
The proposed new section in Sv. (which is an Act of Parliament)
clearly defines the power for the police to clear squatted
premises. This section constitute a sufficient basis that can
justify an infringement of the fundamental right to inviolability
of the home of squatters.
At this point, the House of Representatives has adopted the
legislative proposal. Next the Senate is going to debate on the
bill. So, to be continued.