The inviolability of one’s home exists to protect private life and may not be interfered with unless with consent or authorized by the competent authorities. The European Court has established in Niemetz v. Germany (Application No. 13710/88, Judgement of 16 December 1992) that home can include business premises and in Buckley v. The United Kingdom (Application No. 20348/92, Judgement of 25 September 1996) that protection of the home extends to a caravan site. The European system has dealt with blatant violations of the right to respect for the home when home and property is deliberately destroyed as in several cases brought against Turkey (see Selçuk and Asker v. Turkey ,Application No. 23184/94, 23185/94, Judgement of 24 April 1998). The Court found in Cyprus v. Turkey (Application No. 25781/94, Judgement 10 May 2001) that the refusal of the authorities to allow Greek Cypriots to return to their homes in northern Cyprus constituted a violation of Article 8.
In recent years, the European Court has examined applications emphasising the intangible aspects, rather than the property aspects, of the right to respect for the home. For example, in Powell and Rayner v. The United Kingdom (Application No. 9310/81, Judgement of 21 February 1990), the applicants complained that the noise from Heathrow Airport, one of whose runways lay in close proximity to their home, interfered with their family and home life. The Court held that there was no serious ground for maintaining that either the policy approach to the problem or the content of the particular regulatory measures adopted by the United Kingdom authorities gave rise to a violation of Article 8 (see also Hatton et al. v. The United Kingdom ). In contrast, the Court did find a violation of Article 8 in López Ostra v. Spain (Application No. 16798/90, Judgement of 9 December 1994). The applicant in this case lived near an unlicensed waste treatment plant whose fumes, smell and noise were both a serious nuisance and a threat to the environment. The Spanish authorities had continually refused to act in regard to the parallel civil and criminal proceedings pending against the owners of the plant, leading the Court to find a violation of the applicant’s right to respect for her home and her private and family life. In Connors v. The United Kingdom (Application No. 66746/01, Judgement of 27 May 2004), the applicant complained, inter alia, that he was not given the opportunity to challenge in court the allegations made against him which were the basis for his family’s eviction from the plot where they had their caravan and that – unlike the owners of privately run sites, housing associations and local authority landlords – local authorities running gypsy sites were not required to prove allegations against tenants. The Court found that because of the seriousness of what was at stake for the applicant and his family who were evicted from the site where they had lived, with a short absence, for some 14 to 15 years, with consequent difficulties in finding a lawful alternative location for their caravans, in coping with health problems and young children and in ensuring continuation in the children’s education, the family was, in effect, rendered homeless, with the adverse consequences on security and well-being which that entailed. The serious interference with the applicant’s rights under Article 8 required, in the Court’s opinion, particularly weighty reasons of public interest by way of justification and the necessity for a statutory scheme which permitted the summary eviction of the applicant and his family had not been sufficiently demonstrated by the state. The power to evict, without the burden of giving reasons liable to be examined as to their merits by an independent tribunal, had not been convincingly shown to respond to any specific goal or to provide any specific benefit to members of the gypsy community. In conclusion, the Court found that the eviction of the applicant and his family from the local authority site was not attended by the requisite procedural safeguards, and consequently could not be regarded as justified by a ‘pressing social need’ or proportionate to the legitimate aim being pursued. There had, accordingly, been a violation of Article 8.
The Human Rights Committee defines the term ‘home’ in General Comment 16 : ‘“home” in English, “manzel” in Arabic, “zhùzhái” in Chinese, “domicile” in French, “zhilische” in Russian and “domicilio” in Spanish, as used in Article 17 of the Covenant, is to be understood to indicate the place where a person resides or carries out his usual occupation.’ The Committee discussed the protection of the home in the following case.
Rojas García v. Colombia
Human Rights Committee
Communication No. 687/1996
Views of 3 April 2001
Keywords: arbitrary interference with home - privacy - cruel, inhuman or degrading treatment or punishment
1. The author of the communication is Rafael Armando Rojas García, a Colombian citizen, writing on his own behalf and on behalf of his elderly mother, his two children, his brother and two sisters, three nieces and a domestic helper. He claims that they are the victims of violations by Colombia of article 7, article 14, paragraph 3 (a), article 17, paragraphs 1 and 2, article 19, paragraph 3 (a), article 23 and article 24 of the International Covenant on Civil and Political Rights . The facts as submitted seem to raise an issue also under article 9, paragraph 1, of the Covenant.
2.1 On 5 January 1993, at 2 a.m., a group of armed men wearing civilian clothes, from the Public Prosecutor’s Office (Cuerpo Técnico de Investigación de la Fiscalía), forcibly entered the author’s house through the roof. The group carried out a room-by-room search of the premises, terrifying and verbally abusing the members of the author’s family, including small children. In the course of the search, one of the officials fired a gunshot. Two more persons then entered the house through the front door; one typed up a statement and forced the only adult male (Alvaro Rojas) in the family to sign it; he did not allow him to read it, or to keep a copy. When Alvaro Rojas asked whether it was necessary to act with such brutality, he was told to talk to the Public Prosecutor, Carlos Fernando Mendoza. It was at this juncture that the family was informed that the house was being searched as part of an investigation into the murder of the mayor of Bochalema, Ciro Alonso Colmenares.
2.2 On the same day, Alvaro Rojas filed a complaint for unlawful entry into the family house with the Provincial Attorney-General’s Office in Cúcuta (Procuraduría Provincial de Cúcuta). An inquiry was initiated by the provincial authorities, which was not only not duly completed but was simply shelved on 3 November 1993. The author was not informed about the discontinuation of his complaint. He filed a new complaint with the Administrative Police in Bogotá (Procuraduría General de la Nación, Procuraduría Delegada de la Policía Judicial y Administrativa). The new complaint was also shelved on 24 June 1994, purportedly on the principle of double jeopardy. The author then submitted the case to the Administrative Tribunal in Cúcuta in order to obtain some form of reparation for the raid on his house and the use of a firearm.
3.1 The author claims that the violent assaults on the family home resulted in a severe nervous trauma, psychologically affecting the author’s sister, Fanny Elena Rojas García, who was an invalid. She subsequently died, on 8 August 1993, the violent search being considered the indirect cause of her death. Similarly, the author’s mother, aged 75, never quite recovered from the shock of the search.
3.2 The author states that the authorities, far from conducting a diligent investigation into the matter, have done everything possible to cover up the incident. No attempt was ever made to establish the responsibility either of the authorities that authorized the raid or of those who carried it out, including the officer who fired a gun in a room where there were young children.
3.3 The author contends that the events described constitute violations of article 7, article 14, paragraph 3 (a), article 17, paragraphs 1 and 2, article 19, paragraph 3 (a), article 23 and article 24 of the Covenant.
10.3 The Committee must first determine whether the specific circumstances of the raid on the Rojas García family’s house (hooded men entering through the roof at 2 a.m.) constitute a violation of article 17 of the Covenant. By submission of 28 December 1999, the State party reiterates that the raid on the Rojas García family’s house was carried out according to the letter of the law, in accordance with article 343 of the Code of Criminal Procedure. The Committee does not enter into the question of the legality of the raid; however, it considers that, under article 17 of the Covenant, it is necessary for any interference in the home not only to be lawful, but also not to be arbitrary. The Committee considers, in accordance with its General Comment No. 16 [?] that the concept of arbitrariness in article 17 is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. It further considers that the State party’s arguments fail to justify the conduct described. Consequently, the Committee concludes that there has been a violation of article 17, paragraph 1, insofar as there was arbitrary interference in the home of the Rojas García family.
A similar case was brought before the Inter-American Commission, in García v. Peru,Case 11.006, Decision of 17 February 1999, Report No. 1/95. On 5 April 1992, army soldiers forced their way into the home of former Peruvian President Alan García Pérez with ‘a superior order of arrest against him’. The petitioners alleged that Dr. Alan García Pérez’ life and personal safety were threatened, and his wife and children were held incommunicado and under house arrest and a considerable number of private family documents were removed. The petitioners claimed that in the assault on the home of the former President, the right, inter alia, to the inviolability of domicile and of private papers were violated. The Commission found a violation as regards the right to privacy of Mr. Garcia and his family.
The guarantee of the inviolability of the domicile and of private papers must give way when there is a well-substantiated search warrant issued by a competent judicial authority, spelling out the reasons for the measure being adopted and specifying the place to be searched and the objects that will be seized.
The 1979 Constitution of Peru stipulated the inviolability of domicile and of private papers except when an order has been issued by a competent judicial authority authorizing the search, explaining its reasons and, where appropriate, authorizing the seizure of private papers, while respecting the guarantees stipulated by law. See Article 2, subparagraphs 7 and 8 of the Constitution in force until December 31, 1993.
Based on these concepts, the Commission concludes that the warrantless search of Dr. García’s home and the seizure of private family papers - actions committed by Peruvian Army soldiers - were committed in complete disregard of the procedural requirements stipulated in the Constitution. The violation of those requirements indicates that the Government of Peru failed to guarantee to Dr. Alan García and to his family the full exercise of their right to privacy.
The arguments made by the Government of Peru to the effect that the Army soldiers surrounded the residence of Dr. García Pérez in order to protect him are, in themselves, insufficient. Protection of a private residence does not call for action by heavily armed soldiers nor for the use of war tanks equipped with canons, small tanks or armored troop carriers.