Human Rights and Protection against Eviction in Anti-social Behaviour Cases in the Netherlands and Germany

Abstract

The European Court of Human Rights requires that any person at the risk of losing their home should be able to have the proportionality of the eviction determined by an independent tribunal in the light of the relevant principles under Article 8 echr. Consequently, member states of the Council of Europe are obliged to implement a minimum level of protection against the loss of the home. This paper analyses how the requirements are implemented in Dutch and German tenancy law with a focus on eviction cases concerning anti-social behaviour. With the help of a comparative analysis several methods of implementing the European requirements are identified. The Netherlands and Germany seem to comply technically with the requirements because of national built-in proportionality checks. However, it is questionable whether the European requirements really improve the position of tenants or whether they should be characterised primarily as a procedural hurdle that courts have to meet.

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