Information Note on the Court’s case-law No. 142
June 2011
Ehrmann and SCI VHI v. France (dec.) - 2777/10
Decision 7.6.2011 [Section V]
Article 10
Article 10-1
Freedom of expression
Criminal conviction for breaching planning regulations applicable to external murals: inadmissible
Facts – The first applicant is a visual artist who, as part of a collaborative project, has transformed a former seventeenth century estate into an artists’ residence and an open-air museum exhibiting more than three thousand works of art, now entitled “La Demeure du Chaos”. Since 2006 this estate, which has the status of a public-access building, has attracted about 120,000 visitors per year and been the subject of numerous press articles and featured in art publications, films and reports. It belongs to the second applicant, a property company in which the first applicant holds the majority of shares. The property is located within sight of a church and a manor house, both of which are classed as historical monuments. In 2008 the first applicant was convicted of four criminal offences for failure to comply with the urban-planning regulations. He was ordered to pay fines of EUR 30,000 for having carried out or commissioned work that did not require planning permission, without a preliminary declaration, on the surrounding wall and façade of the estate, for having carried out or commissioned work that changed the appearance of constructions that were directly visible from buildings classed as historical monuments without having sought preliminary authorisation as required by the Heritage Code, and for having carried out or commissioned work in contravention of the land-use plan. The domestic courts found that the changes made to the property’s surrounding wall and the facade in question were in total disharmony with the neighbouring buildings, which were constructed in a very traditional style. The first applicant was given nine months to restore the areas in question to their previous condition, with daily fines of EUR 75 to be paid on expiry of that period. The second applicant was ordered in civil proceedings to pay, jointly and severally with the first applicant, the sum of one euro in damages to the municipality.
Before the Court, the applicants alleged, in particular, that the penalty imposed on them represented a disproportionate interference with their freedom of artistic expression.
Law – Article 10: The Court noted that the majority of cases regarding freedom of artistic expression examined by it had concerned criminal convictions for the purpose of protecting morals or preventing disorder. In the instant case, the dispute did not concern the protection of morals but rather the prevention of disorder, which referred to protection of the rights of others. The criminal and civil penalties imposed on the applicants amounted to interference by the public authorities in the exercise of their freedom of expression. However, this interference had been “prescribed by law”, namely the relevant provisions of the Town Planning Code and the Heritage Code. Like the domestic courts, the Court considered that the urban-planning regulations pursued a legitimate aim and represented measures that were necessary in a democratic society for the prevention of disorder, which implied protection of the common heritage and compliance with the collective will as expressed in urban-planning choices. In those circumstances, the arguments put forward by the domestic authorities were both relevant and sufficient.
In the instant case, the restriction on the applicants’ freedom of expression was limited to the surrounding wall and the facade, which were directly visible from buildings that were classed as historical monuments, and by no means concerned the estate in its entirety. The public interest, determined in this instance by protection of the heritage, required that the applicants comply with certain urban-planning regulations. In reality, the latter were merely subject to the granting of preliminary authorisation before any work was carried out. In those circumstances, the restrictions on freedom of expression affected only one form of exercise of this right, in the general interest and in a very limited manner. Furthermore, the criminal and civil penalties and the order to restore the premises to their previous state could not be considered disproportionate, given that the restrictions in question concerned only the work which was visible to the public from the exterior of the property and did not concern the works of art which were displayed inside the estate. The imposition of a criminal penalty on the first applicant had been legitimate, especially since, while the amount of the fine was significant, it could not be considered excessive. The interference could therefore be considered “necessary in a democratic society”.
Conclusion: inadmissible (manifestly ill-founded).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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